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11th Circuit

Reporter's Privilege Compendium

I. Introduction: History & Background

The Eleventh Circuit follows Fifth Circuit precedent in Miller v. Transamerican Press, Inc., 621 F.2d 721, 725 (5th Cir.) (Miller I), modified on reh'g, 628 F.2d 932 (5th Cir.1980) (per curiam) (“Miller II”), to recognize a First Amendment qualified reporter’s privilege.  The Eleventh Circuit was formed on October 1, 1981 by splitting the former Fifth Circuit, and thus Fifth Circuit decisions prior to that date are binding precedent unless overruled en bancBonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc).

A reporter’s privilege exists where a subpoena seeks the identity of a journalist's confidential source in a civil case, including a defamation case in which the reporter or media organization is a party, and the party seeking the information must demonstrate with substantial evidence that the information is relevant, not available elsewhere, and the need for the information is compelling. Miller v. Transamerican Press, Inc., 621 F.2d 721, 726, as modified, 628 F.2d 932 (5th Cir. 1980).

The Eleventh Circuit has also recognized a qualified privilege for journalists in criminal cases.  See United States v. Caporale, 806 F.2d 1487 (11th Cir. 1986).  To obtain privileged materials, a party must establish by clear and convincing evidence that the information is: (1) highly relevant; (2) necessary to the proper presentation of the case; and (3) unavailable from other sources. Id.

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II. Authority for and source of the right

Where federal jurisdiction is predicated upon the existence of a federal question, the federal law of privilege provides the rule of decision, even if the allegedly privileged material bears on a pendent state law claim.  Flynn v. Roanoke Companies Group, Inc. 2007 WL 4564113 (N. D. Ga. Dec. 21, 2007),(citing Hancock v. Hobbs, 967 F.2d 462, 467 (11th Cir.1992)); United States v. Fountain View Apartments, Inc., 2009 WL 1905046, *2 (M.D. Fla. July 1, 2009) (applying federal common law privilege in quashing subpoena seeking outtakes and reporter’s notes).

The Supreme Court's plurality decision in Branzburg v. Hayes, 408 U.S. 665, 92 S. Ct. 2646 (1972), is the source of the law in the Fifth Circuit, and hence Eleventh Circuit on the existence of a First Amendment qualified reporter's privilege.

In Miller v. Transamerican Press, Inc., a libel case, the Fifth Circuit construed Branzburg to hold that, where a reporter faces compulsory process issued by a grand jury, the First Amendment provides only a right to be free from process intended to harass. 621 F.2d 721, 725, as modified, 628 F.2d 932 (5th Cir. 1980). But, the Fifth Circuit distinguished the balance of interests in civil libel cases from that in grand jury proceedings. Id. at 725-26. Based on this distinction, Miller recognized a qualified First Amendment privilege for reporters in libel cases in which the plaintiff seeks to discover the reporter's confidential sources. Id. at 725.

The Eleventh Circuit has not recognized a common law reporter's privilege pursuant to Fed. R. Evid. 501, but some district courts have. In Flynn v. Roanoke Companies Group, Inc., 2007 WL 4564113 (N. D. Ga. Dec. 21, 2007), the district court recognized a federal common law privilege, in part because of comity with Georgia's Reporter's Shield Law, which protects nonparty journalists from disclosing information obtained in preparation of news. O.C.G.A. § 24-9-30. “The decision to refer to state law is sensible in a case like this where the overwhelming majority of claims are based on diversity jurisdiction and state law claims.”  Flynn, 2007 WL 4564113 at *3.

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A. Shield law statute

Alabama has a shield statute that provides for an absolute reporter’s privilege. Ala. Code § 12–21–142; Price v. Time, 416 F.3d 1327, 1335 (11th Cir. 2005).  The persons covered by the privilege, however, are limited to those engaged in, connected with or employed on any newspaper, radio broadcasting station or television station, while engaged in a news-gathering capacity.   The Eleventh Circuit has construed the Alabama shield law strictly, holding that it is “plain and apparent that in common usage ‘newspaper’ does not mean ‘newspaper and magazine.’” Price v. Time, 416 F.3d 1327, 1336, 1339 (11th Cir. 2005).

Florida’s evidence code contains a Reporter’s privilege at Fla. Stat. § 90.5015.  Florida upheld a common law and First Amendment reporter’s privilege in State v. Davis, 720 So. 2d 220, 222 (Fla. 1998). In McCarty v. Bankers Ins. Co., the Northern District of Florida held that the test for piercing Florida’s journalist’s privilege was virtually identical to the federal test adopted by the Eleventh Circuit. See also United States v. Fountain View Apartments, Inc., 2009 WL 1905046, *2 n.5 (M.D. Fla. July 1, 2009).

Georgia's Reporter's Shield Law protects nonparty journalists from disclosing information obtained in preparation of news. O.C.G.A. § 24-9-30.  Flynn v. Roanoke Companies Group, Inc., Nos. 1:06-cv-1809, 1:07-MD-1804, 2007 WL 4564113 (N.D. Ga. Dec. 21, 2007), recognized a federal qualified common law reporter's privilege for non-confidential sources in civil cases, noting the standards for determining the limits of the privilege are virtually identical under the federal common law as they are under the Georgia statute.

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B. State constitutional provision

State privilege defenses have full force and effect in federal court in diversity jurisdiction cases by virtue of Fed.R.Evid. 501.  Price v. Time, 416 F.3d 1327, 1336, 1339 (11th Cir. 2005).   Alabama, Florida, and Georgia are the states within the Eleventh Circuit.

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C. Federal constitutional provision

The First Amendment is the basis of the reporter’s privilege doctrine as recognized by the Fifth Circuit’s Miller decision, relying upon Branzburg v. Hayes, 408 U.S. 665, 92 S. Ct. 2646 (1972), and is still binding precedent within the Eleventh Circuit.  Price v. Time, Inc., 416 F.3d 1327 (2005).

In Branzburg, five justices agreed that the First Amendment does not protect reporters from having to testify before grand juries. Branzburg, 408 U.S. at 690. In his concurring opinion in Branzburg, however, Justice Powell left open the possibility that journalistic privilege might be warranted in certain cases involving “legitimate First Amendment interests.” Id. at 710 (Powell, J., concurring). Whether those interests exist, he wrote, depends on balancing the “freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct.” Id.

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D. Other sources

III. Scope of protection

A. Generally

In the Eleventh Circuit, the test for piercing the privilege requires the party seeking the reporter's confidential source to present: “substantial evidence[:][1] that the challenged statement was published and is both factually untrue and defamatory; [2] that reasonable efforts to discover the information from alternative sources have been made and that no other reasonable source is available; and [3] that knowledge of the identity of the informant is necessary to proper preparation and presentation of the case.” Price v. Time, Inc., 416 F.3d 1327 (2005) (quoting Miller II, 628 F.2d at 932); accord United States v. Caporale, 806 F.2d 1487, 1504 (11th Cir. 1986).

Flynn v. Roanoke Companies Group, Inc., Nos. 1:06-cv-1809, 1:07-MD-1804, 2007 WL 4564113 (N.D. Ga. Dec. 21, 2007), recognized a qualified common law reporter's privilege for non-confidential sources in civil cases.

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B. Absolute or qualified privilege

State privilege defenses have full force and effect in federal court in diversity jurisdiction cases by virtue of Fed. R. Evid. 501.  Price v. Time, 416 F.3d 1327, 1336, 1339 (11th Cir. 2005).  Thus, for diversity cases, state law governs whether the privilege is absolute or qualified.

The federal privilege as recognized by the Eleventh Circuit is a qualified one.  Price, 416 F. 3d at 1343.  It may be pierced if the party seeking the reporter’s confidential source presents: “substantial evidence[:][1] that the challenged statement was published and is both factually untrue and defamatory; [2] that reasonable efforts to discover the information from alternative sources have been made and that no other reasonable source is available; and [3] that knowledge of the identity of the informant is necessary to proper preparation and presentation of the case.” Id.

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C. Type of case

1. Civil

The Eleventh Circuit recognizes a qualified privilege for journalists which allows them to resist compelled disclosure of their professional news gathering efforts in both criminal and civil proceedings.  Price v. Time, Inc., 416 F.3d 1327 (11th Cir. 2005) (applying privilege and finding that plaintiff had failed to exhaust alternative sources for information sought); Miller I, 621 F.2d 727 (recognizing the reporter's privilege in a defamation case).  (Fifth Circuit decisions prior to October 1, 1981 are binding precedent unless overruled en bancBonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc).)

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2. Criminal

The Eleventh Circuit has “recognize[d] a qualified privilege for journalists,” in criminal proceedings, “allowing them to resist compelled disclosure of their professional news gathering efforts.”  United States v. Capers, 708 F.3d 1286, 1303 (11th Cir. 2013) (criminal drug possession trial).  Information may only be compelled from a reporter claiming the privilege if the party requesting the information can show: (1) that it is highly relevant, (2) necessary to the proper presentation of the case, and (3) unavailable from other sources.  United States v. Caporale, 806 F.2d 1487, 1504 (11th Cir. 1986) (applying privilege in criminal racketeering trial).

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3. Grand jury

D. Information and/or identity of source

E. Confidential and/or nonconfidential information

Although the Eleventh Circuit has only expressly addressed protections for confidential information or sources, it has affirmed a district court’s decision quashing a subpoena to a media company for non-confidential video footage. United States v. Capers, 708 F.3d 1286, 1302-03 (11th Cir. 2013).  In addition, federal district courts throughout the Eleventh Circuit have held that the test for overcoming the privilege remains the same even if the information was not obtained from a confidential source.  See, e.g., Abrams v. Tuberville, 2013 WL 12244457, *1 n.2 (M.D. Ala. Aug. 15, 2013) (applying Caporale test to information about a named source); United States v. Fountain View Apartments, Inc., 2009 WL 1905046, *2 (M.D. Fla. July 1, 2009) (“[Caporale] standard applies even when the source of the information provided to the reporter is not confidential.”); Flynn v. Roanoke Companies Group, Inc., 2007 WL 4564113 (N. D. Ga. Dec. 21, 2007) (recognizing a federal common law reporter’s privilege for non-confidential material); United States v. Blanton, 534 F. Supp. 295, 297 (S.D. Fla. 1982) (“Although no confidential source or information is involved, this distinction is irrelevant to the chilling effect enforcement of the subpoena would have on the flow of information to the press and public.”); Loadholtz v. Fields, 389 F. Supp. 1299, 1301-02 (M.D. Fla. 1975) (recognizing that in a civil case the public's interest in the journalist's privilege often outweighs the private interest in compelled disclosure).

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F. Published and/or non-published material

In United States v. Fountain View Apartments, Inc., 2009 WL 1905046, *2 (M.D. Fla. July 1, 2009), the court subdivided the non-published materials into outtakes and notes related and not related to the parties.  It held that those materials that were not related to the parties were not relevant and that while outtakes of parties may be relevant, this factor alone was too speculative to justify compelled disclosure.  Accordingly, the court quashed the subpoena.

However, in United States v. Vasquez-Ortiz, 2008 WL 11449045 (N.D. Ga. Jan. 23, 2008), a Georgia district court declined to reach the issue of whether the First Amendment reporter's privilege shields a television station’s outtakes, because it found that the person seeking the outtakes had overcome any such privilege in any event.  The court, however, noted that other jurisdictions have held that outtakes are not protected.

Sitting in diversity, the Southern District of Georgia applied Georgia’s privilege to quash, in part, a subpoena for documents and unedited footage from the interview of a party, requiring the footage to be submitted for in camera inspection.  Woods v. Georgia Pacific Corp., 2008 WL 11350078 (S.D. Ga. Nov. 4, 2008).

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G. Reporter's personal observations

In United States v. Fountain View Apartments, Inc., 2009 WL 1905046, *2 (M.D. Fla. July 1, 2009), the court held that the reporter’s notes, drafts of scripts, and what the editor and reporter thought of interviewees’ reactions were not relevant to the case, and therefore were protected.

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H. Media as a party

A reporter’s privilege exists where a subpoena seeks the identity of a journalist's confidential source in a civil case, including a defamation case in which the reporter or media organization is a party.  Miller v. Transamerican Press, Inc., 621 F.2d 721, 726, as modified, 628 F.2d 932 (5th Cir. 1980). The party seeking the information must demonstrate with substantial evidence that the information is relevant, not available elsewhere, and the need for the information is compelling. Id.

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I. Defamation actions

A reporter’s privilege exists where a subpoena seeks the identity of a journalist's confidential source in a civil case, including a defamation case in which the reporter or media organization is a party.  Miller v. Transamerican Press, Inc., 621 F.2d 721, 726, as modified, 628 F.2d 932 (5th Cir. 1980).  The party seeking the information must demonstrate with substantial evidence that the information is relevant, not available elsewhere, and the need for the information is compelling. Id.

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IV. Who is covered

A. Statutory and case law definitions

1. Traditional news gatherers

a. Reporter

b. Editor

c. News

d. Photo journalist

e. News organization/medium

2. Others, including non-traditional news gatherers

B. Whose privilege is it?

V. Procedures for issuing and contesting subpoenas

A. What subpoena server must do

1. Service of subpoena, time

2. Deposit of security

3. Filing of affidavit

4. Judicial approval

5. Service of police or other administrative subpoenas

B. How to Quash

1. Contact other party first

Federal Rule of Civil Procedure 45 requires that a non-party objecting to a subpoena for documents give notice in writing to the subpoenaing party within 14 days of receipt of the subpoena. Fed. R. Civ. P. 45(d)(2)(B). If the non-party objects to a subpoena on the grounds that the material requested is privileged, it must expressly state this in the objection and include a description of the privileged documents, which could be used by the subpoenaing party to contest the privilege. Once the non-party objects to a subpoena, the subpoenaed materials may only be obtained through a court order to compel production. Id. Although some non-parties choose to file a motion to quash, Rule 45 places no obligation on the non-party to do so.  In the absence of a motion to quash, it is incumbent on the subpoenaing party to move to enforce the subpoena.

Most local rules require a party moving to quash or to compel to submit a certificate of conference with the motion, indicating that the attorney for the moving party conferred with an attorney for each party affected by the requested relief to determine whether the motion is opposed.  S.D. Fla. Local Rule 7.1(a)(3); N.D. Ga. Local Rule 37.1(A)(1).  Similarly, the Federal Rules require a party moving to compel to "include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make the discovery in an effort to secure the information or material without court action." Fed. R. Civ. P. 37(1).

 

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2. Filing an objection or a notice of intent

Rule 45 requires that a non-party objecting to a subpoena for documents give notice in writing to the subpoenaing party within 14 days of receipt of the subpoena. Fed. R. Civ. P. 45(d)(2)(B). If the non-party objects to a subpoena on the grounds that the material requested is privileged, it must expressly state this in the objection and include a description of the privileged documents, which could be used by the subpoenaing party to contest the privilege. Once the non-party objects to a subpoena, the subpoenaed materials may only be obtained through a court order to compel production. Id. Although some non-parties choose to file a motion to quash, Rule 45 places no obligation on the non-party to do so.  In the absence of a motion to quash, it is incumbent on the subpoenaing party to move to enforce the subpoena.

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3. File a motion to quash

a. Which court?

b. Motion to compel

c. Timing

d. Language

e. Additional material

4. In camera review

In Woods v. Georgia Pacific Corp., 2008 WL 11350078 (S.D. Ga. 2008), although the district court compelled disclosure of some materials, it required footage subject to the subpoena to be submitted for in camera review for the court to first determine if the materials should be provided to the subpoenaing party.

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a. Necessity

c. Consequences of refusing

5. Briefing schedule

6. Amicus briefs

VI. Substantive law on contesting subpoenas

A. Burden, standard of proof

In the Eleventh Circuit, information may only be compelled from a reporter claiming the privilege if the party requesting the information can show: (1) that it is highly relevant, (2) necessary to the proper presentation of the case, and (3) unavailable from other sources.  United States v. Caporale, 806 F.2d 1487, 1504 (11th Cir. 1986) (applying privilege in criminal racketeering trial); Miller v. Transamerican Press, Inc., 621 F.2d 721, 726 (5th Cir. 1980), cert. denied, 450 U.S. 1041 (1981) (applying privilege in civil libel suit).

Overcoming the standard is a “heavy burden” and the standard must be met by clear and convincing evidence. United States v. Thompson, No. 20522–CIV–CR, 2015 WL 1608462 *1 (S.D. Fla. April 10, 2015) (citing McCarty v. Bankers Ins. Co., 195 F.R.D. 39, 47 (N.D. Fla. 1998)).

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B. Elements

In the Eleventh Circuit, information may only be compelled from a reporter claiming the privilege if the party requesting the information can show: (1) that it is highly relevant, (2) necessary to the proper presentation of the case, and (3) unavailable from other sources.  United States v. Caporale, 806 F.2d 1487, 1504 (11th Cir. 1986).

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1. Relevance of material to case at bar

In United States v. Fountain View Apartments, Inc., 2009 WL 1905046, *2 (M.D. Fla. July 1, 2009), the court held that the reporter’s notes, drafts of scripts, and what the editor and reporter thought of interviewees’ reactions were not relevant to the case, and therefore were protected.

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2. Material unavailable from other sources

In United States v. Capers, 708 F.3d 1286, 1302-03 (11th Cir. 2013), the appellate court affirmed the district court’s quashing of a subpoena to a media company for footage of defendant’s interview with police, because the defendant failed to establish why he could not obtain the footage from the police department.

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a. How exhaustive must search be?

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

c. Source is an eyewitness to a crime

3. Balancing of interests

In Abrams v. Tuberville, 2013 WL 12244457 (M.D. Ala. Aug. 15, 2013), the court explained that the Eleventh Circuit’s Caporale test, described above, is designed to balance the competing interests of a free press and a fair trial.

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4. Subpoena not overbroad or unduly burdensome

5. Threat to human life

6. Material is not cumulative

7. Civil/criminal rules of procedure

8. Other elements

The Southern District of Florida has interpreted the second Caporale prong (that the information must be necessary to the proper presentation of the case) to mean that the party seeking to overcome the privilege must have a compelling reason for seeking the information.  Gregory v. Miami-Dade County, 2015 WL 3442008, *8 (S.D. Fla. 2015).

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C. Waiver or limits to testimony

1. Is the privilege waivable?

2. Elements of waiver

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?

VII. What constitutes compliance?

A. Newspaper articles

B. Broadcast materials

C. Testimony vs. affidavits

D. Non-compliance remedies

1. Civil contempt

a. Fines

b. Jail

2. Criminal contempt

3. Other remedies

VIII. Appealing

A. Timing

1. Interlocutory appeals

A district court may certify an interlocutory issue for appeal pursuant to 28 U.S.C. § 1292(b).

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2. Expedited appeals

B. Procedure

1. To whom is the appeal made?

2. Stays pending appeal

3. Nature of appeal

4. Standard of review

The appellate court’s review of a district court’s determination of state law, including state privileges, is de novo, as is the appellate court’s review of federal constitutional privilege issues.  Price v. Time, Inc., 416 F. 3d 1327, 1334 (11th Cir. 2005).

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5. Addressing mootness questions

6. Relief

IX. Other issues

A. Newsroom searches

B. Separation orders

C. Third-party subpoenas

D. The source's rights and interests