A. Burden, standard of proof
The standard for the motion to quash requires the court to balance several factors including: (1) the relevance of the evidence; (2) the necessity of the information sought; (3) whether the information is available from other sources; and, (4) the nature of the proceeding. See Silkwood v. Kerr-McGee Corp., 563 F.2d 433, 438 (10th Cir. 1977); see also Grandbouche v. Clancy, 825 F.2d 1463, 1466 (10th Cir. 1987).
In the Eleventh Circuit, information may only be compelled from a reporter claiming the privilege if the party requesting the information can show: (1) that it is highly relevant, (2) necessary to the proper presentation of the case, and (3) unavailable from other sources. United States v. Caporale, 806 F.2d 1487, 1504 (11th Cir. 1986) (applying privilege in criminal racketeering trial); Miller v. Transamerican Press, Inc., 621 F.2d 721, 726 (5th Cir. 1980), cert. denied, 450 U.S. 1041 (1981) (applying privilege in civil libel suit).
Overcoming the standard is a “heavy burden” and the standard must be met by clear and convincing evidence. United States v. Thompson, No. 20522–CIV–CR, 2015 WL 1608462 *1 (S.D. Fla. April 10, 2015) (citing McCarty v. Bankers Ins. Co., 195 F.R.D. 39, 47 (N.D. Fla. 1998)).
As the First Circuit stated in Bruno & Stillman v. Globe Newspaper Co., “Initially each party has a burden. The plaintiff must establish the relevance of the desired information and the defendant [reporter] has the burden of establishing [the] need for preserving confidentiality.” 633 F.2d 583, 597 (1st Cir. 1980). The court also must be satisfied that the claim is not frivolous or filed as a pretense for using discovery as a fishing expedition for information; therefore, the court may require the plaintiff to show that it can establish jury issues on the essential elements its underlying case. Id. at 597. See also In re Special Proceedings, 373 F.3d 37, 45 (D.R.I. 2003); Levesque v. Doocy, 247 F.R.D. 55, 57-58 (D. Me. Dec. 11, 2007). As long as the case does not appear frivolous and the desired information appears remotely relevant, the court will assess the extent to which there is a need for confidentiality. Id.; see also Alharbi v. TheBlaze, Inc. 199 F. Supp. 3d 334, 348 (2016).
Under New Hampshire’s qualified reporter’s privilege, once the applicant shows that he has exhausted all reasonable means of identifying the source, and the reporter still fails to reveal the source’s identity, it is presumed that the reporter did not have a source. Gray v. St. Martin’s Press, 221 F.3d 243, 253 (1st Cir. 2000).
Both confidential and non-confidential information are subject to a qualified privilege in the Second Circuit. A claim of privilege is easier to sustain when the material sought is confidential. When the information sought is confidential, "disclosure may be ordered only upon a clear and specific showing that the information is: highly material and relevant, necessary or critical to the maintenance of the claim, and not obtainable from other available sources." United States v. Burke, 700 F.2d 70, 76-77 (2d Cir. 1983). To compel disclosure of non-confidential information, litigants must demonstrate that the information is "of likely relevance to a significant issue in the case, and [is] not reasonably obtainable from other available sources." Gonzales v. National Broadcasting Co., 194 F.3d 29, 36 (2d Cir. 1998).
The person or entity asserting the privilege has the initial burden of demonstrating that they are entitled to claim its protection. The Third Circuit has held that those seeking to invoke the First Amendment-based journalist's privilege have the burden of demonstrating that they are "engaged in investigative reporting, gathering news, and have the intent at the beginning of the news-gathering process to disseminate this information to the public." In re Madden, 151 F.3d at 130. As the Third Circuit further observed, "'it makes no difference whether the intended manner of dissemination was by newspaper, magazine, book, public or private broadcast or handbill because the press, in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion.'" Id. at 129 (citation omitted).
Once the person invoking the privilege has demonstrated that he or she is entitled to its protection, the burden shifts to the party seeking information from the reporter to show that they are entitled to overcome the privilege. The Third Circuit employs a three-part balancing test to determine whether a person seeking disclosure from a journalist has overcome the privilege: Such a person must make specific showings that the information sought is material, relevant and necessary to the party's claims or defenses. See, e.g., Riley, 612 F.2d at 716. Specifically, the party seeking disclosure must show there is no other practical way of accessing the information, all other potential sources have been exhausted, and the information is crucial to the party’s claims or defenses. See, e.g., id. at 716-17. Ultimately, whether these elements have been sufficiently shown will depend upon a balancing test in which the courts weigh the relative interests of the reporter with the interests of the party seeking disclosure. See, e.g., id. Thus, for example, a criminal defendant whose constitutional right to a fair trial is implicated by a request for disclosure likely will not need to make as great a showing to overcome the privilege as would a civil litigant whose constitutional rights were not implicated. While the courts generally have not defined in traditional terms the burden of proof that the proponent of a subpoena must meet, the Third Circuit has required a "strong showing" based on specific facts. Id.
The Fourth Circuit has held that the reporter’s privilege will be overcome “whenever society’s need for the information in question outweighs the intrusion on the reporter’s First Amendment interests.” Ashcraft v. Conoco, 218 F.3d 282, 287, 28 Media L. Rep. 2103 (4th Cir. 2000). To guide the courts in balancing these interests, the Fourth Circuit in LaRouche v. Nat’l Broadcasting Co. adopted a three-part test: “(1) whether the information is relevant, (2) whether the information can be obtained by alternative means, and (3) whether there is a compelling interest in the information.” LaRouche, 780 F.2d 1134, 1139, 12 Media L. Rep. 1585 (4th Cir. 1986) (citing Miller v. Transamerican Press, Inc., 621 F.2d 721, 726 (5th Cir. 1980). The Fourth Circuit does not explicitly place the burden of persuasion on the subpoenaing party.
The subpoenaing party bears the burden of proving the elements necessary to overcome a reporter's privilege. Miller v. Transamerican Press, Inc., 628 F.2d 932, 932 (5th Cir. 1980). Proof of each element of the test must be demonstrated by substantial evidence. Id.; In re Selcraig, 705 F.2d 789, 792 (5th Cir. 1983).
To overcome a journalist's claim of First Amendment privilege, the subpoenaing party must produce "credible evidence," "compelling evidence," a "concrete demonstration" that the subpoenaed materials will be centrally relevant to an important legal issue in the case and that the information is not otherwise available from another source. Southwell v. Southern Poverty Law Ctr., 949 F.Supp. 1303 (W.D. Mich. 1996).
Courts in the Seventh Circuit employ a “relative hardship” standard in determining whether to quash a subpoena. Beverly v. Watson, No. 14-cv-4970, 2016 U.S. Dist. LEXIS 87725, *18 (N.D. Ill. July 7, 2016) (Finnegan, Mag.) (standard is “relative hardship” or whether burden of production would outweigh benefit); Wilson v. O'Brien, 2009 U.S. Dist. LEXIS 22967, *19, 2009 WL 763785 (“reasonable under the circumstances”); Mosely v. City of Chicago, 252 F.R.D. 421, 427 (N.D. Ill. 2008) (in Seventh Circuit, subpoenas directed to journalists and media, like those to any non-party, need only be "reasonable in the circumstances”). A subpoenaing party seeking to compel the disclosure of information from a journalist gathered in the course of newsgathering must show that the evidence is highly probative of issues relevant to the case and that it does not have the evidence, or it is otherwise unavailable to them. Bond v. Utreras, No. 04 C 2617, 2006 WL 1806387 at *6, (N.D. Ill. June 27, 2006). In Patterson v. Burge, No. 03 C 4433, 2005 WL 43240 (N.D. Ill. Jan. 6, 2005), the court held the party enforcing a subpoena must showing materiality and that they do not have the information sought and it is not available from other sources. Id. at *2 - *3. See also Neal v. City of Harvey, Ill., 173 F.R.D. 231, 233 (N.D. Ill. 1993) (subpoenaing party must show: "(1) that the information is not available from a non-journalistic source; and (2) that it is highly relevant and material to the case at bar."). See Builders Assoc. of Greater Chicago v. County of Cook, No. 96 C 1121, 1998 WL 111702, at *5 (N.D. Ill. Mar. 12, 1998).
In Continental Cablevision, the district court held that "it is only after a reporter makes a minimal prima facie showing that responding to discovery or testimonial requests will impinge on first amendment interests that the burden shifts to the party seeking discovery to demonstrate the efforts made to obtain the information elsewhere and the extent to which the information is relevant." Continental Cablevision, Inc. v. Storer Broad. Co., 583 F. Supp. 427, 436 (E.D. Miss. 1984).
When a journalist properly invokes the reporter’s privilege, the burden shifts to the party seeking the discovery to demonstrate a sufficiently compelling need for the journalist’s materials in order to overcome the privilege. See Shoen v. Shoen, 5 F.3d 1289, 1296 (9th Cir. 1993) (Shoen I) (reversing and remanding an order holding an investigative reporter in contempt for refusing to divulge information that was gathered for use in his book).
Alaska appellate courts have not had occasion to squarely address the existence or scope of a reporter's privilege, and the trial courts have not specifically addressed this issue. In those trial court proceedings where the qualified constitutional reporter's privilege has been asserted, it has been assumed that to overcome the privilege the subpoenaing party must make a showing that the information sought is crucial to, or goes to the heart of, its case, and that this information is unavailable from other sources not protected by this First Amendment privilege. The shield law, if applicable, requires the applicant for divestiture of the privilege to show, usually by verified petition, reasons why the disclosure is essential to the administration of justice, a fair trial in the instant proceeding, or the protection of the public interest.
The party serving a subpoena on a newsperson has the initial burden of demonstrating compliance with requirements set forth in A.R.S. § 12-2214(A)(1)-(6), the statute governing subpoenas. The party seeking production must identify with reasonable detail in the required affidavit the information requested, the efforts made to acquire it, and from what sources. Id. Once a party serving a subpoena on a newsperson has complied with A.R.S. § 12-2214(a), the burden shifts to the party being served to controvert the allegations of the affidavit; it is not sufficient to claim that the same information can be obtained elsewhere. Bartlett, 150 Ariz. at 183, 722 P.2d at 351 (citing A.R.S. § 12-2214). The subject of the subpoena may “controvert the allegations of the affidavit and set forth the bases therefore by either filing a controverting affidavit or moving to quash the subpoena.” Reinstein, 240 Ariz. at 446, 381 P.3d at 240.
The evidentiary standard for a party seeking disclosure to prove bad faith, malice, and not in the interest of the public welfare is by a preponderance of the evidence. The burden of proof is on the party seeking disclosure. See Saxton v. Arkansas Gazette Co., 264 Ark. 133, 569 S.W.2d 115 (1978).
The California Supreme Court has stated that “a person claiming a privilege bears the burden of proving he is entitled to the privilege.” Delaney v. Superior Court, 50 Cal. 3d 785, 806 n.20, 789 P.2d 934, 268 Cal. Rptr. 753 (1990) (citations omitted). Consequently, “[t]he newsperson seeking immunity must prove all the requirements of the shield law have been met.” Id. One court asserted that the reporter’s burden is “to show that they were in a class of persons protected by the shield law and that the information provided by their source was ‘procured … for news or news commentary purposes on radio or television.’” In re Willon, 47 Cal. App. 4th 1080, 1092-93, 55 Cal. Rptr. 2d 245 (1996) (citations omitted). Another court held that the reporter must make a prima facie showing that the information was obtained “for the journalistic purpose of communicating information to the public.” Rancho Publications v. Superior Court, 68 Cal. App. 4th 1538, 1546, 81 Cal. Rptr. 2d 274 (1999).
Once the journalist meets this initial burden, the burden “shifts to the criminal defendant seeking discovery to make the showing required to overcome the shield law.” Delaney, 50 Cal. 3d at 806 n.20 (citation omitted). The trial court may require defendant to submit an offer of proof to meet his or her burden under Delaney. It is insufficient for the defendant to simply submit the questions he or she hopes to ask the reporter. People v. Vasco, 131 Cal. App. 4th 137, 155, 31 Cal. Rptr. 3d 643 (2005). In Vasco, for example, the court noted that “defendant filed no declarations or investigative reports to support her Delaney showing.” Id. (citing cases holding that “offer of proof must set forth the substance and purpose of the evidence”). Thus, the court concluded that defendant was not entitled to compel disclosure of the reporter’s unpublished information. Id. at 156.
In opposing a Motion to Quash, the party seeking the information has the burden of proving that (1) the information sought is directly relevant to a substantial issue in the case; (2) there are no other reasonable means of obtaining the information; and (3) the interest in obtaining the information outweighs any First Amendment interest of the newsperson. These three elements must be established by a preponderance of the evidence. C.R.S. §§ 13-90-119(3)(a)(c).
Under the Shield Law, the party seeking to compel disclosure must prove by "clear and convincing evidence" the following:
"(1) That (A) in a criminal investigation or prosecution, based on information obtained from other sources than the news media, there are reasonable grounds to believe that a crime has occurred, or (B) in a civil action or proceeding, based on information obtained from other sources than the news media, there are reasonable grounds to sustain a cause of action; and
(A) the information or the identity of the source of such information is critical or necessary to the investigation or prosecution of a crime or to a defense thereto, or to the maintenance of a party's claim, defense or proof of an issue material thereto,
(B) the information or the identity of the source of such information is not obtainable from any alternative source, and
(C) there is an overriding public interest in the disclosure."
Conn. Gen. Stat. § 52-146t(d)
There have been no appellate cases interpreting the elements of the Shield Law, but guidance may be found in the case law applying the common-law standard developed primarily by federal courts. Under the federal court analysis, before the privilege can be overcome, the party seeking to compel disclosure of unpublished information or material from a journalist or publication bears the burden of showing: (1) that the information he seeks is material, relevant and necessary for his case -- that it goes to the heart of his case; (2) that there is no other source unprotected by the First Amendment from which the party could get the information; and (3) that he has exhausted other means of obtaining the information. Riley v. City of Chester, 612 F.2d 708, 716-717 (3 Cir.; 1979); Baker v. F & F Investment, 470 F.2d 778, 784-785 (2 Cir.; 1972), cert. den. 411 U.S. 966; Application to Quash Subpoena To National Broadcasting Co.: Krase v. Graco Children's Products, Inc., 79 F.3d 346, 353 (2 Cir. 1996); Carey v. Hume, 492 F.2d 631, 637-639 (D.C. Cir.; 1974); Garland v. Torre, 259 F.2d 545 (2 Cir.; 1958), cert. den., 358 U.S. 910. In making the showing as to exhaustion of alternative sources, it has been held, for instance, that requiring the taking of as many as 60 non-journalist depositions of those likely to possess the information is a legitimate exhaustion requirement. Baker, supra, cited in Carey, supra, at 639. The showing that the one seeking to overcome the privilege has the burden of making is "a clear and specific showing" and must be "a concern so compelling as to override the precious rights of freedom of speech and the press." United States v. Burke, 700 F.2d 70, 76-78 (2 Cir.; 1983); Baker, supra at 785.
A Superior Court judge applied the elements of the statute to a claim and found that prosecutors did not submit sufficient evidence “to show that the information was critical and necessary, that it sought specific information and had exhausted other available means of attaining that specific information, or that more than a generalized public interest in the disclosure existed.” State v. Golder, Docket No. FST CR070161593T (Super. Ct. of Stamford-Norwalk, August 6, 2008, Kavanewsky, J.).
The journalist or other proponent of the privilege must establish that the privilege applies, i.e., that information was obtained with the intent and purpose of disseminating it to the public. Goldberg v. Amgen, Inc., 123 F. Supp. 3d 9, 15 (D.D.C. 2015); Hutira v. Islamic Republic of Iran, 211 F. Supp. 2d 115, 119 n.4 (D.D.C. 2002). Thereafter, the burden shifts to the party seeking the information to show that the information is highly relevant to its case, and that either no other available means of obtaining it exists or that all other reasonable alternatives have been exhausted. Zerilli v. Smith, 656 F.2d 705, 711-714 (D.C. Cir. 1981); Lee v. Dep’t of Justice, 413 F.3d 53 (D.C. Cir. 2005). In Estate of Klieman v. Palestinian Authority, for example, the district court initially ordered the BBC to produce outtakes from a documentary after finding that those materials were relevant to plaintiffs’ case and were unavailable from reasonable alternative sources, but it later stayed that ruling after subsequent discovery led to “uncertainty as to whether alternative sources of information are reasonably available.” 18 F. Supp. 3d 4, 6 (D.D.C. 2014).
District of Columbia
The person seeking to invoke the privilege must first establish that he or she falls within the ambit of the shield law, i.e., that he or she is a member of the news media and that the information sought concerns a source or otherwise was collected or obtained while acting in an official newsgathering capacity. Prentice v. McPhilemy, 27 Med. L. Rptr. 2377, 2383 (D.C. Super. Ct. 1999). After a party establishes that information sought falls within the scope of the shield law, the burden shifts to the party seeking the information to show that it is not protected. The District’s shield law accords absolute protection to news sources, whether confidential or not, and whether disclosed to third parties or not. Grunseth v. Marriott Corp., 868 F. Supp. 333, 336 (D.D.C. 1994); Prentice, 27 Med. L. Rptr. at 2381. Thus, if the person receiving the subpoena demonstrates that the requested information concerns sources of information obtained while acting in an official newsgathering or reporting capacity, the inquiry ends. However, if the information sought concerns material other than a source, then the court must perform the balancing test set out in D.C. Code §16-4703.
Once the journalist establishes that he or she is covered by the privilege, the burden shifts to the subpoenaing party to make a clear and specific showing that the privilege has been overcome. If the privilege has been overcome, then the judge must limit the compelled disclosure to those items of information for which the clear and specific showing has been made and must support the decision with clear and specific findings made after a hearing.
Once a member of the news media demonstrates that he or she is covered under the privilege, the challenged subpoena should be quashed unless the subpoenaing party can demonstrate either that the privilege has been waived or that the information sought (1) is material and relevant; (2) cannot be reasonably obtained by alternative means; and (3) is necessary to the proper preparation or presentation of the case of a party seeking the information, document, or item. O.C.G.A. § 24-5-508.
Georgia's appellate courts have repeatedly affirmed trial courts that have rejected showings as insufficient. See, e.g., Stripling v. State, 261 Ga. 1, 8-9 (1991); Nobles v. State, 201 Ga. App. 483, 486-87 (1991).
The Idaho cases do not discuss the burden of proof. However, as a practical matter and by analogy to other testimonial privileges, the reporter will bear the burden in the first instance of convincing the court that the reporter's privilege is properly considered upon the particular facts, as a matter of law. At that point, the burden should presumably shift to the party seeking to compel the reporter's testimony to prove that the elements of the Branzburg test adopted by the Idaho Supreme Court in the Wright case support overcoming the presumed protection afforded by the privilege against compelled disclosure. In other words, the party seeking the testimony or information ought to carry the burden of proof on establishing that the reporter has information clearly relevant to a specific probable violation of law; that the information cannot be obtained by alternative means less destructive of First Amendment rights and that there is an overriding and compelling interest to be served by requiring the reporter to provide such information. See In re Wright, 108 Idaho 418, 421, 700 P.2d 40, 43 (1985).
Nonetheless, as a practical matter, the more proof the reporter can offer to demonstrate that the test cannot be satisfied, the more likely that the subpoena will be quashed, regardless of where the court assigns the burden.
Although the Statute does not explicitly state a standard of proof, section 8-905 states that “all proceedings in connection with obtaining an adjudication upon the application not otherwise provided in Part 9 of Article VIII of this [Statute] shall be as in other civil cases.” A petitioner seeking disclosure must prove compliance with the statutory requirements by a preponderance of the evidence; with regard to the issue of exhaustion, this burden amounts to requiring the petitioner to prove a negative. In re Arya, 226 Ill. App. 3d 848, 589 N.E.2d 832 (1992); People v. McKee, 2014 IL App (3d) 130696 ¶ 10, 24 N.E.3d 75, 43 Media L. Rep. 1123 (2014).
Generally, the burden is on the party moving to quash a subpoena for documents to show why the documents should not be produced. Newton v. Yates, 353 N.E.2d 485, 501 (Ind. App. 1976).
It is unclear who has the burden under the First Amendment reporter’s privilege recognized for civil cases in Matter of Stearns (Vollmer v. Zulka), 489 N.E.2d 146 (Ind. App. 1986), although the court cites a Texas case giving the burden to the discovering party.
If the subpoenaed party falls into the protected class of journalists, his or her information is deemed presumptively privileged. Lamberto, 326 N.W.2d at 309. Thereafter, the burden falls on the requesting party to show, by a preponderance of the evidence, a substantial need for the information and that other means of attaining the information have been exhausted. Id.
The language of the Kansas shield law allocates the burden of making a showing sufficient to overcome the rights of the journalist to the party seeking disclosure. In addition, as noted elsewhere, there are at least three decisions in non-journalist cases that suggest a party seeking “confidential” information must demonstrate that it is unavailable from other sources. In federal cases, the burden is on the litigant seeking to overcome the privilege claim to demonstrate that the information in issue is crucial to his or her case and that it is unavailable from other sources.
A motion to quash pursuant to the Kansas shield law will be decided based on K.S.A. 60-482, which provides that:
(a) A journalist may not be compelled to disclose any previously undisclosed information or the source of any such information procured while acting as a journalist until the party seeking to compel the disclosure establishes by a preponderance of the evidence in district court that the disclosure sought:
(1) Is material and relevant to the proceeding for which the disclosure is sought;
(2) could not, after a showing of reasonable effort, be obtained by readily available alternative means; and
(3) is of a compelling interest.
(b) For purposes of this section, a “compelling interest” is evidence likely to be admissible and has probative value that is likely to outweigh any harm done to the free dissemination of information to the public through the activities of journalists, which includes, but is not limited to:
(1) The prevention of a certain miscarriage of justice; or
(2) an imminent act that would result in death or great bodily harm.
Interests that are not compelling include, but are not limited to, those of parties whose litigation lacks sufficient grounds, is abusive or is brought in bad faith.
K.S.A. 60-482. This provision has yet to be analyzed or construed by the Kansas appellate courts.
Generally, Kentucky law places the burden to prove the applicability of a privilege on the party who asserts the privilege. See Richmond Health Facilities-Madison, LP v. Clouse, 473 S.W.3d 79, 85 (Ky. 2015); Stidham v. Clark, 74 S.W.3d 719, 725 (Ky. 2002). With specific reference to the reporter’s shield law, KRS 421.100, Kentucky courts have held that “a fishing expedition will not be tolerated,” that a litigant’s right to information must be weighed against “the importance of freedom of the press,” and that “the limited statutory privilege in KRS 421.100 must be observed.” Lexington Herald-Leader Co. v. Beard, 690 S.W.2d 374, 379 (Ky. 1984).
Once a news media member demonstrates that he is covered under the privilege, the burden of proof lies on the party seeking the information. La. R.S. 45:1459(B)(1). The burden of proof rests on the subpoenaing party to make a "clear and convincing showing" that the privilege does not apply. Id.
In the usual case, if one can get the Court to recognize the privilege, then the burden is on the issuer to establish that the information is relevant, essential to the case and not obtainable from any other source. However, the reporter may have to demonstrate confidentiality to the extent that it was a factor.
If the subpoena is issued under the Grand Jury statute or the Prosecutor's statute, if the privilege applies, the subpoena is quashed. However, if the grand jury proceeding is investigating a crime which provides for life imprisonment, then the issuer of the subpoena must meet the Branzburg test: the information which is sought must be essential to the purpose of the proceeding and other available sources of the information have been exhausted.
Under the Prosecutor's subpoena statute MCL 767A.6, the privilege applies to news gatherers unless they are the target of the investigation or the material sought has been published. The Prosecutor has the burden of showing one or the other if she wants to enforce the subpoena against a news gatherer.
The person seeking to compel disclosure of information protected by the shield statute in a criminal case must establish each element for one of the exceptions by "clear and convincing evidence." Minn. Stat. § 595.024 subd.2.
In a defamation action, §595.025 “requires an affirmative showing, with concrete evidence, that disclosure of the source will lead to persuasive evidence on the elements of a defamation claim. District courts, when conducting this analysis, must necessarily review the merits of the defamation claim, but will not . . . impose a prima-facie-case requirement.” Range Development Co. of Chisholm v. Star Tribune, 885 N.W.2d 500, 505 (Minn. App. 2016); id. at 511 (“the act puts the burden on [plaintiff], not [the reporter] to demonstrate that the source has relevant information and to establish probable cause that this information is clearly relevant to falsity or actual malice. . . . While this demonstration need not rise to the level of establishing a prima facie case, it does require an affirmative showing. And the burden of that showing falls on [plaintiff], not [the reporter].”); id. at 509 (“when examining whether a party has affirmatively shown that disclosure of the source will lead to persuasive evidence, we conclude that a district court should objectively assess the proffered evidence.”).
The party seeking the information must show: (1) The testimony of the reporter is highly relevant to the seeking party’s case; (2) there is a compelling need for the testimony sufficient to override the reporter's First Amendment privilege; and (3) the seeking party has unsuccessfully attempted to obtain the information possessed by the reporter from other sources.
The statutory privilege applies to all unpublished or nonbroadcast information. Once the reporter establishes that he or she is entitled to the privilege (i.e., that he or she was engaged in procuring, etc., news or other information for dissemination to the public), no statutory exceptions allow the subpoenaing party to overcome the privilege. It is possible that a criminal defendant may overcome the privilege by demonstrating violation of his or her Sixth Amendment right to a fair trial. While no Nebraska cases address this issue, courts in other jurisdictions have required the defendant to establish that the information sought is admissible in evidence, central or crucial to the defense, and not otherwise available or obtainable.
NRS 49.275 provides for an absolute privilege, for both published and unpublished information. The news shield statute is not limited to confidential sources but includes any source. The statute protects both the information obtained and the source of the information. However, the Nevada Supreme Court has stated, in dicta, that "although the news shield statute provides an absolute privilege to reporters engaged in the newsgathering process, there may be certain situations, e.g., when a defendant's countervailing constitutional rights are at issue, in which the news shield statute might have to yield so that justice may be served." Aspen Fin. Services, Inc. v. Eighth Judicial Dist. Court of State ex rel. County of Clark, 129 Nev. 878, 313 P.3d 875, 879-80 (2013), citing Diaz v. Eighth Judicial District Court, 116 Nev. 88, 993 P.2d 50, 59 (2000). It has not issued any opinions concerning a conflict between a criminal defendant's constitutional rights and the rights of the media under NRS 49.275. It is therefore unclear as to who would bear the burden and what the standard of proof would be in such a case.
Once a member of the news media demonstrates that they are covered by the privilege, a defendant in a criminal case may overcome the privilege by showing:
(1) the defendant has attempted unsuccessfully to obtain the information by all reasonable alternatives;
(2) the information would not be irrelevant to his defense; and
(3) by a balance of the probabilities, there is a reasonable possibility that the information sought as evidence would affect the verdict in his case.
See State v. Siel, 122 N.H. 254, 259-60. The First Circuit Court of Appeals endorsed the same test in a libel action with the media defendant. See Gray v. St. Martin's Press, 221 F.3d 243, 253 (2000). The burden of proof is discussed at length in the opinion issued in New Hampshire v. Siel, 7 Med. L. Rptr. 1904 (1981), by Justice David Souter, then a trial judge in the New Hampshire Superior Court.
Once a reporter or editor has demonstrated that he or she is a member of the news media and the information was gathered in the course of pursuing his/her professional activities in a civil matter, the privilege is absolute, and only a criminal defendant can proceed to attempt to compel testimony. In criminal proceedings the privilege is not absolute; it may be pierced by a criminal defendant upon a showing that "by a preponderance of the evidence that there is a reasonable probability that the subpoenaed materials are relevant, material and necessary to the defense, that they could not be secured from any less intrusive source, that the value of the material sought as it bears upon the issue of guilt or innocence outweighs the privilege against disclosure, and that the request is not overbroad, oppressive, or unreasonably burdensome which may be overcome by evidence that all or part of the information sought is irrelevant, immaterial, unnecessary to the defense, or that it can be secured from another source." Even after the defendant makes such a showing the court is required to review the materials or potential testimony in camera to determine the admissibility. Only if the court also finds the materials and/or testimony will be admissible will it order the materials produced or the reporter to testify.
The reporter or publisher has the burden of proving the essential elements of the privileged relationship: "the intent [of the reporter] to use material -- sought, gathered, or received -- to disseminate information to the public and that such intent existed at the inception of the newsgathering process." In the Matter of Application of Waldholz, 1996 WL 389261, *2 (S.D.N.Y. 1996), citing von Bulow by Auersperg v. von Bulow, 811 F.2d 136, 144 (2d Cir. 1987). "To invoke the [absolute] privilege, the journalist carries the burden of proffering at least preponderant evidence of mutuality of the understanding, or agreement, of confidentiality. He may do so by direct or indirect evidence, by presenting proof of an express, i.e., a verbalized, understanding or agreement, or by offering preponderant proof of circumstances from which a mutual agreement of confidentiality may be implied." Andrews v. Andreoli, 92 Misc.2d 410, 418, 400 N.Y.S.2d 442, 447 (Sup. Ct. Onondaga County 1977). See PPM America, Inc. v. Marriott Corp., 152 F.R.D. 32, 36 (S.D.N.Y. 1996) (applying federal law).
If the information is not confidential and thus protected by the qualified privilege, the party seeking disclosure has the burden of making a "clear and specific showing" that the information or sources are highly relevant and material, critical or necessary, and not obtainable from any alternative source. In re Application of CBS, 232 A.D. 2d 291,292, 648 N.Y.S.2d 443 (1st Dep't 1996). See Matter of Subpoena to ABC, Inc., 189 Misc.2d 805, 735 N.Y.S.2d 919 (Sup. Ct. N.Y. County 2001); Greenfield v. Schultz, 173 Misc.2d 31, 660 N.Y.S.2d 624 (Sup. Ct. N.Y. County 1997), aff'd in part, modified in part on other grounds, vacated in part on other grounds, 251 A.D.2d 67, 673 N.Y.S.2d 684 (1st Dep't 1998)
The three-part test which must be met to overcome a qualified privilege for nonconfidential information is not satisfied absent clear and specific proof that the claim for which the information is requested "virtually rises or falls with admission or exclusion of the proffered evidence." In Re. Application to quash Subpoena to NBC, 79 F.3d 346, 351 (2d Cir 1996) (applying New York Shield Law). The test is not merely whether the material may be helpful or probative, but whether "the action may be presented without it." Id. See Flynn v. NYP Holdings, Inc., 235 A.D.2d 907, 652 N.Y.S.2d 833 (3d Dep't 1997); In Re Grand Jury Subpoena to Maguire, 161 Misc.2d 960, 965, 615 N.Y.S.2d 848, 851 (1994); In re Grand Jury Subpoenas Served on NBC, 178 Misc.2d 1052, 683 N.Y.S.2d 708 (1998); United Auto Group v. Ewing, 34 Med. L. Rptr. 1801 (S.D.N.Y. 2006). The privilege may only yield when the "party seeking the material can define the specific issue, other than general credibility, as to which the sought after interview provides truly necessary proof." Matter of Subpoena to ABC, 189 Misc.2d at 808.
In order to overcome a privilege, a party must show that the information was relevant, could not be obtained from alternative sources, and furthered a compelling need. See, e.g., State v. Daniel, 11th Dist. Trumbull No. 89-T-4214, 1990 WL 237188, (Dec. 31, 1990).
Before a defendant in a criminal proceeding is entitled to either a newsperson's confidential information or confidential source, the defendant must first demonstrate to the court that either the newsperson or the confidential source has relevant evidence regarding the defendant's guilt or innocence. The defendant must show that he has exhausted all available means of obtaining the confidential information requested of the newsperson. Further, the defendant must make an effort to examine the newsperson concerning his non-confidential information and must request an in camera inspection by the court of the newsperson's confidential information. If, after these steps are taken, there is direct evidence and reasonable inferences flowing therefrom that there is a reasonable probability that the newsperson or the confidential source will provide relevant evidence of the defendant's guilt or innocence, the defendant is entitled to either the newsperson's confidential information or the name of his confidential source. In re McAuley, 63 Ohio App.2d 5, 408 N.E.2d 97 (8th Dist. 1979)
There are no statutory or case law rules regarding standard of proof, except that in arguing that compulsory process entitles a criminal defendant to overcome the privilege, the defendant must establish that the information sought is both material and favorable. State ex rel Meyer v. Howell, 86 Or. App. 570, 579, 740 P.2d 792, 797 (1987).
The Pennsylvania Shield Law provides an absolute privilege against compelled disclosure of confidential source information. There is no case law specifically addressing who maintains the burden of establishing the applicability of the Shield Law to the subpoenaed information.
With respect to the First Amendment privilege, the party seeking disclosure bears the burden of proof. Commonwealth v. Bowden, 838 A.2d 740, 743 (Pa. 2003). The party seeking disclosure must do “more than demonstrate a mere possibility that a media entity possesses relevant information.” Davis v. Glanton, 705 A.2d 879, 886 (Pa. Super. 1997). It must meet the three-part test, showing that “(1) it has made an effort to obtain the information from other sources; (2) the information is only accessible through the reporters and their sources; and (3) the information is critical to the case.” Castellani v. Scranton Times, L.P., 956 A.2d 937, 950 n.11 (Pa. 2008) (citing Bowden, 838 A.2d at 752). Courts can compel disclosure only if they are able to make “specific findings of necessity.” Glanton, 705 A.2d at 886; see also United States v. Criden, 633 F.2d 346, 358-59 (3d Cir. 1980).
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." R.I. Gen. Laws § 9-19.1-3.
Certainly the burden of "going forward" will fall on the media contesting the subpoena. Once the privilege is raised, however, the burden of proof for the five-factor test in Hopewell, seems to fall on the party seeking to compel disclosure. However, absent any articulation of the actual standard of proof, it is probably mere preponderance.
The shield law provides that the party seeking to enforce a subpoena directed to a reporter must show by clear and convincing evidence three elements: (A) there is probable cause that the information sought by the subpoena is clearly relevant to a specific probable violation of law; (B) the information sought cannot be obtained by alternative means; and (C) there is a compelling and overriding public interest in the information. Tenn. Code § 24-1-208(c)(2). See Haney v. Copeland, 291 B.R. 740, 756 (Bankr. E.D. Tenn. 2003) (stating that a party's application for divestiture will be denied if all three requirements of subsection (c)(2) are not proven by clear and convincing evidence); Moore v. Domino's Pizza, L.L.C., 199 F.R.D. 598 (W.D. Tenn. 2000) (stating that each of the three factors set forth in section 24-1-208(c) must be established by clear and convincing evidence to divest a news reporter of the privilege); State ex rel. Gerbitz v. Curriden, 738 S.W.2d 192 (Tenn. 1987); State v. Kendrick, 178 S.W.3d 734, 737 (Tenn. Crim. App. 2005); State v. Shaffer, No. 89-208-II, 1990 WL 3347,1990 Tenn. App. LEXIS 21, 17 Med. L. Rptr. 3347 (Tenn. Ct. App. 1990) (stating that, unless and until each element set forth in subsection (c)(2) is proven by clear and convincing evidence, the court will not enter an order divesting the privilege).
The standard of proof under the civil and criminal provisions of the Texas Free Flow of Information Act for a subpoenaing party is a “clear and specific showing.” This standard is more than a preponderance of the evidence but likely less than clear and convincing evidence. The standard was taken from language in the case of Channel Two Television Co. v. Dickerson, 725 S.W.2d 470, 472 (Tex. App.—Houston [1st Dist.] 1987, no writ).
In the civil context, the subpoenaing party must make a clear and specific showing that:
(1) all reasonable efforts have been exhausted to obtain the information from alternative sources;
(2) the subpoena is not overbroad, unreasonable, or oppressive and, when appropriate, will be limited to the verification of published information and the surrounding circumstances relating to the accuracy of the published information;
(3) reasonable and timely notice was given of the demand for the information, document, or item;
(4) in this instance, the interest of the party subpoenaing the information outweighs the public interest in gathering and dissemination of news, including the concerns of the journalist;
(5) the subpoena or compulsory process is not being used to obtain peripheral, nonessential, or speculative information; and
(6) the information, document, or item is relevant and material to the proper administration of the official proceeding for which the testimony, production, or disclosure is sought and is essential to the maintenance of a claim or defense of the person seeking the testimony, production, or disclosure.
Tex. Civ. Prac. & Rem. Code §22.024.
In the criminal context, the burden is also on the subpoenaing party; however, the test that must be met varies based upon whether one is seeking confidential or non-confidential source information or published or unpublished documents. When a confidential source is involved, there is a privilege except to the extent that (1) the journalist was an eye witness to a felony, (2) the journalist received a confession of the commission of a felony, or (3) probable cause exists that the source committed a felony. Tex. Code Crim. Proc. art. 38.11, §§4(a)(1)-(3). In those three scenarios, the only hurdle one must overcome before calling the journalist to testify is establishing by clear and specific evidence that they have exhausted all reasonable efforts to get the information elsewhere. Id. Further, a journalist can be compelled to give up his confidential source if disclosure is reasonably necessary to stop or prevent reasonably certain death or substantial bodily harm. Tex. Code Crim. Proc. art. 38.11, §4(a)(4).
With regard to unpublished materials (i.e., work product) and non-confidential sources in the criminal setting, the subpoenaing party must make a clear and specific showing that: (1) all reasonable efforts have been exhausted to obtain the information from alternative sources; (2) the information sought is relevant and material to the proper administration of the official proceeding and is essential to the maintenance of a claim or defense of the person seeking the information; or (3) the information sought is central to the investigation or prosecution of a criminal case and based on something other than the assertion of the person requesting the subpoena, reasonable grounds exist to believe that a crime has occurred. Tex. Code Crim. Proc. art. 38.11, §5(a). The court should also consider several other factors including the reasonableness, timely notice, the balancing of interests involved and the speculative nature of the subpoena when considering an order to compel testimony. Tex. Code Crim. Proc. art. 38.11, §5(b).
Published materials are not covered by the statute so one would look to common law with regard to those materials. Tex. Code Crim. Proc. art. 38.11, §8.
With respect to confidential source information and confidential unpublished news information, the burden of proof is on the party seeking such information. See Utah R. Evid. 509(b) & (c). With respect to nonconfidential unpublished news information, the initial burden of proof is upon the party claiming the privilege to demonstrate that “the interest of a continued free flow of information to news reporters outweighs the need for disclosure.” See Rule 509(d). This burden is satisfied by applying the factors set forth in Silkwood and Bottomly, i.e. materiality and relevance of information sought, availability of information from alternative source, the type of controversy, as well as other public interest factors. See Utah R. Evid. 509 advisory committee note (1998). Once a news reporter establishes that application of the Siklkwood/Bottomly and public interest factors weigh in favor of non-disclosure, the burden shifts to the party seeking disclosure of the information.
Information received or gathered by a journalist in confidence is entitled to absolute protection and cannot be compelled to be produced in any situation. 12 V.S.A. § 1615(b)(1). Once a motion to quash is filed and a reporter’s qualified privilege has been asserted for non-confidential information, the party seeking the information bears the burden of demonstrating to the court that it can meet each part of the three-part statutory test to overcome the privilege. Id. at § 1615(b)(2). The statute places the burden squarely on “the party seeking the news or information” to establish, “by clear and convincing evidence,” that the test has been met. Id. This standard has real teeth. As the Vermont Supreme Court has explained, “[c]lear and convincing evidence is a ‘very demanding’ standard, requiring somewhat less than evidence beyond a reasonable doubt, but more than a preponderance of the evidence” and is a “heightened burden of proof.” In re E.T., 2004 VT 111, ¶ 12, 177 Vt. 405, 865 A.2d 416 (Vt. 2004) (emphasis added) (quoting In re N.H., 168 Vt. 508, 512 (Vt. 1998)). While the clear and convincing evidence standard “does not require that evidence in support of a fact be uncontradicted,” it does require that “the fact’s existence be ‘highly probable.’” Id. (quoting In re N.H., 168 Vt. at 512).
In civil actions at least, "good cause" is required for the issuance of a protective order under CR 26(c); Rhinehart v. Seattle Times Co., 98 Wn. 2d 226, 654 P.2d 673 (1982).
Section 2 of the shield statute requires "clear and convincing evidence" before requiring the news media to produce journalist work product. See RCW 5.68.010(2).
In civil and administrative proceedings, a subpoenaing party may overcome the qualified reporter's privilege only if it can make "a clear and specific showing that the information is highly material and relevant, necessary or critical to the maintenance of the claim, and not obtainable from other available sources." Hudok, 389 S.E.2d at 193. In criminal proceedings, a criminal defendant must make a similar showing, "with particularity," as it relates to his theory or theories of defense, meaning, he must explain "what information he/she expects the media material to contain. A mere bald assertion, standing alone, that the allegedly privileged information satisfies the requisite criteria will not suffice. Ranson, 488 S.E.2d at 12. When the subpoenaing party seeks to compel a reporter to disclose the identity of a confidential source, that party has the added burden of proving such testimony or information “is necessary to prevent imminent death, serious bodily injury or unjust incarceration.” W.Va. Code § 57-3-10.
West Virginia Rule of Civil Procedure 45(d)(3)(A) governs motions to quash or modify a subpoena. Pursuant to that Rule, a subpoena may be modified or quashed if it (i) fails to allow a reasonable time for compliance; (ii) requires a person to travel for a deposition to a place other than a county in which that person resides or is employed or transacts business in person; (iii) requires disclosure of privileged or other protected matter and no exception or waiver applies; or (iv) subjects a person to “undue burden.”
For non-confidential information, a subpoena compelling a news person to testify about or disclose or produce any news, information, or source can be issued only by a circuit court, not an attorney. Before such a subpoena will be issued, the news person must receive notice and have an opportunity to be heard. Wis. Stat. § 885.14(2)(b).
The person requesting the subpoena must establish, by clear and convincing evidence,
- In a criminal prosecution or investigation that there are reasonable grounds to believe that a crime has occurred.
- In a civil action or proceeding that the complaint states a claim upon which relief may be granted.
Wis. Stat. § 885.14(2)(b).
Once those prerequisites are satisfied, the circuit court may issue a subpoena only if four additional conditions are all met:
- The news, information, or identity of the source is highly relevant to the investigation, prosecution, action, or proceeding.
- The news, information, or identity of the source is necessary to the maintenance of a party's claim, defense, or to the proof of an issue material to the investigation, prosecution, action, or proceeding.
- The news, information, or identity of the source is not obtainable from any alternative source for the investigation, prosecution, action, or proceeding.
- There is an overriding public interest in the disclosure of the news, information, or identity of the source.
Wis. Stat. § 885.14(2)(c).