I. Defamation actions

Courts applying federal law within the Ninth Circuit are more likely to compel disclosure in a defamation action when the plaintiff must prove "actual malice." The court relies on the theory that because "actual malice" is a heavy burden of proof, disclosure is necessary. The Branzburg balancing test, which requires that the claimed First Amendment privilege and the opposing need for disclosure be judicially weighed in light of the surrounding facts and a balance struck to determine where lies the paramount interest, is still used in the analysis. In DeRoburt v. Gannett Co., a district court considered three factors in determining if the balance tipped in favor of administration of justice or in favor of freedom of the press: (1) whether the information sought was a "critical element" of plaintiff's cause of action or whether it went to the heart of plaintiff's case; (2) whether the plaintiff demonstrated specific need for the evidence; and (3) whether the plaintiff has made a showing that his claim is not without merit. 507 F. Supp. at 886 (D. Haw. 1981) In Shoen II, the Ninth Circuit held that to overcome a valid assertion of the reporter's privilege by a nonparty, a civil litigant seeking information that is not confidential must show that the material is: (1) unavailable despite exhaustion of all reasonable alternative sources; (2) noncumulative; and (3) clearly relevant to an important issue in the case. 48 F.3d at 418 (reversing district court's order holding investigative book author in contempt for refusing to turn over tapes and notes of conversations with a man accused by his sons of defamation because plaintiffs had not exhausted other resources, the material sought was cumulative and the material sought was not relevant). Many federal cases within the Ninth Circuit, however, ultimately must apply state privilege law. In Newton v. National Broadcasting Company, for example, a district court held that if federal law had applied, the plaintiff's motion to compel disclosure of the confidential sources would have been granted because plaintiff had a compelling need for the information in light of his heavy burden of proof as a public figure and because plaintiff had exhausted alternative means of learning the identity of the confidential sources. 109 F.R.D. 522, 527-28 (D. Nev. 1985) The court, however, went on to hold that Nevada privilege law applied. Id. Under the Nevada shield law, N.R.S. § 49.275 (2001), reporters receive an absolute privilege regardless of whether it is a libel action and denied plaintiff's motion to compel disclosure of the confidential sources. Id. Similarly, in Rogers v. Home Shopping Network, Inc., a district court, applying California law, held that the five Mitchell factors (factors considered when analyzing California privilege law), did not support disclosure in the defamation action. 73 F. Supp. 2d 1140 (C.D. Cal. 1999).