These cases were consolidated for hearing.1 We shall, however, state our reasons for their disposition separately and issue a separate judgment in each case.

I. ZERILLI AND POLIZZI V. SMITH, NO. 79-2466

Appellants Anthony T. Zerilli and Michael Polizzi brought an action under the Privacy Act2 and the Fourth Amendment against the Attorney General of the United States, the Director of the Federal Bureau of Investigation, and the Department of Justice. They contended that employees of the Department of Justice violated their constitutional and statutory rights by leaking to the Detroit News transcripts of conversations in which appellants discussed various illegal activities. These transcripts had originally been obtained by the Justice Department as the result of electronic surveillance conducted by the Federal Bureau of Investigation. According to appellants, a series of articles on organized crime written by reporter Seth Kantor and other members of the Detroit News staff were based on information obtained from the transcripts.3 When appellants deposed Kantor he refused to reveal his sources, relying on a qualified reporter's privilege under the First Amendment. Appellants moved to compel discovery.4 After denying appellants' motion,5 the District Court granted a Government motion for summary judgment.6 In this appeal Zerilli and Polizzi challenge both of these decisions. Because we believe that in this case the First Amendment interest in protecting a news reporter's sources outweighs the interest in compelled disclosure, we affirm the District Court's decision to deny the motion to compel discovery. We also affirm the decision to grant summary judgment in favor of the Government.

During criminal proceedings brought against Zerilli and Polizzi in the District Court for the Southern District of California in 1971,7 the Government revealed that the FBI had planted a listening device on the premises of the Home Juice Company in Detroit, Michigan and that as a result of this electronic surveillance it possessed logs of conversations in which appellants discussed various illegal activities.8 The parties stipulated that the listening device had been installed without a warrant in violation of the Fourth Amendment.9 Subsequently, in a separate proceeding, United States District Judge Gus J. Solomon ordered that the logs be sealed, forbidding their dissemination to the public.10 Before they were sealed, however, appellants and their attorneys were allowed to review the logs.11 The documents remain under seal at the Department of Justice, the only government agency possessing either the original logs or copies of the transcripts.

In 1976 the Detroit News published a series of articles entitled "Inside the Mafia" which discussed organized crime in Detroit.12 The articles identified appellant Zerilli as the Detroit mob leader and appellant Polizzi as a mob cohort.13 They purported to be based on the logs made by the FBI and contained many references to the logs.14 In March 1977 appellants filed their Privacy Act suit. They alleged that the logs were in appellees' exclusive possession and that employees of appellees had violated their statutory rights by leaking them to the Detroit News. They sought two million dollars each as damages.15 Later they filed an amended complaint seeking damages in a Bivens-type action,16 alleging that appellees had violated their Fourth Amendment rights.17 They stipulated that they were not seeking damages for the unlawful bugging of the Home Juice Company. Rather, they stated that their Fourth Amendment claim was based on the subsequent disclosure of the logs to the press.18

Shortly after filing their suit appellants propounded a set of seven interrogatories upon the Government.19 In one of these interrogatories they asked for a description of an investigation the Assistant Attorney General in charge of the Criminal Division had conducted to determine whether any Department of Justice employees were responsible for the leak.20 Appellees responded that the investigation had not uncovered any evidence suggesting that a Justice Department employee had disclosed the transcripts to the media.21 Several memoranda concerning the investigation were also provided.22 In response to other interrogatories appellees stated that to their knowledge no Government employee had disclosed the logs to the Detroit News.23 They also provided the names of the four Justice Department employees who knew most about the logs.24 Previously, during the 1971 criminal trial, the Department of Justice had provided appellants with a list of all Government officials who had access to the wiretap logs.25

Appellants did not seek further discovery from the Government; in particular, although they might have uncovered valuable information by questioning the employees who had access to the logs, they did not depose any of these individuals. In fact, in a subsequent pleading appellants stated:

The Department of Justice has certified to the Court that as a result of an internal investigation no individual connected with the Department of Justice released these documents to the Detroit News or its staff members. Counsel for the plaintiffs accept th(is) representation * * * without deeming it necessary to depose any individual employee of the Department of Justice or the F.B.I.

Reply to Opposition to Compel Discovery, Record in No. 79-2466, Document 33 at 2-3. Appellants later claimed that they accepted the Justice Department's representations, not because they actually conceded the truth of those representations, but for tactical reasons only. According to appellants, they wished to depose the Detroit News reporters regarding the identity of the individuals who had released the wiretap logs. But they believed that before they could overcome the reporters' qualified First Amendment privilege not to disclose confidential news sources they would be required to show that they had exhausted any alternative sources of information. They hoped their statement accepting the Justice Department's representations would satisfy this requirement.26 During oral argument on appeal counsel for Zerilli and Polizzi also claimed that they chose not to question the Government employees because depositions would have been time-consuming and costly and would probably have been unproductive.

The set of seven interrogatories propounded on the Justice Department was the only discovery taken by appellants within the time originally allotted for discovery. After the time allotted had expired appellants requested and obtained special leave to take the deposition of Seth Kantor, one of the authors of the Detroit News series on organized crime.27 At the deposition appellants asked a number of questions designed to elicit Kantor's sources. Kantor refused to answer, relying on a First Amendment privilege not to disclose information tending to identify confidential sources.28 Appellants then moved to compel discovery under Rule 37, Fed.R.Civ.P., claiming that their rights as civil litigants superseded the reporter's qualified First Amendment privilege.29 In a careful opinion the District Court denied this motion, stating that it was unable to find a compelling interest sufficient to warrant subordination of First Amendment values. The court emphasized appellants' failure to exhaust alternative sources of information. Zerilli v. Bell, 458 F. Supp. 26 (D.D.C.1978).

Appellees filed a motion for summary judgment with respect to the Privacy Act claim in September 1978, arguing that there was no genuine dispute as to any material fact. As support for their motion they cited: (1) their answers to appellants' interrogatories in which they stated that no Justice Department employee had released the logs to the Detroit News; (2) appellants' concession that these representations were true; and (3) appellants' answers to interrogatories propounded by the Government, in which they admitted that the wiretap logs had not been in the exclusive possession of the Justice Department.30 In their opposition to the motion for summary judgment appellants contended that there was a genuine issue concerning whether appellees had leaked the logs to the Detroit News.31 They pointed to the affidavits of their attorneys in the 1971 criminal trial, in which the attorneys stated that they had not released the logs.32 As for the statement in which they accepted the representations of the Government regarding its internal investigation, it was at this stage of the litigation that appellants first argued that they made this concession only so they could claim they had exhausted alternative sources before seeking to depose Seth Kantor.33 Finally, appellants argued that at the very least, rather than granting the motion for summary judgment, the District Court should provide them an opportunity to take further discovery.34

After refusing to allow further discovery, the District Court granted the Government motion for summary judgment with respect to the Privacy Act claim. The court stated:

Discovery in this action closed well over a year ago, and plaintiffs have failed to rebut defendants' statements negating disclosure with any credible evidence at all. Thus, the only thing the record before this Court shows is that the Department of Justice has conducted an internal investigation that turned up no information of any type of disclosure. Plaintiffs are therefore left with bald allegations of wrongful disclosure by defendants. * * *

Memorandum Order, Record in No. 79-2466 Document 57 (filed January 30, 1979). The Privacy Act claim was dismissed.35

The District Court later granted summary judgment in favor of the Government with respect to the Fourth Amendment claim.36 Describing the Fourth Amendment claim as "merely a new legal characterization of the same factual circumstances"37 underlying the Privacy Act claim, the court again stated that appellants had done no more than provide "bald allegations of wrongful disclosure by defendants."38 Just as these allegations would not support the Privacy Act claim, so they would not support the Fourth Amendment claim.

Appellants argue that the District Court erred when it denied their motion to compel Kantor to disclose his confidential sources. They claim that the First Amendment reporter's privilege should not prevail, since their interest in disclosure outweighs any public interest in protecting the sources. We begin by noting that the scope of review in this case is narrowly circumscribed. A motion to compel discovery is committed to the discretion of the trial court, and our function on appeal is solely to determine whether the trial court abused its discretion in entering the challenged order. See, e. g., Baker v. F & F Investment, 470 F.2d 778 (2d Cir. 1972), cert. denied, 411 U.S. 966, 93 S. Ct. 2147, 36 L. Ed. 2d 686 (1973); Carter v. Baltimore & Ohio R. Co., 152 F.2d 129 (D.C.Cir.1945); Montecatini Edison S. p. A. v. E. I. du Pont de Nemours & Co., 434 F.2d 70 (3d Cir. 1970); Tiedman v. American Pigment Corp., 253 F.2d 803 (4th Cir. 958). Given the record before us here, we must conclude that the District Court was well within the ambit of its discretionary authority when it denied appellants' motion to compel discovery.

Compelling a reporter to disclose the identity of a confidential source raises obvious First Amendment problems. The First Amendment guarantees a free press primarily because of the important role it can play as "a vital source of public information." Grosjean v. American Press Co., 297 U.S. 233, 250, 56 S. Ct. 444, 80 L. Ed. 660 (1936). "The press was protected so that it could bare the secrets of government and inform the people." New York Times Co. v. United States, 403 U.S. 713, 717, 91 S. Ct. 2140, 2143, 29 L. Ed. 2d 822 (1971) (Black, J., concurring). Without an unfettered press, citizens would be far less able to make informed political, social, and economic choices. But the press' function as a vital source of information is weakened whenever the ability of journalists to gather news is impaired.39 Compelling a reporter to disclose the identity of a source may significantly interfere with this news gathering ability; journalists frequently depend on informants to gather news, and confidentiality is often essential to establishing a relationship with an informant.40

In Branzburg v. Hayes, 408 U.S. 665, 92 S. Ct. 2646, 33 L. Ed. 2d 626 (1972), the Supreme Court held that a journalist does not have an absolute privilege under the First Amendment to refuse to disclose confidential sources to a grand jury conducting a criminal investigation, despite the potential interference with news gathering. The Court justified this decision by pointing to the traditional importance of grand juries and the strong public interest in effective criminal investigation. It recognized, however, that because news gathering is essential to a free press, it deserves some First Amendment protection. Thus the Court indicated that a qualified privilege would be available in some circumstances even where a reporter is called before a grand jury to testify. 408 U.S. at 707, 92 S.Ct. at 2669.41 Moreover, Justice Powell, who cast the deciding vote in Branzburg, wrote a concurring opinion in which he stated that courts can determine whether a privilege applies by using a balancing test:

The asserted claim to privilege should be judged on its facts by the striking of a proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct. The balance of these vital constitutional and societal interests on a case-by-case basis accords with the tried and traditional way of adjudicating such questions.

Id. at 710, 92 S.Ct. at 2671 (footnote omitted).

Although Branzburg may limit the scope of the reporter's First Amendment privilege in criminal proceedings, this circuit has previously held that in civil cases, where the public interest in effective criminal law enforcement is absent, that case is not controlling. Carey v. Hume, 492 F.2d 631, 636 (D.C.Cir.), cert. dismissed, 417 U.S. 938, 94 S. Ct. 2654, 41 L. Ed. 2d 661 (1974).42 In Carey we considered the question whether a reporter being sued for libel could refuse to reveal the identity of confidential sources who provided the information on which the allegedly libelous news story was based. We decided that the circumstances of that case did not warrant application of a First Amendment privilege. We indicated, however, that a qualified reporter's privilege under the First Amendment should be readily available in civil cases. An approach similar to that described by Justice Powell in Branzburg was adopted. We held that to determine whether the privilege applies courts should look to the facts of each case, weighing the public interest in protecting the reporter's sources against the private interest in compelling disclosure. 492 F.2d at 636.43 Every other circuit that has considered the question has also ruled that a privilege should be readily available in civil cases, and that a balancing approach should be applied. See Riley v. City of Chester, 612 F.2d 708, 715-716 (3d Cir. 1979) (upholding assertion of privilege); Silkwood v. Kerr-McGee Corp., 563 F.2d 433, 436-438 (10th Cir. 1978) (same); Baker v. F & F Investment, supra, 470 F.2d at 783 (same); Cervantes v. Time, Inc., 464 F.2d 986 (8th Cir. 1972) (same); Miller v. Transamerican Press, Inc., 621 F.2d 721, 725 (5th Cir. 1980) (ruling that privilege does not prevail); see also Democratic Nat'l Committee v. McCord, 356 F. Supp. 1394, 1398 (D.D.C.1973) (upholding privilege); Gulliver's Periodicals, Ltd. v. Chas. Levy Circulating Co., 455 F. Supp. 1197, 1203 (N.D.Ill.1978) (same); Altemose Construction Co. v. Building & Construction Trades Council of Philadelphia, 443 F. Supp. 489, 491 (E.D.Pa.1977) (same); Gilbert v. Allied Chemical Corp., 411 F. Supp. 505, 508 (E.D.Va.1976) (same).44

In general, when striking the balance between the civil litigant's interest in compelled disclosure and the public interest in protecting a newspaper's confidential sources, we will be mindful of the preferred position of the First Amendment and the importance of a vigorous press. Efforts will be taken to minimize impingement upon the reporter's ability to gather news. Carey v. Hume, supra, 492 F.2d at 639. Thus in the ordinary case the civil litigant's interest in disclosure should yield to the journalist's privilege.45 Indeed, if the privilege does not prevail in all but the most exceptional cases, its value will be substantially diminished. Unless potential sources are confident that compelled disclosure is unlikely, they will be reluctant to disclose any confidential information to reporters.46

A number of more precise guidelines can be applied to determine how the balance should be struck in a particular case. The civil litigant's need for the information he seeks is of central importance. If the information sought goes to "the heart of the matter," Carey v. Hume, supra, 492 F.2d at 636,47 that is, if it is crucial to his case, then the argument in favor of compelled disclosure may be relatively strong. See also Miller v. Transamerican Press, Inc., supra, 621 F.2d at 726. In Carey v. Hume, for example, the privilege was not recognized in part because the identity of the reporter's source was central to the plaintiff's proof in his libel action.48 On the other hand, if the information sought is only marginally relevant, disclosure may be very difficult to justify. See Baker v. F & F Investment, supra, 470 F.2d at 783-784 (recognizing privilege in part because information sought was not important).49

The efforts made by the litigants to obtain the information from alternative sources is also of central importance. Even when the information is crucial to a litigant's case, reporters should be compelled to disclose their sources only after the litigant has shown that he has exhausted every reasonable alternative source of information. As we stated in Carey v. Hume, supra, 492 F.2d at 638, "The values resident in the protection of the confidential sources of newsmen certainly point towards compelled disclosure from the newsman himself as normally the end, and not the beginning, of the inquiry." See also Riley v. City of Chester, supra, 612 F.2d at 717-718; Silkwood v. Kerr-McGee Corp., supra, 563 F.2d at 430; Baker v. F & F Investment, supra, 470 F.2d at 784; Miller v. Transamerican Press, Inc., supra, 621 F.2d at 726. To be sure, there are some limits to the obligation to pursue alternative sources. In Carey, for example, the reporter being sued had stated that his source was an employee of the national headquarters of the United Mine Workers of America. We decided that the litigant need not have deposed every one of the UMWA's employees. Nonetheless, the obligation is clearly very substantial. In Carey we suggested that an alternative requiring the taking of as many as 60 depositions might be a reasonable prerequisite to compelled disclosure. Carey v. Hume, supra, 492 F.2d at 639.50

A distinction can also be drawn between civil cases in which the reporter is a party, as in a libel action, and cases in which the reporter is not a party. When the journalist is a party, and successful assertion of the privilege will effectively shield him from liability, the equities weigh somewhat more heavily in favor of disclosure. As we suggested in Carey v. Hume, supra, 492 F.2d at 634, 636-639, this will be particularly true in libel cases involving public officials or public figures where the rule of New York Times Co. v. Sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964), applies. Plaintiffs in those cases must prove both that the allegedly defamatory publication was false, and that it was made with "actual malice." Proof of actual malice will frequently depend on knowing the identity of the newspaper's informant, since a plaintiff will have to demonstrate that the informant was unreliable and that the journalist failed to take adequate steps to verify his story. Protecting the identity of the source would effectively prevent recovery in many Times -type libel cases. See Carey v. Hume, supra; Miller v. Transamerican Press, Inc., supra.51 We take care to point out, however, that disclosure should by no means be automatic in libel cases. Where other relevant factors suggest disclosure is inappropriate, the privilege should prevail. See Cervantes v. Time, Inc., supra (ruling that privilege should prevail in libel case where information sought was not crucial).

Applying these guidelines to the facts of the case before us, we readily find that the District Court did not abuse its discretion when it concluded that a qualified First Amendment privilege should apply. It is true that appellants' suit is not frivolous. Moreover, the information they seek is crucial to their case. The success of their Privacy Act and Fourth Amendment claims may depend on the identities of the individuals who leaked the wiretap logs to Kantor. But appellants clearly have not fulfilled their obligation to exhaust possible alternative sources of information.52 In response to appellants' interrogatories the Department of Justice provided a list of the names of four employees who knew most about the wiretap logs. During the 1971 criminal trial the Government also provided a list of employees who had been given access to the transcripts. Yet appellants made no attempt to depose any of these individuals. Appellants cannot escape their obligation to exhaust alternative sources simply because they feared that deposing Justice Department employees would be time-consuming, costly, and unproductive. At the very least, they could have deposed the four employees who had the greatest knowledge about the logs.53 It is quite possible that interviewing these four individuals could have shed further light on the question whether the Justice Department was responsible for the leaks.54 Nor can appellants escape their obligation to exhaust alternatives because they were willing to accept the Justice Department's statement that an internal investigation had not revealed any wrongdoing by employees. Permitting this kind of gamesmanship would poorly serve the First Amendment values at stake here.55 Finally, we note that this is not a case like Carey v. Hume, supra, in which a reporter is being sued for libel under the rule of New York Times Co. v. Sullivan, supra. Nor is Kantor a party to these Privacy Act and Fourth Amendment claims. He is not asserting the privilege in order to protect himself from liability.

Appellants argue that the District Court also erred when it granted summary judgment in favor of the Government with respect to their Privacy Act and Fourth Amendment claims. They claim that a genuine issue of material fact does exist. The Government has alleged that it did not release the logs. Appellants allege that neither they nor their attorneys in the earlier criminal trial released the documents. Thus, according to appellants, there is a dispute about who was responsible for the leak and this dispute must be resolved at trial. We disagree; we believe that the District Court's decision to grant summary judgment was correct.

Summary judgment was clearly appropriate if appellants intended to concede the absence of wrongdoing on the part of Justice Department employees when they stated that they accepted the Government's representations with respect to its internal investigation. If this interpretation of their statement is correct,56 then appellants have conceded their entire case. But summary judgment was appropriate even if we accept appellants' claim that this statement was made solely for tactical reasons. Under Rule 56(e) a party against whom a motion for summary judgment is made may not simply rest upon the mere allegations or denials of his pleadings. Instead, his response must set forth, by affidavits or other evidence, specific facts showing that there is a genuine issue for trial.57 Here, appellants have failed to meet this obligation. It is true that appellants provided affidavits in which they and their attorneys in the 1971 criminal trial state that they did not leak the documents. But the affidavits simply restate the allegations of the pleadings, where appellants claim that they were not responsible for disclosing the logs to the press.58 Appellants have not made a serious effort to fulfill their obligation under Rule 56(e) to provide specific facts. If appellants had attempted to uncover evidence supporting their claims, we might view this case in a different light. But during the discovery stage of these proceedings they demonstrated a remarkable lack of energy. Again, no attempt was made to depose any of the Department of Justice employees who had access to the tapes. Appellants have also failed to demonstrate, for example, that none of the court personnel who would have had access to these documents during the earlier criminal trial were not responsible for the disclosures to the press.59 See Thompson v. Evening Star Newspaper Co., 394 F.2d 774, 777 (D.C.Cir.), cert. denied, 393 U.S. 884, 89 S. Ct. 194, 21 L. Ed. 2d 160 (1968); Continental Casualty Co. v. American Security Corp., 443 F.2d 649, 651 n.7 (D.C.Cir.1970), cert. denied, 402 U.S. 907, 91 S. Ct. 1378, 28 L. Ed. 2d 647 (1971). See generally 10 C. Wright & A. Miller, Federal Practice and Procedure § 2738 (1973).

Appellants suggest that, at the very least, the District Court should have allowed further discovery before granting summary judgment in favor of the Government. Here again, we believe that the District Court's action was appropriate. First, appellants' request for further discovery was not accompanied by the affidavit required under Rule 56(f). Under that rule a court may deny summary judgment or order a continuance to permit discovery when the party opposing the motion presents an affidavit setting forth reasons showing why he is currently unable to present affidavits supporting his opposition.60 In any event, even if appellants had complied with Rule 56(f), a continuance would not have been justified, since appellants had ample opportunity prior to the motion for summary judgment to take discovery.61

This appeal involves a Freedom of Information Act suit brought by Zerilli, in which Polizzi did not participate. In 1975 Zerilli requested all records pertaining to him that were maintained by the Department of Justice. This request was forwarded to the FBI, the Criminal Division of the Justice Department, the Board of Parole, and the Bureau of Prisons.62 The Criminal Division released some documents in May 1977.63 Several weeks later appellant filed suit in the District Court seeking disclosure of the withheld documents.64 After the suit had been filed the FBI released numerous documents.65 In May 1979, after filing the supporting affidavits and indices required by Vaughn v. Rosen, 484 F.2d 820 (D.C.Cir.1973), cert. denied, 415 U.S. 977, 94 S. Ct. 1564, 39 L. Ed. 2d 873 (1974), the Government filed a motion for summary judgment. In its motion it argued that each document withheld and every deletion from documents that had been released was exempt from disclosure under one or more Freedom of Information Act exemptions.66 On June 12, 1979 the parties stipulated, with the approval of the court, that Zerilli would have until June 30, 1979 to respond to the motion. On July 10, 1979 the District Court approved another stipulation extending the time for response until July 31, 1979. On September 7 the District Court entered an order extending the time for response to September 17, 1979.67

Appellant finally responded to the motion on September 17, 1979, when he filed a one-page document entitled "Opposition to Motion for Summary Judgment." No legal arguments were presented in this document; appellant simply stated that he vigorously opposed the motion and "rel(ied) on the pleadings * * * and the various documents filed with the Court * * *."68 He also requested an extension of time until October 16, 1979 to file the memorandum of points and authorities required by Local Rule 1-9(d),69 stating that he had been busy with other commitments.70 The District Court never ruled on the request for an extension of time. However, appellant never filed a memorandum of points and authorities.71 On October 26, 1979, well after the extension of time would have expired even if it had been granted, the District Court decided in favor of the Government on its motion for summary judgment. Relying on the entire record as well as on appellant's failure to file any controverting affidavits or other materials in opposition and on his failure to file the memorandum of points and authorities required by Local Rule 1-9(d), the court treated the Government motion as conceded.72

Appellant Zerilli claims that the District Court erred when it granted summary judgment in favor of the Government. Once again, we agree with the District Court's decision. Appellant's one-page "Opposition to Motion for Summary Judgment" clearly failed to satisfy the requirements of Local Rule 1-9(d). That rule provides that if a party opposing a motion fails to file a statement of points and authorities, the court may treat the motion as conceded.73 The time prescribed by this rule for filing the statement of points and authorities is ten days. Here, appellees filed their motion for summary judgment and three extensive Vaughn v. Rosen affidavits and indices in May 1979.74 Zerilli filed his opposition four months later, after three extensions of time. His opposition did not cite any authorities or contain any legal argument. Instead, he merely stated that he "vigorously oppose(d) the motion" and that he was relying upon the "pleadings * * * and the various documents filed with the Court."75 Under the circumstances, the District Court properly treated the Government motion as conceded. It is true that in his opposition appellant requested an extension of time until October 16, 1979 so that he could file a supporting memorandum. But even though the court never specifically ruled on this motion, it did not grant the motion for summary judgment until October 26, 1979, eleven days after the requested extension would have expired. Moreover, the memorandum was never filed.76

For the reasons stated in this opinion, the judgments of the District Court in Nos. 79-2466 and 79-2480 are

Affirmed.

I concur in the result, upon the ground that before asking the court to compel answers from the reporter Kantor the plaintiffs failed to explore alternative sources of information that were plainly available to them. This failure justified the court's refusal to compel answers from Kantor.

I do not join in the broad statements concerning the "reporter's privilege" set out in the majority opinion. In my judgment this sweeping exposition is unnecessary to the decision.