Mitchell v. Superior Court, S.F. 24685

Decision Date19 November 1984
Docket NumberS.F. 24685
Citation37 Cal.3d 268,690 P.2d 625,208 Cal.Rptr. 152
Parties, 690 P.2d 625, 53 USLW 2288, 11 Media L. Rep. 1076 David MITCHELL et al., Petitioners, v. The SUPERIOR COURT of Marin County, Respondent; SYNANON CHURCH, et al., Real Parties in Interest.
CourtCalifornia Supreme Court

Paul Alexander, Robert E. Borton, Pamela A. Mull, Andrea G. Asaro, Regina A. Stagg and Heller, Ehrman, White & McAuliffe, San Francisco, for petitioners.

No appearance for respondent.

Bourdette, Benjamin & Weill, Philip C. Bourdette and David R. Benjamin, Badger, for real parties in interest.

BROUSSARD, Acting Chief Justice.

Petitioners David and Cathy Mitchell seek a writ of prohibition to prevent the Marin County Superior Court from enforcing a discovery order requiring petitioners to produce documents revealing confidential sources of information. Their petition brings before this court for the first time the question whether in a civil action a newsperson has a privilege to refuse to reveal confidential sources or information obtained from those sources.

This petition stems from a libel action by The Synanon Church (Synanon) and Charles Dederich against the Reader's Digest, the Mitchells, David MacDonald, and Richard Ofshe.

A petition for writ of mandate to review the trial court's denial of a motion for summary judgment by MacDonald and the Reader's Digest is also before this court. (Reader's Digest Assn. v. Superior Court, 37 Cal.3d 244, 208 Cal.Rptr. 137, 690 P.2d 610 (1984).) The opinion in that case sets out the background of the underlying lawsuit, describes the Reader's Digest article which led to that suit, and analyzes the alleged defamatory statements in that article.

In brief summary, the Reader's Digest article, by staff writer David MacDonald, describes how the Mitchells won the Pulitzer Prize for a series of reports and editorials critical of Synanon which appeared in their weekly newspaper, the Point Reyes Light. The article contains the following statements: "Synanon was founded in 1958 by Charles Dederich, a reformed alcoholic, to rehabilitate drug addicts. Though his spectacular claims of success were never proved, Dederich and Synanon attracted publicity and enough cash donations to start a string of addiction centers .... Since 1968, minimal drug rehabilitation work had been attempted; funds, however, were still solicited on that basis." Plaintiffs charge that such language implies that plaintiffs were not successful at drug rehabilitation and that their claims of success were fraudulently made to enrich themselves.

Although Synanon and its members have filed other lawsuits against the Mitchells, charging defamation in the Point Reyes Light and in the Mitchells' later book, The Light on Synanon, the present case concerns only the Reader's Digest account. Synanon claims that the Mitchells, Professor Richard Ofshe, David MacDonald, and the Reader's Digest "conspired and acted in concert with each other to write, edit and publish to and among each other and to the readers of the article the false, malicious and defamatory words and language contained therein."

The Reader's Digest revealed the sources for its article: the Mitchell's newspaper accounts, The Light on Synanon, Professor Ofshe's research papers, conversations with Ofshe and the Mitchells, and a few other, less significant, sources. Plaintiffs, however, want to discover the sources' sources. They sent the Mitchells two requests to produce documents, the first listing 27 broad categories of documents and the second specifying over 10 different documents. We do not set out the requests in full, as many are overlapping or duplicative. The breadth of the discovery sought is indicated by request number 8 from the first set of requests, which asks for "Each and every document, other than as described [and requested] above, referring to or relating to Synanon and/or Charles E. Dederich in the possession, custody or control of defendants prior to the publication of the Reader's Digest Article." Synanon's counsel made it clear that they were not limiting their request to documents shown to MacDonald or the Reader's Digest; they wanted to review all documents available to the Mitchells in order to prove that the Mitchells selectively relied on some documentary evidence and ignored other evidence more favorable to Synanon.

The Mitchells objected to request number 8 and many other requests on the ground "that it is vague and ambiguous and, to the extent it is intelligible, is overbroad, unduly burdensome, and calls for information protected from disclosure by, inter alia, The First Amendment to the Constitution of the United States, The First Amendment to the Constitution of the State of California and the common law." 1 The superior court, however, ordered the Mitchells to identify every document responsive to the first and second requests, and to produce all documents described under specific items, including request number 8, of the first request to produce.

The Mitchells, uncertain whether the court had ruled on their claim of privilege, withheld documents tending to reveal confidential sources and asked the court to clarify its order. Ruling from the bench in response to the motion to clarify, the judge stated that he was ruling that the asserted privilege does "not exist in California." The Mitchells now seek a writ of prohibition to bar enforcement of the court's order requiring them to produce the withheld documents.

California by statute (Evid.Code, § 1070) and by constitutional amendment (art. I, § 2, subd. (b)) provides that "[a] publisher, editor, reporter, or other person connected with or employed upon a newspaper ... shall not ["cannot" in Evid.Code] be adjudged in contempt ... for refusing to disclose the source of any information procured while so connected or employed for publication in a newspaper ... or for refusing to disclose any unpublished information." 2 Since contempt is generally the only effective remedy against a nonparty witness, the California enactments grant such witnesses virtually absolute protection against compelled disclosure. A party to civil litigation who disobeys an order to disclose evidence, however, may be subject to a variety of other sanctions, including the entry of judgment against him. (See Code Civ.Proc., § 2034.) Neither Evidence Code section 1070 nor article I, section 2, subdivision (b), protects a party against such sanctions. (See Playboy Enterprises, Inc. v. Superior Court (1984) 154 Cal.App.3d 14, 26, 201 Cal.Rptr. 207.) The Mitchells, as defendant in Synanon's libel suit, therefore seek to assert a nonstatutory privilege based on the broad protections for freedom of the press enshrined in the United States Constitution and the correlative provision (art. I, § 2, subd. (a)) of the California Constitution. 3

In Zerilli v. Smith (D.C.Cir.1981) 656 F.2d 705, Judge J. Skelly Wright explained the importance of a reporter's privilege to the fundamental values protected by the First Amendment. "The First Amendment," he said, "guarantees a free press primarily because of the important role it can play as 'a vital source of public information.' [Citing Grosjean v. American Press Co. (1936) 297 U.S. 233, 250, 56 S.Ct. 444, 449, 80 L.Ed. 660.] ... Without an unfettered press, citizens would be far less able to make informed political, social, and economic choices. But the press' function as a vital source of information is weakened whenever the ability of journalists to gather news is impaired. Compelling a reporter to disclose the identity of a source may significantly interfere with this news gathering ability; journalists frequently depend on informants to gather news, and confidentiality is often essential to establishing a relationship with an informant." (Pp. 710-711, fns. omitted.)

In similar language Judge Irving Kaufman in Baker v. F. & F. Investment (2d Cir.1972) 470 F.2d 778, certiorari denied, 411 U.S. 966, 93 S.Ct. 2147, 36 L.Ed.2d 686, declared that: "Compelled disclosure of confidential sources unquestionably threatens a journalist's ability to secure information that is made available to him only on a confidential basis .... The deterrent effect such disclosure is likely to have upon future 'undercover' investigative reporting, the dividends of which are revealed in articles such as [this] threatens freedom of the press and the public's need to be informed." (P. 782.) 4

Judicial decisions, however, recognize that other significant values favor disclosure. Herbert v. Lando (1980) 441 U.S. 153, 99 S.Ct. 1635, 60 L.Ed.2d 115, reminds us "that the individual's interest in his reputation is also a basic concern" (441 U.S. p. 169, 99 S.Ct. p. 1645), and that the assertion of an evidentiary privilege would impede his ability to prove actual malice (p. 170). Justice Stewart in Garland v. Torre (2d Cir.1958) 259 F.2d 545, certiorari denied, 358 U.S. 910, 79 S.Ct. 237, 3 L.Ed.2d 231, acknowledged the argument for privilege based on the First Amendment, but added that "[b]asic too are courts of justice, armed with the power to discover the truth. The concept that it is the duty of a witness to testify in a court of law has roots fully as deep in our history as does the guarantee of a free press." (P. 548.) The Iowa Supreme Court in Winegard v. Oxberger (1977) 258 N.W.2d 847, 850, referred to "the longstanding principle that the public has a right to every person's evidence." 5

We cannot ignore or subordinate the First Amendment values furthered by the protection of confidential sources and information; at the same time, we must recognize the parallel importance of the policy favoring full disclosure of relevant evidence. When called upon to weigh the fundamental values arguing both for and against compelled disclosure, the overwhelming majority of courts have concluded that the question of a reporter's privilege in civil cases must be decided on a case-by-case...

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