Continental Cablevision v. Storer Broadcasting, 83-2116C(1) (formerly No. 81-MISC-101).

• Decision Date: 30 March 1984
• Docket Number: No. 83-2116C(1) (formerly No. 81-MISC-101).,83-2116C(1) (formerly No. 81-MISC-101).
• Citation: 583 F. Supp. 427
• Court: U.S. District Court — Eastern District of Missouri
• Parties: CONTINENTAL CABLEVISION, INC., Plaintiff, v. STORER BROADCASTING COMPANY, Defendant.

583 F. Supp. 427

CONTINENTAL CABLEVISION, INC., Plaintiff, v. STORER BROADCASTING COMPANY, Defendant.

No. 83-2116C(1) (formerly No. 81-MISC-101).

United States District Court, E.D. Missouri, E.D.

March 30, 1984.

Richard Walters, St. Louis, Mo., for plaintiff.

L. William Higley, Carroll J. Donohue, St. Louis, Mo., for defendant.

MEMORANDUM

NANGLE, Chief Judge.

This case is now before this Court on the motion of Ms. Mary (Jari) Jackson (hereinafter "Movant") to quash a deposition subpoena served upon her by defendant Storer Broadcasting Company (hereinafter "Storer"). Movant, a newspaper reporter, contends that the subpoena must be quashed because Storer seeks discovery of matters which are qualifiedly privileged from discovery by the first amendment to the United States Constitution. U.S. Const. amend. I.

I. FACTUAL BACKGROUND

The present motion to quash arises out of a diversity action styled The Continental Cablevision, Inc. v. Storer Broadcasting Company, No. 80-2929, currently pending in the United States District Court for the District of Massachusetts. In that case, plaintiff Continental Cablevision, Inc. (hereinafter "Continental"), alleges that one of Storer's employees libeled Continental in November, 1980, by distributing a written statement (the "Warner Statement") to members of the Florissant, Missouri, City Council. Continental further alleges that the statement was false and caused the Florissant, Missouri, City Council to reject Continental's application for the Florissant cable television franchise and to accept Storer's application. Continental also alleges that the Warner Statement caused Continental to lose other cable television franchises in the St. Louis area. Storer filed a counterclaim for abuse of process, alleging that Continental's action was brought without cause, in bad faith and for an improper purpose.

As part of its discovery, Storer submitted interrogatories to Continental, including the following, seeking the basis for its claim that franchises were lost as a result of the alleged libel:

15. Please list each application for a cable television franchise that Continental claims was denied or otherwise affected as the result of statements alleged in the Complaint to be libelous, and state separately with respect to each:

a) the source of support for Continental's claim that the franchise was denied as the result of the allegedly libelous statement;

b) the identity of any person who has provided Continental with information in support of its claim that the franchise was denied as the result of the allegedly libelous statement; ...

e) describe the information provided to Continental.

In response to this interrogatory Continental identified Movant as a source for the allegation that the Warner Statement caused Continental to lose the Florissant and other franchises:

(a) Continental contends that publication of the libelous statements set forth in the complaint was a proximate cause of the denial of its application for cable television franchises in Florissant and in the unincorporated areas of St. Louis County (Areas A and B) ....

(b) In addition to information apprehended or developed by Continental itself, and inferences drawn therefrom, information supporting its contentions as to denial of the Florissant and St. Louis County franchise applications has been provided by ... Jari Jackson, a reporter for the St. Louis Globe-Democrat ....

(e) ... In early January, 1981 Ms. Jackson informed Mr. Clancy, Mr. Schleyer and Ms. Kuper that she believed rumors that Continental was experiencing financial difficulties and was "for sale", arising after publication of the libelous material in Florissant, had hurt Continental's chances of obtaining both the Florissant and the St. Louis County franchises.

Thereafter, Storer submitted requests for production of documents to Continental and Continental provided a series of memoranda written by the three Continental employees identified in its answer to Interrogatory 15(e), above, and by its local lobbyist, Nathan Kaufman. These memoranda purport to describe conversations they had with Movant in January, 1981. The memorandum of Bonnie J. Kuper states: Ms. Kuper spoke with Movant on January 5, 1981, at 3:00 p.m.; Movant informed Ms. Kuper that Movant had heard rumors that Continental was for sale; and Movant informed Ms. Kuper that in Movant's opinion these rumors had damaged Continental's likelihood of winning any contracts in the unincorporated areas of St. Louis County. The memoranda of Mr. Kaufman, Mr. Clancy and Mr. Schleyer all relate the contents of a conversation between them and Movant on January 5, 1981, at 7:30 p.m. at the University City — Council Chambers meeting. According to these memoranda, Movant told them that she was hearing rumors from "higher-ups", "high officials", and "high places", that Continental was experiencing financial difficulties and was for sale. All three memoranda state that Movant expressed her opinion that these rumors had "hurt Continental in St. Louis County". In addition, Mr. Schleyer's memorandum contains these additional comments:

... Movant indicated that she felt the rumors had hurt our chances in Florissant.

A subsequent call to Movant on Wednesday, January 7, indicated further clarification of this matter. It was her impression that the County Council considered our alleged financial difficulties in their decision. Furthermore, Bob Luechen another reporter indicated to Jari that prior to the County Council's decision some kind of literature was distributed to County Council members regarding the sale or financial status of Continental.

Movant then went on to state, without specifics, that other community officials and other cable company officials believe us to be for sale.

Her final comments were that these rumors were very much a factor in convincing people (Council members) which way to go.

Defendant Storer Broadcasting Company's Memorandum In Opposition To Motion To Quash Subpoena of Mary Jackson, Attachment I at 5 (emphasis in original).

Storer then proceeded to depose Mr. Clancy and Mr. Schleyer. Mr. Clancy testified that the substance of his conversation with Movant was as stated in his memorandum, that Movant did not relate the basis for her alleged statement, that he did not consider his conversation with Movant to be confidential, and that the only persons present during the alleged conversation were Movant, Mr. Kaufman, Mr. Clancy and Mr. Schleyer. Mr. Schleyer had no memory of the conversation beyond the contents of his memorandum.

Storer also deposed each of the Florissant, Missouri, City Council members at the time of the vote. According to Storer, each denied that the Warner Statement had any effect on their ultimate decision.

In March, 1983, Storer served a deposition subpoena on Movant, a reporter for the St. Louis Globe-Democrat, to appear for an oral deposition on March 23, 1983. Movant filed a motion to quash that subpoena on the ground that the information sought was privileged by the first amendment to the Constitution. Specifically, Movant alleged that she had gathered information and written several stories concerning the competition for cable franchises in the St. Louis area, and that some of the information gathered "was obtained from sources with whom Movant had an explicit or implicit understanding or agreement of confidentiality or non-disclosure." Memorandum In Support Of Motion To Quash at 2. In addition, Movant stated that the questions sought to be submitted to Movant on deposition included her sources for an article written by Movant and published on January 9, 1981, concerning the present litigation. Id. at 3. The motion to quash was sustained by Judge Wangelin of this district. However, Judge Wangelin's ruling was expressly made without prejudice to further efforts of Storer to depose Movant.

On April 26, 1983, Storer noticed Movant's deposition upon written questions and served a subpoena to require her attendance to testify. Cross-questions were served on Continental on or about May 31, 1983. A copy of those direct and cross-questions are attached to this Memorandum as Appendix A and B respectively. Storer's direct questions cover the following general categories: 1) background information (questions 1-5 and 15); 2) the substance of Movant's communications to Continental or its employees regarding the effect of the Warner Statement (questions 6, 7, 9, 10, 12 and 13); 3) the substance of Continental's or its employees' communications to Movant (questions 8, 11, 14, 16, 17, 18 and 19); 4) the basis upon which Movant asserts that there was an express or implied agreement of confidentiality with regard to the above information or its source (questions 8(b), 11(b), 17(c) and 20(c)); and 5) whether the information sought was ever disclosed to third parties (question 20(c)). Continental's cross-questions basically expand on Storer's direct questions.

Movant then filed the instant motion to quash the subpoena compelling her to testify.

II. DISCUSSION

Movant contends that the testimony which Storer and Continental seek is privileged and is therefore not subject to discovery. Movant argues that she is entitled to claim a federal common law privilege for a reporter's unpublished information, whether confidential or not. Movant states that the scope of this alleged privilege covers the deposition questions because they seek the contents of her communications with various persons, the sources for her January 9, 1981 article, and the factual basis for her claimed privilege of non-disclosure or confidentiality. Movant claims that the first two (2) categories of information are privileged. As to the third category, apparently, it is her position that once a reporter has invoked the privilege the burden shifts to the party seeking discovery to satisfy a three (3) part balancing test, which focuses upon the information sought, the relevancy of the information...