United States District Court, E.D. Virginia, Norfolk Division
DOUGLAS E. MILLER, Magistrate Judge.
This consolidated action involves claims of injury and damage allegedly arising from mold in military housing provided by certain Defendants under long-term agreements with the United States Military. The matters raised by the various actions received coverage by the media, including extensive coverage by local television station, WTKR. As a result, Defendants issued subpoenas to WTKR and its reporter Laurie Simmons, seeking information related to the litigation. Both Simmons and WTKR filed a Motion to Quash (ECF No. 226) the subpoena and the parties, by counsel, appeared for oral argument. For the reasons stated on the record, the Court GRANTED in part and DENIED in part the motion, and issues this Memorandum Order to articulate the view of the law underlying this decision.
As written, Defendants' subpoenas requested far more information than necessary or relevant to the present actions. For example, the subpoenas define "Home" and "Homes" as "each and every home owned or managed by Defendants during the period covered by the Consolidated Actions." (ECF No. 226-1 at 7 and ECF No. 226-2 at 7). These definitions, which are used throughout the subpoenas, are unnecessarily broad - encompassing properties owned or managed by Defendants nationwide, far beyond the scope of WTKR's localized coverage. Compounding this problem, these "definitions" are incorporated in several other definitions and queries. For example, the definition of "Incident" and "Condition" both refer to excess moisture in any "Home, " and the definition of "Work, " relates to the repair (for any unspecified reason) of any Home. (ECF No. 226-2 at 7-10). Because the definitions are incorporated in various enumerated requests, the subpoenas encompass material far outside the bounds of relevance. In addition, the subpoenas sought discovery of not just material and communications gathered by WTKR from the parties in this case, but also its communication with Plaintiffs' counsel, id. at 7, other media outlets, id. at I 1, government agencies, id. at 9, as well as blog, internet and social media posts, id. Seeking to limit, or avoid altogether their duty to produce the subpoenaed material, WTKR and Simmons moved to quash the subpoenas.
I. WTKR's Claim to a Reporter's Privilege
In their briefing, the parties argue at length about whether news agencies enjoy a qualified or constitutional privilege under the First Amendment to resist complying with Defendants' broad discovery requests. This so-called "reporter's privilege, " according to WTKR and Simmons, should prevent Defendants' attempt to make "the station and its employees [their] investigators." (ECF No. 227 at 12). According to Defendants, however, there is no privilege as they "are not seeking the identification of a confidential source." (ECF No. 248 at 15). For the reasons that follow, the Court is persuaded that WTKR is entitled to some measure of protection under the Fourth Circuit's interpretation of Supreme Court precedent, but nevertheless must respond to Defendants' subpoenas as limited below.
Admittedly, "the judicial history of the First Amendment journalist privilege is not notable for its clarity." United States v. Lindh , 210 F.Supp.2d 780, 782 (E.D. Va. 2002). It begins with Branzburg v. Hayes , 408 U.S. 665 (1972), "where the Supreme Court majority considered and expressly rejected the creation of a First Amendment journalist privilege in criminal cases." Lindh , 210 F.Supp.2d at 782. Justice Powell joined the majority opinion in Branzburg, but also wrote a separate concurring opinion "to emphasize... the limited nature of the Court's holding." Branzburg , 408 U.S. at 709, He wrote:
[I]f the newsman is called upon to give information bearing only a remote and tenuous relationship to the subject of the investigation, or if he has some other reason to believe that his testimony implicates confidential source relationship without a legitimate need of law enforcement, he will have access to the court on a motion to quash....
Id. at 710.
Justice Powell's concurrence "did not disassociate his views from the main, and quite unequivocal, holding of the majority opinion (which Justice Powell joined) that there was no reportorial privilege under the First Amendment." United States v. King , 194 F.R.D. 569, 578 (E.D. Va. 2000); see also United States v. Sterling , 724 F.3d 482, 495 (4th Cir. 2013) ("Justice Powell's concurrence expresses no disagreement with the majority's determination that reporters are entitled to no special privilege that would allow them to withhold relevant information about criminal conduct without a showing of bad faith or other such improper motive...."). Rather, he merely underscored the protections already enjoyed by journalists under the First Amendment. "[T]o Justice Powell, the need for protection was to be judged on a case-by-case basis, with an appropriate balance to be struck based on the specific facts of each case." King , 194 F.R.D. at 578.
As demonstrated by the foregoing citations, Justice Powell's concurrence has had significant influence on the development of First Amendment protection for reporters among the Circuits. In one of the most recent Fourth Circuit opinions on the issue, the Court reiterated Branzburg's central premise that "[t]here is no First Amendment testimonial privilege, absolute or qualified, that protects a reporter from being compelled to testify... in criminal proceedings about the criminal conduct that the reporter personally witnessed or participated in, absent a showing of bad faith, harassment, or other such non-legitimate motive." Sterling , 724 F.3d at 492. Despite arguments that the lack of such a privilege "would chill the future newsgathering abilities of the press, to the detriment of the free flow of information to the public" - the same argument offered by WTKR here - both Branzburg and Sterling rejected that rationale in the context of criminal cases. See id. at 496-96; Branzburg , 408 U.S. at 691. Sterling expressly considered whether the Fourth Circuit in fact recognized a limited or qualified reporter's privilege with the three part test it enunciated in LaRouche v. National Broadcasting Co., Inc. , 780 F.2d 1134 (4th Cir. 1986). But, as the court noted, LaRouche considered "a civil litigant's right to compel evidence from a reporter and the First Amendment claim of the press to protect its newsgathering activities." Sterling , 724 F.3d at 496. There, the Fourth Circuit specifically recognized a limited reporter's privilege "in this civil context." Id.
The privilege established in LaRouche, requires a party seeking disclosure to meet a three-part test which examines: "(1) whether the information is relevant, (2) whether the information can be obtained by alternative means, and (3) whether there is a compelling interest in the information." Id. at 496-97; (quoting LaRouche , 780 F.2d at 1139). This limited protection for reporters resisting civil discovery was consistent with Branzburg, the Fourth Circuit held, because "the public interest in effective criminal law enforcement is absent." Sterling , 724 F.3d at 497 (quoting Zerilli v. Smith , 656 F.2d 705, 711-12 (D.C. Cir. 1981)). However, the Fourth Circuit went on in Sterling to emphasize the "critical" distinction between civil and criminal cases in this context, recognizing that "[s]ubpoenas in criminal cases are driven by the quite different and compelling public interest in effective criminal investigation and prosecution, an interest that is simply not present in civil cases." Sterling , 724 F.3d at 497-98.
In re Shain , 978 F.2d 850 (4th Cir. 1992) on the other hand, had clearly rejected any sort of qualified or limited reporter's privilege "grounded on the First Amendment, against being compelled to testify in [a] criminal trial. " Id. at 497 (quoting Shain , 978 F.2d at 851). The reporters in Shain were held in contempt for refusing to comply with subpoenas to testify in the criminal trial of a former state senator whom they had interviewed. Id . In its analysis, the Fourth Circuit in Sterling observed that despite two sister-circuits having extended a LaRouche-like three-part test to criminal proceedings, the Shain court "declined to follow that path." Id . (citing United States v. Caporale , 806 F.2d 1487, 1503-04 (11th Cir. 1986) and United States v. Burke , 700 F.2d 70, 76-77 (2d Cir. 1983)). Instead, the court refused to recognize a "broad privilege, " and following Branzburg, held that "absent evidence of governmental harassment or bad faith, the reporters have no privilege different from that of any other citizen not to testify about knowledge relevant to a criminal prosecution." Id . (quoting Shain , 978 F.2d at 852).
Thus, absent evidence of wrongdoing, such as harassment or some other improper motive, there is simply no reporter's privilege in criminal proceedings. It is also clear, however, that "an overwhelming number of lower courts, including this court and the Fourth Circuit, have recognized a newsperson's privilege from revealing their confidential news sources in civil proceedings." Stickels v. Gen'l Rental Co., Inc. , 750 F.Supp. 729, 731 T.D. Va. 1990) (citing cases). This privilege, stemming from the discussion in Branzburg, "and particularly from the concurring opinion of Justice Powell, " requires the district court to undergo the balancing of interests as outlined by LaRouche. Id.
What remains less clear is whether the limiting principles of LaRouche, apply to civil cases in which the discovery does not seek disclosure of confidential sources, and is otherwise consistent with ordinary obligations of non-parties responding to properly framed subpoenas. See e.g., United States v. King , 194 F.R.D. 569, 584 (E.D. Va. 2000) ("[T]he predicate for conducting the balancing of factors identified in LaRouche, is... the circumstance in which both confidentiality of the source material and vexation or harassment is demonstrated."); but see Stickels , 750 F.Supp. at 732 (analyzing cases and adopting a "qualified privilege for nonconfidential information and materials acquired by the ...