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Arizona

Reporters Privilege Compendium

David J. Bodney and Chase A. Bales
Ballard Spahr LLP
1 East Washington Street
Suite 2300
Phoenix, Arizona 85004-2382
Telephone: (602) 798-5400
Facsimile: (602) 798-5595
www.ballardspahr.com

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I. Introduction: History & Background

The Arizona legislature has enacted two statutes that protect reporters from the compelled disclosure of unpublished notes, outtakes and other journalistic work product. First, A.R.S. § 12-2237 (the “Arizona Shield Law”) shields journalists from compelled disclosure of confidential sources. Illustratively, the Arizona Court of Appeals upheld a reporter’s right not to produce the source of confidential information obtained outside of litigation.  Flores v. Cooper Tire & Rubber Co., 218 Ariz. 52, 178 P.3d 1176 (App. 2008).  Similarly, the Arizona Superior Court upheld a reporter's right not to produce to a grand jury notes and tape-recorded conversations with an at-large serial arsonist. In re Hibberd, 262 GJ 75, Feb. 26, 2001. While the unpublished decision enforced the Arizona Shield Law, the statute has been construed to apply to confidential information only.

Second, A.R.S. § 12-2214 (the “Arizona Media Subpoena Law”) imposes a number of requirements on subpoenas directed to journalists and news organizations. Under the statute, a media subpoena is invalid unless accompanied by an affidavit setting forth six specific averments. The statute applies to civil and criminal subpoenas, but not grand jury subpoenas. A.R.S. § 12-2214(A), (D). It applies to confidential and non-confidential information. Among other things, it forces litigants to describe all efforts they have taken to secure the requested information elsewhere. Although there are but a few authorities interpreting either the Arizona Shield Law or the Arizona Media Subpoena Law, the Arizona Court of Appeals’ recent decision in Phoenix Newspapers, Inc. v. Reinstein, 240 Ariz. 442, 381 P.3d 236 (App. 2016), was a watershed event for news organizations operating in Arizona.  That case not only upheld a strict application of the Media Subpoena Law, but also recognized that its statutory protections include a qualified journalist’s privilege under the First Amendment.

In addition to these statutory safeguards, , reporters in the Ninth Circuit enjoy a strong First Amendment privilege against third-party discovery of published and non-published journalistic work product. See Shoen v. Shoen, 48 F.3d 412 (9th Cir. 1995). The First Amendment privilege applies in civil and criminal proceedings. Id.

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II. Authority for and source of the right

A. Shield law statute

Arizona has two statutes that protect reporters from third-party discovery. The Arizona Shield Law protects against compelled disclosure of information that could identify a confidential source. Entitled “Reporter and informant,” the statute states:

A person engaged in newspaper, radio, television or reportorial work, or connected with or employed by a newspaper, radio or television station, shall not be compelled to testify or disclose in a legal proceeding or trial or any proceeding whatever, or before any jury, inquisitorial body or commission, or before a committee of the legislature, or elsewhere, the source of information procured or obtained by him for publication in a newspaper or for broadcasting over a radio or television station with which he was associated or by which he is employed.

A.R.S. § 12-2237. The statute was enacted in 1937, and has remained largely unchanged. Matera v. Superior Court, 170 Ariz. 446, 449, 825 P.2d 971, 974 (Ct. App. 1992). It was re-codified under its own section in a 1960 amendment that broadened the scope of the privilege to cover broadcast as well as print media. Matera, 170 Ariz. at 449 n.2, 825 P.2d at 974 n.2.

In addition to the Arizona Shield Law, the Arizona Media Subpoena Law imposes a number of requirements on litigants seeking to compel discovery from the press. The Arizona Media Subpoena Law states:

  1. A subpoena for the attendance of a witness or for production of documentary evidence issued in a civil or criminal proceeding and directed to a person engaged in gathering, reporting, writing, editing, publishing or broadcasting news to the public, and which relates to matters within these news activities, shall have attached to it an affidavit of a person with a direct interest in the matters sought which states all of the following:
  2. Each item of documentary and evidentiary information sought from the person subpoenaed.
  3. That the affiant or his representative has attempted to obtain each item of information from all other available sources, specifying which items the affiant has been unable to obtain.
  4. The identity of the other sources from which the affiant or his representative has attempted to obtain the information.
  5. That the information sought is relevant and material to the affiant's cause of action or defense.
  6. That the information sought is not protected by any lawful privilege.
  7. That the subpoena is not intended to interfere with the gathering, writing, editing, publishing, broadcasting and disseminating of news to the public as protected by the first amendment, Constitution of the United States, or by article II, section 6, Constitution of Arizona.
  8. A subpoena served on a person described in subsection A without the required affidavit attached to it has no effect.
  9. If the affidavit is controverted or a motion to quash the subpoena or for a protective order is filed by the person subpoenaed, the command of the subpoena shall be postponed until a hearing is held and the court enters an order. After the hearing the command of the subpoena shall be carried out in accordance with the order of this court.
  10. This section does not apply to a subpoena for the attendance of a witness or the production of documentary evidence issued by or on behalf of a grand jury or a magistrate during an investigative criminal proceeding.

A.R.S. § 12-2214.

When the committees of the Senate and House of Representatives were contemplating the Arizona Media Subpoena Law, the only testifying witnesses were employees of Arizona's daily newspapers and television stations. Matera, 170 Ariz. at 448, 825 P.2d at 973. In Matera, the court held that A.R.S. § 12-2214 was intended to apply to persons who gather and disseminate news on a regular basis – not to the author of a work of non-fiction.

The Matera court observed that "the purpose of the Media Subpoena Law is to protect members of the media from 'fishing expeditions' that would interfere with the ongoing business of gathering and reporting news to the public. The statute balances the needs of media personnel against the needs of litigants, tipping the balance in favor of interference with newsgathering only upon a showing of need, proven by affidavit." 170 Ariz. at 448, 825 P.2d at 973. The court differentiated the statute from the Arizona Shield Law, and held that "the statute was not designed to protect the information collected, but rather was designed to aid a specific class of persons – members of the news media – in performing their jobs free from the inconvenience of being used as surrogate investigators for private litigants." Id. See also Bartlett v. Superior Court, 150 Ariz. 178, 183, 722 P.2d 346, 351 (Ct. App. 1986) ("[I]t was the intention of the legislature in enacting A.R.S. § 12-2214 to protect the media from being turned into 'litigation consultants' by lawyers who, though the use of a subpoena, are able to enlist the aid of the media in preparing their cases.")

The most recent development concerning the interpretation of the Media Subpoena Law occurred in 2016, when the Arizona Court of Appeals issued its decision in Phoenix Newspapers, Inc. v. Reinstein, 240 Ariz. 442, 381 P.3d 236 (App. 2016). That case involved a subpoena to a reporter demanding that he produce notes of interviews with the surviving victim of a brutal assault on two clergymen.  Id. at 444, 381 P.3d at 238. Although the subpoena was supported by an affidavit of counsel, the reporter challenged its sufficiency under the statute, arguing that it failed to satisfy the exhaustion requirement and that the information was protected by statute and privileged under the First Amendment.

After discussing the scope and requirements of the Media Subpoena Law, the court concluded that the requesting party had failed to satisfy the exhaustion requirement because he never attempted to interview the surviving victim.  Id.  at 446-47, 381 P.3d at 240-41.  The Court of Appeals rejected the requestor’s assertion that a new interview with the victim would not yield the same information because the prior interview occurred more than a year earlier.  Id.  Ultimately, the Court found that the information contained in the reporter’s notes were subject to the qualified privilege afforded under the First Amendment.  Id. at 448-49, 381 P.3d at 242-43.

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B. State constitutional provision

The Arizona Constitution does not have an express shield law provision, and one has not been implied from its free speech provision. That provision, Article II, § 6 of the Arizona Constitution, states: "Every person may freely speak, write, and publish on all subjects, being responsible for the abuse of that right." On occasion, the Arizona Supreme Court has given broader scope to Article II, § 6 than to the First Amendment. See, e.g., Mountain States Telephone and Telegraph Co. v. Ariz. Corp. Commission, 160 Ariz. 350, 354, 773 P.2d 455, 469 (1989) (striking down under Article II, § 6 an administrative order that required a telephone company to limit access to "Scooplines" – the precursor to 1-900 numbers – only to customers who had pre-subscribed for such services); Phoenix Newspapers v. Superior Court, 101 Ariz. 257, 259, 418 P.2d 594, 596 (1966) (Article II, § 6 protected reporters from contempt proceedings arising from their violation of a gag order in a criminal murder case; "[t]he words of the Arizona Constitution are too plain for equivocation. The right of every person to freely speak, write, and publish may not be limited."). The Court has instructed that when both the Arizona and U.S. Constitutions apply to the facts of a case, and Article II of the Arizona Constitution is sufficient to resolve the dispute, there is no need to "reach the further question presented concerning the application of the First and Fourteenth Amendments." Phoenix Newspapers, 101 Ariz. at 259, 418 P.2d 596.

Nevertheless, no reported decision has applied Article II to a dispute involving the reporter's privilege.  Indeed, in Reinstein, the Court of Appeals declined to consider this issue.  240 Ariz. at 448 n.2, 381 P.3d at 242 n.2 (“But because we resolve this issue on the narrow ground of the First Amendment, we need not reach the Arizona Constitution.”).

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C. Federal constitutional provision

In Bartlett, the Arizona Court of Appeals recognized a qualified First Amendment privilege for the protection of confidential information. Based on its analysis of Branzburg v. Hayes, 408 U.S. 665 (1972), the court wrote: "[T]he claim of privilege depends, in the first instance, upon the existence of a confidential relationship such that compliance with a subpoena would either result in disclosure of confidential information or sources or would seriously interfere with the news gathering and editorial process." 150 Ariz. at 182, 722 P.2d at 350. However, the court held that the constitutional privilege did not apply to a videotape copy of a news report that had been broadcast to the public and reviewed on request by counsel for the party who subpoenaed the tape. Id.

In Matera, the court agreed with Bartlett's "assessment of the reporter's privilege as it exists in Arizona." 170 Ariz. at 450, 825 P.2d at 975. It then held that information gathered by an author working on a book about an undercover informant who participated in a "sting" operation was not protected because disclosure would not have revealed confidential sources or information, or impeded the process of newsgathering. Id. The court wrote: "Matera has not, and cannot, claim that the subpoena in this case would cause him to reveal confidential sources or information, nor would the subpoena impede the gathering of information. It is only those limited situations that are protected by Arizona's qualified reporter's privilege as codified [in the Arizona Shield Law]." Id.

After Bartlett and Matera were decided, the Ninth Circuit recognized that reporters in this Circuit have a strong qualified privilege under the First Amendment that protects both confidential and non-confidential journalistic work product. In Shoen v. Shoen, 48 F.3d 412 (9th Cir. 1995), the court held that a litigant seeking unpublished information must show that the material is: "(1) unavailable despite exhaustion of all reasonable alternative sources; (2) non-cumulative; and (3) clearly relevant to an important issue in the case." Shoen, 48 F.3d at 416. The privilege applies in civil and criminal cases, and evidence satisfying each prong of the test is necessary to compel production. Id. The Ninth Circuit has stated that the journalist's privilege cannot easily be defeated: "'[I]n the ordinary case the civil litigant's interest in disclosure should yield to the journalist's privilege. Indeed, if the privilege does not prevail in all but the most exceptional cases, its value will be substantially diminished.'" Id. (quoting Zerilli v. Smith, 656 F.2d 705 (D.C. Cir. 1981)).

After the Ninth Circuit decided Shoen, the Arizona Court of Appeals in the Reinstein decision tracked the Ninth Circuit’s reasoning and found that the First Amendment provides a qualified privilege for journalists in Arizona state court proceedings.  240 Ariz. at 448-49, 381 P.3d at 242-43.

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D. Other sources

We have found no other state-law based sources of the reporter's privilege in Arizona.

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III. Scope of protection

A. Generally

By its terms, the Arizona Shield Law, codified in A.R.S. § 12-2237, applies to "the source of information procured or obtained . . . for publication in a newspaper or for broadcasting over a radio or television station . . . ." It applies broadly to civil, criminal and grand jury matters, legislative proceedings, "or elsewhere." A.R.S. § 12-2237. Moreover, the separate Arizona Media Subpoena Law confers a number of procedural protections on the press regarding subpoenas for confidential and non-confidential information. Finally, at least with respect to the Media Subpoena Law, the Arizona Court of Appeals has recognized a qualified First Amendment privilege for reporters in Arizona.  Further, the Ninth Circuit has endorsed a strong First Amendment privilege for reporters in this Circuit.

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B. Absolute or qualified privilege

The Arizona Shield Law provides an absolute privilege for confidential information or sources. See Matera, 170 Ariz. at 450, 825 P.2d at 975 ("application of the privilege is appropriate only when the requisite confidentiality is present").

The Arizona Media Subpoena Law provides certain procedural protections to news organizations and reporters who are the subject of subpoenas for confidential and non-confidential information. Historically, the Arizona Media Subpoena Law provided little substantive protection. Matera, 170 Ariz. at 448, 825 P.2d at 973 ("The statute is not a 'shield' law" and "was not designed to protect the information collected, but rather was to designed to aid a specific class of persons -- members of the media -- in performing their jobs free from the inconvenience of being used as surrogate investigators for private litigants.").  Following Reinstein, however, the Media Subpoena Law has gained significant strength, as the Court of Appeals there found that a journalist is entitled to a qualified First Amendment privilege.  240 Ariz. at 448-49, 381 P.3d at 242-43.

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C. Type of case

1. Civil

On its face, the Arizona Shield Law makes no distinction between civil and criminal proceedings. Rather, the statute applies "in a legal proceeding or trial or any proceeding whatever, or before any jury, inquisitorial body or commission, or before a committee of the legislature, or elsewhere . . . ." A.R.S. § 12-2237.  See also Cooper Tire, 218 Ariz. at 62, 178 P.3d at 1186 (“If confidential source information cannot be disclosed in grand jury proceedings, then it surely cannot be shared with opposing counsel in a civil suit under an attorney's-eyes only order.”).

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2. Criminal

The Arizona Shield Law applies to criminal proceedings. A.R.S. § 12-2237. The Arizona Media Subpoena Law applies to criminal proceedings as well. A.R.S. § 12-2214.

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3. Grand jury

The Arizona Shield Law applies to proceedings "before any jury, inquisitorial body or commission . . . ." A.R.S. § 12-2237. In In re Hibberd, an unpublished decision, the Arizona Superior Court reaffirmed the statute's absolute protection for confidential source information in grand jury proceedings. In that case, several homes under construction in Phoenix had been destroyed by fires set by an eco-terrorist/serial arsonist. A grand jury issued a subpoena to James Hibberd, a reporter for Phoenix New Times, a local weekly, requiring him to produce tape-recorded conversations with the alleged arsonist, as well as unpublished notes and various electronic and computer data. The grand jury sought this information to identify the person who represented himself to the reporter to be the arsonist. The Arizona Superior Court granted the New Times and Hibberd's Motion to Quash.

While Hibberd had made several arguments under the First Amendment and the Arizona Constitution, the court found the Arizona Shield Law dispositive. The court rejected the assertion that the statute did not apply where the confidential source was an at-large criminal. It wrote: "This is not a close question. The state argues that sound public policy requires that this court read the legislature's plain words to exclude a person such as the arsonist from the operation of Arizona's legislatively-enacted press shield law. . . . It is not for the judicial branch to modify the plain language of a 64 year old statute because the court may believe that something else better serves the public." In re Hibberd, 262 GJ 75 (Feb. 26, 2001). Nevertheless, the court chastised Hibberd and New Times for "choos[ing] to give a public platform to a criminal, a criminal who remains on the loose and who remains a threat to the general public." Id. [The court's Minute Entry is posted at http://www.superiorcourt.maricopa.gov/ publicInfo/rulings/rulingsReaditem.asp?autonumb=88]

The Arizona Media Subpoena Law does not apply to grand jury proceedings. A.R.S. § 12-2214(D).

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D. Information and/or identity of source

The Arizona Shield Law protects the identity of confidential sources, including information that may be used to identify such sources. Cooper Tire, 218 Ariz. at 58-59, 178 P.3d at 1182-83 (finding that statute applied where subpoena would have forced a reporter to disclose the source of confidential information); Matera, 170 Ariz. at 450, 825 P.2d at 975 (statute applies where a subpoena would cause a journalist "to reveal confidential sources of information [or] would impede the gathering of information"); In re Hibberd, 262 GJ 75 (quashing subpoena for tape recordings, notes, computer and other data that could be used to identify a confidential source).

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E. Confidential and/or nonconfidential information

The Arizona Shield Law provides an absolute privilege for confidential information or sources. Matera, 170 Ariz. at 450, 825 P.2d at 975. The Arizona Supreme Court has suggested that the statute provides no protection, absolute or qualified, for non-confidential information. Moody, 208 Ariz. at 458, 94 P.3d at 1153.

The Arizona Media Subpoena Law provides certain procedural protections to news organizations and reporters who are the subject of subpoenas for confidential or non-confidential information. However, at least one court has held that the Arizona Media Subpoena Law is not itself a substantive privilege. Matera, 170 Ariz. at 448, 825 P.2d at 973.

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F. Published and/or non-published material

On its face, the Arizona Shield Law does not differentiate between published and non-published material. Nevertheless, in Bartlett, the intermediate appellate court held that a news report that had been broadcast publicly and shown to the requesting party was not subject to the privilege. 150 Ariz. at 182, 722 P.2d at 350.

The Arizona Media Subpoena Law applies to subpoenas both for published and unpublished material. A person seeking published information from a news organization must aver that he or she has attempted to obtain each item of information sought from "all other available sources, specifying which items the affiant has been unable to obtain." A.R.S. § 12-2214(A)(2). Moreover, the affiant must specify "the identity of the other sources from which the affiant or his representative has attempted to obtain the information." A.R.S. § 12-2214(A)(3). In Arizona, broadcast news stories are often obtainable from third-party commercial news clipping services.

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G. Reporter's personal observations

The Arizona Shield Law does not expressly protect reporters who personally witness criminal activity. While this issue has not been addressed in reported Arizona cases, Bartlett suggests that direct, material evidence of a crime is not protected. In Bartlett, the court ordered production of a television news report that captured images of a car accident scene just moments after the accident had occurred, including footage of the automobile in the middle of the intersection with skid marks, and pictures of the victim being treated by paramedics. The videotape showed measurable skid marks not otherwise recorded or measured at the time of the accident. The trial court found that the videotape "would greatly aid a trier of fact . . . in assessing what the severity of the incident was." 150 Ariz. at 181, 722 P.2d at 349. The Court of Appeals agreed. 150 Ariz. at 184, 722 P.2d at 352.

In an unpublished decision, In re Hibberd, the Arizona Superior Court stated that a reporter's observation of a crime is not protected under the Arizona Shield Law. The court recognized that a reporter "would properly be denied the protection of § 12-2237 had he, for example, accompanied the arsonist to an arson. . . . Under those hypothetical circumstances, Hibberd would be the source of information for his reporting and no privilege would attach." In re Hibberd, 262 GJ 75, Feb. 26, 2001.

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H. Media as a party

There is no statute or case law addressing the status of the reporter's privilege where the media is a plaintiff or defendant.

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I. Defamation actions

There is no statutory or case law addressing this issue.

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IV. Who is covered

In Matera, the Arizona Court of Appeals held that the Arizona Media Subpoena Law applies only "to persons who gather and disseminate news on an ongoing basis as part of the organized, traditional, mass media." 170 Ariz. at 448, 825 P.2d at 973. Accordingly, the court ruled that the statute did not apply to an author involved in writing a book about an undercover figure that led to criminal prosecution of several politicians, where the author was not actively and regularly engaged in gathering and reporting the news. 170 Ariz. at 448, 825 P.2d at 973.

However, the Matera court went on to consider the application of the Arizona Shield Law to the author and did not hold the shield statute inapplicable because of the author's status. Instead, the court found that the statute did not protect the author because he failed to demonstrate that complying with the subpoena would result in the disclosure of confidential sources of information. 170 Ariz. at 450, 825 P.2d at 975; see also Reinstein, 240 Ariz. at 447-48, 381 P.3d at 241-42 (finding that Media Shield Law did not protect reporter where subpoena did not “seek disclosure of a confidential source.”).

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A. Statutory and case law definitions

1. Traditional news gatherers

a. Reporter

The Arizona Shield Law expressly applies to "[a] person engaged in newspaper, radio, television or reportorial work, or connected with or employed by a newspaper, radio or television station," where the person is compelled to testify or disclose "the source of information procured or obtained by him for publication in a newspaper or for broadcasting over a radio or television station with which he was associated or by which he is employed." A.R.S. § 12-2237.

The statute does not define the term "reporter," and there is no statutory or case law regarding whether the statute applies to full-time reporters only, or to part-time reporters as well. A freelance journalist probably would be covered by the statute, so long as the subpoena in question requires disclosure of "the source of information procured or obtained by him for publication in a newspaper or for broadcasting over a radio or television station with which he was associated or by which he is employed." Id.

The Arizona Media Subpoena Law covers "person[s] engaged in gathering, reporting, writing, editing, publishing or broadcasting news to the public . . . ." A.R.S. § 12-2214(A). However, under Matera, there is a significant risk that a freelance journalist not regularly employed by a traditional news organization might not enjoy the protection of the statute. In Matera, the court stated: "[T]he statute's application is limited to persons engaged in the gathering and dissemination of news to the public on a regular basis. . . . The statute balances the needs of media personnel against the needs of litigants, tipping the balance in favor of interference with the process of newsgathering only upon a showing of need, proven by affidavit. . . . [T]he statute was not designed to protect the information collected, but rather was designed to aid a specific class – members of the media – in performing their jobs free from the inconvenience of being used as surrogate investigators for private litigants." Matera, 170 Ariz. at 448, 825 P.2d at 974. The Arizona Supreme Court has not addressed this issue.

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b. Editor

Neither the Arizona Shield Law nor the Arizona Media Subpoena Law defines the term "editor."

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c. News

"News" has been defined as "a report of recent events; material reported in a newspaper or news periodical or on a newscast; matter that is newsworthy." Matera, 170 Ariz. at 448, 825 P.2d at 973 (citing to Webster's Ninth New Collegiate Dictionary 796 (1984)). Applying this definition to A.R.S. § 12-2214, the court determined that defendant Matera "was not actively engaged in the gathering, reporting, etc. of 'news'" when he gathered information for the sole purpose of publishing one book about an undercover "sting" participant. Id.

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d. Photo journalist

A.R.S. §§ 12-2214 and 12-2237 do not include a definition of "photo journalist," and no reported decision addresses the issue in Arizona. In Bartlett, the court held that no privilege protected a television station from producing a videotape of an automobile accident victim at the accident scene. The court approved of the lower court's reasoning that "one picture is worth a thousand words." Bartlett, 150 Ariz. at 184, 722 P.2d at 352. If the requisite element of confidentiality had been met, however, the privilege might well have applied to protect disclosure of the videotape. See id. 150 Ariz. at 183, 722 P.2d at 351.

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e. News organization/medium

The Arizona Shield Law expressly applies to "newspaper, radio [and] television" media. A.R.S. § 12-2237. The Arizona Media Subpoena Law includes that media, but sweeps more broadly. See A.R.S. § 12-2214(A) (statute applies to persons "engaged in gathering, reporting, writing, editing, publishing or broadcasting news to the public").

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2. Others, including non-traditional news gatherers

See Section IV, introductory comments.

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B. Whose privilege is it?

The plain language of A.R.S. § 12-2237 suggests that the privilege belongs the reporter, not the source.  In Cooper Tire, the Arizona Court of Appeals confirmed  that “[t]he statutory privilege belongs to the reporter.”  218 Ariz. at 58, 178 P.3d at 1182.

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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 regarding the timing of a subpoena directed to a member of the news media, or the manner of service. Ariz. R. Civ. P. 45, which applies to subpoenas generally, provides that "[a] party or an attorney responsible for the service of a subpoena shall take reasonable steps to avoid imposing undue burden or expense on a person subject to that subpoena." Ariz. R. Civ. P. 45(e)(1). Moreover, Ariz. R. Civ. P. 45(e)(2)(A)(ii) provides that a superior court must, upon a timely motion, quash or modify a subpoena if, inter alia, it "fails to allow reasonable time for compliance . . . ."

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2. Deposit of security

Likewise, there are no special security requirements for media subpoenas. Instead, such subpoenas are subject to the rules regarding witness fees and mileage that apply to subpoenas generally. See Ariz. R. Civ. P. 45(d)(1).

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3. Filing of affidavit

Except in the grand jury context, the Arizona Media Subpoena Law requires that an affidavit setting forth six specific averments must accompany the subpoena. The affidavit must identify each item of information sought, attest that the material sought is relevant and material to a legal action, and state that attempts to obtain the information from alternative sources have failed. The alternative sources must be identified. Moreover, the affidavit must attest that the information sought is not protected by any lawful privilege. Finally, the affidavit must aver that the subpoena "is not intended to interfere with the gathering, writing, editing, publishing, broadcasting and disseminating of news to the public as protected by" the First Amendment and the Arizona Constitution. A.R.S. § 12-2214(A). The affidavit does not need to be filed, but it must be served with the subpoena. A.R.S. § 12-2214(B).

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4. Judicial approval

A judge or magistrate need not approve a subpoena in any particular circumstances before a party can serve it. However, if the affidavit accompanying the subpoena "is controverted or a motion to quash the subpoena or for a protective order is filed by the person subpoenaed, the command of the subpoena shall be postponed until a hearing is held and an order is entered by the court." A.R.S. § 12-2214(C).

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5. Service of police or other administrative subpoenas

There are no special rules regarding the use and service of other administrative subpoenas, such as police or fire investigation subpoenas. The Arizona Media Subpoena Law does not apply to grand jury subpoenas. A.R.S. § 12-2214(D).

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B. How to Quash

1. Contact other party first

The Arizona Rules of Civil Procedure require good-faith consultation before filing a discovery motion. See Ariz. R. Civ. P. 26(g):   (“Any discovery or disclosure motion must attach a good faith consultation certificate complying with Rule 7.1(h).”).

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2. Filing an objection or a notice of intent

Ariz. R. Civ. P. 45(c)(5)(A)(ii) states that, if a subpoenaed party intends to object to the production, such objection must be “served on the party or attorney serving the subpoena before the time specified for compliance or within 14 days after the subpoena is served, whichever is earlier.” If such an objection is made, the objecting person “need not comply with those parts of the subpoena that are the subject of the objection, unless ordered to do so by the issuing court.”  See Ariz. R. Civ. P. 45(c)(5)(B)(i).  The party issuing the subpoena may then move under Rule 37(a) for compliance with the subpoena. An objection under this Rule need not be filed; service is sufficient.

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3. File a motion to quash

a. Which court?

Ordinarily, the motion to quash or for protective order is filed in the same court that is hearing the case at issue. If a grand jury subpoena is involved, the court may open a miscellaneous action (designated with the number of the grand jury that issued the subpoena) in connection with a motion to quash or for protective order.

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b. Motion to compel

A media party can shift the burden of seeking judicial intervention onto the discovering party by serving written objections within the time specified in Ariz. R. Civ. P. 45(c)(5)(A)(ii).

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c. Timing

Under Ariz. R. Civ. P. 45(e)(2)(D), “[a] motion to quash or modify a subpoena must be filed before the time specified for compliance or within 14 days after the subpoena is served, whichever is earlier.”

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d. Language

The language of a motion to quash or for protective order will necessarily vary from case to case. Nevertheless, if the subpoenaing party has not made any of the six averments required by the Arizona Media Subpoena Law, the motion should explain the affidavit's deficiencies.

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e. Additional material

No additional materials are mandated by law.

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4. In camera review

a. Necessity

No statutory or case law addresses the issue of in camera review in the context of moving to quash a media subpoena. In Cooper Tire, 218 Ariz. at 55-56, 178 P.3d at 1179-80, the Court of Appeals noted the lower court’s use of in camera review to decide an issue under the Media Shield Law but did not address the issue specifically. In other contexts, Arizona courts have endorsed in camera review as an efficient means of resolving discovery and other disputes. See, e.g., Carlson v. Pima County, 141 Ariz. 487, 491, 687 P.2d 1242, 1246 (1984) (courts may review in camera public records that government officials have refused to disclose under A.R.S. § 39-121 et seq. (the "Arizona Public Records Law")).

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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

Under the Arizona Rules of Civil Procedure, the subpoenaing party has ten judicial days to respond to a motion to quash or for protective order, plus five calendar days if the motion was served by mail. Ariz. R. Civ. P. 6(c), 7.1(a). The moving party has five judicial days to serve and file a reply (plus five calendar days, if the response was mailed).  Id.

The Arizona Rules of Criminal Procedure provide that a party has 10 judicial days to file and serve a response to a motion, and the moving party has three judicial days in which to file and serve a reply. Ariz. R. Crim. P. 1.9(b). Five calendar days may be added for service by mail. Ariz. R. Crim. P. 1.3(a)(5).

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6. Amicus briefs

Amicus briefs are commonly accepted by Arizona's appellate courts, and the procedure for seeking leave to file an amicus brief is set forth in Ariz. R. Civ. App. P. 16. No Arizona organizations regularly file amicus briefs opposing media subpoenas.

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VI. Substantive law on contesting subpoenas

A. Burden, standard of proof

The party serving a subpoena on a newsperson has the initial burden of demonstrating compliance with requirements set forth in A.R.S. § 12-2214(A)(1)-(6), the statute governing subpoenas. The party seeking production must identify with reasonable detail in the required affidavit the information requested, the efforts made to acquire it, and from what sources. Id. Once a party serving a subpoena on a newsperson has complied with A.R.S. § 12-2214(a), the burden shifts to the party being served to controvert the allegations of the affidavit; it is not sufficient to claim that the same information can be obtained elsewhere. Bartlett, 150 Ariz. at 183, 722 P.2d at 351 (citing A.R.S. § 12-2214).  The subject of the subpoena may “controvert the allegations of the affidavit and set forth the bases therefore by either filing a controverting affidavit or moving to quash the subpoena.”  Reinstein, 240 Ariz. at 446, 381 P.3d at 240.

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B. Elements

1. Relevance of material to case at bar

The purpose of A.R.S. § 12-2214 is to protect the media from being used as "litigation consultants" by lawyers who use subpoenas to recruit the assistance of the media in making their cases. Bartlett, 150 Ariz. at 183, 722 P.2d at 351. To carry out that objective, the statute compels the party seeking the information to demonstrate "[t]hat the information sought is relevant and material to the affiant's cause of action or defense." A.R.S. § 12-2214(A)(4) (emphasis added). Moreover, the First Amendment privilege recognized in Reinstein, 240 Ariz. 442, 381 P.3d 236, and Shoen v. Shoen, 48 F.3d 412 (9th Cir. 1995), requires an even stronger showing of need.

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2. Material unavailable from other sources

See Section VI.A. The party seeking production must identify with reasonable detail the efforts made to acquire from other sources the information sought.

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a. How exhaustive must search be?

The requesting party must identify all other sources from which he or she attempted to obtain the information sought. A.R.S. § 12-2214(A)(3).

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

A.R.S. § 12-2214 does not require the presentation to the court for review of every source investigated. Bartlett, 150 Ariz. at 183, 722 P.2d at 351. For example, in Bartlett, the Court of Appeals explained that the party seeking enforcement of a subpoena served on a television station for production of a videotaped recording was not required to submit for court inspection every deposition obtained from other sources. Id. Under A.R.S. § 12-2214, the court determined that it was sufficient for counsel to avow that the witnesses had actually been deposed and the videotapes reviewed and that neither offered the same information contained on the videotape at issue. Id. If the television station, the party being served, was unconvinced by that avowal, it had the burden to review the depositions and videotapes for purposes of controverting the allegations set forth in the supporting subpoena. Id. In Reinstein, the Court of Appeals found that the requesting party had failed to exhaust other sources by failing to seek an independent interview with the source of the alleged statements.  240 Ariz. at 447, 381 P.3d at 241.

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c. Source is an eyewitness to a crime

There is no statutory or case law addressing this issue directly. However, Bartlett suggests that direct, material evidence of a crime, if not available elsewhere, can be a unique source of evidence subject to subpoena. In Bartlett, the court ordered production of a television news report that captured images of a car accident scene just moments after the accident had occurred, including footage of the automobile in the middle of the intersection with skid marks, and pictures of the victim being treated by paramedics. The videotape showed measurable skid marks not otherwise recorded or measured at the time of the accident. The trial court found that the videotape "would greatly aid a trier of fact . . . in assessing what the severity of the incident was." 150 Ariz. at 181, 722 P.2d at 349. The Court of Appeals agreed. 150 Ariz. at 184, 722 P.2d at 352.

The Arizona Superior Court has stated that a reporter's direct observation of a crime is not protected under the Arizona Shield Law. In re Hibberd, 262 GJ 75, Feb. 26, 2001.

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3. Balancing of interests

The Arizona Shield Law does not require a judicial balancing of interests to determine whether it applies to protect information sought by a subpoena. Rather, if the subpoena would require disclosure of a confidential source or confidential information, the privilege applies and the subpoena must be quashed. A.R.S. § 12-2237; In re Hibberd, 262 GJ 75, Feb. 26, 2001.

In contrast, the Arizona Media Subpoena Law balances the needs of newspersons against the needs of litigants in obtaining information vital to the presentation or defense of their case. Matera, 170 Ariz. at 448, 825 P.2d at 973. "The statute balances the needs of media personnel against the needs of litigants, tipping the balance in favor of interference with the process of newsgathering only upon a showing of need, proven by affidavit." Id. In Bartlett, the court balanced the need in favor of the requesting party, which could not obtain elsewhere evidence relating to the condition of a car accident victim and scene just moments after the accident. Bartlett, 150 Ariz. at 183, 722 P.2d at 351. More recently, in Reinstein, the court balanced the requesting party’s need against the reporter’s privilege and concluded that the requestor had failed to satisfy his burden. 240 Ariz. at 450, 381 P.3d at 244.

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4. Subpoena not overbroad or unduly burdensome

Arizona law provides that third-party subpoenas cannot be overbroad or unduly burdensome. Under Rule 45 of the Arizona Rules of Civil Procedure, a party or an attorney serving a subpoena "shall take reasonable steps to avoid imposing undue burden or expense on a person subject to that subpoena." Ariz. R. Civ. P. 45(e)(1). The Arizona Media Subpoena Law goes further, and imposes several requirements on the subpoenaing party designed to narrow the scope of the material sought. A.R.S. § 12-2214. The purpose of the statute is to protect members of the media from onerous subpoenas and "broad discovery 'fishing expeditions'" that would unduly interfere with the continuing process of collecting and reporting news to the public. Matera, 170 Ariz. at 448, 825 P.2d at 973; see also Reinstein, 240 Ariz. at 446, 381 P.3d at 240.

In addition to other remedies available for improper subpoenas, A.R.S. § 12-349(A) states that the court "shall assess reasonable attorney fees, expenses, and, at the court's discretion, double damages of not to exceed five thousand dollars against an attorney or party [who] . . . [e]ngages in abuse of discovery."

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5. Threat to human life

There is no statutory or reported case law addressing this issue. However, in In re Hibberd, the Arizona Superior Court granted a motion to quash a subpoena even though the subpoenaed materials arguably would have enabled law enforcement to identify an at-large serial arsonist posing a threat to human life. In re Hibberd, 262 GJ 75, Feb. 26, 2001.

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6. Material is not cumulative

The Arizona Media Subpoena Law requires the subpoenaing party to attest that "the information sought is not protected by any lawful privilege." A.R.S. § 12-2214(A)(5). Under the First Amendment privilege recognized in both Reinstein, 240 Ariz. at 449-50, 381 P.3d at 243-44, and Shoen v. Shoen, 48 F.3d 412, 416 (9th Cir. 1995), the evidence must show that the requested material is "(1) unavailable despite exhaustion of all reasonable alternatives sources; (2) non-cumulative; and (3) clearly relevant to an important issue in the case." Shoen, 48 F.3d at 416; Reinstein, 240 Ariz. at 449-50, 381 P.3d at 243-44. The privilege cannot be easily defeated: "[I]n the ordinary case the civil litigant's interest in disclosure should yield to the journalist's privilege. Indeed, if the privilege does not prevail in all but the most exceptional cases, its value will be substantially diminished." Id. Accordingly, a request for merely cumulatively material cannot trump the First Amendment.

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7. Civil/criminal rules of procedure

  1. Arizona Rules of Civil Procedure

Rule 45 of the Arizona Rules of Civil Procedure provides several means for contesting frivolous or unduly burdensome subpoenas. If the party or attorney serving the subpoena fails to take reasonable steps to avoid imposing an undue burden or expense on the subpoenaed party, the court may impose sanctions on the serving party or attorney. See Ariz. R. Civ. P. 45(e)(1). If the subpoenaed person is not a party to the litigation, the court may issue an order to protect such person from any significant expense resulting from the mandated copying and inspection. See Rule 45(e)(2). The subpoenaed party may also file a motion in the superior court of the county in which the case is pending to quash or modify the subpoena.  The court must grant the motion to quash or modify if the subpoena:

(i) does not provide a reasonable time for compliance;

(ii) requires a person who is neither a party nor a party’s officer to travel to a location other than the places specified in Rule 45(b)(3)(B);

(iii) requires the disclosure of privileged or protected information and no waiver or exception applies; or

(iv) subjects the responding party to an undue burden.

See Ariz. R. Civ. P. 45(e)(2)(A).  The court may grant the motion to quash or modify if the subpoena:

(i) requires disclosing a trade secret or other confidential research, development, or commercial information.

(ii) requires disclosing an unretained expert’s opinion or information that does not describe specific occurrences in dispute and results from the expert’s study that was not requested by a party;

(iii) it requires a person who is neither a party nor a party’s officer to incur substantial travel expense; or

(iv) justice so requires.

If the demanding party shows a substantial need for the testimony or material that cannot otherwise be obtained without undue hardship, and assures that the subpoenaed person will be reasonably compensated, the court may order an appearance or production of the requested materials subject to specified conditions. See Ariz. R. Civ. P. 45(e)(2)(C).

  1. Arizona Rules of Criminal Procedure

Rule 15.5(a) of the Arizona Rule of Criminal Procedure states that the court may order, upon a showing of good cause, that disclosure of the identity of any witness be deferred, denied, or otherwise regulated when it finds:

(1) That the disclosure would result in a risk or harm outweighing any usefulness of the disclosure to any party; and

(2) That the risk cannot be eliminated by a less substantial restriction of discovery rights.

Ariz. R. Crim. P. 15.5(a).

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8. Other elements

Under Matera, if the subpoenaed party raises the Arizona Shield Law in opposition to a subpoena, it bears the burden of demonstrating that the subpoena would require the disclosure of a confidential source of information. 170 Ariz. at 450, 825 P.2d at 975; see also Reinstein, 240 Ariz. at 448, 381 P.3d at 242 (finding that the Media Shield Law applies only to confidential sources, not information). However, no statutory or case law specifically addresses how a party would, or could, meet that burden.

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C. Waiver or limits to testimony

In Cooper Tire, the court considered whether a reporter had waived the Media Shield Law privilege by submitting certain materials to the court for an in camera inspection following demands from another party.  Specifically, the reporter had obtained documents from a third-party source that had been marked as confidential in an ongoing proceeding.  218 Ariz. at 55-56, 178 P.3d at 1179-80.  The party to the case which had designated the materials as confidential sought information regarding the identity of the confidential source and the reporter objected to turning that information over.  Id.

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1. Is the privilege waivable?

In Cooper Tire, the court assumed for purposes of its decision that the privilege was subject to waiver.  In doing so, however, the court noted that it made this assumption only because it found that waiver had not, in fact, occurred. Id.  (Assuming arguendo that the A.R.S. § 12–2237 privilege can be waived, neither KNXV's litigation position nor its limited disclosures support a waiver finding in this case.”).

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2. Elements of waiver

a. Disclosure of confidential source's name

In Cooper Tire, the court found that the reporter did not waive the confidential source’s name by submitting it to the court for an in camera inspection and generally describing the documents.  Id. at 59, 178 P.3d at 1183.

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b. Disclosure of non-confidential source's name

The Arizona Supreme Court has suggested that the Arizona Shield Law does not apply to non-confidential sources. Moody, 208 Ariz. at 458, 94 P.3d at 1153; see also Matera, 170 Ariz. at 450, 825 P.2d at 975.

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c. Partial disclosure of information

In Cooper Tire, the court found that the reporter did not waive the confidential source’s name by generally describing the documents at issue.  218 Ariz. at 59, 178 P.3d at 1183.

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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

Ariz. R. Evid. 902(6) provides that newspaper articles are self-authenticating.

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B. Broadcast materials

There is no statutory or case law addressing this issue. Parties often stipulate to the authenticity of news reports that actually aired. If stipulation is not possible, the broadcaster's custodian of records could provide an authenticating declaration or affidavit. Live testimony on such issues is extremely rare.

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C. Testimony vs. affidavits

See Section VII.B. Parties often stipulate to the authenticity of news reports. If stipulation is not possible, a custodian of records can provide an authenticating declaration or affidavit.

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D. Non-compliance remedies

Typically, an order to compel production is available to force a journalist to comply with a valid, upheld subpoena. There are no reported cases concerning the kinds of contempt remedies that may be imposed for a journalist's failure to comply. Nevertheless, Arizona cases discussing contempt proceedings generally indicate that civil, not criminal, contempt proceedings could be initiated against a reporter who fails to comply with an order enforcing a valid subpoena. See, e.g., State v. Cohen, 15 Ariz. App. 436, 489 P.2d 283 (1971) ("civil contempt" consist of failing to do something which the party has been ordered to do for the benefit of another party; civil contempt describes the situation where the parties held in contempt "carry the keys of their prison in their own pockets").

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1. Civil contempt

a. Fines

There is no statutory or case law addressing this issue. There are no recent examples of reporters being fined for refusing to comply with subpoenas.

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b. Jail

There is no statutory or case law addressing this issue. There are no recent examples of reporters who went to jail rather than disclose the names of confidential sources or information.

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2. Criminal contempt

The authors of this outline are aware of no instance in which any criminal contempt sanctions have been imposed on reporters in Arizona for failing to comply with a valid, upheld subpoena.

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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

In Arizona, discretionary interlocutory appeals are called "special actions." Special actions are extraordinary remedy proceedings previously termed certiorari, mandamus and prohibition. Rule 1(a), Rules of Procedure for Special Actions (R.P.S.A.). No strict time limits govern the time for initiating special actions. A special action brought in an appellate court is initiated by filing a petition similar in form to an appellate brief. R.P.S.A. 7. Upon receipt of a petition, the appellate court may set a time for oral argument and/or a time for the filing of a response.

Special actions are different than direct appeals, which may be brought only from final, appealable orders and judgments. Discovery rulings, including orders granting or denying a motion to quash, are generally not considered final, appealable orders. The Arizona Court of Appeals has accepted special action jurisdiction in cases raising issues involving the application of the Media Subpoena Law.  See Reinstein, 240 Ariz. at 444, 381 P.3d at 238; see also Carpenter v. Superior Court (Phoenix Police Dep't), 176 Ariz. 486, 487, 862 P.2d 246, 247 (Ct. App. 1993) (accepting special action jurisdiction over an order quashing a subpoena directed to the Phoenix Police Department where the trial court's order was not appealable and the discovery procedure used raised an issue of statewide importance).

Special action relief may be sought where a trial court orders a party to divulge privileged material, or refuses to protect allegedly confidential or privileged information. See, e.g., Arizona Portland Cement Co. v. Arizona State Tax Court, 185 Ariz. 354, 357, 916 P.2d 1070, 1073 (App. 1995) (granting special action relief where the trial court compelled a cement company to produce private business records and financial information without granting the company's corresponding motion for protective order); Blazek v. Superior Court (Segrave), 177 Ariz. 535, 536, 869 P.2d 509, 510 (App. 1994) ("a special action is the appropriate means of relief when a party is ordered to disclose what she believes is privileged material"). Cf. Scottsdale Publ'g, Inc. v. Superior Court, 159 Ariz. 72, 74, 764 P.2d 1131, 1133 (Ct. App. 1988) (exercising special action jurisdiction "in furtherance of the public's significant first amendment rights in protecting the press from the chill of meritless libel actions").

Civil contempt citations can be appealed by special action only. See, e.g., 1 Hon. Sheldon H. Weisberg and Paul G. Ulrich, eds., Arizona Appellate Handbook § 3.3.1.12.2.4, at 3-21 (4th ed. 2000) (citing Pace v. Pace, 128 Ariz. 455, 456-57, 626 P.2d 619, 620-21 (Ct. App. 1981)).

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2. Expedited appeals

Special actions are, by their nature, expedited proceedings. Nevertheless, "for cause shown," the appellate may order acceleration of any special action procedures. R.P.S.A. 7(d).

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B. Procedure

1. To whom is the appeal made?

For orders granted by a superior court, a special action should be filed in the intermediate appellate court for the division in which the superior court is located. R.P.S.A. 4(b).

In rare cases, the special action may be filed directly in the Arizona Supreme Court. The Court generally will not exercise jurisdiction over such special actions absent "extremely unusual circumstances," 1 Arizona Appellate Handbook § 7.3.1, at 7-18, such as where the issues raised are "of sufficient and extraordinary importance to justify the review requested." Jolly v. Superior Court of Pinal County (Southern Pacific Transportation Co.), 112 Ariz. 186, 188, 540 P.2d 658, 660 (1975). See KPNX Broadcasting Co. v. Superior Court, 139 Ariz. 246, 678 P.2d 431 (1984) (accepting petition for special action where the trial court had imposed an unconstitutional prior restraint on the broadcast of courtroom sketches in a criminal trial of widespread public interest).

Final orders and judgments granted by municipal or justice of the peace courts are generally appealable to the Arizona Superior Court, which serves as the appellate court for these tribunals. See A.R.S. § 22-261. Presumably, discretionary interlocutory appeals in the form of special actions may be filed in the superior court from orders rendered by municipal or justice of the peace courts. See R.P.S.A. 4(a) (special actions may be brought in superior court); R.P.S.A. 7(a) (special actions may be brought "in any appellate court").

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2. Stays pending appeal

The petitioner should file a separate application for a stay. In the first instance, the application should be filed in the court that issued the ruling that is being appealed from. 1 Arizona Appellate Handbook § 7.8, at 7-29. Division One of the Arizona Court of Appeals (located in Phoenix) will not consider a stay application unless and until an application has been heard and denied by the lower court. Id. § 7.16, at 7-41.

If a stay from the Court of Appeals is necessary, the petitioner can seek a stay under R.P.S.A. 5 and 7(c). These rules provide that the appellate court may grant an interlocutory stay, either ex parte or after notice and hearing, in the same manner and subject to the same limitations that govern the issuance of temporary restraining orders and preliminary injunctions under Ariz. R. Civ. P. 65 – including the rule's security bond provisions.

There is no statutory or case law addressing whether the standard applied to a stay application is different in media cases, or whether a stay is more likely to be granted in such matters.

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3. Nature of appeal

See Section VIII.A.1. The appeal is a "special action."

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4. Standard of review

The application of a privilege is a question of law, subject to de novo review. See, e.g., Blazek, 177 Ariz. at 536, 869 P.2d at 510; Reinstein, 240 Ariz. at 446, 381 P.3d at 240.

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5. Addressing mootness questions

No statutory or case law addresses this issue in the context of cases involving the reporter's privilege. Nevertheless, Arizona recognizes the exception to mootness for cases capable of repetition but evading review. See, e.g., KPNX Broadcasting, 139 Ariz. at 250, 678 P.2d at 435.

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6. Relief

The Rules of Procedure for Special Actions do not appear to impose any limits on the scope of relief that may be afforded in special action proceedings.

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IX. Other issues

A. Newsroom searches

The authors of this outline are unaware of any instances in which the federal Privacy Protection Act, 42 U.S.C. §§ 2001aa – 2000aa-12, has been used in this state in connection with searches of newsrooms or seizures of journalistic materials. The Act, passed in 1980, makes illegal the search and seizure of items in a newsroom, except in limited circumstances. 42 U.S.C. §§ 2001aa – 2000aa-12. While it does not provide an absolute privilege from subpoenas, it indicates an effort on the part of Congress to protect the confidentiality of newsworthy information gathered for publication. Indeed, Congress enacted the law to require "law enforcement authorities to proceed by request or subpoena first in obtaining such materials," in order to "lessen greatly the threat … to the vigorous exercise of First Amendment rights." S. Rep. No. 96-874, at 1879 (1980), reprinted in U.S.C.C.A.N. 3950. The Act "recognizes . . . the importance of First Amendment values, plac[ing] a heavy burden on law enforcement officers . . . ." 1980 U.S.C.C.A.N. at 3957.

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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 are no statutory provisions and no reported cases that address the media's recourse when third-party subpoenas are used in an attempt by others to discover a reporter's source.

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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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