Ohio

Reporter's Privilege Compendium

Monica L. Dias, Esq.
Frost Brown Todd LLC
3300 Great American Tower
301 East Fourth Street
Cincinnati, Ohio 45202
513-651-6783
mdias@fbtlaw.com

Last updated October 2018

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I. Introduction: History & Background

The reporter's privilege in Ohio is based primarily on statutory shield laws which protect the identity of confidential sources. In addition, however, a number of Ohio appellate and trial courts have recognized a constitutional protection for non-published/non-broadcast reporter's notes, outtakes, and other source-related materials.

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II. Authority for and source of the right

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A. Shield law statute

Ohio Revised Code § 2739.04 (broadcasters)

No person engaged in the work of, or connected with, or employed by any noncommercial educational or commercial radio broadcasting station, or any noncommercial educational or commercial television broadcasting station, or network of such stations, for the purpose of gathering, procuring, compiling, editing, disseminating, publishing, or broadcasting news shall be required to disclose the source of any information procured or obtained by such person in the course of his employment, in any legal proceeding, trial, or investigation before any court, grand jury, petit jury, or any officer thereof, before the presiding officer of any tribunal, or his agent, or before any commission, department, division, or bureau of this state, or before any county or municipal body, officer, or committee thereof. . . .

Ohio Revised Code § 2739.12 (newspapers)

No person engaged in the work of, or connected with, or employed by any newspaper or any press association for the purpose of gathering, procuring, compiling, editing, disseminating, or publishing news shall be required to disclose the source of any information procured or obtained by such person in the course of his employment, in any legal proceeding, trial, or investigation before any court, grand jury, petit jury, or any officer thereof, before the presiding officer of any tribunal, or his agent, or before any commission, department, division, or bureau of this state, or before any county or municipal body, officer or committee thereof.

Legislative Intent

One court has described the legislative intent behind the shield statutes as protecting the relationship between a source, who desires to give information to a newsperson but who fears publicity or the possible retribution arising from the discovery that he is the source of the information that has been broadcast/published, and a newsperson. Such a relationship is to be fostered in order to protect the free flow of information from the source to the reporter. See State v. Geis, 2 Ohio App.3d 258, 441 N.E.2d 803 (10th Dist. 1981).

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B. State constitutional provision

The Ohio Constitution, Article I, Section 11 states: "Every citizen may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of the right; and no law shall be passed to restrain or abridge the liberty of speech, or of the press." While closely parallel to the language of the First Amendment to the United States Constitution, the state constitutional clause exists as an independent source of protection of free press rights. Scott v. News-Herald, 25 Ohio St.3d 243, 245, 496 N.E.2d 699 (1986).

The protection afforded under Article I, Section 11 of the Ohio Constitution is as broad as that provided by the First Amendment and may, in fact, provide even greater protection. Indeed, the state and federal constitutional provisions in question do not contain identical language. The language of Article I, Section 11 tracks the language of the First Amendment and then, significantly, adds the word "restrain." The inclusion of the word "restrain" in the state formulation should enhance the protection afforded the press. Any other interpretation would subordinate Ohio's Constitution to no more than a mirror image of the First Amendment, dependent for its interpretation upon the federal courts' views of free press protection. See, e.g., Scott, 25 Ohio St.3d 243; Vail v. Plain Dealer Publ’g Co., 72 Ohio St.3d 279, 1995-Ohio-187, 649 N.E.2d 182. But see State v. Jones, 12th Dist. Butler No. CA2005-06-136, 2005-Ohio-4192 (finding that the Ohio Constitution does not provide more protection than the First Amendment in the context of a motion to quash a subpoena to a journalist).

In this regard, the United States Supreme Court, in discussing a reporter's privilege, recognized the merit of allowing states to "fashion their own standards in light of the conditions and problems" in their own areas. Branzburg v. Hayes, 408 U.S. 665, 706 (1972). The Branzburg Court followed this with an express acknowledgement of the power of state courts to construe ". . . their own constitutions so as to recognize a newsman's privilege, either qualified or absolute." Branzburg v. Hayes, 408 U.S. at 706.

Accordingly, arguments have been made and some courts have considered that a constitutional privilege protecting the editorial process, newsgathering processes and procedures and reporters from compelled disclosure exists under Article I, Section 11 of the Ohio Constitution. See e.g. Fawley v. Quirk, 9th Dist. Summit No. 11822, 11 Med.L.Rptr. 2336, 1985 WL 11006 (July 17, 1985) (holding that the privilege applies identities of nonconfidential sources but finding the privilege had been overcome); Schreiber v. Multimedia of Ohio, Inc., 41 Ohio App. 3d 257, 535 N.E.2d 357 (1st Dist. 1987); Slagle v. Coca Cola, 30 Ohio Misc.2d 34, 507 N.E.2d 794 (Montgomery County C.P. 1986); cf. State ex rel. National Broadcasting Co. v. Lake County Court of Common Pleas, 52 Ohio St.3d 104, 556 N.E.2d 1120 (1990).

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C. Federal constitutional provision

While not fully recognized by all Ohio appellate courts, some Ohio courts have expressly recognized a qualified First Amendment constitutional privilege. See In re McAuley, 63 Ohio App.2d 5, 408 N.E.2d 97 (8th Dist. 1979); State v. Geis, 2 Ohio App.3d 258, 441 N.E.2d 803 (10th Dist. 1981); see, e.g., Fawley v. Quirk, 9th Dist. Summit No. 11822, 11 Med.L.Rptr. 2336, 1985 WL 11006 (July 17, 1985); Slagle v. Coca Cola, 30 Ohio Misc.2d 34, 507 N.E.2d 794 (Montgomery County C.P. 1986). To date, however, the Ohio Supreme Court has declined to recognize a qualified privilege under the First Amendment. See State ex rel. National Broadcasting Company, Inc. v. Lake County Court of Common Pleas, 52 Ohio St.3d 104, 556 N.E.2d 1120 (1990).

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D. Other sources

At this time, there are no other recognized sources for the reporter's privilege in Ohio.

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III. Scope of protection

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A. Generally

The statutory protection, while "absolute" in its terms, may potentially be overridden by a criminal defendant's Sixth Amendment rights.

A journalist’s right to protect the confidentiality of his confidential sources is a qualified right. In determining whether a journalist must divulge the name of a confidential source of information in a criminal proceeding, a court must balance the journalist’s First Amendment right against the defendant's Sixth Amendment right to a fair trial on a case-by-case basis. In re McAuley, 63 Ohio App.2d 5, 408 N.E.2d 97 (8th Dist. 1979); State v. Geis, 2 Ohio App.3d 258, 441 N.E.2d 803 (10th Dist. 1981). These cases generally frame the scope of the qualified constitutional protection in terms broader than those provided by the statutory shield law protection. In dicta, the Ohio Supreme Court discussed the qualified constitutional privilege in the context of a murder case and a trial court’s order to television stations to preserve broadcast tapes and outtakes. See State ex rel. National Broadcasting Company, Inc. v. Lake County Court of Common Pleas, 52 Ohio St.3d 104, 110-11, 556 N.E.2d 1120 (1990). The Ohio Supreme Court reasoned that Branzburg stands for the proposition that a court may enforce a subpoena in a criminal case over a reporter’s claim of privilege as long as the subpoena is issued for a legitimate purpose, and not for harassment. Id. at 110. The Court noted that if the subpoena is overbroad, the remedy is a motion to quash. Id. Despite the dicta in NBC, some Ohio courts continue to apply a balancing test. For example, in In re April 7, 1999 Grand Jury Proceedings, 140 Ohio App.3d 755, 760-61, 2000-Ohio-2552, 749 N.E.2d 325 (7th Dist.), the Seventh District Court of Appeals interpreted NBC as stating that “[b]y implication, the subpoena would be overbroad and violative of the statute if it threatens the disclosure of confidential sources.” The Seventh District held that “[a] balancing of these competing interests is necessary as reporters do not possess an absolute First Amendment right or an absolute statutory right to withhold or otherwise conceal the identity of confidential sources of information in light of ongoing criminal proceedings.” Id. at 761-62; see also State v. Anaga, Montgomery C.P. No. 90-CR-2578, 1991 WL 17185,18 Med.L.Rptr. 1527 (Jan. 3, 1991) (applying three-part test); State v. Daniel, 11th Dist. Trumbull No. 89-T-4214, 1990 WL 237188, (Dec. 31, 1990) (same).

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B. Absolute or qualified privilege

The statutory protection, while "absolute" in its terms, may potentially be overridden by a criminal defendant's Sixth Amendment rights.

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C. Type of case

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1. Civil

In a defamation action by a police chief against a mayor and city, a non-party reporter was found in contempt for refusing to reveal a non-confidential news source. The court of appeals affirmed, finding that the shield law only protected confidential sources. In addition, although the court recognized a qualified privilege under the state and federal constitutions for non-confidential sources, plaintiff had made a sufficient showing that the information sought was relevant, it could not be obtained from alternative sources, and there was a compelling interest in obtaining the information. Fawley v. Quirk, 9th Dist. Summit No. 11822, 1985 WL 11006, 11 Med.L.Rptr. 2336 (July 17, 1985).

At least one court has held that the shield law grants an absolute privilege in civil cases. In that case, a funeral home director sued a TV station and three of its employees for defamation. After a jury found in favor of the TV station, the plaintiff appealed and argued that the trial court should have compelled the media defendants to answer questions that would have revealed their source. The appellate court held that a reporter's privilege to protect the identity of confidential informants is absolute in civil litigation. House of Wheat v. Wright, 2d Dist. Montgomery No. 8614, 1985 WL 17381, at *8 (Oct. 10, 1985); see also Frey v. Multimedia, Inc., 42 F.3d 1388, 23 Med.L.Rptr. 1218, 1994 WL 677678, *3 (6th Cir. 1994) (affirming district court’s decision to allow media defendant in defamation lawsuit to submit documents for in camera review in redacted form in which identity of confidential source would be deleted).

Another court held that the privilege does not prevent a reporter from being deposed, but the reporter would be allowed to refuse to answer questions that would identify her sources. Forest Hills Utility Co. v. City of Heath, 37 Ohio Misc. 30, 302 N.E.2d 593 (Licking C.P. 1973).

A state university employee who was fired for revealing a student's grade point average to a newspaper subpoenaed the reporter to testify at her pre-termination hearing. The court held that the employee was not entitled to subpoena the reporter because the reporter did not have to reveal other sources under the state shield law. Swigart v. Kent State Univ., 11th Dist. Portage No. 2004-P-0037, 2005-Ohio-2258, 2005 WL 1077176.

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2. Criminal

A criminal defendant subpoenaed a newspaper reporter for production of notes and tapes from interviews. The court granted the reporter's motion to quash the subpoena, stating that the defendant could directly contact those persons interviewed by the reporter. The defendant failed to show that the evidence was relevant, that it was not reasonably available from alternative sources, that he could not prepare for trial adequately without the information, and that he was seeking it in good faith. State v. Hamilton, Montgomery C.P. No. 85-CR-2418, 12 Med.L.Rptr. 2135 (May 6, 1986).

In a murder prosecution, the defendant moved to compel a reporter to disclose the identity of an unnamed third person allegedly involved in a crime. The trial court denied the motion after in camera review of a taped conversation between the reporter and co-defendant, wherein the co-defendant named a third party involved. The court of appeals affirmed, finding the privilege existed under the shield law and the First Amendment. The court of appeals held that the defendant could only overcome the privilege by showing that the information was relevant, could not be obtained from alternative sources, and furthered a compelling need. State v. Daniel, 11th Dist. Trumbull No. 89-T-4214, 1990 WL 237188, (Dec. 31, 1990).

After reporters published articles describing police corruption, they attended sessions of a special grand jury that subsequently indicted various police officers. The officers moved to quash the indictments and subpoenaed the reporters to produce notes from their observance of the grand jury proceedings. The reporters moved to quash the subpoenas, claiming that confidential sources testified during the proceeding. The trial court found the reporters in contempt for refusing to testify and ordered them to submit their notes for in camera review. The court of appeals found that there was no need for a contempt order and reversed it because the indictments were already determined to be invalid because the grand jury was improperly selected. The trial court should have looked to all other grounds before determining whether the reporters' testimony was necessary. The court stated that the shield law requires a defendant to show necessity before testimony by a reporter may be ordered. See In re Rutti, 5th Dist. Richland Nos. CA-1771, CA-1782, 1979 WL 209649, 5 Med.L.Rptr. 1513 (July 13, 1979).

In a murder prosecution, a newspaper reporter moved to quash the prosecution's subpoena for production of all notes from an interview with defendant for an article on the case. The court granted the motion to quash, offering protection beyond the shield law's protection of only confidential sources. The court found that a party seeking information failed to overcome a qualified privilege under the First Amendment by adequately showing entitlement to information through evidence of relevance, compelling need and lack of alternative sources. See State v. Anaga, Montgomery C.P. No. 90-CR-2578, 1991 WL 17185,18 Med.L.Rptr. 1527 (Jan. 3, 1991).

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3. Grand jury

A reporter may be found to be in civil contempt for refusing to testify before a grand jury concerning a published interview where the subpoena was not issued for the purpose of harassment. In re Grand Jury Witness Subpoena of Abraham, 92 Ohio App. 3d 186, 634 N.E.2d 667 (11th Dist. 1993).

A subpoena for a TV reporter's notes and grand jury testimony regarding her interview with a criminal suspect may be quashed if the subpoena were issued in bad faith, or to disrupt relations between the TV station and its news sources, or if it were otherwise unreasonable or oppressive. In this case, the court found that the subpoena for grand jury testimony and documentary evidence was not unreasonable or oppressive. In re August 28, 2002 Grand Jury Subpoena, 151 Ohio App. 3d 825, 2003-Ohio-1184, 786 N.E.2d 115 (3d Dist.).

The state subpoenaed a newspaper reporter for grand jury testimony regarding her article publishing the name of an alleged drug dealer and quoting him as admitting he was a drug dealer. The court held that the subpoena was not issued for harassment purposes and denied the reporter's motion to quash the subpoena. State v. Jones, 12th Dist. Butler No. CA2005-06-136, 2005-Ohio-4192.

In dicta, the Ohio Supreme Court discussed the qualified constitutional privilege in the context of a murder case and a trial court’s order to television stations to preserve broadcast tapes and outtakes. See State ex rel. National Broadcasting Company, Inc. v. Lake County Court of Common Pleas, 52 Ohio St.3d 104, 110-11, 556 N.E.2d 1120 (1990). The Ohio Supreme Court reasoned that Branzburg stands for the proposition that a court may enforce a subpoena in a criminal case over a reporter’s claim of privilege as long as the subpoena is issued for a legitimate purpose, and not for harassment. Id. at 110. The Court noted that if the subpoena is overbroad, the remedy is a motion to quash. Id.

A trial court held a newspaper reporter in contempt for refusing to reveal to the grand jury the date he received confidential information pertaining to the county department of human services. The Seventh District Court of Appeals reversed, holding that the government was unable to show that the requested information was relevant and material to the investigation into leaks of confidential information by the county agency. In re April 7, 1999 Grand Jury Proceedings, 140 Ohio App.3d 755, 762, 2000-Ohio-2552, 749 N.E.2d 325 (7th Dist.).

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D. Information and/or identity of source

With respect to the statutory protection, the information deemed privileged is limited to the identity of the source. Forest Hills Utility Co. v. City of Heath, 37 Ohio Misc. 30, 302 N.E.2d 593 (Licking C.P. 1973) (civil case); State v. Geis, 2 Ohio App.3d 258, 441 N.E.2d 803 (10th Dist. 1981) (criminal case). The phrase "source of any information" in Ohio's statutes does not mean anything from which information may be derived, including a newsperson's notes, tapes and records. By use of the phrase "source of any information," the legislature intended to give newspersons a testimonial privilege from disclosing only the identity of the source. State v. Geis, supra.

One court has suggested that, to be defined as a "source" under the shield law, an informant should have first-hand knowledge of the information given to the reporter. Svoboda v. Clear Channel Communications, Inc., 156 Ohio App. 3d 307, 2004-Ohio-894, 805 N.E.2d 559 (6th Dist.).

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E. Confidential and/or nonconfidential information

The constitutional protection has been held to cover non-published/non-broadcast information (e.g., reporters' notes, drafts, outtakes) even if no confidential source is involved. See e.g., Fawley v. Quirk, 9th Dist. Summit No. 11822, 1985 WL 11006, 11 Med.L.Rptr. 2336 (July 17, 1985); State v. Hamilton, Montgomery C.P. No. 85-CR-2418, 12 Med.L.Rptr. 2135 (May 6, 1986); Slagle v. Coca Cola, 30 Ohio Misc.2d 34, 507 N.E.2d 794 (Montgomery County C.P. 1986).

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F. Published and/or non-published material

In a wrongful death action, a newspaper and photographer moved to quash subpoenas to produce unpublished photographs taken of an accident scene. The court granted the motion stating that the qualified privilege applies to unpublished news photographs and offers more protection in civil cases. Slagle v. Coca Cola, 30 Ohio Misc.2d 34, 507 N.E.2d 794 (Montgomery County C.P. 1986).

The plaintiff moved to compel disclosure of outtakes and reporters' notes in a defamation action against a news station for broadcasting the arrest of plaintiff for drunk driving after which plaintiff was never charged. After in camera review of the material, the trial court granted plaintiff's motion to compel disclosure. The court of appeals declined to rule on the constitutional issues, finding that the determination of whether a qualified privilege existed depended upon a balancing of interests lying within the discretion of the trial court. Since no transcript existed of the in camera review, the court refused to find an abuse of discretion in the trial court's order to compel production of the material. Schreiber v. Multimedia of Ohio, Inc., 41 Ohio App. 3d 257, 535 N.E.2d 357 (1st Dist. 1987).

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G. Reporter's personal observations

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H. Media as a party

In a libel action, the court denied plaintiff's motion to compel disclosure of a newspaper reporter's documents that would reveal confidential sources because plaintiff failed to show that the information was relevant and material. Weiss v. Thomson Newspapers Inc., Licking C.P. No. 79-L-69231, 8 Med.L.Rptr. 1258 (Nov. 27, 1981).

Funeral home directors brought a defamation suit against a television station for broadcasting a story that reporters claimed was based on information from confidential sources. The court of appeals affirmed the trial court's ruling that reporters could refuse to answer questions that would tend to reveal sources. While plaintiffs claimed that the information was crucial for proving actual malice, the court recognized the privilege under the First Amendment and an absolute privilege in civil litigation under the shield law to protect confidential sources. House of Wheat v. Wright, 2d Dist. Montgomery No. 8614, 1985 WL 17381 (Oct. 10, 1985).

In a libel action brought by a mayor against a newspaper, a non-party publisher and editors from a different newspaper asserted protection under the shield law during depositions. The court ordered them to answer the questions even though the information sought was gathered in their professional news capacities because plaintiff asserted in good faith that the information would lead to admissible evidence on the issue of defendant newspaper's knowledge of falsity of the published statements. Stokes v. Lorain Journal Co., 26 Ohio Misc. 219, 266 N.E.2d 857 (Cuyahoga C.P. 1970).

The plaintiff moved to compel disclosure of outtakes and reporters' notes in a defamation action against a news station for broadcasting the arrest of plaintiff for drunk driving after which plaintiff was never charged. After in camera review of the material, the trial court granted plaintiff's motion to compel disclosure. The court of appeals declined to rule on the constitutional issues, finding that the determination of whether a qualified privilege existed depended upon a balancing of interest lying within the discretion of the trial court. Since no transcript existed of the in camera review, the court refused to find an abuse of discretion in the trial court's order to compel production of the material. Schreiber v. Multimedia of Ohio, Inc., 41 Ohio App. 3d 257, 535 N.E.2d 357 (1st Dist. 1987).

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I. Defamation actions

The plaintiff moved to compel disclosure of outtakes and reporters' notes in a defamation action against a news station for broadcasting the arrest of plaintiff for drunk driving after which plaintiff was never charged. After in camera review of the material, the trial court granted plaintiff's motion to compel disclosure. The court of appeals declined to rule on the constitutional issues, finding that the determination of whether a qualified privilege existed depended upon a balancing of interest lying within the discretion of the trial court. Since no transcript existed of the in camera review, the court refused to find an abuse of discretion in the trial court's order to compel production of the material. Schreiber v. Multimedia of Ohio, Inc., 41 Ohio App. 3d 257, 535 N.E.2d 357 (1st Dist. 1987).

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IV. Who is covered

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A. Statutory and case law definitions

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1. Traditional news gatherers

The language of the shield statutes is very broad. Any "person engaged in the work of, or connected with, or employed by" any broadcaster or newspaper is covered. R.C. §§2739.04, 2739.12. The newsgatherer must be acting in the course and scope of employment for the privilege to apply. Svoboda v. Clear Channel Communications, Inc., 156 Ohio App.3d 307, 2004-Ohio-894, 805 N.E.2d 559 (6th Dist.).

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a. Reporter

Ohio Revised Code § 2739.04 (broadcasters)

Ohio Revised Code § 2739.12 (newspapers)

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b. Editor

Ohio Revised Code § 2739.04 (broadcasters)

Ohio Revised Code § 2739.12 (newspapers)

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c. News

Ohio Revised Code § 2739.04 (broadcasters)

Ohio Revised Code § 2739.12 (newspapers)

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d. Photo journalist

Ohio Revised Code § 2739.04 (broadcasters)

Ohio Revised Code § 2739.12 (newspapers)

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e. News organization/medium

Ohio Revised Code § 2739.04 (broadcasters)

Ohio Revised Code § 2739.12 (newspapers)

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2. Others, including non-traditional news gatherers

Dun & Bradstreet, Inc. was required to disclose confidential sources because its bi-monthly report on the financial status of individuals and businesses was a periodical which did not fit within the "newspaper or any press association" language of Ohio's statutory shield law. Deltec, Inc. v. Dun & Bradstreet, Inc., 187 F.Supp. 788 (N.D. Ohio 1960).

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B. Whose privilege is it?

The privilege has been held to belong to the reporter. State v. Ventura, 101 Ohio Misc. 2d 15, 720 N.E.2d 1024 (Hamilton C.P. 1999). The privilege belongs to the reporter even if the source seeks the reporter's testimony only to learn information about himself. Ventura v. Cincinnati Enquirer, 396 F.3d 784 (6th Cir. 2005).

The subject of a reporter's news story does not have standing to assert the privilege. City of Akron v. Cripple, 9th Dist. Summit No. 21385, 2003-Ohio-3920, 2003 WL 21697751 (July 23, 2003).

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V. Procedures for issuing and contesting subpoenas

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A. What subpoena server must do

Rule 45(B), Ohio Rules of Civil Procedure:

A subpoena may be served by a sheriff, bailiff, coroner, clerk of court, constable, or a deputy of any, by an attorney at law, or by any other person designated by order of court who is not a party and is not less than eighteen years of age. Service of a subpoena upon a person named therein shall be made by delivering a copy of the subpoena to the person, by reading it to him or her in person, by leaving it at the person's usual place of residence, or by placing a sealed envelope containing the subpoena in the United States mail as certified or express mail return receipt requested with instructions to the delivering postal authority to show to whom delivered, date of delivery and address where delivered, and by tendering to the person upon demand the fees for one day's attendance and the mileage allowed by law. The person responsible for serving the subpoena shall file a return of the subpoena with the clerk. When the subpoena is served by mail delivery, the person filing the return shall attach the signed receipt to the return. If the witness being subpoenaed resides outside the county in which the court is located, the fees for one day's attendance and mileage shall be tendered without demand. The return may be forwarded through the postal service or otherwise.

Rule 17(D), Ohio Rules of Criminal Procedure:

A subpoena may be served by a sheriff, bailiff, coroner, clerk of court, constable, marshal, or a deputy of any, by a municipal or township policeman, by an attorney at law or by any person designated by order of the court who is not a party and is not less than eighteen years of age. Service of a subpoena upon a person named therein shall be made by delivering a copy thereof to such person or by reading it to him in person or by leaving it at his usual place of residence, and by tendering to him upon demand the fees for one day's attendance and the mileage allowed by law. The person serving the subpoena shall file a return thereof with the clerk. If the witness being subpoenaed resides outside the county in which the court is located, the fees for one day's attendance and mileage shall be tendered without demand. The return may be forwarded through the postal service, or otherwise.

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1. Service of subpoena, time

No specific requirements.

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2. Deposit of security

No specific requirements, other than payment of attendance fee and mileage.

Rule 45(B), Ohio Rules of Civil Procedure:

Rule 17(D), Ohio Rules of Criminal Procedure:

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3. Filing of affidavit

No specific requirements.

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4. Judicial approval

No specific requirements.

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5. Service of police or other administrative subpoenas

Rule 45(B), Ohio Rules of Civil Procedure:

Rule 17(D), Ohio Rules of Criminal Procedure:

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B. How to Quash

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1. Contact other party first

Neither case law, the Civil Rules, nor the Criminal Rules requires the reporter to contact the subpoenaing party before filing a motion to quash. However, contacting the subpoenaing party's attorney may be worthwhile. The party issuing the subpoena may be unaware of the Shield Law and the reporter's privilege and may voluntarily withdraw rather than face a motion to quash.

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2. Filing an objection or a notice of intent

Rule 45(C)(2)(b), Ohio Rules of Civil Procedure:

Subject to division (D)(2) of this rule, a person commanded to produce under divisions (A)(1)(b), (iii), (iv), (v), or (vi) of this rule may, within fourteen days after service of the subpoena or before the time specified for compliance if such time is less than fourteen days after service, serve upon the party or attorney designated in the subpoena written objections to production. If objection is made, the party serving the subpoena shall not be entitled to production except pursuant to an order of the court by which the subpoena was issued. If objection has been made, the party serving the subpoena, upon notice to the person commanded to produce, may move at any time for an order to compel the production. An order to compel production shall protect any person who is not a party or an officer of a party from significant expense resulting from the production commanded.

Rule 17 of the Ohio Rules of Criminal Procedure does not provide for the filing of an objection or notice of intent. Crim.R. 17(c) provides that a court may quash a subpoena for production of documentary evidence “if compliance would be unreasonable or oppressive.” A motion to quash is also the proper method of objecting to a subpoena in a criminal case.

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3. File a motion to quash

Rule 45(C)(3), Ohio Rules of Civil Procedure:

On timely motion, the court from which the subpoena was issued shall quash or modify the subpoena, or order appearance or production only under specified conditions, if the subpoena does any of the following:

(a) Fails to allow reasonable time to comply;

(b) Requires disclosure of privileged or otherwise protected matter and no exception or waiver applies;

(c) Requires disclosure of a fact known or opinion held by an expert not retained or specially employed by any party in anticipation of litigation or preparation for trial as described by Civ.R. 26(B)(5), if the fact or opinion does not describe specific events or occurrences in dispute and results from study by that expert that was not made at the request of any party;

(d) Subjects a person to undue burden.

Rule 45(C)(4) of the Ohio Rules of Civil Procedure:

Before filing a motion pursuant to division (C)(3)(d) of this rule, a person resisting discovery under this rule shall attempt to resolve any claim of undue burden through discussions with the issuing attorney. A motion filed pursuant to division (C)(3)(d) of this rule shall be supported by an affidavit of the subpoenaed person or a certificate of that person's attorney of the efforts made to resolve any claim of undue burden.

Rule 45(C)(5) of the Ohio Rules of Civil Procedure:

If a motion is made under division (C)(3)(c) or (C)(3)(d) of this rule, the court shall quash or modify the subpoena unless the party in whose behalf the subpoena is issued shows a substantial need for the testimony or material that cannot be otherwise met without undue hardship and assures that the person to whom the subpoena is addressed will be reasonably compensated.

Rule 17(C), Ohio Rules of Criminal Procedure:

A subpoena may also command the person to whom it is directed to produce the books, papers, documents or other objects designated therein; but the court, upon motion made promptly and in any event made at or before the time specified in the subpoena for compliance therewith, may quash or modify the subpoena if compliance would be unreasonable or oppressive. The court may direct that the books, papers, documents or other objects designated in the subpoena be produced before the court at a time prior to the trial or prior to the time they are offered in evidence, and may, upon their production, permit them or portions thereof to be inspected by the parties or their attorneys.

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a. Which court?

The motion to quash should be filed in the same court from which the subpoena was issued.

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b. Motion to compel

Rule 45(C)(2)(b) of the Ohio Rules of Civil Procedure allows the subpoenaing party to file a motion to compel. The Criminal Rules do not have a similar provision, but provide that “[f]ailure by any person without adequate excuse to obey a subpoena served upon him may be deemed a contempt of the court or officer issuing the subpoena.” Crim.R. 17(G). The media party should not wait for the subpoenaing party to file a motion to compel before filing a motion to quash.

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c. Timing

The media party should file a motion to quash before the "return" date listed on the subpoena, meaning the date by which testimony or documentary evidence is commanded to be produced.

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d. Language

There is no stock language or preferred text that should be included in a motion, although citation to the Civil Rules or Criminal Rules is advisable.

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e. Additional material

There are no additional materials that must be attached to a motion to quash. However, if news reports published in print, on air or online demonstrate that the subpoenaing party can obtain information from sources other than the reporter who was subpoenaed, it is advisable to attach those news reports and links to the online news reports to the motion to quash. It is often helpful to attach affidavits of news personnel to establish the burdensome nature of the subpoena. Also, attach the subpoena to the motion to quash.

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4. In camera review

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a. Necessity

At least one Ohio court has held that before ruling on a motion to quash a subpoena, a trial court must make an in camera inspection to determine if material is protected by the shield law. State v. Geis, 2 Ohio App.3d 258, 441 N.E.2d 803 (10th Dist. 1981); see also Skorvanek v. Ohio Dept. of Rehabilitation and Correction, 10th Dist. Franklin No. 17AP-222, 2018 WL 4603135, 2018-Ohio-3870, ¶72 (“Courts should use in camera inspection to weigh claims of privilege because, “‘[b]y conducting such an inspection in chambers away from the jury and without the presence or participation of counsel for either party, the trial judge may make the necessary determination without compromising the confidentiality of any information he finds to be privileged.’ ” (citations omitted)).

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See Skorvanek v. Ohio Dept. of Rehabilitation and Correction, 10th Dist. Franklin No. 17AP-222, 2018 WL 4603135, 2018-Ohio-3870, ¶72 (“Courts should use in camera inspection to weigh claims of privilege because, “‘[b]y conducting such an inspection in chambers away from the jury and without the presence or participation of counsel for either party, the trial judge may make the necessary determination without compromising the confidentiality of any information he finds to be privileged.’ ” (citations omitted)).

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c. Consequences of refusing

There is no statutory or case law addressing this issue.

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5. Briefing schedule

Briefing schedules are set by local rules and differ in each jurisdiction.

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6. Amicus briefs

Amicus briefs are typically not filed at the trial court level but are allowed at the appellate level.

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VI. Substantive law on contesting subpoenas

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A. Burden, standard of proof

In order to overcome a privilege, a party must show that the information was relevant, could not be obtained from alternative sources, and furthered a compelling need. See, e.g., State v. Daniel, 11th Dist. Trumbull No. 89-T-4214, 1990 WL 237188, (Dec. 31, 1990).

Before a defendant in a criminal proceeding is entitled to either a newsperson's confidential information or confidential source, the defendant must first demonstrate to the court that either the newsperson or the confidential source has relevant evidence regarding the defendant's guilt or innocence. The defendant must show that he has exhausted all available means of obtaining the confidential information requested of the newsperson. Further, the defendant must make an effort to examine the newsperson concerning his non-confidential information and must request an in camera inspection by the court of the newsperson's confidential information. If, after these steps are taken, there is direct evidence and reasonable inferences flowing therefrom that there is a reasonable probability that the newsperson or the confidential source will provide relevant evidence of the defendant's guilt or innocence, the defendant is entitled to either the newsperson's confidential information or the name of his confidential source. In re McAuley, 63 Ohio App.2d 5, 408 N.E.2d 97 (8th Dist. 1979)

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B. Elements

In order to overcome a privilege, a party must show that the information was relevant, could not be obtained from alternative sources, and furthered a compelling need. State v. Daniel, 11th Dist. Trumbull No. 89-T-4214, 1990 WL 237188 (Dec. 31, 1990).

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1. Relevance of material to case at bar

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2. Material unavailable from other sources

The party seeking to overcome the reporter’s privilege must show that the information sought could not be obtained from alternative sources. State v. Daniel, 11th Dist. Trumbull No. 89-T-4214, 1990 WL 237188, (Dec. 31, 1990).

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a. How exhaustive must search be?

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

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c. Source is an eyewitness to a crime

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3. Balancing of interests

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4. Subpoena not overbroad or unduly burdensome

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5. Threat to human life

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6. Material is not cumulative

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7. Civil/criminal rules of procedure

Ohio Rules of Civil Procedure available at http://www.supremecourt.ohio.gov/LegalResources/Rules/civil/CivilProcedure.pdf

Ohio Rules of Criminal Procedure available at http://www.supremecourt.ohio.gov/LegalResources/Rules/criminal/CriminalProcedure.pdf

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8. Other elements

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C. Waiver or limits to testimony

Where the source's identity has been revealed, the privilege conferred by the shield statute is waived only to the extent of the information publicly disclosed. See State v. Geis, 2 Ohio App.3d 258, 441 N.E.2d 803 (10th Dist. 1981).

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1. Is the privilege waivable?

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2. Elements of waiver

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a. Disclosure of confidential source's name

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b. Disclosure of non-confidential source's name

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c. Partial disclosure of information

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d. Other elements

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3. Agreement to partially testify act as waiver?

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VII. What constitutes compliance?

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A. Newspaper articles

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B. Broadcast materials

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C. Testimony vs. affidavits

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D. Non-compliance remedies

Rule 45(E), Ohio Rules of Civil Procedure:

Failure by any person without adequate excuse to obey a subpoena served upon that person may be deemed a contempt of the court from which the subpoena issued. A subpoenaed person or that person's attorney who frivolously resists discovery under this rule may be required by the court to pay the reasonable expenses, including reasonable attorney's fees, of the party seeking the discovery. The court from which a subpoena was issued may impose upon a party or attorney in breach of the duty imposed by division (C)(1) of this rule an appropriate sanction, which may include, but is not limited to, lost earnings and reasonable attorney's fees.

Rule 17(G), Ohio Rules of Criminal Procedure:

Failure by any person without adequate excuse to obey a subpoena served upon him may be deemed a contempt of the court or officer issuing the subpoena.

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1. Civil contempt

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a. Fines

Rule 45(E), Ohio Rules of Civil Procedure:

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b. Jail

Rule 45(E), Ohio Rules of Civil Procedure:

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2. Criminal contempt

Rule 17(G), Ohio Rules of Criminal Procedure:

Failure by any person without adequate excuse to obey a subpoena served upon him may be deemed a contempt of the court or officer issuing the subpoena.

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3. Other remedies

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VIII. Appealing

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A. Timing

An appeal shall be taken by filing a notice of appeal with the clerk of the trial court within thirty days of the entry of judgment or order appealed. Rules 3 and 4 of the Ohio Rules of Appellate Procedure. See http://www.supremecourt.ohio.gov/LegalResources/Rules/appellate/AppellateProcedure.pdf

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1. Interlocutory appeals

An order denying a motion to quash a subpoena issued to a non-party is a final appealable order. Future Communications, Inc. v. Hightower, Franklin App. No. 01AP-1175, 2002-Ohio-2245 (10th Dist.) ("Appellee argues that appellant can only appeal from an order finding him in contempt. We disagree. As noted above, under the applicable statute, any order granting or denying a provisional remedy is a final appealable order if the statutory requirements are met. Furthermore, one should not have to incur the penalties of contempt in order to pursue an appeal.").

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2. Expedited appeals

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B. Procedure

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1. To whom is the appeal made?

The appeal is made to the appropriate district court of appeal. Ohio has 12 appellate districts.

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2. Stays pending appeal

Rule 7(A), Ohio Rules of Appellate Procedure:

Application for a stay of the judgment or order of a trial court pending appeal, or for the determination of the amount of and the approval of a supersedeas bond, must ordinarily be made in the first instance in the trial court. A motion for such relief or for an order suspending, modifying, restoring or granting an injunction during the pendency of an appeal may be made to the court of appeals or to a judge thereof, but, except in cases of injunction pending appeal, the motion shall show that application to the trial court for the relief sought is not practicable, or that the trial court has, by journal entry, denied an application or failed to afford the relief which the applicant requested. The motion shall also show the reasons for the relief requested and the facts relied upon, and if the facts are subject to dispute the motion shall be supported by affidavits or other sworn statements or copies thereof. With the motion shall be filed such parts of the record as are relevant and as are reasonably available at the time the motion is filed. Reasonable notice of the motion and the intention to apply to the court shall be given by the movant to all parties. The motion shall be filed with the clerk of the court of appeals and normally will be considered by at least two judges of the court, but in exceptional cases where the attendance of two judges of the court would be impracticable due to the requirements of time, the application may be made to and considered by a single judge of the court on reasonable notice to the adverse party, provided, however, that when an injunction is appealed from it shall be suspended only by order of at least two of the judges of the court of appeals, on reasonable notice to the adverse party.

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3. Nature of appeal

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4. Standard of review

The standard for review is the abuse of discretion standard. Petro v. North Coast Villas Ltd., 136 Ohio App.3d 96, 97, 735 N.E.2d 985 (2000) (but noting that “when a trial court’s discretionary decision is based on a specific construction of law,” the appellate court’s review is de novo); Future Communications, Inc. v. Hightower, Franklin App. No. 01AP-1175, 2002-Ohio-2245, ¶14 (10th Dist.); Bonewitz v. Red Ferris Chevrolet, Inc., 9th Dist. Wayne No. 01CA0006, 2001 WL 1094537 (Sept. 19, 2001); BFG Employees Credit Union, Inc. v. Kopco & Co., 9th Dist. Lorain No. 01CA007929, 2002 WL 987545 (May 8, 2002).

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5. Addressing mootness questions

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6. Relief

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IX. Other issues

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A. Newsroom searches

S.H.A.R.K. v. Metro Parks Serving Summit County, 499 F.3d 553 (6th Cir. 2007) (a park district that removed a nonprofit animal rights organization’s cameras from a park did not violate the nonprofit organization’s First Amendment rights under the Privacy Protection Act, 42 U.S.C.A. § 2000aa).

United States v. Any & All Radio Station Transmission Equipment, 218 F.3d 543 (6th Cir. 2000) (government brought civil in rem forfeiture action against radio transmission equipment used by individual for unlicensed radio broadcasting; held, forfeiture of radio transmission equipment in these circumstances did not violate individual’s rights under Privacy Protection Act).

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B. Separation orders

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C. Third-party subpoenas

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D. The source's rights and interests

The subject of a reporter's news story does not have standing to assert the privilege. City of Akron v. Cripple, 9th Dist. Summit No. 21385, 2003-Ohio-3920, 2003 WL 21697751 (July 23, 2003).

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Reporter's Privilege Compendium

I. Introduction: History & Background

II. Authority for and source of the right

A. Shield law statute

B. State constitutional provision

C. Federal constitutional provision

D. Other sources

III. Scope of protection

A. Generally

B. Absolute or qualified privilege

C. Type of case

1. Civil

2. Criminal

3. Grand jury

D. Information and/or identity of source

E. Confidential and/or nonconfidential information

F. Published and/or non-published material

G. Reporter's personal observations

H. Media as a party

I. Defamation actions

IV. Who is covered

A. Statutory and case law definitions

1. Traditional news gatherers

a. Reporter

b. Editor

c. News

d. Photo journalist

e. News organization/medium

2. Others, including non-traditional news gatherers

B. Whose privilege is it?

V. Procedures for issuing and contesting subpoenas

A. What subpoena server must do

1. Service of subpoena, time

2. Deposit of security

3. Filing of affidavit

4. Judicial approval

5. Service of police or other administrative subpoenas

B. How to Quash

1. Contact other party first

2. Filing an objection or a notice of intent

3. File a motion to quash

a. Which court?

b. Motion to compel

c. Timing

d. Language

e. Additional material

4. In camera review

a. Necessity

b. Consequences of consent

c. Consequences of refusing

5. Briefing schedule

6. Amicus briefs

VI. Substantive law on contesting subpoenas

A. Burden, standard of proof

B. Elements

1. Relevance of material to case at bar

2. Material unavailable from other sources

a. How exhaustive must search be?

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

c. Source is an eyewitness to a crime

3. Balancing of interests

4. Subpoena not overbroad or unduly burdensome

5. Threat to human life

6. Material is not cumulative

7. Civil/criminal rules of procedure

8. Other elements

C. Waiver or limits to testimony

1. Is the privilege waivable?

2. Elements of waiver

a. Disclosure of confidential source's name

b. Disclosure of non-confidential source's name

c. Partial disclosure of information

d. Other elements

3. Agreement to partially testify act as waiver?

VII. What constitutes compliance?

A. Newspaper articles

B. Broadcast materials

C. Testimony vs. affidavits

D. Non-compliance remedies

1. Civil contempt