Solargen Elec. Motor Car Corp. v. Am. Motors Corp.

• Decision Date: 26 January 1981
• Docket Number: No. 80-Civ-3809,Misc. No. 410.,80-Civ-3809
• Citation: 506 F. Supp. 546
• Parties: SOLARGEN ELECTRIC MOTOR CAR CORP. and Solargen Electronics, Ltd., Plaintiffs, v. AMERICAN MOTORS CORPORATION, American Motors Sales Corporation and General Motors Corporation, Defendants.
• Court: U.S. District Court — Northern District of New York

506 F. Supp. 546

SOLARGEN ELECTRIC MOTOR CAR CORP. and Solargen Electronics, Ltd., Plaintiffs, v. AMERICAN MOTORS CORPORATION, American Motors Sales Corporation and General Motors Corporation, Defendants.

No. 80-Civ-3809, Misc. No. 410.

United States District Court, N. D. New York.

January 26, 1981.

Romer & Rosenberg, New York City, for plaintiffs; Steven J. Romer, Evelyn F. Cohn, New York City, of counsel.

Bond, Schoeneck & King, Syracuse, N. Y., for defendants; S. Paul Battaglia, Syracuse, N. Y., of counsel.

MEMORANDUM-DECISION AND ORDER

MUNSON, Chief Judge.

Underlying the instant motions to quash subpoenas ad testificandum and duces tecum is a civil antitrust suit instituted by Solargen Electric Motor Car Corporation SEMC and Solargen Electronics, Ltd. SE against American Motors Corporation AMC, American Motors Sales Corporation AMSC and General Motors Corporation GM. The Solargen plaintiffs, which manufacture and market electricity powered vehicles, contend that AMC, AMSC, and GM have conspired to destroy the plaintiffs' business and to deny the plaintiffs any entry into the marketplace. In this regard, certain of the alleged wrongful acts of these defendants concern various manipulations of the news media. For example, paragraph twenty-nine of the complaint states that:

Upon information and belief, GMC, through its agents, paid large sums of money to various persons as an inducement for having photographers and reporters, wearing hidden microphones, go into Plaintiffs' plant facilities and offices located in Cortland, New York, and to have false and defamatory statements and reports appear on television, on radio, and in newspapers across the United States.

Paragraph fifty-one of the complaint recites the following:

GMC did through its officers, employees and/or agents, engage in a series of "dirty tricks", including the following:

* * * * * *

(b) GMC induced photographers and reporters, wearing hidden microphones, to go into Plaintiffs' plant facilities and offices located in Cortland, New York, without authorization, and to engage in a "fishing expedition", and to thereafter broadcast on nationwide network television, edited and misleading portions of taped conversations.

(c) GMC induced various persons, corporations, reporters and nationwide network television stations to defame Plaintiffs by issuing false, misleading and libelous statements, reports and "documentaries" concerning Plaintiffs' electric vehicle program and Plaintiffs' Lead-Crystal battery.

* * * * * *

GMC engaged in the aforementioned series of "dirty tricks" and in other "dirty tricks" and illegal conduct at this time unknown to Plaintiffs for the express purpose of preventing Plaintiffs from entering the market; such exclusionary conduct was designed to destroy Plaintiffs' business in an illegal attempt to maintain and continue the existing monopoly enjoyed by GMC.

Two of the individuals referred to in these paragraphs are apparently asserted to be Mr. Herbert Weisbaum, a news producer of WSTM television, formerly WSYR television, and Mr. Dean Walters, a cameraman and co-employee of Mr. Weisbaum. Although neither of these individuals is a defendant in the Solargen action, these newsmen had been defendants in a libel suit commenced by the Solargen plaintiffs. This libel action was dismissed without prejudice by the New York Supreme Court because, inter alia, of the plaintiffs' failure to properly allege a cause of action. In the Fall of 1978, Mr. Weisbaum interviewed the President of Solargen, and aired an apparently favorable news story in March, 1979, regarding the plaintiffs' electric car. Subsequently, Mr. Walters entered the plaintiffs' facilities, carrying a concealed microphone, and attempted to obtain further information about the electric car. Thereafter, on August 20, 1979, WSTM, formerly WSYR, television aired what the plaintiffs have characterized as "a distorted, false, and malicious documentary, calculated and intended to cause injury to the Plaintiffs." This feature included an interview with Mr. Stanley M. Caulder, who stated that he had been requested by the Department of Energy to review the patents for the plaintiffs' automobile battery. In exchange for broadcasting this story, the plaintiffs contend that Mr. Weisbaum, and/or Mr. Walters, and/or other individuals and entities received monies from GM, the alleged instigator of the apparently unfavorable August 20 feature.

In order to explore its claim concerning the alleged wrongdoing of GM, the Solargen plaintiffs served Messrs. Weisbaum and Walters with subpoenas ad testificandum and duces tecum. These non-party witnesses were requested to appear at designated depositions and to produce all written materials relating to meetings with agents of GM, Newhouse Broadcasting (the owner of WSYR) and Mr. Caulder, where the subject matter of the meetings "concerned, involved, related to, or was in connection with SE, SEMC, or the Electric Vehicle industry in general." Additionally, these individuals were ordered to produce at their depositions all personal bank records covering the period from June 1, 1979, through September 30, 1979, the asserted time during which GM allegedly bribed the journalists.

Messrs. Weisbaum and Walters now appear before this Court upon their motion to quash the subpoenas ad testificandum and duces tecum. The gravamen of their challenge is that the proposed discovery impinges the First Amendment protections accorded to the press. In this regard, Mr. Weisbaum denies ever having any contact or communication with AMC, AMSC, or GM, stating that he discussed the contents of the broadcasts only with employees of the television station. Both newsmen deny receiving any money or other value from GM, AMC, or AMSC, and Mr. Weisbaum additionally denies paying Mr. Caulder to influence his opinion.

For the reasons set forth below, this Court shall grant in part the motion to quash the subpoenas ad testificandum and duces tecum.

II.

Pursuant to Fed.R.Civ.P. 45, the subpoenas ad testificandum and duces tecum supply the procedural predicates for securing the depositions of non-party witnesses. With respect to these subpoenas, the rule provides that the scope of any examination may embrace all matters contemplated by Fed.R.Civ.P. 26(b), subject to the strictures of Fed.R.Civ.P. 26(c). Thus, the sought-after materials must be "relevant to the subject matter involved in the pending action." Rule 26(b). A deponent, however, may seek a protective order from the court against "annoyance, embarassment, oppression, or undue burden or expense ..." Rule 26(c). The burden then rests upon the objecting witness to set forth grounds for the issuance of a protective order, such as the existence of a privilege. Id. See In re Subpoenas Addressed to Fish and Neave, 519 F.2d 116 (8th Cir. 1975); Westinghouse Electric Corporation v. City of Burlington, Vt., 351 F.2d 762 (D.C.Cir. 1965); Biliske v. American Live-Stock Insurance Company, 73 F.R.D. 124 (W.D.Okl. 1977).

Of course, Rules 45 and 26 do not supply the sole guidance for resolving the given motion. The Court recognizes that the First Amendment question raised by the newsmen places this case in a posture different from that position held by other types of discovery cases.

III.

Unquestionably, the press's "constitutionally designated function of informing the public," Zurcher v. Stanford Daily, 436 U.S. 547, 572, 98 S.Ct. 1970, 1985, 56 L.Ed.2d 525 (1978) (Stewart, J., dissenting), plays a prominent role in our constitutional order. See, e. g., Herbert v. Lando, 441 U.S. 153, 183-87, 99 S.Ct. 1635, 1653-54, 60 L.Ed.2d 115 (1979) (Brennan, J., dissenting); Branzburg v. Hayes, 408 U.S. 665, 713-15, 92 S.Ct. 2646, 2686-87, 33 L.Ed.2d 626 (1972) (Douglas, J., dissenting). Hence, various aspects of the business of journalism have been accorded unique protection. The editorial process, for example, has enjoyed a long-standing privilege:

A newspaper is more than a passive receptacle or conduit for news, comment, and advertising. The choice of material to go into a newspaper, and the decisions made as to limitations on the size and content of the paper, and treatment of public issues and public officials — whether fair or unfair — constitute the exercise of editorial control and judgment. It has yet to be demonstrated how governmental regulation of this crucial process can be exercised consistent with First Amendment guarantees of a free press, as they have evolved to this time.

Miami Herald Publishing Company v. Tornillo, 418 U.S. 241, 258, 94 S.Ct. 2831, 2839, 41 L.Ed.2d 730 (1974). Cf: Herbert v. Lando, 441 U.S. at 167-71, 99 S.Ct. at 1644-46. News gathering, and its attendant system of confidential informants, also has received special recognition. Richmond Newspapers, Inc., v. Virginia, ___ U.S. ___, 100 S.Ct. 2814, 2830-31, 65 L.Ed.2d 973 (1980) (Stevens, J., concurring); Branzburg v. Hayes, 408 U.S. at 682-91, 707, 727-28, 92 S.Ct. at 2657-61, 2669, 2672-73 (Stewart, J., dissenting); Pell v. Procunier, 417 U.S. 817, 833, 94 S.Ct. 2800, 2809, 41 L.Ed.2d 495 (1974). In this regard, "the extraordinary protections afforded by the First Amendment carry with them something in the nature of a fiduciary duty to exercise the protected rights responsibly — a duty widely acknowledged but not always observed by editors and publishers." Nebraska Press Association v. Stuart, 427 U.S. 539, 560, 96 S.Ct. 2791, 2803, 49 L.Ed.2d 683 (1976). Moreover, the privileges conferred upon the press are not absolute. Herbert v. Lando, 441 U.S. at 169, 99 S.Ct. at 1645; Branzburg v. Hayes, 408 U.S. at 682-83, 690-91, 697, 92 S.Ct. at 2657, 2661; United States v. Cuthbertson, 630 F.2d 139, 146 (3d Cir. 1980); Miller v. Transamerican Press, Inc., 621 F.2d 721, 725-27 (5th Cir. 1980); Farr v. Pitchess, 522 F.2d 464, 467 (9th Cir. 1975), cert. denied, 427 U.S. 912, 96 S.Ct. 3200, 49 L.Ed.2d 1203 (1976); Baker v. F & F Investment, 470 F.2d...