Hogan Lovells appellate partner successfully argues NY press freedom case

New York’s highest court has issued a decision quashing a subpoena to Fox News reporter Jana Winter to testify as a witness in the Jane Holmes murder proceeding in Colorado. The subpoena called for Winter to reveal her confidential sources. Hogan Lovells appellate partner, Chris Handman, argued the case on 12 November 2013.

In a 4–3 decision, the New York Court of Appeals reversed the Appellate Division and ordered the subpoena quashed. The decision arrived less than a month after oral argument and conclusively determines that Winter will not be required to appear in Colorado any further, nor face the threat of jail time.

The Hogan Lovells team advising Winter was led by litigation partners Dori Ann Hanswirth (New York), Chris Handman (Washington), and Michael Theis (Denver), supported by associates Theresa House, Nathaniel Boyer, Benjamin Fleming, Patsy Wilson (New York), Sean Marotta (Washington), Christopher Murray, Korey Christensen, Toren Evers-Mushovic, and Emily Lyons (Denver).

Winter had been under subpoena to testify about confidential sources relating to her coverage of a movie theatre shooting in Aurora, Colorado, in 2012. She reported that a ‘chilling notebook’ had been sent to the University of Colorado by the defendant James Holmes, citing two unnamed law enforcement officials as her sources. The lower court in New York approved of a subpoena directing Winter to appear and testify in the Colorado case. The Colorado court ordered Winter’s appearance for 3 January 2014.

In representing Winter in the New York Court of Appeals, the Hogan Lovells team maintained that forcing Winter to travel out-of-state for the purpose of revealing her confidential sources violated New York’s clear policy and tradition ‘of providing the utmost protection of freedom of the press’. That policy was evidenced by New York’s Shield Law for journalists, the strongest such law in the nation. The Court of Appeals agreed, finding that ‘safeguarding the anonymity of those who provide information in confidence is perhaps the core principle of New York’s journalistic privilege’. According to the Court of Appeals, this principle represented a ‘New York public policy of the highest order’, and forcing Winter to travel to Colorado to testify ‘would offend our strong public policy’ and ‘the core protection of the Shield Law’.

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