Opinion
Civil Action No. C-1-99-793
August 7, 2001
ORDER: (1) GRANTING PLAINTIFF'S MOTION TO AMEND THE EXISTING CALENDAR (DOC. 46); (2) EXTENDING NUNC PRO TUNC THE DISCOVERY DEADLINE TO SEPTEMBER 12, 2001, AND THE DISPOSITIVE MOTIONS DEADLINE TO OCTOBER 12, 2001; (3) GRANTING IN PART, AND DENYING IN PART, THE THREE MOTIONS TO COMPEL DEPONENTS WELLS, McWHIRTER AND GALLAGHER TO ANSWER CERTAIN DEPOSITION QUESTIONS (DOCS. 42, 52, 55); AND (4) DENYING PLAINTIFF'S MOTION TO COMPEL PRODUCTION OF DEFENDANT'S INDEXED LIST OF MATERIALS PROVIDED TO THE SPECIAL PROSECUTOR (DOC. 50)
This is, inter alia, a breach of contract action brought by George Ventura, a confidential news source who had contact with Cincinnati Enquirer reporters Cameron McWhirter and Michael Gallagher regarding a series of stories the Enquirer was researching and planning to publish on the Cincinnati-based banana producer Chiquita Brands International, Inc. One of the articles was published by the Enquirer in May 1998 before it became known that some of the newspaper's information had been illegally procured from Chiquita's confidential, company-wide phone voicemail system. As a result of that illegal conduct, Chiquita contemplated suit against the Enquirer and/or its parent, the Gannett Corporation; that potential litigation was settled; the Enquirer renounced and refracted the published article; the remaining articles were never published; and Gallagher was fired for misconduct.
McWhirter was never accused of wrongdoing with respect to the Chiquita voicemail system. Gallagher, on the other hand, was prosecuted in state court, where he pled guilty to two felony counts of unlawful interception of communications. See Nicholas Bender, Damages Report: After the Chiquita Story, COLUM. JOURNALISM REV., May 1, 2001, at 41, available in 2001 WL 13152009.
Ultimately, it was revealed that some or all of the voicemail information had come from Ventura, an attorney who was then employed in-house by Chiquita. Ventura pled guilty in state court to four misdemeanor counts; thereafter, he brought this civil action against the Enquirer and Gannett claiming, inter alia, that those entities breached their oral agreement not to reveal his identity as a confidential source. (The Enquirer and Gannett deny these allegations.) As Ventura now lives in Utah, he premised his complaint upon the Court's diversity jurisdiction. Accordingly, Ohio substantive law controls. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938).
For a more detailed factual understanding of the background to this case, see Bender, supra note 1; Dan Horn, Ex-Chiquita Lawyer Says Being Informant Was Costly; Ventura Blames Former Reporter, Enquirer, Gannett, CINCINNATI ENQUIRER, Jan. 6, 2000, Metro section, available in 2000 WL 10060015; An Apology to Chiquita; Enquirer: Voice Mad Tapes Were Taken Illegally, CINCINNATI ENQUIRER, June 28, 1998, News section, available in 1998 WL 3777110; Douglas Frantz, For a Reporter and a Source, Echoes of a Broken Promise, N.Y. TIMES, Apr. 11, 1999, section 4, at 1, available in 1999 WL 9880059.
I.
On July 9, 2001, the Court heard oral argument relative to five discovery motions pending in this matter, each of which was filed by Ventura. In the five motions, Ventura seeks to: (1) compel David Wells — an Enquirer editor who supervised McWhirter and Gallagher — to answer certain deposition questions (doc. 42); (2) compel McWhirter to answer certain deposition questions (doc. 52); (3) compel Gallagher to answer certain deposition questions (doc. 55); (4) compel the Enquirer and Gannett to produce an indexed list of the materials they provided to the special prosecutor who prosecuted Ventura (doc. 50); and (5) amend the existing Calendar Order (doc. 46). All five motions are opposed by defendants.
The three deponents were each represented by counsel who presented oral argument at the July 9th hearing.
II.
The Court first addresses the Calendar Order issue.Discovery in this matter was initially scheduled to end on August 31, 2000. See doc. 5. Thereafter, the parties jointly moved to extend the discovery deadline, see doc. 19, a request which the Court granted, see doc. 20. The discovery deadline was thus extended to December 1, 2000. Doc. 20. Just prior to that deadline, Ventura moved to extend the deadline a second time, see doc. 31, a request which the Court again granted, see doc. 35. The discovery deadline was thus extended to April 30, 2001. Doc. 35.
Ten days prior to that deadline, Ventura timely filed the instant motion concerning the Wells deposition (doc. 42). On the last day of the deadline, i.e., April 30th, Ventura filed a motion to extend the Calendar yet an additional time. Thereafter, without having secured a ruling on the request for additional discovery time, Ventura filed three of the motions to compel at issue, none of which were accompanied by a request for leave to file beyond the deadline. Document fifty (concerning the special prosecutor) was filed on May 10, 2001, i.e., ten days beyond the April 30th deadline; document fifty-two (concerning McWhirter) was filed on May 14, 2001, fourteen days beyond the deadline; and document fifty-five (concerning Gallagher) was filed on May 16, 2001, sixteen days beyond the deadline. Accordingly, the Court has authority to deny all of these latter motions to compel on timeliness grounds, even if the discovery deadline is now extended. The Court will not so act, however, because it seeks — in the interest of justice — to reach the merits of the parties' discovery disputes.
The Court thus GRANTS Ventura's motion to amend the Calendar, and establishes nunc pro tunc a new discovery deadline of September 12, 2001, and a new dispositive motions deadline of October 12, 2001. (As Judge Weber recently clarified in document sixty-six, trial shall occur in January 2002.) The three discovery motions — submitted after the old April 30th discovery deadline, but before the new September 12th deadline — will therefore each be deemed timely filed.
III.
The Court next turns to the merits of Ventura's motions concerning the Wells, McWhirter and Gallagher depositions. In those depositions, the deponents were directed, by their counsel, not to answer certain questions. A witness may be so instructed, under Federal Rule of Civil Procedure 30(d)(1), "only when [it is] necessary to preserve a privilege. . . ." The deponents assert two privileges here: (1) the reporter's shield law privilege codified in Ohio Rev. Code § 2379.12; and (2) the attorney-client privilege.
In his deposition, Wells, citing the reporter's shield law privilege, refused to answer the following questions:
1. Was there a policy or practice followed in connection with your dealings with Mr. Gallagher, with respect to the disclosure of the identity of confidential news sources to the editor with whom Mr. Gallagher was working on a particular project? In other words, I'm not looking to find out if he would disclose it outside the newspaper, but I want to know whether he disclosed it to an editor working for the paper. With respect to Mr. Gallagher's stories that he was preparing while you were the local news editor?
2. Was there a policy or practice which you followed, when dealing with Mr. Gallagher on stories he was working on when news sources were involved, who requested confidentiality, did he, pursuant to a policy or practice, disclose the identity of that news source to you or to some other editor?
3. Was there ever a time when Mr. Gallagher came to you on any story he was working on and said, "David or Mr. Wells, I'm working on this story. . . . There is a fellow or woman with whom I can get important information but, in order to get that, I have to promise confidentiality. Do I have your authority, or can you give me some direction?" Did he ever come to you with that kind of question?
4. Did you know that Mr. Gallagher was using confidential news sources for the preparation of that article [ i.e., the Chiquita story]?
5. Did Mr. Gallagher ever provide to you the names or identities of the sources he said he was using in connection with the Chiquita story?
6. Did you ever hear the name George Ventura in connection with the Chiquita story?
Doc. 42 at 4. McWhirter, also citing the reporter's shield law privilege, refused to answer the following questions:
1. Did you have any conversations with an individual who identified himself as George Ventura?
2. Do you have any notes which contained the identity of George Ventura?
3. Did you ever discuss with Mr. Wells or [with Enquirer editor] Mr. Beaupre any conversations you had with Mr. Ventura?
4. Do you have any recollection of having any e-mail communications with an individual who identified himself as George Ventura?
5. Was the transcript that you saw [of your phone conversation with Ventura] an accurate reflection of a conversation you had?
6. Now, in the context of any communications you had with one of your confidential sources, was the . . . was there ever any discussion between you and the confidential source as to whether or not it was legal or illegal to access voicemails?
7. Did any source ever ask you to find out whether accessing voice messages was legal or illegal?
Doc. 52 at 3-4. On attorney-client privilege grounds, McWhirter refused to answer the following questions:
1. When you say the lawyers were vetting material, what do you mean by that?
2. Did you receive any direction from the attorneys as to what to do or not to do with any tape recordings?
3. To your knowledge, did any of the attorneys employed by Gannett or the Enquirer know the identities of the confidential sources with whom you were dealing?
4. Did you have conversations with your editors concerning their anticipation of the lawsuit?
5. You said you saw two legal decisions, but you didn't read them. Is that correct? What was the context in which you saw them but did not read them?Id. at 9-10. Citing the attorney-client privilege (but not the reporter's shield law privilege), Gallagher refused to answer the following questions in his deposition.
1. When you said you were instructed to retrieve information, who instructed you?
2. Did you receive any specific directive or instructions that you were to take certain steps to preserve and protect records that might identify sources used in the story?
3. In or about April 1998, at a meeting attended by yourself and editors and lawyers, did you make reference to a stash of materials you had at your residence?
4. Did editors or anyone else affiliated with the Enquirer ever direct you to retrieve the items in Michigan and return them to the office?
5. Did you have any specific discussions about e-mail with Cincinnati editors or anyone else at the Enquirer?
6. Did you receive any directive from anyone to find and then destroy any e-mail messages?
7. Did you make statements in your proffer agreement concerning conversations with editors and attorneys?
8. Before you left the employ of the Enquirer, to your knowledge, what individuals had heard the name "George Ventura"?
Doc. 55 at 3.
A. Reporter's Shield Law Privilege
The shield law provides:
No person engaged in the work of, or connected with, or employed by any newspaper or any press association for the purpose of gathering, procuring, compiling, editing, disseminating, or publishing news shall be required to disclose the source of any information procured or obtained by such person in the course of his employment, in any legal proceeding, trial, or investigation before any court, grand jury, petit jury, or any officer thereof, before the presiding officer of any tribunal, or his agent, or before any commission, department, division, or bureau of this state, or before any county or municipal body, officer or committee thereof
As explained above, Wells and McWhirter assert this privilege, but Gallagher does not. During the events in question in 1998, and at the time of their respective depositions, Wells and McWhirter were, as the shield law directs, "engaged in the work of;, or connected with, or employed by any newspaper or any press association for the purpose of gathering, procuring, compiling, editing, disseminating, or publishing news. . . ." Accordingly, the shield law privilege applies to both Wells (an Enquirer editor) and McWhirter (an Enquirer reporter).
The privilege, by its terms, prevents such individuals from being required to disclose " the source of any information procured or obtained by such person in the course of his employment. . . ." Ohio Rev. Code § 2739.12 (emphasis added). See In re Apr. 7, 1999 Grand Jury Proceedings, 140 Ohio App.3d 755, 760, 749 N.E.2d 325, 329 (2000) (noting that the privilege "shields . . . newspersons from forced disclosure of the identity of the source of information; and that a newsperson may refuse to answer questions whose answers "may have necessarily made the identity of the source of confidential information more probable") (emphasis and brackets deleted).
Ventura argues that the privilege cannot apply here because his identity, as the one and only confidential source, has already been revealed (and thus there is nothing to shield). This argument has two flaws. First, Ventura assumes — perhaps correctly, perhaps not — that he was the only confidential source used for the Chiquita story. Ventura does not know with certainty that he was the only confidential source, and defendants will neither confirm nor deny his assumption. Second, even if Ventura were the only confidential source, the reporter's shield law privilege is not his to waive; the privilege can only be waived by the newsperson. As Judge Tracey held, during Ventura's state prosecution, "the one who holds the privilege is the only one who can determine to release it or to disclose the communication. It is the client, and not the attorney, who can waive the attorney-client privilege; the patient and not the doctor, who can relinquish privileged communications with a physician (for example, by signing a release of medical records or by suing the doctor for medical malpractice); and the penitent, not his or her priest" State v. Ventura, 101 Ohio Misc.2d 15, 19, 720 N.E.2d 1024, 1027 (Ct. C.P. 1999). Neither Wells nor McWhirter has waived the privilege.
Ventura also argues that, because this is a federal case, the state-law shield law privilege cannot apply. This is a simple issue to resolve, for Federal Rule of Evidence 501 authorizes the use of state-law privileges in diversity cases such as this.
The Rule provides, in relevant part, that "in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the privilege of a witness, person, government, State, or political subdivision thereof shall be determined in accordance with State law." Fed.R.Evid. 501.
Having found that the privilege applies to this case, and that it has not been waived, the Court turns to an analysis of the specific deposition questions which Wells and McWhirter refused to answer. Regarding Wells, deposition questions one, two, five and six are impermissible, and need not be answered, because they seek to have him disclose the "source of any information" or make the identity of a confidential source "more probable." Question one, for example, asks whether Gallagher disclosed his confidential source "to an editor working for the paper." Question two concerns whether Gallagher disclosed "the identity of that [confidential] news source to you." Question five addresses the "names or identities of [Gallagher's] sources." Question six concerns "the name George Ventura in connection with the Chiquita story." Questions three and four, on the other hand, are permissible, and must be answered by Wells, because these more generic questions are not likely to reveal confidential source information.
For similar reasons, the Court finds that McWhirter need not answer the first five questions posed to him because each of those questions concerns Ventura's identity. The last two questions do not, and therefore must be answered.
B. Attorney-Client Privilege
The attorney-client privilege arises here because McWhirter and Gallagher consulted with, and received advice from, Gannett's in-house counsel prior to publication of the Chiquita story. As the Ohio Court of Appeals has explained:
Generally, communications between an attorney and his or her client are privileged. See [Ohio Rev. Code §] 2317.02(A)
* * *
In Upjohn Co. v. United States (1981), 449 U.S. 383, 66 L.Ed.2d 584, the United States Supreme Court addressed the attorney-client privilege as it applies to a corporate client. The court found that the attorney-client privilege extended to communications made by employees of a corporate client to a corporation's counsel under certain circumstances. Id. at 390, 66 L.Ed.2d at 591. In determining that the privilege applied in Upjohn, the United States Supreme Court focused on the fact that the communications were made by the employees to corporate counsel, who was acting as such, at the direction of corporate supervisors in order to secure legal advice. Id. at 394, 66 L.Ed.2d at 594. The court further considered that "[t]he communications concerned matters within the scope of the employees' corporate duties, and the employees themselves were sufficiently aware that they were being questioned in order that the corporation could obtain legal advice." Id. While relying on these factors in determining whether the privilege applied in Upjohn, the court admonished that the application of the corporate attorney-client privilege must be determined on a "`case-by-case'" basis. Id. at 396, 66 L.Ed.2d at 596.
In addition, Upjohn rejected the proposition that the privilege only applied to high level employees or "control group" and found that the attorney-client privilege in the corporate context applied to all employees regardless of "level[.]" Id. at 391, 66 L.Ed.2d at 592. Furthermore, it is important to note that "[t]he privilege only protects disclosure of communications; it does not protect disclosure of the underlying facts by those who communicated with the attorney[.]" Id. at 395, 66 L.Ed.2d at 595.Bennett v. Roadway Express, Inc., No. C.A. 20317, 2001 WL 866261, at *10-11 (Ohio Ct.App. Aug. 1, 2001). In light of Bennett and Upjohn, the Court finds that the attorney-client privilege applies to the legal communications that McWhirter and Gallagher held with in-house counsel. The Court rejects Ventura's suggestion that the "crime fraud exception" to the attorney-client privilege bars application of the privilege here, given that no evidence before the Court suggests that the pre-publication communications at issue — between the two reporters and their counsel — were undertaken for the purpose of committing or continuing Gallagher's crimes. See Thut v. Thut, No. 2000-G-2281, 2001 WL 369674, at *4 (Ohio Ct.App. Apr. 13. 2001); State ex rel. Nix v. Cleveland, 83 Ohio St.3d 379, 383, 700 N.E.2d 12, 16 (1998) ( per curiam).
Turning to the deposition questions asked of McWhirter, which he only challenges on attorney-client privilege grounds, the Court finds question two objectionable because it concerns the legal advice McWhirter supposedly received from counsel. Questions one, three, four and five raise no attorney-client privilege issues, and must be answered by McWhirter.
With respect to the Gallagher questions, the Court finds privileged questions three and seven, as both questions concern meetings during which advice was given to Gallagher by counsel. Questions one, two, four, five, six and eight raise no attorney-client concerns, and must be answered.
C. Conclusion
In light of the above, and because Wells, McWhirter and Gallagher must answer some, but not all, of the deposition questions they challenged in their respective motions, the three motions to compel are EACH GRANTED IN PART AND DENIED IN PART.
IV.
The Court last addresses Ventura's motion concerning the special prosecutor. In the motion, Ventura seeks to compel the production of an indexed list — a list that counsel for the Enquirer and Gannett created in the process of compiling the documents which were subpoenaed by the special prosecutor investigating Ventura. Following oral argument, the indexed list was produced to the Court, at its request for an in camera review. Given that: (1) the indexed list was prepared by counsel for its clients; (2) the list was not seen by the special prosecutor; (3) the list does not disclose the subject matter of the documents produced to the special prosecutor; and (4) defendants have already provided Ventura with an opportunity to seethe documents which they provided to the special prosecutor, see doc. 63 at 1-2, the motion is DENIED.
IT IS SO ORDERED.