2. Material unavailable from other sources
The party seeking the information must show an inability, without undue hardship, to obtain the information by other means (from alternative sources). See Silkwood v. Kerr-McGee Corp., 563 F.2d 433, 438 (10th Cir. 1977).
In United States v. Capers, 708 F.3d 1286, 1302-03 (11th Cir. 2013), the appellate court affirmed the district court’s quashing of a subpoena to a media company for footage of defendant’s interview with police, because the defendant failed to establish why he could not obtain the footage from the police department.
Although the First Circuit courts do not specifically require the moving party to demonstrate that he has made all reasonable efforts to obtain the information by alternative means, this can be a significant factor that the courts consider when balancing the requesting party’s needs against the media’s First Amendment interests. The courts have refused to compel the disclosure of confidential information where the moving party could procure this information through other avenues. See, e.g., In re Special Proceedings, 373 F.3d 37, 45 (1st Cir. 2004) (citing Cusumano v. Microsoft Corp., 162 F.3d 708, 713 (1st Cir. 1998) (holding that disclosure of confidential information would not be compelled where the moving party could secure the information through other, less intrusive avenues but finding that the information sought from the reporter was not readily available from a less sensitive source)); Summit Tech., Inc. v. Healthcare Capital Group, Inc., 141 F.R.D. 381, 384 (D. Mass. 1992) (refusing to require the disclosure of a source’s identity where the defendant had disclosed the name of other sources, the content of his conversation with the unnamed source, and the time frame of their conversation, and where this information was sufficient for the moving party to learn the source’s identity by other means); Alharbi v. The Blaze, Inc., 199 F. Supp. 3d 334, 348-49 (D. Mass. 2016) (considering whether the information sought from the reporter was available from any non-confidential sources and finding that the plaintiff could not obtain information to verify the truth of what the confidential sources allegedly told the defendants from a less sensitive source).
Under New Hampshire law, which the First Circuit has applied in diversity cases involving claims arising under state law, the moving party must demonstrate that it has made “all reasonable efforts to obtain the identity of the confidential source by other reasonable means.” Gray v. St. Martin’s Press, Inc., 221 F.3d 243, 252 (1st Cir. 2000).
The tests for unavailability differ depending on whether the materials are confidential or non-confidential.
The third part of the test to overcome a qualified privilege for confidential information is that the information "is not obtainable from other available sources." Burke, 700 F.2d at 76-77 (To satisfy the "exhaustion requirement" for confidential information, the information sought must "not be obtainable from other available sources."). The third prong for non-confidential information is similar, but a bit less stringent. To overcome the privilege, the non-confidential information sought cannot be "reasonably obtainable from other available sources." Gonzales, 194 F.3d at 36. (To meet the "exhaustion requirement" for non-confidential information, the information sought must "not be reasonably obtainable from other available sources.") (emphasis added).
This part of the test is often referred to as the "exhaustion requirement." Courts in the Second Circuit consistently have given strict application to this element. One district court stated: "[a]t the very least, a party seeking to overcome a constitutional privilege on the basis of necessity must show that it has exhausted all other available non-privileged sources for the information. . . . [A party that] has not even worked up a sweat, much less exhausted itself [cannot defeat the privilege]." In re Pan Am Corp., 161 B.R. 577, 585 (S.D.N.Y. 1993). A party seeking disclosure from a journalist has not exhausted its options when obvious alternative witnesses exist and they have not been deposed or at least interviewed. Application of Behar (Church of Scientology v. IRS), 779 F. Supp. 273, 275 (S.D.N.Y. 1991). This rule applies when dozens or even hundreds of alternative witnesses exist. In re Petroleum Products Antitrust Litig., 680 F.2d 5 (2d Cir.), cert. denied, Arizona v. McGraw-Hill, Inc., 459 U.S. 909 (1982). In addition, the Second Circuit has stated that an exhaustion claim is not met by only stating that discovery has not revealed the information sought. Blum v. Schlegel, 150 F.R.D. 42 (W.D.N.Y. 1993). The exhaustion argument is also not satisfied when the party seeking information deposes numerous witnesses during pre-trial discovery, but does not ask any of them if they were the source of the information. In re Petroleum Products Antitrust Litig., 680 F.2d 5 (2d Cir. 1982).
An example of a case where a party was not found to have satisfied the exhaustion requirement in seeking confidential information is United States v. Aponte-Vega, 1992 U.S. Dist. Lexis 7843, 20 Med. L. Rep. 2202 (S.D.N.Y. May 29, 1992) (court only addressed exhaustion requirement); see also 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 Inv., 470 F.2d 778 (2d Cir.), aff'g 339 F. Supp. 942 (S.D.N.Y. 1972), cert. denied, 411 U.S. 966 (1973); In re Pan Am Corp., 161 B.R. 577, 585 (S.D.N.Y. 1993) (court only addressed exhaustion requirement); Sommer v. PMEC Assoc. & Co., 1991 U.S. Dist. LEXIS 5697 (S.D.N.Y. May 1, 1991).
In Aponte-Vega, defendant subpoenaed the author of an article that reported that DEA agents were under investigation for falsifying evidence. 1992 U.S. Dist. Lexis 7843, 20 Med. L. Rep. 2202 (S.D.N.Y. May 29, 1992). Defendants sought to have the reporter reveal his confidential source, but the court held that the government could easily be used as an alternative source for the information and therefore a qualified privilege protected the reporter.
The exhaustion requirement has been met in several cases involving confidential information. 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). For example, in Lipinski, discussed above, the court held that only the editors could possibly reveal who originally told the newspaper that plaintiff had tested positive for HIV, thus the exhaustion requirement was met and plaintiff could depose the editors about the origin of the leak to the newspaper. Lipinski v. Skinner, 781 F. Supp. 131 (N.D.N.Y. 1991) (motion to quash denied).
In Gonzales, the Second Circuit stated that the standard for exhaustion involving non-confidential information is that the information be "not reasonably obtainable from other available sources." Gonzales v. National Broadcasting Co., 194 F.3d 29 (2d Cir. 1998). The Gonzales court held that the information reflected in the outtakes in that case was not reasonably obtainable from other sources "because they can provide unimpeachably objective evidence of Deputy Pierce's conduct." Gonzales, 194 F.3d at 36. The Second Circuit also disagreed with the district court that a deposition in this instance would be an adequate substitute for the information that could be obtained from the outtakes. Id.
An example of a situation in which non-confidential information was held not easily obtainable by other available sources is a matter involving survey responses collected for use in a report on alleged police misconduct during protests during the 2004 Republican National Convention in New York City. The city moved for an order enforcing a subpoena for documents from the NYCLU, which had commissioned the survey. The information was likely relevant to a significant issue in the case, and “equivalent information could be obtained only by subpoenaing and deposing the hundreds of nonparty witnesses who filled out the questionnaires.” Schiller v. City of New York, 245 F.R.D. 112, 120 (S.D.N.Y. 2007). Thus, the City’s motion to compel production was granted.
In the Third Circuit, the party seeking information must (1) "demonstrate that he has made an effort to obtain the information from other sources;" and (2) "demonstrate that the only access to the information sought is through the journalist and her sources." Criden, 633 F.2d at 358-59. Courts in the Third Circuit appear generally to apply these requirements strictly and have required that parties make specific, factual showings as to both elements. Where the party issuing a subpoena is unable to do so, courts have not hesitated to quash subpoenas. See, e.g., Cuthbertson II, 651 F.2d at 195-96; Riley, 612 F.2d at 716-17; Smith, 516 F. App’x at 198; Downey, 2003 WL 23164082, at *6; Nat'l Talent Assocs., Inc., 1997 WL 829176, at *5; In re Scott Paper Co. Sec. Litig., 145 F.R.D. at 371; In re Grand Jury Subpoena of Williams, 766 F. Supp. at 370.
By the same token, the courts have held that some parties have met their burden on this element. See, e.g., Criden, 633 F.2d at 358-59 (where party had taken testimony from suspected source and sought to obtain relevant information from government, and reporter remained only avenue to obtain information concerning source's credibility and motivation in conversation with reporter, party had met burden on these elements); In re Grand Jury Empanelled Feb. 5, 1999, 99 F. Supp. 2d at 500-01 (where government sought audiotape of interview with person who purportedly had information concerning fraud committed by others and credibility of interviewee was at issue, and reporter possessed only copy of audiotape, government had met burden on these elements); In re Subpoena to Barnard, 1999 WL 38269, at *3 (where party had sought testimony from only person other than reporter with knowledge of conversation in question and that person had invoked Fifth Amendment right, party had met burden on these elements); In re Subpoena of Maykuth, 2006 WL 724241, at *3 (where party deposed suspected sources and reporter remained only person who could verify whether plaintiffs made certain statements, party met burden on these elements); Siroky, 2018 U.S. Dist. LEXIS 49114, at *18-20 (plaintiff in civil age discrimination action against her employer who issued third-party subpoena to reporter met her burden to prove that subpoenaed testimony was critical to her case and that she could not obtain confirmation that interview subject, her boss, made disparaging statements about older employees without compelling reporter to testify to accuracy of quotations).
The LaRouche test weighs “whether the information can be obtained by alternative means.” 780 F.2d at 1139. This requirement is in line with the earliest Fourth Circuit formulations of a balancing test; in Gilbert v. Allied Chem. Corp., the first case in the Fourth Circuit to address a reporter’s privilege, the seeking party had to show “that his only practical access to crucial information necessary for the development of the case is through the reporter’s sources.” Gilbert, 411 F. Supp. 505, 510 (E.D. Va. 1976). Forcing a reporter to reveal information “is to be the last resort of the litigants.” Miller, 602 F. Supp. at 679.
To overcome the reporter's privilege, the subpoenaing party must demonstrate with substantial evidence that the information sought is not available from other sources. Miller v. Transamerican Press, Inc., 621 F.2d 721, 726, as modified, 628 F.2d 932 (5th Cir. 1980). An attempt to obtain the information from other sources must be undertaken regardless of time, cost, or productivity concerns. Lenhart v. Thomas, 944 F. Supp. 525, 530 (S.D. Tex. 1996).
To overcome the First Amend reporter's privilege, the subpoenaing party must demonstrate that it has tried other sources without success. NLRB v. Midland Daily News, 151 F.3d 472 (6th Cir. 1998); Southwell v. Southern Poverty Law Ctr., 949 F.Supp. 1303 (W.D. Mich. 1996); In re Daimler Chrysler, 216 F.R.D. 395 (E.D. Mich. 2003); see In re Grand Jury Proceedings, 810 F.2d 580 (6th Cir. 1987).
The courts in the Sixth Circuit have not elaborated on this requirement. In Midland Daily News, the Sixth Circuit ruled that the NLRB could not enforce an administrative subpoena against a newspaper where the NLRB had not attempted any other form of investigation. In Grand Jury Proceedings, the Sixth Circuit ruled that a police informant's refusal to identify a murder suspect in court entitled a grand jury to subpoena a television journalists' outtakes through which police could pinpoint the suspect's likeness and identity.
Exhaustion of other sources is not required, Davis v. City of Springfield, No. 04-3168, 2009 U.S. Dist. LEXIS 26806, at *13 (C.D. Ill. April 1, 2009). Earlier cases have held that a subpoenaing party must show that that it does not have the information and it is 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 show it does not have the information sought and it is not available from other sources. Id. at *2 - *3. One court held the subpoenaing party must demonstrate that the information sought is not available from a non-journalistic source. See Neal v. City of Harvey, Ill., 173 F.R.D. 231, 233 (N.D. Ill. 1993). Another court ruled it will order the disclosure of the reporter's source only when the subpoenaing party shows that every reasonable alternative source for that information has been exhausted. See Warzon v. Drew, 155 F.R.D. 183, 187 (E.D. Wis. 1994).
In Nelle v. WHO Television, LLC, the Court noted that, “[a]s a practical matter, there is no alternative source to reveal the content and context of the unaired video segments. The best evidence is the audio and video recording of what was actually said by the interviewees, what was said to them by [the reporter], and the manner in which the interviews were conducted.” 2017 WL 7049237, *4 (S.D. Iowa Dec. 20, 2017).
The subpoenaing party must show that the material sought is unavailable despite the exhaustion of all reasonable alternative sources. Shoen II, 48 F.3d at 416. At a minimum, this requires a showing that the requested information is not available from another source. Shoen I, 5 F.3d at 1296; id. at 1297 (“[C]ompelled disclosure from a journalist must be a ‘last resort after pursuit of other opportunities has failed.’”) (citation omitted); see also, e.g., Harbert v. Priebe, 466 F. Supp. 2d 1214, 1216 (N.D. Cal. 2006) (rejecting subpoena seeking expunged criminal records because those records were still available to the public); Newland, 2021 WL 6051675, at *3 (noting that recorded verbatim statements are inherently not available from any other source).
Alabama law requires a subpoenaing party to demonstrate that it has unsuccessfully attempted to obtain the information from other sources. 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). Alabama courts have not addressed the meaning of unavailability.
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 it has exhausted other means of obtaining the information sought, and that this information is unavailable from other sources not protected by this First Amendment privilege. The shield law does not expressly address this issue.
Under the Saxton rule, the party seeking disclosure is required to demonstrate a reasonable effort to discover the information from other sources before asserting the need to breach the privilege. In Saxton, the court noted that the trial court properly denied the plaintiff's motion to compel discovery in part because he failed "to make a reasonable effort to determine the informant's identity" on his own. Saxton, 246 Ark. at 136, 569 S.W.2d at 117.
In criminal cases, after the threshold showing has been met, one of the four factors the court should consider is whether there is an alternative source for the unpublished information. Delaney v. Superior Court, 50 Cal. 3d 785, 811, 789 P.2d 934, 268 Cal. Rptr. 753 (1990). Although this is only one of four factors to be weighed in deciding whether to compel disclosure, one California court has held that where an alternative source has been identified, the trial court may deny access to the reporter’s information. See People v. Von Villas, 10 Cal. App. 4th 201, 236, 13 Cal. Rptr. 2d 62 (1992).
In civil cases, “discovery should be denied unless the plaintiff has exhausted all alternative sources of obtaining the needed information.” Mitchell v. Superior Court, 37 Cal. 3d 268, 282, 690 P.2d 625, 208 Cal. Rptr. 152 (1984).
The second prong of the test is whether the information is obtainable through other reasonable means. C.R.S.§ 13-90-119(3)(b). The burden is on the party seeking the information to demonstrate "that no other reasonably available sources of the information exist and that the party has exhausted the reasonably available sources that might provide the information sought." Gordon, 9 P 3d. at 1118.
See VI-A supra. To overcome the privilege, the subpoenaing party must show by clear and convincing evidence that "(A) in a criminal investigation or prosecution, based on information obtained from other sources than the news media, there are reasonable grounds to believe that a crime has occurred, or (B) in a civil action or proceeding, based on information obtained from other sources than the news media, there are reasonable grounds to sustain a cause of action." Conn. Gen. Stat. § 52-146(d)(1). See also Baker v. F & F Investment, 470 F.2d 778 (2d Cir. 1972) (holding that as many as 60 non-journalist depositions of those likely to possess the information is a legitimate exhaustion requirement).
The party seeking disclosure must establish that the material at issue remains unavailable from other sources. Zerilli v. Smith, 656 F.2d 705, 713 (D.C. Cir. 1981) (“reporters should be compelled to disclose their sources only after the litigant has shown that he has exhausted every reasonable alternative source of information”). The party seeking information must therefore show that every reasonable alternative source of the information has been exhausted. E.g., Estate of Klieman v. Palestinian Authority, 18 F. Supp. 3d 4, 6 (D.D.C. 2014) (staying initial order compelling production of outtakes after subsequent discovery created “uncertainty as to whether alternative sources of information are reasonably available”); Peck v. City of Boston (In re Slack), 768 F. Supp. 2d 189 (D.D.C. 2011) (granting motion to quash subpoena where plaintiff’s general descriptions of efforts to obtain information from alternative sources did not suffice to show that alternative sources were unavailable); Hutira v. Islamic Republic of Iran, 211 F. Supp. 115, 122 (D.D.C. 2002) (granting motion to quash subpoena for documents and testimony from journalist and holding that information-seeking party must first contact individuals discussed in published article); NLRB v. Mortensen, 701 F. Supp. 244, 248 (D.D.C. 1988) (noting that the “party seeking the information must show that his only practical access to crucial information necessary for the development of the case is through the newsman’s sources”) (internal marks omitted); Tavoulareas v. Piro, 93 F.R.D. 11 (D.D.C. 1981) (denying motion to compel disclosure of sources as premature in part because plaintiffs had yet to exhaust alternative sources); Maughan v. NL Indus., 524 F. Supp. 93, 95 (D.D.C. 1981) (if alternative means of obtaining information exist, subpoenaed reporter will not be compelled to testify).
Materials must be unavailable from other sources. Whether in a civil or criminal context, unavailability has two components. First, the party seeking to compel testimony must demonstrate that it has sought the information from other sources. Second, the party must demonstrate that the information is unavailable elsewhere. See Fuester v. Conrail, 22 Media L. Rep. (BNA) 2376, 2378 (Del. Super. 1994); 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).
Although the scope of searching for information has not been litigated, unavailability requires more than that the information sought provides a different perspective than available through other sources. See, e.g., Fuester v. Conrail, 22 Media L. Rep. (BNA) 2376, 2378 (Del. Super. 1994) (applying the privilege, in a civil case, to outtakes of television news camera footage of a live event because police were also witnesses); State v. Hall, 16 Med. L. Rptr. 1414 (March 8, 1989) (quashing subpoena ad testificandum in a criminal case when other witnesses, besides reporters, personally witnessed the disorderly conduct in question); State v. Cordrey, C.A. No. 88-07-0000A, Barbiarz, J. (Del. Super. Sept. 28, 1988) (Transcript) (quashing subpoena where reporter was not the only one present who witnessed procedural events in courtroom that may have created jeopardy).
District of Columbia
The person seeking disclosure must establish that the information sought remains unavailable from other sources. D.C. Code § 4703(a)(2); Prentice v. McPhilemy, 27 Med. L. Rptr. 2377, 2381 (D.C. Super. Ct. 1999); see also Braden v. News World Commc’ns, Inc., 18 Med. L. Rptr. 2040 (D.C. Super. Ct. 1991) (holding, prior to passage of D.C. shield law, that a libel plaintiff could not compel disclosure where plaintiff had not exhausted all alternative sources for the information).
According to the statutory privilege, the subpoenaing party must demonstrate the information sought "cannot be reasonably obtained by alternative means." This has been interpreted to require a showing that the information is unavailable from other sources. See, e.g., In re Paul, 270 Ga. 680, 687 (1999) ("[T]he state has failed to show that it could not reasonably obtain much of the information it seeks by alternative means.").
Under the Branzburg test adopted by the Wright court, the reporter’s testimony cannot be compelled unless “the information sought cannot be obtained by alternative means less destructive of First Amendment rights.” Wright, 108 Idaho at 421, 700 P.2d at 43. However, this element of the test received scant attention in the Salsbury case, the most recent privilege case decided in Idaho. Although the Salsbury court based its rejection of the privilege upon the fact that there were no confidential sources or information involved in the case, the court also discussed the application of the Branzburg test to the facts of the case. The court concurred with the trial court that disclosure would be required even if the three-pronged test were applied. This was despite the fact, as the dissent pointed out, that there had been numerous bystanders and onlookers at the site of the accident, none of whom had been interviewed by the prosecutor, and “the onlookers and bystanders may well have satisfied the very need for which the prosecutor said he needed the video tape.” Salsbury, 129 Idaho at 312-313, 924 P.2d at 213-214.
In Ko v. Zilog, U.S. District Court, Idaho, Case. No. 94-0123-2-MHW (1997), U.S. Magistrate Judge Mikel Williams granted, in part, a motion to quash a subpoena served on reporter Chris Farnsworth and his employer Boise Weekly. In the fall of 1996, Mr. Farnsworth began researching and writing an article for the Boise Weekly concerning the allegations of chemical exposures and employee illness at Zilog’s Nampa, Idaho facility. Mr. Farnsworth took many notes and taped various witness interviews during his research and investigation and obtained and relied upon various documents from the pending civil case Ko v. Zilog, Case No. 94-0123-S-MHW, under the explicit promise of confidentiality to his source. (The documents were subject to a Court entered protective/confidentiality order.) After Mr. Farnsworth’s article was published, counsel for Zilog served him with a subpoena seeking all documents, interview notes, tape recordings, photographs, diaries, calendars and drafts related in any way to the Article, including those not published. Mr. Farnsworth filed a motion to quash, relying on both the First Amendment and Idaho Constitution arguing, inter alia, that disclosure of information obtained during the newsgathering process may be compelled only where a showing is made that the requested material is: (1) unavailable despite exhaustion of all reasonable alternative sources; (2) noncumulative; and (3) clearly relevant to an important issue in the case. (Citing Shoen v. Shoen, 48 F.3d 412, 416 (9th Cir. 1995). Judge Williams agreed and granted Mr. Farnsworth motion to quash to the extent that Zilog’s counsel had not yet exhausted all reasonable alternative sources. (see Ko v. Zilog, Case No. 94-0123-2-MHW, Docket No. 979, Order (dated March 26, 1997) (unpublished). Thereafter, counsel for Zilog took over 20 depositions in an effort to discover the source of Mr. Farnsworth article.
In Illinois, in order for a court to issue an order granting disclosure, the material or information sought must be unavailable from other sources. Section 8-907 of the Statute provides that “[a]n order granting divestiture of the privilege . . . shall be granted only if the court, after hearing the parties, finds . . . that all other available sources of information have been exhausted . . . .” 735 ILCS 5/8-907. Illinois courts have strictly applied this component of the test. See, e.g., In re Special Grand Jury Investigation, 104 Ill. 2d 419, 428–29, 472 N.E.2d 450, 454 (1984) (even where a compelling public interest found, and information sought was directly relevant to the grand jury’s inquiry of who leaked information to the reporter, court found reporter’s privilege barred grand jury subpoena to reporter because other sources of the information were potentially available and had not yet been exhausted); In re Arya, 226 Ill. App. 3d 848, 862, 589 N.E.2d 832, 841 (1992) (reversing divestiture order for failure to exhaust all other available sources of information despite finding public interest in videotapes and notes containing interviews relating to a murder investigation, including a confession by an unindicted suspect; “legislature intended divestiture of a reporter’s privilege to be the last resort to get the sought-after information”).
In In re WTHR-TV (State v. Cline), 693 N.E.2d 1 (Ind. 1998), the court addressed the need for a showing of unavailibity from other sources as it relates to a criminal case when it stated “[w]here a media organization is subpoenaed, the Trial Rules require sensitivity to any possible impediments to press freedom. A showing that the information is unique and likely not available from another source should normally be required.” Id. at 9.
As for civil cases, the subpoenaing party under In Re Stearns (Vollmer v. Zulka), must show that all other sources for this information have been exhausted. 489 N.E.2d 146, 151 (Ind. App. 1986).
In order to subordinate the reporter's privilege, the requesting party must have exhausted other means of attaining the information. Lamberto, 326 N.W.2d at 308. Seeking information from a reporter "should be the end, and not the beginning of the inquiry." Id. (quoting Carey v. Hume, 492 F.2d 631, 638 (D.C. Cir. 1974)).
In state court, the movant must show that information he or she seeks “could not, after a showing of reasonable effort, be obtained by readily available alternative means.” K.S.A. 60-482(a)(2). Federal court litigants must demonstrate that the information is unavailable from any other source. Silkwood v. Kerr-McGee Corp., 563 F.2d 433, 438 (10th Cir. 1977).
Under the state reporter's privilege statute, the unpublished material being sought must not be "obtainable from any alternative source." La. R.S. 45:1459 (B)(1)(c). Appellate courts have remanded cases to determine if the material is truly unavailable. In Harvey v. Elder, 626 So.2d 372, 374 (La. App. 4th Cir. 1993), a news station contended on appeal that plaintiffs had failed to make a "clear and specific showing" in the trial court that the materials being sought were not obtainable from any alternative source. The case was remanded because the record did not contain a transcript of an evidentiary hearing before the trial court, prohibiting the appellate court from determining whether the requisite showing had been made. Id.
In Miller v. Transamerican Press, Inc., 621 F.2d 721 (5th Cir. 1980), the Fifth Circuit held that the reporter's privilege was overcome because the information sought was the only way that the defendant could establish malice to prove his case for defamation.
For confidential sources and information, the identity of the source or the information must be unobtainable from any alternative source or unobtainable by alternative means or remedies less destructive of First Amendment rights. 16 M.R.S.A. § 61(2)(A)(3).
For non-confidential sources and information, the Court will inquire whether the information is available from other sources in assessing whether the potential injury to or impairment of the protected newsgathering and editorial processes outweighs the other party's need to acquire that information from the press. See, e.g., In re Letellier, 578 A.2d 722, 729, 17 Media L. Rep. 2169 (1990) (that the information was “plainly unobtainable” from any other source factored into decision favoring disclosure).
Whether the material is available from other sources is a factor that is considered in the balancing performed by a court considering a claim of privilege. See, e.g., Summit Technology, Inc. v. Healthcare Capital Group, Inc., 141 F.R.D. 381 (D. Mass. 1992); Massachusetts v. McDonald, 6 Med. L. Rep. 2230, 2231 (Mass. Super. Ct. 1980).
The statute requires that the person seeking to compel disclosure show that "that the information cannot be obtained by alternative means or remedies less destructive of first amendment rights." Minn. Stat. §§ 595.024 subd.2(2), 595.025 subd. 2(b).
In 2006 a Minnesota district court held that this standard was satisfied where the county sought information regarding a conversation between a newspaper reporter and a man who subsequently 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. The court found no evidence that anyone had recorded the conversation, stating, "that leads to just one rather obvious conclusion: If we want the information, it has to come from the Free Press reporter." 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).
The supreme court reached a similar decision in Weinberger v. Maplewood Review, 668 N.W.2d 667 (Minn. 2003). In Weinberger the plaintiff sought to ascertain whether any of the defendants named in his defamation action were the confidential sources a newspaper reporter used in writing an article about the plaintiff's termination as the local high school's football coach. 668 N.W.2d at 669ñ70. The court found that the plaintiff had deposed each of the defendants to no avail: not one "owned up to any of the statements in question or provided information as to the source." 668 N.W.2d at 675. In fact, the parties did not dispute that this factor weighed in favor of disclosure. 668 N.W.2d at 675.
In Bauer v. Gannett Co., Inc. (KARE 11), the court of appeals explained this requirement
Most courts have required that the movant show an exhaustion of all reasonable alternative means of obtaining the information. . . . We decline to endorse any formulaic approach relying, for example, on numbers of potential sources interviewed or deposed to determine whether the "any alternative means" condition has been satisfied. But we note that this requirement places a burden on the movant to demonstrate that substantial efforts have been made to obtain the information through other means--what constitutes substantial efforts will necessarily vary from case to case.
557 N.W.2d 608, 612 (Minn. App. 1997), overruled to extent inconsistent with Weinberger, 668 N.W.2d 667.
In State v. Knutson, the appellate court ordered in camera review of photographs, even though eyewitnesses might testify to the same general information, because the "photographers . . . used an objective means of recording that information. It is that objective record, not the photographers' eyewitness impressions, that the subpoena seeks." 539 N.W.2d 254, 258 (Minn. App. 1995) (emphasis added). In a prior decision arising from the same criminal prosecution, the court of appeals held that "alternative means" were not present when the other eyewitness testimony was conflicting. State v. Knutson, 523 N.W.2d 909, 912ñ13 (Minn. App. 1994).
In J.J.C. v. Fridell, the court held that plaintiff's assertions that interviews and depositions had failed to reveal the information she was seeking "does not demonstrate an exhaustion of all reasonable alternative means to obtaining the information." 165 F.R.D. 513, 516 (D. Minn. 1995). Similarly, in Keefe v City of Minneapolis, 41 Med. L. Rep. 1275, 1280 (D. Minn. May 25, 2012), the court held that plaintiff had not exhausted all reasonable alternative means despite deposing five witnesses and despite his dissatisfaction with those witnesses’ answers.
The plaintiff's own memory can be a suitable alternative source. Aerial Burials, Inc. v. Minneapolis Star and Tribune Co., 8 Med. L. Rep. 1653 (Hennepin Cty., Minn., Dist. Ct. 1982). It clearly is not enough for a plaintiff to say that he has not been able to obtain the information from the journalists at depositions or in interrogatories. McNeilus v. Corporate Report, Inc., 21 Media L. Rep. 2171, 2174 ñ.75 (Dodge Cty., Minn., Dist. Ct. 1993).
There is no statutory or case law addressing this issue.
The court in Classic III cites numerous federal appellate cases in its analysis of whether the movant can obtain the information from other sources. It notes that there has been no showing of what alternative sources were consulted regarding the information sought. Ultimately, the court concluded in Classic III that similar evidence could be obtained from alternative sources and found that the movants had not met their burden of proof on this element.
In most cases, the unavailability of the material from other sources should be irrelevant. The privilege is absolute and does not rest on unavailability from other sources. As noted above, however, the Nevada Supreme Court has noted in dicta that there may be situations in which the privilege is 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 unavailability of the of the testimony from other sources could be considered. It should also be noted that in Diaz, a concurring opinion gave extensive analysis of the fact that the information sought was available from other sources. Although it appears that such discussion was not necessary for resolution of that matter, it may be indicative of the court's interest in related factual issues and its potential evaluation when faced with a “defendant’s countervailing constitutional rights.” Id. at 101, 59.
As stated in State v. Siel, the privilege to protect a confidential source may be overcome only upon a showing, inter alia, that a defendant "has attempted unsuccessfully to obtain the information by all reasonable alternatives." In Gray v. St. Martin's Press, 221 F.3d 243, 253, the First Circuit characterized the first prong of the Siel test as "the requirement of exhausting other means," and observed that "if Gray were found to have exhausted all reasonable means of identifying the source and [the author] still refused to reveal her source, Gray would have been entitled to a presumption that no source existed."
Under Rule 11-514, the subpoenaing party must show that he “has reasonably exhausted alternative means of discovering the confidential information or sources.” Rule 11-514(C)(2) NMRA. The statutory privilege applicable to nonjudicial proceedings does not specifically address the point, but a requirement that the material be unavailable elsewhere is implicit in the “essential to prevent injustice” standard. NMSA 1978, § 38-6-7(A), (C) (1973).
The final prong of the test for nonprivileged news requires that the party seeking disclosure make a clear and specific showing that the requested materials are "not obtainable from any alternative source." Civ. Rights § 79-h(c). This provision of the statute frequently is the most difficult hurdle for a party seeking disclosure to overcome, and courts have held that disclosure from a reporter may only be permitted as a "last resort." See In re Grand Jury Subpoenas Served on Nat’l Broad. Co., 178 Misc.2d 1052, 1055, 683 N.Y.S.2d 708, 711 (N.Y. Sup. Ct. N.Y. Cty. 1998).
Where alternative sources for the information exist, disclosure is not permitted. Witnesses, and in some circumstances the opposing party, are alternative sources whose testimony must be sought before a journalist's testimony or resource materials will be compelled. See In re CBS Inc., 232 A.D.2d 291, 292, 648 N.Y.S.2d 443, 444 (1st Dep't 1996) ("Plainly, [plaintiff] made no efforts to identify the potential witnesses who were in the pharmacy on the date in question, nor made any other investigative efforts to obtain evidence to substantiate the anticipated professional misconduct charges against the pharmacist."). Similarly, the trial court in Brown & Williamson v. Wigand held that Mr. Wigand was himself an alternative source for the information sought by his former employer and rejected Brown & Williamson's allegations that Wigand was untrustworthy and therefore not a reliable source as "yet untried and unproven." 24 Med. L. Rep. 1720, 1724, 1996 WL 350827, *5 (N.Y. Sup. Ct. N.Y. Cty. 1996).
In Morgan Keegan & Co., Inc. v. Eavis, 37 Misc.3d 1058, 1061, 955 N.Y.S.2d 715 (N.Y. Sup. Ct. N.Y. Cty. 2012), the court quashed a subpoena of a journalist where the party seeking disclosure had failed to show that it was unable to obtain the information sought (about the journalist’s background) through other sources in the public domain, such as through the internet.
Further, in a class action seeking relief for alleged sales of residential property to African-American plaintiffs at higher prices and under more burdensome terms than would have been charged to white purchasers, the court refused to compel a non-party journalist to reveal sources for an article on the subject where the article itself and the pictures therein provided leads to obtaining discovery and where information concerning potential witnesses could also be obtained from title and mortgage records. Baker v. F & F Inv., 470 F.2d 778 (2d Cir. 1972) (applying federal law as informed by the New York and Illinois shield laws).
However, courts have found that certain sources do not count as "available" for the purposes of meeting the requirements of the three-part test for nonconfidential news. See Grand Jury Subpoenas to NBC, 178 Misc.2d 1052 (holding that outtakes were critical to an assault case and that it was not reasonable for prosecutors to first interview numerous police officers present at the time of the assault to attempt to locate eyewitnesses); People v. Combest, 4 N.Y.3d 341, 795 N.Y.S.2d 481 (N.Y. 2005) (finding that each of the three prongs were satisfied where video outtake was only recording of criminal defendant's interrogation and confession); In re Sullivan, 167 Misc. 2d 534, 635 N.Y.S.2d 437 (N.Y. Sup. Ct. Queens Cty. 1995) (the fact that all other witnesses to the interrogation gave conflicting testimony satisfied the "no alternative source" element necessary to deny motion to quash subpoena); In re Ayala, 162 Misc.2d 108 (neither arrestee nor arresting officer were alternative sources preventing disclosure of contents of journalist's videotaped interview with arresting officer even though arrestee overheard part of interview, since videotape was inherently superior to memories of arrestee and arresting officer; nevertheless, subpoena quashed for failure to meet "critical or necessary" element); People v. Craver, 150 Misc.2d 631, 569 N.Y.S.2d 859 (Cty. Ct. Albany Cty. 1990) (reporter's testimony could be compelled in murder case even though defendant had also given statements to police and made admissions by letter to victim's parents); People v. Bonie, 141 A.D.3d 401, 35 N.Y.S.3d 53 (N.Y. App. Div. 2016) (directing in camera review of unpublished video footage of reporter’s interview with murder defendant, since even if prosecution had contacted employees who were present during interview, their recollections would not have same evidentiary effect as video recording, and defendant’s actual words and demeanor were only available from the unpublished video).
The material sought must not be available from alternate sources. N.C. Gen. Stat. § 8-53.11(c)(2). In State v. Fitzgerald, 39 Media L. Rep. 2251 (N.C. Superior Ct. 2011), the trial court found that the defendant had not demonstrated that the “raw, unedited footage” could not be obtained from alternate sources. In so holding, the court focused on the substance of the information sought: “[a]lthough the actual film footage and producers’ notes sought by Defendant cannot themselves be obtained from other sources, it is the substance of the information sought that is the relevant consideration (otherwise the test would virtually always be overcome because footage and personal notes themselves would, by definition, be unavailable from an alternative source).” Id.; see also State v. Spivey, 35 Media L. Rep. 1137 (N.C. Superior Ct. 2006) (“The test, under the statute, essentially is whether the party seeking the testimony can establish the essential elements of his case, and proceed to a jury, without the journalist’s testimony.”).
The North Dakota Supreme Court has stated that availability of the information from other sources is one factor to consider in determining whether the court should order disclosure. In Grand Forks Herald v. Dist. Court in and for Grand Forks Cnty., 322 N.W.2d 850 (N.D. 1982), the court appeared especially concerned with this factor. The final ruling in the case was based on the fact that the plaintiff in a car accident had no other access to photographs of the accident scene. Additionally, the court said that the fact that the plaintiff did not have other evidentiary options available, and because the Herald published one of the photographs of the accent scene, then the media would not suffer from a chilling effect, and failure to disclose the photographs would result in a miscarriage of justice.
Alternative means of obtaining the information must have been exhausted. It has been our experience that trial courts treat this element as demanding. Unless the party seeking the information has unsuccessfully explored virtually every other means to obtain the information, the court will not compel its disclosure from the journalist. The most frequent circumstance we confront is the request for raw video and the testimony of a television reporter who has observed the scene of a crime, fire, or accident that later is the subject of litigation. We frequently succeed in quashing subpoenas on the ground that there were a multitude of witnesses to the event, including police or fire officials, who are as capable as the reporter (or more so) to testify about what they observed.
The existence of evidence not protected by the shield law which can prove the same point is a factor that weighs against a criminal defendant's subpoena. State ex rel. Meyer v. Howell, 86 Or. App. 570, 579, 740 P.2d 792, 797 (1987). There are no such considerations in civil matters and the privilege has been upheld even when no other material is available. McNabb v. Oregonian Publishing Co., 69 Or. App. 136, 685 P.2d 458 (1984).
Under the Pennsylvania Shield Law, whether the information is available from other sources is irrelevant to the applicability of the privilege. See Davis v. Glanton, 705 A.2d 879, 884-85 (Pa. Super. 1997).
A party can overcome the First Amendment privilege by making a “strong showing that [the information desired] cannot be obtained by alternative means.” Glanton, 705 A.2d at 882; see also Riley v. City of Chester, 612 F.2d 708, 716 (3d Cir. 1979) (requiring a “strong showing by those seeking to elicit the information that there is no other source for the information requested”). The party seeking disclosure must establish that the reporter’s materials are “the only source” of the information desired and that “it would be futile to seek [the information] elsewhere.” Glanton, 705 A.2d at 885-86; see also United States v. Criden, 633 F.2d 346, 359 (3d Cir. 1980) (moving party “must demonstrate that the only access to the information sought is through the journalist and her sources”); United States v. Cuthbertson (Cuthbertson I), 630 F.2d 139, 148 (3d Cir. 1980) (moving party must “show that he is unable to acquire the information from another source that does not enjoy the protection of the privilege”). To this end, courts have required the subpoenaing party to “show that his only practical access to crucial information necessary for the development of the case is through the newsman’s sources,” Riley, 612 F.2d at 717 (internal quotation omitted), and that the only access to the information sought is through the journalist and her resources. Commonwealth v. Bowden, 838 A.2d 740, 755 (Pa. 2003).
The inquiry into whether material is unavailable from other sources is fact-sensitive. In Bowden, the Pennsylvania Supreme Court found that the sole alternative source, a criminal defendant on trial for murder, was “not an acceptable source for the information, not only because it is his own credibility that is at issue, but also because his statements, as they appear in the reporters’ notes, are by their very nature unique.” Id. at 756 (quoting Cuthbertson I, 630 F.2d at 148). Consequently, the court held, it was “unnecessary” for the prosecutor “to attempt to seek [the defendant’s] statements elsewhere, as any such effort would have been futile.” Id. On the other hand, in McMenamin v. Tartaglione, the Pennsylvania Commonwealth Court held that the First Amendment privilege barred the plaintiff from compelling a reporter to testify about statements made by a mayoral candidate at a press conference. See 590 A.2d 802, 811 (Pa. Commw. 1991), aff’d without op., 590 A.2d 753 (Pa. 1991). The court noted that although the statements may have been “material, relevant, necessary and perhaps crucial,” people other than the reporter could have testified about the candidate’s statements. Id.
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.
The party seeking to compel testimony or production must show that it "cannot be reasonably obtained by alternative means." This exhaustion hurdle is often the basis for a favorable ruling on the motion to quash because many of those seeking to compel testimony or production have made no effort to identify an alternative source for what is sought.
This is one of the five factors in Hopewell. The party seeking to compel disclosure "must exhaust all alternative methods of getting the information."
The subpoenaing party must prove, by clear and convincing evidence, that the information sought cannot reasonably be obtained by alternative means. Tenn. Code Ann. § 24-1-208(c).
In one federal case arising under Tennessee law, the court denied a defendant's demand for an opportunity to depose a news reporter because the subpoenaing party had not proven that the information sought could not be obtained elsewhere. Moore v. Domino's Pizza, L.L.C., 199 F.R.D. 598 (W.D. Tenn. 2000). The district court noted that no attempt had been made to depose the plaintiffs, who had the information defendants sought from the reporter. In addition, court records indicated that other sources of the same information, besides plaintiffs, might be available. Thus, the privilege could not be overcome. Id. at 600-01.
In another case, the Tennessee Supreme Court held that a prosecutor had failed to prove by clear and convincing evidence that alternative means had not been tested before he subpoenaed a radio newscaster to give "general information" before a grand jury investigating a murder. State ex rel. Gerbitz v. Curriden, 738 S.W.2d 192 (Tenn. 1987). The prosecutor had given "no explanation of what information was sought from [the reporter] or what other efforts, if any, the Attorney General or other law enforcement agencies had made to determine the identity of the criminal offense, the offender himself, or the site of the offense." Id. at 193. In addition, the court noted, "[n]o investigation or inquiry by [county] officials with officials from surrounding counties appears to have been made, nor has any check of prison or parole records been shown." Id. Thus, because alternative methods of obtaining information had not been tried, the reporter was protected by the privilege. Id.
Another Tennessee case has held that, when the source of a news report admits the statements attributed to them in all material respects, the plaintiff will likely "fail to show that there is probable cause to believe that the subpoenaed reporter has information which is relevant and which cannot be obtained by alternative means." See Dingman v. Harvell, 814 S.W.2d 362 (Tenn. Ct. App. 1991); see also State v. Clark, No. E2016-01629-COA-R3-CV, 2017 WL 564888, 2017 Tenn. App. LEXIS 100, 45 Med. L. Rptr. 1321 (Tenn. Ct. App. Feb. 13, 2017) (upholding denial of state’s motion to divest protection in criminal case because state failed to prove information could not be obtained by alternative means).
Under the civil statute and the criminal statute regarding unpublished information and nonconfidential sources, the subpoenaing party must make a clear and specific showing that “all reasonable efforts have been exhausted to obtain the information from alternative sources.” Under the criminal statute concerning confidential sources, the subpoenaing party generally must only show that “the subpoenaing party has exhausted reasonable efforts to obtain from alternative sources the confidential source of any information, document, or item obtained or prepared while acting as a journalist.” Tex. Code Crim. Proc. art. 38.11§4(a)(1)(2)(3). This requirement does not apply to criminal subpoenas for confidential source information when disclosure of the confidential source is reasonably necessary to stop or prevent reasonably certain death or substantial bodily harm. Tex. Code Crim. Proc. art. 38.11, §4(a)(4). But, due to the fact that the statute was only recently adopted, there are no reported decisions yet on what constitutes “unavailable” under the statute. Pre-statute, courts looked to whether the information or material was unavailable from other sources (the second prong of the test outlined by Justice Powell in Branzburg), without providing much guidance as to how that factor should be determined.
In one case that provides some guidance, Campbell v. Klevenhagen, 760 F. Supp. 1206 (S.D. Tex. 1991), the court found that a state court's order compelling four reporters to appear at a criminal trial and remain on call throughout the trial in order to identify possible witnesses to a crime violated the First Amendment press freedoms more than it enforced the criminal defendant’s Sixth Amendment right to compel witness testimony. Id. at 1211-14.
The Advisory Committee Note to Rule 509 cites Silkwood v. Kerr-McGee Corp., 563 F.2d 433 (10th Cir. 1977), for the principle that, in balancing the interests, the court should consider “whether the party seeking the information has attempted independently to obtain the information.” Utah R. Evid. 509 advisory committee note (2008). Prior to adoption of Rule 509, several Utah trial courts applied the Silkwood factors and found the existence of alternative sources to be a convenient way to avoid compelling reporters to testify in court. For example, one state trial judge found a published newspaper article along with an affidavit from the reporter authenticating the article to be “an adequate and sufficient alternative form for the testimony sought by the State” in a murder prosecution. State v. Koolmo, No. 981905396 (Utah 3d Dist. Ct. March 29, 1999). Another trial court found that a criminal defendant's publicly available written statement, which was identical to the defendant's televised reading of the statement sought by prosecutors, was an appropriate alternative. State v. Michaels, No. 011902114 (Utah 3d Dist. Ct. July 9, 2001). In that case, the court relied on the alternative source analysis to quash the subpoena despite finding that the information sought was relevant and went to the heart of the matter.
However, one Utah trial court required a newspaper reporter to comply with a subpoena seeking her testimony at the preliminary hearing of a murder defendant even though the information sought from the reporter was available from other sources. State v. Martinez, No. 011501042 (Utah 5th Dist. Ct. April 29, 2002). In that case, the defendant had been accused of stabbing a barber to death with scissors after taking $200. From jail, the defendant sent confession letters to a newspaper reporter and the victim's wife. The defendant also reportedly confessed, at least in part, to police investigators. Nevertheless, the trial court neglected to consider the alternative sources and reasoned that the prosecution's interest in putting on its evidence as it saw fit at a preliminary hearing outweighed the reporter's privilege. The reporter testified at the preliminary hearing, but the defendant entered a guilty plea before trial.
In another case involving a published news article, a trial court concluded that there was “more evidentiary value from sworn testimony than from the news article alone.” In re: Inquiry of the State Ballot Law Commission of the State of Massachusetts, No. 020905264 (Utah 3d Dist. Ct. June 25, 2002). Consequently, the court ordered the reporter to provide her sworn testimony via affidavit concerning whether the source said what the reporter attributed to the source in the article. Id.
Following adoption of Rule 509, a magistrate judge confronted the issue again in the civil rights case Wood v. Farmington City, No. 2:10-CV-933-DB-PMW, 2011 WL 5834430, at *2 (D. Utah Nov. 21, 2011). In Wood, the court considered whether to quash the subpoena of a Salt Lake City newspaper reporter who witnessed and photographed a police standoff that ended in the death of the plaintiff. Id. The reporter was one of four total eye witnesses. Although the court did not apply Rule 509, it did apply the Silkwood factors and considered whether material was unavailable from other eye witness sources. The court concluded that the depositions of the other eye witnesses “weigh[ed] against the existence of the qualified privilege” but ultimately held the other two factors—i.e., that the evidence goes to the heart of the case and is highly relevant—weighed against the existence of the privilege. Id. at *3. The magistrate judge went on to explain that he was “not convinced that other sources are more apt to have relevant information” because the reporter was “the sole witness of the standoff who [was] not affiliated with either Plaintiffs or the police involved in the standoff” and “had the best vantage point of the standoff and viewed it through both a camera with a zoom lens and a spotting scope.” Id. Thus, the court declined to quash the subpoena. See id.
The Vermont Shield Law permits compelled disclosure of journalistic materials only where the party seeking information from a journalist demonstrates that all other available sources of the information sought have been exhausted. 12 V.S.A. § 1616(b)(2)(A)(ii). The statute requires a showing that the evidence requested by the requesting party “could not, with due diligence, be obtained by alternative means.” Id.
The second prong of the three-part test is that the material sought must be unobtainable by alternative means. See Marathon Res. Mgmt. Grp., LLC v. Fresh Cuts Lawn Care, Inc., No. CL19-5973, 104 Va. Cir. 266, 267 (Richmond Feb. 21, 2020) (quashing a subpoena seeking a reporter’s testimony regarding the contents of a voicemail that the defendant left on her phone where the same information could be obtained through the defendant’s testimony); Philip Morris Cos. v. Am. Broad. Co., 36 Va. Cir. 1 (Richmond 1994); United States v. Sterling, 724 F.3d 482, 506-08 (4th Cir. 2013) (refusing to quash a subpoena to a reporter to testify about the source of classified information received by the reporter in a criminal case against a former CIA officer and noting that circumstantial evidence is not a substitute for direct evidence relevant to the proceeding); Church of Scientology Int’l v. Daniels, 992 F.2d 1329 (4th Cir. 1993) (affirming denial of motion to compel where, among other things, the plaintiff in a defamation action had made no effort to pursue alternative sources for the information requested in discovery); LaRouche v. Nat’l Broad. Co., 780 F.2d 1134 (4th Cir. 1986) (applying privilege to protect confidential sources in a defamation action where plaintiff in a defamation had not exhausted other alternative sources for the information); Riddick v. Watson, No. 2:19cv363 (E.D. Va. June 29, 2020) (applying privilege to protect reporter’s interview notes where the plaintiff failed to show that the information could not be obtained through an interview or deposition of the person interviewed); Alexis v. Kamras, No. 3:19CV543, 2020 WL 2616705 (E.D. Va. May 22, 2020) (denying motion to quash a subpoena for interview recording where the media organization was the only entity in possession of the recording, the recording could not be obtained from another source, and deposing the interviewee would not be an equivalent substitute for the recording); Waddle v. Claughton, No. 4:18-cv-10, 2019 WL 1049388 (W.D. Va. Sept. 4, 2018) (granting motion to quash subpoena seeking to depose reporter about circumstances under which defendant made allegedly defamatory statements where the plaintiff had not attempted to obtain the same information by deposing the defendant); Gilbertson v. Jones, Civil No. 3:16cv255, 2016 WL 6518659 (E.D. Va. Sept. 22, 2016) (denying motion to quash subpoena seeking materials related to statements made by a defamation defendant where the context of the statements were at issue and materials were not available from other sources); Bischoff v. United States, No. 2:96CV923, 1996 WL 807391 (E.D. Va. Sept. 20, 1996) (quashing subpoena in civil case alleging that the government provided confidential tax information to a reporter where the plaintiffs had made no effort to identify the source through other means).
Under the common law case law concerning confidential sources: "Even when the information is critical and necessary to plaintiff's case, the plaintiff must exhaust reasonably available alternative sources before a reporter is compelled to disclose." Senear, 97 Wn.2d at 155 (confidential source case).
Section 1(a) of the shield statute provides for an absolute privilege regarding confidential sources. Section 2(b)(1) of the statute, which involves the conditional privilege for non-confidential journalist work product, requires the proponent of disclosure to prove that he or she "has exhausted all reasonable and available means to obtain it from other sources." See RCW 5.68.010(1), (2).
The requested material must not be obtainable from other available sources. Ranson, 488 S.E.2d 5; Hudok, 389 S.E.2d 188. The court in Hudok, recognized there may be a situation where a newsperson is the only individual with credible evidence bearing upon an important issue in a civil case. Consequently, "there may be no alternative under principles of due process other than to require such testimony." 389 S.E.2d at 193. The court explained that "[t]his narrow rule is justified by the fact that the media is given broad access to accident scenes as well as to the inner offices of government buildings and other places where they may be the only witnesses to a crucial statement or event." Id.