Pinkard v. Johnson

118 F.R.D. 517, 14 Media L. Rep. (BNA) 2195, 1987 U.S. Dist. LEXIS 12075, 1987 WL 28909
CourtDistrict Court, M.D. Alabama
DecidedOctober 26, 1987
DocketCiv. A. No. 87-H-73-E
StatusPublished
Cited by15 cases

This text of 118 F.R.D. 517 (Pinkard v. Johnson) is published on Counsel Stack Legal Research, covering District Court, M.D. Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pinkard v. Johnson, 118 F.R.D. 517, 14 Media L. Rep. (BNA) 2195, 1987 U.S. Dist. LEXIS 12075, 1987 WL 28909 (M.D. Ala. 1987).

Opinion

MEMORANDUM OPINION AND ORDER

HOBBS, Chief Judge.

This cause is now before the Court on the motion to quash the subpoenas issued to a newspaper reporter, Charles Chandler, of the Montgomery Advertiser. Both the plaintiff and the defendants have issued a subpoena duces tecum to Mr. Chandler. However, the scope of the discovery sought by their respective subponeas is different. This motion has raised some interesting questions about the scope of the reporter privilege. The Court determines that Mr. Chandler must respond to the subpoena of the plaintiff and that he is not required to respond to the subponea of the defendants.

I.

The plaintiff, Otis Pinkard, is the only elected member of a three-person Macon County Racing Commission which is an agency of Macon County, Alabama. This Commission oversees dog racing at Macon County Greyhound Park, a/k/a Victory-land, the only private dog racing track in Macon County. The plaintiff has sued Charles Johnson, Chairman of the Commission, Victoryland, and Milton E. McGregor, President of Victoryland. Plaintiff contends that the defendants conspired to embarrass and harass him by both manufacturing charges that plaintiff sexually harassed female employees of Victoryland and airing these charges at a public meeting of the Commission. Allegedly, this conspiracy was the latest attempt by the defendants to retaliate against the plaintiff for openly challenging and exposing the policies and practices of the Commission and Victoryland. Plaintiff has brought a Section 1983 claim alleging that defendants acted under color of state law in violating his constitutionally protected right to free speech. He has also brought two pendent state claims for defamation and the tort of outrage.

At the time the plaintiff became suspicious of the alleged conspiracy, he contacted his attorney, Ms. Linda Henderson. She began investigating plaintiffs suspicions. On July 4, 1987, she contacted Ms. Betty Robinson to inquire about her knowledge of any retaliatory actions by the defendants. Ms. Robinson allegedly gave Ms. Henderson some information indicating that the defendants had planned to retaliate against plaintiff. Ms. Henderson purportedly reduced this information to affidavit form and sent it to Ms. Robinson for her signature. A week later, Ms. Robinson [519]*519reportedly informed Ms. Henderson that she would not sign the affidavit because some pressure had been exerted upon her husband which had upset her. Two weeks later, Ms. Robinson denied having the July 4 conversation with Ms. Henderson.

During her initial investigation on behalf of her client, Ms. Henderson spoke also with Ms. Carla Upshaw. Ms. Upshaw was one of the Victoryland employees who brought complaints of sexual harassment against plaintiff. Ms. Upshaw allegedly told Ms. Henderson that defendant Johnson and an employee of Victoryland had pressured her into giving a written complaint of sexual harassment against plaintiff. Since the inception of this lawsuit, Ms. Upshaw has denied making the statements to Ms. Henderson. Like Ms. Robinson, Ms. Up-shaw is employed by Victoryland.

The plaintiff has deposed Ms. Knoxie Wright. She was one of two Victoryland supervisors in charge of the three-month investigation into the complaints lodged against plaintiff, an investigation which coincidently reached fruition after plaintiff had filed a lawsuit in state court against the defendants, alleging that the defendants had wrongfully denied him access to information regarding the Racing Commission and Victoryland. Ms. Wright can remember only two of the names of the six women who she said complained that plaintiff had sexually harassed them. Plaintiff had to seek the assistance of the Court in requiring Ms. Wright to state the names of the women who she recalled as having lodged complaints of sexual harassment against plaintiff.

Defendant Johnson has denied that he understood the nature of the complaints of sexual harassment against plaintiff prior to the public meeting of the Commission at which the charges were aired. Many of the employees of Victoryland also deny any knowledge of the events at issue, thereby contradicting previous statements which they allegedly made.

Initially, Mr. Chandler allowed Ms. Henderson to tape record his statement concerning conversations he had previously with defendant Johnson. He stated that Johnson had approached him prior to a meeting of the Commission. In the course of their conversation, Johnson informed Mr. Chandler that the Montgomery Advertiser should watch for a story about plaintiff that would be disclosed at a future meeting of the Commission. Mr. Chandler has attested that the transcription is an accurate record of the interview.

The plaintiff has subpoenaed Mr. Chandler for a deposition, to which he now objects, asserting his First Amendment reporter privilege. The plaintiff is seeking to depose Mr. Chandler only on the substance of the affidavit he previously gave to Ms. Henderson. The defendants have subpoenaed Mr. Chandler for a deposition and a large amount of records of the Montgomery Advertiser. The defendants argue that the Montgomery Advertiser has been extremely prejudiced against Victoryland and the Commission. In order to prove their assertions, the defendants’ discovery requests are much broader than the discovery requests of the plaintiff. Basically, the defendants have requested that the Court give them carte blanche to discover the records, notes, and mental processes of the Montgomery Advertiser and its reporters relating to Victoryland and the Racing Commission.

II.

Before determining whether Mr. Chandler is entitled to any privilege, the Court must decide whether federal or state law controls the Court’s extension of First Amendment protection. In this case, the plaintiff has brought a federal claim based on Section 1983 and two state law claims based on pendent jurisdiction.1 The evidence sought from Mr. Chandler is relevant to both federal and state claims. In such situations, courts have held consistently that the asserted privileges are governed [520]*520by the principles of federal law. See; e.g., Wm. T. Thompson Co. v. General Nutrition Corp., 671 F.2d 100, 104 (3d Cir.1982); Memorial Hosp. for McHenry County v. Shadur, 664 F.2d 1058, 1061 n. 3 (7th Cir.1981).

This approach is consistent with the legislative history of Federal Rule of Evidence 501.2 Von Bulow by Auersperg v. Von Bulow, 811 F.2d 136, 141 (2d Cir.1987). The Senate Report which accompanied Fed. R. Evid. 501 stated that “it is also intended that the federal law of privileges should be applied with respect to pendent state law claims when they arise in a federal question case.” S.Rep. No. 1277, 93rd Congr., 2d Sess., reprinted in 1974 U.S.Code Cong. & Ad.News 7051, 7059 n. 16.

In Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972), the Supreme Court held that a newspaper reporter had received a

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Bluebook (online)
118 F.R.D. 517, 14 Media L. Rep. (BNA) 2195, 1987 U.S. Dist. LEXIS 12075, 1987 WL 28909, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pinkard-v-johnson-almd-1987.