This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
 

STATE OF MINNESOTA
IN COURT OF APPEALS
C5-00-1830
 

Richard Weinberger,
Respondent, 

vs. 

Independent School District No. 622, et al.,
Defendants, 

vs. 

Maplewood Review, et al.,
Appellants.

 

Filed  June 22, 2001
Reversed and Remanded.

Amundson, Judge
 

Ramsey County District Court
File No. C2-99-1269

 

Stephen W. Cooper, 800 Ceresota Building, 155 Fifth Avenue South, Minneapolis, MN 55401 (for respondent) 

Lawrence J. Hayes, Jr., 1155 Center Point Drive, Suite 10, Mendota Heights, MN 55120 (for defendants) 

Mark R. Anfinson, 3109 Hennepin Avenue South, Minneapolis, MN 55408 (for appellants) 

            Considered and decided by Willis, Presiding Judge, Klaphake, Judge, and Amundson, Judge.

U N P U B L I S H E D  O P I N I O N

AMUNDSON, Judge

On appeal from an appealable discovery order in which the district court directed appellants to identify sources for certain statements appearing in a newspaper article, appellants contend that, because they are not parties to the underlying defamation action, the defamation exception to the Minnesota Free Flow of Information Act does not apply and that, even if it did, the court's order does not contain the required findings or analysis.  We reverse and remand.

FACTS

In January 1997, Wally Wakefield and Jason Tarasek were employed as reporters for the Maplewood Review when the newspaper published an article, penned by Tarasek, concerning a school district decision not to retain Richard Weinberger as the head football coach at Tartan High School.  Weinberger had been head coach for ten years and was the subject of some controversy during his tenure.  The article quoted a number of sources who had been promised confidentiality by the newspaper’s reporters.

Weinberger commenced an action against the school district and several of its employees alleging breach of contract, defamation, and related claims.  Notably, Weinberger did not make the Maplewood Review, its corporate owner, or any of its employees or agents parties to the action.

In July 2000, Weinberger served a subpoena on Wakefield and prepared to serve a subpoena on Tarasek.  Wakefield and the Maplewood Review (collectively “the newspaper”) objected to the subpoenas on the ground that they violated the reporter’s privilege.  Weinberger then brought motions to compel answers to interrogatories and to compel the depositions of Wakefield, Tarasek, and Linda Owen, a reporter with the St. Paul Pioneer Press.  The district court denied the motion to compel interrogatories, but permitted the motion to be renewed “if necessary” after the depositions of the named defendants.  Weinberger renewed the motion shortly thereafter and, after a second hearing, the court directed the reporters to identify each source for the statements appearing in the newspaper article.  This appeal followed.

D E C I S I O N

This case involves the construction and application of the Minnesota Free Flow of Information Act, Minn. Stat. §§ 595.021-.025 (2000) (the act or the Free Flow of Information Act).  Statutory interpretation is a question of law, which this court reviews de novo.  Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn. 1998).  Furthermore, application of a statute to the undisputed facts of a case also involves a question of law, and the district court’s decision is not binding on this court.  Boubelik v. Liberty State Bank, 553 N.W.2d 393, 402 (Minn. 1996).

Although the media has only a limited constitutional right not to disclose confidential sources, the Free Flow of Information Act supplements this qualified privilege to carve out a more substantial “reporter’s privilege.”  Bauer v. Gannett Co., Inc. (KARE 11), 557 N.W.2d 608, 609-10 (Minn. App. 1997).  In so doing, the act seeks to balance the interests of the media and society at large in effective newsgathering with the judicial interest in obtaining the truth.  Id.  Its purpose is “to insure and perpetuate * * * the confidential relationship between the news media and its sources.”  Minn. Stat. § 595.022.  To this end, the legislature determined that “the freedom of press requires protection of the confidential relationship between the news gatherer and the source of information,” and that this protection should consist of the news media having the benefit of a “substantial privilege” not to reveal sources of information or to disclose unpublished information.  Id.

Although this privilege is substantial, it is not completely without limitation.  At issue here is the “defamation exception,” which provides that the reporter’s privilege does not apply to defamation actions “where the person seeking disclosure can demonstrate that the identity of the source will lead to relevant evidence on the issue of actual malice,” where “there is probable cause to believe that the source has information clearly relevant to the issue of defamation,” and where “the information cannot be obtained by any alternative means or remedy less destructive of first amendment rights.”  Minn. Stat. §  595.025.

The newspaper first argues that this defamation exception should not apply where the target of a subpoena is not a party to the underlying action.  But the reporter’s status as a litigant, while undeniably important, is not dispositive.  See Bauer, 557 N.W.2d at 611 (describing party status of a disclosure request recipient as one of several factors to be weighed in the district court’s decision).  Accordingly, the district court did not err in failing to find that the defamation exception was, per se, inapplicable.

The newspaper next argues that the district court’s conclusion that the defamation exception applied was unsupported by its findings of fact.  We agree.  District courts are to make their orders regarding disclosure “after making findings of fact.”  Minn. Stat. §595.025, subd. 3.  The importance of these findings was made clear in Bauer.  In that case, noting that the perimeter of the defamation exception is defined by both statutory requirements and constitutional principles, we required district courts, in all cases arising under the act, to consider five factors: (1) the nature of the litigation and whether the news organization is a party to the litigation, (2) the clear relevance of the source’s identity, (3) the futility of obtaining this information by any alternative means that is less destructive of first amendment rights, (4) whether there is a compelling interest in the information or source, and (5) whether the plaintiff has made a prima facie showing that the alleged defamatory statements are false.  Bauer, 557 N.W.2d at 611-13.  With regard to the second factor, we specifically required district courts to

perform an exacting analysis of each individual request for disclosure of a confidential source or information leading to his or her identity to determine if that particular source or that particular information is clearly relevant to the claim.

Id. at 611 (emphasis added).  Here, there was no balancing of these factors and certainly no “exacting analysis.”  The district court issued no findings at all—it simply compelled answers to certain interrogatories without discussion.  This was inadequate.  As in Bauer, we remand this case to the district court “[b]ecause the district court did not address all of the relevant factors * * * in imposing its disclosure order.”  Id. at 613.

The newspaper asks this court to conclude that the defamation exception to the reporter’s privilege does not apply to the facts of this case as a matter of law.  We decline to do so.  However, on remand, we note that our conclusion that the newspaper’s non-party status is not dispositive should not be read to diminish the importance of the first Bauer factor.  In Bauer, a television station aired an allegedly defamatory report concerning a public official.  Id. at 609.  The official brought suit against the media organization and some of its identified sources.  Id.  At deposition, the reporter who researched and reported the story was asked to reveal the source of some of the allegedly defamatory information.  Id.  In that context, we noted that the fact that a reporter is a party favors disclosure because the disclosure of a confidential source “may be essential to the proof of actual malice if a [public figure] plaintiff must demonstrate that the reporter’s source was unreliable.”  Id. at 611.  Although Weinberger must also show actual malice, unlike in Bauer, he need not show actual malice on the part of the media.  As the newspaper is not a party, its malice is not at issue.  Therefore, the lone benefit of disclosure is its potential as a tool of discovery.

We briefly address a number of questionable legal assertions that Weinberger has raised on appeal.  First, he contends that the district court’s failure to issue findings did not constitute error because the newspaper failed to provide evidence to suggest that these issues were in dispute.  But the newspaper properly made its objection to the discovery request, and at that point Weinberger, not the newspaper, bore the burden of proof.  See id. at 611-13 (explicitly and implicitly requiring a plaintiff seeking disclosure to demonstrate three of the five factors required for disclosure); Minn. Stat. § 595.025 (premising the disclosure of sources in defamation actions upon the existence of conditions to be demonstrated by the party seeking disclosure).

Weinberger next asserts that the identities of the sources are already known, and that mere attribution of specific information to specific sources is not protected by the reporter’s privilege.  In so doing, however, Weinberger misstates both the facts and the law.  The newspaper has indicated that many of the sources sought to be identified may still be confidential and, regardless, the cases cited by Weinberger all predate the 1998 legislative amendments to Minn. Stat. § 595.023, which specifically and clearly expanded the privilege from covering data “which would tend to identify the [source]” to covering data regardless of whether the data would tend to identify the source.  Minn. Laws 1998, ch. 357 §1.

Weinberger also argues that the newspaper waived its objection to his motion to compel by failing to “timely file any opposition papers and intentionally fail[ing] to attend the hearing where the matter was decided.”  But Weinberger cites no authority, beyond his bald assertions, to support the conclusion that the newspaper’s actions constituted waiver.  The assignment of error in a brief based on mere assertion and unsupported by argument or authority is waived unless prejudicial error is obvious on mere inspection.  State v. Modern Recycling, Inc., 558 N.W.2d 770, 772 (Minn. App. 1997).  Quite ironically, Weinberger has waived the very issue of waiver.  But even if the issue were not waived, Weinberger’s claim that the newspaper’s attorney failed to file opposition papers is wholly without merit and borders on the frivolous.  Although the newspaper’s attorney did not attend the second hearing on the matter, this hearing was, as characterized by both the district court and Weinberger himself, a renewal of the earlier motion that had been dismissed for procedural defects.  Although it was not required, the newspaper’s attorney submitted an informal letter to the court in response to Weinberger’s renewal of the motion to compel.  This letter explicitly objected to the relief requested and incorporated by reference the substantive arguments that had been offered at the earlier hearing.

Weinberger finally argues that the newspaper failed to preserve a basis for appeal by establishing a factual basis to deny his requested discovery.  Specifically he contends that the newspaper: (1) provided no evidence that the people giving the statements expected their names to be kept confidential, (2) failed to show that it would suffer any adverse impact on newsgathering by providing the information, (3) failed to provide an alternative way for Weinberger to obtain this information, (4) failed to show that this discovery was not necessary to Weinberger’s case, and (5) failed to show any other reason for not complying with the court’s order.  These assertions again lack supporting authority and are therefore waived.  See Modern Recycling, 558 N.W.2d at 772.  Furthermore, this argument again attempts to make the newspaper responsible for its failure to demonstrate factors for which Weinberger has the burden of proof.  This is so clearly stated by the legislature and the Bauer court that it is difficult to imagine that Weinberger’s attorney has not intentionally misstated the law.

            Reversed and remanded.