No. 46314-4-I

IN THE COURT OF APPEALS
OF THE STATE OF WASHINGTON
DIVISION I

DOUG UNDERWOOD

Appellant,

v.

ALFREDO AZULA, DAVID CANNELLA, SALVATORE CAPUTO, STEVE CHEESEBOROUGH, ED FOSTER, RANDY KULL, SUSAN LEONARD, PAMELA MANSON, PATRICIA MYERS, MIKE PADGETT, NORM PARISH, KIM SUE LIA PERKES, LAURA CROOKS, MARGERY ROSE-CLAPP, RAY SCHULTZE, JOYCE VALDEZ, GUY WEBSTER, DAVID WICHNER, STEVE KNICKMEYER, and PHOENIX NEWSPAPERS, INC.,

Respondents.

BRIEF OF AMICUS CURIAE THE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS IN SUPPORT OF BRIEF OF THE APPELLANTS

COUNSEL FOR AMICUS CURIAE:

Katrina Kelly, WSBA #28435
Perkins Coie, LLP
1201 Third Ave., Suite 4800
Seattle, WA 98101-3099
(206) 264-6328

Lucy A. Dalglish, Esq.
Gregg P. Leslie, Esq.
Gregory H. Kahn, Esq.
The Reporters Committee for Freedom of the Press
1815 N. Fort Myer Dr., Su. 900
Arlington, VA 22209
(703) 807-2100

TABLE OF CONTENTS

TABLE OF AUTHORITIES

STATEMENT OF IDENTITY AND INTEREST OF AMICUS

STATEMENT OF THE CASE

ARGUMENT

CONCLUSION

TABLE OF AUTHORITIES

Branzburg v. Hayes, 408 U.S. 665 (1972)

Bruno & Stillman, Inc. v. Globe Newspaper Corp., 633 F.2d 583 (1st Cir. 1980)

CBS Inc. v. Campbell, 645 S.W.2d 30 (Mo. CT. App. 1982)

Cervantes v. Time, Inc., 464 F.2d 986 (8th Cir. 1972), cert. denied, 409 U.S. 1125, 35 L. Ed. 2d 257, 93 S. Ct. 939 (1973)

Connecticut State Board of Labor Relations v. Fagin, 370 A.2d 1095 (Conn. Super. Ct. 1976)

Delaware v. Hall, 16 Media L. Rep. (BNA) 1414 (Del. Mun. Ct. 1989)

Farr v. Pitchess, 522 F.2d 464 (9th Cir. 1975)

Herbert v. Lando, 441 U.S. 153, 99 S. Ct. 1635, 60 L. Ed. 2d 115 (1979)

Hopewell v. Midcontinent Broadcasting Inc., 538 N.W.2d 780 (S.D. 1995)

In re Grand Jury Subpoenas, 8 Media L. Rep. (BNA) 1418 (Colo. 1982)

In re Letellier, 578 A.2d 722 (Me. 1990)

In re Ridenhour, 520 So. 2d 372 (La. 1988)

In re Stearns, 12 Media L. Rep. (BNA) 1837 (Ind. Ct. App. 1986)

Landmark Comm. Inc. v. Virginia, 435 U.S. 829, 844, 98 S.Ct. 1535, 56 L.Ed. 2d 1 (1978)

LaRouche v. National Broadcasting Co., 780 F.2d 1134 (4th Cir.), cert. denied, 479 U.S. 818, 93 L. Ed. 2d 34, 107 S. Ct. 79 (1986)

Marcus v. Search Warrant, 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed. 2d 1127 (1961)

Matera v. Superior Court, 825 P.2d 971 (Ariz. Ct. App. 1992)

Matter of Contempt of Wright, 700 P.2d 40 (Idaho 1985)

Miller v. Transamerican Press, 621 F.2d 721 (5th Cir. 1980), cert. denied, 450 U.S. 1041, 68 L. Ed. 2d 238, 101 S. Ct. 1759 (1981)

Mitchell v. Superior Ct., 690 P.2d 625 (Cal. 1984)

Nebel v. Mapco Petroleum, Inc., 10 Media L. Rep. (BNA) 1871 (Alaska 1984)

New Hampshire v. Siel, 444 A.2d 499 (N.H. 1982)

New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed. 2d 686 (1964)

Norandal, U.S.A., Inc. v. Local Union No. 7468, 13 Media L. Rep. (BNA) 2167 (Ala. Cir. Ct. 1986)

O'Neill v. Oakgrove Construction, Inc., 523 N.E.2d 277 (N.Y. 1988)

Senear v. Daily Journal-American, 97 Wn.2d 148, 641 P.2d 1180 (1982)

Shoen v. Shoen, 48 F.3d 412 (9th Cir. 1995) (Shoen II)

Shoen v. Shoen, 5 F.3d 1289 (9th Cir. 1993) (Shoen I)

Silkwood v. Kerr-McGee Corp., 563 F.2d 433 (10th Cir. 1977)

Sinnot v. Boston Retirement Board, 524 N.E.2d 100 (Mass.), cert. denied, 488 U.S. 980 (1988)

Snedigar v. Hoddersen, 114 Wn.2d 153, 786 P.2d 781 (Wash. 1990)

State v. Rinaldo, 102 Wn.2d 749, 689 P.2d 392 (1984)

State v. Sandstrom, 581 P.2d 812 (Kan. 1978), cert. denied, 440 U.S. 929 (1979)

Tribune Co. v. Huffstetler, 489 So. 2d 722 (Fla. 1986)

United States v. Burke, 700 F.2d 70 (2d Cir.), cert. denied, 464 U.S. 816, 78 L. Ed. 2d 85, 104 S. Ct. 72 (1983)

United States v. Cuthbertson, 630 F.2d 139 (3d Cir. 1980), cert. denied, 449 U.S. 1126, 67 L. Ed. 2d 113, 101 S. Ct. 945 (1981)

Winegard v. Oxberger, 258 N.W.2d 847 (Ia. 1977), cert. denied, 436 U.S. 905 (1979)

Zerilli v. Smith, 211 U.S. App. D.C. 116, 656 F.2d 705 (D.C. Cir. 1981)

STATUTES

28 C.F.R. 50.10 (1998)

ARTICLES

The Reporters Committee for Freedom of the Press, Agents of Discovery (1999)

STATEMENT OF IDENTITY AND INTEREST OF AMICUS

The Reporters Committee for Freedom of the Press is a voluntary, unincorporated association of reporters and editors that works to defend the First Amendment rights and freedom of information interests of the news media. Since its founding in 1970, the Reporters Committee has provided representation, information, legal guidance, and research in press freedoms cases, including cases involving the reporter's privilege.

The Reporters Committee adopts the arguments contained in the May 19, 2000 Brief of Appellant Doug Underwood. It writes separately to emphasize the public policy reasons supporting a recognition of a First Amendment privilege in nonconfidential material and the necessity of carefully analyzing the competing interests before ruling that the privilege must be pierced.

STATEMENT OF THE CASE

Amicus adopts the statement of facts that appear in the brief of Appellant Doug Underwood.

This appeal involves the ability of reporters in Washington to rely upon a reporter's privilege to protect nonconfidential material. The subpoena served on University of Washington Professor Doug Underwood for his notes over a disputed interview involves an issue critical to the media specifically and the public in general: whether journalists can carry out their constitutionally protected newsgathering and reporting activities without turning into investigative arms of prosecutors, police, criminal defendants, and, here, civil litigants.

The trial court recognized the existence of a journalist's right to protect his or her nonconfidential material and applied the analytical framework articulated by the Ninth Circuit Court of Appeals in two related cases. See Shoen v. Shoen, 5 F.3d 1289, 1295 (9th Cir. 1993) (Shoen I) (holding that the reporter's privilege protects nonconfidential sources and materials); Shoen v. Shoen, 48 F.3d 412, 416 (9th Cir. 1995) (Shoen II) (establishing a test to determine when a court can pierce the reporter's privilege). Shoen II's three-part test recognized that "compelled disclosure (of nonconfidential material) is the exception, not the rule." Shoen II, 48. F.3d at 416. A civil litigant can overcome a reporter's privilege not to disclose nonconfidential material only by proof that the requested evidence is "(1) unavailable despite exhaustion of all reasonable alternate sources; (2) noncumulative; and (3) clearly relevant to an important issue in the case." Id. The court applied the Shoen II test and ruled that Underwood must produce notes for the plaintiffs.

Order on Plaintiffs Motion to Compel, No. 99-2-17347-3SEA (Wa. Super. Ct. King County Apr. 6, 2000).

ARGUMENT

I. Strong public policy rationales dictate that the Court should recognize a First Amendment privilege that protects members of the press against compelled disclosure of nonconfidential material.

In 1979, the U.S. Supreme Court noted that although "pretrial discovery is normally to be accorded a broad and liberal treatment, and that judicial creation of evidentiary privileges is generally to be discouraged," courts nevertheless must recognize "evidentiary privileges in order to protect interests and relationships which . . . are regarded as of sufficient social importance to justify some incidental sacrifice of sources of facts needed in the administration of justice." Herbert v. Lando, 441 U.S. 153, 183, 99 S. Ct. 1635, 60 L. Ed. 2d 115 (1979) (citations and internal quotation marks omitted) (ellipses in original).

One of the strongest interests that the judiciary has recognized is the journalist's First Amendment right to gather and disseminate the news. This recognition has taken many forms, including a wide-scale recognition in the federal circuit and state appellate courts that journalists have a First Amendment privilege to resist compelled disclosure of their newsgathering activities. [1]

Newsgathering is essential to preserving a free press and the free flow of information. This proposition was recognized by the Nixon Administration's Justice Department in 1973, and has been followed by all U.S. Attorneys General since. 28 C.F.R. 50.10 (1998) (Attorney General's "Policy with regard to the issuance of subpoenas to or filing of criminal charges against members of the news media").

Noting that "freedom of the press can be no broader than the freedom of reporters to investigate and report the news," the Attorney General requires that federal authorities wishing to subpoena journalists demonstrate that any information sought -- not just confidential source information -- is "essential to the successful completion of the litigation in a case of substantial importance," 50.10(f)(2), cannot be obtained from "alternative nonmedia sources," 50.10(f)(3), and should be "limited to the verification of published information," 50.10(f)(4). In addition, the authorities must first try to negotiate with the media for any information before issuing a subpoena. 50.10(c).

The Washington legislature has not enacted a reporter's shield law, and the rules of civil procedure clearly allow a party to serve a subpoena duces tecum on a nonparty. But that does not answer the question of whether the law as applied to journalists violates the First Amendment to the U.S. Constitution, and whether judicial intervention is necessary to preserve those constitutional rights.

No rule or statute exists outside the parameters of the Constitution. See Marcus v. Search Warrant, 367 U.S. 717, 731, 81 S.Ct. 1708, 6 L.Ed. 2d 1127 (1961) (holding that no state is "free to adopt whatever procedures it pleases . . . without regard to the possible consequences for constitutionally protected speech"). Rulemaking bodies or legislatures cannot trump the right of the judiciary to ensure that constitutional protections remain effective:

Landmark Comm. Inc. v. Virginia, 435 U.S. 829, 844, 98 S.Ct. 1535, 56 L.Ed. 2d 1 (1978).

The necessity of this judicial role can be seen in Shoen I. In that case, the Ninth Circuit Court of Appeals started "with the premise that pre-trial discovery is ordinarily 'accorded a broad and liberal treatment'" but quickly explained that judicial review of the discovery rules had already led to exceptions to the scope of the discovery rules. "[W]hen facts acquired by a journalist in the course of gathering the news become the target of discovery, a qualified privilege against compelled disclosure comes into play." Shoen I, 5 F.3d at 1292 (internal cites omitted).

The Washington Supreme Court has looked to both its own precedent and the Ninth Circuit Court of Appeals to recognize the existence of a qualified reporter's privilege in civil and criminal cases. In one case, the Supreme Court upheld a lower's holding that

Snedigar v. Hoddersen, 114 Wn.2d 153, 159-60, 786 P.2d 781 (Wash. 1990) (citations omitted).

Furthermore, the Washington Supreme Court has noted that non-party journalists such as Doug Underwood who receive a subpoena in a civil proceeding present the most compelling case for not violating the reporter's First Amendment privilege:

State v. Rinaldo, 102 Wn.2d 749, 754, 689 P.2d 392 (1984) (citations omitted); see also Senear v. Daily Journal-American, 97 Wn.2d 148, 641 P.2d 1180 (1982).

This Court's review of the Washington discovery rules as used in this case will have an effect far beyond this individual attempt to force a Washington reporter to turn over his notes. Not recognizing the reporter's privilege for non-confidential materials would stifle newsgathering in newsrooms in Washington for three reasons: (1) readers and journalists would begin to think of journalists as investigators for the government and private litigants; (2) the media will be burdened by an overwhelming number of requests for assistance by litigators in civil and criminal cases; and (3) journalists will curtail their research if they are required to serve as evidence collectors in additional to their traditional role as people who gather and disseminate news.

The media play a critical role in our democracy. An independent press provides information the public needs to make important decisions about the functioning of public and private institutions. If journalists are required to routinely hand over documents, notes, photographs, and video to prosecutors and other litigants, sources may begin to view the media as an investigative arm of the government and decline to participate in newsgathering.

Broadcasters and publishers produce scores of news stories each day. By their very nature, the events that are of interest to the public and therefore newsworthy – actions of government officials, crime, fires, accidents, and natural disasters – often result in civil and criminal litigation.

In 1999, the Reporters Committee published Agents of Discovery, which was subtitled "A Report on the Incidence of Subpoenas Served on the News Media in 1997." The Reporters Committee for Freedom of the Press, Agents of Discovery (1999) (see Appx. A). In conducting the survey, the Reporters Committee mailed more than 2,000 surveys to print and broadcast outlets in every state and the District of Columbia. Id. at 4. Nearly thirty percent of the outlets responded to the survey, and the results illustrate the effect that an unfettered right of obtaining information from journalists has on the ability of the media to gather and disseminate the news. Id. at 5.

At least one subpoena was reported in 44 states and in the District of Columbia and the average number of subpoenas received among all respondents was 4.6. Id. And forty-three percent of the subpoenas concerned civil litigation like the underlying Arizona case here. Id. at 6.

The subpoenas issued against journalists vary in scope and originate from a variety of sources. Id. at 6-9. A subpoena may request anything from a copy of a published article or broadcast story to the disclosure of a confidential source. Id. at 7-9.

Receipt of any subpoena requires a news outlet to allocate staff time to responding to it. Each attempt to obtain an order to quash or to appeal a judge's denial of a motion to quash compels the news outlet to incur additional expense of time, attorney's fees, and court costs. Id. at 9-10. An Oklahoma news outlet noted in its response to the survey that its decision to refuse to abide by a subpoena "is an expensive and time-consuming position," a New Jersey newspaper noted that quashing a subpoena usually cost it between $1,500 and $4,500, and a New York television station stated that responding to subpoenas required a vast outlay of time, noting that "[i]t has literally taken days to comply with some of them." Id. at 8, 12, 16.

The report stated that responding news organizations often took remedial actions, such as instituting editorial policies to destroy notes and unaired videotape, removing subpoenaed reporters from trial coverage, notifying confidential sources that their confidences would not be kept upon receipt of a subpoena, or not using confidential sources at all. Id. at 4-18.

Taking these actions for legal, rather than editorial, reasons undermines their First Amendment right to gather and disseminate the news. Even those news organizations that sidestepped the subpoena threat by routinely destroying unpublished notes or unbroadcast videotape and by refusing to use confidential sources did not defeat the subpoena threat — they merely traded editorial freedom for a safe harbor from compelled disclosure.

The news outlets responding to the survey noted that the problems with subpoenas appears to be growing. "The number [of subpoenas] grows each year as our county grows and our coverage grows more aggressive," reported a managing editor of a Florida newspaper. "For the first time in the 11 years I've been here, we turned over notes to an attorney." Id. at 7.

In the context of a libel case, the U.S. Supreme Court has noted that the law can have a deterrent effect on truthful speech by imposing "doubt [about] whether it can be proved in court or fear of the expense of having to do so," forcing critics "to make only statements which 'steer far wider of the unlawful zone.'" New York Times Co. v. Sullivan, 376 U.S. 254, 279 84 S.Ct. 710, 11 L.Ed. 2d 686 (1964) (internal cites omitted).

The same principle applies if reporters are forced to accept that all of their notes, outtakes, and research can and will be used against the subjects of their stories. To avoid such entanglements and threats against their professional independence, reporters will have to use such a high level of self-restraint that their freedom to report on matters of public concern will be greatly diminished.

It is worth noting in the context of this self-censorship discussion that the subpoena before this court arose out of a story on newspapers that are shying away from controversial stories. This points up the fact that general concepts like the "chilling effect" and "self-censorship" are not simply abstract concepts, but immediate concerns that even now affect how journalists do their jobs. If this court finds no privilege exists for a journalist's work product, fewer journalists will take on meaningful but controversial stories knowing that they could lead to a costly legal battle and the compromise of journalistic integrity.

II. Courts must strictly apply all elements of the three-part Shoen test in order to determine the instances in which the constitutional privilege has been overcome.

In Shoen I, the Ninth Circuit noted that "[t]he process of deciding whether the privilege is overcome 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.'" Shoen I, 5 F.3d at 1292-93 (quoting Farr v. Pitchess, 522 F.2d 464, 468 (9th Cir. 1975)); see also Branzburg v. Hayes, 408 U.S. 665, 710 (1972) (Powell, J., concurring) (balance must be struck between freedom of the press and obligation to give relevant testimony).

In describing this balancing test, the Shoen II court cautioned trial courts against liberally allowing private litigants to pierce the reporter's privilege for nonconfidential materials:

Shoen II, 48 F.3d at 416 (emphasis added).

Each element of the reporter's privilege balancing test must be applied carefully, or the standard has no meaning. The requirements of this test are substantial, as they must be to ensure that constitutional rights are not trampled upon. Alternative sources must not merely be explored, but "exhausted." Evidence that is duplicative may be allowed in any other case since it is not harmful, whereas in a case involving First Amendment rights the price of such duplicative evidence is much too high. A too-brief analysis will allow for fishing expeditions for potentially relevant information, which will defeat the purpose of the protection.

In this case, as discussed persuasively in the Brief of Appellants Phoenix Newspapers, Inc. and Steve Knickmeyer, strict application of the Shoen II test does not support the trial court's order that underwood turn over his notes to the respondents.

Allowing a subpoena for notes in the hopes that those notes will bolster or refute testimony is the perfect example of "potential relevance" that does not meet the constitutional burden.

This prong of the test is not a random standard at all, but a necessary requirement that keeps journalists from being the subject of "fishing expeditions" for useful information.

CONCLUSION

As can be seen by the somewhat limited case law concerning the reporter's privilege in Washington, journalists in this state do not currently work under a daily threat of being dragged into court to disclose their work product and divulge their reporting techniques and practices.

Yet an adverse outcome in this case will change that. A standard allowing for unrestrained subpoenas on a journalist's work product will affect the vitality of the press within the state's borders. The impact of the challenge to the enforceability of the subpoena duces tecum for Steve Underwood's notes is real and immediate. Reasonable journalists will fear that the use of similar subpoenas will allow litigants and the state to use journalists as private investigators, thereby affecting the manner in which journalists carry out their duties that are protected by the First Amendment. Therefore, amicus curiae urges this Court to explicitly recognize that the reporter's privilege must cover a reporter's nonconfidential material, and that compelled disclosure can only be allowed when the party attempting to pierce that reporter's privilege demonstrates that the specific, known information sought is highly relevant to the case, not merely duplicative or cumulative, and all reasonable alternate sources of the information have been exhausted. The respondents, engaged in a "fishing expedition" for material to support their claim, have clearly not met that test here.

Dated: June 26, 2000

COUNSEL FOR AMICUS CURIAE:

Katrina Kelly, WSBA #28435
Perkins Coie, LLP
1201 Third Ave., Suite 4800
Seattle, WA 98101-3099

Lucy A. Dalglish, Esq.
Gregg P. Leslie, Esq.
Gregory H. Kahn, Esq.
The Reporters Committee for Freedom of the Press
1815 N. Fort Myer Drive, Suite 900
Arlington, VA 22209
(703) 807-2100

FOOTNOTE:

[1] See, e.g., Bruno & Stillman, Inc. v. Globe Newspaper Corp., 633 F.2d 583, 595-96 (1st Cir. 1980); United States v. Burke, 700 F.2d 70, 77 (2d Cir.), cert. denied, 464 U.S. 816, 78 L. Ed. 2d 85, 104 S. Ct. 72 (1983); United States v. Cuthbertson, 630 F.2d 139, 147 (3d Cir. 1980), cert. denied, 449 U.S. 1126, 67 L. Ed. 2d 113, 101 S. Ct. 945 (1981); LaRouche v. National Broadcasting Co., 780 F.2d 1134, 1139 (4th Cir.), cert. denied, 479 U.S. 818, 93 L. Ed. 2d 34, 107 S. Ct. 79 (1986); Miller v. Transamerican Press, 621 F.2d 721, 725 (5th Cir. 1980), cert. denied, 450 U.S. 1041, 68 L. Ed. 2d 238, 101 S. Ct. 1759 (1981); Cervantes v. Time, Inc., 464 F.2d 986, 992-93 & n.9 (8th Cir. 1972), cert. denied, 409 U.S. 1125, 35 L. Ed. 2d 257, 93 S. Ct. 939 (1973); Silkwood v. Kerr-McGee Corp., 563 F.2d 433, 436-37 (10th Cir. 1977); Zerilli v. Smith, 211 U.S. App. D.C. 116, 656 F.2d 705, 714 (D.C. Cir. 1981); Norandal, U.S.A., Inc. v. Local Union No. 7468, 13 Media L. Rep. (BNA) 2167, 2168 (Ala. Cir. Ct. 1986); Nebel v. Mapco Petroleum, Inc., 10 Media L. Rep. (BNA) 1871, 1872 (Alaska 1984); Matera v. Superior Court, 825 P.2d 971, 973 (Ariz. Ct. App. 1992); Mitchell v. Superior Ct., 690 P.2d 625, 632 (Cal. 1984); In re Grand Jury Subpoenas, 8 Media L. Rep. (BNA) 1418, 1419 (Colo. 1982); Connecticut State Board of Labor Relations v. Fagin, 370 A.2d 1095, 1096 (Conn. Super. Ct. 1976); Delaware v. Hall, 16 Media L. Rep. (BNA) 1414, 1414-15 (Del. Mun. Ct. 1989); Tribune Co. v. Huffstetler, 489 So. 2d 722, 723 (Fla. 1986); Hopewell v. Midcontinent Broadcasting Inc., 538 N.W.2d 780 (S.D. 1995); Matter of Contempt of Wright, 700 P.2d 40, 44-45 (Idaho 1985); In re Stearns, 12 Media L. Rep. (BNA) 1837, 1841 (Ind. Ct. App. 1986); Winegard v. Oxberger, 258 N.W.2d 847, 850 (Ia. 1977), cert. denied, 436 U.S. 905 (1979); State v. Sandstrom, 581 P.2d 812, 814-15 (Kan. 1978), cert. denied, 440 U.S. 929 (1979); In re Ridenhour, 520 So. 2d 372, 376 (La. 1988); In re Letellier, 578 A.2d 722, 726 (Me. 1990); Sinnot v. Boston Retirement Board, 524 N.E.2d 100, 104 (Mass.), cert. denied, 488 U.S. 980 (1988); CBS Inc. v. Campbell, 645 S.W.2d 30, 32-33 (Mo. CT. App. 1982); New Hampshire v. Siel, 444 A.2d 499, 502-03 (N.H. 1982); O'Neill v. Oakgrove Construction, Inc., 523 N.E.2d 277, 277-78 (N.Y. 1988); North Carolina v. Rogers, 9 Medfia L. Rep. (BNA) 1254, 1255 (N.C. Super. Ct. 1983); Taylor v. Miskovsky, 640 P.2d 959, 961-62 (Okla. 1981); State v. St. Peter, 315 A.2d 254, 256 (Vt. 1974); Brown v. Commonwealth, 204 S.E.2d 429, 431 (Va.), cert. denied, 419 U.S. 966 (1974); Hudok v. Henry, 389 S.E.2d 188, 192-93 (W.Va. 1989); Zalenka v. Wisconsin, 266 N.W.2d 279, 287 (Wis. 1978).