8. Other elements

The Southern District of Florida has interpreted the second Caporale prong (that the information must be necessary to the proper presentation of the case) to mean that the party seeking to overcome the privilege must have a compelling reason for seeking the information.  Gregory v. Miami-Dade County, 2015 WL 3442008, *8 (S.D. Fla. 2015).

The First Circuit has not listed any other specific elements which a party must overcome in order to be protected under the reporter’s privilege. Rather than requiring a party to meet specific elements, the First Circuit courts perform a general balancing test, which examines all of the surrounding factors and circumstances that indicate either the moving party’s need for the information or the reporter’s need to keep the information confidential.

The Second Circuit has not discussed other elements that are considered in deciding whether to enforce a subpoena besides the elements discussed above.

Courts in the Third Circuit do not appear to have addressed other elements.

Where a media entity has been accused of allegedly tortious behavior such as fraud, one court has added a prong to the LaRouche test, requiring the judge to be “confident that the party asserting the privilege does not do so as a means of justifying otherwise illegal conduct.” Food Lion Inc. v. Capital Cities/ABC, Inc., 951 F. Supp. 1211, 1215, 25 Media L. Rep. 1182 (M.D.N.C. 1996).

No reported decision of the Fifth Circuit addresses any other elements that must be met before the qualified reporter's privilege can be overcome.

The federal courts in the Sixth Circuit have identified no additional elements related to First Amendment protection of the press from subpoenas.

There is no statutory or case law addressing this issue.

No Eighth circuit case law addresses other elements in the context of the reporter's privilege.

The Ninth Circuit does not require that any other elements be met in order to overcome a valid assertion of the reporter’s privilege. See Shoen II, 48 F.3d at 416 (reversing a contempt citation against a defendant who refused to produce materials pursuant to a discovery request in the underlying defamation lawsuit; the court held that a party trying to overcome the reporter’s privilege must show that the material is: (1) unavailable despite exhaustion of all reasonable sources; (2) non-cumulative; and (3) clearly relevant to an important issue in the case). Some district courts, however, have applied a slightly different test when deciding whether the privilege can be overcome. This test requires: (1) that the information is of certain relevance; (2) that there is a compelling reason for the disclosure; (3) that other means of obtaining information have been exhausted; and (4) that the information sought goes to the heart of the seeker’s case. See L.A. Mem’l Coliseum Comm’n v. NFL, 89 F.R.D. 489, 494 (C.D. Cal. 1981); see also In re Christian Life Ctr. v. U.S. Bankr. Court, 23 B.R. 770, 771 (B.A.P. 9th Cir. 1982) (reversing and remanding the case to the trial court with instructions to vacate the contempt citation against the plaintiff because the defendant had not satisfied the standards set forth in Los Angeles Memorial Coliseum Commission); Arellano v. Haskins, No. 17-CV-01235, 2019 WL 5693507, at *2 (E.D. Cal. Nov. 4, 2019) (citing the same four-factor test and finding the plaintiff failed to overcome the reporter’s privilege on relevance grounds).

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, and in doing so have not listed any other elements that must be met before the privilege can be overcome.

Under Matera, if the subpoenaed party raises the Arizona Shield Law in opposition to a subpoena, it bears the burden of demonstrating that the subpoena would require the disclosure of a confidential source of information. 170 Ariz. at 450, 825 P.2d at 975; see also Reinstein, 240 Ariz. at 448, 381 P.3d at 242 (finding that the Media Shield Law applies only to confidential sources, not information). However, no statutory or case law specifically addresses how a party would, or could, meet that burden.

The Arkansas Supreme Court has not enunciated any other elements that must be met before the privilege can be overcome.

In criminal cases, in addition to the factors discussed above, the trial court should consider “[w]hether the unpublished information is confidential or sensitive.” Delaney v. Superior Court, 50 Cal. 3d 785, 810, 789 P.2d 934, 268 Cal. Rptr. 753 (1990). The court stated that,Generally, nonconfidential or nonsensitive information will be less worthy of protection than confidential or sensitive information. Disclosure of the latter types of information will more likely have a significant effect on the newsperson’s future ability to gather news . . . . The protection of that ability is the primary purpose of the shield law. Id.

In criminal cases, the courts also should consider “[t]he interests sought to be protected by the shield law,” i.e., “whether the policy of the shield law will in fact be thwarted by disclosure.” Delaney, 50 Cal. 3d at 810. The court explained that if “the criminal defendant seeking disclosure is himself the source of the information, it cannot be seriously argued that the source (the defendant) will feel that his confidence has been breached.” Id.; see also People v. Vasco, 131 Cal. App. 4th 137, 152 n.3, 31 Cal. Rptr. 3d 643 (2005) (citing Delaney for this proposition but not reaching issue).

In civil cases, the courts should consider, in addition to the factors discussed above, “the nature of the litigation and whether the reporter is a party.” Mitchell v. Superior Court, 37 Cal. 3d 268, 279, 690 P.2d 625, 208 Cal. Rptr. 152 (1984). The California Supreme Court asserted that “[i]n general disclosure is appropriate in civil cases, especially when the reporter is a party to the litigation.” Id. However, the court clarified that whether disclosure should be ordered depends “upon the balancing of other relevant considerations.” Id.

The courts also should consider in civil cases “the importance of protecting confidentiality in the case at hand.” Id. at 282. As the California Supreme Court explained:

The investigation and revelation of hidden criminal or unethical conduct is one of the most important roles of the press in a free society – a role that may depend upon the ability of the press and the courts to protect sources who may justifiably fear exposure and possible retaliation. Thus, when the information relates to matters of great public importance, and when the risk of harm to the source is a substantial one, the court may refuse to require disclosure even though the plaintiff has no other way of obtaining essential information.

Id. at 283.

Finally, in civil cases, the courts “may require the plaintiff to make a prima facie showing that the alleged defamatory statements are false before requiring disclosure.” Id. This is necessary “because ‘to routinely grant motions seeking compulsory disclosure . . . without first inquiring into the substance of a libel allegation would utterly emasculate the fundamental principles” of New York Times Co. v. Superior Court, 51 Cal. 3d 453, 796 P.2d 811, 273 Cal. Rptr. 98 (1990), and similar cases. Id. The court clarified, however, that “[a] showing of falsity is not a prerequisite to discovery, but it may be essential to tip the balance in favor of discovery.” Id.

To overcome the qualified privilege established by the Shield Law, a party seeking information from a newsperson must establish by a preponderance of the evidence that the information is directly relevant to a substantial issue in the proceeding; there is no reasonable alternative for obtaining the information; and the interest in obtaining the information outweighs the newsperson's First Amendment interest in protecting the information. There are no other elements that must be proved.

Courts have listed no other elements.

Aside from whether the party seeking information can show that its private interest in disclosure outweighs the public’s interest in protecting the newsgathering process, the D.C. Circuit has not identified any other elements that must be established before the journalist’s privilege can be overcome.  Compare Lee v. Dep’t of Justice, 428 F.3d 299 (D.C. Cir. 2005) (Tatel & Garland, JJ., dissenting from denial of rehearing en banc) (arguing that courts should weigh a plaintiff’s “private interest” in the lawsuit against “the public’s interest in protecting journalists’ ability to report without reservation on sensitive issues”), and Grunseth v. Marriott Corp., 868 F. Supp. 333, 335-36 (D.D.C. 1994) (“Plaintiff has demonstrated no overwhelming or compelling societal interest in overcoming the presumption of favoring First Amendment protections for a reporter’s sources”), with Lee v. Dep’t of Justice, 401 F. Supp. 2d 123 (D.D.C. 2005) (characterizing the proposed public/private interest balancing test as “inherently unworkable”), and Hatfill v. Gonzales, 505 F. Supp. 2d 33 (D.D.C. 2007) (“without controlling precedent from the Circuit that the public interest balancing element is a necessary protection for reporters, the Court must decline to employ it”).

No additional elements have been required to overcome the privilege.

The elements set forth in the shield law are the only ones a person seeking disclosure can show to overcome the qualified privilege for unpublished information.  D.C. Code §§ 16-4702, 4703.

The test for overcoming the journalist’s privilege contains only the three-prongs articulated in Section 90.5015(2). That is, the information must be: (1) relevant and material to unresolved issues in the case; (2) unavailable from alternative sources; and (3) supported by a compelling interest requiring disclosure. Prior to the enactment of Section 90.5015, the Eleventh Circuit in United States v. Caporale, 806 F.2d 1487, 1503-04 (11th Cir. 1986), had set forth a three-prong standard for overcoming the federal common law reporter’s privilege. Caporale required that the information sought be (1) highly relevant, (2) necessary to the proper presentation of the case, and (3) unavailable from other sources. Id. Courts have interpreted the “compelling interest” and “necessary to the proper presentation of the case” prongs to be substantially the same, thus, there is no difference between the federal common law and Florida statutory standards. See McCarty v. Bankers Insurance Co., 195 F.R.D. 39 (N.D. Fla. 1998) (stating that “application of either the federal common law standard or the newly announced Florida standard will yield the same result, as the factors of each are virtually indistinguishable”).

None.

None.

Not applicable.

There are no additional elements to be met before the privilege can be overcome.

There are no other elements.

No other elements must be met before the privilege can be overcome.

K.S.A. 60-484 provides that a court “may” allow attorney fees to the prevailing party in a dispute involving application of the Kansas shield law if it is determined that “the party seeking to compel disclosure had no reasonable basis to request such disclosure,” or “that the party claiming the privilege had no reasonable basis to claim such privilege.”  The author is not aware of a case in which fees were awarded either way.

No other elements are required to be met before the privilege can be overcome.

The court shall order disclosure only of such portion of unpublished information sought as to which the three-part showing is made and "shall support such order with clear and specific findings made after a contradictory hearing." La. R.S. 45:1459.

The state court also considers the specificity and purpose of the information sought by the subpoena. In re Letellier, 578 A.2d 722, 728, 17 Media L. Rep. 2169 (1990) (holding in favor of allowing discovery because the district attorney’s request was “both limited and focused”).

The federal court in Maine has specified that a party serving a subpoena may not survive a motion to quash unless the party demonstrates “evidence of the elements of its claim other than that (or those) to which the discovery sought may apply before any such discovery may be sought from a reporter.” Levesque v. Doocy, 247 F.R.D. 55, 57–58 (D. Me. 2007).

Courts have not provided a definitive list of elements that must be met before the privilege can be overcome. Thus, any and all considerations may be included in the balancing test evaluated by courts faced with claims of privilege.

There are no other elements that are apparent.

There is no statutory or case law addressing this issue.

The court also is required, pursuant to the test in Classic III, to weigh the importance of protecting confidentiality to the source.  This case suggests there must be an evaluation if the claimed need for confidentiality is real or whether the reporter offers confidentiality to sources on a regular basis to prevent discovery in all cases.  See Classic III, 954 S.W.2d at 656.

If the statutory criteria are met, the privilege is absolute.

No reported cases.

There are no other substantive elements that must be met before the privilege can be overcome.

There are no cases, other than the cases discussed above, that enumerate additional elements that must be satisfied before the privilege can be overcome.

Co-defendants are permitted to join in seeking information from a newsperson but the co-defendant must meet the same burden as the defendant issuing the subpoena. Material provided to one defendant is not automatically provided to all defendants.

New Mexico courts have not formulated any additional elements of the exception to the reporter’s privilege.

There are no other elements that are considered.

The state courts have not listed any other elements that must be met before the privilege can be overcome.

There are no other elements to consider.

Taylor v. Miskovsky, the only Oklahoma case applying the statute, did not identify any elements beyond the language of the statute.

Pennsylvania courts have not expressly considered any other elements in determining whether the reporter’s privilege can be overcome.

The Rhode Island Shield Law provides that a party seeking to divest the privilege must show "that there is substantial evidence that disclosure of the information or of the source of the information is necessary to permit a criminal prosecution for the commission of a specific felony, or to prevent a threat to human life, and that the information or the source of the information is not available from other prospective witnesses." Rhode Island General Laws § 9-19.1-3.

There are no elements other than those identified in the statute that must be shown to overcome the privilege.

Although the Hopewell court included the fifth factor, falsity, it presumably pertains only in libel/slander cases in which the truth or falsity is a critical issue.

Courts have not listed other elements that must be met before the privilege can be overcome.

There are no other elements that must be met.

There is no statutory or case law addressing this issue.

The Vermont courts consider motions to quash on a case by case basis and have the discretion to consider any information relevant to their determination.

Rule 4:1(b)(6) of the Rules of the Supreme Court of Virginia states that when a party withholds information otherwise discoverable in a civil suit “by claiming that it is privileged or subject to protection as trial preparation material, the party shall make the claim expressly and shall describe the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection.”

There are no other elements. See Section II.A (Shield law statute) above.

No other elements.

Not applicable.