I. Introduction: History & Background

The Arizona legislature has enacted two statutes that protect reporters from the compelled disclosure of unpublished notes, outtakes and other journalistic work product. First, A.R.S. § 12-2237 (the "Arizona Shield Law") shields journalists from compelled disclosure of confidential sources. Illustratively, the Arizona Superior Court upheld a reporter's right not to produce to a grand jury notes and tape-recorded conversations with an at-large serial arsonist. In re Hibberd, 262 GJ 75, Feb. 26, 2001. While the unpublished decision enforced the Arizona Shield Law, the statute has been construed to apply to confidential information only.

Second, A.R.S. § 12-2214 (the "Arizona Media Subpoena Law") imposes a number of requirements on subpoenas directed to journalists and news organizations. Under the statute, a media subpoena is invalid unless accompanied by an affidavit setting forth six specific averments. The statute applies to civil and criminal subpoenas, but not grand jury subpoenas. A.R.S. § 12-2214(A), (D). It applies to confidential and non-confidential information. Among other things, it forces litigants to describe all efforts they have taken to secure the requested information elsewhere. There is scant case law interpreting the Arizona Shield Law and the Arizona Media Subpoena Law.

In addition to these protections, reporters in the Ninth Circuit enjoy a strong First Amendment privilege against third-party discovery of published and non-published journalistic work product. See Shoen v. Shoen, 48 F.3d 412 (9th Cir. 1995). The First Amendment privilege applies in civil and criminal proceedings. Id.