Survey documents subpoena burden on media

From the Spring 2003 issue of The News Media & The Law, page 22.

By Wendy Tannenbaum

News organizations around the country consider subpoenas a serious burden on their time and resources, according to the results of a survey released in May by The Reporters Committee for Freedom of the Press. The survey, which documents the effects of subpoenas served on journalists in 2001, is the last in a three-part series that analyzed data every other year starting in 1997.

Three hundred nineteen news organizations responded to the survey. Those who provided written commentary — 169 newsrooms — agreed almost unanimously that subpoenas consume money and time that should be used gathering news.

“Mainly they’re time-consuming,” lamented one news director who preferred to remain anonymous. “I had one [subpoena] that needed legal counsel and took me away from my daily duties. They’re a headache!”

Other respondents reported that a single subpoena required anywhere from 30 minutes to six hours of a newsperson’s time. Dollar estimates per subpoena ran into the thousands for some respondents, especially in instances where responding to a subpoena required legal representation.

“It takes several hours to answer each subpoena — from archive search to dubbing,” reported Paul Lewis of WTIC-TV in Hartford, Conn. “We bill whoever asks $250-$500 depending on [the] extent of the subpoena. We sometimes do get paid!”

All together, the 319 journalists and media attorneys who provided data for the report received 823 subpoenas in 2001. One hundred forty-two respondents — or 45 percent — reported receiving at least one subpoena.

The average number of subpoenas received by television stations in 2001 was 7.7. Newspapers received an average of 0.7 subpoenas. The disproportionate share of subpoenas served on television stations is consistent with previous survey results.

One broadcaster received 53 subpoenas. Two other broadcasters received more than 40 subpoenas during the year. The print outlet that received the most subpoenas received 15.

A previous three-part report studied the effects of subpoenas in 1989, 1991, and 1993. The biennial surveys began in an effort to document the negative impact of increasing numbers of subpoenas on the media. The reports are intended to aid attorneys, judges and legislators who are called upon to make decisions about the use of subpoenas against journalists.

A questionnaire sent to news organizations in January 2002 asked them to report the number of subpoenas received in 2001 and how those subpoenas were resolved. The Reporters Committee sent 2,300 surveys to television stations and newspapers, and received 319 responses, for a 14 percent response rate. The response rate for previous editions was higher; in 1999, 19 percent of news organizations that were sent a survey responded, and in 1997, 29 percent responded.

Criminal proceedings — criminal trials, investigations or grand jury proceedings — generated the most subpoenas in 2001. Subpoenas issued in criminal proceedings accounted for 56 percent (484) of the reported 823 subpoenas overall.

“Most subpoenas seek video and audio related to crime,” reported a Kentucky broadcaster, whose news outlet fit the trend in this regard.

Because high-profile crime events are often covered more than once, some criminal subpoenas can be especially burdensome.

“Some stories have run in our newscasts over 400 times,” said a broadcaster in Sarasota, Fla. A murder in that city that went to trial in 2001 required a “massive” effort on the part of the station to respond to a subpoena issued in the case.

The majority of subpoenas issued to media outlets in 2001 arose in state court. Ninety-nine percent were described as being served upon the media as “third parties” to the litigation.

Some respondents noted that photographs of accident scenes seemed to prompt the most subpoenas. As a result, some — such as The Advocate in Baton Rouge, La., and The Courier-Tribune in Asheboro, N.C. — have instituted policies instructing employees not to save photos of accidents.

“We do not keep photos of wrecks or other assignments that are not actually published,” wrote Ray Criscoe of the Courier-Tribune. “And we have been instructed by our corporate lawyer to destroy notes of stories rather than save them.”

Other respondents similarly reported that the threat of subpoenas or the receipt of subpoenas had affected newsroom policies regarding the retention of notes or videotape, or the use of confidential sources. Some respondents described institutional policies on these topics, and some news organizations even promulgated formal, written policies that reporters and editors were expected to follow at all times. Fifteen percent (49) of the respondents said their newsroom policies had changed to address the threat of subpoenas.

Comments from respondents revealed that many news organizations, both print and broadcast, achieved success in negotiating the withdrawal or narrowing of subpoena requests simply by contacting the attorneys who had demanded the information. Such negotiations usually consisted of informing those attorneys of the existence of state shield laws that protect journalists’ materials from compelled disclosure, making an offer to partially comply by providing previously published materials only, or agreeing to verify that published materials were accurate.

“I personally call each attorney who subpoenas material to explain to him or her what we have available and what we will comply with. Occasionally an attorney won’t talk to me,” said Roger Gadley of KMPH-TV in Fresno, Calif.

“There was one instance in mid-2001 where attorneys threatened to seek a subpoena for one of our reporter’s notes in a case that was before a grand jury. Our attorney convinced them to drop the idea before it even entered the legal system,” reported Phil Haslanger of The Capital Times in Madison, Wis.

Surprisingly, news organizations in states that have a shield law reported receiving more subpoenas on average than those in nonshield law states. In 2001, 31 states and the District of Columbia had shield laws. News outlets in shield law states received an average of 3.1 subpoenas per organization; in non-shield law states, the average was 1.7 subpoenas per outlet.

Nevertheless, the responses from media organizations suggest that shield laws did make a difference in 2001 in whether a subpoena was quashed. The quash rate for shield law states was 22 percent, compared to 5 percent in nonshield law states.

“I believe our state law governing payment for materials and affording protection for both confidential and non-confidential unpublished material is tremendously helpful,” said Linda Lightfoot, executive editor of the Advocate in Baton Rouge, La. She also said that on the rare occasion reporters for her paper use confidential sources, “the source is fully briefed on our shield law provisions.”

None of the survey respondents reported suffering court sanctions for refusing to comply with a subpoena. Nevertheless, the year 2001 saw the longest jailing of a journalist in U.S. history. In July 2001, freelance book author Vanessa Leggett went to jail for refusing to turn over information she had collected while working on a book about a murder in Texas. Leggett spent 168 days in jail and was released only when the session of the grand jury that subpoenaed her expired.

Comments regarding the burden that subpoenas place on news organizations revealed a sense of frustration with attorneys and investigators who serve unnecessary subpoenas on journalists without recognizing the work each subpoena requires.

Kay Lain of WGHP-TV in High Point, S.C., explained that each request involves “archive searches, locating tape, viewing tape and finding footage,” plus “paperwork to have [a] copy of [the] tape made,” time for drafting a cover letter and official declaration for the court, conversations with the station’s legal department, as well as discussions with the requesting party. All in all, the process takes “several hours,” Lain said.

“In one case, because the attorney asked for material on an old crime, the [research and dubbing] bill was $650,” wrote Roger Gadley of KMPH-TV in Fresno, Calif. “Much of the tape was stories in which file tape was used, so he got the bit of silent video over and over again. Most attorneys don’t know what they are asking for.”

John M. Humenik in Davenport, Iowa, said that at his newspaper, the Quad-City Times, “Each [subpoena] case involved defense attorneys unfamiliar with press practices or on a fishing expedition for a pre-trial venue motion.”

Several survey respondents voiced their view that resisting subpoenas on a consistent basis is the best way to avoid them. These respondents felt that aggressive approaches to subpoenas will result not only in subpoenas being quashed, but also will serve to deter future subpoenas.

“We had none this year, but we’ve taken a firm stance: If you want it, subpoena . . . and we’ll fight the subpoena, even for broadcast material. We just say ‘no,'” said Al Aamodt of WDAY-TV in Fargo, N.D.

And Thomas Kearney of The Keene Sentinal in Keene, N.H., wrote: “Our experience: If you fight subpoenas effectively and intelligently, they arrive far less frequently.”