Planet Aid, Inc. et al v. Reveal, Center for Investigative Reporting et al

Filing 203

ORDER RE: QUALIFIED REPORTERS' WORK PRODUCT PRIVILEGE 202 . Signed by Magistrate Judge Jacqueline Scott Corley on 2/26/2019. (ahm, COURT STAFF) (Filed on 2/26/2019)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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PLANET AID, INC., et al.,
Plaintiffs,

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Case No.17-cv-03695-MMC (JSC)

v.
REVEAL, CENTER FOR
INVESTIGATIVE REPORTING, et al.,

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United States District Court
Northern District of California

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ORDER RE: QUALIFIED
REPORTERS’ WORK PRODUCT
PRIVILEGE

Defendants.

Re: Dkt. No. 202

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Plaintiffs sue Defendant news reporting agency and its reporters for defamation. Now

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pending before the Court is the parties’ discovery dispute joint letter regarding application of the

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qualified reporters’ work product privilege to a transcript of a conversation with one of

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Defendants’ sources. (Dkt. No. 202.) After carefully considering the parties’ submissions, the

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Court concludes that oral argument is not necessary, see N.D. Cal. Civ. L. R. 7-1(b), and

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determines that an in camera review of the redacted material is warranted in the specific

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circumstances here.

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BACKGROUND

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This defamation lawsuit arises out of a podcast and articles Defendants published about

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Plaintiff charitable organization and one of its subcontractor’s employees. In general, Plaintiffs

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challenge as false Defendants’ statements to the effect that Plaintiffs engaged in fraud in

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connection with a United States foreign aid program in Malawi. Defendants responded to the

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lawsuit by filing an anti-SLAPP motion to strike. The parties are currently engaged in discovery

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in connection with that motion. As relevant here, Defendants have produced information about

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their sources for the stories, including transcripts of interviews with those sources; in particular,

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they have produced a transcript of an October 20, 2016 interview with source Harrison Longwe,

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an accountant in Malawi. Defendants, however, have redacted and withheld from Plaintiffs

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approximately 8 minutes of the 23 minute conversation on the grounds that it is protected by the

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qualified reporters’ work product privilege. In support of their redactions, Defendants have

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submitted a declaration of Matt Smith, the reporter who conversed with Mr. Longwe on October

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20, 2016—after the allegedly defamatory stories were published. Mr. Smith attests that the

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withheld portions of the conversation explored topics that are distinct from those at issue in this

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lawsuit and thus protected by the reporters’ privilege. (Dkt. No. 202-3.) Plaintiffs contend that

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Defendants should be compelled to produce the redacted portions of the interview because: (1)

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Defendants have not met their burden of showing the privilege applies; and (2) even if Defendants

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have made such a showing, Plaintiffs have overcome the privilege.
DISCUSSION

United States District Court
Northern District of California

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Journalists enjoy a qualified privilege against compelled disclosure of information

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gathered in the course of their work. Shoen v. Shoen (“Shoen II”), 48 F.3d 412, 416 (9th Cir.

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1995). The privilege extends to nonconfidential sources and materials and applies if there is an

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“intent to use material—sought, gathered or received—to disseminate information to the public

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and such intent existed at the inception of the newsgathering process.” Shoen v. Shoen (“Shoen

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I”), 5 F.3d 1289, 1292 (9th Cir. 1993). Where the information sought is not confidential, a party is

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entitled to requested discovery notwithstanding a valid assertion of the journalist’s privilege “only

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upon a showing that the requested material is: (1) unavailable despite exhaustion of all reasonable

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alternative sources; (2) noncumulative; and (3) clearly relevant to an important issue in the case.”

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Shoen II, 48 F.3d at 416. “[T]here must be a showing of actual relevance; a showing of potential

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relevance will not suffice.” Id.

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Defendants have met their initial burden of showing that the privilege applies. Mr. Smith

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is a journalist and he was speaking to Mr. Longwe in his role as a journalist and to Mr. Longwe as

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a source. Although Mr. Smith also spoke with Mr. Longwe about the defamation lawsuit and the

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topics of the allegedly defamatory stories, he attests that he was also and primarily speaking to Mr.

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Longwe about other topics for potential publication. (Dkt. No. 202-3.) The privilege thus applies.

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Plaintiffs’ suggestion that Shoen II does not apply when the journalist is a defendant in the lawsuit
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in which the discovery is sought does not make sense. Under the Shoen II test the privilege may

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be more likely to be overcome when the discovery is sought from a defendant/reporter because the

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discovery is more likely “to be clearly relevant to an important issue in the case,” but the privilege

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still applies in the first instance. To hold otherwise would encourage plaintiffs to add reporters as

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defendants merely as a vehicle to avoid application of the qualified reporter’s privilege. See

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Planned Parenthood Fed’n of Am., Inc. v. Ctr. for Med. Progress, No. 16-CV-00236-

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WHO(DMR), 2018 WL 2441518, at *14 (N.D. Cal. May 31, 2018) (applying Shoen II to

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discovery requests made of the defendant journalists). Such a result is not consistent with the First

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Amendment concerns animating the privilege. See Shoen I, 5 F.3d at 1292. The critical question,

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then, is whether under the Shoen II test the privilege should yield to Plaintiffs’ discovery request.

United States District Court
Northern District of California

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Plaintiffs have reasonably exhausted alternative sources for what Mr. Smith and Mr.

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Longwe discussed on October 20, 2016. Mr. Smith is claiming the reporters’ privilege for the

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withheld information. And Mr. Longwe has stated by email that he will not speak with Plaintiffs’

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counsel. As Mr. Longwe is outside this District, indeed outside the United States, he is beyond the

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subpoena power of this Court and of any court in the United States. Further, according to

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Plaintiffs, Malawi, where it is believed Mr. Longwe resides, is not a participant in the Hague

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Convention.

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As there does not appear to be any other evidence in the record disclosing what Mr. Smith

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and Mr. Longwe discussed on October 20, 2016, the information sought appears to be

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noncumulative. At least the Court cannot conclude otherwise given that Defendants have not

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identified what the withheld information is, other than that it is “distinct” from the topics of this

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lawsuit.

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The issue thus turns on whether the information sought is “clearly relevant to an important

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issue in the case.” Shoen II, 48 F.3d at 416. There is no dispute that Mr. Longwe was a key

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source for Defendants’ stories about Plaintiffs. Thus, conversations he had with Defendants

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regarding what he had said to Defendants prior to the publication of the stories, the truth or falsity

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of those allegations, or Defendants’ knowledge of the same, are clearly relevant to this lawsuit;

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indeed, that is why Defendants have not asserted the privilege for all of Mr. Smith’s
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communications with Mr. Longwe. But here Mr. Smith claims that portions of the conversation

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shed no light on this lawsuit and therefore remain privileged. While Defendants may be correct,

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there is no way to test Mr. Smith’s assertion without the Court’s review of the redacted materials

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in camera.

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Defendants’ insistence that in camera review is not warranted fails to persuade. Plaintiffs
have met their burden of a good faith belief that the redacted material may contain discoverable

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information given that Mr. Smith had relevant communications with Mr. Longwe in the very

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conversation which Defendants seek to redact. Further, the record supports an inference that the

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redacted portion of the conversation involved Plaintiffs, and Defendants offer nothing other than

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Mr. Smith’s assertion to support their contention that the redacted conversation is not relevant to

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United States District Court
Northern District of California

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this lawsuit. No case requires a court to simply accept such an unadorned assertion.
CONCLUSION

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On or before March 5, 2019, Defendants shall provide the Court with the full transcript of

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Mr. Smith’s October 20, 2016 calls with Mr. Longwe for the Court’s in camera review. The

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transcript may be delivered to chambers, rather than filed on the docket, with a cover letter or

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cover pleading filed on the docket indicating that the transcript has been delivered.

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IT IS SO ORDERED.
Dated: February 26, 2019

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JACQUELINE SCOTT CORLEY
United States Magistrate Judge

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