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Oklahoma

Reporter's Privilege Compendium

Robert D. Nelon
Jon Epstein
Lindsay N. Kistler
Hall, Estill, Hardwick, Gable
Golden & Nelson
100 North Broadway, Suite 2900
Oklahoma City, OK 73102
Telephone (405) 553-2828
Facsimile (405) 553-2855
E-mail: bnelon@hallestill.com

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I. Introduction: History & Background

Oklahoma has had a shield law since 1974.  Originally adopted at the urging of the Oklahoma Press Association following the Supreme Court's decision in Branzburg v. Hayes, 408 U.S. 665 (1972), the journalist’s privilege statute is now incorporated in the state's evidence code.  It has been the subject of only one reported case, Taylor v. Miskovsky, 1981 OK 143, 640 P.2d 959.  In the twenty-five years since that decision, however, the privilege has often been invoked by reporters who have found themselves the target of discovery in criminal and civil proceedings in which they are not directly involved.  As a result, there are a number of unreported decisions at the trial level that give some indication how the courts treat the statute and the First Amendment principles that underlie it.

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II. Authority for and source of the right

The Oklahoma Supreme Court has treated Branzburg as recognizing a qualified First Amendment privilege.  Taylor v. Miskovsky, 1981 OK 143, 640 P.2d 959.  The Tenth Circuit, of which Oklahoma is a part, has utilized a tripartite balancing test to determine whether a constitutional privilege applies.  Silkwood v. Kerr-McGee, 563 F.2d 433 (10th Cir. 1977).  Oklahoma also has a qualified statutory privilege.

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A. Shield law statute

Oklahoma's shield law is found at Okla. Stat. tit. 12, § 2506. The text of the statute is as follows:

A.  As used in this section:

1. “State proceeding” includes any proceeding or investigation before or by any judicial, legislative, executive or administrative body in this state;

2. “Medium of communication” includes any newspaper, magazine, other periodical, book, pamphlet, news service, wire service, news or feature syndicate, broadcast station or network, cable television system, or record;

3. “Information” includes any written, oral or pictorial news or other record;

4. “Published information” means any information disseminated to the public by the person from whom disclosure is sought;

5. “Unpublished information” includes information not disseminated to the public by the person from whom disclosure is sought, whether or not related information has been disseminated, and includes, but is not limited to, all notes, outtakes, photographs, tapes or other data of whatever sort not itself disseminated to the public through a medium of communication, whether or not published information based upon or related to such material has been disseminated;

6. “Processing” includes compiling, storing and editing of information; and

7. “Journalist” means any person who is a reporter, photographer, editor, commentator, journalist, correspondent, announcer, or other individual regularly engaged in obtaining, writing, reviewing, editing, or otherwise preparing news for any newspaper, periodical, press association, newspaper syndicate, wire service, radio or television station, or other news service.  Any individual employed by any such news service in the performance of any of the above-mentioned activities shall be deemed to be regularly engaged in such activities.  However, journalist shall not include any governmental entity or individual employed thereby engaged in official governmental information activities.

B.  No journalist shall be required to disclose in a state proceeding either:

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

2.  Any unpublished information obtained or prepared in gathering, receiving or processing of information for any medium of communication to the public; unless the court finds that the party seeking the information or identity has established by clear and convincing evidence that such information or identity is relevant to a significant issue in the action and could not with due diligence be obtained by alternate means.

This subsection does not apply with respect to the content or source of allegedly defamatory information, in a civil action for defamation wherein the defendant asserts a defense based on the content or source of such information.

The journalist’s privilege statute was originally adopted in 1974, 1974 Okla. Sess. Laws, c. 123, §§ 1–3, and codified as Okla. Stat. tit. 12, §§ 385.1–385.3.  A privilege for journalists was not incorporated in the initial draft of the Oklahoma Evidence Code when it was proposed in 1978 by the Subcommittee on Evidence of the Oklahoma Bar Association's Code Procedure––Civil Committee, but the Oklahoma legislature inserted the privilege without change in substance from the then–current statutory version.  Although the legislative history of the privilege is scant, it is believed that the Oklahoma Press Association was instrumental in persuading legislators of the value of a privilege statute.  The privilege statute was amended in 2002 to change the term “newsman” to “journalist” and otherwise to make the statute gender–neutral, but there have been no substantive amendments since its adoption in 1978.

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B. State constitutional provision

Oklahoma does not have an express constitutional shield provision.  Okla. Const. Art. 22, § 22 says in part that “Every person may freely speak, write, or publish his sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press.”  The Oklahoma Supreme Court has said generally that Oklahoma's “protection of free speech is far more broadly worded than the First Amendment's restriction on governmental interference with speech.”  Gaylord Entertainment v. Thompson, 1999 OK 128, ¶ 13 n.23, 958 P.2d 128, 138 n.23 (emphasis by court).  However, the Oklahoma Supreme Court has not decided whether the state constitutional provision affords protection to journalists, and Art. 22, § 22 was not mentioned in Taylor v. Miskovsky.  Presumably, if the First Amendment shields a reporter, as recognized in Taylor, then the state constitutional provision would do so also.

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C. Federal constitutional provision

The Oklahoma Supreme Court recognized a qualified First Amendment privilege, based on Branzburg, in Taylor v. Miskovsky.

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D. Other sources

There are no other state–law sources of a reporter’s privilege, such as court rules, state bar guidelines, or administrative procedures.

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III. Scope of protection

A. Generally

Oklahoma has a broad privilege statute that seems to be fairly well understood and enforced without much hesitation by the trial courts.  The dearth of appellate authority suggests that the statute has been correctly interpreted and applied by the lower courts on those occasions where judicial action to quash a subpoena has been required.

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B. Absolute or qualified privilege

The privilege under the statute is qualified.  The privilege may be overcome by a clear and convincing showing that the identity of the source or the content of unpublished information is relevant to a significant issues in the action and cannot be obtained by alternative means.  In Taylor v. Miskovsky, the court treated the statute as embracing the three-prong test outlined in Garland v. Torre, 259 F.2d 545 (2nd Cir.), cert. denied, 358 U.S. 910 (1958):  The person seeking information from a journalist must demonstrate that the information is relevant to a significant issue in the case, goes to the heart of the claim or defense of the person seeking disclosure, and is not available through alternative means.

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C. Type of case

1. Civil

Although on its face the privilege statute is applicable to all “state proceedings,” including any proceeding before “any judicial, legislative, executive or administrative body,” the privilege has most often been invoked in civil cases in which the journalist is not a party but is a prospective witness.

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2. Criminal

The statutory privilege applies equally in civil or criminal judicial proceedings.  Our experience has been that the source of the subpoena (whether prosecutor or defendant) has had little impact on the court's interpretation of the statute.

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3. Grand jury

The statute, by its express terms, does not differentiate grand jury from other judicial proceedings.  There is no case law interpreting the statute in a grand jury context.

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D. Information and/or identity of source

The statute protects the identity of the source of published or unpublished information.  The protection is not dependent on whether the journalist made an express promise of confidentiality to the source.

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E. Confidential and/or nonconfidential information

The statute does not differentiate between confidential and non–confidential information.  All unpublished information is subject to the privilege.

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F. Published and/or non-published material

The statute expressly covers all unpublished information, which includes all “information not disseminated to the public by the person from whom disclosure is sought, whether or not related information has been disseminated.”  Unpublished information is defined to include “all notes, outtakes, photographs, tapes or other data of whatever sort not itself disseminated to the public through a medium of communication.”

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G. Reporter's personal observations

A journalist’s personal observations are not specifically mentioned in the statute, but the definition of unpublished information would seem to cover any observations not disseminated to the public.  Our experience has been that courts will quash a subpoena for the eyewitness testimony of a reporter unless the party issuing the subpoena overcomes the privilege.

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H. Media as a party

The statute does not depend on whether the media is a party.  It protects from disclosure all privileged information sought from a party or a non–party.

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I. Defamation actions

By the express terms of the statute, the privilege does not apply in a defamation action (whether or not the defendant is a member of the media) in circumstances in which the defendant relies for its defense on the source or content of the information claimed to be privileged.  There are no reported cases interpreting the last paragraph of the privilege statute.  Presumably, the defendant must either disclose the source of the published information or the content of related unpublished information if contending that it acted on a reasonable belief that the published information was true.  For example, a defendant could not contend that it had a reasonable source for the allegedly defamatory information and yet refuse to disclose the identity of the source.  However, it is not always clear whether a defendant is “assert[ing] a defense based on the content or source of such information.”  We are aware of at least one case in federal court (applying Oklahoma law) in which the defendants obtained summary judgment in a defamation case without disclosing the identity of the confidential sources.  In that case, the defendants were able to establish that the statements about which the plaintiff complained were either substantially true or protected expression of opinion.  Those defenses were presented without relying on the identity of the confidential sources.  There are no reported cases defining what sanction can be imposed for a refusal to disclose the source or content where the court has determined the information is not privileged.

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IV. Who is covered

The privilege statute is limited to a “journalist,” a term which the statute defines.  Governmental entities or persons employed by them who are “engaged in governmental information activities” are excluded from the term “journalist.”

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A. Statutory and case law definitions

1. Traditional news gatherers

a. Reporter

The statute does not define “reporter” but includes reporters among those protected by the privilege if the reporter is “regularly engaged” in newsgathering.  Other persons mentioned in the statute are photographers, editors, commentators, journalists, correspondents, announcers, “or any other individual regularly engaged in obtaining, writing, reviewing, editing, or otherwise preparing news.” The term “regularly engaged” is not defined but presumably covers part–time as well as full–time news gatherers.

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b. Editor

Editors are covered by the statutory privilege.

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c. News

The statute does not define what is “news,” but the privilege is limited to those who gather and prepare it for dissemination to the public. See ¶ IV(A)(1)(e) below.

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d. Photo journalist

Photojournalists are covered by the statutory privilege.

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e. News organization/medium

The statute is limited to those persons “regularly engaged” in gathering and preparing news “for any newspaper, periodical, press association, newspaper syndicate, wire service, radio or television station, or other news service.”  None of these terms is defined in the statute.  The statute does not specifically mention the Internet, although it seems improbable that any person or entity “regularly engaged” in providing information services online would not fall within the term “news service.”

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2. Others, including non-traditional news gatherers

There is no case law to define how broadly the term “journalist” will be interpreted.  Presumably even non–traditional news gatherers such as bloggers will be included if they are “regularly engaged” in some aspect of news preparation and do so for a “news service.”

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B. Whose privilege is it?

The privilege appears to belong to the “journalist.”  The statute says that “No journalist shall be required to disclose . . .” the source of any published or unpublished information. Okla. Stat. tit. 12, § 2506(B)(1). Our experience is that the “news service” by which the journalist is “regularly engaged” can also assert the privilege, although there is no case law saying so.

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V. Procedures for issuing and contesting subpoenas

A. What subpoena server must do

1. Service of subpoena, time

Okla. Stat. tit. 12, § 3230(C)(1) requires that a subpoena be served sufficiently in advance of the deposition or hearing to allow a witness the time needed to travel to the place where the testimony is to be given, plus three days of preparation.  Okla. Stat. tit. 12, § 2004.1 provides that if a subpoena commands production of documents but does not require the attendance of a witness, the subpoena shall specify a date of production at least seven days after service of the subpoena.  By local court rules, the federal district courts in Oklahoma have defined “reasonable notice” for a deposition to be seven days (Eastern and Northern Districts) or 14 days (Western District)

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2. Deposit of security

No deposit or other form of security is required by statute.

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3. Filing of affidavit

The privilege statute does not require the party requesting disclosure to file an affidavit.

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4. Judicial approval

A subpoena in Oklahoma does not require court approval.

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5. Service of police or other administrative subpoenas

There are no special rules of which we are aware for administrative subpoenas.  Various state agencies have subpoena power, but the agencies are subject to traditional time requirements.

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B. How to Quash

1. Contact other party first

The law does not require that a party intending to assert a privilege contact the party seeking disclosure, but we recommend it.  In many instances in which parties to litigation, especially civil cases, have issued subpoenas to media organizations or journalists, the information they seek is either not available or a copy of what was published is enough to satisfy the need of the litigants.  For example, for our television station clients, a telephone call to the attorney issuing the subpoena to inform her that “unpublished information” (such as raw video) no longer exists and an agreement to produce a dub of what was broadcast (for a reasonable charge) are often adequate to avoid the subpoena altogether.  In our experience, many of the attorneys issuing subpoenas to the media have no experience with newsgathering, and they have little understanding of how a publication or broadcast is prepared, or what documentation of it exists afterwards.  A telephone call, perhaps followed with a letter of explanation, can sometimes avoid having to file a motion to quash.

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2. Filing an objection or a notice of intent

Oklahoma law does not require the filing of a notice of intent to file a motion to quash.  If the subpoena is simply for the production of documents, there is a procedure by which a non–party can by letter or email advise the party issuing the subpoena of an objection, thereby shifting the burden to the party seeking disclosure to file a motion to compel rather than leaving to the party subpoenaed the burden of filing a motion to quash.  Okla. Stat. tit. 12, § 2004.1 provides that a party or attorney responsible for issuing a subpoena “shall take reasonable steps to avoid imposing undue burden or expense on a person subject to that subpoena.”  Sanctions can be imposed for a breach of that obligation.  Under this statute, a person receiving a subpoena for documents may, before the time for compliance or within 14 days, whichever is earlier, serve a written objection to the subpoena on the issuing party.  The issuing party is thereafter prohibited from inspecting and copying the documents except pursuant to a court order.  The party issuing the subpoena may file a motion to compel, but an order compelling production must protect the person from significant expense in complying with the order.  The response to a motion to compel may, of course, include the assertion of privilege.  Section 2004.1 also allows a party asserting a privilege (e.g., if the subpoena is for the testimony of the journalist) to file a motion to quash without waiting for a motion to compel to be filed.

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3. File a motion to quash

a. Which court?

Oklahoma procedure contemplates that a motion to quash will be filed in the same court in which the action is pending if the subpoena is issued in connection with a case filed in Oklahoma.

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b. Motion to compel

The party issuing the subpoena may file a motion to compel, but an order compelling production must protect the person from significant expense in complying with the order.  The response to a motion to compel may, of course, include the assertion of privilege.  Okla. Stat. tit. 12, § 2004.1 also allows a party asserting a privilege (e.g., if the subpoena is for the testimony of the journalist) to file a motion to quash without waiting for a motion to compel to be filed.

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c. Timing

Under Oklahoma procedure, the filing of a motion to quash suspends any duty of compliance until the motion is heard.  We nevertheless encourage clients to file a motion as soon as it becomes apparent that less formal options are no longer available.

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d. Language

We usually quote the pertinent parts of the statute in a motion in case the court has not had significant experience with the privilege statute.  We also usually combine both statutory and constitutional grounds for quashing the subpoena.

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e. Additional material

We have not traditionally attached other material to the motion, but there is no procedural prohibition from doing so in an appropriate case.

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4. In camera review

a. Necessity

The Oklahoma privilege statute does not speak to in camera review.  It may be appropriate to suggest such review in the motion to quash if relevance rather than unavailability from alternative sources is the primary issue the court will have to deal with in deciding the motion.  That is, if it is clear that the information sought is not available from alternative sources, and the success of the motion to quash depends on the court's perception of the relevance or lack of relevance of the information, in camera review may help persuade the court that the information sought is of limited or marginal relevance or does not “go to the heart” of the issue to which it might be marginally relevant.

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Consent to in camera review has no effect under the statute on the right to review by an appellate court, other than perhaps the impact on the good will of the court, from whom a stay pending the filing of a writ application will be sought in the first instance.

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c. Consequences of refusing

Refusal to consent to in camera review has no effect under the statute on the right to review by an appellate court, other than perhaps the impact on the good will of the court, from whom a stay pending the filing of a writ application (see ¶ VIII below) will be sought in the first instance.

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5. Briefing schedule

Under ordinary circumstances, a motion cannot be set for hearing earlier than 23 days after the motion is filed.  In the usual course, a party has 15 days from the date a motion is filed (18 days if the papers are served by mail) within which to respond to a motion.  Many judges have a local rule requiring briefs to be filed and delivered to the court at least five days before the matter is to be heard.  However, all courts have the power to order expedited briefing and hearing if necessary.

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6. Amicus briefs

Courts at all levels have been known to accept amicus briefs.  We do not routinely ask for amicus assistance but would consider doing so in the extraordinary case.  If an amicus brief were appropriate, we would naturally consider the Reporters Committee for Freedom of the Press, Radio Television Digital News Association, Investigative Reporters & Editors, The Oklahoma Press Association, the Oklahoma Association of Broadcasters, and other media.

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VI. Substantive law on contesting subpoenas

A. Burden, standard of proof

The party seeking disclosure of privileged information must prove clearly and convincingly that the information sought is highly relevant and cannot be obtained by alternate means.

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B. Elements

As interpreted in Taylor v. Miskovsky, the privilege statute contains three elements: (1) the information sought must be relevant, (2) it must go to the heart of the claim or defense of the party seeking the information, and (3) alternative means to obtain the information must have been exhausted.

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1. Relevance of material to case at bar

The material sought must be highly relevant, that, is, go to the heart of the case of the party seeking the information.  In Taylor v. Miskovsky, the information sought by the plaintiff in a defamation case was from a reporter who researched and wrote articles about the plaintiff after the publication of the articles written by another reporter that were at issue in the suit.  The court concluded that what the second reporter found could not be relevant to the issues in the case over the earlier articles.

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2. Material unavailable from other sources

Alternative means of obtaining the information must have been exhausted.  It has been our experience that trial courts treat this element as demanding.  Unless the party seeking the information has unsuccessfully explored virtually every other means to obtain the information, the court will not compel its disclosure from the journalist.  The most frequent circumstance we confront is the request for raw video and the testimony of a television reporter who has observed the scene of a crime, fire, or accident that later is the subject of litigation.  We frequently succeed in quashing subpoenas on the ground that there were a multitude of witnesses to the event, including police or fire officials, who are as capable as the reporter (or more so) to testify about what they observed.

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a. How exhaustive must search be?

No Oklahoma decision has explored the extent to which a party seeking disclosure must exhaust alternative sources, other than to parrot the statutory language in Taylor v. Miskovsky that the proof that the information “could not with due diligence be obtained by alternate means” must be clear and convincing.

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

By the express terms of the statute, the party seeking disclosure must clearly and convincingly demonstrate that it has used “due diligence” to obtain the information sought from alternative sources.

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c. Source is an eyewitness to a crime

The Oklahoma courts have not addressed whether alternative means of obtaining information are not available under circumstances where the source is an eyewitness to or participant in a crime.

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3. Balancing of interests

The privilege statute strikes the balance by requiring the party seeking the information to meet the requirements of the statute clearly and convincingly.  In Taylor v. Miskovsky, the court said the Oklahoma legislature was “within” First Amendment limits (described in Branzburg) in crafting the privilege statute.

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4. Subpoena not overbroad or unduly burdensome

Okla. Stat. tit. 12, § 2004.1(C)(1) requires a party or attorney issuing a subpoena to “take reasonable steps to avoid imposing undue burden or expense on a person subject to that subpoena.”  A court can impose sanctions for a breach of this duty.  If a court enforces a subpoena, the order “shall protect any person who is not a party or an officer of a party from significant expense resulting from the inspection and copying commanded.”  Likewise, § 2004(C)(3)(a)(2) allows a court to quash a subpoena on the ground that it “subjects a person to undue burden.”

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5. Threat to human life

This issue has not been addressed by the Oklahoma courts.

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6. Material is not cumulative

This issue has not been addressed by the Oklahoma courts, but presumably, if the material sought would be cumulative, then the party seeking the information could not demonstrate that the information could not be obtained with due diligence by alternate means.

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7. Civil/criminal rules of procedure

The journalist’s privilege is equally applicable in civil or criminal proceedings, and we are not aware of any rules of procedure that alter that fact.

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8. Other elements

Taylor v. Miskovsky, the only Oklahoma case applying the statute, did not identify any elements beyond the language of the statute.

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C. Waiver or limits to testimony

As a general proposition, any right may be waived, but there are no reported Oklahoma cases discussing the circumstances under which the journalist’s privilege would be deemed waived, short of an express waiver by disclosure of the privileged information.  We are aware of one unreported case in Oklahoma, Tate v. Boyd, No. 94405 (Okla. Sup. Ct. April 24, 2000), in which a subpoena was quashed despite the contention by the party issuing the subpoena that the privilege was waived because the reporter had discussed some of her unpublished information with others.

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1. Is the privilege waivable?

There are no reported Oklahoma cases discussing this issue.

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2. Elements of waiver

a. Disclosure of confidential source's name

There are no Oklahoma cases discussing whether the disclosure of privileged information by a reporter to an editor or other person in the same media organization, or to the reporter’s or the organization’s counsel, would constitute a waiver.  Our sense of the law in general about waiver of rights and privileges is that it would not, if the person to whom disclosure was made had a “need to know.”

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b. Disclosure of non-confidential source's name

The name of a non–confidential source by definition would not be protected by the first part of the privilege statute (regarding confidential sources) but it would likely be privileged nevertheless as unpublished information.

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c. Partial disclosure of information

The Oklahoma statute recognizes two different aspects of privileged information: sources and unpublished information.  With respect to sources, the disclosure of the identity of one source of information would presumably not constitute a waiver of the privilege with respect to other sources of that or other information, although neither the language of the statute nor existing case law directly answer the question.  With respect to unpublished information, the statute expressly says that unpublished information is privileged from disclosure even if related information is disseminated to the public.

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d. Other elements

There are no Oklahoma cases discussing this issue.

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3. Agreement to partially testify act as waiver?

There are no Oklahoma cases discussing this issue.

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VII. What constitutes compliance?

A. Newspaper articles

Newspapers are self–authenticating under Okla. Stat. tit. 12, § 2902(6).  Under the rules of evidence as generally applied, the reporter would not be required to testify as to the identification or authenticity of an article he wrote or the newspaper document itself.  As a matter of experience, once media–generated materials are disclosed, a representative of the media rarely needs to testify.  The identity and authenticity of the material have rarely been an issue.

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B. Broadcast materials

Digital reproductions of broadcast materials (like tapes formerly) produced pursuant to subpoena have rarely raised issues of identification or authenticity.  They are generally accepted by the subpoenaing party for what they are.  If a person from a broadcast entity is required to testify, our experience has been that a records custodian, engineer, or other non–journalist should be designated; the reporter or news director should not testify.

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C. Testimony vs. affidavits

It is not clear under Oklahoma law whether an affidavit could suffice as a substitute for testimony.  We have no experience to suggest that it would not, at least absent some compelling reason to question the veracity of the affidavit, but its sufficiency would likely depend on the particular facts and circumstances.

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D. Non-compliance remedies

Under Okla. Stat. tit. 12, § 2004.1, the failure by any person to obey a subpoena “without adequate excuse” is deemed a contempt of court from which the subpoena was issued.  In addition, if the reporter or media organization is a party, the sanctions for non–compliance in discovery set out in Okla. Stat. tit. 12, § 3237 are also available.

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1. Civil contempt

Disobedience of a subpoena or refusal to testify as a witness is civil contempt under Okla. Stat. tit. 12, § 392.  For the refusal of a witness to attend in obedience to a subpoena, an attachment may issue for an officer to bring the witness before the court, and the recalcitrant witness may be fined up to $50 and imprisoned in the county jail until he purges himself of the contempt by testifying.  The witness may also be liable to the party injured for any damages suffered by reason of the witness' refusal to testify.

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a. Fines

We are not aware of any situation in Oklahoma where a reporter has been fined for refusal to disclose privileged information.

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b. Jail

There are no recent examples in Oklahoma of reporters jailed for refusal to disclose sources or unpublished information.

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2. Criminal contempt

Criminal contempt is punishable by fine not exceeding $500 or imprisonment in the county jail for up to 6 months or both.  There are no recent examples in Oklahoma of reporters jailed for criminal contempt.

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3. Other remedies

There are no reported Oklahoma cases in which sanctions have been imposed on the media defendant for refusal to disclose sources or unpublished information.  In a defamation case, the court could probably grant default judgment, instruct the jury to presume that the reporter did not have any source he declined to identify, or refuse to permit the defendant to assert any defense based on the undisclosed information.

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VIII. Appealing

Although there is little authority in Oklahoma, orders resolving discovery disputes between parties and orders relating to discovery from non-parties are not appealable orders.  In general, the subject of an order regarding discovery, including orders granting or denying a motion to quash or motion for protective order, may challenge the order by extraordinary writ under Okla. Const. Art. 7, § 4.  See Floyd v. Ricks, 1998 OK 9, 954 P.2d 131; Inhofe v. Wiseman, 1989 OK 41, 772 P.2d 389.  The procedure governing writs is set out in Okla. Stat. tit. 12, §§ 1451, et seq.

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A. Timing

1. Interlocutory appeals

Challenges to orders regarding subpoenas are not governed by appeal rules in Oklahoma.

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2. Expedited appeals

Challenges to orders regarding subpoenas are not governed by appeal rules in Oklahoma.

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B. Procedure

1. To whom is the appeal made?

All applications for an extraordinary writ are filed with the Oklahoma Supreme Court.

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2. Stays pending appeal

The court which entered the order granting or denying a motion related to a subpoena has the discretion to stay the effect of the order, and our experience has been that it will usually do so.  If the lower court refuses to enter a stay, a request for a stay can be included in the application for a writ.  Writ applications are usually prepared and filed within a few days of the entry of the challenged order, and compliance with an order to divulge information can usually be avoided long enough to get the writ papers filed.

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3. Nature of appeal

The Supreme Court's exercise of writ jurisdiction is discretionary, but the assertion that the writ involves an issue of privilege, especially one with constitutional underpinnings, is usually effective in getting the court to assume jurisdiction.  The Oklahoma Supreme Court has said that it will exercise jurisdiction where “valued fundamental–law rights are clearly implicated and their immediate protection from encroachment appears absolutely necessary.”  Gaylord Entertainment Co. v. Thompson, 1998 OK 30, 958 P.2d 128.  In Gaylord, the Supreme Court granted extraordinary relief to direct a trial court to dismiss non–actionable claims, the continued prosecution of which would have had a chilling effect on the defendants’ First Amendment rights of political speech.  The court concluded, among other reasons for its action, that the publication at issue in the case was protected by Oklahoma’s statutory fair report privilege.

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4. Standard of review

The legal test for extraordinary relief in Oklahoma is whether the petitioner has a clear legal right that is being affected by the respondent's exercise of excessive judicial or administrative force (a writ of prohibition) or his failure to exercise proper judicial or administrative force (a writ of mandamus), and the inadequacy of other relief (such as an appeal).

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5. Addressing mootness questions

The Oklahoma courts have not addressed the issue of mootness in the context of the reporter’s privilege.

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6. Relief

In granting extraordinary relief, the Supreme Court can direct any action it deems appropriate.  In one case of which we are aware, the district court denied the motion to quash filed on behalf of a television station reporter and directed the reporter to disclose the content of her unpublished communications with sources.  The Supreme Court assumed jurisdiction and granted an extraordinary writ “prohibiting the respondent judge, or any other judge of the respondent district court, from enforcing a subpoena directed to the petitioner [the reporter].”  The court cited the journalist’s privilege statute, Okla. Stat. tit. 12, § 2506(B), as authority.  Slip op., Tate v. Boyd, No. 94405 (Okla. Sup. Ct. April 24, 2000).

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IX. Other issues

A. Newsroom searches

We are not aware of any newsroom search conducted in Oklahoma.  Oklahoma does not have any statute similar to the federal Privacy Protection Act, 42 U.S.C. § 2000aa.

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B. Separation orders

We are not aware of any use of a separation order in Oklahoma.

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C. Third-party subpoenas

We are not aware of any circumstance in which subpoenas to third parties have been used in an Oklahoma proceeding as a way of discovering a reporter’s sources.  Under general principles of Oklahoma law, a reporter would presumably have the right to intervene in the proceeding to assert his or her interest in protecting the identity of sources or the content of unpublished information, although the risk of intervention and submitting to the jurisdiction of the court would have to be carefully weighed.

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D. The source's rights and interests

We are not aware of any instances in which sources have intervened anonymously to halt disclosure of their identities or have sued after disclosure.

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