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Virginia

Reporter's Privilege Compendium

Brett Spain
Willcox & Savage, P.C.
440 Monticello Ave., Ste. 2200
Norfolk, Virginia 23510
(757) 628-5500

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I. Introduction: History & Background

Virginia does not have a shield law, but courts recognize a reporter’s privilege based on the First Amendment to the U.S. Constitution. A court faced with a claim of privilege must perform a balancing test, taking into account (1) whether the information sought in the subpoena is relevant, (2) whether the information can be obtained by alternative means, and (3) whether there is a compelling interest in the information. There is only one case from the Supreme Court of Virginia applying the privilege, so lower courts and federal courts in Virginia frequently cite to federal precedent to determine whether the privilege applies in a specific case.

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II. Authority for and source of the right

Virginia does not have a shield law, but courts recognize a reporter's privilege based on the First Amendment to the U.S. Constitution.  The privilege has been limited in recent cases, particularly by the Fourth Circuit and federal courts in Virginia, and in criminal cases.

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A. Shield law statute

There is no shield law statute in Virginia.

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B. State constitutional provision

The Constitution of Virginia does not contain an express shield law provision, nor has one been read into any provision.

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C. Federal constitutional provision

The Virginia Supreme Court has recognized a reporter's privilege under the First Amendment of the United States Constitution. The privilege, which affords both confidentiality to the information obtained and protection to the identity of the source, was established in Brown v. Commonwealth, 214 Va. 755, 204 S.E.2d 429 (1974).

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D. Other sources

There are no other sources of a reporter's privilege in Virginia.

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III. Scope of protection

A. Generally

The privilege is qualified. The scope of the privilege in criminal cases was clearly laid out in Brown v. Commonwealth, 214 Va. 755, 204 S.E.2d 429 (1974). The Supreme Court of Virginia has not addressed the scope of the privilege for civil cases. Lower state and federal courts, however, have applied a 3-part test adopted by the Fourth Circuit Court of Appeals.  In recent decisions, federal courts have recognized that the privilege is more limited in criminal cases.  See United States v. Sterling, 724 F.3d 482, 492 (4th Cir. 2013) (“There is no First Amendment testimonial privilege, absolute or qualified, that protects a reporter from being compelled to testify by the prosecution or the defense in criminal proceedings about criminal conduct that the reporter personally witnessed or participated in, absent a showing of bad faith, harassment, or other such non-legitimate motive, even though the reporter promised confidentiality to his source.”).

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B. Absolute or qualified privilege

The privilege is qualified. Courts have adopted a three-part test to determine when the qualified privilege attaches. The test balances (1) whether the information is relevant, (2) whether the information can be obtained by alternative means, and (3) whether there is a compelling interest in the information. In re Multi-Jurisdictional Grand Jury, 64 Va. Cir. 423 (Chesterfield 2004); Clemente v. Clemente, 56 Va. Cir. 530 (Arlington 2001); Philip Morris Cos. v. Am. Broad. Co., 36 Va. Cir. 1, 18 (Richmond 1994); Ashcraft v. Conoco, Inc., 218 F.3d 282 (4th Cir. 2000); Church of Scientology Int’l v. Daniels, 992 F.2d 1329 (4th Cir. 1993); LaRouche v. Nat’l Broad. Co., 780 F.2d 1134 (4th Cir. 1986); Gilbertson v. Jones, Civil No. 3:16cv255 (REP), 2016 WL 6518659 (E.D. Va. Sept. 22, 2016); Federico v. Lincoln Military Hous., LLC, No. 2:12-CV-80, 2014 WL 3962823 (E.D. Va. Aug. 13, 2014); Hatfill v. N.Y. Times Co., 459 F. Supp. 2d 462, 466-67 (E.D. Va. 2006); Hatfill v. N.Y. Times Co., 242 F.R.D. 353 (E.D. Va.  2006).

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C. Type of case

1. Civil

The qualified privilege applies in civil and criminal suits although recent federal decisions have recognized that the privilege is more limited in criminal cases. Each attempt to require the disclosure of confidential information is examined on a case-by-case basis. Although the Supreme Court of Virginia has not addressed the privilege in a civil case, lower courts in Virginia have applied the privilege in civil suits. See Philip Morris Cos. v. Am. Broad. Co., 36 Va. Cir. 1 (Richmond 1994); Clemente v. Clemente, 56 Va. Cir. 530 (Arlington 2001). Federal district courts in Virginia likewise have applied the privilege in a civil suit.  See Horne v. WTVR, LLC, Civ. No. 3:16-cv-000092, 2017 WL 2727900 (E.D. Va. Feb. 13, 2017) (refusing to compel disclosure of a confidential source in a defamation case); Gilbertson v. Jones, Civil No. 3:16cv255, 2016 WL 6518659 (E.D. Va. Sept. 22, 2016); Hatfill v. N.Y. Times Co., 459 F. Supp. 2d 462, 466-67 (E.D. Va. 2006); Hatfill v. N.Y. Times Co., 242 F.R.D. 353 (E.D. Va.  2006); Bischoff v. United States, No. 2:96CV923, 1996 WL 807391 (E.D. Va. Sept. 20, 1996) (quashing subpoena in civil case alleging that the government provided confidential tax information to a reporter); Stickels v. Gen. Rental Co., 750 F. Supp. 729 (E.D. Va. 1990) (acknowledging privilege but holding that it had been overcome as to non-confidential pictures of an accident scene); see also Church of Scientology Int’l v. Daniels, 992 F.2d 1329 (4th Cir. 1993) (upholding denial of motion to compel in a defamation case as to materials from an editorial board meeting); LaRouche v. Nat’l Broad. Co., 780 F.2d 1134 (4th Cir. 1986) (applying privilege to protect confidential sources in a defamation action).  The Fourth Circuit has held that there is a less compelling need for information from a reporter in a civil case and, therefore, the 3-part test from LaRouche applies in the civil context.  See United States v. Sterling, 724 F.3d 482, 496-98 (4th Cir. 2013); Federico v. Lincoln Military Hous., LLC, No. 2:12-CV-80, 2014 WL 3962823 (E.D. Va. Aug. 13, 2014).

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2. Criminal

The qualified privilege has been applied in criminal cases by both state and federal courts in Virginia. See Brown v. Commonwealth, 214 Va. 755, 204 S.E.2d 429 (1974); Commonwealth v. Townley, 46 Med. L. Rptr. 1294 (Va. Cir. Ct. 2018) (quashing subpoena for unaired material relating to statements made by the alleged victim in a criminal case); Commonwealth v. Jones, 82 Va. Cir. 379 (Norfolk 2011) (refusing to apply privilege to quash subpoena to a reporter to testify about a jailhouse interview of a man charged with murder); In re Multi-Jurisdictional Grand Jury, 64 Va. Cir. 423 (Chesterfield 2004) (holding that the privilege had been overcome with respect to materials relating to an interview with a murder suspect); United States v. Sterling, 724 F.3d 482 (4th Cir. 2013) (refusing to quash a subpoena to a reporter to testify about the source of classified information received by the reporter in a criminal case against a former CIA officer); In re Shain, 978 F.2d 850 (4th Cir. 1992) (refusing to apply privilege to quash subpoenas to reporters who had interviewed a South Carolina state senator charged with bribery, where there was no issue of confidentiality or government harassment).  Recent federal decisions, however, have cast doubt on the applicability of the privilege in criminal matters.  See United States v. Sterling, 724 F.3d 482, 492 (4th Cir. 2013) (“There is no First Amendment testimonial privilege, absolute or qualified, that protects a reporter from being compelled to testify by the prosecution or the defense in criminal proceedings about criminal conduct that the reporter personally witnessed or participated in, absent a showing of bad faith, harassment, or other such non-legitimate motive, even though the reporter promised confidentiality to his source.”).

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3. Grand jury

The Virginia Supreme Court has not articulated a different standard for grand jury subpoenas.

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D. Information and/or identity of source

The privilege protects the identity of a confidential source. Brown v. Commonwealth, 214 Va. 755, 757, 204 S.E. 2d 429, 431 (1974); LaRouche v. Nat’l Broad. Co., 780 F.2d 1134 (4th Cir. 1986) (applying privilege to protect confidential sources in a defamation action); Horne v. WTVR, LLC, Civ. No. 3:16-cv-000092, 2017 WL 2727900 (E.D. Va. Feb. 13, 2017) (refusing to compel disclosure of a confidential source in a defamation case); Bischoff v. United States, No. 2:96CV923, 1996 WL 807391 (E.D. Va. Sept. 20, 1996) (quashing subpoena in civil case alleging that the government provided confidential tax information to a reporter). There is also a valid argument that the privilege protects information that could implicitly identify a confidential source. See Philip Morris Cos. v. Am. Broad. Co., 36 Va. Cir. 1 (Richmond 1994) (extending privilege to subpoenas issued to third parties with the intent of indirectly learning identity of confidential sources).

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E. Confidential and/or nonconfidential information

Whether the information sought is confidential or non-confidential is a factor to consider in balancing the burden between an uninhibited press and a party’s need for relevant information. Clemente v. Clemente, 56 Va. Cir. 530, 531 (Arlington 2001); Commonwealth v. Townley, 46 Med. L. Rptr. 1294 (Va. Cir. Ct. 2018) (quashing subpoena for unaired material relating to statements made by the alleged victim in a criminal case); Commonwealth v. Jones, 82 Va. Cir. 379 (Norfolk 2011) (refusing to apply privilege to quash subpoena to a reporter to testify about a jailhouse interview voluntarily given by a man charged with murder and stating, “[t]he privilege does not apply here because there is no confidential information or source”); In re Multi-Jurisdictional Grand Jury, 64 Va. Cir. 423 (Chesterfield 2004) (ordering disclosure of interview materials where the person interviewed was a murder suspect and gave an interview on the record, and stating that, “the predicate for conducting the balancing of factors identified in LaRouche is the circumstance in which both confidentiality of the source material and vexation or harassment is demonstrated by the record”); United States v. Sterling, 724 F.3d 482 (4th Cir. 2013) (refusing to quash a subpoena to a reporter to testify about a confidential source of classified information received by the reporter in a criminal case against a former CIA officer); Ashcraft v. Conoco, Inc., 218 F.3d 282 (4th Cir. 2000) (reversing order holding a reporter in contempt for failing to identify a confidential source where there was no compelling need for the information); In re Shain, 978 F.2d 850 (4th Cir. 1992) (refusing to apply privilege to quash subpoenas to reporters who had interviewed a South Carolina state senator charged with bribery, where there was no issue of confidentiality or government harassment); United States v. Steelhammer, 561 F.2d 539 (4th Cir. 1977) (refusing to apply privilege to observations of reporters at a union strike where no confidential information and no government harassment was present); Gilbertson v. Jones, Civil No. 3:16cv255 (REP), 2016 WL 6518659 (E.D. Va. Sept. 22, 2016) (granting in part motion to quash a subpoena to the extent it sought production of a television station’s internal communications); Federico v. Lincoln Military Hous., LLC, No. 2:12-CV-80, 2014 WL 3962823 (E.D. Va. Aug. 13, 2014) (holding that the privilege applies to non-confidential information at least in civil cases); United States v. Lindh, 210 F. Supp. 2d 780, 783 (E.D. Va. 2002) (holding that the privilege only applies “where the journalist produces some evidence of confidentiality or government harassment”); United States v. King, 194 F.R.D. 569, 584 (E.D. Va. 2000) (holding that the privilege applies only when “both confidentiality of the source material and vexation or harassment is demonstrated by the record”); Stickels v. Gen. Rental Co., 750 F. Supp. 729 (E.D. Va. 1990) (acknowledging privilege but holding that it had been overcome as to non-confidential pictures of an accident scene).

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F. Published and/or non-published material

The privilege has been applied to both published and non-published material, although federal courts in Virginia have held that, at least in the context of criminal cases, the privilege only applies where confidential information is involved.  See, e.g., United States v. Lindh, 210 F. Supp. 2d 780, 783 (E.D. Va. 2002) (holding that the privilege only applies “where the journalist produces some evidence of confidentiality or government harassment”); United States v. King, 194 F.R.D. 569, 584 (E.D. Va. 2000) (holding that the privilege applies only when “both confidentiality of the source material and vexation or harassment is demonstrated by the record”).

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G. Reporter's personal observations

A number of courts have refused to apply the privilege to protect information learned by personal observation of a reporter.  See Commonwealth v. Jones, 82 Va. Cir. 379 (Norfolk 2011) (refusing to apply privilege to quash subpoena to a reporter to testify about a jailhouse interview voluntarily given by a man charged with murder); In re Multi-Jurisdictional Grand Jury, 64 Va. Cir. 423 (Chesterfield 2004) (ordering disclosure of materials relating to a jailhouse interview voluntarily given by a murder suspect); United States v. Sterling, 724 F.3d 482 (4th Cir. 2013) (refusing to quash a subpoena to a reporter to testify about the source of classified information received by the reporter in a criminal case against a former CIA officer); In re Shain, 978 F.2d 850 (4th Cir. 1992) (refusing to apply privilege to quash subpoenas to reporters who had interviewed a South Carolina state senator charged with bribery, where there was no issue of confidentiality or government harassment); United States v. Steelhammer, 561 F.2d 539 (4th Cir. 1977) (refusing to apply privilege to observations of reporters at a union strike where no confidential information and no government harassment was present); Gilbertson v. Jones, Civil No. 3:16cv255 (REP), 2016 WL 6518659 (E.D. Va. Sept. 22, 2016) (denying motion to quash subpoena seeking materials related to statements made by a defamation defendant where the context of the statements were at issue); Federico v. Lincoln Military Hous., LLC, No. 2:12-CV-80, 2014 WL 3962823 (E.D. Va. Aug. 13, 2014) (ordering the production of videos and communications relating to the condition of housing alleged to be sub-standard); United States v. King, 194 F.R.D. 569, 584 (E.D. Va. 2000) (refusing to quash subpoena for video of interview with a prosecution witness).

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H. Media as a party

The case law does not differentiate between situations in which the media is not a party and cases in which the media is a party. See Clemente v. Clemente, 56 Va. Cir. 530 (Arlington 2001); Commonwealth v. Townley, 46 Med. L. Rptr. 1294 (Va. Cir. Ct. 2018) (quashing subpoena for unaired material relating to statements made by the alleged victim in a criminal case); Philip Morris Cos. v. Am. Broad. Co., 36 Va. Cir. 1 (Richmond 1994); Church of Scientology Int’l v. Daniels, 992 F.2d 1329 (4th Cir. 1993) (upholding denial of motion to compel in a defamation case as to materials from an editorial board meeting); Gilbertson v. Jones, Civil No. 3:16cv255 (REP), 2016 WL 6518659 (E.D. Va. Sept. 22, 2016) (granting in part and denying in part a motion to quash a third-party subpoena to a television station in a defamation case); Federico v. Lincoln Military Hous., LLC, No. 2:12-CV-80, 2014 WL 3962823 (E.D. Va. Aug. 13, 2014) (granting in part and denying in part a motion to quash a subpoena to a reporter for information relating to the reporter’s interaction with plaintiffs in a civil case).

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I. Defamation actions

The privilege is treated no differently in defamation cases than it is treated in any other type of civil case. See Philip Morris Cos. v. Am. Broad. Co., 36 Va. Cir. 1 (Richmond 1994); Church of Scientology Int’l v. Daniels, 992 F.2d 1329 (4th Cir. 1993) (upholding denial of motion to compel in a defamation case as to materials from an editorial board meeting); LaRouche v. Nat’l Broad. Co., 780 F.2d 1134 (4th Cir. 1986) (applying privilege to protect confidential sources in a defamation action); Horne v. WTVR, LLC, Civ. A. No. 3:16-cv-000092, 2017 WL 2727900 (E.D. Va. Feb. 13, 2017) (refusing to compel disclosure of a confidential source in a defamation case); Gilbertson v. Jones, Civil No. 3:16cv255 (REP), 2016 WL 6518659 (E.D. Va. Sept. 22, 2016) (granting in part and denying in part a motion to quash a third-party subpoena to a television station in a defamation case); Hatfill v. N.Y. Times Co., 242 F.R.D. 353 (E.D. Va.  2006) (denying a motion to compel the production of reporter notes in a defamation action).  There is arguably more protection in a civil context than in criminal cases.

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IV. Who is covered

A. Statutory and case law definitions

1. Traditional news gatherers

a. Reporter

The case law does not define a “reporter.”

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b. Editor

The case law does not define an “editor.”

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c. News

The case law does not define “news.”

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d. Photo journalist

The case law does not define “photojournalist.”

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e. News organization/medium

The case law does not define “media.”

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2. Others, including non-traditional news gatherers

There is no case law determining whether the reporter’s privilege applies to non-traditional news gatherers, such as authors, freelancers, bloggers, students, unpaid news gatherers, academic researchers, or newspaper librarians.

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B. Whose privilege is it?

The case law in Virginia has not distinguished between reporters and their media organizations.  There is no case law addressing whether the privilege also belongs to the source.

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V. Procedures for issuing and contesting subpoenas

A. What subpoena server must do

1. Service of subpoena, time

For rules relating to the timing and service of subpoenas, see Va. Code §§ 8.01-293, 8.01-271.1, 8.01-407; Rule 4:9 of the Rules of the Supreme Court of Virginia.

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2. Deposit of security

There is no requirement that the subpoenaing party deposit any security in order to have a subpoena served.

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3. Filing of affidavit

There is no affidavit requirement for serving a subpoena on a reporter.

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4. Judicial approval

A judge or magistrate does not need to approve a subpoena before it may be served on a reporter.

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5. Service of police or other administrative subpoenas

Generally, administrative agencies have the power to, at the request of a party, issue subpoenas. See, e.g., Va. Code §§ 2.2-4022, 9.1-206, 18.2-456(5), 19.2-267.1.

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B. How to Quash

1. Contact other party first

Making contact with the subpoenaing party, through its counsel where possible, is recommended but not required.

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2. Filing an objection or a notice of intent

Virginia practice does not require filing a notice of intent to quash.

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3. File a motion to quash

a. Which court?

The motion to quash should be filed in the court from which the subpoena was issued or in which the underlying case is pending.

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b. Motion to compel

The media party should not wait for the subpoenaing party to file a motion to compel before filing a motion to quash.

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c. Timing

Generally, the motion should be filed as soon as practicable, to avoid surprise to the court.

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d. Language

There is no stock language or preferred text that should be included in a motion.

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e. Additional material

Not applicable.

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4. In camera review

a. Necessity

The case law does not require the court to conduct an in camera review of materials or to interview the reporter prior to deciding a motion to quash.

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There are no consequences to consenting to an in camera review.

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c. Consequences of refusing

It is likely that a reporter or publisher that does not consent to an in camera review would be held in contempt of court.

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5. Briefing schedule

Briefing schedules vary locally.

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6. Amicus briefs

For rules relating to amicus participation, see Rules 5A:23 and 5:30 of the Rules of the Supreme Court of Virginia.

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VI. Substantive law on contesting subpoenas

A. Burden, standard of proof

When a member of the news media validly asserts the reporter’s privilege, the burden then shifts to the subpoenaing party to demonstrate that the privilege should be overcome.

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B. Elements

1. Relevance of material to case at bar

The first prong of the three-part test is that the information sought must be relevant to the case at issue, and some cases hold that the relevance standard is higher than the relevance standard for discovery in general.  Church of Scientology Int’l v. Daniels, 992 F.2d 1329 (4th Cir. 1993) (noting that plaintiff in a defamation case had failed to show the relevance of materials sought in discovery where the defendant had offered a stipulation and stating, “the consideration that Daniels offered to stipulate to the accuracy of the quotation that appeared in USA Today makes the relevance of the materials CSI seeks questionable, rather than critical to the case, as the law requires”); Hatfill v. N.Y. Times Co., 242 F.R.D. 353 (E.D. Va.  2006) (“The standard for relevance under LaRouche is higher than the standard under Rule 26. Under LaRouche, the information must be actually relevant.”); see also Commonwealth v. Townley, 46 Med. L. Rptr. 1294 (Va. Cir. Ct. 2018) (quashing subpoena for unaired material relating to statements made by the alleged victim in a criminal case where the defendant could not show that the information was material).

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2. Material unavailable from other sources

The second prong of the three-part test is that the material sought must be unobtainable by alternative means. See Philip Morris Cos. v. Am. Broad. Co., 36 Va. Cir. 1 (Richmond 1994); United States v. Sterling, 724 F.3d 482, 506-08 (4th Cir. 2013) (refusing to quash a subpoena to a reporter to testify about the source of classified information received by the reporter in a criminal case against a former CIA officer and noting that circumstantial evidence is not a substitute for direct evidence relevant to the proceeding); Church of Scientology Int’l v. Daniels, 992 F.2d 1329 (4th Cir. 1993) (affirming denial of motion to compel where, among other things, the plaintiff in a defamation action had made no effort to pursue alternative sources for the information requested in discovery); LaRouche v. Nat’l Broad. Co., 780 F.2d 1134 (4th Cir. 1986) (applying privilege to protect confidential sources in a defamation action where plaintiff in a defamation had not exhausted other alternative sources for the information); Gilbertson v. Jones, Civil No. 3:16cv255, 2016 WL 6518659 (E.D. Va. Sept. 22, 2016) (denying motion to quash subpoena seeking materials related to statements made by a defamation defendant where the context of the statements were at issue and materials were not available from other sources); Bischoff v. United States, No. 2:96CV923, 1996 WL 807391 (E.D. Va. Sept. 20, 1996) (quashing subpoena in civil case alleging that the government provided confidential tax information to a reporter where the plaintiffs had made no effort to identify the source through other means).

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a. How exhaustive must search be?

The case law does not discuss what constitutes an exhaustive search, although at least one court found compelling disclosure to be premature at the outset of discovery. Philip Morris Cos. v. Am. Broad. Co., 36 Va. Cir. 1 (Richmond 1994).

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

The subpoenaing party should demonstrate that it has attempted to locate the information from sources other than the news media member claiming the privilege. See Philip Morris Cos. v. Am. Broad. Co., 36 Va. Cir. 1 (Richmond 1994).

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c. Source is an eyewitness to a crime

This can be a factor for the court to consider in applying the privilege. Commonwealth v. Jones, 82 Va. Cir. 379 (Norfolk 2011) (refusing to apply privilege to quash subpoena to a reporter to testify about a jailhouse interview voluntarily given by a man charged with murder); In re Multi-Jurisdictional Grand Jury, 64 Va. Cir. 423 (Chesterfield 2004) (jailhouse interview given by a murder suspect); United States v. Sterling, 724 F.3d 482 (4th Cir. 2013) (refusing to quash a subpoena to a reporter to testify about the source of classified information received by the reporter in a criminal case against a former CIA officer); Bischoff v. United States, No. 2:96CV923, 1996 WL 807391 (E.D. Va. Sept. 20, 1996) (quashing subpoena in civil case alleging that the government provided confidential tax information to a reporter and noting that the privilege still applies in a civil case even if the underlying conduct is alleged to be criminal).

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3. Balancing of interests

The reporter’s privilege requires the court to balance the interests between the freedom of the press and the right of a defendant to compel disclosure. Clemente v. Clemente, 56 Va. Cir. 530, 531 (Arlington 2001); Philip Morris Cos. v. Am. Broad. Co., 36 Va. Cir. 1, 18 (Richmond 1994); Ashcraft v. Conoco, Inc., 218 F.3d 282 (4th Cir. 2000). If the privilege applies, the party moving for disclosure must demonstrate a compelling need for the information.  Ashcraft v. Conoco, Inc., 218 F.3d 282 (4th Cir. 2000) (reversing order holding a reporter in contempt for failing to identify a confidential source where there was no compelling need for the information); Horne v. WTVR, LLC, Civ. No. 3:16-cv-000092, 2017 WL 2727900 (E.D. Va. Feb. 13, 2017) (refusing to compel disclosure of a confidential source in a defamation case where the plaintiff had failed to demonstrate a compelling need for the information); Hatfill v. N.Y. Times Co., 242 F.R.D. 353 (E.D. Va.  2006) (denying motion to compel the production of reporter notes where the plaintiff did not know what the notes said, there was no evidence that the reporter showed the notes to the reporter alleged to have defamed the plaintiff, and the plaintiff otherwise had not shown a compelling need for the notes).

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4. Subpoena not overbroad or unduly burdensome

A court may issue a protective order to protect a person from “annoyance, embarrassment, oppression, or undue burden or expense.” See Rules of the Supreme Court of Virginia, Rule 4:1(c).

Rule 4:1(b)(1) of the Rules of the Supreme Court of Virginia states that the frequency or extent of use of discovery in civil cases may be limited by the court if “the discovery is unduly burdensome or expensive, taking into account the needs of the case, the amount in controversy, limitations on the parties’ resources, and the importance of the issues at stake in the litigation.”

Rule 3A:12(b) of the Rules of the Supreme Court of Virginia states that when “subpoenaed writings and objects are of such nature or content that disclosure to other parties would be unduly prejudicial, the court, upon written motion and notice to all parties, may grant such relief as it deems appropriate, including limiting disclosure, removal, and copying.”

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5. Threat to human life

The court is not required to weigh whether the information subpoenaed involves a threat to human life.

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6. Material is not cumulative

Rule 4:1(b)(1) of the Rules of the Supreme Court of Virginia states that the frequency or extent of use of civil discovery may be limited by the court if “the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive.”

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7. Civil/criminal rules of procedure

A motion to quash should be directed to a frivolous subpoena, and either a motion to quash or modify the subpoena or a motion for a protective order should be directed to a burdensome one.

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8. Other elements

Rule 4:1(b)(6) of the Rules of the Supreme Court of Virginia states that when a party withholds information otherwise discoverable in a civil suit “by claiming that it is privileged or subject to protection as trial preparation material, the party shall make the claim expressly and shall describe the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection.”

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C. Waiver or limits to testimony

1. Is the privilege waivable?

There is no case law in Virginia addressing whether the privilege is waivable by the reporter.  The Fourth Circuit, however, has held in dicta that a reporter waives the privilege by violating a confidentiality agreement and disclosing the identity of a source to a third party.  See United States v. Sterling, 724 F.3d 482, 508-09 (4th Cir. 2013) (refusing to quash a subpoena to a reporter to testify about the source of classified information received by the reporter in a criminal case against a former CIA officer).

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2. Elements of waiver

a. Disclosure of confidential source's name

There is no case law in Virginia addressing whether the privilege is waivable.  The Fourth Circuit, however, has held in dicta that a reporter waives the privilege by violating a confidentiality agreement and disclosing the identity of a source to a third party.  See United States v. Sterling, 724 F.3d 482, 508-09 (4th Cir. 2013) (refusing to quash a subpoena to a reporter to testify about the source of classified information received by the reporter in a criminal case against a former CIA officer).

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b. Disclosure of non-confidential source's name

There is no case law addressing whether the privilege is waivable.

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c. Partial disclosure of information

There is no case law addressing whether the privilege is waivable.

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d. Other elements

There is no case law addressing whether the privilege is waivable.

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3. Agreement to partially testify act as waiver?

There is no case law addressing whether a reporter’s agreement to partially testify serves to waive the privilege.

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VII. What constitutes compliance?

A. Newspaper articles

Newspapers are generally not treated as self-authenticating.  Commonwealth v. Jones, 82 Va. Cir. 379 (Norfolk 2011) (refusing to apply privilege to quash subpoena to a reporter to testify about a jailhouse interview voluntarily given by a man charged with murder and noting that statements in a newspaper article would be hearsay if sought to be admitted at trial).

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B. Broadcast materials

Broadcast materials are generally not treated as self-authenticating.

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C. Testimony vs. affidavits

Some courts have accepted affidavits authenticating a published item, but testimony is preferable. A court will typically accept the parties’ stipulation as to the authenticity of a published item. A subpoena will not be quashed simply because the parties to the case refuse to stipulate that a reporter would testify that an article accurately recited the relevant parts of an interview.  Commonwealth v. Jones, 82 Va. Cir. 379 (Norfolk 2011).

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D. Non-compliance remedies

A court may utilize either civil or criminal contempt proceeding to impose fines or a jail sentence to compel a reporter to comply with a valid subpoena.

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1. Civil contempt

The purpose of civil contempt is to coerce the contemnor into doing what he had previously refused to do. Int’l Union, UMW v. Covenant Coal Corp., 12 Va. App. 135, 402 S.E.2d 906 (1991). Thus, the reporter holds the keys to his jail cell in his pocket because the contemnor will be released from jail when he purges himself of the contempt.

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a. Fines

When a reporter is summarily held in civil contempt in the circuit court, there is no cap on the fine that may be imposed by the court to compel compliance. When a reporter is summarily held in contempt in the district court, the fine shall not exceed $250. Virginia Code § 18.2-458.

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b. Jail

When a reporter is summarily held in civil contempt in the circuit court, there is no limit to the amount of time a reporter may remain in jail. When a reporter is summarily held in contempt in the district court, the term of imprisonment shall not exceed 10 days. Virginia Code § 18.2-458.

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2. Criminal contempt

Virginia Code § 18.2-456(5) states that a circuit court judge may summarily punish contempt when then there is disobedience or resistance to any lawful process, judgment, decree, or order of the court by, among others, a witness before the court. This section includes subpoenas directed to a witness. See Bellis v. Commonwealth, 241 Va. 257, 402 S.E.2d 211 (1991).

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3. Other remedies

There are no reported cases discussing other remedies, such as default judgments against the media, with respect to the reporter’s privilege.

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VIII. Appealing

A. Timing

1. Interlocutory appeals

The jurisdiction of the Supreme Court to hear interlocutory appeals is purely statutory. Lancaster v. Lancaster, 86 Va. 201, 204, 9 S.E. 988, 989 (1889). Section 8.01-670(B)(1) permits interlocutory appeals only in certain chancery cases.

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2. Expedited appeals

There are no provisions in the Virginia Code that allow for an expedited appeal for news media subpoenas.

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B. Procedure

1. To whom is the appeal made?

The circuit court hears appeals from the district court. Based upon the nature of the action, appeals from a final judgment of a circuit court may be made to the Court of Appeals or directly to the Supreme Court. Virginia Code §§ 8.01-670, 672. The appellate jurisdiction of the Court of Appeals includes all criminal cases not involving imposition of the death penalty. Virginia Code § 17.1-406. In most civil cases, appeals must go directly to the Supreme Court of Virginia.

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2. Stays pending appeal

Virginia Code § 8.01-676.1(D) states that the court from which an appeal is sought may refuse to suspend the execution of a decree in cases involving support, custody, or when a judgment refuses, grants, modifies, or dissolves an injunction. In all other cases, an appellant may have the execution of a decree suspended during the appeal if adequate security is provided and the appeal is timely prosecuted. Virginia Code § 8.01-676.1(C).

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3. Nature of appeal

There is an appeal of right from the district court to the circuit court. There is an appeal of right from the circuit court to the Court of Appeals in most cases falling within their civil appellate jurisdiction. Appeals of criminal convictions to the Court of Appeals is by petition. There is an appeal of right from the circuit court to the Supreme Court for death penalty convictions, writs of habeas corpus, from the final decision of the State Corporation Commission, or from proceedings filed under Virginia Code §§ 54.1-3935 or 54.1-3937. Virginia Code § 17.1-406(B). All other cases within the appellate jurisdiction of the Supreme Court are to be made via petitions for discretionary review. Virginia Code § 8.01-670. A mandamus action “lies to compel, not to revise or correct action, however erroneous it may have been, and is not like a writ of error or appeal, [which is] a remedy for erroneous decisions.” Bd. of Supervisors v. Combs, 160 Va. 487, 498, 169 S.E. 589, 593 (1933).

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4. Standard of review

The general standard of review is that the judgment of a trial court will not be set aside unless it appears from the evidence that the judgment is either plainly wrong or that there is no evidence to support it. Virginia Code §8.01-680.

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5. Addressing mootness questions

The Supreme Court of Virginia has not addressed the mootness issue that arises when the trial or grand jury for which a reporter was subpoenaed has concluded. However, Virginia appellate courts do recognize that a court may adjudicate a controversy under the capable of repetition but evading review exception to the requirement of standing or justiciability.  Commonwealth ex rel. State Water Control Bd. v. APCO, 12 Va. App. 73, 402 S.E.2d 703 (1991).  The Fourth Circuit has held that these disputes are still ripe under this exception.  See, e.g., In re Shain, 978 F.2d 850, 852 n.2 (4th Cir. 1992).

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6. Relief

Generally speaking, an appellate court may either vacate the contempt citation or remand the case to the trial court to reconsider the issue in light of the appellate decision.

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IX. Other issues

A. Newsroom searches

There are no reported cases in Virginia addressing the federal Privacy Protection Act. Virginia has no act similar to the federal Privacy Protection Act. In several unreported cases, circuit courts have quashed search warrants upon motions filed by the media. Experience suggests that neither prosecutors, magistrates, or judges are familiar with the Act. It is essential to get the issue to a court as soon as possible.

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B. Separation orders

This issue has not been litigated in a reported Virginia case.

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C. Third-party subpoenas

Philip Morris Cos. v. Am. Broad. Co., 36 Va. Cir. 1 (Richmond 1994), extended the privilege to protect third party records that could be used to determine the identity of a confidential source, such as credit card records, telephone billing records, and airline records of the reporter.

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D. The source's rights and interests

There is no case law addressing the rights and interests of the source of the information.

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