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4. Standard of review


  • 10th Circuit

    The Tenth Circuit reviews questions involving the interpretation and application of constitutional (First Amendment) provisions by applying the doctrine of "independent appellate review." See, e.g., Melton v. City of Oklahoma City, 928 F.2d 920, 927-28 (10th Cir. 1991)

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  • 11th Circuit

    The appellate court’s review of a district court’s determination of state law, including state privileges, is de novo, as is the appellate court’s review of federal constitutional privilege issues.  Price v. Time, Inc., 416 F. 3d 1327, 1334 (11th Cir. 2005).

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  • 1st Circuit

    In reviewing a lower court’s decision on a motion to compel, the standard of review is whether the order was an abuse of discretion on the part of the court.  See e.g. United States v. LaRouche Campaign, 841 F.2d 1176, 1178 (1st Cir. 1988).  See also In Grand Jury Investigation, 545 F.3d 21, 24 (1st Cir. 2008).

    In Bruno & Stillman, the First Circuit stated, “While obviously the discretion of the trial judge has wide scope, it is a discretion informed by an awareness of First Amendment values and the precedential effect which [a] decision in any one case would be likely to have.  Given the sensitivity of inquiry in this delicate area, detailed findings of fact and [an] explanation of the decision would be appropriate.” Bruno & Stillman v. Globe Newspaper Co., 633 F.2d 583, 598 (1st Cir. 1980).

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  • 2nd Circuit

    The Second Circuit reviews the district court's decision whether or not to quash a subpoena for abuse of discretion. See Logan v. Bennington College Corp., 72 F.3d 1017, 1027 (2d Cir. 1995) (civil subpoenas); United States v. Caming, 968 F.2d 232, 238 (2d Cir. 1992) (criminal subpoenas); United States v. Sanders, 211 F.3d 711 (2d Cir. 2000) ("We review a district court decision to quash, or not quash, a grand jury subpoena, solely for abuse of discretion, with much deference being owed to the lower court's authority.") (quoting In re Grand Jury Matters, 751 F.2d 13, 16 (2d Cir. 1984)).

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  • 3rd Circuit

    In Smith v. Borough of Dunmore, 516 F. App’x at 197, the Third Circuit utilized de novo review as to the District Court’s decision regarding the reporter’s privilege.  Furthermore, in Cuthbertson II, 651 F.2d at 192-93, the Third Circuit indicated that, on appeals concerning application of the reporter's privilege, it would undertake "plenary" review of questions of law, apply an "abuse of discretion" standard to questions involving the lower court's exercise of discretion, and apply the "clearly erroneous" test to the lower court's findings of fact.

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  • 4th Circuit

    The Fourth Circuit reviews both denials of motions to compel discovery and civil contempt orders under an abuse-of-discretion standard. Ashcraft v. Conoco, Inc., 218 F.3d 288 (4th Cir. 2000) (companion to Ashcraft case discussed elsewhere); Church of Scientology, 992 F.2d at 1335 (reviewing motion to compel discovery); LaRouche, 780 F.2d at 1139 (same). The standard is not heightened by the constitutional implications of these cases, nor is de novo review required.

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  • 5th Circuit

    The Fifth Circuit will review a district court's order finding a recalcitrant witness in contempt under 28 U.S.C § 1826 as well as its decision on a motion to quash for abuse of discretion. In re Grand Jury Subpoena for Attorney Representing Criminal Defendant Reyes-Reguena, 926 F.2d 1423, 1431 n.6 (5th Cir. 1991) (section 1826 contempt order); In re Grand Jury Proceedings, 115 F.3d 1240, 1243 (5th Cir. 1997) (order denying motion to quash).

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  • 6th Circuit

    Because the predominant issue in reporter's privilege situations will be pure issues of constitutional law, or issues of whether the subpoenaing party has adduced sufficient evidence to satisfy constitutional requirements, the Sixth Circuit is unlikely to defer at all to a district court's order that a journalist disclose a confidential source or other unpublished work product. The Sixth Circuit is likely to review such orders de novo (without deference). However, the Sixth Circuit has not explicitly addressed its standard for review in that context.

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  • 7th Circuit

    The court of appeals reviews the trial court's decision to quash a subpoena under an abuse of discretion standard. Ott v. City of Milwaukee, 682 F.3d 552 (7th Cir. 2012).

    See also United States v. Lloyd, 71 F.3d 1256, 1262, 1269 (7th Cir. 1995); Deitchman v. E.R. Squibb & Sons, 740 F.2d 556, 565 (7th Cir. 1984) (appellate court will reverse trial court's ruling quashing a subpoena only upon an abuse of discretion by the trial court).

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  • 8th Circuit

    The applicable standard of review is abuse of discretion.

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  • 9th Circuit

    The Ninth Circuit applies de novo review when considering a district court’s conclusions regarding the interpretation and application of federal law. Rutter 7:253. Since reporter’s privilege cases center around the First Amendment, appellate courts review these cases de novo. In conducting a de novo review, the Ninth Circuit does not defer to the lower court’s ruling, but rather independently considers the matter anew as if no decision had been rendered on the matter below. Rutter 7:225.

    The Ninth Circuit applies abuse of discretion review to a district court's denial of a motion to quash a grand jury subpoena as well as to a district court's imposition of contempt sanctions. In re Grand Jury Subpoena (Glassdoor Inc. v. USA), 875 F.3d 1179, 1183 (9th Cir. 2017). “‘[M]ixed questions of law and fact contained within the analysis of a civil contempt proceeding’ are reviewed de novo. The district court's ‘underlying factual findings are reviewed for clear error.’” Id. (citing In re M.H., 648 F.3d 1067, 1070–71 (9th Cir. 2011) and Mathews v. Chevron Corp., 362 F.3d 1172, 1180 (9th Cir. 2004)).

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  • Alabama

    Alabama courts view writs of mandamus as extraordinary remedies that will be granted only when there has been an abuse of discretion by the lower court. Ex parte Wisconsin Physicians Service Ins. Corp., 800 So.2d 588 (Ala. 2001). For example, in Ex parte Fitch, 715 So.2d 873 (Ala. Crim. App. 1997), the court held that the trial court erred by not quashing subpoenas duces tecum issued by a district attorney to defendants in a criminal case. Because the district attorney did not have the authority to issue the subpoenas duces tecum to the defendants, the appellate court held that the trial court erred by not quashing the subpoenas. Id.

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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 standards for reviewing trial court rulings concerning the privilege. As a general rule, however, the court will review de novo trial court rulings concerning what the law is, including rulings concerning the existence or scope of a privilege.

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  • Arizona

    The application of a privilege is a question of law, subject to de novo review. See, e.g., Blazek, 177 Ariz. at 536, 869 P.2d at 510; Reinstein, 240 Ariz. at 446, 381 P.3d at 240.

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  • Arkansas

    Typically, an appellate court will not reverse a lower court's finding of fact unless that finding was clearly erroneous. The Court reviews a lower court's ruling of law de novo.

    Issues of statutory construction are reviewed by the Arkansas Supreme Court de novo, as it is the court's function to interpret statutes. Ghegan & Ghegan, Inc. v. Barclay, 345 Ark. 514, 49 S.W.3d 652 (2001). While the court is not bound by a lower court's ruling on a statute's meaning, in the absence of a showing that the trial court erred, the lower court's interpretation will be accepted as correct on appeal. Mayberry v. Flowers, 2002 WL 122746 (Jan. 31, 2002).

    Where a party is punished for civil contempt, the appellate court will not reverse unless the trial court's order is arbitrary or against the weight of the evidence. Hart v. McChristian, 344 Ark. 656, 42 S.W.3d 552 (2001). However, where a person is held in contempt for failure or refusal to abide by a judge's order, a reviewing court is not obliged to look behind the order to determine whether it is valid. Johnson v. Johnson, 343 Ark. 186, 33 S.W.3d 492 (2000). In the case of criminal contempt, the standard of review requires the appellate court to view the record in the light most favorable to the trial judge's decision and to sustain that decision if it is supported by substantial evidence and reasonable inferences. Etoch v. Simes, 340 Ark. 449, 10 S.W.3d 866 (2000).

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  • California

    The standard of review of a contempt order is not clear. One California court held that the standard of review is “whether there is substantial evidence to sustain the order.” In re Willon, 47 Cal. App. 4th 1080, 1089, 55 Cal. Rptr. 2d 245 (1996) (citations omitted). That court explained that the contempt order will be sustained only if the record “demonstrate[s] on its face the existence of all the necessary facts upon which jurisdiction depended.” Id. However, the California Supreme Court declined to decide whether the appellate court is required to exercise its independent judgment in reviewing an order of contempt because of the constitutional interests at stake. See Delaney v. Superior Court, 50 Cal. 3d 785, 816, 789 P.2d 934, 268 Cal. Rptr. 753 (1990). It did note, however, that “Article I, section 2(b) makes no provision for such a standard of review” and that no authority had been cited to support such a review. Id.; see also People v. Vasco, 131 Cal. App. 4th 137, 152, 31 Cal. Rptr. 3d 643 (2005) (also declining to adopt a standard of review for shield law cases).

    In reviewing an order denying a protective order, one California court held that controversies that turn on questions of statutory interpretation are subject to independent review, and that when the controversy “implicates interests in freedom of expression” the court must “review all subsidiary issues, including factual ones, independently in light of the whole record.” O’Grady v. Superior Court, 139 Cal. App. 4th 1423, 1456, 44 Cal. Rptr. 3d 72 (2006) (emphasis in original). That court exercised the equivalent of de novo review because the case was decided on “a paper record fully duplicated” in the Court of Appeal (as opposed to “controverted live testimony,” which would warrant deference). Id.

    The O’Grady court enunciated a different standard for evaluating application of a reporter’s privilege under the free press guarantees of the First Amendment or the California Constitution – “the relatively searching . . . constitutional fact review.” O’Grady, 139 Cal. App. 4th at 1466-67 (internal quotes omitted). This requires the court to independently review any factual findings. Thus:

    Facts that are germane to the First Amendment analysis must be sorted out and reviewed de novo, independently of any previous determinations by the trier of fact . . . . And the reviewing court must examine for itself the statements in issue and the circumstances under which they were made to see . . . whether they are of a character which the principles of the First Amendment . . . protect. We must therefore make an independent examination of the entire record . . . and determine whether the evidence in the record supports the factual findings necessary to sustain the trial court’s order denying a protective order.

    Id. (internal quotes, citations omitted). It would appear that under this standard, even factual findings derived from live testimony would be reviewed de novo to the extent they impact on constitutional free press rights.

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  • Colorado

    In general, discovery rulings are reviewed under an abuse of discretion standard. See, generally, J.P. v. District Court, 873 P.2d 745 (Colo. 1994); Sheid v. Hewlett Packard, 826 P.2d 396 (Colo. App. 1991) (abuse of discretion standard used to determine validity of sanction award by district court under Rule 37).

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  • Connecticut

    There is no case law on this subject. Generally speaking, the standard of review on appeal is as stated below:

    An appellate court’s review of a trial court decision is circumscribed by the appropriate standard of review. As we have often stated: “The scope of our appellate review depends upon the proper characterization of the rulings made by the trial court. To the extent that the trial court has made findings of fact, our review is limited to deciding whether such findings were clearly erroneous. When, however, the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record.”

    Torres v. Waterbury, 249 Conn. 110, 119 (1999) (quoting SLI International Corp. v. Crystal, 236 Conn. 156, 163 (1996)).

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  • D.C. Circuit

    A district court’s decision to quash or modify a subpoena will not be reversed on appeal absent an abuse of discretion.  E.g., Zerilli v. Smith, 656 F.2d 705, 710 (D.C. Cir. 1981).  The D.C. Circuit accordingly will “review legal rulings of the trial court de novo but will defer to the sound discretion of the trial court where the balancing of relevant factors is involved.”  Lee v. Dep’t of Defense, 413 F.3d 53, 59 (D.C. Cir. 2005).

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  • Delaware

    It is unclear whether the determination of whether the privilege applies is a finding of fact or law. As such, the standard of review upon appeal is also unclear.

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  • District of Columbia

    A trial court has broad discretion in determining whether to grant or deny a motion to compel discovery, and its decision will not be disturbed on appeal unless there has been an abuse of discretion resulting in prejudice.  Haynes v. District of Columbia, 503 A.2d 1219, 1224 (D.C. 1986); White v. WMATA, 432 A.2d 726, 728-729 (D.C. 1981).

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  • Florida

    Discretionary review by certiorari is available to correct a trial court’s order that constitutes a “departure from the essential requirements of law, resulting in ‘cat out of the bag’ irreparable harm.” WTVJ-NBC 6 v. Shehadeh, 56 So. 3d 104, 106 (Fla. 3d DCA 2011) (certiorari granted; order granting motion to compel quashed). See also CNN v. Black, 308 So. 3d 997, 1000 (Fla. 4th DCA 2020).

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  • Georgia

    With respect to the legal application of the privilege, the standard of review is de novo.

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  • Hawaii

    The order of a court quashing or enforcing a subpoena will be disturbed on appeal only if plainly arbitrary and without support in the record. Powers v. Shaw, 1 Haw. App. 374, 619 P.2d 1098 (1980).

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  • Idaho

    In almost all instances, the appeal court will review the decision to use the contempt power as a review of a matter of law, in which the appeal court exercises complete review. However, because the issuance of a contempt order is considered in Idaho to be within the inherent power of the court to enforce its general orders, the particulars of such orders, such as the amount of a fine or the nature of imprisonment, are reviewed under an abuse of discretion.

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  • Illinois

    The Illinois Supreme Court held that the Court will only “disturb the lower court’s findings under the statute only if they are against the manifest weight of the evidence.” People v. Pawlaczyk, 189 Ill. 2d 177, 188, 724 N.E.2d 901, 908 (2000).  Illinois federal courts have reviewed the propriety of quashing a subpoena under the abuse of discretion standard. United States v. Lloyd, 71 F.3d 1256, 1268 (7th Cir. 1995); United States v. McCollom, 815 F.2d 1087, 1089 (7th Cir. 1987). This is because the courts afford the trial judge “great deference” on appeal with respect to evidentiary rulings because of his “first-hand exposure to the witnesses and evidence as a whole, and because of his familiarity with the case and ability to gauge the likely impact of the evidence in the context of the entire proceeding.” United States v. Torres, 977 F.2d 321, 329 (7th Cir. 1992).

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  • Indiana

    In In re Stearns, the court, in reviewing an interlocutory appeal of a motion to quash a subpoena to a news organization, said: “When reviewing a general judgment this Court will presume the judgment to be based upon findings which are supported by the evidence and we must affirm if the decision of the trial court can be sustained on any legal ground.” In re Stearns (Vollmer v. Zulka), 489 N.E.2d 146, 149 (Ind. Ct. App. 1986).

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  • Iowa

    Review is de novo. The weighing of conflicting interests involved in a reporter's privilege case is a matter of law, not fact, and lower courts findings are not binding on the appellate court. Lamberto, 326 N.W.2d at 309.

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  • Kansas

    Contempt convictions are generally reviewed pursuant to an abuse of discretion standard. State v. William, 20 Kan. App.2d 185, 884 P.2d 755 (1994). As a practical matter, the review focuses on whether the records show conduct constituting contempt.

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  • Kentucky

    Issues with regard to a lower court's treatment of a subpoena are generally reviewed for abuse of discretion. A lower court's decision to uphold or quash a subpoena should not be disturbed unless it is arbitrary. International Union of Operating Eng'rs v. Bryan, 255 S.W.2d 471 (Ky. 1953). The abuse of discretion standard is applied whether or not the litigant presents questions affecting constitutional rights. See McLaughlin v. Service Employees Union, AFL-CIO, Local 280, 880 F.2d 170 (9th Cir. 1989).

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  • Louisiana

    The United States Fifth Circuit has upheld a district court's finding that alternative means had been exhausted because it was "not clearly erroneous." Miller, 621 F. 2d at 725. In Louisiana, the shield law does not address the standard of appellate review. Presumably, findings of fact are subject to a clearly erroneous standard and conclusions of law are subject to a de novo standard.

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  • Maine

    The Maine Supreme Court will consider issues of law "de novo." The Court has not considered the standard of review for mixed questions of law and fact in First Amendment cases, but would likely follow First Circuit precedent that mixed fact/law questions are also considered de novoSee, e.g., Ridley v. Mass. Bay Transp. Auth., 390 F.3d 65, 75 (1st Cir. 2004) ("We engage in de novo review of ultimate conclusions of law and mixed questions of law and fact in First Amendment cases."). In ordinary cases, the trial court's findings of fact will not be overturned unless clearly erroneous.

    Where the facts are undisputed, the Maine Supreme Court “independently review[s] on appeal” an order compelling disclosure of non-confidential information from a reporter.  In re Letellier, 578 A.2d 722, 727 n.8 (Me. 1990).

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  • Maryland

    Maryland applies a normal standard of review by deferring to the fact finder for questions of fact and reviewing appeals for errors of law.

    When the issue is whether a constitutional right has been infringed, Maryland courts make their own independent constitutional appraisal. Crosby v. State, 784 A.2d 1102, 1106 (Md. 2001). See also Stokes v. State, 765 A.2d 612, 615 (Md. 2001) (quoting Jones v. State, 682 A.2d 248, 253 (Md. 1996).

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  • Massachusetts

    The abuse of discretion standard of review was applied in Wojcik v. Boston Herald, 803 N.E.2d 1261, 1264 (Mass. Ct. App. 2004); Sinnott v. Boston Retirement Bd., 524 N.E.2d 100 (Mass. 1988); and In re Roche, 411 N.E.2d 466 (Mass. 1980).

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  • Michigan

    Generally, the standard for review by a Michigan appellate court is abuse of discretion by the trial court. See Maldonado v. Ford Motor Co., 476 Mich. 372, 388, 719 N.W.2d 809 (2006) (adopting the abuse of discretion standard as the default standard). Since Michigan courts have not recognized a constitutional privilege for reporters, the appeal of a decision to quash a subpoena is nothing more than an interlocutory appeal from the trial court, subject to reversal only if it constitutes an abuse of discretion. Marketos, 185 Mich. App. at 181.

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  • Minnesota

    The standard of review is de novo. Weinberger v. Maplewood Rev., 668 N.W.2d 667, 672 ñ.73 (Minn. 2003).

    However, in Steele v. Tell, No. C2-94-981, 1994 Minn. App. LEXIS 1079, *8ñ9 (Minn. App. Nov. 1, 1994) (unpublished), the court of appeals affirmed a district court's denial of a motion to compel disclosure of confidential sources, stating that the district court had not abused its discretion.

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  • Mississippi

    When the issues presented on an interlocutory appeal are questions of law, the Mississippi appellate court will review those issues, as all other questions of law, de novo. Stewart ex rel. Womack v. City of Jackson, 804 So. 2d 1041, 1046 (Miss. 2002); Gant v. Maness, 786 So. 2d 401, 403 (Miss. 2001). All other matters will be reviewed under an abuse of discretion of standard; the trial judge's ruling will not be disturbed on appeal unless it clearly appears that there has been an abuse of discretion or that the discretion has not been justly and properly exercised under the circumstances. Stubbs v. Miss. Farm Bureau Cas. Ins. Co., 2002 WL 1340956, at *3 (Miss. June 20, 2002); McCain Bldrs., Inc. v. Rescue Rooter, LLC, 797 So. 2d 952, 954 (Miss. 2001); Beech v. Leaf River Forest Prods., Inc., 691 So. 2d 446, 448 (Miss. 1997).

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  • Missouri

    Missouri appellate courts will not issue a writ in such matters unless the damage to the party against whom discovery is sought is both severe and irreparable if the privileged material is produced and this damage cannot be repaired on appeal.

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  • Montana

    Appellate courts give great deference to findings of fact, only overturning them if they are not supported by substantial evidence. Concerning legal conclusions the standard of review is de novo.

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  • Nebraska

    In practical terms. both appeals and mandamus actions are reviewed for abuse of discretion. While the language the court uses in mandamus cases sounds like a more deferential review, it amounts to abuse of discretion review as applied by the Supreme Court. See State ex rel. Acme Rug Cleaner, Inc., supra.

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  • Nevada

    Questions of statutory interpretation are subject to the Nevada Supreme Court's independent review. Aspen Fin. Servs., Inc. v. Eighth Judicial Dist. Court, 129 Nev. 878, 313 P.3d 875, 878 (2013); Diaz v. Eighth Judicial Dist. Court, 116 Nev. 88, 993 P.2d 50, 54 (2000).

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  • New Hampshire

    Although there is no statutory provision or case law specifically setting forth the standard of review, in State v. Siel, 122 N.H. 254 (1982), a criminal case involving a defendant seeking to overcome a press privilege to withhold a confidential source, the New Hampshire Supreme Court utilized a deferential standard in reviewing the findings of the trial court. In upholding the order of the trial court judge (Souter, J.), the Supreme Court ruled that, in regard to the third prong of the Siel test, "[w]e cannot say that no reasonable person could find as did the trial judge." State v. Siel, 122 N.H. at 260. Decisions vested within the discretion of the trial court are reviewed by the Supreme Court using the "unsustainable exercise of discretion" standard where the appellant has the burden of demonstrating that the trial court's ruling was "clearly untenable or unreasonable to the prejudice of [the] case." State v. Lambert, 147 N.H. 295, 296 (2001). In contrast, questions of law are reviewed by the Supreme Court de novo. State v. Paulson, 143 N.H. 447, 449 (1999).

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  • New Jersey

    The standard of review will depend upon the nature of the appeal. The appellate court will review the entire record in the exercise of its original jurisdiction under the Rules of Court. R. 2:10-5.

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  • New Mexico

    The 1973 legislature considered the reporter’s privilege so important that it undertook to require the supreme court to hear appeals from disclosure orders “de novo.” NMSA 1978, § 38-6-7(C) (1973). But in Ammerman v. Hubbard Broadcasting, Inc., 89 N.M. 307, 551 P.2d 1354 (1976), the supreme court rejected that provision as an unconstitutional legislative encroachment on judicial prerogative. The court held that appeals from disclosure orders would be treated no differently from other cases:

    "The fact-finding process has always been left to the district courts. That is, factual issues are determined either by the trial jury or the trial court sitting without a jury. The weight and credibility of the evidence and of witnesses are left for the trier of the facts and are not subjects of review by this court.

    Our review of the evidence is only for the purpose of determining whether there was substantial evidence to support the trier of the facts."

    Id. at 313, 551 P.2d at 1360 (citations omitted).

    In other contexts, the New Mexico appellate courts have stated that they “review discovery orders for abuses of discretion.” Pub. Serv. Co. v. Lyons, 2000-NMCA-077, ¶ 10, 129 N.M. 487, 10 P.3d 166. But to the extent that an appeal concerns a “trial court's construction of law regarding privileges ..., it presents a legal question that [the court] review[s] de novo.” Id.

    Appeals from the magistrate court to the district court – at least appeals from “final judgments and decisions” – are de novo in all respects. NMSA 1978, § 35-13-2(A) (1996).

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  • New York

    The standard of review on appeal of a motion to quash a subpoena or for a protective order is abuse of discretion. See In re Beach v. Shanley, 62 N.Y.2d 241, 476 N.Y.S.2d 765 (1984). The appellate division courts may review questions of law and of fact on appeal from a judgment or order of a court of original jurisdiction, and they may affirm, reverse and vacate a lower court's order. See CPLR § 5501(c). New York’s highest court, the Court of Appeals, however, "shall review questions of law only," except where the appellate division court has found new facts and a final judgment is entered based on those facts. CPLR § 5501(b).

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  • North Carolina

    The North Carolina shield law does not address the standard of review on appeal, and no reported appellate decision has addressed the appropriate standard of review in a reporter's privilege case.

    However, the shield law does contain specific requirements that must be met by the trial court in compelling production or testimony. Specifically, (i) the party requesting disclosure must establish by the greater weight of evidence that the statutory factors overcoming the reporter's privilege are met; (ii) any order compelling testimony or production can be issued only after notice to the journalist and a hearing; and (iii) any order compelling testimony must include clear and specific findings as to the showing made by the person seeking the testimony or production. N.C. Gen. Stat. § 8-53.11(c). Presumably an appellate court would conduct a clearly erroneous review as to whether these statutory requirements had been met.

    In general, motions to quash are "addressed to the sound discretion of the court in which the action is pending." Vaughan v. Broadfoot, 267 N.C. 691, 697, 149 S.E.2d 37, 42 (N.C. 1966). Therefore, an appeal from the denial of a motion to quash will be reviewed under an abuse of discretion standard.

    The standard of review for contempt proceedings is limited to determining whether there is competent evidence to support the findings of fact and whether the findings support the conclusions of law. Sharpe v. Nobles, 127 N.C. App. 705, 493 S.E.2d 288 (N.C. App. 1997); Koufman v. Koufman, 97 N.C. App. 227, 230, 388 S.E.2d 207, 209 (N.C. App. 1990), rev'd on other grounds, 330 N.C. 93, 408 S.E.2d 729 (N.C. 1991).

    The North Carolina appellate courts have not addressed whether or not the constitutional basis of the reporter's privilege affects the standard of review on appeal.

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  • North Dakota

    The standard of review applied by the North Dakota Supreme Court on a supervisory writ is abuse of discretion. The fact that the reporter is addressing a constitutional right does not affect the standard of review.

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  • Ohio

    The standard for review is the abuse of discretion standard. Petro v. North Coast Villas Ltd., 136 Ohio App.3d 96, 97, 735 N.E.2d 985 (2000) (but noting that “when a trial court’s discretionary decision is based on a specific construction of law,” the appellate court’s review is de novo); Future Communications, Inc. v. Hightower, Franklin App. No. 01AP-1175, 2002-Ohio-2245, ¶14 (10th Dist.); Bonewitz v. Red Ferris Chevrolet, Inc., 9th Dist. Wayne No. 01CA0006, 2001 WL 1094537 (Sept. 19, 2001); BFG Employees Credit Union, Inc. v. Kopco & Co., 9th Dist. Lorain No. 01CA007929, 2002 WL 987545 (May 8, 2002).

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  • Oklahoma

    The legal test for extraordinary relief in Oklahoma is whether the petitioner has a clear legal right that is being affected by the respondent's exercise of excessive judicial or administrative force (a writ of prohibition) or his failure to exercise proper judicial or administrative force (a writ of mandamus), and the inadequacy of other relief (such as an appeal).

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  • Oregon

    No statutory or case law addressing this issue.

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  • Pennsylvania

    Where First Amendment issues are at issue, Pennsylvania appellate courts will make an independent examination of the whole record. See, e.g.Brown v. Philadelphia Tribune Co., 668 A.2d 159, 162-63 (Pa. Super. 1995) (quoting Bose v. Consumer Union of the United States, Inc., 466 U.S. 485, 499 (1984)). An appellate court is not bound by the trial court’s conclusions of law and is free to modify erroneous applications of law by the trial court or courts below. Castellani v. Scranton Times, L.P., 956 A.2d 937, 943 (Pa. 2008); Commonwealth v. Bowden, 838 A.2d 740 (Pa. 2003).

    In Castellani, the Pennsylvania Supreme Court reaffirmed that the Shield Law “protects a newspaper’s source of information from compelled disclosure.” 956 A.2d at 939. The court affirmed the Superior Court’s decision overruling the trial court order directing the newspaper to disclose the challenged information, conducting a de novo review, and holding that the Shield Law did not contain a crime-fraud exception.

    On appeal from a finding of contempt, the appellate court may reverse a contempt sanction upon finding that the trial court abused its discretion or committed an error of law. Bowden, 838 A.2d at 761-62; Stambaugh v. Reed Twp., 510 A.2d 1289, 1290-91 (Pa. Commw. 1986). “Discretion is abused when the course pursued represents not merely an error of judgment, but where the judgment is manifestly unreasonable or where the law is not applied or where the record shows that the action is a result of partiality, prejudice, bias or ill will.” Bowden, 838 A.2d at 762.

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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

    The standard for review will be abuse of discretion. If the limited circumstances under which the South Carolina Supreme Court will recognize a First Amendment privilege exist, the argument can be made that review should be de novo.

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  • South Dakota

    There is no case law to suggest anything other than normal deference being given to lower court's findings.

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  • Tennessee

    The shield law provides: "The court of appeals shall make an independent determination of the applicability of the standards . . . to the facts in the record and shall not accord a presumption of correctness to the trial court's findings." Tenn. Code Ann. § 24-1-208(c)(3)(A).

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  • Texas

    A party seeking mandamus relief must show that the trial court either failed to perform a clear legal duty or committed a clear abuse of discretion, that the person has no adequate legal remedies, and that the petition raises important issues for the state's jurisprudence. Tilton v. Marshall, 925 S.W.2d 672, 682 (Tex. 1996); see also In re Team Rocket, L.P., 256 S.W.3d 257 (Tex. 2008). The standard of review is “clear abuse of discretion.” Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992). Because this is a high standard, the appellate court must give the trial court’s determination of factual issues wide latitude, but it is not required to be so deferential to legal determinations made by the trial court. Thus, the subpoenaed party should argue that the trial court's denial of the motion to quash was a “clear abuse of discretion.”

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  • Utah

    There is no statutory or case law addressing this issue with respect to the reporter's privilege.

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  • Vermont

    The Vermont Supreme Court has not articulated a special standard of review for media cases. Accordingly, the general standard of appellate review will apply. Issues of law are reviewed de novoState v. Stern, 2018 VT 36, ¶ 5, 186 A.3d 1099, 1102 (Vt. 2018).  In a non-jury case, findings of fact will be overturned only if “clearly erroneous.” Kneebinding, Inc. v. Howell, 2018 VT 101, ¶ 26 (Vt. 2018).  A court’s exercise of discretion will be set aside only if it rises to the level of an “abuse of discretion.”  Id.

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  • Virginia

    The general standard of review is that the judgment of a trial court will not be set aside unless it appears from the evidence that the judgment is either plainly wrong or that there is no evidence to support it. Virginia Code §8.01-680.

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  • Washington

    Washington's case law has not yet squarely addressed this issue.

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  • West Virginia

    All questions or interpretations of law are subject to a de novo standard of review. Findings of fact made by a jury or a judge sitting as the finder of fact at trial, are reviewed under a "clearly erroneous" standard. However, factual findings made by a lower court (if any) in matters concerning the assertion of a reporters' privilege typically are derived from affidavits or pleadings, and a de novo standard would apply to any such findings made by the lower court.

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  • Wisconsin

    A trial court's decision whether to quash a subpoena is discretionary. See Kurzynski, 538 N.W.2d at 560. Its "discretionary determination will be upheld on appeal if it is 'consistent with the facts of record and established legal principles.'" Id. (citing Lievrouw v. Roth, 495 N.W.2d 850, 859-60 (Wis. Ct. App. 1990)).

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  • Wyoming

    In Wyoming, discovery rulings of the trial court are reviewed under an abuse of discretion standard. However, in cases involving the subpoena of a reporter as a third party, an argument could be made that ruling on whether privilege exists is a matter of law and should be reviewed de novo, and that the district court should be given no deference as a fundamental right -- freedom of the press -- is at issue. Again, there are no cases on point in Wyoming.

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