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Maine

Reporter's Privilege Compendium


Author

Sigmund D. Schutz
Preti, Flaherty, Beliveau & Pachios LLP
P.O. Box 9546
One City Center
Portland, ME 04112-9546
(207) 791-3000
www.preti.com

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I. Introduction: History & Background

On April 18, 2008, Maine Governor John Baldacci signed into law “An Act to Shield Journalists' Confidential Sources”—Maine’s first statutory reporters’ privilege.  The statute is codified at 16 M.R.S.A. § 61. Before then, the reporter's privilege had reached the Maine Supreme Judicial Court twice. In 1990 the Court addressed access to non-confidential outtakes in a criminal proceeding and adopted the balancing test propounded by the First Circuit in Bruno & Stillman, Inc. v. Globe Newspaper Co., 633 F.2d 583, 6 Med.L.Rptr. 2057 (1st. Cir. 1980).  See In re Letellier, 578 A.2d 722, 17 Med.L.Rptr. 2169 (Me. 1990). The Court held, "The First Amendment . . . requires that we balance the competing societal and constitutional interest on a case-by-case basis, weighing any possible injury to the free flow of information against the recognized obligation of all citizens to give relevant evidence regarding criminal conduct."

In the Supreme Judicial Court's only prior decision on the subject, State v. Hohler, 543 A.2d 364, 15 Media L.Rep. 1611 (1988), the Court refused to recognize any "qualified privilege for a reporter to refuse to testify concerning non-confidential, published information obtained from an identified source."

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II. Authority for and source of the right

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A. Shield law statute

Maine's shield law, 16 M.R.S.A. § 61, provides a qualified privilege against compelled disclosure of confidential sources of information, information that identifies confidential sources, and confidential information obtained from a source. The statute does not include any protection for non-confidential information.

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B. State constitutional provision

The Maine Supreme Court has not recognized state constitutional protection for journalist’s sources.  The Court held that “. . . we can find no basis in language or history to differentiate a claim of privilege under the Maine Constitution from a claim of privilege advanced under the First Amendment.” In re Letellier, 578 A.2d 722, 17 Med.L.Rptr. 2169 (Me. 1990).  The Court rested its decision on the provisions of the First Amendment of the United States Constitution, not Article I, § 4 of the Maine Constitution, which provides that "no laws shall be passed regulating or restraining the freedom of the press."

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C. Federal constitutional provision

The Maine Supreme Court embraced the First Circuit's analysis in Bruno & Stillman, Inc. v. Globe Newspaper Co., 633 F.2d 583 (1st. Cir. 1980), holding that "The First Amendment thus requires that we balance the competing societal and constitutional interests on a case-by-case basis, weighing any possible injury to the free flow of information against the recognized obligation of all citizens to give relevant evidence regarding criminal conduct."  In re Letellier, 578 A.2d 722, 17 Med.L.Rptr. 2169 (Me. 1990).

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D. Other sources

In Maine, court rules and rules of evidence do not provide a basis for a reporters’ privilege. In re Letellier, 578 A.2d 722, 17 Med.L.Rptr. 2169 (Me. 1990).

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III. Scope of protection

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A. Generally

The shield law creates a qualified privilege against compelling a journalist to disclose the identity of a confidential source, any information used to identify a confidential source, or any information obtained from the confidential source by the journalist while acting in a journalistic capacity.

With regard to non-confidential sources, the Maine Supreme Court ordered the disclosure of non-confidential outtakes sought by a grand jury in a criminal prosecution.  See In re Letellier, 578 A.2d 722, 17 Med.L.Rptr. 2169 (Me. 1990). Applying the First Circuit's “balancing test,” the Maine Supreme Court ordered the disclosure of un-broadcast portions of a videotape, specifically noting the absence of a confidential source and the fact that the information was sought by a grand jury.

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B. Absolute or qualified privilege

The privilege is qualified.  The shield law (16 M.R.S.A. § 61) provides that a judicial, legislative, administrative or other body with the power to issue a subpoena may not compel a journalist to testify about, produce or otherwise disclose or adjudge the journalist in contempt for refusal to testify about, produce or disclose:

  1. The identity of a confidential source of any information;
  2. Any information that could be used to identify a confidential source; or
  3. Any information obtained or received in confidence by the journalist acting in the journalistic capacity of gathering, receiving, transcribing or processing news or information for potential dissemination to the public.

A court may compel disclosure of the identity of a confidential source or information if the court finds, after the journalist has been provided notice and the opportunity to be heard, that the party seeking the identity of the source or the information has established by a preponderance of the evidence, in all matters, whether criminal or civil, that:

(A) The identity of the source or the information is material and relevant;

(B) The identity of the source or the information is critical or necessary to the maintenance of a party's claim, defense or proof of an issue material to the claim or defense;

(C) The identity of the source or the information is not obtainable from any alternative source or cannot be obtained by alternative means or remedies less destructive of First Amendment rights; and

(D) There is an overriding public interest in the disclosure.

In addition, based on information obtained from a source other than the journalist, in a criminal investigation or prosecution, there are reasonable grounds to believe that a crime has occurred; and in a civil action or proceeding, there must be a prima facie cause of action. 61 M.R.S.A. 16(2).

With regard to non-confidential sources and information, the Maine Supreme Court refused to adopt a "privilege" in Letellier and, instead, adopted Justice Powell's concurrence in Branzburg v. Hayes, 408 U.S. 665 (1972), calling for the Court to strike "a proper balance" on a case-by-case basis "between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct."

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C. Type of case

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1. Civil

The shield law statute applies to civil actions and proceedings.

In a footnote to its In re Letellier, 578 A.2d 722, 17 Med.L.Rptr. 2169 (Me. 1990), the Maine Supreme Court noted that many cases recognizing a privilege "arose in civil actions where the balancing of interests is arguably different than in criminal actions," Letellier at 725, n. 7, suggesting that the Court might be more inclined to quash a subpoena in a civil case than in an action involving a grand jury inquiry into criminal activity.

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2. Criminal

The shield law statute applies to criminal investigations or prosecutions.

The Maine Supreme Court did not differentiate between subpoenas sought by prosecutors or defense counsel.  See In re Letellier, 578 A.2d 722, 17 Med.L.Rptr. 2169 (Me. 1990).

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3. Grand jury

Although "grand juries" are not expressly mentioned in the shield law statute, it does apply to any "judicial, legislative, administrative or other body with the power to issue a subpoena." 16 M.R.S.A. 61(1).

In re Letellier, 578 A.2d 722, 17 Med.L.Rptr. 2169 (Me. 1990) involved the disclosure of non-confidential outtakes to a grand jury. The outtakes were sought by a subpoena issued by the District Attorney. In ordering disclosure, the Court emphasized the importance of grand jury proceedings, which the Court described as "a unique body guaranteed by both the United States and Maine Constitutions to play an historically vital role in our criminal justice system." Id. at 728-29.

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D. Information and/or identity of source

The shield law statute applies to both confidential information and the identity of a confidential source. 16 M.R.S.A. § 61(1).

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E. Confidential and/or nonconfidential information

The shield law statute applies only to confidential sources and information. 16 M.R.S.A. § 61(1).

In re Letellier, 578 A.2d 722, 17 Med.L.Rptr. 2169 (Me. 1990) involved the forced disclosure of non-confidential outtakes. Throughout the decision, the Court noted that the information sought was not confidential and did not involve a confidential source, suggesting that confidential source or confidential information might have been treated differently. In State v. Hohler, 543 A.2d 364, 15 Media L.Rep. 1611 (1988), by contrast, the Court refused to recognize any “qualified privilege for a reporter to refuse to testify concerning non-confidential, published information obtained from an identified source." (emphasis added).

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F. Published and/or non-published material

There is no privilege for published material.  The privilege afforded by the shield law statute is waived "if the journalist voluntarily discloses or consents to disclosure of the protected information." 61 M.R.S.A. § 16(4).

Letellier involved the forced disclosure of non-broadcast "outtakes" in the possession of a television station. In State v. Hohler, 543 A.2d 364, 15 Media L.Rep. 1611 (1988), by contrast, the Court the Court refused to recognize any "qualified privilege for a reporter to refuse to testify concerning non-confidential, published information obtained from an identified source." (emphasis added).

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G. Reporter's personal observations

The shield law applies to "[a]ny information obtained or received in confidence by the journalist acting in the journalistic capacity of gathering, receiving, transcribing or processing news or information for potential dissemination to the public." 16 M.R.S.A. § 61(1)(C). The statute, distinguishes between information obtained or received in a journalistic capacity and information obtained or received in a personal capacity.

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H. Media as a party

Maine's courts have not addressed this issue.

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I. Defamation actions

Maine's courts have not addressed whether there is a "libel exception" (and thus no privilege). There are no cases where a court has allowed entry of judgment against a media defendant, or instructed the jury that it should presume that there was no source, or declared a presumption of actual malice based on the media's assertion of a privilege and unwillingness to produce sources or protected information.

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IV. Who is covered

The shield law applies to a "journalist." That term is not defined by statute.

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A. Statutory and case law definitions

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1. Traditional news gatherers

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a. Reporter

Maine’s courts have not addressed this issue.

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b. Editor

Maine’s courts have not addressed this issue.

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c. News

Maine’s courts have not addressed this issue.

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d. Photo journalist

Maine’s courts have not addressed this issue.

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e. News organization/medium

Maine’s courts have not addressed this issue.

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2. Others, including non-traditional news gatherers

Maine’s courts have not addressed this issue.

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B. Whose privilege is it?

The shield law requires that the journalist be given notice and an opportunity to be heard, the same is not true for the source.

The Maine Supreme Court has nod addressed whether the privilege may be asserted by a source, but a footnote in In re Letellier, 578 A.2d 722, 17 Med.L.Rptr. 2169 (Me. 1990). at 724, n.2 notes that the trial court had determined that the source was without standing to oppose the subpoena on the reporter.  The portion of the trial judge's order was not challenged on appeal.

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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 are no special rules regarding service of subpoenas on the press. The subpoena must be served in accordance with either Rule 45 of the Maine Rules of Civil Procedure or Rule 17 (witnesses) or 17A (documents) of the Maine Rules of Criminal Procedure.

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2. Deposit of security

There is no requirement for a deposit of security.

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3. Filing of affidavit

There is no requirement for the filing of an affidavit to serve a subpoena on the media.

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4. Judicial approval

In criminal cases, if a party or its attorney knows that a subpoena seeks the production of evidence that “may be protected from disclosure by privilege” the party must file a motion in limine before serving the subpoena.  M.R.Crim.P. 17(d); 17A(f) (same).  In civil cases, prior judicial approval is not ordinarily required.  In both criminal and civil cases, the shield law requires a court order before information subject to the reporters’ privilege may be disclosed.  16 M.R.S.A. § 61(2).

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5. Service of police or other administrative subpoenas

There are no special rules regarding the service of police or other administrative subpoenas.

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B. How to Quash

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1. Contact other party first

In civil cases, motions or objections concerning subpoenas are subject to good-faith meet and confer requirements.  See M.R.Civ.P. 45(e).  No similar rule applies in criminal cases.

Because subpoenas on reporters are a rare occurrence in Maine, many attorneys are unaware of the shield law or the Letellier balancing test applicable to subpoenas on reporters. Once educated about the shield law and Letellier, some attorneys will withdraw or narrow the scope of a subpoena.

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2. Filing an objection or a notice of intent

There is no requirement that a notice of intent to quash be filed before a motion to quash is served.

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3. File a motion to quash

The shield law should limit the need to file a motion to quash when confidential sources or information are involved. The burden is on the party seeking the identity of the source or the information to meet the multi-factor test set forth in the law before obtaining the identity of the source or the information. 16 M.R.S.A. 61(2).

The procedure for objection to subpoenas in criminal cases is M.R.Crim.P. 17(d) (witness subpoenas) and M.R.Crim.P. 17A(f) (document subpoenas).  A motion to quash a subpoena for documents in a criminal case may be filed in accordance with M.R.Civ.P. 17A(d).  In State v. Watson, 1999 ME 41, ¶ 6, 726 A.2d 214, 216, the Maine Supreme Court adopted a four factor “Watson test” for screening motions to quash: (1) that the documents are evidentiary and relevant; (2) that they are not otherwise procurable reasonably in advance of trial by exercise of due diligence; (3) that the party cannot properly prepare for trial without such production and inspection in advance of trial and that the failure to obtain such inspection may tend unreasonably to delay the trial; and (4) that the application is made in good faith and is not intended as a general ‘fishing expedition.  See also State v. Dube, 2014 ME 43, ¶ 10, 87 A.3d 1219, 1223 (affirming order quashing subpoena for victim’s medical records); State v. Marroquin-Aldana, 2014 ME 47, ¶ 38, 89 A.3d 519, 530 (affirming order quashing subpoena for documents related to immigration status of victim’s mother).

Absent a timely ruling on a motion to compel witness testimony, the witness should appear and claim any privilege or immunity he may have or raise an objection to particular questions put to him. See State v. Willoughby, 507 A.2d 1060 (Me.1986) (holding that M.R.Crim.P. 17 provides "no procedure for quashing a subpoena ad testificandum on the grounds that the testimony would be inadmissible”).

The procedure for motions to quash subpoenas in civil cases is M.R.Civ.P. 45(c), (e).  The Maine Supreme Court has noted that “[d]espite the absence of Maine case law or a rule explicitly authorizing a nonparty witness to move to quash a subpoena ad testificandum, the Advisory Committee Note to M.R. Civ. P. 45 recognizes motions to quash as ‘the remedy for nonparties[.]’”  State v. Peck, 2014 ME 74, ¶ 7, 93 A.3d 256, 259 (citations omitted).

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a. Which court?

A motion to quash should be brought in the same court where the action is pending.

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b. Motion to compel

The media party should file a motion to quash rather than await a motion to compel in order to obtain a timely ruling in advance of trial.

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c. Timing

In civil cases, a written objection to a subpoena must be made within 14 days of service of the subpoena (or before the time specified for compliance if such time is less than 14 days after service).  M.R.Civ.P. 45(c)(2)(B).  A motion to quash must be “timely” made.  M.R.Civ.P. 45(c)(3)(A).

In criminal cases, a motion to quash must be made “promptly.”  M.R.Crim.P. 17(c).  The news media did file a motion to quash in In re Letellier, 578 A.2d 722, 17 Med.L.Rptr. 2169 (Me. 1990), but “the timing of the trial court resolution of the issue [in relation to the date testimony was sought] was not addressed by the Maine [Supreme Court].”  Levesque v. Doocy, 247 F.R.D. 55, 56 (D. Me. 2007).

The federal court in Maine has held that a motion to quash may be filed by a reporter prior to her deposition testimony because many cases have decided whether to compel such testimony prior to a deposition:

I see no reason why a reporter must wait for his or her scheduled deposition, appear and be sworn and then refuse to answer questions based on the reporter's privilege before the party serving the deposition subpoena may be put to the First Circuit's initial test of demonstrating that it has evidence of the elements of its claim other than that (or those) to which the discovery sought may apply before any such discovery may be sought from a reporter.

Levesque v. Doocy, 247 F.R.D. 55, 57–58 (D. Me. 2007).

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d. Language

If a confidential source or information is involved a motion to quash should cite the shield law. If non-confidential sources or information are at stake, a motion to quash should cite the balancing test in In re Letellier, 578 A.2d 722, 17 Med.L.Rptr. 2169 (Me. 1990).  A motion need not be overly formal, and the Court will consider a letter objecting to a subpoena as the equivalent to a motion to quash.  See State v. Peck, 2014 ME 74, ¶ 7, n.5 93 A.3d 256, 259 (treating a witness’s letter as the equivalent of a motion to quash).

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e. Additional material

An affidavit should be filed in support of a motion to quash substantiating the basis for the privilege claimed or other grounds to quash the subpoena.

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4. In camera review

In criminal cases, the court must conduct an in camera review of any documentary evince that may be protected by privilege before ordering disclosure.  See M.R.Crim.P. 17A(f).

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a. Necessity

In criminal cases, in camera of materials that may be privileged is mandatory.  See M.R.Crim.P. 17A(f).

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A journalist waives the protection provided by the shield law if the journalist voluntarily discloses or consents to disclosure of the protected information. 16 M.R.S.A. § 61(4).

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c. Consequences of refusing

Maine's courts have not addressed this issue.

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5. Briefing schedule

The trial court has discretion to establish a briefing schedule.

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6. Amicus briefs

The trial court has discretion to accept amicus briefs, although such briefs are very rare at the trial level in Maine.  The Maine Supreme Court generally accepts amicus briefs; it allowed a half dozen broadcasters and publishers to appear by amicus brief in In re Letellier, 578 A.2d 722, 17 Med.L.Rptr. 2169 (Me. 1990).

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VI. Substantive law on contesting subpoenas

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A. Burden, standard of proof

For confidential sources and information, the burden of proof is "preponderance of the evidence." 16 M.R.S.A. 61(2).  The burden of proof generally falls on the party seeking access to the requested information.

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B. Elements

With regard to confidential sources and information, the party seeking the source or information must, in all matters, whether criminal or civil, establish that:

  1. The identity of the source or the information is material and relevant;
  2. The identity of the source or the information is critical or necessary to the maintenance of a party's claim, defense or proof of an issue material to the claim or defense;
  3. The identity of the source or the information is not obtainable from any alternative source or cannot be obtained by alternative means or remedies less destructive of First Amendment rights; and
  4. There is an overriding public interest in the disclosure.

In addition, based on information obtained from a source other than the journalist, the party seeking the source or information must establish:

  1. In a criminal investigation or prosecution, that there are reasonable grounds to believe that a crime has occurred; or
  2. In a civil action or proceeding, that there is a prima facie cause of action.

With regard to non-confidential sources and information, the Maine Supreme Court has applied a balancing test, on a case-by-case basis, weighing any possible injury to the free flow of information against the recognized obligation of all citizens to give relevant evidence regarding criminal conduct. See In re Letellier, 578 A.2d 722, 17 Med.L.Rptr. 2169 (Me. 1990).

The Letellier Court considered the following facts:

First, the Court found that the subpoena would "not interfere in any significant way with . . . news operations." Id. at 728. At most, the Court found, testimony might be required to authenticate the videotape.

Second, the information was sought for presentation to a grand jury, which the Court termed "a unique body guaranteed by both the United States and Maine Constitutions to play an historically vital role in our criminal justice system. Id. at 728-29.

Third, the Court found that the information sought was a "unique bit of evidence frozen at a particular place and time containing information unobtainable from any other source;" that "[t]he videotape presents an invaluable and irreplaceable opportunity" for the grand jury to observe the defendant's demeanor and to hear an unedited version of his story in his own words with any subtle nuance that it may reveal." Id at 729 (internal quotations omitted).

Fourth, the Court noted that the grand jury investigation involved alleged corruption of the law enforcement process by a police commissioner, a matter of "grave public concern striking at the heart of public confidence and trust in government. Id. at 729. These circumstances rendered the public interest in disclosure "particularly pressing." Id.

Given its careful weighing of the particular facts before it, the Court cautioned that "[t]he importance of the constitutional protections of a free press . . . lead us to state . . . that our decision is limited to the particular fact circumstances of this case." Id. at 730.

The Maine Superior Court recently applied the Letellier test in Sanborn v. State, slip op., Docket No. CUMCD-CR-2017-00531 (Unified Criminal Docket, Cumberland, May 22, 2017), a post-conviction review proceeding in which the petitioner requested broadcast video and audio as well as non-confidential outtakes of an interview with a former prosecutor concerning the conviction that was the subject of review.  The Court engaged in the balancing analysis mandated by Letellier and, after in camera review, ordered disclosure.  The Court reasoned that balancing and in camera review was required despite the fact that the materials involved “specific, non-confidential un-broadcast material that provides a unique opportunity to observe the demeanor, tone, and manner of a key witness.  Furthermore, the material sought is anticipated to help petitioner prepare for trial and provide impeachment material.”  Id. at *9.

After engaging in that in camera review, the Court ordered disclosure.  Id., slip op (May 26, 2017).  The Court found: (A) disclosure would be of “significant utility” to petitioner; (B) provide an “invaluable and irreplaceable opportunity” to view the demeanor of the witness; (C) the nature of the materials was relevant to a matter of “grave public concern striking at the heart of public confidence and trust in the power of the State[;]” and (D) the materials concern a “major witness” in the case and the material sought would “likely” offer a basis for impeachment.  The conditioned disclosure, however, on production only to the attorneys for the parties, barred them from further distributing the materials, and ordered that they may be used solely for purpose of the upcoming hearing.

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1. Relevance of material to case at bar

For confidential sources and information, the identity of the source or the information must be "critical" or "necessary." 16 M.R.S.A. 61(2)(A)(2).

For non-confidential sources and information the relevance of the materials sought will be a factor in weighing any possible injury to the free flow of information against the subpoenaing party's pursuit of the information.

Any subpoena may be quashed if “unreasonable [or] oppressive.”  M.R.Crim.P. 17(c). The attorney for the subpoenaing party also must make arrangements to minimize the burden on the subpoenaed person.  M.R.Crim.P. 17(a).  Although a criminal defendant has a right to “have compulsory process for obtaining witnesses in his favor” that right is not violated unless the defendant demonstrates “how the testimony would have been both material and favorable to his defense.”  State v. Deering, 611 A.2d 972, 974 (Me.1992).

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2. Material unavailable from other sources

For confidential sources and information, the identity of the source or the information must be unobtainable from any alternative source or unobtainable by alternative means or remedies less destructive of First Amendment rights. 16 M.R.S.A. 61(2)(A)(3).
For non-confidential sources and information, the Court will inquire whether the information is available from other sources in assessing whether the potential injury or impairment of the protected newsgathering and editorial processes outweighs the other party's need to acquire that information from the press.

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a. How exhaustive must search be?

Maine's courts have not addressed this issue.

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

Maine's courts have not addressed this issue.

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c. Source is an eyewitness to a crime

Maine's courts have not addressed this issue.

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3. Balancing of interests

For confidential sources and information, each factor set out in the shield law must be met. 16 M.R.S.A. 61(2).

For non-confidential sources or information, the Maine Supreme Court will balance the competing societal and constitutional issues on a case-by-case basis, weighing any possible injury to the free flow of information against the recognized obligation of all citizens to give relevant evidence. See In re Letellier, 578 A.2d 722, 17 Med.L.Rptr. 2169 (Me. 1990).

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4. Subpoena not overbroad or unduly burdensome

Any subpoena, whether directed to a member of the media or not, can be quashed or modified in scope to the extent that it is overbroad, burdensome or oppressive.

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5. Threat to human life

No Maine court has addressed whether a subpoena on the press involves a threat to life.

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6. Material is not cumulative

Although no Maine court has specifically addressed the issue, the Court would consider whether material sought was cumulative or, instead, unique and therefore necessary. If confidential sources and information is merely cumulative, such sources and information would presumably be protected from disclosure because such information would no longer be critical or necessary "to the maintenance of a party's claim, defense or proof of an issue material to the claim or defense." 16 M.R.S.A. 61(2)(A)(2).

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7. Civil/criminal rules of procedure

Both Rule 45 of the Maine Rules of Civil Procedure and Rules 17 and 17A of the Maine Rules of Criminal Procedure permit protection from subpoenas that are overly broad, burdensome or oppressive.

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8. Other elements

Maine's courts have not addressed what other elements may be applicable.

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C. Waiver or limits to testimony

A journalist waives the protection provided for confidential sources and information under the reporters’ privilege "if the journalist voluntarily discloses or consents to disclosure of the protected information." 16 M.R.S.A. 61(4). No Maine cases discuss waiver of a journalistic privilege or protection, for non-confidential sources or information clearly the disclosure would weigh heavily in ordering disclosure by subpoena. The same would apply to a partial disclosure to a lesser degree.

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1. Is the privilege waivable?

Not addressed.

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2. Elements of waiver

The privilege is waivable under the shield law. 16 M.R.S.A. 61(4).

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a. Disclosure of confidential source's name

Under the shield law, if the name is disclosed the privilege is waived. 16 M.R.S.A. 61(4).

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b. Disclosure of non-confidential source's name

The Maine courts have not addressed the issue.

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c. Partial disclosure of information

The Maine courts have not addressed the issue of partial disclosure.

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d. Other elements

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3. Agreement to partially testify act as waiver?

The Maine course have not addressed the issue of whether an agreement to partially testify may act as a waiver.

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VII. What constitutes compliance?

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A. Newspaper articles

Newspaper articles are not self-authenticating, but can be authenticated by a librarian or archivist with appropriate qualifications.

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B. Broadcast materials

Broadcast materials are not self-authenticating, but could be authenticated by the camera person, the reporter, a technician or an editor.

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C. Testimony vs. affidavits

Evidence cannot be authenticated by affidavit, even if it is merely to establish that an article was true and accurate as published. However, most trial judges would bring pressure on the litigants to stipulate to the authenticity rather than force a member of the media to testify.

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D. Non-compliance remedies

No Maine cases.

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1. Civil contempt

No Maine cases.

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a. Fines

No Maine cases.

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b. Jail

No Maine cases.

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2. Criminal contempt

In State v. Hohler, 543 A.2d 364, 364 (Me. 1988), the Maine Supreme Court affirmed the criminal contempt conviction of a reporter.

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3. Other remedies

No Maine cases.

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VIII. Appealing

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A. Timing

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1. Interlocutory appeals

There is an exception to the "final judgment" rule, thereby allowing interlocutory appeals, when a party's constitutional rights may be substantially impaired or destroyed.  The Maine Supreme Court would likely hear an interlocutory appeal claiming that compelled disclosure would impair First Amendment rights or a privilege.  See In re Letellier, 578 A.2d 722, 724 (Me. 1990) (the court heard an “immediate[] appeal[ ]”).

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2. Expedited appeals

The Maine Supreme Court ordinarily will expedite interlocutory appeals to avoid unduly delaying proceedings in the trial court.  See In re Letellier, 578 A.2d 722, 724 n.3 (Me. 1990) (the court granted a motion for expedited hearing).

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B. Procedure

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1. To whom is the appeal made?

All appeals in Maine are heard by a single appellate court, the Maine Supreme Judicial Court sitting as the Law Court.

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2. Stays pending appeal

A stay pending appeal may be granted by the trial court or the Supreme Court in a case involving important constitutional issues involving the press, particularly if the Court's finding would subject a reporter to sanctions for contempt absent a stay.

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3. Nature of appeal

An appeal from an order on a motion to compel (or to quash) a subpoena would be an interlocutory appeal.

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4. Standard of review

The Maine Supreme Court will consider issues of law "de novo." The Court has not considered the standard of review for mixed questions of law and fact in First Amendment cases, but would likely follow First Circuit precedent that mixed fact/law questions are also considered de novo. See, e.g., Ridley v. Mass. Bay Transp. Auth., 390 F.3d 65, 75 (1st Cir.2004) ("We engage in de novo review of ultimate conclusions of law and mixed questions of law and fact in First Amendment cases."). In ordinary cases, the trial court's findings of fact will not be overturned unless clearly erroneous.

Where the facts are undisputed, the Maine Supreme Court “independently review[s] on appeal” an order compelling disclosure of non-confidential information from a reporter.  In re Letellier, 578 A.2d 722, 727, n.8 (Me. 1990).

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5. Addressing mootness questions

The Maine Supreme Court has held that it will not allow important issues that are "capable of repetition but evading review" to be defeated by mootness.

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6. Relief

The Supreme Court will tailor relief to the circumstances.  The Court may remand "for further proceedings consistent with this decision” or enter a more direct order.

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IX. Other issues

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A. Newsroom searches

To this writer's knowledge, the provisions of the Privacy Protection Act (42 U.S.C. 2000aa) have not had to be invoked in this state and have not been the subject of a decision in Maine.  Maine has no statutory counterpart to the federal act.

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B. Separation orders

There are no Maine decisions or statutory provisions limiting the scope of separation orders issued against reporters who are both trying to cover a trial and are on a witness list.

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C. Third-party subpoenas

Under the shield law, the protection from compelled disclosure of confidential sources and information "also applies with respect to any subpoena issued to, or other compulsory process against, a 3rd party that seeks records, information or other communications relating to business transactions between the 3rd party and the journalist" for the purpose of discovering the identity of the confidential source or obtaining confidential information. "Whenever a subpoena is issued to, or other compulsory process is issued against, a 3rd party that seeks records, information or other communications on business transactions with the journalist, the affected journalist must be given reasonable and timely notice of the subpoena or compulsory process before it is executed or initiated and an opportunity to be heard. In the event that the subpoena issued to, or other compulsory process against, the 3rd party is in connection with a criminal investigation in which the journalist is the express target and advance notice as provided in this section would pose a clear and substantial threat to the integrity of the investigation, the governmental authority shall so certify to such a threat in court and notification of the subpoena or compulsory process must be given to the affected journalist as soon as it is determined that the notification will no longer pose a clear and substantial threat to the integrity of the investigation." 16 M.R.S.A. § 61(3).
There are no Maine decisions addressing third-party subpoenas for non-confidential sources or information.

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D. The source's rights and interests

There is no reported instance in Maine where a source has sought to intervene anonymously to halt disclosure of their identity or where they have been allowed to sue over disclosure after the fact. However, in Fitch v. Doe, 2005 ME 39, 869 A.2d 722 the trial court allowed counsel for an anonymous defendant to enter an appearance for his anonymous client (although he did so without objection) and to argue against disclosure of his client's identity.

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