Schreiber v. Multimedia of Ohio, Inc., C-860454

• Decision Date: 21 October 1987
• Docket Number: No. C-860454,C-860454
• Citation: 535 N.E.2d 357,41 Ohio App.3d 257
• Parties: SCHREIBER et al., Appellees, v. MULTIMEDIA OF OHIO, INC. et al., Appellants. *
• Court: Ohio Court of Appeals

Page 257

41 Ohio App.3d 257

535 N.E.2d 357

SCHREIBER et al., Appellees, v. MULTIMEDIA OF OHIO, INC. et al., Appellants. ^*

No. C-860454.

Court of Appeals of Ohio, First District, Hamilton County.

Oct. 21, 1987.

Syllabus by the Court

The determination of whether the First Amendment to the United States Constitution or Section 11, Article I of the Ohio Constitution confers upon news media defendants in a defamation action a "qualified privilege" protecting them against compelled disclosure of their editorial processes by imposing upon a discovery movant the burden of demonstrating an enhanced degree of relevance and necessity entails an ad hoc balancing of the interests at stake. This determination lies within the sound discretion of the trial court. In the absence of a transcript of the proceedings at which the trial court determined that the materials sought to be discovered were relevant, not privileged and thus discoverable, an appellate court is precluded from holding that the trial court abused its discretion in compelling disclosure.

Rendigs, Fry, Kiely & Dennis, David Winchester Peck and Kerry Beringhaus, Cincinnati, for appellees.

Frost & Jacobs and Susan Grogan Faller, Cincinnati, for appellants.

PER CURIAM.

This cause came on to be heard upon an appeal from the Court of Common Pleas of Hamilton County.

Defendants-appellants Multimedia of Ohio, Inc., Dave Robinson and Richard Venn (collectively, "defendants") have taken the instant appeal from an order of the court below compelling their disclosure of "outtake" videotape, ¹ reporter notes and scripts compiled in connection with an allegedly defamatory news broadcast. On appeal, defendants contend that compelled disclosure of the outtakes, notes and scripts, which they assert constitute aspects of their editorial processes, infringes upon the First Amendment guarantees of free speech and freedom of the press.

On the evening of March 1, 1985, defendant Dave Robinson ("Robinson"), a news reporter employed by defendant Multimedia of Ohio, Inc. ("Multimedia"), and defendant Richard Venn ("Venn"), a Multimedia cameraman, accompanied a police officer for the city of Cincinnati on routine patrol to gather information and film footage for a proposed series on local enforcement of state drunk driving laws. While on patrol in the downtown area of Cincinnati, the police officer stopped plaintiff John T. Schreiber ("Schreiber"). After administering a series of psychomotor tests, the officer placed Schreiber under arrest and transported him to a local station where Schreiber voluntarily submitted to an intoxilyzer test. Robinson and Venn recorded the events preceding Schreiber's arrest, accompanied Schreiber and the officer to the station, allegedly learned there that Schreiber would not be charged with any offense, and returned with Schreiber and the officer to Schreiber's vehicle where Schreiber was released.

On March 6, 7 and 8, Multimedia broadcast a three-part series on drunk driving which prominently featured the apprehension, arrest and processing of Schreiber. His alleged depiction in the series as a drunk driver prompted Schreiber and his wife (collectively, "plaintiffs") to institute an action against defendants seeking compensatory and punitive damages for defamation, interference with Schreiber's right to privacy, emotional distress and loss of consortium.

Along with their complaint, plaintiffs filed interrogatories, a request for admissions, and a request for the production of documents and things. In August 1985, when defendants failed to respond to these discovery requests in a manner satisfactory to plaintiffs, plaintiffs filed a motion to compel, seeking compulsory disclosure of, inter alia: (1) videotape of persons recorded other than Schreiber; (2) notes, memoranda and other documentation relevant to Schreiber's arrest and processing or to defendants' decision to broadcast; (3) videotape of the arrest and processing of Schreiber; and (4) a transcription of the commentary of Robinson used in the broadcast. On November 7, the trial court granted plaintiffs' motion to compel and notified the parties of its disposition by postcard. Defendants responded with a motion for an in camera inspection of the material sought to be discovered and for reconsideration of the court's order to compel. On June 3, 1986, the court conducted an in camera inspection of the subject material and, by entry dated July 7, 1986, ordered defendants to produce the requested material upon its determination that the material was relevant and not privileged and thus discoverable under Civ.R. 26.

From that order, defendants have taken the instant appeal in which they contend, in a single assignment of error, that the trial court erred in granting plaintiffs' motion to compel when the news media enjoy a qualified privilege against compelled disclosure of their editorial processes and plaintiffs failed to demonstrate the heightened degree of relevance and necessity which would warrant compelled disclosure of the requested material. We find this contention to be feckless.

Civ.R. 26 provides in relevant part:

"(B) Scope of discovery. Unless otherwise ordered by the court in accordance with these rules, the scope of discovery is as follows:

"(1) In general. Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action * * *. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence."

The rule thus makes liberal provision for discovery regarding any matter provided that the matter is not privileged, is relevant to the subject matter of the pending action, and either would be admissible at trial or "appears reasonably calculated to lead to the discovery of admissible evidence."

Defendants, in resisting discovery, have invoked their rights to free speech and freedom of the press as guaranteed under the First Amendment to the United States Constitution and Section 11, Article I of the Ohio Constitution. The United States Supreme Court in Herbert v. Lando (1979), 441 U.S. 153, 99 S.Ct. 1635, 60 L.Ed.2d 115, addressed the issue of whether the First Amendment affords news media defendants in a defamation action a privilege against compelled disclosure of their editorial processes and concluded that it did not. The court in Herbert held that a public-figure plaintiff, who has instituted a defamation action alleging that a member of the press has circulated damaging falsehoods, is not barred by the First Amendment guarantees of free speech and freedom of the press from inquiry into the editorial processes of those responsible for publication when such inquiry could...