3. Balancing of interests
In both criminal and civil matters, the First Circuit courts engage in a balancing test, weighing the moving party’s asserted need for the information against the media’s First Amendment concerns in keeping the information confidential. Some of the factors which the court will consider in determining the moving party’s need for the information include: (1) the relevancy and importance of the information; (2) whether the information is otherwise obtainable by alternative methods; (3) whether the moving party cannot properly prepare for trial without this information; and (4) whether the application is made in good faith and not intended as a general “fishing expedition.” United States v. LaRouche Campaign, 841 F.2d 1176, 1179 (1st Cir. 1988). The court will also consider the following factors concerning the subpoenaed party’s First Amendment interests: (1) the chilling effect on the free flow of information between reporters and their sources; (2) the intrusion of government interfering with the newsgathering process; (3) the threat of turning journalists into “an investigative arm of the judicial system”; (4) the potential disincentive for the media to compile and preserve investigative material; and (5) the burden on reporters’ time and resources in responding to subpoenas. Id. at 1182.
In analyzing whether subpoenaed information is protected by the reporter's privilege, district courts in the Second Circuit had at times considered factors beyond those in the three-part Burke and Gonzales tests. For example, in Aequitron Med., Inc., a district court held that the privilege is weaker in a libel case against a media defendant where the plaintiff seeks non-confidential information. Without receiving information about confidential sources and the journalistic process it becomes very difficult for a libel plaintiff to prove actual malice, i.e., to establish that the defendant had knowledge or reckless disregard of the statement's falsity. Aequitron Med., Inc. v. CBS, Inc., 93 Civ. 950 (DC), 1995 U.S. Dist. LEXIS 9485 (S.D.N.Y. July 10, 1995). However, the Second Circuit held in U.S. v. Treacy that in the context of the Gonzales test, such balancing constituted error. 639 F.3d 32 (2d Cir. 2011) (“The district court committed an error of law when, instead of applying the test we set forth in Gonzales to evaluate Treacy's need for Forelle's answers, it treated Forelle's interest as a competing interest to be balanced against Treacy's Confrontation Clause rights.”).
The Third Circuit employs a three-part test to determine whether a person seeking disclosure from a journalist has overcome the privilege: Such a person must make specific showings that the information sought is material, relevant and necessary to the party's claims or defenses. See, e.g., Riley, 612 F.2d at 716. Specifically, the party seeking disclosure must show there is no other practical way of accessing the information, all other potential sources have been exhausted, and the information is crucial to the party’s claims or defenses. See, e.g., id. at 716-17. Ultimately, whether these elements have been sufficiently established will depend upon a balancing test in which the courts weigh the relative interests of the reporter with the interests of the party seeking disclosure. See, e.g., id. Thus, for example, a criminal defendant whose constitutional right to a fair trial is implicated by a request for disclosure will likely not need to make as great a showing to overcome the privilege as would a civil litigant whose constitutional rights were not implicated.
On the reporter's side, courts in the Third Circuit have identified several interests at stake where disclosure is sought. Courts often emphasize the importance of First Amendment-based protection for newsgathering, which protects the free flow of information and news to the public. See, e.g., Riley, 612 F.2d at 714-18; Nat'l Talent Assocs., Inc., 1997 WL 829176, at *1; Smith, 2011 WL 2115841, at *4. Protecting confidential sources has been described as vital to this process. Without the privilege, sources would be less willing to provide information for fear of retribution or embarrassment. Criden, 633 F.2d at 355-56; Riley, 612 F.2d at 714; Transcript of January 22, 2016 Hearing at 38:15-25, In re: Molycorp, Inc., No. 15-11357 (CSS) (Bankr. D. Del.), ECF No. 1105.
On the subpoenaing party's side, courts in the Third Circuit have identified a number of countervailing interests that might be at stake in any particular case. Weighing most heavily in favor of disclosure are the rights of criminal defendants. These constitutional interests include the guarantees both of due process (pursuant to the Fifth and/or Fourteenth Amendments),the Sixth Amendment's compulsory process/confrontation clauses, and the protection of the integrity of court orders and processes. Criden, 633 F.2d at 355-56; United States v. Cuthbertson I, 630 F.2d at 146-47; Parsons, 778 F. Supp. at 217-18;Transcript of January 22, 2016 Hearing at 35:2-6, In re: Molycorp, Inc., No. 15-11357 (CSS) (Bankr. D. Del.), ECF No. 1105. In the grand jury context, courts also have recognized as a countervailing interest the public interest in investigating crimes. In re Grand Jury Subpoena of Williams, 766 F. Supp. at 369 (suggesting that grand jury investigation may "rise to the level of a countervailing constitutional concern").
In determining when the interests of the subpoenaing party overcome the privilege, courts in the Third Circuit focus on the specific facts of the case. In almost every civil case, however, the First Amendment interests of the reporter have been held to outweigh the interests of the party seeking information. In criminal cases, however, the courts have explained that First Amendment rights do not automatically trump the constitutional rights of the defendant. Criden, 633 F.2d at 357; see also Cuthbertson I, 630 F.2d at 147 (explaining that the framers "did not undertake to assign priorities as between First Amendment and Sixth Amendment rights, ranking one as superior to the other" (citation omitted)).
The third branch of the Fourth Circuit’s LaRouche test is “whether there is a compelling interest in the information,” but in practice, the court determines whether the subpoenaing party’s interest is sufficiently compelling by weighing it against the countervailing interests in protecting sources and information. Frequently, the analysis of the subpoenaing party’s interest is conflated with discussion of the other LaRouche factors. For example, no compelling interest was found in Penland largely because the information sought was deemed not relevant. 922 F. Supp. at 1084. By contrast, in Stickels v. General Rental Co., defendant’s compelling interest in obtaining the photos seemed largely based on their relevance. 750 F. Supp. 729, 732, 18 Media L. Rep. 1644 (E.D. Va. 1990). In addition, in criminal cases a defendant’s constitutional rights to a fair trial and confrontation of the accuser are deemed compelling, as is the prosecution’s law enforcement interest. United States v. King, 194 F.R.D. 569, 585 (E.D. Va. 2000).
Relevant countervailing interests include the reporter’s First Amendment interests, see Ashcraft, 218 F.3d at 288 n.12, and the public’s interest in the free flow of information, Miller, 602 F. Supp. at 679-80 (holding information will be released under seal to protect public’s interest).
The Fifth Circuit has rejected a balancing of interests when determining whether to quash a subpoena for non-confidential materials sought in grand jury proceedings or criminal cases. United States v. Smith, 135 F.3d 963, 968 (5th Cir. 1998). According to Smith, Branzburg holds that "the needs of the press are not to be weighed against the needs of the government in considering grand jury subpoenas." Id.
In civil cases, however, the courts will often balance First Amendment interests against the subpoenaing party's interest in obtaining the testimony or material from the reporter. In Holland v. Centennial Homes, the court weighed the constitutional protections of the First Amendment against the interests favoring liberal discovery. 1993 WL 755590, at *3 (N.D. Tex. Dec. 21, 1993). It concluded that, in the absence of some compelling concern, the reporter's interest in protecting her work product outweighed any other interests. Id. at *6. In Miller, the court considered the difficulty the press might have in obtaining news if required to identify confidential sources. Miller v. Transamerican Press Inc., 621 F.2d 721, 725, as modified, 628 F.2d 932 (5th Cir. 1980). In Mize v. McGraw-Hill Inc., 86 F.R.D. 1 (S.D. Tex. 1980), the court weighed the confidentiality of the sources against the plaintiff's interest in disclosure of the sources. Id. at 3. In its analysis, it determined that the "ready disclosure of confidential sources would have a chilling, perhaps freezing effect on the free flow of truthful information." Id. According to the Mize court, the interest in protecting confidential sources is greater than the interest in protecting discovery of the editorial process, which the Supreme Court allowed in Herbert v. Lando, 441 U.S. 153 (1979). Mize, 86 F.R.D. at 3. Considering whether the relevant information could be obtained by other means may also be a part of balancing these interests. See Porter v. Dauthier, No. 14-41, 2014 WL 6674468, at *5 (M.D. La. Nov. 25, 2014).
The elements required for overcoming First Amendment protection represent a judicial balancing of interests. Thus, the court considers the degree to which the subpoenaed information is relevant, the efforts made to obtain the information without disrupting the press, and the potential harm likely to result if the press must comply with the subpoena. Southwell v. Southern Poverty Law Ctr., 949 F.Supp. 1303 (W.D. Mich. 1996).
Sixth Circuit district courts have also applied a four part test derived from In re Grand Jury Proceedings. Where 1) the reporter is not being harassed, 2) the information is being sought in good faith, 3) the information has more than a remote or tenuous relationship with the case, and 4) there is a legitimate need for disclosure, the reporter can't block compelled disclosure of information. Lentz v. City of Cleveland, 410 F. Supp. 2d 673 (N.D. Ohio 2006); Hade v. City of Fremont, 233 F. Supp. 2d 884 (N.D. Ohio 2002).
A Sixth Circuit district court found that the reporters did not have to disclose information from, or names of, confidential sources because the information sought could be obtained from other sources, the request was overly broad and burdensome, and the information may duplicate of information gathered from other sources. In re Daimler Chrysler, 216 F.R.D. 395 (E.D. Mich. 2003).
Some of the considerations that should be considered in assessing a newsgatherer's claim of privilege include: the nature of the case, the relevance and materiality of the information sought, whether the information sought lies at the heart of the pending case or is critical to the claims made by the discovering party, and the availability of information from alternative sources. See Davis v. City of Springfield, No. 04-3168, 2009 U.S. Dist. LEXIS 26806, at *13 (C.D. Ill. April 1, 2009) (factors included civil or criminal nature of case, availability of information from other sources and burden of production on press). See also Gulliver's Periodicals, Ltd. v. Chas. Levy Circulating Co., Inc., 455 F. Supp. 1197, 1202-03 (N.D. Ill. 1978). In U.S. v. Jennings, No. 97 CR 765, 1999 WL 438984 (N.D. Ill. June 29, 1999), the court held that the First Amendment does not protect journalists from disclosure of non-confidential relevant information that is sought in good faith. In Jennings, the court held that a reporter must produce his notes of a pre-trial interview of a co-defendant of the subpoenaing party. The purpose of the subpoena was to determine whether being interviewed impacted the testimony of the co-defendant. The court also found that because the source of this information was not confidential there was no chilling effect on the press, nor would it be an excessive burden to the press or alter the way the press conducted its methods of pursuing information. Id. at *4; see also Warnell v. Ford Motor Co., 183 F.R.D. 624 (N.D. Ill. 1998) (granting plaintiff's motion to compel NBC videotape where source of videotape remained confidential and was highly relevant and otherwise unavailable to plaintiffs); U.S. v. Bingham, 765 F. Supp. 954, 959-60 (N.D. Ill. 1991) (holding that defendant's subpoena duces tecum seeking NBC interview outtakes would be quashed; however, defendant was entitled to transcripts of such outtakes).
In Liebhard v. Square D Co., No. 91 C 1103, 1992 WL 19358 (N.D. Ill. Aug. 4, 1992), a defendant in a securities lawsuit subpoenaed information from a Reuters' reporter regarding the accuracy of a quote. In weighing the importance of the reporter's privilege against the need for discovery, the court permitted the discovery of the reporter's notes regarding his conversation with the defendant. Additionally, the court allowed the reporter to be deposed for the limited purpose of testing his memory regarding his conversation with the defendant. The court refused to allow the reporter to be questioned on the collateral issue of whether he had heard any rumors regarding the takeover of defendant's company. The court also rejected the defendant's attempt to probe into the editorial process surrounding the reporter's story. The court held that allowing an inquiry into this aspect of the reporter's story was an impermissible invasion of the internal operations of the press. Id. at *3.
In districts where the three-prong balancing test has been adopted, the obligation of citizens to provide testimony is balanced against First Amendment interests in the freedom of the press and the free flow of information. This balancing test is based on Justice Powell's concurrence in Branzburg. See Branzburg v. Hayes, 408 U.S. 665, 709–24 (1972) (J. Powell, concurring).
In a civil case, where the privilege is recognized and a prima facie case of privilege has been established, the balance favors shielding confidential information from discovery. Where the information is non-confidential, a lesser showing of need and materiality may be required to overcome the privilege.
The district court in Hively, a criminal case, held that the defendant's "Sixth Amendment right to present a defense must be factored in to the analysis." United States v. Hively, 202 F. Supp. 2d 886, 891 (E.D. Ark. 2002).
The district court in Grand Jury Subpoena ABC held that the balancing test should tilt towards allowing discovery in the grand jury context, because the grand jury "'is an investigative body charged with the responsibility of determining whether or not a crime has been committed,' and it 'can investigate merely on suspicion that the law is being violated, or even just because it wants assurance that it is not.'" In re Grand Jury Subpoena American Broadcasting Companies, Inc., 947 F.Supp. 1314, 1320 (E.D. Ark. 1996) (quoting United States v. R. Enterprises Inc., 498 U.S. 292, 297 (1991).
The qualified reporter’s privilege developed by Justice Powell in his Branzburg concurrence requires a judicial balancing of the interests at stake. Branzburg v. Hayes, 408 U.S. 665 (1972) (Powell, J., concurring). If the circumstances of a case show that the privilege applies, the Ninth Circuit requires the court to determine whether, in light of the competing needs and interests of society and the opposing parties, the privilege has been overcome. Shoen I, 5 F.3d at 1292. The test requires that the claimed First Amendment privilege and the opposing need for disclosure be judicially weighed in light of the surrounding facts and a balance struck to determine where lies the paramount interest. See Farr v. Pitchess, 522 F.2d 464, 468–69 (9th Cir. 1975), cert. denied, 427 U.S. 912 (1976) (affirming a district court’s denial of reporter’s habeas corpus petition, holding that the state court had a duty to enter into enforceable nondisclosure orders to protect the due process rights of accused persons). The journalist’s First Amendment interests in avoiding compelled disclosure include: “‘[t]he threat of administrative and judicial intrusion into the newsgathering and editorial process; the disadvantage of a journalist appearing to be an investigative arm of the judicial system or a research tool of government or of a private party; the disincentive to compile and preserve non-broadcast material; the burden on journalists’ time and resources in responding to subpoenas;’ and the possibility that frequent court-compelled disclosure will encourage the destruction of research material soon after publication.” See Wright, 206 F.R.D. at 682 (quoting Shoen I, 5 F.3d at 1292–93).
When deciding whether to enforce a subpoena, courts often consider whether a litigant’s constitutional rights are at issue. See Dillon, 748 F. Supp. at 727 (denying a cameraman’s motion to quash because his personal observations were not privileged, and holding that even if they were privileged, all factors weighed in favor of enforcing the subpoena because “the federal rights sought to be enforced here are substantial ones that rise to a constitutional level”); Farr, 522 F.2d at 469 (affirming a district court’s denial of the reporter’s habeas corpus petition, holding that the state court had a duty to enter into enforceable nondisclosure orders to protect the due process rights of accused persons). Courts also weigh the public’s interest in protecting a reporter’s First Amendment rights against the public’s interest in disclosure. See L.A. Mem’l Coliseum Comm’n v. NFL, 89 F.R.D. 489, 493-94 (C.D. Cal. 1981) (granting the reporters’ motion to quash because the journalist’s privilege protected the reporters’ sources and work product). In Los Angeles Memorial Coliseum Commission, a district court found that in civil cases, the public interest in non-disclosure of a journalist’s confidential sources outweighs the public and private interest in compelled testimony. Id. (quoting Altemose Contr. Co. v. Bldg. and Constr. Trades Council, 443 F. Supp. 489, 491 (E.D. Pa. 1977)).
There is no Alabama statutory or reported case law addressing this issue; however, a federal court sitting in the state has cited the principal that, in civil cases, the public interest in nondisclosure of journalists' news sources will often be weightier than the private interest in compelled disclosure, but in criminal cases, courts are more inclined to rule in favor of disclosure. Pinkard v. Johnson, 118 F.R.D. 517 (M.D. Ala. 1987). Another federal court sitting in the state has identified the competing interests of First Amendment rights and the right to a fair trial when the reporter's privilege is raised. Sanders v. Alabama State Bar, 887 F. Supp. 272, 274-75 (M.D. Ala. 1995). The court stated that these two interests "must be balanced against each other to determine which is more compelling in a specific case." Id. at 274.
Alaska appellate courts have not had occasion to squarely address the existence or scope of a reporter's privilege. The qualified constitutional reporter's privilege has been recognized to date by a number of trial courts, and while the basis for the courts' rulings do not clearly articulate that they have balanced competing interests, or the weight given to competing interests, they have generally been presented with arguments that the First Amendment interests of the press must be weighed against whatever interests are being asserted by the subpoenaing party, and that where the countervailing interests are not constitutional in nature, the First Amendment interests must prevail. See, e.g., State v. Pruett, Case No. 3AN-84-3887 Cr., 11 BNA Media L.Rptr. 1968 (Alas. Super. Ct., 3d Jud. Dist., 1984). Defense counsel in Pruett, which was a felony prosecution, had successfully argued an important Sixth Amendment Confrontation Clause case before the United States Supreme Court, Davis v. Alaska, 15 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). He argued to the trial court in Pruett that in the context of a criminal prosecution, any reporter's privilege must yield to the constitutional right to cross-examine without restriction based upon the Confrontation Clause. The author, as counsel for the newspaper, argued in response that in Davis v. Alaska the Confrontation Clause was balanced against a statutory prohibition against allowing juveniles to testify, whereas in the Pruett case, the Confrontation Clause was being balanced against a reporter's privilege that also derived from the Constitution—and specifically the First Amendment—not simply from a statute. The trial court agreed and quashed the subpoena. In cases where the state shield law is being applied, the statute directs that the court take into account whether disclosure is essential to the administration of justice, a fair trial in the instant proceeding, or the protection of the public interest.
The Arizona Shield Law does not require a judicial balancing of interests to determine whether it applies to protect information sought by a subpoena. Rather, if the subpoena would require disclosure of a confidential source or confidential information, the privilege applies and the subpoena must be quashed. A.R.S. § 12-2237; In re Hibberd, 262 GJ 75, Feb. 26, 2001.
In contrast, the Arizona Media Subpoena Law balances the needs of newspersons against the needs of litigants in obtaining information vital to the presentation or defense of their case. Matera, 170 Ariz. at 448, 825 P.2d at 973. "The statute balances the needs of media personnel against the needs of litigants, tipping the balance in favor of interference with the process of newsgathering only upon a showing of need, proven by affidavit." Id. In Bartlett, the court balanced the need in favor of the requesting party, which could not obtain elsewhere evidence relating to the condition of a car accident victim and scene just moments after the accident. Bartlett, 150 Ariz. at 183, 722 P.2d at 351. More recently, in Reinstein, the court balanced the requesting party’s need against the reporter’s privilege and concluded that the requestor had failed to satisfy his burden. 240 Ariz. at 450, 381 P.3d at 244.
No case has expressly articulated a balancing of interests test. However, the shield statute seems to indicate a balancing of interests between the confidentiality of the reporter's sources and the other party's interest in disclosure, particularly in the context of a defamation lawsuit. See Williams, 96 F.R.D. at 665.
As discussed throughout this substantive section, California courts balance these and a number of other interests in determining whether to quash the subpoena. “The relative weight of these factors in a particular case is for the trial court to decide.” People v. Charles, 61 Cal. 4th 308, 325, 349 P.3d 990, 188 Cal. Rptr. 3d 282 (2015).
The individual seeking information from a newsperson must also show a strong interest in the information that supersedes the newsperson's First Amendment interested. C.R.S. § 13-90-119(3)(c); Henderson, 879 P.2d at 393.
In Gordon, the Colorado Supreme Court found that, in considering whether a motion to quash should be granted, the court must balance the interests of the party seeking the information against the First Amendment interests of the newsperson in withholding it and the public's interest in promoting the gathering and reporting of news." Gordon, 9 P.3d at 1119. A key element in that balancing test is the "nature of the claim at issue." Id. In cases where the journalist is a party and that journalist's state of mind is at issue, the "equities weight somewhat more heavily in favor of disclosure." Id., quoting Zerilli v. Smith, 656 F. 2d 705, 714 (D.C. Cir. 1981). Where the newsperson is not a party, but is merely a source of information, "the equities weigh in favor of respecting the privilege." Id. The U.S. District Court for the District of Colorado has, however, declined to stay all discovery for only newsperson defendants, stating that the Shield Law statute is not a wholesale exemption upon newsperson litigants from compliance with discovery rules and schedules. The newspersons were required to answer discovery in a legally prudent manner but could object and invoke the qualified privilege when it deemed the privilege applicable. See General Steel Domestic Sales, LLC, 2008 U.S. Dist. LEXIS 101609, at *17-18.
Several persuasive opinions indicate that a court should engage in a balancing of the public’s interest in protecting the newsgathering process against the private interest in disclosure that has been brought into question. Compare Lee v. Dep’t of Justice, 428 F.3d 299 (D.C. Cir. 2005) (Tatel & Garland, JJ., dissenting from denial of rehearing en banc) (arguing that courts should weigh a litigant’s “private interest” in the lawsuit against “the public’s interest in protecting journalists’ ability to report without reservation on sensitive issues”), and Grunseth v. Marriott Corp., 868 F. Supp. 333, 335-36 (D.D.C. 1994) (“Plaintiff has demonstrated no overwhelming or compelling societal interest in overcoming the presumption of favoring First Amendment protections for a reporter’s sources”), with Lee v. Dep’t of Justice, 401 F. Supp. 2d 123 (D.D.C. 2005) (characterizing the proposed public/private interest balancing test as “inherently unworkable”), and Hatfill v. Gonzales, 505 F. Supp. 2d 33 (D.D.C. 2007) (“without controlling precedent from the Circuit that the public interest balancing element is a necessary protection for reporters, the Court must decline to employ it”).
Prior to balancing interests, the Court must find that disclosing the content would not reveal the source of the information. The judge then uses a balancing test to determine whether that the public interest in disclosure outweighs the public interest in confidentiality. 10 Del. C. § 4323 (a).
In cases where a criminal defendant is seeking testimony or documents, the balance weighs more heavily on the side of disclosure. See supra, Parts III.C.2.; VI.B.1.
District of Columbia
Because the identity of a source is absolutely privileged, the D.C. shield law does not require a balancing of interests if sources are at issue. Grunseth v. Marriott Corp., 868 F. Supp. 333, 336 (D.D.C. 1994). However, a balancing test is required if the information at issue is unpublished news or other related information.
In Prentice v. McPhilemy, 27 Med. L. Rptr. 2377, 2381 (D.C. Super. Ct. 1999), the court concluded that the libel plaintiffs had established the information they sought was relevant to the subject matter, and that the plaintiffs could not obtain the information from any other source. Nevertheless, the court denied the motion to compel otherwise-privileged information because the plaintiffs had not persuaded the court of an “overriding public interest” in disclosure. Id. The court specifically rejected plaintiffs’ arguments that the paramount interest at stake was the search for truth, the right of civil litigants to discover information genuinely relevant to their lawsuit, and an individual’s interest in protecting his or her reputation. Id.
On a motion for reconsideration, the libel plaintiffs argued that the Prentice ruling rendered D.C. Code § 16-4703 “inapplicable in libel cases because no libel plaintiff could ever demonstrate a public interest sufficient to justify compelled disclosure.” Id. at 2387. The court disagreed, stating that were it to accept the plaintiffs’ argument, § 16-4703 would envelop the general statutory prohibition against compelled disclosure in virtually every libel case. Id. The court reiterated its refusal to “carve out an exception for most, if not all, libel cases where the legislature could have created an exception for libel defendants and refused to do so.” Id.
The reporter's privilege, unlike most other privileges, does not depend upon whether the information is private. Although a reporter might be obliged to protect the identity of a source, the privilege belongs to the reporter. By protecting the reporter, the privilege protects the press's access to information. Where the press's access to information is protected, it follows that the public's access to that information is protected. See, e.g., Ulrich v. Cost Dental Serv., 739 So. 2d 142, 143-144 (Fla. 5th DCA 1999). Thus, courts often must balance the interests of the public -- that is, their interest in obtaining information -- with the interests of the subpoenaing party in requiring disclosure. In criminal cases, often First Amendment rights must be balanced against constitutional rights protecting the criminally accused.
In Florida, courts balance those interests by requiring the subpoenaing party to make a clear and specific showing that a compelling interest exists for requiring disclosure of the information. § 90.5015(2)(c), Fla. Stat. (2016). A compelling need exists only if non-production "will result in a miscarriage of justice or substantially prejudice a party's ability to present its case." Redd v. U.S. Sugar Corp., 21 Media L. Rep. 1508, 1509 (Fla. 15th Cir. Ct. May 27, 1993) (applying Florida common law privilege, which is similar to Section 90.5015). See also McCarty v. Bankers Ins. Co., 195 F.R.D. 39 (N.D. Fla. 1998) (moving party must show that "he would be unable to succeed on his claims without [the reporter’s] testimony"). But see Gregory v. Miami-Dade County, Case No. 13-21350-CIV, 2015 WL 3442008 , at *6 & n.7 (S.D. Fla. May 28, 2015) (party seeking to defeat federal common law privilege must show compelling need for reporter’s testimony but is not required to establish that party is unable to prove its claim or defense without journalist’s information) (citing § 90.5015).
A party’s interest in impeaching a witness is not a compelling need. It is within the province of the finder of fact to weigh the credibility of alternative sources, and the journalist's privilege may not be overcome simply to support or attack the credibility of another witness. Smith, 29 Media L. Rep. at 2439 (although journalist's information may be helpful to impeach the defendant, the interest in disclosing the information is not compelling); Fancher v. Lee County Humane Society, Inc., 27 Media L. Rep. 1447, 1447-1448 (Fla. Cir. Ct. Dec. 14, 1998) (verification of the accuracy of a party's statements as contained in a newspaper article is not a sufficiently compelling need to overcome the privilege); Redd, 21 Media L. Rep. at 1509 ("the possible use of the information for impeachment of a witness in a civil case is not sufficiently compelling to overcome the news reporter's qualified testimony privilege"). "[I]mpeachment does not go to the heart of issues before the Court and does not demonstrate a sufficiently compelling need to overcome the reporter's privilege." Redd, 21 Media L. Rep. at 1509.
Although case law interpreting the Georgia privilege does not explicitly contemplate a "balancing" of interests, the analysis used by the appellate courts clearly incorporates a sensitivity to the broader principles protected by the privilege. See, e.g., In re Paul, 270 Ga. 680, 682 (1999) ("News stories based on confidential sources and information enable citizens to make more informed decisions about the conduct of government and its respect for individual rights.").
Although Hawai'i courts have not explicitly articulated a test for applying the reporters' privilege, Goodfader suggests that a court should balance the First Amendment's protection of the freedom of the press with the court's fundamental authority to compel the attendance of witnesses and to exact their testimony, as well as the right of a litigant to gather evidence. Goodfader, 45 Haw. at 329, 334-35, 367 P.2d at 480.
DeRoburt examined three factors to determine whether the privilege applies: (1) is the information relevant, (2) can the information be obtained by alternative means, and (3) is there a compelling interest in the information?
The Statute requires a judicial balancing of interests in determining whether to quash a subpoena. In United States v. Bingham, for example, the court balanced the defendant’s need for the material against the reporter’s interest in protecting his source. 765 F. Supp. 954, 959 (N.D. Ill. 1991). The court held that the public has an interest in “the maintenance of a vigorous, aggressive and independent press capable of participating in robust, unfettered debate over controversial matters, an interest which has always been a principal concern of the First Amendment . . . . Reporters should be encouraged to investigate and expose, free from unnecessary government intrusion, evidence of criminal wrongdoing.” Id. at 957 (internal citation omitted). The public’s interest in preserving a defendant’s constitutional rights to a fair trial should be balanced against the public’s interest in a free press. Id. at 959; see also In re Special Grand Jury Investigation, 104 Ill. 2d 419, 472 N.E.2d 450 (1984) (recognizing a clear legislative intent to create a standard which balances the reporter’s First Amendment rights against the public interest in the information sought and the practical difficulties in obtaining the information elsewhere).
Furthermore, even if the grounds for divesting the privilege have been established, “the court should narrowly tailor the order to require production of only that information for which the petitioner (here, the State) has met all the statutory prerequisites,” and if necessary, “should scrutinize the material in camera to ensure that its production does not violate the protections the legislature intended to provide reporters.” In re Arya, 226 Ill. App. 3d 848, 862, 589 N.E.2d 832, 841 (1992).
The Indiana shield law is absolute and, therefore, does not require a judicial balancing of interests in determining whether to quash a subpoena, if the purpose of the subpoena is to learn the identity of a source. See Ind. Code § 34-46-4-2.
The constitutional newsgatherer’s privilege, arguably still recognized for civil cases pursuant to in In re Stearns (Vollmer v. Zulka), 489 N.E.2d 146 (Ind. App. 1986), involves the balancing of First Amendment considerations against “a paramount public interest in the fair administration of justice.” Id. at 150. The court, faced with a claim of privilege, must consider the following factors: (1) whether the materials sought are material and relevant to the action, (2) whether they are critical to a fair determination of the cause, and (3) whether the subpoenaing party had exhausted all other sources for the same information. Id. at 151. It is unclear, however, whether this constitutional privilege still exists after the Indiana Supreme Court rejected such an approach for criminal cases. See In re WTHR-TV (State v. Cline), 693 N.E.2d 1 (Ind. 1998).
In criminal cases, In re WTHR-TV (State v. Cline), 693 N.E.2d 1 (Ind. 1998) applies and the test is not one of privilege but resolution consistent with Indiana's Trial Rules that pertains to discovery. Id. at 7 (“Resolution of this case, however, turns only on the application of general principles of discovery, particularly for third parties, to the peculiar interests of the newsgathering organization”). More specifically, the WTHR court stated that when a media organization is subpoenaed “a showing that the information is unique and likely not available from another source should normally be required.” Id. at 9.
Judicial evaluation of what constitutes a compelling need "involves a weighing of competing interests and a determination of relevancy." Lamberto, 326 N.W.2d at 309. The court must ask whether the requesting party's need for the information outweighs the corresponding impairment on the reporter's First Amendment rights. See Winegard, 258 N.W.2d at 851.
The Kansas shield law does not specifically require a “balancing” of interests, i.e., the party who seeks to compel disclosure of information in the possession of a journalist either succeeds in making a showing that satisfies the requirements of K.S.A. 60-482(a) or he doesn’t, in which case the journalist will not be required to respond to the subpoena. However, in determining whether the evidence/information in which the party seeking the information is interested, the court is obliged to consider whether “the evidence (is) likely to be admissible and has probative value that is likely to outweigh any harm done to the free dissemination of information to the public through the activities of journalists.” K.S.A. 60-482(b) (emphasis supplied). This necessarily requires a “balancing” of the respective interests.
Under the common law privilege, there is language in the Pennington decision suggesting that state courts should balance the interest of the litigant and the reporter in determining whether to quash the subpoena. This may represent dicta.
Although the privilege statute does not require a judicial balancing of interests in determining whether to quash a subpoena, the Kentucky Supreme Court has recognized that weighing a "litigant's right to disclosure with due regard for the importance of freedom of the press" is an important part of the analysis. Lexington Herald-Leader Co. v. Beard, 690 S.W.2d 374, 376 (Ky. 1984).
In Ridenhour, the Supreme Court of Louisiana stated that once a showing has been made by the party seeking the information that the disclosure is necessary to the protection of the public interest, the trial judge should balance the public interest in having all relevant testimony with the possible "chilling effect" the disclosure will have on the freedom of the press and the ability to gather news. Id. The Court stated that consideration should be given to insure that the party seeking the information is not "attempting to annex the journalistic profession as an investigative arm of the government . . . Consideration should also be given to the idea that the press' most important function is to question and investigate the government. Therefore, additional weight should be given to the reporter's interest when the information concerns his investigation of or criticism of the government." Id.
In Smith, the United States Fifth Circuit stated that the "public has much less of an interest in the outcome of civil litigation than in criminal litigation. In civil cases, the interests of the press may weigh far more heavily in favor of some sort of privilege." Smith, 135 F.3d at 972.
For confidential sources and information, each factor set out in the shield law must be met. 16 M.R.S.A. 61(2).
For non-confidential sources or information, the Maine Supreme Court will balance the competing societal and constitutional issues on a case-by-case basis, weighing any possible injury to the free flow of information against the recognized obligation of all citizens to give relevant evidence. See In re Letellier, 578 A.2d 722, 17 Med.L.Rptr. 2169 (Me. 1990).
In Maryland, the reporter's privilege should be evaluated by achieving a balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal or tortious conduct. Tofani v. State, 465 A.2d 413, 9 Media L. Rep. 2193 (Md. 1983) (overturned by statute on other grounds).
The Massachusetts reporter's privilege requires a judicial balancing of interests in determining whether to quash the subpoena.
This balancing test was first explored in In Re Pappas, 266 N.E.2d 297 (Mass. 1971) . In Pappas, the court evaluated whether "the need for information from the news gatherer as a witness outweighs . . . the possible harm to his ability to obtain new and to the reporting ability of the press." 266 N.E.2d at 300. Petition for Promulgation of Rules, 479 N.E.2d 154, 159 (Mass. 1985) also "recognize[d] the desirability of striking 'the proper balance between the public's interest in the free dissemination of ideas and information and the public's interest in effective law enforcement and the fair administration of justice.'"
Typical interests include First Amendment rights, the defendant/litigant's constitutional rights or interests, and the public's interest. As a federal district court said, summarizing Massachusetts's reporter's privilege, "the balancing test requires '... weighing (a) the public interest in having every person's evidence available against (b) the public interest in the free flow of information.'" Summit Technology, Inc. v. Healthcare Capital Group, Inc., 141 F.R.D. 381, 384 (D. Mass. 1992) (internal citation omitted); see also Wojcik v. Boston Herald, 803 N.E.2d 1261, 1264-5 (Mass. Ct. App. 2004); Ayash v. Dana Farber Cancer Inst., 706 N.E.2d 316, 319 (Mass. Ct. App. 1999); Massachusetts v. McDonald, 6 Med. L. Rep. 2230, 2231 (Mass. Super. Ct. 1980).
Except in defamation cases, the person seeking to compel disclosure must show "that there is a compelling and overriding interest requiring the disclosure of the information where the disclosure is necessary to prevent injustice." Minn. Stat. § 595.024 subd.2(3).
In 2007 a Minnesota district court held in rather conclusory fashion that this standard was met. 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. In Skjervold, the court 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). Law enforcement sought the information for an "on-going investigation" into the man's suicide. However, the investigation was not focused on any particular person. Further, the court appeared to misplace its focus on past events: rather than considering whether law enforcement's need to fully investigate the suicide trumped the newspaper's need to maintain its independence, the court considered whether the newspaper's need to talk to the suicidal man trumped law enforcement's need to prevent his death. The court stated, "The right claimed by the [newspaper] to seek the 'truth' must never be allowed to take precedent over the compelling and overriding interest of law enforcement authority to maintain human life." The Court of Appeals reversed, holding that the county attorney had not established this 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 court of appeals' explanation of this requirement in Bauer v. Gannett Co., Inc. (KARE 11), may also be helpful, although it is arguably improper to consider the compelling interest factor in a defamation case. Bauer, 557 N.W.2d 608, 612 (Minn. Ct. App. 1997), overruled to the extent inconsistent with Weinberger v. Maplewood Rev., 668 N.W.2d 667 (Minn. 2003); see also Weinberger, 668 N.W.2d at 673 (naming only three conditions for application of the defamation exception). In Bauer the court made clear that a "compelling interest" can weigh against disclosure as well as in favor of disclosure. 557 N.W.2d at 612. The court stated, "the court must consider whether there is a compelling interest in the information or source. . . . Thus, the court should consider not only the relevance but also the necessity of any information a confidential source might have. There may be no need to disclose the identity of relevant confidential sources: evidence of malice may be available from nonconfidential sources, or the defendant may have sufficient evidence of truth and prudence in publishing to prevail on a motion for summary judgment. . . . A compelling interest might also keep the court from disclosing the identity of a confidential source despite demonstrated relevance and necessity." 557 N.W.2d at 612 (internal citations omitted).
In Grunseth v. Marriott Corp., 868 F. Supp. 333, 335-36 (D.D.C. 1994) (relying in part upon Minnesota statute), the court stated that "Plaintiff has demonstrated no overwhelming or compelling societal interest in overcoming the presumption favoring First Amendment protections for a reporter's sources. This is not a case involving election fraud, or governmental corruption, or any other issue that affects the fundamental validity of the electoral process."
There is no statutory law that requires a judicial balancing of interests in determining whether to quash the subpoena. In a trial setting, State v. Siel and Mortgage Specialists, Inc. v. Implode-Explode Heavy Industries, Inc. each used a balancing test in determining whether the source had to be disclosed.
Only after the criminal defendant has proved by a preponderance of the evidence that information is relevant, necessary and material to his or her defense, and that the material is not available from any less intrusive source does the court enter into a balancing. The court must then determine "that the value of the material sought as it bears upon the issue of guilt or innocence outweighs the privilege against disclosure, and that the request is not overbroad, oppressive, or unreasonably burdensome."
Under Rule 11-514, the privilege prevails unless “the need of the party seeking the confidential source or information is of such importance that it clearly outweighs the public interest in protecting the news media’s confidential information and sources.” Rule 11-514(C)(4) NMRA.
The North Carolina shield law does not incorporate an explicit balancing test or requirement. Rather, the law requires the court to evaluate (i) the relevance of the information, (ii) whether the information can be obtained from alternate sources, and (iii) whether the information is essential to the maintenance of a claim or defense of the person seeking the information.
The judicial balancing test promulgated by the North Dakota Supreme Court requires that the court look at several factors including, but not limited to:
(1) whether the information is available from some other source and the party seeking disclosure has exhausted all other resources of information;
(2) whether the information came from a confidential source, although this is not dispositive, it is only a factor to consider;
(3) relevancy of the information sought to the litigation;
(4) whether disclosure of the information would cause a "chilling effect."
The court should consider these factors in determining whether disclosure of the relevant information would result in the a miscarriage of justice.
The privilege statute strikes the balance by requiring the party seeking the information to meet the requirements of the statute clearly and convincingly. In Taylor v. Miskovsky, the court said the Oklahoma legislature was “within” First Amendment limits (described in Branzburg) in crafting the privilege statute.
Because the Shield Law provides an absolute privilege, there is no balancing of interests.
When a party seeks information protected by the First Amendment privilege, Pennsylvania courts will balance the “rights of reporters under the First Amendment against the interests of those seeking the information the reporters possess.” Davis v. Glanton, 705 A.2d 879, 885 (Pa. Super. 1997); accord Commonwealth v. Bowden, 838 A.2d 740, 754 (Pa. 2003) (“[A] court ‘must balance on one hand the policies which give rise to the privilege and their applicability to the facts at hand against the need for the evidence sought to be obtained in the case at hand.’”) (citing Riley v. City of Chester, 612 F.2d 708, 716 (3d Cir. 1979)). This balance is assessed through the three-part test. See Bowden, 838 A.2d at 754-55.
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." Courts may make whatever order may be proper under the circumstance." R.I. Gen. Laws § 9-19.1-3.
There obviously is a balancing of interests in assessing the significance of the five factors in Hopewell. Furthermore, it is evident from the court's reference to criminal proceedings that balancing is an important aspect in determining whether the qualified privilege applies.
The shield law specifically requires that the subpoenaing party prove, by clear and convincing evidence, that there is a compelling and overriding public interest in the testimony of the journalist. Tenn. Code § 24-1-208(c)(2)(C). There is no Tennessee case law separately construing this element.
The subpoenaing party must demonstrate, by a clear and specific showing, that “the interest of the party subpoenaing the information outweighs the public interest in gathering and dissemination of news, including the concerns of the journalist.” See Tex. Civ. Prac. & Rem. Code §22.024 and Tex. Code Crim. Proc. art. 38.11, §§4 and 5. Both the civil and criminal shield statutes state the purpose “is to increase the free flow of information and preserve a free and active press and, at the same time, protect the right of the public to effective law enforcement and the fair administration of justice.” Tex. Civ. Prac. & Rem. Code §22.022 and Tex. Code Crim. Proc. art. 38.11, §2.
Utah Rule of Evidence 509 “requires the court to consider the interests of the person seeking disclosure and the interests of the free flow of information to news reporters.” Utah R. Evid. 509 advisory committee note (2008). In doing so, the Advisory Committee directed courts to consider the Silkwood v. Kerr-McGee Corp., 563 F. 2d 433 (10th Cir. 1977) factors of “(1) whether the party seeking the information has attempted independently to obtain the information, (2) whether the information being sought goes to the heart of the matter, (3) whether the information is of certain relevance, and (4) the type of controversy.” It also indicated that “[a]s the law in this area continues to develop, the court should consider other factors found to influence the open and free flow of information to news reporters.” Utah R. Evid. 509 advisory committee note (2008). Additionally, the rule does not contain exceptions to the privilege, “recognizing that in most cases those issues will be resolved by applying the balancing test[.]”
Even before Rule 509 was enacted, several state trial courts engaged in a balancing of interests in attempting to determine whether to quash a subpoena seeking a reporter's testimony. Among the interests that have been considered in such a balancing inquiry is “the interest of protecting First Amendment and common law privileges and interests of the journalists and reporters and not subjecting them to inappropriate or unnecessary inquiry as to their reporting inquiries.” Bottomly v. Leucadia Nat'l Corp., 24 Med. L. Rep. 2118, 1996 U.S. Dist. LEXIS 14760, at *6 (D. Utah July 2, 1996).
In connection with this balancing of interests, state trial courts have followed the U.S. Court of Appeals for the Tenth Circuit in examining the type of controversy involved in the underlying cases when reporters are subpoenaed. In civil and minor criminal cases, the reporter's privilege will be stronger than in serious criminal cases: “Some events, while constituting a minor crime or civil wrong, may not be so significant or serious that the reporter should be required to appear and testify.” State v. Halvorson, No. 001500343 (Utah 5th Dist. Ct. Oct. 13, 2000).
Even in case of serious criminal charges such as capital homicide, however, Utah trial courts have quashed subpoenas seeking reporters' testimony when the information was available through alternative sources. See State v. Koolmo, No. 981905396 (Utah 3d Dist. Ct. March 29, 1999).
In one capital homicide case, however, a Utah trial court refused to quash a subpoena seeking a reporter's testimony in part because the state’s interest in prosecuting the crime and putting on its evidence as it saw fit outweighed the reporter's privilege. State v. Martinez, No. 011501042 (Utah 5th Dist. Ct. April 29, 2002). In that case, the trial court was not persuaded by the newspaper's argument that the First Amendment interest in preventing a chilling effect on press freedoms justified quashing the subpoena. The newspaper also correctly predicted that forcing the reporter to testify would turn journalists into subpoena magnets. Soon after the preliminary hearing at which the reporter testified, the newspaper's publisher and editor were both subpoenaed by defense counsel for trial. The subpoenas were withdrawn, however, when the defendant pleaded guilty.
Vermont law reflects “a balancing between the ingredients of freedom of the press and the obligation of citizens, when called upon, to give relevant testimony relating to criminal conduct.”
State v. St. Peter, 132 Vt. 266, 270, 315 A.2d 254, 255 (Vt. 1974); see also Spooner v. Town of Topsham, 2007 VT 98, ¶ 17, 937 A.2d 641, 647-48 (Vt. 2007) (“a proper resolution of the privilege claim must balance any First Amendment interests at stake against the moving party’s demonstrated interest in disclosure”). The Vermont Shield Law does not contain a balancing test, but the third prong of the test to overcome a reporter’s privilege for non-confidential information requires the requesting party to present clear and convincing evidence that “there is a compelling need for disclosure.” 12 V.S.A. § 1615(b)(2).
The reporter’s privilege requires the court to balance the interests between the freedom of the press and the right of a defendant to compel disclosure. Clemente v. Clemente, 56 Va. Cir. 530, 531 (Arlington 2001); Philip Morris Cos. v. Am. Broad. Co., 36 Va. Cir. 1, 18 (Richmond 1994); Ashcraft v. Conoco, Inc., 218 F.3d 282 (4th Cir. 2000). If the privilege applies, the party moving for disclosure must demonstrate a compelling need for the information. Ashcraft v. Conoco, Inc., 218 F.3d 282 (4th Cir. 2000) (reversing order holding a reporter in contempt for failing to identify a confidential source where there was no compelling need for the information); Horne v. WTVR, LLC, Civ. No. 3:16-cv-000092, 2017 WL 2727900 (E.D. Va. Feb. 13, 2017) (refusing to compel disclosure of a confidential source in a defamation case where the plaintiff had failed to demonstrate a compelling need for the information); Hatfill v. N.Y. Times Co., 242 F.R.D. 353 (E.D. Va. 2006) (denying motion to compel the production of reporter notes where the plaintiff did not know what the notes said, there was no evidence that the reporter showed the notes to the reporter alleged to have defamed the plaintiff, and the plaintiff otherwise had not shown a compelling need for the notes).
Washington's case law has not yet squarely addressed this issue.
Section 2(b) of the shield statute requires the proponent of any disclosure by the news media of non-confidential source information to prove that there "is a compelling interest in the disclosure." See RCW 5.68.010(2)(b).
The essence of the reporter's privilege in West Virginia is the balancing of interests. In some contexts, such as compelled disclosure of a confidential source, or in most any civil case not involving libel claims, the reporter’s interest is given by far the most weight. In other contexts, namely the grand jury context (insofar as the compelled disclosure sought does not concern the identity of a confidential source), the "public interest" in information for the purpose of solving crimes and bringing criminals to justice is given more weight. And in a third context, such as criminal proceedings implicating a defendant's Fifth Amendment rights, or libel cases, the weight given to the reporter versus the weight given the defendant is more equal (again, at least insofar as the compelled disclosure sought does not concern the identity of a confidential source).
In Hudok, 389 S.E.2d at 192, the West Virginia Supreme Court explained the balancing test as follows:
"Courts have been more reluctant to enforce subpoenas against reporters in civil or administrative proceedings. As the court stated in Zerilli v. Smith, 656 F.2d 705, 712 (1981): 'Every other circuit that has considered the question has also ruled that a privilege should be readily available in civil cases, and that a balancing approach should be applied.' Zerilli also recognized the distinction between civil actions in which the reporter is a party and those in which he is not. Where the reporter is a party, and particularly in a libel action, 'the equities weigh somewhat more heavily in favor of disclosure.' 656 F.2d at 714."
In Ranson, 488 S.E.2d at 12, the Supreme Court held as follows in the criminal context:
"When a criminal defendant seeks from a news source unpublished, nonconfidential information, he/she must show with particularity that: (1) the requested information is highly material and relevant to the defendant's articulated theory or theories of his/her defense; (2) the requested information is necessary or critical to the defendant's assertion of his/her articulated theory or theories of defense; and (3) the requested information is not obtainable from other available sources. The "particularity" with which the defendant must satisfy this balancing test contemplates some explanation by the defendant as to what information he/she expects the media material to contain. A mere bald assertion, standing alone, that the allegedly privileged information satisfies the requisite criteria will not suffice. . . . Once a criminal defendant has shown with particularity that the unpublished, nonconfidential information requested from a news source satisfies the three-part threshold balancing test, the circuit court shall conduct an in camera review of the requested material and release to the defendant only that information which the court deems to be relevant to the defendant's articulated theory or theories of defense."
Of course, in any type of proceeding, be it civil, criminal, grand jury or administrative, if the information sought to be compelled would reveal a confidential source who has not consented to disclosure, that disclosure may be compelled only upon a showing that the information to identify the confidential source, “is necessary to prevent imminent death, serious bodily injury or unjust incarceration.” W.Va. Code § 57-3-10.