6th Circuit
Reporter's Privilege Compendium
David Marburger
Marburger Law LLC
14700 Detroit Ave., Suite 1
Cleveland, OH 44107
I. Introduction: History & Background
While the 6th Circuit definitely recognizes some sort of privilege for reporters faced with subpoenas from litigants, the scope and contours of that privilege are as yet not entirely defined. For instance, whereas the privilege is relatively strong in the civil context, its application in criminal cases is less certain, due to dictum in a case decided in 1987 stating that no such protection exists, under the First Amendment, for grand jury subpoenas. It is also unclear whether the privilege protects nonconfidential information and/or information beyond the mere identity of confidential sources. The U.S. Court of Appeals for the 6th Circuit has decided only two cases on the topic, and district courts within the circuit have also had relatively few opportunities to develop the privilege
CompareII. Authority for and source of the right
Courts recognizing the privilege derive it from the First Amendment. However, the most recent Court of Appeals case discussed the privilege in terms of the commercial speech doctrine, rather than the traditional First Amendment analysis based on the U.S. Supreme Court case, Branzburg v. Hayes. See NLRB v. Midland Daily News, 151 F.3d 472 (6th Cir. 1998). The 6th Circuit Court of Appeals has rejected the theory that a privilege exists under the First Amendment for criminal cases, but this language has been dismissed as dictum in later district court cases. See In re Grand Jury Proceedings, 810 F.2d 580 (6th Cir. 1987); Southwell v. Southern Poverty Law Center, 949 F. Supp. 1303 (W.D. Mich. 1996).
More recent district court decisions have found no First Amendment privilege in criminal or civil cases. See Lentz v. City of Cleveland, 410 F. Supp. 2d 673 (N.D. Ohio 2006); Hade v. City of Fremont, 233 F. Supp. 2d 884 (N.D. Ohio 2002) (criticizing Southwell's dismissal of In re Grand Jury Proceedings' language as dicta and finding no privilege in criminal or civil cases); In re Daimler Chrysler, 216 F.R.D. 395 (E.D. Mich. 2003).
Three district courts quashed demands for reporter’s materials under the federal rules of civil procedure governing discovery because they were not substantially relevant to the elements of the plaintiffs’ claims. See Omokehinde v. Detroit Bd. of Educ., 251 F.R.D. 261 2007 WL 4357794 (E.D. Mich., Dec. 13, 2007); Johnson v. Metropolitan Government of Nashville and Davidson County, No. 3:07-0979, 2009 WL 819490 (M.D. Tenn., Mar. 27, 2009); L.W. v. Knox County Bd. of Educ., No. 3:05-CV-274, 2008 WL 82000736, Media L. Rep. 1721 (E.D. Tenn., March 25, 2008).
The Sixth Circuit has held that a reporter can invoke the Fifth Amendment when ordered to reveal sources if the receipt of the information is illegal under various federal statutes that criminalize the unauthorized disclosure and receipt of confidential government documents and information. Convertino v. U.S. Dept. of Justice, 795 F.3d 587, 43 Media L. Rep. 2298 (6th Cir. 2015).
CompareA. Shield law statute
CompareB. State constitutional provision
CompareC. Federal constitutional provision
CompareD. Other sources
CompareIII. Scope of protection
CompareA. Generally
While the 6th Circuit definitely recognizes some sort of privilege for reporters faced with subpoenas from litigants, the scope and contours of that privilege are as yet not entirely defined. For instance, whereas the privilege is relatively strong in the civil context, its application in criminal cases is less certain, due to dictum in a case decided in 1987 stating that no such protection exists, under the First Amendment, for grand jury subpoenas. It is also unclear whether the privilege protects nonconfidential information and/or information beyond the mere identity of confidential sources.
CompareB. Absolute or qualified privilege
The privilege is qualified. A court faced with a claim of privilege must balance certain factors in determining whether compelled disclosure is proper.
CompareC. Type of case
Compare1. Civil
In the civil context, federal courts within the Sixth Circuit have applied the First Amendment to bar compelled disclosure of a newspaper's confidential sources, but have not addressed whether the First Amendment would bar compelled disclosure of information likely to lead to the identity of a confidential source. Southwell v. Southern Poverty Law Ctr, 949 F. Supp. 1303 (W.D. Mich. 1996); NLRB v. Midland Daily News, 151 F.3d 472 (6th Cir. 1998).
In upholding a newspaper's refusal to comply with a civil administrative subpoena from a federal agency in the context of a labor dispute, the Sixth Circuit has recognized the right of the press to avoid compelled disclosure of commercial information received from a source to whom the newspaper promised anonymity. NLRB v. Midland Daily News, 151 F.3d 472 (6th Cir. 1998). Midland Daily News is the only 6th Circuit ruling in a civil context addressing a newspaper's constitutional right to resist complying with a subpoena.
In Midland Daily News, the Court affirmed a district court's refusal to enforce an NLRB subpoena for the identity of an advertiser who placed a "blind" employment ad. Because of the commercial context, the Sixth Circuit applied the standards of the First Amendment's commercial speech doctrine. The Court examined whether a substantial government interest supported enforcement of the NLRB subpoena, whether enforcement of the subpoena would directly advance the asserted government interest, and whether the subpoena was more extensive than necessary to achieve the government's asserted goal. The NLRB said that it wanted the information to determine the accuracy of a union's charges that the employer discriminated against union members. Ruling that the NLRB failed to demonstrate that its use of subpoena power was not more extensive than necessary to acquire the desired information, the Sixth Circuit observed: "if this court permitted the Board to obtain the identity of Midland's advertiser, without demonstrating a reasonable basis for seeking such information, the chilling effect on the ability of every newspaper and periodical to publish lawful advertisements would clearly violate the Constitution."
The logical conclusion of Midland Daily News is that a court would more strictly scrutinize a civil subpoena in a noncommercial context because regulation of noncommercial speech usually is subject to more demanding judicial scrutiny.
Where the press is subpoenaed in the context of criminal litigation or a grand jury investigation, there is doubt as to whether the Sixth Circuit recognizes any special prerogative of the press to resist the subpoena. In In re Grand Jury Proceedings, 810 F.2d 580 (6th Cir. 1987), the Sixth Circuit opined that the First Amendment provides the press with protection only from grand jury subpoenas issued in bad faith to harass the press or to disrupt its relationship with its sources, and upheld the use of a grand jury subpoena to obtain video outtakes recorded by a television journalist in a context in which the taped subjects expected anonymity.
However, the court's apparent negation of any greater First Amendment protection appears to have been nonbinding dicta because the court found that, even if strict First Amendment protection applied, its demands were satisfied given the evidence. See Southwell v. Southern Poverty Law Ctr, 949 F. Supp. 1303 (W.D. Mich. 1996) (Sixth Circuit's negation of First Amendment reporters' privilege was "dictum").
Addressing the test for strict First Amendment scrutiny, the Sixth Circuit ruled that the government had succeeded in making a "clear and convincing showing" that the journalist had "information that is clearly relevant to a specific violation of criminal law," and that "the information is not available from alternative sources." That test would be more demanding of the proponent of disclosure than is the commercial speech test of Midland Daily News.
The U.S. District Court for the Western District of Michigan has ruled that the First Amendment affords a reporters' privilege against forced disclosure of confidential sources in the context of civil litigation. Southwell v. Southern Poverty Law Ctr, 949 F. Supp. 1303 (W.D. Mich. 1996).
Three cases from Sixth Circuit district courts have decided in civil cases that there is no First Amendment privilege. Lentz v. City of Cleveland, 410 F. Supp. 2d 673 (N.D. Ohio 2006); In re Daimler Chrysler, 216 F.R.D. 395 (E.D. Mich. 2003); Hade v. City of Fremont, 233 F. Supp. 2d 884 (N.D. Ohio 2002).
Compare2. Criminal
In the context of a grand jury investigation of a homicide, the Sixth Circuit refused to overturn a contempt conviction of a television reporter who refused to comply with a grand jury subpoena for video outtakes showing the likenesses of potential suspects who expected anonymity when the journalist taped them. In re Grand Jury Proceedings, 810 F.2d 580 (6th Cir. 1987).
If the First Amendment bars enforcement of subpoenas against the press in the context of criminal litigation or investigations, the federal courts have given no indication as to whether it would apply to information that might lead to the identity of a confidential source, whether it would apply only to the information that actually identifies a confidential source, or whether it would apply at all. In Grand Jury Proceedings, the Sixth Circuit opined that there is no special First Amendment protection from grand jury subpoenas, but that opinion is likely nonbinding dicta. Southwell v. Southern Poverty Law Ctr, 949 F. Supp. 1303 (W.D. Mich. 1996); see NLRB v. Midland Daily News, 151 F.3d 472 (6th Cir. 1998).
Compare
3. Grand jury
Where the press is subpoenaed in the context of a grand Jury investigation, there is no doubt as to whether the Sixth Circuit recognizes any special prerogative of the press to resist the subpoena. In the only reported federal decision within the Sixth Circuit that addresses the reporters' privilege in a grand Jury context, the Sixth Circuit opined that the First Amendment provides the press with protection from grand jury subpoenas only where issued in bad faith to harass the press or to disrupt its relationship with its sources, and upheld the use of a grand jury subpoena to obtain video outtakes recorded by a television journalist in a context in which the taped subjects expected anonymity. In re Grand Jury Proceedings, 810 F.2d 580 (6th Cir. 1987).
However, the courts' apparent negation of any greater First Amendment protection appears to have been nonbinding dicta because the court found that, even if strict First Amendment protection applied, its demands were satisfied given the evidence in the case. See Southwell v. Southern Poverty Law Ctr., 949 F.Supp. 1303 (W.D. Mich. 1996) (Sixth Circuit's negation of First Amendment reporter's privilege was "dictum").
Addressing the test for strict First Amendment scrutiny, the Sixth Circuit ruled that the government had succeeded in making a "clear and convincing showing" that the journalist had "information that is clearly relevant to a specific violation of criminal law," and that "the information is not available from alternative sources." The Sixth Circuit asserted, however, that the First Amendment requires no such standard, making successful resistance to a grand jury subpoena quite difficult.
Nevertheless, 11 years later, the Sixth Circuit applied the First Amendment to uphold a newspaper's refusal to comply with a National Labor Relations Board civil subpoena seeking the identity of a confidential advertiser. NLRB v. Midland News, 151 F.3d 472 (6th Cir. 1998). Although in Midland Daily News, the Sixth Circuit made no mention of its earlier ruling in Grand Jury, its application of the First Amendment to bar enforcement of the NLRB subpoena buttresses the assertion that the court's opinion in Grand Jury was dicta to the extent that it denied the existence of a First Amendment reporter's privilege.
CompareD. Information and/or identity of source
In civil contexts, federal courts within the Sixth Circuit have applied the First Amendment to bar compelled disclosure of a newspaper's confidential sources. Southwell v. Southern Poverty Law Ctr., 949 F. Supp. 1303 (W.D. Mich. 1996); NLRB v. Midland Dailey News, 151 F.3d 472 (6th Cir. 1998).
In the context of a grand jury investigation of a homicide, the Sixth Circuit refused to overturn a contempt conviction of a television reporter who refused to comply with a grand jury subpoena for video outtakes showing the likenesses of potential suspects who expected anonymity when the journalist taped them. In re Grand Jury Proceedings, 810 F.2d 580 (6th Cir. 1987).
If the First Amendment bars enforcement of subpoenas against the press in the context of criminal litigation or investigations, the federal courts have given no indication as to whether it would apply to information that might lead to the identity of a confidential source, whether it would apply only to the information that actually identifies a confidential source, or whether it would apply at all. In Grand Jury Proceedings, the Sixth Circuit opined that there is no special First Amendment protection from grand jury subpoenas, but that opinion is likely nonbinding dicta. Southwell v. Southern Poverty Law Ctr., 949 F.Supp. 1303 (W.D. Mich. 1996); see NLRB v. Midland Daily News, 151 F.3d 472 (6th Circ. 1989).
In the civil context, federal courts have applied the First Amendment to bar compelled disclosure of the actual identities of confidential sources, but have not addressed whether the First Amendment would bar compelled disclosures of information likely to lead to the identity of a confidential source. NLRB v. Midland Daily News, 151 F.3d 472 (6th Cir. 1998); Southwell v. Southern Poverty Law Ctr., 949 F.Supp. 1303 (W.D. Mich. 1996).
Even when a First Amendment privilege is not recognized, some courts have protected journalists. A Sixth Circuit district court found that the reporters at issue did not have to disclose information from, or names of, confidential sources because the information sought could be obtained from other sources, the request was overly broad and burdensome, and the information may duplicate of information gathered from other sources. In re Daimler Chrysler, 216 F.R.D. 395 (E.D. Mich. 2003).
Another Sixth Circuit district court found the relationship between the information sought and the plaintiff's claim too tenuous and declined to subpoena a reporter. The reporter had gained access to pre-employment psychological evaluations of a police officer who was making a claim for discrimination. Lentz v. City of Cleveland, No. 1:04CV0669, 2006 U.S. Dist. LEXIS 32078 (N.D. Ohio May 22, 2006). However, earlier in the same case, the court had found that the reporter could be subpoenaed for the same information when it related to invasion of privacy claims against his employer, as there was a clear relationship between the information and those claims. Lentz v. City of Cleveland, 410 F. Supp. 2d 673 (N.D. Ohio 2006).
Disclosure may be compelled where 1) the reporter is not being harassed, 2) the information is being sought in good faith, 3) the information has more than a remote or tenuous relationship with the case, and 4) there is a legitimate need for disclosure, the identity of a source may be compelled. Hade v. City of Fremont, 233 F. Supp. 2d 884 (N.D. Ohio 2002) (citing the test devised in In re Grand Jury Proceedings, 810 F.2d 580 (6th Cir. 1987)).
CompareE. Confidential and/or nonconfidential information
In civil contexts, federal courts within the Sixth Circuit have applied the First Amendment to bar compelled disclosure of a newspaper's confidential sources. Southwell v. Southern Poverty Law Ctr, 949 F. Supp. 1303 (W.D. Mich. 1996); NLRB v. Midland Daily News, 151 F.3d 472 (6th Cir. 1998).
In the context of a grand jury investigation of a homicide, the Sixth Circuit refused to overturn a contempt conviction of a television reporter who refused to comply with a grand jury subpoena for video outtakes showing the likenesses of potential suspects who expected anonymity when the journalist taped them. In re Grand Jury Proceedings, 810 F.2d 580 (6th Cir. 1987).
If the First Amendment bars enforcement of subpoenas against the press in the context of criminal litigation or investigations, the federal courts have given no indication as to whether it would apply to information that might lead to the identity of a confidential source, whether it would apply only to the information that actually identifies a confidential source, or whether it would apply at all. In Grand Jury Proceedings, the Sixth Circuit opined that there is no special First Amendment protection from grand jury subpoenas, but that opinion is likely nonbinding dicta. Southwell v. Southern Poverty Law Ctr, 949 F. Supp. 1303 (W.D. Mich. 1996); see NLRB v. Midland Daily News, 151 F.3d 472 (6th Cir. 1998).
Federal courts in the Sixth Circuit have not addressed whether the First Amendment would bar compelled disclosure of unpublished, nonconfidential information gathered by a journalist. See NLRB v. Midland Daily News, 151 F.3d 472 (6th Cir. 1998); Southwell v. Southern Poverty Law Ctr, 949 F. Supp. 1303 (W.D. Mich. 1996).
Given that the very existence of First Amendment protection may be at issue within the Sixth Circuit, doubts should be resolved against First Amendment protection from subpoenas seeking unpublished, nonconfidential information.
Even without a First Amendment privilege, some courts have nonetheless protected journalists. A Sixth Circuit district court found that the reporters at issue did not have to disclose information from, or names of, confidential sources because the information sought could be obtained from other sources, the request was overly broad and burdensome, and the information may duplicate information gathered from other sources. In re Daimler Chrysler, 216 F.R.D. 395 (E.D. Mich. 2003).
Another Sixth Circuit district court found the relationship between the information sought and the plaintiff's claim too tenuous and declined to subpoena a reporter. The reporter had gained access to pre-employment psychological evaluations of a police officer who was making a claim for discrimination. Lentz v. City of Cleveland, No. 1:04CV0669, 2006 U.S. Dist. LEXIS 32078 (N.D. Ohio May 22, 2006). However, earlier in the same case, the court had found that the reporter could be subpoenaed for the same information when it related to invasion of privacy claims against his employer, as there was a clear relationship between the information and those claims. Lentz v. City of Cleveland, 410 F. Supp. 2d 673 (N.D. Ohio 2006).
Disclosure may be compelled where 1) the reporter is not being harassed, 2) the information is being sought in good faith, 3) the information has more than a remote or tenuous relationship with the case, and 4) there is a legitimate need for disclosure, the identity of a source may be compelled. Hade v. City of Fremont, 233 F. Supp. 2d 884 (N.D. Ohio 2002) (citing the test devised in In re Grand Jury Proceedings, 810 F.2d 580 (6th Cir. 1987)).
CompareF. Published and/or non-published material
The federal courts within the Sixth Circuit have not addressed whether the First Amendment would protect the press from compelled disclosure of published information. The only federal decisions upholding First Amendment protection from subpoenas were in civil contexts and applied to the unpublished identities of confidential sources. Southwell v. Southern Poverty Law Ctr, 949 F. Supp. 1303 (W.D. Mich. 1996); NLRB v. Midland Daily News, 151 F.3d 472 (6th Cir. 1998).
CompareG. Reporter's personal observations
Where the reporter personally witnessed the commission of a crime, it is unlikely that the federal courts within the Sixth Circuit would uphold the reporter's assertion of a First Amendment privilege. In In re Grand Jury Proceedings, 810 F.2d 580 (6th Cir. 1987), the Sixth Circuit refused to overturn the contempt conviction of a television reporter who had refused to comply with a grand jury subpoena seeking video outtakes of the reporter's interviews of street gang members. As a condition of taping, the reporter agreed not to broadcast or disclose to anyone the portion of the tape showing the faces of gang members, and promised to do future taping in the silhouette. The gang members threatened his safety if he aired the portion of the tape showing their faces.
The grand jury subpoenaed the outtakes to determine the identity of the killer of a police officer. An informant had identified the killer, but refused to testify. Several gang members told police that the killer was among those who were taped by the reporter. In rejecting the reporter's First Amendment argument, the Sixth Circuit opined that the First Amendment did not apply. However, the Court said that, even if the First Amendment privilege had applied, it would have been overcome given the facts of the case. The court stated that the government made "a clear and convincing showing that [the reporter] has information that is clearly relevant to a specific violation of criminal law, that the information is not available from alternative sources, and that the state has a compelling and overriding interest in obtaining the information."
In Grand Jury proceedings, the video tape for which the Court granted no First Amendment protection did not record the actual commission of a criminal act, but contained only information "clearly relevant to a specific violation of criminal law." Consequently, it is highly improbable that the Sixth Circuit would uphold First Amendment protection where the journalist resisting a subpoena in a criminal context actually witnessed a crime.
CompareH. Media as a party
Where a libel plaintiff seeking to prove that the defendant reporter published the alleged libel while entertaining serious doubts as to its truth (constitutional actual malice), federal courts within the Sixth Circuit have granted summary judgment to the reporter, while refusing the plaintiff's demand that the reporter reveal the identity of a confidential source. Schultz v. Reader's Digest Ass'n, 468 F. Supp. 551 (E.D. Mich. 1979); Southwell v. Southern Poverty Law Ctr., 949 F. Supp. 1303 (W.D. Mich. 1996).
In doing so, those courts stated that they would have compelled the reporters to disclose the identities of their confidential sources if the plaintiff had produced substantial evidence in support of constitutional actual malice [the entertaining by defendants of serious doubts as to truth] or otherwise made a concrete demonstration that the identity of the source would lead to persuasive evidence of actual malice.
In effect, those courts require a libel plaintiff to produce evidence that a confidential source's identity is centrally relevant to an important issue of law and fact in the case. That requirement squares with the usual relevance requirement in cases outside the Sixth Circuit in which courts have applied the First Amendment reporter's privilege where the press was not a litigant. It appears, however, that at least in libel suits against the press, the federal courts in the Sixth Circuit would not require a plaintiff who proves the central relevance of a source's identity also to exhaust other means of learning the identity before seeking it from a defendant journalist.
CompareI. Defamation actions
Federal courts within the Sixth Circuit have granted summary judgment to libel defendants while refusing to require those libel defendants to disclose the identities of the confidential sources who had supplied the information alleged by the plaintiff to be false and defamatory. Southwell v. Southern Poverty Law Ctr, 949 F. Supp. 1303 (W.D. Mich. 1996); Schultz v. Reader's Digest Ass'n, 468 F. Supp. 551 (E.D. Mich. 1979).
Those courts have acknowledged that they would require a libel defendant to reveal a confidential source's identity if the plaintiff had produced concrete evidence demonstrating the central relevance of the source's identity to a legal and factual issue in the case. Where those circumstances exist, those courts apparently would not require the libel plaintiff to try to exhaust other means of learning the identity of the source, a requirement often recognized in non-libel contexts.
CompareIV. Who is covered
CompareA. Statutory and case law definitions
Compare1. Traditional news gatherers
Comparea. Reporter
The First Amendment reporters' privilege has been applied to a nonprofit organization which published a periodic newsletter alleged to libel the plaintiff. Southwell v. Southern Poverty Law Ctr., 949 F.Supp. 1303 (W.D. Mich. 1996). Although the court declined to decide whether the First Amendment actually afforded a reporter's privilege , the court applied "public policy" in deciding that a magazine and freelance author did not have to reveal the identities of confidential sources to a plaintiff suing them for libel. Schultz v. Reader's Digest Ass'n, 468 F.Supp. 551) E.D. Mich. 1979).
The Sixth Circuit applied the First Amendment to bar enforcement of a civil subpoena directed to a newspaper's advertising dept. in pursuit of the identity of an advertiser who placed a "blind" ad. NLRB v. Midland Daily News, 151 F.3d 472 (6th Cir. 1998).
Even when a First Amendment privilege is not recognized, some courts have nonetheless protected journalists. A Sixth Circuit district court found that the reporters at issue did not have to disclose information from, or names of, confidential sources because the information sought could be obtained from other sources, the request was overly broad and burdensome, and the information may duplicate information gathered from other sources. In re Daimler Chrysler, 216 F.R.D. 395 (E.D. Mich. 2003).
Compareb. Editor
Although no case decided by federal courts in the Sixth Circuit addressed the issue, where the First Amendment applies, it would likely apply to an editor.
Comparec. News
No federal court in the Sixth Circuit has limited First Amendment protection only in contexts where the information was gathered in pursuit of news, and no federal court in the Sixth Circuit has defined "news."
The Sixth Circuit itself applied the First Amendment to bar enforcement of a civil subpoena seeking to require a newspaper to divulge the identity of an advertiser who placed a "blind ad"; consequently, it seems clear that First Amendment protection applies beyond the context of news.
Compared. Photo journalist
The Sixth Circuit denied First Amendment protection to a television journalist whose videotape outtakes showed the likeness of a murder suspect. In re Grand Jury Proceedings, 810 F.2d 580 (6th Cir. 1987). The reason for denying the journalist protection was not based on his status as , in essence, a photojournalist.
Comparee. News organization/medium
The federal courts in the Sixth Circuit have not defined the parameters of the scope of a reporter's privilege, insofar as the kind of person or organization which enjoys the privilege.
Compare2. Others, including non-traditional news gatherers
Federal courts within the Sixth Circuit have barred compelled disclosure of the identities of confidential sources of a nonprofit organization's newsletter, a freelance author, and a newspaper's advertising dept. Southwell v. Southern Poverty Law Ctr, 949 F. Supp. 1303 (W.D. Mich. 1996); Schultz v. Reader's Digest Ass'n, 468 F. Supp. 551 (E.D. Mich. 1979); NLRB v. Midland Daily News, 151 F.3d 472 (6th Cir. 1998).
A non-party professor and research scientist at the University of Michigan enjoyed no protection from a subpoena issued by a corporate defendant in a personal injury suit where the subpoena sought the scientist's unpublished work product generated during a study of motor vehicle crashes. Wright v. Jeep Corp., 547 F. Supp. 871 (E.D. Mich. 1982).
CompareB. Whose privilege is it?
The Sixth Circuit has found that Ohio shield law protection does not belong to the source of the information. Ventura v. Cincinnati Enquirer, 396 F.3d 784 (6th Cir. 2005).
CompareV. Procedures for issuing and contesting subpoenas
CompareA. What subpoena server must do
Compare1. Service of subpoena, time
A subpoena must be served on a member of the news media within a reasonable time prior to the commanded appearance; otherwise, the court under whose authority the subpoena was issued may quash the subpoena. Fed. R. Civ. P. 45(3)(A)(i).
Compare2. Deposit of security
No security deposit is required to procure testimony or materials pursuant to subpoena.
Compare3. Filing of affidavit
The subpoenaing party need not make any sworn statement for a subpoena to issue.
Compare4. Judicial approval
Neither a judge nor magistrate need to approve a subpoena before its issuance or service. A subpoena duces tecum may be issued by an attorney with no involvement by a court. Fed. R. Civ. P. 45(a)(3).
Compare5. Service of police or other administrative subpoenas
Issuance of administrative subpoenas by federal agencies is governed by the federal regulations for that agency.
CompareB. How to Quash
Compare1. Contact other party first
When attempting to avoid compliance with a subpoena, it is good practice to converse with the attorney responsible for issuing it to see if you can negotiate a limitation on the subpoena or be relieved of having to comply with the subpoena altogether.
Where a subpoena commands a person to produce documents for inspection or copying, that person may object to it. The objection must be in writing, and delivered to the person or attorney designated in the subpoena as being responsible for issuing it. The objection must be made within 14 days after receiving the subpoena. However, if the subpoena gives fewer than 14 days for compliance, then at any time before the time set by the subpoena for compliance. Fed. R. Civ. P. 45(c)(2)(B).
If the objection is made in writing, delivered to the appropriate person, and delivered on time, then the person on whose behalf the subpoena was issued and served has no right to inspect or copy the subpoenaed documents without a court order. Failure to follow the rules for the written objections gives the person responsible for the subpoena the right to move to compel compliance and to seek to hold the person to whom the subpoena is directed in contempt of court. Fed. R. Civ. P. 45(c)(2)(B), (e).
The safest course is to deliver a written objection in accordance with the provisions of Rule 45 even if negotiations with the person responsible for the subpoena are going well. The written objection has the legal effect of suspending the duty to comply with the subpoena until a court decides the matter.
Compare2. Filing an objection or a notice of intent
Where a subpoena commands a person to produce documents for inspection or copying, that person may object to it. The objection must be in writing, and delivered to the person or attorney designated in the subpoena as being responsible for serving it. The objection must be made within 14 days after receiving the subpoena. However, if the subpoena gives fewer than 14 days for compliance, then at any time before the time set by the subpoena for compliance. Fed. R. Civ. P. 45(c)(2)(B).
If the objection is made in writing, delivered to the appropriate person, and delivered on time, then the person on whose behalf the subpoena was issued and served has no right to inspect or copy the subpoenaed documents without a court order. The person responsible for issuing and serving the subpoena may file a motion with the court to compel compliance with the subpoena, or the person receiving the subpoena may move to quash or modify it.
Compare3. File a motion to quash
Comparea. Which court?
Every subpoena in federal court litigation identifies the name of the court under whose authority it was issued. Usually, that is the same federal court in which the litigation that spawned the subpoena is taking place, and where the trial in that litigation would be held. Where the subpoena commands compliance within the territorial district of the court where the litigation is underway, then a motion to quash should be filed with that court.
However, sometimes subpoenas command attendance for deposition at places outside the territorial district of the federal court in which the litigation is taking place. When that happens, the subpoena is supposed to identify a different federal court: the federal court in whose district the deposition is supposed to take place. Similarly, sometimes subpoenas command the production of document, and require the production to take place in a district other than the district in which the litigation is taking place. Again, the subpoena is supposed to identify the federal court in whose district the production of document is supposed to take place. Where the subpoena commands compliance within a federal district other than that in which the underlying litigation is underway, the motion to quash should be filed with the federal court whose district encompasses the location of the deposition or the commanded production of documents. See Fed.R.Civ. P. 45(a)(2), (3); Fed.R.Civ. P. 37(a)(1).
Compareb. Motion to compel
Where a subpoena commands a person to produce documents for inspection or copying, the subpoenaed person may object to it. The objection must be in writing, and delivered to the person or attorney designated in the subpoena as being responsible for issuing it. The objection must be made within 14 days after receiving the subpoena. However, if the subpoena gives fewer than 14 days for compliance, then at any time before the time set by the subpoena for compliance. Fed. R. Civ. P. 45(c)(2)(B).
If the objection is made in writing, delivered to the appropriate person, and delivered on time, then the person on whose behalf the subpoena was issued and served has no right to inspect or copy the subpoenaed documents without a court order. The person responsible for issuing and serving the subpoena may file a motion with the court to compel compliance with the subpoena. Fed. R. Civ. P. 45(c)(2)(B).
The person served with a subpoena need not go through the objection/motion to compel procedure. That person can move to quash or to modify the subpoena. Fed. R. Civ. P. 45(c)(3)(A). Although the Federal Rules of Civil Procedure do not specify a time deadline for moving to quash or to modify a subpoena, a good practice would be to file the motion within 14 days of receiving the subpoena, or if the deadline for compliance with the subpoena is fewer than 14 days, before the deadline.
In a reporters' privilege situation, do not wait for a motion to compel. The best practice is to deliver the written objection, and follow that with a motion to quash or modify [fitting at least one attempted negotiation in between].
Comparec. Timing
The Federal Rules of Civil Procedure do not specify time deadlines for moving to quash or modify a subpoena. Virtually always, the motion should be filed before the date and time designated on the subpoena for compliance, and within 14 days of the compliance date if the subpoena gives the movant at least 14 days in which to comply.
Compared. Language
A motion to quash a subpoena issued under the authority of a federal court should show the name of the court to which the motion is directed, the name of the case, the case no. assigned to the case, and a title for the motion. For example:
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
Parson Brown, Plaintiff,
v.
Barn Door Co., Defendant.
Case No. CV 007 Motion of nonparty Paul Utzer to quash subpoena
The motion should state in a few sentences what the movant nonparty wants [to quash the subpoena], the Rule of Civil Procedure being invoked [usually Rule 45], when the subpoena was served, the deadline stated on the subpoena for compliance, that the movant nonparty is a journalist, and the essential reason for quashing the subpoena [First Amendment, reporter's privilege]. For example:
"Nonparty Paul Utzer, a journalist, hereby moves pursuant to Rule 45 of the Federal Rules of Civil Procedure to quash a subpoena served upon him on June 1, 2002, commanding compliance on July 1, 2002. The grounds for this motion are that the subpoena seeks movant to produce unpublished information gathered during the course of his duties as a journalist which, if produced, would disclose the name of a news source to whom movant has promised confidentiality. As explained more fully in the attached memorandum, which movant incorporates here, the First Amendment bars compelled disclosure of the confidential sources of the press."
The bottom of the motion should show the signature of the attorney for the movant, or if the movant is not represented by an attorney, the movant should sign the motion.
Typically, a motion would be accompanied by an attached memorandum that sets forth case law and argument that supports the ground for the motion.
Comparee. Additional material
Attached to a motion to quash should be (1) a memorandum arguing the law and (2) a copy of the subpoena with its attachments. Attaching other materials is not recommended.
Compare4. In camera review
Comparea. Necessity
Federal law does not require federal courts to conduct an in camera inspection of subpoenaed materials claimed to be privileged. Where information subject to a subpoena is withheld because it is claimed to be privileged (such as the reporter's privilege), the reporter should assert the First Amendment reporter's privilege expressly in any written objection delivered to the litigant or attorney responsible for the subpoena and in any papers filed with the court. Depending on the nature of the contested materials, the reporter may be required to put together what is called a "privilege log." The privilege log is supposed to describe the nature of the assertedly privileged information in such a way as to "enable the demanding party to contest the claim" of privilege. The privilege log's descriptions would be brief, but include facts that are relevant to the claim of privilege, such as whether confidentiality was promised, or whether the record was generated by the journalist pursuant to his newsgathering duties. See Fed.R.Civ. P. 45(d)(2).
Federal law does not preclude the subpoenaed person from asking for an in camera inspection of the contested materials by the court. If the court orders an in camera inspection, and the journalist does not desire one (for example, to protect the identity of a confidential source), the journalist should object.
Compareb. Consequences of consent
If a journalist consents to an in camera review, the court requires disclosure, and the journalist appeals, there is no automatic stay of the court's ruling. The journalist would have to move the court to stay its ruling pending appeal, and if denied, would have to seek an order from the Sixth Circuit court of appeals staying the district court's ruling.
Comparec. Consequences of refusing
If a reporter or publisher does not consent to in camera review the consequences are potential contempt of court with consequent punishment.
Compare5. Briefing schedule
Typically the movant files a motion to quash the subpoena and the person issuing the subpoena has ten days to oppose the motion.
Compare6. Amicus briefs
United States District Courts within the Sixth Circuit will sometimes accept amicus briefs. The Sixth Circuit itself usually accepts them. Amicus briefs submitted to District Courts opposing reporter' subpoenas are rare.
CompareVI. Substantive law on contesting subpoenas
CompareA. Burden, standard of proof
To overcome a journalist's claim of First Amendment privilege, the subpoenaing party must produce "credible evidence," "compelling evidence," a "concrete demonstration" that the subpoenaed materials will be centrally relevant to an important legal issue in the case and that the information is not otherwise available from another source. Southwell v. Southern Poverty Law Ctr., 949 F.Supp. 1303 (W.D. Mich. 1996).
CompareB. Elements
At least where the subpoena occurs in a civil setting, the subpoenaing party would have to establish all of the following: (1) that the requested information is centrally relevant to an important legal issue in the underlying litigation, and (2) that the subpoenaing party has exhausted all other means of obtaining the information. Also, the court must consider the potential harm that may be caused to a source or to the First Amendment interest in news gathering generally if the court requires compliance with the subpoena. Southwell v. Southern Poverty Law Ctr, 949 F. Supp. 1303 (W.D. Mich. 1996).
In the context of commercial speech, where a newspaper sought to avoid disclosure of the identity of an advertiser who placed a "blind" ad, the Sixth Circuit ruled that a federal agency's failure to exhaust other means of investigation before subpoenaing the newspaper defeated the agency's attempt to overcome the newspaper's invocation of First Amendment protection from the subpoena. NLRB v. Midland Daily News, 151 F.3d 472 (6th Cir. 1998).
In the context of a grand jury subpoenaing video outtakes that likely would identify a murder suspect, the Sixth Circuit emphasized in nonbinding dictum that no First Amendment protection from the subpoena exists. However, the court listed the elements other courts have prescribed for overcoming the First Amendment, and ruled that the evidence showed that the government had satisfied those elements. The elements listed by the Sixth Circuit were "a clear and convincing showing that [the journalist] has information that is clearly relevant to a specific violation of criminal law, that the information is not available from alternative sources, and that the state has a compelling and overriding interest in obtaining the information." In re Grand Jury Proceedings, 810 F.2d 580 (6th Cir. 1987).
More recently, Sixth Circuit district courts have applied a four part test derived from In re Grand Jury Proceedings. Where 1) the reporter is not being harassed, 2) the information is being sought in good faith, 3) the information has more than a remote or tenuous relationship with the case, and 4) there is a legitimate need for disclosure, the reporter can't block compelled disclosure of information. Lentz v. City of Cleveland, 410 F. Supp. 2d 673 (N.D. Ohio 2006); Hade v. City of Fremont, 233 F. Supp. 2d 884 (N.D. Ohio 2002).
A Sixth Circuit district court found that the reporters did not have to disclose information from, or names of, confidential sources because the information sought could be obtained from other sources, the request was overly broad and burdensome, and the information may duplicate sinformation gathered from other sources. In re Daimler Chrysler, 216 F.R.D. 395 (E.D. Mich. 2003).
Compare1. Relevance of material to case at bar
To overcome the First Amendment reporter's privilege, the subpoenaed information must go to "the heart" of the case, in other words, it must be centrally relevant to an important legal and factual issue. Southwell v. Southern Poverty Law Ctr., 949 F.Supp. 1303 (W.D. Mich. 1996); see In re Grand Jury Proceedings, 810 F.2d 580 (6th Cir. 1987).
Compare2. Material unavailable from other sources
To overcome the First Amend reporter's privilege, the subpoenaing party must demonstrate that it has tried other sources without success. NLRB v. Midland Daily News, 151 F.3d 472 (6th Cir. 1998); Southwell v. Southern Poverty Law Ctr., 949 F.Supp. 1303 (W.D. Mich. 1996); In re Daimler Chrysler, 216 F.R.D. 395 (E.D. Mich. 2003); see In re Grand Jury Proceedings, 810 F.2d 580 (6th Cir. 1987).
The courts in the Sixth Circuit have not elaborated on this requirement. In Midland Daily News, the Sixth Circuit ruled that the NLRB could not enforce an administrative subpoena against a newspaper where the NLRB had not attempted any other form of investigation. In Grand Jury Proceedings, the Sixth Circuit ruled that a police informant's refusal to identify a murder suspect in court entitled a grand jury to subpoena a television journalists' outtakes through which police could pinpoint the suspect's likeness and identity.
Comparea. How exhaustive must search be?
The federal courts have not elaborated on the extent to which a subpoenaing party must exhaust alternative from other sources. Where the NLRB initiated a civil investigation of a claim of unfair labor charge against a business by subpoenaing a newspaper's advertising dept. to see if the business was responsible for a "blind" newspaper ad, the Sixth Circuit ruled that the NLRB could not overcome the newspaper's First Amendment protection because the NLRB had not tried other investigative methods first. NLRB v. Midland Daily News, 151 F.3d 472 (6th Cir. 1998).
Where a grand jury could have subpoenaed street gang members to identify the murderer of a police officer, but where a police informant refused to identify the murderer in court, the Sixth Circuit ruled that the First Amendment did not protect a television journalist who sought to avoid a grand jury subpoena of his outtakes. The outtakes allegedly showed the face of the accused murderer. In re Grand Jury Proceedings, 810 F.2d 580 (6th Cir. 1987).
Compareb. What proof of search does a subpoenaing party need to make?
The federal courts in the Sixth Circuit have not stated what the subpoenaing party must do to demonstrate that it has already conducted an unsuccessful search for the subpoenaed information before subpoenaing the press.
Comparec. Source is an eyewitness to a crime
The federal courts in the Sixth Circuit have not addressed a situation where a journalist or news organization witnesses the commission of a crime. However, the Sixth Circuit ruled that videotapes outtakes from which police could identify a murderer, whose identity a police informant refused to confirm through court testimony, were clearly relevant to a specific violation of law and not available from other sources. Hence, the court found no First Amendment protection for the television journalist who recorded the outtakes. In re Grand Jury Proceedings, 810 F.2d 580 (6th Cir. 1987).
Compare3. Balancing of interests
The elements required for overcoming First Amendment protection represent a judicial balancing of interests. Thus, the court considers the degree to which the subpoenaed information is relevant, the efforts made to obtain the information without disrupting the press, and the potential harm likely to result if the press must comply with the subpoena. Southwell v. Southern Poverty Law Ctr., 949 F.Supp. 1303 (W.D. Mich. 1996).
Sixth Circuit district courts have also applied a four part test derived from In re Grand Jury Proceedings. Where 1) the reporter is not being harassed, 2) the information is being sought in good faith, 3) the information has more than a remote or tenuous relationship with the case, and 4) there is a legitimate need for disclosure, the reporter can't block compelled disclosure of information. Lentz v. City of Cleveland, 410 F. Supp. 2d 673 (N.D. Ohio 2006); Hade v. City of Fremont, 233 F. Supp. 2d 884 (N.D. Ohio 2002).
A Sixth Circuit district court found that the reporters did not have to disclose information from, or names of, confidential sources because the information sought could be obtained from other sources, the request was overly broad and burdensome, and the information may duplicate of information gathered from other sources. In re Daimler Chrysler, 216 F.R.D. 395 (E.D. Mich. 2003).
Compare4. Subpoena not overbroad or unduly burdensome
The court is required by the Fed. R. Civ. P. 45(c)(1) in civil proceedings to determine whether the party issuing a subpoena is imposing an undue burden or expense on the person or entity subject to the subpoena. Similarly, Fed. R. Crim. P. 17(c) allows the court in a criminal proceeding to quash a subpoena duces tecum that it determines to be unreasonable or oppressive.
Where information requested in a subpoena is unduly burdensome, disclosure of the information may be denied. In re Daimler Chrysler, 216 F.R.D. 395 (E.D. Mich. 2003).
Compare5. Threat to human life
The court is required to weigh the potential harm, such as ultimate death or bodily injury that might occur as a result of the disclosure of a source's identity. Southwell v. Southern Poverty Law Center, 949 F. Supp. 1303 (1996).
Compare6. Material is not cumulative
Where information requested in a subpoena may duplicate with other information gathered elsewhere, disclosure of the information may be denied. In re Daimler Chrysler, 216 F.R.D. 395 (E.D. Mich. 2003).
Compare7. Civil/criminal rules of procedure
If a prompt motion is filed before the time specified in the subpoena for compliance, the court will quash or modify the subpoena if it finds the demands of the subpoena to be unreasonable or oppressive. Fed. R. Civ. P. 45(c)(1); Fed. R. Crim. P. 17(c).
Compare8. Other elements
The federal courts in the Sixth Circuit have identified no additional elements related to First Amendment protection of the press from subpoenas.
CompareC. Waiver or limits to testimony
Compare1. Is the privilege waivable?
There is no statutory or case law addressing this issue. In In re Grand Jury Proceedings, 810 F.2d 580 (6th Cir. 1987), the Sixth Circuit suggested, but did not decide, that a journalist's interview of confidential sources in plain view in a public place might defeat the journalist's asserted need to maintain the confidentiality of the sources.
Failing to expressly assert First Amendment protection when formally objecting to a subpoena may be a waiver. See Fed. R. Civ. P. 45(d).
Compare2. Elements of waiver
Comparea. Disclosure of confidential source's name
There is no statutory or case law addressing this issue.
Compareb. Disclosure of non-confidential source's name
There is no statutory or case law addressing this issue.
Comparec. Partial disclosure of information
There is no statutory or case law addressing this issue.
Compared. Other elements
There is no statutory or case law addressing this issue.
Compare3. Agreement to partially testify act as waiver?
There is no statutory or case law addressing this issue.
CompareVII. What constitutes compliance?
Where a subpoena commands the production of documents, but does not command that an individual appear, e.g. for deposition, in person, then the individual need not appear so long as the documents are produced at the locale and time commanded by the subpoena. Fed. R. Civ. P. 45(c)(2)(A).
Where a subpoena commands an individual to appear at a specified place and time, the individual must appear at that place and time. Fed R. Civ. P. 45(a).
Documents may be produced in response to a subpoena as they are kept in the usual course of business, or organized and labeled to correspond with the categories listed in the subpoena. Fed. R. Civ. P. 45(d)(1).
When claiming that the content of subpoenaed records are privileged, the subpoenaed person must assert the privilege explicitly and describe the assertedly privileged content sufficiently to enable the party responsible for the subpoena to contest the claim of privilege. Fed. R. Civ. P. 45(d)(2).
CompareA. Newspaper articles
Newspapers are self-authenticating. Fed. R. Evid. 902(6). Therefore, a journalist should not be required to testify in court as to whether a particular article actually appeared in a newspaper. If the court nevertheless requires authenticating testimony, an administrative person should be qualified to give the testimony.
CompareB. Broadcast materials
Where the subpoenaing party seeks only confirmation that a videotape or audiotape accurately depicts a broadcast, any qualified administrative person should be able to substitute for a subpoenaed journalist; although substitution should be worked out in advance.
CompareC. Testimony vs. affidavits
Where the accuracy of the substance of a publication is at issue, an affidavit attesting to its accuracy is not admissible as evidence. However, as a practical matter, the attorney issuing the subpoena often will accept an affidavit rather than engage in a protracted legal battle over an asserted First Amendment privilege or some other form of litigated resistance.
CompareD. Non-compliance remedies
If a reporter fails to comply with a subpoena and has no adequate justification, it may be deemed a contempt of the court from which the subpoena was issued. Fed. R. Civ. P. 45(e). The advice of an attorney that a subpoena does not need to be obeyed is not a sufficient excuse for disobedience. The reporter may also be confined until he complies with the subpoena, or until the expiration of the grand jury, if he is involved in a grand jury proceeding. See In re Grand Jury Proceedings, 810 F.2d 580, 583 (6th Cir. 1987).
Compare1. Civil contempt
Comparea. Fines
The court derives its civil contempt statute from the Recalcitrant Witness statute codified in 28 U.S.C.S. § 1826(a) (2002). The statute provides that whenever a witness in any proceeding before or ancillary to any court or grand jury of the United States refuses without just cause shown to comply with an order of the court to testify, the court may order his confinement until he is willing to give his testimony, or provide such information.
Compareb. Jail
Jail sentences are usually limited to such time that the reporter has complied with the subpoena, or in a grand jury proceeding until the expiration of the term of the grand jury. See In re Grand Jury Proceedings, 810 F.2d 580, 583 (6th Cir. 1987) (reporter confined until he agreed to release video outtakes.)
Compare2. Criminal contempt
No federal courts in the Sixth Circuit have imposed criminal contempt upon journalists who refused to comply with subpoenas. In general, a defiant flouting of a court order in the presence of the court may lead to criminal contempt.
Compare3. Other remedies
Federal courts in the Sixth Circuit have not recognized any remedies for refusal to comply with a subpoena other than contempt.
CompareVIII. Appealing
CompareA. Timing
Compare1. Interlocutory appeals
Fed. R. Civ. P. 74(a) provides that, within a certain time frame, a party may file an appeal of the magistrate judge's decision. 12 Charles Alan Wright & Arthur R. Miller, Federal Practice And Procedure § 3074, 426 (2d ed. 1997). Generally, the reporter should file a notice of a appeal within 30 days of judgment from a magistrate judge's decision. Id. If, however, the United States or an officer or agency of the United States is a party, the notice of appeal may be filed within 60 days of the magistrate judge's entry of judgment. Id. Other parties may also file a notice of appeal within 14 days once a timely motion of is filed by any party. Id. It should be noted that the filing of four specific types of motions will stop the running of time limits for the filing of a notice of appeal under Rule 74(a). Id. at 427. These motions include a motion for judgment under Rule 50(b), a motion to amend or make additional findings of fact under Rules 52(b), a motion under Rule 59(e) to alter or amend judgment, and a motion for a new trial under Rule 59(a). Id. at 432.
Where a court orders a journalist to disclose the identity of a confidential source, the order should be appealed immediately, despite the general refusal of appellate discovery orders. That is because compliance with the order by disclosing the source's identity would have the effect of preventing an appellate court from protecting the asserted need for confidentiality. Alternatively, the subpoenaed reporter may risk disobeying the subpoena and then appeal the resulting contempt order. Id. If the reporter, however, is found guilty of criminal contempt for failing to comply with the subpoena, the contempt proceeding is then considered independent of the underlying action. Id. at 88. Therefore, the order punishing the contempt is a final judgment and is appealable. Id.
Alternatively, if the failure to obey the subpoena is treated as a civil contempt, the order that results is theoretically not appealable since it is part of an ongoing civil case and is not final. Id. One exception to these limitations is, for example, when a subpoena is issued in one district for discovery regarding a case pending in a different district. Id. The order of the district court that issued the subpoena to quash the subpoena is considered final and appealable. Id. at 89. If the motion to quash the subpoena is denied there is no exception granted.
Compare2. Expedited appeals
There is no provision in federal law for expedited appellate review of the merits of a court order requiring a reporter to comply with a subpoena. The best way to get expedited relief is to seek a stay of the court's disclosure order pending resolution of the merits of an appeal.
CompareB. Procedure
Compare1. To whom is the appeal made?
When a subpoena is levied by a magistrate judge the reporter, within 10 days after being served with a copy of the magistrate judge's order, may file and serve objections to the order. Fed. R. Civ. P. 72(a). The district judge to whom the case is assigned will then consider the objections and respond to any portion of the magistrate judge's order that is clearly erroneous or contrary to the law. Id. An appeal from a judgment by a magistrate judge in a civil case is addressed in the same way as an appeal from any other district court judgment. Fed. R. App. P. 3. When parties consent to trial before a magistrate judge, appeal lies directly, and as a matter of right, to the court of appeals. Id.
Generally, in a civil case after the judgment or order is entered at the district court level a notice of appeal must be filed with the district clerk no more than 30 days later. Fed. R. Civ. P. 4(1)(A). At the time of filing in a criminal case, where the reporter is the defendant, the notice of appeal must be filed in the district court within 10 days after the entry of the judgment or order being appealed, or the filing of the government's notice of appeal. Id.
Pursuant to Fed. R. App. P. 3, at the time of filing a notice of appeal the appellant must furnish the clerk with enough copies of the notice to enable the clerk to serve notice to all parties required by the statute. An appellant's failure to make a timely notice of appeal does not affect the validity of the appeal, but is grounds for the circuit court to dismiss the appeal. Fed. R. App. P. 3.
Compare2. Stays pending appeal
A stay may be sought even before a notice of appeal is filed. David G. Knibb, Federal Court of Appeals Manual § 18.2 (2d ed. 1990). The district court, however, does not lose jurisdiction to grant a stay after the appeal is taken. Id. If the district court fails to act within a reasonable time, the appellant may apply to the court of appeals for a stay pending appeal. Id.
The factors that govern the issuance of a stay pending are (i) whether the applicant has successfully shown that he will likely succeed on the merits; (ii)whether the applicant will be permanently injured (prejudiced) without the stay; (iii) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (iv) where the public interest lies. Hilton v. Braunskill, 481 U.S. 770, 776, 95 L. Ed. 2d 724, 107 S. Ct. 2113 (1987); Michigan. Coalition of Radioactive Users, Inc. v. Griepentrog, 945 F.2d 150, 153 (6th Cir. 1991).
No case or statute addresses the precise issue of obtaining a stay in the context of a reporter's privilege issue.
Compare3. Nature of appeal
Mandamus Action
A party seeking a writ of mandamus must file a petition with the circuit clerk along with proof of service on all parties to the proceeding in the trial court. Fed. R. App. P. 21. A copy of the petition must also be given to the trial court judge. Id. All parties to the proceeding in the trial court, other than the petitioner, now become respondents for all purposes. Id.
The petition must be titled "In re [name of petitioner]," and must also state the kind of relief sought along with the issues presented. Id. The facts necessary to understand the issue presented by the petition and the reasons why the court should issue the writ should be included in the petition. Id. The petition must also include a copy of any order or opinion or parts of the record that my be essential to understanding the matters presented in the petition. Id.
Because an interlocutory appeal most likely would be available in a reporter's privilege situation, federal mandamus would most likely be unavailable. When unsure, do both: appeal and petition for mandamus.
Appeal By Right
In the Sixth Circuit, an appeal as of right is taken in accordance with the Federal Rules of Appellate Procedure. An appeal from a judgment by a magistrate judge in a civil case is taken in the same way as an appeal from another district court judgment. Id. An appeal as of right from a district court to the Sixth Circuit Court of Appeals may be taken only by filing a notice of appeal with the district court within. Fed. R. App. P. 3. A mandamus action alternatively requires that a petition be filed with the circuit court. Fed. R. App. P. 21. Failure on the part of the party seeking the appeal to file a timely notice of appeal does not affect the validity of the appeal, but is grounds for the circuit court to dismiss the appeal. Id.
The district clerk must serve notice of the filing of a notice of appeal by mailing a copy to each party's counsel of record, except for the appellant's. At the time of filing the notice of appeal, the appellant must furnish the clerk with sufficient copies of the notice to enable the clerk to serve notice to all parties required by statute. Id. In the mandamus action the party petitioning the writ is responsible for furnishing the circuit clerk with proof of service of the petition on all parties to the proceeding in the trial court. Fed. R. App. P. 21.
When the defendant in a criminal case appeals, the district clerk must also serve a copy of the notice of appeal on the defendant. Fed. R. App. P. 3. The clerk is required to promptly send a copy of the notice of appeal and of the docket entries to the clerk of the court of appeals named on the notice. Id. Finally, upon filing a notice of appeal, the appellant must pay the district court all fees. Id.
Compare4. Standard of review
Because the predominant issue in reporter's privilege situations will be pure issues of constitutional law, or issues of whether the subpoenaing party has adduced sufficient evidence to satisfy constitutional requirements, the Sixth Circuit is unlikely to defer at all to a district court's order that a journalist disclose a confidential source or other unpublished work product. The Sixth Circuit is likely to review such orders de novo (without deference). However, the Sixth Circuit has not explicitly addressed its standard for review in that context.
Compare5. Addressing mootness questions
There is no statute or case law that addresses the mootness issue in the context of an assertion of reporter's privilege.
Compare6. Relief
On appeal from a contempt order or a disclosure order, a reporter who has refused to comply with a subpoena should ask the Sixth Circuit to reverse and vacate the contempt judgment or disclosure order.
Whether the Sixth Circuit. would remand to the district court, rather than vacate the orders at issue, is not predictable.
CompareIX. Other issues
CompareA. Newsroom searches
There is no statutory or case law addressing this issue.
CompareB. Separation orders
There is no statutory or case law addressing this issue.
CompareC. Third-party subpoenas
There is no statutory or case law addressing this issue.
CompareD. The source's rights and interests
There is no statutory or case law addressing a situation where the courts allowed sources to intervene anonymously to halt disclosure of their identities. Similarly, there is no reported federal case in the Sixth Circuit where a reporter's source sued the reporter for disclosing the source's identity.
Compare