Plaintiff Brown and Williamson Tobacco Corporation ("BW") has failed to overcome the qualified protection enjoyed by deponents-respondents concerning their newsgathering activities. The outtakes and unpublished materials sought by BW, at least those dealing with the preparation and eventual broadcast of the CBS "60 Minutes" interview, relate directly to the allegation in the underlying Kentucky action that "[s]ince his termination from BW, defendant Wigand has provided both in writing and orally, documents, materials and information acquired by him during and as a result of his employment with BW to CBS television's '60 Minutes' program", and thus, they are "highly material and relevant" (Civil Rights Law § 79-h [c] [i]). Nevertheless, BW has not established that the items sought are "critical or necessary" to the maintenance of the underlying action Civil Rights Law § 79-h [c] [ii]). As the motion court noted, BW already has "ample proof" of the breach of confidentiality agreements in the publicly available tapes of the interview actually broadcast.

BW contends that it needs further documents from CBS to establish the full measure of damages that Wigand has caused BW. However, such a vague assertion cannot establish the "critical or necessary" nature of any of the documents.

Accordingly, we need not reach the issue of whether BW has met the third prong of the test under section 79-h (c) (iii), namely that the unpublished information "is not obtainable from any alternative source" simply because that source is Wigand himself, BW's adversary in the Kentucky litigation, and is, in the assessment of BW, "totally lacking in credibility".

We have considered BW's remaining arguments and find them to be without merit.

Concur — Murphy, P.J., Wallach, Williams and Mazzarelli, JJ.