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Schreiber v. Multimedia of Ohio10/21/1987
ion of whether a qualified privilege arises in a given situation entails an ad hoc "balancing the particular interests of the press in protecting the confidentiality of sources or maintaining the free flow of information in general considering the ap-
plicability of these interests to the facts at hand, versus the interest of a party in obtaining information necessary to pursue his claim." The Court of Appeals for Summit County similarly held in Fawley, supra, that a newspaper reporter enjoys a qualified privilege protecting disclosure of non-confidential sources of information. The persuasiveness of the decision in Fawley is tempered, however, by the cogent concurring opinion of the court's presiding judge in which he joined in the court's ultimate disposition, but declined to engage in judicial legislation by extending to non-confidential sources and information the qualified privilege which has emerged under R.C. 2739.12 to protect newspersons against compelled disclosure of confidential sources. Id. at 10, 11 Med. L. Rptr. at 2339 (Mahoney, P.J., concurring). Thus, the issue of whether the federal or state constitutional guarantees of free speech or freedom of the press confer upon the instant defendants a qualified privilege against compelled disclosure of their editorial processes under the circumstances extant remains open to interpretation.
We do not, however, reach that issue. As we noted supra, the court below, following its in camera inspection, ordered defendants to produce the material sought to be discovered upon its determination that the material was relevant and not privileged. Defendants on appeal contend that the material is shielded from compelled disclosure by a qualified privilege and that plaintiffs failed to demonstrate the heightened degree of relevance and necessity required to overcome the privilege. The determination of whether a qualified privilege applies in a given situation entails an ad hoc balancing of the interests at stake. Lauderback, supra, at 2408. Similarly, the determination of the circumstances under which the privilege is required to yield must be made on an ad hoc basis. Id. at 2408. These determinations lie within the sound discretion of the trial court and will not be disturbed unless it can be demonstrated that the court abused its discretion. Fawley, supra, at 5-6, 11 Med. L. Rptr. at 2338. Defendants have failed to make a transcript of the proceedings at the in camera hearing a part of the record before us. In the absence of some demonstration that the trial court erred in its determination that the subject material was not privileged, we are constrained to find no abuse of discretion in the court's order compelling defendants' production of the requested material. We, therefore, overrule defendants' sole assignment of error and affirm the judgment of the court below.
Judgment affirmed.
SHANNON, P.J., DOAN and UTZ, JJ.,concur.
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