Warnell v. Ford Motor Co.

183 F.R.D. 624, 1998 U.S. Dist. LEXIS 19877, 78 Fair Empl. Prac. Cas. (BNA) 1500, 1998 WL 939279
CourtDistrict Court, N.D. Illinois
DecidedDecember 10, 1998
DocketNo. 98 C 1503
StatusPublished

This text of 183 F.R.D. 624 (Warnell v. Ford Motor Co.) is published on Counsel Stack Legal Research, covering District Court, N.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Warnell v. Ford Motor Co., 183 F.R.D. 624, 1998 U.S. Dist. LEXIS 19877, 78 Fair Empl. Prac. Cas. (BNA) 1500, 1998 WL 939279 (N.D. Ill. 1998).

Opinion

MEMORANDUM OPINION AND ORDER

BUCKLO, District Judge.

The plaintiffs, Rosalind Warnell and Suzette Wright, sued Ford Motor Company and Ford Stamping Plant on behalf of a purported class including all employees in the Ford organization who work or have worked at the Ford Assembly Plant and the Chicago Stamping Plant from 1993 through the present time. The complaint alleges race and sex discrimination claims under Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e et seq. (“Title VII”), and 42 U.S.C. § 1981, as well as state common law claims. A consolidated case, Rapier v. Ford Motor Co., 98 C 5287, also alleges Title VII and common law claims against Ford and is brought on behalf of a purported class of women employed at the Assembly and Stamping Plants since January 15,1996. The plaintiffs now seek to compel the National Broadcasting Company (“NBC”) to turn over a videotape depicting a “ ‘sex party* and/or Christmas party” held by Ford employees, portions of which were aired on a June 1,1998 broadcast of the news magazine Dateline NBC (“Dateline”). For the following reasons, the motion to compel is granted.

Background

On March 12, 1998, the plaintiffs filed this lawsuit against Ford alleging various claims including sexual harassment and sex discrimination. On June 1, 1998, NBC broadcast a report on a program called “Dateline” titled “Crossing the Line?” (the “report”). The' report examined allegations of sexual harassment and sex discrimination at Ford plants in Chicago. Featured in the report were excerpts from a home videotape depicting a party attended by Ford employees, prostitutes, and strippers. “Dateline” reported that the videotape was ten years old and that it depicted a holiday party which took place off-site.

According to the producer of the report, Mark Feldstein, the home videotape was obtained after months of extensive investigation. Mr. Feldstein submitted an affidavit stating that the source of the videotape provided the tape to NBC after obtaining Mr. Feldstein’s agreement “(1) to protect the confidentiality of the identity of the source, and (2) to broadcast only those portions of the videotape that did not reveal in any fashion the identity of the source.” (Feld-stein Aff. f[ 6.) On June 9,1998, the plaintiffs served a subpoena on NBC seeking the original or a duplicate copy of the videotape. NBC refused to produce it, citing statutory and constitutional journalists’ privileges. The plaintiffs now seek to compel production of the tape.

Motion to Compel

Information obtained by a journalist in the course of gathering news may be protected from disclosure by a qualified, reporters’ privilege. Shoen v. Shoen, 5p F.3d 1289, 1292 & n. 5 (9th Cir.1993) (collecting cases), Neal v. City of Harvey, 173 F.R.D. 231, 233 (N.D.Ill.1997), United States v. Bingham, 765 F.Supp. 954, 956 (N.D.Ill.1991), Gulliver’s Periodicals, Ltd. v. Chas. Levy Circulating Co., 455 F.Supp. 1197, 1201-02 (N.D.Ill.1978). When a party seeks disclosure of information that is protected by the privilege, the court should consider whether the information is available from other sources and whether it is highly relevant to the case at bar. Neal, 173 F.R.D. at 233.

The plaintiffs first argue that the videotape is a piece of physical evidence not covered by any privilege. When deciding if a person may invoke the reporters’ privilege, the critical question is whether the person obtained the material while “gathering news for dissemination to the public.” Shoen, 5 F.3d at 1293. NBC submitted an affidavit stating that Mr. Feldstein obtained the videotape as a result of an extensive investigation for the purpose of the “Dateline” broadcast.

The plaintiffs argue that nonetheless the tape is not privileged because they are not asking for the identity of the source, and because production of the tape would not reveal the identity of the source. Federal [626]*626courts are split as to whether the reporters’ privilege applies when confidentiality is not at issue. One approach is to apply the privilege to a journalist’s resource materials even in the absence of a confidentiality issue, but to consider nonconfidentiality as a factor diminishing the journalist’s interest in nondisclosure. Shoen, 5 F.3d at 1295. Another approach is simply to apply regular discovery rules. Gonzales v. National Broadcasting Co., 155 F.3d 618, 626 (2d Cir.1998) (holding that there is no reporters’ privilege for non-confidential information).1 NBC argues that it obtained the videotape from a confidential source that would be revealed if the tape were produced. Thus NBC claims that it is entitled to protection under the reporters’ privilege and under an Illinois statute that protects a reporter from disclosing the reporter’s source of information.2

In support of this claim, NBC provided the court with an affidavit by Mr. Feldstein. Mr. Feldstein states in his affidavit that if the tape is made available to plaintiffs,

The source’s identity would be revealed, both by the audio accompanying the videotape, as well as by a viewer determining which person present at the “sex party” presumably videotaped the party because he or she did not appear in any of the footage. (Feldstein Aff. 118.)

Having viewed the videotape, I conclude that this statement cannot be supported.

First, the tape indicates that many people (perhaps 100, or, as NBC conceded in court, “dozens”) were present at the party. Thus, unless every Ford employee is alleged to have been at the party, there is no reason to believe that since a particular employee — the cameraman — is not shown, his identity would be revealed. Second, this was not a case of surreptitious taping. The tape shows people acting out for the camera, asking if the cameraman got a shot of this or that, being told to get out of the way so the cameraman could get a better shot, and asking for a copy of the tape. Anyone at the party knew who was making the film. Finally, there is no evidence that it was the cameraman who supplied the tape to NBC. As just noted, people can be heard on the tape asking for copies, and it seems at least as likely as not that the tape was in fact copied.

In a letter provided to the court following my statement in a hearing on this matter that I thought the affidavit was intentionally misleading, NBC says that its source is concerned that production of the tape could lead to identification of the cameraman (presumably, whether or not he is the source) and his friends. The only way the cameraman might be identified would be by his voice. A voice that may be the cameraman’s can be heard occasionally on the tape. (I estimate that the voice can be heard for a minute or less of the entire one hour and 42 minute tape). Unless there is in fact more reason than appears at this point to conclude that the cameraman supplied the tape (and his identity, as already stated, was no secret to the many people at the party), there is no basis for protecting his identity. But if there is some basis for protecting the voice of the cameraman, his voice — or the part of the tape where he may be speaking — can be redacted.

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Related

Gulliver's Periodicals, Ltd. v. Chas. Levy Circulating Co.
455 F. Supp. 1197 (N.D. Illinois, 1978)
United States v. Bingham
765 F. Supp. 954 (N.D. Illinois, 1991)
Neal v. City of Harvey
173 F.R.D. 231 (N.D. Illinois, 1997)

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Bluebook (online)
183 F.R.D. 624, 1998 U.S. Dist. LEXIS 19877, 78 Fair Empl. Prac. Cas. (BNA) 1500, 1998 WL 939279, Counsel Stack Legal Research, https://law.counselstack.com/opinion/warnell-v-ford-motor-co-ilnd-1998.