In civil actions, the party seeking to compel disclosure must show a particularly strong need for the privileged information (both relevancy and that the material "goes to the heart of the matter") and an inability to obtain the information from another source (a requirement on the party seeking the information to first exhaust those alternative sources). See Silkwood v. Kerr-McGee Corp., 563 F.2d 433, 438 (10th Cir. 1977); see also Wood v. Farmingham City, No. 2:10-cv-933-DB-PMW, 2011 U.S. Dist. LEXIS 133940, *8 (D. Utah Nov. 21, 2011) (stating “there is a heightened requirement of demonstrating need for the information in a civil case, as opposed to a criminal case, because a criminal defendant’s constitutional rights are not implicated in a civil case” (citing as an example, Altemose Constr. Co. v. Bldg. & Constr. Trades Council of Phila., 443 F. Supp. 489, 491 (E.D. Pa. 1977))). The court then must balance those consequences of granting disclosure against the qualified First Amendment privilege. See Silkwood, 563 F.2d at 438.
In Silkwood v. Kerr-McGee Corp., 563 F.2d 433 (10th Cir. 1977), a documentary film maker investigating the death of Karen Silkwood was subpoenaed to give a deposition in a civil rights suit brought by Silkwood's estate against Silkwood's former employer. During pretrial proceedings the district court denied the non-party, film maker's motion for a protective order. At the deposition, the film maker refused to disclose information he felt was confidential. The Silkwood Court found that the documentary film maker could claim the reporter's privilege and seek protective relief, even though he was not a salaried newspaper reporter. The court remanded the case to the district court to determine whether the privilege shielded disclosure, by applying a four factor balancing test: 1) whether the party seeking information has independently attempted to obtain the information elsewhere and has been unsuccessful; 2) whether the information goes to the heart of the matter; 3) whether the information is relevant; 4) the type of controversy. Id. at 438; see also Grandbouche v. Clancy, 825 F.2d 1463, 1466 (10th Cir. 1987) (discussing the four-factor balancing test in the context of a First Amendment right of assembly privilege to not disclose information).
The United States District Court for the District of Colorado applied Silkwood's four-factor test in Re/Max Int'l Inc. v. Century 21 Real Estate Corp., 846 F. Supp. 910 (D. Colo. 1994). Century 21 brought a variety of claims, including unfair competition, based upon Re/Max's nationwide advertising campaign. A local newspaper published an article discussing Re/Max's challenge to Century 21 to determine who was the best real estate company. Century 21 subpoenaed the reporter merely to authenticate statements appearing in the article. The Court quashed the subpoena because Century 21 failed to show the information sought was substantially relevant to a central issue in the case, and that the information could not be obtained from other reasonable sources. The evidence sought from the reporter -- to confirm that published statements had been uttered by a previous witness in the case, to impeach his deposition testimony -- was deemed not centrally relevant and was also cumulative of other evidence in the record.
In contrast, in an unpublished decision of the United States District Court for the District of Kansas, the court held that, on balance, the Silkwood factors supported testimony by a nonparty reporter to confirm the validity and authentication of published statements. Thomas v. City of Wichita, No. 13-1040-CM, 2014 U.S. Dist. LEXIS 122476 (D. Kan. Sept. 3, 2014). In Thomas, the plaintiff alleged he was unlawfully arrested after attempting to warn firemen of various gas and electrical lines during a fire at an industrial complex at which the plaintiff leased commercial space. The firemen justified the arrest arguing the plaintiff refused to stay back and ultimately assaulted an officer. A news article covering the fire and this altercation was subsequently published that contained a statement made by the plaintiff that supported defendants’ description of the events. While the parties stipulated to limit questioning to an affidavit provided by the reporter, the court discussed the merits of the motion and held that Silkwood supported disclosure because the reporter was the only person who could testify as to the validity of the published statement, and that the statement went to the heart of the plaintiff’s claims and the defendants’ defenses. The court also noted that while the Kansas statutory journalist privilege extended protection to such non-confidential information, the Tenth Circuit has yet to rule on whether the federal privilege is equally broad.
The Tenth Circuit affirmed the United States District Court for the District of Colorado's ruling granting the reporters' motion to quash subpoena in Donohue v. Hoey, 109 Fed. Appx. 340 (10th Cir. 2004). Applying Silkwood, the "the district court made the express 'finding and conclusion that the plaintiffs have failed to make the showing necessary to overcome the privilege relied on by the motions.'" Id. at 354 (citing Mar. 19, 2002, Order). The Tenth Circuit affirmed the district court's order, finding that the plaintiffs failed to "explain how the district court's application of Silkwood was an abuse of discretion". Id.
In the unpublished decision of Johnson v. Sch. Dist. No. 1, the United States District Court for the District of Colorado applied Silkwood and found that while the information sought from the nonparty reporter was relevant to a central issue in the case, the plaintiff failed to demonstrate that the information could not be obtained from other available sources. No. 12-cv-02950-MSK-MEH, 2014 U.S. Dist. LEXIS 23620 (D. Colo. Feb. 25, 2014). In Johnson, the plaintiff school teacher alleged adverse employment actions by the school district and its board of education after the plaintiff testified before the Colorado legislature opposing legislation the defendants supported. The local newspaper published a column containing statements that, according to the plaintiff, were not only factually inaccurate, but provided to the reporter by the defendants’ employees in retaliation for her exercise of her First Amendment rights. The plaintiff sought the identities of the reporter’s sources to prove the defendants’ motivations and show a pattern of retaliatory behavior. The court determined that, with the exception of one of the published statements, the information in the column reflected the reporter’s opinion derived from legally obtained records, interviews with other individuals, and being present at the plaintiff’s testimony before the legislature. With regard to one particular statement, the court determined that the source’s identity was central to the plaintiff’s claims and described the reporter as a “first hand witness.” However, because the plaintiff failed to demonstrate that she exhausted other sources to obtain this information, the court granted the reporter’s motion to quash.
The Eleventh Circuit recognizes a qualified privilege for journalists which allows them to resist compelled disclosure of their professional news gathering efforts in both criminal and civil proceedings. Price v. Time, Inc., 416 F.3d 1327 (11th Cir. 2005) (applying privilege and finding that plaintiff had failed to exhaust alternative sources for information sought); Miller I, 621 F.2d 727 (recognizing the reporter's privilege in a defamation case). (Fifth Circuit decisions prior to October 1, 1981 are binding precedent unless overruled en banc. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc).)
When determining whether a reporter’s privilege is available, the courts in civil cases employ a balancing test weighing the effects of disclosure on First Amendment interests and the free flow of information against the interest of the party seeking disclosure of the reporter’s information or source. In balancing the interests asserted, courts have looked to whether the information sought is available from other sources. Where there has been no expectation of confidentiality as to the information or source, the courts have found the First Amendment interests to be less weighty. The party seeking disclosure from the reporter must establish the relevance of the information sought and make a prima facie case showing that the claim is not frivolous and that the party is not merely on a “fishing expedition.” The burden then shifts to the reporter to establish the need to preserve the privilege. See generally In re Special Proceedings, 373 F.3d 37 (1st Cir. 2004); Cusumano v. Microsoft Corp., 162 F.3d 708 (1st Cir. 1998); Bruno & Stillman v. Globe Newspaper Co., 633 F.2d 583 (1st Cir. 1980). See also Alharbi v. TheBlaze, Inc., 199 F. Supp. 3d 334, 348 (D. Mass. 2016).
The application of the privilege does not differ significantly if the reporter is subpoenaed in a civil case, as opposed to a criminal case. See United States v. Burke, 700 F.2d 70, 77 (2d Cir. 1983) ("We see no legally-principled reason for drawing a distinction between civil and criminal cases when considering whether the reporter's interest in confidentiality should yield to the moving party's need for probative evidence."). The test does differ depending on whether the materials withheld are confidential or non-confidential.
In cases involving confidential materials, the three-part test outlined in In re Petroleum Products Antitrust Litig., 680 F.2d 5, 7-8 (2d Cir. 1982), controls. The In re Petroleum test requires the subpoenaing party to make "a clear and specific showing that the information is:  highly material and relevant,  necessary or critical to the maintenance of the claim, and  not obtainable from other available sources." Id.; see also Burke, 700 F.2d at 77; Baker v. F & F Inv., 470 F.2d 778, 783-85 (2d Cir. 1972).
When the information sought is non-confidential, the test set forth in Gonzales v. National Broadcasting Co. governs. 194 F.3d 29 (2d Cir. 1999). In Gonzales, plaintiffs and defendants in a civil rights litigation subpoenaed non-party NBC to disclose non-confidential video outtakes of allegedly improper traffic stops by the defendant, a Louisiana sheriff. The court held that non-confidential material receives a qualified privilege that is less protective than that for confidential materials: the subpoenaing party must demonstrate that the non-confidential information is: " of likely relevance to a significant issue in the case; and [2 is] not reasonably obtainable from other available sources." Id.
In the context of witness testimony, the application of privilege applies to direct examination questions not implicating the privilege that require implications or open the door to questions on cross that would implicate the privilege. In Baker v. Goldman Sachs & Co., appellants sought testimony from a reporter which they stated they would limit to whether his published report (i.e., that information not implicated by the New York Shield Law at issue in the case) was “accurately reported.” 669 F.3d 105 (2d Cir. 2012). But the court held that such a question would provide a basis for matters such as the reporter’s newsgathering methods and his personal knowledge of the matters he reported. As such, the privilege prevented both the original question and “the cross-examination that would inevitably follow.” Baker v. Goldman Sachs & Co., 669 F.3d 105 (2d Cir. 2012).
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 v. Borough of Dunmore, 2011 WL 2115841, at *4 (M.D. Pa. May 27, 2011) (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”), aff’d 516 F. App’x 194 (3d Cir. 2013).
Most of the reporter’s privilege cases in the Fourth Circuit have arisen in the civil context. The Fourth Circuit first discussed a testimonial privilege in United States v. Steelhammer, in which reporters for the Charleston Gazette were summoned to testify in a civil contempt hearing. 539 F.2d 273 (4th Cir. 1976), rev’d en banc, 561 F.2d 539 (4th Cir. 1977). The Fourth Circuit introduced its balancing test for confidential information in the context of a civil defamation case. LaRouche, 780 F.2d at 1135. In Church of Scientology, also a civil defamation case but with the media as a third party, the Fourth Circuit indicated its intention to apply its LaRouche test to nonconfidential information as well. Church of Scientology, 992 F.2d at 1335. More recently, the Fourth Circuit in Ashcraft v. Conoco, Inc., an environmental torts suit, reinforced the application of a reporter’s privilege for confidential news sources or information. 218 F.3d 282, 28 Media L. Rep. 2103 (4th Cir. 2000); see also Horne v. WTVR, LLC, 893 F.3d 201 (4th Cir. 2018) (upholding application of reporter’s privilege to protect confidential source in public figure defamation case).
At the district court level, the most protective opinions have come in civil cases. In Bischoff v. United States, 25 Media L. Rep. 1286 (E.D. Va. 1996), a reporter for the Houston Post was subpoenaed to testify in a suit brought by the two plaintiffs against the United States, alleging that FBI and IRS employees unlawfully published their confidential tax information. The reporter moved to quash the subpoena, arguing that his only relevant information was obtained from a confidential source, and the district court granted the motion, holding that a qualified privilege exists in a civil action even where a reporter is believed to have first-hand evidence of criminal conduct. Id. at 1287-88. In Penland, former prison employees brought a civil rights and defamation suit against a sheriff and subpoenaed from a local newspaper and television station both confidential and nonconfidential information surrounding their interviews with the sheriff. Penland, 922 F. Supp. at 1082. The district court granted the motion to quash and issued a protective order, applying the LaRouche test and holding the privilege outweighed the need for the information. Id. at 1084. In Stickels v. Gen. Rental Co., 750 F. Supp. 729, 18 Media L. Rep. 1644 (E.D. Va. 1990), a local newspaper reporter challenged a tort defendant’s subpoena of photos and negatives of the accident at issue. Though the court ultimately denied the motion to quash the subpoena, it applied the LaRouche test to nonconfidential information. Finally, in Livingston v. Kehagias, No. 5:16-CV-906-BO, 2018 WL 1278190, at *2-3 (E.D.N.C. March 12, 2018), the court found that each element of the LaRouche test counseled in favor of quashing the subpoena served on a local newspaper in Charlotte, North Carolina. The court stated that, “as an initial matter, this Court reaffirms its commitment to a free and uninhibited press contributing to the robust and unfettered debate characteristic of our society. At the same time, this Court is aware that a generation of Supreme Court jurisprudence suggests that the First Amendment does not provide the press an absolute shield from legal process.” Id. at *2.
The Fifth Circuit has applied a three-part test to determine the scope of the privilege not to reveal the identity of a confidential source in civil suits for libel in which the media is a party: (1) is the information relevant; (2) can the information be obtained by alternative means; and (3) is there a compelling interest in the information? Miller v. Transamerican Press, Inc., 621 F.2d 721, 726 (citing Garland v. Torre, 259 F.2d 545 (2d Cir. 1958)), as modified, 628 F.2d 932 (5th Cir. 1980). On rehearing, the panel supplemented its opinion, clarifying what evidence the movant must show to overcome the privilege. Miller, 628 F.2d 932, 932 (5th Cir. 1980). Merely pleading a case of libel does not defeat the privilege; rather, the plaintiff must first show "substantial evidence that the challenged statement was published and is both factually untrue and defamatory; that reasonable efforts to discover the information from alternative sources have been made and that no other reasonable source is available; and that knowledge of the identity of the informant is necessary to proper preparation and presentation of the case." Miller, 628 F.2d at 932 (emphasis added); see In re Selcraig, 705 F.2d 789, 792 (5th Cir. 1983).
Moreover, the Fifth Circuit has adopted the qualified privilege in Miller in a non-libel, civil case in which the reporter was not a party. Rather, the challenged subpoena sought the identity of the reporter's confidential informant only because that information would help the plaintiff prove his case for punitive damages. In re Selcraig, 705 F.2d 789, 797-99 (5th Cir. 1983) (finding no necessity established because plaintiff had not proved by more than mere allegation a prima facie case for liability and the reporter's information was relevant only to damages). The Fifth Circuit has not explicitly held that the qualified privilege applies to all civil cases in all instances, however. For example, the Fifth Circuit has not addressed whether confidential information obtained from a confidential informant other than her identity would be covered by the privilege.
In civil cases involving the non-confidential work product of non-party reporters, district courts have recognized the application of the qualified privilege. Brinston v. Dunn, 919 F. Supp. 240, 244 (S.D. Miss. 1996); Holland v. Centennial Homes, Inc., 1993 WL 755590, at *6, 22 Media L. Rep. 2270 (N.D. Tex. 1993). However, the Fifth Circuit later questioned whether a qualified privilege protects the press where no confidential relationship exists between the reporter and the informant. See United States v. Smith, 135 F.3d 963, 972 (5th Cir. 1998) (citing Pressey v. Patterson, 898 F.2d 1018, 1022 n.4 (5th Cir. 1990) (stating in dicta that a confidential relationship may be a necessary condition for establishing a privilege)); see also De La Paz v. Henry's Diner, Inc., 946 F. Supp. 484, 485 (N.D. Tex. 1996) (declining to extend the privilege to non-confidential material in a civil matter); Cinel v. Connick, 792 F. Supp. 492, 498-500 (E.D. La. 1992) (in civil matter involving court order that required media to produce an inventory of materials in its possession for in camera review, there was no qualified privilege either under federal law or Louisiana shield statute, La. R.S. 45:1459).
In upholding a newspaper's refusal to comply with a civil administrative subpoena from a federal agency in the context of a labor dispute, the Sixth Circuit has recognized the right of the press to avoid compelled disclosure of commercial information received from a source to whom the newspaper promised anonymity. NLRB v. Midland Daily News, 151 F.3d 472 (6th Cir. 1998). Midland Daily News is the only 6th Circuit ruling in a civil context addressing a newspaper's constitutional right to resist complying with a subpoena.
In Midland Daily News, the Court affirmed a district court's refusal to enforce an NLRB subpoena for the identity of an advertiser who placed a "blind" employment ad. Because of the commercial context, the Sixth Circuit applied the standards of the First Amendment's commercial speech doctrine. The Court examined whether a substantial government interest supported enforcement of the NLRB subpoena, whether enforcement of the subpoena would directly advance the asserted government interest, and whether the subpoena was more extensive than necessary to achieve the government's asserted goal. The NLRB said that it wanted the information to determine the accuracy of a union's charges that the employer discriminated against union members. Ruling that the NLRB failed to demonstrate that its use of subpoena power was not more extensive than necessary to acquire the desired information, the Sixth Circuit observed: "if this court permitted the Board to obtain the identity of Midland's advertiser, without demonstrating a reasonable basis for seeking such information, the chilling effect on the ability of every newspaper and periodical to publish lawful advertisements would clearly violate the Constitution."
The logical conclusion of Midland Daily News is that a court would more strictly scrutinize a civil subpoena in a noncommercial context because regulation of noncommercial speech usually is subject to more demanding judicial scrutiny.
Where the press is subpoenaed in the context of criminal litigation or a grand jury investigation, there is doubt as to whether the Sixth Circuit recognizes any special prerogative of the press to resist the subpoena. In In re Grand Jury Proceedings, 810 F.2d 580 (6th Cir. 1987), the Sixth Circuit opined that the First Amendment provides the press with protection only from grand jury subpoenas issued in bad faith to harass the press or to disrupt its relationship with its sources, and upheld the use of a grand jury subpoena to obtain video outtakes recorded by a television journalist in a context in which the taped subjects expected anonymity.
However, the court's apparent negation of any greater First Amendment protection appears to have been nonbinding dicta because the court found that, even if strict First Amendment protection applied, its demands were satisfied given the evidence. See Southwell v. Southern Poverty Law Ctr, 949 F. Supp. 1303 (W.D. Mich. 1996) (Sixth Circuit's negation of First Amendment reporters' privilege was "dictum").
Addressing the test for strict First Amendment scrutiny, the Sixth Circuit ruled that the government had succeeded in making a "clear and convincing showing" that the journalist had "information that is clearly relevant to a specific violation of criminal law," and that "the information is not available from alternative sources." That test would be more demanding of the proponent of disclosure than is the commercial speech test of Midland Daily News.
The United States District Court for the Western District of Michigan has ruled that the First Amendment affords a reporters' privilege against forced disclosure of confidential sources in the context of civil litigation. Southwell v. Southern Poverty Law Ctr, 949 F. Supp. 1303 (W.D. Mich. 1996).
Three cases from Sixth Circuit district courts have decided in civil cases that there is no First Amendment privilege. Lentz v. City of Cleveland, 410 F. Supp. 2d 673 (N.D. Ohio 2006); In re Daimler Chrysler, 216 F.R.D. 395 (E.D. Mich. 2003); Hade v. City of Fremont, 233 F. Supp. 2d 884 (N.D. Ohio 2002).
The balancing test announced in McKevitt applies in civil cases. Beverly v. Watson, No. 14-cv-4970, 2016 U.S. Dist. LEXIS 87725, *18 (N.D. Ill. July 7, 2016); Taylor v. City of Chicago, No. 14-cv-737, 2015 U.S. Dist. LEXIS 146954, at *5-7 (N.D. Ill. Oct. 29, 2015); Davis v. City of Springfield, No. 04-3168, 2009 U.S. Dist. LEXIS 26806, at *10 (C.D. Ill. April 1, 2009); Mosely v. City of Chicago, 252 F.R.D. 421, 427 (N.D. Ill. 2008). Bond v. Utreras, No. 04 C 2617, 2006 WL 1806387 (N.D. Ill. June 27, 2006); Hare v. Zitek, No. 02 C 3973, 2006 WL 2088427 (N.D. Ill. July 24, 2006); Patterson v. Burge, No. 03 C 4433, 2005 WL 43240 (N.D. Ill. Jan. 6, 2005); Hobley v. Burge, 223 F.R.D. 499 (N.D. Ill. 2004); Solaia Technology, LLC v. Rockwell Automation, Inc., No. 03 C 6904, 2003 WL 22597611 (N.D. Ill. Nov. 10, 2003).
In the Ninth Circuit, non-grand jury cases, both civil and criminal, arguably are subject to the Branzburg balancing test. See Farr, 522 F.2d at 467-68. In the ordinary civil case, the “‘litigant’s interest in disclosure should yield to the journalist’s privilege.’” Shoen II, 48 F.3d at 416 (quoting Zerilli v. Smith, 656 F.2d 705, 712 (D.C. Cir. 1981)). But see United Liquor Co., v. Gard, 88 F.R.D. 123, 131-32 (D. Ariz. 1980) (holding that, though the action was civil in nature, the plaintiff’s claim that an IRS agent revealed information to a reporter in violation of federal laws could result in criminal liability for the IRS agent, increasing the need for disclosure, and outweighing the privilege because the privilege does not extend to information a source had no legal right to provide and the reporter had no legal right to publish).
In Shoen II, the Ninth Circuit explained that “a civil litigant is entitled to requested discovery notwithstanding a valid assertion of the journalist’s privilege by a nonparty only upon a showing that the requested material is: (1) unavailable despite exhaustion of all reasonable alternative sources; (2) noncumulative; and (3) clearly relevant to an important issue in the case.” 48 F.3d at 416.
There is no statutory or reported case law in Alabama that addresses the issue of whether the reporter's privilege is applied differently in civil cases than in criminal cases, but a federal court sitting in the state has cited the principal that, in civil cases, the public interest in nondisclosure of journalists' news sources will often be weightier than the private interest in compelled disclosure. Pinkard v. Johnson, 118 F.R.D. 517 (M.D. Ala. 1987).
Alaska appellate courts have not had occasion to squarely address the existence or scope of a reporter's privilege, but anecdotal experience in the trial courts to date has not demonstrated that the reporter's privilege will differ if the reporter is subpoenaed in a civil case, as opposed to a criminal case. Courts still look at whether the information sought is crucial to the subpoenaing party's case, and whether alternate means of obtaining the information sought have been exhausted.
On its face, the Arizona Shield Law makes no distinction between civil and criminal proceedings. Rather, the statute applies "in a legal proceeding or trial or any proceeding whatever, or before any jury, inquisitorial body or commission, or before a committee of the legislature, or elsewhere . . . ." A.R.S. § 12-2237. See also Cooper Tire, 218 Ariz. at 62, 178 P.3d at 1186 (“If confidential source information cannot be disclosed in grand jury proceedings, then it surely cannot be shared with opposing counsel in a civil suit under an attorney's-eyes only order.”).
In Saxton, supra, the Arkansas Supreme Court interpreted the phrase "or to any other authority" to make the statute equally applicable to reporters subpoenaed in civil cases. Although the Eighth Circuit has not decided whether the qualified privilege extends to civil cases, the federal district court in Arkansas has provided guidance. U.S. District Judge William R. Wilson, Jr., adopted, with a minor change, the proposed findings and recommended disposition by U.S. Magistrate Judge John F. Forster, Jr., holding that the qualified reporter's privilege extended to civil cases. See Richardson v. Sugg, 220 F.R.D. 343 (E.D. Ark. 2004); see also Philip S. Anderson, The Reporter's Privilege in Arkansas: An Overview With Commentary, 29 U. Ark. Little Rock L. Rev. 1 (2006); but see Susan Webber Wright, A Trial Judge's Ruminations on the Reporter's Privilege, 29 U. Ark. Little Rock L. Rev. 103, 115 (2006) (questioning the wisdom of applying a constitutionally based, qualified privilege with uncertain boundaries).
In civil cases in which the reporter is not a party, the privilege is essentially absolute. As the California Supreme Court held in New York Times Co. v. Superior Court, California’s shield law provides “absolute protection to nonparty journalists in civil litigation from being compelled to disclose unpublished information.” 51 Cal. 3d 453, 457, 796 P.2d 811, 273 Cal. Rptr. 98 (1990); see also Mitchell v. Superior Court, 37 Cal. 3d 268, 274, 690 P.2d 625, 208 Cal. Rptr. 152 (1984) (“Since contempt is generally the only effective remedy against a non-party witness, the California enactments grant such witnesses virtually absolute protection.”); In re Willon, 47 Cal. App. 4th 1080, 1091, 55 Cal. Rptr. 2d 245 (1996) (affirming the absolute nature of the protection in civil cases). The reporter’s privilege technically is not a “privilege” because it only protects from contempt, meaning that other civil remedies may be available; however, the state Supreme Court has recognized that those remedies are ineffective and essentially useless for compelling compliance with a subpoena. See New York Times, 51 Cal. 3d at 463-64 (California Code of Civil Procedure § 1992, which provides civil remedy for disobeying a subpoena, is “not effective as a practical matter” because remedy provided is minimal).
If the reporter is a party, however, California’s statutory and state constitutional provisions provide no real protection because contempt is not the only remedy available to force disclosure. As the California Supreme Court explained: A party to civil litigation who disobeys an order to disclose evidence  may be subject to a variety of other sanctions, including the entry of judgment against him . . . . Neither Evidence Code section 1070 nor article I, section 2, subdivision (b), protects a party against such sanctions.” Mitchell, 37 Cal. 3d at 274 (citations omitted).
The privilege was intended to apply to all civil judicial proceedings, including civil discovery procedures, hearings or trials. C.R.S. § 13-90-119(1)(e); see also, e.g., Quigley v. Rosenthal, 43 F. Supp. 2d 1163 (D. Colo. 1999) (Colorado Shield Law privilege may be asserted by Jewish rights organization that publishes periodicals, books and pamphlets); Brokers’ Choice of Am., Inc. v. NBC Universal, Inc., 757 F.3d at 1143 (privilege applicable but not allowed when plaintiff would be greatly prejudiced in its ability to prove the defamation claim); Gordon v. Boyles, supra.
Administrative Proceedings. During the same legislative session in which it adopted the Shield Law, the Colorado General Assembly also adopted a law addressing testimonial privileges for the media in administrative proceedings. See, C.R.S. 24-72.5-101, et seq., discussed in Section II D, supra. There is no case law that has interpreted C.R.S. 24-72.5-101, et seq. Although it is numbered differently, the language in the statute essentially mirrors the language in the Shield Law. Compare, C.R.S. 13-90-119 to C.R.S. 24-72.5-101, et seq. Other than the numbering, the only substantive differences between the statutes is the addition in C.R.S. 24-72.5-101, of a preamble, and the addition of a definition of a "government entity" in C.R.S. 24-72.5-102(1). Because of their similarities, the courts are likely to apply the statutes similarly.
The proof required to overcome the privilege is equally strict for both civil and criminal cases, but the standard is described differently. In a civil case, in addition to the other prerequisites to overcoming the privilege, a party seeking to compel disclosure of protected information or source identities must show that "there are reasonable grounds to sustain a cause of action," and that the information or source identity is "critical or necessary . . . to the maintenance of a party's claim, defense or proof of an issue material thereto." In a criminal case, the party seeking disclosure must show that "there are reasonable grounds to believe that a crime has occurred" and that "the information or the identity of the source of such information is critical or necessary to the investigation or prosecution of a crime or to a defense thereto." Conn. Gen. Stat. §52-146t (d)(1)-(2).
Prior to the enactment of the statute, no state court case discussed any difference based on whether the case was civil or criminal, but Seahawk, supra, at 271, implied an easier standard for requiring disclosure in criminal cases. The Shield Law, however, makes no such distinction.
The reporter’s privilege is at its strongest in the context of civil litigation. The D.C. Circuit has explained that in “the ordinary case,” the privilege should prevail over civil litigants’ interests:
Although [Branzburg v. Hayes, 408 U.S. 665 (1972)] may limit the scope of the reporter’s First Amendment privilege in criminal proceedings, this circuit has previously held that in civil cases, where the public interest in effective criminal law enforcement is absent, that case is not controlling . . . . In general, when striking the balance between the civil litigant’s interest in compelled disclosure and the public interest in protecting a newspaper’s confidential sources, we will be mindful of the preferred position of the First Amendment and the importance of a vigorous press. . . . Thus, in the ordinary case, the civil litigant’s interest in disclosure should yield to the journalist’s privilege.
Zerilli v. Smith, 656 F.2d 705, 711-12 (D.C. Cir. 1981); see also Lee v. Dep’t of Justice, 413 F.3d 53 (D.C. Cir. 2005) (reaffirming privilege in civil cases); Goldberg v. Amgen, Inc., 123 F. Supp. 3d 9, 15 (D.D.C. 2015); CFTC v. McGraw-Hill Cos., Inc., 390 F. Supp. 2d 27 (D.D.C. 2005) (“in civil cases, the privilege typically prevails because any interest in overcoming the privilege is by definition a private rather than a public interest”); Mgmt. Info. Techs., Inc. v. Alyeska Pipeline Serv. Co., 151 F.R.D. 471 (D.D.C. 1993) (“[t]he D.C. Circuit has made it clear that in a civil case the reporter’s privilege is entitled to great weight”).
To the extent that the proceeding determines the rights of parties, the privilege applies. 10 Del. C. § 4320 (1).
Case law demonstrates Delaware's commitment to a strong but qualified privilege in civil claims. In Fuester v. Conrail, the Superior Court adapted the Third Circuit's test in Riley v. City of Chester, 612 F.2d 708, 716 (3d Cir. 1979), noting that the qualified privilege could only be overcome if the subpoenaing party proves three elements:
(1) that "an attempt was made to obtain the information from other sources";
(2) that "the only access to the information is through the journalists and the requested materials"; and
(3) that "the information is critical to the claim."
Fuester v. Conrail, 22 Media L. Rep. (BNA) 2376, 2378 (Del. Super. 1994) (adopting the Third Circuit's test announced in Riley v. City of Chester, 612 F.2d 708, 716 (3d Cir. 1979), following United States v. Criden, 633 F.3d 346 (3d Cir. 1980)).
The qualified reporter's privilege applies equally in civil and criminal proceedings. See Morris Communications Corp. v. Frangie, 720 So. 2d 230, 231-32 (Fla. 1998) (regarding application of privilege to disclosure of confidential and non-confidential information in civil proceedings).
Two of the reported Idaho decisions (Caldero and Sierra Life) involved civil cases. However, both were civil cases in which the reporter was a defendant. Both cases found that no reporter's privilege existed, but each decision also emphasized the fact that the discovery was directed at proof needed by the plaintiff in order to prosecute the plaintiff's case. And, at least in the case of Caldero, the precedential value is questionable, because of the disavowal of the Caldero decision in the Wright case.
Additionally, because of the repeated emphasis of the Idaho courts on a case-by-case balancing test, civil cases have the potential for coming out more favorably on balance because of the lesser “compelling and overriding interest” in the information ordinarily found in a civil case as compared to a criminal case, where a defendant's liberty interest is often at stake. The decision in Wright also made special mention of the fact that the balancing test might well be differently resolved in a civil setting, as opposed to a criminal case. Wright, 108 Idaho at 422, 700 P.2d at 44.
In civil cases, the reporter’s privilege extends to all underlying unpublished material gathered in preparation for a news story or broadcast regardless of whether the source of the material is confidential. Gulliver’s Periodicals. Ltd. v. Chas. Levy Cir. Co., 455 F. Supp. 1197 (N.D. Ill. 1978). See also Kelley v. Lempesis, No. 13-cv-4922, 2015 WL 4910952 (N.D. Ill. Aug. 17, 2015) (quashing subpoena for non-party broadcaster’s outtakes in civil case); Reitz v. Gordon, 26 Media L. Rep. 1447 (N.D. Ill. 1997) (quashing a subpoena to a non-party newspaper in a civil case); Dunn v. Hunt, 31 Media L. Rep. 2245 (Ill. Cir. Ct. 2003) (declining to compel production of subpoena for outtakes). Indeed, in criminal proceedings, Illinois courts have looked to precedent of civil cases when determining whether the elements needed to divest the privilege have been satisfied. See, e.g., In re Arya, 226 Ill. App. 3d 848, 549 N.E.2d 832 (1992).
Section 8-905 of the Statute provides that “all proceedings in connection with obtaining an adjudication upon the application not otherwise provided in Part 9 of Article VIII of this Act shall be as in other civil cases.” For example, the standard of proof used in proceedings pursuant to the Statute is a preponderance of evidence. This standard holds even if the underlying facts of the case involve a criminal investigation. See, e.g., In re Arya, 226 Ill. App. 3d at 862, 549 N.E.2d at 841.
Indiana’s shield law applies in “any legal proceedings or elsewhere.” Ind. Code § 34-46-4-2.
The Indiana Supreme Court has rejected the press’s argument that a separate newsgatherer’s privilege exists, under the free press provisions of the U.S. and state constitutions, for reporters subpoenaed in criminal matters. In re WTHR-TV (State v. Cline), 693 N.E.2d 1 (Ind. 1998). It is unclear, after In re WTHR-TV, whether a Court of Appeals opinion recognizing a qualified First Amendment privilege in civil cases is still valid. See In re Stearns (Vollmer v. Zulka), 489 N.E.2d 146 (Ind. App. 1986). If it is, such a privilege might cover those materials that are not protected under the shield law. To overcome the qualified privilege, the subpoenaing party in a civil case would need to prove: (1) the materials sought are material and relevant to the action, (2) they are critical to a fair determination of the cause, and (3) the subpoenaing party had exhausted all other sources for obtaining the same information. Id. at 151.
In civil cases, the reporter's privilege is a qualified privilege, which may be subordinated if the requesting party has a substantial need for the information and has exhausted other less intrusive means of attaining said information. Winegard, 258 N.W.2d at 850 (stating that privilege is qualified and not absolute); Lamberto, 326 N.W.2d at 308 (setting forth the test for rebuttal of the reporter's privilege presumption). The presumption of privilege is stronger in civil cases than criminal cases. Denk v. Iowa District Court, 20 Med. L. Rptr. 1454, 1455 (Iowa 1992) (three-justice panel held the burden to overcome reporter's privilege may be lower in criminal cases than in civil cases).
The Kansas shield law, K.S.A. 60-480, et seq., makes no distinction impacting the strength of the qualified privilege it provides based on the nature of the litigation or the forum in which it is contested. It simply states that subject to the qualifications articulated at K.S.A. 60-482, a journalist who is protected by the shield law “cannot be adjudged in contempt by a judicial, legislative, administrative body (sic) or any other body having the power to issue subpoenas.” K.S.A. 60-481.
In Pennington, decided prior to the enactment of the shield statutes, the Kansas Supreme Court suggested without analysis that the “news reporter’s privilege” based on the First Amendment that it had in mind “is more tenuous in a criminal proceeding than in a civil case.” In re Pennington, 224 Kan. 573, 581 P.2d 812, 815 (1978), cert. denied, 440 U.S. 929 (1979).
In non-diversity cases in federal court, in which the common law First Amendment-based privilege applies, the Tenth Circuit has said that the “type of controversy” is a factor to consider in determining whether the qualified privilege is available in a particular case, without further analysis. Silkwood v. Kerr-McGee Corp., 563 F.2d 433, 438 (10th Cir. 1977). In a subsequent decision, Judge Waxse, then a Magistrate Judge in the District of Kansas commented that:
Although Silkwood was decided in the context of civil litigation, the Court sees no legally-principled reason for drawing a distinction between civil and criminal cases when considering whether the reporter's interest in confidentiality should yield to the moving party's need for probative evidence. Indeed, the important social interests in the free flow of information that are protected by the reporter's qualified privilege are particularly compelling in criminal cases. Reporters are to be encouraged to investigate and expose, free from unnecessary government intrusion, evidence of criminal wrongdoing.
United States v. Foote, 00-CR-20091-01-KHV, 2002 WL 1822407 (D. Kan. August 8, 2002) (emphasis supplied). In other words, Judge Waxse reached the opposite conclusion to that noted in Pennington.
For federal civil cases, the reporter's privilege discussed in Miller applies. This privilege is not absolute and may be overcome if the party seeking disclosure proves that the information is relevant, is not available by alternative means, and that the party has a compelling interest in the information. Miller, 621 F.2d at 726; see also Selcraig, 705 F.2d at 792. The Fifth Circuit has not addressed whether reporters have a privilege not to reveal non-confidential unpublished information in civil proceedings. The Fifth Circuit has recognized that because of the public's lesser interest in the "outcome of civil litigation . . . the interests of the press may weigh far more heavily in favor of some sort of privilege" in a civil case. Smith, 135 F.3d at 972.
Under Louisiana state law, the provisions of the shield laws apply to any "administrative, judicial or legislative" proceeding in Louisiana, civil or criminal. La. R.S. 45:1452.
The shield law, 16 M.R.S.A. § 61, applies to civil actions and proceedings.
In a footnote to its criminal case In re Letellier, 578 A.2d 722, 17 Media L. Rep. 2169 (Me. 1990), the Maine Supreme Court noted that many cases recognizing a privilege "arose in civil actions where the balancing of interests is arguably different than in criminal actions," In re Letellier, 578 A.2d at 725 n.7, suggesting that the Court might be more inclined to quash a subpoena in a civil case than in an action involving a grand jury inquiry into criminal activity.
The Maine Supreme Judicial Court has not decided any civil cases where the reporter’s privilege was a central issue. However, a federal magistrate judge in the District of Maine, applying Maine law, addressed the required showing for civil parties to overcome a motion to quash prior to a deposition – the party seeking discovery must “‘show that it can establish jury issues on the essential elements of its case not the subject of the contested discovery’ before discovery may be compelled.” See Levesque v. Doocy, 247 F.R.D. 55, 57 (D. Me. 2007) (quoting Bruno & Stillman, Inc. v. Globe Newspaper Co., 633 F.2d 583, 597 (1st Cir. 1980)). Furthermore, the reasoning in In re Letellier relied heavily on a civil case heard by the First Circuit. See Letellier, 578 A.2d at 726 (deferring to the reasoning in Bruno & Stillman, Inc., 633 F.2d 583).
The protection of the privilege is not dependent on whether the reporter has been subpoenaed in a civil or criminal case. Either way, application of the privilege depends on a balancing of the interests. For civil cases in which the privilege has been discussed, see, e.g., Russo v. Geagan, 35 Fed. R. Serv. 2d 1403 (D. Mass. 1983) (discussing Massachusetts law); Sinnott v. Boston Retirement Bd., 524 N.E.2d 100 (1988); Wojcik v. Boston Herald, Inc., 803 N.E.2d 1261; Ayash v. Dana Farber Cancer Inst., 822 N.E.2d 667 (Mass. 2005).
In civil cases the Court usually evaluates the relative burden on the parties to produce information. Generally the Court will not subject a reporter to a fishing expedition i.e. broad discovery early in the litigation, but will require the reporter to produce information if the party issuing the subpoena has done substantially all of its discovery and the reporter appears to be the only witness.
This deference is based upon basic discovery etiquette rather than any special status of the media. In the case of Marketos v American Employers Insurance Company, 185 Mich App 179; 460 NW2d 272 (1990), the Michigan Courts required the newspaper to produce photographs, published and unpublished, of a suspicious fire to an insurance company. However, the case holding is limited because the newspaper had just ended its policy of selling photographs for $5.00. The Court obviously was influenced by this recent change in policy. The Court of Appeals quoted the following colloquy of the trial court and counsel:
The Court: The News has usually been pretty good about: you pay your dollar and they let you have copies. It used to be a friendly newspaper that tried to help out the rest of the community.
Counsel: Well, I think The News still thinks of itself as a friendly newspaper, Your Honor.
The Court: But they're refusing to let them have copies of a few photographs even if they pay them for it.
Despite the negative holding of the Court of Appeals in Marketos, Michigan courts have continued to provide protection to reporters and photographers. The Michigan legislature also has recognized a reporters' privilege to be free from subpoenas in the Grand Jury setting which is arguably an arena where the government's interest in reporter knowledge is high and in proceedings by prosecutors to obtain investigatory subpoenas before charges are issued.
On the face of the statute, the only civil actions in which a court could compel disclosure of confidential or unpublished information are defamation actions. Minn. Stat. §§ 595.024 (permitting compelled disclosure only where the specific information sought is clearly relevant to a felony, gross misdemeanor, or misdemeanor); 595.025 (permitting compelled disclosure in defamation actions). The defamation exception has been applied to compel disclosure in an action for deceptive trade practices and interference with prospective business advantage from a "media defendant in what is essentially a defamation case" where the requested information was relevant to whether the defendant knew that a broadcast was deceptive and yet chose to air it. Aequitron Medical, Inc. v. CBS Inc., 24 Media L. Rep. 1025, 1027 (S.D.N.Y. 1995).
In Johnson v. CBS Inc., the federal court compelled a television defendant to disclose notes, outtakes, and documents reviewed in the course of investigating and producing a televised report in a case alleging tortious interference with prospective contractual relations. No. CIV-3-95-624, 1996 WL 907735 (D. Minn. Sept. 14, 1996) (unpublished). (The Court later held that defamation standards would apply to plaintiff's claims, although plaintiff had not asserted a claim for defamation. Johnson v. CBS Inc., 10 F. Supp.2d 1071, 1073 (D. Minn. 1998).) This decision came after the Minnesota Supreme Court had held that the Minnesota statute did not protect unpublished but nonconfidential information, and before the 1998 legislation that restored protection for such information. The court noted that it might have reached a different conclusion if the plaintiff had been seeking confidential source information protected under the statute. 1996 WL 907735 at *2, n.2. Therefore, the 1998 legislation might produce a different result if the question arises in a later case. Indeed, later courts have refused to compel disclosure of unpublished information even in defamation cases, because the defamation exception on its face applies only when “the identity of the source will lead to relevant evidence on the issue of actual malice” and therefore does not require disclosure of unpublished information unrelated to the identity of a confidential source. Ducklow v. KSTP-TV, LLC, Nos. A13-1279, -1280, -1281, 42 Med. L. Rptr. 1431, 1434-35 (Minn. App. March 3, 2014) (unpublished); In re Mahtani, No. 27-CV-17-11589, 45 Med. L. Rptr. 2408, 2412-13 (Minn. Dist. Ct., Hennepin Cty., Sept. 25, 2017).
The fact that the reporter or the news organization is not a party to the particular defamation action does not in itself prevent compulsory disclosure of confidential or unpublished information, but it may weigh against such disclosure. See, e.g., Weinberger v. Maplewood Review, 648 N.W.2d 249, 258 (Minn. App. 2002) ("Compelling disclosure of confidential sources of statements in an article about a public official, for the purpose of making the reporter a witness against sources, has significant potential to interfere with a reporter's ability to gather news. Given the nature of this case, the fact that [the reporter] is not, by asserting the privilege, shielding himself from liability and the potential burden to the newsgathering process of using reporters to impeach or testify against their sources, we conclude that this factor weighs against disclosure."), rev'd, 668 N.W.2d 667 (Minn. 2003); Bauer v. Gannett Co., Inc. (KARE 11), 557 N.W.2d 608, 611 (Minn. Ct. App. 1997) ("When the reporter is a party to the litigation, the balance may tip more in favor of disclosure than when the reporter is not a party."), overruled to the extent inconsistent with Weinberger, 668 N.W.2d 667.
The trial court orders do not distinguish between civil cases and criminal cases regarding the qualified privilege, although most of these orders appear in civil matters. The only reported cases from the federal district courts of Mississippi were civil matters. Brinston v. Dunn, 919 F. Supp. 240 (S.D. Miss. 1996); McKee v. Starkville, 11 Med. L. Rptr. 2312, No. EC-82-36-NB-D, (N.D. Miss. Jan. 27, 1985).
The Court in CBS, Inc., v. Campbell, 645 S.W.2d 30, 33 (Mo. Ct. App. 1982), suggests that it believes disclosure in a civil trial could result in potential harm to a reporter in the performance of his or her duties. And in State of Mo. ex rel Classic III, Inc., v. Ely, 954 S.W.2d 650, 655 (Mo. Ct. App. 1997), Missouri adopted the four-part balancing test set out in many federal cases, focusing on the following four elements: 1) whether the movant has exhausted alternative sources of the information; 2) the importance of protecting confidentiality in the circumstances of the case; 3) whether the information sought is crucial to plaintiff's case; and 4) whether plaintiff has made a prima facie case of defamation. These facts are then balanced in determining whether to apply the privilege to the particular information or identity sought. But the court further noted that the four-part test will only apply if the journalist invokes a reporter's shield privilege based upon a promise of confidentiality to his or her source. The court in Classics III based its decision, in part, on the holding of the 8th Circuit Court of Appeals in Cervantes v. Time, 454 F.2d 986 (8th Cir. 1972). Classic III, Inc., 954 S.W.2d at 654.
The statute does not distinguish between civil and criminal proceedings; it applies by its terms to "any proceeding or investigation before or by any federal or state judicial, legislative, executive or administrative body." Neb. Rev. Stat. § 20-145(1). While the Nebraska Legislature cannot bind federal courts or agencies to its statutory procedures, a federal district judge in Nebraska has indicated he will consider the statute in ruling on subpoenas issued to reporters as a matter of comity.
The privilege is absolute in civil proceeding. The privilege cannot be pierced in defamation actions. Maressa v. New Jersey Monthly, 89 N.J. 176 (1982). The reporter may waive the privilege, but a partial waiver is not construed to be a total waiver and publication of the allegedly defamatory materials in a newspaper or news broadcast does not constitute a waiver. In re Schuman, 114 N.J. 14 (1989).
The absolute and qualified privileges provided by the Shield Law protect journalists in civil cases. See Flynn v. NYP Holdings, Inc., 235 A.D.2d 907, 652 N.Y.S.2d 833 (3d Dep't 1997). The party seeking disclosure from a reporter in a civil action where the reporter is not a party faces a heavy burden in attempting to overcome the privilege. However, where a reporter is a party to the action (almost invariably a defamation suit), while courts will not compel disclosure of confidential sources, they have sometimes precluded the reporter from relying on information validly withheld on the basis of the privilege in presenting his or her defense. See, e.g., Collins v. Troy Pub. Co. Inc., 213 A.D.2d 879, 623 N.Y.S.2d 663 (3d Dep’t 1995) (defendant newspaper that moved for summary judgment in libel action by public figure could not rely on its confidential sources to establish lack of actual malice.)
In addition, a finding of contempt (which is specifically precluded by the Shield Law) or preclusion of evidence are not the only remedies available to a trial court to punish a party for failure to disclose relevant information. For instance, a court may strike a recalcitrant party's pleadings. However, there is some authority for the proposition that to the extent that remedies, including striking of pleadings, undermine the purpose of the Shield Law and seek to coerce journalists to reveal privileged information, they should not be available. See, e.g., Oak Beach Inn Corp. v. Babylon Beacon, Inc., 62 N.Y.2d 158, 464 N.E.2d 967, 476 N.Y.S.2d 269 (1984) (trial court could not impose sanctions through the CPLR where it could not do so under the Shield Law, but the court could limit the defendants' use of the confidential information), cert denied, 469 U.S. 1158 (1985).
The language of the North Dakota shield law does not make a distinction between civil and criminal cases. Presumably, the same standard would apply to both types of cases. The North Dakota Supreme Court has not yet had the opportunity to rule on whether the nature of the action would alter the conditions of the privilege. In Grand Forks Herald v. Dist. Court in and for Grand Forks Cnty., 322 N.W.2d 850 (N.D. 1982), the North Dakota Supreme Court speculated that the type of case would be one of the factors considered in determining whether nondisclosure would result in a miscarriage of justice.
In a defamation action by a police chief against a mayor and city, a non-party reporter was found in contempt for refusing to reveal a non-confidential news source. The court of appeals affirmed, finding that the shield law only protected confidential sources. In addition, although the court recognized a qualified privilege under the state and federal constitutions for non-confidential sources, plaintiff had made a sufficient showing that the information sought was relevant, it could not be obtained from alternative sources, and there was a compelling interest in obtaining the information. Fawley v. Quirk, 9th Dist. Summit No. 11822, 1985 WL 11006, 11 Med.L.Rptr. 2336 (July 17, 1985).
At least one court has held that the shield law grants an absolute privilege in civil cases. In that case, a funeral home director sued a TV station and three of its employees for defamation. After a jury found in favor of the TV station, the plaintiff appealed and argued that the trial court should have compelled the media defendants to answer questions that would have revealed their source. The appellate court held that a reporter's privilege to protect the identity of confidential informants is absolute in civil litigation. House of Wheat v. Wright, 2d Dist. Montgomery No. 8614, 1985 WL 17381, at *8 (Oct. 10, 1985); see also Frey v. Multimedia, Inc., 42 F.3d 1388, 23 Med.L.Rptr. 1218, 1994 WL 677678, *3 (6th Cir. 1994) (affirming district court’s decision to allow media defendant in defamation lawsuit to submit documents for in camera review in redacted form in which identity of confidential source would be deleted).
Another court held that the privilege does not prevent a reporter from being deposed, but the reporter would be allowed to refuse to answer questions that would identify her sources. Forest Hills Utility Co. v. City of Heath, 37 Ohio Misc. 30, 302 N.E.2d 593 (Licking C.P. 1973).
A state university employee who was fired for revealing a student's grade point average to a newspaper subpoenaed the reporter to testify at her pre-termination hearing. The court held that the employee was not entitled to subpoena the reporter because the reporter did not have to reveal other sources under the state shield law. Swigart v. Kent State Univ., 11th Dist. Portage No. 2004-P-0037, 2005-Ohio-2258, 2005 WL 1077176.
Although on its face the privilege statute is applicable to all “state proceedings,” including any proceeding before “any judicial, legislative, executive or administrative body,” the privilege has most often been invoked in civil cases in which the journalist is not a party but is a prospective witness.
1. Shield Law
Pennsylvania’s Shield Law is applicable to civil cases. See, e.g., Castellani v. Scranton Times, L.P., 956 A.2d 937 (Pa. 2008).
2. First Amendment privilege
Although the First Amendment privilege is applicable in both criminal and civil cases, Pennsylvania courts are likely to follow Third Circuit decisions holding that the privilege is stronger in civil cases. As the Pennsylvania Supreme Court noted in the Bowden decision: “The Third Circuit has . . . stated that the privilege assumes greater importance in civil than in criminal cases, as in criminal cases the public need to vindicate crime, or the defendant’s constitutional right to a fair trial, can take precedence over a reporter’s need to maintain confidentiality.” Commonwealth v. Bowden, 838 A.2d 740, 754 (Pa. 2003). But, even in criminal cases, the privilege remains strong. See, e.g., United States v. Cuthbertson (Cuthbertson II), 651 F.2d 189 (3d Cir. 1981); In re Williams, 766 F. Supp. 358, 359 (W.D. Pa. 1991), aff’d, 963 F.2d 567 (3d Cir. 1992).
Rhode Island General Laws § 9-19.1-1 et seq., known as the Newsman's Privilege Act or the Rhode Island Shield Law, does not differentiate between subpoenas issued in civil or criminal cases. Rather, the privilege mandates that "no person" shall be required by "any court, grand jury, agency, department, or commission of the state" to disclose confidential information or to reveal confidential sources under most circumstances. R.I. Gen. Laws §§ 9-19.1-1 through 9-19.1-3.
The Texas Free Flow of Information Act has separate civil and criminal sections. The civil section, codified at Texas Civil Practices & Remedies Code §§22.021-22.027, applies to confidential and non-confidential sources, journalist’s work product and published and unpublished materials. In order to require a reporter to testify or produce materials, the party who issued the subpoena must show by clear and specific evidence the following:
(1) all reasonable efforts have been exhausted to obtain the information from alternative sources;
(2) the subpoena is not overbroad, unreasonable, or oppressive and, when appropriate, will be limited to the verification of published information and the surrounding circumstances relating to the accuracy of the published information;
(3) reasonable and timely notice was given of the demand for the information, document, or item;
(4) in this instance, the interest of the party subpoenaing the information outweighs the public interest in gathering and dissemination of news, including the concerns of the journalist;
(5) the subpoena or compulsory process is not being used to obtain peripheral, nonessential, or speculative information; and
(6) the information, document, or item is relevant and material to the proper administration of the official proceeding for which the testimony, production, or disclosure is sought and is essential to the maintenance of a claim or defense of the person seeking the testimony, production, or disclosure.
Tex. Civ. Prac. & Rem. Code §22.024.
Additionally, the shield law makes all broadcasts self-authenticating, so a reporter will not have to testify solely for the purpose of authenticating a broadcast tape. See Tex. Civ. Prac. & Rem. Code §22.027, and Tex. Code Crim. Proc. art. 38.111.
As an evidentiary rule, Rule 509 applies to both civil and criminal cases. See also Lester v. Draper, No. 000906048 (Utah 3d Dist. Ct. Jan. 16, 2002) (“The reporter's privilege applies in civil as well as criminal cases.”). Likewise, the factors previously defined by the U.S. Court of Appeals for the Tenth Circuit and employed by Utah trial courts to determine whether a reporter's privilege prevails over a subpoena do not differ in civil and criminal cases: “(1) whether the party seeking information has independently attempted to obtain the information elsewhere and has been unsuccessful, (2) whether the information goes to the heart of the matter, (3) whether the information is of certain relevance, [and] (4) the type of controversy.” Silkwood v. Kerr-McGee Corp., 563 F.2d 433, 438 (10th Cir. 1977); see also Utah R. Evid. 509 advisory committee note (2008) (indicating the courts should consider the Silkwood factors as well as factors that support the open and free flow of information). The fourth Silkwood factor distinguishes civil cases, where the privilege is stronger, from criminal cases, where the privilege is weaker. A state trial judge found that “the balancing of interests requires a stronger showing of need by a party seeking production of privileged newsgathering material in a civil case, as compared to a criminal case, because the constitutional rights of a criminal defendant are not implicated.” Lester v. Draper, No. 000906048 (Utah 3d Dist. Ct. Jan. 16, 2002).
The Vermont Shield Law provides an absolute privilege for confidential information and a qualified privilege for non-confidential information. It does not distinguish between civil and criminal matters. See 12 V.S.A. § 1615(b) (applying to all “court[s] or legislative, administrative, or other bod[ies] with the power to issue a subpoena”).
Prior to the Vermont Shield Law’s enactment, Vermont courts relied on United States v. Burke, 700 F.2d 70, 77 (2d Cir. 1983), for the proposition that there is “no legally-principled reason for drawing a distinction between civil and criminal cases when considering whether the reporter’s interest in confidentiality should yield to the moving party’s need for probative evidence.” See Spooner v. Town of Topsham, 2007 VT 98, ¶ 11, 937 A.2d 641 (Vt. 2007) (quoting United States v. Burke, 700 F.2d 70, 77 (2d Cir. 1983)).
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).
Washington's courts generally apply the same confidential source test in criminal and civil actions. Rinaldo, 102 Wn.2d at 755. There are no published Washington decisions regarding reporter's privilege for non-confidential information.
The shield statute, by its terms, applies to civil matters. See RCW 5.68.010(1).
In a West Virginia civil case where information is sought from a reporter that may identify a confidential source, the Reporters’ Privilege statute, W.Va. Code § 57-3-10, applies. Under that law, no reporter may be compelled to testify concerning the confidential source of any published or unpublished information obtained by the reporter in the course of news gathering activities or produce any information or testimony that would identify a confidential source, without the consent of the confidential source, unless there is a showing that such testimony is necessary to prevent imminent death, serious bodily injury or unjust incarceration.
When information unrelated to the identity of a confidential source is sought from a reporter in most other civil cases, the level of protection afforded the reporter in West Virginia, while not quite as strong, is nevertheless good. As stated by the state Supreme Court of Appeals in Hudok, the party seeking to compel information from a reporter generally must show "clearly and specifically" that the information sought from the reporter is (1) "highly material and relevant, necessary or critical to the maintenance of the case"; and (2) "not obtainable from other available sources." Thus, the burden on a party in a civil case seeking information from a non-party reporter is very high.
As for cases where the reporter has been sued for libel, the Hudok court suggested a lower level of source protection would be available. The Hudok court cited to Zerelli v. Smith, 656 F.2d 705, 714 (D.C. Cir. 1981), stating that "[w]here the reporter is a party, and particularly in a libel action, 'the equities weigh somewhat more heavily in favor of disclosure.'" 182 W. Va. at 504. The Hudok court specifically noted the Zerelli court's holding that this would be "particularly true in libel cases involving public officials or public figures where the rule of New York Times Co. v. Sullivan, 376 U.S. 254 (1964), applies." Id. at n.10.
However, in a 2011 libel case against a newspaper, the West Virginia Supreme Court reversed a trial court order directing disclosure of confidential source and news gathering materials. See State ex rel. Lincoln Journal, Inc. v. Hustead, 228 W. Va. 17, 23, 716 S.E.2d 507, 513 (2011). There, the Supreme Court applied the standards articulated in Hudok and directed the trial court to hold a “specific Hudok hearing” in which the court separately identified each alleged defamatory article with specificity, identified each source that the plaintiffs sought, and then conducted a separate Hudok analysis for each. Id. at 25–26.
The Hudok court explained the reporters' privilege as balancing the constitutional interests of a free press ("'a robust, unfettered, and creative press is indispensable to government by free discussion and to the intelligent operation of a democratic society'") with "a vital societal need for information." 182 W. Va. At 504–05.