Cer aneun 10 u 2 13 14 15 16 7 18 19 20 21 22 23 24 25 26 27 28 Roger Myers (SBN 146164) roger.myers@bryancave.com BRYAN CAVE LLP 3 Embareadero Center, 7" Floor San Francisco, CA 94111 ‘Telephone: (415) 675-3400 Facsimile: (415) 675-3434 Naney Franeo (SBN 294856) naney.franco@bryancave.com BRYAN CAVE LLP 120 Broadway, Suite 300 Santa Monica, CA 90401 Telephone: (310) 576-2100 Attomeys for the Non-Paity Journalist Petitioner Alex Halperin SUPERIOR COURT OF CALIFORNIA COUNTY OF LOS ANGELES UNLIMITED JURISDICTION DOOMA WENDSCHUH, LLC, Plaintiff, vs. EBBU, LLC, Defendant. In the Matter of the Arbitration Between MICHAEL WENDSCHUH and DOOMA WENDSCHUH, LLC, Claimants, vs. EBBU, LLC and JONATHAN COOPER, Respondents. ‘No California Case Number Provided JAMS Arbitration Pending in Colorado No Number Provided OBJECTIONS OF NON-PARTY JOURNALIST ALEX HALPERIN TO PLAINTIFFS’ DEPOSITION SUBPOENA. AND REQUEST FOR THE PRODUCTION OF DOCUMENTS ‘OBJECTIONS OF NON-PARTY JOURNALIST ALEX HALPERIN TO SUBPOENAul 12 13 14 15 16 7 18 19 20 2 22 23 24 25 26 27 28 Pursuant to Code of Civil Procedure § 2025.460 and Monarch Healthcare v. Superior Court, 78 Cal. App. 4th 1282 (2000), non-party journalist Alex Halperin objects and responds to the subpoena of Claimants Michael Wendschuh and Dooma Wendschuh, LLC, commanding Halperin to ‘appear for a deposition and produce documents in the above-captioned proceeding on April 19, 2017. A. Production of Documents Halperin, who lives in Los Angeles, wrote one article that was published on Pando.com that is responsive to the subpoena’s demand for documents. A copy of that article as published on Pando.com is attached as Exhibit A to these objections, All other documents demanded by the subpoena constitute unpublished information, to which Halperin objects on the following grounds: 1, The subpoena seeks “unpublished information” protected by the California reporter's | shield law enshrined in Article I, § 2(b) of the California Constitution and codified at Evidence Code § 1070(a). Under the shield law, a “freelance journalist” such as Halperin, People v. Von Villas, 10 Cal. App. 4th 201, 231 2d Dist. 1992), has the right not to disclose any and all information “not disseminated to the publie by the person from whom disclosure is sought, whether or not related information has been disseminated” and “whether contained in source material or in memory.” Playboy Enterprises, Inc. v. Superior Court, 154 Cal. App. 3d 14, 21 (2d Dist. 1984) (quoting Cal Const, Art. I, § 2(b)). As used in the shield law, “unpublished information’... includes, but is not limited to, all notes, outtakes, photographs, tapes or other data of whatever sort not itself disseminated to the public through a medium of communication, whether or not published information based upon or related to such material has been disseminated."” Id, (quoting same) (emphasis added by the Second District), The shield law thus “expressly and unequivocally refers to the physical records constituting a newsperson’s source material.” 1d. The shield law protects non- confidential as well as confidential unpublished information and, in a civil case, is “absolute.” New York Times Co. v. Superior Court, 51 Cal. 34 453, 456, 461 (1990); see also Miller v, Stiperior Court, 21 Cal. 4th 883, 890, 897 (1999) 2. The subpoena seeks unpublished information and documents protected by the constitutional reporter's privilege under the First Amendment and California Constitution, which protects “online joumalists” from “compulsory disclosure” of resource materials, O'Grady v. eee 1 ‘OBJECTIONS OF NON-PARTY JOURNALIST ALEX HALPERIN TO SUBPOENASoarxanuneun i 12 13 14 15 16 7 18 19 20 a 22 23 24 25 26 27 28 Superior Court, 139 Cal. App. 4th 1423, 1466 (2006), irrespective of whether those materials were provided under a promise of confidentiality, Shoen v. Shoen, 5 F.3d 1289, 1292-95 (9th Cir. 1993), ‘where, as here, the subpoenaing party cannot meet the test necessary to overcome the privilege. Mitchell v, Superior Court, 37 Cal. 3d 268, 279-84 (1984); O'Grady, 139 Cal. App. 4th at 1466-80. B. Deposition Testimony 1 “Unpublished information” as used in the shield law is defined broadly and “encompasses all information acquired by the newsman in the course of his professional activities which he has not disseminated to the public.” Hammarley v. Superior Court, 89 Cal. App. 3d 388, 397-98 (1979).! This includes, for example, the identity of any “Ebbu employee ... speaking on the condition of confidentiality,” the “concemed citizen” who provided information, the person | “arranging the leak” and the person who provided a copy of the recording, to the extent Halperin even knows who they may be, as the identities of these sources were not published in the article, McGarry | v. Univ. of San Diego, 154 Cal, App. 4th 97, 121 (2007) (“reporters could not be compelled to reveal the sources for their article” on whose statements plaintif’s claim was based), as well as Halperin’s percipient observations. Delaney v, Superior Court, 50 Cal. 3d 785, 799-800 (1990).? 2. The “discovery of [Halperin’s] sources [and other unpublished information] is also barred on this record by the conditional constitutional privilege against compulsory disclosure of confidential sources” and other unpublished information O’Grady, 139 Cal. App. 4th at 1432, 1466- 80; accord Mitchell, 37 Cal. 3d at 279-84,° Entire Subpoena 1, The subpoena fails to comply with the requirements for a subpoena issued by a court in this state for a proceeding pending in another state set forth in Civil Procedure §§ 2029.300- 2029.350 in that it does not “bear the ... case number of the out-of-state case to which it relates,” id., ' Disapproved on other grounds by Delaney v, Superior Court, 50 Cal. 3d 785, 813 0.29 (1990). ? In Delaney, the court found that the protection offered by the shield law was overcome by the criminal defendant's showing that nondisclosure of the information sought would deprive him of his federal constitutional right to a fair trial. However, no such exception to the absolute nature of the shield law applies in civil matters like this one. New York Times, 51 Cal. 3d at 456, 461. 3 To the extent Colorado law is implicated, the production of documents and deposition testimony about unpublished information is also barred under Colorado’s Press Shield Law, C.R.S. § 13-90-119. ee 2) (OBJECTIONS OF NON-PARTY JOURNALIST ALEX HALPERIN TO SUBPOENASew ranunkun uw 12 1B 14 15 16 7 18 19 20 21 22 23 24 28 26 27 28 §§ 2025.300(c)(3) and 2029.350(b)(3), nor does it reflect that the “foreign subpoena” required by these statutes, id. §§ 2029.300(a) and 2029.350(a), was ever issued because arbitration subpoena whose terms the California subpoena incorporates does not reflect that it was “issued under authority of court of record” in Colorado, as required by Code of Civil Procedure § 2029.200(). 2, Halperin cannot determine whether to exercise his right to object “to the relevanc [or] materiality” of materials to be produced or questions to be asked at the deposition, Code of Civil Procedure § 2025.460(c), because the arbitration is subject to a confidentiality order and he has been told he cannot review pleadings in the arbitration, including the claims asserted in the arbitration, without signing a confidentiality agreement in which he submits to jurisdiction in Colorado, in violation of due process and other rights under the United States and California Constitutions. ‘Dated: March 29, 2017 BRYAN CAVE LLP. ROGER MYERS NANCY FRANCO Attorney for Non-Party Journalist Alex Halperin eee eer eee 3 (OBJECTIONS OF NON-PARTY JOURNALIST ALEX HALPERIN TO SUBPOENA