jassy vick carolan llp - the wall street...

PLAINTIFF’S EX PARTE APPLICATION FOR

TRO AND ORDER TO SHOW CAUSE

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JEAN-PAUL JASSY, Cal. Bar No. 205513 [email protected] KEVIN L. VICK, Cal. Bar No. 220738 [email protected] DUFFY CAROLAN, Cal Bar No. 154988 [email protected] SUNNY K. LU, Cal. Bar No. 247667 [email protected] JASSY VICK CAROLAN LLP 6605 Hollywood Boulevard, Suite 100 Los Angeles, California 90028 Telephone: 310-870-7048 Facsimile: 310-870-7010 Colby C. Vokey (pro hac vice forthcoming) LtCol USMC (Ret.) [email protected] 6924 Spanky Branch Court Dallas, Texas 75248 Telephone: 214-697-0274 Facsimile: 214-594-9034 Attorneys for Plaintiffs MARK BOAL and FLAKJACKET LLC d/b/a PAGE 1

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA – WESTERN DIVISION

MARK BOAL, an individual, FLAKJACKET LLC d/b/a PAGE 1, a California Limited Liability Company,

Plaintiffs, v.

UNITED STATES OF AMERICA; BARACK OBAMA, in his official capacity as President of the United States of America; ASHTON B. CARTER, in his official capacity as Secretary of Defense; ERIC FANNING, in his official capacity as Secretary of the Army; ROBERT B. ABRAMS, in his official capacity as General Court-Martial Convening Authority; JUSTIN OSHANA, in his official capacity as Major, Judge Advocate, US Army Trial Counsel, and DOES 1 THROUGH 10, inclusive,

Defendants.

Case No.: 2:16-CV-05407-GHK-GJS

Assigned to Hon. George H. King

PLAINTIFFS’ EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER AND FOR ORDER TO SHOW CAUSE WHY DEFENDANTS SHOULD NOT BE PRELIMINARY ENJOINED FROM ISSUING AND/OR ENFORCING A SUBPOENA TO PLAINTIFFS [Filed concurrently herewith: Memorandum of Points & Authorities, Declaration of Mark Boal, Declaration of Jean-Paul Jassy, and [Proposed] Temporary Restraining Order and Order to Show Cause Why Defendants Should Not Be Preliminarily Enjoined]

Case 2:16-cv-05407-GHK-GJS Document 9 Filed 07/21/16 of 3 Page ID #:25

-1- PLAINTIFF’S EX PARTE APPLICATION FOR


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Pursuant to Rule 65 of the Federal Rules of Civil Procedure and Rules 7-19 and

65-1 of the Central District of California Local Civil Rules, Plaintiffs Mark Boal

(“Boal”) and Flakjacket LLC d/b/a Page 1 (“Page 1”) (collectively, “Plaintiffs”)

hereby apply to this Court for a Temporary Restraining Order (“TRO”) enjoining

defendants United States of America, President Barack Obama, Secretary Ashton B.

Carter, Secretary Eric Fanning, General Robert B. Abrams, Major Justin Oshana and

Does 1-10 (collectively, “Defendants”) from issuing and/or enforcing a threatened

subpoena to Plaintiffs (the “Subpoena”) that would violate Plaintiffs’ rights under the

First Amendment and other authorities.

Plaintiff Boal is a Los Angeles-based journalist, documentarian, screenwriter,

filmmaker and producer. While he is best-known as the writer and producer of The

Hurt Locker and Zero Dark Thirty, this action concerns his activities as a journalist.

In 2014, Boal began investigating the story of US Army Sgt. Robert Bowdrie (Bowe)

Bergdahl (“Bergdahl”). Bergdahl is presently facing a court martial in Ft. Bragg,

North Carolina for allegedly deserting his post in Afghanistan several years ago.

Bergdahl’s story was the subject of the recent second season of the podcast Serial,

which Boal helped co-produce. The military prosecutor in Bergdahl’s court martial,

Justin Oshana, Major, U.S. Army Office of the Staff Judge Advocate, has represented

that tomorrow, July 22, 2016, he will serve Plaintiffs with a subpoena for “[t]he

complete unedited audio recordings of conversations” between Boal and Bergdahl

“referenced in the Serial podcast as over 25 hours of recorded conversations.” Such

Subpoena violates Plaintiffs’ rights under the reporter’s privilege, which is rooted in

the First Amendment and recognized in this Circuit and nationwide.

This TRO is necessary to prevent the irreparable harm that would result from

allowing the Defendants to proceed with the Subpoena. If Defendants are permitted

to proceed, Plaintiffs will be forced to choose between handing over confidential and

privileged materials to the military prosecutor – with serious and irreparable harm to


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Plaintiffs’ work, reputation and finances – or facing contempt charges under 10

U.S.C. § 847.

Plaintiffs further request that this Court issue an Order to Show Cause why a

preliminary injunction should not issue immediately after the TRO expires, to

continue enjoining Defendants and those in concert with them from issuing and/or

enforcing the Subpoena. This preliminary injunction should remain in place pending

a trial on the merits of the Complaint, which seeks declaratory relief under 28 U.S.C.

§ 2201, injunctive relief, and a writ of mandamus and/or prohibition under 28 U.S.C.

§ 1651(a).

Plaintiff Mark Boal’s Declaration is filed herewith in support hereof. So is a

Memorandum of Points and Authorities in Support of this Ex Parte Application. A

proposed TRO and Order to Show Cause are lodged herewith, pursuant to Rule 65-1

of the Central District of California Local Civil Rules.

The notice of application required by Rule 7-19.1 of the Central District of

California Local Civil Rules has been provided, as explained in more detail in the

concurrently-filed Declaration of Jean-Paul Jassy (“Jassy Decl.”), counsel for

Plaintiffs. During a phone call on July 20, 2016, Mr. Jassy provided notice of

Plaintiffs’ intent to seek this TRO to Major Justin Oshana, the military prosecutor

who represented that he would serve the Subpoena on Plaintiffs on July 22, 2016.

Major Oshana’s contact information is: Justin Oshana, Major, U.S. Army Office of

the Staff Judge Advocate, United States Army Forces Command, 4700 Knox Street,

Fort Bragg, NC 28310-5000, (910) 570-5922, [email protected]. Jassy

Decl., ¶¶ 2-4.

Dated: July 21, 2016 JASSY VICK CAROLAN LLP

By _____/s/ Jean-Paul Jassy____________ JEAN-PAUL JASSY Attorneys for Plaintiffs

MARK BOAL and FLAKJACKET LLC d/b/a PAGE 1


COMPLAINT AND WRIT PETITION

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Plaintiffs,

v.


Defendants.

Case No.: 2:16-CV-05407-GHK-GJS Assigned to the Hon. George H. King

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER AND FOR ORDER TO SHOW CAUSE WHY DEFENDANTS SHOULD NOT BE PRELIMINARY ENJOINED FROM ISSUING AND ENFORCING SUBPOENA [Filed concurrently herewith: Plaintiffs’ Ex Parte Application for Temporary Restraining Order and for Order to Show Cause, [Proposed] Temporary Restraining Order and Order to Show Cause, Declaration of Mark Boal, Declaration of Jean-Paul Jassy]

Case 2:16-cv-05407-GHK-GJS Document 9-1 Filed 07/21/16 Page 1 of 37 Page ID #:28

-i- POINTS AND AUTHORITIES I/S/O TRO/OSC

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STATEMENT OF COMPLIANCE WITH LOCAL RULE 7-19

As stated in additional detail in the concurrently-filed Ex Parte Application for

Temporary Restraining Order and for Order to Show Cause Why Defendants Should

Not Be Preliminarily Enjoined From Issuing and/or Enforcing a Subpoena to

Plaintiffs (“Application”) and the concurrently-filed Declaration of Jean-Paul Jassy

(“Jassy Decl.”), at ¶ 3, Plaintiffs Mark Boal and Flakjacket LLC d/b/a Page 1

(collectively, “Plaintiffs”) have complied with Local Rule 7-19 and 7-19.1. Counsel

for the opposing party is Justin Oshana, Major, U.S. Army Office of the Staff Judge

Advocate, United States Army Forces Command, 4700 Knox Street, Fort Bragg, NC

28310-5000, (910) 570-5922, [email protected]. As stated in additional

detail in the Jassy Declaration, Plaintiffs’ counsel gave Major Oshana notice of the

date and substance of Plaintiffs’ ex parte application on July 20, 2016. Jassy Decl., ¶

3. Plaintiffs seek an order restraining the issuance and/or enforcement of a threatened

subpoena to Plaintiffs that would violate Plaintiffs’ rights under the First Amendment

and other authorities. The reasons for this ex parte application are stated in additional

detail in the concurrently-filed Application and the Memorandum of Points and

Authorities, infra.

Dated: July 21, 2016 JASSY VICK CAROLAN LLP By _____/s/ Jean-Paul Jassy ________

JEAN-PAUL JASSY Attorneys for Plaintiffs MARK BOAL and FLAKJACKET LLC d/b/a PAGE 1


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TABLE OF CONTENTS Page

I. INTRODUCTION ............................................................................................... 1

II. PERTINENT FACTS .......................................................................................... 1

III. LEGAL ANAYLSIS ........................................................................................... 3

A. This Court Has Jurisdiction To Hear Plaintiffs’ Claims ........................... 3

B. The Court Should Address Plaintiffs’ Claims Now, As Other Courts Have Done Under Similar Circumstances .................................... 5

C. Plaintiffs Satisfy The Standards For A Temporary Restraining Order ......................................................................................................... 8

1. Plaintiffs Are Likely To Succeed On Their Claim That Enforcement Of The Subpoena Is Barred By The First Amendment ..................................................................................... 9

a. The Ninth Circuit Recognizes A Constitutionally-Based Reporter’s Privilege That Protects Journalists Like Boal And Serves The Public Interest ........................... 9

i. The Privilege Extends To Filmmakers, Such As Plaintiffs .............................................................. 11

ii. The Privilege Extends To Non-Confidential Materials ................................................................... 12

b. Defendants Cannot Overcome The First Amendment Privilege .............................................................................. 12

i. Defendants Have Not Exhausted All Alternative Sources .................................................. 13

ii. Defendants Cannot Demonstrate That The Requested Materials Are Not Cumulative ............... 14

iii. Defendants’ Overreaching Subpoena Is Not “Clearly Relevant To An Important Issue” .............. 15


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2. Plaintiffs Are Also Likely To Succeed Under The Common Law ............................................................................................... 17

3. The Threatened Subpoena Does Not Satisfy Even The Most Basic Standards For Precision In Criminal Cases ........................ 21

4. The Balance Of Equities And Public Interest Favors Plaintiffs ........................................................................................ 23

5. Plaintiffs Are Likely To Suffer Irreparable Injury ....................... 23

IV. CONCLUSION ................................................................................................. 25


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TABLE OF AUTHORITIES

Page(s)

Cases

Alliance for Wild Rockies v. Cottrell, 632 F3d 1127 (9th Cir. 2011) ................................................................................... 8

Associated Press v. Otter, 682 F.3d 821 (9th Cir. 2012) .................................................................................... 8

Ayash v. Dana-Farber Cancer Institute, 822 N.E.2d 667 (Mass. 2005) ................................................................................. 20

Baker v. F&F Investment, 470 F.2d 778 (2d Cir. 1972) ............................................................................. 17, 18

Bell v. Hood, 327 U.S. 678 (1946) ................................................................................................. 4

benShalom v. Sec'y of Army, 489 F. Supp. 964 (E.D. Wis. 1980) ...................................................................... 4, 7

Branzburg v. Hayes, 408 U.S. 665 (1972) ............................................................................... 9, 10, 16, 17

Brown v. Virginia, 204 S.E.2d 429 (Va. 1974) ..................................................................................... 20

Carlin Commc'ns, Inc. v. Smith, 1984 WL 330 (S.D.N.Y. May 8, 1984) ................................................................ 5, 6

Clemente v. Clemente, 56 Va. Cir. 530 (2001) ............................................................................................ 20

Doe v. Harris, 772 F3d 563 (9th Cir. 2014) ................................................................................... 23

Downen v. Warner, 481 F.2d 642 (9th Cir. 1973) ................................................................................ 6, 7

Drakes Bay Oyster Co. v. Jewell 747 F3d 1073 (9th Cir. 2014) ................................................................................... 8


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Duarte Nursery, Inc. v. U.S. Army Corps of Engineers, 17 F. Supp. 3d 1013, 1018-19 (E.D. Cal. 2014) ....................................................... 4

Elrod v. Burns, 427 U.S. 347 (1976) ........................................................................................... 1, 23

Gonzales v. NBC, 194 F.3d 29 (2d Cir. 1999) ............................................................................... 12, 18

Gorenc v. Salt River Project Agric. Improvement & Power District, 869 F.2d 503 (9th Cir. 1989) .................................................................................. 19

In re Grand Jury Subpoena, Judith Miller, 438 F.3d 1141 (D.C. Cir. 2006)............................................................................ 7, 8

In re Grand Jury Subpoena, No. 38664 (Miss. 1st Cir. Ct. Oct. 4, 1989) ........................................................... 20

Harbert v. Priebe, 466 F. Supp. 2d 1214 (N.D. Cal. 2006) .................................................................. 13

Hawkins v. Williams, No. 29,054 (Miss. Cir. Ct. Hinds Co. Mar. 16, 1983) (unpublished opinion) ................................................................................................................... 20

Holland v. Centennial Homes, Inc., 22 Med. L. Rptr. 2270 (N.Y. Sup. Ct. 1985) .......................................................... 15

Hopewell v. Midcontinent Broadcasting Corp., 538 N.W.2d 780 (S.D. 1995) .................................................................................. 20

Idaho v. Salsbury, 924 P.2d 208 (Idaho 1996) ..................................................................................... 20

Jaffee v. Redmond, 518 U.S. 1 (1996) ............................................................................................. 17, 20

In re John Doe Grand Jury Investigation, 574 N.E.2d 373 (Mass. 1991) ................................................................................. 20

Kidwell v. McCutcheon, 962 F. Supp. 1477 (S.D. Fla. 1996) ........................................................................ 13

Krase v. Graco Children Prod., Inc., 79 F.3d 346 (2d Cir. 1996) ..................................................................................... 15


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Leeson v. Transamerica Disability Income Plan, 671 F.3d 969 (9th Cir. 2012) .................................................................................... 4

Leiva-Perez v. Holder 640 F3d 962 (9th Cir. 2011) ..................................................................................... 8

Lenhart v. Thomas, 944 F. Supp. 525 (S.D. Tex. 1996) ................................................................... 13, 14

Los Angeles Memorial Coliseum Comm’n v. National Football League, 89 F.R.D. 489 (C.D. Cal. 1981).................................................................. 17, 18, 21

Marshall v. Hendrick, Case No. 97-CV-5618 (D.N.J. Sept. 4, 2003) ........................................................ 12

Martinez v. Brown, 449 F. Supp. 207 (N.D. Cal. 1978) ........................................................................... 6

In re McCray, Richardson, Santana, Wise, Salaam Litigation, 991 F.Supp.2d 464 (S.D.N.Y. 2013) ...................................................................... 12

McDonough v. Widnall, 891 F. Supp. 1439 (D. Colo. 1995) .......................................................................... 7

MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118 (2007) ................................................................................................. 6

Michigan v. United States Army Corps of Engineers, 667 F3d 765 (7th Cir. 2011) ................................................................................... 23

Miller v. Superior Court, 21 Cal. 4th 883 (1999) ............................................................................................ 21

Mississippi v. Hand, No. CR89-49-C(T-2) (Miss. 2d Cir. Ct. July 31, 1990) ......................................... 20

Missouri ex rel. Classic III, Inc., 954 S.W.2d 650 (Mo. Ct. App. 1997) .................................................................... 20

Monterey Mechanical Co. v. Wilson, 125 F3d 702 (9th Cir. 1997) ................................................................................... 23

New Hampshire v. Siel, 444 A.2d 499 (N.H. 1982) ...................................................................................... 20


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New Jersey v. Boiardo, 414 A.2d 14 (N.J. 1980) ................................................................................... 13, 14

New York Times Co. v. Gonzales, 382 F. Supp. 2d 457, 464 (S.D.N.Y. 2005), vacated and remanded on other grounds in New York Times Co. v. Gonzales, 459 F.3d 160, 167 (2d Cir. 2006) ........................................................................................................... 5

New York v. Troiano, 11 Med. L. Rptr. 1896 (N.Y. Sup. Ct. 1985) .......................................................... 15

Noyd v. Bond, 395 U.S. 683 (1969) ................................................................................................. 8

Opinion of Justices, 373 A.2d 644 (N.H. 1977) ...................................................................................... 20

Philip Morris Co. v. ABC, Inc., 36 Va. Cir. 1 (1995) ................................................................................................ 20

Riley v. Chester, 612 F.2d 708 (3d Cir. 1979) ............................................................................. 17, 22

Shoen v. Shoen, 48 F.3d 412 (9th Cir. 1995) ............................................................................. passim

Shoen v. Shoen, 5 F.3d 1289 (9th Cir. 1993) ............................................................................. passim

Silkwood v. Kerr-McGee Corp., 563 F.2d 433 (10th Cir. 1977) .......................................................................... 11, 18

Simula, Inc. v. Autoliv, Inc., 175 F3d 716 (9th Cir. 1999) ................................................................................... 23

Singh v. Carter, 2016 WL 837924 (D.D.C. Mar. 3, 2016) ................................................................. 7

Sinnott v. Boston Retirement Board, 524 N.E.2d 100 (Mass. 1988) ................................................................................. 20

In re Spalding Sports Worldwide, Inc., 203 F.3d 800 (Fed. Cir. 2000) .................................................................................. 4


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Stuhlbarg Intern. Sales Co., Inc. v. John D. Brush and Co., Inc., 240 F.3d 832 (9th Cir. 2001) .................................................................................. 24

Tennenbaum v. Deloitte & Touche, 77 F.3d 337 (9th Cir. 1996) .................................................................................... 21

Tracy v. City of Missoula, 2001 Mont. Dist. LEXIS 3168 (Mar. 9, 2001) ....................................................... 12

U.S. v. Pretzinger, 542 F.2d 517 (9th Cir. 1976) .................................................................................. 10

United States v. Ahn, 231 F.3d 26 (D.C. Cir. 2000) .................................................................................. 10

United States v. Aponte-Vega, 20 Med. L. Rptr. 2202 (S.D.N.Y. 1992) ................................................................. 13

United States v. Burke, 700 F.2d 70 (2d. Cir 1983) .............................................................................. passim

United States v. Capers, 708 F.3d 1286 (11th Cir. 2013) .............................................................................. 10

United States v. Caporale, 806 F.2d 1487 (11th Cir. 1986) ........................................................................ 10, 15

United States v. Criden, 633 F.2d 346 (3d Cir. 1980) ............................................................................. 10, 18

United States v. Cuthbertson, 630 F.2d 139 (3d Cir. 1980) ............................................................................ passim

United States v. Eden, 659 F.2d 1376 (9th Cir. 1981) ................................................................................ 22

United States v. Fields, 663 F.2d 880 (9th Cir. 1981) .................................................................................. 22

United States v. Gambino, 741 F. Supp. 412 (S.D.N.Y. 1990) ......................................................................... 13

United States v. Hendron, 820 F. Supp. 715 (E.D.N.Y. 1993) ......................................................................... 21


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United States v. La Rouche Campaign, 841 F.2d 1176 (1st Cir. 1988) .......................................................................... 10, 18

United States v. Morros, 268 F.3d 695 (9th Cir. 2001) .................................................................................... 4

United States v. Nixon, 418 U.S. 683 (1974) ......................................................................................... 21, 22

United States v. North, 708 F. Supp. 402 (D.D.C. 1989)............................................................................. 21

Vermont v. St. Peter, 315 A.2d 254 (Vt. 1974) ......................................................................................... 20

Walmer v. U.S. Dep't of Def., 835 F. Supp. 1307 (D. Kan. 1993), aff'd, 52 F.3d 851 (10th Cir. 1995) .................. 7

Winegard v. Oxberger, 258 N.W.2d 847 (Iowa 1977) ................................................................................. 20

In re Wright, 700 P.2d 40 (Idaho 1985) ....................................................................................... 20

Zerilli v. Smith, 656 F.2d 705 (D.C. Cir. 1981)......................................................................... passim

Statutes

10 U.S.C. § 847 .............................................................................................................. 5

28 U.S.C. § 1331 ........................................................................................................ 3, 4

28 U.S.C. § 1361 ............................................................................................................ 3

42 U.S.C. § 2000aa ...................................................................................................... 19

Ala. Code § 12-21-142 ................................................................................................ 20

Alaska Stat. §§ 09.25.300, et seq. ................................................................................ 20

Ariz. Rev. Stat. Ann. § 12-2214 .................................................................................. 20

Ariz. Rev. Stat. Ann. § 12-2237 .................................................................................. 20

Ark. Code Ann. § 16-85-510 ....................................................................................... 20


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Cal. Evid. Code § 1070 ...................................................................................... 3, 20, 21

Colo. Rev. Stat. §§ 13-90-119, 24-72.5-101, et seq. ................................................... 20

Conn. Gen. Stat. Ann. § 52-146t ................................................................................. 20

D.C. Code Ann. §§ 16-4702-4704. .............................................................................. 20

Del. Code. Ann. tit. 10, §§ 4320, et seq....................................................................... 20

Fla. Stat. Ann. § 90.5015 ............................................................................................. 20

Ga. Code Ann. § 24-5-508 ........................................................................................... 20

735 Ill. Comp. Stat. 5/8-901, et seq. ............................................................................ 20

Ind. Code § 34-46-4-1 .................................................................................................. 20

Ind. Code § 34-46-4-2 .................................................................................................. 20

Kan. Stat. Ann. §§ 60-480, et seq. ............................................................................... 20

Ky. Rev. Stat. Ann. § 421.100 ..................................................................................... 20

La. Rev. Stat. Ann. §§ 45:1451-59 .............................................................................. 20

Md. Code Ann. Cts. & Jud. Proc. § 9-112 ................................................................... 20

16 Me. Rev. Stat. Ann. § 61 ........................................................................................ 20

Mich. Comp. Laws § 767.5a ........................................................................................ 20

Minn. Stat. §§ 595.021, et seq. .................................................................................... 20

Mont. Code Ann. §§ 26-1-901, et seq. ........................................................................ 20

N.C. Gen. Stat. § 8-53.11 ............................................................................................. 20

N.D. Cent. Code § 31-01-06.2 ..................................................................................... 20

N.J. Stat. Ann. §§ 2A:84A21, et seq. ........................................................................... 20

N.M. Stat. Ann. § 38-6-7 ............................................................................................. 20

N.Y. Civ. Rights Law § 79-h ....................................................................................... 20

Neb. Rev. Stat. §§ 20-144, et seq. ............................................................................... 20


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Nev. Rev. Stat. Ann. § 49.275, 49.385 ........................................................................ 20

Ohio Rev. Code. Ann. § 2739.04 ................................................................................ 20

Ohio Rev. Code. Ann. § 2739.12 ................................................................................ 20

Okla. Stat. Ann. tit. 12, § 2506 .................................................................................... 20

Or. Rev. Stat. §§ 44.510, et seq. .................................................................................. 20

42 Pa. Cons. Stat. Ann. § 5942 .................................................................................... 20

R.I. Gen. Laws §§ 9-19.1-1, et seq. ............................................................................. 20

S.C. Code Ann. § 19-11-100 ....................................................................................... 20

Tenn. Code Ann. § 24-1-208 ....................................................................................... 20

Tex. Civ. Proc. & Rem. Code §§ 22.021 et seq. ......................................................... 20

Tex. Code of Crim. Proc. Act 38.11 ............................................................................ 20

Tex. Code of Crim. Proc. Act 38.111 .......................................................................... 20

W. Va. Code § 57-3-10 ................................................................................................ 20

Wash. Rev. Code § 5.68.010 ....................................................................................... 20

Wis. Stat. Ann. § 885.14 .............................................................................................. 20

Other Authorities

28 C.F.R. § 50.10 ......................................................................................................... 19

120 Cong. Rec. H12253-54 (daily ed. Dec. 18, 1974) ................................................ 17

Cal. Const., art. I, § 2 ......................................................................................... 3, 20, 21

Fed. R. Evid. 501 ............................................................................................. 16, 17, 21

H.R. No. 93-650 (1974) ............................................................................................... 17

R.C.M. 703(f)(4)(C) .................................................................................................... 21

U.S. Const., amend. I. .................................................................................................... 9

Utah Rule of Evid. 509 ................................................................................................ 20


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I. INTRODUCTION

Tomorrow, July 22, 2016, a military prosecutor in North Carolina plans to

subpoena a Los Angeles-based civilian journalist to provide all of his unedited

interviews with a defendant facing court martial charges in a case that has garnered

international attention. The journalist, plaintiff Mark Boal, comes to this Court

asking for emergency relief to restrain the issuance and enforcement of the military

prosecutor’s subpoena that would violate Boal’s First Amendment rights.

The mere issuance, let alone enforcement, of the threatened subpoena will

cause irreparable harm. Case law nationwide, including in the Ninth Circuit, makes

clear that journalists need their interviewees and subjects to have confidence that

statements made “off the record” will remain that way. Society needs a vigorous and

independent press so that reporters are not perceived – and do not actually become –

agents of the government, and particularly not criminal prosecutors. Without this

Court’s protection, Boal will be forced to choose between handing over unpublished,

confidential materials to a military prosecutor or ultimately facing contempt charges

in this Court under 10 U.S.C. § 847. A civilian reporter like Boal should not be

forced to compromise promises and principles rooted in the First Amendment; nor

should he be forced to defend those rights in a military tribunal thousands of miles

away. Boal’s rights must be protected here and now as “[t]he loss of First

Amendment freedoms, for even minimal periods of time, unquestionably constitutes

irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976).

Therefore, Plaintiffs bring this application for a temporary restraining order

and order to show cause for issuance of a preliminary injunction. Plaintiffs ask this

Court to protect their constitutional rights by restraining the Defendants from issuing

or enforcing the threatened subpoena.

II. PERTINENT FACTS

Plaintiff Mark Boal is a Los Angeles-based journalist, documentarian,

screenwriter, filmmaker and producer who focuses on military and national security.



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Boal Decl., ¶ 2. His company, plaintiff Page 1, is also based in Los Angeles. Id., ¶ 5.

Boal’s Playboy Magazine article “Death and Dishonor” – the true story of a father

who searches for his missing Iraq war veteran son – was adopted by Oscar-winner

Paul Haggis into the film, In the Valley of Elah. Id., ¶ 2. Drawing from his

experiences as a reporter during the war in Iraq, Boal wrote The Hurt Locker, the

multi-Oscar-winning film directed by Kathryn Bigelow. Id. As writer and producer

of the film, Boal won two Oscars, for Best Picture and Best Original Screenplay. Id.

Boal most recently wrote and produced the critically acclaimed film Zero Dark Thirty

about the manhunt for Osama Bin Laden, which received five Oscar nominations, and

earned Boal his second WGA Award for Best Original Screenplay. Id., ¶ 3.

In 2014, Boal began researching the story of U.S. Army Sgt. Robert Bowdrie

(Bowe) Bergdahl’s alleged desertion of his post in Afghanistan several years earlier.

Id., ¶ 6. Bergdahl was captured and tortured by the Taliban and ultimately released in

a highly-publicized event where President Obama simultaneously released detainees

from Guantanamo Bay. Bergdahl is now facing a court martial for desertion. Boal

conducted extensive interviews with individuals familiar with the case, including

many hours of interviews with Bergdahl. Id. Boal’s intent was to later disseminate

portions of those interviews to the public, and to use the interviews for researching

and developing a story that could be told in multiple mediums, as a documentary, a

feature film, news articles, and possibly, a non-fiction book. Id. When interviewing

Bergdahl, Boal made promises of confidentiality in connection with unpublished

portions of the interviews. Id., ¶¶ 7-8.

In May 2015, Boal teamed up with reporters at the Peabody award-winning

podcast Serial. Together they co-produced the second season of Serial, a 10-hour

podcast published by WBEZ, a National Public Radio affiliate, exploring the

meaning of the Bergdahl saga against the backdrop of the war in Afghanistan and

Operation Enduring Freedom. Id., ¶ 6. Portions of Boal’s interviews with Bergdahl

were used in Serial – but not those portions that were to remain confidential. Id., ¶ 8.



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Before Boal shared any excerpts of the interviews with the Serial hosts, he sought

and obtained Bergdahl’s permission. Id. As a journalist, it is essential that Boal

maintain the confidences of interviewees and sources who have provided information

“off the record”. Id., ¶¶ 10-15. Otherwise, interviewees and sources will be

unwilling to speak candidly with Boal. Id. That would irreparably damage Boal’s

ability to continue reporting on important matters of public interest. Id.

Defendant Major Justin Oshana, trial counsel (i.e., prosecutor) in Bergdahl’s

court martial, has made clear in communications with counsel for Boal that

Defendants intend to issue a subpoena on July 22, 2016 seeking all of Boal’s

recorded interviews with Bergdahl (the “Subpoena”). Id., ¶ 9; Jassy Decl., ¶ 2.

Major Oshana provided Boal’s counsel with a draft of the Subpoena, which broadly

demands that Plaintiffs produce: “The complete unedited audio recordings of

conversations between Sergeant Bergdahl and Mark Boal referenced in the Serial

podcast as over 25 hours of recorded conversations.” Jassy Decl., ¶ 5; Ex. A.

Yesterday, July 20, 2016, Plaintiffs filed this action because issuance and

enforcement of the Subpoena would invade their right to gather and publish

newsworthy material under the First Amendment to the United States Constitution,

the federal common law, and state constitutional and statutory provisions, e.g., Cal.

Const., art. I, § 2, Evid. C. § 1070. Plaintiffs allege three claims: (1) for declaratory

relief pursuant to 28 U.S.C. § 2201; (2) for injunctive relief; and, alternatively, (3) for

a writ of mandamus and/or prohibition, pursuant to 28 U.S.C. § 1651(a).

Plaintiffs now seek a Temporary Restraining Order from this Court preventing

the issuance and/or enforcement of the Subpoena.

III. LEGAL ANAYLSIS

A. This Court Has Jurisdiction To Hear Plaintiffs’ Claims

This Court has subject matter jurisdiction. See, e.g., 28 U.S.C. §§ 1331, 1361.

The Ninth Circuit recognizes that “federal courts have broad adjudicatory authority

over ‘all civil actions arising under the Constitution, laws, or treaties of the United



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States.’” Leeson v. Transamerica Disability Income Plan, 671 F.3d 969, 974 (9th

Cir. 2012) (citing 28 U.S.C. § 1331 and Bell v. Hood, 327 U.S. 678, 685 (1946)).1

“Because of this extensive power, jurisdictional dismissals in actions predicated on

federal questions are exceptional.’” Leeson, 671 F.3d at 974-75 (quoting Safe Air for

Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004)). Thus, in Bell, the Supreme

Court held that claims based on federal law should not be dismissed on jurisdictional

grounds if “the right of the petitioners to recover under their complaint will be

sustained if the Constitution and laws of the United States are given one construction

and will be defeated if they are given another.” 327 U.S. at 685. That is the case

here, as Plaintiffs’ claims are based on violations of their rights under the First

Amendment to the United States Constitution and under the federal common law,

which Plaintiffs contend would be violated by the Defendants’ issuance and

enforcement of the Subpoena.

Jurisdiction is also proper under the All Writs Act, 28 U.S.C. § 1651(a). See,

e.g., In re Spalding Sports Worldwide, Inc., 203 F.3d 800, 803 (Fed. Cir. 2000)

(holding jurisdiction proper under 28 U.S.C. § 1651(a) and issuing writ of mandamus

directing U.S. District Court for Massachusetts to vacate Magistrate Judge’s order

requiring plaintiff to produce materials protected from disclosure by attorney-client

privilege); benShalom v. Sec'y of Army, 489 F. Supp. 964, 969-70, 977 (E.D. Wis.

1980) (holding jurisdiction proper under 28 U.S.C. §§ 1361 and 1651 and issuing writ

of mandamus ordering Department of Army to reinstate petitioner to Army reserves

1 See also United States v. Morros, 268 F.3d 695, 699-700 (9th Cir. 2001)

(quoting Bell, 327 U.S. at 681-82) (when a complaint “seek[s] recovery directly under the Constitution or laws of the United States, the federal court ... must entertain the suit”); Duarte Nursery, Inc. v. U.S. Army Corps of Engineers, 17 F. Supp. 3d 1013, 1018-19 (E.D. Cal. 2014) (because the plaintiffs claim a violation of “their rights under the … Fifth Amendment to the U.S. Constitution. … [t]his court plainly has jurisdiction to hear and adjudicate these claims, pursuant to the general grant of federal court jurisdiction set forth at 28 U.S.C. § 1331”).



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based on Army’s violation of her privacy and due process rights under the First,

Fourth, Fifth and Ninth Amendments).

Finally, 10 U.S.C. § 847 further supports this Court’s exercise of jurisdiction.

Pursuant to 10 U.S.C. § 847, if the Government ultimately seeks to enforce the

Subpoena against Plaintiffs, it will have to come to this District Court to proceed

against Plaintiffs. See 10 U.S.C. §§ 847(b) & (c).

B. The Court Should Address Plaintiffs’ Claims Now, As Other Courts Have

Done Under Similar Circumstances

Courts faced with similar complaints alleging violations of First Amendment

and other federal rights have exercised discretion and ruled on the merits of the

plaintiffs’ claims. For example, in New York Times Co. v. Gonzales, 382 F. Supp. 2d

457, 464 (S.D.N.Y. 2005), vacated and remanded on other grounds in New York

Times Co. v. Gonzales, 459 F.3d 160, 167 (2d Cir. 2006), the District Court addressed

the merits of the New York Times’ suit for a declaratory judgment that the

government’s threatened subpoena of the telephone records of two newspaper

reporters were protected against compelled disclosure by the First Amendment and

the federal common law. The government asked the court to exercise its discretion to

dismiss the action, in part because the threatened subpoenas had not yet issued. Id. at

475-76. The District Court, however, refused to dismiss the case, and emphasized

that declaratory relief was particularly appropriate “[b]ecause this dispute involves

First Amendment rights[.]” Id. at 475; see also New York Times, 459 F.3d at 167

(disagreeing with District Court’s decision on the merits but finding District Court

properly exercised jurisdiction over the action to address the merits).

Likewise, in Carlin Commc'ns, Inc. v. Smith, 1984 WL 330 (S.D.N.Y. May 8,

1984), the District Court held that even if the “plaintiffs are not subject to imminent

and irreparable injury” (which is not true here with Plaintiffs), that “does not mean,

however, that their complaint should be dismissed at this time for lack of a justiciable

case or controversy” because “[t]he Supreme Court has held that plaintiffs asserting



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the violation of First Amendment rights need not wait until they are subjected to

criminal prosecution before challenging the statute in issue.” Id. at *6. Moreover,

“the Supreme Court has held that ripeness and standing requirements are relaxed

when First Amendment rights are involved.” Id. (citing Steffel v. Thompson, 415

U.S. 452, 459 (1974) and Doe v. Bolton, 410 U.S. 179, 188-89 (1973)); see

also MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 128-29 (2007) (“Our

analysis must begin with the recognition that, where threatened action by government

is concerned, we do not require a plaintiff to expose himself to liability before

bringing suit to challenge the basis for the threat—for example, the constitutionality

of a law threatened to be enforced.”)

Courts have also recognized that even when a plaintiff or petitioner is a

member of the Armed Forces – which is not true of Boal, a civilian – the District

Courts should adjudicate claims based on alleged violations of the plaintiff’s or

petitioner’s constitutional rights by branches of the Armed Forces. For example, in

Downen v. Warner, 481 F.2d 642, 643 (9th Cir. 1973), the Ninth Circuit held that an

officer in the Marine Corps was not required to exhaust her remedies in the military

system before proceeding to U.S. District Court to press her claim that the Marine

Corps was violating her rights under the Due Process clause of the Fifth Amendment.

The Court held:

Resolving a claim founded solely upon a constitutional right is singularly suited to a judicial forum and clearly inappropriate to an administrative board. Mrs. Downen's complaint rests solely upon the resolution of her constitutional claim. Accordingly, Mrs. Downen was not barred from District Court through her failure to exhaust administrative remedies.

Id. at 643.2

2 See also Martinez v. Brown, 449 F. Supp. 207, 211 (N.D. Cal. 1978) (following Downen because “the Court should decide the constitutional issue which has been presented since it is one singularly suited to a judicial forum,” and enjoining



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Recently, a District Court cited Downen and issued a TRO in favor of an

Army officer who claimed that an Army special order violated his rights under the

First Amendment and the federal Religious Freedom Restoration Act. Singh v.

Carter, 2016 WL 837924, at *1, 16 (D.D.C. Mar. 3, 2016). Even though the TRO

required the Court to intrude on matters implicating the “unique demands of military

discipline” and the “day-to-day operations of the military services,” the District

Court rejected the defendant’s argument that it should decline to adjudicate the

parties’ dispute. Id. at *6-7. The court emphasized that “resolving a claim founded

solely upon a constitutional right is singularly suited to a judicial forum” and that

“the Supreme Court and [the D.C. Circuit] have heard numerous [constitutional]

challenges to military policies.” Id. (quoting Downen, 481 F.2d at 643 and Brannum

v. Lake, 311 F.3d 1127, 1130 (D.C. Cir. 2002)).

These principles apply with extra force when the government is threatening to

violate the constitutional rights of a civilian such as Boal, who cannot be said to have

consented to any reduced expectation of constitutional rights or due process based on

a voluntary decision to enter the Armed Forces. Moreover, the District Court – not a

military tribunal – is best suited to hear Boal’s arguments regarding federal

constitutional and common law matters. Id. As Circuit Judge Tatel stated in In re

the Navy from discharging the plaintiff); benShalom, 489 F. Supp. at 977 (issuing writ of mandamus ordering the Army to reinstate the petitioner to the Army reserves after addressing the petitioner’s claim and ruling that the Army had violated her constitutional rights under the First, Fourth, Fifth and Ninth Amendments); Walmer v. U.S. Dep't of Def., 835 F. Supp. 1307, 1311 (D. Kan. 1993), aff'd, 52 F.3d 851 (10th Cir. 1995) (“because plaintiff is asserting a claim based upon constitutional grounds, she need not pursue any further administrative remedies. … Constitutional issues are issues singularly suited to a judicial forum”; internal citation omitted); McDonough v. Widnall, 891 F. Supp. 1439, 1446-47, 1449 (D. Colo. 1995) (holding District Court had authority to issue injunction preventing Air Force court martial from using information obtained from third parties via military subpoenas that violated federal law because “[t]he Air Force may not avoid the requirements of” federal law “merely because it is a branch of the military,” but declining to issue injunction based on prudential mootness because the Air Force had already voluntarily dismissed the underlying court martial proceedings and agreed not to use the information obtained in violation of federal law against the plaintiff Air Force Major).



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Grand Jury Subpoena, Judith Miller, 438 F.3d 1141 (D.C. Cir. 2006): “the executive

branch possesses no special expertise that would justify judicial deference to

prosecutors’ judgments about the relative magnitude of First Amendment interests.”

Id. at 1175 (Tatel, J., concurring).

Indeed, the Supreme Court has recognized that “exhaustion of military

remedies” is not required in cases brought by “civilians” asserting constitutional

claims because the Court did “not believe that the expertise of military courts

extended to the consideration of constitutional claims of the type presented.” Noyd v.

Bond, 395 U.S. 683, 696 n. 8 (1969). Such is the case here. The District Court, not a

military tribunal, has the expertise to assess whether the Defendants’ Subpoena

violates Boal’s rights under the First Amendment and, separately, the common law.

C. Plaintiffs Satisfy The Standards For A Temporary Restraining Order A plaintiff seeking a temporary restraining order (TRO) or preliminary

injunction must establish: “that he is likely to succeed on the merits, that he is likely

to suffer irreparable harm in the absence of preliminary relief, that the balance of

equities tips in his favor, and that an injunction is in the public interest.” Associated

Press v. Otter, 682 F.3d 821, 823-824 (9th Cir. 2012). The Ninth Circuit employs a

balancing approach to this test where “serious questions going to the merits” and a

“balance of hardships that tip sharply toward” plaintiff can support a preliminary

injunction provided “plaintiff also shows that there is a likelihood of irreparable

injury and that the injunction is in the public interest.” Alliance for Wild Rockies v.

Cottrell, 632 F3d 1127, 1131-1132 (9th Cir. 2011); see also Leiva-Perez v. Holder

640 F3d 962, 966 (9th Cir. 2011) (court may “balance the elements of the preliminary

injunction test, so long as a certain threshold showing is made on each factor”);

Drakes Bay Oyster Co. v. Jewell 747 F3d 1073, 1085 (9th Cir. 2014) (“‘likelihood’ of

success per se is not an absolute requirement”).

Plaintiffs here satisfy all of the standards for a temporary restraining order and

preliminary injunction. Plaintiffs are likely to succeed on the merits of their claim



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that the First Amendment, or, alternatively, the federal common law bar enforcement

of the threatened subpoena. The issuance and enforcement of a military prosecutor’s

subpoena to civilian journalists like Plaintiffs would cause irreparable harm to

Plaintiffs’ ability to gather and report newsworthy information. An injunction is in

the public interest – to promote a vigorous and independent press that is not perceived

as – nor actually – an arm of a military prosecutor. And, the balance of equities tips

decidedly in Plaintiffs’ favor.

1. Plaintiffs Are Likely To Succeed On Their Claim That Enforcement

Of The Subpoena Is Barred By The First Amendment

a. The Ninth Circuit Recognizes A Constitutionally-Based

Reporter’s Privilege That Protects Journalists Like Boal And

Serves The Public Interest

The First Amendment prohibits the government from “abridging the freedom

of speech, or of the press.” U.S. Const., amend. I. Nearly a half century ago, the

United States Supreme Court in Branzburg v. Hayes, 408 U.S. 665, 681 (1972),

expressly recognized that newsgathering activities qualify for First Amendment

protection: “Without some protection for seeking out the news, freedom of the press

could be eviscerated.” Id.3

Justice Powell, who was the majority’s fifth member in Branzburg, explained

the limitations of the majority’s holding: “The Court does not hold that newsmen,

subpoenaed to testify before a grand jury, are without constitutional rights with

respect to the gathering of news or in safeguarding their sources. Certainly, we do

not hold … that the state and federal authorities are free to ‘annex’ the news media as

3 In the specific context of the grand jury subpoenas before it, a five-to-four majority of the Court held that reporters who observe a crime or who were aware of criminal conduct on the part of a source were compelled to respond to grand jury subpoenas and answer relevant questions. Id. at 708. The majority carefully circumscribed its holding: “[g]rand juries are subject to judicial control and subpoenas to motions to quash. We do not expect courts will forget that grand juries must operate within the limits of the First Amendment.” Id.



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‘an investigative arm of government.’” Id. at 709 (Powell, J., concurring) (citation

omitted). Justice Powell further stated “if a newsman is called upon to give

information bearing only a remote and tenuous relationship to the subject of the

investigation, or if he has some other reason to believe that his testimony implicates

confidential source relationship without a legitimate need of law enforcement, he will

have access to the court[.]” Id. at 710. Justice Powell stressed “the striking of a

proper balance between freedom of the press and the obligation of all citizens to give

relevant testimony with respect to criminal conduct.” Id.

The Ninth Circuit has held that Branzburg established a constitutionally-based

qualified privilege for journalists to resist the disclosure of information gathered or

obtained during the course of newsgathering activities: “Rooted in the First

Amendment, the privilege is a recognition that society’s interest in protecting the

integrity of the newsgathering process, and in ensuring the free flow of information to

the public, is an interest ‘of sufficient social importance to justify some incidental

sacrifice of sources of facts needed in the administration of justice.” Shoen v. Shoen

(“Shoen I”), 5 F.3d 1289, 1292 (9th Cir. 1993) (internal citations omitted); see also

U.S. v. Pretzinger, 542 F.2d 517, 520-521 (9th Cir. 1976) (affirming decision not to

compel reporter to disclose source in criminal case, holding that, “district judge must

balance the interest of confidentiality of news sources against the needs of the

criminal justice system to know the identity of the source”).4

In holding that the qualified privilege attached to subpoenaed, unpublished,

non-confidential information obtained by a book author, the Ninth Circuit stated: “the

4 Most federal circuit courts interpret Branzburg to confer a qualified privilege

for journalists to resist compelled disclosure in criminal cases not involving testimony before grand juries. See United States v. La Rouche Campaign, 841 F.2d 1176, 1182 (1st Cir. 1988); United States v. Burke, 700 F.2d 70, 77 (2d. Cir 1983); United States v. Cuthbertson, 630 F.2d 139, 147 (3d Cir. 1980); United States v. Ahn, 231 F.3d 26, 37 (D.C. Cir. 2000); United States v. Criden, 633 F.2d 346 (3d Cir. 1980); Shoen I, 5 F.3d at 1292; United States v. Capers, 708 F.3d 1286, 1303 (11th Cir. 2013); United States v. Caporale, 806 F.2d 1487 (11th Cir. 1986).



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journalist’s privilege recognized in Branzburg [is] a partial First Amendment shield

that protects journalists against compelled disclosure in all judicial proceedings, civil

and criminal alike.” Shoen I, 5 F.3d at 1292 (emphasis added).5 This privilege

reflects “the preferred position of the First Amendment and the importance of a

vigorous press.” Zerilli v. Smith, 656 F.2d 705, 712 (D.C. Cir. 1981).

i. The Privilege Extends To Filmmakers, Such As

Plaintiffs

The Ninth Circuit explained that the privilege “is designed to protect

investigative reporting, regardless of the medium used to report the news to the public

… What makes journalism is not its format but its content.” Shoen I, 5 F.3d at 1293.

Consequently, the journalist’s privilege may be invoked whenever material is being

gathered for dissemination to the public. Id. “The test … is whether the person

seeking to invoke the privilege had ‘the intent to use material – sought, gathered or

received – to disseminate information to the public and [whether] such intent existed

at the inception of the newsgathering process.” Id.

In Silkwood v. Kerr-McGee Corp., 563 F.2d 433 (10th Cir. 1977), the Tenth

Circuit held that the First Amendment privilege applied to a documentary

filmmaker’s outtakes, and held that the Supreme Court “has not limited the privilege

to newspaper reporting” but “has in fact held that the press comprehends different

5 As the Third Circuit held: [T]he interests of the press that form the foundation for the privilege are not diminished because of the nature of the underlying proceedings out of which the request for the information arises is a criminal trial. [The journalist’s] interest in protecting confidential sources, preventing the intrusion into the editorial process, and avoiding the possibility of self-censorship created by compelled disclosure of sources and unpublished notes does not change because a case is civil or criminal.

Cuthbertson, 630 F.2d at 147; see also Burke, 700 F.2d at 77 (“We see no legally-principled reason for drawing a distinction between civil and criminal cases when considering whether the reporter’s interest in confidentiality should yield to the moving party’s need for probative evidence”).



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kinds of publications which communicate to the public information and opinions.”

Id. at 437 (citing Lovell v. City of Griffin, 303 U.S. 444, 452 (1938) (“the liberty of

press is not confined to newspapers and periodicals … The press in its historic

connotation comprehends every sort of publication which affords a vehicle of

information and opinion”)).6

Boal interviewed Bergdahl with the intention of researching and developing a

story on a matter of intense public interest that could be told in multiple mediums,

such as a documentary, a feature film, news articles and/or a non-fiction book. Boal

Decl., ¶ 6. Boal easily qualifies for protection under the privilege, as does his work.

ii. The Privilege Extends To Non-Confidential Materials

The Ninth Circuit, like most federal courts that have addressed the issue, also

holds that the privilege protects both confidential and non-confidential material.

Shoen I, 5 F.3d at 1295; Shoen v. Shoen (“Shoen II”), 48 F.3d 412, 414 (9th Cir.

1995); Cuthbertson, 630 F.2d at 147; Gonzales v. NBC, 194 F.3d 29, 35 (2d Cir.

1999). In this case, the military prosecutor seeks all of Boal’s recorded interviews

with Bergdahl – published and unpublished, confidential and non-confidential. As

such, the recorded interviews fit squarely within the reporter’s privilege. Shoen I, 5

F.3d at 1293. Boal explains in his declaration that many portions of the interviews

were obtained in confidence. Boal Decl., ¶¶ 7-8. Whether they were or not, however,

the privilege still applies. Shoen I, 5 F.3d at 1295.

b. Defendants Cannot Overcome The First Amendment Privilege

In the Ninth Circuit, disclosure of confidential information or non-confidential

unpublished information may be compelled “only upon a showing that the requested

material is: (1) unavailable despite exhaustion of all reasonable alternative sources;

6 Other courts also shield filmmakers. See, e.g., In re McCray, Richardson,

Santana, Wise, Salaam Litigation, 991 F.Supp.2d 464 (S.D.N.Y. 2013); Marshall v. Hendrick, Case No. 97-CV-5618 (D.N.J. Sept. 4, 2003); Tracy v. City of Missoula, 2001 Mont. Dist. LEXIS 3168, *11 (Mar. 9, 2001).



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(2) non-cumulative; and (3) clearly relevant to an important issue in the case.” Shoen

II, 48 F.3d at 416. Shoen II also requires that the party seeking to overcome the

privilege “must [make] a showing of actual relevance; a showing of potential

relevance will not suffice.” Id. The three-part constitutional test under Shoen II is

necessarily a “high hurdle against compelled disclosure from third party journalists.”

Harbert v. Priebe, 466 F. Supp. 2d 1214 (N.D. Cal. 2006).7

Here, Defendants cannot satisfy any of the requirements established by the

Ninth Circuit in Shoen II, let alone all three. As such, Plaintiffs satisfy the

requirement of a likelihood of success on the merits of their claim that the threatened

subpoena is barred by the constitutional reporter’s privilege.

i. Defendants Have Not Exhausted All Alternative Sources

Virtually all cases applying the privilege agree that discovery should be denied

unless the requesting party has exhausted all alternative sources of obtaining the

needed information. For example, in Cuthbertson, 651 F.2d at 196, the Third Circuit

held that the criminal defendants had not satisfied the element of proving that the

“only practical access to the information” sought was from outtakes of interviews,

noting that the defendants could “themselves interview these same interviewees,

whose identity they know, to obtain the desired information.” Similarly, in New

Jersey v. Boiardo, 414 A.2d 14, 21 (N.J. 1980), the court quashed a subpoena served

by a criminal defendant who sought letters written by one of the prosecution’s

7Accordingly, courts in criminal cases regularly quash subpoenas aimed at journalists. See, e.g., United States v. Aponte-Vega, 20 Med. L. Rptr. 2202, 2203 (S.D.N.Y. 1992) (granting motion to quash criminal defendant’s subpoena for identity of the journalist’s confidential source); United States v. Gambino, 741 F. Supp. 412, 414-15 (S.D.N.Y. 1990) (reversing order for in camera inspection of reporter’s notes about confidential informant subpoenaed by criminal defendant). Courts are even more vigilant in preventing improper prosecution subpoenas because the prosecution does not have a constitutional right – like the criminal defendant’s right to a fair trial – to balance against the journalist’s First Amendment rights. See, e.g., Lenhart v. Thomas, 944 F. Supp. 525, 529-31 (S.D. Tex. 1996) (quashing prosecution’s request for disclosure of confidential portions of interview); Kidwell v. McCutcheon, 962 F. Supp. 1477, 1480 (S.D. Fla. 1996) (granting habeas corpus petition by reporter who was jailed for refusing to testify at government’s behest).



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witnesses to a journalist. The court’s decision was based in part on the fact that the

defendant had failed to show that the information contained in the letters was

unavailable from other sources, even if the precise letters were not available from

other sources. Id. at 23.

The Government cannot make the necessary showing here. Ample alternative

sources of information are available to the Government to obtain Bergdahl’s

statements and there is no indication that the Government exhausted all alternative

sources before threatening to issue an overly broad and sweeping subpoena seeking

all unedited audio recordings of conversations between Boal and Bergdahl.

Defendants must make a showing that all of these vast resources – and all people

connected to them – have been completely exhausted before burdening the

constitutional rights of Plaintiffs.8

ii. Defendants Cannot Demonstrate That The Requested

Materials Are Not Cumulative

Cumulative information cannot reach the level of significance required to

overcome the privilege. Shoen II, 48 F.3d at 416; Burke, 700 F.2d at 78 (subpoena

quashed because information sought by criminal defendant “would be merely

cumulative and would not defeat [the] First Amendment privilege”). Bergdahl

himself spoke extensively with the Government about the subjects covered in the

Serial podcast. There are “300-plus pages of sworn testimony” from Bergdahl, he

was interviewed for a day-and-a-half by a General, and he was repeatedly debriefed

over the course of three weeks by multiple agencies including U.S. Army

investigators and psychologists, the Joint Personnel Recovery Agency (JPRA), the

Federal Bureau of Investigation (FBI) and Survival, Evasion, Resistance and Escape

(SERE) specialists. Jassy Decl., Ex. B at 271:4-5, 277:14-278:2, 319:8-322:15.

8 The exhaustion requirement applies despite fear that “the investigation may be time consuming, costly, and unproductive.” Lenhart, 944 F. Supp. at 530; see also Shoen I, 5 F.3d at 1296; Zerilli, 656 F.2d at 713.



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Defendant Major Oshana filed a document in the Court Martial explaining that there

are over 1,500,000 pages of documents already produced in discovery from 28

different government agencies in the underlying matter. Jassy Decl., Ex. C at 1, 2.

Here, it defies credulity that the information sought from Plaintiffs could be anything

but cumulative given the extensive interviews and debriefings of Bergdahl, public

statements made by him (including as already broadcast on Serial), the availability of

witnesses with whom he spoke, the 28 agencies involved in the case, and the

1,500,000 pages produced.

iii. Defendants’ Overreaching Subpoena Is Not “Clearly

Relevant To An Important Issue”

Defendants also will not be able to show that the information sought is “clearly

relevant to an important issue” in its case. Shoen II, 48 F.3d at 416 (emphasis

added); Burke, 700 F.2d at 77 (holding that First Amendment-privileged materials are

not subject to disclosure because criminal defendant failed to make a “clear and

specific showing that [subpoenaed] documents were necessary or critical to the

maintenance of his defense”).9 As explained in Shoen II, the party seeking to

overcome the privilege “must [make] a showing of actual relevance; a showing of

potential relevance will not suffice.” 48 F.3d at 416. It is not sufficient that the

information sought would be “useful.” Krase v. Graco Children Prod., Inc., 79 F.3d

346, 351 (2d Cir. 1996). Instead, “there must be a finding that the claim for which

the information is to be used “virtually rises or falls” on the admission of the

materials. Id.10

9 See also Caporale, 806 F.2d at 1504 (holding in criminal case that party issuing subpoena for privileged information must show that material is “highly relevant” and “necessary to the proper presentation of the case”); Cuthbertson, 651 F.2d at 196 (holding that criminal defendant must prove that information is “crucial to the claim”); Zerilli, 656 F.2d at 713 (holding that material sought must “go to the ‘heart of the matter’” and be “crucial to the case”).

10 For example, courts reject subpoenas to journalists designed to elicit impeachment evidence. See Holland v. Centennial Homes, Inc., 22 Med. L. Rptr. 2270, 2275 (N.Y. Sup. Ct. 1985); New York v. Troiano, 11 Med. L. Rptr. 1896, 1899-



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The Government’s overbroad subpoena seeking all unedited audio recordings

of conversations between Bergdahl and Boal shows that it is nothing more than a

fishing expedition by the Government in hopes of obtaining useful information. In a

conference of counsel when notice of this TRO application was given, Defendant

Major Oshana (the military prosecutor) stated that he believed the unbroadcast

portions of the Boal-Bergdahl interviews might reveal inconsistencies that the

Government could use for impeachment purposes. Jassy Decl., ¶ 4. See United

States v. Fields, 663 F.2d 880, 881 (9th Cir. 1981) (a pre-trial subpoena to a non-

party in a criminal case may not be used to gather evidence simply for possible

impeachment). For example, Major Oshana cited Bergdahl’s statement, in a portion

of the interviews broadcast on Serial, that Bergdahl was cut on his chest with a razor

while in captivity whereas Bergdahl supposedly had not told anyone else about that.

Id.11 Such a supposed inconsistency is not “clearly relevant,” Shoen II, 48 F.3d at

416, to Bergdahl’s state of mind when he left his post, nor can it otherwise be

considered “crucial to the case,” Zerilli, 656 F.2d at 713. Even if this purported

inconsistency had some relevance, which is far from clear, there is no support for the

prosecutor’s speculation that the unedited portions of the recordings might reveal

some other inconsistencies of an unarticulated nature.

The Government’s sweeping threatened subpoena is indefensible under the

Ninth Circuit’s test in Shoen II. Thus, Plaintiffs will likely prevail for this reason

1900 (N.Y. Sup. Ct. 1985) (asserted need for cross-examination material inadequate to overcome privilege because not critical; applying federal and state journalist’s privilege). Even in criminal cases, and even when the information is non-confidential, the need for privileged newsgathering information for purposes of impeachment generally is not sufficient to overcome the qualified privilege. See, e.g., Burke, 700 F.2d at 78.

11 Major Oshana also mentioned an instance where Bergdahl, apparently for the first time on Serial, publicly compared himself to the fictional character Jason Bourne. Jassy Decl., ¶ 4. Such an attenuated “inconsistency” cannot serve as the basis for piercing the reporter’s privilege. When asked about other potential inconsistencies, Major Oshana demurred that the topics of such potential inconsistencies were classified and could not be disclosed. Id.



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alone. There is, however, an independent basis upon which Plaintiffs can likely

succeed in resisting the Subpoena: the federal common law.

2. Plaintiffs Are Also Likely To Succeed Under The Common Law

While the Ninth Circuit has recognized the qualified privilege as

constitutionally based, federal common law independently supports a journalist’s

privilege. This privilege arises under Federal Rule of Evidence Rule 501, which was

adopted after Branzburg and provides in relevant part that “privilege(s) … shall be

governed by the principles of the common law as they may be interpreted by the

courts of the United States in the light of reason and experience.” Fed. R. Evid. 501.

The House Report accompanying the 1975 adoption of Rule 501 explained that the

federal common law of privileges is “to be developed by the courts of the United

States under a uniform standard applicable both in civil and criminal cases.” Fed. R.

Evid. 501, Adv. Comm. Note, H.R. No. 93-650 (1974).

In Jaffee v. Redmond, 518 U.S. 1 (1996), the United States Supreme Court

established the framework for evaluating privileges under the federal common law.

As a guide to interpreting Rule 501, the Court referred to the “oft-repeated

observation that ‘the common law is not immutable but flexible, and by its own

principles adapts itself to varying conditions.’” Id. at 8.12 The Second Circuit held

that, “[a]bsent a federal statute to provide specific instructions, courts which must

attempt to devine the contours of non-statutory federal law governing the compelled

12 The legislative history of Rule 501 – dating back more than forty years –

anticipated that the law of privilege would evolve to recognize a journalist’s privilege. For example, Representative Hungate, Chair of the House Judiciary Subcommittee on Criminal Justice and principal draftsman of Rule 501, believed that the rule “permits the courts to develop a privilege for newspaperpeople on a case-by-case basis,” and made clear that “[t]he language cannot be interpreted as a congressional expression in favor of having no such privilege, nor can the conference action be interpreted as denying to newspaperpeople any protection they may have from State newsperson’s privilege laws.” 120 Cong. Rec. H12253-54 (daily ed. Dec. 18, 1974). See also Riley v. Chester, 612 F.2d 708, 714 (3d Cir. 1979) (legislative history of Rule 501 “manifests that its flexible language was designed to encompass, inter alia, a reporter's privilege not to disclose a source”).



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disclosure of confidential journalistic sources must rely on both judicial precedent

and well informed judgment as to the proper federal public policy to be followed in

each case.” Baker v. F&F Investment, 470 F.2d 778, 781 (2d Cir. 1972).13

Most circuit courts to address the issue post-Branzburg recognize some form of

a qualified journalist’s privilege in criminal proceedings. See Sec. III.1, supra.

Moreover, several circuit courts and district courts since Branzburg have expressly

recognized an independently-based, federal common law qualified journalist’s

privilege. See, e.g., Baker, 470 F.2d at 783; Cuthbertson, 630 F.2d at 147; Criden,

633 F.2d at 356; Silkwood, 563 F.2d at 437; Los Angeles Memorial Coliseum

Comm’n, 89 F.R.D. at 492-93.

The public interest is unquestionably advanced by recognition of such a

common law privilege. Courts repeatedly have recognized that subpoenas to non-

party journalists pose a pernicious threat to freedom of the press. Indeed, “news

gathering is essential to a free press”: 'The press was protected so that it could bare the secrets of government and inform the people.' Without an unfettered press, citizens would be far less able to make informed political, social, and economic choices. But the press’ function as a vital source of information is weakened whenever the ability of journalists to gather news is impaired.

Zerilli, 656 F.2d at 711 (emphasis added) (quoting New York Times Co. v. United

States, 403 U.S. 713, 717 (1971) (Black, J., concurring)).

13 See also Cuthbertson, 630 F.2d at 146-47 (recognizing “a federal common-

law qualified privilege arising under Fed. R. Evid 501” and extending application of that privilege to non-confidential material sought by the government in criminal case); Los Angeles Memorial Coliseum Comm’n v. National Football League, 89 F.R.D. 489, 492 (C.D. Cal. 1981) (recognizing well established qualified federal common law privilege and applying privilege in civil libel case covering journalists’ confidential sources and non-confidential work product).



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These public policy concerns apply to the compelled disclosure of underlying

resource materials. Shoen II, 48 F.3d at 416; Shoen I, 5 F.3d at 1294-95 (identifying

a number of harms, including the risk of appearing as a “research tool” of the

government); La Rouche, 841 F.2d at 1182 (“We discern a lurking and subtle threat

to journalists and their employers if disclosure of outtakes, notes, and other unused

information, even if nonconfidential, becomes routine and casually, if not cavalierly,

compelled”). This is due in part to the fact that “court-enforced access to journalistic

resources would risk the symbolic harm of making journalists appear to be an

investigative arm of the judicial system, the government, or private parties.”

Gonzales, 194 F. 3d at 35. The Ninth Circuit has also recognized the substantial

burden that compliance with subpoenas can impose on reporters, noting that

“frequency of subpoenas would not only preempt the otherwise productive time of

journalist and other employees but measurably increase expenditures for legal fees.”

Shoen I, 5 F.3d at 1295 (citation omitted); see also Cuthbertson, 630 F.2d at 147

(“the compelled production of a reporter’s resource materials can constitute a

significant intrusion into the newsgathering and editorial processes”).

Federal public policy in favor of a journalist’s privilege is further evidenced by

the substantial federal statutory and regulatory protections afforded journalists. See,

e.g., 42 U.S.C. § 2000aa (protecting journalists’ work product against seizure by the

government for use in criminal cases). For example, the Department of Justice

(DOJ) has guidelines endorsed by the President recognizing that “freedom of the

press can be no broader than the freedom of the reporters to investigate and report the

news.” See 28 CFR § 50.10.14 These guidelines should govern to the extent the

14 The guidelines require the authorization of the Attorney General in issuing subpoenas to member of the news media. The test is similar to that set forth by the Ninth Circuit in Shoen II, 48 F.3d at 416. In deciding whether to authorize issuance of a subpoena, the Attorney General is to consider a number of factors, including: whether the government made “[a]ll reasonable alternative attempts to obtain the information from alternative, non-media sources” (28 C.F.R. § 50.10 (c)(4)(iii)); whether there is a “reasonable grounds to believe, based on public information, or



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defense of the Subpoena, or enforcement thereof under 10 U.S.C. § 847, is

undertaken by the DOJ. They provide powerful evidence of a federal policy at the

highest level that favors protection of journalists’ unpublished information and a

balancing of competing interests to ensure a vigorous and independent press.

The Ninth Circuit also has recognized that federal courts should look to state

law for guidance when the State has directly addressed the issue. Gorenc v. Salt

River Project Agric. Improvement & Power District, 869 F.2d 503, 505 (9th Cir.

1989); see also Jaffee, 518 U.S. at 12-13 (same). There is widespread consensus

among the States regarding the existence and value of the journalist’s privilege.

Thirty-nine states (including California), as well as the District of Columbia, have

codified the privilege.15 Courts in ten additional states have recognized the

information from non-media sources, that a crime has occurred, and that the information sought is essential to a successful investigation or prosecution” (28 C.F.R. § 50.10 (c)(4)(ii)(A)); “[t]he subpoena should not be used to obtain peripheral, nonessential, cumulative, or speculative information” (id.); whether negotiations were pursued with the affected member of the news media, including an explanation to the member of the government’s needs in the particular prosecution (28 C.F.R. § 50.10(c)(4)(iv)(A)); whether the subpoena is “limited to the verification of published information and to such surrounding circumstances as relate to the accuracy of the published information”; generally proposed subpoenas should be limited as such (28 C.F.R. §50.10(c)(4)(v)); and whether the subpoena is “narrowly drawn”; “directed at material and relevant information regarding a limited subject matter” and “covering a reasonably limited period of time” (28 C.F.R. § 50.10 (c)(4)(viii)).

15 See Ala. Code § 12-21-142; Alaska Stat. §§ 09.25.300, et seq.; Ariz. Rev. Stat. Ann. §§ 12-2214, 12-2237; Ark. Code Ann. § 16-85-510; Cal. Const. art. I, § 2(b); Cal. Evid. Code § 1070; Colo. Rev. Stat. §§ 13-90-119, 24-72.5-101, et seq.; Conn. Gen. Stat. Ann. § 52-146t; Del. Code. Ann. tit. 10, §§ 4320, et seq.; D.C. Code Ann. §§ 16-4702-4704.; Fla. Stat. Ann. § 90.5015; Ga. Code Ann. § 24-5-508; 735 Ill. Comp. Stat. 5/8-901, et seq.; Ind. Code § 34-46-4-1, 34-46-4-2; Kan. Stat. Ann. §§ 60-480, et seq.; Ky. Rev. Stat. Ann. § 421.100; La. Rev. Stat. Ann. §§ 45:1451-59; 16 Me. Rev. Stat. Ann. § 61; Md. Code Ann. Cts. & Jud. Proc. § 9-112; Mich. Comp. Laws § 767.5a; Minn. Stat. §§ 595.021, et seq.; Mont. Code Ann. §§ 26-1-901, et seq.; Neb. Rev. Stat. §§ 20-144, et seq.; Nev. Rev. Stat. Ann. § 49.275, 49.385; N.C. Gen. Stat. § 8-53.11; N.J. Stat. Ann. §§ 2A:84A21, et seq.; N.M. Stat. Ann. § 38-6-7; N.Y. Civ. Rights Law § 79-h; N.D. Cent. Code § 31-01-06.2; Ohio Rev. Code. Ann. §§ 2739.04, 2739.12; Okla. Stat. Ann. tit. 12, § 2506; Or. Rev. Stat. §§ 44.510, et seq.; 42 Pa. Cons. Stat. Ann. § 5942; R.I. Gen. Laws §§ 9-19.1-1, et seq.; S.C. Code Ann. § 19-11-100; Tenn. Code Ann. § 24-1-208; Tex. Civ. Proc. & Rem. Code §§ 22.021 et seq., Tex. Code of Crim. Proc. Act 38.11 & 38.111; Utah Rule of Evid. 509; Wash. Rev. Code § 5.68.010; W. Va. Code § 57-3-10; Wis. Stat. Ann. § 885.14.



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journalist’s privilege in at least some context.16 Wyoming is the only State that has

not weighed in.

The federal common law, as well as an examination of state law, makes clear

that the reporter’s privilege is in the public interest, it is robust, and the overbroad,

threatened subpoena in this case cannot overcome that privilege. 17

3. The Threatened Subpoena Does Not Satisfy Even The Most Basic

Standards For Precision In Criminal Cases

Plaintiffs are also likely to prevail because the overly broad threatened

subpoena does not satisfy basic standards of precision for subpoenas in criminal

16 See Belanger v. City and County of Honolulu, Civ. No. 93-4047-10 (Haw. 1st Cir. Ct. May 4, 1994) (unpublished) (civil); Idaho v. Salsbury, 924 P.2d 208 (Idaho 1996) (criminal); In re Wright, 700 P.2d 40 (Idaho 1985) (criminal); Winegard v. Oxberger, 258 N.W.2d 847 (Iowa 1977) (civil); In re John Doe Grand Jury Investigation, 574 N.E.2d 373 (Mass. 1991) (grand jury); Sinnott v. Boston Retirement Board, 524 N.E.2d 100 (Mass. 1988) (civil); Ayash v. Dana-Farber Cancer Institute, 822 N.E.2d 667 (Mass. 2005) (civil); Hawkins v. Williams, No. 29,054 (Miss. Cir. Ct. Hinds Co. Mar. 16, 1983) (unpublished opinion) (based on Miss. Const.); Pope v. Village Apartments, Ltd., No. 92-71-436 CV (Miss. 1st Cir. Ct. Jan. 23, 1995) (unpublished opinion) (Gibbs, J.) (civil); Mississippi v. Hand, No. CR89-49-C(T-2) (Miss. 2d Cir. Ct. July 31, 1990) (unpublished opinion) (criminal); In re Grand Jury Subpoena, No. 38664 (Miss. 1st Cir. Ct. Oct. 4, 1989) (unpublished opinion) (grand jury); Missouri ex rel. Classic III, Inc., 954 S.W.2d 650 (Mo. Ct. App. 1997) (civil); New Hampshire v. Siel, 444 A.2d 499 (N.H. 1982) (criminal); Opinion of Justices, 373 A.2d 644 (N.H. 1977 (civil statutory proceeding); Hopewell v. Midcontinent Broadcasting Corp., 538 N.W.2d 780 (S.D. 1995) (civil); Vermont v. St. Peter, 315 A.2d 254 (Vt. 1974) (criminal); Brown v. Virginia, 204 S.E.2d 429 (Va. 1974) (criminal); Clemente v. Clemente, 56 Va. Cir. 530 (2001) (civil); Philip Morris Co. v. ABC, Inc., 36 Va. Cir. 1 (1995) (civil).

17 This court may also look to California law in analyzing the privilege claim. See Tennenbaum v. Deloitte & Touche, 77 F.3d 337, 340 (9th Cir. 1996) (holding, in federal question case involving attorney-client privilege, that court would look first to federal common law, but that “we may also look to state privilege law … if it is enlightening”); see also Los Angeles Memorial Coliseum Comm’n, 89 F.R.D. at 492 (“in ‘molding federal privileges under the common law development approach of Rule 501,’ [federal courts] have traditionally sought guidance from existing state law”). The immunity from contempt provided journalists who refuse to disclose confidential sources and unpublished, non-confidential information under the California Constitution, Art. 1, § 2(b), and Evidence Code § 1070(a) reflects “a paramount interest in maintenance of a vigorous, aggressive and independent press … .” Los Angeles Memorial Coliseum Comm’n, 89 F.R.D. at 495. In the context of a state prosecution subpoena issued to a journalist in California, these protections would be absolute. See, e.g., Miller v. Superior Court, 21 Cal. 4th 883, 897-901 (1999) (holding that the prosecution in a criminal case has no interest capable of overcoming the journalist’s constitutional and statutory rights).



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cases. Rule 17(c) of the Federal Rules of Criminal Procedure limits “discovery for

criminal cases.” United States v. Nixon, 418 U.S. 683, 698 (1974). Likewise, Rule

703(f)(4)(C) of the Rules for Courts-Martial provides that “unreasonable or

oppressive” subpoenas may be quashed. A subpoena issued pursuant to R.C.M. 703

or Rule 17(c) should be quashed unless the subpoena satisfies the applicable

“standards of relevance, materiality and necessity.” United States v. North, 708 F.

Supp. 402, 404 (D.D.C. 1989); see also United States v. Hendron, 820 F. Supp. 715,

717-18 (E.D.N.Y. 1993) (quashing subpoena for taped interviews of a government

witness before trial under Rule 17(c) and reporter’s privilege).

As the Supreme Court explained,

[I]n order to require production prior to trial, the moving party must show: (1) that the documents are evidentiary and relevant; (2) that they are not otherwise procurable reasonably in advance of trial by exercise of due diligence; (3) that the party cannot properly prepare for trial without such production and inspection in advance of trial and that the failure to obtain such inspection may tend unreasonably to delay the trial; and (4) that the application is made in good faith and is not intended as a general ‘fishing expedition.’

Nixon, 418 U.S. at 699-700 (citation, footnote omitted). The Court explained that the

“three hurdles” a defendant must clear “in order to carry his burden” are “(1)

relevancy; (2) admissibility; (3) specificity.” Id. at 700; United States v. Eden, 659

F.2d 1376, 1381 (9th Cir. 1981). Defendants here cannot clear these hurdles.

If a subpoena is overly broad or has the indicia of a “wild goose chase” it

should be stricken. Cuthbertson, 651 F.2d at 192. Moreover, the issuing party

cannot rely on “mere conclusory statements” to meet his burden. Eden, 659 F.2d at

1381. And, a pre-trial subpoena may not be used to gather evidence simply for

possible impeachment. United States v. Fields, 663 F.2d 880, 881 (9th Cir. 1981).

The sweeping subpoena proposed by Defendants fails to meet these standards.

At most, it appears the Government intends to cast its net broadly in hopes of

obtaining helpful information that may impeach anticipated testimony of Bergdahl.



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Jassy Decl., ¶ 4. Issuance of a subpoena for this purpose is not permitted. And,

clearly the sweeping subpoena, as proposed, lacks any specificity—it seeks

approximately 25-hours of recorded conversations between Bergdahl and Boal

without limitations as to topics, specific statements or identification of any actual

evidence relevant to the Government’s case. Because the threatened subpoena is

overly broad and sweeping in nature – without regard to the Government’s actual

need – it fails to meet the standard necessary for issuance or enforcement.

4. The Balance Of Equities And Public Interest Favors Plaintiffs

As discussed above, see Sec. III.C.1-3, case after case extols the importance of

protecting reporters’ First Amendment rights. See, e.g., Riley, 612 F.2d at 714 (“The

interrelationship between newsgathering, news dissemination and the need for a

journalist to protect his or her source is too apparent to require belaboring.”); Burke,

700 F.2d at 77 (protection against compelled disclosure of confidential information

reflects “a paramount public interest in the maintenance of a vigorous, aggressive and

independent press capable of participating in robust, unfettered debate over

controversial matters, an interest which has always been a principal concern of the

First Amendment”).

The balance of equities and public interest tip sharply in Plaintiffs’ favor.

Given the assurances of confidentiality that Boal gave to Bergdahl and given the lack

of relevance attendant to the extraordinarily broad threatened subpoena, it is

imperative that Boal, a civilian, not be forced to choose between protecting his

professional reputation and constitutional rights or facing enforcement and contempt

proceedings stemming from a military subpoena.

5. Plaintiffs Are Likely To Suffer Irreparable Injury

Plaintiffs must show some measure of irreparable harm, but “the alleged harm

need not be occurring or be certain to occur,” Michigan v. United States Army Corps

of Engineers, 667 F3d 765, 788 (7th Cir. 2011), and there is no requirement that it be

of any particular “magnitude,” Simula, Inc. v. Autoliv, Inc., 175 F3d 716, 724 (9th



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Cir. 1999). Here, the threat is to Plaintiffs’ constitutional rights, and that is

particularly troubling. Courts have held that the loss of constitutionally protected

freedoms, for even a short period of time, is difficult to compensate monetarily and,

as such, may constitute irreparable injury. Monterey Mechanical Co. v. Wilson, 125

F3d 702, 715 (9th Cir. 1997) (“an alleged constitutional infringement will often alone

constitute irreparable harm”) (internal quotes omitted). The likelihood of irreparable

harm is heightened because Plaintiffs’ First Amendment rights are at stake: “The loss

of First Amendment freedoms, for even minimal periods of time, unquestionably

constitutes irreparable injury” for purposes of the issuance of a preliminary

injunction. Elrod, 427 U.S. at 373; Doe v. Harris, 772 F3d 563, 583 (9th Cir. 2014)

(same). Moreover, loss of goodwill and injury to reputation may also be sufficient to

show irreparable harm. See Stuhlbarg Intern. Sales Co., Inc. v. John D. Brush and

Co., Inc., 240 F.3d 832, 841 (9th Cir. 2001).

The threat to Plaintiffs’ First Amendment rights is manifest. Investigative

reporting often – as in the case of Boal’s interviews of Bergdahl – requires building

piece upon piece to understand a story and then effectively convey that story to the

public. Boal Decl., ¶ 11. Some of those pieces are available for public consumption

while others must be maintained in confidence as background or “off the record” in

order to obtain and ascertain what can be told on the record. Id.

As a journalist, it is of paramount importance to Boal’s job and reputation to be

able to interview witnesses and maintain information in confidence. Id., ¶ 12. If he

cannot be trusted by his sources and interviewees to keep information told “off the

record” or in confidence confidential then interview subjects and sources will be

reluctant to speak with Boal, and his ability to gather and report the news and other

matters of public concern will suffer irreparably. Id.; see Zerilli, 656 F.2d at 711

(extoling importance of newsgathering); Cuthbertson, 630 F.2d at 147 (same).

Likewise, if Boal is seen as an arm of a prosecutor – i.e., as someone who will

get statements and information in the course of newsgathering that can then be used



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against an interview subject or to otherwise aid the government – then his ability to

get newsworthy information and then report on newsworthy events will suffer

irreparably because sources and subjects will be afraid to talk to Boal for fear that

everything they say will end up on a prosecutor’s desk. Boal Decl., ¶ 13; Shoen I,

F.3d at 1294-1295 (risk of appearing as a research tool of the government is a real

harm to journalists); La Rouche, 841 F.2d at 1182 (same).

The very issuance, let alone the enforcement, of the threatened subpoena in this

case puts Boal in an impossible position. The “burden on [Boal’s] time and resources

in responding to” the threatened subpoena is substantial. Shoen I, 5 F.3d at 1295

(internal quote omitted). Boal Decl., ¶ 16. As a civilian, he must either pay

significant legal fees and face contempt proceedings stemming from his refusal to

divulge unpublished and confidential information in a military court thousands of

miles from his home, or he must sacrifice his reputation, his sources, the integrity of

his work and his constitutional rights. Id., ¶¶ 14-17. Even being put to that choice

will cause Boal irreparable injury because it will signal to his contacts, interviewees

and subjects that his work is ripe for the picking by a military prosecutor. Id.

The issuance alone of a subpoena would irreparably harm Boal’s reputation

and his ability to function as a journalist. The enforcement of the subpoena would

compound those harms, and, additionally, would subject him to contempt

proceedings and attendant punishment including fines and incarceration. Id., ¶ 15.

IV. CONCLUSION

Plaintiffs respectfully request that the Court grant their application in full.

Dated: July 21, 2016 JASSY VICK CAROLAN LLP By _____/s/ Jean-Paul Jassy ________

JEAN-PAUL JASSY Attorneys for Plaintiffs MARK BOAL and FLAKJACKET LLC d/b/a PAGE 1


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JEAN-PAUL JASSY, Cal. Bar No. 205513 [email protected] KEVIN L. VICK, Cal. Bar No. 220738 [email protected] DUFFY CAROLAN, Cal Bar No. 154988 [email protected] SUNNY K. LU, Cal. Bar No. 247667 [email protected] JASSY VICK CAROLAN LLP 6605 Hollywood Boulevard, Suite 100 Los Angeles, California 90028 Telephone: 310-870-7048 Facsimile: 310-870-7010 Colby C. Vokey (pro hac vice forthcoming) LtCol USMC (Ret.) [email protected] Law Firm of Colby Vokey PC 6924 Spanky Branch Court Dallas, Texas 75248 Telephone: 214-697-0274 Facsimile: 214-594-9034 Attorneys for Plaintiffs MARK BOAL and FLAKJACKET LLC d/b/a PAGE 1



MARK BOAL, an individual; and FLAKJACKET LLC d/b/a PAGE 1, a California Limited Liability Company,

Plaintiffs,

v.


Defendants.


DECLARATION OF MARK BOAL IN SUPPORT OF EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER AND FOR ORDER TO SHOW CAUSE [Filed concurrently herewith: Plaintiffs’ Ex Parte Application for Temporary Restraining Order and for Order to Show Cause, Memorandum of Points & Authorities, [Proposed] Temporary Restraining Order and Order to Show Cause, Declaration of Jean-Paul Jassy]


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I, Mark Boal, declare as follows:

1. I am a Plaintiff in this action. I am a resident of Los Angeles County. I

am over the age of eighteen and I have personal knowledge of the facts stated herein.

If called upon, I could and would testify thereto.

Summary Of My Work

2. I am an award-winning journalist, filmmaker and producer, covering

stories of national interest since 1998 and the military and national security since

2011. My Playboy Magazine article “Death and Dishonor” – the true story of a father

who searches for his missing Iraq war veteran son – was adopted by Oscar-winner

Paul Haggis into the film, In the Valley of Elah. Drawing from my experiences as a

reporter during the war in Iraq, I wrote The Hurt Locker, the multi-Oscar-winning

film directed by Kathryn Bigelow. As writer and producer of the film, I won two

Oscars, for Best Picture and Best Original Screenplay.

3. I most recently wrote and produced the critically acclaimed Zero Dark

Thirty, which went on to receive five Oscar nominations, and earned me my second

WGA Award for Best Original Screenplay.

4. My 2011 investigative report for Rolling Stone entitled the “Kill Team”

exposed Afghanistan war crimes, which were eventually punished in the military

justice system. Earlier pieces in Playboy were the first to focus national attention on

the Veteran Administration’s failures to diagnose PTSD among returning veterans.

My 2008 investigative story for Rolling Stone entitled “Everyone Will Remember Me

as Some Sort of Monster” was selected for the Best American Crime Writing

anthology edited by Otto Penzler.

My Company: Page 1

5. Flakjacket LLC d/b/a Page 1 (“Page 1”) is a California limited liability

company founded by me to explore the intersection of reporting and entertainment.

In addition to its work earlier this year co-producing the journalistic podcast Serial

(which is an off-shoot of National Public Radio’s This American Life and has more



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than 50 million listeners world-wide) my company and I recently commissioned a

wide range of works of public-interest non-fiction from prominent writers and

Pulitzer prize-winning journalists on subjects such as policing and race relations in

Detroit circa 1967, Second-Wave feminism and the constitutional issues important to

that movement, as well as the ATF’s role in the raid in Waco, Texas in 1993, and

many more. Additionally, Page 1 is executive producing a forthcoming, prize-

winning documentary about the psycho-dynamics of terrorist attacks, which won best

documentary at the Tel Aviv Film Festival.

My Interviews Of Bowe Bergdahl

6. In the Summer of 2014, I began my research into Sgt. Robert Bowdrie

(“Bowe”) Bergdahl’s disappearance from an Army outpost in Afghanistan with the

intention of researching and developing a story that could be told in multiple

mediums, as a documentary, a feature film, news articles, and possibly, a non-fiction

book. I conducted extensive interviews with individuals familiar with the case, and

in May 2015, teamed up with reporters at the Peabody award-winning Serial podcast.

Together we co-produced a 10-hour podcast exploring the meaning of the Bergdahl

saga against the backdrop of the war in Afghanistan and Operation Enduring

Freedom.

7. When I interviewed Sergeant Bergdahl, I made promises of

confidentiality in connection with portions of the interviews.

8. From late 2015 through 2016, I used excerpts of some of the recorded

interviews with Sergeant Bergdahl in the popular podcast Serial. Before I shared any

of the excerpts with the Serial hosts, I sought and gained Sergeant Bergdahl’s

permission to broadcast interview portions regarding specific subjects. Sergeant

Bergdahl deemed other topics to be off-limits, and therefore I did not share such

material with Serial or the public.

9. I am informed and believe that Defendant Major Justin Oshana, trial

counsel in the court-martial case of United States v. Sergeant Robert Bowdrie (Bowe)



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Bergdahl, has made clear in communications with my counsel that Defendants intend

to issue a subpoena on July 22, 2016 seeking all of my recorded interviews with

Sergeant Bergdahl.

Irreparable Injury

10. During the course of my interviews of Bergdahl, confidential sources

were revealed. I believe that those sources would suffer serious adverse action,

including devastating adverse employment action, if their identities were revealed.

11. Investigative reporting often – as in the case of my interviews of

Bergdahl – requires building piece upon piece to understand a story and then

effectively convey that story to the public. Some of those pieces are available for

public consumption while others must be maintained in confidence as background or

“off the record” in order to obtain and ascertain what can be told on the record.

12. As a journalist, it is of paramount importance to my job and my

reputation to be able to interview witnesses and maintain information in confidence.

If I cannot be trusted by my sources and my interviewees to keep information told

“off the record” or in confidence confidential then interview subjects and sources will

be reluctant to speak with me, and my ability to report the news and other matters of

public concern will suffer irreparably. That will harm society because the news will

be stymied and the public will be uninformed or misinformed on critically important

subjects.

13. Likewise, if I am seen as an arm of a prosecutor – i.e., as someone who

will get statements and information in the course of newsgathering that can then be

used against an interview subject or to otherwise aid the government – then my

ability to get newsworthy information and then report on newsworthy events will

suffer irreparably because sources and subjects will be afraid to talk to me for fear

that everything they say will end up on a prosecutor’s desk.

14. The very issuance, let alone the enforcement, of the threatened subpoena

in this case puts me in an impossible position. I, as a civilian, must either face



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contempt proceedings stemming from my refusal to divulge unpublished and

confidential information in a military court thousands of miles from my home; or I

must sacrifice my reputation, my sources, the integrity of my work and my

constitutional rights. Even being put to that choice will cause me irreparable injury

because it will signal to my contacts, interviewees and subjects that my work is ripe

for the picking by a military prosecutor. Moreover, the prospect of a sweeping

subpoena actually being enforced against me only heightens my concern that my

injuries will be realized.

15. I am before this Court to respectfully request that the Court protect my

well-recognized, constitutionally-based rights as a journalist. I am a civilian from

Los Angeles. I am not in the military and my rights should not be subjugated as if I

were. My right to gather and disseminate newsworthy material should not be

sacrificed to a military prosecutor on a fishing expedition. The issuance alone of a

subpoena would irreparably harm my reputation and my ability to function as a

journalist. The enforcement of the subpoena would compound those harms, and,

additionally, would subject me to contempt proceedings and attendant punishment

including fines and incarceration.

16. Finally, in addition to being concerned about maintaining the integrity of

my work and reputation and in addition to being deeply worried about having to

either comply with the subpoena or face contempt proceedings, I am spending

substantial sums of money in an effort to protect my constitutional rights and to

protect the confidences of others. I have consulted with and felt the need to hire

counsel from around the country. Their fees are a significant and continuing drain on

my financial resources.

///


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Plaintiffs,

v.


Defendants.

Case No.: 2:16-CV-05407-GHK-GJS Assigned to the Hon. George H. King

DECLARATION OF JEAN-PAUL JASSY IN SUPPORT OF EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER AND FOR ORDER TO SHOW CAUSE; EXHIBITS A-D [CERTIFICATE OF NOTICE PURSUANT TO FED. R. CIV. PROC. 65(b)(1)(B), 65(d)(2) AND LOCAL RULE 7-19.1] [Filed concurrently herewith: Plaintiffs’ Ex Parte Application for Temporary Restraining Order and for Order to Show Cause, Memorandum of Points & Authorities, [Proposed] Temporary Restraining Order and Order to Show Cause, Declaration of Mark Boal]


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I, Jean-Paul Jassy, declare as follows:

1. I am an attorney at law, admitted to practice throughout the Courts of the

State of California and admitted to practice before this Court. I am a partner of Jassy

Vick Carolan LLP, attorneys of record for Plaintiffs Mark Boal (“Boal”) and

Flakjacket LLC d/b/a Page 1 (“Page 1”) (collectively, “Plaintiffs”). I have personal

knowledge of the facts stated herein, except for those matters stated on information

and belief, which matters I believe to be true, and if called to testify, I could

competently do so.

2. Defendant Major Justin Oshana, trial counsel (i.e., prosecutor) in the

court martial case of United States v. Sergeant Robert Bowdrie (Bowe) Bergdahl, has

made clear in communications with counsel for Boal, including me, that Defendants

intend to issue a subpoena on July 22, 2016 seeking all of Boal’s recorded interviews

with Bergdahl (the “Subpoena”), with a return date of August 16, 2016.

3. I certify the following pursuant to Federal Rule of Civil Procedure

65(b)(1)(B), 65(d)(2) and Local Rule 7-19.1: On July 20, 2016, I spoke on the

telephone with Major Oshana. During that telephone call, I advised Major Oshana of

the date and substance of the concurrently-filed ex parte application for a temporary

restraining order and for an order to show cause. I informed Major Oshana that the

temporary restraining order papers would be filed today, July 21, 2016. Major

Oshana informed me that he would oppose the ex parte application, and he informed

me that he is in contact with representatives of the Department of Justice (DOJ)

pertaining to this matter and would communicate the substance of my notice to his

chain of command and to the Army civil litigation office which works with DOJ on

such matters. Major Oshana believed they would all oppose as well and inform me if

they did not. Major Oshana’s contact information is: Justin Oshana, Major, U.S.

Army Office of the Staff Judge Advocate, United States Army Forces Command,

4700 Knox Street, Fort Bragg, NC 28310-5000, (910) 570-5922,



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[email protected]. I forwarded a copy of the Complaint and

accompanying papers initiating this case to Major Oshana via email yesterday.

4. During our telephone call yesterday, July 20, I asked Major Oshana why

he intended to subpoena all of the recorded interviews between Boal and Bergdahl.

Major Oshana stated that he believed the unbroadcast portions of the Boal-Bergdahl

interviews might reveal inconsistencies that the Government could use for

impeachment purposes against Bergdahl or could be used as information in

sentencing proceedings if Bergdahl is convicted. For example, Major Oshana cited

Bergdahl’s statement, in a portion of the interviews broadcast on the podcast Serial,

that Bergdahl was cut on his chest with a razor while in captivity whereas Bergdahl

supposedly had not told anyone else about that. Major Oshana also briefly mentioned

an instance in the Serial podcast when Bergdahl compared himself to the fictional

movie character, Jason Bourne. I understood this to be a reference to an instance

when Bergdahl stated that, at the time he made the decision to quit his post, he

thought he could make it twenty miles to the next Army outpost undetected, like

Jason Bourne. Major Oshana suggested that Bergdahl had not used the Jason Bourne

analogy previously to other investigators or government officials. Major Oshana

stated that he believed there would be other, similar inconsistencies reflected in the

unbroadcast portions of the recordings. When asked about other potential

inconsistencies, Major Oshana demurred that the topics of such potential

inconsistencies were classified and could not be disclosed.

5. I am informed and believe that Major Oshana provided my co-counsel,

Colby Vokey, Esq. LtCol USMC (Ret.) with a draft of the subpoena that Major

Oshana intends to subscribe and have issued on July 22, 2016. A true and correct

copy of that draft is attached to this Declaration as Exhibit A.

6. I am informed and believe the following: the US Army conducted an

Article 32 proceeding concerning Bergdahl. An Article 32 Pretrial Investigation is

the military equivalent of a probable cause hearing to determine if charges should be



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referred to a court-martial. As part of the Article 32 proceeding, several individuals

provided live testimony. Among those who testified were Major General Kenneth R.

Dahl, who lead a 22-man investigation team for the Army, and Terrence Russell with

the Joint Personnel Recovery Agency. A true and correct copy of pertinent portions

of the testimony of General Dahl (page 271, 277-278) and Mr. Russell (pages 319-

322) are attached hereto as Exhibit B. These pages describe Bergdahl’s

communications and cooperation with the investigating and debriefing team.

7. I am informed and believe that the document attached to this

Declaration as Exhibit C is a true and correct copy of the filed Government Proposal

for New Pretrial Order in the Bergdahl court martial proceeding, signed by Major

Oshana. This document shows the volume of evidence produced in the Bergdahl

matter.

8. Attached to this Declaration as Exhibit D is a true and correct and

conformed copy of the Complaint in this matter filed yesterday, July 20, 2016.

I declare under penalty of perjury under the laws of the United States of

America that the foregoing is true and correct.

Dated: July 21, 2016 /s/ Jean-Paul Jassy _________________________________

JEAN-PAUL JASSY


Exhibit A


SUBPOENA

The President of the United States, to Parallax Media, LLC (operating as Page One Productions), c/o Jackoway, Tyerman, Wertheimer,

Austen, Mendelbaum, Morris & Kelin, AP. You are hereby required to produce the below listed documentary evidence for use in the

court-martial case of the United States v. Sergeant Robert Bowdrie (Bowe) Bergdahl as appointed by Court-Martial Convening Order

#1, Headquarters, United States Army Forces Command, Fort Bragg, North Carolina 28310, dated 11 November 2015. These records

must be produced no later than May 1st, 2016.

Documentary evidence: The complete unedited audio recordings of conversations between Sergeant Bergdahl and Mark Boal

referenced in the Serial podcast as over 25 hours of recorded conversations. If available, include the date and time for all recordings.

This subpoena only requires the production of certain evidence and does not include a provision requiring personal appearance at this

time. Failure to comply may result in a subpoena being issued for personal appearance and the production of documents or other evidence.

In that case, failure to appear and testify is punishable by a fine of not more than $500 or imprisonment for a period not more than six

months, or both. (10 U.S.C. § 847). Failure to appear may also result in your being taken into custody and brought before the court-

martial under a Warrant of Attachment (DD Form 454). Manual for Courts-Martial R.C.M. 703(e)(2)(G).

Return a copy of this subpoena with the required audio evidence. If personal appearance is required, bring this subpoena with you

and do not depart from the proceeding without proper permission.

Subscribed at Fort Bragg, North Carolina this 28th day of March, 2016.

___________________________ JUSTIN OSHANA, Major (Signature (See R.C.M. 703(e)(2)(C)) Judge Advocate, U.S. Army Trial Counsel The witness is requested to sign one copy of this subpoena and to return the signed copy to the person serving the subpoena.

I hereby accept service of the above subpoena. ________________________________________ (Signature of Witness/Authorized Recipient) NOTE: If the witness/authorized recipient does not sign, complete the following: Personally appeared before me, the undersigned authority, ____________________, who, being first duly sworn according to law,

deposes and says that at __________, on _______________, 20___, he/she personally delivered to _________________________, a

duplicate of this subpoena, by ____________________ (method of delivery).

_____ _________________________________________ (Grade) (Signature) Subscribed and sworn to before me at ___________________________, this _____ day of __________, 20___.

_____ ____________________ __________________________________________ (Grade) (Official Status) (Signature)

DD FORM 453-R, MAY 2000 PREVIOUS EDITION IS OBSOLETE. APD PE v1.00


Exhibit B


i

RECORD OF PRELIMINARY HEARING UNDER ARTICLE 32

BERGDAHL, ROBERT BOWDRIE Sergeant

Headquarters and

Headquarters Company,

Special Troops Battalion,

U.S. Army Forces Command

U.S. Army Fort Bragg,

North Carolina 28310

Investigated at

Joint Base San Antonio, Texas on 17 September 2015 and

18 September 2015

PERSONS PRESENT

LIEUTENANT COLONEL MARK VISGER, PRELIMINARY HEARING OFFICER;

MAJOR MARGARET KURZ, TRIAL COUNSEL;

LIEUTENANT COLONEL CHRISTIAN BEESE, ASSISTANT TRIAL COUNSEL;

CAPTAIN MICHAEL PETRUSIC, SECOND ASSISTANT TRIAL COUNSEL;

MR. EUGENE FIDELL, CIVILIAN DEFENSE COUNSEL;

LIEUTENANT COLONEL FRANKLIN ROSENBLATT, DEFENSE COUNSEL;

CAPTAIN ALFREDO FOSTER, ASSISTANT DEFENSE COUNSEL

SERGEANT ROBERT BOWDRIE BERGDAHL, THE ACCUSED;

MS. STACY CRAVER, COURT REPORTER;

MAJOR NATALIE KARELIS, LEGAL ADVISER;

MR. TIMOTHY MERSEREAU, SECURITY ADVISER TO PRELIMINARY HEARING

OFFICER;

MR. DAN THOMPSON, SECURITY ADVISER TO TRIAL COUNSEL;

MR. DON GARDNER, SECURITY ADVISER TO DEFENSE COUNSEL.


1

The Article 32 hearing was called to order at 0901, 1

17 September 2015, with the following parties present: 2

LIEUTENANT COLONEL MARK VISGER, PRELIMINARY HEARING OFFICER; 3

MAJOR MARGARET KURZ, TRIAL COUNSEL; 4

LIEUTENANT COLONEL CHRISTIAN BEESE, ASSISTANT TRIAL COUNSEL; 5

CAPTAIN MICHAEL PETRUSIC, SECOND ASSISTANT TRIAL COUNSEL; 6

MR. EUGENE FIDELL, CIVILIAN DEFENSE COUNSEL; 7

LIEUTENANT COLONEL FRANKLIN ROSENBLATT, DEFENSE COUNSEL; 8

CAPTAIN ALFREDO FOSTER, ASSISTANT DEFENSE COUNSEL 9

SERGEANT ROBERT BOWDRIE BERGDAHL, THE ACCUSED; 10

MS. STACY CRAVER, COURT REPORTER; 11

MAJOR NATALIE KARELIS, LEGAL ADVISER; 12

MR. TIMOTHY MERSEREAU, SECURITY ADVISER TO PRELIMINARY HEARING 13

OFFICER; 14

MR. DAN THOMPSON, SECURITY ADVISER TO TRIAL COUNSEL; 15

MR. DON GARDNER, SECURITY ADVISER TO DEFENSE COUNSEL. 16


271

know, I believe we found the truth; and then based on the truth, we 1

made our findings and recommendations. 2

I asked, at that point, for additional time to write the 3

report because I thought that, as you know, there is 300-plus pages 4

of sworn testimony of Sergeant Bergdahl that came at the end. And I 5

thought it was necessary for me to tie his testimony -- his sworn 6

statement to all the information that I had gathered previously as 7

best as I could to corroborate it so it didn’t just have to stand, 8

you know, on its own. Me and the team saw the connections, but that 9

wouldn’t have been obvious to people who weren’t as intimate with the 10

effort as we were. So I asked for the additional time. 11

That is why I want to say it was the 14th of August, which 12

was about day 59, when I briefed the findings. And then 45 days 13

later is when I turned in the report, and that was the additional 14

time I asked for to do the writing. I, for the most part, released 15

my team back to do their work because we were done investigating. 16

And I only kept a small number of people to help me with the actual -17

- the paralegals doing the footnotes, you know, creating the actual 18

document itself. I turned that in on the 24th of September or 19

whatever the date is there on the top right of the front page. 20

Q. 28th. 21

A. 28 September. Okay. So it's not exactly right 22

here [pointing to his head]. 23


277

interviewed. So I had sworn statements already, you know, that were 1

taken shortly after. 2

Q. So was Sergeant Bergdahl under a duty to speak with you? 3

A. He was not. He was not. You know, I did -- you said, “I 4

would prefer you not do this.” I said, “Well, you can’t keep me from 5

going to see him"; but if I go see him, all he is going to do is 6

invoke his rights and that is not very helpful. I mean, we are 7

trying to develop a relationship here so we can get to the truth." 8

And so I didn’t want to do that. So, no, he was not under an 9

obligation to do that. Well, he would have been had I gone; and then 10

he would have had to invoke his rights. 11

Q. Right. But it didn’t play out that way? 12

A. It did not play out that way. 13

Q. Did he, in fact, submit to an interview with you? 14

A. At the end of the investigation, 2 weeks later, yes, 15

absolutely. 16

Q. Right. Where was that? 17

A. That was done here at the Joint Base San Antonio, Fort Sam 18

Houston. 19

Q. How long did it last? 20

A. About a day and a half. The first day, you know, I think 21

we went from 7:30 in the morning until five o’clock or so. I mean, 22

we barely broke. You know, we took a couple comfort breaks and a 23


278

short lunch. Other than that, you know, we went all day long from 1

about, you know, 7:30 in the morning until about 1730 or so. 2

Q. Resulting in a transcript of 371 pages? 3

A. That is correct. We picked it up the next morning, and the 4

next morning we went for -- until about lunchtime if I recall 5

correctly -- right before lunch I think. 6

And, frankly, at the end of that, I had no more questions 7

to ask him and he had more story to tell me. So we exhausted each 8

other, and we were done. 9

Q. In the process, did he execute a waiver of his right to 10

silence? 11

A. He did in the very beginning. 12

Q. And I take it, in addition to being physically exhausted, 13

he also exhausted your list of questions? 14

A. He did. He did. 15

Q. Did your ability to interview Sergeant Bergdahl help you 16

complete your assigned duty as investigating officer? 17

A. Yeah, absolutely. 18

Q. Do you have an opinion as to whether he was truthful to 19

you, based on your interaction with him and your investigation? 20

A. I do. I think he was truthful. 21

Q. Did you speak with enough people to know his reputation for 22

truthfulness? 23


319

A. Yes, sir. Yes, sir. 1

But that program, which by the way over the course -- 2

current lifespan of 5 years, has trained 1.5 million Soldiers, 3

Sailors, Airmen, and Marines very successfully. 4

At the time, Sergeant Bergdahl wouldn't have had that. 5

That went online 1 September 2010. So Level A at the time of his 6

deployment was: Here's the Code of Conduct. 7

Q. After Sergeant Bergdahl came back, how long did JPRA spend 8

debriefing him? 9

A. The debriefing of Sergeant Bergdahl was broken down into 10

three phases. The phase -- the first phase was conducted by CENTCOM 11

in theater, and I don't have a lot of details that I recollect about 12

that. 13

Within a few days he would have been transferred to Phase 14

II. Normally, Phase II would also be the responsibility of the 15

combatant command. In this particular case, Sergeant Bergdahl was 16

determined that he needed medical attention and was transferred to 17

Landstuhl Regional Medical Center, and then it became the 18

responsibility of European Command, EUCOM. 19

EUCOM then started conducting Phase II reintegration, which 20

included the Phase II intelligence and SERE debriefings. That, 21

again, was the responsibility of EUCOM. They had intelligence 22

debriefers. They had SERE debriefers. 23


320

It was then determined, at the end of Phase II, that 1

Sergeant Bergdahl required additional support; and he was transferred 2

to what's called Phase III Reintegration. And that was conducted at 3

Fort Sam Houston by the U.S. Army. The U.S. Army uses U.S. Army 4

South, USARSO, as their office of responsibility to conduct Army 5

Phase III Reintegration. So he was transferred to Fort Sam Houston. 6

It was at that time that JPRA got directly involved in the 7

reintegration support and debriefing. USARSO asked specifically for 8

reintegration support. They identified an FBI intelligence analyst 9

that was detailed to JPRA to come down. They identified a SERE 10

psychologist, an Army 0-6 that is on our staff at JPRA, to come down 11

to provide support to the two Army SERE psychologists that were 12

working directly with Sergeant Bergdahl. And they required or 13

requested a SERE debriefer, specifically me, to come down. 14

I was familiar with USARSO because I had supported them 15

during the reintegration debriefing of the SOUTHCOM Reconnaissance 16

Systems, the SRS crew, that had been held in Columbia for 5 years. I 17

was the senior debriefer for that event working with USARSO. They 18

were familiar with me. They were comfortable with me coming down. 19

JPRA sent down those three individuals to support the reintegration 20

task. 21

Q. About how long was the debriefing period? 22

A. In Phase II, I'd have to ---- 23


321

Q. Could you give a swag -- a total number of weeks that ---- 1

A. Well, at ---- 2

Q. ---- you spent debriefing? 3

A. Yeah. At Phase II, which I wasn't involved in, I think he 4

was there for approximately 3 weeks. 5

Then they sent him to Fort Sam Houston. I was -- I don't 6

remember the specific dates. I was down here for about 2-and-a-half 7

weeks. Once I was complete with my SERE debriefing, the intelligence 8

debriefing continued and that continued on for another 12 days or so, 9

something like that. 10

Q. During these debriefings, was Sergeant Bergdahl read his 11

rights? 12

A. No, he was never read his rights. 13

Q. Okay. 14

A. Interestingly -- and this was my first experience 15

specifically with this -- was we had lawyers present to make sure 16

that the debriefing team did not cross a line that would require 17

Sergeant Bergdahl to have his rights read. The lawyer -- well there 18

were two. They overlapped for a day or so. But the lawyers worked 19

with the debriefing teams. When we were planning what the debriefing 20

session was to include, they were very specific about what we could 21

ask and what we could not ask, where was our starting point for 22

asking questions, and to ensure that we were not going to violate his 23


322

rights and require his rights to be read to him. The lawyers -- 1

again they were one at a time; they overlapped for a day or two. But 2

the lawyer was always present during the debriefing. 3

The way the debriefing was set up, you had a room where you 4

would have Sergeant Bergdahl sitting in a chair with a table in front 5

of him -- a coffee table; two chairs for the debriefers. One was 6

leading the debriefing; the other would be taking notes and operating 7

the recording. And then the fourth person in the room was the SERE 8

psychologist. The Army sent down two SERE psychologists. One would 9

operate the morning sessions; one would operate the afternoon 10

sessions. 11

Q. Were these debriefings recorded? 12

A. The debriefings were audio recorded, and JPRA has 13

possession of all of those recordings because that is one of our 14

responsibilities. 15

Q. Okay. 16

A. But at the time, the debriefings were videoed in that there 17

was video monitoring in a nearby adjacent room. And in that room 18

there, was a number of people, including the lawyer, watching and 19

witnessing the debriefing at all times. 20

Q. Is it possible -- you've got a lot of experience with this 21

-- when people are being debriefed that they might not be telling the 22

truth or are trying to mislead you? 23


Exhibit C


G APP-#17 Pg 1 of 9


G APP-#17 Pg 2 of 9


G APP-#17 Pg 3 of 9


G APP-#17 Pg 4 of 9


G APP-#17 Pg 5 of 9


Scheduling Worksheet – U.S. v. Bergdahl

Event Proposed Date

Trial Dates (Listvoir dire/empanelment dates separate from trial date if believed necessary)

G: 5-18 December 2016

D:

Motions Hearing Dates – MRE 505(j). (Use CI in Trial/Pretrial Proceedings)

G: The Government requests motions due by 3 November 2016 with responses due 10 November 2016. (Note: MRE 505(j) also applies to pretrial proceedings, therefore additional hearings and motions may be required depending on the subject matter of the Article 39(a) sessions.)

D: Trial and Defense Notice of Expert Testimony

G: Notice by 30 September 2016. The Government requests Defense submit all requests for expert assistance by 1 August 2016 to ensure contracting actions can be completed.

D: Notice of Request for Daubert Hearing – Both sides.

G: N/A

D:

Defense Notice of defenses required by RCM 701(b)(2) (MR/PLMR)

G: The Government requests notice by 30 September 2016 to ensure any expert witness requests can be completed by contracting.

D:

Defense Forum Election

G: The Government requests forum selection by 4 November 2016.

D:

Defense Discovery Requests

G: The Defense has already provided an initial discovery request.

D:

Defense Notice requirement under MRE 505 (e) & (h) (i)

G: 30 September 2016 (for use of classified information) (Note: Defense may have need for several additional notice dates based on subsequent discovery requests.)

D:

ENCL 1 to G APP #17 Page 6 of 9


Government Motion Under 505(i) (h)

G: 1 August 2016 (Note: The Government may file additional motions under MRE 505(h) depending on the extent of the discovery and assertions of privilege and potential requirements to provide adequate substitutes).

D: Defense Motion to Compel Discovery and Government Response

G: The Government requests any Motions to Compel on 1 June 2016, and for submission of supplemental requests corresponding with CI views.

D:

Defense Request Expert Assistance (if any) to TC

G: Government requests Defense provide all requests for expert assistance by 1 Aug 2016.

D:

Defense Motion to Compel Expert Assistant (Gov. Response within 3 duty days)

G: ___3____ days after receipt of CA action on requests.

D: ___5____ days after receipt of CA action on requests.

Motions for Appropriate Relief under RCM 903, 905, 906, 907 and Article 10.

G: 1 August 2016 (all parties)

D:

Government 404(b) notice to defense.

G: 1 August

D:

MRE 404(b) MIL by Defense (if any) and any other Evidentiary Motions.

G: 14 days after the Government provides notice pursuant to MRE 404(b)

D:

Defense request for production of Afghan witnesses, if any.

G: Government requests notice by 1 August 2016

D:

Defense Request for Production of Other Witnesses.

G: Government requests notice by 15 August 2016

D:



Gov. Response to Defense Afghan Witness Production Request

G: 8 August 2016

D:

Gov. Response to Defense Other Witness Production Request

G: 22 August 2016

D:

Defense Motion to Compel Production Afghan Witnesses

G: 15 August 2016

D:

Defense Motion to Compel Production Other Witnesses

G: 3 October 2016

D:

Motions Hearing on Witness Production

G: 12 October 2016

D:

Final Witness Lists IAW RCM 701 (Both Parties)

G: 17 October 2016

D:

Government Provide Proposed Security Plan, PA Plan and Logistics Plan

G: 15 July 2016, with Defense response, if any, due 20 July 2016

D:

Motions Hearing to Address Proposed Security, PA and Log Plan (if any)

G: 22 July 2016

D:

Additional Member Questionnaire Proposal

G: 1 November 2016

D:



General Voir Dire Question proposals

G: 1 December 2016

D:

TC provide seating chart, flyer and F&S Worksheets

G: 30 November 2016

D:



Exhibit D


COMPLAINT AND WRIT PETITION

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Plaintiffs, v.


Defendants.

Case No.: 2:16-CV-05407

COMPLAINT FOR DECLARATORY AND/OR INJUNCTIVE RELIEF, OR, IN THE ALTERNATIVE, PETITION FOR A WRIT OF MANDAMUS AND/OR PROHIBITION; EXHIBIT A

Case 2:16-cv-05407 Document 1 Filed 07/20/16 Page 1 of 11 Page ID #:1Case 2:16-cv-05407-GHK-GJS Document 9-7 Filed 07/21/16 Page 2 of 12 Page ID #:98

-1- COMPLAINT & WRIT PETITION

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Plaintiffs Mark Boal (“Boal”) and Flakjacket LLC d/b/a Page 1 (“Page 1”)

(collectively, “Plaintiffs”) allege against defendants United States of America,

President Barack Obama, Secretary Ashton B. Carter, Secretary Eric Fanning,

General Robert B. Abrams, Major Justin Oshana and Does 1-10 (collectively,

“Defendants”) as follows:

GENERAL ALLEGATIONS

1. Mark Boal is a reporter and filmmaker. He is an Academy-Award

winning screenwriter. He is a civilian and a resident of Los Angeles. His company,

plaintiff Page 1, is based in Los Angeles. This case is brought to protect and defend

Plaintiffs’ constitutional right to communicate important stories about matters of

immense public concern. Without this Court’s protection, Plaintiffs – and

specifically Boal – will be forced to provide a military prosecutor in North Carolina

with unpublished materials and confidential information or face contempt charges in

this Court under 10 U.S.C. § 847. Plaintiffs, civilians based in Los Angeles, ask this

Court to protect their reporter’s privilege, rooted in the First Amendment and

recognized in this Circuit and nationwide, to maintain in confidence their unpublished

materials and confidential information.

2. Plaintiffs seek a declaration, injunction or writ from this Court

preventing the issuance and/or enforcement of a subpoena demanding approximately

25 hours of recorded interviews Boal conducted with US Army Sgt. Robert Bowdrie

Bergdahl (“Bergdahl”). Bergdahl is presently facing a court martial in Ft. Bragg,

North Carolina for allegedly deserting his post in Afghanistan several years ago.

Bergdahl was captured and tortured by the Taliban and ultimately released in a

highly-publicized event where President Obama simultaneously released detainees

from Guantanamo Bay.

3. Boal recorded his interviews with Bergdahl with the intent to later

disseminate portions of those interviews to the public, and to use the interviews for



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Boal’s future work. Portions of Boal’s interviews with Bergdahl were licensed by

Page 1 to be used, and portions were used, in the second season of the critically-

acclaimed, highly popular, Peabody Award-winning podcast Serial, published by

WBEZ, a National Public Radio affiliate. It was clear that portions of the Bergdahl

interviews were to remain confidential, and portions of the Bergdahl interviews

reference confidential sources.

4. Defendant Major Justin Oshana, trial counsel (i.e., prosecutor) in

Bergdahl’s court martial, has made clear in communications with counsel for Boal

that Defendants intend to issue a subpoena on July 22, 2016 seeking all of Boal’s

recorded interviews with Bergdahl (the “Subpoena”). Major Oshana provided Boal’s

counsel with a draft of the Subpoena, a copy of which is attached, in which the

President (via Major Oshana) broadly demands that Plaintiffs produce: “The

complete unedited audio recordings of conversations between Sergeant Bergdahl and

Mark Boal referenced in the Serial podcast as over 25 hours of recorded

conversations.” The Subpoena would invade Boal’s right to gather and publish

newsworthy material under the First Amendment to the United States Constitution,

the common law and state constitutional and statutory provisions, e.g., Cal. Const.,

art. I, § 2, Evid. C. § 1070. Issuance and enforcement of the Subpoena would force

Boal to decide between facing a contempt certification in a military court in North

Carolina, and ultimately in this Court under 10 U.S.C. § 847(b), or sacrificing his

work and his constitutional and common law rights and become the arm of a military

prosecutor. The threatened Subpoena is unlawful and inconsistent with the First

Amendment, the common law, Department of Justice guidelines for the issuance of

subpoenas to reporters and state protections for reporters.

5. Accordingly, Plaintiffs respectfully request that this Court protect their

rights and enjoin the issuance and enforcement of the Subpoena, declare that such

Subpoena is inconsistent with Plaintiffs’ rights and/or issue a writ of mandamus

and/or prohibition barring the issuance or enforcement of the Subpoena.



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JURISDICTION & VENUE

6. This Court has subject matter jurisdiction under 28 U.S.C. § 1331 (“The

district courts shall have original jurisdiction of all civil actions arising under the

Constitution, laws, or treaties of the United States”), 28 U.S.C. § 1361 (“The district

courts shall have original jurisdiction of any action in the nature of mandamus to

compel an officer or employee of the United States or any agency thereof to perform

a duty owed to the plaintiff”); 28 U.S.C. § 1651(a) (“all courts established by Act of

Congress may issue all writs necessary or appropriate in aid of their respective

jurisdictions and agreeable to the usages and principles of law”); 5 U.S.C. § 702

(district court jurisdiction to review agency actions), and the federal common law.

7. Venue is proper in the United States District Court for the Central

District of California, Western Division, pursuant to 28 U.S.C. § 1391(c)(1) because

Plaintiffs are domiciled in Los Angeles County, California and, alternatively,

pursuant to 28 U.S.C. § 1391(b)(2) because the property at issue (the recorded

interviews of Bergdahl) are located in Los Angeles County, California.

PARTIES

8. Plaintiff Mark Boal is an award-winning journalist, filmmaker and

producer, covering stories of national interest since 1998 and the military and

national security since 2011. Boal’s Playboy Magazine article “Death and Dishonor”

– the true story of a father who searches for his missing Iraq war veteran son – was

adopted by Oscar-winner Paul Haggis into the film, In the Valley of Elah. Drawing

from his experiences as a reporter during the war in Iraq, Boal wrote The Hurt

Locker, the multi-Oscar- winning film directed by Kathryn Bigelow. As writer and

producer of the film, Boal won two Oscars, for Best Picture and Best Original

Screenplay. Boal most recently wrote and produced the critically acclaimed Zero

Dark Thirty, which went on to receive five Oscar nominations, and earned Boal his

second WGA Award for Best Original Screenplay. Boal’s 2011 investigative report



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for Rolling Stone entitled the “Kill Team” exposed Afghanistan war crimes, which

were eventually punished in the military justice system. Earlier pieces in Playboy

were the first to focus national attention on the VA’s failures to diagnose PTSD

among returning veterans. His 2008 investigative story for Rolling Stone entitled

“Everyone Will Remember Me as Some Sort of Monster” was selected for the Best

American Crime Writing anthology edited by Otto Penzler. Boal’s research into

Bergdahl’s disappearance from an Army outpost in Afghanistan began in the summer

of 2014, with the intention of researching and developing a story that could be told in

multiple mediums, as a documentary, a feature film, news articles, and possibly, a

non-fiction book. Boal conducted extensive interviews with individuals familiar with

the case, and in May 2015, teamed up with the reporters at the Peabody award-

winning Serial. Together they co-produced a 10-hour podcast exploring the meaning

of the Bergdahl saga against the backdrop of the war in Afghanistan and Operation

Enduring Freedom.

9. Plaintiff Flakjacket LLC d/b/a Page 1 is a California limited liability

company founded by Boal to explore the intersection of reporting and entertainment.

In addition to its work earlier this year co-producing the journalistic podcast Serial

(which is an off-shoot of National Public Radio’s This American Life and has more

than 50 million listeners world-wide) Boal and his company recently commissioned a

wide range of works of public-interest non-fiction from prominent writers and

Pulitzer prize-winning journalists on subjects such as policing and race relations in

Detroit circa 1967, Second-Wave feminism and the constitutional issues important to

that movement, as well as the ATF’s role in the raid in Waco, Texas in 1993, and

many more. Additionally, Page 1 is executive producing a forthcoming, prize-

winning documentary about the psycho-dynamics of terrorist attacks, which won best

documentary at the Tel Aviv Film Festival.

10. Defendant Barack Obama is President of the United States of America.

On information and belief, the Subpoena will issue from the “President of the United



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States.” President Obama is being sued in his official capacity as President and

Commander in Chief of the Armed Forces of the United States of America.

11. Defendant Ashton B. Carter is Secretary of Defense for the United States

of America. On information and belief, Secretary Carter is responsible for the actions

of defendant Major Justin Oshana. Secretary Carter is being sued in his official

capacity.

12. Defendant Eric Fanning is Secretary of the Army for the United States of

America. On information and belief, Secretary Fanning is responsible for the actions

of defendant Major Justin Oshana. Secretary Fanning is being sued in his official

capacity.

13. Defendant Robert B. Abrams, is a General in the United States Army.

General Abrams is the Commander of Army Forces Command and serves as the

Convening Authority for the general court-martial of Bergdahl. General Abrams is

the official who referred the charges against Bergdahl to a court-martial and is

responsible for the investigation, referral, and conduct of the court-martial. General

Abrams is being sued in his official capacity.

14. Defendant Justin Oshana, is a Major in the United States Army. Major

Oshana is Judge Advocate and trial counsel – i.e., prosecutor – in the court martial

proceedings against Bergdahl at Ft. Bragg, North Carolina. On information and

belief, Major Oshana will subscribe the Subpoena. Major Oshana has confirmed that

the Subpoena will issue on July 22, 2016 with a return date of August 16, 2016.

Major Oshana is being sued in his official capacity.

15. The true names and capacities of the defendants sued herein as DOE

defendants 1 through 10, inclusive, are currently unknown to Plaintiffs, who therefore

sue such defendants by fictitious names. Each of the defendants designated herein as

a DOE is legally responsible for the unlawful acts alleged herein. Plaintiff will seek

leave of Court to amend the Complaint to reflect the true names and capacities of the

DOE defendants when such identities become known.



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FIRST CLAIM

(For Declaratory Relief, 28 U.S.C. § 2201)

(Against all Defendants)

16. Plaintiffs reallege and incorporate by reference Paragraphs 1-15 as if set

forth here in full.

17. Defendants have made clear their intention to imminently issue, serve

and enforce the Subpoena against Plaintiffs.

18. Plaintiffs dispute that the Subpoena should be issued or enforced.

19. There is an actual case or controversy of sufficient immediacy and

reality as to whether the Subpoena may be issued or enforced, whether Plaintiffs must

comply with the Subpoena, and whether and to what extent Plaintiffs are entitled to

rely on the reporter’s privilege and other related privileges, immunities and

protections in response to the Subpoena.

20. Plaintiffs seek a declaration from this Court that the Subpoena may not

issue, may not be enforced and/or that Plaintiffs may lawfully refuse to comply with

the Subpoena.

SECOND CLAIM

(For Injunctive Relief)

(Against All Defendants)


forth here in full.


and enforce the Subpoena with a return date of August 16, 2016.

23. Issuance and enforcement of the Subpoena will irreparably harm

Plaintiffs. Either Plaintiffs will be forced to reveal unpublished and unbroadcast

segments of interviews gathered for news and public affairs reporting purposes,



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which include confidential information, or Plaintiffs will be subjected to contempt

proceedings for their failure to do so. Disclosure will irreparably damage Plaintiffs’

ability to gather news and give sources and subjects confidence in their ability to keep

materials confidential. Contempt proceedings will cause loss of liberty or property

that is unwarranted and unconstitutional. In either event, Plaintiffs – third parties to

the Bergdahl court martial – will be unduly burdened by the Subpoena and forced to

expend substantial sums on counsel.

24. Plaintiffs respectfully request that the Court temporarily, preliminarily

and permanently enjoin all Defendants from issuing and/or enforcing the Subpoena.

THIRD CLAIM

(For Writ of Mandamus And/Or Prohibition, 28 U.S.C. § 1651(a))

(Against All Defendants)


forth here in full.


and enforce the Subpoena with a return date of August 16, 2016.

27. In order to protect their constitutional, common law and statutory rights,

Plaintiffs respectfully request that the Court issue a writ of mandamus and/or

prohibition to all Defendants directing Defendants not to issue or enforce the

Subpoena.

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs pray for relief and judgment as follows:

1. A declaration from this Court that the threatened issuance and

enforcement of the Subpoena implicates important and constitutionally protected

rights under the First Amendment to the United States Constitution and the common

law, and that, therefore, the Subpoena may not issue, may not be enforced and/or that



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Plaintiffs may lawfully refuse to comply with the Subpoena without threat of

prosecution or contempt;

2. The Court grant temporary, preliminary and permanent injunctions

restraining Defendants from issuing or enforcing the Subpoena;

3. The Court issue a writ of mandamus and/or prohibition to all Defendants

directing Defendants not to issue or enforce the Subpoena;

4. Costs and attorney’s fees to the extent authorized by law; and

5. Any and all other relief as the Court deems necessary, just and proper.

Dated: July 20, 2016 JASSY VICK CAROLAN LLP

By _____/s/ Jean-Paul Jassy ________ JEAN-PAUL JASSY

Attorneys for Plaintiffs MARK BOAL and FLAKJACKET LLC d/b/a PAGE 1


Exhibit A


SUBPOENA

The President of the United States, to Parallax Media, LLC (operating as Page One Productions), c/o Jackoway, Tyerman, Wertheimer,

Austen, Mendelbaum, Morris & Kelin, AP. You are hereby required to produce the below listed documentary evidence for use in the

court-martial case of the United States v. Sergeant Robert Bowdrie (Bowe) Bergdahl as appointed by Court-Martial Convening Order

#1, Headquarters, United States Army Forces Command, Fort Bragg, North Carolina 28310, dated 11 November 2015. These records

must be produced no later than May 1st, 2016.

Documentary evidence: The complete unedited audio recordings of conversations between Sergeant Bergdahl and Mark Boal

referenced in the Serial podcast as over 25 hours of recorded conversations. If available, include the date and time for all recordings.

This subpoena only requires the production of certain evidence and does not include a provision requiring personal appearance at this

time. Failure to comply may result in a subpoena being issued for personal appearance and the production of documents or other evidence.

In that case, failure to appear and testify is punishable by a fine of not more than $500 or imprisonment for a period not more than six

months, or both. (10 U.S.C. § 847). Failure to appear may also result in your being taken into custody and brought before the court-

martial under a Warrant of Attachment (DD Form 454). Manual for Courts-Martial R.C.M. 703(e)(2)(G).

Return a copy of this subpoena with the required audio evidence. If personal appearance is required, bring this subpoena with you

and do not depart from the proceeding without proper permission.

Subscribed at Fort Bragg, North Carolina this 28th day of March, 2016.

___________________________ JUSTIN OSHANA, Major (Signature (See R.C.M. 703(e)(2)(C)) Judge Advocate, U.S. Army Trial Counsel The witness is requested to sign one copy of this subpoena and to return the signed copy to the person serving the subpoena.

I hereby accept service of the above subpoena. ________________________________________ (Signature of Witness/Authorized Recipient) NOTE: If the witness/authorized recipient does not sign, complete the following: Personally appeared before me, the undersigned authority, ____________________, who, being first duly sworn according to law,

deposes and says that at __________, on _______________, 20___, he/she personally delivered to _________________________, a

duplicate of this subpoena, by ____________________ (method of delivery).

_____ _________________________________________ (Grade) (Signature) Subscribed and sworn to before me at ___________________________, this _____ day of __________, 20___.

_____ ____________________ __________________________________________ (Grade) (Official Status) (Signature)

DD FORM 453-R, MAY 2000 PREVIOUS EDITION IS OBSOLETE. APD PE v1.00


[PROPOSED] TRO AND OSC

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Plaintiffs, v.


Defendants.


Assigned to Hon. George H. King

[PROPOSED] TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE WHY DEFENDANTS SHOULD NOT BE PRELIMINARY ENJOINED FROM ISSUING AND/OR ENFORCING A SUBPOENA TO PLAINTIFFS [Filed concurrently herewith: Plaintiff’s Ex Parte Application for Temporary Restraining Order and for Order to Show Cause, Memorandum of Points & Authorities, Declaration of Mark Boal, Declaration of Jean-Paul Jassy]


-1- [PROPOSED] TRO AND OSC

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TO DEFENDANTS UNITED STATES OF AMERICA, PRESIDENT BARACK

OBAMA, SECRETARY ASHTON B. CARTER, SECRETARY ERIC FANNING,

GENERAL ROBERT B. ABRAMS, MAJOR JUSTIN OSHANA AND DOES 1-10

(COLLECTIVELY, “DEFENDANTS”):

Plaintiffs Mark Boal (“Boal”) and Flakjacket LLC d/b/a Page 1 (“Page 1”)

(collectively, “Plaintiffs’”) Ex Parte Application for Temporary Restraining Order

and Order to Show Cause Why Defendant Should Not Be Preliminarily Enjoined

from issuing and/or enforcing a threatened subpoena to Plaintiffs, having come before

the Court, and good cause appearing therefor, namely, evidence showing that,

without such relief, Plaintiffs will suffer immediate and irreparable injury to their

rights under the First Amendment and other legal authorities,

IT IS HEREBY ORDERED that:

Plaintiffs’ Ex Parte Application for Temporary Restraining Order and Order to

Show Cause Why Defendants Should Not Be Preliminarily Enjoined from Issuing

and/or Enforcing a Subpoena to Plaintiffs is hereby GRANTED; and

YOU ARE HEREBY ORDERED TO SHOW CAUSE at ________ a.m./p.m.

on _______________ ____, 2016, or as soon thereafter as counsel may be heard in

the courtroom of the Honorable George H. King, located at Courtroom 650, 255 East

Temple Street, Los Angeles, California 90012, why you, your officers, agents,

employees, and attorneys and those in active concert or participation with you or

them, should not be restrained and enjoined pending trial of this action from issuing

and/or enforcing a threatened subpoena to Plaintiffs.

PENDING HEARING on the above Order to Show Cause, you, your officers,

agents, employees, and attorneys and those in active concert or participation with you

or them ARE HEREBY RESTRAINED AND ENJOINED from: issuing and/or

enforcing a subpoena to Plaintiffs, such order to remain in effect until ____ a.m./p.m.

on the _____________ day of _______________ 2016.


-2- [PROPOSED] TRO AND OSC

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The above Temporary Restraining Order is effective on Plaintiffs’ filing an

undertaking in the sum of $______. This Order to Show Cause and supporting

papers must be served on Defendant no later than ______ days before the date set for

hearing, and proof of service shall be filed no later than _____ court days before the

hearing. Any response or opposition to this Order to Show Cause must be filed and

personally served on Plaintiffs’ counsel no later than ______ court days before the

date set for hearing, and proof of service shall be filed no later than ______ court

days before the hearing.

Dated: ___________ ____, 2016 at ________a.m./p.m.

_________________________________ Hon. George H. King UNITED STATES DISTRICT JUDGE


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