The Reporter covers Miller, Morgan and Camden County in Central Missouri's Lake of the Ozarks and is published once per week on Wednesdays.

 

Published February 14, 2018

Judge refuses to stop journalist’s deposition

CAMDEN COUNTY – An effort to quash the subpoena of a local journalist has failed, despite a judge’s order quashing part of the subpoena.

Lake Sun Journalist Joyce Miller (Executive Editor of Lake Media) was ordered to give a deposition in the lawsuit filed by Rowland Todd against County Commissioners Greg Hasty, Don Williams and Beverly Thomas.

Todd is claiming the commissioners violated his First Amendment rights of Freedom of Speech because he spoke out against what he felt was the county wasting money in the hiring of a new Human Resources Administrator and also claims that Hasty publicly called him a thief in that he “stole records” from the Human Resource Department.

It was not stated why Miller, who is not a party in the case, was ordered to give a deposition.

The initial deposition of Miller was scheduled for January 15 of this year but a filing by Attorney Jean Maneke (who is also the attorney for the Missouri Press Association) to quash the subpoena delayed the deposition.

In her 15 page filing against the deposition order filed on January 11, Maneke stated multiple case laws regarding the subject and summed up the situation in two objections:

“As set forth in more detail in the attached Memorandum of Points and Authorities, the
Defendant’s (the three county commissioners) Subpoena should be quashed on two independent grounds:
1. The Defendants cannot meet the standard under Federal Rule of Civil Procedure Rule 30 (b)(2), because there is no testimony Ms. Miller can offer in this matter which is relevant, and the Subpoena lacks specificity in regard to documents sought and testimony specifically sought.
2. Independently, the qualified federal reporter’s privilege under the First Amendment to the United States Constitution protects Ms. Miller against the compelled disclosure of information acquired in connection with her newsgathering activities. (As set out in the following Memorandum of Points and Authorities, specifically in relation to the case of U.S. v. Burke, 700 F.2d 70 (C.A.2d (N.Y.), 1983, and related cases). The Defendants cannot meet the strict standards for overcoming this constitutional privilege, which requires 1) exhaustion of alternative sources; 2) a showing that the information sought would not be cumulative; and 3) a showing that the information sought is clearly relevant to an important issue. (This standard is discussed in detail in the attached Suggestions in Support in this matter). In considering the important First Amendment interests at stake, this Court should also consider the language and interpretation of the Missouri case law offering some shield law protection at the state level, as further set out in the attached Memorandum of Points and Authorities in Support.)”

Maneke also stated if the court refuses to quash the subpoena, another option is requested:

“In the alternative, if this Court declined to quash the Subpoena in its entirety, Ms. Miller requests an order prohibiting counsel for the parties from questioning her about any unpublished information and limiting any testimony solely to the contents of any published articles...”

The initial request for documents from Miller is very broad in nature and very invasive, as Maneke said in another filing on January 18.

“1. Defendants’ purpose clearly is to delve into the reporter’s thought processes.
Defendants set out clearly in their Suggestions in Opposition to this Motion, page 8, that their purpose is to investigate what the journalist sought as resource material for her stories and why she made certain requests for access to public records. There is no suggestion by the Defendants that the information which was published in stories was not freely available to the public through sunshine requests or other means.

“Instead, they specifically seek to explore the mental thought process of this journalist as to where she obtained information, claiming that she is the custodian of evidence that shows whether Plaintiff’s letter was a form of personal speech (as the Plaintiff contends in his petition) or, as Defendants argue, it was an “inner-office communication between officials regarding personnel matters.” Do Defendants’ counsel intend to ask Movant what Plaintiff’s mental intent was? What evidence do they have that this journalist knows another person’s “mental intent”? Instead, this inquiry will clearly lead to Defendants’ counsel asking Movant to disclose her mental intent and process which created this story.

“It is simply clear that the Defendants do not have a valid basis at this time to breach the basic First Amendment rights of the reporter in her newsgathering processes. Until that time comes, this Court should quash this subpoena.”

To inform readers what the commission’s attorney (Katherine A. O’Dell) is seeking, the following is the documents that they have requested Miller produce in their subpoena.

“1. A copy of all documents (including but not limited to letters, emails, texts and other electronic messages) showing communication between you and any Camden County official or employee from October 1, 2016 to present regarding Brianna Christensen, or Brianna Christensen’s payroll records, timesheets, Employee Change Authorization forms, CERF documentation, employment agreements, or other personnel records.

“2. A copy of all documents (including but not limited to letters, emails, texts and other electronic messages) showing communication between you and any Camden County official or employee from October 1, 2016 to present regarding any correspondence by him to the Camden County Commissioners.

3. A copy of all documents (including but not limited to letters, emails, texts and other electronic messages) showing communication between you and any Camden County official or employee from October 1, 2016 to present regarding the investigation by Husch Blackwell, the engagement letter for the investigation, or the bills reflecting attorneys’ fees for the investigation.

“4. A copy of all documents (including but not limited to letters, emails, texts and other electronic messages) showing communication between you and any Camden County official or employee from October 1, 2016 to present regarding surveillance video recorded inside the Camden County Courthouse at any time from December 15, 2016 to February 10, 2016.

“5. A copy of all documents (including but not limited to letters, emails, texts and other electronic messages) showing communication between you and any Camden County official or employee from October 1, 2016 to present regarding any commission meeting (open or closed), the minutes of any such meeting, motions made therein, or discussions had therein.

6. A copy of all documents (including but not limited to letters, emails, texts and other electronic messages) showing communication between you and any Camden County official or employee from October 1, 2016 to present regarding CERF, LAGERS, or retirement benefits of Camden County employees.

“7. A copy of all written or recorded notes, statements, or documents prepared by you from October 1, 2016 to present memorializing your communication with any Camden County official or employee regarding Brianna Christensen, CERF, the investigation by Husch Blackwell into the allegation of a hostile work environment, surveillance video from the Camden County courthouse, Rowland Todd’s letter to the Commissioners dated February 21, 2017, or the present lawsuit by Rowland Todd against the Camden County Commission.

“8. A copy of all statements by Greg Hasty, Don Williams, or Beverly Thomas, whether written or recorded by any means, regarding Brianna Christensen, CERF, the investigation by Husch Blackwell into the allegation of a hostile work environment, surveillance video from the Camden County courthouse, Rowland Todd’s letter to the Commissioners dated February 21, 2017, or the present lawsuit by Rowland Todd against the Camden County Commission.

“9. A copy of all Sunshine Law requests you have made to Camden County from October 1, 2016 to present and the response you received.

“10. A copy of all documents (including but not limited to letters, emails, texts and other electronic messages) showing communication between you and Jay Kirksey regarding the subject matter of the present lawsuit by Rowland Todd, including but not limited to the allegations in Rowland Todd’s letter to the Commissioners dated February 21, 2017, the investigation by Husch Blackwell, and any meeting or statement of the Camden County Commissioners.”

This is what was requested by O’Dell in the January 11 subpoena request.

On February 2, 2018, United States District Court Judge Brian C. Wimes issued an order regarding the motion by Maneke to quash the subpoena.

“On November 8, 2017, Defendants served non-party Joyce Miller with a subpoena and Notice to Take Deposition Duces Tecum. The deposition was scheduled for January 15, 2018. On January 5, 2018, Miller notified Defendants she did not intend to appear for deposition or to provide any documents. Miller filed the instant motion to quash on January 11, 2018. Miller asserts two independent grounds for why the subpoena should be quashed: (1) the subpoena lacks specificity about the documents and testimony sought and Miller does not have relevant information; and (2) a qualified reporters’ privilege shields Miller from disclosing information acquired in connection with newsgathering activities, and Defendants have not made the requisite showing to outweigh the privilege. Miller argues, in the alternative, the Court should issue an order limiting Defendants’ inquiry to published contents only.

“In this case, the Court has considered the parties arguments and agrees, at least in part, with Miller’s assertion that Defendants’ requests for documents are overbroad and lacking in specificity. Consistent with the telephone conference discussion, the parties shall meet and confer regarding the intent of the categorical document requests and Defendants shall provide to the deponent more specificity.

“In this case, Miller’s general assertion of qualified reporter’s privilege is insufficient.
Specifically, Miller shall appear at the deposition for which she has been subpoenaed. Further, to the extent she believes she can, Miller shall answer questions posed by Defendants. In the event Miller believes the response to a particular question is shielded by privilege, she may assert a privilege in response to that particular question. After Defendants take Miller’s deposition and Miller specifically asserts the qualified reporter’s privilege in response to certain questions, Miller should provide the court with “particular allegations or facts that support” her claim that the qualified reporter’s privilege should apply to that specific question and/or request for documents. ‘Only if a reporter provides such information can a court determine whether the reporter is properly invoking the privilege and whether the balance should be struck in favor of non-disclosure.’ In the event that, based on Miller’s specific assertion of privilege with respect to specific questions and/or document requests and factual basis for why she believes the privilege applies to the specific question or request, the Court may conduct a review of Miller’s potential responses in camera.

“Accordingly, it is hereby ORDERED Non-Party Miller’s Motion to Quash Subpoena is GRANTED IN PART and DENIED IN PART. The Court’s partial denial of the motion is without prejudice to re-filing.”

Without prejudice means that O’Dell can file the same request again, which is exactly what she did on February 7.

The subpoena for Miller’s deposition was re-filed and the request to produce documents was again submitted word for word as the original.

Miller’s deposition was scheduled for February 13. Depositions are not open to the public or to the press and the transcripts or recordings of the depositions that have been taken have not been made available by the federal court.

Only sections of certain depositions have been mentioned in other documents filed with the court by the attorneys involved in the case.

The lawsuit is ongoing.

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