Litigation: Is knowing a reporter’s confidential source knowing too much?

The Fifth Amendment may not protect editors and publications who know the identity of confidential sources

During last week’s pilot episode of HBO’s new series “The Newsroom,” star cable news anchor Will McAvoy came face-to-face with a scoop on one of the biggest news stories in recent memory: According to sources unearthed by McAvoy’s brand new senior producer, what appeared to be a run-of-the-mill explosion on an oil rig off the Gulf Coast was actually the beginning of the 2010 Deepwater Horizon oil spill—and was likely not a freak accident, but could be blamed on private industry and lax enforcement of federal regulations. The problem? All of the producer’s sources were confidential. McAvoy thereby found himself in a position all too familiar to editors across the country: Should he rely on his reporter, or did he himself need to know the identities of the sources (who ostensibly had been promised that their names would never be revealed to anyone)?

McAvoy’s dilemma recently played out in the real world at the Detroit Free Press. In a decision issued just three days before “The Newsroom”’s premier, in Convertino v. United States Dep’t of Justice, No. 11-5133, the D. C. Circuit charted the perilous legal landscape that reporters, editors and litigants must navigate when civil discovery intersects with a reporter’s promise to protect anonymous whistleblowers.   

Convertino, who ultimately was acquitted of the charges against him, sued the Attorney General and other DOJ employees in federal court in the District of Columbia for violation of the Privacy Act, 5 U.S.C. §§ 552a et seq., to recover damages for the leak. To prove his case, Convertino needed to show that the leak was made willfully. He subpoenaed the reporter and the Free Press in an effort to identify the leaker. A federal judge in Michigan, where the depositions were to take place, ordered the reporter to testify. The judge also held in abeyance the deposition of the newspaper unless and until Convertino was unable to identify the leaker through the reporter’s deposition. During his deposition, the reporter asserted his Fifth Amendment privilege against self-incrimination to avoid identifying his source. The Michigan judge later approved of the assertion of this privilege, and thus Convertino came back from the reporter’s deposition empty-handed.

In the meantime, back in D.C., the DOJ filed a motion for summary judgment. It argued that Convertino’s claim must fail because it was unlikely that he would ever succeed in his quest to identify the leaker. Convertino cross-moved under Rule 56(f) to pursue discovery from the newspaper, but the district court found that these efforts would be futile and granted summary judgment to the DOJ. 

Convertino’s crusade also teaches publishers and editors a few lessons about whether it is really worth it to know the identity of confidential sources. The Free Press, after all, can only testify about what it knows, and if the reporter never gives up his source to anyone at the publication, it is unlikely that the company could be held responsible. Of course, any newsroom with a tip about misfeasance will need to vet the sourcing in order to evaluate the risk of publishing.

Convertino counsels that the better practice for such vetting may be for the publisher to learn about the source’s credentials and reputation for reliability, rather than learning the source’s name. Asking how the source knows the information, whether the source has been reliable in the past, whether anything the source has ever said has proven to be untrue and whether the reporter has been able to corroborate the source’s information for the present story or for past stories often provides sufficient information to evaluate the legal risk in publishing a story without need for the reporter to reveal the source.

Contributing Author

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Dori Ann Hanswirth

Dori Ann Hanswirth is a partner with Hogan Lovells in the New York office. She handles a wide range of civil litigation and focuses on...

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Contributing Author

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Theresa House

Theresa M. House is an associate with Hogan Lovells in the Litigation, Arbitration, and Employment, Content & Designs, and Media Law Groups in the New...

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