What to do when you are subpoenaed -- Separation orders -- Sanctions

What to do when you are subpoenaed

Receiving a subpoena does not mean the marshal will be coming to the door to arrest you. It is simply notice that you have been called to appear at a deposition or other court proceeding to answer questions or to supply certain documents.

You may not ignore a subpoena, however. If you fail to appear at the time and place specified, you could be held in contempt of court, and fined or imprisoned, or both.

If you are subpoenaed, there are certain steps you should take immediately.

Under no circumstances should you comply with the subpoena without first consulting a lawyer. It is imperative that your editor or your news organization’s legal counsel be advised as soon as a subpoena is served so a plan of action can be developed.

If you are working independently, call the Reporters Committee for assistance in locating an attorney.

If your state has a shield law, the lawyer must determine whether it applies to the information sought and to the type of proceeding involved. Even if your state does not have a shield law, state courts may have recognized some common law or constitutional privilege that will protect you.

Working with your editor, the lawyer will then recommend a strategy for handling the subpoena, taking into account your news organization’s policy governing compliance with subpoenas and revelation of unpublished information or the names of sources.

If a subpoena requests only published or broadcast material, your newspaper or station may elect to turn over these materials without dispute, as a matter of policy. If the materials sought are unpublished, such as notes or outtakes, or concern confidential sources, it is unlikely that your employer has a policy to turn over those materials voluntarily.

Every journalist should be familiar with the news organization’s policy for retaining notes and drafts. Follow the rules and do so consistently. If your news organization has no formal policy, talk to your editors about establishing one. Never destroy notes, tapes, drafts or other documents once you have been served with the subpoena.

In some situations, your news organization may not agree that sources or materials should be withheld, and may try to persuade you to reveal the information to the party issuing the subpoena. If the interests of your news organization differ from yours, it may be appropriate for you to seek separate counsel.

Separation orders

Reporters who have been subpoenaed for testimony may be subject to “separation orders” — orders that keep witnesses out of the courtroom when other witnesses are testifying. These are designed to keep witnesses from hearing and being influenced by the testimony of those other witnesses. When applied to reporters, they prevent them from covering trials or other legal proceedings. A reporter is unlikely to succeed in objecting to a separation order if the subpoena on which the order is based is upheld, although some courts have been willing to limit the order in such cases.¹⁵

Reporters who need to cover a trial and yet have their names placed on the witness list should immediately seek assistance from an attorney or call the Reporters Committee. The order must be challenged as soon as possible, not just when it is enforced.

Sanctions

If a reporter refuses to comply with a subpoena after being ordered by a court to do so, the court may impose a sanction.

The reporter may be held in contempt. Civil contempt can result in a fine or incarceration, which terminates when the reporter divulges the information sought or when the underlying proceeding is completed.

Criminal contempt may be used to punish an affront to the court, such as a reporter’s obstruction of court proceedings by refusing to testify. Criminal contempt will result in a fine and/or sentence, but unlike civil contempt, the jail sentence is for a set period of time and does not end if a reporter decides to testify.

Some state shield laws provide that reporters cannot be held in contempt for refusing to testify.

If a reporter is a party to a case, such as a defendant in a libel or privacy suit, and refuses to reveal a confidential source or unpublished information, some courts will rule that the reporter automatically loses the suit.¹⁶ A court also may prohibit the reporter or news organization from introducing evidence gathered from confidential sources. Or, the court may presume as a matter of law that the reporter never had a confidential source, whether or not this is the case. This means that the reporter may lose the suit unless he or she decides to disclose the source.

Notes:

15. See, e.g., United States v. Greer, No. 2:95-cr-72 (D. Vt. Apr. 18, 1997) (order barring reporter from hearing testimony of particular witness); Connecticut v. Kelly, No. CR-86-0052961T (Conn. Sup. Ct. Mar. 18, 1997) (order closing courtroom to press and public); Indiana ex rel. Labalme v. Madison Circuit Court, No. 48500-9702-OR-155 (Ind. Mar. 4, 1997) (order declining to overturn separation order keeping reporter out of murder trial).

16. Ayash v. Dana Farber Cancer Institute, 30 Media L. Rep. 1825 (Mass. Super. 2001).