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4. Judicial approval

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  • 10th Circuit

    None is required. See Fed. R. Civ. P. 45(a)(3).

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  • 1st Circuit

    The First Circuit does not have any rules requiring a judge or magistrate to approve a subpoena before a party can serve it on a reporter.

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  • 2nd Circuit

    A party ordinarily need not receive any special approval from a judge or magistrate to serve a subpoena in the Second Circuit. Some district judges require judicial approval prior to filing motions. All local rules for Second Circuit courts are available online at www.ca2.uscourts.gov/Docs/Rules/LR.pdf.

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  • 3rd Circuit

    Neither the applicable rules nor case law in the Third Circuit appear to require prior judicial approval of a subpoena issued by counsel to the news media.

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  • 4th Circuit

    The local rules for district courts in the Fourth Circuit do not require that a judge or magistrate approve subpoenas before they may be served, except in some jurisdictions if the issuing party is pro se. As noted above, when the federal government is issuing a subpoena to the news media, it must obtain the express authorization of the Attorney General. 28 C.F.R. § 50.10.

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  • 5th Circuit

    No reported decision of the Fifth Circuit has addressed whether a judge or magistrate must approve a subpoena before a party can serve it on a journalist or media organization. 28 C.F.R. § 50.10 outlines the government's responsibilities when subpoenaing the media. See In re Grand Jury Subpoenas, 2001 WL 940433, 29 Media L. Rep. 2301 (5th Cir. Aug. 17, 2001) (per curiam) (unpublished).

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  • 6th Circuit

    Neither a judge nor magistrate need to approve a subpoena before its issuance or service. A subpoena duces tecum may be issued by an attorney with no involvement by a court. Fed. R. Civ. P. 45(a)(3).

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  • 7th Circuit

    There are no special requirements concerning a member of the news media and judicial approval. The normal procedures under Federal Rule of Civil Procedure 45 or Federal Rule of Criminal Procedure 17 would apply. There are no Seventh Circuit Rules or Local Rules that apply.

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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

    Neither a judge nor a magistrate needs to approve a subpoena before a party can serve it. Subpoenas are issued either by the clerk of the court upon the request of a party or an attorney if that attorney is authorized to practice in the issuing court. Fed. R. Civ. P. 45 (a)(3).

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  • Alabama

    In Alabama, the issuance of a subpoena does not require judicial approval unless a timely objection has been made. If a person or party serves an objection to the issuance of a subpoena for production or inspection within ten (10) days of the service of the notice of intent to serve a subpoena for production or inspection, the subpoena will not issue without an order from the court. ALA. R. CIV. P. 45 (a)(3)(B).

    In certain circumstances, judicial approval may be required to serve a notice of intent to serve a subpoena for production or inspection. Alabama law requires parties to a civil action to provide every other party with a fifteen- (15-) day notice prior to issuing a subpoena for the production or inspection of documents. ALA. R. CIV. P. 45 (a)(3)(A). The subpoenaing party may serve the fifteen-day notice without leave of court upon the expiration of forty-five (45) days after service of the summons and complaint. Id. If the defendant has already sought discovery in the action, the subpoenaing party may serve the notice without leave of court within the forty-five- (45-) day period. Id.

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  • Alaska

    Court rules do not contain any special rules or procedures with respect to subpoenaing members of the news media. No law requires a subpoenaing party to obtain prior approval of a judge or magistrate before subpoenaing a reporter. Alaska appellate courts have not had occasion to squarely address the existence or scope of a reporter's privilege, and neither they nor the trial courts have had occasion to address this issue.

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  • Arizona

    A judge or magistrate need not approve a subpoena in any particular circumstances before a party can serve it. However, if the affidavit accompanying the subpoena "is controverted or a motion to quash the subpoena or for a protective order is filed by the person subpoenaed, the command of the subpoena shall be postponed until a hearing is held and an order is entered by the court." A.R.S. § 12-2214(C).

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  • Arkansas

    Under Arkansas rules, there is no requirement for judicial approval to issue a subpoena. Any party may request a subpoena for witnesses or documents to be produced at trial or for a deposition; upon such a request, the court clerk "shall issue" such a subpoena. Subpoenas may also be issued by an attorney licensed to practice in Arkansas in any case in this state in which the attorney is counsel of record. Ark. R. Civ. P. 45 (a), (d)-(e).

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  • California

    California law allows for the issuance of a subpoena without prior judicial approval. See Cal. Code Civ. Proc. § 2020.210. The subpoena may be issued by the court clerk or by any attorney of record in the case. Id. However, to protect a reporter against a risk of inadvertent waiver of the reporter’s rights, California law requires specific notice to the reporter and to the news organization that employs or contracts with the reporter, including, “at a minimum, an explanation of why the requested records will be of material assistance to the party seeking them and why alternate sources of information are not sufficient to avoid the need for the subpoena.” Cal. Code Civ. Proc. § 1986.1(b).

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  • Colorado

    The subpoena may be issued without a court order by an attorney of record or by the clerk of the court in which the action is pending. Issuing a subpoena does not require approval from a judge or magistrate, except in cases where leave of court is required under Rule 30(a)(2).

    There is some limitation of a Colorado court's power to compel an individual to appear as a result of a subpoena. Colorado courts do not have the power to compel nonresident witnesses to appear outside Colorado or to produce documents outside Colorado. See Minnesota v. District Court, 395 P.2d 601 (Colo. 1964); Solliday v. District Court, 313 P.2d 1000 (Colo. 1957) (any reference to the service of subpoenas on nonresident witnesses must be read to be subject to the implied limitation that those summoned must be within the jurisdiction of the court or subject to such "jurisdiction" based on a uniform act or compact with a sister state).

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  • Connecticut

    Generally, no judge or magistrate need approve a subpoena issued by a commissioner of the court, including attorneys admitted to practice before Connecticut courts.

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  • D.C. Cir.

    Judicial approval is not necessary for a civil subpoena issued under Fed. R. Civ. P. 45. However, with regard to criminal subpoenas issued under Fed. R. Crim. P. 17, defense counsel upon an ex parte application may request that the court issue a subpoena provided that the defendant makes a satisfactory showing that the defendant is financially unable to pay the witness and the testimony of the witness is necessary to an adequate defense.

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  • Delaware

    "The Prothonotary shall issue a subpoena, signed but otherwise in blank, to a party requesting it, who shall complete it before service. A Delaware attorney, as an officer of the Court, may also issue and sign a subpoena." Super. Ct. Civ. R. 45 (a)(3). "A subpoena may be served by the Sheriff or by any person who is not a party and is not less than 18 years of age." Super. Ct. Civ. R. 45 (b)(1).

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  • District of Columbia

    Judicial approval is not necessary for a civil subpoena issued under SCR-Civ. 45.  However, for criminal matters, under SCR-Crim. 17(b)(2), defense counsel upon an ex parte application may request that the court issue a subpoena provided that the defendant makes a satisfactory showing that the defendant is financially unable to pay the witness and the testimony of the witness is necessary to an adequate defense.

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  • Florida

    Florida does not require that the subpoenaing party obtain judicial approval before subpoenaing a professional journalist. However, when the journalist objects to the subpoena or files a motion to quash, the judge is required to hold a hearing as to whether the privilege is overcome. See 90.5015(3), Fla. Stat. (2016).

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  • Georgia

    Generally, a judge or magistrate does not need to approve a subpoena prior to it being served by a party. Subpoenas are issued in blank by the clerk under the seal of the court. O.C.G.A. § 24-13-21.

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  • Hawaii

    The subpoena does not need to be approved by a judge or magistrate before a party may serve it. The subpoena is issued by the clerk of the court.

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  • Idaho

    No prior judicial approval is required. The clerk of the court may issue a subpoena, in blank, to a party requesting it or an attorney licenses in Idaho may issue and sign a subpoena. See Idaho Rule of Civil Procedure 45(a); Idaho Criminal Rule 17(a).

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  • Illinois

    The Illinois Code of Civil Procedure, 735 ILCS 5/2-1101, states that “[a]n order of court is not required to obtain the issuance by the clerk of a subpoena duces tecum.” Other than the Shield Law, there is no Illinois statutory or case law specifically addressing judicial approval for a subpoena to a member of the news media.

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  • Indiana

    An attorney can issue a subpoena as an officer of the court in most situations or can have the court clerk issue a subpoena. See Ind. R. Trial P. 34, 45(E); Ind. R. Crim. P. 2; Ind. Code § 35-37-5-2; Ind. Code § 35-34-2-5.

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  • Iowa

    Judicial approval is not required for the issuance of a subpoena. Iowa Code § 622.63. A clerk's subpoena or attorney's subpoena often are used.

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  • Kansas

    There are no circumstances in which a judge or magistrate must approve a subpoena prior to issuance and service.

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  • Kentucky

    Kentucky law does not require that a judge or magistrate approve a subpoena before service. Ky. R. Civ. P. 45.01; Ky. R. Crim. P. 7.02.

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  • Louisiana

    There is no provision in the statutes or case law for prior "judicial approval" of subpoenas.

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  • Maine

    In criminal cases, if a party or its attorney knows that a subpoena seeks the production of evidence that “may be protected from disclosure by privilege” the party must file a motion in limine before serving the subpoena.  M.R.Crim.P. 17(d); 17A(f) (same).  In civil cases, prior judicial approval is not ordinarily required.  In both criminal and civil cases, the shield law requires a court order before information subject to the reporters’ privilege may be disclosed.  16 M.R.S.A. § 61(2).

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  • Maryland

    There is no requirement for judicial approval before a subpoena can be served.

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  • Massachusetts

    For rules relating to service of subpoenas, see Mass. R. Civ. P. 45; Mass. R. Crim. P. 17.

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  • Michigan

    Subpoenas must be signed by a magistrate/judge or by an attorney in the case. In most circumstances subpoenas are simply prepared and signed by an attorney and then served

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  • Minnesota

    A person seeking disclosure of information protected under the shield statute may apply to the district court for an order compelling disclosure. Minn. Stat. § 595.024 subd. 1. Disclosure is required only if the court grants the order upon a determination that the statutory conditions have been met.

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  • Mississippi

    Judicial approval is not required.

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  • Montana

    A judge or magistrate must approve a criminal investigative subpoena, but need not approve a subpoena in a civil case.

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  • Nebraska

    Judicial approval is not required before a subpoena is served.

    However, to subpoena a witness in the context of grand jury proceedings, the Attorney General or County Attorney must file an application directly to the court. A statute specifies that grand jury subpoenas under the wiretap statutes do not suspend the shield law privilege. See Neb. Rev. Stat. § 86-708 (Reissue 2014).

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  • New Hampshire

    Judicial approval is not required.

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  • New Jersey

    There is no judicial approval required to serve a subpoena. Only a criminal defendant may compel the testimony of a newsperson and then only if the information held by the newsperson is "relevant, material and necessary to the defense," cannot be procured from any "less intrusive source," and that "the value of the material sought as it bears on the guilt or innocence outweighs the privilege." This balancing must be done by the court.

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  • New Mexico

    Subpoenas can be served on anyone, including journalists, without prior judicial approval.

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  • North Carolina

    A subpoena requiring a witness to testify or produce documentary evidence can be issued at the request of any party by the clerk of court where the trial or hearing is being held. N.C. R. Civ. P. 45(a). Any superior court judge, district court judge, magistrate, or attorney as officer of the court may also issue and sign a subpoena. N.C. R. Civ. P. 45(b).

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  • North Dakota

    A judge or magistrate does not need to approve a subpoena under any particular circumstances before a party can serve it.

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  • Ohio

    No specific requirements.

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  • Oklahoma

    A subpoena in Oklahoma does not require court approval.

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  • Oregon

    None required under the ORCP, except for any requested shortening of the time in which to respond.

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  • Pennsylvania

    There is no requirement under either the Shield Law or the First Amendment privilege that the subpoenaing party obtain court approval before serving a subpoena on a reporter. Under the Pennsylvania Rules of Civil Procedure, however, a party serving a subpoena duces tecum must give twenty days’ notice to the other parties before serving a third-party subpoena; if the other parties object, the proponent of the subpoena must seek court approval before serving the subpoena.

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  • Rhode Island

    Judicial approval is not needed.

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  • South Carolina

    Under South Carolina Rules of Civil Procedure subpoenas are issued in blank by the clerks of court in each of the counties, or the subpoena may be issued by an attorney licensed to practice in the state. For criminal courts the subpoenas are to be issued by the clerk of court.

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  • Tennessee

    Judicial approval is not required, but subpoenas must generally be issued by a court clerk.

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  • Texas

    Subpoenas generally do not have to be approved by a judge or magistrate before a party can serve them and can usually be issued by the clerk of court, a court reporter, or an attorney licensed to practice in the state. But, under the shield law, criminal subpoenas issued to journalists must be signed by the elected district attorney, elected criminal district attorney, or elected county attorney as applicable. Tex. Code Crim. Proc. art. 38.11, §4(d). If the elected district attorney, criminal district attorney, or county attorney has been disqualified, recused, or has resigned, the subpoena must be signed by the person succeeding such person. Id. If the elected representative is not in the jurisdiction, the highest ranking assistant to the elected officer must sign the subpoena. Id. Additionally, where a grand jury wishes to subpoena a witness located outside of the county, it must apply to the district court for a subpoena for that witness. Tex. Code Crim. Proc. art. 20.11.

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  • Utah

    In the case of a judicially approved criminal investigation used as an alternative to the grand jury process, a prosecutor seeking to subpoena any person must first apply to a state trial judge for approval to serve a subpoena. See Utah Code Ann. § 77-22-2(3)(b)(i). The prosecutor must “show that the requested information is reasonably related to the criminal investigation authorized by the court.” Utah Code Ann. § 77-22-2(3)(b)(ii).

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  • Vermont

    A subpoenaing party need not obtain judicial approval before serving a subpoena in civil proceedings and in felony criminal cases. No subpoenas seeking depositions in criminal misdemeanor cases may be issued except by agreement of the parties or after approval of the court for good cause shown. See V.R.Cr.P. 15(e)(4). The court may consider, among other things, “the consequences to the defendant, the importance of the witness’s testimony, the complexity of the issues involved, the complexity of the witness’s expected testimony (e.g., experts), and any other opportunities available to the defendant to discover the information sought by the deposition.” Id. Discovery may only be obtained in any probate court proceeding upon order of the judge after notice and hearing. See V.R.P.P. 26. Discovery may only be ordered upon a finding that it “would not be unduly burdensome or expensive, taking into account such factors as the needs of the case, the amount in controversy, limitations on the parties’ resources and the importance of the issues at stake in the litigation.” Id.

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  • Virginia

    A judge or magistrate does not need to approve a subpoena before it may be served on a reporter.

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  • Washington

    Generally, in Washington State, an attorney of record can issue a subpoena without prior judicial approval, with the exception that leave of court must be obtained "if the plaintiff seeks to take a deposition prior to the expiration of 30 days after service of the summons and complaint upon any defendant . . . ." CR 30(a).

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  • West Virginia

    In West Virginia, a lawyer may issue and sign a subpoena as an officer of the court. W.Va.R.Civ.P 45(a)(3). A judge or magistrate need not approve a subpoena before a party can serve it.

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  • Wisconsin

    Subpoenas issued by an attorney do not require judicial approval, but they must be approved and signed as mandated by Wis. Stat. § 885.01. The shield law changes this requirement for subpoenas issued to any “news person,” however:  only “a circuit court may issue” such a subpoena.  Wis. Stat. § 885.14(2)(b).

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  • Wyoming

    No judicial approval is necessary.

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