inewsource’s response to Cory Briggs subpoena

On April 13, environmental attorney Cory Briggs subpoenaed inewsource’s Executive Director, Lorie Hearn, over a statement the San Diego City Attorney made in one of inewsource’s stories about Briggs’ personal and professional partner, Sarichia Cacciatore. The stories found evidence of a potential conflict of interest in that she worked as an environmental biologist for a city-contracted company whose work he has sued over multiple times. In at least two instances, Briggs sued directly over Cacciatore’s work.

See all stories published in this investigation by clicking here.

See all stories published in this investigation by clicking here.

In addition, inewsource learned Cacciatore was vice president of Briggs Law Corp. during her time at Helix Environmental Planning after the San Diego City Attorney’s office released a memo about it in response to an inewsource records request. The next week, Cacciatore’s lawyer, Marco Gonzalez, released a sealed deposition in which she stated her involvement in the firm. In March, Helix agreed to reimburse the city of San Diego $143,000 — in part  for attorneys fees the city paid to Briggs and other counsel to settle a lawsuit Briggs had filed.

The Briggs subpoena seeks to question Hearn about a statement City Attorney Jan Goldsmith made during an inewsource interview on Feb. 25 with reporters Brad Racino and Brooke Williams.

Goldsmith made the following statement to inewsource about Cacciatore’s role as vice president of Briggs’ law firm:

“It was stated by Cory Briggs as a fact… and we have verified that.”

You can read the relevant portion of the subpoena below, or see the full document by clicking here. It is followed by inewsource’s legal response which was served on Briggs’ legal assistant, Keri Taylor, Monday afternoon.

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1. Each and every "writing" as defined by Evidence Code Section 250 that in any way tends to prove that Jan I. Goldsmith made the following statement as reported in that certain February 26,2015 article entitled "BRIGGS OPPOSES SAN DIEGO CITY ATTORNEY'S MOVE TO UNSEAL TRANSCRIPT" published by inewsource: "It was stated by Cory Briggs as a fact . . . and we have verified that." (A courtesy copy of the article is attached to this deposition subpoena as Exhibit "A.")

2. Each and every "writing" as defined by Evidence Code Section 250 that in any way tends to disprove that Jan I. Goldsmith made the following statement as reported in that certain February 26,2015 article entitled "BRIGGS OPPOSES SAN DIEGO CITY ATTORNEY'S MOVE TO UNSEAL TRANSCRIPT" published by inewsource: "It was stated by Cory Briggs as a fact . . . and we have verified that." (A courtesy copy of the article is attached to this deposition subpoena as Exhibit "A.")

DEPOSITION  SUBPOENA
Attachment 4

1. Any and all facts and evidence in any way tending to prove that Jan I. Goldsmith made the following statement as reported in that certain February 26, 2015 article entitled "BRIGGS OPPOSES SAN DIEGO CITY ATTORNEY'S MOVE TO UNSEAL TRANSCRIPT" published by inewsource: "It was stated by Cory Briggs as a fact . . . and we have verified that." (A courtesy copy of the article is attached to this deposition subpoena as Exhibit "A.")

2. Whether it is true that Jan!. Goldsmith made the following statement as reported in that certain February 26, 2015 article entitled "BRIGGS OPPOSES SAN DIEGO CITY ATTORNEY'S MOVE TO UNSEAL TRANSCRIPT" published by inewsource: "It was stated by Cory Briggs as a fact . . .and we have verified that." (A courtesy copy of the article is attached to this deposition subpoena as Exhibit "A.")

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Dear Mr. Briggs:

This letter responds to your subpoena (Subpoena) to Loretta Hearn of inewsource, a copy of which is attached to the objections to the Subpoena served herewith.  As set forth below, news reporter shield law protections are absolute in a civil case, such as your case referenced above, and Ms. Hearn is protected from compelled disclosure of the information sought by the Subpoena.

I have represented journalists throughout California in state and federal court for 30 years, and specifically regarding news reporter shield law issues, and explain below how California's news shield affords journalists  a constitutional immunity against contempt that cannot be pierced in a civil lawsuit, as well as how the First Amendment affords journalists  additional protection as a privilege.  For reasons set forth below, Ms. Hearn is entitled to the full protection of all journalist shield laws.  Please withdraw your subpoena no later than 5:00 on April 24, 2015 and notify me of its withdrawal.   If it is not withdrawn,  I will need to take appropriate legal action, and hereby reserve all of Ms. Hearn's rights to do so.

California's Immunity Against Contempt

For more than 30 years, California nonparty journalists  have been constitutionally  protected from being subpoenaed in civil cases and compelled to disclose any source or other unpublished information obtained in the process of newsgathering.  Article I, section 2, subdivisions (a) and (b) of California's Constitution and Evidence Code section 1070  (the Shield Immunity) allow journalists to refuse to testify about their sources and any unpublished information, except in the rare circumstance where a criminal defendant's federal fair trial guarantee compels disclosure.   (See Delaney v. Superior Court (1990) 50 Cal. 3d 785; Miller v. Superior Court (1999) 21 Cal. 4th 883; New York Times Co. v. Superior Court  (1990) 51 Cal. 3d-453.)   In 1980, the people of California, recognizing that journalists' function as a vital source of information to the public is weakened whenever their ability to gather news is impaired, specifically embodied this immunity in article I, section 2(b) of California's Constitution.   (Id.)

1990, in New York Times Co. v. Superior Court, 51 Cal. 3d 453, the Supreme Court made clear that the Shield Immunity is absolute in civil cases, holding that it "provides 'absolute protection to non-party journalists in civil litigation"' from being compelled to testify about sources and unpublished information. (Id. at 457.)

In 1999, the Supreme Court again reaffirmed the strength of the Shield Immunity in Miller v. Superior Court, 21 Cal. 4th 883, ruling that even a prosecutor's desire or need for evidence under article I, section 29 of the California Constitution in a criminal case could not overcome the Shield Immunity.

Therefore, the law is clear that the Shield Immunity is a constitutionally-based,  absolute immunity against compelled testimony from nonparty journalists  in civil cases.  As set forth below, and as other California courts held, the Shield Immunity applies to Loretta Hearn and inewsource, given that Plaintiff's Subpoena seeks information gathered in the course of newsgathering.

The Shield Immunity

The Shield Immunity provides in pertinent part:

A publisher, editor, reporter, or other person connected with or employed upon a newspaper, ... shall not be adjudged in contempt by a judicial ... body ... for refusing to disclose the source of any information procured while so connected or employed for publication in a newspaper,... or for refusing to disclose any unpublished information obtained or prepared in gathering, receiving or processing of information for communication to the public.

As used in this subdivision, 'unpublished information' includes information not disseminated to the public by the person from whom disclosure is sought, whether or not related information has been disseminated and includes, but is not limited to, all notes, outtakes, photographs, tapes or other data of whatever sort not itself disseminated to the public through a medium of communication, whether or not published information based upon or related to such material has been disseminated.

Ms. Hearn is a person "connected with" a newspaper pursuant to this language. The constitutional mandate of "shall not be adjudged in contempt" for refusing to testify about source information is clear and absolute on its face. Moreover, the legislative history preceding its adoption makes clear that judges do not have the power to dilute this protection. Before the enactment of article I, section 2, subdivision (b), Evidence Code section 1070 attempted to provide substantially the same protection. The explicit reason for enacting article I, section 2(b), however, was to respond to that series of cases decided under Evidence Code section 1070 which diluted its protection. (Delaney, 50 Cal. 3d at 802, fn. 13, citing Ballot Pamp., Proposed Amends. to Cal. Const., with arguments to voters, Primary Elec. [June 3, 1980 p. 19].) Courts are not free to balance the absolute Shield Immunity against any other interest in civil cases with regard to nonparty news reporters, and as a result, they cannot be compelled to testify to source (or any unpublished) information at all.

Cases Reaffirming The Breadth of The Shield Immunity

In Delaney v. Superior Court, 50 Cal. 3d 785, California's Supreme Court reaffirmed that article I, section 2, subdivision (b) provides the broadest of protection, and that article I, section 2, subdivision (b) protects a journalist from being adjudged in contempt for refusing to disclose either (1) unpublished information; or (2) the source of information whether published or unpublished.  (Delaney, 50 Cal. 3d at 797.)  The Supreme Court found the language of article I, section 2(b) "clear and unambiguous":

"[C]ourts, in construing the constitution, are bound to suppose that any inconveniences involved in the application of its provisions, according to their plain terms and import, were considered in its formation, and voluntarily accepted as less intolerable then those which are thereby avoided, or as fully compensated by countervailing  advantages."

(Id. at 814 [citation omitted].)

In fact, in New York Times Co. v. Superior Court, 51 Cal. 3d 453, wherein the Supreme Court reiterated that the Shield Immunity "provides 'absolute protection to non-party journalists in civil litigation"' from being compelled to testify about sources and unpublished information, the Court plainly stated:

This is a typical personal injury action for damages, in which a party seeks discovery of photographs taken by a nonparty newsperson in a public place.  On the facts of this case, we are not aware of any federal or state constitutional right of [the party seeking discovery] sufficient to overcome the News-Press's claim of immunity under the state shield law.

(Id. at 457, 462.)

In Playboy Enterprises, Inc. v. Superior Court, 154 Cal. App. 3d 14, 27-28 (2d Dist. 1984), the Court of Appeal also emphasized that the elevation of the shield law to constitutional status

"clearly manifest[s] the intent to afford newspersons the highest level of protection under state law.... It has long been acknowledged that our state Constitution is the highest expression of the will of the people acting in their sovereign capacity as to matters of state law. When the Constitution speaks plainly on a particular matter, it must be given effect as the paramount law of the state."

Plaintiffs Have No Constitutional Right That Can Trump The Shield Immunity

Plaintiff here has no federal or state constitutional right to trump the journalists' Shield Immunity. Further, I am unaware of any civil case in California where the Shield Immunity has been pierced.  The reason is clear.  As the Supreme Court stated in New York Times Co., 51 Cal.3d at 462, civil cases are substantially different from criminal cases like Delaney, 50 Cal.3d 785, in which "there was a need to balance a newsperson's interest against a criminal defendant's well established federal constitutional right to a fair trial."  Therefore, the only recognized exception to the Shield Immunity's absolute terms is when the shield law clearly and unmistakably conflicts with a defendant's federal constitutional right to a fair trial, and that exception is not implicated in this civil lawsuit.  ( Miller, 21 Cal. 4th at 891.)  Accordingly, Ms. Hearn cannot be compelled to provide any testimony or documents about the "sources" for their news story sought by the Subpoena, or any other unpublished information, which is the very information specifically sought by your Subpoena.

The First Amendment  Privilege

The federal  courts  have also  held that the  First Amendment   protects journalists  from  compelled disclosure  of their  confidential  sources  and other  information,  including the  Ninth Circuit Court  of Appeal.    These  courts  require a case-by-case  balancing  of   interests,  including the  First Amendment  interests Justice Powell made clear must be weighed.   (See Shoen v. Shoen ("Shoen II'?, 48 F.3d 412, 414-15 (9th Cir. 1995) (citing Shoen v, Shoen ("Shoen I '?. 5 F.3d 1289, 1292-93 (9th Cir.  1993) and Farr v. Pitchess, 522 F.2d 464, 467-68  (9th Cir.  1975), for the principle that  balancing is required);  United States v. Pretzinger,  542  F.2d 517, 520-21 (9th Cir. 1976) (per curiam);  Farr, 522 F.2d at 467-68 (9th Cir. 1975); Bursey  v. United States, 466 F.2d 1059,  1091 n. 2 (9th Cir.  1972).

In Shoen I, the Ninth Circuit reaffirmed the existence and need for a First Amendment-based privilege in "all judicial proceedings, civil and criminal alike." (5 F.3d at 1292 [citing Farr, 522 F.2d at 467 (which held that the "process of deciding whether the privilege is overcome requires that 'the claimed First Amendment privilege and the opposing need for disclosure be judicially weighed in light of the surrounding facts, and a balance struck to determine where lies the paramount interest."')].)

The Ninth Circuit uses a balancing test to decide motions to quash subpoenas seeking journalists' source information.  (See Shoen II, 48 F.3d at 415; Shoen I, 5 F.3d at 1292-93; Pretzinger, 542 F.2d at 520; Farr, 522 F.2d at 468; Bursey, 466 F.2d at 1091.)  In Shoen I, 48 F.3d at 415-16, the Court used three factors to require the requesting party to show that the material sought is (1) unavailable despite exhaustion of all reasonable alternative sources, (2) noncumulative, and (3) clearly relevant to an important issue in the case.  ( Id. at 416.)

Shoen !l's three factors is only the beginning of the analysis. As the Ninth Circuit has made clear, "[t]he test we adopt must ensure that compelled disclosure is the exception, not the rule." (Id. at 416.) As the Third Circuit also observed in recognizing a reporter's privilege:

The interrelationship between newsgathering, news dissemination and the need for a journalist to protect his or her source is too apparent to require belaboring.  A journalist's inability to protect the confidentiality of sources s/he must use will jeopardize the journalist's ability to obtain information on a confidential basis.

This in turn will seriously erode the essential role played by the press in the dissemination of information ... to the public.

(Riley v. City of Chester, 612 F.2d 708, 714 (3d Cir. 1979) (citations omitted).)

In short, confidentiality is essential for the reporters to sustain the relationships they need with sources and to obtain sensitive information from them. Without it, the press cannot effectively serve the public interests in keeping others informed.

Ms. Hearn is unaware of any showing Plaintiff could make to even attempt to overcome the First Amendment  privilege in this civil case, assuming arguendo Plaintiff could overcome the Shield Immunity, which the law is clear it cannot.  Accordingly, for the reasons set forth, Ms. Hearn is also entitled to First Amendment  protection in addition to the Shield Immunity, and declines to comply with the Subpoena for this reason as well.

Conclusion

The Subpoena seeks information obtained in the course of newsgathering and protected by strong California and federal protections afforded to journalists.   Ms. Hearn declines to comply with the Subpoena, and will not do so absent a valid court order.  She therefore reserves all of their legal rights regarding quashing the Subpoena, including to seek recovery of her attorneys' fees and costs.

Very truly yours,

Guylyn Cummins

for SHEPPARD. MULLIN, RICHTER & HAMPTON LLP

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We'll let you know when big things happen.

About Brad Racino:

Brad Racino is a senior reporter and assistant director at inewsource. To contact him with tips, suggestions or corrections, please email bradracino at inewsource dot org.
 
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