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a. Disclosure of confidential source's name

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  • 1st Circuit

    There is no reported First Circuit decision specifically addressing this issue.

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  • 2nd Circuit

    There appears to be no statutory or caselaw addressing whether disclosure of a confidential source's name is an automatic waiver of privilege.

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  • 3rd Circuit

    Courts in the Third Circuit do not appear to have expressly addressed this point in a relevant context. As noted in the preceding section, however, disclosure of a source's name by the source does not waive the reporter's privilege.

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  • 4th Circuit

    There is no statutory or case law in the Fourth Circuit addressing this issue.

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  • 5th Circuit

    There is no reported decision of the Fifth Circuit addressing whether disclosure of a confidential source's name is sufficient to waive the privilege.

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  • 6th Circuit

    There is no statutory or case law addressing this issue.

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  • 7th Circuit

    There is no federal statutory or federal case law on this issue in the Seventh Circuit.

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  • 8th Circuit

    Fridell: Where "the newspaper did not disclose the identity of the informant to a third party, as such, the newspaper did not waive the reporter's privilege and is not compelled to produce reporter's notes." J.J.C. v. Fridell, 165 F.R.D. 513, 517 (D. Minn. 1995).

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  • 9th Circuit

    There is no statutory or case law addressing this issue.

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  • Alabama

    There is no Alabama statutory or reported case law addressing the application of the reporter's privilege when the reporter has disclosed the name of a confidential source.

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  • Alaska

    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 articulated circumstances constituting waiver of the privilege or standards for determining that the privilege has been deemed waived.

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  • Arizona

    In Cooper Tire, the court found that the reporter did not waive the confidential source’s name by submitting it to the court for an in camera inspection and generally describing the documents.  Id. at 59, 178 P.3d at 1183.

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  • Arkansas

    The statute clearly extends the privilege to editors, see Ark. Code Ann. § 16-85-510, and Saxton indicates that a reporter who reveals the name of a confidential source to her editor has not by that act waived the privilege. See Saxton, 264 Ark. at 136-37, 569 S.W.2d at 117. Indeed, revealing the name of a confidential source to one's editor can be seen as a duty to one's employer imposed on the reporter. See generally Manson v. Little Rock Newspapers, Inc., 42 F. Supp. 2d 856 (E.D. Ark. 1999) (an employment-discrimination case).

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  • California

    One California court held that the privilege was waived when the previously confidential sources testified in open court. CBS, Inc. v. Superior Court, 85 Cal. App. 3d 241, 250, 149 Cal. Rptr. 421 (1978), disapproved on other grounds, Delaney v. Superior Court, 50 Cal. 3d 785, 797 n. 6, 789 P.2d 934, 268 Cal. Rptr. 753 (1990). The court reasoned “[s]ince this information is now a matter of public record, it is difficult to see how the production of tapes which will merely confirm – or at worst very slightly amplify – what has already been revealed, will materially erode the vicarious interest in confidentiality asserted by CBS.” Id.

    Other courts came to the opposite conclusion.  One court asserted that arguments based on the CBS decision “are manifestly in direct conflict with the statutory construction adopted herein. We find no support of these positions in the language of the statute.” Playboy Enterprises, Inc. v. Superior Court, 154 Cal. App. 3d 14, 23, 201 Cal. Rptr. 207 (1984). The court in Playboy Enterprises pointed out that the express language of the statute “does not allow the conclusion that protection of unpublished materials or information is dependent upon the continued confidentiality of the source.” Id; see also McGarry v. University of San Diego, 154 Cal. App. 4th 97, 120, 64 Cal. Rptr. 3d 467 (2007) (following Playboy in holding that “we do not believe a limited disclosure can be deemed to waive the immunity for refusing to reveal unpublished information”).

    Still another court viewed revelation of the source’s identity as a reason for refusing to compel disclosure of additional information from the reporter. In KSDO v. Superior Court, the reporter revealed the source’s identity and the court concluded that:

    [H]ere, the sources have been revealed so that plaintiffs are free to test the reliability of those sources and there is no showing that it is necessary to have [the reporter’s] notes to do so. Basically, plaintiffs are now able to get the information they seek from sources other than Brown’s notes.

    136 Cal. App. 3d 375, 386, 186 Cal. Rptr. 211 (1982).

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  • Colorado

    The privilege is waived only upon voluntary testimony or disclosure. The information may be disclosed without waiver to an editor or attorney representing the newsperson's organization. Gordon, 9 P.3d at 1119-24.

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  • D.C. Cir.

    No statutory or case law addressing this issue exists.

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  • Delaware

    Third party disclosure does not constitute waiver. 10 Del. C. § 4325.

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  • District of Columbia

    Under the plain terms of the statute, the disclosure of a source’s name, whether confidential or not, does not waive the privilege.  Grunseth v. Marriott Corp., 868 F. Supp. 333, 336 (D.D.C. 1994).

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  • Florida

    The disclosure of information by publication does not waive the journalist's privilege. § 90.5015(4), Fla. Stat. (2016). The privilege has been held applicable to the identities of confidential sources whose names were inadvertently disclosed. TheStreet.com, Inc. v. Carroll, 20 So.3d 947, 949-50 (Fla. 4th DCA 2009).

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  • Idaho

    There are no cases involving the media.

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  • Illinois

    There is no Illinois statutory or case law specifically addressing waiver of the privilege by disclosure of a confidential source’s name. The Statute protects both confidential and non-confidential material.

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  • Indiana

    In Matter of Indiana Newspapers, a plaintiff suing for defamation argued that the Indianapolis Star waived its shield law privilege regarding an anonymous commenter’s identity via its Privacy Notice and Terms of Service. 963 N.E.2d 534, 544 (Ind. Ct. App. 2012). The Star’s Privacy Notice warned users that their information could be released. Id. Further, the Star’s Terms of Service stated that the Star could release information regarding commenters’ posts to respond to third party claims. Id. The court rejected the plaintiff’s argument because the privilege belonged to the Star, and the Star chose to keep the commenter’s identity secret. Id.

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  • Iowa

    In Waterloo/Cedar Falls Courier, the court found the reporter’s privilege protected the editors from revealing their sources. 646 N.W.2d at 104.

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  • Kansas

    There is no statutory or case law addressing this issue. Pursuant to the statute noted above, however, the author believes that most state courts would view this as a waiver of the privilege.

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  • Kentucky

    Although there are no reported decisions on the issue of whether disclosure of a confidential source's name constitutes waiver of the privilege, at least with regard to attorney-client privilege, Kentucky Rules of Evidence make clear that disclosure of a confidential source's name to one's lawyer does not constitute waiver of the privilege. Ky. R. Evid. 503(b). Cf. Ky. R. Evid. 509 (excluding from the rule of waiver by voluntary disclosure disclosures that are themselves privileged, as defined by the Rules of Evidence. These include lawyer-client, husband-wife, religious, and counselor/therapist-client privilege).

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  • Louisiana

    In Pressey v. Patterson, 898 F.2d 1018, 1022 n.4 (5th Cir. 1990), the Fifth Circuit expressed "doubts" about whether a district court was correct in enforcing a reporter's privilege for interview tapes and mentioned in dicta that the nonconfidential source "had expressly waived the reporter's privilege."

    There is no other statutory language or Louisiana case law addressing whether disclosure of a confidential source's name waives the reporter's privilege.

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  • Maine

    Under the shield law, if the name is disclosed the privilege is waived. 16 M.R.S.A. 61(4).

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  • Maryland

    Maryland's statute provides absolute protection against compelled disclosure of confidential sources, even if the source's identity has been published.

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  • Massachusetts

    There is no case law on this issue.

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  • Michigan

    There have been no appellate cases discussing this precise issue.

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  • Minnesota

    A published statement that someone is not the source of information does not constitute a waiver of the privilege. J.J.C. v. Fridell, 165 F.R.D. 513, 517 (D. Minn. 1995) ("Mentioning who is not an informant is not the same as indicating who is the informant."). Only actual disclosure of the identity of the informant to a third party might constitute (but would not mandate) waiver. 165 F.R.D. at 517.

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  • Mississippi

    There is no statutory or case law addressing this issue.

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  • Missouri

    There is no statutory or case law addressing this issue.

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  • Montana

    Disclosure to some, e.g. an editor or lawyer, does not waive the privilege.

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  • Nebraska

    Publication or broadcast of the name clearly waives privilege. While there is no case law on the point, disclosure of a source's name outside the media organization might be deemed a waiver. No waiver should result from disclosure within the media organization (e.g., to an editor or news director), nor should waiver result from disclosure to the reporter's or organization's lawyer.

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  • New Hampshire

    There is no statutory or case law addressing this issue. See C.1 above

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  • New Jersey

    The name of the source may be disclosed to any other person who holds the privilege without a waiver occurring. A reporter may reveal the name to an editor, or another reporter. Such disclosure is not considered a waiver, nor is disclosure to an attorney in the course of defending against the subpoena. Disclosure to any other person in a non-privileged context would be a waiver. The statute creating the privilege specifically refers to a separate waiver statute:

    Rule 37. A person waives his right or privilege to refuse to disclose or to prevent another from disclosing a specified matter if he or any other person while the holder thereof has (a) contracted with anyone not to claim the right or privilege or, (b) without coercion and with knowledge of his right or privilege, made disclosure of any part of the privileged matter or consented to such a disclosure made by anyone.

    A disclosure which is itself privileged or otherwise protected by the common law, statutes or rules of court of this State, or by lawful contract, shall not constitute a waiver under this section. The failure of a witness to claim a right or privilege with respect to 1 question shall not operate as a waiver with respect to any other question."

    In the situation of a subpoena issued by a criminal defendant, any publication of privileged material effects a waiver as to the specific material published.  In re Schuman, 114 N.J. 14, 27 (1989).

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  • New Mexico

    No New Mexico law specifically addresses this issue.

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  • North Carolina

    No reported case in North Carolina has addressed whether disclosure of a confidential source's name is sufficient to find waiver of the privilege.

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  • North Dakota

    North Dakota has not yet determined whether the disclosure of a confidential source’s name would constitute a waiver of the privilege.

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  • Oklahoma

    There are no Oklahoma cases discussing whether the disclosure of privileged information by a reporter to an editor or other person in the same media organization, or to the reporter’s or the organization’s counsel, would constitute a waiver.  Our sense of the law in general about waiver of rights and privileges is that it would not, if the person to whom disclosure was made had a “need to know.”

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  • Oregon

    No statutory or case law addressing this issue.

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  • Pennsylvania

    Waiver of the Shield Law protections is limited only to the information “actually published or publicly disclosed . . . .” In re Taylor, 193 A.2d 181, 186 (Pa. 1963). If a source’s name is published by the journalist in connection with reported information, then the source’s identity is not protected. See Commonwealth v. Bowden, 838 A.2d 740, 749 (Pa. 2003). Publication of a source’s name therefore waives the protection of the privilege – but only to the disclosure of the identity of the source for that particular information. Similarly, if a reporter voluntarily discloses a source’s identity, the Shield Law’s protection is not implicated. See In re Cty. Investigating Grand Jury VIII, 2003, 2005 WL 3985351, at *12 (Lackawanna Cty. C.C.P. Oct. 25, 2005) (noting that Shield Law was not implicated because reporter “voluntarily disclosed the sources for the information contained” in her articles to a special prosecutor).

    If the source provided other information confidentially, the privilege can be invoked to protect the source’s identity with respect to that information. See Hatchard v. Westinghouse Broad. Co., 532 A.2d 346, 349-51 (Pa. 1987); Davis v. Glanton, 705 A.2d 879, 885 (Pa. Super. 1997).

    There is no Pennsylvania case law addressing waiver of the First Amendment reporter’s privilege by disclosure of a confidential source’s name, although the Pennsylvania Supreme Court has echoed the Third Circuit’s guidance that “it is important for courts faced with privilege questions to consider whether a reporter’s source is confidential, because the lack of a confidential source is a factor that favors production.” Commonwealth v. Bowden, 838 A.2d 740, 754 (Pa. 2003).

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  • Rhode Island

    There are no statutory provisions or case law on point. However, in Fischer v. McGowan, 585 F. Supp. 978 (D.R.I. 1984), plaintiffs sought to compel disclosure of certain unnamed sources of an allegedly libelous article in an Australian newspaper about the financial troubles of an America's Cup yacht. The author of the article, who had not been named as a defendant, claimed privilege and moved to quash. Drawing on decisions from other jurisdictions, the court found that the reporter had not waived his privileges under the shield law by disclosing some of his sources or by providing a generic description of the undisclosed sources.

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  • South Carolina

    There are no cases on the waiver issue, but if publication does not constitute waiver of the privilege, it is unlikely that disclosure of the information to an editor or attorney involved in the dissemination aspect of the news could constitute a waiver.

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  • South Dakota

    There is no pertinent case law on this issue.

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  • Tennessee

    There is no statutory or case law on this issue.

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  • Texas

    To date, there is no case law determining under what conditions the statutory privilege can be waived.

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  • Utah

    There is no statutory or case law addressing this issue.

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  • Vermont

    There are no reported Vermont cases discussing whether the disclosure of a confidential source’s name would constitute a waiver of the reporter’s privilege.  The Vermont Shield Law states that “[t]he publication or dissemination of news or information shall not constitute a waiver of the protection from compelled disclosure. . . .”  12 V.S.A. § § 1615(c).

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  • Virginia

    There is no case law in Virginia addressing whether the privilege is waivable.  The Fourth Circuit, however, has held in dicta that a reporter waives the privilege by violating a confidentiality agreement and disclosing the identity of a source to a third party.  See United States v. Sterling, 724 F.3d 482, 508-09 (4th Cir. 2013) (refusing to quash a subpoena to a reporter to testify about the source of classified information received by the reporter in a criminal case against a former CIA officer).

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  • Washington

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

    Section 4 of the shield statute provides that publication or dissemination does not waive the privilege. See RCW 5.68.010(4).

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  • West Virginia

    There is no West Virginia caselaw or statute addressing whether a journalist may be deemed to have waived the privilege. Because the privilege is constitutional in nature, it is likely the privilege may never be deemed to have been waived.

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  • Wisconsin

    Under the shield law, the privilege is not waived by the reporter's disclosure of a confidential source's name.  Wis. Stat. § 885.14(4).

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  • Wyoming

    Not applicable.

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