The Circuit Court for the City of Richmond, Virginia, recently quashed plaintiff Marathon Resource Group, LLC’s subpoena to a journalist regarding a voicemail she received during the course of an investigation into Marathon’s business practices. See Marathon Resource Group Management, LLC v. Fresh Cuts Lawncare, Inc. et al., Richmond City Circuit Court, Case No. CL 19-5973 (the Order)
In the underlying litigation, Marathon had sued Fresh Cuts Lawncare, Inc. and its owners (collectively “Fresh Cuts”) regarding, among other things, statements made by Fresh Cuts in news reports and via a Facebook page that Marathon had engaged in unfair business practices and failed to pay invoices. Marathon claimed that the purported defamatory statements were harming its business and subpoenaed journalist Kerri O’Brien, of the Richmond affiliate of ABC News, who had obtained statements from Fresh Cuts and others in the course of her investigative report about Marathon’s business practices. Marathon’s subpoena specifically sought to obtain a voicemail recording from O’Brien, which Marathon claimed would substantiate the publication element of its defamation claim against Fresh Cuts. See Order at 2.
O’Brien moved to quash Marathon’s subpoena on grounds of the qualified reporter’s privilege. See id. at 1. As a preliminary matter, the court concluded that O’Brien possessed standing to assert the qualified reporter’s privilege under the First Amendment because, although not an absolute privilege, “in civil proceedings, the First Amendment affords journalist[s] a qualified privilege.” See Gilbertson v. Jones, 2016 WL 6518659, *3 (E.D. Va. 2016). The court then evaluated O’Brien’s assertion of the qualified reporter’s privilege under a three-prong analysis focusing on: “(1) whether the information sought is relevant, (2) whether the information can be obtained by alternative means, and (3) whether there is compelling interest in the information.” See LaRouche v. Nat ‘l Broadcasting Co., 780 F.2d 1134, 1139 (4th Cir. 1986).
The court ultimately quashed the subpoena, finding that, even if the voicemail sought by Marathon was relevant to the underlying litigation, Marathon woefully failed to demonstrate either that the information could not be obtained by alternative means – such as through deposing or cross-examining Fresh Cuts regarding its communications with O’Brien – or that Marathon had a compelling interest in the information sought. The court found that there was no compelling interest in the voicemail because it was not clear that the voicemail “could play an important role in the outcome” of the proceedings, especially because the information sought was alternatively obtainable through Fresh Cuts’ testimony. See Order at 2 (quoting Gilbertston, 2016 WL 6518659, at *5).
The Court’s Order thus provides an important signal that the qualified reporter’s privilege may be especially potent where there is an alternative mechanism to obtain information sought from a journalist, even if that information is relevant to the underlying claims asserted. Parties should be wary of this consideration when choosing whether to incur the time and expense of subpoenaing journalists, particularly where the information could be more efficiently obtained by other means.