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2 YEARS

Ken Burns Wins Fight Against New York City Over 'Central Park Five' Research

A judge quashes a subpoena on outtakes, ruling that the filmmakers were independent, and that the city has failed to demonstrate relevancy and the unavailability of information through alternative sources.

Ken Burns Headshot - P 2012
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Ken Burns

Ken Burns and other filmmakers of the Central Park Five have successfully quashed a subpoena that demanded notes and outtakes from the documentary film.

The Central Park Five, from Florentine Films, tells the tale of the five wronged men convicted in an infamous 1989 rape of a Central Park jogger. The men were set free after another man in an upstate prison confessed to the crime and provided DNA that exonerated the five.

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Eight years ago, these freed men filed a $50 million lawsuit against New York City. The plaintiffs claim their confessions were coerced and accuse law enforcement of misconduct.

The city is still defending the lawsuit and sought the documentary's outtakes to support its arguments that authorities were acting in good faith and relying on the best information available at the time.

But on Tuesday, a New York federal judge wouldn't allow the city's prying.

Florentine Films argued that the subpoenaed material, consisting of non-confidential news-gathering materials, was protected by New York's Shield Law.

U.S. District Judge Ronald Ellis accepts that a reporter has a qualified evidentiary privilege for information gathered in the course of a journalistic investigation and says that "any discussion of the reporter's privilege begins with an inquiry into whether a journalist can first establish entitlement to the privilege by demonstrating the independence of her journalistic process."

The independence standard isn't necessarily an easy one. Two years ago, filmmaker Joseph Berlinger failed in this regard in an attempt 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. At the time, the ruling disappointed documentarian groups and other supporters like the WGA.

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Judge Ellis acknowledges the Berlinger precedent, but says that in this instance, Florentine has established its independence, rejecting various arguments from city attorneys.

For example, the city asserted that the filmmakers had a point of view in favor of the plaintiffs, that they made statements that the purpose of the film was to encourage a settlement, and that they received assistance from the plaintiffs in making the film. 

In response, the judge says that having a point of view doesn't resolve the question of whether the filmmakers were independent, that the city mischaracterized the filmmakers' statements about encouraging a settlement (Ken Burns said he wanted to "make a difference" and that having a theatrical release would amplify the pressure on the city), and that merely acknowledging and crediting the plaintiffs for their help "reveals little about the kinds of contributions made, substantive, or otherwise."

Just as importantly, Judge Ellis finds that New York City has failed to make a sufficient showing that the information being sought was of likely relevance and not reasonably available from another source.

Judge Ellis concludes, "In sum, Defendants have failed to present this Court with 'a concern so compelling as to override the precious rights of freedom of speech and the press' the reporter's privilege seeks to ensure."

Florentine Films was represented by John Siegel at Baker & Hostetler.

“Documentary filmmakers gather and disseminate information about significant social and political issues," says Michael C. Donaldson, an attorney who filed an amicus brief in the case on behalf of the International Documentary Association, NAMAC and Film Independent.

Donaldson adds, "Through their films, they uncover new information, advocate action, and initiate public debate where none had previously existed. Preservation of the Journalistic Privilege for documentary filmmakers in spite of how they initially find out about a story and in spite of how passionately they advocate for their subjects is essential to documentarians being able to work effectively."

Here's the full decision:

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