Ventura v. Cincinnati Enquirer
| Citation | 246 F.Supp.2d 876 |
| Decision Date | 11 February 2003 |
| Docket Number | No. C-l-99-793.,C-l-99-793. |
| Parties | George VENTURA, Plaintiff v. THE CINCINNATI ENQUIRER, et al., Defendants |
| Court | United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio |
This matter is before the Court upon the Report and Recommendation of the United States Magistrate Judge (doc. no. 93), to which both plaintiff and defendants object (doc. nos.94, 95). An oral hearing on the parties' objections was held on November 20, 2002. The matter is now ripe for de novo review and decision.
Plaintiff George G. Ventura brings this action for breach of contract and tortious breach of contract (Counts I and II), promissory estoppel (Count III), promissory fraud (Count VI) against defendants'alleged disclosure (Count VI) against defendants The Cincinnati Enquirer (Enquirer) and Gannett Company, Inc. (Gannett). The action arises out of defendants' alleged disclosure of plaintiff as a confidential source of information with respect to a series of articles the Enquirer had intended to publish regarding Cincinnati-based Chiquita Brands, International, Inc. (Chiquita), and plaintiff's subsequent indictment and conviction on criminal charges for conduct relating to the securing of Chiquita voice mail information.
The parties have submitted proposed findings of fact and conclusions of law in connection with their objections to the Report and Recommendation (doc. nos. 102, 103). The undisputed facts are as follows:
1. In 1996, the Cicinnati Enquirer began to investigate and report on certain business activities of Chiquita.
2. Defendants assigned two veteran reporters, Micheal Gallagher and Cameron McWhirter (the reporters), to produce what ultimately become known as the "Chinuita Story."
3. Defandants actively sought out individuals willing to serve as news sources for the Chinquita Story. The Enquirer posted an inquiry on the internet soliciting the assistance of individuals who were able and willing to provide information and/or documentation for the Chiquita Story.
4. Plaintiff George Ventura, a former Chiquita employee, responded to the Enquier's request for assistance by contacting the Enquirer and explaining that he had information which the reporters might find useful.
5. The reporters promised plaintiff that they would not disclose his identity as a confidential news source in exchange for information for the Chiquita Story.
6. Plaintiff and the Enquirer understood that the commitments made by the reporters were binding upon defendants and that defendants were bound by the same pledge of confidentiality.
7. Plaintiff agreed to provide defendants with numerous documents and information for preparation of the Chiquita Story.
8. Defendants concealed from plaintiff the fact that both reporters were secretly taping many of their conversations with him and lied when plaintiff asked them if they were taping him.
9. On October 3, 1997, Gallagher made his first entry into Chiquita's voice mail system.
10. A number of weeks after plaintiff had entered into his agreement with defendants, Ventura gave McWhirter voice mail codes to certain voice mailboxes at Chiquita. McWhirter did not use the codes but gave them to Gallagher after having received them from plaintiff.
11. Defendants published the first installment of the Chiquita Story on May 3,1998.
12. Following publication, Chiquita threatened the Enquirer with civil litigation and provided it with information demonstrating Gallagher's illegal entries into its voice mail system. The Enquirer settled with Chiquita on or about June 28, 1998, publicly apologizing for Gallagher's conduct and paying Chiquita more than $10 million dollars.
13. On May 22, 1998, the Hamilton County Court of Common Pleas appointed a special prosecutor to investigate potential criminal conduct surrounding the gathering of information for the Chiquita Story.
14. In anticipation of the legal action, defendants retained numerous materials related to the Chiquita Story, including source-identifying materials.
15. On June 26, 1998, a grand jury subpoenaed the Enquirer. The subpoena directed the Enquirer to produce to the grand jury materials utilized or obtained in connection with the gathering of information for the Chiquita Story.
16. The Enquirer terminated Gallager's employment that same day. The Enquirer demanded that Gallagher return to it all Enquirer "property ... in [his] possession, including files, photographs, tape recordings, recording devices, notes, calendars, etc."
17. In response to the grand jury subpoena, the Enquirer asserted Ohio's Shield Law, which allows news reporters to protect materials identifying confidential sources, and established a screening process designed to withhold from the special prosecutor and the grand jury evidence that identified confidential news sources.
18. The parties disagree as to whether the Enquirer produced documents that identified plaintiff as a confidential source to the grand jury. It is undisputed that among the materials the Enquirer produced pursuant to the subpoena was a post-it note with the letters "GV" and plaintiffs telephone numbers written on it.
19. Before and after publication of the Chiquita Story, Gallagher had removed source-related materials from the Enquirer office.
20. After retaining an attorney, Gallagher retrieved several Chiquita materials at his home, including several audio tapes and documents identifying plaintiff as a confidential news source. Gallagher boxed up the materials and gave them to his attorney.
21. Gallagher received a subpoena from the special prosecutor asking for all Chiquita-related materials in his possession. Gallager filed a motion to quash the subpoena under Ohio's Shield Law, stating that there were "a number of attached tapes and documents which if produced would reveal the identity of a confidential source."
22. For approximately two months after Gallagher filed his motion to quash, the source-identifying materials remained sealed pursuant to court order.
23. In or about July 1998, the grand jury subpoenaed Gallagher's home computer, from which prosecutors recovered e-mail messages from and to Ventura.
24. On September 10, 1998, as part of a plea agreement which Gallagher had entered into, evidence which the state court had sealed, including recordings of phone conversations with plaintiff, was released to the grand jury and the special prosecutor. Among the items released was defendants' audio tape of plaintiffs conversation with McWhirter, wherein plaintiff is heard giving voice mail codes to McWhirter.
25. On September 16, 1998, plaintiff was indicted on ten felony counts related to accessing Chiquita's voice mail system. Plaintiff pled no contest to, and was convicted of, four misdemeanor counts of attempted unauthorized access to a computer system in violation of Ohio law.
26. Plaintiff thereafter lost his partnership and employment with his Utah law firm and was suspended from the practice of law for 90 days by the Utah bar.
Defendants move for summary judgment on all claims pled in the amended complaint. In support of their motion, defendants argue that there is no probative, admissible evidence to support the claim that defendants identified plaintiff as the confidential source who provided Chiquita voice mail codes; plaintiff cannot recover damages based upon an alleged promise to withhold evidence from a grand jury or based upon alleged compliance with a grand jury subpoena; plaintiffs own criminal conduct rather than defendant's conduct caused plaintiffs alleged injuries; and all of the individual counts of the complaint are deficient in one or more respects.
On July 25, 2002, the United States Magistrate Judge issued a Report and Recommendation recommending that defendants' motion for summary judgment be granted in part and denied in part. Specifically, the Magistrate Judge recommended that summary judgment be entered against plaintiff and in favor of defendants on plaintiffs claims for breach of contract, tortious breach of contract, and negligent hiring or supervision. The Magistrate Judge recommended that summary judgment be denied with respect to plaintiffs claims for promissory estoppel, promissory fraud, and negligent disclosure.
Defendants object to the Report and Recommendation on four grounds: 1) The Magistrate Judge erred by failing to consider defendants' argument that no admissible evidence supports plaintiffs claim that defendants had identified him as the confidential source who provided the voice mail codes; 2) the Magistrate Judge erred by failing to consider defendants' argument that plaintiff may not recover civil damages based upon the alleged inappropriate submission of evidence to the grand jury that indicted him; 3) the Magistrate Judge erred by failing to consider defendants' argument that plaintiffs own criminal conduct rather than defendants' conduct caused his alleged injuries, and 4) the Magistrate Judge's recommendation that summary judgment be denied on plaintiffs claims of promissory estoppel, promissory fraud, and negligent disclosure was erroneous.
In response to defendants' objections, plaintiff argues that there is ample evidence to demonstrate that defendants caused plaintiff to be revealed as a confidential news source and thereby directly and proximately caused injury to him. Plaintiff contends that in addition to deposition testimony of Michael Gallagher cited by the Magistrate Judge which reveals that defendants turned plaintiffs name over to the special prosecutor, the record demonstrates that defendants caused Ventura to be disclosed as a confidential news source by 1) surreptitiously tape recording him; 2) failing to destroy or secure the audio tapes and other source-identifying...
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