Wojcik v. Boston Herald, Inc. , 60 Mass. App. Ct. 510 ( 2004 )

Green, J.

Though no privilege allows a newspaper reporter to refuse a discovery request seeking the identity of the source of an allegedly libelous statement, we agree with the defendants that a judge of the Superior Court erred in ordering them to disclose the identities of the “confidential” sources who furnished information contributing to the published newspaper stories at issue in the present case.

Background. In 1999, the plaintiff Edward Wojcik was employed by the State Lottery Commission (Lottery) in its Fairhaven office. On August 30 of that year, he was suspended, pending an internal investigation, due to suspicion that he had stolen Lottery “scratch tickets” discovered missing, and had redeemed winning tickets he found among them. On September 21, Wojcik was fired. On various occasions during its investigatian, Lottery officials issued press releases explaining that it had suspended certain employees (whom it did not name publicly) “under investigation” for suspicion of stealing scratch tickets. It is undisputed that Wojcik was one of the suspended employees. At the time of Wojcik’s termination, the Lottery ascribed his termination to “failure to meet standards and for violating Lottery policies and procedures.” Wojcik’s termination was subsequently upheld in arbitration, but solely on the ground that, contrary to Lottery policy prohibiting employees from playing any Lottery games, he had played Lottery tickets (not that he had stolen them). Wojcik denies any involvement in stealing scratch tickets.

Beginning on September 3, 1999, and thereafter over the next several weeks, the defendant newspaper published a series of attention-getting news articles, written by the individual defendant reporters, regarding the alleged theft.³

Wojcik sued the Lottery and various of its officials in United States District Court, claiming (inter alia) defamation and violations of civil rights. During discovery in that action, Wojcik deposed many Lottery officials, each of whom disclaimed knowledge of who had acted as sources for the stories published by the newspaper. Summary judgment entered against Wojcik on his Federal claims, and the case was remanded to the Superior Court.⁴ In September, 2001, Wojcik filed the present action against the defendant newspaper and reporters.⁵ Wojcik requested, among other discovery, disclosure of the sources on whom the newspaper relied in publishing its allegations against Wojcik. In response, the defendants objected to the requests for production of documents insofar as they requested “documents whose production would disclose the identities of confidential sources,” and refused to answer interrogatories requesting such disclosure.⁶ Wojcik moved to compel a more complete response, and a judge of the Superior Court allowed the motion, ordering the defendants to disclose the identities of their sources.⁷ The defendants sought interlocutory review under G. L. c. 231, § 118, and the single justice reported the question for plenary review.⁸

Discussion. On appeal from an interlocutory discovery order, we review for abuse of discretion. See Ayash v. Dana-Farber Cancer Inst., 46 Mass. App. Ct. 384, 387 (1999). See also Matter of Roche, 381 Mass. 624, 638 (1980). Cf. Sinnott v. Boston Retirement Bd., 402 Mass. 581, 585, cert, denied sub nom. Sinnott v. Radin, 488 U.S. 980 (1988). Of course, the standard “abuse of discretion” admits of numerous meanings in different contexts, see Long v. Wickett, 50 Mass. App. Ct. 380, 386 n.8 (2000); in the present case, the motion judge’s discretion is bounded by important values under the First Amendment to the United States Constitution. See Bruno & Stillman, Inc. v. Globe Newspaper Co., 633 F.2d 583, 598 (1st Cir. 1980).

In his order, the motion judge displayed his understanding of the need in the circumstances to balance “the public interest in every person’s evidence and the public interest in protecting the free flow of information.” Petition for the Promulgation of Rules Regarding the Protection of Confidential News Sources & Other Unpublished Information, 395 Mass. 164, 172 (1985).⁹ The judge concluded that the plaintiffs’ need for the requested discovery to carry the burden of proof on their claims outweighed the potential harm to the newspaper’s ability to gather information by reliance on confidential sources.¹⁰

The motion judge described the identities of the defendant reporters’ sources as “central” to the plaintiffs’ claim, explaining that “[wjithout disclosure of the sources, the plaintiffs will have no way to investigate . . . whether the defendants were reasonable in crediting the accuracy of the information provided to them.”¹¹ It is at this juncture that we depart from the judge’s analytical course: the relevance of the sources’ identities to the plaintiffs’ claim is not apparent to us on the present record, at least so far as the record is now developed. If the articles are libelous in the manner the plaintiffs claim, the libelous character of the articles does not appear to rest so much on the accuracy of what the reporters contend they were told by unnamed sources, but on what the reporters wrote.

Assuming (without deciding) that all of the articles asserted, in substance, that Wojcik had in fact engaged in a “scam” for the theft of scratch tickets,¹² the interrogatory responses that formed the basis for the plaintiffs’ motion to compel are decidedly unclear on the extent to which the reporters attribute such an accusation to any source. In response to Wojcik’s interrogatory no. 2, which requested detailed information regarding each communication by the reporters concerning Wojcik and the Lottery’s Fairhaven office, the defendant Silberman attributed to confidential sources the assertions that (i) two Lottery employees were suspended with pay pending investigation; (ii) the employees denied wrongdoing and that the Lottery had not determined whether any money was missing; (iii) a particular named Lottery supervisor “was not really involved but that two men who worked for him were involved”; and (iv) after approximately two weeks, the supervisor had retired and the Lottery had found sufficient cause to terminate the other two employees.

It is unclear at the present limited stage of discovery precisely what Silberman claims to have been told by her sources, and precisely how it relates to the essential elements of Wojcik’s defamation claim. If by reference to the assertion described in clause (iii)¹³ Silberman contends that one or more sources told her that Wojcik took and scratched lottery tickets (as she reported in her article), the plaintiffs are likely entitled to disclosure of the identities of the sources, both to explore whether the sources confirm or contest Silberman’s version of their conversations and to determine whether Silberman exercised due care in verifying the information she received from the sources before publishing it. However, if the unnamed “confidential” sources merely told Silberman that Wojcik was suspended pending an internal investigation (the truth of which is undisputed), the identities of the sources are largely irrelevant to Wojcik’s defamation claim; if the articles are libelous, their libelous character results from deviations between what Silberman was told and what she wrote. Further discovery, including Silberman’s deposition, will likely clarify what Silberman contends she was told by her unnamed sources and the extent to which the articles as written relied on that information, and will thereby illuminate whether the identities of her sources are in fact essential to Wojcik’s claim.¹⁴

That is not to say that the plaintiffs were not entitled to some relief on their motion to compel. The defendants’ responses to the plaintiffs’ requests for answers to interrogatories were plainly inadequate. For example, Silberman refused to furnish any substantive response to interrogatory no. 3, which sought, in addition to the identity of each source referenced in the articles, the substance of her communications with them.¹⁵ Macero’s responses were evasive and uninformative on the specific substance of his communications with his unnamed sources; whatever question there may be about the importance of the sources’ identities, there is no question that the substance of the information they furnished to the reporters lies at the very center of the plaintiffs’ claim. Furthermore, without disclosing the identities of the sources themselves it would be illuminating, for purposes of the plaintiffs’ claim, to determine whether the unnamed sources were employees or officers of the Lottery (or, alternatively, perhaps of an outside auditor), and whether they claimed to have direct personal knowledge of the information they provided. The discovery process is not a game of cat and mouse, and the defendants may not evade the plaintiffs’ inquiries into relevant and discoverable material merely by invoking overbroad reference to the First Amendment. An order compelling more complete answers to the plaintiffs’ interrogatories, and awarding other sanctions (such as attorney’s fees incurred in pursuing the motion to compel), however, would punish the defendants’ inadequate discovery responses while still recognizing the First Amendment considerations bounding the exercise of the motion judge’s discretion.

As to the narrower question of the disclosure of the sources’ identities, however, it is premature on the present record to conclude that the plaintiffs’ claim of defamation depends in any demonstrated manner on the identities of the sources for the defendants’ published stories. See Bruno & Stillman, Inc. v. Globe Newspaper Co., 633 F.2d at 598-599.¹⁶ Without a demonstrated essential relationship between the identities of the reporters’ sources and the elements of the plaintiffs’ claim, the motion judge’s order compelling disclosure of the identities of the sources exceeded the bounds of his discretion in the circumstances, and was in error.¹⁷ We accordingly vacate so much of the Superior Court order as compels disclosure of the identities of the reporters’ sources, and remand the matter to the Superior Court for further proceedings consistent with this opinion.

So ordered.

3 The first such article appeared atop the front page of the September 3, 1999, edition, under a headline that read “Lottery duo allegedly cashed in for scratch.” Authored by defendants Ellen Silberman and Cosmo Macero, the second and third paragraphs of the article read as follows:

“Sources told the [Boston] Herald yesterday that Ed Wojcik and Greg Buckley were suspended Monday from their jobs at the Lottery’s Fairhaven regional office after the latest explosive evidence of new Lottery plundering began to emerge.

“In the scam — sources said — books of instant tickets would be scratched soon after delivery from the Lottery supplier, but before they were ‘scanned in’ or activated. Winning batches were cashed in and subsequently paid for at face value. The losers were dumped in the trash.”

Additional articles appeared on September 4, September 16, September 17, and September 22. The September 22 article, written by defendant Silberman, reported Wojcik’s firing of the previous day. It explained (in two nonconsecutive paragraphs):

“[Treasury spokesman Dwight] Robson would not elaborate on the reasons for their termination, but sources said Buckley and Wojcik were allegedly scratching instant tickets before they were available to the public.

“Sources said Buckley, an administrator in the Fairhaven office, and Wojcik, a field service manager responsible for providing and fixing equipment such as Lottery sales terminals, would allegedly take — and scratch — books of instant tickets soon after they were delivered from the Lottery supplier, but before they were ‘scanned in’ or activated.”

A later article, authored by the defendant Karen Crummy, appeared on November 10, 2000.

4 1116 judgment dismissing the Federal claims was affirmed on appeal. See Wojcik v. Massachusetts State Lottery Commn., 300 F.3d 92 (1st Cir. 2002).

5 The complaint was in three counts: defamation; invasion of privacy; and loss of consortium. The parties have engaged the issue involved in the present appeal principally through the lens of the defamation count.

6 The relevant interrogatories and answers are set out in full in an Appendix following the court’s majority and dissenting opinions. Post at 524. The record on appeal does not include the documents produced, though the defendants’ response to the request for production of documents states that they would produce documents which do not disclose the identities of confidential sources.

7 The judge correspondingly denied the defendants’ motion for a protective order.

8 The ordinary path to appellate review of an order compelling disclosure of a reporter’s sources follows an adjudication of contempt. See Matter of Roche, 381 Mass. 624, 625 n.l (1980); Ayash v. Dana-Farber Cancer Inst., 46 Mass. App. Ct. 384, 387 (1999). Compare Cronin v. Strayer, 392 Mass. 525, 528-530 (1984) (order compelling discovery is not appealable prior to adjudication of contempt). The election to refer the present interlocutory appeal for plenary review was within the authority of the single justice. See Mancuso v. Mancuso, 10 Mass. App. Ct. 395, 401 n.6 (1980); Manfrates v. Lawrence Plaza Ltd. Partnership, 41 Mass. App. Ct. 409, 412 (1996).

9 Though there is no constitutional, statutory, or common-law privilege protecting a news reporter against such disclosure, “[i]t is well settled that, in supervising discovery, a presiding judge is ‘obliged to consider the effect that compelled discovery would have on “the values protected by the First Amendment, [even] though [these values were] entitled to no constitutional privilege.” ’ Matter of Roche, [381 Mass.] at 636, quoting Herbert v. Lando, 441 U.S. 153, 180 (1979) (Powell, J., concurring). The ‘needless disclosure of confidential relationships,’ Matter of Roche, supra at 637, is, therefore, to be avoided.” Ayash v. Dana-Farber Cancer Inst., 46 Mass. App. Ct. at 388, quoting from Sinnott v. Boston Retirement Bd., 402 Mass. at 586.

10 Before conducting the balancing test, the motion judge concluded that the defendants had made an adequate showing of potential damage to the free flow of information as a result of the requested disclosure. See Ayash v. DanaFarber Cancer Inst., 46 Mass. App. Ct. at 388-390. We agree with the judge’s conclusion.

11 The tort of libel (involving a private plaintiff) requires (i) publication (ii) of false and defamatory information (iii) with negligent care for the veracity of the information. See Stone v. Essex County Newspapers, Inc., 367 Mass. 849, 858 (1975). The motion judge assumed that the plaintiff was not a public figure, for whom the third element would require an intentional or reckless disregard for the truth. See New York Times Co. v. Sullivan, 376 U.S. 254, 279-280 (1964). In the present case, the differing burden of proof between public and private claimants does not bear on the relevance of the identities of the sources to the plaintiffs’ claim.

12 The defendants argue that the articles published on September 3, 4, 16, and 17 asserted merely that Wojcik was suspended, pending investigation into whether he had engaged in the alleged theft. It is at least arguable that the articles, read in their entire context, suggested much more. In any event, the September 22 article includes an assertion that Wojcik actually stole Lottery tickets for personal gain.

13 Of the remaining assertions attributed to sources in Silberman’s response, the parties do not appear to contest the truth of the assertions described in clauses (i), (ii), and (iv).

14 Macero’s response to interrogatory no. 2 is similarly unclear. He states that an unnamed source (whom he describes as “Source 2”) “provided the names of the state employees suspected of wrongdoing and provided clarity to other basic facts and information obtained from confidential sources or sources identified in articles, including Source 1. Source 2 may also have discussed the type of action that would possibly be taken in response to the situation, including the potential penalties against the employees.”

15 To the extent that the substance of such communications is embraced entirely within Silberman’s response to interrogatory no. 2, she should say so; to the extent there were any additional communications or any other matters of substance discussed, she should provide that information.

16 It is in that respect that the present case is distinguishable from Dow Jones & Co. v. Superior Ct., 364 Mass. 317 (1973), on which the dissent relies. In that case, the article forming the basis of the plaintiff’s libel claim quoted an unnamed town official as stating that the plaintiff “was a ‘bad word’ in Stoneham and . . . was in fact using the law to ‘blackmail’ the town officials.” Id. at 318. The essential connection between the plaintiff’s claim and the identity of the source was clearly established, without need of further exploration.

17 Contrary to the suggestion advanced by the dissent, we do not impose a requirement that disclosure of source identity be deferred until all other discovery from nonconfidential sources has been exhausted. See post at 518. Instead, we conclude simply that disclosure ordinarily should not be required absent demonstration of an essential relationship between the identities of the sources and the plaintiffs’ ability to establish an element of their claim. On the present state of discovery, the plaintiffs have not demonstrated such a relationship; whether such a relationship exists or not will depend on the results of further discovery.