Anti-Defamation League of B'nai B'rith v. Superior Court

Opinion

The underlying issue in this case relates to the right to privacy. Whether that right was violated cannot be determined, however, without the disclosure of relevant evidence. The question before us now is whether such disclosure can be compelled without violence to the First Amendment values requiring protection of a journalist’s confidential sources and information.

Petitioners Anti-Defamation League of B’nai B’rith (ADL) and Roy Bullock seek to set aside a discovery order issued by respondent superior court (Judge Alex Saldamando) on September 19, 1997, granting reconsideration and ordering compliance with certain discovery requests by real parties in interest after finding that they have now met the criteria set forth in Mitchell v. Superior Court (1984) 37 Cal.3d 268 [ 208 Cal.Rptr. 152 , 690 P.2d 625 ], to overcome the journalist’s qualified privilege. Respondent court stayed the effect of its order pending final determination of this writ petition. Initially, this court denied the petition without opinion. Thereafter, the Supreme Court directed us to issue an order to show cause and to place the matter on calendar.

As explained hereafter, we hold that petitioners, as journalists, are immune from liability for violating Civil Code section 1798.53 under the First Amendment as to all but one and possibly two other real parties in interest by virtue of their status as limited purpose public figures. As to the remaining nonpublic figure or figures, petitioners are not protected by the First Amendment from liability and a discovery order.

Petitioners are entitled to the protection of the First Amendment, however, only insofar as the information sought to be discovered was obtained and used by them for legitimate journalistic purposes. The journalist’s privilege would not protect against discovery directed to whether any nonpublic information gathered about real parties in interest was privately disclosed to a foreign government or others in violation of Civil Code section 1798.53, as claimed, because such usage does not constitute journalism. The discovery order issued by the trial court was not so limited. The order must therefore be vacated and the matter remanded for reconsideration in light of our opinion.

I. Factual and Procedural Background

Petitioners ADL and Roy Bullock, along with Richard Hirschhaut and Thomas Gerard, are defendants in an action brought by real parties in

a journalist, and that ruling is not now disputed. The court granted ADL’s motion for a protective order and denied real parties’ document request as then phrased on the ground that the latter had failed to satisfy the criteria set forth in Mitchell v. Superior Court, supra, 37 Cal.3d 268 . The order stated the court would reconsider the matter if real parties reformulated the document requests and were unsuccessful in obtaining the information from alternative sources.

Real parties continued their discovery attempts. On November 19, 1993, they served a second document request on ADL. On November 24, 1993, real parties served the San Francisco District Attorney with a subpoena for documents referring to specified persons and organizations that had been seized by the police department during its investigation of ADL. On April 6, 1994, the court granted ADL’s motion to quash the subpoena “with respect to any documents that originated with ADL or Bullock, or that were obtained, procured or developed by ADL or Bullock.” In September 1994, the court ordered Bullock to appear for deposition to explore only information not within the ambit of the journalist’s privilege set forth in Mitchell and to produce certain documents. Discovery of other categories of documents was stayed “without prejudice unless and until plaintiffs have established, pursuant to Mitchell, their entitlement to proceed with discovery of matters protected by the journalist’s privilege.”

Mitchell v. Superior Court, supra, 37 Cal.3d 268 , holds that there is a qualified journalist’s privilege in a civil action to refuse to reveal confidential sources or information obtained from those sources and that the scope of the privilege depends upon a weighing of five factors.

The first is the nature of the litigation and whether the reporter is a party. “In general, disclosure is appropriate in civil cases, especially when the reporter is a party to the litigation.” (37 Cal.3d at p. 279.) “A second consideration is the relevance of the information sought to plaintiff’s cause of action. . . . [Mjere relevance is insufficient to compel discovery; disclosure should be denied unless the information goes ‘to the heart of the plaintiff’s claim.’ ” (Id. at p. 280.) Third, discovery should be denied unless the plaintiff has exhausted all alternative sources of obtaining the needed information. Fourth, the court should consider the importance of protecting confidentiality in the case at hand. (Id. at p. 282.) “Finally, the court may require the plaintiff to make a prima facie showing that the alleged defamatory statements are false before requiring disclosure.” (Id. at p. 283.)

community of 12,000 ADL supporters in the Bay Area, characterizing those opposed to Israel as propagandists using their anti-Zionism as a guise for deeply felt anti-Semitism; (7) ADL’s files seized by the police contained information from confidential government files on real parties in interest Steven Zeltzer and Jeffrey Blankfort; (8) information on real party in interest Helen McCloskey in ADL’s files contained information that appeared to have come from the government of Israel; and (9) ADL’s head fact-finder, Irwin Suall, had met with the Israeli intelligence officials in Israel.

Respondent court heard argument on the motion to reconsider on June 27, 1997, and filed its written order on September 19, 1997. The court found that real parties had met the criteria of Mitchell: (1) the newsgatherers are parties to the action; (2) the information goes to the heart of real parties’ case in that it will identify the source of illegally obtained information admittedly obtained by ADL and the dissemination, if any, of such information in violation of Civil Code section 1798.53 and article I, section 1, of the California Constitution; (3) real parties have exhausted all reasonable alternative sources of information and do not have any practical way of obtaining such information from sources other than defendants and the San Francisco Police Department; (4) the nonpublic information to be disclosed does not relate to public figures or refer to matters of great public importance that would justify nondisclosure under Nicholson v. McClatchy Newspaper Co., supra, 111 Cal.App.3d 509 ; (5) plaintiffs have presented a prima facie case that defendants Bullock, Hirschhaut and ADL have illegally solicited, obtained and transmitted Civil Code section 1798.53 information in the cases of plaintiffs Blankfort and Zeltzer, and there is a reasonable probability that they have done so in the case of the other named plaintiffs.

The court ordered the following discovery: (A) reissuance of the subpoena duces tecum to the San Francisco Police Department and “in response to such subpoena the San Francisco Police Department shall produce for Plaintiffs’ inspection and copying subject to the Protective Order herein all non-public information obtained by ADL from public agents which is contained in the ADL records seized by the Police Department in 1992 and 1993.” The parties are authorized to select a discovery referee or master to be compensated by the parties to supervise and monitor the production of the seized records. (B) ADL is to fully respond to plaintiffs’ third document request within 20 days by producing the following documents: “(1) all memoranda or documents describing or relating to the work assignments of Roy Bullock from Irwin Suall which involve police or other public agents; (2) each document containing illegally-obtained non-public information relating to Plaintiffs and individuals or organizations in their putative class as

judicial qualifications was a newsworthy subject. (Id. at p. 515.) “While the government may desire to keep some proceedings confidential and may impose the duty upon participants to maintain confidentiality, it may not impose criminal or civil liability upon the press for obtaining and publishing newsworthy information through routine reporting techniques.” (Id. at pp. 519-520.) The court observed that although reporters are not privileged to commit crimes and independent torts in gathering the news, there was no allegation that any such impermissible techniques had been employed. (Ibid).

In Alim v. Superior Court, supra, 185 Cal.App.3d 144 , Walter Atlee, former chief deputy director of the Department of Veterans Affairs, sued a newspaper reporter, editor and publisher for invasion of privacy under Civil Code section 1798.53 and libel based on an article containing allegedly false and confidential information from federal Veterans Administration records indicating that he had wrongfully received overpayments of a veteran’s disability stipend while employed. The trial court granted the newspaper defendants’ motion for summary judgment on all causes of action but that under Civil Code section 1798.53 on the ground that Atlee, who was a public figure, could not prove malice under the New York Times doctrine. (New York Times Co. v. Sullivan (1964) 376 U.S. 254 [ 84 S.Ct. 710 , 11 L.Ed.2d 686 , 95 A.L.R.2d 1412 ].) The trial court denied summary judgment on the Civil Code section 1798.53 claim on the ground that the constitutional doctrine did not apply to it. The Court of Appeal disagreed, rejecting the claim that an action under Civil Code section 1798.53 is not subject to free press defenses analogous to those available in common law actions for invasion of privacy. The court held that a cause of action under Civil Code section 1798.53 is subject to the New York Times actual malice standard and that there is a privilege for truthful publication of information bearing on the fitness for office of a public official. (185 Cal.App.3d at pp. 152-153.)

In Landmark Communications, Inc. v. Virginia, supra, 435 U.S. 829 , the Supreme Court held that the First Amendment did not permit the criminal punishment of a newspaper for publishing truthful information regarding confidential proceedings of the Virginia Judicial Inquiry and Review Commission. “The operation of the Virginia Commission, no less than the operation of the judicial system itself, is a matter of public interest, necessarily engaging the attention of the news media. The article published by Landmark provided accurate factual information about a legislatively authorized inquiry pending before the Judicial Inquiry and Review Commission,

and in so doing clearly served those interests in public scrutiny and discussion of governmental affairs which the First Amendment was adopted to protect.” (Id. at p. 839 [98 S.Ct. at p. 1542].) The court specifically noted, however, that the case did not involve “the possible applicability of the statute to one who secures the information by illegal means and thereafter divulges it. We do not have before us any constitutional challenge to a State’s power to keep the Commission’s proceedings confidential or to punish participants for breach of this mandate.” (Id. at p. 837 [98 S.Ct. at pp. 1540-1541].) The only issue before the court was whether a newspaper could be punished for publishing truthful information about confidential proceedings. (Ibid.)

The Florida Star v. B. J. F., supra, 491 U.S. 524 , held that a newspaper could not be held liable for violating a state statute prohibiting the publishing of a rape victim’s name which it had obtained from a publicly released police report. The court emphasized that its holding was limited to the situation in which the newspaper published truthful information that had been lawfully obtained. (Id. at p. 541 [109 S.Ct. at p. 2613].) The court expressly noted it was not addressing the question of whether a newspaper may ever be punished for publishing information that had been unlawfully acquired. (Id. at p. 535, fn. 8 [109 S.Ct. at p. 2610].)

Shulman v. Group W Productions, Inc., supra, 18 Cal.4th 200 , addressed the common law invasion of privacy torts of public disclosure of private facts and intrusion in an action brought by two automobile accident victims against a television producer that videotaped and broadcast a documentary rescue program showing the plaintiffs’ rescue and transportation to the hospital in a medical helicopter. The court held that summary judgment was proper as to the cause of action for publication of private facts but not as to the cause of action for intrusion. Lack of newsworthiness was held to be an essential element of a cause of action based on a claim that publication has given unwanted publicity to allegedly private aspects of a person’s life. The subject matter of the broadcast as a whole was of legitimate public concern. “Automobile accidents are by their nature of interest to that great portion of the public that travels frequently by automobile. The rescue and medical treatment of accident victims is also of legitimate concern to much of the public, involving as it does a critical service that any member of the public may someday need.” (Id. at p. 228.) Likewise, the victim’s appearance and words as she was extricated from the overturned car, placed in the helicopter, and transported to the hospital were of legitimate public concern. The intrusion cause of action, by contrast, was held not to carry any special immunity or privilege for the press. “In contrast to the broad privilege

the press enjoys for publishing truthful, newsworthy information in its possession, the press has no recognized constitutional privilege to violate generally applicable laws in pursuit of material. Nor, even absent an independent crime or tort, can a highly offensive intrusion into a private place, conversation, or source of information generally be justified by the plea that the intruder hoped thereby to get good material for a news story.” (Id. at p. 242, italics in original.) Thus, summary judgment was improper as to the cause of action for intrusion based on the cameraman’s presence in the medical helicopter and the recording and amplifying of the victim’s conversations with medical personnel. (Id. at pp. 237-238.)

The trial court found that the cases just discussed were inapplicable because they involved newsworthy information, plaintiffs who were public figures, or both. According to the trial court, the nonpublic information gathered about real parties was not newsworthy, and real parties were not public figures. Petitioners challenge these determinations, arguing that real parties are political activists visibly engaged in public opposition to policies of the Israeli government and have therefore made themselves limited purpose public figures.

Petitioners rely primarily on Reader’s Digest Assn. v. Superior Court (1984) 37 Cal.3d 244 [ 208 Cal.Rptr. 137 , 690 P.2d 610 ]; Copp v. Paxton (1996) 45 Cal.App.4th 829 [ 52 Cal.Rptr.2d 831 ]; and Lind v. Grimmer (9th Cir. 1994) 30 F.3d 1115 . After reviewing these authorities and the information provided in the exhibits relating to the political activities that real parties in interest have undertaken, we agree that at least 14 and possibly 16 of the 17 real parties in interest must be considered limited purpose public figures in relation to this litigation.

The leading California case on public figures is Reader’s Digest Assn. v. Superior Court, supra, 37 Cal.3d at pages 254-255, where Synanon, a rehabilitation program for drug addicts, and Charles Dederich, its founder, were held to be public figures by virtue of their myriad attempts to thrust their case and Synanon in general into the public eye. In reaching that conclusion, the court traced the evolution of the public figure doctrine, noting that it was first recognized in Curtis Publishing Co. v. Butts (1967) 388 U.S. 130 [ 87 S.Ct. 1975 , 18 L.Ed.2d 1094 ], and subsequently refined in Gertz v. Robert Welch, Inc. (1974) 418 U.S. 323 [ 94 S.Ct. 2997 , 41 L.Ed.2d 789 ], where “. . . the court provided a two fold rationale for extending the New York Times rule to ‘public figures.’ First, it recognized that public figures are generally less vulnerable to injury from defamation because of their ability to resort to effective ‘self help.’ Such persons ordinarily enjoy

disaster mitigation. In connection with his efforts he took issue with the conventional duck-and-cover advice given to schoolchildren and distributed a flyer describing his views. After being subjected to public criticism and attacks on his credentials, Copp brought an action for defamation against a county emergency services officer and others. Our colleagues in Division One of this court concluded that Copp was a limited purpose public figure because he had attempted to thrust himself into the forefront of debate on emergency preparedness by organizing a worldwide conference, passing out flyers and speaking at public meetings. (Id. at p. 846.) In reaching this conclusion, the court observed: “It is not necessary to show that a plaintiff actually achieves prominence in the public debate; it is sufficient that ‘[a plaintiff] attempts to thrust himself into the public eye’ (Rudnick v. McMillan (1994) 25 Cal.App.4th 1183 , 1190 [ 31 Cal.Rptr.2d 193 ]) or to influence a public decision.” (Id. at pp. 845-846.)

In Lind v. Grimmer, supra, 30 F.3d 1115 , a newsletter publisher brought an action challenging the constitutionality of a Hawaii statute prohibiting disclosure of information concerning investigations undertaken by Hawaii’s Campaign Spending Commission. The Ninth Circuit held the statute unconstitutional as applied to Lind who revealed in a newsletter that he had filed a complaint against the University of Hawaii professional assembly alleging it had failed to disclose certain campaign contributions. The court rejected Hawaii’s claim that it was justified in restricting political speech about complaints before the Campaign Spending Commission in order to promote other political speech by candidates and their supporters. The court observed that candidates “surely are public figures, and therefore must be prepared to endure a heightened level of criticism—including charges of campaign spending improprieties—precisely in order to promote First Amendment values. . . . Candidates’ supporters, by injecting themselves into public debate and attempting financially to influence its outcome, also must be prepared to suffer what to them may be unpleasant discussion of their contribution practices.” (Lind v. Grimmer, supra, 30 F.3d at p. 1120.)

Petitioners contend that real parties have sufficiently injected themselves into the maelstrom of public debate over Israeli-Palestinian relations and other topical issues to qualify as limited purpose public figures. As

examples, they cite declarations and interrogatory responses submitted by real parties Jeffrey Blankfort and Steven Zeltzer (whom the trial court found to have made out prima facie cases of violation of their rights under the privacy statute) describing their interest and activities in support of Palestine and in speaking out against Israeli policies and against apartheid in South Africa. Blankfort stated: In 1981 he was a charter member of the November 29th Coalition for Palestine; in June 1982 he solicited names and funds for an ad in the San Francisco Chronicle and Examiner protesting the Israeli invasion of Lebanon; in 1983, he spent four months in Israel, Lebanon, Jordan and the West Bank as a free-lance photojournalist; in January 1987, he organized an anti-apartheid demonstration in San Francisco; in May 1987, he and Steve Zeltzer organized a forum on the Middle East at a church; in November 1989, he spoke at a conference in Boston on the connection between Israel and South Africa; he spoke on Israeli censorship in June 1993 at a meeting of the American Library Association; he is the editor of the Middle East Labor Bulletin. Zeltzer recited similar activities: He helped Blankfort form the Labor Committee on the Middle East in 1987 whose purpose was to provide information to the United States workers about the conditions of working people of the Middle East and to counter anti-Arab racism in the United States; in the early 1980’s he helped form the Committee to Free Moses Mayekiso, a South African who had been jailed because of his union activities in defense of Black South African workers.

We agree that the activities undertaken by Blankfort and Zeltzer are sufficient to make them limited purpose public figures under the authorities previously discussed. (Accord, Nadel v. Regents of University of California (1994) 28 Cal.App.4th 1251 , 1269-1270 [ 34 Cal.Rptr.2d 188 ] [public figure status where plaintiffs played leadership role in protesting university’s plan to build volleyball courts in People’s Park by speaking at city council meetings and demonstrations, communicating with news media, and staffing information table at park]; Lewis v. Ueberroth (1983) 147 Cal.App.3d 442 [ 195 Cal.Rptr. 150 ] [public figure status where plaintiffs were officers in organization opposing construction of Olympics sports facilities in Sepulveda Basin]; see also Annot., Who is “Public Figure” for Purposes of Defamation Action (1994) 19 A.L.R.5th 1 .)

We have reviewed the declarations and interrogatory responses prepared by the 15 other real parties in interest and submitted as part of the exhibits to determine whether the level of their activities was such that they may also be found to be limited purpose public figures. We conclude that all but three of the fifteen have described sufficient involvement in Middle East and/or South African causes to be considered public figures for purposes of this

One of the unusual aspects of this case is that, unlike most newsgathering organizations, petitioners’ activities are not limited to journalism. ADL is a tax-exempt nonprofit membership organization which describes itself in its pleadings as “a civil rights and human relations organization [which] engages in a broad range of activities designed to combat anti-Semitism, prejudice and bigotry of all kinds. Through its Intergroup Relations Division, ADL works to promote greater understanding of Jews, Judaism and Jewish concerns, as well as intergroup and interreligious understanding. Through its International Affairs Division, ADL seeks to focus attention on the security of Jews around the world and the strategic importance of the State of Israel.”

Many of the activities through which ADL seeks to achieve the foregoing purposes are unrelated to conventional journalism, which we conceive to be the gathering and editing of material of current interest for presentation through print or broadcast media, or on the Internet, and available to interested members of the public. For example, ADL privately circulates information, some of it “confidential,” only to certain members and persons affiliated with other groups that share its goals.

Unfortunately, the cases arising under Civil Code section 1798.53 do not shed a great deal of light on the breadth of constitutionally protected journalistic activities. Nicholson provides some guidance, at least with respect to the gathering (as opposed to the dissemination) of information. That case involved a cause of action for breach of privacy by intrusion based upon newsgathering activities similar to that at issue here, namely, “ 1 “requesting and persuading” ’ ” employees of the State Bar to engage in the “ ‘ “unauthorized and unlawful disclosure” ’ ” of confidential information. (177 Cal.App.3d at p. 520, see fn. 6, ante.) The court characterized the allegation as simply stating that the media defendants sought out the newsworthy information which they subsequently published in a newspaper of general circulation. The court held that this type of activity was within the news-gathering activities protected by the First Amendment. (Nicholson v. McClatchy Newspapers, supra, 177 Cal.App.3d at p. 520.) In reaching this conclusion the court relied upon Smith v. Daily Mail Publishing Co. (1979) 443 U.S. 97 [ 99 S.Ct. 2667 , 61 L.Ed.2d 399 ], which held that the state could not punish the publication of information obtained through routine newspaper reporting techniques (i.e., asking witnesses, police, and an assistant prosecutor for the youthful offender’s name).

The Nicholson court distinguished routine newsgathering techniques from those employed in Dietemann v. Time, Inc. (9th Cir. 1971) 449 F.2d 245 , where newsmen gained entrance to the plaintiff’s home by subterfuge and surreptitiously photographed him and recorded his conversations by

means of a hidden camera and electronic devices. Such activities were not protected by the First Amendment, according to the Ninth Circuit Court of Appeals. Likewise, a photographer’s constant surveillance, obtrusive and intruding presence in photographing Jacqueline Kennedy Onassis was held to be outside the news gathering privilege of the First Amendment. (Galella v. Onassis (2d Cir. 1973) 487 F.2d 986 .) Such conduct was contrasted with the routine newsgathering techniques which include “asking persons questions, including those with confidential or restricted information. While the government may desire to keep some proceedings confidential and may impose the duty upon participants to maintain confidentiality, it may not impose criminal or civil liability upon the press for obtaining and publishing newsworthy information through routine reporting techniques.” (Nicholson v. McClatchy Newspapers, supra, 177 Cal.App.3d at pp. 519-520.)

In light of the foregoing, it is apparent that, except with respect to Jock Taft and possibly also Paula Kotakis and Margaret McCormack, the manner in which petitioners allegedly obtained information about real parties constitutes legitimate newsgathering. At least 14 real parties are limited purpose public figures engaged in a newsworthy activity. The fact that ADL apparently never published information about these 14 individuals in the magazines and newspapers they publish and make available to the public is of no great moment, as such information may well have been sought in connection with stories that never materialized.

The problem in this case, however, relates not so much to the manner in which petitioners may have obtained the information in question, but the manner in which they may have used and disseminated that information. The case law does not address this aspect of the journalistic enterprise since the situations it deals with are invariably those in which the defendant published the information in question in a newspaper or magazine available to the public. Here, the complaint alleges that petitioners disclosed protected nonpublic information to foreign governments and other persons and organizations with no compelling need to know such information, in some cases for a fee. As indicated, petitioner Bullock testified at his deposition testimony that he had sold or given undisclosed information to representatives of the government of South Africa. Suall, ADL’s chief “fact-finder,” stated at his deposition that he had met in Israel with agents of the Mossad, the Israeli security agency, presumably for the purpose of sharing information. If Bullock’s disclosures to South African officials involved nonpublic information about real parties, or if Suall’s meetings with Israeli officials also involved disclosures of such information, the protections of the First Amendment would not be available, because private disclosures of. such

information to foreign governments could not conceivably constitute a legitimate and constitutionally protected journalistic activity. Nor would the private or “confidential” disclosure of such information to a network consisting of members of ADL and/or affiliated organizations not involved in journalism constitute a protected activity.

To be sure, it has not been shown that any information that may have been gathered by petitioners about real parties in interest was in fact privately disclosed to the governments of Israel or South Africa, or to any other entities or individuals. Nonetheless, real parties have made a showing that ADL was found by the San Francisco Police Department to be in possession of nonpublic information pertaining to certain real parties in interest. The deposition testimony of Bullock and Suall creates a possibility this information was privately disclosed sufficient to justify discovery calculated to lay the matter to rest. Accordingly, we conclude real parties are entitled to discovery specifically tailored to learn whether any information gathered about them by ADL and its agents in violation of Civil Code section 1798.53 was privately disclosed to the government of Israel or South Africa, or to any other agency or individual not a member of or employed by ADL, or to any individual who was then a member or employee of ADL for a nonjournalistic purpose.

B.

Our conclusion that Jock Taft is not a limited purpose public figure (and that Paula Kotakis and Margaret McCormack also may not be such public figures) requires us to address petitioners’ challenge to the trial court’s finding that the Mitchell criteria had been satisfied. Petitioners assert that only one of the five factors set forth in Mitchell has been met—namely, that they are parties to the litigation. According to petitioners, the remaining four factors do not justify disclosure in this case: (1) the importance of the information sought to plaintiffs’ case; (2) exhaustion of all alternative sources of obtaining the needed information; (3) the importance of protecting confidentiality in the case at hand; and (4) making a prima facie showing. (37 Cal.3d at pp. 279-282.)

Petitioners dispute that the information sought goes to the heart of real parties’ case. Real parties, on the other hand, claim the information at issue is vital to their case. They emphasize that they cannot prevail without identifying exactly what Bullock illegally learned about them from confidential government sources, from which he illegally obtained the information, and to which he and ADL illegally transmitted it. The complaint alleges

when the information relates to matters of great public importance, and when the risk of harm to the source is a substantial one, the court may refuse to require disclosure even though the plaintiff has no other way of obtaining essential information.” (37 Cal.3d at p. 283.) The information sought as to Jock Taft does not relate to a public figure or refer to matters of great public importance that would justify nondisclosure under Nicholson v. Superior Court, supra, 177 Cal.App.3d 509 . This case is unlike Mitchell where the information at issue related to criminal or unethical conduct on the part of a powerful private organization. (Mitchell v. Superior Court, supra, 37 Cal.3d at p. 283.) Petitioners do not suggest that the information sought in this case reveals improper conduct on the part of powerful interests, but relates only to political activity on the part of private individuals which, so far as appears, is constitutionally protected. Moreover, petitioners have not persuasively shown that revelation of the information at issue would expose them or their sources to harmful retaliation.

Finally, petitioners object to the court’s finding that real parties had satisfied the Mitchell requirement that a prima facie showing be made. The showing that needed to be made in Mitchell related to the falsity of the allegedly defamatory information. The Mitchell court explained that the routine granting of motions seeking compulsory disclosure would emasculate the important principle established in New York Times Co. v. Sullivan, supra, 376 U.S. 254 , and other cases, unless the substance of the libel charge was first established. A showing that the alleged defamatory statements are false would tend to tip the balance in favor of discovery since there is very little public interest in protecting the source of false accusations of wrongdoing. (37 Cal.3d at p. 283.) Accordingly, Mitchell states that “. . . the court may require the plaintiff to make a prima facie showing that the alleged defamatory statements are false before requiring disclosure.” (Ibid., italics added, fn. omitted.)

The Mitchell court’s use of the word “may” indicates it viewed the prima facie showing as a discretionary requirement. Requiring a prima facie showing that the alleged defamatory statements are false before ordering disclosure of journalists’ sources makes sense in the context of a defamation action. The information needed to show falsity would ordinarily be readily available to the plaintiffs. Thus, requiring such a showing before ordering discovery would not be an onerous burden on such parties.

As, unlike Mitchell, this is not a defamation case, the prima facie showing that would be made here relates not to the falsity of petitioners’ statements but the likelihood that, in violation of Civil Code section 1798.53, they

vacate its September 19, 1997, order (as amended at the November 6, 1997, status conference). The parties shall bear their own costs on appeal.

Haerle, J., and Lambden, J., concurred.