Zerilli v. Smith

Anthony Zerilli and Michael Polizzi (plaintiffs) came under criminal investigation by the federal government. During the investigation, wiretaps recorded Zerilli and Polizzi discussing illegal conduct. The district court found that the wiretaps violated the Fourth Amendment and ordered the wiretap logs to be sealed. Seth Kantor and other writers at the Detroit News authored a series of articles reporting on organized crime in Detroit. The articles included information from the wiretap transcripts and referred to the wiretap logs. Zerilli and Polizzi filed a civil claim in federal court under the Privacy Act against the attorney general of the United States, the director of the Federal Bureau of Investigation, and the Department of Justice (DOJ) (defendants), alleging that DOJ employees leaked the wiretap transcripts to the Detroit News. An assistant attorney General investigated DOJ’s potential responsibility for the leak. Zerilli and Polizzi served interrogatories on the government, seeking the results of the DOJ investigation. The government responded that the DOJ was not involved and conveyed the names of four DOJ employees who were most familiar with the wiretap logs. During the criminal trial, Zerilli and Polizzi were given the names of all government officials who had access to the logs. Zerilli and Polizzi claimed to accept the DOJ’s findings and did not subpoena any of the people whose names the DOJ provided. Zerilli and Polizzi instead deposed Kantor, who refused to disclose his source of the wiretaps logs and claimed a qualified reporter’s privilege under the First Amendment. Zerilli and Polizzi filed a motion to compel discovery, asking that the court mandate Kantor to disclose the source. The district court denied the motion to compel. Zerilli and Polizzi appealed.