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Iowa

Reporters Privilege Compendium

Michael A. Giudicessi and Susan P. Elgin
Faegre Baker Daniels LLP
801 Grand Avenue, 33rd Floor
Des Moines, Iowa 50309-8011
Telephone (515) 248-9000
Facsimile (515) 248-9010
michael.giudicessi@faegrebd.com
www.faegrebd.com

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I. Introduction: History & Background

Iowa has a unified trial court system whereby original jurisdiction for claims in excess of $5,000 rests in the district court. Claims for damages under $5,000 must be brought in small claims court. Iowa Code § 631.1 (2018).  A plaintiff can also proceed on an expedited civil action track, which guarantees a trial within one year of filing, by capping damages at $75,000.  Iowa R. Civ. P. 1.281.  Appeals from final decisions of the district court may be made as a matter of right to the Iowa Supreme Court. The Iowa Supreme Court may refer the case to the Iowa Court of Appeals for appellate review or retain jurisdiction over the appeal. If a case is referred to the Iowa Court of Appeals, the Iowa Supreme Court may choose to review it on application for further review. Appellate review in civil cases generally is on an error of law standard for cases at law and a de novo review for cases in equity.

In Iowa, the judicially created reporter's privilege "protects confidential sources, unpublished information and reporter's notes." Waterloo/Cedar Falls Courier v. Hawkeye Cmty. Coll., 646 N.W.2d 97, 102 (Iowa 2002). The Iowa reporter's privilege is grounded on state and federal constitutional law only; there is not a shield statute or other legislative protection for journalists. The reporter's privilege has been the subject of five Iowa Supreme Court decisions, over the past 25 years, all of them favorable to the press. Because Iowa cases employ a Farber two-step procedure for in camera inspections, Iowa journalists typically do not face an immediate criminal contempt citation.

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II. Authority for and source of the right

Iowa has not adopted a shield law statute. Authority for the reporter's privilege in Iowa is based upon the First Amendment to the United States Constitution and Article I, § 7, of the Iowa Constitution. Winegard v. Oxberger, 258 N.W.2d 847, 3 Med. L. Rptr. 1326 (Iowa 1977). Iowa decisions rely heavily on Branzburg v. Hayes, 408 U.S. 665, 1 Med. L. Rptr. 2617 (1972), Garland v. Torre, 259 F.2d 545, 1 Med. L. Rptr. 2541 (2d Cir. 1958), cert. denied, 358 U.S. 910 (1958), and In re Farber, 78 N.J. 259, 394 A.2d 330, 4 Med. L. Rptr. 1360 (N.J. 1978), cert. denied 439 U.S. 997 (1978).

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A. Shield law statute

Iowa has not adopted a shield law statute. New organizations that would participate in drafting and support for such legislation include the Iowa Freedom of Information Council, the Iowa Newspaper Association, the Iowa Broadcasters Association and the Iowa Broadcast News Association. The lack of significant and concentrated effort toward adoption of a shield statute likely results from the strong protection provided by the court cases although these organizations are mindful that a statutory shield may be needed in light of negative case law in the federal courts.

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B. State constitutional provision

Iowa's reporter's privilege law is based, in part, upon the Iowa Constitution article I, § 7. Winegard, 258 N.W.2d at 852. Article I, § 7, states:

"Every person may speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that right. No law shall be passed to restrain or abridge the liberty of speech, of the press. In all prosecutions or indictments for libel, the truth may be given in evidence to the jury, and if it appears to the jury that the matter charged as libelous was true, and was published with good motives and for justifiable ends, the party shall be acquitted."

Id.

In holding that the reporter's privilege is constitutionally based, the Iowa Supreme Court cited United States Supreme Court cases that recognized that freedom of speech and freedom of the press, as guaranteed by the First Amendment, are fundamental personal rights. Winegard, 258 N.W.2d at 850 (citing Branzburg v. Hayes, 408 U.S. 665, 1 Med. L. Rptr. 2617 (1972) and Schneider v. State of New Jersey, 308 U.S. 147 (1939)). After finding that a reporter's privilege existed, mostly having referenced the United States Constitution, the Iowa Supreme Court cursorily mentioned that their analysis of the federal law was equally applicable to article I, § 7, of the Iowa Constitution. Winegard, 258 N.W.2d at 852. See also Michael A. Giudicessi, Independent State Grounds for Freedom of Speech and the Press, Article 1, Section 7 of the Iowa Constitution, 38 Drake L. Rev. 9, 26-27 (1988). No express shield law provision exists in the Iowa Constitution.

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C. Federal constitutional provision

The law of reporter's privilege in Iowa is based, in large part, upon the rights guaranteed by the First Amendment of the United States Constitution, namely, freedom of speech and freedom of the press. Winegard, 258 N.W.2d at 849-51. In Winegard the Court quoted language from both Branzburg and Schneider approvingly. Id. No Iowa decisions have been filed in the wake of the developments in 2006 in the Judith Miller, Matthew Cooper, Wen Ho Lee and San Francisco Chronicle cases.

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D. Other sources

Rule 1.1701(4)(d)(1)(3) of the Iowa Rules of Civil Procedure provides that a subpoena requiring disclosure of privileged information will be quashed by the court or modified to protect against disclosure of the privileged information. Rule 1.1701(4)(d)(1)(4) provides that an unduly burdensome subpoena will be modified or quashed by the court. Rule 1.1701(4)(a) provides that the attorney responsible for the issuing of a subpoena must take reasonable steps to avoid imposing undue burden or expense on the person subject to the subpoena. Rule 1.504 provides that a party of whom impermissible discovery is sought may seek and for good cause be granted a protective order stopping the burdensome discovery request.

Rule 2.15(2) of the Iowa Rules of Criminal Procedure provides that a subpoena that is unreasonable or oppressive will be dismissed by the court upon motion. Rule 2.14(6)(a)(3) allows the court to regulate discovery and issue protective orders to prohibit compelled disclosure of privileged information.

These court rules often allow a reporter or news organization to avoid filing a motion to quash by simply objecting to the state court subpoena, on privilege grounds, and thereby placing the burden on the person seeking enforcement of the state court subpoena to file a motion to compel.

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III. Scope of protection

The reporter's privilege is a qualified privilege that is presumptively available to persons falling into the protected class of journalists. Bell v. City of Des Moines, 412 N.W.2d 585, 587 (Iowa 1987). The privilege may be subordinated if the requesting party has a substantial need for the information and has exhausted other means of attaining the information. Winegard, 258 N.W.2d at 850 (stating that privilege is qualified and not absolute); Lamberto v. Bown, 326 N.W.2d 305, 308, 8 Med. L. Rptr. 2525 (Iowa 1982) (setting forth the test for rebuttal of the reporter's privilege presumption). The privilege "protects confidential sources, unpublished information, and reporter's notes." Waterloo/Cedar Falls Courier v. Hawkeye Cmty. Coll., 646 N.W.2d 97, 102 (Iowa 2002). A district court ruling held that a freelance journalist was eligible for the privilege as a member of the protected class because he was engaged in the news gathering process. Stanfield v. Polk Cty., 18 Med. L. Rptr. 1262, 1265 (Iowa Dist. Ct., No. CE 34-20125 1990).

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A. Generally

The reporter's privilege provides a presumptive privilege from discovery if the party resisting production "falls within the class of persons qualifying for the privilege" and the information was obtained in the "news gathering process." Bell v. City of Des Moines, 412 N.W.2d 585, 587, 14 Med. L. Rptr. 1729 (Iowa 1987). The privilege "protects confidential sources, unpublished information, and reporter's notes." Waterloo/Cedar Falls Courier v. Hawkeye Community College, 646 N.W.2d 97, 102 (Iowa 2002). The phrases "class of persons" and "news gathering process" are not well defined by statute or case law. In Stanfield and Waterloo/Cedar Falls Courier, the journalists were deemed to be engaging in newsgathering and they qualified for the privilege. See Waterloo/Cedar Falls Courier, 646 N.W.2d at 101.

If the party resisting production "falls within the class of persons qualifying for the privilege" and the information was obtained in the "news gathering process," then the information sought is presumptively privileged and protected from discovery. Waterloo/Cedar Falls Courier, 646 N.W.2d at 101. However, the reporter's privilege is a qualified privilege, which may be subordinated if the requesting party has a substantial need for the information and only after the requesting party has exhausted other less intrusive means of attaining the information. Id.; Winegard, 258 N.W.2d at 850 (stating that privilege is qualified and not absolute).

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B. Absolute or qualified privilege

The Iowa reporter's privilege is a qualified privilege, which may be subordinated if the requesting party has a substantial need for the information and has exhausted other less intrusive means of attaining the information. Winegard, 258 N.W.2d at 850 (stating that privilege is qualified and not absolute); Lamberto, 326 N.W.2d at 308 (setting forth the test for rebuttal of the reporter's privilege presumption). The privilege will not be subordinated for evidence that is cumulative, collateral or gathered for impeachment purposes only. See Lamberto, 326 N.W.2d at 308; Waterloo/Cedar Falls Courier, 646 N.W.2d at 104.

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C. Type of case

1. Civil

In civil cases, the reporter's privilege is a qualified privilege, which may be subordinated if the requesting party has a substantial need for the information and has exhausted other less intrusive means of attaining said information. Winegard, 258 N.W.2d at 850 (stating that privilege is qualified and not absolute); Lamberto, 326 N.W.2d at 308 (setting forth the test for rebuttal of the reporter's privilege presumption). The presumption of privilege is stronger in civil cases than it is in criminal cases. Denk v. Iowa District Court, 20 Med. L. Rptr. 1454, 1455 (Iowa 1992) (three justice panel holds that burden to overcome reporter's privilege is lower in criminal cases).

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2. Criminal

The reporter's privilege is a qualified privilege, which may be subordinated if the requesting party has a substantial need for the information and has exhausted other means of attaining said information. Winegard, 258 N.W.2d at 850 (stating that privilege is qualified and not absolute); Lamberto, 326 N.W.2d at 308 (setting forth the test for rebuttal of the reporter's privilege presumption). However, in criminal cases, the requesting party's need for the information does not have to be as compelling to overcome the reporter's privilege presumption. Denk, 20 Med. L. Rptr. at 1455 (three justice panel holds that burden to overcome reporter's privilege is lower in criminal cases but fails to analyze the reason behind such a distinction). In criminal cases, just as in civil suits, the court must make specific written findings "(1) that the reporter has presumptive status, (2) that the party seeking access to the evidence has established the necessity for it, and (3) that the evidence is not available from other sources." Id. Once the court makes the determination that the presumption has been rebutted, the court must conduct an in-camera inspection to determine if the evidence sought is necessary and relevant. Id.

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3. Grand jury

No Iowa case relates to the reporter's privilege and grand jury subpoenas. Because the Iowa cases so heavily rely on Branzburg, it is likely the privilege would be more easily subordinated in a grand jury context. See Lamberto, 326 N.W.2d at 308 (noting the state’s interest in a well-founded grand jury inquiry and “concern for the fair administration of criminal justice” may override “a claim of testimonial privilege in criminal matters”).

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D. Information and/or identity of source

The Iowa reporter's privilege specifically protects confidential sources and the identity of the confidential source was in issue in Winegard and Waterloo/Cedar Falls Courier. While the cases do not discuss information that implicitly identifies a source of information, given the strength of the protection for confidential sources it is anticipated that ancillary information that implicitly identifies a source similarly would be protected.

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E. Confidential and/or nonconfidential information

In Lamberto and Waterloo/Cedar Falls Courier, the Iowa Supreme Court shielded the journalist from compelled disclosure of confidential information including information provided on an off-the-record basis. See Lamberto, 326 N.W.2d at 310; Waterloo/Cedar Falls Courier, 646 N.W.2d at 104. Confidential information was reviewed under the same standard as confidential sources in Waterloo/Cedar Falls Courier. In that case, the promise not to use the information provided by the confidential sources extended to a statement to the court in the underlying open meetings action that the information would not be used in the litigation. Waterloo/Cedar Falls Courier, 646 N.W.2d at 99. That promise appears to have helped to persuade the court that the journalist should not be ordered to disclose information obtained off-the-record. Id.

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F. Published and/or non-published material

Iowa cases protect unpublished information, including outtakes and reporter's notes, from compelled disclosure. The same test utilized in a confidential source case is used to determine whether the reporter's privilege should be subordinated so that the journalist would be compelled to disclose unpublished information and provide copies of his/her notes and outtakes. Specifically, in Bell v. City of Des Moines, 412 N.W.2d 585, 14 Med. L. Rptr. 1729 (Iowa 1987), the Court reversed a lower court order compelling a television station news director to provide raw footage of a suicide. The Court said that an order requiring the preservation of that evidence would be sustained and that before disclosure of the information the subpoenaing party must meet the substantial need and exhaustion tests of Lamberto. In Waterloo/Cedar Falls Courier and Lamberto, reporter's notes were an issue and in both instances, the journalists were deemed to be shielded under the state and federal constitutions from compelled disclosure of those notes.  However, in Nelle v. WHO Television, LLC, No. 4:17-cv-107, 2017 WL 7049237, *3 (S.D. Iowa Dec. 20, 2017), the Court ordered the television station to produce unaired video interviews to the Plaintiff because the “segments [were] necessary to his [libel] claims.”

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G. Reporter's personal observations

No Iowa case law specifically addresses a reporter's obligation to testify as to events personally witnessed. In Bell, the court stated, in dicta, that information obtained in a news gathering process by a reporter is presumptively privileged but this "does not mean that a reporter may raise the privilege to avoid testifying, as any other citizen, to observations made as an eyewitness." 412 N.W.2d at 588 (citing Branzburg, 408 U.S. at 685-86, 92).

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H. Media as a party

In no Iowa case has the individual person entitled to reporter's privilege protection been a party to the underlying action. In Waterloo/Cedar Falls Courier, a media organization was a party to the underlying action but its editors, from whom the privileged information was sought, were not. 646 N.W.2d 97 (Iowa 2002). The court held the reporter's privilege is personal to the reporter and is not automatically waived when his or her news organization becomes a party to litigation. Id. at 101–02. As to cases in which a reporter asserting privilege is a party the court has repeatedly stated that "in civil cases where a reporter asserting the privilege is a party to the lawsuit and his actions, motivations or thought processes are integral elements of the claim, disclosure is often compelled." Id. at 102 (quoting Lamberto, 326 N.W.2d at 307 (stating that this reasoning applies most aptly to libel cases); see also Nelle, 2017 WL 7049237, at * 2.

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I. Defamation actions

Iowa has no "libel exception" to reporter's privilege, but in defamation actions where the reporter is a party, the reporter's privilege presumption is likely to be rebutted. Lamberto, 326 N.W.2d at 307. In Lamberto, the Court stated that that "in civil cases where a reporter asserting the privilege is a party to the lawsuit and his actions, motivations or thought processes are integral elements of the claim, disclosure is often compelled. The most notable examples are libel cases." Id. Thus, it is anticipated that the Iowa court would utilize a Herbert v. Lando, 441 U.S. 153, 4 Med. L. Rptr. 2575 (1979), analysis in determining that the reporter's privilege afforded by the Iowa constitution would yield to an actual malice libel case against the journalist. See Nelle, 2017 WL 7049237, at * 2-3.  No reported decision discusses the sanctions that would be imposed for failure to disclose privileged information in a libel suit.

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IV. Who is covered

The reporter's privilege is available if the party resisting production "falls within the class of persons qualifying for the privilege" and the information sought to be protected was obtained in the "news gathering process." Bell, 412 N.W.2d at 587. The phrases "class of persons" and "news gathering process" are not defined by the case law. In Waterloo/Cedar Falls Courier, the court held that the privilege belonged to the editors and not the newspaper that employed them. 646 N.W.2d at 102).

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A. Statutory and case law definitions

1. Traditional news gatherers

a. Reporter

No definition of "reporter" is provided by case law and no appellate cases addresses the issue. In Stanfield v. Polk County, No. CE 34-20125, 18 Med. L. Rptr. 1262, 1265-66 (Iowa Dist. Ct. 1990), the trial court relied on the Von Bulow v. Von Bulow, 811 F.2d 136, 13 Med. L. Rptr. 2041 (2d Cir. 1987), decision to determine that a freelance writer qualified for the privilege.

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b. Editor

No definition of "editor" is provided by case law and no case addresses the issue. It is clear after Waterloo/Cedar Falls Courier that both an editor and managing editor qualified for the privilege because they engaged in the news gathering process. 646 N.W.2d at 101.

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c. News

Information sought to be protected must have been obtained in the "news gathering process." Bell, 412 N.W.2d at 587. No definition of "news gathering process" is provided by the case law. In Waterloo/Cedar Falls Courier, the party requesting disclosure asserted that the editors were not engaged in the news gathering process at the time they spoke with their confidential informants, therefore, they were not entitled to the protection of the reporter's privilege. 646 N.W.2d 97 (Iowa 2002). The requesting party, a community college, argued that the editors were seeking fodder for the paper's lawsuit against the college for violating open meetings laws, and were not engaged in the news gathering process. The Court determined that the editors were investigating the meeting and found that at least one article resulted from that investigation. Id. The Court found that the editors were engaged in the news gathering process and were entitled to reporter's privilege protection. Id.

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d. Photo journalist

No definition of "photojournalist" is provided by case law and no case addresses the issue. Bell v. City of Des Moines, 412 N.W.2d 585, 14 Med. L. Rptr. 1729 (Iowa 1987), protected outtakes and, thus, would provide support for protection of work product of photographers and videographers.

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e. News organization/medium

The terms media, news organization, and news medium are not defined by statute or case law and no case relates to the issue.

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2. Others, including non-traditional news gatherers

No appellate case addresses this issue. One district court has extended the scope of the reporter's privilege in Iowa to freelance journalists. See Stanfield,18 Med. L. Rptr. at 1265.

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B. Whose privilege is it?

The privilege belongs to the reporter. See Waterloo/ Cedar Falls Courier, 646 N.W.2d at 102 (“[O]nly the holder of the privilege may waive it.”). In Waterloo/Cedar Falls Courier, the Court stated that "the Courier is not the holder of the reporter's privilege, but the privilege is strictly held by the editors and is subject to waiver only by their actions." 646 N.W.2d at 102 (citing United States v. Cuthbertson, 630 F.2d 139, 147 (3d Cir. 1980) (stating that the privilege belonged to the news organization (CBS) and the privilege can only be waived by its holder)); Nelle, 2017 WL 7049237, at * 2 (stating that the news station was the holder of the privilege); Los Angeles Mem'l Coliseum Comm;n v. Nat’l Football League, 89 F.R.D. 489, 494 (D.C. Cal. 1981) (stating that the privilege belongs to the journalist alone and the journalist is the only person capable of waiving it); Diaz v. Eighth Judicial Dist. Ct. ex rel . Cty. of Clark, 993 P.2d 50, 57 (Nev. 2000) (holding that the privilege belongs to the journalist)). News organizations have successfully asserted the privilege in practice, but all appellate cases involve a named reporter, editor, or news director.

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V. Procedures for issuing and contesting subpoenas

A. What subpoena server must do

1. Service of subpoena, time

Iowa imposes no special procedures or deadlines for service of a subpoena on journalists. There are no state regulations that parallel the U.S. Department of Justice guidelines for subpoenaing journalists. Rule 1.1701 of the Iowa Rules of Civil Procedure does not state a minimum time between service of the subpoena and the date of the testimony. Rule 1.1701(4) states that a reasonable time must be given or the subpoena will be quashed.

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2. Deposit of security

The party serving the subpoena is not required to deposit any security. However, the subpoenaed party is entitled to receive, upon demand, his/her traveling fees to and from the court and the witness fee for one day. Iowa Code § 622.74. If these fees are demanded at the time of service but not paid by the subpoenaing party, the subpoenaed party is not obligated to accept service. Id. The fees rule, in practice, is used by some journalists to decline acceptance of a state court subpoena where fees are not contemporaneously tendered. This practice requires the journalist to ask for the fees and not receive them. It applies only to state court subpoenas.

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3. Filing of affidavit

The subpoenaing party is not required to serve or file an affidavit.

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4. Judicial approval

Judicial approval is not required for the issuance of a subpoena. Iowa Code § 622.63. A clerk's subpoena or attorney's subpoena often are used.

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5. Service of police or other administrative subpoenas

Administrative agency subpoenas may be served by agencies pursuant to Iowa Code § 17A.13 or individual agency enabling statues. Agency subpoenas are enforced by bringing district court proceedings, so a contempt citation can only follow disobedience of the court order, not simply the agency subpoena. Police subpoenas are not normally available or utilized.

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B. How to Quash

1. Contact other party first

A letter or phone call to the subpoenaing attorney is often enough to dissuade the request, provided the reporter or news organization is not a party to the suit. Such contact is not required by law.

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2. Filing an objection or a notice of intent

Within 14 days of service of a subpoena to permit inspection and copying of documents, the person subpoenaed may serve a written objection. Iowa R. Civ. P. 1.1701(4)(b). If objection is made the subpoenaing party is not entitled to an inspection and copying of the documents unless that party first seeks a court order to compel there production. Id.

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3. File a motion to quash

a. Which court?

A motion to quash a subpoena should be filed with the court that issued it. Iowa R. Civ. P. 1.1701(4)(d)(1).

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b. Motion to compel

A journalist need not wait until a motion to compel is filed before filing a motion to quash but if he/she has objected to the subpoena duces tecum, he/she may elect to do so. Once the subpoenaing party is served with written objection, it may move to compel production at any time. Iowa R. Civ. P. 1.1701(4)(b).

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c. Timing

The subpoenaed party must object in writing to the subpoena within 14 days of its receipt, or before the time specified in the subpoena if such is less than 14 days. Iowa R. Civ. P. 1.1701(4)(b). After an objection is made, the subpoenaing party may file a motion to compel at any time. Id. If a motion to compel is filed, a motion to quash and alternative motion for protective order should be filed immediately along with a resistance to the motion to compel. Iowa R. Civ. P. 1.1701(4)(d).

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d. Language

No uniform rules or forms exist for making an objection or filing a motion to quash.

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e. Additional material

A motion should be accompanied by a memorandum of law and may be delivered to the court and opposing counsel along with copies of cases.

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4. In camera review

a. Necessity

An in camera inspection of materials must be conducted prior to disclosure to the party seeking the privileged information. Lamberto v. Bown, 326 N.W.2d 305, 8 Med. L. Rptr. 2525 (Iowa 1982). In Lamberto, the Court noted that an in camera inspection of materials partially destroys the reporter's privilege; therefore, prior to an in camera inspection, the judge must make a threshold showing as to the compelling need of the information and whether other, less obtrusive, means of discovery have been exhausted. 326 N.W.2d at 308-09. If the court determines that the requesting party has a substantial need for the information and has exhausted other means of discovery an in camera examination of the evidence should be ordered. Id. at 309. The in camera inspection will be to determine if the evidence is necessary and is likely to be admissible, thereby imposing another barrier to disclosure to the requesting party. See also Nelle, 2017 WL 7049237, at * 2 (stating that the Court should “examine the material in camera to determine if the evidence is” necessary).

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No reported cases address this issue.

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c. Consequences of refusing

Refusal to appear or testify constitutes contempt of court and the refusing individual may be subject to an attachment writ. An individual found in contempt is subject to fines and possibly jail time. Iowa Code § 665.4. If a journalist is found in contempt, the court may issue a mittimus directing the jailer to detain the journalist until the journalist complies with the courts order. In Lamberto, 326 N.W.2d at 306, the journalist was found in contempt and sentenced to jail until he complied with the courts order requiring disclosure of privileged information. The court delayed the mittimus to allow the journalist to seek appellate review in which the journalist succeeded. A party found in contempt may also be liable to the subpoenaing party for consequences of the failure to obey the subpoena plus $50.00 in additional damages. Iowa Code § 622.76.

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5. Briefing schedule

Once a party serves and files the motion to quash, then any party resisting the motion has 10 days to file and serve a written resistance to the motion. Iowa R. Civ. P. 1.431(4). Within the seven days following service of the resistance, the moving party may file and serve a reply. Iowa R. Civ. P. 1.431(5). The court should rule on the motion within 30 days unless it extends the deadline for reasons stated on the record. Iowa R. Civ. P. 1.431(7).

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6. Amicus briefs

Amicus participation is unusual in Iowa district courts but would probably be allowed. State court rules do not directly address such participation.

Amicus participation at the appellate level is allowed provided that the amici serves and files its brief within the time allowed the party whose position as to affirmance or reversal the brief will support. Iowa R. App. P. 6.906.

Organizations from whom the Court likely would accept such briefs include: Iowa Freedom of Information Council; Iowa Newspaper Association; Iowa Broadcasters Association; Iowa Broadcast News Association; local SDX/SPJ Chapters; and the Reporters Committee for Freedom of the Press.

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VI. Substantive law on contesting subpoenas

A. Burden, standard of proof

If the subpoenaed party falls into the protected class of journalists, his or her information is deemed presumptively privileged. Lamberto, 326 N.W.2d at 309.  Thereafter, the burden falls on the requesting party to show, by a preponderance of the evidence, a substantial need for the information and that other means of attaining the information have been exhausted. Id.

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B. Elements

The elements necessary to subordinate the reporter's privilege for an in camera review by the court, are: (1) the requesting party has a substantial need for the information and (2) the requesting party has exhausted all other means of attaining said information. Lamberto, 326 N.W.2d at 309. Before disclosure can be made to the requesting party, the court must conclude, based on its in camera review, that the information is necessary, relevant and likely admissible. Id.; see also Nelle, 2017 WL 7049237, at * 2-3.

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1. Relevance of material to case at bar

The requesting party's need for the information must be substantial before the reporter's constitutional rights will be subordinated. Lamberto, 326 N.W.2d at 308. The requesting party is subject to a "strict showing of necessity to avoid fishing expeditions by litigants." Id.

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2. Material unavailable from other sources

In order to subordinate the reporter's privilege, the requesting party must have exhausted other means of attaining the information. Lamberto, 326 N.W.2d at 308. Seeking information from a reporter "should be the end, and not the beginning of the inquiry." Id.

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a. How exhaustive must search be?

Courts have not adopted a standard for what constitutes exhaustion. In Lamberto, the Court stated that seeking information from a reporter "should be the end, and not the beginning of the inquiry." 326 N.W.2d at 308. In Waterloo/Cedar Falls Courier, the Court addressed the exhaustion element by stating: "Moreover, the College knows precisely which trustees and other employees were present at the meetings. There remain for the College many unexplored avenues of discovery for the sought after material. The College has not attempted to find out what was said and what occurred at the meetings from anyone other than the Courier's editors. The College must exhaust these resources before going after the editor's privileged information." 646 N.W.2d 97, 104 (Iowa 2002).

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

The requesting party must show by a preponderance of the evidence that he or she reasonably exhausted other sources, such as by taking depositions of other persons with knowledge. See Waterloo/Cedar Falls Courier, 646 N.W.2d at 104 (declining to compel the editors to reveal privileged information where the college did not exhaust alternate sources before going after the editors’ privileged information).

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c. Source is an eyewitness to a crime

No case or statute addresses this issue, but if the requesting party is a criminal defendant, compelled discovery is more likely. Denk, 20 Med. L. Rptr. at 1455 (states that burden to overcome reporter's privilege is lower in criminal cases).

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3. Balancing of interests

Judicial evaluation of what constitutes a compelling need "involves a weighing of competing interests and a determination of relevancy." Lamberto, 326 N.W.2d at 309. The court must ask whether the requesting party's need for the information outweighs the corresponding impairment on the reporter's First Amendment rights. See Winegard, 258 N.W.2d at 851.

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4. Subpoena not overbroad or unduly burdensome

The court is not required to make a determination whether the subpoena is overly broad but the party resisting production may move to quash the subpoena because it is unduly burdensome. Iowa R. Civ. P. 1.1701(4)(d).

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5. Threat to human life

No reported cases or statutory authority address the issue, but if the evidence sought is cumulative, any balancing of competing interests would be affected by this less critical need and the reduced likelihood of admissibility.

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6. Material is not cumulative

No reported cases or statutory authorities address the issue.

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7. Civil/criminal rules of procedure

Rule 1.1701(4)(d)(1)(3) of the Iowa Rules of Civil Procedure provides that a subpoena requiring disclosure of privileged information will be quashed by the court or modified to protect against disclosure of the privileged information. Rule 1.1701(4)(d)(1)(4) provides that an unduly burdensome subpoena will be modified or quashed by the court. Rule 1.1701(4)(a) of the Iowa Rules of Civil Procedure provides that the attorney responsible for the issuing of a subpoena must take reasonable steps to avoid imposing undue burden or expense on the person subject to the subpoena. Rule 1.504 of the Iowa Rules of Civil Procedure provides that a party from whom impermissible discovery is sought may seek, and for good cause be granted, a protective order stopping the burdensome discovery request. In Waterloo/Cedar Falls Courier, the Court directed that just such a protective order be entered on remand. 646 N.W.2d at 104. Rule 2.15(2) of the Iowa Rules of Criminal Procedure provides that a subpoena that is unreasonable or oppressive will be dismissed by the court upon motion for the same. Rule 2.14(6)(a)(3) allows the court to regulate discovery and issue protective orders to prohibit compelled disclosure of privileged information. The subpoenaed party may file a motion to quash based on any of the above-mentioned rules.

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8. Other elements

No other elements must be met before the privilege can be overcome.

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C. Waiver or limits to testimony

The reporter's privilege can be waived only by the privilege holder. Waterloo/Cedar Falls Courier, 646 N.W.2d at 102.

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1. Is the privilege waivable?

The reporter's privilege protection can be waived only by the privilege holder. Waterloo/Cedar Falls Courier, 646 N.W.2d at 102. In Waterloo/Cedar Falls Courier, the subpoenaing college asserted that the editors had waived the privilege when their newspaper sued the college. Id. The Court responded that "the Courier is not the holder of the reporter's privilege, but the privilege is strictly held by the editors and is subject to waiver only by their actions." Id. (citing United States v. Cuthbertson, 630 F.2d 139, 147 (3d Cir. 1980) (stating that the privilege belonged to the news organization (CBS) and the privilege can only be waived by its holder); Los Angeles Mem'l Coliseum Comm’n v Nat’l Football League, 89 F.R.D. 489, 494 (D.C. Cal. 1981) (stating that the privilege belongs to the journalist alone and the journalist is the only person capable of waiving it); Diaz v. Eighth Judicial Dist. Ct. ex rel. County of Clark, 993 P.2d 50, 57 (Nev. 2000) (holding that the privilege belongs to the journalist)). The Court continued that even if the editors were a party to the action, "their mere status as litigants is not sufficient to constitute a waiver of the privilege." Id. If the editors were a party to the action and they placed the privileged materials at issue by relying on it to pursue their claim, the privilege would be waived. Id. The editors avoided placing the privileged materials at issue by not using it in the litigation. Id.

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2. Elements of waiver

No case details the elements of waiver of the reporter's privilege. In Waterloo/Cedar Falls Courier, the Court stated that the privilege could be waived by placing the privileged information at issue in the litigation. 646 N.W.2d at 102.

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a. Disclosure of confidential source's name

No reported cases address this issue.

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b. Disclosure of non-confidential source's name

No reported cases address this issue.

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c. Partial disclosure of information

No reported cases address this issue.

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d. Other elements

No reported cases address this issue.

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3. Agreement to partially testify act as waiver?

No reported cases address this issue.

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VII. What constitutes compliance?

A. Newspaper articles

Under the Iowa Rules of Evidence 5.902(6), printed newspapers and periodicals are self-authenticating.

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B. Broadcast materials

Broadcast materials are not self-authenticating under Iowa Rules of Evidence 5.902. Authentication is a condition precedent to admissibility. Iowa Rules of Evidence 5.902. Authentication of an item can be accomplished by testimony of a person with knowledge that the item is what it is claimed to be. Iowa Rules of Evidence 5.901. The parties may stipulate as to the authenticity of the item, negating the need for testimony.

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C. Testimony vs. affidavits

The parties may stipulate as to the authenticity of the item, negating the need for testimony. In practice, affidavits merely to confirm that an article was true and accurate as published are offered by journalists and sometimes are accepted by the parties. Where one party objects on hearsay grounds, the self-authentication argument often can prove successful.

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D. Non-compliance remedies

Refusal to appear or testify following valid subpoena constitutes contempt of court. Iowa Code § 665.2.

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1. Civil contempt

Civil contempt is remedial, meaning that the penalties are only imposed to enforce compliance with a court order. See Knox v. Municipal Court, 185 N.W.2d 705, 707 (Iowa 1971). In the reporter's privilege context, the court may issue a mittimus order detaining the journalist until he or she complies with a discovery order. See Lamberto, 326 N.W.2d at 306.

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a. Fines

The maximum fines for contempt of court are: "1. In the supreme court or the court of appeals, by a fine not exceeding one thousand dollars . . .; 2. Before district judges, district associate judges, and associate juvenile judges by a fine not exceeding five hundred dollars . . .; and 3. Before judicial magistrates, by a fine not exceeding one hundred dollars . . . ." Iowa Code § 665.2.

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b. Jail

Possible jail sentences for contempt are: 1. In the supreme court or the court of appeals … imprisonment in a county jail not exceeding six months, or by both such fine and imprisonment; 2. Before district judges, district associate judges, and associate juvenile judges imprisonment in a county jail not exceeding six months or by both such fine and imprisonment; and 3. Before judicial magistrates imprisonment in a county jail not exceeding thirty days. Iowa Code § 665.4.

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2. Criminal contempt

Criminal contempt is punitive and "serves to vindicate the authority of the court and does not terminate upon compliance with a court order." Knox, 185 N.W.2d at 707. No reported Iowa case involves a journalist being cited for criminal contempt.

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3. Other remedies

Failure to obey a subpoena also subjects the individual to civil liability. Iowa Code § 622.76 states: "For a failure to obey a valid subpoena without a sufficient cause or excuse, or for a refusal to testify after appearance, the delinquent is guilty of a contempt of court and subject to be proceeded against by attachment. The delinquent is also liable to the party by whom the delinquent was subpoenaed for all consequences of such delinquency, with fifty dollars additional damages."

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VIII. Appealing

A. Timing

1. Interlocutory appeals

A party aggrieved by an interlocutory ruling or decision, such as the denial of a motion to quash, may apply to the Iowa Supreme Court for review in advance of final judgment. Iowa R. App. P. 6.104. The appeal must be sought within 30 days of the order's entry. Id. The appeal will be granted if (1) the ruling or decision involves substantial rights; (2) the ruling or decision will materially affect the final decision; and (3) a determination of its correctness before trial on the merits will better serve the interests of justice. Id.

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2. Expedited appeals

The order granting the appeal may also provide that it is advanced for prompt submission. Iowa R. App. P. 6.104. Iowa Rule of Appellate Procedure 6.902 provides special rules for expedited appeals involving certain children's issues and lawyer disciplinary proceedings. Otherwise, no special rules apply to expedited appeals.

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B. Procedure

1. To whom is the appeal made?

Appeals from final decisions of district courts may be made as a matter of right to the Iowa Supreme Court. The Iowa Supreme Court may refer the case to the Iowa Court of Appeals for appellate review or retain jurisdiction over the appeal. If a case is referred to the Iowa Court of Appeals, the Supreme Court may choose to review it on an application for further review.

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2. Stays pending appeal

An order granting an interlocutory appeal stays further proceedings below. Iowa R. App. P. 6.104.

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3. Nature of appeal

Review in the Iowa Supreme Court is by standard appeal under the state rules of appellate procedure.

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4. Standard of review

Review is de novo. The weighing of conflicting interests involved in a reporter's privilege case is a matter of law, not fact, and lower courts findings are not binding on the appellate court. Lamberto, 326 N.W.2d at 309.

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5. Addressing mootness questions

No case law or statutory authority addresses the issue.

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6. Relief

Generally, an appeal can result in a decision that the information need not be disclosed, that the information must be disclosed, or that the lower court must reconsider or remand in light of the appellate decision.

This author is unaware of any post- Zurcher v. Stanford Daily, 436 U.S. 547, 3 Med. L. Rptr. 2377 (1978) searches occurring in Iowa newsrooms. Iowa has no specific statutory provisions regarding searches of newsrooms. In Lambert v. Polk County, 723 F. Supp. 128, 16 Med. L. Rptr. 2414 (S.D. Iowa 1989), police officers seized a video tape of a fight in which a fatality occurred made by a home videographer. The police obtained the video by representing that the tape would be returned to the home videographer within two days. Id. The U.S. District Court found it likely that the seizure was not voluntary because of this misrepresentation and therefore violated the videographer's right to due process. Id.

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IX. Other issues

A. Newsroom searches

This author is unaware of any post- Zurcher v. Stanford Daily, 436 U.S. 547, 3 Med. L. Rptr. 2377 (1978) searches occurring in Iowa newsrooms. Iowa has no specific statutory provisions regarding searches of newsrooms. In Lambert v. Polk County, 723 F. Supp. 128, 16 Med. L. Rptr. 2414 (S.D. Iowa 1989), police officers seized a video tape of a fight in which a fatality occurred made by a home videographer. The police obtained the video by representing that the tape would be returned to the home videographer within two days. Id. The U.S. District Court found it likely that the seizure was not voluntary because of this misrepresentation and therefore violated the videographer's right to due process. Id.

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B. Separation orders

No reported cases or statutory authority address this issue.

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C. Third-party subpoenas

No cases or statutory authority address this issue.

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D. The source's rights and interests

No cases or statutory authority address this issue.

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