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VI. Substantive law on contesting subpoenas


  • 5th Circuit

    In civil cases, the Fifth Circuit has recognized a qualified privilege for reporters. Miller v. Transamerican Press, Inc., 621 F.2d 721, 723, as modified, 628 F.2d 932 (5th Cir. 1980); In re Selcraig, 705 F.2d 789, 792 (5th Cir. 1983). This privilege can be overcome only if the party seeking the information provides substantial evidence showing that the information is relevant, cannot be obtained by alternative means, and has a compelling interest in obtaining it. Miller, 621 F.2d at 726.

    In Miller, a libel case, the court held that the reporter's privilege had been overcome because the plaintiff demonstrated that learning the identity of the confidential sources was the only way he could prove his claim of malice. Miller, 621 F.2d at 726. In Selcraig, a civil case in which the media was not a party, the court found that the party serving the subpoena had not demonstrated that the identity of a reporter's confidential sources was necessary to the presentation of the plaintiff's civil rights claim. In re Selcraig, 705 F.2d 789, 797 (5th Cir. 1983). The court reasoned that the identity of the sources would only be necessary if the plaintiff succeeded in proving a prima facie case for liability. Id. at 798.

    The Fifth Circuit has not ruled on whether a reporter's privilege exists with regard to non-confidential sources of information in civil cases. However, in a footnote to Pressey v. Patterson, 898 F.2d 1018 (5th Cir. 1990), the court suggested that had the question been before it, it would have reversed the trial court's application of the privilege to tape recorded interviews with a non-confidential source. Id. at 1022 n.4. Similarly, Smith recognized that "the existence of a confidential relationship that the law should foster is critical to the establishment of a privilege," and that the Fifth Circuit has "never recognized a privilege for reporters not to reveal confidential information." United States v. Smith, 135 F.3d 963, 972 (5th Cir. 1998). Before Smith was decided, district courts had reached different conclusions regarding the use of the reporter's privilege to protect non-confidential sources. In De La Paz v. Henry's Diner, the court held that no privilege existed for tape recorded interviews with the defendants in a suit filed for negligence, defamation, invasion of privacy, and other claims. 946 F. Supp. 484 (N.D. Tex. 1996). In contrast, the district court for the Southern District of Mississippi held that the privilege applied and that the party seeking the information had not overcome the privilege because the subpoenaed testimony was not relevant and necessary to her motion for summary judgment. Brinston v. Dunn, 919 F. Supp. 240, 244 (S.D. Miss. 1996).

    Finally, the Fifth Circuit has construed the Supreme Court's holding in Branzburg v. Hayes, 408 U.S. 665 (1972), to preclude application of a qualified First Amendment reporter's privilege against subpoenas seeking non-confidential sources in grand jury proceedings and criminal cases. In Smith, the Fifth Circuit read Branzburg to preclude assertion of a reporter's privilege when a journalist is subpoenaed to testify before a grand jury, and held that the public interests at issue in the criminal trial context were no less compelling than those at stake in the grand jury setting. United States v. Smith, 135 F.3d 963, 970-71 (1998). In so doing, it reversed the lower court's decision to quash a subpoena for videos of a reporter interviewing a suspected arsonist. Citing Branzburg, the court concluded that only when grand jury process is not exercised in good faith may the press receive protection for non-confidential information that is subpoenaed in a criminal case. Id. at 969, 971.

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  • District of Columbia

    This section analyzes the substantive law that makes up the reporter’s privilege and how the party issuing a subpoena can avoid the protections of the privilege.

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  • Idaho

    Because Idaho does not have a shield law, the substantive law governing efforts to contest a subpoena is drawn entirely from the Idaho decisions discussed earlier in this outline and from those federal cases that discuss the privilege as it may exist based upon the First Amendment. Therefore, the argument of the reporter seeking to invoke the privilege should pay careful heed to the nuances of the Idaho cases and highlight the parallel facts supporting the privilege and the distinguishing facts that make the case inapposite to the Idaho decisions that have held no privilege exists. Similarly, the party seeking to thwart an attempt to quash the subpoena should emphasize the similarities with the Idaho cases ruling against application of the privilege and should also try to discount any claim that that the reporter's activities in the future might be chilled as a result of forcing his or her testimony in the current case.

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  • Mississippi

    Mississippi courts have held that journalists enjoy a "qualified privilege." The criteria necessary to overcome such a qualified privilege, and the burden of proof one must meet, is to show (1) that the testimony of the reporter is highly relevant to the seeking parties case; (2) there is a compelling need for the testimony sufficient to override the reporter's First Amendment privilege; and (3) the seeking party has unsuccessfully attempted to obtain the information possessed by the reporter from other sources. See Charles R. Pope v. The Village Apartments, Ltd., and other Unknown Persons, Hinds County Circuit Court No. 92-71-436 CV, January 3, 1995; Mary Doe v. Maurin-Ogden Management Corp., Hinds County Circuit Court No. 90-64-502, February 8, 1991; State of Mississippi v. Ralph Hand III, Circuit Court of Tallahatchie County, No. CR89-49-C (T-2), July 31, 1990; In re Grand Jury Subpoena, Hinds County Circuit Court, No. 38664, October 4, 1989.

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  • Wyoming

    Wyoming has no substantive state law on contesting subpoenas served upon reporters. Guidance may be found by examining the substantive law in the Tenth Circuit Court of Appeals in this area.

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