News of the Day: In re Application for Appointment of Commissioner

There’s an interesting new case in the federal court here in Boston: In re Application for Appointment of Commissioner. In May, the Boston Globe reported that the government, acting on behalf of the UK authorities under the US/UK treaty for mutual assistance in criminal matters, had issued a subpoena to Boston College for audiotapes and other records of interviews that members of the Provisional IRA had given to researchers in connection with the Belfast Project, an oral history project at BC. This week, BC moved to quash the subpoena. The interviews were given under a promise of confidentiality, and BC has raised the obvious concerns about disclosure of the interviews now.

BC’s brief is well-written and persuasive on its face, but I was struck by the age of the cases it cites. The case on which BC puts the most reliance, Cusumano v. Microsoft Corp., 162 F.3d 708 (1st Cir. 1998), is more than a decade old. Given the hostility in the courts in recent years to the so-called reporter’s privilege, e.g., in the Valerie Plame affair, I wonder whether the older cases will be persuasive. If the First Amendment and common law concerns that Judith Miller raised were not enough to shield her from the grand jury subpoena, then I wonder whether BC’s concerns will be enough.

Although the underlying case is criminal rather than civil or commercial, and is therefore outside the official Letters Blogatory scope of coverage, I will cover happenings in the case.

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. He is the author of International Judicial Assistance (MCLE 2d ed. 2016), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's forthcoming treatise on International Aspects of US Litigation, and he is the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012, 2014, and 2015.

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