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In Case of Tech Investor Pishevar Reporter Privilege Deemed Overcome By Judge Aaron

By Matthew Russell Lee, Patreon
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SDNY COURTHOUSE, Oct 4 – Tech investor Shervin Pishevar through his lawyers was in the U.S. District Court for the Southern District of New York on February 10 pushing Fast Company journalism Marcus Baram to give up his confidential sources.

  Since it implicated and stands to undermine press freedom, Inner City Press was there. More on Patreon here.

 Now in October, SDNY Magistrate Judge Aaron, in a 9-page order for which PACER charged 90 cents despite a policy of at least orders being free, has ruled "Petitioner has come forward with sworn statements from five individuals in order to show that he has exhausted available sources of information regarding the identity of the Confidential Source. There is no magic number of witnesses who must be pursued in order for a court to determine that the requisite exhaustion has taken place. See Lee v. Dep’t of Justice, 413 F.3d 53, 61 (D.C. Cir. 2005) (referring to “case-specific determination”). After careful consideration of all the record evidence, the Court finds that Petitioner has exhausted reasonable alternative sources of information. Thus, in my discretion, I find that the reporter’s privilege has been overcome and Respondent shall disclose to Petitioner the name and location of his Confidential Source. For the foregoing reasons, Petitioner’s motion is GRANTED and it is hereby ORDERED that Respondent shall, within fourteen (14) days of the date of this Opinion and Order, disclose to Petitioner the name and location of his Confidential Source." We'll have more on this.

  Baram's lawyer Toby Butterfield of Moses & Singer LLP had written, "Dear Judge Aaron: We represent Respondent Marcus Baram in the above-referenced proceeding. In accordance with Your Honor’s February 10, 2020 order [ECF No. 44], we write to explain why even the limited disclosure of the name and location of Mr. Baram’s confidential source implicates Mr. Baram’s right against compelled self-incrimination under the law of the United Kingdom. As explained in detail in the Declaration of Teresa Rosen Peacocke (“Peacocke Declaration”) [ECF No. 16], the privilege against self-incrimination under U.K. law is very broad, and is available whenever a disclosure “might increase the risk of prosecution.” Id., ¶19 (citing Den Norske Bank ASA v Antonatos [1999] Q.B. 271). See also Redfern v. Redfern, [1891] App. Cas. 139 at 147 (Eng.) (“It is one of the inveterate principles of English law that a party cannot be compelled to discover that which, if answered, would tend to subject him to any punishment, penalty [or] forfeiture.”). Here, the Applicant1 contends that Mr. Baram knew or had reason to suspect that the Forged Police Report was a forgery when he published about the Applicant’s arrest. See October 31, 2019 Declaration of Lord Macdonald of River Glaven Kt QC, (“Macdonald Declaration”) [ECF No. 6], ¶¶13, 14. Whatever representations Applicant’s counsel makes to this Court that Applicant does not presently intend to prosecute or pursue civil remedies against Mr. Baram, Mr. Baram is undoubtedly at risk of public prosecution in the United Kingdom under the Fraud Act of 2006."

Now in August, Judge Aaron has allowed portions of the case to be re-opened: "ORDER granting in part and denying in part [79] Letter Motion to Reopen Case: Petitioner's request is GRANTED IN PART and DENIED IN PART. No later than September 7, 2020, Petitioner may file a formal motion to supplement, amend and/or renew his prior 1782 application. Respondent's opposition to such motion shall be filed within 14 days thereafter. Any reply from Petitioner shall be filed within 7 days of the opposition. SO ORDERED. (Signed by Magistrate Judge Stewart D. Aaron on 8/22/2020)." Inner City Press will continue on this important free press case.

   From the beginning of the February 10 oral argument before SDNY Magistrate Judge Stewart D. Aaron, Pishevan's lawyer Lucas Bento was limited his request to just the name and location of what he called Confidential Source-1.

   But shield laws generally prevent such discovery, which would put a chill on investigative reporting. At issue here was a report that Pishevar not only was arrested on allegations of sexual assault in London, but paid to make them go away.

    A source offered Baram what purported to a police report. It is now described as a falsified police report. Bento, checking his smart phone, added that the London Police say there are not arrest reports. But Judge Aaron has asked that by week's end he disclose whether Pishevar and his solicitor were given any document around the time of the arrest.   

Judge Aaron expressed doubt about Baram only half disclosing the cold water than London Police threw on the allegation at the time. He asked for three page letters, also by week's end. He declined to stay his decision until the side re-confer, saying if they reach an agreement before he rules, fine, but that he intends to rule.  
More on Patreon here.

The case is In Re Application of Shervin Pishevar for an Order to take Discovery for use in foreign proceedings pursuant to 28 U.S.C. 1782, 19-mc- 503 (Koeltl / Aaron).  


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