Reporter's Privilege Compendium
I. Introduction: History & Background
The New York reporter’s privilege, codified in Civil Rights Law § 79-h (the "Shield Law"), provides broad protection to reporters and publishers. As originally enacted, the statute only applied to materials or information given in confidence to the reporter. However, various amendments, some in response to judicial decisions, expanded the statute so that it now protects both confidential and nonconfidential information from disclosure.
The New York Shield Law is an outgrowth of the state's long history of protecting the freedom of the press and of providing "one of the most hospitable climates for the free exchange of ideas." In re Beach v. Shanley, 62 N.Y.2d 241, 255, 476 N.Y.S.2d 765, 773 (1984) (Wachtler, J., concurring). According to one judge, the first New York case in which a reporter refused to reveal his sources dates back to 1735, when John Peter Zenger was prosecuted for publishing articles critical of the New York colonial governor. The case resulted in an acquittal. Id. Since that time, and particularly with the growth of the publishing industry in New York in the 19th century, the privilege has been expanded to the point that it provides "broadest possible protection" to the press. O'Neill v. Oakgrove Const., Inc., 71 N.Y.2d 521, 529, 523 N.E.2d 277, 281 (1988).
New York Civil Rights Law § 79-h provides an absolute privilege from forced disclosure of materials obtained or received in confidence by a professional journalist or newscaster, including the identity of source. Beach, 62 N.Y.2d 241 (applying absolute privilege against disclosing a confidential source even though the disclosure of the materials to the reporter may itself have been a crime). The privilege applies in both criminal and civil contexts and to information passively received by a reporter.
As a result of a 1981 amendment to the Shield Law, the term "professional journalist" was expanded to include not only those working for traditional news media (newspapers, magazines, and broadcast media), but those working for any "professional medium or agency which has as one of its regular functions the processing and researching of news intended for dissemination to the public," as well. Civil Rights Law § 79-h(a)(6).
In 1988, the New York Court of Appeals, in O'Neill v. Oakgrove Construction, Inc., 71 N.Y.2d 521, 528 N.Y.S.2d 1 (1988), held that both the New York State Constitution and the First Amendment to the U.S. Constitution provide a qualified privilege from the forced disclosure of nonconfidential materials. This privilege may only be overcome by a clear and specific showing by the party seeking disclosure that the materials sought are: (a) highly material and relevant to the action; (b) critical or necessary to the maintenance of a party's claim or defense; and (c) not obtainable from any alternative source. In 1990, Civil Rights Law § 79-h was, in the wake of O'Neill, amended to incorporate this three-part test for nonconfidential news.
The Shield Law represents a formidable barrier to those who seek to compel the disclosure of information obtained by reporters in the course of their newsgathering activities. The O'Neill court, citing to the New York State Constitution and the State's early recognition of a constitutionally guaranteed free press, noted that this barrier is deliberately high:
The ability of the press freely to collect and edit news, unhampered by repeated demands for its resource materials, requires more protection than that afforded by the [CPLR]. The autonomy of the press would be jeopardized if resort to its resource materials by litigants seeking to utilize the newsgathering efforts of journalists for their private purposes were routinely permitted. Moreover, because journalists typically gather information about accidents, crimes, and other matters of special interest that often give rise to litigation, attempts to obtain evidence by subjecting the press to discovery as a nonparty would be widespread if not restricted. The practical burdens on time and resources, as well as the consequent diversion of journalistic effort and disruption of newsgathering activity, would be particularly inimical to the vigor of a free press.
O'Neill, 71 N.Y.2d at 526-27 (quashing subpoena seeking nonconfidential photographs) (citations omitted). New York courts thus afford the broadest possible protection to those engaged in "'the sensitive role of gathering and disseminating news of public events,'" and they do not hesitate to quash subpoenas issued to reporters in both criminal and civil actions. Id. at 529 (quoting In Re Beach v. Shanley, 62 N.Y.2d at 256).
There are limits to the protection afforded by New York's Shield Law, however, and, as discussed below, recent decisions indicate that some courts may be more willing to order reporters' materials produced in cases where a criminal defendant's Sixth Amendment rights are at stake.Compare
II. Authority for and source of the right
The source of the reporter’s privilege lies in the Shield Law itself (Civil Rights Law § 79-h), Article I, § 8 of the New York State Constitution and, arguably, the First Amendment to the U.S. Constitution. See O'Neill v. Oakgrove Construction, Inc., 71 N.Y.2d 521, 527-28, 528 N.Y.S.2d 1, 3 (1988) (recognizing qualified privilege for nonconfidential information under State Constitution and First Amendment); In re Beach v. Shanley, 62 N.Y.2d 241, 256, 476 N.Y.S.2d 765, 773 (1984) (Wachtler, J., concurring) (“[P]rotection from contempt for refusal to disclose a source is not merely a privilege granted to the press by the Legislature, but is essential to the type of freedom of expression traditionally expected in this State and should be recognized as a right guaranteed by the State Constitution.”); People v. Troiano, 127 Misc.2d 738, 486 N.Y.S.2d 991 (Suffolk Co. Ct. 1985) (quashing subpoena on First Amendment grounds). But see, Gonzales v. NBC, 194 F.3d 29, 36 & n.6 (noting that prior decisions have expressed differing views as to whether the reporter’s privilege is constitutionally required or rooted in federal common law, but declining to decide the issue).Compare
A. Shield law statute
New York Civil Rights Law § 79-h. Special provisions relating to persons employed by, or connected with, news media.
(a) Definitions. As used in this section, the following definitions shall apply:
(1) "Newspaper" shall mean a paper that is printed and distributed ordinarily not less frequently than once a week, and has done so for at least one year, and that contains news, articles of opinion (as editorials), features, advertising, or other matter regarded as of current interest, has a paid circulation and has been entered at United States post-office as second-class matter.
(2) "Magazine" shall mean a publication containing news which is published and distributed periodically, and has done so for at least one year, has a paid circulation and has been entered at a United States post-office as second-class matter.
(3) "News agency" shall mean a commercial organization that collects and supplies news to subscribing newspapers, magazines, periodicals and news broadcasters.
(4) "Press association" shall mean an association of newspapers and/or magazines formed to gather and distribute news to its members.
(5) "Wire service" shall mean a news agency that sends out syndicated news copy by wire to subscribing newspapers, magazines, periodicals or news broadcasters.
(6) "Professional journalist" shall mean one who, for gain or livelihood, is engaged in gathering, preparing, collecting, writing, editing, filming, taping or photographing of news intended for a newspaper, magazine, news agency, press association or wire service or other professional medium or agency which has as one of its regular functions the processing and researching of news intended for dissemination to the public; such person shall be someone performing said function either as a regular employee or as one otherwise professionally affiliated for gain or livelihood with such medium of communication.
(7) "Newscaster" shall mean a person who, for gain or livelihood, is engaged in analyzing, commenting on or broadcasting, news by radio or television transmission.
(8) "News" shall mean written, oral, pictorial, photographic, or electronically recorded information or communication concerning local, national or worldwide events or other matters of public concern or public interest or affecting the public welfare.
(b) Exemption of professional journalists and newscasters from contempt: Absolute protection for confidential news. Notwithstanding the provisions of any general or specific law to the contrary, no professional journalist or newscaster presently or having previously been employed or otherwise associated with any newspaper, magazine, news agency, press association, wire service, radio or television transmission station or network or other professional medium of communicating news or information to the public shall be adjudged in contempt by any court in connection with any civil or criminal proceeding, or by the legislature or other body having contempt powers, nor shall a grand jury seek to have a journalist or newscaster held in contempt by any court, legislature or other body having contempt powers for refusing or failing to disclose any news obtained or received in confidence or the identity of the source of any such news coming into such person's possession in the course of gathering or obtaining news for publication or to be published in a newspaper, magazine, or for broadcast by a radio or television transmission station or network or for public dissemination by any other professional medium or agency which has as one of its main functions the dissemination of news to the public, by which such person is professionally employed or otherwise associated in a news gathering capacity notwithstanding that the material or identity of a source of such material or related material gathered by a person described above performing a function described above is or is not highly relevant to a particular inquiry of government and notwithstanding that the information was not solicited by the journalist or newscaster prior to disclosure to such person.
(c) Exemption of professional journalists and newscasters from contempt: Qualified protection for nonconfidential news. Notwithstanding the provisions of any general or specific law to the contrary, no professional journalist or newscaster presently or having previously been employed or otherwise associated with any newspaper, magazine, news agency, press association, wire service, radio or television transmission station or network or other professional medium of communicating news to the public shall be adjudged in contempt by any court in connection with any civil or criminal proceeding, or by the legislature or other body having contempt powers, nor shall a grand jury seek to have a journalist or newscaster held in contempt by any court, legislature, or other body having contempt powers for refusing or failing to disclose any unpublished news obtained or prepared by a journalist or newscaster in the course of gathering or obtaining news as provided in subdivision (b) of this section, or the source of any such news, where such news was not obtained or received in confidence, unless the party seeking such news has made a clear and specific showing that the news: (i) is highly material and relevant; (ii) is critical or necessary to the maintenance of a party's claim, defense or proof of an issue material thereto; and (iii) is not obtainable from any alternative source. A court shall order disclosure only of such portion, or portions, of the news sought as to which the above-described showing has been made and shall support such order with clear and specific findings made after a hearing. The provisions of this subdivision shall not affect the availability, under appropriate circumstances, of sanctions under section thirty-one hundred twenty-six of the civil practice law and rules.
(d) Any information obtained in violation of the provisions of this section shall be inadmissible in any action or proceeding or hearing before any agency.
(e) No fine or imprisonment may be imposed against a person for any refusal to disclose information privileged by the provisions of this section.
(f) The privilege contained within this section shall apply to supervisory or employer third person or organization having authority over the person described in this section.
(g) Notwithstanding the provisions of this section, a person entitled to claim the exemption provided under subdivision (b) or (c) of this section waives such exemption if such person voluntarily discloses or consents to disclosure of the specific information sought to be disclosed to any person not otherwise entitled to claim the exemptions provided by this section.
The bill (L. 1970, c. 615, § 2) containing what became Civil Rights Law § 79-h was signed into law, effective May 12, 1970, by Governor Rockefeller. Several news publishers, broadcasters and other media organizations expressed support for the bill, including the State Reporters Association, the Association of Managing Editors, the New York Society of Newspaper Editors, the American Newspaper Publishers Association, and the Magazine Publishers Association. Columbia Broadcasting System, Inc. (CBS) submitted perhaps the most detailed comments in favor of the bill, which included its amicus brief in In the Matter of Caldwell, 311 F.Supp. 358 (N.D. Ca. 1970), a California case decided in April 1970. CBS's amicus brief included affidavits from such luminaries as Walter Cronkite, Mike Wallace, and Dan Rather. At the time, several of the bill's supporters expressed the concern that the bill was not broad enough and that reporters' resource materials, in addition to the identities of confidential sources, should be protected.
While the New York Attorney General, Louis J. Lefkowitz, had no objections to the bill, the New York Civil Liberties Union opposed it, citing its concern that a blanket privilege could "lead to instances in which the reporter, if for no other reason than his own convenience, can defeat a public or private right of access to due process." Governor's Bill Jacket, L 1970, ch. 615, p. 10.
In his memorandum approving the bill, Governor Rockefeller stated:
This "Freedom of Information Bill for Newsman" will make New York State -- the Nation's principal center of news gathering and dissemination -- the only state that clearly protects the public's right to know and the First Amendment rights of all legitimate newspapermen, reporters and television and radio broadcasters.
The bill protects journalists and newscasters from charges of contempt in any proceeding brought under State law for refusing or failing to disclose information or sources of information obtained in the course of gathering news for publication.
Freedom of the press is one of the foundations upon which our form of government is based. A representative democracy, such as ours, cannot exist unless there is a free press both willing and able to keep the public informed of all the news.
The threat to a newsman of being charged with contempt and of being imprisoned for failing to disclose his information or its sources can significantly reduce his ability to gather vital information. That this real and imminent threat has been demonstrated by the statements of several prominent reporters that valuable sources of information have been cut off because of recent attempts by the Federal government to require the disclosure of information obtained by reporters in confidence.
At the present time, fifteen states have enacted legislation extending the testimonial privilege to newsmen. This measure affords a stronger safeguard of the free channels of news communication than most existing legislation, by protecting newsmen from being compelled to disclose the information they gather, as well as the identity of their informants.
Memorandum of Governor Nelson A. Rockefeller, Governor's Bill Jacket, L 1970, ch. 615, p. 91-92.
As originally enacted in 1970, the Shield Law only protected from disclosure information obtained by a professional journalist "under the cloak of confidentiality," and it only applied to professional journalists employed by traditional media outlets, such as newspapers, magazines and broadcast media. In addition, the original statute made no mention whether grand juries were included among the "other bodies" precluded from using their contempt powers against journalists. In 1975, Civil Rights Law § 79-h was, with the support of the New York Attorney General, the New York Civil Liberties Union (reversing its former position) and others, amended to make clear that the statute prohibited grand juries from seeking to hold reporters in contempt for failing to disclose information obtained in confidence.
The 1981 Amendment
In 1981, the statute was again amended in response to judicial decisions that, in the words of one of the sponsors of the bill containing the amendments, failed "to follow the letter or even the spirit of the existing law." Memorandum of Assemblyman Steven Sanders, Governor's Bill Jacket, L 1981, ch. 468, p. 1 ("Sanders Memorandum"). This was an apparent reference to the decision in People v. LeGrand, 67 A.D.2d 446, 415 N.Y.S.2d 252 (2d Dep't 1979), in which a criminal defendant succeeded in obtaining the notes of an author who was writing an investigative book on a notorious crime family to be published by a subsidiary of Harper & Row, Inc. The LeGrand court reasoned that the Shield Law did not extend to "authors," despite the fact that the writer in question previously worked for national and local broadcasters and had written, produced and directed numerous documentary films and news broadcasts. Id. at 448. See Sanders Memorandum at 2 ("But the highly absurd situation of Mr. Smith who writes news stories for the New York Times being covered while that same Mr. Smith six months later leaving the Times and beginning work on an investigative book of non-fiction intended for sale to a Harper & Row is not covered, is corrected in this bill. Thus the new bill will protect the journalistic process wherever that process is being professionally undertaken.")
The purpose of the amendment was to fill the "gaps and loopholes not perceived and not intended in the original legislation, such inadequacies that have allowed the courts to pierce the Shield Law time after time, leaving it in a state of legal impotency, with defense attorneys engaging in frequent and increasingly popular fishing expeditions for reporters' notes, and with judges becoming ever more creative in finding limitless reasons to violate the statute and ignore the intent of the Legislature in its 1970 adoption of 79-h." Sanders Memorandum at 1. This amendment to the Shield Law, however, was not without its detractors. Despite some opposition, the bill was passed and signed into law.
The 1981 amendment broadened the definitions of the terms "news" and "professional journalist" in the statute, so that all persons "professionally engaged in a journalistic capacity" could claim its protection, including freelance journalists. Sanders Memorandum at 2. Accordingly, as of 1981, the Shield Law protects traditional, mainstream journalists and media entities, as well as those working for any "other professional medium or agency which has as one of its regular functions the processing and researching of news intended for dissemination to the public." Civil Rights Law § 79-h(a)(6), (b), (c).
The 1990 Amendment
In 1988, the New York Court of Appeals recognized a constitutional privilege, under both Article I, § 8 of the New York State Constitution and under the First Amendment, for nonconfidential information gathered by reporters. See O'Neill, 71 N.Y.2d 521 (privilege extends to nonconfidential photographs sought in a civil action). The decision in O'Neill, however, left open the question whether the qualified privilege would apply in the criminal context, and it came less than a year after the same court held that the Shield Law, as then written, did not protect from disclosure to a grand jury nonconfidential outtakes of an interview conducted of a suspect in a homicide investigation. Knight-Ridder Broadcasting, Inc. v. Greenberg, 70 N.Y.2d 151, 518 N.Y.S.2d 595 (1987). See People v. Korkala, 99 A.D.2d 161, 472 N.Y.S.2d 310 (1st Dep't 1984) (nonconfidential outtakes ordered produced for in camera inspection).
In the wake of O'Neill and Knight-Ridder, the Legislature again amended Civil Rights Law § 79-h (effective November 1, 1990) to settle conflicting interpretations of the Shield Law. The 1990 amendment extended the qualified privilege to nonconfidential information obtained by reporters in the course of newsgathering and made clear that the privilege applies in both criminal and civil proceedings. The amendment codified the three-part test enunciated in O'Neill, which provides that the qualified privilege can only be overcome by a "clear and specific" showing by the party seeking to discover a reporter's resource materials that the materials sought are: (a) highly material and relevant; (b) critical or necessary to the maintenance of a party's claim or defense; and (c) not obtainable from any alternative source.
Other changes to Civil Rights Law § 79-h included provisions requiring that an order overcoming the qualified privilege could be no broader than necessary, and the order must be supported by clear and specific findings made after a hearing. Civil Rights Law § 79-h(c). In addition, subsection (g) was also added to the statute, which provides that the privilege for both confidential and nonconfidential information may be waived by voluntary disclosure to a non-journalist of the specific information sought.
While the media supported the 1990 amendments, the New York Defenders Association, Inc. opposed extending the qualified privilege to nonconfidential news on the grounds that it conflicted with criminal defendants' Sixth Amendment rights and gave the press alone the power to decide whether and when to disclose information relevant to prosecutors and criminal defendants. Governor's Bill Jacket, L 1990, ch. 33 (pages not numbered). In order to address these concerns, the Defenders Association proposed that the privilege be limited to civil proceedings only, a position advocated by state Senator Gold and others in the floor debates over the bill. New York State Senate Debates, 1990, ch. 33 at p. 1834-35, 1849-50. However, Governor Cuomo signed the bill into law on March 23, 1990, stating:
Significantly, this qualified privilege will apply in both civil and criminal cases. Indeed, the need for protection of nonconfidential information and sources is especially strong in criminal cases where journalists are all too often drawn into the criminal justice system merely because they have reported on a crime.
In applying this standard to criminal proceedings, the bill does not override the right to a fair trial guaranteed to defendants in criminal proceedings by the United States and New York State Constitution. To the contrary, the bill strikes an appropriate balance between the principle of a free press embodied in the First Amendment and a defendant's right to a fair trial.
Memorandum of Governor Mario Cuomo filed with Assembly Bill No. 3226-B, Governor's Bill Jacket, 1990 ch. 33.Compare
B. State constitutional provision
The New York State Constitution does not contain an express Shield Law provision. However, New York courts have recognized that both the State Constitution's Article I, § 8 guarantee of a free press and the First Amendment provide at least a qualified privilege against compelled disclosure of both confidential and nonconfidential material by a reporter. In O'Neill, 71 N.Y.2d at 524, 527-28, the Court of Appeals held that both Article I, § 8 of the New York Constitution and the First Amendment "provide a reporter's privilege which extends to confidential and nonconfidential materials and which, albeit qualified, is triggered where the materials sought for disclosure -- the photographs here -- was prepared or collected in the course of newsgathering." The court further stated, "[W]e have no difficulty in concluding that the guarantee of a free press in article I, § 8 of the New York Constitution independently mandates the protection afforded by the qualified privilege to prevent undue diversion of journalistic effort and disruption of press functions." Id.
The Court of Appeals also noted that the protection afforded the press under the New York State Constitution is often broader than the minimum required by the First Amendment, stating that Article I, § 8 of the state constitution "assures, in affirmative terms, the right of our citizens to 'freely speak, write and publish' and prohibits the use of official authority which acts to 'restrain or abridge the liberty of speech or of the press'." Id. at 529 n.3 (emphasis in original).
The State Constitutional protection was also recognized in Beach, 62 N.Y.2d at 251-52, where the Court of Appeals held that the Shield Law protects journalists from compelled disclosure of their sources, even when the revelation of the information to the reporter may itself be a crime. In his concurrence in that case, Judge Wachtler noted that the protection from compelled disclosure is not merely statutory, stating: "In my view, therefore, protection from contempt for refusal to disclose a source is not merely a privilege granted to the press by the Legislature, but is essential to the type of freedom of expression traditionally expected in this State and should be recognized as a right guaranteed by the State Constitution." Id. at 256 (Wachtler, J., concurring).Compare
C. Federal constitutional provision
Even before the Shield Law was amended in 1990 to incorporate a qualified privilege for nonconfidential news, the Court of Appeals in O'Neill recognized a reporter's qualified privilege under the First Amendment and interpreted that privilege as consistent with the three-pronged balancing test articulated by the Second Circuit Court of Appeals in United States v. Burke, 700 F.2d 70 (2d Cir.1983), cert denied, 464 U.S. 816 (1983). See O'Neill, 71 N.Y.2d 521 at 527 (noting that "confidentiality or the lack thereof has little, if anything, to do with the burdens on the time and resources of the press that would inevitably result from discovery without special restrictions."). In People v. Korkala, a 1984 case which rejected the notion that the 1981 amendment to the Shield Law extended the statute to nonconfidential news, the court nevertheless recognized that "there is the qualified privilege accorded to the newsman which is founded directly upon the free speech, free press guarantees of the First Amendment," and cautioned that compelling disclosure even of a reporter's nonconfidential resource material can "have a chilling effect upon his functioning as a reporter and upon the flow of information to the general public." Korkala, 99 A.D.2d at 166-167 (1st Dep't 1984) (internal citations omitted).
However, in Gonzales v. NBC, 194 F.3d 29 (2d Cir. 1999), the Second Circuit indicated that the issue of whether the privilege is rooted in the First Amendment or federal common law is unresolved. The Gonzales court limited the holding of Burke and determined that when the materials are nonconfidential, federal law offers less protection to a journalist than the three-part test articulated in Burke, which should only be applied to confidential materials. Indeed, the Gonzales court held that the privilege for nonconfidential material is overcome if the litigant can show that the materials are of likely relevance to a significant issue in the case and are not reasonably obtainable from another reliable source. Gonzales, 194 F.3d at 36. Interestingly, while citing past second circuit authority suggesting a constitutional basis for the privilege, the Gonzales court declined to rule on whether this privilege derived from federal common law or the Constitution, indicating that the issue would have to be resolved in the event that the federal privilege were restricted or abrogated by Congressional action. Id. at n.6 (citing von Bulow by Auersperg v. von Bulow, 811 F.2d 136, 142 (2d Cir. 1987)). In that event, if the privilege were constitutionally derived, the restrictions would be struck down; if derived from federal common law, Congress could modify the privilege.Compare
D. Other sources
In Gonzales, the Second Circuit indicated that the source of the journalists' privilege may be federal common law, instead of the First Amendment--a prospect that, should Congress choose to act, would affect the federal privilege:
Previous decisions of our court have expressed differing views on whether the journalists' privilege is constitutionally required, or rooted in federal common law. Compare Baker, 470 F.2d at 781 (reasoning that "[a]bsent a federal statute to provide specific instructions, courts which must attempt to divine the contours of non-statutory federal law governing the compelled disclosure of confidential journalistic sources must rely on both judicial precedent and well-informed judgment as to the proper federal public policy to be followed in each case") with von Bulow, 811 F.2d at 142 (reasoning that "the process of newsgathering is a protected right under the First Amendment, albeit a qualified one," and that "[t]his qualified right … results in the journalist's privilege"). Until Congress legislates to modify the privilege or do away with it, however, we need not decide whether the privilege is founded in the Constitution.
Id. at n.6.
In New York Times Co. v. Gonzales, 459 F.3d 160 (2d Cir. 2006), the Second Circuit declined to offer further guidance on the source of the journalists’ privilege, stating "we see no need to add a detailed analysis of our precedents." Id. at 173.Compare
III. Scope of protection
New York has "long provided one of the most hospitable climates for the free exchange of ideas … It is consistent with that tradition for New York to provide broad protections, often broader than those provided elsewhere, to those engaged in publishing and particularly to those performing the sensitive role of gathering and disseminating news of public events." In Re Beach v. Shanley, 62 N.Y.2d 241 at 255-256, 476 N.Y.S.2d 765, 773 (1984) (Wachtler, J., concurring).
New York's Shield Law provides an absolute privilege with respect to confidential information, and a qualified privilege for nonconfidential information. The privileges apply equally in both the civil and criminal context, and in cases where the reporter is party to the litigation. However, in criminal cases, where the reporters privilege frequently conflicts with a defendant's Sixth Amendment rights, courts appear more willing to find that the privilege as to non-confidential information has been overcome. Similarly, while the Shield Law protects journalists in defamation suits in which they (or their employers') are defendants, courts will often prevent the reporter from using information withheld on the basis of the privilege in his or her defense.Compare
B. Absolute or qualified privilege
Subsection (b) of Civil Rights Law § 79-h provides an absolute privilege with respect to any information, including the identity of a source, conveyed to a reporter in confidence. The privilege applies with equal force in criminal and civil actions and in responding to grand jury subpoenas. Knight-Ridder Broadcasting, Inc. v. Greenberg, 70 N.Y.2d 151, 518 N.Y.S.2d 595 (1987) (criminal investigation); Beach, 62 N.Y.2d 241 (grand jury subpoena). See Flynn v. NYP Holdings, Inc., 235 A.D.2d 907, 652 N.Y.S.2d 833 (3d Dep't 1997) (reporters have unqualified protection from having to divulge confidential information and qualified privilege for nonconfidential information). A reporter may invoke the privilege regardless of whether he or she receives the information "passively" or receives it as a result of newsgathering efforts. See Civil Rights Law § 79-h(b), (c); In re WBAI-FM, 42 A.D.2d 5, 8, 344 N.Y.S.2d 393, 395-396 (3d Dep't 1973) (Cook, J., dissenting).
Subsection (c) of the statute provides a qualified privilege for nonconfidential news, which can only be overcome by a "clear and specific" showing by the party seeking disclosure that the material sought (i) is highly material and relevant; (ii) is critical or necessary to the maintenance of a party's claim, defense or proof of an issue material thereto; and (iii) is not obtainable from any alternative source. See, e.g., O'Neill v. Oakgrove Const., Inc., 71 N.Y.2d 521, 527 (1988). See also Section VI B, below. The privilege applies with equal force to journalists' testimony and the production of materials. See Guice-Mills v. Forbes, 12 Misc.3d 852, 819 N.Y.S.2d 432 (Sup. Ct. N.Y. Co. 2006).Compare
C. Type of case
The absolute and qualified privileges provided by the Shield Law protect journalists in civil cases. See Flynn, 235 A.D.2d 907. The party seeking disclosure from a reporter in a civil action where the reporter is not a party faces a heavy burden in attempting to overcome the privilege. However, where a reporter is a party to the action (almost invariably a defamation suit), while courts will not compel disclosure of confidential sources, they will often preclude the reporter from relying on information validly withheld on the basis of the privilege in presenting his or her defense. See, e.g., Collins v. Troy Pub. Co. Inc., 213 A.D.2d 879, 623 N.Y.S.2d 663 (3d Dep’t 1995) (defendant newspaper that moved for summary judgment in libel action by public figure could not rely on its confidential sources to establish lack of actual malice.) (See Section III H, below.) In addition, a finding of contempt (which is specifically precluded by the Shield Law) or preclusion of evidence are not the only remedies available to a trial court to punish a party for failure to disclose relevant information. For instance, a court may strike a recalcitrant party's pleadings. However, there is some authority for the proposition that to the extent that remedies, including striking of pleadings, undermine the purpose of the Shield Law and seek to coerce journalists to reveal privileged information, they should not be available. See, e.g., Oak Beach Inn Corp. v. Babylon Beacon, Inc., 62 N.Y.2d 158, 464 N.E.2d 967, 476 N.Y.S.2d 269 (1984) (trial court could not impose sanctions through the CPLR where it could not do so under the Shield Law, but the court could limit the defendants' use of the confidential information), cert denied, 469 U.S. 1158 (1985).Compare
The New York Shield Law, on its face, applies to criminal cases. Civil Rights Law § 79-h(b), (c). See Beach v. Shanley, 62 N.Y.2d at 245 ("as the statute is framed, the protection is afforded notwithstanding that the information concerns criminal activity"). In a case where the information is confidential, a criminal defendant or prosecutor cannot breach the absolute privilege of the Shield Law. See, e.g., Id. at 252 ("no matter how heinous the crime under investigation, the courts are not free to ignore the mandate of the Legislature and substitute a policy of their own" (internal citations omitted)); People v Royster, No. 5225/96, 26 Media L. Rep. 1893 (Sup. Ct. N.Y. County, Dec. 8, 1997) (unpublished) (applying absolute privilege to quash subpoena by defendant seeking all notes on interviews with police and District Attorneys' offices; defendant failed to show overriding constitutional interest); People v. Royster, 43 A.D.3d 758, 760, 842 N.Y.S.2d 12, 14 (2007) (“Defendant was not prejudiced by the court's order, made pursuant to the news media Shield Law (Civil Rights Law § 79–h), which quashed a subpoena.”)
Where the qualified privilege for nonconfidential information is at issue, a criminal defendant or prosecutor must satisfy the same three-pronged test applied to civil litigants. For example, in In re Ayala, 162 Misc. 2d 108, 616 N.Y.S.2d 575 (Sup. Ct. Queens County 1994), the court granted the motion to quash a subpoena for outtakes of interview with arresting officer on grounds that defendant did not demonstrate that the outtakes were "critical" or "necessary" to the defense. The court further rejected the defendant's demand for disclosure on Sixth Amendment grounds as a "self-motivated, but understandable, grasp for favorable evidence." Id. at 116. In Application of CBS, 232 A.D.2d 291, 648 N.Y.S.2d 443 (1st Dep't 1996), the court rejected plaintiff's argument that it was entitled to nonconfidential outtakes of CBS's undercover investigation of a pharmacist because of the quasi-criminal nature of the investigation, and held that the Shield Law applies to both civil and criminal proceedings. See, e.g., NBC v. People, 238 A.D.2d 618, 657 N.Y.S.2d 970 (2d Dep't 1997) (ordering in camera inspection of outtakes of interview with murder defendant after three-part test satisfied); People v. Griffin, 1992 WL 474518, 21 Med. L. Rptr. 1030 (Sup. Ct. N.Y. County 1992); People v. Cheche 151 Misc.2d 15, 571 N.Y.S.2d 992 (1991) (compelling testimony from reporters concerning nonconfidential interviews with criminal defendant only after three-pronged test was satisfied).
Later decisions, however, indicate that courts hearing criminal actions may be more willing to find that the qualified privilege has been overcome where it is a criminal defendant seeking the information and the privilege is in conflict with the defendant's Sixth Amendment right to a fair trial. For example, in People v. Combest, 4 N.Y.3d 341, 795 N.Y.S.2d 481 (N.Y. 2005), the Court of Appeals held that a criminal defendant satisfied the 3-part test necessary to compel the production of video recordings of his police interrogation and confession that had been recorded by a documentary film company. Indicted for murder and related charges, defendant alleged that his confession was the product of police coercion and sought from the film production company, by way of subpoena, the video footage of his confession, which he intended to introduce at trial. The court, reasoning that § 79-h does not trump a criminal defendant's fair trial rights, found that the unbroadcast footage was "critical or necessary" to defendant's case and was not obtainable from another source. The Court also noted that it was concerned with the "troubling practice of the police partnering with the media" -- suggesting that § 79-h may lose some of its protective force when the media becomes closely involved in law enforcement activities, such as pre-custodial interrogations. Similarly, in Matter of Sullivan, 167 Misc. 2d 534, 540, 635 N.Y.S.2d 437, 441 (Sup. Ct. Queens County 1995), the court denied a motion to quash a subpoena, finding that the defendant had made the clear and specific showing required by Civil Rights Law § 79-h (c). The court noted that the defendant's Sixth Amendment right to confront witnesses against him was at issue, and the reporter had chosen to be a participant in, rather than an observer of, the story (in this case by recording an interrogation). The reporter's participation, itself an "abuse of the criminal justice system [which] may encroach on the defendant's right to a fair trial,"served to lessen the protection that might otherwise preclude disclosing the subpoenaed information. Id. Likewise, in US v. Sanusi, 813 F. Supp. 149 (E.D.N.Y. 1992), a federal court, discussing the state Shield Law but applying federal law, found that newsgathering privilege was qualified by the defendant's constitutional right to fair trial and was weakened by the fact that the network trespassed on the defendant's property to film a lawful search and engaged in conduct contrary to Fourth Amendment principles. See In re Grand Jury Subpoenas to NBC, 178 Misc. 2d 1052, 683 N.Y.S.2d 708 (1998); People v. Craver, 150 Misc.2d 631, 633, 569 N.Y.S.2d 859, 860 (County Ct. Albany County 1990) (holding that testimony was unavailable elsewhere, even though the defendant had made similar statements to police and in a letter to victims' families and stating that the "value of the testimony sought outweighs the constitutionally-based privilege against disclosure.").
In People v. Hendrix, 12 Misc.3d 447, 820 N.Y.S.2d 411 (Sup. Ct. 2006), the trial court granted motions to quash subpoenas by a television network and documentary production company under the shield law. The court held that the criminal defendants did not have a right under the Sixth Amendment's Compulsory Process Clause to compel the network to produce outtakes from a television program about the charged offenses or to compel the documentary production company to produce materials pertaining to an interview conducted with the complainant, to use as possible impeachment evidence. The court explained that to establish a compulsory process violation, the defendant must show that the government prevented him from producing relevant, material, and vital evidence.
However, in In re Daily News, L.P., 31 Misc. 3d 319, 920 N.Y.S.2d 865 (Sup. Ct. 2011), the trial court held that even though the identity of a confidential source was absolutely protected from disclosure by New York’s Press Shield Law, the defendant’s rights to confront witnesses and present a defense under the Sixth Amendment Confrontation Clause and Fourteenth Amendment Due Process Clause trumped the statutory and constitutional privileges afforded the newspaper. The court explained:
The rule may be stated this way: where a criminal defendant seeks press information that (1) is highly material, (2) is critical to the defendant's claim, and (3) is not otherwise available, then the press privilege must give way in the face of the Sixth Amendment. And that is true even if the information is confidential. Notably, that test is consistent with the rule announced in O'Neill defining press protections under the New York constitution. And of course the test is the one applicable under the Press Shield Law when any party in any case, civil or criminal, seeks non-confidential press information. Constitutional requirements dictate that this standard be applied as well when a defendant in a criminal case seeks confidential information, even though in that circumstance the Press Shield Law would absolutely bar a subpoena.
Id. at 324 (emphasis in original).
This apparent trend in allowing disclosure in cases where a criminal defendant's right to a fair trial is at stake can also be seen in New York federal court decisions. Previously, the Second Circuit Court of Appeals had held that there was "no legally-principled reason for drawing a distinction between civil and criminal cases" with respect to the reporters privilege, and the three-part test for the qualified privilege applied regardless of whether the underlying case was civil or criminal in nature. United States v. Burke, 700 F.2d at 77. However, in United States v. Cutler, 6 F3d 67 (2d Cir. 1993), the court ordered the disclosure of nonconfidential materials where the subpoenaed reporter was witness to the crime (the interview itself violated a court order that the defendant not speak with the press), the material was important to the defendant in making his case, and they were unavailable elsewhere. Id. at 73-74. In Gonzales v. NBC, 194 F.3d 29 (2d Cir. 1999), the Second Circuit explained its decision in Cutler and "clarified" the current standard for overcoming privilege in criminal cases where federal law is applied: "We understand Cutler to limit Burke only as to how much of a showing was needed to overcome the privilege when the materials at issue were sought by a criminal defendant. The limitation was meant to lower the bar of the showing required of such a defendant to obtain disclosure of reporters’ materials; it resulted from our view in Cutler that Burke undervalued the needs of criminal defendants in putting on a defense." Id. at 34 & n.3. (emphasis in original).Compare
3. Grand jury
Civil Rights Law § 79-h applies, on its face, to grand jury subpoenas. See Civil Rights Law § 79-h(b), (c) ("nor shall a grand jury seek to have a journalist or newscaster held in contempt by any court"). As the Court of Appeals has stated, the constitutional provision proscribing laws which suspend or impair a grand jury's investigative power was "not intended to prevent the Legislature from creating evidentiary privileges or their equivalent that have an incidental impact on investigations." Beach, 62 N.Y.2d at 252. Accordingly, although the Shield Law "may thwart a grand jury investigation, the statute permits a reporter to retain his or her information." Id.Compare
D. Information and/or identity of source
With respect to confidential information, the Shield Law protects absolutely "any news obtained or received in confidence or the identity of the source of any such news." Civil Rights Law § 79-h(b). Similarly, the qualified privilege extends to "any unpublished news obtained or prepared by a journalist or newscaster … or the source of any such news, where such news was not obtained or received in confidence." Civil Rights Law § 79-h(c).
If a confidential source's identity is disclosed (e.g., voluntarily by the source), the information received by the reporter from the source is treated as nonconfidential, and it is protected by the qualified privilege. See People v. Lyons, 574 N.Y.S.2d 126, 129, 151 Misc.2d 718, 722 (City Ct. Buffalo 1991) (to consider a waiver by a source as a waiver of the entire privilege would have the absurd result of granting less protection to "news which was originally confidential and entitled to an absolute privilege" than is granted to "news which from the outset was never confidential," a premise which "would result in a further intrusion upon the news media"). If a journalist discloses non-confidential information otherwise protected by § 79-h to a third party, the qualified privilege is waived "with respect to the limited information shared." Guice-Mills v. Forbes, 12 Misc.3d 852, 857, 819 N.Y.S.2d 432, 436 (Sup. Ct. N.Y. Cty. 2006).Compare
E. Confidential and/or nonconfidential information
The Shield Law grants an absolute privilege with respect to news "obtained or received in confidence or the identity of the source of any such news." Civil Rights Law § 79-h(b). Notes and pre-production materials received from confidential sources are considered confidential and fall under the absolute privilege. See Sands v. News America Pub. Inc., 161 A.D.2d 30, 560 N.Y.S.2d 416 (1st Dep't 1990) (pre-production, confidential notes of author of an allegedly libelous article absolutely privileged); People v Royster, No. 5225/96, 26 Media L. Rep. 1893 (Sup. Ct. N.Y. Cty. Dec. 8, 1997) (unpublished). The reporter invoking the absolute privilege has the burden of showing that the information was gathered under an express or implied agreement of confidentiality in the course of gathering news for publication. See In re WBAI-FM, 42 A.D.2d 5, 344 N.Y.S.2d 393 (3d Dep't 1973); Hennigan v. Buffalo Courier Express Co., Inc., 85 A.D.2d 924, 446 N.Y.S.2d 767 (4th Dep't 1981); People v. Troiano, 127 Misc.2d 738, 486 N.Y.S.2d 991(1985).
The qualified privilege applies to nonconfidential, unpublished news. Civil Rights Law § 79-h(c). Outtakes of interviews of nonconfidential sources are considered to be nonconfidential news and are protected by the qualified privilege. See Ayala, 162 Misc. 2d 108; NBC v. People, 657 N.Y.S.2d 970 (2d Dep't 1997); In re CBS, Inc., 648 N.Y.S.2d 443 (1st Dep't 1996); see also United Auto Group v. Ewing, 34 Med. L. Rptr. 1801 (S.D.N.Y. 2006) (quashing subpoena seeking to compel production of a videotape containing unbroadcast outtakes of CBS news interviews, where plaintiff merely established that the videotape was "useful" as opposed to "critical or necessary"); People v. Novak, 41 Misc.3d 749, 755, 971 N.Y.S.2d 853, 857 (Sullivan Cty. Ct. 2013) (“People have indicated they ‘need’ the subject material, but have not shown the recording and notes are highly relevant and that the recording and notes are critical or necessary to the People's case or proof of a material issue. They have failed to meet the first two prongs of the test.”) Outtakes from a variety of other programs are also protected by the qualified privilege. See People v. Combest, 4 N.Y.3d 341, 795 N.Y.S.2d 481 (N.Y. 2005) (unbroadcast portions of television documentary are protected by qualified privilege, unless criminal defendant can satisfy the elements of § 79-h); People v. Hendrix, 12 Misc.3d 447, 820 N.Y.S.2d 411 (N.Y. Sup. Kings Cty. 2006) (quashing subpoena seeking outtakes from reality television show about police department where defendants conceded they could not establish the three-prong test).
Prior to the 1990 amendment to the Shield Law, outtakes and notes from interviews with nonconfidential sources were not considered privileged. See People v Korkala, 99 A.D.2d 161, 472 N.Y.S.2d 310 (1st Dep't 1984) (unpublished outtakes of conversations with criminal defendants held not confidential when defendants were paid for the interview and knew that all or part of interview would be broadcast). However, perhaps anticipating that the qualified privilege would ultimately be extended to nonconfidential news, courts were not always willing to compel production of such material, even in the absence of a privilege. In People v. Bova, 118 Misc.2d 14, 460 N.Y.S.2d 230 (Sup. Ct. Kings County 1983), the court quashed a subpoena for material obtained from a nonconfidential source on both relevance and First Amendment grounds. In another pre-1990 case, Davis v. Davis, an action for support payments, an estranged wife served a subpoena duces tecum on a newspaper, which had published letters to the editor from "Frank Davis," in an effort to obtain the address of her former husband, Frank Davis. The court determined that, absent proof that the letter writer and the ex-husband were the one and the same, "Frank Davis" would presumably consider his address to be confidential information and thus privileged. Davis v. Davis, 88 Misc.2d 1, 386 N.Y.S.2d 992 (Family Ct. Rensselaer County 1976).
Similarly, prior to the 1981 amendment to the Shield Law, information that was unsolicited by the reporter was not considered confidential and was thus not privileged. See WBAI-FM, 42 A.D.2d at 6. The Shield Law, however, was subsequently amended to make clear that the absolute privilege applies regardless of whether or not the information was solicited by the reporter. Civil Rights Law § 79-h(b) (privilege applies "notwithstanding that the information was not solicited by the journalist or newscaster prior to disclosure to such person").Compare
F. Published and/or non-published material
Once information has been published, the privilege is waived with respect only to the specific information that has been "exposed to view." See Civil Rights Law § 79-h(g); Troiano, 486 N.Y.S.2d 991, 994 ("The statute . . . cannot be used as a shield to protect that which has already been exposed to view"), quoting People v. Wolf, 39 A.D.2d 864, 333 N.Y.S.2d 299 (1st Dep't 1972). Accordingly, courts have held that the privilege does not extend to mere authentication of what has already been published. See People v. Smith, 30 Med. L. Rptr. 1671 (N.Y. Sup. Ct. Oneida Cty. 2002) (quashing subpoena seeking nonconfidential information, but permitting testimony of journalist for sole purpose of verifying certain published quotes); In re Grand Jury Subpoena Dated January 26, 2000, 269 A.D.2d 475, 703 N.Y.S.2d 230 (2d Dep't 2000) (holding that there is no basis to invoke even the qualified privilege for nonconfidential material when the information sought was only an authentication that the broadcast or published reports were accurate); In re Pennzoil Co., 108 A.D.2d 666, 485 N.Y.S.2d 533 (1st Dep't 1985).
The qualified privilege applies to all unpublished material from nonconfidential sources, but it may be overcome by a clear and specific showing that the materials are highly material and relevant, critical or necessary to the maintenance of a party's claim or defense, and not obtainable from alternative sources. Civil Rights Law § 79-h(c). See People v. Combest, 4 N.Y.3d 341, 795 N.Y.S.2d 481 (N.Y. 2005) (compelling production of video recording of defendant's confession and police interrogation, where defendant established that the tape was highly relevant, critical to his defense, and not obtainable from any other source); United Auto Group v. Ewing, 34 Med. L. Rptr. 1801 (S.D.N.Y. 2006) (outtakes must be "critical or necessary" to defense, not merely "useful").
Courts have held that such materials include: outtakes of nonconfidential broadcasts, research files used in compiling newspaper articles, corporate documents, materials and information given to a television journalist by a source, notes, records and videotapes taken at criminal interrogations, and material relating to an investigative report that never aired. See, e.g., Application to Quash Subpoenas to NBC, 79 F.3d 346 (2d Cir. 1996) (quashing subpoena for outtakes of interview with plaintiff in wrongful death suit after three-part test not met); People v. Hendrix, 12 Misc.3d 447, 820 N.Y.S.2d 411 (N.Y. Sup. Kings Cty. 2006) (quashing subpoena seeking outtakes from reality television show about police department where defendants conceded they could not establish the three-prong test contained in § 79-h); Grand Jury Subpoenas Served on NBC, 178 Misc.2d 1052 (outtakes of protest demonstration where police officers were assaulted ordered produced after three-part test met); Flynn, 235 A.D.2d 907 (research files used in compiling allegedly defamatory article); Brown & Williamson Tobacco Corp v. Wigand, 228 A.D.2d 187, 643 N.Y.S.2d 92 (1st Dep't 1996) (subpoena for documents and other materials given by defendant to a non-party television journalist quashed where plaintiff failed to meet "critical or necessary" element of test); Sullivan, 167 Misc.2d 534 (subpoena for notes, records and video concerning a criminal interrogation upheld where three-part test met); Ayala, 162 Misc.2d 108 (subpoena seeking videotaped interview with arresting officer quashed where "critical or necessary" element not met); In re Grand Jury Subpoenas to Maguire, 161 Misc.2d 960, 615 N.Y.S.2d 848 (Westchester Cty. Ct. 1994) (subpoena seeking outtakes of television interview where interviewee confessed to murder quashed where "critical or necessary" element not met); In re Armstrong, 26 Med. L. Rptr. 1700 (Sup. Ct. NY County 1997) (subpoena seeking unpublished tapes of interviews and related notes for "60 Minutes" investigation on sports cars quashed where plaintiff failed to establish that materials were otherwise unavailable).Compare
G. Reporter's personal observations
The Shield Law may protect journalists who are themselves witnesses to criminal acts. In Beach, 62 N.Y.2d 241, the Court of Appeals held that the Shield Law affords journalists protection against compulsory disclosure of sources even where the disclosure of information to the journalist might itself be a criminal act. The court analyzed the legislative history of the act and found that the Law "provides a broad protection to journalists without any qualifying language." Id. at 251. In Application of CBS, Inc., 232 A.D.2d 291, the Appellate Division held that the Shield Law is not inapplicable where the journalist actually observes criminal activity. See also Holmes v. Winter, 22 N.Y.3d 300, 316, 3 N.E.3d 694, 704 (2013) (“The District Court is understandably troubled by the violation of the restrictions it imposed on pretrial disclosure, but the New York Shield Law ‘permits a reporter to retain his or her information, even when the act of divulging the information was itself criminal conduct’”) (quoting Beach, 62 N.Y.2d at 252, 476 N.Y.S.2d 765, 465 N.E.2d 304).
Journalists should, however, be wary of partnering with law enforcement officials investigating criminal activity. As the New York Court of Appeals suggested in People v. Combest, 4 N.Y.3d 341, 795 N.Y.S.2d 481 (N.Y. 2005), journalists who go beyond mere observation of law enforcement activity may be unable to avail themselves of the protections of the shield law.
Earlier precedent offered less protection to reporter-witnesses. In People v. Dan, 41 A.D.2d 687, 342 N.Y.S.2d 731 (4th Dep't 1973) a newscaster and cameraman were questioned about events that they had personally observed. The Appellate Division held that although they had the privilege of refusing to divulge the identity of any informant who had supplied them with information, the privilege did not permit them to refuse to testify before a grand jury about events which they had personally observed, including the identity of persons observed, notwithstanding the fact that such persons may also have been sources. See People v. Dupree, 88 Misc.2d 791, 388 N.Y.S.2d 1000 (Sup. Ct. N.Y. County 1976) (privilege does not exempt reporters from being compelled to testify in a criminal trial as to what reporter personally observed).
In New York federal courts, reporters seeking the protection of the privilege for personal observations will likely run into the Gonzales test for non-confidential information: when the materials at issue are of likely relevance to a significant issue in the case and are not reasonably obtainable from other available sources, they likely can be compelled. 194 F.3d at 36. Similarly, in Cutler, the court compelled disclosure of non-confidential material when the reporter was witness to the crime, and the requested material was important to the defendant in making his case and was unavailable elsewhere. 6 F.3d at 74. However, when the requested material is merely cumulative, the three-part test for qualified privilege established in U.S. v Burke is still the rule. See Gonzales, 194 F.3d at n.3; Cutler, 6 F.3d at 73, discussing Burke, 700 F.2d at 78.Compare
H. Media as a party
Where the media is a defendant and its newsgathering is the issue, whether it be an intrusion claim or breach of contract claim brought by a source, the privilege will still apply but, to the extent that nonconfidential materials are sought, the three-part test is more likely to be met. See “Defamation actions” below. In People v. Doe, the court found no evidence that the qualified privilege of O'Neill protects a news reporter from an obligation to appear and testify before a Grand Jury when the avowed purpose of the investigation concerns the newsgathering procedures of the reporter's employer, rather than news obtained from a third party source, confidential or otherwise. In that case, a reporter covering a Department of Environmental Conservation hearing tape recorded the proceeding contrary to an order by the Administrative Law Judge. After the reporters account ran in a newspaper, a grand jury subpoenaed him in an investigation into a possibility of violation of state law. The reporter moved to quash based on the Shield Law, but the court, citing the unusual fact setting, did not apply the Shield Law, instead, balanced the competing interests of the reporter’s privilege and the government's interest in an unimpeded Grand Jury investigation, and denied the motion to quash. 148 Misc.2d 286, 560 N.Y.S.2d 177 (Sup. Ct. St. Lawrence Cty. 1990). In a federal case applying federal law, a court held that the reporter's privilege does not apply as a shield against prosecution for violation of laws of general applicability stemming from newsgathering activities. United States v. Sanders, 17 F. Supp. 2d 141 (E.D.N.Y. 1998), aff'd 211 F.3d 711 (2d Cir 2000) (affirming conviction of journalists who had received a piece of fabric unlawfully removed by a federal official from TWA flight 800); see also In re Zyprexa Injunction, No. 07 Civ. 504, 2007 WL 460838, at *8 (E.D.N.Y. Feb, 13, 2007) (castigating, but not holding liable, a New York Times reporter who, while not a party to the litigation, "conspired to obtain and publish documents in knowing violation of a court order not to do so," noting that "neither members of the media, nor of any other branch of our government, are authorized to violate court orders"); New York Times Co. v. Gonzales, 459 F.3d 160 (2d Cir. 2006) (compelling the disclosure of New York Times phone records does not violate federal common law privilege or the First Amendment, where phone records may evidence certain journalists' criminal acts and there was a compelling interest in favor of disclosure).Compare
I. Defamation actions
Both the absolute and qualified reporters privileges apply in defamation actions where the reporter or newscaster is a defendant. See. e.g., Sands, 161 A.D.2d 30; Buffalo Courier Express Co., 85 A.D.2d 924 (pre-1990 case in which the court struck only those interrogatories pertaining to information obtained under promise of confidentiality and compelled reporter to answer single interrogatory concerning information obtained without a promise of confidentiality). The three-part test of the qualified privilege is more likely to be met in defamation actions and, more often than not, media defendants will want to rely on their newsgathering to support the truth (or lack of malice in publication) of the statements in issue.
Relying on the privilege in defamation actions may, however, subject a reporter to restrictions on his or her use of the privileged information, and, in some cases, may subject the reporter to sanctions other than contempt. While Civil Rights Law § 79-h(b), (c), and (e) protect journalists from contempt, fine or imprisonment, the language of § 79-h(c), concerning nonconfidential news, explicitly states that the statute "shall not affect the availability, under appropriate circumstances, of sanctions under section  of the civil practice law and rules." While this provision only applies with respect to the qualified privilege, the Court of Appeals has determined that some restrictions, while not technically sanctions under § 3126 of the CPLR, can be applied against a reporter who invokes the absolute privilege. See Oak Beach Inn Corp. v. Babylon Beacon, Inc., 62 N.Y.2d 158, 476 N.Y.S.2d 269 (1984) (holding that defendant newspaper could not rely on material withheld as absolutely privileged under the Shield Law to establish lack of malice), cert denied, 469 U.S. 1158 (1985). Defendant are thus precluded "from using as a sword the information which they are shielding from disclosure" by invoking the reporters privilege. Collins v. Troy Pub. Co. Inc., 213 A.D.2d 879, 881, 623 N.Y.S.2d 663, 665 (3d Dep't 1995) (quoting Sands v. News Am. Pub. Inc., 161 A.D.2d 30, 37, 560 N.Y.S.2d 416, 421 (1990)) (precluding the media defendant from relying on the privileged information to establish lack of malice in defamation action). See also, Greenberg v. CBS Inc., 69 A.D.2d 693, 419 N.Y.S.2d 988 (2d Dep't 1979) (defendants, having invoked privilege, could not rely on the unnamed source to establish truth or lack of malice).
However, the relief granted to the party whose discovery is thwarted by the Shield Law should not exceed what is necessary to protect his or her legitimate interests. To the extent that remedies, including striking of pleadings, undermine the purpose of the Shield Law and seek to coerce journalists to reveal privileged information, those remedies should not be available. See Babylon Beacon, Inc., 62 N.Y.2d 158 (striking of pleadings found improper); see also Yellon v. Lambert, 29 Med. L. Rptr. 1308, 1313 (N.Y. Sup. Ct. Suffolk County 2001), aff’d 289 A.D.2d 486, 735 N.Y.S.2d 592 (2d Dep't 2001) (refusing to limit media defendant's use of confidential information as long as plaintiff had not overcome privilege by demonstrating "that he ha[d] first endeavored to obtain this information by other means, and been unsuccessful."); Sands, 161 A.D.2d 30 (allowing magazine publisher to introduce evidence relating to the withheld information only if it was produced to the plaintiff at least ten days prior to trial). Guice-Mills, 12 Misc.3d at 857, 819 N.Y.S.2d at 436 (where defendant disclosed his source to a third party, the qualified privilege was waived "with respect to the limited information shared").Compare
IV. Who is covered
In 1981, in response to decisions such as that in People v. LeGrand, 67 A.D.2d 446, 415 N.Y.S.2d 252 (2d Dep't 1979) (holding that a book author who had previously worked for numerous media organizations is not a journalist for the purposes of the Shield Law), Civil Rights Law § 79-h was amended to include not only journalists working for traditional news media, but also those working for any "professional medium or agency which has as one of its regular functions the processing and researching of news intended for dissemination to the public." Civil Rights Law § 79-h(a)(6). Under the statute, "professional journalist" is defined as one who gathers news "for gain or livelihood" intended for dissemination to the public, and includes "gathering, preparing, collecting, writing, editing, filming, taping or photographing of news." Civil Rights Law § 79-h(a)(6).Compare
A. Statutory and case law definitions
1. Traditional news gatherers
The Shield Law explicitly protects not only full-time reporters, but also freelance reporters who perform newsgathering "as a regular employee or as one otherwise professionally affiliated for gain or livelihood with such medium of communication." Civil Rights Law § 79-h(a)(6).Compare
The statute explicitly protects journalists engaged in "editing," Civil Rights Law § 79-h(a)(6), and applies to "supervisory or employer third person or organization having authority over the [professional journalist] described in this [Shield Law]." See Civil Rights Law § 79-h(f); In Re Beach v. Shanley, 62 N.Y.2d 241, 476 N.Y.S.2d 765 (1984).
In at least one case, a federal court has found that while the privilege prevented disclosure from reporters at a newspaper, it had been overcome with respect to the editors at the same paper. In Lipinski v. Skinner, 781 F. Supp. 131 (N.D.N.Y. 1991), a criminal arrestee's HIV status was allegedly illegally disclosed by jail authorities to a newspaper editor, who then passed the information to a reporter assigned to write a story concerning the arrestee. The arrestee, who later brought suit against the jail authorities for breach of the state's confidentiality requirements for HIV testing, served a subpoena on the newspaper, seeking to discern the source of the leak. The court, discussing the New York Shield Law but applying federal law, found that while the privilege prevented the arrestee from deposing various reporters who had written follow-up stories concerning him, it had been overcome with respect to the editors who had first received the information. The district court found that the three-part Burke test had been met with respect to the editors, but with respect to the reporters, the information sought was otherwise available, i.e., from the editors. However, the court limited the subpoenas to require only testimony and notes directly relating to the initial disclosure of the arrestee's HIV status. Id. at 139-40.Compare
"News" is defined as "written, oral, pictorial, photographic, or electronically recorded information or communication concerning local, national or worldwide events or other matters of public concern or public interest or affecting the public welfare." Civil Rights Law, § 79-h(a)(8). While there is very little case law interpreting this provision of the statute, at least one New York court has addressed the issue with respect to letters to the editor. See Oak Beach Inn Corp. v. Babylon Beacon, 92 A.D.2d 102, 104 (1983) (holding that a letter to the editor is "news" for the purpose of the statute and stating "many people read the letters to the editor column for the same reasons they read any other news column in the paper -- to learn what is happening around them, and the reactions of other people to these events. The beneficial purposes served by the Shield Law would be unnecessarily restricted by removing the letters to the editor column from its aegis. It is in the public interest to hold that this column comes within the purview of 'news'."); Beach v. Shanley, 62 N.Y.2d 241, 249, 465 N.E.2d 304, 308 (1984) (“[T]he official status of the source is relevant information of public interest falling within the definition of ‘news.’ For example, in another situation, it would be of great interest that an unaccredited revelation about foreign affairs came from the Secretary of State rather than a mail clerk.”); People v. Hendrix, 12 Misc.3d 447, 820 N.Y.S.2d 411 (Sup. Ct. 2006) (“Independent production company that produced documentaries used by cable television stations and its journalist were, respectively, ‘news agency’ and ‘professional journalist’ as defined by statute setting forth media privilege, and subject matter of their documentary about sexual exploitation of female minors qualified as ‘news’ under statute.”); see also People v. Marahan, 81 Misc. 2d 637, 368 N.Y.S.2d 685 (Sup. Ct. 1975) (“Testimony of newspaper reporter as to conversations he held with arresting officers and notes he made at time of coverage of story reporting arrest of defendants and seizure of weapons would concern ‘news or source of news’ within Civil Rights Law section precluding professional journalist and newscaster from being adjudged in contempt for refusing to disclose ‘news or source of news’ coming into his possession in course of gathering news for publication; thus reporter was not required to testify or to produce the notes.”)
Another court has held that a conviction for criminal mischief is a "matter of public concern or interest" and is therefore "news" protected by section § 79-h. Guice-Mills, 12 Misc.3d at 856, 819 N.Y.S.2d at 435. In Trump v. O'Brien, 403 N.J. Super. 281, 958 A.2d 85 (App. Div. 2008, the court found the author and publisher of a biographical book about an entrepreneur was protected under both New York's and New Jersey's Shield Law. The court explained “[w]ithout doubt, details of the life of Trump, whether entertainingly reported or not, constitute matters of public interest and thus ‘news’ protected by the Shield Law.” Id. at 296. The court noted, however, that “the relevant cases deciding the parameters of news in a Shield Law context are unreported” but found cases on this topic in the privacy context instructive.Compare
d. Photo journalist
Journalists engaged in "filming" and "photographing" are explicitly included in Civil Rights Law § 79-h(a)(6), which covers "pictorial" and "photographic" news. Id. at § 79-h(a)(8). This protection was applied to a photojournalist in O'Neill v. Oakgrove Construction, Inc., where the plaintiff in a civil action sought nonconfidential photographs of an accident scene. 71 N.Y.2d 521, 528 N.Y.S.2d 1 (1988).Compare
e. News organization/medium
While there are few cases in New York that specifically address what constitutes a protected news organization, the intent of the legislature in enacting the 1981 amendment to the Shield Law, which expanded the category of protected persons and entities, was "to provide broad and pervasive protection to all aspects of the process of news gathering and dissemination." Wilkins v. Kalla, 118 Misc.2d 34, 37, 459 N.Y.S.2d 985, 987 (1983). The Shield Law has been continuously interpreted broadly with respect to the types of news organizations falling under the definition provided in Civil Rights Law § 79-h(a), which includes any "professional medium or agency which has as one of its regular functions the processing and researching of news intended for dissemination to the public." However, where an organization does not engage in newsgathering with the intent to do so, it will not qualify for the privilege. Nat'l Med. Care, Inc. v. Home Medical of Am., Inc., No. 103030/02, 2002 WL 1461769 (Sup. Ct. N.Y. Cty. May 20, 2002) (referring matter to special referee to determine whether debt rating agency was a news organization under section 79-h); Am. Sav. Bank, FSB v. UBS Painewebber, Inc., No. M8-85, 2002 WL 31833223 (S.D.N.Y. Dec. 16, 2002) (credit rating agency not entitled to protection of shield law).
However, some federal courts in New York have applied the Shield Law more narrowly than state courts, holding in one instance, that the producer of a newsletter was not protected when the newsletter was circulated to only a "limited" audience, and the producer failed to establish that its "analysts" who compiled the newsletter were professional journalists. PPM America, Inc. v. Marriot Corp., 152 F.R.D. 32 (S.D.N.Y. 1993). Compare with Justice Diamond's ruling in Evans v. Schiff Publishing, Inc., No. 103562/02, (Sup. Ct. N.Y. Cty. Sept. 9, 2002) (holding that the publisher/editor of an established insurance industry newsletter was protected by the Shield Law).Compare
2. Others, including non-traditional news gatherers
Because of its broad definition of "journalist"—"one who, for gain or livelihood, is engaged in gathering, preparing, collecting, writing, editing, filming, taping or photographing of news" intended for any professional medium "which has as one of its regular functions the processing and researching of news intended for dissemination to the public"—the Shield Law encompasses a broad array of newsgatherers. As noted, Civil Rights Law § 79-h was specifically amended in 1981 to broaden the definition of "journalist" to include, among others, freelance authors. See, e.g., In re Huddy, 32 Med. L. Rptr. 1994 (Sup. Ct. N.Y. Cty. 2004) (finding that a magazine product tester qualifies as a journalist protected by the shield law).
In Murray Energy Corp. v. Reorg Research, Inc., 152 A.D.3d 445, 58 N.Y.S.3d 369 (N.Y. App. Div. 2017), the Appellate Division held that an organization that provided information about debt-distressed companies via daily e-mails was a professional medium or agency with a primary function of disseminating news to the public. The court held that the organization could therefore invoke the Shield Law and avoid having to name its sources. An energy company had sought to compel this information in order to bring breach-of-contract actions against the organization’s sources for providing confidential information. Although the organization's audience of 375 unique subscribers was relatively limited, and the organization had high subscription fees and restricted further dissemination of its content, such features were not uncommon among niche publications that focused on topics not ordinarily covered by the general news media. In addition, the court noted that the public benefited indirectly because the organization provided information on debt-distressed companies to those that were most interested in the information and could use it. Id. 446-447.
The court distinguished Fitch, which involved a credit rating agency, explaining that this organization’s editorial staff was “solely responsible for deciding what to report on” and that it did “not accept compensation for writing about specific topics or permit its subscribers to dictate the content of its reporting.” Id. at 447 (“[C]ourts have found the extent of a publication's independence and editorial control to be important in determining whether to apply the Shield Law.”).
The Second Circuit had held in In re Fitch, Inc., 330 F.3d 104, 111 (2d Cir. 2003) that a credit rating agency was not entitled to the protection of New York's Shield Law because the agency could not show "that the information . . . was gathered pursuant to the newsgathering activities of a professional journalist." Id. The Second Circuit distinguished Fitch from prior precedent affording protection to publishers of similar information by stating that "subtle differences in the facts of this case mandate a different outcome." Id. at 109. Significantly, Fitch reported only on its own clients' transactions rather than any transactions it deemed newsworthy. Such practice, the court held, "weighs against treating Fitch like a journalist." Id. Likewise, in PPM America, Inc., 152 F.R.D. 32 (1993), the analysts who compiled a newsletter with limited circulation were not protected by the Shield Law. However, certain federal courts applying a First Amendment privilege have, on occasion, held that credit rating agencies are "journalists" protected by the reporter's privilege. See, e.g., In re Pan Am Corp., 161 B.R. 577, 580-82 (S.D.N.Y. 1993).
The Second Circuit has interpreted the First Amendment journalist’s privilege (which is distinct from the Shield Law) to apply to those who intend at the inception of the newsgathering process to disseminate investigative news to the public. See von Bulow by Auersperg v. von Bulow, 811 F.2d 136 (2d Cir. 1987) (holding that a self-described author covering the infamous von Bulow trial was not a journalist because she had not intended at the inception of the newsgathering process to disseminate investigative news to the public).In some instances, federal law may provide broader protection than the Shield Law. In Blum v. Schlegel, a reporter from a student newspaper was held not protected by the Shield Law since he did not fall within the statute's definition of "professional journalist," but he was entitled to assert the privilege under federal law to avoid testifying about an interview with his school dean. Blum v. Schlegel, 150 F.R.D. 42 (W.D.N.Y. 1993).Compare
B. Whose privilege is it?
The privilege belongs to the reporter and not to the source. Accordingly, if a confidential source later waives the privilege, the material becomes nonconfidential and thus subject to the reporter's qualified privilege for nonconfidential material. Prior to the statute's 1990 amendment granting qualified privilege for nonconfidential news, the privilege was deemed waived if the source later identified himself or testified at trial and thus disclosed his identity. See Andrews v. Andreoli, 92 Misc.2d 410, 400 N.Y.S.2d 442 (Sup. Ct. Onondaga County 1977); People v. Zagarino, 97 Misc.2d 181, 411 N.Y.S.2d 494 (Sup. Ct. Kings County 1978). In People v. Lyons, however, the court held that to consider a waiver by a source as applicable to the reporter as well would result in less protection being afforded to "news which was originally confidential and entitled to an absolute privilege" than is granted to "news which from the outset was never confidential" -- a premise which "would result in a further intrusion upon the news media and would undermine the intent behind the 1990 amendment to the Shield Law." 151 Misc. 2d 718, 722, 574 N.Y.S.2d 126, 129 (City Ct. Buffalo 1991). In Lyons, one of several undercover police officers involved in a filmed sting operation agreed to waive the confidentiality afforded him. The district attorney argued that the officer's actions served to waive the reporter's privilege entirely, and that outtakes of the report were therefore discoverable. The court held that while the absolute privilege for confidential information was waived, this merely served to make the materials nonconfidential and subject to the qualified reporters privilege contained in Civil Rights Law § 79-h(c).Compare
V. Procedures for issuing and contesting subpoenas
New York Courts are bound by the New York Civil Practice Law and Rules ("CPLR"), which governs the procedures for both serving and opposing a subpoena of a party or non-party to an action. In addition, the Uniform Rules for the New York State Trial Courts ("Uniform Rules") and certain local rules may contain procedural and substantive requirements. This section focuses on the CPLR and, to a lesser extent, on the Uniform Rules. The local rules, as well as a particular judge's individual rules (many of which are available online), should be reviewed prior to responding to a subpoena.Compare
A. What subpoena server must do
1. Service of subpoena, time
With only a very few exceptions, there is no stated minimum or maximum time for the return of a subpoena. The return date is left to the individual determination of the one issuing it. See Application of Mullen, 177 Misc. 734, 31 N.Y.S.2d 710 (Queens Cty. Ct. 1941) ("[W]hoever issues it has the authority to determine in advance as to when and where the witness shall appear."). (For exceptions to this general rule see e.g., CPLR §§ 2306, 2307). If there are exigent circumstances, a subpoena may even be made returnable "forthwith." However, courts will take into account the abbreviated return date in determining whether the subpoena has been disobeyed. See Siegel, New York Practice at 618 (West Publishing, 3d Ed. 1999).
Under CPLR § 2303, a subpoena must be served "in the same manner as a summons". CPRL § 308, which governs service of a summons, provides for various forms of service.Compare
2. Deposit of security
No deposit or security is required in order to compel the attendance of a witness or the production of materials through a subpoena. However, a subpoenaed person must be paid a nominal witness fee (currently $15 per day) and a mileage fee (23 cents per mile) in advance. See CPLR §§ 2303; 8001. These fees are usually tendered when the subpoena is served, and additional fees must be paid, if the witness is required to appear on more than one day. See CPLR § 2305 (a).Compare
3. Filing of affidavit
There is no statutory or case law addressing this issue.Compare
4. Judicial approval
New York law allows for the issuance of a subpoena without prior judicial approval, except in certain limited circumstances. See CPLR § 2302. The subpoena may be issued by an array of people, including “the clerk of the court, a judge where there is no clerk, the attorney general, an attorney of record for a party to an action, an administrative proceeding or an arbitration, an arbitrator, a referee, or any member of a board, commission or committee authorized by law to hear, try or determine a matter or to do any other act, in an official capacity, in relation to which proof may be taken or the attendance of a person as a witness may be required”. Id.Compare
5. Service of police or other administrative subpoenas
There is no statutory or case law addressing this issue.Compare
B. How to Quash
Under § 2304 of the CPLR, the subject of a subpoena can move to quash, condition or modify the subpoena. Such a motion "shall be made promptly in the court in which the subpoena is returnable." CPLR § 2304. "If the subpoena is not returnable in a court, a request to withdraw or modify the subpoena shall first be made to the person who issued it and a motion to quash, fix conditions or modify may thereafter be made in the Supreme Court". Id.
CPLR 2304 does not specify the time within which a motion to quash, condition, or modify has to be made, but such a motion should be made at least before the time specified in the subpoena for compliance therewith. CPLR § 2304, McKinney's Practice Commentary C2304:3. In addition, the target of a subpoena may also move for a protective order pursuant to CPLR § 3103. Motions typically ask for both forms of relief. If time is of the essence, the motion to quash can be made by order to show cause, which serves to abbreviate the notice time.
Frequently, litigants in foreign proceedings will petition the ex parte part of the New York Supreme Court for subpoenas seeking production from a New York resident or domiciliary. See, e.g., CPLR § 3102. When this occurs, a motion to quash and/or for a protective order, which must be on notice and therefore is no longer ex parte, should be filed in the supreme court and not the ex parte part.
In addition, where New York subpoenas are issued to aid in discovery in an action pending in another jurisdiction, such as through commissions (see, e.g., CPLR § 3102 (e)), it is advisable to review both the other state’s shield law (if one exists) and the procedural requirements for issuing commissions in the jurisdiction in which the action is pending. Courts frequently rubber stamp requests for commissions to take out-of-state discovery, and such commissions occasionally do not even comply with the issuing court's procedural requirements. For instance, the shield law in the jurisdiction in which the action is pending may require that the petition for commissions pertaining to a reporter's materials or testimony be on notice or that the commissions be reviewed and signed by a judge, rather than a clerk. Failure to comply with these requirements may provide alternative bases for a motion to quash.
Ordinarily, when a foreign state issues a demand for the attendance of a New York witness under CPL 640.10(2), the New York court will not evaluate the reporters privilege under the New York Shield Law, and instead will leave the issue of journalist privilege to the demanding state. See, e.g., Codey on behalf of N.J. v. Capital Cities, Am. Broad., Corp., 626 N.E.2d 636 (N.Y. 1993) (finding subpoena by New Jersey prosecutors for ABC’s non-confidential outtakes and notes was properly issued). However, the New York Court of Appeals has recognized an exception to this rule: New York courts are permitted to quash subpoenas seeking a journalist’s testimony in another state where this would be “inconsistent with the core protection of [New York’s] Shield Law.” Holmes v. Winter, 3 N.E.3d 694 (N.Y. 2013). In Holmes, the Court of Appeals granted a journalist’s motion to quash a subpoena that sought to compel her to reveal her confidential sources in a Colorado criminal proceeding, where she could not avail herself of New York’s absolute privilege. The court found that requiring a New York journalist to comply with such a subpoena would violate New York public policy.
Since New York's Shield Law frequently provides broader protection than those of other states, it may be desirable to move to quash a subpoena under New York's Shield Law, rather than under a potentially weaker statute of another state. To obtain relief under Holmes, a party seeking to quash a subpoena under New York law will have to establish that a strong public policy is implicated and that there is a substantial likelihood that an order compelling the witness's appearance and testimony in the other jurisdiction would directly offend that policy. Id. In addition, before the exception may be invoked, the record must indicate that the prospective witness reasonably relied on the protections afforded under New York law when engaged in the conduct that gave rise to the subpoena request. Id. at 707.Compare
1. Contact other party first
Where a subpoena is not returnable in court, the subpoenaed party must contact the issuing party and request that the subpoena be withdrawn or modified prior to filing a motion. See CPLR § 2304. In addition, Rule 202.7(a) of the Uniform Rules requires that with respect to motions relating to disclosure, no motion may be served without an affidavit stating that counsel have conferred in a good faith effort to resolve the issues raised by the motion. The affirmation of good faith must state "the time, place and nature of the consultation and the issues discussed and any resolutions, or shall indicate good cause why no such conferral with counsel for opposing parties was held." Uniform Rule 202.7 (c).
"The mere recitation of a few phone calls to the other attorney without any discussion of the specific objections is insufficient to comply with Rule 202.7." Yankee Trails, Inc. v. Jardine Insurance Brokers, Inc., 145 Misc.2d 282, 283, 546 N.Y.S.2d 534, 535 (Sup. Ct. Rensselaer County 1989) (denying motion to vacate demand for bill of particulars due to failure to comply with Rule 202.7). Rather, to satisfy the requirements of Rule 202.7, "[s]ignificant, intelligent and expansive contact and negotiations must be held between counsel to resolve any dispute and such efforts must be adequately detailed in an affirmation." Eaton v. Chahal, 146 Misc.2d 977, 983, 553 N.Y.S.2d 642, 645-46 (Sup. Ct. Rensselaer County 1990). Given that New York courts expect that "discovery disputes can and should be resolved by the attorneys without the necessity of judicial intervention," the sound practice is to contact opposing counsel and make a complete record of all attempts to resolve the dispute for later inclusion in the affidavit of good faith. Id.
Above and beyond the legal requirement, such contact can result in, at a minimum, narrowing the scope of the subpoena, if not outright withdrawal. Often, the subpoenaing party is not aware of the Shield Law, and when he or she realizes what is involved, will drop the request or accept an affidavit from the reporter verifying the published information.Compare
2. Filing an objection or a notice of intent
Aside from the request to withdraw or modify the subpoena required under CPLR § 2304 and the good faith effort to resolve any disputes concerning the subpoena required by Uniform Rule 202.7, no notice of intent to file a motion to quash or for a protective order is required under New York law. A motion to quash or vacate a subpoena is the proper and exclusive vehicle to challenge the validity of the subpoena or the jurisdiction of the issuing authority. See Matter of Brunswick Hospital Center, Inc. v. Hynes, 52 N.Y.2d 333, 438 N.Y.S.2d 253 (1981). A particular judge's rules should, however, be consulted.Compare
3. File a motion to quash
a. Which court?
The motion to quash or for a protective order should be brought in the same court in which the subpoena is returnable, which is usually the court hearing the case. CPLR § 2304. If the subpoena has not issued out of a court, the motion to quash or modify is made to the Supreme Court. See CPLR § 2304, McKinney's Practice Commentary C2304:4. If the subpoena was issued from the ex parte part (e.g., in aid of disclosure in an out-of-state proceeding), the motion should be filed in the Supreme Court and not the ex parte part.Compare
b. Motion to compel
The target of a judicial subpoena should move to quash and/or for a protective order before the return date of the subpoena or risk a finding of contempt for failure to appear. See CPLR § 2308 (a). For non-judicial subpoenas, such as those issued in an out-of-court proceeding such as an arbitration or in an administrative hearing, the reporter "cannot be held in contempt for failure to comply unless and until a court has issued an order compelling compliance, which order has been disobeyed. Reuters Ltd. v. Dow Jones Telerate, Inc., 231 A.D.2d 337, 341, 662 N.Y.S.2d 450, 453 (1st Dep't 1997).Compare
The CPLR specifies only that a motion to quash, fix conditions or modify a subpoena "shall be made promptly," without further explanation as to what is meant by "promptly." However, the practice commentaries to the statute advise that such a motion should be made at least at or before the time specified in the subpoena for compliance therewith. CPLR § 2304, McKinney's Practice Commentary C2304:3. In Santangello v. People, 38 N.Y.2d 536, 539, 344 N.E.2d 404, 405–06, the New York Court of Appeals explained that a “motion to quash ... should be made prior to the return date, thereby requiring such timeliness that substantial delay in the proceedings is unlikely.” See People v. Burnette, 160 Misc.2d 1005, 612 N.Y.S.2d 774 (1994) (police department waived objection to subpoena where department failed to object prior to return date).
Where the requisite notice for a motion to quash or for a protective order cannot be given, such as where the subpoena calls for compliance "forthwith," the motion may be brought on an order to show cause, which will abbreviate the notice time. CPLR § 2214 (d) ("The court in a proper case may grant an order to show cause, to be served in lieu of a notice of motion, at a time and in a manner specified therein.") If the subpoena seeks deposition testimony, it is probably safe to file the motion giving the eight days’ notice required by CPLR § 2214 (b) and notifying opposing counsel in writing that in light of the motion, the subpoenaed reporter will not appear for the deposition. In addition, service of a notice of motion for a protective order will also serve to "suspend disclosure of the particular matter in dispute." CPLR § 3103 (b).Compare
While there is no "stock language" or preferred text to be included in a motion to quash or for a protective order, a uniform notice of motion can be found within the text of Uniform Rule 202.7.Compare
e. Additional material
A motion to quash or for a protective order should include a notice of motion, supporting affidavits, a memorandum of law and an affirmation of good faith effort to resolve the issues raised by the motion. See Uniform Rule 202.7(a). No notice of motion is required for an order to show cause, though the affirmation of good faith must still be included. See Uniform Rule 202.7(d). In addition, New York State courts require that a "blue back," a blue form containing the case caption, index number and other pertinent information, be attached to the back of the papers filed with the court. Although not required, it may also be advisable to append a draft order for the court to sign, which states that the relief the reporter is seeking has been granted. This not only saves the court the trouble of drafting an order, but it also allows the reporter to control (at least initially) the language of the order.Compare
4. In camera review
No statute mandates that the court conduct an in camera review of the requested materials in order to determine whether or not they should be produced. However, courts have on occasion conducted in camera reviews to determine if the materials were provided to the reporter in confidence or if the materials are necessary to the defense or prosecution of an action. See, e.g., Hybrid Films v. Combest, 281 A.D.2d 500, 721 N.Y.S.2d 795 (2d Dep't 2001) (ordering in camera review of outtakes for purposes of redacting irrelevant material, provided criminal defendant first met three-part test for producing nonconfidential information); People v. Combest, 4 N.Y.3d at 349 n.4, 795 N.Y.S.2d at 486 n.4 (noting that while a court is not always required to review subpoenaed material in camera in order to determine in the first instance whether the requisite showing under § 79-h has been made, "it would have been the better practice to do so"); Knight-Ridder Broadcasting, Inc. v. Greenberg, 119 A.D.2d 68, 505 N.Y.S.2d 368 (3d Dep't 1986) (ordering trial court to conduct in camera review of outtakes of interview of murder suspect); modified on other grounds, 70 N.Y.2d 151, 518 N.Y.S.2d 595 (1987); People v. Korkala, 121 Misc.2d 291, 467 N.Y.S.2d 517 (ordering in camera inspection to determine "whether there exists any necessity for [the materials] being made available to the People in respect to any defense proffered" by a criminal defendant). But see Flynn v. NYP Holdings, Inc., 235 A.D.2d 907, 652 N.Y.S.2d 833 (3d Dep't 1997) (trial court properly denied request for in camera review where party seeking disclosure failed to overcome qualified privilege); Doe v. Cummings, 1994 WL 315640, 22 Media L. Rep. 1510 (Sup. Ct. St. Lawrence County 1994) (refusing request for in camera review and noting that People v. Korkala, supra, was decided prior to the 1990 amendment to the Shield Law, which brought nonconfidential information under the protection of the statute).Compare
b. Consequences of consent
Although there is no New York case law directly addressing the issue, the consent to an in camera review of the materials does not appear to act as a waiver of the privilege. See People v. Lyons, 151 Misc.2d 718, 574 N.Y.S.2d 126 (City Ct. Buffalo 1991).Compare
c. Consequences of refusing
No New York statute or case law specifically addresses the consequences of refusing to allow an in camera review of subpoenaed material. However, refusal to abide by a court's order to produce materials for such a review would probably result in the entry of a contempt finding. The better practice is to file an appeal of the order to produce and request that enforcement of the order be stayed pursuant to CPLR § 5519 (c).Compare
5. Briefing schedule
Pursuant to CPLR § 2214 (b), a notice of motion (whether to quash, for a protective order or both) and supporting affidavits must be served at least eight days before the time at which the motion is to be heard, and answering affidavits must be served at least two days prior to the return date. However, if the notice of motion is served at least twelve days prior to the return date, answering papers are due at least seven days before that date. Id. If the motion to quash is served the requisite twelve or more days prior to the return date, it is advisable for the moving party to refer to CPLR § 2214 (b) in the notice of motion, and to request specifically that the answering papers be served by hand at least seven days prior to the return date (e.g., "PLEASE TAKE FURTHER NOTICE that, pursuant to CPLR § 2214 (b), demand is made that opposition papers, if any, be served by hand upon the undersigned counsel at least seven days before the return date of this motion."). Failure to request service by hand may result in the answering papers -- though timely served -- arriving by mail on the eve of the return date. The extra time afforded by CPLR § 2214 (b) can be used to draft any reply papers, which are due one day before the return date. CPLR § 2214 (b).
Should an appeal become necessary, it is advisable to review Articles 55-57 of the CPLR and the applicable rules for the appellate department (or other appellate court) in which the appeal will be taken, as the schedule for an appeal will vary substantially from the briefing schedule for the initial motion.Compare
6. Amicus briefs
Amicus briefs are not typically filed at the trial court level, but they are accepted in matters pending before the appellate division courts and the New York Court of Appeals. Amicus curiae status may be sought by motion at the discretion of the appellate court. The New York Court of Appeals is the only appellate court to promulgate a rule specifying the criteria for granting a motion for leave to file an amicus brief. See 22 NYCRR § 500.11(e). In addition, only the second department has a court rule concerning how to seek leave to file an amicus brief. See 22 NYCRR § 670.11. The Reporters Committee files amicus briefs on behalf of media coalitions in press freedom cases. You can contact the Reporters Committee to seek amicus support at 1-800-336-4243.Compare
VI. Substantive law on contesting subpoenas
A. Burden, standard of proof
The reporter or publisher has the burden of proving the essential elements of the privileged relationship: "the intent [of the reporter] to use material -- sought, gathered, or received -- to disseminate information to the public and that such intent existed at the inception of the newsgathering process." In the Matter of Application of Waldholz, 1996 WL 389261, *2 (S.D.N.Y. 1996), citing von Bulow by Auersperg v. von Bulow, 811 F.2d 136, 144 (2d Cir. 1987). "To invoke the [absolute] privilege, the journalist carries the burden of proffering at least preponderant evidence of mutuality of the understanding, or agreement, of confidentiality. He may do so by direct or indirect evidence, by presenting proof of an express, i.e., a verbalized, understanding or agreement, or by offering preponderant proof of circumstances from which a mutual agreement of confidentiality may be implied." Andrews v. Andreoli, 92 Misc.2d 410, 418, 400 N.Y.S.2d 442, 447 (Sup. Ct. Onondaga County 1977). See PPM America, Inc. v. Marriott Corp., 152 F.R.D. 32, 36 (S.D.N.Y. 1996) (applying federal law).
If the information is not confidential and thus protected by the qualified privilege, the party seeking disclosure has the burden of making a "clear and specific showing" that the information or sources are highly relevant and material, critical or necessary, and not obtainable from any alternative source. In re Application of CBS, 232 A.D. 2d 291,292, 648 N.Y.S.2d 443 (1st Dep't 1996). See Matter of Subpoena to ABC, Inc., 189 Misc.2d 805, 735 N.Y.S.2d 919 (Sup. Ct. N.Y. County 2001); Greenfield v. Schultz, 173 Misc.2d 31, 660 N.Y.S.2d 624 (Sup. Ct. N.Y. County 1997), aff'd in part, modified in part on other grounds, vacated in part on other grounds, 251 A.D.2d 67, 673 N.Y.S.2d 684 (1st Dep't 1998)
The three-part test which must be met to overcome a qualified privilege for nonconfidential information is not satisfied absent clear and specific proof that the claim for which the information is requested "virtually rises or falls with admission or exclusion of the proffered evidence." In Re. Application to quash Subpoena to NBC, 79 F.3d 346, 351 (2d Cir 1996) (applying New York Shield Law). The test is not merely whether the material may be helpful or probative, but whether "the action may be presented without it." Id. See Flynn v. NYP Holdings, Inc., 235 A.D.2d 907, 652 N.Y.S.2d 833 (3d Dep't 1997); In Re Grand Jury Subpoena to Maguire, 161 Misc.2d 960, 965, 615 N.Y.S.2d 848, 851 (1994); In re Grand Jury Subpoenas Served on NBC, 178 Misc.2d 1052, 683 N.Y.S.2d 708 (1998); United Auto Group v. Ewing, 34 Med. L. Rptr. 1801 (S.D.N.Y. 2006). The privilege may only yield when the "party seeking the material can define the specific issue, other than general credibility, as to which the sought after interview provides truly necessary proof." Matter of Subpoena to ABC, 189 Misc.2d at 808.Compare
As discussed above, the Shield Law provides absolute privilege for confidential material. Therefore the elements below are relevant only when the subpoena seeks nonconfidential information. To overcome the qualified privilege, the party seeking such news must make "a clear and specific showing that the news: (i) is highly material and relevant; (ii) is critical or necessary to the maintenance of a party's claim, defense or proof of an issue material thereto; and (iii) is not obtainable from any alternative source." Civil Rights Law § 79-h(c).
A federal court sitting in diversity will apply the New York Shield Law. United Auto Group v. Ewing, 34 Med. L. Rptr. 1801 (S.D.N.Y. 2006); Don King Productions Inc. v. Douglas, 131 F.R.D. 421, 422 (1990). However, when federal law is applied in federal criminal cases or in civil cases where jurisdiction in federal court arises under federal law, the privilege will be overcome for nonconfidential materials on a showing that the materials are of "likely relevance to a significant issue in the case," and are "not reasonably obtainable from other available sources." Gonzales v NBC, 194 F.3d 29, 36 (2d Cir. 1999) (applying federal law). When the material is confidential, the three part test of Burke (identical to the Shield Law's provision for nonconfidential information) applies. See also New York Times Co. v. Gonzales, 459 F.3d 160 (2d Cir. 2006) (federal common law privilege overcome where there was a compelling interest in favor of disclosure of newspaper’s telephone records).Compare
1. Relevance of material to case at bar
The first and second prongs of the test applied to nonconfidential news, that the materials sought must be "highly material and relevant" and "critical or necessary" to the action, are really two sides of the same coin in that materials that are "critical or necessary" to the action will, in all likelihood, also be "highly material or relevant." However, satisfying the first prong of the test (which appears to be the easiest of the three to meet) will not necessarily satisfy the second. To satisfy the "critical or necessary" requirement, the materials sought must be more than merely useful to the party seeking them. Rather, the party seeking production must convince the court that a claim virtually rises or falls with the admission or exclusion of the proffered evidence and that the defense or prosecution of the action may not be presented without it. See Flynn., 235 A.D.2d 907; Application to Quash Subpoena to NBC, 79 F.3d 346; U.S. v. Marcos, 1990 WL 74521, 17 Media Law Rep. 2005 (S.D.N.Y. 1990); Doe v. Cummings, 1994 WL 315640 *1, 22 Med. L. Rep. 1510 (1994) (holding that material's usefulness for cross-examination does not satisfy burden); In re Investigation into Death of John Doe, 34 Med. L. Rptr. 1057, 1059 (Sup. Ct. Suffolk Cty. 2004) ("It has been said that the test is not merely that the material may be helpful or probative, but whether or not the case may be presented without it"). Even where certain testimony is highly material and relevant to an issue in the case, it is not "critical" if it is merely cumulative or if the party seeking the testimony alleges only a vague need for impeachment material. People v. Troiano, 127 Misc.2d 738, 486 N.Y.S.2d 991 (City Ct. Suffolk County 1985). Merely invoking the "critical or necessary" language without any support or analysis is insufficient to overcome the privilege. Flynn, 235 A.D. 2d 907. Some cases illustrating the difficulty in overcoming the "critical or necessary" element of the test are discussed below.
In In re Brown & Williamson v. Wigand, plaintiff sought outtakes and unpublished information concerning a "60 Minutes" interview of Jeffrey Wigand in a Kentucky action against him for breach of confidentiality agreements he entered into with B&W. The court held that while the requested materials were "highly material and relevant," B&W had not established that the materials were "critical or necessary" to its case, since it already had "ample proof" of Wigand's breach of the confidentiality agreements in the publicly available tapes of the interview broadcast by CBS. Allegations that the documents were needed to establish the full measure of damages incurred by the breach were deemed too vague to satisfy the statute's requirements. In re Brown & Williamson v. Wigand, 228 A.D.2d 187, 643 N.Y.S.2d 92 (1st Dep't 1996).
Similarly, mere speculation that the requested information is critical and necessary, without factual corroboration, is insufficient to establish criticality. In re Subpoena to Ayala, 162 Misc.2d 108, 616 N.Y.S.2d 575 (1994). In Ayala, a criminal defendant overheard part of an interview between a reporter and the arresting officer, a portion of which was broadcast. The defendant sought outtakes from the interview, which he believed would go to the issue of probable cause in his defense. The court held that while the outtakes were highly relevant and material, and unavailable elsewhere, the defendant's speculation that the tape may be the most reliable version of events and may prove inconsistencies in the officer's testimony did not satisfy the stringent requirement that the material must be critical or necessary. Id. at 114. Likewise, in United Auto Group v. Ewing, 34 Med. L. Rptr. 1801, 1803 (S.D.N.Y. 2006) the court quashed a subpoena seeking video out-takes from a CBS news interview where plaintiff professed that the out-takes "may" strengthen its claims and "may" provide an independent basis for one of its claims. The "highly material" and "critical or necessary" prongs of the test were not satisfied, the court held, because plaintiff's statements essentially conceded that it can prove its case without the outtakes.
In People v. Griffin, 21 Med. L. Rep 1030 (Sup. Ct. N.Y. County 1992), the defendant sought a videotape and testimony from a reporter who had accompanied police on an operation in a Times Square subway station, arguing that the video would show "confusion in the subway" at the time of the defendant's arrest and would likely bolster his claim that the wrong person was arrested. The court quashed the subpoenas, holding that the defendant could not make a "clear and specific showing" that the material was highly material and relevant and critical and necessary to the maintenance of the defense, given that the video would not prove or disprove who committed the crime and given that there was no claim that the incident itself was caught on tape or witnessed by the reporter.Compare
2. Material unavailable from other sources
The final prong of the test for nonprivileged news requires that the party seeking disclosure make a clear and specific showing that the requested materials are "not obtainable from any alternative source." Civil Rights Law § 79-h(c). This provision of the statute frequently is the most difficult hurdle for a party seeking disclosure to overcome, and courts have held that disclosure from a reporter may only be permitted as a "last resort." See In re Grand Jury Subpoenas Served on National Broadcasting Co., Inc., 178 Misc.2d 1052, 1055, 683 N.Y.S.2d 708, 711 (Supreme Ct. N.Y. County 1998).
Where alternative sources for the information exist, disclosure may not be had. Witnesses, and in some circumstances the opposing party, are alternative sources whose testimony must be sought before a journalist's testimony or resource materials will be compelled. See Application of CBS Inc., 232 A.D.2d 291, 292, 648 N.Y.S.2d 443, 444 (1st Dep't 1996) ("Plainly, [plaintiff] made no efforts to identify the potential witnesses who were in the pharmacy on the date in question, nor made any other investigative efforts to obtain evidence to substantiate the anticipated professional misconduct charges against the pharmacist."). Similarly, the trial court in Brown & Williamson v. Wigand held that Mr. Wigand was himself an alternative source for the information sought by his former employer and rejected Brown & Williamson's allegations that Wigand was untrustworthy and therefore not a reliable source as "yet untried and unproven." 24 Med. L. Rep. 1720, 1724, 1996 WL 350827, *5 (Sup. Ct. N.Y. County 1996). There, the court held that to disqualify the defendant as an unqualified alternative available source would "vitiate the three-prong test of 79-h (c) since all that would be required to defeat the journalist's protection would be to allege, without more, that the alternative non-journalistic source is dishonest." Id.
In a class action seeking relief for alleged sales of residential property to African-American plaintiffs at higher prices and under more burdensome terms than would have been charged to white purchasers, the court refused to compel a non-party journalist to reveal sources for an article on the subject where the article itself and the pictures therein provided leads to obtaining discovery and where information concerning potential witnesses could also be obtained from title and mortgage records. Baker v. F and F Investment, 470 F.2d 778 (2d Cir. 1972), (applying Federal law as informed by the New York and Illinois Shield Laws), cert denied, 411 U.S. 966 (1973).
However, courts have found that certain sources do not count as "available" for the purposes of meeting the requirements of the three-part test for nonconfidential news. See Grand Jury Subpoenas to NBC, 178 Misc.2d 1052 (holding that outtakes were critical to an assault case and that it was not reasonable that prosecutors first interview numerous police officers present at the time of the assault to attempt to locate eyewitnesses); People v. Combest, 4 N.Y.3d 341, 795 N.Y.S.2d 481 (N.Y. 2005) (finding that each of the three prongs were satisfied where video outtake was only recording of criminal defendant's interrogation and confession); Matter of Sullivan, 167 Misc. 2d 534, 635 N.Y.S.2d 437 (Sup. Ct. Queens County 1995) (the fact that all other witnesses to the interrogation gave conflicting testimony satisfied the "no alternative source" element necessary to deny motion to quash subpoena duces tecum); In re Ayala, 162 Misc.2d 108 (neither arrestee nor arresting officer were alternative sources preventing disclosure of the contents of a journalist's videotaped interview with the arresting officer even though the arrestee overheard part of the interview, since videotape was inherently superior to the memories of the arrestee and arresting officer; subpoena quashed for failure meet "critical or necessary" element); People v. Craver, 150 Misc.2d 631, 569 N.Y.S.2d 859 (1990) (reporter's testimony could be compelled in murder case even though the defendant had also given statements to the police and made admissions by letter to the victim's parents).Compare
a. How exhaustive must search be?
While courts have not delineated a clear standard for proving "exhaustion," merely asserting that a search has been done will not suffice. The party seeking disclosure "has an obligation to demonstrate that it has first endeavored to obtain this information by other means instead of directly intruding upon the self-imposed confidentiality of those who gather news." Greenleigh Associates, Inc. v. New York Post Corp., 79 A.D.2d 588, 434 N.Y.S.2d 388, 389 (1st Dep't 1980) (citing Silkwood v. Kerr McGee Corp., 563 F.2d 433 (10th Cir 1977); see also, Yellon v. Lambert, 29 Med. L. Rptr. 1308, 1313, affirmed, 289 A.D.2d 486, 735 N.Y.S.2d 594 (2d Dep't 2001) (plaintiff "has an obligation to demonstrate that he has first endeavored to obtain this information by other means, and has been unsuccessful"); Application of CBS, 232 A.D.2d 291; Flynn, 652 N.Y.S.2d at 835 (quashing subpoena in part because plaintiff "has not detailed any efforts made to obtain the requested documents or the information contained therein," and had thus not satisfied the third prong of the test).Compare
b. What proof of search does a subpoenaing party need to make?
See "How Exhaustive must search be?" above.Compare
c. Source is an eyewitness to a crime
There is no statutory or case law addressing this issue.Compare
3. Balancing of interests
The qualified privilege allows disclosure only "as a last resort." See In re Grand Jury Subpoenas Served on National Broadcasting Co., Inc., 178 Misc.2d 1052, 1055, 683 N.Y.S.2d 708, 711. The Shield Law strikes a balance "between the urgent requirements of litigants in both civil and criminal courts, and the countervailing need to prevent the undue diversion of journalistic effort and disruption of press functions, to maintain the tradition in this state of providing the broadest possible protection to secure the sensitive role of gathering and disseminating news of public events and to assure particular vigilance by the courts if this state in safeguarding the free press against undue interference." Matter of Subpoena to ABC, 735 N.Y.S.2d 919, 921-22 (emphasis in original) (internal citations omitted).
In some cases, a court will, usually in dicta, discuss the defendant's Sixth Amendment rights as a counterweight to the Shield Law or the First Amendment. However, the subpoena must satisfy the three-pronged test of the Shield Law -- requiring that the information be highly material and relevant, necessary or critical to maintenance of the claim, and not obtainable from other available sources. If the Sixth Amendment right is a factor, it is incorporated into that test. See People v. Troiano, 486 N.Y.S.2d 991; Sullivan, 167 Misc.2d at 539 (finding that "under appropriate circumstances, a reporter's privilege may yield to the defendant's Sixth Amendment rights" and applying three-part test to determine if the circumstances were met); People v. Combest, 4 N.Y.3d at 347, 795 N.Y.S.2d at 485 ("Because in this case we conclude that defendant met his burden under the Shield Law, we need not decide what standard is constitutionally required in order to overcome a criminal defendant's substantial right to obtain relevant evidence."). See also Gonzales, 194 F.3d at 34 & n.3 (noting that the Second Circuit's decision in Cutler, supra limited the holding of Burke, supra, and stating "We understand Cutler to limit Burke only as to how much of a showing was needed to overcome the privilege when the materials at issue were sought by a criminal defendant. The limitation was meant to lower the bar of the showing required of such a defendant to obtain disclosure of reporters' materials; it resulted from our view in Cutler that Burke had undervalued the needs of criminal defendants in putting on a defense.") (emphasis in original).Compare
4. Subpoena not overbroad or unduly burdensome
Any subpoena duces tecum in New York must pass the threshold requirement that the material sought be relevant and material to facts at issue in a pending judicial proceeding. Valdez v. Sharaby, 258 A.D.2d 458, 684 N.Y.S.2d 585 (2d Dep't 1999). As one court expressed,
In order to require production [of documents and things] prior to trial, the moving party must show that 1) the materials are relevant and evidentiary; 2) the request is specific; 3) the materials are not otherwise procurable reasonably in advance of trial by the exercise of due diligence; 4) the party cannot properly prepare for trial without such production and inspection in advance of trial and the failure to obtain such inspection may tend unreasonably to delay the trial; and 5) the application is made in good faith and is not intended as a general 'fishing expedition'.
People v. Price, 100 Misc.2d 372, 379, 419 N.Y.S.2d 415, 420 (1979). Put in another way, the subpoena duces tecum may not be used to "fish" for impeaching material. People v. Bova, 118 Misc.2d 14, 460 N.Y.S.2d 230 (Sup. Ct. Kings County 1983).
While any subpoena can be quashed for being overbroad, see, e.g. West 16th Realty Co. v. Ali, 176 Misc.2d 978, 676 N.Y.S.2d 401 (Civ. Ct. N.Y. County 1998), this rarely occurs when the request bears a reasonable relation to the subject matter and is supported by factual basis. Requests to journalists usually seek notes or outtakes from a specific or discrete number of published articles or broadcasts. Such targeted subpoenas are unlikely to be deemed overbroad, and even less so when the requestor anticipates being challenged under the much stricter Shield Law requirements.
In cases where the Shield Law is invoked, therefore, the threshold requirements are touched on only generally. See, e.g., Bova, 118 Misc.2d 14 (subpoena may not be used for "fishing"). The Shield Law requirements, that the material must be (i) highly material and relevant, (ii) critical or necessary to the maintenance of a party's claim, defense, or proof of an issue material thereto, and (iii) not obtainable from any other source, creates such a high burden that it virtually ensures that any subpoena passing the Shield Law test has, by definition, passed the much less rigorous test of People v. Price, supra, applicable to subpoenas generally.Compare
5. Threat to human life
There is no statutory or case law addressing this issue.Compare
6. Material is not cumulative
If the subpoenaed material or testimony is merely cumulative, it "cannot be credibly urged that the proffered evidence is necessary or critical." U.S. v. Marcos, 17 Med. L. Rep. 2005, 1990 WL 74521, *4 (S.D.N.Y. 1990). See also U.S. v Burke, 700 F.2d 70, 78 (2d Cir.), cert. denied, 464 U.S. 816 (1983). Accordingly, the Shield Law protects such material from disclosure.Compare
7. Civil/criminal rules of procedure
As a general matter, any subpoena can be contested by motion to quash under § 2304 of the New York CPLR. Where a subpoena is "palpably overbroad," the court will not "prune the request to cull the good from the bad," but instead may simply grant the motion to quash in its entirety, though the court retains discretion to engage in such "culling." West 16th Realty Co., 676 N.Y.S.2d at 403. This general rule applies equally to subpoenas issued to reporters and is an alternative basis for a motion to quash.
CPLR § 3103(a) grants the court power to fashion a protective order on its own initiative or by motion of any party or person "denying, limiting, conditioning or regulating the use of any disclosure device. Such order shall be designed to prevent unreasonable annoyance, expense, embarrassment, disadvantage or other prejudice to any person or the courts."Compare
8. Other elements
There are no other elements that are considered.Compare
C. Waiver or limits to testimony
1. Is the privilege waivable?
Under Civil Rights Law § 79-h(g),
A person entitled to claim the exemption provided under subdivision (b) or (c) of this section waives such exemption of such person voluntarily discloses or consents to the disclosure of the specific information sought to be disclosed to any person not otherwise entitled to claim the exemptions provided by this section.
Waiver is limited to only the particular information disclosed, and only when the person to whom the information is disclosed is not otherwise entitled to claim the privilege. For example, publication of a source's identity does not grant a waiver of privilege as it relates to information gleaned from that source. Furthermore, disclosure to another reporter or editor in the news organization is not deemed disclosure for the purposes of waiver. See Simpson v. Schneiderman, 21 Med. L. Rptr 1542 (Sup. Ct. Kings County 1973); Matter of Mark Peterson, NYLJ Oct 29, 1996 at 26 Col.4 (journalist privilege deemed waived by disclosure to someone other than journalist or editor); Wigand, 24 Med. L. Rep. 1720; People v Wolf, 69 Misc.2d 256, 261, 329 N.Y.S.2d 291, 297, aff'd, 39 A.D.2d 864, 333 N.Y.S.2d 299 (1st Dep't 1972) (waiver applies to statements made by the informer which are actually published or publicly disclosed).
Disclosure to third parties who cannot claim the privilege will be considered a waiver only of the disclosed information. Matter of Dan, 80 Misc.2d 399, 363 N.Y.S.2d 493 (Sup. Ct. Erie County 1975) (privilege was waived when Dan gave statement about the events he observed during the Attica prison riots to Special Assistant Attorney General, gave a statement to the McKay Commission which were published, and answered questions before the grand jury, which were also published); See Guice-Mills v. Forbes, 12 Misc.3d at 857, 819 N.Y.S.2d at 436 (defendant who disclosed name of source to third party waived the privilege, but solely "with respect to the limited information shared").
Once the material has been published, the privilege as it relates to the published material is deemed waived, since "[t]he statute … cannot be used as a shield to protect that which has already been exposed to view." Troiano, 486 N.Y.S.2d 991 at 994, quoting Wolf, 39 A.D.2d 864. See In the Matter of Grand Jury Subpoena Dated January 26, 2000, 269 A.D.2d 475, 703 N.Y.S.2d 230 (2d Dep't 2000); People v. Craver, 569 N.Y.S.2d 859; In re Grand Jury Subpoena Dated January 26, 2000, 269 A.D.2d 477, 711 N.Y.S.2d 888 (2d Dep't 2000) (since material in question had been broadcast or published, the privilege did not protect newscasters from testifying with respect to limited questions concerning the accuracy of statements contained in the broadcast).
At least one court has held that even where the information has been "leaked" and subsequently disclosed, the waiver applies only to the leaked information. In Brown & Williamson v. Wigand, supra, the plaintiff tobacco company argued that a leak of portions of the transcript of a "60 Minutes" interview to the Daily News acted as a blanket waiver of all unpublished material related to the interview. Brown & Williamson, 24 Med. L. Rep. at 1721. The court rejected plaintiff's argument, stating that under plaintiff's interpretation a "specific but limited disclosure would become the launching pad for a massive, unlimited and unspecified foray into matters undisclosed but related to the disclosed information" which would "fly in the face of the purpose of the shield law." The Brown & Williamson court held that "even if, arguendo, CBS did authorize the leak to the Daily News, CBS waived its protection only to what was published by that newspaper, and the limited disclosure in the Daily News cannot serve as a basis to gain unfettered access to CBS news files or to depose reporters." Id. at 1724.
Similarly, a federal court has held that a journalist does not necessarily waive the qualified privilege for nonconfidential information by conducting interviews in the presence of third parties. In Pugh v. Avis Rent a Car System, Inc., 1997 WL 669876 *5, 26 Med. L. Rep. 1311, 1316 (S.D.N.Y. 1997), the subpoenaed journalist had conducted an interview of several litigants in a discrimination action. The Pugh court held that
The mere presence of third parties during an interview does not undermine the interests served by the qualified privilege, which allow a journalist to review privately his or her notes, tapes, or videotapes of an interview, and then decide what information to publish and how to incorporate it as part of a news story without fear that what he or she publishes can result in easy obtainment of those notes, tapes, and videotapes by litigants in search of any nonpublished material relevant to a lawsuit.
Since the 1990 amendment to the Shield Law, at least one state court has held that if a confidential source later waives the absolute privilege, the material becomes "nonconfidential" and thus subject to the three-part test of the qualified privilege. People v. Lyons, 151 Misc.2d 718, 574 N.Y.S.2d 126 (City Ct. Buffalo 1991).
In a recent case decided under federal law, a New York federal court held that a radio industry newsletter -- which was the plaintiff in a defamation action against another such newsletter -- had waived the reporters privilege with respect to confidential sources by putting the existence of and communications with the sources in issue. Inside Radio, Inc. v. Clear Channel Communications, 2002 WL 1446620 (S.D.N.Y. 2002). Inside Radio (IR) sued Clear Channel Communications (CCC) for defamation -- the allegedly defamatory statements being the published accusation by CCC in its newsletter hat IR had itself knowingly and deliberately publishing false and defamatory stories about CCC, and that IR had suggested that it had confidential sources for its stories about CCC when in fact it did not. Essentially, IR's claim was that it had been defamed by CCC's accusation that IR had defamed it.
Because one of the allegedly defamatory statements by CCC was that IR did not have the confidential sources it claimed, by bringing the suit IR put the existence of these sources in issue; if it did not have the sources, the CCC articles were true (at least in this regard) and therefore not defamatory. Similarly, the IR "reporter's" state of mind -- whether he knew that the articles concerning CCC were false -- was also directly relevant to the issue of actual malice. The court held that "the question whether [IR] had any sources for the purportedly factual statements in the [IR] article and, if so, precisely what they told [IR] not only is clearly relevant, but it is pivotal to the claim or defense and unavailable from anyone but [IR]." Id. at *6. Accordingly, the court determined that IR had waived the journalists privilege in bringing its defamation claim and thereby putting the very existence of purported confidential sources and what they told IR directly in issue.
While the court styled its decision as one involving waiver of the reporters privilege, it could just as easily (and perhaps more accurately) be described simply as a case in which the three-part test applied in Burke and its progeny was met, as the above-quoted language indicates.Compare
2. Elements of waiver
a. Disclosure of confidential source's name
As stated above, disclosure of a confidential sources' name to an editor or other journalist does not waive the privilege, as these persons are also protected by the "cloak of confidentiality," but publication of a source's name will waive the privilege only with respect to the source's identity. Wolf, 39 A.D.2d 864.
Prior to the statute's expansion to include a qualified privilege for nonconfidential news, the privilege was deemed waived if the source later identified himself as the source of "any such news." Andrews v. Andreoli, 92 Misc.2d 410, 400 N.Y.S.2d 442 (Sup. Ct. Onondaga County 1977). See People v. Zagarino, 97 Misc.2d 181, 411 N.Y.S.2d 494 (Sup. Ct. Kings County 1978) (fact that a source testified at trial and thus disclosed his identity waived privilege). However, more recent decisions indicate that if a confidential source's identity is disclosed by the source voluntarily, the formerly confidential information is simply treated as "nonconfidential" and is protected by the qualified privilege. Lyons, 574 N.Y.S.2d 126.Compare
b. Disclosure of non-confidential source's name
See above, if the source's name is disclosed, the privilege is waived only with regard to the source's identity. See, e.g., See Guice-Mills v. Forbes, 12 Misc.3d 852, 819 N.Y.S.2d 432 (Sup. Ct. N.Y. Cty. 2006).Compare
c. Partial disclosure of information
See above, partial disclosure may be considered waiver with regard to that particular information disclosed.Compare
d. Other elements
There is no statutory or case law regarding this issue.Compare
3. Agreement to partially testify act as waiver?
In Matter of Dan, 80 Misc.2d at 404, the court observed that it would be "an exercise in futility to require a newsman to testify before a grand jury and not be able to require his testimony at the trial of indictments based on his grand jury testimony." In Dooley v Boyle, 140 Misc.2d 171, 531 N.Y.S.2d 158 (Sup. Ct. N.Y. County 1988), decided prior to the 1990 amendment to the Shield Law, the court held that while a media reporter's notes from a confidential source are not discoverable en masse, to the extent that the reporter already has sworn to the accuracy of the statements, specific notes of such statements are discoverable.Compare
VII. What constitutes compliance?
New York's Civil Practice Law and Rules ("CPLR") § 2305 sets forth the basic compliance requirements for testimonial subpoenas, or subpoenas ad testificandum (sub-section (a)) and subpoenas duces tecum (sub-section (b)), as follows:
§ 2305. Attendance required pursuant to subpoena; possession of books, records, documents or papers
(a) When person required to attend. A subpoena may provide that the person subpoenaed shall appear on the date stated and any recessed or adjourned date of the trial, hearing or examination. If he is given reasonable notice of such recess or adjournment, no further process shall be required to compel his attendance on the adjourned date. At the end of each day's attendance, the person subpoenaed may demand his fee for the next day on which he is to attend. If the fee is not then paid, he shall be deemed discharged.
(b) Subpoena duces tecum; attendance by substitute. Any person may comply with a subpoena duces tecum by having the requisite books, documents or things produced by a person able to identify them and testify respecting their origin, purpose and custody.….
Accordingly, when a valid testimonial subpoena is issued, the person directed to attend must do so. In contrast, a subpoena duces tecum (which, by definition seeks documents and things rather than testimony of a person) is, as the Practice Commentaries to the CPLR note, "deemed complied with as long as the person who shows up with the subpoenaed things can identify them and discuss their 'origin, purpose and custody.'" (David D. Siegel, Practice Commentaries, McKinney's Consolidated Laws of New York Annotated Civil Practice Law and Rules § 2305 (b)). Although few New York cases have applied this provision of the CPLR, it appears that the person testifying must be competent to satisfy all three criteria. See Standard Fruit & Steamship Co. v. Waterfront Commission of New York Harbor, 43 N.Y.2d 11, 400 N.Y.S.2d 732 (1977) (corporation failed to comply with subpoena duces tecum issued by government agency investigating use of corporate checks when it merely produced corporate officer who had no knowledge of purpose for which checks were issued); Castro v. Alden Leeds, Inc., 144 A.D.2d 613, 535 N.Y.S.2d 73 (2d Dep't 1988) (corporation failed to comply with subpoena duces tecum served on its vice president, which ordered vice president to produce for trial book describing characteristics of chemicals, when vice president delivered book but immediately left trial court's jurisdiction).Compare
A. Newspaper articles
Where a valid subpoena is testimonial (i.e., it provides that a specific person must appear), the subpoenaed person must be produced. CPLR § 2305 (a). Where a valid subpoena calls for documents or things (i.e., a subpoena duces tecum), the question of compliance posed to newspaper publishers in less clear. No New York cases have addressed the interplay between the general requirements of CPLR § 2305(b) (see above) and CPLR § 4532 (providing that newspapers and "periodicals of general circulation" are self-authenticating).
Pursuant to CPLR § 4532:
Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to printed materials purporting to be newspapers or periodicals of general circulation; provided, however, nothing herein shall be deemed to preclude or limit the right of a party to challenge the authenticity of such printed material, by extrinsic evidence or otherwise, prior to admission by the court or to raise the issue of authenticity as an issue of fact.
Accordingly, as an evidentiary matter, CPLR § 4532 frees publishers from having to produce testimony from employees verifying the authenticity of a newspaper or periodical article (subject to an opponent's opportunity to challenge authenticity). Although a party issuing a subpoena duces tecum may still technically insist on compliance with CPLR § 2305 (b) to demand that the subpoenaed party produce someone to identify the newspaper and testify as to its origin, purpose and custody, this requirement seems particularly inapposite in the context of a self-authenticating newspaper, especially when the publisher is a third party and has been subpoenaed to produce a newspaper to establish the fact of publication. Moreover, as a practical matter, especially where the newspaper publisher is a non-party, the parties are likely to stipulate that the newspaper article is authentic so that there will be no need for the publisher to produce an employee to testify.
In the event that CPLR § 2305 (b) is deemed to require a newspaper publisher to produce a person to testify, the language of the rule would apparently permit anyone with sufficient knowledge to identify the document and explain its origin, purpose and custody, including not only editors and reporters but also administrators and archivists with the requisite knowledge. If the newspaper is subpoenaed to prove its content, the reporter or publisher could be called to testify.Compare
B. Broadcast materials
Although no New York cases specifically address the issue, the general requirements of CPLR § 2305 (b) appear to apply to valid subpoenas duces tecum directed at broadcasters seeking broadcast materials such as tapes. (See above). Thus, a broadcaster would have to produce a person with sufficient knowledge to identify the broadcast the materials and testify as to their origin, purpose and custody. CPLR § 2305 (b). Assuming that the witness has the requisite knowledge, he or she could be an editor, reporter, newscaster or archivist.
To the extent that the broadcaster is also required as an evidentiary matter to authenticate the broadcast materials for trial, New York does not have a self-authenticating rule for such materials analogous to CPLR § 4532 for newspapers and periodicals. (See sub-section A above). Therefore, the broadcaster could be subject to the general evidentiary rubrics including "[s]ome reliable authentication and foundation," People v. Patterson, 93 N.Y.2d 80, 84, 688 N.Y.S.2d 101, 104 (1999) (referring to non-exclusive methods of authentication, including that "a videotape may be authenticated by the testimony of a witness to the recorded events or of an operator or installer or maintainer of the equipment that the videotape accurately represents the subject matter depicted."). Thus, testimony from a camera operator might be sufficient, depending on the nature of the broadcast materials. In People v. Ely, 68 N.Y.2d 520, 527-28, 510 N.Y.S.2d 532 (1986), the New York Court of Appeals explained the authentication requirements for audio tapes as follows:
Admissibility of tape-recorded conversation requires proof of the accuracy or authenticity of the tape by "clear and convincing evidence" establishing "that the offered evidence is genuine and that there has been no tampering with it". The necessary foundation may be provided in a number of different ways. Testimony of a participant in the conversation that it is a complete and accurate reproduction of the conversation and has not been altered or of a witness to the conversation or to its recording, such as the machine operator, to the same effect are two well-recognized ways. Testimony of a participant in the conversation together with proof by an expert witness that after analysis of the tapes for splices or alterations there was, in his or her opinion, no indication of either is a third available method.
A fourth, chain of custody, though not a requirement as to tape recordings is also an available method.
68 N.Y.2d at 527-28 (citations omitted). See People v. Curcio, 169 Misc.2d 276, 280, 645 N.Y.S.2d 750, 752 (Sup. Ct. St. Lawrence County 1996). As a practical matter, however, as with newspapers, the parties are likely to stipulate to at least the authenticity of broadcast material that has been aired.Compare
C. Testimony vs. affidavits
Although as an evidentiary matter, a party on whom a subpoena is served may authenticate a newspaper or broadcast material by means of an affidavit, see e.g., Gonzales v. NBC, 194 F.3d 29, 30 (2d Cir. 1999) (affirming District Court decision which had directed NBC to produce outtakes of videotapes and an affidavit authenticating them); Gavenda v. Orleans County, 1997 WL 65870, *2 n.5 (W.D.N.Y. 1997), it is less clear whether in response to a subpoena a sworn affidavit can be used as a substitute for court testimony. In light of the wording of CPLR § 2305 which at least on its face calls for live testimony (see sub-section A above) and the general principle that live testimony must be given at trial (see David D. Siegel, New York Practice § 396, 2002 Supplement), the rule seems to be that affidavits will generally not suffice. See, e.g., People v. Slochowsky, 116 Misc.2d 1069, 1075, 456 N.Y.S.2d 1018, 1022 (N.Y. Sup Ct. Kings County 1982) (where testimony of District Attorney was inconsistent with other testimony, court noted that "the use of affidavits in substitute of live testimony is inappropriate under the conditions of this particular case").
Even a recent decision which one commentator has described as "what appears to be the first New York opinion approving [an] affidavit procedure," Faust F. Rossi, 1998-99 Survey of New York Law: Evidence, 50 Syracuse Law Review 649, 684-85 & n.351 (2000), allowed only direct testimony to be introduced by affidavit in lieu of live testimony subject to various limitations, including the qualifications that each witness still had to take the witness stand to swear to the accuracy of the affidavit and had to be available for live cross-examination. See Campaign for Fiscal Equity v. State of New York, 182 Misc.2d 676, 699 N.Y.S.2d 663 (Sup. Ct. N.Y. County 1999) (presented with as many as 140 witnesses whose testimony a public interest group sought to introduce, court held that the group would be permitted to introduce direct non-expert witness testimony in affidavit form in lieu of live testimony in court, subject to various qualifications). Accordingly, it is unlikely, absent consent of both sides, that an affidavit could be regarded as a sufficient substitute for live testimony in response to a subpoena.
Nonetheless, as a practical matter, both sides may agree that an affidavit is sufficient. Accordingly, an offer of an affidavit by the reporter confirming, for example, that the quotes were accurate, should be made to the subpoenaing party. The non-subpoenaing party's agreement either not to insist on cross-examination or upon some mutually satisfactory language in the affidavit may be negotiated.Compare
D. Non-compliance remedies
CPLR § 2308 sets forth the penalties available for disobedience of subpoenas, assuming the Shield Law's protections have been overcome Pursuant to § 2308 (a), non-compliance with a judicial subpoena (defined as a "subpoena issued by a judge, clerk or officer of the court") is punishable as a contempt of court. Additionally, the subpoenaed person, whether or not a party witness, may be liable to the issuer of the subpoena for damages caused by non-compliance and a fine of up to $50. If the subpoenaed person is a party, the court may strike his or her pleadings. And the court may issue a warrant directing the sheriff to forcibly commit the witness to jail until he or she complies. CPLR § 2308 (a).
Pursuant to § 2308 (b), non-compliance with a non-judicial subpoena (i.e., one issued in an out-of-court proceeding such as an administrative hearing or an arbitration) is not immediately punishable as a contempt of court. Instead, the issuer or person on whose behalf the subpoena was issued may move in the New York Supreme Court to compel compliance. On such a motion, if the court finds that the subpoena was authorized, it must order compliance and may impose costs of up to $50. If the court orders compliance and the subpoenaed person continues to disobey, as with judicial subpoenas pursuant to sub-section (a), he or she will be liable to the issuer for damages caused by non-compliance and a fine of up to $50. Additionally, the court may direct the sheriff to produce the witness before the appropriate body (e.g., an administrative tribunal) and, if he refuses without reasonable cause to be examined or otherwise comply with the subpoena, to commit him to jail until he complies.
The key difference between a judicial subpoena and a non-judicial subpoena was aptly summarized by the First Department of New York's Appellate Division in Reuters Ltd. v. Dow Jones Telerate, Inc., 231 A.D.2d 337, 662 N.Y.S.2d 450 (1st Dep't 1997). As the court noted:
In the case of judicial subpoenas, including those issued by an attorney of record in a matter pending before a court, a person who fails to comply, without making a motion to quash, runs the risk of being held in contempt based directly on that failure. In distinction, a person who is served with a non-judicial subpoena cannot be held in contempt for failure to comply unless and until a court has issued an order compelling compliance, which order has been disobeyed. Thus, there is no need to move to quash such a subpoena in order to avoid sanctions, and one who is served and does not wish to comply may safely wait until the party who served the subpoena moves to compel compliance.
Id. at 341. (citations omitted). See also David D. Siegel, New York Practice § 385 (West Publishing, 3d Ed. 1999); David D. Siegel, Practice Commentaries, McKinney's Consolidated Laws of New York Annotated Civil Practice Law and Rules § 2308.Compare
1. Civil contempt
This section addresses situations where a reporter is held in civil contempt to compel compliance, with the proverbial keys to the cell in his own pocket. In the words of the New York Court of Appeals, contempt "usually involves imprisonment, a fine or both," and is "considered a drastic measure," Oak Beach Inn Corp. v. Babylon Beacon, Inc., 62 N.Y.2d at 165, 476 N.Y.S.2d at 272 (1984). To sustain a civil contempt, "a lawful judicial order expressing an unequivocal mandate must have been in effect disobeyed" and "prejudice to the rights of a party to the litigation must be demonstrated." McCain v. Dinkins, 84 N.Y.2d 216, 226, 616 N.Y.S.2d 335 (1994).
While recent high profile federal cases have brought the possibility of contempt to the forefront of the media's collective consciousness, it remains exceptional for reporters in New York to be found in contempt and fined and/or imprisoned, no doubt due to the robust protections afforded to professional journalists and newscasters by New York's Shield Law. Where such sanctions have been imposed, they have typically been overturned on appeal. By the express terms of the Shield Law, contempt would only be available where the qualified privilege for materials had been overcome and the reporter refused to produce the nonconfidential materials. As a practical matter, where no confidential sources are implicated, it is unlikely that a reporter would refuse to comply with an order to disclose the information that has been upheld on appeal. (See below).Compare
Under the CPLR, a court can assess a "penalty" for disobedience of a judicial subpoena and can also award damages. While the penalty is capped at $50, the damages amount is not. CPLR § 2308 (a). The disobeying party may also be fined under N.Y. Judiciary Law § 753 (A) (5), which states:
- A court of record has the power to punish, by fine and imprisonment, or either, a neglect or violation of duty, or other misconduct, by which a right or remedy or a party to a civil action or special proceeding, pending in the court may be defeated, impaired, impeded, or prejudiced in any of the following cases…
- A person subpoenaed as a witness, for refusing or neglecting to obey the subpoena, or to attend, or to be sworn, or to answer as a witness…
In any other case, where an attachment or any other proceeding to punish for a contempt, has been usually adopted or practiced in a court of record, to enforce a civil remedy of a party to an action or special proceeding in that court, or to protect the right of a party.
As the McCain court stated, "[c]ivil contempt has as its aim the vindication of a private party to litigation and any sanction imposed upon the contemnor is designed to compensate the injured private party for the loss or interference with the benefits of the mandate" that has been disobeyed. McCain, 84 N.Y.2d at 226 (imposing civil contempt penalties on city of $50 for the first night and $100 per additional night spent in emergency welfare assistance offices to be paid to homeless families to compensate for city's violation court order to provide emergency housing). Speculative or conjectural proof cannot form a basis for a fine imposed as indemnity for actual loss or injury suffered as a result of the contempt. 21 NY Jur. Contempt § 109 (1996). If the civil contempt is proven, but the complaining party either cannot prove loss or injury, or cannot show amount of loss, then a punitive fine may be imposed, not to exceed $250 plus the cost of the complainant's costs and expenses. N.Y. Jud. § 773.
For disobedience of a non-judicial subpoena, only if the issuer or person on whose behalf the subpoena was issued moves in the Supreme Court to compel compliance, and the court finds that the subpoena was authorized, may the court impose "costs", which are capped at $50, and a penalty, also capped at $50. CPLR § 2308(b). However, like the procedure for judicial subpoenas, the recalcitrant party is liable for damages caused by non-compliance once the court has ordered compliance; and this damages amount is not subject to a cap. Id. The damages are compensatory and are governed by the same rules as for judicial subpoenas, described above. (For fines in connection with findings of criminal contempt, see Section VII (D) (2), below.)
In practice, journalists and news organizations in New York have seldom been fined for non-compliance with a subpoena and, on the rare occasions they have, the fines have typically been overturned on appeal. See, e.g., In re Petroleum Products Antitrust Litigation, 680 F.2d 5 (2d Cir.), cert. denied sub nom Arizona v. McGraw-Hill, Inc., 459 U.S. 909 (1982) (vacating civil contempt order and fine of $100 per day imposed by lower court after McGraw Hill complied only in part with subpoena, declining to produce certain documents which contained the names of confidential sources; issuer had failed to demonstrate the necessity of the information and had not attempted to obtain the information elsewhere); In re NBC (Krase v. Graco), 79 F.3d 346 (2d Cir. 1996), rev'g In re NBC, Inc. (Krause v. Graco Children Prods., Inc.), 24 Media L. Rep. 1607 (S.D.N.Y. 1995) (reversing District Court's ruling finding NBC in contempt for failing to comply with subpoena and imposing fine of $5,000 per day, where information sought was not critical or necessary in the sense that the issuer's claim or defense "virtually rises or falls" with the admission or exclusion of the information sought and the information was obtainable from other sources); In re Dow Jones & Co., 182 F.3d 899 (2d Cir. 1999) (table) (vacating order of contempt); In Re WBAI-FM (People v. Doe), 39 A.D.2d 869, 333 N.Y.S.2d 876 (1st Dep't 1972) (reversing order finding radio station in contempt -- unclear whether civil or criminal contempt -- and imposing fine of $250, in addition to committing general manager of radio station to jail for 30 days, where subpoena was overbroad). But see, von Bulow by Auersperg v. von Bulow, 811 F.2d 136, 13 Media L. Rep. 2041 (2d Cir. 1987), aff'g 652 F. Supp 823 (S.D.N.Y. 1986), cert. denied, 481 U.S. 1015 (1987) (affirming order of civil contempt and fine of $500 per day, stayed pending appeal, imposed on third party witness who had written manuscript but was deemed not to be a professional journalist therefore unable to claim reporter's privilege either under the First Amendment or New York's Shield Law).Compare
While courts have the power to jail journalists who fail to comply with valid subpoenas pursuant to CPLR § 2308 as long as they disobey court orders (see Section VII(D) above), it is extremely rare for such sanctions to have been imposed on journalists without being reversed on appeal. See, e.g., In Re WBAI-FM (People v. Doe), 39 A.D.2d 869, 333 N.Y.S.2d 876 (1st Dep't 1972) (reversing order finding radio station in contempt -- unclear whether civil or criminal contempt -- and committing general manager of radio station to jail for thirty days in addition to imposing fine of $250, where subpoena was overbroad). Moreover, in the rare instances where such sanctions have been imposed and upheld, they have been issued in older cases prior to the enactment of New York's Shield Law. See In re Cepeda, 233 F. Supp. 465 (S.D.N.Y. 1964) (applying California law, court found journalist for bi-weekly periodical liable for criminal contempt and committed him to custody of Attorney General for ten days for refusing to name confidential sources during deposition in New York and during hearing before court, holding that he did not fall within protections of California's Shield Law); Garland v. Torre, 259 F.2d 545, 1 Media Law Rep. 2541 (2d Cir.) (journalist for the New York Herald Tribune held in criminal contempt and sentenced to ten days in jail, though promptly released, for refusing to divulge at pre-trial deposition confidential source of quotation attributed to a CBS "network executive" in defamation lawsuit brought by actress Judy Garland), cert denied, 358 U.S.910 (1958).Compare
2. Criminal contempt
Since a finding of contempt is a "drastic measure," Oak Beach Inn Corp., 62 N.Y.2d at 165, in the case of confidential material, imposition of a fixed criminal contempt sentence on a journalist or news organization is virtually unheard of in New York (at least since the enactment of the Shield Law). The offenses that constitute a criminal contempt are listed in § 750 of New York's Judiciary Law and, in general terms, as one commentator has noted, "a contempt is or becomes criminal when it threatens the power and dignity of the law itself." David D. Siegel, Practice Commentaries, McKinney's Consolidated Laws of New York Annotated. It is "designed to vindicate and uphold the authority of the judiciary and the penalty is punitive." David D. Siegel, New York Practice § 482. Pursuant to Judiciary Law § 751 (1), criminal contempt is punishable "by fine, not exceeding $1000, or by imprisonment, not exceeding 30 days, . . . or both . . . ."
Generally, imposition of a contempt sentence for refusing to testify subject to a valid subpoena will require a showing of willful defiance, even though § 750 of the Judiciary Law makes no reference to willfulness or intent. Abrams v. New York Foundation for the Homeless, 190 A.D.2d 578, 593 NYS2d. 518, app dismissed without opp., 81 NY2d 954, 597 NYS2d939, 613 NE2d 971 (1st Dep't 1993) (finding that the defendant's persistent and willful defiance of the Supreme Court's subpoena warranted a finding of contempt.). It is the moving party's burden to establish not only that the subpoena is valid, but that the respondent's non-compliance is deliberate and willful. 21 N.Y. Jur. Contempt §20 (1996).
While some New York cases have found journalists liable for criminal contempt, typically they have been reversed or were decided prior to the enactment of New York's Shield Law. See discussion in section VII D (1) (b), supra.Compare
3. Other remedies
Under CPLR § 2308 (a), where a witness has been issued a judicial subpoena and is a party to the action, the court may punish non-compliance with the subpoena by striking out the party's pleading. According to one commentator, the court may also have discretion to invoke the lesser sanctions contemplated by CPLR § 3126 for disobedience of pre-trial disclosure orders (i.e., other than striking pleadings, an order resolving issues to which the non-disclosed evidence in relevant in favor of the movant and an order prohibiting the disobedient party from producing certain evidence or witnesses in support of his or her case). David D. Siegel, Practice Commentaries, McKinney's Consolidated Laws of New York Annotated § 2308. In any event, New York courts view the remedy of striking a party's pleadings as a drastic one and not to be lightly invoked. See Oak Beach Inn Corp., 62 N.Y.2d at 166, (alternative sanctions to contempt provided for by CPLR § 3126 regarded as at least as serious as contempt; "[a] newspaper involved in a substantial libel action may well find the threat of contempt less intimidating than the thought of being entirely stripped of its defenses if it continues to preserve the confidentiality of its source."); Segal v. Princess Ann Girl Coat, Inc., 285 A.D. 811 (1st Dep't 1955) (striking of pleadings for failure to comply with court order or subpoena characterized as an "extreme penalty"). Other consequences may include precluding a reporter from relying on the testimony of undisclosed sources, but this remedy, as well, has been narrowly construed. See discussion at section III.C.(1) and III.H., supra.Compare
As a general matter, it is strongly advised that a person wishing to appeal an order granting or denying a motion to quash or for a protective order consult the rules for the court in which the order to be appealed has been made and the rules for the court in which the appeal will be brought. Unlike the trial courts, there are no Uniform Rules for the various departments of the appellate division. The individual rules for each of the departments can be found at title 22 of the New York Codes, Rules and Regulations (22 NYCRR). In addition, McKinney's annually publishes a pamphlet containing the rules. It should also be noted that in the first and second departments there are "appellate terms," which hear appeals of actions originating in the district, city, town and village courts. The appellate term rules should also be consulted, if necessary.Compare
1. Interlocutory appeals
Under paragraph 2 of CPLR § 5701 (a), an appeal to the appellate division may be taken as a matter of right on certain orders, including interlocutory orders, where the motion resulting in the order was made on notice. (Appeals stemming from ex parte orders are governed by CPLR § 5701 (a) 3.) Among the categories of orders which may be appealed as of right are those that "involve some part of the merits" of the action and orders that "affect a substantial right." CPLR § 5701 (a) 2. These categories sweep broadly, and there are "precious few" orders which may not be appealed from as a matter of right. Siegel, New York Practice at 858 (West Publishing, 3d Ed. 1999). In addition, an appeal may be taken on permission of the judge who issued the order appealed from. CPLR § 5701 (c). While there does not appear to be any case law addressing whether a reporter appealing the denial of a motion to quash should proceed "as of right" or by permission, a substantial right of the reporter will be affected by the order to disclose the material, and he or she should bring the appeal under CPLR § 5701 (a) 2, as of right. See People v. Marin, 86 A.D.2d 40, 448 N.Y.S.2d 748 (2d Dep't 1982) (denial of motion to quash trial subpoena issued to nonparty law firm in criminal action deemed final and appealable).
It should also be noted that pursuant to the CPRL, only "judgments" or "orders" may be appealed. See CPLR § 5512; Grisi v. Shainswit, 119 A.D.2d 418 507 N.Y.S.2d 155 (1st Dep't 1986) (no appeal lies from a ruling, as distinct from an order). Civil Rights Law § 79-h(c) requires that any court which orders disclosure of nonconfidential information "shall support such order with clear and specific findings made after a hearing." Accordingly, the order compelling disclosure will likely be reduced to writing and denominated an "order" as a matter of course. However, a party seeking to appeal an adverse ruling should make sure that this is the case by submitting an order to the court for signature, if none has been issued, so that an appeal may be taken.
An appeal as of right "must be taken within thirty days after service by a party upon the appellant of a copy of the judgment or order appealed from and written notice of its entry…." CPLR § 5513 (a). Usually the prevailing party on the motion will serve the judgment and notice of entry (a one-page document attaching the judgment or order, which is filed with the clerk of the issuing court) on the losing party. However, where the party appealing the judgment or order (usually the losing party) has served it and the notice of entry on his or her adversaries, the thirty days in which to appeal runs from the time of this service. Id. Additional time to file a notice of appeal is allowed where the judgment and notice of entry are served by mail or overnight delivery rather than by hand. See CPLR § 5513 (d).
Filing a notice of appeal (i.e., "taking" an appeal) should not be confused with "perfecting" it. Taking an appeal is a relatively simple process which usually involves only filing and serving the notice of appeal. (Some appellate courts also require that a brief statement of the issues also be filed along with the notice, and the particular court's rules should be consulted in this regard.) The notice of appeal is a straightforward document which contains the case caption, names of the party appealing, the judgment or order (or part thereof) being appealed, and specifies the court to which the appeal is taken. See CPLR § 5515 (1). To be safe, the appealing party should appeal every part of the order (i.e., "every part thereof") in order to avoid waiving the right to appeal any discrete part of it. See City of Mt. Vernon v. Mt. Vernon Housing Auth., 235 A.D.2d 516, 652 N.Y.S.2d 771 (2d Dep't 1997) (denying leave to amend notice of appeal to include appeal of parts of underlying order not initially appealed from). Perfecting the appeal, on the other hand, consists of, among other things, securing the transcripts from the proceeding (if any), drawing the record, writing briefs and getting the required papers printed, served and submitted to the court, all of which are governed by their own rules. However, the first step in the appeal process, once the notice of entry has been filed and served, is to file and serve the notice of appeal, which should be done sooner rather than later in order to avoid waiving the right to an appeal due to a failure to timely serve the notice of appeal.Compare
2. Expedited appeals
New York has various appellate courts, all of which have their own rules and practices. As a result, the procedure for getting an expedited hearing may vary substantially from court to court. It is strongly recommended that the reporter seeking to expedite an appeal consult the rules of the court in which the appeal will be heard. The rules for many New York courts, including certain appellate courts, can be found online at http://www.courts.state.ny.us/. In addition, it may also be helpful to speak with the clerk of the court to determine the procedure for seeking expedited relief.
Frequently, an expedited appeal schedule will be requested along with a motion for a stay of enforcement of the judgment or order pursuant to CPLR § 5519 (c), or it may be made a condition of granting such a stay. In the First Department, Rule 600.2 of that department governs the timing for motions. Motions must be made on eight days' notice, if service is by personal delivery, unless the parties agree to abbreviated service, in which case the motion may be heard sooner. Thus, the reporter could have his or her motion for a stay heard within eight days (or less) of filing it. The other appellate division courts have similar rules, which should be consulted prior to filing an appeal.
If relief is required immediately, the reporter can and should call the clerk of the court to arrange an application for such relief. See Mark Davies, et al., 8 New York Civil Appellate Practice § 17.3 (West Publishing Co. 1996). In the First Department it is possible to get an expedited hearing before a court attorney, who will then take the matter to a judge to be decided. The reporter seeking such relief should first obtain the order to be appealed and have it file-stamped by the clerk of the court in which the order was rendered. The next step is to draft a notice of motion requesting a stay of enforcement pursuant to CPLR § 5519 (c) and seeking expedited relief, with the return date on the notice left blank. The reporter should then contact his or her adversary to let them know that they will be seeking such expedited relief and when the matter will be heard (24 to 48 hours notice is preferred), so that the opposing counsel can be present for the hearing before the court attorney. If it is truly an emergency, the matter can be heard on the same day that the order to be appealed is rendered, but opposing counsel should still be given notice of the application for expedited relief. The procedure for seeking such relief varies from court to court, and the reporter should not hesitate to call the clerk's office of the appellate court to determine how best to obtain an expedited hearing.
In addition, it is also possible to seek a preference. See CPLR § 5521 ("preferences in the hearing of an appeal may be granted in the discretion of the court to which the appeal is to be taken"). A preference is simply a device whereby an appeal can be moved up on the colander, rather than being heard in the usual order. In the First and Second Departments, their respective rules provide in relevant part that a "preference under CPLR 5521 may be obtained upon good cause shown in an application made to the court on notice to the other parties to the appeal." First Department Rule 600.12 (a) (2); Second Department Rule 670.7 (b) (2).Compare
1. To whom is the appeal made?
As noted above, it is advisable for the practitioner to consult the rules for both the court of original instance (from which the order to be appealed was issued) and for the court in which the appeal will be brought before beginning the appeal process. New York appellate courts do not have uniform rules that cover all of them, nor do the various departments have uniform court structures, all of which may effect where -- and how -- an appeal should be taken.
For the most part, reporters privilege issues arise in proceedings before supreme courts of New York, in which case the appeal goes to the appellate division of the department in which the judgment or order was entered (e.g., an order entered in the supreme court, New York county would be appealed to the Appellate Division, First Department). The appellate division courts also have jurisdiction to hear appeals arising from orders or judgments of the county courts or "appellate terms." See CPLR § 5501 (c). Not all departments, however, have appellate terms. The First and Second Departments do, and these appellate term courts may hear appeals of judgments and orders entered in the city civil courts, town and village courts. See Rules of New York Supreme Court, Appellate Term, First Department § 640.1. In the Third and Fourth departments, however, the county courts sit as appellate tribunals over city, town and village courts.
While the appeal may be heard by, e.g., the Appellate Division, First Department for an ordered entered in the Supreme Court, New York county, the notice of appeal itself should be filed with the court of original instance. See CPLR § 5515 (1).Compare
2. Stays pending appeal
The reporter may seek a stay pending appeal pursuant to CPLR § 5519 (c), which gives either the court of original instance or the reviewing court (the party seeking the stay may apply for it before either) the discretion to stay the enforcement of any order pending appeal. See Grisi v. Shainswit, 119 A.D.2d 418 507 N.Y.S.2d 155 (1st Dep't 1986) (granting of stays pending appeal is, "for the most part, a matter of discretion"). Given that disclosing the material sought from the reporter prior to an appeal being heard would render the appeal academic, such a request for a stay should be granted. See Van Amburgh v. Curran, 73 Misc.2d 1100, 344 N.Y.S.2d 966 (Sup. Ct. Albany County 1973) (stay pending appeal of execution order dismissing petitions for modification of subpoenas requiring policemen to appear at a hearing granted where, absent stay, policemen would be required to attend hearing and appeal would be rendered academic).Compare
3. Nature of appeal
See section VIII (a) (1) above.Compare
4. Standard of review
The standard of review on appeal of a motion to quash a subpoena or for a protective order is abuse of discretion. See In re Beach v. Shanley, 62 N.Y.2d 241, 476 N.Y.S.2d 765 (1984). The appellate division courts may review questions of law and of fact on appeal from a judgment or order of a court of original jurisdiction, and they may affirm, reverse and vacate a lower court's order. See CPLR § 5501 (c). The New York Court of Appeals, however, "shall review questions of law only," except where the appellate division court has found new facts and a final judgment is entered based on those facts. CPLR § 5501 (b).Compare
5. Addressing mootness questions
The possibility of mootness will sometimes arise in the criminal context where the trial proceeds without the reporter's testimony or materials or where a grand jury, having previously issued a subpoena to a reporter, disbands before an appeal on a motion to quash the subpoena can be heard. See, e.g., In re Codey, 82 N.Y.2d 521, 606 N.Y.S.2d 661 (1993) (grand jury disbanded prior to appeal). The New York Court of Appeals has articulated a three-element analysis test to determine if a given matter presents an exception to the mootness doctrine which, if met, may allow an appeal to proceed. The three elements considered are: "(1) a likelihood of repetition, either between the parties or among other members of the public; (2) a phenomenon typically evading review; and (3) a showing of significant or important questions not previously passed on, i.e., substantial and novel issues." Hearst Corp. v. Clyne, 50 N.Y.2d 707, 714-15, 431 N.Y.S.2d 400, 402 (1980). While many appellate courts will not be inclined to hear an appeal on a moot issue given their often over full dockets, the possibility of obtaining appellate review still exists. See In re Codey, 82 N.Y.2d 521 (applying three element analysis articulated in Hearst Corp., supra); Johnson Newspaper Corp. v. Parker, 101 A.D.2d 1027, 475 N.Y.S.2d 951, appeal dismissed, 63 N.Y.2d 673 (1984).Compare
The reporter generally should seek a reversal of the order compelling disclosure. In the unlikely event that a finding of contempt has been entered or a fine levied, the reporter should seek a reversal of the order imposing these sanctions. The appellate court may affirm, reverse or vacate an order, and may also remand the matter to the trial court for reconsideration, though this latter option is less frequently exercised.Compare
IX. Other issues
A. Newsroom searches
There are no New York cases applying the federal Privacy Protection Act of 1980, 42 U.S.C. §§ 2000aa-2000aa-12, to journalists in connection with newsroom searches, nor are there any similar provisions under state law.Compare
B. Separation orders
There is no statutory or case law addressing this issue.Compare
C. Third-party subpoenas
New York courts have not been as receptive as other state courts to the efforts of journalists and news organizations to quash subpoenas directed to third parties in order to obtain information such as phone, credit card or other records which would, if disclosed, reveal confidential sources. See, e.g., Philip Morris v. ABC, 23 Media L. Rptr. 2438 (Va. Cir. Ct. 1995) (cognizant of ABC's First Amendment interests in the confidentiality of its sources, court applied tripartite analysis of Branzburg v. Hayes, 408 U.S. 665 (1972) to ABC's motion to quash subpoena for expense records of third parties which would have revealed confidential sources).
In the leading New York case, Greenfield v. Schultz, 173 Misc.2d 31, 660 N.Y.S.2d 624 (Sup. Ct. N.Y. County 1997), aff'd in part, modified in part on other grounds, vacated in part on other grounds, 251 A.D.2d 67, 673 N.Y.S.2d 684 (1st Dep't 1998), an editor at The New York Times sought to compel the defendant to return phone records it had allegedly obtained from a phone company pursuant to a third party subpoena in the context of a landlord-tenant lawsuit with the editor. The editor, among other things, contended that production of the phone records would violate his rights under First Amendment and New York's Shield Law by revealing the identity of his confidential sources. Rejecting this argument, the court applied the reasoning in Reporters Committee for Freedom of the Press v. AT&T, 593 F.2d 1030, 1042-1046 (D.C. Cir.), cert. denied, 440 U.S. 949 (1979), finding that no journalistic privilege based on the First, Fourth and Fifth Amendments attaches to third-party billing records. Having noted the provisions of the Shield Law, the court concluded that it "perceive[d] no reason to expand the constitutional protection so that it cloaks third-party sources of non-confidential information with a . . . qualified privilege." 173 Misc.2d at 38, 660 N.Y.S.2d at 630. The First Department of the Appellate Division, while modifying the order of the lower court and vacating its award of sanctions against the editor individually and against his attorney, affirmed the lower court's rejection of the editor's argument regarding the subpoena. 251 A.D.2d 67, 673 N.Y.S.2d 684.
As to the question of standing to bring an action to quash a subpoena directed towards a third party where disclosure would reveal confidential sources, no New York court has explicitly addressed whether a journalist or media organization can premise its right to sue on the basis of its First Amendment interests in confidentiality of its sources. In the absence of any such valid interest, the general rule may be that some sort of possessory or proprietary interest in the information subpoenaed is required. See, e.g., People v. Di Raffaele, 55 N.Y.2d 234, 433 N.E.2d 513 (1982) (rejecting claim by non-media defendant that his toll-billing records were obtained in violation of his constitutional privilege against self-incrimination because defendant, "having no possessory or proprietary interest in the records, [had] no standing to sue").Compare
D. The source's rights and interests
One New York case, decided after the U.S. Supreme Court's ruling in Cohen v. Cowles Media Co., 501 U.S. 663 (1991) that the First Amendment does not prohibit a source from recovering damages for a journalist's breach of a promise of confidentiality, has held that a claim for breach of a promise not to identify an individual in not barred by either the federal or the New York constitutions. See Anderson v. Strong Memorial Hospital, 151 Misc.2d 353, 573 N.Y.S.2d 828 (Sup. Ct. Monroe County 1991) (denying newspaper's motion to dismiss action for indemnification and contribution brought by hospital which had been found liable for breach of confidential patient-physician relationship, after publication of photo identifying hospital patient as HIV positive in breach of newspaper's promise to hospital not to make patient recognizable in photo). Although Anderson did not involve an action by a source given a promise of confidentiality, journalists and newspapers should be aware of potential exposure to liability in New York for breach of promises of confidentiality if a source is promised anonymity and that promise is subsequently broken.Compare