VI. Substantive law on contesting subpoenas

In civil cases, the Fifth Circuit has recognized a qualified privilege for reporters. Miller v. Transamerican Press, Inc., 621 F.2d 721, 723, as modified, 628 F.2d 932 (5th Cir. 1980); In re Selcraig, 705 F.2d 789, 792 (5th Cir. 1983). This privilege can be overcome only if the party seeking the information provides substantial evidence showing that the information is relevant, cannot be obtained by alternative means, and has a compelling interest in obtaining it. Miller, 621 F.2d at 726.

In Miller, a libel case, the court held that the reporter's privilege had been overcome because the plaintiff demonstrated that learning the identity of the confidential sources was the only way he could prove his claim of malice. Miller, 621 F.2d at 726. In Selcraig, a civil case in which the media was not a party, the court found that the party serving the subpoena had not demonstrated that the identity of a reporter's confidential sources was necessary to the presentation of the plaintiff's civil rights claim. In re Selcraig, 705 F.2d 789, 797 (5th Cir. 1983). The court reasoned that the identity of the sources would only be necessary if the plaintiff succeeded in proving a prima facie case for liability. Id. at 798.

The Fifth Circuit has not ruled on whether a reporter's privilege exists with regard to non-confidential sources of information in civil cases. However, in a footnote to Pressey v. Patterson, 898 F.2d 1018 (5th Cir. 1990), the court suggested that had the question been before it, it would have reversed the trial court's application of the privilege to tape recorded interviews with a non-confidential source. Id. at 1022 n.4. Similarly, Smith recognized that "the existence of a confidential relationship that the law should foster is critical to the establishment of a privilege," and that the Fifth Circuit has "never recognized a privilege for reporters not to reveal confidential information." United States v. Smith, 135 F.3d 963, 972 (5th Cir. 1998). Before Smith was decided, district courts had reached different conclusions regarding the use of the reporter's privilege to protect non-confidential sources. In De La Paz v. Henry's Diner, the court held that no privilege existed for tape recorded interviews with the defendants in a suit filed for negligence, defamation, invasion of privacy, and other claims. 946 F. Supp. 484 (N.D. Tex. 1996). In contrast, the district court for the Southern District of Mississippi held that the privilege applied and that the party seeking the information had not overcome the privilege because the subpoenaed testimony was not relevant and necessary to her motion for summary judgment. Brinston v. Dunn, 919 F. Supp. 240, 244 (S.D. Miss. 1996).

Finally, the Fifth Circuit has construed the Supreme Court's holding in Branzburg v. Hayes, 408 U.S. 665 (1972), to preclude application of a qualified First Amendment reporter's privilege against subpoenas seeking non-confidential sources in grand jury proceedings and criminal cases. In Smith, the Fifth Circuit read Branzburg to preclude assertion of a reporter's privilege when a journalist is subpoenaed to testify before a grand jury, and held that the public interests at issue in the criminal trial context were no less compelling than those at stake in the grand jury setting. United States v. Smith, 135 F.3d 963, 970-71 (1998). In so doing, it reversed the lower court's decision to quash a subpoena for videos of a reporter interviewing a suspected arsonist. Citing Branzburg, the court concluded that only when grand jury process is not exercised in good faith may the press receive protection for non-confidential information that is subpoenaed in a criminal case. Id. at 969, 971.