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Idaho

Reporters Privilege Compendium

DEBORA K. KRISTENSEN
dkk@givenspursley.com
GIVENS PURSLEY LLP
601 W. Bannock Street
Boise, Idaho 83702
Tel: (208) 388-1200
Fax: (208) 388-1300
www.givenspursley.com

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I. Introduction: History & Background

Idaho does not have a shield statute and has very few reported decisions considering the application of the reporter’s privilege. Attempts to invoke the protections of the reporter’s privilege have been based on constitutional and common law grounds and Idaho courts have developed a very unsettled relationship with the reporter’s privilege. In the earliest consideration of the privilege following the U.S. Supreme Court's decision in Branzburg v. Hayes, 408 U.S. 665 (1972), the Idaho Supreme Court rejected the privilege, stating that no such privilege had been recognized by the U.S. Supreme Court in Branzburg. Caldero v. Tribune Publishing Co., 98 Idaho 288, 562 P.2d 791 (1977). Some years later, the Idaho Supreme Court expressly disavowed its prior rejection of the privilege and held that such a privilege did exist, in certain circumstances, based in part upon the federal constitution, in part upon the Idaho constitution and in part upon common law. In re Wright, 108 Idaho 418, 700 P.2d 40 (1985). In its most recent examination of the privilege, the Idaho Supreme Court has again indicated a hostility toward the privilege and strictly limited the ruling in Wright, and indicated that future consideration of the privilege will turn heavily on the facts and require a strong showing of a potential ‘chilling effect’ in order for the privilege to be recognized. State v. Salsbury, 129 Idaho 307, 924 P.2d 208 (1996).

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II. Authority for and source of the right

A. Shield law statute

Idaho does not have a shield statute and there have been no attempts to obtain legislative approval of such a statute in recent decades.

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B. State constitutional provision

There is no express shield law type language in the Idaho Constitution. However, the Idaho Constitution has been relied upon in the most significant Idaho decision recognizing a limited reporter’s privilege. In In re Wright, 108 Idaho 418, 700 P.2d 40 (1985), three of the four justices in the majority agreed that Art. 1, § 9 of the Idaho Constitution provides a basis for the reporter’s privilege. Art. 1, § 9 is the “free speech/free press” provision of the state constitution. Even so, the discussion of the state constitution's support for the privilege has been cryptic and primarily is premised upon its similarity to the language of the First Amendment in the federal constitution.

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C. Federal constitutional provision

Idaho initially rejected, and later recognized, a reporter's privilege based on the First Amendment. In Caldero v. Tribune Publishing Co., 98 Idaho 288, 562 P.2d 791 (1977), the Idaho Supreme Court announced that its reading of Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972) was that “no newsman's privilege against disclosure of confidential sources founded on the First Amendment exists in an absolute or qualified version.” Caldero, 98 Idaho at 294, 565 P.2d at 797. In Caldero, the Idaho Supreme Court refused to recognize a privilege that would protect a reporter from disclosing confidential sources in a libel suit brought against the reporter and his newspaper by the subject of a story.

However, the absolutist position taken by the Caldero court was first softened and then somewhat repudiated by later, differently configured, panels of the Idaho Supreme Court. Three years later, in Sierra Life Ins. Co. v. Magic Valley Newspapers, Inc., 101 Idaho 795, 623 P.2d 103 (1980), the court stated that the Caldero holding still had validity in cases in which the unpublished or confidential information was sought from a media defendant that was a defendant in the lawsuit. Sierra Life, 101 Idaho at 800, 623 P.2d at 108. However, the court also instructed that some sort of judicial scrutiny of the attempted discovery was nonetheless required--beginning with answering the question of whether the subject of the discovery (in Caldero and in Sierra Life, the identity of unnamed sources) was relevant to the case. Sierra Life, 101 Idaho at 801, 623 P.2d at 109. In doing so, the Sierra Life court encouraged judicial scrutiny of the nature of the request, in order to weigh the interest of the press in maintaining the secrecy of the identity of confidential sources, but couched its ruling in the terms of a discovery “relevancy” requirement. The decision reads as though the court recognized the importance of the press interests, but was unwilling to overrule Caldero.

In 1983, the court again considered a reporter's privilege case, in which it again refused to apply the reporter's privilege to protect a reporter under contempt orders from a trial court for refusal to identify the identities of confidential sources and related unpublished information in a child custody/habeas corpus proceeding. Marks v. Vehlow, 105 Idaho 560, 671 P.2d 473 (1983).

In Marks, the court was preoccupied with the facts of the case, which involved a reporter's refusal to answer questions about the location of a child abducted by a parent in a custody dispute. In such a setting, the court ruled that the press interests were outweighed by the interests in ensuring the safety of the child and maintaining the sanctity of the writ of habeas corpus. In doing so, the court said that the relevancy and materiality considerations set out in Sierra Life still came into play, but the court also went further in endorsing a federal constitution based rationale for a reporter's privilege than it had done in the past, and said that it was in agreement with a statement in a federal circuit case that “[c]ompelling a reporter to disclose the identity of a source may significantly interfere with his newsgathering ability.” Marks, 105 Idaho at 568, 671 P.2d 473, 481.

Two years later, the court had a less factually troublesome case in which to consider the reporter's privilege. In In re Wright, 108 Idaho 418, 700 P.2d 40 (1985), a reporter was subpoenaed in a criminal case to testify about the identity of a confidential source interviewed in the course of writing an article about marijuana growers. The prosecution sought the reporter's testimony in order to obtain corroboration testimony against a defendant marijuana grower who had been charged based on the testimony of an accomplice. Under Idaho law, such corroboration testimony is a required element of the prosecution's burden of proof. In Wright, the Idaho Supreme Court again analyzed the potpourri of opinions in the Branzburg case, as it had done in Caldero. However, this time the court concluded that Branzburg did provide some First Amendment protection to news gathering and that the balancing test proposed by Justice Stewart in his Branzburg dissent was an appropriate starting point. Wright, 108 Idaho 418, 421, 700 P.2d 40, 43. The case was remanded to the trial court for scrutiny of the applicability of the privilege under Justice Stewart's Branzburg balancing test. Id., 108 Idaho at 423, 700 P.2d at 45. Importantly, the Wright court abandoned the attempt in earlier decisions to try to explain away the questionable holding in Caldero: “[to] the extent that Caldero holds that under no circumstances is there a qualified newsperson's privilege in Idaho which is protected by the First Amendment of the U.S. Constitution, we decline to follow it as precedent.” Wright, 108 Idaho at 422, 700 P.2d at 44.

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D. Other sources

A concurring opinion in the In re Wright decision emphasized the common law in concluding that a limited reporter's privilege exists in Idaho. Justice Bistline concluded that the issue presented in Wright could be decided on non-constitutional grounds, by studying the justification for evidentiary privileges in the common law and recognizing that such historical justifications also supported recognition of a reporter's privilege in contemporary society because of the critical importance of the press in maintaining an informed citizenry. Wright, 108 Idaho at 424-428, 700 P.2d at 50-54.

Additionally, although not a source of support for the privilege, special heed should be paid in Idaho to the limitations upon the scope of discovery found in the discovery rules. The Idaho decisions have given special emphasis to such limitations primarily, or so it would appear, to avoid the draconian holding in Cardoza, as a means of limiting the discovery directed at reporters, without having to invoke the reporter's privilege.

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III. Scope of protection

A. Generally

The reporter’s privilege has received uneven and often hostile treatment from the Idaho appellate courts. A precise identification of the scope of protection is, therefore, somewhat of a challenge.

In the Wright case, the Branzburg balancing test was adopted to apply to a reporter who had been subpoenaed to testify as a third-party witness in a criminal case as to the identity of confidential sources used in preparing a news story. The majority decision in Wright also discussed the various circumstances in which a reporter might be called upon to provide testimony, without expressly stating that any one circumstance absolutely allowed compelled testimony, or absolutely called for application of the privilege to protect against compelled testimony. Rather, the Wright court focused upon the individual, case-specific, application of the Branzburg test. In doing so, however, the Wright court said that the test “may be applied in both a criminal and a civil context,” thereby leaving room to argue that the reporter's privilege recognized in the Wright case is not limited to the criminal case, third-party, types of proceedings involved in that case. Wright, 108 Idaho at 422-423, 700 P.2d at 44-45.

However, consistent with the prior shifting sands of the Idaho Supreme Court’s handling of the privilege, the only reported decision dealing with the privilege since Wright appears to be intended to partially shut the door the Wright court had tried to open. In State v. Salsbury, 129 Idaho 307, 924 P.2d 208 (1996), the Idaho Supreme Court refused to allow the reporter's privilege sought by a television station to protect against the compelled production of aired and unaired footage of the scene of a fatal automobile accident. The videotape was sought by the prosecutor in a criminal case brought against a reporter from a local newspaper, who had been arrested and charged with resisting and obstructing a police officer when the reporter refused to leave the scene of the accident after being ordered to do so by police on the scene.

In Salsbury, an entirely different membership of the court from that which had considered the Wright case, again took up the application of the reporter's privilege. The court held that the reporter's privilege did not apply to the case because the videotape sought by the prosecutor did not involve a “confidential source nor any form of confidential information.” Salsbury, 129 Idaho at 312-313, 924 P.2d at 213-214. The Salsbury court nonetheless went through the exercise of evaluating the facts under the Branzburg test, and concluded that the trial judge had correctly concluded that compelled disclosure of the videotape would have little, if any, “chilling” effect on the press and that the interest of the press must give way to the prosecutor's right to disclosure of the information. Id.

The dissent in Salsbury contended that the Branzburg test should be applied in the case and had not been satisfied, emphasizing that the prosecutor had admitted that he had not attempted to contact any of the numerous other witnesses at the scene to determine if they could provide an alternative source for the information the prosecutor hoped to obtain from the videotape. Salsbury, 129 Idaho at 313, 924 P.2d at 214.

Since the Salsbury decision was rendered, all of the justices have gone off of the court. Therefore, it remains a guessing game to anticipate the next ruling of the Idaho Supreme Court on the reporter’s privilege. Because Idaho does not have a shield law, each case that comes to the Idaho appeal courts (which include the Idaho Supreme Court and an intermediate Court of Appeals) takes on heightened importance.

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B. Absolute or qualified privilege

To the extent that the reporter's privilege has been recognized and applied in Idaho, it is a qualified privilege.

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C. Type of case

1. Civil

Two of the reported Idaho decisions (Caldero and Sierra Life) involved civil cases. However, both were civil cases in which the reporter was a defendant. Both cases found that no reporter's privilege existed, but each decision also emphasized the fact that the discovery was directed at proof needed by the plaintiff in order to prosecute the plaintiff's case. And, at least in the case of Caldero, the precedential value is questionable, because of the disavowal of the Caldero decision in the Wright case.

Additionally, because of the repeated emphasis of the Idaho courts on a case-by-case balancing test, civil cases have the potential for coming out more favorably on balance because of the lesser “compelling and overriding interest” in the information ordinarily found in a civil case as compared to a criminal case, where a defendant's liberty interest is often at stake. The decision in Wright also made special mention of the fact that the balancing test might well be differently resolved in a civil setting, as opposed to a criminal case. Wright, 108 Idaho at 422, 700 P.2d at 44.

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2. Criminal

There is no direct indication in the Idaho case law that an effort to compel testimony or other disclosure of information from a reporter will be treated differently in a criminal case than in a civil case. In the Wright case, which stemmed from a criminal prosecution, the Idaho Supreme Court emphasized that the adoption of the Branzburg test “will not adversely affect a criminal or civil trial or even a grand jury process.” Wright, 108 Idaho at 423, 700 P.2d at 45. However, in the most recent decision of the court in Salsbury, the court refused to apply the reporter's privilege in a misdemeanor criminal case, even though the facts indicated that there were obvious alternative sources, other than the television station's videotape, for the information sought by the prosecutor.

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3. Grand jury

None of the Idaho decisions has considered the assertion of a reporter’s privilege in a grand jury context. However, as noted above, the Wright court specifically stated that the analysis of the privilege should be the same regardless of the case setting.

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D. Information and/or identity of source

Although the Idaho decisions create somewhat of a moving target, it is apparent that most of the decisions have focused, in large part, upon whether the fact pattern involves a confidential source or information. In Caldero, Sierra Life, Marks and Wright, the court was faced with circumstances in which a reporter had been asked to reveal the identity and/or substance of confidential, or at least unpublished, sources and information. Caldero, Sierra Life and Marks refused to recognize a privilege that would protect against the disclosure of a confidential source or information. However, the Wright decision clearly holds that upon those types of facts, the privilege can be invoked and it is up to the trial court to apply the Branzburg balancing test and determine whether the privilege carries the day or not.

Notably, the Wright court went further in its decision and discussed the application of the privilege in other contexts as well, although in doing so it created a debate as to whether the court had created a more overarching privilege or simply indulged in crafting wishful dicta. The Salsbury court apparently concluded the latter, as it took pains to limit the holding in Wright to its specific facts, which did involve confidential and unpublished information.

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E. Confidential and/or nonconfidential information

See discussion in regard to paragraph III, D above.

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F. Published and/or non-published material

See discussion in regard to paragraph III, D above.

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G. Reporter's personal observations

The Salsbury case involved a videotape made at a post-accident scene at which a newspaper reporter was arrested for resisting and obstructing a police officer, after he refused to leave the scene of an automobile accident. The trial court, and the Idaho Supreme Court, were obviously hostile to the suggestion in that case that a reporter should have any rights greater than any other citizen in trying to resist providing testimony in a judicial proceeding.

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H. Media as a party

In both the Caldero and Sierra Life decisions, the reporter was a defendant in a civil lawsuit. That fact appears to have influenced the decisions of the Idaho Supreme Court in which it was ruled that there was no reporter's privilege. Similarly, it caused the court in the Sierra Life case to emphasize the traditional scope of discovery analysis as a means of weighing the respective interests of the parties, in the absence of a reporter's privilege. The decisions seem to indicate that the balancing test will be weighed more heavily in favor of disclosure in cases in which the media entity, or reporter, is a party.

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I. Defamation actions

See discussion in paragraph III, H above. In defamation actions, substantive and negative consequences may result from a decision by a reporter or media entity to stand on principle and refuse to disclose sources or information, even if the privilege is determined to be unavailable or, after balancing, determined to give way to a greater interest served by disclosure. In Sierra Life, the trial court entered default against the media defendants on all liability issues--including those of falsity, malice and causation on which the plaintiff had the burden of proof – leaving only the issue of the amount of damages for trial. The default was entered as a sanction for the media defendants' refusal to answer discovery seeking the identity of confidential sources consulted in the preparation of newspaper articles about the plaintiff insurance company.

On appeal, the Idaho Supreme Court reversed and remanded with instructions for the trial court to consider more carefully the arguments of the media defendants that the identity of the sources was irrelevant because the articles were truthful and because the confidential sources had not provided any information actually used in the news stories. The court held that a dispute over discovery into confidential sources should not, by itself, preclude the trial court from considering an otherwise dispositive motion that did not depend upon the discovery of the confidential sources:

"Finally we consider the newspaper’s contention of error on the part of the trial court in tabling the newspaper's motion for summary judgment. If it is determined that there is no triable issue of fact as to any issue upon which the newspaper as a matter of law would be entitled to prevail, and such is an issue the proof of which is essential to Sierra's case, the motion should be granted even though factual dispute on some other issue might otherwise prevent the entry of judgment."

Sierra Life, 101 Idaho at 801, 623 P.2d at 109.

Significantly, the Sierra Life court stopped short of holding that the trial court's entry of default against the media defendants was improper regardless of the pending dispositive motion based on truth. Instead, the decision generally endorsed the concept that the trial court has discretion to impose sanctions for discovery abuse, which can include the imposition of a default judgment in some settings. Sierra Life, 101 Idaho at 799-801, 623 P.2d at 107-109.

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IV. Who is covered

The Idaho decisions do not attempt to define “reporter” or come up with any other particular definition of the person or entity eligible to invoke the reporter’s privilege.

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A. Statutory and case law definitions

1. Traditional news gatherers

Because the Idaho decisions have involved traditional journalists, engaged in reporting for newspapers or television, it is clear that the reporter’s privilege – to whatever extent it exists under Idaho law – applies to the activities of traditional news gatherers.

In Jacobsen v. Doe, 2012 WL 2946753 (Idaho Dist. Ct. July 10, 2012), a state trial court judge rejected the argument that Idaho’s reporter’s privilege applied to information disclosing the identities, email addresses and IP addresses of bloggers.  The court held that the individual who administered and facilitated the Blog at issue – and was the subject of the subpoena – was not “acting as a reporter who was gathering newsworthy information at the time the statements were made, but instead acted as a facilitator or administrator of the Blog.”  Thus, the reporter’s privilege did not apply.

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a. Reporter

The Idaho cases do not attempt to define “reporter.”

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b. Editor

The Idaho cases do not attempt to define “editor.”

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c. News

The Idaho cases do not attempt to define “news.”

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d. Photo journalist

The Idaho cases do not define “photojournalist.” However, the Salsbury case involved television videotape and the decision makes no distinction between a photojournalist (or, videographer) and a press reporter.

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e. News organization/medium

The Idaho cases do not attempt to define the news organization or news media eligible to claim the privilege. However, the Caldero court, even though rejecting adoption of a reporter's privilege, defined the “press” in expansive terms in its discussion of the value of the First Amendment. In stating that obtaining the "truth" is critically important in our society, the court said that “[t]he only reliable source of that truth is a ‘press’ (which is to say everyone – pamphleteers, nonconformists, undergrounders) which is free to publish that truth without government censorship.” Caldero, 98 Idaho at 298, 562 P.2d at 801.

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2. Others, including non-traditional news gatherers

No Idaho cases.

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B. Whose privilege is it?

The Idaho cases do not attempt to identify “ownership” of the privilege; however, the cases consider instances in which it has been invoked by the reporter and/or the reporter's employer. Thus, the cases indicate that the privilege can properly be invoked by reporters and their employers and imply that the privilege “belongs” to them. In the instance of other testimonial privileges, to which the reporter's privilege has sometimes been compared, the privilege sometimes belongs to the ostensible “source,” such as with the attorney-client privilege.

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V. Procedures for issuing and contesting subpoenas

A. What subpoena server must do

There are no peculiar requirements for the service of subpoenas upon reporters or other similar witnesses; they will be treated the same as all other individuals. Compliance with the pertinent court rules, both as to nature and form of the subpoena and as to the service of the subpoena (including witness fees) is required. These requirements vary slightly if the witness is also a party to the lawsuit. See Idaho Rule of Civil Procedure 45; Idaho Criminal Rule 17.

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1. Service of subpoena, time

There are no restrictions upon the time for service of the subpoena for a witness to appear in court, but Idaho Rule of Civil Procedure 45(c) provides that a subpoena compelling a person to produce or allow inspection of documents must be given thirty (30) days to comply. Idaho Rule of Civil Procedure 45(d) further provides that a witness subject to a subpoena may bring a motion to quash if the subpoena “fails to allow time for compliance.”

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2. Deposit of security

Idaho Rule of Civil Procedure 45(b)(1) requires a person serving a subpoena to also tender the fees for 1 days’ attendance and the mileage allowed by law.  Rule 45(h) provides that “witness fees and expenses must be in the amounts provided for under Rule 54(d)(1).” Idaho Rule of Civil Procedure 54(d)(1)(C) provides that witnesses are entitled to $20 per day plus their travel expenses, calculated at $.30 per mile, one way, from the place of residence. Idaho Rule of Civil Procedure 45(b)(2)(C) provides that “[w]hen the subpoena is issued by the Attorney General or any prosecuting attorney or on behalf of the State or any of its officers or agencies” fees and mileage need not be tendered.

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3. Filing of affidavit

The server must return the subpoena with an affidavit of service stating the date and manner of service and names of persons served, unless he or she is an officer authorized by law to serve process. See Idaho Rule of Civil Procedure 45(b)(3).

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4. Judicial approval

No prior judicial approval is required. The clerk of the court may issue a subpoena, in blank, to a party requesting it or an attorney licenses in Idaho may issue and sign a subpoena. See Idaho Rule of Civil Procedure 45(a); Idaho Criminal Rule 17(a).

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5. Service of police or other administrative subpoenas

There is no special treatment of police or other administrative subpoenas under Idaho state court rules. However, the United States Attorney for the District of Idaho generally follows Department of Justice guidelines on issuance of subpoenas upon media witnesses.

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B. How to Quash

1. Contact other party first

Because of the unstable footing of the reporter's privilege in Idaho resulting from its uneven treatment in Idaho appellate decisions, it is generally recommended that the party issuing the subpoena be contacted prior to filing of a motion to quash. Often, the party serving the subpoena is unaware of possible limitations upon the party's ability to compel the testimony of a media witness. As a result, after “educating” the opposing party, it is sometimes possible to convince the opposing party to withdraw the subpoena, or to narrow the scope of the subpoena. Such contact with the other party is not required by statute or the court rules, or the case law, but is often the most effective means of obtaining a result that might not be possible to obtain from the court. Indeed, to the extent that members of the media receive subpoenas, this appears to be the manner in which most are handled – possibly explaining the limited number of reported decisions in the area.

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2. Filing an objection or a notice of intent

There is no requirement that an “objection” or “notice of intent” be filed.

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3. File a motion to quash

The motion to quash is the only certain means of seeking protection against a subpoena. See Idaho Rule of Civil Procedure 45(d); Idaho Criminal Rule 17(b). Some parties will wait until the time of the compelled appearance, whether it be in a deposition or in a court appearance, and assert the privilege in response to questions posed at that time. Doing so, however, at least in Idaho state court, runs the risk (but not necessarily the certainty) of having the court rule that the privilege has been waived.

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a. Which court?

Ordinarily, the motion to quash is filed in the same court as that in which the case is filed, or in the same court from which the subpoena has issued, if different.

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b. Motion to compel

The best practice is to raise the issue by way of motion to quash, rather than wait for the opposing party to seek to compel the testimony after an initial refusal to do so, or a non-appearance. By raising the issue in the context of a motion to quash, the risk of being found in contempt and suffering the resulting monetary or imprisonment penalties prior to a judicial ruling on the substantive issues is greatly reduced.

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c. Timing

As a general rule, the time periods for motion practice, including motions to quash, are governed by the general motion provisions of the particular rules of the court. In Idaho state court, the pertinent rule is I.R.C.P. 7(b)(3). Idaho’s state court rules can be accessed from the Idaho State Judiciary website. See https://isc.idaho.gov/main/idaho-court-rules. In federal court for the District of Idaho, the general motion provisions of the Federal Rules of Civil Procedure apply, as well as the local rules of the district, which can be found online at the federal court website for the District of Idaho. See http://www.id.uscourts.gov. Similarly, the rules should be consulted for provisions dealing with the setting of hearings. In Idaho state court and federal court, hearing dates are generally arranged by contacting the calendar clerk assigned to work with the particular judge assigned to the case.

However, in many instances, the receipt of the subpoena in relation to the time set for the appearance of the reporter or other media witness does not allow sufficient time to meet the general time periods of the particular court rules. In those circumstances, a motion to shorten time should be filed along with the motion to quash. As a practical matter, the motion and its supporting documents should be filed sufficiently in advance of the hearing, if at all possible, so as to allow the court a reasonable period of time to consider the documents prior to the hearing. See, e.g., Idaho Rule of Civil Procedure 45(d)(1) (“The court, upon timely motion” may quash or modify a subpoena).

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d. Language

There is no particular language required for the motion to quash. It should, however, clearly set out the relief sought by the motion, particularly if the motion seeks to preclude some portion of the requested testimony, or requested documents, rather than the entirety of what may be sought in the subpoena or subpoena duces tecum. See generally Rule 45 of the Idaho Rules of Civil Procedure and Rule 17 of the Idaho Criminal Rules.

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e. Additional material

There are no prohibitions upon the nature of material that might be attached to support the motion to quash, other than the general requirement that it be admissible for purposes of consideration by the court. Idaho federal court rules limit the length of briefs submitted in support of motions; however, there is no express limitation upon appendices and the like. (Local practice generally dictates that the appendices or other supporting material be filed as attachments to an affidavit, rather than simply appended to a motion or brief.) The concerns are more practical than rule-driven--i.e., the busy judge may be more annoyed than grateful for the book length appendix dumped on his or her desk a few days before a hearing on a motion to quash.

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4. In camera review

One can ask for an in-camera review as part of the court’s consideration of the motion to quash, or the court might independently require such a review.

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a. Necessity

There is no requirement that a court conduct an in-camera review.

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There is no special treatment of the motion to quash in a reporter's privilege case as it may pertain to an automatic stay or other similar request.

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c. Consequences of refusing

A refusal to permit an in-camera review potentially exposes the reporter or other media witness to contempt orders or other sanctions. In Idaho, the inherent right of the trial court to enforce its orders through contempt orders has been expressly recognized by the Idaho Supreme Court in many cases, including a case in which a reporter was fined and jailed for refusal to disclose a confidential source. Marks v. Vehlow, 105 Idaho 560, 671 P.2d 473 (1983).

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5. Briefing schedule

All briefing is subject to specific judge’s scheduling.

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6. Amicus briefs

Amici appearances in Idaho appellate courts are governed by Rule 8 of the Idaho Appellate Rules, by which the appeal court may allow an amicus in its direction. There is no similar rule in the trial court rules, but amici appearances are nonetheless allowed upon motion in some instances. Ordinarily, the court--whether at the trial level or at the appellate level--is asked to grant express permission to file an amicus brief. In that request, the potential amicus should make out a substantive case for the purpose of an amicus brief, the nature of the position to be taken by the amicus in the case and the time period sought for the purpose of completing and filing such a brief.

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VI. Substantive law on contesting subpoenas

Because Idaho does not have a shield law, the substantive law governing efforts to contest a subpoena is drawn entirely from the Idaho decisions discussed earlier in this outline and from those federal cases that discuss the privilege as it may exist based upon the First Amendment. Therefore, the argument of the reporter seeking to invoke the privilege should pay careful heed to the nuances of the Idaho cases and highlight the parallel facts supporting the privilege and the distinguishing facts that make the case inapposite to the Idaho decisions that have held no privilege exists. Similarly, the party seeking to thwart an attempt to quash the subpoena should emphasize the similarities with the Idaho cases ruling against application of the privilege and should also try to discount any claim that that the reporter's activities in the future might be chilled as a result of forcing his or her testimony in the current case.

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A. Burden, standard of proof

The Idaho cases do not discuss the burden of proof. However, as a practical matter and by analogy to other testimonial privileges, the reporter will bear the burden in the first instance of convincing the court that the reporter's privilege is properly considered upon the particular facts, as a matter of law. At that point, the burden should presumably shift to the party seeking to compel the reporter's testimony to prove that the elements of the Branzburg test adopted by the Idaho Supreme Court in the Wright case support overcoming the presumed protection afforded by the privilege against compelled disclosure. In other words, the party seeking the testimony or information ought to carry the burden of proof on establishing that the reporter has information clearly relevant to a specific probable violation of law; that the information cannot be obtained by alternative means less destructive of First Amendment rights and that there is an overriding and compelling interest to be served by requiring the reporter to provide such information. See In re Wright, 108 Idaho 418, 421, 700 P.2d 40, 43 (1985).

Nonetheless, as a practical matter, the more proof the reporter can offer to demonstrate that the test cannot be satisfied, the more likely that the subpoena will be quashed, regardless of where the court assigns the burden.

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B. Elements

The elements of the reporter's privilege in Idaho are entirely those that are described in the appellate decisions discussed in this outline. Although there is no specific enumeration of the elements in any of the cases, they include at a minimum:

1.Proof that the reporter was engaged in newsgathering activities in connection with the information sought by the party seeking his or her testimony;

2.Proof the information sought is of such a nature as to justify consideration of the reporter's privilege. In other words, because the Idaho cases have seemed to focus upon the fact of confidential sources or information as a necessary predicate for the invocation of the reporter's privilege, if those facts exist, they should be emphasized. If not, the reporter needs to demonstrate, presumably drawing upon the holding in the Wright case, that the privilege is still available.

3.Proof (or failure of proof, depending upon where the court assigns the burden) that the qualified privilege is not overcome by competing interests.

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1. Relevance of material to case at bar

If the material sought by the subpoena is not relevant to the case, then the first challenge from the reporter ought to be based upon the limitations imposed upon non-relevant discovery under the applicable court rules. This is the approach developed and endorsed by the Idaho Supreme Court in the Sierra Life case.

If the reporter’s privilege is deemed by the court to apply to the facts of the case, then the relevance of the material is also significant under the various prongs of the Branzburg test. The first prong of that test requires that the information sought be “clearly relevant” to a specific probable violation of the law.

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2. Material unavailable from other sources

Under the Branzburg test adopted by the Wright court, the reporter’s testimony cannot be compelled unless “the information sought cannot be obtained by alternative means less destructive of First Amendment rights.” Wright, 108 Idaho at 421, 700 P.2d at 43. However, this element of the test received scant attention in the Salsbury case, the most recent privilege case decided in Idaho. Although the Salsbury court based its rejection of the privilege upon the fact that there were no confidential sources or information involved in the case, the court also discussed the application of the Branzburg test to the facts of the case. The court concurred with the trial court that disclosure would be required even if the three-pronged test were applied. This was despite the fact, as the dissent pointed out, that there had been numerous bystanders and onlookers at the site of the accident, none of whom had been interviewed by the prosecutor, and “the onlookers and bystanders may well have satisfied the very need for which the prosecutor said he needed the video tape.” Salsbury, 129 Idaho at 312-313, 924 P.2d at 213-214.

In Ko v. Zilog, U.S. District Court, Idaho, Case. No. 94-0123-2-MHW (1997), U.S. Magistrate Judge Mikel Williams granted, in part, a motion to quash a subpoena served on reporter Chris Farnsworth and his employer Boise Weekly.  In the fall of 1996, Mr. Farnsworth began researching and writing an article for the Boise Weekly concerning the allegations of chemical exposures and employee illness at Zilog’s Nampa, Idaho facility.  Mr. Farnsworth took many notes and taped various witness interviews during his research and investigation and obtained and relied upon various documents from the pending civil case Ko v. Zilog, Case No. 94-0123-S-MHW, under the explicit promise of confidentiality to his source.  (The documents were subject to a Court entered protective/confidentiality order.)  After Mr. Farnsworth’s article was published, counsel for Zilog served him with a subpoena seeking all documents, interview notes, tape recordings, photographs, diaries, calendars and drafts related in any way to the Article, including those not published.  Mr. Farnsworth filed a motion to quash, relying on both the First Amendment and Idaho Constitution arguing, inter alia, that disclosure of information obtained during the newsgathering process may be compelled only where a showing is made that the requested material is: (1) unavailable despite exhaustion of all reasonable alternative sources; (2) noncumulative; and (3) clearly relevant to an important issue in the case.  (Citing Shoen v. Shoen, 48 F.3d 412, 416 (9th Cir. 1995).  Judge Williams agreed and granted Mr. Farnsworth motion to quash to the extent that Zilog’s counsel had not yet exhausted all reasonable alternative sources.  (see Ko v. Zilog, Case No. 94-0123-2-MHW, Docket No. 979, Order (dated March 26, 1997) (unpublished).  Thereafter, counsel for Zilog took over 20 depositions in an effort to discover the source of Mr. Farnsworth article.

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a. How exhaustive must search be?

There is no indication in the Idaho cases as to how “exhaustive” a search must be conducted in order to demonstrate the absence of alternative sources for the information sought.   But, at least one trial court has granted the media’s motion to quash given a showing that the party seeking such information had not searched other, readily available sources of the same information.  See Ko v. Zilog, Case No. 94-0123-2-MHW, Docket No. 979, Order (dated March 26, 1997).

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

If the Branzburg test is literally applied, the subpoenaing party should be required to prove that the information sought cannot be obtained by alternative means less destructive of First Amendment rights. Ordinarily, one expects that such proof would come in the form of “I looked but could not find” evidence, even though this particular prong of the test does not specifically call for a “search.” However, the Idaho Supreme Court in Salsbury simply disregarded the fact that the subpoenaing party in that case--the county prosecutor--had made no search for an alternative source for the information. Id.  But see Ko v. Zilog, supra.

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c. Source is an eyewitness to a crime

There is no specific discussion of the application of the privilege to situations in which the source is an eyewitness to a crime. However, the videotape sought in the Salsbury case was sought because the prosecutor alleged that it would contain footage of the actions of the defendant newspaper reporter that led to his being arrested for obstruction of a police officer.

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3. Balancing of interests

The Branzburg balancing test adopted by the Idaho Supreme Court in the Wright case calls for a balancing of interests in determining whether the reporter's privilege holds sway.

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4. Subpoena not overbroad or unduly burdensome

The court is not required to make a sua sponte analysis of the subpoena to determine whether it is overly broad or burdensome. The reporter should certainly analyze the subpoena and challenge it as overly broad or burdensome, under the pertinent discovery standards. As described previously, the Idaho Supreme Court has focused upon scope of discovery standards as providing protection against disclosure of confidential or unpublished information in lieu of a constitutionally based privilege. See Sierra Life Ins. Co. v. Magic Valley Newspapers, Inc., 101 Idaho 795, 623 P.2d 103 (1980).

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5. Threat to human life

There is no requirement that the court weight whether the information sought involves a threat to human life. Presumably, however, such a threat would have heightened significance in the balancing prescribed under the Branzburg test.

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6. Material is not cumulative

If the information sought is merely cumulative, that fact should be emphasized as an indication that the party seeking the information cannot satisfy the second prong of the Branzburg test, i.e., that the party can obtain the information from alternative means and therefore it is unnecessary to compel the testimony of the media witness. In re Wright, 108 Idaho at 121, 700 P.2d at 43.

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7. Civil/criminal rules of procedure

Idaho civil and criminal court rules contemplate the filing of a motion to quash or modify a subpoena contended to be unreasonable or oppressive.

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8. Other elements

Not applicable.

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C. Waiver or limits to testimony

The Idaho cases do not describe any peculiar application of the general “waiver” rule as it pertains to the reporter's privilege. It can be expected that Idaho courts would consider waiver arguments in the same manner as with other testimonial privileges. In such settings, if a witness testifies to matters that would otherwise be subject to the privilege, the privilege may be waived for all purposes, or some more limited purpose. Such a waiver is expressly required by the Idaho Rules of Evidence, which provide that a testimonial privilege is waived if “the person voluntarily discloses or consents to disclosure of any significant part of the matter or communication” I.R.E. 510.

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1. Is the privilege waivable?

There are no cases involving the media.

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2. Elements of waiver

a. Disclosure of confidential source's name

There are no cases involving the media.

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b. Disclosure of non-confidential source's name

There are no cases involving the media.

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c. Partial disclosure of information

There are no cases involving the media.

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d. Other elements

None.

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3. Agreement to partially testify act as waiver?

It is unlikely that, in the absence of a shield statute, an Idaho court will ever rule that the reporter's privilege protects against a requirement that a media witness confirm that a particular story was printed, or a particular broadcast was made. Therefore, it is similarly unlikely that such testimony would be construed to waive the privilege as to such matters that the court might contemporaneously rule are covered by the privilege.

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VII. What constitutes compliance?

As a general matter, compliance is determined by reference to the scope of the subpoena, as that scope may or may not be adjusted by the ruling of a court upon a motion to quash or other assertion of privilege. The nature of the compliance may also be determined by agreement between the parties that a production, or testimony, of information less than the actual scope of the subpoena, or subpoena duces tecum, will satisfy the opposing party.

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A. Newspaper articles

In Idaho, the recipient of a subpoena will often attempt to seek agreement that testimony limited to confirmation of the fact of publication of a newspaper story, and confirmation of the accuracy of the information contained in the story, will suffice to comply with the subpoena. Such an agreement avoids the need to testify concerning confidential or unpublished information. Based upon the nature of the privilege as recognized by Idaho courts, it is unlikely that an Idaho court will ever apply the reporter's privilege to protect a media witness from having to appear in response to a subpoena, or from having to, at a minimum, confirm the fact of the publication of a news story and the accuracy of the information contained in the story.

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B. Broadcast materials

The same general rule applies to broadcasts, in that the media witness will almost certainly be required to confirm the fact of the broadcast and the accuracy of the information contained in the broadcast. Ordinarily, the media witness will try to obtain an agreement that will allow for such testimony but will eliminate the requirement that the reporter bring outtakes, notes and other types of non-aired information.

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C. Testimony vs. affidavits

If the information sought is needed by the opposing party for motion practice in the particular proceeding, an agreement can sometimes be reached by which the opposing party will agree to use of an affidavit in lieu of testimony. In the ordinary case, that will not be acceptable if the subpoena is for trial or other courtroom testimony.

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D. Non-compliance remedies

In Idaho, trial courts have broad contempt powers to exercise in their discretion to enforce judicial orders. The use of such powers in enforcing orders compelling testimony from reporters has been considered and implicitly approved by the Idaho Supreme Court. See Marks v. Vehlow, 105 Idaho 560, 671 P2d 473 (1983). Such powers include the use of civil fines and imprisonment. Idaho has had statutory provisions, since its territorial days, outlining the types of acts that are properly deemed contempts of the authority of the court. See Title 7, Chapter 6, Idaho Code. However, although such statutory provisions are referenced in various of the Idaho decisions addressing the contempt power, Idaho courts have also drawn upon constitutional powers and common-law contempt powers in justifying the exercise of such power in particular cases. Nonetheless, the statutory provisions should be consulted for possible particular application to the facts in any contempt order circumstance.

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1. Civil contempt

a. Fines

There is no statutory or rule-made cap upon fines imposed as part of a civil contempt order. The amount and duration of such fines are reviewable, however, as with other aspects of a contempt order, by the appellate courts. Ordinarily, in Idaho, such a review is sought by the filing of a Writ of Review with the Idaho Supreme Court, under its original jurisdiction powers. A comprehensive summary of the use of the Writ of Review can be found in the chapter on extraordinary proceedings contained in the Idaho Appellate Handbook published by the Idaho Law Foundation.

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b. Jail

There is no statutory or rule-made limit upon jail sentences imposed as part of a contempt order. However, the specifics of such sentences are reviewable by the appellate courts. Ordinarily, in Idaho, such a review is sought by the filing of a Writ of Review with the Idaho Supreme Court, under its original jurisdiction powers. A comprehensive summary of the use of the Writ of Review can be found in the chapter on extraordinary proceedings contained in the Idaho Appellate Handbook published by the Idaho Law Foundation.

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2. Criminal contempt

No known cases have resulted in criminal contempt convictions for disobedience of a subpoena.

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3. Other remedies

The court also has the power to impose sanctions against the party that has refused to provide testimony or information. These sanctions, which are left to the discretion of the court under the court rules, can range from striking a particular defense to striking all defenses and entering judgment against the party on all liability issues. Such sanctions were imposed by the trial court in the Sierra Life case, but were reversed by the Idaho Supreme Court on grounds unrelated to the issue of whether the trial court had the power to impose such sanctions. See Sierra Life Ins. Co. v. Magic Valley Newspapers, Inc., 101 Idaho 795, 623 P.2d 103 (1980).

In the ordinary case, Idaho courts have said that there is no appeal of right from a contempt order. It is not included in the listing of appealable judgments and orders contained in Rule 11 of the Idaho Appellate Rules. Similarly, contempt orders are deemed “final and conclusive” by statute. Idaho Code § 7-616. However, the Idaho Supreme Court has ruled that it has plenary power to review contempt orders and although it has not gone so far as to say it will absolutely not consider a traditional “appeal” of a contempt order, it has said on several occasions that the writ of review is the most appropriate means by which to seek appellate review of a contempt order. See, e.g., Marks v. Vehlow, 105 Idaho 560, 671 P.2d 473 (1983).

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VIII. Appealing

In the ordinary case, Idaho courts have said that there is no appeal of right from a contempt order. It is not included in the listing of appealable judgments and orders contained in Rule 11 of the Idaho Appellate Rules. Similarly, contempt orders are deemed “final and conclusive” by statute. Idaho Code § 7-616. However, the Idaho Supreme Court has ruled that it has plenary power to review contempt orders and although it has not gone so far as to say it will absolutely not consider a traditional “appeal” of a contempt order, it has said on several occasions that the writ of review is the most appropriate means by which to seek appellate review of a contempt order. See, e.g., Marks v. Vehlow, 105 Idaho 560, 671 P.2d 473 (1983).

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A. Timing

Appeal from a final judgment must be filed with 42 days. A petition for a writ of review is subject to different rules and statutes. No specific time period is described for the filing of special writs, such as a writ of review, which are generally governed by provisions of Rule 43 of the Idaho Appellate Rules.

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1. Interlocutory appeals

If a course other than a writ of review is pursued for some extraordinary reason, such as an interlocutory appeal, then the motion for permission to appeal an interlocutory contempt order or denial of a motion to quash must be filed within 14 days from entry of the order being appealed. Permission is initially sought from the trial court; in the event the trial court denies the motion, a motion for permissive appeal may still be filed with the Idaho Supreme Court. As a practical matter, however, it is unlikely the Idaho Supreme Court will grant a motion for permissive appeal if the same has already been denied by the trial court. Ultimately, the appeal court must still decide on its own to grant the permissive appeal, even where the motion has been granted by the trial court.

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2. Expedited appeals

There is no particular procedure for expedited appeals, although expedited attention to the matter may be requested by motion. Ordinarily, the most expeditious manner of obtaining review of a contempt order is to seek immediate scrutiny by the Idaho Supreme Court in the form of an extraordinary writ of review, under the Idaho Supreme Court's original jurisdiction. However, in a writ of review the primary question is whether or not the trial court exceeded its jurisdiction in issuing the contempt order, so careful attention should be paid to the nature of the challenge to be made to the contempt order. See Marks v. Vehlow, 105 Idaho at 564, 671 P.2d at 477; Idaho Code § 7-208 (2018).

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B. Procedure

1. To whom is the appeal made?

Appeals from rulings of a magistrate judge are made to the next trial court level, the district court. Appeals from the district court are made to the Idaho Supreme Court. The Idaho Supreme Court has the option of assigning the appeal to the Idaho Court of Appeals. Decisions of the Idaho Court of Appeals may be submitted to the Idaho Supreme Court for further appellate review, but such appeals are only accepted in the discretion of the Idaho Supreme Court. If the contempt order is challenged through a Writ of Review, then the petition seeking the writ is filed directly with the Idaho Supreme Court, under that court's original jurisdiction.

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2. Stays pending appeal

A stay may be sought either from the district court, acting in an appeal from magistrate court, or from the Idaho Supreme Court. Such stays are granted in the discretion of the court. In some instances, the issuance of the stay may be contingent upon the posting of a bond or other affirmative action from the party seeking the stay. See, Rule 13 of the Idaho Appellate Rules. A temporary stay may be obtained ex parte, provided that a demonstration of immediate and irreparable injury, loss or damage is established in a verified petition seeking the temporary stay. See, Rule 13.1 of the Idaho Appellate Rules.

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3. Nature of appeal

An appeal taken in the ordinary course, under the usual appeal procedure, will proceed as with any other appeal. There will be a time for settling the record, an order from the appeal court setting out a briefing schedule and then the case may or may not be set for argument, with a decision to follow. In the use of extraordinary writs, the process is generally more truncated and speedier, subject to the particular rules of the appeal court dealing with the use of its original jurisdiction. See, I.A.R. 43.

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4. Standard of review

In almost all instances, the appeal court will review the decision to use the contempt power as a review of a matter of law, in which the appeal court exercises complete review. However, because the issuance of a contempt order is considered in Idaho to be within the inherent power of the court to enforce its general orders, the particulars of such orders, such as the amount of a fine or the nature of imprisonment, are reviewed under an abuse of discretion.

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5. Addressing mootness questions

Idaho courts have not considered whether an appeal of a contempt sanction may be pursued under the “capable of repetition but evading review” doctrine, after the relevant trial or grand jury session may have concluded.

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6. Relief

The reviewing court should be asked to vacate or dissolve the contempt order, or such lesser relief as may be particularly warranted in the facts of the case. Because most contempt orders are reviewed under the Idaho Supreme Court's original jurisdiction, which encompasses use of the so-called extraordinary writs, special attention should also be given to whether other of the extraordinary writs--such as mandamus or prohibition--are appropriate for the circumstances.

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IX. Other issues

A. Newsroom searches

The federal Privacy Protection Act (42 U.S.C. 2000aa) has not been implicated in any reported Idaho decisions. Given the hostility of the Idaho Supreme Court to the reporter's privilege generally, and its specific endorsement of the ruling in Stanford Daily v. Zurcher, 436 U.S. 547 (1978) (the case which gave rise to the passage of the Privacy Protection Act) in the Caldero case, it is unlikely that there would be any protection against newsroom searches in Idaho but for the protections afforded under the Privacy Protection Act. There are no similar state statutes.

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B. Separation orders

There are no known judicial decisions in Idaho considering the issue of whether a reporter covering a trial can be forced to remain outside of the courtroom because the reporter is on a witness list. A party is entitled under Idaho court rules to ask the court to exclude all witnesses from the courtroom. If a reporter is on such a witness list, and a party seeks his or her exclusion, then the reporter should ask the court to modify the exclusion order so as to allow the reporter to remain in the courtroom. The argument on such a request presumably would focus upon the direct chilling effect caused by the exclusion.

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C. Third-party subpoenas

There are no known Idaho cases addressing the issue of whether a reporter has the right to intervene in efforts to use third-parties, such as telephone companies, to obtain information that might disclose the identify of a confidential source. Because the reporter’s privilege in Idaho appears to be personal to the media witness, rather than the source, it is unlikely that Idaho courts would rule that the reporter's privilege extends in such a manner as would prohibit discovery from other parties, or that would prohibit use of such information in the judicial proceeding.

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D. The source's rights and interests

There are no known Idaho cases in which a confidential source has attempted to intervene in a proceeding involving attempts to compel testimony concerning the confidential source. Depending upon the nature of the promise made to the source (e.g., was the promise of confidentiality an unconditional promise, or one in which the promisor is released from the promise if ordered to testify), the source may have a claim for a breach of contract. There has been no reported breach of contract/confidential source cases in Idaho.

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