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Johnson v. School District No. 1 In The County of Denver and State

United States District Court, D. Colorado

February 25, 2014

LISA M. JOHNSON, Plaintiff,


MICHAEL E. HEGARTY, Magistrate Judge.

Before the Court is a Motion to Quash Subpoena Duces Tecum Served upon Non-Party Witness Susan Greene and for Protective Order [filed December 27, 2013; docket # 80]. The motion is referred to this Court for disposition. (Docket # 82.) The matter is fully briefed, and oral argument would not assist the Court in its adjudication. For the reasons that follow, the Court GRANTS the motion to quash.

I. Background

Plaintiff Lisa Johnson ("Johnson") initiated this action on October 12, 2012 in Denver County District Court against School District No. 1 in the County of Denver and State of Colorado ("District") and the Board of Education of School District No. 1 ("Board") (collectively "Defendants"). (Docket # 4.) In essence, Johnson claims that Defendants violated her rights to freedom of speech under the First Amendment and to due process under the Fourteenth Amendment, and her rights under the Teacher Employment, Compensation and Dismissal Act ("TECDA"), Colo. Rev. Stat. § 22-63-101 et seq. by assigning her to unfavorable positions and placing her on unpaid leave at the commencement of the 2012-13 school year.

On November 9, 2012, Defendants removed the action to this Court pursuant to 28 U.S.C. § 1441(a) governing federal question jurisdiction. (Docket # 1.) Then, pursuant to Fed.R.Civ.P. 15(a), Plaintiff filed as a matter of course a First Amended Complaint and Jury Demand on December 4, 2012. (Docket # 13.) In response, Defendants filed a motion to dismiss the amended pleading, which was referred to this Court for recommendation. (Dockets ## 21 and 25.) On March 18, 2013, this Court issued a Report and Recommendation that the District Court grant Defendants' motion to dismiss the Amended Complaint based upon various grounds. (Docket # 37.)

On September 23, 2013, the Honorable Marcia S. Krieger adopted this Court's recommendation to dismiss the due process and TECDA claims, but permitted the First Amendment retaliation claim to proceed and granted the Plaintiff leave to amend four paragraphs of the operative pleading. (Order, docket # 65.) Accordingly, the Second Amended Complaint (docket # 66), minus the due process and TECDA claims, is the operative pleading in this case. ( See id. at 15-16.) The pleading alleges generally that Defendants engaged in a series of adverse employment actions culminating in her eventual termination as a teacher for the school district. ( See docket # 66.) Plaintiff claims that Defendants took these various adverse actions in retaliation for her May 6, 2010 testimony before the Colorado legislature opposing the passage of Senate Bill 10-191, which Defendants strongly supported. ( Id. )

The present motion was filed on December 27, 2013 by a non-party witness, Susan Greene, seeking an order to quash a subpoena duces tecum served upon her by the Plaintiff and to prevent her from disclosing information allegedly protected by the First Amendment to the United States Constitution. Greene, a former columnist for the Denver Post newspaper, argues that Plaintiff's subpoena seeks to compel her "to testify to information she obtained while gathering news, and more specifically to identify sources who are not named in her column, " which was published three days after Plaintiff testified before the Colorado legislature. (Motion, docket # 80 at 5.) Greene contends that her information and sources are not only irrelevant to Plaintiff's retaliation claim, but also that the Plaintiff has failed to exhaust alternative sources of the requested information. Greene also asserts that her First Amendment concerns outweigh the Plaintiff's need, if any, for the information.

Plaintiff counters that any reporter's privilege is overcome in this case by the relevance of the information to her First Amendment claim and by the fact that she has been unable to obtain the information from other sources. Plaintiff asserts that, according to the content of Greene's article, Defendants' administrators provided Greene not only oral information concerning the Plaintiff's employment, but also personnel documents pertaining to the Plaintiff; Plaintiff claims such conduct is directly in contravention of Defendants' policies and procedures, and demonstrates improper retaliatory conduct just days after Plaintiff testified concerning Senate Bill 10-191. Plaintiff states that she has attempted to obtain the information directly from the Defendants through discovery, but the Defendants claim they have no knowledge of any employee speaking with Greene - other than Defendants' communications director - or providing Greene with personnel documents. Plaintiff also deposed the communications director, but he denies providing Greene with any documents and provided her only limited information about the Plaintiff. Plaintiff argues that the circumstances of her case are distinguishable from those cases cited by Greene, and more akin to cases in which the reporter's privilege was overcome.

Greene replies that any statements made by Defendants' personnel in the May 9, 2010 article are not adverse employment actions and were not part of any pattern of adverse employment action; as such, Greene argues the relevance of information underlying the article is marginal. Greene also contends that Plaintiff has not exhausted other information sources in failing to take the depositions of persons involved in the development of and advocacy for Senate Bill 10-191. Finally, Greene asserts that she should not be ordered to provide testimony that would breach a promise of anonymity unless and until the District Court rules on issues raised in Defendants' motion for summary judgment regarding the alleged adverse employment actions.

The Court has reviewed the motion, briefs and exhibits and is now fully advised on the premises.

II. Analysis

The Tenth Circuit has recognized the application of a "reporter's privilege" under the First Amendment to civil cases. Silkwood v. Kerr-McGee Corp., 563 F.2d 433, 438 (10th Cir. 1977). "To overcome the newsperson's privilege under the First Amendment, the party seeking information from a reporter has the burden of showing that 1) the information sought is centrally relevant, and 2) the information is unavailable from other sources." Re/Max Int'l, Inc. v. Century 21 Real Estate Corp., 846 F.Supp. 910, 911 (D. Colo. 1994) (citing Silkwood, 563 F.2d at 438). In fact, the Tenth Circuit has interpreted its opinion in Silkwood as follows:

when the subject of a discovery order claims a First Amendment privilege not to disclose certain information, the trial court must conduct a balancing test before ordering disclosure. Silkwood, 563 F.2d at 438. Among the factors that the trial court must consider are (1) the relevance of the evidence; (2) the necessity of receiving the information sought; (3) whether the information is available from other sources; and (4) the nature of the information. See id. The trial court must also determine the validity of the claimed First Amendment privilege. Only after examining all of these factors should the court decide whether the privilege must be overborne by the need for the requested information.

Grandbouche v. Clancy, 825 F.2d 1463, 1466-67 (10th Cir. 1987). While Grandbouche specifically addressed a First Amendment associational claim, the Grandbouche factors are meant to permit a court to balance the need for First Amendment protection (without regard to the subject matter of the privilege) with the need for discovery and, thus, this Court finds it appropriate to apply the factors here, where Greene asserts protection under the reporter's privilege. See Price v. Time, Inc., 416 F.3d 1327, 1343 (11th Cir. 2005) (citing Miller v. Transamerican Press, Inc., 621 F.2d 721, 725 (5th Cir.), modified on reh'g, 628 F.2d 932 (5th Cir. 1980)).

A. Validity of Claimed First Amendment Privilege

Essentially, the reporter's privilege protects from disclosure certain information gathered by news reporters. Id. Here, the parties do not dispute that Greene intended to use the information gathered by sources, the identities of whom are now sought by the Plaintiff, for the dissemination of such information to the public throughout the newsgathering process. See von Bulow by Auersperg v. von Bulow, 811 F.2d 136, 144 (2d Cir. 1987). Accordingly, ...

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