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Case 1:15-cv-07433-LAP Document 1325-1 Filed 01/04/24 Page 4 of 21 Second, in certain instances, Churcher was also acting as a source for information to Plaintiff's counsel and law enforcement agencies, specifically stating that she was not acting in her capacity as a journalist. In these instances, she was not gathering news for publication, she was providing information she had already gathered. Providing this information to third parties waived any qualified privilege that ever arguably existed. Finally, to the extent that any information sought is covered by the qualified protection of Civil Rights Law § 79-h(c)', Ms. Maxwell provides a clear and specific showing that the information is highly material or relevant, critical or necessary to the Ms. Maxwell’s truth defense, and not obtainable from any alternative source. As such, the Shield Law requires compliance with the subpoena. For these reason, the Motion to Quash should be denied, and Churcher should be compelled to comply with the Subpoena, as modified herein. ARGUMENT I. CHURCHER IS A MATERIAL FACT WITNESS AND WAS NOT ACTING AS A JOURNALIST The New York Shield law relied on by Churcher is only applicable where a professional journalist is asked to disclose information they have received “in the course of gathering or obtaining news for publication.” 79-h(b) &(c). Much of the information sought from Churcher has nothing to do with information she gathered or collected in the course of gathering news for publication. Rather, it relates to advice, information and communications that she had with Plaintiff in her capacity as a friend and advisor. “Section 79-h is not applicable where the journalist is called upon, as other citizens, to testify with respect to personal observations” 1 As discussed in detail below, the undersigned has informed Churcher’s counsel that the Subpoena is not intended to cover any information from confidential sources. Thus, the absolute privilege found in Civil Rights Law § 79— h(c) is inapplicable