Arkansas Democrat-Gazette, Inc. v. Brantley

• Decision Date: 07 October 2004
• Docket Number: No. 03-1456.,03-1456.
• Citation: 194 S.W.3d 748
• Parties: ARKANSAS DEMOCRAT-GAZETTE, INC., Petitioner, v. Honorable Ellen B. BRANTLEY, Judge, George Ferguson, III, et al., Respondent.
• Court: Arkansas Supreme Court

194 S.W.3d 748

ARKANSAS DEMOCRAT-GAZETTE, INC., Petitioner, v. Honorable Ellen B. BRANTLEY, Judge, George Ferguson, III, et al., Respondent.

No. 03-1456.

Supreme Court of Arkansas.

October 7, 2004.

Williams & Anderson, PLC, by: Philip S. Anderson, Kelly S. Terry, and Beth Deere, Little Rock, for petitioner.

Mike Beebe, Att'y Gen., by: Melanie Winslow Hoover, Ass't Att'y Gen., Little Rock, for respondent.

BETTY C. DICKEY, Chief Justice.

This case is about copyrights and the appropriation of private property, and the court hereby grants the petition for writ of certiorari of the Arkansas Democrat-Gazette, Inc.

On May 8, 2002, an automobile owned by Oscar and Debra Finkbeiner, and driven by Nicolas Finkbeiner, struck a car driven by Amanda Ferguson. George Ferguson and Jason Jarvis, passengers in Amanda's vehicle, were injured in the accident. The Arkansas Democrat-Gazette, the only daily newspaper with statewide circulation, sent its award-winning staff photographer, Stephen Thornton, to the accident scene. He took twenty-five photographs of the accident scene, and one was published in the Arkansas Democrat-Gazette on May 9. The other twenty-four unpublished images were stored as negatives.

On February 21, 2003, George Ferguson and Jason Jarvis sued Nicholas, Oscar, and Debra Finkbeiner. While the Arkansas Democrat-Gazette was not a party to that lawsuit, the Pulaski County Circuit Court issued a subpoena duces tecum on October 16, 2003, ordering Thornton to appear at a deposition and to bring the accident photographs. Samuel Perroni, attorney for Ferguson and Jarvis, assured Thornton that he would pay the reasonable costs associated with the production of the photographs, but Perroni objected when he learned that the fee was $2,425.00. The newspaper's policy provided that photographic prints for litigation would cost $100 per image for unpublished images and $25 for published images, and all unpublished photographs could only be purchased in their entirety, not individually. In the October 29, 2003 motion to quash the subpoena duces tecum, the appellant explained this policy: "A request for such photographs is deemed to include all photographs taken at the accident scene at issue in the lawsuit. Purchasers must buy the complete set of such photos. Selected images are not available due to staff time required to sort and meet with prospective buyers to peruse negatives . . . The Democrat-Gazette's charges for unpublished, archived photographs for use in litigation is based on the value of the copyrighted material and the administrative burden of locating, selecting, processing, and delivering the photographic images."

In a hearing on November 10, 2003, Judge Brantley denied the motion to quash, saying:

And I will tell you, Ms. Deere, you have made, by bringing the copyright issue up to make me less certain of my ruling than I was when I came in here. Because I'll be the first to tell you that I do not know a whole lot about copyrights. I have to count on other people to educate me. And I understand that the newspaper does have . . . I mean, I can see a variety of ethics that they have, but I guess . . . I mean, as I said, I think a hundred dollars a picture is high but I would not say it is unreasonable. And I also don't think it's really unreasonable to say you've got to buy it all because we don't want you over there taking up our time. And I am going to assume that Mr. Perroni would be fast and decisive and wouldn't cause any trouble, but I can understand some people, if you gave them a choice and they were going to pay a hundred dollars a picture and they had twenty-five pictures to look at, they would move into your office and you would never be able to get them out before they were going to do that.

Nonetheless, as I read Rule 45, you all have information relevant to a lawsuit. Pursuant to a subpoena you have to give it and you can only charge the reasonable cost, is my belief, and I don't think. . . so, I'm granting the motion. Now, I'll tell you, it's not without doubt in my mind. And I think it is an important issue and if you all want to take an appeal up I don't . . . I mean, I'll do whatever I can to facilitate that. But give them the pictures and we'll fight about the money later.

On December 22, 2003, the Democrat-Gazette filed a petition seeking a writ of certiorari with this court, which was the most appropriate means available to them. The right of intervention under Ark. R. Civ. P. 24(a) does not apply. Rule 24(a) provides:

(a) Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute of this state confers an unconditional right to intervene; or (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant's interest is adequately represented by existing parties.

Ark. R. Civ. P. 24(a)(2004).

In Reynolds v. Sears, 327 Ark. 770, 940 S.W.2d 483 (1997), this court said that a non-party may enter into a lawsuit under Rule 24 if he has a "protectable interest in the outcome." Id. at 776, 940 S.W.2d 483. However, in order to intervene under Rule 24(a)(2), the party must prove (1) that he has a recognized interest in the subject matter of the primary litigation, (2) that his interests might be impaired by the disposition of the suit, and (3) that his interest is not adequately represented by existing parties. Medical Park Hospital v. Bancorp South Bank, 357 Ark. 316, 166 S.W.3d 19 (2004)(citing Billabong Prods. Inc. v. Orange City Bank, 278 Ark. 206, 208, 644 S.W.2d 594, 595 (1983)). All three requirements must be satisfied. Pearson v. First National Bank of DeWitt, 325 Ark. 127, 924 S.W.2d 460 (1996). When satisfied, the court must allow the party to intervene. Schacht v. Garner, 281 Ark. 45, 661 S.W.2d 361 (1983).

The subject matter of the underlying litigation is a personal injury suit, Ferguson v. Finkbeiner. The Arkansas Democrat-Gazette has no recognized interest in this lawsuit. It merely has pictures that Plaintiff's counsel wishes to obtain for help with his trial. Should the Arkansas Democrat-Gazette have filed a motion to intervene in the lawsuit, the motion would have been denied since they are unable to satisfy the three mandatory elements laid out above, as required by our case law.

Further, permissive intervention under Ark. R. Civ. P. 24(b) does not apply to the facts of this case. Rule 24(b) states in part:

(b) Permissive Intervention. Upon timely application anyone may be permitted to intervene in an action: (1) when a statute of this state confers a conditional right to intervene; or (2) when an applicant's claim or defense and the main action have a question of law or fact in common.

Ark. R. Civ. P. 24(b)(2004). Absent a statutory conditional right of intervention, Rule 24(b)(2) only applies where there is a common question of law or fact in the main action. Id.

The Arkansas Democrat-Gazette's interest in the lawsuit is in its photos. Notably, the dispute over the photos and the personal injury lawsuit have no relationship. Because there is not a common question of law or fact between the Arkansas Democrat-Gazette's claims and the main action, the Arkansas Democrat-Gazette would not have been allowed to permissively intervene.

Traditionally, in addressing exclusive discovery issues, the court does not grant a non-party's petition for writ of certiorari. For example, in Lupo v. Lineberger, 313 Ark. 315, 855 S.W.2d 293 (1993), the court said that a writ of certiorari was not appropriate for a physician, a non-party expert, who was subpoenaed and required to testify in depositions. The court said that under Ark. R. Civ. P. 26(a), a party has an absolute right to take a deposition. Further, at depositions, the deponent has the right to not answer or the right to seek a protective order under Rule 26(c). These options available to the deponent, in return, do not "take away from the trial court's jurisdiction to sit and pass judgment on each one of the issues raised during discovery." Id. at 320, 855 S.W.2d 293 (upholding the line of cases that support a trial court's broad discretion to decide discovery issues. Ballard v. Martin, 349 Ark. 564, 585, 79 S.W.3d 838, 851 (2002); Banks v. Jackson, 312 Ark. 232, 239, 848 S.W.2d 408, 412 (1993)).

In addition, this court has also said that discovery issues are interlocutory and not appealable. Ford Motor Company v. Harper, 353 Ark. 328, 331, 107 S.W.3d 168, 170 (2003); Farm Service Co-op. of Fayetteville v. Cummings, 262 Ark. 810, 814, 561 S.W.2d 317, 319 (1978).

The central question in the cases mentioned above concerns the production of discovery, which is not the problem in this case. In sum, for a fee, the Arkansas Democrat-Gazette is willing to comply with the discovery (production) request. While this case does raise an interesting discovery problem under Rule 45, the crux of this case centers around how federal copyright law interplays with Rule 45. Instead of a mere discovery issue, this case is about the control of the copyrighted photos. Because of the unique copyright issue and potential copyright infringement, a writ of certiorari is appropriate.

Moreover, Ark. R. Civ. P. 60(k) does not provide the Arkansas Democrat-Gazette with a more appropriate procedural path. Rule 60(k) states in part:

Independent Action to Set Aside Judgment—Writs Abolished. A motion under this rule does not affect the finality of a judgment or decree or suspend its operation, except as provided herein. This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment who was not actually personally served with process or to set aside a judgment or decree for fraud upon the court.

The annotation to this rule...