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5th Circuit

Reporter's Privilege Compendium

Thomas S. Leatherbury
Marc A. Fuller
Kim R. McCoy
Emily S. Johnson
Lindsey D. Pryor
Vinson & Elkins LLP
Trammell Crow Center
2001 Ross Avenue
Suite 3700
Dallas, TX 75201-2975
Phone: 214.220.7792
tleatherbury@velaw.com
mfuller@velaw.com
kmccoy@velaw.com
ejohnson@velaw.com
lpryor@velaw.com

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I. Introduction: History & Background

The Fifth Circuit has recognized a First Amendment qualified privilege for journalists in certain classes of cases. Where a subpoena seeks the identity of a journalist's confidential source in a civil case, including a defamation case in which the reporter or media organization is a party, the reporter enjoys the privilege, and the party seeking the information must demonstrate with substantial evidence that the information is relevant and not available elsewhere, and that its need for the information is compelling. Miller v. Transamerican Press, Inc., 621 F.2d 721, 726, as modified, 628 F.2d 932 (5th Cir. 1980); In re Selcraig, 705 F.2d 789, 792, 799 (5th Cir. 1983). However, where a grand jury or a party in a criminal case seeks the non-confidential work product or testimony of a journalist, the Fifth Circuit recognizes no privilege. United States v. Smith, 135 F.3d 963, 968, 971-72 (5th Cir. 1998). Rather, the Fifth Circuit has held that the First Amendment protects journalists' non-confidential materials and sources only from criminal process issued with intent to harass. Id. at 969, 971.

The law in the Fifth Circuit remains unsettled regarding whether a qualified privilege is available against a subpoena in a civil case that seeks the identity of a journalist's non-confidential sources or work product, though various dicta suggest the Fifth Circuit may not afford the journalist a privilege in those instances. Pressey v. Patterson, 898 F.2d 1018, 1022 n.4 (5th Cir. 1990); Smith, 135 F.3d at 972. Finally, it remains an open question whether a reporter's confidential sources or work product sought in a grand jury proceeding or criminal case are entitled to qualified protection. Certain language in Smith, however, including its construction of Branzburg, may cloud the availability of those rights. Smith, 135 F.3d at 968, 971-72.

In 2002, the Fifth Circuit reaffirmed in an unpublished decision its position that qualified First Amendment protection of journalists from subpoenas is at its nadir when brought to bear against grand jury subpoenas. In re Grand Jury Subpoenas, 29 Media L. Rep. 2301, 2303-04 (5th Cir. Aug. 17, 2002) (per curiam). Without deciding whether the information sought by the grand jury was confidential or not, the court declined to reverse the district court's contempt order, which had remanded freelance writer Vanessa Leggett to custody following her refusal to produce all originals and copies of her notes and tapes of interviews regarding a celebrated Houston murder. Id. at 2303. Thus, Leggett remained incarcerated until January 4, 2002, when the term of the grand jury expired, or 168 days all told -- the longest period of incarceration of a contemnor-journalist in the history of the United States at that time. A subsequent grand jury returned an indictment without the need for Leggett's testimony.

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II. Authority for and source of the right

The Supreme Court's plurality decision in Branzburg v. Hayes, 408 U.S. 665, 92 S. Ct. 2646 (1972), is the source of the law of the Fifth Circuit on the existence of a First Amendment qualified reporter's privilege. The law of the circuit depends heavily on the Fifth Circuit's narrow view of the holding in that case.

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

The Fifth Circuit later extended the qualified privilege recognized in Miller to confidential information sought in civil cases generally. In re Selcraig, 705 F.2d 789, 792 (5th Cir. 1983). In so doing, the court noted that its recognition of a qualified reporter's privilege in Miller "was dictated by our careful reading of the plurality and concurring opinions in Branzburg." Id.

Finally, when considering a reporter's attempt to invoke the privilege to protect non-confidential information subpoenaed in a criminal trial, the Fifth Circuit disagreed with those circuits that have derived a broad, qualified privilege in criminal cases from Justice Powell's concurrence in Branzburg. United States v. Smith, 135 F.3d 963, 969 (5th Cir. 1998). Rather, the Smith court noted that Branzburg "explicitly rejected a qualified news reporters' privilege shielding confidential source information from grand juries," id., and that Justice Powell's concurrence merely "had in mind the 'harassment of newsmen.'" Id. (quoting Branzburg, 408 U.S. at 709, 92 S. Ct. at 2671 (Powell, J., concurring)). The Fifth Circuit then equated the interests surrounding grand jury proceedings to those that arise in criminal trials. Id. at 971. As such, the Fifth Circuit in Smith held that no First Amendment qualified privilege exists for non-confidential information sought in criminal cases generally. Id. at 972.

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A. Shield law statute

Texas and Louisiana have shield law statutes that provide for a reporter’s privilege. Texas’s statute provides a qualified testimonial privilege in civil cases. See Tex. Civ. Prac. & Rem. Code §§ 22.021-22.027. There is also a criminal section which addresses confidential sources, unpublished work product and non-confidential sources, and published information. Tex. Code. Crim. P. §§ 38.11-38.111. Louisiana law applies to both civil and criminal proceedings, and protects reporters from having to disclose their sources, La. R.S. 45:1451-1459, and from having to disclose unpublished information. La. R.S. 45:1459. Mississippi does not have a shield law statute.

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B. State constitutional provision

C. Federal constitutional provision

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

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D. Other sources

III. Scope of protection

A. Generally

In criminal cases involving non-confidential sources and materials, the Fifth Circuit has taken a strict view of the scope of the privilege established in Branzburg v. Hayes, 408 U.S. 665 (1972), refusing to extend a qualified privilege to reporters except where the right to subpoena is not used in good faith by the government, but instead to harass the reporter. See United States v. Smith, 135 F.3d 963, 969-71 (5th Cir. 1998). The privilege exists in civil cases to protect the reporter from having to reveal the identity of confidential sources; the court follows a balancing test to weigh the interests protected by the privilege against the interest implicated when a party seeks the information. See Miller v. Transamerican Press, Inc., 621 F.2d 721, 726, as modified, 628 F.2d 932 (5th Cir. 1980). Fifth Circuit opinions regarding the reporter's privilege cite to other circuits; the Court has recognized in criminal cases that other circuits grant a broader privilege, but notes some similarities to other circuits in the civil context. Smith, 135 F.3d at 969 & 972 n.4; see also Miller, 621 F.2d at 726 (considering civil libel cases); In re Selcraig, 705 F.2d 789, 799 n.14 (5th Cir. 1983) (considering civil cases generally).

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B. Absolute or qualified privilege

The reporter's privilege in the Fifth Circuit is a qualified privilege, where it exists at all. In civil cases, the Fifth Circuit recognizes a qualified privilege not to disclose the identity of confidential informants. Miller v. Transamerican Press, Inc., 621 F.2d 721, 725 (5th Cir. 1980), as modified, 628 F.2d 932 (5th Cir. 1980); In re Selcraig, 705 F.2d 789, 797 (5th Cir. 1983). Under the Fifth Circuit's reading of Branzburg v. Hayes, 408 U.S. 665 (1972), there is no privilege in criminal cases involving non-confidential sources and materials except to protect the newsperson from harassment, as where the grand jury does not conduct its investigation in good faith. See United States v. Smith, 135 F.3d 963, 969 (5th Cir. 1998).

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C. Type of case

1. Civil

The Fifth Circuit has applied a three-part test to determine the scope of the privilege not to reveal the identity of a confidential source in civil suits for libel in which the media is a party: (1) is the information relevant; (2) can the information be obtained by alternative means; and (3) is there a compelling interest in the information? Miller v. Transamerican Press, Inc., 621 F.2d 721, 726 (citing Garland v. Torre, 259 F.2d 545 (2d Cir. 1958)), as modified, 628 F.2d 932 (5th Cir. 1980). On rehearing, the panel supplemented its opinion, clarifying what evidence the movant must show to overcome the privilege. Miller, 628 F.2d 932, 932 (5th Cir. 1980). Merely pleading a case of libel does not defeat the privilege; rather, the plaintiff must first show "substantial evidence that the challenged statement was published and is both factually untrue and defamatory; that reasonable efforts to discover the information from alternative sources have been made and that no other reasonable source is available; and that knowledge of the identity of the informant is necessary to proper preparation and presentation of the case." Miller, 628 F.2d at 932 (emphasis added); see In re Selcraig, 705 F.2d 789, 792 (5th Cir. 1983).

Moreover, the Fifth Circuit has adopted the qualified privilege in Miller in a non-libel, civil case in which the reporter was not a party. Rather, the challenged subpoena sought the identity of the reporter's confidential informant only because that information would help the plaintiff prove his case for punitive damages. In re Selcraig, 705 F.2d 789, 797-99 (5th Cir. 1983) (finding no necessity established because plaintiff had not proved by more than mere allegation a prima facie case for liability and the reporter's information was relevant only to damages). The Fifth Circuit has not explicitly held that the qualified privilege applies to all civil cases in all instances, however. For example, the Fifth Circuit has not addressed whether confidential information obtained from a confidential informant other than her identity would be covered by the privilege.

In civil cases involving the non-confidential work product of non-party reporters, district courts have recognized the application of the qualified privilege. Brinston v. Dunn, 919 F. Supp. 240, 244 (S.D. Miss. 1996); Holland v. Centennial Homes, Inc., 1993 WL 755590, at *6, 22 Media L. Rep. 2270 (N.D. Tex. 1993). However, the Fifth Circuit later questioned whether a qualified privilege protects the press where no confidential relationship exists between the reporter and the informant. See United States v. Smith, 135 F.3d 963, 972 (5th Cir. 1998) (citing Pressey v. Patterson, 898 F.2d 1018, 1022 n.4 (5th Cir. 1990) (stating in dicta that a confidential relationship may be a necessary condition for establishing a privilege)); see also De La Paz v. Henry's Diner, Inc., 946 F. Supp. 484, 485 (N.D. Tex. 1996) (declining to extend the privilege to non-confidential material in a civil matter); Cinel v. Connick, 792 F. Supp. 492, 498-500 (E.D. La. 1992) (in civil matter involving court order that required media to produce an inventory of materials in its possession for in camera review, there was no qualified privilege either under federal law or Louisiana shield statute, La. R.S. 45:1459).

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2. Criminal

The Fifth Circuit's treatment of criminal cases -- both grand jury proceedings and criminal trials -- differs from its treatment of civil cases. According to the Fifth Circuit's reading of Branzburg v. Hayes, 408 U.S. 665 (1972), there is no qualified First Amendment privilege available in criminal cases involving non-confidential sources and materials, except in so much as the press is entitled to remain free from governmental harassment, as when the grand jury does not conduct its investigation in good faith. United States v. Smith, 135 F.3d 963, 969 (5th Cir. 1998).

In Smith, the Fifth Circuit opined that the interests raised in the grand jury proceeding at issue in Branzburg were not meaningfully different than those in the criminal trial context in Smith. Id. at 971. Rather, the public's interest in prosecuting criminals was the same in both instances. Id. Thus, except where the government acts to harass the press, no privilege under Branzburg exists against producing the identity of non-confidential sources or non-confidential work product in the criminal context. Id.

The prosecution in Smith subpoenaed an unaired, non-confidential videotape recording of an interview of the defendant by a local television station. Id. at 966. The Smith court distinguished Miller, which had recognized a qualified privilege in civil libel cases, asserting that the public interest in obtaining the information is weaker in civil cases than in the criminal context. Id. at 971-72. Thus, no qualified privilege applied in the criminal context for non-confidential information, and the government did not need to meet any special First Amendment balancing test. Instead, absent the qualified privilege, the government merely needed to identify the information it sought with sufficient specificity and show that it was relevant and admissible -- that is, the general test for the sufficiency of any subpoena. Id. at 972. It is worth noting, however, that the panel in Smith did not specifically consider whether the identity of a confidential source or information obtained from such a source also lacks the protection of a First Amendment qualified privilege.

In addition, although Smith recognized that a defendant may possess a Sixth Amendment right to non-confidential work product, because the defendant in Smith had not joined the government's appeal, the court did not reach that issue. Smith, 135 F.3d at 970 n.3. A district court, however, has limited a criminal defendant's ability to invoke his Sixth Amendment right to compulsory process against reporters. Campbell v. Klevenhagen, 760 F. Supp. 1206, 1214-16 (S.D. Tex. 1991). The defendant sought to compel two reporters to observe the trial and identify any confidential sources they recognized in the courtroom, who then might provide the defendant with impeachment information. Id. The court stated that the defendant's right to compulsory process could only compel testimony in front of the trier of fact (citing Taylor v. Illinois, 108 S. Ct. 646, 652 (1988)). Id. at 1214. The court also upheld the privilege under the test from Miller because the reporters had no material exculpatory evidence to offer, could not identify their sources, and had indicated that the defense had access to other exculpatory testimony. Id. at 1215-16. Note that, while Campbell compelled criminal defendants under Miller to show that the testimony they seek is material and favorable to their defense, id. at 1214, it remains unclear to what extent the Fifth Circuit will apply Miller's balancing test to criminal cases in the wake of Smith.

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3. Grand jury

The Fifth Circuit construes Branzburg v. Hayes, 408 U.S. 665 (1972), narrowly when considering grand jury subpoenas or subpoenas in criminal trials seeking non-confidential information. See In re Grand Jury Subpoenas, 29 Media L. Rep. 2301 (5th Cir. Aug. 17, 2002) (per curiam) (unpublished). It has declined to recognize a qualified reporter's privilege for non-confidential information in the context of a criminal case. See United States v. Smith, 135 F.3d 963, 971-72 (5th Cir. 1998). It further has equated the compulsory process at issue in the criminal context with the grand jury subpoena at issue in Branzburg. Id. at 971. Thus, absent a showing of harassment, reporters must comply with subpoenas for non-confidential information in grand jury and criminal cases in the Fifth Circuit, so long as the information sought is identified with sufficient specificity, is relevant, and is admissible. Id.

No Fifth Circuit case has decided whether confidential information provided in response to grand jury subpoenas may be withheld, post-trial, from public view under the reporter’s privilege doctrine. However, one district court has indicated a willingness to consider such an argument. See United States v. Valencia, 2006 WL 3707867, at *10 (S.D. Tex. 2006) (on a motion for limited protective order, concluding that redactions sufficiently protected the identity of the publishers’ sources such that the limited disclosures did not undermine any genuine First Amendment interest the publishers might have in protecting their data and sources).

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D. Information and/or identity of source

The two leading civil cases in the Fifth Circuit construing the reporter's privilege apply the privilege specifically to protecting the identity of confidential sources. Miller v. Transamerican Press, Inc., 621 F.2d 721, 725, as modified, 628 F.2d 932 (5th Cir. 1980); In re Selcraig, 705 F.2d 789, 792 (5th Cir. 1983). There is no Fifth Circuit case directly addressing information that implicitly identifies a source of information, though the Selcraig court approved the district court's graduated methodology under which it began an in camera inquiry of the reporter with general questions, asking increasingly specific questions only as necessary, in order to uphold the privilege to the greatest extent possible. See Selcraig, 705 F.2d at 795, 799.

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E. Confidential and/or nonconfidential information

The Fifth Circuit extends a qualified privilege in civil cases to prevent the disclosure of the identity of confidential sources. Miller v. Transamerican Press, Inc., 621 F.2d 721, 725, as modified, 628 F.2d 932 (5th Cir. 1980); In re Selcraig, 705 F.2d 789, 797 (5th Cir. 1983). The Fifth Circuit has not, however, specifically considered whether the protection extends to information obtained from a source under a promise of confidentiality. See Miller, 621 F.2d 721.

Conversely, the Fifth Circuit has stated that it has never recognized a reporter's privilege for non-confidential information, noting that for testimonial privileges, "the existence of confidential relationship that the law should foster is critical to the establishment of a privilege." United States v. Smith, 135 F.3d 963, 971 (5th Cir. 1998). The Court cited dicta from its decision in Pressey v. Patterson, 898 F.2d 1018, 1022 n.4 (5th Cir. 1990), theorizing that, indeed, confidentiality may be a necessary condition for the application of a qualified First Amendment reporter's privilege. Smith, 135 F.3d at 972. The Smith court further held that, in criminal cases, no reporter's privilege protects non-confidential information. Id. Absent such a privilege, the government need merely identify the information it seeks with sufficient specificity and show that it is relevant and admissible. Id.

Before Smith was decided, district courts were split regarding the application of the reporter's privilege to non-confidential information. For instance, a district court upheld the privilege in a civil case seeking notes and materials for possible impeachment purposes from a non-party reporter who did not witness the facts at issue. Holland v. Centennial Homes, Inc., 1993 WL 755590, at *6, 22 Media L. Rep. 2270 (N.D. Tex. 1993); see Brinston v. Dunn, 919 F. Supp. 240, 243--44 (S.D. Miss. 1996) (in civil case, recognizing privilege for non-confidential unpublished information obtained by reporter). However, other district courts had declined to extend the privilege to non-confidential material in civil matters. E.g., De La Paz v. Henry's Diner, Inc., 946 F. Supp. 484, 485 (N.D. Tex. 1996) (declining to recognize qualified privilege for non-confidential information and, thus, refusing quash subpoena duces tecum in civil matter seeking non-party reporter's interview tapes and notes of non-confidential source); Cinel v. Connick, 792 F. Supp. 492, 498-500 (E.D. La. 1992) (where court in civil matter ordered submission of inventory of materials held by media defendants for in camera review, no privilege under federal law or Louisiana shield statute, La. R.S. 45:1459).

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F. Published and/or non-published material

No Fifth Circuit case has identified any relevant distinction between published and non-published material. See Porter v. Dauthier, No. 14-41, 2014 WL 6674468, at *4 (M.D. La. Nov. 25, 2014) (noting that the Fifth Circuit has not addressed whether unpublished material is protected).  However, the court has indicated that the media's non-confidential work product is less deserving of protection than the identity of a confidential source, especially in a criminal case. United States v. Smith, 135 F.3d 963, 970 (5th Cir. 1998). Turning aside a suggestion to establish a qualified reporter's work-product privilege similar to the attorney work-product privilege, the Court held that, at least in the criminal context, Branzburg provided scant justification for doing so. Smith, 135 F.3d at 969-70. The Smith court also dismissed the media's concerns about being annexed as an investigative arm of the government, the risk of being overburdened by discovery requests, and the resulting incentive for the press to destroy its work product or to hesitate in reporting about criminal matters. See id.

Furthermore, the Smith court reasoned that the risk of chilling confidential sources from approaching the media was not implicated for non-confidential work product, which presumably will involve only the rights of the journalist who creates the non-confidential work product, not those of an informant. See id. at 970. Given this analysis, it remains to be seen whether a privilege exists for work product, even in civil cases, after Smith. Several courts had considered the issue before Smith, with mixed results. Compare Brinston v. Dunn, 919 F. Supp. 240, 244 (S.D. Miss. 1996) (in civil case, upholding privilege for non-confidential, unpublished information obtained by non-party reporter) and Holland v. Centennial Homes, Inc., 1993 WL 755590, at *6, 22 Media L. Rep. 2270 (N.D. Tex. 1993) (in civil case, upholding privilege for non-confidential work product of non-party reporter), with De La Paz v. Henry's Diner, Inc., 946 F. Supp. 484, 485 (N.D. Tex. 1996) (declining to extend privilege to non-party reporter's non-confidential material in a civil matter) and Cinel v. Connick, 792 F. Supp. 492, 498-500 (E.D. La. 1992) (declining to extend privilege to inventory of materials held by media defendants for in camera review).

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G. Reporter's personal observations

Although the qualified reporter's privilege in some circuits does not protect journalists who are eyewitnesses, the Fifth Circuit has not specifically exempted eyewitnesses from the compass of the privilege. Instead, the court has indicated that the privilege that applies in civil cases might be overcome if the journalist is a "percipient witness to a fact at issue." In re Selcraig, 705 F.2d 789, 798-99 (5th Cir. 1983). Of course, the party seeking the information must first satisfy the Miller test: that is, he must demonstrate with sufficient evidence that the journalist's testimony is relevant, unavailable elsewhere, and necessary to the resolution of the case. Id. If such a showing is made, the journalist's "qualified privilege must succumb to . . . [the] discovery needs" of the party seeking the information. Id. at 799.

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H. Media as a party

The Fifth Circuit does not differentiate between cases where the media is a party and where it is not. Rather, the Fifth Circuit has stated that the elements of the privilege announced in Miller v. Transamerican Press, Inc., 621 F.2d 721, as modified, 628 F.2d 932 (5th Cir. 1980), a libel case against the media, provide an "adequate shield" for reporters even in civil cases where the reporter is a non-party witness. In re Selcraig, 705 F.2d 789, 799 (5th Cir. 1983). But see Holland v. Centennial Homes, Inc., 1993 WL 755590, at *4, 22 Media L. Rep. 2270 (N.D. Tex. 1993) (stating that showing of "necessity" under the Miller test varies depending on whether reporter is a party, citing Selcraig).

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I. Defamation actions

There is no explicit "libel exception" precluding the application of the privilege. Indeed, Miller v. Transamerican Press, Inc., 621 F.2d 721, as modified, 628 F.2d 932 (5th Cir. 1980), the leading case adopting the qualified privilege in the Fifth Circuit, was a libel case against the media.

In Miller, the court considered a libel suit against a magazine's editor and publisher as well as the corporation that published the magazine. The plaintiff, Miller, was a public figure, and accordingly faced the burden of demonstrating that the media defendants published with "actual malice," that is, with knowledge of the falsity of their publication or reckless disregard for its truth. Id. at 724. To help him meet that burden, Miller sought the identity of the confidential source of the allegedly defamatory passage. Id. at 723. The journalist asserted his reporter's privilege as a bar to identifying his confidential source. The court distinguished Branzburg v. Hayes, 408 U.S. 665 (1972), holding that the reporter's First Amendment interest in protecting his confidential sources in a libel case is stronger than in the context of a grand jury proceeding. Miller, 621 F.2d at 725. The Miller court also distinguished the Supreme Court's decision in Herbert v. Lando, 441 U.S. 153, 169-70 (1979), which had permitted discovery of the media's editorial process in a libel case in which a public figure had to prove actual malice, recognizing that a journalist's confidential sources enjoy greater First Amendment protection than a journalist's thought processes. Miller, 621 F.2d at 724-25.

Miller applied a three-part test to determine the scope of the qualified privilege not to reveal confidential source material: (1) is the information relevant; (2) can the information be obtained by alternative means, and (3) is there a compelling interest in the information? Id. at 726 (citing Garland v. Torre, 259 F.2d 545 (2d Cir. 1958)). On rehearing, the court supplemented its opinion, explaining that a plaintiff must present substantial evidence to overcome the privilege. Miller, 628 F.2d 932, 932 (5th Cir. 1980). Specifically, a plaintiff must provide "substantial evidence that the challenged statement was published and is both factually untrue and defamatory; that reasonable efforts to discover the information from alternative sources have been made and that no other reasonable source is available; and that knowledge of the identity of the informant is necessary to proper preparation and presentation of the case." Id. at 932.

Nevertheless, although Miller adopted the qualified reporter's privilege for libel cases in the Fifth Circuit, under the facts of that case the court held that the privilege did not protect the identity of the confidential informant, because the plaintiff could not prove actual malice except by examining the reliability of the journalist's confidential informant. Id. at 726.

No reported Fifth Circuit case addresses the question whether courts will assess different penalties -- such as instructing the jury to presume the reporter had no source, or presuming actual malice, or entering judgment against the media defendant -- for a reporter's failure to comply with compulsory process in libel cases.

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IV. Who is covered

A. Statutory and case law definitions

1. Traditional news gatherers

a. Reporter

The Fifth Circuit has not decided the question of who qualifies as a journalist for purposes of asserting the privilege. See In re Grand Jury Subpoenas, 2001 WL 940433, at n.4, 29 Media L. Rep. 2301, 2303 n.4 (5th Cir. Aug. 17, 2001) (noting that the Fifth Circuit has not addressed this issue). In In re Grand Jury Subpoenas, the court indicated that, were the question before it, it would look to the test devised in other circuits, which asks whether the person claiming the privilege (1) is engaged in investigative reporting; (2) is gathering news; and (3) possesses the intent at the inception of the news gathering process to disseminate the news to the public. Id.

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b. Editor

No reported decision of the Fifth Circuit addresses who constitutes an "editor" for purposes of asserting the qualified privilege.

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c. News

No reported decision of the Fifth Circuit addresses what constitutes "news" for purposes of asserting the qualified privilege.

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d. Photo journalist

No reported decision of the Fifth Circuit addresses who constitutes a "photojournalist" for purposes of asserting the qualified privilege.

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e. News organization/medium

No reported decision of the Fifth Circuit holds that a particular news medium cannot claim the privilege.

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2. Others, including non-traditional news gatherers

Although citizen reporting has increased in recent years, particularly with the advent of the internet, the Fifth Circuit has not yet decided whether the protections of the reporter’s privilege extend to non-professional journalists. A district court has upheld the privilege for a freelance reporter submitting an article to a newspaper. See Holland v. Centennial Homes, Inc., 1993 WL 755590, 22 Media L. Rep. 2270 (N.D. Tex. 1993). Further, in In re Grand Jury Subpoenas, the Fifth Circuit assumed without deciding that the privilege could apply to a freelance writer. 2001 WL 940433, 29 Media L. Rep. 2301, 2303 (5th Cir. Aug. 17, 2001). Nonetheless, the opinion questions the application of the privilege to "a virtually unpublished freelance writer operating without an employer or a contract for publication," id. at 2303 & n.4, and notes Leggett's publication history: "Leggett's body of published work consists of a single article in an FBI publication, Varieties of Homicide, and one fictional short story. To date, Leggett has published nothing on the Angleton murder." Id. at 2302.

A district court has also suggested that the privilege may cover publishers of industry reports and market price indices. See United States v. Valencia, 2006 WL 3707867, at *1, 10 (S.D. Tex. 2006) (concluding that redactions of information provided in response to grand jury subpoenas sufficiently protected the identity of the publishers’ sources and thus did not “undermine any genuine interest the Publishers might have in protecting their data and sources in other civil proceedings”).

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B. Whose privilege is it?

No reported decision of the Fifth Circuit addresses whether the reporter or the reporter's employer owns the privilege. Similarly, no reported decision of the Fifth Circuit explicitly resolves whether the privilege belongs to the source, the reporter, or both. The court has stated, however, that "a reporter has a First Amendment privilege" against revealing confidential sources in civil cases, Miller, 621 F.2d at 724 (emphasis added), and that "the first amendment shields a reporter from being required to disclose the identity of persons who have imparted information to him in confidence," Selcraig, 705 F.2d at 792 (emphasis added); see also Lousteau v. City of Canton, No. 3:11cv676, 2013 WL 1827738, at *2 (S.D. Miss. Apr. 30, 2013) (noting that a news reporter waives his privilege by filing a lawsuit “about which his sources may have information that goes to the heart of a claim or defense”).

On the other hand, at least one Fifth Circuit case implies that in some circumstances the privilege may be waived by the source. In a civil action against a police officer, the district court had upheld a reporter's invocation of the privilege against disclosing tapes of a conversation with the officer; in dicta, the Fifth Circuit criticized the lower court's enforcement of the privilege, because the officer was evidently not a confidential source and because he had expressly waived the privilege. See Pressey v. Patterson, 898 F.2d 1018, 1022 n.4 (5th Cir. 1990). Thus, Pressey may indicate that, at least where the material in question relates directly to the source and is not merely the reporter's work product, the source may be empowered to waive the privilege. But see Holland v. Centennial Homes, Inc., 1993 WL 755590, at *6 n.4, 22 Media L. Rep. 2270 (N.D. Tex. 1993) (noting that, although the Pressey footnote acknowledged that the police officer may have waived the privilege, it did not address whether the reporter had done so).

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V. Procedures for issuing and contesting subpoenas

A. What subpoena server must do

1. Service of subpoena, time

No reported decision of the Fifth Circuit addresses when a subpoena must be served on a member of the news media. Generally, the court from which a subpoena was issued may quash or modify it if the court finds that the subpoena fails to allow reasonable time for compliance. Fed. R. Civ. P. 45(c)(3)(A)(i); see Wiwa v. Royal Dutch Petroleum Co., 392 F.3d 812, 818 (5th Cir. 2004); Brown v. Greyhound Lines, Inc., 1995 WL 811965 (S.D. Tex. 1995) (finding notice of less than 24 hours unreasonable). The Fifth Circuit saw no error when a district court quashed subpoenas duces tecum in a criminal case as untimely and otherwise flawed where they were served on the day jury selection was completed. United States v. Wilson, 732 F.2d 404, 412 (5th Cir. 1984).

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2. Deposit of security

No reported decision of the Fifth Circuit addresses whether a subpoenaing party must deposit any security in order to procure testimony or materials from a reporter.

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3. Filing of affidavit

The Fifth Circuit has held that, to overcome the reporter's privilege, a subpoenaing party must demonstrate by sworn affidavit or deposition, not merely by conclusory allegations, that it can make out a prima facie case for which the disclosure of the identity of a reporter's confidential news source will be a necessary element of proof. In re Selcraig, 705 F.2d 789, 797-98 (5th Cir. 1983).

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4. Judicial approval

No reported decision of the Fifth Circuit has addressed whether a judge or magistrate must approve a subpoena before a party can serve it on a journalist or media organization. 28 C.F.R. § 50.10 outlines the government's responsibilities when subpoenaing the media. See In re Grand Jury Subpoenas, 2001 WL 940433, 29 Media L. Rep. 2301 (5th Cir. Aug. 17, 2001) (per curiam) (unpublished).

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5. Service of police or other administrative subpoenas

No reported decision of the Fifth Circuit has considered whether any special rules exist regarding police or other administrative subpoenas.

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B. How to Quash

1. Contact other party first

Rule 45 requires that a party objecting to a subpoena for documents give notice in writing to the subpoenaing party within 14 days of receipt of the subpoena. Fed. R. Civ. P. 45(d)(2)(B). If a party objects to a subpoena on the grounds that the material requested is privileged, it must expressly state this in the objection and include a description of the privileged documents, which could be used by the subpoenaing party to contest the privilege. Once a party objects to a subpoena, the subpoenaed materials may only be obtained through a court order to compel production. Id.

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

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2. Filing an objection or a notice of intent

Regardless of whether a party intends to file a motion to quash, it should notify the subpoenaing party within 14 days of receipt of the subpoena if it objects to producing the subpoenaed materials so as to shift to the other party the burden of seeking an order to compel. Fed. R. Civ. P. 45(d)(2)(B). Whether a party must file a notice of intent to quash before filing a motion to quash will be a matter of the local rules for the federal district court in which the motion to quash will be filed.

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3. File a motion to quash

a. Which court?

The issuing court for all subpoenas is “the court where the action is pending.” Fed. R. Civ. P. 45(a)(2). This rule was amended in 2013 to simplify the procedure for obtaining a subpoena. Under the prior rule, where the subpoena was issued depended on the subpoena’s purpose.

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b. Motion to compel

Once a party sends its written objection to the subpoenaing party, the subpoenaed testimony or material may only be obtained through an order to compel. Fed. R. Civ. P. 45(d)(2)(B).

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c. Timing

Under Rule 45, a court is authorized to quash a subpoena "on timely motion." Fed. R. Civ. P. 45(d)(3)(A). A party resisting a subpoena "may" assert objections to a subpoena within 14 days of receipt, or before the time provided in the subpoena if less than 14 days. Id. 45(d)(2)(B). A district court upheld a magistrate judge's finding that a subpoenaed party waived a particular objection to a subpoena that was not made until more than six weeks after the subpoena was served. Seabulk Towing, Inc. v. Oceanografia S.A. de C.V., 2002 WL 398771 (E.D. La. Mar. 12, 2002) (citing Fed. R. Civ. P. 45(c)(2)(B) (amended 2013)). The magistrate judge had stated that a party's failure to serve written objections within the time specified in Rule 45 constituted waiver. 2002 WL 188419, at *1 (E.D. La. Feb. 4, 2002).

The Fifth Circuit noted but did not consider a district court's finding that a motion to quash a subpoena was untimely where the appellants had already appeared before the grand jury, been granted use immunity, and been held in contempt twice before filing the motion to quash. In re Grand Jury Proceedings, 613 F.2d 62, 64 (5th Cir. 1980).

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d. Language

No reported decision of the Fifth Circuit requires the movant to recite any specific language in a motion to quash. However, a certificate of conference and proposed order may be required under the applicable local rules. See, e.g., N.D. Tex. L.R. 7.1 (requiring a brief, certificate of conference, and proposed order to accompany any motion to compel or to quash).

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e. Additional material

Although no reported decision of the Fifth Circuit addresses whether any specific additional material should be attached to motions and memoranda to quash asserted by media organizations and journalists, the Fifth Circuit has recognized that the press, like other parties, "has a relevant and protectible interest in not being unduly burdened, as, for example, by overly broad subpoenas for large amounts of data of dubious relevance." United States v. Smith, 135 F.3d 963, 971 (5th Cir. 1998). Such a burden, however, "is case specific." Id. Further, the court reasoned that "[w]e are pointed to no empirical basis for assertions that the media will avoid important stories or destroy its archives in response to rare requests for criminal discovery." Id. As such, a party challenging a subpoena based on the burden it imposes on the media as an institution would be advised to submit any "empirical" evidence supporting that proposition -- as well as evidence of the specific burden imposed by the subpoena at issue in the case.

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4. In camera review

a. Necessity

Although there is no specific requirement that judges conduct an in camera review of materials prior to deciding a motion to quash, United States v. Arditti, 955 F.2d 331, 345 (5th Cir. 1992), courts often do. See, e.g., Miller v. Transamerican Press, Inc., 621 F.2d 721, 723, as modified 628 F.2d 932 (5th Cir. 1980); In re Selcraig, 705 F.2d 789, 795 (5th Cir. 1983). In Arditti, the court held that the trial judge did not abuse its discretion when it declined to review documents subpoenaed by the IRS before determining that they were not privileged. Arditti, 955 F.2d at 345 (5th Cir. 1992). However, in Selcraig, the trial court endeavored to elicit the subpoenaed testimony in camera prior to revealing the information to the plaintiff's lawyers in order to determine whether it was relevant to the plaintiff's claim. In re Selcraig, 705 F.2d at 794-95. The court also undertook an in camera inspection in Miller before concluding that certain documents and summaries had to be produced to the plaintiff. Miller, 621 F.2d at 723.

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A reporter is entitled to request a stay pending appeal from an adverse ruling, but such a stay is not necessarily guaranteed from the reporter's consent to the judge's in camera inspection. Rather, a reporter must follow the standard procedures for filing an appeal and requesting a stay pending appellate resolution. Fed. R. App. P. 8(a)(1)(A). In Selcraig, for instance, the trial court ordered the imprisonment of a reporter for refusing to identify confidential sources. In re Selcraig, 705 F.2d 789, 795 (5th Cir. 1983). The order for imprisonment was stayed, however, pending the reporter's appeal of the trial judge's contempt determination. Id.

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c. Consequences of refusing

As in any case of non-compliance with a court instruction, a reporter who refuses to consent to an in camera review of subpoenaed materials may be held in contempt, and subjected to a fine or imprisonment. In re Selcraig, 705 F.2d 789, 795 (5th Cir. 1983). In Selcraig, the trial court held a reporter in civil contempt for refusing to answer the judge's questions regarding his confidential sources in camera. Id. at 792. The Fifth Circuit reversed the contempt finding because the subpoenaing party did not demonstrate that the information was necessary to the presentation of his claim. However, it did express approval for the trial court's method of questioning the reporter in camera and suggested that it "serve as a model for any other inquiries." Id. at 799.

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5. Briefing schedule

The local rules of each district court typically will provide a timetable for briefing and opposing motions filed in that district. For example, the Northern District of Texas requires a movant to accompany any motion to quash with a brief in support and a proposed order. N.D. Tex. L.R. 7.1(d), (h). Non-movants must file response briefs to an opposed motion within 21 days of the date on which the motion and brief were filed. Id. 7.1(e). Unless otherwise directed by the presiding judge, the movant's reply brief must be filed within 14 days of the filing of the response brief. Id. 7.1(f). Of course, a presiding judge may be willing to impose a modified briefing schedule if necessitated by the circumstances.

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6. Amicus briefs

The Fifth Circuit may accept amicus briefs. 5th Cir. L.R. 29, 31.2. In Selcraig, the court responded specifically to the assertions made by the amicus curiae regarding the reporter's privilege. In re Selcraig, 705 F.2d 789, 795 (5th Cir. 1983). Those wishing to file an amicus brief in the Fifth Circuit must file a motion within seven days after the filing of the principal brief whose position the amicus brief will support. 5th Cir. L.R. 29(a)(6). Similarly, in some instances amicus briefs may be filed in district courts with the permission of the presiding judge. See, e.g., N.D. Tex. L.R. 7.2(b).

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VI. Substantive law on contesting subpoenas

In civil cases, the Fifth Circuit has recognized a qualified privilege for reporters. Miller v. Transamerican Press, Inc., 621 F.2d 721, 723, as modified, 628 F.2d 932 (5th Cir. 1980); In re Selcraig, 705 F.2d 789, 792 (5th Cir. 1983). This privilege can be overcome only if the party seeking the information provides substantial evidence showing that the information is relevant, cannot be obtained by alternative means, and has a compelling interest in obtaining it. Miller, 621 F.2d at 726.

In Miller, a libel case, the court held that the reporter's privilege had been overcome because the plaintiff demonstrated that learning the identity of the confidential sources was the only way he could prove his claim of malice. Miller, 621 F.2d at 726. In Selcraig, a civil case in which the media was not a party, the court found that the party serving the subpoena had not demonstrated that the identity of a reporter's confidential sources was necessary to the presentation of the plaintiff's civil rights claim. In re Selcraig, 705 F.2d 789, 797 (5th Cir. 1983). The court reasoned that the identity of the sources would only be necessary if the plaintiff succeeded in proving a prima facie case for liability. Id. at 798.

The Fifth Circuit has not ruled on whether a reporter's privilege exists with regard to non-confidential sources of information in civil cases. However, in a footnote to Pressey v. Patterson, 898 F.2d 1018 (5th Cir. 1990), the court suggested that had the question been before it, it would have reversed the trial court's application of the privilege to tape recorded interviews with a non-confidential source. Id. at 1022 n.4. Similarly, Smith recognized that "the existence of a confidential relationship that the law should foster is critical to the establishment of a privilege," and that the Fifth Circuit has "never recognized a privilege for reporters not to reveal confidential information." United States v. Smith, 135 F.3d 963, 972 (5th Cir. 1998). Before Smith was decided, district courts had reached different conclusions regarding the use of the reporter's privilege to protect non-confidential sources. In De La Paz v. Henry's Diner, the court held that no privilege existed for tape recorded interviews with the defendants in a suit filed for negligence, defamation, invasion of privacy, and other claims. 946 F. Supp. 484 (N.D. Tex. 1996). In contrast, the district court for the Southern District of Mississippi held that the privilege applied and that the party seeking the information had not overcome the privilege because the subpoenaed testimony was not relevant and necessary to her motion for summary judgment. Brinston v. Dunn, 919 F. Supp. 240, 244 (S.D. Miss. 1996).

Finally, the Fifth Circuit has construed the Supreme Court's holding in Branzburg v. Hayes, 408 U.S. 665 (1972), to preclude application of a qualified First Amendment reporter's privilege against subpoenas seeking non-confidential sources in grand jury proceedings and criminal cases. In Smith, the Fifth Circuit read Branzburg to preclude assertion of a reporter's privilege when a journalist is subpoenaed to testify before a grand jury, and held that the public interests at issue in the criminal trial context were no less compelling than those at stake in the grand jury setting. United States v. Smith, 135 F.3d 963, 970-71 (1998). In so doing, it reversed the lower court's decision to quash a subpoena for videos of a reporter interviewing a suspected arsonist. Citing Branzburg, the court concluded that only when grand jury process is not exercised in good faith may the press receive protection for non-confidential information that is subpoenaed in a criminal case. Id. at 969, 971.

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A. Burden, standard of proof

The subpoenaing party bears the burden of proving the elements necessary to overcome a reporter's privilege. Miller v. Transamerican Press, Inc., 628 F.2d 932, 932 (5th Cir. 1980). Proof of each element of the test must be demonstrated by substantial evidence. Id.; In re Selcraig, 705 F.2d 789, 792 (5th Cir. 1983).

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B. Elements

The elements that must be met in the Fifth Circuit to overcome a reporter's privilege were derived from the Second Circuit's test in Garland v. Torre, 259 F.2d 545 (2d Cir. 1958). The Garland test, adopted by the court in Miller, asks: "1) is the information relevant; 2) can the information be obtained by alternative means, and 3) is there a compelling interest in the information?" Miller v. Transamerican Press, Inc., 621 F.2d 721, 726, as modified, 628 F.2d 932 (5th Cir. 1980). The privilege may only be overcome if the party serving the subpoena shows "i) substantial evidence that the challenged statement was published and is both factually untrue and defamatory; ii) reasonable efforts to discover the information from alternative sources have been made; iii) no other reasonable source is available; and iv) knowledge of the identity of the informant is necessary to proper preparation and presentation of the case." Miller v. Transamerican Press, Inc., 628 F.2d 932 (5th Cir. 1980). Because the reporter's privilege does not apply when non-confidential information is sought in grand jury proceedings or criminal cases, no special balancing is required for subpoenas seeking such information in those instances. United States v. Smith, 135 F.3d 963, 970-71 (1998). Absent the application of the privilege, the government need merely identify the information it seeks with sufficient specificity and show that it is relevant and admissible. Id. at 972.

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1. Relevance of material to case at bar

In both Miller and Selcraig, the Fifth Circuit held that, when the privilege applies, a party must provide substantial evidence that the sought-after information is relevant to overcome the privilege. Miller v. Transamerican Press, Inc., 628 F.2d 932, 932 (5th Cir. 1980); In re Selcraig, 705 F.2d 789, 792 (5th Cir. 1983). Regardless of whether the privilege exists in a particular case, however, the subpoenaing party always bears the burden of demonstrating that the material sought is relevant. United States v. Arditti, 955 F.2d 331, 345 (5th Cir. 1992). Subpoenaed material is considered relevant if it pertains to the charges or claims at issue in the case. Id. In Arditti, the court cited United States v. Nixon to illustrate how one might meet the relevance burden. In Nixon, the prosecutor was able to subpoena the President's audio tapes of conversations because he demonstrated, through the use of sworn testimony of participants in the conversations, that they might contain information relevant to the charges. Arditti, 955 F.2d at 345 (citing United States v. Nixon, 418 U.S. 683, 697-702 (1974)).

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2. Material unavailable from other sources

To overcome the reporter's privilege, the subpoenaing party must demonstrate with substantial evidence that the information sought is not available from other sources. Miller v. Transamerican Press, Inc., 621 F.2d 721, 726, as modified, 628 F.2d 932 (5th Cir. 1980). An attempt to obtain the information from other sources must be undertaken regardless of time, cost, or productivity concerns. Lenhart v. Thomas, 944 F. Supp. 525, 530 (S.D. Tex. 1996).

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a. How exhaustive must search be?

Whether a party has satisfactorily shown that it cannot obtain the information depends on the circumstances of the case. In Lenhart, the court considered whether the subpoenaing party had satisfied its burden of attempting to obtain the identity of certain grand jurors who spoke to a reporter through other means than subpoenaing the reporter. Lenhart v. Thomas, 944 F. Supp. 525, 530 (S.D. Tex. 1996). It noted that the requirement was not satisfied in a Supreme Court case when the subpoenaing party failed to depose 65 people in an effort to obtain the information. Id. (citing In re Roche, 448 U.S. 1312 (1980)). The district court then concluded that the subpoenaing party in Lenhart had not satisfied its burden of seeking the information from other sources, because its investigation consisted of merely asking the grand jurors to confess to speaking with the press. Id.

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

Prior to subpoenaing a member of the news media, a party should pursue any potential alternative sources for obtaining the information sought from the media. Lenhart v. Thomas, 944 F. Supp. 525, 530 (S.D. Tex. 1996). Substantial evidence is required in order to prove that reasonable efforts have been made to obtain the subpoenaed information from an alternative source and no other reasonable source is available. Miller v. Transamerican Press, Inc., 628 F.2d 932 (5th Cir. 1980).

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c. Source is an eyewitness to a crime

Given the holding in Smith that no privilege applies to non-confidential sources in grand jury proceedings or criminal cases, a reporter's obligation to disclose the identity of a non-confidential source in a criminal case will be the same whether or not the reporter is an eyewitness to the crime. United States v. Smith, 135 F.3d 963, 970-71 (5th Cir. 1998). Further, despite the availability of the qualified privilege in civil cases, Selcraig suggests that the privilege of a reporter who is called upon to testify as an eyewitness to a crime may be overcome. In re Selcraig, 705 F.2d 789, 799 (5th Cir. 1983). Because the reporter is "a percipient witness to a fact at issue," depending on the circumstances of the case, it may be that the reporter's "qualified privilege must succumb to . . . [the plaintiff's] discovery needs." Id.

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3. Balancing of interests

The Fifth Circuit has rejected a balancing of interests when determining whether to quash a subpoena for non-confidential materials sought in grand jury proceedings or criminal cases. United States v. Smith, 135 F.3d 963, 968 (5th Cir. 1998). According to Smith, Branzburg holds that "the needs of the press are not to be weighed against the needs of the government in considering grand jury subpoenas." Id.

In civil cases, however, the courts will often balance First Amendment interests against the subpoenaing party's interest in obtaining the testimony or material from the reporter. In Holland v. Centennial Homes, the court weighed the constitutional protections of the First Amendment against the interests favoring liberal discovery. 1993 WL 755590, at *3 (N.D. Tex. Dec. 21, 1993). It concluded that, in the absence of some compelling concern, the reporter's interest in protecting her work product outweighed any other interests. Id. at *6. In Miller, the court considered the difficulty the press might have in obtaining news if required to identify confidential sources. Miller v. Transamerican Press Inc., 621 F.2d 721, 725, as modified, 628 F.2d 932 (5th Cir. 1980). In Mize v. McGraw-Hill Inc., 86 F.R.D. 1 (S.D. Tex. 1980), the court weighed the confidentiality of the sources against the plaintiff's interest in disclosure of the sources. Id. at 3. In its analysis, it determined that the "ready disclosure of confidential sources would have a chilling, perhaps freezing effect on the free flow of truthful information." Id. According to the Mize court, the interest in protecting confidential sources is greater than the interest in protecting discovery of the editorial process, which the Supreme Court allowed in Herbert v. Lando, 441 U.S. 153 (1979). Mize, 86 F.R.D. at 3. Considering whether the relevant information could be obtained by other means may also be a part of balancing these interests. See Porter v. Dauthier, No. 14-41, 2014 WL 6674468, at *5 (M.D. La. Nov. 25, 2014).

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4. Subpoena not overbroad or unduly burdensome

The Federal Rules of Civil Procedure authorizes a court to quash a subpoena if it subjects a person to undue burden. Fed. R. Civ. P. 45(c)(3)(A)(iv). A court will find a subpoena imposes an undue burden if it makes overbroad requests. Wiwa v. Royal Dutch Petroleum Co., 392 F.3d 812, 818 (5th Cir. 2004); Tiberi v. Cigna Ins. Co., 40 F.3d 110, 112 (5th Cir. 1994). Whether a subpoena is overbroad depends upon the facts in each case. Williams v. City of Dallas, 178 F.R.D. 103, 109 (N.D. Tex. 1998). In making such a determination, courts usually examine whether the subpoena is limited by reasonable time restrictions or reasonably specific descriptions of the desired documents. Id. The party moving to quash bears the burden of proving that the subpoena imposes undue hardship. Id. Modification of an overbroad subpoena, however, is preferable to quashing it. Id. at 110. In Williams, the court found that, in light of the extensive media attention enjoyed by the plaintiff and his colleague, two well-known professional athletes, a subpoena that requested "any and all documents relating to Erik Williams [or] Michael Irvin" could include innumerable irrelevant stories published about them, and was therefore overbroad and would be modified. Id. at 108-10.

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5. Threat to human life

No reported case in the Fifth Circuit addresses whether the court should weigh whether the matter requested in a subpoena creates a threat to human life.

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6. Material is not cumulative

In civil cases, if the information sought is already available from other sources, it may not be subpoenaed under the reporter's privilege. Miller v. Transamerican Press, Inc., 621 F.2d 721, 725, as modified, 628 F.2d 932 (5th Cir. 1980). If the subpoenaed material would provide new information that is necessary to the case and unobtainable from other sources, however, the reporter's privilege might be more readily overcome. Miller, 628 F.2d 932 (5th Cir. 1980).

In criminal cases involving non-confidential sources or information, the privilege does not apply. United States v. Smith, 135 F.3d 963, 971 (5th Cir. 1998). Instead, absent the qualified privilege, the government merely needs to identify the information it seeks with sufficient specificity and show that it is relevant and admissible -- that is, the general test for the sufficiency of any subpoena. Id. at 972. Of course, purely cumulative material may not satisfy the test for relevancy under the Federal Rules of Evidence. See Fed. R. Evid. 401. In Smith, however, the Fifth Circuit disagreed with the district court's conclusion based on its in camera inspection that the information sought in that case was cumulative, because "[m]ultiple contradictory stories told by a defendant can demonstrate a consciousness of guilt." Smith, 135 F.3d at 972-73.

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7. Civil/criminal rules of procedure

In civil cases, Rule 45 authorizes a court to quash a subpoena if: (i) there is not adequate time to comply; (ii) it requires travel greater than 100 miles for trial or deposition; (iii) it seeks privileged or protected materials; or (iv) it subjects any person to undue burden. Fed. R. Civ. P. 45(c)(3). The party seeking to quash the motion bears the burden of proving any one of these factors. Wiwa v. Royal Dutch Petroleum Co., 392 F.3d 812, 818 (5th Cir. 2004); Williams v. City of Dallas, 178 F.R.D. 103, 109 (N.D. Tex. 1998).

Under the Federal Rules of Criminal Procedure, Rule 17 authorizes a court to quash a subpoena for documents in a criminal case "if compliance would be unreasonable or oppressive." Fed. R. Crim. P. 17(c); United States v. Skilling, 2006 WL 1006622, at *1 (S.D. Tex. 2006). Although the Fifth Circuit has not established a test for determining whether a subpoena is unreasonable or oppressive, "the law presumes, however, that, 'absent a strong showing to the contrary, . . . a grand jury acts within the legitimate scope of its authority.'" In re Grand Jury Proceedings, 115 F.3d 1240, 1244 (5th Cir. 1997) (alteration in original) (citation omitted). Rule 17 does not address whether a subpoena for testimony may be quashed. Because it would preclude a grand jury from fully investigating sources related to its inquiry, the Fifth Circuit has been reluctant to grant motions to quash subpoenas for testimony, except where the grand jury has not acted in good faith. See In re Grand Jury Subpoenas, 2001 WL 940433, 29 Media L. Rep. 2301 (5th Cir. Aug. 17, 2001) (per curiam) (unpublished); see also United States v. Doe, 541 F.2d 490, 493 (5th Cir. 1976). Unless the grand jury is an "unreasonable, harassing, or oppressive instrument," it is acting in good faith. Id.

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8. Other elements

No reported decision of the Fifth Circuit addresses any other elements that must be met before the qualified reporter's privilege can be overcome.

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C. Waiver or limits to testimony

1. Is the privilege waivable?

At least one Fifth Circuit case implies that in some circumstances the privilege may be waived by the source. In a civil action against a police officer, the district court had upheld a reporter's invocation of the privilege against disclosing tapes of a conversation with the officer. In dicta, the Fifth Circuit criticized the lower court's enforcement of the privilege, because the officer was evidently not a confidential source and because he had expressly waived the privilege. See Pressey v. Patterson, 898 F.2d 1018, 1022 n.4 (5th Cir. 1990). Thus, Pressey may indicate that, at least where the material in question relates directly to the source and is not merely the reporter's work product, the source is empowered to waive the privilege. But see Holland v. Centennial Homes, Inc., 1993 WL 755590, at *6 n.4, 22 Media L. Rep. 2270 (N.D. Tex. 1993) (noting that the Pressey footnote did not address whether the reporter had waived the privilege).

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2. Elements of waiver

a. Disclosure of confidential source's name

There is no reported decision of the Fifth Circuit addressing whether disclosure of a confidential source's name is sufficient to waive the privilege.

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b. Disclosure of non-confidential source's name

A reporter's disclosure of non-confidential sources for an article does not waive his privilege to protect the confidentiality of other sources. In Selcraig, the reporter had identified some of the sources quoted in his article, but refused to identify the confidential sources on the grounds of the reporter's privilege. In re Selcraig, 705 F.2d 789, 794 (5th Cir. 1983). The court held that the reporter had not waived his privilege as a result of having disclosed the identity of some, but not all, of the sources for the article.

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c. Partial disclosure of information

No reported decision of the Fifth Circuit specifically resolves whether a journalist's disclosure of some information from a source waives the privilege.

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d. Other elements

No reported decision of the Fifth Circuit addresses circumstances where courts have found that a journalist, through her own actions, has waived the reporter's privilege.

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3. Agreement to partially testify act as waiver?

In Selcraig, the Fifth Circuit considered a case in which a reporter partially testified. In re Selcraig, 705 F.2d 789 (5th Cir. 1983). The reporter had learned about a controversy involving the plaintiff from a confidential source. Id. at 792. The reporter interviewed the plaintiff's employers to confirm the information he had learned from his confidential source and thereafter published an article about the controversy involving the plaintiff. Id. In a subsequent civil lawsuit between the plaintiff and his employers, the reporter was subpoenaed to be deposed. Id. at 794. The reporter appeared at his deposition and freely admitted that he had interviewed the plaintiff's employers and had based his article in part on those interviews. Id. He refused, however, to identify the confidential source from whom he had learned about the controversy in the first place, claiming that the qualified reporter's privilege protected that information. Id. The Fifth Circuit agreed. As such, although Selcraig did not involve a reporter's partial disclosure of information obtained from the confidential source, it involved the reporter's disclosure of information obtained as a result of the information provided by that confidential source. The Fifth Circuit did not indicate that this kind of partial disclosure endangered the right of the reporter to invoke the privilege to protect the identity of the confidential source.

Similarly, in Brinston v. Dunn, a district court held that it was "proper to require . . . [a reporter] to answer questions regarding the truthfulness and accuracy of the contents of the article he authored, including whether statements attributed to the plaintiff in the article were in fact made by the plaintiff" without violating the privilege. 919 F. Supp. 240, 244 (S.D. Miss. 1996). Yet the district court upheld the assertion of privilege as to questions seeking to compel disclosure of the reporter's unpublished work product. Id. Thus, taken together the district court's rulings implicitly recognize that the partial testimony of the reporter about the accuracy of his article does not waive his right to assert the privilege against questions seeking information the reporter wishes to protect.

Providing information in response to grand jury subpoena as waiver. A district court has suggested that providing (potentially) privileged information in response to grand jury subpoenas does not necessarily operate as a waiver of the privilege. See United States v. Valencia, 2006 WL 3707867, at *10 (S.D. Tex. 2006) (“The Court is unpersuaded that the limited disclosures permitted here will undermine any genuine interest the Publishers might have in protecting their data and sources in other civil proceedings.”).

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VII. What constitutes compliance?

A reporter complies with a subpoena for testimony in a criminal trial by appearing and giving testimony at the appointed time. Fed. R. Crim. P. 17(a). A reporter complies with a subpoena for documents or other items in a criminal proceeding by producing the subpoenaed materials at the time and in the manner appointed in the subpoena. Fed. R. Crim. P. 17(c). A reporter complies with a subpoena for documents in a civil trial by producing the documents "as they are kept in the ordinary course of business" or in a way "to correspond to the categories in the demand." Fed. R. Civ. P. 45(e)(1)(A). If a subpoena commands only documents or other tangible things, and not testimony, it is not necessary to appear at the hearing or trial. Fed. R. Civ. P. 45(d)(2)(A).

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A. Newspaper articles

Under the Federal Rules of Evidence, newspapers and periodicals are self-authenticating and require no extrinsic evidence of authenticity. Fed. R. Evid. 902(6). However, sometimes a court may require a reporter or a custodian of records to bring and to authenticate the material. Sometimes this is simply a matter of negotiation between the parties.

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B. Broadcast materials

No reported decision of the Fifth Circuit addresses what is required when turning over tapes of material that was aired, or who must appear as a representative or custodian of the broadcaster. This is usually simply a matter of negotiation between the parties.

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C. Testimony vs. affidavits

No reported decision of the Fifth Circuit addresses whether an affidavit can take the place of in-court testimony, particularly when the testimony is intended merely to confirm that an article was true and accurate as published. Depending on the nature of the testimony and the purpose for which it is sought to be introduced, the Federal Rules of Evidence addressing authentication, hearsay, and exceptions to the hearsay rule will likely determine whether live testimony subject to cross-examination is required in a particular case. This will likely vary, too, from judge to judge.

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D. Non-compliance remedies

A court may hold an individual in civil or criminal contempt for refusing to comply with a subpoena. Contempt proceedings are treated as either civil or criminal, depending on their primary purpose. Lamar Financial Corp. v. Adams, 918 F.2d 564, 566 (5th Cir. 1990). Generally speaking, if the court seeks to coerce compliance with a court order or to compensate another party for the contemnor's violation, it will hold an individual in civil contempt. If a court seeks to punish a contemnor for not complying with a subpoena or to vindicate the authority of the court, it may hold an individual in criminal contempt. Id.  The type of remedy may depend on whether the contempt is criminal or civil; for example, “a lump sum fine that punishes past conduct is criminal, while a fine that accrues on an ongoing basis in response to noncompliance is civil.” In re Bradley, 588 F.3d 254, 263 (5th Cir. 2009).

If the court decides to hold an individual in criminal contempt, it is required to notify the contemnor explicitly that the proceedings against him are criminal. Id. at 567; Fed. R. Crim. P. 42(a)(1). As a constitutional matter, imprisonment and a fine generally cannot be combined as a sanction for criminal contempt. In re Bradley, 318 U.S. 50, 63 S. Ct. 470 (1943). A finding of civil contempt, however, "permits the coercive combination of both fine and imprisonment." In re Dinnan, 625 F.2d 1146, 1150 (5th Cir. Unit B Aug 1980); see also United States v. Scott, 2004 WL 1068118, at *3 (N.D. Tex. 2004).

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1. Civil contempt

Courts may hold a person in civil contempt to coerce compliance with a subpoena or to compensate another party for the contemnor's conduct. Lamar Financial Corp. v. Adams, 918 F.2d 564, 566 (5th Cir. 1990). A person may be held in contempt of court for failing to comply with a subpoena, if she does not supply an "adequate excuse." Fed. R. Civ. P. 45(e). Adequate excuse includes that the subpoena does not comply with the requirements of Rule 45 -- that is, the subpoena fails to provide enough time to comply, imposes undue burden, requires travel greater than 100 miles, seeks information that is privileged, or requires disclosure of a trade secret or other confidential research.

For example, in Selcraig, the lower court ordered that a reporter be imprisoned for civil contempt until he testified according to the subpoena. In re Selcraig, 705 F.2d 789, 795 (5th Cir. 1983). Similarly, the Fifth Circuit declined to reverse the district court's civil contempt order, which had remanded freelance writer Vanessa Leggett to custody following her refusal to produce all originals and copies of her notes and tapes of interviews regarding a celebrated Houston murder. In re Grand Jury Subpoenas, 29 Media L. Rep. 2301 (5th Cir. Aug. 17, 2002) (per curiam) (unpublished). Thus, Ms. Leggett remained incarcerated until January 4, 2002, when the term of the grand jury expired, or 168 days all told -- the longest period of incarceration of a contemnor-journalist in the history of the United States at that time.

Civil contempt does not have to be used to coerce compliance, however. The Fifth Circuit has distinguished coercive contempt from “remedial contempt,” which is intended to remedy “the consequences of defiant conduct on an opposing party, rather than punishing the defiance per se.” Bradley, 588 F.3d at 263-64. In In re Bradley, the bankruptcy court had held the former trustee in contempt, but found him liable to the bankruptcy estate instead of the court.  Id. at 264. The Fifth Circuit affirmed, finding “no reason why the civil contempt power . . . should not reach” conduct toward an opposing party. Id. at 265.

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a. Fines

No case law indicates that the Fifth Circuit places a cap on fines assessed for civil contempt. Rather, fines levied in a civil contempt proceeding must be calculated for either of two purposes: (i) to compensate the complainant, in which case the amount must be limited to the complainant's actual damages; or (ii) "to compel the contemnor to comply with the court's order, in which case the amount must be reasonably designed to force compliance, without being punitive." Dinnan, 625 F.2d at 1149; see also United States v. Cornerstone Wealth Corp., Inc., 2006 WL 522124, at *9 (N.D. Tex. 2006). It is not unusual for the court to impose a $500/day fine on a witness until he complies with a subpoena. San Antonio Tel. Co. v. AT&T, 529 F.2d 694, 695 (5th Cir. 1976). In Petroleos Mexicanos v. Crawford Enterprises, the court held that it was reasonable and necessary for the lower court to assess fines of over $79,000 against a party that refused to comply with a subpoena. 826 F.2d 392, 408 (5th Cir. 1987). The fines were meant to cover the subpoenaing party's costs of having to prosecute the contempt proceeding. Id.

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b. Jail

Recipients of a subpoena may be jailed for refusal to comply with the subpoena. See, e.g., United States v. Robinson, 2007 WL 649010, at *4 (W.D. Tex. 2007) ("A district court may enter a civil contempt order of imprisonment in order to coerce the contemnor into future performance of an affirmative act."). Federal law authorizes judges to imprison non-compliant witnesses until the term of the court proceeding or the grand jury expires, but no longer than 18 months. 28 U.S.C. § 1826(a). A judge's decision to jail for contempt is reviewed under the abuse of discretion standard. In re Grand Jury Subpoenas, 29 Media L. Rep. 2301 (5th Cir. Aug. 17, 2001) (per curiam) (unpublished). Courts have jailed individuals for not producing materials subject to a subpoena until the subpoena is complied with. Id. In In re Grand Jury Subpoenas, the Fifth Circuit held that it was not an abuse of discretion to jail a reporter until she furnished all originals or copies of any tape recordings or transcripts of interviews, because reporters are not entitled to a reporter's privilege when subpoenaed before a grand jury. Id.

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2. Criminal contempt

A court may seek to punish an individual for failing to comply with a subpoena by holding the individual in criminal contempt. Importantly, if the reporter's privilege applies to the underlying subpoena, it is not constitutional to hold a reporter in criminal contempt while the state determines whether the information it seeks may be obtained from other sources. Lenhart v. Thomas, 944 F. Supp. 525, 531 (S.D. Tex. 1996). In Lenhart, the court reversed the state court's order that a reporter be incarcerated until she was willing to testify because the subpoenaing party did not exhaust alternative means of obtaining the information. Id.

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3. Other remedies

No reported decision of the Fifth Circuit addresses whether additional remedies are applicable against the media, such as default judgment or imposition of presumptions of actual malice or the absence of an actual source.

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VIII. Appealing

A. Timing

1. Interlocutory appeals

An order denying a motion to quash is not a final decision under 28 U.S.C. § 1291 for purposes of appeal. In re Grand Jury Subpoena for Attorney Representing Criminal Defendant Reyes-Requena, 926 F.2d 1423, 1429 (5th Cir. 1991). Rather, the Fifth Circuit will "require the party to resist the subpoena and appeal from the order citing the party for contempt." Id.; Natural Gas Pipeline Co. of Am. v. Energy Gathering, Inc., 2 F.3d 1397, 1405 n.16 (5th Cir. 1993).

Even if a party obtains a ruling either granting or denying a motion for contempt, however, that order will not necessarily be considered final under 28 U.S.C. § 1291 and subject to direct appeal. See Lamar Financial Corp. v. Adams, 918 F.2d 564, 566 (5th Cir. 1990). Rather, an order either denying or granting a motion for contempt will be considered final only if it is not part of "continuing litigation." In re Grand Jury Subpoena for Attorney Representing Criminal Defendant Reyes-Requena, 926 F.2d at 1429. A contempt order is not part of continuing litigation if, for example, it is directed at a non-party, or if the motion for contempt is denied after the entry of the judgment which was the subject of the contempt. Sanders v. Monsanto, 574 F.2d 198, 199 (5th Cir. 1978). Such a denial is final and reviewable under Section 1291 because "no further district court action is necessary to give life to the denial." Id.; see also In re Grand Jury Subpoena for Attorney Representing Criminal Defendant Reyes-Requena, 926 F.2d at 1429 (indicating that an order is final when "no underlying case awaits final resolution").

Another line of cases puts the question of a contempt order's finality slightly differently: an order of civil or criminal contempt "is not 'final' for purposes of appeal unless two actions occur: (1) a finding of contempt is issued, and (2) an appropriate sanction is imposed." United States Abatement Corp. v. Mobile Exploration & Producing U.S., Inc., 39 F.3d 563, 567 (5th Cir. 1994) (civil contempt); Petroleos Mexicanos v. Crawford Enters., Inc., 826 F.2d 392, 398-99 (5th Cir. 1987) (civil and criminal contempt).

If the Fifth Circuit determines that an order granting or denying a contempt motion is not final, then the court will have jurisdiction to consider an appeal only if: (i) the district court certifies the order for interlocutory appeal under 28 U.S.C. § 1292(b) or (ii) another statute grants appellate jurisdiction, such as 28 U.S.C. § 1826(b) or 18 U.S.C. § 3731.

Section 1292(b) permits the court of appeals, in its discretion, to accept an appeal if the district court certifies that an interlocutory order "involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation" and the appellant applies to the court of appeals for interlocutory review within 10 days after entry of the challenged order. 28 U.S.C. § 1292(b).

Pursuant to 28 U.S.C. § 1826, a recalcitrant witness may be summarily confined until such time as the contemnor is willing to submit to an order of the court to testify or provide other information. The statute affords a witness so confined a right of expedited appeal, In re Dinnan, 652 F.2d 1146, 1150 (5th Cir. Unit B Aug. 1980), which "shall be disposed of as soon as practicable, but not later than 30 days from the filing of such appeal." 28 U.S.C. § 1826(b). Thus, the court of appeals has jurisdiction to review such an order.

Under 18 U.S.C. § 3731, the government is entitled to appeal from a district court order suppressing or excluding evidence in a criminal case. For instance, in United States v. Smith, the Fifth Circuit heard a direct appeal by the government from the district court's grant of a journalist's motion to quash a grand jury subpoena based on the journalist's successful assertion of the qualified reporter's privilege. 135 F.3d 963 (5th Cir. 1998).

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2. Expedited appeals

A civil contempt order confining a recalcitrant witness that is issued in accordance with 28 U.S.C. § 1826(a) is entitled to expedited review pursuant to 28 U.S.C. § 1657. An appellate court must resolve such an appeal not more than 30 days from the filing of the appeal. Id. § 1826(b). The 30 day provision is not considered jurisdictional, however, and the Fifth Circuit regularly extends the date for resolving the appeal as needed to allow the appeal to be handled in an efficient, expedited fashion. See, e.g., In re Grand Jury Subpoenas, 29 Media L. Rep. 2301, 2303 (5th Cir. Aug. 17, 2001) (per curiam) (unpublished) (affording expedited treatment to Vanessa Leggett’s appeal of an order holding her in civil contempt and confining her pursuant to Section 1826 for refusing to submit to a grand jury subpoena); see also In re Grand Jury Proceedings, 605 F.2d 750, 752 n.1 (5th Cir. 1979) (noting that court may extend the date for resolving the appeal). Further, if the contemnor is released from confinement, the 30 day period does not apply. Natural Gas Pipeline Co. of Am. v. Energy Gathering, Inc., 2 F.3d 1397, 1405 n.17 (5th Cir. 1993). Finally, failure to adhere to the 30-day period does not entitle an incarcerated contemnor to be released from custody. In re Dinnan, 625 F.2d 1146, 1150 (5th Cir. Unit B Aug. 28, 1980).

As a general matter, motions for expedited appeal in civil and criminal cases made to the Fifth Circuit require a showing of "good cause." 5th Cir. R. 27.5. Only the court (as opposed to the clerk of the court) may grant such a motion. Id. A single judge of the circuit is authorized to rule on a motion to expedite the appeal. Id. 27.2.8. If the motion is granted, the clerk will fix an appropriate briefing schedule unless a judge of the circuit sets a date certain for its resolution. Id. 27.5.

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B. Procedure

1. To whom is the appeal made?

In the federal system, assuming the jurisdictional prerequisites for taking an appeal are met (that is, the order or judgment is final or another statutory grant of appellate jurisdiction exists), an appeal from an order or judgment of a district court in Texas, Louisiana, or Mississippi is made directly to the Fifth Circuit. A dispositive order of a federal magistrate judge is first challenged before the assigned district court, which will review the order de novo. Fed. R. Civ. P. 72(b). If a matter was tried before a magistrate judge with consent of the parties, appeal of a judgment is directly to the court of appeals. Fed. R. Civ. P. 73(c); 28 U.S.C. § 636(c)(3).

Also, depending on the circumstances of the case, a reporter may be entitled to seek a writ of mandamus or habeas corpus from a court of superior jurisdiction. See, e.g., Lenhart v. Thomas, 944 F. Supp. 525 (S.D. Tex. 1996) (granting writ of habeas corpus following state court's order holding reporter in criminal contempt); Cinel v. Connick, 792 F. Supp. 492 (E.D. La. 1992) (recognizing All-Writs Act and "in aid of" exception to Anti-Injunction Act entitled court to stay state criminal court's order requiring media to surrender information related to both federal civil and state criminal court cases); Campbell v. Klevenhagen, 760 F. Supp. 1206 (S.D. Tex. 1991) (granting writ of habeas corpus following state criminal court's order holding two reporters in contempt); Karem v. Priest, 744 F. Supp. 136 (W.D. Tex. 1990) (hearing writ of habeas corpus petition from state criminal court's order holding reporter in civil contempt, but denying writ). A party seeking the protection of the qualified privilege should therefore consider whether the posture and circumstances of the case merit taking such action.

In cases brought on writ of habeas corpus from one of the state court systems within the Fifth Circuit, the petitioner must generally first exhaust any rights of appeal or mandamus at the state court level. 28 U.S.C. § 2254(b)(1)(A). Following exhaustion of state remedies, the writ may be brought in federal court. Id. § 2254(a). Appeal may be taken from a federal district court to the court of appeals for the circuit in which the proceeding is held according to the guidelines established in 28 U.S.C. § 2253.

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2. Stays pending appeal

Ordinarily, if a party wishes to obtain a stay of a judgment or order of a district court pending appeal, the party must first make the motion in the district court that issued the challenged judgment or order. Fed. R. App. P. 8(a)(1)(A). However, if the district court denies the motion, or if making it first in the district court would be impracticable, the party may move the court of appeals for a stay pending appeal. Id. 8(a)(2). Such a motion should be made to the clerk of the court of appeals, who will present it to a panel for decision, unless exigent circumstances make that procedure impracticable, in which case the motion may be presented to a single judge of the circuit. Id. 8(a)(2)(D).

The Fifth Circuit has not adopted any special rule or practice with regard to stays pending appeal for journalists seeking to appeal district court contempt orders or rulings on motions to quash. However, the right of release from confinement on bail is addressed in 28 U.S.C. § 1826. That statute provides that bail will not be available if "it appears that the appeal is frivolous or taken for delay." 28 U.S.C. § 1826(b). The Fifth Circuit has indicated that the standard for a district court deciding a request for bail in a civil contempt proceeding involves the same attempt to evaluate the likelihood of the district court's own error as in other civil proceedings in which the court is asked to stay its orders or judgments pending appellate review. Beverly v. United States, 468 F.2d 732 (5th Cir. 1972). For instance, a district court in the Fifth Circuit refused to admit contemnor on bail pending appeal in a case where reversal was unlikely, appeal was a valuable tool for delay, the subject investigation involved terrorist activity, and the contemnors were British subjects who might leave the country, or be intimidated into disappearing or providing false testimony. In re Morahan, 359 F. Supp. 858 (N.D. Tex.), aff'd, 465 F.2d 806 (5th Cir. 1972).

Like any party held as a contemnor, however, a journalist adjudged in contempt of court is free to seek from the district court a stay of a contempt order pending an appeal of the decision. In re Selcraig, 705 F.2d 789, 795 (5th Cir. 1983). In Selcraig, the trial court ordered the imprisonment of a reporter for refusing to identify confidential sources. Id. The order for imprisonment was stayed pending the reporter's appeal of the trial judge's contempt determination. Id.

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3. Nature of appeal

The writ of habeas corpus is the appropriate federal remedy for a state prisoner, including an imprisoned state contemnor, challenging the fact of confinement. Preiser v. Rodriguez, 411 U.S. 475, 484, 93 S. Ct. 1827, 1833 (1973). When a party appeals from a final federal order or judgment, the appeal is one of right pursuant to 28 U.S.C. § 1291. If the challenged order or judgment is not final, the Fifth Circuit may consider an appeal under § 1292(b) or pursuant to a statute granting the right of immediate appeal (for example, 28 U.S.C. § 1826 or 3137).

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4. Standard of review

The Fifth Circuit will review a district court's order finding a recalcitrant witness in contempt under 28 U.S.C § 1826 as well as its decision on a motion to quash for abuse of discretion. In re Grand Jury Subpoena for Attorney Representing Criminal Defendant Reyes-Reguena, 926 F.2d 1423, 1431 n.6 (5th Cir. 1991) (section 1826 contempt order); In re Grand Jury Proceedings, 115 F.3d 1240, 1243 (5th Cir. 1997) (order denying motion to quash).

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5. Addressing mootness questions

The Fifth Circuit is obligated to address issues of jurisdiction, including mootness, prior to addressing the merits of an appeal. Sierra Club v. Glickman, 156 F.3d 606, 613 (5th Cir. 1998).

The Fifth Circuit has held that a contemnor's release from incarceration does not moot his appeal, because that release did not vitiate the district court's contempt order. United States v. Brumfield, 188 F.3d 303, 305 (5th Cir. 1999). The contempt order continued to limit the contemnor's activities: it restricted his movements and required him to surrender his passport. Id.

In a case in which an attorney and, as an intervenor, his client asserted that the attorney-client privilege precluded the attorney's testimony in response to a grand jury subpoena, the Fifth Circuit ruled the appeal was moot where the district court had denied the attorney and his intervenor-client's motions to quash, but later refused to hold the attorney in contempt, despite the district court's prior orders on the motions to quash. In re Grand Jury Subpoena for Attorney Representing Criminal Defendant Reyes-Requena, 926 F.2d 1423 (5th Cir. 1991). The government, the attorney, and the intervenor-client all appealed from the court's orders denying the motions to quash and for contempt. The Fifth Circuit held that it possessed appellate jurisdiction over all three appeals because the denial of the motion for contempt constituted a final, appealable order. Id. at 1429-30. However, the attorney and intervenor-client's appeals were moot, because the contempt order granted them the relief they sought: that is, the denial of the contempt motion "had the same effect as granting [the attorney and intervenor-client's] motions to quash." Id. at 1430. Essentially, the attorney and intervenor-client sought to obtain a ruling that the relief they obtained in the contempt hearing should have been provided at an earlier date -- during the hearings on their motions to quash. The Fifth Circuit held that such an appeal would call for the court to issue "an advisory opinion, after the conflict has been resolved in their favor, stating that a district court must provide such a hearing prior to an attorney being required to appear before a grand jury." Id. Thus, the favorable ruling on the contempt motion mooted their appeal, because it prevented the court of appeals from providing the attorney or the intervenor-client with any further relief. Id.

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6. Relief

Depending on the particular circumstances of the case, the Fifth Circuit can dissolve a contempt order, can remand with instructions to consider further evidence or issues, or can remand with instructions on the treatment of any testimony or materials that a journalist may be compelled to produce. For example, in Miller, after deciding that the reporter enjoyed a qualified privilege, but that the privilege was overcome under the facts of the case, the Fifth Circuit remanded to the district court with instructions that the information the reporter would provide must be limited strictly for use in the pending litigation and be disclosed only to the counsel involved in the case. Miller v. Transamerican Press, Inc., 621 F.2d 721, 727, as modified, 628 F.2d 932 (5th Cir. 1980). Similarly, the Fifth Circuit in Selcraig dissolved the contempt order, held that the reporter enjoyed a qualified privilege, and remanded with specific instructions that the reporter's privilege could only be overcome if the district court first determined that the plaintiff had established a prima facie case for liability. In re Selcraig, 705 F.2d 789, 799-800 (5th Cir. 1983).

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IX. Other issues

A. Newsroom searches

No reported decision of the Fifth Circuit has addressed the application of the Privacy Protection Act (42 U.S.C. § 2000aa) (“PPA”) to searches of newsrooms or seizures of cameras or film. However, one district court found a PPA claim viable when a police officer seized and destroyed a cell phone recording the plaintiff had created of the officer during a traffic incident, because the officer believed the plaintiff would disseminate or broadcast the recording. Basler v. Barron, No. H-15-2254, 2017 WL 477573, at *12 (S.D. Tex. Feb. 6, 2017).  The court held that the plaintiff was protected by the PPA even though he was not a professional journalist, noting that the statute broadly defines work product and “disregards who possesses the material and merely defines the material as being produced in ‘anticipation’ of public communication.” Id.

Moreover, two district courts have addressed the PPA in other contexts. One court found that a school instructor employed by the Department of Defense did not state a claim under the PPA where he alleged that the government had obtained his bank records, which were not allegedly intended to be disseminated publicly. Nwangoro v. Department of the Army, 952 F. Supp. 394, 398 (N.D. Tex. 1996). Another district court found that the Secret Service violated the plaintiff's rights under the PPAand awarded damages for the plaintiff's expenses and lost profits caused by the violation. Steve Jackson Games, Inc. v. United States Secret Service, 816 F. Supp. 432 (W.D. Tex. 1993). An agent of the Secret Service had seized, pursuant to a search warrant, files from the plaintiff's computer bulletin board system, including a book the plaintiff intended to publish. The court found that the Secret Service did not initially "reasonably believe" the materials they seized violated the PPA. Id. at 440-41 & 440 n.8. However, once the plaintiff had explained to the Secret Service the nature of the seized materials and the PPA's requirements and had requested their return, the Secret Service reasonably believed the plaintiff had a purpose to communicate the material to the public. Id. at 440-41. Although the Fifth Circuit affirmed the judgment of the district court, the parties did not raise any issue regarding the district court's treatment of the PPA on appeal of the judgment. Steve Jackson Games, Inc. v. United States Secret Service, 36 F.3d 457 (5th Cir. 1994).

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B. Separation orders

No reported decision of the Fifth Circuit has addressed the scope of separation orders issued against reporters who are both trying to cover the trial and are on a witness list.

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C. Third-party subpoenas

No reported decision of the Fifth Circuit has addressed media efforts to quash subpoenas issued to third parties in an effort to discover a reporter's source.

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D. The source's rights and interests

No reported decision of the Fifth Circuit has addressed efforts of sources to intervene anonymously to halt disclosure of their identities. In a case involving the attorney-client analog to the qualified reporter's privilege, however, the Fifth Circuit permitted the client of an attorney to intervene anonymously to protect his identity when the client's identity was inextricably intertwined with the subject of the allegedly privileged communication. In re Grand Jury Subpoena for Attorney Representing Criminal Defendant Reyes-Requena, 926 F.2d 1423 (5th Cir. 1991).

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