Gagnon v. District Court In and For Fremont County

• Decision Date: 06 July 1981
• Docket Number: No. 81SA71,81SA71
• Citation: 632 P.2d 567
• Parties: 7 Media L. Rep. 1755 William GAGNON and The Star-Journal Publishing Corporation, Petitioners, v. The DISTRICT COURT In and For the COUNTY OF FREMONT, State of Colorado and TheHonorable John Anderson, One of the Judges Thereof, Respondents.
• Court: Colorado Supreme Court

Page 567

632 P.2d 567

7 Media L. Rep. 1755

William GAGNON and The Star-Journal Publishing Corporation Petitioners, v. The DISTRICT COURT In and For the COUNTY OF FREMONT, State of Colorado and TheHonorable John Anderson, One of the Judges Thereof, Respondents.

No. 81SA71.

Supreme Court of Colorado.

July 6, 1981.

Rehearing Denied Aug. 24, 1981.

Petersen & Fonda, P. C., William F. Mattoon, David W. Crockenberg, Pueblo, for petitioners.

John Anderson, pro se.

Fishman & Geman, P. C., Donald T. Trinen, Stephanie M. Smith, Denver, for respondents.

Cooper & Kelley, P. C., Thomas B. Kelley, Denver, for amicus curiae, The Colorado Press Ass'n.

HODGES, Chief Justice.

In this original proceeding we issued a rule to show cause why an order of the respondent district court compelling the disclosure of a newspaper reporter's confidential source and the production of documents from that source should not be reversed. From our review of the record we conclude that the order was not an abuse of discretion. We therefore discharge the rule.

On August 5, 1980, a news article appeared in the Pueblo Chieftain newspaper concerning the operation of the First National Bank of Florence. Included in the article were the following paragraphs:

"Among the many concerns of the Comptroller with the bank's operation was the cost of accounting and management services provided by Fred T. Crussell, a Canon City certified public accountant.

"Crussell recently told The Chieftain that billing to the bank for these services was somewhere between $30,000 and $40,000, but a negotiated settlement for $16,000 was reached after some bank board members charged that the fees were exorbitant."

On August 8, 1980, Crussell, who is the plaintiff in the action pending below, brought suit against the Star-Journal Publishing Corporation (Star-Journal), publisher of the Pueblo Chieftain, alleging that the above quoted paragraphs were false, defamatory, and highly damaging to plaintiff's personal and professional reputation.

In the normal course of discovery conducted in connection with his defamation action, plaintiff deposed William Gagnon, the reporter whose byline appeared on the article, concerning his sources of information for the article. In response to a request for "all the documents...relating to the matter raised in and by the (plaintiff's) complaint," Gagnon refused to disclose the name of one source or to produce any documents given to him by that source. The plaintiff then filed a motion to compel disclosure, and Star-Journal thereupon filed a counter-motion for protective orders. At a hearing on these motions, Star-Journal submitted to the trial judge for his review a sealed envelope containing the documents given to Gagnon by the confidential source.

As the close of this hearing on February 5, 1981, the trial judge granted the plaintiff's motion to compel. In making his ruling, the trial judge stated that:

"(C)onsidering all the public policy reasons that might attach to granting confidentiality..., I find that the need for due process in this lawsuit overcomes the need for confidentiality."

It is not clear from the record whether the trial judge had reviewed the documents in the sealed envelope at the time he made this ruling. However, the trial judge issued a written order on February 20, 1981 nunc pro tunc February 5, 1981 which embodied and further explained his oral ruling. This written order states that from a review of the documentary evidence the trial judge found the material to be clearly relevant. From this it is quite obvious that the trial judge reviewed the documents in the sealed envelope before he issued the written order. ¹

The nunc pro tunc order of the trial judge contained the following findings "From a review of the pleadings, and the documentary evidence presented, the Court finds the material is clearly relevant or would result in the exposition of other facts and circumstances that would lead to clearly relevant information. The Court finds that no alternate source is shown, and the Court should not speculate on that point. There is no Constitutional privilege involved and there is no 'press shield' law in Colorado. (Citation omitted.)... Mr. Gagnon's article itself is what is in question and irrefutably his source or informant had much to offer him. The evidence can hardly be 'remotely relevant.' "

A motion to compel discovery is committed to the discretion of the trial court and will be upheld on appeal absent a clear abuse of discretion. Zerilli v. Smith, --- F.2d ----, No. 79-2466 (D.C.Cir. April 13, 1981); Baker v. F & F Investment, 470 F.2d 778 (2d Cir. 1972), cert. denied, 411 U.S. 966, 93 S.Ct. 2147, 36 L.Ed.2d 686 (1973); Mayer v. District Court, 198 Colo. 199, 597 P.2d 577...