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3. Nature of appeal

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  • 10th Circuit

    Before a holding of contempt, an interlocutory appeal under 28 U.S.C. 1657 may be available but is discretionary. After a contempt holding, the appeal is by right.

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  • 1st Circuit

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

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  • 2nd Circuit

    A non-party has an appeal by right when a judgment of contempt is levied. See Von Bulow v. Von Bulow, 811 F.2d 136, 138 (2d Cir. 1987).

    As stated above, interlocutory appeals are generally not permitted for matters related to discovery, but under 28 U.S.C. § 1292(b), the appeals court has discretion to take these appeals from an order by the district court.

    A writ of mandamus may be sought when the trial court denies or grants discovery. Courts in other circuits have stated that the standard of review for a writ of mandamus in a case involving the reporter's privilege is whether the trial court's determination was "clearly erroneous." See, e.g., Star Editorial, Inc. v. United States Dist. Ct., 7 F.3d 856 (9th Cir. 1993).

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  • 3rd Circuit

    Whether a reporter should seek an appeal or a writ of mandamus (or pursue both avenues of relief simultaneously) depends on the particular circumstances of the case.

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  • 4th Circuit

    Final judgments and contempt orders may be appealed as of right by filing a notice of appeal with the district clerk within 30 days after the judgment or order is entered. 28 U.S.C. § 1291; Fed. R. App. P. 4(a). Courts also permit some interlocutory appeals; however, parties generally may not appeals denials of motions to quash without first resisting the subpoena and being found in contempt. Ryan, 402 U.S. 530 (1971); Cobbledick, 309 U.S. 323, 328 (1940). Aside from Sterling (where appeal was allowed under 18 U.S.C.A. § 3731), there do not appear to be any cases in the Fourth Circuit in which a motion to quash has been appealed before a reporter is held in contempt or a final order issued. See Ashcraft, 218 F.3d at 284 (reporter appeals contempt order); Church of Scientology, 992 F.2d at 1335 (plaintiff appeals summary judgment); Shain, 978 F.2d at 851 (reporters appeal contempt order); LaRouche, 780 F.2d at 1136 (plaintiff appeals final judgment); Steelhammer, 561 F.2d at 540 (reporters appeal contempt order).

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  • 5th Circuit

    The writ of habeas corpus is the appropriate federal remedy for a state prisoner, including an imprisoned state contemnor, challenging the fact of confinement. Preiser v. Rodriguez, 411 U.S. 475, 484, 93 S. Ct. 1827, 1833 (1973). When a party appeals from a final federal order or judgment, the appeal is one of right pursuant to 28 U.S.C. § 1291. If the challenged order or judgment is not final, the Fifth Circuit may consider an appeal under § 1292(b) or pursuant to a statute granting the right of immediate appeal (for example, 28 U.S.C. § 1826 or 3137).

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  • 6th Circuit

    Mandamus Action

    A party seeking a writ of mandamus must file a petition with the circuit clerk along with proof of service on all parties to the proceeding in the trial court. Fed. R. App. P. 21. A copy of the petition must also be given to the trial court judge. Id. All parties to the proceeding in the trial court, other than the petitioner, now become respondents for all purposes. Id.

    The petition must be titled "In re [name of petitioner]," and must also state the kind of relief sought along with the issues presented. Id. The facts necessary to understand the issue presented by the petition and the reasons why the court should issue the writ should be included in the petition. Id. The petition must also include a copy of any order or opinion or parts of the record that my be essential to understanding the matters presented in the petition. Id.

    Because an interlocutory appeal most likely would be available in a reporter's privilege situation, federal mandamus would most likely be unavailable. When unsure, do both: appeal and petition for mandamus.

    Appeal By Right

    In the Sixth Circuit, an appeal as of right is taken in accordance with the Federal Rules of Appellate Procedure. An appeal from a judgment by a magistrate judge in a civil case is taken in the same way as an appeal from another district court judgment. Id. An appeal as of right from a district court to the Sixth Circuit Court of Appeals may be taken only by filing a notice of appeal with the district court within. Fed. R. App. P. 3. A mandamus action alternatively requires that a petition be filed with the circuit court. Fed. R. App. P. 21. Failure on the part of the party seeking the appeal to file a timely notice of appeal does not affect the validity of the appeal, but is grounds for the circuit court to dismiss the appeal. Id.

    The district clerk must serve notice of the filing of a notice of appeal by mailing a copy to each party's counsel of record, except for the appellant's. At the time of filing the notice of appeal, the appellant must furnish the clerk with sufficient copies of the notice to enable the clerk to serve notice to all parties required by statute. Id. In the mandamus action the party petitioning the writ is responsible for furnishing the circuit clerk with proof of service of the petition on all parties to the proceeding in the trial court. Fed. R. App. P. 21.

    When the defendant in a criminal case appeals, the district clerk must also serve a copy of the notice of appeal on the defendant. Fed. R. App. P. 3. The clerk is required to promptly send a copy of the notice of appeal and of the docket entries to the clerk of the court of appeals named on the notice. Id. Finally, upon filing a notice of appeal, the appellant must pay the district court all fees. Id.

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  • 7th Circuit

    A reporter can appeal directly after being held in contempt by the court. No cases have treated the appeals any differently than "expedited" or "interlocutory" appeals as described above.

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  • 8th Circuit

    No Eighth circuit case law addresses this issue in the context of the reporter's privilege.

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  • 9th Circuit

    Parties may be able to obtain review of nonappealable orders and judgments by filing an extraordinary writ. Rutter 1:78. Such a writ “is used sparingly because it entails interference with the district court’s control of the litigation before it.” Star Editorial, Inc. v. U.S. Dist. Court, 7 F.3d 856, 859 (9th Cir. 1993). The “guideline principles” courts use when considering a writ include whether: (1) the party seeking the writ has no other adequate means, such as direct appeal, to attain relief; (2) the petitioner will be damaged or prejudiced in a way not correctable on appeal; (3) the district court’s order is clearly erroneous as a matter of law; (4) the district court’s order is an oft-repeated error, or manifests a persistent disregard of the federal rules; and (5) the district court’s order raises new and important problems or issues of law of first impression. Id.

    Review of a district court decision, however, is most commonly obtained by direct appeal from a final judgment or appealable order. Rutter 1:76. Under certain circumstances, parties may be permitted to obtain review of an otherwise nonappealable order if they are able to secure the permission of both the district and appellate courts. Id.

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  • Alabama

    Typically, the appropriate procedure for challenging the denial of a motion to quash a subpoena duces tecum is filing a petition for a writ of mandamus directing the lower court to quash the subpoena duces tecum. Ex parte Fitch, 715 So.2d 873 (Ala. Crim. App. 1997).

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  • Alaska

    Alaska appellate courts have not had occasion to squarely address the existence or scope of a reporter's privilege, or matters pertaining thereto such as appropriate procedures for appeals, or the nature of means for obtaining review of trial court rulings concerning the privilege.

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  • Arizona

    See Section VIII.A.1. The appeal is a "special action."

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  • Arkansas

    Appeals to the appellate courts in Arkansas from a final order in a lower court are permitted as a matter of right. Petitions for extraordinary writs and interlocutory appeals are to be made to the Arkansas Supreme Court. The petitioner may also request an expedited review of the matter.

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  • California

    California’s rules do not allow for a direct appeal of a civil contempt order. See Cal. Code Civ. Proc. § 904.1. Consequently, if a contempt order is entered, the reporter should file a petition for extraordinary relief, seeking a writ of mandate or prohibition to the trial court, pursuant to California Code of Civil Procedure §§ 1084 or 1103.

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  • Colorado

    Under Colorado Appellate Rules, a final judgment of a district court may be appealed. C.A.R.1. The appellant has 45 days from entry of the judgment to file a notice of appeal. C.A.R. 4.

    Where no final order has been entered, a newsperson may file an original proceeding with the Supreme Court. Mandamus is available only upon a showing that judicial discretion has been abused and the harm to the newsperson cannot be cured on appeal. See e.g., Seymour v. District Court, 581 P.2d 302 (Colo. 1978).

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  • Connecticut

    There is no case law on this subject. Presumably, however, an appeal from a finding of contempt of court is of the same nature as an appeal by right from any other final judgment.

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  • D.C. Cir.

    The timing of an appeal and the procedures governing it depend on whether the person moving to quash a subpoena is a party or non-party and whether the court granted or denied the motion.  A party generally must wait until the final deposition of the case to appeal the presiding court’s order regarding a discovery motion.  Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 107 (2009).  However, an order by a court denying a motion to quash may be appealed after a finding of contempt against the still-noncompliant movant.  E.g., Lee v. Dep’t of Defense, 413 F.3d 53, 59 (D.C. Cir. 2005); Office of Thrift Supervision v. Dobbs, 931 F.2d. 956, 957 (D.C. Cir. 1991).

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  • Delaware

    The statute does not address any differences between forms of appeal.

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  • District of Columbia

    The right to appeal and the procedures governing the appeal depend on whether the person seeking to quash the subpoena is a party or non-party and whether the court has granted or denied the motion to quash.  A party generally must wait until the final deposition of the case to appeal the presiding court’s order regarding its motion to quash.  In re Johnson, 699 A.2d 362, 367 n.14 (D.C. 1997).  However, an order by a court denying a motion to quash may be appealed after a finding of contempt against the still-noncompliant movant.  Crane v. Crane, 614 A.2d 935, 940 (D.C. 1992); United States v. Harrod, 428 A.2d 30, 31 (D.C. 1981) (en banc).

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  • Florida

    Certiorari lies to review trial court orders compelling production of documents and information claimed to be protected under the qualified journalist's privilege. TheStreet.com, Inc. v. Carroll, 20 So. 3d 947, 949 (Fla. 4th DCA 2009). A petition for certiorari must be filed within thirty (30) days of the rendering of the order. See Fla. R. App. P. 9.100(c).

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  • Georgia

    The appeal is a direct, interlocutory appeal. In re Paul, 270 Ga. 680, 683 (1999) ("[W]e hold that non-parties engaged in news gathering may file a direct appeal of an order denying them a statutory reporter's privilege under the collateral order exception to the final judgment rule.").

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  • Hawaii

    If the order being appealed from has merged into judgment, then there is an appeal as of right. However, if the order appealed from is not part of a final judgment, then the appeal is interlocutory in nature, and leave from the trial court must be obtained unless the collateral order doctrine applies. By contrast, a petition for a writ of mandamus is treated as an independent action that invokes the original jurisdiction of the appellate court.

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  • Idaho

    An appeal taken in the ordinary course, under the usual appeal procedure, will proceed as with any other appeal. There will be a time for settling the record, an order from the appeal court setting out a briefing schedule and then the case may or may not be set for argument, with a decision to follow. In the use of extraordinary writs, the process is generally more truncated and speedier, subject to the particular rules of the appeal court dealing with the use of its original jurisdiction. See, I.A.R. 43.

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  • Illinois

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

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  • Indiana

    The appeal may be as of right, Ind. R. App. P. 14(A), or the appeal may be discretionary, Ind. R. App. P. 14(B).

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  • Iowa

    Review in the Iowa Supreme Court is by standard appeal under the state rules of appellate procedure.

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  • Kansas

    The appeal will be similar to any other appeal from a contempt conviction.

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  • Kentucky

    A party who wishes to appeal a denial of a motion to quash must proceed through a writ of prohibition. Orders denying such motions are interlocutory and cannot be immediately appealed. Lexington Herald-Leader Co. v. Beard, 690 S.W.2d 374, 376 (Ky. 1984). The reporter against whom the subpoena is granted can have the decision subjected to appellate review by disobeying the order and being held in contempt. If he or she is held in criminal contempt, the appeal would no longer be regarded as interlocutory and thus could be immediately appealed. Nye v. U.S., 313 U.S. 33, 85 (1941). If, however, the contempt is civil in nature, the order is considered to be part of the ongoing civil case and is thus interlocutory and not immediately appealable.

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  • Louisiana

    An order compelling disclosure is appealable under Code of Civil Procedure Article 2083. La. R.S. 45:1453, 45:1459(E). Article 2083 states "an appeal may be taken from a final judgment rendered in cases in which appeals are given by law whether rendered after hearing or by default, and from an interlocutory judgment which may cause irreparable injury."

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  • Maine

    An appeal from an order on a motion to compel (or to quash) a subpoena would be an interlocutory appeal.

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  • Maryland

    There is a right to appeal to the Maryland Court of Special Appeals and a privilege to seek, by certiorari, a hearing before the Maryland Court of Appeals. Section 12-301 of Maryland's Courts and Judicial Proceedings Article provides that ". . . a party may appeal from a final judgment entered in a civil or criminal case by a circuit court. The right of appeal exists from a final judgment entered by a court in the exercise of original, special, limited, statutory jurisdiction, unless in a particular case the right of appeal is expressly denied by law. In a criminal case, the defendant may appeal even through imposition or execution of sentence has been suspended. In a civil case, a plaintiff who has accepted a remittitur may cross-appeal from the final judgment." Md. Code Ann., Cts. & Jud. Proc. §12-301 (2017).

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  • Massachusetts

    The appeal is an ordinary appeal.

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  • Michigan

    An appeal from an order denying a motion to quash is interlocutory. That is to say, the appeal is made by way of a motion for leave or permission to appeal. There is no appeal of right. The motion for leave to appeal must be made within 21 days of the entry of the order.

    There are no oral arguments on the motion for leave to appeal so all argument must be placed in the brief in support of the motion for leave to appeal. Submit your most persuasive arguments in your brief because it may be your only opportunity.

    As discussed above, the Courts of Michigan often will rule on the substantive issue i.e. whether or not to quash the subpoena, in its order granting or denying the appeal. Thus, you may never get oral argument on the reasons why the subpoena should be quashed or modified. It is essential that the brief in support of the motion for leave to appeal be complete including exhibits.

    There is no transcript requirement on a motion for leave to appeal. However, you may want to order a transcript to reduce the time it takes for the Court to rule if the Court determines that it would like to see the transcript.

    Again if you need to be heard on an expedited basis there are procedures including personal service on the issuer of the subpoena which can get your application for stay and your motion for leave to appeal before a panel of the Court of Appeals immediately.

    Michigan Courts have recognized the need for speedy action in certain appellate situations. In the subpoena setting, the Court has acted promptly. However, don't cry wolf! That is to say, be sure that immediate consideration is necessary. It usually is, but be sure you need special attention before you demand it.

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  • Minnesota

    Review in the Minnesota Court of Appeals is by standard appeal under the state rules of appellate procedure.

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  • Mississippi

    Pursuant to Miss. R. App. 5, appeal from an interlocutory order may be made only after the aggrieved party has sought and obtained permission of the Mississippi Supreme Court. However, the Supreme Court has, on one occasion, dealt with a situation where a litigant, apparently misconstruing the finality of the trial court's ruling, attempted to appeal the order without first obtaining the Supreme Court's permission under Rule 5. See Keyes v. State, 708 So. 2d 540, 543 (Miss. 1998). There, the court concluded that it would advance the ends of justice to reach the merits of the appeal and exercised its authority under Miss. R. App. P. 2 to suspend the appellate rules and decide the case.

    The Mississippi Court of Appeals has at least three times concluded that it may suspend the rules for interlocutory appeals even when no petition for such an appeal has been filed. Hobgood v. Koch Pipeline Southeast, Inc., 769 So. 2d 838, 841 (Miss. Ct. App. 2000); Ann May Enterprises, Inc. v. Caples, 724 So. 2d 1127, 1130 (Miss. Ct. App. 1998); McGriggs v. Montgomery, 710 So. 2d 886, 888 (Miss. Ct. App. 1998).

    However, there is no appeal as of right. The Mississippi Court of Appeals' jurisdiction is limited to those cases that are assigned to it for decision by the Mississippi Supreme Court. Miss. Code Ann. § 9-4-3 (Supp. 2006). Therefore, Miss. R. App. 5 does not -- and legally could not -- grant a litigant the right to petition the Mississippi Court of Appeals for an interlocutory appeal. McGriggs, 710 So. 2d at 888.

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  • Missouri

    See information set out above regarding filing writs of appeal.

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  • Montana

    Extraordinary writs such as mandamus require that there is no adequate remedy through an ordinary appeal under law.

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  • Nebraska

    In an appeal from a final order, the court generally reviews for clear error and/or abuse of discretion. In an original mandamus action, the relator must establish that he has a clear legal right to the relief sought, there is a corresponding clear duty existing on the part of the respondent to perform the act in question, and there is no other plain and adequate remedy available in the ordinary course of the law.

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  • New Hampshire

    The primary vehicle for obtaining a review of a final order by the New Hampshire Supreme Court is Supreme Court Rule 7, Appeal from Lower Court Decision on the Merits. It is also possible to obtain review under Supreme Court Rule 11, Petition for Original Jurisdiction. Appeals to the Supreme Court from a trial court’s decision on the merits are mandatory in all but a few (and irrelevant) categories. Interlocutory appeals and petitions for original jurisdiction remain discretionary and, therefore, the Supreme Court may refuse to accept them.

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  • New Jersey

    The appeal is interlocutory; however, the New Jersey Supreme Court has found that a decision ordering production "is immediately appealable as of right." State v. Boiardo, 82 N.J. 446, 471 (1980). It is made by motion and the court will grant leave to appeal "in the interest of justice." Generally, appeal will be granted.

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  • New Mexico

    See supra pt. VIII(A)(1).

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  • North Carolina

    As discussed supra at Section VII(A)(2), a right of appeal lies from an interlocutory order that affects a substantial right. Where an interlocutory order does not affect a substantial right, a party may seek review by filing a petition for writ of certiorari with the appellate court.

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  • North Dakota

    The legal nature of the appeal is review of a supervisory writ.

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  • Oklahoma

    The Supreme Court's exercise of writ jurisdiction is discretionary, but the assertion that the writ involves an issue of privilege, especially one with constitutional underpinnings, is usually effective in getting the court to assume jurisdiction.  The Oklahoma Supreme Court has said that it will exercise jurisdiction where “valued fundamental–law rights are clearly implicated and their immediate protection from encroachment appears absolutely necessary.”  Gaylord Entertainment Co. v. Thompson, 1998 OK 30, 958 P.2d 128.  In Gaylord, the Supreme Court granted extraordinary relief to direct a trial court to dismiss non–actionable claims, the continued prosecution of which would have had a chilling effect on the defendants’ First Amendment rights of political speech.  The court concluded, among other reasons for its action, that the publication at issue in the case was protected by Oklahoma’s statutory fair report privilege.

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  • Oregon

    No statutory or case law addressing this issue.

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  • Pennsylvania

    The media can appeal immediately, as a matter of right, from a trial court order denying a motion to quash under the collateral order doctrine. The collateral order doctrine applies where (1) the order to be appealed is separable and collateral to the main case; (2) the order impacts rights that are too important to be denied review; and (3) the question presented is such that if review is postponed until final judgment in the case, the claim will be irreparably lost. Pa. R. App. P. 313; Pugar v. Greco, 394 A.2d 542, 545 (Pa. 1978); see also Commonwealth v. Flor, 136 A.3d 150, 155 (2016) (“As we established in Harris, discovery orders rejecting claims of privilege and requiring disclosure constitute collateral orders that are immediately appealable under Rule 313.”). In Castellani v. Scranton Times, L.P., 956 A.2d 937, 943 (Pa. 2008), the Supreme Court held that an order in a defamation case compelling a media defendant to disclose information subject to the Pennsylvania Shield Law was immediately appealable as a collateral order. In such cases, the question presented is whether the information sought is protected by the privilege.

    In grand jury proceedings, however, the collateral order doctrine is unavailable, thereby forcing the subpoenaed party to suffer contempt in order to be able to appeal. As the Supreme Court explained in In re the Twenty-Fourth Statewide Investigating Grand Jury, “the determination of whether a particular order is separable and collateral from a grand jury proceeding is a difficult, if not impossible, undertaking” because grand jury secrecy leaves the court “with no record to use in determining whether or not the contested order is collateral to the proceeding.” 907 A.2d 505, 510 (Pa. 2006) (citing In re Grand Jury Subpoena, 190 F.3d 375, 384 (5th Cir. 1999)). As a result, “[o]ne seeking to challenge the propriety of a grand jury subpoena must generally choose between complying with the subpoena and litigating the validity through contempt proceedings.” Id. In that case, the court quashed an appeal by a newspaper that had received a grand jury subpoena because it had chosen to provide the subpoenaed material to the prosecutor in a “compromise arrangement” approved by the judge supervising the grand jury to gain a stay pending appeal. Id. at 510-11.

    When a reporter is held in contempt, the appeal can challenge the compelled disclosure, the finding of contempt, and the contempt sanction. See, e.g., Commonwealth v Bowden, 838 A.2d 740 (Pa. 2003).

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  • Rhode Island

    Because an appeal of this nature is likely not from a final judgment, it would be considered interlocutory under Rule 13 of the Rhode Island Supreme Court Rules of Civil Procedure.

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  • South Carolina

    Appeal would be as a matter of right.

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  • South Dakota

    Either appeal of right or appeal with permission. Mandamus/prohibition are certainly possible remedies, particularly when the trial court neglects to enter an order.

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  • Tennessee

    The appeal is an ordinary appeal, except that (1) the appeals court performs de novo review with respect to the three shield law factors, and (2) the appeal is expedited. See Tenn. Code Ann. § 24-1-208(c)(3)(A).

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  • Texas

    Rule 52 of the Texas Rules of Appellate Procedure authorizes both a writ of mandamus and habeas corpus, and the contents of a petition for writ of mandamus and habeas corpus are the same. All statements in the petition must be verified by affidavit and the petition must follow the instructions of Rule 52 carefully. Tex. R. App. P. 52. The petition must include the following: identification of the parties; a table of contents; an index of authorities; a statement of the case; a statement of jurisdiction; a list of the issues presented; a statement of the facts; the argument for relief; a prayer; and, an appendix containing the order of the trial court denying the motion to quash. Id. If the relief being requested is from confinement, the petition for habeas corpus should also include proof that the person seeking relief is actually being confined or restrained. Additionally, the person filing the petition must file and certify by affidavit every document that is related to the claim for relief that was previously filed in the trial court. Id.

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  • Utah

    There is no statutory or case law addressing this issue.

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  • Vermont

    Appeals to the Vermont Supreme Court of questions of law, such as the existence and scope of the reporter’s privilege, are reviewed de novoState v. Stern, 2018 VT 36, ¶ 5, 186 A.3d 1099, 1102 (Vt. 2018).  However, factual issues are not, and the appellate court will examine the record and proceedings below and determine whether the court’s findings below are “clearly erroneous” or constitute an “abuse of discretion.”  Kneebinding, Inc. v. Howell, 2018 VT 101, ¶ 26 (Vt. 2018).

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  • Virginia

    There is an appeal of right from the district court to the circuit court. There is an appeal of right from the circuit court to the Court of Appeals in most cases falling within their civil appellate jurisdiction. Appeals of criminal convictions to the Court of Appeals is by petition. There is an appeal of right from the circuit court to the Supreme Court for death penalty convictions, writs of habeas corpus, from the final decision of the State Corporation Commission, or from proceedings filed under Virginia Code §§ 54.1-3935 or 54.1-3937. Virginia Code § 17.1-406(B). All other cases within the appellate jurisdiction of the Supreme Court are to be made via petitions for discretionary review. Virginia Code § 8.01-670. A mandamus action “lies to compel, not to revise or correct action, however erroneous it may have been, and is not like a writ of error or appeal, [which is] a remedy for erroneous decisions.” Bd. of Supervisors v. Combs, 160 Va. 487, 498, 169 S.E. 589, 593 (1933).

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  • Washington

    If review is accepted by the filing and granting of a motion for discretionary review, the case is treated as an appeal. RAP 6.2(a), 7.2.

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  • West Virginia

    The state Supreme Court dockets all timely and properly filed appeals.

    A party alternatively may seek extraordinary relief in the Supreme Court by filing a Petition for Writ of Prohibition or for Writ of Mandamus to preclude enforcement of the circuit court's ruling or to compel the court to rule in the correct manner. Petitions for extraordinary writs, such as Prohibition or Mandamus, are discretionary, and pursuant to Rule 16(a) of the Rules of Appellate Procedure, “discretion [is] sparingly exercised.”  However, historically, in First Amendment cases, the state Supreme Court has been much more receptive to accepting and docketing an extraordinary writ than in other cases. Therefore, pragmatically speaking, it is almost always beneficial to attempt the route of an extraordinary writ in reporter’s privilege cases in West Virginia, and if the court refuses to docket the writ, a direct appeal still may be made thereafter.

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  • Wisconsin

    There is no authority in Wisconsin discussing the nature of appeals concerning a motion to quash a subpoena based on the reporter's privilege.

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  • Wyoming

    There are no cases which indicate that the nature of an appeal of a denial of a motion to quash a subpoena served upon the media would be any different than any other appeal.

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