Shoen v. Shoen

• Decision Date: 15 February 1995
• Docket Number: No. 94-16533,94-16533
• Citation: 48 F.3d 412
• Parties: , 23 Media L. Rep. 1522 Mark V. SHOEN; Edward J. Shoen, Plaintiffs-Appellees, v. Leonard Samuel SHOEN; Christina G. Shoen, et al., Defendants, Ronald J. Watkins, Witness-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 412

48 F.3d 412

31 Fed.R.Serv.3d 407, 23 Media L. Rep. 1522

Mark V. SHOEN; Edward J. Shoen, Plaintiffs-Appellees, v. Leonard Samuel SHOEN; Christina G. Shoen, et al., Defendants Ronald J. Watkins, Witness-Appellant.

No. 94-16533.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Oct. 17, 1994.

Decided Feb. 15, 1995.

Guy Bradley Price, Phoenix, AZ, for appellant Watkins.

Richard M. Amoroso, Piccoli & Myers, Phoenix, AZ, for appellee Mark Shoen.

Russell Piccoli, Piccoli & Myers, Phoenix, AZ, for appellee Edward Shoen.

Daniel C. Barr and Shirley A. Kaufman, Brown & Bain, Phoenix, AZ, for amicus curiae First Amendment Coalition of Arizona.

Jane E. Kirtley, Washington, DC, for amicus curiae The Reporters Committee for Freedom of the Press.

Thomas H. Howlett, Ross, Dixon & Masback, Washington, DC, for amicus curiae Newsletter Publishers Ass'n.

David J. Bodney and Peter B. Swann, Steptoe & Johnson, Phoenix, AZ, for amicus curiae Arizona Newspapers Ass'n, Radio-Television News Directors Ass'n, and Ass'n of American Publishers.

Appeal from the United States District Court for the District of Arizona.

Before: BROWNING, FARRIS and LEAVY, Circuit Judges.

Opinion by Judge FARRIS; Dissent by Judge LEAVY.

FARRIS, Circuit Judge.

Ronald J. Watkins appeals from the district court judgment holding him in contempt for refusing to produce audio tapes and other materials pursuant to a discovery request in the underlying defamation lawsuit. Watkins contends that the journalist's privilege against compelled disclosure of research material shields him from plaintiffs' discovery requests. We have jurisdiction under 28 U.S.C. Secs. 1291 and 1826(a). We reverse.

BACKGROUND

The Shoen family owns and operates the highly successful U-Haul Corporation. Watkins, an author of investigative books, recently published Birthright, which chronicles the bitter feud within the Shoen family for control of U-Haul. It also details the events surrounding the death of Eva Berg Shoen, who was brutally murdered at the family's cabin in Telluride, Colorado.

A primary source for the book was Leonard Shoen, the family patriarch and founder of U-Haul. In exchange for several in-depth interviews, Watkins agreed that Leonard Shoen would receive a percentage of book royalties and proceeds from any sales of movie rights.

Prior to his interviews with Watkins, Leonard Shoen made at least 29 public statements, most to the press, implicating his sons Mark and Edward in the death of Eva Berg Shoen, the wife of their brother Sam. In this action, Mark and Edward Shoen seek to hold their father liable for the alleged damage to their reputations occasioned by these statements.

Plaintiffs do not allege that their father made any libelous statements to Watkins. Nonetheless, shortly after commencing this action, they served Watkins with a subpoena duces tecum ordering him to appear for deposition and to produce all documents and recordings concerning the Shoen family feud over U-Haul and the death of Eva Berg Shoen. Watkins refused. After a flurry of motions, the district court ordered Watkins to produce all notes and tapes of his conversations with Leonard Shoen on matters related to the Shoen family. When Watkins again refused, the district court held him in contempt.

In Shoen v. Shoen, 5 F.3d 1289 (9th Cir.1993) ("Shoen I "), we reversed the district court's contempt order. We held that plaintiffs had failed to demonstrate a sufficiently compelling need for the information to overcome Watkins' assertion of the journalist's privilege. We concluded that, at a minimum, plaintiffs had to depose Leonard Shoen before seeking Watkins' tapes and notes. Id. at 1296-98.

Between oral argument and announcement of our decision in Shoen I, plaintiffs deposed Leonard Shoen and conducted modest additional discovery. Evidently under the impression that they had satisfied their obligation to exhaust all reasonable alternative sources, three days after the Shoen I decision plaintiffs again demanded Watkins' tapes and notes of his conversations with Leonard Shoen.

Plaintiffs moved to compel Watkins to disclose the requested materials, but the district court deferred consideration of the motion pending disposition of a summary judgment motion on the question of public figure status. On March 10, 1994, the court held that plaintiffs are public figures for purposes of this litigation. Agreeing that plaintiffs had exhausted all reasonable alternative sources, the district court then granted the motion to compel Watkins to comply with plaintiffs' discovery requests. The court directed Watkins to appear for a scheduled deposition and to produce the tapes and notes of his conversations with Leonard Shoen about the Shoen family disputes and Eva Shoen's murder. Watkins again refused.

On August 19, 1994, following oral argument on whether Watkins should be held in contempt, the district court ordered that unless he immediately complied with its previous order, Watkins would be incarcerated until he agreed to comply or until the underlying litigation terminated. On September 1, 1994, the district court found Watkins to be a recalcitrant witness under 28 U.S.C. Sec. 1826(a) and ordered his immediate incarceration. We stayed the incarceration order pending disposition of this appeal.

DISCUSSION

Whether plaintiffs have made a sufficient showing to overcome Watkins' assertion of the journalist's privilege is a mixed question of law and fact. Shoen I, 5 F.3d at 1292. We therefore review de novo. Id.

I. Shoen I

As we noted in Shoen I, all but one of the federal circuits to address the issue have interpreted Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972), as establishing a qualified privilege for journalists against compelled disclosure of information gathered in the course of their work. Shoen I, 5 F.3d at 1292 n. 5 (citing cases). "Rooted in the First Amendment, the privilege is a recognition that society's interest in protecting the integrity of the newsgathering process, and in ensuring the free flow of information to the public, is an interest 'of sufficient social importance to justify some incidental sacrifice of sources of facts needed in the administration of justice.' " Id. at 1292 (quoting Herbert v. Lando, 441 U.S. 153, 183, 99 S.Ct. 1635, 1652, 60 L.Ed.2d 115 (1979) (Brennan, J., dissenting) (internal quotation omitted)).

In Shoen I, we confronted two issues of first impression in this circuit: (1) whether the journalist's privilege extends to investigative book authors such as Watkins; and (2) whether the privilege protects nonconfidential sources and materials. Shoen I, 5 F.3d at 1293. Because we decided both issues in the affirmative, we proceeded to determine whether plaintiffs had demonstrated a "sufficiently compelling need" for the requested Our inquiry was short lived. As of the time of the appeal, plaintiffs had not deposed Leonard Shoen, the " 'most patently available other source.' " Id. at 1297 (quoting Riley v. City of Chester, 612 F.2d 708, 717 (3d Cir.1979)). We concluded that plaintiffs had therefore failed to exhaust all reasonable alternative means for obtaining the information sought from Watkins. Id. at 1296-98.

                materials to overcome Watkins' assertion of the journalist's privilege.  Id. at 1296.   We noted that, "[a]t a minimum, this requires a showing that the information sought is not obtainable from another source."  Id
                

II. The Disagreement Over Shoen I

The parties vigorously dispute the showing required under Shoen I to overcome the journalist's privilege. The district court read Shoen I as setting forth three factors to be considered when determining whether the journalist's privilege should yield to a civil litigant's discovery requests: (1) whether the requesting party has exhausted all reasonable alternative sources; (2) whether the information sought is relevant, material, and noncumulative; and (3) whether the information sought is crucial to the maintenance of the plaintiffs' legal claims.

Watkins contends that the Shoen I court adopted a four-part test that includes a showing that the requested information goes to the "heart of the seeker's case." According to Watkins, the approving citation to Los Angeles Memorial Coliseum Comm'n v. National Football League, 89 F.R.D. 489, 494 (C.D.Cal.1981), reflects our adoption of such a test.

Watkins' argument is unpersuasive. The citation relied upon by Watkins appears in a footnote. The footnote reads:

Because we hold that plaintiffs have not satisfied the exhaustion requirement, we express no opinion on whether plaintiffs have made a sufficient showing on the other questions considered in the balance--i.e., whether the information sought is relevant, material, and non-cumulative, and whether it is crucial to the maintenance of plaintiffs' legal claims. See generally In re Petroleum Prods. [Antitrust Litigation], supra [680 F.2d 5] at 7 [ (2d Cir.1982) ]; Los Angeles Memorial Coliseum Comm'n v. National Football League, 89 F.R.D. 489, 494 (C.D.Cal.1981) (and cases cited therein).

Shoen I, 5 F.3d at 1296 n. 14. It is clear from this language that the Shoen I court did not adopt a test for determining whether the requesting party has a compelling need sufficient to override the privilege. Surely, had the court chosen to announce such a test, it would not have done so in a footnote.

III. The Need to Adopt a Test

In reaffirming a qualified journalist's privilege, we observed in Shoen I that "the process of deciding whether the privilege is overcome requires that 'the claimed First Amendment privilege and the opposing need for disclosure be judicially weighed in light of the surrounding facts, and a balance struck to determine where lies the paramount interest.' " Shoen I, 5 F.3d at 1292-93 (quoting Farr v. Pitchess, 522 F.2d 464, 468 (9th Cir.1975)); see also Branzburg, 408 U.S. at 710, 92 S.Ct. at 2671 (Powell, J., concurring) (balance must...