Gonzales v. National Broadcasting Co., Inc.

Citation155 F.3d 618
Decision Date22 September 1998
Docket NumberNo. 97-9454,97-9454
Parties, 26 Media L. Rep. 2301 Albert GONZALES and Mary Gonzales, Plaintiffs-appellees, Deputy Darrell Pierce, Defendant-Appellee v. NATIONAL BROADCASTING COMPANY, INC., Respondent-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Susan E. Weiner, New York City (Daniel M. Kummer, National Broadcasting Company, Inc. Law Department, New York City, of counsel), for Respondent-Appellant.

Perry R. Sanders, Jr., Lake Charles, LA (Sanders, Crochet & Chism, LLP, Lake Charles, LA, Brian D. Caplan, Goodkind, Labaton, Rudoff & Scharow, New York City, of counsel), for Plaintiffs-Appellees.

Michael O. Hardison, Snow, Becker & Krause, New York City, Andre J. Buisson, Jennings, LA, of counsel, for Defendant-Appellee.

BEFORE: McLAUGHLIN and PARKER, Circuit Judges, and SPATT *, District Judge.

PARKER, Circuit Judge:

Respondent-Appellant National Broadcasting Company, Inc. ("NBC") appeals from an Opinion and Order of the United States District Court for the Southern District of New York (Harold Baer, Jr., Judge ), entered September 26, 1997, granting in part and denying in part motions to compel compliance with non-party subpoenas issued to NBC, as well as from an Order of Contempt, entered October 29, 1997, holding NBC in contempt for non-compliance with the previous order. The subpoenas sought production of unedited, unbroadcast videotapes, known as "outtakes," and deposition testimony from NBC representatives concerning the events recorded on the videotapes. The subpoenas, issued out of the Southern District of New York, were served on NBC by the parties to a civil rights action commenced in the Western District of Louisiana.

The district court found that this Circuit has recognized a qualified journalists' privilege under federal law to protect nonconfidential information, but nevertheless held that the test for overcoming that privilege had been satisfied, and accordingly directed NBC to produce the outtakes and an affidavit authenticating them. We disagree with the district court's holding that there exists a qualified journalists' privilege for nonconfidential information under federal law, and for the reasons that follow, decline to recognize such a privilege today. Because the materials sought by the subpoenas contain no confidential information or sources, are relevant to plaintiffs' case and properly discoverable under Fed.R.Civ.P. 26, we affirm the orders of the district court granting in part the motions to compel and holding NBC in contempt.

I. BACKGROUND

Albert Gonzales and Mary Gonzales (the "Gonzaleses") are plaintiffs in a civil rights action under 42 U.S.C. §§ 1983 and 1988 brought in the United States District Court for the Western District of Louisiana (the "Louisiana Action"). In the Louisiana Action, the Gonzaleses claim that defendant Darrell Pierce, a Louisiana Deputy Sheriff ("Deputy Pierce"), pulled them over on Interstate 10 on November 28, 1995 without any probable cause or reasonable suspicion, and detained them longer than other, similarly situated Caucasians, due to their Hispanic origin. The Gonzaleses also claim that it was the custom, habit and practice of Deputy Pierce to pull out-of-state travelers over without probable cause or reasonable suspicion, and that it was his custom, habit and practice to detain and question minority citizens, including Hispanics, longer than similarly situated Caucasians. The Gonzaleses seek compensatory and punitive damages, as well as an injunction prohibiting Deputy Pierce from stopping travelers without probable cause or reasonable suspicion and from detaining minority travelers longer than similarly situated Caucasians.

The Gonzaleses assert that they intend to call as witnesses at trial in the Louisiana Action other motorists who were stopped at or about the same place and time by Deputy Pierce and who claim that they were not engaged in the activity cited by Deputy Pierce as the reason for pulling them over. Plaintiffs also plan to introduce videotapes of highway stops performed by Deputy Pierce and recorded by a camera placed on the top of Deputy Pierce's patrol car. Because the camera was only activated after the vehicle came to a stop, however, these videotapes only show Deputy Pierce's actions after a stop was made, and do not capture the allegedly illegal conduct that caused Deputy Pierce to stop the subject car.

On January 3, 1997, NBC aired a segment on its "Dateline" television program reporting on what it described as pervasive abuses by law enforcement officers in Louisiana who conduct unwarranted stops of motorists, particularly of out-of-state travelers. As laid out in the report, these stops sometimes led to seizure of vehicles and property. The Dateline report included a videotape stop of one of its employees, Pat Weiland, by Deputy Pierce. While investigating these unwarranted highway stops, Weiland, a Dateline producer and a cameraman, rented a car, equipped it with hidden cameras and traveled on Louisiana roadways. In May 1996, six months after the Gonzaleses' car was pulled over, Deputy Pierce stopped the car driven by Weiland, claiming that it had been slowing down and speeding up. The Dateline program claimed that the car had in fact been on cruise control at 64 miles per hour, below the posted speed limit. The broadcast briefly showed five video images of the car as it was in motion, but it did not show all of the car's movements prior to the stop. Dateline claimed that the hidden camera footage showed that no traffic laws had been violated and that the car was stopped without probable cause. The report also included the hidden camera footage showing the car being pulled over and Deputy Pierce examining the currency compartment of Weiland's wallet.

On August 11, 1997, the Gonzaleses served NBC with a subpoena seeking the original, unedited camera footage of Deputy Pierce's stop of Weiland, and deposition testimony from NBC representatives about the events recorded on the videotape. Specifically, the subpoena sought the footage of the car as it was moving prior to the traffic stop, through the traffic stop and subsequent roadside encounter. On September 10, 1997, Deputy Pierce served a subpoena on NBC in virtually identical terms to the Gonzaleses' subpoena. NBC objected to both subpoenas on the grounds that they were unduly burdensome, and that they sought documents and testimony protected from disclosure by the privilege afforded journalists under the First Amendment to the United States Constitution. Both the Gonzaleses and Deputy Pierce filed motions to compel NBC's compliance with their respective subpoenas in the Southern District of New York in September 1997. 1

On September 26, 1997, the district court issued an Opinion and Order granting in part and denying in part the motions to compel NBC's compliance with the subpoenas. Gonzales v. Pierce, 175 F.R.D. 57 (S.D.N.Y.1997). The parties agreed below, as they do on appeal, that the scope of the privilege is governed by federal law because the underlying case asserted a federal cause of action. The district court held that there was a qualified journalists' privilege, which was applicable to nonconfidential information, quoting the following statement:

The law in this Circuit is clear that to protect the important interests of reporters and the public in preserving the confidentiality of journalists' sources, disclosure may be ordered only upon a clear and specific showing that the information is: highly material and relevant, necessary or critical to the maintenance of the claim, and not obtainable from other available sources.

McGraw-Hill, Inc. v. Arizona (In re Petroleum Products Antitrust Litigation), 680 F.2d 5, 7 (1982) (per curiam) ("Petroleum Products "). However, the district court held that the three part test was met in this case. Specifically, the court held that the Gonzaleses had made a showing that the tapes were "highly material and relevant" because some of their claims alleged a pattern and practice of illegal stops by Deputy Pierce, and each additional instance of an illegal stop was relevant to that claim. Further, the district court found that the Gonzaleses had established that the tapes were "necessary or critical" to their claim because they were seeking punitive damages and injunctive relief, and such relief can only be attained upon a showing of a pattern or practice of conduct. The court also found that the evidence the Gonzaleses sought would not be obtainable from other available sources.

The district court held that Deputy Pierce's need for the tapes was equally compelling. If the tapes demonstrated that Deputy Pierce had probable cause to stop the Dateline car, "they would provide unique evidence of both his proper behavior and his veracity." 175 F.R.D. at 60. Finally, the court held that "[c]ompelling production of the tapes [was] further supported by the fact that no confidential information [was] at issue here." Id.

Accordingly, the court below ordered NBC to produce the outtakes and an affidavit authenticating them. However, the court denied the motion to compel with respect to the deposition testimony from NBC representatives, with leave to renew should the Louisiana court require further authentication of the tapes. On October 29, 1997, the district court entered an Order of Contempt against NBC for its failure to comply with the court's previous order directing NBC to produce the unbroadcast videotapes to the Gonzaleses and Deputy Pierce. NBC timely appealed.

II. DISCUSSION

NBC argues that the three part test set forth in Petroleum Products "indisputably" applies to information prepared or obtained by journalists gathering news, regardless of whether such information is confidential. We disagree. In our view, the case law in this Circuit firmly grounds the journalists' privilege on the confidential nature of the...

To continue reading

Request your trial
10 cases
  • Xue Ming Wang v. Abumi Sushi Inc.
    • United States
    • U.S. District Court — Southern District of New York
    • August 14, 2017
  • Kinon Surface Design v. Hyatt Int'l Corp.
    • United States
    • U.S. District Court — Northern District of Illinois
    • August 10, 2021
    ... ... and Hyatt International Technical Services, Inc. filed a ... Motion for a Protective Order (which is ... (Beijing) Co. (“HIHM”). See Kinon Surface ... Design, Inc. v ... 2008); Gonzalez v. Nat'l ... Broadcasting Co., Inc., 155 F.3d 618, 626 (2nd Cir ... 1998); ... ...
  • Generation Brands, LLC v. Decor Selections, LLC
    • United States
    • U.S. District Court — Northern District of Illinois
    • October 16, 2020
    ...v. Lando, 441 U.S. 153 (1979). Accord Regan-Touhy v. Walgreen Co., 526 F.3d 641, 648-49 (10th Cir. 2008); Gonzalez v. Nat'l Broadcasting Co., Inc., 155 F.3d 618, 626 (2nd Cir. 1998); Jett v. Warrentech Corp., 2020 WL 3104673, *2 (S.D. Ill. 2020); Gray v. Acadia Healthcare Co., Inc., 2020 WL......
  • Art Akiane LLC. v. Art & Soulworks LLC
    • United States
    • U.S. District Court — Northern District of Illinois
    • September 18, 2020
    ...441 U.S. 153, 177 (1979). Accord Regan-Touhy v. Walgreen Co., 526 F.3d 641, 648-49 (10th Cir. 2008); Gonzalez v. Nat'l Broadcasting Co., Inc., 155 F.3d 618, 626 (2nd Cir. 1998); Jett v. Warrentech Corp., 2020 WL 3104673, *2 (S.D.Ill. 2020); Gray v. Acadia Healthcare Co., Inc., 2020 WL 48768......
  • Request a trial to view additional results
5 books & journal articles
  • Table of Cases
    • United States
    • James Publishing Practical Law Books Preparing for Trial in Federal Court
    • May 4, 2010
    ...76, 77-78 (2d Cir. 1974), §10:03 Gomez v. Harvard University , 676 F.Supp. 13, 15 (D.D.C. 1987), §7:65 Gonzales v. National Broad. Co. , 155 F.3d 618, 626-27 (2d Cir. 1998), §4:117.3 Gonzalez v. Metro Transportation Authority, 174 F.3d 1016 (9th Cir. 1999), §2:21 Goodell v. Rehrig Int’l, In......
  • A Practice Commentary To Judiciary Law Article 19
    • United States
    • Cardozo Public Law, Policy and Ethics Journal No. I-1, May 2003
    • May 1, 2003
    ...Inc., 523 N.E.2d 277 (1988). [91] People ex rel. Mooney v. Sheriff, 269 N.Y. 291, 295 (1936). [92] See Gonzales et al v. Nat'l Broad. Co., 155 F.3d 618 (2d [93] Id. [94] See O'Neil, 523 N.E.2d at 279. [95] See Cook v. United States, 267 U.S. 517, 536 (1925). [96] See Matter of Rappaport, 44......
  • Discovery
    • United States
    • James Publishing Practical Law Books Preparing for Trial in Federal Court
    • May 4, 2010
    ...of sources and “facts” acquired in the course of new gathering if the material is confidential. Gonzales v. National Broad. Co. , 155 F.3d 618, 626-27 (2d Cir. 1998); Shoen v. Shoen , 5 F.3d 1289, 1292 (9th Cir. 1993). • The Supreme Court has recognized a federal psychotherapist-patient pri......
  • Developements in the Second Circuit: 1997-98
    • United States
    • Connecticut Bar Association Connecticut Bar Journal No. 73, 1998
    • Invalid date
    ...article to the Connecticut Bar journal, the Second Circuit amended its earlier decision in Gonzales v. National Broadcasting Co., Inc., 155 F.3d 618 (2d Cir. discussed supra at pp. 155-156. In an opinion issued August 27, 1999, the court explicitly reaffirmed the existence of a qualified pr......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT