Petition — Brown v. Traub

Page

OPINIONS BELOW ........... 0 ee a |

er ne oa vd eeckeccue. 2

QUESTIONS PRESENTED ...................... 2

STATEMENT OF FACTS AND PROCEEDINGS... 3

CONSTITUTIONAL PROVISIONS INVOLVED .._ 7

REASONS FOR HEARING THIS CASE .......... 7

iS SS a er 28

I 29-34

CITATIONS

(TABLE OF AUTHORITIES)

CASES:

Alexander v. United States, 201 U.S. 117, 26 S.Ct. 356,

00 L.Ed. 686 (1906) ......................... 9,15

Amato v. Fellner, 4 Med. L. Rptr. 1552

a 26

Ammerman v. Hubbard Broadcasting, Inc., 91 N.M.

200, 572 P.2d 1258 (1977) ................. 12, 25,26

Baker v. F & F Investment, 470 F.2d 778

IS a 21, 22

Bankers Life & Casualty Co. v. Holland, 346 U.S. 379,

74 8.Ct. 145, 98 L.Ed. 106 (1953) ................ 15

Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33

L.Ed. 2d 626 (1972) .... 12, 16, 17, 18, 19, 20, 21, 22, 23

Bursey v. United States, 4 466 F.2d 1059

ES 22, 23, 24

Caldero v. Tribune Pub. Co. , 98 Idaho 288,

ee 17, 26

Carey v. Hume, 492 F.2d 631 (D.C. Cir. 1974) ... 20, 21, 26

i

Page

Cervantes v. Time, Ine., 464 F.2d 986 (8th Cir. 1972),

Cert. Den. 409 U.S. 1125 (1973) Poke ata. ae

Cobbledick v. United States, 309 U.S. 323, 60 S.Ct.

040, 84 L.Ed. 783 (1940) ........................ 9

Cohen v. Beneficial Industrial Loan Corp., 337 U.S.

941, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). 11, 14, 16

DiBella v. United States, 369 U.S. 121, 7 L.Ed. 2d

oes, Ge An, OT)... 15

Dow Jones & Company, Ine. v. Superior Court,

364 Mass. 317, 303 N.E. 2d 847 (1973)... 12, 25, 26

Risen v. Carlisle & Jacquelin, 417 U.S. 156, 94 8.Ct.

2140, 40 L.Ed. 2d 732 (1974) ................... 11

Ex Parte Fahey, 332 U.S. 258, 67 S.Ct. 1558,

Oe MA WEN EOE cs eee 8

Gillespie v. United States Steel Corp., 379 U.S. 148,

85 S.Ct. 308, 13 L.Ed. 24 199 (1964) ........... 11, 16

Grinell Corp. v. Hackett, 519 F.2d 595 (1st. Cir. 1975),

cert. den. 423 U.S. 1033, 46 L.Ed. 2d 407,

Oe Wie OOO CPF)... os... 15

- Goldfeld v. Post Publishing, 4 Med. L. Rptr. 1167

(Conn. Superior Ct., 1978) ..................... 26

Gulliver’s Periodicals, Ltd. v. Chas. Levy Cir. Co.,

455 FS 1197 (DCND Ill. 1978) .................. 26

Harper & Row Publishers, Inc. v. Decker,

425 F.2d 487 (7th Cir. 1970) .................... 8

Hart v. Playboy Enterprises, 4 Med. L. Rptr. 1616

Gee Ms I in Se ee. 12, 24, 26

Hartley Pen Co. v. United States District Court,

287 F.2d 324 (9th Cir.1961) ..................... 8

ll

Page

Heathman v. United States Dist. Ct., Cent. Dist. Cal.,

903 F.2d 1032 (9th Cir.1974) .................... 8

Miami Herald Publishing Company v. Tornillo, 418 U.S.

241, 99 S.Ct. 2831, 41 L.Ed. 2d 730 (1974) ...... 15, 16

Mills v. State of Alabama, 384 U.S. 214,

16 L.Ed. 2d 484, 86 S.Ct. 2831 (1966) ............. 16

Mize v. McGraw Hill, 5 Med. L. Rptr. 1156

be A | er 12, 24, 25, 26, 27

New York Times v. Jascalevitch, . ..U.S..... .

oe 9

New York Times yv. Sullivan, 376 U.S. 254, 84 S.Ct. 710,

11 L.Ed 2d 686, 95 A.L.R. 2d 1412 (1964) ......... 4

Rancho la Costa v. Penthouse, 4 Med. L. Rptr. 1564

pe ee 26

Sanderson v. Winner, 507 F.2d 477 (10th Cir. 1974)

Reet. ss ee ee. cc ek. 8

Sav-On Drugs, Ine. v. Superior Court of Los Angeles

County, 15 Cal. 3d 1, 123 Cal. Rptr. 283,

ee | a a 16

Schlagenhauf v. Holder, 379 U.S. 104, 85 S.Ct.

234, 13 L.Ed. 2d 152 (1964) ................... 8,15

Sierra Life Insurance v. Magic Valley N ewspapers,

4 Med. L. Rptr. 1689 (Idaho State District

coat ee ee 11

Silkwood v. Kerr-McGee Corp., 563 F.2d 433,

TE Sg eR eee ee 17

State ex rel Beacon Journal Pub. Co. v. Kainrad,

46 Ohio St. 2d 349, 348 N.E. 2d. 695 (1976) ........ 16

United States v. Hemphill, 369 F.2d 539 (4th Cir. 1966). 8

Winegard v. Oxberger, 258 N.W. 2d 847 (Iowa 1977 .. -

lil

UNITED STATES CONSTITUTION:

AmendmentI a WA 7

Amendment II. _- es ane 7

RULES AND STATUTES:

28 U.S.C. §1257

2B UAC. $190 .. 2... Nya 9

Rule 61, Federal Rules of Civil Procedure ............ 14

Rule 61, New Mexico Rules of Civil Procedure ..... 14,15

OTHER AUTHORITIES:

Developments in the Law - Discovery,

74 Harv. L. Rev. 940 3) Pe eee ae aes. 13, 14

iv

IN THE

Supreme Court of the United States

Octoser TERM, 1978

ROBERT A. BROWN, THOMPSON H. LANG,

ALBUQUERQUE PUBLISHING COMPANY (N.S.L.)

JOURNAL PUBLISHING COMPANY, a corporation,

JERRY CRAWFORD and WILLIAM 0. HUME,

Petitioners,

Wa-

HON. RICHARD B., TRAUB, District Judge,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT

OF THE STATE OF NEW MEXICO

Petitioners respectfully pray that a Writ of Certiorari

issue to review the Mandate of the Supreme Court of the

State of New Mexico entered on May 2, 1979.

OPINIONS BELOW

The Supreme Court of the State of New Mexico, in

denying Petitioners’ requested Writ of Prohibition and in

denying Petitioner’s Motion for a Rehearing, rendered no

formal opinion. Neither was any formal opinion issued by

the New Mexico District Court in which the case originated.

The orders entered by these Courts in connection with the

subject of this Petition are appended as Appendices A, B,

C and D. The letter opinion of the New Mexico District

Court is appended as Appendix E.

1

JURISDICTION

The Mandate of the Supreme Court of the State of New

Mexico which denied Petitioner’s application for a Writ of

Prohibition was entered on May 2, 1979. Petitioners timely

filed a Motion for Rehearing in accordance with Rule 19 (a)

of the New Mexico Rules of Appellate Procedure in civil

cases on May 10, 1979. The Supreme Court of the State of

New Mexico entered a mandate denying Petitioners’ Motion

for Rehearing on June 15, 1979,

The jurisdiction of this Court is invoked under 28

U.S.C. §1257(3).

QUESTIONS PRESENTED

1. May this Court grant immediate review of an Order

compelling discovery where meaningful appellate review of

the propriety of the discovery order may not be had at the

termination of the underlying case?

2. What showing must be made by a plaintiff in a libel

action in order to compel discovery of the confidential

sources of a news gatherer?

(a) Must plaintiff show that his interest in discovery

of the information outweighs defendant’s interest in pre-

serving the confidentiality of sources?

(b) Must plaintiff persuade the Court that the dis-

covery sought is so essential to the administration of civil

justice that the state has a compelling interest in allowing

such discovery?

(c) Must plaintiff show that he has taken reasonable

steps in an attempt to obtain the desired information from

other sources?

»

~

STATEMENT OF FACTS AND PROCEEDINGS

On June 13, 1975, William C. Marchiondo instituted a

libel action against the corporate publishers of the two daily

newspapers in Albuquerque, New Mexico, and various offi-

cers and employees thereof. A supplemental Complaint

alleging a new cause of action was filed on May 31, 1978.

Mr. Marchiondo, a prominent (as specifically alleged in

his Complaint) local attorney, alleged that four items pub-

lished by one or both of the Albuquerque daily newspapers

were defamatory and prayed for damages, both compensa-

tory and punitive, in an amount exceeding, depending upon

construction of the ad damnum allegations, eight million

dollars:

1. On Sunday, November 3, 1974, the Albuquerque

Journal, a daily newspaper of general circulation in Albu-

querque, published by the defendant, Journal Publishing

Company, printed an editorial announcing its support for

the Republican candidate in the upcoming gubernatorial

election. With respect to the Democratic candidate, the

editorial commented ‘‘. . . we question his continued asso-

ciation with Charlie Davis and Bill Marchiondo, prominent

Democrats adept at maneuvering in the public arena. Asa

free-lance lobbyist, Davis’ business is influence peddling.

As a criminal lawyer, Marchiondo thrives by having friends

in key places.’’

2. On October 27, 1974, the Albuquerque Journal pub-

lished a paid political advertisement submitted by the New

Mexico Republican Party in connection with the same elec-

tion. The advertisement stated that the Democratic candi-

date had many ‘‘cronies’’ who would be likely to assert

undue influence in his administration if he were elected.

The article specifically stated that ‘‘J erry Apodaca would

3

be the kind of governor who would appoint Billy Mar-

chiondo as chairman of the New Mexico Racing Commission.

That’s why we say he’s the man nobody can afford.’’ This

advertisement was published shortly afterward by the Albu-

querque Tribune, published by defendant, New Mexico State

Tribune Corporation. With respect to this cause of action

the Albuquerque Tribune filed a Third-Party Complaint

against the New Mexican Republican Party. This Third-

Party Complaint is not involved in the particular contro-

versy which is the subject of this Petition.

3. On December 26, 1974, the Albuquerque Journal

printed the following comment on an appointment to the

local district bench.

The politica! implications in MeBride’s appointment

bother us, as does his having received financial support

in at least one past election from well-known defense

attorney, William Marchiondo.

4. On March 26, 1977, the Albuquerque Journal pub-

lished an article originated by the Phoenix project of the

Investigative Reporters and Editors group. The headline

of this article was ‘‘Organized Crime Showing Interest in

New Mexico’’, and a photograph of Mr. Marchiondo ap-

peared immediately below this headline.

Defendants answered these allegations by admitting

publication of the articles in question but they denied that

the publications were defamatory, raised the defense of

truth as to the published statements or inferences, and as-

serted that Mr. Marchiondo was a public figure so as to bring

the action within the actual malice standard of New York

Times v. Sullivan, 376 U.S. 254, 11 L.Ed. 2d 686, 84 S, Ct.

710, 95 ALR 2d 1412 (1964).

The case then entered its discovery phase, in which the

4

questions which are the subject of this Petition arose, Mr.

Marchiondo propounded written Interrogatories to various

officers and employees of each newspaper requesting, among

other things, all sources of information which had been used

by the papers in preparing any article, including articles

which were not alleged to be defamatory and which were not

the subject of the action, which referred to Mr. Marchiondo,

either directly or by implication.* In addition, Mr. Mar-

chiondo issued a subpoena duces tecum to William Hume,

an investigative reporter for the Albuquerque Journal.

(Mr. Hume is not at this writing a named defendant; a

Motion is presently pending to add Hume as a named de-

fendant.) Mr. Hume was requested to bring with him to a

deposition all documents pertaining to Mr. Marchiondo

which he had written or investigated for the last five years,

*Typical of the interrogatories propounded by plaintiff Marchiondo to

the defendants, on August 26, 1977, were:

No. 27. “Have you ever received any information from any one in

any way connected with Seer’s Catalogue or Seer’s Rio Grande

Weekly regarding the plaintiff. If, so, please state:

-+- (3) The name and address of the person who supplied the

information.”

No. 45. “Please list every article published in your newspaper in

which William C. Marchiondo’s name was mentioned, either

directly or by innuendo; please include a copy of each of said

articles in your answer and for each article please state:

- + + g. all sources of information used in researching the

article. * * *”

No. 46. List all reporters, investigators or other sources employed by

you or known to you who have done research on William C.

Marchiondo. For each such source, please state:

(a) His or her name * * *”

No. 44. “Is there a file or files kept specifically on William C. Mar-

chiondo for use by your paper?

*** Also state:’’’

(e)Who is responsible for the information contained in each

particular document in said file or files.”

4)

and any documentation tending to implicate Mr. Marchiondo

in any legal activity.

Tn consultation with Mr. Hume and others, attorneys for

the Albuquerque Journal determined that compliance with

these broad requests would result in the disclosure of certain

sources who had requested that their names not be revealed

by the newspaper, although confidential sources were not

relied upon with respect to the preparation of the four

articles alleged to be libelous. Accordingly, defendants filed

objections to the Interrogatories calling for the disclosure

of confidential sources, and with respect to the deposition of

Mr. Hume, moved for a Protective Order which would have

excused Mr. Hume from bringing with him to the deposition

any document which revealed the identity of a confidential

source and would have limited the permissible subject of

oral examination so as to protect the identity of such

sources,

In a letter opinion filed January 15, 1979, the District

Judge ruled on the Objections to Interrogatories and the

Protective Order, denying any requested relief based on a

claim of privilege as to confidential sources. The Court sub-

sequently issued Orders specifically directing defendants to

_ answer Interrogatories as to confidential sources and re-

quiring Mr. Hume to produce documents, which implicate

confidential sources, at his deposition. Defendants peti-

tioned to the New Mexico Supreme Court for a Writ of Pro-

hibition against the enforcement of these Orders, which was

denied. A timely filed Motion for Rehearing on the re-

quested Writ of Prohibition was also denied.

The present standing of the case is this: Defendants

are under orders of the Trial Court to comply with the

requests of plaintiff for source information. Defendants

6

have supplied or are in the process of supplying all source

information which is not confidential and information as to

those confidential sources who have subsequently consented

to the disclosure of their identity. A Writ of Prohibition

sought by plaintiff in connection with a discovery question

unrelated to the subject of this Petition has been argued

and is awaiting decision in the New Mexico Supreme Court.

Other discovery is proceeding, and has given rise to several

pending Motions for Protective Orders and for compelled

answers. A hearing on the merits is presently set for Sep-

tember 4, 1979, but, in light of the various unresolved dis-

covery issues, a continuance has been requested by defend-

ants.

CONSTITUTIONAL PROVISIONS INVOLVED

Amendment I

‘*Congress shall make no law... abridging the freedom

... of the press;...”’

Amendment IT

“*... or shall any state deprive any person of life, lib-

erty, or property, without due process of law;...”’

REASONS FOR HEARING THIS CASE

This case presents two questions of substantial im-

portance to the legal community and the public generally,

one of which is a procedural question, the other is substan-

tive. It is necessary for this Court to act on each of these

questions because lower federal and state courts, have, for

want of a recent Supreme Court precedent, rendered con-

flicting decisions, and have given unjust and overboard ap-

plication to previous decisions of this Court.

The first of these questions, the procedural question,

goes to the reviewability (appealability) of the action of the

7

New Mexico Supreme Court in the present procedural set-

ting, which setting is the review of a discovery Order refus-

ing protection of an asserted newsman’s constitutional

privilege against disclosure of confidential sources in a

civil action.

This Petition, of course, seeks review of a denial of an

extraordinary writ, in this case denial of a Writ of Prohi-

bition, and the extraordinary writ was, in turn, sought in

the context of a discovery order. Petitioners readily con-

cede that an extraordinary writ is indeed reserved for the

extraordinary cases, Ex parte Fahey, 332 U.S. 258, 67 S.Ct.

1558, 91 L.Ed. 2041 (1947). THIS IS AN EXTRAORDI-

NARY CASE. It need not be a ‘‘cause celebre’’. Petition-

ers have urged continuously that they would have no ade-

quate remedy by appeal, that the order of the trial court,

in its extraordinary breadth, is an abuse of discretion, all of

which is coupled with the fact that the newsman’s privilege

has never been considered by this Court in the context of

civil litigation. Petitioners, therefore, rely upon Schlagen-

hauf v. Holder, 379 U.S. 104, 55 S.Ct. 234, 13 L.Ed.2d 152

(1964), and its progeny, in their attempt to prevent the

. rape of their asserted Constitutional privilege. For further

cases, approving use, to correct discovery order abuses, of

an extraordinary writ, see Hartley Pen Co. v. United States

District Court, 287 F.2d 324 (9th Cir., 1961) ; United States

v. Hemphill, 369 F.2d 539 (4th Cir., 1966); Harper & Row

Publishers, Inc. v. Decker, 423 F.2d 487 (7th Cir., 1970), aff.

per curiam, 400 U.S. 348, 91 S.Ct. 470, 27 L.Ed.2d 433

(1971) ; Sanderson v. Winner, 507 F.2d 477 (10th Cir., 1974),

cert. den. 421 U.S. 914 (1975); Heathman v. United States

District Court for Central District of California, 503 F.2d

1032 (9th Cir., 1974),

The jurisdiction of this Court is derived from 28 U.S.C.

§1257, which provides for review by appeal or certiorari

from ‘‘final judgments or decrees rendered by the highest

court in the state in which decision could be had ...’’ The

finality reqirement of 28 U.S.C.§ 1257 is subject to the same

considerations as the final decision requirement of 28 U.S.C.

§1291, governing interlocutory appeals. New York Times v.

Jascalevitch, .... U.S. ...., 98S. Ct. 3058 (1978).

Alexander v. United States, 201 U.S. 117 50 L. Ed. 686,

26 S. Ct. 356 (1906), sets forth the general proposition that

discovery orders were not ‘‘final’’ judgments so as to be

appealable prior to final disposition of the underlying case.

The reasoning behind this rule was developed in Cobbledick

v. United States, 309 U.S. 323, 84 L. Ed. 783 (1940) ;

Finality as a condition of review is an historic char-

acteristic of federal appellate procedure. It was written

into the first judiciary act and has been departed from

only where observance of it would practically defeat the

right to any review at all. Since the right to a judgment

from more than one court is a matter of grace and not

the necessary ingredient of justice, Congress from the

very beginning has, by forbidding piecemeal disposi-

tion on appeal of what for practical purposes is a single

controversy, set itself against enfeebling judicial ad-

ministration. Thereby is avoided the obstruction to just

claims that would come from permitting the harassment

and cost of a succession of separate appeals from the

various rulings to which a litigation may give rise from

its initiation to the entry of final judgment. Id. at 325-

326 (footnotes omitted).

These considerations of judicial economy and the avoid-

ance of delay and harassment indeed provide a compelling

rationale for the application of the finality rule, but the hold-

ing of Cobbledick does not exclude other considerations.

9

es

Due regard for efficiency in litigation must not be ear-

ried so far as to deny all opportunity for the appeal

contemplated by the statute. 7d. at 329.

The specific legal issues in this Petition concern the ap-

pealability of a discovery Order requiring, in a libel action,

disclosure of newsmen’s alleged confidential sources, and

the underlying substantive issue is the existence or non-

existence of any privilege against such disclosures. How-

ever, the practical issues inherent in the particular factual

situation out of which this Petition arises more vividly re-

veal Petitioner’s plight and, in turn, reveal the need for the

review here sought. The practicalities arise out of the fact

that the discovery ordered was not discovery of sources re-

lied upon in publishing the allegedly defamatory material,

rather, the order, in essence, directed discovery of any

source ever furnishing any information to the Petitioners

(defendants) concerning the libel plaintiff. The practical

issues presented for review can, thereto, be stated as

follows:

1) Where members of the news media are sued for

defamation, are all confidential sources open to discovery

regardless of the fact that such confidential sources fur-

_ nished nothing to the defendants which was relied upon to

publish that which is alleged to have been defamatory, and

2) Where the decisions of the various courts of the

United States are hopelessly split as to the existence of any

First Amendment qualified privilege against disclosure of

media confidential sources, must a media defendant subject

itself to criminal contempt and default judgment to seek

review of an unbridled inquiry into the identity of confi-

dential sources, which sources were not relied upon in

alleged defamatory publications?

10

In short, the practical ramifications of a denial of the

instant Petition is to permit any person, criticized in some

fashion by the news media, to simply file a multimillion

dollar libel action, immediately file a sweeping set of Inter-

rogatories demanding disclosure of the identity of sources

of information ever furnished to the libel defendant con-

cerning the plaintiff, regardless of whether relied upon in

the allegedly defamatory publication, and immediately force

the media defendant into a criminal contempt and default

judgment posture by the defendant’s refusal to breach its

covenant of confidence with its sources.

It is in this context that Petitioners here contend that

the requirement of ‘‘finality’’, ordinarily a bar to the appeal-

ibility of a discovery Order, should here be held inapplicable

under the well established principle that the requirement of

finality be given a ‘‘practical rather than a technical con-

struction’’. Cohen v. Beneficial Industrial Loan Corp., 337

U.S. 541, 93 L. Ed. 1528, 69 S. Ct. 1221 (1949) ; Gillespie v.

United States Steel Corp., 379 U.S. 148, 13 L.Ed. 2d 199, 85

S.Ct. 308 (1964) ; Hisen v. Carlisle & Jacquelin, 417 U.S. 156,

40 L. Ed. 2d 732, 94 S. Ct. 2140 (1974).

The spectre of a default judgment for ruinous damages

is not an imaginary evil, as amply demonstrated by the

recent default judgment entered in Idaho, in a libel case,

and as a result of refusal to divulge confidential sources,

and for the eye-opening sum of 1.9 million dollars. Sierra

Life Insurance v. Magic Valley Newspapers, 4 Med.L. Rptr.

1689 (Idaho State District Court 1978). It is well worth not-

ing that in that case the default judgment was entered

despite a specific holding that the Plaintiff was a public fig-

ure and that plaintiff had utterly failed to demonstrate

‘*constitutional malice’’. [In the instant case, as is set forth

11

in the Statement of the Case, supra, the defendants have

asserted that the plaintiff is a ‘‘public figure’’ but that issue

has not yet been determined by the trial court.]

Petitioners’ dilemma is rendered all the more acute by

the tact that this Court has never addressed the issue of a

qualified newsman’s privilege in a civil case, and its decision

in a criminal law, grand-jury context, Branzburg v. Hayes,

408 U.S. 665, 92 S. Ct. 2646, 33 L. Ed. 2d 626 (1972), has

been cited both as a positive denouncement of any such

privilege, Dow Jones & Company v. Superior Court, 364

Mass. 317, 303 N.E. 2d (1973), including Petitioner’s juris-

diction, Ammerman v. Hubbard Broadcasting, Inc., 91 N.M.

290, 527 P. 2d 1258 (1977), and, on the other hand, as the

beacon of truth that there is such a privilege, Hart v. Play-

boy Enterprises, 4 Med. L. Rptr. 1616 (D. Kan. 1978) ; Mize

v. McGraw Hill, 5 Med. L. Rptr. 1156 (S.D. Tex. 1979).

It is into this sea of uncertainty that Petitioners must

apprehensively attempt to navigate. Nor are the shorelines

by any means clearly discernible. If caught by the Seylla of

Dow Jones or Ammerman on the one side, the Petitioners

face anything from a monstrous default judgment to volun-

teering themselves to the onus of criminal contempt, before,

says the Supreme Court of New Mexico, they can urge be-

fore an appellate tribunal that has already decided other-

wise, (See Ammerman, supra) that the United States Con-

stitution provides a qualified constitutional privilege. Peti-

tioners therefore, by this Petition steer to the opposite

shore, engulfed in the mist of Branzburg, hoping that they

are not in the Straits of Messina at all.

To bar an appeal under the circumstances by the ‘‘final-

ity rule’’, would be to reserve the cloak of the Constitution

12

to the most audacious or the most » »~ ay, who would risk

their criminal-free reputation or ..eir livelihood, or both,

in order to assert what they believe, and numerous courts

have agreed upon, is a Constitutionally established privilege

necessary to a free press and an informed public. To hold

that there is a plain and adequate remedy by subjecting it-

self to a default or to criminal contempt, under these cir-

cumstances, where the lawfulness of the conduct has never

been defined and is totally immersed in contradictory pro-

nouncements, should provide the framework of great and

immediate public concern in which practicalities outweigh

the technicalities of any ‘‘finality rule’’ argument.

The practical desirability of permitting an appeal in the

context of a constitutional-criminal contempt confrontation

has been previously articulated:

When discovery is compelled over a claim of privilege,

the potential injury would seem sufficiently serious to

allow interlocutory review. Both the social policy rep-

resented by a grant of privilege and the benefit con-

ferred on the privilege-holder are undermined by pre-

trial procedures in which a person may be forced to

give up information without opportunity to test on

appeal the validity of his objection. Effective protec-

tion of the privilege would seem to outweigh the delay

and expense of allowing an appeal. Developments in the

Law-Discovery, 74 Harv. L. Rev., 940, 994 (1961).

The preceding arguments of Petitioners are addressed

to a general desirability of appealability, although couched

in terms of the unusual breadth of the discovery order

sought to be appealed from and its practical effect of any

semblance of privilege. The argument, as suggested by the

author of the Harvard Law Review article just quoted, fits

a more specifically defined exception to the ‘‘finality rule’’,

13

which is the so-called ‘‘collaterai - orders doctrine’’. Under

this doctrine, first announced in Cohen v. Beneficial Indus-

trial Loan Corp., 337 U.S. 541, 69 S. Ct. 1221, 93 L. Ed. 1528

(1949), when a trial court order disposes of an issue which

is collateral to the subject matter of the litigation and which

will expose a person to irreperable injury if appeal is post-

poned to the final decision, an immediate appeal is permis-

sible.

As to the element of irreperable injury:

The irreperable injury requirement would appear to be

satisfied in the case of orders compelling discovery over

a claim of privilege. Developments in the Law-Discov-

ery, supra, at 1000.

As to the ‘‘collateral’’ element, this Court has defined

collateral orders as:

Matters embraced in (a) decision (which are) not of

such ... nature as to affect, or to be affected by, deci-

sions of the merits of (the) case. Cohen v. Beneficial

Industrial Loan Corp., supra, at 546.

Clearly, the granting of discovery of privileged sources,

who were not even established as having been relied upon in

_ publication of the allegedly defamatory matter, cannot rea-

sonably be anticipated as reversible error, should plaintiff

prevail in his libel action. In this regard New Mexico has

substantially adopted Rule 61 of the Federal Rules of Civil

Procedure, as follows:

Rule 61. Harmless error.

No error or defect in any ruling or order or in anything

done or omitted by the court or by any of the parties is

ground for granting a new trial or for setting aside a

verdict or for vacating, modifying or otherwise disturb-

ing a judgment or order, unless refusal to take such

14

action appears to the court inconsistent with substan-

tial justice. The court at every stage of the proceeding

must disregard any error or defect in the proceeding

which does not affect the substantial rights of the

parties.

The collateral source rule is thus generally understood

to have three elements, (1) separability, (2) importance, and

(3) urgency. Grinnell Corp. v. Hackett, 519 F. 2d 595 (1st

Cir. 1795), cert den. 423 U.S. 1033, 46 L. Ed. 2d 407, 96 S. Ct.

566 (1975). This is, of course, why Petitioners discuss under

this heading both the procedural and the substantive issues,

although both partake of the necessary importance and ur-

gency. Each element is here present. The finality rule, if

strictly applied as under Alexander v. United States, supra,

would, in effect, direct Petitioners to seek later relief by ap-

peal, presumably from a contempt citation or a default

judgment. The present situation is, therefore, analogous to

the finality rule normally observed as a condition precedent

toa writ of mandamus. Bankers Life € Casualty Co. v. Hol-

land, 346 U.S. 379, 74S. Ct. 145, 98 L. Ed. 106 (1953). How-

ever, where there exists a threat of an invasion of personal

rights, coupled with a lack of guiding precedent, or, in effect,

a matter of first impression is involved, this Court has not

hesitated to set at rest, by accepting appeal, issues of ex-

treme importance to the public and bar. Schlagenhauf v.

Holder, 379 U.S. 104, 13 L. Ed. 2d 152, 85 S. Ct. 234. Cer-

tiorari is peculiarly appropriate where there are clear con-

flicts among lower courts. DiBella v. United States, 369

U.S. 121, 7 L. Ed. 2d 614, 82 S. Ct. 654 (1962). That matters

under the First Amendment have been long considered of

such importance as to leave them unanswered as intolerable,

is well established. Miami Herald Publishing Company v.

Tornillo, 418 U.S. 241, 94 S. Ct. 2831, 41 L. Ed. 2d 730

15

(1974). Mills v. State of Alabama, 384 U.S. 214, 16 L, Ed. 2d

484, 86 S. Ct. 2831 (1966).

Likewise, to force a criminal contempt citation, or de-

fault judgment, as a condition precedent to appealability of

an assertion of a First Amendment right should also be

viewed as intolerable. State ex rel Beacon Journal Pub. Co.

v. Kainrad, 46 Ohio St. 2d 349, 348 N.E. 2d 695 (1976). See

also, Sav-On Drugs, Inc. v. Superior Court of Los Angeles

County, 15 Cal. 3d 1, 123 Cal. Rptr. 283, 538 P. 2d 739 (1975).

In summary, the finality rule should not bar review in

the present case (a) under the rule of practical rather than

technical construction, announced in Cohen and Gillespie,

supra, (b) under the collateral order doctrine of Cohen,

Supra, and (c) under the doctrines of First Amendment first

impression importance recognized in Miami Herald and

Mills, supra, or of first impression and importance to the

bar and to the public inherent in Schlagenhauf, supra.

Petitioner, would, in fact urge adoption of a clear cut

rule of appealability of discovery motions, or at minimum,

no absolute bar of appealability, where the discovery order

sought to be reviewed involves: (a) the assertion of a con-

stitutional privilege against disclosure, and (b) a matter of

first impression in this Court, concerning which there is sub-

stantial conflict in the lower courts.

Petitioner turns now to the merits in this case.

The possibility of the existence of a qualified testimon-

ial privilege for news gatherers was addressed by this Court

for the first and only time in Branzburg v. H ayes, 408 US.

665, 92S. Ct. 2646, 33 L. Ed. 2d 626 (1972). This plurality

opinion has spawned an extraordinary amount of confusion

16

SS eee

among state and federal courts alike in cases involving crim-

inal matters as involved in Branzburg, and also in civil

Cases,

Lower federal and state courts which have attempted to

interpret Branzburg’s holding in the context of civil litiga-

tion, particularly libel actions, have reached widely varying

results. In Caldero v. Tribune Pub. Co., 98 Idaho 288, 562,

P. 2d 791 (1977), the Idaho Supreme Court concluded:

Therefore, our reading of Branzburg v. Hayes .. . is

to the effect that no newsman’s privilege against dis-

closure of confidential sources founded on the First

Amendment exists in an absolute or qualified version.

The only restrictions against compelled disclosure ap-

pear to be at those cases where it is demonstrably in-

tended to unnecessarily harass members of the news

media on a broad scale by means of having an unneces-

sary impact on protected rights of speech, press or

association.

On the other hand, the Tenth Circuit Court of Appeals has

taken the attitude that an existence of a qualified privilege

is ‘‘no longer in doubt’’ after Branzburg. Silkwood v. Kerr-

McGee Corp., 563 F. 2d 433 (10th Cir., 1977), at 437.

The divergent, and in fact diametrically opposed

approaches in the attempted application of this Court’s

holding in Branzburg impels one to conclude that further

guiding light from this Court is sorely required. Petitioner

respectfully submits that the expansive interpretation of

Branzburg as denying altogether the existence of a news

gatherer’s privilege, as typified by the Idaho Supreme

Court’s decision in Caldero, supra, has created substantial

and undesirable inroads into the constitutionally protected

freedom of the American press. Accordingly, petitioner

prays that this Court use this opportunity to exand upon

17

4

;

its earlier holding in Branzburg in order to avert this mis-

chief.

The decision below lets stand an unwarranted infringe-

ment of an intrusion into the ability of the news media to

vigilantly and effectively gather news, with absolutely uo

showing that there is an overriding state interest justifying

such intrusion and infringement, and with no inquiry into

any alternative but to require compelled disclosure of the

newsman’s confidential source. The New Mexico Supreme

Court did not write an opinion explaining its failure to in-

tervene and to prevent the District Court from making such

an infringement, except to obliquely suggest that Petitioners

had an adequate remedy by appeal, without any attempt to

even suggest what appellate avenue it thought adequate.

The starting point for any inquiry into the existence of |

a qualified news gatherer’s privilege against disclosure of

confidential sources is Branzburg v. Hayes, 408 U.S. 665, 92

S. Ct. 2646, 33 L. Ed. 2d 626 (1972). An examination of the

four opinions filed shows that in spite of the fact that this

Court voted 5-4 to uphold the compelled disclosure of con-

fidential sources, in the context of a grand jury inquiry, that

some qualified privilege against disclosure does exist. Jus-

tice White, writing for the plurality, holds that:

On the records now before us we receive no basis for

holding that the public interest in law enforcement and

in insuring effective grand jury proceedings is insuffi-

cient to override the consequential, but uncertain, bur-

den on news gathering that is said to result from insist-

ing that reporters, like other citizens, respond to

relevant questions put to them in the course of a valid

grand jury investigation or criminal trial. 408 U.S. at

690-91.

Justice White noted, however, that a newsman’s obligation

18

to appear and testify before a grand jury is not beyond

challenge:

Grant jury investigations, if instituted or conducted

other than in good faith, would pose wholly different

issues for resolution under the First Amendment. 408

U.S. at 770.

In his concurring opinion, Justice Powell acknowledged

the general obligation of news reporters to testify before

grand juries, even regarding their confidential news sources.

Justice Powell, however, expanded the scope of the First

Amendment protection against disclosure of news sources

beyond the situation where a grand jury is being conducted

in good faith. He noted that:

The asserted claim to privilege should be judged on its

facts by the striking of a proper balance between the

freedom of the press and the obligation of all citizens

to give relevant testimony with respect to criminal con-

duct. Id. at 710.

Beyond this requirement that, on case-by-case basis, the

competing interests of disclosure and confidentiality be bal-

anced, Justice Powell stated that a newsman might seek a

motion to quash or a protective order whenever he was:

... Called upon to give information bearing only a re-

mote and tenuous relationship to the subject of the

investigation, or if he has some other reason to believe

that this testimony implicated confidential news source

relationships without legitimate need of law enforce-

ment.

Thus, although Justice White’s plurality opinion would re-

quire that a newsman testify concerning confidential news

sources before grand juries, save where the grand jury’s

investigation is conducted in bad faith, Justice Powell’s

concurring opinion would accord greater protection against

19

disclosure by requiring, after the competing interests have

been weighed, the showing of sufficiently compelling state in-

terest in disclosure and a showing that the information

sought to be disclosed is relevant to the subject of the grand

jury’s criminal investigation. In these respects, Justice

Powell’s concurring opinion is similar to Justice Stewart’s

dissenting opinion, where he urged, as a precondition to

disclosure, a showing of: (1) relevance; (2) exhaustion of

alternative sources for the information sought; and (3) a

compelling state interest. Thus, the fact that Branzburg

was decided in the context of a grand jury’s investigation

of a newsman’s actual observation of criminal conduct, and

the nature of Justice Powell’s special concurring opinion,

leaves the precedential value of Branzburg in civil litigation

very uncertain.

Judicial decisions subsequent to Branzburg, make it

clear the Courts have, in the area of civil litigation, dis-

cerned that Branzburg does not preclude an inquiry into a

qualified privilege. In Cervantes v. Time, Inc., 464 F. 2d

986 (8th Cir., 1972), cert. den. 409 U.S. 1125 (1973), a civil

libel action wherein plaintiff, the mayor of St- Louis, sought

disclosure of defendant’s confidential sources, the 8th Cir-

cuit Court of Appeals emphasized the limited scope of this

Court’s holding in Branzburg:

The Court was not faced with and, therefore did not

address, the question whether a civil libel suit should

command the quite different reconciliation of conflict-

ing interests pressed upon us here by the defense. 464

F. 2d at 993, n.9.

In another civil libel action, Carey v. Hume, 492 F, 2d,

631, 635-636 (D.C. Cir., 1974), the District of Columbia Cir-

cuit Court of Appeals stated:

20

[A]ppellant was content to present the case to us upon

the theory that the First Amendment left no room, un-

der any circumstances, for compelling a newsman to

indentify his source. That is clearly not the law after

Branzburg with respect to criminal proceedings, and it

appears to us that Branzburg, in language, if not in

holding, left intact, insofar as civil litigation is con-

cerned, the approach ... that the court will look to the

facts on a case-by-case basis in the course of weighing

the need for the testimony in question against the claims

of the newsman that the publie right to know is im-

paired.

And, in a footnote:

Although it is certainly necessary to consider carefully

the emphasis in Branzburg upon the public interest in

the giving of testimony, we do not believe that it auto-

matically controls this case. This is a civil libel suit

rather than a grand jury inquiry into crime, and the

dispute over disclosure is between the press and the

government. This difference is of some importance,

since the central thrust of Justice White’s opinion for

the court concerns the traditional importance of grand

juries and the strong public interest in the effective

enforcement of the criminal law. Justice White also

relied on the various procedures available to prosecu-

tors and grand juries to protect informants and on

careful use by the government of the power to compel

testimony. Private litigants are not similarly charged

with the public interest and may be more prone to seek

wholesale and indiscriminate disclosure. 492 F. 2d at

636, n. 6.

In another civil libel action, Baker v. F & F Investment,

470 F. 2d 778 (2d Cir., 1972), cert. den. 411 U.S. 966 (1973),

the Second Circuit Court of Appeals directly addressed the

weight to be given Branzburg in a civil context:

Manifestly, the [Supreme] Court’s concern with the

21

integrity of the grand jury as an investigatory arm of

the criminal justice system distinguishes Branzburg

from the case presently before us. If, as Mr. Justice

Powell notes in that case, instances will arise in which

First Amendment values outweigh the duty of the jour-

nalist to testify even in the context of a criminal investi-

gation, surely in civil cases, courts must recognize that

the public interest in non-disclosure of journalists’ con-

fidential news sources will often be weightier than the

private interest in compelled disclosure ... 470 F. 2d at

784-785.

In accord with this interpretation limiting the scope of

Branzburg’s applicability, even in the grand jury context,

is the case of Bursey v. United States, 466 F. 2d 1059 (9th

Cir., 1972) Rehearing Denied, 466 F. 2d 1090 (1972). In this

case, reporters for the Black Panther Party’s newspaper

were held in contempt for refusing to answer questions pro-

pounded by a federal grand jury. The Ninth Circuit Court

of Appeals held that the witnesses could be compelled to

answer questions relevant to the subject matters of the

criminal investigation for which the witnesses received

immunity. The reporters, therefore, were required to testify

concerning the presence of illegal weapons at Panther head-

quarters and other criminal activity which they may have

directly observed. The court held, however, that they were

not required to answer inquiries about the identity of per-

sons with whom the witnesses were associated either on the

newspaper or in the Black Panther party itself, even though

the answers to these inquiries ‘‘might have something

vaguely to do with conduct that might have criminal con-

sequences.’’ 466 F. 2d at 1091.

In so ruling, the court applied a balancing test requiring

as a precondition to compel disclosure of the identity of con-

fidential news sources and other associates, a showing of a

22

compelling state interest, relevance, and exhaustion of alter-

native sources. The court specifically articulated the evi-

dentiary showing necessary to compel disclosure:

When the collision [between government activity and

First Amendment rights] occurs in the context of a

grand jury investigation, the government’s burden is

not met unless it establishes that the government’s in-

terest in the subject matter of the investigation is

‘immediate, substantial, and subordinating’, that there

is a ‘substantial connection’ between the information it

seeks to have the witness compelled to supply and the

overriding governmental interest in the subject matter

of the investigation, and that the means of obtaining

the information is not more drastic than necessary to

forward the asserted. 446 F. 2d at 1083.

Moreover,

[t]he fact alone that the governmental has a compelling

interest in the subject matter of a grand jury investiga-

tion does not establish that it has any compelling need

for the answers to any specific questions. The court

must decide whether the government has carried its

burden almost question by question before it can compel

answers. Id. at 1086.

The Bursey decision was undoubtedly written prior to this

Court’s decision in Branzburg, for it was released the fol-

lowing day. In its Opinion on the Petition for Rehearing,

subsequently filed by the government, the Court stated that

although ‘‘news gathering was never a real issue here’’, 466

F’. 2d 1090, n. 1, the decision in Branzburg is applicable and

does not dispense with the need for balancing the competing

interests on a case-by-case basis:

First, Branzburg, Pappas, and Caldwell are not incon-

sistent with either our reasoning or the result we have

reached....

Although there is some language in Mr. Justice White’s

23

opinion in Branzburg, (408 U.S. at 665, 92 S. Ct. at 2646)

implying that a grand jury investigation carries with it

ingredients that may favor balance for the government

as agaiast the First Amendment, the passage does not

purport to disavow the balancing standares enunciated

in such cases as DeGregory v. Atty General of New

Hampshire (1966), 383 U.S. 825, 86 S. Ct. 1148, 16 L. Ed.

2d 292; Gibson v. Florida Legislative Investigation

Committee (1963) 372 U.S. 539, 83 S. Ct. 889, L. Ed. 2d

929, and Bates v. Little Rock (1960), 361 U.S. 516, 80

S. Ct. 412, 4 L.Ed. 2d 480... [Wle have concluded that

the balance we struck is not impaired by Branzburg.

Id. at 1091.

In Hart v. Playboy Enterprises, 4 Med. L. Rptr. 1616

(D. Kan. 1978), also a libel action, the libel defendants were

held to be insulated from disclosure from confidential

sources, whose identities were sought in written interroga-

tories, under an express holding that a qualified privilege

exists, unless and until the plaintiff had shown a substantial

need for preparation of the plaintiff’s case, and inability

without undue hardship to obtain the substantial equivalent

by other means.

In the recent case of Mize v. McGraw-Hill, 5 Med. L.

Rptr. 1156 (S.D. Tex. 1979), the trial court after reviewing

Branzburg and subsequent cases, enumerated reasonable

requirements to be met by an allegedly libeled plaintiff be-

fore the discovery of confidential sources is compelled:

It is apparent from the state of this record that Mr.

Mize seeks to compel disclosure in this instance as a

preliminary discovery matter rather than as a ‘last re-

sort’. There is no evidence in the record of attempts by

this plaintiff to discover facts which would prove or

lead to proof of the required elements of this claim.

None of the courts which have ordered disclosure of a

confidential news source have done so on the basis of a

24

relatively barren recerd such as this in the form of an

‘advance ruling’. Such paramount competing interests

as freedom of the press and the plaintiff’s right to de-

velop his case cannot be weighed and balanced in a

vacuum. There has been no showing of necessity, as

required by Garland [v. Torre 259 F.2d 545 (2n Cir.),

Cert. Denied, 358 U.S. 919 (1958) ], only plaintiff’s un-

supported protestations of need which clearly do not

justify so drastic an incursion into First Amendment

processes as the compulsory disclosure of a news re-

porter’s confidential source. Furthermore, there has

been no showing that the identity of a news source goes

to the heart of the plaintiff’s claim, or that alternative

sources had been exhausted. For these reasons, plain-

tiff’s motion to compel will be denied.

On the other hand other jurisdictions, including New

Mexico, in the specific context of libel litigation, have con-

cluded that there is no newsmen’s confidential source privi-

lege — period. Thus in Ammerman v. Hubbard Broadcast-

ing, Inc., 91 N.M. 250, 572 P.2d 1258 (1977), where four

deputy sheriffs suing a radio station for allegedly defama-

tory radio broadcasts, sought to compel disclosure of identi-

ties of sources whose information was relied upon in making

the broadcast, the Court of Appeals of New Mexico has

flatly stated:

The First Amendment does not grant a broadcaster any

privilege, qualified or absolute, to refuse to reveal con-

fidential information which is admittedly relevant to a

court proceeding. 91 N.M. at page 257.

To the same effect is Dow Jones & Company, Inc. v.

Superior Court, 364 Mass. 317, 303 N.E. 2d 847 (1973).

Therefore, in cases specifically involving alleged de-

famation, and where defendants’ confidential sources have

25

been sought, New Mexico,“ Massachusetts,” and Idaho®

state court decisions have declared that there is no privilege

whatsoever, and, therefore, no balancing of interests has

been undertaken. To the contrary are decisions from the

United States District Court, District of Kansas,“ the

United States District Court, Southern District of Texas,

the United States Court of Appeals, District of Columbia

Circuit,“ a Connecticut Superior Court” and the Cali-

fornia Superior Court which have all determined that a

qualified privilege exists. In summary, three jurisdictions

have determined that there is no privilege, five jurisdic-

tions have determined otherwise.

Privilege has, of course, been found to exist in favor of

non-party newsmen. See e.g. Winegard v. Oxberger, 258

N.W. 2d 847 (Iowa 1977); Gulliver’s Periodicals, Ltd. v.

Ghas. Levy Cir. Co., 455 F.S. 1197 (D.C. N.D. IIL, 1978) ;

Amato v. Fellner, 4 Med. L. Rptr. 1552 (Wise. Dist. Ct.

1978).

In the istant case, unlike the here challenged cases of

Ammerman, Dow Jones and Caldero, the court did not even

require that the plaintiff demonstrate that the confidential

sources contributed any information even relied upon, much

less were quoted or paraphrased, in the allegedly defama-

tory publication. Rather in the instant case, the plaintiff’s

interrogatories were directed to any facts defendants had

(1) Ammerman v. Hubbard Broadcasting, Inc., supra.

‘2) Dow Jones & Company, Inc. v. Supreme Court, supra

(3) Caldero v. Tribune Pub. Co., supra.

(4) Hart v. Playboy Enterprises, supra.

(5S) Mize v. McGraw-Hill, supra.

(6) Carey v. Hume, supra.

(7) Goldfeld v. Post Publishing, 4 Med. L. Rptr. 1167 (Conn. Superior Ct.

1978).

(8) Rancho La Costa v. Penthouse, 4 Med. L. Rptr. 1564 (Cal. Superior Ct.

1978).

26

RN A cerns tots Es

concerning plaintiff, and any source of such facts, regardless

of whether any such facts were relied upon or claimed to

have been relied upon in publishing the allegedly defama-

tory materials.

As in Mize, there is no evidence in the record of the

instant case to indicate that the trial court had any basis

on which to balance the interests of petitioner in preserving

the confidentiality of its news sources against the benefit to

respondent in obtaining the information. There has been

no showing that the requested information goes to the heart

of the underlying libel action, and no record of any effort

made by respondent to obtain the information by any other

means. Accordingly, the court should take this opportunity

to expressly clarify the principle that news gatherers have

a qualified privilege against the disclosure of confidential

sources which should be weighed against the interest served

by allowing discovery of such sources. It must be made clear

that the confidences of a news gatherer will not be breached

upon the mere unsupported allegation of an opposing civil

litigant that such information is relevant; to preserve the

integrity of the First Amendment, the court must take the

position that such confidences will be breached only when it

can be shown that justice requires such disclosure.

CONCLUSION

For the reasons aforesaid, it is respectfully prayed that

a Writ of Certiorari be granted to review the Mandate of

the Supreme Court of the State of New Mexico.

RESPECTFULLY SUBMITTED,

ERIC D. LANPHERE

JOHNSON AND LANPHERE, P.C.

Attorneys for Petitioners

6400 Uptown Blvd., Suite 200-West

Albuquerque, New Mexico 87110

(505) 881-3333

28

AppENpIx A

IN THE SUPREME COURT OF THE

STATE OF NEW MEXICO

Wednesday, May 2, 1979

NO. 12,488

ROBERT A. BROWN, et al.,

Petitioners,

Vs. Original Prohibition Proceeding

HON. RICHARD B. TRAUB,

District Judge,

Respondent.

This matter coming on for consideration by the Court

upon petition for writ of prohibition, and the Court having

considered said petition and being sufficiently advised in the

premises ;

NOW, THEREFORE, IT IS ORDERED that petition

for writ of prohibition be and the same is hereby denied.

APPENDIX B

IN THE SUPREME COURT OF THE

STATE OF NEW MEXICO

Tuesday, June 12, 1979

NO. 12,488

ROBERT A. BROWN, et al.,

Petitioners,

Vs. Original Prohibition Proceeding

HON. RICHARD B. TRAUB,

District Judge,

Respondent.

This matter coming on for consideration by the Court

upon motion of Petitioners for a rehearing, and the Court

having considered said motion and being sufficiently advised

in the premises.

NOW, THEREFORE, IT IS ORDERED that motion

of Petitioners for rehearing be and the same is hereby

denied.

30

APPENDIX C

STATE OF NEW MEXICO

COUNTY OF BERNALILLO

IN THE DISTRICT COURT

WILLIAM C. MARCHIONDO,

Plaintiff,

VS. No. CV 75-02838

ROBERT A. BROWN, et al.,

Defendants.

ORDER UPON OBJECTIONS TO

INTERROGATORIES

The objections of Defendants Thompson H. Lang,

Robert A. Brown, William C. Hume and Jerry Crawford

having come on before the Court, the Court being fully ad-

vised in the premises, having considered the arguments of

counsel and the memorandum briefs submitted in support,

and otherwise being fully advised in the premises, and be-

lieving that the objections are well taken in part and not well

taken in part, NOW THEREFORE:

IT IS HEREBY ORDERED, DECREED AND AD-

JUDGED, as follows:

(1) Defendants objections to Plaintiff’s interrogatories

calling for thoughts, opinions or editorial judgments are

sustained pending the U.S. Supreme Court’s decision in

Herbert v. Lando, unless required be ruled upon in the event

the trial of this cause occurs prior to the said decision, in

which event the Court will rule, upon application by Plain-

tiff.

(2) Defendants Brown in directed and within fifteen

days hereof shall answer Plaintiff’s interrogatories num-

bered 31(d) ; 32(b) ; 33(b) ; 33(e) ; 35; 53(g¢) ; 54; 61(b) and

61(c).

(3) William C. Hume is directed and within fifteen days

hereof shall answer Plaintiff’s interrogatories numbered

21(b) and 21(e).

IT IS SO ORDERED.

31

APPENDIX D

STATE OF NEW MEXICO

COUNTY OF BERNALILLO

IN THE DISTRICT COURT

WILLIAM C. MARCHIONDO,

Plaintiff,

vs. No. CV 75-02838

ROBERT A. BROWN, et al.,

Defendants.

ORDER DENYING DEFENDANT WILLIAM (C.

HUME’S MOTION TO QUASH SUBPOENA

DUCES TECUM AND GRANTING MOTION

FOR PROTECTIVE ORDER IN PART

The Motion of Defendant William C. Hume to Quash

Subpoena Duces Tecum, or for a Protective Order having

come on before the Court for hearing; the Court having

considered the arguments of counsel and the memorandum

briefs, and believing that the Motion to Quash is not well

taken and should be denied and that the Motion for a Pro-

tective Order is well taken in part, NOW THEREFORE,

IT IS HEREBY ORDERED, DECREED AND AD-

JUDGED as follows:

(1) That the said Defendant’s Motion to Quash is

denied;

(2) The Motion for a Protective Order is granted in

the following particulars:

(a) The duces tecum portion of the Subpoena shall

be limited to times prior to the date of publication of the

libelous articles.

(b) No documents shall be produced upon which

an attorney-client privilege or work product is claimed,

however, they shall be identified sufficiently to alert the

Court as to their nature so that an appropriate ruling can

be made if necessary. Any questions propounded to Mr.

William C. Hume to which objection is made upon this basis,

or document to which production is sought and to which

32

objection is made upon this basis shal] be subsequently ruled

upon by the Court, if so requested by Plaintiff, after an in

camera inspection thereof.

(c) That portion of the Protective Order seeking

non-disclosure based on confidential sources is denied.

(d) That portion of the Protective Order seeking

non-disclosure based on mental thoughts, opinions or con-

clusions which led to editorial judgments is granted, without

prejudice to the Plaintiff, until the U.S. Supreme Court

rules in the case of Hubert v. Lando, unless this action pro-

ceeds to trial before the case is decided in which event the

Court shall rule further.

(e) Defendant Hume shall be required to produce

such documents or other requested items as shall be in his

possession or under his control.

IT IS SO ORDERED.

33

APPENDIX E

STATE OF NEW MEXICO

SECOND JUDICIAL DISTRICT

LETTER OPINION OF DISTRICT COURT

January 15, 1979

Re: William C. Marchiondo vs. Robert A. Brown, et al.

Cause No. 75-02838

Gentlemen:

The Court has reviewed the memorandum briefs sub-

mitted herein and rules as follows:

Objections to Interrogatories

a) Insofar as interrogatories call for thoughts, opin-

ions and conclusions which led to editorial judgments, the

Court will defer ruling until the U.S. Supreme Court rules

in the case of Herbert v. Lando, unless required to rule

sooner in the event the instant case goes to trial prior to the

Herbert v. Londo decision. If counsel cannot agree which

interrogatories fit into this category, the Court will conduct

a further hearing and make this decision.

b) All objections based on claim of privilege by a news-

man not to divulge his confidential sources are denied.

c) The defendant’s objections as to the three items

claimed to be attorney’s work product are sustained, subject

to the agreements contained in defendant’s brief.

William Hume — Subpoena Duces Tecum

a) The motion to quash is denied.

b) The motion for a protective order is granted in the

following particulars:

1. The duces tecum portion of the subpoena shall

be limited as to time prior to the date of publication of the

alleged libelous articles.

2. No documents shall be produced upon which an

attorney-client privilege/or attorney work product is

claimed, however, they shall be identified sufficiently to alert

the Court as to their nature so that an appropriate ruling

can be made, if necessary.

34

3. Any claimed privilege of non-disclosure based on

confidential sources is denied.

4. Any claim of privilege based on mental thought

processes forming a basis for editorial judgments shall be

subject to the ruling hereinabove made regarding interroga-

tories.

d. Mr. Hume shall only be required to produce such

documents, ete., as shall be in his possession or under his

control.

Mr. Romero shall submit a form of order within ten

days.