Sunday, October 4, 2009

Fourth District Reverses Discovery Order Based Upon Journalist's Privilege To Withhold Confidential Informant Information

In, Inc. v. Carroll (4D09-2649), the Fourth District granted "the petition for writ of certiorari and quash the order denying petitioners’ motion and granting respondent’s motions. We remand the case with instructions to enter an order requiring the return of the documents identified in petitioners’ motion to compel return, striking the use of the documents for any purpose and barring respondent from any further use of, reference to, or reliance on, the privileged information."

The petitioners asserted they inadvertently produced two unredacted documents that revealed the names of a confidential informant.  The respondent/plaintiff refused to return the documents arguing the reporter was using the information as both a sword and a shield.  The court stated:
Certiorari lies to review these orders compelling production of documents and information claimed to be protected under the qualified journalist’s privilege in Florida...First, we find that the material and irreparable harm element of certiorari has been demonstrated by virtue of the privilege being asserted, such that this would be “cat out of the bag” irreparable harm...We also find that the trial court’s order departed from the essential requirements of law when it ordered the discovery notwithstanding petitioners’ assertion of the Florida journalist’s privilege.
We disagree with the trial court’s conclusion that petitioners asserted this privilege as both a sword and shield in this case because they did not assert any claims or pleadings seeking affirmative relief...Instead, the discovery in dispute related to an affirmative defense. Further, even if the sword and shield doctrine were to apply in this case, the proper remedy would be to dismiss or strike petitioners’ defenses and not to compel production of the very information claimed to be privileged.


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