PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

HURSHEL L. ASHCRAFT, et al.,
Plaintiffs,

v.

CONOCO, INCORPORATED,
Defendant-Appellee,

CORY REISS,
Appellant,

and

KAYO OIL COMPANY; TRIANGLE
FACILITIES, INCORPORATED,
Defendants.
                                                             No. 98-2567
ASSOCIATED PRESS; THE NEWS &
OBSERVER; THE CHARLOTTE
OBSERVER; THE BALTIMORE SUN
COMPANY; RICHMOND TIMES-
DISPATCH; THE MCGRAW-HILL
COMPANIES, INCORPORATED; THE
WASHINGTON POST; GANNETT
COMPANY, INCORPORATED; DOW JONES
AND COMPANY, INCORPORATED; THE
NORTH CAROLINA PRESS ASSOCIATION;
THE REPORTERS COMMITTEE FOR
FREEDOM OF THE PRESS,
Amici Curiae.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Wilmington.
W. Earl Britt, Senior District Judge.
(CA-95-187-BR3-7)

Argued: March 1, 1999

Decided: July 6, 2000
Before WIDENER and LUTTIG, Circuit Judges, and
Catherine C. BLAKE, United States District Judge
for the District of Maryland, sitting by designation.

_________________________________________________________________

Reversed by published opinion. Judge Blake wrote the opinion, in
which Judge Widener and Judge Luttig joined.

_________________________________________________________________

COUNSEL

ARGUED: Floyd Abrams, CAHILL, GORDON & REINDEL, New
York, New York, for Appellant. Jonathan Drew Sasser, MOORE &
VAN ALLEN, P.L.L.C., Raleigh, North Carolina, for Appellee. ON
BRIEF: Landis C. Best, CAHILL, GORDON & REINDEL, New
York, New York; Stephen T. Smith, MCMILLAN, SMITH &
PLYLER, Raleigh, North Carolina; Mark J. Prak, Harold H. Chen,
BROOKS, PIERCE, MCLENDON, HUMPHREY & LEONARD,
L.L.P., Raleigh, North Carolina; George Freeman, Assistant General
Counsel, THE NEW YORK TIMES CO., New York, New York, for
Appellant. David E. Fox, Andrew B. Cohen, MOORE &
VAN ALLEN, P.L.L.C., Raleigh, North Carolina; George A. Phair,
Senior Counsel, CONOCO, INC., Houston, Texas, for Appellee. Rod-
ney A. Smolla, The T.C. Williams School of Law, UNIVERSITY OF
RICHMOND, Richmond, Virginia, for Amici Curiae.

_________________________________________________________________

OPINION

CATHERINE C. BLAKE, District Judge:

Cory Reiss, a reporter for the Wilmington, North Carolina, Morn-
ing Star newspaper, appeals from the district court's October 23, 1998
order finding him in civil contempt of court and ordering him to an
indefinite term of imprisonment for refusing to divulge the identities
of certain confidential news sources. We reverse. 1
_________________________________________________________________
1 Mr. Reiss also appeals the district court's October 13, 1998 order
denying his motion for recusal. Our disposition of the civil contempt

                    2
I.

In December 1995, an environmental torts action was filed in the
United States District Court for the Eastern District of North Carolina
against Conoco, Inc., and two of its subsidiaries (collectively "Con-
oco"). Conoco was alleged to be responsible for harmful gasoline
contamination present in two underground wells located in Wilming-
ton, North Carolina. The lawsuit was brought on behalf of 178 trailer
park residents whose drinking water was drawn from the contami-
nated wells. The initial liability phase of the lawsuit went to trial
before a jury in August 1997. On August 25, 1997, the jury returned
a verdict in favor of the plaintiffs, finding that Conoco was liable for
both compensatory and punitive damages, as well as for $9.5 million
in future medical monitoring costs.

Following the verdict, the jury heard additional evidence relating
to the amount of the punitive damages award. Before the jury could
report the results of its deliberations, however, the parties reached a
comprehensive $36 million settlement, the terms of which they
intended to remain confidential. Accordingly, the parties jointly
moved the district court to file and maintain the settlement agreement
and related documents under seal. Without providing public notice or
an opportunity for interested parties to object, the district court signed
an order granting the motion "for good cause shown" on September
18, 1997. (J.A. 96-97.)2 The court stated no other findings or reasons
supporting its decision to seal the documents. The case was then dis-
missed, although the district court "retain[ed] jurisdiction for the pur-
pose of managing the Confidential Settlement Agreement." (J.A. 97.)
_________________________________________________________________

issue makes it unnecessary for us to resolve this question. In any event,
after carefully reviewing the parties' briefs and the record on appeal, we
find that the district judge did not abuse his discretion in refusing to
recuse himself from the case. See Sales v. Grant , 158 F.3d 768, 781 (4th
Cir. 1998) ("A trial judge's denial of a recusal motion is reviewed for
abuse of discretion").

2 The order was entered on the court's docket September 22, 1997.
(J.A. 48.)

                    3
Mr. Reiss covered the trial for the Morning Star . During July and
August 1997, he wrote at least eight stories relating to the case. (See
J.A. 239-69.) Using ordinary reporting methods, Mr. Reiss eventually
learned the amount of the $36 million settlement through two anony-
mous sources, both of whom were over 18 years of age. On October
15, 1997, the Morning Star published a story by Mr. Reiss in which
the $36 million settlement figure was disclosed. 3 Based on the disclo-
sure of this confidential information, Conoco moved the district court
to hold Mr. Reiss, fellow reporter Kirsten B. Mitchell, and the Morn-
ing Star in civil contempt. The United States Attorney for the Eastern
District of North Carolina also moved the court to hold the three par-
ties in criminal contempt.4

The hearing on these contempt motions took place on December
17, 1997. During the hearing, Mr. Reiss refused to disclose the names
of the two individuals who had informed him about the $36 million
settlement figure. (See J.A. 179-85.) At the close of the hearing, the
court found Mr. Reiss not guilty as to the criminal contempt charge.
(J.A. 204.) In a subsequent order issued by the district court on Janu-
ary 21, 1998, Mr. Reiss also was found not guilty of civil contempt.
(J.A. 315-16.) In the same order, the district court initially denied
Conoco's motion to compel Mr. Reiss to disclose the identities of the
two sources who had supplied him with the confidential settlement
information. (J.A. 317-18.) Applying the test established by this court
in LaRouche v. National Broadcasting Company, 780 F.2d 1134,
_________________________________________________________________
3 The story reported that, in addition to the two anonymous sources,
"[a] document confirming the settlement amount was among public doc-
uments given to a Morning Star reporter . . . by a clerk at the federal
courthouse in Raleigh." (J.A. 235.) The document referred to was the set-
tlement agreement itself, and the reporter was Kirsten B. Mitchell. Ms.
Mitchell was separately convicted by the district court of both civil and
criminal contempt as a result of her participation in these matters. The
Morning Star newspaper was also held in civil contempt. Ms. Mitchell's
and the newspaper's consolidated appeals, Ashcraft v. Conoco, Inc., No.
98-1212(L), are being resolved separately.
4 The United States Attorney subsequently withdrew from the case
when the Attorney General of the United States refused to authorize the
prosecution, and the district court appointed an independent counsel to
prosecute the criminal contempt charges. (J.A. 132-35.)

                    4
1139 (4th Cir. 1986),5 the district court found that the sources' identi-
ties were not relevant to the civil contempt proceedings then pending
and also that Conoco had failed to exhaust all reasonable alternative
means for obtaining the sources' names. (J.A. 318.) 6

On April 13, 1998, Conoco renewed its motion to compel Mr.
Reiss to reveal his sources. In arguing that there was a compelling
need for the information, Conoco relied entirely on the district court's
own alleged interest in learning the sources' identities. (J.A. 346-47.)
By order dated September 3, 1998, the district court granted the
motion. Again applying the three-part LaRouche test, the district court
found, first, that the sources' identities were"relevant to the case in
general" and "will help this court determine who violated the [Sep-
tember 22, 1997 confidentiality] order and . . . bring the appropriate
sanctions to bear upon that person or persons." (J.A. 369.)7

Skipping to the third prong of the LaRouche test, the district court
next found that there was a "compelling" need to know the sources'
identities. The district court did not find that Conoco had such a need,
however. Rather, the court found that the court itself had "several
compelling interests in the information." (J.A. 370.)8 In particular, the
court explained that it had "an obligation" to discover the identities
_________________________________________________________________
5 Although in a diversity action the availability of an evidentiary privi-
lege is governed by the law of the forum state, see Fed. R. Evid. 501,
here the district court determined that North Carolina courts would apply
this court's LaRouche test to the circumstances of this case. (J.A. 368.)
Neither party has challenged this determination on appeal
6 The district court did not in this decision reach the third prong of the
LaRouche test, i.e., "whether there is a compelling interest in the infor-
mation." See 780 F.2d at 1139.
7 In making this finding, the district court rejected Mr. Reiss' argument
that the information sought under LaRouche must be relevant to a claim
made by Conoco in the underlying toxic tort case. Instead, the district
court took the position that LaRouche "requires that the information be
relevant, period, with no modification concerning to which interest it
should relate." (J.A. 369.)
8 The district court interpreted LaRouche to require only that there be
a compelling interest in the information, not that the compelling interest
belong to the moving party. (J.A. 370.)

                     5
of the persons who had divulged the $36 million settlement figure and
"to hold them accountable for the breach of the seal placed on the Set-
tlement Agreement." (J.A. 370.) The court further explained that it
had "withheld a substantial portion of the settlement funds in the
event that the sources are plaintiffs" and that the prompt and proper
distribution of these funds was "clearly a compelling interest." (J.A.
370-71.)9

Finally, the district court found that Conoco had now exhausted all
reasonable alternative means for obtaining Mr. Reiss' sources' names.10
Accordingly, since it found that all three prongs of the LaRouche test
were satisfied, on September 3, 1998, the district court ordered Mr.
Reiss to supply the full names and addresses of his two anonymous
sources. (J.A. 374.) When Mr. Reiss refused to do so, he was found
in civil contempt by order dated October 23, 1998, and remanded to
the custody of the United States Marshal "until such time as he purges
himself of contempt by complying with the terms of the Orders of this
Court dated 3 September 1998 and 13 October 1998." (J.A. 411.)11 On
October 28, 1998, this court stayed the district court's contempt order
pending the outcome of this appeal.
_________________________________________________________________
9 No specific provision of the settlement agreement authorizing the dis-
trict court to withhold funds in this manner has been identified or dis-
closed by either the district court or Conoco.

10 In the interval between the two rulings, Conoco had sent interrogato-
ries to all adult plaintiffs, and had examined under oath before a magis-
trate judge five plaintiffs who had indicated that they had spoken to Mr.
Reiss in the past. All of the plaintiffs, however, denied supplying Mr.
Reiss with the settlement information or knowing who the sources were.
(J.A. 366.) Furthermore, in reaching its decision on this prong of the
LaRouche test, the district court indicated that, at its own initiative, it had
questioned under oath all federal court personnel who might have knowl-
edge of the terms of the settlement agreement and had determined that
"none of the [district court] employees were the source of the informa-
tion." (J.A. 372.)

11 The district court's October 13, 1998 order denied, inter alia, Mr.
Reiss' motion for recusal, and reiterated the court's demand that Mr.
Reiss reveal his sources' identities. (J.A. 391.)

                     6
II.

News reporters are "entitled to some constitutional protection of
the confidentiality of [their] sources." Pell v. Procunier, 417 U.S.
817, 834 (1974) (citing Branzburg v. Hayes, 408 U.S. 665 (1972));
see also Branzburg, 408 U.S. at 707 ("news gathering is not without
its First Amendment protections"). Such protection is necessary to
ensure a free and vital press, without which an open and democratic
society would be impossible to maintain. See Time, Inc. v. Hill, 385
U.S. 374, 389 (1967) ("A broadly defined freedom of the press
assures the maintenance of our political system and an open society").
If reporters were routinely required to divulge the identities of their
sources, the free flow of newsworthy information would be restrained
and the public's understanding of important issues and events would
be hampered in ways inconsistent with a healthy republic. See Minne-
apolis Star and Tribune Co. v. Minnesota Comm'r of Revenue, 460
U.S. 575, 585 (1983) ("An untrammeled press is a vital source of pub-
lic information, and an informed public is the essence of working
democracy") (internal alterations and citation omitted).

Nevertheless, the reporter's privilege recognized by the Supreme
Court in Pell and Branzburg is not absolute and will be overcome
whenever society's need for the confidential information in question
outweighs the intrusion on the reporter's First Amendment interests.
See, e.g., Branzburg, 408 U.S. at 690, 708 (holding that reporter, like
ordinary citizen, must respond to grand jury subpoenas and answer
questions related to criminal conduct he personally observed and
wrote about, regardless of any promises of confidentiality he gave to
subjects of stories). On a motion to compel disclosure of confidential
news sources, this balancing of the reporter's interests and society's
interests is committed to the sound discretion of the district court. See
Church of Scientology Int'l v. Daniels, 992 F.2d 1329, 1335 (4th Cir.
1993) (citing LaRouche, 780 F.2d at 1139); see also Branzburg, 408
U.S. at 710 (reporter's claim of privilege should be judged on case-
by-case basis) (Powell, J., concurring).

In order to guide the district court in balancing these interests, in
LaRouche v. National Broadcasting Company, 780 F.2d 1134 (4th
Cir. 1986), we adopted the following three-part test: "(1) whether the
information is relevant, (2) whether the information can be obtained

                     7
by alternative means, and (3) whether there is a compelling interest
in the information." Id. at 1139 (citing Miller v. Transamerican Press,
Inc., 621 F.2d 721, 726 (5th Cir. 1980)). LaRouche involved a defa-
mation action filed by presidential candidate Lyndon LaRouche
against NBC and others for statements made during two NBC news
programs which LaRouche claimed were defamatory. See 780 F.2d at
1136-37. During discovery, LaRouche moved the district court to
compel NBC to reveal the confidential sources for its stories. His
motion was denied on the grounds that he had not deposed certain
known key persons involved in the stories and so had failed to
exhaust other possible sources of the information. On appeal, this
court affirmed the district court's ruling on the same reasoning. Id. at
1139. In this case, however, we must focus on the third prong,
whether there is a "compelling interest" that justifies the disclosure.

The district court stated in its September 1998 disclosure order that
discovering the identities of Mr. Reiss's confidential news sources
was relevant to the court's ability to sanction the persons who had
violated the court's September 1997 sealing order. (J.A. 369). Under
other circumstances, enforcement of a validly entered confidentiality
order might well provide a compelling interest. 12 As we have decided
in the companion case of Ashcraft v. Conoco, Inc., No. 98-1212(L),
however, the sealing order entered in this case is invalid. Under estab-
lished Fourth Circuit precedent, before a district court may seal any
court documents, it must (1) give public notice of the request to seal
and allow interested parties a reasonable opportunity to object, (2)
consider less drastic alternatives to sealing the documents, and (3)
provide specific reasons and factual findings supporting its decision
to seal the documents and for rejecting the alternatives. See In re
Knight Pub. Co., 743 F.2d 231, 235-36 (4th Cir. 1984); Stone v. Uni-
versity of Maryland Med. Sys. Corp., 855 F.2d 178, 181 (4th Cir.
1988). In this case, unfortunately, despite the extensive press cover-
age and significant public interest in the subject of the lawsuit, none
_________________________________________________________________
12 In any case, of course, the compelling nature of the interest in enforc-
ing a sealing order would have to be balanced against the reporter's inter-
est in protecting the confidentiality of his sources. See LaRouche, 780
F.2d at 1139 ("In determining whether the journalist's privilege will pro-
tect the source in a given situation, it is necessary for the district court
to balance the interests involved.").

                    8
of the steps mandated by Knight and Stone were followed. Accord-
ingly, the sealing order is invalid. Enforcement of an invalid confi-
dentialty order cannot serve as a compelling interest justifying
disclosure of a reporter's confidential sources.

In conclusion, we find that the district court abused its discretion
when on September 3, 1998, and October 13, 1998, it ordered Mr.
Reiss to disclose the names and addresses of the two individuals who
had informed Mr. Reiss about the $36 million settlement figure. It
therefore follows that the district court's October 23, 1998 order hold-
ing Mr. Reiss in civil contempt for disobeying these orders must be
overturned. See McLean v. Central States, Southeast and Southwest
Areas Pension Fund, 762 F.2d 1204, 1210 (4th Cir. 1985) ("reversal
of the underlying order ordinarily invalidates any civil contempt sanc-
tions predicated thereon"). Accordingly, the judgment of the district
court is

REVERSED.

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