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10th Circuit

Reporter's Privilege Compendium

Author

Thomas B. Kelley (kelleyt@ballardspahr.com; (303) 376-2410)
Steven D. Zansberg (zansbergs@ballardspahr.com; (303) 376-2409)
Malia K. Rogers (rogersmk@ballardspahr.com; (303) 299-7356)
Ballard Spahr LLP
1225 17th Street, Suite 2300

Denver, Colorado 80202
www.ballardspahr.com

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I. Introduction: History & Background

The Tenth Circuit, and the federal district courts within the circuit, has recognized a qualified reporter's privilege under the First Amendment that extends even to published information. Although the Tenth Circuit has twice articulated a four-part test to define the contours of the reporter's privilege, it has yet to apply those factors itself to a particular set of facts.

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II. Authority for and source of the right

The Tenth Circuit first formally recognized and adopted the reporter's privilege under the First Amendment following the Supreme Court's ruling in Branzburg v. Hayes, 408 U.S. 665 (1972). As a result of the Branzburg decision, the Tenth Circuit affords newsgatherers a qualified privilege under the First Amendment against revealing news sources and confidential information. See Silkwood v. Kerr-McGee Corp., 563 F.2d 433, 438 (10th Cir. 1977).  Lower court cases within the Tenth Circuit have extended the privilege to other unpublished information, including non-confidential material, and to published information.

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A. Shield law statute

B. State constitutional provision

C. Federal constitutional provision

D. Other sources

III. Scope of protection

A. Generally

The Tenth Circuit has adopted a four-part balancing test to determine when the First Amendment reporter's privilege is extant or defeated (overcome). To overcome a reporter's assertion of the privilege, a party must make a showing of strong need for the information (a showing that the information sought goes to "the heart of the matter" being litigated) and the unavailability of the information from alternative sources. See Silkwood v. Kerr-McGee Corp., 563 F.2d 433, 438 (10th Cir. 1977) (stating that the existence of the privilege "is no longer in doubt"). Application of the privilege varies among the district courts in the Circuit, with very few reported decisions from which to draw broader conclusions or trends.

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B. Absolute or qualified privilege

The Tenth Circuit has not discussed any instances where the reporter's privilege may be absolute. See Silkwood v. Kerr-McGee Corp., 563 F.2d 433, 438 (10th Cir. 1977). The Circuit has only recognized a qualified reporter's privilege. Id.

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C. Type of case

1. Civil

In civil actions, the party seeking to compel disclosure must show a particularly strong need for the privileged information (both relevancy and that the material "goes to the heart of the matter") and an inability to obtain the information from another source (a requirement on the party seeking the information to first exhaust those alternative sources). See Silkwood v. Kerr-McGee Corp., 563 F.2d 433, 438 (10th Cir. 1977); see also Wood v. Farmingham City, No. 2:10-cv-933-DB-PMW, 2011 U.S. Dist. LEXIS 133940, *8 (D. Utah Nov. 21, 2011) (stating “there is a heightened requirement of demonstrating need for the information in a civil case, as opposed to a criminal case, because a criminal defendant’s constitutional rights are not implicated in a civil case” (citing as an example, Altemose Constr. Co. v. Bldg. & Constr. Trades Council of Phila., 443 F. Supp. 489, 491 (E.D. Pa. 1977))). The court then must balance those consequences of granting disclosure against the qualified First Amendment privilege. See Silkwood, 563 F.2d at 438.

In Silkwood v. Kerr-McGee Corp., 563 F.2d 433 (10th Cir. 1977), a documentary film maker investigating the death of Karen Silkwood was subpoenaed to give a deposition in a civil rights suit brought by Silkwood's estate against Silkwood's former employer. During pretrial proceedings the district court denied the non-party, film maker's motion for a protective order. At the deposition, the film maker refused to disclose information he felt was confidential. The Silkwood Court found that the documentary film maker could claim the reporter's privilege and seek protective relief, even though he was not a salaried newspaper reporter. The court remanded the case to the district court to determine whether the privilege shielded disclosure, by applying a four factor balancing test: 1) whether the party seeking information has independently attempted to obtain the information elsewhere and has been unsuccessful; 2) whether the information goes to the heart of the matter; 3) whether the information is relevant; 4) the type of controversy. Id. at 438; see also Grandbouche v. Clancy, 825 F.2d 1463, 1466 (10th Cir. 1987) (discussing the four-factor balancing test in the context of a First Amendment right of assembly privilege to not disclose information).

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 deemed not centrally relevant and was also cumulative of other evidence in the record.

In contrast, in an unpublished decision of the United States District Court for the District of Kansas, the court held that, on balance, the Silkwood factors supported testimony by a nonparty reporter to confirm the validity and authentication of published statements.  Thomas v. City of Wichita, No. 13-1040-CM, 2014 U.S. Dist. LEXIS 122476 (D. Kan. Sept. 3, 2014).  In Thomas, the plaintiff alleged he was unlawfully arrested after attempting to warn firemen of various gas and electrical lines during a fire at an industrial complex at which the plaintiff leased commercial space.  The firemen justified the arrest arguing the plaintiff refused to stay back and ultimately assaulted an officer.  A news article covering the fire and this altercation was subsequently published that contained a statement made by the plaintiff that supported defendants’ description of the events.  While the parties stipulated to limit questioning to an affidavit provided by the reporter, the court discussed the merits of the motion and held that Silkwood supported disclosure because the reporter was the only person who could testify as to the validity of the published statement, and that the statement went to the heart of the plaintiff’s claims and the defendants’ defenses.  The court also noted that while the Kansas statutory journalist privilege extended protection to such non-confidential information, the Tenth Circuit has yet to rule on whether the federal privilege is equally broad.

The Tenth Circuit affirmed the United States District Court for the District of Colorado's ruling granting the reporters' motion to quash subpoena in Donohue v. Hoey, 109 Fed. Appx. 340 (10th Cir. 2004). Applying Silkwood, the "the district court made the express 'finding and conclusion that the plaintiffs have failed to make the showing necessary to overcome the privilege relied on by the motions.'" Id. at 354 (citing Mar. 19, 2002, Order). The Tenth Circuit affirmed the district court's order, finding that the plaintiffs failed to "explain how the district court's application of Silkwood was an abuse of discretion". Id.

In the unpublished decision of Johnson v. Sch. Dist. No. 1, the United States District Court for the District of Colorado applied Silkwood and found that while the information sought from the nonparty reporter was relevant to a central issue in the case, the plaintiff failed to demonstrate that the information could not be obtained from other available sources.  No. 12-cv-02950-MSK-MEH, 2014 U.S. Dist. LEXIS 23620 (D. Colo. Feb. 25, 2014).  In Johnson, the plaintiff school teacher alleged adverse employment actions by the school district and its board of education after the plaintiff testified before the Colorado legislature opposing legislation the defendants supported.  The local newspaper published a column containing statements that, according to the plaintiff, were not only factually inaccurate, but provided to the reporter by the defendants’ employees in retaliation for her exercise of her First Amendment rights.  The plaintiff sought the identities of the reporter’s sources to prove the defendants’ motivations and show a pattern of retaliatory behavior.  The court determined that, with the exception of one of the published statements, the information in the column reflected the reporter’s opinion derived from legally obtained records, interviews with other individuals, and being present at the plaintiff’s testimony before the legislature.  With regard to one particular statement, the court determined that the source’s identity was central to the plaintiff’s claims and described the reporter as a “first hand witness.”  However, because the plaintiff failed to demonstrate that she exhausted other sources to obtain this information, the court granted the reporter’s motion to quash.

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2. Criminal

The United States District Court for the District of Kansas has applied the reporter's privilege to a criminal case. In United States v. Foote, 30 Media L. Rep. 2469, 2002 WL 1822407 (D. Kan. Aug. 8, 2002), the defendant was accused of trafficking and attempted trafficking in counterfeit trademark merchandise. The government issued a subpoena to a reporter who had written two articles about the seizing of the alleged counterfeit merchandise, and sales of counterfeit merchandise, in which he quoted or attributed numerous statements to the defendant. Id. at *1. The court stated that "[a]lthough Silkwood was decided in the context of civil litigation, the Court sees no legally-principled reason for drawing a distinction between civil and criminal cases when considering whether the reporter's interest in confidentiality should yield to the moving party's need for probative evidence." Id. at *2. Applying the Silkwood balancing test, the Foote Court denied the reporter's motion to quash subpoena. The court found that the reporter "appears to be the only person who can confirm that the statements published were made by Defendant and thus the only source of the information sought[,]" and that the "alleged admissions" made by the Defendant in the published article "are critical to the government's prosecution as they aid in establishing Defendant's knowledge and intent, which are elements that must be proven". Id. at *2-3.

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3. Grand jury

In an unpublished decision, the United States District Court for the District of Colorado quashed a grand jury subpoena that had been issued on an UPI reporter as part of a federal investigation to determine whether a particular Secret Service agent had "leaked" a photograph obtained from the home of John Hinckley's parents to the press. In re Grand Jury Subpoenas, 8 Media L. Rptr. (BNA) 1418, 1419 (D. Colo. 1982). Although the District Court did not mention the Silkwood ruling, it found that the information sought did not go "to the heart of any pending criminal investigation," and therefore did not overcome the reporter's First Amendment privilege.

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D. Information and/or identity of source

In In re Grand Jury Subpoenas, 8 Media L. Rptr. (BNA) 1418, 1419 (D. Colo. 1982), the United States District Court for the District of Colorado quashed a grand jury subpoena that had been issued on an UPI reporter as part of a federal investigation to determine whether a particular Secret Service agent had "leaked" a photograph obtained from the home of John Hinckley's parents to the press. The subpoena in that case sought to have the reporter divulge the identity of the source of information published.

In Bottomly v. Leucadia National Corp., 24 Media L. Rptr. (BNA) 2118 (D. Utah 1996), the United States District Court for the District of Utah quashed a subpoena on an Associated Press reporter that sought to have her disclose whether she had obtained certain published information from two attorneys in violation of a court protective order.

In the unpublished decision of Johnson v. Sch. Dist. No. 1, the United States District Court for the District of Colorado found that disclosure of the source’s identity was relevant to a central issue in the case, but quashed the motion because the plaintiff failed to demonstrate that the information could not be obtained from other available sources.  No. 12-cv-02950-MSK-MEH, 2014 U.S. Dist. LEXIS 23620 (D. Colo. Feb. 25, 2014).  In Johnson, the plaintiff school teacher alleged adverse employment actions by the school district and its board of education after the plaintiff testified before the Colorado legislature opposing legislation the defendants supported.  The local newspaper published a column containing statements that, according to the plaintiff, were not only factually inaccurate, but provided to the reporter by the defendants’ employees in retaliation for her exercise of her First Amendment rights.  The plaintiff sought the identities of the reporter’s sources to prove the defendants’ motivations and show a pattern of retaliatory behavior.  The court determined that, with the exception of one of the published statements, the information in the column reflected the reporter’s opinion derived from legally obtained records, interviews with other individuals, and being present at the plaintiff’s testimony before the legislature.  With regard to one particular statement, the court determined that the source’s identity was central to the plaintiff’s claims and described the reporter as a “first hand witness.”  However, because the plaintiff failed to demonstrate that she exhausted other sources to obtain this information, the court granted the reporter’s motion to quash.

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E. Confidential and/or nonconfidential information

In Silkwood v. Kerr-McGee Corp., 563 F.2d 433 (10th Cir. 1977), a documentary film maker investigating the death of Karen Silkwood was subpoenaed to give a deposition in a suit by Silkwood's estate against Silkwood's employer for civil rights violations. The district court denied the non-party, film maker's motion for protective order during pretrial proceedings. At the deposition the film maker refused to answer any questions involving the disclosure of information he felt was confidential. The Tenth Circuit's opinion reversing and remanding recognizes that confidential information is subject to a First Amendment qualified privilege.

District Courts within the Tenth Circuit have agreed that the First Amendment privilege applies as well to non-confidential information. They have disagreed over whether the burden on a party seeking to compel testimony about or production of non-confidential information is any lower than that for a party seeking to obtain confidential information.

In United States v. Foote, No. 00-CR-20091-01-KHV, 2002 WL 1822407 (D. Kan. Aug. 8, 2002), the United States District Court for the District of Kansas denied the non-party reporter's motion to quash subpoena. The court extended the reporter's privilege to non-confidential information. Applying the Silkwood balancing factors, the court found that the government "has made a sufficient showing regarding the relevancy, need and nature of the proposed testimony to defeat [the reporter's] Motion to Quash." The court noted that it was unable to apply the Silkwood balancing test to specific testimony from the reporter that may be privileged in nature, "[w]ithout knowing the specific information that will be sought." Id. at *3.

In Re/Max Int'l v. Century 21 Real Estate Corp., 846 F. Supp. 910, 911 (D. Colo. 1994) (Babcock, J.), the United States District Court for the District of Colorado held that the First Amendment reporter's privilege extends to non-confidential information (quoting Loadholtz v. Fields, 389 F. Supp. 1299, 1302-03 (M.D. Fla. 1975)). Where the non-confidential information was found not to be centrally relevant to the party's claim (because it was intended to be used only for impeachment purposes), the privilege was not overcome.

In Weathers v. American Family Mut. Ins. Co., 17 Med. L. Rptr. 1534 (D. Kan. 1989) and 17 Media L. Rptr. (BNA) 1846 (D. Kan. 1990), the court denied non-party reporters' motion to quash subpoena and motion for protective order. The reporters wrote an article about charges of arson brought against Weathers, the plaintiff. Later, American Family sought the reporter's 274 photographs of the plaintiff to defend against a libel claim. In the 1989 opinion, the court decided the references to the information sought were too vague to perform the Silkwood four-factor balancing test. The reporters were ordered to appear at the deposition, and during their appearance the reporters' invoked their privilege. Next, the insurance company sought to compel disclosure of the photos. In the 1990 decision, the court applied Silkwood's four-factor balancing test and found that the photographs were relevant to defend against the plaintiff's claim for physical and emotional injuries, somewhat necessary for a defense, and unavailable from any other sources. Finally, since the photographs were not confidential the court granted the motion to compel.

In another case, the District Court for Kansas again suggested that the reporter's privilege is easier to overcome when the subpoenaing party seeks only non-confidential information. See Farrington v. Crupper Transp. Co., 17 Media L. Rptr. (BNA) 1781 (D. Kan. 1990). The defendants served a subpoena duces tecum on a non-party (The Topeka Capital-Journal) for production of all photographs and negatives regarding an accident reported on by the Journal. The motion to quash and motion for protective order were denied, because the defendants showed the non-confidential photographs and negatives were relevant and otherwise unavailable, and these factors outweighed the First Amendment interest of the media to refuse to release the information.

In another case from the District Court of Kansas, the court noted that while the Kansas statutory journalist privilege extended protection to non-confidential information, the Tenth Circuit has yet to rule on whether the federal privilege is equally broad.  Thomas v. City of Wichita, No. 13-1040-CM, 2014 U.S. Dist. LEXIS 122476, at *8 (D. Kan. Sept. 3, 2014).  In Thomas, the defendants sought the nonparty reporter’s testimony as to the authentication and accuracy of an article containing a statement provided by the plaintiff that supported defendants’ defense.  The court held that Silkwood supported disclosure because the reporter was the only person who could testify as to the validity of the published statement, and because the statement went to the heart of the plaintiff’s claims and the defendants’ defenses.

In the unpublished decision of Prager v. Campbell Cty. Mem’l Hosp., the court held that a reporter’s photographs of a public event were not protected by the privilege.  No. 10-CV-0202-J, 2011 U.S. Dist. LEXIS 160591 (D. Wy. May 18, 2011).  In Prager, the plaintiff was injured in a single-car rollover in which there were no eyewitnesses and the first responders’ video of the scene had been inadvertently destroyed.  The reporter had arrived at or near the time of the first responders and took photographs of the incident.  The plaintiff alleged injuries as a result of the defendant hospital’s and doctor’s failure to diagnose a neck injury.  The court found that “given the nature of these photographs (i.e., they were not taken from a secret location or of a secret event),” and the fact that the photographs were not obtained from a source under promises of confidentiality, no privilege existed.  Id. at *5.  The court determined the same conclusion resulted even if the privilege was applicable because the photographs were relevant to the injuries that were or were not suffered by the plaintiff and no other source could provide this information.

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F. Published and/or non-published material

In Re/Max Int'l v. Century 21 Real Estate Corp., 846 F. Supp. 910, 911 (D. Colo. 1994) (Babcock, J.), the United States District Court for the District of Colorado held that the First Amendment reporter's privilege extends to non-confidential information (quoting Loadholtz v. Fields, 389 F. Supp. 1299, 1302-03 (M.D. Fla. 1975)). Where the non-confidential information was held not to be centrally relevant to the party's claim (because it was intended to be used only for impeachment purposes), the privilege was not overcome.

Similarly, in Artes-Roy v. City of Aspen, 20 Media L. Rptr. (BNA) 1647 (D. Colo. 1992), a United States Magistrate quashed a subpoena duces tecum seeking production of all files and documents concerning a published article concerning the civil litigation in which the subpoena was issued; although the court did not state whether it was deciding the matter under the First Amendment or Colorado's press shield law, it ruled that the plaintiff had not exhausted alternate sources by deposing all of the parties who were identified in the published article.

In the unpublished decision of Prager v. Campbell Cty. Mem’l Hosp., the United States District Court for the District of Wyoming held that non-published photographs of a public car accident did not qualify for protection.  No. 10-CV-0202-J, 2011 U.S. Dist. LEXIS 160591, *5 (D. Wy. May 18, 2011) (stating “these are pictures, not a reporters interview and/or source material”).

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G. Reporter's personal observations

There are no published decisions addressing this issue.  However, in the unpublished decision of Wood v. Farmingham City, the United States District Court for the District of Utah permitted the deposition testimony of a reporter who had witnessed an individual shot and killed by police.  No. 2:10-cv-933-DB-PMW, 2011 U.S. Dist. LEXIS 133940 (D. Utah Nov. 21, 2011).  In Wood, the decedent’s estate brought suit against police alleging violation of decedent’s civil rights after police shot and killed decedent in a standoff.  A reporter, along with three other individuals, witnessed the standoff from a room in a building across the street.  Deposition testimony from the other individuals suggested that the reporter had the best vantage point and benefited from the use of a camera with a zoom lens and spotting scope.  The subpoena did not request any documents or photographs be produced, only that the reporter appear for a deposition.  The court found the privilege was overcome because the reporter was the only objective witness available (the other witnesses were associated with either the police or the decedent) and because the information was highly relevant to the claims and defenses.  These factors, on balance, outweighed the heightened requirement applicable to a civil case and the fact that other sources were available.

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H. Media as a party

Although not a media case, in Grandbouche v. Clancy, 825 F.2d 1463, 1467 (10th Cir. 1987), the Tenth Circuit held that a plaintiff may invoke the First Amendment privilege in resisting discovery directed against the plaintiff's claims; "the fact that [plaintiff] has placed certain information into issue by his complaint is a factor that the trial court should consider under the Silkwood balancing test." (Note: In Silkwood v. Kerr-McGee Corp., 563 F.2d 433, 437 (10th Cir. 1977), the Tenth Circuit cited with approval Cervantes v. Time, Inc., 464 F.2d 486 (8th Cir. 1972), which was a defamation case where the media defendant successfully asserted the reporter's privilege.)

 

The Tenth Circuit avoided the opportunity to apply the federal common law privilege to defendant reporters in Brokers’ Choice of Am., Inc. v. NBC Universal, Inc., instead clarifying that the privilege being sought was that of the state statutory newsperson’s privilege.  757 F.3d 1125, 1140 n.10 (10th Cir. 2014).  Brokers’ Choice involved a hidden recording by defendant reporters (NBC Universal) of the plaintiffs’ trade seminar, which was subsequently edited and select portions broadcastPlaintiffs brought a libel suit and sought disclosure of the entirety of the hidden camera footage.  The district court denied discovery based on the Silkwood factors (see Brokers’ Choice of Am. V. NBC Universal, Inc., No. 09-cv-00717-CMA-BNB, 2010 U.S. Dist. LEXIS 11761 (D. Colo. Jan. 27, 2010)), but the Tenth Circuit reversed based solely on the state statutory newsperson’s privilege.  Id. (stating that defendant reporters “[did] not rely on the federal privilege except to the extent it also contains an inquiry into the availability of the evidence from another source”).

 

An unpublished decision of the United States District Court for the District of New Mexico held that there is no First Amendment privilege for communications amongst reporters, but found the privilege protected defendant reporters’ confidential sources.  Amaya v. Bregman, No. 14-cv-0599 WJ/SMV, 2016 U.S. Dist. LEXIS 63588 (D.N.M. May 13, 2016).  In Amaya, defendant reporters were accused of violating the Federal Wiretap Act after allegedly receiving, using, and further disclosing illegally intercepted emails to and from a governor’s domain.  The defendants argued that their communications with each other and other journalists were privileged as evidence of their editorial process.  The court found no authority to support protection of the editorial process and emphasized that “[a]lthough it is not dispositive, the fact that they are Defendants, who are accused of wrongdoing, rather than undisputedly innocent non-parties [ ], is also relevant to the Grandbouche calculus.”  Id. at *22.  Ultimately, the defendant reporters were not entitled to the qualified privilege because they could not show that the disclosure would result in a chill to the First Amendment right to gather news.  Further, applying the Silkwood factors did not result in a different outcome because the plaintiffs claimed statutory and punitive damages, which required a showing that the defendants acted knowingly, thus the information was relevant and necessary.  The court, however, did find that the defendants were entitled to the privilege to protect their confidential sources.

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I. Defamation actions

In defamation actions, a federal court is required to apply the substantive law of the forum state, including statutory privileges. See Fed. R. Evid. 501. Accordingly, in libel cases, media defendants can invoke any applicable state shield law. See, e.g., Tilton v. Capital Cities/ABC, Inc., 95 F.3d 32, 33 (10th Cir. 1996) (affirming trial court's order denying plaintiff's motion to compel media defendants to disclose identity of confidential source) (applying Oklahoma's press shield statute); Quigley v. Rosenthal, 43 F. Supp. 2d 1163, 1173-74 (D. Colo. 1999) (granting motion to quash) (applying Colorado's press shield statute).

In defamation action where the forum state does not have a statutory shield law, media defendants must invoke the First Amendment as a basis for a claim of privilege, since the United States Constitution operates as a limitation upon the governmental actions of all courts of law, state or federal. (Note: In Silkwood v. Kerr-McGee Corp., 563 F.2d 433, 437 (10th Cir. 1977), the Tenth Circuit cited with approval Cervantes v. Time, Inc., 464 F.2d 486 (8th Cir. 1972), which was a defamation case where the media defendant successfully asserted the reporter's privilege.)

In an unreported decision, the United States District Court for the District of Kansas applied the First Amendment reporter's privilege in the context of a defamation action. In Hart v. Playboy Enter., Inc., 6 Media L. Rptr. (BNA) 2571 (D. Kan. 1981) modifying 6 Media L. Rptr. (BJNA) 2567 (D. Kan. 1980), Dennis Hart, a former drug enforcement agent, sued Playboy magazine and Frank Browning, a reporter for the magazine, for libel. After Browning conceded that certain published statements complained of by Hart were, in fact, false, the court found the identity of Browning's confidential source was central to plaintiff's libel claim (to prove actual malice) and unavailable from any other source. Accordingly, the Court granted plaintiff's motion to compel and ordered Browning to disclose his confidential source. However, the court limited the disclosure to certain individuals, and if any subpoenas were issued for the confidential source the depositions would be sealed when filed. [The plaintiff's original motion to compel had been denied until alternative sources of the information were exhausted. See Hart v. Playboy Enter., Inc., 4 Media L. Rptr. (BNA) 1616 (D. Kan. 1981).]

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IV. Who is covered

A. Statutory and case law definitions

1. Traditional news gatherers

a. Reporter

The term "newsperson," as defined in the Colorado shield law, was applied by the United States District Court for the District of Colorado in Quigley v. Rosenthal, 43 F. Supp. 2d 1163, 1173 (D. Colo. 1999). The Colorado statute defines newsperson as "any member of the mass media and any employee or independent contractor of a member of the mass media who is engaged to gather, receive, observe, process, prepare, write, or edit new information for dissemination to the public through mass media." Colo. Rev. Stat. § 13-90-119(3)(a). Mass media is defined in the statute as "any publisher of a newspaper or periodical . . ." Colo. Rev. Stat. § 13-90-119(1)(c). The court held that the Anti-Defamation League was a newsperson under the statute because it published numerous periodicals, books, and pamphlets and regularly engage in news gathering activities.

 

The United States District Court for the District of New Mexico, in an unpublished decision, held that a defendant reporter accused of disseminating allegedly stolen emails was entitled to the reporter’s privilege for the narrow purpose of protecting his confidential sources.  Amaya v. Bregman, No. 14-cv-0599 WJ/SMV, 2016 U.S. Dist. LEXIS 63588 (D.N.M. May 13, 2016).   The court stated that “the critical question in determining if a person falls within the class of persons protected by the journalist’s privilege is whether the person, at the inception of the investigatory process, had the intent to disseminate to the public the information obtained through the investigation.”  Id. at *23 n.9 (quoting Von Bulow v. Von Bulow, 811 F.2d 136, 143 (2d Cir. 1987)).

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b. Editor

While there is no case exactly on point, an unpublished decision of the United States District Court for the District of New Mexico held that there is no First Amendment privilege for the editorial process.  Amaya v. Bregman, No. 14-cv-0599 WJ/SMV, 2016 U.S. Dist. LEXIS 63588, *16 (D.N.M. May 13, 2016).  In Amaya, defendant reporters were accused of violating the Federal Wiretap Act after allegedly receiving, using, and further disclosing illegally intercepted emails to and from a governor’s domain.  The defendants argued that their communications with each other and other journalists were privileged as evidence of their editorial process.  The court found no authority to support protection of the editorial process.  Further, because the plaintiffs claimed statutory and punitive damages, which required a showing that the defendants acted knowingly, the court held that the information was relevant and necessary.  The court limited the privilege to the defendant reporters’ confidential sources.

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c. News

In Silkwood v. Kerr-McGee Corp., 563 F.2d 433, 436-37 (10th Cir. 1977), the court held that the First Amendment reporter's privilege extended to a film maker producing a documentary. The court reasoned that the film maker's purpose was to be an investigative reporter for the documentary. To support this view, the Tenth Circuit noted that the U.S. Supreme Court has not limited the privilege to newspaper reporters. Moreover, the press includes all kinds of publications which communicate to the public information and opinion.

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d. Photo journalist

There is no published case law addressing this issue. In Weathers v. American Family Mut. Ins. Co., 17 Media L. Rptr. (BNA) 1846 (D. Kan. 1990), the First Amendment privilege (although overcome) was applied to a newspaper photographer.

 

In the unpublished decision of Prager v. Campbell Cty. Mem’l Hosp., the court held that a reporter’s photographs of a public event were not protected by the privilege.  No. 10-CV-0202-J, 2011 U.S. Dist. LEXIS 160591 (D. Wy. May 18, 2011).  In Prager, the plaintiff was injured in a single-car rollover in which there were no eyewitnesses and the first responders’ video of the scene had been inadvertently destroyed.  The reporter had arrived at or near the time of the first responders and took photographs of the incident.  The plaintiff alleged injuries as a result of the defendant hospital’s and doctor’s failure to diagnose a neck injury.  The court found that “given the nature of these photographs (i.e., they were not taken from a secret location or of a secret event),” and the fact that the photographs were not obtained from a source under promises of confidentiality, no privilege existed and, even if it did, the Silkwood factors also supported disclosure.  Id. at *5.  The court distinguished Silkwood, stating “[f]urthermore, these are pictures, not a reporters interview and/or source material.”  Id. at *6.

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e. News organization/medium

In Silkwood v. Kerr-McGee Corp., 563 F.2d 433, 436-37 (10th Cir. 1977), the court held that the First Amendment reporter's privilege extended to a film maker producing a documentary.

 

In the unpublished decision of Prager v. Campbell Cty. Mem’l Hosp., the United States District Court for the District of Wyoming held that unpublished photographs of a public event do not qualify for protection.  No. 10-CV-0202-J, 2011 U.S. Dist. LEXIS 160591, *6 (D. Wy. May 18, 2011) (stating “these are pictures, not a reporters interview and/or source material”).

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2. Others, including non-traditional news gatherers

In Silkwood v. Kerr-McGee Corp., 563 F.2d 433, 436-37 (10th Cir. 1977), the court held that the First Amendment reporter's privilege extended to a film maker producing a documentary.

The United States District Court for the District of Colorado held the Anti-Defamation League was a "newsperson," because it published numerous periodicals, books, and pamphlets and regularly engage in news gathering activities. See Quigley v. Rosenthal, 43 F.Supp.2d 1163, 1173 (D. Colo. 1999). The court applied Colorado's shield law, which defines "newsperson" and "mass media," in reaching its decision. See Colo. Rev. Stat. § 13-90-119(3)(a) and (1)(c).

Although it concluded that no "journalistic" privilege applied, the United States District Court for the District of Kansas applied the Silkwood balancing test to determine whether identification of confidential sources used by two non-journalists was protected by the First Amendment. See How v. City of Baxter Springs, Kansas, No. 04-2256-JWL, 2005 U.S. Dist. LEXIS 8466, *18-19 (D. Kan. May 5, 2005). The plaintiffs, one of whom was self-employed, and the other a retired patent attorney, and neither of whom was a journalist by profession, filed a malicious prosecution lawsuit against defendants, the City of Baxter Springs, the City Clerk, and the City Attorney, based on criminal defamation actions filed by the defendants against the plaintiffs based on "letters to the editor" and "guest editorials" written by the plaintiffs and published in the Baxter Springs News. Defendants filed motions to compel the plaintiffs to disclose during their depositions certain confidential sources, and in response, plaintiffs filed motions for a protective order. The court observed that the claim of privilege was "unsupportable, factually or legally," because the plaintiffs were not journalists, but "[n]evertheless, out of an abundance of caution, applied the Silkwood test." Id. at *19. The court granted defendants' motions to compel and denied plaintiffs' motions, finding that the Silkwood factors weighed in favor of defendants because plaintiffs are the only source of the statements claimed to be false, and "the truth or veracity of plaintiffs' statements are relevant." Id.

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B. Whose privilege is it?

There is no case law addressing this issue.

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V. Procedures for issuing and contesting subpoenas

A. What subpoena server must do

1. Service of subpoena, time

Follow Federal Rules of Civil Procedure Rule 45(b). Pursuant to Rule 45(d)(2)(B), the party has 14 days to respond after service of the subpoena, or the party must respond before the time specified for compliance in the subpoena if it is less than 14 days.

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2. Deposit of security

None is required.

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3. Filing of affidavit

None is required.

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4. Judicial approval

None is required. See Fed. R. Civ. P. 45(a)(3).

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5. Service of police or other administrative subpoenas

There is no case law addressing this issue.

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B. How to Quash

See Fed. R. Civ. P. 45(d)(3):

(A) On timely motion, the court for the district where compliance is required must quash or modify a subpoena that:

(i) fails to allow a reasonable time to comply;

. . .

(iii) requires disclosure of privileged or other protected matter, if no exception or waiver applies, or

(iv) subjects a person to undue burden.

See also Fed. R. Crim P. 17(c).

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1. Contact other party first

It is always advisable to first notify the party serving a subpoena of your intent to quash it. In many cases, the attorney serving the subpoena is ignorant of the reporter's privilege and will decide not to pursue the matter once an objection is raised. Such contact also permits you to certify good faith consultation prior to filing a motion to quash (which several courts' local rules require), and to inform the court what information the party is seeking and for what purpose.

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2. Filing an objection or a notice of intent

If the subpoena duces tecum seeks only the production of records (e.g., outtakes, reporter's notes, unpublished negatives), you may serve a set of written objections, see Fed. R. Civ. P. 45(d)(2)(B), and thereby force the subpoenaing party to file a motion to compel. Written objections may also be served in response to a subpoena demanding both production of records and appearance for testimony. This mechanism postpones bringing the matter to the Court's attention and places the onus on the party serving the subpoena to go forward.

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3. File a motion to quash

a. Which court?

File in the court from which the subpoena was issued. See Fed. R. Civ. P. 45(d)(3); Fed. R. Crim. P. 17(c). If the reporter or news organization is a party to the lawsuit, it will generally not be responding to a subpoena, but will contest discovery requests through motions for protective orders pursuant to Fed. R. Civ. P. 26(c).

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b. Motion to compel

If written objections are tendered pursuant to Fed. R. Civ. P. 45(c)(2)(B) the party seeking the information may file a motion to compel compliance with the subpoena. See Federal Rules of Civil Procedure Rule 37(a).

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c. Timing

The motion must be "timely" filed, Fed. R. Civ. P. 45(d)(3)(A), or "made promptly," Fed R. Crim. P. 17(c). The motion to quash should be filed in advance of the return date on the subpoena, to permit the Court an opportunity to adjudicate the motion before the subpoena is to be enforced.

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d. Language

Typical language in a motion to quash a subpoena (in a civil case) asks the court, pursuant to Fed. R. Civ. P. 45(d)(3)(A), to quash the subpoena that has been served by the [plaintiff/defendant] upon the third-party witness __[name]__, on grounds that the subpoena requires disclosure of privileged or other protected matter and no exception or waiver applies. The motion to quash should also set forth applicable Tenth Circuit case law and should seek a protective order under Fed. R. Civ. P. 26, so that the reporter may be relieved from having to appear at the deposition, hearing, or trial, until the motion to quash is decided.

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e. Additional material

It is helpful to append to the motion all articles and/or photographs that were published about the topic of the testimony sought, in order to convince the court that the material sought is not needed, does not go to the heart of the matter being litigated and can be obtained from other readily identifiable alternative sources.

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4. In camera review

There is no case law addressing this issue.

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a. Necessity

c. Consequences of refusing

5. Briefing schedule

The schedule is set by the court.

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6. Amicus briefs

Amicus briefs are permitted on appeal.

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VI. Substantive law on contesting subpoenas

A. Burden, standard of proof

The standard for the motion to quash requires the court to balance several factors including: (1) the relevance of the evidence; (2) the necessity of the information sought; (3) whether the information is available from other sources; and, (4) the nature of the proceeding. See Silkwood v. Kerr-McGee Corp., 563 F.2d 433, 438 (10th Cir. 1977); see also Grandbouche v. Clancy, 825 F.2d 1463, 1466 (10th Cir. 1987).

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B. Elements

1. Relevance of material to case at bar

The party seeking the information must show a substantial need of information that goes "to the heart of the matter" being litigated. See Silkwood v. Kerr-McGee Corp., 563 F.2d 433, 438 (10th Cir. 1977).

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2. Material unavailable from other sources

The party seeking the information must show an inability, without undue hardship, to obtain the information by other means (from alternative sources). See Silkwood v. Kerr-McGee Corp., 563 F.2d 433, 438 (10th Cir. 1977).

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a. How exhaustive must search be?

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).  The policy underlying the privilege is “that the compelled production of a reporter’s sources or materials be a last resort because it ‘may substantially undercut the public policy favoring a free flow of information to the public that is the foundation of the privilege.’”  Johnson v. Sch. Dist. No. 1, No. 12-cv-02950-MSK-MEH, 2014 U.S. Dist. LEXIS 23620, *20-*21 (D. Colo. Feb. 25, 2014) (internal quotations and citation omitted).

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b. What proof of search does a subpoenaing party need to make?

There is no case law addressing this issue.

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c. Source is an eyewitness to a crime

There is no case law addressing this issue.

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3. Balancing of interests

The court must weigh the consequences of disclosure from denying or sustaining the subpoena with the claimed qualified First Amendment privilege. See Silkwood v. Kerr-McGee Corp., 563 F.2d 433, 438 (10th Cir. 1977).

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4. Subpoena not overbroad or unduly burdensome

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).

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5. Threat to human life

There is no case law addressing this issue.

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6. Material is not cumulative

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.

 

Compare Wood v. Farmingham City, in which the privilege was overcome despite the availability of three other sources.  No. 2:10-cv-933-DB-PMW, 2011 U.S. Dist. LEXIS 133940 (D. Utah Nov. 21, 2011).  In Wood, the decedent’s estate brought suit against police alleging violation of decedent’s civil rights after police shot and killed decedent in a standoff.  A reporter, along with three other individuals, witnessed the standoff from a room in a building across the street.  Deposition testimony from the other individuals suggested that the reporter had the best vantage point and benefited from the use of a camera with a zoom lens and spotting scope.  The subpoena did not request any documents or photographs be produced, only that the reporter appear for a deposition.  The court found the privilege was overcome because the reporter was the only objective witness available (the other witnesses were associated with either the police or the decedent) and because the information was highly relevant to the claims and defenses.  These factors, on balance, outweighed the heightened requirement applicable to a civil case and the fact that other sources were available.

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7. Civil/criminal rules of procedure

Subpoenas in criminal cases may not be overbroad or frivolous and must represent a good faith effort to identify evidence. Fed. R. Crim. P. 17(c). In civil cases, the subpoenaing party must avoid imposing undue burden or expense. Fed. R. Civ. P. 45(d)(1).

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8. Other elements

C. Waiver or limits to testimony

1. Is the privilege waivable?

Yes, a reporter should never volunteer any information to anyone, beyond what appears in the published article, after a story has been published. Any voluntary disclosure of information beyond what was published may be deemed a waiver of the privilege under the First Amendment. Cf. United States v. Bahe, 128 F.3d 1440, 1442 (10th Cir. 1997) (discussing in general waiver of testimonial privileges through voluntary disclosure).

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2. Elements of waiver

There is no case law discussing the elements of waiver.

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a. Disclosure of confidential source's name

b. Disclosure of non-confidential source's name

c. Partial disclosure of information

d. Other elements

3. Agreement to partially testify act as waiver?

There is no case law discussing the contours of waiver of the reporters privilege.

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VII. What constitutes compliance?

Ordinarily a person must first appear for his deposition and then raise any objection to the particular testimony or documentation sought. See Silkwood v. Kerr-McGee Corp., 563 F.2d 433, 437 (10th Cir. 1977). An alternative approach is to request of demand that a deposition be conducted through written interrogatories. See Fed. R. Civ. P. 31. This procedure, which was ordered to be employed by the United States District Court for the District of Colorado in Donohue v. Hoey, Civil Action No. 97-M-2595, allows the reporter's counsel to assert the privilege on a question-by-question basis and permits the Court to determine whether the privilege applies and/or is overcome prior to ordering any response be given.

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A. Newspaper articles

Newspaper articles are self-authenticating. See Fed. R. Evid. 902(6). Thus, if a party seeks to introduce articles for purposes of demonstrating that there has been significant publicity about a case (e.g., in support of motion to change venue), there is no need to have any witness authenticate that such newspaper article actually appeared in the paper.

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B. Broadcast materials

There is no case law addressing this issue.

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C. Testimony vs. affidavits

There is no published case law addressing this issue.  In the unpublished opinion of  Thomas v. City of Wichita, however, a nonparty reporter was required to testify despite providing an affidavit.  No. 13-1040-CM, 2014 U.S. Dist. LEXIS 122476 (D. Kan. Sept. 3, 2014).  In Thomas, the defendants sought the nonparty reporter’s testimony as to the authentication and accuracy of an article containing a statement provided by the plaintiff that supported defendants’ defense.  The plaintiff would not stipulate to the reporter’s affidavit, therefore, the defendants subpoenaed the reporter’s attendance at trial.  The parties ultimately stipulated to limit the questioning to what was in the reporter’s affidavit.  The court, however, proceeded to discuss the merits of the privilege and found that Silkwood supported disclosure because the reporter was the only person who could testify as to the validity of the published statement, and because the statement went to the heart of the plaintiff’s claims and the defendants’ defenses.

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D. Non-compliance remedies

There is no case law addressing these specific issues in the context of a reporter's assertion of privilege. However, the federal rules of criminal and civil procedure expressly provide for contempt sanctions to be entered against any person who refuses to comply with a court order, including a subpoena. See Fed. R. Civ. P. 45(g); Fed. R. Crim. P. 17(g).

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1. Civil contempt

a. Fines

b. Jail

2. Criminal contempt

3. Other remedies

VIII. Appealing

There is no case law discussing any of these points in the context of an assertion of reporter's privilege; see generally Fed. R. App. P. 8. Generally, a non-party witness may not appeal an order denying a motion to quash or compelling production of records; an entry of an order holding the witness in contempt of court is deemed a "final" (appealable) order. Of course, counsel should seek to obtain a stay of any contempt sanctions pending the appeal (which is not a foregone conclusion).

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A. Timing

1. Interlocutory appeals

When the media is a party in the district court action, 28 U.S.C. § 1292(b) grants discretion in the Court of Appeals to hear an interlocutory appeal based upon a finding that the decision below involves a controlling point of law as to which there is a substantial ground for difference of opinion and that an immediate appeal may advance the termination of the litigation. (There is case law in other Circuits granting such interlocutory appeals in reporter's privilege cases).

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2. Expedited appeals

Appeals can be expedited under 28 U.S.C. 1657 for "good cause."

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B. Procedure

1. To whom is the appeal made?

To the United States Court of Appeals for the Tenth Circuit.

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2. Stays pending appeal

Rule 8 of the Federal Rules of Appellate Procedure allows a party to move for a stay pending appeal and outlines the procedures that must be followed in requesting a stay.

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3. Nature of appeal

Before a holding of contempt, an interlocutory appeal under 28 U.S.C. 1657 may be available but is discretionary. After a contempt holding, the appeal is by right.

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4. Standard of review

The Tenth Circuit reviews questions involving the interpretation and application of constitutional (First Amendment) provisions by applying the doctrine of "independent appellate review." See, e.g., Melton v. City of Oklahoma City, 928 F.2d 920, 927-28 (10th Cir. 1991)

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5. Addressing mootness questions

There is no case law addressing this issue.

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6. Relief

An appeals court may affirm, dissolve or remand a finding of contempt and may affirm, deny or remand an order compelling disclosure.

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IX. Other issues

A. Newsroom searches

The Tenth Circuit has held that the Privacy Protection Act, 42 U.S.C. § 2000aa, does not provide a cause of action against municipal employees in their individual capacities. Davis v. Gracey, 111 F.3d 1472, 1482 (10th Cir. 1997).   Further, liability under the Privacy Protection Act only extends to those who direct, control, or participate in the search or seizure.  Mink v. Suthers, 482 F.3d 1244 (10th Cir. 2007) (finding no liability attached to the deputy district attorney for reviewing the warrant application).

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B. Separation orders

There is no case law addressing this issue.

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C. Third-party subpoenas

There is no case law addressing this issue.

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D. The source's rights and interests

There is no case law addressing this issue.

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