O'Neill v. Oakgrove Const., Inc.

Citation528 N.Y.S.2d 1,71 N.Y.2d 521,523 N.E.2d 277
Parties, 523 N.E.2d 277, 56 USLW 2567, 15 Media L. Rep. 1219 James M. O'NEILL, Respondent, v. OAKGROVE CONSTRUCTION, INC., et al., Defendants. Gannett Rochester Newspapers, Appellant.
Decision Date29 March 1988
CourtNew York Court of Appeals Court of Appeals
OPINION OF THE COURT

HANCOCK, Judge.

The question presented is whether nonconfidential photographs taken by journalists in the course of newsgathering activities and kept as resource material are protected from compelled disclosure by a qualified reporter's privilege under the State or Federal Constitution. 1 The Appellate Division held that protection from disclosure was limited to situations involving "a confidential relationship with a source" and to those involving "private sources where discovery would substantially intrude upon the privacy of press functions" (122 A.D.2d 570, 571, 505 N.Y.S.2d 477). We disagree. Article I, § 8 of the New York State Constitution and, we believe, the First Amendment of the Federal Constitution as well, provide a reporter's privilege which extends to confidential and nonconfidential materials and which, albeit qualified, is triggered where the material sought for disclosure--the photographs here--was prepared or collected in the course of newsgathering.

Our decision is based on an adequate and independent ground under our State Constitution. Nevertheless, we are noting our agreement with the Federal courts that have reached the same result under the Federal Constitution in order that we might express our own view of the federal guarantee of a free press which, of course, we are also bound to uphold. This practice is in accord with our proper role in helping to expound the Federal, as well as our State, Constitution and, as some of the commentators have explained, it contributes to the development of a body of case law of potential use to federal and other state courts (see, e.g., Utter, Swimming in the Jaws of the Crocodile: State Court Comment on Federal Constitutional Issues when Disposing of Cases on State Constitutional Grounds, 63 Tex.L.Rev. 1025, 1029-1030, 1050; Pollock, Adequate and Independent State Grounds as a Means of Balancing the Relationship Between State and Federal Courts, 63 Tex.L.Rev. 977, 985-986; Developments in the Law--The Interpretation of State Constitutional Rights, 95 Harv.L.Rev. 1324, 1357). We have followed the practice in other cases and see no reason for hesitancy in doing so here ( see, e.g., Matter of Patchogue-Medford Congress of Teachers v. Board of Educ., 70 N.Y.2d 57, 64-65, 517 N.Y.S.2d 456, 510 N.E.2d 325; People v. Stith, 69 N.Y.2d 313, 316, n, 514 N.Y.S.2d 201, 506 N.E.2d 911; People v. Donovan, 13 N.Y.2d 148, 151-152, 243 N.Y.S.2d 841, 193 N.E.2d 628).

I

Plaintiff was injured when his automobile hit a concrete median after sliding off a roadway which was under construction. Seventeen photographs of the accident scene were taken by a police photographer. Additionally, a photojournalist employed by appellant, Gannett Rochester Newspapers (Gannett), took 58 photographs, one of which was published in the Democrat and Chronicle the following day.

Plaintiff brought an action for personal injury against the contractors and subcontractors responsible for the construction project, alleging hazardous conditions at the construction site and various safety violations. When his informal request to examine Gannett's photographs was refused, plaintiff moved pursuant to CPLR 3120(b) for an order directing Gannett, as a nonparty, to produce those photographs for inspection and copying. Gannett cross-moved for a protective order arguing that its unpublished photographs are privileged under the free press and speech guarantees of the Federal and State Constitutions.

Special Term granted the motion, denied the cross motion, and ordered that Gannett produce the photographs. On appeal, the Appellate Division agreed with the denial of Gannett's cross motion on the ground that "there is no compelling reason for extending the scope of the [First Amendment reporter's] privilege to nonconfidential materials" and because the "facts of this case do not warrant affording [Gannett] greater protection under the State Constitution" (122 A.D.2d, at 571, 505 N.Y.S.2d 477). The court modified the order of Special Term, however, by reversing the grant of plaintiff's discovery motion and remitting the matter for an in camera examination of the photographs and a routine discovery motion determination of the "relevance of the information and an actual need for its production." (See, CPLR 3101 [a]: "[t]here shall be full disclosure of all evidence material and necessary".) On remand, Supreme Court determined that 19 of the Gannett photographs "depict relevant evidence not shown in the police photographs" and ordered their production.

Gannett, raising a substantial constitutional issue, brought this appeal as of right (CPLR 5601[b] ). For the following reasons, we reverse the order of the Appellate Division thus presented for our review.

II

In the ordinary case, the scope of discovery available against a nonparty is governed solely by the "sweeping exhortation" of CPLR 3101 which requires "full disclosure of all evidence material and necessary in the prosecution or defense of an action," wherever "sufficient independent evidence" is not obtainable ( Cirale v. 80 Pine St. Corp., 35 N.Y.2d 113, 116-117, 359 N.Y.S.2d 1, 316 N.E.2d 301). The prerequisites of materiality and necessity, though placing some limit on entitlement to disclosure, extend to any information or items "bearing on the controversy" which will be an aid to trial preparation, sharpening of the issues, or reducing delay. The test in such cases is "usefulness and reason" ( Allen v. Crowell-Collier Publ. Co., 21 N.Y.2d 403, 406, 288 N.Y.S.2d 449, 235 N.E.2d 430). Where, however, the nonparty against whom discovery is sought is engaged in newsgathering or reporting activities, and the materials requested are photographs taken in the course of such endeavors, additional considerations are involved.

The ability of the press freely to collect and edit news, unhampered by repeated demands for its resource materials, requires more protection than that afforded by the disclosure statute (CPLR 3101). The autonomy of the press would be jeopardized if resort to its resource materials, by litigants seeking to utilize the newsgathering efforts of journalists for their private purposes, were routinely permitted ( see, Miller v. Mecklenburg County, 602 F.Supp. 675, 679; Maurice v. National Labor Relations Bd., 7 Med.L.Rptr. 2221, 2223 [S.D.N.Y.], vacated on other grounds 691 F.2d 182 (4th Cir.); Wilkins v. Kalla, 118 Misc.2d 34, 35, 459 N.Y.S.2d 985). Moreover, because journalists typically gather information about accidents, crimes, and other matters of special interest that often give rise to litigation, attempts to obtain evidence by subjecting the press to discovery as a nonparty would be widespread if not restricted. The practical burdens on time and resources, as well as the consequent diversion of journalistic effort and disruption of newsgathering activity, would be particularly inimical to the vigor of a free press.

For these reasons, the courts in New York and elsewhere, Federal and State, have recognized a reporter's qualified privilege under the First Amendment guarantee of free press and speech ( see, United States v. Burke, 700 F.2d 70, 77 [2d Cir.], cert. denied 464 U.S. 816, 104 S.Ct. 72, 78 L.Ed.2d 85; Zerilli v. Smith, 656 F.2d 705, 713-715 [D.C.Cir.]; United States Criden, 633 F.2d 346, 358-359 [3d Cir.], cert. denied sub nom. Schaffer v. United States, 449 U.S. 1113, 101 S.Ct. 924, 66 L.Ed.2d 842; Silkwood v. Kerr-McGee Corp., 563 F.2d 433, 438 [10th Cir.]; People v. Korkala, 99 A.D.2d 161, 167, 472 N.Y.S.2d 310; People v. Bova, 118 Misc.2d 14, 460 N.Y.S.2d 230). As formulated by the decisions of these courts, the privilege bars coerced disclosure of resource materials, such as photographs, which are obtained or otherwise generated in the course of newsgathering or newspreparing activities, unless the moving litigant satisfies a tripartite test which is more demanding than the requirements of CPLR 3101(a). Under the tripartite test, discovery may be ordered only if the litigant demonstrates, clearly and specifically, that the items sought are (1) highly material, (2) critical to the litigant's claim, and (3) not otherwise available. Accordingly, if the material sought is pertinent merely to an ancillary issue in the litigation, not essential to the maintenance of the litigant's claim, or obtainable through an alternative source, disclosure may not be compelled ( see, e.g., In re Petroleum Prods. Antitrust Litig., 680 F.2d 5, 9 [2d Cir.], cert denied sub nom. Arizona v. McGraw-Hill, Inc., 459 U.S. 909, 103 S.Ct. 215, 74 L.Ed.2d 171; Riley v. City of Chester, 612 F.2d 708, 717 [3d Cir.]; Silkwood v. Kerr-McGee Corp., supra, at 438 [10th Cir.]; Baker v. F & F Inv., 470 F.2d 778, 784 [2d Cir.], cert denied 411 U.S. 966, 93 S.Ct. 2147, 36 L.Ed.2d 686; Montezuma Realty Corp. v. Occidental Petroleum Corp., 494 F.Supp. 780 [S.D.N.Y.] ).

The considerations underlying this qualified privilege are not peculiar to materials obtained in confidence. (Contrast the specific concerns about confidential sources addressed by the absolute protection of the Shield Law [Civil Rights Law § 79-h; see Matter of Knight-Ridder Broadcasting v. Greenberg, 70 N.Y.2d 151, 155-157, 518 N.Y.S.2d 595, 511 N.E.2d 1116].) As many of the courts have already noted, confidentiality or the lack...

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