After initially failing to appear for the trial, DeRogatis was ordered by Judge Vincent Gaughan on May 30, 2008, to report to the trial the following day. However, upon questioning by Judge Gaughan outside of the presence of the jury, DeRogatis refused to provide substantive answers, citing his First and Fifth Amendment rights as the basis for his refusal. Judge Gaughan disagreed that as a journalist DeRogatis had a First Amendment basis for refusing to testify, but excused DeRogatis from taking the stand in front of the jury based upon his Fifth Amendment right not to incriminate himself.