Gordon v. Boyles

• Decision Date: 11 September 2000
• Docket Number: No. 99SA86., No. 99SA85, No. 99SA369
• Citation: 9 P.3d 1106
• Parties: In re Bryan GORDON and Betty Gordon, Plaintiffs, v. Peter BOYLES and Jacor Broadcasting of Colorado, Inc., a Colorado corporation, Defendants. Bryan Gordon and Betty Gordon, Plaintiffs-Appellees, v. Peter Boyles and Jacor Broadcasting of Colorado, Inc., a Colorado corporation, Defendants-Appellants.
• Court: Colorado Supreme Court

9 P.3d 1106

In re Bryan GORDON and Betty Gordon, Plaintiffs, v. Peter BOYLES and Jacor Broadcasting of Colorado, Inc., a Colorado corporation, Defendants.

Bryan Gordon and Betty Gordon, Plaintiffs-Appellees, v. Peter Boyles and Jacor Broadcasting of Colorado, Inc., a Colorado corporation, Defendants-Appellants.

Nos. 99SA369, 99SA85, 99SA86.

Supreme Court of Colorado, En Banc.

September 11, 2000.

Bruno, Bruno & Colin, P.C., Marc F. Colin, Christina M. Habas, R. Stephen Hall, Denver, Colorado, Attorneys for Bryan Gordon and Betty Gordon.

Hall & Evans, L.L.C., Daniel R. Satriana, Jr., Steven M. Gutierrez, Joyce L. Jenkins, Denver, Colorado, Attorneys for Jacor Broadcasting of Colorado, Inc.

William H. Haring, P.C., William H. Haring, Denver, Colorado, Attorney for Christopher Damian Gallegos.

Ken Salazar, Attorney General, Dianne E. Eret, Assistant Attorney General, State Services Section, Denver, Colorado, Attorneys for Honorable Herbert L. Stern, III and the District Court, City and County of Denver.

Faegre & Benson LLP, Thomas B. Kelley, Christopher P. Beall, Denver, Colorado, Baker & Hostetler LLP, James A. Clark, L. Andrew Cooper, Denver, Colorado, Attorneys for Amici Curiae The Denver Post Corporation, The Denver Publishing Company, and The Colorado Press Association.

Hall & Evans, L.L.C., Daniel R. Satriana, Jr., Steven M. Gutierrez, Joyce L. Jenkins, Denver, Colorado, Attorneys for Peter Boyles.

Justice BENDER delivered the Opinion of the Court.

I. INTRODUCTION

In these combined original proceedings and appeal, we first address claims asserted under Colorado's statutory newsperson's privilege to resist compelled disclosure of confidential sources. Second, we address a claim invoking Colorado's attorney-client privilege to protect communications between co-defendants in a civil case and their joint counsel.

In this case, one of the defendants, local radio talk show host Peter Boyles, made allegedly defamatory comments about one of the plaintiffs, police officer Bryan Gordon. Boyles reported that Gordon stabbed another officer in a fight over a woman at a Denver nightclub. With respect to the confidential sources upon whom Boyles relied for his radio broadcasts about Gordon, the trial court ordered Boyles to disclose information about the details provided by the sources, their reliability, and their identities. Boyles steadfastly refused, citing the newsperson's privilege pursuant to section 13-90-119, 5 C.R.S. (1999). As a result of Boyles's refusal to disclose his sources, the trial court held Boyles in contempt.

After Boyles refused to disclose the identities of his sources, the trial court ordered Boyles's employer (Jacor Broadcasting of Colorado, Inc., who is also Boyles's co-defendant in the defamation case) and Boyles's news supervisor (Chris Gallegos, a witness but not a party to the defamation case) to disclose the identities of Boyles's confidential sources. Gallegos and Jacor argue that the trial court's order violated Colorado's statutory newsperson's privilege, which shields them from having to divulge the news information. In addition, Jacor argues that the order compelling it to reveal Boyles's sources violates the attorney-client privilege pursuant to section 13-90-107(1)(b) because Jacor learned the identities of the sources during confidential communications with the attorney that represents both Jacor and Boyles. Boyles, Jacor, and Gallegos each seek review of the trial court orders, arguing that the trial court improperly considered their asserted privileges and wrongfully ordered them to disclose the identities of Boyles's confidential sources.

We hold that the newsperson's privilege in Colorado is a qualified privilege, not an absolute one. We approve the test articulated by the trial court with some modifications. To avoid the operation of this privilege, a trial court must find that the three statutory conditions of section 13-90-119(3)(a) through (c) are satisfied. We hold that in defamation cases where the defendant is a newsperson, the trial court must make a preliminary determination of whether the plaintiff has made a satisfactory showing of the probable falsity of the defendant's allegedly defamatory statements at the time the statements were made. In our view, the proof of probable falsity is an integral part of the balancing test required by the third prong of the newsperson's statutory privilege under section 13-90-119(3) because the First Amendment was not designed to protect the reporting and dissemination of false statements.

With respect to Boyles's appeal in No. 99SA369, we reverse the $5,000 contempt fine imposed on Boyles because the trial court did not make findings pursuant to the newsperson's privilege statute at the time the court ordered Boyles to disclose his source's identities, and we remand this case to the trial court for further proceedings consistent with this opinion.

We make our rule absolute in No. 99SA85 and vacate the trial court's order requiring Gallegos to disclose Boyles's confidential sources. The trial court may order Gallegos to disclose Boyles's sources, but only after reassessing Boyles's assertion of the newsperson's privilege under the standards we articulate in this opinion.

In addition to instructing the trial court to reconsider its orders to Boyles and Gallegos, we make our rule absolute in No. 99SA86, vacating the trial court's order requiring Jacor to disclose Boyles's sources. Because Jacor did not obtain the news information while acting in its capacity as a newsperson, it cannot assert the newsperson's privilege. However, Jacor learned the identities of Boyles's confidential sources only in the context of confidential attorney-client communications with a co-defendant and joint counsel. Because we apply the attorney-client privilege to communications between co-defendants and joint counsel concerning matters of common interest to their joint defense, the privilege applies to Jacor and the trial court's order must be vacated.

II. FACTS AND PROCEEDINGS BELOW

During the late night and early morning hours of January 31 and February 1, 1997, several people engaged in multiple altercations at Pierre's Supper Club in Denver. At least six off-duty Denver police officers were present at the club over the course of the night. During one of the fights, someone stabbed Denver Police Officer Ron Thomas, who was then taken to Denver Health Medical Center for treatment of a laceration on his stomach.

In mid-April 1997, Boyles broadcast several reports on his radio talk show about the incident at the nightclub and the stabbing, claiming that officer Bryan Gordon stabbed Thomas in a fight over a woman. Boyles stated that the Denver Police Department covered up the incident because Gordon is the son of a high-ranking police official. Boyles also asserted that Gordon had been charged with domestic violence in the past.

During his broadcasts, Boyles claimed that confidential sources provided him with this information and that his own investigation into the matter confirmed the reports about Gordon. Boyles stated that at least some of his information came from people associated with gangs, that the sources were "no angels," and that they were "borderline gang members who are struggling with some drug problems."

Jacor and Gallegos became aware of the identities of Boyles's confidential sources. At least two of Jacor's employees—Lee Larsen and Kris Olinger—learned the identities of Boyles's sources during meetings with the joint counsel for Boyles and Jacor. Gallegos learned the identities of two of the sources in his capacity as Boyles's supervisor, directly speaking with one of the sources before Boyles's broadcasts. In contrast to Larsen and Olinger, Gallegos learned the identities of the sources directly from Boyles, outside the context of meetings with Boyles's and Jacor's shared counsel.

The Denver Police Department conducted investigations about the events and the way in which the off-duty officers handled the situation at the nightclub. According to the police reports concerning the fight, no witnesses stated that Gordon was at the nightclub when Thomas was stabbed or that Gordon took part in the fight. Although the Department's internal investigation files (IAB files) remain confidential, the trial court found, after thoroughly reviewing the IAB files in camera, that none of the witnesses interviewed in the IAB files said that Gordon was at the scene when Thomas was stabbed.

On August 22, 1997, Bryan and Betty Gordon filed suit against Boyles and Jacor for injuries that allegedly resulted from Boyles's broadcasts about Gordon's involvement in the fight with Thomas and the Police Department's supposed cover-up of the incident. Gordon brought suit for defamation, intentional infliction of emotional distress, false light, and negligent supervision; Betty Gordon filed a claim for loss of consortium.

With respect to the confidential sources upon whom Boyles relied for his broadcasts about Gordon, Gordon sought discovery of details provided by the sources, the bases for Boyles's belief in the reliability of the sources, and the identities of the sources. To obtain this information, Gordon used various discovery tools: interrogatories, requests for admission, and requests for production. Gordon sought this information claiming that it is directly relevant to the issue of what Boyles knew or recklessly disregarded about the truth or falsity of the reports given by his confidential sources.¹ See, e.g., Capuano v. Outlet Co., 579 A.2d 469, 477 (R.I.1990)

(noting relevance of confidential source's identity in defamation case).²

Boyles provided only partial answers to many of Gordon's interrogatories and requests, and refused to answer other questions, claiming protection under section 13-90-119(2), which shields a newsperson from being questioned about news information in official proceedings except under certain...