The Big Chill: Third-Party Documents and the Reporter’s Privilege

In the wake of Philip Morris’ multi-billion dollar libel suit against ABC, a Virginia court has sanctioned a new method of discovery that promises to have an unsettling impact on the reporter’s privilege to protect confidential sources. In Philip Morris Cos. v. American Broadcasting Cos., the tobacco giant moved to compel disclosure of the identity of a former R.J. Reynolds manager who suggested on ABC’s Day One news program that tobacco companies add nicotine to the cigarettes they manufacture. At the same time, Philip Morris issued subpoenas for the expense records of two ABC employees who wrote and produced the story, in a novel effort to discover the source’s identity. In a preliminary order issued before the parties settled, the judge hearing the case denied ABC’s motion to quash the subpoenas. This Note argues for an expansion of the reporter’s privilege to documents held by third parties. Specifically, this Note first summarizes the reporter’s privilege under existing law and examines First Amendment justifications for the reporter’s privilege. This Note then surveys the present law concerning discovery of third-party records and scrutinizes the policy arguments both in favor of and against extending the reporter’s privilege to documents held by third parties. Finally, this Note suggests an alternative analysis to that adopted by the Virginia court when litigants seek discovery of third-party records in libel actions.