Food Lion, Inc. v. Capital Cities/ABC, Inc.

Citations: 951 F. Supp. 1211; 25 Media L. Rep. (BNA) 1182; 1996 U.S. Dist. LEXIS 20848Docket: 1:12-m-00006

Court: District Court, M.D. North Carolina; November 8, 1996; Federal District Court

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Defendants in the case Food Lion, Inc. v. Capital Cities/ABC, Inc. objected to a Magistrate Judge's orders allowing the Plaintiff to conduct limited discovery on hidden camera investigations unrelated to Food Lion. The Magistrate Judge had been addressing discovery issues since April 1995, ultimately permitting the Plaintiff to investigate two such hidden camera inquiries. Despite Defendants' motions for reconsideration and objections to these orders, the Magistrate Judge affirmed the rulings. The allowed discovery is primarily depositional, focusing on specific factual predicates related to allegations of fraud and trespass, with no access to videotapes. ABC is required to identify three employees involved in each hidden camera investigation, who may then be deposed by Food Lion for two hours each. Document requests related to unauthorized entry and misrepresentation must also be fulfilled before these depositions.

The United States Magistrate Judge's order from October 21, 1996, identifies key issues related to potential fraud and trespass, which include (1) testimony on actions suggestive of fraud or trespass, such as falsifying identities and job skills; (2) documents supporting those actions, like false resumes and identification; and (3) testimony about the UFCW's involvement in facilitating fraud through deceptive practices during hidden camera investigations. The Magistrate Judge's orders are subject to review only for clear error or legal contradiction, and unless found to be contrary to law or clearly erroneous, they will be upheld.

The excerpt further discusses the journalist's privilege, originating from the Supreme Court's ruling in Branzburg v. Hayes, which concluded that journalists cannot refuse to answer relevant questions in valid grand jury investigations. However, the Court acknowledged the need for news-gathering protections to uphold freedom of the press. This led to the establishment of the journalist's privilege, primarily to protect confidential sources but later extended to nonconfidential information. Various circuit courts have addressed this privilege, confirming that it can apply to nonconfidential materials, as demonstrated in cases like United States v. Cuthbertson and others, where courts noted that compelled production of a journalist's materials can intrude upon their newsgathering and editorial processes.

The applicability of journalist's privilege in this case requires a careful assessment of competing interests, as the privilege is qualified and subject to a balancing test. The Fourth Circuit mandates this test to evaluate whether protection is warranted, which involves considering three factors: the relevance of the information, availability of alternative means to obtain it, and the compelling need for the information. This approach is rooted in the Supreme Court’s Branzburg v. Hayes decision, which emphasizes the need to balance press freedom with the obligation to provide relevant testimony regarding criminal conduct.

Additionally, the context of the journalist's actions, particularly if they involve unlawful behavior such as fraud or trespass, impacts the privilege's applicability. Courts have consistently affirmed that the press is not exempt from complying with generally applicable laws, as established in Cohen v. Cowles Media, which addressed the intersection of press freedom and legal accountability. The Supreme Court has articulated that the press does not enjoy special immunity from general laws and lacks a constitutional right to exclusive access to information unavailable to the public. The case of United States v. Sanusi illustrates the complexities that arise when a reporter's misconduct affects the legitimacy of discovery requests for information obtained through potentially wrongful means.

The Sanusi court ruled that CBS reporters committed trespass, which affected the evaluation of their newsgathering privilege under the Fourth Amendment. The court introduced a two-step test for determining if a journalist can resist a subpoena: first, a court must assess whether the litigant’s interest in obtaining the materials outweighs the First Amendment privilege; second, it must ensure the privilege is not being used to justify illegal conduct. In the current case, the plaintiff demonstrated a compelling need for the requested information, which is relevant to claims under the North Carolina Unfair and Deceptive Trade Practices Act, punitive damages, and ABC's intent regarding several of the plaintiff’s claims and ABC's defenses. The court found that the information sought pertains to intentional tortious activities by the defendants and is not obtainable from other sources, satisfying the three-part test established by the Fourth Circuit. 

Additionally, the court noted that even if the three-part test were not met, the nature of the discovery aimed at uncovering tortious conduct could negate the application of the privilege. Citing the Sanusi court, the opinion emphasized that the First Amendment should not shield unlawful behavior by the press. The Supreme Court has affirmed that the freedom of the press does not permit violations of other citizens’ rights. The court concluded that it is inappropriate for ABC to use the First Amendment privilege to obscure evidence of wrongdoing, asserting that the press must adhere to the same laws as the rest of society.

Defendants claim the ruling on discovery is unprecedented since it pertains to investigations unrelated to the Plaintiff. They argue that the relevance of the information to the Plaintiff's case complicates the situation, emphasizing that the Plaintiff cannot indiscriminately invade the Defendants' affairs. The ruling draws on precedent from the Sanusi case, which allowed discovery from a third-party witness, but here it is limited to the actions of a party in the case and specifically addresses two hidden camera investigations. 

The Order affirms the Magistrate Judge's previous rulings, allowing discovery related to potential tortious conduct by ABC's employees, while acknowledging the risk of encountering privileged information. To mitigate this, the Magistrate Judge will review documents and oversee depositions, which are limited to six and two hours each. If privileged information arises during questioning, the Magistrate Judge will determine its confidentiality outside the presence of the Plaintiff's counsel.

The court concluded that the journalist's privilege does not shield the limited discovery regarding the two hidden camera investigations from scrutiny, provided they involve tortious activities. The Orders from the Magistrate Judge were upheld as not being erroneous or contrary to law, and the parties are instructed to proceed with the relevant discovery. Notes clarify the definitions and limitations surrounding the discovery process and the journalist's privilege as understood in this context.