1. Civil contempt

Pursuant to Fed. R. Civ. P. 45(g) and Fed. R. Crim. P. 17(g), if a reporter refuses or fails to comply with a subpoena without adequate excuse, he can be found in contempt of court. See also Blackmer v. United States, 284 U.S. 421, 438-440 (1932) (affirming contempt citation and fine imposed on a person who failed to comply with a criminal subpoena).

A subpoena demanding a nonparty witness to travel beyond that is fatally defective and cannot be enforced. Productos Mistolin, S.A. v. Mosquera, 141 F.R.D. 226, 229(D.P.R. 1992) (Subpoena from Florida commanding performance in Puerto Rico was facially void and unenforceable). A reporter who suspects that a subpoena is unenforceable would be wise, however, to seek the protection of the court to avoid any potential grounds for contempt.

In LaRouche, the First Circuit affirmed the lower court’s decision to hold a television network in civil contempt for failing to submit, for in camera review, outtakes of an interview with a prospective key witness. United States v. LaRouche Campaign, 841 F.2d 1176 (1st Cir. 1988).

Civil contempt is the most common remedy applied by Fourth Circuit courts to reporters for non-compliance with a subpoena. Designed to compel compliance with the court order, civil contempt sanctions are typically avoidable through obedience of the order and are mooted when the underlying proceeding is resolved or the information at issue is obtained in another fashion.

Courts may hold a person in civil contempt to coerce compliance with a subpoena or to compensate another party for the contemnor's conduct. Lamar Financial Corp. v. Adams, 918 F.2d 564, 566 (5th Cir. 1990). A person may be held in contempt of court for failing to comply with a subpoena, if she does not supply an "adequate excuse." Fed. R. Civ. P. 45(e). Adequate excuse includes that the subpoena does not comply with the requirements of Rule 45 -- that is, the subpoena fails to provide enough time to comply, imposes undue burden, requires travel greater than 100 miles, seeks information that is privileged, or requires disclosure of a trade secret or other confidential research.

For example, in Selcraig, the lower court ordered that a reporter be imprisoned for civil contempt until he testified according to the subpoena. In re Selcraig, 705 F.2d 789, 795 (5th Cir. 1983). Similarly, the Fifth Circuit declined to reverse the district court's civil contempt order, which had remanded freelance writer Vanessa Leggett to custody following her refusal to produce all originals and copies of her notes and tapes of interviews regarding a celebrated Houston murder. In re Grand Jury Subpoenas, 2001 WL 940433, 29 Media L. Rep. 2301 (5th Cir. Aug. 17, 2001) (per curiam) (unpublished). Thus, Ms. Leggett remained incarcerated until January 4, 2002, when the term of the grand jury expired, or 168 days all told -- the longest period of incarceration of a contemnor-journalist in the history of the United States at that time.

Civil contempt does not have to be used to coerce compliance, however. The Fifth Circuit has distinguished coercive contempt from “remedial contempt,” which is intended to remedy “the consequences of defiant conduct on an opposing party, rather than punishing the defiance per se.” Bradley, 588 F.3d at 263-64. In In re Bradley, the bankruptcy court had held the former trustee in contempt, but found him liable to the bankruptcy estate instead of the court.  Id. at 264. The Fifth Circuit affirmed, finding “no reason why the civil contempt power . . . should not reach” conduct toward an opposing party. Id. at 265.

In United States v. Hively, the court ordered the reporter to appear before the court to testify, and warned that "the Court is prepared to exercise its inherent contempt powers if [the reporter] declines to testify in spite of being directed to do so by this Court." United States v. Hively, 202 F.Supp.2d 886, 895 (E.D. Ark. 2002).

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

Alaska appellate courts have not had occasion to squarely address the existence or scope of a reporter's privilege. Various trial courts have recognized and applied the qualified constitutional privilege in a number of cases, and in none of these has testimony or production of documents been compelled.

The Arkansas Legislature rewrote Ark. Code Ann. § 16-43-206 and removed the punishments for a civil contempt citation. See Acts of 2005, Act 1994, § 315. The statute now states:

A witness imprisoned or fined for contempt by an officer before whom his or her deposition is being taken may apply to the circuit judge, who shall have power to discharge the witness if it appears that the imprisonment is illegal.

The amended statute creates uncertainty as to the current punishments for a civil contempt citation.

California law provides that before a reporter may be held in contempt for refusing to testify, the court must enter specific findings to support the contempt order:

If a trial court holds a journalist in contempt of court in a criminal proceeding notwithstanding subdivision (b) of Section 2 of Article I of the California Constitution, the court shall set forth findings, either in writing or on the record, stating at a minimum, why the information will be of material assistance to the party seeking the evidence, and why alternate sources of the information are not sufficient to satisfy the defendant’s right to a fair trial under the Sixth Amendment to the United States Constitution and Section 15 of Article I of the California Constitution.

Cal. Code Civ. Proc. § 1986.1(c). If the trial court enters such findings, California Code of Civil Procedure § 1211 authorizes the court to “punish[] summarily” any contempt committed in the court’s immediate view and presence. Any contempt committed outside of the presence of the court may be proven by affidavit. Id. However, to avoid unnecessary confinement of the reporter, the California Supreme Court has directed trial courts to stay contempt orders pending appeal. New York Times Co. v. Superior Court, 51 Cal. 3d 453, 460, 796 P.2d 811, 273 Cal. Rptr. 98 (1990).

There are several possible consequences for a newsperson's refusal to comply with a court's order requiring compliance with a subpoena. Where the newsperson is a party to the proceeding, refusal to comply with a court's order may result in a finding of direct contempt under Colo. R. Civ. P. 107; Gordon, 9 P.3d at 1113 (lower court fine of $5,000 for refusal to reveal sources overturned, $15,000 sanction for evasive and misleading discovery responses not challenged on appeal). Under Rule 107, a court may impose either punitive or remedial sanctions where it concludes that a person has committed disorderly and disruptive behavior, such as actions that unreasonably interrupt the course of judicial proceedings and actions that obstruct the administration of justice. Gordon, 9 P.3d at 1113, n. 5. Penalties can include fine, a fixed prison sentence or both. Colo. R. Civ. P. 107.

Likewise, a party or non-party can be sanctioned or fined under Colo. R. Civ. P. 37 if the party seeking the information succeeds in filing a motion to compel and a court orders compliance. Rule 37(a)(3); see, also, Todd v. Bear Valley Apartments, 980 P.2d 973 (Colo. 1999).

In order to hold a reporter in contempt, the requesting party must demonstrate by clear and convincing evidence that (1) the court’s discovery order compelling disclosure is reasonably clear and specific, and (2) the reporter failed to comply with the order.  E.g., Lee v. Dep’t of Justice, 401 F. Supp. 2d 123, 142 (D.D.C. 2005) (holding reporter in contempt and imposing fine of $500 per day until reporter complies with discovery order).  The court has broad discretion in fashioning an appropriate contempt sanction.  Lee v. Dep’t of Defense, 327 F. Supp. 2d 26, 33 (D.D.C. 2004), vacated in part on other grounds, 413 F.3d 53 (D.C. Cir. 2005).

Sanctions imposed in a civil contempt proceeding ordinarily are conditional, i.e., the person held in civil contempt may avoid sanctions by complying with the court’s order.  18 U.S.C § 401. This follows from the purpose of civil contempt, which is not to punish but to exert only so much authority of the court as needed to ensure compliance.  E.g., United States v. Liddy, 354 F. Supp. 208, 217 (D.D.C. 1972) (holding journalist in contempt and remanding him to custody “unless and until he purges himself of the contempt”).  Courts have shown a willingness to stay the imposition of fines and confinement pending appeal of the contempt order, however.  See, e.g., Lee, 401 F. Supp. 2d at 142; Lee, 327 F. Supp. 2d at 33; In re Special Counsel Investigation, 332 F. Supp. 2d 33, 34 (D.D.C. 2004).

If an order compelling testimony from a non-party reporter were upheld on direct appeal (an event that has never occurred since enactment of the privilege), a Georgia trial court would be authorized to fashion a penalty intended to force compliance with its order. Under circumstances of civil contempt, the Georgia Court of Appeals has held that statutory restrictions on contempt powers found at O.C.G.A. § 15-7-4 (fine of no more than $1,000 and/or 20 days in jail) do not apply. Grantham v. Universal Tax Systems, 217 Ga. App. 676, 678, 458 S.E. 2d 870, 872 (1995); Mathis v. Corrugated Gear and Sprocket, Inc., 263 Ga. 419, 421-22, 435 S.E. 2d 209, 211 (1993). However, as with all contempt citations, “courts should limit their orders to the least possible exercise of power required.” In re Siemon, 264 Ga. 641, 641, 449 S.E. 2d 832, 833 (1994).

Section 8-909 of the Statute states that “[a] person refusing to testify or otherwise comply with the order to disclose the source of the information as specified in such order, after such order becomes final, may be adjudged in contempt of court and punished accordingly.” 735 ILCS 5/8-909. For example, in People v. Slover, the trial court found that unpublished photographs were not privileged and found the reporter “in direct civil contempt for refusing to deliver all unpublished photographs concerning the murder investigation.” 323 Ill. App. 3d 620, 622, 753 N.E.2d 554, 556 (2001). The reporter refused to produce the photos and was sentenced to jail pending compliance. Id. at 623, 753 N.E.2d at 556. The reporter appealed, and the appellate court reversed the judgment ordering the production of the photographs and the contempt finding, remanding the case to the trial court. Id. at 625, 753 N.E.2d at 558. In In re Arya, the trial court found the reporter in contempt when he refused to obey an order to produce videotapes and notes and ordered him jailed until he complied with the order. 226 Ill. App. 3d 848, 850, 589 N.E.2d 832, 833 (Ill. App. Ct. 1992). As in Slover, the reporter appealed, and the order was vacated and remanded. Id.

There are no known instances where a reporter has been held in civil contempt, with the proverbial keys to the cell in his own pocket, for disobeying a subpoena. For rules relating to contempt, see Ind. Code Art. 34-47-et seq.

Civil contempt is remedial, meaning that the penalties are only imposed to enforce compliance with a court order. See Knox v. Mun. Ct., 185 N.W.2d 705, 706–07 (Iowa 1971). In the reporter's privilege context, the court may issue a mittimus order detaining the journalist until he or she complies with a discovery order. See Lamberto, 326 N.W.2d at 306.

Civil contempt proceedings may be brought pursuant to Me. R. Civ. P. 66.

Maryland courts have issued contempt orders in relation to reporters' failing to comply with subpoenas. See WBAL-TV Division, 477 A.2d 776 and Lightman, 294 A.2d 149. However, Maryland cases have not addressed the fines and/or jail time assessed as a result of contempt orders. The Maryland Rules allow "[t]he court against which a direct civil or criminal contempt has been committed [to impose] sanctions on the person who committed it . . ." Md. R. Other Special Proceedings 15-203(a) (2017).

Reporters in Massachusetts have been held in civil contempt to compel compliance, with the proverbial keys to the cell in their own pockets.

To establish a complaint for civil contempt, the complainant must establish, by preponderance of the evidence,: 1)clear and undoubted disobedience 2) of a clear and unequivocal command. United Factory Outlet, Inc. v. Jay's Stores, Inc., 278 N.E.2d 716 (1972).

In Ayash v. Dana-Farber Cancer Inst., a judge ordered the media defendants to pay $100 per day, with that amount increasing by $100 for each successive week. The Massachusetts Appeals Court vacated that order and remanded so the court could employ the balancing test required for a reporter's privilege claim. 706 N.E.2d 316 (1999). On remand, the trial court determined that the plaintiff's need for the information should prevail. The court found the journalists in civil contempt after they continued to refuse to disclose their sources. Ayash, 443 Mass. 367 (Mass. 2005).

A reporter was also found in civil contempt in In re Roche, 411 N.E.2d 466 (Mass. 1980).

The procedures for bringing a complaint for civil contempt are carefully laid out in Mass. R. Civ. P. 65.3.

Under Minn. R. Civ. P. 37.02, a court is authorized to impose sanctions for failure to comply with discovery orders. Civil contempt is one type of sanction. See Rule 37.02(b)(4) ("In lieu of any of the foregoing orders or in addition thereto, an order treating as a contempt of court the failure to obey any orders except an order to submit to a physical or mental examination."); see also Minn. Stat. §588.01, subd. 3 (8). In determining whether to impose a severe sanction, such as civil contempt, a court will examine "the extent of disobedience, the motivation for it, []whether it was intentional or negligent," and "whether the disobedience caused any prejudice to the party obtaining the order compelling discovery." David F. Herr & Robert S. Haydock, 1A Minnesota Practice, Civil Rules Annotated R 37.02, § 37:9 (6th ed., 2017); see also Minnesota State Bar Assoc. v. Divorce Assistance Assoc. Inc., 248 N.W.2d 733. 740 (Minn. 1976) ("[S]uch a sanction is appropriate only where the alleged contemnor has acted contumaciously, in bad faith, and out of disrespect for the judicial process.").

Civil contempt is "generally imposed to compel compliance with a court order." Herr & Haydock, supra § 37:9 see also Burkstrand v. Burkstrand, No., C2-01-1200, 2002 WL 378092, *4 (Minn. Ct. App. Mar. 12, 2002) (unpublished). It is used frequently to compel a nonparty's compliance with a discovery order because other sanctions would have little impact on a nonparty. Herr & Haydock, supra § 37:9.

If the primary purpose is to enforce the rights of private party litigants or to enforce compliance with a court order, the contempt is civil. Purvis v. Purvis, 657 So. 2d 794, 796-97 (Miss. 1994) (citing Common Cause of Mississippi v. Smith, 548 So.2d 412, 415 (Miss. 1989)).

Miss. R. Civ. P. 45(g) states that "[f]ailure by any person without adequate excuse to obey a subpoena served upon him may be deemed a contempt of the court from which the subpoena issued." The Mississippi Supreme Court has held that attorneys’ fees and costs are appropriate where the party subpoenaed fails to attempt to comply. Flechas v. Pitts, 138 So. 3d 907, 913 (Miss. 2014) (finding the offending party to be in contempt of court).

Civil contempt sanctions may be used to coerce compliance with a valid subpoena.

The New Hampshire Supreme Court has specifically stated that "the trial court is free to exercise its contempt power to enforce its [order to disclose]," Downing v. Monitor Publishing Co., Inc., 120 N.H. at 387, which would include the power to levy fines or to jail the reporter. There are no instances of a trial court finding a reporter in contempt, levying a fine, or ordering a reporter to jail.

A reporter who fails to comply with an order to testify may be charged with contempt. Civil contempt is punished by a $50 fine per contempt charge. N.J.S.A. 2A:10-5.

Contempt may be prosecuted in a summary manner where the conduct has obstructed, or would continue to obstruct the proceeding; it occurred in the presence of the judge; the conduct demonstrates willfulness; immediate adjudication is necessary for the purposes of efficiency; and the judge has provided the contemnor the opportunity to respond.  R. 1:10.

No New Mexico law specifically addresses this issue with respect to an unsuccessful assertion of the reporter’s privilege. In general, however, “[f]ailure by any person without adequate excuse to obey a subpoena served on that person may be deemed a contempt of the court from which the subpoena issued.” Rule 1-045(E) NMRA; Rule 5-511(E) NMRA; see also Rule 1-037(B)(1) NMRA (“If a deponent fails ... to answer a question after being directed to do so by a court with jurisdiction, the failure may be considered a contempt of that court.”); Rule 5-503.2(B)(1) NMRA (same).

This section addresses situations where a reporter is held in civil contempt to compel compliance, with the proverbial keys to the cell in his own pocket. In the words of New York’s highest court, the Court of Appeals, contempt "usually involves imprisonment, a fine or both," and is "considered a drastic measure." Oak Beach Inn Corp. v. Babylon Beacon, Inc., 62 N.Y.2d at 165, 476 N.Y.S.2d at 272 (N.Y. 1984). To sustain a civil contempt, "a lawful judicial order expressing an unequivocal mandate must have been in effect disobeyed" and "prejudice to the rights of a party to the litigation must be demonstrated." McCain v. Dinkins, 84 N.Y.2d 216, 226, 616 N.Y.S.2d 335 (N.Y. 1994).

It remains exceptional for reporters in New York to be found in contempt and fined and/or imprisoned, no doubt due to the robust protections afforded to professional journalists by New York's Shield Law. Where such sanctions have been imposed, they have typically been overturned on appeal. By the express terms of the Shield Law, contempt would only be available where the qualified privilege for materials had been overcome and the reporter refused to produce the nonconfidential materials. As a practical matter, where no confidential sources are implicated, it is unlikely that a reporter would refuse to comply with an order to disclose the information that has been upheld on appeal. See below.

In general, contempt is "civil" if the contemnor may avoid the penalty by performing some act required by the court, such as complying with the original order. Bishop v. Bishop, 90 N.C. App. 499, 369 S.E.2d 106, 109 (N.C. App. 1988) (citing Hicks v. Feiock, 485 U.S. 624 (1988)).

If a subpoena is held to be valid, a reporter may be sanctioned for contempt of court. N.C. R. Civ. P. 45(e). To find someone in contempt, the court must make appropriate findings of fact to support the order. Smith v. Smith, 247 N.C. 223, 100 S.E.2d 370 (N.C. 1957). However, a witness should not ignore a valid subpoena and risk a contempt sanction. Although there appear to be no reported decisions directly on point, the practice is that once a motion to quash has been filed in response to a subpoena a witness may refuse to comply with the subpoena until the motion has been ruled upon.

Disobedience of a subpoena or refusal to testify as a witness is civil contempt under Okla. Stat. tit. 12, § 392.  For the refusal of a witness to attend in obedience to a subpoena, an attachment may issue for an officer to bring the witness before the court, and the recalcitrant witness may be fined up to $50 and imprisoned in the county jail until he purges himself of the contempt by testifying.  The witness may also be liable to the party injured for any damages suffered by reason of the witness' refusal to testify.

In general, civil contempt citation “is intended to coerce the disobedient party into compliance with the court’s order through incarceration and/or monetary punishment.” Commonwealth v. Bowden, 838 A.2d 740, 761 (Pa. 2003). In some instances, civil contempt also can be used for “compensation that is paid to the party whom the contempt has harmed.” Id.; see, e.g., Schnabel Assocs., Inc. v. Bldg. & Constr. Trades Council, 487 A.2d 1327, 1338 (Pa. Super. 1985) (ordering a contemnor to pay the costs and attorney’s fees incurred by the other party as a result of the contempt).

Before a trial court may order a sanction to coerce compliance, it must consider a number of factors, including “the character and magnitude of the harm threatened by continued contumacy, and the probable effectiveness of any suggested sanction in bringing about the result desired.” Bowden, 838 A.2d at 761. Before imposing a coercive civil contempt fine, the court must “consider the amount of defendant’s financial resources and the consequent seriousness of the burden to that particular defendant.” Id. The failure of a trial court to consider the required factors before imposing contempt is an abuse of discretion and may be overturned on appeal. Id. at 762. The court may not impose a coercive civil contempt sanction where compliance with the court’s order is impossible. In re Martorano, 346 A.2d 22, 29 (Pa. 1975). In determining what sanction to impose, “a court must exercise the least possible power suitable to achieve the end proposed.” Commonwealth v. Cromwell Twp., 32 A.3d 639, 653 (Pa. 2011) (citing Spallone v. United States, 493 U.S. 265, 276 (1990)).

Where the contempt is direct, such as where a reporter refuses to disclose information in open court after having been heard on whether the reporter’s privilege or Shield Law protects the information, the reporter may be subject to a summary finding of contempt for disobeying a court order in the court’s presence – that is, the person can be found to be in contempt on the spot, with no further inquiry by the court. 42 Pa. Cons. Stat. § 4132; McMahon v. McMahon, 706 A.2d 350, 356 (Pa. Super. 1998); see also Crozer-Chester Med. Ctr. v. Moran, 560 A.2d 133, 136 (Pa. 1989) (“It is summary because its proofs are evident; the authority of and orderly process of the court are directly confronted upon its open record and the evidence is plain and usually self-accusing.”).

If the contempt is indirect, however, a court can hold a person in civil contempt only after a multi-step, multi-hearing process: “1) a rule to show cause why an attachment should not issue, 2) an answer and hearing, 3) rule absolute (arrest), 4) a hearing on contempt citation, and 5) an adjudication of contempt.” McMahon, 706 A.2d at 356 (citation omitted). These are not rigid steps, and a civil contempt order may be upheld if the court followed these procedures in substance, if not in exact form. Id. at 356–57.

Pursuant to Rule 45(e) of the Rhode Island Rules of Civil Procedure, any person who fails to obey a subpoena served upon that person may be deemed in contempt of the court in which the action its pending. Civil contempt is established when it is proved by clear and convincing evidence that a lawful decree was violated. Durfee v. Ocean State Steel, Inc., 636 A.2d 698, 704 (R.I. 1994).

Tennessee law generally authorizes courts to punish willful and knowing refusal to obey an order to testify in response to a subpoena by civil contempt. See Tenn. Code Ann. §§ 29-9-101 - 29-9-108.

Generally, the media would be subject to the same punishment for refusing to comply with a subpoena as non-media would be, keeping in mind the protections offered by the shield law. Failure to comply with a subpoena can result in a finding of civil contempt of court and may be punishable by a fine, confinement, or both. Tex. R. Civ. P. 176.8. Under Texas Rule of Civil Procedure 176.8, refusal to comply with a subpoena can be deemed contempt of court of either the court issuing the subpoena or by the court in the county in which the subpoena was served.

“Failure by any person without adequate excuse to obey a subpoena served upon that person is punishable as contempt of court.” Utah R. Civ. P. 45(g).

In St. Peter, the Vermont Supreme Court cautioned that “legitimate objections to disclosure based on First Amendment grounds require careful evaluation by the judicial officer before answers are compelled, or the sanctions of fine or imprisonment involved.” St. Peter, 132 Vt. at 271, 315 A.2d at 256. The Reporter’s Notes to the Vermont Rules of Civil Procedure likewise note that because subpoenas do not issue from judicial officers in civil proceedings, “contempt should be very sparingly applied when the non-party witness has been overborne by a party or attorney.” V.R.C.P. 45, Reporter’s Notes -1994 Amendment. Vermont law nonetheless provides an array of sanctions for civil and criminal contempt.

V.R.C.P. 45 states that “[f]ailure by any person without adequate excuse to obey a subpoena served upon that person may be deemed a contempt of the court for which the subpoena was issued.” V.R.C.P. 45(e).  Adequate excuse is not defined by the rule but exists when a nonparty is asked to travel more than 50 miles from the place of service to the location of the deposition. Id.

The purpose of civil contempt is to coerce the contemnor into doing what he had previously refused to do. Int’l Union, UMW v. Covenant Coal Corp., 12 Va. App. 135, 402 S.E.2d 906 (1991). Thus, the reporter holds the keys to his jail cell in his pocket because the contemnor will be released from jail when he purges himself of the contempt.

The usual enforcement mechanism for civil subpoenas is contempt. CR 45(g).

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).

No Wisconsin appellate opinions address the issue. The penalties for civil contempt are set forth in Wis. Stat. § 785.04(1).