3. Filing of affidavit

None is required.

The First Circuit does not have any rules requiring the subpoenaing party to make a sworn statement in order to procure a reporter’s testimony or materials.

No affidavit is required upon issuance of the subpoena.

Except in the grand jury context, neither the applicable rules nor case law in the Third Circuit appear to require that a subpoena to the news media be supported by an affidavit, at least in the first instance. In the grand jury context, the Third Circuit has held that the limits of a grand jury's inquiry are established by the so-called Schofield rule, which requires that the government show by affidavit that the subpoenaed items are "'(1) relevant to an investigation, (2) properly within the grand jury's jurisdiction, and (3) not sought primarily for another purpose.'" In re Gronowicz, 764 F.2d at 986 (quoting In re Grand Jury Proceedings, 507 F.2d at 966).

The federal rules, as well as the local rules for the district courts in the Fourth Circuit, do not require that the subpoenaing party make any sworn statement in order to procure a reporter’s testimony or materials. Where the federal government is issuing a subpoena to the news media, it must obtain the express authorization of the Attorney General, and that authorization should be based on representations by the seeking party that the information sought is essential and other alternatives have been exhausted. See 28 C.F.R. § 50.10. However, the guidelines do not provide the media with a cause of action if they are not followed. In re Shain, 978 F.2d 850, 853-54, 20 Media L. Rep. 1930 (4th Cir. 1992).

The Fifth Circuit has held that, to overcome the reporter's privilege, a subpoenaing party must demonstrate by sworn affidavit or deposition, not merely by conclusory allegations, that it can make out a prima facie case for which the disclosure of the identity of a reporter's confidential news source will be a necessary element of proof. In re Selcraig, 705 F.2d 789, 797-98 (5th Cir. 1983).

The subpoenaing party need not make any sworn statement for a subpoena to issue.

There are no special requirements concerning a member of the news media and the filing of affidavits. The normal procedures under Federal Rule of Civil Procedure 45 or Federal Rule of Criminal Procedure 17 would apply. There are no Seventh Circuit Rules or Local Rules that apply.

No Eighth circuit case law addresses this issue in the context of the reporter's privilege.

There is no statutory or case law addressing this issue.

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

Court rules do not contain any special rules or procedures with respect to subpoenaing members of the news media. No law specifically requires a subpoenaing party to make any special affidavit in order to seek testimony or materials from a reporter. Alaska appellate courts have not had occasion to squarely address the existence or scope of a reporter's privilege, and neither they nor the trial courts have had occasion to address this issue.

Except in the grand jury context, the Arizona Media Subpoena Law requires that an affidavit setting forth six specific averments must accompany the subpoena. The affidavit must identify each item of information sought, attest that the material sought is relevant and material to a legal action, and state that attempts to obtain the information from alternative sources have failed. The alternative sources must be identified. Moreover, the affidavit must attest that the information sought is not protected by any lawful privilege. Finally, the affidavit must aver that the subpoena "is not intended to interfere with the gathering, writing, editing, publishing, broadcasting and disseminating of news to the public as protected by" the First Amendment and the Arizona Constitution. A.R.S. § 12-2214(A). The affidavit does not need to be filed, but it must be served with the subpoena. A.R.S. § 12-2214(B).

Arkansas's shield law does not require that the party serving a subpoena for a reporter's testimony or materials must first file an affidavit or other sworn statement indicating why the testimony or materials are needed. However, before a court will compel a reporter to disclose a confidential source, the party seeking such disclosure must make a showing that the article in which the source's information was used was written in bad faith, with malice and was not in the interest of the public welfare. Saxton, supra.

California law permits the issuance of a subpoena without filing any affidavit. See Cal. Code Civ. Proc. § 2020.220. However, to protect a reporter against a risk of inadvertent waiver of the reporter’s rights, California law requires specific notice to the reporter and to the news organization that employs or contracts with the reporter, including, “at a minimum, an explanation of why the requested records will be of material assistance to the party seeking them and why alternate sources of information are not sufficient to avoid the need for the subpoena.” Cal. Code Civ. Proc. § 1986.1(b)(2).

Rule 45 requires no showing as to necessity, except where a party schedules the taking of more depositions than those permitted in the Case Management Order. See Rule 30(a)(2). In criminal cases, however, to take a deposition, the party seeking the deposition must file a motion with an accompanying affidavit stating that the witness cannot attend the trial or hearing, or the deposition is necessary to prevent injustice. Crim. P. Rule 15(a). However, the Colorado Court of Appeals has held that the absence of an affidavit does not make the subpoena defective. People v. Hernandez, 899 P.2d 297 (Colo. App. 1995).

Historically, the subpoenaing party has not been required to make a sworn statement in order to procure the reporter’s testimony or materials. Given the new statute’s requirement that a party pursue negotiations with the news media prior to initiating compulsory process against the news media, it is feasible that some certification of compliance with that requirement will be necessary.

An affidavit is not necessary to obtain a subpoena.  However, a party may need to file an affidavit with a motion to compel or a motion to quash in order to establish sufficient evidence that the privilege does or does not apply.  See 4B Wright & Miller, Fed. Prac. & Proc. Civ. § 1170 n.1 (“The use of affidavits in support of motions is recognized in [Rule 6(c)] and the verification of motions by affidavit is the general practice.”).

Delaware has no requirement of affidavits to accompany subpoenas.

An affidavit is not necessary to obtain a subpoena.  However, a party may need to file an affidavit with a motion to compel or a motion to quash in order to establish sufficient evidence that the privilege does or does not apply.  See SCR-Civ. 6(c), 4B Wright & Miller, Fed. Prac. & Proc. Civ. § 1170 n.1 (“The use of affidavits in support of motions is recognized in Rule 6(d) and the verification of motions by affidavit is the general practice.”); SCR-Crim. 47(d).

Florida does not require that the subpoenaing party make any sworn statement in order to procure the reporter’s testimony or materials.

Georgia law does not require the filing of an affidavit prior to issuing a subpoena to a reporter.

Hawai'i law does not specify whether the subpoenaing party must make a sworn statement to procure the reporter's testimony or materials.

The server must return the subpoena with an affidavit of service stating the date and manner of service and names of persons served, unless he or she is an officer authorized by law to serve process. See Idaho Rule of Civil Procedure 45(b)(3).

Although there is no Illinois statutory or case law specifically addressing whether an affidavit must accompany a subpoena to the news media, the Statute does require that the application to the court requesting divestiture of the privilege allege the following facts: 1) the name of the reporter and of the news medium with which he or she was connected at the time the information sought was obtained; 2) the specific information sought and its relevancy to the proceedings; and 3) a specific public interest which would be adversely affected by non-disclosure of the information. In a libel or slander case, the movant must allege, in place of element #3 above, that the disclosure of information is necessary to the proof of the movant’s case. 735 ILCS 5/8-904. The Statute also requires the movant in a libel or slander case to make a prima facie showing of defamation, including falsity of the statements and actual harm or injury due to the alleged defamation. Id.

Upon agreement of the parties to the litigation, an affidavit may be produced by the subpoenaed party in lieu of direct testimony.

The subpoenaing party is required to provide an affidavit. Iowa Code § 622.64 (2019) (“When a subpoena is served by any person other than the sheriff or constable, proof thereof shall be shown by affidavit; but no costs for serving the same shall be allowed.”).

There is no statute or decision requiring the party causing the subpoena to be issued to make a sworn statement of any kind in order to obtain a journalist’s testimony.

Kentucky law does not require that the subpoenaing party make any sworn statement in order to procure the reporter's testimony or materials. Ky. R. Civ. P. 45.01, 45.02; Ky. R. Crim. P. 7.02.

Louisiana's shield law exempts the subpoenaed media party from appearing or testifying in response to a subpoena in order to confirm the circulation or broadcast audience of the news media organization or to confirm the publication or broadcast of specified materials if the media party provides the court with an affidavit. La. R.S. 45:1455. The statute also outlines the substantive requirements of the affidavit. La. R.S. 45:1455(B).

The statute does not require that the party serving the subpoena execute an affidavit.

There is no requirement for the filing of an affidavit to serve a subpoena on the media.

Md. R. Civ. Proc. 2-311(d). "A motion or a response to a motion that is based on facts not contained in the record shall be supported by affidavit and accompanied by any papers on which it is based." Pursuant to Md. R. Civ. Proc. 1-304 and 2-311(d), it appears that the affidavit may be based on knowledge, information and belief or personal knowledge. There is no case law addressing this issue.

For rules relating to service of subpoenas, see Mass. R. Civ. P. 45; Mass. R. Crim. P. 17.

No affidavit of cause is required.

Minnesota law does not require the subpoenaing party to serve or file an affidavit to procure testimony or materials from a reporter. If the testimony or materials involve confidential or unpublished material protected by the statute, the subpoenaing party cannot compel disclosure without obtaining a court order in advance.

Filing an affidavit is not required.

There is no statutory or case law addressing this issue.

An affidavit is required for an investigative subpoena on behalf of law enforcement. Otherwise, an affidavit is not required.

Neither the shield law nor subpoena statutes require the person issuing the subpoena to make any sworn statement in order to procure testimony. Proof of service by affidavit is required unless subpoena is served by sheriff, constable, or coroner. See Neb. Rev. Stat. § 25-1223 (Reissue 2016).

NRS 49.275 does not require “a party claiming the privilege to file an affidavit in support of a request for protection under the statute.” Aspen Fin. Servs., Inc. v. Eighth Judicial Dist. Court, 129 Nev. 878, 313 P.3d 875, 878 (2013). The motion to quash a subpoena must demonstrate “that the information sought by the subpoena is facially protected by the news shield statute.” Id. at 884, 879. A party may submit an affidavit or other evidence in support of a motion to compel compliance with a subpoena.

There is no statutory or case law that requires a person to file an affidavit to issue a subpoena.

The subpoena server is not required to file an affidavit with the court.

There is no such requirement under New Mexico law.

There is no statutory or case law addressing this issue.

Any party may request either a subpoena compelling a witness to testify or a subpoena to produce documentary evidence, and no affidavit need accompany the subpoena attesting that the material sought is relevant and material to a legal action and that attempts to obtain the information from alternative sources have failed. N.C. R. Civ. P. 45(a). However, under the North Carolina shield law, no order compelling testimony or production can issue unless a judge finds at a hearing that the person seeking the information has overcome the journalist's qualified privilege. N.C. Gen. Stat. § 8-53.11(c).

A subpoena can be signed by an attorney for a party to an action or proceeding or by the clerk of court. The North Dakota shield law does not require that the party serving the subpoena make any special sworn statement in order to procure the reporter's testimony or materials.

No specific requirements.

The privilege statute does not require the party requesting disclosure to file an affidavit.

None required under the ORCP.

There is no requirement under either the Shield Law or the First Amendment privilege that the subpoenaing party make any sworn statement in order to procure a reporter’s testimony or materials.

There is no statutory or case law addressing this issue.

No affidavit is required by the shield statute.

None required.

The filing of an affidavit is not expressly required.

There is no explicit requirement for a subpoenaing party to file an affidavit; however, the burden is on the subpoenaing party to meet the test to overcome the privilege by clear and specific evidence. See Tex. Civ. Prac. & Rem. Code §22.024 and Tex. Code Crim. Proc. art. 38.11 §§4 and 5.

There is no statutory or case law addressing this issue.

There is no requirement under Vermont law for the subpoenaing party to attach an affidavit to the service of a subpoena on a member of the media.

There is no affidavit requirement for serving a subpoena on a reporter.

Washington court rules do not require that a subpoenaing party make any sworn statement in order to procure the reporter's testimony or materials. Of course, proof of service of a subpoena must be made by affidavit under CR 45(c).

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”)

A party serving a subpoena in Wisconsin need not file an affidavit with the court.

No affidavit is required under Wyoming law or court rules.