Q: My company and I are being sued for defamation at state court in Miami, Florida. In discovery, the plaintiff has requested all emails between me and others that mention his name. As a reporter, am I protected by law from having to turn over such information?
A: Florida does have a statutory newsgathering privilege for “professional journalists” (a reporter’s shield law) that protects journalists from being compelled to be witnesses or disclosing information obtained while actively gathering news. Fla. Stat. 90.5015.
If information and documents that you believe would be covered by this privilege are being sought through the discovery process, it seems that you would want to object to those specific requests, citing the shied law as support for your objection.
If the other side disputes those objections, it would ultimately be up to a court to decide whether the privilege applies to specific documents, and even if it does apply, whether the three-part balancing test tips enough in favor of the plaintiff here to overcome the privilege.
In short, the statutory balancing test considers whether :
(1) the document is clearly relevant to the issues in the case,
(2) whether the information may be obtained from alternative sources, and
(3) whether a compelling interest exists for requiring disclosure. Id.; News-Journal Corp. v. Carson, 741 So. 2d 572, 575 (1999).
In the News-Journal case, the court found one document sought by the plaintiff in a libel suit against the newspaper was not privileged because the defendant-newspaper had disclosed that document together with an affidavit in connection with the court proceedings, and therefore the privilege had been waived. News-Journal Corp., 741 So. 2d at 574.
As to a second document sought by the plaintiffs, the court found that it fell within the statutory shield law’s privilege, but that the three-part balancing test tipped in favor of disclosure since the document was critical to a key legal issue in the case (whether the newspaper acted with actual malice in publishing the libelous information), the document could not be obtained from any other source, and there was a compelling interest in disclosure in order to give the plaintiff his day in court. Id. at 575-76.
Obviously, each case is unique and fact-specific, and any action you take now could affect your ability to invoke the privilege at a later date.
To that end, if you do not already have counsel to represent you in this matter, you might want to contact a Florida attorney who specializes in defamation law to assist in your defense.
Bryan Cave LLP is general counsel for the First Amendment Coalition and responds to FAC hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.