October 6, 2005

Once More Into the Breach?

Which do you want first, the good news or the bad? I try to be a glass half-full person, so let me start with the good news.

In USCFTC v. McGraw-Hill, District Judge Royce Lambert, of the District for the District of Columbia, was called upon by the Commodity Futures Trading Commission to order McGraw-Hill to comply with an administrative subpoena seeking documents and information from its Platts division. The commission sought the material as part of an investigation of an energy marketing company. McGraw-Hill objected on the grounds of reporter's privilege. The commission essentially responded that there is no privilege because Platts is not engaged in traditional news gathering.

In his October 4, 2005, memorandum opinion (you may need a Pacer account to access this--the docket number is Misc. No. 05-235) Judge Lamberth found that "Platts engages in journalistic analysis and judgment in addition to simply reporting data," and while Platts might not be involved in "what is most commonly considered traditional news gathering, the privilege applies to a broad range of news gatherers."

That's the good news.

The court then noted that the commission's investigation was neither "a criminal action nor a purely civil matter," and that such work did not reach the level of public interest afforded to a grand jury proceeding.

OK, still pretty good.

The court then stated, however, that the investigation was more akin to a criminal proceeding than to a purely civil mater.

Here we go . . .

After noting that the scope and authority of the CFTC is similar to a grand jury, the court stated that while the "strong preference for abrogation" of the privilege criminal cases does not apply here, the matter calls for a "more qualified view of the privilege than would be appropriate in a purely civil case."

Applying the requisite balancing test, the court found that Platts's information was essential to the CFTC investigation, and that there were no other "reasonably available" sources for the information. Thus, the court concluded that while Platts is entitled to claim the reporter's privilege, it is abrogated in this case by the public interest represented by the CFTC investigation, and the CFTC's showing of need and exhaustion of other sources.

No word yet on McGraw-Hill's next step.

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