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Judge quashes subpoena of New York Post reporter

November 22, 2019

Veteran New York Post reporter Susan Edelman was subpoenaed on Jan. 7, 2019, in an ongoing lawsuit between a former New York firefighter and the department. A federal magistrate judge quashed the subpoena on Aug. 9, and a federal district court judge affirmed that decision on Nov. 12.

Michael Johnson, the plaintiff, alleges in his civil lawsuit filed in November 2016 that he was discriminated against at FDNY due to his status as an African American "priority hire" who joined the department in 2014. He was hired following a court order to remedy historically discriminatory hiring practices at FDNY. Johnson alleges that he was the subject of strategic leaks to the media intended to portray him as a coward who refused to fight fires.

Edelman was the co-author of a May 2015 New York Post story titled "Firefighters fear colleague who routinely flees fires." The piece began, "He's a firefighter in name only. Michael D. Johnson won't fight fires. Instead, he stays on the sidelines as his Engine Company 257 colleagues rush into burning buildings, FDNY insiders told the Post."

The 2019 subpoena was issued demanding Edelman appear at a Jan. 29 deposition at the New York office of one of Johnson's attorneys. After negotiations with Johnson's attorneys and several extensions granted by the court, Edelman's attorneys filed a motion to quash the subpoena on June 4.

Edelman penned an affidavit in support of the motion, in which she argues the importance of keeping the identities of her sources confidential. "My reporting for the Post includes investigating corruption, waste, and misconduct within government agencies in New York City," she writes. "The municipal government sources who provide me information on these and other issues could be subject to serious professional discipline—or even lose their job—for speaking with me. It is therefore absolutely critical that my sources trust that I will maintain their confidentiality."

Lawyers for Johnson argued in court filings that Edelman had waived her reporter's privilege because she, in a 2015 phone call with one of Johnson’s attorneys, mentioned she was getting a call on another line from Jake Lemonda, a FDNY battalion chief. Edelman's attorney, Robert Balin, disagreed, writing in a filing, "Ms. Edelman said nothing about the substance of any conversations she had with Mr. Lemonda, whether he provided her with any information, or if he did, whether any information he provided was used in—or even connected to—the Article."

Vera M. Scanlon, a federal magistrate judge, granted the order quashing the subpoena on Aug. 9. The plaintiff’s counsel filed an objection to Scanlon's order, writing that the judge "erred when she found that all of Edelman's discussions with her sources were confidential" and that the "standard for non-confidentiality ought to apply."

On Nov. 12, U.S. District Court Judge Kiyo A. Matsumoto affirmed Scanlon's order granting Edelman's motion to quash the subpoena. "Judge Scanlon properly exercised her discretion when she held that Edelman's sources and other newsgathering information with respect to the Article were confidential and that plaintiff did not overcome his burden to compel disclosure of Edelman's information," she found.

The U.S. Press Freedom Tracker catalogues press freedom violations in the United States. Email tips to [email protected]

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