6th Cir.

F. Privacy


6th Cir.

1. To whom is the appeal made?

When a subpoena is levied by a magistrate judge the reporter, within 10 days after being served with a copy of the magistrate judge's order, may file and serve objections to the order. Fed. R. Civ. P. 72(a). The district judge to whom the case is assigned will then consider the objections and respond to any portion of the magistrate judge's order that is clearly erroneous or contrary to the law. Id. An appeal from a judgment by a magistrate judge in a civil case is addressed in the same way as an appeal from any other district court judgment. Fed. R. App. P. 3.

B. Absolute or qualified privilege

The privilege is qualified. A court faced with a claim of privilege must balance certain factors in determining whether compelled disclosure is proper.

c. News

No federal court in the Sixth Circuit has limited First Amendment protection only in contexts where the information was gathered in pursuit of news, and no federal court in the Sixth Circuit has defined "news."

The Sixth Circuit itself applied the First Amendment to bar enforcement of a civil subpoena seeking to require a newspaper to divulge the identity of an advertiser who placed a "blind ad"; consequently, it seems clear that First Amendment protection applies beyond the context of news.

a. Which court?

Every subpoena in federal court litigation identifies the name of the court under whose authority it was issued. Usually, that is the same federal court in which the litigation that spawned the subpoena is taking place, and where the trial in that litigation would be held. Where the subpoena commands compliance within the territorial district of the court where the litigation is underway, then a motion to quash should be filed with that court.

a. How exhaustive must search be?

The federal courts have not elaborated on the extent to which a subpoenaing party must exhaust alternative from other sources. Where the NLRB initiated a civil investigation of a claim of unfair labor charge against a business by subpoenaing a newspaper's advertising dept. to see if the business was responsible for a "blind" newspaper ad, the Sixth Circuit ruled that the NLRB could not overcome the newspaper's First Amendment protection because the NLRB had not tried other investigative methods first. NLRB v. Midland Daily News, 151 F.3d 472 (6th Cir. 1998).