A party in a divorce action who seeks to compel a journalist to turn over information or documents must meet an extraordinary burden.

So held New York County Supreme Court Justice Donna M. Mills in an August 21, 2014 decision Matter of Hamm (Zuckerman).

Petitioner, Sue Ann Hamm, and her husband, Harold Hamm, are parties to an Oklahoma divorce action. By this application, Ms. Hamm sought to enforce a subpoena issued to New-York based journalist Gregory Zuckerman of the Wall Street Journal, author of the book, The Frackers: The Outrageous Inside Story of the New Billionare Wildcatters, in which Mr. Hamm is featured. Mr. Zuckerman cross-moved to quash the subpoena and for a protective order preventing Ms. Hamm from deposing him and obtaining the materials demanded.

According to Wikipedia, in 2012 Hamm was ranked by Forbes magazine as the 30th richest person in America and 76th richest person in the world, with a net worth estimated at $11 billion, a figure increased to $17 billion in early 2014. In 2012, presidential candidate Mitt Romney named Hamm as his energy advisor, and thereafter Hamm made substantial monetary and advisory contributions to the election effort.

Here, Ms. Hamm sought documents and testimony from Zuckerman about topics in the book, arguing that Mr. Zuckerman had unique insight and knowledge concerning a pivotal issue in the divorce case of whether or not Mr. Hamm’s efforts, skills or expended funds contributed to the value of the marital estate. Ms. Hamm provided the Court with excerpts from the book which indicated that it was based on interviews with numerous witnesses, including her husband, who had personal knowledge of material facts about those contributions.

Mr. Zuckerman stated that he is a professional journalist and that the book was based on his newsgathering efforts, including interviews with confidential and nonconfidential sources. He invoked New York’s journalist’s shield to avoid testifying and divulging information relating to the publication of or newsgathering for the book.

Mr. Zuckerman also stated that providing documents would have a negative impact on his career, and that he should not be compelled to testify or provide information relating to his newsgathering activities. Zuckerman claimed that if he were required to give evidence in civil or criminal matters that have a connection to his journalism activities, he would cease being a journalist and would be forced to become a professional witness. Zuckerman maintained that his ability to obtain interviews and elicit information is dependent on his being able to provide assurances that he will not be compelled to testify in court when he researches or prepares articles. He also stated that his objectivity may be compromised if he is compelled to provide information relating to his newsgathering activities, as he may be rendered an investigator for a litigant or the government.

Justice Mills first noted that C.P.L.R. 3101(a) provides that “[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action.” The prerequisites of materiality and necessity extend to any information or items bearing on the controversy which will be an aid to trial preparation, sharpening of the issues, or reducing delay. The test in such cases is usefulness and reason.

Where, however, the nonparty against whom discovery is sought is engaged in newsgathering or reporting activities, and the materials requested were prepared or developed in the course of such endeavors, additional considerations are involved.

After ruling that certain technical and procedural issues raised by Ms. Hamm did not preclude Mr. Zuckerman’s assertion of a journalist’s privilege, Justice Mills addressed the substantive issue.

The New York’s journalist’s shield, derived from NY Constitution, article I, § 8 and Civil Rights Law §79-h. Civil Rights Law §79-h (b) affords an absolute privilege for confidential newsgathering materials. Civil Rights Law §79-h (c) provides a qualified privilege for nonconfidential newsgathering information and materials, which are protected from disclosure unless a party shows, clearly and specifically, that the information and materials are:

  1. highly material;
  2. critical to the litigant’s claim; and
  3. not otherwise available.

To demonstrate that unpublished newsgathering materials are critical to a litigant’s claim, a petitioner must demonstrate “that the claim for which the information is to be used virtually rises or falls with the admission or exclusion of the proffered evidence.” If the material sought is pertinent merely to an ancillary issue in the litigation, that is, it is not essential to the very maintenance of the litigant’s claim, or is obtainable through an alternative source, disclosure may not be compelled.

In the subpoena, Ms. Hamm sought Mr. Zuckerman’s notes, interviews and other materials relating to the book. Despite her contention that the subpoena sought published information, she provided the Court with no support for the contention that the notes, documents, or videotaped interviews relating to the book were published in the book.

Ms. Hamm also did not sufficiently demonstrate that her claim concerning the marital estate in the divorce proceeding will “rise or fall” depending on whether or not she obtains the information sought from Zuckerman. Indeed, it appeared to the Court that Ms. Hamm primarily sought the information to address witness credibility and impeachment. Generally, that is not considered critical to a claim.

Ms. Hamm did make what might have been valid claims as to Zuckerman’s exclusive possession of certain documents: for example, copies of emails between Zuckerman and employees at Mr. Hamm’s corporation. However, even if the corporation did not produce copies of those emails, Ms. Hamm did not demonstrate that she could not obtain the information contained in the emails through her own investigation and interview of employees or former employees.

Justice Mills stated that undoubtedly, there were many witnesses to events and conduct involved in the development of business endeavors and wealth of the magnitude described in the submissions, such as Mr. Hamm’s business strategies, decisions and interactions.

In reply and supplemental papers, Ms. Hamm offered that the Court could limit her demand and compel Zuckerman to produce materials not used to publish news. Ms. Hamm also stated that, because Zuckerman and the corporation had extensive interactions regarding articles Zuckerman wrote for the WSJ, as well as for the book, that the Court should order production of materials that were used to create the published news. However, Ms. Hamm did not indicate that Hamm or the corporation have, or ever had, a relationship or communications with Zuckerman outside of Zuckerman’s journalism activities. Moreover, the Court was under no obligation to engage in the parsing out the permissible information that Ms. Hamm was seeking. Justice Mills declined to do so, or to grant the relief Ms. Hamm sought where she did not indicate that her inquiry would be restricted to published materials.

Justice Mills denied Ms. Hamm’s motion and granted the cross-motion of Mr. Zuckerman, precluding Ms. Hamm from deposing him, or obtaining the information sought.

According to Joel Stashenko, of the New York Law Journal, Elizabeth McNamara and Yonatan Berkovits of Davis Wright Tremaine LLP, of Manhattan, represented Mr. Zuckerman. Francis F. Quinn, of Lavin, O’Neil, Cedrone & DiSipio, represented Ms. Hamm, with Robert J. Bartz, Joe M. Fears and Taylor A. Burke of Barber & Bartz of Tulsa, Oklahoma.