In Re Appeal of Goodfader

367 P.2d 472, 45 Haw. 317, 1 Media L. Rep. (BNA) 2597, 1961 Haw. LEXIS 78

• Court: Hawaii Supreme Court
• Decided: November 3, 1961
• Docket: 4143
• Status: Published

Opinions

OPINION OP THE COURT BY

CASSIDY, J.

We are concerned on this appeal with the authority of a court to compel a newspaper reporter to divulge his source of confidential information.

Nesta M. Gallas, hereinafter referred to as the plaintiff, instituted an action in the court below against the members of the Civil Service Commission of the City and County of Honolulu, seeking her reinstatement as personnel director of the commission, from which position she had been discharged by a three-to-two vote of the members of the commission at a meeting held on December 16, 1957. It is alleged that the ouster was arbitrary and illegal. The gravamen of the complaint is that the chairman of the commission, Pedro N. Sanchez, and two members, Albert P. Moniz and Masao Watanabe, secretly contrived, conspired and agreed to oust plaintiff from her position and that pursuant to- their agreement they summarily did so at tlie meeting of December 16, 1957, without granting her notice and an opportunity to be heard and without conferring with or granting the two remaining members of the commission, K. C. Choy and Elsie McG. Burke, an opportunity to deliberate on or discuss the dismissal.¹

Before issue was joined, the defendants, on June 26, 1958, took the deposition of appellant, Alan L. Goodfader, a reporter for a daily newspaper, who will hereinafter be referred to' as the “deponent.” In his deposition the deponent testified on direct examination that he attended the meeting of the Civil Service Commission on December 16, 1957, and that he had arranged to have a photographer there. When asked what had led him to call the photographer to attend the meeting he answered: “I believed that an attempt might be made to fire Mrs. Gallas as Personnel Director.” He stated his belief was due to “a combination of things,” including rumors he began to hear of friction between Mrs. Gallas and some of the commissioners, late in 1956. He said he also noted frequent disagreements between plaintiff and some of the commissioners, relating particular instances, and finally that, “About a week and a half before Mrs. Gallas was fired, I received confidential information that an attempt to fire her Avas being considered.”

On cross-examination the deponent refused to disclose where or from whom he had obtained his information that there might be an attempt to dismiss the plaintiff. He stated: “I’m not at liberty to divulge my source of information” ; and as grounds for his refusal that: “It would be a very grievous breach of my professional ethics for me to say anything which might lead back to my source.” He testified lie elieeked the information and was unable to discover any leads to substantiate it but that he became convinced from circumstantial evidence “there was some truth to it.” He also testified he “became convinced that Mrs. Gallas knew nothing of it.”

On April 3, 1959, plaintiff filed a motion to compel deponent to answer the inquiry on the source of his information respecting her dismissal. A hearing was had on the motion on May 11,1959. At the close of the hearing the court ruled in favor of the movant and directed her counsel to prepare an appropriate order. Under date of May 22, 1959, the court signed an order requiring deponent, after five days’ written notice to defendants of time and place, to appear before the officer who had taken his deposition and answer the questions he had previously refused to answer. The record reveals that on the same date, that is, May 22, 1959, counsel for the plaintiff and for the deponent again appeared before the court and that one of deponent’s counsel orally requested the court to reconsider its ruling on the motion to compel. The clerk’s minutes indicate that the counsel informed the court he had understood, from a previous conversation with the judge, that the court would entertain such a motion but that the court stated it had understood associate counsel for deponent would file an order for an interlocutory appeal by that date in accordance with the court’s prior advice that he could do so and that the court did not “mean that as an invitation to reopen the matter.” The clerk’s minutes further show that, after argument, the only ruling or direction of the court was to instruct counsel for plaintiff and deponent to collaborate on an order reserving the question to the supreme court, or if counsel were unable to agree to an acceptable order then the court would issue an order allowing an interlocutory appeal.

The order of May 22, 1959, compelling deponent to answer was filed on June 1, 1959. On the same date an order was entered allowing deponent ten days in which to take an interlocutory appeal from the order compelling him to answer. The interlocutory appeal has been perfected and in it appellant attacks the order compelling answer on grounds set forth in his specification of errors, as follows:

“1. The trial court erred in ordering deponent to divulge his confidential source of information relating to the administration of the government.

“2. The trial court’s order compelling the deponent to disclose his confidential source of information concerning the doings or misdoings of a public official constitutes an unconstitutional abridgement of the freedom of the press guaranteed by the First Amendment of the United States Constitution and Section 3 of Article I of the Constitution of the State of Hawaii.²

“3. The trial court erred in entering said order because the interest to be served by compelling disclosure of the deponent’s source of confidential information under the circumstances here present does not justify any impairment of press freedom.

“á. The court erred in entering said order because public policy requires the safeguarding of such sources, at least in the absence of some even more compelling societal need.

“5. It was error for the trial judge to refuse to exercise judicial discretion and in holding that he had no discretion under Rule 30 but to compel deponent’s testimony.”

We have been favored with thorough briefing by counsel for both the appellant and the amicus on the constitutional aspects of this case and are duly impressed by the citation of and the quotations from many of the landmark cases of the pursuasive sweep intended to be given to the Federal Bill of Rights, generally, and with particular reference to the protection afforded by the privileges covered by the First Amendment. We cannot and do not ignore the force of the argument made on appellant’s behalf in that respect. There can be no question but that each of the First Amendment freedoms and privileges is to be zealously protected against infringement. The particular freedom involved in this case, that of the press, is one of this country’s greatest and most cherished heritages. Its guarded status as well as the reasons and necessity for preserving that status have been affirmed and reaffirmed by the Supreme Court of the United States in the many persuasive pronouncements of that Court to which we are referred and which we have carefully considered.

As appellant emphasizes, one of the primary purposes of the freedom-of-press clause of the First Amendment is to preserve the right of the American people to full information concerning the doings or misdoings of public officials in order to guard against maladministration in government. This fundamental truth is recognized and stated in Grosjean v. American Press Co., 297 U.S. 233, 250, as follows:

“The predominant purpose of the grant of immunity here invoked was to preserve an untrammeled press as a vital source of public information. The newspapers, magazines and other journals of the country, it is safe to say, have shed and continue to shed, more light on the public and business affairs of the nation than any other instrumentality of publicity; and since informed public opinion is the most potent of all restraints upon misgovernment, the suppression or abridgement of the publicity afforded by a free press cannot be regarded otherwise than with grave concern. * * * A free press stands as one of the great interpreters between the government and the people. To allow it to be fettered is to fetter ourselves.”

Another landmark case referred to is Near v. Minnesota, 283 U.S. 697, in which, at p. 716, the historic concept of freedom of the press is pronounced thusly:

“The exceptional nature of its limitations places in a strong light the general conception that liberty of the press, historically considered and taken up by the Federal Constitution, has meant, principally although not exclusively, immunity from previous restraints or censorship. The conception of the liberty of the press in this country had broadened with the exigencies of the colonial period and with the efforts to secure freedom from oppressive administration. That liberty was especially cherished for the immunity it afforded from previous restraint of the publication of censure of public officers and charges of official misconduct.”

The broad sweep of the First Amendment as applied to the press in the gathering of news is stated in Associated Press v. United States, 326 U.S. 1, at p. 20, as follows:

* * The First Amendment, far from providing an argument against application of the Sherman Act, here provides powerful reasons to the contrary. That Amendment rests on the assumption that the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public, that a free press is a condition of a free society.”

In Bridges v. California, 314 U.S. 252, the basic purpose underlying the Bill of Rights generally and the scope of the protection of the press particularly is clearly stated at p. 265, as follows:

“* * * No purpose in ratifying the Bill of Rights was clearer than that of securing for the people of the United States much greater freedom of religion, expression, assembly, and petition than the people of Great Britain had ever enjoyed. It cannot be denied, for example, that the religious test oath or the restrictions upon assembly then prevalent in England would have been regarded as measures which the Constitution prohibited the American Congress from passing. And since the same unequivocal language is used with respect to freedom of the press, it signifies a similar enlargement of that concept as well. Ratified as it was while the memory of many oppressive English restrictions on the enumerated' liberties was still fresh, the First Amendment cannot reasonably be taken as approving prevalent English practices. On the contrary, the only conclusion supported by history is that the unqualified prohibitions laid down by the framers were intended to give to liberty of the press, as to the other liberties, the broadest scope that could be countenanced in an orderly society.”

However, despite the broad scope and protective status of the First Amendment freedoms and privileges, it is clear that none of them is absolute, and that whether, in any given case, an asserted right under that amendment will prevail or not depends upon the particular circumstances involved and the weighing and balancing of the protection afforded by the right asserted against the purposes that would be defeated or denied by recognition of the freedom or privilege. The private or individual interest involved must, in each case, be weighed in balance against the public interest affected. In Konigsberg v. State Bar of California, 366 U.S. 36, this well established principle is stated, at pp. 49-51, as follows:

“At the outset we reject the view that freedom of speech and association (National Asso. for Advancement of Colored People v. Alabama, 357 US 449, 460, 2 L ed 2d 1488, 1498, 78 S Ct 1163), as protected by the First and Fourteenth Amendments, are ‘absolutes.’ * * * Whenever, in such a context, these constitutional protections are asserted against the exercise of valid governmental powers a reconciliation must be effected, and that perforce requires an appropriate weighing of the respective interests involved.” '

See also Watkins v. United States, 354 U.S. 178, 198; National Assn. of Colored People v. Alabama, 357 U.S. 449; Barenblatt v. United States, 360 U.S. 109, 126; Communist Party v. Subversive Activities Control Board, 367 U.S. 1, pp. 90-91.

Another fundamental principle inherent in our form of government as an essential part of due process of law is that a litigant, when resorting to the courts for redress of grievances or determination of rights, is entitled to judicial aid in compelling the attendance and the testimony of witnesses. Correlatively, every person, properly summoned, is required to attend court and give his testimony unless specially exempted or privileged. “[I]t is also beyond controversy that one of the duties which the citizen OAves to his government is to support the administration of justice by attending its courts and giving his testimony whenever he is properly summoned.” Blackmer v. United States, 284 U.S. 421, 438.

In Blair v. United States, 250 U.S. 273, at p. 281, the Court elaborates on the subject, as follows:

“In all of these provisions, as in the general law upon the subject, it is clearly recognized that the giving of testimony and the attendance upon court or grand jury in order to testify are public duties whieh every person within the jurisdiction of the Government is bound to perform upon being properly summoned, and for performance of which he is entitled to no further compensation than that which the statutes provide. The. personal sacrifice involved is a part of the necessary contribution of the individual to the welfare of the public. The duty, so onerous at times, yet so necessary to the administration of justice according to the forms and modes established in our system of government (Wilson v. United States, 221 U.S. 361, 372, quoting Lord Ellenborough), is subject to mitigation in exceptional circumstances; there is a constitutional exemption from being compelled in any criminal case to be a witness against oneself, entitling the witness to be excused from answering anything that will tend to incriminate him (see Brown v. Walker, 161 U.S. 591); some confidential matters are shielded from considerations of policy, and perhaps in other cases for special reasons a witness may be excused from telling all that he knows.

“But, aside from exceptions and qualifications— and none such is asserted in the present case — the witness is bound not only to attend but to tell what he knows in answer to questions framed for the purpose of bringing out the truth of the matter under inquiry.

“He is not entitled to urge objections of incompetency or irrelevancy,, such as a party might raise, for this is no concern of his. Nelson v. United States, 201 U.S. 92, 115.”

The Supreme Court of the United States has never ruled ou the question of whether compelling a reporter to disclose his confidential news source constitutes an infringement of the freedom of the press.³ Our attention has been directed to one case, Burdick v. United States, 236 U.S. 79, in which that Court upheld the right of an editor to refuse to reveal his source of information. The right asserted was, however, under the Fifth, and not the First, Amendment. The effect of the distinction is clearly pointed out in Barenblatt v. United States, supra, at p. 126, as follows:

“[T]he protections of the First Amendment, unlike a proper claim of the privilege against self-incrimination under the Fifth Amendment, do not afford a witness the right to resist inquiry in all circumstances. Where First Amendment rights are asserted to bar governmental interrogation resolution of the issue always involves a balancing by the courts of the competing private and public interests at stake in the particular circumstances shown.”

Appellant contends that the freedom to gather news is inseparable from the freedom to print news, that both are equally indispensable to a free press and therefore a restraint on gathering news (such as would occur in the absence of a reporter’s ability to assure the confidentiality of his news sources) is, in itself, an infringement of the free press clause of the First Amendment. We readily perceive the disadvantages to a news reporter where his desire to remain silent under a pledge of confidentiality is not accommodated, but we are unable to find, in any of the many decisions touching on the First Amendment that we have been referred to and have considered, any basis for concluding that the denial of a claim under the newsman’s code constitutes an impairment of constitutional rights.

In arguing the point, appellant incidentally refers to a report of the New York Law Revision Commission’s exhaustive study on the problems of protecting newsmen against disclosure of news sources and quotes from the report as follows: “The newsman’s case differs from other cases -where no privilege exists as to information obtained in confidence, in that the newsman is performing the important function of keeping the public informed. A privilege to newsmen may therefore be justified when a privilege to others receiving information in confidence would not.” State of New York Legislative Document (1949) No. 65 (A), p. 4.

While the statement quoted reflects the commission’s views and is one of the bases for its recommendation to the New York legislature that a privilege “with safeguards essential to the protection of the public interests” may be safely granted by the legislature to newsmen, it clearly affords no support for the argument that a newsman’s privilege exists on a constitutional or any other basis. In this connection it might be noted, as more in point, that the same report also states (at p. 5) : “The present absence of a privilege to newsmen does not infringe on the freedom of the press.. Constitutional guarantees when enacted did not themselves grant the privilege. The power to compel disclosure has stood side by side with the constitutional guarantee of freedom of the press since the enactment of the Bill of Rights. There is no more infringement of constitutional rights in compelling a newsman to disclose the sources of his information than there is in compelling any other person to make a disclosure. No limitation whatever on the right to ppblish is imposed.”

We have not been convinced that there is a First Amendment protection available to deponent. However, in the absence of any authoratative ruling by the court having the final say on the matter, we will assume, for the purposes of this case, that the forced disclosure of a reporter’s confidential source of information may, to some extent, constitute an impairment of the freedom of the press. We nevertheless conclude, in accord with the analysis and the holding on the same hypothesis in Garland v. Torre, 2 Cir., 259 F. 2d 545, that such an impairment may not be considered of a degree sufficient to outweigh the necessity of maintaining the court’s fundamental authority to compel the attendance of witnesses and to exact their testimony if not otherwise privileged or protected.

In holding the Federal Constitution afforded a reporter. no right to refuse to disclose a confidential news source, the court stated in the Garland case at pp. 548-549:

“As to the Constitutional issue, we accept at the outset the hypothesis that compulsory disclosure of a journalist’s confidential sources of information may entail an abridgement of press freedom by imposing some limitation upon the availability of news. * * *

“But freedom of the press, precious and vital though it is to a free society, is not an absolute. What must be determined is whether the interest to be served by compelling the testimony of the witness in the present case justifies some impairment of this First Amendment freedom. * * *

“Freedom of the press, hard-won over the centuries by men of courage, is basic to a free society. But basic too are courts of justice, armed with the power to discover truth. The concept that it is the duty of a witness to testify in a court of law has roots fully as deep in our history as does the guarantee of. a free press. * * *

“If an additional First Amendment liberty — the freedom of the press — is here involved, we do not hesitate to conclude that it too must give place under the Constitution to a paramount public interest in the fair administration of justice.”

Since we hold the deponent has no constitutional right to refuse to answer questions respecting his source of information, the next question is whether he is protected against disclosure on any other basis or for any other reason. This brings us to direct consideration of Rule 26, H.R.C.P.

Paragraph (a) of Rule 26 provides, in part, that “Any party may take the testimony of any person, including a party, by deposition upon oral examination or written interrogatories for the purpose of discovery or for use as evidence in the action or for both purposes.” Paragraph (b) of the rule specifies the scope of examination permitted, as follows: “Unless otherwise ordered by the court as provided by Rule 30(b) or (d), the deponent may be examined regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the examining party or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of relevant facts. It is not ground for objection that the testimony will be inadmissible at the trial if the testimony sought appears reasonably calculated to lead to the discovery of admissible evidence.” (Emphasis added.)

The term “not privileged” as used in Rule 26 and in the other discovery rules refers to privileges as the term is understood in the law of evidence (United States v. Reynolds, 345 U.S. 1, 6), and it is a firmly established principle of law that in the absence of statutory grant a newsman has no evidentiary privilege permitting him to refuse to disclose the source of information given to him in confidence.

“It is clearly the general rule that communications made to a journalist do not enjoy any privilege against use as evidence, and newspapermen may be compelled to reveal information given to them in their professional capacity.” 102 A.L.B. 771.

“The rule of privileged communications does not, in the absence of statute, apply to communications to a newspaper editor or reporter, for, although there is a canon of journalistic ethics forbidding the disclosure of a newspaper’s source of information, it is subject to qualification and must yield when in conflict with the interests of justice.” 97 C.J.S., Witnesses, § 259, p. 743.

“Unless otherwise specifically provided by statute, communications to newspapers or to newspaper reporters or editors are not privileged. And .so, a reporter cannot claim exemption as a witness from answering a question, on the ground that he had received the information under a promise that he would not divulge the name of his informant, and that to do so would subject him to ridicule and contempt, and would cause him to lose his position as a newspaper reporter.” 58 Am. Jur., Witnesses, § 546, p. 305.

In 1914, Judge Clemons, in denying the efficacy of an editor’s claim of privilege in this jurisdiction, stated in In re Wayne, 4 U.S. Dist. Ct. Haw. 475, at p. 476:

“In the opinion of the court, the position of the witness is untenable. Though there is a canon of journalistic ethics forbidding the disclosure of a newspaper’s source of information, — a canon worthy of respect and undoubtedly well-founded, it is subject to a qualification: It must yield when in conflict with the interests of justice, — the private interests involved must yield to the interests of the public.”

The opinion quotes Wigmore, as follows:

“For 300 years it has now been recognized as a fundamental maxim that the public (in the words sanctioned by Lord Hardwicke) has a right to every man’s evidence. We may start, in examining the various claims of exemption, with the primary assumption that there is a general duty to give what testimony one is capable of giving, and that any exemptions which may exist are distinctly exceptional and are so many derogations from a positive general rule.” 4 Wigmore, Evidence, § 2192, p. 2965.

“In general, the mere fact that a communication was made in express confidence, or in the implied confidence of a confidential relation, does not create a privilege. This rule is not questioned to-day. No pledge of privacy, nor oath of secrecy, can avail against demand for the truth in a court of justice. . . . Accordingly, a confidential communication to a clerk, to a trustee, to a commercial agency, to a banker, to a journalist, or to any other person not holding one of the specified relations hereafter considered, is not privileged from disclosure.” Id., § 2286, p. 3186.

Other cases indicating the uniformity of holding in this country that in the absence of statute there is no evidentiary privilege in favor of a newsman are: Clein v. State, Fla. 1950, 52 So. 2d 117, 120; People v. Sheriff of New York County, 269 N.Y. 291, 199 N.E. 415; Pledger v. State, 77 Ga. 242, 3 S.E. 320, 322; Plunkett v. Hamilton, 136 Ga. 72, 70 S.E. 781, 785; Joslyn v. People, 67 Colo. 297, 184 Pac. 375, 377; People v. Durrant, 116 Cal. 179, 48 Pac. 75, 86; State v. Donovan, 129 N.J.L. 478, 30 A. 2d 421, 425; Brewster v. Boston Herald-Traveler Corp., D.C. Mass., 24 Fed. Rules Serv. 459, 480. We have been cited no case holding to the contrary.

Appellant makes the point that, “There is no judicial precedent in this jurisdiction or elsewhere requiring newsmen in private litigation to divulge their sources of information relating to the administration of the government.”

While it is true that most of the cases on the question of a newsman’s privilege directly involved public interest in the subject matter of litigation which was prosecuted by a public official, the distinction appellant urges is not compatible with the generality of the language used in the decisions in laying down the broad rule that a newsman does not have an evidentiary privilege. No authority is cited by appellant in support of his unique proposal to engraft this exception on the general rule. We see no reason for or logic in limiting a private litigant’s right to testimony merely because his cause arises out of or involves official action.

In this jurisdiction no statutory privilege against disclosure is extended to newsmen. Consistently with the foregoing general rule, therefore, no such privilege should be judicially recognized. However, it is stated that this is a vitally important case to the new State of Hawaii and as the issue presented is a matter of first impression, we are urged to pioneer in the field and take advantage of the “opportunity to establish unequivocally that the right of a free press guaranteed by the constitution of our state shall be given as broad a scope as is necessary to insure a truly free press.” Also, it is said: “To accomplish this objective confidential sources of information must be held to be immune from compulsory disclosure and appellant’s silence a constitutionally protected right.” Although urged primarily from a constitutional standpoint, alternately, it is argued that the same result is necessary from a modernistic public policy standpoint. What, in effect, is actually asked of us is to create an evidentiary privilege in favor of newsmen. We are not favorably disposed to the invitation and our reasons for declining it are well put in People v. Sheriff of New York County, supra, at pp. 415 - 416, as follows:

“There is no statute in this state covering the subject. It is urged by appellant that the basis for the privilege granted in the cases where it is conceded to be properly granted exists in the case of a importer. Attention is called to the fact that in addition to the statutory privileges existing between attorney and client, husband and wife, physician and patient, and certain others (Civil Practice Act, §§ 353, 349, 351, 352), there also exist certain common-law cases where the privilege is granted, like communications made to a judge, to a district attorney, and to police officers in the performance of their duties, and it is urged that the principle underlying the granting of those privileges exists in the case of a reporter. Appellant admits that no court has ever so decided, but urges that the development of the law and changes in social relations require that courts now extend the privilege to a reporter.”

* * *

“The policy of the law is to require the disclosure of all information by witnesses in order that justice may prevail. The granting of a privilege from such disclosure constitutes an exception to that general rule. In the administration of justice, the existence of the privilege from disclosure as it now exists often, in particular cases, works a hardship. The tendency is not to extend the classes to whom the privilege from disclosure is granted, but to restrict that privilege.

“On reason and authority, it seems clear that this court should not now depart from the general rule in force in many of the states and in England and create a privilege in favor of an additional class. If that is to he done, it should be done by the Legislature which has thus far refused to enact such legislation.”

That there is neither a constitutional nor an evidentiary privilege justifying the deponent’s refusal to disclose does not, however, determine the issue. The answers sought by the plaintiff, which the deponent refused to give, could not in themselves be relevant to the subject matter involved in the action. They were not sought for that purpose, but for the purpose of obtaining information “of persons having knowledge of relevant facts.” As such, the plaintiff’s right to pursue the inquiry and to obtain deponent’s testimony on the source of his information is controlled by the last sentence of Rule 26(b), reading: “It is not ground for objection that the testimony will be inadmissible at the trial if the testimony sought appears reasonably calculated to lead to the discovery of admissible evidence.”

The extent to which discovery is permitted under Rule 26 (as well as under Rules 33 and 34) is subject to considerable latitude and discretion. Lewis v. United Air Lines Transport Corporation, D.C. Conn., 27 F. Supp. 946; Engl v. Aetna Life Ins. Co., 2 Cir., 139 F. 2d 469; 4 Moore’s Federal Practice § 26.17, pp. 1070-1071. When the court is called on to rule whether or not to allow discovery in any particular case, consideration should be given to all factors, including the effect the inquiry might have on the person to be interrogated. Where information is sought from a newsman, one of the factors that ought to be taken into account is the recognized newsman’s code proscribing disclosure of the source of news given him in confidence. In our opinion the situation presented here may be considered somewhat comparable to that in Hickman v. Taylor, 329 U.S. 495, where the Court held that notwithstanding the absence of an evidentiary privilege, information obtained by an attorney from witnesses, in preparing a case for a client, was not necessarily subject to discovery. The Court stated in that case, at pp. 507-508:

“We agree, of course, that the deposition-discovery rules are to be accorded a broad and liberal treatment. “ * * But discovery, like all matters of procedure, has ultimate and necessary boundaries. As indicated by Rules 30(b) and (d) and 31(d), limitations inevitably arise when it can be shown that the examination is being conducted in bad faith or in such a manner as to annoy, embarrass or oppress the person subject to the inquiry. And as Rule 26(b) provides, further limitations come into existence when the inquiry touches upon the irrelevant or encroaches upon the recognized domains of privilege.”⁴

We are accordingly required to determine whether the inquiry plaintiff desired to make was of enough importance to her case and appeared sufficiently likely to be. productive to warrant disregarding or overriding deponent’s obligation to the tradition of his calling.⁵ And in this connection we do not think it is necessary to go to the extent of finding that the information sought from deponent “goes to the heart of plaintiff’s case” as appellant, in attempting to distinguish Garland v. Torre, supra, stresses that the court in that case found in respect to the inquiry of the reporter there made.

From the nature and theory of the claim for relief set out in the complaint, as to the merits of which we voice no opinion, the key fact required to be proved in order to substantiate the alleged claim is the purported prior secret connivance of the chairman of the commission and the two members who voted with him to oust plaintiff. In the issue as joined, these three defendants deny any prior collaboration. In their amended answer (filed August 4, 1958) it is in effect averred that the matter of plaintiff’s dismissal was first brought to light when the chairman read a statement making that recommendation, at the meeting of December 16, 1957. Obviously, then, it might be highly important to plaintiff’s alleged cause of action for her to be able directly to disprove that the matter of her dismissal was of as spontaneous origin as these three defendants aver. Also, it should not be unreasonable to presume that whoever was able to tell the deponent that “an attempt to fire her [plaintiff] was being considered,” when considered in light of the fact that the dismissal actually occurred, summarily, some ten days later, quite likely had information traceable to one of the commissioners voting for ouster that her dismissal was pending.⁶

In his deposition, deponent testified that he attempted to follow up his lead, without results, and it is argued on his behalf that, therefore, what the plaintiff is asking for is a “fishing expedition” based on mere rumor. We think not. Although deponent did testify he had heard rumors of friction between the plaintiff and some of the commissioners as far back as late 1956 — the specific information given him by his confidential source shortly before plaintiff’s dismissal is too positive to be considered in the same category.

There, of course, can be no assurance that if plaintiff is permitted to pursue her inquiry she will obtain from deponent’s answers the identity of anyone who can substantiate the basic point of her alleged case. But that is not the criterion to be applied. As stated in Miller v. Sun Chemical Corp., D.N.J., 12 F.R.D. 181, at p. 182: “The language [of Rule 26] is broad. It cannot be said that the matters inquired into were not relevant to the subject matter or that they would not dead to the discovery of admissible evidence.’ Would that judges had the means of divination to forecast the former resulting in the latter with unfailing accuracy. We can only be as accurate as a weather forecaster. Need I say more?” In the same mood, we can only say that it is our best judgment that the inquiry desired to be made by plaintiff in this case could be considered likely enough to lead to the discovery of sufficiently important admissible evidence to warrant the trial court’s permitting her to pursue it notwithstanding deponent’s claim of ethical privilege. The lower court’s ruling should therefore be approved unless any of the incidental contentions of appellant, considered hereunder, require a different result.

One of the incidental contentions of appellant is that it was an abuse of discretion, and error, for the trial judge to order the deponent to answer under circumstances indicating that “there is no showing that the desired information could not have been secured from other sources.” Consideration of this point will necessitate adverting to other features appearing of record at the time of the court’s ruling.

Plaintiff had taken the deposition of the chairman and the two members of the commission who had voted with him. Each of the two members disclaimed any prior knowledge of the action taken on December 16, 1957, and consequently denied having discussed the matter either among themselves or with any other person. The chairman of the commission denied discussing the matter with any of the members of the commission. He did state, however, that a few days before December 16, 1957, he began to prepare a statement recommending the ouster of Mrs. Gallas and that he had the assistance of his wife in typing the statement. He also stated that some three or four days before the meeting he informed the Mayor of the City and County of Honolulu of his intention to recommend her dismissal. While it appears possible, from the chairman’s deposition, that the mayor and Mrs. Sanchez, or either of them, might have possessed the same information given to deponent in confidence, we think that plaintiff’s efforts in taking the deposition of the chairman and the two members of the commission hostile to her constituted sufficient attempt on her part to obtain the desired information, particularly when it is considered that the deponent stated he had acquired the information that the dismissal of Mrs. Gallas was being considered some ten days before the ouster, while Mr. Sanchez’s disclosure of his intention to the mayor and Mrs. Sanchez occurred only three or four days prior to the actual dismissal. Further, it does not appear from the record that in resisting the motion to compel, any particular objection was made that plaintiff had not ex-lxausted her efforts to secure the information desired from other sources. The point appears to be raised as an afterthought and we do not consider it of sufficient moment to warrant reversal. However, if deponent insists upon plaintiff’s first pursuing her inquiry to learn whether or not Mrs. Sanchez and the mayor, or either of them, possessed knowledge that an attempt to dismiss her was being considered, our action on this appeal is not to be taken as a bar to presenting the matter on remand for the trial court’s consideration and further ruling in light of whatever might be developed from any such inquiry.⁷

Appellant urges also that the trial court committed error in refusing to exercise judicial discretion and in holding it had no discretion but to compel deponent’s testimony. In presenting argument on this point, it is stated in the opening brief:

“At the hearing on plaintiff’s Motion to Compel Answer to Oral Interrogatory, counsel for deponent offered to introduce in evidence the testimony of two newspaper men in order to establish a Tactual situation’ (Tr. pp. 1,2). Although the transcript is incomplete because of the apparent belief of the court reporter that most of counsel’s assertions consisted of oral argument which the reporter was not required to record, the statements appearing in the transcript can only mean that counsel for deponent was attempting to establish an evidentiary basis for the exercise of judgment and discretion by the trial judge in the balancing of the conflicting interests involved in the case. This offer was summarily denied by the court on the ground that the sole question before the court was whether or not the deponent was protected by an evidentiary ‘privilege’ and that, the determination of this question was a matter of law which required no evidence. The court said:

“ ‘ . . . where it is a basic question you have to determine, whether that is a rule of evidence or a rule of weighing the facts in a particular case because if it is a rule of evidence, it doesn’t make any difference. . . . (Tr. p. 1)

“ ‘It seems to me this falls directly in the category of privilege — if there is one all right, if there isn’t, it doesn’t make any difference.’ (Tr. p. 2).”

The transcript consists of excerpts noted by the reporter of occurrences at the hearing on May 22, 1959, not of the hearing on May 11, 1959, at which earlier hearing the court ruled on and disposed of the motion to compel. The hearing on May 22 was obviously extended but the transcript offered us consists of only one and a half pages. In addition to the excerpts quoted in appellant’s brief the transcript covers the request of deponent’s counsel to be permitted to call two bystanding newspapermen as witnesses upon the representation of counsel, as follows:

“I don’t know anything about what their testimony would be. I would like the privilege in support of the objection raised to ask some questions on the Avitness stand and offer them as part of our testimony.”

* * *

“Will Your Honor give me permission — I don’t know —I haven’t the vaguest idea, but I assume these are experienced newspapermen. Would you permit me to put on just two witnesses, take a very short time, and at least Ave’ll get some factual situation.”

The effort made on May 22 to reopen and reconsider the court’s ruling of May 11 comes Avithin the purview of Rule 59, and by its nature, under Rule 7(b), should liave been made in. writing stating “with particularity the grounds therefor.” The oral motion in this case was of no legal significance. Marn v. Reynolds, 44 Haw. 655, 659, 361 P. 2d 383. Further, no offer of proof was made by counsel. From counsel’s representation to the court none could have been made. But aside from these deficiencies, it is obvious, as was practically conceded by counsel on oral argument in this court, that the “factual situation” intended or hoped to be established by the two newsmen in the courtroom pertained only to the existence of the newspaperman’s code and the effect on a reporter from a court’s refusal to permit him to abide by it. As stated by one of appellant’s counsel on argument in this court: “Well I think what we wanted to establish, fundamentally, was that any rule of law which renders a pledge of confidence given by a journalist to an informant — a complete nullity, reduces the ability of the journalist to obtain information, and I think that was one of the points we wished to establish.” In rendering this opinion we have taken cognizance of the newspaperman’s code and the desirability, from a public policy standpoint, of giving it recognition if reasonably possible. We are fairly certain that the lower court was similarly minded, so that even if the matter had been properly presented to the lower court, and adequately reserved for review by this court, it is clear that the denial of the deponent’s oral request to be permitted to put the two newspapermen on the stand has not prejudiced him.

■ The final point for consideration is the claim that the court committed error in refusing to exercise discretion in making the ruling appealed from. This contention is predicated on the above-quoted isolated excerpts of the court’s remarks on May 22, 1959, as set out in the truncated transcript, and the assertion in brief and on argument, that one of deponent’s counsel in the court below urged, that the court was required to exercise discretion in the application of. the inquisitorial portion of Rule 26, but the court refused to listen to the'argument. As that counsel stated on oral argument: “The court refused to listen to it, in effect saying: ‘I rule that it is not privileged and therefore I will exercise no discretion in the matter.’ He said that. I am sorry I didn’t get it in the transcript. He said over and over: ‘It is either privileged or it is not privileged.’ ”

It should be apparent that the attempt made by counsel to augment the record in the manner stated is improper. We are unwilling to sanction it. To do so would be a departure from the traditional order and set a precedent that would lead to nothing but confusion and disorder. It is clearly the obligation of counsel in any case to see to it that his objections to or grounds for action are made a part of the record. In this case, if there had been a proper compliance with the requirements of Rule 7(b) the matter would have been set. to rest by the contents of a written motion. Also, the excerpts of the trial judge’s comments on May 22, respecting the basis of his ruling on May 11, are too equivocal to support counsel’s contentions. Finally, on the certified record it definitely appears that notwithstanding the remarks made by the court on the subsequent hearing of May 22, in making its ruling on May 11 the court did recognize the newspaperman’s code of confidence, but denied the application of it in this case because it was the court’s judgment that consideration of other factors in the case warranted and required such action. This clearly appears from the entry in the clerk’s minutes that, on May 11, at the conclusion of the hearing on the motion to compel, “The Court stated it was very impressed by the argument of counsel for Plaintiff and is concerned with the value of confidential sources of information to the newspaper people. However, in Plaintiff’s case under all the circumstances, it would appear that it is very likely to lead to something of extreme value to their case and that is one of the basic functions of discovery, to seek leads. For that reason, this outweighs the other considerations. The Motion to Compel is granted.” Upon a complete review of the record in the. light of the principles discussed above, we can find no merit in the contention that the trial court abused its discretion in granting the motion.

J..Russell Cades and Harold S. Wright (Smith, Wild, Beebe l& Cades, of counsel) for deponent-appellant. Jamies H. Kamo and Hiroshi Sakai for plaintiff-appellee. Harriet Bouslog (Bouslog iff- Symonds, of counsel) filed a brief for HaAvaii NeAvspaper Guild, .Local 117, American NeAvspaper Guild, AFL-CIO, amicus curiae, but did not argue.

In accordance Avith the foregoing, the order compelling the deponent to disclose his source of confidential information is affirmed and the cause is remanded for further proceedings consistent with this opinion.

1 The complaint discloses that Mrs. Burke resigned from the commission shortly after plaintiff’s dismissal. Mrs. Burke’s successor on the commission, AVilliam W. Paty, Jr., is named as one of the defendants.

2 The order appealed from was rendered prior to the admission on August 21, 1959, of Hawaii as a State, so that, notwithstanding the comparability of the provisions on the freedom of the press of our state constitution with those of the First Amendment to the Federal Constitution, the issue here is actually determinable only under the First Amendment. Territory v. Yoshimura, 35 Haw. 321, 330; Territory v. Lantis, 38 Haw. 178, 179; Territory v. Delos Santos, 42 Haw. 102, 110.

3 In Garland v. Torre, infra, the issue was squarely raised, but certiorari was denied. See Torre v. Garland, 358 U.S. 910. By stipulation we have been furnished a eopy of the record in an unreported Colorado case, In re Vi Murphy, in which a reporter was held in contempt for refusing to disclose her confidential source of news. The constitutional issue was also directly raised in that case. Again, certiorari was denied. See Murphy v. Colorado, 365 U.S. 843.

4 The Hickman case was decided before Buie 26(b) was amended to include tbe last sentence of the present version of it, quoted above, but the limitations stated respecting inquiries touching upon what might be termed near-privileged matters should, we think, still pertain.

5 We respectfully differ from the view of the concurring justice that we should not take cognizance of this point in the absence of defendants. While it is true that the record does not show service on defendants of the notice of appeal, it is apparent from the record that they were fully aware of the pendency of this appeal. They have made no attempt to intervene. They appeared through counsel in the court below on the hearing of May 11, 1959, but took no active part in it. Their apparent indifference in the matter is further indicated by the statement of their counsel at the conclusion of the taking of appellant’s deposition that,

“As far as I’m concerned, we’ll respect the privilege — claim the privilege —and let it go at that.” Plaintiff makes no point of the absence of defendants as formal parties here. Deponent, of course, is not in a position to do so. All circumstances considered, it is our view that the appellant’s failure to join defendants as parties-appellee and the lack of any formal appearance by them should not bar us from considering and determining any of the issues raised on this appeal. Our holding in this respect is without prejudice to any defense of the defendants in law or fact.

6 Deponent did not testify that his informant told him “that there might be an attempt to fire Mrs. Gallas,” as is argued on his behalf. Deponent did testify that, from a number of factors, that was his belief, but the confidential information given to him was specifically, “that an ¿attempt to fire her was being considered.”

7 In this connection it is. of course, to be noted that any effort to interrogate Mrs. Sanchez will be subject to application of the provisions of B.L.H. 1955, § 222-19, if invoked.