Subpoena Duces Tecum To Stearns v. Zulka, In re, 3-785

• Decision Date: 26 February 1986
• Docket Number: No. 3-785,3-785
• Citation: 489 N.E.2d 146
• Parties: , 12 Media L. Rep. 1837 In re SUBPOENA DUCES TECUM TO John STEARNS, Appellant (Petitioner Below), v. Helen J. ZULKA, et al., Appellees (Respondents/Defendants Below). Colby VOLLMER, et al., Plaintiffs Below, v. Helen J. ZULKA, et al., Appellees (Defendants Below). A 185.
• Court: Indiana Appellate Court

Page 146

489 N.E.2d 146

54 USLW 2507, 12 Media L. Rep. 1837

In re SUBPOENA DUCES TECUM TO John STEARNS, Appellant

(Petitioner Below),

v.

Helen J. ZULKA, et al., Appellees (Respondents/Defendants Below).

Colby VOLLMER, et al., Plaintiffs Below, v. Helen J. ZULKA, et al., Appellees (Defendants Below).

No. 3-785 A 185.

Court of Appeals of Indiana Third District.

Feb. 26, 1986.

W. Paul Helmke, Jr., Linda Peterson Powell, Helmke, Beams, Boyer & Wagner, Fort Wayne, for appellant.

Jerome J. O'Dowd, Fort Wayne, for appellees.

STATON, Presiding Judge.

John Stearns appeals a trial court order denying his motion to quash a subpoena duces tecum issued by the defendants in a personal injury action to which Stearns was not a party. Stearns, a newspaper photographer for the Fort Wayne News-Sentinel claimed a privilege against compulsory disclosure of information obtained in the course of his employment with the newspaper. The court, in a general judgment, overruled Stearn's motion to quash and ordered Stearns to produce, within fourteen days, photographs taken at the scene of the accident. Stearns presents these issues for review:

I. Whether the trial court erred in overruling the Motion to Quash, without first finding that the photographs were relevant; that there were no alternative sources for the information to be obtained from the photographs and that the defendants had a compelling interest in the production of the photographs.

II. Whether the trial court erred in ordering Stearns to produce the photographs when the subpoena duces tecum was issued in connection with a summary judgment hearing which was continued and no Trial Rule 34(C) request was filed with the subpoena.

On May 29, 1985 Helen Zulka and others (Zulka), defendants in a personal injury auto accident, served a subpoena duces tecum on Stearns ordering him to appear and testify for defendants on June 10, 1985 at a hearing on defendants' motion for summary judgment. Stearns was ordered to bring with him:

"Copies of all photographs taken by you on September 8, 1982 at the scene of an automobile-pedestrian accident in the 2500 block of South Wayne Avenue, Fort Wayne, Indiana, at approximately 8:15 A.M. in which a child was struck by an automobile."

On June 3, on Zulka's motion, the summary judgment hearing was continued without date. The same day Stearns filed his motion to dismiss, quash and/or modify the subpoena duces tecum. The court set a hearing on Stearn's motion for June 12, 1985. The record does not contain a transcript of the hearing and the order book entry for June 12 is as follows:

"Defendants appear by counsel. John Stearns, non-party, appears by counsel. Submitted on John Stearns' motion to dismiss, quash, and/or modify subpoena duces tecum. Argument of counsel heard. The Court being duly advised in the premises, now overrules John Stearn'[s] motion to quash and orders John Stearns to produce photographs requested by defendants' attorney, Jerome J. O'Dowd, within fourteen (14) days, at defendants' costs."

Before reaching the merits of Stearn's claim of privilege, we address the question of whether the subpoena duces tecum was an adequate vehicle for obtaining production of the photographs once the summary judgment hearing had been continued.

Ind.Rules of Procedure, Trial Rule 34 permits a party to an action to obtain documents or other tangible items from either another party or a non-party and sets forth the procedures for requesting the items, for objecting to such a request and for enforcing the request. When a party seeks production from another party the rule requires only a request setting forth the items to be inspected and specifying a reasonable time, place and manner for the inspection. The rule contemplates a cooperative atmosphere between parties without resort to the courts. A motion is not required. See 8 Wright & Miller, Federal Practice and Procedure: Civil Sec. 2207. Similarly subsection (C), under which the Indiana rule sets forth the procedure for obtaining items from a non-party, does not speak of a motion, but only a request. Such a request directed to a non-party, however, shall be "included in or with a subpoena served upon such witness or person." TR. 34(C). The request must set forth the same matters as a request to a party--items to be inspected and a reasonable time, place and manner of making the inspection. TR. 34(B). The subpoena duces tecum served on Stearns fairly apprised him of what was requested and set forth when and where--the in-court hearing--he could comply with the request. There was no necessity for a separate motion apprising him of the same facts, as Stearns argues, nor does the authority cited by Stearns support that position. The subpoena did not offer costs associated with supplying the requested photographs, but the trial court's order cured any defect on that point by ordering Zulka to bear the costs.

The relationship between Rule 34 and Rule 45, governing subpoenas, is specifically recognized in the provision of subsection (C) which permits the witness to move to quash the subpoena as permitted by Rule 45(B). We see no reason to read these two rules in isolation from one another. Rule 45 merely sets out in greater detail the requirements for subpoenas issued under a variety of circumstances, including the production of tangible items as well as for taking depositions and attending a hearing or trial. The subpoena directed to Stearns served a dual purpose in requesting him to attend the hearing and bring with him the photographs. Under either Rule 34 or Rule 45 the procedure was adequate to obtain production of the photographs.

II.

Privilege

The majority of Stearns' brief is devoted to his claim that as a newsgatherer he has a qualified privilege against compulsory disclosure of any information acquired in the course of his employment and that the privilege may not be overcome unless Zulka first makes a showing that the information sought is relevant, that there is no alternative source for the information and that Zulka's need for the information is compelling.

When reviewing a general judgment this Court will presume the judgment to be based upon findings which are supported by the evidence and we must affirm if the decision of the trial court can be sustained on any legal ground. Potts v. Offutt (1985), Ind.App., 481 N.E.2d 429, 431. In the instant case we must first determine whether the showing urged by Stearns is required and then whether the evidence would support findings that such a showing has been made.

The newsgatherer's privilege has been often litigated in the courts over the years and as a result of the controversy many states, including Indiana, ¹ have passed shield laws which, in general, provide an absolute privilege ² against revealing confidential sources of information procured in the course of employment for a news reporting entity. Stearns does not, however, rely on the Indiana Shield Law as the source of his privilege. The shield laws in some jurisdictions have been given a narrow reading, restricting their application to the disclosure of the names of confidential informants as opposed to disclosure of the information itself. See Branzburg v. Pound (1970), Ky., 461 S.W.2d 345; Forest Hills Utility Co. v. City of Heath (1973), 37 Ohio Misc. 30, 302 N.E.2d 593. People v. Wolf (1972), 69 Misc.2d 256, 329 N.Y.S.2d 291, aff'd. 39 App.Div.2d 864, 333 N.Y.S.2d 299; Dumez. v. Houma Municipal Fire & Police Civil Service Board (1976), La.App., 341 So.2d 1206. The Indiana courts have not addressed the question of whether IC 34-3-5-1 extends to the information itself or to information which was not received under the cloak of confidentiality.

Stearns urges instead that we consider such non-confidential information protected by a qualified privilege based on the First Amendment to the United States Constitution. In Branzburg v. Pound (1972), 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 the United States Supreme Court firmly established that there is no absolute privilege conferred upon newsmen by the First Amendment to refuse to reveal their sources of information in legal proceedings in which they are subpoenaed. Branzburg dealt specifically with criminal proceedings, leaving open the question of whether a qualified privilege would be available to a non-party newsgatherer in civil actions.

Where confidentiality is involved the courts have recognized that compelled disclosure of confidential sources threatens a journalist's ability to obtain information that is made available only on a confidential basis, and that the effect of such disclosure upon future investigative reporting threatens freedom of the press and the public's need to be informed. Baker v. F & F Investment, 470 F.2d 778, 782 (2nd Cir.1972). The constitutional right involved must yield, however, to a paramount public interest in the fair administration of justice. Garland v. Torre, 259 F.2d 545 (2nd Cir.1958). Thus in Garland, where actress Judy Garland sued Columbia Broadcasting System for defamation based upon a newspaper column attributing certain statements to a "network executive," the Court denied the columnist's claim of privilege against revealing the name of the executive who had provided her with the information. The Court pointed out that while the plaintiff might have been able to learn the identity of the informant, her reasonable efforts in that direction had been unsuccessful. In view of the fact that the claim was not patently frivolous, it was obvious that the information sought was material and relevant. Id. at 551.

Relying upon the Garland formulation the Court in Carey v. Hume, 492 F.2d 631 (D.C.CIR.1974) agreed that in civil litigation the Court should look at the facts on a case by case basis, weighing the need for the testimony in question against the claims of the newsman that the public's right to know is impaired. Id. at 636. The important factor in Carey, as in...