Bateman v. Summit Logistics Services Inc et al

Filing 80

ORDER GRANTING 68 Motion to Quash Subpoena. Ordered by Judge Marc Thomas Treadwell on 4/9/2013. (tlh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
ALVIN BATEMAN,
Plaintiff,
v.
SUMMIT LOGISTICS SERVICES, INC.,
LANDAIR TRANSPORT, INC., and
GREAT WEST CASUALTY CO.,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)

CIVIL ACTION NO. 5:11-CV-127(MTT)

ORDER
Before the Court is Non-Party Grant Blankenship’s Motion to Quash the
Subpoena seeking Blankenship’s deposition. (Doc. 68). For the following reasons, the
Motion is GRANTED.
Grant Blankenship, a staff photograph with The Telegraph, was assigned to
cover the accident that gives rise to this action. (Doc. 68 at 4). The Defendants
previously served a subpoena duces tecum on The Telegraph in September 2011,
requesting that the newspaper produce certified copies of photographs of the accident
scene and any news articles related to the subject accident. (Doc. 68-2). The
Telegraph responded by attaching a copy of the February 6, 2010, article and the
accompanying photograph published in The Telegraph’s online edition. (Doc. 68-3).
The Defendants now seek to “depose Grant Blankenship as relates to this initial
document request in an effort to determine his knowledge of the whereabouts of
additional photos, as well as his knowledge of the locations of the vehicles upon his
arrival at the scene, his observations of the damages sustained by vehicles, and the

content of the photographs taken, even if not preserved.” (Doc. 70 at 3). Blankenship
contends that the deposition the Defendants seek would require the “disclosure of
matters privileged under Georgia law,” specifically, the deposition would “violat[e] the
newsgathering privilege of O.C.G.A. § 24-5-508.” (Doc. 68 at 1-2). The Court agrees.
Georgia’s law of privilege controls in this case. “In a diversity action, therefore,
‘state law governs the privileged nature of materials sought in discovery.’” Tindall v.
H&S Homes, LLC, 2010 WL 4814371, * 1 (M.D. Ga.) (quoting In re Fink, 876 F.2d 84,
85 (11th Cir. 1989)). Georgia’s statutory news gathering privilege provides:
Any person, company, or other entity engaged in the gathering and
dissemination of news for the public through any newspaper, book,
magazine, radio or television broadcast, or electronic means shall have a
qualified privilege against disclosure of any information, document, or item
obtained or prepared in the gathering or dissemination of news in any
proceeding where the one asserting the privilege is not a party, unless it is
shown that this privilege has been waived or that what is sought:
(1) Is material and relevant;
(2) Cannot be reasonably obtained by alternative means; and
(3) Is necessary to the proper preparation of the case of a party
seeking the information, document, or item.
O.C.G.A. § 24-5-508.1 Georgia’s news gathering privilege extends “to protect against
the disclosure of any information obtained or prepared” in the gathering or
dissemination of news. In Re Paul, 270 Ga. 680, 686, 513 S.E.2d 219, 224 (1999).
Thus, if the Defendants wish to depose Blankenship, the Defendants must show that
Blankenship either waived the news gathering privilege or that the information sought
falls within the scope of the three-prong statutory exception to the privilege.
Here, the Defendants argue that Blankenship waived his privilege because The
Telegraph produced without objection the photograph and article published online in the
newspaper’s response to the Defendants’ subpoena. (Doc. 70 at 2-3). Blankenship

1
Section 24-5-508 was previously codified, in substantially similar form, at O.C.G.A. § 24-9-30.
-2-

responds, first, that The Telegraph, not Blankenship, responded to the subpoena
regarding materials sought by the Defendants. Thus, there can be no argument that
The Telegraph’s actions—responding to the subpoena with a previously published
article and photograph—constitute waiver of Blankenship’s news gathering privilege.
Further, Blankenship argues that even if The Telegraph’s actions were “construed as
the voluntary and intentional acts of Blankenship,” there still has been no waiver of the
news gathering privilege under these facts. (Doc. 79 at 4)
Though “waiver may occur when the news person publishes the confidential
information or voluntarily testifies,” “publication of part of the information gathered does
not waive the privilege as to all of the information gathered on the same subject matter.”
In Re Paul, 270 Ga. at 686, 513 S.E.2d at 224. If this conduct waived privilege it “would
chill the free flow of information to the public.” Id. (internal citation and quotations
omitted). Here, The Telegraph’s response to the Defendants’ subpoena duces tecum
provided the Defendants with copies of the published article and picture relating to the
accident. Even assuming that The Telegraph’s actions can be construed as acts of
Blankenship, The Telegraph’s disclosure of the published article and picture do not
constitute waiver. Disclosure of part of the information gathered does not waive
Blankenship’s news gathering privilege regarding all the information gathered on the
accident. Thus, Blankenship did not waive the news gathering privilege against
disclosure of additional pictures and information obtained in preparation of the news
article regarding the accident.
Because Blankenship did not waive his news gathering privilege, the remaining
exception to the privilege is the three-prong statutory exception. To overcome the news

-3-

gathering privilege based on the statutory exception, the Defendants would have to
show that the information they seek from Blankenship is material and relevant, cannot
reasonable obtained by alternative means, and is necessary to the proper preparation
of the case. O.C.G.A. § 24-5-508 (1)-(3). While the Defendants make no effort to
address, specifically, the three-prong statutory exception to the news gathering
privilege, they do argue that the information they seek from Blankenship is necessary to
rebut a potential spoliation charge. However, despite the Defendants’ contention, the
Court is not convinced that the information they seek from Blankenship is material and
relevant. The Defendants have not shown that the information could not reasonably be
obtained by alternative means. Further, though it relates to a possible spoliation
charge, it is unclear whether Blankenship’s testimony is necessary to the proper
preparation of the case. Thus, the Court finds that the information the Defendants seek
from Blankenship does not fall into the three-prong statutory exception to the news
gathering privilege.
Accordingly, the information and photographs the Defendants seek from
Blankenship are protected by the news gathering privilege, and Blankenship’s Motion to
Quash is GRANTED.
SO ORDERED, this 9th day of April, 2013.

S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT

-4-