Despite laws generally protecting journalists under the U.S. Constitution’s First Amendment, a Honolulu investigative reporter may have to provide deposition testimony and documents related to a story she reported about a Maui police officer accused of sexual misconduct in a civil lawsuit, a federal judge said.

The scope of information Hawaii News Now reporter Lynn Kawano would be required to reveal will be limited by journalistic privilege, which shields reporters from having to share information gathered through their reporting, U.S. District Court Judge Leslie Kobayashi said during a half-hour hearing.

In addition, any testimony by Kawano would be subject to an order limiting the range of questions she could be asked, Kobayashi indicated.

Still, Kobayashi’s comments in a court hearing, which still must be memorialized as a written order, could widen the door for lawyers to use reporters as tools in litigation, hauling journalists into court and forcing them to testify or turn over documents.

Kobayashi on Thursday echoed what she had said the previous day in a document showing her inclination to hand a partial victory to each side of the dispute: Maui County on one side, and Kawano and her employer, KGMB/KHNL, on the other.

Kobayashi’s tentative position was that Kawano hadn’t waived her journalistic privilege but still could have to provide some information gathered outside the orbit of her work as a reporter.

“The Court is inclined to find that Kawano has failed to show good cause why a protective order should issue, except as to information covered by her qualified privilege as a journalist, and to find that the County has failed to demonstrate that Kawano waived her qualified privilege as a journalist,” Kobayashi wrote. “Less clear is, as to information being sought that is not confidential, whether the County can show that the material is unavailable despite exhausting all reasonable alternative sources and non-cumulative.”

Kobayashi’s position didn’t seem to change despite 30 minutes of oral arguments during a virtual hearing, in which lawyers reiterated key points made in lengthy briefs previously filed with the court.

Kawano’s attorney, Bruce Voss, said courts shouldn’t allow reporters to be used as weapons by parties in civil litigation.

“Ms. Kawano has no information other than what she gained in the newsgathering process,” Voss said.

Keola Whittaker, a deputy corporation counsel for Maui County, argued that Kawano had waived her journalistic privilege by referring plaintiffs to Honolulu trial lawyer Michael Green, holding her story until the plaintiffs had retained Green and then interviewing Green for the story. The county also alleges Kawano “made an independent report to the FBI,” which Voss denied.

The Alleged Golden Ticket Scheme

One thing not in dispute was that the allegations in the underlying case were – as lawyers on both sides put it – “wild.”

According to the underlying complaint filed by Green against Maui County, in July 2019, then-Maui Police Department Officer Brandon Saffeels pulled over Alishia Constantino, charged her with driving under the influence and later tried to coerce Constantino into having sex with him in exchange for getting the DUI case dropped.

Constantino sued Saffeels and the county. Kawano later reported on the Saffeels-Constantino incident, documenting her story with portions of recorded phone calls and text messages.

Saffeels was later convicted as a sexual predator in a separate case. The former officer was sentenced to 10 years in prison in November after pleading guilty to a federal charge of attempting to have sexual contact with a someone he thought was a 13-year-old girl.

The problem with the Constantino case, Maui County lawyers allege, is that Saffeels was set up, in what Constantino and her friend Jennifer Boswell purportedly called “the golden ticket scheme.”

The idea, according to Maui attorneys, was to get Constantino off the hook for the DUI charge and get money by suing the county.

“Boswell testified that she and Constantino prompted Saffeels to call Constantino, came up with a script, and recorded the call to get the evidence so that Constantino could get out of a DUI charge and file a lawsuit against the County,” the county says in a court document citing Boswell’s deposition testimony.

The women later went to Kawano to broadcast the story, Maui County asserts. That’s when the county alleges Kawano started crossing a line and giving up her journalistic privilege.

“Rather than simply report the story, Kawano stepped out of the reporter’s role and made herself part of the story,” the county says. “Kawano recommended that Constantino hire her friend, attorney Michael Green for her lawsuit, and provided Constantino with Green’s office phone number.”

“Plaintiff Alisha Constantino and the two other Plaintiffs in a related case – Ronda Smythe and Lianna Kanno – also testified under oath that they hired Mr. Green at Lynn Kawano’s suggestion,” the county asserts.

On Thursday, Voss dismissed the idea that Kawano helped the FBI.

“Asking the FBI for comment is what a news reporter does,” he said. He also denied insinuations that Kawano has a client-referral agreement with Green that would transform her from a reporter to a litigation consultant.

Kobayashi agreed that Kawano hadn’t waived her privilege. But the judge said information Kawano had received outside the demands of her work as a reporter might have to be turned over, subject to case law that limiting such information to things the county hasn’t been able to get through other means and that are relevant to the Saffeels case.

Jeff Portnoy, a Honolulu media lawyer, didn’t comment on the specific case but said generally reporters can waive their journalistic privilege by doing things outside the scope of what reporters do. A reporter couldn’t invoke the privilege to avoid testifying about those things, Portnoy said.

“In the abstract, not commenting on these bizarre allegations, if a reporter goes beyond traditional news gathering, such as advising a person of their legal rights or recommending a lawyer, there’s a question as to whether the privilege can apply to those activities,” he said.

The next steps will be for Kobayashi to issue a written order and for the two sides to proceed with discovery, including a deposition, in which Kawano’s lawyers will be able to object to questions that fall under the journalist’s privilege considered privileged or outside the boundaries of Kobayashi’s limiting instructions.

Civil Beat’s coverage of Maui County is supported in part by grants from the Nuestro Futuro Foundation and the Fred Baldwin Memorial Foundation.