Salazar v. Phoenix, City of ( 2021 )

1 WO 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE DISTRICT OF ARIZONA 9 10 Frances Salazar, No. CV-19-01188-PHX-SRB (ESW) 11 Plaintiff, ORDER 12 v. 13 City of Phoenix, et al., 14 Defendants. 15 16 17 18 The Court has reviewed City Defendants’1 “Motion to Compel Scripps Media, Inc. 19 to Respond to Subpoena” (Doc. 163), Scripps Media, Inc.’s (“Scripps”) Response (Doc. 20 177), City Defendants’ Reply (Doc. 183), and Scripps’ Sur-Reply (Doc. 190). City 21 Defendants seek copies of ABC15’s unedited video and audio recordings of interviews of 22 Plaintiff and two of her attorneys that ABC15 conducted in connection with investigative 23 news reports. 24 Journalists have a qualified privilege against compelled disclosure of information 25 and records gathered in the course of their reporting. The seminal Ninth Circuit cases on 26 the issue of the federal journalist’s privilege are Shoen v. Shoen, 5 F.3d 1289 (9th Cir. 27 28 1 City Defendants include Defendants City of Phoenix, Jeri Williams, Joseph Yahner, and Anthony Armour. 1 1993) (“Schoen I”) and Shoen v. Shoen, 48 F.3d 412 (9th Cir. 1995) (“Shoen II”). In Shoen 2 I, the Ninth Circuit explained: Rooted in the First Amendment, the privilege is a recognition 3 that society’s interest in protecting the integrity of the 4 newsgathering process, and in ensuring the free flow of 5 information to the public, is an interest “‘of sufficient social importance to justify some incidental sacrifice of sources of 6 facts needed in the administration of justice.’” Herbert v. 7 Lando, 441 U.S. 153, 183, 99 S.Ct. 1635, 60 L.Ed.2d 115 (1979) (Brennan, J., dissenting) (quoting McCormick on 8 Evidence 152 (2d ed. 1972)). 9 Shoen I, 5 F.2d at 1292. The journalist’s privilege is qualified and not absolute. “[T]he 10 process of deciding whether the privilege is overcome requires that ‘the claimed First 11 Amendment privilege and the opposing need for disclosure be judicially weighed in light 12 of the surrounding facts, and a balance struck to determine where lies the paramount 13 interest.’” Id. at 1292-93 (quoting Farr, 522 F.2d at 468). The Ninth Circuit in Shoen II 14 held that 15 [W]here information sought is not confidential, a civil litigant is entitled to requested discovery notwithstanding a valid 16 assertion of the journalist’s privilege by a nonparty only upon 17 a showing that the requested material is: (1) unavailable despite 18 exhaustion of all reasonable alternative sources; (2) noncumulative; and (3) clearly relevant to an important issue 19 in the case. We note that there must be a showing of actual 20 relevance; a showing of potential relevance will not suffice. 21 Shoen II, 48 F.3d at 416. 22 After reviewing City Defendants and Scripps’ briefing, the Court finds that City 23 Defendants have not satisfied the requirements necessary to overcome the journalist’s 24 privilege. 25 Accordingly, 26 IT IS ORDERED denying City Defendants’ “Motion to Compel Scripps Media, 27 Inc. to Respond to Subpoena” (Doc. 163). 28 1 IT IS FURTHER ORDERED denying Scripps’ request for attorneys’ fees.” 2 Dated this 18th day of November, 2021. . 3 . Lett Honorable Eileen S. Willett 5 United States Magistrate Judge 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 ? The Court will not order sanctions “when it finds that a position was substantially 25 justified in that the parties had a genuine dispute on matters on which reasonable □□□□□ could differ as to the appropriate outcome.” Roberts v. Clark County School District, 312 26 F.R.D. 594, 609 (D. Nev. 2016); see also Pierce v. Underwood, 487 U.S. 552, 565 (1988) (stating that “the test for avoiding the imposition of attorney’s fees for resisting discovery 271) in district court is whether the resistance was substantially justified. To our knowledge, that has never been described as meaning justified to a high degree, but rather has been said to be satisfied if there is a genuine dispute, or if reasonable people could differ” as to the appropriateness of the contested action) _3-