H. Media as a party

In West Virginia, the privilege is applied differently to libel cases (especially where a media entity is a party), and non-libel cases. The important distinction does not appear to be based solely on the reporter or media entity's status as a party-defendant, but is based on whether the claim made is one for libel. Presumably, where a reporter's published work has led to a libel claim, even where the reporter is not made a party-defendant to the lawsuit, a lower level of protection is applied. In distinguishing libel cases, the Hudok court compared the application of the qualified privilege in different types of proceedings, holding that the reporter's privilege "will yield in proceedings before a grand jury where the reporter has personal knowledge or is aware of confidential sources that bear on the criminal investigation," but in civil cases, the privilege will be "more vigorously applied . . . except [to] those in the libel area." The basis for the foregoing was the Hudok court's reliance on the case of Zerilli v. Smith, 211 U.S.App.D.C. 116, 123, 656 F.2d 705, 712 (1981), where the court "recognized the distinction between civil actions in which the reporter is a party and those in which he is not. Where the reporter is a party, and particularly in a libel action, 'the equities weigh somewhat more heavily in favor of disclosure.' 211 U.S.App.D.C. at 125, 656 F.2d at 714." Thus, it appears that although the reporter's qualified privilege still applies in libel cases, resisting a subpoena in such cases is more difficult than in cases where the media is not a party to the case, because "the equities weigh somewhat more heavily in favor of disclosure."