3. Other remedies

There is no reported First Circuit decision specifically addressing whether courts may impose remedies other than those discussed in the sections above. However, under New Hampshire common law, which the First Circuit applied in Gray, the court noted that, where a plaintiff had exhausted all reasonable means of identifying a source and where the defendant book author refused to reveal the identity of a source, the plaintiff would be entitled to a presumption that no source existed. Gray v. St. Martin’s Press, 221 F.3d 243, 252 (1st Cir. 2000).

There appear to be no other remedies for non-compliance in the Second Circuit.

Courts in the Third Circuit do not appear to have expressly addressed this point in a relevant context.

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

No reported decision of the Fifth Circuit addresses whether additional remedies are applicable against the media, such as default judgment or imposition of presumptions of actual malice or the absence of an actual source.

Federal courts in the Sixth Circuit have not recognized any remedies for refusal to comply with a subpoena other than contempt.

There is no statutory or case law addressing this issue.

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

There is no statutory or case law addressing this issue.

There is no Alabama statutory or reported case law addressing this issue.

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 in a number of cases, and in none of these has testimony or production of documents been compelled.

There is no statutory or case law addressing this issue.

There are no reported cases in Arkansas where a court has imposed an alternative remedy, such as default judgments against the media, presumptions of malice or bad faith, or presumptions that there is no source.

California’s shield laws only protect against a finding of contempt. Cal. Const. art. I, § 2(b); Cal. Evid. Code § 1070. Consequently, “[a] party to civil litigation who disobeys an order to disclose evidence [] may be subject to a variety of other sanctions, including the entry of judgment against him.” Mitchell v. Superior Court, 37 Cal. 3d 268, 274, 690 P.2d 625, 208 Cal. Rptr. 152 (1984). A reporter who is not a party to the litigation also may be subject to other civil remedies; however, as the California Supreme Court has recognized, those remedies are essentially meaningless. See New York Times Co. v. Superior Court, 51 Cal. 3d 453, 463-64, 796 P.2d 811, 273 Cal. Rptr. 98 (1990) (California Code of Civil Procedure § 1992, which provides civil remedy for disobeying a subpoena, is “not effective as a practical matter” because remedy provided is minimal).

In accordance with Rules 26 and 37 of the Colo. R. Civ. P., trial courts have broad discretion to fashion sanctions for non-compliance with discovery rules. Prefer v. Pharm-NetRx, LLC, 18 P.3d 844 (Colo. App. 2000). The sanctions range from fines to dismissal of claims. The sanction of dismissal of claims is only appropriate for willful or deliberate disobedience of discovery rules. Id.

There are no reported cases regarding other remedies except for Driscoll v. Morris, 111 F.R.D. 459 (D. Conn. 1986), which held that, the plaintiff-reporter having placed the confidentiality of his sources at issue, his failure to disclose their identity would expose him to sanctions under Fed. R. Civ. P. 37.

No statutory or case law addressing this issue exists.

There is no statutory or case law addressing this issue.

No statutory or case law addressing this issue exists.

Florida courts do not appear to have addressed this issue.

None.

In DeRoburt v. Gannett Co., 507 F. Supp. 880 (D. Haw. 1981), the federal district court in Hawai'i held that a reporter's refusal to comply with an order to disclose his or her sources of information gives rise to a presumption that the reporter had no source. The presumption may be removed by disclosure of the sources at a reasonable time before trial.

The court also has the power to impose sanctions against the party that has refused to provide testimony or information. These sanctions, which are left to the discretion of the court under the court rules, can range from striking a particular defense to striking all defenses and entering judgment against the party on all liability issues. Such sanctions were imposed by the trial court in the Sierra Life case, but were reversed by the Idaho Supreme Court on grounds unrelated to the issue of whether the trial court had the power to impose such sanctions. See Sierra Life Ins. Co. v. Magic Valley Newspapers, Inc., 101 Idaho 795, 623 P.2d 103 (1980).

In the ordinary case, Idaho courts have said that there is no appeal of right from a contempt order. It is not included in the listing of appealable judgments and orders contained in Rule 11 of the Idaho Appellate Rules. Similarly, contempt orders are deemed “final and conclusive” by statute. Idaho Code § 7-616. However, the Idaho Supreme Court has ruled that it has plenary power to review contempt orders and although it has not gone so far as to say it will absolutely not consider a traditional “appeal” of a contempt order, it has said on several occasions that the writ of review is the most appropriate means by which to seek appellate review of a contempt order. See, e.g., Marks v. Vehlow, 105 Idaho 560, 671 P.2d 473 (1983).

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

Courts generally have discretion to order remedies for contempt, such as default judgments against the media or presumptions of malice in libel cases. See Prime Mortg. USA, Inc. v. Nichols, 885 N.E.2d 628, 650–51 (Ind. Ct. App. 2008).

Failure to obey a subpoena also subjects the individual to civil liability:

"For a failure to obey a valid subpoena without a sufficient cause or excuse, or for a refusal to testify after appearance, the delinquent is guilty of a contempt of court and subject to be proceeded against by attachment. The delinquent is also liable to the party by whom the delinquent was subpoenaed for all consequences of such delinquency, with fifty dollars additional damages.”

Iowa Code § 622.76.

There is no statutory or case law specifically addressing the issue of what other remedies might be available. As noted above, however, there is reason to believe that both state and federal courts will impose media-specific sanctions in cases in which the media representative is a defendant.

No reported decisions.

"A person who, without reasonable excuse, fails to obey a subpoena may be adjudged in contempt of the court which issued the subpoena. The court may also order a recalcitrant witness to be attached and brought to court forthwith or on a designated day." La. Code Civ. Proc. 1357.

If the reporter's privilege is claimed in a defamation suit and "a legal defense of good faith has been asserted by a reporter" with respect to an issue upon which the reporter alleges to have obtained information from a confidential source, the burden of proof shall be on the reporter to sustain this defense. La. R.S. 45:1454.

No Maine cases.

Massachusetts Rule of Civil Procedure 37(b)(2) lists remedies the court may use when a party fails to comply with a discovery order. They include: ordering that the matters regarding which the order was made be taken to be established; refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing designated matters in evidence; striking out pleadings or parts thereof, staying further proceedings until the order is obeyed, dismissing the action, or rendering a judgment by default against the disobedient party; treating as a contempt of court the failure to obey any orders; and/or requiring the party to pay reasonable expenses, including attorney's fees, caused by the failure. Mass. R. Civ. P. 37(b)(2).

In Ayash v. Dana Farber Cancer Inst., 30 Med. L. Rep. 1825 (Mass. Super. Ct. 2001), the court entered a default judgment against the Boston Globe for failing to comply with a discovery order. The Globe was also found in contempt in that case.

There have been no appellate cases discussing this precise issue. However, it is clear that courts in Michigan have been willing to impose sanctions on parties who refuse to comply with discovery demands. See Kalamazoo Oil Co. v. Boerman, 242 Mich. App. 75, 87, 618 N.W.2d 66 (2000) (allowing sanctions when a party refuses discovery). Thus, these are still issues of first impression in Michigan.

In a defamation action against the news organization, the normal civil sanctions for contempt could apply, including prohibitions on evidence, orders that certain matters will be taken to be established, orders striking pleadings, and default judgment. Minn. R. Civ. Proc. 37.02(b). In McNeilus v. Corporate Report, Inc., the court allowed the publisher to protect the identity of its confidential source, but held that the publisher could not introduce into evidence at trial any confidential information or documentation that had not been disclosed to plaintiff at least ten days prior to trial. 21 Media L. Rep. 2171, 2175 (Dodge Cty., Minn., Dist. Ct. 1993)

Damages are available under Minn. Stat. § 588.11 for persons injured by violation of a court order. An award under this statute requires a showing of actual injury and the extent of that injury. See Campbell v. Motion Picture Mach. Operators, 186 N.W. 787, 789 (Minn. 1922) (holding that a contempt award for the benefit of the injured party "must be based on proof of the damage actually sustained"); Hanson v. Thom, 636 N.W.2d 591, 593-94 (Minn. App. 2001) (holding that award under Minn. Stat. § 588.11 is limited to that necessary to make aggrieved party whole for damages actually suffered, not to penalize the party in contempt); Time-Share Systems, Inc. v. Schmidt, 397 N.W.2d 438, 441 (Minn. App. 1986) (stating that "'indemnity must be based on proof of damages actually suffered or it cannot be sustained'" (quoting Westgor v. Grimm, 381 N.W.2d 877, 880 (Minn. App. 1986)).

There is no other statutory or case law addressing this issue. See Jeffries v. State, 724 So. 2d 897, 899 (Miss. 1998) (where a trial court's order barring reporter from reporting on juvenile record, after it had been discussed in open court, was presumptively invalid prior restraint on speech).

There is no statutory or case law addressing this issue, and no known instances on the state level.

In a civil case in which the person refusing to obey the lawful subpoena is a party, they may be assessed costs, including attorney fees, or be limited in the evidence they can present in the case, Rule 37, M.R.Civ.P.

It is conceivable that other remedies such as adverse presumptions or jury instructions, or perhaps even default judgment, could be utilized where the media is a party. The author does not believe that any such remedies have been utilized in Nebraska.

The Nevada Supreme Court, however, has held that "once a media litigant has invoked the protection of the news shield statute to resist discovery, the defendant may not later rely on the privileged information as a defense." Diaz v. Eighth Judicial Dist. Court, 116 Nev. 88, 993 P.2d 50, 59 (2000). It has also held that "to the extent that a plaintiff in a defamation action is required to prove that a media litigant either knew that the published information was false or acted in reckless disregard of the truth, an assertion of the shield statute may result in discovery sanctions." Id. at n.6.

Where the New York Times rule applies in a case against the media and the reporter refuses to disclose a confidential source after being ordered to do so, "there shall arise a presumption that the defendant has no source," which may be removed by disclosure "a reasonable time before trial." Downing v. Monitor Publishing Co., Inc., 120 N.H. 383 (1980).

None.

No New Mexico law specifically addresses the consequences of refusal to obey an order to disclose confidential information or sources. Regarding discovery sanctions generally, see Rule 1-037(B) NMRA.

Under CPLR § 2308(a), where a witness has been issued a judicial subpoena and is a party to the action, the court may punish non-compliance with the subpoena by striking out the party's pleading. According to one commentator, the court may also have discretion to invoke the lesser sanctions contemplated by CPLR § 3126 for disobedience of pre-trial disclosure orders (e.g., other than striking pleadings, an order resolving issues related to the non-disclosed evidence in favor of the movant and an order prohibiting the disobedient party from producing certain evidence or witnesses in support of his or her case). David D. Siegel, Practice Commentaries, McKinney's Consolidated Laws of New York Annotated § 2308. In any event, New York courts view the remedy of striking a party's pleadings as a drastic one and not to be lightly invoked. See Oak Beach Inn Corp., 62 N.Y.2d at 166, (alternative sanctions to contempt provided for by CPLR § 3126 regarded as at least as serious as contempt; "[a] newspaper involved in a substantial libel action may well find the threat of contempt less intimidating than the thought of being entirely stripped of its defenses if it continues to preserve the confidentiality of its source."); Segal v. Princess Ann Girl Coat, Inc., 285 A.D. 811 (1st Dep't 1955) (striking of pleadings for failure to comply with court order or subpoena characterized as an "extreme penalty"). Other consequences may include precluding a reporter from relying on the testimony of undisclosed sources, but this remedy, as well, has been narrowly construed. See section on“Jail” above.

No reported cases.

All remedies against a non-complying reporter would be a general application of the rules. No reporter in North Dakota has challenged the application of criminal sanctions for non-compliance.

There are no reported Oklahoma cases in which sanctions have been imposed on the media defendant for refusal to disclose sources or unpublished information.  In a defamation case, the court could probably grant default judgment, instruct the jury to presume that the reporter did not have any source he declined to identify, or refuse to permit the defendant to assert any defense based on the undisclosed information.

No statutory or case law addressing this issue.

If a reporter or media entity is a party to a civil case, no adverse inference may be drawn at trial from the media’s reliance on the Shield Law, but neither can an inference of reliability or accuracy of the information be drawn from the existence of an unidentified source. Sprague v. Walter, 543 A.2d 1078, 1086 (Pa. 1988).

There is no further statutory or case law addressing this.

No special remedies.

There is no statutory or case law concerning other remedies available for a journalist's refusal to obey a court order to testify.

There is no rule in Texas that, where a party refuses to testify about certain facts, the trier of fact may infer a presumption of actual malice against that party. But, Texas does have a spoliation rule applicable to parties (not just media) that allows a presumption to attach where evidence is intentionally destroyed to avoid disclosure. Such presumption can be defended against if the party can demonstrate that the evidence was destroyed in the regular course of business, rather than intentionally or negligently. See e.g., Doe v. Mobile Video Tapes, Inc., 43 S.W.3d 40 (Tex. App.—Corpus Christi 2001) (holding that spoliation of videotapes of entire television broadcasts did not render remaining portions inadmissible in action for invasion of privacy and defamation, or entitle plaintiffs to presumption that missing portions of broadcasts were unfavorable to television station, where spoliation occurred in regular course of station's business and, thus, did not amount to negligent or intentional destruction).

There is no statutory or case law addressing this issue.

Vermont law does not authorize any additional penalties for civil or criminal contempt.

There are no reported cases discussing other remedies, such as default judgments against the media, with respect to the reporter’s privilege.

Not applicable.

In West Virginia, there have been no cases addressing penalties for noncompliance in a libel case. Potentially, in a civil case where the journalist is a party and refuses to comply with an order compelling disclosure of a source or other information, a remedy such as default judgment could be imposed by the court against a media (or any other) defendant. There is no statute or caselaw, however, that allows a court to instruct a jury that there is a "presumption of actual malice" or a presumption that there is no actual source.

There are no other remedies to enforce disclosure in Wisconsin.

There are no known cases where other remedies, such as default judgments, have been assessed against reporters for failure to comply with a subpoena.