Gadsden County Times, Inc. v. Horne

• Decision Date: 10 February 1983
• Docket Number: No. AD-280,AD-280
• Citation: 426 So.2d 1234
• Parties: 9 Media L. Rep. 1290 GADSDEN COUNTY TIMES, INC., Timothy O. Matthew, Collins Conner and Creston Nelson-Morrill, Petitioners, v. Mallory E. HORNE, Respondent.
• Court: Florida District Court of Appeals

Page 1234

426 So.2d 1234

9 Media L. Rep. 1290

GADSDEN COUNTY TIMES, INC., Timothy O. Matthew, Collins Conner and Creston Nelson-Morrill, Petitioners, v. Mallory E. HORNE, Respondent.

No. AD-280.

District Court of Appeal of Florida,

First District.

Feb. 10, 1983.

Jerome M. Novey and William Snow Frates of Frates, Jacobs, Farrar, Novey & Blanton, and Sidney L. Matthew of Gorman & Matthew, Tallahassee, for petitioners.

Mallory E. Horne of Horne, Rhodes, Jaffry, Horne & Carrouth, Tallahassee, pro se.

ERVIN, Judge.

Petitioners, the Gadsden County Times, Inc. [hereinafter: Times], Timothy O. Matthew, Collins Conner and Creston Nelson-Morrill, ask this court to review by certiorari a pre-trial discovery order compelling Conner to disclose the identity of confidential sources who provided her with information which was the basis for an allegedly defamatory article published by the Times. For the reasons following, we grant the petition and quash the lower court's order.

This litigation stems from an article published by the Times on June 21, 1979 which stated, in part:

Federal investigations, described as "colossal", have extended into the multi-state business dealings of Quincian Phillip Fleming, former Florida Senate President Mallory Horne and Tallahassean Thomas Patrick McGlon, who was arrested last week for importing, selling and distributing cocaine, The Times learned this week.

The queries into corporate transactions involving the three men are believed to have sprung from last year's massive probe of mail fraud, conspiracy, stolen vehicles and loan fraud which was launched simultaneously in Illinois, New York, Georgia and Alabama, according to Times sources.

The respondent, Mallory Horne [hereinafter: Horne], subsequently filed a civil action for defamation against the petitioners on the basis of the June 21 article. That litigation has been marked by extensive pre-trial discovery and numerous motions filed by both sides. ¹ In this instance we are asked to review a discovery order entered April 21, 1981, compelling Conner to identify the confidential sources who provided her with information relating to the existence of the "colossal" investigation referred to in the article. When Conner refused to disclose those sources during the taking of her deposition, Horne moved for an order compelling such testimony. The trial court, in granting the motion over objections, concluded that

... [a]n essential element to Plaintiff's cause is that he establish malice. Knowing the names of sources and what was related to defendants and how Defendant reporter reported this information has a direct bearing on whether or not malice was present. It is then very relevant and material to the issues in this cause.

It is not incumbent on Plaintiff to be required to pursue other avenues in attempting to determine the names of the sources used by defendants in formulating the news article in question. The right of Plaintiff to full and complete discovery from defendants in the pursuit of his claim is paramount to the immunity claimed by defendants in refusing to name their sources. See Caldero v. Tribune Publishing Company, et al., 562 P.2d 791; Branzburg v. Hayes, Judge, etc., et al., 408 U.S. 665 , 33 L.Ed.2d 626; Garland v. Torre, 259 F.2d 545 (cert. den., U.S.S.Ct. at 358 U.S. 910 [79 S.Ct. 237, 3 L.Ed.2d 231] ); Herbert v. Lando, 441 U.S. 153 , 60 L.Ed.2d 115 (1979).

Because we find that the lower court's conclusions and its reliance on the above cited cases are contrary to Florida law on this issue, we consider certiorari to be an appropriate remedy. As we previously observed in Gadsden County Times Inc. v. Horne, 382 So.2d 347 (Fla. 1st DCA 1980),

[a]ppellate review of interlocutory orders by certiorari is a remedy available in a restricted category of cases. Certiorari will be granted only in cases in which it clearly appears that there is no full, adequate and complete remedy available to the petitioner by appeal after final judgment, as where (a) the trial court has acted without or in excess of its jurisdiction, or (b) its order does not conform to the essential requirements of law and may cause material injury throughout subsequent proceedings for which the remedy by appeal will be inadequate.

Id. at 348 (citations omitted). It has also been stated that certiorari is the "appropriate vehicle for testing the correctness of an order governing discovery procedures." Malt v. Simmons, 405 So.2d 1018, 1018-1019 (Fla. 4th DCA 1981). Accord, Manatee County v. Estech General Chemicals Corp., 402 So.2d 75 (Fla. 2d DCA 1981); Affiliated of Florida, Inc. v. U-Need Sundries, Inc., 397 So.2d 764 (Fla. 2d DCA 1981); Everglades Protective Syndicate, Inc. v. Makinney, 391 So.2d 262 (Fla. 4th DCA 1980). This is because

[i]f plaintiff is wrongfully required to answer defendant's interrogatories, she is beyond relief. We conceive no means by which on appeal this court could extract such knowledge, once gained, from the mind of the defendant, for truly "the moving finger having writ moves on nor any appeal shall lure it back to cancel half a line."

Boucher v. Pure Oil Co., 101 So.2d 408, 410 (Fla. 1st DCA 1957). Review by certiorari is "most appropriate when used to review orders allegedly improperly compelling discovery." Powell v. Wingard, 402 So.2d 532, 534 (Fla. 5th DCA 1981) (e.s.). See also, Haddad, The Common Law Writ of Certiorari in Florida, 29 U.Fla.L.Rev. 207 (1977). In this case petitioners contend that the lower court's order fails to conform to the essential requirements of law and will cause material injury for which no appellate remedy will be adequate. They argue that use of confidential sources is central to the news gathering and reporting process and that forced disclosure of such sources will substantially impair the effectiveness of reporters in the future. Once the identity of a confidential source is disclosed, they contend, the damage is done and cannot be later reversed by final appellate review. We agree and find, in this situation, that petitioners have reached "the level of material injury required for certiorari intervention." Gadsden County Times, 382 So.2d at 348.

The issue then becomes whether the trial court's order fails to conform to the essential requirements of law. In resolving this important issue we find it instructive to trace the evolution of the law relating to what the Florida Supreme Court has described as "the relationship between journalists and persons who give them information for publication hoping to remain anonymous." Morgan v. State, 337 So.2d 951, 952 (Fla.1976). The first case to address that issue in the context of civil litigation was Garland v. Torre, 259 F.2d 545 (2d Cir.1958). In Garland, relied on by the lower court in the case sub judice in compelling disclosure, the famed actress Judy Garland brought a defamation action against CBS and a reporter, Marie Torre, based on allegedly defamatory statements made by CBS executives to Torre and subsequently published by Torre in her newspaper column. In attempting to discover which CBS executive had provided Torre with the information, Garland's attorneys deposed three top CBS executives, all of whom denied any knowledge of the incident. Finally Garland's attorney deposed Torre who, like Conner in this case, refused to disclose her source. In reviewing the lower court's order compelling the disclosure of Torre's source, the Second Circuit rejected the argument that a First Amendment privilege existed which would insulate reporters from forced disclosure of confidential sources, finding that, under the facts before it, if such an interest existed, it must "give place under the Constitution to the paramount public interest in the fair administration of justice." Id. at 549. Decisive in Garland were the facts that Garland had made "reasonable efforts" through deposition of CBS executives to discover the identity of the source, but to no avail; that the claim itself was not "patently frivolous," and that the information sought "was of obvious materiality and relevance." Id. at 551.

Nearly fifteen years later the United States Supreme Court addressed the narrow issue of whether the obligation of reporters to respond to grand jury subpoenas, is the same as that of other citizens, in a trilogy of cases known collectively as Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972), ² involving the refusal of reporters to disclose the identities of confidential sources to grand juries investigating "traffic[ing] in illegal drugs, ... assassination attempts on the President, and ... violent disorders endangering both persons and property." 408 U.S. at 701, 92 S.Ct. at 2666, 33 L.Ed.2d at 651. The Branzburg majority ³ recognized that the newsgathering process qualifies for First Amendment protection: "[W]ithout some protection for seeking out the news, freedom of the press could be eviscerated." 408 U.S. at 681, 92 S.Ct. at 2656, 33 L.Ed.2d at 639. In his concurring opinion, Justice Powell cautioned that the issue of the disclosure of confidential sources must be decided on a case-by-case basis by "striking ... a proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct." 408 U.S. at 710, 92 S.Ct. at 2671, 33 L.Ed.2d at 656.

Subsequent to Branzburg, the trend among those courts that have addressed the issue of confidential sources is to recognize that a limited or qualified privilege does exist to protect the identity of such sources from forced disclosure absent a showing of compelling interest outweighing that privilege. This trend has been particularly apparent in cases in which a reporter, who is not a party to a civil action, is subpoenaed and deposed regarding confidential sources.

In its finding that Branzburg had acknowledged the existence of a limited or conditional privilege, the Ninth Circuit commented as follows:

A...