The Ninth Circuit recognizes a qualified privilege against compelled disclosure when facts acquired by a reporter in the course of gathering the news become the target of discovery. See Shoen I, F.3d at 1292. The same qualified privilege applies for maintaining the confidentiality of sources' identities. See Farr v. Pritchess, 522 F.2d 464 (9th Cir. 1975) cert. denied 427 U.S. 912 (1976) (affirming district court's denial of reporter's habeas corpus petition, holding that the state court had a duty to enforce nondisclosure orders to protect accused person's due process rights). In grand jury cases, the Ninth Circuit, following Branzburg, subordinates the journalists' right to keep secret a source of information to the more compelling requirement that a grand jury be able to secure factual data relating to its investigation of serious criminal conduct. Id. at 467-68; see also United States v. Curtin, 2007 U.S. App. LEXIS 12110, at *55 (9th Cir. May 24, 2007) (noting that Branzburg "refused to create a First Amendment free speech and free press privilege for news reporters to protect their sources from grand jury inquiries"). There, the court applies "a limited balancing of First Amendment interests . . . only 'where a grand jury inquiry is not conducted in good faith, or where the inquiry does not involve a legitimate need of law enforcement, or has only a remote and tenuous relationship to the subject of the investigation.'" In re Grand Jury Subpoena. Joshua Wolf, 201 Fed. Appx. 430, 432 (9th Cir. 2006) (quoting See In re Grand Jury Proceedings (Scarce v. United States), 5 F.3d 397, 401 (9th Cir. 1993)).
In non-grand jury cases, in keeping with Justice Powell's concurrence in Branzburg, the Ninth Circuit requires that the claimed First Amendment privilege and the opposing need for disclosure be judicially weighed in light of the surrounding facts and a balance struck to determine where lies the paramount interest. Branzburg, 408 U.S. at 468. One recent district court opinion, however, has extended Branzburg's approach to criminal, non-jury matters, and thus established a different approach depending on whether the action is criminal or civil. See United States v. Schneider, 2003 U.S. Dist. LEXIS 27324, at *7 n.2, 10 (N.D. Cal. Nov. 18, 2003) (noting that to invoke a shield in the criminal setting "the reporter must demonstrate that the criminal investigation is proceeding in bad faith, or that the government has otherwise exhibited 'harassment of newsmen,' whereas "[i]n a civil setting, on the other hand, the press enjoys much more robust protection from compelled testimony") (quoting Branzburg, 408 U.S. at 709 (Powell, J., concurring)).