George G. Ventura v. The Cincinnati Enquirer Gannett Company, Inc.
396 F.3d 784 (2005)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
Ohio law grants civil immunity for disclosure of information to a prosecuting attorney and/or grand jury, and public policy precludes enforcement of agreements to conceal criminal activity. Furthermore, Ohio's Shield Law provides an absolute and unqualified privilege for newspersons to protect their sources of information, regardless of whether the source's identity has been otherwise revealed or if the source was confidential.
Facts:
- In September 1997, George G. Ventura, a former Senior Legal Counsel for Chiquita Brands International, volunteered to provide information to Enquirer reporters Michael Gallagher and Cameron McWhirter who were investigating Chiquita's business practices.
- Ventura had previously left Chiquita under difficult circumstances and, in 1996, threatened the company with litigation and demanded payment, supporting his claim with transcripts of internal Chiquita voice-mail messages he had illegally accessed after his departure.
- Ventura enlisted Gallagher in a scheme to access Chiquita's voice-mail system illegally, providing Gallagher with passwords to obtain individual voice-mail messages.
- Prior to this activity, Gallagher and Ventura entered into a mutual agreement that Ventura would be treated as a confidential source and his role in providing voice-mail codes would remain undisclosed, although Ventura later admitted he did not expect the reporters to hide that he had spoken with them.
- On May 3, 1998, the Enquirer published the first of a series of articles critical of Chiquita, using excerpts from the illegally obtained voice-mail messages.
- After publication, Chiquita notified law enforcement officials regarding the unauthorized use of voice-mail, identified Ventura as a principal suspect, reported Ventura admitted speaking with Gallagher, and demonstrated to the Enquirer that Gallagher had illegally invaded the voice-mail system.
Procedural Posture:
- A Cincinnati grand jury subpoenaed reporter Michael Gallagher, then his home computer, and ultimately received materials from him as part of a plea agreement.
- The evidence obtained from Chiquita and Gallagher led to Ventura’s indictment on September 16, 1998.
- Ventura pled no contest to, and was convicted of, multiple counts of Attempted Unauthorized Access to a Computer System, and was placed on probation for two years.
- Ventura filed a diversity action in federal district court against The Cincinnati Enquirer and Gannett Co., alleging breach of contract, tortious breach of contract, promissory estoppel, promissory fraud, negligent hiring or supervision, and negligent disclosure.
- The district court granted the Enquirer's motion for summary judgment, finding no factual evidence of a broken promise and that Ohio law granted immunity for disclosures to a prosecutor/grand jury.
- The district court also denied Ventura's motion to compel the Enquirer's reporters to answer deposition questions, upholding the Ohio Shield Law's protection for sources.
- Ventura, as plaintiff-appellant, filed a timely notice of appeal to the United States Court of Appeals for the Sixth Circuit.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does Ohio law permit a plaintiff to sue a newspaper for breach of a confidentiality agreement, tort, or vicarious liability when the newspaper or its former reporter disclosed information to a grand jury that led to the plaintiff's criminal conviction for illegal activities, and can the newspaper assert the Ohio Shield Law to protect source information during discovery even if the source's identity is known?
Opinions:
Majority - PER CURIAM.
No, Ohio law does not allow a confidential source to sue a newspaper under these circumstances, nor does it compel a reporter to reveal source identity in discovery, because absolute immunity protects disclosures to a grand jury, public policy precludes enforcing agreements to conceal crimes, vicarious liability does not extend to post-employment acts, and the Ohio Shield Law provides an absolute privilege against source disclosure. The court found that the Enquirer did not actually disclose Ventura's identity as a confidential source to the grand jury or Chiquita. The Special Prosecutor confirmed the Enquirer never produced documents disclosing Ventura's status as a source, and no employee identified him as such, as the prosecutor already had information linking Ventura to the case from Chiquita and Ventura's own admissions. Furthermore, the Enquirer was not vicariously liable for reporter Gallagher's disclosures because Gallagher had been fired in June 1998, and his actions leading to Ventura's indictment occurred three months later as part of a plea agreement. Ohio law (citing Staten v. Ohio Exterminating Co.) holds that an employer is not responsible for wrongful acts committed by an ex-employee after termination, and doctrines like respondeat superior or negligent entrustment do not apply in this context. Public policy strongly precludes the enforcement of agreements to conceal criminal activity; Ohio law (citing M.J. DiCorpo, Inc. v. Sweeney) grants absolute civil immunity for reporting criminal activity to a prosecutor or grand jury, thus encouraging crime reporting and aiding prosecution. The court affirmed that this judicial proceedings privilege protects both oral statements and documentary evidence provided to a grand jury. Moreover, Ventura's criminal indictment and conviction were proximately caused by his own independent criminal acts (citing Steele v. Isikoff), and a plaintiff cannot recover damages for harm caused by their own crimes. Finally, the Ohio Shield Law (Ohio Rev.Code Ann. § 2739.12) provides an "absolute and unqualified privilege" for newspersons to protect "the source of any information" and does not restrict the privilege to confidential providers nor extend it to the source. The district court correctly denied Ventura's motion to compel answers, as compelling journalists to confirm or deny information about a self-proclaimed source like Ventura would risk identifying other confidential sources.
Analysis:
This case significantly reinforces the broad protections afforded to both grand jury witnesses and reporters under Ohio law. It clarifies that individuals cannot seek to enforce contracts that facilitate or conceal criminal activity, aligning with strong public policy favoring the reporting and prosecution of crimes. The decision also strictly defines the limits of vicarious liability, emphasizing that an employer's responsibility for an employee's actions generally terminates with employment. Crucially, the ruling broadly interprets the Ohio Shield Law, ensuring its application to protect source information even when a source's identity may be otherwise known, thus strengthening journalistic privilege against compelled disclosure.
