finding that “knowledge of the identity of the informant is necessary to proper preparation and presentation of the case”Summary of this case from United States v. Sterling
October 23, 1980.
James M. Schendle, Charles L. Babcock, Dallas, Tex., for defendants-appellants.
George K. Rahdert, St. Petersburg, Fla., Richard M. Schmidt, Jr., Washington, D.C., for The American Society of Newspaper Editors, et al.
Otto B. Mullinax, Dallas, Tex., for plaintiff-appellee.
Appeal from the United States District Court for the Northern District of Texas; Eldon B. Mahon, Judge.
Before COLEMAN, Chief Judge, and FRANK M. JOHNSON, Jr. and POLITZ, Circuit Judges.
ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC  (Opinion July 15, 1980, 5 Cir., 1980, 621 F.2d 721)
Having considered the application for rehearing with suggestion for rehearing en banc filed by the appellants, IT IS ORDERED that the opinion of this court be supplemented by adding the following paragraph to 621 F.2d 721 immediately before the paragraph enumerated as syllabus number 9:
We do not mean to intimate that a plaintiff will be entitled to know the identity of the informant merely by pleading that he was injured by an untrue statement. Before receipt of such information the plaintiff must show: substantial evidence that the challenged statement was published and is both factually untrue and defamatory; that reasonable efforts to discover the information from alternative sources have been made and that no other reasonable source is available; and that knowledge of the identity of the informant is necessary to proper preparation and presentation of the case. From our review of the record, we are satisfied that all of these requirements have been met.
The application for rehearing filed by the appellants is in all other respects DENIED and no member of this panel nor Judge in regular active service on the Court having requested that the Court be polled on rehearing en banc, (Rule 35 Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 16) the petition for rehearing en banc filed by appellants is also DENIED.