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Case 1:15-cv-07433-LAP Document 1325-1 Filed 01/04/24 Page 12 of 21 Churcher on these sources except to determine if they have later been identified with their permission. The undersigned informed Ms. Churcher’s counsel in their conferral that she would not seek information relating to confidential sources. Respecting identified sources, Churcher fails to carry the burden of showing that there was an expectation of confidentiality, which is her burden to carry. Indeed, in her declaration she admits that she had conversations with Plaintiffs attorney, Bradly Edwards, and law enforcement agencies that were not intended to be kept confidential. See Churcher Decl. {fj 9 & 11. In her articles, she specifically identifies the sources of her information, demonstrating the lack of confidentiality. Plaintiff simply cannot carry the burden of claiming any absolute privilege under 79-h(b). I. THERE IS ACOMPELLING NEED FOR CHURCHER’S DOCUMENTS AND TESTIMONY Having failed to establish the essential element of confidentiality, Churcher attempts to claim a qualified protection. Matter of Sullivan, 167 Misc. 2d 534, 538, 635 N.Y.S.2d 437, 440 (Sup. Ct. 1995) (source “had no understanding or expectation of confidentiality with either Mr. Hurley or the police detectives regarding the viewing of the interrogation. Consequently, there is no absolute privilege which protects the movant's materials, see Civil Rights Law § 79-h(b), and therefore any protection that might be afforded to the journalistic material can only be of a qualified nature.”). Churcher relies on qualified protection relating to non-published news gathering information, which requires Ms. Maxwell make a clear and specific showing that the information is: (1) highly material and relevant; and (2) critical or necessary to the litigant's claim or defense; and (3) not obtainable from any alternative source. Matter of Sullivan, 167 Misc. 2d 534, 537-38, 635 N.Y.S.2d 437, 440 (Sup. Ct. 1995); Civil Rights Law 79-h (c). As discussed above, this provision is only applicable where a journalist is acting in a news gathering 10