LANCE GILMAN, an individual, Plaintiff vs. SAM TOLL, an individual; DOES l- V, inclusive; and ROE ENTITIES Vl- X, inclusive, IN THE FIRST JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA IN AND FOR STOREY COUNTY -oOo- CASE NO.: 18 TRT 00001 1E DEPT. NO.: 2 ORDER ON MOTION TO COMPEL, FOR SANCTIONS, TO EXTEND DISCOVERY PERIOD, AND FOR JUDGMENT ORDER VACATING HEARING Defendants. PROCEDURAL BACKGROUND Sam Toll authors articles he publishes on a website 'under the domain storeyteller.online (the Storey Teller). Lance Gilman sued Toll for defamation based [:pon several articles Toll published on the Storey Teller. Toll ?led an otion to dismiss. The Court entered an order allowing Gilman to conduct discovery limited solely to information as to whether Toll knew the ?resident communications,? (Speci?cally described in the Order Granting Special Motion to Dismiss in Part and Allowing Limited Discovery beginning at page 7 of the order), were false or whether Toll acted with a high degree of awareness of the probable falsity of the statement or had serious doubts as to the publication?s truth. Before the Court is Plaintiffs Motion to Compel, Motion for Sanctions, Motion to Extend the Time Period for Discovery, and in the Alternative, Motion for Partial Summary Judgment. Toll opposed the motion and Gilman ?led a reply. The Court issued an Order for Evidentiary Hearing on Motion to Compel. Upon further review it appears an evidentiary hearing is not necessary as the facts necessary to decide the motion are not contested. The issues for the Court to decide are legal issues. ISSUES Is Toll a reporter of a newspaper or press association? If Toll is a reporter of a newspaper or press association, should the news media [privilege yield to Gilman?s need for the sources of information to obtain evidence which essential to Gilman?s ability to prove actual malice. If Toll is not a reporter of a newspaper or press association, should the Court impose sanctions for Toll?s refusal to answer the deposition questions? If Toll is not a reporter of a newspaper or press association, should the Court ?grant Gilman?s request to extend the discovery deadline? Has Gilman demonstrated he is entitled to summary judgment? FACTS Toll publishes articles on his Storey Teller blog. The articles Toll publishes contain facts or alleged facts, opinions, commentary, and/ or satire related to events in Storey County. Toll?s articles contain reports and comments on events in Storey County. The Storey Teller is published electronically only. The Storey Teller is not printed. The articles at issue were published by Toll on April 7, 2017, April 18, 2017, May 20, 2017, October 16, 2017, and December 3, 2017. Toll has been a member of the Nevada Press Association since August of 2017. Gilman deposed T011 and asked questions about Toll?s sources of information related to the ?resident communications.? The deposition questions about sources that Gilman included in his motion did not specify any Speci?c time frame. Page 2 of 10 Toll asserted the news media privilege in response to several questions as set out in Gilman?s motion. LEGAL PRINCIPLES NRS 49.275, the news media privilege, provides in relevant part: No reporter, former reporter or editorial employee of any newspaper, periodlcal or press associatlon may be required to disclose the source 0 any Information procured or obtained by such person, in any legal proceedings, trial or 1nvestigation: 1. Before any court A party asserting a privilege has the burden of proving that the privilege applies. McNair v. Eighth Judicial Dist. Ct, 1285, 1289, 885 P.3d 576, 579 (1994) (the burden is on the party asserting a privilege to establish that the requested information comes within the privilege). ANALYSIS Arguments of counsel Gilman argued there is nothing in the four corners of NRS 49.275 that applies to Toll or his Storey Teller. Gilman pointed out that the ?About Section? of the Storey Teller states, ?the [Storey Teller] was created to provide a source of irritation to the Good Old Boys who operate The Biggest Little County in the World with sel?sh impunity orever.? Gilman argued ?the Storey Teller by its own admission was not created for the urpose of disseminating news to the general public,? ?the Storey Teller is not news,? (1 therefore, ?the Defendant is not a reporter.? Gilman further argued that ?there is othing providing for a blogger such as the Defendant in the statute.? Gilman asserted Toll ?has never made a showing how he quali?es for the protections afforded by NRS 49.275, and therefore, ?the Defendant is not entitled to the protections set forth in NRS 49275.? In opposition Toll argued he is a reporter because he started the Storey Teller as an alternative to the Comstock Chronicle, a newspaper published in Virginia City; the Page 3 of 10 articles Toll published ?relate to news events and/ or opinion and/ or satire about news "events in Storey County.? Toll points out he is and has been a member of the Nevada Press Association since August of 2017, and that Association lists on its website the Storey Teller as a ?specialized publication.? Toll also has a Nevada Legislative Counsel Bureau (LCB) identi?cation. The Court received no evidence of when Toll received the LCB identi?cation. Toll provided a dictionary de?nition of ?reporter? that includes a ?person who is employed by a newspaper, magazine, or television company to gather and report news, and a person who broadcasts news. Toll cites to a Ninth Circuit decision that indicated ?with the advent of the Internet and the decline of print and broadcast media the line between the media and others who wish to comment on political and social issues become far more blurred.? In reply Gilman essentially repeated arguments he made in his motion. Is Toll a reporter of a newspaper or press association? Under NRS 49.275, as applicable to this case, a reporter of any newspaper, "periodical or press association has a privilege refuse to disclose any source of information procured or obtained by such person in any legal proceeding before a court. A party asserting a privilege has the burden of proving that the privilege applies. Because Toll is asserting the news media privilege he has the burden of proving the privilege applies. Toll did not provide facts, legal authority, or argument that the Storey Teller is a periodical and therefore the Court will not address whether the Storey Teller is a periodical. Therefore, Toll has the burden of proving he is a reporter of a newspaper, or of a press association. The Court will ?rst address whether is a reporter. Toll?s articles at issue contain reports of facts or alleged facts, opinions, commentary, and/ or satire related to events in Storey County. A ?reporter? is de?ned as one that reports; one who reports news events; a commentator. Webster?s Third New International Dictionary 1926 (2002). Because Tolls? articles at issue contain reports of Page 4 of 10 [:icts or alleged facts, opinions, commentary, and/ or satire related to events in Storey ounty, Toll ?ts the de?nition of a reporter. The Court concludes is a reporter. The Court next turns to whether the Storey Teller is a newspaper. Toll publishes his articles on the internet and not in any other format. He does not print his articles. The Legislature did not de?ne ?Newspaper? in NRS 49.275 0r lielsewhere in Chapter 49. The Legislature has de?ned ?newspaper? in several other chapters of the NRS. It appears that under all of the statutory de?nitions a newspaper must be printed. For example, NRS Chapter 238, which relates to legal notices and advertisements, in 238.020, de?nes daily, triweekly, semiweekly, weekly and newspapers. All of the de?nitions in NRS 238.020, and apparently throughout the Nevada Revised Statutes, include that a newspaper is printed. The Legislature?s de?nition of ?newspaper? in NRS 238.020 is particularly relevant and signi?cant because if a blog is a newspaper, then legal notices ?or other written matter whatsoever, required to be published in a newspaper by any law of this State, or by the order of any court of record in this state? (NRS 238.010) could be published on a blog. The statutory de?nitions are consistent with the usual and natural meaning of ?newspaper.? Webster de?ned ?newspaper? as a paper that is printed and distributed. Webster?s Third New International Dictionary 1524 (2002). Toll did not offer any de?nition of ?newspaper? that would cover a blog. Whether a blog should be covered by lithe news media privilege is a matter for the legislature, not the courts. Toll argued the Nevada Press Association?s website includes the Storey Teller as a ?specialized publication.? That is true. The website also contains information regarding ?daily newspapers.? That heading includes the Las Vegas Review Journal, the Reno Gazette Journal, the Elko Daily Free Press, the Nevada Appeal, and Nevada Legal News. The Court takes judicial notice that all of these publications are printed. The website "also contains information concerning ?non-daily newspapers.? The Court is not familiar with the publications listed as non-daily newspapers. The point is, the Nevada Press Association recognizes a number of publications as newspapers, but the Storey Teller is Page 5 of 10 l0 l?l oSoo'x'ioxGLoomEo them. Toll submitted an af?davit of Barry Smith, Executive Director of the evada Press Association. Mr. Smith did not say the Storey Teller is a newspaper. In fact distinguishes between daily and weekly news publications on the one hand and online news services, magazines, and others, on the other hand. The Court concludes that because Toll does not print the Storey Teller the Storey Teller is not a newspaper and, therefore the news media privilege is not available to Toll under the ?reporter of a newspaper? provision of NRS 49.275. The Court turns now to whether Toll is a reporter of a of a press association. Toll is and has been a member of the Nevada Press Association since August of 2017. Gilman did not present any facts, legal authority, or argument that the Nevada Press Association Is not a press association. The Court ?nds and concludes the Nevada Press Association is press association. Because Toll is a member of a press association the Court concludes is reporter of a press association and therefore the news media privilege may apply. Because Toll has been a reporter of a press association since August of 2017 he is and has been covered by the NRS 49.275 news media privilege since August of 2017. But, because he was not a reporter for a newspaper or press association before August of 2017 he was not covered by the news media privilege before August of 2017. Therefore, he news media privilege does not cover sources of any information procured or btained by Toll before August of 2017, and therefore, the motion to compel must be anted as to any sources of information procured or obtained by Toll for the articles at I'ssue before August of 2017. Should the news media privilege yield to Gilman?s need for the sources of information to obtain evidence which 18 essential to Gilman?s ability to prove actual rna Ice? The United States District Court for the District of Nevada has addressed this ?issue. In Newton 1). National Broadcasting Co., 109 F.R.D. 522 (1985) the singer and actor, Wayne Newton, sued NBC for defamation allegedly contained in news broadcasts. Newton was a public ?gure and so, like Gilman, had to prove actual malice to prove Page 6 of 10 defamation. Newton sought discovery of sources and NBC invoked the NRS 49.275 news media privilege. The court acknowledged that the information about sources was critically important to Newton?s ability to meet his burden of proof. The court noted the tension between a defamation plaintiffs legitimate interest in attempting to meet his burden of proof on actual malice and the equally legitimate 'nterests of a media defendant?s interests in protecting the con?dentiality of its sources nd thereby presumably promote the viability of a free press. The court came to the ?inescapable conclusion? that NBC could not be forced to disclose its sources because of evada?s statutory news media privilege. The court noted ?the Nevada legislature, in ranting almost absolute protection to a journalist from disclosure of his con?dential sources, has made a decision to favor the public?s interest in access to information over an individual?s interest in vindicating his reputation in a defamation action.? Id. 530. For the same reasons the same result is required in this case. This Court acknowledges that the information about sources is critically important to Gilman?s bility to meet his burden of proof on the actual malice issue. The Court concludes the ews media privilege does not yield to Gilman?s need for the sources of information to btain evidence which is essential to Gilman?s ability to prove actual malice. The rivilege does not yield because the Nevada Legislature, in granting almost absolute rotection to a journalist from disclosure of his con?dential sources, has made a ecision to favor the public?s interest in access to information over an individual?s 'nterest in vindicating his reputation in a defamation action and thereby presumably romoting the viability of a free press. Should the Court impose sanctions for Toll?s refusal to answer the deposition questions? Gilman has not, in his points and authorities, shown that any of the deposition questions in issue were about any speci?c time frame. The Court concludes that because Page 7 of 10 lithe deposition questions were not limited to sources of information Toll procured or obtained before August of 2017 the motion for sanctions will be denied. Should the Court grant Gilman?s request to extend the discovery deadline? Because the motion to compel must be granted in part, the Court concludes Gilman?s motion to extend the time for discovery must also be granted so he can obtain iidiscovery of sources of information procured or obtained by Toll before August of 2017. Should the Court grant Gilman?s motion for partial summary judgment? The Court concludes Gilman has failed to show that he is entitled to partial summary judgment. Therefore his motion for partial summary judgment must be denied. CONCLUSIONS OF LAW Because Toll was not a reporter for a newspaper or press association before August of 2017 he was not covered by the news media privilege before August of 2017, and therefore, the motion to compel must be granted as to any source of information obtained or procured by Toll before August of 2017. Because Toll has been and is a reporter of a press association since August of 2017 is and has been covered by the news media privilege since August of 2017, and erefore the motion to compel must be denied as to any source of information procured obtained by Toll during or after August of 2017. The news media privilege does not yield to Gilman?s need for the sources of 'nformation to obtain evidence which is essential to Gilman?s ability to prove actual alice. Because the deposition questions were not limited to sources of information Toll procured or obtained before August of 2017 the motion for sanctions will be denied. Page 8 of 10 Gilman?s motion to extend the time for discovery must be granted so he can obtain discovery of sources of information procured or obtained by Toll during or before August of 2017. Gilman failed to show he is entitled to partial summary judgment. ORDER Gilman?s motion to compel is granted as to sources of information procured or robtained by Toll before August of 2017. Gilman?s motion to compel is denied as to sources of information procured or obtained by Toll during and after August of 2017. Toll will not be allowed to rely on the privileged information as a defense under Diaz v. Dist. Ct, 116 Nev. 88, 101993 P.2d 50 (2000), citing Las Vegas Sun, 104 Nev. 508, 514, 761 P.2d at 853-54 (1988). Gilman?s motion for sanctions is denied. Gilman?s motion to extend the time for discovery is granted. Discovery must be completed by April 12, 2019. Gilman?s motion for partial summary judgment is denied. March 4, 2019. es r. 7 Judge Page 9 of 10 CERTIFICATE OF SERVICE I certify that I am an employee of the First Judicial District Court of Nevada; that on the {3 day of March, 2019, I served a copy of this document by placing a true copy will an envelope addressed to: John L. Marshall, Esq. Gus Flanges, Esq}.E 570 Marsh Ave. essma K. Peterson, sq. Reno, NV 89509 3275 South Jones Blvd, Suite 105 Las Vegas, NV 89164 Luke Busby, Esq. 316 California Ave, #82 Reno, NV 89509 he envelope sealed and then deposited in the Court?s central mailing basket in the court ':lerk?s of?ce for delivery to the USPS at 1111 South R00p Street, Carson City, Nevada, for mailing. I . Susan Judicial sis nt Page 10 of 10