# Marketos v. American Employers Insurance

> Michigan Court of Appeals · August 22, 1990 · 185 Mich. App. 179

URL: https://www.frixlaw.com/law-library/cases/9732466

## Case

- **Full name:** Marketos v. American Employers Insurance Company
- **Court:** Michigan Court of Appeals
- **Decided:** August 22, 1990
- **Citations:** 185 Mich. App. 179; 460 N.W.2d 272
- **Precedential status:** Published
- **Opinion:** Dissent by Shepherd
- **Judges:** Weaver, Shepherd, Griffin
- **Cited by:** 7 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

*200 Shepherd, J.
(dissenting). I dissent and would hold that a newspaper has a qualified privilege to withhold nonconfidential information in civil litigation.
I begin the analysis with my view of Branzburg v Hayes, 408 US 665 ; 92 S Ct 2646 ; 33 L Ed 2d 626 (1972). While an initial reading of Branzburg might lead one to conclude that the Supreme Court found that the press does not possess a First Amendment privilege to refuse to respond to a grand jury subpoena under any circumstances, the concurring opinion of Justice Powell and an analysis of the dissenting opinions conveys an entirely different perspective on the case. Justice Powell, in his concurring opinion, would allow the press to oppose appearing before the grand jury if the subpoena were issued for purposes of harassment, if the reporter were 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 relationships without a legitimate need of law enforcement.” 408 US at 710 . Justice Powell added: "The asserted claim to privilege should be judged on its facts by the striking of a proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct. The balance of these vital constitutional and societal interests on a case-by-case basis accords with the tried and traditional way of adjudicating such questions.” 408 US at 710 .
A reading of the immediately preceding language cannot be interpreted to result in a five-justice majority for the proposition that there is no privilege of any kind for a reporter to challenge a subpoena before a grand jury investigating a criminal case. Indeed, when one looks at the dissenting *201 opinions, Justice Powell comes much closer to the rather brief opinion of Justices Stewart, Brennan and Marshall. Quite characteristically, Justice Douglas, in his dissenting opinion, took the position that the press has an absolute right not to appear before the grand jury. I must therefore respectfully disagree with my colleagues on this panel who conclude that Branzburg unqualifiedly denies the press any such privilege.
I must also emphasize that Branzburg was a case involving a subpoena of a reporter to appear before a grand jury investigating a criminal case. Whatever the holding in Branzburg might be, it does not apply to a subpoena issued by a private citizen in private litigation. 1 Indeed, distinguished commentators on Branzburg have said, "Left undecided was the scope of a newsman’s privilege, if any, in testimony before administrative hearings, legislative hearings, and in civil suits.” Nowak, Rotunda & Young, Constitutional Law (2d ed, 1983), ch 18, § VIII, p 911.
With regard to civil cases in general, the same commentators said at pp 913-914:
Assertion of such a privilege in civil cases has met with a qualified success, the lower courts distinguishing Branzburg on the grounds that a civil action does not present as significant a countervailing interest as a criminal prosecution, particularly where the plaintiffs seeking access to a reporter’s notes are not parties to a pending criminal action, but merely prospective witnesses. Thus, *202 in one district court case where the privilege has been sustained, the standard required the party seeking discovery to exhaust alternative sources and to show that the information requested is central to the party’s claim. 22
I further believe that we must begin any analysis of freedom of the press with the well-established doctrine that freedom of speech, press and religion have a preferred position in the hierarchy of constitutional rights. See Murdock v Pennsylvania, 319 US 105 ; 63 S Ct 870 ; 87 L Ed 1292 (1943). To the extent that this preferred position applies to the press, it relates only to interference with press activity; it does not confer upon the press the right to intrude upon areas where the general public may not enter. For example, see Booth Newspapers, Inc v Midland Circuit Judge, 145 Mich App 396 ; 377 NW2d 868 (1985). In Booth Newspapers this Court would not permit a newspaper to gain access to discovery documents which the parties had agreed would not be admitted into evidence. The instant case, however, does not involve the press seeking to intrude upon private rights (where the press stands no higher than anyone else); it involves private litigants seeking to intrude upon the operations of the press. The trial judge in this case commented that at one time appellant Booth Newspapers had been willing to voluntarily release pictures it had taken if the requesting party merely paid a fee. The trial judge could not understand why the newspaper decided to abandon this practice. In my view, if the newspaper has a right not to release the pictures, its prior willingness to do so on a voluntary basis should not be converted into an absolute obliga *203 tion. Either the press has the right to withhold the pictures or it does not. If the press has such a right, it must be free to exercise it whenever it chooses to do so.
This Court has already held that the press does have such a right with respect to confidential information. King v Photo Marketing Ass’n, Inter national, 120 Mich App 527 ; 327 NW2d 515 (1982). Implicit in this Court’s decision in King was a finding that the need to guarantee the unimpeded flow of information, comment and opinion to the general public outweighs a civil litigant’s right to liberal discovery where the information sought is confidential. I believe that even where the information sought is not confidential significant First Amendment interests are implicated.
The job of a newspaper is to gather as much information as it possibly can with respect to all facets of activity of interest and importance to readers. If it does its job well, it logically will be the repository of much information concerning controversial events which take place in the area which it serves. If the price of doing its job well, however, is to be a repeated role as the resource for those seeking information of only speculative value to themselves, coupled with a governmental command that they play that role, the effect will be severe. To make the press, in effect, the investigative arm of every civil litigant . . . inevitably will constrict the flow of information to the press, and ultimately to us all. [In re Subpoena Duces Tecum to Stearns v Zulka, 489 NE2d 146, 151 (Ind App, 1986), quoting Suede Originals v Aetna Casu alty, 8 Media L Rptr 2565, 2566 (Tex Dist Ct, 1982).]
Allowing civil litigants unrestricted access to information gathered by the press which has not been published would disrupt reporters’ news gath *204 ering activities and divert time and resources from journalistic efforts. O’Neill v Oakgrove Construction, Inc, 71 NY2d 521 ; 528 NYS2d 1 ; 523 NE2d 277 (1988). I believe that such unrestricted access to the files of newspersons, who are not parties to the litigation, would unnecessarily burden the freedom of the press in carrying out their news gathering function. I therefore find that reporters do possess a qualified privilege against compelled disclosure to civil litigants of unpublished information which was gathered in the course of the reporters’ employment. In addition to the comments in Nowak, Constitutional Law, supra, I note that several other state and federal courts have found the reporter’s privilege to extend to information which is not confidential. O’ Neill, supra; Zulka, supra; Johnson v Bentley, 457 So 2d 507 (Fla App, 1984); In re Consumers Union of United States, Inc, 495 F Supp 582, 586 (SD NY, 1980); Loadholtz v Fields, 389 F Supp 1299 (MD Fla, 1975); Alternóse Construction Co v Building & Construction Trades Council of Philadelphia, 443 F Supp 489 (ED Pa, 1977).
I must stress that the reporter’s privilege is not absolute. Where a civil litigant can demonstrate that the requested information goes to the heart of the case and that the litigant has exhausted all other means of obtaining the information, the information must be turned over to the litigant. King, supra. On the record before us I cannot determine whether appellee can meet these requirements. I therefore would remand this case to the trial court. If it is true, as alleged by appellant, that other photographs of the scene were taken by the fire marshal at the same time as appellant’s photographs were taken, such evidence *205 would weigh heavily in favor of a finding that there are other means of obtaining the information.
Still to be decided is the question of when a trial court must conduct an inquiry into whether the information must be released. I would conclude that to protect the rights of the press as I have interpreted them, such an inquiry should take place only when a party is not able to present a prima facie showing of its case or defense without the disputed information. At that point, there would be justification in saying that the balance shifts in favor of the private litigant so that the trial court should then inquire whether the information goes to the heart of the case and whether the litigant has exhausted all other means of obtaining the information. If my view of this case ultimately prevails I would have the trial judge make a three-step inquiry:
1. Can the defendant establish a prima facie showing of arson with the information it has already obtained after conducting discovery? If the answer to this question is in the affirmative, there is no need to proceed further.
2. If the answer is in the negative, the trial court should then determine whether the pictures go to the heart of defendant’s case, i.e., are they a part of the elements of the defense or merely peripheral?
3. Has defendant exhausted all other means of obtaining the requested information?
Since the pictures in this case have already been turned over to defendant, I would make their admissibility at trial contingent upon the answers to the above questions being adverse to Booth’s position.
For this reason I need not comment extensively on In re Contempt of Stone, 154 Mich App 121 ; 397 NW2d 244 (1986), which also related to a grand jury subpoena. Contrary to defendant’s assertion that Stone holds that Branzburg denies any claim of privilege to a reporter, Stone in fact holds that a reporter does not have a privilege "unless the grand jury is not being conducted in good faith, the information hears 'only a remote and tenuous relationship to the investigation,’ or there is no 'legitimate need of law enforcement’ for the information.” 154 Mich App at 131 .
Democratic National Committee v McCord, 356 F Supp 1394 (D DC, 1973).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9732466. Public record. Not legal advice.