IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

)
STEVEN J. HATFILL, M.D., )
)
Plaintiff, ) Case No. 1:03-CV-01793 (RBW)
)
v. )
)
ALBERTO GONZALES )
ATTORNEY GENERAL, et al., )
)
Defendants. )
__________________________________________)

MOTION BY NON-PARTY CBS BROADCASTING INC.

TO QUASH SUBPOENA

Pursuant to Fed. R. Civ. P. 26(c) and 45(c), non-party CBS Broadcasting Inc. (“CBS”),

by its undersigned counsel, hereby moves to quash a Rule 30(b)(6) subpoena issued to it by

Plaintiff in the above-referenced action. For the reasons set forth more fully in the

accompanying Memorandum of Law and the Declaration of Lee Levine submitted herewith, the

subpoena should be quashed.

Pursuant to Local Rule 7(m), we have conferred with counsel for Plaintiff, who has

advised that Plaintiff will oppose this motion.

May 8, 2007 Respectfully submitted,

LEVINE SULLIVAN KOCH & SCHULZ, L.L.P.

By /s/
Lee Levine (DC Bar No. 343095)
Nathan Siegel (DC Bar No. 446253)
Chad R. Bowman (DC Bar No. 484150)
1050 17th Street, N.W., Suite 800
Washington, DC 20036
(202) 508-1100

Attorneys for Non-Party CBS Broadcasting Inc.

 IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

)
STEVEN J. HATFILL, M.D., )
)
Plaintiff, ) Case No. 1:03-CV-01793 (RBW)
)
v. )
)
ATTORNEY GENERAL )
JOHN ASHCROFT, et al., )
)
Defendants. )
__________________________________________)

MEMORANDUM IN SUPPORT OF MOTION BY NON-PARTY

CBS BROADCASTING INC. TO QUASH SUBPOENA

Pursuant to Federal Rules of Civil Procedure 45(c) and 26(c), non-party CBS

Broadcasting Inc. (“CBS”), through undersigned counsel, respectfully submits this memorandum

of law in support of its motion to quash plaintiff’s subpoena to it.

STATEMENT OF FACTS

The general history of press-related discovery in this case is set forth in detail in the

Memoranda of Law filed by other news organizations that have moved to quash subpoenas, and

need not be repeated here. With respect to CBS, Plaintiff originally served a Rule 30(b)(6)

subpoena on CBS in December 2004, and CBS moved to quash that subpoena. See Dk. 56.

Pursuant to an agreement reached with all news organizations involved at the time, the CBS

subpoena was withdrawn and CBS informed Plaintiff that Jim Stewart, a CBS News

correspondent at the time, had knowledge of the anonymous sources quoted in all three of the

CBS News stories identified in the subpoena.

 Subsequently, Mr. Stewart himself was subpoenaed and sat for a four-hour deposition.

Mr. Stewart answered virtually all of Plaintiff’s counsel’s questions, including many about

confidential source practices, see Declaration of Lee Levine (“Levine Decl.”) Exhibit 1 at 1,

10:8-12:15, 29:1-33:21, 36:18-39:9, 208:11-13. He declined to identify his confidential FBI and

Department of Justice sources and invoked the reporter’s privilege recognized by the First

Amendment and federal common law. Id. at 7:2-8:6; 114:8-11, 131:7-15, 138:4-7. Mr. Stewart

also testified that he did not make any notes of conversations with these sources. Id. at 100:21-

101:1, 117:17-19, 125:12-18, 133:4-6. Plaintiff has not, to date, moved to compel any further

testimony from Mr. Stewart.

In November 2006, Mr. Stewart retired from CBS News. Levine Decl. at ¶4; see also

CBS Newsman Jim Stewart to Retire; Veteran Journalist Broke Many Major News Stories

During 37-Year Career, CBSNEWS.COM (Sept. 28, 2006).1 On April 24, 2007 the Rule

30(b)(6) subpoena that is the subject of this Motion was served on counsel for CBS. Levine

Decl. Ex. 2. The subpoena seeks testimony and documents concerning the same three news

broadcasts that were the subject of Mr. Stewart’s deposition. CBS has conducted a search for

documents potentially responsive to the subpoena, but has not found any documents that relate to

any of the confidential sources that were the subject of Mr. Stewart’s testimony. Levine Decl.

at ¶5.

ARGUMENT

Each of the points and authorities set forth in the Memorandum of Law filed on behalf of

The Washington Post, Newsweek and ABC in support of their motion to quash applies equally to

CBS and is hereby incorporated by reference. Moreover, the arguments raised in that

1
Available at http://www.cbsnews.com/stories/2006/09/28/eveningnews/main2049557.shtml
(last visited May 7, 2007).

2
memorandum regarding the inappropriate and duplicative nature of the Rule 30(b)(6) subpoenas

apply with special force to CBS. The CBS subpoena is entirely duplicative of Mr. Stewart’s

deposition. All three of the news reports listed in the present subpoena were reported by Mr.

Stewart, all were the subject of extensive examination at his deposition, and Mr. Stewart testified

that he and only he personally spoke to the anonymous sources quoted in his news reports.

Levine Decl. Ex.1 at 139:19-140:1, 207:12-18; see also id. at 26:2-11, 162:15-19. Moreover,

while subpoenas have sometimes been issued to news organizations, separate and apart from

their reporters, for the purpose of seeking documents identifying confidential sources that might

be solely within the company’s possession, CBS has no such documents. Levine Decl. ¶5.

In addition, CBS notes that the only justification Plaintiff has provided for initiating this

new, duplicative discovery is his claim that he “must” now try to pursue corporate employers for

the same information that was the subject of reporters’ depositions, because corporations are

more likely to provide it. Plaintiff’s Opposition to Defendant’s Motion for Clarification (Dk.

149) at 2. With all due respect, if Plaintiff really believed this proposition, he would have

pursued this discovery during the discovery period, rather than risk waiving the opportunity to do

so now. Plaintiff has been aware from the inception of this case that he might conclude that he

should file motions to compel answers from reporters to questions about the specific identities of

sources. Thus he created a record during the depositions to lay the groundwork for possible

motions to compel, and joined the government in raising that prospect with the Court rather than

simply proceed to motions for summary judgment. Nothing prevented Plaintiff from attempting

to lay a similar groundwork for subsequent litigation against CBS and other news organizations

at that time.

3
 As more fully discussed in the memoranda supporting other motions to quash filed in this

matter, Plaintiff’s belated interest in serving corporate subpoenas at this late date, right after the

Court has ordered the parties to engage in mediation, strongly suggests that his real interest is to

attempt to leverage settlements from news organizations rather than seek discovery. That is not

an appropriate ground for invoking this Court’s processes, and the subpoenas should be quashed.

CONCLUSION

For the foregoing reasons, the subpoena to CBS Broadcasting Inc. should be quashed.

May 8, 2007 LEVINE SULLIVAN KOCH & SCHULZ, L.L.P.

By /s/
Lee Levine (DC Bar No. 343095)
Nathan Siegel (DC Bar No. 446253)
Chad R. Bowman (DC Bar No. 484150)

1050 17th Street, N.W., Suite 800

Washington, DC 20036
(202) 508-1100

Attorneys for CBS Broadcasting Inc.