a. How exhaustive must search be?

The search should be exhaustive, compelling disclosure from the newsgatherer should be the end, not the beginning of the inquiry. See Hart v. Playboy Enter., Inc., 6 Media L. Rptr. (BNA) 2571 (D. Kan. 1981).  The policy underlying the privilege is “that the compelled production of a reporter’s sources or materials be a last resort because it ‘may substantially undercut the public policy favoring a free flow of information to the public that is the foundation of the privilege.’”  Johnson v. Sch. Dist. No. 1, No. 12-cv-02950-MSK-MEH, 2014 U.S. Dist. LEXIS 23620, *20-*21 (D. Colo. Feb. 25, 2014) (internal quotations and citation omitted).

Since the First Circuit does not specifically require that the moving party demonstrate that it has attempted to obtain the information by alternative means, there is no standard addressing how exhaustive a search for other means must be. However, courts will factor any search, and its extensiveness, into their consideration of the moving party’s need for the information.

When the First Circuit courts apply New Hampshire’s reporter’s privilege, the moving party must demonstrate that it has made “all reasonable efforts” to obtain the information by alternative means. Gray v. St. Martin’s Press, Inc., 221 F.3d 243, 252 (1st Cir. 2000).

As mentioned above, "[a]t the very least, a party seeking to overcome a constitutional privilege on the basis of necessity must show that it has exhausted all other available non-privileged sources for the information." In re Pan Am Corp., 161 B.R. 577, 585 (S.D.N.Y. 1993). For example, in United States v. Aponte-Vega, the defendant could have obtained the information about an investigation of DEA agents falsifying evidence from the government instead of the journalist's confidential source. 1992 U.S. Dist. Lexis 7843, 20 Med. L. Rep. 2202 (S.D.N.Y. May 29, 1992). In contrast, in Lipinski v. Skinner, this standard was met because plaintiff could not obtain information about who initially disclosed his positive HIV test to the newspaper from any other non-privileged source. 781 F. Supp. 131 (N.D.N.Y. 1991) (motion to quash denied).

While courts in the Third Circuit do not appear to have focused particular attention on the question of how exhaustive a party's search for sources other than a reporter must be, in Riley, the Court of Appeals explained that "conclusory statements fall far short of the type of specific findings of necessity which may overcome the privilege." 612 F.2d at 717.

The courts apply a reasonableness standard — the seeking party must show that the information sought “cannot be reasonably obtained by alternative means.” Penland, 922 F. Supp. at 1084. However, what constitutes a reasonably exhaustive search has not been clearly established. In Bischoff v. United States, the court found that plaintiffs had “made almost no effort” to determine independently who had made improper disclosures of tax information to a newspaper reporter. 25 Media L. Rep. 1286, 1287 (E.D. Va. 1996). Plaintiffs had only sent interrogatories to the government defendant, and the court required at the very least that plaintiffs depose the federal agents who may have been involved with the disclosures before requiring the newspaper reporter to reveal the information. Id. Likewise, in LaRouche, the Fourth Circuit noted there were still “obvious sources” plaintiff had not deposed, including a public source of one of the stories. 780 F.2d at 1137. On the other hand, in Penland, the district court said it was “satisfied” with plaintiffs’ showing even though they had failed to depose a person who may have overheard the information sought from the reporters. 922 F. Supp. at 1084.

Whether a party has satisfactorily shown that it cannot obtain the information depends on the circumstances of the case. In Lenhart, the court considered whether the subpoenaing party had satisfied its burden of attempting to obtain the identity of certain grand jurors who spoke to a reporter through other means than subpoenaing the reporter. Lenhart v. Thomas, 944 F. Supp. 525, 530 (S.D. Tex. 1996). It noted that the requirement was not satisfied in a Supreme Court case when the subpoenaing party failed to depose 65 people in an effort to obtain the information. Id. (citing In re Roche, 448 U.S. 1312 (1980)). The district court then concluded that the subpoenaing party in Lenhart had not satisfied its burden of seeking the information from other sources, because its investigation consisted of merely asking the grand jurors to confess to speaking with the press. Id.

The federal courts have not elaborated on the extent to which a subpoenaing party must exhaust alternative from other sources. Where the NLRB initiated a civil investigation of a claim of unfair labor charge against a business by subpoenaing a newspaper's advertising dept. to see if the business was responsible for a "blind" newspaper ad, the Sixth Circuit ruled that the NLRB could not overcome the newspaper's First Amendment protection because the NLRB had not tried other investigative methods first. NLRB v. Midland Daily News, 151 F.3d 472 (6th Cir. 1998).

Where a grand jury could have subpoenaed street gang members to identify the murderer of a police officer, but where a police informant refused to identify the murderer in court, the Sixth Circuit ruled that the First Amendment did not protect a television journalist who sought to avoid a grand jury subpoena of his outtakes. The outtakes allegedly showed the face of the accused murderer. In re Grand Jury Proceedings, 810 F.2d 580 (6th Cir. 1987).

Without ever defining what constitutes an "exhaustive" search, the court will generally not compel discovery unless it has been shown the information sought is unavailable from a non- journalistic source. For example, in Neal v. City of Harvey, Ill., 173 F.R.D. 231, 233-34 (N.D. Ill. 1993), plaintiff filed a Section 1983 civil rights lawsuit against various public officials for his arrest in connection with the shooting of a police officer. Defendant David Johnson sought to depose a television reporter to explore his knowledge of the statements made by Johnson and his co-defendant. In quashing the subpoena, the court found that Johnson failed to satisfy his burden to show the information he sought was unavailable from a non-journalistic source. Specifically, the court found that Johnson knew or should have known what he had or had not said to the press. If Johnson was concerned about the statements of his co-defendant or the plaintiff, Johnson was free to depose either of them. Therefore, Johnson's subpoena was quashed. See also Warzon v. Drew, 155 F.R.D. 183, 187 (E.D. Wis. 1994) (subpoena to newspaper reporter quashed when plaintiff in wrongful termination suit over her firing following her adverse commentary on county health plan could have discovered same information from a consultant to county or through public records; thus, plaintiff had not exhausted all non-journalistic sources); U.S. v. Lopez, No. 86 CR 513, 1987 WL 26051 (N.D. Ill. Nov. 30, 1987) (subpoenaing party failed to exhaust alternative non-journalistic sources where interview outtakes were sought from NBC interview where subpoenaing party was one of the interviewees).

The Fridell court found that when the Plaintiff "merely submits that interviews and depositions, such as the depositions of the two reporters [involved], failed to reveal the source for the articles," the Plaintiff failed to "demonstrate an exhaustion of all reasonable alternative means for obtaining the information." J.J.C. v. Fridell, 165 F.R.D. 513, 516 (D. Minn. 1995).

After rejecting the existence of a reporter's privilege in the grand jury context, the district court in Grand Jury Subpoena ABC analyzed the case under the three-prong test for the sake of argument.  In re Grand Jury Subpoena American Broadcasting Companies, Inc., 947 F.Supp. 1314, 1319–21 (E.D. Ark. 1996). In that case, Independent Counsel Ken Starr was seeking to discover unaired portions of a television interview with Susan McDougal. Id. at 1316–17. Under the test, the court would have found that the tape was discoverable, in part because "there is no other source for the information that is contained on the videotape and transcript" of that interview. Id. at 1321. While the court acknowledged that "other media interviews [with McDougal] . . . are available, . . . . [s]uch interviews do not . . . shed any light on the specific information that may be contained on the non-broadcast videotape and transcript" of the interview sought. Id; see also Doe v. Young, 664 F.3d 727 (8^th Cir. 2011) (noting district court ordered testimony by reporter after second subpoena, which followed additional discovery to exhaust alternative sources).

The Ninth Circuit has attempted to delineate what constitutes “exhaustion” in a number of cases. A subpoenaing party who fails to take a single deposition before serving a subpoena will not meet the exhaustion requirement. Shoen I, 5 F.3d at 1296-98 (holding that plaintiffs who failed to take a deposition before trying to penetrate the reporter’s shield did not satisfy the threshold requirement of exhaustion because they “failed to exhaust the most patently available other source”); Wright v. Fred Hutchinson Cancer Rsch. Ctr., 206 F.R.D. 679, 681 (W.D. Wash. 2002) (denying the defendants’ motion to compel because the defendants had not sought to depose the plaintiffs and therefore did not exhaust all reasonable alternative sources of the discovery sought); In re Stratosphere Corp. Secs. Litig., 183 F.R.D. 684 (D. Nev. 1999) (denying plaintiffs’ motion to compel the deposition testimony of a nonparty journalist because plaintiffs had not exhausted all other reasonable sources of information sought, had not deposed all of the defendants, and had not asked any defendant specifically about the article in question); Carushka, Inc. v. Premiere Prods., Inc., 17 Med. L. Rep. 2001, at *3 (C.D. Cal. Sep. 1, 1989) (denying motion to compel unpublished information and refusing leave to depose magazine editor because defendants had not exhausted all other means of obtaining the information); F. Marc Schaffel Prods., LLC v. TMZ Prods., Inc., No. CV-10-01306-GHK, 2010 WL 11549388, at *4 (denying motion to compel because plaintiff had not “establishe[d] that it has sought the requested information from these alternative sources, either by taking their deposition, securing a declaration, serving third-party interrogatories or making some other showing of a good faith effort to obtain discovery”); see also Condit v. Nat’l Enquirer, Inc., 289 F. Supp. 2d 1175, 1180 (E.D. Cal. 2003) (“Plaintiff is not required to depose everyone in the Justice department to locate the source, but plaintiff must make some reasonable attempt to exhaust that alternative source.”).

By contrast, a district court has held that exhaustion was met when numerous depositions were taken prior to the issuing of a subpoena. See Newton v. Nat’l Broad. Co., 109 F.R.D. 522, 527 (D. Nev. 1985) (denying plaintiff’s motion to compel disclosure of defendant’s confidential sources, because even though the court found plaintiff had effectively exhausted alternative means of learning the identity of the sources by taking numerous depositions, Nevada’s shield law prohibited disclosure).

There is no Alabama statutory or reported case law addressing how exhaustive a search for alternative sources must be.

Alaska appellate courts have not had occasion to squarely address the existence or scope of a reporter's privilege. In those trial court proceedings where the qualified constitutional reporter's privilege has been asserted, courts have recognized and applied this privilege without articulating a standard for what constitutes exhaustion.

The requesting party must identify all other sources from which he or she attempted to obtain the information sought. A.R.S. § 12-2214(A)(3).

The Arkansas Supreme Court has required a "reasonable effort" to discover the conditionally privileged information from other sources. It has not addressed the issue of an exhaustive search.

In criminal cases, a defendant may be allowed to compel the reporter’s information without conducting an exhaustive search. The California Supreme Court has held “that a universal and inflexible alternative-source requirement is inappropriate in a criminal proceeding.” Delaney v. Superior Court, 50 Cal. 3d 785, 812-13, 789 P.2d 934, 268 Cal. Rptr. 753 (1990). The trial court should consider “the type of information being sought (e.g., names of potential witnesses, documents, a reporter’s eyewitness observations), the quality of the alternative source, and the practicality of obtaining the information from the alternative source.” Id. In Delaney, the California Supreme Court found that the reporters were the only disinterested witnesses to the search at issue in the case, and consequently “that there was no meaningful alternative source for the reporters’ testimony.” Id. at 815-16.

In civil cases, a more demanding search generally is required before a court may conclude that the subpoenaing party has exhausted alternative sources. The California Supreme Court held in Mitchell v. Superior Court, 37 Cal. 3d 268, 690 P.2d 625, 208 Cal. Rptr. 152 (1984), that “discovery should be denied unless the plaintiff has exhausted all alternative sources of obtaining the needed information.” Id. at 282. However, in Delaney, the court distinguished Mitchell on the grounds that the source there was confidential. 50 Cal. 3d at 811. The Delaney Court asserted that “[w]here the information is shown to be not confidential or sensitive, the primary basis for the requirement is not present and imposing a rigid requirement would be to sustain a rule without a reason.” 50 Cal. 3d at 811-12.

The party must prove it has made "substantial efforts" to obtain the information. Id. "[B]ald assertions that the information cannot be obtained through alternative sources cannot sustain a court's order requiring disclosure by a newsperson asserting the privilege." Id. See also Henderson, 879 P.2d at 393 (newsperson cannot be compelled to disclose information because plaintiff had not sought information about a helicopter's flight path from public aviation authorities and because other witnesses had provided the information sought).

There is no Connecticut case law on this topic.

In the D.C. Circuit, exhaustion requires that all “reasonable” sources of evidence be tapped.  Lee v. Dep’t of Justice, 287 F. Supp. 2d 15, 20-23 (D.D.C 2003) (plaintiff demonstrated exhaustion of alternative sources where he issued six document requests, one set of interrogatories, four sets of requests for admissions, and a total of 20 depositions).  There is no specific number of depositions necessary to create exhaustion, Lee v. Dep’t of Justice, 413 F.3d 53, 61 (D.C. Cir. 2005), though the D.C. Circuit has suggested that as many as 60 depositions may not suffice, Carey v. Hume, 492 F. 2d 631 (D.C. Cir. 1974); see also Zerilli v. Smith, 656 F.2d at 724 (noting that although limits to the obligation to pursue alternative sources exist, the exhaustion obligation is “clearly very substantial”).  The number of depositions necessary for exhaustion must be determined on a case-by-case basis.  Lee, 413 F.3d at 61.  It is not necessary to depose every individual who could conceivably identify the source.  Id.

The circumstances of a particular case will determine how exhaustive a search must be performed. For instance, in State v. Rogers the Superior Court found that sufficient efforts had been performed in a criminal case where the State had only found out about the existence of the information six days prior to trial and had tracked down another witness to the information. State v. Rogers, 820 A.2d 1171, 1181-82 (Del. Super. 2003). The Court noted, however, that under different circumstances this search might not have been sufficient. Id. at 1181. By contrast, in Fuester v. Conrail the Superior Court found the party's efforts to be insufficient where the party had access to the information from another source. Fuester v. Conrail, 22 Media L. Rep. (BNA) 2376 (Del. Super. 1994).

No cases decided under the D.C. shield law address this issue.  Case law suggests that the criteria for applying the Free Flow of Information Act’s privilege closely tracks the First Amendment’s protections.  Grunseth v. Marriott Corp., 868 F. Supp. 333, 335-36 (D.D.C. 1994).  Exhaustion case law from the D.C. federal courts may therefore be persuasive.

In the D.C. Circuit, exhaustion requires that all “reasonable” sources of evidence be tapped.  Lee v. Dep’t of Justice, 287 F. Supp. 2d 15, 20-23 (D.D.C 2003) (plaintiff demonstrated exhaustion of alternative sources where he issued six document requests, one set of interrogatories, four sets of requests for admissions, and a total of 20 depositions).  There is no specific number of depositions necessary to create exhaustion, Lee v. Dep’t of Justice, 413 F.3d 53, 61 (D.C. Cir. 2005), though the D.C. Circuit has suggested that as many as 60 depositions may not suffice.  Carey v. Hume, 492 F. 2d 631 (D.C. Cir. 1974); see also Zerilli v. Smith, 656 F.2d at 724 (noting that although limits to the obligation to pursue alternative sources exist, the exhaustion obligation is “clearly very substantial”).  The number of depositions necessary for exhaustion must be determined on a case-by-case basis.  Lee, 413 F.3d at 61.  It is not necessary to depose every individual who could conceivably identify the source.  Id.

Available sources generally must be deposed or at least interviewed before the alternative sources prong of the privilege has been overcome, even if that involves hundreds of depositions or interviews. See, e.g., Overstreet v. Neighbor, 9 Media L. Rep. 2255, 2256 (Fla. 13th Cir. Ct. Sept. 13, 1983) (requiring exhaustion of at least 117 individuals to defeat common law privilege); McCarty v. Bankers Ins. Co., 195 F.R.D. 39 (N.D. Fla. 1998) (exhaustion of all alternative sources must be shown). Simply put, when possible alternative witnesses exist, compelled disclosure of news gathering information is inappropriate. See, e.g., Smoliak v. Greyhound Lines, Inc., 33 Media L. Rep. 2452 (N.D. Fla. 2005) (applying Florida law); Green v. Off. of the Sheriff’s Off., Consol. City of Jacksonville, 31 Media L. Rep. 1756 (M.D. Fla. 2002) (applying Florida law); Muhammad v. State, 132 So. 3d 176, 190 (Fla. 2013); State v. Davis, 720 So. 2d 220, 228 (Fla. 1998); WTVJ-NBC 6 v. Shehadeh, 56 So. 3d 104 (Fla. 3d DCA 2011); Gadsden Cty. Times, Inc. v. Horne, 426 So. 2d 1234 (Fla. 1st DCA 1983); State v. Trepal, 24 Media L. Rep. 2595, 2598 (Fla. 10th Cir. Ct. Aug. 19, 1996). When substantially similar information can be obtained from a source other than the journalist, the journalist’s privilege will not be overcome. See, e.g., State v. Smith, 29 Media L. Rep. 2438, 2439 (Fla. 12th Cir. Ct. March 16, 2001) (substantially similar information in letter in court file precluded finding that information was not available from alternative sources).

There must be a compelling showing that no other source for the information exists. See, e.g., In re Paul, 270 Ga. 680, 687, 513 S.E. 2d 219, 224 (1999) (“The state cannot obtain the identity of confidential sources or information from newspapers under the second prong of the test without first exerting an effort to obtain the same information from county and city employees.”); Stripling v. State, 261 Ga. 1, 8-9, 401 S.E. 2d 500, 507 (1991) (affirming trial court's protection of reporter's confidential sources under the privilege in a death penalty case where the “defense team made no effort to contact” fewer than a dozen former sheriff's department employees who could have been the reporter's sources).

There are no reported cases.

There is no indication in the Idaho cases as to how “exhaustive” a search must be conducted in order to demonstrate the absence of alternative sources for the information sought.   But, at least one trial court has granted the media’s motion to quash given a showing that the party seeking such information had not searched other, readily available sources of the same information.  See Ko v. Zilog, Case No. 94-0123-2-MHW, Docket No. 979, Order (dated March 26, 1997).

The legislature intended to allow access to privileged information only as a last resort. As such, in order to gain access to potentially privileged information, the Statute requires a petitioner to prove that it has exhausted all other available sources. 735 ILCS 8-907(2). Illinois courts have held that “available sources” as stated in the Statute means those sources that are identified or known, or those sources that are likely to become identified or known as a result of a thorough and comprehensive investigation. See, e.g., In re Arya, 266 Ill. App. 3d 848, 589 N.E.2d 832 (1992).

 

The exhaustion of alternative sources requirement does not require the State, in a criminal case, to “conduct[] an undercover investigation or us[e] informants in order to obtain evidence from witnesses who do not wish to speak to the police . . . law enforcement procedures or methods of investigation do not constitute sources of information; instead, these methods produce sources of information.” Id. at 859, 589 N.E.2d at 839.  On the other hand, the court held the State had to “satisfy the court that its investigation has been sufficiently thorough and comprehensive that further efforts to obtain the sought-after information would not likely be successful.  It is not sufficient investigation for the State to merely assert that its investigation has not revealed the information sought.” Id. at 861, 589 N.E.2d at 840 (reversing divestiture order where record insufficient to support exhaustion finding); In re Special Grand Jury Investigation, 104 Ill. 2d 419, 428–29, 472 N.E.2d 450, 454 (1984) (other sources of the information were potentially available and had not yet been exhausted; more than a showing of inconvenience to the investigator is required before a reporter can be compelled to disclose his sources).

There is no statutory or case law on this issue.

Courts have not adopted a standard for what constitutes exhaustion. In Lamberto, the Court stated that seeking information from a reporter "should be the end, and not the beginning of the inquiry." 326 N.W.2d at 308 (quoting Carey v. Hume, 492 F.2d 631, 638 (D.C. Cir. 1974)). In Waterloo/Cedar Falls Courier, the Court found the party seeking to overcome the reporter’s privilege failed to satisfy the exhaustion element:

"Moreover, the College knows precisely which trustees and other employees were present at the meetings. There remain for the College many unexplored avenues of discovery for the sought after material. The College has not attempted to find out what was said and what occurred at the meetings from anyone other than the Courier's editors. The College must exhaust these resources before going after the editors’ privileged information."

Waterloo/Cedar Falls Courier v. Hawkeye Cmty. Coll., 646 N.W.2d 97, 104 (Iowa 2002).

In state court, the movant is obliged to show that the information in issue “could not, after a showing of reasonable effort, be obtained by readily available alternative means.”  K.S.A. 60-482(a)(2).  In federal court, there have been unpublished decisions rendered by United States Magistrates in Kansas holding that a litigant has demonstrated unavailability, but these have not discussed where the bar will be set in terms of how far the litigant must go in seeking other means of access to the information.  See, e.g., United States v. Foote, 2002 U.S. Dist. LEXIS 14818, 30 Med. L. Rep. 2469 (D. Kan. 2002).

Kentucky courts have not directly addressed this issue. In Lexington Herald-Leader Co. v. Beard, 690 S.W.2d 374, 375 (Ky. 1984), the Kentucky Supreme Court approved of a trial court requiring the subpoenaing party to exhaust other methods of discovery which included depositions and extensive interrogatories before addressing the subpoena to the news reporters.

There is no statutory language or Louisiana case law addressing this issue.

Maine's courts have not addressed this issue.

Maryland case law has not addressed this issue.

There is no case law on this issue.

While there has been little appellate-level case law on the extent of the thoroughness that makes a search exhaustive, courts require the party seeking information to make a complete effort to obtain it elsewhere prior to seeking a subpoena. For example, in McArdle, the court found that the party seeking disclosure must demonstrate that they have “exhausted every reasonable alternative source of information.” 7 Media L. Rep. at 2295 (emphasis added) (citing Zerilli v. Smith, 656 F.2d 705, 713 (D.C. Cir. 1981)). Courts have recognized that such a search “can be a weighty obligation,” but “assertions that certain alternatives would be ‘timeconsuming [sic], costly, and unproductive’ will not be accepted by the court.” Id. (citing Zerilli, 656 F.2d at 715).

In Grunseth v. Marriott Corp., relying in part upon Minnesota law, the court quashed a subpoena to compel a reporter to disclose a source because the plaintiff had not "demonstrated, other than in conclusory language, that he has exhausted all other reasonable sources for obtaining the information." 868 F. Supp. 333, 335 (D.D.C. 1994).

There is no statutory or case law addressing this issue.

There is no statutory or case law addressing this issue.

If the statutory privilege applies, exhaustion of other sources is not an issue.

No reported cases.

In light of the absolute nature of the privilege, Nevada cases have not discussed any standards for exhaustion.

Other than as discussed above, there has been no discussion in the case law as to what constitutes "exhaustion" for purposes of satisfying the first prong of the Siel test.

The criminal defendant must show, by a preponderance of the evidence, that the information or testimony "could not be secured from any less intrusive source." If the substantially similar information can be obtained from another source, the material is not unavailable.  Courts will search exhaustively for an alternative source.  State v. Boiardo, 83 N.J. 350 (1980).

Rule 11-514 demands that the subpoenaing party conduct a “reasonably” exhaustive search for alternatives, see Rule 11-514(C)(2) NMRA, but no case law exists to illustrate what this means in practice.

While courts have not delineated a clear standard for proving "exhaustion," merely asserting that a search has been done will not suffice. The party seeking disclosure "has an obligation to demonstrate that it has first endeavored to obtain this information by other means instead of directly intruding upon the self-imposed confidentiality of those who gather news." Greenleigh Assoc., Inc. v. N.Y. Post Corp., 79 A.D.2d 588, 434 N.Y.S.2d 388, 389 (1st Dep't 1980) (citing Silkwood v. Kerr McGee Corp., 563 F.2d 433 (10th Cir 1977)); see also, Yellon v. Lambert, 29 Med. L. Rptr. 1308, 1313, aff’d, 289 A.D.2d 486, 735 N.Y.S.2d 592 (2d Dep't 2001) (plaintiff "has an obligation to demonstrate that he has first endeavored to obtain this information by other means, and has been unsuccessful"); In re CBS Inc. (Vacco), 232 A.D.2d 291 (N.Y. App. Div. 1st Dep’t 1996); Flynn v. NYP Holdings Inc., 652 N.Y.S.2d 833, 835 (N.Y. App. Div. 3rd Dep’t 1997) (quashing subpoena in part because plaintiff "has not detailed any efforts made to obtain the requested documents or the information contained therein," and had thus not satisfied the third prong of the test).

There are no reported appellate cases under the new shield law that attempt to define how exhaustive a search the requesting party must undertake to find the material through alternative sources. At a minimum, it is clear that the requesting party must make a showing of efforts to obtain the information. For example, in State v. Wiggins, 29 Media L. Rep. 1597 (N.C. Superior Ct. 2001), the trial court quashed a subpoena issued by the defendant in a highly-publicized capital murder trial (a local professional football player, Rae Curruth, was accused of killing his pregnant girlfriend) to a newspaper reporter seeking testimony and copies of correspondence with a witness in the trial where the defendant made no showing that the witness would not voluntarily testify and had not even attempted to subpoena the witness. One trial court applying the shield law has required a demonstration of exhaustion of all possible sources of information. See Higgins v. Young, 29 Media L. Rep. 2528 (N.C. Superior Ct. 2001). In Higgins, the trial court quashed a subpoena issued by the defendant in a civil case to a newspaper reporter seeking testimony concerning three articles published by the reporter where the defendant had not demonstrated "that the information has not been unsuccessfully sought from all other available sources, and the Court is without knowledge whether this information could have been obtained from other sources."

An "exhaustion" requirement was applied by several trial courts prior to the adoption of the shield law. See, e.g., Locklear v. Waccamaw Siouan Dev. Ass'n, 12 Media L. Rep. 2391, 2392 (N.C. Superior Ct. 1986); Johnson v. Skurow, 10 Med. L. Rep. 2463 (N.C. Superior Ct. 1984). In Locklear, a reporter was subpoenaed by the plaintiff in a civil case to give testimony for the purpose of impeaching the chairman of the defendant's board of directors. In quashing the subpoena, the court held that the plaintiff had to demonstrate that it had sought the information from all alternate sources, such as other members of the board. The court stated that the requested information must not be available from any other source not protected by the First Amendment of the United States Constitution or Article I, Section 14 of the North Carolina Constitution, and "all other potential sources of such information, and all other means of obtaining information from such sources must be exhausted."

In a federal court case, a federal district court required a newspaper reporter to release both confidential and non-confidential information obtained as a result of the reporter's investigative efforts, but only after the plaintiff presented evidence that she had deposed all known potential witnesses, that independent investigations of the city police and FBI and state SBI had not uncovered the identity of the reporter's source, and that she herself had investigated all potential sources of the information. Miller v. Mecklenburg County, 602 F. Supp. 675 (W.D.N.C. 1985) and 606 F. Supp. 488 (W.D.N.C. 1985), aff'd, 813 F.2d 402 (4th Cir. 1986) (not addressing the reporter's privilege issue), cert. denied, 479 U.S. 1100 (1987).

The North Dakota Supreme Court has not determined whether the search must be exhaustive, nor has it applied any standards by which one can measure "exhaustion."

No Oklahoma decision has explored the extent to which a party seeking disclosure must exhaust alternative sources, other than to parrot the statutory language in Taylor v. Miskovsky that the proof that the information “could not with due diligence be obtained by alternate means” must be clear and convincing.

No statutory or case law addressing this issue.

When a reporter asserts the First Amendment privilege, the party seeking disclosure must establish that it has “exhausted other means of obtaining the information.” Riley v. City of Chester, 612 F.2d 708, 717 (3d Cir. 1979). When alternative sources for the information exist, the party must show that it has pursued each of those alternatives. See, e.g., United States v. Criden, 633 F.2d 346, 358 (3d Cir. 1980); McMenamin v. Tartaglione, 590 A.2d 802, 811 (Pa. Commw. 1991), aff’d without op., 590 A.2d 753 (Pa. 1991). A party that fails to establish that it has exhausted alternative sources will not overcome the privilege unless it can show that “it would be futile to seek [the information] elsewhere.” Davis v. Glanton, 705 A.2d 879, 885-86 (Pa. Super. 1997). In Bowden, the Pennsylvania Supreme Court ruled that no alternative source existed because there were no other persons present when the reporters spoke with the criminal defendant whose self-defense claim was at issue. Commonwealth v. Bowden, 838 A.2d 740, 756 (Pa. 2003). The court did not require the prosecution to rule out other sources of the statements made by the defendant, reasoning that the statements to the subpoenaed reporters were, “[b]y their very nature, . . . not obtainable from any other source.” Id.

Although there are no specific statutes or case law on point, it is presumed that all searches are made in good faith.

No appellate court has dealt with this provision of the South Carolina statute, but reasonable probably means some logical, but unsuccessful effort to identify another source besides the reporter.

Although Hopewell court said "exhaust all alternative methods," as a practical matter the scope of the search is uncertain.

It is not clear from Tennessee case law how exhaustive the search for alternative sources of information must be. However, the subpoenaing party clearly must attempt to depose or question all obvious alternative sources before a court will divest the reporter's privilege. See Moore v. Domino's Pizza, L.L.C., 199 F.R.D. 598 (W.D. Tenn. 2000); State ex rel. Gerbitz v. Curriden, 738 S.W.2d 192 (Tenn. 1987).

Under the civil and criminal statute, the subpoenaing party must generally make a clear and specific showing that all reasonable efforts have been exhausted to obtain the information from alternative sources.  Tex. Civ. Prac. & Rem. Code 22.024; Tex. Code Crim. Prac. art. 38.11 §5.  In subpoenas seeking information concerning confidential sources, only a clear and specific showing that reasonable efforts have been exhausted is required.  Tex. Code Crim. Prac. art. 38.11 §4.  But, due to the recent adoption of the statute, there are no reported decisions yet on what constitutes “exhaustion” for purposes of the statute. Pre-statute, there was not much law detailing the level of exhaustion required.

There is no statutory or case law addressing this issue.

There are no reported Vermont cases articulating how exhaustive a search for other information must be before it is found that the information “could not, with due diligence, be obtained by alternative means.”  12 V.S.A. § 1615(b)(2)(A)(ii).  If the information sought is duplicative of other testimony or duplicative evidence on the same issue, it is unlikely that the standard will be satisfied.

The case law does not discuss what constitutes an exhaustive search, although at least one court found compelling disclosure to be premature at the outset of discovery. Philip Morris Cos. v. Am. Broad. Co., 36 Va. Cir. 1 (Richmond 1994).

For common law privilege claims, Washington's case law has not yet squarely addressed this issue, other than to note that "the test we adopt here is one of reasonableness, keeping in mind the competing values to be served and balanced." Senear, 97 Wn.2d at 156 (confidential source case); see also Section VI.B.2 (Material unavailable from other sources) above.

West Virginia courts have not addressed expressly how exhaustive a subpoenaing party's search for other available sources must be and thus have not formulated any standards for what constitutes "exhaustion." Nevertheless, an exhaustion requirement appears to be implicit within the subpoenaing party’s burden under Hudok to make a clear and specific showing that the information is not obtainable from other available sources.  C.f. State ex rel. Lincoln Journal, Inc. v. Hustead, 228 W. Va. 17, 25, 716 S.E.2d 507, 515 (2011) (granting writ prohibiting lower court from compelling disclosure in absence of specific and complete Hudok analysis and declining to rule on respondent’s argument that exhaustion of all alternative remedies is not required prior to compelling disclosure).

Not applicable.