Bell v. City of Des Moines, WHO-T

• Decision Date: 23 September 1987
• Docket Number: WHO-T,A,No. 86-1048,86-1048
• Citation: 412 N.W.2d 585
• Parties: 14 Media L. Rep. 1729 James P. BELL, Individually and as Administrator of the Estate of William B. Argumedo, Deceased; Mary A. Bell; James P. Bell, Father and Next Best Friend of Audra Bell, A Minor; Richard Argumedo; and Cathy Williams, Appellees, v. The CITY OF DES MOINES, Iowa; John Doe and Other Unknown Individual Officers of the Des Moines Police Department, Respondents, and Dennis Kendall andDivision of Palmer Communications Incorporated, Appellants.
• Court: Iowa Supreme Court

Page 585

412 N.W.2d 585

14 Media L. Rep. 1729

James P. BELL, Individually and as Administrator of the Estate of William B. Argumedo, Deceased; Mary A. Bell; James P. Bell, Father and Next Best Friend of Audra Bell, A Minor; Richard Argumedo; and Cathy Williams, Appellees, v. The CITY OF DES MOINES, Iowa; John Doe and Other Unknown Individual Officers of the Des Moines Police Department, Respondents, and Dennis Kendall and WHO-TV, A Division of Palmer Communications Incorporated, Appellants.

No. 86-1048.

Supreme Court of Iowa.

Sept. 23, 1987.

Robert Koop Johnson and Neil J. Fruit, II, of Whitfield, Musgrave, Selvy, Kelly & Eddy, Des Moines, and Michael A. Giudicessi, Des Moines, for appellants.

Thomas J. Lenihan of Reed & Lenihan, Des Moines, for appellees.

Considered by REYNOLDSON, C.J., and HARRIS, LARSON, LAVORATO, and NEUMAN, JJ.

LARSON, Justice.

When William Argumedo committed suicide in Des Moines in 1986, several observers were present, including Des Moines police officers and television reporters from WHO-TV and two other Des Moines stations. Portions of the videotapes made at the scene were aired as a part of the stations' regular newscasts. The plaintiffs, to whom we will refer collectively as Bells, contemplated a suit against the city based on the police officers' handling of the threatened suicide, and they applied to the district court for an order to "perpetuate" the testimony of Dennis Kendall, WHO-TV's news director, for possible use in that suit. See Iowa R.Civ.P. 159-66.

As a part of their requested deposition of Kendall, Bells also asked that the station be ordered to preserve its videotape of the suicide, alleging that the videotape represented "the best and most competent evidence in support of [Bells'] claims" against the city, and unless the court ordered the station to preserve the videotape, it would be destroyed in the normal course of its business.

WHO-TV did not receive notice of the application to perpetuate testimony and did not appear at the initial hearing on it. However, its interest was piqued, to put it mildly, when Kendall was ordered to appear for the deposition and "to have in his possession and make available ... for review and/or copying any and all video-tape" of the Argumedo suicide. ¹

WHO-TV agreed to furnish copies of all footage which had been aired on its newscasts, but it moved to quash the order insofar as it required production of "raw footage," or videotapes which were retained in its files. It contended that these tapes were presumptively privileged and that Bells had failed to rebut that presumption. See Lamberto v. Bown, 326 N.W.2d 305, 309 (Iowa 1982); Winegard v. Oxberger, 258 N.W.2d 847, 849-52 (Iowa 1977). Following a hearing on the station's motion to quash, the court reaffirmed its prior order, and WHO-TV appealed. We reverse and remand.

We need not elaborate on the competing interests at stake in these cases. It is the general rule that a litigant is entitled to "every person's evidence." Lamberto, 326 N.W.2d at 306-07; 8 J. Wigmore, Evidence § 2192, at 70 (McNaughton rev. ed. 1961). On the other hand, there is a countervailing interest in maintaining a free press under the first amendment to the United States Constitution and article I, section 7 of the Iowa Constitution, which has given rise to our recognition of a "qualified" reporter's privilege. See, e.g., Lamberto, 326 N.W.2d at 306-07; Winegard, 258 N.W.2d at 849-52.

In weighing these interests, the scale has generally tilted toward requiring disclosure of the disputed evidence if the case involves a criminal charge, e.g., United States v. Nixon, 418 U.S. 683, 711, 94 S.Ct. 3090, 3109, 41 L.Ed.2d 1039, 1066 (1974), or a grand jury proceeding, e.g., Branzburg v. Hayes, 408 U.S. 665, 685, 92 S.Ct. 2646, 2658, 33 L.Ed.2d 626, 642 (1972). Also, in a civil case, a claim of privilege is frequently subordinated when the party claiming the privilege is involved as a party. A libel case is perhaps the best example. See, e.g., Herbert v. Lando, 441 U.S. 153, 155-58, 99 S.Ct. 1635, 1638-39, 60 L.Ed.2d 115, 121-23 (1979). See generally Lamberto, 326 N.W.2d at 307. The present case, of course, falls outside these categories.

The test for evaluating a claim of reporter privilege was stated in Lamberto:

[A] determination must be made whether the resisting party falls within the class of persons qualifying for the privilege. If that preliminary showing is made, the material is to be treated as presumptively privileged, and the burden falls on the requesting party to satisfy the court by a preponderance of the evidence, including all reasonable inferences, that (1) there is a probability or likelihood that the evidence is necessary and (2) it cannot be secured from any less obtrusive source. If the court is so satisfied, an in-camera examination of the evidence should be ordered.

326 N.W.2d at 309. Under this test, a reporter falling within the "class of persons qualifying for the privilege" is presumptively entitled to its protection. Once this presumptive status is established, the party seeking access to the evidence must show the necessity for it and the unavailability of other sources.

I. In connection with the threshold showing that WHO-TV falls within the protected class, the parties stipulated that

WHO-TV is a television station, and as part of that function it employs a full-time news staff whose function is to gather and edit and disseminate the news, and further, that Mr. Kendall is the news director of WHO-TV.

Bells argue that WHO-TV's status as a news gatherer, standing alone, does not cloak it or its reporter with a presumptive privilege and, if Lamberto may be so read, it should be modified. The test of Lamberto for establishment of a presumptive privilege is clear, and we reaffirm that test here: if the resisting party falls within the class of persons qualified for the privilege, such as a reporter, and the information in question is obtained in the news gathering process, it is presumptively privileged. This, of course, does not mean that a reporter may raise the privilege to avoid testifying, as any other citizen, to observations made as an eyewitness. See Branzburg, 408 U.S. at 685-86, 92 S.Ct. at 2658-59, 33 L.Ed.2d at 642 (testimony before grand jury).

...