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9th Circuit

Reporter's Privilege Compendium

Theodore J. Boutrous, Jr.
Michael H. Dore

Theodore M. Kider

Jessica C. Benvenisty
Gibson, Dunn & Crutcher
333 South Grand Avenue
Los Angeles, California 90071-3197
Telephone: (213) 229-7000
Facsimile: (213) 229-7520

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I. Introduction: History & Background

Relying on the United States Supreme Court’s decision in Branzburg v. Hayes, the Ninth Circuit Court of Appeals offers journalists a relatively broad qualified privilege from compelled disclosure. The court has found that in an ordinary civil case, the litigant’s “interest in disclosure should yield to the journalist’s privilege.” Shoen v. Shoen, 48 F.3d 412, 416 (9th Cir. 1995) (citing Zerilli v. Smith, 656 F.2d 705, 713 (D.C. Cir. 1981)). It also has interpreted the role of the media broadly, declaring that “[w]hat makes journalism journalism is not its format but its content.” Shoen v. Shoen, 5 F.3d 1289, 1293 (9th Cir. 1993).

But Ninth Circuit cases applying the journalist’s privilege (also referred to as the reporter’s privilege) have had mixed results—protecting journalists in some circumstances but forcing disclosure in others. On the one hand, some courts within the circuit have held, for example, that an investigative author could not be forced to reveal information told to him in confidence for use in his book, id.; non-party reporters could not be deposed or forced to produce notes or other materials, L.A. Mem’l Coliseum Comm’n v. Nat’l Football League, 89 F.R.D. 489, 493 (C.D. Cal. 1981); and a non-party magazine publisher could not be compelled to reveal unpublished information, Carushka, Inc. v. Premiere Prods., Inc., 17 Med. L. Rep. 2001 (C.D. Cal. Sep. 1, 1989). On the other hand, other courts within the circuit have held that a television news cameraman must testify regarding his personal observations while on assignment, Dillon v. City & Cty. of San Francisco, 748 F. Supp. 722 (N.D. Cal. 1990); that a tabloid must reveal its sources in a defamation action where the plaintiff must show “actual malice,” Star Editorial, Inc. v. U.S. Dist. Court, 7 F.3d 856, 861 (9th Cir. 1993); that a journalist could be jailed for refusing to identify the confidential sources who had provided him with copies of non-public court documents, Farr v. Pitchess, 522 F.2d 464, 468-69 (9th Cir. 1975), cert. denied, 427 U.S. 912 (1976); that a blogger could be held in civil contempt where he refused to provide to a grand jury his unpublished video footage obtained in the course of newsgathering, In re Grand Jury Subpoena (Wolf v. United States), 201 Fed. App’x 430, 423-33 (9th Cir. 2006); and that reporters could be forced to appear before a grand jury and provide materials regarding their confidential source for grand jury transcripts, In re Grand Jury Subpoenas to Fainaru-Wada & Williams, 438 F. Supp. 2d 1111, 1121 (N.D. Cal. 2006).

Based on these and other cases, predicting how a court in the Ninth Circuit will react to a particular set of factual circumstances can be difficult. While the reporter’s privilege is relatively strong in theory, the protection offered by the Ninth Circuit has varied in practice.

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II. Authority for and source of the right

The Ninth Circuit developed a qualified privilege protecting reporters from compelled disclosure after the Supreme Court decided Branzburg v. Hayes, 408 U.S. 665 (1972). In Branzburg, the Supreme Court expressly rejected any privilege for reporters in the grand jury context and held that “whatever burden might result from requiring news gatherers to testify would not override the public interest in law enforcement and in ensuring effective grand jury proceedings.” Id. at 690. A reporter’s right to keep sources confidential in the Ninth Circuit depends upon whether the circumstances of a case mirror those in Branzburg.

When the court finds that a case is sufficiently analogous to Branzburg, it refuses to allow journalists to invoke the reporter’s privilege. See, e.g., In re Grand Jury Proceedings (Scarce v. United States), 5 F.3d 397, 400 (9th Cir. 1993), cert. denied, 510 U.S. 1041 (1994) (affirming a district court’s ruling finding academic author in civil contempt for refusing to answer certain questions propounded to him by a federal grand jury); In re Lewis, 517 F. 2d 236, 238 (9th Cir. 1975) (affirming the contempt citation against a general manager of a radio station who refused to comply with a federal grand jury subpoena); In re Grand Jury Subpoena, No. 16-03-217, 875 F.3d 1179, 1188 (9th Cir. 2017) (affirming a district court’s enforcement of a subpoena to Glassdoor.com to identify potential witnesses to alleged fraud by a government contractor). However, when the court concludes that the facts are sufficiently distinct from Branzburg, it is more likely to find that the privilege applies. See, e.g., Bursey v. United States, 466 F.2d 1059, 1088 (9th Cir. 1972) (reversing a district court’s contempt order against members of the Black Panther Party who refused to answer questions during a grand jury proceeding because there was no substantial connection between the information sought and the criminal conduct being investigated, and holding that the “substantial connection” test was consistent with Branzburg), superseded on other grounds by statute, as recognized in In re Grand Jury Proceedings (Doe v. United States), 863 F.2d 667 (9th Cir. 1988).

In cases that do not involve grand jury proceedings, the Ninth Circuit relies on Justice Powell’s concurrence in Branzburg and recognizes a qualified privilege for reporters. See Farr v. Pitchess, 522 F.2d 464, 468-69 (9th Cir. 1975), cert. denied, 427 U.S. 912 (1976). This qualified privilege requires that the claimed First Amendment privilege and the opposing need for disclosure be weighed in light of the surrounding facts and a balance struck to determine where lies the paramount interest. See id. at 468; Dillon v. City & Cty. of San Francisco, 748 F. Supp. 722 (N.D. Cal. 1990) (denying a cameraman’s motion to quash because his personal observations were not privileged).

Other sources:

1. Justice Department Guidelines (28 C.F.R. § 50.10)

28 C.F.R. § 50.10 establishes the Department of Justice’s policy regarding issuance of subpoenas to members of the news media. Section 50.10 begins by declaring the overarching principle that “[b]ecause freedom of the press can be no broader than the freedom of members of the news media to investigate and report the news, the Department’s policy is intended to provide protection to members of the news media from certain law enforcement tools, whether criminal or civil, that might unreasonably impair newsgathering activities.” Section 50.10(a) calls on the Department to “strike the proper balance among several vital interests: Protecting national security, ensuring public safety, promoting effective law enforcement and the fair administration of justice, and safeguarding the essential role of the free press in fostering government accountability and an open society.” It goes on to state that “[t]he Department views the use of certain law enforcement tools, including subpoenas, court orders . . . , and search warrants to seek information from, or records of, non-consenting members of the news media as extraordinary measures, not standard investigatory practices.”

Under the guidelines: (i) subpoenas, certain court orders, and search warrants to seek information from the news media can be used only “when the information sought is essential to a successful investigation, prosecution, or litigation” and “after all reasonable alternative attempts have been made to obtain the information from alternative sources” (id. § 50.10(a)(3)); and (ii) “[i]n criminal matters, there should be reasonable grounds to believe, based on public information, or information from non-media sources, that a crime has occurred, and that the information sought is essential to a successful investigation or prosecution” (id. § 50.10(c)(4)(ii)(A)).

Courts have held, however, that failure to fulfill the requirements of § 50.10 is not an independent ground for quashing a journalist subpoena. See, e.g., United States v. Schneider, 2003 U.S. Dist. LEXIS 27324, at *11 (N.D. Cal. Nov. 18, 2003) (“The government’s failure to abide by DOJ’s regulations is not an independent ground for quashing a subpoena.”); see also In re Grand Jury Subpoenas to Fainaru-Wada & Williams, 438 F. Supp. 2d 1111, 1121 n.9 (N.D. Cal. 2006) (noting that the regulations “do not provide Movants with any enforceable rights”).

2. Common Law

Jaffee v. Redmond, 518 U.S. 1 (1996), arguably compels recognition of a common-law reporter’s privilege under Rule 501 of the Federal Rules of Evidence, which provides that the common law generally covers a claim of privilege. See In re Grand Jury Subpoena to Judith Miller, 438 F.3d 1141, 1166 (D.C. Cir. 2005), cert. denied, 125 S. Ct. 2977 (2005); id. at 1170-72 (Tatel, J., concurring) (applying Jaffee to find the existence of a common-law reporter’s privilege); see also N.Y. Times Co. v. Gonzales, 459 F.3d 160, 181 (2d Cir. 2006) (Sack, J., dissenting) (“I have no doubt that there has been developed in [the last] thirty-four years federal common-law protection for journalists’ sources under [Rule 501] as interpreted by Jaffee.”). Rule 501 expressly empowers the federal courts to recognize and elucidate privileges “in the light of reason and experience.” Fed. R. Evid. 501. In Jaffee, the Court applied Rule 501 to recognize a psychotherapist-patient privilege, articulating three closely interrelated factors to decide whether particular privileges should be recognized: (1) whether such a privilege is widely recognized by the states, (2) whether the proposed privilege serves significant public and private interests, and (3) whether recognition of those interests outweighs the burden on truth-seeking that might be imposed by the privilege. See 518 U.S. 1. Since Branzburg, an overwhelming majority of jurisdictions have adopted a reporter’s privilege through statute or judicial decision (or both). Nevertheless, courts in the Ninth Circuit so far have chosen not to recognize a common-law reporter’s privilege. In re Grand Jury Subpoena (Wolf v. United States), 201 Fed. App’x 430, 433 (9th Cir. 2006); In re Grand Jury Subpoenas to Fainaru-Wada & Williams, 438 F. Supp. 2d 1111, 1118-19 (N.D. Cal. 2006); see also Scarce, 5 F.3d at 402 (rejecting related claim of a “scholar’s privilege” as a matter of common law).

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A. Shield law statute

Nearly all states within the Ninth Circuit have enacted shield law statutes, which protect journalists from being held in contempt of court when they refuse to disclose their sources and/or unpublished information in their possession.

California’s shield law is set out in California Evidence Code section 1070, and it protects journalists (defined to include publishers, editors, reporters, or other persons employed by a journalistic organization, whether their work is in print, radio, or television) from being held in contempt for refusing to “disclose the source of any information” or for “refusing to disclose any unpublished information obtained or prepared in gathering, receiving, or processing of information for communication to the public.” However, the California Supreme Court has held that the shield law’s protection is not an absolute privilege, as it may yield to a criminal defendant’s right to a fair trial. Delaney v. Superior Court, 50 Cal. 3d 785, 805, 789 P.2d 934, 946 (1990); see also Herrera v. Hense, No. CV 08-2410-JFW CT, 2008 WL 4609978, at *20 (C.D. Cal. Oct. 10, 2008), aff’d sub nom. Herrera v. Harrington, 456 F. App’x 668 (9th Cir. 2011) (explaining that to overcome the shield law, a criminal defendant must show a reasonable possibility that the unpublished information will materially assist his defense, and if so, the trial court must “balance the interests of the newsperson against those of the defendant”). 

Other states, including Arizona, Nevada, Oregon, and Alaska have shield laws that are more protective than California’s. Nevada’s, for example, confers an absolute privilege, providing that no journalist (broadly defined) may be required to disclose any unpublished information or information regarding his or her sources. Nev. Rev. Stat. Ann. § 49.275 (West). Oregon’s statute is of a piece with Nevada’s, except it adds that journalists may not be subject to searches by any government authority with the power to produce evidence, including by search warrants, except when “probable cause exists to believe” that the journalist has committed, is committing, or is about to commit a crime.  Or. Rev. Stat. Ann. § 44.520 (West). Likewise, Arizona’s shield law protects journalists from having to disclose information regarding their sources (but not unpublished information) without qualification. Ariz. Rev. Stat. Ann. § 12-2237. Montana’s Media Confidentiality Act provides an absolute privilege as to unpublished information and information regarding sources, plus protection against findings of contempt for refusing to produce information requested in a subpoena. Mont. Code Ann. § 26-1-902 (West). Alaska’s statute protects only information regarding sources, and states that a “reporter may not be compelled to disclose the source of information procured or obtained while acting in the course of duties as a . . . reporter.” Alaska Stat. Ann. § 09.25.300 (West).

Finally, a number of states have shield laws that are similar to California’s but include some qualifications. Washington’s, for instance, prohibits a judicial, legislative, or administrative body from compelling the news media to “testify, produce, or otherwise disclose”: “(a) the identity of a source of any news . . .” or (b) any news or information obtained or prepared by the news media in its capacity in gathering, receiving, or processing news or information,” including outtakes, excluding physical evidence of a crime. Wash. Rev. Code Ann. § 5.68.010 (West). The news media’s privilege with respect to information regarding its sources (in subsection “a”) is absolute, Republic of Kazakhstan v. Does 1-100, 192 Wash. App. 773, 786, 368 P.3d 524, 530 (2016), while its privilege as to other information (in subsection “b”) is qualified. Specifically, the party seeking information under subsection “a” must establish, inter alia, that the news or information is “highly material and relevant,” “critical or necessary” to a party’s legal claim, and that the party has “exhausted all reasonable and available means to obtain it from alternative sources.” Wash. Rev. Code Ann. § 5.68.010. 

Idaho does not have a shield law.  Hawaii no longer has a state shield law, having repealed it on June 30, 2013.

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B. State constitutional provision

California’s shield law is codified in its state constitution:  Article I, section 2, subdivision (b) of the California Constitution mirrors California Evidence Code section 1070 discussed above.

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C. Federal constitutional provision

D. Other sources

III. Scope of protection

A. Generally

The Ninth Circuit offers relatively broad protection to journalists under the reporter’s privilege, extending the qualified privilege to non-confidential information and investigative book authors. See Shoen v. Shoen, 5 F.3d 1289, 1290, 1294-96 (9th Cir. 1993) (Shoen I) (reversing and remanding an order holding an investigative author in contempt for refusing to disclose non-confidential information told to him for use in his book). Further, the reporter’s privilege in the Ninth Circuit yields to other interests only in the most exceptional cases. See Shoen v. Shoen, 48 F.3d 412, 416 (9th Cir. 1995) (Shoen II) (reversing an order holding an investigative book author in contempt for refusing to turn over tapes and notes of conversations with a man accused by his sons of defamation); In re Stratosphere Corp. Sec. Litig., 183 F.R.D. 684, 686 (D. Nev. 1999) (denying plaintiffs’ motion to compel testimony of a non-party journalist because plaintiffs had not exhausted all other reasonable sources for the information, had not deposed all of the defendants about the statements in question, and had not asked any defendant specifically about the article in question). The protection offered to journalists in the Ninth Circuit, however, is not as broad as some of the protections offered under state shield laws within the Ninth Circuit.

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B. Absolute or qualified privilege

The Ninth Circuit recognizes a qualified privilege against compelled disclosure when facts acquired by a reporter in the course of gathering the news become the target of discovery. See Shoen I, 5 F.3d at 1292. The same qualified privilege applies for maintaining the confidentiality of sources’ identities. See Farr v. Pitchess, 522 F.2d 464, 467 (9th Cir. 1975), cert. denied, 427 U.S. 912 (1976) (affirming denial of reporter’s habeas corpus petition, holding that the state court had a duty to enforce nondisclosure orders to protect accused person’s due process rights).

In grand jury cases, the Ninth Circuit, following Branzburg, subordinates the journalists’ right to keep a source of information secret to the more compelling requirement that a grand jury be able to secure factual data relating to its investigation of criminal conduct. Id. at 467-68; see also In re Grand Jury Subpoena, No. 16-03-217, 875 F.3d 1179, 1185 (9th Cir. 2017) (“In Branzburg v. Hayes, the Supreme Court held that a reporter—even one who has promised his sources anonymity—must cooperate with a grand jury investigation unless there is evidence that the investigation is being conducted in bad faith”); United States v. Curtin, 489 F.3d 935, 955 (9th Cir. 2007) (Branzburg “refused to create a First Amendment free speech and free press privilege for news reporters to protect their sources from grand jury inquiries”). There, the court applies “a limited balancing of First Amendment interests . . . only ‘where a grand jury inquiry is not conducted in good faith, or where the inquiry does not involve a legitimate need of law enforcement, or has only a remote and tenuous relationship to the subject of the investigation.’” In re Grand Jury Subpoena (Wolf v. United States), 201 Fed. App’x 430, 432 (9th Cir. 2006) (quoting In re Grand Jury Proceedings (Scarce v. United States), 5 F.3d 397, 401 (9th Cir. 1993)).

In non-grand jury cases, in keeping with Justice Powell’s concurrence in Branzburg, the Ninth Circuit requires that “the claimed First Amendment privilege and the opposing need for disclosure be judicially weighed in light of the surrounding facts and a balance struck to determine where lies the paramount interest.” Farr, 522 F.2d at 468.

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C. Type of case

1. Civil

In the Ninth Circuit, non-grand jury cases, both civil and criminal, arguably are subject to the Branzburg balancing test. See Farr, 522 F.2d at 467-68. In the ordinary civil case, the “‘litigant’s interest in disclosure should yield to the journalist’s privilege.’” Shoen II, 48 F.3d at 416 (quoting Zerilli v. Smith, 656 F.2d 705, 712 (D.C. Cir. 1981)). In Shoen II, the Ninth Circuit explained that “a civil litigant is entitled to requested discovery notwithstanding a valid assertion of the journalist’s privilege by a nonparty only upon a showing that the requested material is: (1) unavailable despite exhaustion of all reasonable alternative sources; (2) noncumulative; and (3) clearly relevant to an important issue in the case.” 48 F.3d at 416.

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2. Criminal

Subpoenas are more likely to be enforced in criminal cases. In Farr, after explaining that “[t]he application of the Branzburg holding to non-grand jury cases seems to require that the claimed First Amendment privilege and the opposing need for disclosure be judicially weighed in light of the surrounding facts and a balance struck to determine where lies the paramount interest,” the court ultimately held that in the criminal case before it, protecting the court’s ability to ensure the defendants’ due process outweighed the First Amendment interest. 522 F.2d at 468-69. In a different case, a district court explained that “[c]ourts have emphasized that the public interest in protecting journalists’ confidential sources is even stronger in civil cases than it is in criminal cases,” but also noted that Congress had recently enacted the Privacy Protection Act of 1980, “protecting journalists’ work product and, to a lesser extent, non-work product documentary materials, against seizure by the government for use in criminal cases.” L.A. Mem’l Coliseum Comm’n v. Nat’l Football League, 89 F.R.D. 489, 493 (C.D. Cal. 1981)

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3. Grand jury

Generally, reporters in the Ninth Circuit are not entitled to a First Amendment privilege in refusing to testify before a federal grand jury regarding information received in confidence. See Scarce, 5 F.3d at 400 (affirming a judgment holding an academic author in contempt for refusing to answer certain questions asked by a federal grand jury after he claimed he was entitled to a scholar’s privilege, similar to the reporter’s privilege). The U.S. Supreme Court, and consequently the Ninth Circuit, do not recognize the privilege in most grand jury proceedings, based on the theory that whatever burden might result from requiring reporters to testify would not override the public interest in law enforcement and in ensuring effective grand jury proceedings. See id. (citing Branzburg v. Hayes, 408 U.S. 665, 690 (1972)).

Several decisions reflect the courts’ reluctance to quash grand jury subpoenas issued to journalists. In In re Grand Jury Subpoenas to Fainaru-Wada & Williams, for example, the district court denied a motion to quash filed by two reporters with the San Francisco Chronicle who published articles and co-authored a book relating to the prosecutions of those involved with the Bay Area Laboratory Co-Operative (“BALCO”) and baseball player Barry Bonds’s alleged use of performance enhancing drugs. See 438 F. Supp. 2d 1111, 1113 (N.D. Cal. 2006). The articles and book reported on and quoted testimony given to the grand jury during the BALCO investigation, leading to a grand jury subpoena to determine the reporters’ source for the testimony. See id. The court rejected a First Amendment-based qualified reporter’s privilege, on the basis that cases recognizing such a privilege did not involve grand jury proceedings. Id. at 1116. According to the court, because there was not “any abuse of the grand jury process,” no balancing of interests under the First Amendment was necessary. Id. at 1117-18. The court also refused to recognize a common-law reporter’s privilege under Federal Rule of Evidence 501, explaining that “even if a reporter’s privilege exists or should be recognized under the federal common law, the Court concludes that it would be overcome on the facts of this case.” Id. at 1119.

In Wolf, the Ninth Circuit filed an unpublished memorandum opinion that affirmed a district court order finding freelance videographer Joshua Wolf in civil contempt. 201 Fed. App’x at 434. Wolf had refused to abide by a grand jury subpoena ordering him to produce unaired video footage he shot during a 2005 demonstration in San Francisco. See id. at 431. The unpublished opinion rejected Wolf’s appeal and affirmed the district court’s order, stating that the Ninth Circuit’s Scarce decision interpreting Branzburg required a limited balancing of First Amendment interests only in certain circumstances, none of which existed in Wolf’s case. See id. at 432. The Ninth Circuit agreed with the district court that there was no showing that the grand jury was not being conducted in “good faith,” or that there was no legitimate law enforcement need involved, or that there was only a remote and tenuous relationship to the investigation. Id. at 432-33 (citing Scarce, 5 F.3d at 401). In any event, according to the Wolf court, “[e]ven if we applied a balancing test, we would still affirm.” 201 Fed. App’x at 433 n.2.

The Ninth Circuit also noted the argument presented by Wolf and amici that the court should recognize a federal common-law reporter’s privilege. Citing Branzburg and Scarce, the court stated only that “[t]his argument has been squarely rejected.” Wolf, 201 Fed. App’x at 433.

These decisions nevertheless show that, at a minimum, journalists are protected from grand jury inquiries where a grand jury investigation is instituted or conducted other than in good faith, where the information sought bears only a remote and tenuous relationship to the subject of the investigation, or where there is some other reason to believe that the testimony implicates confidential source relationships without a legitimate need of law enforcement. In Bursey v. United States, the Ninth Circuit upheld a reporter’s privilege in a grand jury case where there was no substantial connection between the information sought and the conduct being investigated. 466 F.2d 1059, 1088 (9th Cir. 1972), superseded on other grounds by statute, as recognized in In re Grand Jury Proceedings (Doe v. United States), 863 F.2d 667 (9th Cir. 1988).

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D. Information and/or identity of source

The reporter’s privilege will specifically protect the identity of a source in a non-grand jury case if the court concludes that the First Amendment consideration outweighs the plaintiff’s need for the evidence. See, e.g., L.A. Mem’l Coliseum Comm’n, 89 F.R.D. at 492-95 (granting reporters’ motions to quash because of a failure to show an exhaustion of other means of obtaining information or that the information sought went to the heart of the underlying claims); F. Marc Schaffel Prods., LLC v. TMZ Prods., Inc., No. CV 10-01306 GHK (SSx), 2010 WL 11549388, at *4 (C.D. Cal. Dec. 16, 2010) (qualified reporter’s privilege could not be overcome because the plaintiff had not yet exhausted alternative sources); but see Farr, 522 F.2d at 469.

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E. Confidential and/or nonconfidential information

In the Ninth Circuit, both confidential and non-confidential information are privileged under certain circumstances in non-grand jury cases. The Ninth Circuit has yet to articulate a formal test when the information sought is confidential, but it has looked approvingly to factors that other circuits have considered. See Shoen II, 48 F.3d at 416 (“The Second Circuit, for example, applies the following conjunctive test for determining whether a journalist must disclose a confidential source in a civil case: ‘disclosure may be ordered only upon a clear and specific showing that the information is: highly material and relevant, necessary or critical to the maintenance of the claim, and not obtainable from other available sources.’”); see also, e.g., Condit v. Nat’l Enquirer, 289 F. Supp. 2d 1175, 1177 (E.D. Cal. 2003) (looking to the Second Circuit factors articulated in Shoen II).

The Ninth Circuit has also stated that “the journalist’s privilege applies to a journalist’s resource materials even in the absence of the element of confidentiality,” while adding, however, “that the absence of confidentiality may be considered in the balance of competing interests as a factor that diminishes the journalist’s, and the public’s, interest in non-disclosure.” Shoen I, 5 F.3d at 1295. “[W]here information sought is not confidential,” the Ninth Circuit has explained that “a civil litigant is entitled to requested discovery notwithstanding a valid assertion of the journalist’s privilege by a nonparty only upon a showing that the requested material is: (1) unavailable despite exhaustion of all reasonable alternative sources; (2) noncumulative; and (3) clearly relevant to an important issue in the case.” Shoen II, 48 F.3d at 416. In addition, “there must be a showing of actual relevance; a showing of potential relevance will not suffice.” Id.

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F. Published and/or non-published material

There is no published case in the Ninth Circuit applying federal law in which a court explicitly differentiates between published and unpublished information. However, in Los Angeles Memorial Coliseum Commission, a district court applied the federal privilege and the California shield law—which protects sources and unpublished information—and noted that “California law and federal common law appear to coincide, both in their application and in their scope.” 89 F.R.D. at 492-95.

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G. Reporter's personal observations

A district court within the Ninth Circuit held that the personal observations of a journalist who was “an eyewitness to the alleged beating of a citizen by two police officers” were not protected under the First Amendment by the reporter’s privilege. Dillon v. City & Cty. of San Francisco, 748 F. Supp. 722, 726 (N.D. Cal. 1990). Subsequently, in an unpublished decision, another court within the Ninth Circuit cited Dillon to explain that “[i]t is clear that the privilege does not extend to personal observations made by the reporter when those observations are made in public places,” with the rationale that “a reporter should not be immunized from testifying about events which any other person might have observed, and about which that person could be compelled to testify.” Kaiyala v. City of Seattle, No. C91-1609R, 1992 WL 396329, at *2 n.3 (W.D. Wash. Sept. 21, 1992). The Kaiyala court granted the motion to quash a subpoena for a newspaper reporter’s personal impressions from interviews, explaining that it was “not convinced that the qualified reporter’s privilege . . . extends to this case” but that the plaintiff had “not yet demonstrated that the burden his discovery would impose on” the reporter, on her newspaper, “and on the news gathering process of which they are a part, is justified by the probative value of the material he seeks.” Id. at *2. Ultimately, Kaiyala left open the question of whether “the ‘personal observation’ exception” from Dillon “also extends to observations made within the context of an interview.” Id. at *2 n.3.

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H. Media as a party

A district court within the Ninth Circuit has acknowledged that the reporter’s privilege does not “go[] away merely because a publisher or a journalist is named in the civil action.” Condit, 289 F. Supp. 2d at 1180. But “[i]n the context of a civil libel action brought by a public figure plaintiff, courts have noted that the balance shifts somewhat more in favor of disclosure when the privilege is asserted by a media defendant.” Id.; see also, e.g., Dangerfield v. Star Editorial, Inc., 817 F. Supp. 833, 836 (C.D. Cal. 1993) (same).

At least one federal court within the Ninth Circuit has applied the California qualified reporter’s privilege described in Mitchell v. Superior Court, 37 Cal. 3d 268, 279 (1984), which considers as part of five interrelated factors “whether the reporter is a party.” See Rogers v. Home Shopping Network, 73 F. Supp. 2d 1140, 1143 (C.D. Cal. 1999).

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I. Defamation actions

Within the Ninth Circuit, “[i]n the context of a civil libel action brought by a public figure plaintiff, courts have noted that the balance shifts somewhat more in favor of disclosure when the privilege is asserted by a media defendant.” Dangerfield, 817 F. Supp. at 836. This is because “[t]he plaintiff faces a heavy burden to prove that the defendant acted with ‘actual malice’ by publishing the material knowing it was false or with reckless disregard of whether it was false,” and “[i]n certain situations, the identity of a reporter’s sources may be essential to prove this element.” Id. Even so, “compelled disclosure by a journalist should be a last resort in keeping with the First Amendment requirement to show a compelling interest.” Id.

The factors that a court considers in determining whether the reporter’s privilege applies in a defamation action have been articulated several different ways, all similar. Dangerfield, for instance, stated that “[t]he factors considered fall into three categories: (1) the litigant’s need for the information sought—does it go to the heart of the plaintiff’s claim; (2) the availability of alternative sources for the information; and (3) the plaintiff’s showing that the claim is not frivolous or without merit.” 817 F. Supp. at 836-37. Earlier, in DeRoburt v. Gannett Co., Inc., a court looked at: “First and foremost, is the information sought a ‘critical element’ of the plaintiff’s cause of action?; does it ‘go to the heart’ of the plaintiff’s case? Second, has the plaintiff ‘demonstrated specific need’ for the evidence?; is the information otherwise not reasonably available to him? Third, has the plaintiff made a showing that his claim is not ‘without merit’?” 507 F. Supp. 880, 886 (D. Haw. 1981). Finally, in Shoen II, also a libel case, the court explained that “a civil litigant is entitled to requested discovery notwithstanding a valid assertion of the journalist’s privilege by a nonparty only upon a showing that the requested material is: (1) unavailable despite exhaustion of all reasonable alternative sources; (2) noncumulative; and (3) clearly relevant to an important issue in the case.” 48 F.3d at 416.

Some federal courts examining libel and defamation actions have applied state law to evaluate whether a privilege should apply. See, e.g., Rogers, 73 F. Supp. 2d at 1142-43 (applying the Mitchell test to determine that California’s qualified reporter’s privilege had not been overcome); Newton v. Nat’l Broad. Co., Inc., 109 F.R.D. 522, 527, 530 (D. Nev. 1985) (determining that the federal privilege would be overridden in this case but that the state shield law applied, despite that it “may significantly impair Plaintiff’s ability to meet his burden of proving ‘actual malice’”).

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IV. Who is covered

The Ninth Circuit has historically applied a liberal standard when determining who has standing to invoke the reporter’s privilege. Instead of focusing on the professional affiliation of the person invoking the privilege, the Ninth Circuit usually focuses on whether the privilege-claimer had an intent to disseminate information to the public at the time he or she was gathering the information. Hence, the critical question is whether the person seeking to invoke the privilege had the intent to use material—sought, gathered, or received—to disseminate information to the public and whether such intent existed at the inception of the newsgathering process. See Shoen v. Shoen, 5 F.3d 1289, 1293 (9th Cir. 1993) (Shoen I) (reversing and remanding an order that held an investigative reporter in contempt for refusing to divulge information that was gathered for use in his book). The Shoen I court adopted the reasoning of the Second Circuit when articulating the above test, stating “the journalist’s privilege is designed to protect investigative reporting, regardless of the medium used to report the news to the public.” Id. That said, the Ninth Circuit panel addressing web journalist Josh Wolf’s appeal of a civil contempt order did not explicitly address whether or not Wolf was sufficiently a “journalist” to have standing to invoke the reporter’s privilege, and suggested that the California state law protection would not apply because “Wolf produced no evidence this videotape was made while he was” connected with or employed by a newspaper, magazine, or other periodical publication, or by a press association or wire service.  In re Grand Jury Subpoena (Wolf v. United States), 201 Fed. App’x 430, 432 n.1 (9th Cir. 2006) (citing Cal. Const. art. I, § 2(b)).

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A. Statutory and case law definitions

1. Traditional news gatherers

a. Reporter

The Ninth Circuit does not explicitly define the term “reporter” when deciding whether an individual attempting to invoke the reporter’s privilege has standing. The Ninth Circuit usually determines standing based on the activity of the individual claiming the privilege, rather than on the professional affiliation of that person; therefore there is no need for the court to formulate a definition of such a term. Shoen I, 5 F.3d at 1293 (following the Second Circuit’s reasoning in Von Bulow v. Von Bulow, 811 F.2d 136 (2d Cir. 1987)); see also Ayala v. Ayers, 668 F. Supp. 2d 1248, 1250 (S.D. Cal. 2009) (finding that an investigative reporter’s book manuscript fell within the journalist’s privilege, regardless of whether the author was “employed in the traditional print or broadcast media”).

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b. Editor

The Ninth Circuit does not explicitly define the term “editor” when deciding whether an individual attempting to invoke the reporter’s privilege has standing. The Ninth Circuit determines standing based on the activity of the individual claiming the privilege, rather than on the professional affiliation of that person; therefore there is no need for the court to formulate a definition of such a term. Shoen I, 5 F.3d at 1293 (following the Second Circuit’s reasoning in Von Bulow).

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c. News

Information gathered in the pursuit of news is protected under the reporter’s privilege. Shoen I, 5 F.3d at 1293. The Ninth Circuit has not formulated a definition of the term “news,” but has recognized the importance of “newsworthy” facts on topical and controversial matters of great public interest. Id.

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d. Photo journalist

The Ninth Circuit does not explicitly define the term “photojournalist” when deciding whether an individual attempting to invoke the reporter’s privilege has standing. The Ninth Circuit determines standing based on the activity of the individual claiming the privilege, rather than on the professional affiliation of that person; therefore there is no need for the court to formulate a definition of such a term. Shoen I, 5 F.3d at 1293 (following the Second Circuit’s reasoning in Von Bulow).

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e. News organization/medium

The Shoen I court rejected the proposition that only members of specific news media have standing to assert the reporter’s privilege. Shoen I, 5 F.3d at 1293. According to the court, “the journalist’s privilege is designed to protect investigative reporting, regardless of the medium used to report the news to the public.” Id. The court further held that “what makes journalism journalism is not its format but its content.” Id.

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2. Others, including non-traditional news gatherers

The Ninth Circuit has allowed some nontraditional news gatherers, but not others, to invoke the reporter’s privilege. In Shoen I, the court allowed an investigative book author to assert the privilege. The court found that the privilege was not limited to reporters employed by the traditional print or broadcast media because the purpose of the privilege was not solely to protect newspaper or television reporters, but to protect the activity of “investigative reporting” more generally. Shoen I, 5 F.3d at 1293 (adopting the Second Circuit’s reasoning in Von Bulow). In that vein, a district court in Washington allowed a student journalist, writing for her graduate school magazine with the intention of writing a book about the same subject later on, to claim the privilege. Jimenez v. City of Chicago, 733 F. Supp. 2d 1268, 1272 (W.D. Wash. 2010).

By contrast, a district court in Arizona interpreting California’s shield law held that a blogger who only “self-publishes material and collaborates on web video presentations,” without showing that she was affiliated with a journalistic organization such as a “newspaper, magazine, periodical, book, pamphlet, news service, wire service, news or feature syndicate, broadcast station or network, or cable television system,” was not covered by the shield law.  Xcentric Ventures, L.L.C. v. Borodkin, 934 F. Supp. 2d 1125, 1145 (D. Ariz. 2013), aff’d sub nom. Xcentric Ventures, LLC v. Borodkin, 798 F.3d 1201 (9th Cir. 2015).  In addition, a district court in California found that the privilege did not apply to an investor whose only publications were negative reports about the companies in which the investor had taken a short position.  Beaver Cty. Employers Ret. Fund v. Tile Shop Holdings, Inc., No. 16-MC-80062-JSC, 2016 WL 3162218, at *3-4 (N.D. Cal. June 7, 2016) (noting that the subpoenaed-party’s “information-disseminating activity is not based on a judgment about newsworthiness, but rather on its own financial needs and whether it can make a profit by shorting the company on which it publishes its report”).

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B. Whose privilege is it?

The reporter’s privilege “belongs to the journalist alone and cannot be waived by persons other than the journalist.”  L.A. Mem’l Coliseum Comm’n v. Nat’l Football League, 89 F.R.D. 489, 494 (C.D. Cal. 1981).

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V. Procedures for issuing and contesting subpoenas

A. What subpoena server must do

1. Service of subpoena, time

There are no special requirements for serving subpoenas on a member of the news media in the Ninth Circuit. Generally, a party desiring to take the deposition of any person upon oral examination shall give reasonable notice in writing to every other party to the action. Fed. R. Civ. P. 30(b)(1). “If a person is a party, a simple notice of deposition is sufficient to compel attendance, while a non-party’s attendance can be compelled only by subpoena.”  Jules Jordan Video, Inc. v. 144942 Canada Inc., 617 F.3d 1146, 1158 (9th Cir. 2010).

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2. Deposit of security

There is no statutory or case law addressing this issue.

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3. Filing of affidavit

There is no statutory or case law addressing this issue.

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4. Judicial approval

Neither a judge nor a magistrate needs to approve a subpoena before a party can serve it. Subpoenas are issued either by the clerk of the court upon the request of a party or an attorney if that attorney is authorized to practice in the issuing court. Fed. R. Civ. P. 45 (a)(3).

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5. Service of police or other administrative subpoenas

There is no statutory or case law addressing this issue.

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B. How to Quash

1. Contact other party first

There is no statutory or case law addressing this issue.

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2. Filing an objection or a notice of intent

The objection must be served before the earlier of the time specified for compliance or 14 days after the subpoena is served. Fed. R. Civ. P. 45.

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3. File a motion to quash

a. Which court?

The motion to quash should be filed in the same court where compliance is required. Fed. R. Civ. P. 45(c)(3)(A).

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b. Motion to compel

c. Timing

To be timely, a motion to quash a subpoena must be made prior to the return date of the subpoena.  See, e.g., Amtrust N. Am., Inc. v. Safebuilt Ins. Servs., Inc., No. 2:16-MC-0145 KJM AC, 2016 WL 5469257, at *2 (E.D. Cal. Sept. 29, 2016).

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d. Language

There is no statutory or case law addressing this issue.

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e. Additional material

There is no statutory or case law addressing this issue.

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4. In camera review

a. Necessity

There is no statutory or case law addressing this issue.

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There is no statutory or case law addressing this issue.

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c. Consequences of refusing

There is no statutory or case law addressing this issue.

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5. Briefing schedule

There is no statutory or case law addressing this issue.

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6. Amicus briefs

The Ninth Circuit routinely accepts amicus briefs. In In re Grand Jury Proceedings (Scarce v. United States), the Ninth Circuit accepted an amicus brief from the American Civil Liberties Union Foundation of Washington. 5 F.3d 397 (9th Cir. 1993), cert. denied, 510 U.S. 1041 (1994). In Shoen II, briefs were accepted by the Ninth Circuit on behalf of amici Arizona Newspapers Association; Radio-Television News Directors Association; and Association of American Publishers. Shoen II, 48 F.3d at 416. Likewise, in In re Grand Jury Subpoena (Wolf v. United States), 201 Fed. App’x 430 (9th Cir. 2006), the Ninth Circuit accepted and addressed amici’s arguments in favor of applying a constitutional and common-law reporter’s privilege in that case. See id. at 433. The district court in In re Grand Jury Subpoenas to Fainaru-Wada & Williams, 438 F. Supp. 2d 1111 (N.D. Cal. 2006), also considered an amicus brief filed on behalf of the journalists in that case. Id. at 1112 n.1.

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VI. Substantive law on contesting subpoenas

A. Burden, standard of proof

When a journalist properly invokes the reporter’s privilege, the burden shifts to the party seeking the discovery to demonstrate a sufficiently compelling need for the journalist’s materials in order to overcome the privilege. See Shoen v. Shoen, 5 F.3d 1289, 1296 (9th Cir. 1993) (Shoen I) (reversing and remanding an order holding an investigative reporter in contempt for refusing to divulge information that was gathered for use in his book).

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B. Elements

A party trying to overcome the reporter’s privilege must show that the material is: (1) unavailable despite exhaustion of all reasonable sources; (2) non-cumulative; and (3) clearly relevant to an important issue in the case. See Shoen v. Shoen, 48 F.3d 412, 416 (9th Cir. 1995) (Shoen II). See also F. Marc Schaffel Prods., LLC v. TMZ Prods., Inc., No. CV1001306GHKSSX, 2010 WL 11549388, at *4 (C.D. Cal. Dec. 16, 2010) (citing Shoen II) (“To overcome a valid assertion of the qualified journalist’s privilege, a party must satisfy all three [requirements].”).

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1. Relevance of material to case at bar

To overcome a valid assertion of the reporter’s privilege, the subpoenaing party must show that the requested material is clearly relevant to an important issue in the case. See Shoen II, 48 F.3d at 416 (reversing a contempt citation against a media defendant who refused to produce materials pursuant to a discovery request in the underlying defamation lawsuit, plaintiff failed to establish clear relevance to an important issue in the case since the majority of the alleged libels were made before the interviews of the defendant commenced). The Ninth Circuit has held that “[t]he party seeking disclosure must show actual relevance; a showing of potential relevance will not suffice.” Id.; see also, e.g., Jimenez v. City of Chicago, 733 F. Supp. 2d. 1268, 1273 (W.D. Wash. 2010) (rejecting subpoena when documents sought were “merely collateral to Plaintiff’s lawsuit”) (Jimenez I); Jimenez v. City of Chicago, No. C 10-459MJP, 2010 WL 4678709, at *2 (W.D. Wash. Nov. 12, 2010) (rejecting subpoenaing party’s “attempt to persuade [the court] that they need only satisfy a traditional definition of ‘relevance’ (i.e., evidence that has ‘any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence’)”) (Jimenez II). Even if the information sought contains evidence relevant to a claim, if the evidence would not, without more, establish the claim, actual relevance does not exist. See Wright v. Fred Hutchinson Cancer Research Ctr., 206 F.R.D. 679, 681 (W.D. Wash. 2002) (denying the defendants’ motion to compel in part because the defendants did not exhaust all reasonable alternative sources).

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2. Material unavailable from other sources

The subpoenaing party must show that the material sought is unavailable despite the exhaustion of all reasonable alternative sources. Shoen II, 48 F.3d at 416. At a minimum, this requires a showing that the requested information is not available from another source. Shoen I, 5 F.3d at 1296; id. at 1297 (“compelled disclosure from a journalist must be a last resort after pursuit of other opportunities has failed”); see also, e.g., Harbert v. Priebe, 466 F. Supp. 2d 1214, 1216 (N.D. Cal. 2006) (rejecting subpoena seeking expunged criminal records because those records were still available to the public).

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a. How exhaustive must search be?

The Ninth Circuit has attempted to delineate what constitutes “exhaustion” in a number of cases. A subpoenaing party who fails to take a single deposition before serving a subpoena will not meet the exhaustion requirement. Shoen I, 5 F.3d at 1296-98 (holding that plaintiffs who failed to take a deposition before trying to penetrate the reporter’s shield did not satisfy the threshold requirement of exhaustion because they “failed to exhaust the most patently available other source”); Wright, 206 F.R.D. at 681 (denying the defendants’ motion to compel because the defendants had not sought to depose the plaintiffs and therefore did not exhaust all reasonable alternative sources of the discovery sought); In re Stratosphere Corp. Secs. Litig., 183 F.R.D. 684 (D. Nev. 1999) (denying plaintiffs’ motion to compel the deposition testimony of a nonparty journalist because plaintiffs had not exhausted all other reasonable sources of information sought, had not deposed all of the defendants, and had not asked any defendant specifically about the article in question); Carushka, Inc. v. Premiere Prods., Inc., 17 Med. L. Rep. 2001, at *3 (C.D. Cal. Sep. 1, 1989) (denying motion to compel unpublished information and refusing leave to depose magazine editor because defendants had not exhausted all other means of obtaining the information); F. Marc Schaffel Prods., LLC v. TMZ Prods., Inc., 2010 WL 11549388, at *4 (denying motion to compel because plaintiff had not “establishe[d] that it has sought the requested information from these alternative sources, either by taking their deposition, securing a declaration, serving third-party interrogatories or making some other showing of a good faith effort to obtain discovery”); see also Condit v. Nat’l Enquirer, Inc., 289 F. Supp. 2d 1175, 1180 (E.D. Cal. 2003) (“Plaintiff is not required to depose everyone in the Justice department to locate the source, but plaintiff must make some reasonable attempt to exhaust that alternative source.”).

By contrast, a district court has held that exhaustion was met when numerous depositions were taken prior to the issuing of a subpoena. See Newton v. Nat’l Broad. Co., Inc., 109 F.R.D. 522, 527 (D. Nev. 1985) (denying plaintiff’s motion to compel disclosure of defendant’s confidential sources, because even though the court found plaintiff had effectively exhausted alternative means of learning the identity of the sources by taking numerous depositions, Nevada’s shield law prohibited disclosure).

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

Before disclosure is sought, the subpoenaing party must demonstrate that he or she has exhausted all reasonable alternative means for obtaining the information. See Shoen I, 5 F.3d at 1296. Compelled disclosure from a journalist must be a “last resort after pursuit of other opportunities has failed.” Shoen I, 5 F.3d at 1297 (quoting Carey v. Hume, 492 F.2d 631 (D.C. Cir. 1974)); see also, e.g., Harbert, 466 F. Supp. 2d at 1216 (rejecting motion to compel compliance with subpoena where subpoenaing party relied “only on the purported inadequacy” of interrogatory responses related to the discovery sought and did not show that “they ha[d] made other efforts to obtain [the] information”).

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c. Source is an eyewitness to a crime

At least one court has held that the reporter’s privilege does not excuse reporters from testifying about their eyewitness observations. See, e.g., Dillon v. City & Cty. of San Francisco, 748 F. Supp. 722, 726 (N.D. Cal. 1990) (denying a cameraman’s motion to quash after finding his personal observations were not privileged). The Ninth Circuit has not considered whether a source who was an eyewitness to a crime holds information that is by definition “unavailable” from any other source since it is unique eyewitness testimony.

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3. Balancing of interests

The qualified reporter’s privilege developed by Justice Powell in his Branzburg concurrence requires a judicial balancing of the interests at stake. Branzburg v. Hayes, 408 U.S. 665 (1972) (Powell, J., concurring). If the circumstances of a case show that the privilege applies, the Ninth Circuit requires the court to determine whether, in light of the competing needs and interests of society and the opposing parties, the privilege has been overcome. Shoen I, 5 F.3d at 1292. The test requires that the claimed First Amendment privilege and the opposing need for disclosure be judicially weighed in light of the surrounding facts and a balance struck to determine where lies the paramount interest. See Farr v. Pitchess, 522 F.2d 464, 468–69 (9th Cir. 1975), cert. denied, 427 U.S. 912 (1976) (affirming a district court’s denial of reporter’s habeas corpus petition, holding that the state court had a duty to enter into enforceable nondisclosure orders to protect the due process rights of accused persons). The journalist’s First Amendment interests in avoiding compelled disclosure include: “‘[t]he threat of administrative and judicial intrusion into the newsgathering and editorial process; the disadvantage of a journalist appearing to be an investigative arm of the judicial system or a research tool of government or of a private party; the disincentive to compile and preserve non-broadcast material; the burden on journalists’ time and resources in responding to subpoenas;’ and the possibility that frequent court-compelled disclosure will encourage the destruction of research material soon after publication.” See Wright, 206 F.R.D. at 682 (quoting Shoen I, 5 F.3d at 1292–93).

When deciding whether to enforce a subpoena, courts often consider whether a litigant’s constitutional rights are at issue. See Dillon, 748 F. Supp. at 727 (denying a cameraman’s motion to quash because his personal observations were not privileged, and holding that even if they were privileged, all factors weighed in favor of enforcing the subpoena because “the federal rights sought to be enforced here are substantial ones that rise to a constitutional level”); Farr, 522 F.2d at 469 (affirming a district court’s denial of the reporter’s habeas corpus petition, holding that the state court had a duty to enter into enforceable nondisclosure orders to protect the due process rights of accused persons). Courts also weigh the public’s interest in protecting a reporter’s First Amendment rights against the public’s interest in disclosure. See L.A. Mem’l Coliseum Comm’n v. NFL, 89 F.R.D. 489, 493-94 (C.D. Cal. 1981) (granting the reporters’ motion to quash because the journalist’s privilege protected the reporters’ sources and work product). In Los Angeles Memorial Coliseum Commission, a district court found that in civil cases, the public interest in non-disclosure of a journalist’s confidential sources outweighs the public and private interest in compelled testimony. Id. (quoting Altemose Contr. Co. v. Bldg. and Constr. Trades Council, 443 F. Supp. 489, 491 (E.D. Pa. 1977)).

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4. Subpoena not overbroad or unduly burdensome

Under Federal Rule of Civil Procedure 45(c), on timely motion, the court by which a subpoena was issued shall quash or modify the subpoena if it subjects a person to undue burden. Fed. R. Civ. P. 45(c)(3)(A); L.A. Mem’l Coliseum Comm’n, 89 F.R.D. at 496 (granting the reporters’ motions to quash because the NFL’s subpoenas were “unreasonable and oppressive” within the meaning of Fed. R. Civ. P. 45). Undue burden can be found when a subpoena is facially overbroad. See Williams v. City of Dallas, 178 F.R.D. 103, 109 (N.D. Tex. 1998).

Whether a subpoena imposes an undue burden upon a witness is a case-specific inquiry that turns on such factors as relevance, need of party for documents, breadth of document request, time period covered by request, particularity with which documents are described, and burden imposed. See Am. Elec. Power Co. v. United States, 191 F.R.D. 132, 136 (S.D. Ohio 1999); Nat’l Labor Relations Bd. v. Bakersfield Californian, 128 F.3d 1339, 1343 (9th Cir. 1997) (holding that the NLRB had authority to issue the subpoena because procedural requirements were followed, the subpoenaed evidence was relevant and material to the investigation, and the defendant did not show that the subpoena was unreasonable because it was overbroad or unduly burdensome).  Discovery requests may also constitute an undue burden simply because they seek the production of irrelevant information.  See, e.g., Jimenez I, 733 F. Supp. 2d at 1273.

Federal Rule of Criminal Procedure 17(c) similarly provides that the court, on motion made promptly, may quash or modify a subpoena “if compliance would be unreasonable or oppressive.” Fed. R. Crim. P. 17(c). See also, e.g., United States v. Roberts, 852 F.2d 671 (2d. Cir. 1988) (holding that a subpoena in a criminal case can be invalidated for a variety of reasons, as when it is unduly burdensome, when it violates the right against self-incrimination, or when it calls for privileged documents); United States v. Schneider, 2003 U.S. Dist. LEXIS 27324, at *21 (N.D. Cal. Nov. 18, 2003) (finding that “the government has failed to show that the material sought by the Rule 17(c) subpoena is relevant, specific, and non-cumulative” and that the subpoena should be quashed because it was “unreasonable and oppressive”).

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5. Threat to human life

There is little law in the Ninth Circuit that specifically addresses whether a threat to human life should be weighed in determining whether or not to quash a subpoena. The court in Star Editorial, Inc. v. U.S. District Court, however, did take concerns of retaliation and fear of exposure to harm into account when interpreting California case law. See 7 F.3d at 861 (9th Cir. 1993) (denying defendant tabloid’s request for a writ of mandamus because California law controlled under Federal Rule of Evidence 501, therefore the court applied the balancing test from Mitchell v. Superior Court, 37 Cal. 3d 268 (1984)). The Star Editorial, Inc. court stated, “in some cases, concerns of retaliation or fear of exposure may justify refusing disclosure, even if the party has no other avenue to obtain the information.” 7 F.3d at 861. The court limited this exception to cases where “the information relates to matters of great public importance and the risk of harm to the source is substantial.” Id. (citing Mitchell, 37 Cal. 3d at 634).

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6. Material is not cumulative

In order to overcome a valid assertion of the reporter’s privilege, the subpoenaing party must request material that is non-cumulative. See Shoen II, 48 F.3d at 416 (reversing a contempt citation against a defendant who refused to produce materials pursuant to a discovery request in the underlying defamation lawsuit, finding that the requested material was cumulative because there had been considerable litigation over the alleged statements); Wright, 206 F.R.D. at 682 (denying the defendants’ motion to compel in part because the defendants’ discovery requests sought documents that had already been provided by the plaintiffs and were therefore cumulative); Carushka, 17 Med. L. Rep. 2001, at *3 (denying the motion to compel unpublished information and refusing leave to depose magazine editor because the testimony sought might “prove cumulative in light of the plaintiff’s deposition and trial testimony”); United States v. Schneider, 2003 U.S. Dist. LEXIS 27324, at *19 (granting motion to quash where information sought from journalists was cumulative, noting that “[t]he government fails to demonstrate that this information is unavailable elsewhere, or that the experience of the reporters was somehow unique” to that of other individuals who were present at an event covered by the reporters).

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7. Civil/criminal rules of procedure

Federal Rule of Procedure 45(d)(1) states that a party or attorney responsible for the issuance and service of a subpoena shall take reasonable steps to avoid imposing undue burden or expense on a person subject to that subpoena. Fed. R. Civ. P. 45(d)(1). Accordingly, the court, where compliance with the subpoena is required, must enforce this duty and impose an appropriate sanction—which may include lost earnings and reasonable attorney’s fees—on a party or attorney who fails to comply. Id.

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8. Other elements

The Ninth Circuit does not require that any other elements be met in order to overcome a valid assertion of the reporter’s privilege. See Shoen II, 48 F.3d at 416 (reversing a contempt citation against a defendant who refused to produce materials pursuant to a discovery request in the underlying defamation lawsuit, the court held that a party trying to overcome the reporter’s privilege must show that the material is: (1) unavailable despite exhaustion of all reasonable sources; (2) non-cumulative; and (3) clearly relevant to an important issue in the case). Some district courts, however, have applied a slightly different test when deciding whether the privilege can be overcome. This test requires: (1) that the information is of certain relevance; (2) that there is a compelling reason for the disclosure; (3) that other means of obtaining information have been exhausted; and (4) that the information sought goes to the heart of the seeker’s case. See L.A. Mem’l Coliseum Comm’n, 89 F.R.D. at 494; see also In re Christian Life Ctr. v. U.S. Bankr. Court, 23 B.R. 770, 771 (9th Cir. 1982) (reversing and remanding the case to the trial court with instructions to vacate the contempt citation against the plaintiff because the defendant had not satisfied the standards set forth in Los Angeles Memorial Coliseum Commission).

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C. Waiver or limits to testimony

1. Is the privilege waivable?

Yes.  Like other privileges, the journalist’s privilege may be waived. Michael v. Estate of Kovarbasich, No. 15-00275-MWF, 2015 WL 8750643, at *4 (C.D. Cal. Dec. 11, 2015). And courts have held that “[f]airness requires such a waiver where a journalist has provided information to one litigant but refuses to provide that same information to an opposing party.” Id. For instance, in Ayala v. Ayers, 668 F. Supp. 2d 1248, 1250 (S.D. Cal. 2009), the court found that an author had impliedly waived the journalist’s privilege by producing his manuscript to one side’s counsel. But see Michael, 2015 WL 8750643, at *5 (where a journalist released “non-prejudicial information to both parties” and potentially possessed undisclosed information “that aids one litigant and not the other,” a waiver was not found).

In the Ninth Circuit, the reporter’s privilege belongs to the journalist alone and cannot be waived by anybody other than the journalist. See L.A. Mem’l Coliseum Comm’n, 89 F.R.D. at 494 (granting the reporters’ motion to quash because the journalist’s privilege protected the reporters’ sources and work product despite the fact that the sources voluntarily disclosed their identities).

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2. Elements of waiver

a. Disclosure of confidential source's name

There is no statutory or case law addressing this issue.

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b. Disclosure of non-confidential source's name

There is no statutory or case law addressing this issue.

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c. Partial disclosure of information

Disclosing some information to both parties, while retaining some undisclosed information, did not constitute a waiver in Michael, 2015 WL 8750643, at *5.

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d. Other elements

There is no statutory or case law addressing this issue.

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3. Agreement to partially testify act as waiver?

There is no statutory or case law addressing this issue.

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VII. What constitutes compliance?

A. Newspaper articles

There is no statutory or case law addressing whether newspapers or newspaper articles are self-authenticating.  In In re Stratosphere Corp. Secs. Litig., however, a district court noted that an author and publisher of a magazine article had refused to voluntarily authenticate the contents of the article. 183 F.R.D. 684, 684 (D. Nev. 1999) (denying plaintiffs’ motion to compel the testimony of the magazine author and publisher).

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B. Broadcast materials

There is no statutory or case law addressing this issue.

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C. Testimony vs. affidavits

There is no statutory or case law addressing this issue.

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D. Non-compliance remedies

1. Civil contempt

a. Fines

There is no statutory or case law addressing this issue.

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b. Jail

Jail sentences are limited for civil contempt. Under 28 U.S.C. § 1826, a recalcitrant witness can be confined for the duration of the court proceeding or the duration of the term of the grand jury including extensions, before which such refusal to comply with the court order occurred, but under no circumstances shall the confinement exceed 18 months.

Ronald Watkins, an investigative book author, was incarcerated rather than produce material obtained in the course of interviews for a book he was writing pursuant to 28 U.S.C. § 1826 (1984). Shoen v. Shoen, 48 F.3d 412, 414 (9th Cir. 1995) (Shoen II) (reversing district court’s order holding investigative book author in contempt for refusing to turn over tapes and notes of conversations with a man accused by his sons of defamation because plaintiff had not exhausted other resources, the material sought was cumulative and the material sought was not relevant). Likewise, Josh Wolf went to prison rather than testify and produce, among other things, unpublished portions of his videotape of a demonstration in which an alleged federal crime took place. See In re Grand Jury Subpoena (Wolf v. United States), 201 Fed. App’x 430 (9th Cir. 2006).

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2. Criminal contempt

There is no statutory or case law addressing this issue.

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3. Other remedies

There is no statutory or case law addressing this issue.

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VIII. Appealing

A. Timing

1. Interlocutory appeals

For the Ninth Circuit to have jurisdiction to entertain an appeal, a final district court judgment or appealable interlocutory decision must be rendered. See Goelz, Watts & Batalden, Rutter Group Practice Guide: Federal Ninth Circuit Civil Appellate Practice 1:108 (The Rutter Group 2017) (hereinafter “Rutter”). Generally, a judgment or order is appealable if it represents a district court’s final disposition of either a collateral issue or of all issues in the proceedings. Rutter 2:10. An interlocutory order deciding a critical legal issue is reviewable if the order has been certified for appeal by the district court and the appellate court has accepted jurisdiction. Rutter 2:156. “When a district judge . . . shall be of the opinion that [an] 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 . . . . [t]he Court of Appeals . . . may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order.” 28 U.S.C. § 1292(b).

Generally, there is no immediate appeal from the entry of discovery orders or the issuance of subpoenas. Rutter 2:404. Instead, the right of appeal lies from a contempt adjudication. Id.; see also In re Grand Jury Witness (Salas v. United States), 695 F.2d 359, 361 n.3 (9th Cir. 1982) (stating that the denial of a motion to quash is “not appealable by the party from whom documents or testimony is sought,” but rather the “party subpoenaed must be held in contempt before the issue is ripe for appellate review”). Discovery orders and subpoenas are unripe for review because the resisting party has the option of refusing to comply. Rutter 2:405. If the resisting party refuses to comply and is held in contempt, that party can challenge the validity of the discovery order or subpoena by seeking appellate review of the contempt order. Id.

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2. Expedited appeals

Because the cycle for civil appeals in the Ninth Circuit can sometimes take more than two years, parties needing a faster decision can consider making a motion to expedite the proceedings. Rutter 6:148. In order to expedite, the requesting party must make a showing of “good cause,” which includes, but is not limited to, situations where, absent expedited treatment, irreparable harm may occur or the appeal may become moot. Rutter 6:149. A motion to expedite must also include the status of the transcript preparation and opposing counsel’s position with respect to the motion, and it may also include a proposed briefing schedule and date for argument and submission. Rutter 6:149.1. Because the court’s ability to expedite an appeal is sometimes limited due to calendaring issues, parties needing prompt court action should consider filing a motion for a stay or an injunction pending appeal to preserve the status quo in the district court. Rutter 6:149.2. An attorney could also consider filing both a motion for stay or injunction pending appeal, and, in the alternative, a motion to expedite the appellate proceedings. Id.

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B. Procedure

1. To whom is the appeal made?

A circuit court of appeals has appellate jurisdiction over cases from district courts within its geographical area. Rutter 2:29. The Ninth Circuit is the federal court of review for Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington, as well as Guam and the Northern Mariana Islands. Rutter 1:17. The court of appeals’ decision is subject to further challenge by a petition for rehearing or rehearing en banc, or by petition for writ of certiorari to the U.S. Supreme Court. Rutter 1:10.

Once a contempt citation is levied by a district court, a final judgment has been made and the reporter can appeal directly to the Ninth Circuit Court of Appeals. Rutter 2:404, 2:405; see also, e.g., In re Grand Jury Proceedings (Scarce v. United States), 5 F.3d 397 (9th Cir. 1993), cert. denied, 510 U.S. 1041 (1994); In re Lewis, 517 F.2d 236 (9th Cir. 1975); Bursey v. United States, 466 F.2d 1059 (9th Cir. 1972), superseded on other grounds by statute, as recognized in In re Grand Jury Proceedings (Doe v. United States), 863 F.2d 667 (9th Cir. 1988). When the appellate process is completed, the lower court’s jurisdiction is restored. Rutter 1:11. The case then returns to the district court and the court of appeals’ decision governs any subsequent proceedings. Id.

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2. Stays pending appeal

A party may seek a stay in order to preserve the status quo or obtain injunctive relief pending consideration of the appeal. Rutter 6:260. A stay pending appeal effectively divests the district court’s order of enforceability until the appeal’s disposition. Rutter 6:261. The court employs a balancing test in considering a motion for stay, including: (1) whether the movant is likely to succeed on the merits; (2) whether the movant has shown a likelihood of irreparable harm absent a stay; (3) whether the balance of equities tips in the movant’s favor; and (4) the public interest. Rutter 6:268. The procedural requirements for seeking a stay pending appeal are more arduous than those required for an expedited appeal, which focus only on irreparable harm.

A party seeking a stay pending appeal must ordinarily file the motion in the district court first. Rutter 6:301. A party who elects to first file directly in the Ninth Circuit will have to explain why application to the district court was not practicable. Id. A party should always file in the district court first, even if the party is certain that the district court will deny the motion. Rutter 6:303.

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3. Nature of appeal

Parties may be able to obtain review of nonappealable orders and judgments by filing an extraordinary writ. Rutter 1:78. Such a writ “is used sparingly because it entails interference with the district court’s control of the litigation before it.” Star Editorial, Inc. v. U.S. Dist. Court, 7 F.3d 856, 859 (9th Cir. 1993). The “guideline principles” courts use when considering a writ include whether: (1) the party seeking the writ has no other adequate means, such as direct appeal, to attain relief; (2) the petitioner will be damaged or prejudiced in a way not correctable on appeal; (3) the district court’s order is clearly erroneous as a matter of law; (4) the district court’s order is an oft-repeated error, or manifests a persistent disregard of the federal rules; and (5) the district court’s order raises new and important problems or issues of law of first impression. Id.

Review of a district court decision, however, is most commonly obtained by direct appeal from a final judgment or appealable order. Rutter 1:76. Under certain circumstances, parties may be permitted to obtain review of an otherwise nonappealable order if they are able to secure the permission of both the district and appellate courts. Id.

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4. Standard of review

The Ninth Circuit applies de novo review when considering a district court’s conclusions regarding the interpretation and application of federal law. Rutter 7:253. Since reporter’s privilege cases center around the First Amendment, appellate courts review these cases de novo. In conducting a de novo review, the Ninth Circuit does not defer to the lower court’s ruling, but rather independently considers the matter anew as if no decision had been rendered on the matter below. Rutter 7:225.

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5. Addressing mootness questions

In cases that present “federal constitutional questions affecting fundamental personal liberties,” “[a]djudication of those issues should not be thwarted by resort to narrow interpretations of the doctrines of mootness and justiciability.” Bursey, 466 F.2d at 1088-89 (reversing a contempt order against members of the Black Panther Party who refused to answer questions during a grand jury proceeding, holding that the reporter’s privilege issues were not moot even though the term of the grand jury had expired during the pendency of the appeal). “Postponement of the decisions of the[se] important constitutional issues . . . is not in the interests of the public, the Government, or the witnesses.” Id. at 1089.

The Bursey court ruled that a reporter’s privilege appeal was not moot, despite that the grand jury session had concluded, because “the history of this case . . . strongly suggests that the Government will renew its efforts before another grand jury to obtain the information it sought to compel in the case before us.” Id.

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6. Relief

The Ninth Circuit has the power to vacate a contempt citation. See, e.g., Shoen v. Shoen, 48 F.3d 412, 418 (9th Cir 1995) (vacating a contempt citation against a defendant who refused to produce materials pursuant to a discovery request in the underlying defamation lawsuit); Shoen v. Shoen, 5 F.3d 1289, 1291 (9th Cir. 1993) (reversing and remanding an order that held an investigative reporter in contempt for refusing to divulge information that was gathered for use in his book). When the Ninth Circuit finds that a contempt citation was improperly levied by the district court, it typically reverses the order granting the contempt citation and remands the case back to the district court for consideration of the remaining issues. Id. at 1298.

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IX. Other issues

A. Newsroom searches

The Privacy Protection Act states that it is unlawful for the government, “in connection with [an] investigation or prosecution of a criminal offense,” to search for or seize “any work product materials possessed by a person reasonably believed to have a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication” or “documentary materials, other than work product materials, possessed by a person in connection with” the same purpose. 42 U.S.C. § 2000aa. The remedy is a civil cause of action for damages. See 42 U.S.C. § 2000aa-6(a); Morse v. Regents of Univ. of Calif., 821 F. Supp. 2d 1112, 1120-21 (N.D. Cal. 2011).

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B. Separation orders

There is no statutory or case law addressing this issue.

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C. Third-party subpoenas

There is no statutory or case law addressing this issue.

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D. The source's rights and interests

There is no statutory or case law addressing this issue.

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