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Colorado

Reporter's Privilege Compendium

David M. Giles, Esq.
E.W. Scripps Co.
312 Walnut Street
Cincinnati, Ohio 45202-4067

Revised by:
Steven D. Zansberg (zansbergs@ballardspahr.com; (303) 376-2409)
Ethan J. Birnberg (birnberge@ballardspahr.com; (303) 454-0534)
Ballard Spahr LLP
1225 17th Street, Suite 2300
Denver, Colorado 80202
www.ballardspahr.com

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I. Introduction: History & Background

In 1990 the Colorado General Assembly acknowledged that "an informed citizenry, which results from the free flow of information between citizens and the mass media, and the preservation of news information sources for the mass media is of vital concern to all the people of the state of Colorado." This acknowledgment served as a platform for adopting broad statutory protections for newspapers, magazines, television and radio broadcasters and other publishers of information. As enacted, the Colorado Press Shield Law provides a qualified privilege for materials and information obtained by a newsperson in the course of newsgathering activities. The shield laws' qualified protections extend to both confidential and non-confidential sources and apply to civil and criminal actions as well as administrative proceedings.

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II. Authority for and source of the right

The source for the Shield Law protections in Colorado are found in C.R.S. § 13-90-119, which grants a qualified privilege protecting newspersons from subpoenas in judicial proceedings. See also, C.R.S. §§ 24-72.5-101 through 106 (qualified privilege to newspersons in administrative proceedings), addressed more fully at Section II D. The privilege created by the Shield Law are similar to those at common law. In order to trump the privilege, the information sought must be a) integral to the case; b) not available from any alternative source; and c) the need for the information outweighs the prevailing First Amendment interest. Before the Colorado legislature's enactment of the Shield Law protections in 1990, many state trial courts had acknowledged the existence of a common law privilege. See, e.g., Jones v. Woodward, 15 Media L. Rep. 2060 (Denver Dist. Ct. 1988) (using qualified privilege to grant reporter's motion to quash subpoena). However, the state appellate courts had weighed in on the privilege issue, asserting there was no privilege under the Colorado constitution. See Pankratz v. District Court, 609 P.2d 1101 (Colo. 1980) (a reporter must testify before a grand jury because he was the only witness to criminal conduct); Gagnon v. District Court In & For Cty. of Freemont, 632 P.2d 567 (Colo. 1981) (defendant/reporter required to provide confidential source and documents in defamation action because information was "clearly relevant").

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A. Shield law statute

The Colorado Press Shield Law, C.R.S. § 13-90-119 states:

(1) As used in this section, unless the context otherwise requires:

(a) "Mass medium" means any publisher of a newspaper or periodical; wire service; radio or television station or network; news or feature syndicate; or cable television system.

(b) "News information" means any knowledge, observation, notes, documents, photographs, films, recordings, videotapes, audiotapes, and reports, and the contents and sources thereof, obtained by a newsperson while engaged as such, regardless of whether such items have been provided to or obtained by such newsperson in confidence.

(c) "Newsperson" means any member of the mass media and any employee or independent contractor of a member of the mass media who is engaged to gather, receive, observe, process, prepare, write, or edit news information for dissemination to the public through the mass media.

(d) "Press conference" means any meeting or event called for the purpose of issuing a public statement to members of the mass media, and to which members of the mass media are invited in advance.

(e) "Proceeding" means any civil or criminal investigation, discovery procedure, hearing, trial, or other process for obtaining information conducted by, before, or under the authority of any judicial body of the state of Colorado. Such term shall not include any investigation, hearing, or other process for obtaining information conducted by, before, or under the authority of the general assembly.

(f) "Source" means any person from whom or any means by or through which news information is received or procured by a newsperson, while engaged as such, regardless of whether such newsperson was requested to hold confidential the identity of such person or means.

(2) Notwithstanding any other provision of law to the contrary and except as provided in subsection (3) of this section, no newsperson shall, without such newsperson's express consent, be compelled to disclose, be examined concerning refusal to disclose, be subjected to any legal presumption of any kind, or be cited, held in contempt, punished, or subjected to any sanction in any judicial proceedings for refusal to disclose any news information received, observed, procured, processed, prepared, written, or edited by a newsperson, while acting in the capacity of a newsperson; except that the privilege of nondisclosure shall not apply to the following:

(a) News information received at a press conference;

(b) News information which has actually been published or broadcast through a medium of mass communication;

(c) News information based on a newsperson's personal observation of the commission of a crime if substantially similar news information cannot reasonably be obtained by any other means;

(d) News information based on a newsperson's personal observation of the commission of a class 1, 2, or 3 felony.

(3) Notwithstanding the privilege of nondisclosure granted in subsection (2) of this section, any party to a proceeding who is otherwise authorized by law to issue or obtain subpoenas may subpoena a newsperson in order to obtain news information by establishing by a preponderance of the evidence, in opposition to a newsperson's motion to quash such subpoena:

(a) That the news information is directly relevant to a substantial issue involved in the proceeding;

(b) That the news information cannot be obtained by any other reasonable means; and

(c) That a strong interest of the party seeking to subpoena the newsperson outweighs the interests under the first amendment to the United States constitution of such newsperson in not responding to a subpoena and of the general public in receiving news information.

(4) The privilege of nondisclosure established by subsection (2) of this section may be waived only by the voluntary testimony or disclosure of a newsperson that directly addresses the news information or identifies the source of such news information sought. A publication or broadcast of a news report through the mass media concerning the subject area of the news information sought, but which does not directly address the specific news information sought, shall not be deemed a waiver of the privilege of nondisclosure as to such specific news information.

(5) In any trial to a jury in an action in which a newsperson is a party as a result of such person's activities as a newsperson and in which the newsperson has invoked the privilege created by subsection (2) of this section, the jury shall be neither informed nor allowed to learn that such newsperson invoked such privilege or has thereby declined to disclose any news information.

(6) Nothing in this section shall preclude the issuance of a search warrant in compliance with the federal "Privacy Protection Act of 1980", 42 U.S.C. sec. 2000aa.

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B. State constitutional provision

Colorado Courts have acknowledged that the Colorado constitution provides more protection for free speech rights than the First Amendment to the U.S. Constitution. See, e.g., Brock v. Westminster Mall Co., 819 P.2d 55, 59 (Colo. 1991); People v. Seven Thirty-Five East Colfax, Inc., 697 P.2d 348, 356 (Colo. 1985).

Article II, Section 10 of the Colorado constitution provides that "[n]o law shall be passed impairing the freedom of speech; every person shall be free to speak, write or publish whatever he will on any subject, being responsible for all abuse of that liberty . . . "

The expanded free speech rights of the Colorado constitution, however, did not yield additional shield law privileges for the media. See Colorado Criminal Practice and Procedure, Vol. 15 (1996), Dieter, § 19.25. Prior to enactment of the Shield Law, the Colorado Supreme Court declined to recognize a privilege implicit in the constitution. Gagnon v. District Court In & For Cty. Of Fremont, 632 P.2d 567, 569 (Colo. 1981): Pankratz v. District Court In & For City & Cty. Of Denver, 609 P.2d 1101, 1103 (Colo. 1980) ("We also decline to create such a testimonial privilege for news reporters" under the Colorado constitution).

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C. Federal constitutional provision

In Gagnon and Pankratz, supra, the Colorado Supreme Court declined to find the existence of a First Amendment reporter's privilege. In Pankratz, for example, the court stated, "Pankratz asserts that such a [reporter's] privilege exists under the First Amendment to the United States Constitution and under Article II, Section 10 of the Colorado Constitution. We do not agree that Pankratz had such a privilege under the circumstances of this case." Pankratz, 609 P.2d at 1102.

In Gordon v. Boyles, 9 P.3d 1106 (Colo. 2000), however, the Colorado Supreme Court acknowledged that First Amendment interests are implicated "when a newsperson is compelled to disclose confidential news information." Id., 9 P.3d at 1116. The Boyles court cited significant portions of Justice Stewart's dissent in Branzburg v. Hayes, 408 U.S. 665 (1972), (Stewart, J. dissenting) (the ability of the press to gather information by promising to keep the identities of their sources confidential is a crucial tool for the media).

The Gagnon and Pankratz decisions run contrary to the U.S. District Court of Colorado's holding in Re/Max International, Inc. v. Century 21 Real Estate Corporation, 846 F. Supp. 910 (D. Colo. 1994). Although this decision was issued after the state Shield Law had been enacted, there is no indication that the court had taken the law into consideration in its opinion. Without relying upon the Colorado Press Shield Law, a federal judge held that the First Amendment provides a qualified protection for newspersons from disclosure of information gathered while reporting. To overcome the newsperson's privilege in federal court under the First Amendment, the party seeking information from a reporter must show that (1) the information sought is centrally relevant, and (2) the information is unavailable from other sources. Re/Max, 846 F Re/Max, 846 P. Supp. 910. Supp. 910. The court quashed a subpoena to take the deposition of a reporter where the reporter's testimony had only de minimis impeachment value. Id.; see also Artes-Roy v. City of Aspen, 20 Media L. Rep. 1647 (D. Colo. 1992) (declining to rule whether Colorado Press Shield Law applies in federal civil rights action in federal court, but granting motion to quash subpoena on news persons where information sought could be obtained from parties associated with case).

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D. Other sources

In 1991, during the same legislative session in which the Colorado General Assembly enacted the Press Shield Law, it also adopted a statute addressing the newsperson's privilege in administrative proceedings. The preamble provides ample evidence of the importance the Assembly placed on a free press and an informed citizenry.

C.R.S. 24-72.5-101 --106 states as follows:

C.R.S. § 24-72.5-101

The general assembly finds that an informed citizenry, which results from the free flow of information between citizens and the mass media, and the preservation of news information sources for the mass media is of vital concern to all people of the state of Colorado and that the interest of the state in such area is so great that the state shall retain jurisdiction over the use of any subpoena power or the exercise of any other authority by any governmental entity to obtain news information or the identification of the source of such information within the knowledge or possession of newspersons, which is hereby declared to be a matter of statewide concern.

C.R.S. § 24-72.5-102

As used in this article, unless the context otherwise requires:

(1) "Governmental entity" means the state and any state agency or institution, county, city and county, incorporated city or town, school district, special improvement district, authority, and every other kind of district, instrumentality, or political subdivision of the state organized pursuant to law. "Governmental entity" shall include entities governed by home rule charters.

(2) "Mass medium" means any publisher of a newspaper or periodical; wire service; radio or television station or network; news or feature syndicate; or cable television system.

(3) "News information" means any knowledge, observation, notes, documents, photographs, films, recordings, videotapes, audiotapes, and reports, and the contents and sources thereof, obtained by a newsperson while engaged as such, regardless of whether such items have been provided to or obtained by such newsperson in confidence.

(4) "Newsperson" means any member of the mass media and any employee or independent contractor of a member of the mass media who is engaged to gather, receive, observe, process, prepare, write, or edit news information for dissemination to the public through the mass media.

(5) "Press conference" means any meeting or event called for the purpose of issuing a public statement to members of the mass media, and to which members of the mass media are invited in advance.

(6) "Proceeding" means any investigation, hearing, or other process for obtaining information conducted by, before, or under the authority of any executive or administrative body, panel, or officer of the state of Colorado or any city, county, city and county, or other political subdivision of the state. Such term shall not include any investigation, hearing, or other process for obtaining information conducted by, before, or under the authority of the general assembly.

(7) "Source" means any person from whom or any means by or through which news information is received or procured by a newsperson, regardless of whether such newsperson was requested to hold confidential the identity of such person or means.

C.R.S. § 24-72.5-103

(1) Notwithstanding any other provision of law to the contrary, and except as otherwise provided by section 24-72.5-104, no newsperson shall, without the express consent of such newsperson, be compelled to disclose, be examined concerning refusal to disclose, or be subject to any process to compel disclosure or to impose any sanction for nondisclosure in connection with any proceeding of a governmental entity for refusal to disclose any news information received, observed, procured, processed, prepared, written, or edited by a newsperson, while acting in the capacity of a newsperson; except that the privilege of nondisclosure shall not apply to the following:

(a) News information received at a press conference;

(b) News information that has actually been published or broadcasted through the mass media;

(c) News information based on a newsperson's personal observation of the commission of an act which, under any statute, law, or ordinance, is deemed to be a criminal offense if substantially similar news information cannot reasonably be obtained by any other means;

(d) News information based on a newsperson's personal observation of the commission of a class 1, 2, or 3 felony.

C.R.S. § 24-72.5-104

(1) Notwithstanding the privilege of nondisclosure established in section 24-72.5-103, a governmental entity otherwise authorized by law to issue or obtain subpoenas may subpoena a newsperson in order to obtain news information by establishing, by a preponderance of the evidence:

(a) That the news information is directly relevant to a substantial issue involved in the proceeding;

(b) That the news information cannot be obtained by any other reasonable means; and

(c) That a strong interest of the party seeking to subpoena the newsperson outweighs the interests under the first amendment to the United States constitution of such newsperson in not responding to a subpoena and of the general public in receiving news information.

C.R.S. § 24-72.5-105

The privilege of nondisclosure established in section 24-72.5-103 may be waived only by the voluntary testimony or disclosure of a newsperson that directly addresses the news information or identifies the source of such news information sought by a governmental entity. A publication or broadcast of a news report through the mass media concerning the subject area of the news information sought, but which does not directly address the news information sought by such governmental entity, shall not be deemed a waiver of the privilege of nondisclosure as to such specific news information.

C.R.S. § 24-72.5-106

Nothing in this article shall preclude the issuance of a search warrant pursuant to the federal "Privacy Protection Act of 1980", 42 U.S.C. sec. 2000aa.

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III. Scope of protection

A. Generally

The Colorado Press Shield Law provides broad protection for newgatherers. Although not absolute, the language in the statute broadly defines the kinds of information protected ("any knowledge, observations, notes," etc.) and the individuals and organizations who can assert the privilege ("any member of the mass media"). This broad language has permitted varied groups from the helicopter pilot of a local television station to the publisher of an Anti-Defamation League newsletter to successfully assert the privilege.

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B. Absolute or qualified privilege

The Colorado Press Shield Law is a qualified privilege. Gordon v. Boyles, 9 P.3d 1106 (Colo. 2000). The law states that "no newsperson shall, without such newsperson's express consent, be compelled to disclose, be examined concerning refusal to disclose, be subject to any legal presumption of any kind, or be cited, held in contempt punished, or subjected to any sanction" for refusing to disclose information obtained while "acting in the capacity of a newsperson." C.R.S. § 13-90-119(2). The Shield Law does not apply where the news information: a) was received at a press conference; (b) has actually been published or broadcast through a medium of mass communication; (c) was based on a news person's personal observation of the commission of a crime if substantially similar news information cannot reasonably be obtained by any other means; and (d) was based on a news person's personal observation of the commission of a class 1, 2, or 3 felony. Id.

The qualified privilege can be defeated where the person seeking the information can prove by a preponderance of the evidence: "(a) That the news information is directly relevant to a substantial issue involved in the proceedings; (b) That the news information cannot be obtained by any other reasonable means; and (c) That a strong interest of the party seeking to subpoena the news person outweighs the interests under the first amendment to the United States Constitution of such news person in not responding to a subpoena and of the general public in receiving news information." C.R.S. § 13-90-119(3). See Brokers’ Choice of Am., Inc. v. NBC Universal, Inc., 757 F.3d 1125, 1142-43 (10th Cir. 2014) (discussing that the qualified privilege protects confidential information, but it is a shield and not a sword).

The privilege can be asserted regarding both confidential and non-confidential information in both civil and criminal cases. C.R.S. § 13-90-119(1)(b), (e). The corollary statute addressing governmental and administrative proceedings also applies to both confidential and non-confidential information. See generally, C.R.S. § 24-72.5-101, et seq.

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C. Type of case

1. Civil

The privilege was intended to apply to all civil judicial proceedings, including civil discovery procedures, hearings or trials. C.R.S. § 13-90-119(1)(e); see also, e.g., Quigley v. Rosenthal, 43 F. Supp. 2d 1163 (D. Colo. 1999) (Colorado Shield Law privilege may be asserted by Jewish rights organization that publishes periodicals, books and pamphlets); Brokers’ Choice of Am., Inc. v. NBC Universal, Inc., 757 F.3d at 1143 (privilege applicable but not allowed when plaintiff would be greatly prejudiced in its ability to prove the defamation claim); Gordon v. Boyles, supra.

Administrative Proceedings. During the same legislative session in which it adopted the Shield Law, the Colorado General Assembly also adopted a law addressing testimonial privileges for the media in administrative proceedings. See, C.R.S. 24-72.5-101, et seq., discussed in Section II D, supra. There is no case law that has interpreted C.R.S. 24-72.5-101, et seq. Although it is numbered differently, the language in the statute essentially mirrors the language in the Shield Law. Compare, C.R.S. 13-90-119 to C.R.S. 24-72.5-101, et seq. Other than the numbering, the only substantive differences between the statutes is the addition in C.R.S. 24-72.5-101, of a preamble, and the addition of a definition of a "government entity" in C.R.S. 24-72.5-102(1). Because of their similarities, the courts are likely to apply the statutes similarly.

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2. Criminal

The privilege was intended to apply to all criminal judicial proceedings, including criminal investigations, discovery procedures, hearings or trials. C.R.S. § 13-90-119(1)(e). Since its enactment, courts have applied the same balancing of interest test irrespective of whether it is a criminal or civil case. For example, the privilege has been applied in criminal cases to provide immunity from testimony for a newsperson who piloted a helicopter in which police officers observed illegal drug activity. Henderson v. People, 879 P.2d 383 (Colo, 1994). In that case, the helicopter pilot did not have to testify because the criminal defendant failed to show that he "could not obtain the evidence requested from some other reasonable means." Id. at 393.

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3. Grand jury

While there has been no case law in Colorado testing the Shield Law in the context of a grand jury proceeding, the statute is written broadly enough to be applicable to such proceedings. The statute clearly states that the privilege attaches in any "criminal investigation, discovery procedure, hearing, trial or other process for obtaining information conducted by, before, or under the authority of any judicial body of the state of Colorado." C.R.S. § 13-90-119(1)(e).

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D. Information and/or identity of source

The Colorado Press Shield law protects journalists from compelled disclosure of "[n]ews information," C.R.S. § 13-90-119(2), defined as any "knowledge, observation, notes, documents, photographs, films, recordings, videotapes, audiotapes, and reports, and the contents and sources thereof . . . ." C.R.S. § 13-90-119(1)(b). The statute defines "[s]ource" as "any person from whom or any means by or through which news information is received or procured by a newsperson, while engaged as such, regardless of whether such newsperson was requested to hold confidential the identity of such person or means." C.R.S. § 13-90-119(1)(f).

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E. Confidential and/or nonconfidential information

The Colorado Press Shield Law applies to all information, "regardless of whether [the information has] been provided to or obtained by such newsperson in confidence." C.R.S. § 13-90-119(1)(b). The information covered by the statute is defined as any "knowledge, observation, notes, documents, photographs, films, recordings, videotapes, audiotapes and reports." C.R.S. §13-90-119(1)(b). This standard was applied before the statute was enacted. See Jones v. Woodward, 15 Med. L. Rptr. at 2061 ("the qualified reporter's privilege applies whether or not the source of the reporter's information is confidential").

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F. Published and/or non-published material

The Colorado Press Shield Law protects non-published information, but provides no privilege regarding information that has been published. "[T]he privilege of nondisclosure shall not apply to … (b) News information which has actually been published or broadcast through a medium of mass communication." C.R.S. § 13-90-119(2)(b).

The issue of published information was addressed in People v. Morise, 859 P.2d 247 (Colo. App. 1993), although the court did not determine whether the subpoenas had been properly quashed under the Shield Law. In Morise, the Colorado Court of Appeals reversed a criminal conviction based on the admission into evidence of the defendant's statements contained in newspaper articles about the defendant. The trial court had previously quashed subpoenas served on reporters who wrote the articles in question. The court held that the articles themselves were inadmissible hearsay. Under this ruling, it is possible that a reporter may not be permitted to assert the privilege if their testimony is necessary to establish that a statement reported in an article was actually made or that the article accurately reflected a source's specific statement.

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G. Reporter's personal observations

The statute does not permit a newsperson to assert the privilege regarding certain personal observations. "[T]he privilege of nondisclosure shall not apply to … (c) News information based on a newsperson's personal observation of the commission of a crime if substantially similar news information cannot reasonably be obtained by any other means; (d) News information based on a newsperson's personal observation of the commission of a class 1, 2 or 3 felony." C.R.S. § 13-90-119(2)(c)-(d).

In a pre-statute decision, the Colorado Supreme Court found that a reporter had to testify because he was the only witness to a criminal act. Pankratz v. District Court, 609 P.2d at 1103. In Pankratz, a reporter interviewed the Director of the Medicaid Fraud Unit of the State of Colorado. During the interview and after the reporter agreed to keep his identity confidential, the director gave the reporter a list of indictments and the names of the persons to be indicted by the 1978 Statutory Grand Jury. The director's actions were in violation of C.R.C.P. 62 and Rule 41(e) of the Local Rules of Practice. Since the reporter was a witness to the crime, the court "found no case to support the proposition that a news reporter who actually witnesses the criminal act" can assert a privilege. Id.

In Henderson v. People, the television station's employee, who was flying a helicopter with passengers that included a police officer, did not have to testify about his observations of an alleged crime scene because the information was reasonably available from another source -- the police officer. Henderson v. People, 879 P.2d at 393.

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H. Media as a party

Section 13-90-119(5) states that "[i]n any trial to a jury in an action in which a newsperson is a party as a result of such person's activities as a newsperson and in which the newsperson has invoked the privilege created by subsection (2) of this section, the jury shall be neither informed nor allowed to learn that such newsperson invoked such privilege or has thereby declined to disclose any news information."

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I. Defamation actions

Section 13-90-119(5) governs cases where the newsperson is a party to the proceeding, i.e., defamation and privacy suits, and prevents the jury from being informed that the newsperson has exercised the privilege.

This issue was addressed in Gordon v. Boyles, 9 P.3d 1106 (Colo. 2000). In Gordon, a radio talk show host was sued for statements made on the air about an alleged altercation outside a bar involving two off-duty police officers. The host invoked the privilege when asked who he had relied upon in gathering and verifying his information. The Supreme Court found that, when a newsperson is sued for defamation and relies upon a confidential source as a basis for a defense that the statements were not published with actual malice, the newsperson will not be compelled to disclose the identity of the confidential source unless the defamation plaintiff demonstrates the probable falsity of the defendant's statements. If the court agrees that, based on the evidence, the three factors listed in § 13-90-119(3) have been established, including a determination that the evidence available at the time of the allegedly defamatory broadcasts demonstrated the probable falsity of the defendant's statement, the source must be revealed.

As a consequence, under Gordon, where a newsperson defendant can provide evidence that a confidential source's information was probably truthful, the court should not order the newsperson to disclose the source's identity. Although the statute, on its face, extends equal protection against disclosure of confidential source information and any other unreported news information, the Tenth Circuit Court of Appeals has held that the defamation plaintiff’s burden to show “probable falsity” applies only to cases involving confidential sources. Brokers’ Choice of Am., Inc. v. NBC Universal, Inc., 757 F.3d 1125, 1143 (10th Cir. 2014). This ruling is not binding in Colorado state courts.

As with news information, the Shield Law may protect information about the editorial process if it is not directly relevant. Colorado courts have not specifically addressed the discoverability of editorial processes; however, Colorado courts will likely follow the rationale of Herbert v. Lando, 441 U.S. 153 (1979). See Burns v. McGraw-Hill Broadcasting Co., 659 P.2d 1351, 1365 (Colo. 1983).

As an aside, the court in Gordon held that, where the newsperson is a party to the case, a subpoena is not required. Gordon, 9 P.3d at 1117, n. 13.

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IV. Who is covered

The Shield Law broadly defines a newsperson as "any member of the mass media and any employee or independent contractor of a member of the mass media who is engaged to gather, receive, observe, process, prepare, write or edit news information for dissemination to the public through the mass media." C.R.S. § 13-90-119(1)(c).

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A. Statutory and case law definitions

1. Traditional news gatherers

a. Reporter

The Shield Law includes no specific definition of a reporter; however, based on the broad language of the statute, a reporter is clearly protected by the privilege. See, e.g., Re/Max, 846 F. Supp. 911 (D. Colo. 1994) (Rocky Mountain News reporter may assert common law privilege).

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b. Editor

The Shield Law includes no specific definition of an editor; however, based on the broad language of the statute, an editor may assert the privilege. In Gordon, the court vacated a lower court order requiring the host's supervisor to reveal confidential sources. Gordon, 9 P.3d at 1122. The court stated that the supervisor, as a non-party, may rely on the protections of the privilege and that the supervisor can be compelled to testify only after the test in 13-90-119(3) is met. Id. The court held, however, that the corporate owner of the radio station could not avail itself of the privilege.

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c. News

The Shield Law broadly defines "news information" as "any knowledge, observation, notes, documents, photographs, films, recordings, videotapes, audiotapes, and reports . . . obtained by a newsperson." C.R.S. § 13-90-119(1)(b).

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d. Photo journalist

By virtue of including observations, photographs, films, recordings, videotapes and audiotapes in the definition of news information, the statute clarifies that a photojournalist has standing to assert the privilege.

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e. News organization/medium

The statute does not include the medium or organization in its definition of a newsperson. The statute specifically says that individual employees or independent contractors are covered by the privilege. C.R.S. 13-90-119(1)(c). Furthermore, the Colorado Supreme Court has held that the owner of a radio station does not have standing to assert the privilege. Gordon, 9 P.3d at 1122. The federal court's definition of a newsperson may be broad enough to include a news organization or medium. In Quigley v. Rosenthal, 43 F. Supp. 2d 1163 (D. Colo. 1999), the District Court found that the newsperson's privilege extended to the Anti-Defamation League by virtue of the fact that the ADL engages in newsgathering activities and because it publishes books, periodicals and pamphlets.

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2. Others, including non-traditional news gatherers

The Shield Law is broadly defined to incorporate those outside the realm of a traditional journalist or newsperson. See Henderson v. People, 879 P.2d 383 (television news helicopter pilot may invoke privilege); Quigley v. Rosenthal, 43 F. Supp. 2d 1163 (Anti-Defamation League may assert privilege because it gathers news and publishes periodicals, books and pamphlets).

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B. Whose privilege is it?

Although this issue has not specifically been addressed by any Colorado court, the plain language of the statute indicates that the privilege belongs to the reporter, as opposed to the source. The statute states that "no newsperson shall" be compelled to disclose news information obtained while gathering the news. C.R.S. § 13-90-119(2).

It also appears as though the privilege is the newsperson's, not the owner of the news organization. In Gordon, the Colorado Supreme Court stated that the privilege cannot be relied upon by the corporate owner of a radio station. Gordon v. Boyles, 9 P.3d at 1122. However, in Quigley v. Rosenthal, 43 F. Supp. 2d 1163 (D. Colo. 1999), a federal district court held that the Anti-Defamation League may assert the privilege.

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V. Procedures for issuing and contesting subpoenas

A. What subpoena server must do

There are no special rules under Colorado law for serving a subpoena on a member of the news media. In cases where the media is not a party, the service of a subpoena must comply with the requirements of Rule 45 of the Colorado Rules of Civil Procedure. In cases where the news media is a party to the action, the requirements of Rules 30 and 34 of the Colorado Rules of Civil Procedure must be met. The requirements are similar in criminal courts in Colorado. See generally, Crim. P. Rule 17.

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1. Service of subpoena, time

Under the Rules, to be valid, a subpoena or subpoena duces tecum must show the name of the court, the title of the action and the time and place at which the person is commanded to appear. Rule 45(a); see also Crim. P. Rule 17.

The subpoena must be personally served on the person to whom it is directed and must include the fees for one day's attendance and mileage. Rule 45(c). Under Rule 45(c), a subpoena on a member of the media or any other non-party must be served at least 48 hours before the time for appearance. The Court may, however, permit a shorter notice for good cause shown. The 48-hour rule excludes weekends and holidays. Wilkerson v. State, 830 P.2d 1121 (Colo. App. 1992) (subpoena served on Friday at 11 a.m. for appearance on Monday at 9 a.m. did not comport with prescribed time limits).

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2. Deposit of security

There is no requirement of a security deposit.

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3. Filing of affidavit

Rule 45 requires no showing as to necessity, except where a party schedules the taking of more depositions than those permitted in the Case Management Order. See Rule 30(a)(2). In criminal cases, however, to take a deposition, the party seeking the deposition must file a motion with an accompanying affidavit stating that the witness cannot attend the trial or hearing, or the deposition is necessary to prevent injustice. Crim. P. Rule 15(a). However, the Colorado Court of Appeals has held that the absence of an affidavit does not make the subpoena defective. People v. Hernandez, 899 P.2d 297 (Colo. App. 1995).

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4. Judicial approval

The subpoena may be issued without a court order by an attorney of record or by the clerk of the court in which the action is pending. Issuing a subpoena does not require approval from a judge or magistrate, except in cases where leave of court is required under Rule 30(a)(2).

There is some limitation of a Colorado court's power to compel an individual to appear as a result of a subpoena. Colorado courts do not have the power to compel nonresident witnesses to appear outside Colorado or to produce documents outside Colorado. See Minnesota v. District Court, 395 P.2d 601 (Colo. 1964); Solliday v. District Court, 313 P.2d 1000 (Colo. 1957) (any reference to the service of subpoenas on nonresident witnesses must be read to be subject to the implied limitation that those summoned must be within the jurisdiction of the court or subject to such "jurisdiction" based on a uniform act or compact with a sister state).

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5. Service of police or other administrative subpoenas

An administrative subpoena is constitutionally valid where it is: (1) issued for a lawfully authorized purpose; (2) the information sought is relevant to the inquiry; and (3) the subpoena is sufficiently specific to obtain the necessary documents, but not excessive for the inquiry. People v. Fleming, 804 P.2d 231, 233 (Colo. App. 1990). Probable cause, however, is not required to support an administrative subpoena. See Benson v. People, 703 P.2d 1274 (Colo. 1985). However, it is an abuse of process to issue an administrative or grand jury subpoena for the sole purpose of gathering evidence for a pending criminal prosecution. Fleming, 804 P.2d at 233-34, citing U.S. v. LaSalle National Bank, 437 U.S. 298, 98 S.Ct. 2357, 57 L.Ed.2d 221 (1978); Donaldson v. U.S., 400 U.S. 517, 91 S.Ct. 534, 27 L.Ed.2d 580 (1971).

In Denver Post Corp. v. Colorado Civil Rights Division, 1994 WL 665684, 22 Med. L. Rptr. 2478 (Colo. Dist. Ct., Sept. 26, 1994), the Denver County District Court quashed an administrative subpoena seeking the identity of an advertiser because the subpoena was not issued for a lawfully authorized purpose.

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B. How to Quash

Rule 45 provides guidance regarding the ways to quash a subpoena. Colorado Rule 45 differs from Federal Rule 45 in that there are only two mechanisms a deponent or witness can used to attempt to avoid having to comply with a subpoena duces tecum. Rule 45(b) states that "upon motion made promptly and in any event at or before the time specified in the subpoena for compliance therewith, [a deponent or witness] may (1) Quash or modify the subpoena if it is unreasonable or oppressive, or (2) condition denial of the motion upon the advancement by the person in whose behalf the subpoena is issued of the reasonable cost of producing the books, papers, documents or tangible things."

Rule 45(d)(1) allows any person to whom a deposition subpoena is directed to move for a protective order under Rule 26. Under the requirements of Rule 26, a protective order may be issued where "for good cause shown . . to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense." Under Rule 26, a court has the power to prohibit a deposition from being taken or limit disclosure of the testimony taken during the exam. Rule 26(c)(1). To determine good cause, the court will balance the competing interests that would be served by granting or denying the discovery. Those interests include: Whether the party seeking to prevent disclosure has a legitimate expectation that the information will not be disclosed; the state’s interest in facilitating the truth-seeking process through litigation; and whether disclosure can occur in a less intrusive manner. Williams v. District Court, 866 P.2d 908 (Colo. 1993). The party opposing the discovery must prove "good cause." Cameron v. District Court, 565 P.2d 925 (Colo. 1977).

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1. Contact other party first

Rule 121, § 1-15(8) provides for a duty to confer with opposing counsel where appropriate before filing a motion. It seems that in most, if not all, instances, it would be appropriate to contact counsel serving the subpoena. In addition to this requirement, experience indicates that a dialog between the party and the witness can quickly and cost effectively address many of the issues raised by the subpoena. In Colorado, where the Shield Law provides broad protection for newspersons, a letter or telephone call outlining the privilege can be helpful in narrowing or resolving issues raised by the subpoena.

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2. Filing an objection or a notice of intent

There is no requirement of a notice being filed prior to filing the actual motion. The rule states that, a subpoena duces tecum can be quashed "upon motion made promptly."

There is no provision in the Colorado Rules similar to Fed. R. Civ. P. 45(c)(2)(B), which states that any written notification is sufficient to stay the discovery until a court resolves the matter.

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3. File a motion to quash

a. Which court?

The Motion to Quash should be filed in the same court with jurisdiction over the underlying case.

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b. Motion to compel

Although the newsperson may be content to wait for a motion to compel, it is generally believed that it is more effective to take a proactive stance and file a motion to quash. There are several reasons for this. First, some courts may view a newsperson's inaction as disrespect for the court system. Second, by filing the motion, the newsperson can go on the offensive, thus having more control over the arguments.

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c. Timing

While the Rule requires that the motion to quash be made promptly, it can be filed up to the date and time at which compliance is requested.

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d. Language

Because the outcome of a motion to quash is dependent largely on the specific facts in the case, there is no specific language required in order to get a motion granted. However, at a minimum, the motion should cite to the Shield Law and apply the specific facts to the three-part test. See Section VI, infra.

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e. Additional material

No additional materials must be attached to the motion. However, a newsperson should attach any document or information it believes will help the court evaluate the law and the facts. One example of a helpful document is "Agents of Discovery: A Report on the Incidence of Subpoenas Served on the News Media," the biennial survey of the incidence of news media subpoenas published by the Reporters Committee For Freedom of the Press.

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4. In camera review

a. Necessity

There are no requirements that the court conduct an in camera review of the materials before ruling on a Motion to Quash. Nor are there any requirements that the court conduct an interview of the reporter.

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Because there is no requirement for an in camera review or interview with the reporter, there is no procedure established in Colorado that grants an automatic stay pending appeal under these circumstances. Under the Rule 62(a) of the Colorado Rules of Civil Procedure, a final judgment is automatically stayed for 15 days without further action. However, to protect the reporter's rights if a trial court denies a Motion to Quash, counsel representing a newsperson at a hearing on a Motion to Quash should be certain to request a stay from the court and should also be certain to request a stay should the Court of Appeals rule against the newsperson.

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c. Consequences of refusing

While it is difficult to predict how a court would react to a newsperson refusing to comply with a court order, the most likely consequence of such action is a finding of direct contempt under Colo. R. Civ. P. 107; Gordon, 9 P.3d at 1113 (lower court fine of $5,000 for failure to reveal sources overturned). Under Rule 107, penalties can include fine, a fixed prison sentence or both. Likewise, a party or non-party can be sanctioned or fined under Colo. R. Civ. P. 37 if the party seeking the information succeeds in filing a motion to compel. Rule 37(a)(3); see also Todd v. Bear Valley Apartments, 980 P.2d 973 (Colo. 1999).

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5. Briefing schedule

Under Rule 45(b), a Motion to Quash should be made "promptly and at any event at or before the time specified in the subpoena for compliance therewith." Although Colo. R. Civ. P. Section 1-15(1) sets for a briefing schedule for response and reply briefs, the timing is usually dictated on a case-by-case basis and often is accelerated by an impending trial date.

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6. Amicus briefs

Amicus briefs are permitted at the appellate level. There is no prohibition against submitting an amicus brief to the trial court; however, filing an amicus brief at the trial court level is unusual.

There are media organizations in Colorado that would support an amicus brief opposing the subpoenaing of a newsperson. They include the Colorado Press Association, 303-571-5117; and the individual newspapers, television stations and radio stations throughout the state.

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VI. Substantive law on contesting subpoenas

A. Burden, standard of proof

In opposing a Motion to Quash, the party seeking the information has the burden of proving that (1) the information sought is directly relevant to a substantial issue in the case; (2) there are no other reasonable means of obtaining the information; and (3) the interest in obtaining the information outweighs any First Amendment interest of the newsperson. These three elements must be established by a preponderance of the evidence. C.R.S. §§ 13-90-119(3)(a)–(c).

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B. Elements

1. Relevance of material to case at bar

The Shield Law states that the information sought must be "directly relevant" to a "substantial issue" in a proceeding. Colorado courts have determined when something is directly relevant to a substantial issue on a case by case basis. C.R.S. § 13-90-119(3)(a); Gordon, 9 P.3d at 1118. "In some cases, the confidential information may be the only evidence of a crucial aspect of the case, while in other situations, the information may be only marginally relevant to a less significant issue. Id. In Gordon, the court found that the identity of the source was directly relevant to a substantial issue. "[I]n a media defamation case the information about the reliability of the declarant's source may be relevant to a significant issue of the reporter's state of mind about the truth or falsity of his broadcasts. The less credible the source, the more likely the declarant acted with malice or reckless disregard. . ." Id.

Federal courts, applying a constitutional qualified privilege in Colorado, have determined that the information sought must be "centrally relevant" or "substantially relevant." Re/Max, 846 F. Supp. at 911-12. In Re/Max, the court found that the party seeking the information had not met its burden of proof as to the relevancy. "The only possible value in deposing Rebchook [the reporter] is to impeach Lininger's testimony. . . I conclude that deposing Rebchook offers de minimis impeachment value." Id. at 912.

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2. Material unavailable from other sources

The second prong of the test is whether the information is obtainable through other reasonable means. C.R.S.§ 13-90-119(3)(b). The burden is on the party seeking the information to demonstrate "that no other reasonably available sources of the information exist and that the party has exhausted the reasonably available sources that might provide the information sought." Gordon, 9 P 3d. at 1118.

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a. How exhaustive must search be?

The party must prove it has made "substantial efforts" to obtain the information. Id. "[B]ald assertions that the information cannot be obtained through alternative sources cannot sustain a court's order requiring disclosure by a newsperson asserting the privilege." Id. See also Henderson, 879 P.2d at 393 (newsperson cannot be compelled to disclose information because plaintiff had not sought information about a helicopter's flight path from public aviation authorities and because other witnesses had provided the information sought).

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

The party seeking the information must prove that he or she has already sought the information from other reasonably available sources. For example, in Henderson, the court granted the motion to quash because the plaintiff had not sought the information from other reasonable sources. 879 P. 2d at 393. The plaintiff was seeking information regarding the altitude at which a helicopter had been flying when it passed over a private home. Id. Plaintiff, however, had not sought the information from public aviation authorities. Id. In addition, the information had been provided by the defendants. Id.

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c. Source is an eyewitness to a crime

Colorado courts have not directly addressed whether information obtained from an eyewitness to or participant in a crime is "unavailable" from any other source. However, in Henderson, the defendant was charged with cultivating marijuana based in part on the observations of law enforcement officer who was riding in a television news helicopter. Henderson, 879 P.2d at 392. The defendant subpoenaed the helicopter pilot in an effort to support his claim that the observations from the helicopter were an illegal search, violating his 4th Amendment rights. Id. The helicopter pilot, who was an employee of the television station, asserted the privilege under the Shield Law. Id. at 393. The court found that the pilot's assertion of the privilege was appropriate because the information sought in the subpoena was available from other sources, including the law enforcement officer on board. Id. at 394.

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3. Balancing of interests

The individual seeking information from a newsperson must also show a strong interest in the information that supersedes the newsperson's First Amendment interested. C.R.S. § 13-90-119(3)(c); Henderson, 879 P.2d at 393.

 

In Gordon, the Colorado Supreme Court found that, in considering whether a motion to quash should be granted, the court must balance the interests of the party seeking the information against the First Amendment interests of the newsperson in withholding it and the public's interest in promoting the gathering and reporting of news." Gordon, 9 P.3d at 1119. A key element in that balancing test is the "nature of the claim at issue." Id. In cases where the journalist is a party and that journalist's state of mind is at issue, the "equities weight somewhat more heavily in favor of disclosure." Id., quoting Zerilli v. Smith, 656 F. 2d 705, 714 (D.C. Cir. 1981). Where the newsperson is not a party, but is merely a source of information, "the equities weigh in favor of respecting the privilege." Id. The U.S. District Court for the District of Colorado has, however, declined to stay all discovery for only newsperson defendants, stating that the Shield Law statute is not a wholesale exemption upon newsperson litigants from compliance with discovery rules and schedules. The newspersons were required to answer discovery in a legally prudent manner but could object and invoke the qualified privilege when it deemed the privilege applicable. See General Steel Domestic Sales, LLC, 2008 U.S. Dist. LEXIS 101609, at *17-18.

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4. Subpoena not overbroad or unduly burdensome

Both the civil and criminal rules permit a court to quash a subpoena if it is "unreasonable or oppressive." Any fact a newsperson can convey to the court regarding the burdensomeness of responding to the subpoena is likely to be considered by the court. C.R.S. §§ 13-90-119(3)(a)–(c).

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5. Threat to human life

There is no specific requirement in the rules or case law that the court must weigh whether the matter subpoenaed involves a threat to human life. However, since the court must balance the interest of the person seeking the information against the First Amendment interest of the newsperson and the public, it is conceivable that threat to human life would be one factor in that balancing act.

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6. Material is not cumulative

The Shield Law provides, in part, that a privilege will exist for a newsperson unless the information is not available by any other reasonable means. C.R.S. § 13-90-119(3)(b). As a consequence, if the material is available from another source, the privilege will protect the newsperson. Thus, if the material is cumulative, the newsperson will be able to assert the privilege. See, e.g., Henderson, 879 P.2d at 393 (helicopter pilot can assert the privilege because information available from other sources); Re/Max, 846 F. Supp. at 912 (information sought only of de minimis value).

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7. Civil/criminal rules of procedure

The civil and criminal rules permit a non-party to move to quash a subpoena that is frivolous or unduly burdensome. See Colo. R. Civ. P. 45; Colo. R. Crim. P. 17.

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8. Other elements

To overcome the qualified privilege established by the Shield Law, a party seeking information from a newsperson must establish by a preponderance of the evidence that the information is directly relevant to a substantial issue in the proceeding; there is no reasonable alternative for obtaining the information; and the interest in obtaining the information outweighs the newsperson's First Amendment interest in protecting the information. There are no other elements that must be proved.

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C. Waiver or limits to testimony

1. Is the privilege waivable?

Under the Colorado Press Shield Law it is possible to waive the privilege. However, the statute clarifies that the waiver of the privilege is limited to information actually published, and does not extend to information not actually published, even if this information is related to the subject matter of the published information. C.R.S. § 13-90-119(4). The statute states that the "privilege of nondisclosure established by subsection (2) of this section may be waived only by the voluntary testimony or disclosure of a newsperson that directly addressed the news information or identifies the source of such news information sought. A publication or broadcast of a news report through the mass media concerning the subject area of the news information sought, but which does not directly address the specific news information sought, shall not be deemed a waiver of the privilege of nondisclosure as to such specific news information."

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2. Elements of waiver

a. Disclosure of confidential source's name

The privilege is waived only upon voluntary testimony or disclosure. The information may be disclosed without waiver to an editor or attorney representing the newsperson's organization. Gordon, 9 P.3d at 1119-24.

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b. Disclosure of non-confidential source's name

The privilege is waived only upon voluntary testimony or disclosure. The information may be disclosed without waiver to an editor or attorney representing the newsperson's organization. Gordon, 9 P.3d at 1119-24.

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c. Partial disclosure of information

The information published or broadcast is deemed waived by the publication or broadcast. However, such publication or broadcast does not waive the privilege regarding any of the unpublished or unbroadcast material. C.R.S. § 13-90-119(4).

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d. Other elements

There is no Colorado case law addressing other elements.

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3. Agreement to partially testify act as waiver?

If a newsperson agrees to testify, the privilege is waived only as to the information provided during the testimony. C.R.S. § 13-90-119(4) (emphasis added).

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VII. What constitutes compliance?

A. Newspaper articles

Rule 902 of the Colorado Rules of Evidence provides that newspapers and periodicals are self-authenticating for the purpose of establishing that an article or statement was published. CRE 902(6); see also People v. Morise, 859 P.2d 247, 250 (Colo. App. 1993). However, any statements contained in the article -- when offered as the truth of the matters stated in the article -- are hearsay. Id. Where there is a dispute over authenticity, the editor, reporter or custodian of records can authenticate the fact that the material was published.

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B. Broadcast materials

If the broadcast is being offered in evidence, Rule 1003 of the Colorado Rules of Evidence allows as admissible a duplicate unless a genuine question arises as to the authenticity of the original, or where circumstances would be unfair if the duplicate were admitted.

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C. Testimony vs. affidavits

Rule 108 of the Colorado Rules of Civil Procedure state that an affidavit "may be sworn to either within or without this state before any officer authorized by law."

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D. Non-compliance remedies

1. Civil contempt

There are several possible consequences for a newsperson's refusal to comply with a court's order requiring compliance with a subpoena. Where the newsperson is a party to the proceeding, refusal to comply with a court's order may result in a finding of direct contempt under Colo. R. Civ. P. 107; Gordon, 9 P.3d at 1113 (lower court fine of $5,000 for refusal to reveal sources overturned, $15,000 sanction for evasive and misleading discovery responses not challenged on appeal). Under Rule 107, a court may impose either punitive or remedial sanctions where it concludes that a person has committed disorderly and disruptive behavior, such as actions that unreasonably interrupt the course of judicial proceedings and actions that obstruct the administration of justice. Gordon, 9 P.3d at 1113, n. 5. Penalties can include fine, a fixed prison sentence or both. Colo. R. Civ. P. 107.

Likewise, a party or non-party can be sanctioned or fined under Colo. R. Civ. P. 37 if the party seeking the information succeeds in filing a motion to compel and a court orders compliance. Rule 37(a)(3); see, also, Todd v. Bear Valley Apartments, 980 P.2d 973 (Colo. 1999).

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a. Fines

In Gordon, the defendant talk show host was sanctioned $5,000 for refusing to reveal the identity of sources regarding his news report on an altercation at a bar. Gordon, 9 P.3d at 1111. The talk show host was also sanctioned $15,000 for "obfuscation of the discovery process." Id. at 1113. Under Rule 37, an "evasive or incomplete disclosure, answer or response" is a failure to disclose and is sanctionable. Id, at 1112, n. 4.

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b. Jail

A jail sentence is permitted under Rule 107 in a case where a newsperson refuses to comply with a court order compelling testimony. In People v. Silvers, 99CR2936, Div. 1, an Arapahoe County district judge fined a television reporter $100 and sentenced him to 1 day in jail for violating the court's order compelling him to provide pretrial testimony and evidence in a criminal case. The reporter's sentence was stayed pending appeal. The reporter filed an appeal with the Colorado Court of Appeals, case number 02CA2936, and the appellate court approved the lower ruling in part, and disapproved in part. The there is no record of appeal proceedings and the decision was entered without a published opinion. See 2004 Colo. App. LEXIS 581 (Colo. App. April 8, 2004).

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2. Criminal contempt

In Colorado, criminal contempt is determined by whether the sanctions are punitive or remedial. Punitive sanctions are defined under Rule 107(a)(4) as "[p]unishment by unconditional fine, fixed sentence of imprisonment, or both, for conduct that is found to be offensive to the authority and the dignity of the court." Punitive sanctions may be combined with remedial sanctions.

Before a punitive sanction can be enforced there must be notice, the appointment of a special prosecutor, and a hearing. Rule 107(c), (d)(1). For all intents and purposes, the hearing is similar to a criminal trial in that the accused has, among other things, the right to counsel, the right to a jury trial, the right to enter a plea and the presumption of innocence. See, generally, Knapp, Colorado Civil Procedure Forms and Commentary, §§ 107.12.-15.

The individual charged with contempt is permitted a jury trial if the sentence imposed is more than six months. Rule 107(d)(1), People v. Barron, 677 P.2d 1370, 1374, n. 4 (Colo. App. 1984). If a jury trial is conducted, there is no specific limit to the prison sentence, but if there is no jury trial, the maximum sentence is 180 days. Id. There must be proof beyond a reasonable doubt. Harthun v. District Court, 495 P.2d 539 (Colo. 1972).

Colorado courts urge trial judges to use the contempt power "with caution and self restraint to protect the rights of litigants and he administration of justice, not to protect [the court's] dignity." Estate of Elliot, 993 P.2d 474, 478 (Colo. 2000).

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3. Other remedies

In accordance with Rules 26 and 37 of the Colo. R. Civ. P., trial courts have broad discretion to fashion sanctions for non-compliance with discovery rules. Prefer v. Pharm-NetRx, LLC, 18 P.3d 844 (Colo. App. 2000). The sanctions range from fines to dismissal of claims. The sanction of dismissal of claims is only appropriate for willful or deliberate disobedience of discovery rules. Id.

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VIII. Appealing

A. Timing

1. Interlocutory appeals

Under Colorado Appellate Rules, a final judgment of a district court may be appealed. C.A.R.1. The appellant has 45 days from entry of the judgment to file a notice of appeal. C.A.R. 4.

Where no final order has been entered, a newsperson may seek a writ of mandamus with the Supreme Court. Mandamus is available only upon a showing that judicial discretion has been abused and the harm to the newsperson cannot be cured on appeal. See e.g., Seymour v. District Court, 581 P.2d 302 (Colo. 1978).

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2. Expedited appeals

There are no special statutory procedures in place to address the appeal of an order compelling a newsperson to testify or provide documents. A newsperson could move for an expedited appeal. To succeed, the movant must show a reason why the appeal is time sensitive.

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B. Procedure

1. To whom is the appeal made?

Decisions made by courts of limited jurisdiction in Colorado are appealed to courts of general jurisdiction. As such, decisions by municipal courts of record and county courts must be filed with the district court in the district in which the municipal or county court is located. C.R.S. § 13-6-110, 111, 116-125. The district court on de novo review, may affirm, reverse, remand or modify the judgment. C.R.S. § 13-6-110. The notice of appeal must be filed within 15 days for entry of judgment. Colo. R. Civ. P. 441(a).

Administrative decisions may be reviewed either by the district court or the appellate court, depending on the agency action to be reviewed. In general, judicial review of agency action is guided by C.R.S. § 4-4-106. In appealing an agency decision to the district court, an appellant has 30 days of the effective date of the agency action to file a notice of appeal. C.R.S. § 24-4-106(4). For an appeal to the appellate court, the appellant must file a notice of appeal within 45 days of the effective date of the agency action. C.R.S. § 24-4-106(11). An appellant may also seek relief under Colo. R. Civ. P. 106 for certain actions of city and county agencies. For Shield Law purposes, Rule 106 has been used to challenge a county court's citation for contempt. Jordan v. County Court In and For City and County of Denver, 722 P.2d 450 (Colo. App. 1986). Once a final order is entered in a Rule 106 proceeding, it can be appealed like any other final district court judgment. Milburn v. El Paso County Court, 859 P.2d 909 (Colo. App. 1993).

Under Colorado Appellate Rules, a final judgment of a district court may be appealed. C.A.R.1. The appellant has 45 days from entry of the judgment to file a notice of appeal. C.A.R. 4. Extensions of time "not to exceed thirty days" may be granted at the discretion of the appellate court upon showing "excusable neglect." Id.; Collins v. Boulder Urban Renewal Authority, 684 P.2d 952 (Colo. App. 1984).

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2. Stays pending appeal

Rule 62 of the Colorado Rules of Civil Procedure provide for an automatic stay of any final judgment for 15 days from the date of the ruling. If there is no final judgment, counsel for the newsperson should request a stay pending appeal. If a motion to stay under Rule 62 is denied, an application may be made to the appellate court under Colorado Appellate Rule 8. Please note that the appellate court does not acquire jurisdiction to entertain the motion for stay until a notice of appeal is filed.

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3. Nature of appeal

Under Colorado Appellate Rules, a final judgment of a district court may be appealed. C.A.R.1. The appellant has 45 days from entry of the judgment to file a notice of appeal. C.A.R. 4.

Where no final order has been entered, a newsperson may file an original proceeding with the Supreme Court. Mandamus is available only upon a showing that judicial discretion has been abused and the harm to the newsperson cannot be cured on appeal. See e.g., Seymour v. District Court, 581 P.2d 302 (Colo. 1978).

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4. Standard of review

In general, discovery rulings are reviewed under an abuse of discretion standard. See, generally, J.P. v. District Court, 873 P.2d 745 (Colo. 1994); Sheid v. Hewlett Packard, 826 P.2d 396 (Colo. App. 1991) (abuse of discretion standard used to determine validity of sanction award by district court under Rule 37).

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5. Addressing mootness questions

The mootness issue has not specifically been addressed in Colorado in the context of a subpoena of a newsperson. In general, a case is moot where there no longer is a justiciable, actual controversy, unless the issue is capable of repetition and would otherwise evade review. Humphrey v. Southwestern Development Co., 734 P.2d 637 (Colo. 1987). In the case of People v. Silvers, supra, a trial court judge sentenced a reporter to one day in jail and a $100 fine for refusing to comply with a subpoena, but granted a stay pending appeal. The trial was conducted by a different judge, and the reporter was issued another subpoena to testify. The reporter again moved to quash and the second motion was granted. While it appears that the contempt proceeding ended due to mootness, no confirming record is available.

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6. Relief

On an appeal of a Motion to Quash that has been denied, counsel should request that the court of appeals outline the test to be applied and request that the trial judge reconsider the issues in light of the appellate ruling. See, e.g., Gordon, 9 P.3d 1106, 1124. Other types of relief the appellate court can provide include reversing a lower court's order of contempt and vacating a lower court's order compelling responses to a subpoena. Id.

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IX. Other issues

A. Newsroom searches

The federal Privacy Protection Act (42 U.S.C. 2000aa) is incorporated by reference into the Shield Law. Section 13-90-119 explicitly states that no provisions in the Shield Law will "preclude the issuance of a search warrant in compliance with the federal Privacy Protection Act of 1980." C.R.S. § 13-90-119(6). Although not specifically addressing the Privacy Protection Act, the Colorado Supreme Court has ruled that the Colorado Constitution provides important protections where the right to receive and distribute information are concerned. Tattered Cover, Inc. v. City of Thornton, 44 P.3d 1044 (Colo. 2002). In Tattered Cover, the Supreme Court found that, because of the fundamental rights implicated, the police could not execute a search warrant to recover receipts from a book store except for a showing of a compelling need that outweighs the privacy interests of the book store and its customers and a sufficient connection between the information sought and the criminal investigation. Id.

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B. Separation orders

No reported cases in Colorado.

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C. Third-party subpoenas

While there are no cases specifically addressing the question of third-party subpoenas in media cases, in Colorado v. Thill, 98CR621 (Colo. Dist. Ct. Feb. 5, 1999), a criminal case, a Denver District Court judge excluded as improperly obtained evidence of a television reporter's telephone records, which, without using a subpoena, the defense had obtained directly from the reporter's cellular carrier. The defense had contacted the telephone company directly after the court quashed its subpoena directed at forcing the reporter to testify as to the identity of a source. See also Tattered Cover, Inc. v. City of Thornton, 44 P.3d 1044 (Colo. 2002) (privacy and first amendment rights upheld against third party search warrant).

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D. The source's rights and interests

No reported cases in Colorado.

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