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Michigan

Reporters Privilege Compendium

Updated by RCFP staff from an earlier edition by Laurie Michelson, Dawn Phillips Hertz, Butzel Long, Detroit, Mich.

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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Michigan recognizes a qualified privilege for journalists served with a subpoena against the disclosure of unpublished information.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 the one appellate decision, King v Photo Marketing Association International, 120 Mich App 527; 327 NW2d 515, 517-518 (1982) the Court stated that a reporter could not be compelled to relate 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 addition, Michigan statutes provide protection to reporters from subpoenas issued in Grand Jury proceedings MCL 767.5a and from subpoenas issued by Prosecutors under MCL § 767A.6 unless they are the object of the investigation. 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, to wit, 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. The Michigan statute which allows prosecutors to apply for subpoenas from court's to act as a one person grand jury, contains a similar limitation.

One other case on photographs required the newspaper to produce photographs, published and unpublished of a fire scene. 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 photos. Under the circumstances the newspaper was unable to file an affidavit with regard to the burden of providing photos since it had clearly done so for many years before.

Trial courts, however, have been liberal in their willingness to protect reporters from burdensome requests for information, whether testimony or notes.

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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 MCL 767.5a and the other is with respect to subpoenas issued by Prosecutors under MCL 767A.6.

The Grand Jury statute 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." MCL 767.5a.

Prosecutors may apply to a Circuit Court Judge for a subpoena in order to compel testimony of witnesses to investigations of criminal conduct. That statute likewise provides a privilege to reporters. It 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." MCL 767A.6(6).

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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 the case of Marketos v American Employers Insurance Company, 185 Mich App 179; 460 NW2d 272 (1990), the Court of Appeals rejected a reporter's privilege based upon the First Amendment. However, the case has limited application because of the facts. The request was for solely for unpublished photographs and the newspaper had until recently made such photographs available upon request for a modest fee. Furthermore, the newspaper did not present an affidavit of the burdens a subpoena places on photographers or the newspaper.

Michigan Courts have declined on several occasions to recognize a constitutional basis for objecting to subpoenas on reporters. However, the net effect of most court decisions on subpoenas follows the Branzburg formula: the subpoena must seek highly relevant information and there must not be another source. However, more deference is given to confidential sources and source material.

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D. Other sources

Michigan has a Court Rule similar to the federal rule allowing objections to burdensome subpoenas. MCR 2.301.

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III. Scope of protection

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. It is not a strong privilege since it is created by case law except for the privilege created in grand jury proceedings and from prosecutor's investigatory subpoenas where the privilege is statutory and is nearly absolute.

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B. Absolute or qualified privilege

As interpreted in Michigan law there is a qualified privilege for unpublished information. One case has required in addition that the material be confidential. However, the privilege given to journalists to resist grand jury and prosecutor's investigatory subpoenas is nearly absolute.

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C. Type of case

1. Civil

In civil cases the Court usually evaluates the relative burden 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, 185 Mich App 179; 460 NW2d 272 (1990), the Michigan Courts required the newspaper to produce photographs, published and unpublished, of a suspicious fire to an insurance company. However, the case holding is limited because the newspaper had just ended its policy of selling photographs for $5.00. 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 let you have copies. It used to be a friendly newspaper that tried to help out the rest of the community.

Counsel: 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.

Despite the negative holding of the Court of Appeals in Marketos, Michigan courts have continued to provide protection to reporters and photographers. The Michigan legislature also has recognized a reporters' privilege to be free from subpoenas in the Grand Jury setting which is arguably an arena where the government's interest in reporter knowledge is high and in proceedings by prosecutors to obtain investigatory subpoenas before charges are issued.

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2. Criminal

In the criminal setting Court's are very sensitive to the Defendant's rights under the Sixth Amendment to a fair trial. On the other hand most judges require a high degree of materiality before burdening the press.

In addition, the Michigan Courts have held that in People v. Pastor (In re March 1999 Riots) (2000) 463 Mich 378, 617 NW2d 310, that the Michigan Court Rule on subpoenas, MCR 2.506, is not applicable in criminal cases. Criminal discovery is governed by a different Court rule, 6.201 that does not provide for subpoenas on reporters and prohibits discovery of information protected by privilege. 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. The Prosecutor first tried to subpoena the unpublished photographs under the general court rule in its prosecution of Mr. Pastor. 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.

The prosecutor then sought an investigatory subpoena under MCL 767A.1. But that statute has a specific exclusion for the media as discussed above. The Prosecutor nonetheless sought to avoid the privilege. 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. 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.

That said, when a subpoena is received 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, (see above) which provides fairly strong protection against grand jury subpoenas. MCL 767.5a. The prohibition against reporter subpoenas applies to the identity of and the unpublished information given by informants. There is no requirement that the informant have a confidential relationship with the reporter.

However, the statute does provide 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 which is sought is essential to the purpose of the proceeding and that other available sources of the information have been exhausted.

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. In response to complaints by law enforcement that witnesses in many investigations especially in drug related investigations, were uncooperative, the legislature enacted a law allowing prosecutors to apply for special subpoenas from judges to require witnesses to appear before the prosecutor before any charges were filed to answer questions propounded by the prosecutor. Witnesses were refusing to talk voluntarily with police in many drug related investigations.

The prosecutor's subpoena is in essence a one person grand jury. Reporters are immune from such subpoenas unless they are the target of the investigation or the information has been published.

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. The Supreme Court upheld the Journal's statutory right to be exempt from the Prosecutor's subpoena.

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D. Information and/or identity of source

As noted above, the statutory privileges prohibiting grand juries and prosecutor subpoenas protect the identity of and information supplied by the source without respect to confidentiality. However, in civil and criminal matters in the court confidentiality of the information and the informant's identity is important. Court's are less likely to prohibit subpoenas for non-confidential information.

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E. Confidential and/or nonconfidential information

As noted above, the statutory privileges prohibiting grand juries and prosecutor subpoenas protect the identity of and information supplied by the source without respect to confidentiality. However, in civil and criminal matters in the court confidentiality of the information and the informant's identity is important. Court's are less likely to prohibit subpoenas for non-confidential information.

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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. Thus, subpoenas for published information are difficult to quash.

However, Michigan has a rule of evidence which makes news paper articles self authenticating. That means that 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.

In civil and criminal trials, however, it is difficult to resist a subpoena based on the reporter's privilege if the information has been published. Generally we 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 reporter's stories based on third party observations. However, caution should be exercised. If the reporter saw the fire as a reporter, there may be a basis for asserting the privilege. However, if the reporter lived next door to the fire and saw because he couldn't help but see the fire next door, assertion of the privilege would be difficult.

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H. Media as a party

There are no reported cases distinguishing application of the privilege in case in which the media is a party and 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 of the libel defendant Southern Poverty Law Center as to its confidential informant.

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IV. Who is covered

Michigan Courts have not made distinctions on the basis of the news gatherer's status. The major appellate decision 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. Although not a traditional news media, 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. King v Photo Marketing Association International, 120 Mich App 527; 327 NW2d 515, 517-518 (1982)

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A. Statutory and case law definitions

1. Traditional news gatherers

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.

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b. Editor

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.

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c. News

Neither case law nor the statutes define "news".

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d. Photo journalist

The statutes granting a privilege do not contain any definitions of reporter, editor, news, photo journalist or media. Nor does case law distinguish amongst members of the media.

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e. News organization/medium

The statutes granting a privilege do not contain any definitions of reporter, editor, news, photo journalist or media.

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2. Others, including non-traditional news gatherers

There are no cases on non-traditional news gatherers, although Court's have made gratuitous statements that in the particular instance before the Court "there is no question" that the petitioner was gathering the news.

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B. Whose privilege is it?

There are no appellate decisions addressing this issue.

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V. Procedures for issuing and contesting subpoenas

A. What subpoena server must do

1. Service of subpoena, time

Under Michigan Rules of Court 2.506 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. In order to compel attendance personal service of the subpoena must be obtained. However, many lawyers mail or fax subpoenas with or without service fees. Such subpoenas are not sufficient to compel attendance.

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2. Deposit of security

In civil cases, service of the subpoena on a non-party must be accompanied by one days witness fee and mileage to the site of the taking of testimony or document production.

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/judge or by an attorney in the case. 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 person over the age of 18 or by mail. Fees must be delivered with the subpoena in civil cases, not in criminal cases. The fees must be one day’s attendance plus mileage.

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B. How to Quash

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 the purpose of the subpoena. It will aid you in defending against the subpoena. For example, if they just want a copy of the article for authentication purposes, you can provide that information and avoid the subpoena. Michigan Rules of Evidence 902(6) makes newspapers self authenticating. You can also suggest other avenues for investigation that do not involve the reporter.

The most annoying subpoenas are those seeking "all articles published about the controversy that is the subject of the lawsuit." Most smaller newspapers have no method of accomplishing that 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) a person served with a subpoena may appear in person or by writing explain why the person should not be compelled to comply with the subpoena. Alternatively a motion to quash can be filed. It is recommended that if the subpoena is for a court hearing, that a letter of explanation or motion to quash precede the hearing.

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3. File a motion to quash

a. Which court?

A motion to quash subpoena is filed in the Court from which the subpoena was issued.

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b. Motion to compel

Given the option to send in a written statement explaining why you should not have to appear, it is highly advisable to respond to the subpoena rather than waiting for a motion to compel, especially if the subpoena seeks your appearance at a court hearing. There is no requirement that you file a motion to quash first, but judges seem to respond better if you 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. Usually you 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 you and the court in the predicament of trying to handle a jury pool waiting for selection and finding time to hear your motion to quash. You have no choice at that point 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 your 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 they 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

a. Necessity

There is no statutory or other requirement for in camera review. 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. Even the attorney representing the news organization 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 9 days before hearing; responsive briefs are due 5 days before a hearing unless there is personal service of the motion. However, that is often modified by the Court.

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6. Amicus briefs

Michigan courts are generous in their grant of the right to allow supporting organization to file briefs 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

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VI. Substantive law on contesting subpoenas

A. Burden, standard of proof

In the usual case, if one can get the Court to recognize the privilege, then the burden is on the issuer to establish that the information is relevant, essential to the case and not obtainable from any other source. However, the reporter may have to demonstrate confidentiality to the extent that it was a factor.

If the subpoena is issued under the Grand Jury statute or the Prosecutor's statute, if the privilege applies, the subpoena is quashed. However, if the grand jury proceeding is investigating a crime which provides for life imprisonment, then the issuer of the subpoena must meet the Branzburg test: the information which is sought must be essential to the purpose of the proceeding and other available sources of the information have been exhausted.

Under the Prosecutor's subpoena statute MCL 767A.6, the privilege applies to news gatherers unless they are the target of the investigation or the material sought has been published. The Prosecutor has the burden of showing one or the other if she wants to enforce the subpoena against a news gatherer.

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B. Elements

1. Relevance of material to case at bar

Materiality is required under the Court Rules. Court's will always expect the issuer of the subpoena to demonstrate the relevance of the material sought.

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2. Material unavailable from other sources

Generally Court's will listen to this argument. There have not been that many reported appellate decisions in this area of the law. So it is difficult to answer these questions with precision.

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a. How exhaustive must search be?

There have been no appellate cases discussing this precise issue. Strategically we try to get the trial court to tell issuers to take their other depositions first and grant the motion to quash the subpoena without prejudice should upon the conclusion of discovery the issuer believe that they need the evidence from the media.

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

There have been no 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.

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3. Balancing of interests

There have been no appellate cases discussing this precise issue.

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4. Subpoena not overbroad or unduly burdensome

Under Michigan Court Rule 2.302 Courts may issue protective orders upon motion and may issue any order that "justice requires to protect from annoyance, embarrassment, oppression, or undue burden or expense…"

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5. Threat to human life

There have been no appellate cases discussing this precise issue.

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6. Material is not cumulative

Although there have been no appellate cases discussing this precise issue, it is obviously an issue which the media should raise.

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7. Civil/criminal rules of procedure

Issuance of a subpoena requires that the attorney sign the subpoena. MCR 2.506. Execution of a document by an attorney subjects the attorney to sanctions upon proof that the document was frivolous or interposed for improper purposes. MCR 2.114.

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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

1. Is the privilege waivable?

There have been no appellate cases discussing this precise issue.

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2. Elements of waiver

a. Disclosure of confidential source's name

There have been no appellate cases discussing this precise issue.

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b. Disclosure of non-confidential source's name

There have been no appellate cases discussing this precise issue.

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c. Partial disclosure of information

There have been no appellate cases discussing this precise issue.

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d. Other elements

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?

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. Affidavits may not be used in lieu of testimony when the subpoena is upheld.

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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. Criminal contempt is limited to contumacious behavior in the presence of the Court and requires honoring all rights of the criminal defendant.

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1. Civil contempt

a. Fines

There have been no appellate cases discussing this precise issue. There is no cap on fines for contumacious behavior.

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b. Jail

There have been no appellate cases discussing this precise issue in the reporter setting. There are no limits on jail time although a finding of criminal contempt would be required in order to impose jail time. Criminal contempt requires abiding by all constitutional safeguards for criminal defendants.

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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 discovery. Thus, these are still issues of first impression in Michigan.

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VIII. Appealing

A. Timing

1. Interlocutory appeals

Interlocutory appeals are allowed under Michigan Court Rules. If a court refused to quash a subpoena, the recipient of the subpoena may file an interlocutory appeal. The Appellate Courts have been fairly receptive to interlocutory appeals by media organizations.

There is no difference between appealing a discovery subpoena versus a trial subpoena except for the timing issue. Courts of Appeal do not like to interfere with trial court dockets. Therefore be prepared for swift justice. One can also file a motion for emergency appeal to get expedited treatment.

An interlocutory appeal is obtained by motion for leave to appeal. Frequently, on these kinds of 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. 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 in three to six months followed by a hearing a year later.

This means that you have to put your best arguments in your brief in support of your interlocutory appeal. Your brief in support of your motion for leave to appeal may be your 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 rules provide for an expedited appeal though the filing of a motion for immediate consideration. 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. You can ask the trial judge for a stay (and in fact you must ask the trial judge before you may ask the Court of Appeals for a stay) but a judge who has refused your motion to quash a subpoena is probably not going to be sympathetic to your request for a stay.

Therefore, a motion for immediate consideration is in order for most interlocutory appeals on the denial of a motion to quash a subpoena. Each aspect of the appeal requires its own motion for immediate consideration.

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B. Procedure

1. To whom is the appeal made?

Appeals from District Courts go to Circuit Court. Appeals from Circuit Courts go to the Court of Appeals. Appeals from the Court of Appeals go by leave only to the Michigan Supreme Court.

Most subpoenas are issued from the Circuit Court requiring appeals to be taken to the Court of Appeals. However, if the subpoena is in the District Court (Under $25,000) then the initial appeal must go to the Circuit Court for the County in which the District Court is located.

All appeals of subpoenas are interlocutory which means that the first step is to seek leave to appeal.

Lastly there is a procedure to by pass intermediate courts and go directly to the Supreme Court. This is a judgment call as to when to use this procedure. It is time consuming and there is no guarantee that the Supreme Court will take such an 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. In order to obtain a stay pending appeal, request must first be made of the trial court. If the trial court denies the request for stay, then a request for stay may be made to the Court of Appeals. A motion for immediate consideration is needed if you want the quickest relief. A bond may be required for the stay i.e. a bond that you promises to prosecute the appeal with due diligence.

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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. There is no appeal of right. The motion for leave to appeal must be made within 21 days of the entry of the order.

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. Submit your most persuasive arguments in your brief because it may be your only opportunity.

As discussed above, the Courts of Michigan often will rule on the substantive issue i.e. whether or not to quash the subpoena, in its order granting or denying the appeal. Thus, you 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.

There is no transcript requirement on a motion for leave to appeal. However, you may want to order a transcript to reduce the time it takes for the Court to rule if the Court determines that it would like to see the transcript.

Again if you need to be heard on an expedited basis there are procedures including personal service on the issuer of the subpoena which can get your application for stay and your motion for leave to appeal before a panel of the Court of Appeals immediately.

Michigan Courts have recognized the need for speedy action in certain appellate situations. In the subpoena setting, the Court has acted promptly. However, don't cry wolf! That is to say, be sure that immediate consideration is necessary. It usually is, but be sure you need special attention before you demand it.

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4. Standard of review

Generally the standard for review is abuse of discretion by the trial court. There is no de novo review of a decision on quashing a subpoena. Since the Michigan courts have not recognized a constitutional privilege for reporters, the decision to quash is nothing more than an interlocutory decision of the trial court subject to reversal only if it constitutes an abuse of discretion.

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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.

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6. Relief

The reporter should seek reversal of the trial court. However, the Court of Appeals will fashion the relief it finds appropriate under the circumstances. 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 doesn't "get it right", 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.

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IX. Other issues

A. Newsroom searches

Although there have been no appellate cases discussing this precise issue, we have often used the Federal Privacy Protection Act (42 USC 2000aa) as a bar to newsroom searches.

We also argue that the Prosecutor's subpoena statute exemption applies to search warrants of newsrooms.

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B. Separation orders

When a court attempts to restrict a reporter's access to the court room as a potential witness, we argue that this is part of the reason that the reporter should not be called. If the Court insists that a reporter is going to have to testify, we generally send another reporter to cover the court proceeding unless the testifying reporter's testimony is very basic and innocuous. If we can't assign another reporter, then we 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 doesn't always work.

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C. Third-party subpoenas

There have been no appellate cases 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.

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