Naming source not waiver of privilege

From the Winter 2000 issue of The News Media & The Law, page 16.

A Las Vegas Review-Journal reporter did not waive the privilege provided under the Nevada shield law when he identified and quoted a source in published articles, and consequently cannot be forced to testify in a wrongful death case about the contents of statements made by that source, the state Supreme Court ruled in late January.

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Aseries of articles that appeared in the Las Vegas Review-Journal described a 1996 automobile accident that occurred on Interstate 95 in Las Vegas and left five people dead. The article, written by reporter Glenn Puit, quoted a Nevada Highway Patrol (NHP) public information officer regarding the intoxication of deceased driver Michael Estrada and his encounter with the NHP several hours before the accident.

Various relatives of the crash victims brought wrongful death claims against the state, the NHP and a towing company. Survivors of the accident victims assert that the NHP should have taken Estrada into custody, rather than taking him home in the early morning hours the day of the fatal accident. When the public information officer quoted by Puit testified at the wrongful death trial that he did not recall making the statements attributed to him in the newspaper, the relatives sought to depose Puit.

At his deposition, Puit asserted the shield law privilege and refused to answer questions. A discovery commissioner and a trial judge subsequently refused to compel Puit's testimony, citing the protection afforded by the shield law and the First Amendment.

On direct appeal to the Nevada Supreme Court, the court held in April that by identifying the officer as the source of certain statements in published articles, Puit waived any privilege provided by the shield law to protect the identity of his named source or to protect the contents of statements made by that named source.

The majority of a three-justice panel found that the shield law -- a law that by its express language protects both published and unpublished materials along with confidential materials that are obtained during newsgathering -- reasonably can be interpreted as not protecting "non-confidential published information" because in the statute the word "published" refers not to information in general, but to the source of information only.

The state's highest court consequently ordered Puit to answer questions at a deposition regarding whether statements Puit attributed to the NHP public information officer were, in fact, made by the officer and whether those published statements accurately reflected the officer's words. The state Supreme Court, however, denied at that time requests for additional discovery and stated that tape recordings and notes from Puit's interview of the officer were protected from disclosure. Puit asked the high court to reconsider its ruling.

Puit pointed out that the shield law protects both published and unpublished information from forced disclosure. He maintained that forcing his testimony would render the shield law's provisions meaningless.

The survivors who brought the wrongful death lawsuit argued to the state's highest court that when Puit identified and quoted the officer in his article, he waived the shield law's protections. They asserted that no confidential information was at issue and that they needed Puit's testimony to contradict the testimony given by law enforcement personnel.

Upon reconsidering the arguments, the full Nevada Supreme Court unanimously held that the "reporter's privilege does not arise strictly as a result of confidence or a special relationship. This privilege arises when a journalist gathers information within his or her professional capacity for the purpose of dissemination."

"The news shield statute protects all information, not just confidential information, which is obtained by a reporter in his or her capacity as a journalist and which is intended for dissemination," it noted. Thus, if Nevada's general waiver statute is applied to the news shield statute, "such a result vitiates the plain language of the news shield statute, which protects published information from compelled disclosure," the court concluded.

The court held that the general Nevada waiver statute does not apply to the privilege created by the news shield statute, but instead, "the waiver statute is limited to those privileges that center on confidential communications."

The Supreme Court's ruling allows Puit to avoid forced disclosure of published and unpublished information. In refusing to force his testimony, the court noted that in cases like the wrongful death case at the core of this matter, "where the story has been widely disseminated," it is not a function of the news media "to produce evidence beneficial to a litigant." The shield law, the court stated, protects the news media "from such abuses." (Diaz v. Eighth Judicial District Court)