## Facts

- Martha von Bülow, acting through next friends, sued her husband, Claus von Bülow, in federal civil litigation alleging he caused her permanent coma and asserting federal and state claims, including RICO.
- During discovery, plaintiffs served a subpoena duces tecum on Andrea Reynolds, a third-party witness and close associate of Claus who assisted during his criminal defense.
- The subpoena sought investigative reports concerning Martha’s children, Reynolds’s trial notes, and Reynolds’s unpublished manuscript about the von Bülow prosecution.
- Reynolds refused production, asserting (1) a First Amendment reporter’s privilege and (2) attorney-client privilege based on her claimed role as a paralegal or agent of defense counsel.
- The district court rejected both privilege claims, ordered production, and entered a confidentiality order limiting dissemination to protect Reynolds’s commercial interests in the manuscript.
- After Reynolds continued to withhold the manuscript, the district court held her in civil contempt and imposed a daily fine, stayed pending appeal.
- Reynolds appealed the contempt order and related discovery and confidentiality orders.

## Issues

1. Whether a third-party witness may invoke a First Amendment reporter’s privilege to withhold notes, investigative materials, and an unpublished manuscript in civil discovery.
2. Whether attorney-client privilege (or related protection) applies to documents held by a non-lawyer claiming paralegal/agent status for a criminal defense team.
3. Whether civil contempt was proper to enforce compliance with the district court’s discovery order after privileges were rejected.

## Decision

- The Second Circuit affirmed the orders compelling production and the confidentiality order.
- The court held Reynolds could not invoke a reporter’s privilege because she did not gather the information with intent, at the outset, to disseminate it to the public.
- The court held Reynolds failed to meet her burden to establish an attorney-client or qualifying agency relationship with counsel sufficient to shield her materials.
- The court affirmed the civil contempt order because the production order was clear, Reynolds knew of it, and she refused to comply.

## Legal Principles

- A claimant qualifies for a reporter’s privilege only if the information was gathered as part of news-gathering with intent, when collected, to disseminate it to the public; later decisions to publish do not create the privilege.
- A threshold showing of genuine journalistic newsgathering is required before any balancing of First Amendment interests against discovery needs.
- The party asserting attorney-client privilege bears the burden of proof; extending protection through a non-lawyer requires a clear showing of agency under counsel’s direction and confidential communications for legal advice.
- Conclusory assertions of paralegal or advisory status are insufficient to establish attorney-client privilege or related protection.
- Civil contempt may be used to enforce discovery when a valid, clear order compels production and the witness knowingly refuses compliance.

## Conclusion

The Second Circuit held that a third-party witness who gathered information for private purposes could not invoke a reporter’s privilege, that unsupported claims of paralegal agency did not establish attorney-client privilege, and that continued refusal to comply with a clear discovery order justified civil contempt.


Von Bülow by Auersperg v. Von Bülow, 811 F.2d 136 (2d Cir. 1987)