1. Relevance of material to case at bar
In United States v. Fountain View Apartments, Inc., 2009 WL 1905046, *2 (M.D. Fla. July 1, 2009), the court held that the reporter’s notes, drafts of scripts, and what the editor and reporter thought of interviewees’ reactions were not relevant to the case, and therefore were protected.
Under both the civil and criminal tests, the requested information must be relevant to the moving party’s claim for the court to compel its disclosure. Under the civil standard, the information must be relevant to a party’s claim or defense proportional to the needs of the case. Bruno & Stillman v. Globe Newspaper Co., 633 F.2d 583, 597 (1st Cir. 1980). Under the criminal standard, there must be a “substantial likelihood” that the information would be relevant and admissible at trial. United States v. ShayI”), 21 Media L. Rep. 1415, 1416 (D. Mass. 1993). In In re Request from United Kingdom, 718 F.3d 13, 23-24 (1st Cir. 2013), the court followed Branzburg, and determined that materials relevant to the subpoena be produced under an ordinary standard of relevance and not under a standard of direct relevance to the criminal investigation.
The relevance tests differ depending on whether the material is confidential or non-confidential. One seeking disclosure of confidential materials must demonstrate by clear and convincing evidence that that the materials sought are both "highly material and relevant" and "necessary or critical to the maintenance of the claim." Burke, 700 F.2d at 76-77. One seeking disclosure of non-confidential materials must establish that the materials are "of likely relevance" to "a significant issue in the case." Gonzales v. National Broadcasting Co., 194 F.3d at 36.
Highly material and relevant
The first element of the test to overcome a qualified privilege for confidential information is that the party seeking the information must show that the information is "highly material and relevant" to the ultimate issue. Burke, 700 F.2d at 76-77. To satisfy the relevancy test, it is necessary to make a "clear and specific showing" of materiality. Id. In Burke, defendants in a point shaving scandal sought research documents from a reporter who wrote an article about the scandal in Sports Illustrated. The court ruled that the documents were highly material and relevant because they may have contained information that contradicted the trial testimony of a government witness. Id. at 77. (For other examples of cases in which confidential information was found to be "highly material and relevant," see Umhey v. County of Orange, 957 F. Supp. 525 (S.D.N.Y. 1997) (motion to quash denied); Pellegrino v. New York Racing Ass'n, Inc., No. 96-CV-2315 (TCP) (E.D.N.Y. Aug. 22, 1996, modified Sept. 18, 1996) (motion to quash denied); Lipinski v. Skinner, 781 F. Supp. 131 (N.D.N.Y. 1991) (motion to quash denied).) The other two prongs of the privilege were not met in this case. (For more discussion on Burke see infra Sections I and III.C.1)
In United States ex rel. Vuitton Et Fils S.A. v. Karen Bags, Inc, 600 F. Supp. 667 (S.D.N.Y. 1985), the court found that the information sought was not highly material. In Vuitton, the defendant had been found guilty of willfully violating an injunction forbidding him to sell counterfeit trademarked goods. Following his conviction, he sought to subpoena outtakes of a CBS News investigation about the counterfeiting scandal in an attempt to find evidence of prosecutorial misconduct. The court held that these outtakes were not highly material because it was merely a hunch or sheer speculation that these outtakes would provide the helpful information the defendant sought. Id. at 671.
Necessary/Critical to the Maintenance of the Claim
The second element of the test to overcome a qualified privilege for confidential information is that the information must be "necessary or critical to the maintenance of the claim." Burke, 700 F.2d at 76-77. Courts in the Second Circuit have stated that for the information or testimony to be necessary or critical, the claim must "virtually rise or fall with the admission or exclusion" of the requested information. In re Waldholz, 1996 U.S. Dist. LEXIS 9648, at *11 (S.D.N.Y. July 11, 1996) (quoting In re NBC (Krase v. Graco), 79 F.3d 346, 351 (2d Cir. 1996)). Courts have also noted that when information sought from the reporter would be cumulative of other evidence, it cannot be necessary or critical to a claim. Burke, 700 F.2d at 78; In re Application of Behar (Church of Scientology v. IRS), 779 F. Supp. 273, 275 (S.D.N.Y. 1991). Uniqueness need not be demonstrated. In re Natural Gas Commodities Litig., 235 F.R.D. 241 (S.D.N.Y. 2006) ("necessary or critical" does not require "uniqueness").
In Lipinski v. Skinner, 781 F. Supp. 131 (N.D.N.Y. 1991) (motion to quash denied), testimony from editors of a newspaper was considered necessary and critical to plaintiff's claim that police had given confidential, sensitive information about him to a newspaper. The editors could testify about who in the police force had made the initial disclosure to the paper. (For a more detailed discussion of Lipinski, see infra Section IV.A.1.b.)
In Umhey v. County of Orange, 957 F. Supp. 525 (S.D.N.Y. 1997) (motion to quash denied), plaintiff brought an action for emotional distress, and defendant subpoenaed a third-party reporter to determine whether the plaintiff -- who sued in part because of disclosure of confidential information to the media -- was herself the source of the confidential information. The court held that the information sought was necessary and critical to the defense. Also, the court ordered the reporter not to answer questions about sources other than the plaintiff.
In Pellegrino v. New York Racing Ass'n, Inc., No. 96-CV-2315 (TCP) (E.D.N.Y. Aug. 22, 1996, modified Sept. 18, 1996) (motion to quash denied), plaintiff sought to prove that the NYRA was responsible for leaking to a journalist information that plaintiff had been fired for sexual harassment. Plaintiff subpoenaed the journalist to disclose which of NYRA's employees had told him that plaintiff was fired for sexual harassment. The court held that the identification of the source was critical and necessary for the maintenance of the claim because plaintiff had to show that the source was authorized to speak on behalf of NYRA in order to prevail. In contrast, subpoenas have been quashed where the information sought was found not "necessary or critical to the maintenance of the claim. See United States v. Burke, 700 F.2d 70 (2d. Cir), cert. denied, 464 U.S. 816 (1983); In re Petroleum Products Antitrust Litig., 680 F.2d 5 (2d Cir. 1982); Baker v. F & F Investment, 470 F.2d 778 (2d Cir.), aff'g 339 F. Supp. 942 (S.D.N.Y. 1972), cert. denied, 411 U.S. 966 (1973); Sommer v. PMEC Assoc. & Co., 1991 U.S. Dist. LEXIS 5697 (S.D.N.Y. May 1, 1991); United States ex rel. Vuitton Et Fils S.A. v. Karen Bags, Inc, 600 F. Supp. 667 (S.D.N.Y. 1985).
For instance, in Sommer v. PMEC Assoc. & Co., defendants counter-claimed that plaintiff, Sommer, who contested the conversion to cooperative ownership of an apartment complex, had a vendetta against the owners of the complex. Defendants stated that one way in which Sommer carried out his vendetta was by feeding false and misleading statements to Newsday about the owners. Defendants thus subpoenaed Newsday for all research and other materials regarding stories on the conversion of North Shore Towers. The court held that this information from Newsday was not necessary and critical because:
Sommer's alleged feeding of false and misleading statements to Newsday is only one of sixteen courses of conduct which defendants allege Sommer undertook in furtherance of his vendetta. Given that defendants have already been provided with all of Newsday's published reports concerning the conversion, and given that defendants may investigate fifteen other avenues in support of their allegations of a vendetta, the Court concludes that defendants' claim will not virtually rise or fall upon the admission or exclusion of the material sought here from Newsday.
Sommer, 1991 U.S. Dist. LEXIS 5697, at *8.
Of Likely Relevance
The first element of the test to overcome a qualified privilege for non-confidential information is that the party seeking disclosure must demonstrate that the information "is of likely relevance." Gonzales v. National Broadcasting Co., 194 F.3d 29, 36 (2d Cir. 1998). In Gonzales, the court held that outtakes of allegedly improper traffic stops by the defendant, a Louisiana sheriff, were more than likely to be relevant because "they may assist the trier of fact in assessing whether [the sheriff] had probable cause to stop the NBC vehicle and might help determine whether he engaged in a pattern or practice of stopping vehicles without probable cause, as the Plaintiffs allege." Id. The motion to quash in Gonzales was denied. (For more discussion on Gonzales see infra Sections I and III.C.1.)
Before Gonzales, the court applied the more stringent "highly material and relevant" test to cases involving non-confidential information. Where courts deemed non-confidential information "highly material and relevant" the material obviously would also pass muster under the less stringent Gonzales standard of relevance. In re Ramaekers, 33 F. Supp. 2d 312 (S.D.N.Y. 1999) (motion to quash denied); In re Waldholz, 1996 U.S. Dist. LEXIS 9648 (S.D.N.Y. July 11, 1996) (motion to quash denied); Aequitron Med., Inc. v. CBS, Inc., 1995 U.S. Dist. Lexis 9485 (S.D.N.Y. 1995) (motion to quash denied).
For instance, in In re Waldholz, a securities class action, shareholders contended that officers and directors of pharmaceutical companies made false and misleading statements about the efficacy and safety of an AIDS drug. The plaintiffs subpoenaed Waldholz, a Wall Street Journal reporter, to have him confirm that a board member/defendant, Smith, made the statements attributed to him in Waldholz's article. The court ruled that this information was highly material and directly relevant because "(1) the Class predicates defendants' liability in part directly on the statement by Smith reported in Waldholz's article; and (2) Smith, in his deposition, disputed the accuracy of Waldholz's reporting of Smith's statement." In re Waldholz, 1996 U.S. Dist. LEXIS 9648, at *8 (S.D.N.Y. July 11, 1996). The motion to quash was denied.
Importantly, the district court is not required to undertake the burden of separating relevant information from non-relevant information without assistance from the party requesting that non-relevant information be limited. Chevron Corp. v. Berlinger, 629 F.3d 297 (2d Cir. 2011).
Involves a Significant Issue in the Case
The second element of the test to overcome a qualified privilege for non-confidential information is that the party seeking disclosure must demonstrate that the information involves "a significant issue in the case." Gonzales v. National Broadcasting Co., 194 F.3d at 36. In Gonzales, the court held that the information pertained to a significant issue in the case because the outtakes at issue portrayed the deputy sheriff stopping vehicles, and the claim revolved around whether the officer had stopped vehicles without probable cause.
Questions of witness credibility are not necessarily significant issues in a case sufficient to overcome the qualified privilege. In re McCray, Richardson, Santana, Wise, and Salaam Litig., 928 F. Supp. 2d 748 (S.D.N.Y. 2013), aff'd sub nom. In re McCray, Richardson, Santana, Wise, Salaam Litig., 991 F. Supp. 2d 464 (S.D.N.Y. 2013) (“impeachment material is ordinarily not critical or necessary to the maintenance or defense of a claim”). In In re McCray, defendants subpoenaed outtake footage from a documentary film entitled The Central Park Five, which non-party Florentine Films contested under New York’s Shield Law. There are some pre-Gonzales cases in which non-confidential information was found to meet the even higher standard of being "necessary and critical to the claim." See In re Ramaekers, 33 F. Supp. 2d 312 (S.D.N.Y. 1999) (motion to quash denied); In re Waldholz, 1996 U.S. Dist. LEXIS 9648 (S.D.N.Y. July 11, 1996) (motion to quash denied); Aequitron Med., Inc. v. CBS, Inc., 1995 U.S. Dist. Lexis 9485 (S.D.N.Y. 1995) (motion to quash denied). For example, in Aequitron Med., Inc. v. CBS, Inc., plaintiffs sued CBS for trade libel and defamation. CBS aired a segment on "CBS This Morning" concerning sudden infant death syndrome (SIDS). During this segment, a doctor ran a test of plaintiff's monitor in his laboratory on a plastic doll and the monitor did not emit any signals, indicating no heartbeat. The doctor explained on the air that the monitor was detecting small electrical signals that caused the device to not sound an alarm. The CBS reporter stated that "if that occurs on a real baby that stops breathing, the monitor may not sound, and the baby could die." Plaintiff alleged that CBS deceived the audience by not revealing that the SIDS monitor was hooked up to an electrical device that simulated normal impulses given by the human body, which, it was argued, caused the monitor to malfunction.
The Aequitron court held that the discovery requested by plaintiffs, which included broadcast outtakes of the show, was necessary and critical to their claim. Because one of the elements of their libel claim was that CBS had knowledge that the broadcast was deceptive and chose to air it anyway, it was necessary that plaintiffs have access to the outtakes and other materials to be able to prove the knowledge element. Aequitron Med., Inc. v. CBS, Inc., 1995 U.S. Dist. Lexis 9485, at *9 (S.D.N.Y. 1995).
In the Third Circuit, the proponent of a subpoena to a reporter must demonstrate not merely that the information sought is relevant to the party's claims or defenses, but that the information sought from a reporter is "crucial" to the claim or defense. Criden, 633 F.2d at 358-59. Courts have not hesitated to quash subpoenas where the proponent could not demonstrate that the information sought from the reporter was "crucial" to the case at bar, notwithstanding that the information in question clearly was "relevant." See e.g., Nat'l Talent Assocs., Inc., 1997 WL 829176, at *4 (information sought, "while relevant," was "not crucial"); accord McBride, 2011 WL 8072752, at *1 n.1; Kohn, Nast & Graf, P.C., 853 F. Supp. at 152; Parsons, 778 F. Supp. at 218-19; Vastola, 685 F. Supp. at 924-25; but see In re Grand Jury Empanelled Feb. 5, 1999, 99 F. Supp. 2d at 501 (in grand jury context, at least where identity of source had already been disclosed through other means, government was not required to demonstrate that information was "crucial" to its investigation, but merely that it was "necessary for the grand jury's purposes").
By the same token, however, proponents of some subpoenas can meet their burden on this element in some circumstance. See, e.g., Criden, 633 F.2d at 359 (where reporter's testimony could prove or disprove element of underlying defense and reporter was only available avenue to information, party issuing subpoena had demonstrated crucial need, particularly since party was not seeking disclosure of source's identity); Smith, 516 F. App’x at 198 (finding source’s identity to be “crucial” where it was required to establish plaintiff’s claim); In re Subpoena to Barnard, 1999 WL 38269, at *3 (where information sought concerned statements in published article and statements were admission of wrongdoing by defendant in underlying civil action, plaintiff who issued subpoena to reporter had demonstrated that testimony concerning statements was "crucial"); In re Subpoena of Maykuth, 2006 WL 724241, at *3 (observing that information sought from reporter strikes at "very heart" of plaintiffs' case).
The Fourth Circuit’s LaRouche test in civil cases requires a showing that the information sought is “relevant” to the case. LaRouche, 780 F.2d at 1139. This is apparently a looser requirement than in earlier Fourth Circuit conceptions of the privilege, where the moving party was required to show that the information was “crucial to the case” or went “to the heart of the case.” Miller v. Mecklenburg Cty., 602 F. Supp. 675, 679 (W.D.N.C. 1985), aff’d 813 F.2d 402 (4th Cir. 1986), cert. denied, 479 U.S. 1100 (1987), further opinion at 12 Media L. Rep. 1405 (W.D.N.C. 1985). Nevertheless, the relevancy requirement retains some bite. In particular, courts will not force disclosure of information that relates to a case if it is not relevant to the showings required under particular claims. For example, in Penland v. Long, plaintiffs brought a defamation claim against the town sheriff based on a press release that did not mention plaintiffs by name. The district court upheld two reporters’ assertions of privilege concerning their notes from interviews with the sheriff about the press release. The court deemed their notes of minimal relevance because it had already been established that the sheriff was referring to plaintiffs in the release. Penland, 922 F. Supp. 1080, 1084, 24 Media L. Rep. 1410 (W.D.N.C. 1995). Likewise, in Church of Scientology Int’l v. Daniels, because the defendant was willing to stipulate to the accuracy of his allegedly libelous statement, the Fourth Circuit deemed of “questionable” relevance editors’ notes on the meeting at which the statement was made. Church of Scientology, 992 F.2d 1329, 1335, 21 Media L. Rep. 1426 (4th Cir. 1993), cert. denied, 510 U.S. 869 (1993).
In both Miller and Selcraig, the Fifth Circuit held that, when the privilege applies, a party must provide substantial evidence that the sought-after information is relevant to overcome the privilege. Miller v. Transamerican Press, Inc., 628 F.2d 932, 932 (5th Cir. 1980); In re Selcraig, 705 F.2d 789, 792 (5th Cir. 1983). Regardless of whether the privilege exists in a particular case, however, the subpoenaing party always bears the burden of demonstrating that the material sought is relevant. United States v. Arditti, 955 F.2d 331, 345 (5th Cir. 1992). Subpoenaed material is considered relevant if it pertains to the charges or claims at issue in the case. Id. In Arditti, the court cited United States v. Nixon to illustrate how one might meet the relevance burden. In Nixon, the prosecutor was able to subpoena the President's audio tapes of conversations because he demonstrated, through the use of sworn testimony of participants in the conversations, that they might contain information relevant to the charges. Arditti, 955 F.2d at 345 (citing United States v. Nixon, 418 U.S. 683, 697-702 (1974)).
To overcome the First Amendment reporter's privilege, the subpoenaed information must go to "the heart" of the case, in other words, it must be centrally relevant to an important legal and factual issue. Southwell v. Southern Poverty Law Ctr., 949 F.Supp. 1303 (W.D. Mich. 1996); see In re Grand Jury Proceedings, 810 F.2d 580 (6th Cir. 1987).
A subpoenaing party seeking to compel the disclosure of information from a journalist gathered in the course of newsgathering must show that the evidence is highly probative of issues relevant to the case and that it does not have the evidence and it otherwise unavailable to them. Bond v. Utreras, No. 04 C 2617, 2006 WL 1806387 at *6, (N.D. Ill. June 27, 2006). In Patterson v. Burge, No. 03 C 4433, 2005 WL 43240 (N.D. Ill. Jan. 6, 2005), the court held the party enforcing a subpoena must showing materiality and that it does not have the information sought and it is not available from other sources. Id. at *2 - *3.
The subpoenaing party must show that the material sought is "highly relevant" and be specific in its demonstration. "Highly relevant" means that the information sought goes to the heart or is crucial to the claims made by the discovering party. See Neal v. City of Harvey, Ill., 173 F.R.D. 231, 233-34 (N.D. Ill. 1993). Additionally, it is insufficient to merely allege potential relevance. Rather, there must be a showing of actual relevance. Id.; see e.g. U.S. v. Jennings, No. 97 CR 765, 1999 WL 438984 (N.D. Ill. June 21, 1999) (finding writer's non-confidential information surrounding interview of defendant's co-defendant discoverable where the information sought was relevant to establishing co-defendant's motive to testify); Warnell v. Ford Motor Co., 183 F.R.D. 624 (N.D. Ill. 1998) (qualified reporter's privilege would not prohibit the discovery of NBC videotape where videotape was relevant to plaintiffs' claims); compare U.S. v. Lloyd, 71 F.3d 1256, 1268-69 (7th Cir. 1995) (finding that newspaper article in which an unnamed officer stated a "lottery" existed on how long defendant would live was collateral to defendant's defense of police bias when defendant could not establish that the arresting officer was the officer quoted in the article). U.S. v. Lopez, No. 86 CR 513, 1987 WL 26051 (N.D. Ill. Nov. 30, 1987) (criminal defendant denied outtakes of a television interview when there was no showing of why the outtakes were relevant in helping the defendant explain the previously aired interview).
Under the Fridell balancing test set forth above, the material sought must be "critical," and "highly material and relevant." 165 F.R.D. 513, 516 (D. Minn. 1995). The Continental Cablevision formulation of the test (adopted from a 1980 Third Circuit case) requires "that the information sought is crucial to the claim." 583 F. Supp. 427, 433 (E.D. Mo. 1984). Nelle described the showing as “necessary to the claim or defense” meaning “more than merely useful . . . the need for the evidence is substantial in the sense of going to the heart of the litigant’s case.” 2017 WL 7049237, *2 (S.D. Iowa Dec. 20, 2017).
In Fridell, the court held that the Plaintiff who was seeking to discover a reporter's notes had not "clearly and specifically demonstrated the materiality of the reporter's notes" to her case. 165 F.R.D. at 516. It also held that the notes, which Plaintiff asserted were relevant her claim of retaliatory discharge, were not critical to that claim because it was "but one of several other derivative issues predicated on the sexual harassment claim." Id. The court construed the sexual harassment claim as the "heart" of the case. Id.
The court in Grand Jury Subpoena ABC found that unaired material from a television interview would be discoverable because of the "reasonable possibility" that it may contain relevant statements. 947 F. Supp. 1314, 1321 (E.D. Ark. 1996) The court explicitly limited this inquiry to the context of a grand jury investigation, where "'some exploration or fishing necessarily is inherent and entitled to exist.'" Id. at 1320–21.
To overcome a valid assertion of the reporter’s privilege, the subpoenaing party must show that the requested material is clearly relevant to an important issue in the case. See Shoen II, 48 F.3d at 416 (reversing a contempt citation against a media defendant who refused to produce materials pursuant to a discovery request in the underlying defamation lawsuit; plaintiff failed to establish clear relevance to an important issue in the case since the majority of the alleged libels were made before the interviews of the defendant commenced). The Ninth Circuit has held that “[t]he party seeking disclosure must show actual relevance; a showing of potential relevance will not suffice.” Id.; see also, e.g., Jimenez v. City of Chicago, 733 F. Supp. 2d. 1268, 1273 (W.D. Wash. 2010) (rejecting subpoena when documents sought were “merely collateral to Plaintiff’s lawsuit”) (Jimenez I); Jimenez v. City of Chicago, No. C 10-459MJP, 2010 WL 4678709, at *2 (W.D. Wash. Nov. 12, 2010) (rejecting subpoenaing party’s “attempt to persuade [the court] that they need only satisfy a traditional definition of ‘relevance’ (i.e., evidence that has ‘any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence’)”) (Jimenez II); Planned Parenthood Fed'n of Am., Inc. v. Ctr. for Med. Progress, 2018 WL 2441518, at *15 (N.D. Cal. May 31, 2018) ("Even if the information sought contains evidence relevant to a claim, if the evidence would not, without more, establish the claim, actual relevance does not exist."); Wright v. Fred Hutchinson Cancer Research Ctr., 206 F.R.D. 679, 681 (W.D. Wash. 2002) (denying the defendants’ motion to compel in part because the defendants did not exhaust all reasonable alternative sources). A court has also required a party to “clearly identify” the requested material in order to determine whether it is relevant to the case. Arellano v. Haskins, 2019 WL 5693507, at *2 (E.D. Cal. Nov. 4, 2019) (rejecting plaintiff’s subpoena when he requested unpublished footage from a local broadcaster that was “related to the incident” without identifying what specific parts of the police chase at issue he believed the broadcaster recorded).
Though the relevance inquiry is rigorous, there is no presumptive bar to the scope of a subpoena – even a wide range of records related to a journalistic enterprise can be considered relevant when it has been alleged that the journalistic enterprise itself engaged in widespread activity carrying potential criminal penalties. See Planned Parenthood Fed'n of Am., Inc. v. Ctr. for Med. Progress, 2018 WL 2441518, at *15 (N.D. Cal. May 31, 2018) (“[C]ommunications about publication of the videos, including communications with publication outlets, communications among Defendants and others involved with publishing the videos, and communications about shaping the videos are ‘clearly relevant’ to the purpose of the alleged RICO enterprise and the intent of the participants.”). Alternatively, a limited subpoena can also be relevant when it targets specific facts that will not disclose unpublished information. See Unsworth v. Musk, 2019 WL 5550060, at *5 (N.D. Cal. Oct. 28, 2019) (declining a journalist’s motion to quash under California’s Shield Law because plaintiff only sought the subpoena to establish that reporter had not spoken to defendant other than the published emails at issue and that the emails were in fact published).
The subpoenaed information must be highly relevant to a claim or defense in the underlying litigation and there must be compelling need for the disclosure. Norandal USA, Inc. v. Local Union No. 7468, No.: CV-86-136, 13 Med. L. Rptr. 2167 (Jackson County, Ala. Cir. Ct., Sept. 11, 1986). A compelling interest or need has been defined as "going to the very heart of the matter." Id. In Cowan v. Community Home Banc, Inc., No.: CV-01-4028, 31 Med. L. Rptr. 2498, 2501 (Jefferson County, Ala. Cir. Ct., Feb. 26, 2003), the court held that if the information sought from a reporter relates to the central inquiry of the case, then the subpoenaing party has a compelling need for disclosure sufficient to override the qualified First Amendment privilege. If, on the other hand, the purpose of the subpoena is to gather information tangential to the central inquiry of the case, such as information used to attack the credibility of testimony, then the subpoenaing party does not have a compelling need for disclosure and the privilege will not be overcome. Id.
Alaska appellate courts have not had occasion to squarely address the existence or scope of a reporter's privilege. In those trial court proceedings where the qualified constitutional reporter's privilege has been asserted, it has been assumed that to overcome the privilege the subpoenaing party must make a showing that the information sought is crucial to, or goes to the heart of, its case. The shield law, if applicable, likewise requires the applicant for divestiture of the privilege to show why the disclosure is "essential" to the administration of justice, a fair trial in the instant proceeding, or the protection of the public interest.
The purpose of A.R.S. § 12-2214 is to protect the media from being used as "litigation consultants" by lawyers who use subpoenas to recruit the assistance of the media in making their cases. Bartlett, 150 Ariz. at 183, 722 P.2d at 351. To carry out that objective, the statute compels the party seeking the information to demonstrate "[t]hat the information sought is relevant and material to the affiant's cause of action or defense." A.R.S. § 12-2214(A)(4) (emphasis added). Moreover, the First Amendment privilege recognized in Reinstein, 240 Ariz. 442, 381 P.3d 236, and Shoen v. Shoen, 48 F.3d 412 (9th Cir. 1995), requires an even stronger showing of need.
Several trial courts in Arkansas have held, in orders quashing subpoenas, that the United States and Arkansas constitutions create a qualified privilege in favor of the media, and have applied a three-part test that a party seeking disclosure must meet: 1) the materials must be relevant to a claim or defense in the underlying litigation; 2) the information must be unavailable from any other source less chilling of the free-press provisions; and 3) there is a compelling need for disclosure sufficient to override the privilege. See Order, State v. Bernard, No. 94-2133 (Pulaski County Cir. Ct., 2d Div., Feb. 21, 1995); Order, First Commercial Trust v. Aldridge, No. 94-3006 (Pulaski County Cir. Ct., 2d Div., Dec. 12, 1994); Order, State v. Echols, No. CR 93-450A (Craighead County Cir. Ct., Mar. 11, 1994).
In criminal cases, the defendant bears the burden of showing “a reasonable possibility the information will materially assist his defense.” Delaney v. Superior Court, 50 Cal. 3d 785, 808, 789 P.2d 934, 268 Cal. Rptr. 753 (1990). If this threshold showing is established, the court should consider the other elements discussed below. If the defendant does not make this threshold showing, the defendant has no right to the reporter’s information. Id. at 808-09; see also People v. Cooper, 53 Cal. 3d 771, 820, 809 P.2d 865, 281 Cal. Rptr. 90 (1991) (California Supreme Court refused to compel a reporter to produce anonymous letter that allegedly described mishandling of a murder investigation, finding “the competency of the investigation . . . was only tangentially related to the relevant issue of guilt,” and already had been “exhaustively explored”); People v. Frederickson, 8 Cal. 5th 963, 1016, 457 P. 3d 1, 258 Cal. Rptr. 3d 114 (2020) (affirming trial court's refusal to compel disclosure of notes from interview with criminal defendant because defendant did not meet Delaney's threshold test).
Once the defendant has made the threshold showing, the court should balance four factors, one of which is “the importance of the information to the criminal defendant.” See Delaney, 50 Cal. 3d at 811. The California Supreme Court noted in Delaney that “[a] defendant in a given case may be able not only to meet but to exceed the threshold ‘reasonable possibility’ requirement.” Id. “If so, the balance will weigh more heavily in favor of disclosure than if he could show only a reasonable possibility the evidence would assist his defense.” Id.
In civil cases, “disclosure should be denied unless the information goes ‘to the heart of the plaintiff’s claim.’” Mitchell v. Superior Court, 37 Cal. 3d 268, 280, 690 P.2d 625, 208 Cal. Rptr. 152 (1984) (citations omitted). The court noted that the trial court should evaluate the information sought from this perspective, and only allow discovery of the information that is essential to the claim of the subpoenaing party. Id. at 282.
The Shield Law states that the information sought must be "directly relevant" to a "substantial issue" in a proceeding. Colorado courts have determined when something is directly relevant to a substantial issue on a case by case basis. C.R.S. § 13-90-119(3)(a); Gordon, 9 P.3d at 1118. "In some cases, the confidential information may be the only evidence of a crucial aspect of the case, while in other situations, the information may be only marginally relevant to a less significant issue. Id. In Gordon, the court found that the identity of the source was directly relevant to a substantial issue. "[I]n a media defamation case the information about the reliability of the declarant's source may be relevant to a significant issue of the reporter's state of mind about the truth or falsity of his broadcasts. The less credible the source, the more likely the declarant acted with malice or reckless disregard. . ." Id.
Federal courts, applying a constitutional qualified privilege in Colorado, have determined that the information sought must be "centrally relevant" or "substantially relevant." Re/Max, 846 F. Supp. at 911-12. In Re/Max, the court found that the party seeking the information had not met its burden of proof as to the relevancy. "The only possible value in deposing Rebchook [the reporter] is to impeach Lininger's testimony. . . I conclude that deposing Rebchook offers de minimis impeachment value." Id. at 912.
See VI-A supra. To overcome the privilege, the subpoenaing party must show by clear and convincing evidence that the information sought is "critical or necessary to the investigation or prosecution of a crime or to a defense thereto, or to the maintenance of a party's claim, defense or proof of an issue material thereto." Conn. Gen. Stat. § 52-146t(2)(A).
To overcome the journalist’s privilege, the information-seeking party must establish that the information at issue is highly relevant: for example, plaintiffs seeking the disclosure of sources’ identities must show that those identities go to “the heart of the plaintiffs’ claim.” Carey v. Hume, 492 F. 2d 631, 634 (D.C. Cir. 1974); see also United States v. Ahn, 231 F.3d 26 (D.C. Cir. 2000) (affirming grant of motion to quash where reporter’s testimony was not “essential and critical” to the case); Saperstein v. Palestinian Auth. (In re Goldberg), 693 F. Supp. 2d 81 (D.D.C. 2010) (granting motion to quash where information did not bear on “an important issue at stake in the litigation”); Hatfill v. Gonzales, 505 F. Supp. 2d 33 (D.D.C. 2007) (granting motion to compel where identity of sources was “an integral component” of plaintiff’s claim). It does not suffice for the information sought to be relevant to any issue in the case; rather, the information must be crucial to the case and its presence essential to a just resolution. Peck v. City of Boston (In re Slack), 768 F. Supp. 2d 189, 194 (D.D.C. 2011) (court must consider “how important, not just relevant” the requested information is to the requesting party’s case).
The material must be "necessary" or "critical" to civil claims and criminal claims asserted by the state. See Fuester v. Conrail, 22 Media L. Rep. (BNA) 2376, 2378 (Del. Super. 1994).
The material must be "relevant and material" to criminal claims when a defendant is seeking the information. State v. McBride, Nos. IK-80-5-0058, IK-80-5-0059 and IK-80-06-0227, Wright, J. (Del. Super. May 6, 1981), affirmed on other grounds, 477 A.2d 174 (Del. 1984). The lower standard reflects the concern for the defendant's Sixth Amendment rights. See supra, Part III.C.2.
District of Columbia
Case law suggests that requested information must go to the heart of the claims and be essential to establish liability or a defense for the privilege to be overcome. Grunseth v. Marriott Corp., 868 F. Supp. 333, 335-36 (D.D.C. 1994) (noting that the criteria for applying the qualified privilege for news or information under the District’s shield law closely track those used for the First Amendment privilege test as set out in Zerilli v. Smith, 656 F.2d 705 (D.C. Cir. 1981)).
The information must be relevant and material to unresolved issues that have been raised in the case. § 90.5015(2)(a), Fla. Stat. (2016). A mere possibility that the reporter might have information that might be helpful to the subpoenaing party does not meet the standard of a clear and specific showing on the issue of relevance.
According to the statute, the subpoenaing party must demonstrate that the information sought is both "material and relevant" and "necessary to the proper preparation or presentation of the case." Georgia courts have interpreted this to mean that the information must be essential to a disputed material element of the claim or defense. Nobles v. State, 201 Ga. App. 483, 486-87 (1991) (affirming quashing of subpoena issued to reporter covering murder trial: "it has [not] been shown that the disclosure of the source of this erroneous information was in any way material or relevant or necessary").
If Hawai'i courts recognize the reporter's privilege, the factor that seems to be most critical in determining whether the privilege applies is the relevance of the information sought from the reporter to the case. The Hawai'i Supreme Court in Goodfader declined to recognize an evidentiary privilege because disclosure of the reporter's confidential sources of information in that case was of overriding importance to the plaintiff in the case.
In DeRoburt, one of the factors considered by the court in determining whether the plaintiff in a defamation case was entitled to disclosure of the reporters' sources was whether disclosure was a "critical element" and went "to the heart" of the plaintiff's case.
In Belanger, the trial court applied the reporters' privilege because the plaintiff failed to demonstrate that the photographs were necessary or critical to his claim.
If the material sought by the subpoena is not relevant to the case, then the first challenge from the reporter ought to be based upon the limitations imposed upon non-relevant discovery under the applicable court rules. This is the approach developed and endorsed by the Idaho Supreme Court in the Sierra Life case.
If the reporter’s privilege is deemed by the court to apply to the facts of the case, then the relevance of the material is also significant under the various prongs of the Branzburg test. The first prong of that test requires that the information sought be “clearly relevant” to a specific probable violation of the law.
The Statute specifically states that the party seeking disclosure shall allege that the specific information sought is relevant to the proceedings. 735 ILCS 5/8-904. The court in People v. Pawlaczyk addressed the issue of relevancy, holding that “section 8-904 requires only a showing that the information requested is ‘relevant to the proceedings’ . . . in which the information is sought. 189 Ill.2d at 193, 724 N.E.2d at 911. The court defines “relevant” as a fact that “tends to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Id.; People v. McKee, 2014 IL App (3d) 130696 ¶ 13, 24 N.E.3d 75, 43 Media L. Rep. 1123 (2014).
. For example, in Pawlaczyk, which involved a grand jury proceeding on a potential charge of perjury against city officials, the defendants claimed that since the information sought was not relevant to the libel proceeding in which the defendants allegedly made the perjurious remarks, the privileged information was not relevant. 189 Ill.2d at 192-93. The court concluded that the information must be relevant to the proceeding in which the information is sought, the perjury proceeding in this case, regardless of its relevance to the proceeding in which the perjurious statements were made. Id. at 193-94. Lastly, the court rejected any assertion that the privileged information must be “critically relevant” to the proceedings at issue. Id. at 195.
Applying the standard set forth in Pawlaczyk, the court in Kelley v. Lempesis, No. 13-cv-4922, 2015 WL 4910952 (N.D. Ill. Aug. 17, 2015) found the defendant in a civil suit alleging sexual abuse satisfied the Statute’s “threshold relevance standard for divesting the reporter’s privilege,” where he sought video outtakes from a news story about his alleged conduct that “may tend to make any one of the elements of sexual abuse and battery more or less probable. . . .” Id. at *3. The court rejected broadcaster’s argument that privileged information had to be admissible at trial to qualify as “relevant” for purposes of the Statute. Id. at *4.
On the other hand, in People v. McKee, a criminal prosecution for first degree murder, even though the circuit court acknowledged that “the information being sought was seemingly off topic with regard to the murder charges,” it found the information pertained to whether a “leak” to the reporter violated Illinois law. Reversing the lower court’s divestiture order, the appellate court held “[a]s a matter of statutory construction, relevance to such collateral matters is not sufficient to satisfy section 8–904‘s threshold requirement that the sought-after information be relevant to the proceedings in which it is being sought.” 2014 IL App (3d) 130696 ¶ 14. See also Illinois v. Johnson, 11 Media L. Rep. 1101, 1102 (Ill. Cir. Ct. 1984) (quashing a criminal defendant’s subpoena for materials relating to a WBBM broadcast where relevance and admissibility of reporter’s evidence was questionable).
Some courts have found speculation that a reporter’s testimony “may” “potentially” be relevant is insufficient to abrogate the privilege; a “showing of potential relevance will not suffice.” Neal v. City of Harvey, Illinois, 173 F.R.D. 231, 234, 25 Media L. Rep. 2403 (N.D. Ill. 1997); see also United States v. Lloyd, 71 F. 3d 1256, 1268 (7th Cir. 1995) (affirming lower court’s decision to quash a speculative subpoena); Illinois v. Fort, 15 Media L. Rep. 2251, 2253-54 (Ill. Cir. Ct. 1988) (quashing subpoena served on reporter and news station seeking information defendants believed “may be useful in the cross-examination of anticipated witnesses,” because potential prior inconsistent statements of such witnesses and were not “relevant to the ultimate issues” in the case, nor “essential to protect the public interest implicated”).
The material or testimony subpoenaed must be relevant to the case, under normal discovery rules. See WTHR-TV v. Milam, 690 N.E.2d 1174, 1176 (Ind. 1998) (“[D]iscovery rights do not entitle a criminal defendant to commandeer the efforts of third parties as a substitute for independent defense investigation. Nor do the Trial Rules allow the defendant to rummage through the files of third parties, particularly the press, for information whose materiality is only a matter of pure supposition.”); see also In re Wireman, 367 N.E.2d 1368, 1371 (Ind. 1977) (refusing to confront issue of applicability of shield law, because newsperson’s testimony was irrelevant).
The requesting party's need for the information must be substantial before the reporter's constitutional rights will be subordinated. Lamberto, 326 N.W.2d at 308. The requesting party is subject to a "strict showing of necessity  to avoid fishing expeditions by litigants who . . . seek to use reporters as investigative tools." Id. (citing Silkwood v. Kerr-McGee Corp., 563 F.2d 433, 438 (10th Cir. 1977)).
Under state law, the material must be "highly material and relevant" to the case at bar. La. R.S. 45:1459(B)(1)(a). In In re Selcraig, 705 F.2d 789, 792 (5th Cir. 1983), the United States Fifth Circuit held that "knowledge of the identity of the informant must be necessary to proper presentation and preparation of the case before the privilege can be overcome."
For confidential sources and information, the identity of the source or the information must be "critical" or "necessary." 16 M.R.S.A. § 61(2)(A)(2).
For non-confidential sources and information, the relevance of the materials sought will be a factor in weighing any possible injury to the free flow of information against the subpoenaing party's pursuit of the information. See, e.g., State v. Hohler, 543 A.2d 364, 366, 15 Media L. Rep. 1611 (1988) (high relevance of testimony sought factored into decision favoring disclosure).
Any subpoena may be quashed if “unreasonable [or] oppressive.” Me. R. Crim. P. 17(c). The attorney for the subpoenaing party also must make arrangements to minimize the burden on the subpoenaed person. Me. R. Crim. P. 17(a). Although a criminal defendant has a right to “have compulsory process for obtaining witnesses in his favor,” that right is not violated unless the defendant demonstrates “how the testimony would have been both material and favorable to his defense.” State v. Deering, 611 A.2d 972, 974 (Me. 1992).
The party seeking protected news or information must show by clear and convincing evidence that “[t]he news or information is relevant to a significant legal issue before any judicial, legislative, or administrative body, or anybody that has the power to issue subpoenas.” Md. Cts. & Jud. Proc. Code Ann. § 9-112 (d)(1)(i).
Relevance is certainly a factor that is considered in the balancing by a court considering a claim of privilege. See, e.g., In re Roche, 411 N.E.2d 466 (Mass. 1980); Summit Technology, Inc. v. Healthcare Capital Group, Inc., 141 F.R.D. 381 (D. Mass. 1992).
In cases of criminal contempt, the Massachusetts courts have adopted the Federal courts' interpretation of the analogous federal subpoena rule, Fed. R. Crim. P. 17 (c). "[T]he party moving to subpoena documents to be produced before trial must establish good cause, satisfied by showing '(1) that the documents are evidentiary and relevant; (2) that they are not otherwise procurable reasonably in advance of trial by exercise of due diligence; (3) that the party cannot properly prepare for trial without such production and inspection in advance of trial and that the failure to obtain such inspection may tend unreasonably to delay the trial; and (4) that the application [was] made in good faith and is not intended as a general "fishing expedition."'" Commonwealth v. Lam, No. SJC-09322 (MA 5/13/2005) (MA, 2005), citing United States v. Nixon, 418 U.S. 683, 699-700 (1974).
The Michigan Court Rules require that the information sought for discovery be relevant to a “party’s claims or defenses and proportional to the needs of the case” before discovery will be granted. MCR 2.302(B)(1). However, the information sought need not be admissible in court to be discoverable. Id. Courts will always expect the issuer of the subpoena to demonstrate the relevance of the material to their case at hand. See NLRB v. Midland Daily News, 151 F.3d 472 (6th Cir. 1998) (requiring subpoenaing party to demonstrate a reasonable basis for seeking the information via subpoena).
The statute requires that the information sought be "clearly relevant." Minn. Stat. §§ 595.024 subd.2(1), 595.025 subd. 2(a).
In 2006, a Minnesota district judge held that a newspaper reporter had to disclose unpublished information obtained from a telephone interview with a suicidal man during a police standoff (the man ultimately killed himself). Order Re: MS 595.024 MN Free Flow of Information Act, In re Death Investigation of Jeffrey Alan Skjervold, No. CV 07 168, Blue Earth Cty., Minn., Dist. Ct., dated Feb. 13, 2007. Because the man held his wife hostage and shot at least two police officers, the court found that that he had committed felony violations and that there was "no doubt" that information obtained by the reporter "would be clearly relevant to such crimes." In so holding, the court rejected the newspaper's argument that the exception only applies where a defendant faces actual prosecution. The Court of Appeals reversed on other grounds, holding that the county attorney had not established the third factor: “Essentially, the county attorney argues that it needs to conduct discovery to find an injustice, but declines to connect the discovery to a particular injustice. We conclude that the statute requires that the particular injustice be identified.” In re Death Investigation of Skjervold, 742 N.W.2d 686, 690 (Minn. App. 2008).
Likewise, the supreme court stressed in Weinberger v. Maplewood Review that the test for relevance is a liberal one: whether evidence has "any tendency" to make a consequential fact more or less probable. 668 N.W.2d 667, 673 (Minn. 2003). In that case the court held that a high school football coach could obtain from a nonparty reporter the identities of his confidential sources who were also named defendants in the coach's defamation action. 668 N.W.2d at 675. The court considered both (1) whether disclosure of the source's identity would lead to relevant evidence on the issue of actual malice and (2) whether there was probable cause to believe that the source had information clearly relevant to the issue of defamation. 668 N.W.2d at 672ñ73. Concluding that both tests were met, the court stated,
the plaintiff has alleged that the defendant is the source of the allegedly defamatory statements, relevant evidence constitutes not only evidence on the source's knowledge, but also the source's identity. . . . [W]hen the identity of the speaker is hidden under the cloak of anonymity . . . it is self-evident that the identity of the speaker will lead to relevant evidence on the issue of actual malice.
668 N.W.2d at 673ñ74. The court further held that the probable cause requirement was satisfied because the district court's narrow order only required disclosure of those sources named as defendants, thereby ensuring that disclosure would lead to relevant information. 668 N.W.2d at 674.
To the extent it was not overruled by Weinberger, another instructive case is Bauer v. Gannett Co., Inc. (KARE 11), 557 N.W.2d 608 (Minn. App. 1997), overruled to extent inconsistent with Weinberger, 668 N.W.2d 667. In Bauer the court of appeals held that the "clearly relevant" standard would be satisfied by evidence that "went to the heart of the claim," and went on to state that "[t]he constitutional standard, as well as the plain meaning of the statutory text, however, require the district court to perform an exacting analysis of each individual request for disclosure of a confidential source or information leading to his or her identity to determine if that particular source or that particular information is clearly relevant to the claim." 557 N.W.2d at 611.
In State v. Knutson, the appellate court ordered in camera review of photographs because "there is a likelihood that a photograph will provide conclusive information as to whether Simmer was wearing brass knuckles at the time of Knutson's assault. . . . Photographs may provide more accurate information than conflicting eyewitness accounts as to whether Simmer was wearing brass knuckles." 539 N.W.2d 254, 258 (Minn. App. 1995) (emphasis added).
Conclusory statements that the information sought might be important are not sufficient to compel disclosure. Steele v. Tell, No. C2-94-981, 1994 Minn App Lexis 1079, *9 (Minn. Ct. App. Nov. 1, 1994) (unpublished).
District courts do not abuse their discretion by denying discovery based on mere speculation about what evidence might turn up. Lewis v. St. Cloud State Univ., 33 Med. L. Rep. 1660, 1666 (Minn. App. March 22, 2005) (unpublished).
In Range Development Co. of Chisholm v. Star Tribune, 885 N.W.2d 500 (Minn. App. 2016), plaintiff sought to compel disclosure of the identity of a confidential source who had provided a reporter with a copy of a government document from which the reporter wrote an article. The Court of Appeals reversed a district court order compelling disclosure. Conjecture that the reporter might have discussed something of substance with the source beyond mere receipt of the government report would not suffice. Id. at 510-12. The appellate court held that the district court erred by ordering disclosure, and explained:
[Plaintiff] has not made the affirmative showing required to merit an exception to the act's general rule that a court may not require a reporter to disclose confidential sources. See Minn.Stat. § 595.023 (2014) (stating that general rule). It has neither demonstrated that the source's identity will lead to relevant evidence nor established probable cause that the source has information clearly relevant to the issues of defamation. Both showings require concrete evidence that discovery of the source will lead to persuasive evidence. And while [the reporter] may have embellished the report in this article, because there has been no showing that the source supplied him with information other than the report, there has been no demonstration that learning the source's identity would lead to persuasive evidence on the issues of falsity or malice.
Id. at 511-12.
Under the constitutional privilege, “the mere possibility of impeachment evidence is an insufficient reason to vitiate the qualified privilege.” Keefe v City of Minneapolis, 41 Med. L. Rep. 1275, 1279 (D. Minn. May 25, 2012).
The court in Classic III points out that the test of relevancy must go further than the standard for discovery set out in the Missouri Supreme Court Rules, which states that the evidence discovered must be relevant or reasonably likely to lead to the discovery of admissible evidence. 954 S.W.2d at 657. That same case cites as persuasive the test set out in Cervantes v. Time, 464 F.2d 986 (8th Cir. 1972), where the U.S. Court of Appeals for the Eighth Circuit held that the identity of sources should be revealed only if the movant shows concrete evidence that the source will lead to persuasive evidence on a key issue. The court in Classic III also required a showing of the strength of the movant’s case for libel prior to requiring disclosure. 954 S.W.2d at 659.
In most cases, the relevance of the material or testimony that has been subpoenaed should be irrelevant. The privilege is absolute and does not rest on materiality. As noted above, however, the Nevada Supreme Court has noted in dicta that there may be situations in which the privilege may be defeated, such as in a case where a criminal defendant's constitutional rights would be violated if the privilege were recognized. Aspen Fin. Servs., Inc. v. Eighth Judicial Dist. Court, 129 Nev. 878, 313 P.3d 875, 879-80 (2013), citing Diaz v. Eighth Judicial Dist. Court, 116 Nev. 88, 993 P.2d 50, 59 (2000). In such a case, it is likely that the materiality of the testimony would be considered. See, e.g., id. at 106, 62 (Maupin, J., concurring) (“In the present case, the evidence sought has only marginal importance in the matter pending in district court.”).
There is no Supreme Court case that further amplifies the standard as set forth in State v. Siel, 122 N.H. 254 (1982), which requires that in a criminal case "the information sought by the defendant must be material, in that it must go to the heart of the case." Id. at 260. The trial court opinion in Siel has a lengthy discussion of relevance and "materiality." New Hampshire v. Siel, 6 Media L. Rptr. 1904, 1911-14 (1981); see Siel, 122 N.H. at 259 (“adopt[ing] the well-reasoned opinion of the trial judge”).
Under Rule 11-514, the threshold question is whether the information or the source is “material and relevant to the action.” But relevance is not enough; the information or source must be “crucial.” Rule 11-514(C)(1), (3) NMRA. “Essential” is the standard under the statutory privilege applicable to nonjudicial proceedings. NMSA 1978, § 38-6-7(A), (C) (1973).
The first and second prongs of the test applied to nonconfidential news, that the materials sought must be "highly material and relevant" and "critical or necessary" to the action, are really two sides of the same coin in that materials that are "critical or necessary" to the action will, in all likelihood, also be "highly material or relevant." However, satisfying the first prong of the test (which appears to be the easiest of the three to meet) will not necessarily satisfy the second. To satisfy the "critical or necessary" requirement, the materials sought must be more than merely useful to the party seeking them. Rather, the party seeking production must convince the court that a claim virtually rises or falls with the admission or exclusion of the proffered evidence and that the defense or prosecution of the action may not be presented without it. See Flynn v. NYP Holdings, Inc., 235 A.D.2d 907, 652 N.Y.S.2d 833 (3d Dep't 1997); In re Subpoena to NBC, 79 F.3d 346; United States v. Marcos, 1990 WL 74521, 17 Media Law Rep. 2005 (S.D.N.Y. 1990); Doe v. Cummings, 1994 WL 315640 *1, 22 Med. L. Rep. 1510 (1994) (holding that material's usefulness for cross-examination does not satisfy burden); In re Investigation into Death of John Doe, 34 Med. L. Rptr. 1057, 1059 (N.Y. Sup. Ct. Suffolk Cty. 2004) ("It has been said that the test is not merely that the material may be helpful or probative, but whether or not the case may be presented without it"). Even where certain testimony is highly material and relevant to an issue in the case, it is not "critical" if it is merely cumulative or if the party seeking the testimony alleges only a vague need for impeachment material. People v. Troiano, 127 Misc.2d 738, 486 N.Y.S.2d 991 (City Ct. Suffolk Cty. 1985). Merely invoking the "critical or necessary" language without any support or analysis is insufficient to overcome the privilege. Flynn, 235 A.D. 2d 907.
It is difficult to establish the "critical or necessary" element of the test. See, e.g., In re Brown & Williamson v. Wigand, 228 A.D.2d 187, 643 N.Y.S.2d 92 (1st Dep't 1996) (finding that while subpoenaed outtakes were “highly material and relevant” to case against former employee for violating breach of confidentiality agreement, company had not established that they were "critical or necessary" to its case, since it already had "ample proof" of breach from interview broadcast on CBS); In re Subpoena to Ayala, 162 Misc.2d 108, 114, 616 N.Y.S.2d 575 (1994) (finding that while subpoenaed outtakes were highly relevant and material and unavailable elsewhere, defendant's speculation that they were most reliable version of events and may prove inconsistencies in officer's testimony did not satisfy “critical or necessary” requirement”); United Auto Grp. v. Ewing, 34 Med. L. Rptr. 1801, 1803 (S.D.N.Y. 2006) (quashed subpoena for video outtakes from CBS news interview where plaintiff claimed they "may" strengthen its case and provide an independent basis for its claims but conceded it could prove its case without them); People v. Griffin, 21 Med. L. Rep 1030 (N.Y. Sup. Ct. N.Y. Cty. 1992) (quashing subpoenas where defendant could not make "clear and specific showing" that video footage was highly material and relevant and critical and necessary to his defense, since it would not prove or disprove who committed the crime and he did not claim the incident itself was caught on tape).
The material sought must be "relevant and material to the proper administration of the legal proceeding for which the testimony or production is sought." N.C. Gen. Stat. § 8-53.11(c)(1); see also Higgins v. Young, 29 Media L. Rep. 2528 (N.C. Superior Ct. 2001). In State v. Peterson, 31 Media L. Rep. 2501 (N.C. Superior Ct. 2003), the defendant's attorneys sought notes and other written material from journalists for the stated purpose of determining whether law enforcement officers had testified truthfully to the court about whether they had relayed information about the case to members of the news media. The defendant proposed that the notes be reviewed in camera by the court. In its decision, the court recognized that even in camera review constitutes a significant intrusion into the newsgathering and editorial process, and it quashed the defendant's subpoena, holding that "the mere possibility of finding evidence that the officers did not testify truthfully about their contacts with the news media" was insufficient to overcome the statutory privilege.
Before a defendant in a criminal proceeding is entitled to either a newsperson's confidential information or confidential source, the defendant must first demonstrate to the court that either the newsperson or the confidential source has relevant evidence regarding the defendant's guilt or innocence. The defendant must show that he has exhausted all available means of obtaining the confidential information requested of the newsperson. Further, the defendant must make an effort to examine the newsperson concerning his non-confidential information and must request an in camera inspection by the court of the newsperson's confidential information. If, after these steps are taken, there is direct evidence and reasonable inferences flowing therefrom that there is a reasonable probability that the newsperson or the confidential source will provide relevant evidence of the defendant's guilt or innocence, the defendant is entitled to either the newsperson's confidential information or the name of his confidential source. In re McAuley, 63 Ohio App.2d 5, 408 N.E.2d 97 (Ct. App. Cuyahoga Co. 1979)
The material sought must be highly relevant, that, is, go to the heart of the case of the party seeking the information. In Taylor v. Miskovsky, the information sought by the plaintiff in a defamation case was from a reporter who researched and wrote articles about the plaintiff after the publication of the articles written by another reporter that were at issue in the suit. The court concluded that what the second reporter found could not be relevant to the issues in the case over the earlier articles.
The Pennsylvania Shield Law provides an absolute privilege against compelled disclosure of confidential source information regardless of a party’s “need for the information.” Davis v. Glanton, 705 A.2d 879, 883 (Pa. Super. 1997).
To overcome the First Amendment privilege, a party seeking disclosure must establish that the information it seeks is “material, relevant, and necessary.” Glanton, 705 A.2d at 885; see also Riley v. City of Chester, 612 F.2d 708, 716 (3d Cir. 1979) (“[T]he materiality, relevance and necessity of the information sought must be shown.”). A party cannot overcome the privilege by showing the “mere possibility that a media entity possesses relevant information.” Glanton, 705 A.2d at 886. Rather, to overcome a reporter’s First Amendment privilege, the moving party must show that the information it seeks is “crucial.” Id. According to the Third Circuit in Riley, this requirement means that the party seeking the information must show that the information goes “to the heart of the [claim].” Riley, 612 F.2d at 717. In Commonwealth v. Bowden, 838 A.2d 740 (Pa. 2003), the Pennsylvania Supreme Court stated that it would interpret the term “crucial” “in accordance with the meaning that the Third Circuit has ascribed to it.” Id. at 757 n.12 (citing cases).
The Rhode Island Shield Law provides that a party seeking to divest the privilege must show "that there is substantial evidence that disclosure of the information or of the source of the information is necessary to permit a criminal prosecution for the commission of a specific felony, or to prevent a threat to human life, and that the information or the source of the information is not available from other prospective witnesses." R.I. Gen. Laws § 9-19.1-3.
There is no case law discussing the relevancy requirement of the shield law in any detail. The statute requires that the subpoenaing party allege and prove, by clear and convincing evidence, not only that the journalist whose testimony is desired has information relevant to issues in the case, but also that, as one of three elements required to be proven to divest the privilege, that there is probable cause to believe that the person from whom the information is sought has information that is clearly relevant to a specific probable violation of law. See Benson v. McConkey, 11 Med. L. Rptr. 1711 (Tenn. Ct. App. 1985).
In the civil context, the subpoenaing party must make a clear and specific showing that 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(6).
In the criminal context, the subpoenaing party must make a clear and specific showing that 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, or is central to the investigation or prosecution of a criminal case and based on something other than the testimony of the requestor, reasonable grounds exist to believe a crime has occurred.” Tex. Code Crim. Proc. art. 38.11, §5(a) (internal parentheses omitted).
Pre-statute case law addressing the relevance factor in applying the reporter's privilege, looked at the relationship between what the materials or information sought was likely to contain and what the material issues in the case were for the party that was seeking the information through subpoena. If the material or information sought by subpoena were not likely to pertain to the issues of the subpoenaing party, then the material or information were generally found to be not highly material and relevant.
Additionally, Texas rules of both civil and criminal procedure also contain requirements of relevancy. Under the Texas Rules of Civil Procedure, a party is entitled to conduct discovery only to the extent “reasonably calculated to lead to the discovery of admissible evidence.” Tex. R. Civ. Proc. 192.3. This rule also applies to criminal proceedings pursuant to Texas Code of Criminal Procedure, article 39.04. See also Coleman v. State, 966 S.W.2d 525 (Tex. Crim. App. 1998). Furthermore, the Texas Code of Criminal Procedure requires that any subpoena issued in a criminal case must constitute or contain evidence material to any matter involved in the action and that, when applying for a subpoena, the applicant must state that the information sought is material to the case. Tex. Code Crim. Proc. art. 39.14 and 24.03.
The Advisory Committee Note to Rule 509 states that in determining whether the need for the information outweighs the interest of a continued free flow of information to news reporters, the court should consider the factors set forth in Silkwood v. Kerr-McGee Corp., 563 F.2d 433 (10th Cir. 1977). Utah R. Evid. 509 advisory committee note (1998). In that case, the U.S. Court of Appeals for the Tenth Circuit held that litigants seeking evidence or testimony from a reporter through a subpoena had to demonstrate that the information sought was "of certain relevance" to the case. Silkwood, 563 F.2d at 438. A magistrate judge in the U.S. District Court for the District of Utah quashed a subpoena of two reporters in part because the party seeking the reporters' testimony had failed to demonstrate certain relevance. Bottomly v. Leucadia Nat'l Corp., 24 Med. L. Rep. 2118, 1996 U.S. Dist. LEXIS 14760 (D. Utah July 2, 1996). Instead, the magistrate judge concluded, the reporters' testimony had only been shown to be potentially logically probative but likely peripheral.
A related requirement expounded by the Tenth Circuit in Silkwood is that the information sought must “go to the heart of the matter.” Silkwood, 563 F.2d at 438. The U.S. District Court for the District of Utah described this requirement as “central or core to the litigation.” Bottomly, 1996 U.S. Dist. LEXIS at *7. A Utah trial court ruled that, in civil cases at least, litigants must demonstrate a “critical need” for information in order to overcome the reporter's privilege. Lester v. Draper, No. 000906048 (Utah 3d Dist. Ct. Jan. 16, 2002).
The Vermont Shield Law permits compelled disclosure of journalistic materials only where the information sought is “highly material or relevant to a significant legal issue.” 12 V.S.A. § 1615(b)(2). This is a more stringent standard than the First Amendment reporter’s privilege in Vermont. State v. St. Peter, 132 Vt. 266, 271, 315 A.2d 254, 256 (Vt. 1974) (information need only be “material and relevant”).
The first prong of the three-part test is that the information sought must be relevant to the case at issue, and some cases hold that the relevance standard is higher than the relevance standard for discovery in general. Church of Scientology Int’l v. Daniels, 992 F.2d 1329 (4th Cir. 1993) (noting that plaintiff in a defamation case had failed to show the relevance of materials sought in discovery where the defendant had offered a stipulation and stating, “the consideration that Daniels offered to stipulate to the accuracy of the quotation that appeared in USA Today makes the relevance of the materials CSI seeks questionable, rather than critical to the case, as the law requires”); Hatfill v. N.Y. Times Co., 242 F.R.D. 353 (E.D. Va. 2006) (“The standard for relevance under LaRouche is higher than the standard under Rule 26. Under LaRouche, the information must be actually relevant.”); see also Commonwealth v. Townley, 46 Med. L. Rptr. 1294 (Va. Cir. Ct. 2018) (quashing subpoena for unaired material relating to statements made by the alleged victim in a criminal case where the defendant could not show that the information was material).
Under the common law, the party seeking to compel compliance with the subpoena must show that "the information sought [is] necessary or critical to the cause of action or the defense pleaded." Senear, 97 Wn. 2d at 155 (confidential source case).
Section 2(b)(1) of the shield statute, which involves the conditional privilege for non-confidential journalist work product, requires the proponent of disclosure to prove that the "news or information is highly material and relevant" and "critical or necessary to the maintenance of a party's claim, defense, or proof of an issue material thereto," and finally that, in a civil action, "there is a prima facie cause of action" and, in a criminal action, "there are reasonable grounds to believe that a crime has occurred." See RCW 5.68.010(2)(b)(1).
The subpoenaing party must meet the very high and difficult burden of proving that the information subpoenaed is "highly material and relevant" and "necessary or critical" to the maintenance of the subpoenaing party's claim or defense. Ranson, 488 S.E.2d 5; Hudok, 389 S.E.2d 188.