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DOWD v. CALABRESE

October 26, 1983

JOHN M. DOWD, Plaintiff,
v.
SAMUEL RAY CALABRESE, Defendant; WILLIAM M. KRAMER, Plaintiff, v. SAMUEL RAY CALABRESE, Defendant; WILLIAM M. KRAMER, Plaintiff, v. JAMES A. DRINKHALL, et al., Defendants; JOHN D. DOWD, Plaintiff, v. JAMES A. DRINKHALL, et al., Defendant; JAMES A. DRINKHALL, Plaintiff, v. WILLIAM M. KRAMER, Defendant



The opinion of the court was delivered by: GREENE

These consolidated defamation actions arise out of two articles written by one Jim Drinkhall and published in the Wall Street Journal in April and December 1979. The first, "Ordeal at McNeil: Federal Lawmen Plan an Unpleasant Future for Sam Ray Calabrese," described the alleged plans of plaintiff William Kramer, a San Francisco-based member of the Department of Justice's Organized Crime Strike Force, to pressure a federal prisoner into providing evidence to the government about a supposed "underworld" associate. The reader is given some details of the plan to pressure Calabrese in what purport to be Kramer's own words; *fn1" other statements about Calabrese's usefulness as a government informant are attributed to plaintiff John Dowd, then a strike force attorney based in Washington, D.C. *fn2" The second article, "A Reporter's Tale: Aftermath of Article on U.S. Prosecutors," reports that Kramer "set out to prove that I took a bribe from the mob to do the [first] story." The article recites how journalistic colleagues of Drinkhall and others were asked for derogatory information about him and how a rumor was circulated that he had written the first article because he was on the payroll of organized crime.

 As part of their discovery against the media defendants *fn3" Dowd and Kramer deposed Drinkhall on several occasions seeking, inter alia, the names of confidential sources with whom Drinkhall claims to have talked during preparation of the articles. When Drinkhall declined to produce the names, instead invoking the reporter's privilege grounded in the First Amendment, plaintiffs filed the instant motion seeking an order compelling Drinkhall to name the individuals or to admit that he had no sources *fn4" -- the alleged fabrication of the sources being plaintiffs' theory of the case.

 Drinkhall has insisted that his off-the-record sources do exist, and that, in fact, there were eleven such sources who provided pieces of information *fn5" for either the first or second article. All of them, however, are claimed to have provided their information with the understanding that their identities would not be revealed by Drinkhall. Accompanying defendants' post-argument memorandum was an affidavit by Drinkhall identifying an FBI agent -- labelled "A" by the parties -- as one of the eleven sources. *fn6" Drinkhall has refused to identify the remaining ten individuals. The Court must therefore determine whether Drinkhall has properly invoked the privilege with respect to these ten sources, or whether the privilege must yield to plaintiffs' discovery needs.

 I

 The Court of Appeals for this Circuit first recognized a qualified reporter's privilege under the First Amendment in Carey v. Hume, 160 U.S. App. D.C. 365, 492 F.2d 631 (D.C. Cir. 1974). In Carey, also a libel case, a disclosure order was upheld after the court "weighed the need for the testimony in question against the claim of the newsman that the public's right to know is impaired." 492 F.2d at 636. The court made it clear that such a balancing is to be undertaken on a case-by-case basis and, on the facts in Carey, it determined that since confidential sources had been the only basis for the article in question, disclosure of the sources' identities was "critical" to plaintiff's claim. 492 F.2d at 636, 637.

 The Court of Appeals considered the privilege more recently in Zerilli v. Smith, 211 U.S. App. D.C. 116, 656 F.2d 705 (D.C. Cir. 1981), a privacy action. The Zerilli decision left the Carey standards intact, stating that

 
the civil litigant's interest in disclosure should yield to the journalist's privilege . . . in all but the most exceptional cases.

 656 F.2d at 712. The Zerilli court also offered more detailed guidance on how lower courts are to apply the Carey standards. See also, Tavoulareas v. Piro, 93 F.R.D. 11 (D.D.C. 1981); Tavoulareas v. Piro, 93 F.R.D. 35; Liberty Lobby, Inc. v. Anderson, 96 F.R.D. 10 (D.D.C. 1982).

 Carey and Zerilli teach that relevance of the sources' identities to plaintiffs' case, particularly to their burden of proof, and the availability of unexhausted, alternative means of obtaining the sources' identities are the primary factors to be considered in evaluating whether a reporter's claim of privilege should be overridden. *fn7" First, a high degree of relevance is required: the sources' identities must go to "the heart of plaintiff's claim." Carey v. Hume, supra, 492 F.2d at 634, 636, quoting Garland v. Torre, 259 F.2d 545 (2d Cir. 1958). Second, "even when the information is crucial to a litigant's case, reporters should be compelled to disclose their sources only after the litigant has shown that he has exhausted every reasonable alternative source of information." Zerilli v. Smith, supra, 656 F.2d at 713. Third, where the journalist is a defendant in a libel action and the privilege "will effectively shield him from liability, the equities weigh somewhat more heavily in favor of disclosure." Zerilli v. Smith, supra, 656 F.2d at 714.

 II

 Plaintiffs contend that they need the sources' identities for two purposes: to prove that the allegedly defamatory assertions of fact in the stories are false, and to undermine Drinkhall's credibility. Plaintiffs' theory is that Drinkhall fabricated the statements attributed to Dowd and Kramer in the articles and that the unnamed individuals who, according to Drinkhall, confirmed what Dowd and Kramer said either never spoke to him about the stories or were misquoted. *fn8"

 The sources whose identities are sought fall into several categories. In the first group are two government attorneys with whom Drinkhall allegedly spoke prior to the publication of the first article but who furnished no material actually relied or reported on. *fn9" If the Court were to order disclosure of these sources, and if Drinkhall were to respond by offering two names, it is plaintiffs' hope or expectation that the individuals so named could be deposed and would contradict Drinkhall's version of their conversations, if conversations had occurred at all. These speculations are an insufficient basis for compelled disclosure.

 Even if plaintiffs' forecast proved to be accurate, the testimony of the two individuals would provide no information concerning the truth or falsity of the information contained in the articles, nor would it be material to the question of defendants' actual malice -- that is, whether they knew that there was no plan to pressure Calabrese or recklessly disregarded whether this assertion was true or false -- or of their negligence. *fn10" Rather, the testimony of these two sources would relate solely to Drinkhall's credibility on collateral matters. To be sure, Drinkhall's credibility is an important issue in the case, but his credibility with respect to two conversations not part of his newsgathering for the articles is far from "the heart of plaintiffs' claim." In addition, as the pleadings and affidavits indicate, Dowd and Kramer have many alternative sources of evidence bearing on Drinkhall's credibility. *fn11" ...


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