Boston Globe reporter subpoenaed a second time in condo dispute

Boston Globe business reporter Jon Chesto was issued a subpoena on April 20, 2021, ordering him to testify and turn over unpublished communications and notes in connection with a condo dispute involving two Massachusetts businessmen. The subpoena, the second he received in connection with the case, was ultimately struck down.

The two men — James Shane and George Regan Jr. — were members of the same condo association. While Shane was serving as president of the board of managers, Regan produced and distributed multiple letters alleging Shane had engaged in fraudulent and unethical conduct concerning a proposed club room for the condo.

Regan also contacted Chesto in an attempt to interest him or the Globe in the story. The newspaper did not report on the dispute, however, nor the resulting defamation lawsuit Shane filed against Regan in 2019.

Shane initially subpoenaed Chesto in July 2020, ordering him to sit for a deposition and turn over all communications with Regan or any others about Shane, the construction project, or the meetings and votes concerning it. After an attorney representing the reporter raised objections, Shane agreed to reschedule the deposition, but no new date was set.

After Regan sat for a deposition on April 20, 2021, attorneys for Shane issued a second subpoena with the same requests, ordering Chesto to appear to testify May 10. Chesto once again opposed the request.

According to court records reviewed by the U.S. Press Freedom Tracker, attorneys for Shane initially agreed to reschedule the deposition to resolve disputes but, on Aug. 13, Shane asked the court to compel Chesto’s compliance.

“Nothing in Massachusetts law provides Chesto with a privilege to avoid testifying at deposition and producing the documents called for by the subpoena,” attorneys for Shane wrote. Massachusetts has no shield law and the commonwealth’s highest court has not recognized a reporter’s privilege under either the Massachusetts or U.S. constitutions.

Chesto wrote in a declaration that his standard practice is to treat all communications with sources as on background or off the record unless otherwise specified, and that being forced to testify could significantly impact his ability to continue reporting.

“Based on my experience, sources would be reluctant to speak to me if they understood that our communications might be disclosed at the request of a party to a lawsuit, including communications that did not result in or become part of an article,” he wrote.

An attorney representing Chesto opposed the motion in an Aug. 24 filing, arguing that any testimony or records he could provide would be both “cumulative and irrelevant.”

“Nor can Chesto’s testimony aid Shane’s damages claim—the decision not to write about the dispute is hardly evidence that Regan’s statements hurt Shane’s reputation,” wrote attorney Jonathan Albano.

“Treating all communications between reporters and their sources as publicly available research materials for litigants,” Albano continued, “would convert reporters into virtually full-time witnesses, diverting them from performing their real jobs.”

Superior Court Justice Catherine Ham ruled in Chesto’s favor on Jan. 11, 2022, finding that the information sought had already been produced by Regan. She denied Shane’s motion to compel the reporter and granted Chesto a protective order to prevent further requests in connection with the defamation suit.

“This court finds that Mr. Chesto has no privilege,” Ham wrote, adding, however, “the defendant’s communication to Mr. Chesto—which is not the subject of the defamation claim—is already received (from Regan) and thus, duplicative and cumulative.”