State ex rel. Classic III Inc. v. Ely

• Citation: 954 S.W.2d 650
• Decision Date: 28 October 1997
• Docket Number: No. WD,WD
• Parties: 26 Media L. Rep. 1427 STATE of Missouri, ex rel., CLASSIC III INCORPORATED and Carl Danbury, Relators, Pulitzer Publishing Company, Amicus Curiae, Missouri Press Association, Amicus Curiae, v. Hon. William W. ELY, Judge 16th Judicial Circuit, Respondent. 53850.
• Court: Missouri Court of Appeals

Page 650

954 S.W.2d 650

26 Media L. Rep. 1427

STATE of Missouri, ex rel., CLASSIC III INCORPORATED and Carl Danbury, Relators, Pulitzer Publishing Company, Amicus Curiae, Missouri Press Association, Amicus Curiae, v. Hon. William W. ELY, Judge 16th Judicial Circuit, Respondent.

No. WD 53850.

Missouri Court of Appeals,

Western District.

Oct. 28, 1997.

Paul V. Herbers, Cooling & Herbers, Kansas City, Edward H. Wasmuth, Jr., Smith, Gambrell & Russell, L.L.P., Atlanta, GA, for Relators.

James P. Dalton, P.C., Jefferson City, K. Michael O'Connell, Gregory M. Cork, Cullen & O'Connell, Washington, DC, for Respondent.

Mark P. Johnson, Amy E. Bauman, Sonnenschein Nath & Rosenthal, Kansas City, for The Hearst Corporation, amicus curiae.

Robert Hoemeke, Joseph E. Martineau, Victoria I. Goldson, Lewis, Rice & Fingersh, L.C., St. Louis, Thomas M. Martin, Kansas City, for Pulitzer Publishing Company, amicus curiae.

Before ELLIS, P.J., and LAURA DENVIR STITH and HOWARD, JJ.

LAURA DENVIR STITH, Judge.

Relators, Classic III Incorporated and Carl Danbury, petition this Court for a writ of prohibition to forbid Judge William M. Ely from enforcing his order compelling Classic III and Mr. Danbury to reveal the identities of individuals with whom Classic III's employees spoke before and after the publication of an article in rpm, a magazine published by Classic III. The evidence in the record is that Classic III and Mr. Danbury did not use any information provided by these individuals in the preparation of the article and that the individuals' identities are therefore protected by the reporter's shield privilege. We find that the individual's identities are privileged and, therefore, make the preliminary writ of prohibition permanent.

I. FACTUAL AND PROCEDURAL BACKGROUND

Classic III Incorporated publishes a monthly magazine called rpm marketed to truck drivers. Carl Danbury, associate publisher of the magazine, wrote an article entitled "A Special Report: Two Owner-Operator Associations Are Under Scrutiny Because of Impending Court Battles," which was published in the April 1995 issue of rpm. The article concerned the insurance practices of Owner-Operator Services, Inc. ("OOSI"), a subsidiary of the Owner-Operator Independent Truck Drivers Association, Inc. ("OOIDA") that offers insurance to OOIDA members. The cover of the issue was labeled "Special Report," and the inside cover read "Guilt By Association? OOIDA & I-TOO Insurance Practices in Question." ¹ The text of the article reported, among other things, that a former OOSI employee had been criminally indicted in Florida for fraud and racketeering.

In doing research for the article, Mr. Danbury had a telephone conversation with an individual who asked that his or her identity be kept confidential. Mr. Danbury swore in an affidavit that he did not rely on anything this person said when preparing the article. Also prior to publication of the article, Roxanne Campbell, editorial director of rpm, spoke with two truckers. She specifically promised those individuals confidentiality. After publication of the April issue, Ms. Campbell spoke with several individuals who commented on Mr. Danbury's article. These individuals spoke with Ms. Campbell in confidence. Ms. Campbell also received an anonymous phone call from an individual referring to the article. That person specifically requested the comments remain confidential.

In May 1995, OOIDA and OOSI ("Plaintiffs") filed a defamation action against Classic III and Mr. Danbury ("Relators") claiming that the April 1995 issue of rpm contained false and defamatory statements. ² During her deposition, Ms. Campbell testified that she was aware of two independent truckers who had questioned OOIDA insurance practices, but that rpm did not rely on them in preparing the article. When asked to identify those individuals, Ms. Campbell refused, and counsel objected on the basis that the information was privileged. During Mr. Danbury's deposition, when asked about the confidential telephone conversation he had, he refused to reveal the individual's identity, and counsel objected on the basis of the reporter's shield privilege. Plaintiffs have offered no evidence to counter Relators' claims they promised confidentiality and that they did not rely on these confidential informants in preparing the article.

OOIDA and OOSI also submitted interrogatories to Classic III and Mr. Danbury requesting the details of investigations related to the article and the identities of any individuals Classic III's employees communicated with in connection with the article. Classic III and Mr. Danbury again refused to provide the identities of the above individuals who had contacted them in confidence on the basis that this information was protected by the reporter's shield privilege. They also refused to provide the names of the individuals who called Ms. Campbell to comment on the article after it was published. Relators stated that those individuals spoke to Ms. Campbell in confidence and probably would not have spoken to her if they had known their names would become a matter of public record. Relators also noted that these conversations could not have formed a basis for the article because they took place after publication. Finally, Relators do not know who made the anonymous phone call to Ms. Campbell after the article was published, and they refused to reveal the content of that conversation. OOIDA and OOSI then filed a motion to compel them to provide this information. Their motion to compel does not dispute that the Relators promised confidentiality to their sources, but does contest their right to honor that promise in the face of Plaintiff's legitimate attempts to obtain evidence relevant to their claims.

The court below held that Missouri does not recognize a reporter's shield privilege of any kind. It therefore analyzed Plaintiffs' discovery requests under Missouri's general rules of discovery. Because the court believed that the requested information might lead to the discovery of relevant evidence, it ordered Relators to respond to the discovery by revealing the requested names of persons with whom Mr. Danbury and Ms. Campbell had spoken. Relators immediately sought a writ of prohibition from this Court, arguing that prohibition is the proper remedy where, as here, the trial court has ordered a party to reveal otherwise privileged information.

II. PROHIBITION IS THE PROPER REMEDY

We agree that prohibition is the proper remedy. As the Missouri Supreme Court reaffirmed in a case decided after we had granted our preliminary writ in this case:

When a party claims material that it has been directed to produce is privileged, a writ of prohibition is appropriate to determine whether the privilege claimed in fact covers the materials demanded. This is because "the damage to the party against whom discovery is sought is both severe and irreparable" if the privileged material is produced and this "damage cannot be repaired on appeal."

State ex rel. Boone Retirement Ctr., Inc., v. Hamilton, 946 S.W.2d 740, 741 (Mo. banc 1997) (quoting State ex rel. Wilfong v. Schaeperkoetter, 933 S.W.2d 407, 408 (Mo. banc 1996)).

III. THE FIRST AMENDMENT PROVIDED RELATORS WITH A QUALIFIED PRIVILEGE IN THIS CIVIL CASE INVOLVING CONFIDENTIAL SOURCES

As Plaintiffs correctly note, no Missouri court has as yet affirmatively recognized a reporter's shield privilege based on the First Amendment to the United States Constitution or based on the comparable provision set out in Article I, Section 8 of the Missouri Constitution. Neither has the Missouri legislature enacted such a privilege by legislation. As Plaintiffs recognize, however, this does not end our inquiry, for neither has any Missouri court ever held that Missouri would not recognize such a privilege. Indeed, Plaintiffs recognize that all but a tiny minority of courts to address the issue in the last twenty-five years have held that such a privilege must be recognized in appropriate circumstances so as to protect First Amendment freedoms. Plaintiffs' argument is rather that "[i]f the Missouri judiciary is to adopt a privilege in an effort to bolster those freedoms, however, it should do so only in the context of a case in which those freedoms truly are at issue." This case, Plaintiffs assert, is a simple discovery dispute which does not involve the privilege at all, and, thus, should not be the vehicle for recognition of this privilege.

In support of this argument, Plaintiffs suggest that the cases which have adopted a qualified reporter's shield privilege "almost uniformly have emphasized the privilege's role in protecting the sources of information used by the press in preparation and publication of news stories." Plaintiffs then argue that where, as here, the reporter claims that he or she did not use the information provided by the confidential source in preparing the allegedly libelous article, then the privilege does not apply; it is limited solely to sources of information actually included by the reporter in the article.

The central issue before us is thus whether this Court should find that a "reporter's shield privilege" applies to protect Relators from being forced to reveal the identity of and confidential communications made by confidential sources where, as here, the record shows that Relators did in fact promise confidentiality but did not rely on these sources in actually preparing the allegedly libelous article. For the reasons discussed below, we answer in the affirmative.

A. Development of Reporter's Shield Privilege in Grand Jury Cases.

A fuller understanding of the principles underlying our ruling requires a brief analysis of the development of the law governing a qualified reporter's shield privilege. The United States Supreme Court first addressed the issue whether the First Amendment guarantees a reporter a privilege against revelation of confidential sources or information in ...