The opinion of the court was delivered by: LEE
Specifically, Titan seeks to discover the identity of individuals from TBS and the WCW who consulted with Mr. Madden in connection with Mr. Madden's reports disseminated on the TBS/WCW 900-number hotline. In addition, Titan generally seeks to discover information exchanged in consultations between Mr. Madden and individuals from TBS and WCW relating to allegedly false and defamatory statements disseminated on the 900-number hotline.
Relevant to the instant motion are defamation and libel claims asserted by Titan against TBS and the WCW. First Amended Verified Complaint, Count IX and X, October 31, 1996. In both defamation and libel claims, Titan alleges that Mr. Madden disseminated false information through the use of a 900-number hotline. Titan further alleges that statements made by Mr. Madden were made with a reckless disregard for the truth and with actual malice. First Amended Verified Complaint, PP 202, 217. Finally, Titan alleges that Mr. Madden's comments were "authorized, reviewed and approved by the WCW." First Amended Verified Complaint, PP 200, 215.
During the relevant time period, Mr. Madden worked as a wrestling commentator for TBS and WCW, recording his commentary for dissemination on the 900-number hotline. The WCW operates a 900-number hotline as a source for information and stories relating to its organization and to wrestling in general. Mr. Madden was one of several commentators on the WCW's 900-number hotline. He testified during his deposition that he received information from sources at the WCW and TBS for use in preparing his commentaries on the 900-number hotline. Deposition of Mark W. Madden, July 15, 1996, at 130-32, 135-36. In addition, Mr. Madden testified that he, "sometimes bounced some ideas off WCW personnel." Deposition of Mark W. Madden, at 138. Mr. Madden would then develop a "script" for dissemination on the 900-number hotline. Notably, Mr. Madden also testified that his commentaries were submitted for review to individuals employed by TBS and the WCW prior to airing. Deposition of Mark W. Madden, at 56. At times, WCW personnel edited the submitted commentary. After review of the script and any editorial changes were made, the commentary would be disseminated for the public through the 900-number hotline.
Mr. Madden was deposed in Pittsburgh, Pennsylvania on July 15, 1996. He invoked his journalist's privilege in response to questions by Titan's counsel regarding Mr. Madden's sources at the WCW and TBS. Although Mr. Madden was employed as an independent contractor by TBS and the WCW, he asserted his privilege based on a reporter-source relationship. Titan subsequently filed the instant motion to compel disclosure by Mr. Madden.
In support of its Motion, Titan asserts that (i) Mr. Madden cannot base his privilege on Pennsylvania's Shield Law; (ii) Mr. Madden does not qualify as a journalist entitled to invoke the journalist's privilege; and (iii) assuming that Mr. Madden is deemed to be a journalist, Titan is entitled to discover the relevant information despite Mr. Madden's assertion of the journalist's privilege.
The Federal Law of Privilege Applies
During the course of his deposition, Mr. Madden asserted his privilege pursuant to Pennsylvania's Shield Law. 42 Pa. C.S. § 5942(a). Titan argues that if Mr. Madden is entitled to invoke any privilege, such privilege must be based on federal law and not the Pennsylvania Shield Law. The Court agrees that federal law is to be applied in this case.
In von Bulow v. von Bulow, 811 F.2d 136 (2d Cir.), cert. denied, 481 U.S. 1015, 107 S. Ct. 1891, 95 L. Ed. 2d 498 (1987), the Court of Appeals for the Second Circuit decided a similar question of a non-party witness invoking the journalist's privilege. Before determining that issue, however, the von Bulow court inquired into whether state or federal law governed the privilege. von Bulow, 811 F.2d at 141. Both state and federal claims were asserted by the plaintiff. Because the evidence sought from the alleged journalist related to both federal and state claims, the Court held that federal law controls. Id. In reaching its holding, the von Bulow court noted that the legislative history of Federal Rule of Evidence 501 supports the application of federal law. Id. ; see also Robinson v. Magovern, 83 F.R.D. 79, 84-5 (W.D. Pa. 1979).
Titan's claims against the Defendants include both federal and state law claims. The evidence Titan seeks from Mr. Madden concerns alleged false and defamatory statements attributed to the Defendants, and relates to Titan's claims, including defamation and trade libel, violation of the Lanham Act, and unfair competition in violation of Connecticut state law. Therefore, the Court finds that the federal law of privilege governs the question of Mr. Madden's assertion that the requested information is privileged. Accordingly, Federal Rule of Evidence 501
governs the issues concerning the privilege asserted by Mr. Madden.
Mr. Madden Qualifies As A News Gatherer For Purposes of the Federal Rule of Privilege
Titan contends that Mr. Madden does not qualify as a "journalist" entitled to claim the qualified privilege. Specifically, Titan believes that Mr. Madden cannot qualify as a journalist in his capacity as a commentator for the 900-number hotline. Under the relevant law and the facts of this case, the Court finds that ...