In Re Appeal of Goodfader

CONCURRING OPINION OP

LEWIS, J.

I concur in Avhat is said in the opinion of the court to and including note 4, though Avith reservations as to the significance of the last paragraph of the ..quotation from Blair v. United States, 250 U.S. 273, 281 . I also concur in Avhat is said toward the end of the opinion, concerning deponent’s contention that the trial court refused to exercise judicial discretion and held it had. no discretion; at the hearing held May 11, 1959 the court both recognized and proceeded to exercise the discretion possessed by it.

I am persuaded, however, that in. the posture of the *345 case as it comes before us we are not required to and indeed cannot determine “whether the inquiry plaintiff desired to make was of enough importance to her case and appeared sufficiently likely to be productive, to warrant disregarding or overriding deponent’s obligation to the tradition of his calling.” We are unable to review the court’s ruling on that question in the absence of defendants, who have not been brought before this court. Accordingly, having given our answers to the reviewable questions (the claim of privilege, and specification of error No. 5 asserting that. the trial judge refused to exercise judicial discretion), and having found no ground for reversal as to those matters, we should affirm without going further.

This is an interlocutory appeal from an order made under H.R.C.P., Rule 37(a). Rule 37(b) has not yet been invoked. In the trial court, defendants were represented by counsel at the hearing of May 11, 1959 though not at the hearing of May 22, 1959. Defendants were “parties to the judgment”; under the federal rule the clerk would have mailed them a copy of the notice of appeal. Under our comparable provision, H.R.C.P., Rule 73(b), deponent should have served upon them notification of the filing of the notice of appeal.

While under Rule 73(a) service of the notice of appeal is not a jurisdictional step (Clifford v. Clifford, 43 Haw. 48 ; Laupahoehoe Sugar Company v. Lalakea, 27 Haw. 682 ), appellant must bring into court all necessary parties or hazard dismissal. Lufkin v. Gravid Hotel Co., 24 Haw. 744, 748 . Appellant has the burden of complying promptly with all the requirements of Rules 73 and 75. Clifford v. Clifford, supra. These requirements include service by appellant on all affected parties (see Rule 5(a));of the notice of appeal and other papers specified in the rules.

*346 In this case appellant, the deponent, has not sought to bring defendants before this court; 1 deponent contends that defendants are not necessary parties. Plaintiff contends that defendants are before this court, but it was not for them or for the clerk to shape the case. 2 Plaintiff did not seek an order of this court that defendants be joined as parties to this appeal. Defendants have made no appearance.

The taking of the deposition constitutes a collateral matter, and the parties entitled to take the appeal, also those who are necessary parties to the appeal, are to be determined accordingly. Cf., Mills v. Smiley, 9 Idaho 317 , 76 Pac. 783 ; Anglo-Californian Bank v. Superior Court, 153 Cal. 753 , 96 Pac. 803 ; Keating v. Keating, 43 Haw. 51 ; Doggett v. Deauville Corp., 148 F. 2d 881 (5th Cir.); Mitchell v. Lay, 48 F. 2d 79 (9th Cir.). Had deponent not sought an evaluation of the importance of the information demanded of him, then as in Mills v. Smiley, supra, the only other necessary party would be the one who obtained the court’s process against him, i.e., the plaintiff who obtained the order under Rule 37(a) compelling deponent to answer. But in seeking to argue the importance of the information sought of him, deponent in effect relies upon H.R.C.P., Rule 30(d); this must be taken into consideration.

It is deponent’s own position that Rule 30(d) is involved ; answering plaintiff’s contention that deponent has no right to rely on Rule 30 in view of his not having *347 made a motion under Rule 30(d) to limit tlie examination, deponent contends that his action in resisting the motion under Rule 37(a) “was in substance, if not form, a motion for an order prohibiting inquiry into certain matters and limiting the scope of the examination.” Assuming for present purposes that the matter should be so viewed, this but serves to emphasize that defendants are necessary parties, under the general rule that “every person to be directly affected in his interests or rights by a judgment on appeal * * * is entitled * * * to have notice thereof, and an opportunity of being heard and defending his rights.” Ting v. Born, 21 Haw. 638, 641; Lufkin v. Grand Hotel Co., supra, 24 Haw. 744, 748 .

H.R.C.P., 30(a) provides for notice of the taking of a deposition upon oral examination to “every other party to the action.” Here defendants gave notice of the taking of Mr. Goodfader’s deposition. In response to defendants’ notice, plaintiff appeared and carried the questioning into the sensitive area, thus stimulating what in effect was a motion by deponent under Rule 30(d) for limitation of the examination. When the matter reached that point, the other parties present and participating in the taking of the deposition could not be sloughed off.

It is the parties who frame the issues. A witness cannot assert a party’s objections to the cause of action or the materiality of the testimony sought from him. Fenton v. Walling, 139 F. 2d 608 (9th Cir.); Nelson v. United States, 201 U.S. 92, 114, 115 (cited in Blair v. United States, 250 U.S. 273, 282 , a quotation from which is set out in the opinion of the court); Fairfield v. United States, 146 Fed. 508 (8th Cir.).

In Nelson it is stated that: “The tendency or effect of the testimony on the issues between the parties is no concern of theirs [the witnesses’].” This principle has been applied both in contempt proceedings where the witness *348 has disobeyed tbe court’s order that he answer, as in the cases cited in the previous paragraph, and also at the earlier stage when the court rules on the application for the order to compel the witness to answer. In re Ullman, 128 F. Supp. 617, 628 (S.D.N.Y.); New England Phonograph Co. v. National Phonograph Co., 148 Fed. 324 (C.C.D.N.J.). The application of this principle in the present case requires examination.

In some cases the witness has no independent right, but seeks to avoid the hardship and inconvenience of testifying, as in Ex parte Blair, 253 Fed. 800 ; aff’d, Blair v. United States, supra. Here the contention is different. The contention is that there is a privilege of a newsman not to reveal a confidential source of information unless it is of sufficient importance tO' the case to warrant the breach of confidence. 3 A conflict between this contention and the Nelson rule immediately appears. If deponent’s sole contention were that he has an absolute privilege 4 there would be no conflict with the Nelson rule. But that is not the situation. Under the contention deponent is making, the tendency and effect of the testimony on the issues between the parties is of concern to the newsman witness.

Let us suppose that a defendant seeks by deposition to elicit that there is nothing to plaintiff’s case, prelim *349 inary to moving for summary judgment. The newsman witness is not satisfied with this procedure. He feels that he is being unnecessarily injured if forced to reveal confidential sources of information. He seeks to pinpoint the crucial issue. These are the very tactics which defendant had decided not to follow. Who is to prevail? If that question is to be argued it clearly cannot be done in the absence of defendant.

The present case is comparable to the hypothetical case just put. Deponent’s real contention is that, as a newsman with confidential sources, he is being unnecessarily injured by the manner in which the parties are conducting their case. 5 Defendants, who themselves sought deponent’s testimony in an apparent effort to show that there was nothing significant in this newsman’s appearance with a photographer at the Civil Service Commission meeting at which plaintiff was discharged from her position, could hardly object to plaintiff’s motion seeking to obtain an answer on cross-examination to the question who it was that gave him the confidential information that, among other things, caused him to attend the meeting. At all events, defendants’ counsel seems to have taken a neutral position at the hearing of that motion. Deponent is in the position of asserting against both plaintiff and defendants that there is a resultant injustice to himself in the exploration they are conducting.

I do not see how this court can entertain the question which thus emerges when the defendants have not been brought before us but only the plaintiff. Lord v. Lord, 35 Haw. 10 , is distinguishable. In that case demur *350 ring defendants were allowed to take an interlocutory appeal without serving the notice of appeal on other defendants who had' answered without demurring. Here, however, the interlocutory appeal has been taken by one who does not himself have the rights of a party defendant. Under the circumstances, the most that this court could do would be to direct that the construction and legal effect of the pleadings be briefed and argued by plaintiff and defendants, with deponent participating as an interested bystander. Cf., Simonin’s Sons v. American Can Co., 30 F. Supp. 901 (E.D.Pa.), and La Cotonniere de Moislains v. H. & B. American Machine Co., 19 F.R.D. 6 (D.Mass.), in which the litigants were the parties to the action.

In all but one of the cases cited by deponent, discovery was sought of a party or its officers and employees, and the difficulty with which we are confronted did not arise. In one case, Shawmut, Inc. v. American Viscose Corp., 11 F.R.D. 562 (S.D.N.Y.), a motion under Rule 30(d) to limit the examination was made by a deponent who was not a party to the action though named therein as a coconspirator. This motion was made in the New York district in which the deposition was being taken. The action, however, was pending in the United States District Court for the District of Massachusetts, which already had ruled against a motion by the defendant in the action to exclude discovery of customer names obtained by that defendant from the person subsequently making the motion in New York. In the proceeding in New York it was held that-'the earlier ruling in Massachusetts was not binding on movant. This case is not a pattern for the procedure to be followed when, as here, the deposition is being taken where the action was brought.

In City and County of San Francisco v. Superior Court, 38 Cal.2d 156 , 238 P.2d 581 , also cited by de *351 ponent, the question was whether plaintiff civil service employees could inspect data which the Civil Service Commission, one of the defendants, had obtained from private employers in confidence, and could not have obtained otherwise. By statute public officers were protected from examination as to communications made to them in official confidence when the public interest would suffer by the disclosure. This statute was applied, and the effect of the ruling on the salary schedule that had been adopted on the basis of this data was left to be determined later, the court saying: “What may be the relation of the agreements of confidence to the alleged cause of action or defense is not a matter for consideration at this time.” We do not have here a statute such as was applicable there, and deponent cannot prevail on any such basis.

The opinion of the majority proceeds upon the assumption that the key- fact is that which plaintiff asserts to be such. The same approach was taken in Garland v. Torre, 259 F.2d 545 (2d Cir.), where however information was sought as admissible evidence and not merely as a lead to evidence. In my view, this approach does not put the spotlight on the real difficulty in the present case. We can say that such privilege as deponent may have, at all events is dependent upon the circumstances, Ave can rule that the trial court did exercise the discretion possessed by it, but we cannot pass upon deponent’s contention that “the interest to be served by compelling disclosure of the deponent’s source of confidential information under the circumstances here present does not justify any impairment of press freedom” (specification of error No. 3), nor on his contention that there is an absence of “some even more compelling societal need,” such as Avould justify the compulsion of the disclosure (specification of error No. 4).

Although, for the reasons stated, it is my view that *352 specifications of error Nos. 3 and 4 are not properly presented, still there are other specifications which present a question for review and the case therefore is not one in which a dismissal is called for. R. W. Meyer, Ltd. v. McGuire, 38 Haw. 184 , 186. Accordingly, I concur in the result and join in the affirmance of the order appealed from.

The notice of appeal, statement of points on appeal, designation of contents of record on appeal, and opening brief of deponent, show only the service on plaintiff, and a stipulation dispensing with bond on appeal bears only tbe signature of ber attorneys.

Tbe clerk of tbe court below placed tbe names of the attorneys for defendants on tbe flyleaf of tbe record on appeal as “attorneys for defendant-appellees,” and tbe clerk of this court notified defendants of tbe entering of tbe case on our calendar; plaintiff served ber brief on defendants’ counsel.

As stated in deponent’s reply brief: “Fundamentally, deponent urges tbat in an inquisitorial examination under our discovery rules in which a party is attempting to obtain clues which may lead to evidence and where the court is given discretion to limit the scope of the examination, a newsman cannot be compelled to disclose a confidential source unless it clearly appears that the information sought is relevant and sufficiently important to á party’s claim or defense as to warrant an abridgment of the freedom of the press resulting - from the forced disclosure of the news sources.”

At the time of the taking of the deposition, deponent’s claim appeared to be one of absolute privilege. Defendants’ counsel at that time indicated that he had no objection to deponent’s claim. Deponent then was not represented by counsel. As the case has developed, the contention is as stated in note 3.

Deponent’s argument that he should he discharged from any obligation to answer plaintiff’s questions on the basis of surmise by this court that the so-called “confidential information” was nothing more than general talk about possible firing of plaintiff, originating in the apparent friction between plaintiff and members of the commission, is not tenable.