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d. Other elements

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  • 1st Circuit

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

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  • 2nd Circuit

    The following four cases discuss waiver in situations in which the reporter has not revealed or partially disclosed information from a source.

    Failure to provide a privilege log may waive the qualified privilege, as it would “in the same manner as any other litigant—providing a privilege log enumerating the documents as to which privilege is claimed and including as to each such information as may be necessary to make out his claim of qualified journalist privilege.” See In re Application of Chevron Corp., 736 F.Supp.2d 773, 782 (S.D.N.Y.2010); In re Application of Chevron Corp., 709 F. Supp. 2d 283, 306 n.40 (S.D.N.Y. 2010) (“The failure to [submit a log] generally constitutes a waiver of any claim of privilege”), aff'd sub nom. Chevron Corp. v. Berlinger, 629 F.3d 297 (2d Cir. 2011); but see Schoolcraft v. City of New York, 10 CIV. 6005 RWS, 2014 WL 1621480, at *5 (S.D.N.Y. Apr. 22, 2014).

    In Inside Radio, Inc. v. Clear Channel Comm. Inc., 2002 U.S. Dist. LEXIS 11982 (S.D.N.Y. July 3, 2002), Inside Radio, Inc. ("IRI") alleged Clear Channel Communications ("CCC") libeled IRI in various articles when it asserted that IRI knowingly published false statements about CCC. As part of its defense, CCC requested the identity of the confidential source for IRI's stories about CCC. The question for the court was whether IRI waived privilege by putting the identity of its source at issue in asserting its claims against CCC. Id. at *8. In determining this, the court applied the Burke standard used to determine disclosure of sources. Id. at *10. Because the identity of IRI's source was (1) highly material and relevant, (2) necessary to the defense because IRI claimed CCC libeled it by charging it deliberately lied, and (3) unable to be obtained through other means, IRI had waived the privilege. Id. at *19.

    The issue in Driscoll v. Morris, 111 F.R.D. 459 (D. Conn. 1986) was the same as Inside Radio. A reporter brought a defamation claim alleging defendant falsely informed people that he illegally obtained grand jury information from a confidential source. As an element of damages, plaintiff claimed the defendant's statements affected his relationships with confidential sources. Because plaintiff put the identity of his sources at issue, he waived the privilege. Id. at 464.

    In United States v. Markiewicz, 732 F. Supp. 316 (N.D.N.Y. 1990), the court acknowledged that "at least one court has determined that a reporter's qualified privilege is waived if he or she submits to an interview or files an affidavit detailing the substance of the conversation with respect to which he is asked to testify." Id. at 320 (referring to Pinkard v. Johnson, 118 F.R.D. 517, 523 (M.D. Ala. 1987)). The issue of waiver was not relevant to the present case.

    In Pugh v. Avis Rent A Car Sys., Inc., 1997 U.S. Dist. LEXIS 16671, 26 Med. L. Rptr. 1311 (S.D.N.Y. Oct. 28, 1997), the court held that the presence of third parties not entitled to assert the privilege at interviews conducted by a media entity (CBS in this case) does not constitute an automatic waiver of the privilege by the media entity. A subpoena for outtakes of the interviews was quashed.

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  • 3rd Circuit

    Courts in the Third Circuit do not appear to have expressly addressed this point in a relevant context.

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  • 4th Circuit

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

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  • 5th Circuit

    No reported decision of the Fifth Circuit addresses circumstances where courts have found that a journalist, through her own actions, has waived the reporter's privilege.

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  • 6th Circuit

    There is no statutory or case law addressing this issue.

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  • 7th Circuit

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

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  • 8th Circuit

    No Eighth circuit case law addresses other elements in the context of the reporter's privilege.

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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 any other issues concerning waiver of the reporter's privilege.

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  • Alaska

    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.

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  • Arizona

    There is no statutory or case law addressing this issue.

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  • Arkansas

    There are no cases in which the court has addressed any other circumstances by which the reporter will be deemed to have waived the privilege through the reporter's own actions.

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  • California

    There is no statutory or case law addressing this issue.

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  • Colorado

    There is no Colorado case law addressing other elements.

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  • D.C. Cir.

    No statutory or case law addressing this issue exists.

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  • Delaware

    Not litigated.

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  • District of Columbia

    No statutory or case law addressing this issue exists.

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  • Florida

    If a journalist files information in the public records, one court has held that 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).

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  • Illinois

    In People ex. rel. Scott v. Silverstein, 89 Ill. App.3d 1039, 412 N.E.2d 692 (1980), the court held that a reporter’s “regular contacts” with an Assistant Attorney General were within the role of a newspaper reporter and that information given to the Assistant Attorney General by the newspaper reporter did not constitute a waiver of the reporter’s privilege.  However, “[i]f ‘[the reporter] abandoned the role of newspaper reporter and assumed the duties of an investigator,’ then arguably he waived his reporter’s privilege.” Id. at 1045.

     

    In holding that a documentary filmmaker who had joined plaintiff’s legal team waived the right to assert the reporter’s privilege in response to defendant’s subpoena, the district court in Simon v. Northwestern Univ., 321 F.R.D. 328, 45 Media L. Rep. 1961 (N.D. Ill. 2017) noted that “[t]he Statute is silent on waiver,” and “the only guidance the Silverstein court provided on what does constitute waiver is the statement that a reporter arguably waives the privilege when she acts outside of the scope of a reporter and assumes the duties of an investigator.” The court held that when the filmmaker “filed an appearance on Plaintiff’s case, he abandoned the role of reporter and transitioned to the role of legal advocate” and could not “artificially divest himself of that status in order to take advantage of the reporter’s privilege.”  Id. at 332.  A waiver under Silverstein is not limited to “an express disclosure of privileged information to a third party” and “acting as a reporter and a lawyer on the same matter” was “the equivalent of an explicit waiver.”  Id. at 333-34.

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  • Indiana

    There are no other elements.

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  • Iowa

    Iowa case law does not suggest any further required elements than those discussed in this document.

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  • Kansas

    There is no statutory or case law addressing this issue.

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  • Kentucky

    No reported decisions.

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  • Louisiana

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

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  • Massachusetts

    There is no case law discussing waiver of the privilege.

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  • Minnesota

    No Minnesota case law or statutory provisions apply here.

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  • Mississippi

    There is no statutory or case law addressing this issue.

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  • Missouri

    There is no statutory or case law addressing this issue.

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  • Montana

    The Montana statute specifically states that the privilege is waived only on the voluntary choice of the reporter, § 26-1-903, MCA.

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  • New Hampshire

    There is no statutory or case law addressing this issue.

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  • New Mexico

    No published New Mexico appellate opinions have discussed the ways in which a reporter might waive the privilege.

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  • North Carolina

    No North Carolina case has found other elements or circumstances where the journalist, through his or her own actions, has waived the privilege.

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  • North Dakota

    There is no North Dakota case law addressing other factors that should be considered in determining whether a reporter has waived the privilege. However, the North Dakota Supreme Court ruled in Grand Forks Herald v. Dist. Court in and for Grand Forks Cnty., 322 N.W.2d 850 (N.D. 1982) that one of the factors to consider on the disclosure issue is whether the media source has already published a photograph that is a part of a group of photographs that are sought in discovery.

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  • Oklahoma

    There are no Oklahoma cases discussing this issue.

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  • Pennsylvania

    There is no Pennsylvania case law addressing other elements of waiver of the Shield Law or First Amendment privileges.

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  • South Carolina

    There are no court decisions discussing elements of waiver of the journalist's privilege in South Carolina, but a situation that might lead to a finding of waiver exists where a publisher provides a contact sheet of unpublished photographs of an automobile accident scene to one side in a civil case and then attempts to resist a subpoena for the same photographs by the other side.

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  • South Dakota

    There is no pertinent case law on this issue.

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  • Tennessee

    There is no statutory or case law on this issue.

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  • Utah

    There is no statutory or case law addressing this issue.

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  • Vermont

    There are no reported Vermont cases discussing whether the reporter’s privilege may be waived.

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  • Virginia

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

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  • Washington

    Washington's case law has not yet squarely addressed this issue. See Section II.A (Shield law statute) above.

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  • West Virginia

    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.

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  • Wyoming

    Not applicable.

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