| Matter of Gilson v Coburn |
| 2013 NY Slip Op 03177 [106 AD3d 424] |
| May 2, 2013 |
| Appellate Division, First Department |
| In the Matter of Pauline Gilson, Appellant, v DavinCoburn, Respondent. |
—[*1] Jonathan R. Donnellan, New York (Eva M. Saketkoo of counsel), forrespondent.
Order, Supreme Court, New York County (Shlomo Hagler, J.), entered June 6, 2012,which granted respondent's motion to quash a subpoena duces tecum in connection withan Arizona action to which he is not a party, unanimously affirmed, without costs.
Petitioner's claims in the underlying Arizona action arise from her husband's death inan "aerotrekking" accident on November 1, 2006. Petitioner alleges, inter alia, thatdefendant John McAfee owned the ultralight aircraft in which petitioner's husband wasthe passenger and funded the Arizona flight school from which the fatal flight originated.Respondent Davin Coburn is a reporter who published a magazine article recounting hisfour-day experience aerotrekking with McAfee and others in June 2006. The subjectsubpoena commands Coburn to appear for a deposition and to produce any documentsrelating, in sum, to the subject matter of the Arizona lawsuit.
Contrary to petitioner's contention, all the information she seeks constitutes"unpublished news obtained or prepared by" Coburn, undisputedly a professionaljournalist, "in the course of gathering or obtaining [the] news" that was ultimatelypublished in the article, and is therefore subject to qualified protection under the NewYork Shield Law (see Civil Rights Law § 79-h [c]; Baker v GoldmanSachs & Co., 669 F3d 105, 110-111 [2d Cir 2012]).
Petitioner failed to make the "clear and specific showing" required to overcome theprotection (see Civil Rights Law § 79-h [c]). Even assuming that theinformation she seeks is "highly material and relevant" and "critical or necessary" to themaintenance of her claims, she has not shown that it is unobtainable "from anyalternative source" (see id.). It does not appear that she has even attempted toengage in forensic accounting or otherwise obtain the financial [*2]information she seeks or that she has made any effort toobtain aircraft registration information from sources such as the manufacturer or dealer(see Flynn v NYP Holdings, 235 AD2d 907, 909 [3d Dept 1997]; Matter ofCBS Inc. [Vacco], 232 AD2d 291 [1st Dept 1996]). Concur—Tom, J.P.,Friedman, Sweeny and Freedman, JJ.