Application of Cepeda

• Decision Date: 14 August 1964
• Citation: 233 F. Supp. 465
• Parties: Application of Orlando CEPEDA, Petitioner, from an order directing Timothy COHANE, Respondent, to answer certain questions on oral deposition of said Timothy Cohane pursuant to order of the Court or in the alternative to punish him for criminal contempt in event of his refusal or failure to answer if so directed.
• Court: U.S. District Court — Southern District of New York

233 F. Supp. 465

Application of Orlando CEPEDA, Petitioner, from an order directing Timothy COHANE, Respondent, to answer certain questions on oral deposition of said Timothy Cohane pursuant to order of the Court or in the alternative to punish him for criminal contempt in event of his refusal or failure to answer if so directed.

United States District Court S. D. New York.

August 14, 1964.

Lewis & Stein, San Francisco, Cal., Marvin Lewis, San Francisco, Cal., of counsel, for petitioner.

Whitman, Ransom & Coulson, New York City, Patrick Sullivan, New York City, of counsel, for respondent.

TENNEY, District Judge.

Plaintiff Cepeda, petitioner, moves herein for an order, pursuant to Rule 37(a) of the Federal Rules of Civil Procedure, directing deponent Timothy Cohane (hereinafter referred to as "Cohane") to answer certain questions previously put during the course of a deposition. Cohane, in refusing to answer the aforesaid questions, asserted an alleged privilege possessed by newspapermen and those similarly situated, protecting them from the need to reveal the sources of their information.

Briefly stated, this suit for libel was brought by Orlando Cepeda, a baseball player for the San Francisco Giants organization, against Cowles Magazines & Broadcasting, Inc., based on an article about Cepeda written by Cohane and published in the May 21, 1963 issue of defendant's bi-weekly magazine, LOOK.

The cause of action was originally commenced by plaintiff in the Superior Court of the State of California in San Francisco, and was thereafter removed, at the instance of the defendant on the grounds of diversity of citizenship, to the United States District Court for the Northern District of California.

It would appear, from the Court of Appeals decision in the instant case Cepeda v. Cowles Magazines & Broadcasting, Inc., 328 F.2d 869 (9th Cir. 1964), cert. denied, 33 U.S.L. Week 3123 (Oct. 13, 1964), that the District Court granted defendant's motion for summary judgment on the ground that the article was not libelous per se, plaintiff having stipulated that he would not amend his complaint to allege special damages. On appeal, the decision was reversed, the Court of Appeals holding that the article was libelous per se and remanding the case to the District Court for a trial of the issues, to wit, whether the Giant officials, to whom Cohane ascribes certain statements, did, in fact, make such statements — this bearing on the issue of damages (328 F.2d at 871) and on the defense of truth.

Thereafter, on May 28, 1964, the Honorable Lloyd H. Burke, entered an order directing plaintiff to commence taking the deposition of Cohane on or about July 30, 1964, in New York City, pursuant to a stipulation entered into between the parties. The taking of the deposition was commenced on July 30, 1964, in the New York Offices of LOOK Magazine, 488 Madison Avenue. At the taking of the deposition certain questions were propounded to Cohane, which he refused to answer. The deposition was adjourned pending a ruling by the Court as to whether the information sought was privileged.

The questions propounded to Cohane, and which he refused to answer, related to the identity of the Giant officials to whom he ascribed the statements in his article. Thus, for example, at page 8 of the deposition, he was asked which Giant official had given him an indication that Cepeda would be traded — which question he refused to answer. At page 60 of the deposition, he was asked which official had told him that Cepeda had failed to make the "big hit" — which question he also refused to answer. The reason set forth by Cohane for his refusal to answer was that "this information was given to me under the tacit understanding that it was privileged information, that the source would never be revealed." (Page 8 of the Deposition) Cohane similarly refused to answer all questions put to him as to the source of any of the other statements included in the article.

There is no doubt that the questions propounded were germane and relevant to the issues and that the deposition was being taken in good faith by petitioner.

On July 30, 1964, the parties appeared before the Honorable John M. Cannella, a Judge of this Court, for a ruling as to the propriety of the questions propounded and whether the information sought was privileged. He adjourned the matter to the following week since Cohane at the time was not represented by counsel.

The matter came on before me on Wednesday, August 5, 1964, at which time Cohane was represented by counsel and the attorneys for both plaintiff and defendant were present. The parties similarly appeared before me on Thursday, August 6, 1964. At both conferences the parties involved, to wit, Cohane and petitioner, made their respective positions clear.

On August 7, 1964, Cohane was asked certain questions by me in open court. The questions were ones previously put by petitioner during the course of the deposition and to which Cohane had asserted his privilege.

At that time, I informed him that I was of the opinion that the matter was not privileged and directed him to answer the questions, which he, in a most respectful manner, refused to do. In the face of his refusal, in the presence of the Court, to answer questions put by the Court, and which he had been directed to answer, Cohane was adjudged to be in criminal contempt, pursuant to Rule 42(a) of the Federal Rules of Criminal Procedure, and ordered committed to the custody of the Attorney General or his duly authorized representative for a period of ten (10) days. The execution of said sentence was stayed pending a determination of the appeal subsequently taken on August 10, 1964, from the order and commitment. I might add parenthetically that at all times Cohane's manner has been most respectful and proper.

The threshold question presented is that of the proper law to be applied in the determination of the validity of the asserted privilege, to wit, federal law or state law — and if state law, is it pursuant to the procedure substance analysis of Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938) or is it by virtue of Rule 43(a) of the Federal Rules of Civil Procedure? See Massachusetts Mut. Life Ins. Co. v. Brei, 311 F.2d 463, 465-466 n. 3 (2d Cir. 1962); Compare 4 Moore Federal Practice ¶ 26.239 (2d ed. 1963) and 5 Moore Federal Practice ¶ 43.07 (2d ed. 1951) with 2B Barron & Holtzoff § 967 (1961).

The Court of Appeals for the Second Circuit, confronted by the problem, observed that "there is considerable confusion in the decisions as to the application of the Erie case and the Federal Rules of Civil Procedure to state evidentiary privileges. However, the weight of authority appears to favor the view that the state rule is to govern ***." Massachusetts Mut. Life Ins. Co. v. Brei, 311 F.2d 463, 465-466 (2d Cir. 1962); see Krizak v. W. C. Brooks & Sons, Inc., 320 F.2d 37, 43 (4th Cir. 1963). The Court, however, went further and stated that the rule of privilege and the recognition thereof reflected a legislatively determined state policy, and as such it was more than a rule of evidence or a question of procedure but should rather be classified as "substantive or quasi-substantive". 311 F.2d at 466. This rule applies with equal force to assertions of privilege at the deposition stage as well. Merlin v. Aetna Life Ins. Co., 180 F.Supp. 90 (S.D.N.Y.1960).

On the basis of the foregoing it is clear that if the instant case involved the usual situation of deposition and trial taking place in the same state this Court would be bound to look to the law of New York to determine the validity of the asserted privilege. Massachusetts Mutual Life Ins. Co. v. Brei, supra; Merlin v. Aetna Life Ins. Co., supra; cf., Garland v. Torre, 259 F.2d 545, 550 (2d Cir.), cert. denied, 358 U.S. 910, 79 S.Ct. 237, 3 L.Ed.2d 231 (1958). (In Garland, the Court found it unnecessary to determine whether New York law should be applied but nonetheless, in reaching its decision, looked to both New York law which did not recognize a privilege and other "federal and state precedents refusing to recognize such a privilege in the absence of a statute creating one.") Moreover, it seems clear that if New York law would apply, the identity of the source of information is not privileged information. People ex rel. Mooney v. Sheriff, 269 N.Y. 291, 199 N.E. 415, 102 A.L.R. 769 (1936).

However, the case at bar presents a somewhat novel situation for the place of trial and the place of deposition are located in different states. More important, the place of trial, namely, California, recognizes a privilege in this area, whereas New York, the place of deposition, does not. Thus the second question posed is whether the law of the deposition state, wherein there is no privilege, or the law of the trial state, wherein there is a privilege, is to be applied.

Two federal cases involving analogous situations resolved the problem in favor of the deposition state, albeit on different grounds.

Ex parte Sparrow, 14 F.R.D. 351 (N.D. Ala.1953) involved a deposition being taken in Alabama, at the instance of the plaintiff, in a libel action then pending in the United States District Court for the Southern District of New York. The information sought concerned the identity of the source of certain information forming the substance of the libel. The District Court applied the law of Alabama which held the matter to be privileged. Ala.Code tit. 7, § 370 (1958). In upholding the claim of privilege, the Court set forth the following grounds:

"While this court does not consider the question of privilege to be a matter of substance and therefore controlled by Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, it would appear that this court should refer to the statutory law of Alabama in the absence of any Federal rule on privilege.

* * * * * *

"It this Court would not be justified in ignoring

...