California by statute, Cal. Evid. Code §1070, and by constitutional amendment, Cal. Const. art. I, § 2(b), provides that a publisher, editor, reporter, or other person connected with or employed upon a newspaper shall not ("cannot" in Evid. Code) be adjudged in contempt for refusing to disclose the source of any information procured while so connected or employed for publication in a newspaper or for refusing to disclose any unpublished information.
Petitioners, David and Mitchell, wrote articles suggesting that The Synanon Church’s (hereinafter, Synanon) rehabilitation work was minimal; the article further asserted that the Church’s claims of success were fraudulently made to enrich themselves. The aforementioned article induced Synanon to institute a libel case against the petitioners, alleging that petitioners conspired to write false, malicious, and defamatory articles. Accordingly, Synanon filed a discovery request, which the trial court granted, requiring petitioners to produce documents revealing confidential sources of information. Petitioners sought a writ of prohibition to prevent enforcement of the discovery order, contending that their source was privileged.
Are the documents revealing confidential sources privileged, thus, cannot be the object of discovery?
The Supreme Court issued a writ of prohibition restraining the superior court from enforcing the order insofar as it required the reporters to produce documents which revealed confidential sources or information furnished by such sources. The Court held that, in a civil action, a reporter, editor, or publisher has a qualified privilege to withhold disclosure of the identity of confidential sources and of unpublished information supplied by such sources, and that the scope of that privilege in each particular case depends on the consideration and weighing of a number of interrelated factors: the nature of the litigation and whether the reporter is a party; the relevance of the information sought to the plaintiff's cause of action; the plaintiff's exhaustion of all alternative sources of obtaining the needed information; the importance of protecting confidentiality in the case at hand; and, in a libel action, the existence of a prima facie showing that the alleged defamatory statements are false. In the case at bar, the balance of relevant factors were against discovery. According to the Court, although the litigation (a civil action for libel) was of the type suitable for requiring disclosure, and although discovery of the reporters' sources, and information derived from such sources, might be essential to proving actual malice, thus going to "the heart" of Synanon's claim, the discovery sought by Synanon was quite broad and was not limited to sources whose information related to the allegedly libelous statements. The Court further averred that Synanon made no showing that they had exhausted alternative sources of information, and there was no prima facie showing that the alleged defamatory statements were false.