In connection with its investigation of whether an energy company (Company) had manipulated and attempted to manipulate natural gas prices at various locations in Texas, the Commodities Futures Trading Commission served a subpoena on McGraw-Hill, a major publisher of energy newsletters, seeking documents concerning trading data. The CFTC argued that the production of these documents was necessary to establish both that the Company had the ability to manipulate prices and that it did cause such manipulation. McGraw-Hill opposed the subpoena, claiming that the documents were protected from disclosure under the reporter’s privilege of the First Amendment.
While recognizing that the reporter’s privilege advances First Amendment interests by safeguarding the confidentiality of the news gathering process, thereby fostering a reporter’s ability to gather news, the Court ruled that the privilege was not absolute. In order for it to apply, McGraw-Hill was required to show that its First Amendment interests outweighed the CFTC’s (i) need for the subpoenaed documents, and (ii) inability to obtain them from reasonably available alternative sources. Applying this balancing test, the Court held that documents that were relevant to core elements of the CFTC’s claim that could not be obtained from the Company and also were needed to verify the bona fides of the Company’s document production were not shielded by the privilege. In contrast, the Court upheld the privilege against the CFTC’s request for documents concerning unsolicited complaints McGraw-Hill had received about Company, characterizing the request as an unlicensed fishing expedition for information that was not probative of the CFTC’s claims. (U.S. Commodity Futures Trading Commission v. McGraw-Hill Companies, Inc., 2007 WL 2416109 (D.D.C. Aug. 27, 2007))