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REPLY BRIEF ISO MOTION TO QUASH AND FOR A PROTECTIVE ORDER
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LAW OFFICES OF KELLY AVILES KELLY AVILES (State Bar No. 257168) 1502 Foothill Blvd., #103-140 La Verne, California 91750 Telephone: (909) 991-7560 / Fax: (909) 991-7594 [email protected] Attorneys for Intervener/Cross-Petitioner VOICE OF ORANGE COUNTY.ORG and NORBERTO SANTANA
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF ORANGE, CENTRAL JUSTICE CENTER
VOICE OF ORANGE COUNTY.ORG,
Petitioner, vs. COUNTY OF ORANGE,
Respondent.
)))))))))))))))))) ) ) ) ) ) )
Case No. 30-2016-00841766-CU-WM-CJC Assigned to the Hon. Walter P. Shwarm, C-19 REPLY BRIEF IN SUPPORT OF MOTION TO QUASH THE DEPOSITION NOTICE OF NORBERTO SERVED AND FOR A PROTECTIVE ORDER; DECLARATION OF KELLY AVILES Date: November 1, 2016 Time: 1:30 p.m. Dept.: C-19 Action Filed: March 18, 2016
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I. SUMMARY OF REPLY
The County’s Opposition cavalierly describes its demand to depose the highest ranking
employee of Voice of OC, Publisher Norberto Santana, contravening media’s constitutional
protections, as ordinary discovery. It is anything but. It is both an assault on a free press
and retaliation for filing this lawsuit.
The County’s opposition fails to set out any cognizable argument as to why the
information it seeks from Norberto Santana is both relevant and admissible. Even if the
County had articulated some relevant and admissible need for the deposition, the Shield
Law and the Reporter’s Privilege would still defeat that argument. Our jurisprudence only
allows for intrusion into the newsgathering process in the rarest of cases - when necessary
to protect a competing constitutional interest, not present in this case.
The great irony of the County’s argument is that while it seeks to interrogate Mr.
Santana about information presumed to be confidential, it simultaneously tries to hide
information presumed to be disclosable. The only question at issue is whether the public
records requested by Voice of OC must be disclosed or are subject to an exemption. The
County’s baseless attempt to make this lawsuit about Mr. Santana’s reporting diverts
attention from the real issue and should not be permitted. This Court should quash the
deposition notice1 and issue a protective order preventing the deposition of Mr. Santana or
other members of the Voice of OC.
II. ARGUMENT
1. The County Has Made An Insufficient Showing To Support Its Unusual Discovery Demand
The County argues that most discovery is available as a matter of right, and requires
no showing of good cause or offer of proof. Opp. at 2, 10. First, this argument is undercut
by an admission hidden in the footnotes of the Opposition, correctly noting that “[t]he
1 The County argues that Petitioner’s motion to quash is procedurally improper because a deposition notice may only be quashed for defective service. (Opp. at 1, fn.1.) However, the text of the statute makes no such explicit limitation and, instead, specifically states that “a party may also move for an order staying the taking of the deposition and quashing the deposition notice” and that the “taking of the deposition is stayed pending the determination of this motion.” If the County actually thought the Voice of OC wrongfully filed for a motion to quash, it could have held the deposition, recorded Mr. Santana’s non-appearance, and moved to compel. It did not of those things. Regardless, Voice of OC has also filed for a protective order.
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court may also require the proponent of the discovery to make a prima facie showing.”
Opp. at 8, fn. 4. But more importantly, compelling a journalist to disclose information
gained in the course of his reporting is not typical discovery. See, e.g., Shoen v. Shoen
(Shoen I) (1993) 5 F.3d 1289, 1292 [“We start with the premise that pretrial discovery is
ordinarily "accorded a broad and liberal treatment….However, when facts acquired by a
journalist in the course of gathering the news become the target of discovery, a qualified
privilege against compelled disclosure comes into play.”]2
As set out in Petitioner’s Motion, the right to discovery is subject to the management
of the trial court exercising its sound discretion. See Greyhound Corp. v Superior Court
(1961) 56 Cal.2d 355, 382. Discovery must be reasonably calculated to lead to the
discovery of admissible evidence. (Code Civ. Proc., §2017.010.) The Court should limit the
scope of discovery if it determines that the burden, expense, or intrusiveness of that
discovery clearly outweigh the likelihood that the information will lead to the discovery of
admissible evidence. (Code Civ. Proc., §2017.020.)
The County alleges that it seeks to obtain information about conversations between Mr.
Santana and Mr. Spitzer to show that Mr. Santana was the puppeteer behind a correction
request from Spitzer to the OC Register regarding a story about the Spitzer’s citizen arrest.
According to the County, this was done to manufacture a public interest in the story for
Mr. Santana’s own pecuniary gain. But this ignores that there was already a huge public
interest in the story, which was covered by media throughout Southern California – not
just Voice of OC. And even if the County’s farfetched story was true, which it is not, it is
inadmissible. As explained in Los Angeles Unified School District v. Sup. Court (2014)
228 Cal.App.4th 222, 242:
2 The deposition of a reporter can be analogized to the deposition of opposing counsel, which is extremely disfavored because the procedure tends to disrupt the adversarial process, increase the time and cost of litigation, and potentially invade the work product and attorney-client privileges. Spectra-Physics, Inc. v Superior Court (1988) 198 Cal.App.3d 1487, 1493. "Depositions of opposing counsel are presumptively improper, severely restricted, and require 'extremely' good cause—a high standard." Carehouse Convalescent Hosp. v Superior Court (2006) 143 Cal.App.4th 1558, 1562. Similarly, a deposition of a reporter regarding his impressions, work production, sources, or information learned in the course of his reporting is so unlikely to reveal anything non-privileged, the Court should require more than the mere assertion that the deposition may lead to admissible evince before allowing it to proceed.
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“The motive of the particular requester in seeking public records is irrelevant (§ 6257.5), and the CPRA does not differentiate among those who seek access to them. (County of Santa Clara, supra, 170 Cal.App.4th at p. 1324, 89 Cal.Rptr.3d 374.) Moreover, the purpose for which the requested records are to be used is likewise irrelevant. (Connell, supra, 56 Cal.App.4th at pp. 616–617, 65 Cal.Rptr.2d 738.)…“ ‘What is material is the public interest in disclosure, not the private interest of a requesting party...’ [Citations.]” (Connell, supra, at pp. 616–617, 65 Cal.Rptr.2d 738.)
The County’s offer of proof falls short because the County makes no connection to show
how it the information is seeks would be admissible. As the LAUSD Court warned,
“[c]ourts must be alert to contentions by government entities that exaggerate the interest
in nondisclosure, lest they be used as a pretext for keeping information secret for improper
reasons, such as to avoid embarrassment over mistakes, incompetence, or wrongdoing.
LAUSD, 228 Cal.App.4th at 250.
To illuminate the absurdity of the County’s arguments, simply hypothesize that any
other person had made the same public records request at issue in this case. The County
could never then subpoena Mr. Santana or the Voice of OC to testify about conversations
Mr. Santana had with a source, or to force them to turn over unpublished information – all
to support the nonsensical argument that the press “manufactured” the public’s interest in
a news story.3 Voice of OC and its reporters should not lose their constitutional
protections simply for enforcing their constitutional rights.
Even if the County cannot mount a defense to its withholding of public records without
Mr. Santana’s testimony, that is not determinative of this issue. “Civil litigants do not have
a constitutional right to unrestricted discovery of relevant information…” Playboy
Enterprises, Inc. v. Superior Court (1984) 154 Cal.App.3d 14, 25. In a civil case, a court
may not balance the subpoenaing party’s interest in discovery against the journalist’s
state’s constitutional immunity, regardless of the purported relevance of the information
sought. Miller v. Superior Court (1999) 21 Cal.4th 883, 890. “Although research has
3 Creating a public interest in information that may have otherwise gone unnoticed is the way the media, and especially investigative news organizations like Voice of OC, function. As The Washington Post explained, “[w]e expend much of our energy on finding information of public interest that others don’t want published in a newspaper.” Robert Kaiser, More About Our Sources and Methods, The Washington Post, Mar. 15, 1998 at C1, C5 col. 2.
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revealed no reported case treating a conflict between the protection of article I, section 2,
and the fundamental interest of the state judicial system in promoting full discovery in
civil litigation, the recent legislative history of the newsperson's protection reflects a strong
interest in the Legislature and the people of this state to afford newspersons the highest
possible level of protection from compelled disclosure of confidential sources and
confidential information.” Playboy Enterprises, 154 Cal.App.3d at 27.4
Weighing against the County’s lacking offer of proof is the interest underlying both the
Shield Law and the First Amendment Reporter’s Privilege – the continued functioning of a
free press. One of the core principles of modern First Amendment jurisprudence is that
absent the need to vindicate a government interest of the highest order, the press should
be protected from compelled disclosure. Rooted in the First Amendment, the privilege is a
recognition that society's interest in protecting the integrity of the newsgathering process,
and in ensuring the free flow of information to the public, is an interest "of sufficient social
importance to justify some incidental sacrifice of sources of facts needed in the
administration of justice.'" Shoen I, 5 F.3d at 1292.
In United States v. La Rouche Campaign (1st Cir. 1988) 841 F.2d 1176, 1182, the Court
recognized four interests which warranted protection of unpublished information: “the
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.”5 In this case, all those same interests balance
4 The County now argues that the declaration of Mr. Santana attached to the moving papers provides an “independent basis” to support its deposition notice. See Opp. at 1, fn. 1. It does not. It provides the prima facie evidence to support the motion to quash and for a protective order. Under the County’s “independent basis theory, the media could never make that prima facie showing without then being subject to deposition. 5 The Reporters Committee for Freedom of the Press, published a study entitled, Agents of Discovery: a report on the incidence of subpoenas served on the news media in 2001. See https://www.rcfp.org/sites/ default/files/agents-of-discovery.pdf. They determined that 823 subpoenas were served on 440 responding news organizations during 2001. Id. at 4. Out of those organizations responding, 79 percent of broadcast media and 32 percent of print media reported receiving at least one subpoena in 2001. The organizations almost unanimously agreed that responding to subpoenas was a burdensome, and often aggravating, task, each draining time and money from the organizations budget. Id. Also, many organizations reported changing their retention practices so as not maintain unpublished information. Id.
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against the County’s purported need to compel disclosure. The La Rouche Court also
cautioned about what it considered a “lurking and subtle threat” to the vitality of a free
press if disclosure of nonconfidential information “becomes routine and casually, if not
cavalierly, compelled. Accord Playboy Enterprises, 154 Cal.App.3d at 27 [“If every civil
litigant who postulates that some information material to his case is contained within the
undisseminated materials of a newsperson may compel….disclosure, the protection
afforded newspersons would be greatly reduced, if not wholly vitiated.”]
Therefore, on balance alone, this Court should can and should limit discovery.
2. The County’s Arguments Against Application of the Shield Law And Reporter’s Privilege Lack Legal Support
The County makes many arguments that lack any legal support, misinterpret the cited
case law, or contravene existing law.
A. The purpose of the Shield Law is to prevent against compelled disclosure.
The County argues that the Shield Law only provides an immunity from contempt.
Opp., Sect. III, B. But this ignores that the purpose of the Shield Law is to prevent
compelled disclosure. Delaney v. Sup.Ct. (1990) 50 Cal.3d 785, 796; N.Y. Times Co. v.
Superior Court (1990) 51 Cal.3d 453, 457. It also ignores the practical realities of the
situation. The text of the Shield Law suggests that its protections are personal to the
holder. Los Angeles Memorial Coliseum Comm'n v. National Football League (1981) 89
F.R.D. 489, 494 (asserting that federal "journalist's privilege belongs to the journalist
alone and cannot be waived by persons other than the journalist"). Yet, the party to this
lawsuit is not Mr. Santana, but the Voice of OC. Since Mr. Santana is the holder of the
privilege, Voice of OC could not compel him to waive it, even if it wanted to. To sanction
Voice of OC for conduct outside of its control would be fundamentally unfair and
improper. Moreover, since Mr. Santana is not the party, the only remedy against him
would be contempt, which the Shield Law preempts. And while this Court could order him
to sit for the deposition and then hold him in contempt if he refuses, given the Shield Law
protections, it would seem to be an exercise in futility. This is the same reason that the
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media routinely move to quash subpoenas preemptively, instead of waiting idly by to be
held in contempt.
B. Neither Mr. Santana nor the Voice of OC has waived any of their rights.
The County makes a number of arguments about how the Voice of OC has waived any
privilege. First, it claims that by relying on Mr. Santana as a “percipient witness,” it can no
longer invoke its constitutional rights under the Shield Law and the First Amendment
Reporter’s Privilege. See Opp., III. A [ “Petitioner has waived any claims of privilege by
repeatedly relying on Santana as its Primary Percipient Witness.”] However, this
argument lacks any legal support, as is evidenced by the failure of the County to cite any
statutory or case law supporting its theory. This is likely because there is no case law that
says that when a reporter, acting in a newsgathering capacity, is forced to file a lawsuit to
compel the disclosure of wrongfully withheld public records, it eviscerates the reporter’s
constitutional protections. Adopting the County’s argument would mean that anytime a
news organization files suit to enforce its right to obtain wrongfully withheld public
records, it would be waiving its constitutional protections under the Shield Law and the
First Amendment based Reporters Privilege. This cannot and should not be the law.
Later the County argues that anytime “a reporter is a party to the litigation in a civil
case, disclosure is generally appropriate. (Mitchell, supra, 37 Cal.3d at pp. 279-80
[“[w]hen the journalist is a party, and successful assertion of the privilege will effectively
shield him from liability, the equities weigh somewhat more heavily in favor of
disclosure”].)” Opp. at 8. Yet, all cases where a reporter has been ordered to testify are
borne in a completely different procedural context – defamation actions - where
wrongdoing of the newspaper is alleged. As some courts have recognized, in defamation
actions where the plaintiff must prove actual malice, there is a greater interest in forcing
the testimony of a member of the media. Mitchell v. Sup.Ct., supra, 37 Cal.3d at 279-280.
Allowing the privilege in such cases might immunize news media against civil liability for
libel. Id. Plaintiff’s burden is to prove defendants acted with “actual malice,” and this may
be impossible if defendants can withhold identity of their informant. Thus, to allow the
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privilege in such cases might immunize news media against civil liability for libel. And
while the County has tried to make this about some alleged wrongdoing by the Voice of
OC, the Voice of OC is not on trial. On the contrary, it is the wrongdoing of the County
that is at issue.
Moreover, neither the Shield Law nor the Reporter’s Privilege are dependent on
whether the media is or is not a party. See Condit v. Nat'l Enquirer, Inc. (E.D. Cal. 2003)
289 F. Supp. 2d 1175, 1180 ["The cases do not find that the [reporter's] privilege goes away
merely because a publisher or a journalist is named in the civil action."]. See also Farr v.
Pitches, (9th Cir. 1975) 522 F.2d 464, 467 [the journalist's privilege protects against
compelled disclosure in all judicial proceedings.]
Similarly, the County argues that the deposition is proper because Mr. Santana put the
“communications between Santana and Spitzer directly at issue.” Opp., Sect. III. A. But
this argument misstates the basic nature of this case. Petitioner never put any alleged
communications between Mr. Spitzer and himself at issue; the County did that. The Voice
of OC merely requested public records in the course of its reporting on a story related to
Mr. Spitzer, an elected public official. When the County denied the request for those
records, citing the deliberative process, drafts, and the balancing test exemptions, Voice of
OC filed this lawsuit to challenge the denial. As discussed above, any alleged
communications between Mr. Santana and Mr. Spitzer are not an issue in this lawsuit and
are per se inadmissible to the underlying determination of whether the records must be
disclosed under the CPRA.6
Finally, the County argues that Mr. Santana has waived his constitutional protections
by publishing an editorial (Opp., Ex. 1) about the County’s frivolous attempt to depose
him. But nothing in the editorial disclosed any unpublished information. Nonpublished
6 The County also alleges (again with no factual support) that the fact that Mr. Santana verified the initial Petition, and the Editor David Washburn verified the First Amended Petition was an attempt to shield Santana from discovery. Opp. at 3-4. However, since both Mr. Santana and Mr. Washburn had sufficient personal knowledge to verify the original and First Amended Petition, the decision on who would verify it was made solely on the basis of who was available to review the petition at the time of filing. Moreover, Voice of OC would have made this motion regardless of which reporter, editor, or publisher the County was trying to depose in this lawsuit, as they all are protected by the Shield Law and Reporter’s Privilege.
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material retains its protection even after the story has been published. It makes no
difference that the published story purports to paraphrase or summarize the nonpublished
material. Playboy Enterprises, 154 Cal.App.3d at 23-24.
C. Mr. Santana’s declaration is prima facie evidence that the privileges apply.
The County claims that Mr. Santana is not entitled to protection because information
Mr. Santana has about Mr. Spitzer was gained outside of legitimate newsgathering
activities.7 As the California Supreme Court has noted, generally “a person claiming a
privilege bears the burden of proving he is entitled to the privilege. Delaney v. Sup.Ct.
(1990) 50 Cal.3d 785, 806, n.20. The declaration of Mr. Santana is sufficient to make this
prima facie showing (if even necessary.) 8 Once the prima facie showing is made, the
burden shifts to the requestor to make a showing required to overcome the Shield Law.
Delany at 806, n. 20. “[T]he offer of proof must set forth the substance and purpose of the
evidence. People v. Vasco (2005) 131 Cal.App.4th 137, 144 [even finding it insufficient for
the defendant to submit the questions he or she hopes to ask the reporter.] Here, the
County fails to provide any cognizable argument about how Mr. Santana’s alleged
conversations with Mr. Spitzer could be anything other than legitimate newsgathering.9
D. A source need not be confidential to be protected.
The County argues that the Shield Law and Reporter’s Privilege should not apply
because there is no “confidential” source. Opp. at 2, 6. This presumes that the County has
accurately determined that Spitzer is the “source.” But the County provides no evidence to
support this claim, merely presupposing it to be true. It is absurd to argue that because
the County has deemed the source to be Mr. Spitzer, that Mr. Santana must now testify to
7 See Opp. at 5 [“It is clear from the answers that Spitzer and Santana had numerous discussions…many of which did not take place in the context of Santana’s newsgathering activities.”] See further Opp. at 7 [“The mere fact that Santana is a journalist in and of itself does not give rise to any privilege, particularly where, as here, Santana was a percipient witness who was not directly engaged in gathering, receiving, or processing news during the time in question.”] 8 Some courts have found this showing unnecessary where reporters were the “holders of confidential information respecting the identity of their news source.” Thus, the threshold showing required in Delaney was unnecessary. See In re Willon (1996) 47 Cal.App.4th 1080, 1093. 9 Other attempts to characterize newsgathering as “illegitimate” have also failed. See O’Grady v. Sup.Ct. (Apple Computer, Inc.) (2006) 139 Cal.App.4th 1423, 1457 [noting that it could think of no workable test or principle that would distinguish ‘legitimate’ from ‘illegitimate’ news” and “decline[d] the implicit invitation to embroil ourselves in questions of what constitutes “legitimate journalism.”]
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that fact. Adopting such an argument would mean that anytime someone seeks to depose
the media about its sources, all it would need to do is guess, obligating the media to
confirm or deny whether the allegations were correct or not. Moreover, such an argument
ignores that the privileges do not just apply to “confidential” information, but to all
unpublished information. Delaney v. Sup.Ct., 50 Cal.3d at 805. The express language of
the statute “does not allow the conclusion that protection of unpublished materials or
information is dependent on the continued confidentially of the Source. Playboy
Enterprises, supra, 154 Cal.App.3d at 23.
3. The County Has Failed To Provide Any Evidence That Norberto Santana Has Any Unique Knowledge That Is Discoverable
The County argues that since Mr. Santana has “unique or superior personal knowledge
of discoverable information” he may be deposed without any showing of exhaustion of
less intrusive means of discovery. Even if the County were correct, the County cannot
make such a showing. First, there has been no evidence submitted that Mr. Santana has
any unique or superior personal knowledge. The County relies solely on conjecture about
conversations Mr. Santana may or may not have with Mr. Spitzer. The County has failed
to even submit a declaration from Mr. Spitzer in support of its baseless allegations.
Second, even if the County had submitted evidence supporting its allegations, that
information is neither discoverable (because of the Shield Law and the Reporter’s
Privilege) nor relevant because it relates only to the motive or private interest of the
requesting party which is per se irrelevant. (See further Petitioner’s Motion, pp. 10-12)
4. Sanctions Should Be Granted Against The County, Not Voice Of OC
The County has failed to make any cognizable argument about why the information Mr.
Santana may or may not possess is relevant and admissible. Even in the face of
overwhelming case law that contravenes the County’s position, it has refused to exhaust
any alternative sources of information, conduct less intrusive discovery, or attempt to
stipulate to facts that would alleviate the purported need for Mr. Santana’s deposition.
This conduct prevents any finding of good faith. Moreover, this conduct appears to be
retaliation for the filing on the instant action.
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Additionally, the county has not articulated why the amount requested by Ms. Aviles
for sanctions is “profoundly excessive,” as the County has alleged. Opp. at 12. As set out in
Ms. Aviles’s declaration attached to the Motion, Ms. Aviles spent 28.4 hours preparing the
opening brief. Ms. Leed’s declaration states that she spent roughly the same amount of
time, 20 hours, preparing the County’s opposition. Ms. Aviles has spent an additional 15.8
hours researching additional case law and preparing the reply brief, and estimates that she
will spend 4 hours preparing for the hearing, and approximately 2 hours traveling to and
attending the hearing on the motion. Nothing about Ms. Aviles’s time is excessive. And
while the County continues to argue that this is a routine discovery motion, Voice of OC
believes that it is an unprecedented assault on its newsgathering activity.
For the same reasons, the sanctions requested by the County are completely
unjustified. The constitutional issues raised alone provide substantial justification for the
Voice of OC's motion. Filing for a protective order was the quickest and most economical
avenue to a resolution of the fundamental disagreements between the County and Voice of
OC as to the County’s continued instance that Mr. Santana may be deposed. Showing up
for the deposition, just to object to the County’s questions on the same basis as set forth
herein, and in the motion, would have been an exercise in futility, further delaying
resolution of this issue and of the ultimate issues in the case.10 Nor would the stipulation
that the County now offers resolve the underlying issues since there is clearly a
disagreement about what information is subject to subject to the Reporter’s Privilege and
the Shield Law.
DATED: October 25, 2016 LAW OFFICES OF KELLY AVILES ______________________ Kelly Aviles
Attorney for Petitioner VOICE OF ORANGE COUNTY.ORG
10 The County seems to infer that Voice of OC delayed the hearing date in this case. But this motion was filed for the first available hearing date that did not conflict with Petitioner’s counsel’s preexisting hearing and briefing schedules in other matters and preplanned vacation. That date just happened to be November 1. Moreover, the only party benefiting from a delay is the County. As long as it can delay a hearing on the merits, it is not faced with turning over the records at issue in this case. The Voice of OC receives no similar benefit.
- 1 - DECLARATION OF KELLY AVILES
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Declaration of Kelly Aviles
I, Kelly Aviles, declare and state as follows:
1. I am an attorney duly licensed to practice law before all of the courts of the
State of California, and I am the owner and principal of the Law Offices of Kelly Aviles,
counsel for Petitioner VOICE OF ORANGE COUNTY.ORG, in the above-entitled action.
The facts stated in this Declaration are true and correct of my own personal knowledge,
except for those matters expressly stated on information and belief, which matters I believe
to be true. If called as a witness, I could and would competently testify thereto.
2. My currently hourly rate is $400 per hour. As of today’s date, I have spent a
total of 28.4 hours objecting to the deposition, meeting and conferring with opposing
counsel, and when unsuccessful, preparing this motion. Since filing the Motion, I have
spent an additional 15.8 hours researching additional case law and preparing the reply
brief. I also estimate that I will spend an additional 4 hours preparing for the hearing and
2 hours traveling to and attending the hearing.
I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct and that this Declaration was executed on October 25, 2016,
at La Verne, California.
Kelly Aviles
