North Carolina
Reporter's Privilege Compendium
Marcus W. Trathen
Amanda M. Whorton
Brooks, Pierce, McLendon, Humphrey & Leonard, L.L.P.
Post Office Box 1800
Suite 1700, Wells Fargo Capitol Center
150 Fayetteville Street (zip 27601)
Raleigh, North Carolina 27602
(919) 839-0300 (telephone)
(919) 839-0304 (fax)
Special thanks to our colleagues Mark Prak and John Bussian for their review of this manuscript
CompareI. Introduction: History & Background
North Carolina's statutory "reporter's privilege" or "shield law" became effective on October 1, 1999. This law was a reaction to a decision of the North Carolina Court of Appeals (later affirmed by the North Carolina Supreme Court) that held that reporters do not enjoy a privilege with respect to non-confidential information obtained from non-confidential sources in criminal cases. The court's surprising decision was contrary to some 14 years of consistent lower court decisions that had recognized a reporter's privilege under the federal and state constitutions in civil and criminal proceedings.
The North Carolina shield law is among the two strongest laws of its kind in the country—only Nevada’s unqualified, “absolute” reporter’s privilege is stronger. The shield law enacted in reaction to this adverse decision is quite expansive in the protection granted to journalists. It applies to virtually everyone connected with the publication or distribution of information via any news medium; it protects confidential as well as non-confidential information; it applies to judicial and quasi-judicial proceedings; and it can only be overcome by a specific showing of need by the party seeking the information.
While the experience of North Carolina's trial courts in interpreting this statute has been limited, the law seems to have been successful in clarifying the circumstances under which reporters may be compelled to disclose information obtained in the course of their newsgathering activities. Thus far, trial courts have had little difficulty in following the requirements of the statute, and journalists have been generally successful in protecting the fruits of their newsgathering labor.
II. Authority for and source of the right
CompareA. Shield law statute
North Carolina's "reporter's privilege" or "shield law" is codified at N.C. Gen. Stat. § 8-53.11. This statute provides as follows:
Persons, companies, or other entities engaged in gathering or dissemination of news.
(a) Definitions. - The following definitions apply in this section:
(1) Journalist. - Any person, company, or entity, or the employees, independent contractors, or agents of that person, company, or entity, engaged in the business of gathering, compiling, writing, editing, photographing, recording, or processing information for dissemination via any news medium.
(2) Legal proceeding. - Any grand jury proceeding or grand jury investigation; any criminal prosecution, civil suit, or related proceeding in any court; and any judicial or quasi-judicial proceeding before any administrative, legislative, or regulatory board, agency, or tribunal.
(3) News medium. - Any entity regularly engaged in the business of publication or distribution of news via print, broadcast, or other electronic means accessible to the general public.
(b) A journalist has a qualified privilege against disclosure in any legal proceeding of any confidential or non-confidential information, document, or item obtained or prepared while acting as a journalist.
(c) In order to overcome the qualified privilege provided by subsection (b) of this section, any person seeking to compel a journalist to testify or produce information must establish by the greater weight of the evidence that the testimony or production sought:
(1) Is relevant and material to the proper administration of the legal proceeding for which the testimony or production is sought;
(2) Cannot be obtained from alternate sources; and
(3) Is essential to the maintenance of a claim or defense of the person on whose behalf the testimony or production is sought.
Any order to compel any testimony or production as to which the qualified privilege has been asserted shall be issued only after notice to the journalist and a hearing and shall include clear and specific findings as to the showing made by the person seeking the testimony or production.
(d) Notwithstanding subsections (b) and (c) of this section, a journalist has no privilege against disclosure of any information, document, or item obtained as the result of the journalist's eyewitness observations of criminal or tortious conduct, including any physical evidence or visual or audio recording of the observed conduct.
The shield law became effective October 1, 1999, and applies only to information or documents prepared while acting as a journalist on or after that date. See An Act to Promote the Free Flow of Information to the People of North Carolina by Codifying the Journalists' Testimonial Privilege, ch. 267, 1999 N.C. Sess. Laws 359, s. 2. Although it may be unlikely that information gathered before October 1, 1999 would be the subject of a subpoena, it is important to remember that the statutory privilege would not apply to such information, and any motion to quash a subpoena issued for such information would have to be argued on the basis of the common law privilege arising from the federal or state constitutions. Similarly, should a judge determine that the shield law does not apply to any other particular situation, a journalist could still assert a constitutional privilege.
In summary, the shield law grants journalists a broad but qualified privilege against disclosure of newsgathering information. The protection extends to virtually everyone connected with the publication or distribution of news information, including, but not limited to, reporters, photographers, stringers, and freelance reporters. All newsgathering activity is protected, so long as the activity is related to the business of publication or distribution of news via print, broadcast, or other electronic means. In addition, the statute protects all newsgathering information, regardless of whether the information is confidential or non-confidential. Finally, the protection extends to all legal proceedings, including criminal, civil, grand jury and quasi-judicial (i.e., administrative) proceedings.
To overcome the privilege, the party seeking the information must show: (1) that it is relevant and material to the proper administration of the legal proceeding; (2) that it cannot be obtained from alternative sources; and (3) that it is essential to the maintenance of a claim or defense. An order compelling the production of newsgathering information can only be made after notice and a hearing and upon "clear and specific" findings as to the showing made by the person seeking the information. However, no privilege exists for information or documents that result from a journalist's eyewitness observations of criminal or tortious conduct, including any recordings of the observed conduct.
As noted above, the North Carolina shield law statute was introduced and enacted in response to a decision of the North Carolina Court of Appeals refusing to recognize the reporter's privilege with respect to non-confidential information obtained from non-confidential sources in a criminal case. In re Owens, 128 N.C. App. 577, 496 S.E.2d 592, 26 Media L. Rep. 1953 (1998). In that case, television reporter Sarah Owens had taped an interview with the attorney of a murder suspect, and the prosecutor in the case issued a subpoena demanding that she testify about the tape. She appeared at a hearing, but refused to testify, claiming that her testimony was privileged. The trial court judge held the reporter in contempt of court and sentenced her to 30 days in jail, which was later reduced to 2 hours. The reporter appealed the contempt order to the Court of Appeals, which issued a decision on February 17, 1998, affirming the trial court's decision, albeit on the narrow ground that in a criminal case a reporter enjoys no privilege for non-confidential information obtained from non-confidential sources.
A few days after the Court of Appeals decision in Owens, a reporter for the Raleigh News & Observer, Andy Curliss, received a subpoena in another capital murder case. The prosecution sought Mr. Curliss' notes from a jailhouse interview with the defendant, Derrick Allen. The trial court undertook an in camera review of the notes in issue and, without clearly ruling whether it recognized a privilege at all, ruled that the reporter must turn over his notes. The court granted the newspaper's motion for a stay of this ruling and, acting under a provision allowing matters ancillary to capital murder cases to go directly to the North Carolina Supreme Court, the newspaper petitioned the Supreme Court for certiorari. The court granted certiorari, and oral argument was heard in the end of May 1998 after an expedited briefing schedule.
The North Carolina Supreme Court also granted review in Owens and heard oral argument in September 1998. After months went by without a decision from the Supreme Court in either Owens or Curliss, the North Carolina Press Association and the North Carolina Association of Broadcasters worked with key legislators to craft legislation to overrule the Owens decision and codify the journalist's testimonial privilege. The result of this effort was the enactment of the shield law, which was ratified by the legislature on June 30, 1999, and signed into law by the Governor on July 9, 1999.
Immediately after enactment of the shield law, on July 23, 1999, the Supreme Court issued a one sentence decision affirming Owens but noting the enactment of the shield law. See In re Owens, 350 N.C. 656, 517 S.E.2d 605, 27 Media L. Rep. 2340 (July 23, 1999) (the lower's court's decision in Owens was affirmed, despite the passage of the shield law, because the reporter's material in Owens was gathered before the shield law's October 1, 1999 effective date). On the same day, the Supreme Court entered an order in Curliss holding that certiorari had been improvidently granted, therefore sending the matter back to the trial court. See In re Curliss, 350 N.C. 655, 517 S.E.2d 381 (1999).
No formal legislative history exists to provide additional context and explanation of the shield law. However, some guidance concerning the legislature's intent may be obtained by comparing the Bill that was ultimately enacted, Senate Bill 1009, with the companion House Bill 1200 that was passed by the House but ultimately rejected in favor of the Senate version. There were three principal substantive differences between these Bills:
(1) In the House Bill, the definition of "journalist" lacked the phrase: "or the employees, independent contractors or agents of that person, company or entity;"
(2) The House Bill lacked a provision specifying that a journalist has no privilege against disclosure of the journalist's eyewitness observations of criminal or tortious conduct; and
(3) The House Bill had a provision allowing the award of reasonable attorneys' fees and expenses to the prevailing party.
There have been no substantive amendments to the shield law statute since it was enacted in 1999, although the statute was initially codified as G.S. § 8-53.9 and subsequently was recodified as G.S. § 8-53.11.
CompareB. State constitutional provision
The North Carolina Constitution contains no explicit shield law provision. However, Article I, Section 14 of the State Constitution contains protections of freedom of speech and freedom of the press:
Freedom of speech and press. Freedom of speech and of the press are two of the great bulwarks of liberty and therefore shall never be restrained, but every person shall be held responsible for their abuse.
Various North Carolina trial courts have recognized that a journalist's testimonial privilege is based, in part, on Article I, Section 14 of the North Carolina Constitution. See Higgins v. Young, 29 Media L. Rep. 2528 (N.C. Superior Ct. 2001) (stating that N.C. Gen. Stat. § 8-53.11 codified the common law reporter's privilege under, inter alia, Article I, Section 14 of the North Carolina Constitution; quashing defendant's subpoena of newspaper reporter in civil case seeking testimony concerning three published articles); State v. McLeod Oil Co., 34 Media L. Rep. 1703 (N.C. Superior Ct. 2006) (quashing subpoena seeking copy of interview broadcast on radio); State v. Peterson, 31 Media L. Rep. 2501 (N.C. Superior Ct. 2003) (quashing subpoena seeking notes or memoranda that would reflect contact between law enforcement officials and members of the news media); State v. McKillop, 24 Media L. Rep. 1638 (N.C. Dist. Ct. 1995) (quashing subpoena by prosecutor in criminal case seeking testimony of newspaper reporter concerning statements made by defendant accused of operating a sexually oriented business within 1,000 feet of a residence); State v. Wallace, 23 Media L. Rep. 1473 (N.C. Superior Ct. 1995) (protecting journalist's confidential police sources from disclosure in change of venue hearing in criminal case where defendant was charged with the murder of ten women over a two-year period); State v. Demery, 23 Media L. Rep. 1958 (N.C. Superior Ct. 1995) (quashing defense subpoena in criminal case seeking reporter's testimony concerning telephone interview with defendant accused of murdering James Jordan, Michael Jordan's father); State v. Smith, 13 Media L. Rep. 1942 (N.C. Superior Ct. 1987) (quashing defendant's subpoena in criminal case seeking testimony of reporter concerning his investigation concerning theft of narcotics from a State Bureau of Investigation laboratory); Locklear v. Waccamaw Siouan Dev. Ass'n, 12 Media L. Rep 2391 (N.C. Superior Ct. 1986) (quashing plaintiff's subpoena in civil case seeking newspaper reporter's testimony in order to impeach testimony given by the chairman of defendant's board of directors in breach of contract claim); Johnson v. Skurow, 10 Media L. Rep. 2463 (N.C. Superior Ct. 1984) (quashing plaintiff's subpoena in civil case seeking testimony of newspaper reporter concerning his investigation of the incident giving rise to the lawsuit and to verify the accuracy of certain statements by several witnesses which were printed in a published news article); State v. Hagaman, 9 Media L. Rep. 2525 (N.C. Superior Ct. 1983) (quashing defendant's subpoena in criminal case seeking testimony of newspaper reporter concerning confidential source in murder case); Chappell v. Brunswick Bd. of Educ., 9 Media L. Rep. 1753 (N.C. Superior Ct. 1983) (quashing plaintiff's subpoena in civil case seeking a newspaper reporter's testimony and notes about her conversations with school board members concerning a teacher's firing by the board).
No state appellate court has explicitly ruled on whether or not the state constitution establishes a reporter's privilege. The Supreme Court, however, has affirmed without explanation or comment a Court of Appeals decision implicitly refusing to recognize a reporter's testimonial privilege based on the state constitution with respect to non-confidential information obtained from a non-confidential source in a criminal proceeding. In re Owens, 128 N.C. App. 577, 496 S.E.2d 592, 26 Media L. Rep. 1953 (1998), aff'd, 350 N.C. 656, 517 S.E.2d 605, 27 Media L. Rep. 2340 (1999). In Owens, the Court of Appeals rejected the reporter's argument that a trial court contempt order was invalid under the North Carolina Constitution, but, in doing so, the Court did not analyze the state constitution and did not explicitly hold that no privilege exists under the state constitution. As a result, reporters may still assert protection under the state constitution in instances where the shield law does not apply.
CompareC. Federal constitutional provision
The North Carolina Court of Appeals has considered, and rejected in part, a reporter's privilege under the federal constitution, concluding that "the Supreme Court in Branzburg expressly recognized the state's compelling interest in pursuing criminal investigations." See In re Owens, 128 N.C. App. 577, 496 S.E.2d 592, 26 Media L. Rep. 1953 (1998), aff'd, 350 N.C. 656, 517 S.E.2d 605, 27 Media L. Rep. 2340 (1999). The court in Owens limited its holding to non-confidential information obtained from a non-confidential source in a criminal proceeding and it is possible to read the court's decision as simply a determination that the state's interest under the facts of this case outweighed the reporter's interest in non-disclosure. As a result, at least in criminal cases involving the disclosure of non-confidential information, it is uncertain whether North Carolina courts will continue to recognize a reporter's privilege based on the federal constitution.
The result in Owens has been effectively overruled by the enactment of the shield law. For example, in State v. Wiggins, 29 Media L. Rep. 1597 (N.C. Superior Ct. 2001), a Mecklenburg County Superior Court judge found that, despite the Supreme Court's ruling in Owens, the shield law does indeed protect non-confidential information obtained from non-confidential sources, even in criminal cases.
Prior to enactment of the shield law and the Owens decision, the North Carolina trial courts had on a consistent basis recognized the reporter's privilege based on the United States Supreme Court decision in Branzburg v. Hayes, 408 U.S. 665 (1972) and the First Amendment. One of the first of these cases was State v. Rogers, 9 Media L. Rep. 1254 (N.C. Superior Ct. 1983). In that case, a Wake County Superior court judge quashed a subpoena issued to a reporter for the Raleigh News & Observer in a criminal case, citing Branzburg to support the decision. The court recognized that journalists have a qualified First Amendment privilege to refuse to testify or disclose unpublished material, and that testimony or production of materials can be required only when the requesting party demonstrates: (1) that the information to be obtained is material and relevant; (2) that there is an important state interest in compelling the journalist's testimony; and (3) that the information sought is not available from other sources. Id. at 1255. This three part test was later codified in the shield law.
Subsequent cases in the trial courts affirmed this privilege based on the First Amendment (in addition to Article I, Section 14 of the North Carolina Constitution). See, e.g., Higgins v. Young, 29 Media L. Rep. 2528 (N.C. Superior Ct. 2001) (stating that N.C. Gen. Stat. § 8-53.11 codified the common law reporter's privilege under, inter alia, the First Amendment of the United States Constitution and quashing defendant's subpoena of newspaper reporter in civil case seeking testimony concerning three published articles); In re Ragavage, 43 Media L. Rep. 1057 (N.C. Superior Ct. 2014) (quashing subpoena seeking information about a news reporter’s interview and discussing policy reasons for the shield law); State v. Spivey, 35 Media L. Rep. 1137 (N.C. Superior Ct. 2006) (quashing subpoena in a criminal case seeking whether defendant’s admissions included in a news article were accurate); State v. Key, 35 Media L. Rep. 1136 (N.C. District Ct. 2006) (quashing defense subpoena in criminal case seeking testimony from news reporter); State v. McLeod Oil Co., 34 Media L. Rep. 1703 (N.C. Superior Ct. 2006) (quashing subpoena seeking copy of interview broadcast on radio); State v. Peterson, 31 Media L. Rep. 2501 (N.C. Superior Ct. 2003) (quashing subpoena seeking notes or memoranda that would reflect contact between law enforcement officials and members of the news media); Shinn v. Price, 27 Media L. Rep. 2341 (N.C. Superior Ct. 1999) (quashing plaintiff's subpoena in civil case seeking testimony from newspaper reporter concerning confidential and non-confidential information and sources in connection with the reporter's investigation into defendant's allegations that the plaintiff sexually assaulted her); State v. McKillop, 24 Media L. Rep. 1638 (N.C. District Ct. 1995) (quashing subpoena by prosecutor in criminal case seeking testimony of newspaper reporter concerning statements made by defendant accused of operating a sexually oriented business within 1,000 feet of a residence); State v. Wallace, 23 Media L. Rep. 1473 (N.C. Superior Ct. 1995) (protecting journalist's confidential police sources from disclosure in change of venue hearing in criminal case where defendant was charged with the murder of ten women over a two-year period); State v. Demery, 23 Media L. Rep. 1958 (N.C. Superior Ct. 1995) (quashing defense subpoena in criminal case seeking reporter's testimony concerning telephone interview with defendant accused of murdering James Jordan, Michael Jordan's father); State v. Smith, 13 Media L. Rep. 1942 (N.C. Superior Ct. 1987) (quashing defendant's subpoena in criminal case seeking testimony of reporter concerning his investigation concerning theft of narcotics from a State Bureau of Investigation laboratory); Locklear v. Waccamaw Siouan Dev. Ass'n, 12 Media L. Rep 2391 (N.C. Superior Ct. 1986) (quashing plaintiff's subpoena in civil case seeking newspaper reporter's testimony in order to impeach testimony given by the chairman of defendant's board of directors in breach of contract claim); Johnson v. Skurow 10 Media L. Rep. 2463 (N.C. Superior Ct. 1984) (quashing plaintiff's subpoena in civil case seeking testimony of newspaper reporter concerning his investigation of the incident giving rise to the lawsuit and to verify the accuracy of certain statements by several witnesses which were printed in a published news article); State v. Hagaman, 9 Media L. Rep. 2525 (N.C. Superior Ct. 1983) (quashing defendant's subpoena in criminal case seeking testimony of newspaper reporter concerning confidential source in murder case); Chappell v. Brunswick Bd. of Educ., 9 Media L. Rep. 1753 (N.C. Superior Ct. 1983) (quashing plaintiff's subpoena in civil case seeking a newspaper reporter's testimony and notes about her conversations with school board members concerning a teacher's firing by the board).
Several federal court cases arising in North Carolina have also recognized a reporter's privilege based on the federal constitution. The first such case was Miller v. Mecklenburg County, 602 F. Supp. 675 (W.D.N.C. 1985) and 606 F. Supp. 488 (W.D.N.C. 1985), aff'd, 813 F.2d 402 (4th Cir. 1986) (not addressing the reporter's privilege issue), cert. denied, 479 U.S. 1100 (1987). The case arose out of a civil suit against various police officials alleging that the defendants had caused the death of plaintiff's father by administering a "choke hold" while decedent was in police custody. Tex O'Neill, a newspaper reporter for The Charlotte Observer, investigated the allegations and published a story almost two years after the death revealing that while he was investigating the story he met someone who provided him information on a confidential basis concerning the alleged incident in addition to other non-confidential information. In the first decision in this case, the court recognized a qualified privilege against disclosure based on the Branzburg case both as to confidential source and non-confidential information, but concluded that plaintiff had met her burden to overcome the privilege with respect to the non-confidential identity of a potential witness to the alleged "choke hold" obtained from the confidential source by showing that she had exhausted all potential alternative sources of information. In the second decision after additional discovery based on the non-confidential information did not reveal helpful information, the court, acting with great "reluctance," required the reporter to reveal the identity of the confidential source but issued a protective order prohibiting the release of the confidential information to anyone but the attorneys involved in the case. See also United States v. Sterling, 724 F.3d 482 (4th Cir. 2013) (following Branzburg and holding that “[t]here is no First Amendment testimonial privilege, absolute or qualified, that protects a reporter from being compelled to testify . . . in criminal proceedings about criminal conduct that the reporter personally witnessed or participated in, absent a showing of bad faith, harassment, or other such non-legitimate motive, even though the reporter promised confidentiality to his [or her] source.”); Ashcraft v. Conoco, Inc., 218 F.3d 282, 28 Media L. Rep. 2103 (4th Cir. 2000) (district court recognized qualified privilege against disclosure of the source of information relating to $36 million court settlement ordered to be kept confidential, but, after investigation by the court and the parties, concluded that the reporter was the only means of identifying the source of the information; contempt order reversed by Fourth Circuit); Food Lion, Inc. v. Capital Cities/ABC, Inc., 951 F. Supp 1211 (M.D.N.C. 1996) (case arising out of ABC network's Prime Time Live program in which journalists used hidden cameras and "undercover" employees to suggest that Food Lion's corporate goals of promoting efficiency and reducing waste result in the sale of unsanitary food to consumers; the federal district court recognized the reporter's testimonial privilege, and applied the familiar three-part test, but ruled that the moving party had met its burden and allowed the journalists' materials concerning two unrelated hidden camera investigations to be subpoenaed); Penland v. Long, 922 F. Supp. 1080 (W.D.N.C. 1995), rev’d on other grounds, Jackson v. Long, 102 F.3d 722 (4th Cir. 1996) (quashing subpoenas issued by plaintiffs in civil case to newspaper and television reporters seeking testimony concerning unpublished conversations with the defendant sheriff in action arising out of the termination of the plaintiff deputy sheriffs by the defendant).
CompareD. Other sources
Prior to the shield law, the journalist's testimonial privilege in North Carolina had been based on the federal and state constitutions. The privilege has not been based on other sources such as court rules, state bar guidelines, or administrative procedures.
CompareIII. Scope of protection
CompareA. Generally
In general, the shield law in North Carolina is very strong. The statute extends to virtually everyone connected with the publication or distribution of news information, including, but not limited to, reporters, photographers, stringers, and freelance reporters; it extends to all newsgathering activity, so long as the activity is related to the business of publication or distribution of news via print, broadcast, or other electronic means; it protects all newsgathering information, regardless of whether the information is confidential or non-confidential; and it extends to all legal proceedings, including criminal, civil, grand jury and quasi-judicial (i.e., administrative) proceedings. Nonetheless, despite the clarity and strength of the statute, the application of the statute to a specific set of facts is always subject to the vagaries of the judicial process and the temperament of specific judges.
CompareB. Absolute or qualified privilege
In any legal or quasi-judicial proceeding in North Carolina, a journalist has a qualified privilege against disclosure of any confidential or non-confidential information, document or item obtained or prepared while working as a journalist. N.C. Gen. Stat. § 8-53.11(b). This privilege is not absolute, but to overcome the privilege, the party seeking the information must show (1) that it is relevant and material to the proper administration of the legal proceeding, (2) that it cannot be obtained from alternative sources, and (3) that it is essential to the maintenance of a claim or defense. N.C. Gen. Stat. § 8-53.11(c). However, no privilege exists for information or documents which result from a journalist's eyewitness observations of criminal or tortious conduct, including any recordings of the observed conduct. N.C. Gen. Stat. § 8-53.11(d).
CompareC. Type of case
Compare1. Civil
The North Carolina shield law statute draws no distinction between civil and criminal cases, specifying that the privilege applies in all legal and quasi-judicial proceedings in the state. N.C. Gen. Stat. § 8-53.11(a)(2).
Compare2. Criminal
The North Carolina shield law statute draws no distinction between civil and criminal cases, specifying that the privilege applies in all legal and quasi-judicial proceedings in the state. N.C. Gen. Stat. § 8-53.11(a)(2). In In re Owens, 128 N.C. App. 577, 496 S.E.2d 592, 26 Media L. Rep. 1953 (1998), aff'd, 350 N.C. 656, 517 S.E.2d 605, 27 Media L. Rep. 2340 (1999), the Court of Appeals refused to recognize a reporter's privilege in the case of non-confidential information obtained from non-confidential sources in a criminal case, and that ruling was affirmed by the state supreme court. This ruling, however, was explicitly overruled by the enactment of the shield law.
Compare3. Grand jury
North Carolina's shield law specifically applies to "any grand jury proceeding or grand jury investigation," and no distinction is made between grand jury investigations, criminal trials, and civil actions. N.C. Gen. Stat. § 8-53.11(a)(2).
CompareD. Information and/or identity of source
While the shield law does not specifically discuss protecting the identity of sources or material that implicitly identifies sources, it protects "any confidential or non-confidential information . . . obtained . . . while acting as a journalist." N.C. Gen. Stat. § 8-53.11(b). This "information" includes the identity of a reporter's sources, and North Carolina trial courts have consistently recognized a reporter's privilege to protect the identity of sources. See, e.g., State v. Peterson, 31 Media L. Rep. 2501 (N.C. Superior Ct. 2003) (quashing subpoena seeking notes or memoranda that would reflect contact between law enforcement officials and members of the news media); State v. Wallace, 23 Media L. Rep. 1473 (N.C. Superior Ct. 1995) (protecting journalist's confidential police sources); State v. Hagaman, 9 Media L. Rep. 2525 (N.C. Superior Ct. 1983) (quashing defendant's subpoena demanding that reporter testify about his confidential sources).
CompareE. Confidential and/or nonconfidential information
The North Carolina shield law protects journalists against the disclosure "of any confidential or non-confidential information, document, or item obtained or prepared while acting as a journalist." N.C. Gen. Stat. § 8-53.11(b). Confidential information is any information obtained by a reporter with a promise that the source will not be disclosed. See State v. Wallace, 23 Media L. Rep. 1473 (N.C. Superior Ct. 1995); State v. Hagaman, 9 Media L. Rep. 2525 (N.C. Superior Ct. 1983). Non-confidential information is information obtained by any other means.
The North Carolina Supreme Court has affirmed a Court of Appeals decision that there is no federal constitutional privilege protecting reporters from providing non-confidential information obtained from non-confidential sources in criminal cases. In re Owens, 128 N.C. App. 577, 496 S.E.2d 592, 26 Media L. Rep. 1953 (1998), aff'd, 350 N.C. 656, 517 S.E.2d 605, 27 Media L. Rep. 2340 (1999). While the Owens decision came after the shield law had been enacted, the reporter's material was gathered before the shield law's October 1, 1999 effective date and, therefore, was not applicable. In State v. Wiggins, 29 Media L. Rep. 1597 (N.C. Superior Ct. 2001), a Mecklenburg County Superior Court judge found that, despite the North Carolina Supreme Court's ruling in Owens, the shield law does indeed protect non-confidential information obtained from non-confidential sources, even in criminal cases. As a result, only in a case where the shield law does not apply, would the Owens distinction between confidential information and confidential sources and non-confidential information and non-confidential sources in criminal cases matter.
CompareF. Published and/or non-published material
The shield law does not distinguish between material that has been published and material that has not, and the privilege extends to "any confidential or non-confidential information, document, or item obtained or prepared while acting as a journalist." N.C. Gen. Stat. § 8-53.11(b). A North Carolina trial court has quashed a subpoena in a civil matter seeking a copy of an interview broadcast over the radio, where the party who issued the subpoena could not establish that it had exhausted alternate sources for the information contained in the interview or that the information sought was essential to its case. State v. McLeod Oil Co., 34 Media L. Rep. 1703 (N.C. Superior Ct. 2006).
CompareG. Reporter's personal observations
Pursuant to the shield law, the qualified testimonial privilege does not apply to a reporter's eyewitness observation of criminal or tortious conduct. N.C. Gen. Stat. § 8-53.11(d).
If a reporter is on location and records a crime as it happens, there is no privilege against disclosure of any information, including audio or visual recordings resulting from the reporter's eyewitness observation of the crime. See United States v. Sterling, 724 F.3d 482 (4th Cir. 2013) (following Branzburg and holding that “[t]here is no First Amendment testimonial privilege, absolute or qualified, that protects a reporter from being compelled to testify . . . in criminal proceedings about criminal conduct that the reporter personally witnessed or participated in, absent a showing of bad faith, harassment, or other such non-legitimate motive, even though the reporter promised confidentiality to his [or her] source”). However, if the reporter arrives late and merely photographs, for example, the crime scene or accident site, the privilege should apply, because the reporter observed and recorded the result of the crime or accident and not the event itself.
CompareH. Media as a party
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).
CompareI. Defamation actions
There are no North Carolina cases applying a defamation (or libel) "exception" to the reporter's privilege. The protection of the shield law is broad and covers all legal proceedings, even where the media is a defendant in a defamation action. 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. See N.C. Gen. Stat. § 8-53.11(b). Moreover, the privilege does not apply to a journalist's "eyewitness observations of . . . tortious conduct.” N.C. Gen. Stat. § 8-53.11(d).
CompareIV. Who is covered
CompareA. Statutory and case law definitions
Compare1. Traditional news gatherers
Comparea. Reporter
The North Carolina shield law uses the term "journalist" rather than "reporter," but it offers a broad definition, calling any person who is engaged in the business of gathering, compiling, writing, editing, photographing, recording, or processing information for dissemination via any news medium a "journalist." N.C. Gen. Stat. § 8-53.11(a)(1). Any company that is engaged in the business of news gathering, as well as the employees, independent contractors, and agents of that company, is also a "journalist" under the shield law. Id.; see also State v. Fitzgerald, 39 Media L. Rep. 2251 (N.C. Superior Ct. 2011) (holding that a documentary series that was broadcast on A&E was a “journalist” under the statute because its field producers were “engaged in the business of gathering, compiling, writing, editing, photographing, recording or processing information for dissemination via a news medium”).
Compareb. Editor
Editors fall within the definition of "journalist" under the law, and may also claim a "journalist's" privilege. N.C. Gen. Stat. § 8-53.11(a)(1).
Comparec. News
Under the shield law, news is any information gathered, compiled, written, edited, photographed, recorded, or processed for dissemination via any news medium. N.C. Gen. Stat. § 8-53.11(a)(1).
Compared. Photo journalist
Any person who photographs or records information for dissemination via any news medium falls within the definition of "journalist" under the law. Therefore, photojournalists may claim a "journalist's" privilege. N.C. Gen. Stat. § 8-53.11(a)(1).
Comparee. News organization/medium
Any business entity that is regularly engaged in the business of publication or distribution of news via print, broadcast, or other electronic means accessible to the general public is a "news medium" under the shield law. N.C. Gen. Stat. § 8-53.11(a)(3).
Compare2. Others, including non-traditional news gatherers
Although case law in North Carolina has principally dealt with traditional journalists, the statute's broad definitions of "journalist" and "news medium" are meant to be inclusive of all individuals and media involved in the distribution of news. Any person who is engaged in the business of gathering, compiling, writing, editing, photographing, recording, or processing information for dissemination via any news medium is considered a journalist under the shield law. N.C. Gen. Stat. § 8-53.11(a)(1). Any company or entity that is engaged in the business of news gathering, as well as the employees, independent contractors, and agents of that company or entity, is also a "journalist" under the shield law. Id. The agents, independent contractors, or employees of a person who is a journalist may also claim the protection of the shield law. Id.
CompareB. Whose privilege is it?
The privilege belongs to the reporter and not the source of the information. N.C. Gen. Stat. § 8-53.11(b). See also State v. Demery, 23 Media L. Rep. 1958 (N.C. Superior Ct. 1995) (murder case involving the death of Michael Jordan's father). In Demery, a reporter used an interview with the criminal defendant as the basis for an article. Although the reporter voluntarily provided a tape recording and transcript of the interview to both prosecution and defense, the defendant attempted to subpoena the reporter to appear at a hearing to suppress the tapes. The court quashed the subpoena, citing the reporter's privilege to not disclose information about his sources.
CompareV. Procedures for issuing and contesting subpoenas
CompareA. What subpoena server must do
Compare1. Service of subpoena, time
In North Carolina, the issuance and form of subpoenas for both civil and criminal trials are controlled by Rule 45 of the North Carolina Rules of Civil Procedure. See N.C. Gen. Stat. §§ 15A-801 (subpoena for witness in criminal cases) & 15A-802 (subpoena for production of documentary evidence in criminal cases). A subpoena can require a witness to testify (subpoena ad testificandum) or require the witness to produce documentary evidence (subpoena duces tecum). The procedure for service differs for each type.
A subpoena for a witness may be served in three ways: (1) any person 18 or older who is not a party may serve the subpoena in person by the actual delivery of a copy; (2) any person 18 or older who is not a party may serve the subpoena by certified mail or by registered mail, return receipt requested; and (3) the subpoena may be served by direct telephone conversation with the party. See N.C. R. Civ. P. 45(b). In civil cases, telephone service can only be made by the sheriff, his designee who is 18 or older, or by the coroner, while in criminal cases, any employee of a local law enforcement agency can effect telephone service. Id.; N.C. Gen. Stat. § 8-59. In a criminal case, where a person has been served by telephone, neither an order to show cause nor an order for arrest can be issued until that person has also been personally served with the written subpoena. N.C. Gen. Stat. § 8-59.
A subpoena for the production of documentary evidence may be served either (1) by the actual delivery of a copy to the person, or (2) by certified mail or by registered mail, return receipt requested. N.C. R. Civ. P. 45(b). Service may be effected by any person 18 or older who is not a party. Id.
The district attorney may subpoena grand jury witnesses, and the subpoena must be served by the investigative grand jury officer, who is appointed by the court. N.C. Gen. Stat. § 15A-623(h). The witness herself is the only person who may disclose the fact that she has been subpoenaed. Otherwise, the method of service is the same as that of any other subpoena issued in a criminal matter.
Compare2. Deposit of security
State law does not require that the subpoenaing party deposit any security in order to procure the testimony or materials of a reporter. However, Rule 45(c)(1) of the North Carolina Rules of Civil Procedure provides that the party or attorney responsible for issuing and serving the subpoena is required to take reasonable steps to avoid causing an undue burden or expense. If a court finds that this requirement has been violated, the court may impose an appropriate sanction, including compensation of the person subject to the subpoena for lost earnings and reasonable attorney’s fees. Additionally, a judge may, in an order to compel a deposition or production of documents, require the requesting party to advance the reasonable cost of producing the records or other tangible things. A court may also condition the discovery of inaccessible electronically stored information on the requesting party paying the costs of locating and producing the electronically stored information requested. N.C. R. Civ. P. 45(d)(4). Furthermore, if a court finds that a person objected to a subpoena or filed a motion to quash or modify the subpoena, and that objection or motion was unreasonable or for the improper purpose of causing unnecessary delay, the court may award costs and attorney’s fees to the party who issued the subpoena. N.C. R. Civ. P. 45(e)(2).
Compare3. Filing of affidavit
Any party may request either a subpoena compelling a witness to testify or a subpoena to produce documentary evidence, and no affidavit need accompany the subpoena attesting that the material sought is relevant and material to a legal action and that attempts to obtain the information from alternative sources have failed. N.C. R. Civ. P. 45(a). However, under the North Carolina shield law, no order compelling testimony or production can issue unless a judge finds at a hearing that the person seeking the information has overcome the journalist's qualified privilege. N.C. Gen. Stat. § 8-53.11(c).
Compare4. Judicial approval
A subpoena requiring a witness to testify or produce documentary evidence can be issued at the request of any party by the clerk of court where the trial or hearing is being held. N.C. R. Civ. P. 45(a). Any superior court judge, district court judge, magistrate, or attorney as officer of the court may also issue and sign a subpoena. N.C. R. Civ. P. 45(b).
Compare5. Service of police or other administrative subpoenas
Subpoenas in administrative proceedings governed by the administrative code are issued and served in accordance with Rule 45 of the North Carolina Rules of Civil Procedure. N.C. Gen. Stat. § 150B-27. State law enforcement officers may serve a subpoena on behalf of an agency that is a party to the contested case by any method by which a sheriff may serve a subpoena, including telephone service.
Subpoenas in administrative proceedings not governed by the administrative code are issued in accordance with the statutes governing that body. See, e.g., N.C. Gen. Stat. § 62-62 (Utilities Commission).
CompareB. How to Quash
Compare1. Contact other party first
Under North Carolina law, a party receiving a subpoena does not have to contact the requesting party (or any other party) before moving the court to quash or modify a subpoena. See N.C. R. Civ. P. 45(c).
Compare2. Filing an objection or a notice of intent
North Carolina law does not impose any procedural requirements, such as giving a "notice of intent," before a motion to quash or modify a subpoena is filed. A written “objection” must set forth the specific grounds for the objection. N.C. R. Civ. P. 45(c)(3).
Compare3. File a motion to quash
Any person served with a subpoena to produce documents may move to quash or modify the subpoena on the grounds that it is "unreasonable or oppressive." N.C. R. Civ. P. 45(c)(5); Quick v. Quick, 305 N.C. 446, 290 S.E.2d 653 (1982). In addition, a reporter may make a motion to quash a request to produce documents on the grounds that the documents are privileged. See Whisenhunt v. Zammit, 86 N.C. App. 425, 358 S.E.2d 114, 116 (N.C. App. 1987) (holding that a subpoena may be quashed if the documents in question are privileged); Chappell v. Brunswick Bd. of Educ., 9 Media L. Rep. 1753 (N.C. Superior Ct. 1983) (quashing plaintiff's subpoena demanding that reporter testify about her investigation and produce her notes).
Rule 45(c) applies to both subpoenas duces tecum (i.e., subpoenas seeking the production of documents or things) and witness subpoenas. If a journalist is invoking the reporter's privilege to refuse to testify at a legal proceeding, he may do so through a motion to quash under the same procedure as a subpoena to produce documents. See, e.g., Shinn v. Price, 27 Media L. Rep. 2341 (N.C. Superior Ct. 1999); State v. McKillop, 24 Media L. Rep. 1638 (N.C. Superior Ct. 1995); State v. Demery, 23 Media L. Rep. 1958 (N.C. Superior Ct. 1995); State v. Smith, 13 Media L. Rep. 1942 (N.C. Superior Ct. 1987); Locklear v. Waccamaw Siouan Dev. Ass'n, 12 Media L. Rep. 2391 (N.C. Superior Ct. 1986).
Comparea. Which court?
A motion to quash should be filed with the judge in the action in which the subpoena was issued. N.C. R. Civ. P. 45(c)(5). In the case of a grand jury subpoena, the motion should be filed with the presiding superior court judge, who will hear the matter in camera. N.C. Gen. Stat. § 15A-623(h).
Compareb. Motion to compel
When a reporter is a party to a civil case, for example if a reporter and her newspaper or station are defendants in a libel action, the reporter's testimony may be compelled by the issuance of a notice of deposition and a subpoena. During the course of the deposition, the reporter may assert her privilege not to disclose certain information. The reporter would assert the privilege, decline to answer, and the attorney for the other side could file a motion to compel the reporter to respond. A judge would then decide the reporter's claim of privilege. N.C. R. Civ. P. 37.
Comparec. Timing
A motion to quash or modify a subpoena must be made promptly, and in any event, it must be made before the time specified for compliance with the subpoena. N.C. R. Civ. P. 45(c)(5).
Compared. Language
The North Carolina General Statutes do not prescribe any recommended language for a motion to quash a subpoena. Typically, such motions need only describe the circumstances giving rise to the subpoena, identify the interests of the moving party, and state grounds for grant of the motion. N.C. R. Civ. P. 45(c)(5).
Comparee. Additional material
There are no additional materials that need to be attached to motions to quash. However, depending on the particular circumstances, a reporter may want to submit an affidavit with the motion or other documents or materials relied upon in support of the motion.
Compare4. In camera review
Comparea. Necessity
The trial judge can decide at her discretion whether to conduct an in camera inspection of any requested documents. Rowe v. Rowe, 74 N.C. App. 54, 327 S.E.2d 624, 627 (N.C. App. 1985), cert. denied 314 N.C. 331, 333 S.E.2d 489 (N.C. 1985); Midgett v. Crystal Dawn Corp., 58 N.C. App. 734, 294 S.E.2d 386 (N.C. App. 1982).
Compareb. Consequences of consent
It is within the judge's discretion whether or not to conduct an in camera review. Consent of the parties to such review makes it more likely that a judge will review materials in camera but consent does not bind the judge in any way. The standard of review for an appeal of the judge's decision with regard to in camera review is abuse of discretion, a very difficult standard to meet. Rowe v. Rowe, 74 N.C. App. 54, 327 S.E.2d 624, 627 (N.C. App. 1985) cert. denied, 333 S.E.2d 489 (N.C. 1985); Midgett v. Crystal Dawn Corp., 58 N.C. App. 734, 294 S.E.2d 386 (N.C. App. 1982).
Comparec. Consequences of refusing
A reporter refusing to comply with an order requiring in camera review can be (and almost certainly will be) held in contempt of court, even if the court's order was erroneously issued. Massengill v. Lee, 228 N.C. 35, 44 S.E.2d 356, 358 (N.C. 1947); Midgett v. Crystal Dawn Corp., 58 N.C. App. 734, 294 S.E.2d 386 (N.C. App. 1982); Godsey v. Poe, 36 N.C. App. 682, 245 S.E.2d 522, 524 (N.C. App. 1978). The only way to contest an order requiring in camera review, which is interlocutory in nature and not subject to direct appeal, is to seek a writ of certiorari, mandamus, or prohibition from the appellate courts under the applicable rules of appellate procedure. Otherwise, an appeal will lie from a finding of contempt.
Compare5. Briefing schedule
Pursuant to Rule 5(a1) of the North Carolina Rules of Civil Procedure, N.C. Gen. Stat. § 1A-1, Rule 5(a1), in proceedings in superior court, briefs relating to motions "seeking a final determination of the rights of the parties as to one or more of the claims or parties in the action" must be served upon each of the parties at least two days before the hearing on the motion. Because motions to quash do not seek a "final determination" concerning claims or parties, this rule does not apply to such motions. Otherwise, there is typically no formal briefing schedule for motions to quash.
Compare6. Amicus briefs
Amicus briefs are sometimes submitted by interested parties and organizations at the trial court level. They are more typically filed at the appellate court level with the Court of Appeals or the Supreme Court. Organizations which have filed amicus briefs in actions involving media companies include:
Reporters Committee for Freedom of the Press
1156 15th St. NW, Suite 1020
Washington, D.C. 20005
hotline@rcfp.org
800.336.4243
North Carolina Association of Broadcasters
150 Fayetteville Street, Suite 1270 (27601)
Post Office Box 627
Raleigh, NC 27602
Phone: (919) 821-7300
Fax: (919) 834-8880
Lisa Reynolds, Executive Director
North Carolina Press Association
5171 Glenwood Avenue, Suite 486
Raleigh, NC 27612
Phone: (919) 516-8000
Fax: (919) 516-8005
Phil Lucey, Executive Director
VI. Substantive law on contesting subpoenas
CompareA. Burden, standard of proof
The party seeking to overcome a reporter's qualified privilege bears the burden of proof and must establish entitlement to the testimony or materials by the greater weight of evidence. N.C. Gen. Stat. § 8-53.11(c).
CompareB. Elements
To overcome the privilege, the party seeking the information must prove that the material sought (1) is relevant and material, (2) cannot be obtained from alternate sources, and (3) is essential to the maintenance of a claim or defense. N.C. Gen. Stat. § 8-53.11(c); see also State v. Rogers, 9 Media L. Rep. 1254, 1255 (N.C. Superior Ct. 1983). If the party does not establish each of the elements of the test, then the subpoena must be quashed. N.C. Gen. Stat. § 8-53.11(c). See State v. Smith, 13 Media L. Rep. 1942 (N.C. Superior Ct. 1987); Fulmore v. Bledsoe, 221 N.C. App. 434, 727 S.E.2d 25 (N.C. App. Ct. 2012) (affirming the trial court’s denial of plaintiffs’ motion to compel discovery because plaintiffs failed to meet burden under N.C. Gen. Stat. § 8-53.11 and defendants were protected by the journalist’s privilege).
Compare1. Relevance of material to case at bar
The material sought must be "relevant and material to the proper administration of the legal proceeding for which the testimony or production is sought." N.C. Gen. Stat. § 8-53.11(c)(1); see also Higgins v. Young, 29 Media L. Rep. 2528 (N.C. Superior Ct. 2001). In State v. Peterson, 31 Media L. Rep. 2501 (N.C. Superior Ct. 2003), the defendant's attorneys sought notes and other written material from journalists for the stated purpose of determining whether law enforcement officers had testified truthfully to the court about whether they had relayed information about the case to members of the news media. The defendant proposed that the notes be reviewed in camera by the court. In its decision, the court recognized that even in camera review constitutes a significant intrusion into the newsgathering and editorial process, and it quashed the defendant's subpoena, holding that "the mere possibility of finding evidence that the officers did not testify truthfully about their contacts with the news media" was insufficient to overcome the statutory privilege.
Compare2. Material unavailable from other sources
The material sought must not be available from alternate sources. N.C. Gen. Stat. § 8-53.11(c)(2). In State v. Fitzgerald, 39 Media L. Rep. 2251 (N.C. Superior Ct. 2011), the trial court found that the defendant had not demonstrated that the “raw, unedited footage” could not be obtained from alternate sources. In so holding, the court focused on the substance of the information sought: “[a]lthough the actual film footage and producers’ notes sought by Defendant cannot themselves be obtained from other sources, it is the substance of the information sought that is the relevant consideration (otherwise the test would virtually always be overcome because footage and personal notes themselves would, by definition, be unavailable from an alternative source).” Id.; see also State v. Spivey, 35 Media L. Rep. 1137 (N.C. Superior Ct. 2006) (“The test, under the statute, essentially is whether the party seeking the testimony can establish the essential elements of his case, and proceed to a jury, without the journalist’s testimony.”).
Comparea. How exhaustive must search be?
There are no reported appellate cases under the new shield law that attempt to define how exhaustive a search the requesting party must undertake to find the material through alternative sources. At a minimum, it is clear that the requesting party must make a showing of efforts to obtain the information. For example, in State v. Wiggins, 29 Media L. Rep. 1597 (N.C. Superior Ct. 2001), the trial court quashed a subpoena issued by the defendant in a highly-publicized capital murder trial (a local professional football player, Rae Curruth, was accused of killing his pregnant girlfriend) to a newspaper reporter seeking testimony and copies of correspondence with a witness in the trial where the defendant made no showing that the witness would not voluntarily testify and had not even attempted to subpoena the witness. One trial court applying the shield law has required a demonstration of exhaustion of all possible sources of information. See Higgins v. Young, 29 Media L. Rep. 2528 (N.C. Superior Ct. 2001). In Higgins, the trial court quashed a subpoena issued by the defendant in a civil case to a newspaper reporter seeking testimony concerning three articles published by the reporter where the defendant had not demonstrated "that the information has not been unsuccessfully sought from all other available sources, and the Court is without knowledge whether this information could have been obtained from other sources."
An "exhaustion" requirement was applied by several trial courts prior to the adoption of the shield law. See, e.g., Locklear v. Waccamaw Siouan Dev. Ass'n, 12 Media L. Rep. 2391, 2392 (N.C. Superior Ct. 1986); Johnson v. Skurow, 10 Med. L. Rep. 2463 (N.C. Superior Ct. 1984). In Locklear, a reporter was subpoenaed by the plaintiff in a civil case to give testimony for the purpose of impeaching the chairman of the defendant's board of directors. In quashing the subpoena, the court held that the plaintiff had to demonstrate that it had sought the information from all alternate sources, such as other members of the board. The court stated that the requested information must not be available from any other source not protected by the First Amendment of the United States Constitution or Article I, Section 14 of the North Carolina Constitution, and "all other potential sources of such information, and all other means of obtaining information from such sources must be exhausted."
In a federal court case, a federal district court required a newspaper reporter to release both confidential and non-confidential information obtained as a result of the reporter's investigative efforts, but only after the plaintiff presented evidence that she had deposed all known potential witnesses, that independent investigations of the city police and FBI and state SBI had not uncovered the identity of the reporter's source, and that she herself had investigated all potential sources of the information. Miller v. Mecklenburg County, 602 F. Supp. 675 (W.D.N.C. 1985) and 606 F. Supp. 488 (W.D.N.C. 1985), aff'd, 813 F.2d 402 (4th Cir. 1986) (not addressing the reporter's privilege issue), cert. denied, 479 U.S. 1100 (1987).
Compareb. What proof of search does a subpoenaing party need to make?
There are no reported appellate cases under the new shield law that attempt to define the proof of search that the requesting party must make. But see infra Section VI(B)(2)(a), Wiggins and Higgins. In a pre-shield law case, State v. Rogers, 9 Media L. Rep. 1254, 1255 (N.C. Superior Ct. 1983), the trial court stated that there must be a serious attempt to exhaust all alternative sources of the information sought, and that by examining a sufficient number of witnesses and building a record, the moving party may surmount this threshold requirement. But see Miller v. Mecklenburg County, 602 F. Supp. 675 (W.D.N.C. 1985) and 606 F. Supp. 488 (W.D.N.C. 1985), aff'd, 813 F.2d 402 (4th Cir. 1986) (not addressing the reporter's privilege issue), cert. denied, 479 U.S. 1100 (1987) (plaintiff introducing depositions and other results of her investigative efforts into evidence to prove that she had exhausted all potential alternative sources of the information sought from the reporter).
Comparec. Source is an eyewitness to a crime
No reported case in North Carolina has specifically addressed the issue of when a source is also an eyewitness or a participant in a crime. Under the shield law, the reporter's privilege does not protect a reporter's eyewitness observation of criminal or tortious conduct, see N.C. Gen. Stat. § 8-53.11(d), but the shield law does not specifically speak to the situation where a source is an eyewitness or participant in a crime. The Court of Appeals has held that the state has a compelling interest in pursuing criminal investigations, see In re Owens, 128 N.C. App. 577, 496 S.E.2d 592 (N.C. App. 1998), aff'd, 350 N.C. 656, 517 S.E.2d 605 (N.C. 1999), but this compelling interest is qualified by the requirements of the shield law. Under this law, the moving party must show that the information cannot be obtained from alternate sources. See N.C. Gen. Stat. § 8-53.11(c)(2). Some trial courts have required the moving party to show that all other means of obtaining information from such sources have been exhausted. See, e.g., Locklear v. Waccamaw Siouan Dev. Ass'n, 12 Media L. Rep. 2391, 2392 (N.C. Superior Ct. 1986). Unless the eyewitness is unavailable and there are no other sources for information about the crime, it would be difficult for the prosecution or other requesting party to meet this high burden.
Compare3. Balancing of interests
The North Carolina shield law does not incorporate an explicit balancing test or requirement. Rather, the law requires the court to evaluate (i) the relevance of the information, (ii) whether the information can be obtained from alternate sources, and (iii) whether the information is essential to the maintenance of a claim or defense of the person seeking the information.
Compare4. Subpoena not overbroad or unduly burdensome
Any person served a subpoena to produce documents may move to quash or modify the subpoena on numerous grounds, including that it is "unreasonable or oppressive." N.C. R. Civ. P. 45(c)(3)(d); Quick v. Quick, 305 N.C. 446, 290 S.E.2d 653 (1982). A subpoena may not be used to conduct a "fishing or ransacking expedition," and it is possible to move to quash a subpoena because it is overly broad. Vaughan v. Broadfoot, 267 N.C. 691, 149 S.E.2d 37, 44 (N.C. 1966).
Compare5. Threat to human life
Neither cases nor statutes in North Carolina examine whether courts are required to weigh whether the matter subpoenaed involves a threat to human life.
Compare6. Material is not cumulative
In State v. Pallas, 144 N.C. App. 277, 282, 548 S.E.2d 773, 778 (N.C. App. 2001) (a non-media case), the North Carolina Court of Appeals held that a subpoena could be quashed because the proposed testimony would have been cumulative or immaterial.
Compare7. Civil/criminal rules of procedure
Rule 45 of the North Carolina Rules of Civil Procedure governs the procedure with respect to the issuance of subpoenas in both civil and criminal cases. See N.C. Gen. Stat. §§ 15A-801 (subpoena for witness in criminal cases) & 15A-802 (subpoena for production of documentary evidence in criminal cases). Rule 45(c)(3) permits the filing of a motion to quash for a variety of reasons, including that the subpoena is "unreasonable or oppressive." This rule applies both to subpoenas duces tecum (i.e., subpoenas seeking the production of documents or things) and witness subpoenas.
Compare8. Other elements
The state courts have not listed any other elements that must be met before the privilege can be overcome.
CompareC. Waiver or limits to testimony
Compare1. Is the privilege waivable?
The North Carolina shield law does not discuss waiver of the privilege, and the issue of whether the reporter's privilege can be waived has not been decided in any reported decisions. See Fulmore v. Bledsoe, 221 N.C. App. 434, 727 S.E.2d 25 (N.C. App. 2012). While in Industrotech Constructors, Inc. v. Duke University, 67 N.C. App. 741, 743–44, 314 S.E.2d. 272, 274 (N.C. App. 1984) (a non-media case), the Court of Appeals stated that "it is well established in this state that even absolutely privileged matter may be inquired into where the privilege has been waived by disclosure," the journalist's privilege is unique in that it belongs to the journalist and not the source. Moreover, because its goal is to enhance the flow of information, it may be argued that the reporter may choose when and how to disclose information without waiving the privilege for other purposes.
Compare2. Elements of waiver
Comparea. Disclosure of confidential source's name
No reported case in North Carolina has addressed whether disclosure of a confidential source's name is sufficient to find waiver of the privilege.
Compareb. Disclosure of non-confidential source's name
No reported case in North Carolina has addressed whether the disclosure of a non-confidential source's name is sufficient to find waiver of the privilege.
Comparec. Partial disclosure of information
No reported case in North Carolina has addressed whether the journalist's disclosure of some information from the source waives the privilege.
Compared. Other elements
No North Carolina case has found other elements or circumstances where the journalist, through his or her own actions, has waived the privilege.
Compare3. Agreement to partially testify act as waiver?
No North Carolina case has addressed whether when the reporter agrees to partially testify—such as to confirm that the story is accurate and true as published—the privilege is deemed waived. Such "partial testimony" is not inconsistent with the protections of the shield law, but the more a journalist says on the witness stand the greater the likelihood that a trial judge would conclude that a journalist has waived the privilege.
CompareVII. What constitutes compliance?
CompareA. Newspaper articles
Newspapers and periodicals are self-authenticating under the North Carolina Rules of Evidence, and the journalist is not required to testify in court that a particular article appeared in a newspaper or magazine. N.C. R. Evid. 902(6). Accordingly, there should be no reason for a journalist to have to appear in court for a party to put a newspaper article in evidence. Nonetheless, there is no explicit mechanism under the rule governing subpoenas for a journalist, acting unilaterally, to submit an affidavit in lieu of testimony. See N.C. R. Civ. P. 45(c)(2) (only permitting custodians of "public records" and hospital medical records to submit an affidavit in lieu of personal appearance).
CompareB. Broadcast materials
Motion pictures and videotapes, including broadcast materials, are not self-authenticating under Rule 902(6) of the North Carolina Rules of Evidence, but they are admissible into evidence under the same rules applicable to still photographs. State v. Strickland, 285 N.C. 253, 173 S.E.2d. 129 (N.C. 1970); State v. Lewis, 58 N.C. App. 348, 351, 293 S.E.2d. 638, 640 (N.C. App. 1982). A witness other than the photographer can testify that a photograph is authentic. State v. Gardner, 228 N.C. 567, 573, 46 S.E.2d. 824, 828 (N.C. 1948); White v. Hines, 182 N.C. 275, 109 S.E. 31, 34 (N.C. App. 1921). For example, in the Lewis case, a sheriff testified as to the authenticity of television videotape of a crime scene. 58 N.C. App. at 351.
CompareC. Testimony vs. affidavits
As discussed above, it is not necessary for journalists to authenticate articles or broadcast materials in North Carolina. However, there is no explicit mechanism under Rule 45 of the North Carolina Rules of Civil Procedure for a journalist to submit an affidavit in lieu of testimony. See Rule 45(c)(2) (only permitting custodians of "public records" and hospital medical records to submit an affidavit in lieu of personal appearance). One federal district court allowed a newspaper reporter to comply with an order requiring release of the identity of his confidential source by submitting an affidavit to the court, which affidavit was subject to a protective order issued by the court. See Miller v. Mecklenburg County, 602 F. Supp. 675 (W.D.N.C. 1985) and 606 F. Supp. 488 (W.D.N.C. 1985), aff'd, 813 F.2d 402 (4th Cir. 1986) (not addressing the reporter's privilege issue), cert. denied, 479 U.S. 1100 (1987).
CompareD. Non-compliance remedies
Compare1. Civil contempt
In general, contempt is "civil" if the contemnor may avoid the penalty by performing some act required by the court, such as complying with the original order. Bishop v. Bishop, 90 N.C. App. 499, 369 S.E.2d 106, 109 (N.C. App. 1988) (citing Hicks v. Feiock, 485 U.S. 624 (1988)).
If a subpoena is held to be valid, a reporter may be sanctioned for contempt of court. N.C. R. Civ. P. 45(e). To find someone in contempt, the court must make appropriate findings of fact to support the order. Smith v. Smith, 247 N.C. 223, 100 S.E.2d 370 (N.C. 1957). However, a witness should not ignore a valid subpoena and risk a contempt sanction. Although there appear to be no reported decisions directly on point, the practice is that once a motion to quash has been filed in response to a subpoena a witness may refuse to comply with the subpoena until the motion has been ruled upon.
Comparea. Fines
In civil actions, a witness who disregards a subpoena must pay forty dollars ($40.00) to the party who issued the subpoena. N.C. Gen. Stat. § 8-63. In addition, the witness is liable "for the full damages which may be sustained for the want of such witness's testimony." Id.
Compareb. Jail
While journalists may be jailed for civil contempt until they comply with a subpoena since they "hold the keys to the jailhouse," there are no North Carolina state cases in which a journalist has been jailed for civil contempt. However, in a federal court case, a reporter for the Wilmington, North Carolina Morning Star newspaper was found in civil contempt by a federal district court for refusing to divulge the identities of certain confidential news sources and remanded to the custody of the United States Marshal "until such time as he purges himself of contempt by complying with the terms of the Orders of this Court." See Ashcraft v. Conoco, Inc., 218 F.3d 282, 286, 28 Media L. Rep. 2103 (4th Cir. 2000). This order, however, was stayed by the Fourth Circuit and, on the merits, the Fourth Circuit reversed the lower court's contempt order concluding that the basis of the court's order, the purported enforcement of a confidentiality order entered by the court, was invalid because of the court's failure to comply with the legal prerequisites for the entry of confidentiality orders. Id.
Compare2. Criminal contempt
In general, contempt is "criminal" if the penalty is punitive in nature, such as a jail sentence limited to a definite period of time without possibility of avoidance by the contemnor's performance of an act required by the court or a fine payable to the court rather than to the complainant. Bishop v. Bishop, 90 N.C. App. 499, 369 S.E.2d 106, 109 (1988) (citing Hicks v. Feiock, 485 U.S. 624 (1988)).
In In re Owens, 128 N.C. App. 577, 496 S.E.2d 592 (N.C. App. 1998), aff'd, 350 N.C. 656, 517 S.E.2d 605 (N.C. 1999), a journalist was sentenced to thirty days in jail for refusing to testify about non-confidential information obtained from non-confidential sources. The trial judge reduced her sentence to two hours and released her. There are no other reported cases in North Carolina of a journalist jailed as a result of a finding of criminal contempt.
Compare3. Other remedies
No reported cases.
CompareVIII. Appealing
CompareA. Timing
Compare1. Interlocutory appeals
Denial of a motion to quash or grant of a motion to compel discovery are interlocutory orders because they do not resolve all or part of the claims in the underlying proceeding. Typically interlocutory orders are not immediately appealable, see Godley Auction Co. v. Myers, 40 N.C. App. 570, 253 S.E.2d 362 (N.C. 1979) and Benfield v. Benfield, 89 N.C. App. 415, 418, 366 S.E.2d 500, 502 (N.C. 1988), unless they affect a substantial right. See N.C. Gen. Stat. § 1-277(a); N.C. Gen. Stat. § 7A-27(a)(3). It is well-established that an interlocutory order is appealable under the "substantial right" exception where (i) the right itself is substantial, and (ii) the order deprives the appellant of a substantial right which will be lost if the order is not reviewed before final judgment. See, e.g., J & B Slurry Seal Co. v. Mid-South Aviation, Inc., 88 N.C. App. 1, 5–6, 362 S.E.2d 812, 815 (N.C. App. 1987).
There is no reported appellate decision holding that an order requiring a journalist to produce newsgathering information affects a substantial right, but there should be little doubt that it does. First, if journalists are forced to comply with an order requiring them to produce their privileged newgathering information, their constitutional and statutory privilege protecting them from releasing such information will be lost if the disclosure order is not reviewed before final judgment in the underlying proceeding. Second, the North Carolina Supreme Court has held that when a party asserts a statutory privilege which directly relates to the matter to be disclosed under an interlocutory discovery order, and the assertion of such privilege is not otherwise frivolous or insubstantial, the challenged order affects a "substantial right" for appellate purposes. Sharpe v. Worland, 351 N.C. 159, 522 S.E.2d 577 (N.C. 1999), on remand 137 N.C. App. 82, 527 S.E.2d 75 (N.C. App. 2000) (finding right to appeal where hospital asserted statutory privilege as basis for not producing documents). Journalists, of course, have a statutory privilege against being forced to produce information obtained in the court of newsgathering. N.C. Gen. Stat. § 8-53.11.
When a journalist is held in contempt for failing to comply with a discovery order, the order is immediately appealable for the purpose of testing the validity both of the original discovery order and the contempt order. See, e.g., Willis v. Duke Power Co., 291 N.C. 19, 30, 229 S.E.2d 191, 198 (N.C. 1976) (litigant held in contempt); Wilson v. Wilson, 124 N.C. App. 371, 374–75, 477 S.E.2d 254, 256 (N.C. App. 1996) (litigant held in contempt); Mack v. Moore, 91 N.C. App. 478, 480, 372 S.E.2d 314, 316 (N.C. App. 1988) (discovery order not immediately appealable due to lack of enforcement sanctions); B.B. Walker & Hrub Corp. v. Liberty Mut. Ins. Co., 84 N.C. App. 552, 554–55, 353 S.E.2d 425, 426 (N.C. App. 1987) (discovery order immediately appealable when enforced by sanctions under Rule 37(b)).
An appeal must be filed within 30 days after entry of the order being appealed. See N.C. App. R. 3(c). The announcement of an order in open court begins the time when the appeal can be filed, but the 30 day time limitation only begins after the written order has been entered. See Abels v. Renfro Corp., 126 N.C. App. 800, 803, 486 S.E.2d 735, 738 (N.C. App. 1997) review denied, 347 N.C. 263, 493 S.E.2d 450 (N.C. 1997).
In the event that an order does not affect a "substantial right" and, therefore, is not immediately appealable, a party can seek review in the appellate courts by filing a petition for writ of certiorari. See N.C. App. R. 21; N.C. Gen. Stat. § 7A-32. There is no specific time in which such a petition must be filed, but it must be filed "without unreasonable delay." N.C. App. R. 21(c). In general, certiorari is appropriate "where a decision of the principal question presented would expedite the administration of justice, or where the case involves a legal issue of public importance." Bardolph v. Arnold, 112 N.C. App. 190, 435 S.E.2d 109 (1993) (quoting Flaherty v. Hunt, 82 N.C. App. 112, 345 S.E.2d 426 (N.C. App. 1986)); see also Industrotech Constructors, Inc. v. Duke Univ., 67 N.C. App. 741, 314 S.E.2d 272 (N.C. App. 1984) (allowing certiorari with respect to discovery order requiring production of confidential arbitration transcripts).
Compare2. Expedited appeals
There are no explicit rules or statutes setting forth procedures for requesting expedited appeals. Likewise, there is no statute or reported case establishing a right to expedited appeal in a reporter's privilege case. Nonetheless, the appellate courts do entertain motions for expedited briefing and oral argument schedules, and, where a showing of need is made, the courts do grant such motions. In particular, where constitutional rights are at stake, the appellate courts have shown sensitivity to the need for expedited proceedings.
CompareB. Procedure
Compare1. To whom is the appeal made?
Any party who is entitled by law to appeal a judgment or order of a superior or district court in North Carolina may appeal that order by filing notice with the clerk of superior court and serving notice on the other parties. N.C. App. R. 3(a) & (c). Appeal from an order of superior or district court lies with the Court of Appeals. An appellant may seek to bypass the Court of Appeals and go straight to the Supreme Court by filing a Petition for Discretionary Review with the Supreme Court. See N.C. App. R. 15; N.C. Gen. Stat. § 7A-31. Such a petition must be filed within 15 days of the appeal being docketed in the Court of Appeals. N.C. App. R. 15(b).
Compare2. Stays pending appeal
A request for a stay of a trial court order pending appeal should be made first to the trial court. N.C. App. R. 8(a). If denied, application for a stay pending appeal may be made to the appellate court by filing a petition for a writ of supersedeas. N.C. App. R. 23.
Application to the appellate court to stay a trial court order is properly considered only when an appeal has been taken or a petition for mandamus, prohibition, or certiorari has been filed to obtain review of the order. Craver v. Craver, 298 N.C. 231, 258 S.E.2d 357 (N.C. 1979); N.C. App. R. 23(a)(1). In other words, the writ of supersedeas may issue only in the exercise of, and as ancillary to, the underlying jurisdiction of the appellate court, and its purpose is to preserve the status quo pending the exercise of appellate jurisdiction. New Bern v. Walker, 255 N.C. 355, 121 S.E.2d 544 (N.C. 1961).
An appeal operates as a stay of all proceedings in the lower court relating to the issues included in the appeal. See, e.g., SED Holdings, LLC v. 3 Star Props., LLC, 791 S.E.2d 914, 918 (N.C. App. 2016); Lowder v. All Star Mills, Inc., 301 N.C. 561, 273 S.E.2d 247 (N.C. 1981); Joyner v. Joyner, 256 N.C. 588, 591, 124 S.E.2d 724, 727 (N.C. 1962). However, an appeal by itself does not stay enforcement of the order under review.
Compare3. Nature of appeal
As discussed supra at Section VII(A)(2), a right of appeal lies from an interlocutory order that affects a substantial right. Where an interlocutory order does not affect a substantial right, a party may seek review by filing a petition for writ of certiorari with the appellate court.
Compare4. Standard of review
The North Carolina shield law does not address the standard of review on appeal, and no reported appellate decision has addressed the appropriate standard of review in a reporter's privilege case.
However, the shield law does contain specific requirements that must be met by the trial court in compelling production or testimony. Specifically, (i) the party requesting disclosure must establish by the greater weight of evidence that the statutory factors overcoming the reporter's privilege are met; (ii) any order compelling testimony or production can be issued only after notice to the journalist and a hearing; and (iii) any order compelling testimony must include clear and specific findings as to the showing made by the person seeking the testimony or production. N.C. Gen. Stat. § 8-53.11(c). Presumably an appellate court would conduct a clearly erroneous review as to whether these statutory requirements had been met.
In general, motions to quash are "addressed to the sound discretion of the court in which the action is pending." Vaughan v. Broadfoot, 267 N.C. 691, 697, 149 S.E.2d 37, 42 (N.C. 1966). Therefore, an appeal from the denial of a motion to quash will be reviewed under an abuse of discretion standard.
The standard of review for contempt proceedings is limited to determining whether there is competent evidence to support the findings of fact and whether the findings support the conclusions of law. Sharpe v. Nobles, 127 N.C. App. 705, 493 S.E.2d 288 (N.C. App. 1997); Koufman v. Koufman, 97 N.C. App. 227, 230, 388 S.E.2d 207, 209 (N.C. App. 1990), rev'd on other grounds, 330 N.C. 93, 408 S.E.2d 729 (N.C. 1991).
The North Carolina appellate courts have not addressed whether or not the constitutional basis of the reporter's privilege affects the standard of review on appeal.
Compare5. Addressing mootness questions
There are no North Carolina cases which address the issue of mootness in the context of a subpoenaed reporter.
Compare6. Relief
An appellate court can either reverse, vacate, or remand for further proceedings a finding of contempt or denial of a motion to quash. The precise relief that a reporter should seek depends on the facts of each case, but, in general, a reporter will seek to have the appellate court reverse and vacate a finding of contempt or denial of a motion to quash to avoid having to relitigate the same issue before the same trial judge.
CompareIX. Other issues
CompareA. Newsroom searches
There are no reported cases in which the federal Privacy Protection Act, 42 U.S.C. § 2000-AA, which drastically limits searches of newsrooms, has been construed in North Carolina. There are no similar provisions under state law.
CompareB. Separation orders
There are no reported cases or state statutes involving journalists who are both on the witness list and covering the trial.
CompareC. Third-party subpoenas
There are no reported cases applying state law in which subpoenas have been issued to third parties such as telephone companies or Internet service providers in an attempt to locate a journalist's source or other protected newsgathering information.
However, in a highly publicized case brought in federal court in North Carolina, a federal court issued a protective order denying access to such information. See Food Lion, Inc. v. Capital Cities/ABC, Inc., 951 F. Supp 1211 (M.D.N.C. 1996). Food Lion arose out of the broadcast of a Prime Time Live program in which journalists used hidden cameras and "undercover" employees to suggest that Food Lion's corporate goals of promoting efficiency and reducing waste result in the sale of unsanitary food to consumers. In discovery, Food Lion issued a large number of third party subpoenas to hotels, letter carrier services, and telecommunications companies seeking documentation of communications to and from ABC journalists during an eighteen-month period. The district court issued a protective order prohibiting these third party subpoenas on the grounds that the subpoenas (i) were overbroad and (ii) intruded upon ABC's First Amendment interest in protecting confidential sources. With regard to the constitutional basis of its decision, the court relied on a Fourth Circuit case arising out of North Carolina that recognized the reporter's privilege under the federal constitution, Miller v. Mecklenburg County, 602 F. Supp. 675, 11 Media L. Rep. 1566 (W.D.N.C. 1985), aff'd, 813 F.2d 402 (4th Cir. 1986), cert. denied, 479 U.S. 1100 (1987), but neither the Food Lion nor the Miller court specified whether they were applying North Carolina law.
Under North Carolina's shield law, the definition of "journalist" includes "employees, independent contractors, or agents" of the journalist. See N.C. Gen. Stat. § 8-53.11(a)(1). Therefore, third party subpoenas that are intended to circumvent the reporter's privilege are prohibited to the extent they are directed at third parties who may be characterized as "agents" of the journalist. In addition, journalists may still raise objections to such third party subpoenas based on the protections of the federal and state constitutions.
CompareD. The source's rights and interests
In Cohen v. Cowles Media Co., 501 U.S. 663 (1991), the United States Supreme Court held that the First Amendment did not prohibit confidential sources from recovering damages for a newspaper publisher's breach of the promise of confidentiality in exchange for information. The underlying claim in Cohen, however, was based on a theory of promissory estoppel under Minnesota law.
There are no reported North Carolina decisions involving claims against the media for breach of contract or promissory estoppel for the disclosure of the identity of a confidential source. In general, North Carolina law regarding breach of contract is consistent with standard "hornbook" principles. In order for a valid contract to exist, there must be an agreement of the parties upon the essential terms of the contract, definite within themselves or capable of being made definite. See, e.g., Horton v. Humble Oil & Refining Co., 255 N.C. 675, 122 S.E.2d 716 (N.C. 1961). In addition, there must be an offer, acceptance, and consideration. See, e.g., Investment Properties of Asheville, Inc. v. Norburn, 281 N.C. 191, 188 S.E.2d 342 (N.C. 1972). North Carolina law also recognizes promissory estoppel as a valid defense in cases where there has been an intended abandonment of an existing right by the promisee. See, e.g., Clement v. Clement, 230 N.C. 636, 55 S.E.2d 459 (N.C. 1949) (applying promissory estoppel where plaintiff had previously agreed not to charge interest); Brooks v. Hackney, 329 N.C. 166, 404 S.E.2d 854 (N.C. 1991) (applying estoppel where seller sought to void a real estate contract). The elements of promissory estoppel are (1) proof of express or implied promise and (2) detrimental reliance on that promise. See Wachovia Bank & Trust Co. v. Rubish, 306 N.C. 417, 293 S.E.2d 749 (N.C. 1982). However, the North Carolina Supreme Court has yet to approve the use of the doctrine of promissory estoppel as a cause of action for affirmative relief. See Home Elec. Co. v. Hall & Underdown Heating & Air Conditioning Co., 86 N.C. App. 540, 358 S.E.2d 539 (N.C. App. 1987), aff'd, 322 N.C. 107, 366 S.E.2d 441 (N.C. 1988) (per curiam). In addition, North Carolina law has not recognized the doctrine as a substitute for consideration. See id.
There are no reported cases involving a source's right to intervene anonymously in a proceeding to prevent disclosure of his or her identity.
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