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South Dakota

Reporter's Privilege Compendium

Jon Arneson
123 S. Main St., Suite 202
Sioux Falls, SD 57104
(605) 335-0083

Note: On March 8, 2019, South Dakota enacted a shield law, which protects journalists from revealing privileged sources and information.  This chapter is in the process of being updated accordingly.

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I. Introduction: History & Background

South Dakota has no shield law and there is only one appellate decision in which the issue of compelled disclosure was addressed in any context. See Hopewell v. Midcontinent Broadcasting Corp., 538 NW2d 780 (SD 1995).

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II. Authority for and source of the right

A. Shield law statute

South Dakota has no shield law.

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B. State constitutional provision

In Hopewell v. Midcontinent Broadcasting Corp., the South Dakota Supreme Court did not refer to either state or federal constitutions. However, whatever protection the court accorded journalists presumably derives from both the First Amendment and the state's version, Article VI, §5.

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C. Federal constitutional provision

In Hopewell v. Midcontinent Broadcasting Corp., the South Dakota Supreme Court did not refer to either state or federal constitutions. However, whatever protection the court accorded journalists presumably derives from both the First Amendment and the state's version, Article VI, §5.

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D. Other sources

In Hopewell v. Midcontinent Broadcasting Corp., the South Dakota Supreme Court relied on Mitchell v. Superior Court, 690 P.2d 625 (Cal. 1984).

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III. Scope of protection

A. Generally

In Hopewell v. Midcontinent Broadcasting Corp. a libel case, the South Dakota Supreme Court held a defendant journalist had a "qualified privilege [that] protects confidential news sources from disclosure under certain circumstances."

Adopting the Mitchell v. Superior Court, 690 P.2d 625 (Cal. 1984) test to determine whether the privilege applied, the court in Hopewell considered and balanced five factors:

1) nature of litigation ("disclosure is more appropriate if the news person is a party, particularly in libel cases");

2) relevance ("information must go to the heart of the lawsuit");

3) alternative sources (party seeking disclosure "must exhaust all alternative methods of getting the information");

4) importance of confidentiality ("in matters of great public importance where the risk of harm is substantial, the court should protect confidential informants, even if the plaintiff has no other way to obtain the information"); and

5) whether the statement is false ("must make prima facie showing that the statement is false").

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B. Absolute or qualified privilege

The privilege is qualified.

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C. Type of case

1. Civil

The privilege was specifically limited to civil cases in Hopewell.

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2. Criminal

The court in Hopewell noted that "in criminal proceedings, the interest of the public in law enforcement and the defendant in discovering exculpatory evidence may outweigh the journalists' need for confidentiality. Our decision relates to civil litigation only." [Emphasis added.]

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3. Grand jury

There is no statutory or case law addressing this issue.

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D. Information and/or identity of source

The privilege adopted in Hopewell specifically protects the identity of a source.

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E. Confidential and/or nonconfidential information

The privilege articulated in Hopewell specifically protects the identity of a confidential informant under certain circumstances. The South Dakota Supreme Court has not specifically addressed this issue.

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F. Published and/or non-published material

The privilege articulated in Hopewell specifically protects the identity of a confidential informant under certain circumstances. The South Dakota Supreme Court has not specifically addressed this issue.

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G. Reporter's personal observations

The privilege articulated in Hopewell specifically protects the identity of a confidential informant under certain circumstances. The South Dakota Supreme Court has not specifically addressed this issue.

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H. Media as a party

In Hopewell, this is one of the factors to be considered in determining whether the circumstances warrant protection. The court held that "[d]isclosure is more appropriate if the news person is a party (not merely a witness), particularly in libel cases."

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I. Defamation actions

In Hopewell, this is one of the factors to be considered in determining whether the circumstances warrant protection. The court held that "[d]isclosure is more appropriate if the news person is a party (not merely a witness), particularly in libel cases."

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IV. Who is covered

A. Statutory and case law definitions

1. Traditional news gatherers

a. Reporter

Not defined.

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b. Editor

Not defined.

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c. News

Not defined.

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d. Photo journalist

Not defined.

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e. News organization/medium

Not defined.

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2. Others, including non-traditional news gatherers

Privilege has only been applied in reporter/confidential source context.

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B. Whose privilege is it?

The Hopewell decision implies that the privilege would belong to the source, as well as the reporter, but the case does not reach that point.

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V. Procedures for issuing and contesting subpoenas

A. What subpoena server must do

1. Service of subpoena, time

No special rules for service on media. Subpoenas are "served in the same manner as a summons is served." Subpoenas must be served "sufficiently in advance of the date upon which the appearance of the witness is required to enable such witness to reach such place." SDCL 15-6-45(c).

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2. Deposit of security

No special rules for media subpoenas. However, if the subpoenaed party requests it, the court may require an advance for the reasonable cost of producing documents. SDCL 15-6-45(b).

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3. Filing of affidavit

None required.

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4. Judicial approval

None required.

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5. Service of police or other administrative subpoenas

No special rules for media.

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B. How to Quash

1. Contact other party first

This is generally the recommended first step to ascertain whether the party really wants something more than previously published material. If they do, media counsel has an opportunity to "educate" them on the law of forced disclosure and to let them know the media has a responsibility to protect its newsgathering and editorial processes. In short, it might give them pause whether the information is worth the battle.

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2. Filing an objection or a notice of intent

This is not a requirement.

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3. File a motion to quash

There are no specific statutory provisions for quashing civil subpoenas that are not duces tecum subpoenas. However, the courts have been receptive to generic quash motions on First Amendment grounds. A motion to quash is probably a better option than raising the privilege only after a member of the media is called as a witness. It allows some control of the timing, gives more opportunity to present argument and doesn't unnecessarily surprise the court.

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a. Which court?

If the subpoena is not withdrawn, a motion to quash should be filed in the Circuit Court.

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b. Motion to compel

Media should file without waiting for a motion to compel.

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c. Timing

There is no reason not to file a motion to quash promptly.

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d. Language

There is no special language that is necessary.

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e. Additional material

None.

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4. In camera review

No provision for this.

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a. Necessity

c. Consequences of refusing

5. Briefing schedule

It is recommended that any brief accompany the motion to quash.

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6. Amicus briefs

This is certainly an option, but it will depend upon the judge.

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VI. Substantive law on contesting subpoenas

A. Burden, standard of proof

Certainly the burden of "going forward" will fall on the media contesting the subpoena. Once the privilege is raised, however, the burden of proof for the five-factor test in Hopewell, seems to fall on the party seeking to compel disclosure. However, absent any articulation of the actual standard of proof, it is probably mere preponderance.

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B. Elements

1. Relevance of material to case at bar

This is one of the five factors in Hopewell. The "information must go to the heart of the lawsuit."

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2. Material unavailable from other sources

This is one of the five factors in Hopewell. The party seeking to compel disclosure "must exhaust all alternative methods of getting the information."

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a. How exhaustive must search be?

Although Hopewell court said "exhaust all alternative methods," as a practical matter the scope of the search is uncertain.

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

This, too, is uncertain.

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c. Source is an eyewitness to a crime

Based on Hopewell court's obiter dicta regarding criminal proceedings, it can be assumed disclosure would be forced in this situation.

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3. Balancing of interests

There obviously is a balancing of interests in assessing the significance of the five factors in Hopewell. Furthermore, it is evident from the court's reference to criminal proceedings that balancing is an important aspect in determining whether the qualified privilege applies.

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4. Subpoena not overbroad or unduly burdensome

There are no special conditions for media subpoenas.

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5. Threat to human life

The "importance of confidentiality" factor in Hopewell certainly takes this into consideration.

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6. Material is not cumulative

This was not specifically addressed in Hopewell, although it should be raised, nevertheless, in any contested case.

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7. Civil/criminal rules of procedure

8. Other elements

Although the Hopewell court included the fifth factor, falsity, it presumably pertains only in libel/slander cases in which the truth or falsity is a critical issue.

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C. Waiver or limits to testimony

1. Is the privilege waivable?

There is no pertinent case law on this issue.

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2. Elements of waiver

a. Disclosure of confidential source's name

There is no pertinent case law on this issue.

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b. Disclosure of non-confidential source's name

There is no pertinent case law on this issue.

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c. Partial disclosure of information

There is no pertinent case law on this issue.

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d. Other elements

There is no pertinent case law on this issue.

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3. Agreement to partially testify act as waiver?

There is no pertinent case law on this issue.

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VII. What constitutes compliance?

A. Newspaper articles

There is no pertinent case law on this issue.

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B. Broadcast materials

There is no pertinent case law on this issue.

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C. Testimony vs. affidavits

There is no pertinent case law on this issue.

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D. Non-compliance remedies

1. Civil contempt

a. Fines

Failure to attend is punishable by fine up to $50. Refusal to testify is punishable by fine up to $50 and imprisonment until willing to testify. SDCL 19-5-12.

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b. Jail

Refusal to testify is punishable by fine up to $50 and imprisonment until willing to testify. SDCL 19-5-12.

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2. Criminal contempt

3. Other remedies

No special remedies.

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VIII. Appealing

A. Timing

1. Interlocutory appeals

Refusal to quash a subpoena might be an "order affecting substantial right" under SDCL 15-26A-3(2) from which immediate appeal of right is allowed. If not, it can still be appealed as a matter of discretion under SDCL 15-26A-3(6).

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2. Expedited appeals

Suspension of normal rules permissible under SDCL 15-26A-2 in cases "of pressing concern to the public or to litigants, or for other good cause shown."

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B. Procedure

1. To whom is the appeal made?

Circuit Court decisions are appealed directly to the South Dakota Supreme Court.

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2. Stays pending appeal

There is no case law on point, but it is doubtful a stay of jail sentence would not be granted.

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3. Nature of appeal

Either appeal of right or appeal with permission. Mandamus/prohibition are certainly possible remedies, particularly when the trial court neglects to enter an order.

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4. Standard of review

There is no case law to suggest anything other than normal deference being given to lower court's findings.

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5. Addressing mootness questions

The South Dakota Supreme Court has shown a willingness to address moot questions that are capable of repetition without timely remedy.

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6. Relief

IX. Other issues

A. Newsroom searches

There are no special state statutes regarding newsroom searches. On the other hand, the author is not aware of any newsroom searches in the state since the enactment of the federal Privacy Protection Act.

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B. Separation orders

It is doubtful a separation order has been entered in a South Dakota case. There are no statutory or case law protections.

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C. Third-party subpoenas

There is no case law on the subject.

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D. The source's rights and interests

These issues have not been addressed.

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