Nevada
Reporter's Privilege Compendium
Kristen Gallagher
Adam Hosmer-Henner
McDonald Carano LLP
2300 W. Sahara Avenue, Suite 1200
Las Vegas, NV 89102
Telephone: 702-873-4100
ahosmerhenner@mcdonaldcarano.com
With special thanks to Mark A. Hinueber, Stephens Media LLC, Las Vegas, and JoNell Thomas, Las Vegas, who previously authored this outline.
Last updated June 2020
CompareI. Introduction: History & Background
Nevada is often recognized as having the strongest news shield law in the country. The law confers an absolute privilege upon reporters and protects unpublished and published materials, and the confidential sources of the information, from disclosure in any proceeding.
CompareII. Authority for and source of the right
CompareA. Shield law statute
Nevada’s news shield law is located at NRS 49.275:
No reporter, former reporter or editorial employee of any newspaper, periodical or press association or employee of any radio or television station may be required to disclose any published or unpublished information obtained or prepared by such person in such person's professional capacity in gathering, receiving or processing information for communication to the public, or the source of any information procured or obtained by such person, in any legal proceedings, trial or investigation:
1. Before any court, grand jury, coroner's inquest, jury or any officer thereof.
2. Before the legislature or any committee thereof.
3. Before any department, agency or commission of the state.
4. Before any local governing body or committee thereof, or any officer of a local government.
The Legislative history of this statute was explained in Las Vegas Sun v. Eighth Judicial District Court, 104 Nev. 508, 511-12, 761 P.2d 849, 851-52 (1988), overruled on other grounds, Diaz v. Eighth Judicial Dist. Court, 116 Nev. 88, 993 P.2d 50 (2000):
The legislative history behind the current shield law illustrates the legislators' concern with protecting confidentiality during and after the news gathering process. The legislature enacted the first shield law in 1969. It protected news media representatives from forced disclosure of their sources. Members of the press argued that confidential sources had to be protected from exposure to insure the free flow of information, particularly information about government corruption or mismanagement. The public, they claimed, had a right to know about such occurrences, but if sources were afraid to talk to reporters, the public's access to this valuable information would be severely restricted. Supporters of the legislation argued that if reporters could promise sources that their identities would not be revealed, sources would be more likely to give reporters information, and this would benefit the public.
The shield law was extended in 1975 to provide for former newsmen and for unpublished information . . . . The underlying rationale was the same as in 1969: serve the public interest by protecting reporters in their news gathering efforts.
(internal citations omitted).
NRS 49.385 provides for a waiver of certain statutory privileges by voluntary disclosure of confidential matters:
1. A person upon whom these rules confer a privilege against disclosure of a confidential matter waives the privilege if he or his predecessor while holder of the privilege voluntarily discloses or consents to disclosure of any significant part of the matter.
2. This section does not apply if the disclosure is:
-
-
-
(a) Itself a privileged communication; or
-
(b) Made to an interpreter employed merely to facilitate communications.
-
-
This statute does not apply, however, to the news shield law because the statute concerns confidential communications and the shield law in NRS 49.275 protects both published and unpublished materials. Diaz v. Eighth Judicial Dist. Court, 116 Nev. 88, 993 P.2d 50 (2000). In distinguishing the shield law from other types of confidential communications that are waivable, the Nevada Supreme Court found that confidentiality is not the defining factor in whether the shield law exists, nor does confidentiality play a role in determining whether a reporter has waived the privilege. Rather, the news shield statute is distinguishable because it protects all information, not just confidential information, which is obtained by a reporter in his or her capacity as a journalist and which is intended for dissemination. Id. at 100, 58.
CompareB. State constitutional provision
Nevada's Constitution does not have an express shield law provision. Article I, section 9 of the Nevada Constitution provides the following:
Every citizen may freely speak, write and publish his sentiments on all subjects being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press. In all criminal prosecutions and civil actions for libels, the truth may be given in evidence to the Jury; and if it shall appear to the Jury that the matter charged as libelous is true and was published with good motives and for justifiable ends, the party shall be acquitted or exonerated.
It does not appear that the Nevada Supreme Court has considered a news shield law question under the state constitution.
CompareC. Federal constitutional provision
It does not appear that the Nevada Supreme Court has considered the issue of whether there is a reporter's privilege based on the First Amendment to the U.S. Constitution. In fact, it seems unlikely that the court will do so in light of the statutory privilege. See Diaz v. Eighth Judicial Dist. Court, 116 Nev. 88, 993 P.2d 50, 59 n.7 (2000) (“We need not address [the reporter’s] first amendment argument.”), citing Director, Dep't Prisons v. Arndt, 98 Nev. 84, 86, 640 P.2d 1318, 1320 (1982) (noting that “it is well settled that this court will not address constitutional issues unless they are requisite to the disposition of a case"); see also Aspen Fin. Servs., Inc. v. Eighth Judicial Dist. Court, 129 Nev. 878, 883, 313 P.3d 875, 878 (2013) (deeming federal cases irrelevant as they “relate to a qualified journalistic privilege developed under the federal common law, which is distinct from the state statutory privilege at issue here”).
The Ninth Circuit Court of Appeals has concluded that there is a qualified privilege under the First Amendment. Farr v. Pitchess, 522 F.2d 464, 467-68 (9th Cir. 1975); Shoen v. Shoen, 5 F.3d 1289, 1292 (9th Cir. 1993). The federal district courts in Nevada have followed the Ninth Circuit's precedent by recognizing the existence of a qualified privilege under the First Amendment. See Newton v. Nat’l Broad. Co., 109 F.R.D. 522, 526-27 (D. Nev. 1985). The constitutional privilege, however, is not as protective as the statutory privilege provided for by NRS 49.275. In Newton, the federal district court concluded that a television reporter would have been required to disclose information concerning his confidential sources under the qualified First Amendment privilege against disclosure of confidential sources. Id. at 527. The court applied a balancing test and found that disclosure was mandated under the constitutional privilege because the case was a libel action where the plaintiff was a public figure who had to meet the "actual malice" standard enunciated in New York Times v. Sullivan. The court found it significant that the journalist claiming the privilege was a party defendant and that the plaintiff had effectively exhausted alternative means of learning the identity of the confidential sources. Id. Nonetheless, the court found the information to be privileged under NRS 49.275 and recognized that "Nevada's press shield law provides the broadest protection to news media sources of any State shield law enacted in the United States." Id. at 529. In discussing Shoen, the Magistrate Judge in In re Stratosphere Corp. Securities Litigation, 183 F.R.D. 684, 686 (D. Nev. 1999), noted:
Although this Court is not bound to follow Nevada law in determining whether a reporter should be compelled to disclose his or her sources, when dealing with purely federal issues of law, it should not ignore Nevada's public policy, as expressed in its statute, of providing reporters protection from divulging their sources. In writing his article for Nevada publication, clearly Mr. Di Rocco had a reasonable expectation that he would be protected by Nevada's media privilege law.
Cf. Am. Civil Liberties Union of Nevada v. City of Las Vegas, 13 F. Supp. 2d 1064 (D. Nev. 1998). It should be noted that in a civil case, a federal court would apply Nevada’s shield statute (and not the federal common law) where state law supplies the rule of decision. Fed. R. Evid. 501; Newton, 109 F.R.D. 522.
CompareD. Other sources
Other than NRS 49.275, there appear to be no other sources of a reporter’s privilege in Nevada.
CompareIII. Scope of protection
CompareA. Generally
Courts and commentators have generally recognized the fact that Nevada's news shield law offers the broadest protection to news media sources of any state shield law enacted in the United States.
CompareB. Absolute or qualified privilege
NRS 49.275 provides for an absolute privilege, for both published and unpublished information. The news shield statute is not limited to confidential sources, but includes any source. The statute protects both the information obtained and the source of the information. However, the Nevada Supreme Court has stated that "although the news shield statute provides an absolute privilege to reporters engaged in the newsgathering process, there may be certain situations, e.g., when a defendant's countervailing constitutional rights are at issue, in which the news shield statute might have to yield so that justice may be served." Diaz v. Eighth Judicial Dist. Court, 116 Nev. 88, 993 P.2d 50, 59 (2000); Aspen Fin. Servs., Inc. v. Eighth Judicial Dist. Court, 129 Nev. 878, 313 P.3d 875, 879-80 (2013).
CompareC. Type of case
Compare1. Civil
NRS 49.275 does not provide for a different standard for civil and criminal cases. The statute specifically refers to administrative matters, legislative hearings, other governmental proceedings, and court proceedings.
Compare2. Criminal
It does not appear that any written opinions have been published in criminal cases concerning application of the press shield law. Subpoenas issued by either the prosecution or the defense likely would still be limited by the news shield statute and subject to being quashed.
Compare3. Grand jury
NRS 49.275 specifies that the privilege is applicable to grand jury proceedings.
CompareD. Information and/or identity of source
NRS 49.275 specifically protects the identity of a source. It also protects information that implicitly identifies a source of information. This protection is available for both published and unpublished information obtained by a reporter in that person’s professional capacity.
CompareE. Confidential and/or nonconfidential information
NRS 49.275 protects both confidential and non-confidential information.
CompareF. Published and/or non-published material
NRS 49.275 protects both published and unpublished materials.
CompareG. Reporter's personal observations
receiving or processing information for communication to the public, or the source of any information procured or obtained by [the reporter].” Aspen Fin. Servs., Inc. v. Eighth Judicial Dist. Court of State ex rel. Cty. of Clark, 129 Nev. 878, 313 P.3d 875, 879 (2013) (quoting NRS 49.275). The statute does not provide protection for information gathered in other capacities." Diaz v. Eighth Judicial Dist. Court, 116 Nev. 88, 993 P.2d 50, 59 (2000).
CompareH. Media as a party
NRS 49.275 does not make any distinction between cases where the media is a party and where it is not. The Nevada Supreme Court, however, has held that in types of cases such as libel, "once a media litigant has invoked the protection of the news shield statute to resist discovery, the defendant may not later rely on the privileged information as a defense." Diaz v. Eighth Judicial Dist. Court, 116 Nev. 88, 993 P.2d 50, 59 (2000).
CompareI. Defamation actions
NRS 49.275 does not distinguish between libel cases and other cases. The Nevada Supreme Court, however, has held that "once a media litigant has invoked the protection of the news shield statute to resist discovery, the defendant may not later rely on the privileged information as a defense." Diaz v. Eighth Judicial Dist. Court, 116 Nev. 88, 993 P.2d 50, 59 (2000). It has also held that "to the extent that a plaintiff in a defamation action is required to prove that a media litigant either knew that the published information was false or acted in reckless disregard of the truth, an assertion of the shield statute may result in discovery sanctions." Id. at n.6.
In Laxalt v. McClatchy, 116 F.R.D. 438 (D. Nev. 1987), the court explained that there was no exception to the privilege for defamation cases. Id. at 452. It also explained the consequences of invocation of the statute:
This is not to say, however, that all is bitter for the plaintiff. For if the defendants are allowed to invoke the Nevada reporter's privilege regarding their confidential sources, they must do so absolutely. Therefore, if the defendants choose to prove their defense through witnesses whose identities are protected by this order, the defendants will be deemed to have waived the privilege. If the defendants choose to call the confidential sources as witnesses at trial, the plaintiff will be able to probe in death as to their identity and credibility on cross-examination. In addition, if [a reporter] is questioned at trial regarding the sources for his articles, he may not respond that the information came from a 'reliable or confidential source.' Instead, if [the reporter] chooses to rely on the privilege at trial, he must do so absolutely. His responses to such a question would therefore have to be that he relies on his privilege as a reporter under Nevada law, and that he refuses to answer the question on that basis.
Id. (citations omitted).
CompareIV. Who is covered
NRS 49.275 covers reporters, former reporters, and editorial employees of any newspaper, periodical or press association. It all applies to employees of any radio or television station. The statute does not specifically define these terms. The Nevada Supreme Court declined to “resolve whether or not a blog falls under the definition of a newspaper” but concluded that “a blog should not be disqualified from the news shield statute under MRS 49.275 merely on the basis that the blog is digital, rather than appearing in an ink-printed, physical form.” Toll v. Wilson, 135 Nev. 430, 435, 453 P.3d 1215, 1219 (2019).
CompareA. Statutory and case law definitions
Compare1. Traditional news gatherers
Comparea. Reporter
NRS 49.275 does not define "reporter" and there appears to be no other statute defining this term. In Toll v. Wilson, 135 Nev. 430, 433, 453 P.3d 1215, 1218 (2019), the Nevada Supreme Court agreed with a district court’s reliance on Webster’s Third New International Dictionary (2002) that defined a reporter as “one that reports; one who reports news events; a commentator.”
It should be noted that, in connection with the Nevada Supreme Court Rules on Electronic Coverage of Court Proceedings, which are applicable to all civil and criminal trials in Nevada, the term “news reporter” is defined as “any person who gathers, prepares, collects, photographs, records, writes, edits, reports, or publishes news or information that concerns local, national, or international events or other matters of public interest for dissemination to the public.” SCR 229(1)(c); Solid v. Eighth Judicial Dist. Court, 393 P.3d 666, 671 (Nev. 2017). While there has been no authority comparing SCR 229(1)(c) to NRS 49.275, the existence of the rule should be noted.
Compareb. Editor
NRS 49.275 does not define "editorial employee" and there appears to be no other statute defining this term.
Comparec. News
NRS 49.275 does not define "news" and there appears to be no other statute defining this term.
Compared. Photo journalist
NRS 49.275 does not specifically reference photojournalists.
Comparee. News organization/medium
NRS 49.275 specifies that the privilege is applicable to reporters, former reporters, and editorial employees of any newspaper, periodical or press association, and employees of any radio or television station. It does not provide any definitions for these terms. The privilege has been found applicable to a newspaper (as opposed to a reporter from a newspaper) and its publisher. Las Vegas Sun, Inc. v. Schwartz, 104 Nev. 508, 515 n.7, 761 P.2d 849, 854 n.7 (1988), overruled on other grounds, Diaz v. Eighth Judicial Dist. Court, 116 Nev. 88, 993 P.2d 50 (2000) ("We are satisfied that the legislature meant to include newspaper publishers in its definition of 'editorial employees.'").
In Toll v. Wilson, 135 Nev. 430, 453 P.3d 1215 (2019), the Nevada Supreme Court held that digital media (e.g. a blog) falls within the protections of NRS 49.275. The court declined to specifically determine whether the petitioner qualified for such protection as a blogger and remanded for further proceedings to determine whether the subject blog falls within the protection of the news shield statute.
Compare2. Others, including non-traditional news gatherers
The press shield law does not apply by statutory language to non-traditional news gatherers such as authors and academic researchers. The statute is not limited to professional or paid reporters.
CompareB. Whose privilege is it?
“The privilege from compelled disclosure belongs to the journalist, not the source, who may be unidentified.” Diaz v. Eighth Judicial Dist. Court, 116 Nev. 88, 99, 993 P.2d 50, 57 (2000).
CompareV. Procedures for issuing and contesting subpoenas
CompareA. What subpoena server must do
Compare1. Service of subpoena, time
There appear to be no special rules concerning service of subpoenas to members of the news media.
Criminal cases
Issuance of subpoenas in criminal cases is governed by Chapter 174 of the Nevada Revised Statutes (“NRS”). According to NRS 174.305, a subpoena issued in a criminal case must be issued by the clerk under the seal of the court.
Subpoenas issued in criminal cases “may be served by a peace officer or by any other person who is not a party and who is not less than 18 years of age.” NRS 174.345(1). Generally, “service of a subpoena must be made by delivering a copy” of the subpoena to the person named. Id. A subpoena requiring the attendance of a witness at a hearing or trial may be served at any place within the State of Nevada. NRS 174.365.
NRS 174.315 governs subpoenas issued in connection with grand juries.
Civil cases
Subpoenas issued in a civil case are governed by Nevada Rule of Civil Procedure 45. A subpoena must issue from the court where the action is pending. The clerk must issue the subpoena, signed but otherwise blank, to a party who requests it. That party must complete it before service. An attorney also may issue and sign a subpoena if the attorney is authorized to practice in the issuing court. See NRCP 45(a)(2)–(3).
If a civil subpoena requires “the production of documents, electronically stored information, or tangible things, or the inspection of premises before trial, then at least 7 days before it is served on the person to whom it is directed, a notice and a copy of the subpoena must be served on each party to permit a party to object to and seek issuance of a protective order against the subpoena during that time.” NRCP 45(a)(4).
If a party to the litigation objects to the subpoena served on a third party, “the objecting party must file and serve written objections to the subpoena and a motion for a protective order under Rule 26(c) within 7 days after being served with notice and a copy of the subpoena under Rule 45(a)(4)(A).” The party must “demonstrate a basis for asserting that the command will require disclosure of privileged, confidential, or other protected matter . . . .” Id.
If the subpoenaed person objects, she or he “must serve [the objection] before the earlier of the time specified for compliance or 14 days after the subpoena is served.” NRCP 45(c)(2)(B).
Any person who is at least 18 years old and not a party may serve a subpoena. NRCP 45(b). If the subpoena requires testimony, the serving party must tender the fee for one day’s attendance and the mileage allowed by law. Fees and mileage need not be tendered when the subpoena issues on behalf of the state or any of its officers or agencies. NRS 50.225.
A subpoena may be served at any place within the state. NRCP 45(c)(3)(A)(ii). A subpoena may also be served in another state or territory of the United States as provided by the law of that state or territory. A subpoena may also be served in a foreign country as provided by the law of that country. Finally, a subpoena issued by a court in another state or territory of the United States that is directed to a person in Nevada must be presented to the clerk of the district court in the county in which discovery is sought to be conducted.
Compare2. Deposit of security
A deposit of security is not required before a party issues a subpoena or before a member of the media invokes the news shield statute. However, witnesses are entitled to fees of $25 per day and travel expenses based on standard mileage reimbursement rates set by the IRS or the board of county commissioners, pursuant to NRS 50.225. Notably, a person “is not obligated to appear in a civil action or proceeding unless the person has been paid” these fees. NRS 50.225(6).
Compare3. Filing of affidavit
NRS 49.275 does not require “a party claiming the privilege to file an affidavit in support of a request for protection under the statute.” Aspen Fin. Servs., Inc. v. Eighth Judicial Dist. Court, 129 Nev. 878, 313 P.3d 875, 878 (2013). The motion to quash a subpoena must demonstrate “that the information sought by the subpoena is facially protected by the news shield statute.” Id. at 884, 879. A party may submit an affidavit or other evidence in support of a motion to compel compliance with a subpoena.
Compare4. Judicial approval
There is no requirement that a judge or magistrate judge approve a subpoena before a party may serve it.
Compare5. Service of police or other administrative subpoenas
Certain administrative proceedings may require application to a hearing officer or other appropriate authority to obtain permission to issue a subpoena. Once approved, there are no special rules regarding the use of other administrative subpoenas.
CompareB. How to Quash
Compare1. Contact other party first
Most objections to subpoenas to the media can be resolved by a simple telephone call. Some attorneys in Nevada may be unfamiliar with the news shield law. Reference should be made to NRS 49.275; Aspen Fin. Servs., Inc. v. Eighth Judicial Dist. Court, 129 Nev. 878, 313 P.3d 875 (2013); and Diaz v. Eighth Judicial Dist. Court, 116 Nev. 88, 993 P.2d 50 (2000). If the attorney agrees to withdraw the subpoena, a letter confirming this fact should be sent. Most local court rules require that the parties attempt to resolve discovery matters by contacting the other party either in person or by telephone prior to filing a motion to quash or a motion to compel.
Compare2. Filing an objection or a notice of intent
In criminal cases a motion to quash should be filed. In civil cases, service of a timely objection may be made pursuant to NRCP 45(c)(2)(B) within “the earlier of the time specified for compliance or 14 days after the subpoena is served.” The receiving party may also file a timely motion to quash or motion for protective order. NRCP 45(c)(3).
Compare3. File a motion to quash
Comparea. Which court?
A motion to quash should be filed in the court where the underlying action is pending.
Compareb. Motion to compel
A reporter should not wait for a motion to compel before filing a motion to quash in a criminal case. In civil cases, it is generally acceptable to assert objections and await a motion to compel if the subpoenaing party intends to pursue this matter. This is a strategic decision as it is acceptable to affirmatively file a motion to quash or motion for protective order prior to the filing of a motion to compel.
Comparec. Timing
Generally, the motion should be filed prior to the date and time listed on the subpoena. An order may be sought on shortened time or an emergency basis prior to the compliance deadline.
Compared. Language
Reference should be made to the news shield statute and the First Amendment. NRS 49.275; Aspen Fin. Servs., Inc. v. Eighth Judicial Dist. Court, 129 Nev. 878, 313 P.3d 875, 878 (2013); Diaz v. Eighth Judicial Dist. Court, 116 Nev. 88, 94, 99, 993 P.2d 50, 54, 57 (2000).
Comparee. Additional material
Compare4. In camera review
Comparea. Necessity
The law does not direct a court to conduct an in camera review of materials or interview the reporter prior to deciding a motion to quash.
Compareb. Consequences of consent
There is no automatic stay pending appeal in the event of an adverse ruling in cases where a reporter or publisher consents to an in camera review.
Comparec. Consequences of refusing
There are no published decisions concerning the consequences to a reporter or publisher who refuses to consent to an in camera review.
Compare5. Briefing schedule
The briefing schedule varies by local rule, but in state district court, a response is generally due 14 calendar days after service of a motion (and 14 days in federal district court). Motions may be heard on shortened time or on an emergency basis if requested and ordered by the applicable commissioner, magistrate judge or district court judge.
Compare6. Amicus briefs
Nevada courts routinely accept amicus briefs in the district courts and Nevada Supreme Court. Richard Karpel, ExecutiveDirector of the Nevada Press Association can be contacted at 775-885-0866. The Nevada Press Association is located at 102 N. Curry St., Carson City, Nevada 89703; fax number: 775-885-8233.
CompareVI. Substantive law on contesting subpoenas
CompareA. Burden, standard of proof
NRS 49.275 provides for an absolute privilege, for both published and unpublished information. The news shield statute is not limited to confidential sources, but includes any source. The statute protects both the information obtained and the source of the information. However, the Nevada Supreme Court has stated, in dicta, that "although the news shield statute provides an absolute privilege to reporters engaged in the newsgathering process, there may be certain situations, e.g., when a defendant's countervailing constitutional rights are at issue, in which the news shield statute might have to yield so that justice may be served." Aspen Fin. Services, Inc. v. Eighth Judicial Dist. Court, 129 Nev. 878, 313 P.3d 875, 879-80 (2013), citing Diaz v. Eighth Judicial District Court, 116 Nev. 88, 993 P.2d 50, 59 (2000). The court has not issued any opinions concerning a conflict between a criminal defendant's constitutional rights and the rights of the media under NRS 49.275. It is therefore unclear as to who would bear the burden and what the standard of proof would be in such a case.
CompareB. Elements
A request for protection under news shield statute may be raised by a reporter’s attorney in a motion to quash a subpoena, without the need to file a supporting affidavit, as long as the motion demonstrates that the information sought by the subpoena is facially protected by the news shield statute. Aspen Fin. Services, Inc. v. Eighth Judicial Dist. Court, 129 Nev. 878, 313 P.3d 875, 879 (2013), overruling Las Vegas Sun, Inc. v. Eighth Judicial Dist. Court, 104 Nev. 508, 761 P.2d 849 (1988). A mere recitation of the statute alone remains insufficient to claim the privilege. Las Vegas Sun v. Schwartz, 104 Nev. 508, 514, 761 P.2d 849, 854 (1988), overruled on other grounds, Diaz v. Eighth Judicial District Court, 116 Nev. 88, 993 P.2d 50 (2000). Any objection to a subpoena, motion to quash or other motion should be accompanied by information sufficient to establish the information sought by the subpoena is facially protected. Aspen Fin. Servs., Inc., 129 Nev. 878, 313 P.3d at 879.
Compare1. Relevance of material to case at bar
In most cases, the relevance of the material or testimony that has been subpoenaed should be irrelevant. The privilege is absolute and does not rest on materiality. As noted above, however, the Nevada Supreme Court has noted in dicta that there may be situations in which the privilege may be defeated, such as in a case where a criminal defendant's constitutional rights would be violated if the privilege were recognized. Aspen Fin. Servs., Inc. v. Eighth Judicial Dist. Court, 129 Nev. 878, 313 P.3d 875, 879-80 (2013), citing Diaz v. Eighth Judicial Dist. Court, 116 Nev. 88, 993 P.2d 50, 59 (2000). In such a case, it is likely that the materiality of the testimony would be considered. See, e.g., id. at 106, 62 (Maupin, J., concurring) (“In the present case, the evidence sought has only marginal importance in the matter pending in district court.”).
Compare2. Material unavailable from other sources
In most cases, the unavailability of the material from other sources should be irrelevant. The privilege is absolute and does not rest on unavailability from other sources. As noted above, however, the Nevada Supreme Court has noted in dicta that there may be situations in which the privilege is defeated, such as in a case where a criminal defendant's constitutional rights would be violated if the privilege were recognized. Aspen Fin. Servs., Inc. v. Eighth Judicial Dist. Court, 129 Nev. 878, 313 P.3d 875, 879-80 (2013), citing Diaz v. Eighth Judicial Dist. Court, 116 Nev. 88, 993 P.2d 50, 59 (2000). In such a case, it is likely that the unavailability of the of the testimony from other sources could be considered. It should also be noted that in Diaz, a concurring opinion gave extensive analysis of the fact that the information sought was available from other sources. Although it appears that such discussion was not necessary for resolution of that matter, it may be indicative of the court's interest in related factual issues and its potential evaluation when faced with a “defendant’s countervailing constitutional rights.” Id. at 101, 59.
Comparea. How exhaustive must search be?
In light of the absolute nature of the privilege, Nevada cases have not discussed any standards for exhaustion.
Compareb. What proof of search does a subpoenaing party need to make?
In light of the absolute nature of the privilege, Nevada cases have not discussed any standards for proof of search.
Comparec. Source is an eyewitness to a crime
There is no statutory exception to the privilege for a source that was a witness to a crime. However, the Nevada Supreme Court has stated, in dicta, that "although the news shield statute provides an absolute privilege to reporters engaged in the newsgathering process, there may be certain situations, e.g., when a defendant's countervailing constitutional rights are at issue, in which the news shield statute might have to yield so that justice may be served." Aspen Fin. Servs., Inc. v. Eighth Judicial Dist., 129 Nev. 878, 313 P.3d 875, 879-80 (2013), citing Diaz v. Eighth Judicial Dist. Court, 116 Nev. 88, 993 P.2d 50, 59 (2000). It may be the case that if a source witnessed a crime or was a participant in a crime, and a criminal defendant required information about the source in order to defend himself against criminal charges, Nevada courts could find an exception to the news shield law in NRS 49.275. Such an argument should not prevail in cases where the prosecution seeks disclosure as the State has no constitutional rights that would prevail over the statutory privilege. There are no cases directly addressing this issue.
Compare3. Balancing of interests
The terms of the statute do not provide for any judicial balancing of interests in determining whether to quash the subpoena. The Nevada Supreme Court has stated that "although the news shield statute provides an absolute privilege to reporters engaged in the newsgathering process, there may be certain situations, e.g., when a defendant's countervailing constitutional rights are at issue, in which the news shield statute might have to yield so that justice may be served."Aspen Fin. Servs., Inc. v. Eighth Judicial Dist. Court, 129 Nev. 878, 313 P.3d 875, 879-80 (2013), citing Diaz v. Eighth Judicial Dist. Court, 116 Nev. 88, 993 P.2d 50, 59 (2000). Thus, it has left open the possibility for a judicial balancing of interests in those circumstances.
Compare4. Subpoena not overbroad or unduly burdensome
The discovery commissioner and district court judges are generally entitled to make a determination as to whether a subpoena is overly broad or unduly burdensome and a reporter’s attorney should also raise any such issue in connection with a motion to quash or for protective order.
Compare5. Threat to human life
In light of the absolute nature of the privilege, Nevada cases have not addressed whether a judge is required to weigh whether the mattered subpoenaed involves a threat to human life.
Compare6. Material is not cumulative
The discovery commissioner and district court judges are generally entitled to make a determination as to whether a subpoena seeks cumulative information and a reporter’s attorney should also raise any such issue in connection with a motion to quash or for protective order.
Compare7. Civil/criminal rules of procedure
The rules of procedure provide that a motion to quash or motion for protective order may be filed to contest frivolous or unduly burdensome subpoenas. A timely objection to a subpoena may be made to the issuing party in civil cases that command production or permit inspection of documents and designated materials. The person making the objection must serve it before the earlier of the time specified for compliance or 14 days after the subpoena is served. NRCP 45(c)(2)(B). Sanctions in the form of an award of attorneys’ fees may also be sought, although they are granted more often in civil cases than in criminal cases. NRCP 45(c)(1).
Compare8. Other elements
There are no other substantive elements that must be met before the privilege can be overcome.
CompareC. Waiver or limits to testimony
The privilege is not waived by publication of the information, but will be deemed waived if the journalist relies on confidential information in defending against a libel action. Diaz v. Eighth Judicial Dist. Court, 116 Nev. 88, 993 P.2d 50, 59 (2000).
Compare1. Is the privilege waivable?
In Diaz v. Eighth Judicial District Court, 116 Nev. 88, 993 P.2d 50 (2000), the Nevada Supreme Court recognized that the privilege belongs to the reporter. The privilege covers both published and unpublished information, so it will not be waived based upon publication of otherwise confidential information. The Nevada Supreme Court, however, has held that waiver may occur in limited circumstances as "once a media litigant has invoked the protection of the news shield statute to resist discovery, the defendant may not later rely on the privileged information as a defense." Id. at 101, 58–59.
Compare2. Elements of waiver
Comparea. Disclosure of confidential source's name
Disclosure of a confidential source's name within the context of a published article will not be sufficient to waive the privilege. Disclosure of a confidential source's name to an editor or lawyer will not be sufficient to waive the privilege.
Compareb. Disclosure of non-confidential source's name
Disclosure of a non-confidential source's name will not be sufficient for waiver of the privilege.
Comparec. Partial disclosure of information
If the reporter discloses partial information from the source, the privilege will not be deemed waived. A reporter would likely not be permitted to provide partial information in defending a defamation or libel action and then claim the privilege for other information about the source. Diaz v. Eighth Judicial Dist. Court, 116 Nev. 88, 993 P.2d 50, 59 (2000). The statute must be invoked for the information in its entirety.
Compared. Other elements
Waiver may be found if the reporter attempts to defend a defamation or libel action by revealing partial information about a source. Diaz v. Eighth Judicial Dist. Court, 116 Nev. 88, 993 P.2d 50, 59 (2000). The statute must be invoked for the information in its entirety.
Compare3. Agreement to partially testify act as waiver?
There are no published Nevada cases addressing whether a waiver of the privilege will be found if a reporter agrees to partially testify, such as to confirm that the story is accurate and true as published.
CompareVII. What constitutes compliance?
In a civil case, a party issuing a subpoena for the production of documents, electronically stored information, or tangible things, must provide parties to the action with notice of not less than 7 days before service of the subpoena to permit a party to object to and seek issuance of a protective order against the subpoena during that time. NRCP 45(a)(4)(A). Non-parties who are subpoenaed to produce documents or other materials are not required to be provided specific time to comply, but the rule does require an issuing party to take reasonable steps to avoid imposing undue burden or expense. NRCP 45(c)(1). Additionally, a subpoena issued to a non-party for the production of documents or for inspection does not require personal attendance. NRCP 45(c)(2)(A)(i).
CompareA. Newspaper articles
There appear to be no Nevada cases addressing whether newspaper articles are self-authenticating or who can authenticate the material. NRS 52.145 provides that "printed materials purporting to be newspapers or periodicals are presumed to be authentic."
CompareB. Broadcast materials
There appear to be no Nevada cases specifically addressing whether tapes of broadcast materials are self-authenticating or what steps must be taken to authenticate a broadcast tape. However, the Nevada Supreme Court has stated that “the requirement of authentication . . . is satisfied by evidence or other showing sufficient to support a finding that the matter in question is what its proponent claims.” Archanian v. State, 122 Nev. 1019, 1030, 145 P.3d 1008, 1016–17 (2006) (citing NRS 52.015(1)) (finding videotape downloaded from surveillance system authenticated by police detective testimony).
CompareC. Testimony vs. affidavits
A declaration or affidavit from a reporter may be sufficient in some circumstances where a record was made in the course of regularly conducted activity. NRS 52.260; NRS 53.045 (permitting unsworn declaration under penalty of perjury in lieu of affidavit). Further, declarations and affidavits are generally admissible in support of most motions, including dispositive motions, in Nevada courts. NRS 52.260.
CompareD. Non-compliance remedies
Although there is no case law directly addressing the issue of non-compliance remedies, it appears that a reporter who refuses to comply with a court order to testify or produce documents could be held in civil contempt or criminal contempt. If a reporter is a party to a civil action, the court may also impose discovery sanctions.
Compare1. Civil contempt
Comparea. Fines
NRS 50.195 provides, in part:
- Refusal to be sworn or to answer as a witness may be punished as a contempt by the court. In a civil action, if the person so refusing is a party, the court may strike any pleading on the person’s behalf, and may enter judgment against that person.
- A witness disobeying a subpoena in a civil action shall also forfeit to the party aggrieved the sum of $100 and all damages which the party may sustain by the failure of the witness to attend, which forfeiture and damages may be recovered in a civil action.
b. Jail
NRS 22.100 provides:
1. Upon the answer and evidence taken, the court or judge or jury, as the case may be, shall determine whether the person proceeded against is guilty of the contempt charged.
2. Except as otherwise provided in NRS 22.110, if a person is found guilty of contempt, a fine may be imposed on the person not exceeding $500 or the person may be imprisoned not exceeding 25 days, or both.
3. In addition to the penalties provided in subsection 2, if a person is found guilty of contempt pursuant to subsection 3 of NRS 22.010, the court may require the person to pay to the party seeking to enforce the writ, order, rule or process the reasonable expenses, including, without limitation, attorney's fees, incurred by the party as a result of the contempt.
NRS 22.110 provides:
1. Except as otherwise provided in subsection 2, when the contempt consists in the omission to perform an act which is yet in the power of the person to perform, the person may be imprisoned until the person performs it. The required act must be specified in the warrant of commitment.
2. A person so imprisoned as a result of his or her failure or refusal to testify before a grand jury may be imprisoned in the county jail for a period not to exceed 6 months or until that grand jury is discharged, whichever is less.
There appear to be no limits for jail sentences in cases of civil contempt. It does not appear that there are any recent cases of reporters who went to jail rather than disclose the names of confidential sources or information. Likewise, it does not appear that there are any recent cases in which reporters have been threatened with jail sentences.
Compare2. Criminal contempt
NRS 50.195 provides, in part:
3. A witness disobeying a subpoena issued on the part of a defendant in a criminal action shall also forfeit to the defendant the sum of $100, which may be recovered in a civil action, unless good cause can be shown for the witness’s nonattendance.
NRS 50.205 provides:
In case of failure of a witness to attend, the court or officer issuing the subpoena, upon proof of the service thereof and of the failure of the witness, may issue a warrant to the sheriff of the county to arrest the witness and bring the witness before the court or officer where the attendance of the witness was required.
There appear to be no recent cases in Nevada involving criminal contempt of a reporter.
Compare3. Other remedies
The Nevada Supreme Court, however, has held that "once a media litigant has invoked the protection of the news shield statute to resist discovery, the defendant may not later rely on the privileged information as a defense." Diaz v. Eighth Judicial Dist. Court, 116 Nev. 88, 993 P.2d 50, 59 (2000). It has also held that "to the extent that a plaintiff in a defamation action is required to prove that a media litigant either knew that the published information was false or acted in reckless disregard of the truth, an assertion of the shield statute may result in discovery sanctions." Id. at n.6.
CompareVIII. Appealing
CompareA. Timing
Compare1. Interlocutory appeals
A petition for writ of prohibition or mandamus in connection with a discovery order is an appropriate remedy to prevent pretrial discovery of privileged material. Toll v. Wilson, 135 Nev. 430, 436, 453 P.3d 1215, 1219 (2019) (“A writ of prohibition is appropriate when the relief is to ‘arrest the proceedings’ and prohibit some exercise of judicial function. NRS 34.320. The judicial function in this case is to compel Toll to reveal his sources, which Toll seeks to prohibit.”).
Compare2. Expedited appeals
A petition for writ of prohibition or mandamus in connection with a discovery order is an appropriate remedy to prevent pretrial discovery of privileged material. Toll v. Wilson, 135 Nev. 430, 432, 453 P.3d 1215, 1217 (2019) (“Therefore, even though discovery issues are traditionally subject to the district court’s discretion and unreviewable by a writ petition, this court will intervene when the district court issues an order requiring disclosure of privileged information.”). An emergency petition that seeks relief from an interlocutory order in less than 14 days may be filed in accordance with Rule 21 of the Nevada Rules of Appellate Procedure.
In the event the subject order is a final order or has otherwise been certified as final pursuant to Nevada Rule of Civil Procedure 54(b), a notice of appeal must be filed within 30 days of notice of entry of judgment in a civil case and within 30 days of a judgment of conviction in a criminal case. A party may file a motion to expedite an appeal with the Nevada Supreme Court. There is no specific statute or rule which provides for an expedited appeal in cases involving news media subpoenas. A motion to stay a district court order must be made in the district court prior to seeking relief from the Nevada Supreme Court through the filing of a motion to stay a district court order. NRAP 8(a)(1).
CompareB. Procedure
Compare1. To whom is the appeal made?
Appeals from municipal court or justice court are made to district court. Objections to an order from the discovery commissioner may be made to the district court. Appeals from district court decisions are made to the Nevada Supreme Court. Nevada has an intermediate appellate court, the Nevada Court of Appeals, but appeals are not taken directly to the Court of Appeals. The Nevada Supreme Court determines whether it will retain matters or whether it will assign review to the Nevada Court of Appeals. In most circumstances involving the news shield statute, however, writ relief will be required from the Nevada Supreme Court as the requirements for an appeal would not yet be met.
Compare2. Stays pending appeal
A motion for stay pending appeal, or stay pending petition for extraordinary relief, will not be entertained by the Nevada Supreme Court unless a motion for stay is first made in the district court. NRAP 8(a)(1). A motion for stay pending appeal should be premised upon violation of the news shield law codified in NRS 49.275, constitutional right, and a claim of irreparable harm in the event of forced disclosure prior to appellate review.
Compare3. Nature of appeal
An appeal may be taken only if the person appealing the order is a party to the action and the order is either final or has been certified as final pursuant to Nevada Rule of Civil Procedure 54(b). A reporter who is not a party to an action may challenge an order compelling compliance with a subpoena through a petition for a writ of prohibition or a petition for a writ of mandamus. A notice of appeal must be filed within 30 days of notice of entry of judgment in a civil case and within 30 days of a judgment of conviction in a criminal case. In Diaz v. Eighth Judicial District Court, 116 Nev. 88, 993 P.2d 50, 54 (2000), the court entertained a petition for a writ of mandamus from a party to the action who challenged a district court's order quashing a subpoena to a reporter, despite the availability of an appeal, because there was "an important issue of law [which] needs clarification and public policy is served by this court's invocation of its original jurisdiction[.]" Nevada courts have also confirmed that a petition for writ of prohibition or mandamus in connection with a discovery order is an appropriate remedy to prevent pretrial discovery of privileged material. Columbia/HCA Healthcare Corp. v. Eighth Judicial Dist. Court, 113 Nev. 521, 526, 936 P.2d 844, 847 (1997).
Compare4. Standard of review
Questions of statutory interpretation are subject to the Nevada Supreme Court's independent review. Aspen Fin. Servs., Inc. v. Eighth Judicial Dist. Court, 129 Nev. 878, 313 P.3d 875, 878 (2013); Diaz v. Eighth Judicial Dist. Court, 116 Nev. 88, 993 P.2d 50, 54 (2000).
Compare5. Addressing mootness questions
It does not appear that the Nevada Supreme Court has addressed any mootness issues within the context of appeals or writ proceedings concerning the news shield law (NRS 49.275).
Compare6. Relief
A reporter's attorney should file a petition for a writ of mandamus, or in the alternative, a writ of prohibition in cases where the reporter is not a party to the action, or in cases where confidential information will be disclosed in compliance with a district court order compelling production or testimony. Toll v. Wilson, 135 Nev. 430, 436, 453 P.3d 1215, 1219 (2019) (“A writ of prohibition is appropriate when the relief is to ‘arrest the proceedings’ and prohibit some exercise of judicial function. NRS 34.320. The judicial function in this case is to compel Toll to reveal his sources, which Toll seeks to prohibit.”). A motion for stay pending appeal, or stay pending petition for extraordinary relief, should be made in the district court, and if denied, should be made in the Nevada Supreme Court. The Nevada Supreme Court may dissolve a contempt citation, order the issuance of a writ, or provide any other relief which it deems appropriate under the circumstances.
CompareIX. Other issues
CompareA. Newsroom searches
It appears that there are no published court decisions or statutes addressing newsroom searches.
CompareB. Separation orders
It appears that there are no published court decisions or statutes limiting the scope of separation orders issued against reporters who are both trying to cover the trial and are on a witness list. In practice before the trial courts, a few attorneys have listed reporters on witness lists and have attempted to have the reporter excluded from the courtroom. There appear to be no known cases where a motion to quash a subpoena has not been successful; thus, a reporter has not been called to testify.
CompareC. Third-party subpoenas
It does not appear that the Nevada Supreme Court has addressed the issue of whether subpoenas can be issued to third parties in an attempt to discover a reporter's source.
CompareD. The source's rights and interests
It does not appear that the Nevada Supreme Court has addressed the issue of whether sources may intervene anonymously to halt disclosure of their identities. There do not appear to be any Nevada cases addressing suits by sources concerning disclosure of their identities.
Compare