Sines et al v. Yiannopoulos
Filing
29
OPINION AND ORDER: For the foregoing reasons, Movant's motion is GRANTED and Respondent is hereby ORDERED to disclose to Movants the names and locations of the two confidential sources referred to in his letter dated October 20, 2020. (See Dk t. #25). Respondent shall provide this information to Movants in writing within fourteen (14) days of the date of this Order. The Court will view a violation of this Order through the lens of its contempt powers. (Signed by Judge Katherine Polk Failla on 12/7/2020) Copies E-Mailed By Chambers. (rro)
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
ELIZABETH SINES, SETH WISPELWEY,
MARISSA BLAIR, APRIL MUÑIZ, MARCUS
MARTIN, NATALIE ROMERO, CHELSEA
ALVARADO, JOHN DOE, and THOMAS BAKER,
Movants,
20 Misc. 241 (KPF)
OPINION AND ORDER
-v.MILO YIANNOPOULOS,
Respondent.
KATHERINE POLK FAILLA, District Judge:
Movants are plaintiffs in a civil rights lawsuit currently pending in the
United States District Court for the Western District of Virginia, captioned
Sines v. Kessler, No. 17 Civ. 72 (W.D. Va.) (NKM) (the “Underlying Suit”). (Dkt.
#1). Pending before the Court is Movants’ renewed motion to compel
Respondent, Milo Yiannopoulos, to disclose the identity of two confidential
sources. For the reasons set forth below, the Court grants Movants’ motion
and orders Respondent, within fourteen (14) days of the date of this Opinion
and Order, to disclose to Movants the names and locations of his confidential
sources.
BACKGROUND 1
The Court presumes familiarity with the facts and history of this case,
which the Court previously articulated in resolving Movants’ first motion to
1
The facts recounted herein are drawn from Movants’ submissions in support of their
renewed motion to compel. For ease of reference, the Court refers to the submissions
as follows: Movants’ letter brief in support of the renewed motion to compel is referred
to as “Mov. 2d Br.” (Dkt. #26); and the exhibits attached to the Declaration of Michael L.
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compel. See Sines v. Yiannopoulos, No. 20 Misc. 241 (KPF), 2020 WL 6058279,
at *1-3 (S.D.N.Y. Oct. 14, 2020) (“Sines I”). The Court therefore provides only
information relevant to resolving the instant motion.
Movants are individuals who were allegedly injured at the so-called
“Unite the Right” rally (the “Rally”), which occurred on August 11 and 12,
2017, in Charlottesville, Virginia. (MTC 3). In the Underlying Suit, they allege
that the defendants, the principal organizers of the Rally, conspired to violate
their civil rights in violation of the Civil Rights Act of 1871, 42 U.S.C. § 1985(3).
(Id.). Before this Court, Movants seek to compel Respondent to comply with a
previously-issued subpoena by disclosing the names of his confidential
sources. These sources purportedly possess recordings of meetings where the
defendants and others planned the Rally. (Id.; see also Dkt. #25). Respondent,
proceeding pro se, objects to the subpoena on the ground that the identities of
his sources are protected by the journalist’s privilege. (See generally Resp.
Opp.).
In Sines I, the Court determined that Respondent had properly invoked
the federal journalist’s privilege, and that the privilege applied to protect the
identity of Respondent’s confidential sources. See 2020 WL 6058279, at *4-6.
However, the Court noted that “the federal journalist’s privilege is a qualified
Bloch in Further Support of Movants’ Motion to Compel are referred to as “Bloch 2d
Decl., Ex [ ]” (Dkt. #27).
The Court has also considered materials submitted by the parties in connection with
the prior motion to compel; references to those materials are made using the citing
conventions identified in Sines I. See 2020 WL 6058279, at *1 n.1.
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one and may be overcome.” Id. at *3. In determining whether the federal
journalist’s privilege should be overcome, the Second Circuit has explained
that:
to protect the important interests of reporters and the
public in preserving the confidentiality of journalists’
sources, disclosure may be ordered only upon a clear
and specific showing that the information is: [i] highly
material and relevant, [ii] necessary or critical to the
maintenance of the claim, and [iii] not obtainable from
other available sources.
Gonzales v. Nat’l Broad. Co., 194 F.3d 29, 31 (2d Cir. 1999) (quoting United
States v. Cutler, 6 F.3d 67, 71 (2d Cir. 1993)); see also In re Petroleum Prods.
Antitrust Litig., 680 F.2d 5, 7 (2d Cir. 1982). Applying this legal standard for
overcoming the privilege to the facts before the Court in Sines I, the Court
explained that Movants had demonstrated that the information sought is
“highly material and relevant,” and that it is also “necessary or critical to the
maintenance of the claim.” Sines I, 2020 WL 6058279, at *6. However, the
Court found that Movants had not demonstrated “that the identity of
Respondent's confidential source is unobtainable from other sources.” Id. at
*7.
Regarding the relationship between Movants’ discovery efforts in the
Underlying Suit and their burden of demonstrating that the recordings and/or
identities of the sources are not obtainable from other available sources, the
Court explained that:
Movants have not provided any information about
relationship between their discovery efforts in
Underlying Suit and their efforts to ascertain
identity of Respondent’s source and/or to obtain
3
the
the
the
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recordings. To the extent Movants believe they have
already exhausted all plausible alternative sources in
the normal course of discovery in the Underlying Suit,
they must provide a record that explains their efforts to
investigate this issue.
Sines I, 2020 WL 6058279, at *7 n.4. The Court then denied Movants’ motion
to compel without prejudice, “with leave to renew upon a more thorough
demonstration that Movants have exhausted potential alternative sources.” Id.
In response, Movants submitted their renewed motion to compel and
supporting papers on November 5, 2020. (Dkt. #25-26). Respondent’s
opposition was due on or before November 19, 2020, and when Respondent
failed to submit an opposition, the Court sua sponte extended his deadline to
respond to November 27, 2020. (Dkt. #28). To date, Respondent has not
submitted an opposition to the instant motion. Therefore, the Court considers
the renewed motion to compel to be unopposed, fully briefed, and ripe for
decision.
DISCUSSION
A.
Applicable Law
Once established, the federal journalist’s privilege is a qualified one and
may be overcome. However, the protection accorded by the privilege “is at its
highest when the information sought to be protected was acquired by the
journalist through a promise of confidentiality.” Chevron Corp. v. Berlinger, 629
F.3d 297, 307 (2d Cir. 2011) (internal citation omitted). To protect the
“important interest of reporters in preserving the confidentiality of [their]
sources,” the Court may override the journalist’s privilege and order disclosure
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“upon a clear and specific showing that the information is: [i] highly material
and relevant, [ii] necessary or critical to the maintenance of the claim, and
[iii] not obtainable from other available sources.” Schiller v. City of New York,
245 F.R.D. 112, 118 (S.D.N.Y. 2007) (quoting In re Petroleum Prods. Antitrust
Litig., 680 F.2d at 7).
B.
The Court Grants the Renewed Motion to Compel
As noted above — and as explained in greater detail in Sines I — the
Court has already found the information Movants seek is “highly material and
relevant,” and that it is also “necessary or critical to the maintenance of the
claim,” Sines I, 2020 WL 6058279, at *6, satisfying the first two prongs of the
test to override the journalist’s privilege. Therefore, the only question now
before the Court is whether Movants have supplemented the record sufficiently
to establish that the confidential information sought is not obtainable from
other available sources, thus satisfying the third prong of the test. See In re
Pishevar, No. 19 Misc. 503, Dkt. #99 (October 3, 2020) (“Pishevar II”) (granting
renewed application to compel disclosure of confidential source upon showing
that “petitioner has exhausted reasonable alternative sources of information,”
after previously finding that petitioner failed to adequately exhaust such
sources). As described below, the Court finds that Movants have now
adequately demonstrated that they have “exhausted reasonable alternative
sources.” Id. at 8.
In Sines I, the Court explained that to satisfy the third prong, “Movants
are required to ‘make a clear and specific showing to the Court that there are
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no other alternative sources of the identity of the [c]onfidential [s]ource.’”
Sines I, 2020 WL 6058279, at *7 (alterations in Sines I) (quoting In re Pishevar,
439 F. Supp. 3d 290, 307 (S.D.N.Y. 2020) (“Pishevar I”)). Finding that Movants
had not made the requisite “clear and specific” showing, the Court explained
that “Movants offer only vague assertions that there are no alternative sources,
without proof of any efforts that Movants have undertaken to identify
Respondent’s confidential source or to obtain the recordings purportedly in the
source’s possession.” Sines I, 2020 WL 6058279, at *7 (citing Mov. Br. 11;
Mov. Reply 6). Movants have since offered extensive proof of their efforts to
identify potential sources for the identities of the confidential sources and/or
the recordings that those sources purportedly possess. (See Mov. 2d Br. 2-4;
Bloch 2d Decl., Ex. 1-7). Indeed, Movants have now demonstrated the strong
connections “between their discovery efforts in the Underlying Suit and their
efforts to ascertain the identity of Respondent’s source and/or to obtain the
recordings.” Sines I, 2020 WL 6058279, at *7 n.4.
For example, in denying the first motion to compel, the Court explained
that:
Respondent stated that his source wanted to remain
confidential because “there were not many people in the
room when those conversations happened, and the
source was worried about retaliation.” (White Decl.
¶ 2.e). If true, Movants may be able to identify this
source by deposing and/or subpoenaing all individuals
suspected to be at one of these planning meetings.
***
Movants have not described any efforts to depose or
subpoena individuals suspected of being present at
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planning meetings for the Rally in order to ascertain the
identity of Respondent’s source or to locate the
recordings Respondent’s source allegedly possesses.
***
At a minimum, Movants have not ruled out that they
may be able to identify the source because the source
was one of a limited number of attendees of Rally
planning meetings, and is therefore presumably a name
already known to Movants.
Sines I, 2020 WL 6058279, at *7 (internal citations omitted). In response,
Movants have detailed their efforts to identify all individuals suspected of being
present at planning meetings, their efforts to depose and/or subpoena such
individuals, and the difficulties they have faced in determining who possesses
the recordings at issue here. (See Mov. 2d Br. 3-4).
Specifically, in the Underlying Suit, Movants “have deposed more than
thirty individuals (defendants and non-parties), issued nearly one hundred
subpoenas, and filed more than twenty discovery-related motions,” but have
not yet identified who possesses the recordings. (Bloch 2d Decl. ¶¶ 2, 4).
Movants have described how their discovery efforts in the Underlying Suit have
been focused on “resolv[ing] the central question to which Respondent (or his
source(s)) can apparently shed unique light: what was discussed at certain inperson planning sessions for the [Rally].” (Mov. 2d Br. 2). Thus, nearly all of
Movants’ extensive discovery efforts have sought to locate recordings of
planning meetings for the Rally, and/or determine the identities of any
individuals who may possess such recordings. Cf. Pishevar I, 439 F. Supp. 3d
at 307 (declining to override privilege where petitioner had yet to depose
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defendants in a related lawsuit, which defendants were likely alternate
sources).
Movants have explained that they have sought this information via
document requests, interrogatories, and subpoenas from all defendants in the
Underlying Suit, and have pursued this information from dozens of non-parties
by serving them with subpoenas and deposing them. (See Mov. 2d Br. 2-3). As
evidence, Movants have attached copies of these discovery requests to their
renewed motion. (See Bloch 2d Decl., Ex. 1-3). Movants have also illustrated
their extensive efforts to use depositions of suspected meeting attendees to
locate recordings and/or identify any individuals who may possess recordings,
a potential alternative source identified by the Court in Sines I. (See Mov. 2d
Br. 3-4; Bloch 2d Decl., Ex. 4-7). See also Pishevar II, 19 Misc. 503, Dkt. #99,
at 6-8 (holding that sworn statements of individuals “previously identified [by
the court] as potentially having information” sufficiently supplemented prior
evidentiary showing to merit overcoming qualified journalist’s privilege). Cf. In
re Petroleum Prods. Antitrust Litig., 680 F.2d at 8-9 (denying request to
overcome journalist’s privilege where “there [was] no indication that anyone
was asked [at deposition] the simple question [at issue].”); Persky v. Yeshiva
Univ., No. 01 Civ. 5278 (LMM), 2002 WL 31769704, at *4 (S.D.N.Y. Dec. 10,
2002) (rejecting request to reveal confidential sources where the movant had
taken only three depositions). And Movants have previously expressed to the
Court that they have faced considerable obstruction and non-compliance in
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pursuing discovery in the Underlying Suit, including a court order detaining at
least one defendant for civil contempt. (See MTC 4).
Despite significant expenditures of time and resources pursuing the
discovery described above with the goal of uncovering the same information
essentially sought here, Movants have so far been unsuccessful. The Court
has already found that that Movants have met prongs one and two of the test
to overcome the qualified journalist’s privilege, see Sines I, 2020 WL 6058279,
at *6-7, and as demonstrated above, Movants have now provided the Court
with a “‘clear and specific statement’ showing that they have pursued
alternative sources,” to satisfy the third prong, id. at *7. Therefore, the Court
finds that the qualified journalist’s privilege should be overcome in this case.
Accord Pishevar II, 19 Misc. 503, Dkt. #99.
CONCLUSION
For the foregoing reasons, Movant’s motion is GRANTED and Respondent
is hereby ORDERED to disclose to Movants the names and locations of the two
confidential sources referred to in his letter dated October 20, 2020. (See Dkt.
#25). Respondent shall provide this information to Movants in writing within
fourteen (14) days of the date of this Order. The Court will view a violation of
this Order through the lens of its contempt powers.
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SO ORDERED.
Dated: December 7, 2020
New York, New York
KATHERINE POLK FAILLA
United States District Judge
A copy of this Order was emailed by Chambers to:
Milo Yiannopoulos at: m@milo.net
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