e. Additional material

It is helpful to append to the motion all articles and/or photographs that were published about the topic of the testimony sought, in order to convince the court that the material sought is not needed, does not go to the heart of the matter being litigated and can be obtained from other readily identifiable alternative sources.

The Middle District of Georgia denied a civil defendant’s motion to compel a transcript of an interview of the plaintiff, where a transcript did not already exist and a copy of the interview that aired was provided to the defendant.  Castleberry v. Camden County, 331 F.R.D. 559 (M.D. Ga. 2019).

Although not required under any reported First Circuit decision or procedural rule, a motion to quash should be supported by a reporter’s affidavit. In the affidavit, the reporter may attest to the fact that he promised the source confidentiality, that his work as a reporter depends on the ability to promise sources confidentiality, and that his career as a journalist would be compromised if he were required to reveal the confidential source.

Every motion must be accompanied by a memorandum of law, which should contain all relevant legal authorities. Some local rules may require additional attachments; for example, often a copy of the subpoena to be quashed must be submitted along with the motion. It is important to check the rules of the particular judge before whom you are moving to quash.

Neither the applicable rules nor case law in the Third Circuit appear to address this point.

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

Although no reported decision of the Fifth Circuit addresses whether any specific additional material should be attached to motions and memoranda to quash asserted by media organizations and journalists, the Fifth Circuit has recognized that the press, like other parties, "has a relevant and protectible interest in not being unduly burdened, as, for example, by overly broad subpoenas for large amounts of data of dubious relevance." United States v. Smith, 135 F.3d 963, 971 (5th Cir. 1998). Such a burden, however, "is case specific." Id. Further, the court reasoned that "[w]e are pointed to no empirical basis for assertions that the media will avoid important stories or destroy its archives in response to rare requests for criminal discovery." Id. As such, a party challenging a subpoena based on the burden it imposes on the media as an institution would be advised to submit any "empirical" evidence supporting that proposition -- as well as evidence of the specific burden imposed by the subpoena at issue in the case.

Attached to a motion to quash should be (1) a memorandum arguing the law and (2) a copy of the subpoena with its attachments. Attaching other materials is not recommended.

There is no statutory or case law addressing this issue.

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.

Generally, copies of the following may be helpful to the court and should be attached to a motion to quash: 1) A copy of the subpoena; 2) Copies of authoritative or persuasive cases cited in the motion to quash; and 3) Copies of any newspaper articles relevant to the subpoena request.

Because Alaska's appellate courts have yet to recognize a reporter's privilege or otherwise address it in any significant way, it is important that in any case in which a motion to quash is filed, or a motion to compel is defended, the press create a record that will provide the trial judge and any reviewing court with a basis for understanding and applying the privilege sought. This can be done most effectively, in the opinion of the author, through affidavits of professional journalists, including reporters and editors with relevant knowledge and experience, or even counsel, that can support the arguments being made in the accompanying legal memorandum. Make the judge understand why this privilege is important to the press, why broader public interests are being served by this seemingly parochial effort to be "treated differently," how this discrete instance should be viewed as part of an ongoing effort to involve the press in matters that reporters are supposed to be writing about and the problems this poses for your client's news operation, public perceptions of objectivity, and so forth. Don't assume the judge (or reviewing court) is aware of the principles that you believe underlie the privilege, or understands why they are important, or understands how your news operation works, or the impact that having to constantly respond to similar subpoenas will have.

No additional materials are mandated by law.

In most cases, the subpoena will be attached as an exhibit to a motion to quash. Factual matters are established by an affidavit filed as an exhibit to the motion.

The Rules require “[a]ny motion involving the content of a discovery request,” including motions to compel answers or the production of documents at a deposition, to be accompanied by a separate statement of disputed matters. California Rule of Court 3.1020. However, it is unlikely that this Rule applies to a subpoena issued to a reporter, particularly when the motion is brought before any testimony is taken.

In addition, the motion to quash can seek an award of attorneys’ fees and costs if an argument can be made that the motion was “opposed in bad faith or without substantial justification or that one or more of the requirements of the subpoena was oppressive.” Cal. Code Civ. Proc. § 1987.2.

No additional materials must be attached to the motion. However, a newsperson should attach any document or information it believes will help the court evaluate the law and the facts. One example of a helpful document is "Agents of Discovery: A Report on the Incidence of Subpoenas Served on the News Media," the biennial survey of the incidence of news media subpoenas published by the Reporters Committee For Freedom of the Press.

Connecticut judges are not uniformly familiar with the Shield Law or the constitutional principles underlying the privilege. It is recommended that movants file a brief memorandum of law in support of their motion to quash, setting forth the requirements of the Shield Law and explaining the nature, extent and source of the privilege on which the motion is based, and applying these principles to the particular facts of the case. The subpoena and, where applicable, notice of deposition ought to be exhibits to the motion itself (as contrasted to the memorandum of law: the motion is a pleading, and will be part of the printed record on appeal; the memorandum is not).

In addition, an Appearance form (JD-CL-012) should be filed to ensure the matter is in the court’s record and that counsel will receive all filings and court notices and calendars. The reporter technically is not freed from the subpoena until the motion to quash is granted, and therefore if the motion to quash is argued at the time the reporter is ordered to appear for testimony, the reporter should be available on short notice, though not necessarily in the courtroom or even at the courthouse.

Case law suggests that a court will consider supporting documentation filed along with a motion to quash.  E.g., Peck v. City of Boston (In re Slack), 768 F. Supp. 2d 189, 191 (D.D.C. 2011) (noting that the court reviewed “memoranda filed in support and opposition to the motion, the accompanying declarations, and applicable law” and expressly citing reporter’s declaration).

Although none is required by statute, practicality and timing mandate attaching a notice of the motion, certification of service, a brief, affidavits of reporter asserting the privilege, affidavit of editor describing the chilling effect of compelled testimony on freedom of the press, and a copy of the subpoena.

No case law or statutes addressing this issue exist.

As stated above, an affidavit from the recipient of the subpoena establishing his or her entitlement to the privilege sometimes is helpful when it is not clear from the recipient’s title or place of employment that he or she is a professional journalist.

Also, as most evidentiary hearings on motions to quash occur in the circuit courts, many relevant judicial opinions are either unpublished or published only in unofficial reporters such as the Media Law Reporter. When unpublished or Media Law Reporter cases are cited in support of a motion, copies of these cases should be provided to the court and to opposing counsel.

Apart from the subpoena, additional materials appropriate for a motion to quash would depend on the circumstances of the case.

No other materials need to be attached to motions and memoranda to quash. In practice, a motion to quash is generally accompanied by a memorandum or brief in support of the motion, and an affidavit or declaration of the objecting party or his/her attorney explaining the factual reasons for quashing the subpoena.

There are no prohibitions upon the nature of material that might be attached to support the motion to quash, other than the general requirement that it be admissible for purposes of consideration by the court. Idaho federal court rules limit the length of briefs submitted in support of motions; however, there is no express limitation upon appendices and the like. (Local practice generally dictates that the appendices or other supporting material be filed as attachments to an affidavit, rather than simply appended to a motion or brief.) The concerns are more practical than rule-driven--i.e., the busy judge may be more annoyed than grateful for the book length appendix dumped on his or her desk a few days before a hearing on a motion to quash.

There is no additional material.

The Reporters Committee for Freedom of the Press often recommends that a copy of “Agents of Discovery: A Report on the Incidence of Subpoenas Served on the News Media,” its biennial survey of the incidence of news media subpoenas, be attached to a motion to quash based on the reporter's privilege.

A motion should be accompanied by a memorandum of law and may be delivered to the court and opposing counsel along with copies of cases.

It is unclear whether the filing of additional material documenting the burdensome nature of subpoenas is helpful in connection with the filing of a motion to quash.

No additional materials are required to be attached to a motion to quash.

Affidavits and other exhibits attached to a motion to quash indicating the burdensome of subpoenas addressed to the press could be helpful because courts often find it hard to accept the burdensomeness argument.

An affidavit should be filed in support of a motion to quash substantiating the basis for the privilege claimed or other grounds to quash the subpoena.

Md. R. Civ. Proc. 3-311(b) -- "A party shall attach as an exhibit to a written motion or response any document that the party wishes the court to consider in ruling on the motion or response unless the document is adopted by reference as permitted by Rule 3-303(d) or set forth as permitted by Rule 3-421(g)."

See also, Md. R. Civ. Pro. 2-311.

The Reporters Committee for Freedom of the Press often recommends that a copy of "Agents of Discovery: A Report on the Incidence of Subpoenas Served on the News Media," its biennial survey of the incidence of news media subpoenas, be attached to a motion to quash based on the reporter's privilege.

The motion should be as short and to the point as possible since courts are busy and may view objections to subpoenas as a nuisance. Obviously, the attachment of an affidavit from the reporter is appropriate. However, brevity is the way to a judge’s heart.

Motions should be accompanied by a memorandum of law and must be accompanied by a proposed order. Minn. R. Gen. Prac. 115.04. Affidavits and exhibits may be submitted. Minn. R. Gen. Prac. 115.04.

There is no statutory or case law addressing this issue.

A motion to quash should be supported by a brief or memorandum filed with the motion or within five days of it. How a court may react to particular attachments to such a memorandum will depend on the particular judge and case.

Not specified.

There are few New Hampshire cases that address this issue. At a minimum, the moving party should consider obtaining affidavits from the reporter, editor and/or publisher setting forth the harm to press freedoms that would occur if the motion to compel is granted.

Because the Shield Law is so extensive only citation to the law and a brief outlining the relevant case decisions should accompany the motion; no treatise information is necessary.

Receptiveness to attachments varies from judge to judge. In any event, the subpoenaed party should take care to research and obey any local rules that may limit the number of attached pages. See, e.g., N.M. 2d Judicial Dist. R. 115(B) (25 pages, except by leave of court).

A motion to quash or for a protective order should include a notice of motion, supporting affidavits, a memorandum of law and an affirmation of good faith effort to resolve the issues raised by the motion. See Uniform Rule 202.7(a). No notice of motion is required for an order to show cause, though the affirmation of good faith must still be included. SeeUniform Rule 202.7(d). In addition, New York State courts require that a "blue back," a blue form containing the case caption, index number and other pertinent information, be attached to the back of the papers filed with the court. Although not required, it may also be advisable to append a draft order for the court to sign, which states that the relief the reporter is seeking has been granted. This not only saves the court the trouble of drafting an order, but it also allows the reporter to control (at least initially) the language of the order.

There are no additional materials that need to be attached to motions to quash. However, depending on the particular circumstances, a reporter may want to submit an affidavit with the motion or other documents or materials relied upon in support of the motion.

There are no required materials that should be attached to motions and memoranda in opposition to a motion to compel with a subpoena. However, courts are generally receptive to any relevant attachments.

There are no additional materials that must be attached to a motion to quash. However, if news reports published in print, on air or online demonstrate that the subpoenaing party can obtain information from sources other than the reporter who was subpoenaed, it is advisable to attach those news reports and links to the online news reports to the motion to quash.  It is often helpful to attach affidavits of news personnel to establish the burdensome nature of the subpoena.  Also, attach the subpoena to the motion to quash.

We have not traditionally attached other material to the motion, but there is no procedural prohibition from doing so in an appropriate case.

No additional material is required.

Pennsylvania courts are not unreceptive to additional materials. If additional materials support a reporter’s motion to quash, such as materials showing other available sources of information or establishing that the testimony is not crucial, then they should be filed in conjunction with the motion.

No additional material need be attached to the motion.

State court judges generally have too many cases, too little help and too little time to read expansive material submitted in support of motions. Since all motions are decided after oral argument, the customary practice is to keep the motion short and to the point, and to argue in the same fashion.

None.

There is no need for other material to be attached to the motion to quash the subpoena.

As a practical matter, the journalists should attach to the Motion to Quash an affidavit supporting the motion to ensure that the Court knows that the reporter falls within the definition of journalist contained in the shield law.

Courts generally accept attachments such as the Reporters Committee for Freedom of the Press report “Agents of Discovery,” although the extent to which courts consider such materials in making decisions is difficult to assess.

There is no prohibition against filing additional material attached to a motion to quash provided that material is relevant and admissible. An explanation as to why production is burdensome is, however, required. An affidavit of compliance with V.R.C.P. 26(h) may be attached to a motion to quash.

Not applicable.

There is no specific requirement of additional material.

The trial court rules in West Virginia actually require that copies of any case decided by a court other than the West Virginia Supreme Court or the United States Supreme Court and cited in support of a motion, such as a motion to quash, must be attached to the motion. Because of its importance, it often is helpful to attach a copy of the Hudok case for easy access by the trial court.

A copy of section 885.14 should be attached to the motion to quash for ease of reference.

Affidavits or other materials that help the judge to understand the potential for a “chilling effect” that the subpoenas on the news media will have on the free flow of information to the public should be attached to the motion to compel. As subpoenas have been infrequently issued in Wyoming, judges may focus on the specific case at hand and not examine the larger picture. A federal district court in Wyoming in applying the balancing test in determining whether to quash a subpoena for a photographer’s unpublished photographs found “no credible argument that any pernicious effects would result from production of these photographs.” Order on Appeal from Magistrate's Order, Wilson v. Amoco, Docket No. 96-CV-0124-B (D. Wyo. filed April 8, 1998). The court found that it was hard-pressed to articulate any burden on the press other than the administrative one of actually copying and providing the photographs. Id. Courts must be educated regarding the adverse effect on the news media when the government or private parties use reporters as their investigators. That education must start with the motion to quash.