Court Allows Subpoena of Media for Unpublished but Nonconfidential Interview Outtakes

An interesting illustration of the qualified privilege that many courts recognize in such cases.

In Alexis v. Kamras (E.D. Va. May 22) (Robert E. Payne, J.), "Betty Alexis, Stephanie Burgess, Chireda Cotman, and Troy Johnson … sued [Richmond Public Schools and Superintendent] Jason Kamras" for libel over Kamras's public statements in the wake of a test cheating scandals at George Washington Carver Elementary School.

"Alexis, Cotman, and Johnson acted as proctors during that SOL testing," and they claim that when "reported irregularities" were investigated, Kamras and the School Board wrongly accused them of being involved:

Kamras and the Richmond School Board allegedly launched a "media campaign designed to lessen the public blow from the [official Virginia Department of Education report on the irregularities] and the cheating implications that flowed from it." …

On the day that VDOE issued its Report, Kamras met with local reporters and read "a prepared statement about the Report in which he essentially vouched in full for the Report." Kamras also published a statement on the RPS's website largely echoing the statement that he had made to local reporters. Additionally, on August 1, 2018, Kamras held a public meeting at Carver and, beforehand, gave a press conference at the school. In that press conference, he allegedly said:

"I want to reiterate that what happened at Carver is unconscionable. The adults who orchestrated this systemic cheating violated a sacred trust with our students and our families. Moreover, pending State approval, I can confirm that none of these individuals will hold a teaching or administrative license in the Commonwealth."

On August 6, 2018, the School Board "voted to approve the resignations of the former Carver principal and five of its teachers—including Alexis and Cotman]." On the same day, Kamras gave an interview to Justin Mattingly …, a reporter at the Richmond Times-Dispatch. That interview allegedly included information about the Plaintiffs, Carver and VDOE's Report. The Richmond-Times Dispatch published an article about the August 6, 2018 School Board meeting, which included statements that Kamras allegedly made during his interview with Mattingly. Specifically, the article attributed the following statement to Kamras: "'The actions were a betrayal of trust, so they can't work for RPS.'" …

In their respective [Complaints], Plaintiffs state that they did not provide any inappropriate assistance to any of the students at Carver….

Plaintiffs demanded that the Times-Dispatch publisher produce the recording of the Kamras interview; the Times-Dispatch refused, citing Fourth Circuit caselaw that provided a limited testimonial privilege to media outlets, but the court held for the plaintiffs:

In civil proceedings, "the First Amendment affords a journalist a qualified privilege." This privilege requires a court to balance a party's interest in obtaining the information at issue with society's interest in ensuring the free flow of information through the press. LaRouche v. Nat'1 Broad. Co. (4th Cir. 1986).

The Fourth Circuit has adopted a three-part test to guide the balancing process, looking to: "(1) whether the information is relevant, (2) whether the information can be obtained by alternative means, and (3) whether there is a compelling interest in the information." … "[A] reporter holds a heightened interest in maintaining the confidences of her sources, but even revealing non-confidential materials burdens the press." "Despite this burden, courts consider the reporter's interest diminished in the absence of both confidentiality and vexation.

The Plaintiffs' subpoena does not implicate the confidentiality of the reporter's source because the source, Kamras, is revealed in the published article. Here, as discussed later, there is also no real burden placed on BH Media because BH Media need only produce a copy of the recorded interview. And, BH Media does not claim vexation….

[1.] Relevance of the Recording

… What Kamras said to Mattingly during the interview is certainly proof of Kamras' state of mind, an element that lies at the core of the liability and damage issues of Plaintiffs' defamation claims. Additionally, as Plaintiffs assert, and given [Kamras'] highly critical statement published in the Richmond-Times Dispatch article and elsewhere, it is plausible to believe that Kamras published other defamatory statements to Mattingly during the course of his interview…..

[2.] Availability of the Information From Other Sources

… BH Media argues that the Plaintiff must "attempt to obtain information equivalent to the contents of the Newspaper's August 6 interview" from alternative sources, and that "Plaintiff cannot make this showing because [they have] not taken Superintendent Kamras' deposition, and nothing precludes [them] from doing so." … But, even if Kamras could testify as to his recollection of the interview, that would not be equivalent to the recording of the interview itself. As the Gilbertson court stated, "Although the defendant's memory could provide an alternative source for the material, his testimony will surely face reliability and credibility attacks at trial."

And, it is beyond dispute that the Richmond-Times Dispatch "is the sole entity in possession of contemporaneous statements made by Kamras about Carver, the Report, and issues related thereto," and the interview cannot be obtained from any other source….

[3.] Compelling Interest in the Information Sought

… [T]he recording can provide proof of Kamras' state of mind and the reasoning for the quoted part of the interview….

[4.] Burden of Producing the Recording on the Newspaper

… While the Court acknowledges that requiring media organizations to produce copious amounts of information in response to every subpoena would be "potentially stifling," producing the single recording at issue can hardly be said to be a burdensome task. Nor has BH Media shown a burden in producing one recording….

Finally, Mattingly and BH Media have a significantly diminished interest in the recording at issue because there is no need to protect Kamras as a confidential source and the subpoena "does not harass the reporter or enlist her as an investigative arm of the litigant. Rather, the subpoena seeks the entirety of what Kamras said. In other words, the subpoena also seeks to capture the outtakes of the interview, … Without any evidence of confidentiality of vexation, the Court finds that the interest in disclosure outweighs the Reporter's interest."