Ventura v. The Cincinnati Enquirer
| Decision Date | 28 January 2005 |
| Docket Number | No. 03-3440.,03-3440. |
| Parties | George G. VENTURA, Plaintiff-Appellant, v. THE CINCINNATI ENQUIRER; Gannett Company, INC., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Sixth Circuit |
ARGUED: Marc D. Mezibov, Mezibov & Jenkins, Cincinnati, Ohio, for Appellant. John C. Greiner, Graydon, Head & Ritchey, Cincinnati, Ohio, for Appellees. ON BRIEF: Marc D. Mezibov, John P. Feldmeier, Mezibov & Jenkins, Cincinnati, Ohio, for Appellant. John C. Greiner, John Anthony Flanagan, Graydon, Head & Ritchey, Cincinnati, Ohio, Thomas C. Green, Kristin G. Koehler, Mark D. Hopson, Sidley, Austin, Brown & Wood, Washington, D.C., Robert C. Bernius, Nixon Peabody LLP, Washington, D.C., for Appellees.
Before: KRUPANSKY,* RYAN, and COLE, Circuit Judges.
Plaintiff-appellant George G. Ventura brought this diversity action against The Cincinnati Enquirer and its parent company, Gannett Co. (collectively the "Enquirer"), claiming breach of contract, tortious breach of contract, promissory estoppel, promissory fraud, negligent hiring or supervision, and negligent disclosure. Ventura alleged that the Enquirer disclosed his identity as a news source to a Cincinnati grand jury investigating the illegal news gathering actions of one of the newspaper's former reporters. Specifically, Ventura maintained that he was a confidential news source assisting former Enquirer reporter Michael Gallagher on a multi-part expose of the plaintiff's former employer, Chiquita Brands International, Inc. ("Chiquita"). In his role as a news source, Ventura illegally accessed Chiquita's voice-mail system. Ventura claimed that the disclosure of his identity as a news source breached a confidentiality agreement he had reached with Gallagher. Because Ohio law clearly grants immunity from civil liability for disclosure of information in just such an instance as the matter before us, this court affirms the grant of summary judgment by the district court.
In September 1997, Ventura learned, via the internet, that Gallagher and Cameron McWhirter, reporters on the Enquirer staff, were investigating Chiquita's business practices as background for a series of newspaper articles on the company. In connection with their research, the reporters sought inside information about the company. Ventura volunteered his services to the Enquirer reporters, having left Chiquita's employ thirteen months prior under less than amicable circumstances. Chiquita had employed Ventura as its Senior Legal Counsel in Equador. In early 1996, while acting as Senior Legal Counsel in Honduras, Ventura parted with the company, claiming constructive discharge and discrimination. After his departure, Ventura threatened the company with litigation and demanded a $1.5 million payment to ensure against future legal action and to prevent a letter detailing Chiquita's treatment of minority employees from being released to the press. Ventura supported his claim with transcripts of internal Chiquita voice-mail messages taken from the company's voice-mail system after the plaintiff had separated from the company.1
Ventura offered to provide Gallagher with information about Chiquita. However, rather than merely serve as a source of information, Ventura enlisted Gallagher in a scheme to access the Chiquita voice-mail system. Ventura testified that he had cracked the company's password system through random efforts, giving him unauthorized access to individual voice-mail message boxes. According to the record, Ventura encouraged the reporters to listen to these messages and provided the passwords to Gallagher who incorporated the stolen voice messages into articles he wrote for publication.
Prior to their activity, Gallagher and Ventura had entered into a mutual agreement that Ventura would be treated as a confidential source, and that his role in providing the voice-mail codes would remain undisclosed. Ventura, however, did not expect the reporters to hide the fact that he had spoken with them. Indeed, Ventura himself told Chiquita that he was speaking with Gallagher, in an apparent effort to convince Chiquita that he was not a confidential source. In his testimony, Ventura admitted that:
[The Enquirer] could use my name always honoring the commitment that they had made, not informing anybody that I was a confidential source, keeping me otherwise anonymous. They could use my name ... but not breaching their agreement with me to keep me — to keep me confidential and anonymous as a confidential source.
On May 3, 1998, the Enquirer published the first of a series of articles critical of Chiquita using excerpts from the company's voice-mail messages. Chiquita notified law enforcement officials regarding the unauthorized use of the voice-mail and identified Ventura as a principal suspect. After the Court of Common Pleas appointed a Special Prosecutor, Chiquita provided investigators with Ventura's threatened press release and the voice-mail transcripts that had accompanied plaintiff's 1996 litigation letter. Chiquita also reported that Ventura had admitted speaking with Gallagher. Finally, a few weeks after the initial publication of the Enquirer articles, Chiquita demonstrated to the newspaper that Gallagher had illegally invaded the voice-mail system.
As a result of these revelations, the Enquirer fired Gallagher on June 26, 1998, and demanded, both orally and in writing, that he return all Enquirer property in his possession including files, tape recordings, and notes. The Enquirer also publicly apologized for Gallagher's misconduct and paid Chiquita more than $10 million in a settlement.
A mere three hours after the Enquirer fired Gallagher, a Cincinnati grand jury subpoenaed the reporter, requiring him to produce all materials related to Chiquita in his custody or control. Gallagher moved to quash the subpoena and the court placed the reporter's materials under seal. Nearly a month later, the grand jury subpoenaed Gallagher's home computer, from which prosecutors recovered incriminating e-mail messages from Ventura which Gallagher thought he had deleted.
On September 10, 1998, as part of a plea agreement, Gallagher proffered his own testimony and released the sealed materials to the grand jury. Those materials included tape recordings of telephone conversations with Ventura regarding Chiquita's voice-mail system. The evidence obtained from Chiquita and from Gallagher led to Ventura's indictment on September 16, 1998.
Ventura pled no contest, was convicted of multiple counts of Attempted Unauthorized Access to a Computer System, and was placed on probation for two years. The state of Utah, where Ventura was a member of a law firm, as well as the District of Columbia, suspended him from practice based on the Ohio criminal conviction.
In the instant matter, the district court granted the Enquirer's motion for summary judgment, finding no factual evidence to support Ventura's allegation that the Enquirer had broken a promise to protect his identity. The district court also determined that summary judgment was proper because Ohio law granted "immunity from civil liability for disclosure of information... to the prosecuting attorney and/or the grand jury." The district court concluded that witnesses in criminal cases are cloaked with an absolute privilege which "`encourage[s] the reporting of criminal activity by removing any threat of reprisal in the form of civil liability' and `aid[s] in the proper investigation of criminal activity and those responsible for crime.'" (Quoting M.J. DiCorpo, Inc. v. Sweeney, 69 Ohio St.3d 497, 634 N.E.2d 203, 209 (1994)). The district court held that the privilege barred all of Ventura's claims, as a matter of law. In response, the plaintiff filed this timely notice of appeal.
This court reviews the district court's grant of summary judgment de novo. Smoot v. United Transp. Union, 246 F.3d 633, 649 (6th Cir.2001). Additionally, this court reviews the denial of a motion to compel for an abuse of discretion. Lavado v. Keohane, 992 F.2d 601, 604 (6th Cir.1993) (). Finally, this court applies the abuse of discretion standard to assess the propriety of assertions of privilege. United States v. Pugh, 142 F.3d 438 (6th Cir. Mar. 31, 1998) (unpublished).
Ventura has maintained that he was damaged when the Enquirer improperly disclosed his identity as a confidential source. However, the record evidence does not support this contention.
Instead, the evidence demonstrates that the Enquirer did not disclose the identity of any confidential source. Chiquita confirmed that the Enquirer did not disclose to the company the plaintiff's role as a confidential source. Additionally, when the Enquirer was served with grand jury subpoenas it asserted its Shield Law privilege and established a screening process designed to withhold materials identifying confidential sources. Finally, the Special Prosecutor not only confirmed that the Enquirer never produced documents disclosing Ventura's status as a source, but confirmed that no employee of the newspaper identified the plaintiff as a confidential source.
Nevertheless, Ventura has argued on appeal that the Enquirer provided the Special Prosecutor with "Ventura-identifying materials." To this end, the plaintiff has specifically noted the Enquirer's production of a "post-it" note containing the letters "GV" and Ventura's phone number. Additionally, plaintiff has relied upon deposition testimony from Gallagher to assert that documents, allegedly produced by the Enquirer, "identified him either through fingerprints or other identifying criteria."
None of this material evidence bears on the issue in the instant case: whether the Enquirer identified Ventura as the confidential source of voice-mail access codes — the grounds...
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