KSDO v. Superior Court

Summary

The California Court of Appeal considers whether a radio station and reporter could be compelled in a civil libel action to produce unpublished notes and memoranda concerning a broadcast. The court distinguishes California's statutory and constitutional newsperson protections as immunity from contempt rather than an absolute privilege against disclosure, but recognizes a qualified First Amendment privilege. Because the reporter had disclosed his sources and the plaintiffs did not show that the notes were unavailable from other sources or went to the heart of the claim, the court directed the trial court to annul the discovery order.

Holdings

1. Evidence Code section 1070 and California Constitution article I, section 2 provide immunity from being adjudged in contempt for refusing to disclose sources or unpublished information; they do not create a privilege against disclosure or prohibit other sanctions or discovery orders.
2. The First Amendment provides a qualified newsperson's privilege protecting confidential sources and unpublished materials when the privilege furthers the First Amendment interest in the free flow of information, subject to factual balancing.
3. The plaintiffs were not entitled to compel production of Brown's notes because Brown had disclosed his sources, the plaintiffs could test those sources directly, and the plaintiffs failed to show that the notes were unavailable elsewhere or went to the heart of the claim.

Questions Presented

1. Whether Evidence Code section 1070 and California Constitution article I, section 2 create a privilege barring a discovery order requiring a newsperson who is a party to a civil libel action to disclose unpublished notes.
2. Whether the First Amendment provides a qualified newsperson's privilege protecting the reporter's unpublished notes under the circumstances presented.
3. Whether the plaintiffs established sufficient need for the reporter's notes when the reporter had already disclosed his sources and the information could be obtained from those sources.

Disposition

remanded