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4th Circuit

Reporter's Privilege Compendium

Mark I. Bailen
Katherine L. McKnight
Benjamin J. Irwin
Baker & Hostetler LLP
Washington Square, Suite 1100
1050 Connecticut Avenue, Northwest
Washington, D.C. 20036-5304
Telephone (202) 861-1500
Facsimile (202) 861-1783

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I. Introduction: History & Background

The Fourth Circuit has been less aggressive than many of its counterparts in enunciating a reporter’s privilege. The Court first explored a testimonial privilege in 1976 but indicated that to invoke the privilege, a journalist must claim confidentiality of the information sought or vindictiveness on the part of the questioning party. United States v. Steelhammer, 539 F.2d 273 (4th Cir. 1976), rev’d en banc, 561 F.2d 539 (4th Cir. 1977). In LaRouche v. Nat’l Broadcasting Co., Inc., 780 F.2d 1134, 12 Media L. Rep. 1585 (4th Cir. 1986), cert. denied, 479 U.S. 818 (1986), the Fourth Circuit followed several Circuits in adopting a balancing test for determining whether a reporter’s privilege will protect a confidential source-reporter relationship. The applicability of the privilege and the balancing test to nonconfidential information remained unclear, however. See In re Shain, 978 F.2d 850, 20 Media L. Rep. 1930 (4th Cir. 1992) (relying upon Steelhammer to hold that the absence of confidentiality or vindictiveness fatally undermined the reporter’s claim to a First Amendment privilege for nonconfidential information obtained from a nonconfidential source).  Most recently, the Fourth Circuit held that no reporter’s privilege may be asserted in a criminal proceeding for a confidential source where the government seeks, in good faith, evidence central to the prosecution that the reporter alone possesses. United States v. Sterling, 724 F.3d 482 (4th Cir. 2013) (finding LaRouche offers no authority to recognize a First Amendment reporter’s privilege in a criminal proceeding).  Nevertheless, the Fourth Circuit’s recent decisions indicate the vitality of a qualified First Amendment privilege in the civil context for both confidential and nonconfidential sources and information.

In Church of Scientology Int’l v. Daniels, 992 F.2d 1329, 21 Media L. Rep. 1426 (4th Cir. 1993), cert. denied 510 U.S. 869 (1993), the Church sued a drug company executive for libel based on a statement made by the executive in a USA Today editorial board meeting and published by the newspaper. The Church moved to compel production by USA Today of materials relating to the board meeting, even though the executive offered to stipulate to the quotation’s accuracy. The Fourth Circuit, in affirming the district court’s denial of the Church’s motion, applied the LaRouche balancing test despite the nonconfidential nature of the information sought and the absence of vindictiveness. Id. at 1335. Lower courts have followed, expanding the qualified privilege to encompass nonconfidential information. See Food Lion Inc. v. Capital Cities/ABC Inc., 951 F. Supp. 1211, 25 Media L. Rep. 1182 (M.D.N.C. 1996) (applying a modified balancing test in permitting limited discovery of nonconfidential hidden camera investigations); Penland v. Long, 922 F. Supp. 1080, 24 Media L. Rep. 1410 (W.D.N.C. 1995) (applying LaRouche test in granting motion to quash plaintiffs’ subpoena for nonconfidential information on interviews with defendant).

The Fourth Circuit in Ashcraft v. Conoco, Inc. reinforced the application of a reporter’s privilege and balancing test where the protection of confidential news sources or information is threatened in civil matters. 218 F.3d 282, 28 Media L. Rep. 2103 (4th Cir. 2000). Cory Reiss, a reporter for the Wilmington, N.C., Morning Star, was found in civil contempt and ordered to an indefinite term of imprisonment for refusing to disclose his sources of information about an allegedly confidential, $36 million court settlement. Id. at 286. Before Mr. Reiss was required to report to jail, the Fourth Circuit stayed the order pending appeal, and on appeal the Court found that under its LaRouche test, the state had not asserted a compelling interest sufficient to overcome Reiss’ privilege to withhold the names of his confidential sources. Id. at 288.

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II. Authority for and source of the right

The reporter’s privilege in the Fourth Circuit was developed in the wake of the Supreme Court’s decision in Branzburg v. Hayes, 408 U.S. 665 (1972). First the Eastern District of Virginia in Gilbert v. Allied Chemical Corp., 411 F. Supp. 505 (E.D. Va. 1976), and then the Fourth Circuit in United States v. Steelhammer, 539 F.2d 273 (4th Cir. 1976), rev’d en banc, 561 F.2d 539 (4th Cir. 1977), construed the limited holding of Branzburg as permitting a reporter’s privilege in some cases. Justice Powell’s concurrence in Branzburg, advocating a “balance of vital constitutional and societal interests,” provided the framework for the three-part test adopted by the Fourth Circuit in LaRouche v. National Broadcasting Co., 780 F.2d 1134, 12 Media L. Rep. 1585 (4th Cir. 1986), cert. denied, 479 U.S. 818 (1986): “(1) whether the information is relevant, (2) whether the information can be obtained by alternative means; and (3) whether there is a compelling interest in the information.” Id. at 1139.

Though state shield laws are discussed in depth in the individual state sections, it should be noted here that four of the five states in the Fourth Circuit -- Maryland, North Carolina, South Carolina, and West Virginia -- have enacted shield laws that offer journalists varying degrees of protection for sources and information. See Md. Code Ann., Cts. & Jud. Proc. § 9-112 (1992); N.C. Gen. Stat. Ch. 8, Art. 7 § 8-53.11 (1999); S.C. Code § 19-11-100 (1995); W. Va. Code 57-3-10 (2011). All these shield laws were cited in Sterling as part of the Court’s review of “the policy decisions of the States” and how they bear on the question of whether federal courts should recognize a new privilege or amend coverage of an existing one.  United States v. Sterling, 724 F.3d 482 (4th Cir. 2013).  South Carolina’s shield law was raised as a defense to providing testimony in McCoy v. City of Columbia but the Court found that the reporter was not acting in her capacity as a news gathering journalist when she spoke with plaintiff in that case, and denied movant’s motion to quash defendant’s subpoena to testify.  McCoy v. City of Columbia, 2012 WL 2327785 *2 (D.S.C. June 19, 2012).

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A. Shield law statute

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B. State constitutional provision

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C. Federal constitutional provision

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D. Other sources

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III. Scope of protection

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A. Generally

Compared to that of the other circuits’ privilege laws, the scope of protection provided by the reporter’s privilege in the Fourth Circuit falls in the middle of the spectrum. Unlike several other circuits, the Fourth Circuit has not stated explicitly that nonconfidential information from nonconfidential sources is protected by the same privilege as confidential information. Compare Gonzales v. Nat’l Broadcasting Co., 194 F.3d 29 (2d Cir. 1999); Shoen v. Shoen, 5 F.3d 1289, 1294 (9th Cir. 1993); United States v. LaRouche Campaign, 841 F.2d 1176, 1182 (1st Cir. 1988); United States v. Cuthbertson, 630 F.2d 139, 147 (3d Cir. 1980). However, neither has the Fourth Circuit explicitly rejected a qualified privilege for nonconfidential information in a civil context, as the Fifth Circuit did in United States v. Smith, 135 F.3d 963 (5th Cir. 1998) for criminal proceedings. Indeed, lower courts are applying Fourth Circuit precedent to find that a qualified privilege exists in civil cases for nonconfidential information.  See, e.g., Federico v. Lincoln Military Housing, LLC, 42 Media L. Rep. 2472, *3-4 (E.D. Va. Aug. 13, 2014).

The Fourth Circuit, in United States v. Sterling, 724 F.3d 482, 492 (4th Cir. 2013), draws a clear line between the applicability of the reporter’s privilege in civil and criminal contexts, declining to apply the privilege in a criminal proceeding, absent a showing of bad faith or other such improper motive.  However, in other contexts the result has been a mixed bag of decisions.  In Church of Scientology Int’l v. Daniels, the Fourth Circuit applied the LaRouche v. Nat’l Broadcasting Co. balancing test in spite of the nonconfidential nature of the information sought by the libel plaintiff church from USA Today, a third party. Church of Scientology, 992 F.2d 1329, 1335, 21 Media L. Rep. 1426 (4th Cir. 1993), cert. denied 510 U.S. 869 (1993); LaRouche, 780 F.2d 1134, 1139, 12 Media L. Rep. 1585 (4th Cir. 1986), cert. denied, 479 U.S. 818 (1986). Still, district courts since Church of Scientology have varied in their application of the LaRouche test to nonconfidential information. See United States v. King, 194 F.R.D. 569 (E.D. Va. 2000) (holding there is no privilege without a showing of confidentiality or harassment by the seeking party); Penland v. Long, 922 F. Supp. 1080, 24 Media L. Rep. 1410 (W.D.N.C. 1995) (holding a qualified privilege exists for nonconfidential information).

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B. Absolute or qualified privilege

The Fourth Circuit does not recognize an absolute privilege against disclosure. Even when a journalist is attempting to protect the identities of confidential sources -- likely the strongest case for a reporter’s privilege -- the courts of the Fourth Circuit balance the interests involved using the three-part test put forth in LaRouche: “(1) whether the information is relevant, (2) whether the information can be obtained by alternative means; and (3) whether there is a compelling interest in the information.” 780 F.2d at 1139.  Notably, these factors are only applicable in a civil context, and have no authority to recognize a privilege in a criminal proceeding.  Sterling, 724 F.3d at 497.  Though one district court recently maintained that a showing of confidentiality and harassment by the seeking party is a predicate for conducting a balancing analysis, Church of Scientology provides a strong indication that the Fourth Circuit intends its LaRouche test to be used to evaluate requests for nonconfidential information as well. Church of Scientology, 992 F.2d at 1335; see also Food Lion Inc. v. Capital Cities/ABC Inc., 951 F. Supp. 1211, 1214, 25 Media L. Rep. 1182 (M.D.N.C. 1996) (applying a modified balancing test in permitting limited discovery of nonconfidential hidden camera investigations); Penland, 922 F. Supp. at 1084 (applying LaRouche test in granting motion to quash plaintiffs’ subpoena for nonconfidential information on interviews with defendant); contra United States v. Lindh, 210 F. Supp. 2d 780, 783 (holding there is no First Amendment privilege without a showing of confidentiality or harassment by the seeking party); King, 194 F.R.D. at 584-85 (same).

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C. Type of case

Most of the reporter’s privilege cases in the Fourth Circuit have arisen in the civil context. The Fourth Circuit first discussed a testimonial privilege in United States v. Steelhammer, in which reporters for the Charleston Gazette were summoned to testify in a civil contempt hearing. 539 F.2d 273 (4th Cir. 1976), rev’d en banc, 561 F.2d 539 (4th Cir. 1977). The Fourth Circuit introduced its balancing test for confidential information in the context of a civil defamation case. LaRouche, 780 F.2d at 1135. In Church of Scientology, also a civil defamation case but with the media as a third party, the Fourth Circuit indicated its intention to apply its LaRouche test to nonconfidential information as well. Church of Scientology, 992 F.2d at 1335. More recently, the Fourth Circuit in Ashcraft v. Conoco, Inc., an environmental torts suit, reinforced the application of a reporter’s privilege for confidential news sources or information. 218 F.3d 282, 28 Media L. Rep. 2103 (4th Cir. 2000).

At the district court level, the most protective opinions have come in civil cases. In Bischoff v. United States, 25 Media L. Rep. 1286 (E.D. Va. 1996), a reporter for the Houston Post was subpoenaed to testify in a suit brought by the two plaintiffs against the United States, alleging that FBI and IRS employees unlawfully published their confidential tax information. The reporter moved to quash the subpoena, arguing that his only relevant information was obtained from a confidential source, and the district court granted the motion, holding that a qualified privilege exists in a civil action even where a reporter is believed to have first-hand evidence of criminal conduct. Id. at 1287-88. In Penland, former prison employees brought a civil rights and defamation suit against a sheriff and subpoenaed from a local newspaper and television station both confidential and nonconfidential information surrounding their interviews with the sheriff. Penland, 922 F. Supp. at 1082. The district court granted the motion to quash and issued a protective order, applying the LaRouche test and holding the privilege outweighed the need for the information. Id. at 1084.In Stickels v. General Rental Co., 750 F. Supp. 729, 18 Media L. Rep. 1644 (E.D. Va. 1990), a local newspaper reporter challenged a tort defendant’s subpoena of photos and negatives of the accident at issue. Though the court ultimately denied the motion to quash the subpoena, it applied the LaRouche test to nonconfidential information.  Finally, in Livingston v. Kehagias, 2018 WL 1278190 at *2-3 (E.D.N.C. March 12, 2018), the court found that each element of the LaRouche test counseled in favor of quashing the subpoena served on a local newspaper in Charlotte, North Carolina.  The court stated that, “as an initial matter, this Court reaffirms its commitment to a free and uninhibited press contributing to the robust and unfettered debate characteristic of our society.  At the same time, this Court is aware that a generation of Supreme Court jurisprudence suggests that the First Amendment does not provide the press an absolute shield from legal process.”  Id. at *2.

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1. Civil

Most of the reporter’s privilege cases in the Fourth Circuit have arisen in the civil context. The Fourth Circuit first discussed a testimonial privilege in United States v. Steelhammer, in which reporters for the Charleston Gazette were summoned to testify in a civil contempt hearing. 539 F.2d 273 (4th Cir. 1976), rev’d en banc, 561 F.2d 539 (4th Cir. 1977). The Fourth Circuit introduced its balancing test for confidential information in the context of a civil defamation case. LaRouche, 780 F.2d at 1135. In Church of Scientology, also a civil defamation case but with the media as a third party, the Fourth Circuit indicated its intention to apply its LaRouche test to nonconfidential information as well. Church of Scientology, 992 F.2d at 1335. More recently, the Fourth Circuit in Ashcraft v. Conoco, Inc., an environmental torts suit, reinforced the application of a reporter’s privilege for confidential news sources or information. 218 F.3d 282, 28 Media L. Rep. 2103 (4th Cir. 2000).

At the district court level, the most protective opinions have come in civil cases. In Bischoff v. United States, 25 Media L. Rep. 1286 (E.D. Va. 1996), a reporter for the Houston Post was subpoenaed to testify in a suit brought by the two plaintiffs against the United States, alleging that FBI and IRS employees unlawfully published their confidential tax information. The reporter moved to quash the subpoena, arguing that his only relevant information was obtained from a confidential source, and the district court granted the motion, holding that a qualified privilege exists in a civil action even where a reporter is believed to have first-hand evidence of criminal conduct. Id. at 1287-88. In Penland, former prison employees brought a civil rights and defamation suit against a sheriff and subpoenaed from a local newspaper and television station both confidential and nonconfidential information surrounding their interviews with the sheriff. Penland, 922 F. Supp. at 1082. The district court granted the motion to quash and issued a protective order, applying the LaRouche test and holding the privilege outweighed the need for the information. Id. at 1084.In Stickels v. General Rental Co., 750 F. Supp. 729, 18 Media L. Rep. 1644 (E.D. Va. 1990), a local newspaper reporter challenged a tort defendant’s subpoena of photos and negatives of the accident at issue. Though the court ultimately denied the motion to quash the subpoena, it applied the LaRouche test to nonconfidential information.  Finally, in Livingston v. Kehagias, 2018 WL 1278190 at *2-3 (E.D.N.C. March 12, 2018), the court found that each element of the LaRouche test counseled in favor of quashing the subpoena served on a local newspaper in Charlotte, North Carolina.  The court stated that, “as an initial matter, this Court reaffirms its commitment to a free and uninhibited press contributing to the robust and unfettered debate characteristic of our society.  At the same time, this Court is aware that a generation of Supreme Court jurisprudence suggests that the First Amendment does not provide the press an absolute shield from legal process.”  Id. at *2.

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2. Criminal

In United States v. Sterling, 724 F.3d 482 (4th Cir. 2013) the Fourth Circuit directly addressed whether a reporter’s privilege can be asserted in criminal proceedings. In Sterling a former Central Intelligence Agency officer was prosecuted for disclosing classified information, which was published by a journalist in a national newspaper. Id. at 488-490.  The government issued a subpoena to compel the journalist’s testimony about his confidential source, the defendant. Id.  The district court granted the journalist’s motion to quash the subpoenas based on a reporter’s privilege. Id.  In a 2-1 ruling, the Fourth Circuit reversed this decision and determined that reporters are entitled to no special privilege in a criminal proceeding that would allow them to withhold relevant information about criminal conduct without a showing of bad faith or other such improper motive. Id. at 492.

The majority opinion in Sterling is clear and unambiguous:

There is no First Amendment testimonial privilege, absolute or qualified, that protects a reporter from being compelled to testify by the prosecution or the defense in criminal proceedings about criminal conduct that the reporter personally witnessed or participated in, absent a showing of bad faith, harassment, or other such nonlegitimate motive, even though the reporter promised confidentiality to his source.

Id.  Sterling relies on the Supreme Court’s decision in Branzburg to reject the existence of a reporter’s privilege in a criminal proceeding. Id. at 496.  As with the reporters in Branzburg, the journalist in Sterling had direct information concerning the commission of serious crimes.  Indeed the journalist had the only first-hand account of the crimes.  Id. at 492.  However, Sterling appears to leave open a few avenues, as discussed in Branzburg, for reporters to invoke the privilege during a criminal proceeding where the government acts in bad faith.  In particular, this could include presenting evidence that (1) the subpoena was issued by the government in bad faith, for purposes of harassment, (2) the subpoena required the journalist to provide information with a “remote” or “tenuous” connection to the investigation and there was reason believe law enforcement had no legitimate need, or (3) the subpoena was an attempt by the authorities to “annex the news media as an investigative arm of the government.” Id. at 498-499.

Sterling also recognized that Fourth Circuit precedent, in Shain, directs the Court to make a clear distinction between enforcing subpoenas issued to reporters in criminal proceedings and enforcing subpoenas issued to reporters in civil litigation. Id. at 498.  In In re Shain, 978 F.2d 850, 20 Media L. Rep. 1930 (4th Cir. 1992), a South Carolina senator was indicted for accepting a bribe in violation of federal law.  To present evidence of intent, the prosecution subpoenaed four reporters to have them confirm in testimony that the senator had made the false statements they reported. The district court denied the reporters’ motions to quash, and after the reporters asserted privilege at trial, they were held in contempt and ordered to be confined for the two days of the trial. Id. at 852.

In Shain the Fourth Circuit affirmed the denial of the motions to quash, finding that absent evidence of confidentiality or governmental harassment, reporters may not assert a First Amendment privilege. Id. at 853. As Sterling recognized, Shain did not extend the LaRouche factors to criminal proceedings and followed Branzburg to hold that “absent evidence of governmental harassment or bad faith, the reporters have no privilege different from that of any other citizen not to testify about knowledge relevant to a criminal prosecution.”  Sterling, 724 F.3d at 497.  On one point, at least, Sterling’s reliance on Shain may be qualified by Shain’s questionable interpretation of Steelhammer as stating that “only when evidence of harassment is presented do we balance the interests involved.” Id. at 498. (Steelhammer actually stated: “In the balancing of interests the absence of a claim of confidentiality and the lack of evidence of vindictiveness tip the scale to the conclusion that the district court was correct in requiring the reporters to testify.” 539 F.2d at 376.)

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3. Grand jury

In United States v. Sterling, 818 F.Supp.2d 945, 947 (E.D. Va. 2011) two grand jury subpoenas were issued for a reporter’s testimony on a confidential source.  The district court quashed the first, earlier issued subpoena on the basis of a reporter’s privilege, but found partial waiver of the privilege as to certain information that had been disclosed to a third party.  Id.  The district court also quashed the second, later issued subpoena on the same grounds and found that there existed “more than enough [circumstantial] evidence to establish probable cause to indict Sterling.” Id. at 950.

On appeal, the Fourth Circuit reversed the district court’s order to quash a subsequent trial subpoena and rejected the existence of a reporters privilege in a criminal proceeding.  United States v. Sterling, 724 F.3d 482 (4th Cir. 2013).  In its holding, the court did not directly address the subpoenas issued during the grand jury proceedings. However, the Fourth Circuit did rely on the Supreme Court decision in Branzburg which arose in the context of a grand jury investigation and where the high court found no immunity for reporters “on First Amendment grounds, from testifying against the other, before the grand jury or at a criminal trial.” Id. at 493 (citing Branzburg, 408 U.S. at 690-91).

In the event a privilege still exists before a grand jury in the Fourth Circuit, the language in Shain, a criminal case, indicates that at the very best, the Court would consider a reporter’s privilege only upon a showing of confidentiality and governmental harassment. See Shain, 978 F.2d at 852. Even if the reporter makes such a showing to initiate a balance of interests under the LaRouche test, a “compelling law enforcement interest” is likely to tip the balance in favor of disclosure. See United States v. King, 194 F.R.D. 569, 585 (E.D. Va. 2000).

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D. Information and/or identity of source

The reporter’s privilege in the Fourth Circuit does not specifically protect the identity of a source or information that implicitly identifies a source, but the case law indicates that the privilege is most powerful in those situations, though only applicable in a civil context. For example, in Gilbert v. Allied Chemical Corp., the first reporter’s privilege opinion in the Circuit, the defendant in a toxic tort suit subpoenaed from a communications company various confidential and nonconfidential documents related to news broadcasts. 411 F. Supp. 505 (E.D. Va. 1976). The court granted the motion to quash the subpoena to the extent it required reporters to reveal confidential sources and material that “directly leads to the disclosure of confidences.” Id. at 510-11. It also issued restrictions on the files that were required to be disclosed so the dissemination of potentially harmful information would be limited. Id. at 511-12.

In later cases, courts in the Fourth Circuit have applied the same balancing tests in the context of the identity of a confidential source as they have in the context of nonconfidential information. See Ashcraft, 218 F.3d at 287; LaRouche, 780 F.2d at 1139; Bischoff, 25 Media L. Rep. at 1287; Miller v. Mecklenburg County, 602 F. Supp. 675 and 606 F. Supp. 488 (W.D.N.C. 1985), aff’d 813 F.2d 402 (4th Cir. 1986), further opinion at 12 Media L. Rep. 1405 (W.D.N.C. 1985). Ashcraft, LaRouche, and Bischoff were decided on other grounds, but Miller indicates that the confidentiality of a source might tilt the balance on the “compelling interest” prong of the LaRouche or another test in favor of upholding the privilege. Miller, 602 F. Supp. at 680 (“The First Amendment protection against disclosure of the name of a confidential source is stronger than the protection against disclosure of non-confidential information revealed by that source.”).

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E. Confidential and/or nonconfidential information

It is well established in the Fourth Circuit that when a reporter invokes a privilege to protect confidential information -- information obtained by a news gatherer under a promise of confidentiality – in a civil litigation, the court will use the LaRouche balancing test to determine whether the privilege should be upheld. Ashcraft, 218 F.3d at 287 (citing LaRouche, 780 F.2d at 1139). In a criminal proceeding, the LaRouche balancing test has no application and the reporter is not entitled to a privilege, even for confidential information, absent a showing of bad faith or other such improper motive. United States v. Sterling, 724 F.3d 482, 492 (4th Cir. 2013). However, the Fourth Circuit in Shain did not explicitly require both confidentiality and vindictiveness for a successful privilege claim. See 978 F.2d at 853.

Concerning nonconfidential information -- information obtained other than through a promise of confidentiality -- the law in the Fourth Circuit entitles reporters to no privilege in criminal proceedings, but is less explicit in the civil context. See Sterling, 724 F.3d at 497 (“LaRouche… offers no authority for us to recognize a First Amendment reporter’s privilege in this criminal proceeding.”)  In civil cases, recent decisions support, though do not explicitly state, the existence of a qualified privilege for nonconfidential sources and information. In Church of Scientology, 992 F.2d 1329, 21 Media L. Rep. 1426 (4th Cir. 1993), cert. denied 510 U.S. 869 (1993), the Church sued a drug company executive for libel based on a statement made by the executive in a USA Today editorial board meeting and published by the newspaper. 992 F.2d at 1330-31. The Church moved to compel production by USA Today of materials relating to the board meeting, even though the executive offered to stipulate to the quotation’s accuracy. The Fourth Circuit, in affirming the denial of the Church’s motion, applied the LaRouche balancing test in spite of the nonconfidential nature of the information sought and the absence of vindictiveness. Id. at 1335.

Lower courts have followed this lead in applying the qualified privilege to nonconfidential information. See, e.g., Federico v. Lincoln Military Housing, LLC, 42 Media L. Rep. 2472, *3-4 (E.D. Va. Aug. 13, 2014) (“it is generally the opinion of these courts that the potential burden of the free flow of information caused by the disclosure of nonconfidential materials is equivalent to the burden of revealing confidential information”) (quoting Stickels v. General Rental Co., Inc., 750 F.Supp. 729, 732 (E.D. Va. 1990)) (reviewing Fourth Circuit case law in this area); Food Lion Inc. v. Capital Cities/ABC Inc., 951 F. Supp. 1211, 25 Media L. Rep. 1182 (M.D.N.C. 1996) (applying a modified balancing test in permitting limited discovery of nonconfidential hidden camera investigations); Penland, 922 F. Supp. at 1084 (applying LaRouche test in granting motion to quash plaintiffs’ subpoena for nonconfidential information on interviews with defendant).

Even if the analysis of the privilege in the civil context is the same for confidential and nonconfidential sources and information, it is likely that the nonconfidentiality of a source might tip the balance on the “compelling interest” element in favor of disclosure. Miller, 602 F. Supp. at 680 (“The First Amendment protection against disclosure of the name of a confidential source is stronger than the protection against disclosure of non-confidential information revealed by that source.”).

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F. Published and/or non-published material

The Fourth Circuit reporter’s privilege for published material is largely undeveloped; the state of the law might reflect the fact that subpoenaed reporters and media entities will generally provide published materials without complaint. See Stickels v. General Rental Co., 750 F. Supp. 729, 731, 18 Media L. Rep. 1644 (E.D. Va. 1990), (printed photos of accident are made available to tort defendant); Gilbert, 411 F. Supp. at 507 (published material and tapes of television report are provided to toxic tort defendant). Conflict has arisen, however, when reporters are required to testify in court as to the authenticity of statements made during published interviews. In Shain, the Fourth Circuit did not cite the published nature of the material as a motivation in its affirmation of contempt findings against four reporters; the Court indicated that whether or not the material was published, the reporters had no privilege without a showing of confidentiality or harassment. 978 F.2d at 853. The concurrence, however, expressed concern that requiring a reporter to testify even as to published material might have a chilling effect, inducing reporters to “think twice about conducting exclusive interviews or reporting statements of denial that may be open to question.” Id. at 855 (Wilkinson, J., concurring).

As for unpublished materials, the Fourth Circuit applies its three-part LaRouche test, a fact-based inquiry, to determine whether a reporter or media entity should be required to provide the requested documents or testimony; See, e.g, Ashcraft, 218 F.3d at 287 (reversing contempt order against reporter); Penland, 922 F. Supp. at 1084 (granting motion to quash plaintiff’s subpoena of information surrounding interview of defendant). In Stickels, the district court for the Eastern District of Virginia required the disclosure of unpublished photographs, citing the “unique nature of photos” and their ability to impart especially detailed and credible evidence. 750 F. Supp. at 732. The court also noted that “these particular photos merely preserve images that were so much part of the public domain,” indicating that the privilege would be stronger for unpublished photos of private subjects or subjects of which no other photos have been published. Id.

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G. Reporter's personal observations

While the Fourth Circuit has not enunciated a blanket exception to the reporter’s privilege for reporters who are subpoenaed as eyewitnesses, the Court strongly favors disclosure in such situations. In Steelhammer, the district court for the Southern District of West Virginia held a civil contempt trial to ascertain whether at a rally two union members had advocated prolonging a strike in contravention of a court-issued temporary restraining order. Two reporters for the Charleston Gazette were summoned by the court to testify about their observances at the rally. They refused and were judged in contempt of court and held for four to six hours before being released on bail. The Fourth Circuit en banc affirmed the contempt convictions and adopted the dissent from the original three-judge panel. Steelhammer, 561 F.2d at 540 (4th Cir. 1977), adopting Winters, J., dissent, reported at 539 F.2d 373 (4th Cir. 1976). The Court stated that absent a claim of confidentiality or evidence of vindictiveness on the part of the seeking party, a reporter may not refuse to testify about his or her observances, even if other witnesses to the same events are available. 539 F.2d at 376. Under the LaRouche test, which was formulated nine years after Steelhammer, the presence of other witnesses would likely militate against disclosure because there exist alternative means of obtaining the information. See LaRouche, 780 F.2d at 1139.

The considerations at play in both Steelhammer and LaRouche were present in United States v. Lindh,  in which a Virginia district court evaluated whether to require a journalist to testify, at a suppression hearing, about his experience interviewing the “American Taliban” at a hospital in Afghanistan. 210 F. Supp. 2d 780 (E.D. Va. 2002). The court denied the journalist’s motion to quash, noting that Lindh’s Sixth Amendment right to prepare and present a full defense may be outweighed by a First Amendment reporter’s privilege only where the journalist’s testimony is cumulative or immaterial, and neither of those circumstances was present on the record. 210 F. Supp. 2d at 783. However, the court added that if, by the time the journalist is called to testify, other witnesses have presented testimony that would render the journalist’s testimony cumulative, the court may “address anew the balancing of the competing constitutional interests.” Id. at 784.

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H. Media as a party

Despite one district court’s assertion that the “privilege falls when a media defendant is sued for libel,” the Fourth Circuit constitutional privilege does not differentiate between cases where the media entity is a party and cases where it is not. Bauer v. Brown, 11 Media L. Rep. 2168 (W.D.Va. 1985). The circuit’s three-part balancing test, in fact, originated in a defamation case brought against a media entity. LaRouche, 780 F.2d at 1139. In LaRouche, the Fourth Circuit affirmed the lower court’s denial of a motion to compel NBC to reveal its confidential sources. The Fourth Circuit agreed with the lower court that LaRouche had not exhausted alternative means of obtaining the information, one of the prongs of the test. Id.

Where a media entity or reporter is charged with other kinds of tortious behavior, however, the Fourth Circuit is likely to heighten its scrutiny of assertions of privilege. In Food Lion, the plaintiff grocery chain sued ABC for fraud, trespass and various commercial torts in connection with the television network’s hidden-camera investigation of the plaintiff’s supermarket stores. 951 F. Supp. 1211. The district court, in allowing limited discovery into two other hidden-camera investigations by ABC, added a prong to the LaRouche test, requiring the court to be “confident that the party asserting the privilege does not do so as a means of justifying otherwise illegal conduct.” Id. at 1215.

While media parties may assert privilege as a constitutional matter, the South Carolina shield statute does not grant a qualified privilege where the one asserting the privilege is a party in interest. S.C. Code § 19-11-100 (1995). The North Carolina and Maryland shield statutes do not differentiate between cases in which a media entity is a party and cases in which it is not.

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I. Defamation actions

The Fourth Circuit constitutional privilege is applicable to libel and non-libel cases. The circuit’s three-part balancing test originated in a defamation case. LaRouche, 780 F.2d at 1139. In at least one regard, the privilege seems stronger in libel cases than otherwise: Where a libel defendant concedes the authenticity of the allegedly libelous statement, the court has been inclined not to require disclosure of unpublished information surrounding the alleged libel. In both Church of Scientology and Penland, the courts reasoned that since the statement being sued upon was public, notes on the published statement were not sufficiently relevant and the need for disclosure not sufficiently compelling. Church of Scientology, 992 F.2d at 1329; Penland, 922 F. Supp. at 1084. Where the statement being sued upon was not public but made only to a reporter during an interview, a district court found that, in order for the court to consider the defamatory statement in the context in which spoken, the reporter’s interview notes with the speaker, but no others, must be disclosed.  Gilbertson v. Jones, 2016 WL 6518659, *3-6 (E.D. Va. Sept. 22, 2016); 2016 WL 6518631 (E.D. Va. Nov. 1, 2016) (order adopting report and recommendation).

The application of a qualified reporter’s privilege in a defamation action over disclosure of confidential sources and unpublished notes was addressed in two related orders of the same case: Hatfill v. N.Y. Times Co., 459 F. Supp. 2d 462 (E.D. Va. 2006) and Hatfill v. New York Times Co., 242 F.R.D. 353 (E.D. Va. 2006) (“Hatfill I” and “Hatfill II” respectively).  In Hatfill I the reporter’s privilege did not bar compelled disclosure of a newspaper columnist’s confidential sources in an action against the columnist and the newspaper.  The columnist published information alleging the plaintiff was involved in anthrax attacks that killed five people. Hatfill, 459 F. Supp. 2d at 464.  Having promised confidentiality, the columnist refused to reveal his sources. Id.  The plaintiff sought to compel disclosure of the identities of the sources to develop evidence of their lack of reliability. Id.  After consideration of the LaRouche factors, the court concluded that the balance tipped in favor of disclosure. Id. at 467. The information needed to ascertain the reporter’s state of mind and verify certain statements was not available by means other than compelled disclosure; this was a sufficiently compelling interest in the information. Id.

In Hatfill II, the reporter’s privilege protected from disclosure a reporter’s unpublished notes related to his investigation of the anthrax attacks.  Hatfill, 242 F.R.D. at 355. The reporter and the newspaper columnist, whose confidential sources were ordered disclosed in Hatfill I, shared and edited common work product as the columnist drafted his column.  Id.  However, the columnist was never directly privy to the reporter’s extensive investigative notes. Id.  The Court applied the LaRouche factors to the unpublished notes and found that because the confidentiality of the notes was maintained and the columnist never viewed them, there was no evidence that they were relevant to the columnist’s state of mind and, thus, could not have a bearing on the actionability of the alleged defamatory statements. Id. at 356.  Therefore, even though the notes were unavailable by any alternate means, no compelling need was demonstrated and disclosure was not required.  Id. at 357-358.

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IV. Who is covered

The Fourth Circuit reporter’s privilege jurisprudence does not test the boundaries of whom the privilege protects. All of the case law has dealt with persons/entities and information fitting within traditional conceptions of “reporters” and “news.” Thus, it is difficult to predict how the courts of the Circuit would classify nontraditional news gatherers, such as students or academic researchers, or nontraditional news outlets, such as newsletters, reports for investors or internet publications.

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A. Statutory and case law definitions

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1. Traditional news gatherers

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a. Reporter

The reporter’s privilege case law does not define “reporter” or specify a minimum number of hours per week a “reporter” must work to invoke the privilege.

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b. Editor

The case law does not define an “editor,” though a newspaper editor has been permitted to invoke the privilege. See Maurice v. Nat’l Labor Relations Board, 691 F.2d 182 (4th Cir. 1982) (holding that business editor of Charleston (W.Va.) Daily Mail must exhaust administrative remedies before seeking judicial relief from subpoena).

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c. News

The Fourth Circuit does not define “news” for the purpose of determining what information may be protected under the reporter’s privilege. Presumably the scope of protection is broad, at least where the news gatherer is working for a traditional journalistic enterprise.

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d. Photo journalist

The Fourth Circuit privilege does not define “photojournalist.” In the one case specifically addressing the applicability of the privilege to photos, Stickels v. General Rental Co., the newspaper, not the reporter, asserted a privilege. 750 F. Supp. 729, 730, 18 Media L. Rep. 1644 (E.D. Va. 1990). However, there is nothing in the law to indicate the reporter/photographer himself, or any news photographer, could not assert the privilege in his or her own name.

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e. News organization/medium

The Fourth Circuit does not explicitly define or limit applicability of the reporter’s privilege to certain media, though the case law has not addressed the privilege in the context of the Internet or magazines. The Circuit has applied the privilege to reporters at small and large newspapers, as well as local television stations and national broadcast networks. See, e.g., Ashcraft v. Conoco, Inc., 218 F.3d 282, 284, 28 Media L. Rep. 2103 (4th Cir. 2000) (reporter for Wilmington, N.C., Morning Star newspaper); Bischoff v. United States, 25 Media L. Rep. 1286 (reporter for Houston Post); Penland v. Long, 922 F. Supp. 1080, 1082, 24 Media L. Rep. 1410 (W.D.N.C. 1995) (reporter for local WLOS-TV and reporter for The Asheville (N.C.) Citizen-Times); In re Shain, 978 F.2d 850, 851, 20 Media L. Rep. 1930 (4th Cir. 1992) (four reporters for South Carolina newspapers); LaRouche v. Nat’l Broadcasting Co., 780 F.2d 1134, 1136, 12 Media L. Rep. 1585 (4th Cir. 1986) (producers of NBC national television shows).

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2. Others, including non-traditional news gatherers

The Fourth Circuit has not addressed the reporter’s privilege as applied to non-traditional news gatherers, such as authors, freelancers, students, unpaid news gatherers, or academic researchers, or to others connected to the news process, such as newspaper librarians. However, a Virginia district court has applied the privilege to a freelance reporter assigned to cover the recent military conflict in Afghanistan on behalf of CNN. United States v. Lindh, 210 F. Supp. 2d 780, 781 (E.D. Va. 2002).

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B. Whose privilege is it?

Though there have been no cases in the Fourth Circuit in which a source has attempted to invoke or waive the privilege, the privilege is characterized as belonging to the reporter and not the source. See, e.g., Ashcraft, 218 F.3d at 287 (“If reporters were routinely required to divulge the identities of their sources, the free flow of newsworthy information would be restrained”); Gilbert v. Allied Chemical Corp., 411 F. Supp. 505, 508 (E.D. Va. 1976) (“the First Amendment, protecting as it does the free flow of information, provides newsmen a privilege”).

The news organization may assert the constitutional reporter’s privilege in conjunction with the individual reporter, e.g., United States v. King, 194 F.R.D. 569, 571; Penland, 922 F. Supp. at 1082, or on behalf of the individual reporter, e.g. LaRouche, 780 F.2d at 1139; Stickels, 750 F. Supp. at 730-31; Gilbert, 411 F. Supp. at 507. However, one district court has questioned whether a publisher has standing to assert the privilege where the reporter is willing to waive it. In Bauer v. Brown, a former teacher brought a section 1983 claim against several former colleagues and other parties arising out of an earlier investigation of the teacher. 11 Media L. Rep. 2168 (W.D. Va. 1985). During that investigation, the defendants had had contacts with a newspaper reporter and television reporter that had resulted in published stories. The plaintiff subpoenaed the reporters to testify and produce all documents related to the interviews or news reports. The television reporter, who by the time of the subpoena was no longer a journalist, agreed to testify, but his notes and other documents were in the possession of the newspaper, which asserted the privilege. Id. at 2168-69. The district court granted the motions to quash on other grounds and left open the question of the publisher’s standing.

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V. Procedures for issuing and contesting subpoenas

Each of the federal district courts within the Fourth Circuit has its own rules and procedures. Counsel are encouraged to review a copy of the relevant local rules, and contact the court with specific questions that are not addressed by the rules.

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A. What subpoena server must do

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1. Service of subpoena, time

Rule 45 of the Federal Rules of Civil Procedure and Rule 17 of the Federal Rules of Criminal Procedure establish the requirements for issuance of a subpoena in federal courts. The Fourth Circuit does not appear through case law to have departed from these requirements where subpoenas are directed to the news media.

The federal rules, as well as the local rules of most of the courts in the Fourth Circuit, do not specify when a subpoena must be served. The District of South Carolina requires that subpoenas for witnesses in criminal cases be delivered to the Marshal for service at least fourteen days before the Monday of the week in which the trial is set to begin, except as otherwise ordered by the Court. D.S.C. Crim. R. 17.01. In the Eastern District of Virginia, subpoenas in civil actions must be served at least fourteen days before the date of the hearing or trial, except as otherwise ordered by the Court for good cause shown. E.D. Va. R. 45(E).

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2. Deposit of security

The federal rules, as well as the local rules for the district courts in the Fourth Circuit, do not explicitly require that the subpoenaing party deposit security to procure the testimony or materials of the reporter.

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3. Filing of affidavit

The federal rules, as well as the local rules for the district courts in the Fourth Circuit, do not require that the subpoenaing party make any sworn statement in order to procure a reporter’s testimony or materials. Where the federal government is issuing a subpoena to the news media, it must obtain the express authorization of the Attorney General, and that authorization should be based on representations by the seeking party that the information sought is essential and other alternatives have been exhausted. See 28 C.F.R. § 50.10. However, the guidelines do not provide the media with a cause of action if they are not followed. In re Shain, 978 F.2d 850, 853-54, 20 Media L. Rep. 1930 (4th Cir. 1992).

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4. Judicial approval

The local rules for district courts in the Fourth Circuit do not require that a judge or magistrate approve subpoenas before they may be served, except in some jurisdictions if the issuing party is pro se. As noted above, when the federal government is issuing a subpoena to the news media, it must obtain the express authorization of the Attorney General. 28 C.F.R. § 50.10.

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5. Service of police or other administrative subpoenas

The local rules for district courts in the Fourth Circuit do not include any specific provisions regarding the use and service of administrative subpoenas, including police or fire investigation subpoenas, and none of the case law addresses such subpoenas.

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B. How to Quash

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1. Contact other party first

Some jurisdictions require that a motion must contain an affirmation that prior to filing, the moving party attempted to confer with opposing counsel and attempted in good faith to resolve the matter. See, e.g., D.S.C. Civ. R. 7.02; W.D.N.C. Local R. 7.1(b). Consult the local rules in your jurisdiction.

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2. Filing an objection or a notice of intent

The case law of the Fourth Circuit indicates that a notice of intent need not be filed before a motion to quash.  If the subpoena seeks documents or tangible things, or to permit inspection, then a party may serve (not file) a written objection on the party or attorney designated in the subpoena pursuant to Federal Rule of Civil Procedure 45(d)(2)(B).  If the objection is served, then the serving party may file a motion to compel production.  Neither the Federal Rules nor the local rules in courts in the Fourth Circuit permit a party subpoenaed for testimony to serve an objection to avoid appearing to testify.  In such instances, the party must file a motion to quash.

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3. File a motion to quash

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a. Which court?

The motion to quash generally should be filed in the court for the district where compliance is required.  See Federal Rule of Civil Procedure 45(d)(3).  Although all subpoenas now must  “must issue from the court where the action is pending,” Rule 45(a)(2), the place of compliance of the subpoena is limited to within 100 miles of where the person subpoenaed resides, is employed, or regularly transacts business in person, or within the state if the subpoena commands attendance at trial.  Rule 45(c).  This means that district courts may need to decide motions to quash or motions to compel that arise from subpoenas issued by a different court.  See, e.g. Bell Inc. v. GE Lighting, LLC, 2014 WL 1630754 (W.D. Va. Arpil 23, 2014).  Courts in the Fourth Circuit have entertained motions to transfer upon request from a subpoenaed nonparty, from the court where the motion was filed to the court where the underlying litigation is pending.  See United States v. Star Scientific, Inc., 2002 U.S. Dist. LEXIS 10652, *18 (D. Md. 2002) (holding a transfer would be convenient to the nonparty and the court where the litigation is pending would be better able to handle the discovery dispute).

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b. Motion to compel

Motions to compel may be filed against a media party if it fails to produce documents by the deadline in the subpoena or if it serves an objection and refuses to produce responsive documents.  Federal Rule of Civil Procedure 45(d)(2)(B).  Motions to compel testimony are less common because the onus is on the subpoenaed party to file a motion to quash before the date when attendance is required, otherwise the party can be held in contempt for failing to appear.

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c. Timing

Motions to quash in civil cases must be filed “timely” (Rule 45(d)(3)(A)), and generally should be filed prior to the date when compliance with the subpoena is required or within 14 days of service of the subpoena.  See Retractable Technologies, Inc. v. International Healthcare Worker Safety Center, 2011 WL 3555848 at *4 (W.D .Va. August 11, 2011) (“Although the term ‘timely’ is not defined, four and a half months after the return date of the subpoena is clearly not timely.”); In re Motorsports Merchandise Antitrust Litigation, 186 F.R.D. 344, 349-50 (W.D. Va. 1999) (court refuses to quash subpoena after subpoenaed party fails to respond within 14 days and fails to make timely motion to quash).  If the recipient of a subpoena in a civil action wishes to rely on a written objection, the recipient must serve the objection “before the earlier of the time specified for compliance or 14 days after the subpoena is served.”  Rule 45(d)(2)(B).  Motions to quash in criminal matters must be made “promptly.”  Federal Rule of Criminal Procedure 17(c)(2).

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d. Language

The federal rules and local rules for the district courts in the Fourth Circuit do not specify any stock language or preferred text that should be included in the motion. However, Federal Rule of Civil Procedure 45(e)(2), provides that a person withholding subpoenaed information must: “(i) expressly make the claims; and (ii) describe the nature of the withheld documents, communications, or tangible things in a manner that … will enable the parties to assess the claim.”

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e. Additional material

There is no statute or case law addressing this issue in the Fourth Circuit.

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4. In camera review

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a. Necessity

The federal rules and the local rules of the district courts in the Fourth Circuit do not direct the court to conduct an in camera review of materials or interview with the reporter prior to deciding on a motion to quash, and the case law indicates judges in the Fourth Circuit rarely conduct such reviews or interviews before ruling on a motion to quash. In camera reviews are apparently used more frequently for other purposes, for example, in deciding on a motion to restrain publication, United States v. King, 194 F.R.D. 569, 572 (E.D. Va. 2000), or as a safeguard after a media entity is ordered to comply with a subpoena, Food Lion Inc. v. Capital Cities/ABC, Inc., 951 F. Supp. 1211, 1216, 25 Media L. Rep. 1182 (M.D.N.C. 1996) (Judge agrees to sit in on depositions and, if defendants feel an answer should be privileged, hear answer out of presence of plaintiff’s counsel and determine whether privilege should apply).

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There does not appear to be any case law in the Fourth Circuit indicating whether any privilege is waived if a reporter or publisher consents to an in camera review.

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c. Consequences of refusing

There is no statutory or case law addressing the consequences of a reporter or publisher’s refusal to consent to an in camera review.

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5. Briefing schedule

The local rules concerning motions in the district courts of the Fourth Circuit are described below but are subject to change. Practitioners are urged to consult the relevant local rules when adjudicating a case in a federal jurisdiction, and to note that the presiding judge has discretion to alter most rules.

The District of Maryland requires that a motion “shall be accompanied by a memorandum setting forth the reasoning and authorities in support of it.” Oppositions to the motion should be filed within 14 days. D. Md. R. 105.

The Eastern District of North Carolina requires that a motion “shall be filed with an accompanying supporting memorandum,” and a response must be filed within 14 days. E.D.N.C. R. 7.1. The Middle District of North Carolina sets forth that a motion should be accompanied by a brief, and a response should be filed within 21 days. M.D.N.C. Local R. 7.3. In the Western District of North Carolina, motions should be filed with briefs, and responses are expected within 14 days. W.D.N.C. Local R. 7.1.

The District of South Carolina requires that a motion “shall be timely filed with an accompanying supporting memorandum.” D.S.C. Civ. R. 7.04. A response must be filed within 14 days, unless otherwise specified by the court. D.S.C. Civ. R. 7.06.

The Eastern District of Virginia requires that a motion shall be accompanied by a “written brief setting forth a concise statement of the facts and supporting reasons, along with a citation of the authorities upon which the movant relies.” E.D. Va. R. 7(F)(1). The opposing party must respond within 14 days unless otherwise directed by the court.

The Northern District of West Virginia requires that a motion “shall be filed timely” and “shall be accompanied by a supporting memorandum of not more than twenty-five pages.” N.D. W.Va. Local R. Civ. P. 7.02(b).  The Southern District of West Virginia requires “a memorandum of not more than 20 pages.” S.D. W.Va. Local R. Civ. P. 7.1(a)(2). Responses shall be filed within 14 days. N.D. W.Va. Local R. Civ. P. 7.02(b)(1), S.D. W.Va. Local R. Civ. P. 7.1(a)(7).

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6. Amicus briefs

The filing of amicus briefs is governed by Federal Rule of Appellate Procedure 29, which permits an amicus to submit a brief by leave of court or if the brief states that all parties have consented to its filing. The Court of Appeals of the Fourth Circuit appears to accept amicus briefs as a routine matter; they are also often accepted at the district court level, such as in Food Lion, where the court was reviewing the orders of a magistrate judge.

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VI. Substantive law on contesting subpoenas

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A. Burden, standard of proof

The Fourth Circuit has held that the reporter’s privilege will be overcome “whenever society’s need for the information in question outweighs the intrusion on the reporter’s First Amendment interests.” Ashcraft v. Conoco, 218 F.3d 282, 287, 28 Media L. Rep. 2103 (4th Cir. 2000). To guide the courts in balancing these interests, the Fourth Circuit in LaRouche v. Nat’l Broadcasting Co. adopted a three-part test: “(1) whether the information is relevant, (2) whether the information can be obtained by alternative means, and (3) whether there is a compelling interest in the information.” LaRouche, 780 F.2d 1134, 1139, 12 Media L. Rep. 1585 (4th Cir. 1986) (citing Miller v. Transamerican Press, Inc., 621 F.2d 721, 726 (5th Cir. 1980). The Fourth Circuit does not explicitly place the burden of persuasion on the subpoenaing party.

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B. Elements

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1. Relevance of material to case at bar

The Fourth Circuit’s LaRouche test in civil cases requires a showing that the information sought is “relevant” to the case. LaRouche, 780 F.2d at 1139. This is apparently a looser requirement than in earlier Fourth Circuit conceptions of the privilege, where the moving party was required to show that the information was “crucial to the case” or went “to the heart of the case.” Miller v. Mecklenburg County, 602 F. Supp. 675, 679 (W.D.N.C. 1985), aff’d 813 F.2d 402 (4th Cir. 1986), cert. denied 479 U.S. 1100 (1987), further opinion at 12 Media L. Rep. 1405 (W.D.N.C. 1985). Nevertheless, the relevancy requirement retains some bite. In particular, courts will not force disclosure of information that relates to a case if it is not relevant to the showings required under particular claims. For example, in Penland v. Long, plaintiffs brought a defamation claim against the town sheriff based on a press release which did not mention plaintiffs by name. The district court upheld two reporters’ assertions of privilege concerning their notes from interviews with the sheriff about the press release. The court deemed their notes of minimal relevance because it had already been established that the sheriff was referring to plaintiffs in the release. Penland, 922 F. Supp. 1080, 1084, 24 Media L. Rep. 1410 (W.D.N.C. 1995). Likewise, in Church of Scientology Int’l v. Daniels, because the defendant was willing to stipulate to the accuracy of his allegedly libelous statement, the Fourth Circuit deemed of “questionable” relevance editors’ notes on the meeting at which the statement was made. Church of Scientology, 992 F.2d 1329, 1335, 21 Media L. Rep. 1426 (4th Cir. 1993), cert. denied 510 U.S. 869 (1993).

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2. Material unavailable from other sources

The LaRouche test weighs “whether the information can be obtained by alternative means.” 780 F.2d at 1139. This requirement is in line with the earliest Fourth Circuit formulations of a balancing test; in Gilbert v. Allied Chemical Corp., the first case in the Fourth Circuit to address a reporter’s privilege, the seeking party had to show “that his only practical access to crucial information necessary for the development of the case is through the reporter’s sources.” Gilbert, 411 F. Supp. 505, 510 (E.D. Va. 1976). Forcing a reporter to reveal information “is to be the last resort of the litigants.” Miller, 602 F. Supp. at 679.

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a. How exhaustive must search be?

The courts apply a reasonableness standard -- the seeking party must show that the information sought “cannot be reasonably obtained by alternative means.” Penland, 922 F. Supp. at 1084. However, what constitutes a reasonably exhaustive search has not been clearly established. In Bischoff v. United States, the court found that plaintiffs had “made almost no effort” to determine independently who had made improper disclosures of tax information to a newspaper reporter. 25 Media L. Rep. 1286, 1287 (E.D. Va. 1996). Plaintiffs had only sent interrogatories to the government defendant, and the court required at the very least that plaintiffs depose the federal agents who may have been involved with the disclosures before requiring the newspaper reporter to reveal the information. Id. Likewise, in LaRouche, the Fourth Circuit noted there were still “obvious sources” plaintiff had not deposed, including a public source of one of the stories. 780 F.2d at 1137. On the other hand, in Penland, the district court said it was “satisfied” with plaintiffs’ showing even though they had failed to depose a person who may have overheard the information sought from the reporters. 922 F. Supp. at 1084.

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

The subpoenaing party should be required to “demonstrate to the court unsuccessful, independent attempts to gain the requested information” from any known public sources or those who the facts indicate might have the information sought. LaRouche, 780 F.2d at 1139. A party challenging a subpoena will have a strong argument that the seeking party has not sought all reasonable alternatives if it has not exhausted its non-party depositions. Id.

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c. Source is an eyewitness to a crime

A court in the Fourth Circuit has held that, in the context of a civil case, the fact that the source might have witnessed or participated in a crime does not change the application of the balancing test. In Bischoff, the district court found that plaintiffs had not made an exhaustive search for those who made potentially illegal disclosures to a reporter, rejecting plaintiffs’ contention that a court may dispense with the balancing test when a reporter asserting a privilege is believed to have first-hand evidence about criminal conduct. 25 Media L. Rep. at 1287. However, in criminal proceedings, the Fourth Circuit has determined that reporters are entitled to no special privilege that would allow them to withhold relevant information about criminal conduct without a showing of bad faith or other such improper motive. United States v. Sterling, 724 F.3d 482, 492 (4th Cir. 2013).   See also In Re Shain, 978 F.2d 850, 852, 20 Media L. Rep. 1930 (4th Cir. 1992) (“absent evidence of governmental harassment or bad faith, the reporters have no privilege different from that of any other citizen not to testify about knowledge relevant to a criminal prosecution”).

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3. Balancing of interests

The third branch of the Fourth Circuit’s LaRouche test is “whether there is a compelling interest in the information,” but in practice, the court determines whether the subpoenaing party’s interest is sufficiently compelling by weighing it against the countervailing interests in protecting sources and information. Frequently, the analysis of the subpoenaing party’s interest is conflated with discussion of the other LaRouche factors. For example, no compelling interest was found in Penland largely because the information sought was deemed not relevant. 922 F. Supp. at 1084. By contrast, in Stickels v. General Rental Co., defendant’s compelling interest in obtaining the photos seemed largely based on their relevance. 750 F. Supp. 729, 732, 18 Media L. Rep. 1644 (E.D. Va. 1990). In addition, in criminal cases a defendant’s constitutional rights to a fair trial and confrontation of the accuser are deemed compelling, as is the prosecution’s law enforcement interest. United States v. King, 194 F.R.D. 569, 585 (E.D. Va. 2000).

Relevant countervailing interests include the reporter’s First Amendment interests, see Ashcraft, 218 F.3d at 288 n.12, and the public’s interest in the free flow of information, Miller, 602 F. Supp. at 679-80 (holding information will be released under seal to protect public’s interest).

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4. Subpoena not overbroad or unduly burdensome

The overbreadth or burdensome nature of a subpoena is not a factor in determining whether to uphold the constitutional reporter’s privilege under LaRouche, but several rules and regulations exist to protect the media and others from overly broad or unduly burdensome subpoenas. Federal Rule of Civil Procedure 45(d) requires a judge to modify or quash a subpoena upon timely motion and impose sanctions upon the seeking party if the subpoena subjects a person to “undue burden.” Federal Rule of Criminal Procedure 17(c) authorizes the judge to quash a criminal subpoena if “compliance would be unreasonable or oppressive.” Regulations issued by the Department of Justice addressing government subpoenas to the media mandate that the subpoena “not be used to obtain peripheral, nonessential, or speculative information,” it “should be narrowly drawn. It should be directed at material and relevant information regarding a limited subject matter, should cover a reasonably limited period of time, should avoid requiring production of a large volume of material, and should give reasonable and timely notice of the demand,” and “generally should be limited to the verification of published information and to such surrounding circumstances as relate to the accuracy of the published information.” 28 C.F.R. § 50.10(c)(4)(ii), (v), (vii).

In Federico, a news organization sought to quash a subpoena by asserting the reporter’s privilege.  Federico v. Lincoln Military Housing, LLC, 42 Media L. Rep. 2472 (E.D. Va. Aug. 13, 2014).  The court noted that while a news organization “may enjoy a limited privilege as part of its newsgathering function, it must still respond to the subpoenas as limited by the court.”  Id. at 5. The Court applied the LaRouche factors and ordered a limited production of materials sought by the subpoena that were relevant, only discoverable through the news organization, and for which a compelling interest existed for production.  Id. at 5-6.

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5. Threat to human life

No cases in the Fourth Circuit address how and to what degree a judge should consider a threat to human life.

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6. Material is not cumulative

Whether the expected testimony or material would be cumulative is not a separate category in the reporter’s privilege analysis under LaRouche but factors into the other categories, particularly the subpoenaing party’s compelling interest in the information. “If the material sought turns out to be simply cumulative or useful only for impeachment purposes, then the Plaintiff’s ‘need’ is not nearly as great as in other situations.” Bauer v. Brown, 11 Media L. Rep. 2168, 2172 (1985). In Shain, the Fourth Circuit required the reporters to testify about their interviews with the criminal defendant senator, even though the government already had videotape evidence of the defendant committing the crime. However, the Court indicated it might have ruled differently had the reporters’ testimony not promised to add evidence of mens rea. See Shain, 978 F.2d at 853. See also United States v. Sterling, 818 F.Supp.2d 945, 947 (E.D. Va. 2011) rev’d on other grounds, 742 F.3d 482 (4th Cir. 2013) (granting motion to quash in part because reporter’s “testimony would simply amount to ‘the icing on the cake.’”).

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7. Civil/criminal rules of procedure

Rule 45(d) of the Federal Rule of Civil Procedure requires a judge to modify or quash a subpoena upon timely motion and impose sanctions upon the seeking party if the subpoena subjects a person to “undue burden.” Rule 17(c) of the Federal Rules of Criminal Procedure authorizes the judge to quash a criminal subpoena if “compliance would be unreasonable or oppressive.”

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8. Other elements

Where a media entity has been accused of allegedly tortious behavior such as fraud, one court has added a prong to the LaRouche test, requiring the judge to be “confident that the party asserting the privilege does not do so as a means of justifying otherwise illegal conduct.” Food Lion Inc. v. Capital Cities/ABC, Inc., 951 F. Supp. 1211, 1215, 25 Media L. Rep. 1182 (M.D.N.C. 1996).

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C. Waiver or limits to testimony

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1. Is the privilege waivable?

At least one court in the Fourth Circuit has found partial waiver of the privilege where the reporter had disclosed the source’s name and some information about his reporting to a third party. See United States v. Sterling, 818 F.Supp.2d 945, 947 (E.D. Va. 2011) rev’d on other grounds, 742 F.3d 482 (4th Cir. 2013).  See also McCoy v. City of Columbia, 2012 WL 2327785 *3 (D.S.C. June 19, 2012) (discussing waiver).

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2. Elements of waiver

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a. Disclosure of confidential source's name

There is no statutory or case law in the Fourth Circuit addressing this issue.

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b. Disclosure of non-confidential source's name

There is no statutory or case law in the Fourth Circuit addressing this issue.

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c. Partial disclosure of information

There is no statutory or case law in the Fourth Circuit addressing this issue.

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d. Other elements

There is no statutory or case law in the Fourth Circuit addressing this issue.

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3. Agreement to partially testify act as waiver?

There is no statutory or case law in the Fourth Circuit addressing this issue.

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VII. What constitutes compliance?

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A. Newspaper articles

Under Federal Rule of Evidence 902(6), newspapers and periodicals are self-authenticating; in other words, they are admissible into evidence without a writer, editor or other witness testifying to their authenticity.

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B. Broadcast materials

Unlike newspapers or printed periodicals, videotapes are not self-authenticating. Under Federal Rule of Evidence 902(6), authentication is satisfied by “evidence sufficient to support a finding that the matter is what the proponent claims.” Generally, this would require testimony by a witness who can demonstrate the chain of custody of the tapes, most likely a representative of the broadcaster. The courts do not specify who that representative must be.

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C. Testimony vs. affidavits

There appears to be no statute or regulation requiring testimony rather than an affidavit to confirm that an article was true and accurate as published; however, the case law indicates that the general practice of the Fourth Circuit is to require testimony. See In re Shain, 978 F.3d 850, 852, 20 Media L. Rep. 1930 (4th Cir. 1992) (reporters held in contempt for refusal to testify to confirm accuracy of quotations in articles).

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D. Non-compliance remedies

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1. Civil contempt

Civil contempt is the most common remedy applied by Fourth Circuit courts to reporters for non-compliance with a subpoena. Designed to compel compliance with the court order, civil contempt sanctions are typically avoidable through obedience of the order and are mooted when the underlying proceeding is resolved or the information at issue is obtained in another fashion.

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a. Fines

There are no recent examples of fines being levied by Fourth Circuit courts against reporters refusing to comply with court orders to disclose sources or information.

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b. Jail

Jail is the more common punishment for reporters held in civil contempt in the Fourth Circuit, and sentences appear to be limited only by the discretion of the court. In United States v. Steelhammer, two reporters for the Charleston Gazette were found in contempt for refusing to testify at the civil contempt hearing of union rally members. The district judge ordered the reporters to be held until further order of the court, not to exceed six months. They were held for four to six hours before being released on bail pending an appeal. Other reporters responded to the questions the Gazette reporters refused to answer, and the underlying case was resolved. On appeal, the Fourth Circuit affirmed the contempt judgments but vacated the unserved portions of the sentences because the underlying proceeding had terminated. Steelhammer, 561 F.2d 539 (4th Cir. 1977) (en banc), rev’g, 539 F.2d 373 (4th Cir. 1976).

In 1991, four reporters for South Carolina newspapers refused to testify in a criminal trial. The district judge found them in contempt and ordered them confined during the two days of trial; the reporters spent at least one of those days in jail before being released pending an appeal. Shain, 978 F.3d at 852. The contempt convictions were affirmed, but by then the underlying proceeding had ended. Id. at 854. In 1998, a reporter for the Wilmington, N.C., Morning Star, was found in civil contempt and ordered to an indefinite term of imprisonment for refusing to disclose his sources of information about an allegedly confidential, $36 million court settlement. Ashcraft v. Conoco, Inc., 218 F.3d 282, 286-87, 28 Media L. Rep. 2103 (4th Cir. 2000). Before the reporters was required to report to jail, the Fourth Circuit stayed the order pending appeal, and on appeal the Court reversed the contempt order on the grounds that the sealing order the reporter allegedly violated was invalid. Id. at 287-88.

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2. Criminal contempt

The court never specifies whether the contempt order in Shain,  was criminal or civil. Shain, 978 F.2d at 852. The fixed jail sentence is more indicative of a criminal contempt finding; however, the failure to impose the remainder of the sentence when the contempt order was affirmed on appeal indicates the Fourth Circuit considered the order to be civil and mooted upon resolution of the underlying suit. There are no other cases in the Fourth Circuit in which a reporter has been found in criminal contempt for failure to disclose sources or information.

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3. Other remedies

There is no statutory or case law in the Fourth Circuit discussing this issue.

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VIII. Appealing

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A. Timing

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1. Interlocutory appeals

Generally, one served with a subpoena, either for trial or discovery, may not appeal a denial of a motion to quash without first resisting the subpoena and being found in contempt. United States v. Ryan, 402 U.S. 530, 533 (1971); Cobbledick v. United States, 309 U.S. 323, 328 (1940). Most cases in the Fourth Circuit involve a motion to quash appealed after a reporter was held in contempt or a final order issued. See Ashcraft v. Conoco Inc., 218 F.3d 282, 284 (4th Cir. 2000) (reporter appeals contempt order); Church of Scientology Int’l v. Daniels, 992 F.2d 1329, 1335, 21 Media L. Rep. 1426 (4th Cir. 1993), cert. denied 510 U.S. 869 (1993) (plaintiff appeals summary judgment); In re Shain, 978 F.2d 850, 851, 20 Media L. Rep. 1930 (4th Cir. 1992) (reporters appeal contempt order); LaRouche v. Nat’l Broadcasting Co., Inc., 780 F.2d 1134, 1136, 12 Media L. Rep. 1585 (4th Cir. 1986), cert. denied, 479 U.S. 818 (1986) (plaintiff appeals final judgment); United States v. Steelhammer, 539 F.2d 273 (4th Cir. 1976), rev’d en banc, 561 F.2d 539, 540 (4th Cir. 1977) (reporters appeal contempt order).

In Sterling, the Government filed an interlocutory appeal after the district court quashed a subpoena issued to a reporter based on a qualified First Amendment reporter’s privilege.  U.S. v. Sterling, 818 F.Supp.2d 945 (2011).  The Fourth Circuit held that it had jurisdiction to review the appeal, but based its decision on a statute specific to the Government’s right to interlocutory appeal of pretrial orders suppressing or excluding evidence in criminal cases.  U.S. v. Sterling, 724 F.3d 482, 491 (2013) (citing 18 U.S.C.A. § 3731).

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2. Expedited appeals

Fourth Circuit Court of Appeals Rule 12(c) provides that upon its own motion or the motion of a party, the Court may expedite an appeal. According to the rule, “A motion to expedite should state clearly the reasons supporting expedition, the ability of the parties to present the appeal on existing record, and the need for oral argument.” The case law does not clarify the standards for granting an expedited appeal or indicate any special considerations for situations involving news media subpoenas.

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B. Procedure

Appeals from the federal district courts in Maryland, North Carolina, South Carolina, Virginia, and West Virginia, as well as from final judgments by magistrate judges in those federal districts, are brought to the United States Court of Appeals for the Fourth Circuit. Fed. R. App. P. 3; Fed. R. Civ. P. 73(c).

To appeal other orders by magistrate judges, including rulings on motions to quash and contempt citations, the reporter must file objections within 10 days of receiving a copy of the order. The district judge to whom the case is assigned shall then consider the objections and modify or set aside any portion of the order found to be clearly erroneous or contrary to law. Fed. R. Civ. P. 72. Likewise, a reporter subpoenaed in an administrative hearing must follow the established administrative appeal procedure before seeking relief from the federal courts. Fed. R. App. P. 15; Maurice v. NLRB, 691 F.2d 182, 183 (4th Cir. 1982) (instructing district court to dismiss case brought by editor who failed first to invoke appeals procedure provided by NLRB regulations).

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1. To whom is the appeal made?

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2. Stays pending appeal

A party seeking a stay pending appeal must ordinarily make a motion in the district court that issued the judgment. Such a motion may also be made to the Court of Appeals upon a showing that moving first in the district court would be impracticable, or that the district court denied the initial motion. Fed. R. App. P. 8(a). When weighing whether to grant a stay pending appeal, courts generally consider four factors: 1) the likelihood that the party seeking the stay will prevail on the merits of the appeal; 2) the likelihood that the moving party will be irreparably harmed absent a stay; 3) the prospect that others will be harmed if the court grants the stay; and 4) the public interest in granting the stay. Long v. Robinson, 432 F.2d 977, 979 (4th Cir. 1970). Because of the fundamental constitutional implications of holding reporters in contempt, courts are inclined to grant stays in such cases. See Ashcraft, 218 F.3d at 287 (appeals court stays district court’s contempt order, keeping reporter out of jail pending appeal).

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3. Nature of appeal

Final judgments and contempt orders may be appealed as of right by filing a notice of appeal with the district clerk within 30 days after the judgment or order is entered. 28 U.S.C. § 1291; Fed. R. App. P. 4(a). Courts also permit some interlocutory appeals; however, parties generally may not appeals denials of motions to quash without first resisting the subpoena and being found in contempt. Ryan, 402 U.S. 530 (1971); Cobbledick, 309 U.S. 323, 328 (1940). Aside from Sterling (where appeal was allowed under 18 U.S.C.A. § 3731), there do not appear to be any cases in the Fourth Circuit in which a motion to quash has been appealed before a reporter is held in contempt or a final order issued. See Ashcraft, 218 F.3d at 284 (reporter appeals contempt order); Church of Scientology, 992 F.2d at 1335 (plaintiff appeals summary judgment); Shain, 978 F.2d at 851 (reporters appeal contempt order); LaRouche, 780 F.2d at 1136 (plaintiff appeals final judgment); Steelhammer, 561 F.2d at 540 (reporters appeal contempt order).

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4. Standard of review

The Fourth Circuit reviews both denials of motions to compel discovery and civil contempt orders under an abuse-of-discretion standard. Ashcraft v. Conoco, Inc., 218 F.3d 288 (4th Cir. 2000) (companion to Ashcraft case discussed elsewhere); Church of Scientology, 992 F.2d at 1335 (reviewing motion to compel discovery); LaRouche, 780 F.2d at 1139 (same). The standard is not heightened by the constitutional implications of these cases, nor is de novo review required.

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5. Addressing mootness questions

The Fourth Circuit permits appeal of a contempt order even if the trial or grand jury for which the reporter was subpoenaed has concluded, on the grounds that such a controversy is “capable of repetition but evading review.” Nebraska Press Ass’n v. Stuart, 427 U.S. 539 (1976); see United States v. Steelhammer, 539 F.2d 373, 378 (4th Cir. 1976) (Winters, J., dissenting), adopted in 539 F.2d 539 (4th Cir. 1977) (review en banc) (“While the case is thus moot in the sense that the reporters have lost the ability to purge themselves, their contentions raise an important point difficult to advance at the appellate level before mootness ensues and likely to arise again in continuing litigation”).

Contempt orders can also be appealed even if the underlying controversy has been resolved if there is a chance of further proceedings. See Shain, 978 F.2d at 853 n.2 (appeal remains live controversy because defendant has been granted a new trial and government has indicated if case is retried it intends to subpoena reporters again).

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6. Relief

The Fourth Circuit has the authority to dissolve a district court’s contempt order, and it has been willing to do so rather than merely to order the trial judge to reconsider the issues. See Ashcraft, 218 F.3d 282, 288 (4th Cir. 2000) (reversing district court’s contempt order, thereby invalidating any contempt sanctions).

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IX. Other issues

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A. Newsroom searches

There have been no Fourth Circuit cases applying the federal Privacy Protection Act, 42 U.S.C. § 2000aa.  However, one case limited a subpoena seeking information from the newsroom.  In Gilbertson v. Jones, a defendant in a defamation lawsuit sought disclosure of a variety of reporter’s notes including notes of the reporter’s interview with defendant as well as related written communications the reporter had with agents or employees of the news station at issue.  2016 WL 6518659 (E.D. Va. Sept. 22, 2016); 2016 WL 6518631 (E.D. Va. Nov. 1, 2016) (order adopting report and recommendation).  The Magistrate Judge ordered disclosure of the reporter’s notes and recordings of the interview with defendant alone but, applying the LaRouche balancing test, shielded the newsroom from the subpoena.  Id.

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B. Separation orders

There is no statutory or case law in the Fourth Circuit discussing this issue.

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C. Third-party subpoenas

There is no statutory or case law in the Fourth Circuit discussing subpoenas to third parties (credit card companies, telephone companies, etc.) designed to elicit information about a reporter’s sources.

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D. The source's rights and interests

There is no statutory or case law in the Fourth Circuit discussing whether sources may intervene anonymously to halt disclosure of their identities, or whether they may sue over disclosure after the fact.

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