Alabama

Reporter's Privilege Compendium

Mary Ellen Roy
roym@phelps.com
Dan Zimmerman
dan.zimmerman@phelps.com
Ashley Heilprin
Ashley.Heilprin@phelps.com
Phelps Dunbar LLP
365 Canal Street, Suite 2000
New Orleans, LA 70130-3245
(504) 566-1311

Evans Bailey
ebailey@rushtonstakely.com
Rushton, Stakely, Johnston & Garrett, P.A.
184 Commerce Street
Post Office Box 270 (36101-0270)
Montgomery, AL
P (334) 206-3234
F (334) 481-0031

Special thanks to the original guide authors, Gilbert E. Johnston, Jr., James P. Pewitt, and Alan D. Mathis of Johnston Barton Proctor & Rose LLP, Birmingham, Alabama.

Last updated September 7, 2021

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I. Introduction: History & Background

In Alabama, a reporter has an absolute privilege to refrain from disclosing sources of information obtained in the newsgathering process under Alabama's shield statute, codified at Ala. Code § 12-21-142, provided that the information obtained from the source has been published, broadcast, or televised. Alabama also recognizes a qualified reporter's privilege under the First Amendment to the United States Constitution. Although the case law addressing the shield statute and the qualified privilege under the First Amendment is not extensive, Alabama courts have demonstrated a willingness to uphold the privilege.

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II. Authority for and source of the right

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A. Shield law statute

Originally enacted in 1935, Alabama's shield statute provides an absolute privilege to persons engaged in a newsgathering capacity on behalf of a newspaper, radio station, or a television station. The shield statute prohibits those persons from being compelled to disclose "sources" of information provided that the information was obtained or procured by the reporter and published in a newspaper, broadcast on a broadcasting station, or televised by a television station. Specifically, the statute provides as follows:

No person engaged in, connected with or employed on any newspaper, radio broadcasting station or television station, while engaged in a news-gathering capacity, shall be compelled to disclose in any legal proceeding or trial, before any court or before a grand jury of any court, before the presiding officer of any tribunal or his agent or agents or before any committee of the legislature or elsewhere the sources of any information procured or obtained by him and published in the newspaper, broadcast by any broadcasting station, or televised by any television station on which he is engaged, connected with or employed.

Ala. Code § 12-21-142. As originally enacted, the privilege extended only to newspaper employees, but as the forms of news media expanded to include radio and television broadcasting, the privilege was extended to reporters working in those media as well.

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B. State constitutional provision

Alabama has not adopted a reporter's privilege based on the Alabama Constitution, but Article I, Section 4 provides a basis for the argument that the Alabama Constitution provides such a privilege. The preamble and Article I, Section 4 state:

That the great, general, and essential principles of liberty and free government may be recognized and established, we declare:

That no law shall ever be passed to curtail or restrain the liberty of speech or of the press; and any person may speak, write, and publish his sentiments on all subjects being responsible for the abuse of that liberty.

ALA. CONST. of 1901, art. I, § 4.

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C. Federal constitutional provision

Alabama courts recognize a qualified reporter's privilege under the First Amendment to the United States Constitution; however, there is not a significant amount of case law that discusses the scope of the privilege. When considering whether the qualified privilege protects a newspaper reporter's unpublished testimony and documents, an Alabama court held that the following three-part test must be satisfied: 1) The reporter must have information highly relevant to a claim or defense in the underlying litigation; 2) There must be a compelling need for disclosure sufficient to override the First Amendment privilege; and 3) The party seeking the information must have unsuccessfully attempted to obtain the information from other sources less chilling of First Amendment freedoms. Norandal USA, Inc. v. Local Union No. 7468, No.: CV-86-136, 13 Med. L. Rptr. 2167 (Jackson County, Ala. Cir. Ct., Sept. 11, 1986). At least one court in another jurisdiction has also acknowledged that Alabama law provides a qualified reporter's privilege under the First Amendment to the United States Constitution. See In re American General Life & Accident Ins. Co., No.: 107784/96, 26 Med. L. Rptr. 1606 (Bronx County, N.Y. Sup. Ct., Jan. 14, 1996).

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D. Other sources

There are no other sources of a reporter's privilege in Alabama, but as in any case, a court may quash a subpoena on the grounds that the subpoena is unduly burdensome, ALA. R. CIV. P. 45 (c)(3)(A)(iv), or unreasonable, oppressive, or unlawful. ALA. R. CRIM. P. 17.3 (c). See Williams v. State, 489 So.2d 4, 8 (Ala. Crim. App. 1986) (holding that the trial court properly granted a motion to quash a subpoena duces tecum because it was unduly burdensome and the newspaper articles sought were available through other means.)

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III. Scope of protection

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A. Generally

The scope of the reporter's privilege in Alabama has been interpreted broadly. For example, in Brothers v. Brothers, No.: DR-86-200107, 16 Med. L. Rptr. 1031 (DR-86-200107, Marshall County, Ala., Cir. Ct., Jan. 9, 1989) the court applied Alabama's shield statute, which protects "sources," to quash a subpoena that sought all of a reporter's documents, notes and materials relating to an interview she had conducted that had been broadcast on television. In Ex parte Sparrow, 14 F.R.D. 351 (N.D. Ala. 1953), the court applied the shield statute to confidential sources of information, but did not limit the application of the statute to confidential sources, stating that the statute "clearly privileges" a reporter’s "sources of information." Id. at 353. Other courts have, however, indicated that "sources" under the shield statute may mean only confidential sources of in-formation. Pinkard v. Johnson, 118 F.R.D. 517 (M.D. Ala. 1987)(stating that although court was not bound to follow Alabama law, the court would not ignore Alabama's policy of giving protection to confidential "sources of information" obtained by reporters); Norandal USA, Inc. v. Local Union No. 7468, No.: CV-86-136, 13 Med. L. Rptr. 2167 (Jackson County, Ala. Cir. Ct., Sept. 11, 1986)(stating that Alabama's shield statute governs "confidential sources"). In those cases, it is unclear whether the court was using "confidential" to mean that the source was confidential because the reporter had not disclosed the source, thereby waiving the privilege, or whether the source was confidential because the source provided information to the reporter with the understanding that his or her identity would not be disclosed by the reporter. Arguably, in Pinkard, the court used "confidential" to mean the former - that sources are confidential and privileged only if the reporter has not previously disclosed the identity of the source. Nevertheless, the shield statute, by its terms, does not require that a source be confidential in order for the privilege provided by the statute to be available. Ala. Code § 12-21-142.

With respect to the First Amendment privilege, the privilege applies to materials other than "confidential sources." Norandal USA, Inc. v. Local Union No. 7468, No.: CV-86-136, 13 Med. L. Rptr. 2167 (Jackson County, Ala. Cir. Ct., Sept. 11, 1986).

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B. Absolute or qualified privilege

The privilege provided by Alabama's shield statute, Ala. Code § 12-21-142, appears to be absolute. In State v. Powers, No.: CC-03-593-JMH, 34 Med. L. Rptr. 1062, 1063 (Colbert County, Ala. Cir. Ct., May 28, 2004), the court granted a reporter’s motion to quash a subpoena, holding that the Alabama shield statute "absolutely protects news reporters from disclosing any source of information." Similarly, when deciding whether to compel a reporter to answer questions that would require him to disclose a source of information, a federal court sitting in the state recognized the absolute nature of the privilege afforded by the statute. Ex parte Sparrow, 14 F.R.D. 351 (N.D. Ala. 1953). Although the federal court was not bound to apply the statute, the court stated that "it would not be justified in ignoring such a clear and unequivocal pronouncement of the public policy of the state in which it sits, merely to reach out and apply a rule against the asserted privilege established in a non-federal jurisdiction." Id. at 353. The Eleventh Circuit has also indicated that the privilege provided by the Alabama shield statute is absolute. See Price v. Time, Inc., 416 F.3d 1327, 1335 (11th Cir. 2005) (ruling that Alabama shield statute did not apply but stating that statute "bestows an absolute privilege").

With respect to the reporter's privilege under the First Amendment, the privilege is qualified, and to overcome the privilege, the subpoenaing party must meet the following test: 1) The reporter must have information highly relevant to a claim or a defense; 2) There must be a compelling need for disclosure sufficient to override the First Amendment privilege; and 3) The party seeking the information must have unsuccessfully attempted to obtain it from other sources less chilling of First Amendment freedoms. Norandal USA, Inc. v. Local Union No. 7468, No.: CV-86-136, 13 Med. L. Rptr. 2167 (Jackson County, Ala. Cir. Ct., Sept. 11, 1986).

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C. Type of case

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1. Civil

There is no statutory or reported case law in Alabama that addresses the issue of whether the reporter's privilege is applied differently in civil cases than in criminal cases, but a federal court sitting in the state has cited the principal that, in civil cases, the public interest in nondisclosure of journalists' news sources will often be weightier than the private interest in compelled disclosure. Pinkard v. Johnson, 118 F.R.D. 517 (M.D. Ala. 1987).

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2. Criminal

There is no statutory or reported case law in Alabama that addresses the issue of whether the reporter's privilege is applied differently in criminal cases than in civil cases, but a federal court sitting in the state has cited the principal that, in criminal cases, the courts are more inclined to rule in favor of disclosure. Pinkard v. Johnson, 118 F.R.D. 517 (M.D. Ala. 1987).

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3. Grand jury

There is no statutory or case law in Alabama that addresses the standards for asserting the reporter's privilege to overcome a grand jury subpoena.

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D. Information and/or identity of source

Alabama's shield statute, Ala. Code § 12-21-142, specifically protects "sources," which has been interpreted to include the identity of a source as well as a reporter's documents, notes and other materials related to an interview. Ex parte Sparrow, 14 F.R.D. 351 (N.D. Ala. 1953)(holding that Alabama's shield statute protected the identities of sources who had given information in confidence); Brothers v. Brothers, No.: DR-86-200107, 16 Med. L. Rptr. 1031 (Marshall County, Ala. Cir. Ct., Jan. 9, 1989)(holding that a reporter's documents, notes, materials, and even the location of the interview were privileged under Alabama's shield statute).

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E. Confidential and/or nonconfidential information

With respect to the reporter's privilege provided by Alabama's shield statute, Alabama courts have not specifically distinguished confidential information from non-confidential information when analyzing the reporter's privilege, but one state court has suggested that the shield statute applies to "confidential sources." Norandal USA, Inc. v. Local Union No. 7468, No.: CV-86-136, 13 Med. L. Rptr. 2167 (Jackson County, Ala. Cir. Ct., Sept. 11, 1986). A federal court sitting in the state indicated in dicta that the statute applies only to confidential sources. Pinkard v. Johnson, 118 F.R.D. 517 (M.D. Ala. 1987). In Pinkard, it is unclear whether the court was using "confidential" to mean that the source was confidential because the reporter had not disclosed the source, thereby waiving the privilege, or whether the source was confidential because the source provided information to the reporter with the understanding that his or her identity would not be disclosed by the reporter. Arguably, in Pinkard, the court used "confidential" to mean the former - that sources are confidential and privileged only if the reporter has not previously disclosed the identity of the source. The express terms of Alabama's shield statute, however, do not require that a source be confidential in order for the privilege provided by the statute to be available. The privilege provided by the First Amendment to the United States Constitution applies to materials other than confidential sources. Norandal USA, Inc. v. Local Union No. 7468, No.: CV-86-136, 13 Med. L. Rptr. 2167 (Jackson County, Ala. Cir. Ct., Sept. 11, 1986).

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F. Published and/or non-published material

Alabama's shield statute, Ala. Code § 12-21-142, specifically states that the privilege applies to "sources of any information procured or obtained by [the reporter] and published in the newspaper, broadcast by an broadcasting station, or televised by any television station . . . ." Ala. Code § 12-21-142 (emphasis added). In Brothers v. Brothers, No.: DR-86-200107, 16 Med. L. Rptr. 1031 (Marshall County, Ala. Cir. Ct., Jan. 9, 1989), the court applied the statute to protect a reporter’s documents, notes and materials relating to an interview she conducted that had been broadcast on television.

The privilege under the First Amendment extends to non-published information acquired in the normal newsgathering process. Norandal USA, Inc. v. Local Union No. 7468, No.: CV-86-136, 13 Med. L. Rptr. 2167 (Jackson County, Ala. Cir. Ct., Sept. 11, 1986).

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G. Reporter's personal observations

Events that reporters witness as ordinary citizens are not privileged under Alabama law. Brothers v. Brothers, No.: DR-86-200107, 16 Med. L. Rptr. 1031 (Marshall County, Ala. Cir. Ct., Jan. 9, 1989). General observations made by a reporter during the newsgathering process (such as the location of the interview), however, are not observations of an ordinary witness, but are events witnessed in a reporting capacity and are privileged. Id.

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H. Media as a party

There is no Alabama statutory or reported case law distinguishing the application of the reporter's privilege in cases where the media is a party and cases where it is not.

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I. Defamation actions

There is no Alabama statutory or reported case law distinguishing the application of the reporter's privilege in defamation cases.

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IV. Who is covered

Alabama's shield statute, Ala. Code § 12-21-142, applies to persons "engaged in, connected with or employed on any newspaper, radio broadcasting station or television station, while engaged in a newsgathering capacity." In Price v. Time, Inc., 416 F.3d 1327, 1335-43 (11th Cir. 2005), after the Supreme Court of Alabama had declined to answer a certified question regarding the scope of the shield statute, the Eleventh Circuit held that magazine reporters are excluded from the statute’s application. Likewise, in an earlier, unreported opinion, a federal court sitting in the state strictly construed the shield statute to exclude reporters working for trade journals. Long v. Cooper, No. CV85-H-801-S (N.D. Ala. Apr. 10, 1986).

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A. Statutory and case law definitions

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1. Traditional news gatherers

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a. Reporter

Alabama's shield statute does not use the term "reporter," but states that the privilege applies to a person "engaged in, connected with or employed on any newspaper, radio broadcasting station or television station, while engaged in a newsgathering capacity." Ala. Code § 12-21-142.

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b. Editor

There is no Alabama statutory or reported case law defining "editor."

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c. News

There is no Alabama statutory or reported case law defining "news."

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d. Photo journalist

There is no Alabama statutory or reported case law specifically defining "photojournalist"; however, in Knighten v. Daewoo Motor America, No.: CV-00-2370, 30 Med. L. Rptr. 2600 (Madison County, Ala. Cir. Ct., Sept. 19, 2001), the court applied, without discussion, Alabama's shield statute, as well as the United States Constitution and the Alabama Constitution, in quashing a subpoena seeking videotapes "in their unedited form" from a television station. The television station had voluntarily produced videotapes of the material that was actually broadcast, but the court held the station was protected from disclosure of the unedited videotapes. Id. It is logical to assume that the protection provided to the television station in Knighten would apply with equal force to videographers and/or photojournalists.

In an unreported order, a United States magistrate judge addressed the application of the First Amendment privilege to videotapes made by videographers who were working for two television stations. Ellis v. Hicklen, No. 01-BU-3290-M (N.D. Ala. Apr. 8, 2002). Although the court held that the television stations must produce the videotapes, the court authorized the television stations to redact any audio or video of interviews to which an independent assertion of the privilege could be made. Id. Allowing the television stations to redact privileged information from the videotapes, such as portions of the tapes that would reveal the identity of any undisclosed sources, affirmatively suggests that the magistrate believed that photojournalists are covered by the reporter's privilege.

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e. News organization/medium

Alabama's shield statute applies to reporters working for newspapers, radio broadcasting stations, and television stations. Ala. Code § 12-21-142. In Price v. Time, Inc., 416 F.3d 1327, 1335-43 (11th Cir. 2005), after the Supreme Court of Alabama had declined to answer a certified question regarding the scope of the shield statute, the Eleventh Circuit held that magazine reporters are excluded from the statute's application. Likewise, in an earlier, unreported opinion, a federal court sitting in the state strictly construed the shield statute to exclude reporters working for trade journals from the shield statute's application. Long v. Cooper, No. CV85-H-801-S (N.D. Ala. Apr. 10, 1986).

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2. Others, including non-traditional news gatherers

There is no Alabama statutory or reported case law applying the reporter's privilege to non-traditional news gatherers.

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B. Whose privilege is it?

Alabama's shield statute, Ala. Code § 12-21-142, suggests that the privilege belongs to the reporter. With respect to the First Amendment privilege, there is no Alabama statutory or reported case law addressing whether the reporter, the reporter's employer, or the source may assert the privilege.

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V. Procedures for issuing and contesting subpoenas

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A. What subpoena server must do

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1. Service of subpoena, time

If a party in a civil action issues a subpoena for a reporter's documents, notes, or other materials, Rule 45 of the Alabama Rules of Civil Procedure requires the subpoenaing party to serve a notice to every other party, notifying of the intent to serve the subpoena upon the expiration of fifteen (15) days from service of the notice. ALA. R. CIV. P. 45 (a)(3)(A). A copy of the subpoena must be attached to the notice.

In a criminal action, the clerk of the court in which the criminal proceeding is pending may issue subpoenas at any time as required by any party for attendance at trial, hearings, depositions, or any other lawful purpose. ALA. R. CRIM. P. 17.1 (a).

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2. Deposit of security

Under Alabama law, there is no requirement that a subpoenaing party deposit any security to procure the reporter's testimony or materials.

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3. Filing of affidavit

Under Alabama law, there is no requirement that a subpoenaing party make any sworn statement in order to procure the reporter's testimony or materials.

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4. Judicial approval

In Alabama, the issuance of a subpoena does not require judicial approval unless a timely objection has been made. If a person or party serves an objection to the issuance of a subpoena for production or inspection within ten (10) days of the service of the notice of intent to serve a subpoena for production or inspection, the subpoena will not issue without an order from the court. ALA. R. CIV. P. 45 (a)(3)(B).

In certain circumstances, judicial approval may be required to serve a notice of intent to serve a subpoena for production or inspection. Alabama law requires parties to a civil action to provide every other party with a fifteen- (15-) day notice prior to issuing a subpoena for the production or inspection of documents. ALA. R. CIV. P. 45 (a)(3)(A). The subpoenaing party may serve the fifteen-day notice without leave of court upon the expiration of forty-five (45) days after service of the summons and complaint. Id. If the defendant has already sought discovery in the action, the subpoenaing party may serve the notice without leave of court within the forty-five- (45-) day period. Id.

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5. Service of police or other administrative subpoenas

In criminal actions, the district attorney has the authority to issue subpoenas requiring witnesses to appear before the grand jury. ALA. R. CRIM. P. 17.1 (c)(1). As a part of the district attorney's investigatory authority, the district attorney may, at any time the grand jury is not in session, subpoena witnesses whom the district attorney wishes to examine under oath concerning any violations of the laws of the State of Alabama. ALA. R. CRIM. P. 17.1 (c)(2). If the matter being investigated by the district attorney is not before the grand jury, the district attorney has the authority to issue subpoenas when the grand jury is in session. Id. In addition to the district attorney, the foreman of the grand jury and the clerk of the circuit court have the authority to subpoena witnesses to appear before the grand jury. ALA. R. CRIM. P. 17.1 (b). The Alabama Rules of Criminal Procedure permit the service of subpoenas by mail or, if requested, by personal service. ALA. R. CRIM. P. 17.4.

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B. How to Quash

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1. Contact other party first

There is no requirement under Alabama law that a person moving to quash a subpoena contact the subpoenaing party prior to filing the motion to quash. Almost invariably, however, unless time does not permit, such contact would be recommended.

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2. Filing an objection or a notice of intent

There are two different courses that a reporter may take to attempt to avoid producing documents or other materials requested by subpoena without having to file a motion to quash. The course that the reporter should take depends upon whether only the notice of intent to serve a subpoena for production or inspection has been served or whether the subpoena has actually issued. If the subpoena has not issued, any person or party may serve an objection to the issuance of subpoena within ten (10) days of service of the notice of intent to serve a subpoena for production or inspection. If the objection is filed within this ten- (10-) day period, the subpoena will not issue, and the party seeking the information must move for an order to compel pursuant to Rule 37(a) of the Alabama Rules of Civil Procedure. ALA. R. CIV. P. 45 (a)(3)(B). If the subpoena has issued and the subpoenaed party wishes to object under a claim of privilege, the subpoenaed party must assert the privilege expressly in an objection and serve the objection upon the subpoenaing party or the attorney designated in the subpoena. The objection should be served before the time specified for compliance in the subpoena. ALA. R. CIV. P. 45 (c)(2)(B) & (d)(2). Once the objection has been made, the subpoenaing party is not entitled to inspect and copy the requested materials until the court has issued an order to that effect. To receive such an order, the subpoenaing party may move for an order to compel. Id.

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3. File a motion to quash

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a. Which court?

The motion to quash should be filed with the court that issued the subpoena. ALA. R. CIV. P. 45 (c)(3)(A).

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b. Motion to compel

Whether a subpoena recipient should file a motion to quash before the subpoenaing party files a motion to compel is largely a tactical matter, and the appropriate action often depends upon whether the subpoenaing party is seeking testimony or documents. If the subpoena calls for testimony, it is appropriate to file a motion to quash before the subpoenaing party files a motion to compel. If the subpoena seeks only documents, the subpoena recipient should serve objections pursuant to Rule 45 (c)(2)(B) of the Alabama Rules of Civil Procedure and assess the likelihood of the subpoenaing party filing a motion to compel. If after serving the objections, it appears that the subpoenaing party is going to file a motion to compel, the subpoena recipient should file a motion to quash.

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c. Timing

Rule 45 of the Alabama Rules of Civil Procedure requires a motion to quash to be "timely." ALA. R. CIV. P. 45 (c)(3)(A).

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d. Language

There is no statutorily required language that must be included in a motion to quash, but as a general matter, the motion to quash should set forth the moving party's claim that the subpoenaed documents or testimony are privileged and the basis for the assertion of the privilege - Alabama's shield statute, the First Amendment to the United States Constitution, or both. When asserting that the subpoenaed testimony or materials are privileged under the First Amendment, the motion should set forth the three elements that the subpoenaing party must prove to obtain the subpoenaed materials, which are: 1) The reporter has information highly relevant to a claim or a defense; 2) There is a compelling need for disclosure sufficient to override the First Amendment privilege; and 3) The party seeking the information has unsuccessfully attempted to obtain it from other sources less chilling of First Amendment freedoms. Norandal USA, Inc. v. Local Union No. 7468, No.: CV-86-136, 13 Med. L. Rptr. 2167 (Jackson County, Ala. Cir. Ct., Sept. 11, 1986). When applicable, the motion should include the assertion that the subpoena is overbroad, oppressive, and burdensome, in violation of the Alabama Rules of Civil Procedure.

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e. Additional material

Generally, copies of the following may be helpful to the court and should be attached to a motion to quash: 1) A copy of the subpoena; 2) Copies of authoritative or persuasive cases cited in the motion to quash; and 3) Copies of any newspaper articles relevant to the subpoena request.

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4. In camera review

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a. Necessity

There is no Alabama statutory or reported case law addressing whether, prior to deciding a motion to quash, the court must conduct an in camera review of the subpoenaed material or interview the subpoenaed reporter.

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There is no Alabama statutory or reported case law addressing the consequences of a reporter's or publisher's consent to an in camera review.

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c. Consequences of refusing

There is no Alabama statutory or reported case law addressing the consequences of a reporter refusing to consent to an in camera review.

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5. Briefing schedule

There is no regular briefing schedule for a motion to quash in Alabama; the schedule will depend upon the practice and preference of the court involved.

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6. Amicus briefs

Alabama courts routinely accept amicus briefs, although they are more prevalent at the appellate than at the trial court level. There is no particular organization that regularly files amicus briefs opposing the subpoenaing of reporters in Alabama. Parites can contact the Alabama Press Association in Birmingham for support at (205) 871-7737.

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VI. Substantive law on contesting subpoenas

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A. Burden, standard of proof

There is no Alabama statutory or reported case law addressing the standard of proof for overcoming the assertion of the reporter's privilege.

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B. Elements

The privilege provided by Alabama’s shield statute, Ala. Code § 12-21-142, appears to be absolute.

With respect to the qualified First Amendment privilege, once a reporter demonstrates that the subpoenaed information was procured while engaged in a newsgathering activity, the subpoenaing party must demonstrate the following: 1) The reporter has information highly relevant to a claim or defense; 2) There is a compelling need for the disclosure sufficient to override the qualified First Amendment privilege; and 3) The party seeking the information has unsuccessfully attempted to obtain it from other sources less chilling of First Amendment freedoms. Norandal USA, Inc. v. Local Union No. 7468, No.: CV-86-136, 13 Med. L. Rptr. 2167 (Jackson County, Ala. Cir. Ct., Sept. 11, 1986).

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1. Relevance of material to case at bar

The subpoenaed information must be highly relevant to a claim or defense in the underlying litigation and there must be compelling need for the disclosure. Norandal USA, Inc. v. Local Union No. 7468, No.: CV-86-136, 13 Med. L. Rptr. 2167 (Jackson County, Ala. Cir. Ct., Sept. 11, 1986). A compelling interest or need has been defined as "going to the very heart of the matter." Id. In Cowan v. Community Home Banc, Inc., No.: CV-01-4028, 31 Med. L. Rptr. 2498, 2501 (Jefferson County, Ala. Cir. Ct., Feb. 26, 2003), the court held that if the information sought from a reporter relates to the central inquiry of the case, then the subpoenaing party has a compelling need for disclosure sufficient to override the qualified First Amendment privilege. If, on the other hand, the purpose of the subpoena is to gather information tangential to the central inquiry of the case, such as information used to attack the credibility of testimony, then the subpoenaing party does not have a compelling need for disclosure and the privilege will not be overcome. Id.

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2. Material unavailable from other sources

Alabama law requires a subpoenaing party to demonstrate that it has unsuccessfully attempted to obtain the information from other sources. Norandal USA, Inc. v. Local Union No. 7468, No.: CV-86-136, 13 Med. L. Rptr. 2167 (Jackson County, Ala. Cir. Ct., Sept. 11, 1986). Alabama courts have not addressed the meaning of unavailability.

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a. How exhaustive must search be?

There is no Alabama statutory or reported case law addressing how exhaustive a search for alternative sources must be.

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b. What proof of search does a subpoenaing party need to make?

There is no Alabama statutory or reported case law addressing the manner in which the subpoenaing party must demonstrate that it has conducted a search for alternative sources.

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c. Source is an eyewitness to a crime

There is no Alabama statutory or reported case law addressing the application of the privilege when the source was an eyewitness to a crime.

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3. Balancing of interests

There is no Alabama statutory or reported case law addressing this issue; however, a federal court sitting in the state has cited the principal that, in civil cases, the public interest in nondisclosure of journalists' news sources will often be weightier than the private interest in compelled disclosure, but in criminal cases, courts are more inclined to rule in favor of disclosure. Pinkard v. Johnson, 118 F.R.D. 517 (M.D. Ala. 1987). Another federal court sitting in the state has identified the competing interests of First Amendment rights and the right to a fair trial when the reporter's privilege is raised. Sanders v. Alabama State Bar, 887 F. Supp. 272, 274-75 (M.D. Ala. 1995). The court stated that these two interests "must be balanced against each other to determine which is more compelling in a specific case." Id. at 274.

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4. Subpoena not overbroad or unduly burdensome

Rule 45 of the Alabama Rules of Civil Procedure permits a court to quash a subpoena that subjects a person to undue burden if the person files a timely motion. ALA. R. CIV. P. 45 (c)(3)(A)(iv). Rule 17.3 of the Alabama Rules of Criminal Procedure permits a court to dismiss or modify a subpoena duces tecum upon a promptly made motion if the subpoena is unreasonable, oppressive, or unlawful. ALA. R. CRIM. P. 17.3 (c).

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5. Threat to human life

There is no Alabama statutory or reported case law addressing the application of the privilege when the subpoenaed matter involves a threat to human life.

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6. Material is not cumulative

In Alabama, the subpoenaing party must demonstrate that it has unsuccessfully attempted to obtain requested information from other sources less chilling of First Amendment freedoms. Norandal USA, Inc. v. Local Union No. 7468, No.: CV-86-136, 13 Med. L. Rptr. 2167 (Jackson County, Ala. Cir. Ct., Sept. 11, 1986). Alternatively stated, when deciding whether subpoenaed information is privileged, a court should consider whether the information can be obtained by alternative means. Id.

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7. Civil/criminal rules of procedure

The Alabama Rules of Civil Procedure and Criminal Procedure permit a subpoenaed person to move to quash or modify a subpoena if the motion is made on a prompt or timely basis. ALA. R. CIV. P. 45 (c)(3)(A); ALA. R. CRIM. P. 17.3 (c).

There are no other elements that must be met before a subpoenaing party can overcome the reporter's privilege.

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8. Other elements

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C. Waiver or limits to testimony

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1. Is the privilege waivable?

There is no Alabama statutory or reported case law addressing this issue, but a federal court sitting in the state held that a reporter waived the privilege by discussing a news story with an attorney and by signing an affidavit about a conversation between the reporter and a source. Pinkard v. Johnson, 118 F.R.D. 517 (N.D. Ala. 1987).

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2. Elements of waiver

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a. Disclosure of confidential source's name

There is no Alabama statutory or reported case law addressing the application of the reporter's privilege when the reporter has disclosed the name of a confidential source.

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b. Disclosure of non-confidential source's name

There is no Alabama statutory or reported case law addressing the application of the reporter's privilege when the reporter has disclosed the name of a non-confidential source.

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c. Partial disclosure of information

There is no Alabama statutory or reported case law addressing the application of the privilege when there has been a partial disclosure of information.

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d. Other elements

There is no Alabama statutory or reported case law addressing any other issues concerning waiver of the reporter's privilege.

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3. Agreement to partially testify act as waiver?

There is no Alabama statutory or reported case law addressing whether an agreement to partially testify acts as a waiver of the reporter's privilege.

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VII. What constitutes compliance?

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A. Newspaper articles

Newspaper articles are self-authenticating under ALA. R. EVID. 902 (6).

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B. Broadcast materials

There is no Alabama statutory or case law addressing this issue.

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C. Testimony vs. affidavits

Although the Alabama Rules of Evidence do not provide as a matter of right for the possibility of substituting an affidavit for live testimony, such substitution is sometimes permitted pursuant to agreement of the parties.

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D. Non-compliance remedies

Civil and criminal courts may hold any person who fails to obey a subpoena, without excuse, in civil or criminal contempt. ALA. R. CIV. P. 45 (e), 70A; ALA. R. CRIM. P. 33.1, 33.2.

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