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Louisiana

Reporters Privilege Compendium


Author

Mary Ellen Roy
roym@phelps.com
Dan Zimmerman
dan.zimmerman@phelps.com
Phelps Dunbar LLP
365 Canal Street, Suite 2000
New Orleans, LA 70130-3245
(504) 566-131

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I. Introduction: History & Background

As a matter of state law, the reporter's privilege in Louisiana is quite strong. The reporter's shield statute applies to unpublished information as well as to confidential sources. La. R.S. 45:1451 et seq. In addition, the State Supreme Court has held that a reporter's privilege applies to unpublished information as a matter of state and federal constitutional law. See In re Grand Jury Proceedings (Ronald Ridenhour), 520 So. 2d 372 (La. 1988). To our knowledge, reporters have not been jailed or fined for invoking the reporter's privilege in Louisiana.

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II. Authority for and source of the right

A. Shield law statute

Louisiana has enacted two shield laws. The first statute dates from 1964 and protects reporters from being forced to disclose their sources. La. R.S. 45:1451-1454. "No reporter shall be compelled to disclose in any administrative, judicial or legislative proceeding or anywhere else the identity of any informant or any source of information obtained by him from another person while acting as a reporter." La. R.S. 45:1452. Reporter is defined broadly as "any person regularly engaged in the business of collecting, writing or editing news for publication through a news media." La. R.S. 45:1451.

Once the reporter claims the privilege, the party seeking the information may seek a judicial order to revoke the privilege by setting forth in writing why disclosure is essential to the "protection of the public interest." After a hearing with both the party seeking the order and the reporter, the court may only grant such an order if "the disclosure is essential to the public interest." La. R.S. 45:1453.

The second statute, enacted in 1989, provides protections for reporters refusing to disclose unpublished information. La. R.S. 45:1459. The party seeking the information must make a "clear and specific showing" that the news is (1) highly material and relevant; (2) critical or necessary to the maintenance of the party's claim, defense or proof of an issue material thereto; and (3) not obtainable from any alternative source. La. R.S. 45:1459.

No reported Louisiana state appellate case has ordered a reporter to disclose information under the state shield laws. See In re Grand Jury Proceedings (Ronald Ridenhour), 520 So. 2d 372 (La. 1988); In re Burns, 484 So.2d 658 (La. 1986); Becnel v. Lucia, 420 So.2d 1172 (La. App. 5th Cir. 1982).

The intent of the shield law is to "encourage divulgence of news by informants who might otherwise hesitate to disclose matters of public import for fear of unfavorable publicity or the possibility of retribution." Dumez v. Houma Municipal Fire and Police Civil Service Bd., 341 So.2d 1206, 1208 (La. App. 1st Cir. 1976).

The confidential source shield law, La. R.S. 45:1451 - 1454, was created by Act 211 of 1964; the subpoena rules, La. R.S. 45:1455 - 1458 were created by Act 803 of 1987; the non-confidential privilege, La. R.S. 45:1459, was created by Act 705 of 1989.

The Louisiana Press Association was a major proponent of the state shield law.

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B. State constitutional provision

The Louisiana constitutional reporter's privilege is derived from Article 1, Section 7 of the Louisiana Constitution. This Section, entitled Freedom of Expression, is closely related to the First Amendment to the U.S. Constitution. Section 7 provides: "No law shall curtail or restrain the freedom of speech or of the press. Every person may speak, write, and publish his sentiments on any subject, but is responsible for abuse of that freedom." La. Const. art. 1, § 7.

In In re Grand Jury Proceedings (Ronald Ridenhour), the Louisiana Supreme Court found the state and federal Constitutional guarantees to be equivalent. "For purposes of this issue [reporter's privilege], we will consider the two constitutions together. The information is either protected by both or not protected by either." 520 So. 2d at 374 n.10. Ridenhour found that the state and federal constitutional reporter's privilege applied to unpublished information prior to the enactment of the statutory reporter's privilege for unpublished information.

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C. Federal constitutional provision

The reporter's privilege originates in the First Amendment to the U.S. Constitution which was made applicable to the states by the Fourteenth Amendment. It provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances." U.S. Const. Amend. I.

In In re Grand Jury Proceedings (Ronald Ridenhour), the Louisiana Supreme Court found the state and federal Constitutional guarantees to be equivalent. "For purposes of this issue [reporter's privilege], we will consider the two constitutions together. The information is either protected by both or not protected by either." 520 So. 2d at 374 n.10. Ridenhour found that the state and federal constitutional reporter's privilege applied to unpublished information prior to the enactment of the statutory reporter's privilege for unpublished information.

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D. Other sources

There are no other known sources of law supporting a reporter's privilege in Louisiana.

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III. Scope of protection

A. Generally

Louisiana's shield law provides for a broad, yet qualified, privilege for reporters and the news media. The privilege protects not only the name of the confidential source, but any disclosure of information, including the place of employment, that would assist in identifying the source. Burns, 484 So.2d at 659. Furthermore, the reporter's privilege is not limited to sources and informants who give information that is published. The privilege applies to sources of nonpublished information as well. Dumez, 341 So.2d at 1208. In addition, Section 1459 of the Louisiana shield law outlines a qualified protection for unpublished non-confidential news. La. R.S. 45:1459.

Thus, as a matter of state statutory and constitutional law, Louisiana's reporter's privilege is stronger than in many states.

The federal Fifth Circuit has interpreted the federal constitutional reporter's privilege more narrowly. At least in civil cases involving a confidential source, the Fifth Circuit applies a three-part test. See Miller v. Transamerican Press, 621 F.2d 721, 725 (5th Cir. 1980); In re Selcraig, 705 F.2d 789, 792 (5th Cir. 1983). The Fifth Circuit has refused, however, to extend the reporter's privilege to non-confidential sources in criminal cases. See U.S. v. Smith, 135 F. 3d 963 (5th Cir. 1998).

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B. Absolute or qualified privilege

The reporter's privilege as recognized by the Louisiana federal and state courts is not absolute. See, e.g., Miller, 621 F.2d at 725; Selcraig, 705 F.2d at 792. According to the federal courts, the privilege at least as to confidential sources in civil cases may be overcome if the party seeking disclosure shows that the information is relevant, not available by alternative means and that the party has a compelling interest in the information. Miller, 621 F.2d at 726.

The Louisiana shield law defines a broader reporter's privilege, but one that is still conditional or qualified. See La. R.S. 45:1452, 45:1459. The party seeking the information must make a "clear and specific showing" that the news is (1) highly material and relevant; (2) critical or necessary to the maintenance of the party's claim, defense or proof of an issue material thereto; and (3) not obtainable from any alternative source. La. R.S. 45:1459. When applying the constitutional standard, state courts must balance the "public interest in having all relevant testimony with the possible 'chilling effect' the disclosure will have on the freedom of the press and the ability to gather the news" when determining whether to require disclosure. Ridenhour, 520 So.2d at 376.

When confidential source information is requested, the court may grant an order requiring disclosure only if "the disclosure is essential to the public interest." La. R.S. 45:1453. While not absolute, this standard is stronger than the qualified privilege for unpublished information generally.

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C. Type of case

1. Civil

For federal civil cases, the reporter's privilege discussed in Miller applies. This privilege is not absolute and may be overcome if the party seeking disclosure proves that the information is relevant, is not available by alternative means, and that the party has a compelling interest in the information. Miller, 621 F.2d at 726; see also Selcraig, 705 F.2d at 792. The Fifth Circuit has not addressed whether reporters have a privilege not to reveal non-confidential unpublished information in civil proceedings. The Fifth Circuit has recognized that because of the public's lesser interest in the "outcome of civil litigation . . . the interests of the press may weigh far more heavily in favor of some sort of privilege" in a civil case. Smith, 135 F.3d at 972.

Under Louisiana state law, the provisions of the shield laws apply to any "administrative, judicial or legislative" proceeding in Louisiana, civil or criminal. La. R.S. 45:1452.

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2. Criminal

In Smith, the Fifth Circuit held that the reporter's privilege, at least with regards to non-confidential information, is inapplicable in criminal cases. Id. at 972. The court distinguished Miller because of the public's greater interest in criminal proceedings and the non-confidential nature of the subpoenaed interview. Id. at 972.

Applying federal and state constitutional law, the Louisiana Supreme Court created an exemption from the reporter's privilege if the reporter witnesses criminal activity or has physical evidence of a crime. Ridenhour, 520 So.2d at 376.

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3. Grand jury

Under the Louisiana shield law, a grand jury may not serve a subpoena upon a reporter unless the prosecutor has certified in writing that the information sought by the subpoena is "highly material and relevant; bears directly on the guilt or innocence of the accused; and is not obtainable from any alternative source." La. R.S. 45:1459(D)(1). A reporter may assert a qualified privilege and refuse to answer questions before a grand jury unless the reporter has witnessed criminal activity or has physical evidence of a crime. Ridenhour, 520 So.2d at 376. The party seeking information must then show that disclosure is necessary to the protection of the public interest and that the subpoena was issued in good faith and not for purposes of harassment. Once such a showing has been made, the trial judge should balance the public interest in having all relevant testimony with the possible chilling effect that disclosure will have on freedom of press and the ability to gather news. Id.

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D. Information and/or identity of source

The Louisiana statutory reporter's privilege for sources includes not only the name of the source, but "any disclosure of information, such as place of employment, that would tend to identify him." Burns, 484 So.2d at 659.

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E. Confidential and/or nonconfidential information

In dicta, the Fifth Circuit explained that confidentiality may be a requirement for the reporter's privilege. See Smith, 135 F. 3d at 972. In Smith, the court refused to grant a privilege not to disclose non-confidential information in a criminal case. The court cited the source's lack of confidentiality as one ground on which to distinguish Miller. Id. The Fifth Circuit has not yet addressed whether the reporter's privilege applies to non-confidential information in a civil proceeding.

The Louisiana shield law provides a qualified privilege for non-confidential news. La. R.S. 45:1459.

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F. Published and/or non-published material

The Fifth Circuit refused to recognize a non-confidential work product privilege for untelevised interview footage in U.S. v. Smith, a criminal case. 135 F.3d at 969.

The Louisiana First Circuit Court of Appeals has held that the shield law is not limited to published information. "While the statute limits the privilege to the identity of informants and the source of information, it does not restrict the privilege to identity of informants and sources of information published." Dumez, 341 So.2d at 1208. Furthermore, Section 1459, added to the statute in 1989, explicitly provides for a qualified privilege for "news which was not published or broadcast but was obtained or prepared by such person in the course of gathering or obtaining news." La. R.S. 45:1459(B)(1).

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G. Reporter's personal observations

The Louisiana Supreme Court carved out an exception to the reporter's privilege when the reporter has witnessed any criminal activity or has physical evidence of a crime. Ridenhour, 520 So.2d at 376. If a reporter is a witness to a crime, he is unable to move to quash the subpoena seeking disclosure and may not refuse to answer questions. Id.

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H. Media as a party

The Fifth Circuit refused to recognize a distinction between a non-party media witness and a media party "invoking the qualified privilege to protect himself or his publication against a libel suit." Selcraig, 705 F.2d at 798. Even though the reporter was not a party to the suit, the fact that he was a witness to a material fact made the Miller test for media parties applicable. Id. at 799.

No reported state court reporter's privilege decision in Louisiana has made a distinction based on the media being a party. The shield law protecting unpublished non-confidential information states that the privilege applies in "any civil or criminal proceeding." La. R.S. 45:1459(B)(1).

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I. Defamation actions

Miller held that the reporter's privilege is not absolute and may have to yield in the context of a libel case. The court also found, however, a greater interest in protecting the confidentiality of journalists' sources in libel cases than in a grand jury context. Miller, 621 F.2d at 725. To overcome the privilege in a libel case, the party seeking disclosure of a confidential informant's identity must establish by "substantial evidence that the statement attributed to the informant was published and is both factually untrue and defamatory; that reasonable efforts have been made to learn the identity of the reporter's informant by alternative means; that no other reasonable means is available; and that knowledge of the identity of the informant is necessary to proper preparation and presentation of the case." Selcraig, 705 F.2d at 792.

According to the Louisiana shield law, if the reporter's privilege is claimed in a defamation suit, the burden of proof remains with the reporter or news media to assert and sustain a legal defense of good faith. La. R.S. 45:1454. The defense of "good faith" arises in the context of the assertion of a "qualified privilege" in cases in which the defendant has an interest or duty in communicating with another person with a corresponding interest or duty. Kennedy v. Sheriff of East Baton Rouge, 935 So.2d 669 681 (La. 2006). In such cases, the plaintiff bears the burden of proof to establish abuse of the qualified privilege, i.e., that the allegedly defamatory statements "were made with reckless disregard for whether they were true or false. Id. at 683, 688. Thus, La. R.S. 45:1454, which states that the burden of proof "shall be on the reporter or news media," appears to clash with the latest state Supreme Court decision concerning the good faith defense.

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IV. Who is covered

A. Statutory and case law definitions

1. Traditional news gatherers

a. Reporter

Louisiana's shield law defines reporter broadly: "Any person regularly engaged in the business of collecting, writing or editing news for publication through a news media," including all "persons who were previously connected with any news media including any newspaper or other periodical issued at regular intervals and having a paid general circulation; press associations; wire service; radio; television; and persons or corporations engaged in the making of news reels or other motion picture news for public showing." La. R.S. 45:1451.

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b. Editor

Louisiana courts have broadly interpreted those who are included under the rubric of the state's statutory reporter's privilege. Since a newspaper is "engaged in the business of collecting, writing and editing news for public dissemination" and the owner-publisher is engaged in the same functions, the owner-publisher, or anyone in a similar position, is considered a reporter within the meaning of the statute. Becnel, 420 So.2d at 1175; see also La. R.S. 45:1451.

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c. News

The Louisiana shield law defines news as "any written, oral, pictorial, photographic, electronic, or other information or communication, whether or not recorded, concerning local, national, or worldwide events or other matters of public concern or public interest or affecting the public welfare." La. R.S. 45:1459(A).

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d. Photo journalist

Neither the state nor federal courts in Louisiana have addressed the issue of a reporter's privilege as it relates to photo journalists. However, the shield law's definition of "reporter" includes "any person regularly engaged in the business of collecting . . . for publication through a news media," and the definition of "news media" includes television as well as persons "engaged in the making of news reels or other motion picture news." La. R.S. 45:1451. In addition, the definition of "news" includes "photographic" information. La. R.S. 45:1459(A). Moreover, photographers are expressly included within the statutory protection given to reporters and news media in their response to subpoenas for unpublished information. La. R.S. 45:1459(B)(1).

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e. News organization/medium

For the purposes of the Louisiana shield law relating to sources, the statute defines news media as "any newspaper or other periodical issued at regular intervals and having a paid general circulation; press associations; wire service; radio; television; and persons or corporations engaged in the making of news reels or other motion picture news for public showing." La. R.S. 45:1451. "Reporter" is defined as "any person regularly engaged in the business of collecting, writing or editing news for publication through a news media." Id. An argument can be made that a news organization is a "reporter" because it is a "person regularly engaged in the business of collecting, writing or editing news. . . ."

While no Louisiana state court has addressed directly the reporter's privilege as it relates to a news organization, it appears that the privilege may be invoked by a newspaper or other news medium. See Becnel, 420 So.2d at 1175 ("The statutes define reporter as 'any person regularly engaged in the business of collecting, writing and editing news for publication through a news media.' . . . Without a doubt, a newspaper is engaged in the business of collecting, writing and editing news for public dissemination.")(emphasis in original).

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2. Others, including non-traditional news gatherers

A Louisiana Court of Appeal relied on Ridenhour's interpretation of the state's shield law to grant a qualified reporter's testimonial privilege to an investigative nonfiction book author. Louisiana v. Fontanille, 1994 La. App. LEXIS 191, *7 (La. App. 5th Cir. 1994).

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B. Whose privilege is it?

According to Louisiana law, the reporter's privilege belongs to the reporter, news organization, photographer, custodian of records, or any other media representative upon whom the subpoena seeking disclosure is served and may be asserted by that person. La. R.S. 45:1459(B). In every reported Louisiana state case, the subpoena was served on the reporter directly. See Ridenhour, 520 So.2d at 373; Burns 484 So.2d at 658; Dumez 341 So.2d at 1207; see also Becnel 420 So.2d at 1175 (owner-publisher). In Smith, because subpoenas were issued to the reporter and his television station employer, the Fifth Circuit analyzed the reporter's privilege as applied to both collectively. 135 F.2d at 966. There is no case law in Louisiana regarding whether the privilege also may be asserted by the source.

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V. Procedures for issuing and contesting subpoenas

A. What subpoena server must do

1. Service of subpoena, time

A subpoena issued to any news media organization, reporter, custodian of records, photographer, or other representative, shall be served at least ten days prior to the return date specified in the subpoena unless otherwise ordered by the court, upon a showing of good cause. Any person served with the subpoena is able to seek an order continuing the return date or quashing the subpoena because of the need for additional time in order to respond. La. R.S. 45:1456.

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2. Deposit of security

Upon receipt of a subpoena, the news media party must notify the party requesting the subpoena of the "reasonable cost of compliance with the subpoena and the method of calculating the cost." La. R.S. 45:1457. After receiving notification of the cost, the party requesting the subpoena must deposit money into the court's registry to cover the costs not less than two days prior to the return date specified in the subpoena. If the money is not timely deposited, the subpoenaed party may file an affidavit explaining that fact and the party will be excused from further compliance with the subpoena. Id.

The cost of compliance calculated by the subpoenaed party shall be presumed reasonable unless the party requesting the subpoena requests a hearing. If the court finds after the hearing that the cost is not reasonable, the court shall make the necessary adjustment. The court also may grant attorneys' fees and expenses to the prevailing party in this hearing. La. R.S. 45:1457.

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3. Filing of affidavit

Louisiana's shield law exempts the subpoenaed media party from appearing or testifying in response to a subpoena in order to confirm the circulation or broadcast audience of the news media organization or to confirm the publication or broadcast of specified materials if the media party provides the court with an affidavit. La. R.S. 45:1455. The statute also outlines the substantive requirements of the affidavit. La. R.S. 45:1455(B).

The statute does not require that the party serving the subpoena execute an affidavit.

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4. Judicial approval

There is no provision in the statutes or case law for prior "judicial approval" of subpoenas.

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5. Service of police or other administrative subpoenas

The provisions relating to the service of subpoena apply to subpoenas issued "in connection with all legislative hearings, administrative proceedings, grand jury hearings" as well as subpoenas to appear in front of the attorney general and district attorneys. La. R.S. 45:1458.

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B. How to Quash

1. Contact other party first

If the subpoenaed party wishes to quash the subpoena, he must serve written objection specifying the grounds for his objection upon the attorney designated in the subpoena within ten days after service, or on or before the time directed in the subpoena, if compliance is required within fewer than ten days. La. R.S. 45:1459(C). Other than the service of written objection, there is no requirement that the other party be contacted.

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2. Filing an objection or a notice of intent

The subpoenaed party must serve written objection specifying the grounds for his objection upon the attorney seeking the subpoena within ten days after service, or on or before the time directed in the subpoena, if compliance is required within fewer than ten days. La. R.S. 45:1459(C). A "notice of intent" to quash is not required.

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3. File a motion to quash

a. Which court?

The state reporter's privilege statute does not address the issue of proper venue for filing a motion to quash. When the reporter claims the statutory privilege, the party seeking to revoke the privilege may apply to the district court of the parish in which the reporter resides to seek an order revoking the privilege. If the reporter resides outside of Louisiana, the application should be made to the district court of the parish where the matter in which the information is sought is pending. La. R.S. 45:1453. By analogy, this provision suggests that the proper venue for a motion to quash may be in the district court of the parish in which the reporter resides or in the district court of the parish where the matter in which the information is sought is pending.

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b. Motion to compel

Once an objection is made, the party serving the subpoena is not entitled to compliance except by an order of the court from which the subpoena was issued. The party serving the subpoena may, after objection is made, move for an order compelling compliance with the subpoena. La. R.S. 45:1459(C).

In order for the court to compel compliance with the subpoena, the court must find that the party seeking the information has made a "clear and specific showing that the news is highly material and relevant; is critical and necessary to the maintenance of a party's claim; and is not obtainable from any alternative source." La. R.S. 45:1459(B).

Decided one year before Section 1459 of the shield law was codified, Ridenhour outlined the process for compelling compliance with a subpoena. Once the reporter moves to quash a subpoena, the party seeking information regarding a source must show that the disclosure is essential to the public interest. Ridenhour, 520 So.2d at 374. If the subpoena seeks other unpublished information, the party seeking the information must show that the disclosure is necessary to the protection of the public interest and that the subpoena was issued in good faith and not to harass. Id. at 376. After this showing is made, the judge must balance the public interest in having the testimony with the potential "chilling effect" that disclosure will have on the freedom of the press and the ability to gather news. Special attention should be paid to ensure that the information is not a "mere fishing expedition" and more weight should be given to the reporter's interest when the information relates to an investigation or criticism of the government. Id.

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c. Timing

A party planning to file a motion to quash should try to file it as soon as possible if the subpoena deadline is near.

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d. Language

There is no "stock language" or "preferred text" for a motion to quash.

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e. Additional material

Affidavits and other exhibits attached to a motion to quash indicating the burdensome of subpoenas addressed to the press could be helpful because courts often find it hard to accept the burdensomeness argument.

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4. In camera review

The Fifth Circuit has applied the reporter's privilege equally to disclosures made in camera to the court. Before requiring in camera disclosure, the party seeking disclosure must pass the Miller test by demonstrating the party's compelling interest in the information; that the information cannot be obtained from another source; and that the information is relevant. Selcraig, 705 F.2d at 798-99.

However, in Cinel, the District Court held that Section 45:1459 of the Louisiana shield law does not apply to information sought by the court for sealed, in camera, inspection. Cinel v. Connick, 792 F. Supp. 492, 499 (E.D. La. 1992). The court balanced the need for the information against the "chilling effect" that such "extremely limited disclosure" could have on the media's First Amendment rights as defined in Ridenhour. Because the media defendants could not prove such disclosure would "chill" freedom of the press, the Court held that the privilege did not prevent in camera and under seal disclosure of inventories of unpublished information. Id. at 500.

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a. Necessity

The Louisiana reporter's privilege statute does not require in camera review.

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In Louisiana state courts, a stay pending appeal is automatic regardless of whether the reporter consents to in camera review. La. R.S. 45:1459(E).

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c. Consequences of refusing

5. Briefing schedule

There is no set briefing schedule for a motion to quash. In civil court, the uniform local rules provide that opposition memoranda are to be filed eight days prior to a hearing date, but subpoena motions (either to compel or to quash) often are filed so close to the hearing date, that the general rule likely would not be honored in most instances.

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6. Amicus briefs

All levels of courts can accept amicus briefs, but it is extremely rare at the district court level. At the appellate level, the Louisiana Press Association is most likely to file or join an amicus brief in support of a reporter's privilege being invoked. Will Chapman is executive director and Mike Rood is general manager, and can be reached at 404 Europa Street, Baton Rouge, LA 70802, 225-344-9309.

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VI. Substantive law on contesting subpoenas

A. Burden, standard of proof

Once a news media member demonstrates that he is covered under the privilege, the burden of proof lies on the party seeking the information. La. R.S. 45:1459(B)(1). The burden of proof rests on the subpoenaing party to make a "clear and convincing showing" that the privilege does not apply. Id.

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B. Elements

The party seeking an order to override the privilege protecting disclosure of sources shall set forth in writing the reason why the disclosure is essential to the protection of the public interest. La. R.S. 45:1453. The court will grant the order only when the court finds that the disclosure "is essential to the public interest." Id. To compel the disclosure of unpublished information generally, the party that has issued the subpoena must demonstrate that the information "(a) is highly material and relevant; (b) is critical or necessary to the maintenance of a party's claim, defense, or proof of an issue material thereto; and (c) is not obtainable from any alternative source." La. R.S. 45:1459(B)(1).

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1. Relevance of material to case at bar

Under state law, the material must be "highly material and relevant" to the case at bar. La. R.S. 45:1459(B)(1)(a). In In re Selcraig, 705 F.2d 789, 792 (5th Cir. 1983), the United States Fifth Circuit held that "knowledge of the identity of the informant must be necessary to proper presentation and preparation of the case before the privilege can be overcome."

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2. Material unavailable from other sources

Under the state reporter's privilege statute, the unpublished material being sought must not be "obtainable from any alternative source." La. R.S. 45:1459 (B)(1)(c). Appellate courts have remanded cases to determine if the material is truly unavailable. In Harvey v. Elder, 626 So.2d 372, 374 (La. App. 4th Cir. 1993), a news station contended on appeal that plaintiffs had failed to make a "clear and specific showing" in the trial court that the materials being sought were not obtainable from any alternative source. The case was remanded because the record did not contain a transcript of an evidentiary hearing before the trial court, prohibiting the appellate court from determining whether the requisite showing had been made. Id.

In Miller v. Transamerican Press, Inc., 621 F.2d 721 (5th Cir. 1980), the Fifth Circuit held that the reporter's privilege was overcome because the information sought was the only way that the defendant could establish malice to prove his case for defamation.

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a. How exhaustive must search be?

There is no statutory language or Louisiana case law addressing this issue.

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

There is no specific test that the subpoenaing party must pass to demonstrate that they have already conducted a search for the material outside of subpoenaing the news media member. However, the court will look to see if the "information is not obtainable from any alternative source." La. R.S. 45:1459 B(2)(b).

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c. Source is an eyewitness to a crime

There is no statutory language or Louisiana case law addressing this issue.

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3. Balancing of interests

In Ridenhour, the Supreme Court of Louisiana stated that once a showing has been made by the party seeking the information that the disclosure is necessary to the protection of the public interest, the trial judge should balance the public interest in having all relevant testimony with the possible "chilling effect" the disclosure will have on the freedom of the press and the ability to gather news. Id. The Court stated that consideration should be given to insure that the party seeking the information is not "attempting to annex the journalistic profession as an investigative arm of the government . . . Consideration should also be given to the idea that the press' most important function is to question and investigate the government. Therefore, additional weight should be given to the reporter's interest when the information concerns his investigation of or criticism of the government." Id.

In Smith, the United States Fifth Circuit stated that the "public has much less of an interest in the outcome of civil litigation than in criminal litigation. In civil cases, the interests of the press may weigh far more heavily in favor of some sort of privilege." Smith, 135 F.3d at 972.

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4. Subpoena not overbroad or unduly burdensome

The court in which an action is pending "in its discretion may vacate or modify the subpoena [duces tecum] if it is unreasonable or oppressive." La. Code Civ. Proc. 1354.

In Smith, the United States Fifth Circuit stated that the press has a case-specific "relevant and protectible interest in not being unduly burdened, as for example, by overly broad subpoenas for large amounts of data of dubious relevance." Id. at 970.

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5. Threat to human life

There is no statutory language or Louisiana case law addressing this issue.

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6. Material is not cumulative

Under the shield law, the party seeking unpublished information must show that the material is not "obtainable from any alternative source." La. R.S. 45:1459(B)(1)(c).

In Smith, the United States Fifth Circuit found that the requested evidence concerning a defendant's guilt was not considered cumulative even though the government already possessed the defendant's statements because "multiple contradictory stories told by a defendant can demonstrate a consciousness of guilt." Smith, 135 F. 3d at 972.

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7. Civil/criminal rules of procedure

The general practice is to contest a frivolous or unduly burdensome subpoena with a motion to quash.

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8. Other elements

The court shall order disclosure only of such portion of unpublished information sought as to which the three-part showing is made and "shall support such order with clear and specific findings made after a contradictory hearing." La. R.S. 45:1459.

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C. Waiver or limits to testimony

1. Is the privilege waivable?

In Becnel v. Lucia, 420 So.2d 1173, 1174 (La. App. 5th Cir. 1982), the court stated that "an owner-publisher or anyone similarly situated must be considered a 'reporter'" thereby enabling that person to claim the reporter's privilege. Therefore, disclosure of a confidential source's name to an editor should not be considered a waiver of the privilege because an editor can claim the privilege for himself.

There is no other statutory language or Louisiana case law indicating whether the reporter's privilege may be waived by the reporter.

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2. Elements of waiver

a. Disclosure of confidential source's name

In Pressey v. Patterson, 898 F.2d 1018, 1022 n.4 (5th Cir. 1990), the Fifth Circuit expressed "doubts" about whether a district court was correct in enforcing a reporter's privilege for interview tapes and mentioned in dicta that the nonconfidential source "had expressly waived the reporter's privilege."

There is no other statutory language or Louisiana case law addressing whether disclosure of a confidential source's name waives the reporter's privilege.

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b. Disclosure of non-confidential source's name

There is no statutory language or Louisiana case law addressing this issue.

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c. Partial disclosure of information

In Cinel v. Connick, the court held that "a court-initiated order for a sealed, in camera, production of information," does not waive the reporter's privilege. 792 F. Supp. at 498.

There is no other statutory language or Louisiana case law addressing whether the partial disclosure of information waives the privilege.

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d. Other elements

There is no statutory language or Louisiana case law addressing this issue.

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3. Agreement to partially testify act as waiver?

There is no statutory language or Louisiana case law addressing this issue.

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VII. What constitutes compliance?

A. Newspaper articles

La. R.S. 45:1455 provides that "it shall not be necessary for the news media organization, the reporter, the custodian of records, the photographer, or the representative thus subpoenaed to appear or testify in response to the subpoena . . . to confirm the publication or broadcast of specified materials, if the reporter, custodian of records, photographer, or other representative of the news media organization delivers by registered mail or by hand, before or at the time specified in the subpoena, an affidavit . . . together with any documents or records described in the subpoena to the clerk of the court or other tribunal, or . . . with respect to a deposition subpoena, to the party requesting the issuance of the subpoena." The affidavit shall state the name of the proceeding and docket number; the name of the affiant and business title; the dates of publication or broadcast records searched and the dates of publication or broadcast of the documents or records actually produced; a statement that the documents or records produced were published or broadcast by the news media organization; if requested, a statement summarizing the circulation or broadcast audience of the news media organization; if requested, a statement describing the placement of an article within a publication; and an itemization of the costs of complying with the subpoena. La. R.S. 45:1455(B).

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B. Broadcast materials

The same rules apply for broadcast materials as for newspaper articles. See § VII.A above and R.S. 45:1455.

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C. Testimony vs. affidavits

A sworn affidavit can take the place of in-court testimony to confirm that an article was published, see La. R.S. 45:1455, but not to confirm that the article was true and accurate as published.

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D. Non-compliance remedies

"A person who, without reasonable excuse, fails to obey a subpoena may be adjudged in contempt of the court which issued the subpoena. The court may also order a recalcitrant witness to be attached and brought to court forthwith on a designated day." La. Code Civ. Proc. art. 1357; see also La. Code Civ. Proc. art. 223 ("A person who has committed a direct contempt of court may be found guilty and punished therefor by the court forthwith, without any trial other than affording him an opportunity to be heard orally by way of defense or mitigation. The court shall render an order reciting the facts constituting the contempt, adjudging the person guilty thereof, and specifying the punishment imposed."); La. Code Civ. Proc. art. 224 ("Wilful disobedience of any lawful judgment, order, mandate, writ or process of the court constitutes a constructive contempt of court."); La. Code Civ. Proc. art. 225 ("A person charged with committing a constructive contempt of a court of appeal may be found guilty thereof and punished therefore after receiving a notice to show cause, by brief, to be filed not less than forty-eight hours from the date the person receives such notice, why he should not be found guilty of contempt and punished accordingly. The person so charged shall be granted an oral hearing on the charge if he submits a written request to the clerk of the appellate court within forty-eight hours after receiving notice of the charge . . . if the person charged with contempt is found guilty the court shall render an order reciting the facts constituting the contempt, adjudging the person charged with contempt guilty thereof, and specifying the punishment imposed.").

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1. Civil contempt

a. Fines

"The supreme court, the courts of appeal, the district courts . . . may punish a person adjudged guilty of contempt of court . . . for any contempt of court [other than that of direct contempt committed by an attorney, contempt for disobeying a lawful restraining order, or preliminary or permanent injunction, or contempt for deliberate refusal to perform an act which is within the power of the offender to perform] by a fine of not more than five hundred dollars, or imprisonment for not more than three months." La. R.S. 13:4611(1)(d).

We are not aware of recent examples of fines being levied against reporters who refused to comply with a valid, upheld subpoena.

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b. Jail

"The supreme court, the courts of appeal, the district courts . . . may punish a person adjudged guilty of contempt of court . . . for a deliberate refusal to perform an act which is yet within the power of the offender to perform, by imprisonment until he performs the act." La. R.S. 13:4611 (1)(c).

"When a contempt of court consists of the omission to perform an act which is yet in the power of the person charged with contempt to perform, he may be imprisoned until he performs, and in such a case this shall be specified in the court's order." La. Code Civ. Proc. art. 226.

We are not aware of recent examples in Louisiana of reporters going to jail who refused to comply with a valid, upheld subpoena. In Burns, the Louisiana Supreme Court vacated a district court judgment imprisoning a reporter for refusing to identify the place of employment of a confidential source. Burns, supra.

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2. Criminal contempt

In Burns, a reporter was held in contempt of court and imprisoned for refusing to answer questions about the source of his information which related to the existence and details of a confession by a murder defendant. Burns, 484 So.2d at 658. The Supreme Court vacated the judgment of the district court.

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3. Other remedies

"A person who, without reasonable excuse, fails to obey a subpoena may be adjudged in contempt of the court which issued the subpoena. The court may also order a recalcitrant witness to be attached and brought to court forthwith or on a designated day." La. Code Civ. Proc. 1357.

If the reporter's privilege is claimed in a defamation suit and "a legal defense of good faith has been asserted by a reporter" with respect to an issue upon which the reporter alleges to have obtained information from a confidential source, the burden of proof shall be on the reporter to sustain this defense. La. R.S. 45:1454.

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VIII. Appealing

A. Timing

1. Interlocutory appeals

An order revoking the privilege, ordering disclosure, or compelling compliance with a subpoena is appealable under Code of Civil Procedure Article 2083. La. R.S. 45:1453, 45:1459(E).

Article 2083 states "an appeal may be taken from a final judgment rendered in cases in which appeals are given by law whether rendered after hearing or by default, and from an interlocutory judgment which may cause irreparable injury."

The delay for taking a devolutive appeal (one which does not suspend the judgment) is sixty (60) days; the delay for taking a suspensive appeal (one which does suspend the judgment) is thirty (30) days. La. Code Civ. Proc. 2087, 2123.

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2. Expedited appeals

Because the reporter's privilege remains in full force and effect pending any appeal, see La. R.S. 45:1453, 1459(E), there is no need for an expedited appeal by a reporter.

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B. Procedure

1. To whom is the appeal made?

"An appeal is taken by obtaining an order, within the delay allowed, from the court which rendered the judgment." La. Code Civ. Proc. art. 2121. "An order of appeal may be granted on oral motion in open court, on written motion or on petition. The order should show the return day of the appeal in the appellate court." Id. There are five intermediate courts of appeal in Louisiana; each district court is assigned to one of these five circuit courts of appeal.

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2. Stays pending appeal

In case of any appeal of an order to comply with the subpoena or to disclose information, the qualified protection of the privilege shall remain in full force and effect during the pendency of the appeal. La. R.S. 45:1453, 45:1459(E). In Burns, the court stated that "§1453 gives reporters the right to appeal the ruling without fear of a contempt conviction or imprisonment." Burns, 484 So. 2d at 658.

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3. Nature of appeal

An order compelling disclosure is appealable under Code of Civil Procedure Article 2083. La. R.S. 45:1453, 45:1459(E). Article 2083 states "an appeal may be taken from a final judgment rendered in cases in which appeals are given by law whether rendered after hearing or by default, and from an interlocutory judgment which may cause irreparable injury."

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4. Standard of review

The United States Fifth Circuit has upheld a district court's finding that alternative means had been exhausted because it was "not clearly erroneous." Miller, 621 F. 2d at 725. In Louisiana, the shield law does not address the standard of appellate review. Presumably, findings of fact are subject to a clearly erroneous standard and conclusions of law are subject to a de novo standard.

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5. Addressing mootness questions

In Burns, the "informant voluntarily identified himself when he learned of the contempt proceedings." Burns, 484 So.2d at 658. The Supreme Court of Louisiana nevertheless held that the "trial court erred in holding the reporter's privilege inapplicable." Id. Thus, disclosure of a source's name does not necessarily moot the issue.

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6. Relief

If adjudged in contempt, a reporter may request that the contempt citation be set aside. See State of Louisiana v. Fontanille, 93-KH-935 (La. App. 5th Cir. 1/24/94) La. App. LEXIS 191, *7. In Fontanille, the Appellate Court set aside a contempt decree the district court issued against an investigative nonfiction book author who refused to answer questions about his interview with a criminal defendant. Id. The appellate court found that the author was constitutionally entitled to a qualified journalist's testimonial privilege and remanded the case to the trial court for the trial court to determine if the privilege should be upheld. Id.

Similarly, in Burns, the reporter sought reversal of the trial court's contempt citation imprisoning the reporter. Burns, 484 So.2d at 659. The Supreme Court of Louisiana found that the reporter's privilege applied and stated that "while a remand to determine whether disclosure of a reporter's source is essential to the public interest might be required in some cases, the informant in this case voluntarily identified himself when he learned of the contempt proceedings." Id. The court vacated the trial court's judgment and reversed the conviction and sentence. Id.

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IX. Other issues

A. Newsroom searches

The Federal Privacy Protection Act has not been used in Louisiana to our knowledge and there are not any similar provisions under Louisiana law.

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B. Separation orders

There is no statutory language or Louisiana case law addressing this issue.

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C. Third-party subpoenas

There is no statutory language or Louisiana case law addressing this issue.

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D. The source's rights and interests

There is no statutory language or Louisiana case law addressing this issue.

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