1. Civil

In civil actions, the party seeking to compel disclosure must show a particularly strong need for the privileged information (both relevancy and that the material "goes to the heart of the matter") and an inability to obtain the information from another source (a requirement on the party seeking the information to first exhaust those alternative sources). See Silkwood v. Kerr-McGee Corp., 563 F.2d 433, 438 (10th Cir. 1977). The court then must balance those consequences of granting disclosure against the qualified First Amendment privilege. See id.

In Silkwood v. Kerr-McGee Corp., 563 F.2d 433 (10th Cir. 1977), a documentary film maker investigating the death of Karen Silkwood was subpoenaed to give a deposition in a civil rights suit brought by Silkwood's estate against Silkwood's former employer. During pretrial proceedings the district court denied the non-party, film maker's motion for a protective order. At the deposition, the film maker refused to disclose information he felt was confidential. The Silkwood Court found that the documentary film maker could claim the reporter's privilege and seek protective relief, even though he was not a salaried newspaper reporter. The court remanded the case to the district court to determine whether the privilege shielded disclosure, by applying a four factor balancing test: 1) whether the party seeking information has independently attempted to obtain the information elsewhere and has been unsuccessful; 2) whether the information goes to the heart of the matter; 3) whether the information is relevant; 4) the type of controversy. Id. at 438; see also Grandbouche v. Clancy, 825 F.2d 1463, 1466 (10th Cir. 1987) (discussing the four-factor balancing test in the context of a First Amendment right of assembly privilege to not disclose information).

The United States District Court for the District of Colorado applied Silkwood's four-factor test in Re/Max Int'l Inc. v. Century 21 Real Estate Corp., 846 F. Supp. 910 (D. Colo. 1994). Century 21 brought a variety of claims, including unfair competition, based upon Re/Max's nationwide advertising campaign. A local newspaper published an article discussing Re/Max's challenge to Century 21 to determine who was the best real estate company. Century 21 subpoenaed the reporter merely to authenticate statements appearing in the article. The Court quashed the subpoena because Century 21 failed to show the information sought was substantially relevant to a central issue in the case, and that the information could not be obtained from other reasonable sources. The evidence sought from the reporter -- to confirm that published statements had been uttered by a previous witness in the case, to impeach his deposition testimony -- was deemed not centrally relevant and was also cumulative of other evidence in the record.

The Tenth Circuit affirmed the United States District Court for the District of Colorado's ruling granting the reporters' motion to quash subpoena in Donohue v. Hoey, 109 Fed. Appx. 340 (10th Cir. 2004). Applying Silkwood, the "the district court made the express 'finding and conclusion that the plaintiffs have failed to make the showing necessary to overcome the privilege relied on by the motions.'" Id. at 354 (citing Mar. 19, 2002, Order). The Tenth Circuit affirmed the district court's order, finding that the plaintiffs failed to "explain how the district court's application of Silkwood was an abuse of discretion". Id.