Shoen v. Shoen

Decision Date27 September 1993
Docket NumberNo. 92-16573,92-16573
Citation5 F.3d 1289
Parties, 26 Fed.R.Serv.3d 1117, 21 Media L. Rep. 1961 Mark V. SHOEN, Plaintiff-Appellee, v. Leonard Samuel SHOEN, et al., Defendants. Edward J. SHOEN, Plaintiff-Appellee, v. Leonard Samuel SHOEN, et al., Defendants. Ronald J. Watkins, Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

Gloria C. Phares, Weil, Gotshal & Manges, New York City, and Guy Bradley Price, Phoenix, AZ, for appellant Watkins.

Richard M. Amoroso, Cohen and Cotton, Phoenix, AZ, for appellee Mark Shoen.

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

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

Before NORRIS, BEEZER, and KLEINFELD, Circuit Judges.

WILLIAM A. NORRIS, Circuit Judge:

This appeal presents the question whether an investigative author, at work on a forthcoming book, may be compelled to testify and produce notes and tape recordings of interviews he conducted with a source who happens to be a defendant in a defamation action. We hold, under the circumstances of this case, that he may not.

I

Appellant Ronald Watkins is an investigative author of books on topical and controversial subjects. He became involved in this defamation action because of his work on a forthcoming non-fiction book about a long and bitter family feud over control of the highly successful U-Haul Company--a feud pitting the patriarch of the family and founder of U-Haul, Leonard Shoen, against two of his sons, Mark and Edward Shoen. In the midst of these family quarrels, Eva Berg Shoen, the wife of Leonard's eldest son Sam, was found brutally murdered in her family's log cabin in Telluride, Colorado. The murder remains unsolved.

Following Eva's murder, Watkins, the author of two previous investigative books on issues of current interest, 1 secured a contract with a major publisher to write a book about the Shoen family, its battles over control of U-Haul, and the murder of Eva Shoen. The book, entitled Birthright, is slated for publication in late 1993.

Leonard Shoen agreed to cooperate with Watkins by providing source material for the book in exchange for a share of future royalties. Watkins then conducted a number of research interviews with Leonard, some of which were tape recorded by Watkins. Leonard's cooperation as a source for Watkins' book was not kept secret; nor does it appear that Leonard had any expectation that the information he provided Watkins would remain confidential.

Meanwhile, Mark and Edward Shoen, the two sons at war with Leonard over U-Haul, brought this defamation against their father, alleging that he made public statements linking them to the murder of their sister-in-law Eva. 2 Mark and Edward do not claim that their father made any of his allegedly defamatory statements to Watkins. However, as part of their pretrial discovery, plaintiffs served Watkins with a subpoena duces tecum ordering him to appear at a deposition, testify, and produce any notes, documents, electronic recordings, or any other records in his possession "relating to the death of Eva Berg Shoen." After failing to obtain a protective order under Arizona's statutory "press shield" law, 3 Watkins appeared at the scheduled deposition but refused to produce any documents or recordings or to answer any questions concerning the substance of his interviews with Leonard Shoen. When plaintiffs filed a motion to compel production of documents and testimony, Watkins responded with a motion to quash on the ground that compulsory disclosure of his interviews with Leonard Shoen would violate his qualified First Amendment privilege as a journalist.

The district court denied Watkins' motion to quash and granted the plaintiffs' motion to compel, ruling that Watkins, as an investigative author, had standing to invoke the journalist's privilege, but that in the particular circumstances of this case, the qualified privilege must yield to the plaintiffs' litigation needs. The court ordered Watkins to testify about all the "communications by [Leonard] Shoen to Mr. Watkins and [to produce] such materials as may memorialize those communications." ER at 159.

The scope of the court's order later became a matter of dispute. In a telephone conference, the court stated that the plaintiffs were entitled to "each and every method, mode, scrap of paper, computer disk, note, recollection, shred of evidence that would evidence" Leonard Shoen's communications to Watkins on matters concerning "the murder, the family feud, and any statements made as to ... the plaintiffs [Mark and Edward Shoen] themselves." ER at 168.

When Watkins refused to appear at the second deposition, the district court held him in contempt. Watkins now appeals the contempt order on the ground that the discovery order compelling him to divulge all that Leonard Shoen told him for use in his book violates his qualified First Amendment privilege as a journalist. We agree and vacate the order holding Watkins in contempt. 4

II

The basic facts underlying the court's discovery order are not in dispute. The analysis begins with two threshold legal questions: First, does an investigative book author have standing to invoke the journalist's privilege? Second, does the journalist's privilege protect information and materials obtained without a guarantee of confidentiality? Because these are pure questions of law, our review is de novo. See United States v. McConney, 728 F .2d 1195, 1201 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984).

Because we answer both these threshold legal questions in the affirmative and hold that the qualified privilege applies in this case, we must decide a third question: Have the plaintiffs demonstrated a need for Watkins' information that is sufficient to overcome the interests favoring non-disclosure? Because this question requires us to consider legal principles in the mix of fact and law, and to exercise judgment in resolving conflicting legal values, we decide this question de novo. Id. at 1202.

III

We start with the premise that pre-trial discovery is ordinarily "accorded a broad and liberal treatment." Hickman v. Taylor, 329 U.S. 495, 507, 67 S.Ct. 385, 392, 91 L.Ed. 451 (1947). If no claim of privilege applies, a non-party can be compelled to produce evidence regarding any matter "relevant to the subject matter involved in the pending action" or "reasonably calculated to lead to the discovery of admissible evidence." See Fed.R.Civ.P. 26(b)(1). This broad right of discovery is based on the general principle that litigants have a right to "every man's evidence," United States v. Bryan, 339 U.S. 323, 331, 70 S.Ct. 724, 730, 94 L.Ed. 884 (1950), and that wide access to relevant facts serves the integrity and fairness of the judicial process by promoting the search for the truth.

However, when facts acquired by a journalist in the course of gathering the news become the target of discovery, a qualified privilege against compelled disclosure comes into play. In Farr v. Pitchess, 522 F.2d 464, 467-68 (9th Cir.1975), cert. denied, 427 U.S. 912, 96 S.Ct. 3200, 49 L.Ed.2d 1203 (1976), we interpreted Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972), as establishing such a qualified privilege for journalists. Eight of the other nine circuits that have decided the question read Branzburg the same way. 5

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.' " Herbert v. Lando, 441 U.S. 153, 183, 99 S.Ct. 1635, 1652, 60 L.Ed.2d 115 (1979) (Brennan, J., dissenting) (quoting McCormick on Evidence 152 (2d ed. 1972)).

We held in Farr that the journalist's privilege recognized in Branzburg was a "partial First Amendment shield" that protects journalists against compelled disclosure in all judicial proceedings, civil and criminal alike. Farr, 522 F.2d at 467. Nevertheless, we stressed that the privilege is qualified, not absolute, and held 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." Id. at 468.

IV

Before we weigh the competing interests at stake in this case, we must first decide two threshold legal questions of first impression in this circuit: whether Watkins, as an investigative book author, has standing to invoke the journalist's privilege, and whether the privilege operates to shield information provided by a source without an expectation of confidentiality.

A

Plaintiffs argued below that Watkins has no standing to invoke the journalist's privilege because book authors are not members of the institutionalized print or broadcast media. 6 We disagree.

So far, the only circuit that has addressed this question is the Second, which did so in von Bulow v. von Bulow, 811 F.2d 136 (2nd Cir.), cert denied 481 U.S. 1015, 107 S.Ct. 1891, 95 L.Ed.2d 498 (1987). In von Bulow, the Second Circuit held that the journalist's privilege was not limited to reporters employed in the traditional print or broadcast media. The purpose of the journalist's privilege, it reasoned, was not solely to protect newspaper or television reporters, but to protect the activity of "investigative reporting" more generally. Id. at 142-43. Thus, the court said, it makes no difference whether "[t]he intended manner of dissemination [was] by newspaper, magazine, book, public or private broadcast medium, [or] handbill" because " '[t]he press in its historic connotation comprehends every sort of publication...

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