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D.C. Cir.

Reporters Privilege Compendium

Charles D. Tobin
tobinc@ballardspahr.com
Adrianna C. Rodriguez
rodriguezac@ballardspahr.com
Kristel Tupja
tupjak@ballardspahr.com
Maxwell S. Mishkin
mishkinm@ballardspahr.com
Ballard Spahr LLP
1909 K Street NW
12th Floor
Washington, D.C. 20006
202-661-2200 (phone)
202-661-2299 (fax)
www.ballardspahr.com

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I. Introduction: History & Background

Several high profile cases—including one involving the jailing of a New York Times reporter who defied a court order to reveal her source to a grand jury—have shaped the current landscape of the reporter’s privilege within the D.C. Circuit.  These cases have reinforced the existence of a First Amendment privilege in the civil context, increased the challenge to asserting the privilege in the grand jury context, and raised the possibility of a federal common law reporter’s privilege available in all contexts.

The D.C. Circuit recognizes a qualified First Amendment privilege in civil cases against compelled disclosure of sources and other unpublished information.  The court applies a two-prong test to determine whether the privilege is overcome: (1) the party seeking the information has exhausted all reasonable, alternative means of identifying the source; and (2) the information goes to the heart of that party’s case.  Lee v. Dep’t of Justice, 413 F.3d 53 (D.C. Cir. 2005); see also Goldberg v. Amgen, Inc., 123 F. Supp. 3d 9 (D.D.C. 2015); Estate of Klieman v. Palestinian Auth., 293 F.R.D. 235 (D.D.C. 2013); Peck v. City of Boston (In re Slack), 768 F. Supp. 2d 189 (D.D.C. 2011); Saperstein v. Palestinian Auth. (In re Goldberg), 693 F. Supp. 2d 81 (D.D.C. 2010); Hatfill v. Gonzales, 505 F. Supp. 2d 33 (D.D.C. 2007); CFTC v. McGraw-Hill Cos., Inc., 507 F. Supp. 2d 45 (D.D.C. 2007); Mgmt. Info. Techs., Inc. v. Alyeska Pipeline Serv. Co., 151 F.R.D. 471 (D.D.C. 1993); Palandjian v. Pahlavi, 103 F.R.D. 410 (D.D.C. 1984).

Some case law indicates that the court should apply a third factor as well, balancing the public’s interest in protecting the newsgathering process against the private interest in disclosure. This third factor, however, remains a topic of active judicial debate in this Circuit.  Compare Lee v. Dep’t of Justice, 428 F.3d 299 (D.C. Cir. 2005) (Tatel & Garland, JJ., dissenting from denial of rehearing en banc) (arguing that courts should weigh the information-seeking party’s “private interest” in the lawsuit against “the public’s interest in protecting journalists’ ability to report without reservation on sensitive issues”), and Grunseth v. Marriott Corp., 868 F. Supp. 333, 335-36 (D.D.C. 1994) (“Plaintiff has demonstrated no overwhelming or compelling societal interest in overcoming the presumption of favoring First Amendment protections for a reporter’s sources”), with Lee v. Dep’t of Justice, 401 F. Supp. 2d 123 (D.D.C. 2005) (characterizing the proposed public/private interest balancing test as “inherently unworkable”), and Hatfill v. Gonzales, 505 F. Supp. 2d 33 (D.D.C. 2007) (“without controlling precedent from the Circuit that the public interest balancing element is a necessary protection for reporters, the Court must decline to employ it”).

The privilege remains strongest in civil cases where the journalist or news organization is not a party.  E.g., Zerilli v. Smith, 656 F.2d 705 (D.C. Cir. 1981).  The courts also will evaluate the privilege, but afford it somewhat less weight, in civil cases where the press is a party.  E.g., Carey v. Hume, 492 F.2d 631 (D.C. Cir. 1974) (affirming district court order directing journalists to identify sources who were eyewitnesses to events at issue).

The qualified First Amendment privilege also is recognized in enforcement actions by federal agencies, although it is not quite as strong as in the civil context.  CFTC v. McGraw-Hill Cos., Inc., 390 F. Supp. 2d 27 (D.D.C. 2005); CFTC v. Whitney, 441 F. Supp. 2d 61 (D.D.C. 2006).

The D.C. Circuit has split on whether to recognize a First Amendment reporter’s privilege in the grand jury context.  In re Miller, 397 F.3d 964 (D.C. Cir. 2005), opinion superseded by 438 F.3d 1141 (D.C. Cir. 2006).  That case, which involved grand jury subpoenas that were sent to several journalists, resulted in four different opinions from the three-judge panel.  First, writing for the court, Judge Sentelle found no First Amendment privilege with regard to grand jury subpoenas and stated that even if a common law privilege exists, it was overcome on the facts.  Second, in a separate concurrence, Judge Sentelle argued that there is no common law reporter’s privilege in the grand jury context.  Third, Judge Henderson concurred separately to advocate for a narrow holding that “any federal common-law reporter’s privilege that may exist is not absolute and that the . . . evidence defeats whatever privilege we may fashion.”  Fourth, Judge Tatel concurred in the judgment alone and wrote that while some “First Amendment safeguards” must exist for reporters who receive grand jury subpoenas, there were “no grounds for a First Amendment challenge to the subpoenas at issue here,” and likewise that while “the consensus of forty-nine states plus the District of Columbia . . . would require us to protect reporters’ sources as a matter of federal common law,” that common law privilege would be overcome based on the harm caused by the leak at issue and the grand jury’s demonstrated need for the reporters’ testimony.  The press may still seek protection from the court where harassment or bad faith can be established, however.  In re Special Counsel Investigation, 332 F. Supp. 2d 26 (D.D.C. 2004).

Some case law recognizes the privilege in criminal proceedings outside the grand jury context, which cannot be overcome unless the party seeking the information shows a compelling need for the information.  E.g., United States v. Ahn, 231 F.3d 26 (D.C. Cir. 2000) (affirming district court’s granting of reporters’ motion to quash, where subpoena would have required reporters to reveal sources of story, on the grounds that their testimony was irrelevant); United States v. Hubbard, 493 F. Supp. 202, 205 (D.D.C. 1979) (quashing subpoena from criminal defendant to reporter on ground of “newsman’s privilege” where alternate means of obtaining the requested information existed and “the testimony of the reporter would be far less than necessary to a fair resolution of this case”).  A more recent opinion, however, calls into question the application of the privilege in the criminal context. United States v. Libby, 432 F. Supp. 2d 26 (D.D.C. 2006) (declining to recognize a First Amendment privilege at trial stage of criminal prosecution).

Certain D.C. Circuit opinions suggest that arguments for a common law privilege, in civil and criminal contexts, may be fruitful.  The D.C. Circuit has never expressly rejected the common law privilege.  In re Miller, 397 F.3d 964 (D.C. Cir. 2005), opinion superseded by 438 F.3d 1141 (D.C. Cir. 2006) (no need to decide whether common law reporter’s privilege exists because it would be overcome on the facts).  Moreover, Judge Tatel has authored several well-reasoned concurrences in the D.C. Circuit that strongly advocate for this privilege.  See In re Miller, 397 F.3d 964 (D.C. Cir. 2005) (Tatel, J., concurring in the judgment), opinion superseded by 438 F.3d 1141 (D.C. Cir. 2006); In re Miller, 405 F.3d 17 (D.C. Cir. 2005) (Tatel, J. concurring in denial of rehearing en banc).  Several district court opinions, however, have rejected the existence of a common law privilege.  See Hatfill v. Gonzales, 505 F. Supp. 2d 33 (D.D.C. 2007) (refusing to recognize common law reporter’s privilege); In re Special Counsel Investigation, 338 F. Supp. 2d 16 (D.D.C. 2004) (same); Lee v. Dep’t of Justice, 401 F. Supp. 2d 123 (D.D.C. 2005) (same).

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II. Authority for and source of the right

A. Shield law statute

While the D.C. Circuit itself has not yet addressed the issue, decisions from the district court suggest that the D.C. Free Flow of Information Act, D.C. Code §§ 16-4701 et seq., does not apply in federal causes of action in federal court.  Lee v. Dep’t of Justice, 287 F. Supp. 2d 15 (D.D.C. 2003) (“Evidentiary privileges in cases arising under federal substantive law in federal court are governed exclusively by the federal law of privilege.”); In re Special Counsel Investigation, 332 F. Supp. 2d 26, 32 (D.D.C. 2004) (same).  The D.C. shield law’s protections may be available, however, in cases before the district court on diversity jurisdiction.  Gray v. Hoffman-La Roche, Inc., 2002 WL 1801613, at *1 (D.D.C. Mar. 27, 2002) (applying D.C. shield law and granting motion to quash third party subpoena to journalist); Grunseth v. Marriott Corp., 868 F. Supp. 333, 336-37 (D.D.C. 1994) (same).

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B. State constitutional provision

Not applicable.

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C. Federal constitutional provision

The D.C. Circuit holds that the First Amendment confers on the news media a qualified privilege against compelled disclosure.  “The First Amendment guarantees a free press primarily because of the important role it can play as a ‘vital source of public information.’ . . . But the press’ function as a vital source of information is weakened whenever the ability of journalists to gather news is impaired.  Compelling a reporter to disclose the identity of a source may significantly interfere with [the press’] news gathering ability.”  Zerilli v. Smith, 656 F.2d 705, 710-11 (D.C. Cir. 1981) (citations omitted); Lee v. Dep’t of Justice, 413 F.3d 53, 59-60 (D.C. Cir. 2005).

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D. Other sources

While not commanding a majority of the Circuit, several opinions have expressed strong support for a common law reporter’s privilege.  See In re Miller, 397 F.3d 964 (D.C. Cir. 2005) (Tatel, J., concurring in the judgment), opinion superseded by 438 F.3d 1141 (D.C. Cir. 2006); In re Miller, 405 F.3d 17 (D.C. Cir. 2005) (Tatel, J. concurring in denial of rehearing en banc); United States v. Libby, 432 F. Supp. 2d 26 (D.D.C. 2006).  But see Hatfill v. Gonzales, 505 F. Supp. 2d 33 (D.D.C. 2007) (refusing to recognize common law reporter’s privilege); In re Special Counsel Investigation, 338 F. Supp. 2d 16 (D.D.C. 2004) (same); Lee v. Dep’t of Justice, 401 F. Supp. 2d 123 (D.D.C. 2005) (same).

The common law privilege stems from Rule 501 of the Federal Rules of Evidence, which authorizes federal courts to develop evidentiary privileges in federal question cases according to “the principles of the common law as they may be interpreted . . . in light of reason and experience.”  In re Miller, 397 F.3d at 989 (Tatel, J., concurring in the judgment).  Judge Tatel, the Circuit’s leading proponent of the common law privilege, has explained that “reason and experience” call for recognition of the privilege given that 49 states and the District of Columbia recognize at least a qualified reporter’s privilege; the federal courts have routinely limited discovery of sources in both civil and criminal contexts; and Justice Department guidelines for issuing subpoenas to reporters establish a federal policy of protecting newsgathering.  Id. at 995.

Per Judge Tatel’s formulation, the qualified common law privilege is overcome only where (1) the requesting party demonstrates a sufficient need for the information; (2) that party has exhausted alternative sources for the information, and (3) the court determines that “the public interest in protecting a reporter’s sources” is outweighed by “the private interest in compelling disclosure.”  Id. at 997-98.

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III. Scope of protection

A. Generally

D.C. federal courts have extended the qualified reporter’s privilege to both confidential information and unpublished, nonconfidential information.  Peck v. City of Boston (In re Slack), 768 F. Supp. 2d 189, 194 (D.D.C. 2011) (explaining that not extending the qualified privilege to both confidential and nonconfidential information “would risk the symbolic harm of making journalists appear to be an investigative arm of the judicial system, the government or private parties”) (citing Gonzales v. NBC, Inc., 194 F.3d 29, 35 (2d Cir. 1999)).  In either situation, the litigant seeking disclosure can overcome the privilege only by showing that: (1) they have exhausted all reasonable alternative means of identifying the source; and (2) the information sought goes to the heart of their case.  E.g., Tripp v. Dep’t of Def., 284 F. Supp. 2d 50 (D.D.C. 2003); Maughan v. NL Indus., 524 F. Supp. 93, 95 (D.D.C. 1981) (discovery of material developed in preparation of news report is as “invidious” as compelled disclosure of sources).

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B. Absolute or qualified privilege

The protection against disclosure of sources and news or information is a qualified privilege under D.C. federal case law.  E.g., Hutira v. Islamic Republic of Iran, 211 F. Supp. 2d 115, 118 (D.D.C. 2002) (qualified First Amendment privilege may be overcome by a sufficient showing from the party seeking the information).  The D.C. Circuit has stated that if a federal common law privilege were to exist, it would be similarly qualified.  In re Miller, 397 F.3d 964 (D.C. Cir. 2005), opinion superseded by 438 F.3d 1141 (D.C. Cir. 2006).

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C. Type of case

1. Civil

The reporter’s privilege is at its strongest in the context of civil litigation.  The D.C. Circuit has explained that in “the ordinary case,” the privilege should prevail over civil litigants’ interests:

Although [Branzburg v. Hayes, 408 U.S. 665 (1972)] may limit the scope of the reporter’s First Amendment privilege in criminal proceedings, this circuit has previously held that in civil cases, where the public interest in effective criminal law enforcement is absent, that case is not controlling . . . .  In general, when striking the balance between the civil litigant’s interest in compelled disclosure and the public interest in protecting a newspaper’s confidential sources, we will be mindful of the preferred position of the First Amendment and the importance of a vigorous press. . . .  Thus, in the ordinary case, the civil litigant’s interest in disclosure should yield to the journalist’s privilege.

Zerilli v. Smith, 656 F.2d 705, 711-12 (D.C. Cir. 1981); see also Lee v. Dep’t of Justice, 413 F.3d 53 (D.C. Cir. 2005) (reaffirming privilege in civil cases); Goldberg v. Amgen, Inc., 123 F. Supp. 3d 9, 15 (D.D.C. 2015); CFTC v. McGraw-Hill Cos., Inc., 390 F. Supp. 2d 27 (D.D.C. 2005) (“in civil cases, the privilege typically prevails because any interest in overcoming the privilege is by definition a private rather than a public interest”); Mgmt. Info. Techs., Inc. v. Alyeska Pipeline Serv. Co., 151 F.R.D. 471 (D.D.C. 1993) (“[t]he D.C. Circuit has made it clear that in a civil case the reporter’s privilege is entitled to great weight”).

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2. Criminal

D.C. Circuit case law recognizes the reporter’s privilege in criminal proceedings outside the grand jury context unless the party seeking the information shows a compelling need for the information.  E.g., United States v. Ahn, 231 F.3d 26 (D.C. Cir. 2000) (affirming district court’s granting of reporters’ motion to quash where subpoena would have required reporters to reveal sources, on the basis that such testimony was irrelevant); United States v. Hubbard, 493 F. Supp. 202, 205 (D.D.C. 1979) (quashing subpoena from criminal defendant to reporter on ground of “newsman’s privilege” where alternate means of obtaining the requested information existed and “the testimony of the reporter would be far less than necessary to a fair resolution of this case”).  A more recent opinion, however, calls into question the application of the privilege in the criminal context.  United States v. Libby, 432 F. Supp. 2d 26 (D.D.C. 2006) (declining to recognize a First Amendment privilege at trial stage of criminal prosecution).

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3. Grand jury

The D.C. Circuit has split on whether to recognize a First Amendment reporter’s privilege in the grand jury context.  In re Miller, 397 F.3d 964 (D.C. Cir. 2005), opinion superseded by 438 F.3d 1141 (D.C. Cir. 2006).  That case, which involved grand jury subpoenas being sent to several journalists, resulted in four different opinions from the three-judge panel.  First, writing for the court, Judge Sentelle found no First Amendment privilege with regard to grand jury subpoenas and stated that even if a common law privilege exists, it was overcome on the facts.  Second, in a separate concurrence, Judge Sentelle argued that there is no common law reporter’s privilege in the grand jury context.  Third, Judge Henderson concurred separately to advocate for a narrow holding that “any federal common-law reporter’s privilege that may exist is not absolute and that the . . . evidence defeats whatever privilege we may fashion.”  Fourth, Judge Tatel concurred in the judgment alone and wrote that while some “First Amendment safeguards” must exist for reporters who receive grand jury subpoenas, there were “no grounds for a First Amendment challenge to the subpoenas at issue here,” and likewise that while “the consensus of forty-nine states plus the District of Columbia . . . would require us to protect reporters’ sources as a matter of federal common law,” that common law privilege would be overcome based on the harm caused by the leak at issue and the grand jury’s demonstrated need for the reporters’ testimony.

Even in the grand jury context, however, it is clear that the press may seek protection from the court where harassment or bad faith is demonstrated.  In re Special Counsel Investigation, 332 F. Supp. 2d 26 (D.D.C. 2004); see also Reporters Comm. for Freedom of Press v. AT&T Co., 593 F.2d 1030, 1049 (D.C. Cir. 1978) (journalists “have no right to resist good faith subpoenas duces tecum directed at a third-party’s business records” in criminal context) (emphasis added); In re Grand Jury 95-1, 59 F. Supp. 2d 1, 8 (D.D.C. 1996) (well established rule for evaluating subpoenas under Fed. R. Crim. P. 17(c) applies to subpoenas implicating the First Amendment); In re Possible Violations of 18 U.S.C. 371, 641, 1503, 564 F.2d 567 (D.C. Cir. 1977) (government need not make preliminary showing before journalist can be compelled to appear before a grand jury; journalist not immune from questioning absent bad faith or harassment).

In In re Grand Jury 95-1, the district court declined to distinguish between subpoenas by which journalists are called on to testify about criminal conduct that they observe and those seeking testimony about the journalists’ general newsgathering and editorial functions, stating that “[t]he line should be drawn at the nature of the proceeding; not depending on how the reporter obtained the information.”  59 F. Supp. 2d at 13.  However, in United States v. Libby, the court held that no First Amendment privilege from a Rule 17(c) subpoena could apply where the reporter was personally involved in the activities that are the predicate for the criminal offense.  432 F. Supp. 2d 26, 44 (D.D.C. 2006).

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D. Information and/or identity of source

The qualified privilege specifically protects the identity of a source absent a compelling need for disclosure, i.e., that the source’s identity is crucial to the matter and the party seeking the information has exhausted all other reasonable alternative means of obtaining the information. E.g., Zerilli v. Smith, 656 F.2d 705, 713 (D.C. Cir. 1981); Grunseth v. Marriott Corp., 868 F. Supp. 333, 335 (D.D.C. 1994).

Case law from this Circuit also suggests that the privilege protects information that implicitly identifies a source.  For example, in Tavoulareas v. Piro, 93 F.R.D. 35 (D.D.C. 1981), the court determined that whether defendant The Washington Post could be compelled to respond to the plaintiff’s discovery requests depended in part on whether the responses would reveal the identities of any confidential sources.  Indeed, the court held that “[t]o the extent . . . that The Post concludes in exercise of good faith that a particular response may expose a source to whom the defendants have extended an assurance of confidentiality, The Post need not answer.”  Id. at 40 (emphasis added); see also NLRB v. Mortensen, 701 F. Supp. 244, 247 (D.D.C. 1988) (rejecting argument that First Amendment interests were not implicated where litigant sought confirmation or verification of statements and not the identity of confidential sources, as “[r]egardless of whether the movant seeks confidential or non-confidential sources, or whether they seek disclosure or verification of statements, the [movant] is attempting to examine the reportorial and editorial process”).

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E. Confidential and/or nonconfidential information

Looking to other jurisdictions for guidance, courts in this Circuit have observed that a party seeking nonconfidential information generally may prevail on a lesser showing of need and materiality than one seeking the identity of confidential sources.  E.g., Goldberg v. Amgen, Inc., 123 F. Supp. 3d 9, 13 (D.D.C. 2015) (applying a “less rigorous standard” of review to plaintiff’s request for nonconfidential information in recognition of similar holdings in other courts); NLRB v. Mortensen, 701 F. Supp. 244, 248 (D.D.C. 1988) (holding that subpoenas seeking authentication of quotes published in The Washington Post necessarily implicate journalists’ First Amendment interests, applying Branzburg balancing test, and ordering journalists to comply with subpoenas); but see Tripp v. Dep’t of Def., 284 F. Supp. 2d 50 (D.D.C. 2003) (“While the D.C. Circuit has never ruled directly on the issue, other Circuits, as well as District Courts within this Circuit, have concluded that the qualified ‘reporter's privilege’ protects both confidential and non-confidential information obtained by the reporter during the course of the reporter’s newsgathering efforts.”); cf. Tavoulareas v. Piro, 93 F.R.D. 35 (D.D.C. 1981) (protecting confidential sources while requiring The Washington Post to answer questions regarding once-confidential sources discovered through plaintiff’s alternative efforts).  In Hutira v. Islamic Republic of Iran, 211 F. Supp. 2d 115, 119 (D.D.C. 2002), the court surveyed other decisions addressing whether the qualified privilege applies to information regardless of confidentiality, concluding that nonconfidential information is privileged.  The court stated, however, that it needed to take the nonconfidential nature of the privilege into account because “journalists have a stronger interest against compelled disclosure of confidential information than they do non-confidential information.”  Id. at 121.

In this Circuit, with respect to newsgathering materials other than source-identifying information, the balance of interests test applies whether the material sought is confidential or nonconfidential.  E.g., Maughan v. NL Indus., 524 F. Supp. 93, 95 (D.D.C. 1981) (compelling a reporter to produce material such as personal notes constitutes a “significant intrusion into and certainly a chilling effect upon the newsgathering and editorial process,” and thus the “compelled production of such materials is equally as invidious as the compelled disclosure of . . . confidential informants”) (internal marks omitted); Palandjian v. Pahlavi, 103 F.R.D. 410 (D.D.C. 1984) (same).

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F. Published and/or non-published material

In this Circuit, the reporter’s privilege protects not only the sources of a reporter’s information, but also a reporter’s notes, diaries, and any other material generated in connection with the editorial process.  Maughan v. NL Indus., 524 F. Supp. 93, 95 (D.D.C. 1981) (compelling reporter to produce material such as personal notes constitutes a “significant intrusion into and certainly a chilling effect upon the newsgathering and editorial process,” and thus “compelled production of such materials is equally as invidious as the compelled disclosure of . . . confidential informants”) (internal marks omitted); Palandjian v. Pahlavi, 103 F.R.D. 410 (D.D.C. 1984) (same).

Concurring in the judgment in In re Miller, 397 F.3d 964 (D.C. Cir. 2005), opinion superseded by 438 F.3d 1141 (D.C. Cir. 2006), Judge Tatel refused to assign any importance to the fact that the reporters there did not reveal the information obtained from the confidential source, the identity of which was sought by the Special Counsel investigating the leak of classified information involving the identity of a CIA covert agent.  As Judge Tatel explained:

Narrowly drawn limitations on the public’s right to evidence, testimonial privileges apply only where necessary to achieve [their] purpose, and in this case the privilege’s purpose is to promote dissemination of useful information.  It thus makes no difference how these reporters responded to the information received, any more than it matters whether an attorney drops a client who seeks criminal advice (communication subject to the crime-fraud exception) or a psychotherapist seeks to dissuade homicidal plans revealed during counseling (information Jaffe suggested would not be privileged).  In all such cases, because the communication is unworthy of protection, recipients’ reactions are irrelevant to whether their testimony may be compelled in an investigation of a source.

Id. at 1003 (Tatel, J., concurring in the judgment) (citations and internal marks omitted).

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G. Reporter's personal observations

Case law suggests that, at least in the grand jury context, whether a subpoena concerns the reporter’s direct observations is of no legal significance.  In re Grand Jury 95-1, 59 F. Supp. 2d 1, 8 (D.D.C. 1996) (rejecting distinction between subpoenas seeking testimony from journalists about criminal conduct they observe and write about and those seeking testimony about general newsgathering and editorial functions).  However, in United States v. Libby, the court held that no First Amendment privilege from a Rule 17(c) subpoena could apply where the reporter was personally involved in the activities that are the predicate for the criminal offense.  432 F. Supp. 2d 26, 44 (D.D.C. 2006).

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H. Media as a party

The D.C. Circuit has noted that when the media is a party to litigation, the equities generally weigh more heavily in favor of disclosure.  Zerilli v. Smith, 656 F.2d 705, 714 (D.C. Cir. 1981).  For instance, in SEC v. McGoff, the D.C. Circuit concluded that subpoenas duces tecum issued by the SEC in its investigation of a publisher and his media companies were not overly broad and subject to First Amendment objection because the publisher was not a disinterested third party, but rather was the principal actor in the matters the SEC sought to investigate.  647 F.2d 185 (D.C. Cir. 1981).  The court held that the SEC had demonstrated a substantial relationship between the information sought and an important government interest, but it also approved of the lower court’s decision to allow the publisher “to retain documentation relating solely to ‘editorial policy’ or news gathering.”  Id. at 192; see also Mgmt. Info. Techs., Inc. v. Alyeska Pipeline Serv. Co., 151 F.R.D. 471, 477 (D.D.C. 1993) (a “leading indicator for the importance of the reporter’s information to the case is whether the reporter is a party”); Tripp v. Dep’t of Def. 284 F. Supp. 2d 50 (D.D.C. 2003) (same).

In Anderson v. Nixon, 444 F. Supp. 1195 (D.D.C. 1978), the court required the journalist-plaintiff to answer questions in depositions regarding confidential sources, warning that refusal to answer would result in default.  The court further suggested that the plaintiff had waived his qualified privilege by initiating and maintaining the lawsuit.  Id. at 1199-200.

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I. Defamation actions

Even in defamation cases involving a media defendant, the Circuit’s general balancing test should be used to determine whether the reporter’s privilege bars the compelled disclosure of sources or other information.  Zerilli v. Smith, 656 F.2d 705, 714 (D.C. Cir. 1981) (“disclosure is by no means automatic in libel cases”).  Thus, a defamation plaintiff, as in any other case, must show the relevance of the sources’ identities to the plaintiff’s case—particularly as it affects plaintiff’s burden of proof—as well as the absence of alternative means of obtaining the information or the exhaustion of every reasonable alternative source of information.  Dowd v. Calabrese, 577 F. Supp. 238, 244 (D.D.C. 1983).  If the plaintiff fails to satisfy this burden, the privilege will prevail.

The privilege, however, may not be used as a sword and a shield:  The courts will not permit a journalist-defendant to use the existence of unidentified sources as evidence of truth or lack of actual malice.  Id. at 244.  By contrast, if the disclosure would go only to a facet of the case that would, at most, involve a collateral matter, and result in cumulative evidence undermining the reporter’s credibility, the privilege will prevail.  E.g., Liberty Lobby, Inc. v. Rees, 111 F.R.D. 19, 22 (D.D.C. 1986); Dowd, 577 F. Supp. 238.  Mere speculation that a source does not exist or will say the reporter published inaccurate information is not sufficient to overcome the privilege.  Liberty Lobby, 111 F.R.D. at 22 n.3; Dowd, 577 F. Supp. at 241.  Conversely, if the unidentified source is the basis for the statement at the heart of the libel action, i.e., the only source of the story, the equities generally weigh in favor of disclosure.  Carey v. Hume, 492 F.2d 631 (D.C. Cir. 1974) (privilege overcome because identity of source was central to plaintiff’s proof); Liberty Lobby, 111 F.R.D. at 21; Dowd, 577 F. Supp. at 243 n.17.

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IV. Who is covered

The D.C. Circuit does not make the reporter’s privilege available only to those persons working for established publications or programs.  Rather, the Circuit looks broadly at whether the person seeking to invoke the privilege intended to disseminate information to the public.

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A. Statutory and case law definitions

1. Traditional news gatherers

a. Reporter

In Liberty Lobby, Inc. v. Rees, 111 F.R.D. 19, 20 (D.D.C. 1986), the court held that the reporter’s privilege “is not limited to the writers of large established newspapers and media enterprises but is equally applicable to the sole publisher of a newsletter or other writing or paper distributed to the public to inform, to comment or to criticize, albeit such a publication may be unpopular in the eyes of many of its potential readers.”  Similarly, in Alexander v. FBI, the court held that “whether a person is a journalist, and thus protected by the privilege, must be determined by the person’s intent at the inception of the information-gathering process.”  186 F.R.D. 21, 50 (D.D.C. 1998) (citing von Bulow v. von Bulow, 811 F.2d 136, 142 (2d. Cir. 1987)).  Thus, “an individual successfully may assert the journalist’s privilege if he is involved in activities associated with gathering and dissemination of news, even though he may not ordinarily be a member of the institutionalized press.”  Id. (internal marks omitted).  The person asserting the privilege should support the claim by “demonstrat[ing] through competent evidence, the intent to use material—sought, gathered, or received—to disseminate information to the public and that such intent existed at the inception of the newsgathering process.”  Id. (internal marks omitted).

As the court explained, whether someone falls within the scope of the definition of a journalist or reporter is essentially a question of fact.  Id.  The court noted that “prior experience as a professional journalist may be persuasive evidence of present intent to gather for the purpose of dissemination and that the primary relationship between the one seeking to invoke the privilege and his sources must have as its basis the intent to disseminate the information to the public garnered from that relationship.”  Id. (internal marks omitted).  In Alexander, therefore, the court determined that former Clinton White House aide George Stephanopoulos could invoke the privilege when he made an adequate showing that, at the time he acquired information for his book, his intent was to disseminate the information to the public.  Id.  Stephanopoulos offered additional evidence that he made regular appearances as a news commentator and news analyst on a Sunday morning television program.  Id.  Likewise, in Tripp v. Department of Defense, the court applied this same analysis and found that a reporter for military publication Stars and Stripes should receive First Amendment protections.  284 F. Supp. 2d 50, 57-58 (D.D.C. 2003).

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b. Editor

No statutory or case law addressing this issue exists.

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c. News

No statutory or case law addressing this issue exists.

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d. Photo journalist

No statutory or case law addressing this issue exists.

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e. News organization/medium

The D.C. Circuit has not expressly determined what qualifies as a “news organization.”  Rather, in United States v. Hubbard, 493 F. Supp. 202, 205 (D.D.C. 1979), the court rejected the notion that a journalist reporting for a newspaper should be distinguished from an author writing a book on his own.  Noting that reporters normally receive salaries for their newsgathering efforts, the court ruled that whether newsgathering is conducted for financial gain is legally irrelevant, stating, “Such financial gain does not taint the importance of the services to our cherished first amendment goals.”  Id.  Citing the Supreme Court’s decision in Lovell v. City of Griffin, 303 U.S. 444, 452 (1938), the court wrote that the reporter’s privilege must encompass all newsgathering efforts, not simply those for newspapers: “‘The press in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion.’”  Id.

Likewise relying on Lovell, legislative history, Defense Department directives, and an affidavit of the Stars and Stripes Editorial Director, the district court held in Tripp v. Department of Defense that the military publication Stars and Stripes is a newspaper and therefore should receive First Amendment protections.  284 F. Supp. 2d 50, 55-57 (D.D.C. 2003).

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2. Others, including non-traditional news gatherers

The U.S. Supreme Court has instructed that the concept of “press” must be given broad meaning, stating that “[t]he press in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion.”  Lovell v. City of Griffin, 303 U.S. 444, 452 (1938).  This suggests that for purposes of the reporter’s privilege, the “press” includes non-traditional newsgatherers.  Alexander v. FBI, 186 F.R.D. 21, 50 (D.D.C. 1998).

In this Circuit, the privilege has been extended to the publisher of daily and bi-weekly indices and price ranges for the natural gas market, where the information at issue was based, in part, on transaction data submitted by participating companies as well as additional factors that may affect the market.  CFTC v. McGraw-Hill Cos., Inc., 390 F. Supp. 2d 27 (D.D.C. 2005).  There,  the court found that the publication engaged in “journalistic analysis and judgment in addition to simply reporting data,” explaining that “[w]hile the record reflects that [the publisher] may not be involved in what is most commonly considered traditional news gathering, the privilege applies to a broad range of news gatherers.”  Id. at 32 (citing Branzburg v. Hayes, 408 U.S. 665, 703-05 (1972), for the proposition that “any attempt to define news or a newsgatherer for purposes of the privilege treads dangerously close to discriminating on the basis of content”); accord CFTC v. Whitney, 441 F. Supp. 2d 61 (D.D.C. 2006); Blumenthal v. Drudge, 186 F.R.D. 236 (D.D.C. 1999) (extending First Amendment privilege to defendant who maintained the “Drudge Report” website).  However, this expansive definition of “press” has led to criticism of the reporter’s privilege as inadministrable.  E.g. In re Miller, 438 F.3d 1141 (D.C. Cir. 2006) (Sentelle, J., concurring) (questioning whether privilege should apply to “the stereotypical ‘blogger’ sitting in his pajamas at his personal computer posting on the World Wide Web his best product to inform whoever happens to browse his way”).

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B. Whose privilege is it?

The journalist’s privilege belongs to the journalist—i.e., the person who is involved in a newsgathering or news-disseminating activity.  Anderson v. Nixon, 444 F. Supp. 1195, 1198 (D.D.C. 1978) (“Although the public interest in a fully informed press provides its basis, the privilege is that of the reporter not the informant or the public.”) (internal marks omitted); accord In re Miller, 438 F.3d 1141, 1177 (D.C. Cir. 2006) (Tatel, J., concurring in the judgment) (reporter’s privilege belongs to the journalist because it “safeguards public dissemination of information—the reporter’s enterprise, not the source’s”).

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V. Procedures for issuing and contesting subpoenas

The following sections are concerned with the legal procedures required to serve a subpoena on a member of the news media and to quash the subpoena or defeat a motion to compel.

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A. What subpoena server must do

1. Service of subpoena, time

Subpoenas seeking records or testimony from the press, like any other nonparty subpoenas, are governed by Rule 45 of the Federal Rules of Civil Procedure if issued in a civil proceeding.  If issued in a criminal proceeding, they are governed by Rule 17 of the Federal Rules of Criminal Procedure.

A civil subpoena must be served by a person who is not a party to the action and is 18 years or older, and if it commands attendance it must be accompanied by the statutory fee for one day’s attendance and mileage allowance.  Fed. R. Civ. P. 45(b)(1).  Alternate means of service, such as registered mail, are not permitted.  FTC v. Compagnie De Saint-Gobain-Pont-A-Mousson, 636 F.2d 1300, 1312 (D.C. Cir. 1980).  The subpoena must: provide the name of the court from which it was issued, the title of the action, and its civil action number; command the recipient at a specified time and place to attend and testify, produce designated materials, or permit the inspection of premises; and set out the text of Rule 45(d)-(e).  Fed R. Civ. P. 45(a)(1)(A).  The subpoena may be served anywhere in United States.  Fed. R. Civ. P. 45(b)(2).  A civil subpoena may command attendance at a trial, hearing, or deposition within 100 miles of where the recipient resides, is employed, or regularly transacts business in person; or that is within the state where the recipient resides, is employed, or regularly transacts business in person if the recipient is a party or a party’s officer, or is commanded to attend a trial and would not incur substantial expense.  Fed. R. Civ. P. 45(c)(1).  A subpoena may require production of records at a place within 100 miles of where the recipient resides, is employed, or regularly transacts business in person, or it may command inspection of premises at those premises.  Fed. R. Civ. P. 45(c)(2).  Service outside of the United States is governed by 28 U.S.C. § 1783.  Fed. R. Civ. P. 45(b)(3).

A criminal subpoena may be served anywhere in the United States by a marshal, a deputy marshal, or any other person who is not a party and is 18 years or older.  Fed. R. Crim. P. 17(d).  Service is perfected by delivery of a copy of the subpoena to the recipient and, unless the subpoena was requested by the federal government, by tendering to that person the fee for one day’s attendance and the mileage allowance.  Id.  The subpoena must: state the court’s name and the title of the proceeding, include the seal of the court, and command the recipient to attend and testify at the time and place the subpoena specifies.  Fed. R. Crim. P. 17(a).  A criminal deposition subpoena must be issued upon order of the court in the district where the deposition will be taken, and “[a]fter considering the convenience of the witness and the parties, the court may order—and the subpoena may require—the witness to appear anywhere the court designates.”  Fed. R. Crim. P. 17(f)(2).

Certain federal regulations specifically govern the issuance of subpoenas to the press.  For example, Department of Justice regulations provide that, certain exceptions aside, subpoenas may be used “to obtain information from, or records of, members of the news media” only (1) “when the information sought is essential to a successful investigation, prosecution, or litigation”; (2) “after all reasonable alternative attempts have been made to obtain the information from alternative sources”; and (3) “after negotiations with the affected member of the news media have been pursued and appropriate notice to the affected member of the news media has been provided, unless the Attorney General determines that, for compelling reasons, such negotiations or notice would pose a clear and substantial threat to the integrity of the investigation, risk grave harm to national security, or present an imminent risk of death or serious bodily harm.”  28 C.F.R. § 50.10(a)(3)-(4).

In determining whether to authorize the issuance of a subpoena to a member of the press in criminal matters, the Attorney General is obliged to consider whether there are “reasonable grounds to believe, based on public information, or information from non-media sources, that a crime has occurred, and that the information sought is essential to a successful investigation or prosecution.”  Id. § 50.10(c)(4)(ii)(A).  Such a subpoena “should not be used to obtain peripheral, nonessential, or speculative information.”  Id.

In determining whether to authorize the issuance of a subpoena to a member of the press in civil matters, the Attorney General is obliged to consider whether there are “reasonable grounds to believe, based on public information or information from non-media sources, that the information sought is essential to the successful completion of the investigation or litigation in a case of substantial importance.”  Id. § 50.10(c)(4)(ii)(B).  Such a subpoena “should not be used to obtain peripheral, nonessential, cumulative, or speculative information.”  Id.

A proposed subpoena to the press “generally should be limited to the verification of published information and to such surrounding circumstances as relate to the accuracy of the published information.”  Id. § 50.10(c)(4)(v).  A proposed subpoena should (1) “be narrowly drawn”; (2) “be directed at material and relevant information regarding a limited subject matter”; (3) “cover a reasonably limited period of time”; (4) “avoid requiring production of a large volume of material”; and (5) “give reasonable and timely notice of the demand.”  Id. § 50.10(c)(4)(viii).

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2. Deposit of security

No statutory or case law addressing this issue exists.  As a general matter, the issuing party must serve along with a civil subpoena a check sufficient to compensate the witness for one day’s attendance and the statutory mileage allowance.  Fed. R. Civ. P. 45(b)(1).  The same amounts must be provided along with a criminal subpoena unless a sufficient showing is made that the defendant cannot pay.  Fed. R. Crim. P. 17(b) & (d).

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3. Filing of affidavit

An affidavit is not necessary to obtain a subpoena.  However, a party may need to file an affidavit with a motion to compel or a motion to quash in order to establish sufficient evidence that the privilege does or does not apply.  See 4B Wright & Miller, Fed. Prac. & Proc. Civ. § 1170 n.1 (“The use of affidavits in support of motions is recognized in [Rule 6(c)] and the verification of motions by affidavit is the general practice.”).

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4. Judicial approval

Judicial approval is not necessary for a civil subpoena issued under Fed. R. Civ. P. 45. However, with regard to criminal subpoenas issued under Fed. R. Crim. P. 17, defense counsel upon an ex parte application may request that the court issue a subpoena provided that the defendant makes a satisfactory showing that the defendant is financially unable to pay the witness and the testimony of the witness is necessary to an adequate defense.

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5. Service of police or other administrative subpoenas

No statutory or case law exists addressing this issue.

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B. How to Quash

Under Fed. R. Civ. P. 45(d)(3), a court must “quash or modify” any subpoena that does not permit a reasonable time for compliance, requires the recipient to travel further than is permitted by the rules, requires the disclosure of privileged information, or unduly burdens the recipient.

Fed. R. Crim. P. 17(c)(2) provides that the court may “quash or modify the subpoena if compliance would be unreasonable or oppressive.”  Fed. R. Civ. P. 17(g) further provides that any person who fails “without adequate excuse” to obey a properly served subpoena may be found in contempt of the court.

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1. Contact other party first

No statutory or case law addressing this issue exists.  However, it may be beneficial for those who intend to assert the privilege to raise the issue informally prior to filing a motion to quash, as counsel often are not aware of the privilege issues implicated by subpoenaing a journalist.

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2. Filing an objection or a notice of intent

Rule 45 suggests that when objecting to a subpoena to command appearance at a hearing or trial or deposition, the recipient should move to quash.  Fed. R. Civ. P. 45(d)(3).  However, the rules provide that when challenging a subpoena to provide records or permit inspection, a written objection supported by a description of the nature of the documents, communications, or things not produced may be served.  Fed. R. Civ. P. 45(d)(2)(B).  Such a written objection must be served before the earlier of the time specified in the subpoena for compliance or 14 days from the date of service of the subpoena.

Rule 17 similarly authorizes motions to quash in the criminal context, Fed. R. Crim. P. 17(c)(2), but on its face it allows for a recipient to “otherwise object” only where a subpoena “require[s] the production of personal or confidential information about a victim,” Fed. R. Crim. P. 17(c)(3).

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3. File a motion to quash

“[T]he appropriate means of objecting to a subpoena is by timely written objection or by timely motion to quash or modify the subpoena.”  Judicial Watch, Inc. v. Dep’t of Commerce, 34 F. Supp. 2d 47, 56 (D.D.C. 1998).

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a. Which court?

A motion to quash or a motion to compel must be filed in the district court where compliance with the subpoena would be required.  Fed. R. Civ. P. 45(d)(2)(B)(i) & (d)(3)(A).  The court where compliance is required may then transfer such a motion to the court that issued the subpoena if the recipient consents, or for “exceptional circumstances.”  Fed. R. Civ. P. 45(f).

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b. Motion to compel

Rule 45(d)(2)(B)(i) provides that “[a]t any time, on notice to the commanded person, the serving party may move the court for the district where compliance is required for an order compelling production or inspection.”  When challenging a subpoena, it generally is advisable to move to quash or otherwise object rather than wait for such a motion to compel.

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c. Timing

A motion to quash generally is deemed timely in this Circuit if made before the date for compliance set by the subpoena.  HT S.R.L. v. Velasco, 125 F. Supp. 3d 211, 229 (D.D.C. 2015).

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d. Language

No stock language needs to be included in a motion to quash.  However, the court must quash or modify a civil subpoena if the recipient establishes that it does not permit a reasonable time for compliance, requires the recipient to travel further than is permitted by the rules, requires the disclosure of privileged information, or imposes an undue burden.  Fed. R. Civ. P. 45(d)(3)(A).

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e. Additional material

Case law suggests that a court will consider supporting documentation filed along with a motion to quash.  E.g., Peck v. City of Boston (In re Slack), 768 F. Supp. 2d 189, 191 (D.D.C. 2011) (noting that the court reviewed “memoranda filed in support and opposition to the motion, the accompanying declarations, and applicable law” and expressly citing reporter’s declaration).

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4. In camera review

a. Necessity

In the grand jury context, the D.C. Circuit has permitted in camera, ex parte review of secret evidentiary submissions in support of enforcement of subpoenas.  In re Miller, 397 F.3d 964, 973-74 (D.C. Cir. 2005), opinion superseded by 438 F.3d 1141 (D.C. Cir. 2006).  There, the D.C. Circuit rejected the reporters’ argument that denial of access to this evidence constituted violation of their due process rights because of well-established authority that “a district court can ensure [grand jury] secrecy is protected by provisions for sealed, or when necessary ex parte, filings.”  Id. at 973 (citing In re Grand Jury, 121 F.3d 729, 757 (D.C. Cir. 1997)).  Judge Tatel further redacted a substantial portion of his concurring opinion to preserve grand jury secrecy and to protect classified information, though the court later unsealed portions of the opinion in which the information was no longer secret.

No case law states that in camera review is required before a court may compel production of information sought from a reporter, and case law regarding other privileges suggests that in camera review is not always necessary.  E.g., Linder v. NSA, 94 F.3d 693, 696-97 (D.C. Cir. 1996) (rejecting argument that the district court should have examined sample documents in camera before ruling on the motion to quash, and stating that a “court may rely on affidavits in lieu of an in camera review when they are sufficiently detailed, as they were in this case”).  The decision whether to perform in camera review is left to the discretion of the court.  Kay v. FCC, 976 F. Supp. 23, 34 (D.D.C. 1997) (denying plaintiff’s motion for in camera review and granting defendant’s motion to quash).  However, case law also suggests that the court may proceed to review the requested information in camera if the person seeking the information has made an adequate showing of need.  E.g., In re Sealed Case, 121 F.3d 729, 745 (D.C. Cir. 1997).

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No statutory or case law addressing this issue exists.

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c. Consequences of refusing

No statutory or case law addressing this issue exists.

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5. Briefing schedule

No special rules exist for motions to quash.  Rather, general motions practice rules apply.

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6. Amicus briefs

No statutory or case law addressing this issue exists.  However, Rule 29 of the Federal Rules of Appellate Procedure and D.C. Circuit Rule 29 address motions for leave to file amicus briefs.

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VI. Substantive law on contesting subpoenas

A. Burden, standard of proof

The journalist or other proponent of the privilege must establish that the privilege applies, i.e., that information was obtained with the intent and purpose of disseminating it to the public. Goldberg v. Amgen, Inc., 123 F. Supp. 3d 9, 15 (D.D.C. 2015); Hutira v. Islamic Republic of Iran, 211 F. Supp. 2d 115, 119 n.4 (D.D.C. 2002).  Thereafter, the burden shifts to the party seeking the information to show that the information is highly relevant to its case, and that either no other available means of obtaining it exists or that all other reasonable alternatives have been exhausted.  Zerilli v. Smith, 656 F.2d 705, 711-714 (D.C. Cir. 1981); Lee v. Dep’t of Justice, 413 F.3d 53 (D.C. Cir. 2005).  In Estate of Klieman v. Palestinian Authority, for example, the district court initially ordered the BBC to produce outtakes from a documentary after finding that those materials were relevant to plaintiffs’ case and were unavailable from reasonable alternative sources, but it later stayed that ruling after subsequent discovery led to “uncertainty as to whether alternative sources of information are reasonably available.”  18 F. Supp. 3d 4, 6 (D.D.C. 2014).

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B. Elements

The D.C. Circuit applies a two-prong test to determine whether the privilege is overcome: (1) the party seeking the information has exhausted all reasonable, alternative means of identifying the source; and (2) the information goes to the heart of that party’s case.  Lee v. Dep’t of Justice, 413 F.3d 53 (D.C. Cir. 2005); Goldberg v. Amgen, Inc., 123 F. Supp. 3d 9 (D.D.C. 2015); Estate Klieman v. Palestinian Auth., 293 F.R.D. 235 (D.D.C. 2013); Peck v. City of Boston (In re Slack), 768 F. Supp. 2d 189 (D.D.C. 2011); Saperstein v. Palestinian Auth. (In re Goldberg), 693 F. Supp. 2d 81 (D.D.C. 2010); Hatfill v. Gonzales, 505 F. Supp. 2d 33 (D.D.C. 2007); CFTC v. McGraw-Hill Cos., Inc., 507 F. Supp. 2d 45 (D.D.C. 2007); Mgmt. Info. Techs., Inc. v. Alyeska Pipeline Serv. Co., 151 F.R.D. 471 (D.D.C. 1993); Palandjian v. Pahlavi, 103 F.R.D. 410 (D.D.C. 1984).

Some case law indicates that the court should apply a third factor, balancing the public’s interest in protecting the newsgathering process against the private interest in disclosure.  This third factor, however, remains a topic of active judicial debate in this Circuit.  Compare Lee v. Dep’t of Justice, 428 F.3d 299 (D.C. Cir. 2005) (Tatel & Garland, JJ., dissenting from denial of rehearing en banc) (arguing that courts should weigh the requesting party’s “private interest” in the lawsuit against “the public’s interest in protecting journalists’ ability to report without reservation on sensitive issues”), and Grunseth v. Marriott Corp., 868 F. Supp. 333, 335-36 (D.D.C. 1994) (“Plaintiff has demonstrated no overwhelming or compelling societal interest in overcoming the presumption of favoring First Amendment protections for a reporter’s sources”), with Lee v. Dep’t of Justice, 401 F. Supp. 2d 123 (D.D.C. 2005) (characterizing the proposed public/private interest balancing test as “inherently unworkable”), and Hatfill v. Gonzales, 505 F. Supp. 2d 33 (D.D.C. 2007) (“without controlling precedent from the Circuit that the public interest balancing element is a necessary protection for reporters, the Court must decline to employ it”).

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1. Relevance of material to case at bar

To overcome the journalist’s privilege, the information-seeking party must establish that the information at issue is highly relevant:  for example, plaintiffs seeking the disclosure of sources’ identities must show that those identities go to “the heart of the plaintiffs’ claim.” Carey v. Hume, 492 F. 2d 631, 634 (D.C. Cir. 1974); see also United States v. Ahn, 231 F.3d 26 (D.C. Cir. 2000) (affirming grant of motion to quash where reporter’s testimony was not “essential and critical” to the case); Saperstein v. Palestinian Auth. (In re Goldberg), 693 F. Supp. 2d 81 (D.D.C. 2010) (granting motion to quash where information did not bear on “an important issue at stake in the litigation”); Hatfill v. Gonzales, 505 F. Supp. 2d 33 (D.D.C. 2007) (granting motion to compel where identity of sources was “an integral component” of plaintiff’s claim).  It does not suffice for the information sought to be relevant to any issue in the case; rather, the information must be crucial to the case and its presence essential to a just resolution.  Peck v. City of Boston (In re Slack), 768 F. Supp. 2d 189, 194 (D.D.C. 2011) (court must consider “how important, not just relevant” the requested information is to the requesting party’s case).

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2. Material unavailable from other sources

The party seeking disclosure must establish that the material at issue remains unavailable from other sources.  Zerilli v. Smith, 656 F.2d 705, 713 (D.C. Cir. 1981) (“reporters should be compelled to disclose their sources only after the litigant has shown that he has exhausted every reasonable alternative source of information”).  The party seeking information must therefore show that every reasonable alternative source of the information has been exhausted.  E.g., Estate of Klieman v. Palestinian Authority, 18 F. Supp. 3d 4, 6 (D.D.C. 2014) (staying initial order compelling production of outtakes after subsequent discovery created “uncertainty as to whether alternative sources of information are reasonably available”); Peck v. City of Boston (In re Slack), 768 F. Supp. 2d 189 (D.D.C. 2011) (granting motion to quash subpoena where plaintiff’s general descriptions of efforts to obtain information from alternative sources did not suffice to show that alternative sources were unavailable); Hutira v. Islamic Republic of Iran, 211 F. Supp. 115, 122 (D.D.C. 2002) (granting motion to quash subpoena for documents and testimony from journalist and holding that information-seeking party must first contact individuals discussed in published article); NLRB v. Mortensen, 701 F. Supp. 244, 248 (D.D.C. 1988) (noting that the “party seeking the information must show that his only practical access to crucial information necessary for the development of the case is through the newsman’s sources”) (internal marks omitted); Tavoulareas v. Piro, 93 F.R.D. 11 (D.D.C. 1981) (denying motion to compel disclosure of sources as premature in part because plaintiffs had yet to exhaust alternative sources); Maughan v. NL Indus., 524 F. Supp. 93, 95 (D.D.C. 1981) (if alternative means of obtaining information exist, subpoenaed reporter will not be compelled to testify).

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a. How exhaustive must search be?

In the D.C. Circuit, exhaustion requires that all “reasonable” sources of evidence be tapped.  Lee v. Dep’t of Justice, 287 F. Supp. 2d 15, 20-23 (D.D.C 2003) (plaintiff demonstrated exhaustion of alternative sources where he issued six document requests, one set of interrogatories, four sets of requests for admissions, and a total of 20 depositions).  There is no specific number of depositions necessary to create exhaustion, Lee v. Dep’t of Justice, 413 F.3d 53, 61 (D.C. Cir. 2005), though the D.C. Circuit has suggested that as many as 60 depositions may not suffice, Carey v. Hume, 492 F. 2d 631 (D.C. Cir. 1974); see also Zerilli v. Smith, 656 F.2d at 724 (noting that although limits to the obligation to pursue alternative sources exist, the exhaustion obligation is “clearly very substantial”).  The number of depositions necessary for exhaustion must be determined on a case-by-case basis.  Lee, 413 F.3d at 61.  It is not necessary to depose every individual who could conceivably identify the source.  Id.

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

The subpoenaing party must demonstrate that it already has conducted a search for the material outside of subpoenaing the news media, or that such a search would be futile.  E.g., Peck v. City of Boston (In re Slack), 768 F. Supp. 2d 189 (D.D.C. 2011) (granting motion to quash subpoena where plaintiff’s general descriptions of efforts to obtain information from alternative sources did not suffice to show that alternative sources were unavailable); United States v. Hubbard, 493 F. Supp. 202, 205 (D.D.C. 1979) (quashing subpoena for reporter to testify at criminal suppression hearing where “alternative means” existed to obtain the requested information).

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c. Source is an eyewitness to a crime

In Carey v. Hume, 492 F.2d 631 (D.C. Cir. 1974), the D.C. Circuit affirmed the district court’s order directing journalists to identify sources who were eyewitnesses to events that were being investigated as a possible burglary.

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3. Balancing of interests

Several persuasive opinions indicate that a court should engage in a balancing of the public’s interest in protecting the newsgathering process against the private interest in disclosure that has been brought into question.  Compare Lee v. Dep’t of Justice, 428 F.3d 299 (D.C. Cir. 2005) (Tatel & Garland, JJ., dissenting from denial of rehearing en banc) (arguing that courts should weigh a litigant’s “private interest” in the lawsuit against “the public’s interest in protecting journalists’ ability to report without reservation on sensitive issues”), and Grunseth v. Marriott Corp., 868 F. Supp. 333, 335-36 (D.D.C. 1994) (“Plaintiff has demonstrated no overwhelming or compelling societal interest in overcoming the presumption of favoring First Amendment protections for a reporter’s sources”), with Lee v. Dep’t of Justice, 401 F. Supp. 2d 123 (D.D.C. 2005) (characterizing the proposed public/private interest balancing test as “inherently unworkable”), and Hatfill v. Gonzales, 505 F. Supp. 2d 33 (D.D.C. 2007) (“without controlling precedent from the Circuit that the public interest balancing element is a necessary protection for reporters, the Court must decline to employ it”).

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4. Subpoena not overbroad or unduly burdensome

Fed. R. Crim. P. 17(c)(2) provides that a court may “quash or modify” a criminal subpoena if compliance would be “unreasonable or oppressive.”  Fed. R. Civ. P. 45(d)(3)(A)(iv), by contrast, provides a court must quash or modify a civil subpoena that “subjects a person to undue burden.”  The D.C. Circuit has interpreted this “undue burden” test to be satisfied by “a request that is unreasonable or oppressive in the context of all the circumstances of the case.”  Flanagan v. Wyndham Int’l Inc., 231 F.R.D. 98, 102 (D.D.C. 2005) (citing Northrop Corp. v. McDonnell Douglas Corp., 751 F.2d 395, 403 (D.C. Cir. 1984) (alterations and internal marks omitted)).  In this context, “[a] trial court has broad, but not unlimited, discretion in evaluating the circumstances of a case when considering quashing a subpoena on grounds of oppressiveness,” and it must “consider the possibility of modifying the subpoena rather than quashing” it.  Northrop Corp., 751 F.2d at 403.

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5. Threat to human life

If the party seeking information has shown by competent evidence that both prongs of the Zerilli test are satisfied—i.e., that the information is relevant and that no other reasonable sources for it exist—the court arguably may consider whether the information involves a threat to human life as part of the contested third element of whether the public’s interest in protecting the newsgathering process outweighs the private interest in disclosure.  Compare Grunseth v. Marriott Corp., 868 F. Supp. 333, 335-36 (D.D.C. 1994) (finding “no overwhelming or compelling societal interest in overcoming the presumption of favoring First Amendment protections for a reporter’s sources”), with Lee v. Dep’t of Justice, 401 F. Supp. 2d 123 (D.D.C. 2005) (criticizing proposed public/private interest balancing test as “inherently unworkable”).

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6. Material is not cumulative

If the material sought would be cumulative, the equities considered during the judicial balancing process should weigh in favor of nondisclosure, whether the court applies the two-prong or three-prong privilege test.  E.g., Zerilli v. Smith, 656 F.2d 705 (D.C. Cir. 1981); Grunseth v. Marriott Corp., 868 F. Supp. 333, 335-36 (D.D.C. 1994).

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7. Civil/criminal rules of procedure

The Federal Rules of Civil Procedure expressly allow the subpoenaed party to contest a subpoena by moving to quash or, if the subpoena seeks records or inspection, by responding with written objections.  Fed. R. Civ. P. 45(d)(2)(B) & (d)(3).  The Federal Rules of Criminal Procedure similarly authorize motions to quash, Fed. R. Crim. P. 17(c)(2), but on their face they allow for a recipient to “otherwise object” only where a subpoena “require[s] the production of personal or confidential information about a victim,” Fed. R. Crim. P. 17(c)(3).

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8. Other elements

Aside from whether the party seeking information can show that its private interest in disclosure outweighs the public’s interest in protecting the newsgathering process, the D.C. Circuit has not identified any other elements that must be established before the journalist’s privilege can be overcome.  Compare Lee v. Dep’t of Justice, 428 F.3d 299 (D.C. Cir. 2005) (Tatel & Garland, JJ., dissenting from denial of rehearing en banc) (arguing that courts should weigh a plaintiff’s “private interest” in the lawsuit against “the public’s interest in protecting journalists’ ability to report without reservation on sensitive issues”), and Grunseth v. Marriott Corp., 868 F. Supp. 333, 335-36 (D.D.C. 1994) (“Plaintiff has demonstrated no overwhelming or compelling societal interest in overcoming the presumption of favoring First Amendment protections for a reporter’s sources”), with Lee v. Dep’t of Justice, 401 F. Supp. 2d 123 (D.D.C. 2005) (characterizing the proposed public/private interest balancing test as “inherently unworkable”), and Hatfill v. Gonzales, 505 F. Supp. 2d 33 (D.D.C. 2007) (“without controlling precedent from the Circuit that the public interest balancing element is a necessary protection for reporters, the Court must decline to employ it”).

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C. Waiver or limits to testimony

Although no cases in this Circuit have ruled explicitly that the reporter’s privilege was waived, in Alexander v. Nixon, 444 F. Supp. 1195, 1199-1200 (D.D.C. 1978), the court suggested that if a reporter brings suit in which his sources may have relevant information, the reporter “waives his qualified privilege of silence.”

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1. Is the privilege waivable?

Case law in this Circuit suggests that the reporter’s privilege, like other evidentiary privileges, is waivable.  E.g., Alexander v. Nixon, 444 F. Supp. 1195, 1199-1200 (D.D.C. 1978) (suggesting that if a reporter brings suit in which his sources may have relevant information, the reporter “waives his qualified privilege of silence”).  As the privilege belongs to the reporter, it can be waived only by the reporter.  See In re Miller, 438 F.3d 1141, 1177 (D.C. Cir. 2006) (Tatel, J., concurring in the judgment) (citing case law for the proposition “that only reporters, not sources, may waive the privilege”).  A source’s attempted waiver is thus irrelevant.  But see Lee v. Dep’t of Justice, 401 F. Supp. 2d 123 (D.D.C. 2005) (ordering reporter “to contact each and every one of his . . . sources to inform them of the Court’s [contempt] order so that, should they release him from his pledge of confidentiality, [the reporter] can reconsider whether he needs to further resist the order of the Court and, perhaps, this matter can become moot without further litigation”).

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2. Elements of waiver

a. Disclosure of confidential source's name

No statutory or case law addressing this issue exists.

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b. Disclosure of non-confidential source's name

No statutory or case law addressing this issue exists.

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c. Partial disclosure of information

No statutory or case law addressing this issue exists.

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d. Other elements

No statutory or case law addressing this issue exists.

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3. Agreement to partially testify act as waiver?

No statutory or case law addressing this issue exists.

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VII. What constitutes compliance?

This section examines what members of the news media must do to comply with a valid, upheld subpoena request.

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A. Newspaper articles

Newspapers are self-authenticating under Rule 902(6) of the Federal Rules of Evidence.  The statements within them, however, may be inadmissible hearsay.  Wright et al., 31 Fed. Prac. & Proc. Evid. § 7140 (“Even assuming authenticity is established, that does not mean that the item is necessarily admissible since admissibility issues other than authenticity may still be raised under the Evidence Rules”).  Thus, a subpoena for a journalist’s testimony about an article’s contents, if upheld, would likely not be satisfied by the submission of a copy of an article alone.

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B. Broadcast materials

In the D.C. Circuit, audio recordings “may be authenticated by testimony describing the process or system that created the tape or by testimony from parties to the conversation affirming that the tapes contained an accurate record of what was said.”  United States v. Strothers, 77 F.3d 1389, 1392 (D.C. Cir. 1996) (internal marks omitted).  Secondary sources likewise suggest that the person who recorded a broadcast tape likewise need not be called to authenticate it: a witness who is familiar with the object or scene depicted can lay the predicate foundation.  See Jordan S. Gruber, Foundation for Contemporaneous Videotape Evidence, 16 Am. Jur. Proof of Facts 3d § 493 (1992).

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C. Testimony vs. affidavits

No statutory or case law suggests that a journalist may submit an affidavit and be excused from the obligations of a subpoena for testimony after a motion to quash has been denied or a motion to compel has been granted.

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D. Non-compliance remedies

1. Civil contempt

In order to hold a reporter in contempt, the requesting party must demonstrate by clear and convincing evidence that (1) the court’s discovery order compelling disclosure is reasonably clear and specific, and (2) the reporter failed to comply with the order.  E.g., Lee v. Dep’t of Justice, 401 F. Supp. 2d 123, 142 (D.D.C. 2005) (holding reporter in contempt and imposing fine of $500 per day until reporter complies with discovery order).  The court has broad discretion in fashioning an appropriate contempt sanction.  Lee v. Dep’t of Defense, 327 F. Supp. 2d 26, 33 (D.D.C. 2004), vacated in part on other grounds, 413 F.3d 53 (D.C. Cir. 2005).

Sanctions imposed in a civil contempt proceeding ordinarily are conditional, i.e., the person held in civil contempt may avoid sanctions by complying with the court’s order.  18 U.S.C § 401. This follows from the purpose of civil contempt, which is not to punish but to exert only so much authority of the court as needed to ensure compliance.  E.g., United States v. Liddy, 354 F. Supp. 208, 217 (D.D.C. 1972) (holding journalist in contempt and remanding him to custody “unless and until he purges himself of the contempt”).  Courts have shown a willingness to stay the imposition of fines and confinement pending appeal of the contempt order, however.  See, e.g., Lee, 401 F. Supp. 2d at 142; Lee, 327 F. Supp. 2d at 33; In re Special Counsel Investigation, 332 F. Supp. 2d 33, 34 (D.D.C. 2004).

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a. Fines

Fines have been issued in this Circuit in both civil and criminal proceedings.  E.g., Lee v. Dep’t of Justice, 401 F. Supp. 2d 123, 142 (D.D.C. 2005) (ordering fine of $500 per day in civil context until contemnor complies with discovery order); In re Special Counsel Investigation, 332 F. Supp. 2d 33, 34 (D.D.C. 2004) (ordering a fine of $1,000.00 per day in grand jury context until contemnor complies with discovery order).  The district court has held that a nominal sanction of $1 per day is “insufficient to coerce compliance,” while a fine of $1,000 a day is too punitive in the civil context.  Lee v. Dep’t of Justice, 327 F. Supp. 2d 26, 33 (D.D.C. 2004), vacated in part on other grounds, 413 F.3d 53 (D.C. Cir. 2005).  In Hatfill v. Mukasey, the court went so far as to prevent a journalist held in contempt “from accepting reimbursement to satisfy the monetary sanction imposed by the Court,” so that the journalist alone would “be required to bear the financial burden of her choice not to” comply with the court’s order.  539 F. Supp. 2d 96, 107 (D.D.C. 2008).  However, courts have shown a willingness to stay the imposition of fines pending appeal of a contempt order.  E.g., Lee, 401 F. Supp. 2d at 142; In re Special Counsel Investigation, 332 F. Supp. 2d 33, 34 (D.D.C. 2004).

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b. Jail

In In re Special Counsel Investigation, 332 F. Supp. 2d 33, 34 (D.D.C. 2004), the district court held a reporter in contempt and ordered him to be confined until he was willing to comply with the discovery order arising out of a grand jury subpoena.  The period of confinement was limited to the life of the term of the grand jury, and in no event could it exceed eighteen months.  Id.  

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2. Criminal contempt

The district court is imbued with great discretion in fashioning an appropriate criminal contempt sanction.  United States v. United Mine Workers, 330 U.S. 258 (1947).  Nevertheless, case law suggests that if a court proceeds without a jury in a criminal contempt proceeding, it can impose no more than 90 days of imprisonment on the contemnor.  Rollerson v. United States, 343 F.2d 269 (D.C. Cir. 1964).

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3. Other remedies

No statutory or case law addressing this issue exists.

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VIII. Appealing

A. Timing

1. Interlocutory appeals

A discovery order on a motion to quash or motion to compel ordinarily is not considered final and appealable.  Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 107 (2009).  Thus, a litigant cannot immediately appeal such a discovery order, but must instead either comply or refuse to do so and appeal from a resulting contempt order.  E.g., Lee v. Dep’t of Defense, 413 F.3d 53, 59 (D.C. Cir. 2005); Office of Thrift Supervision v. Dobbs, 931 F.2d. 956, 957 (D.C. Cir. 1991) (“[t]o obtain review of subpoena, a party must refuse to comply with the subpoena, be held in contempt by the trial court, and appeal the finding of contempt to the appellate court”); In re Sealed Case, 162 F.3d 670, 673 (D.D.C. 1998) (“one to whom a subpoena is directed may not appeal the denial of a motion to quash that subpoena but must either obey its commands or refuse to do so and contest the validity of the subpoena if he is subsequently cited for contempt on account of his failure to obey”) (internal marks omitted).  Review of a contempt order entails review of the underlying issue of whether the reporter’s privilege applies.  Lee, 413 F.3d at 59.

The D.C. Circuit has recognized a narrow exception to the general rule on the non-appealability of discovery orders:  If a motion to quash a subpoena served on a non-party is granted by a court in a district other than the one in which the underlying action is pending, case law suggests that such an order is final and appealable as it is the final disposition of the issues before that court. See Northrop Corp. v. McDonnell Douglas Corp., 751 F.2d 395, 399 (D.C. Cir. 1984); 9 Moore’s Fed. Prac. Civ. § 45.71[1] (3d ed. 2018).

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2. Expedited appeals

Pursuant to 28 U.S.C. § 1826(b), an “appeal from an order of confinement” imposed on a “[r]ecalcitrant witness” must “be disposed of as soon as practicable, but not later than thirty days from the filing of such appeal.”  D.C. Circuit Rule 47.2 recognizes that such appeals are to be expedited.

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B. Procedure

1. To whom is the appeal made?

An order from the U.S. District Court for the District of Columbia must generally be appealed to the U.S. Court of Appeals for the District of Columbia Circuit.  If the decision is issued by a magistrate judge, any party may file written objections in the district court within 14 days of being served with the order.  D.D.C. LCvR 72.2(b).  Such objections must specifically designate the order or parts thereof to which objection is made and state the basis for the objection.  Id.

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2. Stays pending appeal

Under Rule 8 of the Federal Rules of Appellate Procedure and the corresponding Circuit Rule, a party seeking a stay of judgment or of an order of the district court ordinarily must first seek that relief from the district court itself.  In the stay motion, the party must state with specificity the reasons for granting the stay and discuss: (1) the likelihood the party will prevail on the merits; (2) the prospect of irreparable injury to the moving party if relief is withheld; (3) the possibility of harm to other parties if relief is granted; and (4) the public interest.  E.g., Hatfill v. Mukasey, 539 F. Supp. 2d 96 (D.D.C. 2008).

Courts have shown a willingness to stay the imposition of fines and confinement pending appeal of a contempt order.  See, e.g., Lee v. Dep’t of Justice, 401 F. Supp. 2d 123, 143 (D.D.C. 2005); In re Special Counsel Investigation, 332 F. Supp. 2d 33, 34 (D.D.C. 2004).

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3. Nature of appeal

The timing of an appeal and the procedures governing it depend on whether the person moving to quash a subpoena is a party or non-party and whether the court granted or denied the motion.  A party generally must wait until the final deposition of the case to appeal the presiding court’s order regarding a discovery motion.  Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 107 (2009).  However, an order by a court denying a motion to quash may be appealed after a finding of contempt against the still-noncompliant movant.  E.g., Lee v. Dep’t of Defense, 413 F.3d 53, 59 (D.C. Cir. 2005); Office of Thrift Supervision v. Dobbs, 931 F.2d. 956, 957 (D.C. Cir. 1991).

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4. Standard of review

A district court’s decision to quash or modify a subpoena will not be reversed on appeal absent an abuse of discretion.  E.g., Zerilli v. Smith, 656 F.2d 705, 710 (D.C. Cir. 1981).  The D.C. Circuit accordingly will “review legal rulings of the trial court de novo but will defer to the sound discretion of the trial court where the balancing of relevant factors is involved.”  Lee v. Dep’t of Defense, 413 F.3d 53, 59 (D.C. Cir. 2005).

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5. Addressing mootness questions

No statutory or case law exists addressing mootness in cases concerning the reporter’s privilege. However, the D.C. Circuit’s general rule is that “[e]ven where litigation poses a live controversy when filed, the doctrine [of mootness] requires a federal court to refrain from deciding it if events have so transpired that the decision will neither presently affect the parties’ rights nor have a more-than-speculative chance of affecting them in the future.”  Clarke v. United States, 915 F.2d 699, 701 (D.C. Cir. 1990) (en banc) (citation and internal marks omitted); Office of Thrift Supervision v. Dobbs, 931 F.2d. 956, 957 (D.C. Cir. 1991) (appeal from enforcement of subpoena is moot once party has complied with subpoena).

An action is not moot, however, if the dispute is deemed to be capable of repetition yet evading review.  Clarke, 915 F.2d at 703.  To fall within this exception, a party must show that: “(1) the challenged action is in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there is a reasonable expectation that the same complaining party would be subject to the same action again.”  Murphy v. Hunt, 455 U.S. 478, 482 (1982).  In estimating whether an event is likely to recur, courts may consider how often it has occurred in the past.  Clarke, 915 F.2d at 704.

When a case is deemed moot while pending appeal, federal courts generally reverse or vacate the judgment below and remand with instruction to dismiss the case.  Clarke, 915 F.2d at 706 (D.C. Cir. 1990) (citing United States v. Munsingwear, 340 U.S. 36 (1950)).

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6. Relief

A journalist may request that the appellate court reverse the district court’s order compelling compliance with a subpoena and likewise may request that the appellate court reverse a contempt order.  In re Sealed Case, 877 F.2d 83 (D.C. Cir. 1989) (affirming in part and reversing in part order for appellant to comply with subpoena and order holding appellant in contempt).

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IX. Other issues

A. Newsroom searches

D.C. federal courts have not applied or construed the federal Privacy Protection Act, 42 U.S.C. § 2000aa.  However, the D.C. Circuit has observed that the Privacy Protection Act “restricts only searches and seizures, not subpoenas.”  Doe v. Stephens, 851 F.2d 1457, 1464 (D.C. Cir. 1988).

Justice Department guidelines provide that in “[a]pplying for warrants to search the premises, property, communications records, or business records of members of the news media,” prosecutors must obtain the authorization of the Attorney General and receive the personal endorsement of the U.S. Attorney or Assistant Attorney General “responsible for the matter.”  28 C.F.R. § 50.10(d)(1)-(2).  In considering such a request, the Attorney General is obliged to “take into account the considerations” that should be weighed in deciding whether to authorize a subpoena or other order “to obtain from third parties the communications records or business records of a member of the news media.”  Id. § 50.10(d)(3).  When executing such a warrant, “investigators should use search protocols designed to minimize intrusion into potentially protected materials or newsgathering activities unrelated to the investigation, including but not limited to keyword searches (for electronic searches) and filter teams.”  Id. § 50.10(d)(7).

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B. Separation orders

No statutory or case law addressing this issue exists.

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C. Third-party subpoenas

Subpoenas can be issued to third parties—such as credit card companies, telephone companies, and Internet service providers—in an attempt to discover a reporter’s source.  The D.C. Circuit has ruled that at least in the context of a criminal investigation, “journalists . . . have no First Amendment interest in third-party records which disclose the identity of a secret source and consequently, have no First Amendment right to notice of subpoenas directed at such records.” Reporters Comm. for Freedom of Press v. AT&T Co., 593 F.2d 1030, 1053 (D.C. Cir. 1978).

However, Justice Department guidelines instruct the Attorney General to weigh essentially the same factors “in determining whether to authorize the use of a subpoena [or other court] order to obtain from third parties the communications records or business records of a member of the news media” as the Attorney General should consider in deciding whether to authorize the issuance of a subpoena to the press itself.  28 C.F.R. § 50.10(c)(5).

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D. The source's rights and interests

No statutory or case law addressing this issue exists.

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