Rapp v. Fowler

Background

Anthony Rapp alleges that Kevin Spacey Fowler, also known as Kevin Spacey, sexually assaulted him in 1986, when Rapp was 14 and Fowler was in his twenties. Fowler denies that the incident or any other wrongdoing occurred. In 2017, Rapp told Adam Vary, a journalist employed by BuzzFeed, about the alleged incident, and Vary wrote a story that was published on October 29, 2017.

Fowler subpoenaed Vary for documents and testimony concerning Vary’s communications with Rapp, the reporting of the story, claims of sexual misconduct involving Fowler, and related communications. Vary appeared for a deposition but declined to answer many questions. He also produced almost none of the subpoenaed documents, asserting a journalist’s privilege and shield protections. The court ordered an in-camera review, meaning a private review by the judge, of the materials Vary withheld.

Applicable Protections

The court concluded that New York’s reporter’s shield law governed the privilege issue through Federal Rule of Evidence 501. It rejected the need for a separate choice-of-law analysis because California’s shield law was not treated as a privilege under the relevant federal evidence rule, while New York’s law was. The court also concluded that New York’s protections were at least as broad as any federal reporter’s privilege relevant to the motion.

The New York law provides absolute protection for confidential-source identities and news obtained or received in confidence. It provides a qualified privilege for nonconfidential newsgathering material. A qualified privilege can be overcome only by a clear and specific showing that the material is highly relevant, critical or necessary to a claim or defense, and unavailable from another source.

Journalist Status and Confidential Sources

The court found that Vary acted as a “professional journalist” covered by New York’s shield law. Although the court identified questions about Vary’s independence from Rapp—including communications suggesting that Vary was willing to shape the story, omit or soften unverified details, or advise Rapp about public relations—the court also credited instances in which Vary maintained editorial independence. The court found no evidence of financial ties between Vary and Rapp, although it noted Vary’s separate effort to obtain compensation related to a documentary about Fowler.

The court held that the identities and information associated with Confidential Sources 1, 2, 3, 4, 8, 9, 11, and 13 were absolutely protected. It found no sufficient basis for absolute confidential-source protection for materials associated with Confidential Sources 5, 6, 7, 10, 12, and 14. The court explained that confidentiality generally requires an express or implied understanding between the journalist and the person from whom the information was obtained. A person’s unilateral desire for anonymity was not enough.

Nonconfidential Newsgathering Materials

The court held that most of the remaining unpublished reporting materials were protected by the qualified privilege for nonconfidential newsgathering material. This included nearly all materials on USB#1 and USB#2, subject to specified exceptions, and one file of 2017 text messages that appeared to have been placed on USB#4 by mistake.

Fowler argued that the materials were necessary to evaluate Rapp’s credibility. The court recognized that credibility was central to the case but held that Fowler had not shown that the undisclosed materials were so essential that the defense would fail without them. The court noted that Fowler already possessed text messages suggesting that Vary may have had a motive to omit or change details to protect Rapp from being contradicted. The qualified privilege therefore prevented disclosure of the covered newsgathering materials.

Materials the Court Ordered Produced

The court held that certain materials were not protected and were relevant. These included Vary’s communications with Rapp before 2017, 2021 communications with Darlow Smithson Productions concerning Vary’s possible paid role in a documentary about Fowler, documents concerning interactions between Vary and Fowler, and one text exchange between Vary and his father referring to a negative interaction involving Vary and Fowler at a restaurant before publication of the BuzzFeed story.

The court found that these materials could bear on Vary’s reliability and independence and on whether he had a motive to omit or change details in Rapp’s account. The court did not require production of most other materials on USB#4 because they were public, already available to Fowler, or irrelevant. It also held that attorney communications submitted for review were outside the subpoena’s scope, so it did not decide whether they were protected by attorney-client privilege or work-product protection.

Disposition

Judge Kaplan granted Fowler’s motion to compel to the extent that it sought production of Vary’s pre-2017 communications with Rapp, Vary’s 2021 communications with Darlow Smithson Productions, documents concerning interactions between Vary and Fowler, and a supplemental deposition. Vary was ordered to produce the documents by August 15, 2022. He was also ordered to sit for a supplemental deposition of no more than four hours on or before September 9, 2022, and to answer, consistent with the opinion, questions previously refused and reasonable follow-up questions. The motion otherwise was denied. The court also discharged an order to show cause dated June 13, 2022.