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In re Madden

July 21, 1998

IN RE: MARK MADDEN TITAN SPORTS, INC., A DELAWARE CORPORATION
v.
TURNER BROADCASTING SYSTEMS, INC.; WORLD CHAMPIONSHIP WRESTLING, INC.; ERIC BISCHOFF TITAN SPORTS, INC., APPELLANT



Before: Nygaard, Alito and Lay,* Circuit Judges

The opinion of the court was delivered by: Nygaard, Circuit Judge.

On Appeal from the United States District Court For the Western District of Pennsylvania (D.C. Civil No. 96-MC-00681)

Argued December 9, 1997

OPINION OF THE COURT

The issue on appeal is whether the district court erred by concluding that Mark Madden, a nonparty witness in this civil matter, is entitled to claim a journalist's privilege. We hold that he is not and will reverse.

I.

We will summarize only those facts necessary to give context to the issue. Appellant Titan Sports, Inc., and its competitor, Turner Broadcasting Systems (TBS), are the most prominent professional wrestling promoters in the United States. TBS's "World Championship Wrestling" (WCW) has challenged Titan's "World Wrestling Federation" (WWF) to engage in "interpromotional events," wherein WCW wrestling personalities would compete with WWF personalities. Titan has refused to permit any of its wrestlers to engage in the activities.

Titan sued TBS in the United States District Court for the District of Connecticut alleging unfair trade practices, copyright infringement and other pendent state law claims, none of which are germane to this appeal. Titan Sports Inc. v. Turner Broadcasting Systems, Inc., No. 396-cv-01139 (D. Conn.) (the Connecticut action). As part of the discovery process in the Connecticut action, however, Titan issued a subpoena to take the deposition of Mark Madden, a nonparty witness who is employed by WCW, and resided in the Western District of Pennsylvania.

WCW employs Madden to produce tape-recorded commentaries, which are replayed to callers on WCW's 900-

number hotline. These commentaries promote upcoming WCW wrestling events and pay-per-view television programs, announce the results of wrestling matches and discuss wrestlers' personal lives and careers. Madden asserts that in the course of preparing statements for the WCW hotline, he receives information from confidential sources. He admits, however, that his announcements are as much entertainment as journalism.

During a deposition, Madden refused to identify the sources of certain of his allegedly false and misleading statements recorded for the WCW's 900-number hotline. Madden, through counsel, invoked a "journalist's privilege" and the protection of the Pennsylvania Journalist's Shield Law, 42 Pa. Cons. Stat. Ann. § 5942.*fn1 Titan filed a "Motion to Enforce Subpoena and Otherwise Compel Discovery by a Nonmoving Party." After Titan moved to enforce the subpoena, counsel for Madden and the WCW interposed the qualified federal common law privilege which protects journalists from revealing their confidential sources.

The district court denied Titan's motion insofar as it sought to compel Madden to identify the sources from which he got information for his commentaries. The district court concluded that Madden was a "journalist" with standing to assert the privilege because he intended to disseminate information to third parties. The district court also held that Madden's interest in protecting his sources was not outweighed by the need for disclosure. Titan now appeals.

II.

The somewhat unusual procedural posture of this case requires that we discuss briefly our jurisdiction to hear this appeal. We have jurisdiction over "all final decisions of the district courts. . ." 28 U.S.C. § 1291.*fn2 A final decision of a district court means, with limited exceptions, an order that ends the litigation on the merits and leaves nothing for the district court to do but execute the judgment. Coopers & Lybrand v. Livesay, 437 U.S. 463, 467, 98 S.Ct. 2454, 2457 (1978). Ordinarily, a pretrial discovery order such as this one is not considered final. Enprotech Corp. v. Renda, 983 F.2d 17, 20-21, (3rd Cir. 1993), (an order denying a pretrial civil discovery motion to compel ...


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