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Indiana

Reporters Privilege Compendium

Daniel Byron
Margaret Christensen
Jessica Laurin
Bingham Greenebaum Doll LLP
10 West Market Street
2700 Market Tower
Indianapolis, IN 46204-4900
(317) 686-5202

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I. Introduction: History & Background

Indiana has a strong shield law that provides an absolute and unqualified privilege protecting reporters from revealing sources of information obtained in the course of newsgathering, whether or not that information was published or broadcast. See Ind. Code §§ 34-46-4-1, 34-46-4-2. It is important to note, however, that this privilege applies only to state related matters. It does not apply to federal matters such as federal grand jury investigations, or cases in federal court involving federal issues. See In re Indiana Newspapers Inc., 963 N.E.2d 534, 544 (Ind. Ct. App. 2012) (“Federal law has no statutory equivalent to various states’ shield laws.”). The shield law privilege belongs to the newsgatherer and is absolute. Indiana courts have not yet resolved whether the shield law protects the information obtained from a source or whether the law protects nonconfidential information. In re Stearns (Vollmer v. Zulka), 489 N.E.2d 146, 149 (Ind. App. 1986).

As for non-statutory privileges, the Indiana Supreme Court has applied a balancing test in instances where reporters attempt to raw materials such as video or other broadcast interviews (although the Court did not express an opinion on whether a reporter’s notes or other records are privileged). In re WTHR-TV (State v. Cline), 693 N.E.2d 1, 4, 10, n. 8 (Ind. 1998). The standard as announced in WTHR-TV is that the First Amendment does not require a special showing of need and relevance beyond those imposed under normal discovery procedures when information in a criminal case is demanded from a reporter. Thus, you need to look to the Indiana Rules of Trial Procedure are instructive. In re Stearns (Vollmer v. Zulka), 489 N.E.2d 146, 151 (Ind. App. 1986), similarly balances First Amendment interests against the need for information in the civil context.

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II. Authority for and source of the right

A. Shield law statute

Indiana’s shield law provides an absolute privilege regarding state matters and reads as follows:

§ 34-46-4-1 Applicability of chapter:

Sec. 1. This chapter applies to the following persons:

(1) any person connected with, or any person who has been connected with or employed by:

(A) a newspaper or other periodical issued at regular intervals and having a general circulation; or

(B) a recognized press association or wire service;

as a bona fide owner, editorial or reportorial employee, who receives or has received income from legitimate gathering, writing, editing and interpretation of news; and

(2) any person connected with a licensed radio or television station as owner, official, or as an editorial or reportorial employee who receives or has received income from legitimate gathering, writing, editing, interpreting, announcing or broadcasting of news.

§34-46-4-2 Privilege against disclosure of source of information:

Sec. 2. A person described in section 1 of this chapter shall not be compelled to disclose in any legal proceedings or elsewhere the source of any information procured or obtained in the course of the person's employment or representation of a newspaper, periodical, press association, radio station, television station, or wire service, whether:

(1) published or not published:

(A) in the newspaper or periodical; or

(B) by the press association or wire service; or

(2) broadcast or not broadcast by the radio station or television station;

by which the person is employed.

Ind. Code §§ 34-46-4-1, 34-46-4-2. Indiana’s shield law has been around since 1941. The law was originally codified as Indiana Code § 34-3-5-1. It was recodified into the two separate sections quoted above in 1998. The last significant change to the shield law was in 1973, when the legislature broadened its description of persons to whom the privilege applies.

In discussing the legislature’s reasons for protecting the press through a shield law, the Indiana Court of Appeals has said that "the legislature, in balancing the conflicting interests of the alleged defamed public figure and the press, simply concluded that the journalist’s privilege should prevail." Jamerson v. Anderson Newspapers, Inc., 469 N.E.2d 1243, 1247 (Ind. App. 1984).

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B. State constitutional provision

Article I, section 9 of the Indiana Constitution provides: “No law shall be passed, restraining the free interchange of thought and opinion, or restricting the right to speak, write, or print, freely, on any subject whatever: but for the abuse of that right, every person shall be responsible.”

The Indiana Constitution does not contain an express shield law provision, nor has one been read into any constitutional provision by a state court. In In re WTHR-TV (State v. Cline), the Supreme Court of Indiana specifically declined to recognize a newsgatherer’s privilege under Article I, section 9 in the context of a criminal case, at least on the facts presented therein. 693 N.E.2d at 15–16.

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C. Federal constitutional provision

In In re WTHR-TV (State v. Cline), decided in 1998, the Supreme Court of Indiana declined to recognize a privilege under the First Amendment of the U.S. Constitution in the context of a criminal case. 693 N.E.2d at 10–16. In the WTHR-TV case, the defendant accused of murder had been interviewed by a reporter while being held in jail. The media reporter was ordered to produce the videotapes of the interview, including outtakes. The court rejected the reporter’s contention that Branzburg v. Hayes, the last major U.S. Supreme Court case on the topic of the reporter’s privilege, required courts to recognize a constitutional privilege. Id. at 11–12. The court also dismissed all of the media’s arguments in favor of such a privilege, including reasoning based on the chilling effect subpoenas have on the media and the enhanced burden imposed by subpoenas to the media. Id. at 13–15; see also WTHR-TV (State v. Milam), 690 N.E. 2d 1174, 1176 (Ind. 1998) (balancing discovery considerations under the trial rules).

WTHR-TV (State v. Milam) was decided on the same day as WTHR-TV (State v. Cline). In WTHR-TV (State v. Milam), the defendant accused of murder filed a discovery request for “all news footage, aired and unaired” regarding the murder. The discovery request was held to lack particularity and any showing of possible materiality because defendant failed to explain what the media party had or might have had that was specifically relevant to the defense or preparation for trial. Id.

Both WTHR cases involved criminal matters. In an earlier case decided by the Indiana Court of Appeals, it can arguably be said that a qualified First Amendment privilege was recognized, in the context of a civil case. See In re Stearns (Vollmer v. Zulka), 489 N.E.2d 146, 150–51 (Ind. Ct. App. 1986). There, the court held that a journalist’s photographs could not be compelled by subpoena unless (1) they were material and relevant to the action, (2) they were critical to a fair determination of the cause, and (3) the subpoenaing party had exhausted all other sources for the same information. Id. at 151.

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D. Other sources

There are no other sources of the reporter's privilege in Indiana.

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III. Scope of protection

A. Generally

Indiana's shield law provides absolute protection of the identity of a newsgatherer’s confidential source. However, the shield law does not explicitly protect the information obtained from confidential or nonconfidential sources. The shield law is the only source of privilege to have been applied in Indiana criminal cases and may be the only source in civil cases as well. Thus, under current case law, those materials that are not covered by the shield law are subject to disclosure if subpoenaed.

In sum, the reporter’s privilege in Indiana protects the identities of sources but does not protect underlying information. Ind. Code § 34-46-4-2.

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B. Absolute or qualified privilege

Indiana’s shield law provides absolute protection for the identity of a newsgatherer’s confidential source, Indiana Code § 34-46-4-2, with regard to state matters or lawsuits.

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C. Type of case

1. Civil

Indiana’s shield law applies in “any legal proceedings or elsewhere.” Ind. Code § 34-46-4-2.

The Indiana Supreme Court has rejected the press’s argument that a separate newsgatherer’s privilege exists, under the free press provisions of the U.S. and state constitutions, for reporters subpoenaed in criminal matters. In re WTHR-TV (State v. Cline), 693 N.E.2d 1 (Ind. 1998). It is unclear, after In re WTHR-TV, whether a Court of Appeals opinion recognizing a qualified First Amendment privilege in civil cases is still valid. See In re Stearns (Vollmer v. Zulka), 489 N.E.2d 146 (Ind. App. 1986). If it is, such a privilege might cover those materials that are not protected under the shield law. To overcome the qualified privilege, the subpoenaing party in a civil case would need to prove: (1) the materials sought are material and relevant to the action, (2) they are critical to a fair determination of the cause, and (3) the subpoenaing party had exhausted all other sources for obtaining the same information. Id. at 151.

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2. Criminal

Indiana’s shield law applies in “any legal proceedings or elsewhere.” Ind. Code § 34-46-4-2. It is important to note, however, that the shield law applies only to state matters.  Nonetheless, in a conflict of law, the shield law may still apply where state law governs the merits of the case. See Fed. R. Evid. 501(“state law governs privilege regarding a claim or defense for which state law provides the rules of decision”). See also Executive Management Servs. Inc. v. Fifth Third Bank, 309 F.R.D. 455 (S.D. Ind. 2015).

There is no other source of privilege in a criminal case. The Indiana Supreme Court has rejected the notion that a qualified privilege exists under either the U.S. or state constitution in criminal cases. See In re WTHR-TV (State v. Cline), 693 N.E.2d 1 (Ind. 1998).

Thus, under current case law, it is likely that only the identity of a reporter’s confidential source is protected in a criminal case involving state matters.

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3. Grand jury

Indiana’s shield law applies in “any legal proceedings or elsewhere.” Ind. Code § 34-46-4-2. As stated above, the shield law applies to state matters only. Such limitation means that the shield law does not apply when a reporter is called before a federal grand jury.

There is no other source of privilege in a criminal case. The Indiana Supreme Court has rejected application of a qualified privilege exists under either the U.S. or state constitution in criminal cases. See In re WTHR-TV (State v. Cline), 693 N.E.2d 1 (Ind. 1998).

Thus, under current case law, only the identity of a reporter’s confidential source is protected in a grand jury in state court.

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D. Information and/or identity of source

Indiana’s shield law specifically protects the identity of a reporter’s source. Ind. Code § 34-46-4-2. It does not protect the information itself. Such information might be protected under a separate First Amendment privilege in civil cases, if such privilege is still considered viable after the Supreme Court of Indiana rejected such a privilege on the facts presented in In re WTHR-TV (State v. Cline), 693 N.E.2d 1 (Ind. 1998). See In re Stearns (Vollmer v. Zulka), 489 N.E.2d 146 (Ind. App. 1986).

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E. Confidential and/or nonconfidential information

While the identities of sources are privileged under Indiana Code Section 34-46-4-2, it has yet to be decided whether the statute covers the information obtained from the sources, whether that information is confidential or nonconfidential. In re Stearns (Vollmer v. Zulka), 489 N.E.2d 146, 149 (Ind. App. 1986).

 Indiana’s shield law refers to a newsgatherer’s “source” without reference to confidentiality or nonconfidentiality, but the Indiana Court of Appeals recognized that the shield law protects against confidential sources of information. Id.

Nonconfidential sources are not explicitly addressed by Indiana Code § 34-46-4-2. See Slone v. State, 496 N.E.2d 401, 405 (Ind. 1986) (declining to decide whether the shield law covers nonconfidential source materials). Such materials might be protected under a qualified First Amendment privilege in civil cases, assuming that privilege was not eliminated by the Supreme Court's rejection of a constitutional privilege in criminal cases in In re WTHR-TV, 693 N.E.2d 1 (Ind. 1998). See In re Stearns (Vollmer v. Zulka), 489 N.E.2d 146 (Ind. App. 1986).

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F. Published and/or non-published material

The Indiana shield law protects “the source of any information ... whether (1) published or not published . . . or (2) broadcast or not broadcast.” Ind. Code § 34-46-4-2.

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G. Reporter's personal observations

There is no statutory or case law addressing this issue.

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H. Media as a party

The Indiana shield law does not differentiate between cases where the media is a party and where it is not. The shield law applies “in any legal proceedings or elsewhere.” Ind. Code § 34-46-4-2. In Jamerson v. Anderson Newspapers, Inc., the court rejected a libel plaintiff’s argument that the shield law violated Article I, section 12 of the Indiana Constitution, which guarantees a remedy for injury to reputation. 469 N.E.2d 1243, 1249–50 (Ind. App. 1984). The court concluded that the constitutional provision did not prevent the legislature from modifying or restricting the right to sue for libel, by allowing the shield law to prevent some discovery in libel cases. Id.

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I. Defamation actions

The Indiana shield law does not make any special provisions for libel actions. The shield law applies “in any legal proceedings or elsewhere.” Ind. Code § 34-46-4-2. Jamerson v. Anderson Newspapers, Inc., 469 N.E.2d 1243 (Ind. App. 1984), is the only reported opinion about the shield law in which the media was sued for libel. There, the court rejected the plaintiff’s argument that the shield law violated Article I, section 12 of the Indiana Constitution, which guarantees a remedy for injury to reputation. Id. at 1249–50.

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IV. Who is covered

A. Statutory and case law definitions

1. Traditional news gatherers

a. Reporter

Indiana’s shield law applies to:

(1) any person connected with, or any person who has been connected with or employed by:

(A) a newspaper or other periodical issued at regular intervals and having a general circulation; or

(B) a recognized press association or wire service;

as a bona fide owner, editorial or reportorial employee, who receives or has received income from legitimate gathering, writing, editing and interpretation of news; and

(2) any person connected with a licensed radio or television station as owner, official, or as an editorial or reportorial employee who receives or has received income from legitimate gathering, writing, editing, interpreting, announcing or broadcasting of news.

Ind. Code § 34-46-4-1. The statute does not further define the terms in this section.

The privilege can only be invoked if the person subpoenaed was acting in her capacity as a newsgatherer when she obtained the information sought. See Northside Sanitary Landfill, Inc. v. Bradley, 462 N.E.2d 1321, 1325 (Ind. Ct. App. 1984) (freelancer who gave document to television station with whom she had no employment arrangement was precluded from using the shield law); Shindler v. State, 335 N.E.2d 638, 645 (Ind. Ct. App. 1975) (reporter would have lost protection of the privilege if she had been acting as an agent for the state in investigating a crime).

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b. Editor

Indiana’s shield law applies to:

(1) any person connected with, or any person who has been connected with or employed by:

(A) a newspaper or other periodical issued at regular intervals and having a general circulation; or

(B) a recognized press association or wire service;

as a bona fide owner, editorial or reportorial employee, who receives or has received income from legitimate gathering, writing, editing and interpretation of news; and

(2) any person connected with a licensed radio or television station as owner, official, or as an editorial or reportorial employee who receives or has received income from legitimate gathering, writing, editing, interpreting, announcing or broadcasting of news.

Ind. Code § 34-46-4-1. The statute does not further define the terms in this section.

The privilege can only be invoked if the person subpoenaed was acting in her capacity as a newsgatherer when she obtained the information sought. See Northside Sanitary Landfill, Inc. v. Bradley, 462 N.E.2d 1321, 1325 (Ind. Ct. App. 1984) (freelancer who gave document to television station with whom she had no employment arrangement was precluded from using the shield law); Shindler v. State, 335 N.E.2d 638, 645 (Ind. Ct. App. 1975) (reporter would have lost protection of the privilege if she had been acting as an agent for the state in investigating a crime).

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c. News

The Indiana shield law does not define “news,” nor is the term defined in case law discussing the statute.

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d. Photo journalist

The Indiana shield law does not define “photojournalist,” but a photojournalist would probably be considered a “reportorial employee” under Ind. Code § 34-46-4-1.

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e. News organization/medium

Indiana’s shield law applies to any person connected with newspapers; other periodicals issued at regular intervals and having a general circulation; recognized press associations or wire services; and licensed radio or television stations. Ind. Code § 34-46-4-1.

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2. Others, including non-traditional news gatherers

Indiana's shield law applies to freelancers who have an employment relationship with a particular news medium. Northside Sanitary Landfill, Inc. v. Bradley, 462 N.E.2d 1321, 1324–25 (Ind. Ct. App. 1984). The shield law has not be applied to other non-traditional newsgatherers in reported case law.

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B. Whose privilege is it?

The privilege belongs to the reporter and cannot be claimed by the source. Hestand v. State, 273 N.E.2d 282, 283 (Ind. 1971); Lipps v. State, 258 N.E.2d 622, 626 (Ind. 1970).

The Indiana Court of Appeals recently applied this rule in Matter of Indiana Newspapers. 963 N.E.2d 534, 546 (Ind. Ct. App. 2012).  There, a plaintiff suing for defamation argued that the Indianapolis Star waived its shield law privilege regarding an anonymous commenter’s identity via its Privacy Notice and Terms of Service. Id. at 544.  The Court addressed two arguments regarding the shield law.  First, the plaintiff argued that because the Star’s Privacy Notice warned users that their information could be released, the Star had waived its privilege. Id. The court rejected this argument because the privilege belonged to the Star, and the Star chose to keep the commenter’s identity secret. Id. However, the plaintiff prevailed on his second argument, that a commenter who posts after a news report is published is not a source for the purpose of the shield law because that commenter did not contribute to the reporter’s investigation.

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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 rules for service of subpoenas to the news media. In general, “[s]ervice of a subpoena upon a person named therein shall be made by delivering a copy thereof to such person.” Ind. R. Trial P. 45(C). For general rules on subpoenas, see Ind. R. Trial P. 34 (“Production of documents, electronically stored information, and things and entry upon land for inspection and other purposes”); Ind. R. Trial P. 45 (“Subpoena”); Ind. R. Crim. P. 2 (“Subpoena duces tecum”); Ind. Code § 35-37-5-2 (“Subpoena; issuance; service; proof of service; fees; contempt of court”); Ind. Code § 35-37-5-5 (subpoenas to witnesses out of state); Ind. Code § 35-34-2-5 (grand jury subpoenas). Generally, criminal subpoenas require compliance with the Indiana Rules of Trial Procedure. See Cooper v. State, 714 N.E.2d 689, 690 (Ind. Ct. App. 1999) (holding that the trial rules apply to criminal proceedings so long as they do not conflict with special criminal rules).

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2. Deposit of security

Special Procedures and Defenses Available to a Reporter When Production of Tapes or Documents are Required in State Courts (Subpoena Duces Tecum):

Indiana Rules of Trial Procedure 34 and 45 govern subpoenas duces tecum and other discovery request for documents.

Ind. R. Trial P. 34(C)(3) entitles the subpoenaed nonparty to security in the form of prepayment of damages that are to be incurred and a variety of other alternative securities from the party issuing the subpoena. Examples of alternative securities include “an adequate surety bond or other indemnity conditioned against such damages.” Id.

Ind. R. Trial P. 45(B)(2) allows a court to order payment ”of the reasonable cost of producing the books, papers, documents, or tangible things.” Id.

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3. Filing of affidavit

Upon agreement of the parties to the litigation, an affidavit may be produced by the subpoenaed party in lieu of direct testimony.

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4. Judicial approval

An attorney can issue a subpoena as an officer of the court in most situations or can have the court clerk issue a subpoena. See Ind. R. Trial P. 34, 45(E); Ind. R. Crim. P. 2; Ind. Code § 35-37-5-2; Ind. Code § 35-34-2-5.

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5. Service of police or other administrative subpoenas

Various administrative bodies have the power to issue subpoenas. For instance, in connection with the investigation of a fire, the fire department may issue subpoenas, under Ind. Code §§ 22-14-2-8 and 36-8-17-7.

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B. How to Quash

1. Contact other party first

The law does not require that the subpoenaing party be contacted prior to moving to quash, see Ind. Tr. Rule 45(B), but such contact is generally recommended. Parties may agree to limit or withdraw subpoenas once they are made aware of the contours of the reporter’s privilege or other basis for objection such as lack of following the terms of Ind. Tr. Rule 34(c).

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2. Filing an objection or a notice of intent

Indiana courts do not require that a notice of intent to quash be filed before the motion to quash. A motion to quash must be made “promptly,” Ind. Tr. Rule P. 45(B), and in any event within the time specified for compliance with the subpoena, unless it is a subpoena duces tecum to a nonparty, see Ind. Tr. Rule P. 34(C)(3). To be safe, any motion to quash should be filed within three days of receipt. However, if the subpoena calls for the production of tapes or documents, and if the entity subpoenaed is a non-party, then the provisions of Ind. R. Trial P. 34(C) apply, and the subpoenaed nonparty has thirty days to make a written response and assert a request for security or to offer different terms of compliance.

A motion to quash a subpoena duces tecum in a grand jury proceeding must include a statement of facts and grounds in support of the objection to the subpoena. Ind. Code § 35-34-2-6(a). The court must conduct a hearing on the motion to quash. Id. Also, Ind. Tr. Rule P. 34(C) applies. See Cooper v. State, 714 N.E.2d 689, 690 (Ind. Ct. App. 1999) (holding that the trial rules apply to criminal proceedings so long as they do not conflict with special criminal rules).

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3. File a motion to quash

a. Which court?

The motion to quash should be filed in the same court as the court that is hearing the case at issue.

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b. Motion to compel

The media party need not wait for the subpoenaing party to file a motion to compel before filing a motion to quash. See Ind. R. Tr. P. 45(B) (stating that a motion to quash must be made “promptly . . . at or before the time specified in the subpoena . . . .”).

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c. Timing

A motion to quash must be made “promptly” and in any event within the time specified for compliance with the subpoena, unless it is a subpoena duces tecum to a nonparty, see Ind. R. Tr. P.  34(C)(3). To be safe, any motion to quash should be filed within three days of receipt. However, if the subpoena calls for the production of tapes or documents, and if the entity subpoenaed is a non-party, then the provisions of Ind. R. Tr. P. 34(C) apply, and the subpoenaed nonparty has thirty days to make a written response and assert a request for security or to offer different terms of compliance.

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d. Language

You will need to cite the applicable provisions of Ind. R. Tr. P. 45 and/or Ind. R. Tr. P. 34(C) and explain how these provisions apply to your situation.

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e. Additional material

The Reporters Committee for Freedom of the Press often recommends that a copy of “Agents of Discovery: A Report on the Incidence of Subpoenas Served on the News Media,” its biennial survey of the incidence of news media subpoenas, be attached to a motion to quash based on the reporter's privilege.

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4. In camera review

a. Necessity

The Indiana shield law does not require a court to conduct an in camera review of materials or prior to deciding a motion to quash. See Ind. Code § 34-46-4-2.

In Matter of WTHR-TV (State v. Cline), 693 N.E.2d 1 (Ind. 1998), the court said, with respect to in camera review:

"In camera review to determine materiality or the validity of any objections to production is generally within the trial court's discretion . . . . [M]ateriality need not be shown prior to disclosure where the relevance of the item is self-evident or the precise nature of the information is unknown. However, in that circumstance, the discovery rules' prohibition on fishing expeditions and burdensome requests would effectively be lost if in camera review could be obtained without a showing of at least possible relevance . . . . Accordingly, where materiality is challenged or is unknown, a showing of at least “potential materiality” is generally required to obtain in camera review of disputed items."

Id. at 8 (internal citations omitted); see also WTHR-TV v. Milam, 690 N.E.2d 1174, 1176 (Ind. 1998) (holding that the party moving for discovery must “offer a theory of ‘potential materiality’”).

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There is no statutory or case law on this issue.

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c. Consequences of refusing

There is no case law on this issue, but courts have broad powers to hold people in contempt for failing to obey a court order. See Ind. Code § 34-47-3-1; Ind. Tr. R. 45(F) (giving the court power to hold a person who failed to comply with a subpoena in contempt). In Matter of WTHR-TV (State v. Cline), 693 N.E.2d 1 (Ind. 1998), the media party moved for a stay of the trial court's order for in camera review. The order was stayed pending the appeal. Id. at 5.

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5. Briefing schedule

There are no Indiana rules on this issue. Generally, courts may set briefing schedules. You should also check local rules.

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6. Amicus briefs

Amicus briefs are accepted at the appellate level. For rules relating to amicus participation, see Ind. R. App. P. 16, 41, 43, 44, 46, 53; see also In re Indiana Newspapers Inc., 963 N.E.2d 534, 536 (Ind. Ct. App. 2012) (amicus briefs filed in shield law case).

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VI. Substantive law on contesting subpoenas

A. Burden, standard of proof

Generally, the burden is on the party moving to quash a subpoena for documents to show why the documents should not be produced. Newton v. Yates, 353 N.E.2d 485, 501 (Ind. App. 1976).

It is unclear who has the burden under the First Amendment reporter’s privilege recognized for civil cases in Matter of Stearns (Vollmer v. Zulka), 489 N.E.2d 146 (Ind. App. 1986), although the court cites a Texas case giving the burden to the discovering party.

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B. Elements

To make use of the shield law statute which protects reporters from revealing their sources, a reporter must show that he or she is a person covered under Indiana Code § 34-46-4-1 and that the identity of a news source is being sought. See id. § 34-46-4-2. To be considered a “source,” “one must provide information that is then interpreted by the news organization.” In re Indiana Newspapers, 963 N.E.2d 534, 548 (Ind. Ct. App. 2012). Therefore, an anonymous commenter who left a defamatory comment was not a “source” under the shield law, and so the shield law did not apply. Id. at 547–48.

As for other video or documents, such as interviews of persons relevant to a civil case, the elements that must be shown to overcome the First Amendment reporter's privilege recognized in In re Stearns (Vollmer v. Zulka), 489 N.E.2d 146, 151 (Ind. App. 1986), are: (1) the materials sought are material and relevant to the action, (2) they are critical to a fair determination of the cause, and (3) the subpoenaing party has exhausted all other sources for the same information. Id. However, it is unclear whether this constitutional privilege is still valid in Indiana. See In re WTHR-TV (State v. Cline), 693 N.E.2d 1 (Ind. 1998).

Regarding the discovery of records by a criminal defendant, a three-step test may apply: (1) the requests are particular; (2) the requests are material and relevant; and (3) if the first two requirements are met, the trial court must grant the request unless there is a “paramount interest” in nondisclosure. In re Crisis Connection, Inc., 949 N.E.2d 789, 794 (Ind. 2011).  The Indiana Supreme Court held that this three-step test only applies to the discovery of nonprivileged information. Id.

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1. Relevance of material to case at bar

The material or testimony subpoenaed must be relevant to the case, under normal discovery rules. See WTHR-TV v. Milam, 690 N.E.2d 1174, 1176 (Ind. 1998) (“[D]iscovery rights do not entitle a criminal defendant to commandeer the efforts of third parties as a substitute for independent defense investigation. Nor do the Trial Rules allow the defendant to rummage through the files of third parties, particularly the press, for information whose materiality is only a matter of pure supposition.”); see also In re Wireman, 367 N.E.2d 1368, 1371 (Ind. 1977) (refusing to confront issue of applicability of shield law, because newsperson’s testimony was irrelevant).

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2. Material unavailable from other sources

In In re WTHR-TV (State v. Cline), 693 N.E.2d 1 (Ind. 1998), the court addressed the need for a showing of unavailibity from other sources as it relates to a criminal case when it stated “[w]here a media organization is subpoenaed, the Trial Rules require sensitivity to any possible impediments to press freedom. A showing that the information is unique and likely not available from another source should normally be required.” Id. at 9.

As for civil cases, the subpoenaing party under In Re Stearns (Vollmer v. Zulka), must show that all other sources for this information have been exhausted. 489 N.E.2d 146, 151 (Ind. App. 1986).

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a. How exhaustive must search be?

There is no statutory or case law on this issue.

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

The subpoenaing party, most likely, only needs to assert that the information is unique and not likely available from another source. See In re WTHR-TV (State v. Cline), 693 N.E.2d 1, 9 (Ind. 1998).

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c. Source is an eyewitness to a crime

The Indiana shield law protects a reporter from disclosing the identity of any source. See Ind. Code § 34-46-4-2.

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3. Balancing of interests

The Indiana shield law is absolute and, therefore, does not require a judicial balancing of interests in determining whether to quash a subpoena, if the purpose of the subpoena is to learn the identity of a source. See Ind. Code § 34-46-4-2.

The constitutional newsgatherer’s privilege, arguably still recognized for civil cases pursuant to in In re Stearns (Vollmer v. Zulka), 489 N.E.2d 146 (Ind. App. 1986), involves the balancing of First Amendment considerations against “a paramount public interest in the fair administration of justice.” Id. at 150. The court, faced with a claim of privilege, must consider the following factors: (1) whether the materials sought are material and relevant to the action, (2) whether they are critical to a fair determination of the cause, and (3) whether the subpoenaing party had exhausted all other sources for the same information. Id. at 151. It is unclear, however, whether this constitutional privilege still exists after the Indiana Supreme Court rejected such an approach for criminal cases. See In re WTHR-TV (State v. Cline), 693 N.E.2d 1 (Ind. 1998).

In criminal cases, In re WTHR-TV (State v. Cline), 693 N.E.2d 1 (Ind. 1998) applies and the test is not one of privilege but resolution consistent with Indiana's Trial Rules that pertains to discovery. Id. at 7 (“Resolution of this case, however, turns only on the application of general principles of discovery, particularly for third parties, to the peculiar interests of the newsgathering organization”). More specifically, the WTHR court stated that when a media organization is subpoenaed “a showing that the information is unique and likely not available from another source should normally be required.” Id. at 9.

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4. Subpoena not overbroad or unduly burdensome

A subpoena may be quashed for being overbroad or unduly burdensome. Ind. R. Trial P. 45(B); Ind. R. Crim. P. 2; Ind. Code § 35-37-5-2(c)(1); see also In re WTHR-TV (State v. Cline), 693 N.E.2d 1, 5 (Ind. 1998).

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5. Threat to human life

There is no statutory or case law on this issue.

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6. Material is not cumulative

A subpoena may be quashed for being overbroad or unduly burdensome. Ind. R. Trial P. 45(B); Ind. R. Crim. P. 2; Ind. Code § 35-37-5-2(c)(1); see also In re WTHR-TV (State v. Cline), 693 N.E.2d 1, 5 (Ind. 1998). However, “[i]nformation is not necessarily oppressive or unreasonable because similar evidence can be gleaned from another source.” Hueck v. State, 590 N.E.2d 581, 586 (Ind. App. 1992); see Stone v. State, 536 N.E.2d 534, 537 (Ind. App. 1989) (relevant evidence will not be rejected simply because it is cumulative unless it creates undue prejudice, such as a parade of witnesses offering consistent testimony).

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7. Civil/criminal rules of procedure

A subpoenaed person may ask the court to modify or quash an overbroad or unduly burdensome subpoena. Ind. R. Crim. P. 2; Ind. Code § 35-37-5-2; Ind. R. Trial P. 34, 45(B). A person subpoenaed for the production of documents pursuant to Indiana Trial Procedure Rule 34 may also request a security deposit; propose different terms; or object specifically or generally to the request by written objection within 30 days of receipt of the subpoena. Ind. R. Trial P. 34(C).

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8. Other elements

There are no other elements.

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C. Waiver or limits to testimony

1. Is the privilege waivable?

Indiana courts have recognized that the privilege is waivable. See In re Wireman, 367 N.E.2d 1368, 1371 (Ind. 1977); Northside Sanitary Landfill, Inc. v. Bradley, 462 N.E.2d 1321, 1325 (Ind. App. 1984). In Northside Sanitary Landfill, the court said a credible argument could be made that a reporter waived her privilege by failing to claim it at her deposition. Northside Sanitary Landfill, 462 N.E.2d at 1325. However, that case was decided on grounds other than waiver.

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2. Elements of waiver

There is no statutory or case law on this issue.

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a. Disclosure of confidential source's name

In Matter of Indiana Newspapers, a plaintiff suing for defamation argued that the Indianapolis Star waived its shield law privilege regarding an anonymous commenter’s identity via its Privacy Notice and Terms of Service. 963 N.E.2d 534, 544 (Ind. Ct. App. 2012). The Star’s Privacy Notice warned users that their information could be released. Id. Further, the Star’s Terms of Service stated that the Star could release information regarding commenters’ posts to respond to third party claims. Id. The court rejected the plaintiff’s argument because the privilege belonged to the Star, and the Star chose to keep the commenter’s identity secret. Id.

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b. Disclosure of non-confidential source's name

There is no statutory or case law on this issue.

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c. Partial disclosure of information

There is no statutory or case law on this issue.

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d. Other elements

There are no other elements.

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3. Agreement to partially testify act as waiver?

There is no statutory or case law on this issue.

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VII. What constitutes compliance?

A. Newspaper articles

Newspapers are self-authenticating. Ind. R. Evid. 902.

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B. Broadcast materials

Broadcast materials must be authenticated in court. Methods of authentication are listed in Ind. R. Evid. 901 and include testimony of a witness with knowledge that a matter is what it is claimed to be. Generally, the parties may stipulate as to the authenticity of a tape or document. A party is estopped from denying the authenticity of a document if that party stipulates to their authenticity. LeFlore v. State, 823 N.E.2d 1205, 1211 (Ind. Ct. App. 2005). However, all parties must so consent before such authentication is permitted.

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C. Testimony vs. affidavits

The Indiana Rules of Evidence do not specify whether a sworn affidavit may take the place of in-court testimony to confirm the authenticity of evidence, but such an affidavit is often used when all parties so concur.

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D. Non-compliance remedies

1. Civil contempt

There are no known instances where a reporter has been held in civil contempt, with the proverbial keys to the cell in his own pocket, for disobeying a subpoena. For rules relating to contempt, see Ind. Code Art. 34-47-et seq.

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a. Fines

Fines for civil contempt are not capped. See Moore v. Ferguson, 680 N.E.2d 862, 866–67 (Ind. App. 1997) (holding that the contempt fine was not excessive).

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b. Jail

Jail sentences for civil contempt are not limited so long as they are designed to coerce compliance rather than punish. See Moore v. Ferguson, 680 N.E.2d 862, 865–66 (Ind. App. 1997).

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2. Criminal contempt

There are no known instances where a reporter has been prosecuted for criminal contempt for disobeying a subpoena. For rules relating to contempt, see Ind. Code Art. 34-47-et seq.

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3. Other remedies

Courts generally have discretion to order remedies for contempt, such as default judgments against the media or presumptions of malice in libel cases. See Prime Mortg. USA, Inc. v. Nichols, 885 N.E.2d 628, 650–51 (Ind. Ct. App. 2008).

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VIII. Appealing

A. Timing

1. Interlocutory appeals

Rule 14 of the Indiana Rules of Appellate Procedure governs interlocutory appeals. With respect to timing, the rule provides: “A motion requesting certification of an interlocutory order must be filed in the trial court within thirty (30) days after the date the interlocutory order is noted in the Chronological Case Summary unless the trial court, for good cause, permits a belated motion,” and “[t]he motion requesting that the Court of Appeals accept jurisdiction over an interlocutory appeal shall be conventionally filed within thirty (30) days after the date the trial court’s certification is noted in the Chronological Case Summary.”

A denial of a motion to quash may be appealed. See, e.g., In re Stearns (Vollmer v. Zulka), 489 N.E.2d 146, 147 (Ind. App. 1986).

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2. Expedited appeals

“The Court of Appeals, upon motion by a party and for good cause, may shorten any time period. A motion to shorten time shall be filed within ten (10) days of the filing of either the Notice of Appeal with the Clerk or the motion to the Court of Appeals requesting permission to file an interlocutory appeal.” Ind. R. App. P. 14(G)(2).

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B. Procedure

1. To whom is the appeal made?

The media party must request certification of the discretionary interlocutory order from the trial court. Then, the media must request that the appeals court take jurisdiction over the appeal. Ind. R. App. P. 14(B).

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2. Stays pending appeal

“An interlocutory appeal shall not stay proceedings in the trial court unless the trial court or a judge of the Court of Appeals so orders.” Ind R. App. P. 14(H); see Ind. R. App. P. 39 for rules relating to motions to stay.

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3. Nature of appeal

The appeal may be as of right, Ind. R. App. P. 14(A), or the appeal may be discretionary, Ind. R. App. P. 14(B).

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4. Standard of review

In In re Stearns, the court, in reviewing an interlocutory appeal of a motion to quash a subpoena to a news organization, said: “When reviewing a general judgment this Court will presume the judgment to be based upon findings which are supported by the evidence and we must affirm if the decision of the trial court can be sustained on any legal ground.” In re Stearns (Vollmer v. Zulka), 489 N.E.2d 146, 149 (Ind. Ct. App. 1986).

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5. Addressing mootness questions

Indiana courts have not addressed the mootness issue when the trial or grand jury session for which a reporter was subpoenaed has concluded. Indiana does recognize an exception to the mootness doctrine when an issue is “capable of repetition but evading review.” See, e.g., Ray v. State Election Bd., 422 N.E.2d 714, 716 (Ind. App. 1981).

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6. Relief

A reporter's attorney should ask that the subpoena be quashed under the shield law and/or that any contempt citation be dissolved.

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IX. Other issues

A. Newsroom searches

The federal Privacy Protection Act (42 U.S.C. Section 2000aa), which drastically limits searches of newsrooms, has not been used in Indiana. There are no similar provisions under state law.

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B. Separation orders

In Shindler v. State, 335 N.E.2d 638 (Ind. App. 1975), the court considered a breach of a separation of witnesses order. The trial court had ordered that witnesses not discuss testimony among themselves. One witness remained in the courtroom and wrote newspaper articles about the trial. The defendant argued that because the other witnesses read the news articles, there had been a violation of the order. The court did not decide whether a violation of the order had occurred because it found that any such error was harmless. Id. at 267–68.

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C. Third-party subpoenas

There is no statutory or case law on this issue.

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D. The source's rights and interests

There is no statutory or case law on this issue.

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