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8th Circuit

Reporter's Privilege Compendium

Updated by RCFP staff from an earlier edition by Shari Jerde and I. Jenny Winkler at Dorsey & Whitney LLP.

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I. Introduction: History & Background

The reporter's privilege has not been definitively established by the Eighth Circuit Court of Appeals. District courts within the Eighth Circuit are split. District courts in Minnesota and Missouri have adopted a qualified privilege in the civil context. However, the court in the Eastern District of Arkansas found no reporter's privilege existed in either the criminal or the grand jury context. The Eighth Circuit's decision in Cervantes has been recognized by treatises and cases as establishing a qualified privilege. See Cervantes v. Time, Inc., 464 F.3d 986 (8th Cir. 1972). However, in a subsequent case arising from the Starr investigation in Arkansas, the Eighth Circuit Court of Appeals stated that the question of whether a reporter's privilege exists "is an open one in this circuit." In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910, 918 n.8 (8th Cir. 1997).

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II. Authority for and source of the right

The Cervantes case was decided shortly after the Supreme Court's decision in Branzburg v. Hayes, 407 U.S. 665 (1972). Cervantes interpreted Branzburg to rule out the privilege in the grand jury context, but leave it an open question in other contexts. Cervantes treated the Branzburg decision as an anti-privilege case. However, the more common modern interpretation is to read Powell's concurrence in Branzburg (which provided the crucial fifth vote and approved of a reporter's privilege in other contexts) to establish a qualified reporter's privilege. Cervantes fails to mention the concurring opinion or any pro-privilege interpretation of Branzburg, except to quote some pro-privilege language from the opinion.

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A. Shield law statute

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B. State constitutional provision

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C. Federal constitutional provision

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D. Other sources

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III. Scope of protection

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A. Generally

The Eighth Circuit has not explicitly recognized a reporter's privilege. Several district courts within the Eighth Circuit have examined the issue. Where applicable, these district court decisions are discussed and/or quoted below for their persuasive authority. They are controlling law only in the jurisdiction in which they were decided, however.

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B. Absolute or qualified privilege

The District of Minnesota adopted a qualified privilege in J.J.C. v. Fridell, 165 F.R.D. 513 (D.Minn., 1995). The court applied a balancing test, as follows:

the reporter's privilege is defeated only where the information sought is: 1) critical to the maintenance or the heart of the claim; 2) highly material and relevant; and 3) is unobtainable from other sources.

The Eastern District of Missouri and the Easter District of Arkansas have similarly adopted a qualified privilege, applying the same balancing test as the court in Fridell. See Continental Cablevision, Inc. v. Storer Broad. Co., 583 F. Supp. 427 (E.D. Miss. 1984); Richardson v. Sugg, 220 F.R.D. 343 (E.D. Ark. 2004).

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C. Type of case

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1. Civil

The Eighth Circuit has not ruled on this issue, but lower courts in Fridell, Continental Cablevision and Richardson have recognized a qualified privilege in the civil context.

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2. Criminal

No district court cases within the Eighth Circuit have recognized the privilege in this type of case and one has explicitly rejected it. See United States v. Hivley, 202 F. Supp. 2d 887 (E.D. Ark. 2002).

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3. Grand jury

The Eastern District of Arkansas in In re Grand Jury Subpoena ABC, Inc., 947 F. Supp. 1314 (1996), held that there is no reporter's privilege in the grand jury context, at least absent bad faith or an abuse of grand jury function. The court found the Supreme Court's decision in Branzburg controlling on the question, interpreting Justice Powell's concurring opinion narrowly.

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D. Information and/or identity of source

While the Eighth Circuit has not ruled on this issue, the lower court in Fridell noted that "most federal courts have assumed the privilege protects a reporter's underlying work product as well as an informant's identity." J.J.C. v. Fridell, 165 F.R.D. 513, 516 (D. Minn. 1995).

The Continental Cablevision court held that "reporters enjoy a qualified privilege . . . to withhold from discovery in a civil case confidential or non-confidential sources, materials, or other information where such discovery would impinge on the ability of the media to gather and disseminate news." Cablevision, Inc. v. Storer Broad. Co., 583 F. Supp. 427, 435 (E.D. Miss. 1984).

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E. Confidential and/or nonconfidential information

The Eighth Circuit has not ruled on this issue, but two lower courts have.

In Continental Cablevision the district court held that "the [F]irst [A]mendment qualified reporter's privilege is not limited to discovery which seeks the revelation of confidential sources. The [F]irst [A]mendment interest in preserving the vitality of the press is implicated any time civil litigants seek discovery or testimony from the media, regardless of whether confidential or non-confidential sources or material are sought." Nonetheless, "a lesser showing of need and materiality may be required in the situation where discovery of non-confidential material is sought than where the identity of confidential sources is sought." Cablevision, Inc. v. Storer Broad. Co., 583 F. Supp. 427, 434 (E.D. Miss. 1984).

On the other hand, the district court in Hively found that "in the absence of any showing that this information is sought in bad faith or for purposes of harassment, this Court declines to recognize any constitutional privilege concerning the nonconfidential testimony sought by the defense." United States v. Hively, 202 F. Supp. 2d 886, 892 (E.D. Ark. 2002). However, Hively was a criminal case.

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F. Published and/or non-published material

The district court in Continental Cablevision held that material characterized as "unpublished information" is privileged, though a lesser showing of need and materiality may be required to overcome the privilege. (See Section 3.E. above—the court arguably treated "unpublished" and "non-confidential" as synonymous).

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G. Reporter's personal observations

There is no Eighth Circuit law specifically addressing this issue.

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H. Media as a party

Continental Cablevision: "It is easier for a party seeking to overcome the privilege to do so . . . in a libel case where there is a media defendant . . . than in a civil case where the reporter is a non-party." Cablevision, Inc. v. Storer Broad. Co., 583 F. Supp. 427, 433 (E.D. Miss. 1984).

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I. Defamation actions

The Eighth Circuit's decision in Cervantes involved a defamation action. The Cervantes court held that it was proper to grant summary judgment for the defendant in a defamation case even though the court had not resolved the plaintiff's motion to compel testimony from a reporter claiming privilege. The court said that lower courts should not be forced to breach reporter confidentiality before passing on the merits of the case in the context of summary judgment.

A later decision from the Western District of Arkansas, however, states that: "the newsman's privilege, . . whether based upon common law or the First Amendment, must give way, even as to confidential sources, in a libel case where such is necessary to establish actual malice or reckless disregard of the truth on a given Defendant's part." Williams v. ABC Inc., 96 F.R.D. 658, 665 (W.D. Ark. 1983).

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IV. Who is covered

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A. Statutory and case law definitions

No Eighth circuit case law addresses these details.

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1. Traditional news gatherers

No Eighth circuit case law addresses this issue.

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a. Reporter

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b. Editor

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c. News

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d. Photo journalist

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e. News organization/medium

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2. Others, including non-traditional news gatherers

No Eighth circuit case law addresses this issue.

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B. Whose privilege is it?

No Eighth circuit case law addresses this issue.

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V. Procedures for issuing and contesting subpoenas

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A. What subpoena server must do

No Eighth circuit opinion addresses procedures required for issuing and contesting subpoenas in a manner specific to the reporter's privilege. Litigants should follow the Federal Rules of Civil Procedure or the local rules of the relevant district court concerning these issues. Rule 45 of the Federal Rules addresses subpoenas. Many district courts within the Eighth Circuit follow this rule without modification or supplementation.

If a subpoena of the news media is being sought by a federal prosecutor, special rules apply. Most importantly, the subpoena must be specifically approved by the attorney general. See 28 C.F.R. 50.10 for the full text of the regulation.

Some district courts within the Eighth Circuit that have addressed the reporter's privilege discuss special procedures for issuing and contesting subpoenas in this context. Relevant portions are discussed below.

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1. Service of subpoena, time

No Eighth circuit case law addresses this issue in the context of the reporter's privilege.

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2. Deposit of security

No Eighth circuit case law addresses this issue in the context of the reporter's privilege.

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3. Filing of affidavit

No Eighth circuit case law addresses this issue in the context of the reporter's privilege.

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4. Judicial approval

No Eighth circuit case law addresses this issue in the context of the reporter's privilege.

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5. Service of police or other administrative subpoenas

No Eighth circuit case law addresses this issue in the context of the reporter's privilege.

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B. How to Quash

The local district court rules address the filing of motions. The links to the local rules are below:

Eastern District of Arkansas: See Local Rule 7.2 at http://www.are.uscourts.gov/rules/r7-2.html

Western District of Arkansas: See Local Rule 7.2 at http://www.are.uscourts.gov/rules/r7-2.html

Northern District of Iowa: See Local Rule 7.1 at http://www.iand.uscourts.gov/iand/Documents.nsf/2ed3c15f7aaed4ac8625669f006ebe9f/8d9eca58d19138c6862569c1007169f6?OpenDocument

Southern District of Iowa: See Local Rule 7.1 at http://www.iasd.uscourts.gov/iasd/CourtInfo.nsf/7f77af8ebdbeff2288256448005e75b0/77ae57ed006dfd03862569f3007bda2f/$FILE/LocalRules2001 (2-15-01).PDF

District of Minnesota: See Local Rule 7.1 at http://www.mnd.uscourts.gov/localrules.htm#civil_motion_practice

Eastern District of Missouri: See Local Rule 4.1 at http://www.moed.uscourts.gov/moed/Documents.nsf/3a55ca523f1ad3ef882563fb0080c38f/1d4ad85f6dd6c00f862566170056c62d?OpenDocument (follow the link to download the .pdf file containing the local rules)

Western District of Missouri: See Local Rule 7.1 at http://www.mow.uscourts.gov/General_Information/newrules/lr_7_1_.pdf

District of Nebraska: See Local Rule 7.1 at http://www.ned.uscourts.gov/local/forms/nlr01.pdf

District of North Dakota: See Local Rule 7.1 at http://www.ndd.uscourts.gov/Rules.htm#RULE 7.1

District of South Dakota: See Local Rule 7.2 at http://www.sdd.uscourts.gov/docs/rules01.pdf

To the extent that district courts in the Eighth Circuit have said addressed these issues as they relate to the reporter's privilege, they are discussed below.

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1. Contact other party first

No Eighth circuit case law addresses this issue in the context of the reporter's privilege.

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2. Filing an objection or a notice of intent

No Eighth circuit appellate case law addresses this issue in the context of the reporter's privilege.

The district court in Continental Cablevision held that "a reporter must, in addition to claiming the privilege in response to specific requests or questions, provide a court with particularized allegations or facts that support his/her claim of privilege." Continental Cablevision, Inc. v. Storer Broad. Co., 583 F. Supp. 427, 436 (E.D. Miss. 1984). "Only if a reporter provides such information can a court determine whether the reporter is properly invoking the privilege and whether the balance should be struck in favor on non-disclosure."  Id.

The district court in Hively held, "Movants must provide the court with particularized allegations or facts to support a privilege claim." United States v. Hively, 202 F. Supp. 2d 886, 889 (E.D. Ark. 2002). (The Hively court did not look favorably on the reporter's refusal to show up in court to claim the privilege.)

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3. File a motion to quash

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a. Which court?

No Eighth circuit case law addresses this issue in the context of the reporter's privilege.

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b. Motion to compel

No Eighth circuit case law addresses this issue in the context of the reporter's privilege.

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c. Timing

In Continental Cablevision, the district court held, "If [deposers] seek an order to compel [reporter invoking privilege] to respond, despite her claim of privilege, the party seeking said order shall so move within fifteen (15) days after the conclusion of said deposition. . . . [Reporter invoking privilege] shall have seven (7) days from the filing of said party's motion to compel to file a memorandum in opposition." Continental Cablevision, Inc. v. Storer Broad. Co., 583 F. Supp. 427, 438 (E.D. Miss. 1984).

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d. Language

The district court in Continental Cablevision held, "If Movant does claim the privilege . . . Movant shall state with particularity the manner in which the answer to the question is alleged to be privileged and the factual basis, to the extent possible without revealing the allegedly privileged information, for the claim of privilege." Continental Cablevision, Inc. v. Storer Broad. Co., 583 F. Supp. 427, 438 (E.D. Miss. 1984).

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e. Additional material

No Eighth circuit case law addresses this issue in the context of the reporter's privilege.

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4. In camera review

In Continental Cablevision, the district court held that "if the court cannot strike the balance on the basis of the showing made by the reporter and the party seeking discovery, a court may conduct in camera review of the information sought to the extent necessary." Continental Cablevision, Inc. v. Storer Broad. Co., 583 F. Supp. 427, 436 (E.D. Miss. 1984).

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a. Necessity

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c. Consequences of refusing

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5. Briefing schedule

No Eighth circuit case law addresses this issue in the context of the reporter's privilege.

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6. Amicus briefs

No Eighth circuit case law addresses this issue in the context of the reporter's privilege.

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VI. Substantive law on contesting subpoenas

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A. Burden, standard of proof

In Continental Cablevision, the district court held that "it is only after a reporter makes a minimal prima facie showing that responding to discovery or testimonial requests will impinge on first amendment interests that the burden shifts to the party seeking discovery to demonstrate the efforts made to obtain the information elsewhere and the extent to which the information is relevant." Continental Cablevision, Inc. v. Storer Broad. Co., 583 F. Supp. 427, 436 (E.D. Miss. 1984).

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B. Elements

The Eighth Circuit has not ruled on the test, but the district courts in Fridell, Continental Cablevision and Richardson adopted versions of the common three-part balancing test:

the reporter's privilege is defeated only where the information sought is: 1) critical to the maintenance or the heart of the claim; 2) highly material and relevant; and 3) is unobtainable from other sources.

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1. Relevance of material to case at bar

Under the Fridell balancing test set forth above, the material sought must be "critical," "highly material and relevant." J.J.C. v. Fridell, 165 F.R.D. 513, 516 (D. Minn. 1995). The Continental Cablevision formulation of the test (adopted from a 1980 Third Circuit case) requires "that the information sought is crucial to the claim." Cablevision, Inc. v. Storer Broad. Co., 583 F. Supp. 427, 433 (E.D. Miss. 1984).

In Fridell, the court held that the Plaintiff who was seeking to discover a reporter's notes had not "clearly and specifically demonstrated the materiality of the reporter's notes" to her case. 165 F.R.D. at 516. It also held that the notes, which Plaintiff asserted were relevant her claim of retaliatory discharge, were not critical to that claim because it was "but one of several other derivative issues predicated on the sexual harassment claim." Id. The court construed the sexual harassment claim as the "heart" of the case. Id.

The court in Grand Jury Subpoena ABC found that unaired material from a television interview would be discoverable because of the "reasonable possibility" that it may contain relevant statements. In re Grand Jury Subpoena American Broadcasting Companies, Inc., 947 F.Supp. 1314, 1321 (E.D. Ark. 1996) The court explicitly limited this inquiry to the context of a grand jury investigation, where "'some exploration or fishing necessarily is inherent and entitled to exist.'" Id. at 1320–21.

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2. Material unavailable from other sources

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a. How exhaustive must search be?

The Fridell court found that when the Plaintiff "merely submits that interviews and depositions, such as the depositions of the two reporters [involved], failed to reveal the source for the articles," the Plaintiff failed to "demonstrate an exhaustion of all reasonable alternative means for obtaining the information." J.J.C. v. Fridell, 165 F.R.D. 513, 516 (D. Minn. 1995).

After rejecting the existence of a reporter's privilege in the grand jury context, the district court in Grand Jury Subpoena ABC analyzed the case under the three-prong test for the sake of argument.  In re Grand Jury Subpoena American Broadcasting Companies, Inc., 947 F.Supp. 1314, 1319–21 (E.D. Ark. 1996). In that case, Independent Counsel Ken Starr was seeking to discover unaired portions of a television interview with Susan McDougal. Id. at 1316–17. Under the test, the court would have found that the tape was discoverable, in part because "there is no other source for the information that is contained on the videotape and transcript" of that interview. Id. at 1321. While the court acknowledged that "other media interviews [with McDougal] . . . are available, . . . . [s]uch interviews do not . . . shed any light on the specific information that may be contained on the non-broadcast videotape and transcript" of the interview sought. Id; see also Doe v. Young, 664 F.3d 727 (8th Cir. 2011) (noting district court ordered testimony by reporter after second subpoena, which followed additional discovery to exhaust alternative sources).

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

The district court in Fridell held that more than a "plain assertion" is required. J.J.C. v. Friell, 165 F.R.D. 513, 516 (D. Minn. 1995).

But the district court in Grand Jury Subpoena ABC held that the mere assertion of a "reasonable possibility" that unaired portions of a television interview may contain relevant evidence, and that this videotape and transcript were the only evidence of that interview, would have been enough to overcome the (hypothetical) privilege. In re Grand Jury Subpoena American Broadcasting Companies, Inc., 947 F.Supp. 1314, 1321 (E.D. Ark. 1996).

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c. Source is an eyewitness to a crime

No Eighth Circuit case law addresses this issue.

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3. Balancing of interests

In districts where the three-prong balancing test has been adopted, the obligation of citizens to provide testimony is balanced against First Amendment interests in the freedom of the press and the free flow of information. This balancing test is based on Justice Powell's concurrence in Branzburg. See Branzburg v. Hayes, 408 U.S. 665, 709–24 (1972) (J. Powell, concurring).

In a civil case, where the privilege is recognized and a prima facie case of privilege has been established, the balance favors shielding confidential information from discovery. Where the information is non-confidential, a lesser showing of need and materiality may be required to overcome the privilege.

The district court in Hively, a criminal case, held that the defendant's "Sixth Amendment right to present a defense must be factored in to the analysis." United States v. Hively, 202 F. Supp. 2d 886, 891 (E.D. Ark. 2002).

The district court in Grand Jury Subpoena ABC held that the balancing test should tilt towards allowing discovery in the grand jury context, because the grand jury "'is an investigative body charged with the responsibility of determining whether or not a crime has been committed,' and it 'can investigate merely on suspicion that the law is being violated, or even just because it wants assurance that it is not.'" In re Grand Jury Subpoena American Broadcasting Companies, Inc., 947 F.Supp. 1314, 1320 (E.D. Ark. 1996) (quoting United States v. R. Enterprises Inc., 498 U.S. 292, 297 (1991).

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4. Subpoena not overbroad or unduly burdensome

No Eighth circuit case law addresses this issue in the context of the reporter's privilege.

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5. Threat to human life

No Eighth circuit case law addresses this issue in the context of the reporter's privilege.

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6. Material is not cumulative

No Eighth circuit case law addresses this issue in the context of the reporter's privilege.

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7. Civil/criminal rules of procedure

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

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8. Other elements

No Eighth circuit case law addresses other elements in the context of the reporter's privilege.

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C. Waiver or limits to testimony

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1. Is the privilege waivable?

Fridell suggests that the privilege is waivable but finds no waiver under the facts of the case. See J.J.C. v. Fridell, 165 F.R.D. 513, 517 (D. Minn. 1995) (finding that “[v]oluntary disclosure of information covered by a privilege could, but does not mandate, waiver of the privilege”).

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2. Elements of waiver

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a. Disclosure of confidential source's name

Fridell: Where "the newspaper did not disclose the identity of the informant to a third party, as such, the newspaper did not waive the reporter's privilege and is not compelled to produce reporter's notes." J.J.C. v. Fridell, 165 F.R.D. 513, 517 (D. Minn. 1995).

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b. Disclosure of non-confidential source's name

No Eighth circuit case law addresses this issue in the context of the reporter's privilege.

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c. Partial disclosure of information

Fridell: "Voluntary disclosure of information covered by a privilege could constitute, but does not mandate, a waiver of the privilege." "Mentioning who is not an informant is not the same as indicating who is the informant." J.J.C. v. Fridell, 165 F.R.D. 513, 517 (D. Minn. 1995).

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d. Other elements

No Eighth circuit case law addresses other elements in the context of the reporter's privilege.

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3. Agreement to partially testify act as waiver?

No Eighth Circuit case law addresses this issue in the context of the reporter's privilege, except Doe v. Young, 664 F.3d 727 (8th Cir. 2011).  In that case, the court held that a voluntary waiver of the privilege meant that an additional proffer of testimony by a reporter could not be excluded as a discovery sanction or to prevent unfair surprise.

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VII. What constitutes compliance?

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A. Newspaper articles

No Eighth circuit case law addresses this issue in the context of the reporter's privilege.

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B. Broadcast materials

No Eighth circuit case law addresses this issue in the context of the reporter's privilege.

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C. Testimony vs. affidavits

No Eighth circuit case law addresses this issue in the context of the reporter's privilege.

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D. Non-compliance remedies

No Eighth circuit case law addresses this issue in the context of the reporter's privilege.

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1. Civil contempt

In United States v. Hively, the court ordered the reporter to appear before the court to testify, and warned that "the Court is prepared to exercise its inherent contempt powers if [the reporter] declines to testify in spite of being directed to do so by this Court." United States v. Hively, 202 F.Supp.2d 886, 895 (E.D. Ark. 2002).

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a. Fines

No Eighth circuit case law addresses this issue in the context of the reporter's privilege.

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b. Jail

No Eighth circuit case law addresses this issue in the context of the reporter's privilege.

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2. Criminal contempt

No Eighth circuit case law addresses this issue in the context of the reporter's privilege.

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3. Other remedies

No Eighth circuit case law addresses this issue in the context of the reporter's privilege.

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VIII. Appealing

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A. Timing

Because the Eighth Circuit has never squarely dealt with these issues in the context of a claim of reporter's privilege, the following information is general in nature.

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1. Interlocutory appeals

Interlocutory appeals in the federal courts are governed by statute. See 28 U.S.C. 1292(b).

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2. Expedited appeals

The Eighth Circuit has adopted a plan to expedite appeals in criminal cases. The text of this plan can be found at the following link:

http://www.ca8.uscourts.gov/newcoa/coaFrame.html.

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B. Procedure

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1. To whom is the appeal made?

Appeals from district court rulings are made to the Eighth Circuit Court of Appeals.

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2. Stays pending appeal

Federal Rule of Appellate Procedure 8 is followed in the Eighth Circuit. Visit http://pacer.ca6.uscourts.gov/rules/rules08.htm.

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3. Nature of appeal

No Eighth circuit case law addresses this issue in the context of the reporter's privilege.

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4. Standard of review

The applicable standard of review is abuse of discretion.

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5. Addressing mootness questions

No Eighth circuit case law addresses this issue in the context of the reporter's privilege.

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6. Relief

No Eighth circuit case law addresses this issue in the context of the reporter's privilege.

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IX. Other issues

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A. Newsroom searches

The Eighth Circuit overturned a decision for the news media over the execution of a search warrant, finding that the district court had to examine the exceptions more closely. Citicasters v. McCaskill, 89 F.3d 1350 (8th Cir. 1996).

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B. Separation orders

No Eighth circuit case law addresses this issue in the context of the reporter's privilege.

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C. Third-party subpoenas

No Eighth circuit case law addresses this issue in the context of the reporter's privilege.

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D. The source's rights and interests

No Eighth circuit case law addresses this issue in the context of the reporter's privilege.

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