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3. Agreement to partially testify act as waiver?

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  • 10th Circuit

    There is no case law discussing the contours of waiver of the reporters privilege.

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  • 1st Circuit

    There is no reported First Circuit decision specifically addressing this issue.

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  • 2nd Circuit

    There do not appear to be any cases that specifically state whether the privilege is waived if the reporter agrees to partially testify -- for example, to confirm that the story as published is accurate and true.

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  • 3rd Circuit

    District courts have at least suggested that partial testimony and even voluntary appearances at depositions do not waive the privilege. See, e.g., Damiano, 168 F.R.D. at 498-99; Sklar, 752 F. Supp. at 1267.

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  • 4th Circuit

    There is no statutory or case law in the Fourth Circuit addressing this issue.

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  • 5th Circuit

    In Selcraig, the Fifth Circuit considered a case in which a reporter partially testified. In re Selcraig, 705 F.2d 789 (5th Cir. 1983). The reporter had learned about a controversy involving the plaintiff from a confidential source. Id. at 792. The reporter interviewed the plaintiff's employers to confirm the information he had learned from his confidential source and thereafter published an article about the controversy involving the plaintiff. Id. In a subsequent civil lawsuit between the plaintiff and his employers, the reporter was subpoenaed to be deposed. Id. at 794. The reporter appeared at his deposition and freely admitted that he had interviewed the plaintiff's employers and had based his article in part on those interviews. Id. He refused, however, to identify the confidential source from whom he had learned about the controversy in the first place, claiming that the qualified reporter's privilege protected that information. Id. The Fifth Circuit agreed. As such, although Selcraig did not involve a reporter's partial disclosure of information obtained from the confidential source, it involved the reporter's disclosure of information obtained as a result of the information provided by that confidential source. The Fifth Circuit did not indicate that this kind of partial disclosure endangered the right of the reporter to invoke the privilege to protect the identity of the confidential source.

    Similarly, in Brinston v. Dunn, a district court held that it was "proper to require . . . [a reporter] to answer questions regarding the truthfulness and accuracy of the contents of the article he authored, including whether statements attributed to the plaintiff in the article were in fact made by the plaintiff" without violating the privilege. 919 F. Supp. 240, 244 (S.D. Miss. 1996). Yet the district court upheld the assertion of privilege as to questions seeking to compel disclosure of the reporter's unpublished work product. Id. Thus, taken together the district court's rulings implicitly recognize that the partial testimony of the reporter about the accuracy of his article does not waive his right to assert the privilege against questions seeking information the reporter wishes to protect.

    Providing information in response to grand jury subpoena as waiver. A district court has suggested that providing (potentially) privileged information in response to grand jury subpoenas does not necessarily operate as a waiver of the privilege. See United States v. Valencia, 2006 WL 3707867, at *10 (S.D. Tex. 2006) (“The Court is unpersuaded that the limited disclosures permitted here will undermine any genuine interest the Publishers might have in protecting their data and sources in other civil proceedings.”).

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  • 6th Circuit

    There is no statutory or case law addressing this issue.

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  • 7th Circuit

    No case has addressed the situation in which a reporter agrees to partially testify. It appears a reporter can be ordered to partially testify without waiving the privilege as to other aspects of his or her information. See Liebhard v. Square D Co., No. 91 C 1103, 1992 WL 193558, at *3 (N.D. Ill. Aug. 4, 1992) (instructing reporter to testify on some issues and not on issues such as the editorial process); see also United States v. Hale, No. 03 CR 11, 2004 WL 1123796 at *1 - *3, (N.D. Ind. April 14, 2004; United States v. Bingham, 765 F. Supp. 954, 956 (N.D. Ill. 1991) (transcript of outtakes of videotape given to party seeking tapes sua sponte, but no waiver of privilege).

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  • 8th Circuit

    No Eighth Circuit case law addresses this issue in the context of the reporter's privilege, except Doe v. Young, 664 F.3d 727 (8th Cir. 2011).  In that case, the court held that a voluntary waiver of the privilege meant that an additional proffer of testimony by a reporter could not be excluded as a discovery sanction or to prevent unfair surprise.

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  • 9th Circuit

    There is no statutory or case law addressing this issue.

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  • Alabama

    There is no Alabama statutory or reported case law addressing whether an agreement to partially testify acts as a waiver of the reporter's privilege.

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  • Alaska

    Alaska appellate courts have not had occasion to squarely address the existence or scope of a reporter's privilege. Various trial courts have recognized and applied the qualified constitutional privilege, and in doing so have not articulated circumstances constituting waiver of the privilege or standards for determining that the privilege has been deemed waived. In some instances, by agreement of the parties and counsel for the subpoenaed reporter, a reporter has confirmed that the story as published is accurate. The agreement assumes that the reporter will not be subject to cross-examination going beyond this confirmation. Further, we would agree only to have the reporter confirm accuracy, rather than truth, since the latter is likely to be outside his or her personal knowledge. Courts have not had occasion to rule on whether partial testimony to confirm accuracy or truth of a story, in the absence of such agreement, would constitute a waiver of the privilege.  In a 2018 legislative ethics committee hearing, a reporter effectively waived the right to assert privilege and did not oppose being called as a witness, in a unique circumstance where she was the central witness because the alleged ethics violation was the legislator’s disclosure to her of confidential information in the course of an interview. after which the reporter identified the legislator in an attempt to verify the information provided. An implicit waiver of any applicable privilege was assumed by all.

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  • Arizona

    There is no statutory or case law addressing this issue.

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  • Arkansas

    There are no cases in which the Arkansas Supreme Court has addressed whether a reporter's agreement to provide limited testimony is deemed a waiver of the privilege. Trial court judges usually require a subpoenaed reporter to confirm that the reporter's article is true and accurate as published but will not permit any party to question the reporter beyond that point, and the testimony required by the trial judge is not deemed to be a waiver of the privilege.

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  • California

    An agreement to testify will not waive the privilege as to any information not actually divulged. California Code of Civil Procedure § 1986.1 provides in part:

    No testimony or other evidence given by a journalist under subpoena in a civil or criminal proceeding may be construed as a waiver of the immunity rights provided by subdivision (b) of Section 2 of Article I of the California Constitution.

    Cal. Code Civ. Proc. § 1986.1(a).

    In addition, relying on the language of the shield laws, one court explained that:

    Direct testimony regarding published information cannot constitute a waiver of the right to refuse to disclose related information that is unpublished because the shield law explicitly provides that unpublished information remains protected “whether or not related information has been disseminated.”

    Fost v. Superior Court, 80 Cal. App. 4th 724, 735, 95 Cal. Rptr. 2d 620 (2000). See also Playboy Enterprises, Inc. v. Superior Court, 154 Cal. App. 3d 14, 23, 201 Cal. Rptr. 207 (1984) (rejecting argument that privilege waived because virtually identical information published).

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  • Colorado

    If a newsperson agrees to testify, the privilege is waived only as to the information provided during the testimony. C.R.S. § 13-90-119(4) (emphasis added).

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  • Connecticut

    There is no case law specifically and separately addressing waiver of a reporter's privilege in Connecticut. The general law of waiver presumably applies, requiring knowledge of the privilege and a conscious, knowing and intentional waiver of it.

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  • D.C. Cir.

    No statutory or case law addressing this issue exists.

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  • Delaware

    This has not been litigated. But, by waiving her privilege with respect to certain facts a reporter does not waive the privilege with regard to other facts for which she continues to claim the privilege. 10 Del. C. § 4325.

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  • District of Columbia

    The plain language of the statute suggests that an agreement to partially testify should not constitute a waiver.  See D.C. Code § 16-4704.

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  • Florida

    If the reporter testifies in court concerning privileged information, the privilege likely is deemed waived as to the information revealed. See News-Journal v. Carson, 741 So. 2d 572, 574 (Fla. 5th DCA 1999) (journalist waived privilege by providing affidavit).

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  • Georgia

    No Georgia court has addressed the specific issue of whether an agreement to testify as to a limited issue would be deemed a waiver of the privilege generally. However, Georgia law is generally hostile to arguments asserting waiver. See, e.g., Kennestone Hosp. v. Hopson, 273 Ga. 145 (2000). Moreover, publication of "part of the information gathered does not waive the privilege as to all of the information gathered on the same subject matter because it 'would chill the free flow of information to the public.'" In re Paul, 270 Ga. 680, 686 (1999).

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  • Hawaii

    There are no reported cases.

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  • Idaho

    It is unlikely that, in the absence of a shield statute, an Idaho court will ever rule that the reporter's privilege protects against a requirement that a media witness confirm that a particular story was printed, or a particular broadcast was made. Therefore, it is similarly unlikely that such testimony would be construed to waive the privilege as to such matters that the court might contemporaneously rule are covered by the privilege.

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  • Illinois

    There is no Illinois statutory or case law addressing this issue.

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  • Indiana

    There is no statutory or case law on this issue.

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  • Iowa

    No reported cases address this issue.

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  • Kansas

    There is no statutory or case law addressing this issue.

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  • Kentucky

    There are no reported decisions on point. As a practical matter, however, it is common for a journalist to testify as to the accuracy of information without there being a claim that the privilege has been waived.

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  • Louisiana

    There is no statutory language or Louisiana case law addressing this issue.

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  • Maine

    The Maine course have not addressed the issue of whether an agreement to partially testify may act as a waiver.

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  • Maryland

    Maryland cases do not address whether a reporter's agreement to partially testify results in waiver of the privilege. If disclosure in the media does not constitute waiver, then partial testimony should not constitute waiver, especially as to source identity. Also, because Maryland has historically shown a strong commitment to freedom of the press, such partial testimony is not likely to result in waiver of the privilege. See Telnikoff v. Matusevitch, 702 A.2d 230, 25 Media L. Rep. 2473 (Md. 1997).

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  • Massachusetts

    There is no case law discussing waiver of the privilege, but reporters have agreed to testify while asserting the privilege not to disclose confidential sources, with varying results. See Commonwealth v. Corsetti, 438 N.E.2d 805 (Mass. 1982); In re Roche, 411 N.E.2d 466 (Mass. 1980); Superior Court, Dow Jones & Co. v. 303 N.E.2d 847 (Mass. 1973); In re Pappas, 266 N.E.2d 297 (Mass. 1971); Hanify v. Jacobs, News Media and the Law, June-July 1982 (Mass. Super. Ct. 1982).

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  • Michigan

    There have been no appellate cases discussing this precise issue.

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  • Minnesota

    Under the logic discussed in the previous sections, partial disclosure of information would not constitute a waiver of any privilege for any information other than what has been disclosed.

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  • Mississippi

    There is no statutory or case law addressing this issue.

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  • Montana

    Partial dissemination is not waiver unless the reporter intends it to be so.

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  • Nebraska

    Since information actually published or broadcast is not protected, testimony to confirm publication of information and its accuracy will not waive privilege as to other, unpublished or non-broadcast information.

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  • New Hampshire

    There is no statutory or case law addressing this issue. See C.1 above.

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  • New Jersey

    If a newsperson agrees to partially testify, for example that the article is accurate, such testimony acts as a waiver. The court has held that if the reporter testifies the right of cross examination could not be limited and an effective cross examination would necessarily inquire further into the information held by the newsperson. In re Schuman, 114 NJ 14 (1989).

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  • New Mexico

    No New Mexico law specifically addresses this issue. But it seems unlikely that a reporter’s testimony to the effect that her story was true and accurate as published would work a waiver of her privilege not to identify her confidential sources or to disclose the confidential information that remained unpublished. Cf., e.g., Pub. Serv. Co. v. Lyons, 2000-NMCA-077, ¶¶ 1, 22, 129 N.M. 487, 10 P.3d 166 (holding that under Rule 11-511, party cannot “implicitly” waive attorney-client privilege by pleading claims to which privileged communications might be relevant, but instead must make “offensive or direct use of [the] privileged materials”).

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  • North Carolina

    No North Carolina case has addressed whether when the reporter agrees to partially testify—such as to confirm that the story is accurate and true as published—the privilege is deemed waived. Such "partial testimony" is not inconsistent with the protections of the shield law, but the more a journalist says on the witness stand the greater the likelihood that a trial judge would conclude that a journalist has waived the privilege.

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  • North Dakota

    There is no applicable case law on this question.

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  • Oklahoma

    There are no Oklahoma cases discussing this issue.

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  • Oregon

    No statutory or case law addressing this issue.

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  • Pennsylvania

    Waiver of the Shield Law protections is limited only to the information “actually published or publicly disclosed . . . .” In re Taylor, 193 A.2d 181, 186 (Pa. 1963). Accordingly, if a reporter testifies to limited information, the privilege is deemed waived only as to the information actually disclosed in that testimony and not to the identity of the source. See In re Cty. Investigating Grand Jury VIII, 2003, 2005 WL 3985351, at *12 (Lackawanna Cty. C.C.P. Oct. 25, 2005) (noting that Shield Law was not implicated because reporter “voluntarily disclosed the sources for the information contained” in her articles to a special prosecutor).

    There is no Pennsylvania case law addressing waiver of the First Amendment reporter’s privilege by agreement to partially testify.

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  • Rhode Island

    There are no cases or statutes on point. However, in Fischer v. McGowan, 585 F. Supp. 978 (D.R.I. 1984), plaintiffs sought to compel disclosure of certain unnamed sources of an allegedly libelous article in an Australian newspaper about the financial troubles of an America's Cup yacht. The author of the article, who had not been named as a defendant, claimed privilege and moved to quash. Drawing on decisions from other jurisdictions, the court found that the reporter had not waived his privileges under the shield law by disclosing some of his sources or by providing a generic description of the undisclosed sources.

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  • South Carolina

    It is not a good practice to let reporters talk to lawyers about the scope of their testimony. Any discussion by the reporter might provide a basis to challenge the claim of privilege. If the issue is the confirmation of publication, there is no need for such testimony because newspapers and other periodicals are self-authenticating documents under the South Carolina Rules of Evidence. As for whether or not the story is true, there are likely other sources besides the reporter to testify on that point so the exhaustion requirement cannot be met.

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  • South Dakota

    There is no pertinent case law on this issue.

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  • Tennessee

    There is no statutory or case law on this issue.

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  • Texas

    To date, there is no case law determining under what conditions the statutory privilege can be waived.

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  • Utah

    There is no statutory or case law addressing this issue.

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  • Vermont

    The Vermont Shield Law states that “[t]he publication or dissemination of news or information shall not constitute a waiver of the protection from compelled disclosure. . . .”  12 V.S.A. § § 1615(c).  Arguably, the “publication or dissemination” language of the statute would be broad enough to encompass an agreement to partially testify and thus, would not constitute a waiver.  There are, however, no reported Vermont cases discussing whether an agreement to partially testify would constitute a waiver of the reporter’s privilege.

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  • Virginia

    There is no case law addressing whether a reporter’s agreement to partially testify serves to waive the privilege.

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  • Washington

    Washington's case law has not yet squarely addressed this issue.

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  • West Virginia

    There is no West Virginia caselaw or statute addressing whether a journalist may be deemed to have waived the privilege. Because the privilege is constitutional in nature, it is likely the privilege may never be deemed to have been waived.

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  • Wisconsin

    It is unclear whether a reporter’s agreement to partially testify would waive the privilege.  The privilege is not waived by “disclosure to another person or dissemination to the public,” Wis. Stat. § 885.14(4), which may be broad enough to encompass an agreement to partially testify.

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  • Wyoming

    Not applicable.

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