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Nebraska

Reporters Privilege Compendium


Author

Shawn D. Renner
Cline, Williams, Wright, Johnson & Oldfather, L.L.P.
1900 U.S. Bank Building
233 South 13th Street
Lincoln NE 68508
Phone: (402) 474 - 6900
Fax: (402) 474 - 5393

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I. Introduction: History & Background

Since the 1973 enactment of the "Free Flow of Information Act," Nebraska has had one of the broader, more absolute shield laws in the nation. Nebraska's shield law has generally been effective in limiting the number of subpoenas issued to reporters and, when such subpoenas have issued, has worked well at the trial court level to impose meaningful limits on the scope of testimony which can be compelled from reporters. The State's appellate courts have not addressed or dealt with shield law issues.

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II. Authority for and source of the right

Shield law protection in Nebraska derives from the statutes. The Nebraska courts have not recognized any form of reporter's privilege under the State Constitution. No reported state appellate decisions have addressed either a First Amendment privilege or the Branzburg standard.

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A. Shield law statute

Nebraska's shield law, Neb. Rev. Stat. §§ 20-144 through 147 (Reissue 2012), provides:

(d) FREE FLOW OF INFORMATION ACT

20-144. Finding by Legislature. The Legislature finds:

(1) That the policy of the State of Nebraska is to insure the free flow of news and other information to the public, and that those who gather, write, or edit information for the public or disseminate information to the public may perform these vital functions only in a free and unfettered atmosphere;

(2) That such persons shall not be inhibited, directly or indirectly, by governmental restraint or sanction imposed by governmental process, but rather that they shall be encouraged to gather, write, edit, or disseminate news or other information vigorously so that the public may be fully informed;

(3) That compelling such persons to disclose a source of information or disclose unpublished information is contrary to the public interest and inhibits the free flow of information to the public;

(4) That there is an urgent need to provide effective measures to halt and prevent this inhibition;

(5) That the obstruction of the free flow of information through any medium of communication to the public affects interstate commerce; and

(6) That sections 20-144 to 20-147 are necessary to insure the free flow of information and to implement the first and fourteenth amendments and Article I, section 5, of the United States Constitution, and the Nebraska Constitution.

20-145. Terms, defined. For purposes of the Free Flow of Information Act, unless the context otherwise requires:

(1) Federal or state proceeding shall include any proceeding or investigation before or by any federal or state judicial, legislative, executive, or administrative body;

(2) Medium of communication shall include, but not be limited to, any newspaper, magazine, other periodical, book, pamphlet, news service, wire service, news or feature syndicate, broadcast station or network, or cable television system;

(3) Information shall include any written, audio, oral, or pictorial news or other material;

(4) Published or broadcast information shall mean any information disseminated to the public by the person from whom disclosure is sought;

(5) Unpublished or nonbroadcast information shall include information not disseminated to the public by the person from whom disclosure is sought, whether or not related information has been disseminated and shall include, but not be limited to, all notes, outtakes, photographs, film, tapes, or other date of whatever sort not itself disseminated to the public through a medium of communication, whether or not published or broadcast information based upon or related to such material has been disseminated.

(6) Processing shall include compiling, storing, transferring, handling, and editing of information; and

(7) Person shall mean any individual, partnership, limited liability company, corporation, association, or other legal entity existing under or authorized by the law of the United States, any state or possession of the United States, the District of Columbia, the Commonwealth of Puerto Rico, or any foreign country.

20-146. Procuring, gathering, writing, editing, or disseminating news or other information; not required to disclose to courts or public. No person engaged in procuring, gathering, writing, editing, or disseminating news or other information to the public shall be required to disclose in any federal or state proceeding:

(1) The source of any published or unpublished, broadcast or nonbroadcast information obtained in the gathering, receiving, or processing of information for any medium of communication to the public;

(2) Any published or nonbroadcast information obtained or prepared in gathering, receiving, or processing of information for any medium of communication to the public.

20-147. Act, how cited. Sections 20-144 to 20-147 shall be known and may be cited as the Free Flow of Information Act.

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B. State constitutional provision

The Nebraska Constitution has no express shield law provision, and none has been implied from the state Constitution by the courts.

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C. Federal constitutional provision

No state court has applied or rejected a reporter's privilege based on the First Amendment.

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D. Other sources

No reported Nebraska court decision has recognized a reporter's privilege from any source other than the statute.

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III. Scope of protection

A. Generally

While a reporter may be compelled to disclose or testify about information actually broadcast or published, the statute otherwise provides an absolute privilege. It is one of the broader, more absolute reporter's privilege statutes in the nation.

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B. Absolute or qualified privilege

The privilege is absolute, although it does not protect information actually broadcasted or published.

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C. Type of case

1. Civil

The statute does not distinguish between civil and criminal proceedings; it applies by its terms to "any proceeding or investigation before or by any federal or state judicial, legislative, executive or administrative body." Neb. Rev. Stat. § 20-145(1). While the Nebraska Legislature cannot bind federal courts or agencies to its statutory procedures, a federal district judge in Nebraska has indicated he will consider the statute in ruling on subpoenas issued to reporters as a matter of comity.

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2. Criminal

It is possible that a criminal defendant's Sixth Amendment right to a fair trial could override the privilege in an appropriate case, but no reported decision has so held.

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3. Grand jury

Grand jury subpoenas are treated the same as any other subpoena under the statute. Nebraska rarely utilizes grand juries. The author is not aware of any grand jury subpoenas having been issued to reporters.

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D. Information and/or identity of source

The statute specifically protects the identity of sources. Neb. Rev. Stat. § 20-146(1). So long as the information has not been published or broadcast, the statute would also protect information that implicitly identifies the source of information.

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E. Confidential and/or nonconfidential information

The statute provides the same protection to non-confidential information as it does to information received by a reporter in confidence.

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F. Published and/or non-published material

While the protection for non-published material is absolute, a reporter can be compelled to testify regarding material which has been published or broadcast. See Neb. Rev. Stat. §§ 20-146(2) and 20-145(5).

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G. Reporter's personal observations

So long as the observation has not been published or broadcast, it is protected. An unreported county court decision has so held.

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H. Media as a party

The statute does not differentiate between cases where the media is a party and where it is not.

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I. Defamation actions

The statute does not contain a "libel exception," and does not differentiate between libel cases and any other litigation. The express terms of the statute, however, do not address jury instructions or presumptions that no source exists, or presumptions of actual malice. The author believes the stated policies of the statute should prohibit adverse instructions or presumptions, but the issue has not been addressed by any Nebraska court. The author is aware of instances in which media defendants in libel cases have intentionally waived privilege protection in order to more vigorously defend against libel claims.

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IV. Who is covered

Coverage of Nebraska's shield law statute is defined by function, not title. Thus, any person "engaged in procuring, gathering, writing, editing, or disseminating news or other information to the public" is entitled to protection under the statute. Neb. Rev. Stat. § 20-146.

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A. Statutory and case law definitions

1. Traditional news gatherers

a. Reporter

The statute does not define reporter. It protects any person “engaged in procuring, gathering, writing, editing or disseminating news or other information to the public.” Neb. Rev. Stat. § 20-146.

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b. Editor

The statute does not define editor. It protects any person “engaged in procuring, gathering, writing, editing or disseminating news or other information to the public.” Neb. Rev. Stat. § 20-146.

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c. News

The statute does not define news. It protects any person “engaged in procuring, gathering, writing, editing or disseminating news or other information to the public.” Neb. Rev. Stat. § 20-146.

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d. Photo journalist

The statute does not define photojournalist but provides coverage to photojournalists. See Neb. Rev. Stat. § 20-145(5), which includes within the definition of unpublished or nonbroadcast information (which need not be disclosed) "outtakes, photographs, film, tapes or other data of whatever sort."

In an unpublished opinion, a trial court expressly held the shield law privilege to be applicable to video outtakes which had not been broadcast. Frolio v. Pinkelman, Doc. 1057, Page 721 (Dist. Ct. Douglas County, NE, 1-10-07).

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e. News organization/medium

The privilege is applicable to those engaged in "gathering, receiving, or processing of information for any medium of communication to the public." Neb. Rev. Stat. § 20-146(1) and (2). "Medium of communication shall include, but not be limited to, any newspaper, magazine, other periodical, book, pamphlet, news service, wire service, news or feature syndicate, broadcast station or network, or cable television system." Neb. Rev. Stat. § 20-145(2).

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2. Others, including non-traditional news gatherers

Nebraska's shield law applies to all news gatherers, whether "traditional" ones or not. So long as a person is "engaged in procuring, gathering, writing, editing, or disseminating news or other information to the public," the statute provides coverage. Neb. Rev. Stat. § 20-146. The statute also covers others involved in "processing" such information, and defines processing as including "compiling, storing, transferring, handling and editing of information." Neb. Rev. Stat. § 20-145(6).

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B. Whose privilege is it?

The privilege belongs to the media and its constituent parts, not the source.

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V. Procedures for issuing and contesting subpoenas

A. What subpoena server must do

1. Service of subpoena, time

  1. To compel testimony at trial -- Not less than six (6) days before the trial day of the cause upon which witness' attendance required. See Neb. Rev. Stat. § 25-1226 (Reissue 2016).
  2. To depose non-party -- See Nebraska Discovery Rules for all Civil Cases, §§ 6-326 and 6-330. Reasonable notice to adverse party required. Reasonable notice to the deponent required.
  3. c. To compel production by non-party or inspection without a deposition -- See Nebraska Discovery Rules for all Civil Cases, § 6-334(A). Not less than ten (10) days notice to adverse parties prior to issuance of subpoena. If adverse party objects then a hearing can be held to resolve the disputes. Person served with the subpoena has ten (10) days to object.
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2. Deposit of security

Not applicable.

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3. Filing of affidavit

Neither the shield law nor subpoena statutes require the person issuing the subpoena to make any sworn statement in order to procure testimony. Proof of service by affidavit is required unless subpoena is served by sheriff, constable, or coroner. See Neb. Rev. Stat. § 25-1223 (Reissue 2016).

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4. Judicial approval

Judicial approval is not required before a subpoena is served.

However, to subpoena a witness in the context of grand jury proceedings, the Attorney General or County Attorney must file an application directly to the court. A statute specifies that grand jury subpoenas under the wiretap statutes do not suspend the shield law privilege. See Neb. Rev. Stat. § 86-708 (Reissue 2014).

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5. Service of police or other administrative subpoenas

No different procedures, except that a subpoena issuing from a state administrative agency must generally include with the subpoena a statement prepared by the agency outlining the rate of travel pay and fees the witness will be paid for attending.

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B. How to Quash

Since Nebraska's shield law does not provide a privilege for information actually published or broadcast, it may not be possible to wholly quash a given subpoena, depending on the information sought.

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1. Contact other party first

No prohibition from contacting issuing party and asking them to withdraw or rescind subpoena, however, a party need not contact the issuing party before they file a motion to quash or seek a protective order. Any communications should be conducted through counsel. A party resisting a subpoena may also have their attorney contact the other party(ies) to the lawsuit to determine whether they have already filed a motion to quash the subpoena or will file one on the reporter's behalf.

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2. Filing an objection or a notice of intent

Resist the subpoena by filing a motion to quash the subpoena in the court it was issued from. Alternatively, if the person served with a subpoena is a party to the litigation, a protective order can be sought pursuant to Nebraska Discovery Rules for all Civil Cases, § 6-326.

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3. File a motion to quash

a. Which court?

File in the court issuing the subpoena

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b. Motion to compel

If party issuing the subpoena files a motion to compel, file a motion to quash and alternatively seek a protective order.

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c. Timing

File the motion to quash before default on the subpoena has occurred (file objections before the time scheduled for the deposition or testimony). A court has inherent authority to sanction parties for disobeying court orders, regardless of whether he or she will ultimately be directed to testify.

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d. Language

In resisting the subpoena cite to the Free Flow of information Act and Section 6-326 of the Nebraska Discovery Rules for all Civil Cases.

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e. Additional material

Not specified.

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4. In camera review

a. Necessity

Not required before issuance. Can be requested by party resisting subpoena by filing for a protective order.

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No reported decisions.

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c. Consequences of refusing

No reported decisions.

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5. Briefing schedule

Briefing schedule is at the discretion of the court.

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6. Amicus briefs

Whether to allow for the filing of amicus briefs and the time for submitting such briefs is within the discretion of the court.

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VI. Substantive law on contesting subpoenas

A. Burden, standard of proof

The statutory privilege applies to all unpublished or nonbroadcast information. Once the reporter establishes that he or she is entitled to the privilege (i.e., that he or she was engaged in procuring, etc., news or other information for dissemination to the public), no statutory exceptions allow the subpoenaing party to overcome the privilege. It is possible that a criminal defendant may overcome the privilege by demonstrating violation of his or her Sixth Amendment right to a fair trial. While no Nebraska cases address this issue, courts in other jurisdictions have required the defendant to establish that the information sought is admissible in evidence, central or crucial to the defense, and not otherwise available or obtainable.

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B. Elements

1. Relevance of material to case at bar

No reported cases.

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2. Material unavailable from other sources

No reported cases.

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a. How exhaustive must search be?

No reported cases.

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

No reported cases.

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c. Source is an eyewitness to a crime

The statute makes no distinction between eyewitnesses and other sources, and no case law addresses this issue.

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3. Balancing of interests

No reported cases.

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4. Subpoena not overbroad or unduly burdensome

Overbreadth and burden are grounds for quashing any subpoena under general procedural rules.

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5. Threat to human life

No reported cases address whether courts should consider threat to human life in addressing shield law privilege.

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6. Material is not cumulative

No reported cases.

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7. Civil/criminal rules of procedure

A subpoena may be quashed or modified, or a protective order may be granted, if the subpoena fails to allow a reasonable amount of time for compliance; if it requires disclosure of privileged matters; or if it is unduly burdensome or designed to harass.

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8. Other elements

No reported cases.

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C. Waiver or limits to testimony

1. Is the privilege waivable?

No published case law. Certainly, publishing or broadcasting information "waives" the privilege for such information. An unpublished trial court decision holds that the shield law privilege was not waived by providing non-broadcast video footage to law enforcement authorities. Frolio v. Pinkelman, Doc. 1057, page 721 (Dist. Ct. Douglas County, NE, 1-10-07).

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2. Elements of waiver

a. Disclosure of confidential source's name

Publication or broadcast of the name clearly waives privilege. While there is no case law on the point, disclosure of a source's name outside the media organization might be deemed a waiver. No waiver should result from disclosure within the media organization (e.g., to an editor or news director), nor should waiver result from disclosure to the reporter's or organization's lawyer.

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b. Disclosure of non-confidential source's name

The statute does not distinguish between confidential and non-confidential sources.

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c. Partial disclosure of information

Statute protects against disclosure of unpublished or nonbroadcast "data of whatever sort not itself disseminated to the public through a medium of communication, whether or not published or broadcast information based upon or related to such material has been disseminated." Neb. Rev. Stat. § 20-145(5).

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d. Other elements

No case law.

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3. Agreement to partially testify act as waiver?

Since information actually published or broadcast is not protected, testimony to confirm publication of information and its accuracy will not waive privilege as to other, unpublished or non-broadcast information.

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VII. What constitutes compliance?

A. Newspaper articles

Absent agreement among the parties to the litigation, the article must be authenticated by a live witness. That can be the reporter who wrote the story, an editor with appropriate knowledge, or a librarian or archivist. If all parties agree (which often happens), foundation for the article can be presented via affidavit (the affidavit itself is hearsay, thus requiring the agreement of the parties to waive objection).

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B. Broadcast materials

Same rules as are applicable to newspaper articles.

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C. Testimony vs. affidavits

Affidavits are generally hearsay and would not be admissible to prove foundation for article/broadcast material absent agreement of the parties.

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D. Non-compliance remedies

1. Civil contempt

Civil contempt sanctions may be used to coerce compliance with a valid subpoena.

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a. Fines

Fines may be levied as a contempt sanction to coerce compliance with a subpoena. There are no known instances of fines being levied against reporters for failing to comply with a subpoena.

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b. Jail

Indeterminate jail sentences may be used as a contempt sanction to coerce compliance with a subpoena. There are no known instances of jail confinement imposed on reporters for failing to comply with a subpoena.

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2. Criminal contempt

Criminal contempt sanctions are rarely imposed (and even more rarely upheld on appeal) in Nebraska. It is conceivable that a criminal contempt conviction could be imposed after dissolution of a civil contempt sanction following the end of a trial, when testimony would no longer be relevant. That has not happened in Nebraska, to the author’s knowledge.

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3. Other remedies

It is conceivable that other remedies such as adverse presumptions or jury instructions, or perhaps even default judgment, could be utilized where the media is a party. The author does not believe that any such remedies have been utilized in Nebraska.

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VIII. Appealing

A. Timing

1. Interlocutory appeals

An order denying a motion to quash or motion for a protective order is not immediately appealable. However, where the lower court had a clear duty to quash the subpoena or issue a protective order, the denial can be challenged in an original action for mandamus in the Nebraska Supreme Court. State ex rel. Acme Rug Cleaner, Inc. v. Likes, 256 Neb. 34, 588 N.W.2d 783 (1999). A final judgment of criminal contempt is appealable. An order holding a witness in civil contempt is not appealable and must be challenged via an original habeas corpus action in the Nebraska Supreme Court.

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2. Expedited appeals

While the Nebraska Supreme Court can and has expedited appeals (or employed procedures to hasten mandamus proceedings), its rules do not specify legal standards governing such expedition, nor does the case law.

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B. Procedure

1. To whom is the appeal made?

Appeals from orders entered by a county court (the lowest trial level court) are to the district court (a superior trial level court). Appeals from orders entered by a district court are to the Court of Appeals. Review of decisions by the Court of Appeals may be sought in the Nebraska Supreme Court, but such review is discretionary and not regularly exercised. Where a motion to quash or for protective order is denied, the mode of review is by mandamus, which must be filed as an original action in the Supreme Court.

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2. Stays pending appeal

Appeals from final orders entered by trial level courts may be stayed (the official term is superseded) by discretionary order entered by the court rendering judgment. Either the Court of Appeals or the Supreme Court can stay final orders of trial level courts on appeal, although neither the rules nor decisions specify legal standards for such stays. When the Nebraska Supreme Court agrees to consider an original mandamus action, it typically issues an alternative writ of mandamus and stays the lower court proceedings. See State ex rel. Acme Rug Cleaner, Inc., supra.

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3. Nature of appeal

In an appeal from a final order, the court generally reviews for clear error and/or abuse of discretion. In an original mandamus action, the relator must establish that he has a clear legal right to the relief sought, there is a corresponding clear duty existing on the part of the respondent to perform the act in question, and there is no other plain and adequate remedy available in the ordinary course of the law.

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4. Standard of review

In practical terms. both appeals and mandamus actions are reviewed for abuse of discretion. While the language the court uses in mandamus cases sounds like a more deferential review, it amounts to abuse of discretion review as applied by the Supreme Court. See State ex rel. Acme Rug Cleaner, Inc., supra.

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5. Addressing mootness questions

The Nebraska courts have not addressed mootness issues in the context of subpoenas. In other contexts, the Nebraska Supreme Court has sometimes refused to moot appeals on the ground that the issue is capable of repetition but evading review.

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6. Relief

In an original mandamus action (the method of review most likely available to challenge the failure to quash a subpoena or issue a protective order), the Supreme Court provides relief in the form of a mandatory writ of mandamus, which directs the lower court to act in accordance with its terms. In the usual appeal from a final order, the appellate court generally remands the matter for action consistent with the appellate opinion.

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IX. Other issues

A. Newsroom searches

No Nebraska opinion has addressed the federal Privacy Protection Act. A Nebraska statute, Neb. Rev. Stat. §29-813(2) (Reissue 2016) prohibits issuance of a warrant to search a newsroom or other place where the news is prepared or processed, unless probable cause is shown that a person on such premises has committed or is committing a crime.

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B. Separation orders

No statutes or case law address the scope or propriety of separation orders issued against reporters who are both trying to cover the trial and are on a witness list.

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C. Third-party subpoenas

The courts have not addressed a media interest in fighting subpoenas issued to third parties in an attempt to discover a reporter's source.

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D. The source's rights and interests

The courts have not addressed whether sources can intervene to halt disclosure of their identities. Since the statutory privilege belongs to the media, not the source, it seems unlikely that they would allow such intervention. The courts have also not addressed the viability of a source's cause of action against a reporter who has disclosed the source notwithstanding a promise of confidentiality.

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