Available outside my office.
Mean: 32.85
Median: 36
High: 45
Sample answer after the jump.
Appellant Catherine Herride (“Herridge”) appeals a district court orderenforcing and refusing to quash a subpoena compelling non-party Appellant to answer questions and provide documents revealing the identity of a source for a story, and a second order holding Appellant in contempt for failing to comply with that order. We AFFIRM.
An order holding a person in contempt for violating an order enforcing a subpoena is a final and appealable order. Once this court has jurisdiction over the contempt order, it can review the underlying order enforcing the subpoena and compelling discovery. Myers (D.C. Cir. 2004). Because the former turns on the latter, we discuss them in reverse order.
Discovery Order
Discovery in a civil action can be sought from non-parties pursuant to a subpoena. FRCP 45(a)(1)(B), (C). On motion, the court must quash a subpoena that seeks privileged information. FRCP 45(d)(3)(A)(iii).
The subpoena must seek discoverable information—it must be non-privileged, relevant to any party’s claim or defense, and proportional to the needs of the case, considering a balance of factors. FRCP 26(b)(1). Proportionality ensures that the cost and burden of discovery aligns with size and import of the case—that large discovery is reserved for cases that warrant it. The proportionality analysis considers: “the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” Information need not be admissible in evidence to be discoverable, FRCP 26(b)(1), only reasonably calculated to lead to the discovery of admissible evidence.
Herridge argues that the identity of her sources is privileged under the qualified reporter’s privilege of Lee (D.C. Cir. 2005) and that the information is not otherwise discoverable.
Nonprivileged
Lee recognizes a qualified privilege for reporters to protect the identity of their sources, designed to ensure that sources will speak openly with reporters, allowing reporters to publish information of public concern.
The reporter first assert the privilege and show that the information from the source is a on a matter of public concern. Lee. Herridge invoked the privilege twice—first in moving to quash the plaintiff’s subpoena, then in declining to answer questions at her deposition. Plaintiff conceded the news story based on the confidential sources’ information was on a matter of public concern.
The burden now shifts to the party seeking discovery (plaintiff) to show two things. She must show need for information, considering whether the information is “central” or goes to the “heart” of the case, particularly where plaintiff must prove intent or willfulness. Lee. Then she must show that she made diligent efforts to obtain the information from alternative sources that that she exhausted every reasonable alternative source of information prior to seeking the information from a journalist. Lee.
Plaintiff carried her burden. The information goes to the “heart” of the case. Plaintiff sued the FBI under the Privacy Act, alleging that agents disclosed to Herridge information contained in government records. Plaintiff alleges that Herridge’s story relied on information in government records and that the agency (or an agent) disclosed those records. (Compl. ¶¶ 29-31). To prove her claim—that the FBI disclosed government records to Herridge—she must learn the identity of the person who disclosed those records to Herridge. This is especially true because Plaintiff brings her claim under § 552a(g)(1)(D), which requires her to show the agency acted in a manner that was intentional or willful. § 552a)(g)(4).
And plaintiff has made and exhausted diligent efforts to obtain the information from a source other than Herridge. Her motion represented that, prior to issuing the subpoena to Herridge, Plaintiff took the following steps: Served discovery requests--document requests (FRCP 34), interrogatories (FRCP 33), and requests for admission (FRCP 36)—on defendants; deposed 18 current and former government employees; issued a dozed subpoenas on sources other than Herridge; and obtained declarations from 22 government personnel connected to the investigation, all denying being the source. Subpoenaing a journalist was not Plaintiff’s first (or even tenth) attempt to discover this necessary information. Her efforts were exhaustive and diligent but unsuccessful. She has shown that obtaining the information from a journalist offers the lone remaining path to this information.
Relevant
The information is relevant for the reasons it is not privileged—it is central to and goes to the heart of the case. Plaintiff must prove the very fact the information sought shows—who from the federal government improperly disclosed government records to Herridge.
Proportionality
The discovery is proportional to the needs of the case, balancing those considerations. The action involves important issues—alleged unlawful action by a government agency in disclosing public records. Plaintiff alleged that, following the news report based on the unlawfully disclosed records, Department of Defense terminated her school from federal tuition-assistance programs, causing UMT to lose enrollment and revenue and Chen to lose income and suffer investment losses. Plaintiff lacks access to the relevant information; she took extensive steps to obtain the information from other sources. The information is essential to resolve this action, as shown in the discovery of centrality. Beyond not wanting to disclose her sources—a concern the court rejected, above—the burden of the discovery does not outweigh its importance to the action.
The information is not privileged and is otherwise discoverable. The district court therefore correctly enforced the subpoena and compelled Herridge to comply
Contempt
We turn to whether the court properly held Herridge in contempt for refusing to answer questions and provide documents. The court may “hold in contempt a person who, having been served, fails without adequate excuse to obey the subpoena or an order related to it.” FRCP 45(g). Contempt offers the sole mechanism to ensure compliance with a subpoena.
Herridge offered a good excuse for non-compliance—to be held in contempt and have an opportunity to appeal the discovery order. The court suspended the contempt fines for that reason. But contempt and a daily fine were proper, given Herridge’s willful disregard of the order.
