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OCT
3
2 YEARS

Ken Burns Fights New York City Over 'Central Park Five' Subpoena

Lawyers for the city are looking to get their hands on unseen outtakes from the documentary film, including full interviews with the wrongly imprisoned men who are now suing the city.

Ken Burns Headshot - P 2012
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Documentary filmmakers Ken Burns, Sarah Burns and David McMahon are upset that that lawyers for New York City have subpoenaed notes and outtakes from the film, The Central Park Five, which revisits a 1989 rape of a jogger in Central Park and the subsequent imprisonment of five young black men for the crime.

The incriminating two-hour film tells the tale of the five wronged men with in-depth interviews. The five men were each convicted, but later set free, after another man in upstate prison, confessed to the crime and provided DNA that exonerated the Central Park Five.

Since their release, the five men have been fighting the city in a $50 million federal lawsuit. The plaintiffs claim their confessions were coerced and accuse law enforcement of misconduct.

The Central Park Five: Cannes Review

Defending the claims, the city is now pursuing unseen footage that might provide backing to arguments that authorities were relying on the best information available at the time and acting in good faith.

But in a collective statement today, the directors of The Central Park Five say they will fight the subpoenas because more is at stake.

"As you can imagine, we strongly believe in the media's right to investigate and report on these and other issues and that this process, including the reporting notes and outtakes, come under the New York reporters' shield law," the filmmakers say. "The government has an exacting burden before it can obtain these and other materials."

Florentine Films has retained a lawyer, John Siegel, who has also responded to the city government's attempts to procure footage.

In a letter to the city's law department, he writes, "As you can imagine, we strongly believe in the media's right to investigate and report on these and other issues and that this process, including the reporting notes and outtakes, come under the New York reporters' shield law. The government has an exacting burden before it can obtain these and other materials."

Siegel says the the subpoena was "overbroad."

He adds, "Florentine Films has carefully considered the subpoena and is sensitive to the important work performed by your office and the issues involved in the case.  But, due to a deeply held belief that its future ability to make films about matters of public interest would be compromised by complying with the subpoena, Florentine Films respectfully intends to invoke its constitutional and statutory rights and withhold the unpublished materials sought by your office."

This isn't the first time that a documentary film has been caught in the cross-hairs of ongoing litigation. Two years ago, filmmaker Joseph Berlinger attempted to use the First Amendment and invoke journalistic privilege to prevent outtake footage from his documentary Crude from falling into the hands of Chevron, which subpoenaed the material to aid the company's defense of litigation in Ecuador. The 2nd Circuit Court of Appeals pointed to Berlinger's relationship with the subjects of the film --they approached him and pitched the project -- and ruled that he "failed to carry his burden of showing that he collected information for the purpose of independent reporting and commentary."

Perhaps in an effort to emphasize independence from the film subjects, in his letter to city lawyers, Siegal also explained that Florentine Films has had no financial relationship with those interviewed in the film.

Berlinger says he hopes Burns prevails.

"I wish Ken Burns good luck in his case,," he says. "Because New York State reporters' shield laws are stronger than federal shield laws, I think he has a good chance of a better outcome than I experienced in federal court."

E-mail: eriq.gardner@thr.com; Twitter: @eriqgardner