1. Interlocutory appeals
When the media is a party in the district court action, 28 U.S.C. § 1292(b) grants discretion in the Court of Appeals to hear an interlocutory appeal based upon a finding that the decision below involves a controlling point of law as to which there is a substantial ground for difference of opinion and that an immediate appeal may advance the termination of the litigation. (There is case law in other Circuits granting such interlocutory appeals in reporter's privilege cases).
Interlocutory matters are issues that arise during the course of a lawsuit which decide a particular point but do not constitute a final decision of the entire controversy. Interlocutory matters are generally not appealable, since they are not “final decisions” concluding a proceeding. Denials of a motion to quash are generally interlocutory and not appealable. See Horizons Titanium Corp. v. Norton Co., 290 F.2d 421, 423 (1st Cir. 1961), and cases cited.
After having a motion to quash denied, if a reporter refuses to comply with a court order, the reporter can be held in contempt. The court’s decision to hold a reporter in contempt is considered a final decision that can be appealed. Also, if the reporter is a party to the case, once the court decides the case, either party can appeal the court’s decision, including its decision to compel (or not to compel) the reporter to produce information.
The general rule (subject to a few very limited exceptions) is that the Second Circuit has no appellate jurisdiction “over a non-party lawyer’s appeal from a district court order directing him to produce documents and appear for a deposition . . . where the lawyer has not disobeyed the order and been held in contempt.” In re Air Crash at Belle Harbor, New York on November 12, 2001, 490 F.3d 99 (2d Cir. 2007).
The rule for the timing of interlocutory appeals is that a litigant may appeal a district court order that is construed as a final appealable order if the appeal is made within ten days of the district court order. See 28 U.S.C. § 1292(b). Orders denying or mandating discovery are non-appealable interlocutory decisions. See Baker v. F & F Inv., 470 F.2d 778, 780 n.3 (2d Cir. 1972). In general, interlocutory appeals are not permitted for matters related to discovery, but under 28 U.S.C. 1292(b), the appeals court has discretion to take these appeals from an order by the district court. Although interlocutory appeals of discovery orders are usually not allowed, one may apply to the Second Circuit for a writ of mandamus compelling the trial court to reverse or modify its order. The standard for reviewing these applications is highly deferential to the trial court. A judgment of contempt involving a non-party is considered a final appealable judgment. See Von Bulow v. Von Bulow, 811 F.2d 136, 138 (2d Cir. 1987). A judgment of contempt involving a party may not constitute a final appealable judgment. See International Bus. Mach. Corp. v. United States, 493 F.2d 112 (2d Cir. 1973), cert. denied, 416 U.S. 995 (1974).
The Third Circuit has held that both a reporter who moves to quash a subpoena and receives less protection than was sought and a reporter who declines to comply with a valid subpoena and is therefore cited for contempt may take an immediate appeal on the ground that either order is final for purposes of appeal. Cuthbertson II, 651 F.2d at 193.
In addition, third parties with an interest in material or testimony to be presented at trial (such as a new organization whose newsgathering material has somehow found its way into the hands of a party without the organization's consent) may intervene in pending matters to seek a protective order. They can obtain immediate appellate review if the request is denied. United States v. RMI Co., 599 F.2d 1183, 1186 (3d Cir. 1979) ("[I]t is settled law that persons affected by the disclosure of allegedly privileged materials may intervene in pending criminal proceedings and seek protective orders, and if protection is denied, seek immediate appellate review.").
Generally, one served with a subpoena, either for trial or discovery, may not appeal a denial of a motion to quash without first resisting the subpoena and being found in contempt. United States v. Ryan, 402 U.S. 530, 533 (1971); Cobbledick v. United States, 309 U.S. 323, 328 (1940). Most cases in the Fourth Circuit involve a motion to quash appealed after a reporter was held in contempt or a final order issued. See Ashcraft v. Conoco Inc., 218 F.3d 282, 284 (4th Cir. 2000) (reporter appeals contempt order); Church of Scientology Int’l v. Daniels, 992 F.2d 1329, 1335, 21 Media L. Rep. 1426 (4th Cir. 1993), cert. denied, 510 U.S. 869 (1993) (plaintiff appeals summary judgment); In re Shain, 978 F.2d 850, 851, 20 Media L. Rep. 1930 (4th Cir. 1992) (reporters appeal contempt order); LaRouche v. Nat’l Broad. Co., Inc., 780 F.2d 1134, 1136, 12 Media L. Rep. 1585 (4th Cir. 1986), cert. denied, 479 U.S. 818 (1986) (plaintiff appeals final judgment); United States v. Steelhammer, 539 F.2d 273 (4th Cir. 1976), rev’d en banc, 561 F.2d 539, 540 (4th Cir. 1977) (reporters appeal contempt order).
In Sterling, the Government filed an interlocutory appeal after the district court quashed a subpoena issued to a reporter based on a qualified First Amendment reporter’s privilege. U.S. v. Sterling, 818 F.Supp.2d 945 (2011). The Fourth Circuit held that it had jurisdiction to review the appeal, but based its decision on a statute specific to the Government’s right to interlocutory appeal of pretrial orders suppressing or excluding evidence in criminal cases. U.S. v. Sterling, 724 F.3d 482, 491 (2013) (citing 18 U.S.C.A. § 3731).
An order denying a motion to quash is not a final decision under 28 U.S.C. § 1291 for purposes of appeal. In re Grand Jury Subpoena for Attorney Representing Criminal Defendant Reyes-Requena, 926 F.2d 1423, 1429 (5th Cir. 1991). Rather, the Fifth Circuit will "require the party to resist the subpoena and appeal from the order citing the party for contempt." Id.; Natural Gas Pipeline Co. of Am. v. Energy Gathering, Inc., 2 F.3d 1397, 1405 n.16 (5th Cir. 1993).
Even if a party obtains a ruling either granting or denying a motion for contempt, however, that order will not necessarily be considered final under 28 U.S.C. § 1291 and subject to direct appeal. See Lamar Financial Corp. v. Adams, 918 F.2d 564, 566 (5th Cir. 1990). Rather, an order either denying or granting a motion for contempt will be considered final only if it is not part of "continuing litigation." In re Grand Jury Subpoena for Attorney Representing Criminal Defendant Reyes-Requena, 926 F.2d at 1429. A contempt order is not part of continuing litigation if, for example, it is directed at a non-party, or if the motion for contempt is denied after the entry of the judgment which was the subject of the contempt. Sanders v. Monsanto, 574 F.2d 198, 199 (5th Cir. 1978). Such a denial is final and reviewable under Section 1291 because "no further district court action is necessary to give life to the denial." Id.; see also In re Grand Jury Subpoena for Attorney Representing Criminal Defendant Reyes-Requena, 926 F.2d at 1429 (indicating that an order is final when "no underlying case awaits final resolution").
Another line of cases puts the question of a contempt order's finality slightly differently: an order of civil or criminal contempt "is not 'final' for purposes of appeal unless two actions occur: (1) a finding of contempt is issued, and (2) an appropriate sanction is imposed." United States Abatement Corp. v. Mobile Exploration & Producing U.S., Inc., 39 F.3d 563, 567 (5th Cir. 1994) (civil contempt); Petroleos Mexicanos v. Crawford Enters., Inc., 826 F.2d 392, 398-99 (5th Cir. 1987) (civil and criminal contempt). The Fifth Circuit has held that a contempt order does not have to be in writing to be considered final, as long as it is not tentative and is meant to have immediate effect. In re U.S. Bureau of Prisons, Dep't of Justice, 918 F.3d 431, 438 (5th Cir. 2019) (holding that a district court’s failure to put a contempt order in writing did not render the decision non-final, and that “a lack of procedural formality does not shield a district court’s final decisions from appellate review under 28 U.S.C. § 1291”).
If the Fifth Circuit determines that an order granting or denying a contempt motion is not final, then the court will have jurisdiction to consider an appeal only if: (i) the district court certifies the order for interlocutory appeal under 28 U.S.C. § 1292(b) or (ii) another statute, such as 28 U.S.C. § 1826(b) or 18 U.S.C. § 3731, grants appellate jurisdiction.
Section 1292(b) permits the court of appeals, in its discretion, to accept an appeal if the district court certifies that an interlocutory order "involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation" and the appellant applies to the court of appeals for interlocutory review within 10 days after entry of the challenged order. 28 U.S.C. § 1292(b).
Pursuant to 28 U.S.C. § 1826, a recalcitrant witness may be summarily confined until such time as the contemnor is willing to submit to an order of the court to testify or provide other information. The statute affords a witness so confined a right of expedited appeal, In re Dinnan, 652 F.2d 1146, 1150 (5th Cir. Unit B Aug. 1980), which "shall be disposed of as soon as practicable, but not later than 30 days from the filing of such appeal." 28 U.S.C. § 1826(b). Thus, the court of appeals has jurisdiction to review such an order.
Under 18 U.S.C. § 3731, the government is entitled to appeal from a district court order suppressing or excluding evidence in a criminal case. For instance, in United States v. Smith, the Fifth Circuit heard a direct appeal by the government from the district court's grant of a journalist's motion to quash a grand jury subpoena based on the journalist's successful assertion of the qualified reporter's privilege. 135 F.3d 963 (5th Cir. 1998).
Fed. R. Civ. P. 74(a) provides that, within a certain time frame, a party may file an appeal of the magistrate judge's decision. 12 Charles Alan Wright & Arthur R. Miller, Federal Practice And Procedure § 3074, 426 (2d ed. 1997). Generally, the reporter should file a notice of a appeal within 30 days of judgment from a magistrate judge's decision. Id. If, however, the United States or an officer or agency of the United States is a party, the notice of appeal may be filed within 60 days of the magistrate judge's entry of judgment. Id. Other parties may also file a notice of appeal within 14 days once a timely motion of is filed by any party. Id. It should be noted that the filing of four specific types of motions will stop the running of time limits for the filing of a notice of appeal under Rule 74(a). Id. at 427. These motions include a motion for judgment under Rule 50(b), a motion to amend or make additional findings of fact under Rules 52(b), a motion under Rule 59(e) to alter or amend judgment, and a motion for a new trial under Rule 59(a). Id. at 432.
Where a court orders a journalist to disclose the identity of a confidential source, the order should be appealed immediately, despite the general refusal of appellate discovery orders. That is because compliance with the order by disclosing the source's identity would have the effect of preventing an appellate court from protecting the asserted need for confidentiality. Alternatively, the subpoenaed reporter may risk disobeying the subpoena and then appeal the resulting contempt order. Id. If the reporter, however, is found guilty of criminal contempt for failing to comply with the subpoena, the contempt proceeding is then considered independent of the underlying action. Id. at 88. Therefore, the order punishing the contempt is a final judgment and is appealable. Id.
Alternatively, if the failure to obey the subpoena is treated as a civil contempt, the order that results is theoretically not appealable since it is part of an ongoing civil case and is not final. Id. One exception to these limitations is, for example, when a subpoena is issued in one district for discovery regarding a case pending in a different district. Id. The order of the district court that issued the subpoena to quash the subpoena is considered final and appealable. Id. at 89. If the motion to quash the subpoena is denied there is no exception granted.
No cases discuss this in the context of the reporter's privilege. Generally, the quashing of subpoenas is treated as a discovery ruling that is not appealable because it is not a final order under 28 U.S.C. § 1291. In order to get an appeal from a decision on a motion to quash, the subpoenaed party must disobey the subpoena and be held in contempt. In re Grand Jury Subpoena Duces Tecum appeal of Anonymous Corp., 725 F.2d 1110 (7th Cir. 1984). For the most part, only criminal contempt is appealable as a final order. In re Joint Eastern & Southern Districts Asbestos Litigation, 22 F.3d 755, 764 (7th Cir. 1994). But see Commodity Futures Trading Comm'n v. Collins, 997 F.2d 1230, 1232 (7th Cir. 1993) (decision on motion to quash was appealable as final order because the subpoena was the only action pending in the court). The decision in Commodity Futures suggests that a media party could appeal the decision of a court refusing to quash a subpoena when the only issue pending in that court is the subpoena. See also McKevitt v. Pallasch, 339 F.3d 530, 531 (7th Cir. 2003) (7th Circuit considered stay of order to produce tapes, only issue in lower court under 28 U.S.C. §1782).
If a reporter refuses to provide information to a grand jury, he can be immediately held in contempt and even confined. 28 U.S.C. § 1826 (a). In such a case, a reporter may appeal the decision of the court to the Court of Appeals. In re Matter of a Witness Before the Special October 1981 Grand Jury, 722 F.2d 349, 352 (7th Cir. 1983).
Decisions can also be appealed under 28 U.S.C. § 1292(b). This rule provides that an interlocutory order in a civil action may be appealed if the district court certifies that the order "involves a controlling question of law as to which there is substantial ground for difference of opinion, that an immediate appeal from the order may materially advance the ultimate determination of the litigation."
For the Ninth Circuit to have jurisdiction to entertain an appeal, a final district court judgment or appealable interlocutory decision must be rendered. See Goelz, Watts & Batalden, Rutter Group Practice Guide: Federal Ninth Circuit Civil Appellate Practice 1:108 (The Rutter Group 2017) (hereinafter “Rutter”). Generally, a judgment or order is appealable if it represents a district court’s final disposition of either a collateral issue or of all issues in the proceedings. Rutter 2:10. An interlocutory order deciding a critical legal issue is reviewable if the order has been certified for appeal by the district court and the appellate court has accepted jurisdiction. Rutter 2:156.
When a district judge . . . shall be of the opinion that [an] order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation . . . . [t]he Court of Appeals . . . may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order.
28 U.S.C. § 1292(b).
Generally, there is no immediate appeal from the entry of discovery orders or the issuance of subpoenas. Rutter 2:404. Instead, the right of appeal lies from a contempt adjudication. Id.; see also In re Grand Jury Witness (Salas v. United States), 695 F.2d 359, 361 n.3 (9th Cir. 1982) (stating that the denial of a motion to quash is “not appealable by the party from whom documents or testimony is sought,” but rather the “party subpoenaed must be held in contempt before the issue is ripe for appellate review”). Discovery orders and subpoenas are unripe for review because the resisting party has the option of refusing to comply. Rutter 2:405. If the resisting party refuses to comply and is held in contempt, that party can challenge the validity of the discovery order or subpoena by seeking appellate review of the contempt order. Id.
Alaska appellate courts have not had occasion to squarely address the existence or scope of a reporter's privilege. Various trial courts have recognized and applied the qualified constitutional privilege in a number of cases, and in none of these has testimony or production of documents been compelled. The shield law provides, in AS 09.25.330, that an order of the superior court entered under AS 09.25.300 - 09.25.390 shall be subject to review by the supreme court, by appeal or by certiorari, as the rules of that court may provide. This law was enacted when the supreme court was the state's only appellate court. It may well provide a basis for a press appeal directly to the supreme court, even though there is now an intermediate court of appeals for criminal cases only. In practice, in the isolated case where a subpoena has been quashed by the trial court in a criminal case, the issue has been raised as part of a post-trial appeal to the court of appeals, as one of the points on appeal filed by the convicted defendant, rather than through direct resort to the supreme court. The court of appeals has not addressed the effect, if any, of the shield law's language on its jurisdiction over this matter.
In Arizona, discretionary interlocutory appeals are called "special actions." Special actions are extraordinary remedy proceedings previously termed certiorari, mandamus and prohibition. Rule 1(a), Rules of Procedure for Special Actions (R.P.S.A.). No strict time limits govern the time for initiating special actions. A special action brought in an appellate court is initiated by filing a petition similar in form to an appellate brief. R.P.S.A. 7. Upon receipt of a petition, the appellate court may set a time for oral argument and/or a time for the filing of a response.
Special actions are different than direct appeals, which may be brought only from final, appealable orders and judgments. Discovery rulings, including orders granting or denying a motion to quash, are generally not considered final, appealable orders. The Arizona Court of Appeals has accepted special action jurisdiction in cases raising issues involving the application of the Media Subpoena Law. See Reinstein, 240 Ariz. at 444, 381 P.3d at 238; see also Carpenter v. Superior Court (Phoenix Police Dep't), 176 Ariz. 486, 487, 862 P.2d 246, 247 (Ct. App. 1993) (accepting special action jurisdiction over an order quashing a subpoena directed to the Phoenix Police Department where the trial court's order was not appealable and the discovery procedure used raised an issue of statewide importance).
Special action relief may be sought where a trial court orders a party to divulge privileged material, or refuses to protect allegedly confidential or privileged information. See, e.g., Arizona Portland Cement Co. v. Arizona State Tax Court, 185 Ariz. 354, 357, 916 P.2d 1070, 1073 (App. 1995) (granting special action relief where the trial court compelled a cement company to produce private business records and financial information without granting the company's corresponding motion for protective order); Blazek v. Superior Court (Segrave), 177 Ariz. 535, 536, 869 P.2d 509, 510 (App. 1994) ("a special action is the appropriate means of relief when a party is ordered to disclose what she believes is privileged material"). Cf. Scottsdale Publ'g, Inc. v. Superior Court, 159 Ariz. 72, 74, 764 P.2d 1131, 1133 (Ct. App. 1988) (exercising special action jurisdiction "in furtherance of the public's significant first amendment rights in protecting the press from the chill of meritless libel actions").
Civil contempt citations can be appealed by special action only. See, e.g., 1 Hon. Sheldon H. Weisberg and Paul G. Ulrich, eds., Arizona Appellate Handbook § 220.127.116.11.2.4, at 3-21 (4th ed. 2000) (citing Pace v. Pace, 128 Ariz. 455, 456-57, 626 P.2d 619, 620-21 (Ct. App. 1981)).
Generally, an order denying a protective order or motion to quash a subpoena is not a final order for appeal purposes. See Ark. R. App. P. Civ. 2(a); see also Matter of Badami, 309 Ark. 511, 831 S.W.2d 905 (1992) (stating that the denial of the executive director of state Judicial Discipline and Disability Commission for a protective order prohibiting disclosure of confidential documents to the prosecuting attorney was not a final order from which an appeal could be taken). However, the Arkansas Rules of Civil Procedure and the Arkansas Rules of Appellate Procedure were recently amended to allow for an interlocutory appeal when the defense to production of discovery is any privilege recognized by Arkansas law. See Ark. R. Civ. P. 26(f); Ark. R. App. P. Civ. 2(f).
Because California’s shield laws only protect against a finding of contempt, an appeal may be found to be premature before the trial court has actually found the reporter in contempt. See New York Times Co. v. Superior Court, 51 Cal. 3d 453, 458, 796 P.2d 811, 273 Cal. Rptr. 98 (1990). However, as the California Supreme Court also made clear in this decision:
To avoid confinement under a judgment of contempt that may subsequently be set aside, a trial court should stay its judgment of contempt to allow the contemnor newsperson sufficient time in which to seek writ relief if the trial court believes there is any colorable argument the newsperson can make against the contempt adjudication. If the trial court nevertheless declines to issue a stay, a reviewing court should do so pending its decision whether to issue an extraordinary writ.
Id. at 460.
California’s rules do not allow for a direct appeal of a civil contempt order. See Cal. Code Civ. Proc. § 904.1. Consequently, if a contempt order is entered, the reporter should file a petition for extraordinary relief, seeking a writ of review, mandate or prohibition to the trial court, pursuant to California Code of Civil Procedure §§ 1067, 1084 or 1102. Although California’s courts generally do not grant discretionary review of discovery matters, “[e]xtraordinary review will be granted, . . . when a discovery ruling plainly threatens immediate harm, such as loss of a privilege against disclosure, for which there is no other adequate remedy . . . or where the case presents an opportunity to resolve unsettled issues of law and furnish guidance applicable to other pending or anticipated cases . . . .” O’Grady v. Superior Court, 139 Cal. App. 4th 1423, 1439, 44 Cal. Rptr. 3d 72 (2006) (citations omitted).
California’s statutes do not impose a time limit for such writs; however, the appellate court “has discretion to deny a petition filed after the 60-day period applicable to appeals, and should do so absent ‘extraordinary circumstances’ justifying the delay.” Popelka, Allard, McCowan & Jones v. Superior Court, 107 Cal. App. 3d 496, 499, 165 Cal. Rptr. 748 (1980) (citations omitted; emphasis in original). Moreover, from a practical perspective, if the trial court stays the contempt order for a limited period of time, the deadline for filing the writ petition will be dictated by the duration of the trial court stay.
Under Colorado Appellate Rules, a final judgment of a district court may be appealed. C.A.R.1. The appellant has 45 days from entry of the judgment to file a notice of appeal. C.A.R. 4.
Where no final order has been entered, a newsperson may seek a writ of mandamus with the Supreme Court. Mandamus is available only upon a showing that judicial discretion has been abused and the harm to the newsperson cannot be cured on appeal. See e.g., Seymour v. District Court, 581 P.2d 302 (Colo. 1978).
A discovery order on a motion to quash or motion to compel ordinarily is not considered final and appealable. Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 107 (2009). Thus, a litigant cannot immediately appeal such a discovery order, but must instead either comply or refuse to do so and appeal from a resulting contempt order. E.g., Lee v. Dep’t of Defense, 413 F.3d 53, 59 (D.C. Cir. 2005); Office of Thrift Supervision v. Dobbs, 931 F.2d. 956, 957 (D.C. Cir. 1991) (“[t]o obtain review of subpoena, a party must refuse to comply with the subpoena, be held in contempt by the trial court, and appeal the finding of contempt to the appellate court”); In re Sealed Case, 162 F.3d 670, 673 (D.D.C. 1998) (“one to whom a subpoena is directed may not appeal the denial of a motion to quash that subpoena but must either obey its commands or refuse to do so and contest the validity of the subpoena if he is subsequently cited for contempt on account of his failure to obey”) (internal marks omitted). Review of a contempt order entails review of the underlying issue of whether the reporter’s privilege applies. Lee, 413 F.3d at 59.
The D.C. Circuit has recognized a narrow exception to the general rule on the non-appealability of discovery orders: If a motion to quash a subpoena served on a non-party is granted by a court in a district other than the one in which the underlying action is pending, case law suggests that such an order is final and appealable as it is the final disposition of the issues before that court. See Northrop Corp. v. McDonnell Douglas Corp., 751 F.2d 395, 399 (D.C. Cir. 1984); 9 Moore’s Fed. Prac. Civ. § 45.71 (3d ed. 2018).
A denial of a motion to quash is an interlocutory order and is subject to the appropriate court's appellate rules. The trial court must certify that the issue is substantial, affects a legal right, and meets additional criteria. The party requesting the appeal bears the burden of proof. See generally Supr. Ct. R. 42.
A party subject to an interlocutory order that does not appeal that order immediately does not waive its ability to appeal the issue after final judgment has been entered. 10 Del. C. § 144.
District of Columbia
Generally, denial of motion to quash or a motion to compel (when non-parties are not involved) is not a final and appealable order. In re Johnson, 699 A.2d 362, 367 n.14 (D.C. 1997) (denial of motion to quash subpoena for a psychiatric examination is not final order). Additionally, an order on a subpoena or other discovery directed to a non-party witness is not final, and therefore is not appealable, until the witness has failed to comply and has been sanctioned by the trial court. Crane v. Crane, 614 A.2d 935, 940 (D.C. 1992); United States v. Harrod, 428 A.2d 30, 31 (D.C. 1981) (en banc). Notably, in Prentice v. McPhilemy, 27 Med. L. Rptr. 2377, 2388 (D.C. Super. Ct. 1999), the court denied the plaintiffs’ motion for reconsideration, which sought, inter alia, an amendment to its previous order to allow plaintiffs to take an immediate appeal pursuant to D.C. Code § 11-721(d) and D.C. Ct. App. R. 5. The court concluded that, given the plain terms of the District’s shield law, the case did not involve “a controlling question of law as to which there is substantial ground for difference of opinion.”
A reporter may seek review of the denial of a motion to quash without waiting to be held in contempt for failing to comply with the subpoena. Review should be sought by a petition for writ of certiorari. TheStreet.com, Inc. v. Carroll, 20 So. 3d 947, 949 (Fla. 4th DCA 2009). A petition for certiorari must be filed within thirty (30) days of the rendering of the order. See Fla. R. App. P. 9.100(c).
A denial of a motion to quash can be appealed directly by a non-party reporter, without having to wait until a reporter is held in contempt for failing to comply with the subpoena. See, e.g., In re Paul, 270 Ga. 680, 686 (1999) ("[W]e hold that non-parties engaged in news gathering may file a direct appeal of an order denying them a statutory reporter's privilege under the collateral order exception to the final judgment rule.").
There is no authority in Hawai'i stating that a reporter must wait until he or she is held in contempt for failing to comply with a subpoena before appealing a denial of a motion to quash.
In order to appeal an interlocutory order, the appealing party must apply for leave from the court issuing the order from which appeal is sought to be taken. HRS § 641-1(b). Within thirty days from the filing of the order being appealed, the appealing party must request leave to file an interlocutory appeal, the court must enter an order pursuant to HRCP Rule 45(b) granting such leave, and the appealing party must file a notice of appeal in the court that issued the order being appealed. HRAP 4(a)(1); King v. Wholesale Produce Dealers Ass'n, 69 Haw. 334, 335, 741 P.2d 721, 722 (1987). The thirty-day period runs from the entry of the order appealed from, not from the date that leave to appeal is granted. King, 69 Haw. at 335, 741 P.2d at 722.
Alternatively, an appeal might possibly be taken under the collateral order doctrine. International Sav. & Loan Ass'n v. Woods, 69 Haw. 11, 731 P.2d 151 (1987); Association of Owners of Kukui Plaza v. Swinerton & Walburg, 68 Haw. 98, 705 P.2d 28 (1985). The doctrine allows appeals from orders falling "in that small class which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated." Swinerton, 68 Haw. at 105, 705 P.2d at 34 (quoting Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949)). An interlocutory order is appealable pursuant to the collateral order doctrine if it: "(1) fully disposes of the question at issue; (2) resolves an issue completely collateral to the merits of the case; and (3) involves important rights which would be irreparably lost if review had to await a final judgment." State v. Baranco, 77 Hawai'i 351, 353-54, 884 P.2d 729, 731-32 (1994) (citing Abney v. United States, 431 U.S. 651, 658-59 (1977)). An appeal taken pursuant to the collateral order doctrine is governed by the same time limits applicable to an ordinary interlocutory appeal.
Finally, if an appeal is not available, a writ of mandamus could be sought. A writ of mandamus is an extraordinary remedy which will not issue unless the petitioner demonstrates: (1) a clear and indisputable right to relief; and (2) a lack of other means adequately to redress the wrong or to obtain the requested action. State v. Oshiro, 69 Haw. 438, 441, 746 P.2d 568, 570 (1987). A petition for a writ of mandamus is not intended to take the place of an appeal. Kema v. Gaddis, 91 Haw. 200, 204-05, 982 P.2d 334, 338-339 (1998). A writ of mandamus is warranted where there is a showing of "irremedial abuse resulting in a denial of justice." Fong v. Sapienza, 39 Haw. 79, 79 (1951). A writ of mandamus will not be issued if the right to appeal is available. Brown v. Hawkins, 50 Haw. 232, 235, 437 P.2d 97, 98 (1968). In practice such extraordinary writs are rarely granted.
If a course other than a writ of review is pursued for some extraordinary reason, such as an interlocutory appeal, then the motion for permission to appeal an interlocutory contempt order or denial of a motion to quash must be filed within 14 days from entry of the order being appealed. Permission is initially sought from the trial court; in the event the trial court denies the motion, a motion for permissive appeal may still be filed with the Idaho Supreme Court. As a practical matter, however, it is unlikely the Idaho Supreme Court will grant a motion for permissive appeal if the same has already been denied by the trial court. Ultimately, the appeal court must still decide on its own to grant the permissive appeal, even where the motion has been granted by the trial court.
The Illinois Supreme Court has held that a trial court’s order, made as a preliminary discovery order in a pending suit, is interlocutory in nature and not subject to review under Illinois Supreme Court Rule 301, which provides for appeals from final judgments as a matter of right, or under Illinois Supreme Court Rules 306, 307, or 308, which provide for appeals from specific interlocutory orders.’ People ex. rel. Scott v. Silverstein, 87 Ill. 2d 167, 429 N.E.2d 483 (1981).
In Silverstein, defendant subpoenaed a newspaper reporter for his deposition and production of certain documents; the reporter’s motion to quash pursuant to the Statute was denied. The Illinois Supreme Court held that a preliminary discovery order denying assertion of the statutory privilege is not appealable because it is reviewable on appeal from the final order. “[A]n order cast in terms of a contempt proceeding imposing sanctions is a final and appealable order and has been held to be an appropriate method for testing pretrial discovery orders.” Id. at 171-72, 429 N.E.2d at 486. Although a sanction for contempt occurs within the context of another proceeding and seems interlocutory, it is an independent hearing, collateral to the case in which it arises. Id. Thus, an interlocutory order requiring a reporter to disclose information as a preliminary discovery order is unappealable until it results in a judgment of contempt, including a fine or imprisonment. Id. at 174, 429 N.E.2d at 487.
Orders divesting reporters of the privilege are final and appealable when divestiture was the sole purpose of the proceeding. People v. Pawlaczyk, 189 Ill. 2d 177, 187, 724 N.E.2d 901, 908 (2000) (special prosecutor initiated separate chancery actions “for the specific purpose of divesting the reporters of the privilege created by the Act”). When “nothing remains to be done in the proceedings except to execute the judgment of the trial court . . . [t]his court possesses the necessary jurisdiction to decide defendants’ appeal.” Id.
Rule 14 of the Indiana Rules of Appellate Procedure governs interlocutory appeals. With respect to timing, the rule provides: “A motion requesting certification of an interlocutory order must be filed in the trial court within thirty (30) days after the date the interlocutory order is noted in the Chronological Case Summary unless the trial court, for good cause, permits a belated motion,” and “[t]he motion requesting that the Court of Appeals accept jurisdiction over an interlocutory appeal shall be conventionally filed within thirty (30) days after the date the trial court’s certification is noted in the Chronological Case Summary.”
A denial of a motion to quash may be appealed. See, e.g., In re Stearns (Vollmer v. Zulka), 489 N.E.2d 146, 147 (Ind. App. 1986).
A party aggrieved by an interlocutory ruling or decision, such as the denial of a motion to quash, may apply to the Iowa Supreme Court for review in advance of final judgment. Iowa R. App. P. 6.104(1)(a). The appeal must be sought within 30 days of the order's entry. Iowa R. App. P. 6.104(1)(b)(2). The appeal will be granted if (1) the ruling or decision involves substantial rights; (2) the ruling or decision will materially affect the final decision; and (3) a determination of its correctness before trial on the merits will better serve the interests of justice. Id.
There have been no decisions regarding this issue since the legislation implementing the Kansas shield law was passed. The shield statutes themselves do not provide that an aggrieved party has a right to an interlocutory appeal from an adverse decision. This suggests that it is likely that Kansas courts would require a reporter to be held in contempt prior to pursuing an appeal. If a journalist is ordered to testify or disclose information and complies with the court’s order, it is likely an appellate court would view an appeal from the adverse decision as moot. Requests for interlocutory appeals in civil cases must be filed within ten days of the entry of the order appealed from. Kansas Supreme Court Rule 4.01. Acceptance of such requests is discretionary.
Denials of motions to quash are interlocutory and are not immediately appealable in Kentucky. Parties who have suffered an adverse judgment must proceed through a writ of prohibition. Lexington Herald-Leader Co. v. Beard, 690 S.W.2d 374, 376 (Ky. 1984) (citing Claussner Hosiery Co. v. City of Paducah, 120 S.W.2d 1039 (Ky. 1938).
An order revoking the privilege, ordering disclosure, or compelling compliance with a subpoena is appealable under Code of Civil Procedure Article 2083. La. R.S. 45:1453, 45:1459(E).
Article 2083 states "an appeal may be taken from a final judgment rendered in cases in which appeals are given by law whether rendered after hearing or by default, and from an interlocutory judgment which may cause irreparable injury."
The delay for taking a devolutive appeal (one which does not suspend the judgment) is sixty (60) days; the delay for taking a suspensive appeal (one which does suspend the judgment) is thirty (30) days. La. Code Civ. Proc. 2087, 2123.
There is an exception to the "final judgment" rule, thereby allowing interlocutory appeals, when a party's constitutional rights may be substantially impaired or destroyed. The Maine Supreme Court would likely hear an interlocutory appeal claiming that compelled disclosure would impair First Amendment rights or a privilege. See In re Letellier, 578 A.2d 722, 724 (Me. 1990) (the court heard an “immediate appeal[ ]”).
Appeal of Injunction: A party may appeal from any of the following interlocutory orders, inter alia, entered by a circuit court in a civil case:
(i) Granting or dissolving an injunction, but if the appeal is from an order granting an injunction, only if the appellant has first filed his answer in the cause.
(ii) Refusing to dissolve an injunction, but only if the appellant has first filed his answer in the cause.
(iii) Refusing to grant an injunction; and the right of appeal is not prejudiced by the filing of an answer to the bill of complaint or petition for an injunction on behalf of any opposing party, nor by the taking of depositions in reference to the allegations of the bill of complaint to be read on the hearing of the application for an injunction.
Md. Code. Ann., Cts. & Jud. Proc. § 12-303 (2017).
The Court of Special Appeals of Maryland has ruled that denial of the media's motion to intervene is an appealable order. This ruling coincides with the court's finding that "[s]imply because a trial may have reached a certain stage does not mean that First Amendment rights are greater or less than at any other stage." Hearst Corp. v. State, 484 A.2d 292, 295 (Md. 1984).
The Court of Special Appeals recognizes the right of a non-party to an immediate appeal of order compelling the non-party to testify. Forensic Advisors, Inc. v. Matrixx Initiatives, Inc., 907 A.2d 855, 35 Med. L. Rep. 1115, (Md. App. 2006), appeal dism'd, 918 A.2d 468 (Md. 2007).
Contempt: § 12-402 of the Courts and Judicial Proceedings Article provides:
"Any person may appeal from any order or judgment passed to preserve the power or vindicate the dignity of the court and adjudging him in contempt of court. This includes an interlocutory order, remedial in nature, adjudging any person in contempt, whether or not a party to the action."
Md. Code Ann., Cts. & Jud. Proc. § 12-402 (2017).
Under Massachusetts Rules of Criminal Procedure 43 and 44, a person adjudged in criminal contempt may only apply to the Massachusetts Appeals Court for relief. For rules related to the timing of an appeal, see Mass. R. App. P. 4, 14; Mass. R. Crim. P. 15.
An adjudication of civil contempt against a nonparty is an appealable final judgment. In re Roche, 411 N.E.2d 466, n. 1 (Mass. 1980).
Interlocutory appeals are allowed under the Michigan Court Rules. See MCR 7.305(C)(3) (discussing application for interlocutory appeal). If a court has refused a motion to quash a subpoena, the recipient of the subpoena may file an interlocutory appeal. See Stavale v. Stavale, 332 Mich. App. 556, 957 N.W.2d 387 (2020) (granting interlocutory appeal of court’s refusal to quash subpoena). The appellate courts have been fairly receptive to interlocutory appeals by media organizations.
The only difference between appealing a discovery subpoena versus a trial subpoena is timing. MCR 7.205(A). Appellate courts are deferential to trial courts, which is reflected in the abuse of discretion standard of review used in reviewing trial court decisions on appeal. See Appeals & Opinions Benchbook, Mich. Jud. Institute (2d ed. 2021), https://mjieducation.mi.gov/documents/benchbooks/13-ao/file. Therefore, be prepared for swift justice. One can also file a motion for emergency appeal to get expedited treatment if necessary. MCR 7.205(f).
An interlocutory appeal is obtained by motion for leave to appeal. See MCR 7.205. Frequently, on these issues, and especially if the matter is time-sensitive, the court will issue an order granting the appeal, which contains the substantive decision on the merits. MCR 7.105(E)(3). That is to say, the court will rule on the appealable issue rather than merely accepting leave to appeal, which would trigger additional briefs due within 56 days followed by a hearing a year later. MCR 7.212(A)(1)(a)(iii).
This means that parties must put their best arguments in their brief in support of an interlocutory appeal. A party’s brief in support of the motion for leave to appeal may be the only opportunity to address the court on the merits. It therefore needs to be complete and persuasive.
Most orders compelling or refusing to compel disclosure of source and unpublished material will be in the context of discovery rather than final judgments. Many jurisdictions would regard review of such orders as interlocutory, unless appeal is taken from an order holding the reporter in contempt for failing to disclose. The Minnesota statute, however, treats all appeals from orders relating to the shield statute as normal appeals under the state rules of appellate procedure. Minn. Stat. §595.024 subd. 3. This is true even of appeals from discovery orders in defamation actions. Minn. Stat. § 595.025 subd. 3.
Miss. R. App. 5(a), provides that an interlocutory appeal "may be sought by filing a petition for permission to appeal with the clerk of the Supreme Court within 21 days after the entry of such order in the trial court with proof of service on the trial judge and all other parties to the action in the trial court."
Appeals of a denial of a motion to quash (or an upholding of the movant’s motion to compel) must be made by a writ of prohibition to the appropriate appellate court. There is no time frame within the Supreme Court Rules for the filing of the writ, but the general practice in the state is that a writ is filed very shortly after the lower court ruling in order to preserve the stay pending the appellate process. Alternatively, if the court will entertain a request that the judgment on the subpoena be made “final” for purposes of appeal, a traditional appeal can be taken while the underlying case proceeds on its regular timeline.
An order denying a motion to quash or motion for a protective order is not immediately appealable. However, where the lower court had a clear duty to quash the subpoena or issue a protective order, the denial can be challenged in an original action for mandamus in the Nebraska Supreme Court. State ex rel. Acme Rug Cleaner, Inc. v. Likes, 256 Neb. 34, 588 N.W.2d 783 (1999). A final judgment of criminal contempt is appealable. An order holding a witness in civil contempt is not appealable and must be challenged via an original habeas corpus action in the Nebraska Supreme Court.
A petition for writ of prohibition or mandamus in connection with a discovery order is an appropriate remedy to prevent pretrial discovery of privileged material. Toll v. Wilson, 135 Nev. 430, 436, 453 P.3d 1215, 1219 (2019) (“A writ of prohibition is appropriate when the relief is to ‘arrest the proceedings’ and prohibit some exercise of judicial function. NRS 34.320. The judicial function in this case is to compel Toll to reveal his sources, which Toll seeks to prohibit.”).
There are no specific rules or procedures related to the timing of an appeal from a denial of a motion to quash. That said, a party seeking to appeal should expeditiously apply to the lower court that issued the decision for permission to appeal to the Supreme Court. See Supreme Court Rule 8. If permission is granted, an appeal would be filed with the Supreme Court, which has the discretion to reject the appeal. In that event, if the issue were not moot it could be raised at the conclusion of the case or, possibly, at a later, more appropriate stage.
The appeal is interlocutory; however, the New Jersey Supreme Court has found that a decision ordering production "is immediately appealable as of right." State v. Boiardo, 82 N.J. 446, 471 (1980). It is made by motion and the court will grant leave to appeal "in the interest of justice." Generally appeal will be granted. The privilege specifically holds that the filing of an interlocutory appeal "shall act as a stay of all penalties which may have been imposed for failure to comply with the court's order." Once the appeal is filed the record is sealed until all appeals are exhausted and if the appeal is successful the record is permanently sealed.
Rule 11-514 provides that “[a]ny order requiring ... disclosure may be appealed by any party or by the person asserting the privilege, if not a party, in the procedural manner provided by the Rules of Appellate Procedure.” Rule 11-514(D) NMRA. But the reporter’s-privilege statute enacted by the legislature in 1973 calls for appellate procedures quite alien to the Rules of Appellate Procedure: it provides that “an order [of disclosure] is appealable to the supreme court if the appeal is docketed in that court within ten days after its entry.” NMSA 1978, § 38-6-7(C) (1973). Although the supreme court in Ammerman v. Hubbard Broadcasting, Inc., 89 N.M. 307, 551 P.2d 1354 (1976), found much of this statute to be an unconstitutional arrogation of judicial power by the legislature, the court acknowledged that the legislature “[u]nquestionably ... has the power to determine in what district court cases, civil and criminal, this court shall exercise appellate jurisdiction,” id. at 312, 551 P.2d at 1359. Arguably, then, the supreme court has a duty to hear an interlocutory appeal taken within ten days from any disclosure order. To play it safe, however, a journalist seeking appellate review of such an order may wish to file provisional notices of appeal “in the procedural manner provided by the Rules of Appellate Procedure.” Rule 11-514(D) NMRA. The remainder of this section discusses appellate procedures of general application.
If an order recites that it “involves a controlling question of law as to which there is substantial ground for difference of opinion and ... an immediate appeal ... may materially advance the ultimate termination of the litigation,” NMSA 1978, § 39-3-4(A) (1999), an aggrieved party can apply for an interlocutory appeal within 15 days after entry of the order, see Rule 12-203(A) NMRA. The appellate court has discretion to accept the appeal or decline it. See Rule 12-203(B) NMRA.
If the order does not contain the certification necessary for interlocutory appeal, the aggrieved party can seek a “writ of error” – the vehicle for review under the collateral-order doctrine – within 30 days after the order is filed. Rule 12-503(C) NMRA. The application for a writ of error must demonstrate that the order “(a) conclusively determines the disputed question; (b) resolves an important issue completely separate from the merits of the action; and (c) would be effectively unreviewable on appeal from a final judgment because the remedy by way of appeal would be inadequate.” Rule 12-503(E)(2) NMRA. “The appellate court in its discretion may issue the writ." Rule 12-503(L) NMRA.
A journalist might also seek an “extraordinary writ” of prohibition from the supreme court, see Rule 12-504 NMRA, though this remedy is highly discretionary and rarely granted. It is particularly disfavored when review appears at least theoretically available by another means or in another court. See Rule 12-504(B)(1)(b) NMRA.
Alternatively, the journalist might choose to disobey the order and incur a finding of contempt. A state statute provides that “[a]ny person aggrieved by the judgment of the district court in any proceeding for civil contempt, and any person convicted of criminal contempt except criminal contempt committed in the presence of the court, may appeal within thirty days from the judgment of conviction.” NMSA 1978, § 39-3-15(A) (1966). Despite the exception carved out by this statute for “criminal contempt committed in the presence of the court,” New Mexico courts apparently consider convictions on such charges no less appealable than other categories of contempt. See, e.g., State v. Ngo, 2001-NMCA-041, ¶ 7, 130 N.M. 515, 27 P.3d 1002 (order of direct criminal contempt is “final and appealable when entered”).
Rules governing procedures in courts of limited jurisdiction – i.e., the metropolitan court (which currently exists only in Bernalillo County) and the magistrate courts – do not appear to contemplate interlocutory appeals. See Rule 1-072(A) NMRA (permitting appeal from “judgment or final order”); Rule 1-073(A) NMRA (same); Rule 2-705(A) NMRA (same); 3-706(A) NMRA (same). But Rule 11-514 expressly empowers a reporter to appeal from an order of disclosure “in the procedural manner provided by the Rules of Appellate Procedure” – rules that do allow for interlocutory appeals. See supra. In any event, a notice of appeal from a court of limited jurisdiction must be filed within 15 days after the filing of the judgment or order at issue. See Rule 1-072(A) NMRA; Rule 1-073(A) NMRA; Rule 2-705(A) NMRA; Rule 3-706(A) NMRA.
Under CPLR § 5701(a)(2), an appeal to the appellate division in a civil case may be taken as a matter of right on certain orders, including interlocutory orders, where the motion resulting in the order was made on notice. (Appeals stemming from ex parte orders are governed by CPLR § 5701(a)(3).) Among the categories of orders which may be appealed as of right are those that "involve some part of the merits" of the action and orders that "affect a substantial right." CPLR § 5701(a)(2). These categories sweep broadly, and there are "precious few" orders which may not be appealed from as a matter of right. Siegel, New York Practice at 858 (West Publishing, 3d Ed. 1999). In addition, an appeal may be taken on permission of the judge who issued the order appealed from. CPLR § 5701(c). While there does not appear to be any case law addressing whether a reporter appealing the denial of a motion to quash should proceed "as of right" or by permission, “a substantial right” of the reporter will be affected by the order to disclose the material, so he or she should arguably bring the appeal under CPLR § 5701(a)(2)(v), as of right.
It should also be noted that pursuant to the CPLR, only "judgments" or "orders" may be appealed. See CPLR § 5512; Grisi v. Shainswit, 119 A.D.2d 418, 507 N.Y.S.2d 155 (1st Dep't 1986) (no appeal lies from a ruling, as distinct from an order). Civil Rights Law § 79-h(c) requires that any court which orders disclosure of nonconfidential information "shall support such order with clear and specific findings made after a hearing." Accordingly, the order compelling disclosure will likely be reduced to writing and denominated an "order" as a matter of course. However, a party seeking to appeal an adverse ruling should make sure that this is the case by submitting an order to the court for signature, if none has been issued, so that an appeal may be taken.
An appeal as of right "must be taken within thirty days after service by a party upon the appellant of a copy of the judgment or order appealed from and written notice of its entry . . . ." CPLR § 5513(a). Usually the prevailing party on the motion will serve the judgment and notice of entry (a one-page document attaching the judgment or order, which is filed with the clerk of the issuing court) on the losing party. However, where the party appealing the judgment or order (usually the losing party) has served it and the notice of entry on his or her adversaries, the thirty days in which to appeal runs from the time of this service. Id. Additional time to file a notice of appeal is allowed where the judgment and notice of entry are served by mail or overnight delivery rather than by hand. See CPLR § 5513(d).
Filing a notice of appeal (i.e., "taking" an appeal) should not be confused with "perfecting" it. Taking an appeal is a relatively simple process which usually involves only filing and serving the notice of appeal. (Some appellate courts also require that a brief statement of the issues also be filed along with the notice, and the particular court's rules should be consulted in this regard.) The notice of appeal is a straightforward document which contains the case caption, names of the party appealing, the judgment or order (or part thereof) being appealed and specifies the court to which the appeal is taken. See CPLR § 5515(1). To be safe, the appealing party should appeal every part of the order (i.e., "every part thereof") in order to avoid waiving the right to appeal any discrete part of it. See City of Mt. Vernon v. Mt. Vernon Housing Auth., 235 A.D.2d 516, 652 N.Y.S.2d 771 (2d Dep't 1997) (denying leave to amend notice of appeal to include appeal of parts of underlying order not initially appealed from). Perfecting the appeal, on the other hand, consists of, among other things, securing the transcripts from the proceeding (if any), drawing the record, writing briefs and getting the required papers printed, served and submitted to the court, all of which are governed by their own rules. However, the first step in the appeal process, once the notice of entry has been filed and served, is to file and serve the notice of appeal, which should be done sooner rather than later in order to avoid waiving the right to an appeal due to a failure to timely serve the notice of appeal.
As set forth above, New York’s highest court, the Court of Appeals, has held that non-parties in criminal cases have no direct right to appeal the denial of a motion to quash a subpoena, where the order was issued after the filing of the accusatory instrument in a criminal proceeding. People v. Juarez, 31 N.Y.3d 1186, 1190-91 (N.Y. 2018). However, the Court of Appeals did acknowledge that it was not deciding whether an appeal may be brought by commencing a proceeding under CPLR article 78 (which is used for challenging administrative actions by a body or officer in New York State), suggesting it may be possible to do so. Id. at n.5.
Denial of a motion to quash or grant of a motion to compel discovery are interlocutory orders because they do not resolve all or part of the claims in the underlying proceeding. Typically interlocutory orders are not immediately appealable, see Godley Auction Co. v. Myers, 40 N.C. App. 570, 253 S.E.2d 362 (N.C. 1979) and Benfield v. Benfield, 89 N.C. App. 415, 418, 366 S.E.2d 500, 502 (N.C. 1988), unless they affect a substantial right. See N.C. Gen. Stat. § 1-277(a); N.C. Gen. Stat. § 7A-27(a)(3). It is well-established that an interlocutory order is appealable under the "substantial right" exception where (i) the right itself is substantial, and (ii) the order deprives the appellant of a substantial right which will be lost if the order is not reviewed before final judgment. See, e.g., J & B Slurry Seal Co. v. Mid-South Aviation, Inc., 88 N.C. App. 1, 5–6, 362 S.E.2d 812, 815 (N.C. App. 1987).
There is no reported appellate decision holding that an order requiring a journalist to produce newsgathering information affects a substantial right, but there should be little doubt that it does. First, if journalists are forced to comply with an order requiring them to produce their privileged newgathering information, their constitutional and statutory privilege protecting them from releasing such information will be lost if the disclosure order is not reviewed before final judgment in the underlying proceeding. Second, the North Carolina Supreme Court has held that when a party asserts a statutory privilege which directly relates to the matter to be disclosed under an interlocutory discovery order, and the assertion of such privilege is not otherwise frivolous or insubstantial, the challenged order affects a "substantial right" for appellate purposes. Sharpe v. Worland, 351 N.C. 159, 522 S.E.2d 577 (N.C. 1999), on remand 137 N.C. App. 82, 527 S.E.2d 75 (N.C. App. 2000) (finding right to appeal where hospital asserted statutory privilege as basis for not producing documents). Journalists, of course, have a statutory privilege against being forced to produce information obtained in the court of newsgathering. N.C. Gen. Stat. § 8-53.11.
When a journalist is held in contempt for failing to comply with a discovery order, the order is immediately appealable for the purpose of testing the validity both of the original discovery order and the contempt order. See, e.g., Willis v. Duke Power Co., 291 N.C. 19, 30, 229 S.E.2d 191, 198 (N.C. 1976) (litigant held in contempt); Wilson v. Wilson, 124 N.C. App. 371, 374–75, 477 S.E.2d 254, 256 (N.C. App. 1996) (litigant held in contempt); Mack v. Moore, 91 N.C. App. 478, 480, 372 S.E.2d 314, 316 (N.C. App. 1988) (discovery order not immediately appealable due to lack of enforcement sanctions); B.B. Walker & Hrub Corp. v. Liberty Mut. Ins. Co., 84 N.C. App. 552, 554–55, 353 S.E.2d 425, 426 (N.C. App. 1987) (discovery order immediately appealable when enforced by sanctions under Rule 37(b)).
An appeal must be filed within 30 days after entry of the order being appealed. See N.C. App. R. 3(c). The announcement of an order in open court begins the time when the appeal can be filed, but the 30 day time limitation only begins after the written order has been entered. See Abels v. Renfro Corp., 126 N.C. App. 800, 803, 486 S.E.2d 735, 738 (N.C. App. 1997) review denied, 347 N.C. 263, 493 S.E.2d 450 (N.C. 1997).
In the event that an order does not affect a "substantial right" and, therefore, is not immediately appealable, a party can seek review in the appellate courts by filing a petition for writ of certiorari. See N.C. App. R. 21; N.C. Gen. Stat. § 7A-32. There is no specific time in which such a petition must be filed, but it must be filed "without unreasonable delay." N.C. App. R. 21(c). In general, certiorari is appropriate "where a decision of the principal question presented would expedite the administration of justice, or where the case involves a legal issue of public importance." Bardolph v. Arnold, 112 N.C. App. 190, 435 S.E.2d 109 (1993) (quoting Flaherty v. Hunt, 82 N.C. App. 112, 345 S.E.2d 426 (N.C. App. 1986)); see also Industrotech Constructors, Inc. v. Duke Univ., 67 N.C. App. 741, 314 S.E.2d 272 (N.C. App. 1984) (allowing certiorari with respect to discovery order requiring production of confidential arbitration transcripts).
Orders dealing with subpoena compliance are considered discovery orders. Generally, such orders are interlocutory and not appealable. Accordingly, a party appealing such an order must file a petition for supervisory writ requesting the North Dakota Supreme Court to exercise its rights of original jurisdiction.
An order denying a motion to quash a subpoena issued to a non-party is a final appealable order. Future Communications, Inc. v. Hightower, Franklin App. No. 01AP-1175, 2002-Ohio-2245 (10th Dist.) ("Appellee argues that appellant can only appeal from an order finding him in contempt. We disagree. As noted above, under the applicable statute, any order granting or denying a provisional remedy is a final appealable order if the statutory requirements are met. Furthermore, one should not have to incur the penalties of contempt in order to pursue an appeal.").
There is no statutory or case law addressing this issue. However, by analogy, a trial court’s order denying a motion to quash and compelling the disclosure of information may be the proper subject of mandamus review. See, e.g., Assisted Living Concepts, Inc. v. Fellows, 244 Or. App. 475, 481 n.4 (holding denial of motion to quash subpoena and grant of motion to compel production was not immediately appealable under ORS 19.205(2), but noting that review could be permissible under mandamus procedure or in review of contempt); Brumwell v. Premo, 355 Or. 543, 551 (2014) (mandamus remedy appropriate to protect against disclosure of privileged communications); cf. State ex rel. Meyers v. Howell, 86 Or. App. 570 (1987) (reviewing contempt order against newspaper for refusing, on the basis of the media shield law, to produce unpublished photographs).
The media can appeal immediately, as a matter of right, from a trial court order denying a motion to quash under the collateral order doctrine. The collateral order doctrine applies where (1) the order to be appealed is separable and collateral to the main case; (2) the order impacts rights that are too important to be denied review; and (3) the question presented is such that if review is postponed until final judgment in the case, the claim will be irreparably lost. Pa. R. App. P. 313; Pugar v. Greco, 394 A.2d 542, 545 (Pa. 1978). The collateral order doctrine is particularly applicable to privilege disputes. See, e.g., Commonwealth v. Flor, 136 A.3d 150, 155 (Pa. 2016) (“As we established in Harris, discovery orders rejecting claims of privilege and requiring disclosure constitute collateral orders that are immediately appealable under Rule 313.”); Ben v. Schwartz, 729 A.2d 547, 550 (Pa. 1999) (allowing appeal from order requiring disclosure of files subject to executive and statutory privilege); Hutchison v. Luddy, 606 A.2d 905, 906 (Pa. Super. 1992) (allowing appeal from order requiring production of documents involving canon law privilege); Commonwealth v. Miller, 593 A.2d 1308, 1309-10 (Pa. Super. 1991) (allowing appeal from order requiring production of statutorily privileged documents); Commonwealth v. Williams, 86 A.3d 771, 780 (Pa. 2014) (“This Court has moved towards a category-wide exception to discovery orders that are alleged to violate a protected privilege, such as the attorney-client privilege or the work product doctrine.”). In Castellani v. Scranton Times, L.P., 956 A.2d 937, 943 (Pa. 2008), the Pennsylvania Supreme Court held that an order in a defamation case compelling a media defendant to disclose information subject to the Pennsylvania Shield Law was immediately appealable as a collateral order.
In grand jury proceedings, however, the collateral order doctrine is unavailable, thereby forcing the subpoenaed party to suffer contempt in order to be able to appeal. As the Supreme Court explained in In re the Twenty-Fourth Statewide Investigating Grand Jury, “the determination of whether a particular order is separable and collateral from a grand jury proceeding is a difficult, if not impossible, undertaking” because grand jury secrecy leaves the court “with no record to use in determining whether or not the contested order is collateral to the proceeding.” 907 A.2d 505, 510 (Pa. 2006) (citing In re Grand Jury Subpoena, 190 F.3d 375, 384 (5th Cir. 1999)). As a result, “[o]ne seeking to challenge the propriety of a grand jury subpoena must generally choose between complying with the subpoena and litigating the validity through contempt proceedings.” Id. In that case, the court quashed an appeal by a newspaper that had received a grand jury subpoena because it had chosen to provide the subpoenaed material to the prosecutor in a “compromise arrangement” approved by the judge supervising the grand jury to gain a stay pending appeal. Id. at 510-11.
If necessary, the media may also petition the appellate court for permission to appeal under the rules governing interlocutory orders if (1) an appeal is not allowed under the collateral order doctrine, and (2) the trial court certifies the question for interlocutory appeal. 42 Pa. Cons. Stat. § 702; Pa. R. App. P. 1301 et seq. Such an appeal, however by its very nature, is not a matter of right. Certification depends on whether the order at issue “involves a controlling question of law as to which there is a substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the matter.” In re the Twenty-Fourth Statewide Investigating Grand Jury, 907 A.2d at 510 (citing § 702(b)). In that case, the Pennsylvania Supreme Court ruled that the denial of certification by the judge supervising the grand jury was not an abuse of discretion because, with respect to one subpoena issued to the newspaper, the newspaper was held to be in contempt of court so it could pursue “the traditional avenue for securing appellate review,” and, with respect to the other subpoena, it had no grounds for appeal, as it was not in contempt of court. Id.
Interlocutory appeals and appeals as of right generally must be filed within 30 days of the entry of the order appealed. Pa. R. App. P. 341(c)(1), 903(a), 1311(b).
A petition for review of an order in connection with an investigating grand jury must be filed within 10 days of the order. See Pa. R. App. P. 1512(b)(3), 1611(a)(3).
The Supreme Court of Rhode Island will take appeals as of right only from final judgments. Jennings v. Nationwide Ins. Co., 669 A.2d 534, 535 (R.I. 1996). The appropriate route to obtain review of an interlocutory order is by petition for certiorari in accordance with Rule 13 of the Supreme Court Rules of Appellate Procedure. Rule 13 of the Supreme Court Rules of Civil Procedure would govern an appeal from any interlocutory decision.
Since the shield law has application only when the person or entity asserting the privilege is not a party to the proceeding a denial of the motion to quash or for a protective order would be immediately appealable. If the order is in a civil court the time for appeal is 30 days from the date of the order denying the motion. In criminal cases the notice of appeal must be filed within 10 days of the order. No distinction should be drawn with respect to the claim of privilege based on whether the subpoena is for discovery or trial.
Accelerated appeal is appropriate where the reporter has been cited for contempt for failing to comply with an order following assertion of the privilege. In all cases where the reporter has been found to be in contempt, move to stay the coercive action pending appeal.
Interlocutory appeals are generally permitted of decisions under the shield law. The statute provides: "Any order of the trial court may be appealed to the court of appeals in the same manner as other civil cases. The court of appeals shall make an independent determination of the applicability of the standards . . . to the facts in the record and shall not accord a presumption of correctness to the trial court's findings." Tenn. Code Ann. § 24-1-208(c)(3)(A).
Interlocutory appeals are available under Tennessee Rules of Appellate Procedure 9 and 10.
Significantly, the statute also provides that "[t]he execution of or any proceeding to enforce a judgment divesting the protection of this section shall be stayed pending appeal . . . and the appeal shall be expedited upon the docket of the court of appeals upon the application of either party." Tenn. Code Ann. § 24-1-208(c)(3)(B).
Interlocutory appeals are not available from an order denying a motion to quash or an order of contempt. However, a person may seek appellate review of the denial of a motion to quash by way of an original proceeding for mandamus or habeas corpus relief – initiated in the appropriate court of appeals. A petition for writ of mandamus is the appropriate procedure where the trial court's order did not involve confinement as a remedy for noncompliance. Where the order involves confinement, the appropriate procedure is a writ of habeas corpus. See In re Rivas-Luna, 528 S.W.3d 167, 169 (Tex. App.—El Paso 2017, orig. proceeding); Ex parte Hughey, 932 S.W.2d 308, 310-11 (Tex. App.—Tyler 1996, orig. proceeding). The losing party will bear the burden of showing that the contempt order is void. In re Lowry, 511 S.W.3d 256, 256 (Tex. App.—Dallas 2015, orig. proceeding). Both mandamus and habeas corpus are extraordinary writs that should be issued only when the trial court has clearly abused its discretion and there is no adequate remedy by normal appeal.
Interlocutory appeals are permissible under Vermont law when a controlling question of law is presented, there is a substantial ground for a difference of opinion, and an immediate appeal may materially advance the resolution of the litigation. State v. Pelican, 154 Vt. 496, 501, 580 A.2d 942 (Vt. 1990); V.R.A.P. 5(b) and 5.1. The Vermont Supreme Court granted interlocutory review of the superior court’s decision to quash a subpoena to a reporter in Spooner v. Town of Topsham, 2007 VT 98, ¶ 4, 937 A.2d 641 (Vt. 2007).
Washington allows for discretionary review under certain circumstances. RAP 2.3. Review is commenced by a notice filed within 30 days of the trial court decision. RAP 5.2(b). The content of the notice is described in RAP 5.3. A party seeking review must file a motion for discretionary review within 15 days after filing the notice of discretionary review. RAP 6.2(b).
Although technically there is no right to an interlocutory appeal, if a motion to quash a subpoena is denied, the reporter may file a Petition for Writ of Prohibition or a Petition for Writ of Mandamus directly in the West Virginia Supreme Court of Appeals. Although such Petitions are deemed "extraordinary" procedures for relief, the state Supreme Court historically has allowed such Petitions in cases involving a reporter's privilege because of the First Amendment constitutional implications. The acceptance of such a Petition acts as an automatic stay of the lower court's ruling. Another procedural mechanism that may be utilized, especially considering the dearth of caselaw in West Virginia concerning the reporter's privilege, is a request to the trial court to "certify" the issue to the state Supreme Court.
Although no Wisconsin court has directly addressed the issue as it relates to the reporter's privilege, the denial of a motion to quash is a final judgment as it relates to a non-party reporter and may be appealed as of right. See Wis. Stat. § 808.03(1). In Wisconsin, the right to appeal is not restricted to named parties. Instead, any "person" may file a notice of appeal to a final judgment or final order. See Wis. Stat. § 809.01; id. § 809.10.
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.