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Lee v. Dep't of Justice

November 16, 2005

WEN HO LEE, ET AL., PLAINTIFFS,
v.
DEPARTMENT OF JUSTICE, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge

MEMORANDUM OPINION

The Court considers Plaintiff Wen Ho Lee's request to hold Walter Pincus, a Pulitzer Prize--winning reporter for The Washington Post and a non-party to this lawsuit, in civil contempt. In the underlying action, Dr. Lee accuses various federal agencies of violating his rights under the Privacy Act of 1974, 5 U.S.C. § 552a (2000), by "leaking" information about him to the news media in order to cover up their own security failures at Los Alamos National Laboratory. Mr. Pincus is one of six reporters to whom Dr. Lee issued deposition subpoenas. On June 29, 2004, this Court granted Dr. Lee's motion to compel further deposition testimony from Mr. Pincus after Mr. Pincus refused to answer questions concerning the identity of his sources. Although Mr. Pincus appeared for a second deposition, he continued to refuse to answer questions about the identity of his confidential sources, asserting that such information was protected by a "reporter's privilege." Dr. Lee subsequently filed an Application for an Order to Show Cause Why Non-Party Journalist Walter Pincus Should Not Be Held in Civil Contempt ("Pl.'s App."), which this Court granted on January 4, 2005.

After careful consideration of the parties' briefs, oral arguments, and the entire record, this Court finds that the information that Mr. Pincus refuses to disclose is not protected by a reporter's privilege under the First Amendment or the common law. As there is clear and convincing evidence that Mr. Pincus refused to provide answers to deposition questions concerning the identity of his sources despite this Court's June 29, 2004, Order to do so, Mr. Pincus will be held in civil contempt.

I. BACKGROUND

A. The Investigation

Dr. Wen Ho Lee, a scientist who was employed by the Department of Energy ("DOE"), was investigated by the Federal Bureau of Investigation ("FBI") and the DOE on suspicion of espionage on behalf of the People's Republic of China from 1996 to 1999. Lee v. Dep't of Justice, 413 F.3d 53, 55 (D.C. Cir.), reh'g en banc denied, 2005 WL 2874940 (D.C. Cir. Nov. 2, 2005). The criminal investigation led to Dr. Lee's imprisonment in solitary confinement for nine months in 1999. Pl.'s App. at 3. The Government never sought to prosecute Dr. Lee for espionage, however, and in December 1999 Dr. Lee was indicted on 59 counts of mishandling computer files at Los Alamos National Laboratory. See Lee, 413 F.3d at 55. Subsequently, the Government withdrew 58 counts, Dr. Lee pled guilty to one count of mishandling computer files, and Dr. Lee was sentenced to time served.*fn1 Id.

The Lee investigation was first reported in The Wall Street Journal on January 7, 1999, and then by Mr. Pincus in The Washington Post on February 17, 1999. Id. On March 6, 1999, The New York Times published an article concerning the investigation of a Chinese-American computer scientist at Los Alamos, but the article did not identify Dr. Lee by name. Id. However, on March 9, 1999, both The New York Times and The Washington Post, in another article authored by Mr. Pincus, identified Dr. Lee by name and discussed details of the investigation in reliance on numerous anonymous Government sources. Pl.'s App. at 6. Journalists from The Los Angeles Times, the Cable News Network ("CNN"), the Associated Press, and various other media outlets also reported on the Lee investigation, similarly relying on information from anonymous Government sources. Id. Once the Government's investigation shifted from charges of espionage to mishandling of computer files, both The New York Times and CNN published articles citing anonymous Government sources to support allegations that Dr. Lee had mishandled important computer codes for nuclear weapons by downloading them to an unsecured computer. Id. at 7.

B. The Privacy Act Lawsuit

On December 20, 1999, Dr. Lee brought suit against the United States Department of Justice ("DOJ"), the DOE, and the FBI, alleging that each defendant had improperly disclosed personal information about him and the investigation in violation of the Privacy Act.*fn2 Id. at 4.The heart of Dr. Lee's complaint is that "in connection with their investigations of suspected espionage at Los Alamos National Laboratory and a simultaneous public relations campaign to ameliorate damaging publicity about security lapses, the defendant agencies disclosed information pertaining to [him] by name, without obtaining his consent or assuring its accuracy, to persons not authorized to receive it, namely the news media." Lee v. Dep't of Justice, 287 F. Supp. 2d 15, 16-17 (D.D.C. 2003) (Jackson, J.) ("Discovery Order"). Dr. Lee alleges that employees of the defendant agencies illegally leaked information to the press concerning his and his wife's employment histories, their financial transactions, details about their trips to Hong Kong and China, details concerning the Government investigation and interrogation, and purported results from polygraph tests. Lee, 413 F.3d at 56. He has requested damages in the amount of $1,000 per Privacy Act violation in addition to reasonable attorney's fees and costs. Id.

C. Dr. Lee's Discovery Efforts

Dr. Lee's Privacy Act lawsuit was stayed during his criminal case. On July 31, 2001, this Court entered an order permitting unrestricted discovery. Dr. Lee made at least 420 written discovery requests to the Government defendants - 295 requests for production, 74 special interrogatories, and 51 requests for admission. Pl.'s App. at 9. However, Dr. Lee "was largely rebuffed by assertions of law enforcement privilege and learned nothing identifying the source of the leaks." Lee, 413 F.3d at 56. In October 2001, Dr. Lee began deposing Government officials whom he identified as likely to have relevant information based on the Government's responses to his written discovery requests. He deposed six employees from the DOE,*fn3 six officials from the DOJ*fn4 and eight FBI officials.*fn5 Id. Despite Dr. Lee's extensive written discovery requests and focused depositions of Government officials likely to have relevant knowledge, he was unable to obtain information concerning the source of the leaks. Id.

In August of 2002, Dr. Lee issued subpoenas to journalists James Risen and Jeff Gerth of The New York Times, Robert Drogin of The Los Angeles Times, H. Josef Hebert of the Associated Press, and Pierre Thomas of CNN seeking testimony and documents concerning the identity of the leakers. Id. Each of these journalists filed motions to quash their subpoenas on the grounds of a reporter's privilege to refuse to reveal confidential news sources. Discovery Order, 287 F. Supp. 2d at 17. On October 9, 2003, Judge Thomas Penfield Jackson issued an order denying each of the five journalists' motions to quash and ordering them to sit for depositions and to "truthfully answer questions as to the identity of any officer or agent of defendants . . . who provided information to them directly about Wen Ho Lee, and as to the nature of the information so provided." Id. at 25.

In rejecting the journalists' assertions of privilege, the Court relied on the D.C. Circuit's decision in Zerilli v. Smith, 656 F.2d 705 (D.C. Cir. 1981), which "laid out guidelines for balancing First Amendment interests with a litigant's need for information when a plaintiff seeks to subpoena a non-party journalist in the context of a civil action." Lee, 413 F.3d at 56-57. Zerilli recognized "a limited privilege upon which a reporter might withhold testimony on First Amendment grounds if it would compromise a confidential news source." Discovery Order, 287 F. Supp. 2d at 18. However, a plaintiff can overcome this qualified privilege and compel a journalist to reveal the identity of his or her confidential sources if (1) the information sought goes "to the heart of" the plaintiff's case and (2) the plaintiff has exhausted "every reasonable alternative source of information" before seeking testimony from the journalist(s). Zerilli, 656 F.2d at 713; cf. Lee v. Dep't of Justice, No. 04-5301, 2005 WL 2874940, at *2-3 (D.C. Cir. Nov. 2, 2005) (Tatel and Garland, JJ., dissenting from the denial of rehearing en banc) (arguing for a different interpretation of Zerilli) ("Lee (Denial of Rehearing)"). Judge Jackson determined that Dr. Lee had clearly met both Zerilli requirements to overcome the journalists' qualified privilege, and that at this stage in the litigation "only [the journalists] can testify as to whether defendants were the sources for the various news stories." Discovery Order, 287 F. Supp. 2d at 22.

Despite Judge Jackson's order, the journalists continued to assert a reporter's privilege and refused to answer any questions concerning the identities of their sources when they appeared for their second depositions in December 2003 and January 2004. Accordingly, on February 13, 2004, Dr. Lee filed an application for an order to show cause why the journalists should not be held in civil contempt of the Discovery Order. Judge Jackson issued an order granting Dr. Lee's application on June 29, 2004, and a show cause hearing was held on August 18, 2004. That same day, Judge Jackson issued a twelve-page memorandum opinion and order holding each of the journalists in civil contempt for their failures to comply with the Discovery Order. See Lee v. Dep't of Justice, 327 F. Supp. 2d 26, 27-28 (D.D.C. 2004) (Jackson, J.) ("Contempt Order").*fn6 The journalists appealed Judge Jackson's Discovery and Contempt Orders and the Court of Appeals upheld them in Lee v. Department of Justice,413 F.3d 53 (D.C. Cir. 2005).*fn7

D. Dr. Lee's Efforts to Seek Testimony from Mr. Pincus

Mr. Pincus authored at least four articles concerning the Government's investigation of Dr. Lee.*fn8 Response of Walter Pincus to the Order to Show Cause ("Pincus Response") at 8-10. In late 2002, Dr. Lee served a deposition subpoena on Mr. Pincus, that, like the subpoenas issued to the other journalists, requested testimony and documents concerning the source or sources of the Government defendants' leaks. Unlike the other journalists, Mr. Pincus did not move to quash his deposition subpoena. Accordingly, he was not among the journalists covered by Judge Jackson's October 9, 2003, Discovery Order.*fn9

Mr. Pincus appeared for his first deposition on January 29, 2004. As had the other journalists, Mr. Pincus refused to answer any questions concerning the identity of the individual(s) who provided information to him about Dr. Lee, invoking the "reporter's privilege" 117 times. Pl.'s App. at 17. Accordingly, on February 13, 2004, when Dr. Lee filed an application for an order to show cause why the other journalists should not be held in civil contempt, he simultaneously filed a motion to compel further deposition testimony from Mr. Pincus. Id. Judge Jackson's June 29, 2004, Order, which ordered the other journalists to show cause why they should not be held in contempt, granted Dr. Lee's motion to compel further deposition testimony from Mr. Pincus "essentially for the reasons stated in the Court's October 9, 2003, Memorandum & Order." Lee v. Dep't of Justice,Civil Action No. 99-3380 (TPJ), at 1 (D.D.C. June 29, 2004) [Dkt. No. 134].*fn10

Mr. Pincus's second deposition was subsequently scheduled for August 30, 2004. For that reason, he was not included in the contempt hearing concerning the other journalists on August 18, 2005, and Judge Jackson's Contempt Order did not apply to him. See Contempt Order, 327 F. Supp. 2d at 28 n.1 ("Walter Pincus of The Washington Post (who became subject to the October 9th Order as of June 29, 2004) is not presently before the Court, having yet to be deposed in accordance with the October 9th Order.").

When Mr. Pincus appeared for his second deposition on August 30, 2004, he again refused to answer questions concerning the identity of the sources who directly provided information to him about Dr. Lee and the Lee investigation. Again, he invoked the "reporter's privilege" approximately 100 times. See Pl.'s App. at Exh. 24 (Depo. Tr. of W. Pincus).

On December 17, 2004, Dr. Lee filed an Application for an Order to Show Cause why Mr. Pincus should not be held in civil contempt.*fn11

II. LEGAL STANDARDS

This Court has both an "inherent and a statutory power to enforce compliance with its orders through the remedy of civil contempt." SEC v. Bilzerian, 112 F. Supp. 2d 12, 16 (D.D.C. 2000) (citing Shillitani v. United States, 384 U.S. 364, 370 (1966)). A person is in contempt of court when he "violates a specific court order requiring him to perform or refrain from performing a particular act or acts with knowledge of that order." SEC v. Bankers Alliance Corp., 881 F. Supp. 673, 678 (D.D.C. 1995) (citation omitted); see also NLRB v. Blevins Popcorn Co., 659 F.2d 1173, 1184 (D.C. Cir. 1981). The contemnor's intent is immaterial; the Court need not determine whether a failure to comply with its order was either willful or intentional. Blevins Popcorn Co., 659 F.2d at 1184; see also Food Lion, Inc. v. United Food & Commercial Workers Int'l Union, 103 F.3d 1007, 1016-17 (D.C. Cir. 1997). The party seeking a finding of contempt has the burden of demonstrating, by clear and convincing evidence, that: (1) the Court's order ...


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