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Wyoming

Reporters Privilege Compendium

Bruce T. Moats
Law Office of Bruce T. Moats
2515 Pioneer Avenue
Cheyenne, Wyoming 82001

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I. Introduction: History & Background

Anecdotal evidence indicates that few subpoenas are issued to news organizations in Wyoming. The subpoenas that have been issued usually ask the reporter to testify that his or her story is accurate. The infrequent use of subpoenas on news organizations may explain why the state has never enacted a shield law, or why there is no case law from the Wyoming Supreme Court, the state’s only appellate court, regarding the service of subpoenas on news organizations. The only known case in Wyoming where a news organization moved to quash a subpoena took place in the U.S. District Court for the District of Wyoming. The court denied the motion to quash, and the decision was not appealed to the Tenth Circuit Court of Appeals. Order on Appeal from Magistrate's Order, Wilson v. Amoco, Docket No. 96-CV-0124-B (D. Wyo. filed April 8, 1998). A state court is likely to look to federal law in any motion to quash a subpoena served on the news media because Wyoming does not have a shield law and has little case law regarding the state constitutional declaration of the right to freedom of speech and of the press.

No Wyoming journalist is known to have been fined or jailed for failing to comply with a subpoena.

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II. Authority for and source of the right

A. Shield law statute

Wyoming does not have a shield law. The Wyoming Press Association has discussed seeking the enactment of such a law, but no bill has ever been filed in the state legislature.

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B. State constitutional provision

Article 1, Section 20 of the Wyoming Constitution states: “Every person may freely speak, write and publish on all subjects, being responsible for the abuse of that right.” The provision has not been interpreted by the courts in regard to its effect on any reporter’s privilege. A federal district court has found that the state constitutional provision is broader than that found in the First Amendment to the U.S. Constitution as it also guarantees the right to publish. Tate v. Akers, 409 F. Supp. 978 (D. Wyo. 1976) aff’d 565 F.2d 1166 (10th Cir. 1977). No state court has confirmed this interpretation by the federal court, and exactly how this broader right might affect the reporter's privilege in Wyoming is yet to be tested.

The Wyoming Supreme Court has ruled that any recourse to the Wyoming Constitution as an independent source for recognizing or protecting an individual right, such as freedom of speech or the press, “must spring from a process that is articulable, reasonable, and reasoned.” Saldana v. State, 846 P.2d 604, 621 (Wyo. 1993). In other words, a party must articulate specifically why the state constitutional provision should be held to provide a more comprehensive or broader right than does the federal constitution. That process in regard to freedom of the press has not yet been undertaken in Wyoming.

In the context of public access to governmental information, the Wyoming Supreme Court has cited federal precedents for the proposition that news gathering is not without First Amendment protections and that “without some protection for seeking out the news, freedom of the press could be eviscerated.” Sheridan Newspapers v. City of Sheridan, 660 P.2d 785, 794 (Wyo. 1983). The scope of that protection in regard to subpoenas of news organizations awaits further development.

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C. Federal constitutional provision

No reported state court decision has applied or rejected a reporter’s privilege based on the First Amendment to the U.S. Constitution. As mentioned above, a U.S. district court has applied the reporter’s privilege in ruling on a motion to quash a subpoena of a news photographer’s unpublished photographs in a civil case. The court denied the motion to quash pursuant to the test set forth by the Tenth Circuit Court of Appeals. Order on Appeal from Magistrate's Order, Wilson v. Amoco, Docket No. 96-CV-0124-B (D. Wyo. filed April 8, 1998) (citing Tate v. Akers, 565 F.2d 1166 (10th Cir. 1977)).

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D. Other sources

There are no other sources of a reporter’s privilege in Wyoming, such as court rules, state bar guidelines or administrative procedures.

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III. Scope of protection

A. Generally

Obviously, the lack of a reported decision finding a reporter’s privilege under state law does not place Wyoming in an enviable position in comparison to other states.

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B. Absolute or qualified privilege

Wyoming has no state shield law or reported case decisions establishing a reporter’s privilege under the state constitution or statutory law. Under federal law, as established by the Tenth Circuit, a news person has a qualified privilege for confidential information in a civil case. Silkwood v. Kerr-McGee Corp., 563 F.2d 433 (10th Cir. 1997). The privilege in regard to non-confidential information in a civil case is unclear.

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C. Type of case

1. Civil

Wyoming has no statutory or reported case law in this area. A reporter has a qualified privilege for confidential information in a civil case under Tenth Circuit Court of Appeals precedent. The privilege in regard to non-confidential information is unclear.

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2. Criminal

Wyoming has no statutory or reported case law in this area. The Tenth Circuit has not recognized a privilege in regard to information sought in a criminal case.

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3. Grand jury

Wyoming has no statutory or reported court decisions involving reporter’s privilege in regard to grand jury testimony.

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D. Information and/or identity of source

Wyoming has no statutory or reported case law in this area.

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E. Confidential and/or nonconfidential information

Wyoming has no statutory or reported case law in this area.

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F. Published and/or non-published material

Wyoming has no statutory or reported case law in this area.

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G. Reporter's personal observations

Wyoming has no statutory or reported case law in this area.

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H. Media as a party

Wyoming has no statutory or reported case law regarding a reporter’s privilege in this area.

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I. Defamation actions

Wyoming has no statutory or reported case law regarding a reporter’s privilege in this area.

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IV. Who is covered

Wyoming does not have a shield law or any reported case law discussing who is covered by a First Amendment privilege against disclosure of certain information. The Tenth Circuit Court of Appeals ruled that the balancing test outlined in Silkwood v. Kerr-McGee should have been applied to a plaintiff, who was not a journalist, who claimed that forced production of certain membership, mailing and attendance lists requested in discovery would violate his First Amendment right of freedom of association. Grandbouche v. Clancy, 825 F. 2d 1463 (10th Cir. 1987).

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A. Statutory and case law definitions

Not applicable.

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1. Traditional news gatherers

Not applicable.

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a. Reporter

Not applicable.

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b. Editor

Not applicable.

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c. News

Not applicable.

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d. Photo journalist

Not applicable.

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e. News organization/medium

Not applicable.

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2. Others, including non-traditional news gatherers

Not applicable.

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B. Whose privilege is it?

Not applicable.

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V. Procedures for issuing and contesting subpoenas

A. What subpoena server must do

1. Service of subpoena, time

Wyoming law requires that the subpoena be issued in time to allow the person reasonable time to comply. The courts have found that service less than five days before the person is required to appear is unreasonable. What is reasonable, of course, will depend on the circumstances. Wyoming has no special provisions regarding service of subpoenas on the media.

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2. Deposit of security

No deposit is required. However, the issuing party must tender the one-day witness fee and mileage along with the subpoena if a person is commanded to appear. This is often overlooked by issuing parties.

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3. Filing of affidavit

No affidavit is required under Wyoming law or court rules.

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4. Judicial approval

No judicial approval is necessary.

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5. Service of police or other administrative subpoenas

No special rules exist regarding the use or service of administrative subpoenas.

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B. How to Quash

1. Contact other party first

Wyoming does not require that a person served with a subpoena contact the issuing party before filing a motion to quash.

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2. Filing an objection or a notice of intent

No notice of intent to quash is required. However, Rule 45 of the Wyoming Rules of Civil Procedure provides an alternate method of challenging a subpoena. A party upon which a subpoena is served seeking the inspection or copying of materials may serve upon the issuing party or his/her attorney an objection to the subpoena. This relieves the subpoenaed party of the obligation to respond to the subpoena. The issuing party may move at any time for an order to compel. The objection must be filed within 14 days of the service of the subpoena or before the time specified for compliance if it is less than 14 days.

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3. File a motion to quash

a. Which court?

A motion to quash should be filed in the court that issued the subpoena.

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b. Motion to compel

A person who receives a subpoena must comply or file a motion to quash unless the person files an objection as allowed under the rules for subpoenas that seek the inspection or copying of documents.

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c. Timing

A motion to quash must be timely. In other words, it must be before the time specified for compliance. Wyoming courts pride themselves in moving their cases along promptly. If the judges perceive that a subpoenaed party has filed a motion just before the time specified for compliance without good reason, the judge is likely to be less receptive to quashing the subpoena. Filing the motion to quash as soon as practical is the best approach.

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d. Language

There is no stock language that should be included in the motion to quash. However, the movant ought to cite to the specific provision in Rule 45 of the Wyoming Rules of Civil Procedure upon which the motion to quash is based, such as privilege or an undue burden.

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e. Additional material

Affidavits or other materials that help the judge to understand the potential for a “chilling effect” that the subpoenas on the news media will have on the free flow of information to the public should be attached to the motion to compel. As subpoenas have been infrequently issued in Wyoming, judges may focus on the specific case at hand and not examine the larger picture. A federal district court in Wyoming in applying the balancing test in determining whether to quash a subpoena for a photographer’s unpublished photographs found “no credible argument that any pernicious effects would result from production of these photographs.” Order on Appeal from Magistrate's Order, Wilson v. Amoco, Docket No. 96-CV-0124-B (D. Wyo. filed April 8, 1998). The court found that it was hard-pressed to articulate any burden on the press other than the administrative one of actually copying and providing the photographs. Id. Courts must be educated regarding the adverse effect on the news media when the government or private parties use reporters as their investigators. That education must start with the motion to quash.

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4. In camera review

a. Necessity

The Wyoming Supreme Court has required in camera review of materials sought by a subpoena when the balancing of interests must be undertaken by the court. Hartston v. Campbell County Memorial Hospital, 913 P.2d 870 (1996). There are no reported cases involving in camera inspection of materials sought from reporters, but the general requirement of such an inspection would logically apply in such cases.

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A stay pending appeal of the denial of a motion to quash after the materials have been reviewed is not automatic. Though there are no reported cases involving media subpoenas in Wyoming, the courts have issued stays in analogous cases where an appeal has been undertaken of an order requiring the disclosure of information claimed to be privileged or confidential.

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c. Consequences of refusing

There are no reported cases in Wyoming in which the subpoenaed party has refused to turn materials over for an in camera inspection. However, the refusing party would likely be held to be in contempt of court or face the prospect of having its motion to quash denied.

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5. Briefing schedule

The briefing schedule for a motion to quash is the same as for other motions in Wyoming. Opposing parties have 20 days to respond to the motion. The moving party then has 15 days to file a reply. A request can be made for a different briefing schedule to be set by the court.

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6. Amicus briefs

Courts in Wyoming do accept amicus briefs. However, we have no known history regarding amicus briefs opposing the subpoenaing reporters.

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VI. Substantive law on contesting subpoenas

Wyoming has no substantive state law on contesting subpoenas served upon reporters. Guidance may be found by examining the substantive law in the Tenth Circuit Court of Appeals in this area.

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A. Burden, standard of proof

Not applicable.

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B. Elements

1. Relevance of material to case at bar

Not applicable.

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2. Material unavailable from other sources

a. How exhaustive must search be?

Not applicable.

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

Not applicable.

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c. Source is an eyewitness to a crime

Not applicable.

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3. Balancing of interests

Not applicable.

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4. Subpoena not overbroad or unduly burdensome

Not applicable.

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5. Threat to human life

Not applicable.

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6. Material is not cumulative

Not applicable.

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7. Civil/criminal rules of procedure

Not applicable.

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8. Other elements

Not applicable.

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C. Waiver or limits to testimony

1. Is the privilege waivable?

Not applicable.

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2. Elements of waiver

a. Disclosure of confidential source's name

Not applicable.

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b. Disclosure of non-confidential source's name

Not applicable.

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c. Partial disclosure of information

Not applicable.

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d. Other elements

Not applicable.

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3. Agreement to partially testify act as waiver?

Not applicable.

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VII. What constitutes compliance?

A. Newspaper articles

Newspaper articles are generally not self-authenticating, depending upon the purpose for which they are offered. Reporters have been asked to submit affidavits or testify in court regarding the accuracy of the information in the articles.

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B. Broadcast materials

Of the two or three incidents of which we are aware where broadcast materials were subpoenaed, reporters were asked to testify that they made the recordings of a particular person on a particular date.

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C. Testimony vs. affidavits

Affidavits have been accepted in the place of in-court testimony in cases where the parties have so stipulated.

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D. Non-compliance remedies

1. Civil contempt

a. Fines

There are no known cases in Wyoming where a reporter has been fined for failing to comply with a subpoena.

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b. Jail

There are no known cases in Wyoming where reporters went to jail rather than disclose the names of confidential sources or information.

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2. Criminal contempt

There are no known cases where a reporter has been charged with criminal contempt in Wyoming.

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3. Other remedies

There are no known cases where other remedies, such as default judgments, have been assessed against reporters for failure to comply with a subpoena.

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VIII. Appealing

A. Timing

1. Interlocutory appeals

Though there is no Wyoming case law directly point, a good argument could be made that an interlocutory appeal of the denial of a motion to quash a subpoena to a third party, such as a reporter, should be allowed. The denial would be a final judgment as to the issue of whether the material should be disclosed. Denying the right of appeal would leave the third party without recourse, as an appeal after final resolution of the underlying case would only result in shutting the proverbial barn door after the horse has left.

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2. Expedited appeals

There is no right to an expedited appeal of the denial of motion to quash.

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B. Procedure

1. To whom is the appeal made?

Appeals of denials of motions to quash by municipal or county courts may be appealed to the state district court. Such denials by district courts are appealed to the Wyoming Supreme Court.

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2. Stays pending appeal

Parties must seek stays from the court that issued the order.

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3. Nature of appeal

There are no cases which indicate that the nature of an appeal of a denial of a motion to quash a subpoena served upon the media would be any different than any other appeal.

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4. Standard of review

In Wyoming, discovery rulings of the trial court are reviewed under an abuse of discretion standard. However, in cases involving the subpoena of a reporter as a third party, an argument could be made that ruling on whether privilege exists is a matter of law and should be reviewed de novo, and that the district court should be given no deference as a fundamental right -- freedom of the press -- is at issue. Again, there are no cases on point in Wyoming.

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5. Addressing mootness questions

Courts in Wyoming have not addressed whether an appeal can be undertaken after the material at issue has been disclosed. However, the Wyoming Supreme Court has adopted two exceptions to the mootness doctrine. They are that the issue at hand 1) “is capable of repetition but evading review,” or 2) is of “great public importance.” Either exception could be used to justify an appeal after the reporter's materials have already been disclosed in the trial court.

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6. Relief

The appellate court could order a contempt citation reversed as well as ordering the lower court to either reconsider or reverse its decision denying the motion to quash.

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IX. Other issues

A. Newsroom searches

There have been no known searches of newsrooms in Wyoming related to newsgathering. Wyoming has no provisions similar to those in the federal Privacy Protection Act.

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B. Separation orders

There are no reported cases in Wyoming dealing with the sequestering of reporters who have been subpoenaed to testify in a trial. Reporters should first attempt to seek a narrowing of any sequestering during a trial they are assigned to cover as a condition to their testimony. If such negotiations fail, the reporter should seek such an order from the court.

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C. Third-party subpoenas

There are no reported cases in Wyoming of information being sought from third parties, such as telephone companies, regarding newsgathering efforts by the media.

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D. The source's rights and interests

There are no reported cases in Wyoming of sources being allowed to intervene anonymously to halt disclosure of their identities. The use of anonymous sources by the media is rare in Wyoming.

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