II. Authority for and source of the right

The reporter's privilege in the Second Circuit was developed before Branzburg v. Hayes. The most influential pre-Branzburg case in the Second Circuit was Garland v. Torre, 259 F.2d 545 (2d Cir.), cert. denied, 358 U.S. 910 (1958). In Garland, the Second Circuit developed a three-part test regarding disclosure of both confidential and non-confidential information: a litigant must make a clear and specific showing that the information sought is (1) highly material and relevant to the underlying claim; (2) necessary or critical to maintenance of the claim (the "heart of the claim" requirement); and (3) unavailable from alternative sources (the "exhaustion" requirement).

The Garland test still applies in the Second Circuit and some other jurisdictions (See 23 Wright & Miller, Federal Practice & Procedure §5426 at 788 and n. 41 (noting that the Third Circuit, Fourth Circuit, Ninth Circuit, D.C. Circuit, District Court of Nevada, and other courts have adopted the Garland test)) when the subpoenaing party in a civil or criminal case seeks confidential information. United States v. Burke, 700 F.2d 70 (2d. Cir), cert. denied, 464 U.S. 816 (1983). The Burke court derived this test from the post-Branzburg cases Baker v. F & F Investment, 470 F.2d 778, 783-85 (2d Cir.), aff'g 339 F. Supp. 942 (S.D.N.Y. 1972), cert. denied, 411 U.S. 966 (1973) and In re Petroleum Products Antitrust Litigation, 680 F.2d 5, 7-8 (2d Cir. 1982) (per curiam). To compel disclosure of non-confidential information, litigants must demonstrate that the information is: "(1) of likely relevance; (2) to a significant issue in the case; and (3) is not reasonably obtainable from other available sources." Gonzales v. National Broadcasting Co., 194 F.3d 29, 36 (2d Cir. 1999).