Kitzmiller v. Dover Area School District

(1:30 p.m., convene.)

THE COURT: We have several matters before the Court this afternoon, the first of which I believe by agreement is the application to intervene by the Foundation for Thought and Ethics, followed by a motion to quash, which we'll hear second.

Is that everybody's agreement? Is that acceptable to everybody or are we lined up differently?

MR. BENN: I think that was the initial intent, Your Honor. Somewhere down the pike we were advised that the newspapers would be going first and the intervenors would be going second. It doesn't matter to me.

THE COURT: It doesn't matter to me. Are we lined up to go with the newspapers first? All right, that's perfectly fine with me.

MR. BENN: I think it will be a briefer argument.

THE COURT: All right, we can certainly do that.

Why don't we have counsel enter your appearances, please, then, in the matter of the newspaper reporters.

MR. BENN: My name is Niles Benn, attorney in York, Pennsylvania. I'm here with my co-counsel, Terry Barna. We represent the York Daily Record as well as the York Dispatch. We also represent the reporters in issue, Joseph Maldonado and Heidi Bernard-Bubb.

MR. GILLEN: Patrick Gillen for the defendant, Your Honor.

THE COURT: All right.

MR. ROTHSCHILD: Good afternoon, Eric Rothschild for the plaintiffs with my co-counsel Witold Walczak with the ACLU, and Tom Schmidt from Pepper Hamilton.

THE COURT: Nice to see some of you again, some of you I haven't seen previously in this litigation.

All right. We have the, as I noted, the motion to quash filed on behalf of Mr. Maldonado and Ms. Bernard-Bubb. And in reviewing the submissions by the parties, it's -- I believe that I well understand how the issues frame out, and I also understand, I think, pretty comprehensively what your arguments are. But let me first then turn to counsel for the movants, and if you want to make an additional presentation I'll certainly give you the opportunity to do that.

MR. BENN: Thank you. Would you like me to be here?

THE COURT: Wherever you're comfortable.

MR. BENN: Your Honor, I would like to say something for the record initially to clarify I think some area of confusion with regard to something that we had done on behalf of both the newspapers as well as our reporter clients.

When we were first served with a subpoena relative to a deposition that Pepper Hamilton had served upon us, we had taken the position that it was far better to try to amicably resolve the matter and not have the Court's intervention with respect to the issue that is before the Court today. So what we attempted to do was to provide affidavits wherein the reporters would otherwise indicate that if they were called to testify the nature of their testimony would be to verify the statements set forth in their articles and the veracity of the articles, meaning if they were quotes, that is what the quotes were that they took from somebody else; if they there were not quotes, then that was the general information that they received when they were attending the school district meetings.

Likewise there was an issue in terms as to whether there was any request of retractions or corrections. So both reporters indicated in their affidavits that they had never been served with a request for retraction or corrections. And the newspaper editors likewise indicated the same, I think with one exception that being that I think we made reference to intelligent design in a manner in which it shouldn't have been made, and corrected it in a subsequent newspaper article. But it wasn't as a result of trying to avoid being cross-examined. And I think that has been an allegation that's been made by the defendants in this case that the purpose under which we submitted the affidavits was to circumvent the issue of cross examination.

THE COURT: Well, if I understand your submission, and maybe I don't, what apparently you're seeking is to have the -- at least for the purpose or discovery, you want to have the affidavits supplant, for example, a discovery deposition of your client, is that correct?

MR. BENN: We took the position that if the affidavits were accepted by both sides, that that would preclude the need to depose them. If the affidavits were not accepted by both sides -- and we wrote this in correspondence -- then we recognize that we would have to proceed with a motion to quash because it was our position that the reporters were otherwise protected by a reporter's privilege and not be compelled to testify.

THE COURT: Well, the privilege is a concept that at times is difficult to get -- for lawyers and judges to get our arms around. But having read the cases and certainly your good submissions, we have a situation where it's a mixed bag in terms of what the requests are.

It appears to me that one of the things we have is a request that your clients testify concerning what they saw and heard, particularly what they heard, during public meetings.

MR. BENN: That's correct.

THE COURT: Now, if I understand your position, it isn't necessarily that that in and of itself is protected by privilege, although it may be. I don't want to mischaracterize your argument, you seem to say that there could be some privilege there, I guess, but also that, for example, the prong is not met in that this information that is sought could be obtained from others, and there's been no showing that it hasn't been obtained from others. Is that a fair statement?

MR. BENN: That's a fair statement, yes.

THE COURT: Are you taking a position that to the extent the deposition would be a -- a deposition or depositions of your clients would be limited to what they saw and heard at a public meeting --

MR. BENN: We're saying --

THE COURT: -- and to the extent -- just to finish -- and to the extent that it doesn't involve confidential sources, that that's not something that your clients are amenable to?

MR. BENN: We've taken the position that what it is that we wrote is protected in the sense that the defendants or whomever is deposing us or calling us as a witness at the trial has to establish the fact that our testimony is relevant and crucial, and that for the most part we are the only parties that can otherwise testify to what it is that was printed.

And in this particular instance, that's far from reality. These --

THE COURT: How do we know it's not relevant?

MR. BENN: It may be relevant, but the issue is one, are there other sources where this information can be obtained.

THE COURT: I'm sorry, clearly there are --

MR. BENN: That's right.

THE COURT: Clearly there were other attendees at the meetings. I don't think anybody would controvert that; however, it's difficult for me to see how we, for example, chill a news gathering or cause difficulty if in fact -- and I understand that you can make the argument that the information can be obtained from others, but the parties can take the position they want to depose everybody who is in the room, I suppose, and then we get into, well, they can depose others first, and get to you later on. But it's difficult for me to see how we implicate the privilege or we chill the news gathering if they're questioned about what they saw and heard exclusive of confidential sources, which seems to me the parties are saying they don't want to get into, at least in terms of the depositions.

And I think the materials that are sought are a different area, and I want to get to that. But you're saying, finally, you don't want that, you don't want to subject them to depositions about what they saw and heard.

MR. BENN: No, what I'm saying, Your Honor, is if the Court determines that what you just said is how you feel, then in the alternative I would ask for a protective order such that if there were depositions they would be limited --

THE COURT: I see.

MR. BENN: -- to what you just said, and not be exposed to a myriad of questions that I don't think would be --

THE COURT: I understand. All right. But you particularly object to -- again, I don't want to mischaracterize your argument -- but you particularly object to that -- those inquiries, traipsing into confidential sources and other areas that might clearly come under the protection of the reporter's privilege.

MR. BENN: Well, let me just respond to the confidential source issue, because I can put that to bed. I don't believe that there are confidential sources in this case, and I'm not alleging that in my pleadings in terms of the shield law.

THE COURT: Well, tell me -- tell me if in fact the Court framed an order that would allow the reporters to be questioned as to, as we just discussed, what they saw and heard, where do you want the line drawn?

MR. BENN: That is where I would want the line drawn, not beyond that testimony.

THE COURT: All right.

MR. BENN: What it is they saw and what it is that they heard, and that the quotes that they made are the quotes that they heard.

THE COURT: All right.

Now, let's then segue for a moment into the materials sought. Continue.

MR. BENN: With all due respect, I'm not conceding that.

THE COURT: I understand.

MR. BENN: In terms of what I just said, I'm not conceding.

THE COURT: I understand you're not conceding the point. This is for the sake of argument, and I recognize what your position is, and I appreciate your candor in that regard. And I know you don't concede the essential point, and I want to hear everybody on this, but with respect to the materials that are sought, what looks to me to be particularly problematic from your standpoint are the notes, reporters' notes, drafts, et cetera. Is that a fair statement?

MR. BENN: That is correct. And, again, I would like to tell the Court what it is they have so that we understand what's in issue here.

With respect to Mr. Maldonado, I believe I have four e-mails. That's all I have that occurred I believe in March of 2005, so almost a year subsequent to when the articles in issue were printed. He has no notes. It's his policy to destroy notes within 30 days of the printing of the articles, so there are no notes.

With respect to Ms. Bernard-Bubb, I do have drafts of the articles that were written. I have the notes that were taken at the school board meetings, in other words she retained that information, and I have that in my position.

It's my position, however, that if hypothetically she were called to testify under the guise of what you just enunciated, none of that becomes relevant because she's testifying to what it is she heard, and what notes she took and what drafts of the articles she prepared have nothing to do with the final article in terms to what she's testifying.

THE COURT: So you would seek to protect the e-mails and the notes and drafts.

MR. BENN: That is correct. And if the Court took the position that they may be relevant predicated upon what my opposing counsel argues, then I would ask for an in camera review prior to turning over to counsel. And I believe the defendants in their brief have likewise indicated that that may be appropriate.

They have also raised the issue that when we had initiated our objection, our written letter to them indicating why we were objecting to that which they were requesting by means of the motion to produce, we failed to object to several items set forth in that motion to produce or the subpoena to produce, and that is correct, we didn't respond to it because we don't have it, but --

THE COURT: That would go to the, for example, the disciplinary areas, the --

MR. BENN: Personnel files.

THE COURT: -- personnel files. When you say you don't have it, what do you mean?

MR. BENN: There are no personnel files. The two reporters are independent contractors. They are not employed by our paper on a per diem basis. They're not employed by our paper on a weekly basis. They're employed on a per article basis.

THE COURT: Given how comprehensive your submission was, my assumption, which now you're telling me is correct, is that you didn't respond because you didn't have those things.

MR. BENN: That's exactly right, they don't exist.

THE COURT: All right. All right, go ahead.

MR. BENN: Getting back to my argument, and I believe the Court is now well aware in terms as to where we are, and obviously you are very much familiar with the case law. We believe that there are two cases in Pennsylvania -- or excuse me, in the Third Circuit, one in Pennsylvania in the Commonwealth Court, and one in the Third Circuit in Delaware, that really go to the very issue at hand.

The Parsons case, which we cited in our reply brief, was a case wherein there were four individuals speaking, and a reporter who heard what it is that they were discussing. And the individual correction officer, who otherwise was demoted in rank and suspended for some period of time without pay, had filed a complaint requesting that he be reinstituted at his higher rank and receive his backpay. And he subpoenaed the reporter to testify because he thought she misconstrued some of that which she had heard and presented it wrong in a false light that otherwise adversely affected the disciplinary action. The Court concluded that he had to first go to the other three people that were present before he went to the reporter; and therefore they sustained the motion to quash.

The same kind of thing happened in the state court case. There was a trial court decision where a motion to quash was sustained. It went to the Commonwealth Court, and in McMenamin the Commonwealth Court said that wherein there are other persons present at the press conference, before they can go to the reporters, they had to first go to the other parties.

In this particular instance we have said in our pleadings and you have already indicated these were public meetings. There were approximately 100 persons present from the public, in addition to all the school board members, both current as well as past, and they haven't even attempted to depose the other persons from the public. They deposed some of the school board members, and then they deposed or they requested to depose my reporter.

The concern that I have there, Your Honor, is that I find it somewhat incongruous when in fact this particular school district decides to tape record its meetings, and therefore has in effect its own record with regard to what was stated, and then chooses to overtape those meetings after the minutes are prepared, and the minutes clearly don't reflect the dialogue that had occurred. Don't raise an issue with regard to corrections after the articles are printed, don't raise an issue with regard to retractions after the articles are printed, and the only time the issue comes into play is after they're sued and after counsel gets involved, and then all of a sudden everybody conveniently forgets what it is that they may have said, and now they come to the press and say what did we say or how did we say it.

And I guess my concern is, why not go to the other members of the public, why not go to all of the members of the school board, past and present, before you come to us, because I think that's what those two cases are saying.

The reporters' privilege is such that, A, the testimony that we're going to offer if in fact we have to offer it has to be crucial, it has got to be material, it's got to be relevant, and we have to be the court of last resort, so to speak; and we're not.

And to the extent that we're basically being asked to do the job that they could do for themselves by interviewing other parties, I think that that's wrong, and I think that that's violative of what my privilege is. I think the same goes with respect to the notes. I think the notes are likewise privileged, unless they can prove the materiality of it, the relevancy of it, et cetera. And nowhere in the pleadings have they done that.

I find it further interesting that they now raise the issue in terms of how crucial this testimony is when in fact I believe the latest day to depose parties or conclude discovery was July the 15th, and that's the date of my deposition. And having said that -- or excuse me, I guess it was earlier this month, but having said that -- the deposition of the various school board members who are alleging that they don't remember saying whatever, particularly Mr. Buckingham, occurred many months before. And if in fact our testimony was so terribly crucial, why weren't we deposed many months before? Why wasn't that request made of us previously? The defendants in this case are piggybacking on what the plaintiffs attempted to do. And when the plaintiffs asked for a deposition, and we communicated with them by means of providing that affidavit, and they were willing to accept that affidavit --

THE COURT: Let me ask this, if -- if your clients are not deposed, because I won't let them be deposed, and in that hypothetical situation, what about -- what happens if they're called as witnesses in the case in chief?

MR. BENN: I will file my same objection.

THE COURT: Same basis?

MR. BENN: You got it.

THE COURT: All right.

MR. BENN: So my position being that after -- after the plaintiffs had indicated that they were willing not to pursue the subpoena and address the issue at trial, that's when defense said, you know, they want the right to cross-examine so they could learn beforehand in terms of what it is that we might otherwise testify to. But the reality of life is, maybe it's going to be determined by the plaintiffs that they're not even going to call us at trial, so why do we need to do the deposition now?

THE COURT: All right.

MR. BENN: Thank you.

THE COURT: Thank you for your argument. I appreciate it. Let's hear from defendant's counsel.

MR. GILLEN: Thank you, Your Honor. Pat Gillen for the defendants.

A couple of preliminary matters first. I think you've properly indicated that the core of the privilege is confidential sources. And we have indicated that we have no interest in getting at any, so it appears that is not an issue. Likewise --

THE COURT: Well, but is it? You know, it may be the core sense of what the privilege is, but certainly the stripe that runs through the case law, as indicated by the movant's counsel, is that there may be some obligation to depose others before you get to the reporters. What do you say about this?

MR. GILLEN: What I say about that, Your Honor, is we did not drag them into this. We had -- we understood that there were witnesses. We know there are other witnesses, and we've deposed some of those.

When they weren't witnesses, when they were on the sidelines, we were content with that. As you know, also by way of the reason for our late subpoena, in May a subpoena was served on them to get testimony by the plaintiffs on June 8th. Naturally we expected that. We subpoenaed documents that would allow us to conduct a meaningful cross examination of the reporters when they offered their testimony. So we didn't bring them into this.

Our position, the purpose of our subpoena and our motion to compel is very simple. It's really to secure due process, fundamental fairness. If they are going to come forward, if they are going to testify against our clients, then all we want is a fair ability to conduct a meaningful examination into their bias, their motive, et cetera.

THE COURT: What about the notes?

MR. GILLEN: The notes I think go to all of that. I mean from the standpoint of my clients' interests, giving their deposition testimony, these reports were consistently false and placed things in false light. The notes are very material to that.

THE COURT: Well, what about the privilege?

MR. GILLEN: The privilege -- I believe that the privilege, at least so far as it's, you know, secure, it's clear, doesn't extend to that material.

THE COURT: Because?

MR. GILLEN: The only holding in the Third Circuit that relates to that sort of secondary material is Cuthbertson, and it required disclosure. It recognized, as I believe to be what is true, and is true in this case, that those kind of notes of statements made, reported by a reporter, are unique in and of themselves. That's what the Third Circuit said, that that's right.

Now, I think that Cuthbertson wrongly extended the privilege beyond that. And I think Judge Rambo's concurrence in the subsequent case, Criden, is right. And I think that it's very interesting that Cuthbertson did not mention Herbert v. Lando decided by the Supreme Court shortly before Cuthbertson was decided and holding that there is no editorial process privilege.

So my position is if they're going to be allowed to testify, then that's the purpose of our subpoenas, that's the purpose of our examination.

THE COURT: Where does it -- does the privilege affect this case at all on these facts?

MR. GILLEN: Not based on the representation that there were no confidential sources involved.

THE COURT: So you say the privilege, really, at its essence, applies only to confidential sources?

MR. GILLEN: Yes. I say that that's the holdings. That narrow view is what is most secure. Beyond that, the cases from the Supreme Court and the Third Circuit indicate it's just confidential sources, perhaps information that would lead to the discovery of the identity of confidential sources. Beyond that --

THE COURT: But we don't know -- well, of course counsel says there are no confidential sources, but I think you read the privilege too narrowly. We may disagree on that, and I think, again, another stripe that runs through the cases, or at least a theme is that we run the risk of chilling the ability of reporters to do their work, particularly if we examine their notes.

MR. GILLEN: The only thing I can say to that, Judge, is the U.S. Supreme Court considered all of those objections in Herbert v. Lando. It said no. If these reporters were defendants in a defamation action brought by my clients, they would have to turn that stuff over.

THE COURT: Well they might, but they're not.

MR. GILLEN: Well, I mean that's the question for you to decide. But my point is, those notes are not protected. I firmly believe that under the Beterman (phonetic) cases and in light of their holdings.

THE COURT: All right. Thank you.

MR. GILLEN: You're welcome.

THE COURT: To the plaintiffs.

MR. WALCZAK: Your Honor, Witold Walczak, ACLU of Pennsylvania for the plaintiffs.

The plaintiffs' interests, as I think the Court has correctly identified them, are fairly narrow. But before I get to those, it might -- I mean I would like to focus on this privilege issue because I'd like to reconceptualize it a little bit differently.

THE COURT: Well, you say they've waived it.

MR. WALCZAK: Well, it is an argument in there, and how this works out in practice if we don't get the affidavits in, and whether the reporters get called at trial --

THE COURT: I'm not sure the movants feel very good about your argument that they've waived it, but you've made that argument nonetheless, is that right?

MR. WALCZAK: We have, Your Honor. We also argue, as I will in just a moment, that the information we're seeking stops at the line of privilege.

Just from the comments I've heard it seems to me that it is appropriate and makes sense under the law to look at it as two separate privileges related to news reporters. One is the confidential source privilege, which is quite clear, everybody understands. The other is a news gatherers privilege. And, again, Cuthbertson is really the leading case on this. And on page 147 the Court writes, We hold the privilege extends to unpublished material in the possession of CBS.

So that there's the confidential source privilege, and there's the news gathering privilege, which gives the media that sort of -- that breathing space, and it could be analogized to an attorney work product privilege.

THE COURT: And part of the rationale, obviously, as I just stated to Mr. Gillen, I think the rationale has the tendency to chill efforts by the media to do their work. Is that not correct?

MR. WALCZAK: That's absolutely correct, and that -- and that is the justification. And with all due respect to Mr. Gillen, who we've gotten to know quite well, I don't think that his assertion that Cuthbertson is kind of way out there on the fringe is correct. In fact --

THE COURT: What is it that you want? Let's try to line up first of all --

MR. WALCZAK: Very narrowly, Your Honor, in our complaint filed on December the 14th, we alleged in there that the defendants made numerous statements at public meetings, or agents of the defendants, Mr. Buckingham primarily, head of the curriculum committee.

THE COURT: I understand.

MR. WALCZAK: For instance that, "We need to balance the teaching of evolution with creationism. This country wasn't founded on Muslim beliefs or evolution. This country was founded on Christianity, and our students should be taught as such." That's at paragraph 29.

Paragraph 30. "2000 years ago someone died on a cross. Can't someone take a stand for him."

And those comments are important under the Lemon test. And I remember back in February or March Your Honor had some question about whether Lemon is the applicable test. As noted in a quick reading of the summary judgment brief defendants filed last night, they are now conceding that Lemon is the applicable test. And I think under McCreary County versus ACLU that's probably right. We don't need to decide that today.

THE COURT: No, we don't. We'll have a lot to say about that.

MR. WALCZAK: And I want to just take this opportunity to apologize because it's not as if we don't have enough interesting constitutional issues in this case, and now we have additional ones that are coming to light today, and we kind of got us into this. But the reason this has become so important and this has become an issue is that these comments are important to the plaintiffs' case, they go both to the purpose/motive prong, and the effects prong.

THE COURT: Well, I understand that, but let me try to make sure that I understand, and I recognize what it is that you're saying and why you need to say it, but my question is fairly basic. If I understand Mr. Gillen, the defendants seek pretty much unfettered ability to not only conduct an examination of the movants, but also to get into the notes, and, I assume, Mr. Gillen, the e-mails as well, to the extent that they're relevant to the proceedings.

Now, do I understand that you stop short of the notes and the e-mails -- I want to just make sure I understand everybody's position -- and you want the ability to depose, or you do not, and that's what I'm trying to --

MR. WALCZAK: Well, it depends on how all this plays out, but just -- let me just explain historically. On June -- on January 3rd we began taking depositions of the defendants. And somewhat to our surprise, one by one they uniformly denied the quotes attributed to them in the two different newspapers. And, you know, and it wasn't the wording is wrong; we never used the word creationism at any public meeting. So there really is a factual dispute there.

Under Rule 902(6), I believe it is, these newspaper articles are self authenticating; so that's not a problem. But we still need to lay a foundation. And the only thing we want from the newspapers is the ability to lay a proper foundation so that we can get these newspaper articles into evidence. The affidavits that the reporters and that the editors have given to us, and the stipulation that in fact was signed and submitted in court covers everything we're looking for.

THE COURT: So do I understand then that to try to answer the question that I asked you, that Mr. Gillen obviously wants to depose these two reporters. You're content to stand on what you have, but if there is a deposition you're going to join in?

MR. WALCZAK: Your Honor, that is correct. We are content with what we have now. If we don't get the stipulation entered or get some type of affidavits in, which I don't believe we can get in without defendant's consent, then we would want either to participate in the deposition to ask the foundational questions, and I can -- I can give assurance to the Court that's the only thing we would ask unless there's some reason to rehabilitate or something comes up in the examination. So, again, I can't promise that we would stop at that point.

THE COURT: All right, I understand. All right.

MR. GILLEN: Your Honor, may I respond briefly?

Two things, the newspaper articles are hearsay. I mean those are Ms. Maldonado --

THE COURT: We're not going to argue evidence.

MR. GILLEN: Okay, I understand.

THE COURT: The admissibility and the self authentication, I'm not --

MR. GILLEN: Very well.

THE COURT: We don't need to discourse about that today.

MR. GILLEN: That's fine, and I accept that, Your Honor.

That said, the next thing is, you know, it's no comfort to my clients that the reporters can come forward and selectively testify and not be exposed to meaningful examination.

As you know, opposing counsel indicates, many statements have been attributed to my clients which they flat out deny. They believe statements were taken wholly out of context, words were put in their mouth. That is their testimony, and I've shown you that. And what's more, the reporters say no one ever talked to us about it. That is not the testimony in front of you from the depositions. They say we went to them, we tried to get a fair hearing and we didn't.

So from their standpoint, the notion that the reporters have a limited right to come forward, you know, say what they like and shield that, their -- the process and their notes from any meaningful scrutiny, that is no comfort. That would deprive them of due process. They need a chance to really examine them. What do those notes say? What words were used? What statements were omitted from the articles? I mean that's part of the concern of my clients.

Creationism was a term that was largely put into their mouth by these reporters. There were times when they said under the heated argument, maybe they misspoke, because people were charging them with that. That's not the point. These statements they deny flat out. We want an opportunity to look at this process, to look at its reliability, and to examine what else was said. Moreover, without knowing what's in the notes, there could be other statements there by third parties and so on that are highly relevant to our defense. It's kind of peekaboo discovery. We stand up and say yeah, what I said is true, and we have to settle for that. Judge, that would be fundamentally unfair.

THE COURT: Let me ask Mr. Walczak, do I understand your position to be that all other things being equal, if the reporters would not be deposed at this time, and, for example you would stand on the stipulated affidavits, that nonetheless you would intend to call the reporters in your case in chief, or at least in terms of right?

MR. WALCZAK: Let me put it another way. It is our intention, and there's just no doubt, it is our intention to introduce the full panoply of newspaper articles into the record. And ultimately it would be Your Honor's evidentiary call whether or not the stipulations or the affidavits could come in. I have --

THE COURT: So you would only call them, if I understand correctly, if you couldn't get a stipulation as to the admissibility of -- or the authenticity of particular articles which you say under the rule self authenticate and we need not get to that, I don't think, today.

MR. WALCZAK: No, it's not just the authentication, it's the foundation that in fact what was reported there is -- that they were present, and it was accurate.

THE COURT: But there are a certain set of stipulations or facts that would cause you not to have to call the reporters in aid of your case in chief. There's a certain set of circumstances that would cause you to have to call the reporters. And if I understand your argument that -- gently made, and your submission that the privilege has been eviscerated by the affidavits of the reporters, that would go to, it seems to me, your ability to call the reporters during your case in chief if you really had to. Do I have that right?

MR. WALCZAK: Yes, plus, one, there is a -- rather than eviscerated, I would say arguably a waiver here, but the second --

THE COURT: Too strong a word by me?

MR. WALCZAK: We have great respect for the press. I don't want to eviscerate any of their rights. But the second point is, that between Riley and Cuthbertson in the Third Circuit, the privilege extends either to confidential sources or to unpublished materials editorial process. Every court that has looked at it says it does not extend to published information, and so if we were to call them it's the -- there either is no privilege or it's waived, and we would call them at trial and simply ask, did you write these articles, were they based on firsthand information, are they accurate, have you gotten any corrections or retractions, thank you very much, that's the end of it.

THE COURT: All right, I understand.

MR. GILLEN: Judge, if I may, my position is, if those affidavits, other information from these reporters is going to be used against my clients, then you've got to give me a chance to look at the material I've asked for just out of fundamental fairness.

THE COURT: Give you a chance to do what?

MR. GILLEN: To examine them about what they saw and heard.

THE COURT: I understand. All right.

MR. GILLEN: The notes they took there.

THE COURT: You said look at materials, I'm --

MR. GILLEN: Materials I've requested, the materials I've subpoenaed.

THE COURT: Let me ask Mr. Benn, on the issue of what apparently are a set of e-mails and the notes and drafts, e-mails in the case of your one client and notes and drafts in the case of the other, how can I rule them out of bounds without looking at them?

MR. BENN: Oh no, I'm proposing that, what I'm saying to you, Your Honor, is that if there's some concern on your part that maybe they're admissible, that I would respectfully request that you look at them in camera, determine the relevancy, and if they are relevant and you make an order to that effect, I'm going to have to live with that.

THE COURT: I understand.

MR. BENN: But in the alternative if you determine that they're not relevant, I don't see any basis to turn them over to anybody. I think they are protected.

THE COURT: I think under the case law, because it's less than clear I think we can all agree, and I think it can be argued different ways, you may see it differently, it is problematic for me to, sight unseen, simply say that the notes and drafts and e-mails come under a privilege without an examination. It is probably better for everybody if the Court conduct some in camera examination, it seems to me.

Now, how do you propose that I do that?

MR. BENN: I'll turn them over to you next week.

THE COURT: I think what I would suggest to wrap this up is -- go ahead.

MR. BENN: Before you wrap it up, I would like to have comment with respect to arguments of both counsel.

THE COURT: By all means.

MR. BENN: Defense have raised in their pleadings and in their brief that -- and in their argument that the reporters have been biased in terms of the reporting. I need the Court to be cognizant of the fact that York has two newspapers, the York Daily Record, which is owned by Media News Group, and the York Dispatch, which is run by Butner News Alliance. They are two separate distinct newspapers, two separate editorial staffs. They have nothing to do with the other. And if there's bias then we're alleging some element of conspiracy here as it relates to the two reporters because the reporters wrote two separate articles for each meeting they attended, and ironically they all heard the same thing.

THE COURT: I understand.

MR. BENN: That's number one.

Number two, I believe that counsel has indicated that we've used the word creationism and that that never came out of the school board member's mouth and that that's part of what this problem is in terms as to the language we used in our article. Not to suggest that you need to get another media in this case, but there is a Fox 43 record on the Internet where Mr. Buckingham is interviewed and specifically used the word creationism.

Thank you.

THE COURT: How does that help me today?

MR. BENN: Well, I think it discredits somebody's argument.

THE COURT: And I -- and I take those somewhat ancillary points as arguments, and I'm not sure that they are helpful to me today. Everybody has got a position. The position obviously the defendants have is that certain things weren't said, and they want to have the ability to examine the reporters on those points, I recognize that.

MR. BENN: But again, and this will be my final statement, I promise you, although that's pretty daring when it comes out of a lawyer's mouth, if the argument is that my clients wrote whatever, and it was contradictory or not in conformance with or not exactly what was said by the board members, again my posture is, very clearly, that there were other independent parties not associated with the newspaper, not associated with the school board, but rather members of the general public, parents of students that attended those school board meetings, they are the sole possessors of the names of those individuals because they maintain the sign-in list, and those parties I would presume would likewise be able to evidentiary state what it is that they heard, saw and observed.

THE COURT: I understand.

MR. WALCZAK: I'm sorry, Your Honor.

THE COURT: We'll have to end this sometime, but give you a couple more comments.

MR. WALCZAK: We started down the road of, is this information really necessary, and I think Mr. Benn is correct, that in order for plaintiffs or either of the parties to overcome that privilege, we have to show that it's really necessary, that it can't be gotten from other parties.

Just in case this Court is thinking that maybe none of this should be admissible, the plaintiffs would focus on a statement in Cuthbertson that they said referring to TV tape, these are unique bits of evidence that are frozen at a particular place and time.

And yes, it's true we have several other witnesses including plaintiffs who will come in and say we were at those meetings and, yes, we recall statements about creationism, we recall statements about Muslim beliefs, we recall statements about Darwinism, but that is all based on recollection. What we have here is contemporaneously recorded statements; and that is unique. No other individuals can testify to that.

Also, and I don't know if Your Honor has had a chance to read McCreary County versus ACLU yet, but the Court goes to great lengths to talk about sort of the gestalt of the situation, what is the environment; and when the reasonable observer looks at a situation, do they perceive an endorsement of religion. So you have to really look at the historical record. These news reports in totality are part of the historical records. So this is -- this is unique evidence that's really important to our case.

THE COURT: If you won't let me use the word eviscerate, I won't let you use the word gestalt.

MR. WALCZAK: Thank you.

THE COURT: Last word.

MR. GILLEN: Thank you, Your Honor. Two things. With respect to the sign-in sheets, they do exist. Plainly they're unreliable in this sense, there's a handful of signatures on each one. They've been produced. These are meetings at which I know some people say 70 or 100 were present.

THE COURT: I understand.

MR. GILLEN: Second, if the sign-in sheets are to be credited by counsel for the reporters, I mean, it's not at all clear that reporters were present at all of the meetings, and it's -- it wouldn't be the first time that reporters borrowed quotes from one another.

I mean, I don't mean to say that that somehow is wholly improper, but I cannot foreclose that there was some cooperation because --

THE COURT: I understand your position, Mr. Gillen. I think the longer you argue it, the more you're going to beg another comment from Mr. Benn, and this will become endless.

MR. BENN: I have several for that one.

THE COURT: I bet you do.

I would like to examine the -- and I think it's incumbent upon me to examine the e-mails and the notes and drafts, and I guess we can do it two ways, Mr. Benn. We can either have you file them under seal or we can have you simply provide them for an in camera inspection. I would prefer the latter, I think.

MR. BENN: That's what we'll do.

THE COURT: Why don't you provide those to me, to my chambers, I would say -- well, how long is it going to take you?

MR. BENN: Can I give them to you next Tuesday?

THE COURT: Let's say by the close of business Tuesday, that will be fine. And I will conduct an examination in camera and rule then pursuant to argument heard today and the submissions of the parties and my examination of the materials.

Now, let me -- before we close this portion of today's proceedings, Mr. Gillen, do you accept -- do we have any issue with respect to Mr. Benn's assertion that, to the extent you don't get anything else, it doesn't exist?

MR. GILLEN: Certainly. I'm not going to impugn his integrity. If he says there are no documents that exist, Your Honor, I have to be content with that.

THE COURT: I simply don't want to have another proceeding on a motion to compel or some other vehicle because you say that you're entitled to something that you didn't get. It seems to me that the only materials requested as a portion of your subpoena of the individual reporters that exist according to Mr. Benn are the e-mails and the notes and drafts. All other matters, including the employment records, to the extent that these are independent contractors, simply don't exist. So speak now or --

MR. GILLEN: Well, I would say --

THE COURT: -- hold your peace.

MR. GILLEN: -- Judge, and I thank you for the opportunity. I think that everything we've asked for is proper. To the extent it doesn't exist, I have noted that, and that's represented to me by counsel for the papers.

THE COURT: Have you represented that formally other than perhaps on the record today?

MR. BENN: The first time that I represented those items don't exist is in today's argument. I can do it in a letter.

THE COURT: I think you should so that we're all clear. And I think Mr. Gillen certainly respects your integrity, it's clear, but I think you ought to spell it out and -- so that everybody understands. So then the in camera inspection of those matters that we just spoke about would suffice for the materials sought via the subpoenas. So we have that, and we have the actual issue of the testimony of the reporters and, if so, what the boundaries are.

MR. BENN: There's one other thing that I have in my file, that I didn't mention only because it's a letter from Mr. Bonsell, who I believe was the school board president. He wrote a letter to the editor that he asked to be published. So I have that letter together with the letter that he wrote that he wanted published together with the editorial that was published.

THE COURT: Are you going to turn that over? You're going to submit that to me?

MR. BENN: That's all I have, so I'll give you what I have.

THE COURT: What is the problem with turning that over?

MR. BENN: I don't have a problem with it.

THE COURT: Why don't you just turn it over. I don't think it's helpful to have me review something that is, under the circumstances, would appear to be innocuous and in their possession anyway likely, so I would -- perhaps when you send your missive to Mr. Gillen that indicates what you have and what you don't have, you ought to just send it --

MR. BENN: I'll send it to both counsel.

THE COURT: -- to both counsel, to all counsel, to the many counsel we have in this case, copies to everyone.

MR. BENN: You're dealing with more counsel than I am.

THE COURT: So I am.

Anything else before we close the record in this portion of the proceeding? All right.

Then we'll excuse you. That concludes --

MR. BENN: Thank you.

THE COURT: Thank you, Mr. Benn. Let's have counsel I guess for the Foundation for Thought and Ethics will take their seats.

While you're setting up we'll take five minutes and I'll be right back.

THE DEPUTY CLERK: All rise.

(Whereupon, a recess was taken from 12:12 p.m. to 12:23 p.m.)