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Maryland

Reporter's Privilege Compendium

Robin D. Leone

Saul Ewing Arnstein & Lehr LLP
Lockwood Place
500 East Pratt Street
Baltimore, MD 21202
(410) 332-8600

Special thanks to Henry R. Abrams, Esq., who authored the previous version of this guide.

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I. Introduction: History & Background

Maryland's Shield Law was most recently amended in 2010 and 2014 to extend the privilege against compelled disclosure to students and independent contractors. The 2010 amendment covered post-secondary students engaged in news gathering or dissemination recognized by their schools as a scholastic activity or in conjunction with a school-related activity. See Md. Cts. & Jud. Proc. Code Ann. § 9-112(b)(3), (c)(2).  Similarly, the 2014 amendment covered persons who are, or have been, an independent contractor of the news media acting within the scope of a contract in any news gathering or news disseminating capacity. § 9-112(b)(2), (c)(2).

 

The law was previously amended in 1988, in response to the decision in Tofani v. State, 465 A.2d 413, 9 Media L. Rep. 2193 (Md. 1983). Tofani concerned a journalist who had written and published several articles about sexual assaults in prison. 465 A.2d at 414. The journalist quoted and identified several of the victims and assailants. Id. When the journalist was subpoenaed to testify before a grand jury regarding the accuracy of her articles, she refused to disclose the names of her sources, on the basis of Maryland's Shield Law. Id. Denying the journalist's motion to quash, the Court held that the journalist waived her privilege by publishing those names in the press. Id. at 417-18. In response, the Maryland legislature added a broad anti-waiver provision to other 1988 amendments, absolutely prohibiting the compelled disclosure of the identity of sources, even if their identities have been published. § 9-112(e). The 1988 amendments also raised the standard of proof applicable in seeking to overcome the statutory qualified privilege against compelled disclosure of "news or information," requiring proof by "clear and convincing evidence." Md. Cts. & Jud. Proc. Code Ann. § 9-112(d)(1).

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II. Authority for and source of the right

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A. Shield law statute

Md. Cts. & Jud. Proc. Code Ann. § 9-112.

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B. State constitutional provision

Md. Dec. of R. Art. 40 (2001) -- WBAL-TV Division, The Hearst Corp. v. State, 477 A.2d 776, 10 Media L. Rep. 2121 (Md. 1984) -- The court assumed, but did not decide that Article 40 of the Maryland Declaration of Rights gives members of the news media a constitutionally-based qualified privilege to withhold unpublished material obtained during the newsgathering process from prosecutorial summons. Court applied essentially the same test as that codified in Maryland's shield law, Md. Cts. & Jud. Proc. Code Ann. §9-112. See also, Prince George's County v. Hartley, 822 A.2d 537, 31 Med. L. Rep. 1679 (Md. App. 2003), refusing to determine whether a state constitutionally-based privilege exists.

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C. Federal constitutional provision

U.S. Const. amend. I -- Tofani v. State, 465 A.2d 413, 425, 9 Media L. Rep. 2193 (Md. 1983) (holding that the First Amendment may not serve as a basis for refusing to testify before a grand jury, absent a showing that the jury acted in bad faith or outside the legitimate scope of its inquiry). See also, Prince George's County v. Hartley, 822 A.2d 537, 31 Med. L. Rep. 1679 (Md. App. 2003), refusing to decide whether there is a First Amendment-based privilege.

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D. Other sources

Public Policy -- See Telnikoff v. Matusevitch, 702 A.2d 230, 25 Media L. Rep. 2473 (Md. 1997) (discussing Maryland's strong commitment to freedom of the press).

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III. Scope of protection

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A. Generally

The protection afforded under Maryland's Shield Law is broad. The statute absolutely precludes the compelled disclosure of the source of any news or information, regardless of the media's publication of the source's identity. § 9-112(d)(2). The statute qualifiedly protects against the compelled disclosure of unpublished news or information, and the qualified privilege may only be overcome by clear and convincing evidence that one of the statutory exceptions applies. § 9-112(d)(1).

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B. Absolute or qualified privilege

Absolute -- Md. Cts. & Jud. Proc. Code Ann. § 9-112(c)(1) -- The reporter's statutory privilege is absolute in precluding the compelled disclosure of "the source of any news or information procured by the person while employed by the news media or while enrolled as a student, whether or not the source has been promised confidentiality."

Qualified -- Md. Cts. & Jud. Proc. Code Ann. § 9-112(d)(1) -- Pursuant to state statute, a court may compel disclosure of news or information listed under § 9-112(c)(2) if the court finds that the party seeking disclosure "has established by clear and convincing evidence that (i) [t]he news or information is relevant to a significant legal issue before any judicial, legislative, or administrative body, or anybody that has the power to issue subpoenas; (ii) [t]he news or information could not, with due diligence, be obtained by any alternate means; and (iii) [t]here is an overriding public interest in disclosure."

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C. Type of case

No distinction is made between civil cases, criminal cases or grand jury proceedings with respect to the assertion of the privilege. Bilney v. The Evening Star Newspaper Co., 406 A.2d 652, 658 , 5 Media L. Rep. 1931 (Md. Ct. Spec. App. 1979) ("The Maryland statute makes no distinction, either explicitly or implicitly, between civil and criminal actions; it applies to 'any legal proceeding.' Whatever arguments on the plane of public policy may be offered in support of a distinction -- one way or another -- that policy has been clearly set and stated by the General Assembly; and we are not at liberty to create, on our own a distinction for which there is no underlying basis in the law."). (Bilney interpreted the phrase "any legal proceeding," in prior statutory law; that phrase does not appear in the current statute, however, the policy underlying the decision in Bilney still appears relevant to the type of proceedings governed by the Shield Law.)

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1. Civil

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2. Criminal

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3. Grand jury

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D. Information and/or identity of source

Md. Cts. & Jud. Proc. Code Ann. § 9-112(c)(1).

Lightman v. State, 294 A.2d 149 (Md. Ct. Spec. App. 1972), aff'd, 295 A.2d 212 (Md. 1972), cert. denied, 411 U.S. 951 (1973) -- The newsman may not be compelled to answer questions aimed, directly or indirectly, at determining the source's identity.

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E. Confidential and/or nonconfidential information

Md. Cts. & Jud. Proc. Code Ann. § 9-112(c)(1).

Lightman v. State, 294 A.2d 149 (Md. Ct. Spec. App. 1972), aff'd, 295 A.2d 212 (Md. 1972), cert. denied, 411 U.S. 951 (1973) -- "The statute, on its face, does not purport to protect a newsman from disclosing only such sources of news or information published by him [which were] received in the course of a confidential newsman-informant relationship. On the contrary, while the Legislature may have enacted the statute with the primary purpose in mind of protecting the identity of newsmen's confidential sources, we think the statutory privilege broad enough to encompass any source of news or information, without regard to whether the source gave his information in confidence or not." Id. at 156.

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F. Published and/or non-published material

Md. Cts. & Jud. Proc. Code Ann. § 9-112(c)(2)(i) - (vi) -- The Shield Law qualifiedly protects against compelled disclosure of "[a]ny news or information procured by the person while employed by the news media or while acting as an independent contractor of the news media, in the course of pursuing a professional activity, or any news or information procured by the person while enrolled as a student, in the course of pursuing a scholastic activity or in conjunction with an activity sponsored, funded, managed, or supervised by school staff or faculty, for communication to the public but which is not so communicated, in whole or in part, including: (i) [n]otes; (ii) [o]uttakes; (iii) [p]hotographs or photographic negatives; (iv) [v]ideo and sound tapes; (v) [f]ilm; and (vi) [o]ther data, irrespective of its nature, not itself disseminated in any manner to the public." (emphasis added).

Md. Cts. & Jud. Proc. Code Ann. § 9-112(e) -- Waiver -- "If any person described in subsection (b) of this section disseminates a source of any news or information, or any portion of the news or information procured while pursuing an activity described in subsection (b) of this section, the protection from compelled disclosure under this section is not waived by the person." Subsection (b) describes the covered persons and activities as those employed by the news media in a news gathering or news disseminating capacity; independent contractors of the news media acting within the scope of a contract in any news gathering or news disseminating capacity; and enrolled post-secondary students engaged in any news gathering or news disseminating capacity recognized by the institution as a scholastic activity or in connection with a school-related activity.  § 9-112(b).

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G. Reporter's personal observations

Lightman v. State, 294 A.2d 149, 156 (Md. Ct. Spec. App. 1972), aff'd, 295 A.2d 212 (Md. 1972), cert. denied, 411 U.S. 951 (1973) ("Where a newsman, by dint of his own investigative efforts, personally observes conduct constituting the commission of criminal activities by persons at a particular location, the newsman, and not the persons observed, is the 'source' of the news or information in the sense contemplated by the statute. . . [and the newsman] can lawfully be directed to disclose [the information he observed because] these questions do not go to the 'source' of the [newsman's] publication and they must be answered."). See also, Prince George's County v. Hartley, 822 A.2d 537, 31 Med. L. Rep. 1679 (Md. App. 2003), stating that neither constitutional nor statutory privilege applies to reporter's eyewitness observations of a transitory event.

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H. Media as a party

Assertion of the privilege when the media is a party to the suit does not appear to be any different than if the media is not a party. Bilney v. The Evening Star Newspaper Co., 406 A.2d 652, 656, 5 Media L. Rep. 1931 (Md. Ct. Spec. App. 1979) (authors of one of the offending articles successfully asserted the privilege in declining to reveal the identity of the source of the information about appellants' poor academic standing).

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I. Defamation actions

There are no cases on this issue.

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IV. Who is covered

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A. Statutory and case law definitions

Miscellaneous: The reporter's privilege does not apply to news media members outside of Maryland. In re State of California for the County of Los Angeles, Grand Jury Investigation, 471 A.2d 1141 (Md. Ct. Spec. App. 1984) (appellant could not rely on Maryland's Shield Law to argue that the matters about which he would testify were protected because Maryland's Press Shield law has no extraterritorial application.)

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1. Traditional news gatherers

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a. Reporter

Md. Cts. & Jud. Proc. Code Ann. § 9-112(b) – Persons affected are described as those employed by the news media in a news gathering or news disseminating capacity; independent contractors of the news media acting within the scope of a contract in any news gathering or news disseminating capacity; and enrolled post-secondary students engaged in any news gathering or news disseminating capacity recognized by the institution as a scholastic activity or in connection with a school-related activity.

There is no statutory or case law definition of "reporter."

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b. Editor

Md. Cts. & Jud. Proc. Code Ann. § 9-112(b) -- Persons affected are described as those employed by the news media in a news gathering or news disseminating capacity; independent contractors of the news media acting within the scope of a contract in any news gathering or news disseminating capacity; and enrolled post-secondary students engaged in any news gathering or news disseminating capacity recognized by the institution as a scholastic activity or in connection with a school-related activity.

There is no statutory or case law definition of "editor."

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c. News

There is no statutory or case law definition of "news," however Md. Cts. & Jud. Proc. Code Ann. § 9-112(a) defines "news media" as (1) [n]ewspapers; (2) [m]agazines; (3) [j]ournals; (4) [p]ress associations; (5) [n]ews agencies; (6) [w]ire services; (7) [r]adio; (8) [t]elevision; and (9) [a]ny printed, photographic, mechanical, or electronic means of disseminating news and information to the public."

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d. Photo journalist

Md. Cts. & Jud. Proc. Code Ann. § 9-112(b) -- Persons affected are described as those employed by the news media in a news gathering or news disseminating capacity; independent contractors of the news media acting within the scope of a contract in any news gathering or news disseminating capacity; and enrolled post-secondary students engaged in any news gathering or news disseminating capacity recognized by the institution as a scholastic activity or in connection with a school-related activity.

There is no statutory or case law definition of "photo journalist."

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e. News organization/medium

Md. Cts. & Jud. Proc. Code Ann. § 9-112(a) defines "news media" as (1) [n]ewspapers; (2) [m]agazines; (3) [j]ournals; (4) [p]ress associations; (5) [n]ews agencies; (6) [w]ire services; (7) [r]adio; (8) [t]elevision; and (9) [a]ny printed, photographic, mechanical, or electronic means of disseminating news and information to the public."

There is no case law applying this definition.

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2. Others, including non-traditional news gatherers

Forensic Advisors, Inc. v. Matrixx Initiatives, Inc., 907 A.2d 855, 35 Med. L. Rep. 1115 (Md. App. 2006), appeal dism'd, 918 A.2d 468 (Md. 2007). Shield law applies to financial newsletter.  Action Committee for Transit v. Chevy Chase, 145 A.3d 640, 654 n.24 (in dicta noting that the activities of a local blogger made him a member of the news media at least with respect to the Maryland Public Information Act).

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B. Whose privilege is it?

The privilege belongs to the news media member, not the informant. Lightman v. State, 294 A.2d 149, 156 (Md. Ct. Spec. App. 1972), aff'd, 295 A.2d 212 (Md. 1972), cert. denied, 411 U.S. 951 (1973) ("The Maryland statute, however, does not protect against the disclosure of communications; it privileges only the source of the information and the privilege is not that of the informant but of the newsman.")

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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

  1. Circuit Court -- Discovery

Deposition - Md. R. Civ. Proc. 2-412(a) -- "A party desiring to take a deposition shall serve a notice of deposition upon oral examination at least ten days before the date of the deposition or a notice of deposition upon written questions in accordance with Rule 2-417." Same time re: subpoena for non-party deponent. See Md. R. Civ. Proc. 2-510(a)(1)(B).

Deposition plus production of documents or other tangible things -- Md. R. Civ. Proc. 2-412(c) -- "If a subpoena requiring the production of documents or other tangible things at the taking of the deposition is to be served on a party or nonparty deponent, the designation of the materials to be produced as set forth in the subpoena shall be attached to or included in the notice and the subpoena shall be served at least 30 days before the date of the deposition." Same time for requests for documents from parties. Md. R. Civ. Proc. 2-422(c).

Deposition -- Written questions -- Md. R. Civ. Proc. 2-417(a) -- "A party desiring to take a deposition upon written questions shall serve the questions together with the notice of deposition. Within 30 days after service of the notice and written questions, a party may serve cross questions. Within 15 days after service of cross questions, a party may serve redirect questions. Within 15 days after service of redirect questions, a party may serve recross questions."

Deposition -- By telephone -- Md. R. Civ. Proc. 2-418-- "The parties may stipulate in writing, or the court on motion may order, that a deposition be taken by telephone. …"

Discovery of documents -- Md. R. Civ. Proc. 2-422 -- "(a) Scope. Any party may serve one or more requests to any other party (1) as to items that are in the possession, custody, or control of the party upon whom the request is served, to produce and permit the party making the request, or someone acting on the party's behalf, to inspect, copy, test or sample designated documents or electronically stored information. . . ;" "(c) Response. The party to whom a request is directed shall serve a written response within 30 days after service of the request or within 15 days after the date on which that party's initial pleading or motion is required, whichever is later. The response shall state, with respect to each item or category, that (1) inspection and related activities will be permitted as requested, (2) the request is refused, or (3) the request for production in a particular form is refused. The grounds for each refusal shall be fully stated. …"

  1. Circuit Court -- Trial

Subpoena for Nonparty -- Md. R. Civ. Proc. 2-510(a)(1) -- "A subpoena is required (A) to compel the person to whom it is directed to attend, give testimony, and produce designated documents or other tangible things at a court proceeding, including proceedings before a master, auditor, or examiner; and (B) to compel a nonparty to attend, give testimony, and produce and permit inspection, copying, testing, or sampling of designated documents, electronically stored information or other tangible things at a deposition."

Subpoenas -- Md. R. Civ. Proc. 2-510(d) -- "Unless impracticable, a party shall make a good faith effort to cause a trial or hearing subpoena to be served at least five days before the trial or hearing."

When court may require production of evidence -- Md. R. Civ. Proc. 2-514 -- "When it appears to the court at a hearing or trial that the attendance or testimony of any person or the production of any document or tangible thing not produced by any party is necessary for the purpose of justice, the court (a) may order any party to produce the document or tangible thing for inspection by the court or jury, or (b) may issue a subpoena for the production of the person, document, or tangible thing; and in either event the court may continue the hearing or trial to allow compliance with the order or subpoena, upon such conditions as to time, notice, cost, and security as the court deems proper."

  1. District Court

Depositions are not permitted in district court, unless a written stipulation is filed in the action. See Md. R. Civ. Proc. 3-401(a).

Discovery -- Md. R. Civ. Proc. 3-401 -- "Except as otherwise provided in this Title, a party may obtain discovery by written interrogatories and, if a written stipulation is filed in the action, by deposition upon oral examination or written questions. The taking and use of a deposition permitted under this Rule shall be in accordance with Chapter 400 of Title 2.

Subpoena for Nonparty -- See Md. R. Civ. Proc. 3-510(a) (substantively identical to Md. R. Civ. Proc. 2-510(a) except that testing and sampling of documents is not discussed, nor is electronically stored information listed as a category of information the recipient of a subpoena must produce).

Subpoenas -- Md. R. Civ. Proc. 3-510(d) -- "Unless impracticable, a party shall make a good faith effort to cause a trial or hearing subpoena to be served at least five days before the trial or hearing."

When court may require production of evidence -- Md. R. Civ. Proc. 3-514 - "When it appears to the court at a hearing or trial that the attendance or testimony of any person or the production of any document or tangible thing not produced by any party is necessary for the purpose of justice, the court (a) may order any party to produce the document or tangible thing for inspection by the court or jury, or (b) may issue a subpoena for the production of the person, document, or tangible thing; and in either event the court may continue the hearing or trial to allow compliance with the order or subpoena, upon such conditions as to time, notice, cost, and security as the court deems proper."

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2. Deposit of security

There is no rule or case law requiring a deposit of security.

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3. Filing of affidavit

Md. R. Civ. Proc. 2-311(d). "A motion or a response to a motion that is based on facts not contained in the record shall be supported by affidavit and accompanied by any papers on which it is based." Pursuant to Md. R. Civ. Proc. 1-304 and 2-311(d), it appears that the affidavit may be based on knowledge, information and belief or personal knowledge. There is no case law addressing this issue.

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4. Judicial approval

There is no requirement for judicial approval before a subpoena can be served.

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5. Service of police or other administrative subpoenas

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

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B. How to Quash

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1. Contact other party first

There is no requirement to contact the other party first.

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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 prior to the motion to quash.

Objection to subpoena for circuit court proceeding -- Md. R. Civ. Proc. 2-510(e) -- "On motion of a person served with a subpoena to attend a court proceeding (including a proceeding before a master, auditor, or examiner) or a person named or depicted in an item specified in the subpoena filed promptly and, whenever practicable, at or before the time specified in the subpoena for compliance, the court may enter an order . . . including one or more of the following: (1) that the subpoena be quashed or modified; (2) that the subpoena be complied with only at some designated time or place other than that stated in the subpoena; (3) that documents, electronically stored information, or tangible things designated in the subpoena be produced only upon the advancement by the party serving the subpoena of the reasonable costs of producing them; or (4) that documents, electronically stored information, or tangible things designated in the subpoena be delivered to the court at or before the proceeding or before the time when they are to be offered in evidence, subject to further order of court to permit inspection of them."

Objection to subpoena for district court proceeding -- Md. R. Civ. Proc. 3-510(e) (substantively identical to Md. R. Civ. Proc. 2-510(e) except that the there are no references to “electronically stored information”).

Objection to subpoena for deposition -- Md. R. Civ. Proc. 2-510(f) -- "A person served with a subpoena to attend a deposition may seek a protective order pursuant to Rule 2-403. If the subpoena also commands the production of documents, electronically stored information, or tangible things at the deposition, the person served or a person named or depicted in an item specified in the subpoena may seek a protective order pursuant to Rule 2-403 or may file, within ten days after service of the subpoena, an objection to production of any or all of the designated materials. The objection shall be in writing and shall state the reasons for the objection. If an objection is filed, the party serving the subpoena is not entitled to production of the materials except pursuant to an order of the court from which the subpoena was issued. At any time before or within 15 days after completion of the deposition and upon notice to the deponent, the party serving the subpoena may move for an order to compel the production." See also Md. R. Civ. Proc. 3-510(f) (substantially the same except that there is no reference to “electronically stored information”).

Protective Orders -- Md. R. Civ. Proc. 2-403 -- "On motion of a party or of a person from whom discovery is sought, or a person named or depicted in an item sought to be discovered, and for good cause shown, the court may enter any order that justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following: (1) that the discovery not be had, (2) that the discovery not be had until other designated discovery has been completed, a pretrial conference has taken place, or some other event or proceeding has occurred, (3) that the discovery may be had only on specified terms and conditions, including an allocation of the expenses or a designation of the time or place, (4) that the discovery may be had only by a method of discovery other than that selected by the party seeking discovery, (5) that certain matters not be inquired into or that the scope of the discovery be limited to certain matters, (6) that discovery be conducted with no one present except persons designated by the court, (7) that a deposition, after being sealed, be opened only by order of the court, (8) that a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way, (9) that the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court."

In general, a person claiming a reporter's privilege to refuse to answer certain questions must attend the deposition and object/refuse to answer on a question-by-question basis. Forensic Advisors, Inc. v. Matrixx Initiatives, Inc., 907 A.2d 855, 35 Med. L. Rep. 1115 (Md. App. 2006), appeal dism'd, 918 A.2d 468 (Md. 2007).

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3. File a motion to quash

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a. Which court?

The motion to quash should be filed in the court issuing the subpoena.

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b. Motion to compel

There is no requirement that one wait until the adverse party files a motion to compel before filing a motion to quash.

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c. Timing

Objection to subpoena for circuit court proceedings – Md. R. Civ. Proc. 2-510(e) – "On motion of a person served with a subpoena to attend a court proceeding (including a proceeding before a master, auditor, or examiner) or a person named or depicted in an item specified in the subpoena filed promptly and, whenever practicable, at or before the time specified in the subpoena for compliance, the court may enter an order . . ., including one or more of the following: (1) that the subpoena be quashed or modified; (2) that the subpoena be complied with only at some designated time or place other than that stated in the subpoena; (3) that documents, electronically stored information, or tangible things designated in the subpoena be produced only upon the advancement by the party serving the subpoena of the reasonable costs of producing them; or (4) that documents, electronically stored information, or tangible things designated in the subpoena be delivered to the court at or before the proceeding or before the time when they are to be offered in evidence, subject to further order of court to permit inspection of them."

Objection to subpoena for district court proceedings – Md. R. Civ. Proc. 3-510(e) (substantively identical to Md. R. Civ. Pro. 2-510(e), above, except that the there are no references to “electronically stored information”).

Objection to subpoena for depositions – Md. R. Civ. Proc. 2-510(f) – "A person served with a subpoena to attend a deposition may seek a protective order pursuant to Rule 2-403. If the subpoena also commands the production of documents, electronically stored information, or tangible things at the deposition, the person served or a person named or depicted in an item specified in the subpoena may seek a protective order pursuant to Rule 2-403 or may file, within ten days after service of the subpoena, an objection to production of any or all of the designated materials. The objection shall be in writing and shall state the reasons for the objection. If an objection is filed, the party serving the subpoena is not entitled to production of the materials except pursuant to an order of the court from which the subpoena was issued. At any time before or within 15 days after completion of the deposition and upon notice to the deponent, the party serving the subpoena may move for an order to compel the production." See also Md. R. Civ. Proc. 3-510(f) (substantially the same except that there is no reference to “electronically stored information.”).

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d. Language

The rules do not specify a requirement for the use of stock language or preferred text in a motion. However, the general provisions of the Maryland Rules provide guidance as to the proper form of court papers, which apply to all motions (i.e., caption and titling, designation of parties and attorneys, size of papers, legibility and durability, existing documents, verification and corporate seal unnecessary). See Md. R. Civ. Proc. 1-301(a) - (f).

Statement of grounds and authorities -- Md. R. Civ. Proc. 2-311 (c) -- "A written motion and a response to a motion shall state with particularity the grounds and the authorities in support of each ground."

Statement of grounds; exhibits -- Md. R. Civ. Proc. 3-311(b) -- "A written motion and a response to a motion shall state with particularity the grounds. A party shall attach as an exhibit to a written motion or response any document that the party wishes the court to consider in ruling on the motion or response unless the document is adopted by reference as permitted by Rule 3-303(d) or set forth as permitted by Rule 3-421(g)."

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e. Additional material

Md. R. Civ. Proc. 3-311(b) -- "A party shall attach as an exhibit to a written motion or response any document that the party wishes the court to consider in ruling on the motion or response unless the document is adopted by reference as permitted by Rule 3-303(d) or set forth as permitted by Rule 3-421(g)."

See also, Md. R. Civ. Pro. 2-311.

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4. In camera review

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a. Necessity

There is no statute or case law requiring the court to conduct an in camera review of materials or interview with the reporter prior to deciding on a motion to quash.

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An adverse ruling resulting from in camera review of documents does not entitle the person submitting the documents to an automatic stay pending appeal. In re Grand Jury Subpoena (Under Seal), 774 F.2d 624, 627 (4th Cir. 1985) (appellant's motion for stay pending appeal was denied after in camera review of subpoenaed documents where court concluded the documents were not covered by the attorney-client privilege).

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c. Consequences of refusing

There is no case law documenting the consequences of a refusal to consent to an in camera review.

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5. Briefing schedule

Filing of Briefs -- There are no rules dictating the regular briefing schedule for a motion to quash. Typically, the rules regarding briefing schedules vary by county.

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6. Amicus briefs

There is no rule or case law either permitting or prohibiting the filing of amicus briefs at the district or circuit court levels.

Amicus briefs are explicitly permitted at the appellate level -- Md. R. App. Rev., Ct. App. & Ct. Special App. 8-511(a) -- An amicus brief may be filed with written consent of all parties to the appeal; by the Attorney General in any appeal in which the State has an interest; upon request by the court; or upon the court’s grant of a motion filed pursuant to section (b) of this Rule.

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VI. Substantive law on contesting subpoenas

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A. Burden, standard of proof

The Maryland Shield Law explicitly requires a showing of "clear and convincing evidence" by the party seeking disclosure of protected news or information. Md. Cts. & Jud. Proc. Code Ann. § 9-112(d)(1) (2017).

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B. Elements

The party seeking protected news or information must show by clear and convincing evidence that:

(i) The news or information is relevant to a significant legal issue before any judicial, legislative, or administrative body, or anybody that has the power to issue subpoenas;

(ii) The news or information could not, with due diligence, be obtained by any alternate means; and

(iii) There is an overriding public interest in disclosure.

Md. Cts. & Jud. Proc. Code Ann. § 9-112 (d)(1)(i)-(iii) (emphasis added).

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1. Relevance of material to case at bar

The party seeking protected news or information must show by clear and convincing evidence that “[t]he news or information is relevant to a significant legal issue before any judicial, legislative, or administrative body, or anybody that has the power to issue subpoenas.” Md. Cts. & Jud. Proc. Code Ann. § 9-112 (d)(1)(i).

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2. Material unavailable from other sources

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a. How exhaustive must search be?

Maryland case law has not addressed this issue.

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

The subpoenaing party must demonstrate by clear and convincing evidence that it has exhausted all other avenues for the information it seeks from the news media member. See Md. Cts. & Jud. Proc. Code Ann. § 9-112 (d)(1)(ii).

In WBAL-TV Division v. State, the court concluded that the lower court had correctly found that the information sought was not otherwise available from non-media sources where WBAL was the sole possessor of the protected information and where the only individuals present when the protected information was recounted could not be expected to remember the information word for word. The court further reasoned . . . “the State was seeking verbatim statements. [T]he statements . . . constituted voluntary admissions of a criminal defendant [that] could not be duplicated through subsequent questioning.” WBAL-TV Division v. State, 477 A.2d 776, 10 Media L. Rep. 2121 (Md. 1984). In Prince George’s County v. Hartley, 822 A.2d 537, 31 Med. L. Rep. 1679 (Md. App. 2003), the Court indicated the due diligence prong was satisfied by a government investigator’s affidavit, without cross-examination, indicating the investigator had interviewed other potential sources of information, none of whom claimed to have relevant knowledge.

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c. Source is an eyewitness to a crime

"Where a newsman, by dint of his own investigative efforts, personally observes conduct constituting the commission of criminal activities by persons at a particular location, the newsman, and not the persons observed, is the 'source' of the news or information . . . [and] appellant can lawfully be directed to disclose [the news or information observed as] these questions do not go to the 'source' of the appellant's publication and they must be answered." Lightman v. State, 294 A.2d 149 (Md. Ct. Spec. App. 1972), aff'd, 295 A.2d 212 (Md. 1972), cert. denied, 411 U.S. 951 (1973). Prince George’s County v. Hartley, supra (same).

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3. Balancing of interests

In Maryland, the reporter's privilege should be evaluated by achieving a balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal or tortious conduct. Tofani v. State, 465 A.2d 413, 9 Media L. Rep. 2193 (Md. 1983) (overturned by statute on other grounds).

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4. Subpoena not overbroad or unduly burdensome

"It is well established that an enforcing court may limit through modification or partial enforcement subpoenas it finds to be unduly burdensome." Equitable Trust Co. v. State Comm'n on Human Relations, 411 A.2d 86 (Md. 1979) quoting FTC v. Texaco, Inc. 517 F.2d 137 (D.C. Cir. 1975).

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5. Threat to human life

Maryland law has not addressed this.

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6. Material is not cumulative

Maryland law has not addressed this.

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7. Civil/criminal rules of procedure

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8. Other elements

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C. Waiver or limits to testimony

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1. Is the privilege waivable?

Yes, but under Md. Cts. & Jud. Proc. Code Ann. 9-112(e) disclosure of sources does not waive the privilege.

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2. Elements of waiver

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a. Disclosure of confidential source's name

Maryland's statute provides absolute protection against compelled disclosure of confidential sources, even if the source's identity has been published.

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b. Disclosure of non-confidential source's name

Maryland's statute provides absolute protection against compelled disclosure of non-confidential sources, even if the source's identity has been published.

In Lightman v. State, the Maryland Court of Special Appeals reasoned that the Maryland statute did "not purport to protect a newsman from disclosing only such sources of news or information published by him that was received in the course of a confidential newsman-informant relationship" and found the privilege "broad enough to encompass any source of news or information, without regard to whether the source gave his information in confidence or not." Lightman v. State, 294 A.2d 149 (Md. Ct. Spec. App. 1972), aff'd, 295 A.2d 212 (Md. 1972), cert. denied, 411 U.S. 951 (1973).

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c. Partial disclosure of information

The reporter's privilege is not deemed waived by partial disclosure of information. Specifically, the Maryland Shield Law establishes that: If any person covered by the statute disseminates . . . any portion of the news or information procured while pursuing professional activities, the protection from compelled disclosure under this section is not waived by the person. Md. Cts. & Jud. Proc. Code Ann. § 9-112 (e).

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d. Other elements

None.

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3. Agreement to partially testify act as waiver?

Maryland cases do not address whether a reporter's agreement to partially testify results in waiver of the privilege. If disclosure in the media does not constitute waiver, then partial testimony should not constitute waiver, especially as to source identity. Also, because Maryland has historically shown a strong commitment to freedom of the press, such partial testimony is not likely to result in waiver of the privilege. See Telnikoff v. Matusevitch, 702 A.2d 230, 25 Media L. Rep. 2473 (Md. 1997).

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VII. What constitutes compliance?

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A. Newspaper articles

Maryland Rule of Evidence 5-902 establishes that newspapers are self-authenticating. The rule provides "[e]xcept as otherwise provided by statute, extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to . . . [p]rinted materials purporting to be newspapers or periodicals." Md. R. Evid. 5-902(a)(6) (2017).

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B. Broadcast materials

Maryland case law does not address which, if any, representative of a broadcaster must appear when turning over tapes of material that was aired.

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C. Testimony vs. affidavits

Reporter's affidavit does not take place of testimony. Prince George's County v. Hartley, 822 A.2d 537, 31 Med. L. Rep. 1679 (Md. App. 2003).

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D. Non-compliance remedies

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1. Civil contempt

Maryland courts have issued contempt orders in relation to reporters' failing to comply with subpoenas. See WBAL-TV Division, 477 A.2d 776 and Lightman, 294 A.2d 149. However, Maryland cases have not addressed the fines and/or jail time assessed as a result of contempt orders. The Maryland Rules allow "[t]he court against which a direct civil or criminal contempt has been committed [to impose] sanctions on the person who committed it . . ." Md. R. Other Special Proceedings 15-203(a) (2017).

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a. Fines

Maryland cases do not provide examples of fines levied against reporters who refused to comply with court orders. In addition, Maryland cases do not address whether fines are capped for civil contempt

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b. Jail

Maryland cases do not provide examples of reporters who were jailed rather than disclose the names of confidential sources or information. In addition, Maryland cases do not address whether jail sentences are limited.

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2. Criminal contempt

Maryland Rules allow "[t]he court against which a direct civil or criminal contempt has been committed [to impose] sanctions on the person who committed it . . ." Md. R. Other Special Proceedings 15-203(a) (2017).

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3. Other remedies

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VIII. Appealing

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A. Timing

Appeals from Final Judgments

Court of Special Appeals

Under Rule 8-202(a), "Except as otherwise provided in this Rule or by law, the notice of appeal shall be filed within 30 days after entry of the judgment or order from which the appeal is taken." Md. R. Evid. 8-202(a) (2017).

Under 8-202(f), "'Entry' as used in this Rule occurs on the day when the clerk of the lower court enters a record on the docket of the electronic case management system, used by that court”. Md. R. App. Rev., Ct. App. & Ct. Special App. 8-202(f) (2017). See also WBAL-TV Division, 477 A.2d 776 (Md. 1984).

Court of Appeals

Rule 8-302 provides the parameters for petitioning for writ of certiorari.

From appeal to Court of Special Appeals. "If a notice of appeal to the Court of Special Appeals has been filed pursuant to Rule 8-201, a petition for a writ of certiorari may be filed either before or after the Court of Special Appeals has rendered a decision, but not later than 15 days after the Court of Appeals issues its mandate or 30 days after the filing of that court’s decision." Md. R. App. Rev., Ct. App. & Ct. Special App. 8-302(a) (2017).

By other party. "If a timely petition for a writ of certiorari is filed by a party, any other party may file a petition for a writ of certiorari within 15 days after the date on which the first timely petition was filed or within any applicable time otherwise prescribed by this Rule, whichever is later. Md. R. App. Rev., Ct. App. & Ct. Special App. 8-302(c) (2017).

Right of Appeal—§12-301 of the Courts and Judicial Proceedings Article provides:

"[A] party may appeal from a final judgment entered in a civil or criminal case by a circuit court. The right of appeal exists from a final judgment entered by a court in the exercise of original, special, limited, statutory jurisdiction, unless in a particular case the right of appeal is expressly denied by law." Md. Code. Ann., Cts. & Jud. Proc. § 12-301 (2017).

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1. Interlocutory appeals

Appeal of Injunction: A party may appeal from any of the following interlocutory orders, inter alia, entered by a circuit court in a civil case:

An order:

(i) Granting or dissolving an injunction, but if the appeal is from an order granting an injunction, only if the appellant has first filed his answer in the cause.

(ii) Refusing to dissolve an injunction, but only if the appellant has first filed his answer in the cause.

(iii) Refusing to grant an injunction; and the right of appeal is not prejudiced by the filing of an answer to the bill of complaint or petition for an injunction on behalf of any opposing party, nor by the taking of depositions in reference to the allegations of the bill of complaint to be read on the hearing of the application for an injunction.

Md. Code. Ann., Cts. & Jud. Proc. § 12-303 (2017).

The Court of Special Appeals of Maryland has ruled that denial of the media's motion to intervene is an appealable order. This ruling coincides with the court's finding that "[s]imply because a trial may have reached a certain stage does not mean that First Amendment rights are greater or less than at any other stage." Hearst Corp. v. State, 484 A.2d 292, 295 (Md. 1984).

The Court of Special Appeals recognizes the right of a non-party to an immediate appeal of order compelling the non-party to testify. Forensic Advisors, Inc. v. Matrixx Initiatives, Inc., 907 A.2d 855, 35 Med. L. Rep. 1115, (Md. App. 2006), appeal dism'd, 918 A.2d 468 (Md. 2007).

Contempt: § 12-402 of the Courts and Judicial Proceedings Article provides:

"Any person may appeal from any order or judgment passed to preserve the power or vindicate the dignity of the court and adjudging him in contempt of court. This includes an interlocutory order, remedial in nature, adjudging any person in contempt, whether or not a party to the action."

Md. Code Ann., Cts. & Jud. Proc. § 12-402 (2017).

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2. Expedited appeals

Maryland Court of Special Appeals

Maryland procedure for expedited appeals includes, inter alia:

By election of parties.

(1) Election. Within 20 days after the first notice of appeal is filed or within the time specified in an order entered pursuant to Rule 8-206(c), the parties may file with the Clerk of the Court of Special Appeals a joint election to proceed pursuant to this Rule.

(2) Statement of case and facts. Within 15 days after the filing of the joint election, the parties shall file with the Clerk four copies of an agreed statement of the case, including the essential facts, as prescribed by Rule 8-413(b). By stipulation of counsel filed with the clerk, the time for filing the agreed statement of the case may be extended for no more than an additional 30 days.

(3) Withdrawal. The election is withdrawn if (1) within 15 days after its filing the parties file a joint stipulation to that effect or (2) the parties fail to file the agreed statement of the case within the time prescribed by subsection (b)(2) of this Rule. The case shall then proceed as if the first notice of appeal had been filed on the date of the withdrawal.

. . .

(9) Decision. Except in extraordinary circumstances or when a panel of the Court recommends that the opinion be reported, the decision shall be rendered within 20 days after oral argument, or if all parties submitted on brief, within 30 days after the last submission.

Md. R. App. Rev., Ct. App. & Ct. Special App. 8-207 (a)(1) - (a)(3), (a)(9) (2017).

Rule 8-206(c) provides: The court shall enter an order to proceed with an appeal if it does not first enter an order referring the parties to alternative dispute resolution or directing the parties to appear for a scheduling conference or if, upon conclusion of the dispute resolution process or the scheduling conference, it does not appear the appeal will be dismissed. Md. R. App. Rev., Ct. App. & Ct. Special App. 8-206(c) (2017).

Rule 8-413(b) provides in pertinent part that: "If the parties agree that the questions presented by an appeal can be determined without an examination of all the pleadings and evidence, they may sign and, upon approval by the lower court, file a statement showing how the questions arose and were decided, and setting forth only those facts or allegations that are essential to a decision of the questions. The parties are strongly encouraged to agree to such statement. . . ." Md. R. App. Rev., Ct. App. & Ct. Special App. 8-413(b) (2017).

Rule 2-602(a) provides that: "Except as provided in section (b) of this Rule, an order or other form of decision, however designated, that adjudicates fewer than all of the claims in an action . . . or that adjudicates less than an entire claim, or that adjudicates the rights and liabilities of fewer than all the parties to the action: (1) is not a final judgment, (2) does not terminate the action as to any of the claims or any of the parties; and (3) is subject to revision at any time before the entry of a judgment that adjudicates all of the claims by and against all of the parties." Md. R. Civ. Proc. 2-602(a) (2017).

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B. Procedure

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1. To whom is the appeal made?

There is a right to appeal to the Maryland Court of Special Appeals and a privilege to seek, by certiorari, a hearing before the Maryland Court of Appeals.

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2. Stays pending appeal

Rule 8-422 provides: Except as otherwise provided in the Code or Rule 2-632, an appellant may stay the enforcement of any other civil judgment from which an appeal is taken by filing with the lower court a supersedeas bond …. Md. R. App. Rev., Ct. App. & Ct. Special App. 8-422(a) (2017).

Rule 2-632 in pertinent part provides that:

(a) On motion of a party the court may stay the operation or enforcement of an interlocutory order on whatever conditions the court considers proper for the security of the adverse party. The motion shall be accompanied by the moving party's written statement of intention to seek review of the order on appeal from the judgment entered in the action.

(b) Except as otherwise provided in this Rule, enforcement of a money judgment is automatically stayed until the expiration of ten days after its entry.

. . .

(e) Except as provided in this section . . . a stay pending appeal is governed by Rules 8-422 through 8-424. If the court determines that because of the nature of the action enforcement of the judgment should not be stayed by the filing of a supersedeas bond or other security, it may enter an order denying a stay or permitting a stay only on the terms stated in the order. Md. R. Civ. Pro. 2-632 (a) - (b), (e) (2017).

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3. Nature of appeal

There is a right to appeal to the Maryland Court of Special Appeals and a privilege to seek, by certiorari, a hearing before the Maryland Court of Appeals. Section 12-301 of Maryland's Courts and Judicial Proceedings Article provides that ". . . a party may appeal from a final judgment entered in a civil or criminal case by a circuit court. The right of appeal exists from a final judgment entered by a court in the exercise of original, special, limited, statutory jurisdiction, unless in a particular case the right of appeal is expressly denied by law. In a criminal case, the defendant may appeal even through imposition or execution of sentence has been suspended. In a civil case, a plaintiff who has accepted a remittitur may cross-appeal from the final judgment." Md. Code Ann., Cts. & Jud. Proc. §12-301 (2017).

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4. Standard of review

Maryland applies a normal standard of review by deferring to the fact finder for questions of fact and reviewing appeals for errors of law.

When the issue is whether a constitutional right has been infringed, Maryland courts make their own independent constitutional appraisal. Crosby v. State, 784 A.2d 1102, 1106 (Md. 2001). See also Stokes v. State, 765 A.2d 612, 615 (Md. 2001) (quoting Jones v. State, 682 A.2d 248, 253 (Md. 1996).

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5. Addressing mootness questions

Courts may address moot issues in circumstances requiring a decision in the public interest. The Maryland Court of Appeals has held: If the public interest will clearly be hurt if the question is not immediately decided, if the matter is likely to recur frequently and its recurrence will involve a relationship government and its citizens, or a duty of government, and upon any recurrence the same difficulty which prevented the appeal at hand from being heard in time is likely again to prevent a decision, then the Maryland Court of Appeals may find justification for deciding issues raised by a question which has become moot. Maryland v. Sheridan, 236 A.2d 18 (Md. 1967), quoting Lloyd v. Bd.of Supervisors of Elections, 111 A.2d 379 (Md. 1954).

Although the issue before the court was moot, the Court of Special Appeals of Maryland ruled that a "constitutional right to intervene is not suspended or abrogated merely because of the chronological moment at which it is raised." Hearst Corp. v. State, 484 A.2d 292 (Md. 1984).

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6. Relief

Appellate courts can quash subpoenas. See Tofani v. State, 465 A.2d 413, 9 Media L. Rep. 2193 (Md. 1983).

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IX. Other issues

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A. Newsroom searches

Maryland case law does not discuss the impact and/or use of the Federal Privacy Protection Act (the search and seizure by government officers and employees in connection with investigation or prosecution of a criminal offense) within the State. There are no similar provisions under Maryland law.

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B. Separation orders

Maryland case law does not discuss a reporter's protection limiting the scope of separation orders issued against reporters who are both trying to cover the trial and are on a witness list.

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C. Third-party subpoenas

Maryland case law does not discuss a media interest in fighting subpoenas issued to third parties in an attempt to discover a reporter's source. Specifically, the Maryland Shield Law applies to persons employed by the news media in a news gathering or news disseminating capacity; independent contractors of the news media acting within the scope of a contract in any news gathering or news disseminating capacity; and enrolled post-secondary students engaged in any news gathering or news disseminating capacity recognized by the institution as a scholastic activity or in connection with a school-related activity. Md. Cts. & Jud. Proc. Code Ann. § 9-112(b).

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D. The source's rights and interests

The Supreme Court has held that newspaper publishers have no special immunity from the application of general laws. Cohen v. Cowles Media Co., 501 U.S. 663 (1991). In this case, not only was the source able to sue the defendant newspaper publisher for disclosure, but the newspaper publisher was held liable for breach of contract based on promissory estoppel. Id.

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