Playboy Enterprises, Inc. v. Superior Court

• Decision Date: 02 April 1984
• Citation: 201 Cal.Rptr. 207,154 Cal.App.3d 14
• Court: California Court of Appeals Court of Appeals
• Parties: , 10 Media L. Rep. 1569 PLAYBOY ENTERPRISES, INC., Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent, Richard GREENE and Greene & Reynolds, Real Parties in Interest. B002193.

Page 207

201 Cal.Rptr. 207

154 Cal.App.3d 14, 10 Media L. Rep. 1569

PLAYBOY ENTERPRISES, INC., Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent Richard GREENE and Greene & Reynolds, Real Parties in Interest.

B002193.

Court of Appeal, Second District, Division 4, California.

April 2, 1984.

Hearing Denied May 16, 1984.

Selvin & Weiner and Paul P. Selvin, Los Angeles, for petitioner.

No appearance for respondent.

Lewis, D'Amato, Brisbois & Bisgaard, Robert Gaylord Smith, Charles K. Wake and John D. Robertson, Los Angeles, for real parties in interest.

WOODS, Presiding Justice.

By petition for writ of mandate, Playboy Enterprises, Inc., a nonparty to the underlying civil action, seeks to vacate a trial court order compelling it to produce in discovery all records and editorial materials in its possession concerning an interview of plaintiffs Richard Marin and Thomas Chong from which an article published in Playboy's monthly magazine was derived. Defendants below, Greene & Reynolds, seek the materials for the purpose of verifying the accuracy of certain statements attributed to plaintiff Marin in the published article, which statements Marin now denies he made. Defendants contend that the materials sought might be used at trial to impeach the credibility of plaintiff Marin and to demonstrate that plaintiffs were not defrauded.

Two principle issues are raised by this petition.

I

First, what is the scope of protection afforded by Evidence Code section 1070 and article I, section 2 of the California Constitution concerning undisseminated notes and other tangible records and editorial drafts of a magazine publisher from which a published interview article is derived?

II

Second, in the context of civil litigation, does the interest of a nonparty publisher in asserting protection from compelled disclosure of its undisseminated notes and records overcome the competing interests of civil litigants in obtaining such source materials when needed to possibly assist them in presenting their case against other litigants?

For the reasons discussed below, we conclude that the materials sought in discovery fall within the protective scope of section 1070 of the Evidence Code and article I, section 2 of the California Constitution. We also conclude that civil litigants have no constitutional or other rights sufficient to overcome this protection.

The material facts are simple and not in dispute.

Plaintiffs, a comedy team known as Cheech & Chong, sued their former accountants, financial advisors, and business managers, Greene & Reynolds (defendants), for breach of contract and breach of fiduciary duty. Plaintiffs alleged that defendants persuaded them to enter into an unfavorable contract with a certain production company relative to their first motion picture "Up in Smoke" without disclosing to them that defendants had conflicting interests by reason of defendants' business relationship with and financial interest in the production company.

In February and March of 1983, defendants served subpoenas re depositions and subpoenas duces tecum upon nonparty Playboy Enterprises, Inc. (petitioner) commanding the production of certain specified notes, tapes and records of an interview conducted of plaintiffs by a freelance reporter, from which materials an interview article was written and published in an issue of Playboy Magazine. The attendance of petitioner's custodian of records and of a designated representative pursuant to section 2019, subdivision (a)(6) of the Code of Civil Procedure was also demanded by the subpoenas.

The materials subpoenaed included all documents in the possession of petitioner relating to the interview of plaintiffs by freelance reporter Ken Kelly, all audio and video recordings of the interview which were used in any way as source material for the resulting article, and all documents relating to the researching, writing or editing of the article.

Neither petitioner's custodian of records nor any designated representative appeared at the scheduled deposition, but petitioner's counsel appeared to voice objections to the lack of jurisdiction to compel attendance of Playboy officers who reside outside California ¹ and to raise objections under the First Amendment and article 1, section 2 of the California Constitution to disclosure of the materials and documents sought.

Defendants caused an order to show cause re failure to appear at deposition to be issued. At the May 27, 1983 hearing on that order, respondent refused to compel the discovery sought without prejudice to renewal of the order to show cause in the event defendants could demonstrate unsuccessful diligent efforts to locate and depose Ken Kelly concerning his interview of plaintiffs.

On September 1, 1983, a second order to show cause was issued based upon defendants' unsuccessful attempts to locate Mr. Kelly. After hearing, respondent entered its order of November 9, 1983, directing petitioner to produce to defendants' counsel and to authenticate "(a) Each and every document (as defined below but specifically including all tapes, cassettes and the like) in its possession or under its control which constitute or memorialize any interview of Richard Marin and Thomas Chong by Ken Kelly, which document in any way was used in preparing, writing or researching the article in the September, 1982 edition of Playboy Magazine entitled 'Playboy Interview: Cheech & Chong'; [p] (b) Each and every document which reflects or relates to the editing of the interview for publication in the article, as well as the writing of the article (as used in this order, 'document' is defined to include but not be limited to, any audio or video tapes, cassettes, or rewrites of the article, and any notes or other records of any type reflecting the writing or research of this article); ..."

The present petition was filed November 15, 1983, and this court issued the alternative writ.

I

The Protective Scope of Evidence Code Section 1070 and Article I, Section 2 of the California Constitution.

Since its amendment in 1974, ² section 1070 of the Evidence Code ³ has provided, in pertinent part, as follows:

"(a) A publisher, editor, reporter, or other person connected with or employed upon a newspaper, magazine, or other periodical publication, ... or any person who has been so connected or employed, cannot be adjudged in contempt by a judicial ... body having the power to issue subpoenas, for refusing to disclose, in any proceeding ... the source of any information procured while so connected or employed for publication in a newspaper, magazine or other periodical publication, or for refusing to disclose any unpublished information obtained or prepared in gathering, receiving or processing of information for communication to the public. [p] .... [p] (c) As used in this section, 'unpublished information' includes information not disseminated to the public by the person from whom disclosure is sought, whether or not related information has been disseminated and includes, but is not limited to, all notes, outtakes, photographs, tapes or other data of whatever sort not itself disseminated to the public through a medium of communication whether or not published information based upon or related to such material has been disseminated." (Emphasis added.)

By constitutional amendment in 1980, provisions virtually identical to section 1070 were added to article I, section 2 of the California Constitution, elevating the newsperson's protection to the constitutional level. ⁴ Hereafter, reference to this newsperson's protection will be to article I, section 2.

The fundamental rule of statutory construction is that a court should ascertain the intent of the Legislature so as to effectuate the purpose of the statute as a whole. (Tripp v. Swoap (1976) 17 Cal.3d 671, 679, 131 Cal.Rptr. 789, 552 P.2d 749; Select Base Materials v. Board of Equal. (1959) 51 Cal.2d 640, 645, 335 P.2d 672.) A corollary rule is that every word and phrase employed is presumed to be intended to have meaning and perform a useful function (Clements v. T.R. Bechtel Co. (1954) 43 Cal.2d 227, 233, 273 P.2d 5); a construction rendering some words in the statute useless or redundant is to be avoided.

Where the same word or phrase might have been used in the same connection in different portions of a statute but a different word or phrase having different meaning is used instead, the construction employing that different meaning is to be favored. (McCarthy v. Board of Fire Commrs. (1918) 37 Cal.App. 495, 497, 174 P. 402; People v. Ector (1965) 231 Cal.App.2d 619, 625, 42 Cal.Rptr. 388; Charles S. v. Board of Education (1971) 20 Cal.App.3d 83, 95, 97 Cal.Rptr. 422.)

Finally, where general words follow a specific enumeration of particular classes of persons or things, the general words will be presumed as applicable to persons or things of the same general nature or class as those enumerated. (Sears, Roebuck & Co. v. San Diego County Dist. Council of Carpenters (1979) 25 Cal.3d 317, 331, fn. 10, 158 Cal.Rptr. 370, 599 P.2d 676; Scally v. Pacific Gas & Electric Co. (1972) 23 Cal.App.3d 806, 819, 100 Cal.Rptr. 501.)

With these rules in mind, it is apparent that but one construction treats subdivision (c) as a coherent whole with every word and phrase having a meaningful and integral function. It is that the subdivision (c) definition of "unpublished information" (a term of art therein defined) is structured in two parts corresponding to the two classifications of protection intended.

The first classification is that "As used in this section, 'unpublished information' includes information not disseminated to the public by the person from whom disclosure is sought, whether or not related information has been disseminated ...." (Emphasis added.) This has broad reference to factual information that is within the newsperson's knowledge, whether contained in source material or in memory....