Opinion
04 C 7300.
December 23, 2004
Attorneys for Naser Oric, the defendant in a case pending before the International Criminal Tribunal for the Former Yugoslavia (ICTY), request that I issue a subpoena requiring Sherri Fink, M.D., a physician and author, to produce documents and materials used in the preparation of her book War Hospital. The petition is made pursuant to 28 U.S.C. § 1782(a); Petitioners intend to use the materials in developing Oric's defense before the ICTY. Fink contests this court's jurisdiction to issue the subpoena, challenging the validity of "tag" jurisdiction under § 1782. Fink also asserts a "journalist's privilege," though it is unclear whether she purports to base that privilege in the somewhat tenuous federal common law reporter's privilege or a privilege based on state law. Fink's attorney has requested an opportunity to submit briefing on this issue if I think it necessary, which I do.
In the alternative, Fink requests dismissal for improper venue under 28 U.S.C. § 1391 or transfer of venue pursuant to 28 U.S.C. § 1404(a). While Fink's motion for transfer to the Southern District of New York may have merit, I cannot reach that issue until I have determined that the jurisdiction of this court is proper.
Whether this court has jurisdiction to issue the subpoena pursuant to § 1782 depends in part on whether any relevant privilege is applicable to Fink. See Intel Corp. v. Advanced Micro Devices, Inc., 124 S. Ct. 2466, 2480 (2004) ("[Section] 1782 expressly shields privileged material") (citing S. Rep. No. 1580, 88th Cong., 2d Sess., p. 9 (1964), "[N]o person shall be required under the provisions of [§ 1782] to produce any evidence in violation of an applicable privilege"). However, the Seventh Circuit strictly limited the application of any "reporter's privilege" in a similar case, noting that the First Amendment has little bearing when information demanded under § 1782(a) does not come from a confidential source. McKevitt v. Pallasch, 339 F.3d 530, 533 (7th Cir. 2003) (upholding district court order pursuant to § 1782 that required production of reporters' tape recordings). Therefore, I will enter and stay Oric's request for a brief period in order to allow Fink to submit briefing on the issues of privilege and confidentiality. Given the time-sensitive nature of Oric's request, Fink is ordered to submit a response brief to this court no later than January 14, 2005. Petitioners will have until January 21, 2005 to submit their reply.