Mark v. Shoen Edward J. Shoen v. Leonard Samuel Shoen Christina G. Shoen, Ronald J. Watkins, Witness-Appellant
Opinion
Opinion
48 F.3d 412 31 Fed.R.Serv.3d 407 , 23 Media L. Rep. 1522 Mark V. SHOEN; Edward J. Shoen, Plaintiffs-Appellees, v. Leonard Samuel SHOEN; Christina G. Shoen, et al., Defendants, Ronald J. Watkins, Witness-Appellant. No. 94-16533. United States Court of Appeals, Ninth Circuit. Argued and Submitted Oct. 17, 1994. Decided Feb. 15, 1995. Guy Bradley Price, Phoenix, AZ, for appellant Watkins. Richard M. Amoroso, Piccoli & Myers, Phoenix, AZ, for appellee Mark Shoen. Russell Piccoli, Piccoli & Myers, Phoenix, AZ, for appellee Edward Shoen. Daniel C. Barr and Shirley A. Kaufman, Brown & Bain, Phoenix, AZ, for amicus curiae First Amendment Coalition of Arizona. Jane E. Kirtley, Washington, DC, for amicus curiae The Reporters Committee for Freedom of the Press. Thomas H. Howlett, Ross, Dixon & Masback, Washington, DC, for amicus curiae Newsletter Publishers Ass'n. David J. Bodney and Peter B. Swann, Steptoe & Johnson, Phoenix, AZ, for amicus curiae Arizona Newspapers Ass'n, Radio-Television News Directors Ass'n, and Ass'n of American Publishers. Appeal from the United States District Court for the District of Arizona. Before: BROWNING, FARRIS and LEAVY, Circuit Judges.…
lead Opinion
Farris, J.
Opinion by Judge FARRIS; Dissent by Judge LEAVY.
Ronald J. Watkins appeals from the district court judgment holding him in contempt for refusing to produce audio tapes and other materials pursuant to a discovery request in the underlying defamation lawsuit. Watkins contends that the journalist’s privilege against compelled disclosure of research material shields him from plaintiffs’ discovery requests. We have jurisdiction under 28 U.S.C. §§ 1291 and 1826(a). We reverse.
BACKGROUND
The Shoen family owns and operates the highly successful U-Haul Corporation. Watkins, an author of investigative books, recently published Birthright, which chronicles the bitter feud within the Shoen family for control of U-Haul. It also details the events surrounding the death of Eva Berg Shoen, who was brutally murdered at the family’s cabin in Telluride, Colorado.
A primary source for the book was Leonard Shoen, the family patriarch and founder of U-Haul. In exchange for several in-depth interviews, Watkins agreed that Leonard Shoen would receive a percentage of book royalties and proceeds from any sales of movie rights.
Prior to his interviews with Watkins, Leonard Shoen made at least 29…
dissent Opinion
Leavy, J.
dissenting:
Ronald Watkins (“Watkins”) argues that he should be allowed to interpose a qualified privilege to block the plaintiffs from examining evidence which they claim is critical to their case. Despite the fact that (1) Watkins’ source, Leonard Shoen (“Shoen”), was a paid, nonconfidential informant who never insisted that the evidence he provided be kept secret; (2) much of what Shoen told Watkins is now a matter of public record; and (3) the plaintiffs have been frustrated in their efforts to obtain this information in any other way, the majority concludes that Watkins’ assertion of this qualified privilege should act as an absolute bar to the plaintiffs. I must respectfully dissent.
The majority adopts a three-prong test for determining whether, and under what circumstances, the assertion of a journalist’s qualified privilege must yield to a discovery request for 'nonconfidential information possessed by the journalist. Specifically, a party seeking discovery must now show that the evidence sought is (1) practically unavailable from any other source; (2) noncumulative; and (3) clearly relevant to an important issue in the litigation. See maj. op. at 415-416.