As part of the bankruptcy case, city attorneys last week issued a subpoena to the Bond Buyer, seeking documents related to an award the trade publication gave former Detroit Mayor Kwame Kilpatrick for the deal to fund pensions that is now one of the most contentious issues in the bankruptcy case.
WDET Bankruptcy Reporter and NextChapterDetrot.com Blogger Sandra Svoboda spoke with Herschel Fink, legal counsel for the Detroit Free Press about the subpoena, protections that exist for publications, and what options Bankruptcy Judge Steven Rhodes has now that it’s filed.
Here’s the transcription of the full interview:
Sandra Svoboda: When subpoenas are issued to media organizations for their records, what are lawyers normally looking for?
Herschel Fink: Normally lawyers are trying to do two things. They either want to appropriate the status of the news organization to help them and more likely, of course, they are looking for relevant information that somehow helps their case.
SS: So in this case we have the city issuing the subpoena to the trade publication the BB, they’re looking for records related to an award that the Bond Buyer publication gave to Kwame Kilpatrick related to the deal that they did to fund the pension funds, to fund pension debt in what we call the Certificates of Participation> this of course has become highly controversial in the bankruptcy case. Can you speculate at all what they might be looking for?
HF: Frankly, from what I understand about the case, I don’t have a clue because it would seem so far off point to try to introduce information about why a publication, which is not a party to the bankruptcy case, not involved in the controversy, to try to get information about why that publication gave an honor to the city of Detroit or the Kilpatrick administration, just seems totally irrelevant to the dispute. I can’t imagine what they are trying to find or what point they are trying to make. It certainly isn’t apparent.
SS: In other cases, you’ve been involved with or are familiar with, what legal strategy are lawyers using when they go after the records of media organizations?
HF: Often they want information, they want a reporter or someone who a fact finder, a judge, a jury will find credible and who they think they may be able to make the point that an independent third party thinks such and such. So sometimes they’re just trying to borrow the credibility of the publication but the real purpose of the subpoena is to gather relevant information about a key matter in the dispute at hand and there doesn’t appear to be any in this case at all that the award by, the decision to make an award by a publication just would totally seem to be irrelevant, very atypical. I can’t see what they’re trying to do and I would expect the judge to probably dismiss it out of hand but that’s my thought.
SS: Here in the Eastern District of Michigan, what precedent is there in federal courts for what we do call of course, the shield law that protects journalists from having to give up their sources or information. What would the judge be relying on in making his decision here?
HF: The majority of states have either statutes of cases that have recognizes that reporters and news organizations have a privilege against having to disclose unpublished information or confidential information. But that isn’t true in the federal courts. The federal courts don’t have a statute, a shield law as we call it, that guides them. But many federal courts have fashioned a privilege without there being a statute. In Michigan in the courts of what we call the Sixth Circuit, which Michigan is part of, the federal Sixth Circuit, the Michigan trial courts have gone different, in different directions on this issues Some judges have recognized that there is such a privilege in civil cases and the one or two federal judges, district judges that said no there’s no privilege under the First Amendment even in a civil case. So if the issue is presented to Judge Rhodes, I think his first inquiry is just simply relevance. If the matter is not relevant to the central dispute before the judge, he should quash or dismiss the subpoenas without even getting to a First Amendment issues. If somehow they can convince him and I really doubt it that the information is relevant and important, ten he’s going to have to decide which of the federal district judges’ opinions on this issue he’s going to follow. But I don’t even see how he would get to that issue because it just appears totally off base, totally irrelevant. Why a publication gives someone an honor doesn’t have anything to do with the bankruptcy dispute or anything I can see.
SS: So finally what should we be looking for as the next step in this particular legal issue in the bankruptcy?
HF: I would expect the attorneys for the Bond Buyer, if they’re experienced in media law, I assume they would find a lawyer who defends news organizations on issues like this.
SS: There should be some in New York where they’re based.
HF: There are many fine federal, many fine media lawyers in New York, but you’ve just introduced another issue here. Because the subpoena, if they’re based in New York, it may actually be a New York judge, a federal judge in NY, who will have to decide whether to force the Bond Buyer to testify. There’s a federal law, excuse me, rule, that deals with that and it’s usually a judge in the federal district court in the place where the news organization or any witness is located. Now in New York that’s what we call the Second Federal Appellate Circuit and in fact judges of the Second Circuit have recognized that news organizations have a privilege so even that judge if it doesn’t go to Judge Rhodes, even the judge, certainly the judge in New York, it would have to be a federal judge in New York would probably apply the privilege that judges or the Second Circuit U.S. Court of Appeals have laid down which is there is a privilege against disclosure but again, all of those cases deal first off with relevance, and again I think that’s going to be the deciding issue. The judge, whether it’s Judge Rhodes or a judge in New York, is going to say this information is simply irrelevant and the news organization is not going to have to produce anything.