REPORTER'S PRIVILEGE:

REPORTER'S PRIVILEGE: 7TH CIR. The Reporters Committee for Freedom of the Press A chapter from our comprehensive compendium of information on the reporter's privilege —the right not to be compelled to testify or disclose sources and information in court — in each state and federal circuit. The complete project can be viewed at www.rcfp.org/privilege Repor EFTA01205046 REPORTER'S PRIVILEGE COMPENDIUM TM CIR. Credits & Copyright This project was initially made possible by a generous grant from the Phillip L. Graham Fund. Published by The Reporters Committee for Freedom of the Press. Executive Director: Lucy A. Dalglish Editors: Gregg P. Leslie, Elizabeth Soja, Wendy Tannenbaum, Monica Dias, Dan Bischof Copyright 2002-2010 by The Reporters Committee for Freedom of the Press, 1101 Wilson Blvd., Suite 1100, Arlington, VA 22209. Phone: (703) 807-2100 Email: [email protected]. All rights reserved. Reproduction rights in individual state and federal circuit outlines are held jointly by the author of the outline and The Re- portersCommittee for Freedom of the Press. Rights for the collective work and other explanatory and introductory material are held by the Reporters Committee. Educational uses. Those wishing to reproduce parts of this work for educational and nonprofit uses can do so freely if they meet thefollowing conditions. Educational institutions: No charge is passed on to students, other than the direct cost of re- producing pages. Nonprofit groups: No fee is charged for the seminar or other meeting where this will be distributed, other than to cover direct expenses of the seminar. Distribution: This license is meant to cover distribution of printed copies of parts of this work. It should not be reproduced in another publication or posted to a Web site. Those needing to provide Web access can post links directly to the project on the Reporters Committee's site: http://www.rcfp.orglprivilege All oilier uses. Those wishing to reproduce materials from this work should contact the Reporters Committee to negotiate a reprint fee based on the amount of information and number of copies distributed. Reprints. This document will be available in various printed forms soon. Please check back for updates. or contact the Re- porters Committee for more information. Reporters Committee for Freedom of Mr Press Page EFTA01205047 REPORTER'S PRIVILEGE COMPENDIUM 7TH CIR. The Reporter's Privilege Compendium: An Introduction Since the first edition of this guide was published in 2002. it would be difficult to say that things have gotten better for reporters faced with subpoenas. Judith Miller spent 85 days in jail in 2005 for refusing to disclose her sources in the controversy over the out- ing of CIA operative Valerie Plame. Freelance videographer Josh Wolf was released after 226 days in jail for refusing to testify about what he saw at a political protest. And at the time of this writing, former USA Today reporter Toni Locy is appealing her contempt conviction, which was set to cost her as much as $5.000 a day. for not revealing her sources for a story on the anthrax investigations. This recent round of controversies underscores a problem that journalists have faced for decades: give up your source or pay the price: either jail or heavy fines. Most states and federal circuits have some sort of reporter's privilege —the right to refuse to testify —that allows journalists to keep their sources confidential. But in every jurisdiction, the parameters of that right are different. Some- times. the privilege is based on a statute enacted by the legislature —a shield law. In others. courts have found the privilege based on a constitutional right. Some privileges cover non-confidential infor- mation. some don't. Freelancers are covered in some states. but not others. In addition. many reporters don't work with attorneys who are familiar with this topic. Even attorneys who handle a newspaper's libel suits may not be familiar with the law on the reporter's privi- lege in the state. Because of these difficulties. reporters and their lawyers often don't have access to the best information on how to fight a subpoena. The Reporters Committee for Freedom of the Press decided that something could be done about this. and thus this project was born. Compiled by lawyers who have handled these cases an d helped shape the law in their states and federal circuits, this guide is meant to help both journalists who want to know more about the reporter's privilege and lawyers who need to know the ins and outs of getting a subpoena quashed. Journalists should note that reading this guide is not meant as a substitute for working with a licensed attorney in your state when you try to have a subpoena quashed. You should always consult an attorney before trying to negotiate with a party who wants to obtain your testimony or when appearing in court to get a subpoena quashed or testifying. If your news organization does not have an attorney, or if you are not affiliated with an established organiza- tion. the Reporters Committee can help you try to find an attorney in your area. Above the law? Outside of journalism circles, the reporter's privilege suffers from an image problem. Critics often look at reporter's shield laws and think that journalists are declaring that they are "above the law." violating the understood standard that a court is entitled to "every man's evidence." as courts themselves often say. But courts have always recognized the concept of 'privileges." allowing certain individuals to refuse to testify, out of an acknowl- edgment that there are societal interests that can trump the demand for all evidence. Journalists need to emphasize to both the coons and the public that they are not above the law, but that instead they must be able to remain independent, so that they can maintain their traditional role as neutral watchdogs and objective observers. When reporters are called into court to testify for or against a party. their credibility is harmed. Potential sources come to see them as agents of the state, or supporters of criminal defendants, or as advocates for one side or the other in civil disputes. Critics also contend that exempting journalists from the duty to testify will be detrimental to the administration of justice. and will result in criminals going free for a lack of evidence. But 35 states and the District of Columbia have shield laws, and the Department of Justice imposes restrictions on federal agents and prosecutors who wish to subpoena journalists, and yet there has been no indica- tion that the courts have stopped working or that justice has suf- fered. Courts in Maryland. in fact. have managed to function with a reporter's shield law for more than a century. In 1896, after a re- porter was jailed for refusing to disclose a source, a Baltimore journalists' club persuaded the General Assembly to enact legisla- tion that would protect them from having to reveal sources' identi- ties in court. The statute has been amended a few times —mainly to cover more types of information and include broadcast journalists once that medium was created. But the state has never had the need to rescind the protection. And the privilege made news internationally in December 2002 when the appeals court of the United Nations International Crimi- nal Tribunal decided that a qualified reporter's privilege should be applied to protect war correspondents from being forced to provide evidence in prosecutions before the tribunal. The hows & whys of the reporter's privilege In the course of gathering news. journalists frequently rely on confidential sources. Many sources claim that they will be subject to retribution for exposing matters of public importance to the press unless their identity remains confidential. Doctor-patient. lawyer-client and priest-penitent relationships have long been privileged, allowing recipients to withhold confi- dential information learned in their professional capacity. However. the reporter's privilege is much less developed, and journalists are frequently asked to reveal confidential sources and information they have obtained during newsgathering to attorneys, the govern- ment and courts. These 'requests" usually come from attorneys for the government or private litigants as demands called subpoenas. In the most recent phase of a five-year study on the incidence of subpoenas served on the news media, Agents of Discovery. The Reporters Committee for Freedom of the Press reported that 1.326 subpoenas were served on 440 news organizations in 1999. For- ty-six percent of all news media responding said they received at least one subpoena during 1999. In criminal cases, prosecutors argue that reporters. like other citizens. are obligated to provide relevant evidence concerning the commission of a crime. Criminal defendants argue that a journalist has information that is essential to their defense. and that the Sixth Amendment right to a fair trial outweighs any First Amendment right that the reporter may have. Civil litigants may have no con- stitutional interest to assert, but will argue that nevertheless they are entitled to all evidence relevant to their case. When reporters challenge subpoenas. they argue that they must be able to promise confidentiality in order to obtain information on matters of public importance. Forced disclosure of confidential or unpublished sources and information will cause individuals to re- Reporters Committee for Freedom of the Press Page EFTA01205048 REPORTER'S PRIVILEGE COMPENDIUM 7TH CIR. fuse to talk to reporters. resulting in a -chilling effect" on the free flow of information and the public's right to know. When asked to produce their notes. documents, or other un- published material obtained during news gathering. journalists ar- gue that these subpoenas intrude on the editorial process. and thus violate their First Amendment right to speak without fear of state interference. Some litigants who request information from the me- dia are simply lazy. Rather than investigating to find appropriate witnesses. these litigants find it simpler and cheaper to compel journalists to reveal their sources or to hand over information. But journalists also have legitimate reasons to oppose subpoenas over published. non-confidential information. Responding to such subpoenas consumes staff time and resources that should be used for reporting and editing. If a court challenge to a subpoena is not resolved in the report- er's favor. he or she is caught between betraying a source or risking a contempt of court citation, which most likely will include a fine or jail time. Most journalists feel an obligation to protect their confidential sources even if threatened with jail time. When appeals have been exhausted. the decision to reveal a source is a difficult question of journalism ethics. further complicated by the possibility that a con- fidential source whose identity is revealed may try to sue the re- porter and his or her news organization under a theory of promis- sory estoppel. similar to breach of contract. The U.S. Supreme Court has held that such suits do not violate the First Amendment rights of the media. (Cohen v. Cowles Media Co.. 501 U.S. 663 (1991)) The sources of the reporter's privilege First Amendment protection. The U.S. Supreme Court last con- sidered a constitutionally based reporter's privilege in 1972 in Branthurg v. Hayes. 408 U.S. 665 (1972). Justice Byron White. joined by three other justices. wrote the opinion for the Court. holding that the First Amendment does not protect a journalist who has actually witnessed criminal activity from revealing his or her information to a grand jury. However a concurring opinion by Jus- tice Lewis Powell and a dissenting opinion by Justice Potter Stew- art recognized a qualified privilege for reporters. The privilege as described by Stewart weighs the First Amendment rights of report- ers against the subpoenaing party's need for disclosure. When bal- ancing these interests. courts should consider whether the infor- mation is relevant and material to the party's case, whether there is a compelling and overriding interest in obtaining the information. and whether the information could be obtained from any source other than the media. In some cases, courts require that a journalist show that he or she promised a source confidentiality. Two other justices joined Justice Stewan's dissent. These four justices together with Justice William O. Douglas. who also dis-sented from the Court's opinion and said that the First Amendment provided journalists with almost complete immunity from being compelled to testify before grand juries. gave the qualified privilege issue a majority. Although the high court has not revisited the issue. almost all the federal circuits and many state courts have acknowl- edged at least some form of a qualified constitutional privilege. However, some courts, including the federal appeals court in New Orleans (5th Cir.). have recently interpreted Bramhurg as holding that the First Amendment protects the media from subpoe- nas only when the subpoenas are being used to harass the press. (United States v. Smith. 135 F.3d 963 (5th Cir. 1998)). State constitutions, common law and court rules. Many states have recognized a reporter's privilege based on state law. For ex- ample. New York's highest court recognized a qualified reporter's privilege under its own state constitution, protecting both confiden- tial and non-confidential materials. (O'Neill v. Oakgrove Construc- tion Inc•., 71 M.2d 521 (1988)). Others states base a reporter's privilege on common law. Before the state enacted a shield law in 2007. the Supreme Court in Washington state recognized a quali- fied reporter's privilege in civil cases, later extending it to criminal trials. (Senear v. Daily Journal-American. 97 Wash.2d 148. 641 P.2d 1180 (1982). on remand, 8 Media L. Rep. 2489 (Wash. Super. Ct. 1982)). And in a third option. courts can create their own rules of procedure. The Utah Supreme Court adopted a reporter's privi- lege in its court rules in 2008. as did the New Mexico high court years before. Even in the absence of an applicable shield law or court-recognized privilege, journalists occasionally have been suc- cessful in persuading courts to quash subpoenas based on general- ly-applicable protections such as state and federal rules of evidence. which allow the quashing of subpoenas for information that is not relevant or where the effort to produce it would be too cumber- some. Statutory protection. In addition to case law. 35 states and the District of Columbia have enacted statutes —shield laws —that give journalists some form of privilege against compelled produc- tion of confidential or unpublished information. The laws vary in detail and scope from state to state. but generally give greater pro- tection to journalists than the state or federal constitution. according to many coups. However. shield laws usually have specific limits that exclude some journalists or certain material from coverage. For instance. many of the statutes define "journalist" in a way that only protects those who work full-time for a newspaper or broadcast station. Freelance writers, book authors. Internet journalists. and many others are left in the cold. and have to rely on the First Amendment for protection. Broad exceptions for eyewitness testimony or for libel defendants also can remove protection from journalists, even though these situations often show the greatest need for a reporter's privilege. Reporters Committee for Freedom of Mr Press Page EFTA01205049 REPORTER'S PRIVILEGE COMPENDIUM MI CIR. The Reporter's Privilege Compendium: Questions and Answers What is a subpoena? A subpoena is a notice that you have been called to appear at a trial, deposition or other coup proceeding to answer questions or to supply specified documents. A coup may later order you to do so and impose a sanction if you fail to comply. Do I have to respond to a subpoena? In a word. yes. Ignoring a subpoena is a bad idea. Failure to respond can lead to charges of contempt of court. fines, and in some cases. jail time. Even a court in another state may. under some circumstances, have authority to order you to comply with a subpoena. What are my options? Your first response to a subpoena should be to discuss it with an attorney if at all possible. Under no circumstances should you comply with a subpoena without first consulting a lawyer. It is imperative that your editor or your news organization's legal counsel be advised as soon as you have been served. Sometimes the person who subpoenaed you can be persuaded to withdraw it. Some attorneys use subpoenas to conduct "fishing expeditions." broad nets cast out just to see if anything comes back. When they learn that they will have to fight a motion to quash their subpoenas. lawyers sometimes drop their demands altogether or agree to settle for less than what they originally asked for, such as an affidavit attesting to the accuracy of a story rather than in-court testimony. Sonic news organizations. particularly broadcasters whose aired videotape is subpoenaed. have deflected burdensome demands by agreeing to comply. but charging the subpoenaing party an appro- priate fee for research time, tape duplication and the like. If the person who subpoenaed you won't withdraw it, you may have to fight the subpoena in court. Your lawyer will file a motion to quash. which asks the judge to rule that you don't have to com- ply with the subpoena. If the court grants your motion. you're off the hook —unless that order is itself appealed. If your motion isn't granted. the court will usually order you to comply. or at the very least to disclose the demanded materials to the court so the judge may inspect them and determine whether any of the materials must be disclosed to the party seeking them. That order can itself be appealed to a higher court. If all appeals are unsuccessful, you could face sanctions if you continue to defy the court's order. Sanctions may include fines imposed on your station or newspaper or on you personally. or imprisonment. In many cases a party may subpoena you only to intimidate you. or gamble that you will not exercise your rights. By consult- ing a lawyer and your editors, you can decide whether to seek to quash the subpoena or to comply with it. This decision should be made with full knowledge of your rights under the First Amend- ment. common law, state constitution or statute. They won't drop IL I want to fight it. Do I have a chance? This is a complicated question. If your state has a shield law, your lawyer must determine whether it will apply to you. to the information sought and to the type of proceeding involved. Even if your state does not have a shield law, or if your situation seems to fall outside its scope. the state's courts may have recognized some common law or constitu-tional privilege that will protect you. Each state is different, and many courts do not recognize the privilege in certain situations. Whether or not a statutory or other privilege protects you in a particular situation may depend on a number of factors. For exam- ple. some shield laws provide absolute protection in some circum- stances, but most offer only a qualified privilege. A qualified priv- ilege generally creates a presumption that you will not have to comply with a subpoena. but it can be overcome if the subpoenaing party can show that information in your possession is essential to the case, goes to the heart of the matter before the court, and can- not be obtained from an alternative, non-journalist source. Some shield laws protect only journalists who work full-time for a newspaper. news magazine, broadcaster or cablecaster. Free- lancers, book authors, scholarly researchers and other "non-professional" journalists may not be covered by some stat- utes. Other factors that may determine the scope of the privilege in- clude whether the underlying proceeding is criminal or civil. whether the identity of a confidential source or other confidential information is involved, and whether you or your employer is al- ready a party to the underlying case, such as a defendant in a libel suit. The decision to fight may not be yours alone. The lawyer may have to consider your news organization's policy for complying with subpoenas and for revealing unpublished information or source names. If a subpoena requests only published or broadcast material. your newspaper or station may elect to turn over copies of these materials without dispute. If the materials sought are un- published. such as notes or outtakes. or concern confidential sources, it is unlikely that your employer has a policy to turn over these materials —at least without first contesting the subpoena. Every journalist should be familiar with his or her news organ- ization's policy on retaining notes. tapes and drafts of articles. You should follow the ivies and do so consistently. If your news organ- ization has no formal policy, talk to your editors about establishing one. Never destroy notes. tapes. drafts or other documents once you have been served with a subpoena. In some situations, your news organization may not agree that sources or materials should be withheld, and may try to persuade you to reveal the information. If the interests of the organization differ from yours. it may be appropriate for you to seek separate counsel. Can a judge examine the Information before ordering me to comply with a subpoena? Some states require or at least allow judges to order journalists to disclose subpoenaed information to them before revealing it to the subpoenaing party. This process. called in camera review, al- lows a judge to examine all the material requested and determine whether it is sufficiently important to the case to justify compelled production. The state outlines will discuss what is required or al- lowed in your state. Does federal or state law apply to my case? A majority of the subpoenas served on reporters arise in state cases, with only eight percent coming in federal cases, according to the Reporters Committee's 1999 subpoena survey. Agents of Dis- corny. Reporters Committee for Freedom of the Press Page EFTA01205050 REPORTER'S PRIVILEGE COMPENDIUM 7TH CIR. State trial courts follow the interpretation of state constitutional. statutory or common law from the state's highest court to address the issue. When applying a First Amendment privilege, state courts may rely on the rulings of the United States Supreme Court as well as the state's highest court. Subpoenas in cases brought in federal courts present more complicated questions. Each state has at least one federal court. When a federal district court is asked to quash a subpoena. it may apply federal law, the law of the state in which the federal court sits, or even the law of another state. For example. if a journalist from one state is subpoenaed to testify in a court in another state. the enforcing court will apply the state's "choice of law' rules to decide which law applies. Federal precedent includes First Amendment or federal com- mon law protection as interpreted by the United States Supreme Court. rulings of the federal circuit court of appeals for the district court's circuit, or earlier decisions by that same district court. There is no federal shield law, although as of May 2008 a bill had passed the House and was moving to the Senate floor. The federal district court will apply the state courts' interpreta- tion of state law in most circumstances. In the absence of precedent from the state's courts, the federal district court will follow prior federal court interpretations of the state's law. In actions involving both federal and state law, courts differ on whether federal or state law will apply. Twelve federal circuits cover the United States. Each circuit has one circuit (appellate) court, and a number of district (trial) courts. The circuit courts must follow precedent established by the U.S. Supreme Court. but are not bound by other circuits' decisions. Are there any limits on subpoenas from federal agents or prosecutors? Ever since 1973. the Attorney General of the United States has followed a set of guidelines limiting the circumstances in which any agents or employees of the Department of Justice, including federal prosecutors and FBI agents. may issue subpoenas to mem- bers of the news media or subpoena journalists' telephone records from third parties. (28 C.F.R. 50.10) Under the guidelines, prosecutors and agents must obtain per- mission from the Attorney General before subpoenaing a member of the news media. Generally. they must exhaust alternative sources for information before doing so. The guidelines encourage negotiation with the news media to avoid unnecessary conflicts. and specify that subpoenas should not be used to obtain "peripher- al. nonessential or speculative" information. In addition, journalists should not be questioned or arrested by Justice employees without the prior approval of the Attorney Gen- eral (unless "exigent circumstances preclude prior approval") and agents are not allowed to seek an arrest warrant against a journalist or present evidence to a grand jury against a journalist without the same approval. Employees who violate these guidelines may receive an admin- istrative reprimand, but violation does not automatically render the subpoena invalid or give a journalist the right to sue the Justice Department. The guidelines do not apply to government agencies that are not part of the federal Department of Justice. Thus agencies like the National Labor Relations Board are not required to obtain the At- torney General's permission before serving a subpoena upon a member of the news media. Do the news media have any protection against search war- rants? Subpoenas are not the only tool used to obtain information from the news media. Sometimes police and prosecutors use search warrants, allowing investigators to enter newsrooms and search for evidence directly rather than merely demanding that journalists release it. The U.S. Supreme Court held that such searches do not violate the First Amendment. Zurcher v. Stanford Daily. 436 U.S. 547 (1978). Congress responded by passing the federal Privacy Protec- tion Act in 1980. (42 U.S.C. 2000aa) In general. the Act prohibits both federal and state officers and employees from searching or seizing journalists' "work product" or "documentary materials" in their possession. The Act provides limited exceptions that allow the government to search for certain types of national security infomtation. child pornography. evidence that the journalists themselves have committed a crime, or materi- als that must be immediately seized to prevent death or serious bodily injury. "Documentary materials" may also be seized if there is reason to believe that they would be destroyed in the time it took to obtain them using a subpoena. or if a court has ordered disclo- sure. the news organization has refused and all other remedies have been exhausted. Even though the Privacy Protection Act applies to state law en- forcement officers as well as federal authorities, many states, in- cluding California. Connecticut. Illinois. Nebraska, New Jersey. Oregon. Texas and Washington. have their own statutes providing similar or even greater protection. (See section IX.A. in the state outlines.) Other states. such as Wisconsin. require that search war- rants for documents be directed only at parties suspected of being "concerned in the commission" of a crime. which generally ex- empts journalists. If law enforcement officers appear with a warrant and threaten to search your newsroom unless you hand over specific materials to them, contact your organization's attorney immediately. Ask the officers to delay the search until you have had an opportunity to confer with your lawyer. If the search proceeds. staff photogra- phers or a camera crew should record it. Although the news organization staff may not impede the search. they are not required to assist with it. But keep in mind that the warrant will probably list specific items to be seized. and you may decide it is preferable to turn over a particular item rather than to allow police to ransack desks and file cabinets or seize comput- ers. After the search is over, immediately consult your attorney about filing a suit in either federal or state court. It is important to move quickly. because you may be able to obtain emergency re- view by a judge in a matter of hours. This could result in your seized materials being taken from the law enforcement officials and kept under seal until the dispute is resolved. Another option allows you to assert your claim in an adminis- trative proceeding. which may eventually lead to sanctions against the official who violated the act. You would not receive damages. however. Your attorney can help you decide which forum will offer the best remedy in your situation. Whichever option you choose, a full hearing will vindicate your rights in nearly every case, and you will be entitled to get your materials back and in some cases. monetary damages including your attorney's fees. Reporters Committee for Freedom of the Press Page EFTA01205051 REPORTER'S PRIVILEGE COMPENDIUM 7TH CIR. The Reporter's Privilege Compendium: A User's Guide This project is the most detailed examination available of the reporter's privilege in every state and federal circuit. It is presented primarily as an Internet document (found at www.rcfp.org/privilege) for greater flexibility in how it can be used. Printouts of individual state and circuit chapters are made available for readers' convenience. Every state and federal section is based on the same standard outline. The outline starts with the basics of the privilege, then the procedure and law for quashing a subpoena. and concludes with appeals and a handful of other issues. There will be some variations on the standard outline from state to state. Some contributors added items within the outline, or omitted subpoints found in the complete outline which were not relevant to that state's law. Each change was made to fit the needs of a particular state's laws and practices. For our many readers who are not lawyers. This project is pri- marily here to allow lawyers to fight subpoenas issued to journal- ists, but it is also designed to help journalists understand the re- porter's privilege. (Journalists should not assume that use of this book will take the place of consulting an attorney before dealing with a subpoena. You should contact a lawyer if you have been served with a subpoena.) Although the guides were written by lawyers. we hope they are useful to and readable by nonlawyers as well. However, some of the elements of legal writing may be un- familiar to lay readers. A quick overview of some of these customs should suffice to help you over any hurdles. Lawyers are trained to give a legal citation for most statements of law. The name of a court case or number of a statute may there- fore be tacked on to the end of a sentence. This may look like a sentence fragment. or may leave you wondering if some infor- mation about that case was omitted. Nothing was left out: inclusion of a legal citation provides a reference to the case or statute sup-porting the statement and provides a shorthand method of identi- fying that authority, should you need to locate it. Legal citation form also indicates where the law can be found in official reporters or other legal digests. Typically. a cite to a court case will be followed by the volume and page numbers of a legal reporter. Most state cases will be found in the state reporter. a larger regional reporter, or both. A case cite reading 123 F.2d 456 means the case could be found in the Federal Reports, second se- ries. volume 123. starting at page 456. In most states, the cites will be to the official reporter of state court decisions or to the West Publishers regional reporter that covers that state. Note that the complete citation for a case is often given only once, and subsequent cites look like this: "Jackson at 321." This means that the author is referring you to page 321 of a case cited earlier that includes the name Jackson. Because this outlines were written for each state, yet searches and comparisons result in vari- ous states and sections being taken out of the sequence in which they were written, it may not always be clear what these second references refer to. Authors may also use the words supra or infra to refer to a discussion of a case appearing earlier or later in the outline, respectively. You may have to work backwards through that state's outline to find the first reference in some cases. We have encouraged the authors to avoid "legalese" to make this guide more accessible to everyone. But many of the issues are necessarily technical and procedural, and removing all the legalese would make the guides less useful to lawyers who are trying to get subpoenas quashed. Updates. This project was first posted to the Web in December 2002. The last major update of all chapters was completed in Sep- tember 2007. As the outlines are updated. the copyright notice on the bottom of the page will reflect the date of the update. All out- lines will not be updated on the same schedule. Reporters Committee for Freedom of Mr Press Page EFTA01205052 REPORTER'S PRIVILEGE COMPENDIUM 7TH CIR. REPORTER'S PRIVILEGE COMPENDIUM 7TH CIR. Prepared by: Kenneth E. Kraus Schopf & Weiss, LLP One South Wacker Drive 28th Floor Chicago, IL 60606-4617 (312) 701-9300 I. Introduction: History & Background 2 II. Authority for and source of the right 2 A. Shield law statute Error! Bookmark not defined. B. State constitutional provision Error! Bookmark not defined. C. Federal constitutional provision Error! Bookmark not defined. D. Other sources Error! Bookmark not defined. III. Scope of protection 2 A. Generally 2 B. Absolute or qualified privilege 2 C. Type of case 2 D. Information and/or identity of source E. Confidential and/or non-confidential information F. Published and/or non-published material 4 G. Reporter's personal observations H. Media as a party I. Defamation actions IV. Who is covered 6 A. Statutory and case law definitions 6 B. Whose privilege is it? 7 3 3 5 5 5 V. Procedures for issuing and contesting subpoenas 7 A. What subpoena server must do 7 B. How to Quash 7 VI. Substantive law on contesting subpoenas 9 A. Burden, standard of proof 9 B. Elements 9 C. Waiver or limits to testimony I I VII. What constitutes compliance 9 12 A. Newspaper articles 12 B. Broadcast materials 12 C. Testimony vs. affidavits 12 D. Non-compliance remedies 12 VIII. Appealing 13 A. Timing 13 B. Procedure 13 IX. Other issues 14 A. Newsroom searches 14 B. Separation orders 14 C. Third-party subpoenas 14 D. The source's rights and interests 15 Reporters Committee for Freedom of Mr Press Page EFTA01205053 REPORTER'S PRIVILEGE COMPENDIUM 7TH CIR. I. Introduction: History & Background Since the 2003 decision in McKevitt v. Pallasch, 339 F.3d 530 (7th Cir. 2003), the reporter's privilege has been limited to cases involving confidential sources, although some district courts have protected non-confidential ma- terial by following a reasonableness test applicable to subpoenas generally. Relying on any case decided before McKevitt is problematic. Exercise caution and ensure the case is still good law. For the most part, federal courts have not adopted any special procedural rules concerning the quashing of a subpoena or the appellate process. II. Authority for and source of the right No reported cases discuss the reporters' privilege prior to Branzburg. III. Scope of protection A. Generally In McKevitt v. Pallasch, 339 F.3d 530 (7th Cir. 2003), the court rejected a reporter's privilege, at least when the source is not confidential. A terrorism defendant in Ireland sought an order under 28 U.S.C. § 1782 compelling production of tape recorded interviews for cross-examination of the chief prosecution witness. 339 F.3d at 531. The witness's identity was known and he did not object to production of the tapes, in the possession of journalists preparing a biography of the witness. Id. at 532. The court reviewed Branzburg and its progeny and rejected a special reporter's privilege. "It seems to us that rather than speaking of privilege, courts should simply make sure that a subpoena duces tecum directed to the media, like any other subpoena duces tecum, is reasonable in the cir- cumstances.... We do not see why there need be special criteria merely because the possessor of the documents or other evidence sought is a journalist." Id. at 533. The court stated that when the source is not confidential, the First Amendment does not apply. Id. 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. And the court held that state-law privileges are not legally applicable in federal-question cases. Id. In 2007, the Seventh Circuit stated explicitly what it stated in so many words in McKevitt: "There isn't even a reporter's privilege in federal cases." United States Dept of Educ. v. Nat'l Collegiate Athletic 481 F.3d 936, 938 (7th Cir. 2007). The court acknowledged that the news media's ability to conduct investigations would be enhanced if they were permitted to conceal the identity of their sources from the government. "But they are not." Id. at 938. When diversity of citizenship is the basis for federal jurisdiction, courts undergo a standard Erie analysis and de- termine whether the application of state law would provide the "rule of decision." Desai v. Hersh, 954 F.2d 1408, 1411 (7th Cir. 9(96. See also Solaia Technology, LLC v. Rockwell Automation, Inc., No. 03 C 6904, 2003 WL 22597611, at *3 III. Nov. 10, 2003). B. Absolute or qualified privilege To the extent that a privilege exists after McKevitt v. Pallasch, 339 F.3d 530 (7th Cir. 2003), it must be considered qualified and courts follow the balancing test set forth in McKevitt. However, the lower courts have continued to consider the interests of the media in deciding whether to quash subpoenas or compel disclosure. See, e.g., Hobley v. Burge, 223 . 499 (E. III. 2004): "[g]iven the im- portant 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. C. Type of case 1. Civil Reponers Committee for Freedom of the Piras Page EFTA01205054 REPORTER'S PRIVILEGE COMPENDIUM 7TH CIR. The halal". III. June 27, 2006); Hare v. Zitek, No. 02 C 3973, 2006 WL 2088427 (III. Ill. Jul . 2006); test announced in McKevitt applies in civil cases. See Bond v. Utreras, No. 04 C 2617, 2006 WL 1806387 Patterson v. Burge, No. 03 C 4433, 2005 WL 43240 (E. III. Jan. 6, 2005); Hobley v. Burge, 223 . 499 . III. 2004); Solaia Technology, LLC v. Rockwell Automation, Inc., No. 03 C 6904, 2003 WL 22597611 ( . III. Nov. 10, 2003). 2. Criminal The balancing test announced in McKevitt applies in criminal cases. See United States v. Hale, No. 03 CR II, 2004 WL 1123796 (E. Ind. April 14, 2004). See also United States v. Lloyd, 71 F.3d 1256, 1262, 1269 (7th Cir. 1995) (upholding trial court's decision to quash defendant's trial subpoena of a Chicago Tribune reporter); United States v. Bingham, 765 F. Supp. 954, 956 MI. III. 1991) (upholding NBC's motion to quash subpoena for video outtakes but orderkgNBC to produce transcripts of the outtakes); United States v. Lopez, No. 86 CR 513, 1987 WL 26051, at *1 (M. III. Nov. 30, 1987) (applying qualified reporters' privilege in criminal case and granting NBC's motion to quash). In Bingham, the defendant sought from NBC outtakes from a videotaped interview of a key government witness. While NBC agreed to produce those portions of the tape that were previously broadcast, it refused to produce the outtakes. In balancing the parties' interests, the court considered the defendant's important Fifth Amendment right to a fair trial and his Sixth Amendment rights to compulsory process and effective confrontation of adverse wit- nesses. Bingham, 765 F. Supp. at 958. The court adopted a balancing approach used by other circuits in criminal cases. The court said that "[t]he rights of the party seeking disclosure override the reporters' First Amendment interests only upon a clear and specific showing that the information is highly relevant and material, necessary to the maintenance of a claim, and not obtainable from other available sources." The court held that the information was "highly relevant" and even "critical to the maintenance of the defense." Id. at 958-959. One issue not ad- dressed by the court was whether either party had asked the court to make a transcript of the tapes. It appears the court turned the transcripts over to the defense sua sponte in an attempt to reach a middle ground. This should provide a note of caution to reporters producing videotapes for in camera inspection. 3. Grand jury No federal cases in the Seventh Circuit discussed whether the reporters' privilege applies to grand jury subpoenas. D. Information and/or identity of source In Solaia Technology, LLC v. Rockwell Automation, Inc., No. 03 C 6904, 2003 WL 22597611 III. Nov. 10, 2003), the court tentatively held that a subpoena served in an antitrust case should be quashed to the extent it sought the identity of the author of an anonymous letter published in a manufacturing industry magazine. Id. at *2. The court reserved ruling pending a related decision in another federal district court that may have resulted in the application of the Illinois statutory reporter's privilege. Id. at *3. aFcKevitt rulinaalso have protected the source of the information. Neal v. City of Harvey, Illinois, 173 . 231, 234 (M. III. 1997) (quashing subpoena seeking undisclosed sources partiallySecause "names of sources are covered by the privilege"); Warnell v. Ford Motor Co., 183 . 624, 626 (M. III 1998) (ordering that subpoenaed videotape be produced but that cameraman's voice be redacted in the event that news-gatherer argued cameraman was the source); Gulliver's Periodicals Ltd. v. Chas. Levy Circulating Co., 455 F. Supp. 1197, 1204 Ill. 1978) (quashing subpoena because subpoena sought identity of sources who had given information upon promise that their identities would remain secret). E. Confidential and/or non-confidential information McKevitt v. Pallasch, 339 F.3d 530 (7th Cir. 2003), the reporter's privilege was limited to cases involving confi- dential sources, although some district courts have protected non-confidential material by following a reasona- bleness 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. Reporters Committee for Freedom of Mr Press Page EFTA01205055 REPORTER'S PRIVILEGE COMPENDIUM TM CIR. Pre-McKevitt rulings have emphasized the importance of protecting confidential sources. See Neal v. City of Harvey, Illinois, 173 . 231, 233 (■. III. 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, however, has receives less protection under a balancing test, lower courts continue to reco nize the media's need for freedom from the harassment of subpoenas. In Hobley v. Burge, 223 499 . III. 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 Injothing in McKevitt suggests that a reporter's notes are discoverable in civil litigation simply because the reporter interviewed a party to that litiga- tion." Id. The magistrate stated that research for news articles should be treated like proprietary business in- formation 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 (E. Ill. Jan. 6, 2005), the court quashed the civil rights defendants' subpoena for videotape outtakes reflecting statements by the plaintiff because the defend- ants had not shown more than mere relevance. Id. at *3. The court held that the press would become "inden- tured 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 (E. Ill. June 27, 2006). A federal magistrate held that civil rights defendants could not force a reporter to disclose inter- view 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 inter- views 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 una- vailable to them. Id. at *6. In a later ruling on a motion for reconsideration, the magistrate held that the report- er'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 III. August 23, 2006). In a like manner, in Hare v. Zitek, No. 02 C 3973, 2006 WL 2088427 111. July 24, 2006), a federal magis- trate 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 Warne,' v. Ford Motor Co., 183 . 624, 625 ( . III 1998) (refusing to quash subpoena for videotapes, but conducting balancing test and considering non-confidential nature of infor- mation); United States v. Bingham, 765 F. Supp. 954, 956 (E. III. 1991) (upholding NBC's motion to quash subpoena for video outtakes but ordering NBC to produce transcripts of non-confidential outtakes). F. Published and/or non-published material Information that has not been published is afforded more protection than information that has been published. In Bond v. Utreras, No. 04 C 2617, 2006 WL 1806387 (E. III. 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 Reporters Committee for Freedom of the It Page EFTA01205056 REPORTER'S PRIVILEGE COMPENDIUM 7TH CIR. about interviews of residents of a public housing project he was reporting on. Id. at *6 - *7. However, the mag- istrate 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 rel- evant to the case and that they don't have the evidence or is it otherwise unavailable to them. Id. at *6. In a later ruling on a motion for reconsideration, the magistrate held that the reporter's deep involvemen