Dobrovolskaya v. Monarch Air Group, LLC.

Filing 19

OPINION AND ORDER re: 1 MISCELLANEOUS CASE INITIATING DOCUMENT - MOTION to Quash Subpoena . Other Court Name: United States District Court - Southern District of Florida. Other Court Case Number: 23-cv-61256-JB. (Filing Fee $ 52 .00, Receipt Number ANYSDC-30475 filed by Lily Dobrovolskaya.For the foregoing reasons, the Court GRANTS the motion to quash in its entirety. The Clerk of Court is respectfully directed to terminate the motion at Dkt. 1 and close the case. SO ORDERED. (Signed by Judge Jennifer L. Rochon on 3/7/2025) (jca)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
LILY DOBROVOLSKAYA,
Movant,

Case No. 1:25-mc-00032 (JLR)

-against-

OPINION AND ORDER

MONARCH AIR GROUP, LLC,
Respondent.
JENNIFER L. ROCHON, United States District Judge:
On January 16, 2025, Lily Dobrovolskaya (“Movant” or “Dobrovolskaya”) initiated
this miscellaneous action, seeking an order quashing a nonparty subpoena served on her by
Respondent Monarch Air Group, LLC (“Respondent” or “Monarch”), in connection with a
defamation lawsuit currently pending in the United States District Court for the Southern
District of Florida, Monarch Air Group, LLC v. Journalism Development Network, Inc., No.
23-cv-61256 (S.D. Fla. filed June 30, 2023) (the “Florida Litigation”). See Dkt. 1. For the
following reasons, the Court GRANTS the motion to quash.
BACKGROUND
Dobrovolskaya is a professional investigative journalist and the author of an allegedly
defamatory article about Monarch (the “Article”). Dkt. 6 (“Dobrovolskaya Decl.”) ¶¶ 3, 5;
see Dkt. 5-2 (“Fla. Compl.”) ¶ 1. The Article was based on Dobrovolskaya’s newsgathering
efforts, including communications with two former pilots at Monarch on condition of
anonymity, and discussions with Patrick Simpson (“Simpson”), a blogger who had previously
written about Monarch. Dobrovolskaya Decl. ¶¶ 7-8. On November 27, 2020, the Organized
Crime and Corrupt Report Project, an organization owned and controlled by Journalism
Development Network, Inc. (“JDN”), published the Article online. Fla. Compl. ¶¶ 1, 22, 24.

Prior to the Article’s publication by JDN, Dobrovolskaya also “corresponded with reporters
and editors at The Miami Herald regarding a potential collaboration.” Dobrovolskaya Decl.
¶ 8. The Article was not published in the Miami Herald.
On June 30, 2023, Monarch filed the Florida Lawsuit, asserting defamation per se and
defamation by implication claims against JDN and Dobrovolskaya, as well as a defamation
per se claim against Dobrovolskaya arising out of a Twitter post on November 28, 2020,
about a division of Monarch known as Mercury Jets (the “Mercury Jets Tweet”). Fla Compl.
¶¶ 53-68. All claims against Dobrovolskaya have since been dismissed due to Monarch’s
failure to provide Dobrovolskaya with pre-suit notice as required by Florida law, as well as
related pleading deficiencies. Dkt. 5-3 at 10; Dkt. 5-4 at 2.
The subpoena Dobrovolskaya seeks to quash was issued by the United States District
Court for the Southern District of Florida on December 18, 2024. Dkt. 5-1 at 1. Monarch
served Dobrovolskaya with the subpoena on December 27, 2024. Dobrovolskaya Decl. ¶ 2.
The parties subsequently agreed “to significantly narrow the scope of the documents and
materials sought.” Dkt. 5 (“McElroy Decl.”) ¶ 3. The parties have now reached an impasse
on the following categories and documents sought by Monarch: “(a) recordings of interviews
with two confidential sources quoted in the article at issue in the Florida Litigation”; “(b) prepublication communications about the article at issue with The Miami Herald”;
“(c) communications with blogger Patrick Simpson”; and “(d) documents concerning the basis
for the ‘tweet’ that Ms. Dobrovolskaya posted on November 28, 2020, concerning
[Monarch’s] ‘Mercury Jets Division’ and its relationship to [Monarch].” McElroy Decl. ¶ 4.
Dobrovolskaya filed the instant motion to quash on January 16, 2025, asserting that
the materials sought are privileged under the First Amendment, New York law, and Florida

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law. Dkt 3 (“Br.”) at 1, 5-7. Monarch filed its opposition, and the motion is fully briefed.
See Dkt. 12 (“Opp.”); Dkt. 15 (“Reply”).
LEGAL STANDARD
“On timely motion, the court for the district where compliance is required must quash
or modify a subpoena that,” among other things, “requires disclosure of privileged or other
protected matter, if no exception or waiver applies.” Fed. R. Civ. P. 45(d)(3)(A), (A)(iii);
accord Silverstone Holding Grp., LLC v. Zhongtie Dacheng (Zuhai) Inv. Mgmt. Co., 650 F.
Supp. 3d 199, 203 (S.D.N.Y. 2023). “[T]he burden of persuasion in a motion to quash a
subpoena . . . is borne by the movant.” Marshall Project, Inc. v. City of Cleveland, No. 24mc-00309 (VEC), 2024 WL 4589667, at *2 (S.D.N.Y. Oct. 28, 2024) (alteration and omission
in original) (quoting Concord Boat Corp. v. Brunswick Corp., 169 F.R.D. 44, 48 (S.D.N.Y.
1996)). “[M]otions to quash a subpoena are . . . ‘entrusted to the sound discretion of the
district court.’” In re Fitch, Inc., 330 F.3d 104, 108 (2d Cir. 2003) (quoting United States v.
Sanders, 211 F.3d 711, 720 (2d Cir. 2000)).
DISCUSSION
Dobrovolskaya seeks to quash the subpoena, asserting the journalist’s privilege. Br. at
4-5. The parties do not dispute that Dobrovolskaya is entitled to assert the privilege, but
instead disagree about whether the privilege can be overcome. Dobrovolskaya argues that the
confidential-source recordings are covered by the New York Shield Law’s absolute privilege
against disclosure of information received in confidence, and that the New York Shield Law’s
qualified privilege for nonconfidential unpublished newsgathering material protects the other
three categories of documents and materials sought. Id. at 5-6. The Court will discuss the
confidential-source recordings before turning to the remaining requests.

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I.

Recordings of Confidential Sources
Monarch seeks recordings of interviews with two confidential sources quoted in the

Article. McElroy Decl. ¶ 4; see Dkt. 5-1 at 7-8. Dobrovolskaya argues that the subpoena
should be quashed as to these recordings because they are absolutely privileged under New
York law. See Br. at 8. Monarch contends that Florida law, not New York law, applies, but
that in any event that it can overcome the privilege under either state’s law. See Opp. at 4-13.
Since the parties disagree about the applicable state law, the Court starts with a choice-of-law
analysis before determining whether the confidential-source recordings are protected against
disclosure.
A. Choice of Law
“A federal court, sitting in diversity, must look to the choice-of-law rules of the state
in which it sits . . . to resolve conflict-of-law questions.” AroChem Int’l, Inc. v. Buckle, 968
F.2d 266, 269-70 (2d Cir. 1992) (citing Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487,
496 (1941)). Under New York choice-of-law rules, “‘the first step in any choice of law
inquiry is to determine whether there is an “actual conflict”’ between the rules of the relevant
jurisdictions.” Kinsey v. N.Y. Times Co., 991 F.3d 171, 176 (2d Cir. 2021) (quoting Booking
v. Gen. Star Mgmt. Co., 254 F.3d 414, 419-20 (2d Cir. 2001)). The New York Shield Law,
N.Y. Civ. Rights Law § 79-h, provides reporters with an “absolute privilege against the
compelled disclosure of ‘news obtained or received in confidence or the identity of the source
of such news.’” Giuffre v. Maxwell, 221 F. Supp. 3d 472, 476 (S.D.N.Y. 2016) (quoting N.Y.
Civ. Rights Law § 79-h(b)). By contrast, Florida provides only a qualified privilege for
journalists against the disclosure of confidential newsgathering material. See Fla. Stat.
§ 90.5015(2) (2024); Monarch Air Grp., LLC v. Journalism Dev. Network, Inc., --- F. Supp.
3d ---, 2024 WL 4826040, at *2 (S.D. Fla. Nov. 19, 2024) (Monarch I) (“Florida’s qualified
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statutory privilege ‘applies to both confidential and non-confidential sources, and in both
criminal and civil cases.’” (quoting Muhammad v. State, 132 So. 3d 176, 190 (Fla. 2013))).
Accordingly, the Court finds that a conflict exists. Cf. Kinsey, 991 F.3d at 176 (holding that
an actual conflict existed where New York fair-report privilege provided an absolute
privilege, while the District of Columbia’s was qualified).
The Court thus turns to the second step of the choice-of-law inquiry, “apply[ing] New
York choice-of-law rules to decide which jurisdiction’s substantive law controls.” Kinsey,
991 F.3d at 176. “‘In tort cases, New York applies the law of the state with the most
significant interest in the litigation,’ considering whether a rule is ‘conduct-regulating’ or
‘loss-allocating.’” Press v. Primavera, 685 F. Supp. 3d 216, 226 (S.D.N.Y. 2023) (quoting
Kinsey, 991 F.3d at 176). Because privilege rules are considered “conduct-regulating,” New
York applies the law of the “locus” of the conduct at issue, “because of [the locus
jurisdiction’s] interest in affecting the conduct of those who act within the jurisdiction and of
a reliance interest on the part of the actors whose conduct is at issue.” AroChem, 968 F.2d at
270; accord Breaking Media, Inc. v. Jowers, No. 21-mc-00194 (KPF), 2021 WL 1299108, at
*3 n.2 (S.D.N.Y. Apr. 7, 2021).
The Court concludes that New York law applies. Here, the matters sought to be
discovered stem from conduct based in New York. Dobrovolskaya is a New York
domiciliary, carried out her newsgathering, research, writing, and editing activities in New
York, and New York has expressed a strong interest in protecting the activities of its
domiciliary journalists through application of its privilege law. See Dobrovolskaya Decl.
¶¶ 1, 6; Breaking Media, 2021 WL 1299108, at *3 n.2 (applying New York law where a
publisher, the subpoena recipient, was headquartered in New York, primarily carried out its
publishing activities in New York, and New York had expressed a strong interest in protecting
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the activities of domiciliary news publishers); Stephens v. Am. Home Assurance Co., No. 91cv-02898 (JSM) (KAR), 1995 WL 230333, at *6-7 (S.D.N.Y. Apr. 17, 1995) (similar).
Monarch’s arguments that Florida law should apply are unpersuasive. Monarch relies
on cases that considered conflict-of-law questions regarding defamation claims, not the choice
of law to apply to a journalist’s privilege claim. See Kesner v. Dow Jones & Co., 515 F.
Supp. 3d 149, 167 (S.D.N.Y. 2021) (considering “which state’s substantive law applie[d] to
[plaintiff]’s defamation claims”); Cummins v. Suntrust Cap. Mkts., Inc., 649 F. Supp. 2d 224,
236-38 (S.D.N.Y. 2009) (same), aff’d, 416 F. App’x 101 (2d Cir. 2011) (summary order); La
Luna Enters., Inc. v. CBS Corp., 74 F. Supp. 2d 384, 388 (S.D.N.Y. 1999) (same). Monarch’s
argument that Florida law should apply because certain conduct happened in Florida —
namely, the allegedly defamatory statements directed at a Florida company, with harm felt in
Florida — misses the mark. That conduct would be relevant to determining the law to be
applied to the underlying defamation claim. See, e.g., Kesner, 515 F. Supp. 3d at 168-69. But
to determine what law to apply to a motion to quash based on a journalistic privilege, the
Court considers where the privileged conduct occurred — here, Dobrovolskaya’s interviews
with confidential sources, research, writing, and reporting. The locus of this conduct is New
York. See Dobrovolskaya Decl. ¶ 6 (averring that Dobrovolskaya “conducted all [her]
research, interviews, and newsgathering for the Article . . . while located in New York”).
As a result, the Court finds that New York law applies to Dobrovolskaya’s assertion of
privilege as to the confidential-source recordings.
B. Analysis
In the course of Dobrovolskaya’s research for the Article, she spoke with two former
Monarch pilots on condition of anonymity, and “[a]ll communications with [them] were
confidential and undertaken with the expectation that [she] would not disclose their
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identities.” Dobrovolskaya Decl. ¶ 7. Dobrovolskaya contends that the recordings of those
interviews are absolutely privileged under New York law. The Court agrees.
New York law “provides an absolute privilege against the compelled disclosure of
‘news obtained or received in confidence or the identity of the source of such news,’” and
“bars compelled disclosure of ‘news or its source obtained in confidence.’” Giuffre, 221 F.
Supp. 3d at 476 (first quoting N.Y. Civ. Rights Law § 79-h(b); and then quoting Baines v.
Daily News L.P., 26 N.Y.S.3d 658, 662 (Sup. Ct. 2015)). Since Dobrovolskaya’s interviews
with the pilots took place on condition of anonymity and she obtained information from them
in confidence, those communications are “absolutely privileged from disclosure.” Id.; see
also, e.g., Flynn v. NYP Holdings Inc., 652 N.Y.S.2d 833, 835 (App. Div. 1997) (“[I]f the
requested documents were deemed confidential, defendants would be afforded unqualified
protection from having to divulge such sources or materials.”).
Monarch’s argument that the absolute privilege can be overcome under New York law
is unpersuasive. See Opp. at 6-8. In so arguing, Monarch relies on Sharon v. Time, Inc., 599
F. Supp. 538 (S.D.N.Y. 1984). See Opp. at 7. Monarch again confuses potential liability for
defamation with whether a journalist can be compelled to disclose confidential sources and
information. While rejecting that a magazine was absolutely immune from a defamation suit,
599 F. Supp. at 553-56, in Sharon, the court held that the New York Shield Law permitted
press defendants to “keep [their] sources confidential” and prohibited the plaintiff from
relying on the journalist’s “refusal to reveal his sources to find actual malice,” id. at 582-83.
Although the Sharon court held that a reporter may be asked some general questions about
whether he had a source and the reliability of the information obtained, id. at 583, Sharon
does not support compelling Dobrovolskaya to produce the recordings of her conversations
with confidential sources, and the Court will not do so.
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The Court would reach the same conclusion even if it applied Florida law. Florida law
provides a qualified privilege for confidential newsgathering material, which a party can
overcome by making a “clear and specific showing” that (1) the information is “relevant and
material to the unresolved issues in the proceeding for which the information is sought,”
(2) “cannot be obtained from alternative sources,” and (3) there is a “compelling
interest . . . for requiring disclosure of the information.” Cable News Network, Inc. v. Black,
308 So. 3d 997, 999 (Fla. Dist. Ct. App. 2020).
Monarch has not made such a showing. In particular, Monarch has not shown that the
information contained in the recordings cannot be obtained from alternative sources.
“Importantly, ‘[i]t is not whether the form of the evidence itself is unavailable but, rather,
whether the information revealed by the evidence is otherwise unavailable.’” Monarch I,
2024 WL 4826040, at *3 (alteration in original) (quoting United States v. Thompson, No. 14cr-20522, 2015 WL 1608462, at *3 (S.D. Fla. Apr. 10, 2015)). Monarch asserts that it can
only obtain the information in the recordings from Dobrovolskaya because the recordings are
exclusively within her possession, it has exhausted avenues for obtaining the information
through JDN, and no other third-party source can provide the information. Opp. at 11. The
Court is not persuaded. Monarch could obtain the information in the recordings — that is,
what the former pilot confidential sources told Dobrovolskaya — by taking steps to interview
its former pilots or employees who may have provided the information to Dobrovolskaya.
The information provided by one of the confidential sources concerned Monarch employees
resigning because they were not being paid. Dkt. 5-5 at 9. Information about whether and
why former Monarch employees resigned could be obtained from the former employees (none
of whom have been deposed) or material within Monarch’s own possession. The second
confidential source provided information about cocaine being discovered on a Monarch
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aircraft in 2011, id. at 3, but Monarch has not sought to depose or gather information from any
crew member, pilot, or passengers related to that incident. The Court further rejects
Monarch’s argument that it requires the recordings themselves to capture “tone, context, and
meaning,” Opp. at 11, given Monarch’s representation elsewhere that it would be satisfied
with transcriptions of the recordings, see id., which would not capture such nuances.
The Southern District of Florida’s recent resolution of another discovery dispute in
this case is instructive. See generally Monarch Air Grp., LLC v. Journalism Dev. Network,
Inc., No. 23-cv-61256, 2025 WL 445491 (S.D. Fla. Feb. 10, 2025) (Monarch II). There,
Monarch sought to overcome the journalist’s privilege to obtain “communications with a
confidential source and excerpts of audio recordings.” Id. at *5. The court rejected
Monarch’s request, reasoning that the information sought was “not the . . . type[] of internal
communications and other material[] . . . that contain[s] information [Monarch] can only
obtain from [JDN],” and Monarch had not “attempted to depose [its] former employees who
may have provided the information at issue.” Id. So too here. Even if, as Monarch contends,
the information contained in the recordings is “relevant and material” and there is a
“compelling interest” in disclosure, Monarch’s failure to demonstrate that the information
cannot be obtained from alternative sources is dispositive. See id.; Green v. Off. of the
Sherriff’s Off., No. 99-cv-00658, 2002 WL 32128623, at *2 (M.D. Fla. Nov. 4, 2002)
(granting motion to quash where plaintiff failed to establish one of the three elements, since
“each of the . . . three elements must be shown” to overcome the privilege). As a result,
Monarch cannot overcome the journalist’s qualified privilege under Florida law.
Because the confidential-source recordings are absolutely privileged under New York
law and Monarch could not overcome the qualified privilege even if the Court applied Florida
law, the Court will grant the motion to quash as to the recordings.
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II.

Nonconfidential Newsgathering Documents and Materials
Dobrovolskaya next seeks to quash the subpoena as to (1) her pre-publication

communications about the Article with the Miami Herald, (2) her communications with
Simpson, and (3) documents relating to the Mercury Jets Tweet. Br. at 11-18. She asserts
that the materials are privileged under either New York or Florida’s qualified privilege for
nonconfidential newsgathering material, and that the same analysis applies regardless of
which state’s law applies. See id. at 4-7. Monarch argues that Florida law applies, but
acknowledges that New York law is “effectively equivalent.” Opp. at 13; see id. at 4-5, 1213. Since the tests to overcome the qualified privilege are nearly identical, the Court need not
engage in a choice-of-law analysis. For the reasons that follow, the Court will grant the
motion to quash as to the remaining categories of documents and materials.
A. Legal Standard
The New York Shield Law provides journalists with a qualified privilege as to news
that is “both unpublished and not obtained under a promise of confidentiality.” Baker v.
Goldman Sachs & Co., 669 F.3d 105, 107 (2d Cir. 2012) (citing N.Y. Civ. Rights Law § 79h). Florida law provides a similar qualified privilege for “information . . . obtained while
actively gathering news.” Fla. Stat. § 90.5015(2); accord Monarch I, 2024 WL 4826040, at
*2; see also Gregory v. Miami-Dade County, No. 13-cv-21350, 2015 WL 3442008, at *3
(S.D. Fla. May 28, 2015) (explaining that the qualified privilege “applies whether the
professional news gathering efforts and results are published or not” (citing McCarty v.
Bankers Ins. Co., 195 F.R.D. 39, 44 (N.D. Fla. 1998))).
To overcome the qualified privilege under New York Law, a party must make “a clear
and specific showing” that the material: “(i) is highly material and relevant; (ii) is critical or
necessary to the maintenance of a party’s claim, defense or proof of an issue material thereto;
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and (iii) is not obtainable from any alternative source.” Baker, 669 F.3d at 108 (quoting N.Y.
Civ. Rights Law § 79-h(c)). Florida law requires a nearly identical showing. See Muhammad,
132 So. 3d at 189-90 (party seeking to overcome privilege must, by a clear and specific
showing, “demonstrate that the journalist’s information is relevant, that the information
cannot be reasonably obtained from alternative sources, and that a compelling interest exists
requiring disclosure”).
B. Communications with the Miami Herald
Monarch seeks “[d]ocuments and communications between [Dobrovolskaya] and the
Miami Herald regarding the subjects of the Article and any documents showing why the
Miami Herald turned down the publication of the Article.” Dkt. 5-1 at 7. Dobrovolskaya
argues that this subpoena request should be quashed because the documents and
communications are privileged under New York and Florida law, and because Monarch
cannot make the showing necessary to overcome that qualified privilege. Br. at 11-14; see
also Reply at 8-9. The Court agrees with Dobrovolskaya.
First, Monarch has not shown that the communications between Dobrovolskaya and
the Miami Herald are “highly material and relevant” to the defamation claims in the Florida
Litigation. Monarch contends that the communications are material and relevant because they
“directly relate[] to a core issue in a lawsuit,” namely, JDN’s state of mind at publication of
the Article, since they could show that “Herald editors raised concerns about the Article’s
credibility or declined to publish it due to doubts about its veracity.” Opp at 14. But
Monarch’s argument is based on pure speculation and does not meet the required heightened
standard for overcoming the privilege.
The Southern District of Florida’s decision in another discovery dispute in the Florida
Litigation is instructive. See generally Monarch I, 2024 WL 4826040. In Monarch I,
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Monarch sought the same communications from the McClatchy Company, a nonparty to the
Florida Litigation and the publisher of the Miami Herald, that it seeks from Dobrovolskaya
now. See 2024 WL 4826040, at *1. The court found that Monarch had not made the
necessary showing to overcome the qualified privilege under Florida law, in part because it
had not shown that the information sought was highly relevant. See id. at *2. Specifically,
the court found that Monarch did not have any nonhearsay basis for its assertion that the
Miami Herald ultimately declined to publish the Article, and that Monarch failed to explain
the basis for its “‘justifiable belief’ that The Miami Herald declined to publish the article
because it contained falsities” with anything other than speculation. Id. Here too, Monarch
relies on that same conjecture. Not only is Monarch speculating about the reason the Miami
Herald might have declined to publish (if it did so at all), but such information would not
speak to whether JDN, the only defendant in the present case, knew anything about those
reasons. Such “speculation does not cut it, particularly when [Monarch] bears a ‘heavy
burden’ of satisfying this element by ‘clear and convincing evidence.’” Monarch I, 2024 WL
4826040, at *2; see also In re App. of Home Box Off., Inc., 103 N.Y.S.3d 794, 799 (Sup. Ct.
2019) (outtake footage protected by New York Shield Law was not highly relevant, in part
because Monarch was “not able to definitively state what [was] contained in the outtake
footage” and therefore could not “factually assert that the footage [was] highly material and
relevant to her defense”). The Court does not find persuasive Monarch’s claim that its request
is not based on speculation because Dobrovolskaya admitted that there are communications
between her and the Miami Herald regarding a “potential collaboration.” Opp. at 14 (quoting
Dobrovolskaya Decl. ¶ 8); see id. at 13-14. The issue in Monarch I was not whether such
communications existed, but what the communications might reveal and whether Monarch
had demonstrated their relevance by clear and convincing evidence. See 2024 WL 4826040,
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at *2. As in Monarch I, Monarch’s arguments that the information would be relevant to its
defamation claims are based entirely on speculation about what the communications contain
and what JDN knew about them. 1
Monarch also has not shown that the Miami Herald communications are “critical or
necessary” to the maintenance of its claim or that it has a “compelling interest” in disclosure.
To determine that newsgathering material is “critical or necessary . . . there must be a finding
that the claim for which the information is to be used virtually rises or falls” with the soughtafter information. Baker, 669 F.3d at 108 (quoting In re App. to Quash Subpoena to Nat’l
Broad. Co., 79 F.3d 346, 351 (2d Cir. 1996)) (discussing New York Shield Law); see also
McCarty, 195 F.R.D. at 47 (to overcome journalist’s privilege under Florida law, party must
show that they “cannot otherwise establish [their] entitlement to relief on [their] asserted
claim” without the information). “The test is not merely that the material be helpful or
probative, but whether or not . . . the action may be presented without it.” Baker, 669 F.3d at
108 (omission in original) (quoting In re Am. Broad. Cos., 735 N.Y.S.2d 919, 922 (Sup. Ct.
2001)). As discussed, Monarch has not established that the Miami Herald communications

1

Monarch’s reliance on Gregory, Black, and McCarty is unpersuasive. See Opp. at 14-15. In
Gregory, the court found that the “nature and significance of the testimony sought by the
[d]efendant from the reporter [was] not speculative, but [was] specific and highly relevant to
the [d]efendant’s claims” because the defendant had adduced “substantial information” about
what the reporter’s testimony was expected to show. 2015 WL 3442008, at *5. Similarly, in
Black, the party seeking disclosure showed that there were communications between CNN
and a confidential source about the subjects of the allegedly defamatory statements that would
show what CNN knew at the time of publication. 308 So. 3d at 1001. Here, however,
Monarch provides only conjecture about what the Miami Herald communications might
contain, and it is even further attenuated from what JDN may have known at publication.
Thus, this information bears only a tenuous connection to the core claims in the Florida
Litigation. Finally, McCarty undermines Monarch’s claims that disclosure is warranted
whenever information relates to a “core” issue in the underlying suit, since that court
ultimately granted the motion to quash because respondent did not show there was a
compelling interest requiring disclosure and that the information could not be obtained from
other sources. 195 F.R.D. at 47.
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are highly relevant to its claim, let alone that its claim cannot be sustained without those
communications. In fact, Monarch makes almost no effort to make this showing, except for
stating in passing that the documents are “highly relevant, if not critical” to the claims and
affirmative defenses in the Florida Litigation. Opp. at 13. Such bald assertions are not
enough. See In re Home Box Off., 103 N.Y.S.3d at 800 (party seeking privileged information
could not overcome the privilege where it could not “argue that any information contained in
[the communications was] critical and necessary when [it] d[id] not know what the
[communications] actually [contained]”); Seo v. Kim, No. 02-01217, 2002 WL 31445224, at
*4 (Fla. Cir. Ct. Apr. 9, 2002) (party did not make clear and convincing showing of
compelling interest where it could only speculate that the sought-after “videotaped
interview . . . may be useful in proving . . . inconsistencies”).
Because Monarch has not overcome the qualified privilege under New York or Florida
law by clear and convincing evidence, the Court grants the motion to quash the subpoena as to
the communications with the Miami Herald.
C. Communications with Simpson
Monarch next seeks “[a]ll communications and documents exchanged between
[Dobrovolskaya] and Patrick Simpson, including but not limited to communications with
Patrick Simpson regarding providing a credit to him in the Article.” Dkt. 5-1 at 8.
Dobrovolskaya attests that she corresponded with Simpson “regarding some research related
to Monarch” and that the correspondence was all “related to the research and newsgathering
that [she] performed during [her] preparation of the Article.” Dobrovolskaya Decl. ¶ 8.
Dobrovolskaya argues that the subpoena should be quashed as to these communications
because Monarch cannot satisfy any element required to overcome the qualified privilege.

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See Br. at 14-16. The Court agrees that the subpoena should be quashed as to these
communications.
In particular, Monarch has failed to demonstrate that the information contained in the
communications and documents cannot be obtained from any other source. Under New York
law, this requires Monarch to “establish[] that [it] has turned to [Dobrovolskaya] ‘only as a
last resort.’” Giuffre, 221 F. Supp. 3d at 480 (quoting In re Grand Jury Subpoenas Served on
Nat’l Broad. Co., 683 N.Y.S.2d 708, 711 (Sup. Ct. 1998)). Under Florida law, Monarch must
similarly “make a clear and specific showing that the information cannot be obtained from
alternative sources.” Gubarev v. BuzzFeed, Inc., No. 17-cv-60426, 2017 WL 6547898, at *4
(S.D. Fla. Dec. 21, 2017). Monarch argues that it has taken reasonable steps to obtain the
information directly from Simpson by subpoenaing him. Opp. at 16. Simpson produced some
documents, but informed Monarch that “he did not have some emails and documents within
his possession anymore.” Id. Monarch contends that Dobrovolskaya “is the only individual
with access to this missing information.” Id. But “[i]t is not whether the form of the evidence
itself is unavailable but, rather, whether the information revealed by the evidence is otherwise
unavailable.” Monarch I, 2024 WL 4826040, at *3 (alteration in original) (citation omitted).
Monarch could take steps to obtain the information at issue by, for example, deposing
Simpson or serving him with interrogatories. See id.; Gubarev, 2017 WL 6547898, at *4
(party had not met their burden of making a clear and specific showing that information could
not be obtained through other sources where depositions of alternate sources had not yet taken
place); Giuffre, 221 F. Supp. 3d at 480 (similar). It has not done so, and therefore cannot
overcome the qualified privilege under either state’s law. 2

2

Even if the Court found the information could not be obtained from other sources, it would
still grant the motion to quash. Monarch offers only speculation as to why the
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The Court will grant the motion to quash the subpoena as to communications and
documents exchanged between Dobrovolskaya and Simpson.
D. Documents Concerning Mercury Jets Tweet
Finally, Monarch seeks “[d]ocuments supporting any investigation or analysis of
[Dobrovolskaya’s] [Twitter] post on November 28, 2020” about Mercury Jets. Dkt 5-1 at 9.
Dobrovolskaya states that the Mercury Jets Tweet “was based on the same research and
newsgathering [she] performed during [her] preparation of the Article.” Dobrovolskaya Decl.
¶ 9. She now seeks to quash the subpoena as to the documents supporting this post, arguing
that Monarch cannot overcome the privilege because the documents are not relevant to the
claims in the Florida Litigation and the documents are not critical or necessary to the
maintenance of those claims. Br. at 16-18. The Court agrees with Dobrovolskaya.
Monarch has not shown by clear and convincing evidence that the documents
supporting the Mercury Jets Tweet are highly relevant and material to the defamation claims
in the Florida Litigation. Monarch argues that the documents are relevant because they were
collected during the reporting and research for the Article, and therefore could indicate
whether Dobrovolskaya and JDN left out certain facts or mischaracterized them. Opp. at 1718. But Dobrovolskaya, not JDN, wrote and published the Mercury Jets Tweet, and did so
after the publication of the Article, making the Mercury Jets Tweet’s relevance to the
defamation claim against JDN tenuous at best. These documents might have been relevant to
the defamation claim against Dobrovolskaya based on the Mercury Jets Tweet, but that claim
has been dismissed from the litigation, along with all other claims against her. To try to get

communications would be relevant, and has not explained why its defamation claims against
JDN rise and fall based on communications between two nonparties to this litigation. See
Opp. at 15-17. This is not enough to satisfy either element by clear and convincing evidence.
See Monarch I, 2024 WL 4826040, at *2 & n.4.
16

around this, Monarch postulates that since the research underlying the Mercury Jets Tweet
was collected in the course of Dobrovolskaya’s research for the Article, she might have
“relied on the same investigative materials for both the Article and the tweet,” id. at 17, and
the information related to the Mercury Jets Tweet might then have been excluded from the
Article because “JDN and Dobrovolskaya did not believe those statements to be true,” id. at
18. Not only is Monarch hypothesizing that there is a relationship between the allegedly
defamatory statements in the Article and the research for the Mercury Jets Tweet, Monarch
does not provide any basis for its contention that JDN knew about the Mercury Jets Tweet,
that JDN declined to include the content of the Mercury Jets Tweet in the Article, or that the
reason JDN did so was because it believed the statements to be false. Monarch provides
nothing but speculation to link what Dobrovolskaya knew at the time the Mercury Jets Tweet
was published to what JDN knew when the Article was published. As with the Miami Herald
communications, Monarch “has failed to show that its contention that the information sought
is ‘highly relevant’ . . . is supported by anything other than speculation.” Monarch I, 2024
WL 4826040, at *2. This is not enough to overcome the privilege under either New York or
Florida law, particularly since Monarch does not explain how this information is necessary to
prove actual malice or any other related issue in the Florida Litigation. See Aberdeen City
Council v. Bloomberg L.P., 688 F. Supp. 3d 169, 183 (S.D.N.Y. 2023) (“[A] movant’s mere
belief that documents exist in a journalist’s files is insufficient to overcome the qualified
privilege.”); Monarch I, 2024 WL 4826040, at *2 n.4 (speculative reasons to support
contention that information sought was necessary to proper presentation of case or that
compelling interest existed requiring disclosure were insufficient to overcome privilege); see
also In re App. of Home Box. Off., 103 N.Y.S.3d at 800 (respondent did not show information

17

was “critical or necessary” where she did not show “that this footage [was] the only way she
can establish her defense of reasonable doubt”). 3
Since Monarch has failed to show that it has overcome the journalist’s privilege under
either Florida or New York law, the Court grants the motion to quash as to the documents
underlying the Mercury Jets Tweet.
CONCLUSION
For the foregoing reasons, the Court GRANTS the motion to quash in its entirety. The
Clerk of Court is respectfully directed to terminate the motion at Dkt. 1 and close the case.
Dated: March 7, 2025
New York, New York

SO ORDERED.

JENNIFER L. ROCHON
United States District Judge

3

The Court is not persuaded by Monarch’s suggestion that Dobrovolskaya must show that the
materials she relied on in her reporting are irrelevant to Monarch’s claims to be entitled to the
qualified privilege. See Opp. at 18-19. Both New York’s and Florida’s statutes are clear that
the party seeking to overcome the privilege must prove relevance, not the party asserting the
privilege. See Fla. Stat. § 90.5015(2) (“A party seeking to overcome this privilege must make
a clear and specific showing [of the three statutory elements].”); N.Y. Civ. Rights Law § 79h(c) (similar).
18