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District of Columbia

Reporters Privilege Compendium

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

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I. Introduction: History & Background

The District of Columbia has codified the journalist’s privilege against the compelled disclosure of sources, news, and information.  The District of Columbia enacted the Free Flow of Information Act, D.C. Code §§ 16-4701 et seq., in 1992 largely in response to the D.C. Court of Appeals’ decision in Wheeler v. Goulart, 593 A.2d 173 (D.C. 1991), which upheld an order holding a Washington Post reporter in civil contempt for refusing to answer questions regarding sources.  See generally Grunseth v. Marriott Corp., 868 F. Supp. 333, 336 (D.D.C. 1994).

The District’s shield law provides an absolute privilege against compelling testimony about sources, whether or not those sources are confidential.  The shield law also provides a qualified privilege for unpublished news or information, including any notes, outtakes, photographs or photographic negatives, video or sound tapes, film, or other data, irrespective of its nature.  The courts have applied the privilege broadly, concluding that it applies “to information gathered outside of the District, by non-resident journalists, or about events that occurred elsewhere.”  Prentice v. McPhilemy, 27 Med. L. Rptr. 2377, 2381 (D.C. Super. Ct. 1999).  The court also held that the shield law applies to documents created or sources found prior to the enactment of the Free Flow of Information Act.  Id.

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II. Authority for and source of the right

In 1992, the District of Columbia’s City Council enacted (with Congress’s approval) the Free Flow of Information Act, D.C. Code §§ 16-4701 et seq.  (Under the District’s Home Rule Act, the Council may pass legislation for the District with certain exceptions; an act of the Council becomes effective if Congress does not pass a joint resolution disapproving of the act within a specified time period, generally 30 or 60 days.  D.C. Code §§ 1-204.04, 1-206.02.)

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A. Shield law statute

In 1992, the District of Columbia’s City Council enacted (with Congress’s approval) the Free Flow of Information Act, D.C. Code §§ 16-4701 et seq.  (Under the District’s Home Rule Act, the Council may pass legislation for the District with certain exceptions; an act of the Council becomes effective if Congress does not pass a joint resolution disapproving of the act within a specified time period, generally 30 or 60 days.  See D.C. Code §§ 1-204.04, 1-206.02.)

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B. State constitutional provision

C. Federal constitutional provision

D. Other sources

III. Scope of protection

A. Generally

The District’s shield law provides broad protection for news, information, and sources.  Under the statute, testimony about sources (whether or not confidential) can never be compelled when the source was contacted by the news media during an official “newsgathering activity.”  D.C. Code § 16-4702(1).  However, a court may compel disclosure of news or information other than sources if the person seeking the information can show, by clear and convincing evidence, that: (1) the news or information is relevant to a significant legal issue before a judicial, legislative, administrative, or other body that has the power to issue a subpoena; (2) the news or information could not, with due diligence, be obtained by any alternative means; and (3) an overriding public interest in disclosure exists.  D.C. Code §§ 16-4702, 4703.  The District’s shield law provides that this privilege is not waived when the journalist publishes or disseminates the source or portion of the news or information while pursuing a professional activity.  D.C. Code § 16-4704.

A D.C. court also has held that the identities of anonymous internet speakers are subject to a qualified privilege under the First Amendment.  Solers, Inc. v. Doe, 35 Med. L. Rptr. 1297 (D.C. Super. Ct. 2006), vacated and remanded, 977 A.2d 941 (D.C. 2009).  However, this privilege is not absolute, and the D.C. Court of Appeals has instructed that when presented with a motion to quash a subpoena seeking the identity of an anonymous defamation defendant, a court should: “(1) ensure that the plaintiff has adequately pleaded the elements of the defamation claim, (2) require reasonable efforts to notify the anonymous defendant that the complaint has been filed and the subpoena has been served, (3) delay further action for a reasonable time to allow the defendant an opportunity to file a motion to quash, (4) require the plaintiff to proffer evidence creating a genuine issue of material fact on each element of the claim that is within its control, and (5) determine that the information sought is important to enable the plaintiff to proceed with his lawsuit.”  Solers, 977 A.2d at 954.  Addressing the fourth element of that test, the Court of Appeals subsequently clarified that in the absence of evidence of “damages suffered as a direct consequence of the alleged defamation,” a plaintiff cannot “overcome a speaker’s First Amendment right to anonymity with little more than an allegation of defamation and its own decision to expend money in response.”  Software & Info. Industry Ass’n v. Solers, Inc., 40 Med. L. Rptr. 1194 (D.C. 2012).

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B. Absolute or qualified privilege

The privilege against compelled disclosure for news media sources is absolute, regardless of whether the source was promised confidentiality.  D.C. Code § 16-4702(1).  The privilege against compelled disclosure of news or information is qualified and may only be compelled if the person seeking the news or information can prove, by clear and convincing evidence, that: (1) the news or information is relevant to a significant legal issue before a judicial, legislative, administrative, or other body that has the power to issue a subpoena; (2) the news or information could not, with due diligence, be obtained by any alternative means; and (3) there is an overriding public interest in disclosure.  D.C. Code § 4703; see also Prentice v. McPhilemy, 27 Med. L. Rptr. 2377, 2381 (D.C. Super. Ct. 1999).

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C. Type of case

1. Civil

The District’s shield law, and the cases decided under it, make no distinction between civil and criminal cases.

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2. Criminal

The District’s shield law, and the cases decided under it, make no distinction between civil and criminal cases.  In pre-shield law precedent, the District recognized the privilege in criminal cases as well as civil.  For example, in Payne v. United States, 516 A.2d 484 (D.C. 1986), a criminal defendant argued that a witness’s identification of him was unreliable and that he needed the impeachment testimony of a Washington Post reporter who covered the police investigation.  The D.C. Court of Appeals affirmed the quashing of a subpoena to that reporter on the grounds that his testimony was not necessary and thus was irrelevant to the reliability of the identification.

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3. Grand jury

The District’s shield law, and the cases decided under it, make no distinction between grand jury subpoenas and other subpoenas.

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D. Information and/or identity of source

The District’s shield law provides absolute protection for the identity of a source.  Given this broad protection, the law arguably protects information that implicitly would identify a source.  See, e.g., Prentice v. McPhilemy, 27 Med. L. Rptr. 2377, 2382 n.10 (D.C. Super. Ct. 1999) (noting that “sources” has been defined by the Third Circuit to include “not only the identity of the person, but . . . documents, inanimate objects, and all sources of information”) (internal marks omitted).  However, no D.C. case law exists on this precise point.

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E. Confidential and/or nonconfidential information

The District’s shield law, and the cases decided under it, do not distinguish between confidential and non-confidential sources.  In a case decided prior to the enactment of the D.C. shield law, the D.C. Court of Appeals held that a reporter could be compelled to identify a source she already had disclosed to two different people on separate occasions outside of her newsgathering function.  Wheeler v. Goulart, 593 A.2d 173 (D.C. 1991) (“[o]nce a newspaper reporter discloses the source under the circumstances presented here, the rationale for upholding any qualified privilege ceases”).  However, that holding has been superseded by the anti-waiver provision of the D.C. shield law, D.C. Code § 16-4704.

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F. Published and/or non-published material

The District’s shield law absolutely protects testimony about sources’ identities regardless of whether that information has been published.  Grunseth v. Marriott Corp., 868 F. Supp. 333, 336 (D.D.C. 1994) (noting that the law “accords total protection to news sources, whether confidential or not, and whether disclosed to others or not”); Prentice v. McPhilemy, 27 Med. L. Rptr. 2377, 2381 (D.C. Super. Ct. 1999) (same); D.C. Code § 16-4702.  Non-published news or information other than sources is protected by qualified privilege under the District’s shield law.  Grunseth, 868 F. Supp. at 336; Prentice, 27 Med. L. Rptr. at 2381; D.C. Code §§ 16-4702, 4703.

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G. Reporter's personal observations

The District’s shield law, and the cases decided under it, do not distinguish between situations where the reporter has personally observed the matter on which he reported and situations where the reporter has gathered the information second-hand.

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H. Media as a party

The District’s shield law, and the cases decided under it, does not differentiate between litigation where the media is a party and cases where the media is not a party.  The D.C. Superior Court has applied the shield law to allow a media defendant to refuse to produce information regarding his sources and certain notes and other information.  Prentice v. McPhilemy, 27 Med. L. Rptr. 2377 (D.C. Super. Ct. 1999) (holding shield law applies in defamation actions).

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I. Defamation actions

The District’s shield law applies in defamation actions as it does in any other action.  Prentice v. McPhilemy, 27 Med. L. Rptr. 2377 (D.C. Super. Ct. 1999).  In Prentice, the D.C. Superior Court noted that nothing in the plain language of the Free Flow of Information Act or its legislative history suggests that the D.C. Council intended to carve out an exception to the Act’s coverage for libel defendants.  The court noted that, in its official report, the Council’s Judiciary Committee recognized that “[t]wenty-eight states have adopted report shield laws, with varying degrees of qualified and absolute immunity from disclosure of sources and/or disclosure of information.” Id. at 2383 (citation omitted).  Based on this language, the court reasoned the Council was well aware that some states had enacted statutes limiting the protection afforded to libel defendants.  Id.  Consequently, the court determined that the absence of such a provision in the District’s shield law demonstrated an intent by the Council not to exempt defamation cases or libel defendants from the Act’s scope.  Id.; cf. Braden v. News World Commc’ns, Inc., 18 Med. L. Rptr. 2040 (D.C. Super. Ct. 1991) (holding, prior to passage of the Free Flow of Information Act, that libel plaintiff could not compel a newspaper’s disclosure of source where plaintiff had not exhausted all alternative sources for such information).

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IV. Who is covered

The District’s shield law defines “news media” as newspapers, magazines, journals, press associations, news agencies, wire services, radio, television, or any printed, photographic, mechanical, or electronic means of disseminating news and information to the public.  D.C. Code § 16-4701.

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A. Statutory and case law definitions

1. Traditional news gatherers

a. Reporter

The District’s shield law does not include a definition of “reporter.”  However, the statute applies to “any person who is or has been employed by the news media in a news gathering or news disseminating capacity.”  D.C. Code § 16-4702.

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b. Editor

The District’s shield law does not define an “editor.”  However, the statute applies to “any person who is or has been employed by the news media in a news gathering or news disseminating capacity.”  D.C. Code § 16-4702.

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c. News

The District’s shield law does not define “news” or “information.”  Instead, the Code refers to what a person was doing in coming into possession of the material at issue.  Thus, D.C. Code § 16-4702 protects “news or information” gathered “while acting in an official news gathering capacity” and “in the course of pursuing professional activities.”  D.C. Code §§ 16-4702(1) & (2).

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d. Photo journalist

The District’s shield law does not define “photojournalist.”  However, the statute applies to “any person who is or has been employed by the news media in a news gathering or news disseminating capacity.” D.C. Code § 16-4702.

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e. News organization/medium

The District’s shield law defines “news media” as “newspapers, magazines, journals, press associations, news agencies, wire services, radio, television, or any printed, photographic, mechanical, or electronic means of disseminating news and information to the public.”  D.C. Code § 16-4701.

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2. Others, including non-traditional news gatherers

The District’s shield law should apply to non-traditional newsgatherers, as the definition of “news media” includes “any printed, photographic, mechanical, or electronic means of disseminating news and information to the public.”  D.C. Code § 16-4701 (emphasis added).  For instance, the D.C. Superior Court concluded that the shield law applied to a non-resident journalist in a foreign jurisdiction who was writing a book.  Prentice v. McPhilemy, 27 Med. L. Rptr. 2377, 2380-81 (D.C. Super. Ct. 1999).

Moreover, the District’s shield law broadly protects news or information “procured by a person while employed by the news media in the course of pursuing professional activities” and sources “procured by a person while employed by the news media and acting in an official news gathering capacity.”  D.C. Code §§ 16-4701, 4702.  It appears that all news media fall within that scope, so long as the individual asserting the privilege can establish that the information in question was obtained as part of the newsgathering process.

Despite the statute’s use of the term “employed by the news media,” case law suggests that freelancers, either on specific assignment or otherwise, and independent authors would be protected by the statue.  See Prentice, 27 Med. L. Rptr. 2377.

A D.C. trial court also has held that a qualified First Amendment privilege protected a trade association from having to disclose the identity of a whistleblower who communicated anonymously over the internet.  Solers, Inc. v. Doe, 35 Med. L. Rptr. 1297 (D.C. Super. Ct. 2006), vacated and remanded, 977 A.2d 941 (D.C. 2009).

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B. Whose privilege is it?

The privilege set forth in the District’s shield law belongs to a person who is or has been employed by the news media in a newsgathering or news disseminating capacity.  D.C. Code § 16-4702.

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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 defeat or quash the service.

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A. What subpoena server must do

1. Service of subpoena, time

No special subpoena rules exist regarding the news media.  Rather, in the D.C. court system, civil subpoenas to compel disclosure from a non-party journalist or news media entity, like any other nonparty subpoenas, are governed by SCR-Civ. 45.  Subpoenas in criminal proceedings are governed by SCR-Crim. 17.

Under SCR-Civ. 45, a subpoena must be served by a person who is not a party to the action and is 18 years or older.  Subpoenas may be served upon a person located anywhere within the District or within 25 miles of the District.  The subpoena must: provide the name of the court, the title of the civil action, its civil action number, its calendar number, the judge or magistrate judge to whom the matter is assigned, and the time and place for the deposition or production of documents; command the subpoenaed person to attend the deposition and provide testimony, produce and permit inspection and copying of documents or other tangible items in the person’s possession, custody, or control, or allow the inspection of a premises; and include the text of SCR-Civ. 45(c) and (d).

Under SCR-Crim. 17, a subpoena may be served by the U.S. Marshal, a Deputy Marshal, or by any other person who is not a party and who is 18 years or older.  The subpoena must state the name of the court and the title of the proceeding, and it must command each person to whom it is directed to attend and give testimony at the time and place specified therein.  A subpoena requiring attendance of a witness at a trial or hearing issued under SCR-Crim. 17 may be served at any place within the District or at any place outside the District that is within 25 miles of the place of the hearing or trial specified in the subpoena.  However, a subpoena directed to a witness in a case in which a felony is charged may be served at any place within the United States upon order of a judge of the court.

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2. Deposit of security

The District does not require that the subpoenaing party deposit any security in order to procure the testimony or materials of the reporter.  However, the subpoenaing party must provide with the subpoena, unless a sufficient showing is made that the defendant cannot pay, a check sufficient to compensate the witness for one day’s travel expenses and testimony fee.  See SCR-Civ. 45(b)(1); SCR-Crim. 17(b)(3) & (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 SCR-Civ. 6(c), 4B Wright & Miller, Fed. Prac. & Proc. Civ. § 1170 n.1 (“The use of affidavits in support of motions is recognized in Rule 6(d) and the verification of motions by affidavit is the general practice.”); SCR-Crim. 47(d).

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4. Judicial approval

Judicial approval is not necessary for a civil subpoena issued under SCR-Civ. 45.  However, for criminal matters, under SCR-Crim. 17(b)(2), 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

There is no statutory or case law addressing this issue.

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B. How to Quash

Under SCR-Civ. 45(c)(3), a court may quash or modify a civil subpoena that does not permit a reasonable time for compliance, requires a deponent to travel further than is permitted by the rules, requires the disclosure of privileged information absent waiver or an exception, or unduly burdens the witness.  When ruling on a motion to quash or modify a subpoena, the court generally considers: (1) the relevance of the evidence sought; (2) the need for the party seeking the evidence; (3) any likely hardship faced by the witness in responding to the subpoena; and (4) whether the witness is a party to the action.  In re Herndon, 596 A.2d 592, 596 (D.C. 1991).

SCR-Crim. 17 does not specify procedures for quashing or otherwise objecting to a subpoena that commands appearance to give testimony.  However, the rule implies that a party opposing a subpoena to produce documents should file a motion to quash.  See SCR-Crim. 17(c)(2).  The rule also provides that any person who fails “without adequate excuse” to obey a properly served subpoena may be found in contempt of the court.  SCR-Crim. 17(g).

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1. Contact other party first

Under the District’s civil procedure rules, nearly all motions filed in the Superior Court’s Civil Division are subject to the consent requirement in SCR-Civ. 12-I(a), which provides that a movant in a civil case must attempt to obtain consent for the relief requested in a motion from any party affected by such request prior to filing a motion.

Although criminal rules require the motion to be served on the other party, there is no similar provision requiring the movant to contact the opposing party in advance.  SCR-Crim. 49(a).

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2. Filing an objection or a notice of intent

The criminal subpoena provisions suggest that a party seeking to object to the subpoena should move to quash.  SCR-Crim. 17(c)(2) (“On motion made promptly, the court may quash or modify the subpoena if compliance would be unreasonable or oppressive.”).

 

The civil subpoena provisions suggest that when objecting to a subpoena to command appearance at a hearing or trial or deposition, the objecting party should move to quash.  SCR-Civ. 45(c)(3).  However, if objecting to a subpoena to provide records or information, a written objection may suffice when supported by a description of the nature of the documents, communications, or things not produced.  SCR-Civ. 45(c)(2)(B) & (d)(2).  The written objection must be served within 14 days of the service of the subpoena, or before the time specified in the subpoena for compliance if less than 14 days.  SCR-Civ. 45(c)(2)(B).

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3. File a motion to quash

a. Which court?

A motion to quash pursuant to the shield law or a motion to compel discovery must be filed with the court that issued the subpoena.  However, if the court that issued the subpoena does not have jurisdiction over the party, the subpoenaed party should file a miscellaneous matter in the court in its jurisdiction and seek a protective order.

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b. Motion to compel

No statutory or case law exists on this issue.  When challenging a subpoena, it generally is advisable to move to quash or otherwise object rather than wait for a motion to compel.

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c. Timing

A motion to quash is timely if made before the date specified in the subpoena for compliance.  In considering a motion to quash, the trial court may hold a hearing and, as necessary, entertain any relevant testimony.  E.g., Wheeler v. Goulart, 593 A.2d 173, 178 (D.C. 1991) (trial court held hearing on motion to quash and heard testimony from several witnesses).

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d. Language

The person seeking to quash the subpoena must provide language establishing that the privilege applies.  Prentice v. McPhilemy, 27 Med. L. Rptr. 2377, 2383 (D.C. Super. Ct. 1999) (noting burden on person seeking to invoke the privilege to establish that he falls within the scope of the D.C. shield law).  Accordingly, the movant must establish that he or she obtained the information or source in the course of pursuing professional activities, while employed by the news media (as the D.C. shield law defines that term).  D.C. Code §§ 16-4701, 16-4702.  If unpublished information is involved, the movant also should show that the information was not published.

Additionally, to successfully quash the subpoena, the movant may want to show that the subpoena does not permit a reasonable time for compliance, requires travel further than is permitted by the rules, or imposes an undue burden. SCR-Civ. 45(c)(3); SCR-Crim. 17(c)(2).

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e. Additional material

No case law or statutes addressing this issue exist.

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4. In camera review

a. Necessity

Case law suggests that a court has discretion to order in camera review of the information at issue, and that the court generally will not exercise such discretion unless it is necessary to review the information to assess a claim of privilege.  E.g., Prentice v. McPhilemy, 27 Med. L. Rptr. 2377, 2388 (in camera review not necessary where documents undoubtedly were protected under the D.C. shield law, and premature for other documents where the person withholding the information had not indicated the specific legal basis for doing so); see also Carter v. United States, 614 A.2d 913, 916 (D.C. 1992) (noting, in the context of a different privilege, that “the trial court has discretion to conduct an in camera hearing in the course of deciding whether to require disclosure,” and holding that the trial court “should require a showing of a factual basis adequate to support” request for in camera review).

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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

In both civil and criminal cases, the general motions practice rules govern.  An opposition to a motion to quash is therefore due within 14 days from service of the motion or such further time as the court may grant.  SCR-Civ. 12-I(e); SCR-Crim. 12-I(b).

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6. Amicus briefs

Pursuant to Rule 29(a) of the Rules of the D.C. Court of Appeals, a brief of an amicus curiae may be filed only with leave of court or if accompanied by written consent of all parties.  The motion for leave must be accompanied by the proposed brief, identify the interests of the applicant, and state the reasons why a brief of an amicus curiae is desirable and why the matters asserted are relevant to the disposition of the case.

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VI. Substantive law on contesting subpoenas

This section analyzes the substantive law that makes up the reporter’s privilege and how the party issuing a subpoena can avoid the protections of the privilege.

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A. Burden, standard of proof

The person seeking to invoke the privilege must first establish that he or she falls within the ambit of the shield law, i.e., that he or she is a member of the news media and that the information sought concerns a source or otherwise was collected or obtained while acting in an official newsgathering capacity.  Prentice v. McPhilemy, 27 Med. L. Rptr. 2377, 2383 (D.C. Super. Ct. 1999).  After a party establishes that information sought falls within the scope of the shield law, the burden shifts to the party seeking the information to show that it is not protected.  The District’s shield law accords absolute protection to news sources, whether confidential or not, and whether disclosed to third parties or not.  Grunseth v. Marriott Corp., 868 F. Supp. 333, 336 (D.D.C. 1994); Prentice, 27 Med. L. Rptr. at 2381.  Thus, if the person receiving the subpoena demonstrates that the requested information concerns sources of information obtained while acting in an official newsgathering or reporting capacity, the inquiry ends.  However, if the information sought concerns material other than a source, then the court must perform the balancing test set out in D.C. Code §16-4703.

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B. Elements

If the information sought is news or information otherwise protected from disclosure under § 16-4702(2), i.e., information that has not been published, then a movant must establish the following by clear and convincing evidence in order to overcome the privilege:

(1) the news or information is relevant to a significant legal issue before a judicial, legislative, administrative, or other body that has the power to issue the subpoena;

(2) the news or information could not, with due diligence, be obtained by any alternative means; and

(3) there is an overriding public interest in the disclosure.

D.C. Code § 16-4703; Prentice v. McPhilemy, 27 Med. L. Rptr. 2377, 2381 (D.C. Super. Ct. 1999); see also Gray v. Hoffman-LaRoche, Inc., 2002 WL 1801613, 30 Med. L. Rptr. 2376 (D.D.C. Mar. 27, 2002) (applying D.C. law and granting newspaper reporter’s motion to quash trial deposition subpoena where plaintiff failed to show, by clear and convincing evidence, that: (1) the information sought “goes to the heart of the matter of the pending litigation; (2) the plaintiff has exhausted alternative means for obtaining the information; and (3) the disclosure of the information is in the public interest”);

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1. Relevance of material to case at bar

Case law suggests that requested information must go to the heart of the claims and be essential to establish liability or a defense for the privilege to be overcome.  Grunseth v. Marriott Corp., 868 F. Supp. 333, 335-36 (D.D.C. 1994) (noting that the criteria for applying the qualified privilege for news or information under the District’s shield law closely track those used for the First Amendment privilege test as set out in Zerilli v. Smith, 656 F.2d 705 (D.C. Cir. 1981)).

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2. Material unavailable from other sources

The person seeking disclosure must establish that the information sought remains unavailable from other sources.  D.C. Code § 4703(a)(2); Prentice v. McPhilemy, 27 Med. L. Rptr. 2377, 2381 (D.C. Super. Ct. 1999); see also Braden v. News World Commc’ns, Inc., 18 Med. L. Rptr. 2040 (D.C. Super. Ct. 1991) (holding, prior to passage of D.C. shield law, that a libel plaintiff could not compel disclosure where plaintiff had not exhausted all alternative sources for the information).

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a. How exhaustive must search be?

No cases decided under the D.C. shield law address this issue.  Case law suggests that the criteria for applying the Free Flow of Information Act’s privilege closely tracks the First Amendment’s protections.  Grunseth v. Marriott Corp., 868 F. Supp. 333, 335-36 (D.D.C. 1994).  Exhaustion case law from the D.C. federal courts may therefore be persuasive.

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 has already conducted a search for the material outside of subpoenaing the news media or that such a search would be futile.  Prentice v. McPhilemy, 27 Med. L. Rptr. 2377, 2381 (D.C. Super. Ct. 1999) (noting that plaintiffs had demonstrated they could not obtain the information by means other than through discovery obtained from the media defendant); D.C. Code 16-4703(a)(2).

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c. Source is an eyewitness to a crime

No statutory or case law addressing this issue exists.

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3. Balancing of interests

Because the identity of a source is absolutely privileged, the D.C. shield law does not require a balancing of interests if sources are at issue.  Grunseth v. Marriott Corp., 868 F. Supp. 333, 336 (D.D.C. 1994).  However, a balancing test is required if the information at issue is unpublished news or other related information.

In Prentice v. McPhilemy, 27 Med. L. Rptr. 2377, 2381 (D.C. Super. Ct. 1999), the court concluded that the libel plaintiffs had established the information they sought was relevant to the subject matter, and that the plaintiffs could not obtain the information from any other source.  Nevertheless, the court denied the motion to compel otherwise-privileged information because the plaintiffs had not persuaded the court of an “overriding public interest” in disclosure.  Id.  The court specifically rejected plaintiffs’ arguments that the paramount interest at stake was the search for truth, the right of civil litigants to discover information genuinely relevant to their lawsuit, and an individual’s interest in protecting his or her reputation.  Id.

On a motion for reconsideration, the libel plaintiffs argued that the Prentice ruling rendered D.C. Code § 16-4703 “inapplicable in libel cases because no libel plaintiff could ever demonstrate a public interest sufficient to justify compelled disclosure.”  Id. at 2387.  The court disagreed, stating that were it to accept the plaintiffs’ argument, § 16-4703 would envelop the general statutory prohibition against compelled disclosure in virtually every libel case.  Id.  The court reiterated its refusal to “carve out an exception for most, if not all, libel cases where the legislature could have created an exception for libel defendants and refused to do so.”  Id.

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4. Subpoena not overbroad or unduly burdensome

Because the granting or denial of a motion to quash a subpoena is a matter within the court’s discretion, and because the court ordinarily will consider the hardship faced by the witness in responding to a subpoena, the court also may determine whether a subpoena is overly broad or unduly burdensome.  In re Herndon, 596 A.2d 592, 596 (D.C. 1991).

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5. Threat to human life

The D.C. shield law is silent as to whether the court must weigh if the subject of a subpoena involves a threat to human life.  Because the shield law absolutely protects sources, a court most likely cannot consider whether the identity of the source involves a threat to human life.  However, because the balancing test for disclosure of unpublished news or other related information includes an element concerning an “overriding public interest,” D.C. Code § 16-4703(a)(3), a threat to human life would likely be considered within that prong of the test.

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6. Material is not cumulative

If the material sought would be cumulative, the equities taken into consideration during the judicial balancing should weigh in favor of non-disclosure.  See, e.g., Zerilli v. Smith, 656 F.2d 705 (D.C. Cir. 1981).

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7. Civil/criminal rules of procedure

The rules of procedure (both criminal and civil) allow the party receiving a subpoena to file a motion to quash.  SCR-Civ. 45(c)(3); SCR-Crim. 17(c)(2).

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8. Other elements

The elements set forth in the shield law are the only ones a person seeking disclosure can show to overcome the qualified privilege for unpublished information.  D.C. Code §§ 16-4702, 4703.

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C. Waiver or limits to testimony

Some states have determined, either through statutory or decisional law, that a journalist in certain circumstances is deemed to have waived the privilege.  However, the D.C. shield law expressly limits the scope of such a waiver.

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1. Is the privilege waivable?

The D.C. courts have not addressed or construed the scope of D.C. Code § 16-4704, the statute’s waiver provision.  Under the plain terms of the statute, however, the absolute privilege as to media sources is not waivable, and the publication by the news media or the dissemination by a person employed by the news media of a portion of the news or information protected by the D.C. shield law does not constitute a waiver of the privilege.

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2. Elements of waiver

a. Disclosure of confidential source's name

Under the plain terms of the statute, the disclosure of a source’s name, whether confidential or not, does not waive the privilege.  Grunseth v. Marriott Corp., 868 F. Supp. 333, 336 (D.D.C. 1994).

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b. Disclosure of non-confidential source's name

Under the plain terms of the statute, the disclosure of a source’s name, whether confidential or not, does not waive the privilege.  Grunseth v. Marriott Corp., 868 F. Supp. 333, 336 (D.D.C. 1994).

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c. Partial disclosure of information

Under D.C. Code § 16-4704, “[t]he publication by the news media or the dissemination by a person employed by the news media of a source of news or information, or a portion of the news or information, procured while pursuing professional activities shall not constitute a waiver of the protection from compelled disclosure that is contained in section 16-4702.”

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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?

The plain language of the statute suggests that an agreement to partially testify should not constitute a waiver.  See D.C. Code § 16-4704.

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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

Because the District’s courts often follow the Federal Rules of Evidence, newspapers most likely are considered self-authenticating.  See, e.g., Fed. R. Evid. 902(6).  However, the statements within newspaper articles may not be admissible as evidence.  See 31 Wright et al., 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”).

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B. Broadcast materials

No statutory or case law addressing this issue exists.  However, case law suggests that the person who recorded the broadcast tape need not be called to authenticate it.  Rather, a witness who is familiar with the object or scene depicted in the video may lay the predicate foundation.  See, e.g., Washington Post v. D.C. Dep’t of Employment Servs., 675 A.2d 37, 43 (D.C. 1996).

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C. Testimony vs. affidavits

No statutory or case law addressing this issue exists.

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D. Non-compliance remedies

1. Civil contempt

a. Fines

No statutory or case law addressing the appropriate fine for a reporter refusing to obey a subpoena exists.  However, under SCR-Civ. 37(a)(5), if a person has refused to testify without substantial justification, a court may award the party who successfully moved to compel both its attorney’s fees and its costs in bringing that motion.

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b. Jail

Under D.C. Code § 11-944(a), the Superior Court “may punish for disobedience of an order or for contempt committed in the presence of the court.”  See, e.g., In re Wheeler, 18 Med. L. Rptr. 2061 (D.C. Super. Ct. 1991) (reporter held in civil contempt and ordered imprisoned until she agreed to answer questions propounded by plaintiff’s counsel), aff’d in part sub nom. Wheeler v. Goulart, 593 A.2d 173 (D.C. 1991).  An individual imprisoned for 6 consecutive months for civil contempt for disobedience of an order, who continues to disobey the order, may be prosecuted for criminal contempt at any time within 12 months of the first day of incarceration.  Id. § 11-944(b)(3).  Any individual who was charged with civil contempt and then is charged with criminal contempt may continue to be imprisoned for civil contempt until the completion of such individual’s trial for criminal contempt, except that in no case may such an individual be imprisoned for more than 18 consecutive months for civil contempt pursuant to the contempt power.  Id.  D.C. Code § 11-741 provides the same contempt powers for the D.C. Court of Appeals.

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2. Criminal contempt

The statutes addressing the courts’ contempt powers also provide for criminal contempt.  D.C. Code §§ 11-741, 11-944.  Specifically, the statutes provide that “[a]n individual imprisoned for 6 consecutive months for civil contempt for disobedience of an order . . . who continues to disobey such order may be prosecuted for criminal contempt for disobedience of such order at any time before the expiration of the 12-month period that begins on the first day of such individual’s imprisonment. . . .”  D.C. Code §§ 11-741(b)(3)(A), 944(b)(3)(A).  The statutes further provide that the trial of any individual prosecuted for criminal contempt “(1) shall begin not later than 90 days after the date on which such individual is charged with criminal contempt; (2) shall, upon the request of the individual, be a trial by jury; and (3) may not be conducted before the judge who imprisoned the individual for disobedience of an order pursuant to subsection (a)” of the statute.  See D.C. Code §§ 11-741(b)(3)(B), 944(b)(3)(B).

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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

Generally, denial of motion to quash or a motion to compel (when non-parties are not involved) is not a final and appealable order.  In re Johnson, 699 A.2d 362, 367 n.14 (D.C. 1997) (denial of motion to quash subpoena for a psychiatric examination is not final order).  Additionally, an order on a subpoena or other discovery directed to a non-party witness is not final, and therefore is not appealable, until the witness has failed to comply and has been sanctioned by the trial court.  Crane v. Crane, 614 A.2d 935, 940 (D.C. 1992); United States v. Harrod, 428 A.2d 30, 31 (D.C. 1981) (en banc).  Notably, in Prentice v. McPhilemy, 27 Med. L. Rptr. 2377, 2388 (D.C. Super. Ct. 1999), the court denied the plaintiffs’ motion for reconsideration, which sought, inter alia, an amendment to its previous order to allow plaintiffs to take an immediate appeal pursuant to D.C. Code § 11-721(d) and D.C. Ct. App. R. 5.  The court concluded that, given the plain terms of the District’s shield law, the case did not involve “a controlling question of law as to which there is substantial ground for difference of opinion.”

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2. Expedited appeals

Case law suggests that an expedited appeal may be available.  Wheeler v. Goulart, 593 A.2d 173, motion to vacate denied, 623 A.2d 1177 (D.C. 1993) (granting expedited appeal of a lower court’s order during the course of civil trial in progress that denied a motion to quash and held news reporter in civil contempt for refusing to answer certain questions put to her by litigants).  In an expedited appeal, counsel for appellant must notify the clerk of the Court of Appeals and opposing counsel of the forthcoming appeal, and must promptly arrange for transmission of the record on appeal.  D.C. Ct. App. R. 4(c).

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B. Procedure

1. To whom is the appeal made?

The D.C. Court of Appeals has jurisdiction over “all final orders and judgments of the Superior Court,” as well as certain categories of interlocutory Superior Court orders and decisions of D.C. administrative agencies issued in “contested cases.”  D.C. Code §§ 2-510, 11-721, 11-722.

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2. Stays pending appeal

Ordinarily, a stay must first be sought from the court or agency whose decision is being reviewed on appeal.  D.C. Ct. App. R. 8, 18; see also Wheeler v. Goulart, 593 A.2d 173 (“stay pending appeal of a trial court judgment or order may be granted either by the trial court or by the Court of Appeals under D.C. App. R. 8”); Horton v. United States, 591 A.2d 1280 (D.C. 1991) (both trial and appellate courts are authorized to issue stays of orders and judgments).  Note that the court refused to stay a reporter’s commitment following an adjudication of contempt in In re Wheeler, 18 Med. L. Rptr. 2061, 2063 (D.C. Super. Ct. 1991).

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3. Nature of appeal

The right to appeal and the procedures governing the appeal depend on whether the person seeking to quash the subpoena is a party or non-party and whether the court has granted or denied the motion to quash.  A party generally must wait until the final deposition of the case to appeal the presiding court’s order regarding its motion to quash.  In re Johnson, 699 A.2d 362, 367 n.14 (D.C. 1997).  However, an order by a court denying a motion to quash may be appealed after a finding of contempt against the still-noncompliant movant.  Crane v. Crane, 614 A.2d 935, 940 (D.C. 1992); United States v. Harrod, 428 A.2d 30, 31 (D.C. 1981) (en banc).

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4. Standard of review

A trial court has broad discretion in determining whether to grant or deny a motion to compel discovery, and its decision will not be disturbed on appeal unless there has been an abuse of discretion resulting in prejudice.  Haynes v. District of Columbia, 503 A.2d 1219, 1224 (D.C. 1986); White v. WMATA, 432 A.2d 726, 728-729 (D.C. 1981).

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5. Addressing mootness questions

In a pre-shield law case, Wheeler v. Goulart, 593 A.2d 173 (D.C. 1991), motion to vacate denied, 623 A.2d 1177 (D.C. 1993), the Superior Court denied a motion to quash and held a reporter in civil contempt.  On an expedited appeal, the D.C. Court of Appeals affirmed on the ground that the reporter waived her qualified constitutional privilege by disclosing the identity of the source to two individuals not involved in the newsgathering process.  The parties to the underlying litigation settled during the period in which the reporter could have petitioned for certiorari to the U.S. Supreme Court.  Although the reporter’s need to testify at trial was obviated, she renewed her motion to vacate the prior opinion of the Court of Appeals.  Despite the settlement and the interim passage of the District’s shield law, the Court denied the motion to vacate, concluding that “under the circumstances . . . , the case had reached practical finality and should not be disturbed.”  623 A.2d at 1179.  The Court emphasized that the reporter never moved to stay the issuance of its mandate pending application to the Supreme Court.  Id. at 1178 (citing D.C. Ct. App. R. 41(b)).

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6. Relief

In a pre-shield law case, Wheeler v. Goulart, 593 A.2d 173 (D.C. 1991), motion to vacate denied, 623 A.2d 1177 (D.C. 1993), a reporter held in contempt for refusing to answer certain questions unsuccessfully requested that the Court of Appeals reverse the Superior Court’s order compelling her to provide the information and holding her in contempt.

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IX. Other issues

A. Newsroom searches

D.C. courts have not applied or interpreted 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).

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B. Separation orders

No statutory or case law addressing this issue exists.

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C. Third-party subpoenas

No statutory or case law addressing this issue exists.

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D. The source's rights and interests

No statutory or case law addressing this issue exists.

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