Penland v. Long

922 F. Supp. 1080, 24 Media L. Rep. (BNA) 1410, 1995 U.S. Dist. LEXIS 20981, 1995 WL 847601
CourtDistrict Court, W.D. North Carolina
DecidedDecember 19, 1995
DocketNos. 1:94CV119, 1:94CV137
StatusPublished

This text of 922 F. Supp. 1080 (Penland v. Long) is published on Counsel Stack Legal Research, covering District Court, W.D. North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Penland v. Long, 922 F. Supp. 1080, 24 Media L. Rep. (BNA) 1410, 1995 U.S. Dist. LEXIS 20981, 1995 WL 847601 (W.D.N.C. 1995).

Opinion

MEMORANDUM AND ORDER

THORNBURG, District Judge.

THESE MATTERS are before the Court on the Plaintiffs’ timely filed objections to the Memorandum and Recommendation of Chief United States Magistrate Judge J. Toliver Davis, filed September 12,1995. Pursuant to 28 U.S.C. § 636 and standing orders of des[1082]*1082ignation, this Court referred the motion of Respondent Sherrill Barber and River City Broadcasting, d/b/a WLOS-TV Station, to quash Plaintiff Penland’s subpoena, and the motion of Respondent Glenn O’Neal and Multimedia Newspapers of North Carolina, Inc., d/b/a The Asheville Citizen-Times, to quash Plaintiff Penland’s subpoena, to the Magistrate Judge for a recommendation as to disposition. For the reasons stated below, the recommended relief will be affirmed.

I.STANDARD OF REVIEW

This Court reviews de novo those portions of the Memorandum and Recommendation to which objections have been filed. 28 U.S.C. § 636(b). The Plaintiffs have objected to the recommendation that Respondents O’Neal and Barber need not comply with Penland’s subpoenas due to the application of a qualified journalists’ privilege.

II.PROCEDURAL AND FACTUAL BACKGROUND

Both Plaintiffs Penland and Jackson have asserted claims against Long stemming from their dismissal by Long on August 5, 1993, after the alleged sexual abuse of an inmate in the Buncombe County Jail. Long issued a press release on the same date, the contents of which were published by the local media, including the Asheville Citizen-Times and WLOS-TV1. The Plaintiffs both asserted claims against Long for the deprivation of their federal and state constitutional due process interests, and for defamation under North Carolina law.

After the press release, Respondent O’Neal interviewed both Plaintiffs and Long. The several news articles written by O’Neal were published by the Citizerir-Times from August 6, 1993, through October 15, 1994. On August 5, 1993, Respondent Barber investigated and prepared a news story regarding the firing of the Plaintiffs, which was broadcast by WLOS-TV on that same date. According to Barber’s affidavit, the initial source of his information regarding the events in the story was a confidential source.

On April 26, 1995, Penland subpoenaed both O’Neal and Barber, seeking the following information:

1. All notes, memoranda, drafts, and reports of all interviews with former Sheriff Charles H. Long and any interviews with any other person, including Teresa Pen-land and Ronnie Jackson, concerning the termination of the employment of Ms. Pen-land and Mr. Jackson by Sheriff Long or concerning any accusations against Ms. Penland or Mr. Jackson by [the allegéd assault victim].
2. All correspondence, facsimile transmit-tals, messages, and other documents evidencing any communications between Sheriff Charles H. Long or members of his office and any employees of [the Respondents’ respective employers] concerning the subjects mentioned in the foregoing paragraph.

Respondent O’Neal moved to quash his subpoena on May 22,1995, and Respondent Barber moved to quash his subpoena on May 31, 1995. As the basis for their respective motions, both Respondents asserted the journalists’ qualified privilege under the First Amendment of the United States Constitution.

III.DISCUSSION

In the present ease, Plaintiff Penland seeks information concerning the statements of Sheriff Charles H. Long to the respective journalists regarding the firing of the Plaintiffs, as well as the statements of the Plaintiffs to the journalists. Clearly, the identities of these sources are nonconfidential, and the record indicates that their respective statements were nonconfidential as well. There[1083]*1083fore, Penland’s subpoenas clearly encompass nonconfidential information from nonconfi-dential sources. Due to the broad wording of the subpoenas, they could likely encompass confidential information from confidential sources as well.

As the parties’ briefs indicate, the Fourth Circuit has not established a clear test for analyzing the protection afforded by the journalists’ qualified privilege.

The first Fourth Circuit decision discussing the recognition of a journalists’ qualified privilege under Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972), is United States v. Steelhammer, 539 F.2d 373 (4th Cir.1976), rev’d en banc, 561 F.2d 539 (4th Cir.1977). In Steelhammer, the Fourth Circuit expressed hostility to the idea that journalists called as witnesses in civil cases might have a privilege to refuse to testify about all events they have observed in their professional capacity if other witnesses were available, and therefore suggested that a claim of confidentiality or evidence of vindictiveness was necessary for a journalist to invoke a testimonial privilege. Steelhammer, 539 F.2d at 376 (Winter, J., dissenting), adopted by the court en banc, 561 F.2d at 540. A contemporary decision noted that “[o]nly if material requested directly leads to the disclosure of confidences does the [journalists’] privilege attach.” Gilbert v. Allied Chemical Corp., 411 F.Supp. 505, 511 (E.D.Va.1976).

In a later decision, this qualified privilege was apparently extended to encompass not only confidential sources, but also nonconfi-dential information supplied by confidential sources. Miller v. Mecklenburg County, 602 F.Supp. 675, 679 (W.D.N.C.1985), aff'd, 813 F.2d 402 (4th Cir.1986), cert. denied, 479 U.S. 1100, 107 S.Ct. 1325, 94 L.Ed.2d 177 (1987).

In LaRouehe v. Nat’l Broadcasting Co., Inc., 780 F.2d 1134 (4th Cir.1986), cert. denied, 479 U.S. 818, 107 S.Ct. 79, 93 L.Ed.2d 34 (1986), the Fourth Circuit adopted the balancing test articulated in Miller v. Transamerican Press, Inc., 621 F.2d 721, modified, 628 F.2d 932 (5th Cir.1980), cert. denied, 450 U.S. 1041, 101 S.Ct. 1759, 68 L.Ed.2d 238 (1981), for determining whether the journalists’ privilege will protect a confidential source in a given situation. LaRouehe, 780 F.2d at 1139. Under this test, a court must consider: (1) whether the information is relevant, (2) whether the information can be obtained by alternative means, and (3) whether there is a compelling interest in the information. Id.

Nonetheless, in Stickels v. General Rental Co., Inc., 750 F.Supp. 729 (E.D.Va.1990) (cited in In re Shain,

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
922 F. Supp. 1080, 24 Media L. Rep. (BNA) 1410, 1995 U.S. Dist. LEXIS 20981, 1995 WL 847601, Counsel Stack Legal Research, https://law.counselstack.com/opinion/penland-v-long-ncwd-1995.