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2nd Circuit

Reporters Privilege Compendium

Lin Weeks
Christine Walz
Holland & Knight LLP
31 W. 52nd Street
New York, NY 10014
(212) 513-3200

Special thanks to the original authors of this chapter, Jeremy Feigelson, James C. Goodale, Rosa Castello, Susan A. McMahon, and Julie S. Suh at Debevoise & Plimpton LLP.

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I. Introduction: History & Background

The reporter's privilege in the Second Circuit is relatively broad. A litigant may assert the privilege in both civil and criminal cases, and when the information sought is from non-confidential or confidential sources. The tests to overcome the privilege are somewhat more press-protective than elsewhere. The following cases define the most significant aspects of the privilege in the Second Circuit:

  • Gonzales v. National Broadcasting Co., 194 F.3d 29 (2d Cir. 1999)

When the information sought is non-confidential, the litigant seeking the information from one who asserts the reporter's privilege under the First Amendment must demonstrate that the information: "(1) is of likely relevance; (2) to a significant issue in the case; and (3) is not reasonably obtainable from other available sources."

  • United States v. Cutler, 6 F.3d 67 (2d Cir. 1993)

When a litigant in a criminal case seeks information from a reporter who asserts the reporter's privilege under the First Amendment, the privilege will be defeated if the reporter witnessed the crime and is asked to answer questions that directly relate to that crime. Cutler followed the Supreme Court's decision in Branzburg v. Hayes, 408 U.S. 665 (1972), which held that a reporter who witnesses criminal conduct may not decline to answer questions that directly relate to the conduct the reporter observed.

  • United States v. Burke, 700 F.2d 70 (2d Cir.), denied, 464 U.S. 816 (1983)

When the reporter's privilege is asserted under the First Amendment to protect confidential information sought in civil or criminal cases (excluding criminal cases with facts that resemble Branzburg), the subpoenaing party must make "a clear and specific showing that the information is: (1) highly material and relevant, (2) necessary or critical to the maintenance of the claim, and (3) not obtainable from other available sources."

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II. Authority for and source of the right

The reporter's privilege in the Second Circuit was developed before Branzburg v. Hayes. The most influential pre-Branzburg case in the Second Circuit was Garland v. Torre, 259 F.2d 545 (2d Cir.), cert. denied, 358 U.S. 910 (1958). In Garland, the Second Circuit developed a three-part test regarding disclosure of both confidential and non-confidential information: a litigant must make a clear and specific showing that the information sought is (1) highly material and relevant to the underlying claim; (2) necessary or critical to maintenance of the claim (the "heart of the claim" requirement); and (3) unavailable from alternative sources (the "exhaustion" requirement).

The Garland test still applies in the Second Circuit and some other jurisdictions (See 23 Wright & Miller, Federal Practice & Procedure §5426 at 788 and n. 41 (noting that the Third Circuit, Fourth Circuit, Ninth Circuit, D.C. Circuit, District Court of Nevada, and other courts have adopted the Garland test)) when the subpoenaing party in a civil or criminal case seeks confidential information. United States v. Burke, 700 F.2d 70 (2d Cir), cert. denied, 464 U.S. 816 (1983). The Burke court derived this test from the post-Branzburg cases Baker v. F & F Investment, 470 F.2d 778, 783-85 (2d Cir.), aff'g 339 F. Supp. 942 (S.D.N.Y. 1972), cert. denied, 411 U.S. 966 (1973) and In re Petroleum Products Antitrust Litigation, 680 F.2d 5, 7-8 (2d Cir. 1982) (per curiam). To compel disclosure of non-confidential information, litigants must demonstrate that the information is: "(1) of likely relevance; (2) to a significant issue in the case; and (3) is not reasonably obtainable from other available sources." Gonzales v. National Broadcasting Co., 194 F.3d 29, 36 (2d Cir. 1999).

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A. Shield law statute

“New York's Shield Law provides journalists an absolute privilege from testifying with regard to news obtained under a promise of confidentiality but only a qualified privilege with regard to news that is both unpublished and not obtained under a promise of confidentiality.” Baker v. Goldman Sachs & Co., 669 F.3d 105, 107 (2d Cir. 2012); see New York Civil Rights Law § 79-h. For more information, see New York Privilege Compendium, Section II.A.

The Second Circuit does not appear to have examined the Connecticut shield law statute, which came into law in 2006, and is codified at Conn. Gen. Stat. Ann. § 52-146t. For more information, see Connecticut Privilege Compendium, Section II.A.

The Second Circuit also does not appear to have examined the Vermont shield law statute, which came into law in 2017, and is codified at Vt. Stat. 12, § 1615. For more information, see Vermont Privilege Compendium, Section II.A.

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B. State constitutional provision

C. Federal constitutional provision

D. Other sources

III. Scope of protection

A. Generally

For a general discussion of the scope of protection, see the Foreword to this chapter.

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B. Absolute or qualified privilege

The privilege is qualified for both confidential and non-confidential materials. United States v. Burke, 700 F.2d 70, 76-77 (2d Cir.) cert. denied, 464 U.S. 816 (1983) (recognizing qualified privilege for confidential materials); Gonzales v. National Broadcasting Co., 194 F.3d 29 (2d Cir. 1999) (recognizing qualified privilege for non-confidential materials).

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C. Type of case

1. Civil

The application of the privilege does not differ significantly if the reporter is subpoenaed in a civil case, as opposed to a criminal case. See United States v. Burke, 700 F.2d 70, 77 (2d Cir. 1983) ("We see 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."). The test does differ depending on whether the materials withheld are confidential or non-confidential.

In cases involving confidential materials, the three-part test outlined in In re Petroleum Products Antitrust Litig., 680 F.2d 5, 7-8 (2d Cir. 1982), controls. The In re Petroleum test requires the subpoenaing party to make "a clear and specific showing that the information is: [1] highly material and relevant, [2] necessary or critical to the maintenance of the claim, and [3] not obtainable from other available sources." Id.; see also Burke, 700 F.2d at 77; Baker v. F & F Inv., 470 F.2d 778, 783-85 (2d Cir. 1972).

When the information sought is non-confidential, the test set forth in Gonzales v. National Broadcasting Co. governs. 194 F.3d 29 (2d Cir. 1999). In Gonzales, plaintiffs and defendants in a civil rights litigation subpoenaed non-party NBC to disclose non-confidential video outtakes of allegedly improper traffic stops by the defendant, a Louisiana sheriff. The court held that non-confidential material receives a qualified privilege that is less protective than that for confidential materials: the subpoenaing party must demonstrate that the non-confidential information is: "[1] of likely relevance to a significant issue in the case; and [2 is] not reasonably obtainable from other available sources." Id.

In the context of witness testimony, the application of privilege applies to direct examination questions not implicating the privilege that require implications or open the door to questions on cross that would implicate the privilege. In Baker v. Goldman Sachs & Co., appellants sought testimony from a reporter which they stated they would limit to whether his published report (i.e., that information not implicated by the New York Shield Law at issue in the case) was “accurately reported.” 669 F.3d 105 (2d Cir. 2012). But the court held that such a question would provide a basis for matters such as the reporter’s newsgathering methods and his personal knowledge of the matters he reported. As such, the privilege prevented both the original question and “the cross-examination that would inevitably follow.” Baker v. Goldman Sachs & Co., 669 F.3d 105 (2d Cir. 2012).

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2. Criminal

The same three-part tests that apply in civil cases also apply in criminal cases. See Section III.C.1. Specifically, “in instances where a reporter is not protecting a confidential source or confidential materials, the showing required to overcome the journalist’s privilege is the same in a criminal case as it is in a civil case—namely, the showing required by Gonzales—and that is true whether the party seeking to overcome the privilege is the prosecution or the defense.” U.S. v. Treacy, 639 F.3d 32, 43 (2d Cir. 2011).

In criminal cases where the facts are similar or the same as in Branzburg (i.e., the reporter is a witness to criminal activity), the privilege may not provide protection. United States v. Cutler, 6 F.3d 67 (2d Cir. 1993); In re Ziegler, 550 F. Supp. 530 (W.D.N.Y. 1982) (“one thing is abundantly clear . . . reporters who witness a crime must testify as to what they saw”).

Motions to quash criminal defendants' subpoenas are often granted. United States v. Burke, 700 F.2d 70 (2d Cir.), cert. denied, 464 U.S. 816 (1983); United States v. Hendron, 820 F. Supp. 715 (E.D.N.Y. 1993); United States v. Aponte-Vega, 20 Med. L. Rep. 2202 (S.D.N.Y. May 29, 1992); United States ex rel. Vuitton Et Fils S.A. v. Karen Bags, Inc., 600 F. Supp. 667 (S.D.N.Y. 1985); United States v. Winans, 612 F. Supp. 827 (S.D.N.Y. 1985); United States v. DePalma, 466 F. Supp. 917 (S.D.N.Y. 1979); United States v. Orsini, 424 F. Supp. 229 (E.D.N.Y. 1976), aff'd without opinion, 559 F.2d 1206 (2d Cir.), cert. denied, 434 U.S. 997 (1977).

Courts in the Second Circuit have on several occasions denied motions to quash defendants' subpoenas in criminal cases. See United States v. Cutler, 6 F.3d 67 (2d Cir. 1993); United States v. Sanusi, 813 F. Supp. 149, 160 (E.D.N.Y. 1992) (expressing "reluctan[ce] in [] criminal case[s] to substitute its judgment for the defendant's on the question of whether such evidence is 'necessary or critical to a defense'"). At other times, motions to quash may be conscribed. In U.S. v. Treacy, the district court limited direct and cross examination to questions directed toward understanding the context of statements made by a nonconfidential source in a criminal case. See 639 F.3d 32 (2d Cir. 2011). The Second Circuit held that once the requisite showing overcoming the privilege to compel direct testimony has been made, the Sixth Amendment’s confrontation clause precludes the trial court from employing the privilege to restrict cross-examination. U.S. v. Treacy, 639 F.3d 32 (2d Cir. 2011); see also Baker v. Goldman Sachs & Co., 669 F.3d 105, 110 (2d Cir. 2012) (applying this reasoning to the civil context).

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3. Grand jury

In New York Times Co. v. Gonzales, 459 F.3d 160 (2d Cir. 2006) the Second Circuit explicitly refused to decide whether there was a common law privilege under Rule 501 of the Federal Rules of Evidence for reporters to withhold sources from a grand jury. If a privilege existed, it was overcome by the government's compelling interest in investigating the unauthorized disclosure of imminent law enforcement actions. Id. at 171. In Gonazles, the prosecutor sought the phone records of The New York Times in connection with an investigation concerning the unauthorized disclosure of government plans to seize assets of suspected terrorist organizations. Id. at 163. The court limited its finding to the facts of this case, explicitly distinguishing it from a case involving government misconduct or corruption. Id. at 171-72. The court similarly found that there was no protection under the First Amendment, holding that the government interest in this case trumped any privilege outlined in the various Branzburg opinions, with the exception of Justice Douglas' dissent. Id. In dissent, Judge Sack urged the court to recognize a common law privilege, explaining, "[a] qualified journalists' privilege seems to me easily ñ even obviously ñ to meet [the qualifications set forth by the Supreme Court in Jaffe]. The protection exists. It is palpable; it is ubiquitous; it is widely relied upon; it is an integral part of the way in which the public is kept informed and therefore of the American democratic process." Id at 181. Echoing the concerns expressed by Judge Tatel in the Judith Miller case, Sack urged the court to adopt a different test for cases involving leak investigations. Id. at 185.

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D. Information and/or identity of source

Courts in the Second Circuit have applied the privilege to protect both confidential sources, see Baker v. F & F Inv., 470 F.2d 778 (2d Cir. 1972), and information, see United States v. Burke, 700 F.2d 70 (2d Cir. 1983) (confidential materials), Gonzales v. National Broadcasting Co., 194 F.3d 29 (2d Cir. 1999) (non-confidential outtakes).

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E. Confidential and/or nonconfidential information

The reporter's privilege in the Second Circuit is strongest when confidential information is sought. See infra Section VI.A&B for the tests to compel disclosure of confidential and non-confidential materials. Confidential materials have included: confidential sources, Baker v. F & F Inv., 470 F.2d 778 (2d Cir.), cert. denied, 411 U.S. 966 (1973); documents provided confidentially, Citicorp v. Interbank Card Ass'n, 478 F. Supp. 756 (S.D.N.Y. 1978); research underlying an article, United States v. Burke, 700 F.2d 70 (2d Cir.), cert. denied, 464 U.S. 816 (1983); and a former reporter's confidential notes and diaries reflecting conversations with sources retained by a newspaper, United States v. Winans, 612 F. Supp. 827 (S.D.N.Y. 1985).

Non-confidential materials, which are generally unpublished materials that were gathered with no expectation of confidentiality, have included: unedited video outtakes, Gonzales v. National Broadcasting Co., 194 F.3d 29 (2d Cir. 1999); In re Chevron Corp., 709 F. Supp. 2d 283, 295 (S.D.N.Y. 2010), aff'd sub nom. Chevron Corp. v. Berlinger, 629 F.3d 297 (2d Cir. 2011); audiotapes of interviews, In re Ramaekers, 33 F. Supp. 2d 312 (S.D.N.Y. 1999); tape recordings of telephone conference calls which were not subject to an agreement of confidentiality, PPM America, Inc. v. Marriott Corp., 152 F.R.D. 32 (S.D.N.Y. 1993); tape-recorded news conferences, Don King Prods., Inc. v. Douglas, 131 F.R.D. 421 (S.D.N.Y. 1990); and a reporter's testimony confirming published statements, SEC v. Seahawk Deep Ocean Tech., Inc., 166 F.R.D. 268 (D. Conn. 1996).

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F. Published and/or non-published material

Whether the material is published or unpublished does not change the test to overcome the privilege in the Second Circuit. Both non-confidential unpublished and published materials receive a qualified privilege. See Gonzales v. National Broadcasting Co. , 194 F.3d at 36 (2d Cir. 1999) (unpublished materials); Von Bulow v. Von Bulow, 811 F.2d 136, 142 (2d Cir. 1987) (acknowledging unpublished resource materials may be protected); SEC v. Seahawk Deep Ocean Tech., Inc., 166 F.R.D. 268 (D. Conn. 1996) (published materials). In Seahawk, the SEC sought to depose a reporter to confirm that one of the defendants in the underlying civil case had made statements printed in a newspaper article. Although the SEC sought published, non-confidential information, the court held that a qualified First Amendment privilege applied. The SEC overcame the privilege and was allowed to depose the reporter.

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G. Reporter's personal observations

The privilege in the Second Circuit does not protect reporters who witness criminal activity in circumstances similar to Branzburg. In United States v. Cutler, 6 F.3d 67, 73 (2d Cir. 1993), the Court explained that when reporters are witnesses to a crime, and they are asked to give testimony about the crime, the request for testimony in this situation is parallel to the situation in Branzburg v. Hayes, 408 U.S. 665 (1972), where the Supreme Court held that there is no privilege to refuse "to answer questions that directly relate[ ] to criminal conduct that [a journalist] has observed and written about." The reporter who witnessed the crime in Branzburg was subpoenaed by a grand jury, whereas in Cutler the reporter who witnessed the crime was subpoenaed by the defendant. The Second Circuit felt that the two cases were too similar to allow the reporter in Cutler to receive the privilege. Id. at 73.

In another case involving an eyewitness, In re Ziegler, 550 F. Supp. 530 (W.D.N.Y. 1982), the district court refused to extend the privilege to a reporter who witnessed the assault of an organized crime figure. After Ziegler wrote about the altercation, the government subpoenaed Ziegler to testify about the incident. The court denied Ziegler's motion to quash the subpoena because "the legal principle Branzburg stands for is no less applicable to the instant case, that a reporter, the same as any other citizen, must testify before the Grand Jury as to what he has personally observed." Id. at 532.

Jurisprudence regarding more general first-hand observations is mixed. Some district courts have stated that “[a] reporter’s observations of a public place or event are no different than that to individuals; and as to this, they are not entitled to constitutional protection.” See, e.g., United States v. Markiewicz, 732 F.Supp. 316 (N.D.N.Y. 1990). Yet multiple district courts have held the opposite, on the basis that a distinction protecting recorded, but not remembered observations does not make sense. Lebowitz v. City of New York, 948 F. Supp. 2d 392 (S.D.N.Y. 2013) (noting that the opposite view “would permit any litigant to circumvent the reporter's privilege simply by seeking his or her mental recollections of events, rather than ‘materials’ memorializing those same events”); Carter v. City of New York, No. 02 Civ. 8755 (RJH), 2004 WL 193142 (S.D.N.Y. Feb. 2, 2004). Lebowitz drew its authority for its holding in part from the dicta in Treacy, in which the Second Circuit applied the privilege to direct testimony but found that the privilege was overcome due to other circumstances. United States v. Treacy, 603 F.Supp.2d 670 (S.D.N.Y. 2009); aff'd in relevant part, 639 F.3d 32, 36 (2d Cir. 2011).

The privilege may protect reporters who are eyewitnesses to public events with multiple witnesses. In Carter v. City of New York, 2004 U.S. Dist. LEXIS 1308 (S.D.N.Y. Jan. 30, 2004) the court refused to compel a reporter to testify about his personal observations of a public protest, finding that the defendants had not made a compelling showing of need.

The privilege may also protect journalists who are witnesses to an event at issue in a civil litigation. In SEC v. Seahawk Deep Ocean Tech., Inc., 166 F.R.D. 268 (D. Conn. 1996), the court stated the reporter witnessed one of the alleged acts of misconduct in a civil securities fraud action, yet the court did not rule that the reporter automatically did not receive the privilege as a result of being a witness. Instead, the court applied the three-prong reporter's privilege test and denied the reporter's motion to quash. Id. at 271-72.

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H. Media as a party

Whether the media is a party to a lawsuit does not change the formulation of the common law test for reporter's privilege. The privilege was developed in Garland v. Torre, 259 F.2d 545 (2d Cir.), cert. denied, 358 U.S. 910 (1958), which involved a party reporter. Most of the reported cases involve non-parties. Some courts have held that the showing required to compel a non-party reporter is higher than that of a party to the litigation. See Driscoll v. Morris, 111 F.R.D. 459 (D. Conn. 1986).

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I. Defamation actions

The same formulation of the test to determine if a qualified privilege exists in non-libel suits applies in libel suits, but the privilege is weaker in a libel suit. See Aequitron Med. Inc. v. CBS, Inc., 24 Med. L. Rptr. 1025, 1995 U.S. Dist. Lexis 9485 (S.D.N.Y. 1995). For example, in Aequitron, journalists for "CBS This Morning" asserted the privilege to withhold non-confidential documents requested by plaintiffs in a trade libel and defamation case. Plaintiff corporation, which manufactured infant heart rate and respiration monitors that are used to protect infants from SIDS, accused defendant CBS of making false, deceptive and defamatory statements about the monitors. The court applied the three-prong qualified privilege test for CBS, but the court emphasized that the privilege is weaker in a libel case against a media defendant where the plaintiff seeks non-confidential information. Id. at *8. The court held that the plaintiff overcame the privilege because the plaintiff met all three prongs of the privilege test. Id. at *9. (For more discussion of Aequitron see Section VI.B.1.)

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IV. Who is covered

The Second Circuit's test for who can benefit from the reporter's privilege is broad. The Second Circuit, in Von Bulow v. Von Bulow, held that "the individual claiming the privilege must demonstrate, through competent evidence, the intent to use material -- sought, gathered or received -- to disseminate information to the public and that such intent existed at the inception of the newsgathering process." 811 F.2d 136, 144 (2d Cir. 1987). The court went on to say: "The intended manner of dissemination may be by newspaper, magazine, book, public or private broadcast medium, handbill or the like, for 'the press in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion.'" Id. (quoting Lovell v. Griffin, 303 U.S. 444 (1938).

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A. Statutory and case law definitions

1. Traditional news gatherers

a. Reporter

The definition of reporter is not contingent upon the reporter working full-time or working a minimum number of hours. Instead, the core of the test is whether an individual gathers information in the course of newsgathering duties and has the intention to disseminate the information to the public in an independent capacity. Von Bulow v. Von Bulow, 811 F.2d 136, 144 (2d Cir. 1987). The privilege has been extended to cover student reporters. Persky v. Yeshiva Univ., No. 01 Civ. 5278 (LMM), 2002 WL 31769704 (S.D.N.Y. Dec. 10, 2002); Blum v. Schlegel, 150 F.R.D. 42 (W.D.N.Y. 1993), see Supra IV.A..2.

The boundaries of what constitutes an independent news gatherer were examined in Chevron Corp. v. Berlinger, where an attorney solicited the creation of a documentary of the litigation from the perspective of one of his clients. The attorney had a degree of directorial input over the documentary, including advising the director to remove a certain scene. The Second Circuit affirmed the district court’s decision that the documentarian had not acted in an independent fashion. The holding was based on the premise that independent reporters are those whose work is not subject to the agenda or objectives of outside interests. Rather, “those who do not retain independence as to what they will publish but are subservient to the objectives of others who have a stake in what will be published have either a weaker privilege or none at all.” Chevron Corp. v. Berlinger, 629 F.3d 297, 308 (2d Cir. 2011).

The court also advanced a hypothetical to illustrate the difference:

Consider two persons, Smith and Jones, who separately undertake to investigate and write a book or article about a public figure in national politics. Smith undertakes to discover whatever she can through her investigations and to write a book that reflects whatever her investigations may show. Jones has been hired or commissioned by the public figure to write a book extolling his virtues and rebutting his critics. Smith unquestionably presents a stronger claim of entitlement to the press privilege (which is not to say the privilege might not be overcome, depending on the circumstances). Jones, who was commissioned to write a book promoting a particular point of view regardless of what her investigations may reveal, either possesses no privilege at all or, if she possesses the privilege, holds one that is weaker and more easily overcome.

Chevron Corp. v. Berlinger, 629 F.3d 297 (2d Cir. 2011). Despite this holding, the independently held viewpoint of a reporter, however consistently applied to his work, is not implicated by this decision. Chevron Corp. v. Berlinger, 629 F.3d 297 (2d Cir. 2011) (“Consistency of point of view does not show lack of independence”); In re McCray, Richardson, Santana, Wise, and Salaam Litig., 928 F. Supp. 2d 748 (S.D.N.Y. 2013).

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b. Editor

Courts in the Second Circuit have extended the privilege to editors.

In Lipinski v. Skinner, 781 F. Supp. 131 (N.D.N.Y. 1991), plaintiff was arrested and forced to undergo HIV testing. Plaintiff tested positive for HIV. The Binghamton Press published an article stating that the plaintiff was the first inmate in the Broome County jail with AIDS. Plaintiff sued the police and jail officials alleging that they violated the law by forcing him to take an HIV test and failing to protect his confidentiality. The author of the article stated in a deposition that one of her editors at the paper told her to investigate reports of an inmate with AIDS and that the sheriff confirmed that the plaintiff had tested positive. The author had two editors at the paper, and she did not state which editor gave her the information. Plaintiff subpoenaed testimony from both of the author's editors to determine which editor gave the author the lead. The court held that plaintiff satisfied the Burke three-prong test to overcome the privilege and ordered that the newspaper's motion to quash the subpoenas against the editors be denied. Id. at 138-139. Plaintiff's discovery was limited to questions about who initially disclosed the information regarding plaintiffs' HIV test to the newspaper. Id. at 140.

“Editorial decisions and decisions on articles to be published (or not published)” may be subject to the reporter’s privilege. The privilege is designed to prevent the “wholesale production of press files,” and so a district court accordingly denied a motion to compel discovery of records of a magazine’s editorial meetings and those documenting the decision-making process regarding cover stories and subjects of coverage by a plaintiff alleging that she was subjected to a racially discriminatory work environment.  Robertson v. People Mag., 14 CIV. 6759 (PAC), 2015 WL 9077111 (S.D.N.Y. Dec. 16, 2015) (applying New York Shield Law).

Additionally, in In re Welling, 40 F. Supp. 2d 491 (S.D.N.Y. 1999), a Barron's associate editor wrote an article that led attorneys in a securities fraud cases to believe she had relevant evidence. Her motion to quash the subpoena was denied. After the trial court decision, the associate editor tried to have herself held in contempt so she could appeal the decision to not quash the subpoena. The district court did not reach the merits of the decision, finding she could not be held in contempt because the deadline for complying with the subpoena had not yet been fixed, so she had not yet disobeyed a court order. Id. at 493-94.

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c. News

While the Second Circuit does require that information be gathered in the newsgathering process to be covered by the reporter's privilege, it has not specifically defined the term "news." Yet the Second Circuit in Von Bulow v. Von Bulow made it clear that newsgathering only includes efforts to disseminate information to the public. 811 F.2d 136, 145 (2d Cir. 1987); see also infra Section IV.A.2. Examples of newsgathering include a journalist's discussions with a confidential source that the journalist intends to publish in a newspaper, United States v. Aponte-Vega, 20 Med. L. Rep. 2202 (S.D.N.Y. May 29, 1992); a network's filming of traffic stops by a policeman for the purpose of broadcasting the stops on a television show, Gonzales v. National Broadcasting Co., 194 F.3d 29 (2d Cir. 1999); and a financial newsletter's acquisition of a tape recording of a conference call which contained information about a conspiracy that the newsletter intended to publish, PPM America, Inc. v. Marriott Corp., 152 F.R.D. 32 (S.D.N.Y. 1993).

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d. Photo journalist

The Second Circuit has not explicitly defined the term "photojournalist." There appears to be no caselaw in the Second Circuit addressing whether the reporter's privilege applies to photojournalists, but under the Von Bulow test it appears that they would be covered. See also cases involving video outtakes, e.g. In re NBC, 79 F.3d 346 (2d 1996).

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e. News organization/medium

The Second Circuit has not distinguished among media. The same law applies to any entity or individual as long as the entity or individual gathers information in the course of newsgathering duties and has the intention to disseminate the information to the public. Von Bulow v. Von Bulow, 811 F.2d 136, 144 (2d Cir. 1987).

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2. Others, including non-traditional news gatherers

District courts have expressed a willingness to extend the privilege to less traditional newsgatherers, including the publisher of a technical newsletter and student journalists. See Apicella v. McNeil Laboratories, Inc., 66 F.R.D. 78, 85 (E.D.N.Y. 1975) (technical newsletter); Persky v. Yeshiva Univ., No. 01 Civ. 5278 (LMM), 2002 WL 31769704 (S.D.N.Y. Dec. 10, 2002) (student journalist); Blum v. Schlegel, 150 F.R.D. 42 (W.D.N.Y. 1993) (student journalist).

It is likely that freelance writers would also satisfy the broad Second Circuit privilege test, so long as "the individual claiming the privilege must demonstrate, through competent evidence, the intent to use material -- sought, gathered or received -- to disseminate information to the public and that such intent existed at the inception of the newsgathering process." Von Bulow v. Von Bulow, 811 F.2d 136, 144 (2d Cir. 1987).

This test also applies to authors of books. In Von Bulow v. Von Bulow, the Second Circuit recognized that book authors with the requisite intent could qualify for the privilege. The court did not allow the author of a manuscript on the accused murderer, Claus von Bulow, to benefit from the privilege because she "gathered information initially for purposes other than to disseminate information to the public." Id. at 146. For example, she commissioned reports on the lifestyles of von Bulow's wife's children, with no intention of disclosing them. At oral argument the author's counsel admitted that when the author commissioned the reports her main concern was to vindicate Claus von Bulow. The Second Circuit also found the author's personal notes on the trial of Claus von Bulow not to be privileged. The author claimed to have taken these notes to write an article for the New York Post, but the Second Circuit found her assertion belied by the fact that she continued to take notes even after the Post decided not to print her article. Id. at 145.

The Second Circuit has not definitively stated whether academics receive a privilege. In In re Grand Jury Subpoena (Brajuha), the court held that pursuant to Federal Rule of Evidence 501 it had the power to fashion a scholar's privilege, but the court did not decide if the scholar's privilege in fact exists. In re Grand Jury Subpoena (Brajuha), 750 F.2d 223, 224-25 (2d Cir. 1984). In this case, a graduate student created a journal in preparation for writing his dissertation entitled "The Sociology of the American Restaurant." The grand jury subpoenaed the journal because it included the student's notes on a restaurant in which a suspicious fire had started. The Court held that if a scholar's privilege exists, it "requires a threshold showing consisting of a detailed description of the nature and seriousness of the scholarly study in question, of the methodology employed, of the need for assurances of confidentiality to various sources to conduct the study, and of the fact that the disclosure requested by the subpoena will seriously impinge upon that confidentiality." Id. at 225. The court remanded the case for additional findings and ordered in camera review and redaction of sections of the journal that arguably fell under the scholar's privilege. Id. at 226.

Similarly, the Second Circuit has not explicitly stated whether the privilege applies to newspaper librarians or others connected to the news process. Given the broad reach of who can receive the privilege in the Second Circuit, it is likely that anyone connected to the news process could receive the privilege if they gather information in the course of newsgathering duties and have the intention to disseminate the information to the public in an independent manner.

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B. Whose privilege is it?

The privilege belongs to the reporter, and not to the source. In Small v. UPI, 84 Civ. 7320 (VLB), 1989 U.S. Dist. LEXIS 12459 (S.D.N.Y. Oct. 20, 1989) (Roberts, Mag.), the court held that the privilege belongs to the reporter and the source may neither waive the privilege nor invoke the privilege to protect information that the reporter may choose to reveal. In Small, plaintiff sued UPI and some of its executives for breach of contract and defamation. UPI sought to withhold discovery of the transcript of an interview with two named defendants, conducted by reporters who had no affiliation with UPI but were writing a book on UPI. The court rejected defendant's privilege claim because the privilege belongs to the reporter, not to the source. Id. at *3.

In United States v. Winans, the court held that publishers or broadcasters may assert the privilege concurrently with or in lieu of an individual reporter. United States v. Winans, 612 F. Supp. 827 (S.D.N.Y. 1985). In this case, a former reporter for the Wall Street Journal, who was being prosecuted for securities violations, sought to have his former publisher disclose the names of confidential sources in the reporter's notes and diaries that remained with the Journal. The court held that the Journal could assert the privilege in lieu of the reporter and held that the reporter did not meet the three-prong test to overcome the privilege. Id. at 1280.

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V. Procedures for issuing and contesting subpoenas

A. What subpoena server must do

1. Service of subpoena, time

No special rules or unusual interpretations attach to the timing or manner of service of subpoenas in the Second Circuit. The requirements set out in Rule 45 of the Federal Rules of Civil Procedure and Rule 17 of the Federal Rules of Criminal Procedure control. Rules 45(b) and 17(d) both specify that the subpoena server not be a party and be at least 18 years old. Personal service is required. Rule 45(c)(3)(A)(i) of the Federal Rules of Civil Procedure states that a subpoena shall be quashed if it "fails to allow reasonable time for compliance."

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2. Deposit of security

There is no rule in the Second Circuit that any security be deposited in order to procure testimony or materials. Under Federal Rule of Civil Procedure 45(b)(1), witness and mileage fees must accompany service of a subpoena that requires attendance at a trial or deposition. Whether subsequent tender of fees perfects service is unsettled in the Second Circuit. 9 James Wm. Moore et al., Moore's Federal Practice § 45.21 (2007); 1 James Wm. Moore et al., Moore's Federal Rules Pamphlet 2007 § 45.6 (Lexis 2007).

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3. Filing of affidavit

No affidavit is required upon issuance of the subpoena.

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4. Judicial approval

A party ordinarily need not receive any special approval from a judge or magistrate to serve a subpoena in the Second Circuit. Some district judges require judicial approval prior to filing motions. All local rules for Second Circuit courts are available online at www.ca2.uscourts.gov/Docs/Rules/LR.pdf.

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5. Service of police or other administrative subpoenas

Issues involving administrative subpoenas are dealt with on a state level and should not be an issue in a federal legal proceeding.

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B. How to Quash

1. Contact other party first

The law does not require notifying the subpoenaing party prior to moving to quash.

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2. Filing an objection or a notice of intent

No notice of intent is required prior to filing a motion to quash. Failure to timely object is usually considered a waiver of any objection to the subpoena. United States v. IBM Corp., 70 F.R.D. 700, 701-02 (S.D.N.Y. 1976); Eldaghar v. City of New York,2003 U.S. Dist. LEXIS 19247, at *2 (S.D.N.Y. Oct. 28, 2003).

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3. File a motion to quash

a. Which court?

A motion to quash should be filed in the same court from which the subpoena was issued, as only that court may properly quash the subpoena. Fed. R. Civ. P. 45(c)(3)(A); Jack Frost Laboratories, Inc. v. Physicians & Nurses Mfg. Corp., 1994 U.S. Dist. LEXIS 261 (S.D.N.Y. Jan. 13, 1994).

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b. Motion to compel

The recipient of a subpoena seeking privileged information always has the option -- some would say the obligation -- of filing a motion to quash rather than objecting and/or awaiting a motion to compel. If one simply does not comply with a subpoena, one runs the risk of being held in contempt. Filing a motion to quash requires paying the associated fees and committing to litigation of an issue that might otherwise be avoided, if, for example, the party seeking information ultimately decides not to pursue disclosure.

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c. Timing

A motion to quash normally should be filed as soon as practicable. A motion to quash is timely if it is made before the time of compliance set out in the subpoena. See Nova Biomedical Corp. v. I-Stat Corp., 182 F.R.D. 419, 422 (S.D.N.Y. 1998); see also 1 James Wm. Moore et al., Moore's Federal Rules Pamphlet § 45.10 (Lexis 2007).

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d. Language

While there is no "stock language" that is required, motions to quash are often predicated on one of the following grounds: the request for information is overly broad, insufficient time has been permitted for compliance, the request is unduly burdensome, and/or the material requested is privileged.

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e. Additional material

Every motion must be accompanied by a memorandum of law, which should contain all relevant legal authorities. Some local rules may require additional attachments; for example, often a copy of the subpoena to be quashed must be submitted along with the motion. It is important to check the rules of the particular judge before whom you are moving to quash.

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4. In camera review

a. Necessity

A court is not legally required to hold an in camera review of materials sought. Many judges consider in camera review necessary to determine if the information is privileged. If the party seeking to quash is unable to adequately explain why the materials should be protected without disclosing confidential information, then in camera review may be essential to an informed ruling. See N.Y. Times Co. v. Gonzales, 459 F.3d 160, 171 (2d Cir. 2006).

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A stay pending appeal of an adverse ruling following in camera review is not automatic. The court which issued the ruling may grant a stay pending appeal based on four factors: "(1) whether the movant will suffer irreparable injury absent a stay, (2) whether a party will suffer substantial injury if a stay is issued, (3) whether the movant has demonstrated a 'substantial possibility, although less than a likelihood, of success' on appeal, and (4) the public interests that may be affected." First City, Texas-Houston, N.A. v. Rafidain Bank, 131 F. Supp. 2d 540, 543 (S.D.N.Y. 2001) (internal citations omitted); Hirschfeld v. Bd. of Elections, 984 F.2d 35, 39 (2d Cir. 1993).

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c. Consequences of refusing

If a reporter or publisher does not consent to in camera review, a judge will very likely not grant the motion to quash. Disobeying a judge's order for in camera review also may result in being held in contempt.

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5. Briefing schedule

Every court sets its own briefing schedule for a motion to quash. Local rules, including the rules applicable to timing of briefs, are available at www.ca2.uscourts.gov/Docs/Rules/LR.pdf.

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6. Amicus briefs

Courts in the Second Circuit accept amicus briefs at both the district court and the appellate levels. The decision whether to do so is entirely within the court's discretion. The following are some organizations that have filed amicus briefs in cases involving media privilege:
Reporters Committee for Freedom of the Press
1156 15th St. NW, Suite 1020, Washington D.C. 20005 
(202) 795-9300
www.rcfp.org

American Civil Liberties Union
125 Broad Street, 18th Floor
New York, NY 10004
(212) 344-3005
www.aclu.org

Electronic Frontier Foundation
454 Shotwell Street
San Francisco, CA 94110
(415) 435-9333
www.eff.org

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VI. Substantive law on contesting subpoenas

A. Burden, standard of proof

Both confidential and non-confidential information are subject to a qualified privilege in the Second Circuit. A claim of privilege is easier to sustain when the material sought is confidential. When the information sought is confidential, "disclosure may be ordered only upon a clear and specific showing that the information is: highly material and relevant, necessary or critical to the maintenance of the claim, and not obtainable from other available sources." United States v. Burke, 700 F.2d 70, 76-77 (2d Cir. 1983). To compel disclosure of non-confidential information, litigants must demonstrate that the information is "of likely relevance to a significant issue in the case, and [is] not reasonably obtainable from other available sources." Gonzales v. National Broadcasting Co., 194 F.3d 29, 36 (2d Cir. 1998).

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B. Elements

1. Relevance of material to case at bar

The relevance tests differ depending on whether the material is confidential or non-confidential. One seeking disclosure of confidential materials must demonstrate by clear and convincing evidence that that the materials sought are both "highly material and relevant" and "necessary or critical to the maintenance of the claim." Burke, 700 F.2d at 76-77. One seeking disclosure of non-confidential materials must establish that the materials are "of likely relevance" to "a significant issue in the case." Gonzales v. National Broadcasting Co., 194 F.3d at 36.

Confidential Information

Highly material and relevant

The first element of the test to overcome a qualified privilege for confidential information is that the party seeking the information must show that the information is "highly material and relevant" to the ultimate issue. Burke, 700 F.2d at 76-77. To satisfy the relevancy test, it is necessary to make a "clear and specific showing" of materiality. Id. In Burke, defendants in a point shaving scandal sought research documents from a reporter who wrote an article about the scandal in Sports Illustrated. The court ruled that the documents were highly material and relevant because they may have contained information that contradicted the trial testimony of a government witness. Id. at 77. (For other examples of cases in which confidential information was found to be "highly material and relevant," see Umhey v. County of Orange, 957 F. Supp. 525 (S.D.N.Y. 1997) (motion to quash denied); Pellegrino v. New York Racing Ass'n, Inc., No. 96-CV-2315 (TCP) (E.D.N.Y. Aug. 22, 1996, modified Sept. 18, 1996) (motion to quash denied); Lipinski v. Skinner, 781 F. Supp. 131 (N.D.N.Y. 1991) (motion to quash denied).) The other two prongs of the privilege were not met in this case. (For more discussion on Burke see infra Sections I and III.C.1)

In United States ex rel. Vuitton Et Fils S.A. v. Karen Bags, Inc, 600 F. Supp. 667 (S.D.N.Y. 1985), the court found that the information sought was not highly material. In Vuitton, the defendant had been found guilty of willfully violating an injunction forbidding him to sell counterfeit trademarked goods. Following his conviction, he sought to subpoena outtakes of a CBS News investigation about the counterfeiting scandal in an attempt to find evidence of prosecutorial misconduct. The court held that these outtakes were not highly material because it was merely a hunch or sheer speculation that these outtakes would provide the helpful information the defendant sought. Id. at 671.

Necessary/Critical to the Maintenance of the Claim

The second element of the test to overcome a qualified privilege for confidential information is that the information must be "necessary or critical to the maintenance of the claim." Burke, 700 F.2d at 76-77. Courts in the Second Circuit have stated that for the information or testimony to be necessary or critical, the claim must "virtually rise[] or fall[] with the admission or exclusion" of the requested information. In re Waldholz, 1996 U.S. Dist. LEXIS 9648, at *11 (S.D.N.Y. July 11, 1996) (quoting In re NBC (Krase v. Graco), 79 F.3d 346, 351 (2d Cir. 1996)). Courts have also noted that when information sought from the reporter would be cumulative of other evidence, it cannot be necessary or critical to a claim. Burke, 700 F.2d at 78; In re Application of Behar (Church of Scientology v. IRS), 779 F. Supp. 273, 275 (S.D.N.Y. 1991). Uniqueness need not be demonstrated. In re Natural Gas Commodities Litig., 235 F.R.D. 241 (S.D.N.Y. 2006) ("necessary or critical" does not require "uniqueness").

In Lipinski v. Skinner, 781 F. Supp. 131 (N.D.N.Y. 1991) (motion to quash denied), testimony from editors of a newspaper was considered necessary and critical to plaintiff's claim that police had given confidential, sensitive information about him to a newspaper. The editors could testify about who in the police force had made the initial disclosure to the paper. (For a more detailed discussion of Lipinski, see infra Section IV.A.1.b.)

In Umhey v. County of Orange, 957 F. Supp. 525 (S.D.N.Y. 1997) (motion to quash denied), plaintiff brought an action for emotional distress, and defendant subpoenaed a third-party reporter to determine whether the plaintiff -- who sued in part because of disclosure of confidential information to the media -- was herself the source of the confidential information. The court held that the information sought was necessary and critical to the defense. Also, the court ordered the reporter not to answer questions about sources other than the plaintiff.

In Pellegrino v. New York Racing Ass'n, Inc., No. 96-CV-2315 (TCP) (E.D.N.Y. Aug. 22, 1996, modified Sept. 18, 1996) (motion to quash denied), plaintiff sought to prove that the NYRA was responsible for leaking to a journalist information that plaintiff had been fired for sexual harassment. Plaintiff subpoenaed the journalist to disclose which of NYRA's employees had told him that plaintiff was fired for sexual harassment. The court held that the identification of the source was critical and necessary for the maintenance of the claim because plaintiff had to show that the source was authorized to speak on behalf of NYRA in order to prevail. In contrast, subpoenas have been quashed where the information sought was found not "necessary or critical to the maintenance of the claim. See United States v. Burke, 700 F.2d 70 (2d. Cir), cert. denied, 464 U.S. 816 (1983); In re Petroleum Products Antitrust Litig., 680 F.2d 5 (2d Cir. 1982); Baker v. F & F Investment, 470 F.2d 778 (2d Cir.), aff'g 339 F. Supp. 942 (S.D.N.Y. 1972), cert. denied, 411 U.S. 966 (1973); Sommer v. PMEC Assoc. & Co., 1991 U.S. Dist. LEXIS 5697 (S.D.N.Y. May 1, 1991); United States ex rel. Vuitton Et Fils S.A. v. Karen Bags, Inc, 600 F. Supp. 667 (S.D.N.Y. 1985).

For instance, in Sommer v. PMEC Assoc. & Co., defendants counter-claimed that plaintiff, Sommer, who contested the conversion to cooperative ownership of an apartment complex, had a vendetta against the owners of the complex. Defendants stated that one way in which Sommer carried out his vendetta was by feeding false and misleading statements to Newsday about the owners. Defendants thus subpoenaed Newsday for all research and other materials regarding stories on the conversion of North Shore Towers. The court held that this information from Newsday was not necessary and critical because:

Sommer's alleged feeding of false and misleading statements to Newsday is only one of sixteen courses of conduct which defendants allege Sommer undertook in furtherance of his vendetta. Given that defendants have already been provided with all of Newsday's published reports concerning the conversion, and given that defendants may investigate fifteen other avenues in support of their allegations of a vendetta, the Court concludes that defendants' claim will not virtually rise or fall upon the admission or exclusion of the material sought here from Newsday.

Sommer, 1991 U.S. Dist. LEXIS 5697, at *8.

Non-Confidential Information

Of Likely Relevance

The first element of the test to overcome a qualified privilege for non-confidential information is that the party seeking disclosure must demonstrate that the information "is of likely relevance." Gonzales v. National Broadcasting Co., 194 F.3d 29, 36 (2d Cir. 1998). In Gonzales, the court held that outtakes of allegedly improper traffic stops by the defendant, a Louisiana sheriff, were more than likely to be relevant because "they may assist the trier of fact in assessing whether [the sheriff] had probable cause to stop the NBC vehicle and might help determine whether he engaged in a pattern or practice of stopping vehicles without probable cause, as the Plaintiffs allege." Id. The motion to quash in Gonzales was denied. (For more discussion on Gonzales see infra Sections I and III.C.1.)

Before Gonzales, the court applied the more stringent "highly material and relevant" test to cases involving non-confidential information. Where courts deemed non-confidential information "highly material and relevant" the material obviously would also pass muster under the less stringent Gonzales standard of relevance. In re Ramaekers, 33 F. Supp. 2d 312 (S.D.N.Y. 1999) (motion to quash denied); In re Waldholz, 1996 U.S. Dist. LEXIS 9648 (S.D.N.Y. July 11, 1996) (motion to quash denied); Aequitron Med., Inc. v. CBS, Inc., 1995 U.S. Dist. Lexis 9485 (S.D.N.Y. 1995) (motion to quash denied).

For instance, in In re Waldholz, a securities class action, shareholders contended that officers and directors of pharmaceutical companies made false and misleading statements about the efficacy and safety of an AIDS drug. The plaintiffs subpoenaed Waldholz, a Wall Street Journal reporter, to have him confirm that a board member/defendant, Smith, made the statements attributed to him in Waldholz's article. The court ruled that this information was highly material and directly relevant because "(1) the Class predicates defendants' liability in part directly on the statement by Smith reported in Waldholz's article; and (2) Smith, in his deposition, disputed the accuracy of Waldholz's reporting of Smith's statement." In re Waldholz, 1996 U.S. Dist. LEXIS 9648, at *8 (S.D.N.Y. July 11, 1996). The motion to quash was denied.

Importantly, the district court is not required to undertake the burden of separating relevant information from non-relevant information without assistance from the party requesting that non-relevant information be limited. Chevron Corp. v. Berlinger, 629 F.3d 297 (2d Cir. 2011).

Involves a Significant Issue in the Case

The second element of the test to overcome a qualified privilege for non-confidential information is that the party seeking disclosure must demonstrate that the information involves "a significant issue in the case." Gonzales v. National Broadcasting Co., 194 F.3d at 36. In Gonzales, the court held that the information pertained to a significant issue in the case because the outtakes at issue portrayed the deputy sheriff stopping vehicles, and the claim revolved around whether the officer had stopped vehicles without probable cause.

Questions of witness credibility are not necessarily significant issues in a case sufficient to overcome the qualified privilege. In re McCray, Richardson, Santana, Wise, and Salaam Litig., 928 F. Supp. 2d 748 (S.D.N.Y. 2013), aff'd sub nom. In re McCray, Richardson, Santana, Wise, Salaam Litig., 991 F. Supp. 2d 464 (S.D.N.Y. 2013) (“impeachment material is ordinarily not critical or necessary to the maintenance or defense of a claim”). In In re McCray, defendants subpoenaed outtake footage from a documentary film entitled The Central Park Five, which non-party Florentine Films contested under New York’s Shield Law. There are some pre-Gonzales cases in which non-confidential information was found to meet the even higher standard of being "necessary and critical to the claim." See In re Ramaekers, 33 F. Supp. 2d 312 (S.D.N.Y. 1999) (motion to quash denied); In re Waldholz, 1996 U.S. Dist. LEXIS 9648 (S.D.N.Y. July 11, 1996) (motion to quash denied); Aequitron Med., Inc. v. CBS, Inc., 1995 U.S. Dist. Lexis 9485 (S.D.N.Y. 1995) (motion to quash denied). For example, in Aequitron Med., Inc. v. CBS, Inc., plaintiffs sued CBS for trade libel and defamation. CBS aired a segment on "CBS This Morning" concerning sudden infant death syndrome (SIDS). During this segment, a doctor ran a test of plaintiff's monitor in his laboratory on a plastic doll and the monitor did not emit any signals, indicating no heartbeat. The doctor explained on the air that the monitor was detecting small electrical signals that caused the device to not sound an alarm. The CBS reporter stated that "if that occurs on a real baby that stops breathing, the monitor may not sound, and the baby could die." Plaintiff alleged that CBS deceived the audience by not revealing that the SIDS monitor was hooked up to an electrical device that simulated normal impulses given by the human body, which, it was argued, caused the monitor to malfunction.

The Aequitron court held that the discovery requested by plaintiffs, which included broadcast outtakes of the show, was necessary and critical to their claim. Because one of the elements of their libel claim was that CBS had knowledge that the broadcast was deceptive and chose to air it anyway, it was necessary that plaintiffs have access to the outtakes and other materials to be able to prove the knowledge element. Aequitron Med., Inc. v. CBS, Inc., 1995 U.S. Dist. Lexis 9485, at *9 (S.D.N.Y. 1995).

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2. Material unavailable from other sources

The tests for unavailability differ depending on whether the materials are confidential or non-confidential.

Confidential Information

The third part of the test to overcome a qualified privilege for confidential information is that the information "is not obtainable from other available sources." Burke, 700 F.2d at 76-77 (To satisfy the "exhaustion requirement" for confidential information, the information sought must "not be obtainable from other available sources."). The third prong for non-confidential information is similar, but a bit less stringent. To overcome the privilege, the non-confidential information sought cannot be "reasonably obtainable from other available sources." Gonzales, 194 F.3d at 36. (To meet the "exhaustion requirement" for non-confidential information, the information sought must "not be reasonably obtainable from other available sources.") (emphasis added).

This part of the test is often referred to as the "exhaustion requirement." Courts in the Second Circuit consistently have given strict application to this element. One district court stated: "[a]t the very least, a party seeking to overcome a constitutional privilege on the basis of necessity must show that it has exhausted all other available non-privileged sources for the information. . . . [A party that] has not even worked up a sweat, much less exhausted itself [cannot defeat the privilege]." In re Pan Am Corp., 161 B.R. 577, 585 (S.D.N.Y. 1993). A party seeking disclosure from a journalist has not exhausted its options when obvious alternative witnesses exist and they have not been deposed or at least interviewed. Application of Behar (Church of Scientology v. IRS), 779 F. Supp. 273, 275 (S.D.N.Y. 1991). This rule applies when dozens or even hundreds of alternative witnesses exist. In re Petroleum Products Antitrust Litig., 680 F.2d 5 (2d Cir.), cert. denied, Arizona v. McGraw-Hill, Inc., 459 U.S. 909 (1982). In addition, the Second Circuit has stated that an exhaustion claim is not met by only stating that discovery has not revealed the information sought. Blum v. Schlegel, 150 F.R.D. 42 (W.D.N.Y. 1993). The exhaustion argument is also not satisfied when the party seeking information deposes numerous witnesses during pre-trial discovery, but does not ask any of them if they were the source of the information. In re Petroleum Products Antitrust Litig., 680 F.2d 5 (2d Cir. 1982).

An example of a case where a party was not found to have satisfied the exhaustion requirement in seeking confidential information is United States v. Aponte-Vega, 1992 U.S. Dist. Lexis 7843, 20 Med. L. Rep. 2202 (S.D.N.Y. May 29, 1992) (court only addressed exhaustion requirement); see also United States v. Burke, 700 F.2d 70 (2d. Cir), cert. denied, 464 U.S. 816 (1983); In re Petroleum Products Antitrust Litig., 680 F.2d 5 (2d Cir. 1982); Baker v. F & F Inv., 470 F.2d 778 (2d Cir.), aff'g 339 F. Supp. 942 (S.D.N.Y. 1972), cert. denied, 411 U.S. 966 (1973); In re Pan Am Corp., 161 B.R. 577, 585 (S.D.N.Y. 1993) (court only addressed exhaustion requirement); Sommer v. PMEC Assoc. & Co., 1991 U.S. Dist. LEXIS 5697 (S.D.N.Y. May 1, 1991).

In Aponte-Vega, defendant subpoenaed the author of an article that reported that DEA agents were under investigation for falsifying evidence. 1992 U.S. Dist. Lexis 7843, 20 Med. L. Rep. 2202 (S.D.N.Y. May 29, 1992). Defendants sought to have the reporter reveal his confidential source, but the court held that the government could easily be used as an alternative source for the information and therefore a qualified privilege protected the reporter.

The exhaustion requirement has been met in several cases involving confidential information. See Umhey v. County of Orange, 957 F. Supp. 525 (S.D.N.Y. 1997) (motion to quash denied); Pellegrino v. New York Racing Ass'n, Inc., No. 96-CV-2315 (TCP) (E.D.N.Y. Aug. 22, 1996, modified Sept. 18, 1996) (motion to quash denied); Lipinski v. Skinner, 781 F. Supp. 131 (N.D.N.Y. 1991) (motion to quash denied). For example, in Lipinski, discussed above, the court held that only the editors could possibly reveal who originally told the newspaper that plaintiff had tested positive for HIV, thus the exhaustion requirement was met and plaintiff could depose the editors about the origin of the leak to the newspaper. Lipinski v. Skinner, 781 F. Supp. 131 (N.D.N.Y. 1991) (motion to quash denied).

Non-Confidential Information

In Gonzales, the Second Circuit stated that the standard for exhaustion involving non-confidential information is that the information be "not reasonably obtainable from other available sources." Gonzales v. National Broadcasting Co., 194 F.3d 29 (2d Cir. 1998). The Gonzales court held that the information reflected in the outtakes in that case was not reasonably obtainable from other sources "because they can provide unimpeachably objective evidence of Deputy Pierce's conduct." Gonzales, 194 F.3d at 36. The Second Circuit also disagreed with the district court that a deposition in this instance would be an adequate substitute for the information that could be obtained from the outtakes. Id.

An example of a situation in which non-confidential information was held not easily obtainable by other available sources is a matter involving survey responses collected for use in a report on alleged police misconduct during protests during the 2004 Republican National Convention in New York City. The city moved for an order enforcing a subpoena for documents from the NYCLU, which had commissioned the survey. The information was likely relevant to a significant issue in the case, and “equivalent information could be obtained only by subpoenaing and deposing the hundreds of nonparty witnesses who filled out the questionnaires.” Schiller v. City of New York, 245 F.R.D. 112, 120 (S.D.N.Y. 2007). Thus, the City’s motion to compel production was granted.

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a. How exhaustive must search be?

As mentioned above, "[a]t the very least, a party seeking to overcome a constitutional privilege on the basis of necessity must show that it has exhausted all other available non-privileged sources for the information." In re Pan Am Corp., 161 B.R. 577, 585 (S.D.N.Y. 1993). For example, in United States v. Aponte-Vega, the defendant could have obtained the information about an investigation of DEA agents falsifying evidence from the government instead of the journalist's confidential source. 1992 U.S. Dist. Lexis 7843, 20 Med. L. Rep. 2202 (S.D.N.Y. May 29, 1992). In contrast, in Lipinski v. Skinner, this standard was met because plaintiff could not obtain information about who initially disclosed his positive HIV test to the newspaper from any other non-privileged source. 781 F. Supp. 131 (N.D.N.Y. 1991) (motion to quash denied).

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

The Second Circuit has explained that disclosure may not be ordered when the party seeking information "fail[s] to carry their burden of first seeking the information elsewhere." In re Petroleum Products Antitrust Litig., 680 F.2d 5, 8 (2d Cir. 1982), cert. denied, Arizona v. McGraw-Hill, Inc., 459 U.S. 909 (1982).

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c. Source is an eyewitness to a crime

The Second Circuit has not specifically held that when a source is an eyewitness or participant to a crime, the information obtained from that source is by definition "unavailable" from any other source.

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3. Balancing of interests

In analyzing whether subpoenaed information is protected by the reporter's privilege, district courts in the Second Circuit had at times considered factors beyond those in the three-part Burke and Gonzales tests. For example, in Aequitron Med., Inc., a district court held that the privilege is weaker in a libel case against a media defendant where the plaintiff seeks non-confidential information. Without receiving information about confidential sources and the journalistic process it becomes very difficult for a libel plaintiff to prove actual malice, i.e., to establish that the defendant had knowledge or reckless disregard of the statement's falsity. Aequitron Med., Inc. v. CBS, Inc., 93 Civ. 950 (DC), 1995 U.S. Dist. LEXIS 9485 (S.D.N.Y. July 10, 1995). However, the Second Circuit held in U.S. v. Treacy that in the context of the Gonzales test, such balancing constituted error. 639 F.3d 32 (2d Cir. 2011) (“The district court committed an error of law when, instead of applying the test we set forth in Gonzales to evaluate Treacy's need for Forelle's answers, it treated Forelle's interest as a competing interest to be balanced against Treacy's Confrontation Clause rights.”).

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4. Subpoena not overbroad or unduly burdensome

Federal Rules of Civil Procedure 45(c)(1) and 45(c)(3)(A)(iv) state that a subpoena may not impose an undue burden. Federal Rule of Criminal Procedure 17(c) states that a subpoena may be quashed if it is unreasonable or oppressive.

The Second Circuit has stated that use of a subpoena for a fishing expedition is improper and blanket subpoenas are not permitted. Stratagem Dev. Corp. v. Heron Int'l N.V., 90 Civ. 6328 (SWK), 1992 U.S. Dist. LEXIS 14832, at *24-25 (S.D.N.Y. Sept. 30, 1992); see generally 9A Wright & Miller, Federal Practice and Procedure §§ 2457-2459 at 32-55. Courts have allowed parties to issue subpoenas that demand production of all documents in the recipient's custody or control relating to a certain specified matter or issue. 9A Wright & Miller, Federal Practice and Procedure § 2457 at 35. For example, in Polaroid Corp. v. Commerce Int'l Co., 20 F.R.D. 394 (S.D.N.Y. 1957), a patent infringement action, the court permitted a subpoena that called for all documents, records, books, memoranda, correspondence, and papers alluding to any facts or information received by the defendant or his agents. The subpoena had a list of categories that adequately described the documents plaintiff sought and that related to issues in the pleadings.

The Second Circuit also has stated that a subpoena may be quashed if it calls for clearly irrelevant matter. Anderson v. British Overseas Airways Corp., 149 F. Supp. 68 (S.D.N.Y. 1956) (stating that a subpoena will be quashed if it is burdensome in detail and under circumstances where no further evidence could affect a conclusion made by the court). If there is any ground on which the subpoena may be relevant, the court does not have to quash the subpoena. Commercial Metals Co. v. Int'l Union Marine Corp., 318 F. Supp. 1334 (S.D.N.Y. 1970) (denying motion to quash subpoena in contract dispute between shipowner and charterer because records showing profits earned by shipowner from alleged wrongful use of the ship during the charter period was relevant to the arbitrator's inquiry). Even if relevant evidence is sought, a subpoena still can be unreasonable or oppressive. See 9A Wright & Miller, Federal Practice and Procedure, § 2459 at 46.

Courts in the Second Circuit have found subpoenas to be unreasonable and oppressive for many reasons. For instance, a subpoena will be quashed if compliance would require violating the laws of another country, In re Equitable Plan Co., 185 F. Supp. 57 (S.D.N.Y. 1960); if the subpoena is used to get around an aspect of foreign law, Laker Airways Ltd. v. Pan American World Airways, 607 F. Supp. 324, 326 (S.D.N.Y. 1985); and if the subpoena calls for a huge mass of unidentified documents, which are not limited geographically or as to time. Austin Theatre, Inc. v. Warner Bros. Pictures, Inc., 30 F.R.D. 156, 158 (S.D.N.Y. 1958). A subpoena was also found unreasonable in an unlawful labor acts action, in which the discovering party asked for all bankbooks and statements, all communications with any clergy or clerical institution, all propaganda material, including any and all memoranda in connection with preparation of such propaganda, and all communication between defendant and any newspaper or semipublic agency. Aacon Contracting Co. v. Ass'n of Catholic Trade Unionists, 175 F. Supp. 659, 661-62 (S.D.N.Y. 1959). Further, in United States v. Watchmakers of Switzerland Information Center Inc., 27 F.R.D. 513, 515 (S.D.N.Y. 1961), the court held that a trial subpoena duces tecum was oppressive because the information sought by the discovering party could have been discovered through pre-trial discovery and inspection and would take months to compile. The court did give the subpoenaing party a right to examine and to be heard as to the relevance of the information submitted in response to the trial subpoena. Id.

There are also many Second Circuit decisions in which the court did not find subpoenas to be unreasonable or oppressive. For example, in United States v. Int'l Bus. Machs. Corp., 71 F.R.D. 88, 92 (S.D.N.Y. 1976), the court held that in light of the size and significance of the pending antitrust litigation a subpoena was reasonable, even if compliance with the subpoena would cost tens of thousands of dollars and would require three to six months. The court did modify and limit the subpoena. Id. In Atlantic Coast Insulating Co. v. United States, 34 F.R.D. 450, 453 (E.D.N.Y. 1964), the court held that a subpoena containing a broad request for the production of documents at a deposition was reasonable when the breadth was precautionary rather than harassing, and the discovering party was ignorant about the adversary's records.

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5. Threat to human life

There appears to be no statutory or caselaw in the Second Circuit addressing whether threat to human life is a factor the court should weigh in deciding whether privileged material should be disclosed.

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6. Material is not cumulative

Courts in the Second Circuit have noted that if material sought from a reporter is unduly cumulative of other evidence, it cannot be "necessary or critical to the maintenance of the claim." See United States v. Burke, 700 F.2d 70, 78 (2d. Cir. 1983); In re McCray, Richardson, Santana, Wise, and Salaam Litig., 928 F. Supp. 2d 748 (S.D.N.Y. 2013), aff'd sub nom. In re McCray, Richardson, Santana, Wise, Salaam Litig., 991 F. Supp. 2d 464 (S.D.N.Y. 2013); Application of Behar (Church of Scientology v. IRS), 779 F. Supp. 273, 275 (S.D.N.Y. 1991); United States v. Markiewicz, 732 F. Supp. 316, 321 (N.D.N.Y. 1990). For example in Application of Behar (Church of Scientology v. IRS), 779 F. Supp. 273 (S.D.N.Y. 1991), the Church of Scientology tried to obtain information from the IRS, but the IRS refused to disclose the information. The IRS cited an article written by Behar in Time magazine, which supported its claim that release of certain information would place persons in danger of harm from the church. The church then subpoenaed Behar regarding his communication with the IRS. The court held that the non-confidential information sought by the Church of Scientology from Behar was not necessary or critical because the IRS had 18 other pieces of evidence in support of the church's exemption claim and the information sought was therefore cumulative of other evidence. Behar, 779 F. Supp. at 275.

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7. Civil/criminal rules of procedure

Federal Rule of Civil Procedure 45(c)(2)(B) states that a party who is subpoenaed may submit a written objection to the subpoena within 14 days of service of the subpoena or before the time set for compliance, if less than 14 days. Rule 45(c)(3)(A) states that the court shall quash or modify the subpoena if it imposes an undue burden, does not allow for enough time to comply, requires a person to travel more than 100 miles (with exceptions) or requires disclosure of privileged information. Federal Rule of Criminal Procedure 17(c)(2) states that the court will quash a subpoena if it is unreasonable or oppressive.

The burden to establish that a subpoena is oppressive or unreasonable is on the party who seeks to have it quashed. See 9A Wright & Miller, Federal Practice and Procedure, § 2459 at 46. The party moving to quash cannot merely declare that complying with the subpoena would be burdensome without showing the reason why it would be burdensome and the extent of the burden and injury if the person is forced to comply. See United States v. Int'l Bus. Machs. Corp., 83 F.R.D. 97, 104 (S.D.N.Y.); see generally 9A Wright 7 Miller, Federal Practice and Procedure, § 2459 at 46-47. For examples of when this burden has and has not been deemed met, see infra Section VI.B.

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8. Other elements

The Second Circuit has not discussed other elements that are considered in deciding whether to enforce a subpoena besides the elements discussed above.

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C. Waiver or limits to testimony

1. Is the privilege waivable?

Under the First Amendment, reporters may waive the privilege. Shield Law statutes may have specific provisions for waiver of the privilege as well. See Baez v. JetBlue Airways, 09 CV 596 ENV RML, 2012 WL 5471229, at *2 (E.D.N.Y. Nov. 9, 2012) (finding privilege under New York Shield Law waived due to voluntary disclosure of information to a person “not otherwise entitled to claim the exemptions provided by [N.Y. Civ. Rights law § 79-h(g)”); see also In re Air Crash at Belle Harbor, New York on November 12, 2001, 241 F.R.D. 202, 204 (S.D.N.Y. 2007).

The source may not waive the privilege nor may the source invoke the privilege to protect information that the reporter may choose to reveal. See Small v. UPI, 1989 U.S. Dist. Lexis 12459 (S.D.N.Y. Oct. 20, 1989) (Roberts, Mag.).

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2. Elements of waiver

a. Disclosure of confidential source's name

There appears to be no statutory or caselaw addressing whether disclosure of a confidential source's name is an automatic waiver of privilege.

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b. Disclosure of non-confidential source's name

There appears to be no statutory or caselaw addressing whether the disclosure of a non-confidential source's name waives the privilege.

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c. Partial disclosure of information

There appears to be no appellate-level statutory or caselaw directly regarding a situation in which a journalist has waived the privilege by partially disclosing information from the source.  However, the Second Circuit has, in dicta, addressed the application of the “rule of completeness” embodied in the Federal Rules of Evidence to the journalists’ privilege:

The law of evidence embodies a rule of completeness requiring generally that adversaries be allowed to prevent omissions that render matters in evidence misleading. With regard to writings, one cannot introduce only the favorable portion of a document without the adversary successfully demanding production of the entire writing. Kenneth S. Broun et al., McCormick on Evidence § 93 (6th ed. 2007); Fed. R. Evid. 106. The same applies to testimony as to only part of a privileged communication: the remainder must also be produced.

Baker v. Goldman Sachs & Co., 669 F.3d 105, 111 (2d Cir. 2012); cf. United States v. Treacy, 639 F.3d 32, 44–45 (2d Cir. 2011).

A district court case decided before Baker shows how the applications of these principles might be limited in practice. In Lonegan v. Hasty, cv 04-2743 (NG) (VVP), 2008 WL 41445, at *5 (E.D.N.Y. 2008), defendants advanced an argument that plaintiffs had waived the privilege completely because the plaintiffs disclosed a portion of their notes of the interview with one of the sources in question. The court noted first that “any waiver by partial disclosure typically applies only when a party is attempting to gain some tactical advantage by a partial disclosure of privileged communications.” Moreover, waiver by partial disclosure “extends only to undisclosed communications about the same subject matter.” Lonegan v. Hasty, CV04-2743(NG)(VVP), 2008 WL 41445, at *5 (E.D.N.Y. 2008) (emphasis added). Thus, the court rejected defendant’s argument that the reporters privilege had been waived as to all sources and information.

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d. Other elements

The following four cases discuss waiver in situations in which the reporter has not revealed or partially disclosed information from a source.

Failure to provide a privilege log may waive the qualified privilege, as it would “in the same manner as any other litigant—providing a privilege log enumerating the documents as to which privilege is claimed and including as to each such information as may be necessary to make out his claim of qualified journalist privilege.” See In re Application of Chevron Corp., 736 F.Supp.2d 773, 782 (S.D.N.Y.2010); In re Application of Chevron Corp., 709 F. Supp. 2d 283, 306 n.40 (S.D.N.Y. 2010) (“The failure to [submit a log] generally constitutes a waiver of any claim of privilege”), aff'd sub nom. Chevron Corp. v. Berlinger, 629 F.3d 297 (2d Cir. 2011); but see Schoolcraft v. City of New York, 10 CIV. 6005 RWS, 2014 WL 1621480, at *5 (S.D.N.Y. Apr. 22, 2014).

In Inside Radio, Inc. v. Clear Channel Comm. Inc., 2002 U.S. Dist. LEXIS 11982 (S.D.N.Y. July 3, 2002), Inside Radio, Inc. ("IRI") alleged Clear Channel Communications ("CCC") libeled IRI in various articles when it asserted that IRI knowingly published false statements about CCC. As part of its defense, CCC requested the identity of the confidential source for IRI's stories about CCC. The question for the court was whether IRI waived privilege by putting the identity of its source at issue in asserting its claims against CCC. Id. at *8. In determining this, the court applied the Burke standard used to determine disclosure of sources. Id. at *10. Because the identity of IRI's source was (1) highly material and relevant, (2) necessary to the defense because IRI claimed CCC libeled it by charging it deliberately lied, and (3) unable to be obtained through other means, IRI had waived the privilege. Id. at *19.

The issue in Driscoll v. Morris, 111 F.R.D. 459 (D. Conn. 1986) was the same as Inside Radio. A reporter brought a defamation claim alleging defendant falsely informed people that he illegally obtained grand jury information from a confidential source. As an element of damages, plaintiff claimed the defendant's statements affected his relationships with confidential sources. Because plaintiff put the identity of his sources at issue, he waived the privilege. Id. at 464.

In United States v. Markiewicz, 732 F. Supp. 316 (N.D.N.Y. 1990), the court acknowledged that "at least one court has determined that a reporter's qualified privilege is waived if he or she submits to an interview or files an affidavit detailing the substance of the conversation with respect to which he is asked to testify." Id. at 320 (referring to Pinkard v. Johnson, 118 F.R.D. 517, 523 (M.D. Ala. 1987)). The issue of waiver was not relevant to the present case.

In Pugh v. Avis Rent A Car Sys., Inc., 1997 U.S. Dist. LEXIS 16671, 26 Med. L. Rptr. 1311 (S.D.N.Y. Oct. 28, 1997), the court held that the presence of third parties not entitled to assert the privilege at interviews conducted by a media entity (CBS in this case) does not constitute an automatic waiver of the privilege by the media entity. A subpoena for outtakes of the interviews was quashed.

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3. Agreement to partially testify act as waiver?

There do not appear to be any cases that specifically state whether the privilege is waived if the reporter agrees to partially testify -- for example, to confirm that the story as published is accurate and true.

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VII. What constitutes compliance?

A. Newspaper articles

Under Federal Rule of Evidence 902(6), newspapers are self-authenticating. This rule automatically authenticates that the article was published -- it does not authenticate the truth or accuracy of the contents.
The truth of the contents of an article can be authenticated by stipulation. If the reporter or media entity is a non-party, a stipulation with one party might be opposed by a different party, in which case it may be necessary that the reporter or employee of the newspaper testify. If a representative of the subpoenaed media entity must testify, it is often best to put forth an individual who works in an administrative capacity so as to limit the scope of topics investigated during examination.

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B. Broadcast materials

When a broadcast reporter or entity is subpoenaed to turn over tapes that were aired, a stipulation may often be advisable. If live testimony is required, a non-reporter representative, such as a custodian of records or videotape librarian, may be able to authenticate tapes that were aired. In a criminal trial it may not be sufficient to use a representative because of Sixth Amendment confrontation clause issues.

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C. Testimony vs. affidavits

A sworn affidavit, which would accompany a stipulation that an article was true and accurate as published or that a broadcast was aired and is accurate, may be sufficient in lieu of in-court testimony. All parties typically would have to agree to this procedure.

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D. Non-compliance remedies

1. Civil contempt

a. Fines

There is a wide range of fines that could be levied if a reporter or media entity is held in contempt. In In re National Broadcasting Co. (Krase v. Graco Children Products, Inc.), 79 F.3d 346 (2d Cir. 1996), the appeals court reversed a district court fine of $5,000 a day for contempt of court. In Graco, which involved an application of New York's state shield law, the district court ordered NBC, a non-party in a products liability suit, to produce and testify about certain outtakes of televised interviews that defendants subpoenaed, including interviews with plaintiff's counsel on "Dateline." The district court fined NBC $5,000 a day until it produced the outtakes. The Second Circuit reversed the order because defendants had not satisfied the "necessary and critical" and "exhaustion" prongs of New York's Shield Law. [The district court also denied NBC's motion to stay the sanctions pending appeal. The Second Circuit granted NBC's stay motion and ordered that the appeal be heard on an expedited basis. 79 F.3d at 350.]

In Von Bulow v. Von Bulow, the Second Circuit affirmed a fine of $500 a day. 811 F.2d 136, 138, 147 (2d Cir. 1987) (the district court stayed the fine until the Second Circuit ruled on the validity of the contempt order). In Von Bulow, the district court ordered that the author of a manuscript on the accused murderer Claus von Bulow turn over her written notes and materials, including reports on the lifestyles of von Bulow's wife's children and the author's personal notes on the trial of Claus von Bulow. The Second Circuit did not allow the author to benefit from the reporter's privilege because she did not gather the "information initially for purposes other than to disseminate information to the public." Id. at 146. (For more discussion on Von Bulow, see infra Section IV.A.2.).

In United States v. Cutler, the Second Circuit affirmed a fine of $1.00 per day. United States v. Cutler, 6 F.3d 67, 70, 75 (2d Cir. 1993) (the district court stayed the fine pending an expedited appeal). During the trial of John Gotti, Cutler, Gotti's attorney, was charged with criminal contempt following his public comments about the case in violation of a court order. Cutler subpoenaed reporters and TV stations to obtain unpublished notes, video outtakes and testimony regarding interviews with him and statements by government officials. The district court held the reporters in contempt for refusing to provide these materials to Cutler. The Second Circuit ordered the reporters and TV stations to disclose their unpublished notes, video outtakes and testimony about Cutler. Id. at 73-74. Cutler was held not entitled to the same types of information about government officials that were involved in the case. Id. at 74-75. (For more discussion on Cutler, see Sections I and II.).

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b. Jail

In 1972, in U. S. ex rel. Goodman v. Kehl, 456 F.2d 863 (2d Cir. 1972), the Second Circuit affirmed a 30-day jail sentence for a radio station manager who refused to turn over tapes in compliance with a court order. There appear to be no cases in the Second Circuit since Kehl in which a reporter was jailed for refusing to disclose information.

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2. Criminal contempt

There are very few cases in which a reporter has been held in criminal contempt for not revealing information. In Garland v. Torre, 259 F.2d 545 (2d Cir.), cert. denied, 358 U.S. 910 (1958), a reporter allegedly libeled actress Judy Garland. The reporter refused to reveal her source, and she was held in criminal contempt. The main justification for compelling disclosure and levying criminal contempt was that the reporter's source was essential to Garland's libel claim.

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3. Other remedies

There appear to be no other remedies for non-compliance in the Second Circuit.

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VIII. Appealing

A. Timing

1. Interlocutory appeals

The general rule (subject to a few very limited exceptions) is that the Second Circuit has no appellate jurisdiction “over a non-party lawyer’s appeal from a district court order directing him to produce documents and appear for a deposition . . . where the lawyer has not disobeyed the order and been held in contempt.”  In re Air Crash at Belle Harbor, New York on November 12, 2001, 490 F.3d 99 (2d Cir. 2007).

The rule for the timing of interlocutory appeals is that a litigant may appeal a district court order that is construed as a final appealable order if the appeal is made within ten days of the district court order. See 28 U.S.C. § 1292(b). Orders denying or mandating discovery are non-appealable interlocutory decisions. See Baker v. F & F Inv., 470 F.2d 778, 780 n.3 (2d Cir. 1972). In general, interlocutory appeals are not permitted for matters related to discovery, but under 28 U.S.C. 1292(b), the appeals court has discretion to take these appeals from an order by the district court. Although interlocutory appeals of discovery orders are usually not allowed, one may apply to the Second Circuit for a writ of mandamus compelling the trial court to reverse or modify its order. The standard for reviewing these applications is highly deferential to the trial court. A judgment of contempt involving a non-party is considered a final appealable judgment. See Von Bulow v. Von Bulow, 811 F.2d 136, 138 (2d Cir. 1987). A judgment of contempt involving a party may not constitute a final appealable judgment. See International Bus. Mach. Corp. v. United States, 493 F.2d 112 (2d Cir. 1973), cert. denied, 416 U.S. 995 (1974).

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2. Expedited appeals

Rule 2 of the Rules of the Second Circuit, which mirrors Rule 2 of the Federal Rules of Appellate Procedure, gives the court discretion in whether to grant an expedited appeal. Both rules state: "On its own or a party's motion, a court of appeals may -- to expedite its decision or for other good cause -- suspend any provision of these rules in a particular case and order proceedings as it directs, except as otherwise provided in Rule 26(b)."
The appellate process in the Second Circuit is commenced by filing a notice of appeal with a copy of the Order or Judgment entered and paying a $505 filing fee. The appellant can serve copies of the Notice of Appeal on all parties, but must provide the Clerk's office with the original notice and enough copies and envelopes for service. Subsequent to the filing of a Second Circuit Notice of Appeal, the appellant has ten days to file Form C and Form D, which are pre-argument statement forms and transcript information, respectively. The pre-argument statement form must be filed with a copy of the underlying decision or judgment that is being appealed. For an expedited appeal, the appellant must also serve and file one original and four copies of a motion requesting an expedited appeal with supporting affidavits and a brief. The motion is a Second Circuit standard form, which must be used. For the particular rules of any court in the Second Circuit, go to http://www.uscourts.gov/rules-policies.

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B. Procedure

1. To whom is the appeal made?

The United States Court of Appeals accepts appeals from the federal district courts in the circuit. In the event that a magistrate levies a contempt citation, it is necessary to appeal to the district court. Falise v. American Tobacco Co., 2000 WL 264332, at *1 (E.D.N.Y. 2000).

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2. Stays pending appeal

The procedure for filing a stay pending appeal in the Second Circuit is governed by Rule 8 of the Rules of the Second Circuit, which adopts Rule 8 of the Federal Rules of Appellate Procedure. To receive a stay, a party must ordinarily first file in the district court. To move for a stay in the Second Circuit, the party must show that moving in the district court would be impracticable or state that a motion has been made to the district court and that the district court either denied it or failed to afford the relief request. It is necessary to state any reasons the district court gave for its decision. The motion must also include the reasons the Second Circuit should grant the relief requested and the facts relied on, originals or copies of affidavits or other sworn statements supporting disputed facts, and pertinent parts of the record. The party filing the motion for a stay must give reasonable notice of the motion to all parties. A motion for a stay must be filed with the circuit clerk and is normally considered by a panel of the Second Circuit. In exceptional cases, in which time requirements make that procedure impracticable, the motion may be made to and considered by a single judge. The court may condition relief on a party's filing a bond or other appropriate security in the district court. For the particular rules of any court in the Second Circuit, go to http://www.uscourts.gov/rules-policies.

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3. Nature of appeal

A non-party has an appeal by right when a judgment of contempt is levied. See Von Bulow v. Von Bulow, 811 F.2d 136, 138 (2d Cir. 1987).

As stated above, interlocutory appeals are generally not permitted for matters related to discovery, but under 28 U.S.C. § 1292(b), the appeals court has discretion to take these appeals from an order by the district court.

A writ of mandamus may be sought when the trial court denies or grants discovery. Courts in other circuits have stated that the standard of review for a writ of mandamus in a case involving the reporter's privilege is whether the trial court's determination was "clearly erroneous." See, e.g., Star Editorial, Inc. v. United States Dist. Ct., 7 F.3d 856 (9th Cir. 1993).

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4. Standard of review

The Second Circuit reviews the district court's decision whether or not to quash a subpoena for abuse of discretion. See Logan v. Bennington College Corp., 72 F.3d 1017, 1027 (2d Cir. 1995) (civil subpoenas); United States v. Caming, 968 F.2d 232, 238 (2d Cir. 1992) (criminal subpoenas); United States v. Sanders, 211 F.3d 711 (2d Cir. 2000) ("We review a district court decision to quash, or not quash, a grand jury subpoena, solely for abuse of discretion, with much deference being owed to the lower court's authority.") (quoting In re Grand Jury Matters, 751 F.2d 13, 16 (2d Cir. 1984)).

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5. Addressing mootness questions

The Second Circuit does not appear to have addressed the issue of mootness when the trial or grand jury session for which a reporter was subpoenaed has ended.

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6. Relief

If the district court refuses to quash a subpoena and the party trying to protect the information is held in contempt, the party protecting the information can appeal to the Second Circuit to quash the subpoena. If the Second Circuit disagrees with the court's decision to refuse to quash the subpoena, the Second Circuit has vacated the contempt citation rather than ordering the trial judge to reconsider the issues at stake. See, e.g., In re Dow Jones & Co., 182 F.3d 899 (2d Cir. 1999) (unpublished); In re Petroleum Products Antitrust Litig., 680 F.2d 5 (2d Cir. 1982), cert. denied, Arizona v. McGraw-Hill, Inc., 459 U.S. 909 (1982).

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IX. Other issues

A. Newsroom searches

The federal Privacy Protection Act (42 U.S.C. § 2000aa), which does not appear to have been litigated at the appellate level in the Second Circuit, gives protection to journalists from overly intrusive government searches of newsroom offices. The Act divides materials into "work product" materials and "documentary" materials. Work product materials are defined as materials (other than things criminally possessed or used as a means of committing a crime, see, e.g., U.S. v. Hunter, 13 F. Supp. 2d 574, 582 (D. Vt. 1998) (Privacy Protection Act did not protect attorney publishing newsletter out of his office “because the government had [probable cause] to believe that he had committed a criminal offense”)) which are created in anticipation of communication to the public, are possessed for the purpose of communicating such materials to the public, and include the impressions, conclusions, opinions or theories of the creator. Documentary materials are defined as materials on which information is recorded, excluding things illegally possessed and property designed, intended or used to commit a crime. 42 U.S.C. § 2000aa-7(a), (b).

For work product materials, the Act makes it illegal for a federal, state or local government official, in connection with the investigation or prosecution of a criminal offense, to search for or seize such materials possessed by a person reasonably believed to intend to disseminate a public communication, such as a newspaper, book or broadcast, in or affecting interstate or foreign commerce. (For exceptions to this rule, see 42 U.S.C. § 2000aa(a)(1), (2).) For documentary materials, the Act makes it illegal for an official to search for or seize such materials possessed by a person in connection with a purpose to disseminate a public communication in or affecting interstate or foreign commerce. (For exceptions to this rule, see 42 U.S.C. § 2000aa(b)(1)-(4).)

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B. Separation orders

There appears to be no case or statutory law regarding separation orders in the reporter's privilege context in the Second Circuit. If it is not possible to defeat a motion for a separation order, it is advisable to try to narrow the order to just a part of the trial (e.g., when the reporter is both covering the trial and is a witness, agree to have the reporter exit the room only during portions of the trial involving a subject about which the reporter will testify).

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C. Third-party subpoenas

Third parties who play an "integral role" in a reporter's work are protected by the same privileges afforded to reporters in the Second Circuit. N.Y. Times Co. v. Gonzales, 459 F.3d 160 (2d Cir. 2006). In Gonzales, the Second Circuit explicitly held that "whatever rights a newspaper or reporter has to refuse disclosure in response to a subpoena extends to the newspaper's or reporter's telephone records in the possession of a third party provider." Id. at 163.

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D. The source's rights and interests

The reporter's privilege is held by the reporter, not the source. Thus, the source cannot prevent disclosure of information relayed to the reporter if the reporter chooses not to invoke the reporter's privilege. Small v. UPI, 1989 U.S. Dist. Lexis 12459 (S.D.N.Y. Oct. 20, 1989) (Roberts, Mag.).

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