Weinberger v. Maplewood Review, C7-01-2021.

• Decision Date: 18 June 2002
• Docket Number: No. C7-01-2021.,C7-01-2021.
• Citation: Weinberger v. Maplewood Review, 648 N.W.2d 249 (Minn. App. 2002)
• Parties: Richard WEINBERGER, Respondent, and Independent School District No. 622, et al., Defendants, v. MAPLEWOOD REVIEW, et al., Appellants.
• Court: Minnesota Court of Appeals

648 N.W.2d 249

Richard WEINBERGER, Respondent, andIndependent School District No. 622, et al., Defendants, v.MAPLEWOOD REVIEW, et al., Appellants.

No. C7-01-2021.

Court of Appeals of Minnesota.

June 18, 2002.

Stephen W. Cooper, Stacey R. Everson, The Cooper Law Firm, Chartered, Minneapolis, for respondent.

Mark R. Anfinson, Minneapolis, for appellant.

Considered and decided by STONEBURNER, Presiding Judge, HARTEN, Judge, and ANDERSON, Judge.

OPINION

STONEBURNER, Judge.

AppellantWally Wakefield, a reporter, appeals from the district court's order compelling him to disclose, pursuant to Minn.Stat. § 595.025(defamation exception to the Free Flow of Information Act), which defendant, if any, is the source of statements in a news article.Because respondentRichard Weinberger has failed to establish that the exception applies, we reverse.

FACTS

The Maplewood Review employed Wally Wakefield as a reporter.Wakefield gathered information for an article authored by co-reporter Jason Tarasek concerning the school district's decision not to retain Weinberger as the head football coach of Tartan High School.The article appeared in the Maplewood Review in January 1997 and contained quotations from, and information attributed to, named and unnamed sources.

Weinberger sued the school district and four school district employees (defendants) alleging breach of contract, tortious interference with a business advantage, defamation, tortious interference with a business opportunity, negligence, and intentional and negligent infliction of emotional distress.The complaint provides:

STATEMENT OF FACTS

* * * * * *

25.On or about December 22, 1996Defendants requested that [Weinberger] resign as head football coach.[Weinberger] refused to resign.

26.Around the same time a series of newspaper articles¹ were published stating false and malicious comments regarding [Weinberger].

27.On information and belief, Defendants provided false and malicious information for the newspaper articles about [Weinberger].

* * * * * *

COUNT THREE DEFAMATION

* * * * * *

52.[Defendants] have published false, malicious and hurtful statements about [Weinberger].

53.Many of Defendants' statements constituted defamation per se because they specifically disparage [Weinberger] about his profession.

54.Defendants' statements were intended to and did have the effect of harming [Weinberger's] business and personal reputation by placing [Weinberger] in a false light.

55.Plaintiff has been forced to republish the false and hurtful statements and the reason he was terminated to potential employers.

56.As a direct and proximate result of Defendants' false and misleading statements, [Weinberger] has suffered loss of job opportunities, damage to personal and professional reputation, emotional distress, loss of past, present and future income and benefits.

The article is not quoted in, or attached to, the complaint, and the complaint does not set out any specific statements from the article that Weinberger alleges to be defamatory.

In their depositions, three defendants testified that they spoke to a reporter.Defendant Hickey testified that he was the "former coach" quoted in the article as saying:

[G]ood things happened during [Weinberger's] tenure as Tartan football coach.But this whole situation has put him in somewhat of a desperate situation.* * * There are a lot of people sitting here waiting for the other shoe to drop.

Defendant Klingsporn testified that the following statement could have been interpreted based on what he said:

According to sources, the coach is known for his temper, inappropriate comments and foul language, which people claim he uses to intimidate players.

Defendant Lipetzky testified that he made only the statements that were attributed to him in the article.Defendants moved for summary judgment on all claims.

Before Weinberger filed his memorandum opposing the motion for summary judgmenthe served a subpoena duces tecum on Wakefield.The subpoena ordered Wakefield to appear for a deposition and to bring "[a]ny and all documents, including but not limited to notes and recordings, concerning or related to [Weinberger] in your possession and/or in the possession of the Maplewood Review."When informed that Wakefield did not intend to respond, Weinberger moved to compel Wakefield's deposition.

Wakefield² opposed enforcement of the subpoena.The district court denied Weinberger's motion to compel.Weinberger brought a second motion to compel Wakefield's deposition.While this motion was pending, Weinberger filed his memorandum opposing defendants' motion for summary judgment.In that memorandum Weinberger alleges that defendants"fail to identify accurately all of the statements in the [article] that are attributable to them."Weinberger says he"will await the Court's ruling with respect to [Weinberger's]Motion to Compel disclosure of the sources" of the remaining statements.

The district court granted partial summary judgment to defendants, dismissing Weinberger's claims for breach of contract and negligence.The district court did not grant summary judgment on Weinberger's defamation claims, stating that affidavits and deposition testimony contain "many statements alleged to have been made by defendants which, if made and if untrue, may be found by the jury to constitute defamation."

Weinberger amended his motion to compel to request that Wakefield be compelled to identify the source of six specific segments from the article.This is the first identification by Weinberger of the specific statements in the articlehe claims to be defamatory.

In support of his motion to compel disclosure, Weinberger argued that although defendants took responsibility for some of the statements in the article:

[A]ll stop short of admitting all the statements.Instead, the deponents have testified that they are not sure of what they said, or forgot what they said to the reporters.

Weinberger admitted that he is unable to identify the source of several of the "most damaging statements" in the article but asserted that he has "reasonable cause to believe that these statements were, in fact, made by school district officials."

The district court granted Weinberger's motion to compel Wakefield to identify the source of the six specified segments.The Maplewood Review and Wakefield appealed.We reversed and remanded to the district court because the order lacked findings of fact required by the statute and case law.We directed the district court on remand to address and balance the factors set out in Bauer v. Gannett Co., Inc. (KARE 11),557 N.W.2d 608, 611-12(Minn.App.1997).SeeWeinberger v. Indep. Sch. Dist. No. 622, No. C5-00-1830, 2001 WL 741313, at *2(Minn.App.June 22, 2001).

After rehearing, the district court ordered Wakefield to identify by written interrogatory "which defendant, if any, is the original source for each of the following statements" from the article:³

a. But now school officials say they've had enough of Weinberger and his behavior.According to sources, the coach is known for his temper, inappropriate comments and foul language, which people claim he uses to intimidate players.⁴

b. One source, however, pointed to an incident at Park High School in Cottage Grove as "the straw that broke the camel's back."

c. Weinberger reportedly gave a severe tongue-lashing to several of his players at halftime during Tartan's loss, which knocked the team out of the playoffs.

d. "His language has been awful," one person said on the condition of anonymity.

e. "People have talked to him numerous times.Both his superiors and peers."

f. Weinberger's cursing and his habit of berating his players is allegedly not anything new.For a while, after he was reprimanded, he improved his behavior, according to observers.However, several people said Weinberger eventually sunk back into his old habits.The problem continued to linger because players, parents and even coaches were afraid to speak up—fearing that Weinberger would retaliate.

g. "First ... when there is an intimidating situation, kids have a tendency not to say nothing," a source said."Second, some parents are apprehensive about saying things because it will be held against their son or daughter."

h. In the past few weeks several assistant coaches reportedly gave notice to Tartan officials that they would not return to coach under Weinberger.

i. After Tartan officials repeatedly warned Weinberger to change his behavior, their patience apparently has run out.

j. "We all have to make changes and get better as a person," a source said."He(Weinberger) can't admit that there is anything wrong."

The district court's analysis of the Bauer factors is contained in the memorandum attached to its order.This appeal followed.

ISSUES

I.What standard of review applies to a district court's order compelling a newspaper reporter to disclose confidential sources pursuant to Minn.Stat. § 595.025?

II.Has Weinberger made a prima facie showing that the statements alleged to be defamatory are false and made with actual malice?

III.Has Weinberger established, given the nature of this action and the fact that the reporter is not a party, the requisite relevance and need to compel, pursuant to Minn.Stat. § 595.025, disclosure of which defendant, if any, is the confidential source of statements that appeared in a news article?

ANALYSIS

I.The Standard of Review

The parties dispute what standard of review applies to our review of the district court's order compelling Wakefield to identify which defendant, if any, made certain statements that appeared in the article.A motion to compel discovery is generally committed to the discretion of the district court and the scope of review is limited to a determination of whether the district court abused its discretion in entering the challenged order.Shetka v. Kueppers, Kueppers, Von Feldt & Salmen,454 N.W.2d 916, 921(Minn.1990)...