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What constitutes a waiver of the reporter’s privilege is largely unchartered territory for courts, leaving journalists with little case law to rely on when determining whether to respond to subpoenas.
This week a California federal court shed light on the scope of waiver by recognizing a journalist’s right to refuse to produce unpublished notes even after disclosing some components of her reporting. The court also held the defendant did not overcome the qualified reporter’s privilege because it did not exhaust alternative means for obtaining the requested information.
The shield law issue emerged out of a class action lawsuit filed in 2014 by the estates of 78 miners who died in a 1968 explosion at the No. 9 mine in Farmington, West Virginia. The plaintiffs sued the Consolidation Coal Company, owners of the mine, for fraud, concealment, and nondisclosure.
In 2012, Bonnie Stewart published a nonfiction book titled No. 9: The 1968 Farmington Mine Disaster. While researching the book, Stewart interviewed Lawrence Layne, a mine inspector, about the findings of his investigation into the explosion more than 40 years ago.
In September 2015, the defendants served a subpoena on Stewart, requesting a number of her documents and communications used in writing her book. Complying with a portion of the subpoena, Stewart produced more than 900 pages of documents, including e-mails between Stewart and the plaintiffs’ counsel. Stewart also handed over e-mail in which she discussed some of the interviews she conducted for the book.
However, Stewart objected to producing the requests for documents containing communications between herself and Layne, including the interview of Layne from 2009, asserting the First Amendment qualified reporter’s privilege.
The court declared the defendant could not overcome the First Amendment qualified reporter’s privilege because it failed to attempt to get the information from alternatives sources, including Layne himself. The court, quoting an earlier Ninth Circuit decision, wrote that “compelled disclosure from a journalist must be a last resort after pursuit of other opportunities has failed.”
On the waiver issue, the court concluded Stewart did not waive her privilege by complying with some of the subpoena requests. According to the court, waiver is grounded in the principle of fairness. Here, the defendant did not show that fairness required finding an implied waiver because Stewart provided the same information to both parties. The court found that waiver does not occur when a journalist releases non-prejudicial information to both parties and potentially possesses undisclosed information that helps one party.
Finally, the court stated that allowing the defendant to compel Stewart’s unpublished notes could deter authors from publishing works. Journalists often rely on the reporter’s privilege to gain trust from sources in order to disseminate important information to the public.