Wen Ho Lee v. Department of Justice, Jeff Gerth

Citations: 413 F.3d 53; 367 U.S. App. D.C. 53; 33 Media L. Rep. (BNA) 2096; 2005 U.S. App. LEXIS 12758Docket: 04-5301, 04-5302, 04-5321, 04-5322, 04-5323

Court: Court of Appeals for the D.C. Circuit; June 28, 2005; Federal Appellate Court

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Five journalists appealed a District Court ruling holding them in contempt for refusing to disclose confidential sources during a deposition related to a civil case concerning Dr. Wen Ho Lee. The journalists argued that the District Court misapplied precedent from *Zerilli v. Smith*, which protects a journalist's qualified privilege to maintain source confidentiality. The Court of Appeals affirmed the contempt ruling for four of the five journalists, finding no abuse of discretion by the District Court. However, it reversed the contempt ruling against Jeff Gerth due to insufficient evidence. 

The case background involves Dr. Wen Ho Lee, who worked for the Department of Energy from 1978 to 1999 and was investigated for espionage between 1996 and 1999. He faced 59 counts of mishandling classified information, ultimately resolving the case through a plea agreement that included one guilty plea. Lee subsequently filed a Privacy Act lawsuit against the DOE, DOJ, and FBI, accusing them of unlawfully disclosing personal information to the media. The investigation was first reported by the Wall Street Journal and later by the Washington Post, with Gerth and James Risen publishing a detailed article in the New York Times that indirectly referenced Lee. The Privacy Act allows individuals to seek damages from government agencies for improper disclosures.

On March 8, network news stations first broadcast Wen Ho Lee's name, followed by an article by Appellant Josef Hebert for the Associated Press. On March 9, the Times published an article by Risen naming Lee and discussing a lie detector test indicating deception. The Los Angeles Times published an article by Appellant Bob Drogin the same day, detailing the investigation without naming Lee, but on March 14, Drogin identified him in a related article. The investigation later shifted from espionage to mishandling computer files, reported on April 28, 1999, in a Times article by Risen and Gerth, which included allegations that Lee had improperly downloaded nuclear weapon codes to an unsecured computer. Appellant Pierre Thomas published a similar article on CNN that day, naming Lee and outlining the new focus of the investigation. On April 29, Drogin reported an unnamed government source predicting Lee's imminent arrest by the FBI.

Lee filed a lawsuit against the DOE, FBI, and DOJ on December 20, 1999, claiming unlawful disclosures that harmed his reputation and distracted from the agencies' security failures. He alleged that leaked information included personal and employment details of both him and his wife, investigation specifics, and polygraph test results. Lee sought at least $1,000 for each Privacy Act violation, along with attorneys' fees. Discovery began on July 31, 2001, during which Lee made over 420 written requests that were mostly met with assertions of law enforcement privilege. He deposed key DOE officials, including former Secretary Bill Richardson and Acting Director Notra Trulock, but none could identify the source of the leaks. Lee also deposed DOJ and FBI officials without success in tracing the leaks. In August 2001, Lee subpoenaed Appellants Risen, Gerth, Drogin, Hebert, and Thomas for documents and testimony regarding the leaks; the journalists objected and sought to quash the subpoenas. On October 9, 2003, the District Court denied the motions to quash and ordered the journalists to testify about the identity and nature of the information they received regarding Lee.

The court's conclusion relied on the precedent set by Zerilli v. Smith, which established guidelines for balancing First Amendment rights with a litigant's need for information when subpoenaing a non-party journalist in civil cases. The two key guidelines from Zerilli stipulate that: (1) the information sought must be central to the case, not merely marginally relevant, and (2) the plaintiff must have exhausted all reasonable alternative sources of information to prevent journalists from being used as a default source. The District Court determined that Lee satisfied both guidelines, finding the information crucial and demonstrating that all reasonable alternatives were pursued, evidenced by evasive responses in depositions and the use of various tactical devices outlined in the Federal Rules of Civil Procedure.

Following the journalists' depositions, where they refused to answer certain questions, the District Court held them in contempt, imposing a fine of $500 per day, stayed pending appeal. The appeals that followed centered on the argument that the First Amendment and federal common law protect journalists from disclosing confidential sources under compulsion to testify. The existence and scope of such a privilege have been contentious. In Branzburg v. Hayes, the Supreme Court denied the existence of a constitutional privilege for journalists to withhold the identity of sources in grand jury investigations. Although the Supreme Court's ruling appeared to negate any such privilege, the court in this case noted that its application may be limited to criminal contexts, suggesting that a potential privilege could exist in civil actions, as indicated in Carey v. Hume, where the court compelled a journalist to identify sources in a libel case.

The document addresses the legal framework surrounding the compelled disclosure of a journalist's confidential sources, emphasizing that there is no absolute First Amendment barrier to such disclosure. While the case of Zerilli established a qualified reporter's privilege in civil actions, it also clarified that this privilege is not absolute and must be weighed against the interests of civil litigants. The District Court's compliance with Zerilli's guidelines in holding the Appellants in contempt is under scrutiny.

The parties disagree on the standard of review for the Discovery and Contempt Orders. Lee advocates for an abuse of discretion standard, as established in Zerilli and Carey, which both dealt with journalist privilege cases. Conversely, the Appellant journalists argue for de novo review based on the Supreme Court's language in Bose v. Consumers Union, asserting that appellate courts must independently examine cases involving First Amendment issues.

The analysis distinguishes this case from Bose, stating that it does not involve a threat to free expression, as it focuses on a discovery order rather than a final judgment affecting free speech rights. The Supreme Court's ruling in Seattle Times Co. v. Rhinehart further clarifies that heightened First Amendment scrutiny does not apply to discovery orders, asserting that trial courts are best positioned to balance the competing interests involved. Therefore, the precedent set by Zerilli remains intact, mandating that the standard of review is whether the trial court abused its discretion.

The doctrine of independent review applies in cases like Bose and Sullivan, which involve free expression claims, but this case focuses on discovery orders similar to those in Seattle Times, Zerilli, and Carey. Under these precedents, the court reviews legal rulings de novo while deferring to the trial court's discretion in balancing relevant factors. Appellants sought to appeal the Discovery Order directly but were denied, leading them to appeal the Contempt Order. This review includes evaluating whether the journalist's privilege is applicable. The court will assess if the trial court abused its discretion regarding the Discovery Order's ruling that the journalist's privilege does not protect the Appellants, as well as whether there was clear and convincing evidence of contempt.

Zerilli establishes a non-party journalist's qualified privilege in civil actions where testimony is sought due to potential illegal conduct by government officials. To compel a journalist to testify, the information must be central to the case and all reasonable alternative sources must be exhausted. However, this privilege is not absolute, as the Supreme Court indicated that it does not protect concealment of criminal conduct. Although protections under the Privacy Act persist even when information is leaked to journalists, journalists still must meet relevance, need, and limited burden requirements.

Applying the Zerilli factors, the court found no abuse of discretion in requiring journalists to testify. The information sought is essential to the case, specifically the identities of individuals who may have leaked information in violation of the Privacy Act. Without this information, the appellant's ability to establish key elements of their claim would be compromised, as the journalists have withheld even the identities of their sources’ employers, which could have supported the claim. The court noted that while it might be possible to succeed in a libel claim without knowing the identities of parties, success in this case is unlikely under similar circumstances.

Appellants argue that requiring their testimony would be redundant if others testify, but this claim is unsupported as each may have unique information. Additionally, some Appellants suggest that a precedent requires a significant number of depositions, citing Supreme Court and lower court cases. Specifically, they reference In re Roche inaccurately, asserting it mandates 65 depositions for exhaustion before compelling a journalist to disclose sources; however, Roche is a single justice's stay opinion, not a Supreme Court ruling, and does not stipulate such a requirement. They also cite Zerilli, which discusses the number of depositions as a reasonable expectation rather than a strict rule, emphasizing that exhaustion must be evaluated on a case-by-case basis. The court has discretion in determining exhaustion, and the Appellants’ lengthy list of potential deponents illustrates an unreasonable discovery burden they seek to impose. Ultimately, the District Court's decision regarding exhaustion is deemed appropriate within its discretion.

The list includes all individuals who may have accessed the information, despite evidence indicating that the deponents highlighted by Lee were the actual sources of the leaks and denied involvement. The Court referenced Carey, emphasizing that litigants should not bear extensive discovery burdens in unclear circumstances. Lee has exhausted alternatives more effectively than the plaintiff in Zerilli and similarly to successful plaintiffs in Garland and Carey.

Regarding the Contempt Order, the review focuses on whether the District Court abused its discretion in determining "clear and convincing evidence" of violations by each contemnor. The court mandated journalists to testify about the identity of any defendants' officers or agents who provided information about Wen Ho Lee. For Appellants Risen, Hebert, Drogin, and Thomas, the court's actions are upheld, while Gerth's ambiguity leads to a different conclusion.

Specifically, for James Risen, the evidence demonstrates contempt, as he invoked privilege multiple times to avoid revealing critical information about sources and testimonies related to Lee. His refusals included questions about whether Secretary Richardson disclosed Lee's identity or related information, the accuracy of congressional testimony regarding leaks to him, and the identity of sources discussing sensitive topics related to Lee. Risen expressed intent to withhold information about his confidential sources, supporting the District Court's finding of contempt for violating the Discovery Order.

Josef Hebert violated the Discovery Order by refusing to answer 24 questions regarding his interviews, communications with FBI employees, and the identities of individuals related to the Wen Ho Lee case. The District Court identified specific questions about his interactions with FBI and Department of Energy employees that were covered by the order, and Hebert did not contest their relevance. Consequently, the District Court's contempt finding against Hebert is upheld.

Bob Drogin invoked the privilege eight times but clearly violated the Discovery Order by not disclosing communications with Secretary Richardson and other individuals regarding the Lee case. He often provided unresponsive answers about his sources, asserting a lack of recall, but in one instance, he refused to name a source, which breached the Discovery Order requiring him to identify individuals providing information about Wen Ho Lee. His statements indicated an intention not to fully comply. Thus, the contempt finding against Drogin is upheld.

Pierre Thomas invoked the privilege less frequently but still refused to answer questions encompassed by the Discovery Order, including his interactions with FBI officials and the identities of his sources. Specifically, he declined to provide the name of a source related to sensitive information about nuclear files and the FBI investigation. Thomas confirmed during his deposition that he intended not to disclose his confidential sources, which supports the District Court's contempt ruling against him.

Appellant Jeff Gerth did not refuse to answer questions as per the Discovery Order and claimed ignorance regarding the identities of sources that provided information about Wen Ho Lee. Consequently, the District Court's contempt ruling was deemed an abuse of discretion, as it lacked a clear violation of a court order. During a 127-page deposition, Gerth invoked the privilege only once, acknowledging communication with off-the-record sources about the Wen Ho Lee case, which was broadly defined by opposing counsel to include all reporting related to Lee from January 1999 to the end of 2000. However, Gerth refrained from disclosing whether these sources included FBI employees and maintained that he did not know the identities of any sources who specifically informed articles he co-authored with Risen about Lee.

The District Court dismissed Gerth's claims of ignorance, citing his admission of using off-the-record sources as contradictory. However, the court recognized that if Gerth's assertions were truthful, contempt would not be justified. The Discovery Order only required the disclosure of sources providing direct information about Wen Ho Lee, not related cases or background information. Gerth's later statements about not revealing confidential sources referenced material too broad to constitute a clear violation of the Discovery Order. Ultimately, the contempt order against Gerth was vacated, while the order against other appellants was upheld. The document also notes that distinctions regarding the journalist's privilege between civil cases where the reporter is a party and cases where they are not were not addressed, as all journalists involved were non-parties. Additionally, issues concerning the federal common law claim and the extent of the journalist's qualified privilege were not discussed.