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May 17, 1991


Appeals from the Superior Court of the District of Columbia; Hon. Richard A. Levie, Trial Judge

Steadman and Wagner, Associate Judges, and Kern, Senior Judge.

The opinion of the court was delivered by: Per Curiam

This is an expedited appeal from the trial court's order entered during the course of a civil trial now in progress adjudging appellant, a news reporter under subpoena as a witness, in civil contempt for refusing to answer certain questions put to her by counsel for the litigants. Also before us is the consolidated appeal from the trial court's memorandum opinion and order (the "Opinion") entered two days previously which denied the motion to quash the trial subpoena directed to appellant.

We attach a copy of that Opinion as an appendix. There, the trial court succinctly set forth the issue and its ruling: "The issue before the Court on this particular motion is whether Ms. Wheeler may be compelled to testify as to the identity of the person who provided her with information regarding an on-going police department investigation. In short, the answer is yes and the Motion to Quash will be denied." This Conclusion of the trial court is supported by the special facts of this case as found by the trial court and the law applicable thereto, and consequently the order of contempt as based upon that Conclusion is equally supported.


We briefly summarize the facts and procedural posture as set forth in the Opinion. In this regard, we reiterate the oft-stated limited nature of appellate review imposed by statute; namely, that trial court findings of fact are determinative, unless "plainly wrong or without evidence to support ." Frog, Inc. v. Dutch Inns of America, Inc., 488 A.2d 925, 928 (D.C. 1985), quoting D.C. Code § 17-305(a) (1981). *fn1 Appellant is a news reporter who in 1986 wrote several stories published in a local newspaper, which is also an appellant in this case, *fn2 about a significant police operation then directed at drug trafficking in this city. Once it took place, appellant reported that she had obtained a classified plan for such secret operation before its execution.

Appellant moved to quash a subpoena for trial, asserting that because newsgathering is the essence of a free press she had a constitutional right not to testify concerning her 1986 news story. She cited, inter alia, Zerilli v. Smith, 211 U.S. App. D.C. 116, 656 F.2d 705 (1981); Carey v. Hume, 160 U.S. App. D.C. 365, 492 F.2d 631, cert. denied, 417 U.S. 938, 94 S.Ct. 2654, 41 L.Ed.2d 661 (1974).

The trial court held a pre-trial hearing on appellant's assertion that she was constitutionally privileged not to appear and testify. Testimony under oath was presented at the hearing that before appellant's news stories were published by the newspaper employing her, she had disclosed to two different individuals, in no way connected with her employer, that her source for obtaining the classified information and document detailing the confidential police operation was the then Assistant Chief of Police, Isaac Fulwood.

Fulwood is now the Chief of Police of the Metropolitan Police Department in Washington, D.C., and also one of defendants in the on-going civil action presided over by the trial court. The gravamen of such action is the allegedly tortious conduct on the part of Fulwood and the other defendants subsequent to the 1986 police operation towards the plaintiffs who were among the various high-ranking police officers allegedly responsible for the lack of success of the police operation.

At the hearing on whether the trial court should quash the subpoena, each of the two individuals to whom appellant had made her disclosures in 1986 testified that she told him that she obtained detailed information about the confidential police operation from Chief Fulwood, and one of them testified that she told him that Fulwood had given her a copy of the operation handbook. Neither witness indicated in his testimony that appellant had imposed upon or extracted from him a promise or pledge to keep her disclosure confidential. One witness testified without contradiction that he initiated the call to the reporter and sought and obtained from her the identity of the source of her information. Having resolved all questions of credibility, the trial court found that appellant's disclosures of her sources were not part of her newsgathering or investigative function. The trial court also found that the reporter did not impose upon either of them a stricture to keep what she told them confidential.

The trial court refused to quash the subpoena commanding appellant to appear and testify, and ultimately directed appellant to answer certain questions propounded to her in the trial, on alternative grounds. First, the trial court concluded that appellant could not disclose in 1986 to others the identity of her source and then in 1991, being called as a witness in a court of law, claim the privilege not to identify her source. Second, the trial court applied the balancing test "between the civil litigant's interest in compelled disclosure and the public interest in protecting a newspaper's confidential sources," as set forth by our sister appellate court in the District of Columbia in Zerilli v. Smith, supra. There, the court noted that "the civil litigant's need for the information he seeks [must be] of central importance" and "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." Id., 211 U.S. App. D.C. at 123, 656 F.2d at 713.

In the view of the trial court here, as we interpret it, appellant's testimony that the Chief of Police was her source of obtaining the classified information and document detailing the confidential police operation was "of prime importance" to the plaintiffs' case against the Chief and the other defendants for their alleged wrongful treatment subsequent to the conduct of this less than successful operation in 1986. The trial court also concluded that there was no one other than appellant who could tell where the operation handbook came from or who was the source of the information that she conveyed to the two individuals.


Appellant forcefully attacks the trial court's ruling. Appellant asserts that the federal court of appeals in this jurisdiction expressly recognized in Zerilli v. Smith, supra, 211 U.S. App. D.C. at 122, 656 F.2d at 712, "the preferred position of the First Amendment and the importance of a vigorous press." Appellant also calls our attention to Branzburg v. Hayes, 408 U.S. 665, 92 S. Ct. 2646, 33 L. Ed. 2d 626 (1972), a much-cited judicial decision relating to the task of addressing the competing interests of affording full and fair judicial hearings to litigants and protecting the freedom of the press.

This appeal at this point does not present the occasion for a far-reaching examination of the existence and scope of the asserted constitutionally-founded privilege. As did the trial court, we postulate only for purposes of this appeal such a qualified privilege, as defined in Zerilli. *fn3 Our adjudication upon the facts and circumstances peculiar to this case is that appellant cannot choose to disclose to others in 1986 -- with no request for confidentiality and under circumstances which did not involve any newsgathering function -- that Fulwood was her source for the classified information detailing the confidential police operation, and then choose in 1991 -- as a witness in a judicial proceeding -- not to make this same disclosure. See Tofani v. State, 297 Md. 165, 465 A.2d 413 (1983); Las Vegas Sun v. Eighth Jud. Dist. Ct., 761 P.2d 849, 852-53 (Nev. 1988); Pinkard v. Johnson, 118 F.R.D. 517, 523 (M.D. Ala. 1987). Cf. Bruno & Stillman, Inc. v. Globe Newspaper Co., 633 F.2d 583, 597-98 (1st Cir. 1980). In short, what she chose to say to others out-of-court she cannot now refuse to repeat in court.

Appellant urges that where "the reporter has previously talked to others outside the courtroom" this court should not adopt what she terms "an automatic, all-or-nothing waiver rule." We do not do so by our decision in the instant case. We base our decision upon the particular facts and circumstances here rather than adopting an "all-or-nothing" rule on waiver. Appellant chose to reveal to others the identity of her source without imposing a stricture of confidentiality upon them in a situation not in pursuit of her investigation. Thus, having disclosed the information unconditionally, appellant cannot follow an "on-and-then-off" practice of maintaining the confidentiality of her source. *fn4

Appellant cites several cases for the proposition that the First Amendment newsgatherer's privilege applies even to non-confidential information. However, the great majority of those cases involved discovery requests for all of a reporter's notes and source material underlying a given story. *fn5 That type of broad request is far different from the narrow questions that we hold were properly propounded to appellant under the facts of this case. Once a newspaper reporter discloses the source under the circumstances presented here, the rationale for upholding any qualified privilege ceases. See Las Vegas Sun v. Eighth Jud. Dist. Ct., supra, 761 P.2d at 852-53.

Moreover, this appeal does not present the question whether the disclosure eliminates an invocation of the privilege in any and all circumstances. *fn6 As the trial court rightly observed, the disclosure bears directly upon the application of the postulated two-pronged balancing test. *fn7 The now non-confidential nature of the testimony sought could quite rightly be taken into account in consideration of the several factors at issue.

Thus, this special factual feature presented here provides significant support to the trial court's application of the two-pronged test. While appellant challenges the trial court's Conclusion as to the importance of her testimony in the context of this case, it is well-established that a trial court determination of the relevancy of proffered evidence, of which this Conclusion is simply a variant, is almost always deferred to, Roundtree v. United States, 581 A.2d 315, 328 (D.C. 1990), and we think much the same fact-specific analysis applies to a determination of the availability of alternate sources. In sum, we see no basis for upsetting the trial court's application of the Zerilli test here to inquiries with respect to previously disclosed information. *fn8


Appellant argues, more generally, that beyond issues of confidentiality of sources, "important First Amendment interests are at stake whenever a reporter is compelled to testify about the newsgathering process." Some thirty questions were propounded to appellant, *fn9 with respect to which she invoked the privilege and with respect to which the contempt order by its terms applied. *fn10

We deal at this point only with those questions relating to what the trial court defined, already quoted above, as the issue before it in its Opinion, upon which the contempt order was based and to which the prior disclosure related; viz., the source of the information. This was the core upon which ...

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