c. Consequences of refusing

By ordering an in camera review, a court requires the subpoenaed party to comply with the subpoena. Thus, a reporter can be held in contempt for failing to comply with a court order for in camera review.

If a reporter or publisher does not consent to in camera review, a judge will very likely not grant the motion to quash. Disobeying a judge's order for in camera review also may result in being held in contempt.

Where CBS refused to produce notes and outtakes for in camera review by the trial court in a criminal matter on the ground that such review would impinge its First Amendment-based privilege, the Third Circuit affirmed a citation for civil contempt to the extent that CBS should have produced for in camera inspection those materials as to which the party issuing the subpoena had complied with the limitations of Fed. R. Crim. P. 17(c) and had demonstrated that the information sought was not available from another source. Cuthbertson I, 630 F.2d at 148-49.

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

As in any case of non-compliance with a court instruction, a reporter who refuses to consent to an in camera review of subpoenaed materials may be held in contempt, and subjected to a fine or imprisonment. In re Selcraig, 705 F.2d 789, 795 (5th Cir. 1983). In Selcraig, the trial court held a reporter in civil contempt for refusing to answer the judge's questions regarding his confidential sources in camera. Id. at 792. The Fifth Circuit reversed the contempt finding because the subpoenaing party did not demonstrate that the information was necessary to the presentation of his claim. However, it did express approval for the trial court's method of questioning the reporter in camera and suggested that it "serve as a model for any other inquiries." Id. at 799.

If a reporter or publisher does not consent to in camera review the consequences are potential contempt of court with consequent punishment.

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 refusing to 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 refusal to consent to, in camera review.

There is no statutory or case law addressing this issue.

If the court orders an in camera review and the reporter or publisher does not consent, it is possible that the reporter or publisher could be subject to a contempt citation, which is appealable as a final order under the Arkansas Rules of Appellate Procedure. However, a motion to quash or for a protective order usually will protect the reporter or publisher from a finding of contempt.

No California statute or case law specifically addresses the consequences of refusing to allow in camera review, although it probably would result in entry of a finding of contempt. However, the California Supreme Court has directed trial courts to stay contempt orders pending appeal. See New York Times Co. v. Superior Court, 51 Cal. 3d 453, 460, 796 P.2d 811, 273 Cal. Rptr. 98 (1990). Consequently, it is unlikely that refusal to allow in camera review would result in immediate execution of the contempt sentence.

While it is difficult to predict how a court would react to a newsperson refusing to comply with a court order, the most likely consequence of such action is a finding of direct contempt under Colo. R. Civ. P. 107; Gordon, 9 P.3d at 1113 (lower court fine of $5,000 for failure to reveal sources overturned). Under Rule 107, penalties can include fine, a fixed prison sentence or both. Likewise, a party or non-party can be sanctioned or fined under Colo. R. Civ. P. 37 if the party seeking the information succeeds in filing a motion to compel. Rule 37(a)(3); see also Todd v. Bear Valley Apartments, 980 P.2d 973 (Colo. 1999).

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

No statutory or case law addressing this issue exists.

Failure to obey a subpoena may be deemed a contempt of court. Super. Ct. Civ. R. 45(e).

No statutory or case law addressing this issue exists.

If the reporter or publisher does not consent to in camera review ordered by the judge, the judge could hold the reporter or publisher in contempt.

A person, company, or other entity protected by the Georgia statutory privilege is entitled to seek an immediate, direct appeal if they are ordered to testify or produce documents after invoking the privilege. Buckner-Webb v. State, 314 Ga. 823, 829 & n.8, 878 S.E. 2d 481, 487 & n.8 (2022) (citing In re Paul, 270 Ga. 680, 683, 513 S.E. 2d 219, 223 (1999)).

There is no Hawai'i law regarding the consequences of a reporter's or publisher's refusal to consent to an in camera review.

A refusal to permit an in-camera review potentially exposes the reporter or other media witness to contempt orders or other sanctions. In Idaho, the inherent right of the trial court to enforce its orders through contempt orders has been expressly recognized by the Idaho Supreme Court in many cases, including a case in which a reporter was fined and jailed for refusal to disclose a confidential source. Marks v. Vehlow, 105 Idaho 560, 671 P.2d 473 (1983).

The Statute provides a contempt provision stating that “[a] person refusing to testify or otherwise comply with the order to disclose the source of the information as specified in such order, after such order becomes final, may be adjudged in contempt of court and punished accordingly.” 735 ILCS 5/8-909.  In People v. Slover, 323 Ill. App. 3d 620, 753 N.E.2d 554 (2001), the trial court allowed newspaper editor to “purge herself of the contempt finding by delivering all referenced photographs to the [c]ourt for an in camera review”; she “respectfully declined to produce unpublished photographs and requested a sentence in the trial court's discretion to enable her to appeal the trial court's order.”  The trial court sentenced the editor to jail, staying the sentence pending an appeal (in which she prevailed).  Id. at 622-23, 753 N.E.2d at 556.

There is no case law on this issue, but courts have broad powers to hold people in contempt for failing to obey a court order. See Ind. Code § 34-47-3-1; Ind. Tr. R. 45(F) (giving the court power to hold a person who failed to comply with a subpoena in contempt). In Matter of WTHR-TV (State v. Cline), 693 N.E.2d 1 (Ind. 1998), the media party moved for a stay of the trial court's order for in camera review. The order was stayed pending the appeal. Id. at 5.

If the reporter or publisher does not consent to a request for an in-camera review, the likely consequence is a denial of the motion to quash and a possible contempt ruling.

Refusal to consent to in camera review could risk loss of the motion to quash, an order to produce the documents at issue, or sanctions for contempt of court.

Maine's courts have not addressed this issue.

There is no case law documenting the consequences of a refusal to consent to an in camera review.

There is no case law on this issue, but courts have broad powers to hold people in contempt for failing to obey a court order.

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.

If a reporter refuses any order of a court in Missouri, whether for in camera review or for any other matter, he or she may be held in contempt of court, and the penalties could include a fine or imprisonment or any combination of the two.

If a district court order is not obeyed, the alternatives are obtaining a stay pending appeal, or risking sanctions for contempt of court.

No reported decisions.

There are no published decisions concerning the consequences to a reporter or publisher who refuses to consent to an in camera review.

There is no case law addressing this issue.

None.

“Any order requiring an in camera disclosure ... may be appealed ... in the procedural manner provided by the Rules of Appellate Procedure.” Rule 11-514(D) NMRA. The “procedural manner provided by the Rules of Appellate Procedure” is presumably the “writ of error,” which codifies the collateral-order doctrine. Allowance of an appeal under this doctrine is purely discretionary with the appellate court. See Rule 12-503(L) NMRA.

No New York statute or case law specifically addresses the consequences of refusing to allow an in camera review of subpoenaed material. However, refusal to abide by a court's order to produce materials for such a review would probably result in the entry of a contempt finding. The better practice is to file an appeal of the order to produce and request that enforcement of the order be stayed pursuant to CPLR § 5519(c).

A reporter refusing to comply with an order requiring in camera review can be (and almost certainly will be) held in contempt of court, even if the court's order was erroneously issued. Massengill v. Lee, 228 N.C. 35, 44 S.E.2d 356, 358 (N.C. 1947); Midgett v. Crystal Dawn Corp., 58 N.C. App. 734, 294 S.E.2d 386 (N.C. App. 1982); Godsey v. Poe, 36 N.C. App. 682, 245 S.E.2d 522, 524 (N.C. App. 1978). The only way to contest an order requiring in camera review, which is interlocutory in nature and not subject to direct appeal, is to seek a writ of certiorari, mandamus, or prohibition from the appellate courts under the applicable rules of appellate procedure. Otherwise, an appeal will lie from a finding of contempt.

If the reporter or publisher does not consent to an in camera review the court can still order an in camera review.

There is no statutory or case law addressing this issue.

Refusal to 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 (see ¶ VIII below) will be sought in the first instance.

No Oregon statute or case specifically addresses this, but it would probably result in a finding of contempt.

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).

A reporter or publisher could be subject to contempt, fines, sanctions or having their case dismissed.

As a practical matter the consequence of refusal will likely be a denial of the motion to quash. I would argue that just as in camera review is not the norm in cases involving the assertion of attorney-client privilege, it should not be required in journalist privilege cases.

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). Thus, the issue of refusing in camera review should not come up. Nevertheless, journalists should be aware that they may be held in contempt for violating a court order, whether or not that order is proper.

If the court orders an in camera review and the journalist does not comply, there is a possibility that the motion will be denied and the journalists will be held in contempt.

There is no statutory or case law addressing this issue.

If a reporter or publisher refuses to consent to an in camera review ordered by the trial court judge or the Vermont Supreme Court, he or she could be held in contempt of court. 12 V.S.A. §§ 121-22 (2003). Judgments of contempt lie within the discretion of the trial court judge.  Obolensky v. Trombley, 2015 VT 34, ¶ 42, 115 A.3d 1016 (Vt. 2015).  The Vermont Supreme Court has held that requiring a person held in contempt to pay the attorneys’ fees of the other party is not usually warranted, because a “defendant’s right to compel a newsreporter’s testimony has not been clearly defined.” State v. Gundlah, 160 Vt. 193, 197, 624 A.2d 328, 370 (1993). Additionally, the use of prospective fines by trial court judges against reporters or publishers is not favored in Vermont. Id.

It is likely that a reporter or publisher that does not consent to an in camera review would be held in contempt of court.

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

West Virginia courts have not addressed the consequences of a reporter who refuses to consent to an in camera review of requested material. Pragmatically speaking, however, if an interlocutory appeal from an order mandating an in camera review is taken, acceptance of a Petition for Writ of Prohibition by the state Supreme Court effectively operates to stay the order.

A reporter who refuses to consent to an in camera review may be held in contempt under chapter 785, as the court may simply refuse to apply the privilege.

There are no reported cases in Wyoming in which the subpoenaed party has refused to turn materials over for an in camera inspection. However, the refusing party would likely be held to be in contempt of court or face the prospect of having its motion to quash denied.