Ashcraft v. Conoco Incorp., MCGRAW-HILL

Decision Date01 March 1999
Docket NumberCA-95-187-BR3-7,No. 98-2567,MCGRAW-HILL,98-2567
Parties(4th Cir. 2000) HURSHEL L. ASHCRAFT, et al., Plaintiffs, v. CONOCO, INCORPORATED, Defendant-Appellee, CORY REISS, Appellant, and KAYO OIL COMPANY; TRIANGLE FACILITIES, INCORPORATED, Defendants. ASSOCIATED PRESS; THE NEWS & OBSERVER; THE CHARLOTTE OBSERVER; THE BALTIMORE SUN COMPANY; RICHMOND TIMES DISPATCH; THECOMPANIES, INCORPORATED; THE WASHINGTON POST; GANNETT COMPANY, INCORPORATED; DOW JONES AND COMPANY, INCORPORATED; THE NORTH CAROLINA PRESS ASSOCIATION; THE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS, Amici Curiae. (). . Argued:
CourtU.S. Court of Appeals — Fourth Circuit

Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington.

W. Earl Britt, Senior District Judge.

COUNSEL ARGUED: Floyd Abrams, CAHILL, GORDON & REINDEL, New York, New York, for Appellant. Jonathan Drew Sasser, MOORE & VAN ALLEN, P.L.L.C., Raleigh, North Carolina, for Appellee. ON BRIEF: Landis C. Best, CAHILL, GORDON & REINDEL, New York, New York; Stephen T. Smith, MCMILLAN, SMITH & PLYLER, Raleigh, North Carolina; Mark J. Prak, Harold H. Chen, BROOKS, PIERCE, MCLENDON, HUMPHREY & LEONARD, L.L.P., Raleigh, North Carolina; George Freeman, Assistant General Counsel, THE NEW YORK TIMES CO., New York, New York, for Appellant. David E. Fox, Andrew B. Cohen, MOORE & VAN ALLEN, P.L.L.C., Raleigh, North Carolina; George A. Phair, Senior Counsel, CONOCO, INC., Houston, Texas, for Appellee. Rodney A. Smolla, The T.C. Williams School of Law, UNIVERSITY OF RICHMOND, Richmond, Virginia, for Amici Curiae.

Before WIDENER and LUTTIG, Circuit Judges, and Catherine C. BLAKE, United States District Judge for the District of Maryland, sitting by designation.

Reversed by published opinion. Judge Blake wrote the opinion, in which Judge Widener and Judge Luttig joined.

OPINION

CATHERINE C. BLAKE, District Judge:

Cory Reiss, a reporter for the Wilmington, North Carolina, Morning Star newspaper, appeals from the district court's October 23, 1998 order finding him in civil contempt of court and ordering him to an indefinite term of imprisonment for refusing to divulge the identities of certain confidential news sources. We reverse. 1

I.

In December 1995, an environmental torts action was filed in the United States District Court for the Eastern District of North Carolina against Conoco, Inc., and two of its subsidiaries (collectively "Conoco"). Conoco was alleged to be responsible for harmful gasoline contamination present in two underground wells located in Wilmington, North Carolina. The lawsuit was brought on behalf of 178 trailer park residents whose drinking water was drawn from the contaminated wells. The initial liability phase of the lawsuit went to trial before a jury in August 1997. On August 25, 1997, the jury returned a verdict in favor of the plaintiffs, finding that Conoco was liable for both compensatory and punitive damages, as well as for $9.5 million in future medical monitoring costs.

Following the verdict, the jury heard additional evidence relating to the amount of the punitive damages award. Before the jury could report the results of its deliberations, however, the parties reached a comprehensive $36 million settlement, the terms of which they intended to remain confidential. Accordingly, the parties jointly moved the district court to file and maintain the settlement agreement and related documents under seal. Without providing public notice or an opportunity for interested parties to object, the district court signed an order granting the motion "for good cause shown" on September 18, 1997. (J.A. 96-97.)2 The court stated no other findings or reasons supporting its decision to seal the documents. The case was then dismissed, although the district court "retain[ed] jurisdiction for the purpose of managing the Confidential Settlement Agreement." (J.A. 97.)

Mr. Reiss covered the trial for the Morning Star . During July and August 1997, he wrote at least eight stories relating to the case. (See J.A. 239-69.) Using ordinary reporting methods, Mr. Reiss eventually learned the amount of the $36 million settlement through two anonymous sources, both of whom were over 18 years of age. On October 15, 1997, the Morning Star published a story by Mr. Reiss in which the $36 million settlement figure was disclosed. 3 Based on the disclosure of this confidential information, Conoco moved the district court to hold Mr. Reiss, fellow reporter Kirsten B. Mitchell, and the Morning Star in civil contempt. The United States Attorney for the Eastern District of North Carolina also moved the court to hold the three parties in criminal contempt.4

The hearing on these contempt motions took place on December 17, 1997. During the hearing, Mr. Reiss refused to disclose the names of the two individuals who had informed him about the $36 million settlement figure. (See J.A. 179-85.) At the close of the hearing, the court found Mr. Reiss not guilty as to the criminal contempt charge. (J.A. 204.) In a subsequent order issued by the district court on January 21, 1998, Mr. Reiss also was found not guilty of civil contempt. (J.A. 315-16.) In the same order, the district court initially denied Conoco's motion to compel Mr. Reiss to disclose the identities of the two sources who had supplied him with the confidential settlement information. (J.A. 317-18.) Applying the test established by this court in LaRouche v. National Broadcasting Company, 780 F.2d 1134, 1139 (4th Cir. 1986),5 the district court found that the sources' identities were not relevant to the civil contempt proceedings then pending and also that Conoco had failed to exhaust all reasonable alternative means for obtaining the sources' names. (J.A. 318.) 6

On April 13, 1998, Conoco renewed its motion to compel Mr. Reiss to reveal his sources. In arguing that there was a compelling need for the information, Conoco relied entirely on the district court's own alleged interest in learning the sources' identities. (J.A. 346-47.) By order dated September 3, 1998, the district court granted the motion. Again applying the three-part LaRouche test, the district court found, first, that the sources' identities were"relevant to the case in general" and "will help this court determine who violated the [September 22, 1997 confidentiality] order and . . . bring the appropriate sanctions to bear upon that person or persons." (J.A. 369.)7

Skipping to the third prong of the LaRouche test, the district court next found that there was a "compelling" need to know the sources' identities. The district court did not find that Conoco had such a need, however. Rather, the court found that the court itself had "several compelling interests in the information." (J.A. 370.)8 In particular, the court explained that it had "an obligation" to discover the identities of the persons who had divulged the $36 million settlement figure and "to hold them accountable for the breach of the seal placed on the Settlement Agreement." (J.A. 370.) The court further explained that it had "withheld a substantial portion of the settlement funds in the event that the sources are plaintiffs" and that the prompt and proper distribution of these funds was "clearly a compelling interest." (J.A. 370-71.)9

Finally, the district court found that Conoco had now exhausted all reasonable alternative means for obtaining Mr. Reiss' sources' names.10 Accordingly, since it found that all three prongs of the LaRouche test were satisfied, on September 3, 1998, the district court ordered Mr. Reiss to supply the full names and addresses of his two anonymous sources. (J.A. 374.) When Mr. Reiss refused to do so, he was found in civil contempt by order dated October 23, 1998, and remanded to the custody of the United States Marshal "until such time as he purges himself of contempt by complying with the terms of the Orders of this Court dated 3 September 1998 and 13 October 1998." (J.A 411.)11 On October 28, 1998, this court stayed the district court's contempt order pending the outcome of this appeal.

II.

News reporters are "entitled to some constitutional protection of the confidentiality of [their] sources." Pell v. Procunier, 417 U.S. 817, 834 (1974) (citing Branzburg v. Hayes, 408 U.S. 665 (1972)); see also Branzburg, 408 U.S. at 707 ("news gathering is not without its First Amendment protections"). Such protection is necessary to ensure a free and vital press, without which an open and democratic society would be impossible to maintain. See Time, Inc. v. Hill, 385 U.S. 374, 389 (1967) ("A broadly defined freedom of the press assures the maintenance of our political system and an open society"). If reporters were routinely required to divulge the identities of their sources, the free flow of newsworthy information would be restrained and the public's understanding of important issues and events would be hampered in ways inconsistent with a healthy republic. See Minneapolis Star and Tribune Co. v. Minnesota Comm'r of Revenue, 460 U.S. 575, 585 (1983) ("An untrammeled press is a vital source of public information, and an informed public is the essence of working democracy") (internal alterations and citation omitted).

Nevertheless, the reporter's privilege recognized by the Supreme Court in Pell and Branzburg is not absolute and will be overcome whenever society's need for the confidential information in question outweighs the intrusion on the reporter's First Amendment interests. See, e.g., Branzburg, 408 U.S. at 690, 708 (holding that reporter, like ordinary citizen, must respond to grand jury subpoenas and answer questions related to criminal conduct he personally observed and wrote about, regardless of any promises of confidentiality he gave to subjects of stories). On a motion to compel disclosure of confidential news sources, this balancing of the reporter's interests and society's...

To continue reading

Request your trial
31 cases
  • United States v. Sterling
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • July 19, 2013
    ...in effective criminal investigation and prosecution, an interest that simply is not present in civil cases. See Ashcraft v. Conoco, Inc., 218 F.3d 282, 287 (4th Cir. 2000) (applying the LaRouche test to confidential source information in the civil context, but noting Branzburg's "holding th......
  • United States v. Sterling
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • July 19, 2013
    ...in effective criminal investigation and prosecution, an interest that simply is not present in civil cases. See Ashcraft v. Conoco, Inc., 218 F.3d 282, 287 (4th Cir.2000) (applying the LaRouche test to confidential source information in the civil context, but noting Branzburg's “holding tha......
  • The New York Times Co. v. Gonzales
    • United States
    • U.S. District Court — Southern District of New York
    • March 2, 2005
    ...concurrence, Branzburg recognized some form of a qualified First Amendment reporter's privilege. See, e.g., Ashcraft v. Conoco, Inc., 218 F.3d 282, 287 (4th Cir.2000); United States v. LaRouche Campaign, 841 F.2d 1176, 1181 (1st Cir.1988); United States v. Cuthbertson, 630 F.2d 139, 147 (3d......
  • Horne v. WTVR, LLC
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • June 18, 2018
    ...source. We again disagree. This Court reviews a denial of a motion to compel for abuse of discretion. See Ashcraft v. Conoco, Inc. , 218 F.3d 282, 287 (4th Cir. 2000). This Court recognizes a qualified "journalist’s privilege" that protects the media from revealing confidential sources, inc......
  • Request a trial to view additional results
5 books & journal articles
  • Table of cases
    • United States
    • James Publishing Practical Law Books Deposition Objections
    • March 31, 2021
    ...163 F.R.D 299 (E.D. Mo. 1995), §17:52 Arney v. Bryant Sheet Metal Inc., 96 F.R.D. 544 (E.D. Tenn. 1982), §14:03 Ashcraft v. Conoco, Inc. , 218 F.3d 282 (4th Cir. 2000), §9:02 AT&T Corp. v. Sprint Corp., 407 F.3d 560 (2d Cir. 2005), §6:13 Athridge v. Aetna Cas. & Surety Co ., 184 F.R.D. 200 ......
  • The underprivileged profession: the case for Supreme Court recognition of the journalist's privilege.
    • United States
    • University of Pennsylvania Law Review Vol. 154 No. 1, November 2005
    • November 1, 2005
    ...privilege arising under Fed. R. Evid. 501 to refuse to divulge their confidential sources."). (107) See Ashcraft v. Conoco, Inc., 218 F.3d 282, 287 (4th Cir. 2000) ("News reporters are entitled to some constitutional protection of the confidentiality of [their] sources." (citing Pell v. Pro......
  • Privileges for communications with professionals
    • United States
    • James Publishing Practical Law Books Deposition Objections
    • March 31, 2021
    ...malefactors, the public interest weighs heavily in favor of overriding the journalist’s claim of privilege. Ashcraft v. Conoco, Inc. , 218 F.3d 282, 288 (4th Cir. 2000) (privilege does not apply to journalist’s communications with violators of court protective order); In re Grand Jury Proce......
  • Protecting the cloak and dagger with an illusory shield: how the proposed Free Flow of Information Act falls short.
    • United States
    • Federal Communications Law Journal Vol. 62 No. 2, April - April 2010
    • April 1, 2010
    ...McKevitt v. Pallasch, 339 F.3d 530 (7th Cir. 2003) (limiting privilege to confidential sources only); Ashcraft v. Conoco, Inc., 218 F.3d 282 (4th Cir. 2000); Gonzales v. Nat'l Broad. Co., 194 F.3d 29 (2d Cir. 1999); Cusumano v. Microsoft Corp., 162 F.3d 708 (1st Cir. 1998); United States v.......
  • 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