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Oregon

Reporter's Privilege Compendium

Duane A. Bosworth, Esq.
Derek D. Green, Esq.
Davis Wright Tremaine LLP
1300 SW Fifth Avenue, Suite 2400
Portland, Oregon 97201
(503) 241-2300 (Telephone)
(503) 778-5299 (Fax)
duanebosworth@dwt.com
derekgreen@dwt.com

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I. Introduction: History & Background

Oregon's reporter's privilege is found in ORS 44.510 to 44.540. With exceptions for information in a defamation action, and in some cases, information required under Criminal Compulsory Process, the privilege is absolute, protecting not just confidential sources but all unpublished information of any sort. There is some lingering question over "eye witness" testimony from a reporter concerning events actually perceived by the reporter.

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II. Authority for and source of the right

The primary source for the reporter's privilege in Oregon is ORS 44.510-540.

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A. Shield law statute

1.ORS 44.510: Definitions for ORS 44.510 to ORS 44.540.

As used in ORS 44.510 to 44.540, unless the context requires otherwise:

(1) "Information" has its ordinary meaning and includes, but is not limited to, any written, oral, pictoral or electronically recorded news or other data.

(2) "Medium of communication" has its ordinary meaning and includes, but is not limited to, any newspaper, magazine or other periodical, book, pamphlet, news service, wire service, news or feature syndicate, broadcast station or network, or cable television system. Any information which is a portion of a governmental utterance made by an official or employee of government within the scope of the official's or employee's governmental function, or any political publication subject to ORS 260.532, is not included within the meaning of "medium of communication."

(3) "Processing" has its ordinary meaning and includes, but is not limited to, the compiling, storing and editing of information.

(4) "Published information" means any information disseminated to the public.

(5) "Unpublished information" means any information not disseminated to the public, whether or not related information has been disseminated. "Unpublished information" includes, but is not limited to, all notes, outtakes, photographs, tapes or other data of whatever sort not themselves disseminated to the public through a medium of communication, whether or not published information based upon or related to such material has been disseminated.

2.ORS 44.520: Limitation on compellable testimony from media persons; search of media persons' papers, effects or work premises prohibited; exception.

(1)No person connected with, employed by or engaged in any medium of communication to the public shall be required by a legislative, executive or judicial officer or body, or any other authority having power to compel testimony or the production of evidence, to disclose, by subpoena or otherwise:

(a)The source of any published or unpublished information obtained by the person in the course of gathering, receiving or processing information for any medium of communication to the public; or

(b)Any unpublished information obtained or prepared by the person in the course of gathering, receiving or processing information for any medium of communication to the public.

(2)No papers, effects or work premises of a person connected with, employed by or engaged in any medium of communication to the public shall be subject to a search by a legislative, executive or judicial officer or body, or any other authority having power to compel the production of evidence, by search warrant or otherwise. The provisions of this subsection, however, shall not apply where probable cause exists to believe that the person has committed, is committing or is about to commit a crime.

3.ORS 44.530: Application of ORS 44.520

(1)ORS 44.520 applies regardless of whether a person has disclosed elsewhere any of the information or source thereof, or any of the related information.

(2)ORS 44.520 continues to apply in relation to any of the information, or source thereof, or any related information, even in the event of subsequent termination of a person's connection with, employment by or engagement in any medium of communication to the public.

(3)The provisions of ORS 44.520 (1) do not apply with respect to the content or source of allegedly defamatory information, in civil action for defamation wherein the defendant asserts a defense based on the content or source of such information.

4.ORS 44.540: Effect of informant as a witness

If the informant offers the informant as a witness, it is deemed a consent to the examination also of a person described in ORS 44.520 on the same subject.

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B. State constitutional provision

Article I, §8 of the Oregon Constitution states that "no law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever . . ."

Prior to the enactment of the media shield law, the Oregon Supreme Court held that reporters have no state constitutional right to refuse to testify as to the identity of a confidential source before grand juries. State v. Buchanan, 250 Or. 244, 436 P2d 729 (1968). The Court of Appeals dismissed a state constitutional basis for privilege where criminal defendants sought unpublished

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C. Federal constitutional provision

D. Other sources

III. Scope of protection

A. Generally

The reporter's privilege in Oregon has an exceptionally strong statutory basis.

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B. Absolute or qualified privilege

The reporter's privilege in Oregon is absolute except: a) with respect to the content or source of allegedly defamatory information in a civil action in which the defendant asserts a defense based on the content or source of such information; and b) in cases where criminal defendants have the right under Article 1, Section 11 of the Oregon Constitution to evidence that is material and favorable.

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C. Type of case

1. Civil

The privilege under ORS 44.520 is essentially absolute, except regarding information which forms the basis of a defense to a defamation claim. McNabb v. Oregonian Publishing Co., 69 Or. App. 136, 685 P.2d 458 (1984).

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2. Criminal

The privilege may be overcome by a criminal defendant with a showing that the evidence withheld is both material and favorable to the criminal defendant. State ex rel Meyers v. Howell, 86 Or. App. 570, 740 P.2d 792 (1987); State v. Pelham, 136 Or. App. 336, 901 P.2d 972 (1995).

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3. Grand jury

ORS 44.520 prohibits any judicial body (or any authority having the ability to compel testimony) from compelling the testimony of a reporter. An earlier state Supreme Court decision, in which both state and federal constitutional claims of privilege were rejected, invited this legislative response. State v. Buchanan, 250 Or. 244 436 P.2d 729 (1968).

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D. Information and/or identity of source

ORS 44.520 specifically protects a reporter's source for either published or unpublished information, including that which could implicitly identify a source.

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E. Confidential and/or nonconfidential information

ORS 44.520 makes no distinction in the protection of confidential or non-confidential information.

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F. Published and/or non-published material

The privilege in Oregon specifically protects all unpublished information and additionally the sources of any information, whether or not published. ORS 44.520(1)(1)(2).

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G. Reporter's personal observations

"Information obtained" in the course of news gathering does not include a cameraman's personal observations to the extent that the observations were of events taking place in public, were made with the naked eye, and did not relate to work product, informants or confidential sources. State v. Pelham, 136 Or. App. 336, 344, 901 P.2d 972 (1995).

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H. Media as a party

The scope of the privilege does not depend on whether the media is a party to the litigation, except that it does not apply in a civil action for defamation in which a defendant asserts a defense based on the content or source of otherwise privileged information. This exception to the shield law applies in any defamation action in which any defendant not only a media defendant asserts a defense based on the content or source of such information. Brown v. Gatti, 195 Or. App. 695, 99 P.3d 199 (2004), aff'd in part and rev'd in part on other grounds, 341 Or. 452, 145 P.3d 130 (2006). In Brown, the Oregon Court of Appeals expressly rejected the argument the exception is limited to instances in which a media defendant asserts a defense based on the content or source of otherwise privileged information.  Id. at 712-13.

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I. Defamation actions

As noted above, the privilege does not apply in a civil action for defamation in which any defendant, whether media or otherwise, asserts a defense based on the content or source of otherwise privileged information.

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IV. Who is covered

Oregon's reporter's privilege extends to every person engaged in any medium of newsgathering.

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A. Statutory and case law definitions

1. Traditional news gatherers

a. Reporter

ORS 44.520 protects any person "connected with, employed by or engaged in any medium of communication to the public."

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b. Editor

ORS 44.520 protects any person "connected with, employed by, or engaged in any medium of communication to the public."

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c. News

ORS 44.510 defines the scope of the privilege as protecting a "medium of communication." "Medium of communication" "has its ordinary meaning and includes, but is not limited to, any newspaper, magazine or other periodical, book, pamphlet, news service, wire service, new or feature syndicate, broadcast station or network, or cable television system. Any information which is a portion of a governmental utterance made by an official or employee of government within the scope of his or her governmental function, or any political publication, is not included within the meaning of 'medium of communication.'"

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d. Photo journalist

ORS 44.510 expressly includes "pictorial or electronically recorded news or other data," and therefore the product of photojournalists is protected. State ex rel Meyer v. Howell, 86 Or. App. 570, 740 P.2d 792 (1987). A television cameraman was required to testify as to his personal observations, however. State v. Pelham, 136 Or. App. 336, 901 P.2d 972 (1995).

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e. News organization/medium

ORS 44.520 protects anyone "connected with, employed by or engaged in any medium of communication to the public." ORS 44.510 gives "medium of communication" its ordinary meaning.

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2. Others, including non-traditional news gatherers

There is little case law on this topic. Note that "medium of communication" is expansive enough that it includes "pamphlet."  However, in Obsidian Finance Group, LLC v. Cox, a federal district court in Oregon held that an “investigative blogger” that fails to show that she is affiliated with “any newspaper, magazine, periodical, book, pamphlet, news service, wire service, news or feature syndicate, broadcast station or network, or cable television system” would not be entitled to the protections of the media shield statute. Obsidian Fin. Grp., LLC v. Cox, No. CV-11-57-HZ, 2011 WL 5999334, at *1 (D. Or. Nov. 30, 2011).  The subsequent appellate decision in the case did not address the media shield law. See 740 F.3d 1284 (9th Cir. 2014).

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B. Whose privilege is it?

The privilege under ORS 44.520 belongs to the reporter. The statute on its face does not provide protection to the source of the reporter's information. There is no statutory or case law addressing this issue.

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V. Procedures for issuing and contesting subpoenas

Oregon State Courts are bound by the Oregon Rules of Civil Procedure ("ORCP") and the Uniform Trial Court Rules (“UTCR”). In addition, individual counties may have supplemental "Local Rules" that contain procedural requirements. These rules should be consulted.

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A. What subpoena server must do

1. Service of subpoena, time

Service of a subpoena must be made within reasonable time to allow for preparation and travel. ORCP 55D(1). If a subpoena commands production of books, papers or tangible things and it is not accompanied by a demand to appear at trial, or hearing or at a deposition, a copy of the subpoena must be served on each party to the litigation at least seven days before it is served on the person required to produce the documents. Additionally, the subpoena shall not require production less than 14 days from date of service absent court order. ORCP 55D(1)

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2. Deposit of security

None required under the ORCP.

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3. Filing of affidavit

None required under the ORCP.

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4. Judicial approval

None required under the ORCP, except for any requested shortening of the time in which to respond.

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5. Service of police or other administrative subpoenas

No statutory or case law addressing this issue.

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B. How to Quash

1. Contact other party first

See UTCR 5.010 regarding conferral on motions.

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2. Filing an objection or a notice of intent

A party may file objections within 14 days to a subpoena to produce records without a command to also appear .  ORCP 55B.  ORCP 55B also allows the filing of a motion to quash.

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3. File a motion to quash

a. Which court?

The motion to quash should be filed in the same court as the court hearing the case at issue.

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b. Motion to compel

The party subpoenaed should move to quash before the appearance date and not await a motion to compel.

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c. Timing

The motion to quash must be filed “promptly,” and at or before the time specified in the subpoena.  As a practical matter, a motion should be filed as soon as possible and an attempt made to schedule a hearing on that motion.

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d. Language

Motions to quash are made pursuant to the shield law, ORS 44.510 et. seq.

See the UTCRs and local court rules for specific formatting requirements of the motion.  Motions must state whether oral argument is requested -- and it should be --- and whether argument is requested by telephone, which may be permitted if counsel for the person subpoenaed has his or her office located more than 25 miles from the courthouse. The motion should then state the name and telephone numbers of the attorneys for all parties, whether court reporting services are requested, and the length of the requested hearing.  The motion must be accompanied by a statement of points and authorities or a memorandum of law.

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e. Additional material

No additional material is required.

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4. In camera review

a. Necessity

No law or case law directs a court to conduct an in camera review of materials or interview the reporter before deciding on a motion to quash.

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No case law or statute on this subject.

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c. Consequences of refusing

No Oregon statute or case specifically addresses this, but it would probably result in a finding of contempt.

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5. Briefing schedule

In the ordinary course, a party opposing a motion has 14 days from service in which to file an opposition, and a reply memorandum may be filed within 7 days thereafter. Unless the filing is personally served on the opposing party's counsel, three days are added to these times to account for service. See Uniform Trial Court Rules 5.030; ORCP 10.  As a practical matter, a motion to quash is usually handled on an expedited basis. Oregon's various trial courts may have specific procedures for requesting expedited treatment of the motion, set forth in their local rules.

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6. Amicus briefs

Amicus briefs are not typically filed in Oregon trial courts, but may be in Oregon's appellate courts, pursuant to Oregon Rule of Appellate Procedure 8.15. Statewide interested parties include the Oregon Newspaper Publishers Association (contact information at http://orenews.com), and the Oregon Association of Broadcasters (contact information at https://www.theoab.org).

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VI. Substantive law on contesting subpoenas

A. Burden, standard of proof

There are no statutory or case law rules regarding standard of proof, except that in arguing that compulsory process entitles a criminal defendant to overcome the privilege, the defendant must establish that the information sought is both material and favorable. State ex rel Meyer v. Howell, 86 Or. App. 570, 579, 740 P.2d 792, 797 (1987).

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B. Elements

1. Relevance of material to case at bar

In a criminal matter, the defendant must show that the information will be both material and favorable. In a civil defamation matter, the information sought must be the basis of a defense asserted.

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2. Material unavailable from other sources

The existence of evidence not protected by the shield law which can prove the same point is a factor that weighs against a criminal defendant's subpoena. Meyer, 86 Or. App. at 579. There are no such considerations in civil matters and the privilege has been upheld even when no other material is available. McNabb v. Oregonian Publishing Co., 69 Or. App. 136, 685 P.2d 458 (1984).

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a. How exhaustive must search be?

No statutory or case law addressing this issue.

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

No statutory or case law addressing this issue.

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c. Source is an eyewitness to a crime

The Court of Appeals has held that a cameraman must testify to his personal observation of events that took place in public, and which did not relate to work product, informants or confidential sources. State v. Pelham, 136 Or. App. 336, 901 P.2d 972 (1995).

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3. Balancing of interests

Balancing occurs only in criminal matters in which a defendant asserts a constitutional compulsory process claim.

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4. Subpoena not overbroad or unduly burdensome

No statutory or case law addressing this issue.

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5. Threat to human life

No statutory or case law addressing this issue.

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6. Material is not cumulative

In a criminal case, information is not material if there is other evidence which can prove the same point. State v. Pelham, 136 Or. App. 336, 901 P.2d 972 (1995); State ex rel Meyers v. Howell, 86 Or. App. 570, 740 P.2d 792 (1987).

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7. Civil/criminal rules of procedure

No statutory or case law addressing this issue.

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8. Other elements

C. Waiver or limits to testimony

1. Is the privilege waivable?

No statutory or case law addressing this issue.

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2. Elements of waiver

a. Disclosure of confidential source's name

No statutory or case law addressing this issue.

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b. Disclosure of non-confidential source's name

No statutory or case law addressing this issue.

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c. Partial disclosure of information

The shield statute protects unpublished information even when published information based upon or related to such materials has been disseminated. ORS 44.510(5).

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d. Other elements

3. Agreement to partially testify act as waiver?

No statutory or case law addressing this issue.

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VII. What constitutes compliance?

A. Newspaper articles

The testimony of a newsperson is not needed to authenticate articles. Printed materials purporting to be newspapers or periodicals are self-authenticating. Oregon Evidence Code 902(6).

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B. Broadcast materials

Authentication may be made by any witness with knowledge that a matter is what it is claimed to be, i.e., material actually broadcast. Oregon Evidence Code 901(2)(a).

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C. Testimony vs. affidavits

No further statutory or case law addressing this issue.

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D. Non-compliance remedies

1. Civil contempt

a. Fines

No statutory or case law addressing this issue.

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b. Jail

No statutory or case law addressing this issue.

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2. Criminal contempt

No statutory or case law addressing this issue.

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3. Other remedies

No statutory or case law addressing this issue.

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VIII. Appealing

A. Timing

1. Interlocutory appeals

There is no statutory or case law addressing this issue.  However, by analogy, a trial court’s order denying a motion to quash and compelling the disclosure of information may be the proper subject of mandamus review.  See, e.g., Assisted Living Concepts, Inc. v. Fellows, 244 Or. App. 475, 481 n.4 (holding denial of motion to quash subpoena & grant of motion to compel production was not immediately appealable under ORS 19.205(2), but noting that review could be permissible under mandamus procedure or in review of contempt); Brumwell v. Premo, 355 Or. 543, 551 (2014) (mandamus remedy appropriate to protect against disclosure of privileged communications); cf. State ex rel. Meyers v. Howell, 86 Or. App. 570 (1987) (reviewing contempt order against newspaper for refusing, on the basis of the media shield law, to produce unpublished photographs).

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2. Expedited appeals

No statutory or case law addressing this issue.

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B. Procedure

1. To whom is the appeal made?

From an Oregon trial court, or an administrative hearing, the Oregon Court of Appeals accepts appeals pursuant to ORS Chapter 19 and the Oregon Rules of Appellate Procedure.  The Supreme Court has jurisdiction over mandamus proceedings.  See ORS Chapter 34.  As discussed above in “Timing,” the proper route for an appeal may depend upon the circumstances of the order being appealed from – i.e., review from an order granting a motion to quash on the basis of the shield law is likely to follow the standard appellate path through the Court of Appeals after a final judgment, whereas review from an order granting a motion to compel and ordering the production of the privileged material may need to be reviewed through mandamus, or through any subsequent contempt proceedings should the party not disclose the information.

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2. Stays pending appeal

ORS 19.330 states that an appeal does not automatically stay a trial court's judgment and allows a party to seek a stay. A party may seek review of a trial court's grant or denial of a stay by filing a motion no later than 14 days after entry of judgment. ORS 19.360.

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3. Nature of appeal

No statutory or case law addressing this issue.

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4. Standard of review

No statutory or case law addressing this issue.

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5. Addressing mootness questions

See State ex rel. Meyers v. Howell, 86 Or. App. 570 (1987) concerning mootness questions in the context of contempt.

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6. Relief

No statutory or case law addressing this issue.

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IX. Other issues

A. Newsroom searches

No case law addresses newsroom searches or the applicability of the federal Privacy Protection Act or a similar provision in the state statutory privilege. ORS 44.520(2) provides:

No papers, effects or work premises of a person connected with, employed by or engaged in any medium of communication to the public shall be subject to a search by a legislative, executive or judicial officer or body, or any other authority having power to compel the production of evidence, by search warrant or otherwise. The provisions of this subsection, however, shall not apply where probable cause exists to believe that the person has committed, is committing or is about to commit a crime.

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B. Separation orders

No statutory or case law addressing this issue.

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C. Third-party subpoenas

No statutory or case law addressing this issue.

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D. The source's rights and interests

No statutory or case law addressing this issue.

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