von Bulow by Auersperg v. von Bulow

Decision Date20 April 1987
Docket NumberD,Nos. 695,698 and 699,s. 695
Citation811 F.2d 136
Parties, 7 Fed.R.Serv.3d 389, 22 Fed. R. Evid. Serv. 737, 13 Media L. Rep. 2041 Martha von BULOW, by her next friends Alexander AUERSPERG and Annie Laurie Auersperg Kneissl, Plaintiff-Appellee, v. Claus von BULOW, Defendant, Andrea Reynolds, Third Party Witness-Appellant. ockets 86-7962, 86-7982 and 86-7984.
CourtU.S. Court of Appeals — Second Circuit

John S. Siffert, New York City (Patricia McDonagh, Sheila B. Rathbun, Jason G. Luchan, and Lankler Siffert & Wohl, New York City, on the brief), for third party witness-appellant Andrea Reynolds.

Frederic W. Parnon, New York City (Ivan Kline, Melissa A. Cohen, Michael F Armstrong, and Barrett Smith Schapiro Simon & Armstrong, New York City, on the brief), for appellee Martha von Bulow.

Before TIMBERS, MESKILL and KEARSE, Circuit Judges.

TIMBERS, Circuit Judge:

The essential question presented on this appeal from a civil contempt order entered against a witness is whether the contemnor is entitled to claim a journalist's privilege. Under the circumstances of this case, we hold that she is not. Other subordinate questions are presented.

The appeal has its genesis in certain civil litigation commenced by Martha von Bulow by her two children as her next friends (collectively referred to as "appellee") against her husband Claus von Bulow ("von Bulow").

The third party witness appellant Andrea Reynolds ("Reynolds") appeals from the contempt order against her announced from the bench on November 18, 1986 in the Southern District of New York, John M. Walker, District Judge. 1 The contempt order, being a final appealable order, brings up for review two prior production orders entered October 15 and October 28, which, standing alone, of course would not be appealable since they are interlocutory orders.

The October 15 order directed Reynolds to produce certain documents subpoenaed by appellee. 652 F.Supp. 823. Those documents consisted of investigative reports commissioned by Reynolds on the lifestyle of Martha von Bulow's children, notes taken by Reynolds while observing the criminal trial of von Bulow, and the manuscript to date of an unpublished book being written by Reynolds about the events surrounding the von Bulow prosecution. Although Reynolds submitted the investigative reports and the notes to the court in camera, she retained the manuscript. The court held that all of the documents were discoverable and ordered production of them after examining, and rejecting, Reynolds' claim that the documents were protected from discovery by the journalist's privilege. The court also rejected Reynolds' alternative claim that the documents were protected by the attorney-client privilege.

The October 28 order governed the confidentiality of the documents. The order sought to protect the commercial viability to Reynolds of the documents and, accordingly, limited disclosure of the documents to appellee, her next friends and their attorneys for the sole purpose of litigating appellee's action against von Bulow.

The November 18 order held Reynolds in civil contempt of court for her continued refusal to produce the manuscript. The court ordered that Reynolds pay a fine of $500 per day, but stayed payment of the fine pending a determination by our Court of the validity of the contempt order. The court further ruled that it would retain possession of the in camera documents pending that determination.

On appeal, Reynolds argues that the First Amendment protects the subpoenaed documents and hence that she has the right to assert the journalist's privilege as a protective shield. In the alternative, Reynolds argues that she is entitled to assert an attorney-client privilege based upon her status as a "paralegal" for the defense team during the criminal prosecution of von Bulow. On these grounds, Reynolds contends that the district court erred in holding her in contempt. We disagree. We hold that Reynolds is not a member of the class entitled to assert the journalist's privilege. We also hold that an attorney-client privilege is unavailable to her.

We affirm the district court's orders of contempt, production, and confidentiality.

I.

We summarize only those facts believed necessary to an understanding of the issues raised on appeal.

The underlying complaint alleges that von Bulow put appellee into her current state of permanent coma by injecting her surreptitiously with insulin and other drugs. The complaint alleges one federal law claim based on the Racketeering Influenced and Corrupt Organizations Act, 18 U.S.C. Sec. 1961 et seq. (1982) ("RICO") and nine state law claims based on pendent and diversity jurisdiction.

Reynolds is an intimate friend of von Bulow. She was his steady companion during the Rhode Island state criminal proceedings which resulted eventually in his acquittal after a second trial on charges of assault with intent to murder his wife. On May 28, 1986 attorneys for appellee, in preparation for the instant litigation, subpoenaed Reynolds to testify and to produce certain documents at her deposition. Among the documents subpoenaed was "any book being written" about the von Bulow matter.

Reynolds failed to respond to the subpoena. On July 25 the district court ordered appellee to proceed by order to show cause to require Reynolds to show why she should not be held in contempt for her failure to respond to the subpoena and to produce the subpoenaed documents. The order to show cause was signed by the district court on July 30. It was served on Reynolds who responded pro se in a letter to the district court dated August 6. In that letter Reynolds denied the existence of the documents which had been subpoenaed, with one exception. That exception was delineated by Reynolds as "the manuscript of my story of the von Bulow affair". This she declined to produce.

Along with the letter, Reynolds submitted to the court for in camera inspection two investigative reports she had commissioned on the lifestyles of Martha von Bulow's children, stating that she had ordered the reports because "[the children's] credibility was something I had to establish not only for the [von Bulow criminal] case, but also for my own peace of mind."

Reynolds also submitted to the court approximately 51 pages of handwritten notes, explaining that "[h]aving been barred from [the Rhode Island criminal] court [during the von Bulow trial], I watched the trial in one of the generator trucks, involved in satellite communication. During those long hours, I made some notes. (Worthless doodles, I think.)"

On August 19 the district court heard oral argument on the order to show cause. Reynolds appeared pro se. She argued that the production of the manuscript was protected by the evidentiary privilege accorded to journalists. The district court, indicating to Reynolds that it was "bending over backwards because you are not represented by an attorney right now", agreed to permit Reynolds to develop a record to support the claimed privilege by testifying at a deposition. The court urged Reynolds to reconsider her decision to proceed pro se. The court stated, "I think that does place you at a disadvantage in a proceeding like this."

Her deposition was taken on August 27. Reynolds again appeared pro se. She stated that she wished to claim the journalist's privilege along with "any other privilege that exists under the sun." To support her claim to a journalist's privilege, Reynolds produced a press card from Polish Radio and Television issued in 1979. She also asserted that she "was acting as a writer" for the German magazine Stern, that she had "drafted" an article about von Bulow that had appeared in Stern, and that she had supplied a German editor with a "long" article on von Bulow. Further, she stated that the New York Post had issued her a police/press pass for the von Bulow trial. She produced a letter from the former Metropolitan Editor of the Post which stated that he had solicited Reynolds to cover the von Bulow trial for that newspaper. Finally, she produced a telex from a German publishing agency which indicated that Reynolds' "final work" would be serialized by that agency pursuant to an August 1985 agreement.

During the deposition, Reynolds stated that she had never published any writing under her own signature, that the negotiations with the Post had never come to fruition, that the manuscript was not prepared under contract, and that her relationship with the publisher of her proposed book "has nothing to do with my privileges as a journalist". Reynolds declined to make more specific her claim that she had worked as a "paralegal" on the defense team during the von Bulow trial. She also declined to discuss the rationale for her claim to a scholar's privilege, indicating that her understanding of the court's order was that her deposition was to be taken solely on the issue of the journalist's privilege.

A transcript of the deposition, along with subsequent correspondence from Reynolds and appellee's counsel, was submitted to the court. On October 15 the court filed a well reasoned opinion in which it denied Reynolds' claim of a journalist's privilege and ordered production of the in camera documents and the manuscript. The court held that, for protection under the journalist's privilege to be available to a witness, that witness must be involved actively in the gathering and dissemination of news. It held that Reynolds was not so involved. It stated that, although Reynolds claimed to have published an article in Stern, the Stern article in fact identified Reynolds' husband as the author. It observed also that the Post never had published anything written by Reynolds. Finally, the court concluded that, since Reynolds was not a member of the class of potential witnesses to whom the journalist's privilege was available, it...

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