NEW YORK TIMES COMPANY v. SORTOMME

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Court of Appeal, Second District, Division 6, California.

The NEW YORK TIMES COMPANY, Petitioner, v. SUPERIOR COURT of the State of California for the County of Santa Barbara, Respondent. Jerome SORTOMME, et al., Real Parties in Interest.

No. B032449.

Decided: June 24, 1988

Price, Postel & Parma and Gary R. Ricks, Judith A. Brown, Santa Barbara, Kenneth A. Richieri, New York City, for petitioner. No appearance for respondent. Herzfeld & Rubin and Michael A. Zuk, Roy D. Goldstein, Seymour W. Croft, Los Angeles, for real party in interest Volkswagen of America, Inc. No appearance for real parties in interest, Jerome Sortomme, Joyce Sortomme, Masterson Motors, The State of California.

OPINION AND ORDER

 A photographer for a newspaper takes photographs of an automobile accident.   A personal injury lawsuit arises from the accident.   May the newspaper, not a party to the lawsuit, be compelled to submit its photographs to the court for an in camera inspection?   No, the news gatherer's privilege gives absolute protection to a journalist in a civil lawsuit in which the journalist is not a party.   We therefore grant a writ of mandate.

FACTS

The New York Times, petitioner, is the owner of the Santa Barbara News–Press.   On June 27, 1984, a reporter for the News–Press, acting within the scope of his employment, took photographs of an automobile accident.   One of the parties to the accident brought a products liability lawsuit against Volkswagen of America, Inc., real party.

On December 30, 1986, Volkswagen sought production of “all photographs, negatives, notes, letters” in the possession of News–Press relating to the accident.   News–Press sought a protective order.   On February 17, 1987, the superior court quashed the subpoena.   Nevertheless, the court ordered News–Press to compare its unpublished accident photographs with 15 photographs taken by the California Highway Patrol (CHP) to determine if the News–Press photographs contained any pertinent information not appearing in the CHP photographs.

On June 16, 1987, real party, Volkswagen, submitted the CHP photographs for comparison.   On September 2, 1987, News–Press replied that its photographs were of “very little ․ additional value” beyond that of the CHP photographs, and therefore refused to relinquish the photographs to Volkswagen.   On November 10, 1987, Volkswagen moved to compel production of the photographs.

News–Press contends that, because it is not a party to the action, its photographs are absolutely privileged under both article I, section 2(b) of the California Constitution and California's shield law.  (See Evid.Code, § 1070;  Mitchell v. Superior Court (1984) 37 Cal.3d 268, 274, 208 Cal.Rptr. 152, 690 P.2d 625;  Playboy Enterprises, Inc. v. Superior Court (1984) 154 Cal.App.3d 14, 19, 201 Cal.Rptr. 207.)

The court concluded that News–Press held only a qualified privilege in the photographs.   In an attempt to protect the rights of all parties, it sought to view the photographs in camera to determine if the privilege is outweighed by Volkswagen's right to discovery of relevant information.   News–Press sought relief by way of extraordinary writ and a stay of respondent court's order.

AVAILABILITY OF MANDAMUS IN DISCOVERY MATTERS

We must determine whether the issue here is worthy of review by way of extraordinary writ.   That a trial court has committed error in ruling upon a discovery-related motion does not automatically entitle a disgruntled litigant to immediate appellate review.   As a rule, an extraordinary writ is not favored by appellate courts as a method of review of discovery orders.   (Sav–On Drugs, Inc. v. Superior Court (1975) 15 Cal.3d 1, 5, 123 Cal.Rptr. 283, 538).  “As inadequate as such review may be in some cases, the prerogative writs should only be used in discovery matters to review questions of first impression that are of general importance to the trial courts and to the profession, and where general guidelines can be laid down for future cases.”  (Oceanside Union School Dist. v. Superior Court (1962) 58 Cal.2d 180, 185–186, fn. 4, 23 Cal.Rptr. 375, 373 P.2d 439.)

Reviewing courts must be vigilant against the tendency of taking “too lax a view of the ‘extraordinary’ nature of prerogative writs,” (Pacific Tel. & Tel. Co. v. Superior Court (1970) 2 Cal.3d 161, 170, 84 Cal.Rptr. 718, 465 P.2d 854) lest they run the risk of fostering the delay of trials, vexing litigants and trial courts with multiple proceedings, and adding to the delay of judgment appeals pending in the appellate court.  (Babb v. Superior Court (1971) 3 Cal.3d 841, 851, 92 Cal.Rptr. 179, 479 P.2d 379;  Burrus v. Municipal Court (1973) 36 Cal.App.3d 233, 236, 111 Cal.Rptr. 539.)

Next comes the inevitable exception to the rule.   Not all requests for extraordinary writs arising from discovery-related motions will be denied.   A challenge by way of prerogative writ to those orders of a trial court that grant discovery over the objection that the information is protected by privilege is the more likely candidate for appellate court intervention.   (Britt v. Superior Court (1978) 20 Cal.3d 844, 143 Cal.Rptr. 695, 574 P.2d 766;  Valley Bank of Nevada v. Superior Court (1975) 15 Cal.3d 652, 125 Cal.Rptr. 553, 542 P.2d 977;  Roberts v. Superior Court (1973) 9 Cal.3d 330, 107 Cal.Rptr. 309, 508 P.2d 309;  1 Hogan, Modern Cal. Discovery (3d ed.1981) § 1.07, pp. 17–18.)   The rationale for this policy was discussed in the Roberts case:

“The need for the availability of the prerogative writs in discovery cases where an order of the trial court granting discovery allegedly violates a privilege of the party against whom discovery is granted, is obvious.   The person seeking to exercise the privilege must either succumb to the court's order and disclose the privileged information, or subject himself to a charge of contempt for his refusal to obey the court's order pending appeal.   The first of these alternatives is hardly an adequate remedy and could lead to disruption of a confidential relationship.   The second is clearly inadequate as it would involve the possibility of a jail sentence and additional delay in the principal litigation during review of the contempt order.”  (Roberts v. Superior Court, supra, 9 Cal.3d at p. 336, 107 Cal.Rptr. 309, 508 P.2d 309.)

If News–Press disobeys the court's order, it runs the risk of a contempt citation.   The exercise of this court's original jurisdiction, therefore is necessary in order to ensure that News–Press' rights be afforded appropriate protection.

NEWS GATHERER'S PRIVILEGE

The trial judge who insisted upon holding an in camera hearing regarded the issue as being no more than a “tempest in a teapot.”   The trial court concluded that the case did not involve confidentiality of sources, and that the photographs would “undoubtedly rest in some dusty repository until they are put in the wastebasket.”

We will not speculate on the manner in which News–Press runs its newspaper.   We assume, however, it is not with the insouciance expressed by Charles Foster Kane.1  Volkswagen contends it has the right to inspect the photographs.   It argues that News–Press enjoys only a qualified privilege, and that the privilege is outweighed by a public policy favoring full disclosure of relevant evidence.   To place such a construction upon the privilege of confidentiality would substantially impair a news gatherer's access to information.

Freedom of the press lies at “the very foundation of constitutional government.”  (De Jonge v. Oregon (1937) 299 U.S. 353, 365, 57 S.Ct. 255, 260, 81 L.Ed. 278;  see also New York Times Co. v. Sullivan (1964) 376 U.S. 254, 269–270, 84 S.Ct. 710, 720–721, 11 L.Ed.2d 686.)   The public interest in the maintenance of a press corps that is allowed to freely gather and disseminate news is paramount.  (Mitchell v. Superior Court, supra, 37 Cal.3d at p. 274, 208 Cal.Rptr. 152, 690 P.2d 625.)   The interest of a society in the vigorous and free flow of ideas is hindered where its news reporters are encumbered with the threat of imprisonment for declining to reveal their information or sources.

 On June 3, 1980, the California electorate added, by an overwhelming majority, section 2, subdivision (b) to article I of the California Constitution.   This provision states that a news gatherer “shall not be adjudged in contempt ․ for refusing to disclose any unpublished information obtained or prepared in gathering, receiving or processing of information for communication to the public.”   Photographs, for the purpose of this measure, are considered “unpublished information.”

This provision, like its statutory companion, Evidence Code section 1070, provides immunity from contempt power;  a privilege is not created.  (See Assem. Com. on Judiciary Com. to Evid.Code, § 1070, West's Ann.Evid.Code (1966) p. 655.)   But, as a rose is a rose by any other name, so too is a privilege.   Nonparty news gatherers receive absolute protection from compelled disclosure.

“In cases where the newsgatherer is not a party to the lawsuit, ․ this ‘immunity’ is the functional equivalent of a privilege, for the only sanction available against nonparties under the Discovery Act is the use of the contempt power.  [Fn. omitted.]”  (2 Hogan, Modern Cal. Discovery (3d ed.1981) § 11.27, p. 350;  see also Mitchell v. Superior Court, supra, 37 Cal.3d at p. 274, 208 Cal.Rptr. 152, 690 P.2d 625;  Shaklee Corporation v. Gunnell (N.D.Cal.1986) 110 F.R.D. 190, 194, fn. 2.)   On the other hand, “[s]anctions other than contempt, e.g., those available in discovery proceedings, can be imposed against a newsman who is a party to a civil proceeding.”  (2 Witkin, Cal.Evidence (3d ed.1986) § 1291, p. 1234.)

Volkswagen argues that because application of the news gatherer's privilege may conflict with other constitutional rights, the privilege is not absolute.   It contends that the court must consider competing interests and then determine whether some other constitutional right suffers by application of the privilege.   It is true that in cases involving criminal matters, confidential communications between doctors and patients, and broad requests for discovery, a balancing of competing interests may be appropriate.2

Volkswagen relies on the balancing of interests test set forth in Mitchell v. Superior Court, supra, 37 Cal.3d 268, 208 Cal.Rptr. 152, 690 P.2d 625, to support its position that News–Press holds no more than a qualified privilege.   What this argument overlooks is that the news gatherers in Mitchell who were seeking to resist the order for discovery were parties to the lawsuit.   Our Supreme Court pointed out that compelled disclosure might be appropriate in those cases in which newsmen are parties.  (Id., at p. 279, 208 Cal.Rptr. 152, 690 P.2d 625.)   Neither News–Press nor its employee is a party in the lawsuit for which discovery is being sought.

In Playboy Enterprises, Inc. v. Superior Court, supra, 154 Cal.App.3d 14, 201 Cal.Rptr. 207, defendants in a civil lawsuit sought to discover from Playboy magazine, a nonparty in that action, the content of “each and every” interview its reporter conducted with the plaintiffs.   The trial court ordered Playboy to produce such information.   The appellate court granted Playboy's petition for a writ of mandate.   It ruled that all information acquired by a nonparty witness in the course of news gathering—save that information which had been disseminated among the public—came within the protection of California's news gathering shield law.  (Id., at p. 22, 201 Cal.Rptr. 207.)   The court concluded that the protection afforded a nonparty witness by the shield law was not to be subverted by a civil litigant's right to conduct discovery.  (Id., at p. 28, 201 Cal.Rptr. 207.)

The Playboy court 3 may have engendered confusion for Volkswagen when it paused to determine a “threshold question” as to whether the court should balance the competing interests of the newsgatherer and the defendant.   (Playboy Enterprises, Inc. v. Superior Court, supra, 154 Cal.App.3d at p. 25, 201 Cal.Rptr. 207;  see Note, The Newsgatherer's Shield—Why Waste Space in the California Constitution? (1985) 15 Sw.U.L.Rev. 527, 562–563.)   Volkswagen suggests that the Playboy threshold question placed an obstacle in the path of the news gatherer's shield law.   The obstacle is illusory and exists only in the mind of the beholder.   The threshold question need not have been asked.   In civil cases where the news gatherer is not a party, the privilege is absolute.

Whether the photographs sought are bound for oblivion in a wastebasket or have some special significance to the News–Press is not important.   The news gatherer on the beat does not have to worry about potential uses of his or her material in third party actions.   The Constitution and the statute recognize that a news gatherer's information must be protected whether or not that information comes from a confidential source.  (Playboy Enterprises, Inc. v. Superior Court, supra, 154 Cal.App.3d at p. 23, 201 Cal.Rptr. 207;  Hammarley v. Superior Court (1979) 89 Cal.App.3d 388, 397–398, 153 Cal.Rptr. 608.)

The shield law is to be broadly applied.   Its provisions afford absolute protection to nonparty journalists in civil litigation from being compelled to disclose unpublished information.   That is how it was applied in Playboy, and how it must be applied here.

Volkswagen contends that the Playboy court did not allow constitutional protections to apply to non-confidential material.   That is incorrect.   The Playboy court ruled only that Playboy Enterprises held no constitutional right to refuse to disclose the whereabouts of a potential witness, the freelance writer who wrote the story which was the subject of the lawsuit.   (Playboy Enterprises, Inc. v. Superior Court, supra, 154 Cal.App.3d at p. 29, 201 Cal.Rptr. 207.)

We hold respondent superior court's order of January 5, 1987, and its memorandum decision, dated January 21, 1988, in which the court seeks to inspect the disputed photographs in order to balance the conflicting imperatives of News–Press and Volkswagen, to be improper.

Let a writ of mandate issue ordering respondent superior court to set aside its order dated January 5, 1987, and its memorandum of decision dated January 21, 1988, ordering the in camera inspection of the photographs taken by News–Press, and to enter a new order denying real party Volkswagen's motion to compel production of said photographs.

FOOTNOTES

1.   “I don't know how to run a newspaper, Mr. Thatcher.   I just try everything I can think of.”  (See Welles, Citizen Kane, The Motion Picture (1941);  Kael, The Citizen Kane Book (1971).)

2.   “In cases involving a conflict between the criminal defendant's constitutional right to a fair trial and a newsperson's protection under the First Amendment and section 1070, the criminal defendant's constitutionally derived protection has resulted in the rule that ‘where a criminal defendant has demonstrated a reasonable possibility that evidence sought to be discovered might result in his exoneration, he is entitled to its discovery.’  [Citations.]”  (Playboy Enterprises, Inc. v. Superior Court, supra, 154 Cal.App.3d at pp. 24–25, 201 Cal.Rptr. 207;  see also CBS, Inc. v. Superior Court (1978) 85 Cal.App.3d 241, 251, 149 Cal.Rptr. 421;  Pennsylvania v. Ritchie (1987) 480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40;  People v. Reber (1986) 177 Cal.App.3d 523, 223 Cal.Rptr. 139.)See also Kahn v. Superior Court (1987) 188 Cal.App.3d 752, 233 Cal.Rptr. 662;  Cutter v. Brownbridge (1986) 183 Cal.App.3d 836, 228 Cal.Rptr. 545;  and Britt v. Superior Court, supra, 20 Cal.3d 844, 143 Cal.Rptr. 695, 574 P.2d 766.

3.   The catchy phrase “Playboy court” does not reflect our view of the court, but only refers to the case decided by the court.

GILBERT, Associate Justice.

STONE, P.J., and ABBE, J., concur.