E. Confidential and/or nonconfidential information
In Silkwood v. Kerr-McGee Corp., 563 F.2d 433 (10th Cir. 1977), a documentary film maker investigating the death of Karen Silkwood was subpoenaed to give a deposition in a suit by Silkwood's estate against Silkwood's employer for civil rights violations. The district court denied the non-party, film maker's motion for protective order during pretrial proceedings. At the deposition the film maker refused to answer any questions involving the disclosure of information he felt was confidential. The Tenth Circuit's opinion reversing and remanding recognizes that confidential information is subject to a First Amendment qualified privilege.
District Courts within the Tenth Circuit have agreed that the First Amendment privilege applies as well to non-confidential information. They have disagreed over whether the burden on a party seeking to compel testimony about or production of non-confidential information is any lower than that for a party seeking to obtain confidential information.
In United States v. Foote, No. 00-CR-20091-01-KHV, 2002 WL 1822407 (D. Kan. Aug. 8, 2002), the United States District Court for the District of Kansas denied the non-party reporter's motion to quash subpoena. The court extended the reporter's privilege to non-confidential information. Applying the Silkwood balancing factors, the court found that the government "has made a sufficient showing regarding the relevancy, need and nature of the proposed testimony to defeat [the reporter's] Motion to Quash." The court noted that it was unable to apply the Silkwood balancing test to specific testimony from the reporter that may be privileged in nature, "[w]ithout knowing the specific information that will be sought." Id. at *3.
In Re/Max Int'l v. Century 21 Real Estate Corp., 846 F. Supp. 910, 911 (D. Colo. 1994) (Babcock, J.), the United States District Court for the District of Colorado held that the First Amendment reporter's privilege extends to non-confidential information (quoting Loadholtz v. Fields, 389 F. Supp. 1299, 1302-03 (M.D. Fla. 1975)). Where the non-confidential information was found not to be centrally relevant to the party's claim (because it was intended to be used only for impeachment purposes), the privilege was not overcome.
In Weathers v. American Family Mut. Ins. Co., 17 Med. L. Rptr. 1534 (D. Kan. 1989) and 17 Media L. Rptr. (BNA) 1846 (D. Kan. 1990), the court denied non-party reporters' motion to quash subpoena and motion for protective order. The reporters wrote an article about charges of arson brought against Weathers, the plaintiff. Later, American Family sought the reporter's 274 photographs of the plaintiff to defend against a libel claim. In the 1989 opinion, the court decided the references to the information sought were too vague to perform the Silkwood four-factor balancing test. The reporters were ordered to appear at the deposition, and during their appearance the reporters' invoked their privilege. Next, the insurance company sought to compel disclosure of the photos. In the 1990 decision, the court applied Silkwood's four-factor balancing test and found that the photographs were relevant to defend against the plaintiff's claim for physical and emotional injuries, somewhat necessary for a defense, and unavailable from any other sources. Finally, since the photographs were not confidential the court granted the motion to compel.
In another case, the District Court for Kansas again suggested that the reporter's privilege is easier to overcome when the subpoenaing party seeks only non-confidential information. See Farrington v. Crupper Transp. Co., 17 Media L. Rptr. (BNA) 1781 (D. Kan. 1990). The defendants served a subpoena duces tecum on a non-party (The Topeka Capital-Journal) for production of all photographs and negatives regarding an accident reported on by the Journal. The motion to quash and motion for protective order were denied, because the defendants showed the non-confidential photographs and negatives were relevant and otherwise unavailable, and these factors outweighed the First Amendment interest of the media to refuse to release the information.
In another case from the District Court of Kansas, the court noted that while the Kansas statutory journalist privilege extended protection to non-confidential information, the Tenth Circuit has yet to rule on whether the federal privilege is equally broad. Thomas v. City of Wichita, No. 13-1040-CM, 2014 U.S. Dist. LEXIS 122476, at *8 (D. Kan. Sept. 3, 2014). In Thomas, the defendants sought the nonparty reporter’s testimony as to the authentication and accuracy of an article containing a statement provided by the plaintiff that supported defendants’ defense. The court held that Silkwood supported disclosure because the reporter was the only person who could testify as to the validity of the published statement, and because the statement went to the heart of the plaintiff’s claims and the defendants’ defenses.
In the unpublished decision of Prager v. Campbell Cty. Mem’l Hosp., the court held that a reporter’s photographs of a public event were not protected by the privilege. No. 10-CV-0202-J, 2011 U.S. Dist. LEXIS 160591 (D. Wy. May 18, 2011). In Prager, the plaintiff was injured in a single-car rollover in which there were no eyewitnesses and the first responders’ video of the scene had been inadvertently destroyed. The reporter had arrived at or near the time of the first responders and took photographs of the incident. The plaintiff alleged injuries as a result of the defendant hospital’s and doctor’s failure to diagnose a neck injury. The court found that “given the nature of these photographs (i.e., they were not taken from a secret location or of a secret event),” and the fact that the photographs were not obtained from a source under promises of confidentiality, no privilege existed. Id. at *5. The court determined the same conclusion resulted even if the privilege was applicable because the photographs were relevant to the injuries that were or were not suffered by the plaintiff and no other source could provide this information.
Although the Eleventh Circuit has only expressly addressed protections for confidential information or sources, it has affirmed a district court’s decision quashing a subpoena to a media company for non-confidential video footage. United States v. Capers, 708 F.3d 1286, 1302-03 (11th Cir. 2013). In addition, federal district courts throughout the Eleventh Circuit have held that the test for overcoming the privilege remains the same even if the information was not obtained from a confidential source. See, e.g., Abrams v. Tuberville, 2013 WL 12244457, *1 n.2 (M.D. Ala. Aug. 15, 2013) (applying Caporale test to information about a named source); United States v. Fountain View Apartments, Inc., 2009 WL 1905046, *2 (M.D. Fla. July 1, 2009) (“[Caporale] standard applies even when the source of the information provided to the reporter is not confidential.”); Flynn v. Roanoke Companies Group, Inc., 2007 WL 4564113 (N. D. Ga. Dec. 21, 2007) (recognizing a federal common law reporter’s privilege for non-confidential material); United States v. Blanton, 534 F. Supp. 295, 297 (S.D. Fla. 1982) (“Although no confidential source or information is involved, this distinction is irrelevant to the chilling effect enforcement of the subpoena would have on the flow of information to the press and public.”); Loadholtz v. Fields, 389 F. Supp. 1299, 1301-02 (M.D. Fla. 1975) (recognizing that in a civil case the public's interest in the journalist's privilege often outweighs the private interest in compelled disclosure).
The First Circuit courts will give more protection to information obtained from confidential sources than information obtained from sources who were not promised confidentiality. The cases involving reporters protecting the dissemination of information obtained without a promise of confidentiality often arise in the context of “outtakes,” or portions of interviews (often videotaped) that are never aired by the media. In these cases, the interviewee’s identity is known, and he usually expects that the information contained in the outtakes could be publicly aired.
The First Circuit noted in United States v. LaRouche Campaign that where “there is no confidential source or information at stake, the identification of First Amendment interests is a more elusive task.” 841 F.2d 1176, 1181 (1st Cir. 1988). However, it also stated, “We discern a lurking and subtle threat to journalists and their employers if disclosure of outtakes, notes, and other unused information, even if non-confidential, becomes routine and casually, if not cavalierly, compelled.” Id. at 1182. The court held that in these cases, before granting access to the media’s non-confidential information, courts should consider the importance of maintaining journalists’ editorial discretion, the huge burden on the media of frequent subpoenas, and the fear that reporters could be forced to become “an investigative arm of the judicial system.” Id. The First Circuit in LaRouche ordered an in camera review of the requested information; however, the court stated: “we . . . rely on sensitive district court conduct of in camera reviews to respond to the generalized First Amendment concerns that would be triggered by too easy and routine a resort to compelled disclosure of nonconfidential material.” Id. at 1183.
In Lynch v. Riddell, a local television station interviewed a football player who was paralyzed while playing. No. 91-CV-6680, 1992 U.S. Dist. LEXIS 15725, 35 Fed. R. Serv. 2d 185 (D. Mass. 1982). After the player sued the manufacturer of his football helmet, the manufacturer subpoenaed the television station for the outtakes of its interview with the player. The federal magistrate held that the First Amendment was not implicated in this case, because neither the player nor the reporter ever intended for the player’s identity or the interview itself to be confidential. The court found that, “There is no basis [in] . . . Federal constitutional law . . . for the proposition that a reporter has a privilege to withhold relevant evidence in a civil case where that evidence will neither disclose a confidential source nor disclose material given by a known source in confidence.” Id. at *8.
In Russo v. Geagan, spectators of a rally sought a news station’s videotape of an entire rally, even though the station had only aired portions of this tape. No. 82-3823, 1983 U.S. Dist. LEXIS 18658, at *3, 35 Fed. R. Serv. 2d 1403 (D. Mass. 1983). The federal magistrate in Russo recognized that while the information sought was not confidential, production of a reporter’s non-published materials can constitute “a significant intrusion into the newsgathering and editorial processes.” Id. The court found that the request was not made “for the sake of exposure” or to harass a reporter or chill a particular point of view. Id. at *5. Since the information was clearly relevant to the requestor’s lawsuit, and the information had not been obtained on the basis of a pledge of confidentiality, the court ordered the media to release the entire videotape. Id. at *10.
In McFadyen v. Duke Univ., No. 2:12-mc-196-JHR, 2012 WL 4895979 (D. Me. Oct. 12, 2012), a federal magistrate granted Duke University’s motion to compel a non-party author, who had written on the Duke lacrosse scandals, to disclose his communications with the plaintiff lacrosse players, finding he did not “see how compelling [the author] to reveal what the plaintiffs told him will chill his efforts to obtain information about the Duke lacrosse scandal from other individuals. People who bring suit must expect that their prior statements that are relevant to their claims cannot be hidden from those whom they are suing.” Id. at *4. Duke withdrew its subpoenas before the magistrate’s decision was reviewed by the district court judge.
The reporter's privilege in the Second Circuit is strongest when confidential information is sought. See infra Section VI.A&B for the tests to compel disclosure of confidential and non-confidential materials. Confidential materials have included: confidential sources, Baker v. F & F Inv., 470 F.2d 778 (2d Cir.), cert. denied, 411 U.S. 966 (1973); documents provided confidentially, Citicorp v. Interbank Card Ass'n, 478 F. Supp. 756 (S.D.N.Y. 1978); research underlying an article, United States v. Burke, 700 F.2d 70 (2d Cir.), cert. denied, 464 U.S. 816 (1983); and a former reporter's confidential notes and diaries reflecting conversations with sources retained by a newspaper, United States v. Winans, 612 F. Supp. 827 (S.D.N.Y. 1985).
Non-confidential materials, which are generally unpublished materials that were gathered with no expectation of confidentiality, have included: unedited video outtakes, Gonzales v. National Broadcasting Co., 194 F.3d 29 (2d Cir. 1999); In re Chevron Corp., 709 F. Supp. 2d 283, 295 (S.D.N.Y. 2010), aff'd sub nom. Chevron Corp. v. Berlinger, 629 F.3d 297 (2d Cir. 2011); audiotapes of interviews, In re Ramaekers, 33 F. Supp. 2d 312 (S.D.N.Y. 1999); tape recordings of telephone conference calls which were not subject to an agreement of confidentiality, PPM America, Inc. v. Marriott Corp., 152 F.R.D. 32 (S.D.N.Y. 1993); tape-recorded news conferences, Don King Prods., Inc. v. Douglas, 131 F.R.D. 421 (S.D.N.Y. 1990); and a reporter's testimony confirming published statements, SEC v. Seahawk Deep Ocean Tech., Inc., 166 F.R.D. 268 (D. Conn. 1996).
Courts in the Third Circuit have explained that whether the information sought was obtained under a promise of confidentiality is one factor to be considered when balancing the competing interests at stake but is not a required element of the privilege. See, e.g., Criden, 633 F.2d at 355-56 (discussing at length value of confidential sources and observing that need to maintain confidentiality is underlying reason for reporter's privilege); Altemose Constr. Co., 443 F. Supp. at 491 ([T]his qualified privilege can even apply when the news source and, perhaps, a portion of the withheld writing, are not confidential.”). In cases involving non-confidential information, courts generally will permit a lesser showing to overcome the privilege than in cases involving confidential information. See, e.g., Cuthbertson I, 630 F.2d at 147 ("[T]he lack of a confidential source may be an important element in [the] balancing [test]"); In re Grand Jury Empaneled Feb. 5, 1999, 99 F. Supp. 2d at 501 ("The seeker of information is required to prove less where, as here, the information sought is nonconfidential and the source self-avowed. Accordingly, the government should only have to establish that the information sought is necessary for the grand jury's purposes."); Doe v. Kohn, Nast & Graf, P.C., 853 F. Supp. 147, 149-50 (E.D. Pa. 1994) (non-confidentiality of information is "an important factor favoring disclosure"); Parsons, 778 F. Supp. at 218 (same); Siroky, 2018 U.S. Dist. Lexis 49114, at *15 (same).
In addition, a confidential relationship between reporter and source can be implied. For example, in a case involving anonymous sources, one district court observed that an "implied confidential relationship" can arise when information is transmitted by anonymous sources. Thus, "there need not be an explicit promise of confidentiality for the news gatherer to invoke his or her privilege." In re Grand Jury Subpoena of Williams, 766 F. Supp. at 372.
It is well established in the Fourth Circuit that when a reporter invokes a privilege to protect confidential information — information obtained by a news gatherer under a promise of confidentiality — in a civil litigation, the court will use the LaRouche balancing test to determine whether the privilege should be upheld. Ashcraft, 218 F.3d at 287 (citing LaRouche, 780 F.2d at 1139). In a criminal proceeding, the LaRouche balancing test has no application and the reporter is not entitled to a privilege, even for confidential information, absent a showing of bad faith or other such improper motive. United States v. Sterling, 724 F.3d 482, 492 (4th Cir. 2013). However, the Fourth Circuit in Shain did not explicitly require both confidentiality and vindictiveness for a successful privilege claim. See 978 F.2d at 853.
Concerning nonconfidential information — information obtained other than through a promise of confidentiality — the law in the Fourth Circuit entitles reporters to no privilege in criminal proceedings, but is less explicit in the civil context. See Sterling, 724 F.3d at 497 (“LaRouche… offers no authority for us to recognize a First Amendment reporter’s privilege in this criminal proceeding.”) In civil cases, recent decisions support, though do not explicitly state, the existence of a qualified privilege for nonconfidential sources and information. In Church of Scientology, 992 F.2d 1329, 21 Media L. Rep. 1426 (4th Cir. 1993), cert. denied 510 U.S. 869 (1993), the Church sued a drug company executive for libel based on a statement made by the executive in a USA Today editorial board meeting and published by the newspaper. 992 F.2d at 1330-31. The Church moved to compel production by USA Today of materials relating to the board meeting, even though the executive offered to stipulate to the quotation’s accuracy. The Fourth Circuit, in affirming the denial of the Church’s motion, applied the LaRouche balancing test in spite of the nonconfidential nature of the information sought and the absence of vindictiveness. Id. at 1335.
Lower courts have followed this lead in applying the qualified privilege to nonconfidential information. See, e.g., Federico v. Lincoln Military Hous., LLC, 42 Media L. Rep. 2472, at *3-4 (E.D. Va. Aug. 13, 2014) (“[I]t is generally the opinion of these courts that the potential burden of the free flow of information caused by the disclosure of nonconfidential materials is equivalent to the burden of revealing confidential information.”) (quoting Stickels v. Gen. Rental Co., Inc., 750 F.Supp. 729, 732 (E.D. Va. 1990)) (reviewing Fourth Circuit case law in this area); Food Lion Inc. v. Capital Cities/ABC Inc., 951 F. Supp. 1211, 25 Media L. Rep. 1182 (M.D.N.C. 1996) (applying a modified balancing test in permitting limited discovery of nonconfidential hidden camera investigations); Penland, 922 F. Supp. at 1084 (applying LaRouche test in granting motion to quash plaintiffs’ subpoena for nonconfidential information on interviews with defendant).
Even if the analysis of the privilege in the civil context is the same for confidential and nonconfidential sources and information, it is likely that the nonconfidentiality of a source might tip the balance on the “compelling interest” element in favor of disclosure. See Miller, 602 F. Supp. at 680 (“The First Amendment protection against disclosure of the name of a confidential source is stronger than the protection against disclosure of non-confidential information revealed by that source.”).
The Fifth Circuit extends a qualified privilege in civil cases to prevent the disclosure of the identity of confidential sources. Miller v. Transamerican Press, Inc., 621 F.2d 721, 725, as modified, 628 F.2d 932 (5th Cir. 1980); In re Selcraig, 705 F.2d 789, 797 (5th Cir. 1983). The Fifth Circuit has not, however, specifically considered whether the protection extends to information obtained from a source under a promise of confidentiality. See Miller, 621 F.2d 721.
Conversely, the Fifth Circuit has stated that it has never recognized a reporter's privilege for non-confidential information, noting that for testimonial privileges, "the existence of a confidential relationship that the law should foster is critical to the establishment of a privilege." United States v. Smith, 135 F.3d 963, 971 (5th Cir. 1998). The Court cited dicta from its decision in Pressey v. Patterson, 898 F.2d 1018, 1022 n.4 (5th Cir. 1990), theorizing that, indeed, confidentiality may be a necessary condition for the application of a qualified First Amendment reporter's privilege. Smith, 135 F.3d at 972. The Smith court further held that, in criminal cases, no reporter's privilege protects non-confidential information. Id. Absent such a privilege, the government need merely identify the information it seeks with sufficient specificity and show that it is relevant and admissible. Id.
Before Smith was decided, district courts were split regarding the application of the reporter's privilege to non-confidential information. For instance, a district court upheld the privilege in a civil case seeking notes and materials for possible impeachment purposes from a non-party reporter who did not witness the facts at issue. Holland v. Centennial Homes, Inc., 1993 WL 755590, at *6, 22 Media L. Rep. 2270 (N.D. Tex. 1993); see Brinston v. Dunn, 919 F. Supp. 240, 243--44 (S.D. Miss. 1996) (in civil case, recognizing privilege for non-confidential unpublished information obtained by reporter). However, other district courts had declined to extend the privilege to non-confidential material in civil matters. E.g., De La Paz v. Henry's Diner, Inc., 946 F. Supp. 484, 485 (N.D. Tex. 1996) (declining to recognize qualified privilege for non-confidential information and, thus, refusing quash subpoena duces tecum in civil matter seeking non-party reporter's interview tapes and notes of non-confidential source); Cinel v. Connick, 792 F. Supp. 492, 498-500 (E.D. La. 1992) (where court in civil matter ordered submission of inventory of materials held by media defendants for in camera review, no privilege under federal law or Louisiana shield statute, La. R.S. 45:1459).
In civil contexts, federal courts within the Sixth Circuit have applied the First Amendment to bar compelled disclosure of a newspaper's confidential sources. Southwell v. Southern Poverty Law Ctr, 949 F. Supp. 1303 (W.D. Mich. 1996); NLRB v. Midland Daily News, 151 F.3d 472 (6th Cir. 1998).
In the context of a grand jury investigation of a homicide, the Sixth Circuit refused to overturn a contempt conviction of a television reporter who refused to comply with a grand jury subpoena for video outtakes showing the likenesses of potential suspects who expected anonymity when the journalist taped them. In re Grand Jury Proceedings, 810 F.2d 580 (6th Cir. 1987).
If the First Amendment bars enforcement of subpoenas against the press in the context of criminal litigation or investigations, the federal courts have given no indication as to whether it would apply to information that might lead to the identity of a confidential source, whether it would apply only to the information that actually identifies a confidential source, or whether it would apply at all. In Grand Jury Proceedings, the Sixth Circuit opined that there is no special First Amendment protection from grand jury subpoenas, but that opinion is likely nonbinding dicta. Southwell v. Southern Poverty Law Ctr, 949 F. Supp. 1303 (W.D. Mich. 1996); see NLRB v. Midland Daily News, 151 F.3d 472 (6th Cir. 1998).
Federal courts in the Sixth Circuit have not addressed whether the First Amendment would bar compelled disclosure of unpublished, nonconfidential information gathered by a journalist. See NLRB v. Midland Daily News, 151 F.3d 472 (6th Cir. 1998); Southwell v. Southern Poverty Law Ctr, 949 F. Supp. 1303 (W.D. Mich. 1996).
Given that the very existence of First Amendment protection may be at issue within the Sixth Circuit, doubts should be resolved against First Amendment protection from subpoenas seeking unpublished, nonconfidential information.
Even without a First Amendment privilege, some courts have nonetheless protected journalists. A Sixth Circuit district court found that the reporters at issue did not have to disclose information from, or names of, confidential sources because the information sought could be obtained from other sources, the request was overly broad and burdensome, and the information may duplicate information gathered from other sources. In re Daimler Chrysler, 216 F.R.D. 395 (E.D. Mich. 2003).
Another Sixth Circuit district court found the relationship between the information sought and the plaintiff's claim too tenuous and declined to subpoena a reporter. The reporter had gained access to pre-employment psychological evaluations of a police officer who was making a claim for discrimination. Lentz v. City of Cleveland, No. 1:04CV0669, 2006 U.S. Dist. LEXIS 32078 (N.D. Ohio May 22, 2006). However, earlier in the same case, the court had found that the reporter could be subpoenaed for the same information when it related to invasion of privacy claims against his employer, as there was a clear relationship between the information and those claims. Lentz v. City of Cleveland, 410 F. Supp. 2d 673 (N.D. Ohio 2006).
Disclosure may be compelled where 1) the reporter is not being harassed, 2) the information is being sought in good faith, 3) the information has more than a remote or tenuous relationship with the case, and 4) there is a legitimate need for disclosure, the identity of a source may be compelled. Hade v. City of Fremont, 233 F. Supp. 2d 884 (N.D. Ohio 2002) (citing the test devised in In re Grand Jury Proceedings, 810 F.2d 580 (6th Cir. 1987)).
Despite the ruling in McKevitt, some courts have continued to scrutinize subpoenas to the press on the grounds of administrative burden and impact on the public’s right to know, albeit usually when a confidential source is at issue. For example, in Davis v. City of Springfield, No. 04-3168, 2009 U.S. Dist. LEXIS 26806 at *10, (C.D. Ill. April 1, 2009), the court quashed a subpoena for the identity of a confidential source and related notes. Significantly, it did not consider confidentiality alone to be dispositive, but identified it as one factor that clearly increases the burden of production on the press. Id. at *12-13.
Other factors included the civil nature of the case and alternative sources of the information, although the court held that Rule 45 does not require the exhaustion of other sources. Id. at *13. The court found that the Seventh Circuit has deemed "obvious" the fact "that the newsgathering and reporting activities of the press are inhibited when a reporter cannot assure a confidential source of confidentiality.” Id. at *9 (citing McKevitt, 339 F.3d at 532). Moreover, the court held, under the Seventh Circuit's decision in Northwestern Mem'l Hosp. v. Ashcroft, 362 F.3d 923 (7th Cir. 2004), a court may consider not only administrative hardship, but other public interests that may be compromised in enforcing a subpoena, such as the public value of a reporter’s ability to report on information relating to the operation of the police department. Id. at *10.
In McKevitt v. Pallasch, 339 F.3d 530 (7th Cir. 2003), the reporter's privilege was limited to cases involving confidential sources, although some district courts have protected non-confidential material by following a reasonableness test applicable to subpoenas generally. The McKevitt court stated when the source is not confidential, the First Amendment does not apply. Id. at 533. The court suggested that cases holding that the reporter's privilege applies to cases involving non-confidential sources "may be skating on thin ice." Id. at 532.
“No federal common law privilege is available … because the information sought wasn’t derived from a confidential source.” Longs v. Lebo, No. 7-cv-83 RM, 2009 U.S. Dist. LEXIS 25434, at *8 (N.D. Ind. March 24, 2009).
Pre-McKevitt rulings have emphasized the importance of protecting confidential sources. See Neal v. City of Harvey, Illinois, 173 F.R.D. 231, 233 (N.D. Ill. 1997) (protecting names of sources); Gulliver's Periodicals Ltd. v. Chas. Levy Circulating Co., 455 F. Supp. 1197, 1204 (quashing subpoena that sought identity of sources who had given information upon promise that their identities would remain secret). Other than the Gulliver's Periodicals, Ltd. court, no other court has given a definition of "confidential" or distinguished between information obtained through a promise of confidentiality and information not obtained through such a promise.
Although non-confidential information has received less protection under a balancing test, lower courts continue to recognize the media's need for freedom from the harassment of subpoenas. In Hobley v. Burge, 223 F.R.D. 499 (N.D. Ill. 2004), a federal magistrate quashed a subpoena for reporter's notes of conversations with a civil rights plaintiff, because "[g]iven the important role that newsgathering plays in a free society, courts must be vigilant against attempts by civil litigants to turn non-party journalists or newspapers into their private discovery agents." Id. at 505 (internal citations omitted). The magistrate noted that "[n]othing in McKevitt suggests that a reporter's notes are discoverable in civil litigation simply because the reporter interviewed a party to that litigation." Id. The magistrate stated that research for news articles should be treated like proprietary business information that is protected by Fed. R. Civ. P. 45(c)(3)(B)(i). Id. The magistrate did order production of letters sent by the plaintiff to the reporter because the reporter did not establish that they were sent under an agreement to keep them confidential. Id. at 503-04.
Similarly, in Patterson v. Burge, No. 03 C 4433, 2005 WL 43240 (N.D. Ill. Jan. 6, 2005), the court quashed the civil rights defendants' subpoena for videotape outtakes reflecting statements by the plaintiff because the defendants had not shown more than mere relevance. Id. at *3. The court held that the press would become "indentured servants" and suffer a loss of independence if forced to respond to subpoenas for non-public records without a showing materiality and that they do not have the information sought and it is not available from other sources. Id. at *2 - *3. The court discussed several justifications for protecting journalists from subpoenas, including time spent responding, revelation of journalistic and editorial judgments, their ability to create sources and a public interest in a robust press. Id. at *3. The court held that videotapes that reflect a journalist's thought processes should be protected like reporter's notes, even if the burden to produce them is not great. Id. at *4.
The court protected non-confidential material in Bond v. Utreras, No. 04 C 2617, 2006 WL 1806387 (N.D. Ill. June 27, 2006). A federal magistrate held that civil rights defendants could not force a reporter to disclose interview notes or answer questions in a deposition about interviews of residents of a public housing project he was reporting on. Id. at *6 - *7. However, the magistrate did order the reporter to answer questions about his interviews with the plaintiff, because the plaintiff had no legitimate expectation of privacy in those discussions. Id. at *7. The magistrate held that to establish a right to the notes and testimony, the defendants would have to show that the evidence is highly probative of issues relevant to the case and that they don't have or is otherwise unavailable to them. Id. at *6. In a later ruling on a motion for reconsideration, the magistrate held that the reporter's deep involvement in the case, including helping the plaintiff find an attorney, meant he could not expect to shield his notes of interviews with her and conversations with her. Bond v. Utreras, No. 04 C 2617, 2006 WL 2494759, at *2 (N.D. Ill. August 23, 2006).
In a like manner, in Hare v. Zitek, No. 02 C 3973, 2006 WL 2088427 (N.D. Ill. July 24, 2006), a federal magistrate held that despite the absence of a federal reporter's privilege in the 7th Circuit, civil rights defendants could not force a reporter to answer questions about her sources unless they can show a real need for the information and that it is not available from another source. Id. at *4.
See also the pre-McKevitt cases of Warnell v. Ford Motor Co., 183 F.R.D. 624, 625 (N.D. Ill 1998) (refusing to quash subpoena for videotapes, but conducting balancing test and considering non-confidential nature of information); United States v. Bingham, 765 F. Supp. 954, 956 (N.D. Ill. 1991) (upholding NBC's motion to quash subpoena for video outtakes but ordering NBC to produce transcripts of non-confidential outtakes).
The Eighth Circuit has not ruled on this issue, but two lower courts have.
In Continental Cablevision the district court held that "the [F]irst [A]mendment qualified reporter's privilege is not limited to discovery which seeks the revelation of confidential sources. The [F]irst [A]mendment interest in preserving the vitality of the press is implicated any time civil litigants seek discovery or testimony from the media, regardless of whether confidential or non-confidential sources or material are sought." Nonetheless, "a lesser showing of need and materiality may be required in the situation where discovery of non-confidential material is sought than where the identity of confidential sources is sought." Cablevision, Inc. v. Storer Broad. Co., 583 F. Supp. 427, 434 (E.D. Miss. 1984).
On the other hand, the district court in Hively found that "in the absence of any showing that this information is sought in bad faith or for purposes of harassment, this Court declines to recognize any constitutional privilege concerning the nonconfidential testimony sought by the defense." United States v. Hively, 202 F. Supp. 2d 886, 892 (E.D. Ark. 2002). However, Hively was a criminal case.
In the Ninth Circuit, both confidential and non-confidential information are privileged under certain circumstances in non-grand jury cases. The Ninth Circuit has yet to articulate a formal test when the information sought is confidential, but it has looked approvingly to factors that other circuits have considered. See Shoen II, 48 F.3d at 416 (“The Second Circuit, for example, applies the following conjunctive test for determining whether a journalist must disclose a confidential source in a civil case: ‘disclosure may be ordered only upon a clear and specific showing that the information is: highly material and relevant, necessary or critical to the maintenance of the claim, and not obtainable from other available sources.’”); see also, e.g., Condit v. Nat’l Enquirer, 289 F. Supp. 2d 1175, 1177 (E.D. Cal. 2003) (looking to the Second Circuit factors articulated in Shoen II).
The Ninth Circuit has also stated that “the journalist’s privilege applies to a journalist’s resource materials even in the absence of the element of confidentiality,” while adding, however, “that the absence of confidentiality may be considered in the balance of competing interests as a factor that diminishes the journalist’s, and the public’s, interest in non-disclosure.” Shoen I, 5 F.3d at 1295; see also Planned Parenthood Fed’n of Am., Inc. v. Ctr. For Med. Progress, 2018 WL 2441518, at *14 (N.D. Cal. May 31, 2018) (concluding that the journalist’s privilege is not confined to the protection of confidential sources) (citing Shoen I, 5 F.3d at 1290-91).
“[W]here information sought is not confidential,” the Ninth Circuit has explained that “a civil litigant is entitled to requested discovery notwithstanding a valid assertion of the journalist’s privilege by a nonparty only upon a showing that the requested material is: (1) unavailable despite exhaustion of all reasonable alternative sources; (2) noncumulative; and (3) clearly relevant to an important issue in the case.” Shoen II, 48 F.3d at 416; compare Shoen I, 5 F. 3d at 1297 (holding that merely using interrogatories and requests for admission do not exhaust reasonable alternatives), with Crowe v. Cty. of San Diego, 242 F. Supp. 2d 740, 751 (S.D. Cal. 2003) (concluding that, though witnesses to an interview could be deposed, depositions were not reasonable alternative sources to capture the content and context of the interview). In addition, “there must be a showing of actual relevance; a showing of potential relevance will not suffice.” Id.
With respect to the reporter's privilege provided by Alabama's shield statute, Alabama courts have not specifically distinguished confidential information from non-confidential information when analyzing the reporter's privilege, but one state court has suggested that the shield statute applies to "confidential sources." Norandal USA, Inc. v. Local Union No. 7468, No.: CV-86-136, 13 Med. L. Rptr. 2167 (Jackson County, Ala. Cir. Ct., Sept. 11, 1986). A federal court sitting in the state indicated in dicta that the statute applies only to confidential sources. Pinkard v. Johnson, 118 F.R.D. 517 (M.D. Ala. 1987). In Pinkard, it is unclear whether the court was using "confidential" to mean that the source was confidential because the reporter had not disclosed the source, thereby waiving the privilege, or whether the source was confidential because the source provided information to the reporter with the understanding that his or her identity would not be disclosed by the reporter. Arguably, in Pinkard, the court used "confidential" to mean the former - that sources are confidential and privileged only if the reporter has not previously disclosed the identity of the source. The express terms of Alabama's shield statute, however, do not require that a source be confidential in order for the privilege provided by the statute to be available. The privilege provided by the First Amendment to the United States Constitution applies to materials other than confidential sources. Norandal USA, Inc. v. Local Union No. 7468, No.: CV-86-136, 13 Med. L. Rptr. 2167 (Jackson County, Ala. Cir. Ct., Sept. 11, 1986).
Alaska appellate courts have not had occasion to squarely address the existence or scope of a reporter's privilege. Both state and federal trial courts have, however, and have recognized a qualified constitutional reporter's privilege, and quashed subpoenas, without regard to whether the information sought was confidential or non-confidential. The shield law speaks only to protection against compelled disclosure of the source of information.
The Arizona Shield Law provides an absolute privilege for confidential information or sources. Matera, 170 Ariz. at 450, 825 P.2d at 975. The Arizona Supreme Court has suggested that the statute provides no protection, absolute or qualified, for non-confidential information. Moody, 208 Ariz. at 458, 94 P.3d at 1153.
The Arizona Media Subpoena Law provides certain procedural protections to news organizations and reporters who are the subject of subpoenas for confidential or non-confidential information. However, at least one court has held that the Arizona Media Subpoena Law is not itself a substantive privilege. Matera, 170 Ariz. at 448, 825 P.2d at 973.
The statute does not contain the word "confidential," nor does it specifically differentiate between confidential and non-confidential sources. In Saxton, the disclosure of the identity of a confidential source was at issue. The Arkansas Supreme Court has not announced whether the privilege applies to sources deemed non-confidential.
The reporter’s privilege in California explicitly protects “any unpublished information.” Cal. Const. art. 1, § 2(b); Cal. Evid. Code § 1070. The California Supreme Court has interpreted these provisions to protect both confidential and non-confidential information. As the California Supreme Court explained, “the use of the word ‘any’ makes clear that article I, section 2(b) applies to all information, regardless of whether it was obtained in confidence.” Delaney v. Superior Court, 50 Cal. 3d 785, 798, 268 Cal. Rptr. 753 (1990). Accord New York Times Co. v. Superior Court, 51 Cal. 3d 453, 461-62, 796 P.2d 811, 273 Cal. Rptr. 98 (1990). Another decision questioned whether the privilege applies where the defendant is both the source of the information and the person seeking its disclosure. People v. Vasco, 131 Cal. App. 4th 137, 152 n.3, 31 Cal. Rptr. 3d 643 (2005). The court considered the issue “troublesome,” opining that in this circumstance, “there is no risk the reporter’s source (the defendant) will complain her confidence has been breached . . . . Nor is the separate policy of safeguarding press autonomy in any way compromised . . . . And, where the defendant is the reporter’s source of information, there appears no reason to assume disclosure would hinder the reporter’s ability to gather news in the future.” Id. (citations omitted). It held, however, that under Delaney “we may only consider this factor in the balancing stage.” Id. Because defendant did not meet Delaney’s threshold test, the court concluded that “this factor plays no part in the equation.” Id.
The Colorado Press Shield Law applies to all information, "regardless of whether [the information has] been provided to or obtained by such newsperson in confidence." C.R.S. § 13-90-119(1)(b). The information covered by the statute is defined as any "knowledge, observation, notes, documents, photographs, films, recordings, videotapes, audiotapes and reports." C.R.S. §13-90-119(1)(b). This standard was applied before the statute was enacted. See Jones v. Woodward, 15 Med. L. Rptr. at 2061 ("the qualified reporter's privilege applies whether or not the source of the reporter's information is confidential").
Looking to other jurisdictions for guidance, courts in this Circuit have observed that a party seeking nonconfidential information generally may prevail on a lesser showing of need and materiality than one seeking the identity of confidential sources. E.g., Goldberg v. Amgen, Inc., 123 F. Supp. 3d 9, 13 (D.D.C. 2015) (applying a “less rigorous standard” of review to plaintiff’s request for nonconfidential information in recognition of similar holdings in other courts); NLRB v. Mortensen, 701 F. Supp. 244, 248 (D.D.C. 1988) (holding that subpoenas seeking authentication of quotes published in The Washington Post necessarily implicate journalists’ First Amendment interests, applying Branzburg balancing test, and ordering journalists to comply with subpoenas); but see Tripp v. Dep’t of Def., 284 F. Supp. 2d 50 (D.D.C. 2003) (“While the D.C. Circuit has never ruled directly on the issue, other Circuits, as well as District Courts within this Circuit, have concluded that the qualified ‘reporter's privilege’ protects both confidential and non-confidential information obtained by the reporter during the course of the reporter’s newsgathering efforts.”); cf. Tavoulareas v. Piro, 93 F.R.D. 35 (D.D.C. 1981) (protecting confidential sources while requiring The Washington Post to answer questions regarding once-confidential sources discovered through plaintiff’s alternative efforts). In Hutira v. Islamic Republic of Iran, 211 F. Supp. 2d 115, 119 (D.D.C. 2002), the court surveyed other decisions addressing whether the qualified privilege applies to information regardless of confidentiality, concluding that nonconfidential information is privileged. The court stated, however, that it needed to take the nonconfidential nature of the privilege into account because “journalists have a stronger interest against compelled disclosure of confidential information than they do non-confidential information.” Id. at 121.
In this Circuit, with respect to newsgathering materials other than source-identifying information, the balance of interests test applies whether the material sought is confidential or nonconfidential. E.g., Maughan v. NL Indus., 524 F. Supp. 93, 95 (D.D.C. 1981) (compelling a reporter to produce material such as personal notes constitutes a “significant intrusion into and certainly a chilling effect upon the newsgathering and editorial process,” and thus the “compelled production of such materials is equally as invidious as the compelled disclosure of . . . confidential informants”) (internal marks omitted); Palandjian v. Pahlavi, 103 F.R.D. 410 (D.D.C. 1984) (same).
Delaware makes no distinction between confidential and non-confidential information. See State v. Hall, 16 Med. L. Rptr. 1414 (Del. Super. Mar. 8, 1989). All information--regardless of confidential status--appears to be equally protected. State v. Cordrey, Del. Super., C.A. No. 88-07-0000A, Barbiarz, J. (September 28, 1988) (Transcript) (finding a qualified privilege attaches "[e]ven though no confidential sources are involved").
District of Columbia
The District’s shield law, and the cases decided under it, do not distinguish between confidential and non-confidential sources. In a case decided prior to the enactment of the D.C. shield law, the D.C. Court of Appeals held that a reporter could be compelled to identify a source she already had disclosed to two different people on separate occasions outside of her newsgathering function. Wheeler v. Goulart, 593 A.2d 173 (D.C. 1991) (“[o]nce a newspaper reporter discloses the source under the circumstances presented here, the rationale for upholding any qualified privilege ceases”). However, that holding has been superseded by the anti-waiver provision of the D.C. shield law, D.C. Code § 16-4704.
The statute itself does not address whether the privilege protects non-confidential information. However, the Florida Supreme Court has repeatedly found that the privilege applies equally to both confidential and non-confidential information. See State v. Davis, 720 So. 2d 220, 222 (Fla. 1998) (the privilege applies to factual situations involving both non-confidential and confidential information); Morris Communications Corp. v. Frangie, 720 So. 2d 230, 231 (Fla. 1998) (confirming that Davis, which held that the privilege applies to non-confidential information in the context of a criminal proceeding, applies with equal force in civil proceedings). Thus, in both criminal and civil proceedings, non-confidential information is protected from disclosure unless the subpoenaing party can make the requisite showing to overcome the privilege.
In addition to protecting confidential sources and information, the privilege also protects against the compelled disclosure of non-confidential sources and information. See, e.g., In re Paul, 270 Ga. 680, 684 (1999) ("Unlike some states, the Georgia statute does not limit the privilege solely to confidential sources, but protects against the disclosure of any information obtained or prepared.").
Confidential information, generally, is any information obtained by a news gatherer under a promise of confidentiality. Non-confidential information, conversely, is any information obtained other than through a promise of confidentiality. The Statute does not differentiate between confidential and non-confidential information. The Statute extends to all sources whether or not they are considered confidential. People v. Palacio, 240 Ill. App.3d 1078, 1092, 607 N.E.2d 135, 138 (1993). “[T]he definition of ‘source’ makes no distinction between confidential and nonconfidential ‘person or means from or through which the news or information was obtained.’“ People ex rel. Scott v. Silverstein, 89 Ill. App. 3d 1039, 1043, 412 N.E.2d 692, 695 (1980) (noting that “[t]he compelled production of a reporter’s resource materials is equally as invidious as the compelled disclosure of his confidential informants”) (quoting Gulliver’s Periodicals, Ltd. v. Chas. Levy Circulating Co., Inc., 455 F. Supp. 1197, 1204 (N.D. Ill. 1978)); Kelley v. Lempesis, No. 13-cv-4922, 2015 WL 4910952 (N.D. Ill. Aug. 17, 2015) (same; quashing subpoena for broadcaster’s outtakes); see also People v. Slover, 323 Ill. App. 3d 620, 624, 753 N.E.2d 554, 558 (2001) (subpoenaed photographs were privileged because section 8-901 of the Statute protects even non-confidential sources)’’; McCabe v. Greager, 27 Media L. Rep, 1702, 1703 (Ill. Cir. Ct. 1999) (videotape outtake was a “source” as defined by 735 ILCS 5/8-902(c), and cloaked with the statutory privilege regardless of whether it was confidential). But see McKevitt v. Pallasch, 339 F.3d 530, 533 (7th Cir. 2003) (in federal question case, court expressly declined to address Illinois reporter’s privilege statute, and cast doubt on existence of federal privilege, finding it “difficult to see what possible bearing the First Amendment could have on the question of compelled disclosure” of nonconfidential material); United States v. Jennings, No. 97 CR 765, 1999 U.S. Dist. LEXIS 9534 at *1, *4 (N.D. Ill. June 21, 1999) (holding that in federal criminal cases “the Illinois Reporter’s Privilege Act provides no guidance” and “the First Amendment does not protect journalists from disclosure of non-confidential, relevant information that is sought in good faith”).
While the identities of sources are privileged under Indiana Code Section 34-46-4-2, it has yet to be decided whether the statute covers the information obtained from the sources, whether that information is confidential or nonconfidential. In re Stearns (Vollmer v. Zulka), 489 N.E.2d 146, 149 (Ind. App. 1986).
Indiana’s shield law refers to a newsgatherer’s “source” without reference to confidentiality or nonconfidentiality, but the Indiana Court of Appeals recognized that the shield law protects against confidential sources of information. Id.
Nonconfidential sources are not explicitly addressed by Indiana Code § 34-46-4-2. See Slone v. State, 496 N.E.2d 401, 405 (Ind. 1986) (declining to decide whether the shield law covers nonconfidential source materials). Such materials might be protected under a qualified First Amendment privilege in civil cases, assuming that privilege was not eliminated by the Supreme Court's rejection of a constitutional privilege in criminal cases in In re WTHR-TV, 693 N.E.2d 1 (Ind. 1998). See In re Stearns (Vollmer v. Zulka), 489 N.E.2d 146 (Ind. App. 1986).
In Lamberto and Waterloo/Cedar Falls Courier, the Iowa Supreme Court shielded the journalist from compelled disclosure of confidential information including information provided on an off-the-record basis. See Lamberto, 326 N.W.2d at 310; Waterloo/Cedar Falls Courier, 646 N.W.2d at 104. Confidential information was reviewed under the same standard as confidential sources in Waterloo/Cedar Falls Courier. In that case, the promise not to use the information provided by the confidential sources extended to a statement to the court in the underlying open meetings action that the information would not be used in the litigation. Waterloo/Cedar Falls Courier, 646 N.W.2d at 99. That promise appears to have helped to persuade the court that the journalist should not be ordered to disclose information obtained off-the-record. Id.
The Kansas shield statute does not draw a distinction between “confidential” and “non-confidential” information. It is said to extend to “information,” which is a defined at K.S.A. 60-480(b) as follows:
“Information” means any information gathered, received or processed by a journalist, whether or not such information is actually published, and whether or not related information has been disseminated, and includes, but is not limited to, all notes, outtakes, photographs, tapes and other recordings or other data of whatever sort that is gathered by a journalist in the process of gathering, receiving or processing information for communication to the public.
K.S.A. 60-481 can be read as immunizing journalists from the compulsory disclosure of any “information” in any case, i.e., all information assembled by a journalist while acting as a journalist whether “confidential” or otherwise; however, this interpretation is at odds with the plain language of K.S.A. 60-482(a), which makes it clear that the qualified privilege can be overcome upon proper showing.
The Kansas Supreme Court has held in a number of cases not involving journalists that a litigant seeking confidential information will be required to demonstrate that he or she has exhausted a search for alternative sources of the information in issue. In re Rockhill Pain Specialists, P.A, 55 Kan.App.2d 161, 412 P.3d 1008 (2017); Berst v. Chipman, 232 Kan. 180, 189, 653 P.2d 107 (1982); Adams v. St. Francis Regional Medical Center, 264 Kan. 144, 160, 955 P.2d 1169 (1998).
In non-diversity cases in federal court, in which the federal privilege laws will be applied, the decision in United States v. Foote, 00-CR-20091-01-KHV, 2002 WL 1822407 (D. Kan. August 8, 2002) can be cited. In Foote, Magistrate Waxse stated that: “the court is persuaded that non-confidential information gathered by a reporter or other journalist is entitled to the privilege as well.”
In dicta, the Fifth Circuit explained that confidentiality may be a requirement for the reporter's privilege. See Smith, 135 F. 3d at 972. In Smith, the court refused to grant a privilege not to disclose non-confidential information in a criminal case. The court cited the source's lack of confidentiality as one ground on which to distinguish Miller. Id. The Fifth Circuit has not yet addressed whether the reporter's privilege applies to non-confidential information in a civil proceeding.
The Louisiana shield law provides a qualified privilege for non-confidential news. La. R.S. 45:1459.
The shield law statute applies only to confidential sources and information. 16 M.R.S.A. § 61(1).
In the few pre-shield law cases dealing with non-confidential information, the court has found that the balancing test weighs in favor of disclosure absent a showing of appreciable burden of disclosure on freedom of the press. In re Letellier, 578 A.2d 722, 17 Media L. Rep. 2169 (Me. 1990) involved the forced disclosure of non-confidential outtakes. Throughout the decision, the Court noted that the information sought was not confidential and did not involve a confidential source, suggesting that confidential source or confidential information might have been treated differently. E.g., id. at 728 (holding that disclosure would pose a “very low burden on WCSH-TV and its reporter”). See also State v. Hohler, 543 A.2d at 366 (“Hohler fails to persuade us that any substantial burden would be imposed on the news gathering process if a reporter is called upon to testify concerning non-confidential, published information.”).
Md. Cts. & Jud. Proc. Code Ann. § 9-112(c)(1).
Lightman v. State, 294 A.2d 149 (Md. Ct. Spec. App. 1972), aff'd, 295 A.2d 212 (Md. 1972), cert. denied, 411 U.S. 951 (1973) -- "The statute, on its face, does not purport to protect a newsman from disclosing only such sources of news or information published by him [which were] received in the course of a confidential newsman-informant relationship. On the contrary, while the Legislature may have enacted the statute with the primary purpose in mind of protecting the identity of newsmen's confidential sources, we think the statutory privilege broad enough to encompass any source of news or information, without regard to whether the source gave his information in confidence or not." Id. at 156.
The privilege provides more protection for confidential information than non-confidential information. See Russo v. Geagan, 35 Fed. R. Serv.2d 1403 (D. Mass. 1983) (federal magistrate judge upheld subpoena for unaired video of a protest where the production would not require the revelation of any confidential source. Because the rally was visible to the public at large, none of the information required was obtained under a pledge of confidentiality.). See also Astra USA, Inc. v. Bildman, 13 Mass. L. Rep. 300 (Mass. 2001).
As noted above, the statutory privileges prohibiting grand juries and prosecutor subpoenas protect the identity of and information supplied by the source without respect to confidentiality. However, in civil and criminal matters in the court confidentiality of the information and the informant's identity is important. Court's are less likely to prohibit subpoenas for non-confidential information.
In Brinston v. Dunn, the federal district court noted that "the Fifth Circuit has not yet addressed the issue of compelled disclosure of a nonconfidential source by a journalist . . . ." 919 F. Supp. 240, 243 (S.D. Miss. 1996). The court did not apply the qualified privilege test based on whether the information sought was confidential or nonconfidential but on the fact that it was unpublished. Id. at 244. The reporter was required to "answer questions regarding the truthfulness and accuracy of the contents of the article he authored . . . since this does not impermissibly infringe on the First Amendment right to freedom of the press." Brinston v. Dunn, 919 F. Supp. 240, 244 (S.D. Miss. 1996).
In McKee v. Starkville, however, the Court focused upon the confidentiality aspect of the information sought and held that "there is no right to refuse to answer relevant questions pertaining to matters other than confidential sources." 11 Med. L. Rptr. 2312, 2313, No. EC-82-36-NB-D, (N.D. Miss. Jan. 27, 1985). The reporter was required answer all relevant deposition questions not related to the identity of a confidential source, including inquiries about authorship of articles and the reporter's general knowledge of how executive meetings were conducted by a city's governing council. Id.
Only one of the selected trial court orders makes reference to the confidentiality of a source. In Hersdorffer v. Mississippi Publishers Corp., the trial court found that "[t]he information sought is protected by the journalist's constitutional privilege not to reveal confidential sources." Hinds County Circuit Court, No. 29,251 (Apr. 7, 1983) (emphasis added). It is unclear whether the information protected in the other trial court orders was confidential or nonconfidential.
The court in Classics III, 954 S.W.2d at 654, held that a reporter's shield privilege applies in civil cases to protect the reporter from being forced to reveal the identity of and confidential communications made by confidential sources where confidentiality was promised, even if the material was not used in the story. The court further engages in a detailed analysis at 658 as to whether it is critical that the source's material be used in the story for the privilege to attach and concludes that this is not a valid test, inasmuch as a reporter may give a promise of confidentiality to a source after the story has been published without knowing at that time if a second article will follow.
Before State v. Gibson, the opinions of the Court did not expressly differentiate between the protection afforded to confidential, as opposed to non-confidential, sources. In State v. Gibson, 170 N.H. 316 (2017), the Court refused to extend the privilege to shield a reporter from a subpoena directing him to testify in a criminal proceeding against the defendant, who also was his source. The Court reasoned that, because the information sought was published, non-confidential, and sought in a criminal proceeding, the privilege did not apply. Id. at 322.
Rule 11-514 protects only “confidential” information, defined as information “communicated privately and not intended for further disclosure except to other persons in furtherance of the purpose of the communication.” Rule 11-514(A)(2), (B)(2) NMRA. Rule 23-107(H) protects all “film, videotape, still photographs, or audio reproductions developed during or by virtue of coverage of a judicial proceeding.” The statutory privilege applicable to nonjudicial proceedings protects only “unpublished” information, defined as “information not disseminated to the public by the person from whom disclosure is sought, whether or not related information has been disseminated, and includ[ing] but ... not limited to, all notes, news copy, outtakes, photographs, films, recording tapes or other data of whatever sort not disseminated to the public through a medium of communication.” NMSA 1978, § 38-6-7(A)(2), (B)(5) (1973).
The Shield Law grants an absolute privilege with respect to news "obtained or received in confidence or the identity of the source of any such news." Civ. Rights § 79-h(b). Notes and pre-production materials received from confidential sources are considered confidential and fall under the absolute privilege. See Sands v. News America Pub. Inc., 161 A.D.2d 30, 560 N.Y.S.2d 416 (1st Dep't 1990) (pre-production, confidential notes of author of an allegedly libelous article absolutely privileged); People v Royster, No. 5225/96, 26 Media L. Rep. 1893 (N.Y. Sup. Ct. N.Y. Cty. Dec. 8, 1997) (unpublished). The reporter invoking the absolute privilege has the burden of showing that the information was gathered under an express or implied agreement of confidentiality in the course of gathering news for publication. See In re WBAI-FM, 42 A.D.2d 5, 344 N.Y.S.2d 393 (3d Dep't 1973); Hennigan v. Buffalo Courier Express Co., Inc., 85 A.D.2d 924, 446 N.Y.S.2d 767 (4th Dep't 1981); People v. Troiano, 127 Misc.2d 738, 486 N.Y.S.2d 991(1985).
The qualified privilege applies to nonconfidential, unpublished news. Civ. Rights § 79-h(c). Outtakes of interviews of nonconfidential sources are considered to be nonconfidential news and are protected by the qualified privilege. See Ayala, 162 Misc. 2d 108; NBC v. People, 657 N.Y.S.2d 970 (2d Dep't 1997); In re CBS, Inc., 648 N.Y.S.2d 443 (1st Dep't 1996); see also United Auto Group v. Ewing, 34 Med. L. Rptr. 1801 (S.D.N.Y. 2006) (quashing subpoena seeking to compel production of a videotape containing unbroadcast outtakes of CBS news interviews, where plaintiff merely established that the videotape was "useful" as opposed to "critical or necessary"); People v. Novak, 41 Misc.3d 749, 755, 971 N.Y.S.2d 853, 857 (Sullivan Cty. Ct. 2013) (“People have indicated they ‘need’ the subject material, but have not shown the recording and notes are highly relevant and that the recording and notes are critical or necessary to the People's case or proof of a material issue. They have failed to meet the first two prongs of the test.”).
Outtakes from a variety of other programs have also been protected by the qualified privilege. See People v. Combest, 4 N.Y.3d 341, 795 N.Y.S.2d 481 (N.Y. 2005) (unbroadcast portions of television documentary are protected by qualified privilege, unless criminal defendant can satisfy the elements of § 79-h); People v. Hendrix, 12 Misc.3d 447, 820 N.Y.S.2d 411 (N.Y. Sup. Ct. Kings Cty. 2006) (quashing subpoena seeking outtakes from reality television show about police department where defendants conceded they could not establish the three-prong test).
The qualified privilege also applies to “inquiries into the newsgathering process,” including the identities of callers and interviewers, investigation techniques, and staff backgrounds. Baker v. Goldman Sachs & Co., 669 F.3d 105, 109 (2d Cir. 2012); see also Morgan Keegan & Co., Inc. v. Eavis, 37 Misc.3d 1058, 1060 (N.Y. Sup. Ct. N.Y. Cty. 2012) (denying request to depose nonparty journalist and holding that where petitioners sought to discover information regarding his newsgathering process, such as background, writing procedures, and personal opinions, petitioners were unable to overcome Shield Law); Giuffre v. Maxwell, 221 F. Supp. 3d 472, 479 (S.D.N.Y. 2016) (quashing subpoena of journalist to testify and produce documents because, even where consulting with plaintiff on seemingly separate topics, journalist’s overarching intent remained newsgathering and therefore granted Shield Law protection).
Shield Law applies regardless of whether or not the information was solicited by the reporter. Civ. Rights § 79-h(b) (privilege applies "notwithstanding that the information was not solicited by the journalist or newscaster prior to disclosure to such person").
The North Carolina shield law protects journalists against the disclosure "of any confidential or non-confidential information, document, or item obtained or prepared while acting as a journalist." N.C. Gen. Stat. § 8-53.11(b). Confidential information is any information obtained by a reporter with a promise that the source will not be disclosed. See State v. Wallace, 23 Media L. Rep. 1473 (N.C. Superior Ct. 1995); State v. Hagaman, 9 Media L. Rep. 2525 (N.C. Superior Ct. 1983). Non-confidential information is information obtained by any other means.
The North Carolina Supreme Court has affirmed a Court of Appeals decision that there is no federal constitutional privilege protecting reporters from providing non-confidential information obtained from non-confidential sources in criminal cases. In re Owens, 128 N.C. App. 577, 496 S.E.2d 592, 26 Media L. Rep. 1953 (1998), aff'd, 350 N.C. 656, 517 S.E.2d 605, 27 Media L. Rep. 2340 (1999). While the Owens decision came after the shield law had been enacted, the reporter's material was gathered before the shield law's October 1, 1999 effective date and, therefore, was not applicable. In State v. Wiggins, 29 Media L. Rep. 1597 (N.C. Superior Ct. 2001), a Mecklenburg County Superior Court judge found that, despite the North Carolina Supreme Court's ruling in Owens, the shield law does indeed protect non-confidential information obtained from non-confidential sources, even in criminal cases. As a result, only in a case where the shield law does not apply, would the Owens distinction between confidential information and confidential sources and non-confidential information and non-confidential sources in criminal cases matter.
The plain language of the statute does not distinguish between confidential and non-confidential information. The North Dakota Supreme Court speculated Grand Forks Herald v. Dist. Court in and for Grand Forks Cnty., 322 N.W.2d 850 (N.D. 1982) that confidentiality is one factor to consider when determining whether nondisclosure would result in a "miscarriage of justice". The confidential nature of a source is not dispositive in determining whether the information is protected.
The constitutional protection has been held to cover non-published/non-broadcast information (e.g., reporters' notes, drafts, outtakes) even if no confidential source is involved. See e.g., Fawley v. Quirk, 9th Dist. Summit No. 11822, 1985 WL 11006, 11 Med.L.Rptr. 2336 (July 17, 1985); State v. Hamilton, Montgomery C.P. No. 85-CR-2418, 12 Med.L.Rptr. 2135 (May 6, 1986); Slagle v. Coca Cola, 30 Ohio Misc.2d 34, 507 N.E.2d 794 (Montgomery County C.P. 1986).
1. Shield Law
The Shield Law applies only to information that would identify a confidential source. Commonwealth v Bowden, 838 A.2d 740 (Pa. 2003). It provides an absolute privilege for “a confidential source’s identity or any information which could expose the source’s identity.” Castellani v. Scranton Times, L.P., 956 A.2d 937, 954 (Pa. 2008).
2. First Amendment privilege
The First Amendment reporter’s privilege has been applied in Pennsylvania to confidential, non-confidential, and even published information. See, e.g., Commonwealth v. Bowden, 838 A.2d 740 (Pa. 2003); Davis v. Glanton, 705 A.2d 879, 885 (Pa. Super. 1997) (applying privilege where defendant was known source of information) (citing United States v. Cuthbertson (Cuthbertson I), 630 F.2d 139, 147 (3d Cir. 1980) (privilege applies to information regardless of its confidentiality)); McMenamin v. Tartaglione, 590 A.2d 802, 811 (Pa. Commw. 1991), aff’d without op., 590 A.2d 753 (Pa. 1991) (privilege applies to published statements).
In Glanton, township commissioners subpoenaed The Philadelphia Inquirer for testimony and documents relating to an Inquirer article that quoted a defendant as accusing the commissioners of, among other things, “thinly disguised racism.” Glanton, 705 A.2d at 881-82. The commissioners sought the reporter’s notes, other unpublished materials as well as any other materials received by the newspaper in preparing any article about the Barnes Foundation – where the defendants were trustees, and about which the dispute emanated – in the five years before the article at issue was published. Id. at 883. On appeal, the Pennsylvania Superior Court ordered the reporter to testify and produce the notes and materials used in preparing the article. The court reasoned that (1) the reporter’s notes were necessary to determine whether the potentially defamatory statements, which the defendant in question denied making, referred to the plaintiffs (or to someone else); (2) the reporter’s notes were the only memorialization of the interview; and (3) the reporter and one of the defendants were the only parties to the interview. Id. at 885. The Superior Court also held, however, that the First Amendment reporter’s privilege barred the plaintiff from obtaining the other information it sought from the newspaper – that is, the notes from any of the interviews the newspaper’s reporters conducted with the defendant in question and any materials received by the newspaper in preparing any article about the Barnes Foundation in the five years before the article was published. Id. at 886. The Superior Court reasoned that such materials were not crucial to the plaintiffs’ case. Id.
In McMenamin, the plaintiff sought to compel a reporter’s testimony regarding the accuracy of certain statements recorded by videotape at a press conference and later used as part of a news report. 590 A.2d at 811. The court held that the First Amendment privilege protected the reporter against testifying because there was no evidence that the same information could not have been obtained from others present at the press conference. Id.
In Bowden, the trial court ordered two reporters to disclose to the Philadelphia District Attorney’s Office verbatim, post-indictment, pre-trial statements about the shooting at issue that a homicide defendant made to reporters in jailhouse interviews. The Pennsylvania Supreme Court held that the District Attorney’s Office had satisfied the three part test required to overcome that privilege, as articulated by the Third Circuit Court of Appeals in Riley v. City of Chester, 612 F.2d 708 (3d Cir. 1979); United States v. Cuthbertson (Cuthbertson I), 630 F.2d 139 (3d Cir. 1980); and United States v. Criden, 633 F.2d 346 (3d Cir. 1980). The Pennsylvania Supreme Court therefore affirmed the order of the trial court requiring the reporters to testify about the statements. The court reasoned that the reporters were the only sources of the precise statements: “[b]y their very nature, these [verbatim and substantially verbatim] statements are not obtainable from any other source. They are unique bits of evidence that are frozen at a particular place and time.” 838 A.2d at 756. The court also ruled that the statements were “crucial” to the criminal prosecution of the defendant, whose “defense at trial rested entirely on his claim” that he acted in “self-defense.” Id. at 757. The court concluded that any of the defendant’s statements about the shooting were highly relevant and important to his “mental state” and self-defense claim, either as direct evidence or impeachment evidence. Id. Significantly, however, the court in Bowden did not require the production of the reporters’ notes; the court only affirmed the trial court’s order requiring the reporters to provide, either orally or in writing, the statements made by the defendant. Id. In reaching this result, the Pennsylvania Supreme Court echoed the Third Circuit’s guidance that “it is important for courts faced with privilege questions to consider whether a reporter’s source is confidential, because the lack of a confidential source is a factor that favors production.” Id. at 754.
The privilege does not apply to protect information that is not confidential, but the statute does not define the term "confidential." The Rhode Island Supreme Court has determined that the confidential information covered by the shield law includes information "given either in secret or in confidence to the news entity that claims the privilege." Outlet Communications, Inc. v. State, 588 A.2d 1050, 1052 (R.I. 1991). In Outlet Communications, a television station filed a motion to quash a grand jury subpoena for the unaired portion of an interview on a public sidewalk with a person wanted by authorities in connection with an ongoing grand jury investigation. In affirming the Superior Court's refusal to quash the subpoena, the Rhode Island Supreme Court stated that the circumstances surrounding the acquisition of this information -- i.e., the filming of the interview on a public sidewalk -- rendered the information "anything but secret or confidential." Id.
The Tennessee shield law protects both confidential and non-confidential information. Austin v. Memphis Publishing Co., 655 S.W.2d 146 (Tenn. 1983); see also Haney v. Copeland, 291 B.R. 740, 756 (Bankr. E.D. Tenn. 2003); State v. Kendrick, 178 S.W.3d 734, 737 (Tenn. Crim. App. 2005); State v. Franklin, No. 01C01-9510-CR-00348, 1997 WL 83772, at *7, 1997 Tenn. App. LEXIS 199 (Tenn. Crim. App. 1997).
The civil section of the shield law does not distinguish between confidential and non-confidential information for purposes of privilege. The criminal section of the shield law does make a distinction. When a confidential source is involved in a criminal matter, there is a privilege unless the requesting party has exhausted reasonable efforts to obtain the material from another source and (1) the journalist was an eye witness to a felony, (2) the journalist received a confession of the commission of a felony, or (3) probable cause exists that the source committed a felony. Tex. Code Crim. Proc. art. 38.11, §§4(a)(1)-(3). Further, a journalist can be compelled to give up his confidential source if disclosure is “reasonably necessary to stop or prevent reasonably certain death or substantial bodily harm.” Tex. Code Crim. Proc. art. 38.11, §4(a)(4). When non-confidential information or sources are involved, the subpoenaing party must make a clear and specific showing that: (1) all reasonable efforts have been exhausted to obtain the information from alternative sources; and (2) the information sought is relevant and material to the proper administration of the official proceeding and is essential to the maintenance of a claim or defense of the person seeking the information or the information sought is central to the investigation or prosecution of a criminal case and based on something other than the assertion of the person requesting the subpoena, reasonable grounds exist to believe that a crime has occurred. Tex. Code Crim. Proc. art. 38.11, §5(a). The court should also consider several other factors including the reasonableness, timely notice, the balancing of interests involved and the speculative nature of the subpoena when considering an order to compel testimony. Tex. Code Crim. Proc. art. 38.11, §5(b).
Rule 509 provides a nearly absolute privilege for confidential source information, only compelling disclosure if “the person seeking the information demonstrates by clear and convincing evidence that disclosure is necessary to prevent substantial injury or death.” Id. 509(b). Confidential unpublished news information is protected “unless the person seeking the information demonstrates a need for that information that substantially outweighs the interest of a continued free flow of information to news reporters.” Id. 509(c). A reporter also has a privilege to refuse to disclose nonconfidential, unpublished news information “if the person claiming the privilege demonstrates that the interest of a continued free flow of information to news reporters outweighs the need for disclosure.” Id. 509(d). No Utah appellate court has applied Rule 509. However, even prior to the adoption of this rule, Utah trial court’s generally treated confidential information as deserving greater protection under the reporter's privilege.
For example, one Utah trial judge wrote in a memorandum decision, “[i]nformation that is unpublished or confidential is really at the heart of the reporter's privilege. Reporters will not be compelled to testify as to information that falls into these categories.” State v. Halvorson, No. 001500343 (Utah 5th Dist. Ct. Oct. 13, 2000). In that case, the trial court recognized that ABC News had an interest in blurring the faces of individuals who appeared on a videotape that depicted an alleged crime. The court said that ABC News “clearly [had] the right to [blur the videotape] to protect the confidential and unpublished identities of those shown in the video.” Id. However, the court then reasoned that ABC News's protection of confidential source identities would make the testimony of the ABC News reporter who witnessed the crime even more crucial. Ultimately, the court declined to quash the subpoena seeking the reporter's testimony in part because ABC News's confidentiality claims were outweighed by the public interest in the prosecution of the crime. See id. The reporter did not have to testify, however, because the defendants entered into a plea agreement with prosecutors.
Another trial judge reasoned that a reporter should testify about her jailhouse interview with a murder defendant in part because the information sought was not confidential. State v. Martinez, No. 011501042 (Utah 5th Dist. Ct. April 29, 2002). In that case, the trial judge also found that the reporter's privilege was weakened by the fact that the reporter had not cultivated a source or sought confidential information on her own initiative; rather, the reporter merely received a confession letter from the murder defendant and then followed up on the letter with a personal interview. However, the judge cited no authority for examining whether the source or the reporter initiated the contact that led to creation of the journalistic “work product,” and no other Utah trial court has employed such reasoning.
Information received or gathered by a journalist in confidence is entitled to absolute protection, and cannot be compelled to be produced in any situation:
(1) No court or legislative, administrative, or other body with the power to issue a subpoena shall compel:
(A) a journalist to disclose news or information obtained or received in confidence, including:
(i) the identity of the source of that news or information; or
(ii) news or information that is not published or disseminated, including notes, outtakes, photographs, photographic negatives, video or audio recordings, film, or other data.
12 V.S.A. § 1615(b)(1). This iron-clad protection puts Vermont on par with states like New York and Pennsylvania that offer similar privileges for journalists to protect confidential news sources, and exceeds what any court has determined is required solely by the First Amendment.
A second provision applies specifically to non-confidential journalistic information, establishing a robust qualified privilege that can be overcome only where, based on “clear and convincing evidence,” a strict three-part test has been satisfied:
(2) No court or legislative, administrative, or other body with the power to issue a subpoena shall compel:
(A) a journalist to disclose news or information that was not obtained or received in confidence unless it finds that the party seeking the news or information establishes by clear and convincing evidence that:
(i) the news or information is highly material or relevant to a significant legal issue before the court or other body;
(ii) the news or information could not, with due diligence, be obtained by alternative means; and
(iii) there is a compelling need for disclosure.
Id. at (b)(2). Protections are thus expressly extended to non-confidential materials. Id.
Whether the information sought is confidential or non-confidential is a factor to consider in balancing the burden between an uninhibited press and a party’s need for relevant information. Clemente v. Clemente, 56 Va. Cir. 530, 531 (Arlington 2001); Commonwealth v. Townley, 46 Med. L. Rptr. 1294 (Va. Cir. Ct. 2018) (quashing subpoena for unaired material relating to statements made by the alleged victim in a criminal case); Commonwealth v. Jones, 82 Va. Cir. 379 (Norfolk 2011) (refusing to apply privilege to quash subpoena to a reporter to testify about a jailhouse interview voluntarily given by a man charged with murder and stating, “[t]he privilege does not apply here because there is no confidential information or source”); In re Multi-Jurisdictional Grand Jury, 64 Va. Cir. 423 (Chesterfield 2004) (ordering disclosure of interview materials where the person interviewed was a murder suspect and gave an interview on the record, and stating that, “the predicate for conducting the balancing of factors identified in LaRouche is the circumstance in which both confidentiality of the source material and vexation or harassment is demonstrated by the record”); United States v. Sterling, 724 F.3d 482 (4th Cir. 2013) (refusing to quash a subpoena to a reporter to testify about a confidential source of classified information received by the reporter in a criminal case against a former CIA officer); Ashcraft v. Conoco, Inc., 218 F.3d 282 (4th Cir. 2000) (reversing order holding a reporter in contempt for failing to identify a confidential source where there was no compelling need for the information); In re Shain, 978 F.2d 850 (4th Cir. 1992) (refusing to apply privilege to quash subpoenas to reporters who had interviewed a South Carolina state senator charged with bribery, where there was no issue of confidentiality or government harassment); United States v. Steelhammer, 561 F.2d 539 (4th Cir. 1977) (refusing to apply privilege to observations of reporters at a union strike where no confidential information and no government harassment was present); Gilbertson v. Jones, Civil No. 3:16cv255 (REP), 2016 WL 6518659 (E.D. Va. Sept. 22, 2016) (granting in part motion to quash a subpoena to the extent it sought production of a television station’s internal communications); Federico v. Lincoln Military Hous., LLC, No. 2:12-CV-80, 2014 WL 3962823 (E.D. Va. Aug. 13, 2014) (holding that the privilege applies to non-confidential information at least in civil cases); United States v. Lindh, 210 F. Supp. 2d 780, 783 (E.D. Va. 2002) (holding that the privilege only applies “where the journalist produces some evidence of confidentiality or government harassment”); United States v. King, 194 F.R.D. 569, 584 (E.D. Va. 2000) (holding that the privilege applies only when “both confidentiality of the source material and vexation or harassment is demonstrated by the record”); Stickels v. Gen. Rental Co., 750 F. Supp. 729 (E.D. Va. 1990) (acknowledging privilege but holding that it had been overcome as to non-confidential pictures of an accident scene).
The Hudok court concluded that the reporters' qualified privilege applied equally to both confidential and non-confidential information obtained by the reporter in his/her newsgathering role. Thus, the Hudok test applies to both “confidential sources” and “newsgathering materials,” and the party seeking to compel such information in a civil case generally must show "clearly and specifically" that the confidential information sought from the reporter is (1) "highly material and relevant, necessary or critical to the maintenance of the claim"; and (2) "not obtainable from other available sources." 389 S.E.2d at 193. Thus, the burden on a party in a civil case seeking confidential and non-confidential newsgathering information from a non-party reporter, although not absolute, still is quite high. See also State ex rel. Lincoln Journal, Inc. v. Hustead, 228 W. Va. 17, 26, 716 S.E.2d 507, 516 (2011) (applying Hudok and remanding case back to the circuit court for a “specific Hudok hearing”).