Silkwood v. Kerr-McGee Corp.

• Decision Date: 23 September 1977
• Docket Number: KERR-M,No. 77-1287,77-1287
• Citation: 563 F.2d 433
• Parties: 3 Media L. Rep. 1087 Karen G. SILKWOOD, by the Administrator of her Estate, William M. Silkwood, etc., et al., Plaintiffs, v. ThecGEE CORPORATION etc., et al., Defendants-Appellees, Arthur Buzz Hirsch, Non-Party Witness-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 433

563 F.2d 433

3 Media L. Rep. 1087

Karen G. SILKWOOD, by the Administrator of her Estate, William M. Silkwood, etc., et al., Plaintiffs, v. The KERR-McGEE CORPORATION etc., et al., Defendants-Appellees, Arthur Buzz Hirsch, Non-Party Witness-Appellant.

No. 77-1287.

United States Court of Appeals, Tenth Circuit.

Submitted July 20, 1977.

Decided Sept. 23, 1977.

William G. Paul, of Crowe, Dunlevy, Thweatt, Swinford, Johnson & Burdick, Oklahoma City, Okl. (L. E. Stringer and John J. Griffin, Jr., of Crowe, Dunlevy, Thweatt, Swinford, Johnson & Burdick, and Derrill Cody, Kerr-McGee Corp., Oklahoma City, Okl., on the brief), for defendants-appellees.

Stephen F. Rohde, of Fleishman, Brown, Weston & Rohde, Beverly Hills, Cal. (Judith Jecmen, of Rudich & Wideman, Los Angeles, Cal., of counsel, on the brief), for non-party witness-appellant.

Paul P. Selvin, of Selvin & Weiner, Los Angeles, Cal., for Writers Guild of America, West, Inc., amicus curiae.

Barbara Scott, New York City, for Motion Picture Assn. of America, Inc., amicus curiae.

Before McWILLIAMS and DOYLE, Circuit Judges, and MARKEY, Chief Judge. ^*

WILLIAM E. DOYLE, Circuit Judge.

The appellant herein is a non-party witness in an action which is pending in the United States District Court for the Western District of Oklahoma. He conducted an investigation into the death of Karen Silkwood as groundwork for the making of a documentary film. As part of pretrial discovery, defendant-appellee Kerr-McGee Corporation gave notice of the taking of his deposition and simultaneously served on him a subpoena Duces Tecum to produce all documents and writings in connection with his investigation. The trial court after considerable proceedings denied protective relief to Hirsch. It ordered him to produce and to answer questions which probed information acquired by him and which he claimed to have been given to him in confidence.

A deposition was taken on April 13-14, 1977, but Hirsch then refused to answer questions which called for disclosure of confidential information. He did, however, respond to questions which sought information as to his previous experience as a journalist and film maker and other matters which he did not regard as confidential.

The embattled issue is, therefore, whether the witness Hirsch is entitled to legal protection against revealing information obtained by him in the course of making a factual investigation of events surrounding the death of the decedent herein, Karen G. Silkwood, which investigation looked to the making of a documentary film depicting the events before and after.

The principal action here was filed on November 5, 1976 in the Western District of Oklahoma by the administrator of the estate of Karen Silkwood and also by the representatives of other survivors of Karen Silkwood.

In general, the claims are those which are alleged to have accrued during her lifetime and which survived her death. It is charged that Kerr-McGee Corporation and certain of its agents, some of which were identified and others not, violated her constitutional rights by conspiring to prevent her from organizing a labor union, by conspiring to prevent her from filing complaints against Kerr-McGee under the Atomic Energy Act and by willfully and wantonly contaminating her with toxic plutonium radiation.

According to the limited facts in the record, Hirsch had been a free-lance reporter who had, in 1969-70, written articles for various newspapers concerning the Chicago Seven trial. Later he had enrolled as a student in the film department of UCLA. There, he learned of Karen Silkwood's death. Through one Larry Cano, an instructor in the film department at UCLA, he undertook together with Cano to produce a factual motion picture account of Karen Silkwood's life and the incidents which attended her death. This investigation was commenced in March 1975, and in July 1976, he, Cano and one Carlos Anderson, who was also a student in the film department at UCLA, agreed to form a production company for the purpose of making a film having to do with Karen Silkwood.

In an affidavit which is in the record, Hirsch stated that he assured all of the witnesses whom he interviewed that he was working for a production company in an effort to make a factually accurate film. He assured the interviewees, who demanded confidentiality, that the information would be kept confidential. He also assured those interviewees who requested that their identities be not revealed that he would respect their requests.

Kerr-McGee's position on this appeal is that they sought first to get facts concerning the basis for this lawsuit from the representative plaintiffs, but were unsuccessful. These witnesses referred the lawyers for Kerr-McGee to the attorneys for the plaintiffs. One Drew Stephens, allegedly a person who was close to the decedent, was also deposed. The allegation is that the information given by him was meager and that he claimed to have delivered his information to Hirsch.

To date it does not appear that Kerr-McGee has sought to obtain information from persons other than those mentioned. The deposition in question was scheduled for March 10, 1977 and was first postponed until March 29. It was then that Hirsch moved to quash the subpoena Duces Tecum or to transfer his deposition to the Central District of California. The motion and the alternative motion were both denied on March 28. Thereafter, Hirsch filed a motion for protective order and to stay deposition together with the production of documents pending a final determination of the motion for protective order. The deposition was postponed to April 13, 1977, at which time the motion for protective order, etc. was denied.

On April 13-14, the deposition was taken, and on that occasion Hirsch invoked his First Amendment privilege on each and every question calling for disclosure of information which he deemed confidential. He answered all other questions.

The trial court's decision denying the motion for protective order assigned as its primary ground that the motion was not timely filed. It went on to hold, however, that even if it had been timely filed, it would have been denied because of lack of merit. The judge conceded that it was not possible for him to conclude as a matter of law that there is no possibility that the information sought might be relevant and that Hirsch could not have prevailed even if his motion had been timely. A footnote in the court's opinion stated that there was no absolute privilege against revelation of news sources or the disclosure of confidential information, citing Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972). He conceded that arguably there is a qualified privilege in the process of developing. In considering the case the court did not balance the opposing considerations nor did it give any consideration to the existence of a qualified privilege.

Our inquiry goes to whether a privilege exists in favor of a non-party witness which permits him to resist pretrial discovery in order to protect a confidential source of information.

Secondly, whether, assuming that such a privilege does exist, it applies to a person in the position of Hirsch.

Third, if Hirsch has a privilege, how should the trial court proceed.

I.

WHETHER THE COURT CORRECTLY RULED THAT APPELLANT WAS

PRECLUDED FROM FILING A MOTION FOR PROTECTIVE ORDER BY

REASON OF NOT HAVING FILED IT IN CONNECTION WITH THE FIRST

MOTION TO TRANSFER THE CAUSE TO CALIFORNIA, CENTRAL DISTRICT

Our conclusion is that this was error. Unquestionably, it is desirable that all motions which are going to be filed be filed at the same time and undoubtedly the rules contemplate this. However, in this instance there were justifications for not doing so. Thus, when one seeks to transfer a case, it is the natural course of things to withhold the motion which goes to the merits of the issue until the transfer motion is determined. For this reason alone, the court's ruling appears to be improper. Added to this is the fact that the protective order particularly was seeking to protect a constitutional right and was a substantial question. Perhaps the trial court did not so regard it. The claimed violation of the First Amendment to the Constitution demanded some evaluation of the merits rather than disposing of it on the ground that it was not filed with the motion to quash the subpoena Duces Tecum and the motion to transfer the cause to California. Hirsch could well have considered that it would have been a waiver of his motions to transfer or to quash if he had filed a motion for protective order at that time.

The trial court ruled on the first motions on March 28, 1977, though notice was received by telephone from Hirsch's counsel on Friday, March 25, 1977, that a motion for protective order was going to be filed. It was filed on March 28, the next court day after the notification. The deposition which had been scheduled for March 29 was continued in order to give Kerr-McGee an opportunity to file a brief.

Undoubtedly, the trial court has broad discretion in the area of discovery motions, but such an order in this area is reversible nevertheless where an abuse of discretion is shown. Considering the importance of the question presented by the motion for protective order in relationship to the lack of magnitude of the problem of failure to file simultaneous motions, it seems to us plain that the trial court should have received the motion and considered it out of time.

II.

SHOULD THE COURT HAVE RECOGNIZED THE EXISTENCE OF A

PRIVILEGE APPLICABLE TO MEDIA REPORTERS UNDER THE

FIRST AMENDMENT?

The request by Hirsch that he be protected from compulsory submission of documents and compulsory testimony was denied out of hand, the court saying that the First Amendment right to gather and disseminate news affords no absolute privilege against the revelation of news sources or the disclosure of confidential...