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. e du/thir dc ir c uit_1998/164Filed July 21, 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

(Opinion Filed July 21, 1998)

Robert L. Byer, Esq. (Argued) Kirkpatrick and Lockhart 1500 Oliver Building Pittsburgh, Pennsylvania 15222

Counsel for Appellant

___________________________________________________ ______________

*The Honorable Donald P. Lay, Senior United States Circuit Judge for the United States Court of Appeals for the Eighth C ircuit, sitting by designation.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

OPINION OF THE COURT

NYGAARD, Circuit Judge.

The issue on appeal is whether the district court e rred by concluding that Mark Madden, a nonparty witness in this civil matter, is entitled to claim a journalist's p rivilege. We

hold that he is not and will reverse.

I.

We will summarize only those facts necessary to giv e 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 Feder ation" (WWF) to engage in "interpromotional events," where in WCW wrestling personalities would compete with WWF personalities. Titan has refused to permit any of i ts wrestlers to engage in the activities.

Titan sued TBS in the United States District Court for the District of Connecticut alleging unfair trade pract ices, copyright infringement and other pendent state law claims, none of which are germane to this appeal. Titan Spo rts Inc. v. Turner Broadcasting Systems, Inc., No. 396-cv-01 139 (D. Conn.) (the Connecticut action). As part of the dis covery process in the Connecticut action, however, Titan i ssued a subpoena to take the deposition of Mark Madden, a nonparty witness who is employed by WCW, and reside d in the Western District of Pennsylvania.

WCW employs Madden to produce tape-recorded commentaries, which are replayed to callers on WCW' s 900-

2number 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. Madd en asserts that in the course of preparing statements for the WCW hotline, he receives information from confident ial 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 misle ading

statements recorded for the WCW's 900-number hotlin e. Madden, through counsel, invoked a "journalist's pr ivilege" 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 pr otects journalists from revealing their confidential sourc es.

The district court denied Titan's motion insofar as it sought to compel Madden to identify the sources fro m which he got information for his commentaries. The district court concluded that Madden was a "journalist" with standing to assert the privilege because he intende d to disseminate information to third parties. The distr ict court also held that Madden's interest in protecting his sources was not outweighed by the need for disclosure. Tita n now appeals.

II.

The somewhat unusual procedural posture of this cas e requires that we discuss briefly our jurisdiction t o hear this appeal. We have jurisdiction over "all final decisi ons of the

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

___________________________________________________ ______________

1. The district court's opinion concerned only the federal privilege. The applicability of the Pennsylvania law is not appeal ed.

2. In pertinent part, 28 U.S.C. S 1291 provides tha t "the courts of appeals shall have jurisdiction of appeals from all final decisions of the

district courts of the United States . . . ."

3district court means, with limited exceptions, an o rder that

ends the litigation on the merits and leaves nothin g for the district court to do but execute the judgment. Coop ers & Lybrand v. Livesay, 437 U.S. 463, 467, 98 S.Ct. 245 4, 2457 (1978). Ordinarily, a pretrial discovery order such as this one is not considered final. Enprotech Corp. v. Ren da, 983 F.2d 17, 20-21, (3rd Cir. 1993), (an order denying a pretrial civil discovery motion to compel production of a do cument was not final and appealable). The typical remedy f or one aggrieved by an order denying a discovery request i s to await final judgment before appealing. Id.

The order appealed from in this case is not a typic al discovery order. Although it relates to discovery a nd the deposition of a nonparty witness, it has not been e ntered by

the district court where the case has been filed an d is currently pending. The district court for the Distr ict 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 disc overy orders where a district court, other than the distr ict 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 f or this exception is that these orders involve nonparties a nd are issued by district courts other than the one in whi ch the principal action is pending, thereby eliminating an y avenue for effective appellate review.

We agree with this premise but believe, rather than as an exception, finality for purposes of our jurisdictio n in this circumstance is determined more directly by asking whether the aggrieved entity has any means, other t han an

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3. When an ancillary district court enters an order against a nonparty which compels discovery, such an order is not immed iately appealable, leaving the nonparty with the option to either comp ly 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 (citin g Federal Trade Comm'n v. Alaska Land Leasing Inc., 778 F.2d 577, 5 78 (10th Cir. 1985)).

4immediate appeal before us, to obtain appellate rev iew of

the district court's decision. For Titan, the answe r is no, because the Court of Appeals for the Second Circuit does not have jurisdiction to review this order of the W estern District of Pennsylvania. Were we to reject jurisdi ction, appellate review of this order would be impossible. Consequently, because we are the only forum that ma y 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 orde r granting a journalist's privilege to Madden. The is sue is whether he has status as a journalist to invoke the protections of the privilege. We conclude that he d oes 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 n ot favored. Indeed, the Supreme Court has not shown enthusiasm for the creation of constitutional privi leges 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 privilege s should not be "lightly created or expansively construed, f or they are in derogation of the search for truth." United States v. Nixon, 418 U.S. 683, 710, 94 S. Ct. 3090, 3108 (197 4). Pretrial discovery is therefore, "accorded a broad and liberal treatment." Hickman v. Taylor, 329 U.S. 495, 507, 6 7 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 "reasonably calculated to lead to the discovery of admissible evidence." Fed. R. Civ. P. 26(b)(1).

Nonetheless, we have recognized that when a journal ist, 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 C hester, 612 F.2d 708 (3d Cir. 1979) (journalist's privilege for civil cases); United States v. Cuthbertson, 630 F.2d 139 (3d Cir.

51980) (journalist's privilege for criminal cases). Premised

upon the First Amendment, the privilege recognizes society's interest in protecting the integrity of t he newsgathering process, and in ensuring the freeflow of information to the public. It is an interest of "su fficient legal importance to justify some incidental sacrifice of sources of facts needed in the administration of justice." Her bert v. Lando, 441 U.S. 153, 183, 99 S. Ct. 1635, 1652 (Bre nnan, J., dissenting).

Although we have determined that a journalist's pri vilege exists, we have never decided who qualifies as a "j ournalist" for purposes of asserting it. The Supreme Court has warned of the difficulties in such an undertaking:

[S]ooner or later, it [will] become necessar y to define those categories of newsmen who qualify for the privilege -- a questionable procedure in lig ht of the traditional doctrine that liberty of the pre ss is the right of the lonely pamphleteer just as much as th e 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 th ose employed by the traditional media, has status to ra ise the journalist's privilege. Courts have previously perm itted documentary film-makers to invoke the protections o f the journalist's privilege. See Silkwood v. Kerr-McGee, 563 F.2d 433, 436 (10th Cir. 1977). Also, authors of technic al publications and professional investigative books h ave been permitted to claim the privilege. See Apicella v. M cNeil Lab. Inc., 66 F.R.D. 78 (E.D.N.Y. 1975) (technical publi cations are within the scope of journalist's privilege beca use the traditional doctrine of freedom of the press is the right of all types of reporters); Shoen v. Shoen, 5 F.3d 1289, 1 293 (9th Cir. 1993) (professional investigative book author has status to claim journalist's privilege). No other c ourt, however, has considered whether the privilege may b e invoked by those like Madden who are neither "pamphleteers" nor "metropolitan publishers," and c ertainly not engaged in investigating, publishing, reporting or broadcasting in the traditional sense.

6To date, only one other court of appeals has fashio ned a

test to answer the question of who has status to in voke a journalistic privilege. In von Bulow v. von Bulow, the Court of Appeals for the Second Circuit identified the pr inciples underlying the application of the journalist's priv ilege. 811 F.2d 136, 142 (2nd Cir. 1987). First, the court rec ognized that the process of newsgathering is a protected, a lbeit qualified, right under the First Amendment. This ri ght emanates from the strong public policy supporting t he unfettered communication of information by a journa list to the public. Second, the court required a true journ alist, at the beginning of the news-gathering process, to hav e the intention of disseminating her information to the p ublic. Third, the court stated that an individual may succ essfully 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 ordi narily be a member of the institutionalized press. Fourth, the relationship between the putative journalist and he r sources may be confidential or nonconfidential. And fifth, unpublished resource material likewise may be prote cted.

In holding that "the individual claiming the privil ege must demonstrate, through competent evidence, the intent to use

the material in order to disseminate information fo r the public and such intent must have existed at the inc eption of the newsgathering process," the court turned to its opinion in Baker v. F&F Investment, 470 F.2d 778 (2 nd Cir. 1972). Baker was a civil rights case in which it wa s alleged that racial discrimination was practiced in the sal e of housing in Chicago. During discovery, the plaintiff s deposed the editor of the Columbia Journalism Revie w, who had written an article on "blockbusting" -- an alle gedly illegal housing application process -- ten years ea rlier. That article, which had been published in the Saturday E vening Post, had been based, in part, on information forwa rded to the editor by an anonymous real estate agent. The e ditor refused to disclose the identity of the real estate agent at deposition.

The court held that the editor could not be compell ed to disclose the identity of his source. Central to the court's holding was its concern that the "deterrent effect such

7disclosure is likely to have upon future `undercove r'

investigative reporting . . . threatens freedom of the press and the public's need to be informed. Id. at 782 (e mphasis in original). Based on the rationale of Baker, the court concluded that "the critical question in determinin g if a person falls within the class of persons protected by the journalist's privilege is whether the person, at th e inception of the investigatory process, had the intent to dis seminate to the public the information obtained through the investigation." von Bulow, 811 F.2d at 143. In cont rast, a person who "gathers information for personal reason s, unrelated to dissemination of information to the pu blic, 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 ho lds that the purpose of the journalist's privilege was not s olely to protect newspaper or television reporters, but to p rotect the activity of "investigative reporting." Id. at 142-4 3.

Indeed, in adopting the test set forth in the von B ulow decision, the Court of Appeals for the Ninth Circui t has indicated that the journalist's privilege was desig ned not to protect a particular journalist, but "the activity of investigative reporting more generally." Shoen v. S hoen, 5 F.3d 1289, 1293 (9th Cir. 1993). Thus, "it makes no

difference whether the intended manner of dissemina tion was by newspaper, magazine, book, public or private broadcast or handbill because the press, in its his toric connotation comprehends every sort of publication w hich 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, an d by extension in Shoen to be persuasive. In our view, t he von Bulow test is consistent with the goals and concern s that underlie the journalist's privilege. Because this t est emphasizes the intent behind the newsgathering proc ess rather than the mode of dissemination, it is consis tent with the Supreme Court's recognition that the "press" in cludes all publications that contribute to the free flow o f information. See Lovell, 303 U.S. at 452, 58 S. Ct. at 669 (1938). This test is also consistent with the Supre me

8Court's concerns that the privilege apply only to l egitimate

members of the press. Id. at 457, S. Ct. at 674. Th is test does not grant status to any person with a manuscri pt, a web page or a film, but requires an intent at the i nception of the newsgathering process to disseminate investi gative news to the public. As we see it, the privilege is only available to persons whose purposes are those tradi tionally 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 protectio n. von Bulow,

811 F.2d at 144.

The district court correctly looked to von Bulow as the appropriate test to use in determining who qualifie s 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 requirem ent that the individual be engaged in the activity of news g athering or investigative reporting. The district court beli eved that because Madden "sought, gathered or received" mater ials from the WCW with the intention of disseminating th at material, he was a journalist. We conclude that mor e 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 gathe ring." Moreover, we agree with Shoen, which held that the critical question for deciding whether a person may invoke t he 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 t he intent at the beginning of the news-gathering process to disseminate this information to the public. Madden does not pass this test.

Madden's activities in this case cannot be consider ed "reporting," let alone "investigative reporting." B y his own admission, he is an entertainer, not a reporter, disseminating hype, not news. Although Madden procl aims himself to be "Pro Wrestling's only real journalist ," hyperbolic self-proclamation will not suffice as pr oof that an individual is a journalist. Moreover, the record reveals

9that all of Madden's information was given to him d irectly

by WCW executives. Madden's deposition testimony acknowledges that WCW employees were his sole sourc e of

information for his commentaries. He uncovered no s tory 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 h ad 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, Maddens ' primary goal is to provide advertisement and entertainment- - not to gather news or disseminate information. It is cl ear from the record that Mr. Madden was not investigating "n ews," even were we to apply a generous definition of the word. Madden admits in his deposition that his work for t he WCW amounts to a mix of entertainment with reporting. H e states that "with the WCW 900 number, I say things tongue [in] cheek. I say things for satire value, I say th ings to be funny, and sometimes I will take something like tha t and use it for humor value." Furthermore, the record in dicates

that WCW executives told Madden to "be a little cra zy, 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, bu t 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 l acked the intent at the beginning of the research process to disseminate information to the public. He, like oth er creators of fictional works, intends at the beginni ng of the 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 e vents or even fill in factual gaps with fictitious events-- license a journalist does not have. Because Madden is not a

10journalist, it follows that he cannot conceal his i nformation

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 demo nstrate the concurrence of three elements: that they: 1) ar e engaged in investigative reporting; 2) are gatherin g news; and 3) possess the intent at the inception of the n ewsgathering process to disseminate this news to the p ublic. Madden, having failed to sustain his burden, cannot protect his sources or his information by invoking the jour nalist'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 ha s a qualified privilege. We do not reach the district court's balancing of t he competing interests involved in the application of this privilege becau se of our determination that Madden does not have status to raise the privi lege in the first place.

11