## Facts

- Marine Corps Staff Sergeant Frank D. Wuterich was accused in a general court-martial of offenses arising from the deaths of Iraqi civilians in Haditha, Iraq.
- Wuterich gave an on-camera interview to CBS Broadcasting, Inc. (CBS) about the incident. He was represented by counsel during the interview and understood that some or all of his statements could be televised.
- CBS broadcast only part of the interview and retained additional raw footage and outtakes that were not aired.
- The government subpoenaed CBS for the interview materials, including the unaired outtakes, asserting the footage contained relevant statements bearing on contested issues in the court-martial.
- The military judge initially quashed the subpoena as unreasonable and oppressive in light of the limited relevance of the requested material.
- On review, the Court of Appeals for the Armed Forces vacated and remanded, directing the military judge to conduct an in camera review and make more developed findings about the content of the materials, their necessity, and any asserted news-gathering privilege.
- On remand, the military judge reviewed eight DVDs in camera and found that three DVDs contained information relevant and material to issues in the case.
- The military judge also concluded that a qualified reporter’s privilege applied to CBS’s unpublished newsgathering materials. The judge ruled that compelled production required a strong showing of need and lack of reasonable alternatives.
- Although the judge found relevant and necessary information on the three DVDs, the judge determined the substance of that information had already been disclosed through other sources available to the parties. The judge again quashed the subpoena.
- The government appealed the renewed order quashing the subpoena.

## Issues

1. Whether a qualified reporter’s privilege applies in courts-martial to unpublished materials gathered by journalists, including unaired interview outtakes.
2. What showing the government must make to compel production of such unpublished journalistic materials (including relevance/necessity and lack of alternative sources).
3. Whether the military judge abused discretion by quashing the subpoena after finding parts of the unaired footage relevant and material, based on a finding that the same substantive information was obtainable elsewhere.

## Decision

- The court affirmed the military judge’s order quashing the subpoena to CBS for the unaired interview materials.
- The court accepted that a qualified reporter’s privilege may protect unpublished newsgathering materials in the court-martial setting.
- The court upheld the military judge’s use of a demanding standard requiring the party seeking disclosure to show the information is highly relevant and necessary to the litigation and not reasonably obtainable from other sources.
- The court concluded the military judge did not abuse discretion in determining that, even though three DVDs contained relevant and material information, the government failed to show unavailability because the substance had already been disclosed through other sources in the case.
- Accordingly, the reporter’s privilege applied on these facts and supported quashing the subpoena.

## Legal Principles

- A qualified reporter’s privilege can apply in military justice proceedings to protect unpublished materials gathered in the course of newsgathering.
- To overcome the privilege and compel production, the requesting party must make a strong showing that the information is highly relevant and necessary to the case and cannot be obtained by reasonable alternative means.
- In camera review is an appropriate method for a military judge to assess relevance, materiality, and whether requested unpublished materials are cumulative of other available evidence.
- If the substantive information in unpublished journalistic materials is available from other sources, compelled production is generally not warranted and a subpoena may be quashed.
- Appellate review of a military judge’s ruling on a subpoena and related privilege questions is deferential and focuses on whether the judge abused discretion.

## Conclusion

United States v. Wuterich, 68 M.J. 511 (2009), upheld the quashing of a government subpoena seeking CBS’s unaired interview outtakes, holding that a qualified reporter’s privilege protected the unpublished materials where, despite some relevance, the government failed to show the substantive information was unavailable from other sources.
