Berst v. Chipman

• Court: Kansas Supreme Court
• Writing for the Court: SCHROEDER; FROMME; HERD
• Citation: Berst v. Chipman, 232 Kan. 180, 653 P.2d 107 (Kan. 1982)
• Decision Date: 12 November 1982
• Docket Number: No. 54498,54498
• Parties: , 7 Ed. Law Rep. 437, 8 Media L. Rep. 2593 David BERST, Dale Smith and the National Collegiate Athletic Association, Petitioners, v. Honorable Marion W. CHIPMAN, District Judge, Court Number 7, 10th Judicial District Court of Kansas, and Birmingham Post Company, Respondents.

Page 107

653 P.2d 107

232 Kan. 180, 7 Ed. Law Rep. 437, 8

Media L. Rep. 2593

David BERST, Dale Smith and the National Collegiate Athletic Association, Petitioners, v. Honorable Marion W. CHIPMAN, District Judge, Court Number 7 10th Judicial District Court of Kansas, and Birmingham Post Company, Respondents.

No. 54498.

Supreme Court of Kansas.

Nov. 12, 1982.

Syllabus by the Court

1. Where an order of the trial court denies a litigant a right or privilege which exists as a matter of law for which there is no remedy by appeal, or where a petition for mandamus presents an issue of great public importance and concern, the court may exercise its original jurisdiction in mandamus.

2. Where material sought to be discovered does not relate in any way to the litigants or the issues involved in the lawsuit, the relevancy requirement in K.S.A. 60-226(b ) is not met and discovery should be denied by the trial court.

3. In discovery proceedings when a claim of privilege, confidentiality or irrelevance is raised by a litigant, the court has a duty to conduct an in camera inspection to permit discovery of only relevant documents to protect against unnecessary and damaging disclosure of irrelevant confidential material.

4. Where a non-party has an interest in the confidential nature of material sought to be discovered by a party to litigation and seeks the protective power of the court under K.S.A. 60-226(c ), the court must balance the party litigant's interest in obtaining the requested information with the non-party's interest, as well as the public interest, in maintaining the confidentiality of the material.

5. Where confidential information is sought from a non-party by a litigant in a libel action, the non-party's interest in confidentiality is outweighed where the information sought goes to the central issue, or "heart," of the libel action.

James H. McLarney, of Swanson, Midgley, Gangwere, Clarke & Kitchin, Kansas City, Mo., argued the cause, and Daniel L. Sailler, Kansas City, Mo., of the same firm, and Robert P. Anderson and Edward M. Boyle, of Payne & Jones, Olathe, were with him for petitioners.

Lee Levine, of Baker & Hostetler, Washington, D.C., argued the cause, and Elizabeth Moore, Washington, D.C., of the same firm, and Alan P. Blinzler and Peter A. Martin, of Blackwell, Sanders, Matheny, Weary & Lombardi, Olathe, were with him for respondents.

SCHROEDER, Chief Justice:

This original mandamus action filed May 20, 1982, was heard by the court on May 21, 1982, and resulted in the announcement of our decision on May 27, 1982, by the filing of our abbreviated opinion in Berst v. Chipman, 231 Kan. 369, 653 P.2d 106 (1982). This formal opinion is supplemental thereto. The mandamus action was brought by petitioners David Berst, Dale Smith and the National Collegiate Athletic Association (NCAA) with office headquarters in Johnson County, Kansas, seeking to set aside the order of the District Court of Johnson County denying petitioners' motion for a protective order pursuant to K.S.A. 60-226(c ). The precise issue presented is whether the petitioners have a legal interest in protecting information obtained in the course of confidential investigations from discovery in a libel action in the state of Alabama to which they are not parties.

As related by the facts recited in the prior opinion, documents were sought to be discovered from the petitioners by the Birmingham Post Company in connection with its defense of a libel action filed in the Circuit Court of Madison County, Alabama. The plaintiff in that action, Edward E. Seal, principal of Butler High School in Huntsville, Alabama, alleged that the Birmingham Post Company and others published defamatory statements in an article in the Birmingham Post-Herald newspaper regarding investigations by the newspaper and the NCAA into the recruitment of a high school basketball player, Bobby Lee Hurt, by the University of Alabama. Subsequently Hurt filed a libel action against the Birmingham Post in connection with alleged defamatory statements appearing in the same newspaper. The petitioners are not parties to either of the foregoing actions.

The documents in question were obtained by the NCAA in the course of its investigation into possible violations of NCAA rules which occurred during Hurt's recruitment by the University of Alabama. As a result of an article alleging the University of Alabama had improperly recruited Hurt, appearing in the Birmingham Post-Herald prior to the article giving rise to the libel action involved here, the NCAA directed Dale Smith, a member of its staff, to investigate the University of Alabama's conduct. Smith interviewed several people who had information relevant to the NCAA's investigation, assuring them that the source and substance of any information he received was confidential. These sources included Hurt, Seal, co-workers of Seal, Hurt's basketball coach, collegiate coaches from institutions other than the University of Alabama who also recruited Hurt, and other individuals in the community who had information relevant to the recruitment. The content of these interviews was later reduced to written memoranda by Smith which were placed in the NCAA's confidential file on the investigation. Prior to the publication of the article giving rise to the libel action, the newspaper's request for information regarding the NCAA's investigation was denied based on the NCAA's policy that any information obtained in the course of an investigation is confidential.

To protect the confidential nature of the file the petitioners filed a motion for a protective order in the District Court of Johnson County to quash the newspaper's discovery request. The petitioners alleged the request was overbroad, vague and indefinite; many of the documents sought were totally irrelevant to any issue in the libel action; and disclosure of such confidential information would infringe on the rights of persons who are not parties to the libel action, either from whom the NCAA had received information, or to whom information in the file related. After a full hearing the court denied the petitioners' motion. An in camera inspection of the NCAA's file was not conducted. The court reasoned:

"4. The movants in this case do not come within any of the privileges created by the statutes of this state. Plaintiffs claim and the Court holds that trial courts are vested with broad discretion in supervising course and scope of discovery. In the proper exercise of this discretion, the Court must weigh the interests of the private litigants in obtaining the information against whatever public interest may exist in maintaining confidential relationships.

....

"6. Plaintiff's contention that if the information contained in its files is made public, that then the NCAA will be powerless to gain information regarding alleged violations of its rules, is outweighed by the importance of the defendants needing access to relevant information that may lead to admissible evidence to defend itself from the allegation of libel so that defendants may continue to exercise, without fear, their rights under the First Amendment to the Constitution of the United States." (Citations omitted.)

Following the court's decision, subpoenas were issued ordering the petitioners to appear for depositions on May 21, 1982. On May 20, 1982, a petition for mandamus was filed by petitioners in this court seeking an order that a protective order be issued. Due to urgency of the matter and public interest involved, arguments were heard by this court on May 21, 1982. After conducting an in camera inspection of the NCAA's file this court issued a protective order on May 27, 1982. This order allowed the Birmingham Post Company to discover only specified statements made to Dale Smith by the litigants, their fellow employees and other individuals, which were specifically relevant to the libel action. This decision was based on the following considerations.

At the outset we note that the trial court is vested with broad discretion in supervising the course and scope of discovery. Vickers v. City of Kansas City, 216 Kan. 84, Syl. p 2, 531 P.2d 113 (1975). Though the trial court's discretion cannot be controlled by mandamus, where an order of the trial court denies a litigant a right or privilege which exists as a matter of law, and there is no remedy by appeal, mandamus may be invoked. Hulme v. Woleslagel, 208 Kan. 385, 493 P.2d 541 (1972). In addition, where a petition for mandamus presents an issue of great public importance and concern, the court may exercise its original jurisdiction in mandamus and settle the question. See Mobil Oil Corporation v. McHenry, 200 Kan. 211, 239-43, 436 P.2d 982 (1968); A.T. & S.F. Hospital Ass'n v. State Commission of Revenue & Taxation, 173 Kan. 312, 316, 246 P.2d 299 (1952).

Whether the petitioners have a protectable interest in maintaining the confidentiality of their private investigation into possible infractions of NCAA rules undoubtedly presents a legal question of significant public interest. Substantially affected are the privacy interests of those persons to whom information in the file relates or who have passed on information to the NCAA under a pledge of confidentiality, as well as the NCAA's ability to perform one of its primary functions, that of policing its own ranks to prevent corruption in collegiate athletics. The petitioners would not have a remedy by appeal as the information sought would irretrievably have been disclosed prior to the time in which an appeal could be taken. Thus, a mandamus action may properly be entertained. Muck, Administratrix v. Claflin, 197 Kan. 594, 596, 419 P.2d 1017 (1966).

To fully appreciate the NCAA's high degree of interest in preserving the confidentiality of their investigation files and the identities of their sources, it is helpful to understand the self-policing function of the NCAA and how this system...