B. Separation orders

There is no case law addressing this issue.

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

There appears to be no case or statutory law regarding separation orders in the reporter's privilege context in the Second Circuit. If it is not possible to defeat a motion for a separation order, it is advisable to try to narrow the order to just a part of the trial (e.g., when the reporter is both covering the trial and is a witness, agree to have the reporter exit the room only during portions of the trial involving a subject about which the reporter will testify).

Courts in the Third Circuit do not appear to have addressed directly the question of whether and under what circumstances a separation order (that is, an order prohibiting a reporter who might be subpoenaed to testify from attending the trial in question) is appropriate.

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

No reported decision of the Fifth Circuit has addressed the scope of sequestration orders issued against reporters who are both trying to cover the trial and are on a witness list.

There is no statutory or case law addressing this issue.

No reported federal cases in the Seventh Circuit have discussed separation orders.

No Eighth circuit case law addresses this issue in the context of the reporter's privilege.

There is no statutory or case law addressing this issue.

In Alabama, the scope of separation orders are typically a matter of negotiation with the attorneys for the parties and the court.

There is no statute or case law in Alaska concerning "separation orders" issued against reporters who are both trying to cover a trial and are on a witness list for it, but the specter of this problem, particularly in the numerous communities around the state that are served by a small newspaper or public radio station that often has only one or two reporters, is routinely cited as one of the reasons underlying the need to recognize and apply the qualified constitutional reporter's privilege.

There is no statutory or case law addressing this issue.

There is no Arkansas case law, statute or court rule that allows for a "separation order" or any other procedural device to allow a reporter who also will be a witness to remain in the courtroom to cover a proceeding once "the rule" ordering witnesses out of the courtroom has been invoked. Some news organizations have internal rules prohibiting a reporter from covering a proceeding at which he may be called as a witness.

No statutory or case law addresses the question of whether a court can restrict courtroom access for a reporter who is listed as a witness but also trying to cover the trial. In an analogous circumstance, the Court of Appeal rejected a gag order against a newspaper that was a defendant in the case and also attempting to report on the trial testimony. Freedom Commc’ns, Inc. v. Superior Court, 167 Cal. App. 4th 150, 83 Cal. Rptr. 3d 861 (2008). The court held that “the danger the trial court sought to avert by its prior restraint [t]here – the risk that witnesses in a civil trial might be influenced by reading news reports of the testimony of other witnesses – cannot possibly justify the censorship imposed.” Id. at 153.

No reported cases in Colorado.

There is no case law in Connecticut on separation orders in the context of a reporter who will also be a witness. Sequestration of witnesses generally is authorized in criminal cases by Practice Book §42-36.

No statutory or case law addressing this issue exists.

There is no statutory or case law addressing separation orders. To the extent that circumstances that could implicate separation orders might arise, attorneys should point to the chilling effects such an order could have on the state's freedom of the press.

No statutory or case law addressing this issue exists.

The issue of sequestering a reporter who was both a witness and working to cover the trial has come up at least twice in Florida courts. In Gore Newspaper Co. v. Reasbeck, 363 So. 2d 609 (Fla. 4th DCA 1978), an attorney for the defendant in a criminal case asked the court to place several news reporters under oath and exclude them from the courtroom under the rule allowing for sequestration of witnesses. Id. at 610. The trial judge complied. On appeal, the Fourth District Court of Appeal held that there was not the slightest indication that the reporters were likely to be called as witnesses in the trial and that the entire “charade” was simply a “ruse” by counsel to exclude the press from the courtroom during the suppression hearing. See id. The court held that the grant of sequestration by the trial judge was improper. See id. The purpose of the rule allowing sequestration of witnesses is to prevent the testimony of one witness from influencing the testimony of another. Where the reporters never were intended to be witnesses in the case, and the sequestration rule was invoked merely to keep the proceedings from public view, it was error to invoke the rule against the reporters. See id. at 611.

More recently, in Palm Beach Newspapers, LLC v. Colin, 199 So. 3d 556, 558 (Fla. 4th DCA 2016), an appeals court held that a reporter has a due process right to reasonable notice that he or she might be called as a witness, so that the reporter has a reasonable opportunity to assert the reporter’s privilege. The reporter in that case, however, was deemed to have waived the privilege, because he opted to testify without waiting for his attorneys. Id.

Because Georgia's reporter's privilege has effectively precluded the use of reporters as witnesses, there is no statutory or case law addressing separation or sequestration orders when reporters are called as witnesses in trials that they are covering. However, it is well-established under Georgia law that a trial court has discretion to lift or modify the rule of sequestration with respect to witnesses. Accordingly, consistent with the reporter's privilege, trial courts should exercise that discretion to modify separation orders.

There is no authority in Hawai'i regarding separation orders issued against reporters who are on the witness list of a trial they are covering. In practice, it is a good idea for the reporter's employer's attorney to attempt to work out such issues beforehand.

There are no known judicial decisions in Idaho considering the issue of whether a reporter covering a trial can be forced to remain outside of the courtroom because the reporter is on a witness list. A party is entitled under Idaho court rules to ask the court to exclude all witnesses from the courtroom. If a reporter is on such a witness list, and a party seeks his or her exclusion, then the reporter should ask the court to modify the exclusion order so as to allow the reporter to remain in the courtroom. The argument on such a request presumably would focus upon the direct chilling effect caused by the exclusion.

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

In Shindler v. State, 335 N.E.2d 638 (Ind. App. 1975), the court considered a breach of a separation of witnesses order. The trial court had ordered that witnesses not discuss testimony among themselves. One witness remained in the courtroom and wrote newspaper articles about the trial. The defendant argued that because the other witnesses read the news articles, there had been a violation of the order. The court did not decide whether a violation of the order had occurred because it found that any such error was harmless. Id. at 267–68.

No reported cases or statutory authority address this issue.

There is no statutory or case law addressing this issue.

There is no protection either through statute or case law that limits the scope of separation orders issued against reporters who are both trying to cover a trial and who are on a witness list. Reporters, however, have had some success gaining protection by arguing that the separation order, acting in conjunction with a subpoena, effectively violates his or her newsgathering rights under the First Amendment.

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

There are no Maine decisions or statutory provisions limiting the scope of separation orders issued against reporters who are both trying to cover a trial and are on a witness list.

Maryland case law does not discuss a reporter's protection limiting the scope of separation orders issued against reporters who are both trying to cover the trial and are on a witness list.

There appears to be no Massachusetts law on this issue.

When a court attempts to restrict a reporter’s access to the courtroom because the reporter is a potential witness, parties argue that this is part of the reason that the reporter should not be called to testify. If the court insists that a reporter is going to have to testify, parties generally send another reporter to cover the court proceeding unless the testifying reporter’s testimony is very basic and innocuous. If the party cannot assign another reporter, they try to get the reporter on and off the stand as quickly as possible so she or he can return to reporting on the trial. Unfortunately, this does not always work.

There are no reported cases or statutes in Minnesota limiting the scope of separation orders issued against reporters who are both trying to cover a trial and are on a witness list. Separation orders involving reporters who are on a witness list are very rare. Assuming that a separation order has been entered and a reporter appears on a witness list but the reporter has not actually been subpoenaed (and therefore a motion to quash the subpoena would be premature), a prudent first step in challenging the order would be to move to strike the reporter from the witness list or to determine the scope and admissibility of the reporter's potential testimony.

There is no statutory or case law addressing this issue.

There is no statutory or case law addressing this issue.  However, Missouri has an unwritten “rule” that allows attorneys to clear the courtroom of any person who is a prospective witness prior to the start of a trial, which is generally invoked by all attorneys practicing in the state as a matter of course.  It would be highly unlikely for a reporter to be summoned to testify while covering a case unless the factual circumstances were very unusual -- in most cases, the reporter would have been told to leave the room because of “the rule,” giving the reporter time to seek counsel in regard to on the matter.

The author is unaware of any cases where separation orders have been an issue.

No statutes or case law address the scope or propriety of separation orders issued against reporters who are both trying to cover the trial and are on a witness list.

It appears that there are no published court decisions or statutes limiting the scope of separation orders issued against reporters who are both trying to cover the trial and are on a witness list. In practice before the trial courts, a few attorneys have listed reporters on witness lists and have attempted to have the reporter excluded from the courtroom. There appear to be no known cases where a motion to quash a subpoena has not been successful; thus, a reporter has not been called to testify.

There is no statutory or case law in New Hampshire regarding separation orders issued against reporters who are both trying to cover the trial and are on a witness list.

The privilege commands that, with one limited exception relating to newly discovered evidence that could not have been discovered earlier, proceedings under the Shield Law "shall take place before the trial" and, therefore, the issue should be adjudicated prior to the trial and a separation order is unnecessary.  N.J.S.A.  2A:84A-21.2.

No New Mexico law specifically addresses this issue.

There is no statutory or case law addressing this issue.

There are no reported cases or state statutes involving journalists who are both on the witness list and covering the trial.

North Dakota has no statute or case law that offers additional protection limiting the scope of separation orders who are both trying to cover a trial and are also on the witness list. The issue has not been litigated in North Dakota.

We are not aware of any use of a separation order in Oklahoma.

No statutory or case law addressing this issue.

There is no Pennsylvania law addressing the scope of separation orders issued against reporters who are both trying to cover a trial and are on a witness list for that trial.

In United States v. Cianci, 378 F.3d 71 (1st Cir. 2004), a well-known radio talk show host became involved in high profile case involving criminal charges brought against the City of Providence's mayor. Although not technically a "news reporter," the radio talk show host appeared regularly at press conferences and court proceedings involving the on-going controversial case against the City's mayor and others allegedly involved in corruption.

In the fall of 2001 the radio talk show host was subpoenaed by a special prosecutor to testify at a deposition involving a video tape that was leaked to the media during the pendency of the federal criminal investigation of the Mayor. The radio talk show host argued that the federal court has recognized a qualified journalist's privilege. The special prosecutor argued that the radio talk show host was not a "journalist." The United States District Court for the District of Rhode Island entered an order indicating that the radio talk show host would have to appear at the deposition, but that he could raise the privilege if he felt that the information sought by certain questions was based on confidential sources.

Subsequently, and while the radio talk show host was "covering" the criminal trial of the mayor, the defense listed him as a possible witness. Due to a sequestration order for all potential witnesses, the radio talk show host initially was prohibited from attending the trial. Ultimately, an agreement with defense counsel was reached whereby the radio talk show host was permitted to be present for the testimony of witnesses who were testifying about matters that were not relevant to the radio talk show host's potential testimony. Thus, he was able to attend most of the trial.

It is unlikely that any newspaper in South Carolina would rely on a reporter who is to be a witness in a case to cover the trial of the case. In the federal case discussed above, In re Shain, the reporters who were most knowledgeable on the subject of the corruption trials were the ones who were subpoenaed to testify. This removed them from trial coverage and had the effect of diminishing the ability of the public to receive the most complete coverage of the trial.

It is doubtful a separation order has been entered in a South Dakota case. There are no statutory or case law protections.

There is no statutory or case law on the topic of separation orders.

There are no reported cases on this issue, although the concern over subpoenaing reporters to testify at a trial when they are actively reporting on the trial or hearing is an issue of concern for reporters and has been cited by lawyers as an additional reason to quash a subpoena in this circumstance.

There is no statutory or case law addressing this issue.

Vermont has no reported cases involving separation orders.

This issue has not been litigated in a reported Virginia case.

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

West Virginia case law and statutes do not address separation orders issued against reporters who are both trying to cover the trial and are on a witness list. Anecdotally, this problem has occurred in federal cases in West Virginia, although reporters have resolved the issue by informally persuading the party who named them to remove them from the list. C.f. In re The Wall St. Journal, 601 F. App'x 215, 218 (4th Cir. 2015) (reversing a trial court’s gag and sealing order in a criminal case and holding that the public enjoys a qualified right of access to criminal trials, and to documents submitted in the course of a trial, including documents filed in connection with a motion to dismiss an indictment and other pretrial filings).

There is no authority in Wisconsin that addresses the issue.

There are no reported cases in Wyoming dealing with the sequestering of reporters who have been subpoenaed to testify in a trial. Reporters should first attempt to seek a narrowing of any sequestering during a trial they are assigned to cover as a condition to their testimony. If such negotiations fail, the reporter should seek such an order from the court.