To Be Argued By: CHRISTOPHER T.

HANDMAN (of the bar of the District of Columbia and State of Maryland) By permission of the Court. Time Requested: 15 Minutes APL-2013-00239 New York County Clerks Case No. 30037/13

Court of Appeals
STATE OF NEW YORK

In the Matter of the Application of JAMES HOLMES, Petitioner-Respondent, A Defendant in the State of Colorado for a Subpoena Directing Jana Winter to Appear as a Witness, etc., against JANA WINTER, Respondent-Appellant.

BRIEF FOR RESPONDENT-APPELLANT

DORI ANN HANSWIRTH THERESA M. HOUSE NATHANIEL S. BOYER BENJAMIN A. FLEMING HOGAN LOVELLS US LLP 875 Third Avenue New York, New York 10022 Telephone: (212) 918-3000 Facsimile: (212) 918-3100 CHRISTOPHER T. HANDMAN SEAN M. MAROTTA HOGAN LOVELLS US LLP 555 Thirteenth Street, N.W. Washington, D.C. 20004 Telephone: (202) 637-5719 Facsimile: (202) 637-5910 September 9, 2013 Attorneys for Respondent-Appellant

STATEMENT REGARDING THE STATUS OF RELATED LITIGATION At the time this brief was filed, Appellant Jana Winters motion to quash and for a protective order in the Colorado District Court remained pending. The soonest that court will likely rule on the motion will be January 3, 2014. That is because, in deference to this appeal, the Colorado District Court recently adjourned its hearing on Winters motion to that early January date. The Colorado District Court explained that [g]iven the real possibility that Winter may face indefinite jail time in this case as a remedial sanction for her refusal to disclose her confidential sources, and given further the significant First Amendment interests of Winter and the public, * * * Winter should be afforded the opportunity to exhaust all avenues to obtain appellate relief. Order Regarding Motion of Non-Party Witness Jana Winter to Vacate the September 30, 2013 Hearing Date (C-53), at 3-4, Colorado v. Holmes, No. 12CR1522 (Colo. Dist. Ct. Sept. 3, 2013).*

Available at http://www.courts.state.co.us/userfiles/file/Court_Probation/18th _Judicial_District/18th_Courts/12CR1522/004/C-53%2009%2003%2013.pdf.

TABLE OF CONTENTS Page STATEMENT REGARDING THE STATUS OF RELATED LITIGATION ..........................................................................................i TABLE OF AUTHORITIES ................................................................................... iii PRELIMINARY STATEMENT ...............................................................................1 QUESTIONS PRESENTED......................................................................................5 JURISDICTIONAL STATEMENT ..........................................................................5 NATURE OF THE CASE .........................................................................................6 ARGUMENT ...........................................................................................................19 I. THE SUBPOENA SHOULD BE QUASHED BECAUSE COMPELLING WINTER TO REVEAL HER CONFIDENTIAL SOURCES WOULD VIOLATE NEW YORKS PUBLIC POLICY. ..............................................................19 A. Another States Request Under CPL 640.10(2) May Not Be Honored If Doing So Would Violate This States Public Policy........................................................................................19 The Colorado District Courts Request For Winter To Divulge Her Confidential Sources Is Contrary To New Yorks Strong Public Policy Of Absolute Protection For Reporters Confidential Sources .........................................................27 It Is Irrelevant That Winters Article Was Reported From Colorado ..............................................................................................39

B.

C. II.

THE APPELLATE DIVISION ERRED AS A MATTER OF LAW BY HOLDING THAT THE HARDSHIP WINTER WILL FACE IF REQUIRED TO BURN HER SOURCES IS IRRELEVANT TO CPL 640.10(2)s UNDUE HARDSHIP ANALYSIS....................................................................................................46

CONCLUSION........................................................................................................53

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TABLE OF AUTHORITIES Page CASES: Banco Nacional de Mexico, S.A. v. Societe Generale, 34 A.D.3d 124 (1st Dept 2006) .........................................................................45 Barry E. (Anonymous) v. Ingraham, 43 N.Y.2d 87 (1997) ...........................................................................................25 Bourdeaux v. State, Dept of Transp., 11 N.Y.3d 321 (2008) .........................................................................................23 Colorado v. Arellano-Avila, 20 P.3d 1191 (Colo. 2001)..................................................................................20 Colorado v. Holmes, No. 12CR1522 (Colo. Dist. Ct. Sept. 3, 2013) .............................................38, 39 Colorado v. Jones, 262 P.3d 982 (Colo. App. 2011).........................................................................38 Commercial Credit Co. v. Higbee, 20 P.2d 543 (Colo. 1933)....................................................................................40 Crair v. Brookdale Hosp. Med. Ctr., 94 N.Y.2d 524 (2000) .........................................................................................26 Curtis, Mallet-Prevost, Colt & Mosle, LLP v. Garza-Morales, 308 A.D.2d 261 (1st Dept 2003) .................................................................45, 46 Debra H. v. Janice R., 14 N.Y.3d 576 (2010) .........................................................................................23 DeRose v. N.J. Transit Rail Operations, 165 A.D.2d 42 (3d Dept 1991)..........................................................................25 Ehrlich-Bober & Co. v. Univ. of Houston, 49 N.Y.2d 574 (1980) ..................................................................................passim F.A. Straus & Co. v. Canadian Pac. R. Co., 254 N.Y. 407 (1930) .....................................................................................24, 41

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TABLE OF AUTHORITIESContinued Page Farrginton v. Pinckney, 1 N.Y.2d 74 (1956) .............................................................................................24 Gagnon v. District Court, 632 P.2d 567 (Colo. 1981)..................................................................................29 In re Connecticut, 179 Misc. 2d 628 (Nassau Cnty. Ct. 1999) ........................................................26 J. Zeevi & Sons, Ltd. v. Gridlays Bank (Uganda) Ltd., 37 N.Y.2d 220 (1975) .........................................................................................22 Kilberg v. Ne. Airlines, 9 N.Y.2d 34 (1961) .................................................................................24, 42, 43 Knight-Ridder Broad., Inc. v. Greenberg, 70 N.Y.2d 151 (1987) .........................................................................................28 Matter of Beach v. Shanley, 62 N.Y.2d 241 (1984) .............................................................8, 27, 29, 34, 49, 51 Matter of Codey v. Capital Cities, Am. Broad. Corp., 183 A.D.2d 126 (1st Dept 1992) .......................................................................25 Matter of Codey v. Capital Cities, Am. Broad. Corp., 82 N.Y.2d 521 (1993) ..................................................................................passim Matter of Farber, 394 A.2d 330 (N.J. 1978) .............................................................................37, 38 Matter of Walker, 64 N.Y.2d 354 (1985) ...................................................................................31, 32 Michigan v. Marcy, 283 N.W.2d 754 (Mich. Ct. App. 1979).............................................................47 Milhoux v. Linder, 902 P.2d 856 (Colo. Ct. App. 1995) ...................................................................40

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TABLE OF AUTHORITIESContinued Page Morris v. Towers Fin. Corp., 916 P.2d 678 (Colo. Ct. App. 1996) .............................................................40, 41 Morrison v. Natl Australia Bank Ltd., 130 S. Ct. 2869 (2010)........................................................................................42 N.Y. City Transit Auth. v. Transp. Workers Union of Am., 99 N.Y.2d 1 (2002) .............................................................................................31 Nevada v. Hall, 440 U.S. 410 (1979)......................................................................................40, 41 New York v. ONeill, 359 U.S. 1 (1959)................................................................................................20 People v. Hawkins, 157 N.Y. 1 (1898) ...............................................................................................31 People v. McCartney, 38 N.Y.2d 618 (1976) ...................................................................................19, 20 Russian Socialist Federated Soviet Republic v. Cibrario, 235 N.Y. 255 (1923) .....................................................................................22, 23 Sachs v. Adeli, 26 A.D.3d 52 (1st Dept 2005) ...........................................................................25 Superior Court v. Farber, 94 Misc. 2d 886 (Sup. Ct. N.Y. Cnty. 1978) ......................................................37 Tran v. Kwok Bun Lee, 29 A.D.3d 88 (1st Dept 2006) ...........................................................................47 Watts v. Swiss Bank Corp., 27 N.Y.2d 270 (1970) ...................................................................................26, 27 STATUTES: Colo. Rev. Stat. 13-90-119(3).........................................................................29, 35

TABLE OF AUTHORITIESContinued Page Colo. Rev. Stat. 16-9-203 .....................................................................................14 CPL 640.10 ....................................................................................................passim CPL 640.10(2)................................................................................................passim CPLR 403(d) .........................................................................................................14 CPLR 5601(a) .........................................................................................................5 Dom. Rel. 114 ........................................................................................................32 Md. Code Cts. & Jud. Proc. 9-112(d)(2) ..............................................................43 N.J. Stat. Ann. 2A:84A-21....................................................................................25 N.Y. Civ. Rights Law 79-h ...................................................................................25 N.Y. Civ. Rights Law 79-h(b) ..........................................................................8, 28 RULES: Colo. R. Civ. P. 107(a)(2) ........................................................................................38 Colo. R. Civ. P. 107(b).............................................................................................38 Colo. R. Civ. P. 107(d)(2)........................................................................................39 CONSTITUTIONAL PROVISIONS: U.S. Const. amend. I .........................................................................................passim U.S. Const. amend. VI .............................................................................................20 LEGISLATIVE MATERIALS: Approval Memorandum of Governor Cuomo, 1990 N.Y. Legis. Ann. 2693...............................................................................28 Approval Memorandum of Governor Nelson A. Rockefeller, 1970 N.Y. Legis. Ann. 508.............................................................................9, 28 vi

TABLE OF AUTHORITIESContinued Page OTHER AUTHORITIES: Award Winners and Finalists Presented in 2008, Deadline Club (May 13, 2008) .......................................................................9, 10 Contact Us, The New York Times Company ............................................................7 Contact, The New York Post .....................................................................................7 David Corcoran, Theodore Trautwein, Judge in Landmark Press Case, Dies at 80, N.Y. Times, Sept. 2, 2000 ................................................................38 Robert W. Jones, The Law of Journalism (Washington Law Book Co. 1940).......................................................................7 Laura Kusisto, HuffPo Bloggers Will Soon Shop More at Trader Joes, The New York Observer, Jan. 18, 2011 ...............................................................7 McKinneys Consol. Laws of N.Y. Ann., 80 CPL 620 to 709-Commentaries by Presier (book 11A, 2009)......................26 Restatement (Second) of Conflict of Laws (1971) ...................................................33 Steven Strauss et al., Media.NYC.2020 Final Report, New York State Economic Development Corp. (July 7, 2009) ...........................6 Working at Gawker Media, Gawker Media (Sept. 19, 2011, 10:31 PM)....................................................................................7

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PRELIMINARY STATEMENT New York has an undeniably strong public policythe strongest in the Nation, actuallyof protecting its journalists from being forced to divulge their confidential sources. Under New Yorks Shield Law, no reporter can be compelled to unmask her confidential sourcesno matter how vital that information may be to a criminal investigation. That muscular public policy ensures that New York reporters can keep their promises of anonymity to sources, and that sources can speak to reporters without fear of reprisal. New York has long endorsed this public policy for an important reason: By categorically protecting journalists from having to burn their confidential sources, the State ensures that the publics understanding of the news will be shaped not by official sound bites and platitudes, but by useful and revelatory fact. It is a public policy grounded firmly in democratic selfgovernance; its fruits are groundbreaking stories like the Pentagon Papers and the reports on the true extent of government surveillance. The principal question in this case is whether New Yorks robust public policy of press freedom ends at the state line. Respondent James Holmesknown colloquially as the Batman killeris a suspected mass murderer awaiting trial in Colorado. Upset about revelations contained in a story that Appellant Jana Winter wrote for FoxNews.com, Holmes sought a subpoena from the Supreme Court

requiring Wintera New York journalist working for a New York-based news organizationto travel to Colorado, where she would be asked under oath to reveal the confidential sources cited in her article. As Holmes sees it, any time a litigant like him seeks a reporters confidential sources through the Uniform Act to Secure the Attendance of Witnesses from Without the State in Criminal Proceedings, the reporter is at the mercy of whatever protections the foreign state chooses to provide. If the state chooses to provide less protection than New Yorkor no protection at allthen the reporter is simply out of luck. Below, Holmes rested his case entirely on Matter of Codey v. Capital Cities, American Broadcasting Corp., 82 N.Y.2d 521 (1993). There, a New Jersey prosecutor sought nonconfidential material from a New York news organization, which challenged the subpoena on the grounds that the material was privileged under New Jersey law. This Court held that, as a matter of comity and respect for New Jerseys judicial processes, it would not presume to tell New Jersey what was privileged under New Jersey law and therefore refused to quash the subpoena. But in holding that evidentiary privileges are generally not for New York courts to decide in Uniform Act proceedings, the Court was careful to carve out a caveat. It warned that its decision should not be construed as foreclosing the possibility that in some future case a strong public policy of this State, even one embodied in an

evidentiary privilege, might justify the refusal of relief under the Uniform Act. Id. at 530 n.3. That caveat was a necessary one because for over 80 years this Court has held that a well-established public policy of the State must always trump comity. That rule is based on important principles of democratic governance and separation of powers. After all, New Yorks courts are bound to implement the States public policy as expressed by the Legislature in its statutes. Comity, however, is no more than a voluntarily decision to respect another states interests in a particular matter. And if those foreign interests conflict with this States core public policies, then courts in this State have no choice: public policy, not comity, controls. That settled rule of New York jurisprudence resolves this case. In contrast to New Yorks absolute privilege, Colorado affords its journalists only a qualified protection, one which can be pierced any time a reporters sources are material and necessary to a proceeding and a balancing of the interests favors disclosure. That difference is more than one of evidentiary technicalities; it goes to the heart of the differing public policies underlying the two states statutes. New Yorks Legislature determined that reporters confidential sources should be protected absolutely, regardless of the equities of any particular case. Colorados Legislature was far less solicitous; it decided to leave the issue up to individual judges on a case-by-case basis. Colorado was certainly entitled to adopt that policy for its

journalists, its news organizations, and its populace. But this Court need not indeed, should notreflexively implement that peculiar policy here. The Appellate Division though did just that. Even though all five justices below recognized that New York does indeed have a robust public policy against having its journalists divulge their confidential sources, a splintered 3-2 majority dismissed this public-policy objection as an impermissible claim of privilege barred by Codey. As Justice Saxe explained in a vigorous dissent, the majoritys approach fundamentally undermines this States public policy. Especially in an era when New York journalists report on matters of public concern all over the nationand around the worldthe majoritys rule would essentially cabin the protections afforded by New Yorks public policy to reporters on the Metro desk. This Court should reverse and quash the subpoena. Separate and apart from conflicting with New Yorks public policy, the Appellate Divisions opinion erred by categorically refusing to consider the harm to Winters career if she is forced to burn her sources. Under the Uniform Act, a request for testimony from another state should be refused if it would impose an undue hardship on the witness. Here, Winters affidavit explainedwithout contradictionthat she relies on confidential sources for a living and that it would destroy her career as an investigative journalist were she compelled to reveal them. But the Appellate Division held that the Act is not concerned with such a real and

substantial harm; instead, it is concerned solely with trivial hardships like traveling to Colorado. That gets things backwards. If travel can be a legitimate and relevant hardship, then surely the imminent destruction of ones livelihood can as well. In miscomprehending the appropriate test for undue hardship, the Appellate Division erred as a matter of law. This Court should therefore reverse. QUESTIONS PRESENTED 1. Whether New Yorks muscular public policy of categorically immunizing reporters from having to reveal their confidential sources trumps the comity that New York courts typically extend other states requests for testimony from New York residents in criminal proceedings. 2. Whether it is relevant, when determining whether a New York journalist will suffer an undue hardship if she is compelled to testify or produce her notes in an out-of-state criminal proceeding, that the request for testimony and notes would require her to reveal the identities of her confidential sourcesand thus destroy her career. JURISDICTIONAL STATEMENT The Appellate Division, First Department entered its decision and order on August 20, 2013. A. 23. Winter served the Appellate Divisions order with notice of entry and noticed her appeal to this Court the next day. A. 24-56. This Court has jurisdiction under CPLR 5601(a) because two justices dissented from the

Appellate Divisions decision on questions of lawnamely, whether issuing the subpoena for Winters testimony and notes regarding her confidential sources was contrary to New Yorks public policy and whether the harm the subpoena would inflict on Winters career could be considered an undue hardship under CPL 640.10. See Codey, 82 N.Y.2d at 526-527 (CPL 640.10 special proceeding is a civil action subject to the CPLRs appealability provisions). Winter preserved these issues in the Supreme Court in her memorandum of law in opposition to Holmes application, R. 835-845, and in her briefs to the Appellate Division. Winter App. Div. Opening Br. 22-37, 49-50; Winter App. Div. Reply Br. 4-11, 25-26. NATURE OF THE CASE New Yorks Special Relationship with the Media. New York is the the media capital of the world, home to more than 17,000 media companies employing more than 300,000 people in New York City alone, including more than 20.4 percent of those employed by domestic magazine publishers and 15.4 percent of those employed by domestic book publishers. Steven Strauss et al., Media.NYC.2020 Final Report, New York State Economic Development Corp. 5 (July 7, 2009); R. 752. Even limited to just journalism, New York is a hotspot for news outlets of all sizes and all platforms. New York-based companies range from new-comers like The Huffington Post and Gawker to historical mainstays like The

New York Times and the New York Post.1 New York is also at the forefront of educating the next generation of reporters. The Columbia Graduate School of Journalism, New York Universitys Arthur L. Carter Journalism Institute, and Syracuse Universitys Newhouse School of Public Communications all teach budding journalists about the standards and ethics of their chosen profession standards that hold the identity of a reporters confidential sources is sacrosanct and cannot be revealed for any reason. See R. 357. New Yorks pride of place as the global leader in news is no accident; it dates back to the colonial era. In 1735, publisher John Peter Zenger famously refused to reveal an anonymous contributors name when he was charged with seditious libel for publishing a series of anonymous articles critical of the royal governor of the colony. Robert W. Jones, The Law of Journalism 23 (Washington Law Book Co. 1940). His acquittal by a jury of New Yorkers has long been recognized as the fountainhead of the States effort to protect newsgathering based on confidential sources. Id. And New Yorks historically strong relationship with and protection for the media has continued to this day. As Judge Wachtler has
1

See Laura Kusisto, HuffPo Bloggers Will Soon Shop More at Trader Joes, The New York Observer, Jan. 18, 2011, available at http://observer.com/2011/01/ huffpo-bloggers-will-soon-shop-more-at-trader-joes/; Working at Gawker Media, Gawker Media (Sept. 19, 2011, 10:31 PM) http://gawker.com/5784912/working-atgawker-media; Contact Us, The New York Times Company, http://www.nytco.com/contact_us/ (last visited Sept. 8, 2013); Contact, The New York Post, http://www.nypost.com/contact/ (last visited Sept. 8, 2013).

summed up, New York has long provided one of the most hospitable climates for the free exchange of ideas, traceable to the fact that [i]n the 19th century a large portion of the publishing industry was established in New York and the State began to serve as a cultural center for the Nation. Matter of Beach v. Shanley, 62 N.Y.2d 241, 255-256 (1984) (Wachtler, J., concurring). And it is a status New York still enjoys. Id. The States rich history of protecting media freedoms has also been recognized in its positive law. Under the New York Shield Law, no professional journalist can be held in contempt for refusing or failing to disclose any news obtained or received in confidence or the identity of the source of any such news, even when the identity of a source of such material or related material gathered by a [journalist] * * * is * * * highly relevant to a particular inquiry of government. N.Y. Civ. Rights Law 79-h(b). In other words, New York protects a journalists confidential sources unequivocally and absolutely. It is a protection grounded in New Yorks social, economic, and historic ties to the media. As Governor Rockefeller explained when he signed the Shield Law, that bold initiative made New York Statethe Nations principal center of news gathering and disseminationthe only state that clearly protects the publics right to know and the First Amendment rights of all legitimate newspapermen, reporters and

television and radio broadcasters. Approval Memorandum of Governor Nelson A. Rockefeller, 1970 N.Y. Legis. Ann., at 508. James Holmes, the Aurora Shootings, and Holmes Notebook. On July 20, 2012, James Holmes entered a midnight screening of The Dark Knight Rises at a movie theater in Aurora, Colorado and opened fire, killing 12 and wounding over 70 others. R. 336-337. Holmes was apprehended at the scene and later charged with the 12 killings and 144 other felonies. R. 74, 362. The Aurora shootings shocked the nation and have generated widespread media attention. Between July 20 and July 30, 2012 alone, there were 7,891 articles in Westlaws News, All database regarding Holmes and his crimes. R. 352. In the wake of Holmes depravity, many were left asking why? This case is about Jana Winters attempts to answer that question. Winter is a professional journalist who lives and works in New York. R. 335. After working in India as a freelance reporter and documentary filmmaker, Winter obtained her masters degree from Columbia Universitys Graduate School of Journalism. Id. Winter was then hired by the New York Post, where she received a Deadline Club Award from the New York chapter of the Society of Professional Journalists, R. 335-336, which recognize[s] the best in New York area journalism. Award Winners and

Finalists Presented in 2008, Deadline Club (May 13, 2008).2 After working at the Post for two years, Winter was hired by Fox News as an investigative reporter for FoxNews.com. R. 335-336. At Fox News, Winter primarily covers the crime beat and has developed a specialty in reporting on mass killings. R. 336. As all-too-recent history demonstrates, the facts surrounding these terrible crimes, their underlying causes, the ensuing criminal investigations, the scars that these tragedies leave on their victims and local communities, and the policies that can and should be adopted to prevent them, are matters of critical public concern. R. 351. But neither the public nor policy makers can meaningfully discuss these important issues unless they have the facts. And in cases like these, the facts often only come out through the tireless efforts of investigative reporters like Winter. A journalists ability to go beyond official press releases and uncover the facts that authorities, corporations, or even just private individuals might prefer be kept hiddenthe very definition of an investigative reporterdepends almost entirely on the journalists ability to cultivate and maintain relationships with sources. R. 346-348. And in many cases, a source will not come forward unless his or her identity is protected. For this reason, journalists take as an article of faith that they cannot disclose the identities of confidential sources. R. 336, 338, 357.
2

Available at http://www.deadlineclub.org/archives/105.

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Winter is no different. During the course of her career, Winters ability to gather news has hinged on her ability to earn a sources trusttrust that she can often earn only by promising the source confidentiality. R. 336. And Winters promises to her sources have paid off. By using confidential sourcesand keeping them confidentialWinter has frequently been able to break news about important public issues that would not come to light otherwise. Id. As reports of the Aurora shootings broke, Fox News assigned Winter to cover the story. R. 336-337. Following up on a tip, Winter learned that before the massacre, Holmes had sent a package to a psychiatrist at the University of Colorado. R. 159-160. Just after he was taken into custody, however, Holmes asked to have the package returned. R. 160. Fearing that the package might be a bomb, Colorado authorities conducted a massive search of the University of Colorado campus on July 23, 2012 with multiple teams of first responders from various jurisdictions and agencies. R. 225-226. Several hours into the search, Holmes package was located in a campus mailroom, opened, and found to contain a notebook. R. 125-128; 133-134. As part of her coverage, Winter wrote an articleMovie Massacre Suspect Sent Chilling Notebook to Psychiatrist Before Attackwhich was published on FoxNews.com on July 25, 2012. R. 341-343. Winters article quoted an unidentified law enforcement source as stating that the notebook was full of

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details about how [Holmes] was going to kill people and included drawings and illustrations of the massacre. R. 342. That same source also suggested that the package containing Holmes notebook had been in the University of Colorado mailroom since July 12. Id. Winters article also cited a second law enforcement source as stating that authorities obtained a warrant from a Colorado judge to seize and open the package after it was discovered. Id. Winter was only able to learn about the notebooks contents and the circumstances surrounding its discovery by promising her sources anonymity. R. 337. The contents of Holmes notebookand whether they may have been a warning that, if discovered earlier and heeded, could have prevented the massacrewere issues of significant public concern. R. 351. Winter was far from the only journalist to report on the notebook and its contents. Indeed, she was far from the only reporter to attribute information regarding the notebook to unnamed sources. Winters competitors, starting on the same day as Winters article, published dozens of news reports describing the recovery of Holmes package and its contents and attributing their information to unnamed sources. R. 351-352; see also R. 392-471 (stories from CBS, NBC, MNSBC, and CNN). Colorado Proceedings Regarding the Notebook. On July 23, 2013, before news of the notebook broke, the Colorado District Court entered an order prohibiting law enforcement officials from making any extrajudicial statement if

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the official knows or should know that the statement will have a substantial likelihood of prejudicing [the] criminal proceeding. R. 867. Two days later after the notebook was discovered and the same day Winters story ranHolmes sought and obtained an order specifically limiting the extrajudicial statements law enforcement could make about the notebook. R. 709-710, 715. Two months after Winters article was published, Holmes moved for unspecified sanctions. Holmes alleged that law enforcement had violated the District Courts pre-trial publicity orders by speaking to Winter about the notebook and that those violations somehow undermined Mr. Holmes rights to due process and a fair trial by an impartial jury. R. 372-374. Then, on December 10, the Colorado court held an evidentiary hearing whose goal was to lay the necessary foundation for Holmes to compel Winter to reveal her confidential sources identities. As Holmes counsel explained, [a]ny inquiry into whether a reporter or journalist privilege would be entertained in the state of Colorado would involve us having to prove that we could not obtain this information by any other means. R. 122-123. Holmes therefore used the hearing to call officers who he thought might be Winters sources, ask them what their contact with the package was, ask them if they were the source of the leak or if they knew who the source of the leak was, accept their sworn answers, and then decide how to proceed after that. R. 123. In total, Holmes called fourteen officers and submitted affidavits from six others.

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R. 62. Each witness who took the stand testified that he or she was not Winters source and did not know who was. Id. Holmes Seeks Winters Testimony. Five weeks after the hearing, Holmes sought a certificate under Colorados version of the Uniform Act to Secure the Attendance of Witnesses from Without the State in Criminal Proceedings. Colo. Rev. Stat. 16-9-203. If granted, the certificate would allow Holmes to apply for a New York subpoena to compel Winter to testify and to produce to the Court her notes from her conversations with the sources mentioned in her article. R. 55-58. The Colorado District Court issued the certificate the next day. R. 64-66. The Colorado court concluded that there was no other way to discover the names of Winters law enforcement sources and that Winters testimony was material to the Colorado proceedings because Winters report implicated [Holmes] constitutional rights to a fair trial, to a fair and impartial jury, and to due process. R. 65-66.3 Certificate in hand, Holmes commenced a special proceeding in the Supreme Court by order to show cause on February 22, 2013. R. 69-70; see CPLR 403(d). In his application for a subpoena in New Yorklike in his motion for the certificate in ColoradoHolmes sought to compel Winters testimony and
3

Winter strongly disagrees with these conclusions and is contesting them in the Colorado proceedings. But the important point for present purposes is that the Colorado court made the findings, not their accuracy. Infra 35-36.

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production of her notes from her conversations with the two law enforcement sources mentioned in her article regarding the notebook. R. 70. In opposing Holmes application, Winter argued that issuing the requested subpoena would contravene New Yorks strong public policy of protecting journalists confidential sources, R. 837-845, and would impose an undue hardship on her. R. 835-836. In support, Winter submitted an affidavit from Mark Feldstein, a veteran investigative reporter and professor of journalism at the University of Maryland. R. 344-358. Feldstein is an expert in both the methods for sourcing investigative news and the harm caused by subpoenas seeking journalists confidential sources. R. 347-350. He explained that as an investigative journalist, Winter must rely on confidential sources to bring important facts to the public record, while at the same time offering citizens a more meaningful understanding of how institutions throughout society affect them. R. 355. Indeed, [m]ost investigative reporting of any significance is impossible without the use of confidential sources. R. 350. Feldstein also explained that if Winter was subpoenaed and revealed the identities of her sources for her story about Holmes notebook, it could mean the end of her career as an investigative journalist. R. 357. That was no hyperbole; Feldstein explained that a journalist who burns a source is highly unlikely to be trusted by any other sources in the future, making it nearly impossible [for the journalist] to

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continue to report the news effectively. Id. And even beyond the subpoenas impact on Winter, Feldstein notedbased on his own experience and academic studiesa subpoena seeking a reporters confidential sources poison[s] the atmosphere so as to make insightful, interpretive reporting more difficult for all news organizations, not just the one whose reporter has been subpoenaed. R. 356 (internal quotation marks and citation omitted). The Orders Below. The Supreme Court (Larry Stephen, J.) heard argument, R. 883-898, and granted Holmes application in a brief, oral opinion on March 7, 2013. R. 890-892. The court concluded that Winters testimony is material and necessary to resolve the issues regarding the alleged violation of [the Colorado District Courts] protective order, which bans law enforcement officials from leaking any information about the case that might be prejudicial to the defendant, Mr. Holmes. R. 890. The court also concludedwithout elaborationthat Winters appearance would not be an undue hardship on her because Holmes had agreed to pay all expenses and because the court found that her appearance there would not be an undue hardship, including issues about public policy. R. 891. And only after prodding by Winters counsel did the court add that it did not think there is a public policy implication created by the New York Shield Laws strong protections for journalists confidential sources. R. 892.

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Winter appealed to the Appellate Division, R. 31-33, where a sharply divided panel affirmed the Supreme Courts decision to issue the subpoena in a 3-2 decision. All five justices agreed that New York has a strong public policy of protecting reporters confidential sources. A. 6 (majority); A. 17-18 (dissent). They disagreed, however, as to the relevance of that strong public policy to the subpoenas validity. The majority, in an opinion by Justice Clark, concluded that Winters contentions regarding the Shield Law were matters of privilege that she was required to raise in Colorado District Court. A. 4-5. The majority also reasoned that New Yorks public policy was not implicated because there was no absolute certainty that Winter would be compelled to divulge her sourcesthe Colorado court might always uphold Winters claim of privilege under Colorados more limited protections for journalists. A. 6-7. Finally, the majority disagreed that the harms to Winters career from her being compelled to reveal her sources had any relevance to the undue hardship analysis under CPL 640.10; undue hardship, the majority asserted, does not involve an analysis of the potential consequences if [Winter] exercises privilege in Colorado. A. 5. Justice Saxe, joined by Justice Acosta, dissented. A. 10-23. Justice Saxe explained that this Courts statement in Codey that a strong public policy of this State, even one embodied in an evidentiary privilege, might justify the refusal of relief under CPL 640.10 was tailor-made for this case, where New Yorks public

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policyembodied in the Shield Lawis demonstrably more protective of journalists rights than Colorados more porous conditional privilege. A. 17. Justice Saxe therefore rejected the majoritys conclusion that the Shield Laws protections were merely an issue of privilege that Winter should be required to raise in Colorado. A. 19. Justice Saxe also disagreed with the majoritys assertion that the clash between New Yorks and Colorados public policy was not implicated in this case because Winter may ultimately succeed in warding off Holmes request for her testimony under Colorados qualified privilege. A. 19-20. As Justice Saxe explained, the Colorado District Court had already concludedin issuing the certificate calling for Winters testimonythat it considers [Winters] identification of her confidential sources to be important, relevant and necessary for the protection of [Holmes] constitutional trial rights. A. 20 (emphasis omitted). The only way Winter could avoid revealing her sources, then, is if she prevailed under Colorados nebulous balancing testone that attempts to weigh her First Amendment interests against Holmes constitutionally protected trial rights as a defendant. Id. Justice Saxe thus concluded that the majoritys demand for absolute certainty failed to acknowledge the near certainty that the Colorado court will reject [Winters] privilege claim and compel her to provide the identities

18

of her confidential sources, leaving her to face either a contempt order and incarceration, or the loss of her reputation as a journalist. Id. Finally, Justice Saxe disagreed with the majoritys holding that the harms to Winters career could not be an undue hardship warranting denial of relief. A. 22-23. Nothing in CPL 640.10(2), noted Justice Saxe, limits the concept of undue hardship to the unpleasantness or cost of travel. A. 23. Justice Saxe concluded that the probable result of incarceration or the loss of [Winters] livelihood is far more of a hardship than the travel-related cost and investment of time the majority artificially limited itself to and warranted quashing the subpoena. Id. This appeal followed. A. 24-25. ARGUMENT I. THE SUBPOENA SHOULD BE QUASHED BECAUSE COMPELLING WINTER TO REVEAL HER CONFIDENTIAL SOURCES WOULD VIOLATE NEW YORKS PUBLIC POLICY. A. Another States Request Under CPL 640.10(2) May Not Be Honored If Doing So Would Violate This States Public Policy.

CPL 640.10 is New Yorks enactment of the Uniform Act to Secure the Attendance of Witnesses from Without the State in Criminal Proceedings. People v. McCartney, 38 N.Y.2d 618, 619-620 (1976). Enacted by all 50 states, the District of Columbia, Puerto Rico, and the Virgin Islands, the Act is a reciprocal statute that provides detailed * * * procedures whereby a party to a criminal

19

proceeding in one State can either obtain the presence of a witness residing in another State or can compel the production of evidence located in another State. Codey, 82 N.Y.2d at 525-526; see also New York v. ONeill, 359 U.S. 1, 4 (1959) (detailing the history of the Uniform Act). The process afforded by CPL 640.10, however, is a matter of Legislative grace, not constitutional right. Absent procedures like those in the Uniform Act, criminal defendants have no abilityand states have no powerto compel nonparty, out-of-state citizens to testify in criminal proceedings. McCartney, 38 N.Y.2d at 621 ([A] State is not constitutionally required by the Sixth Amendment guarantee of compulsory process to compel the attendance of witnesses beyond its jurisdiction over whom it has no subpoena power.); Colorado v. Arellano-Avila, 20 P.3d 1191, 1193 (Colo. 2001) (Without an explicit grant of authority * * * a Colorado court may not procure the testimony of parties outside its jurisdiction.). This Courts construction of CPL 640.10 in this case, then, is not a question of constitutional dimension, but, rather, one of statutory construction. McCartney, 38 N.Y.2d at 621. This Court last interpreted CPL 640.10 in Codey. There, a New Jersey grand jury sought the American Broadcasting Companys outtakes from its interview with a basketball player involved in a point-shaving scheme. 82 N.Y.2d at 524. Although the players identity was confidential when the report aired

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ABC showed the player in silhouette and disguised his voicethe player later voluntarily testified before the grand jury, admitting that he was ABCs confidential source. Id. The player could not remember, however, everything he had said to ABCs reporter in their 30-minute interview. Id. The New Jersey grand jury therefore sought ABCs nonconfidential outtakesthe portions of the interview ABC did not airto obtain a full picture of what the player had previously told others about the scheme. Id. ABC resisted New Jerseys CPL 640.10 application for a subpoena, arguing that the material was privileged under New Jerseys qualified privilege for nonconfidential, unpublished newsgathering material. Id. at 525. This Court held that the question of whether the outtakes were privileged under New Jersey law was irrelevant to whether the subpoena should issue. Id. at 530. It emphasized that the interests of comity and respect for a sister States investigative processes counseled against New York courts turning hearings on CPL 640.10 applications into mini-trials on issues of privilege that will inevitably have to be litigated again anyway during the course of the demanding States criminal proceeding[s]. Id. at 529-530. Furthermore, requiring a New York court to adjudicate whether ABCs outtakes were privileged under New Jerseys shield lawas ABC had asked the Supreme Court to dowould make little sense because the courts of [New Jersey] are better qualified to make that determination, both because of their

21

superior familiarity with local law and because of their direct access to the parties or the facts in the underlying controversy. Id. at 530. Thus, New York courts should generally limit themselves to whether the evidence is material and necessary and whether compelling the witness to testify would impose an undue hardship on the witness, leaving issues of privilege to the demanding state. Id. at 530-531. But in reaching its holding, this Court was careful to carve out a caveat. The Court cautioned that its decision should not be construed as foreclosing the possibility that in some future case a strong public policy of this State, even one embodied in an evidentiary privilege, might justify the refusal of relief under CPL 640.10 even if the material and necessary test set forth in the statute is satisfied. Id. at 530 n.3. That caveat was a wise and necessary one. For over 80 years this Court has recognized a rule that [this States] public policy must always prevail over comity of the sort that drove the decision in Codey. Russian Socialist Federated Soviet Republic v. Cibrario, 235 N.Y. 255, 263 (1923). And it is a rule that this Court has adhered to time and again: where there is a conflict between [New Yorks] public policy and application of comity, [this States] own sense of justice and equity as embodied in [its] public policy must prevail. J. Zeevi & Sons, Ltd. v. Gridlays Bank (Uganda) Ltd., 37 N.Y.2d 220, 228 (1975); accord Ehrlich-Bober & Co. v.

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Univ. of Houston, 49 N.Y.2d 574, 580 (1980) (Today in New York the determination of whether effect is to be given foreign legislation is made by comparing it to our own public policy; and our policy prevails in case of conflict.). That this States public policy must always prevail over comity-based respect for other states processes is inherent in the definition of comity. As this Court has explained, the doctrine of comity does not of its own force compel a particular course of action. Rather, it is an expression of one States entirely voluntary decision to defer to the policy of another. Debra H. v. Janice R., 14 N.Y.3d 576, 600 (2010) (citation omitted); accord Bourdeaux v. State, Dept of Transp., 11 N.Y.3d 321, 326 (2008). And there are often good reasons for New York courts to make a voluntary decision to respect another States policy prerogatives. Affording comity may be perceived as promoting uniformity of decision, as encouraging harmony among participants in a system of co-operative federalism, or as merely an expression of hope for reciprocal advantage in some future case. Ehrlich-Bober, 49 N.Y.2d at 580. In other words, New York courts may choose to do justice that justice may be done in return. Cibrario, 235 N.Y. at 258. In the typical CPL 640.10 proceeding, the case for comity is usually clear. As an explicitly reciprocal statutethe Uniform Acts procedures are only available if both the sending state and demanding state have adopted it, CPL

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 640.10(2)the Act counsels in favor of New York courts respecting other states requests for New York witnesses so that New York might have ready access to other states citizens when New York is the requesting state. See Codey, 82 N.Y.2d at 530. Moreover, respect for other states judicial processes typically means that New York courts should assume that other states will fairly adjudicate claims of privilege asserted by New York citizens. See id. But no matter how strong the case for comity may be in a given situation, the practical benefits of comity cannot trump the public policy of this State. In New York, [t]he power to determine what the policy of the law shall be rests with the Legislature within constitutional limitations, and when it has expressed its will and established a * * * policy, courts are required to give [it] effect. F.A. Straus & Co. v. Canadian Pac. R. Co., 254 N.Y. 407, 413-414 (1930) (emphasis added); accord Farrginton v. Pinckney, 1 N.Y.2d 74, 82 (1956). And in applying these principles, this Court has refused to accord comity to all manner of acts from other jurisdictions, including other states damages caps,4 other states governmental immunities,5 and even foreign courts adoption decrees.6 In each case, the guiding

Kilberg v. Ne. Airlines, 9 N.Y.2d 34, 40 (1961) (declining to apply Massachusetts damages cap in New York tort suit because the cap was completely contrary to our public policy).
5

Ehrlich-Bober, 49 N.Y.2d at 581 (declining to apply Texas limitation on venues where a Texas state agency may be sued because doing so would be contrary to

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principle was the same: In cases of conflict between foreign [public policy] and New York public policy, New York public policy must prevail. Sachs v. Adeli, 26 A.D.3d 52, 55 (1st Dept 2005). In Codey, there was no conflict between New York and New Jerseys public policies because both states recognized a qualified privilege for a journalists nonconfidential outtakes. Compare N.Y. Civ. Rights Law 79-h, with N.J. Stat. Ann. 2A:84A-21; see also Matter of Codey v. Capital Cities, Am. Broad. Corp., 183 A.D.2d 126, 133 (1st Dept 1992) (noting that New York and New Jerseys shield laws are substantially the same, eliminating any issues of policy conflicts between the two jurisdictions). Although the two states privileges may have differed in the details, see Codey, 82 N.Y.2d at 530, the public policies underlying them were sufficiently similar such that there was no conflict requiring this Court to refuse comity to the New Jersey certificate. See id. at 530 n.3.

New Yorks very strong public policy of assuring ready access to a forum of redress of injuries arising out of transactions spawned here); see also DeRose v. N.J. Transit Rail Operations, 165 A.D.2d 42, 44-45 (3d Dept 1991) (declining to apply New Jerseys Tort Claims Act in New York tort suit because New Jersey does not offer New York residents similar protection as New Yorks Court of Claims Act).
6

Barry E. (Anonymous) v. Ingraham, 43 N.Y.2d 87, 94-95 (1997) (refusing to recognize Mexican adoption decree because the Mexican court only engaged in a perfunctory examination into the interests of the child, contrary to one of [New Yorks] strongest public policiesthe welfare of its children).

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This reading of Codey is not our invention. The practice commentaries recognize that in Codey the Court was not directly confronted with a situation where evidence that would be privileged by statute under New York law would be completely unprotected in the demanding state because it so happened that the demanding state had a law similar to our[s] in that regard. McKinneys Consol. Laws of N.Y. Ann., 80 CPL 620 to 709-Commentaries by Presier (book 11A, 2009). One lower-court case, too, has held that Codeys footnote 3 is meant to apply in cases such as this, where a demanding State does not recognize or have similar safeguards to protect the integrity of a fundamental evidentiary privilege. In re Connecticut, 179 Misc. 2d 628, 628 (Nassau Cnty. Ct. 1999). And our reading of Codey is in accord with this Courts cases about the interplay between public policy and comity. Where another states public policy is in accord with New Yorks in principle, but expressed in a different way, this Court will defer to the other states implementation of the public policy, as it did in Codey. See Crair v. Brookdale Hosp. Med. Ctr., 94 N.Y.2d 524, 530-531 (2000) (according comity to the Virginia and Maryland tort claims acts because, although New York has a somewhat different procedure for suits against the State in our Court of Claims, * * * a requirement of filing a notice of claim with a governmental entity as a condition precedent to suit is not against New Yorks public policy); Watts v. Swiss Bank Corp., 27 N.Y.2d 270, 279 (1970) (Recognition [of a foreign

26

judgment] will not be withheld merely because the choice of law process in the rendering jurisdiction applies a law at variance with that which would be applied under New York choice of law principles.). In short, Codey does not hold that CPL 640.10 proceedings are categorically exempt from this Courts universal rule that New Yorks public policy always trumps comity. Instead, as Codeys footnote 3 recognizes, the question simply did not arise on Codeys facts. As a consequence, if the Colorado District Courts request for Winter to appear in Colorado with her notes, identify her confidential sources, and give testimony regarding her conversations with them, R. 64-66, is contrary to New York public policy, it cannot be honored. And that is true no matter how strong the tug of comity is in other CPL 640.10 cases. B. The Colorado District Courts Request For Winter To Divulge Her Confidential Sources Is Contrary To New Yorks Strong Public Policy Of Absolute Protection For Reporters Confidential Sources.

In the Appellate Division, all five justices agreed that New Yorks Shield Law represents a strong public policy and the long history of vigilantly safeguarding freedom of the press. A. 6 (majority); A. 17-18 (dissent). That conclusion was a sound one. This Court recognized in Beach that [i]n enacting the * * * Shield Law, the Legislature expressed a policy according reporters strong protection against compulsory disclosure of their sources or information obtained in the news-gathering process. 62 N.Y.2d at 245. And in expressing 27

that policy, the Legislature * * * presumably debated the efficacy of granting broad protections to the press, weighed the competing policy considerations, and reached a formulation that in its view serves the best interest of the public, making the strong protections of the Shield Law a public policy of the State. Knight-Ridder Broad., Inc. v. Greenberg, 70 N.Y.2d 151, 155 (1987). Legislative history confirms that the Legislature understood the Shield Law to reflect a public policy of the highest order. When Governor Rockefeller signed the Shield Law, he made clear that the law protected public, as well as journalistic, interests: A representative democracy, such as ours, cannot exist unless there is a free press both willing and able to keep the public informed of all the news. Approval Memorandum of Governor Nelson A. Rockefeller, 1970 N.Y. Legis. Ann., at 508. Indeed, the Legislature has remained actively involved in reasserting New Yorks public policy of absolute protection for journalists sources. Two decades after the Shield Laws passage, the Legislature amended subdivision (b) to clarify that there is an [a]sbolute protection for confidential news. N.Y. Civ. Rights Law 79-h(b) (emphasis added). In his signing memorandum, Governor Cuomo explained the amendments purpose was to respond to decisions of the Court of Appeals [that raised questions about] the scope of the Shield Law. Approval Memorandum of Governor Cuomo, 1990 N.Y. Legis. Ann., at 2693. And the

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Legislatures response was loud and clear. It would resolve[] those questions in favor of a free and unfettered press. Id.; see also Beach, 64 N.Y.2d at 250 (noting that the current version of the Shield Law embodies the Legislatures intent to grant a broad protection). In contrast with New Yorks strong public policy of absolutely protecting journalists confidential sources, Colorado has taken a more equivocal approach. For most of its history, Colorado recognized no protection for journalists, holding that any time a confidential sources identity is relevant to the subject matter in a case, a reporter may be compelled to divulge it. Gagnon v. District Court, 632 P.2d 567, 569 (Colo. 1981). And when the Colorado Legislature acted in 1990, it enacted only a qualified privilege for confidential sources, one that may be abrogated any time the party seeking disclosure shows by a preponderance of the evidence that (1) the news information is directly relevant to a substantial issue involved in the proceeding, (2) the news information cannot be obtained by other reasonable means and (3) a strong interest of the party seeking to subpoena the newsperson outweighs the interests under the first amendment to the United States constitution of such newsperson in not responding to a subpoena and of the general public in receiving news information. Colo. Rev. Stat. 13-90-119(3). Thus, unlike the categorical protection in New Yorks Shield Law, the Colorado Shield Law is plagued by the hopeless indeterminacy that often

29

accompanies a qualified privilege. Under Colorados qualified privilege, confidential sources and journalists alike cannot predict with meaningful certainty whether a court, prodded by an aggressive litigant, will someday pry into their exchanges. But an absolute privilege is just thatit provides both journalist and source with absolute assurance that no court, under any circumstance, will invade the sanctity of the confidential relationship. This fundamental difference yields fundamentally different results in the real world. Where a State promises journalists and sources absolute protection, the public is likely to hear more about matters of profound public importance. R. 355-357. In other words, New Yorks legislaturebut not Coloradoshas specifically eliminated any chance of hesitancy by sources, reporters, editors, or any other media participant by making New Yorks protections for journalists confidential sources absolute. Id. Below, Winter argued that this stark difference between the two states shield laws was a fundamental difference in public policyone where New Yorks public policy had to prevail. Winter App. Div. Opening Br. 31-37. But the Appellate Division majoritylike the Supreme Court before itdismissed Winters argument as merely an attempt to litigate in New York the question of whether her sources were privileged. A. 4-6; R. 891. That characterization was incorrect. In dismissing Winters contentions about New Yorks public policy as merely claims of privilege, the majority

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conflated two relatedbut distinctconcepts: the specific legal rules in this States statutes and the public policies of this State embodied in those legal rules and statutes. It is inevitable, of course, that specific legal rules and the public policy expressed by those rules are closely intertwined. This Court has held as far back as the 19th century that when determining New Yorks public policy, the Court must look to the law as expressed in statute. Ehrlich-Bober, 49 N.Y.2d at 580 (emphasis added); see also N.Y. City Transit Auth. v. Transp. Workers Union of Am., 99 N.Y.2d 1, 7 (2002) (observing that public policy considerations [are] embodied in statute or decisional law ) (citation omitted); People v. Hawkins, 157 N.Y. 1, 12 (1898) ([W]hen we speak of the public policy of the state, we mean the law of the state, whether found in the Constitution, the statutes or judicial records * * *.). But the two are not the same thing. A request for relief can violate New Yorks public policy as expressed in its statutes even when it does not violate any specific provision of those statutes. Take, for instance, Matter of Walker, 64 N.Y.2d 354 (1985). There, a decedent bequeathed all his personal property to his adopted children. Id. at 357. Based on that provision, the decedents children argued they were entitled to their adoption decrees, which were in the decedents possession at the time of his death and which would reveal the identity of their birth mother. Id. at 356. This Court concluded that the gift of all personal property encompassed the adoption

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decrees the children demanded. Id. at 358. But the Court nonetheless refused to honor the testamentary gift, citing New Yorks strong public policy against allowing access to adoption records except for extraordinary causea policy embodied, in part, in Domestic Relations Law 114. Id. at 360. The Court freely admitted that Section 114 did not apply by its terms. After all, Section 114 applies only to adoption records made and maintained by New York courts, and the decrees at issue in Walker were issued by Illinois courts. Id. Moreover, those decrees had issued long before Section 114 was even enacted. Id. But the Court nonetheless emphasized that [t]he policy underlying [Section 114] is pertinent because the adopted children had called upon the New York courts to define the rights of parties to this proceeding. Id. at 361 (emphasis added). The Court therefore properly consider[ed] the social judgments embodied in our statutes. Id. And it held that because the decedents childrens request for their adoption decrees contravened New Yorks public policy of protecting the privacy of those records, the machinery of the courts [was] not available to order the transfer. Id. at 361. Critical to the question now before this Court here, the Walker Court rejected the dissents view that a testamentary gift was contrary to public policy only if it directly violates a statutory prohibition. Id. at 359. Instead, public policy would prevent the courts from ordering the transfer of a testamentary gift if

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the gift is contrary to the social judgment on the subject implemented by statute. Id. Just so here. New Yorks Shield Law does not operate extraterritorially to tell a Colorado court what privileges it must and must not recognize. See Restatement (Second) of Conflict of Laws 139 (1971) (issues of privilege are generally resolved according to the laws of the forum state). But the New York Shield Law nonetheless embodies this States strong public policy of protecting journalists from being forced to divulge their confidential sourcesa policy in sharp conflict with Colorados porous and equivocal privilege. Supra 29-30. And because the Colorado District Court and Holmes ask the courts of this state to issue a subpoena that will reveal Winters confidential sourcesa subpoena that is contrary to the social judgment on the subject implemented by the Shield Law the machinery of [New Yorks] courts is not available to them for that purpose. Walker, 64 N.Y.2d at 359, 361. When the Appellate Division majority eventually addressed the clash between New York and Colorados public policies, it dismissed the conflict on the ground that the facts presented on this record do not establish with absolute certainty that the Colorado District Court will require the disclosure of [Winters] confidential sources. A. 6-7. Presumably, the majority believed that because Winter may prevail on her motion to quash in the Colorado District Court under

33

Colorados more limited shield law, there was no need for New Yorks courts to step in. But the majoritys soothing assurance ignores that the Shield Law is meant to protect reporters from even the possibility of their confidential sources being revealed, misstates the record, and forgets New Yorks dismal history with similar assurances in the past. Contrary to the majoritys belief, it violates New Yorks public policy to issue a subpoena that even threatens to require Winter to burn her confidential sources. That, after all, is the point of an absolute privilege. It assures journalists and their sources that no matter the facts in a particular case, a journalist will not be required to divulge the identities of sources she has committed to keep secret based on an individual trial judges subjective weighing of the equities. As this Court has explained, [t]he threat to a newsman of being charged with contempt and of being imprisoned for failing to disclose his information or its sources can significantly reduce his ability to gather vital information. Beach, 62 N.Y.2d at 249-250 (quoting N.Y. Legis. Ann. 1970, p. 508) (emphasis added); see also R. 356-357 (summarizing the chilling effects of subpoenas for confidential sources). Regardless of whether Winter will prevail on her motion to quash in Colorado, then, it is contrary to New Yorks public policy for the Supreme Court to issue a subpoena that threatens Winter with a contempt citation for failing to reveal her

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confidential sources. And because it is contrary to New Yorks public policy for the Supreme Court to do so, it should not have. See supra 19-27. In any event, even if the likelihood of Winter succeeding on her motion mattered, the Appellate Division majority erred in focusing on whether it was absolute[ly] certain that Winter will be forced to testify. A. 6-7. The majority cited no case for its absolute-certainty standard. Whats more, the majority ignored the near certainty that the Colorado Court will reject [Winters] privilege claim and force her to reveal her confidential sources. A. 20 (Saxe, J., dissenting). Recall that for the Colorado District Court to pierce Winters qualified privilege under the Colorado Shield Law, it must conclude (1) Winters sources are directly relevant to a substantial issue involved in the proceeding, (2) Winters sources cannot be obtained by other reasonable means, and (3) Holmes interest in seeking Winters testimony outweighs the interests under the first amendment to the United States constitution of [Winter] in not responding to a subpoena and of the general public in receiving news information. Colo. Rev. Stat. 13-90-119(3). The Colorado court already made the first two findings in its certificate calling for Winters testimony. First, the certificate recites that it is a serious issue that Winters sources possibility violated the District Courts pre-trial publicity order and implicate[s] [Holmes] constitutional rights to a fair trial, to a fair and impartial jury, and to due process. R. 83. Second, the certificate states that there

35

is no other witness * * * nor any other documentation that could provide the names of the law enforcement agents who may have provided information to Jana Winter. Id. This congruity between the certificates findings and the prongs of the Colorado Shield Laws test to pierce a reporters privilege is no accident. Holmes counsel stated at the December 10 evidentiary hearing that its purpose was to lay the groundwork for overcoming the Colorado reporters privilege that Winter would likelyand didassert. R. 122-123. Although Winter is contesting these conclusions in the Colorado proceedings, they remain the operative conclusions in the record on appeal before this Court. See CPL 640.10(2) (the facts stated in the requesting courts certificate shall be prima facie evidence of all facts stated therein). The only thing standing between Winter and an order compelling her to testify as to her sources, then, is a finding by the Colorado District Court that Holmes interests outweigh Winters and the publics. A. 20. Andat least on the record before the Supreme Courtthat finding is likely. As the dissent below observed, having concluded that Winters identification of her confidential sources to be important, relevant and necessary for the protection of [Holmes] constitutional trial rights, it is unlikely that the Colorado District Court will conclude that what it views as [Holmes] strong interest in protecting his

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constitutional rights is outweighed by Winters First Amendment right and the publics interests in receiving news information. Id. The majoritys supposedly comforting statement that Winter may prevail on her claim of privilege in Colorado rings particularly hollow in light of New Yorks past history with similar pronouncements. In Superior Court v. Farber, 94 Misc. 2d 886, 888 (Sup. Ct. N.Y. Cnty. 1978), the Supreme Court rejected a New York Times reporters claim that a New Jersey prosecutors CPL 640.10 application should be denied because New Yorks absolute privilege for the identities of reporters confidential sources was significantly broader than New Jerseys qualified one. The Supreme Court reasoned that it need not intervene because no substantive right, constitutional or statutory, would be forfeited were [the reporter] to submit to New Jerseys jurisdiction; New Jersey would surely protect the statutory entitlements of New York citizens. Id. As it turned out, the Supreme Courts trust was misplaced. When the reporter appeared in New Jersey and was held in contempt for refusing to testify, the New Jersey Supreme Court applied New Jersey law and held that the limited protection provided by New Jerseys shield law was subordinate to the New Jersey Constitutions provision calling for compulsory production of testimony and documents in criminal trials. Matter of Farber, 394 A.2d 330, 337 (N.J. 1978). And the New Jersey Supreme Court did not so much as mention the New York

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Supreme Courts assurance that the New Jersey courts would implement the public policy underlying the New York Shield Law. Ultimately, the New York Supreme Courts miscalculation cost the reporter 40 days in county jail and his employer, The New York Times, $285,000 in fines. See David Corcoran, Theodore Trautwein, Judge in Landmark Press Case, Dies at 80, N.Y. Times, Sept. 2, 2000. The same threat looms here. If Winter is compelled to testify in Colorado, it is nearly certain the Colorado District Court will apply Colorados less protective shield law to Winters testimony and find that Holmes constitutionally protected trial rights trump Winters First Amendment interest in not testifying. See Farber, 394 A.2d at 337. And if that occurs, it will be too late for this Court to address whether [Winter] is protected by [New Yorks] Shield Law. A. 20 (Saxe, J., dissenting). Under Colorado law, if the District Court denies her motion to quash and for a protective order, it will order her to answer Holmes questions about the identities of her law enforcement sources. If Winter refuses, she can be held in direct contempt, see Colo. R. Civ. P. 107(a)(2), and summarily punished without further proceedings. See Colo. R. Civ. P. 107(b); Colorado v. Jones, 262 P.3d 982, 988 (Colo. App. 2011). As for what the punishment will be, the Colorado District Court just recently observed that Winter faces indefinite jail time; so long as she refuses to divulge her confidential sources, she risks remaining incarcerated in Colorado. Order Regarding Motion of Non-Party Witness Jana Winter to Vacate

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the September 30, 2013 Hearing Date (C-53), at 4 n.1, Colorado v. Holmes, No. 12CR1522 (Colo. Dist. Ct. Sept. 3, 2013)7; see also Colo. R. Crim. P. 107(d)(2). In short, Winter is at the point of no return in Colorado. If the orders below are affirmed and Winters motion in Colorado is denied, Winter will either have to divulge her sources and destroy her reputation as an investigative reporter or disobey the Colorado courts order and go to jail. New Yorks public policy will go unvindicated and there will be nothing that this Court will be able to do about it. The Court should act now and quash the subpoena. C. It Is Irrelevant That Winters Article Was Reported From Colorado.

Holmes argued below that New Yorks rule of applying its own public policy when it conflicts with that of other states should not govern here because it would allow journalists to ensconce themselves in New York to intentionally elude legal process even in the states from which they directly obtain information, the states in which they directly report information, and the states from which they profit, both personally, professionally, and financially. Holmes App. Div. Br. 20. Holmes parade of horribles, however, ignores the ubiquity of refusing to accord comity to requests by other states that violate the forum states public policy, the

Available at http://www.courts.state.co.us/userfiles/file/Court_Probation/18th _Judicial_District/18th_Courts/12CR1522/004/C-53%2009%2003%2013.pdf.

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realities of national news reporting in a 24-hour news cycle, and New Yorks special relationship with the media. Past practice confirms that Holmes breathless concerns are more imagined than real. Since the Founding, states have universally refused to accord comity to out-of-state requests that violate their strong public policies without creating the lawless havens Holmes fears. Indeed, Colorado, like New York, will not accord comity to another states policies in a Colorado action where they are contrary to the settled public policy of Colorado. Commercial Credit Co. v. Higbee, 20 P.2d 543, 544 (Colo. 1933); accord Milhoux v. Linder, 902 P.2d 856, 861 (Colo. Ct. App. 1995). In fact, Colorado has refused to accord comity to a New York venue provision in a contract between a New York company and its Colorado employee, concluding that the venue clause contravene[d] the strong public policy embodied in the Colorado Wage Claim Act. Morris v. Towers Fin. Corp., 916 P.2d 678, 679 (Colo. Ct. App. 1996). But Colorados rejection of the contract clause in Morris has caused no great upheaval in New York-Colorado relations, nor did it make Colorado a haven for lawless employees seeking to shirk their contractual obligations with New York companies. There is a reason for that. Each state understands that in our federal system of co-equal sovereigns, comity for one anothers laws is the default presumption, but when (as without doubt must occasionally happen) the interest or policy of

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any state requires it to restrict the rule, it has but to declare its will, and the legal presumption is at once at an end. Nevada v. Hall, 440 U.S. 410, 426 (1979) (citation omitted). Such an allowance respects the sovereign policy prerogatives of both New York and Colorado. The people of Colorado have consented to a system in which their State is willing to sacrifice the rights of reporters and the public to the orderly operation of the judicial process. See id. But the people of [New York], who have had no voice in [Colorados] decision, have adopted a different system. Id. Each is valid. But this Court has no power to subject Winterits citizento the public policy of Colorado, in which Winter had no say, any more than the Colorado court had the ability to subject the employee in Morris to the public policy of New York, in which the employee had no say. Far from causing chaos, a decision upholding New Yorks strong public policy of protecting reporters confidential sources will further the fundamental truth that [i]n this Nation each sovereign governs only with the consent of the governed. Id. at 426. This Courtlike the courts of Coloradomust hew to the public policy expressed by the governeds elected representatives first, and accord comity to the laws of other states second. See F.A. Straus & Co., 254 N.Y. at 413414. Although that rule may cause some interstate friction in a handful of cases, our democratic system tolerates no other result.

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Moreover, the mere fact that Winter reported her article from Colorado cannot be enough to strip her of New Yorks public policy protections. In every case presenting a conflict between comity and public policy, there is necessarily some interest asserted by another jurisdictionotherwise there would be no conflict to resolve. But New Yorks public policy would be a craven watchdog indeed if it retreated to its kennel whenever some [other states interest] is involved in the case. Morrison v. Natl Australia Bank Ltd., 130 S. Ct. 2869, 2884 (2010). That is particularly true when it comes to protecting reporters sources. Being part of the contemporary national news media necessarily entails reporting on events that take place outside the State and relying on non-New York sources. As a result, unless they aspire to only the Metro section, New York journalists like Winter must engage in on-the-ground reporting in states like Colorado. If a New York reporter can be stripped of her protections under New Yorks public policy simply because the reporter crossed state lines, New Yorks robust public policy in favor of confidential sourcing will become a dead letter for all but the most parochial stories. Thankfully, this Court rejected that result over 50 years ago. In Kilberg v. Northeast Airlines, this Court refused to apply Massachusetts draconian damage caps to a suit by a New York residents estate alleging negligence in a Massachusetts air disaster. 9 N.Y.2d at 39. The Court explained that [m]odern

42

conditions make it unjust and anomalous to subject the traveling citizen of this State to the varying laws of other States through and over which they move. Id. After all, a New Yorker traveling by air may find himself in a state he never intended to cross into as a result of entirely fortuitous events. Id. As a consequence, New Yorks courts should if possible provide protection for our own States people against unfair and anachronistic treatment by the laws of other states. Id. New York-based reporters movements, like those of the air traveler in Kilberg, are necessarily dictated by forces outside their control. It is happenstance that Winter ended up in Coloradowith its qualified privilegeto report on Holmes killing spree. Had Holmes massacred 12 and wounded over 70 in a movie theater in Marylandwhich coincidentally has a Shield Law that provides an absolute protection for reporters confidential sources8Winter would have reported from Maryland. To hold that New Yorks public policy of protecting reporters from having to reveal their confidential sources gives way every time a story happens to break in a state with less protection for the media is to abdicate this Courts obligation to ensure that New Yorkers enjoy the benefits of New Yorks public policies when they travel and work outside the state. See Kilberg, 9 N.Y.2d at 39.
8

See Md. Code Cts. & Jud. Proc. 9-112(d)(2).

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The need to protect New Yorks public policy in favor of confidential sourcing is particularly acute here, given New Yorks special relationship with the media. As we have explained, New York is the media capital of the world and a hub for national reporting on issues of profound public importance. Supra 6-9. If New York is to maintain that status, New York courts must vigilantly protect New Yorks public policy of protecting its reporters confidential sources. Otherwise, New York may find its media companies decamp to more protective states or worsecut back their reporting on topics of national interest. New York courts have recognized before that the need to maintain New York as a hospitable forum for national industries justifies robust enforcement of New Yorks public policy, even when doing so denies comity to other states. In Ehrlich-Bober, this Court refusedon public policy groundsto extend comity to a Texas statute limiting the venues where a Texas university could be sued on contracts. New Yorks recognized interest in maintaining and fostering its undisputed status as the preeminent commercial and financial nerve center of the Nation and the world justified a very strong policy of assuring ready access to a forum for redress of injuries arising out of transactions spawned here. 49 N.Y.2d at 581. The Court emphasized that New Yorks status as a convenient forum which dispassionately administers a known, stable, and commercially sophisticated body of law may be considered as much an attraction to conducting business in

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New York as its unique financial and communications resources. Id. And if New York were to sacrifice its status as the preeminent forum for the resolution of commercial disputes in the name of comity, that would impose an intolerable burden on the major financial institutions which make their homes in New York and which provide services to State and local governments nationwide as well as to many foreign countries. Id. at 582. In other words, Ehrlich-Bober recognized that refusing to enforce New Yorks public policy in the name of comity would do a disservice not only to New Yorks financial industries, but also the clients they served throughout the nation and throughout the world. And Ehrlich-Bober was no one-off statement. The Appellate Division has routinely invoked its teachings to refuse to accord comity to other states more-restrictive commercial practices.9

See Curtis, Mallet-Prevost, Colt & Mosle, LLP v. Garza-Morales, 308 A.D.2d 261, 270 (1st Dept 2003) (refusing to throw into doubt the extent to which an arbitration agreement will be enforced whenever the transaction or the parties have some connection to a foreign country and reaffirm[ing] New Yorks long-settled law and public policy favoring arbitration, thereby helping to maintain New Yorks central role in the economy of the nation and the world); Banco Nacional de Mexico, S.A. v. Societe Generale, 34 A.D.3d 124, 130 (1st Dept 2006) (holding that [a]s a primary financial center and a clearinghouse of international transactions, the State of New York has a strong interest in maintaining its preeminent financial position in protecting the justifiable expectation of the parties who choose New York law as the governing law of a letter of credit and refusing to accord comity to a Mexican injunction).

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The same concerns are present here. New Yorks media companies do not congregate in New York merely because of New Yorks unique location and communications capabilities. Instead, those companies recognize that New York has a settled, uniquely protective public policy that respects and protects journalists confidential sources. If that public policy can be discarded anytime a New Yorkbased journalist reports on a story outside of New Yorks borders, New York will find its role as the media capital of the world threatened. In this age of fast and reliable Internet communications, a news room can operate as effectively out of Washington, D.C. as it does New York City. This Court should therefore reaffirm that New Yorks strong public policy of protecting journalists confidential sources will not yield whenever * * * the parties have some connection to another jurisdiction, and quash the subpoena. Curtis, 308 A.D.2d at 270. II. THE APPELLATE DIVISION ERRED AS A MATTER OF LAW BY HOLDING THAT THE HARDSHIP WINTER WILL FACE IF REQUIRED TO BURN HER SOURCES IS IRRELEVANT TO CPL 640.10(2)s UNDUE HARDSHIP ANALYSIS. Separate and apart from the fact that it violates New Yorks public policy, the subpoena should be quashed because it imposes an undue hardship on Winter. Under CPL 640.10(2), even if a witnesss testimony is material and necessary to an out-of-state criminal proceeding, a subpoena may still be denied if it would cause undue hardship to the witness to be compelled to attend and testify in the prosecution or a grand jury investigation in the other state. And although the 46

undue hardship analysis ultimately depends on the facts of each case, see Codey, 82 N.Y.2d at 530-531, the Appellate Division has held that it may include any familial, monetary, or job-related hardships. Tran v. Kwok Bun Lee, 29 A.D.3d 88, 93 (1st Dept 2006). The majority below recognized as much. A. 5-6. But it then assertedwithout explanationthat undue hardship does not involve an analysis of the potential consequences if [Winter] exercises privilege in Colorado. A. 5. That was an error of law that warrants reversal. The majority cited no case for its categorical refusal to consider the harm to Winters career if she were forced to reveal her confidential sources. But there is one to the contrary. In Michigan v. Marcy, 283 N.W.2d 754, 755-756 (Mich. Ct. App. 1979), the Delaware Attorney General sought testimony under the Uniform Act from a Michigan-licensed polygraph examiner regarding a confession he allegedly obtained from a client. The Michigan Court of Appeals observed that the polygraph examiners testimony was privileged under Michigans unique polygrapher-privilege statute, which represent[ed] a declaration by the Legislature of the policy of the State of Michigan, a policy which the courts of this state have a duty to enforce. Id. at 757. Moreover, the Michigan court recognized that granting the requested subpoena would put the polygrapher in the unenviable position of los[ing] his polygraphers license if he testified or being subject to a contempt charge if he refused. Id. at 757 n.3. Requiring the polygrapher to

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decide whether to lose his liberty or to risk losing his livelihood therefore would most certainly work a hardship upon him, a factor which militate[d] against granting the petition. Id. Winter faces the exact same dilemma as the polygrapher in Marcy. Her Supreme Court affidavit statedwithout contradictionthat she relies on confidential sources for her livelihood and that revealing her sources would destroy her career as an investigative journalist. R. 336, 339. And Winters fears about the effect revealing her sources would have on her career was supported by the similarly uncontradicted affidavit of Mark Feldstein, a professor of investigative journalism with over 20 years in the field. R. 347-348, 357. Requiring Winter to decide whether to face a contempt sanction and lose her liberty or reveal her sources and lose her livelihood is undoubtedly a hardship on her. And regardless of whether Winter will ultimately be forced to testify, just being targeted by an active subpoena for confidential sources imposes a significant hardship on her. As Feldstein explained, the mere existence of subpoenas like those allowed by the orders below deters would-be sources from coming forward and sharing news of great significance and sensitivity. R. 357. The Appellate Division erred by categorically refusing to consider these hardships in its analysis. The best that can be said for the opinion below is that it assumes that Winter is being compelled only to testify, not burn her sources. A. 5-6. But that is wrong

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twice over. First, in focusing only on the requirement that Winter testify, the Appellate Division majority forgot that the subpoena also calls for Winter to produce her notes from her conversations with her confidential sources. R. 878. Thus, even if the majority could assumeagainst all the evidencethat Winter might not have to testify about her confidential sources, it would still need to take into account the hardship caused by Winter producing the notes of her conversations with her confidential sources. And even restricted to Winters anticipated testimony, the only testimony from Winter that might conceivably be material or necessary to any topic in the Colorado proceedings is the identity of her confidential sources. A. 15, 20-21; see also R. 65 (identifying the source of the information in Jana Winters article as the reason Winter has become a material and necessary witness in this case). Holmes cannot use Winters ability to identify her confidential sources to satisfy the material and necessary prongs of CPL 640.10(2) and then dismiss the consequences of Winter doing just that when it comes to the undue hardship prong of the same statute. Indeed, this Court rejected similar arguments in Beach. There, like here, the party seeking the reporters testimony claimed that the reporters motion to quash a grand jury subpoena pursuant to the Shield Law was premature because the reporter had yet to testify and had yet to produce his notes from his conversations

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with those sources. 62 N.Y.2d at 247. This Court disagreed. First, it held that the motion to quash was not premature insofar as the subpoena demanded that [the reporter] produce his notes, records, and other physical materials that may be privileged under the Shield Law. Id. at 248. Second, the Court held that although a motion to quash a grand jury subpoena is usually premature before the witness has been asked a question that calls for privileged information, the motion was not premature in the reporters case, becauselike herethe entire focus of the Grand Jurys inquiry would be on the identity of [the reporters] confidential source and other information that [the reporter] obtained in the course of his journalistic activities. Id. There was no need for the reporter to go through the formality of appearing before the Grand Jury before the Court ruled on the privileges applicability. Id. at 248-249. The same is true here. Compelling Winter to appear before the Colorado District Court and turn over notes of her conversations with her sources imposes a hardship on her, regardless of whether Winter is forced to testify about the same topics. See id. at 248. Moreover, because the only reason Winter has been asked to testify in Colorado is to reveal her sources, there would be no point to forcing her to appear merely to give her name, address, and occupation before refusing to answer any questions. Id. at 248-249. Indeed, the harm to Winter here would be even greater than the harm to the reporter in Beach. In Beach, the requesting

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partys arguments went only to the timing of when the court would resolve the reporters objections. The District Attorney claimed the Shield Law analysis should take place after the reporter was asked a question calling for privileged information, whereas the reporter claimed that would be a pointless process given that the only thing of substance the prosecutor intended to ask was who the reporters source was. This Court resolved that procedural question in favor of the reporter in Beach. Here, far more is at stake. Unless this Court passes on Winters claims regarding public policy now, it never will. Once Winter is compelled to travel to Colorado and testify, it will be too late for this Court to address whether [Winter] is protected by the Shield Law and the public policy embodied in it. A. 20 (Saxe, J., dissenting); see also supra 38-39. But the majoritys refusal to consider the burden on Winter if she is forced burn her sources conflicts with more than just precedent; it upsets common sense as well. The Appellate Division majority seems to have accepted that if Fox News had threatened to fire Winter for being away from work to testify in Colorado, that would qualify as an undue hardship. A. 5. But the majority categorically refused to consider that forcing Winter to testify about her confidential sources would destroy her reputation and thus her career as an investigative journalista more severe hardship than just being fired for absenteeism. If, as the majority appeared to agree, undue hardship includes any * * * job-related hardships, A. 5, surely

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the end of Winters career as a journalist qualifies. As the dissent below accurately observed, [n]othing in CPL 640.10(2) limits the concept of undue hardship to the unpleasantness or costs of travel. A. 23. In artificially narrowing the relevant burdens, the Appellate Division majority erred as a matter of law.

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CONCLUSION
For the foregoing reasons, the Appellate Division's order should be reversed and the subpoena quashed. In the alternative, the Appellate Division's order should be reversed and the case remitted for proper consideration of whether the subpoena imposes an "undue hardship" on Winter. Respectfully submitted,
HOGAN LOVELLS US

LLP

By:
CHRISTOPHER T. HANDMAN* SEAN MAROTTA

555 Thirteenth Street, N.W. Washington, D.C. 20004 (202) 637-5791 chris.handman@hoganlovells.com
DORI ANN HANS WIRTH THERESA M. HOUSE NATHANIEL S. BOYER BENJAMIN A. FLEMING

875 Third Avenue New York, New York 10022 (212) 918-3000 dori.hanswirth@hoganlovells.com

Counsel for Respondent-Appellant Jana Winter

* Admitted pro hac vice

Dated: September 9,2013

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