I. Introduction: History & Background

The North Dakota statute governing the reporter's privilege is codified in N.D.C.C. § 31-01-06.2:

No person shall be required in any proceeding or hearing to disclose any information or the source of any information or hearing to disclose any information or the source of any information procured or obtained while the person was engaged in gathering, writing, photographing, or editing news and was employed by or acting for any organization engaged in publishing or broadcasting news, unless directed by an order of a district court of this state which, after hearing, finds that the failure of disclosure of such evidence will cause a miscarriage of justice.

The reporter's privilege has not been extensively litigated in North Dakota. The most recently reported case that invoked the statute was decided in 1982. In Grand Forks Herald v. District Court ex rel. Grand Forks County, the North Dakota Supreme Court ruled that the North Dakota statute governing the reporter's privilege did not require that the news source be confidential in order for the court to determine that the privilege applied. In dicta, the court speculated that the confidentiality of the information is one of the factors that district courts should consider in determining whether the disclosure of the evidence will result in a miscarriage of justice. Additional factors in determining whether disclosure would result in a miscarriage of justice were whether alternative sources of information were available to the party seeking the information and whether disclosure would create a chilling effect on First Amendment rights.

Generally, application of the reporter's privilege is subject to the discretion of the district court. In its 1982 opinion, the court emphasized that the key factor in determining protected information is whether failure to disclose the information would result in a miscarriage of justice.