Lee B. McTurnan
ATTORNEY FOR APPELLANT
Michael A. Wilkins
ATTORNEY FOR APPELLEE
Mark A. Earnest
Steven M. Badger
Matthew W. Foster
KRISTA M. CLINE
Lee B. McTurnan
ATTORNEY FOR APPELLANT
Michael A. Wilkins
ATTORNEY FOR APPELLEE
Mark A. Earnest
WTHR-TV and McGRAW-HILL )
BROADCASTING COMPANY, INC. )
d/b/a WRTV-6, )
STATE OF INDIANA, ) Supreme Court
) Cause No. 49S00-9709-CR-484
) Court of Appeals
v. ) Cause No. 49A04-9708-CR-356
KRISTA M. CLINE, )
On July 30, a hearing attended by counsel for all parties was held to discuss the discovery request. WTHR and WRTV (collectively "the stations") resisted production of
any outtakes "without judicial review," and asserted a constitutional "reporter's privilege"
that precluded compulsory disclosure. Although Earnest had not seen the broadcast portion
of the interview and did not know the contents of any outtakes, he maintained that his Sixth
Amendment duty to provide Cline effective assistance of counsel required him to "investigate
her case," even if any video footage was not used at trial. Earnest also asserted that the
material might be relevant to a civil action against the news organizations for alleged
interference with the attorney-client privilege. Despite the broad nature of the discovery
request on its face, Earnest denied at the hearing that he wanted "confidential sources of
information" and stated: "I'm just asking for what my client said."
The State was also represented at the hearing and took no position on Cline's discovery request. The stations maintain that Earnest stated at some point that he did not want the requested materials unless the State had copies of them. They also assert that the State has neither requested nor received copies of any video footage related to the case. However, the record discloses no statement to this effect from Earnest himself, and Cline's reiteration of the discovery request at the hearing was not conditioned on the State's obtaining the information. Cline asserts in her brief that the tapes are desired "[p]roactively, rather than having to wait reactively to see if the State will use them against her in their [sic] prosecution."
The trial court concluded the hearing by ordering the stations to produce "any unaired footage pertaining to [this] cause" for in camera inspection, and indicating that the material would be turned over to Cline if it was determined to be relevant or likely to lead to the
discovery of admissible evidence. The court ruled that any constitutional privilege that might
exist did not apply under these "limited circumstances." In separate motions to stay the order
for in camera production, both stations contended that the order violated the First
Amendment to the United States Constitution and Article I, Section 9 of the Indiana
Constitution to the extent it required production of unaired video footage. However, the
stations offered to make available to Cline copies of any previously broadcast footage in their
possession. The trial court issued a stay to allow the stations to appeal. We granted transfer
on September 5, 1997.See footnote
concurring) (urging that claim of reporter's privilege be resolved under Federal Rules of
Civil Procedure rather than on federal constitutional grounds). Accordingly, before any
claim of constitutional privilege is addressed, the threshold issue is whether the Trial Rules
permit the enforcement of Cline's subpoena.See footnote
A. Relevant principles under the Trial Rules
"Our discovery rules are designed to allow liberal discovery with a minimum of court involvement in the discovery process." Richey v. Chappell, 594 N.E.2d 443, 445 (Ind. 1992) (citation and internal quotation marks omitted). Trial Rule 34 enables parties to a lawsuit to request information or material directly from both parties and non-parties. The scope of discovery is governed by Rule 26(B):
Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject-matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or the claim or defense of any other party . . . . It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.
Ind. Trial Rule 26(B)(1). The material sought must be described with sufficient particularity: "The request shall set forth the items to be inspected either by individual item or by category, and describe each item and category with reasonable particularity." T.R. 34(B). Rule 26(C) requires that any party or third party from whom discovery is requested may be protected from "annoyance, embarrassment, oppression, or undue burden or expense" and permits a variety of conditions to be imposed. The sum of these provisions is that, as a general proposition, discovery should go forward, but, if challenged, a balance must be struck between the need for the information and the burden of supplying it. Terre Haute Reg'l Hosp. v. Trueblood, 600 N.E.2d 1358 (Ind. 1992) (discovery dispute requires court to balance competing interests). The Indiana Trial Rules do not contain the provisions adopted in the Federal Rules of Civil Procedure in 1991 designed to lessen the burden on third parties who are the targets of discovery requests. See, e.g., Fed. R. Civ. P. 45(C). Nonetheless, where non-parties to a dispute are involuntarily dragged into court their interest in being left alone is a legitimate consideration in this balancing and they are no less entitled to any protections the Trial Rules afford. Watters v. Dinn, 633 N.E.2d 280, 288-89 (Ind. Ct. App. 1994) ("This court will not tolerate, nor should our trial courts tolerate, violations of the Trial Rules which deprive nonparties of the opportunity to invoke the protection which the rules provide . . . .").
Specifically, in the context of a defendant's discovery request in a criminal case, the following test has been applied to determine whether the information is discoverable: (1) there must be a sufficient designation of the items sought to be discovered (particularity); (2)
the items requested must be material to the defense (relevance); and (3) if the particularity
and materiality requirements are met, the trial court must grant the request unless there is a
showing of "paramount interest" in non-disclosure. See, e.g., Kindred v. State, 540 N.E.2d
1161, 1174 (Ind. 1989).See footnote
Trial court rulings within this framework are reviewed for an abuse
of discretion. Id.
Although phrased in terms of particularity, materiality, and paramount interest, our decisions in fact reflect a broader range of considerations that bear on permissible uses of discovery. An item has been designated with reasonable particularity if the request enables the subpoenaed party to identify what is sought and enables the trial court to determine whether there has been sufficient compliance with the request. Sexton v. State, 257 Ind. 556, 558, 276 N.E.2d 836, 838 (1972). In contrast, a demand for "all evidence within [the State's] exclusive possession" was properly denied because it was overly broad and non- specific. Brandon v. State, 268 Ind. 150, 158-59, 374 N.E.2d 504, 508-09 (1978) (internal quotation marks omitted). The requirement of particularity has embraced other considerations as well. Shortly after the adoption of the Trial Rules in this State, although regarding the Trial Rules as "not applicable per se in criminal cases," we nonetheless looked to Rule 34(B) in Dillard v. State, 257 Ind. 282, 291, 274 N.E.2d 387, 392 (1971) for guidance as to criminal discovery. Specifically, this Court observed that what constitutes
reasonable particularity "will depend on the facts of each individual case, the crime charged,
the nature of the items sought to be discovered, the degree of discovery of other items of
information, the nature of the defense, etc." Id. In Dillard, the defendant demanded "a copy
of any and all inter-office memo, notes, reports . . . of and concerning the robberies, the
investigation of defendant herein and any and all persons suspected, interrogated and
detained in connection therewith." Id. at 290, 274 N.E.2d at 391 (internal quotation marks
omitted). This was rejected as an impermissible "fishing expedition or an attempted
rummaging about in the police files hoping to turn up something to use at the trial." Id. at
292, 274 N.E.2d at 392-93. Although described as a "particularity" requirement, in reality
this test also smuggled in the commonsensical elements of a showing that the information
is not readily available elsewhere (the "degree of discovery of other items of information"
in Dillard) and that the party seeking it is not engaged in a fishing expedition with no focused
idea of the size, species, or edibility of the fish.
The requirement of materiality has similarly absorbed related but different concepts. An item is "material" if it appears that it might benefit the preparation of the defendant's case. Id. at 291-92, 274 N.E.2d at 392. The relevance of some information or items may be self-evident. For example, the materiality of the defendant's own pretrial statement is self- evident in most cases, particularly where the statement was a confession given to authorities. Id. at 291, 274 N.E.2d at 392; Sexton, 257 Ind. at 557-58, 276 N.E.2d at 837-38 (trial court erred in refusing to grant defendant's discovery request for copy of written statement he gave to police on the night he was arrested). In other situations, materiality may not be known or
easily demonstrated until the information or item is actually examined. Where the only
method for determining materiality is production, a specific showing of materiality is not
required. Jorgensen v. State, 574 N.E.2d 915, 917 (Ind. 1991) (referring to that situation as
Nonetheless, "[w]here the materiality of the information is not self-evident the [defendant] must indicate its potential materiality to the best of his ability . . . ." Dillard, 257 Ind. at 292, 274 N.E.2d at 392. Cf. Shortridge v. Platis, 458 N.E.2d 301, 306-07 (Ind. Ct. App. 1984) (trial court properly denied plaintiffs' motion to require defendant to produce certain documents where plaintiffs failed to establish how any documents in defendant's possession were germane to an issue in the case). Dillard was not tied to the discovery rules as such, but took its main concepts from the Trial Rules: potential materiality may properly be viewed as shorthand for the requirement that the requested item "appears reasonably calculated to lead to the discovery of admissible evidence." T.R. 26(B)(1). This "potential materiality" when the specific nature of the requested item is not known embraces also an evaluation of not only theoretical relevance, but also the availability of the information from other sources, the difficulty of compliance, and some plausible showing as to what information the respondent has and why there is a need to demand it from the respondent. The third rubric under which we have evaluated discovery demands in criminal cases is whether the party resisting has a "paramount interest" that trumps the presumption of discovery of any relevant matter. The term suggests that some fundamental and important stake is required to resist discovery. However, the depth of the interest in resisting may be
no more than inconvenience if the need for it from a given source is minimal -- for example,
because it is readily available elsewhere without need to drag third parties into court.
Whether a sufficient interest has been shown to prevent discovery "will depend upon the type
of interest put forth" and "the category of information sought." Dillard, 257 Ind. at 292, 274
N.E.2d at 392. A legitimate interest in keeping the information or items confidential, for
example, may suffice to deny discovery. Williams v. State, 275 Ind. 434, 437-38, 417
N.E.2d 328, 331 (1981) (trial court did not err in denying discovery request for police files
that detailed results of ongoing criminal investigation because State had "self-evident"
interest in keeping that information confidential). Ultimately these factors involve a
balancing test that includes evaluation of the relevance of the material, its availability from
other sources, the burden of compliance measured in terms of difficulty, and the nature and
importance of any interests invaded. This test, as will be seen, begins to look suspiciously
like the three-part test some courts find rooted in the United States Constitution when
discovery is sought from newsgatherers. Resolution of this case, however, turns only on the
application of general principles of discovery, particularly for third parties, to the peculiar
interests of a newsgathering organization.
B. Application of the Trial Rules to Cline's blanket request
Here Cline has demanded in blanket fashion all videotaped information in the stations' possession related to her case. With the sole exception of her request for the interview conducted at the jail, she has not specified what she hopes to gather from the stations. Nor has Cline offered any theory of "potential materiality" as to why anything
other than the interview might be relevant to her defense, or even why she believes the
television stations have anything responsive to the subpoena, or if they do, what it is. As
such, aside from the interview, her request amounts to the "fishing expedition" held to be
impermissible under the discovery rules in Dillard.See footnote
Although a party need not specify the
information sought where the contents of the item are unknown or unknowable, something
more precise than "give me everything related to the case" must be shown. That is
particularly true of demands on third parties. Accordingly, except for the interview, Cline's
request is beyond the bounds of permissible discovery due to lack of particularity and any
showing of materiality.See footnote
Cline suggests that in camera review is a reasonable compromise with respect to the other information she has requested. If a party could always obtain in camera inspection irrespective of any showing of relevance, the trial court's order here would be affirmed in full. In camera review to determine materiality or the validity of any objections to production is generally within the trial court's discretion. Canfield v. Sandock, 563 N.E.2d 526, 531 (Ind. 1990). As noted, materiality need not be shown prior to disclosure where the relevance of the item is self-evident or the precise nature of the information is unknown.
However, in that circumstance, the discovery rules' prohibition on fishing expeditions and
burdensome requests would effectively be lost if in camera review could be obtained without
a showing of at least possible relevance. The burden on the party ordered to comply with
the in camera order is the same as production itself. As with an illegal search or seizure, a
fishing expedition is not justified post hac merely because edible fish were found.
Accordingly, where materiality is challenged or is unknown, a showing of at least "potential
materiality" is generally required to obtain in camera review of disputed items. Because
Cline has offered no theory of potential materiality to support her blanket request, the trial
court's order for in camera inspection, except with respect to the interview, is reversed.See footnote
C. Discovery of Cline's interview
The contents of the interview are not before us, so we, like parties seeking discovery of yet unproduced items, can only surmise as to its materiality. The "potential," to use Dillard's term, is therefore the test. It is easily met here. Cline offers a number of valid reasons for wanting that information. The interview was broadcast and, for all Cline knows,
taped by the State. The State may seek to introduce Cline's statements as admissions by a
party opponent. Ind. Evidence Rule 801(d)(2)(A). Cline also suggests the statements may
prove to be admissible for offensive purposes. Though we are at a loss to conjure up such
a scenario, and Cline came up with none at oral argument when the question was posed, we
cannot dismiss it out of hand. In any event, the defense must at least prepare for the
possibility of use at trial. And irrespective of whether the State obtains a copy of the
questioning, the unique circumstances under which the interview was conducted may yield
insights into how to present Cline's defense. What Cline said, and how she said it, may
factor into whether to call Cline as a witness and other strategic considerations. Even if the
State does not now have the tape, its availability to impeach Cline is a possibility the defense
needs to consider in evaluating whether she should testify. Although Earnest can ask Cline
about the contents of the interview, Cline may not be able to recall all the details, and
certainly may not be able to give her lawyers a reliable view of the impressions she gives the
viewer. In sum, that the interview may be beneficial in preparing Cline's defense, and may
provide information not obtainable from another source, is not a close question.
The next issue is whether the stations have shown a sufficient interest to deny Cline a copy of the full interview. Newsgatherers assemble and distribute information for commercial gain, often unearthing information of great public interest at considerable expense and effort. They have a valid mercantile interest in protecting their unpublished work against involuntary disclosure, apart from any constitutional considerations. The efforts of a tenacious press should not be subject to commandeering as a substitute for
independent defense investigation. If the threat of disclosure has any significant effect on
the flow of information, that is an interest worthy of consideration even if, as discussed in
Parts II and III, it is not of constitutional dimension. Stated another way, the same
considerations the stations urge to support a free press constitutional privilege against
disclosure can be seen as interests that, depending on the facts, may suffice to deny discovery
under the Trial Rules. Where a media organization is subpoenaed, the Trial Rules require
sensitivity to any possible impediments to press freedom. A showing that the information
is unique and likely not available from another source should normally be required.
The stations, however, have not established a paramount interest in non-production of Cline's interview. Disclosure will not reveal any confidential sources because the source is already known. To the extent the means of access to Cline are revealed by the tape, that information is presumably already available to Cline. At least under these facts, there is no chilling effect on press informants that would inhibit the flow of information on issues of public concern. Nor is any interest of the source -- Cline herself -- implicated here. A videotaped interview by definition is not given under any expectation of confidentiality on the part of the interviewee. One cannot speak to a television reporter on camera in the reasonable belief that one's comments or identity will be kept secret because all or any part of the interview may be aired in the discretion of the editor. The burden of copying the interview for Cline is minimal. And because the subpoenaed party here is a non-party to the underlying controversy -- a criminal prosecution -- there is no issue of the defendant's demanding that the State "lay bare its case in advance of trial." Reid v. State, 267 Ind. 555,
562, 372 N.E.2d 1149, 1153 (1978) (internal quotation marks omitted). Rather, this case
involves the defendant's entitlement to information in the hands of a third party that may be
relevant to the search for the truth in this case. By allowing a party to make discovery
demands on non-parties, the Trial Rules were fashioned so that discovery could be had under
these circumstances. A copy of the full interview is therefore within the scope of permissible
discovery. Subject to in camera review for relevance or any other considerations that bear
on its production, it should be made available to Cline.
involves a juvenile charged with murder who was represented by counsel at the time of the
interview. Application of a privilege under these facts to thwart her discovery request, Cline
contends, would put a constitutional stamp of approval on ethically questionable conduct by
the press. Cline maintains that, if nothing else, any privilege must yield to her Sixth
Amendment right to effective assistance of counsel and a fair trial.
The stations have the burden of proving the existence of a privilege sufficient to defeat Cline's discovery request. Canfield v. Sandock, 563 N.E.2d 526, 531 (Ind. 1990). For the reasons set forth below, they have not done so.
A. United States Supreme Court precedent
This Court has never addressed whether the First Amendment accords a qualified reporter's privilege to refuse to give evidence in a criminal proceeding.See footnote 9 On matters of federal constitutional law, the Supreme Court of the United States has the last word, but the decisions of other federal or state courts do not bind this Court. Arizonans for Official English v. Arizona, 520 U.S. __, __ n.11, 117 S. Ct. 1055, 1064 n.11, 137 L. Ed. 2d 170, 188 n.11 (1997). The parties seem to agree that the starting point -- if not the end point -- of federal constitutional analysis in this area is Branzburg v. Hayes, 408 U.S. 665, 92 S. Ct. 2646, 33 L. Ed. 2d 626 (1972). Branzburg held that reporters called to testify before a grand jury do not enjoy a First Amendment "conditional" privilege to refuse disclosure of
confidential sources or information gathered in the course of reporting. That decision,
including the concurrence and two dissenting opinions, occupies eighty-eight pages in the
United States Reports. It is not necessary to revisit every nuance of Branzburg. Summarized
briefly, it suffices to say that the result and rationale cut directly against the stations' position
on the First Amendment. A majority of the Court reasoned that
these cases involve no intrusions upon speech or assembly, no prior restraint or restriction on what the press may publish, and no express or implied command that the press publish what it prefers to withhold. No exaction or tax for the privilege of publishing, and no penalty, civil or criminal, related to the content of the published material is at issue here. The use of confidential sources by the press is not forbidden or restricted; reporters remain free to seek news from any source by means within the law.
Id. at 681-82. The same is true in this case. The core First Amendment values that drove
the analysis in Branzburg are not threatened by Cline's discovery request. The stations
remain free to investigate, publish, and otherwise transmit information on any subject. To
the extent an incidental effect on the flow of information raises First Amendment concerns,
Branzburg appears to hold that this presents no basis for exempting the press from giving
relevant evidence in a criminal proceeding.
Read most favorably to the stations, Branzburg may leave the door open for a qualified reporter's privilege under some circumstances. Branzburg involved a grand jury subpoena, not a third party discovery request. However, we do not view the two as substantively distinguishable. In holding that a reporter could be compelled to reveal confidential sources or information at a grand jury, the Court observed that the press has long been subject to laws of general applicability that may incidentally burden newsgathering
activities. Id. at 682-683. A discovery demand is fairly seen in this category. Ultimately
a grand jury subpoena and a discovery subpoena are justified by the notion that the public
has the right to every person's evidence. We also reject the contention that Branzburg is
limited to cases in which the reporter personally witnessed criminal activity.See footnote
the interest in access to the information is strongest where it uniquely bears on the
commission of the crime itself, as opposed to what the defendant or anyone else said about
it, but the Court's discussion was not confined to these limited circumstances: "[T]he right
to withhold news is not equivalent to a First Amendment exemption from the ordinary duty
of all other citizens to furnish relevant information . . . ." Id. at 697. Nor does the language
of the opinion seem to turn on the fact that in Branzburg the State, not the defendant, sought
the information. To the extent that is a factor, it puts the Sixth Amendment rights of the
accused in the balance and cuts in favor of access to the information.
Besides Branzburg, the stations do not cite any relevant Supreme Court authority on this subject. Rather, they rely on decisions of lower federal courts and other state courts that have recognized a qualified reporter's privilege and applied some variant of the three-part
test outlined above.See footnote 11 Most of these cases, however, trace the purported privilege back to Branzburg and specifically to Justice Powell's concurring opinion, which provided the crucial fifth vote rejecting the privilege.See footnote 12 The decisions relying on Branzburg for a qualified reporter's privilege took a cue from Justice Powell that in our view was unwarranted. Justice Powell urged that a "proper balance" be struck between the interests of the press and the duty of all citizens to give evidence in criminal proceedings. Id. at 709-10 (Powell, J., concurring). These comments were made in the context of responding to Justice Stewart's dissent. In Justice Powell's view, Justice Stewart's concern that Branzburg would allow the government to "annex the news media as an investigative arm of the government" was
misplaced. Id. at 709 (internal quotation marks omitted). Justice Powell's rejoinder emphasized that reporters were not stripped of the defenses that would be available to any other subpoenaed party, such as bad faith or lack of relevance. Id. at 710. The point, therefore, was that a lack of constitutional privilege would not result in automatic enforcement of the subpoena, as in fact the discussion in Part I of this opinion demonstrates. Although he did not mention the Federal Rules of Civil Procedure by name, Justice Powell did note the reporter's right to a "motion to quash" and "appropriate protective order." Id. We also find it difficult to assume that Justice Powell would cast the deciding vote against the privilege and then attempt to revive it in a separate opinion. Indeed, there is no inconsistency between Justice Powell's cautioning respect for reporters' "legitimate First Amendment interests" and rejecting testimonial immunity for the press. Id. at 710. Read in pari materia with the majority opinion that Justice Powell joined, his concurrence is better seen as a caveat to lower courts that Branzburg should not be read to eviscerate all First Amendment protections for newsgatherers. Finally, the reporters in Branzburg and Justice Stewart in dissent urged recognition of virtually the same three-part test that the stations argue should be adopted here. Justice Powell opined that "the essential societal interest in the detection and prosecution of crime would be heavily subordinated" if Justice Stewart's proposed test were the law. Id. at 710 n.*. We cannot read Branzburg to find the United States Constitution to require the very test that was rejected in that case.See footnote 13
If there were any doubt on the point, subsequent Supreme Court decisions discussing Branzburg give no reason to believe the Court meant anything other than what it said: no qualified reporter's privilege exists under the First Amendment. For example, in a unanimous opinion dealing with a different privilege issue the Court stated: "In Branzburg, the Court rejected the notion that under the First Amendment a reporter could not be required to appear or to testify as to information obtained in confidence without a special showing that the reporter's testimony was necessary." University of Pennsylvania v. E.E.O.C., 493 U.S. 182, 201, 110 S. Ct. 577, 107 L. Ed. 2d 571 (1990). The following year, Cohen v. Cowles Media Co., 501 U.S. 663, 669, 111 S. Ct. 2513, 115 L. Ed. 2d 586 (1991) declared of Branzburg: "[T]he First Amendment [does not] relieve a newspaper reporter of the obligation shared by all citizens to respond to a grand jury subpoena and answer questions relevant to a criminal investigation, even though the reporter might be required to reveal a confidential source." In sum, the decisions construing Branzburg to recognize a qualified reporter's
privilege in our view have misread Supreme Court precedent.
B. First Amendment values do not compel recognition of the privilege
Precedent aside, the stations raise a number of interesting contentions as to possible effects on press freedom if they are compelled to disclose video outtakes in response to discovery subpoenas. To address these points, we assume without deciding that Branzburg did not completely close the door to a qualified reporter's privilege based on the federal constitution. We conclude, however, that the stations have not made the case for recognizing the privilege as to the interview even if the question is an open one as a general proposition. The gravamen of the claim, as in Branzburg, is a possible chilling effect on the flow of information on matters of public concern. If confidentiality cannot be guaranteed, the argument goes, some people will not speak to the press and meaningful news reporting will be jeopardized. This concern is not presented in this case where the source is the defendant herself and there is no claim of confidentiality.See footnote 14 It is more difficult to gauge the stations' contention that information will be withheld from the press even if the source's confidentiality can be guaranteed. The Supreme Court was not persuaded by this contention in Branzburg, concluding that the data at that point did not establish a chilling effect.
Branzburg, 408 U.S. at 693-95. Common experience since Branzburg does not seem to
suggest a different result today. Not long after Branzburg was decided, an unprecedented
era of aggressive investigative reporting, beginning with the Watergate scandal, was born.
If the abundance of information that is currently available on television, radio, the Internet,
and in printed form is any guide, public debate is "uninhibited, robust and wide-open," New
York Times Co. v. Sullivan, 376 U.S. 254, 270, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964),
notwithstanding reporters' civic obligation to give evidence in criminal proceedings. The
proponents of any privilege must carry the burden of establishing the need for it. The
stations have not shown a chilling effect and we have not been given any reason beyond pure
supposition to believe one exists. Certainly in this case, where the source is already known
and there is no reasonable expectation of confidentiality, the claim is meritless.
The stations also argue that compelled disclosure of unaired outtakes might encourage prompt destruction of that data to foreclose the possibility of producing the outtakes in response to a subpoena. Information of possible public interest will then have been prematurely destroyed. In light of apparent industry custom to recycle videotapes and eventually erase unaired portions, the validity of this claim seems questionable, and at least undocumented on the record before us. Moreover, businesses of all kinds routinely make decisions about what information to keep and what to discard, typically based on a range of considerations, including the likelihood of use in a future lawsuit. It is purely speculative that the media will destroy outtakes solely to avoid turning them over in response to a discovery request. If the information is of sufficient public concern, mercantile interests will
dictate that the information be preserved irrespective of this consideration. Perhaps more
importantly, the stations assert a right to keep the information from the public in the name
of preserving it. If it is never to see the light of day, it is difficult to see the public value in
The stations suggest that disclosure of outtakes will reveal insights into the minds of television editors and chill reporting of crimes of public interest. Outtakes necessarily reveal what was determined not to be worthy of publication, but the effect on press freedom from this disclosure is once again speculative. Nor does this appear to present any basis for a First Amendment privilege. Cf. Herbert v. Lando, 441 U.S. 153, 99 S. Ct. 1635, 60 L. Ed. 2d 115 (1979) (in public figure's defamation suit against editor of television program, First Amendment did not proscribe inquiry into editor's state of mind regarding the editorial process).
The stations maintain that compliance with discovery subpoenas will distract reporters and editors from doing their job and impose a drain on resources and time. Although it is possible to envision a situation in which compliance is so time-consuming that reasonable ability to report the news is undermined, we do not have that case here. As noted above, Cline is entitled only to a copy of the full interview conducted with her while she was in police custody. There is no reason to suppose that compliance with that request imposes any significant burden. In holding that reporters could be forced to reveal confidential information and sources at a grand jury, Branzburg implied that the time required to comply with the subpoena provides no basis for a constitutional objection. If the claim is that
somehow the media are exempt from the obligations of citizenship because compliance may
distract them from a higher calling, we reject that just as we reject similar claims from public
officials, clergy, and others. See, e.g., Clinton v. Jones, 520 U.S. __, 117 S. Ct. 1636, 137
L. Ed. 2d 945 (1997).
The stations also argue that defense lawyers will single out the press as a short cut to criminal discovery and that subpoenas such as Cline's may become routine if for no reason other than to develop a paper trail to defend against possible claims of ineffective assistance of counsel. This amounts to an assertion that the discovery process will be used for an improper purpose. Use of discovery in bad faith is proscribed under both the First Amendment and the Trial Rules. See Branzburg, 408 U.S. at 709-10 (Powell, J., concurring) (cautioning that Branzburg should not be read to sanction "harassment" of the press). In this respect, the Trial Rules and First Amendment are overlapping, if not coextensive. As explained in Part I, the press may have a range of legitimate reasons to resist a discovery request under state law. If a request is frivolous then sanctions are available. The reasons urged here for recognizing a constitutional privilege, including harassment or improper purpose, may be viable grounds to resist disclosure under the Trial Rules irrespective of First Amendment considerations. Accordingly, trial courts should be sensitive to any claim of improper purpose when a newsgatherer objects to a discovery subpoena. But this must be done on a case by case basis; the possibility of abuse does not justify immunity from discovery that the stations seek. Unless and until this horrible shows up at a real parade we are unwilling to assume it as a basis for decision.
The stations' constitutional claim ultimately turns on the breadth of the First
Amendment's "implicit guarantee against undue interference with the acquisition of
knowledge." Laurence H. Tribe, American Constitutional Law § 12-22, at 976 (2d ed.
1988). To be sure, the First Amendment's scope is not limited to direct restrictions on
speech or assembly. Some newsgathering activities are constitutionally protected for
prophylactic reasons to ensure the "free discussion of governmental affairs." Globe
Newspaper Co. v. Superior Court for the County of Norfolk, 457 U.S. 596, 604, 102 S. Ct.
2613, 73 L. Ed. 2d 248 (1982) (press and public have First Amendment right of access to
criminal trials) (internal quotation marks omitted). Justice Brennan referred to this sort of
consideration as the "structural" component of the First Amendment. As he put it, the First
Amendment is concerned with fostering "indispensable conditions of meaningful
communication," but this protection must be applied with "discrimination and temperance"
and in consideration of possible encroachment on other important interests. Richmond
Newspapers, Inc. v. Virginia, 448 U.S. 555, 587-88, 100 S. Ct. 2814, 65 L. Ed. 2d 973
(1980) (Brennan, J., concurring). The sum of this is that even assuming an incidental
chilling effect on the flow of information, the prophylactic scope of the First Amendment
must yield where another important interest is implicated. In giving way to the societal right
to every person's evidence, structural First Amendment considerations show no hint under
current precedent that special protection for the press is required. Nor have we been given
reason to believe it is necessary.
We agree with Justice Powell's Branzburg concurrence that an unnecessarily high
threshold for obtaining evidence from reporters, tantamount to a presumption of non-
discoverability, might upset the fair balancing of interests (largely based on discovery rules)
that already occurs without the requirement of a special showing. As the Second Circuit
observed in rejecting one of the first reported claims of First Amendment newsgatherer's
privilege in 1958:
Freedom of the press, hard-won over the centuries by men of courage, is basic to a free society. But basic too are courts of justice, armed with the power to discover truth. The concept that it is the duty of a witness to testify in a court of law has roots fully as deep in our history as does the guarantee of a free press.
Garland v. Torre, 259 F.2d 545, 548 (2d Cir. 1958). Both criminal defendants and society
in general have a major stake in accurate, informed, and fair adjudication of criminal
proceedings. It is hardly a novel idea that assertions of privilege must give way to a specific
need for evidence in a criminal case. See, e.g., United States v. Nixon, 418 U.S. 683, 94 S.
Ct. 3090, 41 L. Ed. 2d 1039 (1974). We conclude that the First Amendment does not require
in every case a special showing of need and relevance beyond those imposed under discovery
procedures when information in a criminal case is demanded from a reporter.See footnote
opinion, or restricting the right to speak, write, or print, freely, on any subject whatever: but
for the abuse of that right, every person shall be responsible." Relying on Price v. State, 622
N.E.2d 954 (Ind. 1993), the stations contend, in the vernacular of Price, that gathering and
disseminating information about criminal proceedings is a "core constitutional value" and
that compelled disclosure of unaired video footage related to those events "materially
burdens" this core value. Cline responds that Price is "irrelevant" to determining whether
Section 9 recognizes a qualified reporter's privilege. It is not self-evident that the
methodology of Price applies to the asserted privilege here, but we need not resolve that
issue. Assuming without deciding that a "material burden" on newsgathering ability could
establish a violation of the Indiana Constitution, or at least that the information at stake is
entitled to constitutional protection, we easily conclude that Cline's discovery demand does
not rise to the level required to establish a Section 9 violation.
As noted in addressing the First Amendment argument, the stations remain free to publish or not to publish as they see fit, and to communicate with any source of information they see fit. There is no direct restraint on these activities and it is not reasonably apparent that requiring the press to comply with discovery requests has produced or will produce a chilling effect on the flow of information. The burden of going through archives or inventory in response to a subpoena will inevitably occupy time and energy that might otherwise be spent preparing and publishing news stories. However, the "distraction" argument is particularly unpersuasive in light of the stations' concession in their brief that Cline is entitled to copies of any relevant footage that was broadcast. The claim then is reduced to
the inconvenience of also copying the outtakes. Irrespective of the particular facts here, we have been given no reason to believe that a discovery request by a criminal defendant that comports with the requirements of the Indiana Rules of Trial Procedure will amount to anything more than a slight imposition on the media, and no impairment at all of their ability to report the news. Abuses or claims of actual impairments of the flow of information can be dealt with on a case by case basis. Certainly this case presents no grounds for finding a constitutional violation.
547, 98 S. Ct. 1970, 56 L. Ed. 2d 525 (1978) rejected the claim that a warrant to search the offices of a
newspaper could not be issued without a special showing of need for the information. Justice Powell
cautioned in Zurcher that his Branzburg concurrence
does not support the view that the Fourth Amendment contains an implied exception for the press . . .
. That opinion noted only that in considering a motion to quash a subpoena directed to a newsman,
the court should balance the competing values of a free press and the societal interest in detecting and
prosecuting crime. The concurrence expressed no doubt as to the applicability of the subpoena
procedure to members of the press. Rather than advocating the creation of a special procedural
exception for the press, it approved recognition of First Amendment concerns within the applicable
Id. at 570 n.3 (Powell, J., concurring). And in his dissent in Saxbe v. Washington Post Co., 417 U.S. 843, 94 S. Ct. 2811, 41 L. Ed. 2d 514 (1974), Justice Powell observed that Branzburg "considered the assertion by newsmen of a qualified First Amendment right to refuse to reveal their confidential sources or the information obtained from them to grand juries. The Court rejected this claim . . . ." Id. at 858 (Powell, J., dissenting).
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