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Michigan

Reporter's Privilege Compendium

Brian D. Wassom
Joseph Rockwell
Christian Rhoades
Warner Norcross + Judd LLP
45000 River Ridge, Ste. 300
Clinton Twp., MI 48038
(586) 303-4139
bwassom@wnj.com

Last updated Aug. 2021

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I. Introduction: History & Background

Michigan recognizes a qualified privilege for journalists served with a subpoena against the disclosure of unpublished information. In a significant Michigan appellate decision, the court stated that a reporter could not be compelled to identify confidential sources or to relay confidential information without a showing that the information was critical to the subpoenaing party’s case and that there were no other sources for the information. In re Photo Mktg Ass’n Int’l, 120 Mich. App. 527, 529–31, 327 N.W.2d 515 (1982) (citing Branzburg v. Hayes, 408 U.S. 665 (1972)).

In addition, Michigan statutes provide protection to reporters from subpoenas issued in grand jury proceedings regarding communications with, and identification of, “informants” and from subpoenas issued by prosecutors, unless they are the object of the investigation. MCL 767.5a; MCL 767A.6. Under the grand jury statute, the privilege applies except in cases involving life imprisonment, in which case the privilege is limited in the same manner as subpoenas issued in civil cases. MCL 767.5a(1). Therefore, to compel disclosure, the information must be critical to the subpoenaing party’s case, the reporter must be the only source of the information, and the information must be relevant. Id.; In re Photo Mktg Ass’n Int’l, 120 Mich. App. at 529–31.

Another Michigan Court of Appeals case, for example, required newspapers to produce nonconfidential photographs, both published and unpublished, of a fire scene. Marketos v. Am. Emps. Ins. Co, 185 Mich. App. 179, 199, 460 N.W.2d 272 (1990). However, the holding in the case is limited by the fact that the newspaper had routinely provided photographs for the cost of reproduction until a month before the request for photographs in question was made. Id. at 183. Under the circumstances of the case, the newspaper was unable to file an affidavit with regard to the burden of providing photographs since it had clearly done so for many years before. Id.

Trial courts, however, have been liberal in their willingness to protect reporters from burdensome requests for information, whether testimony or notes. See In re DaimlerChrysler AG Sec. Litig., 216 F.R.D. 395, 407 (E.D. Mich. 2003) (finding that reporters are protected from compelled disclosure of unpublished information obtained from named informants).

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II. Authority for and source of the right

As discussed in the foreword, in Michigan, the reporter’s privilege is created by case law, although there are two statutes which limit subpoenas on reporters for grand jury proceedings and prosecutor’s investigatory subpoenas.

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A. Shield law statute

Michigan has two statutory provisions or shield laws which limit the use of subpoenas on journalists. One is for grand jury proceedings, and the other concerns subpoenas issued by prosecutors. MCL 767.5a; MCL 767A.6.

MCL 767.5a(1), which limits the use of subpoenas in grand jury proceedings, provides as follows:

A reporter or other person who is involved in the gathering or preparation of news for broadcast or publication shall not be required to disclose the identity of an informant, any unpublished information obtained from an informant, or any unpublished matter or documentation, in whatever manner recorded, relating to a communication with an informant, in any inquiry authorized by this act, except an inquiry for a crime punishable by imprisonment for life when it has been established that the information which is sought is essential to the purpose of the proceeding and that other available sources of the information have been exhausted.

Additionally, MCL 767A.6(1) provides that prosecutors may apply to a circuit court judge for a subpoena in order to compel testimony of witnesses to investigations of criminal conduct. MCL 767A.6(6) protects reporters and provides:

A reporter or other person who is involved in the gathering or preparation of news for broadcast or publication is not required to disclose the identity of an informant, any unpublished information obtained from an informant, or any unpublished matter or documentation, in whatever manner recorded, relating to a communication with an informant, in any inquiry conducted under this chapter. A reporter or other person who is involved in the gathering or preparation of news for broadcast or publication is subject to an inquiry under this chapter only under the following circumstances:

(a) to obtain information that has been disseminated to the public by media broadcast or print publication.

(b) If the reporter or other person is the subject of the inquiry.

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B. State constitutional provision

There is no state constitutional provision, other than a state free speech clause, governing a reporter’s privilege. No state constitutional provision has been read to create a reporter’s privilege.

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C. Federal constitutional provision

In Marketos v. American Employers Insurance Company, the Michigan court of appeals rejected a reporter’s privilege based upon the First Amendment. 185 Mich. App. 179, 196, 460 N.W.2d 272 (1990). However, the case has limited application due to its unique set of facts. The request was solely for unpublished photographs and the newspaper had, until just prior to litigation, made such photographs available upon request for a modest fee. Id. at 183. Furthermore, the newspaper did not present an affidavit describing the burdens a subpoena places on photographers or the newspaper. Id. at 196.

Michigan courts have declined to recognize a constitutional basis for objecting to subpoenas of reporters on several occasions. However, most court decisions regarding the subpoena of reporters follow the Branzburg formula: (1) the subpoena must seek highly relevant information; (2) there must not be another available source of the information; and (3) the court must consider the fallout from disclosure of a confidential source’s identity. Id. at 188 (citing Branzburg, 408 U.S. at 665). When such information is sought, more deference is given to confidential sources and source material than non-confidential sources or material. See McArdle v. Hunter, 7 Media L. Rep. 2294 (E.D. Mich. 1981) (finding that where confidential material is sought, the requesting party must demonstrate that the information is crucial to that party’s case).

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D. Other sources

Michigan has a court rule similar to Federal Rule of Civil Procedure 45(d)(2) and (3), allowing objections to burdensome subpoenas. See MCR 2.305(6). The Michigan rule allows the subpoenaed party ten days to object to the subpoena after it has been presented. Id. Additionally, the subpoenaed party can move to modify or quash a subpoena that they believe to be unreasonable or oppressive. MCL 2.305(4)(a).

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III. Scope of protection

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A. Generally

Journalists have a qualified privilege for unpublished materials in Michigan. One appellate case required that the material be confidential as well as unpublished. In re Photo Mktg. Ass’n Int’l, 120 Mich. App. 527, 529­–31, 327 N.W.2d 515 (1982). This privilege, created by case law, does not hold as much weight as the privilege applicable in grand jury proceedings and for prosecutor’s investigatory subpoenas, which is created by statute and is nearly absolute. See MCL 767.5a; MCL 767A.6(6).

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B. Absolute or qualified privilege

As interpreted in Michigan law, there is a qualified privilege for some unpublished information. The Michigan Court of Appeals has held that the material must be confidential to be eligible for the qualified privilege. In re Photo Mktg. Ass’n Int’l, 120 Mich. App. at 531. However, the statutory privilege given to journalists to resist grand jury and prosecutor's investigatory subpoenas is nearly absolute. MCL 767.5a; MCL 767A.6(6).

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C. Type of case

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1. Civil

In civil cases, the court usually evaluates the relative burdens on the parties to produce information. Generally, the court will not subject a reporter to a fishing expedition, i.e. broad discovery early in the litigation, but will require the reporter to produce information if the party issuing the subpoena has done substantially all of its discovery and the reporter appears to be the only witness.

This deference is based upon basic discovery etiquette rather than any special status of the media. In the case of Marketos v. American Employers Insurance Company, the Michigan Court of Appeals required the newspaper to produce photographs, published and unpublished, of a suspicious fire to an insurance company. 185 Mich. App. 179, 199, 460 N.W.2d 272 (1990). However, the case holding is limited because the newspaper had just ended its policy of selling photographs for $5.00. Id. at 183. The court obviously was influenced by this recent change in policy. The court of appeals quoted the following colloquy of the trial court and counsel:

The Court: The News has usually been pretty good about: you pay your dollar and they’ll you have copies . . . It used to be a friendly newspaper that tried to help out the rest of the community.

Mr. Rowe [Attorney for newspaper]: Well, I think The News still thinks of itself as a friendly newspaper, Your Honor.

The Court: But they’re refusing to let them have copies of a few photographs . . . even if they pay them for it.

Id. at 183–84.

Despite the negative holding of the court of appeals in Marketos, Michigan courts have continued to provide protection to reporters and photographers. See In re DaimlerChrysler AG Sec. Litig., 216 F.R.D. at 395 (protecting reporters from compelled disclosure of confidential information obtained from an informant). The Michigan Legislature also has recognized a reporter’s privilege to be free from subpoenas in the grand jury setting in MCL 767.5a, which is arguably an arena where the government’s interest in reporters’ knowledge is high. Further, the Michigan Legislature has also recognized a reporter’s privilege in MCL 767A.6(6) in proceedings by prosecutors to obtain investigatory subpoenas before charges are issued.

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2. Criminal

In the criminal setting, courts are very sensitive to the defendant’s rights under the Sixth Amendment to a fair trial. However, most judges require a high degree of materiality before burdening the press.

In addition, the Michigan courts have held in In re Investigation of March 1999 Riots in East Lansing, that the Michigan Court Rule on subpoenas, MCR 2.506, is not applicable to criminal discovery. 463 Mich. 378, 386, 617 N.W.2d 310 (2000). Rather, criminal discovery is governed by a different court rule, MCR 6.201, that does not provide for subpoenas on reporters and prohibits discovery of information protected by privilege. Id. at 380 n.1 (citing MCR 6.201(C)(1)). The court rebuffed attempts of the county prosecutor to obtain unpublished photographs taken by photographers from the Lansing State Journal during the riots following a college championship basketball game. Id. at 384. The prosecutor first tried to subpoena the unpublished photographs under the general court rule in its prosecution of the defendant. Id. at 380–81. The Supreme Court held that the general rule on subpoenas was only applicable to civil cases and criminal trials and was not applicable to discovery in criminal cases. Id. at 380 n.1.

The prosecutor then sought an investigatory subpoena under MCL 767A.1, but this same statute has a specific exclusion for the media, as discussed above. Id. at 381. The prosecutor nonetheless sought to avoid the privilege. Id. The Supreme Court held that where the media representatives had obtained the photographs in the gathering of news, had not distributed this particular material to the public and the reporters were not the subject of the inquiry, the statute prohibited the prosecutor from obtaining an investigatory subpoena. Id. at 384. The language of the statute clearly created an absolute privilege against subpoenas on reporters so long as the material was unpublished and the reporter was not the subject of the inquiry. Id.

That said, when a reporter receives a subpoena for materials or testimony to be presented at a criminal trial, as opposed to investigation or discovery, the analysis returns to the Branzburg principles.

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3. Grand jury

In Michigan, grand jury subpoenas against reporters are subject to a statute, which provides strong protection against such subpoenas. MCL 767.5a(1). The prohibition against subpoenas to reporters applies to the identity of sources and the unpublished information given by such “informants.” Id. There is no requirement that the informant have a confidential relationship with the reporter.

However, the statute does provide that a subpoena will issue to a reporter if the grand jury is investigating a crime punishable by imprisonment for life, but only when it has been established that the information sought is essential to the purpose of the proceeding and other available sources of the information have been exhausted. Id.

Thus, protection for reporters from subpoenas issued by grand juries is strong in Michigan.

Prosecutor’s subpoenas

Michigan statutes also provide for a special prosecutor’s subpoena to be used in connection with law enforcement investigations. See MCL 767A.2 (authorizing prosecutors to petition for investigative subpoenas). In response to complaints by law enforcement that witnesses in many investigations, especially drug-related investigations, were uncooperative, the legislature enacted a law allowing prosecutors to apply for special subpoenas from judges. See MCL 767A.3 (allowing a judge to authorize a prosecuting attorney to issue investigative subpoenas if certain circumstances are met). The subpoenas required witnesses to appear before the prosecutor before any charges were filed to answer questions propounded by the prosecutor. Id.

The prosecutor’s subpoena is essentially a one-person grand jury. See MCL 767A.5 (explaining that this investigative subpoena requires the party served to appear before the prosecutor to answer questions regarding the felony being investigated or produce relevant documents). However, reporters are immune from such subpoenas unless they are the target of the investigation or the information has been published. MCL 767A.6(6)

In a highly publicized case, the Lansing State Journal refused to give the Ingham County Prosecutor its unpublished photographers of rioters on the campus of Michigan State University. March 1999 Riots in East Lansing, 463 Mich. at 381. The Supreme Court of Michigan upheld the Journal’s statutory right to be exempt from the prosecutor’s subpoena. Id. at 386.

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D. Information and/or identity of source

As noted above, the statutory privileges prohibiting grand jury and prosecutor-issued subpoenas protect the identity of, and information supplied by, the source without respect to confidentiality. See MCL 767.5a; MCL 767A.6(6). However, in civil and other criminal matters, whether the information and the informant's identity are confidential is relevant to whether the court permits the subpoenaed information to be compelled. Courts are less likely to prohibit subpoenas for non-confidential information. See Marketos, 185 Mich. App. at 199 (holding that the Michigan press shield law provides no protection for non-confidential materials in a civil case).

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E. Confidential and/or nonconfidential information

As noted above, the statutory privileges prohibiting grand jury and prosecutor-issued subpoenas protect the identity of, and information supplied by, the source without respect to confidentiality. See MCL 767.5a; MCL 767A.6(6). However, in civil and criminal matters before the court, the confidentiality of the information and the informant's identity are important. See Marketos, 185 Mich. App. at 199 (holding that the Michigan press shield law provides no protection for non-confidential materials in a civil case). Courts are less likely to prohibit subpoenas for non-confidential information. See id.

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F. Published and/or non-published material

The two statutory privileges against subpoenas on reporters only apply to non-published information. See MCL 767.5a; MCL 767A.6(6). Thus, subpoenas for published information are difficult to quash.

However, Michigan has a rule of evidence which makes newspaper articles self-authenticating. See MRE 902(6). This means it is not necessary for the reporter to appear to establish that the article in fact appeared in the newspaper. Michigan Rule of Evidence 902(6) provides:

Extrinsic evidence of authenticity [that is to say, an editor or reporter or photographer testifying, "Yes, we published that story or photograph"] as a condition precedent to admissibility is not required with respect to . . . printed materials purporting to be newspapers or periodicals.

This reduces the opportunity for parties to question the reporter on related matters.

There is no statutory protection that applies if the material at issue is published. Cf. MCL 767A.6(6) (providing statutory protection for unpublished materials only). Generally, parties attempt to limit the scope of the examination of the reporter about the published material.

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G. Reporter's personal observations

There are no Michigan cases distinguishing this situation from a reporter's stories based on third-party observations. However, caution should be exercised. If, for example, the reporter saw a fire while acting as a reporter, there may be a basis for asserting the privilege. See Marketos, 185 Mich. App. at 194–95 (citing Alexander v. Chicago Park Dist., 548 F. Supp. 277, 278 (N.D. Ill. 1982)). However, if the reporter lived next door to the fire and saw because he could not help but see it, assertion of the privilege would be difficult. See id.

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H. Media as a party

There are no reported cases distinguishing the application of the privilege in a case in which the media is a party versus one in which the media is not a party.

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I. Defamation actions

There are no reported cases in which the issue has arisen. Trial courts are open to the argument that the privilege should be the same regardless of the media's status as a defendant.

In a federal case, the trial court granted summary disposition and refused to allow the plaintiff to obtain discovery from the libel defendant, Southern Poverty Law Center, as to its confidential informant. Southwell v. S. Poverty L. Ctr., 949 F. Supp. 1303, 1315 (W.D. Mich. 1996).

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IV. Who is covered

Michigan courts have not definitively made distinctions on the basis of the news gatherer's status. The major appellate decision on the topic involved an international trade association of photo dealers and photofinishers which gathered data concerning the operations and activities of its members and published trade news periodicals. See In re Photo Mktg. Ass’n Int’l, 120 Mich. App. at 527. Although not a traditional news media outlet, the court found sufficient facts to justify the possible application of a news writer's privilege and remanded the matter to the trial court to determine the applicability of a news writer's privilege to the respondent. Id.

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A. Statutory and case law definitions

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1. Traditional news gatherers

The statutes granting a privilege do not contain any definitions of reporter, editor, news, photojournalist or media. However, MCL 767.5a(1) provides that any person “who is involved in the gathering or preparation of news for broadcast or publication shall not be required to disclose the identity of an informant, any unpublished information obtained from an informant, or any unpublished matter or documentation, in whatever manner recorded, relating to a communication with an informant.” This privilege is granted in order to ensure the “unimpeded flow of information, comment, and public opinion.” In re Photo Mktg. Ass’n Int’l, 120 Mich. App. at 530 (citing Riley v. City of Chester, 612 F.2d 708, 715 (3d Cir. 1979)).

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a. Reporter

The statutes granting a privilege do not contain any definitions of reporter, editor, news, photo journalist or media. Nor do cases draw any distinctions among news gatherers. However, In re Photo Marketing held that Michigan law protects “reporters of general news” as well as “writers of technical news.” 120 Mich. App. at 530–31 (citing Branzburg, 408 U.S. at 665). Reporters of general news are said to compile information for the purpose of “creating a news story of interest to the ‘general public,’” while those who report technical news compile information intended for a “narrower audience,” such as those who are members of a trade community. Id. at 531. In order to obtain confidential information and infringe upon the qualified news writer’s privilege, which both classes of reporters ordinarily enjoy, one must satisfy the requirements adopted from Riley: (1) the information sought must “[go] to the heart of the litigant’s case,” id. at 532 (citing Riley, 612 F.2d at 716); (2) the party seeking the information must have sought the information from all other possible outlets, id.; and (3) the court must conduct an analysis of the potential harm that may be caused by ordering disclosure of a confidential source’s identity, Southwell, 949 F. Supp. at 1312.

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b. Editor

The statutes granting the news reporter’s qualified privilege do not contain any definitions of reporter, editor, news, photojournalist or media. Additionally, Michigan case law does not draw any distinctions among news gatherers.

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c. News

Neither case law nor the statutes recognizing the news reporter’s privilege define “news.”

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d. Photo journalist

Neither case law nor the statutes granting the news reporter’s privilege contain any definition of photo or media journalists. Similarly, the case law does not distinguish among members of the media.

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e. News organization/medium

The statutes granting the news reporter’s privilege do not contain any definitions of news organization or news medium. Rather, Michigan courts have considered whether a party represented a news organization on a case-by-case basis. See Hawkins v. Mercy Health Servs. Inc., 230 Mich. App. 315, 320, 583 N.W.2d 725 (1998) (finding that a hospital sued for defamation in two press releases does not constitute a media outlet).

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2. Others, including non-traditional news gatherers

There is no on-point case law that distinguishes between traditional and non-traditional news gatherers. However, as stated above, the Michigan Court of Appeals has recognized that those who gather and publish news for industrial trade publications rather than newspapers of general circulation are covered by the news reporter’s privilege. See In re Photo Mktg. Ass’n Int’l, 120 Mich. App. at 531.

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B. Whose privilege is it?

As stated in MCL 767A.6(6), the qualified news reporter’s privilege belongs to “[a] reporter or other person who is involved in the gathering or preparation of news for broadcast or publication.” This group is said to include reporters of general and technical news. In re Photo Mktg. Ass’n Int’l, 120 Mich. App. at 531. Those who report general news compile information for the “purpose of creating a news story of interest to the ‘general public.’” Id. Conversely, technical reporters summarize “confidential data” for a narrower audience, usually those who are a part of the same trade or industry. Id.

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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

Under Michigan Court Rule 2.506(C)(1), service of all subpoenas must be made at least two days before the time for appearance unless the court specifies otherwise. Service must be made personally, except parties to the case can be served by service on their attorney.

Service may be made by mail, although the recipient is not required to attend pursuant to a subpoena served by mail. See MCR 2.506(G)(2) (stating that if a subpoena by mail is not returned, the subpoena must be served by personal service). Therefore, in order to compel attendance, personal service of the subpoena must be obtained. Id. However, many lawyers mail or fax subpoenas with or without service fees. Such subpoenas are not sufficient to compel attendance. MCR 2.506(G)(3) (allowing service by email or facsimile in some settings but stating that, without confirmation, a subpoena must be served by personal service).

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2. Deposit of security

Service of the subpoena on a non-party must be accompanied by one day’s witness fee and mileage to the site of the taking of testimony or document production. MCR 2.506(G)(1).

In criminal cases, no fees are required.

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3. Filing of affidavit

No affidavit of cause is required.

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4. Judicial approval

Subpoenas must be signed by a magistrate or judge, or by an attorney in the case. See MCR 2.506(B)(1) (explaining that a subpoena signed by an attorney in the action has the effect of an order signed by the judge). In most circumstances, subpoenas are simply prepared and signed by an attorney and then served.

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5. Service of police or other administrative subpoenas

Subpoenas may be served by any competent adult who is not a party or by mail. MCR 2.103(A) (allowing for service by an adult who is not a party); MCR 2.506(G)(1) (allowing service by mail). Fees must be delivered with the subpoena. MCR 2.506(G)(1). The fees must be one day’s attendance plus mileage. Id.

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B. How to Quash

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1. Contact other party first

Although there is no requirement that you contact the other party, it is advisable to contact the party issuing the subpoena to try to limit the subpoena and to learn its purpose. Early contact will aid parties in defending against the subpoena. For example, if the issuing party simply wants a copy of the article for authentication purposes, the receiving party can provide that information and avoid the subpoena. Michigan Rule of Evidence 902(6) makes newspapers self-authenticating. Parties can also suggest other avenues for investigation that do not involve the reporter.

The most tedious subpoenas are those seeking “all articles published about the controversy that is the subject of the lawsuit.” See In re DaimlerChrysler AG Sec. Litig., 216 F.R.D. at 397 (involving service of a subpoena demanding all materials used in the preparation of a book). Most smaller newspapers have no method of accomplishing this other than sitting with the old issues and going through them one by one. Therefore, a call to the issuer of the subpoena offering a seat in the morgue or suggesting that they go to the public library, which usually has copies of back issues of the local newspapers, is in order.

Again, talking with the issuer may avoid a costly legal battle.

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2. Filing an objection or a notice of intent

Under Michigan Court Rule 2.506(H)(1), a person served with a subpoena may appear in person or by writing to explain why the person should not be compelled to comply with the subpoena. Alternatively, a motion to quash can be filed. MCR 2.506(H)(5). It is recommended that if the subpoena is for a court hearing, a letter of explanation or motion to quash precede the hearing.

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3. File a motion to quash

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a. Which court?

A motion to quash a subpoena is filed in the court from which the subpoena was issued. MCR 2.305(A)(4).

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b. Motion to compel

Because parties have the option to send in a written statement explaining why they should not have to appear, it is highly advisable that they respond to the subpoena rather than waiting for a motion to compel, especially if the subpoena seeks their appearance at a court hearing. See MCR 2.506(A)(3) (allowing a response to a subpoena explaining that the information sought is not reasonably accessible). There is no requirement that a party file a motion to quash first, but judges seem to respond better when parties send a letter of explanation or file the motion to quash rather than waiting until the motion to compel is filed.

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c. Timing

The only requirement is that the motion to quash should be noticed for hearing before the date in the subpoena. MCR 2.506(H)(5). Usually, a party can work with opposing counsel and the court on the time for hearing. However, that said, some attorneys are fond of issuing subpoenas on the eve of trial, putting the subpoenaed party and the court in the predicament of trying to handle a jury pool waiting for selection and finding time to hear a motion to quash. In these circumstances, a party has no choice but to work with the court and appear as directed.

Failure to respond to a subpoena, including appearance at any court hearing, makes it difficult to get the court to hear the subpoenaed party’s arguments and makes the granting of a motion to compel highly probable.

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d. Language

There is no special language; however, it is a good idea to have a reporter’s affidavit or an editor’s affidavit as to how the subpoena will interfere with news gathering activities.

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e. Additional material

The motion should be as short and to the point as possible since courts are busy and may view objections to subpoenas as a nuisance. Obviously, the attachment of an affidavit from the reporter is appropriate. However, brevity is the way to a judge’s heart.

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4. In camera review

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a. Necessity

There is no statutory or other requirement for in-camera review. But cf. MCL 767.5a; MCL 767A.6. In-camera review raises other problems, but to some extent the problems depend upon the circumstances. If the subpoena is seeking confidential information, even the court should not be allowed to see the material. The attorney representing the news organization also may not want to see the material to avoid complications if the material is confidential.

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There are no reported Michigan cases discussing the issue of waiver of the privilege based upon in-camera review.

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c. Consequences of refusing

There are no reported Michigan cases discussing the issue of waiver of the privilege based upon in-camera review.

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5. Briefing schedule

Motions, including the brief, are to be served nine days before a hearing; responsive briefs are due five days before a hearing unless there is personal service of the motion. MCR 2.119(C)(1)(a), (2)(a). However, the timeframe is often modified by the court. See MCR 2.119(C)(1), (2)(a) (allowing a different time period to be set by the court).

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6. Amicus briefs

Michigan courts are generous in their granting of the right to allow supporting organizations to file briefs as amicus curiae. See City of Grand Rapids v. Consumers’ Power Co., 216 Mich. 409, 415, 185 N.W. 852 (1921) (stating that the court is desirous of amicus curiae). Reporters should contact:

Michigan Press Association
827 N. Washington
Lansing, MI 48906
(517) 372-2424
michiganpress.org

Michigan Association of Broadcasters
819 N. Washington
Lansing, MI 48906
(517) 484-7444
www.michmab.com

Reporters Committee for Freedom of the Press
1156 15th St. NW, Suite 1020
Washington, D.C. 20005
(202) 795-9300
www.rcfp.org

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VI. Substantive law on contesting subpoenas

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A. Burden, standard of proof

In the usual case, if one can get the court to recognize the privilege, the party seeking the information must establish that the information is relevant, essential to the outcome of the case, and not obtainable from any other source. In re Photo Mktg. Ass’n Int’l, 120 Mich. App. at 532 (citing Riley, 612 F.2d at 716).

If the subpoena is issued under MCL 767.5a (regarding grand jury subpoenas) or

MCL 767A.6 (regarding subpoenas filed by a prosecutor) and the statutory privilege applies, the subpoena is quashed. However, under MCL 767.5a, if the grand jury proceeding inquires into a crime which provides for life imprisonment, the issuer of the subpoena must satisfy the Branzburg test: (1) the information that is sought must be essential to the purpose of the proceeding; (2) all other available sources of the information must have been exhausted; and (3) the court must conduct an analysis of the potential harm that may be caused by ordering disclosure of a confidential source’s identity. See Branzburg, 408 U.S. at 665.

Under the prosecutor’s subpoena statute, MCL 767A.6(6), the privilege applies to news gatherers unless (1) they are the subject of the inquiry; or (2) the material sought has been published to the public by media broadcast or print publication. If the prosecutor intends to enforce a subpoena against a news gatherer, they have the burden of establishing that one of the preceding exceptions is present. United States v. Burke, 9 Media L. Rep. 1211 (2d Cir. 1983).

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B. Elements

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1. Relevance of material to case at bar

The Michigan Court Rules require that the information sought for discovery be relevant to a “party’s claims or defenses and proportional to the needs of the case” before discovery will be granted. MCR 2.302(B)(1). However, the information sought need not be admissible in court to be discoverable. Id. Courts will always expect the issuer of the subpoena to demonstrate the relevance of the material to their case at hand. See NLRB v. Midland Daily News, 151 F.3d 472 (6th Cir. 1998) (requiring subpoenaing party to demonstrate a reasonable basis for seeking the information via subpoena).

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2. Material unavailable from other sources

Generally, a court will not listen to this argument unless it can determine that the party seeking information has made a reasonable effort to find the information from a different source. See McArdle v. Hunter, 7 Media L. Rep. 2294, 2295 (E.D. Mich. 1981).

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a. How exhaustive must search be?

While there has been little appellate-level case law on the extent of the thoroughness that makes a search exhaustive, courts require the party seeking information to make a complete effort to obtain it elsewhere prior to seeking a subpoena. For example, in McArdle, the court found that the party seeking disclosure must demonstrate that they have “exhausted every reasonable alternative source of information.” 7 Media L. Rep. at 2295 (emphasis added) (citing Zerilli v. Smith, 656 F.2d 705, 713 (D.C. Cir. 1981)). Courts have recognized that such a search “can be a weighty obligation,” but “assertions that certain alternatives would be ‘timeconsuming [sic], costly, and unproductive’ will not be accepted by the court.” Id. (citing Zerilli, 656 F.2d at 715).

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

There have been no Michigan appellate cases discussing this precise issue.

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c. Source is an eyewitness to a crime

There have been no appellate cases discussing this precise issue. MCL 767A.6(6), as stated above, only speaks to the situation that occurs when the subpoenaed news gatherer is the subject of the inquiry. In such cases, the news reporter’s privilege does not apply, and the court will subject the news gatherer to inquiry. Id.

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3. Balancing of interests

There is no state-level case law addressing this issue at the appellate level. However, there is some guidance within the Sixth Circuit. The court in In re Grand Jury Proceedings rejected the language of Southwell in order to “make certain that the proper balance is struck between freedom of the press and the obligation of all citizens to give relevant testimony.” 810 F.2d 580, 586 (6th Cir. 1987). This balance is achieved by weighing the following considerations:

[W]hether the grand jury’s investigation is being conducted in good faith, whether the information sought bears more than a remote and tenuous relationship to the subject of the investigation, and whether a legitimate law enforcement need will be served by forced disclosure of the confidential relationship.

Id. These considerations form a substantially less stringent test than the Southwell and Branzburg tests.­

Similarly, in In re DaimlerChrysler AG Securities Litigation, the court favored a balancing-of-the-interests test similar to that of Federal Rules of Civil Procedure 26(b) and (c). 216 F.R.D. at 403. The test considers whether:

(i) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought; or (iii) the burden or expense of the proposed discovery outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues.

Id. (citing Fed. R. Civ. P. 26). Additionally, the court considered the respondent’s status as a news gatherer along with the relevancy of the material sought to the case at hand. Id.

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4. Subpoena not overbroad or unduly burdensome

Under Michigan Court Rule 2.302(G)(3)(b)(1), the signature of one’s attorney certifies that the information sought in a subpoena is not unreasonable or unduly burdensome. If the rule is violated and the discovery request is overly broad or unduly burdensome, the court, “on the motion of a party or on its own initiative, may impose upon the person who made the certification,” an appropriate sanction. MCR 2.302(G)(4). This could include “an order to pay the amount of the reasonable expenses incurred because of the violation, including reasonable attorney fees.” Id.

Under the Federal Rules of Civil Procedure, if a party does not take reasonable steps to avoid imposing an undue burden or expense on a person subject to their subpoena, they could face sanctions. Fed. R. Civ. P. 45(d)(1). The sanctions, which could be imposed based on a party’s motion or based on the court’s own initiative, “may include lost earnings and reasonable attorney’s fees.” Id.

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5. Threat to human life

There have been no appellate cases discussing this precise issue. However, under MCL 767.5a(1), as stated above, when information is sought for an inquiry based on a crime punishable by life imprisonment, a news gatherer must disclose the “identity of an informant, any unpublished information obtained by an informant, or any unpublished matter or documentation” from that informant.

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6. Material is not cumulative

Although there have been no appellate cases discussing this precise issue, other federal courts have considered it. See Bauer v. Brown, 11 Media L. Rep. 2168 (W.D. Va. 1985) (requiring information sought in a subpoena to be noncumulative for it to proceed).

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7. Civil/criminal rules of procedure

Michigan Court Rule 2.302(G)(3)(b)(ii) states that the signature of the party or their attorney certifies that the information included in the discovery request (subpoena) is not “interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.” As referenced above, a violation of this rule could result in appropriate sanctions, including attorney’s fees for the party at fault. MCR 2.302(G)(4).

Under the Federal Rules of Civil Procedure, the sanction for violation is strikingly similar. Federal Rule of Civil Procedure 26(g)(1) requires that a party or their attorney who signs a discovery request represents that, “to the best of the person’s knowledge, information, and belief,” the request is “not interposed for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation.” In the event of a violation of the preceding rule, the court, either by motion of a party to the case or on its own volition, must impose an appropriate sanction on the signing party, which may include attorney’s fees. Fed. R. Civ. P. 26(g)(3).

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8. Other elements

There are no other elements that are apparent.

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C. Waiver or limits to testimony

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1. Is the privilege waivable?

There have been no appellate cases discussing this precise issue.

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2. Elements of waiver

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a. Disclosure of confidential source's name

MCL 767A.6(6) states that “a reporter or other person who is involved in the gathering or preparation of news for broadcast or publication is not required to disclose the identity of an informant.” Outside of the exceptions, which include the reporter being the subject of the inquiry or the information already having been disseminated to the public, this privilege seemingly applies to non-confidential sources. MCL 767A.6. Protection for confidential information is seen in In re Photo Marketing Association International, as “[r]eporters of general news are usually protected against disclosure of confidential sources.” 120 Mich. App. at 530 (citing Branzburg, 408 U.S. at 665). As stated above, in the absence of one of the statutory exceptions, a news gatherer is not required to disclose the name of their confidential sources.

In In re Grand Jury Proceedings, the U.S. Court of Appeals for the Sixth Circuit considered the “disclosure of the confidential source relationship” to be a factor in determining whether to compel disclosure of the information. 810 F.2d 580, 586 (6th Cir. 1987).

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b. Disclosure of non-confidential source's name

There is no case law regarding the divulgence of a non-confidential source’s name. However, the name of the source is most likely not discoverable. MCL 767A.6(6), while not providing specificity as to confidentiality, states that “a reporter or other person who is involved in the gathering or preparation of news for broadcast or publication is not required to disclose the identity of an informant.”

There is no case law in the Sixth Circuit discussing disclosure of non-confidential sources.

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c. Partial disclosure of information

There have been no appellate cases discussing this precise issue in Michigan or in the Sixth Circuit. While the names of informants are likely protected, the entirety of the information divulged depends on the status of the information’s confidentiality at the state level. See MCL 767A.6(6).

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d. Other elements

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3. Agreement to partially testify act as waiver?

There have been no appellate cases discussing this precise issue.

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VII. What constitutes compliance?

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A. Newspaper articles

Michigan Rule of Evidence 902(6) provides that newspaper articles are self-authenticating. Therefore, it is not necessary for a newspaper person to appear in order to authenticate newspaper reports.

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B. Broadcast materials

Not addressed.

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C. Testimony vs. affidavits

Michigan Rule of Evidence 902(6) provides that newspaper articles are self-authenticating.

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D. Non-compliance remedies

There have been no appellate cases discussing this precise issue. However, Michigan does recognize civil and criminal contempt. See MCR 2.506(E). Criminal contempt is limited to contumacious behavior in the presence of the court and requires honoring all rights of the criminal defendant. MCL 600.1701(a) (allowing for imprisonment for contemptuous behavior).

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1. Civil contempt

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a. Fines

There have been no appellate cases discussing this precise issue. Punishment for contempt may be a fine of up to $7,500 or imprisonment. MCL 600.1715(1).

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b. Jail

There have been no appellate cases discussing this precise issue in the reporter setting. In general, imprisonment for contempt of court shall not exceed 93 days. MCL 600.1715(1). However, in cases in which the imprisonment is for the failure to perform an act which is still within the power of the person to perform, jail time can exceed 93 days. MCL 600.1715(2). Criminal contempt requires abiding by all constitutional safeguards for criminal defendants. MCL 600.1715(1).

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2. Criminal contempt

There have been no appellate cases discussing this precise issue in the reporter subpoena setting.

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3. Other remedies

There have been no appellate cases discussing this precise issue. However, it is clear that courts in Michigan have been willing to impose sanctions on parties who refuse to comply with discovery demands. See Kalamazoo Oil Co. v. Boerman, 242 Mich. App. 75, 87, 618 N.W.2d 66 (2000) (allowing sanctions when a party refuses discovery). Thus, these are still issues of first impression in Michigan.

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VIII. Appealing

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A. Timing

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1. Interlocutory appeals

Interlocutory appeals are allowed under the Michigan Court Rules. See MCR 7.305(C)(3) (discussing application for interlocutory appeal). If a court has refused a motion to quash a subpoena, the recipient of the subpoena may file an interlocutory appeal. See Stavale v. Stavale, 332 Mich. App. 556, 957 N.W.2d 387 (2020) (granting interlocutory appeal of court’s refusal to quash subpoena). The appellate courts have been fairly receptive to interlocutory appeals by media organizations.

The only difference between appealing a discovery subpoena versus a trial subpoena is timing. MCR 7.205(A). Appellate courts are deferential to trial courts, which is reflected in the abuse of discretion standard of review used in reviewing trial court decisions on appeal. See Appeals & Opinions Benchbook, Mich. Jud. Institute (2d ed. 2021), https://mjieducation.mi.gov/documents/benchbooks/13-ao/file. Therefore, be prepared for swift justice. One can also file a motion for emergency appeal to get expedited treatment if necessary. MCR 7.205(f).

An interlocutory appeal is obtained by motion for leave to appeal. See MCR 7.205. Frequently, on these issues, and especially if the matter is time-sensitive, the court will issue an order granting the appeal, which contains the substantive decision on the merits. MCR 7.105(E)(3). That is to say, the court will rule on the appealable issue rather than merely accepting leave to appeal, which would trigger additional briefs due within 56 days followed by a hearing a year later. MCR 7.212(A)(1)(a)(iii).

This means that parties must put their best arguments in their brief in support of an interlocutory appeal. A party’s brief in support of the motion for leave to appeal may be the only opportunity to address the court on the merits. It therefore needs to be complete and persuasive.

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2. Expedited appeals

The Michigan Court Rules provide for an expedited appeal though the filing of a motion for immediate consideration. MCR 7.211(C)(6). If one is appealing an adverse ruling on a subpoena, expedited hearing on appeal should be sought because there is no automatic stay upon the filing of the appeal. MCR 7.108(B)(2). While the subpoenaed party can ask the trial judge for a stay (and in fact must ask the trial judge before asking the court of appeals for a stay), a judge who has refused the motion to quash a subpoena is unlikely to grant the request for a stay. See MCR 7.209(E)(2) (providing situations in which an appeal will stay).

Therefore, a motion for immediate consideration is advantageous for most interlocutory appeals of the denial of a motion to quash a subpoena. Each aspect of the appeal which the moving party believes requires immediate consideration must have its own motion and must state the facts showing “why immediate consideration is sought.” MCR 7.211(C)(6).

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B. Procedure

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1. To whom is the appeal made?

Appeals from district courts go to circuit court. See MCR 7.100 et seq. (setting forth rules for appeals to circuit courts). Appeals from circuit courts go to the court of appeals. See MCR 7.200 et seq. (setting forth rules for appeals to the court of appeals). Appeals from the court of appeals go by leave only to the Michigan Supreme Court. See MCR 7.300 et seq. (setting forth rules for appeals to the Michigan Supreme Court).

Most subpoenas are issued from the circuit court, requiring appeals to be taken to the court of appeals. See About the Court, Michigan Courts, https://courts.michigan.gov/courts/coa/aboutthecourt/pages/about.aspx. However, if the subpoena is in the district court (under $25,000 in question), then the initial appeal must go to the circuit court for the county in which the district court is located. See MCL 600.8301 (explaining district court jurisdiction).

All appeals of subpoenas are interlocutory, which means the first step is to seek leave to appeal by application to the court. See MCR 7.105 (setting forth rules for leave to appeal).

Lastly, there is a procedure to bypass intermediate courts and go directly to the Michigan Supreme Court. MCR 7.305(C)(1). Use of this procedure is a judgment call. It is time consuming and there is no guarantee that the Supreme Court will take the appeal. However, it is an available avenue if the case is clearly headed to the Supreme Court.

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2. Stays pending appeal

There is no automatic stay upon appeal for interlocutory appeals. MCR 7.108(B)(2). In order to obtain a stay pending appeal, request must first be made of the trial court. Id. If the trial court denies the request for stay, then a request for stay may be made to the court of appeals. See MCR 7.209(A). A motion for immediate consideration is needed in order to obtain the quickest relief. See MCR 7.105(F). A bond may be required for the stay, in which the party seeking a stay promises to prosecute the appeal with due diligence. See MCR 7.209; MCR 7.108.

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3. Nature of appeal

An appeal from an order denying a motion to quash is interlocutory. That is to say, the appeal is made by way of a motion for leave or permission to appeal. MCR 7.203(B). There is no appeal as of right, as the motion to quash is not a final judgment or order. See MCR 7.202(6). The motion for leave to appeal must be made within 21 days of the entry of the order. MCR 7.205(A)(1)(a).

There are no oral arguments on the motion for leave to appeal, so all argument must be placed in the brief in support of the motion for leave to appeal. MCR 7.205(E)(1). It would therefore be wise to submit the most persuasive arguments in the brief because it may be the only opportunity.

As discussed above, the courts of Michigan will often rule on the substantive issue, i.e. whether or not to quash the subpoena, in their orders granting or denying the appeal. See MCR 7.105(E)(3). Thus, a party may never get oral argument on the reasons why the subpoena should be quashed or modified. It is essential that the brief in support of the motion for leave to appeal be complete, including exhibits which exemplify the case the party wants to make to the court.

When filing a motion for leave to appeal, the portion of the transcript that “substantiates the existence of the issue, objections or lack thereof, arguments of counsel, and any comment or ruling of the trial judge” must be filed with the clerk. MCR 7.205(B)(4)(g). If the transcript is not yet available, or has not been transcribed at all, “the appellant shall file a copy of the certificate of the court reporter or recorder or a statement by the appellant’s attorney as provided in MCR 7.204(C)(2),” and must subsequently file the transcript as soon as it becomes available. MCR 7.205(B)(4).

Again, if the appellant needs to be heard on an expedited basis, there are procedures, including personal service on the issuer of the subpoena, which can get the application for stay and the motion for leave to appeal before a panel of the court of appeals immediately. MCR 7.105(F).

Michigan courts have recognized the need for speedy action in certain appellate situations. See Gillis v. Bd. of State Canvassers, 453 Mich. 881, 554 N.W.2d 9 (Table) (1996) (providing immediate consideration and leave to appeal as amicus curiae). In the subpoena setting, the court has acted promptly. See GE Money Bank v. Haddad, 492 Mich. 857, 817 N.W.2d 109 (2012) (granting immediate consideration of a motion to quash a subpoena). However, it is important to be sure that immediate consideration is necessary before a party demands it.

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4. Standard of review

Generally, the standard for review by a Michigan appellate court is abuse of discretion by the trial court. See Maldonado v. Ford Motor Co., 476 Mich. 372, 388, 719 N.W.2d 809 (2006) (adopting the abuse of discretion standard as the default standard). Since Michigan courts have not recognized a constitutional privilege for reporters, the appeal of a decision to quash a subpoena is nothing more than an interlocutory appeal from the trial court, subject to reversal only if it constitutes an abuse of discretion. Marketos, 185 Mich. App. at 181.

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5. Addressing mootness questions

Generally, Michigan courts will review a case even if technically moot, if it is capable of repetition but evading review. See Federated Publ’ns Inc. v. Lansing, 467 Mich. 98, 112, 649 N.W.2d 383 (2002), abrogated on other grounds by Herald Co. v. E. Mich. Univ. Bd. of Regents, 475 Mich. 463 (2006).

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6. Relief

As relief, the reporter should seek reversal of the trial court’s decision to not quash the subpoena in question. However, the court of appeals will fashion the relief it finds appropriate under the circumstances. MCR 7.205(E)(2). Often on the first appeal, the court of appeals will ask the trial court to reconsider in light of the factors identified by the court of appeals. If the trial court still does not make the correct decision in the eyes of the court of appeals, the court of appeals is more likely to issue a definitive ruling quashing or upholding the subpoena. However, the court of appeals does show deference to trial courts and usually tries to get the trial court to make the ultimate decision, as seen by the heightened standard of review upon appeal. See Federated Publ’ns Inc., 467 Mich. at 112, abrogated on other grounds by Herald Co., 475 Mich. at 463.

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IX. Other issues

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A. Newsroom searches

Although there have been no appellate cases discussing this precise issue, parties have often used the Federal Privacy Protection Act as a bar to newsroom searches. 42 U.S.C. 2000aa et seq.

Parties also argue that the prosecutor’s subpoena statute exemption applies to search warrants of newsrooms. See MCL 767A.2 (explaining requirements for authorization of investigative subpoenas).

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B. Separation orders

When a court attempts to restrict a reporter’s access to the courtroom because the reporter is a potential witness, parties argue that this is part of the reason that the reporter should not be called to testify. If the court insists that a reporter is going to have to testify, parties generally send another reporter to cover the court proceeding unless the testifying reporter’s testimony is very basic and innocuous. If the party cannot assign another reporter, they try to get the reporter on and off the stand as quickly as possible so she or he can return to reporting on the trial. Unfortunately, this does not always work.

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C. Third-party subpoenas

There have been no appellate cases in Michigan discussing this precise issue.

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D. The source's rights and interests

There have been no appellate cases discussing this precise issue. However, Michigan statutes protect the identity of the informant and any unpublished information obtained from the source. MCL 767.5a; MCL 767A.6(6).

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