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July 18, 1980

In the Matter of the Application of CONSUMERS UNION OF UNITED STATES, INC. To quash subpoenas issued in aid of an action entitled: Dr. Chester A. WILK, D.C., et al., Plaintiffs,

The opinion of the court was delivered by: LEVAL


On October 12, 1976, Chester Wilk filed an action in the Northern District of Illinois on behalf of himself and a class of similarly situated chiropractors against, inter alia, the American Medical Association and the American College of Radiology, alleging that the defendants conspired to defame chiropractors and restrain the spread of chiropractic, in violation of the Sherman Act, 15 U.S.C. ยง 1 (1978). In 1975 Consumers Union ("CU") published in Consumers Reports ("CR") a series of articles authorized by a CU reporter Joseph Botta. The articles were on the subject of chiropractic and came to a negative evaluation. Nearly four years after the filing of the lawsuit and five years after the publication of the articles, plaintiffs and defendants in Wilk v. AMA have decided, for different reasons, to seek discovery of CU and Joseph Botta on the 1975 articles. CU moves to quash the subpoenas on the ground that their enforcement would represent an unwarranted incursion into the freedom of the press and related values secured by the First Amendment.

 For the reasons stated below, the motion to quash is granted in part and denied in part.

 The defendants were first to seek such discovery by serving a subpoena ad testificandum on CU and Joseph Botta. Thereafter the plaintiffs served subpoenas duces tecum and ad testificandum. CU and Botta move to quash all the subpoenas, claiming that such discovery interferes unreasonably with the freedom of the press under the First Amendment.

 Because the issues raised by these applications turn on the nature of the question to be asked, the relationship of such matters to the issues in dispute, the availability of such information from other sources and other variables which turn on the particular inquiry to be made, I requested the parties seeking discovery of CU to submit a detailed list of the subjects on which the discovery is sought, together with a description of its relevance and the reasons for the need.

 The defendants seek to examine Mr. Botta on fifteen categories of issues, including, inter alia, his qualifications; the methodology he employed in researching the articles; the sources for his article (previously disclosed and undisclosed); the procedure by which he formed his conclusions; and, the number of reprints ordered of his article. The stated purpose of these inquiries is to develop a basis for introducing the CR articles at trial, through Mr. Botta, as evidence that an independent entity with no relationship to the alleged conspiracy studied chiropractic and published conclusions similar to the conclusions maintained by the defendants over the years of the alleged conspiracy. Apparently, the relevance of the CR articles to the defense lies in their claimed tendency to render more likely the possibility that the defendants could have maintained and publicized strongly negative views regarding chiropractic without harboring malice or anticompetitive intent towards the chiropractic profession.

 The plaintiffs have listed 32 areas of inquiry regarding which they seek discovery from CU and Botta including, inter alia, materials transmitted by various named individual defendants to Botta; the substance of conversations held between Botta and the named individuals; materials submitted by unnamed, alleged co-conspirators to Botta; the extent of Botta's reliance on various materials or whatever was transmitted to him in the course of these conversations; Botta's methodology; as well as other matters raised by the defendants.

 The plaintiffs contend that the articles are evidence of an allegation in their complaint that the defendants employed apparent independent entities as instruments of their conspiracy. The plaintiffs hope to prove that the unwitting CU was fed misinformation by the defendants who did so as part of their anti-competitive conspiracy to destroy chiropractic. The plaintiffs contend that they seek discovery from CU to obtain direct evidence of the conspiracy described in the complaint.

 CU contends that it should be relieved of the burden of responding to both parties' subpoenas. It contends that the First Amendment interest in encouraging the press to address controversial subjects is threatened by this discovery and that the parties are abusing the subpoena power in attempting to compel CU to serve as an involuntary expert witness to a dispute between two groups of health care professionals, each of which has ample access to alternative sources of expert testimony; CU also contends that the parties have made insufficient showing of relevance or importance to overcome the First Amendment interest threatened by the subpoenas.

 The Supreme Court instructs in Branzburg v. Hayes, 408 U.S. 665, 710, 92 S. Ct. 2646, 2671, 33 L. Ed. 2d 626 (1972), that resolution of the balance of interests implicated by subpoenas of non-party journalists should be approached on a case-by-case basis, with careful attention to the facts of each case.

 Both Branzburg v. Hayes, supra, and the Second Circuit case of Baker v. F & F Investment, 470 F.2d 778, 785 (2d Cir. 1972), which addressed the issues raised in Branzburg in the context of civil discovery, require consideration of a range of factors before resolving in which direction the balance of interests tips. These factors include the nature of the suit in which discovery is being sought, see Baker v. F & F Investment, supra, 470 F.2d at 783, 785; Citicorp v. Interbank Card Ass'n, 478 F. Supp. 756, 4 Med.L.Rptr. 1429 (S.D.N.Y.1978), the extent to which the information sought goes to the "heart of the claim" of the party seeking disclosure, see Garland v. Torre, 259 F.2d 545, 549 (2d Cir.), cert. denied, 358 U.S. 910, 79 S. Ct. 237, 3 L. Ed. 2d 231 (1958), whether the party seeking discovery had exhausted other sources for the information in question, see Baker v. F & F Investment, supra; Application of Consumers Union, 4 Med.L.Rptr. 2119 (S.D.N.Y.1978), and, the impact of the requested discovery on First Amendment interests, see, e.g., Branzburg v. Hayes, supra; Apicella v. McNeil Laboratories, Inc., 66 F.R.D. 78, 80 (E.D.N.Y.1975).

 As a preliminary matter, I reject the defendants' contention that their subpoena implicates no interest cognizable under the First Amendment. The defendants claim that they do not now seek the names of undisclosed sources for Botta's article, and that therefore the balancing test required by Branzburg and Baker has no application.

 Their contention that the discovery is outside of First Amendment concern because it does not seek to identify confidential sources is a total misconception of the scope of the free press interest. Regardless whether they seek confidential sources, they seek to examine the reportorial and editorial processes. The fact that their purpose is to support, rather than undermine, the bona fides of the conclusions expressed makes no difference. Such discovery would represent a substantial intrusion on fact gathering and editorial privacy which are significant aspects of a free press. See In re Subpoena of Forbes Magazine, 494 F. Supp. 780, M8-85, (S.D.N.Y.1980).

 Furthermore, such discovery proceedings would seriously hamper CU's ability to function in its editorial role. See Yiamouyiannis v. Consumers Union, 619 F.2d 932 (2d Cir. 1980). CU contends convincingly that if it is susceptible to being drawn into private disputes between commercial or other institutional entities simply because CR has expressed an opinion favorable to the successful resolution of the dispute in favor of one side or the other, a significant burden will be placed on CU's coverage of provocative issues important to the public. *fn1" I agree, and I find that the ...

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