Madden, In re

• Decision Date: 06 August 1998
• Docket Number: No. 97-3267,97-3267
• Citation: 151 F.3d 125
• Parties: In re: Mark MADDEN. TITAN SPORTS, INC., A Delaware Corporation, v. TURNER BROADCASTING SYSTEMS, INC.; World Championship Wrestling, Inc.; Eric Bischoff, Titan Sports, Inc., Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 125

151 F.3d 125

In re: Mark MADDEN.

TITAN SPORTS, INC., A Delaware Corporation, v. TURNER BROADCASTING SYSTEMS, INC.; World Championship

Wrestling, Inc.; Eric Bischoff,

Titan Sports, Inc., Appellant.

No. 97-3267.

United States Court of Appeals, Third Circuit.

Argued Dec. 9, 1997.

Decided Aug. 6, 1998.

Robert L. Byer, (Argued), Jerry S. McDevitt, Paul K. Stockman, Kristen M. Del Sole, Kirkpatrick and Lockhart, Pittsburgh, Pennsylvania, for Appellant.

David Dunn, John H. Pope, (Argued), Davis, Scott, Weber & Edwards, New York, New York, for Appellees.

Before: NYGAARD, ALITO and LAY, ^* Circuit Judges.

NYGAARD, Circuit Judge.

AMENDED OPINION OF THE COURT

The issue on appeal is whether the district court erred by concluding that Mark Madden, a nonparty witness in this civil matter, is entitled to claim a journalist's privilege. We hold that he is not and will reverse.

I.

We will summarize only those facts necessary to give context to the issue. Appellant Titan Sports, Inc., and its competitor, Turner Broadcasting Systems (TBS), are the most prominent professional wrestling promoters in the United States. TBS's "World Championship Wrestling" (WCW) has challenged Titan's "World Wrestling Federation" (WWF) to engage in "interpromotional events," wherein WCW wrestling personalities would compete with WWF personalities. Titan has refused to permit any of its wrestlers to engage in the activities.

Titan sued TBS in the United States District Court for the District of Connecticut alleging unfair trade practices, copyright infringement and other pendent state law claims, none of which are germane to this appeal. Titan Sports Inc. v. Turner Broadcasting Systems, Inc., 981 F.Supp. 65 (D.Conn.) (the Connecticut action). As part of the discovery process in the Connecticut action, however, Titan issued a subpoena to take the deposition of Mark Madden, a nonparty witness who is employed by WCW, and resided in the Western District of Pennsylvania.

WCW employs Madden to produce tape-recorded commentaries, which are replayed to callers on WCW's 900-number hotline. These commentaries promote upcoming WCW wrestling events and pay-per-view television programs, announce the results of wrestling matches and discuss wrestlers' personal lives and careers. Madden asserts that in the course of preparing statements for the WCW hotline, he receives information from confidential sources. He admits, however, that his announcements are as much entertainment as journalism.

During a deposition, Madden refused to identify the sources of certain of his allegedly false and misleading statements recorded for the WCW's 900-number hotline. Madden, through counsel, invoked a "journalist's privilege" and the protection of the Pennsylvania Journalist's Shield Law, 42 Pa. Cons.Stat Ann. § 5942. ¹ Titan filed a "Motion to Enforce Subpoena and Otherwise Compel Discovery by a Nonmoving Party." After Titan moved to enforce the subpoena, counsel for Madden and the WCW interposed the qualified federal common law privilege which protects journalists from revealing their confidential sources.

The district court denied Titan's motion insofar as it sought to compel Madden to identify the sources from which he got information for his commentaries. The district court concluded that Madden was a "journalist" with standing to assert the privilege because he intended to disseminate information to third parties. The district court also held that Madden's interest in protecting his sources was not outweighed by the need for disclosure. Titan now appeals.

II.

The somewhat unusual procedural posture of this case requires that we discuss briefly our jurisdiction to hear this appeal. We have jurisdiction over "all final decisions of the district courts ..." 28 U.S.C. § 1291. ² A final decision of a district court means, with limited exceptions, an order that ends the litigation on the merits and leaves nothing for the district court to do but execute the judgment. Coopers & Lybrand v. Livesay, 437 U.S. 463, 467, 98 S.Ct. 2454, 2457, 57 L.Ed.2d 351 (1978). Ordinarily, a pretrial discovery order such as this one is not considered final. Enprotech Corp. v. Renda, 983 F.2d 17, 20-21, (3rd Cir.1993), (an order denying a pretrial civil discovery motion to compel production of a document was not final and appealable). The typical remedy for one aggrieved by an order denying a discovery request is to await final judgment before appealing. Id.

The order appealed from in this case is not a typical discovery order. Although it relates to discovery and the deposition of a nonparty witness, it was not entered by the district court where the case was filed and is currently pending. The district court for the District of Connecticut will ultimately rule on the merits, and an appeal from its final judgment will be heard by the Court of Appeals for the Second Circuit. Other courts have recognized an "exception to the nonfinality of discovery orders where a district court, other than the district court before which the main action is pending, issues an order denying discovery against a nonparty." Hooker v. Continental Life Insurance Co., 965 F.2d 903, 905 (10th Cir.1992); citing Truswal Sys. Corp. v. Hydro-Air Eng'n, Inc., 813 F.2d 1207, 1209 (Fed.Cir. 1987). ³ The premise for this exception is that these orders involve nonparties and are issued by district courts other than the one in which the principal action is pending, thereby eliminating any avenue for effective appellate review.

We agree with this premise but believe, rather than as an exception, finality for purposes of our jurisdiction in this circumstance is determined more directly by asking whether the aggrieved entity has any means, other than an immediate appeal before us, to obtain appellate review of the district court's decision. For Titan, the answer is no, because the Court of Appeals for the Second Circuit does not have jurisdiction to review this order of the Western District of Pennsylvania. Were we to reject jurisdiction, appellate review of this order would be impossible. Consequently, because we are the only forum that may review the decision, we deem it final and conclude that we have jurisdiction under 28 U.S.C. § 1291 to review it.

III.

The decision we review is the district court's order granting a journalist's privilege to Madden. The issue is whether he has status as a journalist to invoke the protections of the privilege. We conclude that he does not. Because this is a purely legal question, our review is plenary. Bradgate Assoc. v. Fellows, Read & Assoc., 999 F.2d 745, 749 (3d Cir.1993). We note at the outset that testimonial exclusionary rules and privileges are not favored. Indeed, the Supreme Court has not shown enthusiasm for the creation of constitutional privileges because these privileges "contravene a fundamental principle of our jurisprudence that the public has a right to every man's evidence." United States v. Bryan, 339 U.S. 323, 331, 70 S.Ct. 724, 730, 94 L.Ed. 884 (1950). Such privileges should not be "lightly created or expansively construed, for they are in derogation of the search for truth." United States v. Nixon, 418 U.S. 683, 710, 94 S.Ct. 3090, 3108, 41 L.Ed.2d 1039 (1974). Pretrial discovery is therefore, "accorded a broad and liberal treatment." Hickman v. Taylor, 329 U.S. 495, 507, 67 S.Ct. 385, 392, 91 L.Ed. 451 (1947). If no claim of privilege applies, a non-party can be compelled to produce any matter "relevant to the subject matter involved in the pending action" or "reasonably calculated to lead to the discovery of admissible evidence." Fed.R.Civ.P. 26(b)(1).

Nonetheless, we have recognized that when a journalist, in the course of gathering the news, acquires facts that become a target of discovery, a qualified privilege against compelled disclosure appertains. Riley v. City of Chester, 612 F.2d 708 (3d Cir.1979) (journalist's privilege for civil cases); United States v. Cuthbertson, 630 F.2d 139 (3d Cir.1980) (journalist's privilege for criminal cases). Premised upon the First Amendment, the privilege recognizes society's interest in protecting the integrity of the newsgathering process, and in ensuring the free flow of information to the public. It is an interest of "sufficient legal importance to justify some incidental sacrifice of sources of facts needed in the administration of justice." Herbert v. Lando, 441 U.S. 153, 183, 99 S.Ct. 1635, 1652, 60 L.Ed.2d 115 (Brennan, J., dissenting).

Although we have determined that a journalist's privilege exists, we have never decided who qualifies as a "journalist" for purposes of asserting it. The Supreme Court has warned of the difficulties in such an undertaking:

[S]ooner or later, it [will] become necessary to define those categories of newsmen who qualify for the privilege--a questionable procedure in light of the traditional doctrine that liberty of the press is the right of the lonely pamphleteer just as much as the large, metropolitan publisher.

Branzburg v. Hayes, 408 U.S. 665, 703-04, 92 S.Ct. 2646, 2668, 33 L.Ed.2d 626 (1972).

We have found few cases that discuss who, beyond those employed by the traditional media, has status to raise the journalist's privilege. Courts have previously permitted documentary film-makers to invoke the protections of the journalist's privilege. See Silkwood v. Kerr-McGee, 563 F.2d 433, 436 (10th Cir.1977). Also, authors of technical publications and professional investigative books have been permitted to claim the privilege. See Apicella v. McNeil Lab., Inc., 66 F.R.D. 78 (E.D.N.Y. 1975) (technical publications are within the scope of journalist's privilege because the traditional doctrine of freedom of the press is the right of all types of reporters); Shoen v. Shoen, 5 F.3d 1289, 1293 (9th Cir.1993) (professional investigative book author has status to claim journalist's privilege). No other court, however, has considered whether the privilege may be invoked by...