## Facts

- Michael McKevitt faced prosecution in Ireland for alleged terrorist-related offenses.
- David Rupert was a key prosecution witness in the Irish case.
- Journalists interviewing Rupert for a planned biography recorded extensive, nonconfidential interviews and kept the tapes in the United States.
- McKevitt applied in federal district court for production of the tapes under 28 U.S.C. § 1782(a), which permits discovery for use in foreign proceedings if the materials are not privileged.
- The district court granted the application and ordered the journalists to produce the recordings.
- The journalists appealed and sought a stay pending appeal, asserting a federal common-law reporter’s privilege grounded in the First Amendment.
- The court of appeals denied a stay; the tapes were produced, mooting the appeal from the production order.

## Issues

1. Whether a federal common-law reporter’s privilege shields journalists from a § 1782 order compelling production of nonconfidential interview recordings for use in a foreign criminal proceeding.
2. How Branzburg v. Hayes and Rule 501 inform recognition and scope of any qualified reporter’s privilege in federal court, particularly for nonconfidential materials held by nonparty journalists.
3. Whether an appellate court may explain its reasons for denying a stay after disclosure moots the underlying appeal.

## Decision

- The Seventh Circuit held the appeal from the production order was moot because the tapes had already been disclosed and could not practically be clawed back.
- The court issued an opinion explaining its earlier denial of a stay and concluded the journalists had not shown a privilege barring disclosure.
- The court rejected recognition of a broad federal reporter’s privilege covering nonconfidential interview tapes in these circumstances.
- The court treated the recordings as ordinary, relevant evidence sought for use in a criminal defense and not protected by any established federal privilege.

## Legal Principles

- Under 28 U.S.C. § 1782(a), federal courts may order production for use in foreign proceedings so long as the material is not privileged.
- Federal privileges under Federal Rule of Evidence 501 are narrowly construed and must be justified by “reason and experience.”
- Branzburg v. Hayes does not establish a First Amendment-based reporter’s privilege to resist compelled evidence; any claimed qualified privilege is limited and, at most, associated with protecting confidentiality interests.
- Nonconfidential materials from a known witness do not present the core confidentiality concern sometimes invoked to justify reporter protections.
- When disclosure has already occurred, an appeal may be moot because effective relief is unavailable; an appellate court may still explain the basis for denying interim relief such as a stay.

## Conclusion

The Seventh Circuit treated nonconfidential recorded interviews as unprivileged evidence discoverable under § 1782 for use in a foreign criminal case, rejected the asserted reporter’s privilege as a basis to block production, and explained its denial of a stay even though disclosure mooted the appeal.


McKevitt v. Pallasch, 339 F.3d 530 (7th Cir. 2003)