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Newspaper not liable for harm to outed confidential source

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  1. Protecting Sources and Materials

    News Media Update         SIXTH CIRCUIT         Confidentiality/Privilege         Jan. 31, 2005    

Newspaper not liable for harm to outed confidential source

  • The Cincinnati Enquirer cannot be held liable for a former reporter’s identifying a confidential source to a grand jury investigating illegal access to Chiquita Brands company voicemail.

Jan. 31, 2005 — The Cincinnati Enquirer is not liable for failing to prevent a former reporter from identifying a confidential source to a grand jury investigating the criminal activities of the source and reporter, the U.S. Court of Appeals in Cincinnati (6th Cir.) ruled Friday.

George C. Ventura, former senior legal counsel to Chiquita Brands International in Equador, sued the Enquirer for breach of contract, negligent hiring and supervision, and related actions after former Enquirer reporter Michael Gallagher confirmed Ventura’s identity as a confidential source to a grand jury investigating the theft of voice-mail messages from the banana company.

After leaving his position at Chiquita and threatening the company with a discrimination lawsuit, Ventura learned in September 1997 that Gallagher and another Enquirer reporter were investigating corrupt business practices by Chiquita in Central America. Ventura contacted Gallagher and provided him information about Chiquita and access codes to the company’s telephone voice-mail system which Gallagher used to listen to messages.

They agreed that Ventura could be identified as a source in articles about the company, but that he would remain a confidential source in respect to the telephone codes. Ventura notified Chiquita that he was providing information to Gallagher in an apparent attempt to convince the company he was not a confidential source..

In May 1998, when the Enquirer published the first of a series of articles about Chiquita, including excerpts from the company’s voice-mail messages, Chiquita notified law enforcement officials in Ohio and provided them with Ventura’s name, launching a grand jury investigation.

When the Enquirer learned Gallagher had stolen the voice-mail messages, it fired him, publicly apologized and paid Chiquita more than $10 million in a settlement. The grand jury subsequently subpoenaed Gallagher and the Enquirer to testify as to the identity of the source of the access codes. The Enquirer asserted a privilege not to testify under the Ohio Shield Law, but Gallagher identified Ventura as part of a plea agreement. Ventura pleaded no contest and was convicted on charges of attempted unauthorized access to a computer system. He then sued the Enquirer.

The trial court dismissed the suit, Ventura appealed, and on January 28 the Court of Appeals affirmed.

In a unanimous unsigned opinion, the three-judge panel held that the Enquirer could not be held responsible for the disclosures of a former employee, noting that the newspaper had itself refused to disclose Ventura’s identity. The panel also held that Ventura and Gallagher’s confidentiality agreement could not be enforced because disclosure to the grand jury was protected under Ohio law.

Ventura had also sought to compel the Enquirer to testify in the case, arguing that because his identity had been revealed, he was no longer a confidential source and the newspaper could not claim a privilege under the Ohio Shield Law, but the court reject that argument as well.

“Ventura’s argument is predicated on the false assumption that he was the only confidential source for the Chiquita story,” the court ruled. “If the court had forced the journalist deponents to confirm or deny plaintiff’s claim, they would inevitably have revealed information about the existence, or absence, of other unidentified confidential sources. Forcing a newspaper to disclose information about a self-proclaimed source like Ventura would result in the impermissible likelihood that other confidential sources would be identified.”

(Ventura v. Cincinnati Enquirer; Media Counsel: John C. Greiner, Graydon, Head & Ritchey, Cincinnati)GP

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