Salazar v. Phoenix, City of et al

Filing 194

ORDER: IT IS ORDERED denying City Defendants' "Motion to Compel Scripps Media, Inc. to Respond to Subpoena" (Doc. 163 ). IT IS FURTHER ORDERED denying Scripps' request for attorneys' fees. (See Order for details.) Signed by Magistrate Judge Eileen S Willett on 11/18/21. (SST)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Frances Salazar,
Plaintiff,

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ORDER

v.

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No. CV-19-01188-PHX-SRB (ESW)

City of Phoenix, et al.,

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Defendants.

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The Court has reviewed City Defendants’1 “Motion to Compel Scripps Media, Inc.

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to Respond to Subpoena” (Doc. 163), Scripps Media, Inc.’s (“Scripps”) Response (Doc.

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177), City Defendants’ Reply (Doc. 183), and Scripps’ Sur-Reply (Doc. 190). City

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Defendants seek copies of ABC15’s unedited video and audio recordings of interviews of

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Plaintiff and two of her attorneys that ABC15 conducted in connection with investigative

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news reports.

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Journalists have a qualified privilege against compelled disclosure of information

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and records gathered in the course of their reporting. The seminal Ninth Circuit cases on

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the issue of the federal journalist’s privilege are Shoen v. Shoen, 5 F.3d 1289 (9th Cir.

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City Defendants include Defendants City of Phoenix, Jeri Williams, Joseph
Yahner, and Anthony Armour.

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1993) (“Schoen I”) and Shoen v. Shoen, 48 F.3d 412 (9th Cir. 1995) (“Shoen II”). In Shoen

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I, the Ninth Circuit explained:
Rooted in the First Amendment, the privilege is a recognition
that society’s interest in protecting the integrity of the
newsgathering process, and in ensuring the free flow of
information to the public, is an interest “‘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) (Brennan, J., dissenting) (quoting McCormick on
Evidence 152 (2d ed. 1972)).

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Shoen I, 5 F.2d at 1292. The journalist’s privilege is qualified and not absolute. “[T]he

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process of deciding whether the privilege is overcome requires that ‘the claimed First

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Amendment privilege and the opposing need for disclosure be judicially weighed in light

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of the surrounding facts, and a balance struck to determine where lies the paramount

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interest.’” Id. at 1292-93 (quoting Farr, 522 F.2d at 468). The Ninth Circuit in Shoen II

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held that

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[W]here information sought is not confidential, a civil litigant
is entitled to requested discovery notwithstanding a valid
assertion of the journalist’s privilege by a nonparty only upon
a showing that the requested material is: (1) unavailable despite
exhaustion of all reasonable alternative sources; (2)
noncumulative; and (3) clearly relevant to an important issue
in the case. We note that there must be a showing of actual
relevance; a showing of potential relevance will not suffice.

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Shoen II, 48 F.3d at 416.

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After reviewing City Defendants and Scripps’ briefing, the Court finds that City

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Defendants have not satisfied the requirements necessary to overcome the journalist’s

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privilege.

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Accordingly,

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IT IS ORDERED denying City Defendants’ “Motion to Compel Scripps Media,

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Inc. to Respond to Subpoena” (Doc. 163).

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IT IS FURTHER ORDERED denying Scripps’ request for attorneys’ fees.2

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Dated this 18th day of November, 2021.

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Honorable Eileen S. Willett
United States Magistrate Judge

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The Court will not order sanctions “when it finds that a position was substantially
justified in that the parties had a genuine dispute on matters on which reasonable people
could differ as to the appropriate outcome.” Roberts v. Clark County School District, 312
F.R.D. 594, 609 (D. Nev. 2016); see also Pierce v. Underwood, 487 U.S. 552, 565 (1988)
(stating that “the test for avoiding the imposition of attorney’s fees for resisting discovery
in district court is whether the resistance was substantially justified. To our knowledge,
that has never been described as meaning justified to a high degree, but rather has been
said to be satisfied if there is a genuine dispute, or if reasonable people could differ” as to
the appropriateness of the contested action).
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