The opinion of the court was delivered by: GESELL
In this civil action plaintiff, a widely syndicated columnist, has sued for substantial damages nineteen individuals
identified in the recent Watergate disclosures, alleging a conspiracy to deprive him of his rights as a journalist under the First, Fourth, and Ninth Amendments to the Constitution. In the course of his pretrial deposition plaintiff refused to disclose the names of certain sources who supplied him with information relating to particular overt acts alleged. Defendants then joined in motions to compel, requesting sanctions under Rule 37 of the Federal Rules of Civil Procedure. The motions were fully briefed and argued. Since the issues raised are somewhat novel and may prove decisive in the litigation, the procedural context in which the motions arise will first be explicated.
The complaint was originally filed in September 1976, requesting a jury trial. In its present form it alleges a conspiracy beginning in 1969 and operating until sometime in 1974 by former high officials and their associates to harass plaintiff because of his writings. As a result of this conspiracy, plaintiff claims, his ability to gather and report news was injured by the reluctance of sources to provide information. Various overt acts are alleged, all of which plaintiff was aware. It is asserted, however, that defendants "intentionally and fraudulently concealed" the conspiracy itself and that "plaintiff did not discover and with due diligence could not have discovered the existence of said conspiracy prior to February 19, 1974."
In due course motions to dismiss were filed by the individual defendants.
A prominent feature of these motions is the contention that the action is barred by the three-year statute of limitations. All overt acts save one (an audit of plaintiff's tax returns which by discovery was shown conclusively to have been purely a random audit based on plaintiff's social security number and other objective factors) occurred over three years prior to suit, and plaintiff's column indicated considerable early knowledge of what he now alleges was concealed. Thus the issue of fraudulent concealment has been brought into sharp focus in the context of the statute of limitations defense.
At plaintiff's suggestion the motions to dismiss were held in abeyance to allow for discovery. After it developed that plaintiff's interrogatories to defendants were unsatisfactory, the Court directed that discovery be by deposition. Plaintiff completed a number of depositions, and more are scheduled. By agreement, plaintiff's deposition was scheduled to be completed before those of several principals, including former President Nixon and Mr. H. R. Haldeman. During his deposition plaintiff stated in response to specific questions that he was unwilling to reveal the names of certain sources, i.e., individuals from whom he had received information about one or more overt acts during the period in which plaintiff contends the conspiracy, although unknown to him, was taking place. The deposition was adjourned midstream and defendants moved to compel.
The nature of the inquiries and refusals are set out in defendant Nixon's motion to compel answers and are supported by the transcript of plaintiff's deposition on file in this case. Only two refusals are presently of concern to the court:
(2) Paragraph 10 of the complaint alleges that a Special Investigation Unit known as "the Plumbers," of which several defendants were allegedly members, was ordered by other defendants to investigate plaintiff and others concerning plaintiff's article indicating the Nixon Administration's support of Pakistan. In the course of this investigation, the complaint alleges, defendants placed illegal electronic surveillance on plaintiff, a Navy enlisted man named Radford, and others. When questioned, plaintiff stated repeatedly that he would not discuss in any way "the source of the India-Pakistan leak," whether he questioned Radford about his activities, or the source of any information he "might have gotten in connection with it." Plaintiff stated, "I made an agreement not to, and I will keep that agreement."
These two inquiries lie at the heart of the lawsuit. The first concerns basic instructions by a major defendant to implement an investigation of plaintiff. The second involves a breach of security suspected in the "tilt" toward Pakistan incident which plaintiff has investigated at length in his depositions and which raises directly the question whether surveillance of plaintiff, if any, was to squelch his journalism or to ferret out a security leak. Development of plaintiff's information in these areas is vital before principals on the West Coast are deposed. It relates both to the merits as well as damages and is equally vital to a determination whether or not in fact the conspiracy was fraudulently concealed so as to toll the statute of limitations.
Plaintiff makes two basic contentions in support of his position. First, he claims his newsman's privilege, as guaranteed by the First Amendment and other provisions of the Constitution entitles him to protect his sources at least until all possible alternative means for ascertaining his sources have been exhausted and shown to be unproductive. Second, he urges that the information, even if relevant, will not be necessary because plaintiff himself is prevented from using it by reason of his claim of privilege and that in effect only plaintiff will suffer.
Defendants assert their right to develop facts that will enable them to establish their affirmative statute of limitations defense and to defend, if necessary, on the merits. The inquiry will provide leads and may benefit the interests of particular defendants over others, since involvement varies substantially. They contend that plaintiff has waived his personal privilege to withhold sources by bringing this action and that the necessities of the case as a matter of law justify breaching plaintiff's qualified privilege.
In this case of first impression, inquiry starts with certain well-established premises. "Official harassment of the press undertaken not for the purposes of law enforcement but to disrupt a reporter's relationship with his news sources" has no justification. Branzburg v. Hayes, 408 U.S. 665, 707, 92 S. Ct. 2646, 2670, 33 L. Ed. 2d 626 (1972). The newsman's privilege is a "fundamental personal right" well founded in the First Amendment. Lovell v. Griffin, 303 U.S. 444, 450, 58 S. Ct. 666, 82 L. Ed. 949 (1938). Although the public interest in a fully informed press provides its basis, the privilege "is that of the reporter not the informant" or the public, as plaintiff claims. Branzburg v. Hayes, 408 U.S. at 695, 92 S. Ct. at 2664. Generally speaking, the privilege protects the newsman from disclosing sources. But the privilege is a qualified one: where sources have relevant information that the interests of justice require be disclosed, and the need is compelling, an obligation may be placed on the newsman to reveal sources in spite of an implied or actual prior pledge of confidentiality. See id.; Carey v. Hume, 160 U.S.App.D.C. 365, 492 F.2d 631, cert. dismissed, 417 U.S. 938, 94 S. Ct. 2654, 41 L. Ed. 2d 661 (1974). This is such a case.
Here the newsman is not being obliged to disclose his sources. Plaintiff's pledge of confidentiality would have remained unchallenged had he not invoked the aid of the Court seeking compensatory and punitive damages based on his claim of conspiracy. Plaintiff is attempting to use the First Amendment simultaneously as a sword and a shield. He believes he was wronged by a conspiracy that sought to retaliate against his sources and to undermine his reliability and professional standing before the public because what he said was unpopular with the conspirators. But when those he accuses seek to defend by attempting to discover who his sources were, so that they may find out what the sources knew, their version of what they told him, and how they were hurt, plaintiff says this ...