H. Media as a party

Although not a media case, in Grandbouche v. Clancy, 825 F.2d 1463, 1467 (10th Cir. 1987), the Tenth Circuit held that a plaintiff may invoke the First Amendment privilege in resisting discovery directed against the plaintiff's claims; "the fact that [plaintiff] has placed certain information into issue by his complaint is a factor that the trial court should consider under the Silkwood balancing test." (Note: In Silkwood v. Kerr-McGee Corp., 563 F.2d 433, 437 (10th Cir. 1977), the Tenth Circuit cited with approval Cervantes v. Time, Inc., 464 F.2d 486 (8th Cir. 1972), which was a defamation case where the media defendant successfully asserted the reporter's privilege.)

 

The Tenth Circuit avoided the opportunity to apply the federal common law privilege to defendant reporters in Brokers’ Choice of Am., Inc. v. NBC Universal, Inc., instead clarifying that the privilege being sought was that of the state statutory newsperson’s privilege.  757 F.3d 1125, 1140 n.10 (10th Cir. 2014).  Brokers’ Choice involved a hidden recording by defendant reporters (NBC Universal) of the plaintiffs’ trade seminar, which was subsequently edited and select portions broadcast.  Plaintiffs brought a libel suit and sought disclosure of the entirety of the hidden camera footage.  The district court denied discovery based on the Silkwood factors (see Brokers’ Choice of Am. V. NBC Universal, Inc., No. 09-cv-00717-CMA-BNB, 2010 U.S. Dist. LEXIS 11761 (D. Colo. Jan. 27, 2010)), but the Tenth Circuit reversed based solely on the state statutory newsperson’s privilege.  Id. (stating that defendant reporters “[did] not rely on the federal privilege except to the extent it also contains an inquiry into the availability of the evidence from another source”).

 

An unpublished decision of the United States District Court for the District of New Mexico held that there is no First Amendment privilege for communications amongst reporters, but found the privilege protected defendant reporters’ confidential sources.  Amaya v. Bregman, No. 14-cv-0599 WJ/SMV, 2016 U.S. Dist. LEXIS 63588 (D.N.M. May 13, 2016).  In Amaya, defendant reporters were accused of violating the Federal Wiretap Act after allegedly receiving, using, and further disclosing illegally intercepted emails to and from a governor’s domain.  The defendants argued that their communications with each other and other journalists were privileged as evidence of their editorial process.  The court found no authority to support protection of the editorial process and emphasized that “[a]lthough it is not dispositive, the fact that they are Defendants, who are accused of wrongdoing, rather than undisputedly innocent non-parties [ ], is also relevant to the Grandbouche calculus.”  Id. at *22.  Ultimately, the defendant reporters were not entitled to the qualified privilege because they could not show that the disclosure would result in a chill to the First Amendment right to gather news.  Further, applying the Silkwood factors did not result in a different outcome because the plaintiffs claimed statutory and punitive damages, which required a showing that the defendants acted knowingly, thus the information was relevant and necessary.  The court, however, did find that the defendants were entitled to the privilege to protect their confidential sources.

A reporter’s privilege exists where a subpoena seeks the identity of a journalist's confidential source in a civil case, including a defamation case in which the reporter or media organization is a party.  Miller v. Transamerican Press, Inc., 621 F.2d 721, 726, as modified, 628 F.2d 932 (5th Cir. 1980). The party seeking the information must demonstrate with substantial evidence that the information is relevant, not available elsewhere, and the need for the information is compelling. Id.

The privilege is available whether the reporter is a party or a non-party.

Whether the media is a party to a lawsuit does not change the formulation of the common law test for reporter's privilege. The privilege was developed in Garland v. Torre, 259 F.2d 545 (2d Cir.), cert. denied, 358 U.S. 910 (1958), which involved a party reporter. Most of the reported cases involve non-parties. Some courts have held that the showing required to compel a non-party reporter is higher than that of a party to the litigation. See Driscoll v. Morris, 111 F.R.D. 459 (D. Conn. 1986).

Where a reporter or media organization is a party to an action, the district courts have suggested that the privilege is more easily overcome because “it should be more difficult to compel production from a non-party witness . . . .” McBride, 2011 WL 8072752, at *1 n.1; see also, e.g., United States v. Nat'l Talent Assocs., Inc., No. 96-2617 (AJL), 25 Media L. Rep. 2550, 1997 WL 829176, at *6 (D.N.J. Sept. 4, 1997) ("Generally, the privilege yields more readily where the news organization is a party."), Report & Recommendation Adopted, No. 96-2617, 1997 WL 829196 (D.N.J. Sept. 22, 1997); Parsons, 778 F. Supp. at 218 ("[T]he courts may require a lesser showing where the journalist is a party to the lawsuit rather than a third-party witness.").

Moreover, where the journalist is himself the target of a grand jury investigation, as where a book's author was alleged to have made fraudulent statements in connection with obtaining a publishing contract, the Third Circuit has held that the limits of the grand jury's inquiry are established by the so-called Schofield rule, which requires that the government show by affidavit that the subpoenaed items are "'(1) relevant to an investigation, (2) properly within the grand jury's jurisdiction, and (3) not sought primarily for another purpose.'" In re Gronowicz, 764 F.2d at 986 (quoting In re Grand Jury Proceedings, 507 F.2d 963, 966 (3d Cir. 1975)).

Despite one district court’s assertion that the “privilege falls when a media defendant is sued for libel,” the Fourth Circuit constitutional privilege does not differentiate between cases where the media entity is a party and cases where it is not. Bauer v. Brown, 11 Media L. Rep. 2168 (W.D. Va. 1985). The circuit’s three-part balancing test, in fact, originated in a defamation case brought against a media entity. LaRouche, 780 F.2d at 1139. In LaRouche, the Fourth Circuit affirmed the lower court’s denial of a motion to compel NBC to reveal its confidential sources. The Fourth Circuit agreed with the lower court that LaRouche had not exhausted alternative means of obtaining the information, one of the prongs of the test. Id.

Where a media entity or reporter is charged with other kinds of tortious behavior, however, the Fourth Circuit is likely to heighten its scrutiny of assertions of privilege. In Food Lion, the plaintiff grocery chain sued ABC for fraud, trespass, and various commercial torts in connection with the television network’s hidden-camera investigation of the plaintiff’s supermarket stores. 951 F. Supp. 1211. The district court, in allowing limited discovery into two other hidden-camera investigations by ABC, added a prong to the LaRouche test, requiring the court to be “confident that the party asserting the privilege does not do so as a means of justifying otherwise illegal conduct.” Id. at 1215.

While media parties may assert privilege as a constitutional matter, the South Carolina shield statute does not grant a qualified privilege where the one asserting the privilege is a party in interest. S.C. Code § 19-11-100 (1995). The North Carolina and Maryland shield statutes do not differentiate between cases in which a media entity is a party and cases in which it is not.

The Fifth Circuit does not differentiate between cases where the media is a party and where it is not. Rather, the Fifth Circuit has stated that the elements of the privilege announced in Miller v. Transamerican Press, Inc., 621 F.2d 721, as modified, 628 F.2d 932 (5th Cir. 1980), a libel case against the media, provide an "adequate shield" for reporters even in civil cases where the reporter is a non-party witness. In re Selcraig, 705 F.2d 789, 799 (5th Cir. 1983). But see Holland v. Centennial Homes, Inc., 1993 WL 755590, at *4, 22 Media L. Rep. 2270 (N.D. Tex. 1993) (stating that showing of "necessity" under the Miller test varies depending on whether reporter is a party, citing Selcraig).

Where a libel plaintiff seeking to prove that the defendant reporter published the alleged libel while entertaining serious doubts as to its truth (constitutional actual malice), federal courts within the Sixth Circuit have granted summary judgment to the reporter, while refusing the plaintiff's demand that the reporter reveal the identity of a confidential source. Schultz v. Reader's Digest Ass'n, 468 F. Supp. 551 (E.D. Mich. 1979); Southwell v. Southern Poverty Law Ctr., 949 F. Supp. 1303 (W.D. Mich. 1996).

In doing so, those courts stated that they would have compelled the reporters to disclose the identities of their confidential sources if the plaintiff had produced substantial evidence in support of constitutional actual malice [the entertaining by defendants of serious doubts as to truth] or otherwise made a concrete demonstration that the identity of the source would lead to persuasive evidence of actual malice.

In effect, those courts require a libel plaintiff to produce evidence that a confidential source's identity is centrally relevant to an important issue of law and fact in the case. That requirement squares with the usual relevance requirement in cases outside the Sixth Circuit in which courts have applied the First Amendment reporter's privilege where the press was not a litigant. It appears, however, that at least in libel suits against the press, the federal courts in the Sixth Circuit would not require a plaintiff who proves the central relevance of a source's identity also to exhaust other means of learning the identity before seeking it from a defendant journalist.

No federal cases in the Seventh Circuit discussed how the reporters' privilege was affected if the media was a party to the action other than Desai v. Hersh, 954 F.2d 1408 (7th Cir. 1992), in which the libel plaintiff had to prove actual malice and the reporter's privilege did not apply.

Continental Cablevision: "It is easier for a party seeking to overcome the privilege to do so . . . in a libel case where there is a media defendant . . . than in a civil case where the reporter is a non-party." Cablevision, Inc. v. Storer Broad. Co., 583 F. Supp. 427, 433 (E.D. Mo. 1984); see also Nelle, 2017 WL 7049237, *2 (stating that the “plaintiff in a public figure libel case against a media defendant must prove actual malice, a difficult standard to meet without direct evidence in the hands of the defendant”).

A district court within the Ninth Circuit has acknowledged that the reporter’s privilege does not “go[] away merely because a publisher or a journalist is named in the civil action.” Condit v. Nat’l Enquirer, 289 F. Supp. 2d 1175, 1180 (E.D. Cal. 2003); see also Planned Parenthood Fed’n of Am., Inc. v. Ctr. for Med. Progress, No. 16-CV-00236-WHO, 2018 WL 2441518, at *14 (N.D. Cal. May 31, 2018) (“Plaintiffs cite no authority limiting the privilege to nonparties from whom discovery is sought.”); Planet Aid, Inc. v. Reveal, Ctr. for Investigative Reporting, No. 17-CV-03695-MMC, 2019 WL 935131, at *2 (N.D. Cal. Feb. 26, 2019) (finding that “[w]hen the journalist is a defendant in the lawsuit . . . . the privilege still applies” because otherwise, plaintiffs would add reporters to their suits to avoid application of the reporter’s privilege). But “[i]n the context of a civil libel action brought by a public figure plaintiff, courts have noted that the balance shifts somewhat more in favor of disclosure when the privilege is asserted by a media defendant.” Condit, 289 F. Supp. 2d at 1180; see also, e.g., Dangerfield v. Star Editorial, Inc., 817 F. Supp. 833, 836 (C.D. Cal. 1993) (same); Planet Aid, 2019 WL 2441518, at *2 (same).

A handful of federal courts within the Ninth Circuit have applied the California qualified reporter’s privilege described in Mitchell v. Superior Court, 37 Cal. 3d 268, 279 (1984), which considers as part of five interrelated factors “whether the reporter is a party.” See Star Editorial, Inc. v. U.S. District Court, 7 F.3d 856, 860-62 (9th Cir. 1993); Condit v. Nat’l Enquirer, Inc., 289 F. Supp. 2d 1175, 1178-81 (E.D. Cal. 2003); Rogers v. Home Shopping Network, 73 F. Supp. 2d 1140, 1143 (C.D. Cal. 1999).

There is no Alabama statutory or reported case law distinguishing the application of the reporter's privilege in cases where the media is a party and cases where it is not.

Alaska appellate courts have not had occasion to squarely address the existence or scope of a reporter's privilege, and the trial courts have not specifically addressed the issue of whether the privilege applies differently in cases in which the media is a party or is not.

There is no statute or case law addressing the status of the reporter's privilege where the media is a plaintiff or defendant.

Neither the statute nor any Arkansas Supreme Court cases indicate whether the application of the shield law differs if a news organization is a party to the litigation. In Saxton, the only reported Arkansas Supreme Court case dealing specifically with the shield law, the reporter and her newspaper were named as defendants and were not required to disclose any sources. Conversely, in Williams, the American Broadcasting Co. was a named defendant and was required to turn over video outtakes to allow the plaintiffs to attempt to prove their claims of defamation and invasion of privacy.

California’s shield law only protects against a finding of contempt; consequently, if the reporter is a party, the State’s statutory and constitutional privilege provides no real protection. As the California Supreme Court explained: A party to civil litigation who disobeys an order to disclose evidence [] may be subject to a variety of other sanctions, including the entry of judgment against him . . . . Neither Evidence Code section 1070 nor article I, section 2, subdivision (b), protects a party against such sanctions. Mitchell v. Superior Court, 37 Cal. 3d 268, 274, 690 P.2d 625, 208 Cal. Rptr. 152 (1984) (citations omitted).

However, the California Supreme Court has held that the First Amendment to the federal Constitution confers a qualified privilege on reporters even when they are parties to a lawsuit. Mitchell, 37 Cal. 3d 268. The California Supreme Court held that courts should evaluate five factors in determining whether disclosure by a reporter should be compelled:

(1) whether the reporter is a party to the litigation;

(2) whether the information sought “goes to the heart of the party’s claim”;

(3) whether the party seeking the information has exhausted all alternative sources;

(4) the importance of protecting confidentiality, including whether the information “relates to matters of great public importance” and whether the risk of harm to the source is “substantial”; and

(5) whether the party seeking disclosure has made a prima facie showing on its underlying claim.

See id. at 279-83. A number of other cases have applied the qualified privilege, reaching different results regarding the protection afforded. E.g., Anti-Defamation League of B’nai B’rith v. Superior Court, 67 Cal. App. 4th 1072, 1095-97, 79 Cal. Rptr. 2d 597 (1998) (compelling disclosure of some unpublished information because it “might lead to admissible evidence” and other Mitchell factors satisfied); Dalitz v. Penthouse Int’l, Ltd., 168 Cal. App. 3d 468, 479, 214 Cal. Rptr. 254 (1985) (compelling disclosure of confidential sources in defamation case because need for disclosure “compelling”); KSDO v. Superior Court, 136 Cal. App. 3d 375, 386, 186 Cal. Rptr. 211 (1982) (refusing to compel disclosure of unpublished information because alternative source of information); Bohl v. Pryke, 35 Media L. Rep. 2189 (Cal. Ct. App. 2007) (unpub. dec.) (noting that trial court considered Mitchell and ordered publisher defendant to respond to discovery); Star Editorial, Inc. v. United States District Court, 7 F.3d 856, 859-62 (9th Cir. 1993) (applying California law) (compelling disclosure of confidential sources because it “goes to the heart of the claim”).

Section 13-90-119(5) states that "[i]n any trial to a jury in an action in which a newsperson is a party as a result of such person's activities as a newsperson and in which the newsperson has invoked the privilege created by subsection (2) of this section, the jury shall be neither informed nor allowed to learn that such newsperson invoked such privilege or has thereby declined to disclose any news information."

Neither the Shield Law nor the case law discusses how the privilege would be affected if the media were a party to the action.

The D.C. Circuit has noted that when the media is a party to litigation, the equities generally weigh more heavily in favor of disclosure.  Zerilli v. Smith, 656 F.2d 705, 714 (D.C. Cir. 1981).  For instance, in SEC v. McGoff, the D.C. Circuit concluded that subpoenas duces tecum issued by the SEC in its investigation of a publisher and his media companies were not overly broad and subject to First Amendment objection because the publisher was not a disinterested third party, but rather was the principal actor in the matters the SEC sought to investigate.  647 F.2d 185 (D.C. Cir. 1981).  The court held that the SEC had demonstrated a substantial relationship between the information sought and an important government interest, but it also approved of the lower court’s decision to allow the publisher “to retain documentation relating solely to ‘editorial policy’ or news gathering.”  Id. at 192; see also Mgmt. Info. Techs., Inc. v. Alyeska Pipeline Serv. Co., 151 F.R.D. 471, 477 (D.D.C. 1993) (a “leading indicator for the importance of the reporter’s information to the case is whether the reporter is a party”); Tripp v. Dep’t of Def. 284 F. Supp. 2d 50 (D.D.C. 2003) (same).

In Anderson v. Nixon, 444 F. Supp. 1195 (D.D.C. 1978), the court required the journalist-plaintiff to answer questions in depositions regarding confidential sources, warning that refusal to answer would result in default.  The court further suggested that the plaintiff had waived his qualified privilege by initiating and maintaining the lawsuit.  Id. at 1199-200.

The statute does not specify whether the privilege is different where the media is a party and where it is not. So long as an individual or agency fits the definition of a reporter," the privilege applies. See 10 Del. C. § 4320 (4).

The District’s shield law, and the cases decided under it, does not differentiate between litigation where the media is a party and cases where the media is not a party.  The D.C. Superior Court has applied the shield law to allow a media defendant to refuse to produce information regarding his sources and certain notes and other information.  Prentice v. McPhilemy, 27 Med. L. Rptr. 2377 (D.C. Super. Ct. 1999) (holding shield law applies in defamation actions).

Florida’s journalist privilege statute does not distinguish cases in which the media are parties from other cases. Even if the journalist is a party, the court must still apply the statutory balancing test. See, e.g., Gubarev v. BuzzFeed, Inc., Case No. 1:17-cv-60426-UNGARO/O’SULLIVAN, 2017 WL 6547898 , at *4-5 (S.D. Fla. 2017) (applying Florida statutory privilege in removed defamation case against website); TheStreet.com, Inc. v. Carroll, 20 So.3d 947, 948-50 (Fla. 4th DCA 2009) (applying statutory privilege in defamation case against website and reporter); News-Journal Corp. v. Carson, 741 So. 2d 572, 575-76 (Fla. 5th DCA 1999) (finding statutory privilege applicable but overcome in libel case against newspaper, officers and employees); Gadsden County Times, Inc. v. Horne, 426 So. 2d 1234, 1240 (Fla. 1st DCA 1983) (applying common law privilege).

However, the test may be easier to overcome when the journalist is a party to the underlying proceeding. See, e.g., Campus Communications, Inc. v. Freedman, 374 So. 2d 1169, 1170 (Fla. 1st DCA 1979) (“[W]hen a newspaper becomes entangled in purely civil litigation, at least if it is a party, governmental intrusion is only peripherally involved.”). For example, in a defamation action, a plaintiff may need to intrude upon the newsgathering process to show actual malice. See Carson, 741 So. 2d at 572 (where upholding the privilege has the effect of making “actual malice” impossible for the plaintiff to prove against the media defendant, upholding the privilege is less compelling). Particularly in defamation actions, where establishing what the publisher knew or did not know depends on the information that the journalist had in his or her possession at the time of publication, the privilege may not act as both a sword and a shield. In such a case, the privilege would apply, but it might be overcome on the theory that the media cannot invoke the privilege to prevent the other side from proving its case. See, e.g., Cable News Network, Inc. v. Black, 308 So. 3d 997, 1000-01 (Fla. 4th DCA 2020) (“Because this is a defamation action, upholding the privilege may make proof of fault impossible because ‘establishing what the publisher knew or did not know at the time of publication depends on the kind and quality of the information and identity of the sources at hand when the publication was made.’” (quoting Carson, 741 So. 2d at 576)); Carroll v. TheStreet.com, Inc., Case No. 11–CV–81173, 2014 WL 5474048, at *8 (S.D. Fla. 2014) (applying state law and finding disclosure of source was necessary for private-figure plaintiff to demonstrate that journalists did not use reasonable care in publishing allegedly defamatory article).

The privilege does not apply where a reporter with the information or material is a party. See O.C.G.A. § 24-5-508 (privilege applies “in any proceeding where the one asserting the privilege is not a party”). However, the Georgia Court of Appeals has specifically recognized that in defamation cases where the statutory privilege does not apply because the defendant reporter is a party, the trial courts must nevertheless strictly control discovery seeking disclosure of the identity of confidential sources. Atlanta Journal-Constitution v. Jewell, 251 Ga. App. 808, 811, 555 S.E. 2d 175, 180 (2001) (“other provisions of Georgia law require the trial court to balance the interests of the parties in virtually the same manner as the statute would require if it applied”), cert. denied, 537 U.S. 814 (2002). See also Bryant v. Cox Enterprises, 311 Ga. App. 230, 715 S.E. 2d 458 (2011) (affirming trial court’s denial of motion to compel disclosure of confidential sources and entry of summary judgment for newspaper).

There is no current Hawai‘i statute or other authority addressing this issue.

In both the Caldero and Sierra Life decisions, the reporter was a defendant in a civil lawsuit. That fact appears to have influenced the decisions of the Idaho Supreme Court in which it was ruled that there was no reporter's privilege. Similarly, it caused the court in the Sierra Life case to emphasize the traditional scope of discovery analysis as a means of weighing the respective interests of the parties, in the absence of a reporter's privilege. The decisions seem to indicate that the balancing test will be weighed more heavily in favor of disclosure in cases in which the media entity, or reporter, is a party.

Although there have been very few Illinois cases analyzing the application of the Statute where the media is a party, the Seventh Circuit indirectly addressed this issue in FMC Corp. v. Capital Cities/ABC, Inc., 915 F.2d 300 (7th Cir. 1990). There, the court held that, while the Statute did not apply to ABC, ABC could furnish the information in a manner designed to protect ABC’s sources.

The Indiana shield law does not differentiate between cases where the media is a party and where it is not. The shield law applies “in any legal proceedings or elsewhere.” Ind. Code § 34-46-4-2. In Jamerson v. Anderson Newspapers, Inc., the court rejected a libel plaintiff’s argument that the shield law violated Article I, section 12 of the Indiana Constitution, which guarantees a remedy for injury to reputation. 469 N.E.2d 1243, 1249–50 (Ind. App. 1984). The court concluded that the constitutional provision did not prevent the legislature from modifying or restricting the right to sue for libel, by allowing the shield law to prevent some discovery in libel cases. Id.

In Waterloo/Cedar Falls Courier, a media organization was a party to the underlying action but its editors, from whom the privileged information was sought, were not. 646 N.W.2d 97 (Iowa 2002). The court held the reporter's privilege is personal to the reporter and is not automatically waived when his or her news organization becomes a party to litigation. Id. at 101–02. As to cases in which a reporter asserting privilege is a party the court has repeatedly stated that "in civil cases where a reporter asserting the privilege is a party to the lawsuit and his actions, motivations or thought processes are integral elements of the claim, disclosure is often compelled." Id. at 102 (quoting Lamberto, 326 N.W.2d at 307 (stating that this reasoning applies most aptly to libel cases); see also Nelle, 2017 WL 7049237, at * 2 (citing the Iowa Supreme Court’s findings that “privilege is most likely to be overcome in a civil case in which the privilege holder is a party.”).

The Kansas shield law makes no distinction that would render the qualified privilege it provides inapplicable in a case in which the journalist is a party, such as a defamation, invasion of privacy or other tort case.  Nevertheless, Kansas case law predating the enactment of the shield law established that journalists who are parties to litigation do not have a First Amendment privilege shielding them from discovery into the editorial process or their state of mind, at least in defamation cases in which proof of actual malice is an essential element. See, e.g., Gleichenhaus v. Carlyle, 226 Kan. 167, 170, 597 P.2d. 611 (1979); Herbert v. Lando, 441 U.S. 153 (1979).  There is no case law in which a Kansas appellate court has been called upon to harmonize the statute with the preexisting case law.  In the author’s opinion, a Kansas appellate court would more likely than not attempt to harmonize the two, by holding that a court may not require a journalist to testify in this setting, but is not precluded from ruling that particular facts may be deemed established if the reporter refuses to testify regarding these facts, at least in a defamation case requiring proof of actual malice.

In Grandbouche v. Clancy, 825 F.2d 1463 (10th Cir. 1987), a somewhat unusual non-media First Amendment privilege case, the Tenth Circuit “refuse(d) to adopt a per se rule that a plaintiff waives his First Amendment privileges simply by bringing suit.” 825 F.2d at 1467.

Whether the media entity is a party to the lawsuit makes no difference with regard to the privilege.

The Fifth Circuit refused to recognize a distinction between a non-party media witness and a media party "invoking the qualified privilege to protect himself or his publication against a libel suit." Selcraig, 705 F.2d at 798. Even though the reporter was not a party to the suit, the fact that he was a witness to a material fact made the Miller test for media parties applicable. Id. at 799.

No reported state court reporter's privilege decision in Louisiana has made a distinction based on the media being a party. The shield law protecting unpublished non-confidential information states that the privilege applies in "any civil or criminal proceeding." La. R.S. 45:1459(B)(1).

Maine's courts have not addressed this issue.

Assertion of the privilege when the media is a party to the suit does not appear to be any different than if the media is not a party. Bilney v. The Evening Star Newspaper Co., 406 A.2d 652, 656, 5 Media L. Rep. 1931 (Md. Ct. Spec. App. 1979) (authors of one of the offending articles successfully asserted the privilege in declining to reveal the identity of the source of the information about appellants' poor academic standing).

The balancing required by the privilege is the same for cases where the media is a party and where it is not. Nevertheless, the balance is likely to tip towards disclosure where the media is a party and the evidence sought goes to the heart of the case. See Dow Jones & Co. v. Superior Court, 303 N.E.2d 847 (Mass. 1973)(the same common law balancing test applied when a news journal, which was party to a libel suit, claimed reporter's privilege to protect the identity of a confidential source.); Ayash v. Dana-Farber Institute, 443 Mass. 367 (Mass. 2005)( Defendant reporter and newspaper were ordered to reveal the identity of a confidential source, and the court found that the plaintiff's interest in obtaining the source's identity outweighed any potential damage to the free flow of information.).

There are no reported cases distinguishing the application of the privilege in a case in which the media is a party versus one in which the media is not a party.

In Grunseth v. Marriott Corp., the court noted that the reporter was not a party in the case where plaintiff was seeking to compel disclosure of sources. 868 F. Supp. 333, 335 (D.D.C. 1994) (applying Minnesota law in part). In ordering disclosure by defendant in Johnson v. CBS, Inc., the court observed that "[t]his is not a case where a non-party is being summoned to testify." No. CIV-3-95-624, 1996 WL 907735, *5 (D. Minn. Sept. 14, 1996) (unpublished).

In Bauer v. Gannett Co., Inc. (KARE 11), the court of appeals articulated five factors to be applied in "any consideration of cases arising under the [Minnesota Free Flow of Information] Act." 557 N.W.2d 608, 611 (Minn. Ct. App. 1997), overruled to the extent inconsistent with Weinberger v. Maplewood Rev., 668 N.W.2d 667, 672 n.5 (Minn. 2003) One of those factors was whether the media was a party to the litigation:

First, the determination of whether the privilege applies is influenced by the nature of the litigation and whether the reporter or news organization from whom disclosure is sought is a party to the litigation. When the reporter is a party to the litigation, the balance may tip more in favor of disclosure than when the reporter is not a party. This is particularly true in a suit alleging the defamation of a public official or public figure because plaintiffs in those cases must prove that the defamatory publication was made with "actual malice." The disclosure of a confidential source may be essential to the proof of actual malice if a plaintiff must demonstrate that the reporter's source was unreliable. . . . We stress, however, that this consideration is not dispositive, but rather one of multiple factors to be weighed in the district court's decision.

557 N.W.2d at 611. In a later defamation case in which the reporter and newspaper were not parties, the court of appeals applied the same factor, holding that

making the reporter a witness against sources[] has significant potential to interfere with a reporter's ability to gather news. Given the nature of this case, the fact that [the reporter] is not, by asserting the privilege, shielding himself from liability[,] and the potential burden to the newsgathering process of using reporters to impeach or testify against their sources, we conclude that this factor weighs against disclosure.

Weinberger v. Maplewood Review, 648 N.W.2d 249, 258 (Minn. App. 2002), rev'd, 668 N.W.2d 667. Whether state courts will continue to consider this factor after the supreme court's decision in Weinberger is unclear. See, e.g., Weinberger, 668 N.W.2d at 675, n.9 (overruling Bauer to the extent it was inconsistent with the court's holding, without discussing the nonparty status of the reporter and newspaper).

In Minnesota federal court, the journalist’s non-party status may weigh heavily against compelling disclosure of confidential sources or other unpublished information:

In calibrating the scale to weigh the respective concerns in this matter, it must be noted that [the reporter] is a stranger to this litigation. He is neither a party nor a witness to any of the underlying facts; he has no dog in this fight and has not accepted voluntarily the burden of discovery attendant to modern civil litigation, as the parties have. Accordingly, the concern for the unwanted burden thrust upon him is a consideration entitled to special weight in evaluating the balance of competing interests.

Keefe v. City of Minneapolis, 41 Med. L. Rep.1275, 1278 (D. Minn. May 25, 2012).

In Brinston v. Dunn, the federal district court framed the analysis as "to what extent qualified privilege protects a non-party journalist against compelled disclosure of information obtained in the course of reporting a story." 919 F. Supp. 240, 242 (S.D. Miss. 1996) (emphasis added). However, the federal district court in Lousteau v. City of Canton, Mississippi found that the qualified privilege applied to a news reporter who was a party but that the news reporter’s act of filing the lawsuit and the defenses asserted by defendants placed the sources of the reporter’s information in issue and removed the protection otherwise afforded by the privilege. No. 3:11CV676-DPJ-FKB, 2013 WL 1827738, at *2 (S.D. Miss. Apr. 30, 2013) (applying Miller v. Transamerican Press, Inc., 621 F.2d 721 (5th Cir. 1980)). Likewise, the court in Miller applied the three-part test articulated in Garland v. Torre, 259 F.2d 545 (2d Cir. 1958), within the context of a libel suit against a media defendant.

There is no statutory or case law addressing this issue.

The privilege does not differentiate between cases where the media is a party and where it is not.

The statute does not differentiate between cases where the media is a party and where it is not.

NRS 49.275 does not make any distinction between cases where the media is a party and where it is not. The Nevada Supreme Court, however, has held that in types of cases such as libel, "once a media litigant has invoked the protection of the news shield statute to resist discovery, the defendant may not later rely on the privileged information as a defense." Diaz v. Eighth Judicial Dist. Court, 116 Nev. 88, 993 P.2d 50, 59 (2000).

In Downing v. Monitor Publishing Co., Inc., 120 N.H. 383 (1980), the Court did not reject the privilege because the publisher asserted the privilege. Rather, it ruled the privilege did not apply where the plaintiff had to prove “actual malice” under the New York Times rule.

In Mortgage Specialists, Inc. v. Implode-Explode Heavy Industries, Inc., the Court ruled that a website publisher could assert the privilege to protect a confidential source. The publisher posted an article about administrative action taken against the plaintiff that included a link to a loan chart provided by the source. The Court rejected the plaintiff’s argument that the privilege did not apply because the defendant was not a member of the traditional media.  160 N.H. at 233-34.  It concluded that, because the defendant’s “website serves an informative function and contributes to the flow of information to the public,” the defendant was a “reporter for purposes of the newsgathering privilege.” Id. at 234.

Whether or not the media is a party to the litigation has no bearing on the invocation of the privilege.

Neither Rule 11-514 nor the statutory privilege applicable to nonjudicial proceedings explicitly differentiates between cases to which the media are parties and those to which they are not.

Media as a party

Where the media is a defendant and its newsgathering is the issue, whether it be an intrusion claim or breach of contract claim brought by a source, the privilege will still apply but, to the extent that nonconfidential materials are sought, the three-part test is more likely to be met. See “Defamation actions” below.

If a media party seeks to protect a confidential source from disclosure during discovery, the opposing party may be entitled to an order precluding the media party from later disclosing that information in the case without first making the same information available to the opposing party. See New GPC Inc. v. Kaieteur Newspaper Inc., 127 A.D.3d 601, 602, 8 N.Y.S.3d 123 (N.Y. App. Div. 1st Dep’t 2015).

Journalist as grand jury witness

In People v. Doe, the court found that the qualified privilege does not protect a news reporter from an obligation to appear and testify before a grand jury when the purpose of the investigation concerns the newsgathering procedures of the reporter's employer, rather than news obtained from a third party source, confidential or otherwise.  148 Misc.2d 286, 560 N.Y.S.2d 177 (N.Y. Sup. Ct. St. Lawrence Cty. 1990).  In that case, a reporter covering a Department of Environmental Conservation hearing tape recorded the proceeding contrary to an order by the Administrative Law Judge. After the reporter’s account ran in a newspaper, a grand jury subpoenaed him in an investigation into a possible violation of state law.  Id.  The reporter moved to quash based on the Shield Law, but the court, citing the unusual circumstances, did not apply the Shield Law, instead, balanced the competing interests of the reporter’s privilege and the government's interest in an unimpeded grand jury investigation, and denied the motion to quash. Id.

The shield law makes no distinction between cases where the media is a party and cases where journalists have been issued third party subpoenas. However, the privilege only extends to information and documents obtained or prepared while a journalist is acting as a journalist, so it does not present the media with a shield against discovery generally. N.C. Gen. Stat. § 8-53.11(b).

The plain language of the statute does not differentiate between situations where the media is a party. However, in Grand Forks Herald v. Dist. Court in and for Grand Forks Cnty., 322 N.W.2d 850 (N.D. 1982), the North Dakota Supreme Court stated that if the media is a party to the litigation, then the trial court should take this fact into consideration in determining whether nondisclosure would result in a miscarriage of justice.

In a libel action, the court denied plaintiff's motion to compel disclosure of a newspaper reporter's documents that would reveal confidential sources because plaintiff failed to show that the information was relevant and material. Weiss v. Thomson Newspapers Inc., Licking C.P. No. 79-L-69231, 8 Med.L.Rptr. 1258 (Nov. 27, 1981).

Funeral home directors brought a defamation suit against a television station for broadcasting a story that reporters claimed was based on information from confidential sources. The court of appeals affirmed the trial court's ruling that reporters could refuse to answer questions that would tend to reveal sources. While plaintiffs claimed that the information was crucial for proving actual malice, the court recognized the privilege under the First Amendment and an absolute privilege in civil litigation under the shield law to protect confidential sources. House of Wheat v. Wright, 2d Dist. Montgomery No. 8614, 1985 WL 17381 (Oct. 10, 1985).

In a libel action brought by a mayor against a newspaper, a non-party publisher and editors from a different newspaper asserted protection under the shield law during depositions. The court ordered them to answer the questions even though the information sought was gathered in their professional news capacities because plaintiff asserted in good faith that the information would lead to admissible evidence on the issue of defendant newspaper's knowledge of falsity of the published statements. Stokes v. Lorain Journal Co., 26 Ohio Misc. 219, 266 N.E.2d 857 (Cuyahoga C.P. 1970).

The plaintiff moved to compel disclosure of outtakes and reporters' notes in a defamation action against a news station for broadcasting the arrest of plaintiff for drunk driving after which plaintiff was never charged. After in camera review of the material, the trial court granted plaintiff's motion to compel disclosure. The court of appeals declined to rule on the constitutional issues, finding that the determination of whether a qualified privilege existed depended upon a balancing of interest lying within the discretion of the trial court. Since no transcript existed of the in camera review, the court refused to find an abuse of discretion in the trial court's order to compel production of the material. Schreiber v. Multimedia of Ohio, Inc., 41 Ohio App. 3d 257, 535 N.E.2d 357 (1st Dist. 1987).

The statute does not depend on whether the media is a party.  It protects from disclosure all privileged information sought from a party or a non–party.

The scope of the privilege does not depend on whether the media is a party to the litigation, except that it does not apply in a civil action for defamation in which a defendant asserts a defense based on the content or source of otherwise privileged information. This exception to the shield law applies in any defamation action in which any defendant not only a media defendant asserts a defense based on the content or source of such information. Brown v. Gatti, 195 Or. App. 695, 99 P.3d 199 (2004), aff'd in part and rev'd in part on other grounds, 341 Or. 452, 145 P.3d 130 (2006). In Brown, the Oregon Court of Appeals expressly rejected the argument the exception is limited to instances in which a media defendant asserts a defense based on the content or source of otherwise privileged information.  Id. at 712-13.

1. Shield Law

The Shield Law applies without regard to whether the media is a party in the case. See, e.g., Sprague v. Walter, 543 A.2d 1078, 1081-82 (Pa. 1988).

2. First Amendment privilege

Pennsylvania courts apply the First Amendment reporter’s privilege, regardless of whether the media is a party. See Davis v. Glanton, 705 A.2d 879, 885 (Pa. Super. 1997) (the balancing test for the First Amendment reporter’s privilege must be applied on a case-by-case basis regardless of whether media is a party); Nothstein v. Velodrome Fund, Inc., 2020 Pa. Dist. & Cnty. Dec. LEXIS 2735, at *3-4 (Lehigh Cty. C.C.P. Oct. 6, 2020) (denying motion to compel journalist’s responses to requests for admission because requested information was protected by the Shield Law and reporter’s privilege); Melvin v. Doe, 49 Pa. D. & C.4th 449, 477 (Allegheny Cty. C.C.P. Nov. 15, 2000) (Wettick, J.) (suggesting that when media entity is a party, Pennsylvania courts apply same First Amendment privilege analysis as in other cases). As the Pennsylvania Supreme Court has noted, “the status of the media member as a party or non-party witness is relevant to the balancing inquiry, explaining that it should be more difficult to compel production from a non-party witness who has no personal interest in the matter.” Commonwealth v. Bowden, 838 A.2d 740, 754-55 (2003) (citing Riley v. City of Chester, 612 F.2d 708, 716 (3d Cir. 1979)).

The Act does not differentiate between cases where the media is a party and where it is not. In Capuano v. Outlet Co., 579 A.2d 469 (R.I. 1990), the television station argued that the party against whom disclosure is ordered must be a party defendant. The court disagreed but did not specifically rule on the issue.

The qualified privilege under the statute is available only in those cases where "the one asserting the privilege is not a party in interest to the proceeding." An interesting situation could arise where the publisher or broadcaster is the party in interest and the reporter seeks to assert the privilege. Unsympathetic courts might resort to strained alter ego and agency principles to compel the production of information.

In Hopewell, this is one of the factors to be considered in determining whether the circumstances warrant protection. The court held that "[d]isclosure is more appropriate if the news person is a party (not merely a witness), particularly in libel cases."

The Tennessee shield law does not differentiate between cases where the media or the particular journalist subpoenaed is a party and cases where they are not. But see the section on defamation cases.

The Texas shield law does not differentiate between cases where the media is a party and where it is not.

There is no statutory or case law addressing this issue.

Vermont courts have not addressed whether a different standard applies when the media is a party to the action.  The Vermont Shield Law does not draw a distinction between parties and non-parties to an action.  See 12 V.S.A. § 1615(a) (applying to journalists broadly).

The case law does not differentiate between situations in which the media is not a party and cases in which the media is a party. See Clemente v. Clemente, 56 Va. Cir. 530 (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); Philip Morris Cos. v. Am. Broad. Co., 36 Va. Cir. 1 (Richmond 1994); Church of Scientology Int’l v. Daniels, 992 F.2d 1329 (4th Cir. 1993) (upholding denial of motion to compel in a defamation case as to materials from an editorial board meeting); Gilbertson v. Jones, Civil No. 3:16cv255 (REP), 2016 WL 6518659 (E.D. Va. Sept. 22, 2016) (granting in part and denying in part a motion to quash a third-party subpoena to a television station in a defamation case); Federico v. Lincoln Military Hous., LLC, No. 2:12-CV-80, 2014 WL 3962823 (E.D. Va. Aug. 13, 2014) (granting in part and denying in part a motion to quash a subpoena to a reporter for information relating to the reporter’s interaction with plaintiffs in a civil case).

Washington courts recognize application of a confidential source privilege even where the media is a party. In Senear, 97 Wn.2d at 150-51, the newspaper was a defendant in a libel action and the Washington Supreme Court reversed a trial court order directing the newspaper to answer an interrogatory seeking the identity of a confidential source.

A year later, the same court stated that "reporters who are themselves plaintiffs have little or no privilege" but reporters "who are defendants and reporters who are not involved in the action at all . . . are significantly protected by Senear" and "reporters who are not parties (and whose reporters are not parties) receive still greater protection." Clampitt, 98 Wn.2d at 644. One year later, in a criminal case, the Washington Supreme Court stated, in passing: "Although journalists who are parties have little or no privilege, a news reporter, as here, who is not a party to the underlying action, should receive greater protections." Rinaldo, 102 Wn.2d at 754.

There are no state court decisions regarding non-confidential materials. It is possible that, in those circumstances, the Washington courts would evolve a different test for civil discovery from media parties.

Section 1 of the shield statute, by its terms, applies to any proceeding in which there is a "body with the power to compel the news media to testify, produce, or otherwise disclose" the information covered by the statute. See RCW 5.68.010(1).

In West Virginia, the privilege recognized by the Hudok court applies with less force in libel cases (especially where a press entity is a party). The important distinction does not appear to be based solely on the reporter or press entity's status as a defendant but on whether the claim made is one for libel. Presumably, where a reporter's published work has led to a libel claim, even where the reporter is not a defendant in the lawsuit, a lower level of protection applies. In distinguishing libel cases, the Hudok court compared the application of the qualified privilege in different types of proceedings. It held that the reporter's privilege "will yield in proceedings before a grand jury where the reporter has personal knowledge or is aware of confidential sources that bear on the criminal investigation," but in civil cases, the privilege will be "more vigorously applied . . . except [to] those in the libel area." 389 S.E.2d at 193. The basis for the foregoing was the Hudok court's reliance on Zerilli v. Smith, 656 F.2d 705, 712 (D.C. Cir. 1981), where the D.C. Court of Appeals "recognized the distinction between civil actions in which the reporter is a party and those in which he is not. Where the reporter is a party, and particularly in a libel action, 'the equities weigh somewhat more heavily in favor of disclosure.' 656 F.2d at 714." See State ex rel. Lincoln Journal, Inc. v. Hustead, 228 W. Va. 17, 26, 716 S.E.2d 507, 516 (2011) (remanding case to the circuit court for a “specific Hudok hearing”).

Notably, however, Hustead was decided prior to the enactment of W.Va. Code § 57-3-10, which recognizes protections against compelled disclosure of confidential sources, regardless of whether the press is a defendant or a reporter is subpoenaed in the context of a libel case.

The shield law applies to the issuance of subpoenas to news persons.  Wis. Stat. § 885.14(2).  It does not address discovery sought from the news media as a party.

Wyoming has no statutory or reported case law regarding a reporter’s privilege in this area.