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North Dakota

Reporters Privilege Compendium

Steve Johnson
Vogel Law Firm
P.O. Box 1389
Fargo, ND 58107
701-237-6983

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I. Introduction: History & Background

The North Dakota statute governing the reporter's privilege is codified in N.D.C.C. § 31-01-06.2:

No person shall be required in any proceeding or hearing to disclose any information or the source of any information procured or obtained while the person was engaged in gathering, writing, photographing, or editing news and was employed by or acting for any organization engaged in publishing or broadcasting news, unless directed by an order of a district court of this state which, after hearing, finds that the failure of disclosure of such evidence will cause a miscarriage of justice.

The reporter's privilege has not been extensively litigated in North Dakota. The case that most thoroughly examines the statute is Grand Forks Herald v. Dist. Court in and for Grand Forks Cnty., 322 N.W.2d 850 (N.D. 1982). The North Dakota Supreme Court ruled that the North Dakota statute governing the reporter's privilege did not require that the news source be confidential in order for the court to determine that the privilege applied. In dicta, the court speculated that the confidentiality of the information is one of the factors that district courts should consider in determining whether the disclosure of the evidence will result in a miscarriage of justice. Additional factors in determining whether disclosure would result in a miscarriage of justice were whether alternative sources of information were available to the party seeking the information and whether disclosure would create a chilling effect on First Amendment rights.

Generally, application of the reporter's privilege is subject to the discretion of the district court. In its 1982 opinion, the court emphasized that the key factor in determining protected information is whether failure to disclose the information would result in a miscarriage of justice.

The statute was most recently considered in Moore v. State, 2006 ND 8, 711 N.W. 2d 606 (N.D. 2006), in which the North Dakota Supreme Court summarily affirmed a denial of an inmate’s application for post-conviction relief.  The petitioner had alleged the trial court falsified the sentencing hearing transcript, and sought to subpoena a television reporter present at the hearing to support his assertion.  The North Dakota Supreme Court upheld the district court’s order quashing the subpoena, which noted that the information sought was protected under N.D.C.C. § 31-01-06.2.

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II. Authority for and source of the right

North Dakota has codified the reporter's privilege in N.D.C.C. § 31-01-06.2. The case that most thoroughly examines the statute is Grand Forks Herald v. Dist. Court in and for Grand Forks Cnty., 322 N.W.2d 850 (N.D. 1982). The court recognized that other jurisdictions have recognized Branzburg v. Hayes, 408 U.S.665 (1972) as conferring a First Amendment privilege on news gatherers. As a response to the Branzburg decision, the North Dakota legislature adopted section 31-01-06.2.

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A. Shield law statute

North Dakota adopted the shield law statute in 1973, in apparent response to the Branzburg decision. The statute is codified in N.D.C.C. § 31-01-06.2:

Disclosure of news sources and information required only on court order. No person shall be required in any proceeding or hearing to disclose any information or the source of any information procured or obtained while the person was engaged in gathering, writing, photographing, or editing news and was employed by or acting for any organization engaged in publishing or broadcasting news, unless directed by an order of a district court of this state which, after hearing, finds that the failure of disclosure of such evidence will cause a miscarriage of justice.

The North Dakota Supreme Court examined the legislative history behind the statute in Grand Forks Herald v. Dist. Court in and for Grand Forks Cnty., 322 N.W.2d 850 (N.D. 1982). The purpose behind the statute was to protect confidential sources, although the plain language of the text does not make that distinction.

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B. State constitutional provision

The North Dakota state constitution does not have an express shield law provision. The shield law is codified at N.D.C.C. § 31-01-06.2. There is no case law discussing reporter's privilege prior to the adoption of the current shield law. Since there is no constitutional provision on shield laws, there is no case law interpretation.

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C. Federal constitutional provision

The North Dakota Supreme Court has not applied or rejected a reporter's privilege based on the First Amendment to the U.S. Constitution. There is no case law discussing federal constitutional rights prior to the legislature adopting the shield law in 1973.

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D. Other sources

There are no additional sources of a reporter's privilege, such as court rules, state bar guidelines, or administrative procedures. The only source for a reporter's privilege is the applicable North Dakota statute.

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III. Scope of protection

A. Generally

The plain language of the applicable statute appears to offer broad protection under the reporter's privilege. However, dicta in the seminal case on this issue (Grand Forks Herald v. Dist. Court in and for Grand Forks Cnty., 322 N.W.2d 850 (N.D. 1982)) indicates that the privilege is a qualified one. The privilege is limited by whether the court would find that a "miscarriage of justice" would occur if the information was not disclosed. Factors considered in whether nondisclosure would result in a miscarriage of justice include:

(1) whether the information is available from some other source and the party seeking disclosure has exhausted all other resources of information;

(2) whether the information came from a confidential source, although this is not dispositive, it is only a factor to consider;

(3) relevancy of the information sought to the litigation;

(4) whether disclosure of the information would cause a "chilling effect".

The Grand Forks Herald court did not rule on the application of the reporter's privilege in criminal situations, although the court speculated that the nature of the action is something that a lower court should consider when determining whether nondisclosure would result in a miscarriage of justice.  In Moore v. State, 2006 ND 8, the North Dakota Supreme Court did consider the privilege in connection with a civil post-conviction petition of a criminal conviction and held that the reporter’s privilege statute served to bar an inmate’s subpoena of testimony from a reporter present at his sentencing.

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B. Absolute or qualified privilege

The privilege is a qualified one. The only qualifying factor is whether nondisclosure of the protected information would result in a miscarriage of justice. Factors such as confidentiality, civil or criminal matter, etc., are to be weighed in order to determine whether disclosure is appropriate.

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C. Type of case

1. Civil

The language of the North Dakota shield law does not make a distinction between civil and criminal cases. Presumably, the same standard would apply to both types of cases. The North Dakota Supreme Court has not yet had the opportunity to rule on whether the nature of the action would alter the conditions of the privilege. In Grand Forks Herald v. Dist. Court in and for Grand Forks Cnty., 322 N.W.2d 850 (N.D. 1982), the North Dakota Supreme Court speculated that the type of case would be one of the factors considered in determining whether nondisclosure would result in a miscarriage of justice.

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2. Criminal

The North Dakota Supreme Court has not yet ruled on whether subpoenas should be treated differently in criminal versus civil cases, although it has stated that the nature of the action is something that the trial court may consider in determining whether disclosure is appropriate. In Moore v. State, 2006 ND 8, the North Dakota Supreme Court affirmed a trial court’s decision in a post-conviction relief case to quash a criminal defendant’s subpoena of a television reporter that was present during the defendant's sentencing hearing. The defendant subpoenaed the reporter in support of his assertion that the trial court had falsified the transcript of his sentencing hearing. The trial court quashed the subpoena, finding that the information sought was procured or obtained while the reporter was employed by and acting for an organization engaged in broadcasting news, and the failure to disclose such evidence would not cause a miscarriage of justice.

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3. Grand jury

The North Dakota Supreme Court has stated the nature of the action is something the trial court may consider in determining whether disclosure is appropriate. The statute does not make a distinction between grand jury subpoenas and those issued during discovery. Accordingly, the privilege should not be more difficult to defend at this level.

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D. Information and/or identity of source

Confidentiality is one factor the court may consider in determining whether to allow disclosure. The plain language of the statute does not prohibit revealing a source.

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E. Confidential and/or nonconfidential information

The plain language of the statute does not distinguish between confidential and non-confidential information. The North Dakota Supreme Court speculated Grand Forks Herald v. Dist. Court in and for Grand Forks Cnty., 322 N.W.2d 850 (N.D. 1982) that confidentiality is one factor to consider when determining whether nondisclosure would result in a "miscarriage of justice". The confidential nature of a source is not dispositive in determining whether the information is protected.

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F. Published and/or non-published material

The plain language of the statute does not make a distinction between published and non-published material. However, in Grand Forks Herald v. Dist. Court in and for Grand Forks Cnty., 322 N.W.2d 850 (N.D. 1982), the North Dakota Supreme Court stated that because the plaintiff sought discovery on a group of photographs of which one had already been published, then it was unlikely that disclosure would cause a chilling effect on First Amendment rights. Publication is another likely factor in determining whether nondisclosure would result in a miscarriage of justice.

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G. Reporter's personal observations

The plain language of the statute does not address whether the privilege would protect an eyewitness. The statute does not specifically account for situations where the reporter has personally observed the matter on which he/she reported and then was subpoenaed. This issue was not addressed by the North Dakota Supreme Court when it summarily affirmed a trial court's order quashing a criminal defendant's subpoena of a television reporter in Moore v. State, 2006 ND 8, despite the fact that the television reporter was present during the defendant’s sentencing hearing.

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H. Media as a party

The plain language of the statute does not differentiate between situations where the media is a party. However, in Grand Forks Herald v. Dist. Court in and for Grand Forks Cnty., 322 N.W.2d 850 (N.D. 1982), the North Dakota Supreme Court stated that if the media is a party to the litigation, then the trial court should take this fact into consideration in determining whether nondisclosure would result in a miscarriage of justice.

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I. Defamation actions

North Dakota does not have a libel exception to the reporter's privilege. Accordingly, the court would probably consider the nature of the action when deciding whether nondisclosure would constitute a miscarriage of justice.

The governing statute on damages for defamation seriously limits the amount that a plaintiff can recover for defamation. In 1995, North Dakota passed the Uniform Correction or Clarification of Defamation Act, codified at N.D.C.C. Chapter 32-43. The legislation requires a plaintiff to make a timely and adequate request for correction and clarification from a defendant in order for the plaintiff to be able to claim damages other than pure economic loss. A good-faith attempt to request a correction or clarification must have been made within 90 days after a plaintiff learns of the publication, if the plaintiff is to be permitted to recover anything other than provable economic loss.

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IV. Who is covered

The applicable North Dakota statute does not define who qualifies as a “reporter” or what constitutes “news.” The plain language of the statute states that any person who is engaged in news gathering for the purpose of reporting is protected by the statute. North Dakota does not have any case law that delineates an exclusive or inclusive definition of who is a “reporter.”

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A. Statutory and case law definitions

1. Traditional news gatherers

a. Reporter

North Dakota law does not define the term “reporter.” The statute protects persons engaged in news gathering, while acting on behalf of a publishing or broadcast news agency. There are no conditions placed on the reporter's employment status with the agency. In Moore v. State, 2006 ND 8, a reporter for a local television station that attended a criminal defendant’s sentencing hearing was found to be acting on behalf of and employed by an organization engaged in broadcasting news.

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b. Editor

The North Dakota statute does not define “editor,” although the language of the statute implicitly includes employers of the newsgatherer.

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c. News

The term "news" is not defined in the statute, although the statute protects additional methods of news gathering such as wiring, photographing, and editing.

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d. Photo journalist

The statute does not define “photojournalist.”

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e. News organization/medium

The statute does not define “news media” or other types of newsgathering, such as broadcasting, publishing, or newspapers.

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2. Others, including non-traditional news gatherers

North Dakota does not have any case law that discusses the application of the privilege to any untraditional news gatherers. The statute is unclear as to whether it would apply to news librarians or others involved in the storage of news.

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B. Whose privilege is it?

North Dakota has not yet ruled on who can claim the privilege. However, statutory language and case law appears to indicate that the privilege belongs to the reporter and the employer.

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V. Procedures for issuing and contesting subpoenas

A. What subpoena server must do

1. Service of subpoena, time

There are no special rules for serving a subpoena on a member of the news media. Rule 45 of the North Dakota Rules of Civil Procedure requires that the subpoena be personally served, along with payment for one day's attendance, along with mileage and travel expense, as set by law.

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2. Deposit of security

A deposit of security is not required. However, a witness fee for one day's attendance, mileage and travel expenses must be paid at the time of service of the subpoena.

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3. Filing of affidavit

A subpoena can be signed by an attorney for a party to an action or proceeding or by the clerk of court. The North Dakota shield law does not require that the party serving the subpoena make any special sworn statement in order to procure the reporter's testimony or materials.

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4. Judicial approval

A judge or magistrate does not need to approve a subpoena under any particular circumstances before a party can serve it.

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5. Service of police or other administrative subpoenas

North Dakota does not have any special rules regarding the use and service of other administrative subpoenas, such as police or fire investigation subpoenas.

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B. How to Quash

1. Contact other party first

North Dakota law does not require that the party serving the subpoena be contacted prior to moving to quash. An objection to a subpoena must be submitted within ten days of receiving the subpoena or twenty-four hours prior to the time specified in the subpoena.

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2. Filing an objection or a notice of intent

North Dakota law does not require that a party serve a notice of intent to quash before the motion to quash is submitted. The service of an objection is sufficient.

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3. File a motion to quash

Motions to quash are not required. A party served with a subpoena merely has to serve the party designated in the subpoena with an objection within 10 days after receipt of the subpoena or, if the time specified in the subpoena for compliance is less than 10 days, then at least 24 hours before the time specified for compliance. If an objection is made, the party serving the subpoena is not entitled to compliance except by order of the court. The party serving the subpoena must file a motion to require compliance, with notice given to the party served with the subpoena.

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a. Which court?

All proceedings will take place in the court designated by the subpoena.

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b. Motion to compel

The media party should not wait for the party serving the subpoena to file a motion to compel before it files an objection to a subpoena. Any objection to a subpoena must be served on the party designated in the subpoena within 10 days or, at the time specified for compliance is less than 10 days, at least 24 hours before the time specified for compliance.

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c. Timing

An objection should be served on the party designated in the subpoena within 10 days or, if the time specified for compliance is less than 10 days, at least 24 hours before the time specified for compliance.

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d. Language

North Dakota law does not require any stock language or preferred text that should be included in an objection to a subpoena. It is recommended, however, that the basis of the objection be stated.

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e. Additional material

There are no required materials that should be attached to motions and memoranda in opposition to a motion to compel with a subpoena. However, courts are generally receptive to any relevant attachments.

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4. In camera review

a. Necessity

The statute does not require an in camera review, but the courts will normally conduct such a review as necessitated by the circumstances.

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c. Consequences of refusing

If the reporter or publisher does not consent to an in camera review the court can still order an in camera review.

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5. Briefing schedule

If a motion to compel is filed as the result of an objection to a subpoena, the party filing the motion must file a brief with the motion. Any party opposing the motion has 10 days to file a reply brief and supporting papers, and request oral argument on the motion.

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6. Amicus briefs

Amicus briefs are routinely accepted, but rarely filed.

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VI. Substantive law on contesting subpoenas

A. Burden, standard of proof

There is no standard of proof expressly stated in the case law. Generally, however, courts require the party serving the subpoena to demonstrate that failure to disclose will cause a miscarriage of justice.

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B. Elements

The plain language of the North Dakota statute does not require that any particular test be met. However, the dicta in the leading case on the subject indicates that the court should consider a conglomerate of different factors in order to determine whether nondisclosure is appropriate. The threshold is met when nondisclosure would result in a miscarriage of justice.

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1. Relevance of material to case at bar

The North Dakota Supreme Court has indicated that relevancy is one of the factors that should be considered when the court is determining whether disclosure is appropriate.

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2. Material unavailable from other sources

The North Dakota Supreme Court has stated that availability of the information from other sources is one factor to consider in determining whether the court should order disclosure. In Grand Forks Herald v. Dist. Court in and for Grand Forks Cnty., 322 N.W.2d 850 (N.D. 1982), the court appeared especially concerned with this factor. The final ruling in the case was based on the fact that the plaintiff in a car accident had no other access to photographs of the accident scene. Additionally, the court said that the fact that the plaintiff did not have other evidentiary options available, and because the Herald published one of the photographs of the accent scene, then the media would not suffer from a chilling effect, and failure to disclose the photographs would result in a miscarriage of justice.

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a. How exhaustive must search be?

The North Dakota Supreme Court has not determined whether the search must be exhaustive, nor has it applied any standards by which one can measure "exhaustion."

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

The plain language of the statute does not require that the subpoenaing party conduct an exhaustive search. However, North Dakota case law indicates that it is one of the factors to consider in determining whether the court should order disclosure.

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c. Source is an eyewitness to a crime

The fact that a source witnessed a crime and how it would affect the shield law has not been litigated in North Dakota. The statutory language does not distinguish between whether the information was gathered from a source that was either an eyewitness or a participant in a crime.

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3. Balancing of interests

The judicial balancing test promulgated by the North Dakota Supreme Court requires that the court look at several factors including, but not limited to:

(1) whether the information is available from some other source and the party seeking disclosure has exhausted all other resources of information;

(2) whether the information came from a confidential source, although this is not dispositive, it is only a factor to consider;

(3) relevancy of the information sought to the litigation;

(4) whether disclosure of the information would cause a "chilling effect."

The court should consider these factors in determining whether disclosure of the relevant information would result in the a miscarriage of justice.

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4. Subpoena not overbroad or unduly burdensome

A media party served with a subpoena can object based on the subpoena being overbroad or unduly burdensome. Compliance is thereafter not required unless the party serving the subpoena files a motion to compel, and a judge makes a determination that the subpoena is not overly broad or unduly burdensome.

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5. Threat to human life

The court is not required to weigh whether matter subpoenaed involved a threat to human life. However, this factor should be included by the court in determining whether nondisclosure would result in a miscarriage of justice.

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6. Material is not cumulative

Whether the expected testimony or material would be cumulative is probably relevant, since one factor to be considered is whether the information is available from another source.

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7. Civil/criminal rules of procedure

The rules of procedure allow a party to object to a subpoena. Therefore, compliance is not required except upon court order. There are no special rules in order to object to a frivolous or unduly burdensome subpoena.

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8. Other elements

There are no other elements to consider.

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C. Waiver or limits to testimony

1. Is the privilege waivable?

There is no North Dakota case law addressing whether a reporter waives the privilege through publication. Publication is one of the factors to consider in determining whether nondisclosure would result in a miscarriage of justice.

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2. Elements of waiver

a. Disclosure of confidential source's name

North Dakota has not yet determined whether the disclosure of a confidential source’s name would constitute a waiver of the privilege.

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b. Disclosure of non-confidential source's name

North Dakota has not yet determined whether the disclosure of a non-confidential source’s name would constitute a waiver of the privilege.

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c. Partial disclosure of information

North Dakota has not yet determined whether partial disclosure constitutes a waiver. Partial disclosure is one of the factors to consider in the judicial balancing test to determine if nondisclosure would result in a miscarriage of justice.

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d. Other elements

There is no North Dakota case law addressing other factors that should be considered in determining whether a reporter has waived the privilege. However, the North Dakota Supreme Court ruled in Grand Forks Herald v. Dist. Court in and for Grand Forks Cnty., 322 N.W.2d 850 (N.D. 1982) that one of the factors to consider on the disclosure issue is whether the media source has already published a photograph that is a part of a group of photographs that are sought in discovery.

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3. Agreement to partially testify act as waiver?

There is no applicable case law on this question.

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VII. What constitutes compliance?

A. Newspaper articles

Printed materials purporting to be newspapers or periodicals are self-authenticating. N.D. R. Evid. 902.

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B. Broadcast materials

The North Dakota Rules of Evidence do not address what is required when turning over broadcast material.

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C. Testimony vs. affidavits

The North Dakota Rules of Evidence do not address the issue of whether a sworn affidavit can take the place of in-court testimony to confirm that an article was true and accurate as published.

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D. Non-compliance remedies

North Dakota does not have any special laws to force a journalist to comply with a valid, upheld subpoena. General rules apply.

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1. Civil contempt

a. Fines

Applicable fines for non-compliance are not capped for journalists. Any fines levied against reporters are comparable to general rules of court.

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b. Jail

Applicable jail sentences for failing to comply with a subpoena are general sentences, and there are no exceptions for journalists protected under the shield law. North Dakota has never sent a reporter to jail for failing to disclose the names of confidential sources of information.

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2. Criminal contempt

North Dakota has never issued a fixed criminal contempt sentence, because no reporter has ever challenged the application of the North Dakota test for determining disclosure.

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3. Other remedies

All remedies against a non-complying reporter would be a general application of the rules. No reporter in North Dakota has challenged the application of criminal sanctions for non-compliance.

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VIII. Appealing

A. Timing

1. Interlocutory appeals

Orders dealing with subpoena compliance are considered discovery orders. Generally, such orders are interlocutory and not appealable. Accordingly, a party appealing such an order must file a petition for supervisory writ requesting the North Dakota Supreme Court to exercise its rights of original jurisdiction.

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2. Expedited appeals

B. Procedure

1. To whom is the appeal made?

Appeals are made to the North Dakota Supreme Court under a supervisory writ which falls within the original jurisdiction of the Court.

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2. Stays pending appeal

A request for a stay must initially be sought in the trial court. The motion must set forth the reasons for the requested stay and the facts relied upon. The general rules apply equally to both regular and expedited appeals. The fact that a reporter is addressing a violation of the shield law does not affect the standard.

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3. Nature of appeal

The legal nature of the appeal is review of a supervisory writ.

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4. Standard of review

The standard of review applied by the North Dakota Supreme Court on a supervisory writ is abuse of discretion. The fact that the reporter is addressing a constitutional right does not affect the standard of review.

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5. Addressing mootness questions

The North Dakota Supreme Court has not addressed the mootness issue when the trial or grand jury session for which the reporter was subpoenaed has concluded.

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6. Relief

A defendant reporter can seek any relief deemed appropriate. Typically, a reporter will seek an order reversing the trial court's order requiring compliance with the subpoena. The Supreme Court can issue such an order or send the case back to the trial court to reconsider the issue in light of the appellate decision.

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IX. Other issues

A. Newsroom searches

The federal Privacy Protection Act (42 U.S.C. 2000aa) has not been used to limit searches of newsrooms in North Dakota. There are no similar provisions under state law to limit newsroom searches.

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B. Separation orders

North Dakota has no statute or case law that offers additional protection limiting the scope of separation orders who are both trying to cover a trial and are also on the witness list. The issue has not been litigated in North Dakota.

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C. Third-party subpoenas

The courts in North Dakota have not considered whether a plaintiff can issue third party subpoenas in order to discover a reporter's sources. If a subpoena was served on a third party, no special notice to the reporter would be required.

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D. The source's rights and interests

The issue of whether sources have the right to intervene anonymously in order to halt the disclosure of their identities has not been litigated in North Dakota. Additionally, the issue of whether sources would be able to sue over disclosure after the fact has not been litigated.

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