Mark v. Shoen v. Leonard Samuel Shoen, Edward J. Shoen v. Leonard Samuel Shoen, Ronald J. Watkins

This appeal presents the question whether an investigative author, at work on a forthcoming book, may be compelled to testify and produce notes and tape recordings of interviews he conducted with a source who happens to be a defendant in a defamation action. We hold, under the circumstances of this ease, that he may not.

I

Appellant Ronald Watkins is an investigative author of books on topical and controversial subjects. He became involved in this defamation action because of his work on a forthcoming non-fiction book about a long and bitter family feud over control of the highly successful U-Haul Company — a feud pitting the patriarch of the family and founder of U-Haul, Leonard Shoen, against two of his sons, Mark and Edward Shoen. In the midst of these family quarrels, Eva Berg Shoen, the wife of Leonard’s eldest son Sam, was found brutally murdered in her family’s log cabin in Telluride, Colorado. The murder remains unsolved.

Following Eva’s murder, Watkins, the author of two previous investigative books on issues of current interest, 1 secured a contract with a major publisher to write a book about the Shoen family, its battles over control of U-Haul, and the murder of Eva…

concurring:

I concur in the result reached by the majority, that the subpoena duces tecum on Mr. Watkins, should have been quashed. I would reach this result on a nonconstitutional ground, Federal Rule of Civil Procedure 26(b).

We traditionally avoid deciding cases on constitutional grounds where nonconstitu-tional grounds lead to the same conclusion. “Fundamental principles of judicial restraint require federal courts to consider nonconsti-tutional grounds for decision prior to reaching constitutional questions.” Erickson v. United States, 976 F.2d 1299, 1301 (9th Cir.1992) (citing Jean v. Nelson, 472 U.S. 846, 854 , 105 S.Ct. 2992, 2997 , 86 L.Ed.2d 664 (1985)). A constitutional ground for the decision removes the matters decided from democratic control. State legislatures and Congress have frequently considered various testimonial privileges over the last two or three decades. The legislature and governor of Arizona have promulgated a statute, A.R.S. § 12-2237, 1 carefully delineating the scope of reporters’ testimonial privileges in a way which does not protect Watkins. See Matera v. Superior Court, 825 P.2d 971 (Ct.App.1992); 2 see also, A.R.S. § 12-2214 (governing subpoena…

5 F.3d 1289 62 USLW 2212 , 26 Fed.R.Serv.3d 1117 , 21 Media L. Rep. 1961 Mark V. SHOEN, Plaintiff-Appellee, v. Leonard Samuel SHOEN, et al., Defendants. Edward J. SHOEN, Plaintiff-Appellee, v. Leonard Samuel SHOEN, et al., Defendants. Ronald J. Watkins, Appellant. No. 92-16573. United States Court of Appeals, Ninth Circuit. Argued and Submitted Dec. 16, 1992. Decided Sept. 27, 1993. Gloria C. Phares, Weil, Gotshal & Manges, New York City, and Guy Bradley Price, Phoenix, AZ, for appellant Watkins. Richard M. Amoroso, Cohen and Cotton, Phoenix, AZ, for appellee Mark Shoen. Russell Piccoli, Phoenix, AZ, for appellee Edward Shoen. Appeal from the United States District Court for the District of Arizona. Before NORRIS, BEEZER, and KLEINFELD, Circuit Judges. WILLIAM A. NORRIS, Circuit Judge: 1 This appeal presents the question whether an investigative author, at work on a forthcoming book, may be compelled to testify and produce notes and tape recordings of interviews he conducted with a source who happens to be a defendant in a defamation action. We hold, under the circumstances of this case, that he may not. 2 * Appellant Ronald Watkins is an investigative author of books on…