# Petition — National Enquirer, Inc. v. Superior Court of California > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0871%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1983 - **Citation:** 462 U.S. 1144 ## Text B2-177ZQ [Maso ee us] No, —-——— = os | —————————>>_{[{ IN THE Supreme Court of the United States OCTOBER TERM, 1982 NATIONAL ENQUIRER, INC., Petitioner, Vv. SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES, Respondent. PETITION FOR A WRIT OF CERTIORARI TO THE CALIFORNIA COURT OF APPEAL SECOND APPELLATE DISTRICT JOHN G. KESTER * AUBREY M. DANIEL, III F. LANE HEARD, III Hill Building Washington, D.C. 20006 (202) 331-3069 Attorneys for Petitioner Cf Counsel: WILLIAMS & CONNOLLY Hill Building Washington, D.C. 20006 * Counsel of Record WILSON - EPES PRINTING Co., INC. - 789-0096 - WASHINGTON. D.C. 20001 QUESTIONS PRESENTED 1. Do the First and Fourteenth Amendments permit a court to prohibit a national newspaper to publish any- where any information learned in discovery in a libel ac- tion concerning nonprivileged subjects, and further pro- hibit the newspaper to publish any information inde- pendently obtained elsewhere from other sources that the court might consider a “fruit” of discovery? 2. May the court further order that if information on the subjects as to which discovery was taken appears in the newspaper, a violation of the order will be presumed, and the newspaper will have the burden of proving that it did not violate the order, even if it cannot do so with- out disclosing confidential sources? (i) TABLE OF CONTENTS QUESTIONS PRESENTED ..............0.....cccsessessosecsceseseress ee CR Be GW Aig 8 1g a eesti mence Re NI gins eccsemconrennees seein JURISDICTION CONSTITUTIONAL PROVISIONS INVOLVED ........ pa ga i LA, yeaa peo tehoone doo rae enema REASONS FOR GRANTING THE WRIT .................... I. THE ORDER PROHIBITING PUBLICATION IS IN CONFLICT WITH THE MOST BASIC HOLDINGS OF THIS COURT .................. sain II. A. D. The Order Does Not Meet the Extraordinary Requirements To Justify a Prior Restraint on ca cmeiensenmnonncemionnns a Presuming a Violation and Placing the Bur- den of Proof of Innocence on the Publisher Violate the First Amendment and Deny Due Process ........ UO BSE NR eee ae eae EAL The Order Is Unconstitutionally Overbroad and Fails to Employ Less Drastic Alterna- The Order Imposes an Unconstitutional Con- EU Sine SR ea A Ge lo THE DECISION BELOW IS IN CONFLICT WITH DECISIONS OF FEDERAL COURTS OF APPEALS AND STATE SUPREME I a ace atninsaencwensncrnetanesnereanninn A. Publication of Nonprivileged Information Cannot Be Prohibited on the Record Here.... (iii) 14 16 18 18 ITl. iv TABLE OF CONTENTS—Continued B. There Is a Conflict as to Whether Publication of Information Established from Independent Sources Can Be Restricted .............................. C. There Is a Conflict With Federal Court of Appeals and State Decisions Because the Or- der Effectively Denies the Right to Protect ee THE ISSUE IS OF FUNDAMENTAL IMPOR- TANCE, AND THE CIRCUMSTANCES CALL FOR SUMMARY REVERSAL ........................ ON cscs eneenenonmensoneounnvons : APPENDICES A. B. Opinion and Judgment of the California Court of Appeal, Second Appellate District .............. Order of the Supreme Court of California ....... Opinion of the Superior Court of the State of California for the County of Los Angeles .......... Order of the Superior Court of the State of California for the County of Los Angeles ........ Constitutional Provisions ..................................... Page 19 19 23 Vv TABLE OF AUTHORITIES Cases: Page Abood V. Detroit Bd. of Educ., 431 U.S. 299 (1977).. 16 Anderson V. Celebrezze, 51 U.S.L. Week 4375 (U.S. ee 15 Baker v. F&F Investment, 470 F.2d 778 (2d Cir. 1972), cert. denied, 411 U.S. 966 (1973) ............. 20 Bantam Books, Inc. v. Sullivan, 372 U.S. 58 2 NS On cc aaa 10 Beount Vv. Kinst, 400 U.S. 410 (1971) ......._......___.... 13 Bonner v. City of Pritchard, 661 F.2d 1206 (11th ee 20 Branti v. Finkel, 445 U.S. 507 (1980) ............00....... 16 Brown Vv. Commonwealth, 214 Va. 755, 204 S.E.2d 429, cert. denied, 419 U.S. 966 (1974).................. 21 Branzburg v. Hayes, 408 U.S. 665 (1972) ........ 15, 20 Brown Vv. Glines, 444 U.S. 348 (1980) .........0.0000.... 11 Bruno & Stillman, Inc. v. Globe Newspaper Co., Cee woe eee Cee ce, tee 20 Calder v. Jones, No. 82-1401, jurisdiction postponed Ce Oe 3 Cervantes Vv. Time, Inc., 464 F.2d 986 (8th Cir. 1972), cert. denied, 409 U.S. 1125 (1973)............ 20 Connecticut State Bd. v. Fagin, 33 Conn. Supp. 204, MO ic cece esetcceere ae, 21 Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 IOS ge RP A 21 DeRoburt v. Gannett Co., 507 F. Supp. 880 (D. CO 20 Dombrowski v. Pfister, 380 U.S. 479 (1965) ........... 14 Douglas v. Buder, 412 U.S. 480 (1978) ..................... 22 Dunn Vv. Blumstein, 405 U.S. 330 (1972) 15 In re Express-News Corp., 695 F.2d 807 (5th Cir. EO Et nor ee MORES A OBEN 12 First Unitarian Church v. County of Los Angeles, ee ee ee 12 Gilbert v. Allied Chemical Corp., 411 F. Supp. 505 a 20 Globe Newspaper Co. Vv. Suverior Court, 102 S. Ct. a 11, 15 vi TABLE OF AUTHORITIES—Continued Page Greenleigh Associates v. New York Post Corp., 79 App. Div. 2d 588, 434 N.Y.S. 2d 388 (1980)...... 21 Grosjean V. American Press Co., 297 U.S. 233 ne a 11 Gulf Ou Co. v. Bernard, 452 U.S. 89 (1981)... 11, 15, 18 Gulliver’s Periodicals, Ltd. v. Chas. Levy Circulat- ing Co., 455 F. Supp. 1197 (N.D. Ill. 1978)........ 20 In re Halkin, 598 F.2d 176 (D.C. Cir. 1979)... 7, 18. 38 Hanrahan Vv. Hampton, 446 U.S. 754 (1980)... zi Hartstein v. Missouri, 404 U.S. 988 (1971) _.......... 22 Healy v. James, 408 U.S. 169 (1972) ........20.. uu. 10 Herbert V. Lando, 441 U.S. 153 (1979) _................... 8,18 Jones V. National Enquirer, Inc., No. C-305009, Superior Court, Los Angeles County, California.. 3 KPNX Broadcasting Co. Vv. Arizona Superior Court, re ae, ee 15 Kusper V. Pontikes, 414 U.S. 51 (19738) ................. 15 Landmark Communications, Inc. v. Virginia, 435 Se ee 10, 11 Lee Art Theatre, Inc. Vv. Virginia, 392 U.S. 636 oR LESSER ere eee 22 Leonia Amusement Corp. Vv. Loew’s, Inec., 18 F.R.D. ee ee 18 Los Angeles Memorial Coliseum Comm’n v. Na- tional Football League, 89 F.R.D. 489 (C.D. ee 20 McKinney Vv. Alabama, 424 U.S. 669 (1976)... A 13 Miller v. Transamerican Press, Inc., 621 F.2d 721 628 F.2d 932 (5th Cir. 1980), cert. denied, 450 Ree ee Oe 20 Minneapolis Star & Tribune Co. v. Minnesota Com- missioner of Revenue, 51 U.S.L. Week 4315 (U.S. ee 10 Morgan V. State, 337 So. 2d 951 (Fla. io | ee 21 Mullaney v. Wilbur, 421 U.S. 684 (1975)... 8,13 NAACP Vv. Button, 371 U.S. 415 (1963)... 14 National Polymer Products, Inc. v. Borg-Warner Corp., 641 F.2d 418 (Gth Cir. 1981) ................. a 19 Vil TABLE OF AUTHORITIES—Continued Page Near v. Minnesota ex rel. Olson, 283 U.S. 697 aes eessnnennncnmen 8, 9, 10, 11 Nebraska Press Ass’n Vv. Stuart, 427 U.S. 539 oi ncesciencenaesinnsananvennineen 8, 9, 21 New York Press Pub. Co. v. McGraw-Hill Co., 64 App. Div. 2d 962, 409 N.Y.S. 2d 39, opinion at 4 Moda I. Beer. 1819 CPEB) ......................-...... 19 New York Times Co. v. United States, 403 U.S. 713 Oia etemens S. 36, 11, 21, 2 Norwell v. City of Cincinnati, 414 U.S. 14 (1978).. 22 Oklahoma Pub. Ce. v. District Court, 480 U.S. 308 5g) RTBU Ras SRR oe ne NS Re TO TOS 21 Organization for a Better Austin v. Keefe, 402 US. ee 10 Perry v. Sindermann, 408 U.S. 593 (1972) ............. 16 Police Dep’t v. Mosley, 408 U.S. 92 (1972) ............ 16 In re Petroleum Products Litigation, 680 F.2d 5 (2d Cir.), cert. denied, 103 S.Ct. 215 (1982)...... 20 Sandstrom v. Montana, 442 U.S. 510 (1979) ........ 8 In re San Juan Star Co., 662 F.2d 108 (1st Cir. 1981) ...... a RG it aa ater nO 19 Schultz v. Reader’s Digest Ass’ n, 468 F. Supp. 551 Ce eee. Oe 20 Schweiker v. Hansen, 450 U.S. 785 (1981) ............... 22 Secretary of the Navy v. Huff, 444 U.S. 453 (1980).. 11 Senear V. Daily Journal-American, 27 Wash. App. 454, 618 P.2d 536 (1980), aff'd, 97 Wash. 2d S00 GE Fae tee (lee... 20 Silkwood v. Kerr-McGee Corp., 563 F.2d 433 (10th gE 8s 5 RNIN barat Eels Sie as le aeRO NE ree 14, 20 Smith v. California, 361 U.S. 147 (1959) ......0000...... 12 Smith v. Daily Mail Pub. Co., 443 U.S. 97 (1979)... 9, 11, 16 Southeastern Promotions, Ltd. v. Conrad, 420 U.S. A 8 EEE EEE LS eR TRIE 10 Sp “ser V. Randall, 357 U.S. 518 (1958) -....... 12, 13, 14, 16 State v. St. Peter, 132 Vt. 266, 315 A.2d 254 fk eaRinnO aera eb eee gemiee bt acre ncdasieccnssinarenmmsnenies 21 viii TABLE OF AUTHORITIES—Continued Page Tague V. Louisiana, 444 U.S. 469 (1980)... 21 United States v. Cuthbertson, 630 F.2d 139 (3d Cir. 1980), cert. denied, 449 U.S. 1126 (1981).... 20 Vance Vv. Universal Amusement Co., 445 U.S. 308 IRIE COE ELS ase EES a ae ec 10 Wiener v. California, 404 U.S. 988 (1971) ............... 22 Winegard v. Oxberger, 258 N.W.2d 847 (Ia. 1977), cert. denied, 436 U.S. 905 (1978) ......................... 21 Wyrick v. Fields, 108 S.Ct. 394 (1982) .................. 22 Zerilli v. Smith, 656 F.2d 705 (D.C. Cir. 1981) ...... 20 Constitutional Provisions: U.S. Constitution, First Amendment... 2, passim Fourteenth Amendment ...... 2, passim Statutes: ee Ce OE i 2 Rules: Deere Cee ee es 1 Miscellaneous: Comment, Protective Orders Prohibiting Dissemi- nation of Discovery Information: The First Amendment and Good Cause, 1980 DUKE L.J. ES RSS TES, av eee aaa pI 8,18 IN THE Supreme Cot of the United States OCTOBER TERM, 1982 NATIONAL ENQUIRER, INC., Petitioner, ¥. SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES, Respondent. PETITION FOR A WRIT OF CERTIORARI TO THE CALIFORNIA COURT OF APPEAL SECOND APPELLATE DISTRICT Petitioner prays that a writ of certiorari issue to re- view the judgment of the California Court of Appeal, Second Appellate District, entered in this case on March 9, 1983." OPINIONS BELOW The opinion of the Court of Appeal is unreported. It is reproduced in Appendix A, infra. The order of the Supreme Court of California denying hearing without 1 Parties to the proceeding in the court below are the court named in the caption and real parties in interest Shirley Jones and Marty Ingels. Pursuant to Rule 28.1, Petitioner states that it is a Florida corporation wholly owned by GP Group, Inc., a Delaware corporation that also owns Distribution Services, Inc., a Delaware corporation and Weekly World News, Inc., a Florida corporation. Petitioner has no other affiliates or subsidiaries except wholly owned subsidiaries. 2 opinion also is unreported; it is reproduced in Appendix B, infra. The oral opinion of the Respondent Superior Court of the State of California for the County of Los Angeles is unreported and is reproduced in Appendix C, infra. The order issued by that court is reproduced in Appendix D, infra. JURISDICTION The judgment of the Court of Appeal was entered March 9, 1983. The Supreme Court of California denied a timely petition for hearing on April 13, 1983. This Court has jurisdiction under 28 U.S.C. § 1257(3). CONSTITUTIONAL PROVISIONS INVOLVED The First and Fourteenth Amendments to the Constitu- tiun of the United States are reproduced in Appendix E, infra. STATEMENT On January 5, 1983, the Superior Court of the State of California for the County of Los Angeles entered an or- der of a nature and scope never before seen. It restrained Petitioner, which publishes the National Enquirer, from publishing if it used its discovery rights any story or reference relating to professional entertainers Shirley Jones or Marty Ingels, their relatives or their businesses, whether laudatory or critical, unless Petitioner could pre- sent evidence sufficient to overcome the court’s presump- tion that such information had been obtained through discovery in a lawsuit. The penalty for publication and failure to overcome the adverse presumption, the court specified, could be entry of a default judgment against Petitioner in a lawsuit seeking damages from it in the amount of $20,000,000. Having exhausted all other reme- dies, Petitioner now seeks from this Court relief from this restraint on publication. The order came about this way. Ms. Jones and her husband Mr. Ingels brought an action for defamation 3 against Petitioner in Respondent court. Jones Vv. Na- tional Enquirer, Inc., No. C-305009, Superior Court, Los Angeles County, California. They sought damages alleged to total $20,000,000 for an article about them that ap- peared in the October 9, 1979 issue of the Enquirer. The article stated that Mr. Ingels, an entertainer and “celeb- rity broker,” “has terrorized his staff, cheated stars, out- raged advertisers and scandalized Hollywood,” and that he “has one of the most notorious casting couches in all of Hollywood.” In consequence of his actions, the article went on, Ms. Jones “has been driven to drink by his bizarre behavior.” Petitioners’ answer denied that the article was false. Mr. Ingels later voluntarily dismissed his complaint. Ms. Jones has continued to prosecute the lawsuit.” In light of the complaint’s claim that the article was false, Petitioner served written interrogatories and a re- quest for documents, pursuant to the California Code of Civil Procedure, to establish the truth of elements in the article. Petitioner requested that the plaintiffs iden- tify the names of the employees, celebrity clients, and advertiser clients of his corporation, Ingels, Inc., and any extramarital liaisons. See p. 10a, infra. The plaintiffs moved for an order barring Petitioner from any discov- ery at all, or prohibiting publication of information learned in discovery that the plaintiffs wished to treat as confidential. Petitioner by written response and orally argued that such an order would violate the First and Fourteenth Amendments. The plaintiffs argued that “the law affords no First Amendment protection to the En- quirer from this court’s appropriate discovery protective orders.” P. 7a, infra. The court then announced that “T think this is the appropriate time and place for a protective order, at the beginning of court ordered discovery ....” P. 18a, infra. “The same lawsuit, on a jurisdictional issue affecting other defendants, is involved in Calder v. Jones, No. 82-1401, jurisdiction postponed (Apr. 18, 1983). 4 The court expressed concern that “Your client [Peti- tioner] is a very powerful media source,” which it said could use truthful information “as a sledge hammer, to hurt those who seek to bring an action,” and that “your client may well end up getting sensitive information about celebrities, very newsworthy information, because of the proper use of the discovery processes.” P. 9a, infra. The court then declared, after acknowledging that “the pro- tective order does raise significant questions because pub- lication is involved,” p. 13a, infra, that: “T want to make it very clear that at least this court’s view is that once the order is issued and in- formation is obtained by the court’s processes, in- cluding informally after the order is in effect, then the Enquirer would be prohibited from publishing what they learned and the fruits of that, and I think the only way to prevent an abuse of process is to presume and put the burden on the Enquirer. If they publish a story on the face of it looks like it was led to by discovery in the case, then tnat is a violation of the court’s order unless they demonstrate to the contrary.” P. 14a, infra. (emphasis supplied). Recognizing the sweeping scope of the ban on publica- tion, the court pointed out that the greater the discovery taken by Petitioner to defend itself, the broader the ban would be: “IT do want the Enquirer to have an opportunity to ask only as narrow questions as it decides necessary for the purpose of the litigation. * s * * “Now, it may be that the Enquirer would prefer not to conduct such broad discovery so that its ability to publish stories it wants to publish is not constrained by it [the order] in this case. * * * a 5 “To the extent that you choose to conduct broad dis- covery, then the Enquirer will be bound broadly not to publish information it gets in regard to the dis- covery; and to the extent you choose to conduct nar- row discovery, then the constraint will be more nar- row, and I want to give you an opportunity to think through your tactics.” Pp. 14a-15a, infra. Explaining that it was placing the burden on Petitioner to overcome the presumption that a story was a fruit of discovery, the court acknowledged that Petitioner receives leads for many stories from confidential sources. Never- theless, said the court, if a story were published based on information Petitioner had obtained independently from confidential sources it chose not to reveal, then proof of non-violation of the order would be Petitioner’s problem. “The Enquirer then would have the burden of doing whatever it is going to do to establish independent source cece’ lek or. If Petitioner published a story and failed to produce sufficient proof to overcome the presumption against it, the court warned that the sanctions would be severe: “(T]his court would view a violation of the order very, very seriously and would contemplate very drastic sanctions if the court became convinced that the court’s process was being abused to unfairly dis- courage litigation against an important publication * * * * “Of course, it is clear that the one thing that could not happen would be that the Enquirer or any in- dividual reporter would be held in contempt for fail- ing to discover [sic—disclose] a confidential source. “Indeed the sanction—the ultimate sanction that could possibly be imposed for the Enquirer publish- ing something that appeared to be the fruit of its discovery in this lawsuit in violation of the court’s order, the ultimate sanction could be the entering of judgment against the Enquirer in this case.” Pp. 14a, 17a, infra. 6 An order accordingly was entered on January 5, 1983, the pertinent portion of which, paragraph 7 (pp. 22a- 25a, infra), provides that as to any information desig- nated by Ms. Jones and Mr. Ingels as “Confidential Doc- uments or information,” * “No Confidential Document or any information con- tained therein or discovered as a result of access to Confidential Documents which relates to plaintiffs, their business(es), or their relatives shall be pub- lished in any publication owned or controlled by de- fendant.” P. 24a, infra. Further, “Upon a showing that defendant has published or caused to be published information described ... . [above], it shall be presumed that defendant has vio- lated this order. The burden shall be on defendant to establish by a preponderance of the evidence that any such information published or caused to be pub- lished by it was obtained independently and not as a result of access to Confidential Documents.” Pp. 24a- 25a, infra. (Emphasis supplied. ) There was no finding or suggestion by the court that any of Petitioner’s discovery requests (a request for doc- ument production and a set of written interrogatories) were unreasonable in themselves, in light of the issues in the lawsuit. The discovery, the court said, was “proper.” P. 9a, infra. There was no finding that any information sought was privileged.* There was no evidence whatso- ever, and no finding, that Petitioner ever had published information obtained through discovery in this case or % By its terms the order applies to “confidentia!” information, and then in paragraphs 7(a) and 7(b) defines “confidential” as what- ever the plaintiffs choose to designate as confidential. See p. 23a, infra. * The plaintiffs’ counsel stated to the court that the information “if not strictly within a trade secret or privacy privilege, is sensi- tive.” P. Ta, infra. 7 any other, or used such information to obtain stories. There was no enumeration or specification by the plain- Sif~s to the anit of gnaifiaallyy wihot anfammetian they intended to protect. The order requires simply that the plaintiffs show that information was published on or that “relates to” subjects that they designate confidential. Or- der, 17 7(a), (b) (i), pp. 23a-25a, infra. The burden then falls to Petitioner to prove that such publication was not a “result” of discovery. Order, { 7(i), pp. 24a-25a, infra. The court did not comment on the First Amendment authorities, including In ve Halkin, 598 F.2d 176 (D.C. Cir. 1979), that were cited to it by Petitioner. The court did add that “I would hope that the Enquirer would promptly seek a writ so we can have the parties know at a very early stage whether the Enquirer’s arguments would find more favor with the Court of Appeal... .” P. 19a, infra. As the court recommended, Petitioner sought to have the order vacated by the California Court of Appeal, arguing as it had in the trial court that the order denied rights protected by the First and Fourteenth Amendments. That court denied relief. P. la, infra. Again asserting violation of First and Fourteenth Amendment rights, Petitioner immediately sought a hear- ing in the Supreme Court of California. With Justice Mosk and Justice Grodin each asking that their dissents be noted on the record, the Supreme Court of California earlier this month denied hearing. P. 2a, infra. REASONS FOR GRANTING THE WRIT For nearly four months now Petitioner, a national pub- lishing company, by court order has been unable to defend itself against a $20,000,000 libel claim without becoming subject to a prohibition forbidding it to publish any in- formation concerning Shirley Jones or Marty Ingels, their relatives, or relating to their businesses that might ap- pear even to have been brought to Petitioner’s attention by information obtained in discovery. The prohibition applies even to information obtained from and verified by 8 independent sources, if it was published as a result of access to discovery information. And the burden is on Petitioner to overcome a presumption of guilt. Restraints on publication in our history, particularly as applied to national periodicals, have been happily rare. This Court has rejected them even against claims of national security, or threat to the judicial process. New York Times Co. v. United States, 403 U.S. 713 (1971); Nebraska Press Ass’n v. Stuart, 427 U.S. 539 (1976). See also Near v. Minnesota ex rel. Olson, 283 U.S. 697 (1931). Rulings that put the burden on a party to prove its innocence, even outside the First Amend- ment area, are perhaps even rarer. Cf. Sandstrom v. Montana, 442 U.S. 510 (1979); Mullaney v. Wilbur, 421 U.S. 684 (1975). We know of none that has been ap- plied to prohibit the publication of information in a news- paper. Orders imposed at the discovery stage of litigation seldom come up for review at the appellate level.’ Yet the lower courts do enter such orders, with little decis- ional law to guide them. There is an increasing fear that First Amendment rights are being casually restricted in such orders. Commentators observe that the lower courts “have used inconsistent approaches and have reached rad- ically different results.”” Comment, Protective Orders Pro- hibiting Dissemination of Discovery Information: The First Amendment and Good Cause, 1980 DUKE L.J. 766. Here a publisher defendant has been put to the Hobson’s choice of giving up First Amendment rights by not pub- lishing, or giving up other First Amendment rights by taking inadequate discovery in defense of a libel suit. We 5 For one instance of such review, see Herbert v. Lando, 441 U.S. 153 (1979). If Petitioner were to acquiesce in the order and, as the trial court urged, pp. 14a-15a, infra, constrict its discovery, it would risk possibly losing a trial because of inadequate preparation. As a practical matter, the discovery ruling never would be reviewed, and the harm would be irreparable. 9 have been able to find no precedent, reported or unre- ported, for what happened here. The present case shows a trial court unguided and out of controi, a court that perhaps with the best of intentions entered an unsup- ported order that if allowed to stand would obliterate the First Amendment. Petitioner is not here to challenge all orders regulating use of discovery. But this particular crder lacks factual basis and unlawfully restricts not just discovery, but pub- lication. It is in conflict with landmark decisions of this court, and also if allowed to stand will perpetuate a con- flict, as to federal constitutional law applied to national publications, between the nation’s largest state and con- trary decisions in all the federal circuits and many states. For all these reasons, review is urgent. I. THE ORDER PROHIBITING PUBLICATION IS IN CONFLICT WITH THE MOST BASIC HOLDINGS OF THIS COURT. A. The Order Does Not Meet the Extraordinary Re- quirements To Justify a Prior Restraint on Pub- lication. There can be no doubt that under some of the most memorable and vital decisions of this Court, the re- straint on publication ordered by Respondent is clearly unconstitutional. ‘“‘[I]t has been generally, if not uni- versally, considered that it is the chief purpose of the [First Amendment’s] guaranty to prevent previous re- straints upon publication.” Near v. Minnesota ex rel. Olson, 283 U.S. 697, 713 (1931). Four years ago in Smith v. Daily Mail Pub. Co., 443 U.S. 97 (1979), this Court, without dissent and speaking through the Chief Justice, held invalid under the First and Fourteenth Amendments a state law requiring court approval before publishing the name of a person charged as a juvenile offender. This Court called the roll of its prior decisions invalidating prior restraints on speech and publication: Nebraska Press Ass’n v. Stuart, 427 U.S. 10 589 (1976); New York Times Co. v. United States, 403 U.S. 713 (1971); Organization for a Better Austin Vv. Keefe, 402 U.S. 415 (1971); Near v. Minnesota ex rel. Olson, supra. This Court then explained: “The resolution of this case does not turn on whether the statutory grant of authority to the juvenile judge to permit publication of the juvenile’s name is, in and of itself, a prior restraint. First Amend- ment protection reaches beyond prior restraints... . “Whether we view the statute as a prior restraint or as a penal sanction for publishing lawfully ob- tained, truthful information is not dispositive be- cause even the latter action requires the highest form of state interest to sustain its validity. Prior restraints have been accorded the most exacting scrutiny in previous cases.”’ 443 U.S. at 101-102. Similarly in Landmark Communications, Inc. v. Virginia, 435 U.S. 829 (1978), this Court emphatically held that the same constitutional provisions were violated by a state law prohibiting publication of confidential proceedings of a judicial review commission.® Just a month ago, in Minneapolis Star & Tribune Co. v. Minnesota Commissioner of Revenue, 51 U.S.L. Week 4315 (U.S. Mar. 29, 1983), this Court pointed out that although many First Amendment issues are open to dis- agreement, prior restraints are not in the doubtful category: “But when we do have evidence that a particular law would have offended the Framers, we have not *“Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.” Vance v. Universal Amusement Co., 445 U.S. 308, 317 (1980), quoting Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963) (emphasis added by the Court). See also Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546 (1975); Healy v. James, 408 U.S. 169, 184 (1972). 11 hesitated to invalidate it on that ground alone. Prior restraints, for instance, clearly strike to the core of the Framers’ concerns, leading this Court to treat them as particularly suspect. Near v. Minne- sota, 283 U.S. 697, 718, 716-718 (1931): cf. Gros- jean Vv. American Press Co., Inc., 297 U.S. 233 (19386) ....” 51 U.S.L. Week at 4317 n.6.7 Even assuming some restriction on discussion or use of some information obtained in discovery might on a proper and precise factual showing of need be permitted, the rec- ord here supports no such restriction, and the broad re- striction on publication is not an acceptable solution. Cf. New York Times Co. v. United States, supra, 403 U.S. at 733 (White, J., concurring). Court orders restricting communications “should be based on a clear record and specific findings that reflect a weighing of the need for a limitation and the potential interference with the rights of the parties.” Gulf Oil Co. v. Bernard, 452 U.S. 89, 101 (1981) (footnote omitted). They must be based on “individualized detzrminations” that are “articulated in findings.” Globe Newspaper Co. v. Superior Court, 102 S.Ct. 2613, 2621 n.20 (1982). The order here is based on no findings whatsoever and no evidence whatsoever. It was entered almost casually, along with an invitation to try for relief on appeal. If Smith v. Daily Mail Pub. Co., supra, Land- mark Communications, Ine. vy. Virginia, supra, and Near v. Minnesota ex rel. Olson, supra, are the law, then this order cannot stand.® * The rare instances in which this Court ever has tolerated prior restraints on publication virtually all have been in the context of military discipline and military security. Cf. Brown v. Glines, 444 U.S. 348 (1980); Secretary of the Navy v. Huff, 444 U.S. 458 (1980). 8 The fact that the order applies to information involved in dis- covery is not enough to justify such a prior restraint. In New York Times Co. Vv. United States, supra, the information was stolen, was under national security classification, and was allegedly vital to the security of the country, but this Court held that a prior restraint violated the First Amendment. 12 B. Presuming a Violation and Placing the Burden of Proof of Innocence on the Publisher Violate the First Amendment and Deny Due Process. The Order here provides in paragraph (7) (i) that “[t]he burden shall be on defendant to establish by a prepcnderance of the evidence that any such information published or caused to be published by it was obtained independently and not as a result of access to Confiden- tial Documents.” (Emphasis supplied.) As the court ex- plained its purpose: “If [Petitioner] publish[es] a story on the face of it looks like it was led to by discovery in the case, then that is a violation of the Court’s order unless they demonstrate to the contrary.” P. 14a, infra (emphasis supplied). Such a shifting of the burden, onto the publisher to prove its right to publish, is not compatible with the Con- stitution. “A court may not impose a restraint that sweeps so broadly and then require those who would speak freely to justify special treatment by carrying the burden of showing good cause.” In re Express-News Corp., 695 F.2d 807, 810 (5th Cir. 1982). When the court seeks to separate legitimate from il- legitimate speech and to punish the latter, “where the burden of proof lies may be decisive of the outcome.” Speiser v. Randall, 357 U.S. 518, 525 (1958). This Court has held repeatedly that due process prohibits placing on a speaker or publisher the burden of prov- ing a negative, that his speech is not illegitimate. Speiser v. Randall, supra; First Unitarian Church v. County of Los Angeles, 357 U.S. 545 (1958). Although the states generally may regulate the allocation of the burden of proof, they may not do so “in a manner tending to cause even a self-imposed restriction of free expres- sion.” Smith v. California, 361 U.S. 147, 151 (1959). “[W]hen First Amendment values are implicated, the selection of a standard of proof of necessity implicates the relative constitutional acceptability of erroneous 13 judgments.” McKinney v. Alabama, 424 U.S. 669, 684 (1976) (Brennan, J., concurring) (emphasis in original). Cf. Mullaney v. Wilbur, 421 U.S. 684 (1975); Blount v. Rizzi, 400 U.S. 410, 418 (1971). At issue in Speiser v. Randall, supra, were tax exemp- tions conditioned on the signing of an oath that the claimant did not advocate the unlawful overthrow of the government. This Court held that, although due process did not require the fuli formalities of a trial, it did re- quire at a minimum that the state bear the burden of persuasion for denial of a benefit ‘where the transcend- ant value of speech is involved.” 357 U.S. at 526. To shift the burden to a party subject to penalty—in this case, Petitioner—is predictably to chill legitimate expres- sion: “The vice of the present procedure is that, where particular speech falls close to the line separating the lawful and the unlawful, the possibility of mis- taken factfinding—inherent in all litigation—will create the danger that the legitimate utterance will be penalized. The man who knows that he must bring forth proof and persuade another of the law- fulness of his conduct necessarily must steer far wider of the unlawful zone than if the State must bear these burdens. . .. In practical operation, therefore, this procedural device must necessarily produce a result which the State could not command directly. It can only result in a deterrence of speech which the Constitution makes free.” Jbid. The order here holds over petitioner’s head the threat of a $20,000,000 default judgment should it publish any information produced by plaintiffs in discovery, or, be- yond that, any information that might look as if discovery had provided the idea. The practical result of shifting the burden is to force petitioner to steer wide of the vast unlawful zone created by the order, by publishing nothing on discoverable subjects at all. 14 Indeed, that deterrence is even greater in this case than in Speiser. There legitimate speech was chilled only to the extent that the claimants took into account the possibility of mistaken factfinding. Petitioner, how- ever, must also take into account that to prove that a story about plaintiffs was not a result of discovery may be impossible without disclosing confidential sources. Pe- titioner’s readers are interested in the entertainment in- dustry. Petitioner publishes many stories about enter- tainers, including the plaintiffs, some of them based upon confidential sources. Such sources, of course, enjoy a qualified First Amendment privilege. Silkwood v. Kerr- McGee Corp., 563 F.2d 433, 437 (10th Cir. 1977) (the privilege “is no longer in doubt’). Shifting the burden of proof thus compels petitioner to sacrifice one First Amendment right or another—(1) it can publish a story about plaintiffs based on independent. information from a confidential source, but only at the cost of revealing the source in order to sustain its burden of proof; or (2) it ean decide not to publish the story to protect the con- fidentiality of its source, even though the story is not based on information obtained in discovery and is rot in violation of the order. Where the “transcendent value of speech is involved,” 357 U.S. at 526, however, the First Amendment and due process do not permit such a Hobson’s choice. The con- stitutional violation is clear-cut; the order cannot stand. C. The Order Is Unconstitutionally Overbroad and Fails to Employ Less Drastic Alternatives. This Court often has held that even when a legitimate interest exists in having some narrow restraint, the First Amendment is violated when speech and press are chilled by overly broad restrictions that fail to consider less drastic alternatives. See, e.g., Dombrowski v. Pfister, 380 U.S. 479 (1965); NAACP v. Button, 371 U.S. 415 (1963). Particularly when restraints on a newspaper are concerned, 15 “Where, as in the present case, the State attempts to deny the right of access in order to inhibit the disclosure of sensitive information, it must be shown that the denial is necessitated by «a compelling gov- ernmental interest, and is narrowly tailored to serve that interest.” Globe Newspaper Co. v. Superior Court, supra, 102 S.Ct. at 2620. If any restrictions on speech in the course of litigation are tolerated, they must be based on careful findings and “should result in a carefully drawn order that limits speech as little as possible.” Gulf Oil Co. v. Bernard, 452 U.S. 89, 102 (1981). Where less restrictive alternatives are available, they should be adopted. Cf. Branzburg v. Hayes, 408 U.S. 665, 710 (1972) (Powell, J., concur- ring). Just ten days ago, this Court had occasion to reiterate that “For even when pursuing a legitimate interest, a State may not choose means that unnecessarily re- strict constitutionally protected liberty. Dunn v. Blumstein, 405 U.S., at 3438. ... If the State has open to it a less drastic way of satisfying its legiti- mate interests, it may not choose a_ legislative scheme that broadly stifles the exercise of funda- mental personal liberties.” Anderson v. Celebrezze, 51 U.S.L. Week 4375, 4882 (U.S. Apr. 19, 1983), quoting Kusper Vv. Pontikes, 414 U.S. 51, 59 (1973). In the courtroom setting as elsewhere, prior restraints have been “roundly condemned,” and this Court has “ad- monished trial courts to employ their usually consider- able discretion to search for other alternatives than prior restraints.” KPNX Broadcasting Co. v. Arizona Superior Court, 103 S.Ct. 584, 587 (1982) (Rehnquist, J., in chambers). By sweeping into its prohibition all future stories about the plaintiffs, their relatives, or matters connected with Mr. Ingels’ “celebrity broker” business, the order widely bans discussion of topics of public interest. The plain- tiffs are newsworthy public figures who are frequently written about in the Enquirer and in many other peri- 16 odicals as well. The record in the Superior Court con- tains at least 17 articles published by Petitioner about the plaintiffs and their relatives (who also are enter- tainers) prior to entry of the order, and in fact there have been dozens more. By prohibiting in addition arti- cles about Mr. Ingels’ business, the order cuts an even wider sweep, for the record shows that Mr. Ingels claimed at one point to have 24 employees and 139 clients, many of them celebrities. Presumably the order applies to publishing anything about any of them, unless petitioner is prepared to prove that each story did not “result,” p. 25a, infra, even in some unspecified indirect way, from discovery.® D. The Order Imposes an Unconstitutional Condition. This Court has held repeatedly, and particularly where First Amendment freedoms are at stake, that a state normally cannot condition access to a benefit on the sur- render of constitutionally protected rights. See, e.g., Branti v. Finkel, 445 U.S. 507 (1980) ; Abood v. Detroit Bd. of Educ., 431 U.S. 209, 284 (1977). As this Court held in Perry v. Sindermann, 408 U.S. 593, 597 (1972), a state “may not deny a benefit to a person on a basis that infringes his constitutionally protected interests— especially, his interest in freedom of speech. For if the government could deny a benefit to a person be- cause of his constitutionally protected speech or as- sociations, his exercise of those freedoms would in ° The order itself is intolerably vague in its failure to define “fruit” or “result,” and in delegating to the plaintiffs with no clear standards the choice as to what information is covered and what “relates to” plaintiffs on their businesses. Moreover, the order unconstitutionally singles out Petitioner for its prohibition; the information related to discovery if obtained could be published by anyone—except Petitioner. Cf. Police Dep’t v. Mosley, 408 U.S. 92, 96-98 (1972). Because of such discrimination, it can be said that to some degree the order “largely fails to achieve its pur- pose.” Smith v. Daily Mail Pub. Co., supra, 443 U.S. at 110 (Rehnquist, J., concurring; footnote omitted). 17 effect be penalized and inhibited. This would allow the government to ‘produce a result which [it] could not command directly.’ Speiser v. Randall, 357 USS. 513, 526. Such interference with constitutional rights is impermissible.” California liberally grants to defendants the right to discovery of relevant information—in this case, infor- mation tending to establish the truth of the story that the plaintiffs had put at issue. There was no suggestion by the court that the information sought by discovery was not relevant or that it was privileged, and indeed it referred to Petitioner’s requests as “proper.” P. 9a, infra. Yet the court held that if Petitioner wanted to use the statutorily available discovery in aid of its defense, it would have to give up its First Amendment right to pub- lish (1) anything it learned in discovery; (2) anything it learned from contacting other sources that might be characterized by the court for unspecified reasons as a “fruit” of discovery; and even (3) anything it learned totally independently and not as a result of discovery, unless it was able to overcome an adverse presumption and prove, by disclosure of confidential sources if neces- sary, that the origin of the story was elsewhere. Rec- ognizing how onerous these conditions were, the court urged Petitioner to limit its discovery in defense of the libel suit narrowly, because the court said, the greater the discovery, the greater the restriction on publication. Pp. 14a-l5a, infra. Indeed, the condition imposed here was not just a court-directed trade-off between First Amendment rights on the one hand and discovery rights on the other. It was a direction that First Amendment rights (of a publisher to defend a defamation suit with a defense of truth) be given up in order to exercise other First Amendment rights (to publish). The importance of discovery rights as a protection for a publisher is graphically illustrated by this very case. After his filing a verified complaint that the original 18 story was in all respects false, Mr. Ingels without ex- planation and on the eve of his deposition voluntarily dropped his suit against Petitioner.” Vigorous discov- ery, like the free market of ideas, is an aid to finding and protecting the truth." Il. THE DECISION BELOW IS IN CONFLICT WITH DECISIONS OF FEDERAL COURTS OF APPEALS AND STATE SUPREME COURTS. A. Publication of Nonprivileged Information Cannot Be Prohibited on the Record Here. In Gulf Oil Co. v. Bernard, supra, 452 U.S. at 102 n. 16, this Court cited with approval and quoted from the leading case of In re Halkin, 598 F.2d 176 (D.C. Cir. 1979). In that decision the U.S. Court of Appeals for the District of Columbia Circuit held that an order that pro- hibited extrajudicial disclosure of information obtained through discovery, but was unsupported by findings and evidence and “a particular and specific demonstration of fact” was invalid under the First Amendment. “Gen- erally speaking, when a party obtains documents or in- formation through the discovery process, he can ‘use that information in any way which the law permits.’” 598 F.2d at 188, quoting Leonia Amusement Corp. v. Loew’s, Inc., 18 F.R.D. 503, 508 (S.D.N.Y. 1955). In the Respondent court, Petitioner argued that tv grant the sweeping order imposed here would be con- trary to In re Halkin and other cases. The plaintiffs argued in reply that Jn re Halkin was wrongly decided. The court never discussed In re Halkin, or the other cases cited to it, at all. ' The same factual issues remain in the suit by Ms. Jones. '! Indeed, this Court has recognized the propriety of discovery as well as of careful and narrow limitations on it when the press is the party producing. Herbert v. Lando, 441 U.S. 158 (1979). 12 Halkin has been described as “the first decision to formulate a useful standard for determining whether a protective order is constitutional.” Comment, 1980 DUKE L. J. 766, supra. 19 The decision below conflicts with the holding of the District of Columbia Circuit in Jn re Halkin: with the holding of the First Circuit in In re San Juan Star Co., 662 F.2d 108 (1st Cir. 1981); and with the holding of the Sixth Circuit in National Polymer Products, Inc. Vv. Borg-Warner Corp., 641 F.2d 418 (6th Cir. 1981), in which the court of appeals said: “The principle that parties do not lose their First Amendment rights by virtue of their participation in legal processes extends to information obtained in discovery as well as that obtained from the pub- lic record.” 641 F.2d at 423. And it is widely recognized and held that the burden of showing necessity for an order restricting use of discov- ery materials is very high, indeed. E.g., New York Press Pub. Co. v. McGraw-Hill Pub. Co., 64 App. Div. 2d 962, 409 N.Y.S. 2d 39, opinion at 4 Media L.Rptr. 1819 (1978). B. There Is a Conflict as to Whether Publication of Information Established from Independent Sources Can Be Restricted. Even courts that have recognized that in rare cir- circumstances and on adequate evidence, dissemination of narrowly specified information obtained in discovery may be subject to appropriate restrictions, have never gone the further step that the court here took. and pro- hibited publication of information obtained and verified from independent sources, if the idea might appear to have been a “fruit” p. 14a, infra, or a “result,” p. 25a, infra, of discovery. Such an order is grossly improper, and cannot be reconciled with the careful and cautious rezsoning of Jn re Halkin, supra, and the cases follow- ing it. C. There Is a Conflict With Federal Court of Appeals and State Decisions Because the Order Effectively Denies the Right to Protect Confidential Sources. The order, as previously noted, penalizes Petitioner for use of confidential sources. True, said the court, it 20 would not formally require confidential sources to be dis- elosed. P. 17a, infra. But if Petitioner published a story within the terms of the order based on a confidential source, and could not prove its independent origin except by revealing that source, then the dilemma would be Petitioner’s problem. P. 18a, infra. The court’s unprecedented procedure requires either (1) nonpublication of information learned from a con- fidential source, or (2) disclosure of the source, or (3) “very drastic” penalties, p. 14a, infra, including the pos- sibility of a $20,000,000 default judgment. P. 17a, infra. Although confidential news sources may not enjoy an ab- solute privilege from disclosure, cf. Branzburg v. Hayes, supra, that they do have a substantial First Amendment privilege is well established. The order here effectively destroys that protection, and therefore is in conflict with the decisions of many courts that have recognized it— which include courts in all twelve numbered federal circuits.’ 13 See, e.g., Zerilli v. Smith, 656 F.2d 705 (D.C. Cir. 1981) ; Bruno & Stillman, Inc. v. Globe Newspaper Co., 633 F.2d 583 (1st Cir. 1980); In re Petroleum Products Antitrust Litigation, 680 F.2d 5 (2d Cir.), cert. denied, 103 S.Ct. 215 (1982); Baker v. F & F Investment, 470 F.2d 778 (2d Cir. 1972), cert. denied, 411 U.S. 966 (1973); United States v. Cuthbertson, 630 F.2d 139 (3d Cir. 1980), cert. denied, 449 U.S. 1126 (1981); Gilbert v. Allied Chemi- cal Corp., 411 F. Supp. 505 (E.D. Va. 1976) ; Miller v. Transameri- can Press, Inc., 621 F.2d 721, 628 F.2d 932 (5th Cir. 1980), cert. denied, 450 U.S. 1041 (1981) ; Schultz v. Readers Digest Ass'n, 468 F. Supp. 551 (E.D. Mich. 1979); Gulliver’s Periodicals, Ltd. V. Chas. Levy Circulating Co., 455 F. Supp. 1197 (N.D. IIl. 1978) ; Cervantes v. Time, Inc., 464 F.2d 986 (8th Cir. 1972), cert. denied, 409 U.S. 1125 (1978) ; DeRoburt v. Gannett Co., 507 I’. Supp. 880 (D. Haw. 1981); Los Angeles Memorial Coliseum Comm'n V. Na- tional Football League, 89 F.R.D. 489 (C.D. Cal. 1981); Silkwood v. Kerr-McGee Corp., supra. The Eleventh Circuit has stated that it will be bound by the precedent of the Fifth Circuit. Bonner Vv. City of Pritchard, 661 F.2d 1206 (11th Cir. 1981). The privilege has also been recognized in numerous state courts. Senear v. Daily Journal-American, 27 Wash. App. 454, 618 P.2d 21 Ill. THE ISSUE IS OF FUNDAMENTAL IMPORTANCE, AND THE CIRCUMSTANCES CALL FOR SUM- MARY REVERSAL. This order restraining publication has been in effect now for four months, during which time Petitioner has brought this action to challenge it and has sought relief in two layers of appellate courts, exhausting all remedies available in the courts of California. Promptly upon learning of the California Supreme Court’s divided denial of hearing, Petitioner has brought the case here. This Court is nearing the end of its current Term. A grant of certiorari by itself would mean argument some- time in the fall of 1983 and a decision perhaps at the end of this year at the earliest. By that time the four- month duration of the present restraint would have tripled. In Oklahoma Pub. Co. v. District Court, 480 U.S. 308 (1977), a trial court entered an order prohibiting a news- paper from publishing certain information. Citing Ne- braska Press Ass’n Vv. Stuart, supra, and Cox Broadcast- ing Corp. v. Cohn, 420 U.S. 469 (1975), this Court in a unanimous order granted certiorari and reversed. In other instances of prior restraint on the press, this Court has adjudicated with dispatch. See, e.g., New York Times Co. v. United States, supra. In many contexts, where a lower court has acted with no basis for its ac- tion and contrary to the clear precedents of this Court, reversal often accompanies grant of certiorari. See, e.g., Tague Vv. Louisiana, 444 U.S. 469 (1980); Hanrahan v. 536 (1980), aff'd, 97 Wash. 2d 148, 641 P.2d 1180 (1982); Green- leigh Associates Vv. New York Post Corp., 79 App. Div. 2d 588, 434 N.Y.S.2d 388 (1980); Connecticut State Board v. Fagin, 33 Conn. Supp. 204, 370 A.2d 1095 (1976); Morgan v. State, 337 So.2d 951 (Fla. 1976); Brown v. Commonwealth, 214 Va. 755, 204 S.E.2d 429, cert. denied, 419 U.S. 966 (1974); Winegard v. Oxbderger, 258 N.W.2d 847 (Ia. 1977), cert. denied, 436 U.S. 905 (1978); State v. St. Peter, 182 Vt. 266, 315 A.2d 254 (1974). 22 Hampton, 446 U.S. 754 (1980); Douglas v. Buder, 412 U.S. 430 (1973). Such dispositions have been used to correct immediately denials of First Amendment rights. See, e.g., Norwell v. City of Cincinnati, 414 U.S. 14 (1973); Hartstein v. Missouri, 404 U.S. 988 (1971): Wiener v. California, 404 U.S. 988 (1971): Lee Art Theatre, Inc. v. Virginia, 392 U.S. 636, 637 (1968) (“The procedure . . . fell short of constitutional require- ments demanding necessary sensitivity to freedom of expression’’) ."4 There is no need for delay in this case. The order here is without evidentiary basis, is misconceived and goes too far. This Court’s prior holdings are familiar, and they are clearly controlling. The judgment below should be reversed now. 14 Although Mr. Justice Marshall and sometimes other members of the Court have expressed concern about summary dispositions, he has recognized their propriety in cases “in which the applicable law is settled and stable, the facts are not disputed, and the decision below is clearly in error.” Wwyrick v. Fields, 103 S.Ct. 394, 397 (1982) (Marshall, J., dissenting) (footnote omitted): see also Schweiker v. Hansen, 450 U.S. 785, 791 (1981) (Marshall, J., dis- senting). Those criteria are more than met here, and the need to adjudicate prior restraints on publication swiftly was emphasized by several members of this Court in New York Times Co. v. United States, supra. See 403 U.S. at 714 (Black, J.. concurring) (“should have been vacated without oral argument when the cases were first presented to this Court”) ; id. at 725-726 (Brennan, J. concurring) (“First Amendment tolerates absolutely no prior judicial restraints of the press predicated upon surmise or conjecture that untoward consequences may result’) (footnote omitted); id. at 733 (White, J., concurring) (“the Government mistakenly chose to proceed by injunction”); id. at 748-749 (Burger, C.J., dissenting) (“The prompt setting of these cases reflects our universal abhorrence of prior restraint”). Moreover, Respondent and the real parties in interest below are on notice from this petition that immediate reversal is sought. »9 23 CONCLUSION For the reasons stated, certiorari should be granted, the judgment vacated, and the case remanded with in- structions to vacate the order of the Superior Court. Of Counsel: WILLIAMS & CONNOLLY Hill Building Washington, D.C. 20006 * Counsel of Record April 29, 1983 Respectfully submitted, JOHN G. KESTER * AUBREY M. DANIEL, III F. LANE HEArp, III Hill Building Washington, D.C. 20006 (202) 331-3069 Attorneys for Petitioner la APPENDIX A Opinion and Judgment of the California Court of Appeal, Second Appellate District IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FOUR 2d Civ. No. 67772 (L.A. Super. Ct. No. C 305009) (Eli Chernow, Judge) NATIONAL ENQUIRER, INC., Petitioner, We SUPERIOR COURT OF THE COUNTY OF Los ANGELES, Respondent, SHIRLEY JONES and MARTY INGELS, Real Parties in Interest. [Filed Mar. 9, 1983] ORDER THE COURT: * The petition for writ of mandate filed February 9, 1983, and the preliminary opposition thereto filed Febru- ary 14, 1983, have been considered. The petition is de- nied for absence of facts showing petitioner is entitled to extraordinary relief. /s/ Woods /s/ Kingsley /s/ Amerian * WOODS, P.J., KINGSLEY, J.. AMERIAN, J. 2a APPENDIX B Order of the Supreme Court of California CLERK’S OFFICE, SUPREME COURT 4250 STATE BUILDING SAN FRANCISCO, CALIFORNIA 94102 Apr 13, 1983 I have this day filed Order HEARING DENIED Mosk, J Grodin, J OF THE OPINION THAT THE PETITION SHOULD BE GRANTED. In re: 2d Civ. No. 67772 NATIONAL ENQUIRER, INC. vs. SHIRLEY JONES and MARTY INGELS Respectfully, Clerk 3a APPENDIX C Oral Opinion of the Superior Court of the State of California for the County of Los Angeles (From Transcript of Proceedings, October 25, 1982)* SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES DEPARTMENT 80 HON. ELI CHERNOW, JUDGE No. C 305 009 SHIRLEY JONES, et al., Plaintiff, VS. NATIONAL ENQUIRER, INC., et al., Defendant. [1] LOS ANGELES, CALIFORNIA; MONDAY, OCTOBER 25, 1982; 10:00 A.M. * * * THE COURT: Shirley Jones versus National En- quirer. Counsel, state your appearances. MR. HEARD: =F. Lane Heard, for the Enquirer. MR. ABLON: Paul S. Albon of Hayes & Hume for the plaintiff. MR. LANGBERG: Berry Langberg from Hayes and Hume for the plaintiffs. THE COURT: Who is going to argue? * Spelling of Mr. Ingels’ name has been corrected throughout. 4a MR. ABLON: I will, Your Honor. THE COURT: We will reserve the remaining source issue for the last. Who wants to be heard? MR. HEARD: Your Honor, I would take up the ques- tion of our interrogatories and production request. I un- derstand Your Honor is concerned about the overbreadth. Let me direct my comment, then, to several interroga- tories and the production requests about which I think are not reasonably requested with specificity. In fact, I believe those are the interrogatories and the production requests to which we directed almost all of our argument and to which most of this mountain of paper is attribu- table, and those are the interrogatories which ask the plaintiffs to identify the former and present employees, to identify the celebrities that have been retained in trans- actions, and to identify the client advertisers who have come to Mr. Ingels and requested him to put together these [2] transactions. It is to those three groups of people we have directed most of our argument. THE COURT: Even those, aren’t they unlimited as to time. MR. HEARD: As we pointed out, they are on their face, hut all of these questions go to Mr. Ingels’ busi- ness, and this business is only five years old. It only goes back to ’77, which is two years prior to the date of the article, so we are dealing with a confined time period by the very nature of the request which goes to his business. Second of all, Your Honor, the allegations of complaint are not limited simply to the period ’77 to ’"79—that is the beginning of his business—until the date of produc- tion. These allegations question not only the accuracy of the article as it relates to his past behavior as pre- 79. These allegations also go to the implications of those statements in the article, implications which they have spelled out in the most recent answers to interrogatories. Preliminary indication which they said suggest Mr. In- gels has never cheated any stars, never cheated any client, 5a never cheated any employees. This also bears not only on the truth but with the reputation which is in the lawsuit. THE COURT: Do employees, advertisers and celeb- rities and what else— MR. HEARD: Those are the three categories of in- dividuals who we are asking the plaintiffs to identify. There are two requests for production of documents which also raise questions of overbreadth. The first is the request for documents that go to complaints made by employees against Ingels Inc. or Marty [3] Ingels. The second is a request for complaints made by client ad- vertisers against Mr. Ingels. A third somewhat unre- lated in terms of subject matter but also not overbroad which request production of documents as to interviews given by the plaintiffs which relates to the defendants, the Enquirer or the subject article. We would be happy to address those interrogatories and production requests as to the merits of whether we are entitled to production. We don’t think those par- ticular interrogatories and production requests raise any real question as to overbreadth. As a matter of fact the plaintiffs have answered one production request along those lines and that is production request Number 6 which calls for the production of documents relating to the the American Lutheran Church transaction. THE COURT: If we deal with those, we then sus- tain the other objections—in other words, what you can try to work out a more general narrow agreement or we can deal with those, however we are going to deal with them and then the result—the implication of that is the objection would be sustained to the others and then you have to start on the other subjects of inquiry. MR. HEARD: Well, so much time and so much paper has been devoted to this question of celebrities, clients and employees, and whether there is some overarching trade secret which tries overreaching over the right of privacy. I think it would be well to dispose of that ques- 6a tion because it may permeate other production requests in the future. It has been amply briefed. [4] We would like to resolve that. We think it an improper transac- tion, that is, trade secret. THE COURT: Mr. Ablon? MR. ABLON: In respect to the three categories, I think this court’s ruling at most for a protective order may in fact obviate so much concern, which maybe is [sic—is not] to say we don’t think these matters are privileged any longer but that question may become moot if adequate production [sic—protection] is pro- vided for the plaintiff. Despite that, however, we still feel there is overbreadth when a question asks for all employees at all times. The fact that an article in 1979 claimed or suggested that Mr. Ingels was or did certain things we don’t feel opens up the entire list of his employees and customers for all time. With respect to his client, that is, the people who come to him seek celebrity talent, we have the same problem. I don’t think that any request for anyone who has every come to him for any such information are limited. If it were more limited in light of a protective orders, we would be inclined to go along with it. For example, if it were limited in terms of time up until the time of the article and asked for advertisers for whom there were problems of a particular type—for example, counsel has indicated that they seek all complaints by customers to Mr. Ingels. That would include complaints Mr. Ingels didn’t do something quickly. That is the ordinary day-to-day complaint lawyers get from their clients and anyone who has clients gets from the people with whom they are dealing to the kind of problems that [5] are suggested by this article, which I think are a thrott [sic] different ilk, and I think a limita- tion limiting along those lines would be necessary. I would be glad, for this court’s convenience and to try and facilitate matters, if after we have discussed the protective order situation to go out with counsel and in | ad (a light of the protective order see if we can agree on some more appropriate limitation to the questions; however, I think as the questions now stand they are just overbroad. THE COURT: Let’s talk about the protective order, Mr. Ablon. MR. ABLON: Your Honor, again it is our position that much of the information that is sought here is very private and, certainly, if not strictly within a trade secret or privacy privilege, is sensitive. Seeking the list of clients of Mr. Ingels’ business, seeking information with respect to Mr. Ingels’ sexual activities—which again we don’t deny has some relevance in more limited con- text to initiate this lawsuit—I would think this discovery does not meet that relevance. In light of this, it is basically our position that the law affords no First Amendment protection to the En- quirer from this court’s appropriate discovery protec- tive orders, and we would, along the lines as the court suggested in his tentative ruling, be inclined to go along with that kind of a nvotective order so long as there was a clear indication that—one problem we have, for ex- ample, is that the defendant is a corporation, and we would certainly like to see something in the order that would limit the persons within that corporation who [6] would have access to that material as opposed to just limiting access to the parties themselves. Obviously the more people who have their ears and eyes in tune with this material, the more chance there is that the material might get out. I think we would also like some type, to the extent the court is able to fashion the type of relief, some type of relief that any fruit of the tainted material, so to speak, would also be in the purview of the protected order—that is, if the information obtained let to get other information, the other information would also be Subject to the same limitation, and within those param- 8a eters we would be inclined to go along with Your Hon- or’s tentative ruling. THE COURT: Mr. Heard? MR. HEARD: Your Honor, let me try to restate the basis for our objection. We are not simply being liti- gious in opposing this motion for protective order. It is apart from any First Amendment requirement. Clearly there has to be some good cause shown for a protective order, and if we focus on these interrogatories and production requests we just imentioned—identifica- tion of employees, celebrities, clients—we think there is really no adequate showing that this is the kind of in- formation which is entitled to be protected because it is within the realm of privacy or because it is a trade secret, and that is our basis for opposing a protective order as to that material. Frankly, we don’t even understand what Mr. Ablon is talking about when he wants to say that is the kind of material he wants protected and he wants the fruit of that material [7] protected. We don’t want to belabor the point, but there are very specific legal arguments we think are to be addressed that point out we are not talking about trade secrets here, and the right of pri- vacy is not an overarching privilege which protects com- mercial transactions, which protect the fact of one’s em- ployment, protects the fact celebrities contract with Mr. Ingels or a client can contract with Mr. Ingels in one historic transaction. There is sensitive, personal infor- mation that we have asked for, but it does not permeate these discovery requests. There are three interrogatories that ask for personal information, and that is the interrogatory that bears on his sexual] activities and any photographs that he may have asked to be made. Those interrogatories belong in a separate category, but the bulk of this discovery goes to his business and the transactions he has entered into, and the right of privacy simply doesn’t protect that kind of information. It is directed to an entirely different part. 9a Government snooping and surveillance and collection of material from individuals by employers and govern- ment, that is not involved and it doesn’t provide a basis for a protective order. That it is a trade secret, that is a little bit trickier question, but if you look at Mr. Ingels’ two declarations, Your Honor, they describe his business in the following way: He has a competitive ad- vantage, to be sure, but it is not an advantage that de- pends upon trade secret. His advantage is he is a celebrity and he has friends who are celebrities and he can cal! them up directly and [8] put a business proposition to them, and that is an ad- vantage he has over anybody else in the business, and his wife is herself a celebrity. That is the advantage he has. There is no trade secret, no identifying advertisers who want to use celebrities to commercialize this prop- erty. There is no trade secret with celebrities available. THE COURT: There is another problem you haven’t addressed, and that is clearly on the surface of this case. Your client is a very powerful media source which pub- lished an article that is clearly damaging to the plaintiffs in this case, that they exercised their right to litigate. As a result of that, then they are compelled to provide in- formation to your client, and your client may well end up getting sensitive information about celebrities, very newsworthy information, because of the proper use of the discovery processes. That information, however, is plainly subject to mis- use and abuse that plainly is subject to the use, as a sledge hammer, to hurt those who seek to bring an action against a powerful publication or those who would seek to help people in that situation and that those people who have obligations to provide truthful information may find themselves on the front page of the Enquirer if there isn’t a protective order. MR. HEARD: But, Your Honor, I understand that potential and the concern that the plaintiffs reasonably have. But the question I have in response is: Given the 10a interrogatories we have put to them at this time and the requests we have put to them now, do those requests and interrogatories give good cause for a_ protective order? [9] We haven’t ask for any sensitive information about celebrities. We have asked who they are and who has he done business within the past. We have asked who the clients are who have come to him. It is difficult to un- derstand what is sensitive about having knowledge an advertiser such as Canada Dry comes to him and what the Enquirer could say about this, assuming there is that potential, but we haven’t asked for anything but the identification. The same thing is true of the employees. We have asked for identification. The fact of their employment isn’t something exploitable as a story. There is really only the one category of information which gives rise to legitimate concern, and that is about his sexual activity, photographers and, granted, as we have said in our papers, that is a different problem. THE COURT: But surely you plan to use that in- formation if you get it to ask some further questions. - MR. HEARD: We will indeed. We will want to de- pose, I am sure, employees, clients, and celebrities to find out what the nature of their transaction was, and we will be asking when they worked for them and what they were paid. THE COURT: You are using the legal process to get the first step so you can proceed to get the sensitive information through the legal process. MR. HEARD: I am still not willing to concede where this leads us is to sensitive information, but surely the information we have sought now is not of that type and doesn’t justify a protective order, and we are concerned about the precedence this [10] sets as far as what the plaintiffs in the future are going to claim is within the right of privacy, whether they are going to continue to lla assert that as a ground for withholding information about commercial transactions. We are quite truthfully flabbergasted one would say a commercial transaction involves the right of privacy of the parties to that transaction. that when we are talking about a contract that was entered into, we are not en- titled to find out the parties to this transaction were and what the outlays of the deal were, how much each side was to be paid, and that is the assertion that has been made and the objection raised to our interrogatories. We don’t want to have to meet that repeatedly— THE COURT: What was the Enquirer article about if it wasn’t about a commercial transaction? MR. HEARD: I am not sure I follow Your Honor’s question. THE COURT: Everything said about Mr. Ingels was about his conduct in the context of a commercial transaction? MR. HEARD: Yes, indeed. Yes, indeed, Your Honor. It said, for instance, he cheated his clients and he cheated the celebrities and he cheated them with regard to deals he put together and brokered, but any more than this is a right to privacy. On the part of General Motors, if it was claimed it swindled a European subsidiary it had, and yet we don’t think the contract of the swindle involve sensitive and persona] information? It is a transaction in the market- place, and it is not something that is private. It essen- tially is not— [11] THE COURT: Mr. Ablon, you may respond. MR. LANGBERG: May I make one comment on this point? THE COURT: No. Mr. Ablon will argue it. MR. ABLON: Your Honor, I guess our law firm has had the benefit of representing other plaintiffs against National Enquirer, and when I say “benefit,” I mean in terms of seeing the practices of the Enquirer in other contexts. We have seen, for example, in the Carol Bur- 12a net case, Your Honor, that merely the presence of two celebrities at a location in Washington D.C. was a basis of a fabricated story. The creation of events in trial, there was no corroboration for it at all. The point being though, Your Honor, is that first, I think the details of a financial transaction between Mr. Ingels’ client that comes to him and says, “I want to purchase celebrity talent for X amount of dollars,” is not something inherently within the realm of public in- formation. As I understand what is within the realm, it is to anything that is expectation of privacy. We believe commercial transactions, particularly where you are dealing not only with Mr. Ingels’ rights but the rights of people who come to him with budgets and other information which they may not want made pub- lie with respect te these transactions, are also involved. I have also been advised by Mr. Ingels the contracts which were entered specifically have a confidentiality pro- vision, and though I have not informed the court, I would be glad to supplement the record with a sup- plemental declaration to that effect, certainly, and pre- sent the other end of that [12] transaction that Mr. Ingels entered into with a celebrity. Celebrities are well known to like no figures and amounts of money they receive in terms of their dealings to be made public information. I also would say that the fact that Mr. Ingels is a celebrity himself does not, I think, preclude him from claiming that he has some right of confidentiality and privacy with respect to his transaction. I think his declaration makes clear who uses his kind of service which is not all people seeking celebrities is in and of itself an asset, an important part of his assets. As I understand trade secrets, anything that gives you that competitive advantage that assists you in the mar- ketplace can come within the rubric and be subject to the court’s protection. 13a THE COURT: Briefly, Mr. Heard. MR. HEARD: I will be very brief, Your Honor. I think there is basic confusion about what the legal standard is. The standard for invoking the right of privacy is not that the person have an expectation of privacy, it is it be involved with personal matter which if exposed to publicity would be highly offensive or ob- jectionable. If the standard were simply there was an expectation of privacy, there would be no commercial lit- igation in the courts in which a protective order wasn’t appropriate for the whole scope of the business informa- tion produced as a matter of course. Likewise, the standard for trade secrets is not just anything that gives competitive advantage; it must be secret and something used in the continuous course of the business. My basic problem here is the legal stand- ard which Mr. [13] Ablon has relied on is inaccurate. I would be happy to cite the cases, but I know the court has read them. I think he is simply wrong. THE COURT: I am not sure expectation of privacy is enough, but I think the California right of privacy is broader than the more general rights that exist in the country. In any event, I think this is the appropriate time and place for a protective order, at the beginning of court ordered discovery, that I certainly anticipate that the parties will be able to resolve a number of their dis- putes, and they should have as a background for that resolution the protective order. The protective order does raise significant questions because publication is involved on both sides of it. That one has to balance the danger of a restraint on a publi- cation against the danger of an abuse of the power of that publication to unfairly prejudice the rights of liti- gants to come to court to seek redress for an alleged wrong. I think the plaintiffs are quite correct in seeking an order that would prevent the publication of information l4a that is the fruit of that information. I think the En- quirer should have fair notice of that so that they can narrow the scope of what they are seeking through the court’s process if they so chose. In other words, we have —the Enquirer asked a series of questions. Maybe the Enquirer is planning a story tomorrow on celebrities dealing with Marty Ingels that they may have gathered everything they plan to publish in that story already. [14] I want to make it very clear that at least this court’s view is that once the order is issued and informa- tion is obtained by the court’s processes, including in- formally after the order is in effect, then the Enquirer would be prohibited from publishing what they learned and the fruits of that, and I think the only way to pre- vent an abuse of process is to presume and put the bur- den on the Enquirer. If they publish a story on the face of it looks like it was led to by discovery in the case, then that is a violation of the court’s order unless they demonstrate to the contrary. Moreover, because of the potential for an abuse is so great, at least this court would view a violation of the order very, very seriously and would contemplate very drastic sanctions if the court became convinced that the court’s process was being abused to unfairly discourage litigation against an important publication; so I do want the Enquirer to have an opportunity to ask only as nar- row questions as it decides necessary for the purpose of the litigation. Do you understand what I am saying. MR. HEARD: I don’t understand, frankly. That re- fers to asking narrow questions? THE COURT: Because the Enquirer will be pro- hibited from publishing information it gets to some of these questions—Ordinarily, if you didn’t have that con- straint, the lawyer usually prefers to ask as broad a question in discovery as possible. The strategy of the questions that have been asked, asking for everybody that Mr. Marty Ingels slept with whenever, has it any lia relation to the article or any limitation on time? [15] Now, it may be that the Enquirer would prefer not to conduct such broad discovery so that its ability to pub- lish stories it wants to publish is not constrained by it in this case. MR. HEARD: May I respond, Your Honor? THE COURT: Sure. MR. HEARD: To take the example Your Honor has just mentioned, the breadth of the discovery that has been asked for asking for all employees or asking for all sexual activities, Your Honor, it seems to me—I stand ready to be corrected—that is exactly as necessitated by the allegations in this case. THE COURT: No, that is not correct. MR. HEARD: Well, Your Honor, when Mr. Ingels alleges he never cheated employees, then it is difficulty to narrow a request and say our concern should only be with those employees, say, for a two-year period from "77 to ’79. If he says, as he did in his Answers to In- terrogatories, that there is an implication he has been unfaithful to his wife, how do we meet that allegation without asking the broad question, whether he has ever been? They listed roughly six to seven pages of what they have read to be direct statements in the article or implication or inferences of the article, al! of which they say is false. We have to meet each of the implications. THE COURT: Mr. Heard, you may have ultimately concluded that the apprepriate litigation that is to take place is to conduct—at least initially—to conduct as broad a discovery as possible. That is open. MR. HEARD: I understand what Your Honor is say- ing what the penalty is. [16] THE COURT: No. To the extent that you chose to conduct broad discovery, the the Enquirer will be bound broadly not to publish information it gets in re- gard to the discovery; and to the extent you chose to conduct narrow discovery, then the constraint will be more narrow, and I want to give you an opportunity to 16a think through your tactics. I know that there is a right answer that you should subject them to more narrow dis- covery, only you may wish to reflect to on your tactics as a light constraint on your client. MR. HEARD: I understand the point. Let me state what I take to be two problems. First is just a practical problem of an attempt to do narrow discovery requests dealing with these plaintiffs given our track record. One might, as Mr. Ablon, has suggested, ask for the produc- tion of documents that relate to the transaction on which these was some complaint that the client was cheated. That would certainly be a narrow one, a request. The fact of the matter is the article mentions one transaction in particular, Steven Allen and the Ameri- ean Lutheran Church. Plaintiffs have alleged it was false to say anyone was cheated. But those are docu- ments they provided us now, and we have had a chance to look at them. And no one looking at those documents would doubt all parties to that transaction—the celebri- ties and the clients—believed they were cheated, wrote it in letters and sent it in. Yet apparently based upon the allegation they are making, they would never produce those documents, then they say they don’t contain alle- gations of cheating. [17] THE COURT: You may end up seeking winning broad discovery. That is not the point at the moment. MR. HEARD: I understand that. That leads us to a second problem, Your Honor, and that is the scope of the protective order and the point Your Honor states that the burden should be on the En- quirer to prove that discovery was not the basis for some- thing they subsequently published. Your Honor, we would point to the problem that was recognized by the courts in New York in a case, Re- liance Insura’ @ versus Barrons. They said they thought these kinds 0 orders were impossible of enforcement and the problem there would be exacerbated here if the bur- den is to be on the Enquirer. 17a It is not uncommon for the Enquirer sources, as the court can imagine, to have information about celebrities of varying types. They have got addresses and phones numbers. Those are fairly easy to come by. If we pub- lish an article about somebody whose names is men- tioned, the court is placing the burden on us to come in and not only justify which we think is imposition enough, First Amendment rights serious already, and you are saying come in and if you have confidential sources for those articles, the burden is going to be on you to identify those confidential sources to the court and show what information they provided and that those confidential sources had information independent of the discovery in the case. It is not only placing a burden on us that is the prob- lem; it is a burden to lead to an implication of the First [18] Amendment right which is if we have confidential sources, we have to come in and discover those, not only confidential source in this case but confidential source related to other articles; so we think putting that twist on the court’s protective order presents problems above and beyond those in any other cases discussed before. THE COURT: Correct. That is why I think it im- portant to make that up front. Of course, it is clear that the one thing that could not happen would be that the Enquirer or any individual reporter would be held in contempt for failing to discover [sic—disclose] confiden- tial source. Indeed the sanction—the ultimate sanction that could possibly be imposed for the Enquirer publishing some- thing that appeared to be the fruit of its discovery in this lawsuit in violation of the court’s order, the ultimate sanction could be the entering of the judgment against the Enquirer in this case. It could not be an order to disclose-—it could not be a contempt order to disclose— to punish one for not disclosing confidential source, nor even would I anticipate an order would be made directing the Enquirer to disclose its source. 184 The Enquirer then would have the burden of doing whatever it is going to do to establish independent source if it publishes one of these things, and the example you raised, Mr. Heard, demonstrates that it may be desirable to limit discovery. If you don’t need to get celebrities’ phone numbers through the court process, then plainly the Enquirer would be better off not using it, and vice versa if the Enquirer would be better off as an arts pro- duction taking advantage of sources in the community, [19] then that is what it should do. MR. HEARD: Your Honor, it seems to me it puts the Enquirer in a very difficult position. Whether or not you say the sanction may be a judgment against the En- quirer, they can chose between revealing confidential source—which they need not do under California statute —or they may choose not to publish a story which relies on confidential source because the plaintiffs in this law- suit might say this comes close, this looks like an article that was based on discovery in the case, and the Enquirer will be given a very unpleasant choice, and the choice it would seem contravenes an important First Amend- ment interest when they decide we must go to Judge Chernow and justify the article and disclose our source for the story or give in is a close question. We better not even publish this story even though we have an in- dependent source because the risks are too great—we are going to have to break a pledge of confidentiality or we are going to have to risk the ultimate sanction of losing this lawsuit. It seems to me, Your Honor, that, putting aside whether a protective order is a prior restraint, if we even talk about hidden sensitivity to First Amendment interest, this kind of order creates a real problem par- ticularly when we just confront the predicate. Your Honor is talking about potential for abuse, not abuse which relies on the ability given on these inter- rogatories and their production requests. We are simply not to that stage of asking the kind of objectionable in- 19a terrogatories that intrude on the personal sensitivity of [20] these people, and we are not there yet, and we may not get there. THE COURT: That does raise one additional point. I think after the order is issued, I would hope that the Enquirer would promptly seek a writ so we can have the parties know at a very early stage whether the En- quirer’s arguments would find more favor with the Court of Appeal so that then the information that is disclosed by court order then can confidentially be treated as con- fidential or not, and the Enquirer would then know whether it would take those risks or not in publishing ‘nformation on the face of it appeared to have derived in from court ordered sources. MR. HEARD: I understand. Your Honor. May I clarify one point? Understanding the terms of the protective order Your Honor feels appropriate, where do we stand as to whether these interrogatories and production requests which we have singled out and discussed are objectionable on the grounds that plaintiffs have also before—that is, they are trade secrets, they have fallen within the right to privacy and he shouldn’t have to produce information at all? THE COURT: If, as Mr. Ablon said, with protective order many of these objections vanish. MR. HEARD: That is the uncertainty we have com- ing from our meet and confer. We were told further information would be forthcoming. We didn’t know whether this was all of the information requested. THE COURT: I would in discovery and subject to some [21] limitation, and I think Mr. Ablon’s sugges- tion you meet this morning to work out additional limita- tions is a good one. That time is a major limitation that I see, and others may be appropriate. I am not sure. The next item will be for you to meet this morning and see what you can come up with. * * * * 20a APPENDIX D Order of the Superior Court of the State of California for the County of Los Angeles SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES No. C 305 009 SHIRLEY JONES and MARTY INGELS, Plaintiffs, V. NATIONAL ENQUIRER, INC., et al., Defendants. ORDER RE DISCOVERY HEARINGS OF OCTOBER 25, 1982 On October 25, 1982, at 9:00 A.M., the motions of plaintiffs, Marty Ingels and Shirley Jones, for a protec- tive order, for an order compelling production of docu- ments, and for an order compelling further answers to interrogatories, and the motions of defendant, National Enquirer, Inc., for an order compelling answers to inter- rogatories and compelling production of documents, came on regularly for hearing in Department 80, the Honor- able Eli Chernow, Judge presiding. Plaintiffs appeared through counsel, Hayes & Hume, a professional corporation, by Paul S. Ablon, Esq., and Barry B. Langberg, Esq., and defendant, National En- quirer, Inc., appeared by its counsel, Williams & Con- nolly, F. Lane Heard, III, Esq. i Based upon the papers filed in connection with these motions, the pleadings, records and papers on file in this matter, and the oral argument of counsel, the court now makes and enters the following order: 2la 1. With respect to plaintiffs’ motion to compel further answers to interrogatories, defendant, National Enquirer, Inc. is ordered to answer without objection interrogatories 1A, 2A, 6A, and 17 within thirty days from the date this order is signed. 2. With respect to plaintiffs’ motion to compel preduc- tion of documents, defendant, National Enquirer, is or- dered to identify without objection and produce without objection the documents categorized in plaintiffs’ request No. 3 and No. 4 within thirty days of the date this order is signed. 3. With respect to plaintiffs’ motion to compel fur- ther answers to interrogatories re Newsman’s Source, defendant, National Enquirer, Inc., is ordered to identify as sources each and every person as yet heretofore un- identified as a source of information for the article which is the subject of this litigation, within thirty days of the date of signature of this order. Plaintiffs have made a sufficient showing of effort and continuing burden such that all First Amendment criteria, if any, have been sat- isfied. Moreover, it would be inequitable and unduly ex- pensive to require plaintiffs to conduct further investiga- tion, especially in light of the inaccurate and inconsistent information about sources previously provided by defend- ant upon which plaintiffs have relied to their detriment. 4. With respect to defendant, National Enquirer, Inc.’s motion for an order compelling answers to inter- rogatories and production of documents, said motion is denied. However, pursuant to stipulation of the parties, it is ordered that plaintiff, Ingels, provide to defendant, National Enquirer, Inc., for the period commencing with January 1, 1977, and ending one year after the publica- tion of the subject article, the following: (a) The identity of all Ingels, Ine. employees then employed; 22a (b) The names of all Ingels, Inc. celebrity clients who signed a contract with that entity during the specified period and received monies pursuant thereto; (ec) The names of all Ingels, Inc. advertiser clients for which client files were opened during the specified period. 5. The information required to be provided pursuant to Paragraphs 4(a), 4(b) and 4(c) shall be furnished within thirty days after the date upon which any writ, pretrial or other appellate proceeding or series of such proceedings originally initiated by defendant, and chal- lenging any part of the protective order embodied in this document, shall become final for all purposes and not subject to further challenge; or within 30 days af- ter the date defendant files with this court, after prior service on plaintiffs, a written waiver of any further right to challenge in pretrial appellate proceedings the validity or enforceability of any part of this order. 6. Production by plaintiffs of any documents or infor- mation required pursuant to Paragraphs 4(a), 4(b) or 4(c) of this order which are claimed by any plaintiffs to be protected by rights or privileges of privacy, to be pro- tected by any privilege of confidential business informa- tion, or which would violate confidence if disclosed, as for example, but by way of illustration and not limita- tion, the identiy of employees of Ingels, Inc., the identi- ties of celebrities or clients with whom any plaintiff or Ingels, Ine. has dealt, or any information concerning any sexual experience or sexually related material of any plaintiff, (hereinafter, such documents and/or informa- tion are referred to as “protected material’’), shall only be produced conditioned upon strict compliance with this protective order. 7. It is further ordered that the following procedures be applied to documents and information produced by plaintiffs pursuant to defendant’s first set of interroga- 23a tories and first set of requests for production of docu- ments or pursuant to subsequent requests by defendant: (a) Any documents or information produced under this order which, in the judgment of plaintiffs, contain trade secrets not heretofore publicly disclosed or matters within the scope of Article I, Section 1 of the California Constitution not heretofore publicly disclosed, may be designated as confidentia! by plaintiffs. Plaintiffs’ attor- neys shall advise defendant’s attorneys before or at the time of producing any documents or information of any material that should be treated confidentially. Defend- ant may object to any such designation. If plaintiffs and defendants cannot resolve defendant’s objections, plaintiffs shall within ten days after being requested to do so by defendant present the question to the court for resolution. (b) All documents and information designated as con- fidential (hereinafte: referred to the “Confidential Docu- ments”) shall be subject to the provision of this order. (ec) Counsel for defendant shall inspect all Confiden- tial Documents provided by plaintiffs at a time and lo- cation agreed upon by counsel. Upon request, one copy of any Confidential Document shall be provided to de- fendant at its expense. Each copy so provided shall be marked as a Confidential Document subject to the terms of this order. (d) Confidential Documents or copies thereof shall be made available only to the attorneys providing counsel to defendant in this proceeding; any persons regularly employed by such attorneys assisting them in this litiga- tion; the officers and employees of defendant with whom such attorneys find it necessary to consult in the defense of this litigation; and experts consulted by counsel to provide advice, assistance, or testimony in this litigation. Such persons shall maintain the confidentiality of all Confidential Documents. Each non-attorney to whom dis- closure is made shall sign a copy of this Order, signify- 24a ing his agreement to be bound by its terms and to be subject to the jurisdicaion of this court in all matters relating to this order. (e) No copy of any Confidential Document shall be made except at the express direction of counsel for defendant. (f) Confidential Documents shall be used in deposi- tions in a manner that will preserve the confidentiality of those portions of the transcript that deal with such information. Upon transcription of any deposition, soun- sel for plaintiffs may, in accordance with paragraph A of this order, designate those pages containing informa- tion that he contends should be treated confidentially. Any objection by defendant to such designation shall be resolved pursuant to the procedure set forth in para- graph A. Any such pages shall be marked in accordance with paragraph C, and the cover of the transcript shall bear the legend “Contains Confidential Material.” (g) The Confidential Documents shall be used solely for the purpose of preparing this action for trial and at the trial thereof and for no other purpose. (h) No Confidential Document or any information contained therein or discovered as a result of access to Confidential Documents which relates to plaintiffs, their business(es), or their relatives shall be published in any publication owned or controlled by defendant. (i) Plaintiff may seek by noticed motion specific en- forcement of this order and/or sanctions for its viola- tion. All papers filed in connection with any such mo- tion shall be filed under seal. Counsel may request hear- ing of such motion in chambers. Upon a showing that defendant has published or caused to be published infor- mation described in paragraph H, it shall be presumed that defendant has violated this order. The burden shall be on defendant to establish by a preponderance of the evidence that any such information published or caused 25a to be published by it was obtained independently and not as a result of access to Confidential Documents. (j) Nothing in this order shall prevent defendant from publishing information identical to that contained in Confidential Documents, provided that such informa- tion was not discovered as a result of access to Confi- dential Documents. (k) At the conclusion of this litigation, all Confiden- tial Documents and copies made thereof shall be promptly returned to counsel for plaintiffs. (1) Nothing herein shall preclude any party from applying to the court for any modification of this order as may be appropriate. DATED: JAN. 5, 1983 /s/ Eli Chernow ELI CHERNOW Judge of the Superior Court 26a APPENDIX E Constitutional Provisions The First Amendment to the Constitution of the United States provides in relevant part: “Congress shall make no law . . . abridging the free- dom of speech, or of the press... .” The Fourteenth Amendment to the Constitution of the United States provides in relevant part: “Section 1 .... No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, with- out due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0871%3A1. Public record. Not legal advice.