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Charles Baker et al., Appellants, v. F & F Investment et al., Appellees
United States Court of Appeals, Second Circuit. - 470 F.2d 778
Argued Nov. 16, 1972.Decided Dec. 7, 1972
Douglas C. Nohlgren, Thomas P. Sullivan, John C. Tucker, John G. Stifler, Richard T. Franch, Chicago, Ill. (Jenner & Block, Thomas J. Boodell, Jr., Boodell, Sears, Sugrue, Giambalvo & Crowley, Chicago, Ill., Herbert Teitelbaum, Skadden, Arps, Slate, Meagher & Flom, New York City, of counsel), for appellants.
Martin I. Kaminsky, Pollack & Singer, New York City, for appellees.
Before SMITH, KAUFMAN and MULLIGAN, Circuit Judges.
IRVING R. KAUFMAN, Circuit Judge:
This unusual interlocutory appeal involves the validity of a district judge's decision refusing to compel a journalist to disclose confidential news sources. Appellants here are plaintiffs in a federal class action pending in the Northern District of Illinois,1 a case which involves alleged racial discrimination in the sale of houses to Negroes in Chicago. Appellants moved in the Southern District of New York for an order under Rule 37, F.R.Civ.P.,2 to compel Alfred Balk, a journalist, to answer questions posed to him during the taking of his oral deposition in New York City. Judge Bonsal denied the motion. Appellants urge us to extend to this civil case the limited principle of Branzburg v. Hayes (United States v. Caldwell), 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972), which held only that newsmen could be required to disclose confidential sources to a grand jury conducting a criminal investigation. We decline that invitation and affirm the order below.3
The underlying case is a civil rights class action brought in behalf of all Negroes in the City of Chicago who purchased homes from approximately 60 named defendants between 1952 and 1969. The complaint alleges that defendants sold homes at excessive prices by engaging in racially discriminatory practices such as "blockbusting." Appellants' complaint survived a motion to dismiss, see, Contract Buyers League, et al. v. F&F Investment, 300 F.Supp. 210 (N.D. 111, 1969)4 and, with the issue joined they embarked upon pretrial discovery.
In connection with its discovery, appellants deposed Alfred Balk who is, at present, editor of the Columbia Journalism Review and a lecturer at the Graduate School of Journalism of Columbia University. Approximately ten years ago, while living in Chicago, Mr. Balk wrote an article on "blockbusting" which was published in the Saturday Evening Post on July 14, 1962. The story, entitled "Confessions of a Block-Buster," was based upon information supplied to Mr. Balk by an anonymous real estate agent in Chicago, given the pseudonym "Norris Vitchek" for purposes of publication. The record discloses that "Vitchek" was unwilling to make his information available unless Balk and his publishers agreed not to reveal the true identity of their source. The article exposed details of real estate practices in the Chicago area including racially discriminatory activities on the part of unscrupulous landlords and real estate speculators.
At his deposition taken on June 7, 1971, it was apparent that Balk was highly sympathetic to appellants' cause and was anxious to cooperate. He indicated that he would "be happy to verify such information as you find in the article and describe such as I understand as [sic] the general mechanics of the real estate speculators' operations." He went on to state that he wrote the article on blockbusting, and that it accurately reflected information provided to him by "Norris Vitchek." Balk testified that "Vitchek" was a real person but Balk was unwilling to identify him on the ground that information given by "Vitchek" was made available on a confidential basis. Balk made it clear that his refusal to disclose confidential sources was based on "the First Amendment . . . which [protects] not only the right to disseminate, but the right to gather information."
Accordingly, appellants moved under Rule 37, F.R.Civ.P., for an order compelling Balk to disclose the identity of his confidential source. Judge Bonsal, in a well-considered opinion filed prior to the Supreme Court's decision in Branzburg v. Hayes (United States v. Caldwell), supra, balanced the competing public and private interests involved in the case and concluded that Balk should not be required to reveal "Vitchek's" identity.
The law in this area is clearly stated. A motion seeking a discovery ruling is addressed to the discretion of the district court, and our function on appeal is to determine whether the trial judge abused his discretion in entering the challenged order, see, e. g., Montecatini Edison S.P.A. v. E. I. du Pont de Nemours & Co., 434 F.2d 70 (3 Cir. 1970); Borden Co. v. Sylk, 410 F.2d 843 (3 Cir. 1969); Tiedman v. American Pigment Corp., 253 F.2d 803 (4 Cir. 1958). We conclude that Judge Bonsal was well within the ambit of his discretionary authority in denying appellants' motion for discovery.
Rather than rely on the Ninth Circuit Court of Appeals's decision in Caldwell v. United States, 434 F.2d 1081 (9 Cir. 1970), which established a journalist's testimonial privilege in criminal investigations conducted by the grand jury-a ruling subsequently reversed by the Supreme Court in Branzburg v. Hayes, supra5-Judge Bonsal instead sought independently to ascertain the applicable federal law governing resolution of the discovery motion before him. It suffices to state that federal law on the question of compelled disclosure by journalists of their confidential sources is at best ambiguous. Although it is safe to conclude, particularly after the Supreme Court's decision in Branzburg, a case about which we will have more to say in Part II of this opinion, that federal law does not recognize an absolute or conditional journalist's testimonial "privilege", neither does federal law require disclosure of confidential sources in each and every case, both civil and criminal, in which the issue is raised. Absent a federal statute to provide specific instructions, courts which must attempt to divine the contours of non-statutory federal law governing the compelled disclosure of confidential journalistic sources must rely on both judicial precedent and a well-informed judgment as to the proper federal public policy to be followed in each case.
To inform his judgment concerning appropriate federal public policy in the area of a newsman's privilege, Judge Bonsal looked to both New York and Illinois statutes governing newsmen's rights. These two states-and there are others-have enacted legislation protecting a journalist from forced disclosure of his confidential sources. Both statutes6 were enacted after the publication of Mr. Balk's article, but prior to the filing of appellant's motion in the district court. In a memorandum to the Legislature approving New York's "newsman's privilege" statute, Governor Rockefeller stated:
Freedom of the press is one of the foundations upon which our form of government is based. A representative democracy, such as ours, cannot exist unless there is a free press both willing and able to keep the public informed of all the news.
The threat to a newsman of being charged with contempt and of being imprisoned for failing to disclose his information or its sources can significantly reduce his ability to gather vital information. . . .
Baker, et al. v. F & F Investment, et al., 69 C 15 (N.D.Ill.)
Rule 37, Failure to Make Discovery: Sanctions, provides, in pertinent part:
(a) Motion for Order Compelling Discovery. A party, upon reasonable notice to other parties and all persons affected thereby, may apply for an order compelling discovery as follows:
(1) Appropriate Court. An application for an order to a party may be made to the court in which the action is pending, or, on matters relating to a deposition, to the court in the district where the deposition is being taken. An application for an order to a deponent who is not a party shall be made to the court in the district where the deposition is being taken.
(2) Motion. If a deponent fails to answer a question propounded or submitted under Rules 30 or 31, or a corporation or other entity fails to make a designation under Rule 30(b)(6) or 31 (a), or a party fails to answer an interrogatory submitted under Rule 33, or if a party, in response to a request for inspection submitted under Rule 34 fails to respond that inspection will be permitted as requested or fails to permit inspection as requested, the discovering party may move for an order compelling an answer, or a designation, or an order compelling inspection in accordance with the request. When taking a deposition on oral examination, the proponent of the question may complete or adjourn the examination before he applies for an order.
If the court denies the motion in whole or in part, it may make such protective order as it would have been empowered to make on a motion made pursuant to Rule 26(c).
Although neither party has questioned the appealability of this order, it is appropriate that we state that ordinarily, orders denying or directing discovery are non-appealable interlocutory decisions, see, e. g. Alexander v. United States, 201 U.S. 117, 26 S.Ct. 356, 50 L.Ed. 686 (1906); Borden Co. v. Sylk, 410 F.2d 843 (3 Cir. 1969); United States v. Fried, 386 F.2d 691 (2d Cir. 1967); cf., Republic Gear Company v. Borg-Warner Corp., 381 F.2d 551 (2d Cir. 1967). Special circumstances, however, attend motions for discovery made in a district other than the district in which the main action is brought. Although an order compelling disclosure in an "outside" jurisdiction is generally not reviewable, see, e. g., National Nut Co. of California v. Kelling Nut Co., 134 F.2d 532 (7 Cir. 1943); cf., Honig v. E. I. duPont de Nemours & Co., 404 F.2d 410 (5 Cir. 1968), an order denying disclosure in a jurisdiction beyond that of the main proceeding is immediately reviewable, to give the party seeking discovery an effective remedy. Republic Gear Company v. Borg-Warner Corp., supra, 381 F.2d at 554. In that case Judge Waterman stated the underlying policy justification for this rule as follows:
[E]ven if the appellate court in the jurisdiction in which discovery is sought awaited a final decision in the main proceeding before acting at all it would be necessary to return to the ancillary appellate court to argue the discovery issue. And if, upon appeal, the party were successful in reversing the lower court's order and thus obtained discovery, he would be required to go back to the court where the main case had already been tried, and there, with the discovered evidence now admissible on the merits, move to retry the case. The impracticality of this cumbersome procedure compels us to grant immediate appellate review of an order which, in another context, we might properly hold to have been an interlocutory order.
Ibid. See also, 9 Moore Federal Practice p 110.13 at 157.
Aff'd, Baker v. F. & F. Inv., 420 F.2d 1191 (7 Cir. 1970)
Caldwell v. United States was decided by the Ninth Circuit on November 16, 1970. The order in this case was dated February 16, 1972. The Supreme Court decided the Branzburg case on June 29, 1972
N.Y. Civil Rights Law Sec. 79-h (McKinney's Consol.Laws, c. 6, Supp.1972) provides in part:
Notwithstanding the provisions of any general or specific law to the contrary, no professional journalist or newscaster employed or otherwise associated with any newspaper, magazine, news agency, press association, wire service, radio or television transmission station or network, shall be adjudged in contempt by any court, the legislature or other body having contempt powers, for refusing or failing to disclose any news or the source of any such news coming into his possession in the course of gathering or obtaining news for publication or to be published in a newspaper, magazine, or for broadcast by radio or television transmission station or network, by which he is professionally employed or otherwise associated in a news gathering capacity.
The Illinois statute, Ch. 51, Ill.Rev.Stat. Sec. 111 et seq. (1971), provides in part:
No court may compel any person to disclose the source of any information obtained by a reporter during the course of his employment except as provided in this Act.
The Illinois Act provides a number of limitations on the newsman's privilege. Section 111 states that the privilege "is not available in any libel or slander action in which a reporter or news medium is a party defendant."
When a journalist claims the privilege, the party seeking information may ask a court for an order compelling disclosure, see Sec. 113, by indicating, inter alia, the specific information sought, its relevancy to the proceedings, "and, a specific public interest which would be adversely affected if the factual information sought were not disclosed," see Sec. 114. In deciding such a motion, the Court is directed to consider "the nature of the proceedings, the merits of the claim or defense, the adequacy of the remedy otherwise available, if any, the relevancy of the source, and the possibility of establishing by other means that which it is alleged the source requested will tend to prove," see Sec. 116. Section 117 authorizes a court to compel disclosure only if it finds, inter alia "that all other available sources of information have been exhausted and disclosure of the information sought is essential to the protection of the public interest involved."
McKinney's Session Laws of New York, 1970, Vol. 2 at 3112. Governor Ogilvie stated, upon signing the Illinois bill into law:
The Act is more than a declaration of fair play for newsmen. It also assures a better informed public, for it allows reporters to seek the truth wherever it is to be found, without fear that their sources of information will be cut off by unnecessary disclosures.
Editor & Publisher, October 10, 1971, p. 14, col. 2.
For recent, but pre-Branzburg, discussions of newsmen's privilege see Kuhns, Reporters and Their Sources: The Constitutional Right to a Confidential Relationship, 80 Yale L.J. 317 (1970); Note, The Right of the Press to Gather Information, 71 Colum.L.Rev. 838 (1971)