Senior United States District Judge.
Plaintiff Iolana Klotsman ("Klotsman") is an employee of a grocery store located in the Mount Washington area of Baltimore City. In this civil action, she has sued her employer and two supervisors under Title VII of the Civil Rights Act of 1964 as amended, 42 U.S.C. § 2000e, et. seq., and also under state law. Named as defendants are Fresh Fields Whole Foods Market ("Fresh Fields"), Bill Wilhelm and Joe Flueckiger.
Pursuant to a Scheduling Order entered by the Court, the parties have been engaging in discovery. Defendants previously noted the depositions of Lisa Robinson ("Robinson") and Cesar Aldama ("Aldama"), employees of WBAL-TV, a television station in Baltimore. Robinson is a reporter for and Aldama is Managing Editor of the News Department of WBAL-TV. On April 13, 1999, WBAL-TV aired a story about this case brought by plaintiff Klotsman against Fresh Fields. Robinson and Aldama have been served with subpoenas directing them to produce certain documents relating to this news report.
Deponents Robinson and Aldama have now filed a motion to quash subpoenas or for a protective order. In support of that motion, the deponents have submitted a memorandum of law and various exhibits. Defendants in turn have filed an opposition to the deponents' motion to quash together with supporting exhibits, and the deponents have recently replied to the defendants' opposition. No hearing is necessary for a decision on the pending motion. See Local Rule 105.6. For the reasons stated herein, deponents' motion to quash or for a protective order will be denied.
In their motion, the deponents assert the so-called journalist's privilege which they claim protects them from being compelled to testify in this matter and from producing unpublished materials, including their notes. See Branzburg v. Hayes, 408 U.S. 665 (1972). The deponents agree that defendants are entitled to published information but argue that their motion should be granted as to non-published information pursuant to the qualified privilege afforded them under the First Amendment to the United States Constitution.
Counsel for defendants went forward with the depositions of Aldama and Robinson which took place on May 6 and May 12, respectively. At those depositions, counsel for the deponents asserted the journalist's privilege on numerous occasions and directed Aldama and Robinson not to respond to certain questions posed by defendants' attorney. The Court's ruling on the pending motion applies both to the documents sought by defendants' subpoenas and to the objections made by deponents' counsel at their depositions.
In undertaking discovery in this case, defendants are seeking to determine the content of conversations between the deponents and plaintiff Klotsman and between the deponents and witnesses to the events alleged in the complaint. Defendants also seek notes pertaining to statements made by Klotsman and the witnesses who were interviewed. Deponents concede that the information sought by defendants is non-confidential and is derived from non-confidential sources. Moreover, deponents do not here contend that there is evidence of vindictiveness or harassment on the part of defendants in seeking the information in question.
Under circumstances like those present in this case, the Fourth Circuit has held that journalists do not possess a First Amendment privilege. In re Shain, 978 F.2d 850, 853 (4th Cir. 1992); see also Branzburg, 408 U.S. at 708-09, and United States v. Steelhammer, 539 F.2d 373, 375 (4th Cir. 1977). The deponents argue that the Court should here apply the balancing test adopted by the Fourth Circuit in LaRouche v. National Broadcasting Co., 780 F.2d 1134 (4th Cir. 1986). This Court would disagree. The test in question was applied in LaRouche because the information in question came from a confidential source. In this particular case, the information sought is non-confidential and was not obtained from a confidential source. Under In re Shain, no balancing test need be applied by a court in determining whether the privilege attaches to non-confidential information obtained from a non-confidential source. The deponents' reliance on the district court opinion in Penland v. Long, 922 F. Supp. 1080, 1082 (W.D.N.C. 1995) is misplaced. To the extent that Penland can be interpreted as requiring the application of a balancing test in a case like this one, that decision is in conflict with the Fourth Circuit's opinions in In re Shain and Steelhammer.
In any event, even if a balancing test were to be applied here, this Court concludes that it has been satisfied. The information in question is clearly relevant. Statements made by plaintiff Klotsman and other witnesses to a neutral reporter in a non-adversarial setting can hardly be obtained by way of depositions or interrogatories. Defendants have a clear need for this information, and there is a compelling interest in the disclosure of the information at issue under all the circumstances of this case.
For the first time in their reply memorandum, the deponents rely on § 9-112, Md. Code Ann., Cts. Jud. Proc. (1998 Repl. Vol.) Such reliance is misplaced. Federal law is controlling as to Counts I through IV of the complaint. The controlling principles in a claim asserted under Title VII are those enunciated by the Fourth Circuit in In re Shain and Steelhammer. Moreover, defendants in any event have satisfied the requirements of § 9-112(d), which permits the court to compel disclosure of the information in question under the circumstances of this case.
For all these reasons, the deponents should comply with the subpoenas previously issued. Moreover, defendants are entitled to reschedule the depositions of Robinson and Aldama, who should respond to the questions to which objections were made based on the existence of the journalist's privilege.
Accordingly, it is this ______ day of June, 1999 by the United States District Court for the District of Maryland,
ORDERED that the motion of deponents Aldama and Robinson to quash subpoenas or for a protective order is hereby denied.