CABLE NEWS NETWORK, INC. v. MICHAEL BLACK, M.D., MBA

       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

    CABLE NEWS NETWORK, INC. (“CNN”); ELIZABETH COHEN,
     JOHN BONIFIELD, DANA FORD and ANDERSON COOPER,
                        Petitioners,

                                    v.

       MICHAEL D. BLACK, MD, MBA, and KELLY ROBINSON,
                         Respondents.

                             No. 4D20-1360

                            [October 7, 2020]

  Petition for writ of certiorari to the Circuit Court for the Fifteenth
Judicial Circuit, Palm Beach County; G. Joseph Curley, Jr., Judge; L.T.
Case No. 502016CA001517XXXXMBAA.

  Charles D. Tobin, Jacquelyn N. Schell and John W. Scott of Ballard
Spahr LLP, Washington, DC, and L. Martin Reeder, Jr. of Atherton Galardi
Mullen & Reeder PA, West Palm Beach, for petitioners.

   Christopher W. Kammerer of Kammerer Mariani PLLC, West Palm
Beach, and Thomas A. Clare, Elizabeth M. Locke, Joseph R. Oliveri and
Andrew C. Phillips of Clare Locke LLP, Alexandria, VA, for respondent
Michael D. Black, MD, MBA.

WARNER, J.

   Petitioner CNN seeks certiorari review of a trial court order compelling
production of emails and texts between CNN and its co-defendant in a
defamation action filed by respondent, which CNN asserts should be
protected by the journalist privilege pursuant to section 90.5015, Florida
Statutes (2019). We conclude that the trial court did not depart from the
essential requirements of law in its order and thus deny the petition.

   Respondent Dr. Michael Black sued CNN and its individual journalist
defendants, as well as others including Kelly Robinson, for alleged
defamatory statements made when CNN began reporting in June 2015 on
infant mortality and other topics related to pediatric cardiothoracic
surgeries at St. Mary’s Hospital and by respondent. The complaint alleges
that Kelly Robinson is a key source of the information furnished to CNN
and was motivated to defame respondent because of her association with
another children’s hospital and surgeon. CNN filed an answer and
affirmative defenses denying the falsity of the statements, as well as
denying that they were published with malice or ill will or with knowledge
of their falsity.

   Through discovery, respondent learned that a substantial amount of
communication occurred between CNN journalists and Robinson
regarding its reporting. Respondent served a request for production on
Robinson requesting, among other items, her communications with the
CNN defendants. Robinson responded that she had “no documents
responsive to this request.” Thereafter, the trial court ordered Robinson
to sit for a deposition to describe the steps she had taken to comply with
respondent’s document request.          During that deposition, Robinson
testified that she no longer possessed her text and email communications
with CNN defendants, because she deleted them in an attempt to keep
them confidential. In response to an interrogatory requesting her to state
the substance of those communications, Robinson responded that she
could not recall any specific details of the communications.

    Thereafter, respondent sought production from the CNN defendants of
Robinson’s emails and communications with them. CNN objected, citing
Florida’s qualified journalist’s privilege. It filed a log of over 400 pages to
identify documents and communications claimed as privileged. The log
lists information which admittedly comes from Robinson on such matters
as “Dr. Black;” “the St. Mary’s pediatric heart surgery program;” “the
calculation of mortality rates for congenital heart surgery;” and similar
subjects which related to their reporting.

   The trial court referred the matter to the special magistrate who held a
hearing on the motion to compel. The magistrate’s report concluded that
the privilege was overcome, and disclosure was warranted as to the
communications with Robinson.           The magistrate found that the
communications were relevant, because respondent had to prove that CNN
acted with malice. Further, respondent did not have an alternate means
to secure the information.

   The CNN defendants filed objections to the report. After a lengthy
hearing, the trial court adopted the magistrate’s findings and concluded
that the findings were not clearly erroneous. Although it concluded that
CNN’s objections could be overruled on that basis alone, it also made
independent findings with respect to the journalist’s privilege before
overruling CNN’s objections.


                                      2
   In its ruling, the court applied section 90.5015, which provides a
qualified privilege to a professional journalist “not to be a witness
concerning, and not to disclose the information, including the identity of
any source, that the professional journalist has obtained while actively
gathering news.” As the trial court noted, a party may overcome the
privilege by making a “clear and specific showing” that 1) the information
is relevant and material to the unresolved issues in the proceeding for
which the information is sought; 2) the information cannot be obtained
from alternative sources; and (3) a compelling interest exists for requiring
disclosure of the information.

    In a thorough, fifteen-page analysis, the trial court addressed all of the
criteria. It noted that CNN did not dispute that Robinson was a source for
the news article, citing to specific evidence in the record. As to the
relevance of the information, the trial court explained that the
communications would be relevant to the issue of actual malice to show
“the subjective knowledge of the CNN Defendants and Defendant Robinson
at the time that they published their allegedly defamatory statements.”
Further, because Robinson was also a defendant, her communications
would be relevant to her own subjective knowledge.

   The trial court found a compelling interest for disclosure because of the
unique circumstances of the case: 1) the need for the defamation plaintiff
to prove malice; 2) the centrality of Robinson’s role as a source of CNN’s
reporting; and 3) the fact that Robinson, a co-defendant, deleted her own
copies of the communications and was not protected by journalist
privilege.

   Finally, the trial court determined that the information could not be
obtained from another source, because Robinson had deleted the
communications and had answered in an interrogatory that she could not
recall the details of the communications. Rejecting CNN’s contention that
respondent should be required to take Robinson’s deposition again, the
court concluded that it would be a waste of time and effort after her
answers in depositions and interrogatories.

   The trial court ordered the CNN defendants to disclose the
communications to respondent. CNN then filed its petition for writ of
certiorari.

    The standard for reviewing a petition for writ of certiorari is familiar.
Before a court may grant certiorari relief, the petitioner must establish the
following three elements: “‘(1) a departure from the essential requirements
of the law, (2) resulting in material injury for the remainder of the case (3)

                                      3
that cannot be corrected on postjudgment appeal.’” Williams v. Oken, 

62 So. 3d 1129

, 1132 (Fla. 2011) (quoting Reeves v. Fleetwood Homes of Fla.,
Inc., 

889 So. 2d 812

, 822 (Fla. 2004)). Establishment of irreparable injury
not remediable on appeal is jurisdictional.

Id. Because the denial

of the
journalist privilege would require “cat out of the bag” disclosures, the first
two elements are satisfied. TheStreet.com, Inc. v. Carroll, 

20 So. 3d 947

(Fla. 4th DCA 2009).

   The appellate court then determines whether there has been a clear
departure from the essential requirements of law:

      In granting writs of common-law certiorari, the district courts
      of appeal should not be as concerned with the mere existence
      of legal error as much as with the seriousness of the error.
      Since it is impossible to list all possible legal errors serious
      enough to constitute a departure from the essential
      requirements of law, the district courts must be allowed a
      large degree of discretion so that they may judge each case
      individually.    The district courts should exercise this
      discretion only when there has been a violation of clearly
      established principle of law resulting in a miscarriage of
      justice.

      It is this discretion which is the essential distinction between
      review by appeal and review by common-law certiorari.

Williams, 62 So. 3d at 1133

(quoting Haines City Cmty. Dev. v. Heggs, 

658 So. 2d 523

, 528 (Fla. 1995)).

    The trial court did not depart from the essential requirements of law.
In fact, it followed clearly established law in its analysis. It provided
findings on all the elements of section 90.5015, and applied relevant law.
Because this is a defamation action, upholding the privilege may make
proof of fault impossible because “establishing what the publisher knew
or did not know at the time of publication depends on the kind and quality
of the information and identity of the sources at hand when the publication
was made.” News-Journal Corp. v. Carson, 

741 So. 2d 572

, 576 (Fla. 5th
DCA 1999). Thus, “[w]hen weighed against the possibility that [the
plaintiff] stands to lose his day in court and be denied access to the courts
to redress his alleged libel if the privilege is upheld, . . . the privilege must
give way.”

Id. See also Price

v. Time, Inc., 

416 F.3d 1327

, 1346 (11th Cir.
2005) (“‘To the extent that the disclosure [of even a confidential source]
might illuminate the defendant’s state of mind, it goes to the heart of the
plaintiff’s case, and it is evidence that is not likely to be available

                                       4
elsewhere.’” (quoting Marc A. Franklin et al., Mass Media Law 659 (6th ed.
2000)) [other citations omitted].

    We reject CNN’s argument that the communications are irrelevant given
its claim that Robinson was not the source of any specific defamatory
statement contained in CNN’s reporting. Even if Robinson was not the
source of the calculations of mortality rates, it is clear that there were
communications between Robinson and CNN about those rates and the
respondent. Also, Robinson remained a key source and connection in the
case. Thus, those communications would show what CNN “knew or did
not know at the time of publication,” both on behalf of CNN and also
Robinson, who is also a defendant in the case.

   “[A] plaintiff is entitled to prove the defendant’s state of mind through
circumstantial evidence.” Harte-Hanks Commc’ns, Inc. v. Connaughton,

491 U.S. 657

, 668 (1989).              This includes an accumulation of
contemporaneous documents and communications reflecting the
defendant’s knowledge or state of mind. Herbert v. Lando, 

441 U.S. 153

,
164 n.12 (1979); see also Don King Prods., Inc. v. Walt Disney Co., 

40 So. 3d

40, 44 (Fla. 4th DCA 2010); Stern v. O’Quinn, 

253 F.R.D. 663

, 671 (S.D.
Fla. 2008).      The documents Respondent seeks are precisely those
contemporaneous documents and communications.

   We also reject CNN’s claim that the trial court did not make a clear and
specific finding regarding the availability of alternative sources to
Petitioner of this same information; the court directly and clearly
addressed this issue. Robinson admitted in her deposition that she had
deleted all the communications with CNN defendants. Respondent would
have been entitled to obtain the communications from Robinson if she had
kept them as she would not be protected by the journalist privilege. In her
interrogatory answer she admitted that she could not remember their
details. The trial court made those findings and did not abuse its
discretion in determining that there were no available alternative sources.
The trial court does not abuse its discretion in determining that it would
be futile to require respondent to take Robinson’s deposition again.

    While the journalist privilege must be protected, it is a qualified
privilege. Section 90.5015 provides the procedure to overcome that
privilege when the facts and circumstances of a case require it. The trial
court concluded that respondent overcame the privilege in this case. The
trial court did not depart from any clearly established principle of law.

   Petition denied on the merits.


                                     5
LEVINE, C.J., and CONNER, J., concur.

                          *         *      *

   Not final until disposition of timely filed motion for rehearing.




                                    6
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