b. Consequences of consent

In United States v. LaRouche Campaign 841 F.2d 1176 (1st Cir. 1988), NBC failed to comply with an order to submit outtakes of an interview with a key witness to in camera review. The Massachusetts District Court held NBC in civil contempt and fined them $500 a day. Id. The First Circuit held that this decision was not an abuse of discretion. Id.

A stay pending appeal of an adverse ruling following in camera review is not automatic. The court which issued the ruling may grant a stay pending appeal based on four factors: "(1) whether the movant will suffer irreparable injury absent a stay, (2) whether a party will suffer substantial injury if a stay is issued, (3) whether the movant has demonstrated a 'substantial possibility, although less than a likelihood, of success' on appeal, and (4) the public interests that may be affected." First City, Texas-Houston, N.A. v. Rafidain Bank, 131 F. Supp. 2d 540, 543 (S.D.N.Y. 2001) (internal citations omitted); Hirschfeld v. Bd. of Elections, 984 F.2d 35, 39 (2d Cir. 1993).

Neither the applicable rules nor case law in the Third Circuit appear to address the question of whether consent to in camera review will result in an automatic stay of an adverse ruling pending appeal.

There does not appear to be any case law in the Fourth Circuit indicating whether any privilege is waived if a reporter or publisher consents to an in camera review.

A reporter is entitled to request a stay pending appeal from an adverse ruling, but such a stay is not necessarily guaranteed from the reporter's consent to the judge's in camera inspection. Rather, a reporter must follow the standard procedures for filing an appeal and requesting a stay pending appellate resolution. Fed. R. App. P. 8(a)(1)(A). In Selcraig, for instance, the trial court ordered the imprisonment of a reporter for refusing to identify confidential sources. In re Selcraig, 705 F.2d 789, 795 (5th Cir. 1983). The order for imprisonment was stayed, however, pending the reporter's appeal of the trial judge's contempt determination. Id.

If a journalist consents to an in camera review, the court requires disclosure, and the journalist appeals, there is no automatic stay of the court's ruling. The journalist would have to move the court to stay its ruling pending appeal, and if denied, would have to seek an order from the Sixth Circuit court of appeals staying the district court's ruling.

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

There is no statutory or case law addressing this issue.

There is no Alabama statutory or reported case law addressing the consequences of a reporter's or publisher's consent to an in camera review.

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 directly require or address in camera review. Experience with trial courts addressing privilege issues does not include instances of demands for, or consent to, in camera review. The shield law provides that an order of the superior court entered under AS 09.25.300 - 09.25.390 shall be subject to review by the supreme court, by appeal or by certiorari, as the rules of that court may provide, and that during the pendency of the appeal, the privilege shall remain in full force and effect.

There is no statutory or case law addressing this issue.

If the reporter or publisher consents to in camera review, a stay pending appeal is not automatic in the event of an adverse ruling. The reporter and the reporter's attorneys are encouraged to be prepared to act quickly.

Consent to in camera review of the reporter’s materials will not result in a waiver of the privilege. SCI-Sacramento, Inc. v. Superior Court, 54 Cal. App. 4th 654, 662, 62 Cal. Rptr. 2d 868 (1997). Moreover, while there is no automatic stay of any order that might be entered following review of the materials, the California Supreme Court has recommended that trial courts enter such stays, and trial courts regularly do so. See New York Times Co. v. Superior Court, 51 Cal. 3d 453, 460, 796 P.2d 811, 273 Cal. Rptr. 98 (1990); SCI-Sacramento, 54 Cal. App. 4th at 667.

Because there is no requirement for an in camera review or interview with the reporter, there is no procedure established in Colorado that grants an automatic stay pending appeal under these circumstances. Under the Rule 62(a) of the Colorado Rules of Civil Procedure, a final judgment is automatically stayed for 15 days without further action. However, to protect the reporter's rights if a trial court denies a Motion to Quash, counsel representing a newsperson at a hearing on a Motion to Quash should be certain to request a stay from the court and should also be certain to request a stay should the Court of Appeals rule against the newsperson.

Neither the Shield Law nor the case law address the consequences of consent.

No statutory or case law addressing this issue exists.

Not specified.

No statutory or case law addressing this issue exists.

Florida courts have not addressed a situation in which the reporter or publisher consents to in camera review and whether a stay pending appeal is then automatic in the event of an adverse ruling.

There is no Georgia law concerning consent to in camera review.

There is no Hawai'i law regarding whether consent to in camera review results in an automatic stay pending appeal in the event of an adverse ruling.

There is no special treatment of the motion to quash in a reporter's privilege case as it may pertain to an automatic stay or other similar request.

Illinois courts have not directly addressed the consequences of consent to in camera review on the appeal process. The court in United States v. Bingham indirectly addressed the issue when the news media party consented to an in camera review in order for the court to make an accurate determination on the motion to quash the subpoena and did not appeal the order. 765 F. Supp. 954, 956 (N.D. Ill. 1991).

There is no statutory or case law on this issue.

No reported cases address this issue.

There is no statutory or case law addressing this issue.

If a reporter consents to in camera review, a stay pending appeal is not automatic in the event of an adverse ruling. In fact, there is no right of appeal. Orders enforcing subpoenas have been held to be "purely interlocutory" and therefore, not appealable. Parties who have suffered an adverse judgment must proceed through a writ of prohibition. Lexington Herald-Leader Co. v. Beard, 690 S.W.2d 374, 376 (Ky. 1984) (citing Claussner Hosiery Co. v. City of Paducah, 120 S.W.2d 1039 (Ky. 1938).

In Louisiana state courts, a stay pending appeal is automatic regardless of whether the reporter consents to in camera review. La. R.S. 45:1459(E).

A journalist waives the protection provided by the shield law if the journalist voluntarily discloses or consents to disclosure of the protected information. 16 M.R.S.A. § 61(4). Additionally, a party or nonparty that may assert a privilege, confidentiality protection under the shield statute, or privacy protection may waive the right to hearing and any applicable privileges or protections by notifying the court in writing that they intend to do so. Me. R. Crim. P. 17(d) (attendance of witnesses); Me. R. Crim. P. 17A(f) (documentary evidence or tangible objects).

An adverse ruling resulting from in camera review of documents does not entitle the person submitting the documents to an automatic stay pending appeal. In re Grand Jury Subpoena (Under Seal), 774 F.2d 624, 627 (4th Cir. 1985) (appellant's motion for stay pending appeal was denied after in camera review of subpoenaed documents where court concluded the documents were not covered by the attorney-client privilege).

There is no statutory or case law on this issue.

There are no reported Michigan cases discussing the issue of waiver of the privilege based upon in-camera review.

There is no statutory or case law addressing this issue.

In the case of an adverse ruling a stay is not automatic, but there would be good grounds for getting one on request.

No reported decisions.

There is no automatic stay pending appeal in the event of an adverse ruling in cases where a reporter or publisher consents to an in camera review.

There is no case law on point, but consent to an in camera review should not be relevant to how the court will rule.

Consent to an in camera review may be deemed a waiver of the privilege.

Rule 11-514 provides:

"Following the in camera hearing, the court shall enter written findings of fact and conclusions of law without disclosing any of the matters for which the privilege is asserted, and a written order ....

Evidence submitted to the court in camera, and any record of the in camera proceedings, shall be sealed and preserved to be made available to an appellate court in the event of an appeal. The contents of the sealed evidence shall not be revealed without the consent of the person asserting the privilege.

. . . .

Any order ... ordering ... disclosure may be appealed ... in the procedural manner provided by the Rules of Appellate Procedure."

Rule 11-514(D) NMRA. A fair reading of these passages is that any confidential information or sources revealed to the court in camera will remain under seal as long as the privilege-holder wants them to. A separate question, however, is whether the reporter’s obligation to obey an order of disclosure is stayed pending appeal. See infra pt. VIII(B)(2).

Although there is no New York case law directly addressing the issue, the consent to an in camera review of the materials does not appear to act as a waiver of the privilege. See People v. Lyons, 151 Misc.2d 718, 574 N.Y.S.2d 126 (City Ct. Buffalo 1991).

It is within the judge's discretion whether or not to conduct an in camera review. Consent of the parties to such review makes it more likely that a judge will review materials in camera but consent does not bind the judge in any way. The standard of review for an appeal of the judge's decision with regard to in camera review is abuse of discretion, a very difficult standard to meet. Rowe v. Rowe, 74 N.C. App. 54, 327 S.E.2d 624, 627 (N.C. App. 1985) cert. denied, 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).

The statute does not require an in camera review, but the courts will normally conduct such a review as necessitated by the circumstances.

See 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)).

Consent to in camera review has no effect under the statute on the right to review by an appellate court, other than perhaps the impact on the good will of the court, from whom a stay pending the filing of a writ application will be sought in the first instance.

No case law or statute on this subject.

There are no decisions specifically addressing the impact of refusing to consent to an in camera review. In Commonwealth v. Bowden, the Pennsylvania Supreme Court criticized the reporters’ refusal to provide the subpoenaed information for in camera review. 838 A.2d 740, 758 n.13 (Pa. 2003).

Because a stay pending an appeal is not automatic in the event of an adverse ruling, the reporter or publisher should attempt to negotiate the stay prior to consenting to an in camera review.

If an appeal is taken from an order denying a motion to quash, and, in effect, compelling the production or testimony, that order would be in the nature of an injunction, which is not automatically stayed on appeal. In such a case it would be necessary to seek a writ of supersedeas from first the trial court and then the appellate court where the appeal has been filed. Rule 225, SCACR.

The Tennessee Court of Appeals has held that the shield law does not permit 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). Thus, the issue of consenting to review should not come up.

This issue is not specifically addressed in the statute. As a practical matter, a stay should be requested.

There is no statutory or case law addressing this issue.

Consenting to an in camera review does not automatically result in a stay pending appeal in the event of an adverse ruling. If the trial court, after an in camera review, orders that a reporter must give testimony or that his or her written material must be turned over to the subpoenaing party, the reporter can file a motion with that court for permission to file an interlocutory appeal within fourteen (14) days of that order. See V.R.A.P. 5.1(b)(5)(A). In his or her motion, the reporter can request that the testimony or production of documents be stayed pending the appeal. If the trial court denies the motion for interlocutory appeal or denies a stay pending the taking of such an appeal, the moving party may, within 14 days after entry of the order of denial, file the motion with the Supreme Court.  V.R.A.P. 5.1(b)(7).

There are no consequences to consenting to an in camera review.

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

West Virginia courts have not been confronted with the issue of whether a stay pending appeal should be granted automatically where the reporter consents to an in camera review and, following the review, is ordered to comply with the subpoena or other request for information.

There is no authority in Wisconsin about the consequences of consent to an in camera review.

A stay pending appeal of the denial of a motion to quash after the materials have been reviewed is not automatic. Though there are no reported cases involving media subpoenas in Wyoming, the courts have issued stays in analogous cases where an appeal has been undertaken of an order requiring the disclosure of information claimed to be privileged or confidential.