Law Shielding Journalists Faces a New Test : Civil case: State justices are asked to rule on protection granted news organizations involving unpublished material. Request stems from Santa Barbara suit.

In a new test of the reporter’s “shield law,” the state Supreme Court has been asked to rule that news organizations may be forced to surrender unpublished photos and other data for use in civil cases.

The law, added to the state Constitution in 1980, protects journalists from being held in contempt and possibly jailed for refusing to disclose news sources or “any unpublished information.”

Last May, the high court, balancing competing constitutional rights, held that under the law reporters still could be required to give evidence in criminal cases when a defendant’s right to a fair trial was at stake. Now the question before the justices is whether exceptions also apply in civil disputes.

The court heard arguments this week in a case in which an auto manufacturer is seeking unpublished accident photos, taken by the Santa Barbara News-Press, for potential use as evidence against a personal injury suit.

Michael A. Zuk of Los Angeles, attorney for Volkswagen of America Inc., argued that in civil cases, just as in criminal prosecutions, the shield law does not provide journalists with absolute protection. News agencies and employees, like anyone else, can be forced to disclose non-confidential information about a public event, he said.

Civil litigants have a right to a fair trial and due process of law--and that means access to “crucial evidence,” Zuk said. “This will not in any fashion impede, diminish or otherwise harm the function of news gathering.”

But C. Michael Cooney of Santa Barbara, the lawyer for the newspaper, countered that while exceptions to the shield law could be made for criminal defendants, they should not be granted in civil lawsuits.

Should the court rule otherwise, Cooney warned, news organizations would face a “flood” of demands for their unpublished notes, photos and eyewitness observations. “Every single reporter is going to be subject to civil subpoenas and this case will happen over and over and over again,” he said.

A decision in the case is due in 90 days. But some justices suggested in Tuesday’s hourlong hearing that procedurally, the case may not be ready for a decision on its merits because neither the paper nor the photographer has yet been formally charged with contempt.

The case arose following an auto accident in June, 1984, at an on-ramp on U.S. 101. A News-Press photographer, Robert Ponce, took pictures at the scene, two of which were printed in the paper. Later, Jerome Sortomme, a passenger injured in the crash, sued the state of California, charging negligent design of the freeway, and Volkswagen, alleging the van in which he was riding was unsafe.

In defending against the suit, the manufacturer sought all photographs taken by the News-Press. But the newspaper refused an order from the trial judge to turn the material over for inspection, citing the shield law’s provisions against forced disclosures in cases where the news media were not parties.

In June, 1988, a state Court of Appeal in Ventura upheld the paper, concluding that the law gives “absolute protection” to journalists in such cases.

Volkswagen’s subsequent appeal to the state Supreme Court was backed by the Product Liability Advisory Council and the Motor Vehicle Manufacturers Assn., two industry organizations. The groups said that judges, in deciding whether to require news organizations to turn over unpublished information in civil cases, should consider the nature of the dispute, the relevance of the data and whether the information could also be obtained elsewhere.

The appeals court ruling, if upheld, could lead to “absurd results,” the groups said. For example, they said, a television cameraman could refuse to surrender unused videotape of an air crash to federal investigators or to lawyers for victims who later bring suit.