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Delaware

Reporters Privilege Compendium

David L. Finger
Finger & Slanina, LLC
One Commerce Center
1201 N. Orange St., 7th fl.
Wilmington, DE  19801
(302) 573-2525
dfinger@delawgroup.com
www.delawgroup.com

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I. Introduction: History & Background

Delaware has a long common law history of respecting journalistic privilege. Although a reporter may only refuse to testify by claiming a privilege expressly granted under the Reporters' Privilege Act (see Delaware Rule of Evidence 513), those privileges both originated in and continue to be shaped by case law. Both common law and statutory law presume that once a reporter's privilege has been asserted, it is valid unless and until the party seeking the information proves that the privilege should not apply. The burden of overcoming the presumption is difficult. Several issues surrounding reporters' privilege have not yet been addressed in Delaware. However, this should not be interpreted as potential weakness in the doctrine, as the case law that does exist indicates a strong commitment to the privilege.

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II. Authority for and source of the right

Although Delaware's reporters' privilege has developed largely from the common law, the reporters' privilege is now codified in the Delaware Reporters' Privilege Act. The state has developed its privilege by drawing from the Supreme Court's decision in Branzburg and other federal First Amendment jurisprudence, the state's constitution, and state common law.

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A. Shield law statute

10 Del. C. § 4320-26

  • 4320. Definitions

As used in this subchapter:

(1) "Adjudicative proceeding" means any judicial or quasi-judicial proceeding in which the rights of parties are determined but does not include any proceeding of a grand jury.

(2) "Information" means any oral, written or pictorial material and includes, but is not limited to, documents, electronic impulses, expressions of opinion, films, photographs, sound records, and statistical data.

(3) "Person" means individual, corporation, business trust, estate, trust, partnership or association, governmental body, or any other legal entity.

(4) "Reporter" means any journalist, scholar, educator, polemicist, or other individual who either:

  1. At the time he obtained the information that is sought was earning his or her principal livelihood by, or in each of the preceding 3 weeks or 4 of the preceding 8 weeks had spent at least 20 hours engaged in the practice of, obtaining or preparing information for dissemination with the aid of facilities for the mass reproduction of words, sounds, or images in a form available to the general public; or
  2. Obtained the information that is sought while serving in the capacity of an agent, assistant, employee, or supervisor of an individual who qualifies as a reporter under subparagraph a.

(5) "Source" means a person from whom a reporter obtained information by means of written or spoken communication or the transfer of physical objects, but does not include a person from whom a reporter obtained information by means of personal observation unaccompanied by any other form of communication and does not include a person from whom another person who is not a reporter obtained information, even if the information was ultimately obtained by a reporter.

(6) "Testify" means give testimony, provide tangible evidence, submit to a deposition, or answer interrogatories.

(7) "Within the scope of his or her professional activities" means any situation, including a social gathering, in which the reporter obtains information for the purpose of disseminating it to the public, but does not include any situation in which the reporter intentionally conceals from the source the fact that he or she is a reporter and does not include any situation in which the reporter is an eyewitness to or participant in an act involving physical violence or property damage.

  • 4321. Privilege in nonadjudicative proceedings

A reporter is privileged in a nonadjudicative proceeding to decline to testify concerning either the source or content of information that he obtained within the scope of his professional activities.

  • 4322. Privilege in adjudicative proceedings

A reporter is privileged in an adjudicative proceeding to decline to testify concerning the source or content of information that he or she obtained within the scope of his or her professional activities if the reporter states under oath that the disclosure of the information would violate an express or implied understanding with the source under which the information was originally obtained or would substantially hinder the reporter in the maintenance of existing source relationships or the development of new source relationships.

  • 4323. Exceptions to the privilege in adjudicative proceedings

(a) Unless the disclosure of the content of the information would substantially increase the likelihood that the source of the information will be discovered, the privilege provided by § 4322 shall not prevent a reporter from being required in an adjudicative proceeding to testify concerning the content, but not the source, of information that the reporter obtained within the scope of his or her professional activities if the judge determines that the public interest in having the reporter's testimony outweighs the public interest in keeping the information confidential. In making this determination, the judge shall take into account the importance of the issue on which the information is relevant, the efforts that have been made by the subpoenaing party to acquire evidence on the issue from alternative sources, the sufficiency of the evidence available from alternative sources, the circumstances under which the reporter obtained the information, and the likely effect that disclosure of the information will have on the future flow of information to the public.

(b) The privilege provided by § 4322 shall not prevent a reporter from being required in an adjudicative proceeding to testify concerning either the source or the content of information that the reporter obtained within the scope of his or her professional activities if the party seeking to have the reporter testify proves by a preponderance of the evidence that the sworn statement submitted by the reporter as required by § 4322 is untruthful.

  • 4324. Determination of privilege claim

A person who invokes the privilege provided by this subchapter may not be required to testify in any proceeding except by court order. If a person invokes the privilege in any proceeding other than a court proceeding, the body or party seeking to have the person testify may apply to the Superior Court for an order requiring the claimant of the privilege to testify. If the Court determines that the claimant does not qualify for the privilege under the provisions of this subchapter, it shall order him to testify.

  • 4325. Waiver

If a reporter waives the privilege provided by this subchapter with respect to certain facts, he or she may be cross-examined on the testimony or other evidence he or she gives concerning those facts but not on other facts with respect to which the reporter claims the privilege. A reporter does not waive or forfeit the privilege by disclosing all or any part of the information protected by the privilege to any other person.

  • 4326. Short title

This subchapter may be cited as the "Reporters' Privilege Act."

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B. State constitutional provision

Del. Const. Art. I, § 5

5. Freedom of press; evidence in libel prosecutions; jury questions

Section 5. The press shall be free to every citizen who undertakes to examine the official conduct of persons acting in a public capacity; and any citizen may print on any subject, being responsible for the abuse of that liberty. In prosecutions for publications, investigating the proceedings of officers, or where the matter published is proper for public information, the truth thereof may be given in evidence; and in all indictments for libels the jury may determine the facts and the law, as in other cases.

Amended by 72 L.1999, ch. 136, § 4, eff. June 24, 1999.

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C. Federal constitutional provision

The Delaware free press provision has been determined to have the same scope as the First Amendment to the federal constitution. See In re Opinion of the Justices, 324 A.2d 211 (Del. 1974).

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D. Other sources

Delaware has long recognized a common law reporters' privilege. Although a reporter may only refuse to testify by claiming a privilege expressly granted under the Reporters' Privilege Act (see D.R.E. 513 ("A reporter may not decline to testify except as provided by statute.")), those privileges both originated in and continue to be shaped by case law.

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III. Scope of protection

A. Generally

The privilege, appropriately claimed, is very strong.

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B. Absolute or qualified privilege

The First Amendment privilege afforded to reporters is a qualified privilege; it is not absolute.

The statutory privilege is limited to information obtained within the scope of the reporter's professional activities. 10 Del. C. §§ 4321, 4322. "Professional activities" may include social gatherings, § 4320 (7), but do not include instances of intentional concealment of the reporter's identity as a reporter, or instances wherein the reporter personally witnesses or participates in acts of physical violence or property damage. Id.

A claim of privilege may be successfully challenged in several ways:

  • •If the reporter concealed her identity, or was eyewitness to or participant in the act, the privilege does not apply. Id. But see, e.g., Fuester v. Conrail, 22 Media L. Rep. (BNA) 2376, 2378 (Del. Super. 1994) (applying the privilege to "out takes" of television news camera footage of a live event); State v. Hall, 16 Med. L. Rptr. 1414 (Del. Mun. Ct. Mar. 8, 1989) (quashing subpoena ad testificandum when reporters attended a rally in their official capacities and personally witnessed the disorderly conduct in question); State v. Cordrey,  C.A. No. 88-07-0000A, Barbiarz, J. (Del. Super. Sept. 28, 1988) (Transcript) (finding a qualified privilege attaches "[e]ven though no confidential sources are involved").
  • •In nonadjudicative hearings, both content and source are unequivocally protected, so long as they were obtained within the scope of professional activities. See 10 Del. C. §§ 4321, 4320 (7).
  • •In an adjudicative context, a reporter may be required to testify to the content of information, while the sources themselves remain protected. 10 Del. C. § 4323 (a). The threshold issue is whether disclosing the content would reveal the source of the information. This appears to be the case whether the information would directly or implicitly identify the source of the information. If disclosure would not reveal the source, the judge uses a balancing test to determine whether that the public interest in disclosure outweighs the public interest in confidentiality. § 4323 (a).
  • •If the untruthfulness of the reporter's claim is demonstrated by a preponderance of the evidence in an adjudicative hearing, the reporter must testify, disclosing both source and content. 10 Del. C. § 4323 (b); see also §§ 4322 (noting the adjudicative context and oath requirement), 4320 (6) (defining "testimony" as giving testimony, providing tangible evidence, submitting to a deposition, or answering interrogatories).
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C. Type of case

The privilege is broader in nonadjudicative proceedings than in adjudicative hearings (those proceedings determining the rights of parties, but not including grand jury proceedings). 10 Del. C. § 4320 (1). While, in either case, a reporter may decline to testify regarding either the source or content of information, the privilege applies in adjudicative proceedings only if the reporter states under oath that the disclosure of the information would violate an express or implied understanding with the source under which the information was originally obtained or would substantially hinder the reporter in the maintenance of existing source relationships or the development of new source relationships." § 4322. Even then, testimony divulging the content of information may be required, so long as it will not reveal the information's source, and the judge determines that the public interest in disclosure outweighs the public interest in confidentiality. § 4323 (a). If the truthfulness of a reporter's claim is challenged, the privilege may be overcome by a preponderance of the evidence. § 4323 (b).

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1. Civil

To the extent that the proceeding determines the rights of parties, the privilege applies. 10 Del. C. § 4320 (1).

Case law demonstrates Delaware's commitment to a strong but qualified privilege in civil claims. In Fuester v. Conrail, the Superior Court adapted the Third Circuit's test in Riley v. City of Chester, 612 F.2d 708, 716 (3d Cir. 1979), noting that the qualified privilege could only be overcome if the subpoenaing party proves three elements:

(1) that "an attempt was made to obtain the information from other sources";

(2) that "the only access to the information is through the journalists and the requested materials"; and

(3) that "the information is critical to the claim."

Fuester v. Conrail, 22 Media L. Rep. (BNA) 2376, 2378 (Del. Super. 1994) (adopting the Third Circuit's test announced in Riley v. City of Chester, 612 F.2d 708, 716 (3d Cir. 1979), following United States v. Criden, 633 F.3d 346 (3d Cir. 1980)).

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2. Criminal

To the extent that the proceeding determines the rights of parties, the privilege applies. § 4320 (1). Case law also demonstrates Delaware's commitment to the strength of the qualified privilege in a criminal setting.

When the State pursues information from a reporter by subpoena in order to prosecute a defendant, the test requires the court to balance four factors:

(1) the importance of the issue on which the information is relevant;

(2) the State's efforts to acquire the information from alternative sources;

(3) the circumstances under which the reporter obtained the information; and

(4) the likely effect that disclosure of the information will have on the future flow of information to the public.

State v. Rogers, 820 A.2d 1171, 1180-82 (Del. Super. 2003). See also Fuester v. Conrail, 22 Media L. Rep. (BNA) 2376, 2378 (Del. Super.1994). Cases also cite United States v. Cuthbertson, 630 F.2d 139, 146 (3d Cir. 1980) (holding that the Riley test applies both to civil and criminal contexts).

When a defendant in a criminal case pursues information from a reporter by subpoena, a modified version of the test applies. In order to sustain a subpoena and obtain a reporter's materials or testimony, the party seeking the information must clearly and specifically demonstrate that the information sought:

(1) is relevant and material to the defense;

(2) is unavailable from other sources;

(3) has been unsuccessfully sought from other sources; and

(4) that nonproduction would violate a substantial right of the defendant.

State v. McBride, Nos. IK-80-5-0058, IK-80-5-0059 and IK-80-06-0227, Wright, J. (Del. Super. May 6, 1981), affirmed on other grounds, 477 A.2d 174 (Del. 1984) (adopting the Third Circuit's test in United States v. Criden, 633 F.2d 346 (3d Cir. 1980)).

It should be noted that the test presents a lowered standard that accounts for a defendant's Sixth Amendment rights to compel witnesses to his defense. See U.S. Const. amend.VI. The first component, rather than "critical to the claim," is merely "relevant and material" to the claim. The final component more explicitly addresses the Sixth Amendment concerns. Effectively, the test implements the balancing test required under 10 Del. C. § 4323 and shifts the burden of proof to the party opposing the subpoena to demonstrate that retaining the privileged status of the information will not jeopardize the defense. Stated differently, the reporter should demonstrate that withholding the information would not impinge upon the defendant's Sixth Amendment rights.

Notwithstanding the lower standard when a defendant subpoenas the reporter, no cases have successfully challenged a claim of privilege. In McBride, the court quashed a subpoena because, on the record, the defendant could not justifiably believe that letters she had sent to a reporter contained information relevant or material to her defense. State v. McBride, Slip op. at 1. In State v. Hall, the court quashed a subpoena where other witnesses could provide similar information as the subpoenaed reporter. State v. Hall, 16 Med. L. Rptr. 1414 (Del. Super/ March 8, 1989).

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3. Grand jury

Because grand jury proceedings do not determine the rights of parties, but merely investigate and/or bring charges, they are "nonadjudicative," and a reporter may decline to provide either the source or the content of information without qualification. 10 Del. C. § 4321. Grand jury proceedings are explicitly excluded from the definition of adjudicative proceedings. § 4320 (1). Even the ability to challenge the truthfulness of the reporter's statement is precluded in nonadjudicative proceedings. § 4323 (b).

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D. Information and/or identity of source

In adjudicative hearings, a reporter may decline to testify regarding either the source or content of information, so long as the reporter affirms the importance of nondisclosure. 10 Del. C. § 4322; see also supra Part III.C. The threshold issue is whether disclosing the content would reveal the source of the information. This is true whether the information would directly or implicitly identify the source of the information. If disclosure would not reveal the source, the judge uses a balancing test to determine whether that the public interest in disclosure outweighs the public interest in confidentiality. § 4323 (a); see also Fuester v. Conrail, 22 Media L. Rep. (BNA) 2376 (Del. Super. 1994).

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E. Confidential and/or nonconfidential information

Delaware makes no distinction between confidential and non-confidential information. See State v. Hall, 16 Med. L. Rptr. 1414 (Del. Super. Mar. 8, 1989). All information--regardless of confidential status--appears to be equally protected. State v. Cordrey, Del. Super., C.A. No. 88-07-0000A, Barbiarz, J. (September 28, 1988) (Transcript) (finding a qualified privilege attaches "[e]ven though no confidential sources are involved").

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F. Published and/or non-published material

Delaware's privilege applies equally to published and non-published materials. See Fuester v. Conrail, 22 Media L. Rep. (BNA) 2376 (Del. Super.1994) (quashing subpoena for both published and unpublished photographs); State v. McBride,  Nos. IK-80-5-0058, IK-80-5-0059 and IK-80-06-0227, Wright, J. (Del. Super. May 6, 1981), affirmed on other grounds, 477 A.2d 174 (Del. 1984) (quashing subpoena for unpublished letters sent to a reporter).

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G. Reporter's personal observations

The statute explicitly excepts reporters who have personally observed or participated in an act involving physical violence or property damage. 10 Del. C. § 4320 (7). However, even this exception has been narrowly construed, and is subject to Riley's tripartite test. See State v. Hall, 16 Med. L. Rptr. 1414 (Mar. 8, 1989) (quashing subpoena ad testificandum when reporters attended a rally in their official capacities and personally witnessed the disorderly conduct in question); State v. Cordrey, Del. Super., C.A. No. 88-07-00 00A, Barbiarz, J. (September 28, 1988) (Transcript) (quashing subpoena for reporter who witnessed courtroom events).

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H. Media as a party

The statute does not specify whether the privilege is different where the media is a party and where it is not. So long as an individual or agency fits the definition of a reporter," the privilege applies. See 10 Del. C. § 4320 (4).

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I. Defamation actions

Neither specified in the statute, nor litigated.

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IV. Who is covered

A. Statutory and case law definitions

The statutory privilege is limited to "reporters," who are defined as any journalist, scholar, educator, polemicist, or other individual." 10 Del. C. § 4320 (4). To fall under the definition, these individuals must meet one of two additional criteria. First, at the time he obtained the information, she must either earn her "principal livelihood" through her reporting, or for 3 weeks prior, or 4 of the 8 previous weeks, worked at least 20 hours as a reporter ("obtaining or preparing information for dissemination with the aid of facilities for the mass reproduction of words, sounds, or images"). Id. Second, one may qualify as a reporter under the statute by having received the information "while serving in the capacity of an agent, assistant, employee, or supervisor or a reporter." Id. Thus, traditional news gatherers, such as reporters, editors, news, photojournalists, and news organizations are covered by the statute. See State v. Rogers, 820 A.2d 1171 (Del. Super. 2003) (applying the privilege to a reporter); Fuester v. Conrail, 22 Media L. Rep. (BNA) 2376 (Del. Super.1994) (applying the privilege to a photographer).

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1. Traditional news gatherers

a. Reporter

Explicitly covered. 10 Del. C. § 4320 (4)(a). To qualify as a reporter, one must earn her principal living by, or for 3 consecutive weeks, or 4 of the past 8 weeks, worked at least 20 hours as a reporter. Id.

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b. Editor

Explicitly covered. 10 Del. C. § 4320 (4)(b). The statute explicitly covers an "agent, assistant, employee, or supervisor of an individual who qualifies as a reporter." Id.

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c. News

The statute covers "information," not just "news." Information is defined as "any oral, written or pictorial material and includes, but is not limited to, documents, electronic impulses, expressions of opinion, films, photographs, sound records, and statistical data." 10 Del. C. § 4320 (2). Although the expansive definition indicates a liberal attitude toward what may be considered information, the definition has not been litigated in Delaware.

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d. Photo journalist

Implicitly covered by the statute, and recognized by common law. 10 Del. C. § 4320 (4); Fuester v. Conrail, 22 Media L. Rep. (BNA) 2376 (Del. Super. 1994).

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e. News organization/medium

Covered under the definition of "reporter." See 10 Del. C. § 4320 (4)(b).

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2. Others, including non-traditional news gatherers

Delaware's statute defines "person" to include individuals, corporations, business trusts, estates, trusts, partnerships or associations, governmental bodies, or any other legal entities. 10 Del. C. § 4320 (3). Furthermore, "reporters" include journalists, scholars, educators, polemicists, and other individuals meeting the requirements of the definition laid out supra, Part IV.A.1.a. See also § 4320 (4).

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B. Whose privilege is it?

The privilege belongs to a person or entity who is designated a "reporter." See 10 Del. C. §§ 4320-22, 4325.

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V. Procedures for issuing and contesting subpoenas

A. What subpoena server must do

1. Service of subpoena, time

Although Delaware Code does not specifically address the time by which a subpoena must be served, a subpoena may be quashed for failure to provide "reasonable time for compliance." Super. Ct. Civ. R. 45 (c)(3)(A)(i). The Rules of Civil Procedure acknowledge that subpoenas will sometimes be issued with less than 14 days' notice. Super. Ct. Civ. R. 45 (c)(2)(B).

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2. Deposit of security

No deposits are required under Delaware law.

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3. Filing of affidavit

Delaware has no requirement of affidavits to accompany subpoenas.

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4. Judicial approval

"The Prothonotary shall issue a subpoena, signed but otherwise in blank, to a party requesting it, who shall complete it before service. A Delaware attorney, as an officer of the Court, may also issue and sign a subpoena." Super. Ct. Civ. R. 45 (a)(3). "A subpoena may be served by the Sheriff or by any person who is not a party and is not less than 18 years of age." Super. Ct. Civ. R. 45 (b)(1).

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5. Service of police or other administrative subpoenas

See above.

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B. How to Quash

The best practice is to begin the process of quashing the subpoena immediately after its service. After contacting the other party to gain information, the usual practice is to file the motion as soon as practicable. While the timing may vary depending on the circumstances and the parties, quick and comprehensive action typically serves the moving party well. Along with the motion to quash, include a notice of the motion, certification of service, a brief, affidavits both from the reporter (asserting the privilege) and the editor (describing the chilling effect of compelled testimony on freedom of the press), and a copy of the subpoena. Judges have been particularly amenable to hearing motions quickly.

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1. Contact other party first

The party objecting to subpoenas for the inspection and copying documents must serve its objection upon the issuing party or attorney designated in the subpoena within 14 days of the service of the subpoena. Super. Ct. Civ. R. 45 (c)(2)(B). Claims that documents are privileged or subject to protection must be stated "expressly and shall be supported by a description of the nature of the documents, communications, or things not produced that is sufficient to enable the demanding party to contest the claim." Rule 45 (d)(2).

Although the statute does not require contacting the other party prior to filing a motion to quash a subpoena for testimony, prudence and timing considerations strongly warrant doing so. By contacting the other party prior to filing the motion, one may gain access to information regarding the purpose for which the testimony is being sought. Including such information in the motion often strengthens the quality of the motion. Contacting the other party also speeds the process.

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2. Filing an objection or a notice of intent

For subpoenas regarding inspection and copying of documents, the objecting party must serve its objection upon the issuing party or attorney designated in the subpoena within 14 days of service. Super. Ct. Civ. R. 45 (c)(2)(B). The objection must include sufficient detail to enable the opposing party to contest the claim. Id. The party issuing the subpoena must then move for an order to compel production. Id.

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3. File a motion to quash

a. Which court?

Motions to quash should be filed in the court where the case is pending. In nonadjudicative proceedings, the motions should be filed with the Superior Court.

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b. Motion to compel

Motions to compel are rare. In the event that one is necessary, it should be filed in the court where the case is pending. If the privilege was not asserted in a court proceeding, the motion to compel must be filed in the Superior Court. 10 Del. C. § 4324.

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c. Timing

Objections to subpoenas requiring inspection and copying should be made within 14 days of the issuance of the subpoena, or if production is required sooner than 14 days, before the time specified for compliance. Super. Civ. Rule 45 (c)(2)(B).

The timing requirement is unspecified for subpoenas to testify, although the Rules say that the motion should be timely. Rule 45 (c)(3)(A).

See above regarding practical considerations regarding timing. See supra, Part V.B.3.c.

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d. Language

The motion should make clear reference to at least one of the statutory reasons for quashing or modifying a subpoena: failure to allow reasonable time for compliance, privileged or protected materials, or undue burden, among others. See Super. Ct. Civ. R. 45 (c)(3)(A).

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e. Additional material

Although none is required by statute, practicality and timing mandate attaching a notice of the motion, certification of service, a brief, affidavits of reporter asserting the privilege, affidavit of editor describing the chilling effect of compelled testimony on freedom of the press, and a copy of the subpoena.

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4. In camera review

a. Necessity

Case by case.

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Not specified.

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c. Consequences of refusing

Failure to obey a subpoena may be deemed a contempt of court. Super. Ct. Civ. R. 45(e).

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5. Briefing schedule

Case by case. Although briefing schedules may vary, speed is typically helpful. See above.

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6. Amicus briefs

Amicus briefs are rarely filed in courts other than the Delaware Supreme Court.

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VI. Substantive law on contesting subpoenas

A. Burden, standard of proof

Once asserted, the privilege is presumed applicable, and the party seeking the information is required to overcome the presumption. 10 Del. C. § 4324.

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B. Elements

1. Relevance of material to case at bar

The material must be "necessary" or "critical" to civil claims and criminal claims asserted by the state. See Fuester v. Conrail, 22 Media L. Rep. (BNA) 2376, 2378 (Del. Super. 1994).

The material must be "relevant and material" to criminal claims when a defendant is seeking the information. State v. McBride, Nos. IK-80-5-0058, IK-80-5-0059 and IK-80-06-0227, Wright, J. (Del. Super. May 6, 1981), affirmed on other grounds, 477 A.2d 174 (Del. 1984). The lower standard reflects the concern for the defendant's Sixth Amendment rights. See supra, Part III.C.2.

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2. Material unavailable from other sources

Materials must be unavailable from other sources. Whether in a civil or criminal context, unavailability has two components. First, the party seeking to compel testimony must demonstrate that it has sought the information from other sources. Second, the party must demonstrate that the information is unavailable elsewhere. See Fuester v. Conrail, 22 Media L. Rep. (BNA) 2376, 2378 (Del. Super. 1994); State v. McBride, Nos. IK-80-5-0058, IK-80-5-0059 and IK-80-06-0227, Wright, J. (Del. Super. May 6, 1981), affirmed on other grounds, 477 A.2d 174 (Del. 1984).

Although the scope of searching for information has not been litigated, unavailability requires more than that the information sought provides a different perspective than available through other sources. See, e.g., Fuester v. Conrail, 22 Media L. Rep. (BNA) 2376, 2378 (Del. Super. 1994) (applying the privilege, in a civil case, to outtakes of television news camera footage of a live event because police were also witnesses); State v. Hall, 16 Med. L. Rptr. 1414 (March 8, 1989) (quashing subpoena ad testificandum in a criminal case when other witnesses, besides reporters, personally witnessed the disorderly conduct in question); State v. Cordrey,  C.A. No. 88-07-0000A, Barbiarz, J. (Del. Super. Sept. 28, 1988) (Transcript) (quashing subpoena where reporter was not the only one present who witnessed procedural events in courtroom that may have created jeopardy).

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a. How exhaustive must search be?

The circumstances of a particular case will determine how exhaustive a search must be performed. For instance, in State v. Rogers the Superior Court found that sufficient efforts had been performed in a criminal case where the State had only found out about the existence of the information six days prior to trial and had tracked down another witness to the information. State v. Rogers, 820 A.2d 1171, 1181-82 (Del. Super. 2003). The Court noted, however, that under different circumstances this search might not have been sufficient. Id. at 1181. By contrast, in Fuester v. Conrail the Superior Court found the party's efforts to be insufficient where the party had access to the information from another source. Fuester v. Conrail, 22 Media L. Rep. (BNA) 2376 (Del. Super. 1994).

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

Not litigated.

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c. Source is an eyewitness to a crime

Although this precise issue has not been litigated in Delaware, the Delaware Reporters' Privilege Act excludes the privilege from applying to "any situation in which the reporter is an eyewitness to or participant in an act involving physical violence or property damage." 10 Del. C. § 4320(7).

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3. Balancing of interests

Prior to balancing interests, the Court must find that disclosing the content would not reveal the source of the information. The judge then uses a balancing test to determine whether that the public interest in disclosure outweighs the public interest in confidentiality. 10 Del. C. § 4323 (a).

In cases where a criminal defendant is seeking testimony or documents, the balance weighs more heavily on the side of disclosure. See supra, Parts III.C.2.; VI.B.1.

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4. Subpoena not overbroad or unduly burdensome

In addition to the first three grounds that are found within the Reporters' Privilege Act, the Rules of Civil Procedure also provide general guidance on dealing with subpoenas. Specifically, Rule 45 dictates that overbroad and unduly burdensome subpoenas will be quashed or modified. Super. Ct. Civ. R. 45 (c)(3). If the materials are both unduly burdensome and "necessary," the party seeking the information must compensate the other party, or the Court may specify the conditions of production or appearance. Id.

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5. Threat to human life

Although not a part of the Reporters' Privilege Act, the Rules of Civil Procedure enable the court to consider a person's safety as part of its decision-making process on whether the quash the subpoena. Super. Ct. Civ. R. 45 (c)(3)(B)(ii).

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6. Material is not cumulative

If the material or testimony will be cumulative of other materials or testimony, it does not meet the "necessary" or "critical" standard in a civil case or a criminal case where the state seeks the information, and the privilege will be maintained. See supra, Part VI.B.2. See also Fuester v. Conrail, 22 Media L. Rep. (BNA) 2376, 2378 (Del. Super. 1994).

Likewise, cumulative materials in criminal cases where the defendant seeks materials have been disallowed. See State v. Hall, 16 Med. L. Rptr. 1414 (March 8, 1989) (quashing subpoena for testimony when reporters attended a rally in their official capacities and personally witnessed the disorderly conduct in question, when other witnesses were available); State v. Cordrey, C.A. No. 88-07-0000A, Barbiarz, J. (Del. Super. Sept. 28, 1988) (Transcript) (quashing subpoena where reporter was not the only one present who witnessed procedural events in courtroom that may have created jeopardy).

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7. Civil/criminal rules of procedure

The Rules of Civil Procedure dictate that overbroad and unduly burdensome subpoenas will be quashed or modified. Super. Ct. Civ. R. 45 (c)(3). If the materials are both unduly burdensome and "necessary," the party seeking the information must compensate the other party, or the Court may specify the conditions of production or appearance. Id.

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8. Other elements

No additional elements have been required to overcome the privilege.

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C. Waiver or limits to testimony

10 Del. C. § 4325 acknowledges that a reporter may waive the privilege.

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1. Is the privilege waivable?

Because the privilege belongs to the reporter, she may waive it. However, a reporter's decision to waive with respect to certain facts does not waive the privilege with respect to other facts for which she continues to claim the privilege. Likewise, third party disclosure does not constitute waiver. 10 Del. C. § 4325.

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2. Elements of waiver

a. Disclosure of confidential source's name

Third party disclosure does not constitute waiver. 10 Del. C. § 4325.

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b. Disclosure of non-confidential source's name

Third party disclosure does not constitute waiver. 10 Del. C. § 4325.

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c. Partial disclosure of information

By waiving her privilege with respect to certain facts a reporter does not waive the privilege with regard to other facts for which she continues to claim the privilege. 10 Del. C. § 4325.

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d. Other elements

Not litigated.

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3. Agreement to partially testify act as waiver?

This has not been litigated. But, by waiving her privilege with respect to certain facts a reporter does not waive the privilege with regard to other facts for which she continues to claim the privilege. 10 Del. C. § 4325.

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VII. What constitutes compliance?

A. Newspaper articles

Newspapers and periodicals are self-authenticating. D.R.E. 902(6).

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B. Broadcast materials

Not litigated.

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C. Testimony vs. affidavits

Although this issue has not been extensively litigated, at least one Delaware Court has found that an affidavit by the reporter is sufficient and indicated that "an affidavit from the reporter will, in most cases, be sufficient." State v. Rogers, 820 A.2d 1171, 1179 (Del. Super. 2003).

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D. Non-compliance remedies

1. Civil contempt

a. Fines

The statute does not specify a cap on the amount a reporter may be fined for refusing to comply with the court's order to testify or produce documents.

Courts are authorized, at their discretion, to issue fines for civil contempt. See, e.g., 10 Del. C. § 9506 (enabling Justices of the Peace to impose fines of up to $100 for civil contempt). In addition to fines and possible incarceration, parties who fail to comply may also be liable for damages to the aggrieved party. 10 Del. C. § 4301.

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b. Jail

The statute does not specify a cap on the amount of jail time a judge may impose upon a reporter for refusing to testify or produce documents.

Courts are authorized to order incarceration for civil contempt at their discretion. See, e.g., 10 Del. C. § 9506 (enabling Justices of the Peace to impose jail time of up to 170 days for civil contempt).

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2. Criminal contempt

Criminal contempt may apply for refusing to testify. 11 Del. C. § 1271. It is punishable by incarceration for a maximum of one year, or a fine not to exceed $2,300. 11 Del. C. § 4206.

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3. Other remedies

There is no statutory or case law addressing this issue.

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VIII. Appealing

A. Timing

Appeals must be made within 30 days of the order. Supr. Ct. R. 6; 10 Del. C. §§ 143, 145, 147, 148, 1051, 1326.

As a practical matter, appeals do not typically occur because of timing concerns.

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1. Interlocutory appeals

A denial of a motion to quash is an interlocutory order and is subject to the appropriate court's appellate rules. The trial court must certify that the issue is substantial, affects a legal right, and meets additional criteria. The party requesting the appeal bears the burden of proof. See generally Supr. Ct. R. 42.

A party subject to an interlocutory order that does not appeal that order immediately does not waive its ability to appeal the issue after final judgment has been entered. 10 Del. C. § 144.

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2. Expedited appeals

Not specified.

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B. Procedure

1. To whom is the appeal made?

Appeals are made to the appropriate appellate court.

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2. Stays pending appeal

There is no stay unless ordered by the trial court, and the determination is discretionary, though reviewable. See Super. Ct. Civ. R. 3, 62(c); Supr. Ct. R. 32.

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3. Nature of appeal

The statute does not address any differences between forms of appeal.

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4. Standard of review

It is unclear whether the determination of whether the privilege applies is a finding of fact or law. As such, the standard of review upon appeal is also unclear.

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5. Addressing mootness questions

Courts have not addressed whether mootness prevents an appeal when the trial or grand jury session for which a reporter was subpoenaed has concluded.

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6. Relief

The statute is unclear whether an appellate court would dissolve a contempt citation or whether it would remand the matter to the trial judge to reconsider. No cases have addressed this issue.

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IX. Other issues

A. Newsroom searches

No newsroom search or seizure cases have been litigated in Delaware. Although there is no express provision under state law limiting the searches of newsrooms, the federal Privacy Protection Act would likely be invoked in the event a state agency attempted to pursue such activity.

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B. Separation orders

There is no statutory or case law addressing separation orders. To the extent that circumstances that could implicate separation orders might arise, attorneys should point to the chilling effects such an order could have on the state's freedom of the press.

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C. Third-party subpoenas

There is no statutory or case law addressing a media interest in fighting subpoenas issued to third parties in an attempt to discover a reporter's source.

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D. The source's rights and interests

There is no statutory or case law addressing sources intervening anonymously to halt disclosure of their identities or suing over disclosure after the fact. It is unclear whether journalists have a First Amendment or other defense to such suits.

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