Hepps v. Philadelphia Newspapers, Inc.
| Decision Date | 16 March 1977 |
| Docket Number | 36 |
| Citation | 3 Pa. D. & C.3d 693 |
| Parties | Hepps v. Philadelphia Newspapers, Inc |
| Court | Pennsylvania Commonwealth Court |
May term, 1976.
Pre-trial discovery.
Edwin P. Rome and William H. Lamb, for plaintiffs.
David H. Marion and Richard Cantor, for defendants.
The case before us requires a response to a novel and important question: May a plaintiff in a libel action against a newspaper obtain pre-trial discovery of notes made by a reporter while interviewing informants in the course of preparation of a series of news articles thereafter published and allegedly libelous? The question presents an issue of first impression in Pennsylvania.
From the complaint we observe that Maurice Hepps, the individual plaintiff, is the principal stockholder of the corporate plaintiff, General Programming, Inc. (" General" ). The latter entity owns the trademarks " Thrifty Beverage" and " Brewer's Outlet," and licenses such marks, and provides management and consultation services to licensees. The remaining corporate and individual plaintiffs (" Thrifty Beverage" ), some 19 in number, are allegedly licensees of General and engaged in the business of distributing beer and soda in Pennsylvania.
The corporate defendant, Philadelphia Newspapers, Inc. (" PNI" ), publishes the Philadelphia Inquirer, a newspaper of general circulation [1] in the Delaware Valley. The individual defendants, William Ecenbarger (" Ecenbarger" ), and William Lambert (" Lambert" ), are employed by PNI as news reporters.
In their capacity as reporters, Ecenbarger and Lambert prepared a series of articles, later published in the Inquirer, concerning Hepps, General and Thrifty Beverage. The articles endeavor to connect Hepps, General and Thrifty Beverage to certain named " underworld" figures, and organized crime in general. As one such example, in an article published in the Inquirer on May 5, 1975, under the byline of Ecenbarger and bearing the headline: " HOW MAZZEI USED PULL, KEPT BEER CHAIN INTACT," the reporter asserts that former State Senator Frank Mazzei, described variously as a convicted felon and an extortionist, used improper influence or " political muscle" to subvert a ruling of the Pennsylvania Liquor Control Board. The article further asserts that while there is no visible financial link between Mazzei and Thrifty Beverage, " ... there is a clear pattern of interference in state government by Mazzei on behalf of Hepps and Thrifty." Finally, in the same article, Ecenbarger reports that " Mazzei has several underworld associates, one of which is Joseph Scalleat of Hazleton, who is described by the State Crime Commission as a Cosa Nostra leader..." and that " ... Scalleat's wife [2] is a licensed Thrifty distributor in Bucks County."
Alleging the libelous character of such articles, the individual and corporate plaintiffs filed their complaint in trespass against defendants on May 4, 1976. [3]
On May 12, 1976, plaintiffs moved for inspection of documents pursuant to Pa. R.C.P. 4009. On the same day, the court, by the Honorable John M. Wajert, ordered defendants to produce the requested documents for inspection by plaintiffs, but vacated its order on June 1, 1976, so as to permit defendants to file an answer to plaintiffs' motion for inspection. Such answer was filed on June 21, 1976, and admitted possession of the requested documents, but asserted that the same were irrelevant to plaintiffs' cause, plaintiffs' request was made in bad faith, and production would be burdensome and oppressive to defendants. In new matter, defendants claim the news reporter's statutory privilege as to those documents that might suggest or reveal the " sources of defendants' articles."
Although not required to do so, defendants thereafter answered plaintiffs' complaint, admitting the employment of Ecenbarger and Lambert by PNI, and the publication by PNI of the allegedly offending articles. In new matter, defendants assert a series of defenses to plaintiffs' libel action, including truth, fair and accurate reporting on the conduct of public officials and public figures, and publication in good faith, without malice, based upon reliable sources. Plaintiffs replied to the new matter, denying the factual allegations contained therein.
As later refined and narrowed by the parties, plaintiffs' motion for production of documents seeks discovery of notes and memoranda made by reporters Ecenbarger and Lambert in the course of interviews conducted while preparing the articles ultimately published by the Inquirer. Defendants have refused to produce such materials, contending that the same will reveal confidential sources or may lead to the discovery or revelation of such sources, and that such materials are therefore, privileged under the Pennsylvania statute according newsmen the privilege of nondisclosure of sources of information, and thus not a proper subject of discovery as provided in Pa. R.C.P. 4011(c).
Plaintiffs' motion for production also demands inspection of " all documents [in the possession or control of defendants] concerning the performance of either individual defendant in the course of his employment with the Philadelphia Newspapers, Inc."
Defendants refuse to produce such documents on the several bases that such records are irrelevant to plaintiffs' cause, are " confidential and highly personal records," and plaintiffs' request is designed to " harass and annoy" defendants.
Lastly, plaintiffs' motion seeks production of " all articles published in The Philadelphia Inquirer authored [sic] by William Ecenbarger or William Lambert, either individually or jointly with any other person." Defendants refuse plaintiffs' latter request, as well, contending that such articles are, again, irrelevant to plaintiffs' cause, and that the request is made in bad faith with the intent to require an unreasonable investigation and cause unreasonable annoyance, expense and oppression. We treat the issues so defined seriatim.
(1) Reporters' Notes
We consider first the more difficult issue before us, and the matter most vigorously and ably argued by the parties.
Following argument but prior to submission of the instant motion for decision, defendants responded to plaintiffs' first set of interrogatories and in their answers, defendants disclosed the identity of 15 sources of information. As a result, although plaintiffs' requests for production are broadly phrased, [4] the parties have narrowed and limited the issue for decision to the matter of the production of notes made by defendant reporters in the course of interviews with various informants while preparing the allegedly libelous articles for publication. The parties agree that the notes are of two classes: (1) Notes of interviews with disclosed informants which do not reveal and cannot lead to the revelation of the identity of confidential informants, and (2) notes of interviews with both disclosed and confidential informants which either reveal, or might lead to the revelation of, the identity of confidential informants.
Defendants resist production of notes of both classes on four grounds: (1) The notes are protected from discovery, or " privileged" under the First Amendment to the Constitution of the United States; (2) plaintiffs' motion is premature; (3) the notes are protected from discovery under a " thought process privilege," available to news editors and presumably investigative reporters; and (4) the notes are protected from discovery under the privilege accorded news media personnel by the Pennsylvania statute permitting the nondisclosure of sources of information. In view of our disposition, we need treat only the last of these.
As Professor Wigmore has observed, the mere fact that a communication between a journalist and an informant was made in express confidence, or in the implied confidence of a confidential relation does not create a privilege of nondisclosure at common law: 8 Wigmore § 2286 (McNaughton rev. 1961):
Nor does it appear that there is an absolute constitutional testimonial privilege permitting nondisclosure of sources accorded to news reporters under the First Amendment or the Constitution of Pennsylvania. See, for example: Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972) (grand jury proceedings); Garland v. Torre, 259 F.2d 545 (2d Cir. 1958), cert. denied, 358 U.S. 910, 79 S.Ct. 237, 3 L.Ed.2d 231 (1958) (libel action); Taylor and Selby Appeals, 412 Pa. 32, 40, 193 A.2d 181, 184 (1963).
As a consequence, the legislature of Pennsylvania created a testimonial privilege permitting news reporters and other media personnel to refuse to disclose sources of information. [5] It is this statute upon which defendants rely in their refusal to produce reporters' notes.
The privilege of nondisclosure was created by the Act of June 25, 1937, P.L. 2123, sec. 1, as amended December 1, 1959, P.L. 1669, sec. 1, and July 31, 1968, P.L. 858, sec. 1, 28 P.S. § 330, and it provides, in pertinent part:
" No person, engaged on, connected with, or employed by any newspaper of general circulation as defined by the laws of this Commonwealth, or any press association or any radio or television station, or any magazine of general circulation for the purpose of gathering, procuring, compiling, editing or publishing news, shall be required to disclose the source of any information procured or obtained by...
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