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DOE v. KOHN

May 13, 1994

JOHN DOE, ESQUIRE
v.
KOHN, NAST & GRAF, P.C., et al.



The opinion of the court was delivered by: HARVEY BARTLE, III

 Bartle, J.

 Plaintiff, an attorney, brought this action under the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq. against the law firm of Kohn, Nast & Graf, where he was formerly employed as an associate, and against one of its partners, Steven Asher. Plaintiff alleges that in December of 1992, the firm fired him because he was infected with the Human Immunodeficiency Virus ("HIV"). He also has various state claims for relief.

 In January, 1994, plaintiff gave several hours of videotaped interviews to NBC concerning the underlying lawsuit. NBC broadcast several minutes of the interviews on its NOW program on January 19, 1994. In February, 1994, ABC News interviewed plaintiff. A portion of that exchange was televised on February 20, 1994. Although it has not been aired, plaintiff also gave an interview to CBS sometime in late February, 1994.

 Plaintiff was deposed for five days in March, 1994. According to defendants, he made statements at his deposition which are materially inconsistent with statements made during the broadcast portions of the NBC and ABC interviews.

 The broadcast segments have been produced in discovery. Defendants, however, served subpoenas on NBC, ABC and CBS for the complete interviews of plaintiff. Defendants contend that the tapes will provide admissions by plaintiff *fn3" as well as impeachment material. All three networks have objected to the production. They assert that a journalist's privilege arising under federal common law and the First Amendment to the Constitution protects the unbroadcast portions of the interviews commonly known as "outtakes." *fn4"

 The First Amendment provides that "Congress shall make no law . . . abridging the freedom . . . of the press . . ." The free press clause was designed to "preserve an untrammeled press as a vital source of public information." Grosjean v. American Press Co., 297 U.S. 233, 250, 80 L. Ed. 660, 56 S. Ct. 444 (1936). In Branzburg v. Hayes, 408 U.S. 665, 33 L. Ed. 2d 626, 92 S. Ct. 2646 (1972), the Supreme Court declined to adopt a privilege for journalists to refuse to testify before a grand jury. It stated, however, that the First Amendment to the Constitution affords some protection for the process of news gathering, explaining that "without some protection for seeking out the news, freedom of the press could be eviscerated." Id. at 681.

 The Court of Appeals of this Circuit has recognized a qualified privilege for journalists to protect confidential sources and other information. In Riley v. City of Chester, 612 F.2d 708, 714 (3d Cir. 1979) the court held that journalists have a qualified federal common law privilege to protect confidential sources arising under Rule 501 of the Federal Rules of Evidence. *fn5" The court, relying on the Branzburg decision, recognized the "constitutional dimension" of the privilege. Id. at 715. It explained that the privilege is necessary to effectuate the "strong public policy which supports the unfettered communication to the public of information, comment and opinion." Id. In United States v. Cuthbertson, 630 F.2d 139, 146 (3d Cir. 1980), cert. denied, 449 U.S. 1126, 67 L. Ed. 2d 113, 101 S. Ct. 945 (1981), a criminal case, the Court of Appeals extended the privilege beyond the protection of a confidential source to include the protection of a reporter's notes and other unpublished information, including unbroadcast portions of interviews. The court found that compelled disclosure of a reporter's unpublished resource materials "may substantially undercut the public policy favoring the free flow of information to the public that is the foundation for the privilege." Id. at 147.

 The privilege, however, is not absolute and must be weighed against the strong interest of litigants in the full and complete disclosure of relevant evidence. See Riley, supra at 716. Evidentiary privileges in general are not favored because they interfere with the search for the truth. United States v. Criden, 633 F.2d 346, 358 (3d Cir. 1980), cert. denied, 449 U.S. 1113 (1981). Consequently, the court must "balance on one hand the policies which give rise to the privilege and their applicability to the facts at hand against the need for the evidence sought to be obtained in the case at hand." Riley, 612 F.2d at 716. Under Cuthbertson, in striking this balance, the court may consider, as an important factor favoring disclosure, the fact that the identity of the source of the information is not confidential. 630 F.2d at 139. On the other hand, the First Amendment interest of the press may be entitled to greater weight in a civil case than in a criminal case. Id. at 147; Riley, 612 F.2d at 716. Ultimately, the decision on whether to order production of outtakes is extremely fact specific, and the court must examine the details of each case on an ad hoc basis. Id. at 715.

 In making this determination, the Court of Appeals for this Circuit has developed a three part test which movant must satisfy before production of materials covered by the reporter's qualified privilege may be compelled:

 
First, the movant must demonstrate that he has made an effort to obtain the information from other sources. Second, he must demonstrate that the only access to the information sought is through the journalist and her sources. Finally, the movant must persuade the court that the information sought is crucial to the claim. [Emphasis added]

 United States v. Criden, 633 F.2d at 358.

 From the outset, it has appeared to this court that an in camera review of the tapes would be helpful, if not essential, to its analysis. The media, however, has declined the court's request voluntarily to produce the outtakes for examination. Under Cuthbertson, this court cannot compel the production of the tapes, even for in camera inspection, unless the moving party has satisfied certain threshold requirements. Specifically, the movant must show that the information sought is unavailable elsewhere ...


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