Skip to content
Skip over table of contents to continue reading article

3rd Circuit

Reporters Privilege Compendium

Jay Ward Brown, Partner
Brian C. Earl, Paralegal and 2L Law Student
Ballard Spahr LLP
1909 K Street, N.W., 12th Floor
Washington, D.C. 20006
(202) 508-1136
brownjay@ballardspahr.com

Compare

I. Introduction: History & Background

In general, the Third Circuit historically has afforded broad protection to journalists against compelled disclosure of their sources or the fruits of their newsgathering. Indeed, at least so far as reported opinions reveal, in civil actions involving subpoenas to non-party reporters, invocation of the First Amendment-based qualified reporter's privilege is almost always upheld. Although courts within the Third Circuit are more likely to find that other constitutional interests outweigh the reporter's privilege when invoked by journalists in criminal cases or grand jury proceedings (especially where the identity of a source has already been made known through other means), even in these areas, the Third Circuit is relatively hospitable to the privilege.

As set forth in more detail below, the Third Circuit employs a three-part test to determine whether a person seeking disclosure from a journalist has overcome the privilege: Such a person must make specific showings that the information sought is material, relevant and necessary to the party's claims or defenses. See, e.g., Riley v. City of Chester, 612 F.2d 708, 716 (3d Cir. 1979). Specifically, the party seeking disclosure must show there is no other practical way of accessing the information, all other potential sources have been exhausted, and the information is crucial to the party’s claims or defenses. See, e.g., id. at 716-17. Ultimately, whether these elements have been sufficiently established will depend upon a balancing test in which the courts weigh the relative interests of the reporter with the interests of the party seeking disclosure. See, e.g., id. Thus, for example, a criminal defendant whose constitutional right to a fair trial is implicated by a request for disclosure will likely not need to make as great a showing to overcome the privilege as would a civil litigant whose constitutional rights were not implicated.

Author’s Note: The author gratefully acknowledges Aaron Johansen (the current edition) and John F. Blevins (the prior edition) for the research and writing they contributed to this outline.

Compare

II. Authority for and source of the right

The Third Circuit recognized a qualified reporter's privilege derived from the First Amendment in Riley v. City of Chester, 612 F.2d 708 (3d Cir. 1979). Expressly relying on Branzburg v. Hayes, 408 U.S. 665 (1972), the Court of Appeals cited Federal Rule of Evidence 501 and the First Amendment as the sources of, respectively, its authority to recognize the privilege and the privilege's contours, although it also described the privilege as arising under "federal common law." Riley, 612 F.2d at 714-15; see also, e.g., United States v. Criden, 633 F.2d 346, 356 (3d Cir. 1981) (privilege is "deeply rooted in the first amendment"); Parsons v. Watson, 778 F. Supp. 214, 216 (D. Del. 1991) (privilege "finds its roots" in Branzburg). The Third Circuit also has indicated that it may consider state law in evaluating a claim of privilege, even when its jurisdiction is based on a federal question. Riley, 612 F.2d at 715 ("In recognizing such privilege, we may consider also the applicable state law . . . .”); see also Downey v. Coalition Against Rape & Abuse, Inc., No. Civ. 99-3370 (JBS), 31 Media L. Rep. (BNA) 2582, 2003 WL 23164082, at *5 n.6 (D.N.J. Apr. 10, 2003) (considering both federal common law and state law policies when assessing assertion of privilege in action presenting both federal and state law claims and observing that "more emphasis on state law policy is appropriate . . . where the federal . . . claims . . . are notably weak”).

By the same token, pursuant to Federal Rule Evidence 501, in diversity actions, courts in the Third Circuit are bound to apply the applicable state law of privilege. See, e.g., Steaks Unlimited, Inc. v. Deaner, 623 F.2d 264, 277 n.63 (3d Cir. 1980).

Compare

A. Shield law statute

There is no federal shield law statute.  However, the Third Circuit has indicated that it may consider state law in evaluating a claim of privilege, even when its jurisdiction is based on a federal question. Riley, 612 F.2d at 715 ("In recognizing such privilege, we may consider also the applicable state law . . . .”); see also Downey, 2003 WL 23164082, at *5 n.6 (considering both federal common law and state law policies when assessing assertion of privilege in action presenting both federal and state law claims and observing that "more emphasis on state law policy is appropriate . . . where the federal . . . claims . . . are notably weak”).  Additionally, pursuant to Federal Rule Evidence 501, in diversity actions, courts in the Third Circuit are bound to apply the applicable state law of privilege. See, e.g., Steaks Unlimited, Inc. v. Deaner, 623 F.2d 264, 277 n.63 (3d Cir. 1980).

As such, in the Third Circuit, the shield law statutes of New Jersey, N.J.S.A. 2A:84A-21, Pennsylvania, 42 Pa. C.S.A. § 5942, and Delaware, 10 Del. Code §§ 4320-26 may be considered.

Compare

B. State constitutional provision

Although each state in the Third Circuit has a provision in its state constitutions protecting the freedom of the press, see Del. Const. art. I, § 5; N.J. Const. art. I, § 6; Pa. Const. art. I, § 7, none of those states have recognized a newsperson’s privilege arising from those provisions.

Compare

C. Federal constitutional provision

The Third Circuit recognized a qualified reporter's privilege derived from the First Amendment in Riley v. City of Chester, 612 F.2d 708 (3d Cir. 1979).

Compare

D. Other sources

The Third Circuit has indicated that, in addition to being derived from the First Amendment, the qualified reporter's privilege also derives from the common law.  Riley, 612 F.2d at 714-15.

Compare

III. Scope of protection

A. Generally

Courts in the Third Circuit historically have afforded broad protection to the identity of reporters' sources and to unpublished fruits of newsgathering. See generally Smith v. Borough of Dunmore, 516 F. App’x 194 (3d Cir. 2013); United States v. Cuthbertson, 651 F.2d 189 (3d Cir. 1981) ("Cuthbertson II"); Riley, 612 F.2d 708; Damiano v. Sony Music Entm't, Inc., 168 F.R.D. 485 (D.N.J. 1996). So far as reported opinions reveal, the Third Circuit has never required a journalist to disclose the identity of a confidential source or produce outtakes or similar material that might reveal the identity of such a source. Where a source's identity already has been disclosed through other means, however, courts in the Third Circuit tend to be more skeptical of claims of privilege. See, e.g., In Re Grand Jury Empaneled Feb. 5, 1999, 99 F. Supp. 2d 496, 499-500 (D.N.J. 2000) (requiring disclosure in grand jury proceeding involving published information from "a self-avowed source whose identity is publicly known").

Even in those cases in which courts within the Third Circuit have ruled that the party seeking disclosure has or may be able to overcome the privilege, the courts are usually careful to narrowly circumscribe the required disclosure. In United States v. Cuthbertson, 630 F.2d 139 (3d Cir. 1980) ("Cuthbertson I"), for example, the court initially required CBS (as a third party to a criminal prosecution) to disclose to the trial court for in camera review only those verbatim or near-verbatim statements in its possession made by persons on the government's witness list so that the court could determine, as each witness testified, whether the defendant was entitled to obtain and use such statements for purposes of impeachment. On remand after its in camera review, the trial court determined that the statements constituted exculpatory evidence to which the defendant was entitled regardless of what testimony the witnesses gave. On further appeal, the Third Circuit reversed in part, finding that the subpoena was overbroad and should have been quashed. Cuthbertson II, 651 F.2d at 194-96.  In another case, where the defendant overcame the qualified privilege, the district court required the reporter to answer direct questions about whether the plaintiffs made statements quoted in an article but modified the breadth of cross examination and redirect questions because they were overbroad and failed "to meet the strictures of the reporter's privilege." In re Subpoena of Maykuth, No. 05-0228, 34 Media L. Rep. (BNA) 1476, 2006 WL 724241, at *3 (E.D. Pa. Mar. 17, 2006)

This narrowing has been applied even where the disclosure sought is from the source and not from the publisher.  In In re: Molycorp, Inc., No. 15-11357 (CSS) (Bankr. D. Del.), Bloomberg L.P. published three articles regarding the bidding process and mediation in a bankruptcy action, all of which contained information that was confidential pursuant to a protective order.  In response, the court issued an order requiring a group of party representatives and outside counsel, totaling more than 120 individuals, to self-report by sworn declaration any contact with any Bloomberg reporter regarding the debtor within a 60 day period, regardless of its relation to the at-issue articles or its non-public status. Order, ECF No. 1078. Bloomberg challenged the order’s broad language, arguing that it was not narrowly tailored and thus violated the privilege. Memorandum in Support, ECF No. 1105. In considering the motion, the court implemented “a balancing test,” weighing the court’s “serious and important  . . . interest in the protection of the mediation process, the integrity of . . . bankruptcy, and the enforcement of its orders” against “the interest of the press under the First Amendment to do the press’ job of reporting the news . . . and the protections of individuals . . . to speak on an anonymous basis,” and concluded that the order was indeed overly broad and needed to be narrowed. Transcript of January 22, 2016 Hearing at 39:7-9, ECF No. 1172.  Ultimately, the court ruled that the information sought be limited to disclosures to the specific authors of the at-issue articles, but the court’s interest in ensuring enforcement of its orders justified compelling disclosure of communications beyond just what appeared in the articles. Transcript of January 29, 2016 Hearing at 18:20-19:23, ECF No. 1209; see also Amended Order, ECF No. 1227 (executed amended order agreed upon by all parties reflecting court’s narrowing of original order and declaration language).

Compare

B. Absolute or qualified privilege

The Third Circuit has repeatedly held that the First Amendment-based reporter's privilege is a qualified one, regardless of whether raised in a civil or criminal context. E.g., Cuthbertson I, 630 F.2d at 146-47; Riley, 612 F.2d at 715. In United States v. Criden, the Court of Appeals observed that, "[w]hen no countervailing constitutional concerns are at stake, it can be said that the privilege is absolute; when constitutional precepts collide, the absolute gives way to the qualified and a balancing process comes into play to determine its limits." 633 F.2d at 356. However, as another court has observed, in practice "every case has some constitutional element,” so “an absolute privilege is no longer recognized," and “reference to an ‘absolute’ privilege is an academic distinction.” Damiano, 168 F.R.D. at 495.

 

Both the Pennsylvania and New Jersey state shield laws have been said to create an absolute privilege at least as to the identity of confidential sources. See In re Subpoena to Barnard, No. Misc. 98-189, 27 Media L. Rep. (BNA) 1500, 1999 WL 38269, at *2 (E.D. Pa. Jan. 25, 1999) ("The Pennsylvania Shield Law provides journalists with an absolute privilege against the compelled disclosure of confidential sources of information."); Lal v. CBS, Inc., 551 F. Supp. 364, 365 (E.D. Pa. 1982) (the "privilege afforded by state law is broader than the constitutional privilege"), aff'd, 726 F.2d 97 (3d Cir. 1984); Damiano, 168 F.R.D. at 494 n.5 (noting that, although federal privilege is qualified, “the New Jersey privilege is still absolute”). However, there is a contrary suggestion in at least some federal court decisions within the Third Circuit. See, e.g., Smith, 516 F. App'x at 198 ("Pennsylvania state law and federal common law grant journalists a qualified privilege to refuse to disclose sources of information.").

Compare

C. Type of case

1. Civil

The Third Circuit repeatedly has held that the First Amendment-based reporter's privilege is a qualified one, regardless of whether raised in a civil or criminal context. E.g., Cuthbertson I, 630 F.2d at 146-47; Riley, 612 F.2d at 715. In the civil context, however, the party seeking disclosure generally bears a greater burden under the applicable three-part test than would a criminal defendant. Riley, 612 F.2d at 716; see also, e.g., McBride v. CBS Radio, Inc., No. 10-5463, 2011 WL 8072752, at *1 n.1 (E.D. Pa. Apr. 12, 2011) (“[T]he privilege assumes greater importance in civil cases than in criminal cases.” (citation omitted)); Parsons, 778 F. Supp. at 218 (courts "require a stronger showing in civil cases than in criminal cases"); Altemose Constr. Co. v. Bldg. & Constr. Trades Council of Phila., 443 F. Supp. 489, 491 (E.D. Pa. 1977) (same). This is so because, in civil cases, “the public’s interest in casting protective shroud over [a journalists’] sources and information warrants an even greater weight” than in criminal cases, where a defendant's constitutional rights are more likely to be implicated by a failure to obtain the information. Altemose Constr. Co., 443 F. Supp. at 491; see also e.g., Damiano, 168 F.R.D. at 495; Smith, 2001 WL 2115841, at *4 (in civil cases, where the court is not required “to weigh the report’s privilege against a defendant’s constitutional right to exculpatory evidence,” policies underlying the privilege “significantly outweigh” the need for disclosure”).

Compare

2. Criminal

While neither the privilege itself nor the reporter's (and thus the public's) First Amendment interests are diminished in criminal cases, the countervailing interests typically are stronger in the criminal context than in the civil. Cuthbertson I, 630 F.2d at 146-48. These countervailing interests include the criminal defendant's rights under the Fifth and Sixth Amendments. Id. at 147; see also Criden, 633 F.2d at 358 (explaining that defendant's rights come from both "the confrontation and compulsory process clauses of the sixth amendment and the due process clause of the fifth amendment"); Parsons, 778 F. Supp. at 218 (courts "may require a stronger showing in civil cases than in criminal cases because the important constitutional rights possessed by criminal defendants present significant countervailing interests weighing against" the newsgatherer).

Compare

3. Grand jury

While the Third Circuit has held that the qualified privilege applies to grand jury proceedings, courts have found that the investigation of possible crimes represents a countervailing constitutional interest that affects the applicable balancing test. See, e.g., In re Grand Jury Subpoena of Williams, 766 F. Supp. 358, 369 (W.D. Pa. 1991), aff'd without opinion by equally divided court, 963 F.2d 567 (3d Cir. 1992) (in banc); see also In re Grand Jury Empaneled Feb. 5, 1999, 99 F. Supp. 2d at 498, 500 (upholding subpoena in part because it was issued in connection with grand jury proceeding protected by the Fifth Amendment); In re Gronowicz, 764 F.2d 983, 986 (3d Cir. 1985) (en banc) (recognizing that privilege “yields, if the circumstances so require, to the compelling government interest in investigation of crime”).

Compare

D. Information and/or identity of source

Courts in the Third Circuit have given strong protection both to the identity of reporters' sources and other information that might implicitly identify the source. See, e.g., Criden, 633 F.2d at 350, 360 (notwithstanding that reporter was required to testify as to certain matters, "she is to disclose not the source of any information"); Steaks Unlimited, Inc., 623 F.2d at 279 (pursuant to Pennsylvania shield law, upholding claim of privilege with respect to video "outtakes" that might "reveal the identity of secondary sources").

Compare

E. Confidential and/or nonconfidential information

Courts in the Third Circuit have explained that whether the information sought was obtained under a promise of confidentiality is one factor to be considered when balancing the competing interests at stake but is not a required element of the privilege. See, e.g., Criden, 633 F.2d at 355-56 (discussing at length value of confidential sources and observing that need to maintain confidentiality is underlying reason for reporter's privilege); Altemose Constr. Co., 443 F. Supp. at 491 ([T]his qualified privilege can even apply when the news source and, perhaps, a portion of the withheld writing, are not confidential.”). In cases involving non-confidential information, courts generally will permit a lesser showing to overcome the privilege than in cases involving confidential information. See, e.g., Cuthbertson I, 630 F.2d at 147 ("[T]he lack of a confidential source may be an important element in [the] balancing [test]"); In re Grand Jury Empaneled Feb. 5, 1999, 99 F. Supp. 2d at 501 ("The seeker of information is required to prove less where, as here, the information sought is nonconfidential and the source self-avowed. Accordingly, the government should only have to establish that the information sought is necessary for the grand jury's purposes."); Doe v. Kohn, Nast & Graf, P.C., 853 F. Supp. 147, 149-50 (E.D. Pa. 1994) (non-confidentiality of information is "an important factor favoring disclosure"); Parsons, 778 F. Supp. at 218 (same).

In addition, a confidential relationship between reporter and source can be implied. For example, in a case involving anonymous sources, one district court observed that an "implied confidential relationship" can arise when information is transmitted by anonymous sources. Thus, "there need not be an explicit promise of confidentiality for the news gatherer to invoke his or her privilege." In re Grand Jury Subpoena of Williams, 766 F. Supp. at 372.

Compare

F. Published and/or non-published material

While publication has been held to waive the privilege under the Pennsylvania state shield law, Steaks Unlimited Inc., 623 F.2d at 278, courts in the Third Circuit have held that mere publication is not necessarily a waiver of the federal privilege. In re Subpoena to Barnard, 1999 WL 38269, at *3. Publication is, however, a factor that may be weighed in application of the federal privilege balancing test. See, e.g., In re Grand Jury Empanelled Feb. 5, 1999, 99 F. Supp. 2d at 499-500.

Compare

G. Reporter's personal observations

Although it does not appear that the Court of Appeals has directly addressed this question in reported opinions, in Riley v. City of Chester, 612 F.2d at 716, the court, in the course of quashing a subpoena, observed that "[t]his is not a case where the reporter witnessed events which are the subject of grand jury investigations into criminal conduct."

One district court, however, relying on case law from other circuits, held that the reporter's privilege "does not apply when a reporter is being questioned about a public incident or event to which he or she was a witness because there is no intrusion into the newsgathering or special functions of the press." Kitzmiller v. Dover Area Sch. Dist., 379 F. Supp. 2d 680, 686-88 (M.D. Pa. 2005). On a motion for reconsideration, the court modified the subpoena to limit questioning solely to what the reporters saw and heard, explaining that the deposition was not to inquire as to the “reporter's motivation(s), bias, mental impressions, or other inquiry which involves matters extrinsic to what the reporters saw and heard.” Kitzmiller v. Dover Area Sch. Dist., No. 04CV2688, 2005 U.S. Dist. LEXIS 33878, at *7 (M.D. Pa. Sept. 12, 2005).

Compare

H. Media as a party

Where a reporter or media organization is a party to an action, the district courts have suggested that the privilege is more easily overcome because “it should be more difficult to compel production from a non-party witness . . . .” McBride, 2011 WL 8072752, at *1 n.1; see also, e.g., United States v. Nat'l Talent Assocs., Inc., No. 96-2617 (AJL), 25 Media L. Rep. 2550, 1997 WL 829176, at *6 (D.N.J. Sept. 4, 1997) ("Generally, the privilege yields more readily where the news organization is a party."), Report & Recommendation Adopted, No. 96-2617, 1997 WL 829196 (D.N.J. Sept. 22, 1997); Parsons, 778 F. Supp. at 218 ("[T]he courts may require a lesser showing where the journalist is a party to the lawsuit rather than a third-party witness.").

Moreover, where the journalist is himself the target of a grand jury investigation, as where a book's author was alleged to have made fraudulent statements in connection with obtaining a publishing contract, the Third Circuit has held that the limits of the grand jury's inquiry are established by the so-called Schofield rule, which requires that the government show by affidavit that the subpoenaed items are "'(1) relevant to an investigation, (2) properly within the grand jury's jurisdiction, and (3) not sought primarily for another purpose.'" In re Gronowicz, 764 F.2d at 986 (quoting In re Grand Jury Proceedings, 507 F.2d 963, 966 (3d Cir. 1975)).

Compare

I. Defamation actions

While courts in the Third Circuit do not appear to have created a formal "libel exception" to the reporter's privilege, the Court of Appeals at least has raised the question whether the privilege would apply where the reporter or a media organization is a defendant in a libel action and the publication is alleged to have been made with constitutional malice. Riley, 612 F.2d at 716 (reversing contempt citation against journalist who declined to comply with disclosure order, but observing that case before it was not "a situation in which the journalist and/or publisher are defendants in a suit brought for damages caused by publications alleged to have contained knowing or reckless falsehoods").

On the other hand, federal courts in the Third Circuit sitting in diversity have applied Pennsylvania's shield law to bar discovery of a reporter's sources and notes even in a libel action in which the defendant has been granted summary judgment on the basis of an absence of actual malice, at least where the plaintiff is a public official. See, e.g., Coughlin v. Westinghouse Broad. & Cable Inc., 780 F.2d 340, 342 (3d Cir. 1985); Lal, 551 F. Supp. at 366. The district court in New Jersey has done likewise with respect to that state's "comprehensive and absolute" shield law. Prager v. ABC, Inc., 569 F. Supp. 1229, 1239 (D.N.J. 1983), aff'd, 734 F.2d 7 (3d Cir. 1984) (table); see also Downey v. Coal. Against Rape & Abuse, Inc., No. Civ. 99-3370 (JBS), 2001 WL 34379465, at *5-7 (D.N.J Dec. 6, 2001) (quashing deposition notice to media defendant because “the need of a defamation plaintiff to prove her claim must give way” to absolute privilege provided by New Jersey Shield Law), aff’d, No. Civ. 99-3370 (JBS), 2003 WL 23164082 (D.N.J. Apr. 10, 2003).

Compare

IV. Who is covered

It appears that the Third Circuit has only once ventured into the difficult business of defining who is entitled to invoke the First Amendment-based reporter's privilege, in In re Madden, 151 F.3d 125 (3d Cir. 1998). There, an employee of "World Championship Wrestling" was responsible for recording "commentaries" regarding professional wrestlers and wrestling events on a 900 telephone line, for access to which callers paid a fee. Id. at 126-27. Relying largely on reasoning of other circuits, the court held that persons or entities seeking to invoke the First Amendment-based journalist's privilege have the burden of demonstrating that they are "engaged in investigative reporting, gathering news, and have the intent at the beginning of the newsgathering process to disseminate this information to the public." Id. at 130. Because Madden concededly was an "entertainer," not a reporter, and concededly was not primarily in the business of gathering news or facts, but of creating "hype" and "fiction," the Third Circuit concluded that he was not entitled to invoke the journalist's privilege. Id. As the court explained, "[t]his test does not grant status to any person with a manuscript, a web page or a film, but requires an intent at the inception of the newsgathering process to disseminate investigative news to the public. As we see it, the privilege is available only to those persons whose purposes are those traditionally inherent to the press; persons gathering news for publication." Id. at 129-30. Nevertheless, it also observed that “it makes no difference whether the intended manner of dissemination was by newspaper, magazine, book, public or private broadcast or handbill because the press, in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion. Id. at 129 (citation omitted); see also, e.g., In re Domestic Drywall Antitrust Litig., 300 F.R.D. 234, 247 (E.D. Pa. 2014) (finding that industry research company using confidential sources to compile reports sold only to large institutional investors did not have requisite intent to disseminate to public and therefore did not qualify for privilege); In re Scott Paper Co. Sec. Litig., 145 F.R.D. 366, 368-69 (E.D. Pa. 1992) (intent to disseminate information for good of public weighed in favor of finding that credit reporting company was entitled to invoke journalist's privilege).

Compare

A. Statutory and case law definitions

1. Traditional news gatherers

a. Reporter

In In re Madden, 151 F.3d at 130, the Third Circuit held that persons or entities seeking to invoke the First Amendment-based journalist's privilege have the burden of demonstrating that they are "engaged in investigative reporting, gathering news, and have the intent at the beginning of the newsgathering process to disseminate this information to the public." As the court explained, "[t]his test does not grant status to any person with a manuscript, a web page or a film, but requires an intent at the inception of the newsgathering process to disseminate investigative news to the public. As we see it, the privilege is available only to those persons whose purposes are those traditionally inherent to the press; persons gathering news for publication." Id. at 129-30. Nevertheless, the Third Circuit also observed, "'it makes no difference whether the intended manner of dissemination was by newspaper, magazine, book, public or private broadcast or handbill because the press, in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion.'" Id. at 129 (citations omitted).

Compare

b. Editor

Courts in the Third Circuit do not appear expressly to have addressed this question, but under the three-part test it employs, there appears little doubt that traditional editors would qualify for the First Amendment-based privilege. See In re Madden, 151 F.3d at 130.

Compare

c. News

In In re Madden, 151 F.3d at 130, the Third Circuit held that persons or entities seeking to invoke the First Amendment-based journalist's privilege have the burden of demonstrating that they are "engaged in investigative reporting, gathering news, and have the intent at the beginning of the newsgathering process to disseminate this information to the public." As the court explained, "[t]his test does not grant status to any person with a manuscript, a web page or a film, but requires an intent at the inception of the newsgathering process to disseminate investigative news to the public." Id. at 129. In that case, the court held that entertainment or "creative fiction" concerning "professional" wrestlers does not qualify as "news." Id. at 130-31. However, as one district court has explained, the First Amendment-based privilege "is not confined to any particular subject matter." In re Scott Paper Co. Sec. Litig., 145 F.R.D. at 369.

Compare

d. Photo journalist

Courts in the Third Circuit do not appear expressly to have addressed this question, but under the three-part test it employs, there appears little doubt that photojournalists would qualify for the First Amendment-based privilege. See In re Madden, 151 F.3d at 130.

Compare

e. News organization/medium

The Third Circuit has held that persons or entities seeking to invoke the First Amendment-based privilege bear the burden of demonstrating that they are "engaged in investigative reporting, gathering news, and have the intent at the beginning of the news-gathering process to disseminate this information to the public." In re Madden, 151 F.3d at 130. As the court explained, "[t]his test does not grant status to any person with a manuscript, a web page or a film, but requires an intent at the inception of the newsgathering process to disseminate investigative news to the public. As we see it, the privilege is available only to those persons whose purposes are those traditionally inherent to the press; persons gathering news for publication." Id. at 129-30. Nevertheless, it also observed that "'it makes no difference whether the intended manner of dissemination was by newspaper, magazine, book, public or private broadcast or handbill because the press, in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion.'" Id. at 129 (citations omitted).

Compare

2. Others, including non-traditional news gatherers

The three-part test employed by the Third Circuit to determine who is entitled to invoke the First Amendment-based journalist's privilege depends not on formal distinctions in job description or role, but on the purpose for which the person or entity has gathered news. See In In re Madden, 151 F.3d at 130 (qualification for privilege “requires an intent at the inception of the newsgathering process to disseminate investigative news to the public); see also, e.g., United States v. Vastola, 685 F. Supp. 917, 920, 924-25 (D.N.J. 1988) (extending privilege to author of book about mafia and Ronald Reagan); In re Scott Paper Co. Sec. Litig., 145 F.R.D. at 367-71 (extending privilege to corporation reporting on creditworthiness of companies and their securities that distributed reports to public).

Compare

B. Whose privilege is it?

In the Third Circuit, the First Amendment-based privilege traditionally has been found to belong to the reporter or news organization and not to the source. See, e.g., Cuthbertson I, 630 F.2d at 147 ("The privilege belongs to CBS, not the potential witnesses, and it may be waived only by its holder."); Damiano, 168 F.R.D. at 500-01 (privilege belongs to reporter and/or reporter’s employer, not source). However, in In re: Molycorp, No. 15-11357 (CSS) (Bankr. D. Del.), a district bankruptcy judge appeared to extend the right to claim privilege even to instances where no disclosure was sought from the newsgatherer.  There, the court recognized Bloomberg L.P.’s interest in an order requiring sources to self-identify disclosures to the media via sworn declarations and ultimately narrowed its order to accommodate that interest. Transcript of January 22, 2016 Hearing at 38:15-39:8, ECF No. 1172. So far as reported opinions reveal, courts in the Third Circuit do not appear to have resolved directly the question of whether the privilege belongs to the reporter individually and/or to his or her employer.

Compare

V. Procedures for issuing and contesting subpoenas

A. What subpoena server must do

1. Service of subpoena, time

Federal Rule of Civil Procedure 45 establishes the requirements for issuance of a subpoena in federal district courts. The Third Circuit does not appear through case law to have placed any special gloss on these requirements where subpoenas are directed to the news media.

Compare

2. Deposit of security

Neither the applicable rules nor case law in the Third Circuit appear to address this point.

Compare

3. Filing of affidavit

Except in the grand jury context, neither the applicable rules nor case law in the Third Circuit appear to require that a subpoena to the news media be supported by an affidavit, at least in the first instance. In the grand jury context, the Third Circuit has held that the limits of a grand jury's inquiry are established by the so-called Schofield rule, which requires that the government show by affidavit that the subpoenaed items are "'(1) relevant to an investigation, (2) properly within the grand jury's jurisdiction, and (3) not sought primarily for another purpose.'" In re Gronowicz, 764 F.2d at 986 (quoting In re Grand Jury Proceedings, 507 F.2d at 966).

Compare

4. Judicial approval

Neither the applicable rules nor case law in the Third Circuit appear to require prior judicial approval of a subpoena issued by counsel to the news media.

Compare

5. Service of police or other administrative subpoenas

Neither the applicable rules nor case law in the Third Circuit appear to address this point.

Compare

B. How to Quash

1. Contact other party first

Although there is no requirement that a person subject to a subpoena issued in the name of a federal court do so, in general, it usually is preferable to contact the attorney who issued the subpoena prior to taking formal steps to quash it. Often, the attorney who issued the subpoena will be unfamiliar with the reporter's privilege and, upon being educated, will voluntarily withdraw the subpoena or substantially narrow it. Careful attention must be paid to the return date on the subpoena (that is, the date by which the recipient must appear or otherwise comply), however, and if the dispute cannot be resolved through informal negotiation, the recipient of the subpoena should be certain to serve an objection or file a motion to quash in a timely manner, as discussed more fully below, because in certain circumstances a response might be due before the return date specified on the subpoena.

Compare

2. Filing an objection or a notice of intent

To the extent that a subpoena issued in the name of a federal court in a civil action seeks only the production of documents, tapes or similar materials, the recipient may, at his or her option, serve upon the attorney who issued the subpoena a written objection to the subpoena. See Fed. R. Civ. P. 45(d)(2)(B). The objection need not be filed with the court. After service of the objection, the person who received the subpoena need not respond to it unless and until the party that issued the subpoena obtains an order from the court compelling disclosure, and the party is required to give the recipient of the subpoena notice of any motion to compel. Id. In the absence of service of an objection, the recipient of such a subpoena must either timely comply, or timely file a motion with the court to quash or modify the subpoena, as discussed below.

 

Where a subpoena for documents, tapes or similar materials is issued in the name of a federal court in a criminal action, the recipient must either comply, or "promptly" file a motion with the court to quash or modify the subpoena. Fed. R. Crim. P. 17(c).

A federal court’s subpoena for deposition testimony is not subject to an objection letter; instead, if the recipient wishes to challenge it, the recipient must file a motion to quash.

Compare

3. File a motion to quash

a. Which court?

Pursuant to Federal Rule of Civil Procedure 45(d)(3)(A), a motion to quash a subpoena issued in the name of a federal court in a civil action must be filed in the court that issued the subpoena. While the Federal Rules of Criminal Procedure do not expressly address the point, it is apparent that a motion to quash should be filed in the court that issued the subpoena. See Fed. R. Crim. P. 17(c).

Compare

b. Motion to compel

If the recipient of a subpoena serves a written objection to a subpoena issued in the name of a federal court in a civil action, see Fed. R. Civ. P. 45(d)(2)(B), the party that issued the subpoena cannot obtain the materials sought without filing a motion to compel compliance with the subpoena. While it is often tempting to place the burden of filing a motion on the party who issued the subpoena by serving such an objection, rather than affirmatively moving to quash the subpoena, in some cases there may be a strategic advantage for the recipient of the subpoena to be the moving party. For example, the movant may control the timing and, to some extent, the briefing schedule on such a motion, and the movant may be able to frame the issues in the most helpful way. Whether waiting for the other side to move to compel or affirmatively moving to quash will be more advantageous generally will depend on the facts of the particular case.

Compare

c. Timing

Pursuant to Fed. R. Civ. P. 45(d)(2)(B), if the recipient of a subpoena in a civil action for documents or things wishes to rely on a written objection, the recipient must serve the objection "before the earlier of the time specified for compliance or 14 days after the subpoena is served.” A motion to quash, whether in a civil or a criminal matter, generally is required to be filed "promptly" or “timely,” in accordance with local rules or practice, and in any event prior to the return date of the subpoena (that is, the date by which the recipient is required to appear or otherwise comply with the subpoena).

Compare

d. Language

In the Third Circuit, there do not appear to be any "magic words" that a person challenging a subpoena must include. Clearly, however, an objection or motion to quash should demonstrate that the recipient of the subpoena qualifies to invoke the reporter's privilege, and that the party issuing the subpoena cannot meet the three-part test for overcoming the privilege.

Compare

e. Additional material

Neither the applicable rules nor case law in the Third Circuit appear to address this point.

Compare

4. In camera review

a. Necessity

Courts in the Third Circuit are not required as a matter of course to conduct an in camera (that is, private) review of the subpoenaed material before deciding whether to quash a subpoena. In practice, however, a court will on occasion seek do so in the course of applying the three-part test for whether the First Amendment-based privilege can be overcome. A court properly can only compel in camera review if the party issuing the subpoena first makes a threshold showing that the information sought is unavailable elsewhere and consists of relevant evidentiary material. See, e.g., Cuthbertson I, 630 F.2d at 148-49; Kohn, Nast & Graf, P.C., 853 F. Supp. at 149.  This threshold requirement is applicable in both criminal and civil cases. Kohn, Nast & Graf, P.C., 853 F. Supp. at 149 n.6.

Compare

Neither the applicable rules nor case law in the Third Circuit appear to address the question of whether consent to in camera review will result in an automatic stay of an adverse ruling pending appeal.

Compare

c. Consequences of refusing

Where CBS refused to produce notes and outtakes for in camera review by the trial court in a criminal matter on the ground that such review would impinge its First Amendment-based privilege, the Third Circuit affirmed a citation for civil contempt to the extent that CBS should have produced for in camera inspection those materials as to which the party issuing the subpoena had complied with the limitations of Fed. R. Crim. P. 17(c) and had demonstrated that the information sought was not available from another source. Cuthbertson I, 630 F.2d at 148-49.

Compare

5. Briefing schedule

Motions practice varies from division to division within each district, and often from judge to judge within a division. Consequently, it is important to consult the clerk's office, or a particular judge's scheduling clerk if the matter has been assigned to an individual judge.

Compare

6. Amicus briefs

Federal courts generally accept amicus briefs where the "friend of the court" has something meaningful to add to the parties' briefing. In the Third Circuit, numerous state and national press associations and media companies routinely file amicus briefs at the appellate level and, in significant or difficult cases, at the trial court level. Among the organizations in the Third Circuit that a reporter confronted with a subpoena might want to contact in this regard:

 

Reporters Committee for Freedom of the Press

hotline@rcfp.org

(800) 336-4243

www.rcfp.org

New Jersey Press Association
810 Bear Tavern Road, Suite 307
West Trenton, NJ 08628-1022
(609) 406-0600
www.njpa.org

New Jersey Broadcasters Association
7 Centre Drive, Suite 12
Monroe Township, NJ 08831
(888) 652-2366
www.njba.com

Pennsylvania Association of Broadcasters
208 North 3rd Street, Suite 105
Harrisburg, PA 17101
(717) 482-4820
www.pab.org

Pennsylvania NewsMedia Association
3899 North Front Street
Harrisburg, PA 17110
(717) 703-3000
www.panewsmedia.org

Maryland-Delaware-DC Press Association
P.O. Box 26214
Baltimore, MD 21210
(855) 721-6332
www.mddcpress.com

Compare

VI. Substantive law on contesting subpoenas

A. Burden, standard of proof

The person or entity asserting the privilege has the initial burden of demonstrating that they are entitled to claim its protection. The Third Circuit has held that those seeking to invoke the First Amendment-based journalist's privilege have the burden of demonstrating that they are "engaged in investigative reporting, gathering news, and have the intent at the beginning of the news-gathering process to disseminate this information to the public." In re Madden, 151 F.3d at 130. As the Third Circuit further observed, "'it makes no difference whether the intended manner of dissemination was by newspaper, magazine, book, public or private broadcast or handbill because the press, in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion.'" Id. at 129 (citation omitted).

Once the person invoking the privilege has demonstrated that he or she is entitled to its protection, the burden shifts to the party seeking information from the reporter to show that they are entitled to overcome the privilege. The Third Circuit employs a three-part balancing test to determine whether a person seeking disclosure from a journalist has overcome the privilege: Such a person must make specific showings that the information sought is material, relevant and necessary to the party's claims or defenses. See, e.g., Riley, 612 F.2d at 716. Specifically, the party seeking disclosure must show there is no other practical way of accessing the information, all other potential sources have been exhausted, and the information is crucial to the party’s claims or defenses. See, e.g., id. at 716-17. Ultimately, whether these elements have been sufficiently shown will depend upon a balancing test in which the courts weigh the relative interests of the reporter with the interests of the party seeking disclosure. See, e.g., id. Thus, for example, a criminal defendant whose constitutional right to a fair trial is implicated by a request for disclosure likely will not need to make as great a showing to overcome the privilege as would a civil litigant whose constitutional rights were not implicated. While the courts generally have not defined in traditional terms the burden of proof that the proponent of a subpoena must meet, the Third Circuit has required a "strong showing" based on specific facts. Id.

Compare

B. Elements

Because the reporter's privilege is qualified in the Third Circuit, courts employ a balancing test on a case-by-case basis to determine if the information should be disclosed. Riley, 612 F.2d at 715-16. To overcome the privilege, the party seeking the information must make a strong showing that the information is material, relevant, and necessary. Id. at 716. In United States v. Criden, 633 F.2d at 358-59, the Third Circuit distilled the Riley test into a more formal, three-part test. This three-part test requires that a party seeking information from a reporter must: (1) "demonstrate that he has made an effort to obtain the information from other sources;" (2) "demonstrate that the only access to the information sought is through the journalist and her sources;" and (3) "persuade the court that the information sought is crucial to the claim." Id. at 358-59.

Compare

1. Relevance of material to case at bar

In the Third Circuit, the proponent of a subpoena to a reporter must demonstrate not merely that the information sought is relevant to the party's claims or defenses, but that the information sought from a reporter is "crucial" to the claim or defense. Criden, 633 F.2d at 358-59. Courts have not hesitated to quash subpoenas where the proponent could not demonstrate that the information sought from the reporter was "crucial" to the case at bar, notwithstanding that the information in question clearly was "relevant." See e.g., Nat'l Talent Assocs., Inc., 1997 WL 829176, at *4 (information sought, "while relevant," was "not crucial"); accord McBride, 2011 WL 8072752, at *1 n.1; Kohn, Nast & Graf, P.C., 853 F. Supp. at 152; Parsons, 778 F. Supp. at 218-19; Vastola, 685 F. Supp. at 924-25; but see In re Grand Jury Empanelled Feb. 5, 1999, 99 F. Supp. 2d at 501 (in grand jury context, at least where identity of source had already been disclosed through other means, government was not required to demonstrate that information was "crucial" to its investigation, but merely that it was "necessary for the grand jury's purposes").

By the same token, however, proponents of some subpoenas can meet their burden on this element in some circumstance. See, e.g., Criden, 633 F.2d at 359 (where reporter's testimony could prove or disprove element of underlying defense and reporter was only available avenue to information, party issuing subpoena had demonstrated crucial need, particularly since party was not seeking disclosure of source's identity); Smith, 516 F. App’x at 198 (finding source’s identity to be “crucial” where it was required to establish plaintiff’s claim); In re Subpoena to Barnard, 1999 WL 38269, at *3 (where information sought concerned statements in published article and statements were admission of wrongdoing by defendant in underlying civil action, plaintiff who issued subpoena to reporter had demonstrated that testimony concerning statements was "crucial"); In re Subpoena of Maykuth, 2006 WL 724241, at *3 (observing that information sought from reporter strikes at "very heart" of plaintiffs' case).

Compare

2. Material unavailable from other sources

In the Third Circuit, the party seeking information must (1) "demonstrate that he has made an effort to obtain the information from other sources;" and (2) "demonstrate that the only access to the information sought is through the journalist and her sources." Criden, 633 F.2d at 358-59. Courts in the Third Circuit appear generally to apply these requirements strictly and have required that parties make specific, factual showings as to both elements. Where the party issuing a subpoena is unable to do so, courts have not hesitated to quash subpoenas. See, e.g., Cuthbertson II, 651 F.2d at 195-96; Riley, 612 F.2d at 716-17; Smith, 516 F. App’x at 198; Downey, 2003 WL 23164082, at *6; Nat'l Talent Assocs., Inc., 1997 WL 829176, at *5; In re Scott Paper Co. Sec. Litig., 145 F.R.D. at 371; In re Grand Jury Subpoena of Williams, 766 F. Supp. at 370, aff'd without opinion by equally divided court, 963 F.2d 567 (3d Cir. 1992) (in banc).

By the same token, the courts have held that some parties have met their burden on this element. See, e.g., Criden, 633 F.2d at 358-59 (where party had taken testimony from suspected source and sought to obtain relevant information from government, and reporter remained only avenue to obtain information concerning source's credibility and motivation in conversation with reporter, party had met burden on these elements); In re Grand Jury Empanelled Feb. 5, 1999, 99 F. Supp. 2d at 500-01 (where government sought audiotape of interview with person who purportedly had information concerning fraud committed by others and credibility of interviewee was at issue, and reporter possessed only copy of audiotape, government had met burden on these elements); In re Subpoena to Barnard, 1999 WL 38269, at *3 (where party had sought testimony from only person other than reporter with knowledge of conversation in question and that person had invoked Fifth Amendment right, party had met burden on these elements); In re Subpoena of Maykuth, 2006 WL 724241, at *3 (where party deposed suspected sources and reporter remained only person who could verify whether plaintiffs made certain statements, party met burden on these elements).

Compare

a. How exhaustive must search be?

While courts in the Third Circuit do not appear to have focused particular attention on the question of how exhaustive a party's search for sources other than a reporter must be, in Riley, the Court of Appeals explained that "conclusory statements fall far short of the type of specific findings of necessity which may overcome the privilege." 612 F.2d at 717.

Compare

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

While courts in the Third Circuit do not appear to have focused particular attention on the question of what proof of a search for alternative sources the party seeking disclosure from a reporter must make, in Riley, the Court of Appeals explained that "conclusory statements fall far short of the type of specific findings of necessity which may overcome the privilege." 612 F.2d at 717.

Compare

c. Source is an eyewitness to a crime

Courts in the Third Circuit do not appear to have expressly addressed this point in a relevant context.

Compare

3. Balancing of interests

The Third Circuit employs a three-part test to determine whether a person seeking disclosure from a journalist has overcome the privilege: Such a person must make specific showings that the information sought is material, relevant and necessary to the party's claims or defenses. See, e.g., Riley, 612 F.2d at 716. Specifically, the party seeking disclosure must show there is no other practical way of accessing the information, all other potential sources have been exhausted, and the information is crucial to the party’s claims or defenses. See, e.g., id. at 716-17. Ultimately, whether these elements have been sufficiently established will depend upon a balancing test in which the courts weigh the relative interests of the reporter with the interests of the party seeking disclosure. See, e.g., id. Thus, for example, a criminal defendant whose constitutional right to a fair trial is implicated by a request for disclosure will likely not need to make as great a showing to overcome the privilege as would a civil litigant whose constitutional rights were not implicated.

On the reporter's side, courts in the Third Circuit have identified several interests at stake where disclosure is sought. Courts often emphasize the importance of First Amendment-based protection for newsgathering, which protects the free flow of information and news to the public. See, e.g., Riley, 612 F.2d at 714-18; Nat'l Talent Assocs., Inc., 1997 WL 829176, at *1; Smith, 2011 WL 2115841, at *4. Protecting confidential sources has been described as vital to this process. Without the privilege, sources would be less willing to provide information for fear of retribution or embarrassment. Criden, 633 F.2d at 355-56; Riley, 612 F.2d at 714; Transcript of January 22, 2016 Hearing at 38:15-25, In re: Molycorp, Inc., No. 15-11357 (CSS) (Bankr. D. Del.), ECF No. 1105.

On the subpoenaing party's side, courts in the Third Circuit have identified a number of countervailing interests that might be at stake in any particular case. Weighing most heavily in favor of disclosure are the rights of criminal defendants. These constitutional interests include the guarantees both of due process (pursuant to the Fifth and/or Fourteenth Amendments),the Sixth Amendment's compulsory process/confrontation clauses, and the protection of the integrity of court orders and processes. Criden, 633 F.2d at 355-56; United States v. Cuthbertson I, 630 F.2d at 146-47; Parsons, 778 F. Supp. at 217-18;Transcript of January 22, 2016 Hearing at 35:2-6, In re: Molycorp, Inc., No. 15-11357 (CSS) (Bankr. D. Del.), ECF No. 1105. In the grand jury context, courts also have recognized as a countervailing interest the public interest in investigating crimes. In re Grand Jury Subpoena of Williams, 766 F. Supp. at 369 (suggesting that grand jury investigation may "rise to the level of a countervailing constitutional concern").

In determining when the interests of the subpoenaing party overcome the privilege, courts in the Third Circuit focus on the specific facts of the case. In almost every civil case, however, the First Amendment interests of the reporter have been held to outweigh the interests of the party seeking information. In criminal cases, however, the courts have explained that First Amendment rights do not automatically trump the constitutional rights of the defendant. Criden, 633 F.2d at 357; see also Cuthbertson I, 630 F.2d at 147 (explaining that the framers "did not undertake to assign priorities as between First Amendment and Sixth Amendment rights, ranking one as superior to the other" (citation omitted)).

Compare

4. Subpoena not overbroad or unduly burdensome

In criminal cases, subpoenas are governed by Federal Rule of Criminal Procedure 17(c). They may not be overbroad or frivolous. Courts have made clear that subpoenas must represent "a good faith effort to obtain identified evidence rather than a general 'fishing expedition' that attempts to use the rule as a discovery device." Cuthbertson I, 630 F.2d at 144 (citation omitted); see also Cuthbertson II, 651 F.2d at 192 (listing four requirements for obtaining unprivileged materials from third party witnesses). Rule 17(c) thus presents a ground for quashing a subpoena that is independent of the reporter's privilege. While there has been less discussion of this concept in civil cases in the Third Circuit, Federal Rule Civil Procedure 45(c)(1) similarly requires that the person issuing a subpoena "avoid imposing undue burden or expense," and a subpoena that imposes undue burden may be quashed by the court for that reason alone, Fed. R. Civ. P. 45(d)(3)(A)(iv).

Compare

5. Threat to human life

Courts in the Third Circuit do not appear to have expressly addressed this point in a relevant context.

Compare

6. Material is not cumulative

Courts in the Third Circuit do not appear to have expressly addressed this point, but in Riley, in the course of concluding that a subpoena should be quashed, the court observed that, since multiple witnesses had testified that a certain person had provided information about the plaintiff to the reporter, the plaintiff had failed to show that the reporter's testimony on the same subject was necessary. 612 F.2d at 718.

Compare

7. Civil/criminal rules of procedure

Subpoenas in criminal cases may not be overbroad or frivolous and must represent a good faith effort to identify evidence. Fed. R. Crim. P. 17(c). In civil cases, the subpoenaing party must avoid imposing undue burden or expense. Fed. R. Civ. P. 45(d)(1).

Compare

8. Other elements

Courts in the Third Circuit do not appear to have addressed other elements.

Compare

C. Waiver or limits to testimony

1. Is the privilege waivable?

Courts in the Third Circuit have described a number of actions and circumstances that do not constitute a waiver of the privilege. For example, because the privilege belongs to the reporter, it cannot be waived by the source, even where the source voluntarily identifies herself. Criden, 633 F.2d at 359-60; but see id. at 360 (although not waiver, source's self-identification tipped balance of interests between party's need for testimony and reporter's First Amendment rights). Courts have also found that partial testimony does not waive the privilege as to other matters. See, e.g., Sklar v. Ryan, 752 F. Supp. 1252, 1267 (E.D. Pa. 1990). Finally, the presence of a third party during an interview does not constitute a waiver if the third party is in some fashion connected to the interview. Damiano, 168 F.R.D. at 498-99 (reporter's decision to permit Bob Dylan's publicist to attend interview with Dylan did not waive privilege). And, as noted above in section III.F., with respect to the federal privilege, the courts have held that publication is not itself a waiver. (Publication can, however, operate as a waiver under state shield laws. See § III.F supra.)

By the same token, however, the Court of Appeals has suggested that a reporter might waive the privilege if he or she filed suit to vindicate his or her own rights in a matter to which the privileged information was somehow relevant. See Riley, 612 F.2d at 716.

Compare

2. Elements of waiver

a. Disclosure of confidential source's name

Courts in the Third Circuit do not appear to have expressly addressed this point in a relevant context. As noted in the preceding section, however, disclosure of a source's name by the source does not waive the reporter's privilege.

Compare

b. Disclosure of non-confidential source's name

Courts in the Third Circuit do not appear to have expressly addressed this point in a relevant context. As noted above, however, disclosure of a source's name by the source does not waive the reporter's privilege.

Compare

c. Partial disclosure of information

At least one court in the Third Circuit has expressly held that partial disclosure of information does not waive the privilege as to other matters, Sklar, 752 F. Supp. at 1267, and such a principle is implicit in cases cited elsewhere in this outline in which courts have held that disclosure waives the privilege only as to the matter disclosed. See § VI.C.1 supra.

Compare

d. Other elements

Courts in the Third Circuit do not appear to have expressly addressed this point in a relevant context.

Compare

3. Agreement to partially testify act as waiver?

District courts have at least suggested that partial testimony and even voluntary appearances at depositions do not waive the privilege. See, e.g., Damiano, 168 F.R.D. at 498-99; Sklar, 752 F. Supp. at 1267.

Compare

VII. What constitutes compliance?

A. Newspaper articles

Courts in the Third Circuit do not appear to have expressly addressed this point in a relevant context, although one district court has held that, notwithstanding that newspaper articles are self-authenticating pursuant to Federal Rule of Evidence 902(6), "there may still remain questions of authority and responsibility for statements contained therein" that may require testimony from the reporter or other person with knowledge. In re Vmark Software, Inc. Sec. Litig., No. Civ. 97-227, 1998 WL 42252, at *2 (E.D. Pa. Jan. 8, 1998) ("Vmark"); see also, In re Subpoena of Maykuth, 34 Media L. Rep. (BNA) 1476, 2006 WL 724241, at *3 (E.D. Pa. 2006).

Compare

B. Broadcast materials

Courts in the Third Circuit do not appear to have expressly addressed this point in a relevant context.

Compare

C. Testimony vs. affidavits

At least one district court in the Third Circuit has held that an affidavit from a reporter concerning a published article is insufficient since, although admissible for purposes of motions for summary judgment, the matter in the affidavit would be hearsay for purposes of trial. Vmark, 1998 WL 42252, at *3; see also Kitzmiller, 379 F. Supp. 2d at 684-90 (conducting a Riley privilege analysis even where subpoenaed parties provided affidavits attesting to the accuracy of relevant newspaper articles).

Compare

D. Non-compliance remedies

1. Civil contempt

a. Fines

Where a reporter or news organization fails to comply with a subpoena after a court has ruled that it is valid and the recipient is not entitled to invoke the reporter's privilege, courts in the Third Circuit typically will hold the reporter in civil contempt and daily fines are the penalty most often imposed. Such fines often are stayed pending the appeal of the contempt citation, however. See, e.g., In re Gronowicz, 764 F.2d at 984 (affirming contempt citation imposing fine of $500 per day on author, which fine was stayed pending appeal); Cuthbertson I, 630 F.2d at 149 (affirming contempt citation imposing fine of $1 per day, which fine was stayed pending appeal).

Compare

b. Jail

Although reported opinions do not disclose cases in which a journalist cited for civil contempt for refusal to respond to a valid subpoena has been incarcerated, one lower court initially ordered the journalist placed in the custody of the marshal. The judge then agreed to release her to the custody of her attorney. Criden, 633 F.2d at 350.

Compare

2. Criminal contempt

Courts in the Third Circuit do not appear to have expressly addressed this point in a relevant context.

Compare

3. Other remedies

Courts in the Third Circuit do not appear to have expressly addressed this point in a relevant context.

Compare

VIII. Appealing

A. Timing

1. Interlocutory appeals

The Third Circuit has held that both a reporter who moves to quash a subpoena and receives less protection than was sought and a reporter who declines to comply with a valid subpoena and is therefore cited for contempt may take an immediate appeal on the ground that either order is final for purposes of appeal. Cuthbertson II, 651 F.2d at 193.

In addition, third parties with an interest in material or testimony to be presented at trial (such as a new organization whose newsgathering material has somehow found its way into the hands of a party without the organization's consent) may intervene in pending matters to seek a protective order. They can obtain immediate appellate review if the request is denied. United States v. RMI Co., 599 F.2d 1183, 1186 (3d Cir. 1979) ("[I]t is settled law that persons affected by the disclosure of allegedly privileged materials may intervene in pending criminal proceedings and seek protective orders, and if protection is denied, seek immediate appellate review.").

Compare

2. Expedited appeals

In the Third Circuit, expedited appeals are governed by Local Appellate Rule 4.1, which provides that a motion for expedited appeal must be filed within 14 days of the notice of appeal and must set forth the exceptional reason that warrants expedition and be accompanied by a proposed briefing schedule.

Compare

B. Procedure

1. To whom is the appeal made?

In certain circumstances, where an initial ruling is made by a magistrate judge, the losing party has a right to file an objection with the district court judge and, in other circumstances, the losing party may have a right to take an appeal to either the district court judge or directly to the Court of Appeals. The applicable rules should be consulted with an eye toward the facts of the particular case. Where a decision is rendered by a district court judge, appeal lies in the Court of Appeals.

Compare

2. Stays pending appeal

While the courts in the Third Circuit do not appear to have expressly addressed the standards governing issuance of a stay pending appeal in the context of an order overruling the journalist's privilege, such stays have been granted (without opinion) both by district courts and the Third Circuit. See, e.g., Cuthbertson I, 630 F.2d at 143; In re Gronowicz, 764 F.2d at 984. In other contexts, in deciding whether to stay an order pending appeal, courts typically consider (1) the degree to which the movant has shown that he or she is likely to succeed on the merits of the appeal; (2) whether the movant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceedings; and (4) whether issuance of the stay will harm the public interest. See, e.g., Republic of Philippines v. Westinghouse Elec. Corp., 949 F.2d 653, 658 (3d Cir. 1991); Novartis Consumer Health, Inc. v. Johnson & Johnson-Merck Consumer Pharm. Co., No. 00-5361 (WGB), 2001 WL 493266, at *1 (D.N.J. Jan. 17, 2001).

Compare

3. Nature of appeal

Whether a reporter should seek an appeal or a writ of mandamus (or pursue both avenues of relief simultaneously) depends on the particular circumstances of the case.

Compare

4. Standard of review

In Smith v. Borough of Dunmore, 516 F. App’x at 197, the Third Circuit utilized de novo review as to the District Court’s decision regarding the reporter’s privilege.  Furthermore, in Cuthbertson II, 651 F.2d at 192-93, the Third Circuit indicated that, on appeals concerning application of the reporter's privilege, it would undertake "plenary" review of questions of law, apply an "abuse of discretion" standard to questions involving the lower court's exercise of discretion, and apply the "clearly erroneous" test to the lower court's findings of fact.

Compare

5. Addressing mootness questions

The Third Circuit has held that, as a matter of the dignity of the court and its ability to enforce its orders, a contempt citation does not become moot simply because the proceedings that gave rise to the order have ceased. Criden, 633 F.2d at 351-53.

Compare

6. Relief

A federal court of appeals can reverse (i.e., quash the subpoena), modify the subpoena to make it valid, or remand the matter to the trial court if additional factual findings or other proceedings are necessary to determine whether the subpoena is valid and enforceable.

Compare

IX. Other issues

A. Newsroom searches

Courts in the Third Circuit do not appear to have addressed directly the Privacy Protection Act, 42 U.S.C. § 2000aa, in a context relevant to reporters.

Compare

B. Separation orders

Courts in the Third Circuit do not appear to have addressed directly the question of whether and under what circumstances a separation order (that is, an order prohibiting a reporter who might be subpoenaed to testify from attending the trial in question) is appropriate.

Compare

C. Third-party subpoenas

Courts in the Third Circuit do not appear to have addressed directly the question of what rights, if any, a reporter has in connection with the issuance of a subpoena to a third party, such as a credit card company or telephone service provider, for records concerning a reporter's transactions or calls.

Compare

D. The source's rights and interests

No cases in the Third Circuit appear to address directly the question of what rights, if any, the source has as against disclosure of his or her identity or to intervene for purposes of attempting to quash a subpoena addressed to a news organization, nor do the courts appear to have addressed directly the question of whether a source may maintain a breach of contact action against a journalist who, in response to a court order, discloses the identity of a source to whom the journalist had promised confidentiality.

Compare