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Rhode Island

Reporters Privilege Compendium

Updated by RCFP staff from an earlier edition by Joseph V. Cavanagh, Jr., Staci L. Kolb, Blish & Cavanagh, LLP, Providence, Rhode Island

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I. Introduction: History & Background

It has been said that the Rhode Island Shield Law is a "suit of journalistic armor," effective so long as the silver bullets of the statute's few exceptions do not apply. It was originally passed in the early 1970's amidst mounting national concerns for safeguarding journalistic privilege and freedom of the press.

Rhode Island's Shield Law is codified in Rhode Island General Laws § 9-19.1-1, et seq., and is also known as the "Newsman's Privilege Act." It first became effective in 1971. Rhode Island is the only state in New England that has a Shield Law. In passing the Act, the Rhode Island General Assembly "plainly intended to respond to the legitimate needs of a free and dynamic press by according comprehensive safeguards to journalists and allied professionals against the compelled disclosure of confidential information and sources." Fischer v. McGowan, 585 F. Supp. 978, 984 (D.R.I. 1984). In essence, the Newsman's Privilege Act protects the disclosure of confidential information obtained by a person in his or her capacity as a news gatherer. R.I. Gen. Laws § 9-19.1-2. The protection does not apply if the information is already public, if the information is defamatory and the defendant is relying on the source of the information as a defense, or if the information should have been secret because of grand jury proceedings.

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II. Authority for and source of the right

A. Shield law statute

The Rhode Island Shield Law, known as the "Newsman's Privilege Act", is found in Rhode Island General Laws § 9-19.1-1 through § 9-19.1-3. It was enacted in 1971 and subsequently amended in 1997.

The statute provides:

Except as provided in § 9-19.1-3, no person shall be required by any court, grand jury, agency, department, or commission of the state to reveal confidential association, to disclose any confidential information, or to disclose the source of any confidential information received or obtained by him or her in his or her capacity as a reporter, editor, commentator, journalist, writer, correspondent, news photographer, or other person directly engaged in the gathering or presentation of news for any accredited newspaper, periodical, press association, newspaper syndicate, wire service, or radio or television station.

R.I. Gen. Laws § 9-19.1-2. The Act further explains that:

(a) The privilege conferred by § 9-19.1-2 shall not apply to any information which has at any time been published, broadcast, or otherwise made public by the person claiming the privilege.

(b) The privilege conferred by § 9-19.1-2 shall not apply:

(1) To the source of any allegedly defamatory information in any case where the defendant, in a civil action for defamation, asserts a defense based on the source of the information; or

(2) To the source of any information concerning the details of any grand jury or other proceeding which was required to be secret under the laws of the state.

(c) In any case where a person claims a privilege conferred by this statute, the person seeking the information or the source of the information may apply to the superior court for an order divesting the privilege. If the court, after hearing the parties, shall find that there is substantial evidence that disclosure of the information or of the source of the information is necessary to permit a criminal prosecution for the commission of a specific felony, or to prevent a threat to human life, and that the information or the source of the information is not available from other prospective witnesses, the court may make such order as may be proper under the circumstance. Any such order shall be appealable under the provisions of chapter 24 of title 9.

R.I. Gen. Laws § 9-19.1-3. For the purposes of these sections, a newspaper is defined as "one that is issued at regular intervals and ha[s] a paid circulation." R.I. Gen. Laws § 9-19.1-1.

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B. State constitutional provision

Rhode Island's Shield Law, or the Newsman's Privilege Act, is statutory. See R.I. Gen. Laws §§ 9-19.1-1 through 9-19.1-3.

In Outlet Communications, Inc. v. State, 588 A.2d 1050 (R.I. 1991), a television station filed a motion to quash a grand jury subpoena seeking the unaired portion of a filmed interview with a person wanted by state authorities in connection with an ongoing grand jury investigation. The Superior Court refused to accept the television station's claim that it enjoyed a state constitutional privilege against disclosure of the materials in question under article I, section 20, of the Rhode Island Constitution. Id. at 1052.

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C. Federal constitutional provision

Rhode Island's Shield Law, or the Newsman's Privilege Act, is statutory. See R.I. Gen. Laws §§ 9-19.1-1 through 9-19.1-3.

In Outlet Communications, Inc. v. State, 588 A.2d 1050 (R.I. 1991), a television station filed a motion to quash a grand jury subpoena seeking the unaired portion of a filmed interview with a person wanted by state authorities in connection with an ongoing grand jury investigation. The Superior Court refused to accept the television station's claim that it enjoyed a constitutional privilege against disclosure of the materials in question under the U.S. Constitution. Id. at 1052.

Likewise, in Capuano v. Outlet Co., 579 A.2d 469 (R.I. 1990), the Rhode Island Supreme Court stated that its reading of Branzburg v. Hayes, 408 U.S. 65 (1972), together with Herbert v. Lando, 441 U.S. 153 (1979), lead "to the conclusion that the Supreme Court of the United States has rejected the proposition that there is a First Amendment privilege accorded to newspersons to refuse to disclose information, confidential or otherwise, which is necessary to the determination of a litigated case." 579 A.2d at 474. Capuano further found that there was no First Amendment privilege, qualified or otherwise, allowing a media defendant or newsperson to refuse to divulge confidential sources and the information from confidential sources in a defamation action when this information is both relevant and essential to plaintiffs in sustaining their heavy burden of proof. Id.

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D. Other sources

There are no other sources for the privilege.

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III. Scope of protection

A. Generally

A member of the news media has a privilege against disclosing the source of any confidential information. R.I. Gen. Laws § 9-19.1-2. However, there are some specific qualifications to this privilege. See generally R.I. Gen. Laws § 9-19.1-3. For example, the privilege is inapplicable if the information is already public, if the information is defamatory and the defendant is relying on the information as part of a defense, or if the information should remain secret because of grand jury proceedings. Id.

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B. Absolute or qualified privilege

The privilege is qualified. See R.I. Gen. Laws § 9-19.1-3. The privilege does not apply if the information is already public, if the information is defamatory and the defendant is relying on the information as part of a defense, or if the information should remain secret because of grand jury proceedings. Id.

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C. Type of case

1. Civil

Rhode Island General Laws § 9-19.1-1 et seq., known as the Newsman's Privilege Act or the Rhode Island Shield Law, does not differentiate between subpoenas issued in civil or criminal cases. Rather, the privilege mandates that "no person" shall be required by "any court, grand jury, agency, department, or commission of the state" to disclose confidential information or to reveal confidential sources under most circumstances. R.I. Gen. Laws §§ 9-19.1-1 through 9-19.1-3.

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2. Criminal

Rhode Island General Laws § 9-19.1-1 et seq., known as the Newsman's Privilege Act or the Rhode Island Shield Law, does not differentiate between subpoenas issued in civil or criminal cases. Rather, the privilege mandates that "no person" shall be required by "any court, grand jury, agency, department, or commission of the state" to disclose confidential information or to reveal confidential sources under most circumstances. R.I. Gen. Laws §§ 9-19.1-1 through 9-19.1-3.

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3. Grand jury

The privilege is explicitly applicable to grand jury subpoenas. R.I. Gen. Laws § 9-19.1-2. Accordingly, a grand jury subpoena would presumably be treated no differently than any other subpoena.

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D. Information and/or identity of source

The plain language of the statute applies to protect a person from: "reveal[ing] confidential association, . . . disclos[ing] any confidential information, or disclos[ing] the source of any confidential information received or obtained." R.I. Gen. Laws § 9-19.1-2. Accordingly, the statute protects both the identity of a source and information implicitly identifying the source of information.

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E. Confidential and/or nonconfidential information

The privilege does not apply to protect information that is not confidential, but the statute does not define the term "confidential." The Rhode Island Supreme Court has determined that the confidential information covered by the shield law includes information "given either in secret or in confidence to the news entity that claims the privilege." Outlet Communications, Inc. v. State, 588 A.2d 1050, 1052 (R.I. 1991). In Outlet Communications, a television station filed a motion to quash a grand jury subpoena for the unaired portion of an interview on a public sidewalk with a person wanted by authorities in connection with an ongoing grand jury investigation. In affirming the Superior Court's refusal to quash the subpoena, the Rhode Island Supreme Court stated that the circumstances surrounding the acquisition of this information -- i.e., the filming of the interview on a public sidewalk -- rendered the information "anything but secret or confidential." Id.

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F. Published and/or non-published material

The privilege specifically does not apply to "any information which has at any time been published, broadcast, or otherwise made public by the person claiming the privilege." R.I. Gen. Laws § 9-19.1-3(a). The material must be confidential. See also, e.g., Outlet Communications, Inc. v. State, 588 A.2d 1050 (R.I. 1991).

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G. Reporter's personal observations

The statute is silent and there are no cases on point that directly address a reporter's personal observations.

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H. Media as a party

The Act does not differentiate between cases where the media is a party and where it is not. In Capuano v. Outlet Co., 579 A.2d 469 (R.I. 1990), the television station argued that the party against whom disclosure is ordered must be a party defendant. The court disagreed but did not specifically rule on the issue.

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I. Defamation actions

The privilege is qualified with respect to defamation cases, in that it does not apply to the "source of any allegedly defamatory information in any case where the defendant, in a civil action for defamation, asserts a defense based on the source of the information." R.I. Gen. Laws § 9-19.1-3(b)(1).

The Rhode Island Supreme Court discussed the qualification of this privilege with respect to defamation cases in Giuliano v. Providence Journal Co., 704 A.2d 220 (R.I. 1997) and Lett v. Providence Journal Co., 703 A.2d 1125 (R.I. 1997). These defamation cases were instituted separately after the newspaper published articles about the two plaintiffs. The Superior Court ordered the newspaper to reveal the identity of several undisclosed confidential sources for the articles, and the newspaper appealed. In two nearly identical decisions, the Supreme Court remanded the Giuliano and Lett cases for further proceedings on the newspaper's use of these confidential sources. The Court was unable to determine, from the record on appeal, whether the newspaper was asserting the defense of a good faith belief in the truthfulness and accuracy of the information in the articles and whether such belief was based in part upon information from these confidential sources. The two cases were remanded for an evidentiary hearing on these issues and further proceedings.

Similarly, in Capuano v. Outlet Co., 579 A.2d 469 (R.I. 1990), the owners of waste collection and disposal companies brought an action against a television station that issued news reports stating that plaintiffs were connected with or members of organized crime. In answers to interrogatories, the television station pleaded a defense of good faith reliance "based on the confidential sources," yet it refused to disclose the identity of the confidential sources on which its defense of good faith reliance was based. Thus, the Court found that the television station brought itself within the precise terms of the exception of the Newsman's Privilege Act. The Court held that when a plaintiff is required to show by clear and convincing evidence that the defendant acted with actual malice, the plaintiffs must have the opportunity to examine the confidential sources on which the defendant relies. Id. at 476-477. The court cited with approval the conclusion of the Rhode Island District Court in Fischer v. McGowan, 585 F. Supp. 978 (D.R.I. 1984), that "where a defendant pleads a defense of good faith and further testifies that the [defamatory] article was based upon a reliable [confidential] source, the statutory privilege will be deemed to have been waived." Id., citing Fischer, supra, 585 F. Supp. at 988.

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IV. Who is covered

The Rhode Island Shield Law, or the Newsman's Privilege Act, broadly applies to confidential information "received or obtained [by an individual] in his or her capacity as a reporter, editor, commentator, journalist, writer, correspondent, news photographer, or other person directly engaged in the gathering or presentation of news for any accredited newspaper, periodical, press association, newspaper syndicate, wire service, or radio or television station." R.I. Gen. Laws § 9-19.1-2.

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A. Statutory and case law definitions

1. Traditional news gatherers

a. Reporter

The Rhode Island Shield Law applies to "reporters" in that "no person shall be required by any court, grand jury, agency, department or commission of the state to reveal confidential association, or to disclose the source of any confidential information received or obtained by him or her in his or her capacity as a reporter." R.I. Gen. Laws § 9-19.1-2.

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b. Editor

The Rhode Island Shield Law applies to "editors" in that "no person shall be required by any court, grand jury, agency, department or commission of the state to reveal confidential association, or to disclose the source of any confidential information received or obtained by him or her in his or her capacity as . . . editor." R.I. Gen. Laws § 9-19.1-2.

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c. News

The term "news" is not defined by the Rhode Island Shield Law. The only specific term defined in the Newsman's Privilege Act is "newspaper" or "periodical" to mean one that is issued at regular intervals and has a paid circulation. R.I. Gen. Laws § 9-19.1-1. However, the Rhode Island Shield Law or Newsman's Privilege Act applies to any "person directly engaged in the gathering or presentation of news for any accredited newspaper, periodical, press association, newspaper syndicate, wire service, or radio or television station." R.I. Gen. Laws § 9-19.1-2.

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d. Photo journalist

The term "photo journalist" is not specifically mentioned in the Rhode Island Shield Law. However, the Rhode Island Shield Law applies to "news photographers" in that "no person shall be required by any court, grand jury, agency, department, or commission of the state to reveal confidential association, or to disclose the source of any confidential information received or obtained by him or her in his or her capacity as a . . . news photographer." R.I. Gen. Laws § 9-19.1-2.

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e. News organization/medium

The statute specifically applies to "any person" who receives any confidential information in his or her capacity as a "reporter, editor, commentator, journalist, writer, correspondent, news photographer, or other person directly engaged in the gathering or presentation of news for any accredited newspaper, periodical, press association, newspaper syndicate, wire service, or radio or television station." R.I. Gen. Laws § 9-19.1-2. The Rhode Island Shield Law defines "newspaper" or "periodical" to mean one that is issued at regular intervals and has a paid circulation. R.I. Gen. Laws § 9-19.1-1.

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2. Others, including non-traditional news gatherers

The statute specifically applies to "any person" who receives any confidential information in his or her capacity as a "reporter, editor, commentator, journalist, writer, correspondent, news photographer, or other person directly engaged in the gathering or presentation of news for any accredited newspaper, periodical, press association, newspaper syndicate, wire service, or radio or television station." R.I. Gen. Laws § 9-19.1-2. The Rhode Island Shield Law defines "newspaper" or "periodical" to mean one that is issued at regular intervals and has a paid circulation. R.I. Gen. Laws § 9-19.1-1.

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B. Whose privilege is it?

According to the express terms of the statute, the privilege belongs to the "person" who obtained the confidential information. R.I. Gen. Laws § 9-19.1-2.

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V. Procedures for issuing and contesting subpoenas

A. What subpoena server must do

1. Service of subpoena, time

The service of a subpoena in a civil matter is governed by Rhode Island Superior Court Rules of Civil Procedure, Rule 45. It may be served in a manner that allows a party "reasonable time" to comply. The Rule also provides that it:

may be served by the sheriff, by the sheriff's deputy, by a constable, or by any other person who is not a party and is not less than 18 years of age." Service of a subpoena upon a person named therein shall be made by delivering a copy thereof to such person and, if the person's attendance is commanded, by tendering to that person the fees for one day's attendance and the mileage allowed by law. A subpoena may be served at any place within the state.

R.I. Superior Court Rules of Civil Procedure, Rule 45.

Likewise, in criminal cases, service of subpoena is governed by Rule 17 of the Rhode Island Superior Court or District Court Rules of Criminal Procedure, which has identical language. R.I. Rules of Criminal Procedure, Rule 17. The Rule provides:

A subpoena may be served by the sheriff, by the sheriff's deputy, by a constable, or by any other who is not a party and who is not less than 18 years of age. Service of a subpoena shall be made by delivering a copy thereof to the person named and by tendering to him the fee for one day's attendance and the mileage allowed by law. When the subpoena is issued in behalf of the State or an officer or agency thereof, fees and mileage need not be tendered.

R.I. Rules of Criminal Procedure, Rule 17.

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2. Deposit of security

There is no statutory or case law addressing this issue.

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3. Filing of affidavit

There is no statutory or case law addressing this issue.

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4. Judicial approval

Judicial approval is not needed.

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5. Service of police or other administrative subpoenas

There is no statutory or case law addressing this issue.

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B. How to Quash

Quashing a subpoena issued in civil cases is governed by Rhode Island Superior Court Rules of Civil Procedure, Rule 45(c)(3)(A). It provides that:

on timely motion, the court by which a subpoena was issued shall quash or modify the subpoena if it:

(i) Fails to allow reasonable time for compliance;

(ii) Requires disclosure of privileged or other protected matter and no exception or waiver applies, or

(iii) Subjects a person to undue burden.

Rhode Island Rules of Civil Procedure, Rule 45(3)(A).

In criminal cases, the Rhode Island Supreme Court articulated the standard for evaluating the issuance of subpoenas under Rule 17(c) in State v. DiPrete, 698 A.2d 223, 225 (R.I. 1997) ("Because the need for a subpoena often turns on the determination of issues of fact, enforcement of a pretrial subpoena is left within the discretion of the trial court.").

Pursuant to Rule 17(c), the court upon motions made may quash or modify the subpoena. Rule 17(c), R.I. Superior Court Rules of Criminal Procedure.

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1. Contact other party first

Although there is no specific requirement, it is always recommended that attempts be made to contact the party issuing the subpoena prior to filing a Motion to Quash. Often times, the request can be narrowed and courts appreciate all good faith efforts to confer with opposing counsel prior to filing motions.

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2. Filing an objection or a notice of intent

It is recommended that a person or entity file a Motion to Quash the Subpoena or a Motion for a Protective Order and not merely object to the subpoena. There are no provisions in Rhode Island law for a "notice of intent."

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3. File a motion to quash

a. Which court?

The motion to quash should be filed in the court in which the subpoena was issued. See R.I. Superior Court Rules of Civil Procedure, Rule 45(c)(3)(A). Likewise, Rule 17(c) of the Rhode Island Rules of Criminal Procedure also allows the court to modify or quash a subpoena. See R.I. Superior Court Rules of Criminal Procedure 17(c).

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b. Motion to compel

The Rhode Island Shield Law allows the following:

In any case where a person claims a privilege conferred by this statute, the person seeking the information or the source of the information may apply to the superior court for an order divesting the privilege. If the court, after hearing the parties, shall find that there is substantial evidence that disclosure of the information or of the source of the information is necessary to permit a criminal prosecution for the commission of a specific felony, or to prevent a threat to human life, and that the information or the source of the information is not available from other prospective witnesses, the court may make such order as may be proper under the circumstance. Any such order shall be appealable under the provisions of chapter 24 of title 9.

R.I. Gen. Laws § 9-19.1-3(c).

However, in most instances, when a subpoena is issued, a Motion to Quash or a Motion for a Protective Order should be filed prior to the subpoenaing party's Motion to Compel.

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c. Timing

A Motion to Quash or a Motion for a Protective Order should be filed as soon as practicable, but in no event should it be filed later than the return date on the subpoena.

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d. Language

While there is no specific language requirement for a Motion to Quash, the party so filing should be prepared to submit a legal memoranda detailing both legal and factual grounds for the Motion.

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e. Additional material

No additional material need be attached to the motion.

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4. In camera review

a. Necessity

There are no requirements that an in camera review of materials occur prior to a court's deciding on a Motion to Quash.

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Because a stay pending an appeal is not automatic in the event of an adverse ruling, the reporter or publisher should attempt to negotiate the stay prior to consenting to an in camera review.

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c. Consequences of refusing

A reporter or publisher could be subject to contempt, fines, sanctions or having their case dismissed.

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5. Briefing schedule

A memorandum of law detailing both legal and factual grounds of the privilege should be filed contemporaneously with the Motion to Quash, which is generally filed ten days before the hearing. However, if the subpoena is issued for an appearance at trial it is likely that a hearing would be had almost immediately. In all cases, a Motion to Quash with an accompanying brief should be filed prior to the return date of the subpoena.

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6. Amicus briefs

Briefs of amicus curiae may be filed with written consent of all parties, or upon leave of the Supreme Court on a motion which identifies the interest of the applicant and the reasons why a brief is desirable. R.I. Supreme Court Rule of Appellate Procedure 16(f).

The Reporters Committee for Freedom of the Press may file amicus briefs in cases involving significant media law issues before a state's appellate courts.

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VI. Substantive law on contesting subpoenas

A. Burden, standard of proof

The Rhode Island Shield Law provides that a party seeking to divest the privilege must show "that there is substantial evidence that disclosure of the information or of the source of the information is necessary to permit a criminal prosecution for the commission of a specific felony, or to prevent a threat to human life, and that the information or the source of the information is not available from other prospective witnesses." R.I. Gen. Laws § 9-19.1-3.

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B. Elements

1. Relevance of material to case at bar

The Rhode Island Shield Law provides that a party seeking to divest the privilege must show "that there is substantial evidence that disclosure of the information or of the source of the information is necessary to permit a criminal prosecution for the commission of a specific felony, or to prevent a threat to human life, and that the information or the source of the information is not available from other prospective witnesses." R.I. Gen. Laws § 9-19.1-3.

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2. Material unavailable from other sources

The Rhode Island Shield Law provides that a party seeking to divest the privilege must show "that there is substantial evidence that disclosure of the information or of the source of the information is necessary to permit a criminal prosecution for the commission of a specific felony, or to prevent a threat to human life, and that the information or the source of the information is not available from other prospective witnesses." R.I. Gen. Laws § 9-19.1-3.

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a. How exhaustive must search be?

Although there are no specific statutes or case law on point, it is presumed that all searches are made in good faith.

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

Although there are no specific statutes or case law on point, it is presumed that all searches are made in good faith.

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c. Source is an eyewitness to a crime

There is no statutory or case law addressing this issue.

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3. Balancing of interests

The Rhode Island Shield Law provides that a party seeking to divest the privilege must show "that there is substantial evidence that disclosure of the information or of the source of the information is necessary to permit a criminal prosecution for the commission of a specific felony, or to prevent a threat to human life, and that the information or the source of the information is not available from other prospective witnesses." Courts may make whatever order may be proper under the circumstance." R.I. Gen. Laws § 9-19.1-3.

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4. Subpoena not overbroad or unduly burdensome

A Motion to Quash may be made on the grounds that the subpoena is too broad and unduly burdensome.

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5. Threat to human life

Under the Rhode Island Shield Law, one circumstance which will warrant divesting of the privilege is where there is substantial evidence that disclosure will "prevent a threat to human life."

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6. Material is not cumulative

The Rhode Island Shield Law provides that a party seeking to divest the privilege must show "that there is substantial evidence that disclosure of the information or of the source of the information is necessary to permit a criminal prosecution for the commission of a specific felony, or to prevent a threat to human life, and that the information or the source of the information is not available from other prospective witnesses." R.I. Gen. Laws § 9-19.1-3.

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7. Civil/criminal rules of procedure

Civil and criminal rules of procedure apply to contest subpoenas.

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8. Other elements

The Rhode Island Shield Law provides that a party seeking to divest the privilege must show "that there is substantial evidence that disclosure of the information or of the source of the information is necessary to permit a criminal prosecution for the commission of a specific felony, or to prevent a threat to human life, and that the information or the source of the information is not available from other prospective witnesses." Rhode Island General Laws § 9-19.1-3.

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C. Waiver or limits to testimony

The privilege does not apply to information which has at any time been published, broadcast, or otherwise made public by the person claiming the privilege. Rhode Island General Laws § 9-19.1-3(a).

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1. Is the privilege waivable?

The issue of waiver is not specifically addressed in the statute, and there are no Rhode Island Supreme Court cases on waiver of the privilege. However, the United States District Court for the District of Rhode Island determined that partial disclosure of confidential sources and/or information does not constitute a waiver of the privilege under the Rhode Island Shield Law. In Fischer v. McGowan, 585 F. Supp. 978 (D.R.I. 1984), plaintiffs sought disclosure of certain unnamed sources of an allegedly libelous article in an Australian newspaper regarding the financial troubles of an America's Cup yacht. The author of the article, who had not been named as a defendant, claimed privilege and moved to quash. Drawing on decisions from other jurisdictions, the court found that the reporter had not waived his privileges under the shield law by disclosing some of his sources or by providing a generic description of the undisclosed sources.

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2. Elements of waiver

a. Disclosure of confidential source's name

There are no statutory provisions or case law on point. However, in Fischer v. McGowan, 585 F. Supp. 978 (D.R.I. 1984), plaintiffs sought to compel disclosure of certain unnamed sources of an allegedly libelous article in an Australian newspaper about the financial troubles of an America's Cup yacht. The author of the article, who had not been named as a defendant, claimed privilege and moved to quash. Drawing on decisions from other jurisdictions, the court found that the reporter had not waived his privileges under the shield law by disclosing some of his sources or by providing a generic description of the undisclosed sources.

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b. Disclosure of non-confidential source's name

In Fischer v. McGowan, 585 F. Supp. 978 (D.R.I. 1984), plaintiffs sought to compel disclosure of certain unnamed sources of an allegedly libelous article in an Australian newspaper about the financial troubles of an America's Cup yacht. The author of the article, who had not been named as a defendant, claimed privilege and moved to quash. Drawing on decisions from other jurisdictions, the court found that the reporter had not waived his privileges under the shield law by disclosing some of his sources or by providing a generic description of the undisclosed sources.

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c. Partial disclosure of information

In Fischer v. McGowan, 585 F. Supp. 978 (D.R.I. 1984), plaintiffs sought to compel disclosure of certain unnamed sources of an allegedly libelous article in an Australian newspaper about the financial troubles of the America's Cup yacht. The author of the article, who had not been named as a defendant, claimed privilege and moved to quash. Drawing on decisions from other jurisdictions, the court found that the reporter had not waived his privileges under the shield law by disclosing some of his sources or by providing a generic description of the undisclosed sources.

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d. Other elements

None.

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3. Agreement to partially testify act as waiver?

There are no cases or statutes on point. However, in Fischer v. McGowan, 585 F. Supp. 978 (D.R.I. 1984), plaintiffs sought to compel disclosure of certain unnamed sources of an allegedly libelous article in an Australian newspaper about the financial troubles of an America's Cup yacht. The author of the article, who had not been named as a defendant, claimed privilege and moved to quash. Drawing on decisions from other jurisdictions, the court found that the reporter had not waived his privileges under the shield law by disclosing some of his sources or by providing a generic description of the undisclosed sources.

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VII. What constitutes compliance?

A. Newspaper articles

Pursuant to Rhode Island Rules of Evidence, Rule 902(6), printed materials purporting to be newspapers or periodicals are self-authenticating.

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B. Broadcast materials

Since there is no statutory provision or case law addressing this issue, the terms of the subpoena would apply.

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C. Testimony vs. affidavits

While a sworn affidavit may take the place of in-court testimony, particularly to merely confirm that an article was true and accurate as published, a subpoena which requires in court testimony should be complied with unless there is prior written confirmation from the attorney that an affidavit would be sufficient.

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D. Non-compliance remedies

1. Civil contempt

Pursuant to Rule 45(e) of the Rhode Island Rules of Civil Procedure, any person who fails to obey a subpoena served upon that person may be deemed in contempt of the court in which the action its pending. Civil contempt is established when it is proved by clear and convincing evidence that a lawful decree was violated. Durfee v. Ocean State Steel, Inc., 636 A.2d 698, 704 (R.I. 1994).

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a. Fines

Fines are not capped and are available against those persons in contempt of a civil order. The purpose of civil contempt sanctions is to coerce the contemnor to comply with the court's order and to compensate the complying party for its losses. Durfee v. Ocean State Steel, Inc., 636 A.2d 698, 704 (R.I. 1994).

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b. Jail

Findings of contempt are within the sound discretion of the trial judge. Durfee v. Ocean State Steel, Inc., 636 A.2d 698, 704 (R.I. 1994).

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2. Criminal contempt

Criminal contempt punishes the contemnor for an act insulting or belittling the authority and dignity of the court. Durfee v. Ocean State Steel, Inc., 636 A.2d 698, 704 (R.I. 1994). Rule 17(g) of the R.I. Superior Court Rules of Criminal Procedure provides that "failure by any person without adequate excuse to obey a subpoena served upon him may be deemed in contempt of the court in which the action is pending." R.I. Superior Court Rules of Criminal Procedure, Rule 17(g).

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3. Other remedies

There is no further statutory or case law addressing this.

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VIII. Appealing

A. Timing

Appeals must be filed within twenty (20) days of final judgment. R.I. Supreme Court Rules of Appellate Procedure 16(L).

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1. Interlocutory appeals

The Supreme Court of Rhode Island will take appeals as of right only from final judgments. Jennings v. Nationwide Ins. Co., 669 A.2d 534, 535 (R.I. 1996). The appropriate route to obtain review of an interlocutory order is by petition for certiorari in accordance with Rule 13 of the Supreme Court Rules of Appellate Procedure. Rule 13 of the Supreme Court Rules of Civil Procedure would govern an appeal from any interlocutory decision.

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2. Expedited appeals

Expedited appeals need to be made by motion.

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B. Procedure

1. To whom is the appeal made?

An appeal of a Superior Court decision is made directly to the Rhode Island Supreme Court.

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2. Stays pending appeal

Pursuant to Rule 8 of the Rhode Island Supreme Court Rules of Appellate Procedure, application for a stay of enforcement pending appeal must be made in the first instance in the trial court. After a notice of appeal is filed, a Motion for a Stay Pending Appeal may be filed in the Supreme Court, or to a justice thereof. The motion "shall show that application to the trial court for relief sought is not practicable or that application has been made to the trial court and denied, with the reasons given by it for denial, or that the action of the trial court did not afford the relief to which the moving party considers himself or herself to be entitled." Rule 8, R.I. Supreme Court Rules of Appellate Procedure. The motion shall also show the "reasons for the relief requested and the facts relied upon, and if the facts are subject to dispute the motion shall be supported by affidavits or other sworn statements or copies thereof. With the application shall be filed such parts of the record as are relevant. Reasonable notice of the application shall be given to all parties." Id.

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3. Nature of appeal

Because an appeal of this nature is likely not from a final judgment, it would be considered interlocutory under Rule 13 of the Rhode Island Supreme Court Rules of Civil Procedure.

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4. Standard of review

Because an appeal of this nature is likely not from a final judgment, it would be considered interlocutory under Rule 13 of the Rhode Island Supreme Court Rules of Civil Procedure.

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5. Addressing mootness questions

There is no statutory or case law addressing this issue.

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6. Relief

The relief requested would generally be dependant upon what was being appealed. However, the Rhode Island Supreme Court is likely to order the trial judge to reconsider issues at stake.

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IX. Other issues

A. Newsroom searches

There is no statutory or case law addressing this issue.

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B. Separation orders

In United States v. Cianci, 378 F.3d 71 (1st Cir. 2004), a well-known radio talk show host became involved in high profile case involving criminal charges brought against the City of Providence's mayor. Although not technically a "news reporter," the radio talk show host appeared regularly at press conferences and court proceedings involving the on-going controversial case against the City's mayor and others allegedly involved in corruption.

In the fall of 2001 the radio talk show host was subpoenaed by a special prosecutor to testify at a deposition involving a video tape that was leaked to the media during the pendency of the federal criminal investigation of the Mayor. The radio talk show host argued that the federal court has recognized a qualified journalist's privilege. The special prosecutor argued that the radio talk show host was not a "journalist." The United States District Court for the District of Rhode Island entered an order indicating that the radio talk show host would have to appear at the deposition, but that he could raise the privilege if he felt that the information sought by certain questions was based on confidential sources.

Subsequently, and while the radio talk show host was "covering" the criminal trial of the mayor, the defense listed him as a possible witness. Due to a sequestration order for all potential witnesses, the radio talk show host initially was prohibited from attending the trial. Ultimately, an agreement with defense counsel was reached whereby the radio talk show host was permitted to be present for the testimony of witnesses who were testifying about matters that were not relevant to the radio talk show host's potential testimony. Thus, he was able to attend most of the trial.

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C. Third-party subpoenas

There is no statutory or case law addressing this issue.

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D. The source's rights and interests

There is no statutory or case law addressing this issue.

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