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1st Circuit

Reporters Privilege Compendium

Elizabeth A. Ritvo, Esq.
eritvo@brownrudnick.com
Brown Rudnick LLP
One Financial Center
Boston, Massachusetts 02111
(617) 856-8200

The author acknowledges the contributions of Samantha L. Gerlovin, co-author of an earlier edition of this chapter.

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I. Introduction: History & Background

The First Circuit, which is comprised of Massachusetts, Maine, New Hampshire, Puerto Rico, and Rhode Island, recognizes a qualified privilege for reporters. Application of the privilege is determined on a case-by-case basis, with the courts balancing the potential harm to the free flow of information and First Amendment interests against the requesting party’s asserted need for the requested information.

Within the First Circuit, Rhode Island and Maine have statutes protecting reporters from being compelled to disclose confidential sources.  The Rhode Island shield law, the “Newsman’s Privilege Act,” provides a qualified privilege for reporters that applies only to confidential sources and information.  R.I. Gen. Laws § 9-19.1-1, et seq.  The Maine statute, “shielding journalist’s confidential sources,” similarly provides a qualified privilege for journalists to protect against compelled disclosure of confidential sources or information.  Me. Rev. Stat. Ann. tit. 16, § 61.

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II. Authority for and source of the right

The qualified reporter’s privilege has primarily developed in the First Circuit post-BranzbergSee Branzburg v. Hayes, 408 U.S. 665 (1972).  The privilege is grounded in First Amendment concerns rather than federal common law.

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A. Shield law statute

B. State constitutional provision

C. Federal constitutional provision

The privilege is grounded in First Amendment concerns rather than federal common law.

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D. Other sources

III. Scope of protection

A. Generally

In determining whether to apply a qualified reporter’s privilege to the facts and circumstances of a particular case, the courts balance the First Amendment interests against the asserted needs of the requesting party.  The courts recognize the impact that disclosure of confidential information and sources will have on the media’s First Amendment interests and its newsgathering ability and on the free flow of information.  However, the First Circuit courts do not always protect such sources or information from disclosure.  As to non-confidential information and sources, the courts have viewed the First Amendment interests as present but more elusive.  The First Circuit has noted, “a lurking and subtle threat to journalists and their employers if disclosure of outtakes, notes, and other unused information, even if nonconfidential, becomes routine and casually, if not cavalierly compelled.” Cusumano v. Microsoft Corp., 162 F.3d 708, 715 (1st Cir. 1998).   See also In re Request from United Kingdom, 718 F.3d. 13, 24-25 (1st Cir. 2013); In re Doulours Price, 685 F.3d 1, 21 (1st Cir. 2012).

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B. Absolute or qualified privilege

The reporter’s privilege is qualified in all circumstances.

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C. Type of case

1. Civil

When determining whether a reporter’s privilege is available, the courts in civil cases employ a balancing test weighing the effects of disclosure on First Amendment interests and the free flow of information against the interest of the party seeking disclosure of the reporter’s information or source.  In balancing the interests asserted, courts have looked to whether the information sought is available from other sources.  Where there has been no expectation of confidentiality as to the information or source, the courts have found the First Amendment interests to be less weighty.  The party seeking disclosure from the reporter must establish the relevance of the information sought and make a prima facie case showing that the claim is not frivolous and that the party is not merely on a “fishing expedition.” The burden then shifts to the reporter to establish the need to preserve the privilege.  See generally In re Special Proceedings, 373 F.3d 37 (1st Cir. 2004); Cusumano v. Microsoft Corp., 162 F.3d 708 (1st Cir. 1998); Bruno & Stillman v. Globe Newspaper Co., 633 F.2d 583 (1st Cir. 1980).  See also Alharbi v. TheBlaze, Inc., 199 F. Supp. 3d 334, 348 (D. Mass. 2016).

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2. Criminal

The courts in criminal cases employ a fact-sensitive balancing test in evaluating a reporter’s privilege, weighing the effects of disclosure on the reporter’s First Amendment interests against the fair administration of justice, including the criminal defendant’s Fifth and Sixth Amendment rights, and the obligation of all citizens to give relevant testimony with respect to criminal conduct.  See In re Request from United Kingdom, 718 F.3d 13, 25 (1st Cir. 2013).  Where there is no legitimate expectation of confidentiality as to the information or source, the courts are not inclined to recognize that disclosure can have a chilling effect on First Amendment interests.

Under Federal Rule of Criminal Procedure 17(c), the party moving to obtain the information must demonstrate the need for the evidence, as well as its admissibility.  Specifically, the moving party must show that the information sought is: (1) both evidentiary and relevant; (2) not otherwise obtainable reasonably in advance of trial by other means (the moving party must exercise “due diligence” in trying to obtain the information by other means); (3) necessary for the proper preparation for trial, such that failure to obtain the information might unreasonably delay the trial; and (4) required in good faith and not requested as a “general fishing expedition.” United States v. LaRouche Campaign, 841 F.2d 1176, 1179 (1st Cir. 1988) (quoting United States v. Nixon, 418 U.S. 683, 699-700 (1974)).  These requirements have been reduced to the following three hurdles: (1) relevancy, (2) admissibility, and (3) specificity.  Id. (quoting Nixon, 418 U.S. at 700).

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3. Grand jury

In Branzberg v. Hayes, the Supreme Court held that “newsmen are not exempt from the normal duty of appearing before a grand jury and answering questions relevant to a criminal investigation.” 408 U.S. 665, 685 (1972).  The Court reasoned that the necessity of providing grand juries with all available information to facilitate the proper administration of justice outweighs the First Amendment interest asserted by reporters.  Id. at 686-87.

Prior to Branzberg, the First Circuit courts had decided two cases in which grand juries sought confidential information from “reporters” in the course of investigating crimes.  In both cases, the courts compelled the disclosure of the information.

In United States v. Doe (In re Falk), a professor was subpoenaed to testify before a grand jury that was investigating crimes related to the release and dissemination of the Pentagon Papers.  332 F. Supp. 938 (D. Mass. 1971).  The professor was a writer who claimed that he relied on individuals’ trust in order to obtain confidential information from them.  The court held that the reporter’s privilege extended to academics in their writing; however, it required the professor to disclose his sources of information because he did not have a highly confidential relationship with his contacts and because the request was limited, reasonable, and intended to aid the grand jury in a very specific investigation.

In United States v. Doe (Appeal of Popkin), the appellant was a professor who had written numerous articles on the Vietnam war.  460 F.2d 328 (1st Cir. 1972).  He was subpoenaed by a grand jury to provide information that he had obtained in his scholarly capacity regarding the Pentagon Papers.  The First Circuit affirmed the district court’s decision to hold him in civil contempt for failing to answer certain questions regarding his sources.  The court found the professor was not protected by the reporter’s privilege because he had obtained this information during conversations with other professors and not in his capacity as an information gatherer and reporter.

In Cusumano v. Microsoft Corp., the First Circuit refused to compel an academic to reveal the sources for his publications, despite the fact that the information was relevant and important to an antitrust case, since the information could be available through other sources.  162 F.3d 708, 716 (1st Cir. 1998).  Although Cusumano did not involve a grand jury proceeding, this request took place during pre-trial discovery in the Department of Justice’s antitrust case against Microsoft.

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D. Information and/or identity of source

The First Circuit courts may require that those seeking the identity of a reporter’s source exhaust all other avenues before requiring the reporter to reveal the source.  See, e.g., Gray v. St. Martin’s Press, 221 F.3d 243, 254 (1st Cir. 2000) (applying New Hampshire’s qualified reporter’s privilege requiring applicants to demonstrate that they have made all reasonable efforts to obtain the identity of the source by other reasonable means); Cusumano v. Microsoft Corp., 162 F.3d 708, 716 (1st Cir. 1998) (refusing to compel an academic to reveal the sources for his publications, despite the fact that the information was relevant and important to an antitrust case, since the information could be available through discovery of other resources); In re Bextra and Celebrex Mktg. Sales Practices and Prod. Liab. Litig., 249 F.R.D. 8, 14-15 (D. Mass. 2008) (refusing to compel medical journal to identify peer reviewers of articles submitted for publication or to produce comments of peer reviewers); Summit Tech., Inc. v. Healthcare Capital Group, Inc., 141 F.R.D. 381, 385 (D. Mass. 1992) (holding that an investment analyst was not required to reveal the identity of his source of information until the requesting party attempted to obtain this information from other parties).  But see Alharbi v. TheBlaze, Inc., 199 F. Supp. 3d 334, 348 (D. Mass. 2016), (“However, the Supreme Court has ‘twice rejected any automatic requirement that non-confidential sources be exhausted.’  In re Special Proceedings, 373 F.3d at 45 (citing Univ. of Pa. v. E.E.O.C., 493 U.S. 182 (1990); Branzburg v. Hayes, 408 U.S. 665, 701-702, 92 S. Ct. 2646, 33 L.3d 26626 (1972)”).

The reporter’s privilege in the First Circuit extends to any discoverable information that could reveal the identity of the reporter’s source.  See, e.g., Bruno & Stillman v. Globe Newspaper Co., 633 F. 2d 583, 593-94 (1st Cir. 1980) (protecting reporter’s notes which contained the identity of certain confidential sources); Cusumano v. Microsoft Corp., 162 F.3d 708 (1st Cir. 1998) (protecting notes, tape recordings, and transcripts of interviews that would reveal sources’ identities).

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E. Confidential and/or nonconfidential information

The First Circuit courts will give more protection to information obtained from confidential sources than information obtained from sources who were not promised confidentiality.  The cases involving reporters protecting the dissemination of information obtained without a promise of confidentiality often arise in the context of “outtakes,” or portions of interviews (often videotaped) that are never aired by the media.  In these cases, the interviewee’s identity is known, and he usually expects that the information contained in the outtakes could be publicly aired.

The First Circuit noted in United States v. LaRouche Campaign that where “there is no confidential source or information at stake, the identification of First Amendment interests is a more elusive task.” 841 F.2d 1176, 1181 (1st Cir. 1988).  However, it also stated, “We discern a lurking and subtle threat to journalists and their employers if disclosure of outtakes, notes, and other unused information, even if non-confidential, becomes routine and casually, if not cavalierly, compelled.”  Id. at 1182.  The court held that in these cases, before granting access to the media’s non-confidential information, courts should consider the importance of maintaining journalists’ editorial discretion, the huge burden on the media of frequent subpoenas, and the fear that reporters could be forced to become “an investigative arm of the judicial system.” Id.  The First Circuit in LaRouche ordered an in camera review of the requested information; however, the court stated: “we . . . rely on sensitive district court conduct of in camera reviews to respond to the generalized First Amendment concerns that would be triggered by too easy and routine a resort to compelled disclosure of nonconfidential material.”  Id. at 1183.

In Lynch v. Riddell, a local television station interviewed a football player who was paralyzed while playing. No. 91-CV-6680, 1992 U.S. Dist. LEXIS 15725, 35 Fed. R. Serv. 2d 185 (D. Mass. 1982).  After the player sued the manufacturer of his football helmet, the manufacturer subpoenaed the television station for the outtakes of its interview with the player.  The federal magistrate held that the First Amendment was not implicated in this case, because neither the player nor the reporter ever intended for the player’s identity or the interview itself to be confidential.  The court found that, “There is no basis [in] . . . Federal constitutional law . . . for the proposition that a reporter has a privilege to withhold relevant evidence in a civil case where that evidence will neither disclose a confidential source nor disclose material given by a known source in confidence.” Id. at *8.

In Russo v. Geagan, spectators of a rally sought a news station’s videotape of an entire rally, even though the station had only aired portions of this tape. No. 82-3823, 1983 U.S. Dist. LEXIS 18658, at *3, 35 Fed. R. Serv. 2d 1403 (D. Mass. 1983).  The federal magistrate in Russo recognized that while the information sought was not confidential, production of a reporter’s non-published materials can constitute “a significant intrusion into the newsgathering and editorial processes.” Id.  The court found that the request was not made “for the sake of exposure” or to harass a reporter or chill a particular point of view.  Id. at *5.  Since the information was clearly relevant to the requestor’s lawsuit, and the information had not been obtained on the basis of a pledge of confidentiality, the court ordered the media to release the entire videotape.  Id. at *10.

In McFadyen v. Duke Univ., No. 2:12-mc-196-JHR, 2012 WL 4895979 (D. Me. Oct. 12, 2012), a federal magistrate granted Duke University’s motion to compel a non-party author, who had written on the Duke lacrosse scandals, to disclose his communications with the plaintiff lacrosse players, finding he did not “see how compelling [the author] to reveal what the plaintiffs told him will chill his efforts to obtain information about the Duke lacrosse scandal from other individuals.  People who bring suit must expect that their prior statements that are relevant to their claims cannot be hidden from those whom they are suing.” Id. at *4. Duke withdrew its subpoenas before the magistrate’s decision was reviewed by the district court judge.

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F. Published and/or non-published material

Where the information sought is the identity of a confidential source, the court does not distinguish between published and non-published materials in determining the availability of a qualified reporter’s privilege to protect the source’s identity.

However, where the information sought is non-published, non-confidential materials, the courts do not protect such information as broadly.  In United States v. LaRouche Campaign, the First Circuit noted that when “there is no confidential source or information at stake, the identification of First Amendment interests is a more elusive task.” 841 F.2d 1176, 1181 (1st Cir. 1988).  When outtakes and other non-published materials are requested, courts consider the intrusion on journalists’ editorial discretion, as well as the burden on the media of responding to numerous subpoenas.  Id.  Further, courts are wary of the media becoming “an investigative arm of the government.” Id.  Courts balance these concerns against the rights and interests of the persons requesting the information.  Id.  Whenever possible, courts will conduct in camera reviews of materials before releasing them to the requesting party.  Id.

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G. Reporter's personal observations

There is no statutory or case law in the First Circuit specifically addressing this issue.

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H. Media as a party

The privilege is available whether the reporter is a party or a non-party.

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I. Defamation actions

The privilege is available in defamation as well as in non-defamation cases.  Where a court determines that the identity of the source will not further the plaintiff’s case, it will not be compelled.  Howard v. Antilla, 191 F.R.D. 39 (D.N.H. 1999).  In Howard, the court held that the identity of sources of false rumors that Antilla reported in a newspaper article were not essential to the libel suit brought by the subject of those rumors because the identities of the sources shed no light on the question of Antilla’s defamatory intent.  Id.  In Alharbi v. TheBlaze, Inc., 199 F. Supp. 3d 334 (D. Mass. 2016), Alharbi sued radio and television commentator Glen Beck and the owner and distributor of his shows for defamation on grounds they falsely claimed Alharbi was involved in recruiting the Tsarnaev brothers, that he gave the “go-order” for the Boston Marathon bombings and that he was the money man behind the attack.  Id. at 340.  Alharbi moved to compel the defendants to identify the confidential government sources they relied upon in developing the broadcasts.  Id. While recognizing the First Circuit’s heightened sensitivity to First Amendment concerns and its balancing of interests, the court ordered the defendants to disclose the identities of two of their six confidential sources.  Id. at 349-50.  As to these two confidential sources, the court found Alharbi had demonstrated his claim of need and relevancy was not frivolous and that he could not obtain information to verify the truth of what the confidential source told the defendants from a less sensitive source.  Id. at 350.

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IV. Who is covered

Following a fact-sensitive analysis, First Circuit courts have in certain circumstances extended the reporter’s privilege to cover parties other than those engaged in traditional journalism and reporting, such as professors and research analysts.

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A. Statutory and case law definitions

1. Traditional news gatherers

a. Reporter

No reported First Circuit cases have specifically defined the term “reporter” for purposes of the reporter’s privilege, nor has any First Circuit case distinguished between full-time and part-time “reporters” for purposes of the privilege.

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b. Editor

No reported First Circuit cases addressing the reporter’s privilege have specifically defined the term “editor.”

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c. News

The First Circuit’s definition of “news” has generally revolved more around the purpose of the report, rather than the form in which it is published.  Courts have looked at factors such as whether the report disseminates investigative information and whether it relates to matters of public concern.  See, e.g., Cusumano v. Microsoft Corp., 162 F.3d 708, 713 (1st Cir. 1998); Summit Tech., Inc. v. Healthcare Capital Group, Inc., 141 F.R.D. 381, 384 (D. Mass. 1992).

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d. Photo journalist

No reported First Circuit cases addressing the reporter’s privilege have specifically defined the term “photo journalist.”

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e. News organization/medium

Courts have applied the reporter’s privilege to information published in a variety of media.  Rather than focusing on the forum in which the information appears, the courts instead consider the information gatherer’s purpose for obtaining the information.  In United States v. Doe (In the matter of Falk), the court states, “In no way do [an academic writer’s] facts become any less a part of the ‘spectrum of available knowledge’ for appearing in books and articles rather than in a newspaper.  Such media are vehicles of information and opinion of a type long recognized by the Supreme Court as being within its definition of the press.” 332 F. Supp. 938, 941 (D. Mass 1971) (internal quotations omitted) (quoting Lovell v. Griffin, 303 U.S. 444, 452 (1938)).  In determining whether the reporter’s privilege is applicable to a particular writing, the courts consider whether the person gathering the information was “engaged in the dissemination of investigative information,” and whether the information “relates to matters of public concern.” Summit Tech., Inc. v. Healthcare Capital Group, Inc., 141 F.R.D. 381, 384 (D. Mass. 1992); see also Cusumano v. Microsoft Corp., 162 F.3d 708, 714 (1st Cir. 1998).

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2. Others, including non-traditional news gatherers

The reporter’s privilege has been extended to include research analysts and academics.  See, e.g., Cusumano v. Microsoft Corp., 162 F.3d 708 (1st Cir. 1998) (extending the privilege to the pre-publication manuscripts of a distinguished academic); In re Bextra and Celebrex Mktg. Sales Practices and Prod. Liab. Litig., 249 F.R.D. 8, 13 (D. Mass. 2008) (applying reporter’s privilege and refusing to compel medical journal to identify peer reviewers of articles submitted for publication or to produce comments of peer reviewers); Summit Tech., Inc. v. Healthcare Capital Group, Inc., 141 F.R.D. 381 (D. Mass. 1992) (holding that the reporter’s privilege applied to the report of an independent researcher and analyst hired by an institutional investor); United States v. Doe (In re Falk), 332 F. Supp. 938 (D. Mass 1971) (finding that professors who publish books and articles are protected by the reporter’s privilege).

In Cusumano v. Microsoft Corp., the court held that an academic’s manuscript of a forthcoming book was protected by the reporter’s privilege.  162 F.3d 708, 713 (1st Cir. 1998).  The court held that “[a]cademicians engaged in pre-publication research should be accorded protection commensurate to that which the law provides for journalists,” reasoning that academics are “sufficiently like journalists” for the privilege to apply.  Id. at 714.  The court stated that scholars are “information gatherers and disseminators,” who require their sources to confide in them, often under agreements of confidentiality.  Id.  The court noted that forcing academics to release transcripts prior to publication would endanger “the values of academic freedom safeguarded by the First Amendment and jeopardize the future information-gathering activities of academic researchers.” Id. at 713.  The court further held that “the medium an individual uses to provide his investigative reporting to the public does not make a dispositive difference in the degree of protection accorded to his work.  Whether the creator of the materials is a member of the media or of the academy, the courts will make a measure of protection available to him as long as he intended ‘at the inception of the newsgathering process’ to use the fruits of his research ‘to disseminate information to the public.’” Id. at 714 (emphasis added).

The First Circuit’s decision in Cusumano is consistent with many of the First Circuit courts’ earlier decisions addressing to whom the reporter’s privilege should apply.  See, e.g., Summit Tech., Inc. v. Healthcare Capital Group, Inc., 141 F.R.D. 381, 384 (D. Mass. 1992) (finding that the reports of an investment analyst whose business was to perform independent research and analysis of publicly traded companies for institutional investors were entitled to protection under the reporter’s privilege, since they involved the dissemination of investigative information to the public); United States v. Doe (In re Falk), 332 F. Supp. 938, 941 (D. Mass 1971) (holding that a professor engaged in writing articles for newspapers and magazines is afforded the protection of the reporter’s privilege, since the privilege does not differentiate between information appearing in books and newspapers); cf. United States v. Doe (In re Popkin), 460 F.2d 328, 334 (1st Cir. 1972) (holding that to the extent that a “scholar qua scholar” is asked about statements made to him by other scholars, he does not obtain the protection of the reporter’s privilege, since extending the privilege to scholars in this capacity “would give comprehensive protection to such collateral discussions [as to] make scholars a uniquely privileged class in the broadest sense.”).

In In re Doulours Price, 685 F.3d 1 (1st Cir. 2012), the First Circuit upheld the denial of motions to quash subpoenas brought by two Boston College academic researchers who had conducted confidential interviews with participants in the Northern Ireland independence movement, including with members of the Irish Republican Army (the “Belfast Project”).  Id. at 6.  The British government sought such research materials pursuant to treaty and in connection with its own criminal investigation into the abduction and murder of an individual thought to be an informant for the British government.  Id. at 17.  Relying on Branzburg v. Hayes, 408 U.S. 665 (1972), the court found that the strong law enforcement interests precluded the creation of a general purpose reporter’s or academic research privilege for confidential sources.  In his concurrence, Judge Torreuella rejected the view that the First Amendment does not provide some degree of protection to “the fruits of the [researchers’] investigative labors.”  685 F.3d 20.  He concluded, “In my view, the [researchers] cannot carry the day, not because they lack a cognizable interest under the First Amendment, but because any such interest has been weighed and measured by the Supreme Court and found insufficient to overcome the government’s paramount concerns in the present context.”  Id. at 21.

In In re Request from the United Kingdom, 718 F.3d 13 (1st Cir. 2013), the First Circuit again addressed whether to enforce subpoenas issued by the British government to the trustees of Boston College for certain confidential materials and research which were part of the Belfast Project.  Writing for the majority this time, Judge Torruella stated plainly, “A balancing of First Amendment concerns vis-a-vis the concerns asserted in favor of the compelled disclosure of academic and journalistic information is the law in this circuit for all First Amendment cases . . . . Furthermore, Branzburg has not hindered our duty to perform balancing tests in First Amendment cases . . . .” 718 F.3d at 25 (citing inter alia to Cusumano v. Microsoft Corp, 162 F.3d 708 (1st Cir. 1998), Bruno & Stilllman v. Globe Newspaper Co., 633 F.2d 583 (1st 1980) and In re Doulours Price, 688 F.3d 1 (1st Cir. 2012)).

However, in In re Steinberg, the First Circuit held that notebooks with entries that documented activity in connection with fundraising activities for a presidential campaign were not “journalistic endeavors.” 837 F.2d 527, 528, n.2 (1st Cir. 1988). The court held that the notebooks were not protected by the reporter’s privilege and required the campaign worker who kept these notebooks to turn them over to the police department, which was investigating fraud and conspiracy in connection with the campaign. Id.

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B. Whose privilege is it?

No reported First Circuit decision has specifically addressed the issue of whether the reporter or the source is the holder of the reporter’s privilege, and who must assert the privilege. Most of the First Circuit cases involve a reporter asserting the privilege, where the reporter has assured the source of confidentiality. Usually, the reporter is subpoenaed to present the information in a deposition, at trial, or in a grand jury hearing, and the reporter is the party asserting the privilege.

In defamation actions where the publisher is a defendant, the publisher has asserted the privilege. See, e.g., Bruno & Stillman v. Globe Newspaper Co., 633 F.2d 583, 593-94 (1st Cir. 1980) (allowing The Boston Globe to assert the reporter’s privilege).  Alharbi v. TheBlaze, Inc., 199 F.3d 334, 340 (D. Mass. 2016) (radio and television commentator and owner and distributer of broadcast asserted the privilege.)  In cases where a party seeks disclosure of non-confidential, unpublished “outtakes,” the media defendant is also likely to be the party asserting the privilege. See, e.g., United States v. Shay (“Shay I”), No. 92-10369, 1993 U.S. Dist. LEXIS 4438, 21 Med. L. Rep. 1415 (D. Mass. 1993) and United States v. Shay (“Shay II”), 1993 WL 263493 (D. Mass. June 30, 1993) (allowing WLVI-TV, Channel 56, to assert the reporter’s privilege); see also Holton v. Rothschild, 108 F.R.D. 720, 722 (D. Mass. 1985) (finding that the authors, publishers, and the writings themselves are all protected under the reporter’s privilege).

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V. Procedures for issuing and contesting subpoenas

A. What subpoena server must do

1. Service of subpoena, time

In the First Circuit, there are no special processes governing the service of a subpoena on a member of the news media. Fed. R. Civ. P. 45(b) generally governs the service of subpoenas in civil cases and Fed. R. Crim. P. 17(d) governs service of subpoenas in criminal cases.

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2. Deposit of security

The First Circuit does not have any specific rules requiring that the subpoenaing party deposit any security in order to procure a reporter’s testimony or materials.

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3. Filing of affidavit

The First Circuit does not have any rules requiring the subpoenaing party to make a sworn statement in order to procure a reporter’s testimony or materials.

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4. Judicial approval

The First Circuit does not have any rules requiring a judge or magistrate to approve a subpoena before a party can serve it on a reporter.

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5. Service of police or other administrative subpoenas

The First Circuit does not have any special rules regarding the use and service of other administrative subpoenas.

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B. How to Quash

In seeking to nullify a subpoena, the reporter must file a motion to quash or modify. Fed. R. Civ. P. 45(d) outlines the protections available to individuals who receive subpoenas in civil matters. The Rule provides that, “A party or attorney responsible for issuing and serving a subpoena must take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena.” Fed. R. Civ. P. 45(d)(1). The Rules do not specifically define the term “undue burden” and leave the interpretation of this term to the court’s discretion; ultimately, the question of burden is a balance between the interests of the party seeking information and the party being subpoenaed. See Heidelberg Ams., Inc. v. Tokyo Kikai Seisakusho, Ltd., 333 F.3d 38, 40 (1st Cir. 2003). A Massachusetts district court held that a “broad, sweeping order” for the production of “any and all” books of a corporation would be overly broad and unduly burdensome. United Shoe Mach. Corp., 6 F.R.D. 347 (D. Mass. 1947). In Cusumano v. Microsoft Corp., 162 F.3d 708, 717 (1st Cir. 1998), the court recognized that, “the unwanted burden thrust upon nonparties is a factor entitled to special weight in evaluating the balance of competing needs.”

As to requests for the production of documents, Rule 45(d)(2)(B) states that an individual subject to a subpoena has fourteen days after service (or until the time specified for compliance, if such time is less than fourteen days after service of the subpoena) to serve a written objection on the opposing party. If the subpoenaed party serves a written objection, the party serving the subpoena will not have access to the information requested except by an order from the court where the subpoena was issued. If a written objection is made, the serving party may respond by moving for an order to compel the production of the information, upon notice to the subpoenaed individual.

Rule 45(d)(3) sets forth guidelines related to the court’s modifying or quashing a subpoena. The court must quash or modify a subpoena if it: (1) fails to allow reasonable time for compliance; (2) requires another individual to travel more than one hundred miles from his or her residence or place of employment; (3) requires the disclosure of privileged or other protected matter; or (4) subjects the individual to an undue burden. If a subpoena requires a person who is not a party to incur substantial expense to travel more than 100 miles to attend trial, the court may protect the person subject to the subpoena by quashing or modifying the subpoena. However, if the subpoenaing party can show a substantial need for the information and can demonstrate that it cannot otherwise obtain this information without undue hardship, and the subpoenaing party agrees to reasonably compensate the subpoenaed party for his time and travel expenses, then the court may order appearance or production.

Like other motions, motions to quash are subject to Fed. R. Civ. P. 7, which sets forth the form of motions.  Under Rule 7, an application to the court for an order shall be by motion which, unless made during a hearing or trial, must be in writing, and must state with particularity the grounds for the motion, as well as the relief or order sought. Pursuant to Fed. R. Civ. P. 45(e)(2), when a party withholds information subject to a subpoena on the grounds that it is privileged, this claim must be made expressly, and must be supported by a description of the nature of the documents or information not produced, sufficient to enable the subpoenaing party to contest the claim.

In criminal cases, Fed. R. Crim. P. 17 governs subpoenas and provides, as to the production of documentary evidence, that the court “on motion made promptly may quash or modify the subpoena if compliance would be unreasonable or oppressive.” Fed. R. Crim. P. 17(c)(2).

Although Rule 17 does not provide a procedure for motions to quash subpoenas seeking testimony, the courts will still consider and rule upon such motions.

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1. Contact other party first

As a general practice, it can be helpful to contact the attorney who has served the subpoena. This can serve as an opportunity to narrow issues and to confirm or clarify the testimony or documents sought.

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2. Filing an objection or a notice of intent

In civil cases, Fed. R. Civ. P. 45(d)(2)(B) states that once an individual is served with a subpoena seeking documents, he has fourteen days after service (or until the time specified for compliance, if such time is less than fourteen days after service of the subpoena) to serve a written objection on the opposing party. Pursuant to Rule 45(e)(2), if a reporter is withholding information under the claim that the information is privileged, the claim must be made expressly, and must be supported by a description of the nature of the information withheld. This written objection prevents the subpoenaing party from gaining access to the requested information except by court order. The serving party may respond to a written objection by moving for an order to compel the production of the information, upon notice to the subpoenaed individual.

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3. File a motion to quash

a. Which court?

The motion to quash should be filed in the court where compliance with the subpoena is required.  Fed. R. Civ. P. 45 (d)(3).

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b. Motion to compel

A motion to compel is the method by which a subpoenaing party may compel production, if the reporter refuses to comply with the demands of the subpoena. Once the reporter files his objection under Fed. R. Civ. P. 45(c)(2)(B), the party issuing the subpoena may move to compel production of the requested documents.  When subpoenaed, the reporter may but need not wait for the party that issued the subpoena to file a motion to compel before filing a motion to quash.

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c. Timing

The reporter should promptly move to quash or modify a subpoena. Under Fed. R. Civ. P. 45(d)(2)(B), when documents are sought in civil cases, the reporter must file a written objection to the subpoena within 14 days after service of the subpoena, or at any time before the time specified for compliance, if such time is less than 14 days from the date of service.

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d. Language

Although there is no stock language to include in a motion to quash, the motion should expressly identify the area of testimony or the documents which the reporter objects to providing and the basis for asserting a qualified privilege.

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e. Additional material

Although not required under any reported First Circuit decision or procedural rule, a motion to quash should be supported by a reporter’s affidavit. In the affidavit, the reporter may attest to the fact that he promised the source confidentiality, that his work as a reporter depends on the ability to promise sources confidentiality, and that his career as a journalist would be compromised if he were required to reveal the confidential source.

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4. In camera review

a. Necessity

In United States v. LaRouche Campaign, 841 F.2d 1176 (1st Cir. 1988), NBC appealed a ruling from the district court of Massachusetts ordering NBC to produce outtakes of an interview with a key witness for in camera review. NBC argued that the district court should not have ordered in camera review because the defendants had not shown that the subpoenaed material was sufficiently evidentiary. Id. Interpreting Fed. R. Crim. P. 17(c), the First Circuit held that although NBC had raised First Amendment concerns, the balance fell in favor of the defendants because the information was not confidential. Id. at 1180.

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In United States v. LaRouche Campaign 841 F.2d 1176 (1st Cir. 1988), NBC failed to comply with an order to submit outtakes of an interview with a key witness to in camera review. The Massachusetts District Court held NBC in civil contempt and fined them $500 a day. Id. The First Circuit held that this decision was not an abuse of discretion. Id.

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c. Consequences of refusing

By ordering an in camera review, a court requires the subpoenaed party to comply with the subpoena. Thus, a reporter can be held in contempt for failing to comply with a court order for in camera review.

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5. Briefing schedule

There is no separate briefing schedule for a motion to quash. The local rules of each district court set forth the briefing schedule for the filing of the motion. For example, the Massachusetts federal district court, in Local Rule 7.1, requires that any motion be submitted with a memorandum of reasons and supporting affidavit or documents, and that the opposition and any supporting affidavit or documents be filed together within 14 days after service of the motion; a reply brief may only be filed with the court’s leave.

The clerk at the court usually contacts the parties to schedule a hearing. A party may also contact the clerk to schedule a hearing date. Where the information is a pressing concern, courts may expedite the process by scheduling a hearing immediately.

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6. Amicus briefs

Amicus briefs are not routinely filed but may be accepted by the courts if they are relevant. The relevancy of a particular amicus brief is determined on a case-by-case basis. “The United States or its officer or agency, or a state may file an amicus-curiae brief without the consent of the parties or leave of court. Any other amicus curiae may file a brief only by leave of court or if the brief states that all parties have consented to its filing.” Fed. R. App. Proc. 29(a).  See also 1st Cir. Local Rule 29 (a)(2).

The First Circuit requires a party seeking to submit an amicus brief to file a motion, accompanied by the proposed brief, which sets forth his interest in the matter, the reason why an amicus brief is desirable and why the matters asserted are relevant to the disposition of the case. The motion must be filed no later than 7 days after the principal brief of the party being supported is filed, or, if neither side is being supported, no later than 7 days after the appellant’s or petitioner’s principal brief is filed. (Fed. R. App. Proc. 29(a)(6)).  See also 1st Cir. Local Rule 29(a).

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VI. Substantive law on contesting subpoenas

A. Burden, standard of proof

As the First Circuit stated in Bruno & Stillman v. Globe Newspaper Co., “Initially each party has a burden. The plaintiff must establish the relevance of the desired information and the defendant [reporter] has the burden of establishing [the] need for preserving confidentiality.” 633 F.2d 583, 597 (1st Cir. 1980). The court also must be satisfied that the claim is not frivolous or filed as a pretense for using discovery as a fishing expedition for information; therefore, the court may require the plaintiff to show that it can establish jury issues on the essential elements its underlying case. Id. at 597. See also In re Special Proceedings, 373 F.3d 37, 45 (D.R.I. 2003); Levesque v. Doocy, 247 F.R.D. 55, 57-58 (D. Me. Dec. 11, 2007). As long as the case does not appear frivolous and the desired information appears remotely relevant, the court will assess the extent to which there is a need for confidentiality. Id.; see also Alharbi v. TheBlaze, Inc. 199 F. Supp. 3d 334, 348 (2016).

Under New Hampshire’s qualified reporter’s privilege, once the applicant shows that he has exhausted all reasonable means of identifying the source, and the reporter still fails to reveal the source’s identity, it is presumed that the reporter did not have a source. Gray v. St. Martin’s Press, 221 F.3d 243, 253 (1st Cir. 2000).

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B. Elements

The First Circuit courts apply a balancing test that examines specific factors. In deciding a reporter’s privilege claim, the court will balance the potential harm to the free flow of information against the asserted need for the requested information. Bruno & Stillman v. Globe Newspaper Co., 633 F.2d 583, 595 (1st Cir. 1980). As to subpoenas in civil matters, the court essentially applies Fed. R. Civ. P. 26 with a heightened sensitivity to any First Amendment impact that might result from the compelled disclosure of sources. Id. at 596. See also Green v. Cosby, 152 F. Supp. 3d 31, 34 (D. Mass 2015).  Under Rule 26, a party may obtain discovery of any matter, not privileged, that is relevant to a party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues and whether the burden or expense of the proposed discovery outweighs its benefit. Id. at 36-38.  On the other hand, a court may for good cause issue any order which justice requires in response to a discovery request to protect a party from annoyance, embarrassment, oppression, or undue burden or expense. 633 F.2d at 597.  These protective orders may include limiting the scope of discovery, limiting the persons who have access to certain discovery matters, or sealing from public disclosure any information obtained during discovery.  Id. at 595; see also Drumgold v. City of Boston, 1:04-cv-11193, ECF No. 92 at 36-37 (D. Mass. 2007).

In criminal cases, once a reporter asserts the privilege, the moving party must meet certain elements for the court to require the media to divulge the information. United States v. The LaRouche Campaign, 841 F.2d 1176, 1179 (1st Cir. 1988).  The moving party must demonstrate that: (1) the information is evidentiary and relevant; (2) the information is not otherwise procurable reasonably in advance of trial by the exercise of due diligence; (3) the moving party cannot properly prepare for trial without this information being produced prior to trial, and the failure to obtain this information may unreasonably delay the trial; and (4) the application is made in good faith and not intended as a general “fishing expedition.” Id. (quoting United States v. Nixon, 418 U.S. 683, 699-700 (1974)). The courts have reduced this test to the following three hurdles: (1) relevancy; (2) admissibility; and (3) specificity. Nixon, 418 U.S. at 700.  Fed. R. Crim. P. 17(c) provides that a court may quash or modify a subpoena if compliance would be unreasonable or oppressive.

If the moving party demonstrates that it can meet these elements with “sufficient likelihood,” the court then assesses the potential harm to the reporter’s First Amendment interests, including: the threat of administrative and judicial intrusion into the newsgathering process; the threat of turning journalists into “an investigative arm of the judicial system;” the disincentive for the media to compile and preserve investigative material; and the burden on reporters’ time and resources in responding to subpoenas. The court balances these harms against the subpoena-issuing party’s interest in the privileged information. In criminal cases, this includes the defendant’s constitutional rights to a fair trial under the Fifth and Sixth Amendments. United States v. LaRouche, 841 F.2d 1176, 1182 (1st. Cir. 1988).  Finally, if the court has any concerns about ordering the public release of the information, it conducts an in camera review to aid in its determination prior to compelling disclosure. Id. at 1183.

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1. Relevance of material to case at bar

Under both the civil and criminal tests, the requested information must be relevant to the moving party’s claim for the court to compel its disclosure. Under the civil standard, the information must be relevant to a party’s claim or defense proportional to the needs of the case. Bruno & Stillman v. Globe Newspaper Co., 633 F.2d 583, 597 (1st Cir. 1980). Under the criminal standard, there must be a “substantial likelihood” that the information would be relevant and admissible at trial. United States v. ShayI”), 21 Media L. Rep. 1415, 1416 (D. Mass. 1993).  In In re Request from United Kingdom, 718 F.3d 13, 23-24 (1st Cir. 2013), the court followed Branzburg, and determined that materials relevant to the subpoena be produced under an ordinary standard of relevance and not under a standard of direct relevance to the criminal investigation.

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2. Material unavailable from other sources

Although the First Circuit courts do not specifically require the moving party to demonstrate that he has made all reasonable efforts to obtain the information by alternative means, this can be a significant factor that the courts consider when balancing the requesting party’s needs against the media’s First Amendment interests. The courts have refused to compel the disclosure of confidential information where the moving party could procure this information through other avenues. See, e.g., In re Special Proceedings, 373 F.3d 37, 45 (1st Cir. 2004) (citing Cusumano v. Microsoft Corp., 162 F.3d 708, 713 (1st Cir. 1998) (holding that disclosure of confidential information would not be compelled where the moving party could secure the information through other, less intrusive avenues but finding that the information sought from the reporter was not readily available from a less sensitive source)); Summit Tech., Inc. v. Healthcare Capital Group, Inc., 141 F.R.D. 381, 384 (D. Mass. 1992) (refusing to require the disclosure of a source’s identity where the defendant had disclosed the name of other sources, the content of his conversation with the unnamed source, and the time frame of their conversation, and where this information was sufficient for the moving party to learn the source’s identity by other means); Alharbi v. The Blaze, Inc., 199 F. Supp. 3d 334, 348-49 (D. Mass. 2016) (considering whether the information sought from the reporter was available from any non-confidential sources and finding that the plaintiff could not obtain information to verify the truth of what the confidential sources allegedly told the defendants from a less sensitive source).

Under New Hampshire law, which the First Circuit has applied in diversity cases involving claims arising under state law, the moving party must demonstrate that it has made “all reasonable efforts to obtain the identity of the confidential source by other reasonable means.” Gray v. St. Martin’s Press, Inc., 221 F.3d 243, 252 (1st Cir. 2000).

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a. How exhaustive must search be?

Since the First Circuit does not specifically require that the moving party demonstrate that it has attempted to obtain the information by alternative means, there is no standard addressing how exhaustive a search for other means must be. However, courts will factor any search, and its extensiveness, into their consideration of the moving party’s need for the information.

When the First Circuit courts apply New Hampshire’s reporter’s privilege, the moving party must demonstrate that it has made “all reasonable efforts” to obtain the information by alternative means. Gray v. St. Martin’s Press, Inc., 221 F.3d 243, 252 (1st Cir. 2000).

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

The First Circuit does not specifically require the moving party to demonstrate that it has taken measures to obtain the information by alternative methods. The court will consider whether the party can demonstrate this as it makes its overall determination of the subpoenaing party’s need for the information. However, as a general rule, where the courts find that alternative sources for the information exist and can be pursued without undue hardship, they will require the subpoenaing party to pursue those avenues first.

When the First Circuit applies New Hampshire’s reporter’s privilege, it is the moving party’s burden to demonstrate that it has made “all reasonable efforts” to obtain the information by alternative methods.

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c. Source is an eyewitness to a crime

There is no reported First Circuit decision specifically addressing this issue.

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3. Balancing of interests

In both criminal and civil matters, the First Circuit courts engage in a balancing test, weighing the moving party’s asserted need for the information against the media’s First Amendment concerns in keeping the information confidential. Some of the factors which the court will consider in determining the moving party’s need for the information include: (1) the relevancy and importance of the information; (2) whether the information is otherwise obtainable by alternative methods; (3) whether the moving party cannot properly prepare for trial without this information; and (4) whether the application is made in good faith and not intended as a general “fishing expedition.” United States v. LaRouche Campaign, 841 F.2d 1176, 1179 (1st Cir. 1988). The court will also consider the following factors concerning the subpoenaed party’s First Amendment interests: (1) the chilling effect on the free flow of information between reporters and their sources; (2) the intrusion of government interfering with the newsgathering process; (3) the threat of turning journalists into “an investigative arm of the judicial system”; (4) the potential disincentive for the media to compile and preserve investigative material; and (5) the burden on reporters’ time and resources in responding to subpoenas. Id. at 1182.

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4. Subpoena not overbroad or unduly burdensome

A subpoena may be quashed if it subjects a reporter to “an undue burden” (Fed. R. Civ. P. 45(d)(3)) or if compliance with the subpoena would be “unreasonable or oppressive” (Fed. R. Crim. P. 17). Courts in the First Circuit have broad discretion to fashion appropriate remedies in response to motions to quash subpoenas. As the First Circuit stated in Bruno & Stillman, “[t]he court . . . has available to it a range of actions that can be tailored to the needs of sensitive balancing.” Bruno & Stillman v. Globe Newspaper Co., 633 F.2d 583, 598 (1st Cir. 1980). The court can use its discretion to fashion creative remedies in situations where the moving party is entitled to some information, but the subpoena is overly broad. For example, the court may order in camera review of certain information and disclosure of other information. The court may defer disclosure of certain information until more discovery has taken place, or it may require that the moving party first resort to alternative sources. Id. The court can also order a deposition or other discovery, but with limited scope, and restrict the parties who may attend this deposition or access this information. The court has broad flexibility to fashion remedies to meet the needs of the particular circumstances. “Other kinds of conditions may be imposed, limited only by the needs of the situation and the ingenuity of court and counsel.” Id.

 

In Pan Am Systems, Inc. v. Atlanta Northeast Rails and Ports, 804 F.3d 59, 63 (1st Cir. 2015), the First Circuit (citing Bruno & Stillman, Inc. v. Globe Newspaper Co., 633 F.2d 583, 597-98 (1st Cir. 1980)) referenced with approval the trial court’s decision to bifurcate discovery in the underlying defamation case; concerned that a fight over the element of fault might require media defendants to divulge confidential sources, the district court there ordered the parties to do discovery on all issues except fault, followed by summary judgment on those issues, followed by discovery on fault if needed.

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5. Threat to human life

There is no reported First Circuit decision specifically addressing this issue.

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6. Material is not cumulative

There is no reported First Circuit decision specifically addressing this issue.

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7. Civil/criminal rules of procedure

Under Fed. R. Civ. P. 26(b), a party may obtain discovery regarding “any non-privileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.”  Id. Rule 26 permits courts to issue any order which justice requires in response to a discovery request, to protect a party from annoyance, embarrassment, oppression, or undue burden or expense. Id. These protective orders include limiting the scope of discovery of certain matters, restricting the persons who have access to certain discovery matters, and sealing from the public any information obtained during discovery. Bruno & Stillman v. Globe Newspaper Co., 633 F.2d 583, 596-97 (1st Cir. 1980).

Fed. R. Civ. P. 45 outlines the protections available to individuals subject to subpoenas. Rule 45 (d)(1) imposes sanctions on a subpoenaing party when it fails to take reasonable steps to ensure that a subpoena is not unduly burdensome. Under Rule 45(d)(3), a court will quash or modify a subpoena if it: (1) fails to allow reasonable time for compliance, (2) requires another individual to travel more than 100 miles from his or her residence, place of employment or where he or she regularly conducts business, (3) requests the disclosure of privileged matter, or (4) subjects the individual to an undue burden. However, upon a showing of the moving party’s substantial need for the information, a court may choose to either modify or quash the subpoena.

Under Fed. R. Crim. P. 17(c), the moving party must demonstrate, among other things, that the request for information is made in good faith and not intended as a general “fishing expedition.” United States v. LaRouche Campaign, 841 F.2d 1176, 1179 (1st Cir. 1988).

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8. Other elements

The First Circuit has not listed any other specific elements which a party must overcome in order to be protected under the reporter’s privilege. Rather than requiring a party to meet specific elements, the First Circuit courts perform a general balancing test, which examines all of the surrounding factors and circumstances that indicate either the moving party’s need for the information or the reporter’s need to keep the information confidential.

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C. Waiver or limits to testimony

1. Is the privilege waivable?

The First Circuit courts have not directly addressed the issue of when a reporter is deemed to have waived the privilege. However, the disclosure of a confidential source or confidential information could function as a “waiver” in that First Amendment interests in non-disclosure would be substantially diminished.

In Fischer v. McGowan, the Rhode Island district court addressed this issue under Rhode Island state law. 585 F. Supp. 978 (D.R.I. 1984). Rhode Island has a reporter shield law which protects reporters from being forced to reveal confidential sources of information. Id. at 984. However, the Rhode Island shield law does not apply to information that has already been made public, nor does it apply where the defendant asserts the privilege as a defense to a defamation action or in secret government proceedings (such as grand jury hearings). Id. The reporter in Fischer wrote an article in which he identified a general class of persons from whom he could have obtained the information. Id. at 985. In the article, the reporter also identified two of his sources, but he refused to name others. Id. The subpoenaing party claimed that the reporter waived his right to assert the privilege with respect to his unnamed sources, since he had revealed two other sources and mentioned a class of people from whom his information may have been derived. Id. The court rejected this argument and held that this type of “partial disclosure” does not result in a finding of waiver. Id. at 986.

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2. Elements of waiver

a. Disclosure of confidential source's name

There is no reported First Circuit decision specifically addressing this issue.

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b. Disclosure of non-confidential source's name

There is no reported First Circuit decision specifically addressing this issue.

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c. Partial disclosure of information

A reporter may disclose some information from a source or about a source without waiving the privilege. See, e.g., Summit Tech., Inc. v. Healthcare Capital Group, Inc., 141 F.R.D. 381, 384 (D. Mass. 1992) (finding that the subpoenaed party’s revealing the identity of certain non-confidential sources as well as the content and timing of his conversations with an unnamed source did not waive the reporter’s privilege as to the unnamed source); Fischer v. McGowan, 585 F. Supp. 978, 987 (D.R.I. 1984) (holding that a reporter’s “partial disclosure” of the identity of two sources and the class of people from whom he derived his information did not waive the privilege as to the unnamed sources under Rhode Island state law).

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d. Other elements

There is no reported First Circuit decision specifically addressing this issue.

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3. Agreement to partially testify act as waiver?

There is no reported First Circuit decision specifically addressing this issue.

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VII. What constitutes compliance?

A. Newspaper articles

Under the Federal Rules of Evidence, newspapers and periodicals are self-authenticating and require no extrinsic evidence of authenticity. Fed. R. Evid. 902(6). In the note to paragraph 6, the authors reason that “[t]he likelihood of forgery of newspapers or periodicals is slight indeed. Hence no danger is apparent in receiving them.” However, on the facts of a particular case, a court may require a reporter or a custodian of records to authenticate the material. Often this matter can be negotiated by the parties.

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B. Broadcast materials

There is no reported First Circuit decision specifically addressing what is required when turning over tapes of material that was aired, or who must appear as a representative or custodian of the broadcaster. This is usually a matter negotiated by the parties.

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C. Testimony vs. affidavits

There is no reported First Circuit decision specifically addressing whether an affidavit can replace in-court testimony, particularly where the testimony is intended merely to confirm that an article was true and accurate as published. Depending on the nature of the testimony and the purpose for which it is sought to be introduced, the Federal Rules of Evidence addressing authentication, hearsay, and exceptions to the hearsay rule will likely determine whether live testimony subject to cross-examination is required in a particular case. This will likely vary from case to case.

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D. Non-compliance remedies

The courts have broad discretion in fashioning remedies to force a reporter to comply with a valid subpoena. A court may hold the subpoenaed party in contempt for non-compliance under Fed. R. Civ. P. 45(g) and under Fed. R. Crim. P. 17(g).

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1. Civil contempt

Pursuant to Fed. R. Civ. P. 45(g) and Fed. R. Crim. P. 17(g), if a reporter refuses or fails to comply with a subpoena without adequate excuse, he can be found in contempt of court. See also Blackmer v. United States, 284 U.S. 421, 438-440 (1932) (affirming contempt citation and fine imposed on a person who failed to comply with a criminal subpoena).

A subpoena demanding a nonparty witness to travel beyond that is fatally defective and cannot be enforced. Productos Mistolin, S.A. v. Mosquera, 141 F.R.D. 226, 229(D.P.R. 1992) (Subpoena from Florida commanding performance in Puerto Rico was facially void and unenforceable). A reporter who suspects that a subpoena is unenforceable would be wise, however, to seek the protection of the court to avoid any potential grounds for contempt.

In LaRouche, the First Circuit affirmed the lower court’s decision to hold a television network in civil contempt for failing to submit, for in camera review, outtakes of an interview with a prospective key witness. United States v. LaRouche Campaign, 841 F.2d 1176 (1st Cir. 1988).

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a. Fines

The First Circuit courts have imposed fines for failure to comply with a court order compelling the production of information. See, e.g., United States v. LaRouche Campaign, 841 F.2d 1176 (1st Cir. 1988) (affirming the district court’s decision to hold the media in civil contempt for failing to comply with a court order to submit a videotaped interview for in camera review).

Reporters who are held in contempt and fined for failure to comply with a subpoena may request the court to stay any penalties for contempt pending the outcome of an appeal. In such cases, the court will often expedite the appeal process. In LaRouche, the district court had ordered the media to submit, for in camera review, outtakes of a videotaped interview with a prospective key witness. United States v. LaRouche Campaign, 841 F.2d 1176, 1179 (1st Cir. 1988). The media did not comply with this order, and the court found the network to be in civil contempt. The court also fined the media $500 per day. Id. The fine was stayed pending the disposition of an expedited appeal. Id.

Compensatory sanctions in cases of civil contempt are limited to the loss suffered by the injured party as a result of the violation leading to contempt. See Dystar Corp. v. Santo, 1 F. Supp.2d 28 (D. Mass. 1997). However, there is no reported First Circuit decision that limits the amount of fines that can be levied against reporters who refuse to comply with a court order to disclose information. In In re Special Proceedings, 373 F.3d 37 (1st Cir. 2004), a reporter charged with civil contempt asserted that the $1,000 a day fine against him should be struck down for being punitive. The court rejected this charge, noting that the “obvious purpose” of the fine was to compel compliance. The court also stated that far more severe fines for civil contempt had been upheld in the First Circuit and in other circuits. See e.g., Int’l Union, United Mine Workers v. Bagwell, 512 U.S. 821, 830 (1994), In re Power Recovery Sys., Inc., 950 F.2d 798, 801-02 (1st Cir. 1991).

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b. Jail

Courts have the option of confining an unwilling witness to compel compliance Shillitani v. United States, 384 U.S. 364 (1966).

In In re Grand Jury Proceedings, 744 F.3d 211, 214 (1st Cir. 2014), the court noted that, “Unlike criminal contempt sanctions, incarceration for civil contempt is not for the purpose of punishing recalcitrant respondents but rather is the modern ‘persuasive’ tool . . . . An imprisoned contempter is therefore said to ‘carry the keys to his prison in his own pocket’” (emphasis in original) (citations omitted).

If the civil contemnor can demonstrate that there is no realistic possibility that continued confinement will result in a compliance, the confinement becomes punitive and the contemnor must be released. See Matter of Federal Grand Jury February 1987 Term (Griffin), 677 F.Supp. 26 (D.Me. 1988).

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2. Criminal contempt

Generally, 28 U.S.C. §1826(a) provides that where a witness to any proceeding before or ancillary to a court or grand jury refuses without just cause to testify or provide other information, including documents, the witness may be jailed for no longer than the life of the court proceeding or the term of the grand jury, including extensions, but in no event, for longer than eighteen months. Any appeal of such order of confinement must be disposed of as soon as practicable but not later than thirty days from the filing of the appeal.

Journalists have been sentenced to confinement in the First Circuit. In In re Special Proceedings, 33 Med. L. Rep. 1033, 1041(D.R.I. 2004), a reporter, held in criminal contempt for refusing to name the source from whom he had acquired a videotape subject to a protective order in a federal bribery case, was sentenced to six months home confinement. Because the federal sentencing guidelines do not prescribe a sentence for criminal contempt, the judge referenced the closest analog, 15 to 21 months for obstruction of justice. Id., at 1039. Although the court stressed the seriousness of the offense, stating that it “strikes at the heart of the rule of law,” the court showed leniency in consideration of the defendant reporter’s serious heart and other related health problems. Id., at 1038-40. Other conditions imposed on the defendant reporter’s confinement included forbidding him from: engaging in any business or profession during the confinement, accessing the internet, participating in any radio or television appearances, and receiving visitors outside of certain prescribed hours. Id. at 1041-42.

Because a fine for criminal contempt is intended to be punitive, as opposed to compensatory, the amount of the fine need not be commensurate with the victim’s loss. United States v. Kouri-Perez, 187 F.3d 1 (1st Cir. 1999).

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3. Other remedies

There is no reported First Circuit decision specifically addressing whether courts may impose remedies other than those discussed in the sections above. However, under New Hampshire common law, which the First Circuit applied in Gray, the court noted that, where a plaintiff had exhausted all reasonable means of identifying a source and where the defendant book author refused to reveal the identity of a source, the plaintiff would be entitled to a presumption that no source existed. Gray v. St. Martin’s Press, 221 F.3d 243, 252 (1st Cir. 2000).

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VIII. Appealing

A. Timing

1. Interlocutory appeals

Interlocutory matters are issues that arise during the course of a lawsuit which decide a particular point but do not constitute a final decision of the entire controversy. Interlocutory matters are generally not appealable, since they are not “final decisions” concluding a proceeding. Denials of a motion to quash are generally interlocutory and not appealable. See Horizons Titanium Corp. v. Norton Co., 290 F.2d 421, 423 (1st Cir. 1961), and cases cited.

After having a motion to quash denied, if a reporter refuses to comply with a court order, the reporter can be held in contempt. The court’s decision to hold a reporter in contempt is considered a final decision that can be appealed. Also, if the reporter is a party to the case, once the court decides the case, either party can appeal the court’s decision, including its decision to compel (or not to compel) the reporter to produce information.

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2. Expedited appeals

Appeals may be expedited, particularly when there is a pressing need for the reporter’s information. First, the appealing party must file a notice of appeal with the district court. Then it may file a Motion for Expedited Appeal with the First Circuit. No specific form or language is required, except for noting in the heading: “Motion for Expedited Appeal.” The Motion to Expedite should emphasize the First Amendment concerns raised and the need for prompt review to avoid any further burdening or violation of such interests. Where a reporter has been jailed for contempt, his or her appeal must be disposed of as soon as practicable but, in no event, later than thirty days from the filing of the appeal. 28 U.S.C. §1826(b).

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B. Procedure

1. To whom is the appeal made?

In a civil case generally and in accordance with Fed. R. App. P. 4(a)(1)(A), notices of appeal must be filed with the district court clerk 30 days after the judgment or order appealed from is entered.  Fed. R. App. P. 3(a)(1).  When the United States or its officer or agency is a party, the notice of appeal may be filed by any party within 60 days after the judgment or order appealed from is entered. Fed. R. App. P. 3(a)(2).  In a criminal case, a defendant’s notice of appeal must be filed within 14 days after the later of the entry of judgment or the order being appealed or the filing of the government’s appeal.  Fed. R. App. P. 4(b)(1)(A).

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2. Stays pending appeal

The First Circuit follows Fed. R. App. P. 8, under which a party must ordinarily move first in the district court for a stay of the judgment or order of a district court pending appeal.  This motion may be made in the Court of Appeals provided that the motion “show[s] that moving first in the district court would be impracticable ... or state[s] that, a motion having been made, the district court denied the motion or failed to afford the relief requested and state[s] any reasons given by the district court for its action.” Fed. R. App. P. 8(a)(2)(A).  This motion must also include the reasons for granting the relief requested and the facts relied on, originals or copies of affidavits or other sworn statements supporting facts subject to dispute, and the relevant parts of the record.  Fed. R. App. P. 8(a)(2)(B).  Additionally, the moving party must give reasonable notice of the motion to all parties.

Courts in the First Circuit may stay penalties for contempt pending the outcome of an appeal.  In these cases, it is also likely that the court will expedite the appeal process.

In In re Special Proceedings, 32 Med. L. Rep. 1905 (D.R.I. 2003), the Rhode Island District Court denied a reporter’s motion to stay a court order compelling him to answer a special prosecutor’s questions regarding his source.  The source had leaked surveillance tapes of Providence city officials indicted for extortion, bribery and other offenses in violation of a protective order prohibiting dissemination.  Id.  The court stated that “a party seeking a stay must demonstrate four things: a strong likelihood of success on the merits of its appeal; that [the party] will suffer irreparable harm if a stay is not granted; that the harm will outweigh any harm opposing parties will suffer if the stay is granted; and that the public interest would be furthered by granting the stay.” Id., quoting In re Power Recovery Sys., Inc., 950 F.2d 798, 804 n. 31 (1st Cir. 1991).  The court found that the reporter had demonstrated neither a likelihood of success on the merits nor that granting the stay was in the public interest and denied the stay.  Id.

After the reporter continued to conceal his source, the District Court held him in civil contempt and ordered him to pay $1,000 a day until the contempt was purged.  In re Special Proceedings, 373 F.3d 37, 41 (1st Cir. 2004).  The reporter sought review, and the court granted a stay of the order pending expedited review.  Id.  Although the court expressed doubts about the merits of the case just as it had in the 2003 decision, they held that the First Amendment interests justified a stay.  Id.  In contrast with the motion to stay the order to compel, the court found that the interest balanced in the reporter’s favor given the expedition of the appeal and the minimal risk of harm from a brief further delay.  Id.

In LaRouche, the district court had ordered the media party to submit, for in camera review, the outtakes of a videotaped interview with a prospective key witness.  United States v. LaRouche Campaign, 821 F.2d 1176 (1st Cir. 1988).  The network did not comply with this order, and the court found it to be in civil contempt.  The court also fined the network $500 per day.  Id.  The fine was stayed pending the disposition of an expedited appeal.  Id.

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3. Nature of appeal

There is no reported First Circuit decision specifically addressing this issue.

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4. Standard of review

In reviewing a lower court’s decision on a motion to compel, the standard of review is whether the order was an abuse of discretion on the part of the court.  See e.g. United States v. LaRouche Campaign, 841 F.2d 1176, 1178 (1st Cir. 1988).  See also In Grand Jury Investigation, 545 F.3d 21, 24 (1st Cir. 2008).

In Bruno & Stillman, the First Circuit stated, “While obviously the discretion of the trial judge has wide scope, it is a discretion informed by an awareness of First Amendment values and the precedential effect which [a] decision in any one case would be likely to have.  Given the sensitivity of inquiry in this delicate area, detailed findings of fact and [an] explanation of the decision would be appropriate.” Bruno & Stillman v. Globe Newspaper Co., 633 F.2d 583, 598 (1st Cir. 1980).

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5. Addressing mootness questions

Where a reporter chooses to comply with a subpoena, the First Circuit has held that, in the absence of compelling circumstances such as criminal penalties, courts will not later decide whether the subpoena was valid and enforceable, since the issue became moot once the reporter complied with the subpoena.  Boston Teachers Union v. Edgar, 787 F.2d 12, 14 (1st Cir. 1986); United States v. Arthur Anderson & Co., 623 F.2d 720, 725 (1st Cir. 1980).  The First Circuit has further held that the “capable of repetition yet evading review” exception is not available to a subpoenaed party once he has chosen to comply with a subpoena.  Id.

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6. Relief

The reporter’s attorney should request the First Circuit to vacate any order requiring disclosure of confidential sources or information.

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IX. Other issues

A. Newsroom searches

There is no reported First Circuit decision specifically addressing this issue.

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B. Separation orders

There is no reported First Circuit decision specifically addressing this issue.

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C. Third-party subpoenas

There is no reported First Circuit decision specifically addressing this issue.

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D. The source's rights and interests

There is no reported First Circuit decision specifically addressing this issue.

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