
    Slagle, Admr., v. Coca-Cola, Inc. et al. 
    
      (No. 85-25
    Decided February 27, 1986.)
    Court of Common Pleas of Montgomery County.
    
      Steven S. Nelson, for plaintiff. Robert E. Fortune, for Dayton Newspapers, Inc. et al.
    
      Gregory Gibson, for defendant Brenner Tank, Inc.
    
      Edgar A. Strause, for defendant Coca-Cola, Inc.
    
      John M. Cronquist, for defendant Northeast Ohio Axle, Inc.
   Kessler, J.

This matter is before the court on a motion to quash two subpoenas. The motion has been brought by Dayton Newspapers, Inc., Skip Peterson, Bill Garlow, and Joseph Fenley. The movants have been served with two subpoenas duces tecum by counsel for Crella Slagle, the plaintiff, requesting photographs taken of an accident in which plaintiffs decedent was killed. One of these subpoenas requested photographs of the accident in the possession of the Dayton Journal Herald. The second subpoena, directed to Bill Garlow, requested all photographs taken by him which are not the property of the Dayton Journal Herald.

The movants supplied to the plain.tiff a copy of the photograph that was published; however, the movants declined to produce any of the unpublished photographs. The coerced production of these unpublished photographs would, according to the movants, violate the First Amendment’s freedom of press protection.

In Branzburg v. Hayes (1972), 408 U.S. 665, 681, the United States Supreme Court recognized that news gatherers qualify for First Amendment protection. The extent of this privilege is not absolute and must be balanced with other important interests. Fawley v. Quirk (Ohio App. 1985), 11 Med. L. Rptr. 2336, 2337. “When balancing these competing interests, the following factors should be considered: ‘(1) * * * is the information relevant, (2) can the information be obtained by alternative means, and (3) is there a compelling interest in the information.’ ” Id. at 2337-2338 (quoting Miller v. Transamerican Press, Inc. [C.A. 5, 1980], 621 F.2d 721, 726).

In determining the appropriateness of forcing disclosure, the type of case involved is also a relevant consideration. A news gatherer’s privilege is given greater weight in a civil action. Baker v. F & F Invest. (C.A. 2, 1972), 470 F.2d 778, 785. This privilege applies to the disclosure of the unpublished negatives of the photographs taken in the course of news gathering. Schulthise v. Weyer Bros. (Fla. App. 1980), 6 Med. L. Rptr. 1661, 1661-1662.

The plaintiff has failed to establish, pursuant to this three-prong test, that disclosure of the photographs should be ordered. The first prong of the test examines relevancy and requires a showing that the evidence sought will relate directly to the issue at bar. Brown v. Commonwealth (1974), 214 Va. 755, 757, 204 S.E. 2d 429, 431. The plaintiff claims that the photographs will be instrumental in the reconstruction of the accident from which this cause arose. The relevancy requirement seems to be met by the plaintiff. The second prong of the test requires the showing that all possible alternative sources of the evidence have been exhausted. Zerilli v. Smith (C.A.D.C. 1981), 656 F.2d 705. The plaintiff claims that “it would be useful to look at all photographs available of the accident * * but does not allege that there is not other evidence available. In fact, the plaintiffs expert alludes to the existence of other physical evidence available. The final issue is whether the case can adequately be litigated without the undisclosed information. Carey v. Hume (C.A.D.C. 1974), 492 F.2d 631, 638.

The plaintiff here has failed to show a compelling need for the photographs. In order to justify the disclosure of the photographs, the plaintiff must show more than that the photographs would be useful. Plaintiff must show that the photographs would be essential to the case. The expert’s testimony offered by the plaintiff does not point to a compelling need. There are no allegations made by the plaintiff that, without the photographs, litigating the case would be impossible, or burdensome. The plaintiff has failed to show that the need for the disclosure outweighs the news gatherer’s privilege protected by the First Amendment. It is, therefore, the holding of this court that the motion to quash the two subpoenas be granted.

Motion granted.  