Gregory et al v. Miami Dade County, Florida et al
Filing
173
ORDER Denying 118 Nonparties NBC and Reporter Willard Shepard's Motion to Quash February 2015 Subpoena Duces Tecum For Deposition and Protective Order. Signed by Magistrate Judge Andrea M. Simonton on 5/28/2015. (par)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
CASE NO. 13-21350-CIV-GRAHAM/SIMONTON
ANDRES GREGORY, et. al.,
Plaintiffs,
v.
MIAMI-DADE COUNTY, et. al.,
Defendants.
_________________________________/
ORDER DENYING NONPARTIES NBC AND
REPORTER WILLARD SHEPARD’S MOTION TO QUASH
FEBRUARY 2015 SUBPOENA DUCES TECUM FOR
DEPOSITION AND FOR PROTECTIVE ORDER
This Matter is before the Court upon Nonparties NBC and Willard Shepard’s
Motion to Quash February 2015 Subpoena Duces Tecum for Deposition and for
Protective Order, ECF No. [118]. The Defendants have filed a Response to the Motion,
ECF No. [125] and NBC and Willard Shepard have filed a Reply, ECF No. [131]. The
Motion has been referred by the Honorable Donald L. Graham, the District Judge
assigned to the case, to the undersigned Magistrate Judge to take all necessary and
proper action as required by law, ECF No. [124].
On May 5, 2015, the undersigned held a hearing on the Motion.1 Based upon the
written submissions, the arguments made at the hearing and the applicable law, the
undersigned denies the Nonparties’ Motion to Quash and for Protective Order related to
the Defendants’ February 2015 Subpoena Duces Tecum.
1
Both Counsel for Defendant Perez and NBC attended the hearing and presented
argument on the Motion to Quash. Counsel for Andres Gregory elected not to attend the
hearing.
I.
BACKGROUND
This civil rights action, brought pursuant to 42 U.S.C. § 1983, arises out of a
Miami-Dade County Police Officer’s shooting of a minor that occurred on May 28, 2012,
ECF No. [1]. According to the Third Amended Complaint (“Complaint”), Plaintiff
Sebastian Gregory (“Gregory”) was shot multiple times by Defendant Officer Perez
during an encounter between the two, ECF No. [60]. The Complaint alleges that after
Officer Perez ordered Sebastian Gregory to the ground, Gregory “was in the process of
making himself prone on the ground with his back to Officer Perez” and “posed no
threat” when Officer Perez shot Gregory multiple times in the back, ECF No. [60] at 2. The
Complaint alternatively alleges that while Gregory “was in the process of making himself
prone on the ground with his back to Officer Perez when [he] turned slightly to make
himself more comfortable while posing no threat to Officer Perez” and was shot in the
back multiple times, ECF No. [60] at 3.
In the Answer, Defendant Officer Perez asserts, inter alia, that his actions were
justified and reasonable and further asserts that Officer Perez reasonably believed that
the force he used in his encounter with Gregory was necessary to prevent imminent
death or great bodily harm to himself or to prevent the imminent commission of a
forcible felony, ECF No. [64] at 3-4.
The dispute currently before the Court involves the request by Nonparty NBC’s
subsidiary WTVJ-TV and one of its reporter’s, Willard Shepard, (collectively referred to as
“NBC”) request for a Court order quashing a subpoena issued by the Defendants on or
about February 21, 2015. The subpoena, styled as a Subpoena to Testify at a Deposition
in a Civil Action, seeks the production of information related to a January 14, 2014
interview of Gregory by NBC reporter Willard Shepard. The subpoena requires Willard
Shepard to appear for a deposition and to produce certain news gathering materials, as
follows:
2
All documents related to the NBC6 news story that ran on or
about January 14, 2014 featuring Sebastian Gregory,
including but not limited to raw interview footage,
photographs, notes or other written, audio-visual, or
electronic documents or files.
ECF No. [118-1]. The news broadcast at issue includes Mr. Shepard’s recitation of
statements purportedly made by Gregory during the interview regarding Gregory’s
actions just prior to the shooting. In particular, as set forth in the Defendants’ opposition
to the Motion to Quash, during the newscast, Mr. Shepard stated, “He [Gregory] told us a
Miami-Dade police car pulled up from behind and an officer ordered him to the ground.
Gregory says he reached to adjust the bat so he could comply.” ECF No. [125].2 Through
the Subpoena, the Defendant seeks to have Mr. Shepard testify regarding the statements
made to him by Gregory during the interview to establish what occurred just prior to the
shooting.
II.
THE POSITIONS OF THE PARTIES
A.
Position of Non-Parties NBC and Willard Shepard
In the Motion to Quash and at the hearing, NBC argued that the subpoena should
be quashed because the journalists’ privilege prohibits the Defendant from compelling
Mr. Shepard’s deposition or the production of his news gathering materials.3 NBC
asserts that in order to overcome the journalists’ privilege, the Defendant must satisfy
the three prong test set out by the Eleventh Circuit in United States v. Caporale, 806 F.2d
1487, 1503–04 (11th Cir. 1986) by demonstrating that the testimony sought: 1) is highly
relevant to the claims or defenses in this action; 2) is needed in order for Defendant
2
The video clip link is available at http://www.nbcmiami.com/investigations/
Parents-of-Teen-Shot-by-Officer-Want-Answers-240183991.html.
3
At the hearing, NBC stated that no news gathering materials existed. Therefore,
the undersigned only addresses the Motion to Quash to the extent that the subpoena
seeks to compel Mr. Shepard’s deposition testimony.
3
Perez to mount a successful case; and, 3) is not available from other sources. NBC
contends that in this case, the Defendant Officer is unable to satisfy any of the prongs of
the Caporale test and therefore the subpoena should be quashed. As to the first prong,
NBC argues that because Mr. Shepard has no first-hand knowledge of Officer Perez’s
motives related to the shooting or the conduct alleged to have violated Gregory’s civil
rights, Mr. Shepard’s testimony is not highly relevant to the claims or defenses in this
lawsuit. NBC next asserts that Mr. Shepard’s testimony is not necessary to the
presentation of the Defendant’s case because, again, Mr. Shepard has no first-hand
knowledge of the conduct at issue. NBC thus contends that the Officer’s successful
defense of the case will rise or fall on its own merit without Mr. Shepard’s testimony.
Third, NBC contends that there are alternative sources available to confirm the
statements made by Gregory regarding the events of the shooting. Thus, NBC contends
that the Defendant’s desire to obtain the Mr. Shepard’s testimony to impeach Gregory is
insufficient to satisfy the final requirement necessary to overcome the journalists’
privilege.
B.
Position of Defendant Officer Perez
In response, the Defendant argues that the journalists’ privilege is outweighed by
Officer Perez’s right to defend himself against allegations of an unjustified shooting in
this § 1983 action. In support of this contention, the Defendant asserts that because
during his deposition Gregory denied that he made statements to Mr. Shepard regarding
Gregory’s actions just prior to the shooting, the Defendants need to depose Mr. Shepard
to confirm that Gregory, in fact, made such statements. The Defendants contend that
such statements are admissions and are not needed merely for impeachment purposes
but are highly relevant to this action because they directly bear on whether Officer Perez
had grounds to believe that Gregory posed a threat of serious physical harm. Further,
the Defendant contends that because Officer Perez’s defense is that he shot Gregory
4
because he believed that Gregory was reaching for a gun when Gregory reached for the
aluminum bat concealed in his waistband, the requested testimony is necessary for the
proper presentation of the case. Finally, the Defendant asserts that he has exhausted all
other avenues to obtain Gregory’s admissions because Gregory has denied making
those statements, and Gregory’s parents testified in their depositions that they did not
recall hearing Gregory making such statements. Thus, the Defendant contends that he
has satisfied all three of the Caporale factors and is entitled to depose Shepard on this
issue.
III.
LAW AND ANALYSIS
A.
The Journalists’ Privilege
The Eleventh Circuit recognizes a qualified privilege for journalists which allows
them to resist compelled disclosure of their professional news gathering efforts in both
criminal and civil proceedings, U.S. v. Capers, 708 F.3d 1286, 1303 (11th Cir. 2013). This
privilege stems from the adverse effect of forcing journalists to testify in judicial
proceedings about the substance of their news reports. See Miller v. Transamerican
Press, Inc., 621 F.2d 721, 725 (5th Cir. 1980)4 (formally adopting reporter's privilege
enunciated by other circuits). This privilege applies whether the professional news
gathering efforts and results are published or not. McCarty v. Bankers Insurance Co.,
195 F.R.D. 39, 44 (N.D. Fla. 1998).
In United States v. Caporale, 806 F.2d 1487, 1503–04 (11th Cir. 1986), the Eleventh
Circuit set forth a three-prong standard that a litigant must meet in order to overcome the
reporter’s privilege, as follows: (1) the information sought must be highly relevant; (2) the
information must be necessary to the proper presentation of the case; and, (3) the
4
In Bonner v. City of Prichard, Ala., 661 F. 2d 1206, 1210 (11th Cir. 1981), the
Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit
handed down as of September 30, 1981.
5
information must be unavailable from other sources. Caporale, 806 F.2d at 1504,
McCarty, 195 F.R.D. at 47. Overcoming the standard is a “heavy burden” and the
standard must be met by clear and convincing evidence. U.S. v. Thompson, No. 20522CIV-CR, 2015 WL 1608462 * 1 (S.D. Fla. April 10, 2015), citing McCarty v. Bankers Ins. Co.,
195 F.R.D. 39, 47 (N.D. Fla.1998). In addition, in the Eleventh Circuit, the test for
overcoming the privilege remains the same even if the information was not obtained from
a confidential source. United States v. Blanton, 534 F. Supp. 295, 297 (S.D. Fla. 1982).
Based upon the facts of this case, for the reasons set forth below, the
undersigned concludes that Defendant Officer Perez has satisfied the test set forth by
the Eleventh Circuit in Caporale, and is entitled to obtain limited testimony from NBC’s
reporter, Willard Shepard.
B.
Defendant Officer Perez has demonstrated clearly and convincingly
that the testimony sought is highly relevant, necessary to the proper
presentation of the case and unavailable from other sources
1.
The testimony sought is highly relevant to this action.
The first Caporale prong that the Defendant must meet in order to overcome the
journalists’ privilege is to demonstrate that the information sought is highly relevant to
the action. As stated above, the Defendant contends that Gregory’s statements made to
the reporter are highly relevant to this action because such statements are substantive
evidence of what actions the Plaintiff took, including any movement of the bat, just prior
to being shot by the Defendant Officer. Defendant contends that these statements
therefore, are crucial evidence regarding the central issue in dispute in this case. NBC,
on the other hand, argues that the reporter’s testimony is not relevant, let alone, highlyrelevant, because Mr. Shepard has no first hand knowledge of the events that occurred at
or just prior to the shooting. NBC further asserts that the very argument advanced by
Defendant on this factor was rejected by a trial court in United States v. Diaz, No. 0320895-CR, 2004 WL 1944851, at *1 (S.D. Fla. April 27, 2004).
6
Based upon a thorough review of the record, the undersigned concludes that the
information sought by the Defendant directly relates to the crux of the dispute in this
case; whether Officer Perez’s actions related to the shooting were justified. Indeed, in
his deposition, Officer Perez testified that just before the shooting, Gregory moved his
right hand quickly to what Officer Perez believed was a gun, and that Officer Perez
believed that Gregory was going to shoot him, so he needed to act to defend his life, ECF
No. [154-1] at 93.
In contrast, in his deposition, Gregory testified that right before the shooting,
while he lay on the ground with his hands stretched out, he wobbled his leg because the
bat was bothering him, ECF No. [154-2] at 27, 28. Gregory also testified that he did not
tell the reporter that he reached to adjust the bat so that he could comply with Officer
Perez’s command, ECF No. [154-2] at 23.
Similarly, in the Defendant’s Motion for Summary Judgment, the Defendant
contends, inter alia, that, just prior to the shooting, Plaintiff Gregory Sebastian moved his
hand quickly toward a shiny metallic object and that Officer Perez believed that he was
reaching for a gun, ECF No. [154] at 6. In response, the Plaintiff states that Sebastian
Gregory denies reaching for anything at that time, ECF No. [161] at 6.
Based upon the allegations and defenses in this action, there can be little doubt
that a determination of the actions of both the Defendant and Gregory at the time of the
shooting is critical to determining the validity of the Defendant’s defenses. Thus, the
reporter’s testimony regarding Gregory’s statements, which purportedly describe
Gregory’s actions at the time of the shooting, particularly in light of Gregory’s deposition
testimony denying those same actions, is central to this dispute and thus is highly
relevant to this action.
It is for this reason that this action is distinguishable from Diaz, wherein a
defendant subpoenaed a reporter to testify about information the reporter received from
7
law enforcement regarding an anonymous tip which led to the seizure of a boat carrying
a large amount of cocaine. United States v. Diaz, No. 03-20895-CR, 2004 WL 1944851 *1
(S.D. Fla. April 27, 2004). In granting the reporter’s motion to quash the subpoena, the
court determined that the defendant failed to demonstrate that the information sought
was relevant to his motion to suppress. Although the court stated to the extent that the
defendant was seeking the reporter’s testimony to verify the statements of law
enforcement agents, that reason was legally insufficient to overcome the privilege, the
court first noted that the defendant had asserted numerous arguments and facts to
support his motion to suppress, none of which related to the reporter or the news story.
The court thus stated that the substance of communications from law enforcement
agents to the reporter was not relevant to their alleged actions or the basis for the stop
and seizure of evidence.5
In this case, unlike in Diaz, the statements made by Gregory are highly relevant to
the Defendant’s claim that his actions were justified. Moreover, the Defendant has
substantial information regarding Gregory’s change of his version of eventsregarding
whether he adjusted the bat prior to the shooting, based upon Gregory’s deposition
testimony in comparison to the statements made by the reporter following the interview
with Gregory. In other words, the nature and significance of the testimony sought by the
Defendant from the reporter is not speculative, but is specific and highly relevant to the
Defendant’s claims in this action.
5
In addition, the court in Diaz found that the defendant failed to demonstrate
that the information sought was not available elsewhere, and noted that the details of the
anonymous tip had been well-documented by the filings and testimony in the case. Id. at
*2.
8
2.
The information sought is necessary to the proper
presentation of the case
Under the Caporale test, the Defendant next must demonstrate that the
information sought is necessary to the proper presentation of the case. NBC argues that
the Defendant has failed to meet his burden because it is not enough that a witness or
litigant has adopted a position contrary to a position previously taken to satisfy this
prong. Rather, NBC contends that this prong is met only when the moving party can
“prove they cannot mount a successful case without it,” ECF No. [118] at 6. In response,
the Defendant contends that Mr. Shepard’s testimony is necessary to the proper
presentation of this case because, as stated above, Gregory’s actions before the
shooting are critical to the officer’s defense. In this regard, Defendant argues that
because Mr. Shepard’s testimony will confirm Gregory admitted to Mr. Shepard that he
reached for the partially concealed baseball bat prior to being shot, and then denied such
facts in his deposition, the testimony would serve to corroborate the officer’s version of
the facts. Defendant asserts that the testimony will serve to inform the jury that both the
Plaintiff and Defendant initially presented consistent versions of the incident, both of
which support the officer’s defense in this action.6
At the outset, the undersigned notes that it is somewhat unclear how this prong of
the Caporale test may be satisfied under current Eleventh Circuit law. In several circuits,
courts generally apply a lower standard to a party seeking to overcome the journalists’
privilege where the information sought is non-confidential. See U.S. v. LaRouche
Campaign, 841 F. 2d 1176 (1st Cir. 1988); Gonzales v. National Broadcasting Co., 194 F.3d
29, 35 n.5 (2d Cir. 1999). The Eleventh Circuit, however, has not made such a distinction.
6
In its brief, the Defendant also asserts that the testimony is necessary as a
check on the Plaintiff’s efforts to poison the jury pool in this case by providing a one
sided account of the incident on a widely-viewed local news broadcast, ECF No. [125] at
13. However, the Defendant fails to provide any support for this assertion and the
undersigned finds little, if any, merit in this argument under the facts of this case.
9
Thus, perhaps in reliance on the Eleventh Circuit’s declination to distinguish the
standard for cases involving confidential information, several district courts in this
circuit have held that, in order to satisfy the second prong of the Caparole test and
demonstrate that the information sought is necessary to the proper presentation of this
case, the entity seeking to overcome the privilege must demonstrate that it would not be
able to succeed on its claims without the information at issue. See e.g. United States v.
Thompson, No. 14-20522-CR, 2015 WL 1608462 *3 (S.D. Fla. April 10, 2015) (stating that
the defendant failed to satisfy the “necessary to the proper presentation of case” prong
where defendant failed to show that it was actually impossible for him to succeed on his
claims without the subpoenaed evidence); McCarty v. Bankers Ins. Co., 195 F.R.D. 39
(N.D. Fla. 1998) (opining that compelling need requirement not met because party failed
to show that he would be unable to succeed on claims without testimony of the reporter).
However a close review of several opinions issued from courts in this circuit prior
to the Eleventh Circuit’s decision in Caporale, and the Caporale decision itself, support
the conclusion that the “necessary to the proper presentation of the case” prong
requires only that a party demonstrate a compelling need for the information rather than
requiring that the party establish that it is unable to prove its claim or defense without
the information sought.7
7
This conclusion is bolstered by the fact that Florida Statute §90.5015 which
addresses the journalist's privilege in Florida, states that the privilege may be overcome
by a clear and specific showing that: (a) the information is relevant and material to
unresolved issues that have been raised in the proceeding for which the information is
sought; (b) the information cannot be obtained from alternative sources; and (c) a
compelling interest exists for requiring disclosure of the information. As noted in
McCarty v. Bankers Ins., this statute establishes a three-part test similar to that of the
federal common law. In McCarty, the Court, in describing the then recently enacted
Florida statute, stated, “Based upon the recent change in Florida law as it relates to the
journalist’s privilege, the Court has determined that application of either the federal
common law standard of the newly announced Florida standard will yield the same
result, as the factors of each are virtually indistinguishable.” Id. at *46. (emphasis
10
In Loadholtz v. Fields, 389 F. Supp. 1299 (M.D. Fla. Feb. 7, 1975), decided a decade
before Caporale, the District Court in a civil action examined whether a newspaper
reporter could be compelled to produce documents and answer deposition questions
about statements made by a defendant to that reporter regarding prior lawsuits that gave
rise to the litigation then before the court. Ultimately, the court concluded that the
paramount interest served by the unrestricted flow of public information protected by the
First Amendment outweighed the subordinate interest served by the liberal discovery
procedures embodied in the Federal Rules of Civil Procedure. Id. at 1300. In reaching
that conclusion, the court observed that the plaintiff in that case had shown no
compelling reason to countermand the principles embodied in the First Amendment and
had “not even demonstrated that the information sought could not be gleaned from other
sources such as interrogatories directed to or depositions of the defendants
themselves.” Id. at 1302. The court did not specifically discuss what would constitute a
“compelling reason” sufficient to overcome the privilege and did not discuss how the
plaintiff’s reasons were deficient.
Several years later, in United States v. Blanton, 534 F. Supp 295, 297 (S.D. Fla.
Feb. 15, 1982), citing Loadholtz, the District Court examined whether a reporter would be
required to testify in a criminal case regarding an article that included drug-related
quotations and other statements attributed to a criminal defendant in a drug prosecution
case. The Government argued that the defendant’s statements were admissions that
were essential to the Government’s proof in the criminal case which was largely
circumstantial. The court rejected the Government’s argument and in doing so stated,
“Although no confidential source or information is involved, this distinction is irrelevant
to the chilling effect enforcement of the subpoena would have on the flow of information
to the press and public.” Id. at 297. The District Court then stated that the First
added).
11
Amendment requires that a reporter be immune from subpoenas in criminal cases unless
the party seeking to overcome the privilege shows: 1) that the information is relevant and
material to the proof of the offense charged or the defendant’s defense; 2) that there is a
compelling need for disclosure sufficient to override the reporter’s privilege; and 3) that
the party has unsuccessfully attempted to obtain other sources less chilling of First
Amendment freedoms. Id. The court concluded that the Government had failed to meet
the test in that it failed to exhaust or make reasonable attempts to exhaust non-media
sources for the information sought or equivalent information.8 The court therefore
granted the reporter’s motion to quash the Government’s subpoena. Notably, the court
stated that the reporter did not need to appear to testify until he was properly served and
until the Government showed that it had met the requirements set out by the court. Id.
Thus, the court never directly addressed the issue of whether the Government had
satisfied or could satisfy the requirement that it had a compelling need for the disclosure
sufficient to override the reporter’s privilege.
In United States v. Caporale, 806 F.2d 1487, 1503–04 (11th Cir. 1986), the Eleventh
Circuit affirmed a district court’s refusal to compel the testimony of two reporters who
had information about the source of a jury-tampering rumor. At the District Court level,
one of the reporters identified the source of the rumor as one of the acquitted defendants
but that same reporter refused to testify about the rumor citing, among other things, the
First Amendment privilege. Id. at 1503. The District Court thereafter permitted the party
seeking the information to propound interrogatories on that particular reporter within a
specified time which the court would then require the reporter to answer. Id. at 1503-04.
However, the party failed to timely serve the interrogatories, and the trial court deemed
8
The Court also concluded that the United States had failed to follow certain
Department of Justice Guidelines, which included had a duty to negotiate in good faith
with the reporter’s counsel. Id. The Court also found that no proper service was made on
the Reporter. Id.
12
the party’s request for the information as waived. In denying the party’s subsequent
request for the information, the trial court noted that the interrogatories were not
essential for a fair determination of the jury-tampering issue because the information
sought from the reporter had been obtained from the revealed source of the rumor,
himself. Id. The Eleventh Circuit found that the District Court’s decision was entirely
reasonable because the party seeking the information failed to take advantage of the
means made available to it to interrogate the reporter, and further concluded that the
party was able to get the information that it sought from the source identified by the
reporter, notwithstanding that the source denied saying anything to anyone about jurytampering. Id. at 1504.
In addition, in evaluating whether the district court in Caporale erred in refusing to
compel the second reporter to testify at the hearing regarding jury-tampering, the
Eleventh Circuit cited the Fifth Circuit’s decisions in Miller v. Transamerican Press, Inc.,
621 F.2d 721 (5th Cir. 1980) and In Re Selcraig, 705 F.2d 789 (5th Cir. 1983), for the
standard that overcoming the reporter’s privilege required that the information be highly
relevant, necessary to the proper presentation of the case and unavailable from other
sources. Id. at 1504. In application of that standard, the reviewing Court found that the
district court did not err in concluding that the defendant failed to demonstrate that the
information sought was unavailable from other sources or necessary to the proper
presentation of the case, in light of the fact that the source of the jury-tampering rumor
had already been obtained by the requesting party when several FBI agents testified at
the hearing regarding the source of the rumor. Id. Thus, the Court did not provide an
analysis of what was required to establish that the information was necessary to the
proper presentation of the case.
The Fifth Circuit opinions cited in Caporale provide some additional guidance on
this point. In Miller v. Transamerican Press, Inc., 621 F.2d 721 (5th Cir. 1980), the Fifth
13
Circuit in a libel action set out the general test for overcoming the reporter’s privilege as
requiring that the information be relevant, unobtainable from other means and that the
entity seeking to overcome the privilege have a compelling interest in the information. Id.
at 726. The court in Miller then compelled the reporter to divulge the identity of his
confidential source finding that the information was relevant and that the plaintiff in the
action had a compelling interest in the information because it was the only way that the
plaintiff could establish malice and prove his libel case. The court in Miller did not state
that a compelling need prong required that the plaintiff demonstrate that absent the
requested information that the plaintiff was unable to establish his libel claim. However,
in a subsequent per curiam opinion, (Miller II), the Fifth Circuit supplemented the original
Miller opinion by including further clarification applicable to the requirements that a
plaintiff in a libel action must show in order to be permitted to obtain the identity of a
confidential informant, by stating that the plaintiff’s showing must include a showing that
the identity of the reporter’s informant is not available by other means and the
knowledge of the identity of the informant is necessary to proper preparation and
presentation of the case. Miller, 628 F.2d 932 (5th Cir. 1980).
It was this language that was included in In Re Selcraig, 705 F.2d 789 (5th Cir.
1983), which was also cited by the Court in Caporale, as setting the standard for
overcoming the journalists’ privilege. Notably, although not specifically quoted by the
Eleventh Circuit, the Court in Selcraig stated,
We have not overlooked the contention made by Selcraig and
by the amicus curiae that the Miller test is not strict enough
to protect the reporter's privilege in civil cases when the
reporter is a non-party witness and that the reporter's
privilege is invadable only if it is shown that there is a
“compelling need” for the information or that it is “absolutely
critical” to a claim or defense. Miller establishes the rule for
this circuit. We deem its criterion an adequate shield.
14
Id. at 799. Thus, the Fifth Circuit rejected the reporter’s attempt to increase the burden
by requiring the information sought to be “absolutely critical” to a claim or defense,
which is the same increase burden that the new media seeks here. Further, in Selcraig, a
case that involved a discharged school official’s suit related to allegedly false and
stigmatizing charges levied against him, the court rejected the reporter’s argument that
because he was not a party trying to protect himself against a libel suit, but was simply a
witness trying to protect his sources, the privilege should shield him from disclosing the
requested information. Id. The court stated that the reporter was not being asked to
divulge information to locate other witnesses but concluded that he was a percipient
witness to a fact at issue, the identity of the persons who had provided him with
information, which was relevant to a claim for punitive damages.9
Finally, in Price v. Time, Inc., 416 F.3d 1327 (11th Cir. 2005), the Eleventh Circuit
vacated and remanded the District Court’s order granting a motion to compel the identity
of an unnamed source in a libel and slander action where the litigant seeking to
overcome the journalists’ privilege had not sufficiently established that there was no
other reasonable means of discovering the identify of the confidential source. However,
the court found that the plaintiff had adequately demonstrated that the identity of the
source was necessary to the proper presentation of the case. Id. at 1346. In so doing,
the Court cited to Miller II and concluded that knowledge of the identity of the informant
was not only necessary to the proper preparation and presentation of the case but was
vital to the case because the only way to determine recklessness for purposes of
establishing malice was to examine the reliability of that informant. Id. at 1345.
9
Ultimately, the Fifth Circuit determine that Plaintiff had failed to establish a
prima facie case of liability, and therefore the request to compel a disclosure related to
punitive damages was premature. It is interesting to now that in Selcraig, the reporter
provided certain testimony, only refusing to identify the confidential source. 705 F.2d at
794.
15
Thus, based on the foregoing cases, there is no indication that the Eleventh
Circuit’s test in Caporale requires that a party seeking to overcome the journalists’
privilege establish that the information sought is absolutely critical to a claim or defense
but only that the party seeking to overcome the privilege has a compelling reason for
seeking the information. Those cases where the reviewing courts concluded that the
party seeking to overcome the privilege had established that without the information
sought its claims would fail were libel or libel-like cases where the identity of the
informant was not known, and therefore the party was unable to mount a defense or
prove a claim in that action. It does not follow however, that the “necessary to the
proper presentation of the case” requirement can only be met in those situations.
In fact, the undersigned has not found, and the Parties have not cited a case
where a court in this circuit has upheld the journalists’ privilege where it has been
determined that there are no other sources available to the party for the information
sought and that the information sought is highly relevant. Rather, in all of the cases
cited by NBC, the court simultaneously found that the person seeking to overcome the
privilege failed to demonstrate that the materials were not available from another source
or the information was highly relevant to the litigation. See United States v. Fountain
View Apartments, No. 6:08-CV-891-Or-35DAB, 2009 WL 1905046, at *1, *4 (M.D. Fla. July 1,
2009) (finding reporter’s privilege not overcome by party seeking out-takes of interviews
of parties by reporters in housing discrimination law suit where no showing that persons
in out-takes were not available to testify and no showing that their recollections were
impaired or otherwise unreliable); Anguillula v. Collier County, No. 2:08-CV-606-F.M.-99SPC, 2009 WL 37623857 (M.D. Fla. June 18, 2009) (holding journalist’s privilege not
overcome where no evidence that information could not be obtained from another
source); McCray v. Beary, No. 97-1553-CIV-OR-18A, 1999 WL 1027042 *1 (M.D. Fla. Feb.
12, 1999) (holding that reporter’s privilege not overcome because not highly relevant and
16
not necessary to proper presentation of defendant’s case where substance of plaintiff’s
statements to reporter were already a matter of record through plaintiff’s deposition
testimony).
To be clear, the undersigned agrees that if the Defendants were merely seeking to
obtain the testimony for impeachment purposes, the second prong of the inquiry would
not be met as courts have held that attacking a witness’ credibility does not rise to the
level of “compelling and overriding” necessity required to overcome the privilege. See
e.g., Shoen v. Shoen, 48 F.3d 412 (9th Cir. 1995); In re Subpoena to Goldberg, 693 F.
Supp. 2d 81 (D.D.C. 2010). However, in this case, the Defendant seeks testimony not
merely for impeachment purposes but as a substantive admission by the Plaintiff for
purposes of establishing the very facts central to the resolution of this matter. Thus,
although the undersigned recognizes that in the Eleventh Circuit it is a rare case in which
a litigant will be able to overcome the journalistic privilege, even where the testimony
sought relates to non-confidential, published material, the unique facts in this case
warrant that the journalistic privilege yield to the Defendant’s request for highly relevant
testimony that is necessary for the proper presentation of his case.
The undersigned does not suggest that the standard applied by the Eleventh
Circuit should be, or has been lowered when applied to non-confidential sources and/or
previously published materials, rather, the Court merely suggests that the Eleventh
Circuit test as applied, without distinction as to both confidential and non-confidential
information, balances the interests and does not require the party seeking disclosure to
demonstrate that it cannot prove its case without the requested information, only that it
has a compelling need for the information where the court determines that the
information is both highly relevant and where other sources for the information are not
available. Such is the case here.
17
As discussed above, the central issue in this case is whether Officer Perez’s
actions were justified when he shot Gregory. As there are no eyewitnesses to the
shooting other than Officer Perez and Gregory, the testimony of Gregory and Perez is
critical to determining the events surrounding the shooting and what Officer Perez
observed just prior to the shooting. Because Gregory has denied that he reached to
adjust the bat immediately prior to the shooting, and has denied that he made statements
regarding adjusting the bat to anyone, the testimony of the NBC reporter takes on
heightened significance and is necessary for the proper presentation of the case. If the
testimony of the reporter is not permitted, the trier of fact may be deprived of the
opportunity to consider an admission by the Plaintiff regarding the facts surrounding the
shooting. Under other circumstances, statements purportedly made by Gregory to a
reporter might not provide a compelling need for the reporter’s testimony, but under the
unique set of facts presented in this case the Defendant’s compelling need for the
testimony has been established.10
In this regard, this case is much like NLRB v. Mortensen, 701 F. Supp. 244 (D.D.C.
1988). In Mortensen, three journalists had written articles related to a well-publicized
labor dispute wherein statements were attributed to certain individuals on the
Management Council, each of whom denied or refused to confirm the quoted statements.
Id. The court in Mortensen found that the statements attributed to the Council members
were central to issues in the case and determined that without the authentication of the
statements, the NLRB would not have a fair opportunity to prove that the Council
engaged in unfair labor activities. Id. The court therefore compelled the reporters to
10
To the extent the Defendant argues that the very nature of a § 1983 civil rights
action requires that the reporter’s privilege yield in this case, the Court rejects that
argument and concludes that it is the unique circumstances of this particular case the
provide a compelling need to overcome the privilege, rather than the nature of the action.
See Loadholtz v. Fields, 389 F. Supp., at 1301 (rejecting blanket rule that journalist’s
privilege yields in cases involving civil rights claims).
18
testify as to whether the statements they attributed had, in fact, been made. Id. at 250.11
Accord United States v. Foote, Case 00-CR-20091-01-KHV, 2002 WL 1822407, at *1
(denying motion to quash subpoena issued by the Government to a newspaper related to
a series of articles wherein the defendant purportedly made statements related to the
allegations of counterfeit merchandise.)12
Further, to the extent that other courts in this district have found that the
journalistic privilege has not been overcome because the party seeking the protected
information failed to establish that the information was highly relevant and necessary to
the proper presentation of the case, this case is distinguishable. Specifically, unlike the
statements in United States v. Thompson, No. 14-20522-CR, 2015 WL 1608462 *3 (S.D.
Fla. April 10, 2015), which the court found to be highly speculative and conjectural, the
statements purportedly made by the Plaintiff to Mr. Shepard in this case are not
speculative but have been described in detail in the video taped report of the interview of
Gregory.
Simply put, the Defendant has clearly and convincingly demonstrated a
compelling need for the reporter’s testimony regarding the statements related to
11
The Court in Mortensen applied the test three-part balancing test from the Third
Circuit to determine whether the reporter’s privilege could be overcome, as follows: 1)
whether the party seeking to override the privilege demonstrated that he has made an
effort to obtain the information from other sources; 2) whether the moving party
demonstrated that the only access to the information sought was through the journalist
and her source, and 3) whether the moving party has persuaded the court that the
information sought was crucial to the claim. Id. at 248 (citing Untied States v. Criden, 633
F. 2d 346, 358-59 (3rd Cir. 1980)).
12
In Foote, the trial court applied the following test in determining whether the
journalists’ privilege has been overcome: (1) whether the party seeking information has
independently attempted to obtain the information elsewhere and has been
unsuccessful; (2) whether the information goes to the heart of the matter; (3) whether the
information is of certain relevance; and (4) the type of controversy. Foote, at *2 citing
Silkwood v. Kerr–McGee Corp., 563 F.2d 433 (10th Cir. 1977) (citing Branzburg v. Hayes,
408 U.S. 665 (1972)).
19
Gregory’s actions just prior to the shooting, and thus the testimony is necessary to the
proper presentation of this case.
3. The information sought is unavailable from another source
Finally, the third Caporale prong for overcoming the journalists’ privilege requires
that the Defendant demonstrate that the information sought is not available from other
sources. United States v. Capers, 708 F. 3d 1286 (11th Cir. 2013) (affirming trial court’s
decision to quash a subpoena issued by a defendant to a news organization seeking
production of a criminal defendant’s interview with the police where even assuming
information was highly relevant to the defendant’s defense, the defendant failed to
establish that the materials were unavailable from another source); Price v. Time, Inc.,
416 F. 3d 1327 (11th Cir. 2005) (same). At the hearing, NBC argued there are other ways
for the Defendant to obtain the information regarding Sebastian Gregory’s actions just
prior to the shooting including from Gregory and the Defendant Officer. In addition, as to
the statements purportedly made by Gregory, NBC argued that the Defendant never
asked other witnesses who were present during the interview if they heard what Gregory
said to the reporter. On this point, NBC argued that the video demonstrates that there
were alternate sources present, including Gregory’s parents, siblings and former
attorney, when Gregory made the statements at issue. Finally, NBC contends that the
expert report regarding Plaintiff’s injuries issued by Dr. Lew is sufficient to dispute
Gregory’s version of the facts given in his deposition, and thus maintains that Mr.
Shepard’s testimony is not necessary.
The Defendants countered that because the incident involved only two people, i.e.
a “one on one” incident, there are no other eyewitnesses who can provide testimony
regarding the events just prior to the shooting. As to NBC’s contention that the
information regarding Sebastian Gregory’s statements to Willard Shepard is available
from other sources, the Defendant contended that he had propounded an Interrogatory
20
to Sebastian Gregory, asked Sebastian Gregory’s parents, and sent out investigator and
took depositions in an effort to secure alternative sources for the statements purportedly
made by Gregory regarding his movements before the shooting. In addition, the
Defendant established that he had attempted to obtain the same or similar statements
made by Gregory through discovery of Gregory’s emails, text messages and social
media. The Defendant represented that none of those efforts were fruitful, and this
assertion was not disputed.13 Finally, the Defendant emphasized that in his deposition,
Gregory denied that he made such statements to Mr. Shepard, and thus the Defendant
does not have any other sources to confirm that such statements were made other than
Mr. Shepard. Moreover, at the hearing, when the Plaintiff’s former attorney was
questioned regarding the circumstances of the interview and what Gregory said at that
interview, former counsel could not recall what statements were made by Gregory, if any,
regarding the movement of the bat prior to the shooting.14
Under these circumstances, the Court concludes that the Defendant has
established that he is unable to obtain the information regarding Gregory’s statements
purportedly made to Mr. Shepard which recount the events leading up to the shooting
from other sources. In addition, the Court notes that in this case, it appears that the
Defendant has exhausted all other available avenues to obtain facts to establish
Gregory’s actions just prior to the shooting. As to NBC’s contention that Dr. Lew’s
13
To the extent that Plaintiff might have sent emails regarding his actions, the
undersigned notes that Plaintiff’s deletion of emails deprived Defendant of the
opportunity to view them.
14
Plaintiff’s prior attorney, Mr. Della Ferra, was present at the Plaintiffs’ home
when the interview with Willard Shepard was conducted. Upon agreement by NBC and
the Defendant who were both present at the hearing, Mr. Della Ferra was contacted by the
Court and the audio of the interview was played to refresh attorney’s recollection. The
Attorney confirmed that he did not recall what statements were made by Sebastian
Gregory during the interview with Willard Shepard. Mr. Della Ferra also stated that at one
point during the interview, Plaintiff’s younger siblings came home from school.
21
report provides the information sought by the Defendant, the Court finds this contention
without merit. There is nothing in Dr. Lew’s report that demonstrates whether Gregory
reached to adjust the bat just prior to the shooting, ECF No. [154-7].
The undersigned therefore concludes that the Defendant has clearly and
convincingly demonstrated that the testimony sought is not available from other
sources, and thus has satisfied the third Caporale factor.
Accordingly, the undersigned has determined that the Defendant has satisfied all
three Caporale factors, and the journalists’ privilege must yield under the facts of this
case. The Defendant is therefore entitled to obtain the testimony he seeks from the
reporter. However, the undersigned recognizes that various courts have expressed
concerns about the need to limit the extent to which overriding the privilege encumber’s
the ability of a reporter to perform his First Amendment news gathering function. See e.g.
NLRB v. Mortensen, 701 F. Supp. 244, 250 (D.D.C. 1988). With that concern in mind, the
undersigned concludes that the Defendant has only overcome the privilege to the extent
that the reporter’s testimony will provide verification of the statements made by Gregory
regarding his actions immediately before the shooting related to adjusting the bat.
Therefore, the deposition of Mr. Shepard will be limited in scope and duration.
IV.
CONCLUSION
Accordingly, based on the foregoing, it is hereby:
ORDERED AND ADJUDGED that Nonparties NBC and Willard Shepard’s Motion
to Quash February 2015 Subpoena Duces Tecum for Deposition and for Protective Order,
ECF No. [118], is DENIED. NBC and Willard Shepard are directed to comply with the
Subpoena Duces Tecum issued on or about February 21, 2015 by the Defendants. It is
further
22
ORDERED AND ADJUDGED that on or before June 5, 2015, Willard Shepard
shall appear for a deposition that will be limited to the questions regarding statements
made to him by Sebastian Gregory on or about January 14, 2014 related to the shooting
incident that occurred on May 28, 2012. The deposition shall not exceed two hours with
a maximum of one hour of questioning by the Defendant and one hour of questioning by
the Plaintiffs. If NBC desires to question Mr. Shepard at the deposition, it may do so with
no time limitation.
DONE AND ORDERED in Chambers in Miami-Dade County, Florida, this 28th day
of May, 2015.
_________________________
ANDREA M. SIMONTON
UNITED STATES MAGISTRATE JUDGE
Copies furnished via CM/ECF to:
The Honorable Donald L. Graham,
United States District Judge
All counsel of record
23
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