Wilkins v. Kalla
| Decision Date | 25 February 1983 |
| Citation | 459 N.Y.S.2d 985,118 Misc.2d 34 |
| Parties | , 9 Media L. Rep. 1334 Nat T. WILKINS, Plaintiff, v. Paul J. KALLA, et al., Defendants. |
| Court | New York Supreme Court |
Ronald E. Guttman and Douglas P. Jacobs, New York City, for Movant CBS, inc.
Sullivan & Cromwell, New York City (John L. Warden, and Michael Barron, New York City, of counsel), for West Point Pepperell, etc. in opposition to motion to quash.
In connection with this motion to quash subpoenas which attempt to elicit information concerning the background of a particular news report broadcast by CBS on its news program "60 Minutes", important issues relating to the (1) applicability of the New York Shield Law (N.Y.Civ.Rights Law sec. 79-h(b) and (2) privilege extended to professional journalists and the compelling interest of First Amendment rights in Civil litigation must be examined.
The defendants attempt to compel the production of outtakes, notes and other non-broadcast materials relating to a 60 Minutes news report entitled "Brown Lung" broadcast on February 4, 1979. The defendants also seek to take the depositions of movant Harry Moses, the producer of 60 Minutes and Dan Rather who was the correspondent.
The plaintiff, Nat Wilkins, is a former cotton mill worker who alleges that he contracted byssinosis ("brown lung disease") as a result of the negligence and malfeasance of his former employer, defendant West Point Pepperell, and various individual defendants, including several company doctors.
The defendants say that they are entitled to discovery from CBS of unpublished information assembled by 60 Minutes in the preparation of this news report. I hold that the defendant's contention is wrong.
First, courts have frequently noted the existence of a qualified privilege that may be invoked by journalists, Silkwood v. Kerr-McGee Corp., 563 F.2d 433, 436-438 (10th Cir.1977), who have been served with subpoenas directing them to disclose information acquired in the course of journalistic investigations. This privilege flows from the First Amendment's guarantee that "Congress shall make no law abridging the freedom of speech, or of the press," and the recognition that compelling disclosure of information obtained by a reporter in news gathering will have a "chilling effect" upon his functioning as a reporter regarding the "flow of information to the general public in violation of the First and Fourteenth Amendments." Loadholtz v. Fields, 389 F.Supp. 1299, 1300 (M.D.Fla.1975).
In this case, the party requesting disclosure is not trying to uncover the identify of a confidential source. But, the existence of a reporter's privilege under the First Amendment does not turn upon this fact. It is clear that the subpoenas in question seek to exploit certain professional journalists as unwilling investigators and seriously interfere with and undermine their ability to gather news. It thereby has a "chilling effect" upon the exercise of First Amendment rights. This Court will not lend itself to such exploitation.
Mackay v. Driscoll, 3 Media L.Rptr. 2582 (Sup.Ct. Suffolk Co., June 6, 1978); See also, United States v. Cuthbertson, 630 F.2d 139 (3d Cir.1980), cert. denied, 449 U.S. 1126, 101 S.Ct. 945, 67 L.Ed.2d 113 (1981).
To determine whether a journalist may assert a privilege to avoid testifying in civil litigation, the courts have expressly employed a "balancing test" similar to that articulated by the Supreme Court in Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972). At the same time, the absence, in civil litigation, of any state interest comparable to that involving criminal law enforcement at stake in Branzburg, has weighed heavi against those parties seeking to compel journalists to disclose information gathered in the course of journalistic investigations.
When a privilege, such as a reporter's privilege, "is grounded in constitutional policy, a 'demonstrated specific need for evidence' must be shown before it can be overcome." Riley v. City of Chester, 612 F.2d 708, 716 (3d Cir.1979), citing United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974). Hence in determining the applicability of a reporter's privilege in a civil case, the courts have looked to the following factors: (1) the nature of the case at bar; (2) the relevance and materiality of the information sought to be adduced; (3) whether the information sought goes to the heart of, is crucial to, the claims made by the discovering party and the issues framed by the pleadings; and (4) the availability of the information from other sources. Gulliver's Periodicals, Ltd. v. Chas. Levy Circulating Co., 455 F.Supp....
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