c. Partial disclosure of information

A reporter may disclose some information from a source or about a source without waiving the privilege. See, e.g., Summit Tech., Inc. v. Healthcare Capital Group, Inc., 141 F.R.D. 381, 384 (D. Mass. 1992) (finding that the subpoenaed party’s revealing the identity of certain non-confidential sources as well as the content and timing of his conversations with an unnamed source did not waive the reporter’s privilege as to the unnamed source); Fischer v. McGowan, 585 F. Supp. 978, 987 (D.R.I. 1984) (holding that a reporter’s “partial disclosure” of the identity of two sources and the class of people from whom he derived his information did not waive the privilege as to the unnamed sources under Rhode Island state law).

There appears to be no appellate-level statutory or caselaw directly regarding a situation in which a journalist has waived the privilege by partially disclosing information from the source.  However, the Second Circuit has, in dicta, addressed the application of the “rule of completeness” embodied in the Federal Rules of Evidence to the journalists’ privilege:

The law of evidence embodies a rule of completeness requiring generally that adversaries be allowed to prevent omissions that render matters in evidence misleading. With regard to writings, one cannot introduce only the favorable portion of a document without the adversary successfully demanding production of the entire writing. Kenneth S. Broun et al., McCormick on Evidence § 93 (6th ed. 2007); Fed. R. Evid. 106. The same applies to testimony as to only part of a privileged communication: the remainder must also be produced.

Baker v. Goldman Sachs & Co., 669 F.3d 105, 111 (2d Cir. 2012); cf. United States v. Treacy, 639 F.3d 32, 44–45 (2d Cir. 2011).

A district court case decided before Baker shows how the applications of these principles might be limited in practice. In Lonegan v. Hasty, cv 04-2743 (NG) (VVP), 2008 WL 41445, at *5 (E.D.N.Y. 2008), defendants advanced an argument that plaintiffs had waived the privilege completely because the plaintiffs disclosed a portion of their notes of the interview with one of the sources in question. The court noted first that “any waiver by partial disclosure typically applies only when a party is attempting to gain some tactical advantage by a partial disclosure of privileged communications.” Moreover, waiver by partial disclosure “extends only to undisclosed communications about the same subject matter.” Lonegan v. Hasty, CV04-2743(NG)(VVP), 2008 WL 41445, at *5 (E.D.N.Y. 2008) (emphasis added). Thus, the court rejected defendant’s argument that the reporters privilege had been waived as to all sources and information.

At least one court in the Third Circuit has expressly held that partial disclosure of information does not waive the privilege as to other matters, Sklar, 752 F. Supp. at 1267, and such a principle is implicit in cases cited elsewhere in this outline in which courts have held that disclosure waives the privilege only as to the matter disclosed. See § VI.C.1 supra.

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

No reported decision of the Fifth Circuit specifically resolves whether a journalist's disclosure of some information from a source waives the privilege.

There is no statutory or case law addressing this issue.

There is no federal statutory or federal case law on this issue in the Seventh Circuit.

Fridell: "Voluntary disclosure of information covered by a privilege could constitute, but does not mandate, a waiver of the privilege." "Mentioning who is not an informant is not the same as indicating who is the informant." J.J.C. v. Fridell, 165 F.R.D. 513, 517 (D. Minn. 1995).

Disclosing some information to both parties, while retaining some undisclosed information, did not constitute a waiver in Michael, 2015 WL 8750643, at *5.

There is no Alabama statutory or reported case law addressing the application of the privilege when there has been a partial disclosure of information.

Alaska appellate courts have not had occasion to squarely address the existence or scope of a reporter's privilege. Various trial courts have recognized and applied the qualified constitutional privilege, and in doing so have not articulated circumstances constituting waiver of the privilege or standards for determining that the privilege has been deemed waived.

In Cooper Tire, the court found that the reporter did not waive the confidential source’s name by generally describing the documents at issue.  218 Ariz. at 59, 178 P.3d at 1183.

There are no cases addressing whether a reporter who has partially disclosed confidential information has waived the privilege as to the remaining, undisclosed information.

The statute expressly protects all unpublished information, providing that “‘unpublished information’ includes information not disseminated to the public whether or not related information has been disseminated.” Cal. Const. art. I, § 2(b); Cal. Evid. Code § 1070. Consequently, partial disclosure of information should not result in waiver of any information that was not actually disclosed. Id.; see also Playboy Enters., Inc. v. Superior Court, 154 Cal. App. 3d 14, 23, 201 Cal. Rptr. 207 (1984); Fost v. Superior Court, 80 Cal. App. 4th 724, 735, 95 Cal. Rptr. 2d 620 (2000). Allowing in camera review of the information sought should not be deemed a waiver of the reporter’s privilege. SCI-Sacramento, Inc. v. Superior Court, 54 Cal. App. 4th 654, 661-62, 62 Cal. Rptr. 2d 868 (1997).

The information published or broadcast is deemed waived by the publication or broadcast. However, such publication or broadcast does not waive the privilege regarding any of the unpublished or unbroadcast material. C.R.S. § 13-90-119(4).

No statutory or case law addressing this issue exists.

By waiving her privilege with respect to certain facts a reporter does not waive the privilege with regard to other facts for which she continues to claim the privilege. 10 Del. C. § 4325.

Under D.C. Code § 16-4704, “[t]he publication by the news media or the dissemination by a person employed by the news media of a source of news or information, or a portion of the news or information, procured while pursuing professional activities shall not constitute a waiver of the protection from compelled disclosure that is contained in section 16-4702.”

The statute expressly provides that a journalist “does not waive the privilege by publishing or broadcasting information.” § 90.5015(4), Fla. Stat. (2023). However, one court has held that if a journalist files information in the public records, the privilege is waived as to the information filed in the public records. See News-Journal v. Carson, 741 So. 2d 572, 574 (Fla. 5th DCA 1999).

Publication of “part of the information gathered does not waive the privilege as to all of the information gathered on the same subject matter because it ‘would chill the free flow of information to the public.’” In re Paul, 270 Ga. 680, 686, 513 S.Ed. 2d 219, 224 (1999).

There are no cases involving the media.

Illinois courts have held that publication of otherwise privileged source material waives the privilege only as to the specified information that has been published or broadcast. See Illinois v. Fort, 15 Media L. Rep. 2251, 2254 (Ill. Cir. Ct. 1988). In People ex. rel. Scott v. Silverstein, 89 Ill. App.3d 1039, 412 N.E.2d 692 (1980), the appellate court stated that the disclosure of general information and sources in affidavits, on television, and to two law enforcement officials did not constitute a waiver—suggesting that waiver of the privilege depends on the degree of specificity of the information disclosed and the size of the audience to which the reporter disclosed the information. See id. at 1044 (quoting Altemose Constr. Co. v. Building & Constr. Trades Council of Phila., 443 F. Supp. 489, 491 (E.D. Pa. 1977), which states that “[t]he submission of the affidavits to two law enforcement functionaries by the affiants is a far cry from thousands of occupants opening the windows of their respective apartments and shouting a message or the world to hear”).  The Silverstein court did not commit to a bright line rule regarding waiver; it confined its determination to the particular facts of that case.

There is no statutory or case law on this issue.

No reported cases address this issue.

There is no statutory or case law specifically addressing this issue. Based on the privilege statute quoted above, however, the author believes that most state courts would view a partial disclosure as partial waiver of the privilege, at a minimum.

Although there are no reported decisions on point, it is common for a journalist to testify as to the accuracy of information without there being a claim that the privilege has been waived. Cf. Ky. R. Evid. 509 (waiving privileges conferred in the context the Rules of Evidence only for significant disclosures concerning the privileged matter).

In Cinel v. Connick, the court held that "a court-initiated order for a sealed, in camera, production of information," does not waive the reporter's privilege. 792 F. Supp. at 498.

There is no other statutory language or Louisiana case law addressing whether the partial disclosure of information waives the privilege.

The Maine courts have not addressed the issue of partial disclosure.

The reporter's privilege is not deemed waived by partial disclosure of information. Specifically, the Maryland Shield Law establishes that: If any person covered by the statute disseminates . . . any portion of the news or information procured while pursuing professional activities, the protection from compelled disclosure under this section is not waived by the person. Md. Cts. & Jud. Proc. Code Ann. § 9-112 (e).

There is no case law discussing waiver of the privilege.

There have been no appellate cases discussing this precise issue in Michigan or in the Sixth Circuit. While the names of informants are likely protected, the entirety of the information divulged depends on the status of the information’s confidentiality at the state level. See MCL 767A.6(6).

Under the logic discussed in the previous sections, partial disclosure of information would not constitute a waiver of any privilege for any information other than what has been disclosed.

There is no statutory or case law addressing this issue.

There is no statutory or case law addressing this issue.

Partial disclosure is not waiver.

Statute protects against disclosure of unpublished or nonbroadcast "data of whatever sort not itself disseminated to the public through a medium of communication, whether or not published or broadcast information based upon or related to such material has been disseminated." Neb. Rev. Stat. § 20-145(5).

If the reporter discloses partial information from the source, the privilege will not be deemed waived. A reporter would likely not be permitted to provide partial information in defending a defamation or libel action and then claim the privilege for other information about the source. Diaz v. Eighth Judicial Dist. Court, 116 Nev. 88, 993 P.2d 50, 59 (2000). The statute must be invoked for the information in its entirety.

There is no statutory or case law addressing this issue.

If a newsperson makes a partial disclosure in a non-privileged context, it is a waiver only as to the materials disclosed. All other information is still protected by the privilege.  In re Schuman, 114 N.J. 14 (1989); Maressa v. N.J. Monthly, 89 N.J. 176 (1982); In re Venezia, 191 N.J. 259 (2007).

No New Mexico law specifically addresses this issue. But according to general evidentiary principles, “disclosure of any significant part of [a privileged] matter or communication” waives the privilege. Rule 11-511 NMRA.

See above, partial disclosure may be considered a waiver with regard to the particular information disclosed.

No reported case in North Carolina has addressed whether the journalist's disclosure of some information from the source waives the privilege.

North Dakota has not yet determined whether partial disclosure constitutes a waiver. Partial disclosure is one of the factors to consider in the judicial balancing test to determine if nondisclosure would result in a miscarriage of justice.

The Oklahoma statute recognizes two different aspects of privileged information: sources and unpublished information.  With respect to sources, the disclosure of the identity of one source of information would presumably not constitute a waiver of the privilege with respect to other sources of that or other information, although neither the language of the statute nor existing case law directly answer the question.  With respect to unpublished information, the statute expressly says that unpublished information is privileged from disclosure even if related information is disseminated to the public.

The shield statute protects unpublished information even when published information based upon or related to such materials has been disseminated. ORS 44.510(5).

Waiver of the Shield Law protections is limited only to the information “actually published or publicly disclosed . . . .” In re Taylor, 193 A.2d 181, 186 (Pa. 1963).

There is no Pennsylvania case law addressing the waiver of the First Amendment reporter’s privilege by partial disclosure of information.

In Fischer v. McGowan, 585 F. Supp. 978 (D.R.I. 1984), plaintiffs sought to compel disclosure of certain unnamed sources of an allegedly libelous article in an Australian newspaper about the financial troubles of the America's Cup yacht. The author of the article, who had not been named as a defendant, claimed privilege and moved to quash. Drawing on decisions from other jurisdictions, the court found that the reporter had not waived his privileges under the shield law by disclosing some of his sources or by providing a generic description of the undisclosed sources.

If waiver is to be established by the party seeking to overcome the privilege, it is most likely to be established by circumstantial evidence. Such evidence might include the partial disclosure of information within the scope of the claim of privilege to someone not involved in the gathering and dissemination of news. As a parallel, the disclosure by a client of information within the scope of the attorney client privilege is a waiver of that privilege.

There is no pertinent case law on this issue.

There is no statutory or case law on this issue.

Partial disclosure does not waive disclosure of unpublished or un-broadcast information.

There is no statutory or case law addressing this issue.

The Vermont Shield Law states that “[t]he publication or dissemination of news or information shall not constitute a waiver of the protection from compelled disclosure. . . .”  12 V.S.A. § § 1615(c).  Likewise, in a trial court decision that was ultimately reversed, the court held that the reporter did not waive his privilege by publishing part of the information that he gathered.  Spooner v. Town of Topsham, 2006 Vt. Super. LEXIS 24, *19-21 (reversed and remanded).

There is no case law addressing whether the privilege is waivable.

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

Section 4 of the shield statute provides that publication or dissemination does not waive the privilege. See RCW 5.68.010(4).

There is no West Virginia caselaw or statute addressing whether a journalist may be deemed to have waived the privilege. Because the privilege is constitutional in nature, it is likely the privilege may never be deemed to have been waived.

Under the shield law, the privilege is not waived by a reporter's partial disclosure of information.  Wis. Stat. § 885.14(4).

Not applicable.