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IP/Entertainment Case Law Updates

Home Box Office, Inc. v. Laster

New York’s Shield Law, which protects unpublished news materials from discovery, applies to outtake footage filmed in course of shooting HBO documentary Rock and a Hard Place, produced by and starring Dwayne “The Rock” Johnson.

HBO released a documentary in 2017 titled Rock and a Hard Place, which chronicled a rehabilitative six-month “bootcamp” program in Miami-Dade County, Florida, that incarcerated youths are permitted to complete in lieu of a harsher prison sentence. The documentary was produced by wrestler and actor Dwayne “The Rock” Johnson, who also appears in the program and interacts with the youths. 

Christy Laster was a correctional officer at the program at the time HBO filmed the documentary and is currently a defendant in a criminal action pending in the Circuit Court of Miami-Dade County, Florida, where she faces charges that include bribery, grand theft and extortion. In March 2019, Laster served HBO with a subpoena seeking the production of unreleased outtake footage filmed during the course of shooting the documentary. Laster claimed that HBO’s outtakes contained footage that was highly material and necessary to her defense of reasonable doubt in the criminal proceeding. Through a special proceeding in New York state court, HBO moved to quash the subpoena, contending that the outtake footage that Laster sought was guarded by New York’s Shield Law, which protects unpublished news materials that would otherwise be the proper subject of discovery. 

In granting HBO’s motion to quash, the court explained that the Shield Law “clearly applies” because documentary filmmakers have been deemed journalists entitled to the privilege. Moreover, the court rejected Laster’s argument that the involvement of Johnson in the project rendered it a “celebrity reality TV show” incapable of being classified as a documentary. Noting that there is “no authority for the notion that the mere involvement of a celebrity in a project renders it somehow incapable of being classified as a documentary, or that a celebrity known for other endeavors cannot be deemed a ‘journalist’ under the statute,” the court reiterated that the Shield Law’s very broad definition of “professional journalist” encompassed anyone involved in news gathering. The court noted that “even were the project more entertainment-focused, the broad definition would still likely apply as long as one of the purposes of the project was disseminating news to the public about the youth incarceration program.” 

The court explained that the subpoenaed outtake footage was subject to a “qualified privilege” under the statute applicable to news materials that are “not obtained or received in confidence.” Under the qualified privilege, the party seeking production must establish that the materials are (1) “highly material and relevant”; (2) “critical or necessary to the maintenance of a party’s claim, defense or proof of an issue material thereto”; and (3) “not obtainable from any alternative source.” 

With respect to the first prong, the court explained that this element has been strictly construed to protect undue interference with the work of journalists, notwithstanding that a criminal defendant’s “interest in non-confidential material weighs heavy.” Here, the court found dispositive that Laster could not identify whether the outtakes contained any footage exonerating her because the outtakes comprised hundreds of hours of footage, most of which had nothing to do with Laster’s criminal proceeding. Laster’s evidentiary showing, the court explained, “does not indicate that any specific footage exonerating [her] is included in the outtakes; it is merely speculation about what may have been picked up by [HBO’s] cameras. Since Respondent does not know what is actually contained in the outtakes, she cannot factually assert that the footage is highly material and relevant to her defense.”

The second prong—whether the news sought was “critical or necessary”—requires a defendant to show that her defense “virtually rises or falls with the admission or exclusion of the proffered evidence.” Here, Laster had not shown that the documentary outtakes were the only way to establish her defense of reasonable doubt, again, in large part because Laster did not know what the outtakes actually captured and therefore “cannot contend that her defense ‘rises or falls’ on the basis of footage that may not even exist.”

With respect to the third and final prong, the court noted that Laster had already deposed many cadets and officers of the bootcamp program to discuss her actions at the program and whether she had followed proper procedures—witnesses that presumably would be available to testify at trial—finding that the documentary outtakes would merely be cumulative, or used to bolster witness credibility. That, the court explained, would be “an improper use under the Shield Law.”

As Laster could not satisfy any of the three prongs of the qualified immunity consideration, all of which were necessary for her to establish, the court granted HBO’s motion to quash the subpoena in its entirety.

Summary prepared by Wook Hwang and Sara Slavin