Opinion
CASE NO. CV-F-02-5198 OWW LJO
June 20, 2003
ORDER ON PLAINTIFF'S MOTION RE JOURNALIST PRIVILEGE
Plaintiff Carolyn Condit moves for an order overruling the confidential journalist privilege objection stated in response to Interrogatory No. 9, in response to Document Request no. 7, 8, 12, and 13, and to order defendants to identity its confidential sources in supplement disclosures pursuant to Rule 26, along with other remedies. On June 12, 2003, the parties lodged their Joint Statement Re Discovery Disagreement and accompanying exhibits, which were filed with the Court on June 16, 2003. The motion came on for hearing on June 20, 2003 at 8:30 a.m. in Department 6 of this Court. Plaintiff Carolyn Condit appeared by counsel Neville Johnson of Johnson Rishwain. Defendants National Enquirer, Inc. and American Media, Inc. appeared by counsel Thomas Kelley of Faegre Benson and by counsel Bruce Owdom of Dietrich Galsrud Malleck and Aune. On June 19, 2003, plaintiff filed a document entitled "Supplemental Authority and Evidence" in conjunction with this motion. As these papers are untimely pursuant to Local Rule 37-351, the Court elects not to consider the supplemental papers. The papers were filed after 11:00 a.m. the day before the hearing and received in chambers after 3:00 p.m. In addition, full deposition transcripts were attached without reference to any specific portions. Having considered the parties' Joint Statement re Discovery Disagreement, as well as the extensive arguments of counsel and the Court's file, the Court issues the following order.
FACTUAL BACKGROUND
On August 13, 2002, National Enquirer served its initial disclosure under Article I, Section 2 of the state Constitution, Evid. Code § 1070 and the 1st and 14th Amendments to the Constitution. National Enquirer asserted the privilege for both the identity of witnesses and documents.
Plaintiff asked for documents relating to the creation of the article, editorial files, related documents and documents relating to the September 4, 2001 article. (Doc. Requests no, 7, 8, 9, and 10.) As to each document request, National Enquirer stated:
"Defendant objects to this Request fo Production of Documents on the following grounds: it seeks information that is protected under Article 1, Section 2 of the California Constitution and Cal.Evid. Code section 1700, the First and Fourteenth Amendments to the Constitution of the United states, and analogous privileges under the common law. Without waiving that objection in any way, the defendant will produce documents responsive to this Request, with confidential source information redacted.
In answer to interrogatory No. 11, which asked for names of law enforcement representatives with the National Enquirer had interviews, the National Enquirer objected on the grounds it did not know who were investigating the disappearance of Chandra Levy.
On February 25, 2003, defendant disclosed one of its confidential sources — Armstrong Williams — who testified at a later deposition that he was not the source who told the reporters that Carolyn Condit had a phone call with Chandra Levy.
Plaintiff seeks to compel the "justice department source" who provided information to National Enquirer reporter Charles Montgomery. This source has been designated CM-I.
ANALYSIS DISCUSSION
Overview of the Journalist's privilege
In the seminal case of Branzburg v. Hayes, 408 U.S. 665, 680-82, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972), the Supreme Court held that the First Amendment protects the right of the press to gather news and information. The Ninth Circuit has interpreted Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972), as establishing a qualified privilege for journalists against compelled disclosure of information gathered in the course of their work, See Shoen v. Shoen, 5 F.3d 1289 (9th Cir. 1993) (" Shoen I"). "Rooted in the First Amendment, the privilege is a recognition that society's interest in protecting the integrity of the news gathering 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.'" Id. at 1292. In Shoen v. Shoen, 48 F.3d 412 (9th Cir. 1995) ( Shoen II) the Ninth Circuit clarified the test to overcome the journalist's privilege. In Shoen II, the Court cautioned that "routine court-compelled disclosure of research materials poses a serious threat to the vitality of the news gathering process." Id. at 416. In Shoen II, the court stated the test as:
We therefore hold that where information sought is not confidential, a civil litigant is entitled to requested discovery notwithstanding a valid assertion of the journalist's privilege by a nonparty only upon a showing that the requested material is: (1) unavailable despite exhaustion of all reasonable alternative sources; (2) noncumulative; and (3) clearly relevant to an important issue in the case. Shoen II, 48 F.3d at 416.
In Shoen II, the informant did not require confidentiality. In Shoen II, however, the court cited with approval the test adopted by the Second Circuit for determining when a confidential source may be disclosed:
"Leonard Shoen was neither a confidential source nor did he insist that the details of his discussions with Watkins not be disclosed. No circuit has adopted an explicit test applicable where the information sought from a journalist is not confidential. Instead, the cases setting forth tests for determining whether the needs of a civil litigant should prevail over the privilege involve confidential informants. The Second Circuit, for example, applies the following conjunctive test for determining whether a journalist must disclose a confidential source in a civil case: disclosure may be ordered only upon a clear and specific showing that the information is: highly material and relevant, necessary or critical to the maintenance of the claim, and not obtainable from other available sources.Shoen II citing In re Petroleum Products Antitrust Litig., 680 F.2d 5, 7 (2d Cir.), cert. denied, 459 U.S. 909, 103 S.Ct. 215, 74 L.Ed.2d 171 (1982); also citing LaRouche v. National Broadcasting Co., Inc., 780 F.2d 1134, 1139 (applying similar three-part test); Miller v. Transamerican Press, 621 F.2d 721, 726, supplemented, 628 F.2d 932 (5th Cir. 1980) (same), cert. denied, 450 U.S. 1041, 101 S.Ct. 1759, 68 L.Ed.2d 238 (1981).
Similarly, under Article 1, § 2 of the California Constitution, California protects the reporter's confidential sources. A reporter, editor or publisher may have a constitutional privilege to withhold both his or her sources and unpublished information obtained from such sources in civil litigation. This privilege is designed to protect investigative reporting, and is based on the "free press" guarantees of the First Amendment and correlative provisions of the California Constitution. Mitchell v. Sup.Ct. (Synanon Church), 37 Cal.3d 268, 274 (1984). The Court in Mitchell balanced five factors to determine whether disclosure of the confidential source is appropriate. Those factors are:
— Nature of the litigation, and whether the reporter is a party. (The privilege will more likely be upheld in criminal proceedings than civil, and where the newsperson is not a party to the litigation.)
— Whether the information "goes to the heart" of plaintiffs claim (i.e., mere relevance is not enough).
— Whether plaintiff has exhausted all alternative sources for obtaining the information sought (compulsory disclosure being "the last resort").
— Any public interest in protecting confidentiality of the source. (E.g., there is a strong public interest in revelation of wrongdoing in public affairs, and in protecting the "whistleblower" from retaliation.)
— Finally, the court may require plaintiff to make a prima facie showing that the alleged defamatory statements were false before requiring disclosure. (While not a prerequisite, it may "tip the balance" in favor of discovery.)Mitchell v. Sup.Ct. (Synanon Church), 37 Cal.3d at 283.
Here, the parties agree that the determination of the privilege is a case-by-case evaluation based on certain factors. Defendants argue that the factors are determined under both federal and state law while plaintiff argues the factors are determined under state law (i.e., Mitchell,) The primary factors that are disputed between the parties are whether plaintiff satisfied the "exhaustion" requirement and whether the information "goes to the heart" of plaintiff s claims.
Exhaustion
In the present matter, the parties dispute whether Mrs. Condit has satisfied the exhaustion requirement. Plaintiff argues that she has exhausted all reasonable alternative sources. Plaintiff has followed all reasonable leads by deposing or obtaining declarations from all persons listed in defendant's initial disclosure. Defendant argues Mrs. Condit has not exhausted available sources because she has not sought to investigate or depose any representatives of law enforcement agencies, including the police force or Justice Department.
Defendant cites Zerilli v. Smith, 656 F.2d 705 (D.C. Cir. 1981) for the proposition plaintiff has to exhaust all sources which may require as many as 60 depositions. However, Zerilli did not require this many depositions. In Zerilli, defendant has disclosed four names of persons who had the most information and a list of persons who had seen the disputed information. Plaintiff made no attempt to depose or investigate any of the information these persons had. Thus, the Zerilli court found that plaintiff had not exhausted the alternative sources. The Zerilli court noted that "reporters should be compelled to disclose their sources only after the litigant has shown that he has exhausted every reasonable alternative source of information." Id. at 714. The court said "To be sure, there are some limits to the obligation to pursue alternative sources." The court pointed to Carey v. Hume, 492 F.2d 631, 636 (D.C. Cir.), where the reporter had stated that his source was an employee of the national headquarters of the United Mine Workers of America. The Carey v. Hume court held the litigant need not have deposed every one of the UMWA's employees, but the exhaustion "obligation is clearly very substantial," The court suggested that an alternative requiring the taking of as many as 60 depositions might be a reasonable prerequisite.
The Ninth Circuit has cited Zerilli with approval in Shoen I and Shoen II. Shoen II, 48 F.3d at 416 (requesting party must show exhaustion of all reasonable alternative sources and that the information sought is "crucial to his case."); accord Shoen I, 5 F.3d at 1296. Thus, plaintiff's requirement of exhaustion requires investigating all "reasonable alternative sources." See Dangerfield v. Star Editorial Inc., 817 F. Supp. 833, 838 (C.D.Cal. 1993) (the court found "troubling" that the plaintiff failed to "exploit an obvious source for evidence," when the plaintiff neglected to depose the reporter who interviewed the informant.); Rogers v. Home Shopping Network, Inc., 73 F. Supp.2d 1140 (C.D.Cal. 1999) (Plaintiff did not exhaust all alternative sources — failing to investigate all eyewitnesses or pursued all other leads that resulted from deposition testimony).
Plaintiff has asked the Court to overrule defendants' privilege as to all confidential sources. The only evidence before the Court is as to the confidential source CM-I who provided information about the alleged telephone call between Chandra Levy and Mrs. Condit. Plaintiff does not provide any evidence as to exhaustion into the identity of other confidential sources. For instance, defendant claims as a confidential source a person who informed the Enquirer that the Levy's spent $200,000 in an investigation for their daughter. (See TAB D, p, 86-87.) Plaintiff has not shown she has exhausted all reasonable alternatives as to these other confidential sources. The only focus of the motion by plaintiff is as to the identity of CM-I.
In addition, at oral argument, plaintiff argued that disclosure of the confidential sources for National Enquirer reporters Courtney Callahan and David Wright are at issue in this motion. To the contrary, the Joint Statement of Discovery Disagreement did not raise disclosure of these reporters' sources. Plaintiff's untimely "Supplemental Authority and Evidence," filed on June 19, 2003 first raised this issue. The Court has elected not consider the late filed papers. Accordingly, the issue of the confidential sources for Courtney Callahan and David Wright are not properly before the Court.
Defendant also argued that if these confidential sources were before the Court, the Court would necessarily need to apply Washington D.C.'s journalist privilege, as this is the location of both reporters, and which provides an absolute as opposed toqualified privilege.
Defendant has disclosed information related to CM-I as an individual within the United States Department of Justice. The article itself refers to the source as a justice department source. (August 7, 2001 article, para. 25.) The Defendant attaches notes of editor Charlie Montgomery who interviewed CM-I, who is identified as a "Justice Department source." (Tab E.) The notes have apparently been produced in conjunction with this lawsuit, The notes indicate that CM-I said "one of the scenarios police are investing is that Mrs. Condit had a verbal confrontation with Chandra when she called her husband's apartment and Levy answered the phone." (Tab E.) Defendant argues that this information was treated as a lead and the story did not evolve until specific information was provided by Armstrong Williams. (Tab F — notes of interview with Armstrong Williams — "Source A told the Enquirer 'investigators are calling it the 'blow up phone call.')
Plaintiff does not present any evidence of attempts to locate the source or at least the names of persons in the Justice Department. Plaintiff presumes it would be burdensome to inquire. At oral argument, plaintiff rhetorically asked if plaintiff was required to take "ten depositions." Plaintiff is not required to depose everyone in the Justice department to locate the source, but plaintiff must make some reasonable attempt to exhaust that alternative source. Carey v. Hume, 492 F.2d 631, 636 (D.C. Cir.) (Plaintiff is not required to depose everyone at an organization). There is no evidence before the Court that plaintiff has made any attempt to investigate within the Justice Department or any other law enforcement agency. Thus, absent this evidence, the Court cannot conclude that plaintiff investigated all "reasonable alternative sources."
Plaintiff argues that she will be sent on a wild goose chase because defendant broadly disclosed in its initial disclosure that persons with knowledge include "all law enforcement officers and agents in all law enforcement agencies that were engaged in the investigation into the disappearance of Chandra Levy." (TAB 2.) Plaintiff, however, did not seek to compel further designation of information, or correction of the disclosure under Fed.R.Civ.P, 26(e).
At oral argument, plaintiff argued that the privilege not to disclose the confidential source "basically goes away" when a publisher is sued for defamation, as opposed to the case where the publisher is a third party, citing Blum v. Schlegel, 150 F.R.D. 42 (W.D.N.Y 1993), Los Angeles Memorial Coliseum Comm'n, 89 F.R.D. 489 (C.D. 1981) and Silkwood v. Kerr-McGee Corp., 563 F.2d 433 (10 Cir. 1977). Each of these cases involved subpoenas issued to nonparty journalists for disclosure of their confidential sources.
Many cases, however, apply the privilege in suits against journalists. Indeed, in Mitchell v. Superior Court, 37 Cal.3d 268, 279 (1984), a case involving suit against two reporters for a defamatory article, the Court held "a civil action a reporter, editor, or publisher has a qualified privilege to withhold disclosure of the identity of confidential sources and of unpublished information supplied by such sources." (Emphasis added.) In the context of a civil libel action brought by a public figure plaintiff, courts have noted that the balance shifts somewhat more in favor of disclosure when the privilege is asserted by a media defendant. Dangerfield v. Star Editorial Inc., 817 F. Supp. 833 836 (C.D.Cal., 1999); Miller v. Transamerican Press, Inc., 621 F.2d 721 (5th Cir.), reh'g denied, 628 F.2d 932 (5th Cir. 1980), cert. denied, 450 U.S. 1041, 101 S.Ct. 1759, 68 L.Ed.2d 238 (1981) (plaintiff in a libel suit can compel discovery of identity of confidential source of journalist defendants where knowing the informant's identity is the only way plaintiff can establish malice and prove his case by showing that defendants' news story was false or that they were reckless in relying on informant). The cases do not find that the privilege goes away merely because a publisher or a journalist is named in the civil action.
Upon further inquiry by the Court, however, plaintiff agreed that the privilege is a conditional privilege. Plaintiff also agreed that she must meet the Mitchell conditions and that one of the conditions that must first be established is that plaintiff has exhausted alternative sources before compelling disclosure of a confidential source. Here, plaintiff has not done so.
The failure to exhaust alternative sources is a crucial and necessary condition, and therefore, is dispositive of the motion to disclose. "The values resident in the protection of the confidential sources of newsmen certainly point towards compelled disclosure from the newsman himself as normally the end, and not the beginning, of the inquiry." Zerilli v. Smith, 56 F.2d at 713. Because the condition of exhaustion has not been met, the protection from disclosure remains intact.
CONCLUSION
For the reasons discussed above, plaintiffs motion for an order overruling the confidential journalist privilege objection, and related remedies, is DENIED.
IT IS SO ORDERED. ORDER ON DEFENDANTS' MOTION TO COMPEL GARY CONDIT TO PRODUCE DOCUMENTS
Defendants National Enquirer, Inc. and American Media, Inc. move to compel third party witness Gary Condit to produce documents called for in a subpoena served upon him pursuant to Fed.R.Civ.P. 45. On June 17, 2003, the parties filed their Joint Statement Re Discovery Disagreement and accompanying exhibits. The motion came on for hearing on June 20, 2003 at 8:30 a.m. in Department 6 of this Court. Plaintiff Carolyn Condit appeared by counsel Neville Johnson of Johnsor Rishwain. Defendants National Enquirer, Inc. and American Media, Inc. appeared by counse Thomas Kelley of Faegre Benson and by counsel Bruce Owdom of Dietrich Galsrud Malleck and Aune. Third party witness Gary Condit appeared by counsel Mark Kassabian of Geragos and Geragos Having considered the parties' Joint Statement re Discovery Disagreement, as well as the extensive arguments of counsel and the Court's file, the Court issues the following order.
FACTUAL BACKGROUND
At third party witness Gary Condit's deposition on February 4, 2003, Gary Condit refused to produce any documents called for in the subpoena or to answer questions upon various grounds. Since the deposition, plaintiff Carolyn Condit has agreed not to call Gary Condit as a witness, and therefore defendants limit the relief sought in this motion to production of the documents called for in the subpoena tecum tecum.Gary Condit's counsel, Lin Wood of Atlanta, accepted service of the subpoena on behalf of Gar Condit on January 16, 2003. The documents requested in the subpoena, and which are at issue in this motion, are:
1. All documents that reflect, record, pertain to, relate to, or concern your relationship with Chandra Levy.
2. All documents that reflect, record, pertain to, relate to, or concern you whereabouts, conduct, or activities with two weeks of the disappearance o Chandra Levy (April 20 — May 5 2001).
3. All documents that reflect, record, pertain to, relate to, or concern your phone records that were turned over to D.C. Metro Police and/or FBI and /o Department of Justice investigators who were investigating the disappearance o Chandra Levy in 2001.
4. All documents that reflect, record, pertain to, relate to, or concern communications between yourself, your staff, attorneys, or other agents and Ani Marie Smith in 2000 and 2001.
5. All documents that reflect, record, pertain to, relate to, or concern your disposa of the Tag Heuer watch box in Virginia in July 2001.
On January 24, 2003, Mr. Wood served a written objection to the subpoena and objected to production of items no. 4 and 5. Mr. Wood also advised that he was attempting to obtain transcripts o 3 of 4 interviews between Mr. Condit and the FBI and D.C. Metro Police.
At the deposition, Gary Condit was represented by Mr. Wood and George Buehler who objected to to producing any of the documents called for in the subpoena, asserting the privilege against sel incrimination, At the deposition, Gary Condit's counsel instructed him not to answer most of th questions asked, on the grounds of (1) relevance, (2) privilege against self-incrimination, (3) marita communications privilege, and (4) constitutional right of privacy. On June 12, 2003, Buehler sent letter indicating that the only documents in Gary Condit's possession, custody or control are (1) a 3-pag chronology of events during the period of April 28-May 4, 2001 (provided to the D.C. Metro police) Mr. Buehler asserted the privilege against self incrimination, (2) telephone bills and logs produced to the grand jury investigating the disappearance of Chandra Levy — Buehler asserted the privilege of being a former member of the House of Representative, under the speech and debate clause. (TAB 6.) In the June 12, 2003 correspondence, Buehler said there were no transcripts.
ANALYSIS DISCUSSION
Federal Rule Civil Procedure 45 governs deposition subpoenas duces tecum for the production of documents with or without the taking of a deposition. Rule 45(c)(2)(B) in pertinent part states:
"a person commanded to produce and permit inspection and copying may . . . serve upon the party or attorney designated in the subpoena written objection . . . If objection is made, the party serving the subpoena shall not be entitled to inspect and copy the materials or inspect the premises except pursuant to an order of the court by which the subpoena was issued, If objection has been made, the party serving the subpoena may, upon notice to the person commanded to produce, move at any time for an order to compel the production. Such an order to compel production shall protect any person who is not a party or an officer of a party from significant expense resulting from the inspection and copying commanded."
Fed.R.Civ.P. 45(c)(3)(A)(iii) provides a court "shall quash or modify the subpoena if it . . requires disclosure of privileged or other protected matter and no exception or waiver applies, or . . subjects a person to undue burden."
Timeliness of the Objections
Defendant argues that objection to the production of documents has been waived for failure to timely object to the subpoena.
A nonparty party served with a subpoena may serve "written objection to inspecting or copying of any or all of the designated materials" Fed.R.Civ.P. 45(c)(2)(B). Objections are to be served with 14 days after the service of the subpoena except if the subpoena is served less that 14 days before this deposition, the objections may be served anytime before the deposition. Fed.R.Civ.P. 45(c)(2)(B) Failure to serve timely objections generally waives all grounds for objection including privilege. In re DG Acquisition Corp., 151 F.3d 75, 81 (2nd Cir. 1998) (waived privilege against self incrimination).
The parties' Joint Statement re Discovery Disagreement states that the subpoena was served 01 January 16, 2003. (Joint Statement p, 3:12-13.) The deposition occurred on February 4, 2003. By letter of January 24, 2003, counsel for Gary Condit timely objected to categories of documents 4 and 5 on the grounds of relevance. Thus, the relevance objection is timely before the Court. No other objection was raised to the document production until the date of the deposition.
At oral argument, counsel for Gary Condit argued that the subpoena was overbroad, i n an attemp to show good cause for the Court to grant relief from untimely objections. See McCoy v. Southwes Airlines Co., Inc., 211 F.R.D. 381 (C.D.Cal. 2002). Counsel equated "overbreadth" with "relevance" The Court disagrees. Overbreath means the party cannot determine what is being asked for in the subpoena. See e.g., In re Grand Jury Proceedings, 707 F. Supp. 1207, 1216 (D.Ha. 1989) (issue o unconstitutional overbreadth in the subpoena involves issues of "reasonable particularity" anc "reasonable time" and the sheer quantity of materials.)
Regardless, the documents requested are "broader" than the issues in the case allow Fed.R.Evid.4Ol defines "relevant evidence" as "evidence having any tendency to make existence of am fact that is of consequence to the determination of the action more probable or less probable than i would be without the evidence." This test incorporates two separate components:
1. Logical Relevance: The evidence must have some tendency, however, slight, to make any fact more or less probable, i.e., is the evidence probative — does it tend to prove or disprove a fact?
2. Legal Relevance: The evidence must relate to a fact "of consequence" to the case, i.e., will the "fact" that the evidence is offered to establish help in determining some issue in the case? 2 Jones Rosen, Federal Civil Trials and Evidence, Evidence, para. 8:111, p. 8B-2 (The Rutter Group 2002).
Broadly requesting Gary Condit's whereabouts (i.e., the chronology) and telephone records, over a two year period, does not tend to show any fact at issue. As the requests are now stated, they are so broad as to become irrelevant. If the requests had been more specific, they may have been relevant to the issues of this case.
At oral argument, defendants asked to amend their document requests to more narrowly tailo the requests to the issues in the case. It is not the function of the Court to rewrite requests or to giving advisory opinions as to the effect of more narrowly tailored requests. Accordingly, as the requests or so broad as to be irrelevant, the Court does not address the privilege issues raised by Gary Condit.
CONCLUSION
For the reasons stated above, Defendants National Enquirer, Inc. and American Media, Inc motion to compel third party witness Gary Condit to produce documents pursuant to a subpoena i DENIED. The Court need not discuss the additional untimely objections since the threshold issue o relevance has not been overcome.IT IS SO ORDERED.
ORDER ON EVIDENTIARY HEARING FOR MENTAL EXAMINATION AND ON DEFENDANTS' MOTIQNTO COMPEL ANSWERS TO CAROLYN CONDIT'S DEPOSITION
Two matters came on for hearing on June 17, 2003 at 10:00 a.m. in Department 6 of this Court: (1) An evidentiary hearing on the scope of the proposed mental examination of Carolyn Condit, and (2) A motion by Defendants to compel Carolyn Condit: (a) to answer deposition questions to which the marital communications privilege was asserted, and (b) to order plaintiff to answer questions during her mental examination which implicate marital communications. Plaintiff Carolyn Condit appeared by counsel Neville Johnson of Johnson Rishwain. Defendants National Enquirer, Inc. and American Media, Inc. appeared by counsel Thomas Kelley and Steven Zansberg of Faegre Benson and by counsel Bruce Owdom of Dietrich Galsrud Malleck and Aune.On June 12, 2003, the parties lodged their Joint Statement Re Discovery Disagreement and accompanying exhibits, which were filed with the Court on June 16, 2003.
At the hearing on June 17, 2003, this Court heard testimony by witnesses Kathleen Matthews, M.D. ("Dr. Matthews"), and Dale E. McNiel, Ph.D. ("Dr. McNiel"3) as to the motion for mental examination pursuant to Fed.R.Civ.P. 35. The Court heard extensive argument from counsel as to the motion for mental examination and as to the motion to compel answers to depositions questions and waiver of the marital communications privilege. Having considered the parties' Joint Statement, the testimony of Dr. Matthews and of Dr. McNiel, as well as the arguments of counsel and the Court's file, the Court issues the following order.
FACTUAL BACKGROUND
Ms. Condit is the wife of former Congressman Gary Condit and pursues libel claims against the National Enquirer and its parent company, defendant American Media, Inc. Ms. Condit's first amended complaint alleges three claims for Libel based on two articles published by the National Enquirer and American Media. The two news articles were published in the August 7, 2001 and September 4, 2001 editions of The National Enquirer. The article reported Ms. Condit's purported conversations with Chandra Levy, a Bureau of Prisons intern with whom Mr. Condit had a relationship. The publications purport to recount a conversation in which Mrs. Condit "blew up" at Chandra Levy and attacked her. In each of the three libel counts, Ms Condit alleges she suffered general damage in excess of $10 million. Also in each claim, Mrs. Condit alleges she:
"suffered emotional distress, including loss of reputation, humiliation, powerlessness, frustration, and anger, Mrs. Condit has suffered discredit in the eyes of the public for something that never happened." (Amended Complaint para 21, 30. 38.)
The discovery responses to date (including interrogatory answers, responses to production requests, and both party and non-party depositions) have indicated that the claimed emotional distress is more than that claimed in most cases. At the least, it is within the category of "emotional distress plus."
MOTION TO COMPEL THE MENTAL EXAMINATION OF PLAINTIFF CAROLYN CONDIT
Defendant National Enquirer, Inc. seeks a Fed.R.Civ.P. 35 independent mental examination of plaintiff Carolyn Condit. For the Fed.R.Civ.P. 35 mental examination, the National Enquirer seeks psychological testing and interviews of Ms. Condit administered in three sessions over three days, The National Enquirer proposes the mental examination be conducted by Dr. Matthews, a Colorado-licensed psychiatrist and certified by the American Board of Psychiatry and Neurology, in consultation with Renee Binder, M.D., a California-licensed psychiatrist, and Dr. McNiel, a Colorado-licensed psychologist, Dr. Matthews has nearly 20 years experience as a psychiatrist. The National Enquirer proposes Dr. McNiel conduct eight hours of psychological testing on the first day followed by Dr. Matthews conducting two three-hour interviews on the following two consecutive days.Based on the testimony of Dr. Matthews and Dr. McNiel and based on the argument of counsel, the Court GRANTS the motion for a Fed.R.Civ.P. 35 mental examination. At the time of the hearing on this motion, the Court made extensive findings as to the necessity for the examination and as to the scope of the examination. Therefore, the Court incorporates by reference the transcript of the June 17, 2003 hearing regarding the Court's evaluation of the evidence, the Court's findings and the related clarifications requested by counsel. Upon its receipt, the transcript of the hearing will be attached and fully made a part of this order. The Court's evaluation and findings as a result of the lengthy on-the-record discussion, is not fully set out in this order,
MOTION TO COMPEL ANSWERS TO DEPOSITION QUESTIONS AND TO FIND WAIVER QF THE MARITAL COMMUNICATIONS PRIVILEGE
Plaintiff has asserted the marital communication privilege in refusing to answer questions at her deposition. Defendants seek a court order that the marital communications privilege has been waived and to compel plaintiff to answer deposition questions to which she asserted the privilege.
Based upon the parties' Joint Statement and the authorities cited therein and the argument of counsel, the Court DENIES that the martial communications privilege has been waived and DENIES the motion to compel answers to deposition questions. At the hearing on June 17, 2003, the Court made extensive findings regarding this motion. Therefore, the Court incorporates by reference the transcript of the June 17, 2003 hearing regarding the Court's findings. Upon its receipt, the transcript of the hearing will be attached and fully made a part of this order. The Court's evaluation and findings as a result of the lengthy on-the-record discussion, is not fully set out in this order.
IT IS SO ORDERED.