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Missouri

Reporter's Privilege Compendium

Jean Maneke, Esq.
The Maneke Law Group, L.C.
2345 Grand Blvd., Ste. 1600
Kansas City, MO 64108
(816) 753-9000

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I. Introduction: History & Background

Missouri continues to be one of the minority of states that has not adopted a shield statute for reporters. The law in this state is murky.

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II. Authority for and source of the right

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A. Shield law statute

Missouri has no shield law statute for reporters.

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B. State constitutional provision

Article I, Section 8, of the Missouri Constitution, in similar fashion to the First Amendment to the United States Constitution, provides "That no law shall be passed impairing the freedom of speech, no matter by what means communicated: that every person shall be free to say, write or publish, or otherwise communicate whatever he will on any subject, being responsible for all abuses of that liberty; and that in all suits and prosecutions for libel or slander the truth thereof may be given in evidence; and in suits and prosecutions for libel the jury, under the direction of the court, shall determine the law and the facts."

This provision provides a basis for beginning the argument in Missouri that a reporter's privilege should attach to the identity of sources used in the preparation of stories. However, no Missouri case has discussed in detail the application of this constitutional provision to the issue, but simply noted its existence.

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C. Federal constitutional provision

Similarly, case law in the state has noted that the First Amendment to the United States Constitution provides a basis for beginning the argument that a reporter's privilege should attach to the identity of sources used in the preparation of stories. But no state court has directly held this based upon Federal constitutional provisions. Indeed, there are only two cases in the state of Missouri in which this issue has been addressed: CBS, Inc., v. Campbell, 645 S.W.2d 30 (Mo. Ct. App. 1982); and State of Mo. ex rel Classic III, Inc., v. Ely, 954 S.W.2d 650 (Mo. Ct. App. 1997), and both have relied heavily on federal case precedent in making what determinations have been made regarding this issue for reporters in the State of Missouri. In fact, the Ely case cited above contains probably the most thorough discussion of this issue in the State of Missouri to date.

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D. Other sources

There are no court rules, state bar guidelines or administrative procedures addressing this issue.

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III. Scope of protection

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A. Generally

Missouri case law does provide a basis to begin the argument that a privilege does attach to the reporter in regard to disclosure of sources under certain circumstances.

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B. Absolute or qualified privilege

The case law in Missouri would seem to support that this privilege is qualified, based upon the four-pronged test set out in Classics III, as outlined below.

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C. Type of case

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1. Civil

The Court in CBS, Inc., v. Campbell, 645 S.W.2d 30, 33 (Mo. Ct. App. 1982), suggests that it believes disclosure in a civil trial could result in potential harm to a reporter in the performance of his or her duties. And in State of Mo. ex rel Classic III, Inc., v. Ely, 954 S.W.2d 650, 655 (Mo. Ct. App. 1997), Missouri adopted the four-part balancing test set out in many federal cases, focusing on the following four elements: 1) whether the movant has exhausted alternative sources of the information; 2) the importance of protecting confidentiality in the circumstances of the case; 3) whether the information sought is crucial to plaintiff's case; and 4) whether plaintiff has made a prima facie case of defamation. These facts are then balanced in determining whether to apply the privilege to the particular information or identity sought. But the court further noted that the four-part test will only apply if the journalist invokes a reporter's shield privilege based upon a promise of confidentiality to his or her source.  The court in Classics III based its decision, in part, on the holding of the 8th Circuit Court of Appeals in Cervantes v. Time, 454 F.2d 986 (8th Cir. 1972).  Classic III, Inc., 954 S.W.2d at 654.

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2. Criminal

The Court in CBS, 645 S.W.2d at 33, suggests that it believes disclosure in a criminal trial could result in potential harm to a reporter in the performance of his or her duties.

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3. Grand jury

The Court in CBS, 645 S.W.2d at 33, indicates that it believes the secrecy of grand jury proceedings in the State of Missouri would render disclosure in that setting less harmful than if disclosure were in conjunction with an ordinary civil or criminal trial. This case (following the Branzburg v. Hayes, 408 U.S. 665 (1972), analysis) held that there was no qualified privilege in such proceedings when there was no claim that the information was confidential or that the grand jury investigation was a sham undertaken to obtain the subpoenaed information. CBS, 645 S.W.2d at 33.

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D. Information and/or identity of source

The court in Classics III, 954 S.W.2d at 655, noted that the claim of privilege generally is strongest when the information sought is the names of persons who have given information in confidence to the reporter.

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E. Confidential and/or nonconfidential information

The court in Classics III, 954 S.W.2d at 654, held that a reporter's shield privilege applies in civil cases to protect the reporter from being forced to reveal the identity of and confidential communications made by confidential sources where confidentiality was promised, even if the material was not used in the story. The court further engages in a detailed analysis at 658 as to whether it is critical that the source's material be used in the story for the privilege to attach and concludes that this is not a valid test, inasmuch as a reporter may give a promise of confidentiality to a source after the story has been published without knowing at that time if a second article will follow.

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F. Published and/or non-published material

As stated above in the Classics III case, the privilege applies to non-published material as well as published material.

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G. Reporter's personal observations

While the Classics III and CBS cases cited above are the only state appellate cases on this subject, there is a federal district court case, Continental Cablevision, Inc. v. Storer Broad. Co., 583 F. Supp. 427 (E.D. Mo. 1984), which provides a more detailed and instructive analysis of the privilege and which may be more helpful in arguing such motions.  That decision includes strong language noting the importance of First Amendment interests in making a decision as to whether a reporter should be subject to a subpoena.

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H. Media as a party

There is no statutory or case law addressing this issue.

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I. Defamation actions

There is language in Classics III, 954 S.W.2d at 655, suggesting that the claim of a right to discovery is strongest when the case involves an alleged libel by the reporter. But, the court noted that this factor was not, in itself, dispositive.

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IV. Who is covered

Because Missouri has no "shield law" statute, the only discussion of quashing subpoenas in the context of non-reporters in cases in the state have been in terms of general discovery issues, which are not relevant to this discussion, and to issues related to confidential communications in the context of an attorney-client relationship or a doctor-client relationship, none of which are covered by this author in this outline.

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A. Statutory and case law definitions

There is no statutory or case law addressing this issue.

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1. Traditional news gatherers

There is no statutory or case law addressing this issue.

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a. Reporter

There is no statutory or case law addressing this issue.

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b. Editor

There is no statutory or case law addressing this issue.

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c. News

There is no statutory or case law addressing this issue.

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d. Photo journalist

There is no statutory or case law addressing this issue.

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e. News organization/medium

There is no statutory or case law addressing this issue.

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2. Others, including non-traditional news gatherers

There is no statutory or case law addressing this issue.

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B. Whose privilege is it?

There is no statutory or case law addressing this issue.

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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

Missouri law sets out the requirements for service of subpoenas in Section 536.077, R.S.Mo. That statute does not set out a minimum amount of time before the deposition, and the only discussion of an "untimely" notice was in the context of a subpoena issued in the course of a hearing. The statute does set out certain other requirements that must be met at certain times and in certain circumstances.

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2. Deposit of security

There is no statutory or case law addressing this issue.

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3. Filing of affidavit

There is no statutory or case law addressing this issue.

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4. Judicial approval

Missouri rules of civil procedure do not require judicial approval in any circumstance before a subpoena is issued.

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5. Service of police or other administrative subpoenas

There is no statutory or case law addressing this issue.

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B. How to Quash

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1. Contact other party first

While Missouri Court Rules do not require the attorney for the reporter to contact the other party before filing a motion to quash, general practice has suggested to this attorney that it is always a good idea to make contact and attempt to determine what is being sought. Often there are ways to work around the issue that generated the subpoena that will satisfy the party serving the discovery request while protecting the reporter from having to engage in a court battle to quash the subpoena, such as the providing of an affidavit (i.e., a business records affidavit).

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2. Filing an objection or a notice of intent

The formal procedure in Missouri is for the reporter to attend the deposition and to refuse to testify, raising the First Amendment and Missouri constitutional privilege. The party serving the subpoena then must file a motion to compel with the courts and a hearing is heard on the merits, at which time briefs may be filed by the parties on the issues. Alternatively, and sometimes a way to move the procedure more quickly, is for the reporter's attorney to file a motion to quash, which can allow the issues to be addressed by the court more quickly. Another advantage to this process is it allows counsel to remind the Court of the important issues at stake here at a time prior to the deposition occurring.   If the Court chooses to have the parties proceed with the deposition due to uncertainty as to whether any privilege should apply, then counsel for the reporter has a second opportunity to argue the same issues before the Court once the questions have been asked and proper objections made on the record for further consideration (i.e., “two bites at the apple”).

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3. File a motion to quash

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a. Which court?

The proper forum in Missouri for the motions is the court in which the underlying case is being heard.

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b. Motion to compel

Technically, the proper response to the subpoena is for the reporter to assert the privilege and the motion to compel to be filed. However, this author has seen both methods used in the state without objection by the courts.

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c. Timing

The motion to quash may be filed at any time after the subpoena is served. A motion to compel must be filed after the privilege is asserted in the deposition, but is timely at any time until pending motions are terminated in the underlying case.

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d. Language

No special requirements.

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e. Additional material

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4. In camera review

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a. Necessity

While Missouri cases have not spoken specifically on this issue, they have cited with approval the various federal cases that suggest this is important.

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The filing of a motion to compel or a motion to quash stays the underlying subpoena until it can be ruled upon by the court, including any future appeals of that underlying court ruling.

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c. Consequences of refusing

If a reporter refuses any order of a court in Missouri, whether for in-camera review or for any other matter, he or she may be held in contempt of court and the penalties could include a fine or imprisonment or any combination of the two.

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5. Briefing schedule

Any motion filed in a case in Missouri should be set for hearing. This is done by calling the judge's clerk and asking when the judge would be available to hear the motion. The attorney setting the hearing then is responsible for preparing the notice and mailing copies to all interested parties.

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6. Amicus briefs

Generally, courts in Missouri do not look with favor upon amicus briefs at the lower-court (circuit court) level. However, it is frequently the practice that amicus briefs are accepted by the courts of appeal and certainly they are often accepted by the state Supreme Court. The Missouri Press Association is a frequent provider of amicus briefs at those levels and is always interested in hearing about cases that involve these issues. The association is located at 802 Locust, Columbia, Mo., and can be reached at 573-449-4167. The author of this section is counsel for the association.

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VI. Substantive law on contesting subpoenas

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A. Burden, standard of proof

In Missouri, in a civil case context, the court in Classics III seems to indicate that if a reporter raises the privilege, the subpoenaing party must meet a standard of proof as set out below.

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B. Elements

Missouri uses the four-part test cited in Classics III, 954 S.W.2d 650, in weighing the privilege. The elements include: 1) whether the movant has exhausted alternative sources of the information; 2) the importance of protecting confidentiality in the circumstances of the case; 3) whether the information sought is crucial to plaintiff's case; and 4) whether plaintiff has made a prima facie case of defamation. These facts are then balanced in determining whether to apply the privilege to the particular information or identity sought.

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1. Relevance of material to case at bar

The court in Classics III, 954 S.W.2d at 657, points out that the test of relevancy must go further than the standard for discovery set out in the Missouri Supreme Court Rules, which states that the evidence discovered must be relevant or reasonably likely to lead to the discovery of admissible evidence. That same case cites as persuasive the tests set out in Cervantes v. Time, 464 F.2d 986 (8th Cir., 1972), wherein the court held that the identity of sources should be revealed only if the movant shows concrete evidence that the source will lead to persuasive evidence on a key issue.

And, further, in its analysis of the four-part test, the court in Classics III, 954 S.W.2d at 659, required that a test be made of the strength of the movant's case for libel prior to requiring disclosure.

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2. Material unavailable from other sources

The court in Classics III, 954 S.W.2d 650, cites numerous federal circuit cases in its analysis of whether the movant can obtain the information from other sources. It notes that there has been no showing of what alternative sources were inquired of regarding the information sought. Ultimately, the court concluded in Classics III that similar evidence could be obtained from non-source individuals and found that the movants had not been their burden of proof on this element.

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a. How exhaustive must search be?

There is no statutory or case law addressing this issue.

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

While this issue has not been specifically addressed in case law, a reference in Classics III, 954 S.W.2d at 656 notes that the court found important in its analysis of the elements that the subpoenaing party could likely obtain the same or similar evidence from other potential witnesses.

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c. Source is an eyewitness to a crime

There is no statutory or case law addressing this issue.

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3. Balancing of interests

Missouri uses the four-part test cited in Classics III, 954 S.W.2d 650, in weighing the privilege. The elements include: 1) whether the movant has exhausted alternative sources of the information; 2) the importance of protecting confidentiality in the circumstances of the case; 3) whether the information sought is crucial to plaintiff's case; and 4) whether plaintiff has made a prima facie case of defamation. These facts are then balanced in determining whether to apply the privilege to the particular information or identity sought.

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4. Subpoena not overbroad or unduly burdensome

Nothing in Missouri case law or court rules speaks specifically to this issue, other than the fact that it is general practice in Missouri courts for the judge to make a decision upon the narrowest grounds possible, and therefore it would be expected that the court would rule so as to provide guidance on the breadth that the inquiry could take under the subpoena.

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5. Threat to human life

There is no statutory or case law addressing this issue.

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6. Material is not cumulative

There is no statutory or case law addressing this issue.

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7. Civil/criminal rules of procedure

There is no statutory or case law addressing this issue. In general, all subpoenas are treated alike, with the exception of the notation above in CBS, 645 S.W.2d at 33, that there was no evidence that the grand jury actions constituted impermissible harassment.

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8. Other elements

The court also is required, pursuant to the test in Classics III, 954 S.W.2d 650, to weigh the importance of protecting confidentiality to the source. This case suggests there must be an evaluation if the claimed need for confidentiality is real or whether the reporter regularly offers confidentiality to sources on a regular basis to prevent discovery in all cases.  Id. at 656.

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C. Waiver or limits to testimony

There is no statutory or case law addressing this issue.

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1. Is the privilege waivable?

There is no statutory or case law addressing this issue.

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2. Elements of waiver

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a. Disclosure of confidential source's name

There is no statutory or case law addressing this issue.

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b. Disclosure of non-confidential source's name

There is no statutory or case law addressing this issue.

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c. Partial disclosure of information

There is no statutory or case law addressing this issue.

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d. Other elements

There is no statutory or case law addressing this issue.

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3. Agreement to partially testify act as waiver?

There is no statutory or case law addressing this issue.

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VII. What constitutes compliance?

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A. Newspaper articles

The general practice in the state is for a "custodian of records" to testify if needed in court to authenticate any business record. This may be done by affidavit rather than by appearance of a person pursuant to R.S. Mo. Section 490.692.  If a subpoena is served that relates to such matters, the counsel for the media often can simply facilitate the production of such an affidavit to prevent the need for a witness to testify in court.  Often it is important to distinguish a "custodian of records" for the material as someone separate from the reporter/photographer in order to limit the information available through a deposition, if one is required (ie: the custodian of records is likely to know far less about the article than the reporter who wrote it, but that reporter is not the "custodian of records" for purposes of authenticating the publication of the article in the paper).

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B. Broadcast materials

A similar affidavit could seemingly serve to authenticate a true and accurate copy of a video as aired, if such were the only purpose of a subpoena.

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C. Testimony vs. affidavits

It is always preferable to simply have a “custodian of records” respond via affidavit if the issue is whether a story ran on a certain date.  Similarly, it would be preferable to have a reporter testify via affidavit that the quotes in a story were “true and accurate” quotes of the persons he or she attributes them to.  Testimony is never a preferred method of compliance to a subpoena absent a judge’s order.

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D. Non-compliance remedies

As stated above, if a reporter fails to honor a valid, upheld subpoena, a court may issue sanctions for contempt of court. Fortunately for reporters in the state, no examples of contempt citations have been entered, so far as it is known by this author.

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1. Civil contempt

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a. Fines

There is no statutory or case law addressing this issue, and no known instances on the state level.

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b. Jail

There is no statutory or case law addressing this issue, and no known instances on the state level.

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2. Criminal contempt

There is no statutory or case law addressing this issue, and no known instances on the state level.

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3. Other remedies

There is no statutory or case law addressing this issue, and no known instances on the state level.

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VIII. Appealing

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A. Timing

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1. Interlocutory appeals

Appeals of a denial of a motion to quash (or an upholding of the movant's motion to compel) must be made by a writ of prohibition to the appropriate appellate court, There is no time frame within the Supreme Court Rules for the filing of the writ, but the general practice in the state is that a writ is filed very shortly after the lower-court ruling in order to preserve the stay pending the appellate process.

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2. Expedited appeals

The rules for the time of the writ process is set out in Missouri Supreme Court Rule 84.22, et seq. The entire process moves fairly quickly, and a ruling is issued by the Court in an expedited matter.

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B. Procedure

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1. To whom is the appeal made?

The initial appeal from the circuit court order in Missouri goes to the Court of Appeals for the district in the state in which the circuit court sits. The party unsatisfied by the ruling by the Court of Appeals may then seek review through the filing of a Writ before the Missouri Supreme Court.

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2. Stays pending appeal

While there is no specific provision in the rules regarding a stay pending appeal, the general practice of counsel in the state is that such matters are stayed informally while the appeal proceeds. And the appellate court may itself issue a stay pending resolution of the matter by application of the appealing party or by its own motion.

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3. Nature of appeal

See information set out above regarding filing writs of appeal.

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4. Standard of review

Missouri appellate courts will not issue a writ in such matters unless the damage to the party against whom discovery is sought is both severe and irreparable if the privileged material is produced and this damage cannot be repaired on appeal.

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5. Addressing mootness questions

There is no statutory or case law addressing this issue, and no known instances on the state level. However, as a general statement, Missouri judges tend to choose to avoid continuing a matter when it is moot, in order to expedite their dockets.

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6. Relief

The general procedure is to seek relief through a writ, because once the testimony is given pursuant to a subpoena, any attempt to remedy the matter at appeal will be too late and the damage will have been done. In addition, often the subpoena is of a reporter who is not a party to the underlying action and therefore the reporter has no standing to file any appeal.

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IX. Other issues

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A. Newsroom searches

Since enactment of the federal Privacy Protection Act (42 U.S.C. 2000aa), there have been no instances where law enforcement has attempted to search any newsroom in the state. No similar provisions exist under state law in Missouri.

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B. Separation orders

There is no statutory or case law addressing this issue. However, Missouri has an unwritten "rule" that allows attorneys to clear the courtroom of any person who is a prospective witness prior to the start of a trial, which is general invoked by all attorneys practicing in the state as a matter of course. It would be highly unlikely for a reporter to be summoned to testify while covering a case unless the factual circumstances were highly unusual.

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C. Third-party subpoenas

There is no statutory or case law addressing this issue other than that set out above.

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D. The source's rights and interests

There is no statutory or case law addressing this issue, and no known instances on the state level.

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