Zerilli v. Smith
| Decision Date | 20 October 1981 |
| Docket Number | 79-2480,Nos. 79-2466,s. 79-2466 |
| Citation | 656 F.2d 705,211 U.S.App.D.C. 116 |
| Parties | , 8 Fed. R. Evid. Serv. 1139, 7 Media L. Rep. 1121 Anthony T. ZERILLI and Michael Polizzi, Appellants, v. William French SMITH, Attorney General of the United States, et al. Anthony J. ZERILLI, Appellant, v. William French SMITH, Attorney General of the United States, et al. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Anthony C. DiGioia, Asst. U. S. Atty., Washington, D. C., with whom Charles F. C. Ruff, U. S. Atty., and John A. Terry and John R. Fisher, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellees.
Before WRIGHT and ROBB, Circuit Judges, and PENN, * District Judge.
Opinion for the court filed by Circuit Judge J. SKELLY WRIGHT.
These cases were consolidated for hearing. 1 We shall, however, state our reasons for their disposition separately and issue a separate judgment in each case.
Appellants Anthony T. Zerilli and Michael Polizzi brought an action under the Privacy Act 2 and the Fourth Amendment against the Attorney General of the United States, the Director of the Federal Bureau of Investigation, and the Department of Justice. They contended that employees of the Department of Justice violated their constitutional and statutory rights by leaking to the Detroit News transcripts of conversations in which appellants discussed various illegal activities. These transcripts had originally been obtained by the Justice Department as the result of electronic surveillance conducted by the Federal Bureau of Investigation. According to appellants, a series of articles on organized crime written by reporter Seth Kantor and other members of the Detroit News staff were based on information obtained from the transcripts. 3 When appellants deposed
Kantor he refused to reveal his sources, relying on a qualified reporter's privilege under the First Amendment. Appellants moved to compel discovery. 4 After denying appellants' motion, 5 the District Court granted a Government motion for summary judgment. 6 In this appeal Zerilli and Polizzi challenge both of these decisions. Because we believe that in this case the First Amendment interest in protecting a news reporter's sources outweighs the interest in compelled disclosure, we affirm the District Court's decision to deny the motion to compel discovery. We also affirm the decision to grant summary judgment in favor of the Government.
During criminal proceedings brought against Zerilli and Polizzi in the District Court for the Southern District of California in 1971, 7 the Government revealed that the FBI had planted a listening device on the premises of the Home Juice Company in Detroit, Michigan and that as a result of this electronic surveillance it possessed logs of conversations in which appellants discussed various illegal activities. 8 The parties stipulated that the listening device had been installed without a warrant in violation of the Fourth Amendment. 9 Subsequently, in a separate proceeding, United States District Judge Gus J. Solomon ordered that the logs be sealed, forbidding their dissemination to the public. 10 Before they were sealed, however, appellants and their attorneys were allowed to review the logs. 11 The documents remain under seal at the Department of Justice, the only government agency possessing either the original logs or copies of the transcripts.
In 1976 the Detroit News published a series of articles entitled "Inside the Mafia" which discussed organized crime in Detroit. 12 The articles identified appellant Zerilli as the Detroit mob leader and appellant Polizzi as a mob cohort. 13 They purported to be based on the logs made by the FBI and contained many references to the logs. 14 In March 1977 appellants filed their Privacy Act suit. They alleged that the logs were in appellees' exclusive possession Shortly after filing their suit appellants propounded a set of seven interrogatories upon the Government. 19 In one of these interrogatories they asked for a description of an investigation the Assistant Attorney General in charge of the Criminal Division had conducted to determine whether any Department of Justice employees were responsible for the leak. 20 Appellees responded that the investigation had not uncovered any evidence suggesting that a Justice Department employee had disclosed the transcripts to the media. 21 Several memoranda concerning the investigation were also provided. 22 In response to other interrogatories appellees stated that to their knowledge no Government employee had disclosed the logs to the Detroit News. 23 They also provided the names of the four Justice Department employees who knew most about the logs. 24 Previously, during the 1971 criminal trial, the Department of Justice had provided appellants with a list of all Government officials who had access to the wiretap logs. 25
and that employees of appellees had violated their statutory rights by leaking them to the Detroit News. They sought two million dollars each as damages. 15 Later they filed an amended complaint seeking damages in a Bivens-type action, 16 alleging that appellees had violated their Fourth Amendment rights. 17 They stipulated that they were not seeking damages for the unlawful bugging of the Home Juice Company. Rather, they stated that their Fourth Amendment claim was based on the subsequent disclosure of the logs to the press. 18
Appellants did not seek further discovery from the Government; in particular, although they might have uncovered valuable information by questioning the employees who had access to the logs, they did not depose any of these individuals. In fact, in a subsequent pleading appellants stated:
The Department of Justice has certified to the Court that as a result of an internal investigation no individual connected with the Department of Justice released these documents to the Detroit News or its staff members. Counsel for the plaintiffs accept th(is) representation * * * without deeming it necessary to depose any individual employee of the Department of Justice or the F.B.I.
Reply to Opposition to Compel Discovery, Record in No. 79-2466, Document 33 at 2-3. Appellants later claimed that they accepted the Justice Department's representations The set of seven interrogatories propounded on the Justice Department was the only discovery taken by appellants within the time originally allotted for discovery. After the time allotted had expired appellants requested and obtained special leave to take the deposition of Seth Kantor, one of the authors of the Detroit News series on organized crime. 27 At the deposition appellants asked a number of questions designed to elicit Kantor's sources. Kantor refused to answer, relying on a First Amendment privilege not to disclose information tending to identify confidential sources. 28 Appellants then moved to compel discovery under Rule 37, Fed.R.Civ.P., claiming that their rights as civil litigants superseded the reporter's qualified First Amendment privilege. 29 In a careful opinion the District Court denied this motion, stating that it was unable to find a compelling interest sufficient to warrant subordination of First Amendment values. The court emphasized appellants' failure to exhaust alternative sources of information. Zerilli v. Bell, 458 F.Supp. 26 (D.D.C.1978).
not because they actually conceded the truth of those representations, but for tactical reasons only. According to appellants, they wished to depose the Detroit News reporters regarding the identity of the individuals who had released the wiretap logs. But they believed that before they could overcome the reporters' qualified First Amendment privilege not to disclose confidential news sources they would be required to show that they had exhausted any alternative sources of information. They hoped their statement accepting the Justice Department's representations would satisfy this requirement. 26 During oral argument on appeal counsel for Zerilli and Polizzi also claimed that they chose not to question the Government employees because depositions would have been time-consuming and costly and would probably have been unproductive.
Appellees filed a motion for summary judgment with respect to the Privacy Act claim in September 1978, arguing that there was no genuine dispute as to any material fact. As support for their motion they cited: (1) their answers to appellants' interrogatories in which they stated that no Justice Department employee had released the logs to the Detroit News; (2) appellants' concession that these representations were true; and (3) appellants' answers to interrogatories propounded by the Government, in which they admitted that the wiretap logs had not been in the exclusive possession of the Justice Department. 30 In their opposition to the motion for summary judgment appellants contended that there was a genuine issue concerning whether appellees had leaked the logs to the Detroit News. 31 They pointed to the affidavits of their attorneys in the 1971 criminal trial, in which the attorneys stated that they had not released the logs. 32 As for the statement in After refusing to allow further discovery, the District Court granted the Government motion for summary judgment with respect to the Privacy Act claim. The court stated:
which they accepted the representations of the Government regarding its internal investigation, it was at this stage of the litigation that appellants first argued that they made this concession only so they could claim they had exhausted alternative sources before seeking to depose Seth Kantor. 33 Finally, appellants argued that at the very least, rather than granting the motion for summary...
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