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  • 1st Circuit

    In United States v. LaRouche Campaign, 841 F.2d 1176 (1st Cir. 1988), NBC appealed a ruling from the district court of Massachusetts ordering NBC to produce outtakes of an interview with a key witness for in camera review. NBC argued that the district court should not have ordered in camera review because the defendants had not shown that the subpoenaed material was sufficiently evidentiary. Id. Interpreting Fed. R. Crim. P. 17(c), the First Circuit held that although NBC had raised First Amendment concerns, the balance fell in favor of the defendants because the information was not confidential. Id. at 1180.

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  • 2nd Circuit

    A court is not legally required to hold an in camera review of materials sought. Many judges consider in camera review necessary to determine if the information is privileged. If the party seeking to quash is unable to adequately explain why the materials should be protected without disclosing confidential information, then in camera review may be essential to an informed ruling. See N.Y. Times Co. v. Gonzales, 459 F.3d 160, 171 (2d Cir. 2006).

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  • 3rd Circuit

    Courts in the Third Circuit are not required as a matter of course to conduct an in camera (that is, private) review of the subpoenaed material before deciding whether to quash a subpoena. In practice, however, a court will on occasion seek do so in the course of applying the three-part test for whether the First Amendment-based privilege can be overcome. A court properly can only compel in camera review if the party issuing the subpoena first makes a threshold showing that the information sought is unavailable elsewhere and consists of relevant evidentiary material. See, e.g., Cuthbertson I, 630 F.2d at 148-49; Kohn, Nast & Graf, P.C., 853 F. Supp. at 149.  This threshold requirement is applicable in both criminal and civil cases. Kohn, Nast & Graf, P.C., 853 F. Supp. at 149 n.6.

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  • 4th Circuit

    The federal rules and the local rules of the district courts in the Fourth Circuit do not direct the court to conduct an in camera review of materials or interview with the reporter prior to deciding on a motion to quash, and the case law indicates judges in the Fourth Circuit rarely conduct such reviews or interviews before ruling on a motion to quash. In camera reviews are apparently used more frequently for other purposes, for example, in deciding on a motion to restrain publication, United States v. King, 194 F.R.D. 569, 572 (E.D. Va. 2000), or as a safeguard after a media entity is ordered to comply with a subpoena, Food Lion Inc. v. Capital Cities/ABC, Inc., 951 F. Supp. 1211, 1216, 25 Media L. Rep. 1182 (M.D.N.C. 1996) (Judge agrees to sit in on depositions and, if defendants feel an answer should be privileged, hear answer out of presence of plaintiff’s counsel and determine whether privilege should apply).

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  • 5th Circuit

    Although there is no specific requirement that judges conduct an in camera review of materials prior to deciding a motion to quash, United States v. Arditti, 955 F.2d 331, 345 (5th Cir. 1992), courts often do. See, e.g., Miller v. Transamerican Press, Inc., 621 F.2d 721, 723, as modified 628 F.2d 932 (5th Cir. 1980); In re Selcraig, 705 F.2d 789, 795 (5th Cir. 1983). In Arditti, the court held that the trial judge did not abuse its discretion when it declined to review documents subpoenaed by the IRS before determining that they were not privileged. Arditti, 955 F.2d at 345 (5th Cir. 1992). However, in Selcraig, the trial court endeavored to elicit the subpoenaed testimony in camera prior to revealing the information to the plaintiff's lawyers in order to determine whether it was relevant to the plaintiff's claim. In re Selcraig, 705 F.2d at 794-95. The court also undertook an in camera inspection in Miller before concluding that certain documents and summaries had to be produced to the plaintiff. Miller, 621 F.2d at 723.

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  • 6th Circuit

    Federal law does not require federal courts to conduct an in camera inspection of subpoenaed materials claimed to be privileged. Where information subject to a subpoena is withheld because it is claimed to be privileged (such as the reporter's privilege), the reporter should assert the First Amendment reporter's privilege expressly in any written objection delivered to the litigant or attorney responsible for the subpoena and in any papers filed with the court. Depending on the nature of the contested materials, the reporter may be required to put together what is called a "privilege log." The privilege log is supposed to describe the nature of the assertedly privileged information in such a way as to "enable the demanding party to contest the claim" of privilege. The privilege log's descriptions would be brief, but include facts that are relevant to the claim of privilege, such as whether confidentiality was promised, or whether the record was generated by the journalist pursuant to his newsgathering duties. See Fed.R.Civ. P. 45(d)(2).

    Federal law does not preclude the subpoenaed person from asking for an in camera inspection of the contested materials by the court. If the court orders an in camera inspection, and the journalist does not desire one (for example, to protect the identity of a confidential source), the journalist should object.

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  • 7th Circuit

    No cases suggest that an in camera review is required. Such decisions are left to the discretion of the trial court. United States v. Phillips, 854 F.2d 273, 277 (7th Cir. 1988). Nevertheless, many districts courts have engaged in such reviews. United States v. Bingham, 765 F. Supp. 954, 956 (N.D. Ill. 1991) (in camera review of video outtakes for purposes of reporters' privilege); Warnell v. Ford Motor Co., 183 F.R.D. 624, 625 (N.D. Ill. 1998) (in camera review of videotape for purposes of reporters' privilege).  See also Webb v. CBS Broad., Inc., 2011 U.S. Dist. LEXIS 3458, at *32 (N.D. Ill Jan. 13, 2011) (in camera review of reporter’s notes to determine scope of discovery).

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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 whether, prior to deciding a motion to quash, the court must conduct an in camera review of the subpoenaed material or interview the subpoenaed reporter.

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  • Alaska

    Alaska appellate courts have not had occasion to squarely address the existence or scope of a reporter's privilege, and the shield law does not direct a court to conduct an in camera review of materials or interview with the reporter prior to deciding a motion to quash, nor has there been a practice of doing so in the trial courts that have addressed privilege claims.

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  • Arizona

    No statutory or case law addresses the issue of in camera review in the context of moving to quash a media subpoena. In Cooper Tire, 218 Ariz. at 55-56, 178 P.3d at 1179-80, the Court of Appeals noted the lower court’s use of in camera review to decide an issue under the Media Shield Law but did not address the issue specifically. In other contexts, Arizona courts have endorsed in camera review as an efficient means of resolving discovery and other disputes. See, e.g., Carlson v. Pima County, 141 Ariz. 487, 491, 687 P.2d 1242, 1246 (1984) (courts may review in camera public records that government officials have refused to disclose under A.R.S. § 39-121 et seq. (the "Arizona Public Records Law")).

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  • Arkansas

    There is no statute, court rule or case law that directs a court to review material in camera before ruling on a motion to quash.

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  • California

    No statute mandates that the trial court conduct an in camera review of the materials before determining whether they should be released, and the Supreme Court has rejected the idea that in camera review is required in every case. See Delaney v. Superior Court, 50 Cal. 3d 785, 813,789 P.2d 934, 268 Cal. Rptr. 753 (1990). However, California case law does “encourage parties to allow disputed materials to be examined by the trial court in camera” as a possible means of resolution. Sci-Sacramento, Inc. v. Superior Court, 54 Cal. App. 4th 654, 662, 62 Cal. Rptr. 2d 868 (1997). Moreover, the California Supreme Court has concluded that “[w]hen a criminal defendant [] seeks confidential or sensitive information, the practical need for an in camera hearing is obvious.” Delaney, 50 Cal. 3d at 814. The Court held that if a trial court determines that “a newsperson’s claim of confidentiality or sensitivity is colorable,” “it must then receive the newsperson’s testimony in camera.” Id. Finally, for a defendant to challenge an in camera proceeding, he must show how the in camera proceeding negatively influenced his ability to present a defense or receive assistance from counsel; an unsubstantiated claim is insufficient. People v. Ramos, 34 Cal. 4th 494, 527, 101 P.3d 478, 21 Cal. Rptr. 3d 575 (2004).

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  • Colorado

    There are no requirements that the court conduct an in camera review of the materials before ruling on a Motion to Quash. Nor are there any requirements that the court conduct an interview of the reporter.

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  • Connecticut

    Neither the Sheild Law nor the case law directs a court to conduct an in camera review of materials or interview with the reporter prior to deciding a motion to quash. Judges have, of course, done the former to determine, e.g., whether the documents, film, negatives and the like constitute unique pieces of relevant data not obtainable from non-media sources.

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  • D.C. Cir.

    In the grand jury context, the D.C. Circuit has permitted in camera, ex parte review of secret evidentiary submissions in support of enforcement of subpoenas.  In re Miller, 397 F.3d 964, 973-74 (D.C. Cir. 2005), opinion superseded by 438 F.3d 1141 (D.C. Cir. 2006).  There, the D.C. Circuit rejected the reporters’ argument that denial of access to this evidence constituted violation of their due process rights because of well-established authority that “a district court can ensure [grand jury] secrecy is protected by provisions for sealed, or when necessary ex parte, filings.”  Id. at 973 (citing In re Grand Jury, 121 F.3d 729, 757 (D.C. Cir. 1997)).  Judge Tatel further redacted a substantial portion of his concurring opinion to preserve grand jury secrecy and to protect classified information, though the court later unsealed portions of the opinion in which the information was no longer secret.

    No case law states that in camera review is required before a court may compel production of information sought from a reporter, and case law regarding other privileges suggests that in camera review is not always necessary.  E.g., Linder v. NSA, 94 F.3d 693, 696-97 (D.C. Cir. 1996) (rejecting argument that the district court should have examined sample documents in camera before ruling on the motion to quash, and stating that a “court may rely on affidavits in lieu of an in camera review when they are sufficiently detailed, as they were in this case”).  The decision whether to perform in camera review is left to the discretion of the court.  Kay v. FCC, 976 F. Supp. 23, 34 (D.D.C. 1997) (denying plaintiff’s motion for in camera review and granting defendant’s motion to quash).  However, case law also suggests that the court may proceed to review the requested information in camera if the person seeking the information has made an adequate showing of need.  E.g., In re Sealed Case, 121 F.3d 729, 745 (D.C. Cir. 1997).

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  • District of Columbia

    Case law suggests that a court has discretion to order in camera review of the information at issue, and that the court generally will not exercise such discretion unless it is necessary to review the information to assess a claim of privilege.  E.g., Prentice v. McPhilemy, 27 Med. L. Rptr. 2377, 2388 (in camera review not necessary where documents undoubtedly were protected under the D.C. shield law, and premature for other documents where the person withholding the information had not indicated the specific legal basis for doing so); see also Carter v. United States, 614 A.2d 913, 916 (D.C. 1992) (noting, in the context of a different privilege, that “the trial court has discretion to conduct an in camera hearing in the course of deciding whether to require disclosure,” and holding that the trial court “should require a showing of a factual basis adequate to support” request for in camera review).

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  • Florida

    The law does not require a court to conduct an in camera review of materials or examination of the reporter, and the shield law does not contemplate in camera review as an option. The judge, in his or her discretion, may require an in camera review of the journalist's materials. See Kidwell v. State, 730 So. 2d 670, 671 (Fla. 1998). In camera review, however, should be not be the option of first resort, as even in camera inspection impinges upon the privilege by requiring the journalist to turn over information and materials.

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  • Georgia

    Georgia law does not direct a court to conduct an in camera review of materials or interview a reporter prior to deciding a motion to quash. Moreover, as a matter of common practice, such review is generally not undertaken by Georgia courts.

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  • Hawaii

    The decision whether to conduct an in camera review of materials or information requested for production in a subpoena is within the discretion of the court.

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  • Idaho

    There is no requirement that a court conduct an in-camera review.

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  • Illinois

    Although there does not appear to be a mandatory law in Illinois directing a court to conduct an in camera review of materials prior to ruling on a motion to quash, some courts have stated that an in camera review of the material in question may be appropriate if an issue arises as to the appropriate scope of the disclosure order. See, e.g., In re Arya, 266 Ill. App. 3d 848, 862, 589 N.E.2d 832, 841 (1992). In such instances, the trial court should scrutinize the material in camera to ensure that its production does not abridge the protections the legislature afforded source information through the Statute. Id., 589 N.E.2d at 841. For example, in United States v. Bingham, the court discovered, during an in camera review, that numerous statements in the witness’s interview outtakes contradicted the witness’s direct examination testimony. 765 F. Supp. 954, 956 (N.D. Ill. 1991). The court held that the defendants were seeking highly relevant prior inconsistent statements by the witness when trying to divest the reporter of the privilege. Id. at 957.

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  • Indiana

    The Indiana shield law does not require a court to conduct an in camera review of materials or prior to deciding a motion to quash. See Ind. Code § 34-46-4-2.

    In Matter of WTHR-TV (State v. Cline), 693 N.E.2d 1 (Ind. 1998), the court said, with respect to in camera review:

    "In camera review to determine materiality or the validity of any objections to production is generally within the trial court's discretion . . . . [M]ateriality need not be shown prior to disclosure where the relevance of the item is self-evident or the precise nature of the information is unknown. However, in that circumstance, the discovery rules' prohibition on fishing expeditions and burdensome requests would effectively be lost if in camera review could be obtained without a showing of at least possible relevance . . . . Accordingly, where materiality is challenged or is unknown, a showing of at least “potential materiality” is generally required to obtain in camera review of disputed items."

    Id. at 8 (internal citations omitted); see also WTHR-TV v. Milam, 690 N.E.2d 1174, 1176 (Ind. 1998) (holding that the party moving for discovery must “offer a theory of ‘potential materiality’”).

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  • Iowa

    An in camera inspection of materials must be conducted prior to disclosure to the party seeking the privileged information. Lamberto v. Bown, 326 N.W.2d 305, 8 Med. L. Rptr. 2525 (Iowa 1982). In Lamberto, the Court noted that an in camera inspection of materials partially destroys the reporter's privilege; therefore, prior to an in camera inspection, the judge must make a threshold showing as to the compelling need of the information and whether other, less obtrusive, means of discovery have been exhausted. 326 N.W.2d at 308-09. If the court determines that the requesting party has a substantial need for the information and has exhausted other means of discovery an in camera examination of the evidence should be ordered. Id. at 309. The in camera inspection will be to determine if the evidence is necessary and is likely to be admissible, thereby imposing another barrier to disclosure to the requesting party. See also Nelle, 2017 WL 7049237, at * 2 (stating that the Court should “examine the material in camera to determine if the evidence is” necessary).

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  • Kansas

    At K.S.A. 60-483, the Kansas shield law provides that:

    The party claiming the privilege and the party seeking to compel disclosure shall be entitled to a hearing. After such hearing, the court may conduct an in camera inspection to determine if such disclosure is admissible. If the court then specifically finds that such disclosure is admissible and that its probative value outweighs any harm to the free dissemination of information to the public through the activities of journalists, then the court shall direct production of such disclosure and such disclosure only.

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  • Kentucky

    Kentucky law does not require an in camera review or interview with the reporter prior to deciding a motion to quash, but trial courts sometimes do so.

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  • Louisiana

    The Louisiana reporter's privilege statute does not require in camera review.

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  • Maine

    In criminal cases, in camera of materials that may be privileged is mandatory.  See M.R.Crim.P. 17A(f).

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  • Maryland

    There is no statute or case law requiring the court to conduct an in camera review of materials or interview with the reporter prior to deciding on a motion to quash.

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  • Massachusetts

    The law does not direct a court to conduct an in camera review of materials or interview with the reporter prior to deciding on a motion to quash.

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  • Michigan

    There is no statutory or other requirement for in camera review. In camera review raises other problems. But to some extent the problems depend upon the circumstances. If the subpoena is seeking confidential information, even the Court should not be allowed to see the material. Even the attorney representing the news organization may not want to see the material to avoid complications if the material is confidential.

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  • Minnesota

    The language of Bauer and Turner appears to leave some room for discretion by the district court.

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  • Mississippi

    There is no statutory or case law addressing this issue.

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  • Montana

    Should the reporter establish that the subpoena is barred under the Montana Media Confidentiality Act, the privilege is absolute and any weighing of factors in an in camera review is unnecessary. In the case of a constitutional challenge to the subpoena, there will be a weighing of factors and likely such an in camera review.

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  • Nebraska

    Not required before issuance. Can be requested by party resisting subpoena by filing for a protective order.

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  • New Hampshire

    There is no requirement that a court conduct an in camera review. However, in State v. Siel, 122 N.H. 254 (1982), the Court held that, after the trial judge "is satisfied on the facts then before him that the privilege should fail, the trial judge may also hold an in camera hearing with the reporters and, if necessary, with the source before releasing the information to the defendant." In camera review of sealed documents is common in proceedings to obtain access to those documents. See Petition of Keene Sentinel, 136 N.H. 121 (1992).

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  • New Jersey

    No in camera review occurs prior to deciding the motion. The newsperson is not required to make any disclosure, to the court or otherwise, to successfully assert the privilege. In fact the New Jersey Supreme Court has held that an in camera disclosure "represents precisely the same threat to the interests protected by the privilege as disclosure to counsel or to the world." State v. Boirdo, 82 N.J. 446 (1980).

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  • New Mexico

    Rule 11-514 provides that “[i]f possible,” the court will determine whether the subpoenaing party has successfully overcome the qualified reporter’s privilege “without requiring disclosure of the confidential source or information sought to be protected by the privilege.” But “[i]f it is not possible for the court to make [that] determination ... without the court knowing the confidential source or information sought to be protected, the court may issue an order requiring disclosure to the court alone, in camera.” Rule 11-514(D) NMRA.

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  • North Carolina

    The trial judge can decide at her discretion whether to conduct an in camera inspection of any requested documents. Rowe v. Rowe, 74 N.C. App. 54, 327 S.E.2d 624, 627 (N.C. App. 1985), cert. denied 314 N.C. 331, 333 S.E.2d 489 (N.C. 1985); Midgett v. Crystal Dawn Corp., 58 N.C. App. 734, 294 S.E.2d 386 (N.C. App. 1982).

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  • Ohio

    At least one Ohio court has held that before ruling on a motion to quash a subpoena, a trial court must make an in camera inspection to determine if material is protected by the shield law. State v. Geis, 2 Ohio App.3d 258, 441 N.E.2d 803 (10th Dist. 1981); see also Skorvanek v. Ohio Dept. of Rehabilitation and Correction, 10th Dist. Franklin No. 17AP-222, 2018 WL 4603135, 2018-Ohio-3870, ¶72 (“Courts should use in camera inspection to weigh claims of privilege because, “‘[b]y conducting such an inspection in chambers away from the jury and without the presence or participation of counsel for either party, the trial judge may make the necessary determination without compromising the confidentiality of any information he finds to be privileged.’ ” (citations omitted)).

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  • Oklahoma

    The Oklahoma privilege statute does not speak to in camera review.  It may be appropriate to suggest such review in the motion to quash if relevance rather than unavailability from alternative sources is the primary issue the court will have to deal with in deciding the motion.  That is, if it is clear that the information sought is not available from alternative sources, and the success of the motion to quash depends on the court's perception of the relevance or lack of relevance of the information, in camera review may help persuade the court that the information sought is of limited or marginal relevance or does not “go to the heart” of the issue to which it might be marginally relevant.

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  • Oregon

    No law or case law directs a court to conduct an in camera review of materials or interview the reporter before deciding on a motion to quash.

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  • Pennsylvania

    Neither the Pennsylvania Shield Law nor the First Amendment privilege direct, require, or suggest that the court conduct an in camera review of materials. The Third Circuit, however, has affirmed a district court’s order compelling in camera review of a reporter’s notes in a criminal trial when the defendant’s subpoena complied with the Federal Rules of Criminal Procedure and the information was not available from another source. See United States v. Cuthbertson (Cuthbertson I), 630 F.2d 139, 148 (3d Cir. 1980).

    The Pennsylvania Supreme Court criticized the “refusal” of two reporters to produce subpoenaed information for in camera review in Commonwealth v. Bowden, 838 A.2d 740, 758 n.13 (Pa. 2003) (“Absent disclosure or in camera review, there was simply no way” for trial court to determine whether subpoenaed information was “crucial” to prosecution.).

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  • Rhode Island

    There are no requirements that an in camera review of materials occur prior to a court's deciding on a Motion to Quash.

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  • South Carolina

    There is no requirement for in camera review in the South Carolina statute.

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  • Tennessee

    The Tennessee Court of Appeals has held that the shield law statute does not allow for in camera review. State v. Shaffer, No. 89-208-II, 1990 WL 3347,1990 Tenn. App. LEXIS 21, 17 Med. L. Rptr. 3347 (Tenn. Ct. App. 1990). The court said that the trial judge, who had ordered in camera review of a television reporter's interview outtakes, had exceeded his authority in making such an order. Because the shield law statute provides for an evidentiary hearing on the elements of the privilege, and because it makes no mention of in camera review, the court found that in camera review was improper.

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  • Texas

    The law does not direct that an in camera review of materials or interview with the reporter be conducted prior to ruling on a motion to quash.

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  • Utah

    Once the court makes an initial determination that information which is claimed to be privileged should be disclosed, the court is required to conduct an in camera review of the subject information before making a final determination requiring disclosure. Utah R. Evid. 509(f).

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  • Vermont

    Although there is no statute or rule of civil or criminal procedure requiring in camera review before ruling on a motion to compel or a motion to quash, the Vermont Supreme Court has indicated such review is necessary to a determination of whether good cause exists for ordering the subpoenaed testimony or document production. See In re B.S., 163 Vt. 445, 452, 659 A.2d 1137, 1141-42 (Vt. 1995) (“Indeed, we are uncertain how a court can make a good cause determination without first examining the records to see what they contain”).

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  • Virginia

    The case law does not require the court to conduct an in camera review of materials or to interview the reporter prior to deciding a motion to quash.

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  • Washington

    In at least one unpublished decision, the Washington Court of Appeals has shown itself receptive to in camera review in connection with claims of reporter's privilege. See In the matter of the request of: Plaintiffs Alfredo Azula et al., 29 Med. L. Rptr. 1414 (Wash. App. 2001).

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  • West Virginia

    The only requirement for an in camera review of a reporter's materials is in the context of a criminal proceeding. Ranson, 488 S.E.2d 5. In Ranson, two newspapers filed motions to quash subpoenas ducus tecum served on them by a criminal defendant who sought unpublished photographs of the crime scene. The court held, as a threshold matter, that the criminal defendant must show, with particularity, that unpublished, nonconfidential material is "highly material and relevant" to the defendant's theory of defense, "necessary or critical" to the defendant's theory of defense, and not obtainable from other available sources. Id. at 7. The criminal defendant further is required to offer more than a "bald assertion" that "the allegedly privileged information satisfies the requisite criteria," but rather, must explain what information he expects the media material to contain. Id. at 12.

    Only after the criminal defendant satisfies the threshold balancing test with regard to the unpublished, nonconfidential material, "the circuit court shall conduct an in camera review of the requested material and release to the defendant only that information which the court deems to be relevant to the defendant's articulated theory of defense." Id. at 13. Following the in camera review, the circuit court is then required to make specific written findings of fact.

    The Supreme Court of Appeals of West Virginia was specific in addressing only the requirement of an in camera review in the case of non-confidential, unpublished material subpoenaed by a criminal defendant. At present there is no requirement for an in camera review in any other type of situation.

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  • Wisconsin

    The law does not require the court to conduct an in camera review of materials or to interview the reporter before deciding a motion to quash.

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  • Wyoming

    The Wyoming Supreme Court has required in camera review of materials sought by a subpoena when the balancing of interests must be undertaken by the court. Hartston v. Campbell County Memorial Hospital, 913 P.2d 870 (1996). There are no reported cases involving in camera inspection of materials sought from reporters, but the general requirement of such an inspection would logically apply in such cases.

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