1998 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-6-1998

Titan Sports Inc v. Turner Broadcasting

Precedential or Non-Precedential:

Docket 97-3267

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Recommended Citation

"Titan Sports Inc v. Turner Broadcasting" (1998). 1998 Decisions. Paper 185.

http://digitalcommons.law.villanova.edu/thirdcircuit_1998/185
Filed August 6, 1998 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

No. 97-3267 

IN RE: MARK MADDEN 

TITAN SPORTS, INC., A Delaware Corporation 

v. 

TURNER BROADCASTING SYSTEMS, INC.; WORLD 

CHAMPIONSHIP WRESTLING, INC.; ERIC BISCHOFF 

TITAN SPORTS, INC., 

 Appellant 

On Appeal from the United States District Court 

For the Western District of Pennsylvania 

(D.C. Civil No. 96-MC-00681) 

Argued December 9, 1997 

Before: NYGAARD, ALITO and LAY,* 

Circuit Judges 

(Amended Opinion Filed: August 6, 1998) 

_________________________________________________________________ 

*The Honorable Donald P. Lay, Senior United States Circuit Judge for 

the United States Court of Appeals for the Eighth Circuit, sitting by 

designation. 
 Robert L. Byer, Esq. (Argued) 

 Jerry S. McDevitt, Esq. 

 Paul K. Stockman, Esq. 

 Kristen M. Del Sole, Esq. 

 Kirkpatrick and Lockhart 

 1500 Oliver Building 

 Pittsburgh, Pennsylvania 15222 

 Counsel for Appellant 

 David Dunn, Esq. 

 John H. Pope, Esq. (Argued) 

 Davis, Scott, Weber & Edwards 

 100 Park Avenue - 32nd Floor 

 New York, New York 10017 

 Counsel for Appellees 

AMENDED OPINION OF THE COURT 

NYGAARD, Circuit Judge. 

The issue on appeal is whether the district court erred by 

concluding that Mark Madden, a nonparty witness in this 

civil matter, is entitled to claim a journalist's privilege. We 

hold that he is not and will reverse. 

I. 

We will summarize only those facts necessary to give 

context to the issue. Appellant Titan Sports, Inc., and its 

competitor, Turner Broadcasting Systems (TBS), are the 

most prominent professional wrestling promoters in the 

United States. TBS's "World Championship Wrestling"

(WCW) has challenged Titan's "World Wrestling Federation" 

(WWF) to engage in "interpromotional events," wherein 

WCW wrestling personalities would compete with WWF 

personalities. Titan has refused to permit any of its 

wrestlers to engage in the activities. 

Titan sued TBS in the United States District Court for the 

District of Connecticut alleging unfair trade practices, 

copyright infringement and other pendent state law claims, 

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none of which are germane to this appeal. Titan Sports Inc. 

v. Turner Broadcasting Systems, Inc., No. 396-cv-01139 (D. 

Conn.) (the Connecticut action). As part of the discovery 

process in the Connecticut action, however, Titan issued a 

subpoena to take the deposition of Mark Madden, a 

nonparty witness who is employed by WCW, and resided in 

the Western District of Pennsylvania. 

WCW employs Madden to produce tape-recorded 

commentaries, which are replayed to callers on WCW's 900- 

number hotline. These commentaries promote upcoming

WCW wrestling events and pay-per-view television 

programs, announce the results of wrestling matches and 

discuss wrestlers' personal lives and careers. Madden 

asserts that in the course of preparing statements for the 

WCW hotline, he receives information from confidential 

sources. He admits, however, that his announcements are 

as much entertainment as journalism. 

During a deposition, Madden refused to identify the

sources of certain of his allegedly false and misleading 

statements recorded for the WCW's 900-number hotline. 

Madden, through counsel, invoked a "journalist's privilege" 

and the protection of the Pennsylvania Journalist's Shield 

Law, 42 Pa. Cons. Stat. Ann. S 5942.1 Titan filed a "Motion 

to Enforce Subpoena and Otherwise Compel Discovery by a 

Nonmoving Party." After Titan moved to enforce the 

subpoena, counsel for Madden and the WCW interposed

the qualified federal common law privilege which protects 

journalists from revealing their confidential sources. 

The district court denied Titan's motion insofar as it 

sought to compel Madden to identify the sources from 

which he got information for his commentaries. The district 

court concluded that Madden was a "journalist" with

standing to assert the privilege because he intended to 

disseminate information to third parties. The district court 

also held that Madden's interest in protecting his sources 

was not outweighed by the need for disclosure. Titan now 

appeals. 

_________________________________________________________________ 

1. The district court's opinion concerned only the federal privilege. The 

applicability of the Pennsylvania law is not appealed. 

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II. 

The somewhat unusual procedural posture of this case 

requires that we discuss briefly our jurisdiction to hear this 

appeal. We have jurisdiction over "all final decisions of the 

district courts. . ." 28 U.S.C. S 1291.2 A final decision of a 

district court means, with limited exceptions, an order that 

ends the litigation on the merits and leaves nothing for the 

district court to do but execute the judgment. Coopers & 

Lybrand v. Livesay, 437 U.S. 463, 467, 98 S. Ct. 2454, 

2457 (1978). Ordinarily, a pretrial discovery order such as 

this one is not considered final. Enprotech Corp. v. Renda, 

983 F.2d 17, 20-21, (3rd Cir. 1993), (an order denying a 

pretrial civil discovery motion to compel production of a 

document was not final and appealable). The typical

remedy for one aggrieved by an order denying a discovery 

request is to await final judgment before appealing. Id. 

The order appealed from in this case is not a typical 

discovery order. Although it relates to discovery and the 

deposition of a nonparty witness, it was not entered by the 

district court where the case was filed and is currently 

pending. The district court for the District of Connecticut 

will ultimately rule on the merits, and an appeal from its 

final judgment will be heard by the Court of Appeals for the 

Second Circuit. Other courts have recognized an"exception 

to the nonfinality of discovery orders where a district court, 

other than the district court before which the main action 

is pending, issues an order denying discovery against a 

nonparty." Hooker v. Continental Life Insurance Co., 965 

F.2d 903, 905 (10th Cir. 1992); citing Truswal Sys. Corp. v. 

Hydro-Air Eng'n, Inc., 813 F.2d 1207, 1209 (Fed. Cir. 1987).3 

The premise for this exception is that these orders involve 

_________________________________________________________________ 

2. In pertinent part, 28 U.S.C. S 1291 provides that "the courts of 

appeals shall have jurisdiction of appeals from allfinal decisions of the 

district courts of the United States . . . ." 

3. When an ancillary district court enters an order against a nonparty 

which compels discovery, such an order is not immediately appealable, 

leaving the nonparty with the option to either comply with the discovery 

order or submit to contempt proceedings from which the nonparty may 

then appeal. See Hooker, 965 F.2d at 905 n.1 (citing Federal Trade 

Comm'n v. Alaska Land Leasing Inc., 778 F.2d 577, 578 (10th Cir. 

1985)). 

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nonparties and are issued by district courts other than the 

one in which the principal action is pending, thereby 

eliminating any avenue for effective appellate review. 

We agree with this premise but believe, rather than as an 

exception, finality for purposes of our jurisdiction in this 

circumstance is determined more directly by asking 

whether the aggrieved entity has any means, other than an 

immediate appeal before us, to obtain appellate review of 

the district court's decision. For Titan, the answer is no, 

because the Court of Appeals for the Second Circuit does 

not have jurisdiction to review this order of the Western 

District of Pennsylvania. Were we to reject jurisdiction, 

appellate review of this order would be impossible.

Consequently, because we are the only forum that may 

review the decision, we deem it final and conclude that we 

have jurisdiction under 28 U.S.C. S 1291 to review it. 

III. 

The decision we review is the district court's order 

granting a journalist's privilege to Madden. The issue is 

whether he has status as a journalist to invoke the

protections of the privilege. We conclude that he does not. 

Because this is a purely legal question, our review is 

plenary. Bradgate Assoc. v. Fellows, Red & Assoc., 999 

F.2d 745, 749 (3d Cir. 1993). We note at the outset that 

testimonial exclusionary rules and privileges are not 

favored. Indeed, the Supreme Court has not shown 

enthusiasm for the creation of constitutional privileges 

because these privileges "contravene a fundamental 

principle of our jurisprudence that the public has a right to 

every man's evidence." United States v. Bryan, 339 U.S. 

323, 331, 70 S. Ct. 724, 730 (1950). Such privileges should 

not be "lightly created or expansively construed, for they 

are in derogation of the search for truth." United States v. 

Nixon, 418 U.S. 683, 710, 94 S. Ct. 3090, 3108 (1974). 

Pretrial discovery is therefore, "accorded a broad and liberal 

treatment." Hickman v. Taylor, 329 U.S. 495, 507, 67 S. Ct. 

385, 392 (1947). If no claim of privilege applies, a non-party 

can be compelled to produce any matter "relevant to the 

subject matter involved in the pending action" or 

 5 
"reasonably calculated to lead to the discovery of admissible 

evidence." Fed. R. Civ. P. 26(b)(1). 

Nonetheless, we have recognized that when a journalist, 

in the course of gathering the news, acquires facts that 

become a target of discovery, a qualified privilege against 

compelled disclosure appertains. Riley v. City of Chester, 

612 F.2d 708 (3d Cir. 1979) (journalist's privilege for civil 

cases); United States v. Cuthbertson, 630 F.2d 139 (3d Cir. 

1980) (journalist's privilege for criminal cases). Premised 

upon the First Amendment, the privilege recognizes 

society's interest in protecting the integrity of the 

newsgathering process, and in ensuring the freeflow of 

information to the public. It is an interest of "sufficient legal 

importance to justify some incidental sacrifice of sources of 

facts needed in the administration of justice." Herbert v. 

Lando, 441 U.S. 153, 183, 99 S. Ct. 1635, 1652 (Brennan, 

J., dissenting). 

Although we have determined that a journalist's privilege 

exists, we have never decided who qualifies as a"journalist" 

for purposes of asserting it. The Supreme Court has warned 

of the difficulties in such an undertaking: 

 [S]ooner or later, it [will] become necessary to define 

 those categories of newsmen who qualify for the 

 privilege -- a questionable procedure in light of the 

 traditional doctrine that liberty of the press is the right 

 of the lonely pamphleteer just as much as the large, 

 metropolitan publisher. 

Branzburg v. Hayes, 408 U.S. 665, 703-04, 92 S. Ct. 2646, 

2668 (1972). 

We have found few cases that discuss who, beyond those 

employed by the traditional media, has status to raise the 

journalist's privilege. Courts have previously permitted 

documentary film-makers to invoke the protections of the 

journalist's privilege. See Silkwood v. Kerr-McGee, 563 F.2d 

433, 436 (10th Cir. 1977). Also, authors of technical 

publications and professional investigative books have been 

permitted to claim the privilege. See Apicella v. McNeil Lab. 

Inc., 66 F.R.D. 78 (E.D.N.Y. 1975) (technical publications 

are within the scope of journalist's privilege because the 

traditional doctrine of freedom of the press is the right of all 

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types of reporters); Shoen v. Shoen, 5 F.3d 1289, 1293 (9th 

Cir. 1993) (professional investigative book author has 

status to claim journalist's privilege). No other court, 

however, has considered whether the privilege may be 

invoked by those like Madden who are neither 

"pamphleteers" nor "metropolitan publishers," and certainly 

not engaged in investigating, publishing, reporting or 

broadcasting in the traditional sense. 

To date, only one other court of appeals has fashioned a 

test to answer the question of who has status to invoke a 

journalistic privilege. In von Bulow v. von Bulow, the Court 

of Appeals for the Second Circuit identified the principles 

underlying the application of the journalist's privilege. 811 

F.2d 136, 142 (2nd Cir. 1987). First, the court recognized 

that the process of newsgathering is a protected, albeit 

qualified, right under the First Amendment. This right 

emanates from the strong public policy supporting the 

unfettered communication of information by a journalist to 

the public. Second, the court required a true journalist, at 

the beginning of the news-gathering process, to have the 

intention of disseminating her information to the public. 

Third, the court stated that an individual may successfully 

claim the journalist's privilege if she is involved in activities 

traditionally associated with the gathering and 

dissemination of news, even though she may not ordinarily 

be a member of the institutionalized press. Fourth, the 

relationship between the putative journalist and her 

sources may be confidential or nonconfidential. And fifth, 

unpublished resource material likewise may be protected. 

In holding that "the individual claiming the privilege must 

demonstrate, through competent evidence, the intent to use 

the material in order to disseminate information for the 

public and such intent must have existed at the inception 

of the newsgathering process," the court turned to its 

opinion in Baker v. F&F Investment, 470 F.2d 778 (2nd Cir. 

1972). Baker was a civil rights case in which it was alleged 

that racial discrimination was practiced in the sale of 

housing in Chicago. During discovery, the plaintiffs 

deposed the editor of the Columbia Journalism Review, who 

had written an article on "blockbusting" -- an allegedly 

illegal housing application process -- ten years earlier. That 

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article, which had been published in the Saturday Evening 

Post, had been based, in part, on information forwarded to 

the editor by an anonymous real estate agent. The editor 

refused to disclose the identity of the real estate agent at 

deposition. 

The court held that the editor could not be compelled to 

disclose the identity of his source. Central to the court's 

holding was its concern that the "deterrent effect such 

disclosure is likely to have upon future `undercover' 

investigative reporting . . . threatens freedom of the press 

and the public's need to be informed." Id. at 782 (emphasis 

in original). Based on the rationale of Baker, the court 

concluded that "the critical question in determining if a 

person falls within the class of persons protected by the 

journalist's privilege is whether the person, at the inception 

of the investigatory process, had the intent to disseminate 

to the public the information obtained through the 

investigation." von Bulow, 811 F.2d at 143. In contrast, a 

person who "gathers information for personal reasons, 

unrelated to dissemination of information to the public, will 

not be deterred from undertaking his search simply by 

rules which permit discovery of that information in a later 

civil proceeding." Id. In other words, von Bulow holds that 

the purpose of the journalist's privilege was not solely to 

protect newspaper or television reporters, but to protect the 

activity of "investigative reporting." Id. at 142-43. 

Indeed, in adopting the test set forth in the von Bulow 

decision, the Court of Appeals for the Ninth Circuit has 

indicated that the journalist's privilege was designed not to 

protect a particular journalist, but "the activity of 

investigative reporting more generally." Shoen v. Shoen, 5 

F.3d 1289, 1293 (9th Cir. 1993). Thus, "it makes no

difference whether the intended manner of dissemination 

was by newspaper, magazine, book, public or private

broadcast or handbill because the press, in its historic 

connotation comprehends every sort of publication which 

affords a vehicle of information and opinion." Id. at 144 

(quoting Lovell v. Griffin, 303 U.S. 444, 452, 58 S. Ct. 666, 

669 (1938)). 

We find the reasoning of the court in von Bulow, and by 

extension in Shoen to be persuasive. In our view, the von 

 8 
Bulow test is consistent with the goals and concerns that 

underlie the journalist's privilege. Because this test 

emphasizes the intent behind the newsgathering process 

rather than the mode of dissemination, it is consistent with 

the Supreme Court's recognition that the "press" includes 

all publications that contribute to the free flow of 

information. See Lovell, 303 U.S. at 452, 58 S. Ct. at 669 

(1938). This test is also consistent with the Supreme 

Court's concerns that the privilege apply only to legitimate 

members of the press. Id. at 457, S. Ct. at 674. This test 

does not grant status to any person with a manuscript, a 

web page or a film, but requires an intent at the inception 

of the newsgathering process to disseminate investigative 

news to the public. As we see it, the privilege is only 

available to persons whose purposes are those traditionally 

inherent to the press; persons gathering news for 

publication. It is the burden of the party claiming the 

privilege to establish their right to its protection. von Bulow, 

811 F.2d at 144. 

The district court correctly looked to von Bulow as the 

appropriate test to use in determining who qualifies as a 

"journalist" for purposes of claiming privilege. We believe, 

however, that the district court read the von Bulow decision 

too expansively and in doing so elided the requirement that 

the individual be engaged in the activity of news gathering 

or investigative reporting. The district court believed that 

because Madden "sought, gathered or received" materials 

from the WCW with the intention of disseminating that 

material, he was a journalist. We conclude that more is 

required to claim the privilege. 

As we have indicated previously, we agree with von Bulow 

that the person claiming privilege must be engaged in the 

process of "investigative reporting" or "news gathering." 

Moreover, we agree with Shoen, which held that the critical 

question for deciding whether a person may invoke the 

journalist's privilege is "whether she is gathering news for 

dissemination to the public." Shoen, 5 F.3d at 1293. We 

hold that individuals are journalists when engaged in 

investigative reporting, gathering news, and have the intent 

at the beginning of the news-gathering process to 

disseminate this information to the public. Madden does 

not pass this test. 

 9 
Madden's activities in this case cannot be considered 

"reporting," let alone "investigative reporting." By his own 

admission, he is an entertainer, not a reporter, 

disseminating hype, not news. Although Madden proclaims 

himself to be "Pro Wrestling's only real journalist," 

hyperbolic self-proclamation will not suffice as proof that 

an individual is a journalist. Moreover, the record reveals 

that all of Madden's information was given to him directly 

by WCW executives. Madden's deposition testimony 

acknowledges that WCW employees were his sole source of 

information for his commentaries. He uncovered no story 

on his own nor did he independently investigate any of the 

information given to him by WCW executives. Madden also 

fails the test in two other critical aspects: first, he was not 

gathering or investigating "news," and second, he had no 

intention at the start of his information gathering process 

to disseminate the information he acquired. Madden's work 

amounts to little more than creative fiction about 

admittedly fictional wrestling characters who have dramatic 

and ferocious-sounding pseudonyms like "Razor Ramon" 

and "Diesel." As a creative fiction author, Madden's primary 

goal is to provide advertisement and entertainment-- not 

to gather news or disseminate information. It is clear from 

the record that Mr. Madden was not investigating"news," 

even were we to apply a generous definition of the word. 

Madden admits in his deposition that his work for the WCW 

amounts to a mix of entertainment with reporting. He 

states that "with the WCW 900 number, I say things tongue 

[in] cheek. I say things for satire value, I say things to be 

funny, and sometimes I will take something like that and 

use it for humor value." Furthermore, the record indicates 

that WCW executives told Madden to "be a little crazy, say 

off the wall stuff, entertain, use a lot of humor, sort of work 

-- sort of be like the bad guy in the literal sense, not in 

terms of what I say is always going to be false, but in terms 

of what I say is going to get people excited." 

Even if Madden's efforts could be considered as 

"newsgathering," his claim of privilege would still fail 

because, as an author of entertaining fiction, he lacked the 

intent at the beginning of the research process to 

disseminate information to the public. He, like other 

creators of fictional works, intends at the beginning of the 

 10 
process to create a piece of art or entertainment. Fiction or 

entertainment writers are permitted to view facts 

selectively, change the emphasis or chronology of events or 

even fill in factual gaps with fictitious events-- license a 

journalist does not have. Because Madden is not a 

journalist, it follows that he cannot conceal his information 

within the shadow of the journalist's privilege. 4 

IV. 

To summarize, we hold that individuals claiming the

protections of the journalist's privilege must demonstrate 

the concurrence of three elements: that they: 1) are 

engaged in investigative reporting; 2) are gathering news; 

and 3) possess the intent at the inception of the newsgathering process to disseminate this news to the public. 

Madden, having failed to sustain his burden, cannot protect 

his sources or his information by invoking the journalist's 

privilege. We will reverse the order and remand the cause to 

the district court. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

_________________________________________________________________ 

4. We have indicated that a bona fide journalist has a qualified 

privilege. 

We do not reach the district court's balancing of the competing interests 

involved in the application of this privilege because of our determination 

that Madden does not have status to raise the privilege in the first 

place. 

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