In Woods v. Georgia Pacific Corp., 2008 WL 11350078 (S.D. Ga. 2008), although the district court compelled disclosure of some materials, it required footage subject to the subpoena to be submitted for in camera review for the court to first determine if the materials should be provided to the subpoenaing party.
In Continental Cablevision, the district court held that "if the court cannot strike the balance on the basis of the showing made by the reporter and the party seeking discovery, a court may conduct in camera review of the information sought to the extent necessary." Continental Cablevision, Inc. v. Storer Broad. Co., 583 F. Supp. 427, 436 (E.D. Miss. 1984).
The Fifth Circuit has applied the reporter's privilege equally to disclosures made in camera to the court. Before requiring in camera disclosure, the party seeking disclosure must pass the Miller test by demonstrating the party's compelling interest in the information; that the information cannot be obtained from another source; and that the information is relevant. Selcraig, 705 F.2d at 798-99.
However, in Cinel, the District Court held that Section 45:1459 of the Louisiana shield law does not apply to information sought by the court for sealed, in camera, inspection. Cinel v. Connick, 792 F. Supp. 492, 499 (E.D. La. 1992). The court balanced the need for the information against the "chilling effect" that such "extremely limited disclosure" could have on the media's First Amendment rights as defined in Ridenhour. Because the media defendants could not prove such disclosure would "chill" freedom of the press, the Court held that the privilege did not prevent in camera and under seal disclosure of inventories of unpublished information. Id. at 500.
In criminal cases, the court must conduct an in camera review of any documentary evidence that may be protected by privilege before ordering disclosure, unless the subpoenaed individual or entity to whom the subpoena is directed provides in writing reasons for the failure to submit the evidence for in camera review. See Me. R. Crim. P. 17(d) (attendance of witnesses); Me. R. Crim. P. 17A(f) (documentary evidence or tangible objects).
"The court has the duty, where applicable, to review in camera any evidence to determine its actual relevance before ordering it to be disclosed." Bauer v. Gannett Co., Inc. (Kare 11), 557 N.W.2d 608, 613 (Minn. Ct. App. 1997), overruled to the extent inconsistent withWeinberger v. Maplewood Rev., 668 N.W.2d 667 (Minn. 2003); see also State v. Turner, 550 N.W.2d 622, 629 (Minn. 1996) (requiring in camera review of journalist's unpublished photos before disclosure compelled).
The shield law does not require in camera review. Nevertheless, one may be conducted in the context of a grand jury subpoena where a subpoena seeks confidential source information. Tex. Code Crim. Proc. art. 38.11, §4(c). If the information or document was disclosed in violation of an oath given to a juror or a witness in a grand jury proceeding, a court has the discretion to conduct an in camera hearing. Id. In such an instance, a journalist can be compelled to testify if the person seeking the testimony, production or disclosure makes a clear and specific showing that the subpoenaing party has exhausted reasonable efforts to obtain the confidential source information from alternate sources. Id. The court may not order the production of the confidential source until a ruling has been made on the motion. Id.