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Georgia

Reporters Privilege Compendium

Peter C. Canfield[1]
Jones Day
1420 Peachtree Street, N.E.
Suite 800
Atlanta, GA 30309-3053
Tel: (404) 581-8956
pcanfield@jonesday.com

[1] The views reflected in this compendium are personal to its author and do not necessarily represent those of Jones Day.

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I. Introduction: History & Background

Since its enactment in 1990, the Georgia Supreme Court has repeatedly enforced Georgia's qualified reporter's privilege to protect the news media. Additionally, the Court has recognized a right of automatic appeal for non-party reporters in the event a trial court orders disclosure of newsgathering information notwithstanding an objection under the privilege. Given the established law regarding the privilege, the news media routinely prevails on those occasions that a litigant seeks to compel information from a non-party reporter obtained in the process of newsgathering.

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II. Authority for and source of the right

A. Shield law statute

In Georgia, the reporter's privilege is recognized by statute, which states:

Any person, company, or other entity engaged in the gathering and dissemination of news for the public through any newspaper, book, magazine, radio or television broadcast, or electronic means shall have a qualified privilege against disclosure of any information, document, or item obtained or prepared in the gathering or dissemination of news in any proceeding where the one asserting the privilege is not a party, unless it is shown that this privilege has been waived or that what is sought:

(1) Is material and relevant;

(2) Cannot be reasonably obtained by alternative means; and

(3) Is necessary to the proper preparation or presentation of the case of a party seeking the information, document, or item.

O.C.G.A. § 24-5-508.

The privilege was originally codified in 1990, as O.C.G.A. § 24-9-30, by the Georgia General Assembly after the Georgia Supreme Court ruled that Georgia law afforded no special relief to subpoenaed reporters. See generally Vaughn v. State, 259 Ga. 325 (1989); Howard v. Savannah College of Art and Design, Inc., 259 Ga. 795 (1990).

In oral argument in Howard, Justice Charles L. Weltner suggested that a reporter's privilege would have to come from the state legislature. The following legislative session the Georgia Press Association lobbied for a statutory privilege, which resulted in the adoption of O.C.G.A. § 24-9-30.

In 2011, as part of a general overhaul of Georgia’s evidence code that went into effect in 2013, the privilege was recodified as O.C.G.A. § 24-5-508 with a change making clear that it protected electronic media.

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B. State constitutional provision

The Georgia Constitution does not have an express shield law provision. Prior to the enactment of the shield statute, the Georgia Supreme Court declined to interpret the State Constitution as affording reporters a privilege in the context of grand jury testimony. See Vaughn v. State, 259 Ga. 325 (1989) (interpreting Branzburg v. Hayes, 408 U.S. 665 (1972) as affording no relief to a reporter subject to a grand jury subpoena and "declin[ing] to interpret the Constitution of Georgia to afford any greater right") (1989).

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C. Federal constitutional provision

Prior to the enactment of the shield statute, the Georgia Supreme Court declined to recognize a reporter's privilege in the context of a grand jury subpoena and a deposition subpoena in civil litigation. See Vaughn v. State, 259 Ga. 325 (1989) (grand jury subpoena); Howard v. Savannah College of Art and Design, Inc., 259 Ga. 795 (1990) (civil deposition subpoena).

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D. Other sources

Even where no formal evidentiary privilege applies, Georgia courts have repeatedly recognized that trial courts must take protective measures to prevent litigants from seeking to compel sensitive information from a party or witness, particularly where there has been no showing that the evidence is necessary to prove a viable claim. See, e.g., Ledee v. Devoe, 225 Ga. App. 620, 625 (1997) ("it is the trial court's obligation to assure that the scope of the discovery is restricted to the extent necessary to prevent an unreasonable intrusion into the defendant's privacy").

Based on such precedent, the Georgia Court of Appeals has recognized that in defamation claims against the media where the statutory privilege does not apply because the defendant reporter is a party, the trial courts must nevertheless strictly control discovery seeking disclosure of the identity of confidential sources. Atlanta Journal-Constitution v. Jewell, 251 Ga. App. 808, 813 (2001) ("there is a strong public policy in favor of allowing journalists to shield the identity of their confidential sources unless disclosure is necessary to meet other important purposes of the law"), cert. denied, 2002 Ga. Lexis 103 (2002), cert. denied, 537 U.S. 814 (2002).  See also Bryant v. Cox Enterprises, 311 Ga. App. 230 (2011) (affirming trial court’s denial of motion to compel disclosure of confidential sources and entry of summary judgment for newspaper), cert. denied, 2012 Ga. LEXIS 37 (2012).

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III. Scope of protection

A. Generally

Since its enactment, Georgia's statutory privilege has been enforced by Georgia state and federal courts in vigorous fashion. It is now well settled that the privilege applies to confidential and non-confidential information and to both testimony and records obtained in the process of gathering or delivering the news. See generally In re Paul, 270 Ga. 680, 684 (1999) (rejecting effort to compel testimony from reporter who did a jailhouse interview of accused murderer: "[The shield law] protects against the 'disclosure of any information document or item obtained or prepared in the gathering or dissemination of the news.' Thus, the statutory language does not distinguish between the source's identity and information received from the source or between non-confidential and confidential information.").

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B. Absolute or qualified privilege

Qualified.

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C. Type of case

1. Civil

The privilege applies in civil proceedings. See, e.g., O.C.G.A. § 24-5-508 (privilege applies "in any proceeding where the one asserting the privilege is not a party"); In re Paul, 270 Ga. 680, 684 (1999).

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2. Criminal

The privilege applies in criminal proceedings. See, e.g., O.C.G.A. § 24-5-508 (privilege applies "in any proceeding where the one asserting the privilege is not a party"); In re Paul, 270 Ga. 680, 684 (1999).

Georgia courts have repeatedly enforced the privilege in the face of claims by criminal defendants that the privilege infringed their Sixth Amendment rights. See, e.g., Stripling v. State, 261 Ga. 1, 8-9 (1991) (affirming trial court's refusal to require a newspaper reporter to reveal sources in a death penalty case, noting that alternative sources existed to pursue allegations of illegal conduct by sheriff's department); Nobles v. State, 201 Ga. App. 483, 486-87 (1991) (affirming quashing of subpoena issued to reporter covering murder trial: "it has [not] been shown that the disclosure of the source of this erroneous information was in any way material or relevant or necessary").

Georgia courts have also enforced the privilege where the state sought to compel information. See, e.g., In re Paul, 270 Ga. at 685-86 ("the appeal presents a conflict between the public's right to evidence at a criminal trial and its competing right to the unencumbered flow of information through the news media").

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3. Grand jury

The privilege applies to grand jury subpoenas. See, e.g., O.C.G.A. § 24-5-508 (privilege applies "in any proceeding where the one asserting the privilege is not a party"); In re Paul, 270 Ga. 680, 684 (1999).

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D. Information and/or identity of source

The privilege protects the identity of sources and any records that would tend to reveal such sources. See, e.g., In re Paul, 270 Ga. 680, 684 (1999) ("[T]he statutory language does not distinguish between the source's identity and information received from that source.").

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E. Confidential and/or nonconfidential information

In addition to protecting confidential sources and information, the privilege also protects against the compelled disclosure of non-confidential sources and information. See, e.g., In re Paul, 270 Ga. 680, 684 (1999) ("Unlike some states, the Georgia statute does not limit the privilege solely to confidential sources, but protects against the disclosure of any information obtained or prepared.").

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F. Published and/or non-published material

Publication of information waives the privilege with respect to the published article or broadcast itself, but does not waive the privilege with respect to non-published material. See, e.g., In re Paul, 270 Ga. 680, 686 (1999) ("Contrary to the State's contention, publication of part of the information gathered does not waive the privilege as to all of the information gathered on the same subject because it 'would chill the free flow of information to the public.'"). See also CSX Transportation v. Cox Broadcasting, Inc., No. E-59240 (Fulton County Superior Court, May 29, 1997) (denying and dismissing action in equity by CSX Transportation seeking discovery of raw, non-broadcast videotape taken by local television stations at scene of train accident, finding that the tape was privileged and CSX could not make the showing required by the statute to justify compelling the discovery sought).

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G. Reporter's personal observations

A reporter's personal observations are protected by the privilege so long as they occurred as part of the gathering or dissemination of the news. See O.C.G.A. § 24-5-508 (affording protection to "any information, document, or item obtained or prepared in the gathering or dissemination of news"). See also Vance v. Krause, Civil Action No. 90-1687-5 (DeKalb County Superior Court, Nov. 21, 1990) (where subpoena sought to compel testimony from non-party television station photographer who was also a long-time personal friend of defendant, trial court held that shield law protected from disclosure only information obtained by photographer as a news gatherer for purposes of dissemination to the public.).

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H. Media as a party

The privilege does not apply where a reporter with the information or material is a party. See O.C.G.A. § 24-5-508 (privilege applies "in any proceeding where the one asserting the privilege is not a party"). However, the Georgia Court of Appeals has specifically recognized that in defamation cases where the statutory privilege does not apply because the defendant reporter is a party, the trial courts must nevertheless strictly control discovery seeking disclosure of the identity of confidential sources. Atlanta Journal-Constitution v. Jewell, 251 Ga. App. 808, 813 (2001) ("other provisions of Georgia law require the trial court to balance the interests of the parties in virtually the same manner as the statute would require if it applied"), cert. denied, 2002 Ga. Lexis 103 (2002), cert. denied, 537 U.S. 814 (2002). See also Bryant v. Cox Enterprises, 311 Ga. App. 230 (2011) (affirming trial court’s denial of motion to compel disclosure of confidential sources and entry of summary judgment for newspaper), cert. denied, 2012 Ga. LEXIS 37 (2012).

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I. Defamation actions

Georgia's statutory privilege does not apply in cases where a reporter is a party, but other provisions of Georgia law afford protection to reporters. In Atlanta Journal-Constitution v. Jewell, 251 Ga. App. 808, 813 (2001), cert. denied. 2002 Ga. Lexis 103 (2002), cert. denied, 537 U.S. 814 (2002), the Georgia Court of Appeals held that although a newspaper could not invoke Georgia's statutory privilege in requesting protection for its confidential sources in discovery, it could invoke the protection afforded by Georgia law against sensitive discovery of any sort. Based on the longstanding protection Georgia courts have afforded to sensitive information, the Court of Appeals reversed the trial court and required it to take significant protective measures with respect to confidential sources:

To properly perform this balancing test in a libel case, the trial court must require the plaintiff to specifically identify each and every purported statement he asserts was libelous, determine whether the plaintiff can prove the statements were untrue, taking into account all the other available evidentiary sources, including the plaintiff's own admissions, and determine whether the statements can be proven false through the use of other evidence, thus eliminating the plaintiff's necessity for the requested discovery. In other words, if [plaintiff] cannot succeed on a specific allegation of libel as a matter of law, or if [plaintiff] is able to prove his specific allegation through the use of available alternative means, then the trial court's balancing test should favor nondisclosure of confidential sources. If, on the other hand, a specific allegation of libel is determined to be legally viable, or if it cannot be determined whether the allegation is legally viable given the current state of the record, and if the identity of the sources either is relevant and material in and of itself or is the only available avenue to other admissible evidence, then the trial court's balancing test should favor disclosure of the confidential sources.

251 Ga. App. at 813. Performing the balancing test set forth by the Court of Appeals on remand, the trial court properly declined to compel the newspaper's confidential sources. Bryant v. Cox Enterprises, 311 Ga. App. 230 (2011) (affirming summary judgment for newspaper), cert. denied, 2012 Ga. LEXIS 37 (2012).

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IV. Who is covered

By its express statutory language, the scope of Georgia's privilege is very broad. It applies to "[a]ny person, company, or other entity engaged in the gathering or dissemination of news for the public through a newspaper, book, magazine, or radio or television broadcast, or electronic means." O.C.G.A. § 24-5-508.

With respect to such persons, the privilege applies not just to information or records obtained in "gathering" the news, but also to information and records prepared in "disseminating" the news. This latter provision precludes any claim that drafts or other internal records in the possession of editors or other news personnel are not privileged.

Under the terms of the statute, the privilege does not apply where the one asserting the privilege is a party, O.C.G.A. § 24-5-508, e.g., a defendant in a defamation action.  But see Atlanta Journal-Constitution v. Jewell, 251 Ga. App. 808, 813 (2001) (recognizing in defamation action that confidential sources must still be afforded protection under traditional discovery principles), cert. denied, 2002 Ga. Lexis 103 (2002), cert. denied, 537 U.S. 814 (2002). See also Bryant v. Cox Enterprises, 311 Ga. App. 230 (2011) (affirming trial court’s denial of motion to compel disclosure of confidential sources and entry of summary judgment for newspaper), cert. denied, 2012 Ga. LEXIS 37 (2012).

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A. Statutory and case law definitions

1. Traditional news gatherers

a. Reporter

The privilege applies to a full or part time reporter as well as any person "engaged in the gathering or dissemination of news." O.C.G.A. § 24-5-508.

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b. Editor

The privilege applies to a full or part time editor as well as any person "engaged in the gathering or dissemination of news." O.C.G.A. § 24-5-508.

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c. News

The statutory privilege does not limit the definition of "news" in any fashion, nor have the Georgia courts.

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d. Photo journalist

The privilege applies to a full or part time photo journalist as well as any person "engaged in the gathering or dissemination of news." O.C.G.A. § 24-5-508.

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e. News organization/medium

By its express statutory language, the privilege applies to "[a]ny person, company, or other entity engaged in the gathering or dissemination of news for the public through a newspaper, book, magazine, or radio or television broadcast, or electronic means." O.C.G.A. § 24-5-508.

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2. Others, including non-traditional news gatherers

Because of its broad scope, the privilege protects not just traditional reporters, but any person "engaged in the gathering or dissemination of news for the public through a newspaper, book, magazine, or radio or television broadcast." This definition would include all authors, be they research assistants, newspaper librarians, student interns, etc. But see Vance v. Krause, Civil Action No. 90-1687-5 (DeKalb County Superior Court, Nov. 21, 1990) (where subpoena sought to compel testimony from non-party television station photographer who was also a long-time personal friend of defendant, trial court held that shield law protected from disclosure only information obtained by photographer as a news gatherer for purposes of dissemination to the public.).

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B. Whose privilege is it?

The reporter's privilege belongs to the person engaged in the gathering and dissemination of the news, not the source. In re Paul, 270 Ga. 680, 684 (1999).

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V. Procedures for issuing and contesting subpoenas

A. What subpoena server must do

1. Service of subpoena, time

There are no special requirements for serving a subpoena on the news media. Generally, under Georgia law, personal service of a subpoena commanding the attendance of a witness at a hearing or trial may be perfected by any sheriff, deputy or other person more than 18 years of age. Service may also be made by certified or registered mail. O.C.G.A. § 24-13-24. A court may consider whether under the circumstances of each case a subpoena was served within a reasonable time. O.C.G.A. § 24-13-26. In no event may the time of service be less than 24 hours prior to the time that appearance is required. Id.

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2. Deposit of security

A party issuing a subpoena commanding the attendance of a witness at a hearing or trial that is not in the witness's county of residence must include with the subpoena one day's witness fee ($25) plus mileage of 45 cents per mile for going from and returning to witness's residence. O.C.G.A. § 24-13-25. However, when the subpoena is issued on behalf of the state, or an officer, agency, or political subdivision of the state, or a defendant in a criminal trial, then fees and mileage need not be tendered. Id.

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3. Filing of affidavit

Georgia law does not require the filing of an affidavit prior to issuing a subpoena to a reporter.

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4. Judicial approval

Generally, a judge or magistrate does not need to approve a subpoena prior to it being served by a party. Subpoenas are issued in blank by the clerk under the seal of the court. O.C.G.A. § 24-13-21.

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5. Service of police or other administrative subpoenas

Georgia law does not recognize subpoenas for police and fire investigations in the absence of a grand jury or other judicial body. Certain administrative bodies can serve subpoenas, and their service rules generally conform to Georgia law referenced above.

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B. How to Quash

1. Contact other party first

It is generally advisable to contact the subpoenaing party prior to moving to quash a subpoena both because Georgia courts encourage voluntary efforts to resolve disputed matters and because it is helpful in the motion to quash to identify the alleged purpose for which the subpoenaing party seeks the information.

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2. Filing an objection or a notice of intent

A non-party can serve an objection in lieu of filing a motion to quash if the non-party receives a notice for the production of documents or a subpoena for the production of documents in connection with discovery in a civil case.

Pursuant to O.C.G.A. § 9-11-34(c)(1), where a party issues a notice to produce documents to a non-party as part of discovery in a civil case, the non-party may serve an objection to the notice, and the party will thereafter have to move to compel in order to obtain the discovery. The objection must be served within thirty days after the service of the notice.

Pursuant to O.C.G.A § 9-11-45(a)(2), where a party issues a subpoena to produce documents to a non-party as part of discovery in a civil case, the non-party may serve an objection to the subpoena, and the party will thereafter have to move to compel in order to obtain the discovery. The objection must be served "within ten days after the service [of the subpoena] or on or before the time specified in the subpoena for compliance if such time is less than ten days after service."

Georgia practice does not require the filing of a notice of intent. A motion to quash, however, must be accompanied by a memorandum in support. Uniform Superior Court Rule 6.1.

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3. File a motion to quash

a. Which court?

Generally, if a witness is a resident of Georgia and receives a subpoena to compel his attendance at a hearing or trial in a Georgia civil or criminal case, a motion to quash should be filed in the court hearing the case. See generally § 24-13-22 ("A subpoena requiring the attendance of a witness at a hearing or trial may be served at any place within the state.").

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b. Motion to compel

If a party to a lawsuit serves a subpoena or notice to produce and receives no compliance or response whatsoever, the party can argue that the failure to respond works as a waiver of objections. Accordingly, if a subpoena is not void on its face, the better practice is to move for a protective order.

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c. Timing

The amount of time a party has to respond to a subpoena or notice to produce depends on the legal authority under which it was issued.

A motion to quash should be filed "promptly and in any event at or before the time specified in the subpoena for compliance therewith." O.C.G.A. § 24-13-23.

For a subpoena for deposition issued as part of civil discovery pursuant to O.C.G.A § 9-11-45, a motion to quash may be filed "promptly and in any event at or before the time specified in the subpoena for compliance therewith." O.C.G.A § 9-11-45(a)(1)(C).

For a subpoena to produce documents as part of civil discovery pursuant to O.C.G.A § 9-11-45, an objection to the subpoena may be served "within ten days after the service [of the subpoena] or on or before the time specified in the subpoena for compliance if such time is less than ten days after service." O.C.G.A § 9-11-45(a)(2).

For a notice to produce documents as part of civil discovery pursuant to O.C.G.A. § 9-11-34, an objection to the notice may be served "within thirty days after the service of the request." O.C.G.A. § 9-11-34(c)(1).

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d. Language

There is no preferred language that should be included in a motion to quash.

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e. Additional material

Apart from the subpoena, additional materials appropriate for a motion to quash would depend on the circumstances of the case.

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4. In camera review

a. Necessity

Georgia law does not direct a court to conduct an in camera review of materials or interview a reporter prior to deciding a motion to quash. Moreover, as a matter of common practice, such review is generally not undertaken by Georgia courts.

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There is no Georgia law concerning consent to in camera review.

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c. Consequences of refusing

There is no Georgia law concerning the consequences of refusing to consent to an in camera review. Generally, in Georgia, a person protected by the privilege at O.C.G.A. § 24-5-508 can seek an immediate, direct appeal if they are ordered to testify or produce documents after invoking the privilege. See generally In re Paul, 270 Ga. 680, 684 (1999).

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5. Briefing schedule

Pursuant to Uniform Superior Court Rule 6.2, unless otherwise ordered, a party opposing a motion shall serve and file a response not later than 30 days after service of the motion.

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6. Amicus briefs

Georgia's trial and appellate courts accept amicus briefs. See generally Georgia Supreme Court Rule 23; Georgia Court of Appeals Rule 25.

State organizations that regularly oppose the issuance of subpoenas to reporters include the Georgia Press Association (http://gapress.org/) and the Georgia First Amendment Foundation (http://gfaf.org/).

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VI. Substantive law on contesting subpoenas

A. Burden, standard of proof

Once a member of the news media demonstrates that he or she is covered under the privilege, the challenged subpoena should be quashed unless the subpoenaing party can demonstrate either that the privilege has been waived or that the information sought (1) is material and relevant; (2) cannot be reasonably obtained by alternative means; and (3) is necessary to the proper preparation or presentation of the case of a party seeking the information, document, or item. O.C.G.A. § 24-5-508.

Georgia's appellate courts have repeatedly affirmed trial courts that have rejected showings as insufficient. See, e.g., Stripling v. State, 261 Ga. 1, 8-9 (1991); Nobles v. State, 201 Ga. App. 483, 486-87 (1991).

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B. Elements

A subpoenaing party seeking to compel testimony or documents from a member of the news media who has invoked the privilege must show that the information sought (1) is material and relevant; (2) cannot be reasonably obtained by alternative means; and (3) is necessary to the proper preparation or presentation of the case of a party seeking the information, document, or item. O.C.G.A. § 24-5-508.

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1. Relevance of material to case at bar

According to the statute, the subpoenaing party must demonstrate that the information sought is both "material and relevant" and "necessary to the proper preparation or presentation of the case." Georgia courts have interpreted this to mean that the information must be essential to a disputed material element of the claim or defense. Nobles v. State, 201 Ga. App. 483, 486-87 (1991) (affirming quashing of subpoena issued to reporter covering murder trial: "it has [not] been shown that the disclosure of the source of this erroneous information was in any way material or relevant or necessary").

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2. Material unavailable from other sources

According to the statutory privilege, the subpoenaing party must demonstrate the information sought "cannot be reasonably obtained by alternative means." This has been interpreted to require a showing that the information is unavailable from other sources. See, e.g., In re Paul, 270 Ga. 680, 687 (1999) ("[T]he state has failed to show that it could not reasonably obtain much of the information it seeks by alternative means.").

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a. How exhaustive must search be?

There must be a compelling showing that no other source for the information exists. See, e.g., In re Paul, 270 Ga. 680, 687 (1999) ("The state cannot obtain the identity of confidential sources or information from newspapers under the second prong of the test without first exerting an effort to obtain the same information from county and city employees."); Stripling v. State, 261 Ga. 1, 9 (1991) (affirming trial court's protection of reporter's confidential sources under the privilege in a death penalty case where the "defense team made no effort to contact" fewer than a dozen former sheriff's department employees who could have been the reporter's sources).

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

A subpoenaing party must make an evidentiary showing that demonstrates that no alternative source exists. See, e.g., In re Paul, 270 Ga. 680, 687 (1999) ("The state cannot obtain the identity of confidential sources or information from newspapers under the second prong of the test without first exerting an effort to obtain the same information from county and city employees."); Stripling v. State, 261 Ga. 1, 9 (1991) (affirming trial court's protection of reporter's confidential sources under the privilege in a death penalty case where the "defense team made no effort to contact" fewer than a dozen former sheriff's department employees who could have been the reporter's sources).

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c. Source is an eyewitness to a crime

Georgia courts have upheld the privilege in the context of a subpoena seeking the identity of a news reporter's source who is an eyewitness or participant in a crime. See Stripling v. State, 261 Ga. 1, 8-9 (1991) (affirming trial court's protection of reporter's confidential sources under the privilege in a death penalty case where the reporter refused to disclose the identity of former sheriff's department employees who informed her of a "systematic policy of eavesdropping" on attorney client conversations at a county jail).

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3. Balancing of interests

Although case law interpreting the Georgia privilege does not explicitly contemplate a "balancing" of interests, the analysis used by the appellate courts clearly incorporates a sensitivity to the broader principles protected by the privilege. See, e.g., In re Paul, 270 Ga. 680, 682 (1999) ("News stories based on confidential sources and information enable citizens to make more informed decisions about the conduct of government and its respect for individual rights.").

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4. Subpoena not overbroad or unduly burdensome

Under general principles applicable in Georgia criminal and civil procedure, a subpoena can be quashed if it is overbroad or unduly burdensome. See generally O.C.G.A. §§ 9-11-26(c) (authorizing entry of protective orders to protect party's from undue burden and to limit the scope of discovery) .

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5. Threat to human life

There is no provision in Georgia law that requires a court to consider whether the matter subpoenaed involves a threat to human life.

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6. Material is not cumulative

The Georgia privilege cannot be overcome where a party seeks testimony or materials that would be cumulative of existing evidence. See, e.g., In re Paul, 270 Ga. 680, 682 (1999) ("Not only does the state have at least two confessions on videotape, where the jury can observe the defendant, but the state also presented expert testimony of a forensic psychiatrist. Thus, the state does not need the reporter's testimony to prepare or present its case to the jury concerning Jill's mental state when he confessed to police.").

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7. Civil/criminal rules of procedure

In response to a subpoena seeking testimony, Georgia allows the filing of a motion to quash. See generally O.C.G.A. §§ 9-11-26(c). If a non-party receives a notice for the production of documents or a subpoena for the production of documents as part of discovery in a civil case, Georgia procedure permits an objection in lieu of filing a motion to quash. See generally O.C.G.A. §§ 9-11-34(c)(1); 9-11-45(a)(2).

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8. Other elements

None.

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C. Waiver or limits to testimony

1. Is the privilege waivable?

Under settled Georgia law, the privilege belongs to the reporter. See, e.g., In re Paul, 270 Ga. 680, 686 (1999) ("The reporter's privilege belongs to the person engaged in the gathering and dissemination of news."). The privilege can be waived by a reporter, but Georgia law is generally hostile to claims of unintentional waiver. See, e.g., Kennestone Hosp. v. Hopson, 273 Ga. 145 (2000).

Publication of "part of the information gathered does not waive the privilege as to all of the information gathered on the same subject matter because it 'would chill the free flow of information to the public.'" In Re Morris Communications Co., 258 Ga. App. 154, 155) (2002) (quoting In re 9-11-2Paul, 270 Ga. App. at 686).  Bateman v. Summit Logistics Servs., 2013 U.S. Dist. LEXIS 50692 (M.D. Ga. 2013) (same).

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2. Elements of waiver

a. Disclosure of confidential source's name

No case law.

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b. Disclosure of non-confidential source's name

No case law.

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c. Partial disclosure of information

Publication of "part of the information gathered does not waive the privilege as to all of the information gathered on the same subject matter because it 'would chill the free flow of information to the public.’” In re Paul, 270 Ga. 680, 686 (1999).

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d. Other elements

None.

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3. Agreement to partially testify act as waiver?

No Georgia court has addressed the specific issue of whether an agreement to testify as to a limited issue would be deemed a waiver of the privilege generally. However, Georgia law is generally hostile to arguments asserting waiver. See, e.g., Kennestone Hosp. v. Hopson, 273 Ga. 145 (2000). Moreover, publication of "part of the information gathered does not waive the privilege as to all of the information gathered on the same subject matter because it 'would chill the free flow of information to the public.'" In re Paul, 270 Ga. 680, 686 (1999).

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VII. What constitutes compliance?

A. Newspaper articles

Georgia law does not recognize newspapers as self-authenticating, but parties to litigation in almost all cases stipulate to their authenticity. Failure to stipulate without a good faith basis to dispute authenticity is potentially sanctionable. The Georgia Court of Appeals has ruled that a reporter can be compelled to testify at a criminal trial to authenticate articles, provided the subpoena does not seek testimony about substantive, confidential, or unpublished information or about the content of the articles. See generally In re Morris Communications, 258 Ga. App. 154 (2002).

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B. Broadcast materials

Georgia law does not recognize news broadcasts as self-authenticating, but parties to litigation in almost all cases stipulate to their authenticity. Failure to stipulate without a good faith basis to dispute authenticity is potentially sanctionable.

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C. Testimony vs. affidavits

Under Georgia law, parties can agree to accept an affidavit or stipulation in lieu of live testimony.

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D. Non-compliance remedies

If a non-party reporter invokes the privilege but is nevertheless ordered to testify, the reporter is entitled to bring a direct appeal from that order. See, e.g., In re Paul, 270 Ga. 680, 683 (1999) ("[W]e hold that non-parties engaged in news gathering may file a direct appeal of an order denying them a statutory reporter's privilege under the collateral order exception to the final judgment rule."). The filing of the notice of appeal generally stays the trial court from imposing any punishment to compel compliance with its order. See generally O.C.G.A. §§ 5-6-46; 5-6-13(a).

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1. Civil contempt

If an order compelling testimony from a non-party reporter were upheld on direct appeal (an event that has never occurred since enactment of the privilege), a Georgia trial court would be authorized to fashion a penalty intended to force compliance with its order. Under circumstances of civil contempt, the Georgia Court of Appeals has held that statutory restrictions on contempt powers found at O.C.G.A. § 15-7-4 (fine of no more than $1,000 and/or 20 days in jail) do not apply. Grantham v. Universal Tax Systems, 217 Ga. App. 676, 678 (1995); Mathis v. Corrugated Gear and Sprocket, Inc., 263 Ga. 419, 421-22 (1993). However, as with all contempt citations, "courts should limit their orders to the least possible exercise of power required." In re Siemon, 264 Ga. 641, 641 (1994).

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a. Fines

If an order compelling testimony from a non-party reporter were upheld on direct appeal (an event that has never occurred since enactment of the privilege), a Georgia trial court would be authorized to consider imposing fines in order to force compliance with its order. The Georgia Court of Appeals has held that statutory restrictions on contempt powers found at O.C.G.A. § 15-7-4 (fine of no more than $1,000 and/or 20 days in jail) do not to apply in the civil contempt context. Grantham v. Universal Tax Systems, 217 Ga. App. 676, 678 (1995); Mathis v. Corrugated Gear and Sprocket, Inc., 263 Ga. 419, 421-22 (1993).  However, as with all contempt citations, "courts should limit their orders to the least possible exercise of power required." In re Siemon, 264 Ga. 641, 641 (1994).

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b. Jail

If an order compelling testimony from a non-party reporter were upheld on direct appeal (an event that has never occurred since enactment of the privilege), a Georgia trial court would be authorized to consider ordering a reporter jailed in order to force compliance with its order. The Georgia Court of Appeals has held that statutory restrictions on contempt powers found at O.C.G.A. § 15-7-4 (fine of no more than $1,000 and/or 20 days in jail) do not to apply in the civil contempt context. Grantham v. Universal Tax Systems, 217 Ga. App. 676, 678 (1995); Mathis v. Corrugated Gear and Sprocket, Inc., 263 Ga. 419, 421-22 (1993).  However, as with all contempt citations, "courts should limit their orders to the least possible exercise of power required." In re Siemon, 264 Ga. 641, 641 (1994).

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2. Criminal contempt

Since enactment of Georgia's statutory privilege, an order compelling testimony from a non-party reporter has never been upheld on appeal. Accordingly, there are no recent examples of a reporter being held in criminal contempt for continuing to refuse to testify after appeal. In instances of criminal contempt, Georgia courts are authorized by statute to impose a sentence of a fine of no more than $1,000 and/or incarceration of no more than 20 days in jail. O.C.G.A. § 15-7-4. Prior to the enactment of the privilege, a reporter was given a probated sentence requiring that the reporter perform one hundred hours of community service. Vaughn v. State, 259 Ga. 325 (1989).

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3. Other remedies

None.

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VIII. Appealing

A. Timing

1. Interlocutory appeals

A denial of a motion to quash can be appealed directly by a non-party reporter, without having to wait until a reporter is held in contempt for failing to comply with the subpoena. See, e.g., In re Paul, 270 Ga. 680, 686 (1999) ("[W]e hold that non-parties engaged in news gathering may file a direct appeal of an order denying them a statutory reporter's privilege under the collateral order exception to the final judgment rule.").

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2. Expedited appeals

The Georgia appellate courts will consider motions to expedite an appeal. However, in most circumstances, such a motion should not be necessary, because the filing of the notice of appeal itself stays the trial court from pursuing a contempt citation or imposing any punishment to compel compliance with its order. See generally O.C.G.A. §§ 5-6-46; 5-6-13(a).

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B. Procedure

1. To whom is the appeal made?

Georgia has two levels of appellate courts. The Georgia Court of Appeals is the intermediate appellate court, and the Supreme Court is Georgia's highest court.

Whether the Supreme Court or the Court of Appeals is the proper court to hear a direct appeal from an order denying protection under the reporter's privilege "depends on the nature of the underlying action." See, e.g., In re Paul, 270 Ga. 680, 683 n.10 (1999).

For appeals from Municipal Courts, Magistrate Courts and Probate Courts, which have very limited jurisdictions, appeals are first to Georgia's primary trial court, termed the Superior Court.

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2. Stays pending appeal

If a non-party reporter invokes the privilege but is nevertheless ordered to testify, the reporter is entitled to bring a direct appeal from that order. See, e.g., In re Paul, 270 Ga. 680, 683 (1999) ("[W]e hold that non-parties engaged in news gathering may file a direct appeal of an order denying them a statutory reporter's privilege under the collateral order exception to the final judgment rule."). The filing of the notice of appeal stays the trial court from imposing any punishment to compel compliance with its order. See generally O.C.G.A. §§ 5-6-46; 5-6-13(a). The Georgia Supreme Court, in fact, recognized a right of automatic appeal to avoid the problems caused in the absence of a stay. See In re Paul, 270 Ga. at 683 ("The public interest in a free press would be irreparably harmed if review of the order compelling disclosure had to await a jury verdict in the murder case. Either the reporter would have already revealed the information or been imprisoned for failing to obey the disclosure order.").

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3. Nature of appeal

The appeal is a direct, interlocutory appeal. In re Paul, 270 Ga. 680, 683 (1999) ("[W]e hold that non-parties engaged in news gathering may file a direct appeal of an order denying them a statutory reporter's privilege under the collateral order exception to the final judgment rule.").

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4. Standard of review

With respect to the legal application of the privilege, the standard of review is de novo.

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5. Addressing mootness questions

Georgia courts have not addressed the mootness issue in the context of a reporter's privilege case, but they do generally recognize jurisdiction over issues that are "capable of repetition but evading review."

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6. Relief

Georgia's appellate courts are authorized to reverse an order compelling testimony, dissolve contempt citations, or take any other action needed to vindicate the privilege. See, e.g., In re Paul, 270 Ga. 680, 683 (1999) ("[W]e hold that the reporter's privilege protects Paul from disclosing the confidential source and undisclosed information that the state seeks in its motion to compel. Judgment reversed."); Atlanta Journal-Constitution v. Jewell, 251 Ga. App. 808, 813, 555 S.E.2d 175, 29 Med. L. Rep. 2537 (2001) (reversing contempt citation), cert. denied, 2002 Ga. Lexis 103 (2002), cert. denied, 537 U.S. 814 (2002).

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IX. Other issues

A. Newsroom searches

The Privacy Protection Act (42 U.S.C. 2000aa) has been effective in preventing newsroom searches in Georgia.

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B. Separation orders

Because Georgia's reporter's privilege has effectively precluded the use of reporters as witnesses, there is no statutory or case law addressing separation or sequestration orders when reporters are called as witnesses in trials that they are covering. However, it is well-established under Georgia law that a trial court has discretion to lift or modify the rule of sequestration with respect to witnesses. Accordingly, consistent with the reporter's privilege, trial courts should exercise that discretion to modify separation orders.

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C. Third-party subpoenas

Under Georgia law, third parties receiving a notice for production of documents or a subpoena for production of documents have an opportunity to object. See, e.g., O.C.G.A. §§ 9-11-34(c)(1); 9-11-45(a)(2). Credit card companies, telephone companies and internet service providers, thus, can object to such subpoenas where they are issued in an effort to identify a client news organization's confidential sources or other privileged information. However, Georgia law does not provide the news media with automatic notice of such subpoenas, so cooperation from organizations providing services to the news media is essential to protect news gatherers' rights.

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D. The source's rights and interests

Georgia law does not recognize a cause of action for a reporter's breach of an agreement with a source in the absence of evidence that the resulting publication was false. See generally Raskin v. Swann, 216 Ga. App. 478 (1995).

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