Search the Reporter's Privilege Compendium

The search should be exhaustive, compelling disclosure from the newsgatherer should be the end, not the beginning of the inquiry. See Hart v. Playboy Enter., Inc., 6 Media L. Rptr. (BNA) 2571 (D. Kan. 1981).

There is no case law addressing this issue.

The Tenth Circuit has stated that overbroad subpoenas -- which amount to a "fishing expedition" -- will not be found to be sufficiently focused to overcome the reporter's privilege. Silkwood v. Kerr-McGee Corp., 563 F.2d 433, 437 (10th Cir. 1977). The Court has also stated that overbroad subpoenas issued under Rule 17 of the Federal Rules of Criminal Procedure will not be enforced. See United States v. Gonzalez-Acosta, 989 F.2d 384, 389 (10th Cir. 1993) (pre-trial subpoenas cannot amount to a "fishing expedition" and those seeking materials for production at trial must seek documents that are "relevant, admissible and specific"). Furthermore, a criminal defendants' subpoena will be denied if it seeks information that is cumulative of other available evidence. See United States v. Hernandez-Urista, 9 F.3d 82, 84 (10th Cir. 1993) (affirming trail court's denial of defendants' subpoena request under Fed. R. Crim P.17(b) where evidence sought had already been provided by other witnesses). When confronting a subpoena issued by a government prosecutor on a member of the news media, it is also helpful to insist that the United States Attorney comply with 28 C.F.R. 50.10 (2001).

The United States District Court for the District of Colorado applied Silkwood's four-factor test in Re/Max Int'l Inc. v. Century 21 Real Estate Corp., 846 F. Supp. 910 (D. Colo. 1994). Century 21 brought a variety of claims, including unfair competition, based upon Re/Max's nationwide advertising campaign. A local newspaper published an article discussing Re/Max's challenge to Century 21 to determine who was the best real estate company. Century 21 subpoenaed the reporter merely to authenticate statements appearing in the article. The Court quashed the subpoena because Century 21 failed to show the information sought was substantially relevant to a central issue in the case, and that the information could not be obtained from other reasonable sources. The evidence sought from the reporter -- to confirm that published statements had been uttered by a previous witness in the case, to impeach his deposition testimony -- was also deemed cumulative of other evidence in the record.