Kentucky
Reporter's Privilege Compendium
Author
Jeremy S. Rogers
DINSMORE & SHOHL LLP
101 S. Fifth Street, Suite 2500
Louisville, Kentucky 40202
(502) 540-2300
jeremy.rogers@dinsmore.com
Last updated July 30, 2021
CompareI. Introduction: History & Background
Very little has changed in Kentucky law with regard to reporter's privilege since Branzburg v. Hayes, which originated in Kentucky, was decided by the United States Supreme Court in 1972. Kentucky has had a reporter’s shield statute for many years. See KRS 421.100. The statute provides limited protection, however, shielding reporters only from being forced to disclose the identities of their confidential sources. The statute has never faced constitutional challenge and is limited in this aspect only by the state court decision in Branzburg. Branzburg v. Pound, 461 S.W.2d 345 (Ky. 1971), aff'd sub nom., 408 U.S. 665 (1972).
CompareII. Authority for and source of the right
CompareA. Shield law statute
The reporter’s shield law in Kentucky is codified at KRS 421.100. The statute states:
No person shall be compelled to disclose in any legal proceeding or trial before any court, or before any grand or petit jury, or before the presiding officer of any tribunal, or his agent or agents, or before the General Assembly, or any committee thereof, or before any city or county legislative body, or any committee thereof, or elsewhere, the source of any information procured or obtained by him, and published in a newspaper or by a radio or television broadcasting station by which he is engaged or employed, or with which he is connected.
The statute originally dealt with newspaper reporters, but it was amended in 1952 to add radio and television stations to the list of protected media. Despite the statute’s longevity, very few Kentucky appellate cases have addressed the statute.
CompareB. State constitutional provision
The Kentucky constitution has no express shield law provision, and Kentucky’s courts have not interpreted the free-press and free-speech provision, Ky. Const. § 8, to include a reporter’s privilege.
CompareC. Federal constitutional provision
In Lexington Herald-Leader v. Beard, 690 S.W.2d 374 (Ky. 1984), the Kentucky Supreme Court followed the United States Supreme Court’s lead in Branzburg, 408 U.S. 665 (1972), and refused to recognize a reporter's privilege grounded in the First Amendment. See also Branzburg v. Meigs, 503 S.W.2d 748 (Ky. 1971).
CompareD. Other sources
There are no other sources of reporter's privilege in Kentucky.
CompareIII. Scope of protection
CompareA. Generally
The Kentucky reporter’s shield statute, KRS 421.100, provides absolute protection but only with regard to sources’ identities. Branzburg v. Pound, 461 S.W.2d 345 (Ky. 1971), aff'd sub nom. 408 U.S. 665 (1972). The statute generally does not protect reporters from being forced to disclose other types of information, including unpublished information. On the other hand, there is no reported case which strictly interprets the statute or limits its protection.
CompareB. Absolute or qualified privilege
As written, the Kentucky reporter’s shield statute, KRS 421.100, provides absolute protection against compelled disclosure of a reporter’s source. Branzburg v. Pound, 461 S.W.2d 345 (Ky. 1971), aff'd sub nom. 408 U.S. 665 (1972). In an unpublished decision, the Kentucky Court of Appeals held that the statute “grants immunity to news reporters who decline to disclose the source of information procured,” which presents “the legal impossibility of discovering the source of the information.” Jones v. Hannah, No. 2013-CA-000359-MR, 2015 Ky. App. Unpub. LEXIS 1, at *5 (Ky. App. Jan. 9, 2015). However, in a case concerning a criminal defendant’s access to evidence under “compulsory process” clause of the Sixth Amendment to the United States Constitution, Kentucky’s Supreme Court suggested (but did not hold) that, in certain circumstances, the protections of the reporter’s shield law may yield to a criminal defendant’s rights. Commonwealth v. Barroso, 122 S.W.3d 554, 561 (Ky. 2003).
The protection of Kentucky’s shield law, however, does not prevent a reporter from being compelled to disclose other information which would not identify a source. See KRS 421.100.
CompareC. Type of case
The nature of Kentucky’s statutory privilege is the same in both the criminal and civil contexts. In fact, Kentucky’s reporter shield statute expressly protects against compelled disclosure of sources "in any legal proceeding or trial before any court, or before any grand or petit jury, or before the presiding officer of any tribunal, or his agent or agents, or before the General Assembly, or any committee thereof, or before any city or county legislative body, or any committee thereof, or elsewhere.” KRS 421.100.
Compare1. Civil
Kentucky’s statutory privilege applies "in any legal proceeding or trial before any court.” KRS 421.100.
Compare2. Criminal
Kentucky’s statutory privilege applies "in any legal proceeding or trial before any court.” KRS 421.100.
Compare3. Grand jury
Kentucky’s statutory privilege applies "in any legal proceeding . . . before any grand or petit jury.” KRS 421.100.
CompareD. Information and/or identity of source
Kentucky’s shield law specifically protects the identity of a source as well as information that may implicitly identify a source. See Branzburg v. Pound, 461 S.W.2d 345, 347 (Ky. 1971), aff'd sub nom. 408 U.S. 665 (1972).
CompareE. Confidential and/or nonconfidential information
Neither the privilege statute nor Kentucky case law has squarely addressed the issue of whether the privilege protects confidential information differently than non-confidential information.
CompareF. Published and/or non-published material
The Kentucky statute protects only the sources of published information. KRS 421.100; see also Lexington Herald-Leader v. Beard, 690 S.W. 2d 374 (Ky. 1984). Kentucky’s appellate courts, however, have not addressed this issue under the statute.
CompareG. Reporter's personal observations
Reporters who are eyewitnesses to the matter on which they reported cannot invoke the privilege in order to shield them from disclosing their personal observations. See Branzburg v. Pound, 461 S.W.2d 345, 347 (Ky. 1971), aff'd sub nom. 408 U.S. 665 (1972). Branzburg, a newspaper reporter for the Louisville Courier Journal, was permitted to witness two men making hashish because of his agreement not to disclose their identities. He was summoned to appear before a grand jury and was ordered to disclose the identity of the two men. The court held that Kentucky’s shield law, KRS 421.100, did not confer a privilege from disclosing the identity of the perpetrators, reasoning that the source of the information was Branzburg's personal observation.
CompareH. Media as a party
Whether the media entity is a party to the lawsuit makes no difference with regard to the privilege.
CompareI. Defamation actions
Defamation actions are not treated differently from other cases, either with respect to penalties for noncompliance or applicability of the privilege. See Lexington Herald-Leader v. Beard, 690 S.W. 2d 374 (Ky. 1984).
CompareIV. Who is covered
Kentucky’s shield law, KRS 421.100, applies to any person “engaged or employed” by or “connected” with a “newspaper” or “radio or television broadcasting station.”
CompareA. Statutory and case law definitions
Compare1. Traditional news gatherers
Comparea. Reporter
Neither the shield statute nor Kentucky case law defines "reporter." The statute, KRS 421.100, applies to any persons engaged or employed by or connected with a newspaper, television or radio broadcasting station.
Compareb. Editor
Neither the shield statute nor Kentucky case law defines an "editor." The statute, KRS 421.100, applies to any persons engaged or employed by or connected with a newspaper, television or radio broadcasting station.
Comparec. News
Neither the shield statute nor Kentucky case law defines "news." The statute, KRS 421.100, applies to “any information . . . published in a newspaper or by a radio or television broadcasting station.”
Compared. Photo journalist
Neither the shield statute nor Kentucky case law defines "photojournalist." The statute, KRS 421.100, applies to any persons engaged or employed by or connected with a newspaper, television or radio broadcasting station.
Comparee. News organization/medium
The Kentucky reporter’s shield law, KRS 421.100, protects only those persons employed or engaged by or connected with a newspaper, radio or television station.
Compare2. Others, including non-traditional news gatherers
No reported decisions.
CompareB. Whose privilege is it?
Although there have been no reported decisions on this issue, Kentucky’s cases have all dealt with members of the news media asserting the privilege. Lexington Herald-Leader v. Beard, 690 S.W. 2d 374, 11 Media L. Rep. 1376 (Ky. 1984); Branzburg v. Pound, 461 S.W.2d 345, 347 (Ky. 1971), aff'd sub nom. 408 U.S. 665 (1972); Branzburg v. Meigs, 503 S.W.2d 748 (Ky. 1971).
CompareV. Procedures for issuing and contesting subpoenas
CompareA. What subpoena server must do
Compare1. Service of subpoena, time
Kentucky has adopted no special rules, including time requirements, for serving a subpoena on a member of the news media. Press subpoenas are treated the same as any other subpoena. See Ky. R. Civ. P. 45.01, 45.02; Ky. R. Crim. P. 7.02.
Compare2. Deposit of security
Kentucky law does not require that the subpoenaing party deposit security to procure the testimony or materials of the reporter. See Ky. R. Civ. P. 45.01, 45.02; Ky. R. Crim. P. 7.02.
Compare3. Filing of affidavit
Kentucky law does not require that the subpoenaing party make any sworn statement in order to procure the reporter's testimony or materials. Ky. R. Civ. P. 45.01, 45.02; Ky. R. Crim. P. 7.02.
Compare4. Judicial approval
Kentucky law does not require that a judge or magistrate approve a subpoena before service. Ky. R. Civ. P. 45.01; Ky. R. Crim. P. 7.02.
Compare5. Service of police or other administrative subpoenas
Kentucky law has no special rules regarding the use and service of other administrative subpoenas. Ky. R. Civ. P. 45; Ky. R. Crim. P. 7.02.
CompareB. How to Quash
Compare1. Contact other party first
Kentucky law does not require the subpoenaing party or counsel be contacted prior to objecting or moving to quash. Ky. R. Civ. P. 45; Ky. R. Crim. P. 7.02.
Compare2. Filing an objection or a notice of intent
Kentucky does not require that the party seeking to quash the subpoena file a notice of intent to do so before filing the motion to quash itself. Ky. R. Civ. P. 45; Ky. R. Crim. P. 7.02. However, in a civil case involving a subpoena for records, Kentucky law permits service of a written objection to the subpoenaing party or counsel within ten days of service of the subpoena, which then places the burden on the subpoenaing party to seek an appropriate court order to obtain the requested materials. See Ky. R. Civ. P. 45.04(2).
Compare3. File a motion to quash
Comparea. Which court?
The motion to quash should be filed in the court from which the subpoena was issued, which is ordinarily the same court hearing the case at issue. See Ky. R. Civ. P. 45; Ky. R. Crim. P. 7.02; see also Fed. R. Civ. P. 45(c)(3)(a).
Compareb. Motion to compel
Kentucky law does not permit the recipient of a subpoena to disregard the subpoena and await a motion to compel. Ky. R. Civ. P. 45; Ky. R. Crim. P. 7.02. In a civil case involving a subpoena for records, Kentucky law permits service of a written objection to the subpoenaing party or counsel within ten days of service of the subpoena, which then places the burden on the subpoenaing party to seek an appropriate court order to obtain the requested materials. See Ky. R. Civ. P. 45.04(2). The rule, however, does not preclude the recipient of the subpoena from first proceeding to file a motion to quash.
Comparec. Timing
Kentucky Rules of Civil and Criminal Procedure provide only that a motion to quash must be made "promptly and in any event at or before the time specified in the subpoena for compliance therewith." Ky. R. Civ. P. 45.02; Ky. R. Crim. P. 7.02(3).
Compared. Language
There is no specific language that must be included in a motion to quash.
Comparee. Additional material
No additional materials are required to be attached to a motion to quash.
Compare4. In camera review
Comparea. Necessity
Kentucky law does not require an in camera review or interview with the reporter prior to deciding a motion to quash, but trial courts sometimes do so.
Compareb. Consequences of consent
If a reporter consents to in camera review, a stay pending appeal is not automatic in the event of an adverse ruling. In fact, there is no right of appeal. Orders enforcing subpoenas have been held to be "purely interlocutory" and therefore, not appealable. Parties who have suffered an adverse judgment must proceed through a writ of prohibition. Lexington Herald-Leader Co. v. Beard, 690 S.W.2d 374, 376 (Ky. 1984) (citing Claussner Hosiery Co. v. City of Paducah, 120 S.W.2d 1039 (Ky. 1938).
Comparec. Consequences of refusing
Refusal to consent to in camera review could risk loss of the motion to quash, an order to produce the documents at issue, or sanctions for contempt of court.
Compare5. Briefing schedule
The briefing schedule for a motion to quash is the same as any other motion. In Kentucky’s state courts, briefing schedules may vary by local rule among the circuits.
Compare6. Amicus briefs
Amicus briefs are rarely filed at the trial court level and there is no procedure for doing so. At the appellate level, they may be filed at the discretion of the court. In the Court of Appeals and Supreme Court, an amicus brief must be tendered with a motion for leave to file the brief and filing fee no later than 15 days after the appellant’s brief is filed. Ky. R. Civ. P. 76.12(7).
CompareVI. Substantive law on contesting subpoenas
CompareA. Burden, standard of proof
Generally, Kentucky law places the burden to prove the applicability of a privilege on the party who asserts the privilege. See Richmond Health Facilities-Madison, LP v. Clouse, 473 S.W.3d 79, 85 (Ky. 2015); Stidham v. Clark, 74 S.W.3d 719, 725 (Ky. 2002). With specific reference to the reporter’s shield law, KRS 421.100, Kentucky courts have held that “a fishing expedition will not be tolerated,” that a litigant’s right to information must be weighed against “the importance of freedom of the press,” and that “the limited statutory privilege in KRS 421.100 must be observed.” Lexington Herald-Leader Co. v. Beard, 690 S.W.2d 374, 379 (Ky. 1984).
CompareB. Elements
For a reporter to establish a privilege under the KRS 421.100, he or she must demonstrate that the information containing the source: (1) is sought for disclosure (2) at a legal proceeding or trial before any court, grand or petit jury, tribunal, the General Assembly or any committee thereof, any city or county legislative body or any committee thereof, or elsewhere (3) was procured by him or her and (4) has been published in a newspaper or by a radio or television station by which he or she is employed or engaged or with which he or she is connected in some way.
Compare1. Relevance of material to case at bar
Generally, Kentucky’s courts afford stronger protection against disclosure for information of less direct relevance to the central issues in a case. See Lexington Herald-Leader Co. v. Beard, 690 S.W.2d 374, 376 (Ky. 1984).
Compare2. Material unavailable from other sources
Kentucky courts have required litigants to exhaust other avenues to obtain information before addressing the propriety of subpoenaing such information from reporters or news media entities. See Lexington Herald-Leader Co. v. Beard, 690 S.W.2d 374, 379 (Ky. 1984).
Comparea. How exhaustive must search be?
Kentucky courts have not directly addressed this issue. In Lexington Herald-Leader Co. v. Beard, 690 S.W.2d 374, 375 (Ky. 1984), the Kentucky Supreme Court approved of a trial court requiring the subpoenaing party to exhaust other methods of discovery which included depositions and extensive interrogatories before addressing the subpoena to the news reporters.
Compareb. What proof of search does a subpoenaing party need to make?
No reported decisions.
Comparec. Source is an eyewitness to a crime
In Branzburg v. Pound, the reporter himself was an eyewitness to a crime. He was therefore deemed to be the source. Because Kentucky's shield law prevents only disclosure of the source, the information obtained by the reporter (the identity of the men making hashish) was not held to be unavailable. The court reasoned that the men's identities were not the source of the information. Branzburg v. Pound, 461 S.W.2d 345, 347 (Ky. 1971), aff'd sub nom. 408 U.S. 665 (1972).
Compare3. Balancing of interests
Although the privilege statute does not require a judicial balancing of interests in determining whether to quash a subpoena, the Kentucky Supreme Court has recognized that weighing a "litigant's right to disclosure with due regard for the importance of freedom of the press" is an important part of the analysis. Lexington Herald-Leader Co. v. Beard, 690 S.W.2d 374, 376 (Ky. 1984).
Compare4. Subpoena not overbroad or unduly burdensome
Although there is no case law on point, an overly broad or burdensome subpoena to the press would be dealt with as any other overly broad or burdensome subpoena would. Ky. R. Civ. P. 45.02 provides that a subpoena may be quashed or modified if it is “unreasonable and oppressive.” See also Ky. R. Crim. P. 7.02(3) (“unreasonable or oppressive”).
Compare5. Threat to human life
No reported decisions.
Compare6. Material is not cumulative
In Lexington Herald-Leader Co. v. Beard, 690 S.W.2d 374, 375 (Ky. 1984), the Kentucky Supreme Court approved of a trial court requiring the subpoenaing party to exhaust other methods of discovery to obtain the relevant information, which included depositions and extensive interrogatories before addressing the subpoena to the news reporters.
Compare7. Civil/criminal rules of procedure
Subpoenas that are oppressive or unduly burdensome may be quashed or modified. Ky. R. Civ. P. 45.02; Ky. R. Crim. P. 7.02(3).
Compare8. Other elements
No other elements are required to be met before the privilege can be overcome.
CompareC. Waiver or limits to testimony
Compare1. Is the privilege waivable?
Lexington Herald Leader suggests that the privilege against disclosure of a confidential source may be waivable by publication. Lexington Herald-Leader Co. v. Beard, 690 S.W.2d 374 (Ky. 1984).
Compare2. Elements of waiver
Comparea. Disclosure of confidential source's name
Although there are no reported decisions on the issue of whether disclosure of a confidential source's name constitutes waiver of the privilege, at least with regard to attorney-client privilege, Kentucky Rules of Evidence make clear that disclosure of a confidential source's name to one's lawyer does not constitute waiver of the privilege. Ky. R. Evid. 503(b). Cf. Ky. R. Evid. 509 (excluding from the rule of waiver by voluntary disclosure disclosures that are themselves privileged, as defined by the Rules of Evidence. These include lawyer-client, husband-wife, religious, and counselor/therapist-client privilege).
Compareb. Disclosure of non-confidential source's name
It is uncertain whether Kentucky’s shield law protects non-confidential sources' names. The statute protects “the source of any information procured or obtained . . . and published.” KRS 421.100. The issue of waiver would likely be treated the same as the issue of waiver by disclosure of the name of a confidential source.
Comparec. Partial disclosure of information
Although there are no reported decisions on point, it is common for a journalist to testify as to the accuracy of information without there being a claim that the privilege has been waived. Cf. Ky. R. Evid. 509 (waiving privileges conferred in the context the Rules of Evidence only for significant disclosures concerning the privileged matter).
Compared. Other elements
No reported decisions.
Compare3. Agreement to partially testify act as waiver?
There are no reported decisions on point. As a practical matter, however, it is common for a journalist to testify as to the accuracy of information without there being a claim that the privilege has been waived.
CompareVII. What constitutes compliance?
CompareA. Newspaper articles
Reporters are not required to testify that a particular article actually appeared in the newspaper. Newspapers, books and periodicals are self-authenticating. Ky. R. Evid. 902(6).
CompareB. Broadcast materials
Although there are no reported cases on the issue, Kentucky decisions suggest, at least in the context of recorded material, that the person responsible for the factual matter contained within such material is required to appear to authenticate it. Brock v. Commonwealth, 947 S.W.2d 24 (Ky. 1997).
CompareC. Testimony vs. affidavits
When done pursuant to an agreement between the parties, a sworn affidavit can take the place of in-court testimony, particularly for purposes of authentication. See Ky. R. Evid. 901 (b)(1).
CompareD. Non-compliance remedies
The normal remedies for failure to comply with a valid court order apply equally to reporters. A reporter who does not comply with a valid, upheld subpoena in a civil matter is subject to contempt of court in which the action is pending. Ky. R. Civ. P. 45.06. In a criminal proceeding, a reporter who, without adequate excuse, fails to obey a valid subpoena is subject to even harsher sanctions. A judge may hold the reporter in contempt or issue a bench warrant for their arrest when immediate attendance is compelled. Ky. R. Crim. P. 7.02(7).
Compare1. Civil contempt
Comparea. Fines
Fines for contempt are not capped. KRS 432.260. There are no recent examples of fines being levied against reporters who have refused to comply with subpoenas.
Compareb. Jail
Under KRS 421.140, if a witness refuses to testify, “he shall be imprisoned so long as he refuses,” or until “final disposition of the case in which he so refuses.” However, Kentucky courts have held that incarceration for contempt is extraordinary and subject to limitation. Lewis v. Lewis, 875 S.W.2d 862 (Ky.1993). There are no examples of reporters going to jail rather than disclosing confidential sources.
Compare2. Criminal contempt
No reported decisions.
Compare3. Other remedies
No reported decisions.
CompareVIII. Appealing
CompareA. Timing
Compare1. Interlocutory appeals
Denials of motions to quash are interlocutory and are not immediately appealable in Kentucky. Parties who have suffered an adverse judgment must proceed through a writ of prohibition. Lexington Herald-Leader Co. v. Beard, 690 S.W.2d 374, 376 (Ky. 1984) (citing Claussner Hosiery Co. v. City of Paducah, 120 S.W.2d 1039 (Ky. 1938).
Compare2. Expedited appeals
There are no special considerations that affect news media subpoenas with regard to expedited appeals. An attorney seeking an expedited appeal would need to know the rules for requesting a writ of prohibition.
CompareB. Procedure
Compare1. To whom is the appeal made?
There are four levels of courts in Kentucky. The district courts comprise the first level, the circuit courts the second, the courts of appeals the third and the Supreme Court the fourth. Appeals proceed from one level to the next, so that generally the next highest court accepts appeals from the court immediately beneath. Ky. R. Civ. P. 73.01. Rule 74.02, however, provides that if an appeal is from a circuit court, any party may file a motion for transfer to the Supreme Court. Such motion, however, will generally be granted only upon a showing that the case is "of great and immediate public importance." Ky. R. Civ. P. 74.02. This rule appears to apply only to appeals, not applications for a writ of prohibition.
Compare2. Stays pending appeal
After a notice of appeal or a motion for discretionary review has been filed, a party may move for intermediate relief in the appellate court. The party must show that if such relief is not granted, he or she will suffer immediate and irreparable injury before a hearing is had upon the motion. Ky. R. Civ. P. 76.33. When the appeal is to the United States Supreme Court, Rule 76.44 provides that such filing does not affect the finality of an opinion or final order. A stay may be granted, however, as may reasonably be required to enable the writ to be obtained. The stay, however, cannot exceed 90 days. Ky. R. Civ. P. 76.44. The fact that the appeal may address an issue which involves a violation of a constitutional right does not affect what standard is applied or whether a stay will be granted. Ky. R. Civ. P. 76.33, 76.44.
Compare3. Nature of appeal
A party who wishes to appeal a denial of a motion to quash must proceed through a writ of prohibition. Orders denying such motions are interlocutory and cannot be immediately appealed. Lexington Herald-Leader Co. v. Beard, 690 S.W.2d 374, 376 (Ky. 1984). The reporter against whom the subpoena is granted can have the decision subjected to appellate review by disobeying the order and being held in contempt. If he or she is held in criminal contempt, the appeal would no longer be regarded as interlocutory and thus could be immediately appealed. Nye v. U.S., 313 U.S. 33, 85 (1941). If, however, the contempt is civil in nature, the order is considered to be part of the ongoing civil case and is thus interlocutory and not immediately appealable.
Compare4. Standard of review
Issues with regard to a lower court's treatment of a subpoena are generally reviewed for abuse of discretion. A lower court's decision to uphold or quash a subpoena should not be disturbed unless it is arbitrary. International Union of Operating Eng'rs v. Bryan, 255 S.W.2d 471 (Ky. 1953). The abuse of discretion standard is applied whether or not the litigant presents questions affecting constitutional rights. See McLaughlin v. Service Employees Union, AFL-CIO, Local 280, 880 F.2d 170 (9th Cir. 1989).
Compare5. Addressing mootness questions
Kentucky courts have not addressed mootness in the context of subpoenas issued to reporters which expired upon dismissal of the grand jury for which they were issued. The Kentucky Supreme Court has, however, discussed the issue in a case involving subpoenas issued to a church which sought disclosure of church records containing privileged communications between parishioners and one of its priests. In Commonwealth v. Hughes, a Roman Catholic Diocese obtained a writ of prohibition from the court of appeals that prevented the respondent from enforcing its order that certain documents from the church archives be submitted to a grand jury. Hughes, 873 S.W.2d 828, 829 (Ky. 1994). The Commonwealth of Kentucky appealed. The Court held that the controversy was rendered moot by dismissal of the grand jury which issued the subpoena for the protected documents. Id. Additionally, the Court found that the facts presented did not provide grounds for reviewing the case under the exception to the mootness doctrine for matters that are capable of repetition but which evade review. Id. at 830-831. The Court found that the action failed both prongs of the test articulated in In re Commerce Oil Co. 847 F.2d 291, 293 (6th Cir.1988), saying:
With respect to the first prong [whether the challenged action is "too short in duration to be fully litigated prior to its cessation or expiration,"] [t]here is no reason to assume that a different grand jury seeking to discover the same material would be formally discharged before resolution of the privilege issue could be obtained. Even if one were to argue that a grand jury empanelled for a one-month time period involves a process "too short in duration" for this question to be fully litigated, there is nothing to prevent empanelment of a special grand jury of indefinite duration, with the ability, therefore, to litigate this discovery matter to whatever extent necessary.
The above observations also resolve the second prong of the analysis. The very fact that makes this controversy moot (i.e., that the Grand Jury which issued the subpoena has been discharged ) is the fact that precludes a reasonable expectation that the "same complaining party" will again be subject to denial of the discovery materials sought. If this scenario is repeated, it will be because a different grand jury has been impaneled and decides to re-open the presently concluded investigation.
Id. at 831.
Compare6. Relief
In terms of relief, an appellate court is empowered to reverse the lower court's decision, order a rehearing or dissolve the contempt.
CompareIX. Other issues
CompareA. Newsroom searches
The Privacy Protection Act, 42 U.S.C. 2000aa, has been applied by Kentucky trial courts to quash newsroom search warrants. There is no Kentucky state-law equivalent of the Privacy Protection Act.
CompareB. Separation orders
There is no protection either through statute or case law that limits the scope of separation orders issued against reporters who are both trying to cover a trial and who are on a witness list. Reporters, however, have had some success gaining protection by arguing that the separation order, acting in conjunction with a subpoena, effectively violates his or her newsgathering rights under the First Amendment.
CompareC. Third-party subpoenas
There have been no reported instances in Kentucky of subpoenas being issued to third parties in attempts to discover a reporter's source.
CompareD. The source's rights and interests
There have been no reported instances in Kentucky of sources being allowed to intervene anonymously to halt disclosure of their identities pursuant to the reporter’s shield law, KRS 421.100. However, in Doe v. Coleman, 497 S.W.3d 740 (Ky. 2016), the Kentucky Supreme Court recognized the right of anonymous internet posters to oppose a subpoena to an internet provider seeking to disclosure their identities. The First Amendment analysis in Doe would seem to apply equally or more forcefully in the context of the reporter’s shield law.
Compare