PUBLISHED OPINION
Case Nos.: 94-1279 & 94-1282
Complete Title
of Case:
94-1279
ANTON KURZYNSKI, RUTH KURZYNSKI,
NORMAN MIEROW, RICHARD WARGIN,
PHILLIP BARNARD and KAREN FAESTEL,
Plaintiffs,
v.
ALLEN W. SPAETH, D.D.S.,
CONTINENTAL CASUALTY CO.,
PROFESSIONAL MEDICAL INSURANCE CO.,
DR. THOMAS ROSKOS,
WISCONSIN PHYSICIANS SERVICE INSURANCE CORPORATION,
NORTHWEST GENERAL HOSPITAL,
WISCONSIN HEALTH CARE LIABILITY INSURANCE PLAN,
and WISCONSIN PATIENTS COMPENSATION FUND,
Defendants,
DR. WILLIAM FABER,
Defendant-Respondent,
v.
MILWAUKEE MAGAZINE,
STEPHEN FILMANOWICZ
and SUSAN DALE,
Appellants.
----------------------------------------------------------------------------------------------------
94-1282
MARY WENDORF
and ROBERT WENDORF,
Plaintiffs,
WEST ALLIS MEMORIAL HOSPITAL, INC.,
Involuntary-Plaintiff,
v.
PROFESSIONAL MEDICAL INSURANCE COMPANY,
a foreign insurance corporation,
PHYSICIANS INSURANCE COMPANY OF WISCONSIN, INC.,
a Wisconsin insurance corporation,
THOMAS ROSKOS, D.O.,
CONTINENTAL CASUALTY COMPANY,
a foreign insurance corporation,
ALAN W. SPAETH, D.D.S.,
WISCONSIN HEALTH CARE LIABILITY INSURANCE PLAN,
a Wisconsin insurance corporation,
NORTHWEST GENERAL HOSPITAL, and
WISCONSIN PATIENTS COMPENSATION FUND,
Defendants,
WILLIAM FABER, D.O.,
Defendant-Respondent,
v.
MILWAUKEE MAGAZINE,
STEPHEN FILMANOWICZ
and SUSAN DALE,
Appellants.
Submitted on Briefs: July 11, 1995
COURT COURT
OF APPEALS OF WISCONSIN
Opinion Released: August 1, 1995
Opinion Filed: August 1, 1995
Source of APPEAL Appeal
from an order
Full Name JUDGE COURT: Circuit
Lower Court. COUNTY: Milwaukee
(If “Special”, JUDGE: PATRICK J. MADDEN
so indicate)
JUDGES: Sullivan,
Fine and Schudson, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYSOn
behalf of the appellants, the cause was submitted on the briefs of Jeffrey
J. Kassel and Brady C. Williamson of La Follette & Sinykin,
of Madison.
Respondent
ATTORNEYSOn
behalf of the defendant-respondent, the cause was submitted on the briefs of Robert
J. Kay of Kay & Andersen, S.C., of Madison.
COURT OF APPEALS DECISION DATED AND RELEASED August 1, 1995 |
NOTICE |
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
Nos. 94-1279 & 94-1282
STATE
OF WISCONSIN IN COURT OF
APPEALS
94-1279
ANTON KURZYNSKI, RUTH
KURZYNSKI,
NORMAN MIEROW, RICHARD
WARGIN,
PHILLIP BARNARD and
KAREN FAESTEL,
Plaintiffs,
v.
ALLEN W. SPAETH,
D.D.S.,
CONTINENTAL CASUALTY
CO.,
PROFESSIONAL MEDICAL
INSURANCE CO.,
DR. THOMAS ROSKOS,
WISCONSIN PHYSICIANS
SERVICE INSURANCE CORPORATION,
NORTHWEST GENERAL
HOSPITAL,
WISCONSIN HEALTH CARE
LIABILITY INSURANCE PLAN,
and WISCONSIN PATIENTS
COMPENSATION FUND,
Defendants,
DR. WILLIAM FABER,
Defendant-Respondent,
v.
MILWAUKEE MAGAZINE,
STEPHEN FILMANOWICZ
and SUSAN DALE,
Appellants.
----------------------------------------------------------------------------------------------------
94-1282
MARY WENDORF
and ROBERT WENDORF,
Plaintiffs,
WEST ALLIS MEMORIAL
HOSPITAL, INC.,
Involuntary-Plaintiff,
v.
PROFESSIONAL MEDICAL
INSURANCE COMPANY,
a foreign insurance
corporation,
PHYSICIANS INSURANCE
COMPANY OF WISCONSIN, INC.,
a Wisconsin insurance
corporation,
THOMAS ROSKOS, D.O.,
CONTINENTAL CASUALTY
COMPANY,
a foreign insurance
corporation,
ALAN W. SPAETH,
D.D.S.,
WISCONSIN HEALTH CARE
LIABILITY INSURANCE PLAN,
a Wisconsin insurance
corporation,
NORTHWEST GENERAL
HOSPITAL, and
WISCONSIN PATIENTS
COMPENSATION FUND,
Defendants,
WILLIAM FABER, D.O.,
Defendant-Respondent,
v.
MILWAUKEE MAGAZINE,
STEPHEN FILMANOWICZ
and SUSAN DALE,
Appellants.
APPEAL from an order of
the circuit court for Milwaukee County:
PATRICK J. MADDEN, Judge. Reversed.
Before Sullivan, Fine
and Schudson, JJ.
FINE, J. This is an appeal from an order of the trial
court enforcing discovery subpoenas issued to employees of Milwaukee
Magazine in malpractice actions against, inter alia, William Faber,
D.O. We reverse.
I.
The plaintiffs in the
underlying actions claim that Dr. Faber and others were guilty of malpractice
in their treatment of the plaintiffs' pain.
In its January 24, 1994, issue, Milwaukee Magazine published a
lengthy article about Dr. Faber. The
article, entitled “bone of contention” (lack of capitalization in original),
summarized its scope in its preamble:
When
Dr. William Faber and his associates told hundreds of long-suffering patients
that their diseased jaws were behind the pain in other parts of their bodies,
many of them had their teeth removed or their jaws surgically scraped. Why, then, have other doctors and dentists
seen no reason for many of the procedures?
Are Faber and his team on the verge of a breakthrough - or practicing a
harmful form of medicine?
Anton
Kurzynski, Norman Mierow, Richard Wargin, Philip Barnard, Karen Faestel, and
Mary Wendorf, plaintiffs in these consolidated cases, were some of Dr. Faber's
patients who were discussed in the article.
Prior to the article's publication, Dr. Faber's attorney served
upon Milwaukee Magazine, its associate editor, Stephen Filmanowicz, and
Susan Dale, a temporary research assistant working with Filmanowicz on the
Faber article, subpoenas issued under Rule
804.05, Stats., seeking
Filmanowicz's and Dale's testimony and the production of:
All documents and records pertaining in any way
to interviews or conversations of you or any Milwaukee Magazine
employees or agents with any persons in any way related to litigation involving
Dr. William Faber, the Milwaukee Pain Clinic, or the subject matter of
biological dentistry, including but not limited to, attorneys for any of the
parties to said litigation, patients of Dr. Faber or the Milwaukee Pain Clinic,
and any expert witnesses or consultants on the subject matter of said
litigation or biological dentistry.
Documents and records to be produced include, but are not limited to,
tape recordings, computer disks, written documents, notes, memorandums,
calendar entries, and telephone messages.
The
trial court directed that Filmanowicz and Dale “give testimony and produce
documents” that “relate in any way to communications whether oral or in
writing, transmission of documents or information in any other form or contacts
of any kind between said Stephen Filmanowicz or Susan Dale and plaintiffs or
their designated expert witnesses regarding the subject matters in the
above-captioned actions.”[1] Dale is the wife of Fred A. LaCourt, D.D.S.,
whom both sides tell us is one of the Wendorfs' expert witnesses and who is
also mentioned in the Milwaukee Magazine article.
II.
This case presents an issue
of first impression in Wisconsin: the
extent to which parties to civil litigation may have discovery of non-party
journalists. Rule 804.01(2)(a), Stats.,
provides that parties to civil litigation “may obtain discovery regarding any
matter, not privileged, which is relevant to the subject matter involved
in the pending action” even though the information sought would not be
admissible at trial as long as “the information sought appears reasonably
calculated to lead to the discovery of admissible evidence.” (Emphasis added.) Rule 804.05(1), Stats., permits parties to depose “any”
non-party person, subject to the distance limitations set out in Rule 804.05(3)(b)4, Stats., and, by reference to the
subpoena-procedure set out in Rule
805.07, Stats., to compel that
person “to produce books, papers, documents, or tangible things designated” in
the subpoena. Filmanowicz and Dale
assert that they have a privilege not to comply with the subpoenas, as limited
by the trial court's order, because the information sought was given to them in
their capacity as journalists. They do
not contend that any of the information subject to the trial court's order was
given to them in return for a promise of confidentiality.
Testimonial privileges
in Wisconsin are governed by Chapter
905, Stats. Rule
905.01, Stats., reaffirms that
parties in litigation are entitled to every person's evidence, except when a
person from whom evidence is sought has a privilege that is “inherent or
implicit in statute or in rules adopted by the supreme court or required by the
constitution of the United States or Wisconsin.”[2] Journalists in Wisconsin have a qualified
privilege based on Article I, section 3, of the Wisconsin Constitution not to
disclose information gathered by them in the course of their journalistic
endeavors. Green Bay Newspaper
Co. v. Circuit Court, 113 Wis.2d 411, 419, 335 N.W.2d 367, 371–372
(1983) (criminal case where defendants sought access to a journalist's
confidential sources).[3] No person, however, whether
journalist or not, may be forced to respond to a subpoena in Wisconsin unless
the party seeking the information encompassed by the subpoena makes a
preliminary showing that justifies the intrusion. Id., 113 Wis.2d at 421, 335 N.W.2d at 372. Thus, even in criminal cases where a
defendant's right to evidence is protected by the constitutional guarantee of
compulsory process, there must be “some proof, beyond mere speculation, that
there is a reasonable probability that the subpoenaed witnesses' testimony will
be competent, relevant, material and favorable to his defense,” or that there
“is a reasonable probability” that the subpoenaed witnesses' testimony will
lead to the discovery of admissible evidence.
Id., 113 Wis.2d at 421–422, 335 N.W.2d at 372–373. Journalists, however, are given greater
protection from the intrusions and disruptions of having to comply with
discovery subpoenas seeking evidence gathered in the course of their work as
journalists than are other witnesses.
In order to prevent parties from using journalists as investigative
tools, a party seeking evidence gathered by the journalist must also show “by a
preponderance of the evidence either that he has investigated all reasonable
and available alternative sources” for the information sought, “or that no such
sources exist.” Id., 113
Wis.2d at 422–423, 335 N.W.2d at 373.
Although Green Bay
Newspaper Co. was decided under Article I, section 3, of the
Wisconsin Constitution and not the First Amendment to the United States Constitution,
most litigation over a journalist's qualified privilege has been under the
First Amendment.[4] Indeed, Wisconsin and the other states may
not abridge whatever privileges journalists have under the First Amendment, see
New York Times Co. v. Sullivan, 376 U.S. 254, 264–265 (1964), and
the original formulation of a journalist's privilege in Wisconsin was under the
aegis of the First Amendment, see State v. Knops, 49
Wis.2d 647, 652, 183 N.W.2d 93, 95 (1971).
Knops held that an editor of the Madison, Wisconsin,
newspaper Kaleidoscope could be compelled to answer “five very narrow
and specific questions” posed during a grand-jury inquiry into whether there
was a conspiracy tying an arson on the Wisconsin State University campus at
Whitewater, Wisconsin, to the bombing of Sterling Hall at the University of
Wisconsin's Madison campus. Id.,
49 Wis.2d at 649, 658, 183 N.W.2d at 98.
The court applied a balancing test similar to the one applied in Green
Bay Newspaper Co.—weighing the need for the information against the
likelihood that the information sought was available through alternative
sources. Knops, 49 Wis.2d
at 658–659, 183 N.W.2d at 99.[5]
The Knops
analysis foreshadowed that of Branzburg v. Hayes, 408 U.S. 665
(1972), which held that journalists could be compelled to answer questions
posed during a grand-jury investigation of criminal activity. Id., 408 U.S. at 690–692. As noted by Zelenka v. State,
83 Wis.2d 601, 618, 266 N.W.2d 279, 286–287 (1978), the majority opinion in Branzburg
when read together with the concurring opinion of Justice Powell, whose
agreement was necessary to achieve that majority, recognized a qualified
journalist's privilege the parameters of which are to be determined in a manner
“comparable to the balancing test adopted by [the supreme] court in Knops—balancing
freedom of the press against a compelling and overriding public interest in the
information sought.” Zelenka,
83 Wis.2d at 618, 266 N.W.2d at 287.[6] Indeed, Justice Powell's concurring opinion
in Branzburg noted, as did Green Bay Newspaper Co.,
113 Wis.2d at 422, 335 N.W.2d at 373, that constitutional protections afforded
the press militated against using “the news media as `an investigative arm'” of
litigants. Branzburg, 408
U.S. at 709 (Powell, J., concurring).
The striking similarity between the analysis in Branzburg
and Knops, which were both decided under the First Amendment, and
the analysis in Green Bay Newspaper Co., which was decided under
Article I, section 3, leads us to conclude that the scope of the qualified
journalist's privilege is the same whether measured under the First Amendment
or under Article I, section 3, and that “the balancing approach of Knops—balancing
a privilege of nondisclosure against the societal values favoring disclosure—”
remains the law in this state. Zelenka,
83 Wis.2d at 619, 266 N.W.2d at 287.[7] Accordingly, we look to cases interpreting
the journalist's qualified privilege under the First Amendment in civil cases
for guidance in determining the scope of that privilege here.
The first-amendment
analysis of the journalist's qualified privilege in civil cases where the
journalist is not a party to the litigation most akin to that of Green
Bay Newspaper Co. is that undertaken by the two Ninth Circuit decisions
in Schoen v. Schoen—5 F.3d 1289 (9th Cir. 1993) and 48 F.3d 412
(9th Cir. 1995). Schoen involved an intra-family lawsuit; the
founder of the U-Haul Corporation was sued by two of his sons for defamation
after he accused them of complicity in the murder of their brother's wife. Schoen, 48 F.3d at 413. The elder Schoen was interviewed extensively
by the author of Birthright, a book about the Schoens' fight for control
over U-Haul. Ibid. Although they did not claim that their
father made any defamatory statements to the book's author, the sons subpoenaed
the author to appear at a deposition and demanded that he “produce all
documents and recordings” relating to the family dispute and the death of their
sister-in-law. Id., 48
F.3d at 414. The author had not promised confidentiality in return for the
elder Schoen's cooperation. Schoen,
5 F.3d at 1290. Schoen,
however, recognized the danger to the values protected by the First Amendment's
“free press” clause of requiring journalists to comply with discovery subpoenas
even when confidential information was not sought:
“[T]he
threat of administrative and judicial intrusion into the newsgathering and
editorial process; the disadvantage of a journalist appearing to be an
investigative arm of the judicial system or a research tool of government or of
a private party; the disincentive to compile and preserve non-broadcast
material; and the burden on journalists' time and resources in responding to
subpoenas.”
Id., 5
F.3d at 1294–1295. (Citation omitted.)
Application of a
qualified journalist's privilege in the context of civil litigation requires a
balancing between, on the one hand, the need to insulate journalists from undue
intrusion into their news-gathering activities and, on the other hand, litigants'
need for every person's evidence. See
Schoen, 48 F.3d at 415–416. This balancing is required
irrespective of whether the journalist's information was obtained in return for
a promise of confidentiality. See
Green Bay Newspaper Co., 113 Wis.2d at 418, 335 N.W.2d at 371
(confidentiality promised); Schoen, 48 F.3d at 416
(confidentiality not promised). Schoen
applied the following test:
[W]here
information sought is not confidential, a civil litigant is entitled to
requested discovery notwithstanding a valid assertion of the journalist's
privilege [that is, that the person asserting the privilege is a “journalist”]
by a nonparty only upon a showing that the requested material is: (1) unavailable despite exhaustion of all
reasonable alternative sources; (2) noncumulative; and (3) clearly relevant to
an important issue in the case. We note
that there must be a showing of actual relevance; a showing of potential
relevance will not suffice.
Id., 48
F.3d at 416. We examine each aspect of
this test in turn.
The first element of the
Schoen test, that there be no alternate sources for the
information sought, mirrors the rule adopted by Green Bay Newspaper Co.
for criminal cases involving information obtained by a journalist in return for
a promise of confidentiality. See
Green Bay Newspaper Co., 113 Wis.2d at 422–423, 335 N.W.2d at
373–374. A fortiori, there is no
impediment to its use in civil cases, where neither a defendant's right to
compulsory process nor the state's crime-solving responsibilities is implicated. The second element of the test, that the
information sought from the journalist not duplicate that which is already
known by the party seeking the information is, in essence, a weighing of the
information's utility to a party against the burden on the witness to produce
that information. This principle
already shields witnesses who are not journalists from having to comply with
discovery subpoenas when to do so would be onerous. See Rule
804.01(3)(a), Stats. (trial court
may issue protective order to “protect a party or person from annoyance ...
oppression, or undue burden or expense”); Vincent & Vincent, Inc. v.
Spacek, 102 Wis.2d 266, 271–272, 306 N.W.2d 85, 88 (Ct. App. 1981);
8 Charles A. Wright et al., Federal
Practice and Procedure § 2037 at 496 (1994). The “clearly relevant” third aspect of the
three-part Schoen test works in synergism with the first element
to prevent the impressment of journalists as involuntary investigators for the
parties. The corollary requirement that
there be a showing of “actual” and not “potential” relevance prevents resort to
newsgatherers' files and knowledge with the hope, to paraphrase in another
context the forever optimistic Charles Dickens character Wilkins Micawber, that
something will “turn up.”[8] This ensures that “`the burden on
journalists' time and resources in responding to subpoenas,'” Schoen,
5 F.3d at 1295 (citation omitted), will be imposed only when necessary. We adopt this test for civil actions in
Wisconsin.
A trial court's decision
whether to order discovery is one vested in its sound discretion. Vincent & Vincent, Inc.,
102 Wis.2d at 270, 306 N.W.2d at 87. A trial court's discretionary
determination will be upheld on appeal if it is “consistent with the facts of
record and established legal principles.”
Lievrouw v. Roth, 157 Wis.2d 332, 358-359, 459 N.W.2d 850,
859-860 (Ct. App. 1990). Although the
trial court did not anticipate this decision, and did not, therefore, find that
Dr. Faber's attorney had made the required showing in order to pierce the
journalist's qualified privilege, we can sustain the trial court's decision if
that decision is, nonetheless, supported by the record. See Kolpin v. Pioneer Power
& Light Co., 162 Wis.2d 1, 30, 469 N.W.2d 595, 606 (1991).
In his affidavit
opposing the journalists' motion for a protective order, Dr. Faber's
attorney specified what we have counted as ten areas into which he sought
inquiry. As noted, the trial court
limited its order to two of these areas: communications between Filmanowicz or
Dale with either the plaintiffs or their designated expert witnesses. Dr. Faber's attorney has not demonstrated in
the record that we have before us that he has exhausted all reasonable
alternative sources for the information he seeks. It is clear from the trial court's decision that there are other
witnesses whom Dr. Faber could have subpoenaed or interviewed in lieu of
deposing Filmanowicz and Dale, namely the plaintiffs or their designated expert
witnesses. The record, however, does
not reveal that he did this. Further,
we do not know if other sources for the information are available because the
record does not indicate what alternatives to the deposing of Filmanowicz and
Dale the trial court considered and its reasons for rejecting them. Therefore, Dr. Faber's attorney has not
demonstrated that his investigation has been sufficiently thorough and
comprehensive so that further efforts to obtain the information he seeks would
not be successful. Moreover, the record
does not demonstrate that the information Dr. Faber's attorney seeks, within
the scope of the trial court's order, is “clearly relevant to an important
issue in the case,” bearing in mind “that there must be a showing of actual
relevance; a showing of potential relevance will not suffice.” See Schoen, 48 F.3d at
416. Accordingly, we reverse the trial
court's order.
By the Court.—Order
reversed.
[1] Dr. Faber has not cross-appealed from the trial court's order and does not claim that the limitation on the scope of his inquiry was error.
[2] Rule 905.01, Stats., provides:
Privileges recognized only as
provided. Except as provided by or inherent or
implicit in statute or in rules adopted by the supreme court or required by the
constitution of the United States or Wisconsin, no person has a privilege to:
(1) Refuse to be a
witness; or
(2) Refuse to disclose
any matter; or
(3) Refuse to produce any
object or writing; or
(4) Prevent another from being a witness or disclosing any matter or producing any object or writing.
[3] Article I, section 3,
of the Wisconsin Constitution provides:
Every person may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right, and no laws shall be passed to restrain or abridge the liberty of speech or of the press. In all criminal prosecutions or indictments for libel, the truth may be given in evidence, and if it shall appear to the jury that the matter charged as libelous be true, and was published with good motives and for justifiable ends, the party shall be acquitted; and the jury shall have the right to determine the law and the fact.
[4] U.S. Const. amend. I provides:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
[5] Knops held that there was a compelling need for the information, which “could lead to the apprehension and conviction” of those who bombed Sterling Hall, and that law enforcement did not have to pursue alternative sources of that information first because the fact that the police sought the information from the editor was “nearly conclusive proof” that they did not know who had bombed the building: “it would unnecessarily impede the solving of this case to require the state to go through the empty ritual of proving that which is already obvious, namely, that the identity of the culprits is unknown.” Id., 49 Wis.2d at 659, 183 N.W.2d at 99.
[6] Most of the federal circuit courts of appeals have similarly concluded that Branzburg recognized a qualified journalist's privilege. See Schoen v. Schoen, 5 F.3d 1289, 1292 n.5 (9th Cir. 1993) (collecting cases).