West Virginia

Reporter's Privilege Compendium

Sean McGinley
DiTrapano Barrett DiPiero McGinley & Simmons, PLLC
P.O. Box 1631
Charleston, WV 25326-1631
304-342-0133

http://www.dbdlawfirm.com

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I. Introduction: History & Background

Generally speaking, the status of the reporter's privilege in West Virginia is strong. Although the contours of the privilege may not be as developed through caselaw as in other states, the Supreme Court of Appeals of West Virginia has fashioned a strong privilege to protect reporters, especially in civil cases. Because of the strength of the privilege, incidences of reporters being jailed or fined over privilege issues are exceedingly rare in West Virginia.

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II. Authority for and source of the right

The Supreme Court of Appeals of West Virginia has held that a reporter is entitled to a qualified privilege when engaged in the news-gathering function. This qualified privilege was articulated first in State ex rel. Hudok v. Henry, 182 W.Va. 500, 389 S.E.2d 188 (W.Va. 1990). The state Supreme Court delineated a balancing test for application of the reporter's privilege. The source for the privilege was found in the United States Supreme Court's decision in Branzburg v. Hayes, 408 U.S. 665 (1972), and in the First Amendment to the United States Constitution.

In 2011, the West Virginia Legislature enacted a “Reporter’s Privilege” statute. W.Va. Code § 57-3-10. That statute expanded the earlier application of the reporter’s privilege insofar as the compelled identification of confidential sources is concerned and also specifically left in place the more broadly applied reporter’s qualified privilege protections as stated in Hudok.

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A. Shield law statute

West Virginia’s Reporter’s Privilege statute, W.Va. Code § 57-3-10, states:

(a) "Reporter" means a person who regularly gathers, prepares, collects, photographs, records, writes, edits, reports, or publishes news or information that concerns matters of public interest for dissemination to the public for a substantial portion of the person's livelihood, or a supervisor, or employer of that person in that capacity: Provided, That a student reporter at an accredited educational institution who meets all of the requirements of this definition, except that his or her reporting may not provide a portion of his or her livelihood, meets the definition of reporter for purposes of this section.

(b) No reporter may be compelled to:

(1) Testify in any civil, criminal, administrative or grand jury proceeding in any court in this state concerning the confidential source of any published or unpublished information obtained by the reporter in the course of the above described activities without the consent of the confidential source, unless such testimony is necessary to prevent imminent death, serious bodily injury or unjust incarceration; or

(2) Produce any information or testimony that would identify a confidential source, without the consent of the confidential source, unless such testimony or information is necessary to prevent imminent death, serious bodily injury or unjust incarceration.

(c) Nothing in this section shall be read to limit any existing Constitutional protections afforded any person under the United States or West Virginia Constitutions.

As of the date this Compendium was published, there have been no reported decisions applying the Reporter’s Privilege statute. One unreported case discusses this statute in the context of a trial court decision construing broadly the definition of a “reporter” as used in the statute and applying it to the author of an independent online news story. Ramezan v. Hough, 2015 WL 5331810, at *1 (W. Va. 2015) (“[T]he circuit court first determined that petitioner’s tax records were irrelevant to the determination of whether petitioner could exercise the statutory privilege West Virginia Code § 57–3–10 affords to news reporters and, therefore, petitioner did not have to produce those records. Second, the circuit court found that petitioner was a “reporter” within the meaning of West Virginia Code § 57–3–10 and was able to exercise the privilege and protect the identity of his source.”).

Subpart (c) of W.Va. Code § 57-3-10 is significant because it makes clear that the shield law may not be read “to limit any existing constitutional protections” from compelled disclosure of information for reporters in West Virginia. This can only be understood to be a reference to the constitutional reporters’ privilege articulated in Hudok. It is clear then that subpart (c) only expands the scope of protections for reporters, and the shield law should not be interpreted as limiting or narrowing in any way the scope of the West Virginia reporters’ privilege previously articulated in Hudok.

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B. State constitutional provision

The statutory protections for reporters articulated in the West Virginia Reporter’s Privilege Statute (W.Va. Code § 57-3-10) expand upon constitutional protections articulated earlier in West Virginia caselaw. While the West Virginia Constitution does not contain an explicit reporter’s "shield" or privilege law provision, in the case of Hudok, the Supreme Court of Appeals of West Virginia articulated a qualified privilege for reporters, citing Article III, § 7 of the West Virginia Constitution, in addition to the First Amendment to the United States Constitution and the Branzburg standard, as the bases for the qualified reporter's privilege. Article III, § 7 of the West Virginia Constitution states, in pertinent part:

"No law abridging the freedom of speech, or of the press, shall be passed."

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C. Federal constitutional provision

The qualified reporter's privilege in West Virginia is based on the Branzburg standard and the state Supreme Court's application of the First Amendment to the United States Constitution, as explained in Hudok. The state Supreme Court reaffirmed the Hudok holding in State ex rel. Charleston Mail Ass'n v. Ranson, 200 W.Va. 5, 25 Media L. Rep. 2166, 60 A.L.R.5th 827, 488 S.E.2d 5 (1997) and State ex rel. Lincoln Journal, Inc. v. Hustead, 228 W. Va. 17, 19, 716 S.E.2d 507, 509 (2011).

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D. Other sources

This section is blank.

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III. Scope of protection

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A. Generally

The constitutional protection afforded reporters in West Virginia is good and fairly strong in civil cases, although the privilege is not absolute. As explained by the state Supreme Court in Hudok, in civil cases where the reporter is not a defendant, the burden on a party seeking to compel information or testimony from a reporter is very heavy: a party seeking to compel information from a reporter must show "clearly and specifically" that the information sought from the reporter is (1) "highly material and relevant, necessary or critical to the maintenance of the case"; and (2) "not obtainable from other available sources." 389 S.E.2d at 191. The constitutional privilege articulated in Hudok applies to any and all information acquired by the reporter in the news-gathering process. The application of the privilege is somewhat less strong in libel cases, especially where the reporter is a defendant, and also in criminal cases and grand jury investigations. (However, the reporter’s privilege in West Virginia is now stronger when the identity of a confidential source is sought.)

In regard to confidential sources and information that may identify confidential sources, the statutory Reporter’s Privilege, W.Va. Code § 57-3-10, applies very broadly, to any case, civil or criminal, to prevent compelled disclosure of a confidential source in any instance where the source has not consented to disclosure. The only exceptions to this statutory privilege are instances where the party seeking the information from a reporter can show the disclosure is necessary to prevent imminent death, serious bodily injury or unjust incarceration.

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B. Absolute or qualified privilege

The reporters' privilege is a qualified one in West Virginia, under both the constitutional protections articulated in Hudok and the protections of the Reporter’s Privilege statute, W.Va. Code § 57-3-10. However, the standard for overcoming the statutory privilege from compelled disclosure of the identity of a confidential source (or information that would identify a confidential source) is different from the constitutional and common law privilege applied to all other information acquired by the reporter in the news-gathering process. If the information sought from a reporter concerns a confidential source, the statutory reporter’s privilege applies and may be overcome only upon a showing that such testimony or information is necessary to prevent imminent death, serious bodily injury or unjust incarceration. Thus, although the privilege in West Virginia against compelled disclosure of the identity of a confidential source is not absolute, the qualified protection afforded such information in civil cases under the reporters’ privilege statute, W.Va. Code § 57-3-10, is extremely strong.

Apart from the identity of confidential sources, under Hudok the level of protection for a reporter’s news-gathering information, whether the information was published or unpublished, generally is high. It can be overcome only upon a showing, made "clearly and specifically," that the information sought from the reporter is (1) "highly material and relevant, necessary or critical to the maintenance of the case"; and (2) "not obtainable from other available sources." 389 S.E.2d at 191. Thus, the general burden on a party in a civil case seeking information from a non-party reporter is very high.

Under Hudok, the reporter’s privilege protection is somewhat less strong where the reporter is named as a defendant in a civil case and is alleged to have committed libel.

Also pursuant to Hudok, unlike the strong protections in most civil cases, the reporter’s privilege protection is lower in a criminal proceeding if unpublished, nonconfidential information is sought. While there is no West Virginia caselaw directly on point, language in the Hudok case suggests reporters have very little, if any, protection from compelled disclosure of such information when subpoenaed to testify before a grand jury, at least in instances, "where the reporter has personal knowledge or is aware of confidential sources that bear on the criminal investigation[.]" 389 S.E.2d at 193. Nevertheless, because the West Virginia Supreme Court of Appeals never has been presented that issue directly, the level of protection afforded reporters in West Virginia grand jury proceedings (where information other than that related to a confidential source is concerned) still may be an open question.

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C. Type of case

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1. Civil

In a West Virginia civil case where information is sought from a reporter that may identify a confidential source, the Reporters’ Privilege statute, W.Va. Code § 57-3-10, applies. Under that law, no reporter may be compelled to testify concerning the confidential source of any published or unpublished information obtained by the reporter in the course of news gathering activities or produce any information or testimony that would identify a confidential source, without the consent of the confidential source, unless there is a showing that such testimony is necessary to prevent imminent death, serious bodily injury or unjust incarceration.

When information unrelated to the identity of a confidential source is sought from a reporter in most other civil cases, the level of protection afforded the reporter in West Virginia, while not quite as strong, is nevertheless good. As stated by the state Supreme Court of Appeals in Hudok, the party seeking to compel information from a reporter generally must show "clearly and specifically" that the information sought from the reporter is (1) "highly material and relevant, necessary or critical to the maintenance of the case"; and (2) "not obtainable from other available sources." Thus, the burden on a party in a civil case seeking information from a non-party reporter is very high.

As for cases where the reporter has been sued for libel, the Hudok court suggested a lower level of source protection would be available. The Hudok court cited to Zerelli v. Smith, 656 F.2d 705, 714 (D.C. Cir. 1981), stating that "[w]here the reporter is a party, and particularly in a libel action, 'the equities weigh somewhat more heavily in favor of disclosure.'" 182 W. Va. at 504. The Hudok court specifically noted the Zerelli court's holding that this would be "particularly true in libel cases involving public officials or public figures where the rule of New York Times Co. v. Sullivan, 376 U.S. 254 (1964), applies." Id. at n.10.

However, in a 2011 libel case against a newspaper, the West Virginia Supreme Court reversed a trial court order directing disclosure of confidential source and news gathering materials. See State ex rel. Lincoln Journal, Inc. v. Hustead, 228 W. Va. 17, 23, 716 S.E.2d 507, 513 (2011). There, the Supreme Court applied the standards articulated in Hudok and directed the trial court to hold a “specific Hudok hearing” in which the court separately identified each alleged defamatory article with specificity, identified each source that the plaintiffs sought, and then conducted a separate Hudok analysis for each. Id. at 25–26.

The Hudok court explained the reporters' privilege as balancing the constitutional interests of a free press ("'a robust, unfettered, and creative press is indispensable to government by free discussion and to the intelligent operation of a democratic society'") with "a vital societal need for information." 182 W. Va. At 504–05.

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2. Criminal

In criminal cases (including grand jury proceedings), the Reporters’ Privilege statute, W.Va. Code § 57-3-10, applies. Under this law, no reporter may be compelled to testify concerning the confidential source of any published or unpublished information obtained by the reporter in the course of news gathering activities, or to produce any information or testimony that would identify a confidential source, without the consent of the confidential source, unless such testimony is necessary to prevent imminent death, serious bodily injury or unjust incarceration.

The only West Virginia criminal case discussing a reporter's privilege, State ex rel. Charleston Mail Ass'n v. Ranson, 200 W.Va. 5, 488 S.E.2d 5 (1997), was decided before passage of the Reporter’s Privilege law, W.Va. Code § 57-3-10. That court held that a subpoena to a reporter in a criminal case is treated differently than a subpoena to a reporter in a civil case, at least when the subpoena issues from a criminal defendant. The court agreed that a qualified privilege still exists for reporters in criminal cases, but slightly lowered the standard for breaching the privilege because of a criminal defendant’s Sixth Amendment rights. The court stated: "On the one hand, the First Amendment to the United States Constitution and Section 7 of Article III of the West Virginia Constitution guarantee freedom of speech and press. On the other hand, the Sixth Amendment to the United States Constitution and Section 14 of Article III of the West Virginia Constitution ensure that a criminal defendant will have a fair trial." State ex rel. Charleston Mail Ass'n v. Ranson, 488 S.E.2d at 10.

In the Ranson case, a criminal defendant accused of murder and arson served subpoenas duces tecum requesting unpublished photographs of the crime scene taken by two newspapers' photographers. The newspapers both moved to quash the subpoenas, and their motions were denied. The state Supreme Court of Appeals reversed and created a specific standard applicable only to criminal cases where "[u]npublished, nonconfidential information" is sought from a reporter. Specifically, the court recognized the reporter's qualified privilege and explained that the privilege could be breached only as follows:

The court did not explain the rather vague standard of particularity, requiring only "some explanation by the defendant as to what information he/she expects the media material to contain." One Justice on the Court dissented and stated that he would hold that the reporter's information to be absolutely privileged: "I strongly believe the First Amendment of the United States Constitution and Article III, Section 7 of the West Virginia Constitution absolutely bar this type of intrusion by the government into the files of a private company." State ex rel. Charleston Mail Ass'n v. Ranson, 488 S.E.2d at 13 (Maynard, J., dissenting).

The majority of the court went on to explain that "[o]nce a criminal defendant has shown with particularity that the unpublished, nonconfidential information requested from a news source satisfies the three-part threshold balancing test, the circuit court shall conduct an in camera review of the requested material and release to the defendant only that information which the court deems to be relevant to the defendant's articulated theory or theories of defense." The court specifically rejected the idea that a criminal defendant could embark on a "fishing expedition" to obtain information from a reporter but appears to have left to the trial judge the task of determining whether the reporter's information is "relevant to the defendant's articulated theory or theories of defense." The court did not articulate a standard for determining whether the reporter's information is "relevant" to the defense theories.

Thus, although it appears the standard in West Virginia for breaching a reporter's qualified privilege in a criminal case is slightly lower than in a civil case, the burden in both instances is on the subpoenaing party to prove the facts and circumstances for breaching the privilege, rather than on the reporter to prove the privilege applies.

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3. Grand jury

In grand jury proceedings where the government seeks to compel a reporter to provide information that may identify a confidential source, the Reporters’ Privilege statute, W.Va. Code § 57-3-10, applies. Under this law, no reporter may be compelled to testify concerning the confidential source of any published or unpublished information obtained by the reporter in the course of news gathering activities, or to produce any information or testimony that would identify a confidential source, without the consent of the confidential source, unless such testimony is necessary to prevent imminent death, serious bodily injury or unjust incarceration.

As to information unrelated to the identity of a confidential source, there are no West Virginia cases directly on point addressing a reporter's privilege in the grand jury context. Nevertheless, the Hudok court acknowledged that a reporter's privilege "will yield in proceedings before a grand jury where the reporter has personal knowledge . . . that bear on the criminal investigation[.]" The Hudok court cited with approval the United States Supreme Court's decision in Branzburg v. Hayes, 408 U.S. 665 (1972), and particularly, that court's explanation of "the obvious public importance of effective criminal investigation and the duty of citizens to furnish to a grand jury relevant information regarding criminal activity of which they are knowledgeable." Hudok, 389 S.E.2d at 191. Although there are no West Virginia cases directly addressing subpoenas to reporters in the grand jury context, it appears that the privilege will give way more readily in the context of a grand jury than in any other type of proceeding.

Nevertheless, the Hudok court did quote from Justice Powell's concurrence in Branzburg, where Justice Powell spoke to the "'limited nature of the Court's holding. The Court does not hold that newsmen, subpoenaed to testify before a grand jury, are without constitutional rights with regard to the gathering of news or in safeguarding their sources.' 408 U.S. at 709. He outlined a balancing test and concluded that if a newsperson 'is called upon to give information bearing only a remote and tenuous relationship to the subject of the investigation,' he would be entitled to First Amendment protection. 408 U.S. at 710." 389 S.E.2d at 190 n.4. The foregoing quotation by the Hudok court suggests that, if called upon to address the issue of a reporters' privilege in the face of a grand jury subpoena, the West Virginia courts will give a greater amount of deference to a grand jury subpoena than to other types of subpoenas, but such deference will not eviscerate entirely the reporters' privilege, especially in cases where the information sought from the reporter has only a remote or tenuous relationship to the grand jury investigation.

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D. Information and/or identity of source

W.Va. Code § 57-3-10 applies to circumstances where information concerning the identity of a reporter’s confidential source is concerned. The reporter’s protection from compelled disclosure under the statute, regardless of the type of proceeding, is very high. A reporter cannot be compelled to identify a confidential source or produce information from which a confidential source may be identified without the consent of the confidential source, unless such testimony is necessary to prevent imminent death, serious bodily injury or unjust incarceration.

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E. Confidential and/or nonconfidential information

The Hudok court concluded that the reporters' qualified privilege applied equally to both confidential and non-confidential information obtained by the reporter in his/her newsgathering role. Thus, the Hudok test applies to both “confidential sources” and “newsgathering materials,” and the party seeking to compel such information in a civil case generally must show "clearly and specifically" that the confidential information sought from the reporter is (1) "highly material and relevant, necessary or critical to the maintenance of the claim"; and (2) "not obtainable from other available sources." 389 S.E.2d at 193. Thus, the burden on a party in a civil case seeking confidential and non-confidential newsgathering information from a non-party reporter, although not absolute, still is quite high. See also State ex rel. Lincoln Journal, Inc. v. Hustead, 228 W. Va. 17, 26, 716 S.E.2d 507, 516 (2011) (applying Hudok and remanding case back to the circuit court for a “specific Hudok hearing”).

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F. Published and/or non-published material

The Hudok court held that the privilege applies equally to published and unpublished information. Thus, whether or not the material sought by subpoena has been published, the Hudok test applies with equal force, and the party seeking to compel the information in a civil case generally must show "clearly and specifically" that the confidential information sought from the reporter is (1) "highly material and relevant, necessary or critical to the maintenance of the case"; and (2) "not obtainable from other available sources." 389 S.E.2d at 193. Thus, the burden on a party in a civil case seeking information from a non-party reporter, whether the information is published or unpublished, although not absolute, is equally strong and protective.

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G. Reporter's personal observations

In general, the law in West Virginia does not differ in its treatment of the privilege on the basis of whether or not the information was obtained by the reporter as an eyewitness. However, it should be remembered that the likelihood of overcoming the privilege is much higher if the party issuing the subpoena can show the reporter is an eyewitness to crucial information, and the reporter is the only source of that crucial information. In this regard, the Hudok court explained a narrow exception to the reporters’ privilege under such circumstances as follows:

"We recognize that there may be those occasions when a newsperson is the only individual with credible evidence that bears upon an important issue in civil litigation. In this situation, there may be no alternative under principles of due process other than to require such testimony. This narrow rule is justified by the fact that the media is given broad access to accident scenes as well as to the inner offices of government buildings and other places where they may be the only witnesses to a crucial statement or event."

389 S.E.2d at 193. The corollary to the foregoing is that, if the information sought by the party issuing the subpoena can be obtained from any other source, the privilege will protect the reporter from being forced to testify or disclose information. It is only when the reporter is the only person with information or knowledge that this exception would apply. There have been no West Virginia cases where this exception to the reporters’ privilege has been applied.

It also should be noted that the mere fact of an individual's occupation as a reporter does not protect information obtained unless the individual is performing a journalistic function. As the Hudok court stated: "where the reporter is not engaged in the news-gathering function, he is subject to giving testimony as to what he observed to the same extent as any other witness." So if the reporter is simply a bystander to an event--and not acting as a reporter, no privilege or protection from disclosure would apply.

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H. Media as a party

In West Virginia, the privilege recognized by the Hudok court applies with less force in libel cases (especially where a press entity is a party). The important distinction does not appear to be based solely on the reporter or press entity's status as a defendant but on whether the claim made is one for libel. Presumably, where a reporter's published work has led to a libel claim, even where the reporter is not a defendant in the lawsuit, a lower level of protection applies. In distinguishing libel cases, the Hudok court compared the application of the qualified privilege in different types of proceedings. It held that the reporter's privilege "will yield in proceedings before a grand jury where the reporter has personal knowledge or is aware of confidential sources that bear on the criminal investigation," but in civil cases, the privilege will be "more vigorously applied . . . except [to] those in the libel area." 389 S.E.2d at 193. The basis for the foregoing was the Hudok court's reliance on Zerilli v. Smith, 656 F.2d 705, 712 (D.C. Cir. 1981), where the D.C. Court of Appeals "recognized the distinction between civil actions in which the reporter is a party and those in which he is not. Where the reporter is a party, and particularly in a libel action, 'the equities weigh somewhat more heavily in favor of disclosure.' 656 F.2d at 714." See State ex rel. Lincoln Journal, Inc. v. Hustead, 228 W. Va. 17, 26, 716 S.E.2d 507, 516 (2011) (remanding case to the circuit court for a “specific Hudok hearing”).

Notably, however, Hustead was decided prior to the enactment of W.Va. Code § 57-3-10, which recognizes protections against compelled disclosure of confidential sources, regardless of whether the press is a defendant or a reporter is subpoenaed in the context of a libel case.

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I. Defamation actions

In West Virginia, there have been no cases addressing penalties for noncompliance in a libel case. From the Hudok case, it is known that a qualified privilege does exist in West Virginia, even in libel cases. See State ex rel. Lincoln Journal, Inc. v. Hustead, 228 W. Va. 17, 26, 716 S.E.2d 507, 516 (2011).Nevertheless, the reporter’s privilege in West Virginia is not as strong in defamation cases as in other civil claims. Stated another way, the burden a litigant must meet to overcome the reporter's privilege is less in cases where defamation or libel is alleged. Although the Hudok court did not delineate the boundaries of the privilege in the defamation context, it did cite to Zerilli v. Smith, which held that "in a libel action, 'the equities weigh somewhat more heavily in favor of disclosure.'" 389 S.E.2d at 192 (citing Zerilli, 656 F.2d at 714). In a footnote, the Hudok court observed the Zerilli court's additional discussion of the weight toward disclosure to be, "particularly true in libel cases involving public officials or public figures where the rule of New York Times Co. v. Sullivan, 376 U.S. 254 (1964), applies." 389 S.E.2d at 192 n.10.

The Hudok case further noted that "the United States Supreme Court in Herbert v. Lando, 441 U.S. 153 (1979), considered at some length the related question of the extent to which the plaintiff, a public figure, could, through discovery in a libel action, explore the motives and the editorial process of the press persons who had produced an alleged defamatory article." 389 S.E.2d at 192 n.10. Indeed, in Herbert, the United States Supreme Court rejected the argument that the press has an absolute privilege protecting it from inquiries into the editorial process in cases where a public figure has alleged malice. Nevertheless, the Herbert Court recognized that its holding was "not to say that the editorial discussions or exchanges have no constitutional protection from casual inquiry. There is no law that subjects the editorial process to private or official examination merely to satisfy curiosity or to serve some general end such as the public interest; and if there were, it would not survive constitutional scrutiny as the First Amendment is presently construed." 441 U.S. at 174.

Hudok was not a libel case, and it left the exact parameters of the qualified privilege in libel cases largely undefined. In State ex rel. Lincoln Journal, Inc. v. Hustead, 228 W. Va. 17, 26, 716 S.E.2d 507, 516 (2011), the West Virginia Supreme Court of Appeals applied Hudok in a defamation case and remanded the case back to the circuit court for a “specific Hudok hearing.”

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IV. Who is covered

“[A] person who regularly gathers, prepares, collects, photographs, records, writes, edits, reports, or publishes news or information that concerns matters of public interest for dissemination to the public for a substantial portion of the person's livelihood, or a supervisor, or employer of that person in that capacity: Provided, That a student reporter at an accredited educational institution who meets all of the requirements of this definition, except that his or her reporting may not provide a portion of his or her livelihood, meets the definition of reporter for purposes of this section.”

Id.; see generally Ramezan v. Hough, 2015 WL 5331810, at *1 (W. Va. 2015) (noting that “the circuit court first determined that petitioner’s tax records were irrelevant to the determination of whether petitioner could exercise the statutory privilege West Virginia Code § 57–3–10 affords to news reporters and, therefore, petitioner did not have to produce those records. Second, the circuit court found that petitioner was a “reporter” within the meaning of West Virginia Code § 57–3–10 and was able to exercise the privilege and protect the identity of his source.”).

No West Virginia case directly addresses to whom the reporter's privilege applies outside of the statute’s limited application to confidential sources and information from which the identity of a confidential source may be disclosed. In the Hudok case, however, the court observed in a footnote that "[t]he question of what type of activities make a person a journalist and what type of material is covered as news gathering is discussed in Von Bulow by Auersperg v. Von Bulow, 811 F.2d 136 (2d Cir.), cert. denied, 481 U.S. 1015 (1987)." 389 S.E.2d at 191 n.7. The Von Bulow court explained the foregoing broad criteria for determining who is covered by a reporter's privilege:

"We discern certain principles which we must use in determining whether, in the first instance, one is a member of the class entitled to claim the privilege. First, the process of newsgathering is a protected right under the First Amendment, albeit a qualified one. This qualified right, which results in the journalist's privilege, emanates from the strong public policy supporting the unfettered communication of information by the journalist to the public. Second, whether a person is a journalist, and thus protected by the privilege, must be determined by the person's intent at the inception of the information-gathering process. Third, an individual successfully may assert the journalist's privilege if he is involved in activities traditionally associated with the gathering and dissemination of news, even though he may not ordinarily be a member of the institutionalized press. Fourth, the relationship between the journalist and his source may be confidential or nonconfidential for purposes of the privilege. Fifth, unpublished resource material likewise may be protected."

811 F.2d at 142. Thus, who is covered by the reporters’ privilege under Hudok appears to depend upon the person's intent at the inception of the information-gathering process and whether the person is involved in activities traditionally associated with the gathering and dissemination of news, but is not dependent on whether the person is a member of the “institutionalized” press.

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A. Statutory and case law definitions

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1. Traditional news gatherers

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a. Reporter

The Reporters’ Privilege statute, W.Va. Code § 57-3-10, defines who is a “reporter” entitled to the statutory privilege to be protected from compelled disclosure of confidential sources or information that may be used to identify a confidential source. In the statute, a "Reporter" means “a person who regularly gathers, prepares, collects, photographs, records, writes, edits, reports, or publishes news or information that concerns matters of public interest for dissemination to the public for a substantial portion of the person's livelihood, or a supervisor, or employer of that person in that capacity: Provided, That a student reporter at an accredited educational institution who meets all of the requirements of this definition, except that his or her reporting may not provide a portion of his or her livelihood, meets the definition of reporter for purposes of this section.” See generally Ramezan v. Hough, 2015 WL 5331810, at *1 (W. Va. 2015) (“[T]he circuit court first determined that petitioner’s tax records were irrelevant to the determination of whether petitioner could exercise the statutory privilege West Virginia Code § 57–3–10 affords to news reporters and, therefore, petitioner did not have to produce those records. Second, the circuit court found that petitioner was a “reporter” within the meaning of West Virginia Code § 57–3–10 and was able to exercise the privilege and protect the identity of his source.”).

As for the definition of a “reporter” outside the confidential source context, the Hudok court's citation to the Von Bulow case, and the Von Bulow court's elaboration on the criteria used to determine whether one is a member of the class entitled to claim the reporter's privilege is the only guidance in West Virginia in this area. See “Who is covered” above.

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b. Editor

An “editor” is covered by the Reporters’ Privilege statute, W.Va. Code § 57-3-10 and is entitled to the protections of the privilege in the confidential source context. In regard to news gathering materials unrelated to a confidential source, the Hudok court cited to the Von Bulow case for its elaboration on the criteria used to determine whether one is a member of the class entitled to claim the reporter's privilege. See “Who is covered” above. There is no law or statute that formally defines who qualifies as an "editor," but it would seem logical that a news editor would be covered.

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c. News

The Hudok court stated only that "the general rule is that a qualified First Amendment privilege is available to the news-gathering material whether confidential, published, or not published." It seems self-evident that, to be protected, the information must be part of the news-gathering process; however, no further definition of "news" is found in a statute or the caselaw.

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d. Photo journalist

A photographer is covered by the Reporters’ Privilege statute, W.Va. Code § 57-3-10 and is entitled to the protections of the privilege in the confidential source context. In regard to news gathering materials unrelated to a confidential source, the Hudok court cited to the Von Bulow case for its elaboration on the general criteria used to determine whether one is a member of the class entitled to claim the reporter's privilege. See “Who is covered” above. There is no law or statute that formally defines who qualifies as a "photojournalist." However, from the Charleston Mail Ass'n v. Ranson, 488 S.E.2d 5, case it is clear that news photographers and their photographs are covered by the privilege.

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e. News organization/medium

In West Virginia, the reporter's privilege does not distinguish between different types of media (i.e., newspaper, magazine, broadcast outlet, or Internet Web site). A news organization is covered by the Reporters’ Privilege statute, W.Va. Code § 57-3-10 and is entitled to the protections of the privilege in the confidential source context. In regard to news gathering materials unrelated to a confidential source, the Hudok court cites to the Von Bulow case and its elaboration on the general criteria used to determine whether one is a member of the class entitled to claim the reporter's privilege. See “Who is covered” above. This is the only guidance available in this area.

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2. Others, including non-traditional news gatherers

In West Virginia, the reporter's privilege laws do not distinguish -- either by statutory language or by case law -- between traditional and so-called "non-traditional" news gatherers. There is no statute or case law addressing whether such non-traditional news gatherers as authors, freelancers, students, unpaid news gatherers, or academic researchers are entitled to the privilege, nor is there any statute or case law addressing whether others connected to the news process, such as newspaper librarians, may assert the privilege. The Hudok court cites to the Von Bulow case and its elaboration on the general criteria used to determine whether one is a member of the class entitled to claim the reporter's privilege. See “Who is covered” above. The Von Bulow court stated that coverage depends upon the person's intent at the inception of the information-gathering process, and whether the person is involved in activities traditionally associated with the gathering and dissemination of news, not whether the person is a member of the institutionalized press. There is no other guidance available on this topic.

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B. Whose privilege is it?

No case or statute in West Virginia addresses whether the privilege belongs to the source, the reporter, and/or the employer. On the other hand, both reporters and their employers (i.e., press organizations) have successfully asserted the privilege in West Virginia. The Reporter’s Privilege statute, W.Va. Code § 57-3-10, requires as a prerequisite to its application that a confidential source has not given consent to disclosure of the source’s identity.

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V. Procedures for issuing and contesting subpoenas

In West Virginia, there are no special legal procedures required to serve a subpoena on a member of the press.

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A. What subpoena server must do

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1. Service of subpoena, time

In West Virginia, service of subpoenas in civil cases is governed by Rule 45 of the West Virginia Rules of Civil Procedure, and in criminal cases, service of subpoenas is governed by Rule 17 of the Rules of Criminal Procedure. There are no special requirements that must be met to serve a subpoena on a member of the press. Rule 45 states that a subpoena can be quashed or modified if it "fails to allow reasonable time for compliance[.]" Although the rules do not specify a number of days in advance of the appearance requested in the subpoena that the subpoena must be served, the amount of time is somewhat discretionary with the court. It should be noted that the West Virginia Supreme Court has quashed a subpoena served only four (4) days or so prior to trial on the basis that the service was not "diligent." Blankenship v. Mingo Cnty. Econ. Opportunity Comm'n, Inc., 187 W.Va. 157, 416 S.E.2d 471, 476 (1992). Rule 45 allows a party fourteen (14) days to object to a subpoena duces tecum, but allows less time to object if the subpoena specifies less time to respond.

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2. Deposit of security

West Virginia law does not require that the subpoenaing party deposit any security in order to procure the testimony or materials sought from the reporter. However, for a deposition or in-court testimony, Rule 45(b)(1) of the West Virginia Rules of Civil Procedure requires that a subpoenaing party must tender "fees for one days attendance and the mileage allowed by law" if the subpoenaed party so demands. If request for such payment is made, but the payment is not presented, the subpoena is ineffective.

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3. Filing of affidavit

In West Virginia, the reporters' privilege does not require the subpoenaing party to make a sworn statement in order to procure the reporter's testimony or materials. Practically speaking, however, the subpoenaing party is required to prove the elements outlined in the Hudok case if a motion to quash the subpoena is made by the reporter. The subpoenaing party responding to a motion to quash would have to meet the standard set forth in Hudok and show "clearly and specifically" that the information sought from the reporter is (1) "highly material and relevant, necessary or critical to the maintenance of the case"; and (2) "not obtainable from other available sources." 389 S.E.2d at 193. Whether or not an affidavit would be sufficient to meet the foregoing standard has never been addressed, and at least one case speaks to the circuit court holding a “special Hudok hearing” which suggests in-court testimony is necessary to overcome the reporters’ privilege protections articulated in Hudok. State ex rel. Lincoln Journal, Inc. v. Hustead, 228 W. Va. 17, 26, 716 S.E.2d 507, 516 (2011) (applying Hudok in a defamation case and remanding the case back to the circuit court for a “specific Hudok hearing”)

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4. Judicial approval

In West Virginia, a lawyer may issue and sign a subpoena as an officer of the court. W.Va.R.Civ.P 45(a)(3). A judge or magistrate need not approve a subpoena before a party can serve it.

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5. Service of police or other administrative subpoenas

Although there are no cases directly discussing special criteria for issuance of an administrative subpoena to a journalist, generally speaking, there are special rules regarding the use and service of other administrative subpoenas. Regarding the use of such subpoenas, the subject or target of an administrative subpoena has an opportunity to challenge the subpoena before yielding that information. In the course of that resistance, privileges, privacy rights and the unreasonableness of an administrative subpoena are available defenses against enforcement of the subpoena. State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12, 17-18 (1996).

The requirements for the enforcement of an administrative subpoena are "tightly drawn." Generally, in order to obtain judicial enforcement of an administrative subpoena, the burden is on the agency to prove that (1) the subpoena is issued for a legislatively authorized purpose, (2) the information sought is relevant to the authorized purpose, (3) the information sought is not already within the agency's possession, (4) the information sought is adequately described, and (5) proper procedures have been employed in issuing the subpoena. When the subpoena is issued to a member of the press, the Hudok protections also would apply.

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B. How to Quash

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1. Contact other party first

If a subpoena is issued during the discovery phase of a civil case, it is governed by Rule 26(c) of the West Virginia Rules of Civil Procedure. That Rule requires a party seeking a protective order, i.e., an order that the discovery sought by the subpoenaing party not be allowed, to "confer with other affected parties in an effort to resolve the dispute without court action[.]" Before a motion is filed to stop or quash a discovery subpoena, the party seeking to stop the subpoena must certify to the court that a good faith effort to confer has been made.

Pragmatically, it is a good idea to contact the lawyer for the subpoenaing party prior to filing a motion for a number of reasons. First, it is not unusual for the subpoenaing party to accept a short affidavit simply authenticating a specific published news story in lieu of compliance with the subpoena. It also allows for an opportunity to educate the subpoenaing party's lawyer on the broad parameters of the protections of West Virginia's reporters' privilege, of which they may be unaware. Finally, even if the subpoenaing party's lawyer refuses to withdraw the subpoena, it is helpful to try to learn exactly what the lawyer is seeking from the reporter. It is not uncommon for the opposing lawyer to give you as much information as you ask for in an effort to persuade the press target to comply with the subpoena. Then, if a motion to quash is necessary, it can be more easily explained to the court why it should be quashed. It is not unusual to discern from such discussions that counsel for the subpoenaing party is attempting to use the reporter to do his discovery for him or is undertaking an impermissible "fishing expedition."

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2. Filing an objection or a notice of intent

In West Virginia, there is no requirement that a notice of intent to quash be filed before the motion to quash. Beyond certifying that you have in good faith conferred or are attempting to confer with the counsel for the subpoenaing party, there are no further procedural steps required prior to moving to quash the subpoena to the reporter.

Where only documents are sought by the subpoena, service of an objection (as opposed to a motion to quash) is sufficient. Rule 45(d)(2)(B) of the Rules of Civil Procedure states that when documents are sought by a subpoena, the subpoenaed party "may, within 14 days after service of the subpoena or before the time specified for compliance if such time is less than 14 days after service, serve upon the party or attorney designated in the subpoena written objection to inspection or copying of any or all of the designated materials or of the premises." The act of serving the objection prohibits the party serving the subpoena from inspecting or copying the materials "except pursuant to an order of the court by which the subpoena was issued." To overcome the objection, the party serving the subpoena must first move the court to compel compliance with the subpoena; of course, notice of the motion to the person subpoenaed, and of the time and place of any hearing must be given.

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3. File a motion to quash

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a. Which court?

If the subpoena is issued under the auspices of a West Virginia state court, the motion to quash the subpoena usually must be filed in the court hearing the case at issue. However, if the subpoena is for attendance at a discovery deposition, the motion can be brought either in the county where the case at issue is pending, or in the county where the deposition is to be taken, pursuant to Rule 26(c) of the West Virginia Rules of Civil Procedure. It should be remembered that a subpoena can compel the attendance of a witness at a discovery deposition only if the deposition is to take place in the county where the deponent resides, and it could be of benefit to file a motion to quash in the reporter's home county if that is different from the county where the case in which the subpoena originated is pending.

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b. Motion to compel

In West Virginia, it is advisable that a member of the press who resists or intends to resist a subpoena should not wait for the subpoenaing party to file a motion to compel before filing a motion to quash. Such a tactic could turn the court against the reporter, and could result in sanctions, such as costs and attorney fees. The better strategy is to move to quash the subpoena as soon as practicable after the subpoena is served if conferring with the attorney does not lead to an agreement for its withdrawal.

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c. Timing

The filing of a motion to quash effectively stays the requirements of the subpoena. Pursuant to Rule 45(d)(B) of the West Virginia Rules of Civil Procedure, the person to whom the subpoena is directed has fourteen (14) days after service of the subpoena (or before the time specified for compliance if such time is less than fourteen (14) days) to respond with a written objection. If an objection is made, the party serving the subpoena is not entitled to the requested information except pursuant to an order issued by the court that issued the subpoena. The party serving the subpoena could then make a motion to compel.

In the case of a civil discovery subpoena, it is preferable to file an objection or motion to quash far enough in advance of the time of compliance directed by the subpoena so that the subpoenaing party does not suffer undue expense as a result. Pragmatically, this usually can be accomplished simply by contacting the subpoenaing party's lawyer and explaining that you will be filing the motion to quash, and therefore the subpoena will not be complied with unless or until a court so orders. If for some reason the opposing counsel is unreachable, the motion to quash a discovery subpoena can be filed and served on opposing counsel at least a full day before a discovery deposition. In the case of a trial or hearing subpoena requiring the reporter to appear in court, it is important to file the motion far enough in advance so that the court has sufficient time to review it, and so that you can schedule a hearing on the motion. If possible, the motion and the hearing on the motion should be noticed at least ten days prior to the hearing. If that is not possible, filing the motion quickly is all the more important.

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d. Language

West Virginia Rule of Civil Procedure 45(d)(3)(A) governs motions to quash or modify a subpoena. Pursuant to that Rule, a subpoena may be modified or quashed if it (i) fails to allow a reasonable time for compliance; (ii) requires a person to travel for a deposition to a place other than a county in which that person resides or is employed or transacts business in person; (iii) requires disclosure of privileged or other protected matter and no exception or waiver applies; or (iv) subjects a person to “undue burden.” For the purposes of filing the motion to quash, there is no stock language necessary. Indeed, the motion itself can be quite brief, although it is often preferable to file a memorandum going into some detail about the contours of the privilege. It should be remembered that in West Virginia, trial judges are not accustomed to regularly addressing issues concerning the reporters' privilege and its First Amendment implication, and often a detailed but concise explanation of the application of the privilege will be helpful to the success of the motion.

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e. Additional material

The trial court rules in West Virginia actually require that copies of any case decided by a court other than the West Virginia Supreme Court or the United States Supreme Court and cited in support of a motion, such as a motion to quash, must be attached to the motion. Because of its importance, it often is helpful to attach a copy of the Hudok case for easy access by the trial court.

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4. In camera review

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a. Necessity

The only requirement for an in camera review of a reporter's materials is in the context of a criminal proceeding. Ranson, 488 S.E.2d 5. In Ranson, two newspapers filed motions to quash subpoenas ducus tecum served on them by a criminal defendant who sought unpublished photographs of the crime scene. The court held, as a threshold matter, that the criminal defendant must show, with particularity, that unpublished, nonconfidential material is "highly material and relevant" to the defendant's theory of defense, "necessary or critical" to the defendant's theory of defense, and not obtainable from other available sources. Id. at 7. The criminal defendant further is required to offer more than a "bald assertion" that "the allegedly privileged information satisfies the requisite criteria," but rather, must explain what information he expects the media material to contain. Id. at 12.

Only after the criminal defendant satisfies the threshold balancing test with regard to the unpublished, nonconfidential material, "the circuit court shall conduct an in camera review of the requested material and release to the defendant only that information which the court deems to be relevant to the defendant's articulated theory of defense." Id. at 13. Following the in camera review, the circuit court is then required to make specific written findings of fact.

The Supreme Court of Appeals of West Virginia was specific in addressing only the requirement of an in camera review in the case of non-confidential, unpublished material subpoenaed by a criminal defendant. At present there is no requirement for an in camera review in any other type of situation.

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West Virginia courts have not been confronted with the issue of whether a stay pending appeal should be granted automatically where the reporter consents to an in camera review and, following the review, is ordered to comply with the subpoena or other request for information.

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c. Consequences of refusing

West Virginia courts have not addressed the consequences of a reporter who refuses to consent to an in camera review of requested material. Pragmatically speaking, however, if an interlocutory appeal from an order mandating an in camera review is taken, acceptance of a Petition for Writ of Prohibition by the state Supreme Court effectively operates to stay the order.

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5. Briefing schedule

In West Virginia, there is no briefing schedule specific to a motion to quash (although a written objection to a subpoena should be made within fourteen days of service of the subpoena, or any time before the time set for compliance if the subpoena was served lass than fourteen days prior to the time set for compliance). The Rules of Civil Procedure do require that a motion to quash be “timely.” Generally, the West Virginia Rules of Civil Procedure require all motions to be filed at least 7 days prior to a hearing, if the motion is served by hand delivery or by fax, or 9 days prior to the hearing if it is served by mail. Any response to a motion must be served at least 4 days prior to a hearing, if the response is served by mail, or 2 days before a hearing if served by hand delivery or fax. The rules do not make reference to the time period allowed for the service of a reply to a response to a motion, although replies very commonly are filed. The rules allow the foregoing time periods to be modified by the court.

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6. Amicus briefs

Briefs of amicus curiae often are accepted by the West Virginia Supreme Court of Appeals.

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VI. Substantive law on contesting subpoenas

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A. Burden, standard of proof

In civil and administrative proceedings, a subpoenaing party may overcome the qualified reporter's privilege only if it can make "a clear and specific showing that the information is highly material and relevant, necessary or critical to the maintenance of the claim, and not obtainable from other available sources." Hudok, 389 S.E.2d at 193. In criminal proceedings, a criminal defendant must make a similar showing, "with particularity," as it relates to his theory or theories of defense, meaning, he must explain "what information he/she expects the media material to contain. A mere bald assertion, standing alone, that the allegedly privileged information satisfies the requisite criteria will not suffice. Ranson, 488 S.E.2d at 12. When the subpoenaing party seeks to compel a reporter to disclose the identity of a confidential source, that party has the added burden of proving such testimony or information “is necessary to prevent imminent death, serious bodily injury or unjust incarceration.” W.Va. Code § 57-3-10.

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B. Elements

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1. Relevance of material to case at bar

The subpoenaing party must meet the very high and difficult burden of proving that the information subpoenaed is "highly material and relevant" and "necessary or critical" to the maintenance of the subpoenaing party's claim or defense. Ranson, 488 S.E.2d 5; Hudok, 389 S.E.2d 188.

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2. Material unavailable from other sources

The requested material must not be obtainable from other available sources. Ranson, 488 S.E.2d 5; Hudok, 389 S.E.2d 188. The court in Hudok, recognized there may be a situation where a newsperson is the only individual with credible evidence bearing upon an important issue in a civil case. Consequently, "there may be no alternative under principles of due process other than to require such testimony." 389 S.E.2d at 193. The court explained that "[t]his narrow rule is justified by the fact that the media is given broad access to accident scenes as well as to the inner offices of government buildings and other places where they may be the only witnesses to a crucial statement or event." Id.

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a. How exhaustive must search be?

West Virginia courts have not addressed expressly how exhaustive a subpoenaing party's search for other available sources must be and thus have not formulated any standards for what constitutes "exhaustion." Nevertheless, an exhaustion requirement appears to be implicit within the subpoenaing party’s burden under Hudok to make a clear and specific showing that the information is not obtainable from other available sources. C.f. State ex rel. Lincoln Journal, Inc. v. Hustead, 228 W. Va. 17, 25, 716 S.E.2d 507, 515 (2011) (granting writ prohibiting lower court from compelling disclosure in absence of specific and complete Hudok analysis and declining to rule on respondent’s argument that exhaustion of all alternative remedies is not required prior to compelling disclosure).

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

West Virginia courts have not addressed specifically the standard of proof a subpoenaing party must meet to demonstrate it has conducted a sufficient search outside of subpoenaing the member of the press. Implicit in the West Virginia Supreme Court's decision in Hudok, however, is a requirement of a most comprehensive search--that is, a party seeking to compel information from a reporter generally must show "clearly and specifically" that the information sought from the reporter is (1) "highly material and relevant, necessary or critical to the maintenance of the case" and (2) "not obtainable from other available sources." 389 S.E.2d at 193. The requirement that the unobtainability of the information from other available sources must be shown "clearly and specifically" suggests all other potential sources for the information must be canvassed before a court will allow a subpoena to a reporter to stand.

In the context of a subpoena to produce unpublished, non-confidential information (photographs of a crime scene) in a criminal case, the West Virginia Supreme Court also stated that the "particularity" with which the defendant must satisfy the balancing test contemplates "some explanation by the defendant as to what information he/she expects the media material to contain. A mere bald assertion, standing alone, that the allegedly privileged information satisfies the requisite criteria will not suffice." As part of the foregoing "explanation," it seems obvious that the defendant will have to explain the factual basis for asserting that the requested breach of the reporter's privilege will lead to relevant material not available from other sources. In a revealing footnote, however, the majority of the court cited only to cases where a motion to quash a subpoena for media photographs in a criminal case was denied -- suggesting that under such circumstances the burden of proof on the subpoenaing party is light. Nevertheless, it must be remembered that the court in that case specifically refused to define the contours of the reporters' privilege in other types of factual circumstances, so that holding can be viewed as limited to the specific facts of that case.

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c. Source is an eyewitness to a crime

The Reporters’ Privilege statute, W.Va. Code § 57-3-10, now protects reporters from compelled disclosure of a confidential source (or disclosure of information that could identify a confidential source) in criminal and grand jury proceedings, “unless such testimony is necessary to prevent imminent death, serious bodily injury or unjust incarceration.” Interestingly, the exceptions do not expressly include testimony which would identify the perpetrator of a crime, unless such identification is necessary to prevent unjust incarceration.

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3. Balancing of interests

The essence of the reporter's privilege in West Virginia is the balancing of interests. In some contexts, such as compelled disclosure of a confidential source, or in most any civil case not involving libel claims, the reporter’s interest is given by far the most weight. In other contexts, namely the grand jury context (insofar as the compelled disclosure sought does not concern the identity of a confidential source), the "public interest" in information for the purpose of solving crimes and bringing criminals to justice is given more weight. And in a third context, such as criminal proceedings implicating a defendant's Fifth Amendment rights, or libel cases, the weight given to the reporter versus the weight given the defendant is more equal (again, at least insofar as the compelled disclosure sought does not concern the identity of a confidential source).

In Hudok, 389 S.E.2d at 192, the West Virginia Supreme Court explained the balancing test as follows:

"Courts have been more reluctant to enforce subpoenas against reporters in civil or administrative proceedings. As the court stated in Zerilli v. Smith, 656 F.2d 705, 712 (1981): 'Every other circuit that has considered the question has also ruled that a privilege should be readily available in civil cases, and that a balancing approach should be applied.' Zerilli also recognized the distinction between civil actions in which the reporter is a party and those in which he is not. Where the reporter is a party, and particularly in a libel action, 'the equities weigh somewhat more heavily in favor of disclosure.' 656 F.2d at 714."

In Ranson, 488 S.E.2d at 12, the Supreme Court held as follows in the criminal context:

"When a criminal defendant seeks from a news source unpublished, nonconfidential information, he/she must show with particularity that: (1) the requested information is highly material and relevant to the defendant's articulated theory or theories of his/her defense; (2) the requested information is necessary or critical to the defendant's assertion of his/her articulated theory or theories of defense; and (3) the requested information is not obtainable from other available sources. The "particularity" with which the defendant must satisfy this balancing test contemplates some explanation by the defendant as to what information he/she expects the media material to contain. A mere bald assertion, standing alone, that the allegedly privileged information satisfies the requisite criteria will not suffice. . . . Once a criminal defendant has shown with particularity that the unpublished, nonconfidential information requested from a news source satisfies the three-part threshold balancing test, the circuit court shall conduct an in camera review of the requested material and release to the defendant only that information which the court deems to be relevant to the defendant's articulated theory or theories of defense."

Of course, in any type of proceeding, be it civil, criminal, grand jury or administrative, if the information sought to be compelled would reveal a confidential source who has not consented to disclosure, that disclosure may be compelled only upon a showing that the information to identify the confidential source, “is necessary to prevent imminent death, serious bodily injury or unjust incarceration.” W.Va. Code § 57-3-10.

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4. Subpoena not overbroad or unduly burdensome

In West Virginia, a subpoenaed party generally may move for a protective order in the trial court if the subpoena is overbroad or unduly burdensome. Such motions are governed by the procedural rules. The state Supreme Court has held that Rule 26(b)(1)(iii) of the West Virginia Rules of Civil Procedure allows a trial court to limit discovery if it finds that the discovery sought is unduly burdensome or expensive, taking into account the needs of the case, the amount in controversy, limitations on the parties' resources, and the importance of the issues at stake in the litigation. State ex rel. Arrow Concrete Co. v. Hill, 194 W.Va. 239, 460 S.E.2d 54 (1995); State ex rel. W. Va. Fire & Cas. v. Karl, 202 W.Va. 471, 505 S.E.2d 210 (1998). The trial court should consider several factors. First, the court should weigh the requesting party's need to obtain the information against the burden that producing the information places on the opposing party. This requires an analysis of the issues in the case, the amount in controversy, and the resources of the parties. Second, the opposing party has the obligation to show why the discovery is burdensome unless, in light of the issues, the discovery request is oppressive on its face. Last, the court must consider the relevancy and materiality of the information sought. However, when the privacy rights of non-litigant third parties (such as reporters who are not parties to the case) are concerned, those privacy rights must be balanced with the interests of the requesting litigants. A discovery request also may be denied where the breadth of the information sought would result in the production of material so cumulative as to be inadmissible at trial. State Farm v. Stephens, 188 W.Va. 622, 425 S.E.2d 577 (1992). Also, pursuant to Rule 45(d), "the court by which a subpoena was issued shall quash or modify the subpoena if it . . subjects a person to undue burden."

However, in the context of the reporter’s privilege in West Virginia, news-gathering materials may not be compelled except upon a clear and specific showing that the information is highly material and relevant, necessary or critical to the maintenance of the claim, and not obtainable from other available sources. Therefore, while no caselaw addresses this issue specifically, it would seem logical that only information that falls within the narrow Hudok exception would be subject to compelled disclosure, and to the extent the party seeking disclosure seeks information beyond that which falls within the exception, it would be overly broad.

In criminal cases, Ranson modified the Hudok standards by requiring a criminal defendant to show with particularity that information requested from a news source satisfies the three-part threshold balancing test and that the circuit court conduct an in camera review of the requested material and release to the defendant only that information which the court deems to be relevant to the defendant's articulated theory or theories of defense. More generally, Rule 16(d) of the West Virginia Rules of Criminal Procedure allows a court to regulate discovery in criminal cases.

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5. Threat to human life

The West Virginia’s Reporter’s Privilege statute, W.Va. Code § 57-3-10, mandates that no reporter may be compelled to testify or produce information concerning the identity of a confidential source without the source’s consent, unless such testimony is necessary to prevent imminent death, serious bodily injury or unjust incarceration. There are no cases in West Virginia discussing this issue.

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6. Material is not cumulative

A discovery request may be denied where the breadth of the information sought would result in the production of material so cumulative as to be inadmissible at trial. State Farm v. Stephens, 188 W.Va. 622, 425 S.E.2d 577 (1992). Whether or not the cumulativeness of the material sought would be inadmissible at trial is governed by Rule 403 of the West Virginia Rules of Evidence. Such determinations are usually left to the discretion of the trial court.

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7. Civil/criminal rules of procedure

In a civil case, a subpoenaed party may make a motion to quash the subpoena pursuant to Rule 45 of the West Virginia Rules of Civil Procedure if the subpoena is frivolous or unduly burdensome. The subpoenaed party also may make a motion for a protective order pursuant to Rule 26.

In a criminal case, a subpoenaed party may make a motion to quash the subpoena pursuant to Rule 17(c) of the West Virginia Rules of Criminal Procedure if compliance with the subpoena would be unreasonable or oppressive. The subpoenaed party also may make a motion for a protective order pursuant to Rule 16(d).

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8. Other elements

No other elements.

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C. Waiver or limits to testimony

There is no West Virginia caselaw or statute addressing whether a journalist may be deemed to have waived the privilege. Because the privilege is constitutional in nature, it is likely the privilege may never be deemed to have been waived.

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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

A newsperson is not required to testify in court that a particular article actually appeared in the newspaper in order to authenticate the article. Pursuant to Rule 902(6) of the West Virginia Rules of Evidence, newspapers are self-authenticating and therefore testimony by the author/reporter is unnecessary to authenticate the article for admissibility purposes. If a reporter is subpoenaed for that purpose, the subpoena should be quashed easily.

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B. Broadcast materials

Ordinarily, when broadcast materials are subpoenaed, no personal appearance is necessary in West Virginia.

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C. Testimony vs. affidavits

Although the rules in West Virginia do not specify whether a sworn affidavit may take the place of in-court testimony, litigants have been known to accept such affidavits in return for dropping the personal appearance requirement of the subpoena, especially when the subpoena was issued simply to confirm that an article was true and accurate as published. Thus, it usually is helpful to inquire of the subpoenaing party's counsel whether they will accept an affidavit verifying a news article in lieu of a personal appearance, as oftentimes such an offer will be accepted.

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D. Non-compliance remedies

In West Virginia, there is no special exemption for reporters to protect them from contempt holdings for failing to testify. Thus, if a court finds a reporter in contempt of an order compelling the reporter to testify or produce information, the court has available to it the full range of penalties or remedies to impose on the reporter that it could impose on any other person who fails to comply with a valid, upheld subpoena. However, there are no reported cases where a reporter has been held in contempt for refusing to testify, and the passage of West Virginia’s Reporter’s Privilege statute, W.Va. Code § 57-3-10, likely decreases greatly the chance that such situations will occur.

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1. Civil contempt

In West Virginia, there is no history of reporters being fined or jailed for failure to comply with a subpoena. There is no statute or caselaw specifically addressing contempt proceedings where a reporter refuses to comply with a subpoena. Although Rules 11, 16, and 37 of the West Virginia Rules of Civil Procedure do not formally require any particular procedure before issuing a contempt sanction, a court must ensure it has an adequate foundation either pursuant to the rules or by virtue of its inherent powers to exercise its authority. The Due Process Clause of Section 10 of Article III of the West Virginia Constitution requires that there exist a relationship between the sanctioned party's misconduct and the matters in controversy such that the transgression threatens to interfere with the rightful decision of the case. Thus, a court must ensure any sanction imposed is fashioned to address the identified harm caused by the party's misconduct. In formulating the appropriate sanction, the court must be guided by equitable principles. Initially, the court must identify the alleged wrongful conduct and determine if it warrants a sanction. The court must explain its reasons clearly on the record if it decides a sanction is appropriate. To determine what will constitute an appropriate sanction, the court may consider the seriousness of the conduct, the impact the conduct had in the case and in the administration of justice, any mitigating circumstances, and whether the conduct was an isolated occurrence or was a pattern of wrongdoing throughout the case. Bartles v. Hinkle, 196 W.Va. 381, 472 S.E.2d 827 (1996).

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a. Fines

In West Virginia, there is no history of reporters being fined for failure to comply with a subpoena. There is no specific cap on such fines, and there is no statute or caselaw specifically addressing contempt proceedings where a reporter refuses to comply with a subpoena.

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b. Jail

In West Virginia, there is no history of reporters being jailed for failure to comply with a subpoena. There are no recent examples of reporters who have gone to jail for failure to disclose confidential sources or information, and the passage of West Virginia’s Reporter’s Privilege statute, W.Va. Code § 57-3-10, likely decreases greatly the chance that such situations will occur.

There is no statute or caselaw specifically addressing contempt proceedings where a reporter refuses to comply with a subpoena. Generally, West Virginia Code § 57-5-6 allows a court to sentence a person to remain in jail until "he shall give such evidence or produce such writing or document" as he was summoned and ordered to give. Before such a remedy may be invoked by the court, the court must inform the person that he or she is in contempt. The person is entitled to be present with counsel and to be heard as to why he or she has not complied, and the court must base any decision to jail the person for civil contempt on competent evidence. In re Yoho, 171 W.Va. 625, 301 S.E.2d 581 (1983).

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2. Criminal contempt

There are no known instances of a court sentencing a reporter to a fixed sentence for criminal contempt in failing to comply with a court order to provide information. Such a remedy is highly unusual and unlikely. Nevertheless, conviction for criminal contempt is provided for in West Virginia Code § 61-5-26(d), that allows a court to sentence and/or fine an individual for disobedience to an order of the court. The putative contemnor is permitted a jury trial, but there is no statutory limitation on the amount of the potential fine or the period of incarceration.

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3. Other remedies

In West Virginia, there have been no cases addressing penalties for noncompliance in a libel case. Potentially, in a civil case where the journalist is a party and refuses to comply with an order compelling disclosure of a source or other information, a remedy such as default judgment could be imposed by the court against a media (or any other) defendant. There is no statute or caselaw, however, that allows a court to instruct a jury that there is a "presumption of actual malice" or a presumption that there is no actual source.

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VIII. Appealing

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A. Timing

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1. Interlocutory appeals

Although technically there is no right to an interlocutory appeal, if a motion to quash a subpoena is denied, the reporter may file a Petition for Writ of Prohibition or a Petition for Writ of Mandamus directly in the West Virginia Supreme Court of Appeals. Although such Petitions are deemed "extraordinary" procedures for relief, the state Supreme Court historically has allowed such Petitions in cases involving a reporter's privilege because of the First Amendment constitutional implications. The acceptance of such a Petition acts as an automatic stay of the lower court's ruling. Another procedural mechanism that may be utilized, especially considering the dearth of caselaw in West Virginia concerning the reporter's privilege, is a request to the trial court to "certify" the issue to the state Supreme Court.

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2. Expedited appeals

There is no specific procedure for requesting an expedited appeal. Rule 2 of the Rules of Appellate Procedure allows the state Supreme Court to suspend its usual rules "[i]n the interest of expediting decision, or for other good cause shown[.]" There are no special considerations that affect subpoenas to reporters, other than the fact that Petitions for a Writ of Prohibition or a Writ of Mandamus are more favorably looked upon because of their First Amendment considerations than such Petitions that address other issues. Rule 28(a) of the Rules of Appellate Procedure allows a party petitioning for appeal make an application for a stay of the lower court's order to the circuit court. Rule 28(b) allows a party to then make such an application for a stay to the state Supreme Court if the lower court refuses to grant the stay.

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B. Procedure

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1. To whom is the appeal made?

Appeals are made from the circuit court level directly to the state Supreme Court. There is no intermediate court of appeals in West Virginia. Although it is unlikely that a subpoena would be issued to a reporter in a Magistrate Court proceeding in West Virginia, appeals from Magistrate Court go first to the Circuit Court and then to the state Supreme Court, with the Circuit Court acting as an intermediate appellate court.

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2. Stays pending appeal

A motion for a stay of the proceedings during an appeal must first be made to the circuit court where the judgment or order desired to be appealed from was entered. If the circuit court refuses to grant a stay, the moving party may, upon written notice to the opposite party, apply to the Supreme Court for a stay. The most immediate and effective route of challenging a circuit court's adverse ruling in a reporter's privilege case is by filing an extraordinary writ, such as a Petition for Writ of Prohibition, or a Petition for a Writ of Mandamus, directly with the state Supreme Court. Historically, because of the constitutional issue involved, the state Supreme Court has docketed and agreed to address such petitions in order to vindicate or protect a reporter's privilege or First Amendment rights. The acceptance of the Petition automatically stays the underlying Order being appealed from.

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3. Nature of appeal

The state Supreme Court dockets all timely and properly filed appeals.

A party alternatively may seek extraordinary relief in the Supreme Court by filing a Petition for Writ of Prohibition or for Writ of Mandamus to preclude enforcement of the circuit court's ruling or to compel the court to rule in the correct manner. Petitions for extraordinary writs, such as Prohibition or Mandamus, are discretionary, and pursuant to Rule 16(a) of the Rules of Appellate Procedure, “discretion [is] sparingly exercised.” However, historically, in First Amendment cases, the state Supreme Court has been much more receptive to accepting and docketing an extraordinary writ than in other cases. Therefore, pragmatically speaking, it is almost always beneficial to attempt the route of an extraordinary writ in reporter’s privilege cases in West Virginia, and if the court refuses to docket the writ, a direct appeal still may be made thereafter.

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4. Standard of review

All questions or interpretations of law are subject to a de novo standard of review. Findings of fact made by a jury or a judge sitting as the finder of fact at trial, are reviewed under a "clearly erroneous" standard. However, factual findings made by a lower court (if any) in matters concerning the assertion of a reporters' privilege typically are derived from affidavits or pleadings, and a de novo standard would apply to any such findings made by the lower court.

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5. Addressing mootness questions

West Virginia courts have not had occasion to address "mootness" when a trial or grand jury session for which a reporter was subpoenaed has concluded.

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6. Relief

A reporter's attorney should seek an order from the appellate court ordering the lower court to either grant the reporter's motion to quash and/or prohibiting the lower court from enforcing the subpoena or contempt citation. It is possible that the appellate court will order the trial judge to reconsider the issues at stake in light of the appellate decision, but there is nothing preventing the appellate court from making the decision itself.

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IX. Other issues

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A. Newsroom searches

At present, the federal Privacy Protection Act (42 U.S.C. 2000aa) has not been used in West Virginia. There are no similar provisions under West Virginia state law.

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B. Separation orders

West Virginia case law and statutes do not address separation orders issued against reporters who are both trying to cover the trial and are on a witness list. Anecdotally, this problem has occurred in federal cases in West Virginia, although reporters have resolved the issue by informally persuading the party who named them to remove them from the list. C.f. In re The Wall St. Journal, 601 F. App'x 215, 218 (4th Cir. 2015) (reversing a trial court’s gag and sealing order in a criminal case and holding that the public enjoys a qualified right of access to criminal trials, and to documents submitted in the course of a trial, including documents filed in connection with a motion to dismiss an indictment and other pretrial filings).

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C. Third-party subpoenas

West Virginia courts have not had occasion to address the circumstance where a media entity has an interest in fighting subpoenas issued to third parties in an effort to discover the media's source.

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D. The source's rights and interests

West Virginia courts have not had occasion to address the circumstance where a source seeks to intervene anonymously to halt disclosure of their identity.

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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