A federal judge ruled earlier this month that the laws of reporter privilege mean that Walter Isaacson, the author of a popular Steve Jobs biography, doesn’t have to hand over his notes as evidence in a class action suit over alleged e-book price-fixing.
The ruling came after plaintiffs issued a subpoena in May that required Isaacson to hand over his source materials. Their lawyers claim his notes and interview recordings with Jobs will help establish that the late Apple founder brokered a conspiracy with publishers. In their lawsuit, the plaintiffs have already jumped on passages in Isaacon’s biography (such as Jobs saying consumers would “pay  a little more”) to support their case.
Isaacson, a prominent historian and journalist, is willing to authenticate passages in the book. But he invoked the reporter’s privilege and refused to hand over his source material or even a list of Jobs-related documents and recordings. His lawyers then asked U.S. District Judge Denise Cote to quash the subpoena.
On July 20th, Cote agreed that Isaacson did not have to comply with the subpoena. She added, though, that the lawyers could try again if they can pass a legal test that allows the disclosure of journalists’ non-confidential material in some circumstances.
Isaacson’s attorney, Elizabeth McNamara, said in a phone interview that the class-action lawyers faced a high bar to show the “notes are highly relevant and necessary to the case.” She added that none of Isaacson’s taped recordings with Jobs discuss e-book pricing.
Plaintiffs’ lawyer Steven Berman has argued that the reporter’s privilege shouldn’t apply because Jobs didn’t ask Isaacson for confidentiality. He also claims that they can get Jobs’ information on ebooks from other sources.
The dispute comes at a time when the reporter’s privilege has been in the spotlight for the federal government’s effort to knock it down in military cases. A Virginia appeals court, for instance, is preparing to rule on whether the Justice Department can compel a Wall Street Journal reporter to testify in a case against a former CIA officer.
The Second Circuit Court of Appeals, which oversees New York courts, has affirmed the reporter’s privilege numerous times. It recently warned:
“wholesale exposure of press files … would burden the press with heavy costs of subpoena compliance, and could otherwise impair its ability to perform its duties … [it] would risk “the symbolic harm of making journalists appear to be an investigative arm of the judicial system, the government, or private parties.”
The ruling was first reported by Publishers Weekly.
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