Summary
The D.C. Circuit affirms a district court's civil contempt order against journalist Catherine Herridge for refusing to identify her confidential source in a Privacy Act lawsuit filed by Yanping Chen against the FBI. Applying D.C. Circuit precedent, the panel holds that Chen met the centrality and exhaustion requirements to overcome the qualified First Amendment reporter's privilege. The court rejects arguments that the underlying claim is frivolous or that a broader public-interest balancing test should apply, and declines to recognize a new federal common law privilege.
Topics
Practice areas
Questions Presented
- Whether the district court properly compelled a nonparty journalist to disclose confidential-source information after finding that the information was central to Chen's Privacy Act claim and that Chen had exhausted reasonable alternative sources.
- Whether Chen's Privacy Act claim was so frivolous or meritless that the reporter's privilege should prevail despite centrality and exhaustion.
- Whether the D.C. Circuit should recognize a broader reporter's or newsgathering privilege under federal common law.
- Whether Herridge could immediately appeal the civil-contempt order and obtain review of the underlying discovery order.
Holdings
- A nonparty journalist's qualified First Amendment reporter's privilege may be overcome in civil discovery when the requested information is central or crucial to the litigation and the party seeking it has exhausted reasonable alternative sources of information.
- A claim's frivolousness may be considered as part of determining whether the requested information is central to the case, but Chen's Privacy Act claim was not frivolous merely because some damages or information might have other causes or sources.
- The court declined to recognize a federal common-law reporter's or newsgathering privilege broad enough to require case-by-case public-interest balancing beyond the governing First Amendment framework.
- A nonparty may immediately appeal an adjudication of civil contempt before final judgment in the underlying litigation, and review of that contempt order logically includes review of the discovery order underlying it.
Key quotations
“We identified two considerations “of central importance” in determining whether the privilege applies—the litigant’s “need for the information” and her efforts “to obtain the information from alternative sources.”” (at 7)
“Either way, Lee held that a district court permissibly found a reporter’s privilege overcome based on findings of centrality and exhaustion in a Privacy Act case, without any broader balancing of private and public interests.” (at 10)
“For these reasons, we decline to recognize a federal common law newsgathering privilege.” (at 12)
Factual background
The FBI investigated Yanping Chen beginning in 2010, searched her home and business, and seized personal and business materials. Fox News later published reports containing FBI-related records, photographs, and information about Chen, with Catherine Herridge authoring the print versions. Chen conducted extensive discovery but could not identify the source of the leaked materials, so she subpoenaed Herridge; Herridge refused to identify her source or explain when and how she received the materials.
Procedural history
Chen filed a Privacy Act damages and injunction action against the FBI and other federal agencies in the District Court for the District of Columbia. During discovery, the district court denied Herridge's motion to quash subpoenas, ruled that Chen had overcome the qualified First Amendment reporter's privilege, and held Herridge in civil contempt after she refused to answer deposition questions. The D.C. Circuit affirmed.