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Kansas

Reporter's Privilege Compendium

William P. Tretbar

Fleeson, Gooing, Coulson & Kitch, L.L.C.

125 N. Market, Suite 1600

Wichita, Kansas 67202

(316) 267-7361

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I. Introduction: History & Background

The Kansas legislature enacted a shield law in 2010.  It is found at K.S.A. 60-480, et seq.  It applies in litigation in Kansas state courts and should also be applied in civil litigation in federal court in Kansas in which the court’s jurisdiction is predicated on diversity of citizenship.  See, e.g. Federal Rule of Evidence § 501 (“in a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule of decision”); Black & Veatch Corp. v. Aspen Ins. (UK) Ltd., 297 F.R.D. 611 (D. Kan. 2014); White v. American Airlines, Inc., 915 F.2d 1414, 1424 (10th Cir. 1990).

Prior to the enactment of the shield law, state courts applied a common law, First Amendment-based reporter’s privilege based on the decision of the Kansas Supreme Court in In re Pennington, 224 Kan. 573, 581 P.2d 812, 813 (1978), cert. denied, 440 U.S. 929 (1979).  The Pennington decision proved confusing to litigants and judges attempting to understand and apply it in the years that followed.  See, e.g., C. Grenz, “Into Battle Without A Shield:  How One Reporter’s Use Of An Anonymous Source Led To The Creation Of A Statutory Reporter’s Privilege In Kansas,” 60 U. Kan. L. Rev. 1071 (2012).  Nevertheless, the decision remains good law, and to the extent Pennington may afford greater protection to a journalist than is afforded by the shield law, Pennington will control.  See, K.S.A. 60-485 (shield statute does not limit or “otherwise affect a privilege guaranteed by the constitution of the United States or the state of Kansas.”).  Although it is difficult to envision a situation in which this will be the case, it is advisable for practitioners to assert both privileges—the Kansas shield statute and the qualified First Amendment-based privilege referred to in Pennington-- in state court litigation and in diversity cases in federal court.

In federal court proceedings involving the application of federal law, the qualified First Amendment privilege first recognized by the United States Court of Appeals for the Tenth Circuit in Silkwood v. Kerr-McGee Corp., 563 F.2d 433 (10th Cir. 1977) applies.

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II. Authority for and source of the right

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A. Shield law statute

K.S.A. 60-480, et seq. provides that: “Except as provided in K.S.A. 60-482, and amendments thereto, a journalist cannot be adjudged in contempt by a judicial, legislative, administrative body or any other body having the power to issue subpoenas, for refusing to disclose, in any state or local proceeding, any information or the source of any such information procured while acting as a journalist.”

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B. State constitutional provision

The Kansas Constitution does not have an express shield provision, nor has it been construed in a manner providing such protection.

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C. Federal constitutional provision

In Silkwood v. Kerr-McGee Corp., 563 F.2d 433 (10th Cir. 1977) (“Silkwood”), the Tenth Circuit recognized the existence of a qualified reporter’s privilege based on the First Amendment.  A First Amendment-based qualified privilege was also recognized by the Kansas Supreme Court in In re Pennington, 224 Kan. 573, 581 P.2d 812 (1978), cert. denied, 440 U.S. 929 (1979).

Although the  boundaries of the First Amendment-based qualified privilege described in the Kansas Supreme Court’s Pennington decision are difficult to identify, it is nevertheless prudent to preserve the common law privilege argument based on Pennington in state court proceedings, in addition to citing the Kansas shield law.

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D. Other sources

There are no other sources of law discussing this issue.

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III. Scope of protection

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A. Generally

State Courts:

K.S.A. 60-481 provides that:

Except as provided in K.S.A. 60-482, and amendments thereto, a journalist cannot be adjudged in contempt by a judicial, legislative, administrative body or any other body having the power to issue subpoenas, for refusing to disclose, in any state or local proceeding, any information or the source of any such information procured while acting as a journalist.

K.S.A. 60-482 provides that:

  1. (a) A journalist may not be compelled to disclose any previously undisclosed information or the source of any such information procured while acting as a journalist until the party seeking to compel the disclosure establishes by a preponderance of the evidence in district court that the disclosure sought:

(1)  Is material and relevant to the proceeding for which the disclosure is sought;

(2)  could not, after a showing of reasonable effort, be obtained by readily available alternative means; and

(3)  is of a compelling interest.

(b) For purposes of this section, a “compelling interest” is evidence likely to be admissible and has probative value that is likely to outweigh any harm done to the free dissemination of information to the public through the activities of journalists, which includes, but is not limited to:

(1) The prevention of a certain miscarriage of justice; or

(2) an imminent act that would result in death or great bodily harm.

Interests that are not compelling include, but are not limited to, those of parties whose litigation lacks sufficient grounds, is abusive or is brought in bad faith.

In addition to the statutory protection discussed above, the activities of journalist’s are protected by the First Amendment-based qualified privilege identified by the Kansas Supreme Court in In re Pennington, 224 Kan. 573, 581 P.2d 812 (1978), cert. denied, 440 U.S. 929 (1979).  Although a judge of the United States District Court for the District of Kansas once likened the privilege described in Pennington to the qualified privilege recognized by the Tenth Circuit in the Silkwood case discussed below, see Weathers v. American Family Mutual Insurance Co., No. 87-2557-0, 1989 U.S. Dist. LEXIS 18300, at *2 (D. Kan. September 26, 1989), it is difficult for the author to see the likeness.  A comprehensive discussion of the reasons why Pennington has proven difficult to interpret would exceed the scope of this outline.  It is enough to say that the Kansas Supreme Court clearly intended to identify a qualified First Amendment-based privilege applicable to journalists that affords at least some protection with respect to both sources and other information obtained in the course of newsgathering.  For an exhaustive examination of the Pennington decision, see, C. Grenz, “Into Battle Without A Shield: How One Reporter’s Use Of An Anonymous Source Led To The Creation Of A Statutory Reporter’s Privilege In Kansas,” 60 U. Kan. L. Rev. 1071 (2012).

Federal Courts: The First Amendment-based qualified privilege applicable in federal question litigation in federal court requires a litigant attempting to overcome the privilege to demonstrate that he or she has independently attempted to obtain the information being sought from a journalist elsewhere and failed, and that the information sought is crucial to the litigation, i.e., that it literally “goes to the heart of the matter.”  See, e.g., Grandbouche v. Clancy, 825 F.2d 1463 (10th Cir. 1987); Silkwood v. Kerr-McGee Corp., 563 F.2d 433 (10th Cir. 1977).

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B. Absolute or qualified privilege

The privilege is qualified in both state and federal courts.

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C. Type of case

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1. Civil

The Kansas shield law, K.S.A. 60-480, et seq., makes no distinction impacting the strength of the qualified privilege it provides based on the nature of the litigation or the forum in which it is contested.  It simply states that subject to the qualifications articulated at K.S.A. 60-482, a journalist who is protected by the shield law “cannot be adjudged in contempt by a judicial, legislative, administrative body (sic) or any other body having the power to issue subpoenas.”  K.S.A. 60-481.

In Pennington, decided prior to the enactment of the shield statutes, the Kansas Supreme Court suggested without analysis that the “news reporter’s privilege” based on the First Amendment that it had in mind “is more tenuous in a criminal proceeding than in a civil case.” In re Pennington, 224 Kan. 573, 581 P.2d 812, 815 (1978), cert. denied, 440 U.S. 929 (1979).

In non-diversity cases in federal court, in which the common law First Amendment-based privilege applies, the Tenth Circuit has said that the “type of controversy” is a factor to consider in determining whether the qualified privilege is available in a particular case, without further analysis. Silkwood v. Kerr-McGee Corp., 563 F.2d 433, 438 (10th Cir. 1977).  In a subsequent decision, Judge Waxse, then a Magistrate Judge in the District of Kansas commented that:

Although Silkwood was decided in the context of civil litigation, the Court sees no legally-principled reason for drawing a distinction between civil and criminal cases when considering whether the reporter's interest in confidentiality should yield to the moving party's need for probative evidence. Indeed, the important social interests in the free flow of information that are protected by the reporter's qualified privilege are particularly compelling in criminal cases. Reporters are to be encouraged to investigate and expose, free from unnecessary government intrusion, evidence of criminal wrongdoing.

United States v. Foote, 00-CR-20091-01-KHV, 2002 WL 1822407 (D. Kan. August 8, 2002) (emphasis supplied).  In other words, Judge Waxse reached the opposite conclusion to that noted in Pennington.

 

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2. Criminal

See above.

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3. Grand jury

For purposes of invoking the privilege in state court, see K.S.A. 60-480, et seq.  It should be noted that grand juries are rarely convened under Kansas law. A somewhat-similar procedure journalists may encounter Kansas state courts is the prosecutorial “inquisition.” See K.S.A. 22-3101, et seq. An inquisition is essentially a discovery proceeding, in which the district attorney is authorized to issue subpoenas for testimony under oath regarding alleged violations of state law. See, e.g., K.S.A. 22-3101, et seq.  There is no appellate case law discussing the privilege in the context of an inquisition.

In federal grand jury cases, the courts in Kansas (and throughout the federal system) are bound to follow the decision in Branzburg v. Hayes, 408 U.S. 665 (1972), which involved three distinct grand jury subpoenas. Although Justice Powell’s concurring opinion in Branzburg is cited in most decisions regarding the reporter’s privilege, it is at least debatable whether the Branzburg decision truly establishes the existence of such a privilege, and that the court in Branzburg ordered the reporter-recipients of the grand jury subpoenas in issue to testify in any event.

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D. Information and/or identity of source

K.S.A. 60-481 provides that:

Except as provided in K.S.A. 60-482 . . . a journalist cannot be adjudged in contempt . . . for refusing to disclose . . . any information or the source of any such information procured while acting as a journalist.

K.S.A. 60-482 provides that:

A journalist may not be compelled to disclose any previously undisclosed information or the source of any such information procured while acting as a journalist . . .  (emphasis supplied).

If the qualified privilege based on the First Amendment applies, it protects the identity of a confidential source, as well as information implicitly identifying the source, under both state and federal case law.  Grandbouche v. Clancy, 825 F.2d 1463 (10th Cir. 1987); Silkwood v. Kerr-McGee Corp., 563 F.2d 433 (10th Cir. 1977); In re Pennington, 224 Kan. 573, 581 P.2d 812, 815 (1978), cert. denied, 440 U.S. 929 (1979).

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E. Confidential and/or nonconfidential information

The Kansas shield statute does not draw a distinction between “confidential” and “non-confidential” information. It is said to extend to “information,” which is a defined at K.S.A. 60-480(b) as follows:

“Information” means any information gathered, received or processed by a journalist, whether or not such information is actually published, and whether or not related information has been disseminated, and includes, but is not limited to, all notes, outtakes, photographs, tapes and other recordings or other data of whatever sort that is gathered by a journalist in the process of gathering, receiving or processing information for communication to the public.

K.S.A. 60-481 can be read as immunizing journalists from the compulsory disclosure of any “information” in any case, i.e., all information assembled by a journalist while acting as a journalist whether “confidential” or otherwise; however, this interpretation is at odds with the plain language of K.S.A. 60-482(a), which makes it clear that the qualified privilege can be overcome upon proper showing.

The Kansas Supreme Court has held in a number of cases not involving journalists that a litigant seeking confidential information will be required to demonstrate that he or she has exhausted a search for alternative sources of the information in issue. In re Rockhill Pain Specialists, P.A, 55 Kan.App.2d 161, 412 P.3d 1008 (2017);  Berst v. Chipman, 232 Kan. 180, 189, 653 P.2d 107 (1982); Adams v. St. Francis Regional Medical Center, 264 Kan. 144, 160, 955 P.2d 1169 (1998).

In non-diversity cases in federal court, in which the federal privilege laws will be applied, the decision in United States v. Foote, 00-CR-20091-01-KHV, 2002 WL 1822407 (D. Kan. August 8, 2002) can be cited.  In Foote, Magistrate Waxse stated that:  “the court is persuaded that non-confidential information gathered by a reporter or other journalist is entitled to the privilege as well.”

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F. Published and/or non-published material

Although the Kansas shield law has yet to be definitely construed by the Kansas appellate courts, the author believes it unlikely that Kansas courts will interpret the law as extending protection with respect to published information.  K.S.A. 60-482(a) states that:

A journalist may not be compelled to disclose any previously undisclosed information or the source of any such information procured while acting as a journalist until the party seeking to compel the disclosure establishes by a preponderance of the evidence in district court that the disclosure sought:

(1)  Is material and relevant to the proceeding for which the disclosure is sought;

(2)  could not, after a showing of reasonable effort, be obtained by readily available alternative means; and

(3)  is of a compelling interest.

K.S.A. 60-482(a) (emphasis supplied).

Moreover, applying a privilege with respect to published information would appear to be contrary to the provisions in both the Kansas and federal rules of evidence regarding waiver. See K.S.A. 60-437 and Federal Rules of Evidence § 501.

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G. Reporter's personal observations

The Kansas shield law protects “information” procured by journalists.  “Information” is defined as:

 

[A]ny information gathered, received or processed by a journalist . . . in the process of gathering, receiving or processing information for communication to the public.

 

K.S.A. 60-480(b) (emphasis supplied).

 

This definition can be read as extending to “information gathered” by a journalist by means of personal observation, so long as the observing took place at a time when the journalist was acting as a journalist.

Although there are no cases on point, the author is confident that neither the state nor federal courts of Kansas would interpret the common law, First Amendment-based privilege as providing protection to personal observations made at a time when the journalist was not acting as a journalist.  In other words, a journalist who happens to observe a motor vehicle accident or a robbery will be expected to testify the same as any other citizen.

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H. Media as a party

The Kansas shield law makes no distinction that would render the qualified privilege it provides inapplicable in a case in which the journalist is a party, such as a defamation, invasion of privacy or other tort case.  Nevertheless, Kansas case law predating the enactment of the shield law established that journalists who are parties to litigation do not have a First Amendment privilege shielding them from discovery into the editorial process or their state of mind, at least in defamation cases in which proof of actual malice is an essential element. See, e.g., Gleichenhaus v. Carlyle, 226 Kan. 167, 170, 597 P.2d. 611 (1979); Herbert v. Lando, 441 U.S. 153 (1979).  There is no case law in which a Kansas appellate court has been called upon to harmonize the statute with the preexisting case law.  In the author’s opinion, a Kansas appellate court would more likely than not attempt to harmonize the two, by holding that a court may not require a journalist to testify in this setting, but is not precluded from ruling that particular facts may be deemed established if the reporter refuses to testify regarding these facts, at least in a defamation case requiring proof of actual malice.

In Grandbouche v. Clancy, 825 F.2d 1463 (10th Cir. 1987), a somewhat unusual non-media First Amendment privilege case, the Tenth Circuit “refuse(d) to adopt a per se rule that a plaintiff waives his First Amendment privileges simply by bringing suit.” 825 F.2d at 1467.

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I. Defamation actions

See above.

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IV. Who is covered

The Kansas shield law affords protection to “journalists.”  The expression “journalist” is defined at K.S.A. 60-480(a), which provides that:

“Journalist” means: (1) A publisher, editor, reporter or other person employed by a newspaper, magazine, news wire service, television station or radio station who gathers, receives or processes information for communication to the public; or (2) an online journal in the regular business of newsgathering and disseminating news or information to the public.

The decision in Silkwood, which involved the privilege claim of a documentary film maker, suggests that the Tenth Circuit will resolve the question of “who is covered” by the federal common law privilege liberally. In the subsequent case of Grandbouche v. Clancy, 825 F.2d 1463 (10th Cir. 1987), the court recognized the qualified First Amendment privilege rights of an individual who did not claim to be a news gatherer or representative of any communications medium.

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A. Statutory and case law definitions

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1. Traditional news gatherers

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a. Reporter

See K.S.A. 60-480(a), quoted above.

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b. Editor

See K.S.A. 60-480(a), quoted above, which refers specifically to “editors” in defining “journalist.”

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c. News

The Kansas shield law does not define “news” but does limit its protections to “information” acquired at times when a journalist is “acting as a journalist,” which are defined expressions.  K.S.A. 60-480(b) and (c).  These statutes make it clear that what is protected is that which is “gather[ed], receiv[ed] or process[ed] for communication to the public.”

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d. Photo journalist

As noted above, the expression “journalist” is defined at K.S.A. 60-480(a), which provides that:

 

“Journalist” means: (1) A publisher, editor, reporter or other person employed by a newspaper, magazine, news wire service, television station or radio station who gathers, receives or processes information for communication to the public; or (2) an online journal in the regular business of newsgathering and disseminating news or information to the public.

 

The statutory definition of “information,” in turn, refers specifically to “photographs, tapes and other recordings.”  K.S.A. 60-480(b).  Thus, although the definition of “journalist” does not refer specifically to photographers and videographers, it seems clear that such individuals are entitled to protection.

For purposes of federal question litigation in federal courts, see Silkwood v. Kerr-McGee Corp., 563 F.2d 433, 438 (10th Cir. 1977), which extended protection to a documentary filmmaker.

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e. News organization/medium

The definition of “journalist” in the Kansas shield law includes “publisher(s) . . . magazine(s), news wire service(s), television station(s) (and) radio station(s).”  K.S.A. 60-480(a)(1).  It also includes “online journal(s) in the regular business of newsgathering and disseminating news or information to the public.”  K.S.A. 60-480(a)(2).

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2. Others, including non-traditional news gatherers

There is no law addressing this issue under the Kansas shield law beyond the definitions identified in the preceding section.  As previously noted, the Silkwood and Grandbouche decisions suggest that the Tenth Circuit is not inclined to limit the availability of the qualified privilege to traditional media in litigation in federal courts, in which the issue of privilege will be determined by resort to federal privilege law.

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B. Whose privilege is it?

There is no statutory or case law addressing this issue in the reporter’s privilege context.  The author believes it reasonably likely that a Kansas court would hold that the statutory protection afforded by the Kansas shield law and the common law qualified privilege “belongs” to the journalist asserting it.

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V. Procedures for issuing and contesting subpoenas

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A. What subpoena server must do

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1. Service of subpoena, time

There is no specific limitation under either state or federal civil procedural rules requiring a litigant causing a subpoena to be issued to obtain service within a specified period in advance of the hearing or deposition; however, the rules provide that a court may award sanctions in connection with the issuance of a subpoena if the litigant responsible “fails to allow reasonable time for compliance.” K.S.A. 2006 Supp. 60-245(c)(3)(A)(i) and Rule 45(c)(3)(A)(i), Fed.R.Civ.P.

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2. Deposit of security

State law does not require the litigant issuing a subpoena to deposit security, although the payment of a modest witness fee and mileage, by way of check served with the subpoena, is required in civil cases. K.S.A. 60-245(b).

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3. Filing of affidavit

There is no statute or decision requiring the party causing the subpoena to be issued to make a sworn statement of any kind in order to obtain a journalist’s testimony.

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4. Judicial approval

There are no circumstances in which a judge or magistrate must approve a subpoena prior to issuance and service.

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5. Service of police or other administrative subpoenas

State criminal procedure includes provisions for prosecutorial “inquisitions.” See, K.S.A. 22-3101, et seq. Inquisition subpoenas are served in the same manner as other subpoenas, as are subpoenas compelling attendance at administrative proceedings.

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B. How to Quash

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1. Contact other party first

The law does not require a journalist to contact the party issuing the subpoena prior to filing a motion to quash. It is nevertheless a good idea to do so, as this may permit a reporter to learn the reason for the issuance of the subpoena, i.e., the nature of the information in which the litigant is interested, which will be useful in preparing a well-targeted motion.

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2. Filing an objection or a notice of intent

State courts do not require the filing of a notice of intent to quash a subpoena before the filing of the actual motion to quash. Objections and/or the motion to quash should be filed within at least 14 days of service. The filing of objections, as opposed to a motion to quash, will be sufficient and, indeed, is probably preferable in cases in which only documents are sought. If objections are made, the burden is on the party issuing the subpoena to demonstrate that he or she is entitled to documentary material in issue. See K.S.A. 2006 Supp. 60-245a(b). The burden of proof is allocated differently in connection with a motion to quash, in which the burden is typically allocated to the party seeking an order quashing the subpoena to demonstrate that he or she is entitled to that relief.  (Note: litigants intending to file a subpoena for the business records of a non-party are required to give the parties notice of their intent to do so at least 14 days prior to the issuance of the subpoena; however, the statute does not provide for notice to the non-party the subpoena will target. See K.S.A. 60-245a(b)(1).)

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3. File a motion to quash

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a. Which court?

A motion to quash a subpoena issued in a state court action should be filed in the district court hearing the case in which the subpoena is issued.

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b. Motion to compel

A media party should not wait for the party issuing the subpoena to file a motion to compel before filing a motion to quash.

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c. Timing

A motion to quash should be filed prior to the date and time for compliance with the subpoena, and in no event, more than 14 days after service.

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d. Language

There is no preferred text or stock language that is required in connection with a motion to quash a subpoena.

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e. Additional material

It is unclear whether the filing of additional material documenting the burdensome nature of subpoenas is helpful in connection with the filing of a motion to quash.

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4. In camera review

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a. Necessity

At K.S.A. 60-483, the Kansas shield law provides that:

The party claiming the privilege and the party seeking to compel disclosure shall be entitled to a hearing. After such hearing, the court may conduct an in camera inspection to determine if such disclosure is admissible. If the court then specifically finds that such disclosure is admissible and that its probative value outweighs any harm to the free dissemination of information to the public through the activities of journalists, then the court shall direct production of such disclosure and such disclosure only.

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There is no statutory or case law addressing this issue.

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c. Consequences of refusing

If the reporter or publisher does not consent to a request for an in-camera review, the likely consequence is a denial of the motion to quash and a possible contempt ruling.

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5. Briefing schedule

There is no standard briefing schedule for a motion to quash in Kansas.

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6. Amicus briefs

Appellate courts routinely accept amicus briefs. They are filed infrequently at the trial level, as a result of which it is impossible to say whether they are “routinely” accepted.

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VI. Substantive law on contesting subpoenas

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A. Burden, standard of proof

The language of the Kansas shield law allocates the burden of making a showing sufficient to overcome the rights of the journalist to the party seeking disclosure.  In addition, as noted elsewhere, there are at least three decisions in non-journalist cases that suggest a party seeking “confidential” information must demonstrate that it is unavailable from other sources. In federal cases, the burden is on the litigant seeking to overcome the privilege claim to demonstrate that the information in issue is crucial to his or her case and that it is unavailable from other sources.

A motion to quash pursuant to the Kansas shield law will be decided based on K.S.A. 60-482, which provides that:

(a) A journalist may not be compelled to disclose any previously undisclosed information or the source of any such information procured while acting as a journalist until the party seeking to compel the disclosure establishes by a preponderance of the evidence in district court that the disclosure sought:

(1) Is material and relevant to the proceeding for which the disclosure is sought;

(2) could not, after a showing of reasonable effort, be obtained by readily available alternative means; and

(3) is of a compelling interest.

(b) For purposes of this section, a “compelling interest” is evidence likely to be admissible and has probative value that is likely to outweigh any harm done to the free dissemination of information to the public through the activities of journalists, which includes, but is not limited to:

(1) The prevention of a certain miscarriage of justice; or

(2) an imminent act that would result in death or great bodily harm.

Interests that are not compelling include, but are not limited to, those of parties whose litigation lacks sufficient grounds, is abusive or is brought in bad faith.

K.S.A. 60-482.  This provision has yet to be analyzed or construed by the Kansas appellate courts.

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B. Elements

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1. Relevance of material to case at bar

The material or testimony subject to a subpoena must be relevant to the case at bar. See, K.S.A. 60-482(a)(1).

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2. Material unavailable from other sources

In state court, the movant must show that information he or she seeks “could not, after a showing of reasonable effort, be obtained by readily available alternative means.”  K.S.A. 60-482(a)(2).  Federal court litigants must demonstrate that the information is unavailable from any other source. Silkwood v. Kerr-McGee Corp., 563 F.2d 433, 438 (10th Cir. 1977).

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a. How exhaustive must search be?

In state court, the movant is obliged to show that the information in issue “could not, after a showing of reasonable effort, be obtained by readily available alternative means.”  K.S.A. 60-482(a)(2).  In federal court, there have been unpublished decisions rendered by United States Magistrates in Kansas holding that a litigant has demonstrated unavailability, but these have not discussed where the bar will be set in terms of how far the litigant must go in seeking other means of access to the information.  See, e.g., United States v. Foote, 2002 U.S. Dist. LEXIS 14818, 30 Med. L. Rep. 2469 (D. Kan. 2002).

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

The Kansas shield statute suggests that the party issuing the subpoena will be required to make a showing of the efforts made to obtain the information in issue “by readily available alternative means.”  K.S.A. 60-482(a)(2).  The language of the statute suggests that the showing must be in form of admissible evidence.  See, K.S.A. 60-482(b), defining “compelling interest” as “evidence likely to be admissible and has probative value .. . .”

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c. Source is an eyewitness to a crime

The Kansas shield law does not contain a special rule compelling disclosure of the identity of a source who is allegedly an eyewitness to crime.  It does specify various circumstances that may be viewed as a “compelling interest” sufficient to satisfy the test identified at K.S.A. 60-482(a) as including “the prevention of a certain miscarriage of justice” and “an imminent act that would result in death or great bodily harm.”  K.S.A. 60-482(b)(1) and (2).  There is no controlling case law addressing this issue under the common law privilege.

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3. Balancing of interests

The Kansas shield law does not specifically require a “balancing” of interests, i.e., the party who seeks to compel disclosure of information in the possession of a journalist either succeeds in making a showing that satisfies the requirements of K.S.A. 60-482(a) or he doesn’t, in which case the journalist will not be required to respond to the subpoena.  However, in determining whether the evidence/information in which the party seeking the information is interested, the court is obliged to consider whether “the evidence (is) likely to be admissible and has probative value that is likely to outweigh any harm done to the free dissemination of information to the public through the activities of journalists.”  K.S.A. 60-482(b) (emphasis supplied).  This necessarily requires a “balancing” of the respective interests.

Under the common law privilege, there is language in the Pennington decision suggesting that state courts should balance the interest of the litigant and the reporter in determining whether to quash the subpoena.  This may represent dicta.

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4. Subpoena not overbroad or unduly burdensome

Both the state and federal rules of civil and criminal procedure require the court considering objections and/or a motion to quash to determine whether the subpoena is overbroad or unduly burdensome. If it is, the reporter is entitled to relief in the form of a protective order.

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5. Threat to human life

The Kansas shield law identifies various circumstances that may be viewed as a “compelling interest” sufficient to satisfy the test identified at K.S.A. 60-482(a).  One of these is when it is shown that information in issue relates to “an imminent act that would result in death or great bodily harm.”  K.S.A. 60-482(b)(2).

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6. Material is not cumulative

The party seeking to enforce a subpoena served on a journalist must show that the information he or she seeks is not “readily available by alternative means,” K.S.A. 60-482(a)(2), a showing that cannot be made if the information in issue is cumulative.  A similar result would obtain in federal courts applying the qualified privilege described in Silkwood.

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7. Civil/criminal rules of procedure

The state and federal rules of civil and criminal procedure contain rules permitting a non-party witness to seek a protective order with respect to a frivolous or unduly burdensome subpoena.

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8. Other elements

K.S.A. 60-484 provides that a court “may” allow attorney fees to the prevailing party in a dispute involving application of the Kansas shield law if it is determined that “the party seeking to compel disclosure had no reasonable basis to request such disclosure,” or “that the party claiming the privilege had no reasonable basis to claim such privilege.”  The author is not aware of a case in which fees were awarded either way.

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C. Waiver or limits to testimony

K.S.A. 60-437 provides that a witness who would otherwise be in a position to claim a privilege with respect to his or her testimony will be deemed to have waived the privilege if the witness “without coercion, or without any trickery, deception, or fraud practiced against him or her, and with knowledge of the privilege, made disclosure of any part of the matter or consented to such a disclosure made by anyone.”  See, also, Federal Rules of Evidence § 501.

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1. Is the privilege waivable?

Yes. See Section VI.C.

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2. Elements of waiver

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a. Disclosure of confidential source's name

There is no statutory or case law addressing this issue. Pursuant to the statute noted above, however, the author believes that most state courts would view this as a waiver of the privilege.

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b. Disclosure of non-confidential source's name

There is no statutory or case law addressing this issue. Pursuant to the statute noted above, however, the author believes that most state courts would view this as a waiver of the privilege.

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c. Partial disclosure of information

There is no statutory or case law specifically addressing this issue. Based on the privilege statute quoted above, however, the author believes that most state courts would view a partial disclosure as partial waiver of the privilege, at a minimum.

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d. Other elements

There is no statutory or case law addressing this issue.

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3. Agreement to partially testify act as waiver?

There is no statutory or case law addressing this issue.

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VII. What constitutes compliance?

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A. Newspaper articles

There is no statutory or case law specifically addressing the issue of whether newspapers are self-authenticating. If a court requires testimony authenticating a copy of the newspaper in issue, a librarian or archivist should be able to furnish the needed testimony consistent with the requirements of state law.

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B. Broadcast materials

Unless waived, a representative of the broadcaster must appear to furnish testimony authenticating the video tape. There are no specific rules identifying who the representative should be.

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C. Testimony vs. affidavits

An affidavit can take the place of in-court testimony only if the litigants agree.

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D. Non-compliance remedies

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1. Civil contempt

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a. Fines

There is no statutory or case law specifically addressing the issue of whether fines are capped. There are no recent examples of fines being levied against reporters who refuse to comply.

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b. Jail

There is no statutory or case law discussing the issue of whether jail sentences in connection with contempt citations against reporters are limited. There have been no recent examples of reporters who went to jail rather than disclose the names of confidential sources or information. The case law generally applicable in contempt cases suggests that imprisonment until the court’s order is obeyed is appropriate. In re Conservatorship of McRoy, 19 Kan. App.2d 31, 861 P.2d 1378 (1993).

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2. Criminal contempt

There is no statutory or case law addressing this issue. The author is unaware of any instance in which a criminal contempt conviction against a reporter has been pursued after a civil contempt finding was dissolved.

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3. Other remedies

There is no statutory or case law specifically addressing the issue of what other remedies might be available. As noted above, however, there is reason to believe that both state and federal courts will impose media-specific sanctions in cases in which the media representative is a defendant.

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VIII. Appealing

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A. Timing

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1. Interlocutory appeals

There have been no decisions regarding this issue since the legislation implementing the Kansas shield law was passed.  The shield statutes themselves do not provide that an aggrieved party has a right to an interlocutory appeal from an adverse decision.  This suggests that it is likely that Kansas courts would require a reporter to be held in contempt prior to pursuing an appeal. If a journalist is ordered to testify or disclose information and complies with the court’s order, it is likely an appellate court would view an appeal from the adverse decision as moot.  Requests for interlocutory appeals in civil cases must be filed within ten days of the entry of the order appealed from. Kansas Supreme Court Rule 4.01. Acceptance of such requests is discretionary.

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2. Expedited appeals

The rules of appellate practice pertaining to expedited appeals apply to a limited class of cases, not including those involving journalist privilege issues or the shield law. See, Kansas Supreme Court Rule 10.01 and 10.02.

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B. Procedure

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1. To whom is the appeal made?

Appeals from municipal courts are made to district courts, where the proceedings are de novo. Appeals from an adverse decision in a district court are pursued in the Kansas Court of Appeals and/or the Kansas Supreme Court. Many constitutional issues are resolved in the Kansas Supreme Court in the first instance.

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2. Stays pending appeal

A reporter affected by an adverse decision is required to seek a stay in the trial court. The fact that a constitutional issue is involved does not change the standard applied in determining whether to grant a stay, which is ordinarily a matter of trial court discretion.

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3. Nature of appeal

The appeal will be similar to any other appeal from a contempt conviction.

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4. Standard of review

Contempt convictions are generally reviewed pursuant to an abuse of discretion standard. State v. William, 20 Kan. App.2d 185, 884 P.2d 755 (1994). As a practical matter, the review focuses on whether the records show conduct constituting contempt.

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5. Addressing mootness questions

There is no statutory or case law addressing this issue.

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6. Relief

A reporter’s attorney should seek a reversal of the contempt conviction and a discharge.  If an interlocutory appeal from an adverse decision is allowed, and the district court stays the order during the pendency of the appeal, the aggrieved journalist would seek reversal of the district court’s order compelling the journalist to testify or produce information.

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IX. Other issues

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A. Newsroom searches

The Privacy Protection Act has not been applied in connection with a newsroom search in Kansas, to the author’s knowledge.

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B. Separation orders

There is no statutory or case law addressing this issue.

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C. Third-party subpoenas

There is no statutory or case law addressing this issue.

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D. The source's rights and interests

There is no statutory or case law addressing this issue.

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