The number of subpoenas that media organizations received in 1999 fell to an average of three per outlet, down from 4.6 in 1997, according to a new survey by the Reporters Committee for Freedom of the Press. But journalists around the country still found subpoenas for their work product burdensome.
“It’s a pain!” an anonymous California television station news manager said in one survey response. “The defense is usually ‘fishing’ and the prosecution wants evidence.”
“Television stations continue to be the most vulnerable to subpoenas,” said Reporters Committee Executive Director Lucy Dalglish. “Lawyers seem to believe that a jury will find evidence presented by television more persuasive than evidence from a live witness.”
As in previous years, subpoenas sent to broadcasters represented the heavy majority of subpoenas received. Of the 1,326 subpoenas that were reported by media outlets, broadcasters received 71 percent (936) and print organizations 29 percent (390), despite the fact that print respondents outnumbered broadcaster respondents 3-to1. Newspapers averaged 1.2 subpoenas per outlet, and television stations reported 8.4 subpoenas per outlet.
The survey, Agents of Discovery, was released the week of March 26. The biennial report gathers subpoena information from media outlets across the country. A questionnaire sent to newsrooms asked them to report the number of subpoenas received in 1999 and how those subpoenas were resolved. The Reporters Committee sent 2,321 survey requests to television stations and newspapers, and received 440 responses, for a 19 percent response rate. The response rate for the 1997 survey was 29 percent.
The survey began in 1990 in an effort to document the negative impact of increasing numbers of subpoenas on the media. The survey report was sent to media outlets and attorneys, who then could use it as empirical proof of the uneven way in which media organizations were being subpoenaed, often as a discovery tool by attorneys in cases the media covered.
The 440 respondents reported being served with 1,326 subpoenas. The highest number of subpoenas reported by any outlet was 50, which was reported by two unidentified television stations.
Of those respondents who reported receiving at least one subpoena, the average number during the entire year was 6.6. In 1997, the average number was 8.4. Nearly half of all the respondents, 46 percent, received at least one subpoena.
Many of the respondents said responding to the subpoenas required a considerable amount of time.
“I assume lawyers learn quickly to use news gatherers as their fact chasers,” Huntsville, Alabama’s WHNT-TV Managing Editor Bob Knowles said in another response. Responding to subpoenas “is like busy work we must do under court order. Subpoena compliance is not a function of putting news on the air!”
“While most of our subpoenas only seek broadcast material, some of those have been huge time wasters,” Paul Conti of WNYT-TV in Albany, N.Y., said. “The average subpoena takes us a couple of hours to handle with two people. About six took several days and several people because they wanted many years worth of materials.”
The most surprising change from 1997 seems to be the fewer number of subpoenas issued in non-shield law states. Shield law states averaged 3.4 subpoenas per media outlet in 1999, down from 4.7 two years earlier. Non-shield law states averaged 2.3 subpoenas, a drop from the 4.3 subpoenas per media outlet in 1997.
The survey is available online at: https://www.rcfp.org/agents