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Confidential Sources and Information: 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 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the subpoena, taking into account your news organization's policy governing compliance with subpoenas and revelation of unpublished information or the names of sources.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 If the materials sought are unpublished, such as notes or outtakes, or concern confidential sources, it is unlikely that your employer has a policy to turn over those materials voluntarily.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.

Next section: Confidential Sources and Information: Separation orders