4. Subpoena not overbroad or unduly burdensome

The Tenth Circuit has stated that overbroad subpoenas -- which amount to a "fishing expedition" -- will not be found to be sufficiently focused to overcome the reporter's privilege. Silkwood v. Kerr-McGee Corp., 563 F.2d 433, 437 (10th Cir. 1977). The Court has also stated that overbroad subpoenas issued under Rule 17 of the Federal Rules of Criminal Procedure will not be enforced. See United States v. Gonzalez-Acosta, 989 F.2d 384, 389 (10th Cir. 1993) (pre-trial subpoenas cannot amount to a "fishing expedition" and those seeking materials for production at trial must seek documents that are "relevant, admissible and specific"). Furthermore, a criminal defendants' subpoena will be denied if it seeks information that is cumulative of other available evidence. See United States v. Hernandez-Urista, 9 F.3d 82, 84 (10th Cir. 1993) (affirming trail court's denial of defendants' subpoena request under Fed. R. Crim P.17(b) where evidence sought had already been provided by other witnesses). When confronting a subpoena issued by a government prosecutor on a member of the news media, it is also helpful to insist that the United States Attorney comply with 28 C.F.R. 50.10 (2001).

A subpoena may be quashed if it subjects a reporter to “an undue burden” (Fed. R. Civ. P. 45(d)(3)) or if compliance with the subpoena would be “unreasonable or oppressive” (Fed. R. Crim. P. 17). Courts in the First Circuit have broad discretion to fashion appropriate remedies in response to motions to quash subpoenas. As the First Circuit stated in Bruno & Stillman, “[t]he court . . . has available to it a range of actions that can be tailored to the needs of sensitive balancing.” Bruno & Stillman v. Globe Newspaper Co., 633 F.2d 583, 598 (1st Cir. 1980). The court can use its discretion to fashion creative remedies in situations where the moving party is entitled to some information, but the subpoena is overly broad. For example, the court may order in camera review of certain information and disclosure of other information. The court may defer disclosure of certain information until more discovery has taken place, or it may require that the moving party first resort to alternative sources. Id. The court can also order a deposition or other discovery, but with limited scope, and restrict the parties who may attend this deposition or access this information. The court has broad flexibility to fashion remedies to meet the needs of the particular circumstances. “Other kinds of conditions may be imposed, limited only by the needs of the situation and the ingenuity of court and counsel.” Id.

 

In Pan Am Systems, Inc. v. Atlanta Northeast Rails and Ports, 804 F.3d 59, 63 (1st Cir. 2015), the First Circuit (citing Bruno & Stillman, Inc. v. Globe Newspaper Co., 633 F.2d 583, 597-98 (1st Cir. 1980)) referenced with approval the trial court’s decision to bifurcate discovery in the underlying defamation case; concerned that a fight over the element of fault might require media defendants to divulge confidential sources, the district court there ordered the parties to do discovery on all issues except fault, followed by summary judgment on those issues, followed by discovery on fault if needed.

Federal Rules of Civil Procedure 45(c)(1) and 45(c)(3)(A)(iv) state that a subpoena may not impose an undue burden. Federal Rule of Criminal Procedure 17(c) states that a subpoena may be quashed if it is unreasonable or oppressive.

The Second Circuit has stated that use of a subpoena for a fishing expedition is improper and blanket subpoenas are not permitted. Stratagem Dev. Corp. v. Heron Int'l N.V., 90 Civ. 6328 (SWK), 1992 U.S. Dist. LEXIS 14832, at *24-25 (S.D.N.Y. Sept. 30, 1992); see generally 9A Wright & Miller, Federal Practice and Procedure §§ 2457-2459 at 32-55. Courts have allowed parties to issue subpoenas that demand production of all documents in the recipient's custody or control relating to a certain specified matter or issue. 9A Wright & Miller, Federal Practice and Procedure § 2457 at 35. For example, in Polaroid Corp. v. Commerce Int'l Co., 20 F.R.D. 394 (S.D.N.Y. 1957), a patent infringement action, the court permitted a subpoena that called for all documents, records, books, memoranda, correspondence, and papers alluding to any facts or information received by the defendant or his agents. The subpoena had a list of categories that adequately described the documents plaintiff sought and that related to issues in the pleadings.

The Second Circuit also has stated that a subpoena may be quashed if it calls for clearly irrelevant matter. Anderson v. British Overseas Airways Corp., 149 F. Supp. 68 (S.D.N.Y. 1956) (stating that a subpoena will be quashed if it is burdensome in detail and under circumstances where no further evidence could affect a conclusion made by the court). If there is any ground on which the subpoena may be relevant, the court does not have to quash the subpoena. Commercial Metals Co. v. Int'l Union Marine Corp., 318 F. Supp. 1334 (S.D.N.Y. 1970) (denying motion to quash subpoena in contract dispute between shipowner and charterer because records showing profits earned by shipowner from alleged wrongful use of the ship during the charter period was relevant to the arbitrator's inquiry). Even if relevant evidence is sought, a subpoena still can be unreasonable or oppressive. See 9A Wright & Miller, Federal Practice and Procedure, § 2459 at 46.

Courts in the Second Circuit have found subpoenas to be unreasonable and oppressive for many reasons. For instance, a subpoena will be quashed if compliance would require violating the laws of another country, In re Equitable Plan Co., 185 F. Supp. 57 (S.D.N.Y. 1960); if the subpoena is used to get around an aspect of foreign law, Laker Airways Ltd. v. Pan American World Airways, 607 F. Supp. 324, 326 (S.D.N.Y. 1985); and if the subpoena calls for a huge mass of unidentified documents, which are not limited geographically or as to time. Austin Theatre, Inc. v. Warner Bros. Pictures, Inc., 30 F.R.D. 156, 158 (S.D.N.Y. 1958). A subpoena was also found unreasonable in an unlawful labor acts action, in which the discovering party asked for all bankbooks and statements, all communications with any clergy or clerical institution, all propaganda material, including any and all memoranda in connection with preparation of such propaganda, and all communication between defendant and any newspaper or semipublic agency. Aacon Contracting Co. v. Ass'n of Catholic Trade Unionists, 175 F. Supp. 659, 661-62 (S.D.N.Y. 1959). Further, in United States v. Watchmakers of Switzerland Information Center Inc., 27 F.R.D. 513, 515 (S.D.N.Y. 1961), the court held that a trial subpoena duces tecum was oppressive because the information sought by the discovering party could have been discovered through pre-trial discovery and inspection and would take months to compile. The court did give the subpoenaing party a right to examine and to be heard as to the relevance of the information submitted in response to the trial subpoena. Id.

There are also many Second Circuit decisions in which the court did not find subpoenas to be unreasonable or oppressive. For example, in United States v. Int'l Bus. Machs. Corp., 71 F.R.D. 88, 92 (S.D.N.Y. 1976), the court held that in light of the size and significance of the pending antitrust litigation a subpoena was reasonable, even if compliance with the subpoena would cost tens of thousands of dollars and would require three to six months. The court did modify and limit the subpoena. Id. In Atlantic Coast Insulating Co. v. United States, 34 F.R.D. 450, 453 (E.D.N.Y. 1964), the court held that a subpoena containing a broad request for the production of documents at a deposition was reasonable when the breadth was precautionary rather than harassing, and the discovering party was ignorant about the adversary's records.

In criminal cases, subpoenas are governed by Federal Rule of Criminal Procedure 17(c). They may not be overbroad or frivolous. Courts have made clear that subpoenas must represent "a good faith effort to obtain identified evidence rather than a general 'fishing expedition' that attempts to use the rule as a discovery device." Cuthbertson I, 630 F.2d at 144 (citation omitted); see also Cuthbertson II, 651 F.2d at 192 (listing four requirements for obtaining unprivileged materials from third party witnesses). Rule 17(c) thus presents a ground for quashing a subpoena that is independent of the reporter's privilege. While there has been less discussion of this concept in civil cases in the Third Circuit, Federal Rule Civil Procedure 45(c)(1) similarly requires that the person issuing a subpoena "avoid imposing undue burden or expense," and a subpoena that imposes undue burden may be quashed by the court for that reason alone, Fed. R. Civ. P. 45(d)(3)(A)(iv).

The overbreadth or burdensome nature of a subpoena is not a factor in determining whether to uphold the constitutional reporter’s privilege under LaRouche, but several rules and regulations exist to protect the media and others from overly broad or unduly burdensome subpoenas. Federal Rule of Civil Procedure 45(d) requires a judge to modify or quash a subpoena upon timely motion and impose sanctions upon the seeking party if the subpoena subjects a person to “undue burden.” Federal Rule of Criminal Procedure 17(c) authorizes the judge to quash a criminal subpoena if “compliance would be unreasonable or oppressive.” Regulations issued by the Department of Justice addressing government subpoenas to the media mandate that the subpoena “not be used to obtain peripheral, nonessential, or speculative information.” Instead, it “should be narrowly drawn. It should be directed at material and relevant information regarding a limited subject matter, should cover a reasonably limited period of time, should avoid requiring production of a large volume of material, and should give reasonable and timely notice of the demand,” and “generally should be limited to the verification of published information and to such surrounding circumstances as relate to the accuracy of the published information.” 28 C.F.R. § 50.10(c)(4)(ii), (v), (vii).

In Federico, a news organization sought to quash a subpoena by asserting the reporter’s privilege.  Federico v. Lincoln Military Housing, LLC, 42 Media L. Rep. 2472 (E.D. Va. Aug. 13, 2014).  The court noted that while a news organization “may enjoy a limited privilege as part of its newsgathering function, it must still respond to the subpoenas as limited by the court.”  Id. at 5. The Court applied the LaRouche factors and ordered a limited production of materials sought by the subpoena that were relevant, only discoverable through the news organization, and for which a compelling interest existed for production.  Id. at 5-6.

The Federal Rules of Civil Procedure authorizes a court to quash a subpoena if it subjects a person to undue burden. Fed. R. Civ. P. 45(c)(3)(A)(iv). A court will find a subpoena imposes an undue burden if it makes overbroad requests. Wiwa v. Royal Dutch Petroleum Co., 392 F.3d 812, 818 (5th Cir. 2004); Tiberi v. Cigna Ins. Co., 40 F.3d 110, 112 (5th Cir. 1994). Whether a subpoena is overbroad depends upon the facts in each case. Williams v. City of Dallas, 178 F.R.D. 103, 109 (N.D. Tex. 1998). In making such a determination, courts usually examine whether the subpoena is limited by reasonable time restrictions or reasonably specific descriptions of the desired documents. Id. The party moving to quash bears the burden of proving that the subpoena imposes undue hardship. Id. Modification of an overbroad subpoena, however, is preferable to quashing it. Id. at 110. In Williams, the court found that, in light of the extensive media attention enjoyed by the plaintiff and his colleague, two well-known professional athletes, a subpoena that requested "any and all documents relating to Erik Williams [or] Michael Irvin" could include innumerable irrelevant stories published about them, and was therefore overbroad and would be modified. Id. at 108-10.

The court is required by the Fed. R. Civ. P. 45(c)(1) in civil proceedings to determine whether the party issuing a subpoena is imposing an undue burden or expense on the person or entity subject to the subpoena. Similarly, Fed. R. Crim. P. 17(c) allows the court in a criminal proceeding to quash a subpoena duces tecum that it determines to be unreasonable or oppressive.

Where information requested in a subpoena is unduly burdensome, disclosure of the information may be denied. In re Daimler Chrysler, 216 F.R.D. 395 (E.D. Mich. 2003).

Courts have not been always been receptive to the argument that a subpoena is generically a burden to the press.  “Absent a showing of actual burden, the Court is not inclined to allow [the reporter] to avoid enforcement of the subpoena with a backdoor attempt to impose a privilege.

Thayer v. Chiczewski, 257 F.R.D. 466,470 (N.D. Ill. 2009).

Even within the criminal context, the court may quash a subpoena which is overbroad or simply fishing for evidence. In U.S. v. Lloyd, 71 F.3d 1256 (7th Cir. 1995), the court quashed a subpoena served by a criminal defense attorney who sought information from a newspaper reporter regarding his article in which a quote appeared from an unnamed police officer alleging there was a lottery on the life of defendant. Defense counsel argued the information was critical to the defendant because it established bias on behalf of the investigating officers. The court characterized this argument as an attempted fishing expedition. Defense counsel failed to establish any nexus between police officer bias and an infirmity in the defendant's arrest, nor was there any evidence that it was the arresting officer who was the source of the reporter's quote. Id. at 1268-69 (finding no relevance to the existence of an alleged lottery where the only issue before the jury was whether defendant possessed a firearm).

In Liebhard v. Square D. Co., No. 91 C 1103, 1992 WL 19358 (N.D. Ill. Aug. 4, 1992), a defendant in a securities lawsuit subpoenaed a Reuters' reporter for notes regarding an interview in which he allegedly misquoted the defendant. The court permitted the reporter to be deposed and to have his notes surrounding the interview to be disclosed. The court however, refused to allow the defendant any latitude in exploring two conversations the reporter had with third-parties regarding his interview given the consistent position he maintained during his deposition. The court found that allowing questioning of this sort amounted to no more than an evidentiary fishing expedition. Id. at *3-4.

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

Under Federal Rule of Civil Procedure 45(c), on timely motion, the court by which a subpoena was issued shall quash or modify the subpoena if it subjects a person to undue burden. Fed. R. Civ. P. 45(c)(3)(A); L.A. Mem’l Coliseum Comm’n v. NFL, 89 F.R.D. 489, 496 (C.D. Cal. 1981) (granting the reporters’ motions to quash because the NFL’s subpoenas were “unreasonable and oppressive” within the meaning of Fed. R. Civ. P. 45). Undue burden can be found when a subpoena is facially overbroad. See Williams v. City of Dallas, 178 F.R.D. 103, 109 (N.D. Tex. 1998).

Whether a subpoena imposes an undue burden upon a witness is a case-specific inquiry that turns on such factors as relevance, need of party for documents, breadth of document request, time period covered by request, particularity with which documents are described, and burden imposed. See Am. Elec. Power Co. v. United States, 191 F.R.D. 132, 136 (S.D. Ohio 1999); Nat’l Labor Relations Bd. v. Bakersfield Californian, 128 F.3d 1339, 1343 (9th Cir. 1997) (holding that the NLRB had authority to issue the subpoena because procedural requirements were followed, the subpoenaed evidence was relevant and material to the investigation, and the defendant did not show that the subpoena was unreasonable because it was overbroad or unduly burdensome).  Discovery requests may also constitute an undue burden simply because they seek the production of irrelevant information.  See, e.g., Jimenez v. City of Chicago, 733 F. Supp. 2d 1268, 1273 (W.D. Wash. 2010); see also Unsworth v. Musk, No. 19-MC-80224, 2019 WL 5550060, at *6 (N.D. Cal. Oct. 28, 2019) (finding a subpoena irrelevant and quashing it as unduly burdensome when a defendant attempted to subpoena a Buzzfeed reporter to ask questions about Buzzfeed’s off-the-record interview policies because only the defendant’s state of mind – not the reporter’s – concerning those policies was at issue).

Federal Rule of Criminal Procedure 17(c) similarly provides that the court, on motion made promptly, may quash or modify a subpoena “if compliance would be unreasonable or oppressive.” Fed. R. Crim. P. 17(c). See also, e.g., United States v. Roberts, 852 F.2d 671, 67 (2d. Cir. 1988) (holding that a subpoena in a criminal case can be invalidated for a variety of reasons, including when it is unduly burdensome, when it violates the right against self-incrimination, or when it calls for privileged documents); United States v. Schneider, 2003 U.S. Dist. LEXIS 27324, at *21 (N.D. Cal. Nov. 18, 2003) (finding that “the government has failed to show that the material sought by the Rule 17(c) subpoena is relevant, specific, and non-cumulative” and that the subpoena should be quashed because it was “unreasonable and oppressive”).

Rule 45 of the Alabama Rules of Civil Procedure permits a court to quash a subpoena that subjects a person to undue burden if the person files a timely motion. ALA. R. CIV. P. 45 (c)(3)(A)(iv). Rule 17.3 of the Alabama Rules of Criminal Procedure permits a court to dismiss or modify a subpoena duces tecum upon a promptly made motion if the subpoena is unreasonable, oppressive, or unlawful. ALA. R. CRIM. P. 17.3 (c).

Alaska appellate courts have not had occasion to squarely address the existence or scope of a reporter's privilege. The same rules of criminal or civil procedure protecting third parties from overly broad or unduly burdensome subpoenas in other contexts would apply to press subpoenas as well.

Arizona law provides that third-party subpoenas cannot be overbroad or unduly burdensome. Under Rule 45 of the Arizona Rules of Civil Procedure, a party or an attorney serving a subpoena "shall take reasonable steps to avoid imposing undue burden or expense on a person subject to that subpoena." Ariz. R. Civ. P. 45(e)(1). The Arizona Media Subpoena Law goes further, and imposes several requirements on the subpoenaing party designed to narrow the scope of the material sought. A.R.S. § 12-2214. The purpose of the statute is to protect members of the media from onerous subpoenas and "broad discovery 'fishing expeditions'" that would unduly interfere with the continuing process of collecting and reporting news to the public. Matera, 170 Ariz. at 448, 825 P.2d at 973; see also Reinstein, 240 Ariz. at 446, 381 P.3d at 240.

In addition to other remedies available for improper subpoenas, A.R.S. § 12-349(A) states that the court "shall assess reasonable attorney fees, expenses, and, at the court's discretion, double damages of not to exceed five thousand dollars against an attorney or party [who] . . . [e]ngages in abuse of discovery."

There is no specific requirement that a court look to whether the subpoena is overly broad or unduly burdensome, but such a determination is within the court's discretion and may be raised by the reporter or publisher. In Ruiz v. State, 265 Ark. 875, 582 S.W.2d 915 (1979), the Supreme Court affirmed the trial court's quashing a subpoena duces tecum issued to the Associated Press, in the course of a change of venue motion in a capital murder case, to produce articles its reporters had written. The Court stated that the evidence showed that the AP had published between 250 and 300 stories on the case that went to all of its subscribers in the state. The court ruled that requiring the AP to accumulate all of those stories, which the AP claimed would take more than 40 hours, would be overly burdensome, particularly in light of the fact that the stories would have been repetitive and of no real value to the jury. Id. at 888-89, 582 S.W.2d at 921.

While the courts have some authority to compel disclosure in civil cases in which the reporter is a party, trial courts should not enforce overbroad subpoenas. Mitchell v. Superior Court, 37 Cal. 3d 268, 282, 690 P.2d 625, 208 Cal. Rptr. 152 (1984). Rather, the court must examine each item of information sought, and allow discovery only as to those items that go “to the heart of the claim.” Id. at 282. As the court noted, “[t]here may well be an irreducible core of information which cannot be discovered except through the Mitchells, but plaintiffs have not yet reduced their discovery to that core.” Id.

The test for criminal defendants to obtain privileged information does not describe the inquiry in this way, although it would require the trial court to reject any overbroad portions of a subpoena. Delaney v. Superior Court, 50 Cal. 3d 785, 800, 807-13, 789 P.2d 934, 268 Cal. Rptr. 753 (1990) (criminal defendant must show, as a threshold matter, that there is “a reasonable possibility that the information will materially assist his defense”; if defendant satisfies this burden, courts must weigh: (1) whether the information sought is confidential or sensitive; (2) the interests protected by the reporter’s privilege law; (3) the importance of the information to the defendant; and, (4) whether alternative sources for the information exist); see also People v. Charles, 61 Cal. 4th 308, 325-26, 349 P.3d 990, 188 Cal. Rptr. 3d 282 (2015) (trial court order sustaining reporter’s objection was “clearly attuned to its obligation to weigh the competing interests” because it referenced the Delaney factors in overruling reporter’s earlier objection).

Both the civil and criminal rules permit a court to quash a subpoena if it is "unreasonable or oppressive." Any fact a newsperson can convey to the court regarding the burdensomeness of responding to the subpoena is likely to be considered by the court. C.R.S. §§ 13-90-119(3)(a)–(c).

See VI-A supra. This standard is significant in that it applies to subpoenas to non-media witnesses as well. As such, it affords a ground that does not show preferential treatment to the media.

Fed. R. Crim. P. 17(c)(2) provides that a court may “quash or modify” a criminal subpoena if compliance would be “unreasonable or oppressive.”  Fed. R. Civ. P. 45(d)(3)(A)(iv), by contrast, provides a court must quash or modify a civil subpoena that “subjects a person to undue burden.”  The D.C. Circuit has interpreted this “undue burden” test to be satisfied by “a request that is unreasonable or oppressive in the context of all the circumstances of the case.”  Flanagan v. Wyndham Int’l Inc., 231 F.R.D. 98, 102 (D.D.C. 2005) (citing Northrop Corp. v. McDonnell Douglas Corp., 751 F.2d 395, 403 (D.C. Cir. 1984) (alterations and internal marks omitted)).  In this context, “[a] trial court has broad, but not unlimited, discretion in evaluating the circumstances of a case when considering quashing a subpoena on grounds of oppressiveness,” and it must “consider the possibility of modifying the subpoena rather than quashing” it.  Northrop Corp., 751 F.2d at 403.

In addition to the first three grounds that are found within the Reporters' Privilege Act, the Rules of Civil Procedure also provide general guidance on dealing with subpoenas. Specifically, Rule 45 dictates that overbroad and unduly burdensome subpoenas will be quashed or modified. Super. Ct. Civ. R. 45 (c)(3). If the materials are both unduly burdensome and "necessary," the party seeking the information must compensate the other party, or the Court may specify the conditions of production or appearance. Id.

Because the granting or denial of a motion to quash a subpoena is a matter within the court’s discretion, and because the court ordinarily will consider the hardship faced by the witness in responding to a subpoena, the court also may determine whether a subpoena is overly broad or unduly burdensome.  In re Herndon, 596 A.2d 592, 596 (D.C. 1991).

Florida’s shield law specifically directs judges to require disclosure only of that portion of the information for which a clear and specific showing under each prong of the test has been made. § 90.5015(3), Fla. Stat. (2023). Thus, in all cases where the judge rules that the privilege has been overcome, he or she must ensure that only that information which has been supported by the showing is revealed. The judge must support his or her order with clear and specific findings made after a hearing. Id. For an example of a narrowly tailored disclosure order, see Gregory v. Miami-Dade County, No. 13-21350-CIV, 2015 WL 3442008 , at *12 (S.D. Fla. May 28, 2015) (finding privilege only overcome to the extent that the reporter’s testimony could provide verification of certain statements allegedly made by Plaintiff to the reporter, and limiting scope and duration of deposition accordingly).

Under general principles applicable in Georgia criminal and civil procedure, a subpoena can be quashed if it is overbroad or unduly burdensome. See generally O.C.G.A. §§ 9-11-26(c) (authorizing entry of protective orders to protect parties from undue burden and to limit the scope of discovery).

A subpoena cannot be overly broad or unduly burdensome. In State v. Pacarro, 61 Haw. 84, 595 P.2d 295 (1979), the Hawaii Supreme Court held that a subpoena duces tecum cannot be phrased in general terms, without specification or particularization of the documents required to be produced. The designated documents or objects must be of an evidentiary nature and also meet the tests of relevancy and admissibility. A subpoena duces tecum is not a means for conducting a "fishing expedition."

The court is not required to make a sua sponte analysis of the subpoena to determine whether it is overly broad or burdensome. The reporter should certainly analyze the subpoena and challenge it as overly broad or burdensome, under the pertinent discovery standards. As described previously, the Idaho Supreme Court has focused upon scope of discovery standards as providing protection against disclosure of confidential or unpublished information in lieu of a constitutionally based privilege. See Sierra Life Ins. Co. v. Magic Valley Newspapers, Inc., 101 Idaho 795, 623 P.2d 103 (1980).

The Illinois Code of Civil Procedure provides that “[f]or good cause shown, the court on motion may quash or modify any subpoena or, in the case of a subpoena duces tecum, condition the denial of the motion upon payment in advance by the person in whose behalf the subpoena is issued of the reasonable expense of producing any item therein specified.” 735 ILCS 5/2-1101; see also Ill. Sup, Ct. Rule 201(c) (trial court may deny a discovery request “to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or oppression”).  “A court should grant a motion to quash a subpoena if a request is oppressive, unreasonable, or overbroad.” In re Commitment of Clark, 2014 IL App (1st) 133040, 14 N.E.3d 617 (2014) (quoting People v. Mitchell, 297 Ill.App.3d 206, 209, 696 N.E.2d 849 (1998)); People v. Teller, 207 Ill. App.3d 346, 565 N.E.2d 1046 (1991) (affirming order quashing discovery subpoena duces tecum; “a court should deny a discovery request not only when the material requested is irrelevant or immaterial but also when the request is oppressive” and trial court properly found “the subpoena was nothing more than ‘a general fishing expedition’”).

Under Federal Rule of Civil Procedure 45(d)(1), “a party or attorney responsible for issuing and serving a subpoena must take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena” and the court “must enforce this duty and impose an appropriate sanction[.]”  Under Rule 45(d)(3)(A)(iii) and (iv), the court “must” quash a subpoena that “requires disclosure of privileged or other protected matter, if no exception or waiver applies”; or “subjects a person to undue burden.”  Whether a subpoena subjects a witness to an undue burden “requires a court to balance the interests served by demanding compliance with the subpoena against the interests furthered by quashing it; this process of weighing a subpoena’s benefits and burdens calls upon the trial court to consider whether the information is necessary and whether it is available from any other source.  It obviously is a highly case specific inquiry and entails an exercise of judicial discretion.”  9A Wright, Miller, et al., Fed. Prac. & Proc. Civ. § 2463.1 (3d ed.)  (emphasis added).

While casting doubt on the existence of a federal reporter’s privilege, the Seventh Circuit in McKevitt v. Pallasch, opined that an appropriate application of Rule 45(c) to subpoenas upon the press would pay due regard to the First Amendment concerns underlying the federal common law reporter’s privilege. 339 F.3d 530, 533 (7th Cir. 2003). “Nothing in McKevitt suggests that a reporter’s notes are discoverable in civil litigation simply because the reporter interviewed a party to that litigation.” Hobley v. Burge, 223 F.R.D. 499, 505 (N.D. Ill. 2004) (quashing subpoena pursuant to Fed. R. Civ. P. 45(c)).

Quashing a subpoena under Rule 45, the district court in Patterson v. Burge, 33 Med. L. Rep. 1200 (N.D. Ill. 2005), relied upon many of the same policy underpinnings that support the statutory and constitutional reporter’s privileges: “Since the press is involved in collecting information about all manner of things and circumstances that frequently end up in litigation, if there is no standard higher than mere relevance which civil lawyers must satisfy to help themselves to reporters’ records, news organizations will be very busy responding to civil subpoenas. Similarly, the news organizations’ efforts to maintain their independence and gain the trust of sources is an interest that will be severely impaired if mere relevance, meaning as it does here a mere relationship to the subject matter of a civil suit, makes their non-public records available on request.” Id. at 1203; see also Hobley, 223 F.R.D. at 505 (“Given the important role that newsgathering plays in a free society, courts must be vigilant against attempts by civil litigants to turn non-party journalists or newspapers into their private discovery agents”); Young v. City of Chicago, No. 13 C 5651, Dkt. No. 234, pp. 4-5 (N.D. Ill., May 23, 2017) (“the press has an interest in not being forced into service for the convenience of every litigant, and the compulsory disclosure of outtakes, if ordered capriciously, would expose the press to burden and harassment—not to mention the chilling effect on the press’ artistic and intellectual freedom, when it conducts an interview and decides what to air and what not to air, to make choices about what it wishes to publicize and what it wishes to keep confidential”).  But see Mosely v. City of Chicago, 252 F.R.D. 421, 427, 436 (N.D. Ill. 2008) (“subpoenas to journalists are not to be subjected to an analysis under Rule 45 that differs from that applied when the subpoena is directed to a non-journalist”; dismissing Hobley’s reliance on important role of news gathering); Wilson v. O’Brien, No. 07 C 3994, 2009 WL 763785, at *10 (N.D. Ill. Mar. 20, 2009) (to find subpoena was not reasonable under the circumstances under Rule 45(c) “would be tantamount to promulgating a First Amendment federal reporter's privilege with respect to non-confidential information” and “contrary to McKevitt”); Taylor v. City of Chicago, No. 14 C 737, 2015 WL 6561437, at *10 (N.D. Ill. Oct. 29, 2015).

A subpoena may be quashed for being overbroad or unduly burdensome. Ind. R. Trial P. 45(B); Ind. R. Crim. P. 2; Ind. Code § 35-37-5-2(c)(1); see also In re WTHR-TV (State v. Cline), 693 N.E.2d 1, 5 (Ind. 1998).

The court is not required to determine whether the subpoena is overly broad, but the party resisting production may move to quash the subpoena because it is unduly burdensome. Iowa R. Civ. P. 1.1701(4)(d)(1)(4).

Both the state and federal rules of civil and criminal procedure require the court considering objections and/or a motion to quash to determine whether the subpoena is overbroad or unduly burdensome. If it is, the reporter is entitled to relief in the form of a protective order.

Although there is no case law on point, an overly broad or burdensome subpoena to the press would be dealt with as any other overly broad or burdensome subpoena would. Ky. R. Civ. P.  45.02 provides that a subpoena may be quashed or modified if it is “unreasonable and oppressive.” See also Ky. R. Crim. P. 7.02(3) (“unreasonable or oppressive”).

The court in which an action is pending "in its discretion may vacate or modify the subpoena [duces tecum] if it is unreasonable or oppressive." La. Code Civ. Proc. 1354.

In Smith, the United States Fifth Circuit stated that the press has a case-specific "relevant and protectible interest in not being unduly burdened, as for example, by overly broad subpoenas for large amounts of data of dubious relevance." Id. at 970.

Any subpoena, whether directed to a member of the media or not, can be quashed or modified in scope to the extent that it is overbroad, burdensome or oppressive. Me. R. Civ. P. 45; Me. R. Crim. P. 17, 17A.

The state court also considers the specificity and purpose of the information sought by the subpoena. In re Letellier, 578 A.2d 722, 728, 17 Media L. Rep. 2169 (1990) (holding in favor of allowing discovery because the district attorney’s request was “both limited and focused”).

"It is well established that an enforcing court may limit through modification or partial enforcement subpoenas it finds to be unduly burdensome." Equitable Trust Co. v. State Comm'n on Human Relations, 411 A.2d 86 (Md. 1979) quoting FTC v. Texaco, Inc. 517 F.2d 137 (D.C. Cir. 1975).

A subpoena may be quashed for being "unreasonable or oppressive." Mass. R. Civ. P. 45; Mass. R. Crim. P. 17. The burden of the subpoena is evaluated by balancing the interests of the reporter in keeping sources confidential and the party moving for the subpoena in the identities of the sources.

Under Michigan Court Rule 2.302(G)(3)(b)(1), the signature of one’s attorney certifies that the information sought in a subpoena is not unreasonable or unduly burdensome. If the rule is violated and the discovery request is overly broad or unduly burdensome, the court, “on the motion of a party or on its own initiative, may impose upon the person who made the certification,” an appropriate sanction. MCR 2.302(G)(4). This could include “an order to pay the amount of the reasonable expenses incurred because of the violation, including reasonable attorney fees.” Id.

Under the Federal Rules of Civil Procedure, if a party does not take reasonable steps to avoid imposing an undue burden or expense on a person subject to their subpoena, they could face sanctions. Fed. R. Civ. P. 45(d)(1). The sanctions, which could be imposed based on a party’s motion or based on the court’s own initiative, “may include lost earnings and reasonable attorney’s fees.” Id.

Minnesota courts have long rejected overly broad requests for information from journalists, beginning with Thompson v. State, 170 N.W.2d 101 (Minn. 1969).

There is no statutory or case law addressing this issue.

Nothing in Missouri case law or court rules speaks specifically to this issue, other than the fact that it is general practice in Missouri courts for the judge to make a decision upon the narrowest grounds possible. Therefore, it is expected that the court would rule so as to provide guidance on the breadth that the inquiry could take under the subpoena.

Subpoenas can be quashed or modified if overbroad.

Overbreadth and burden are grounds for quashing any subpoena under general procedural rules.

The discovery commissioner and district court judges are generally entitled to make a determination as to whether a subpoena is overly broad or unduly burdensome and a reporter’s attorney should also raise any such issue in connection with a motion to quash or for protective order.

There is no statutory or case law that exempts subpoenas issued to the media from general guidelines for discovery set forth in Superior Court Rule 35(b), and the case law governing discovery. Discovery may be limited by the court if the discovery requests have the purpose or effect of harassing, embarrassing, annoying or invading the privacy of, or to impose an undue burden or expense or an oppressive hardship on, a party.

The privilege specifically requires that after the criminal defendant has made the initial showing the court must then determine that the value of the material sought as it bears upon the issue of guilt or innocence outweighs the privilege against disclosure, and that the request is not overbroad, oppressive, or unreasonably burdensome.

The vices of overbreadth and undue burden are not specifically addressed by Rule 11-514 or the statutory privilege applicable to nonjudicial proceedings. But the rules of civil and criminal procedure generally applicable to subpoenas declare that “[a] party or an attorney responsible for the issuance and service of a subpoena shall take reasonable steps to avoid imposing undue burden or expense on a person subject to that subpoena. The court on behalf of which the subpoena was issued shall enforce this duty ....” Rule 1-045(C)(1) NMRA; Rule 5-511(C)(1) NMRA; see also Rule 1-045(C)(3)(a)(iv) NMRA (subpoena can be quashed or modified if it “subjects a person to undue burden”); Rule 5-511(C)(3)(a)(iv) NMRA (same).

Any subpoena duces tecum (seeking documents) in New York must pass the threshold requirement that the material sought be relevant and material to facts at issue in a pending judicial proceeding. Valdez v. Sharaby, 258 A.D.2d 458, 684 N.Y.S.2d 595 (2d Dep't 1999). As one court expressed:

In order to require production [of documents and things] prior to trial, the moving party must show that 1) the materials are relevant and evidentiary; 2) the request is specific; 3) the materials are not otherwise procurable reasonably in advance of trial by the exercise of due diligence; 4) the party cannot properly prepare for trial without such production and inspection in advance of trial and the failure to obtain such inspection may tend unreasonably to delay the trial; and 5) the application is made in good faith and is not intended as a general 'fishing expedition'.

People v. Price, 100 Misc.2d 372, 379, 419 N.Y.S.2d 415, 420 (N.Y. Sup. Ct. Bronx Cty. 1979). Put another way, the subpoena duces tecum may not be used to "fish" for impeaching material. People v. Bova, 118 Misc.2d 14, 460 N.Y.S.2d 230 (N.Y. Sup. Ct. Kings Cty. 1983).

While any subpoena can be quashed for being overbroad, see, e.g. W. 16th Realty Co. v. Ali, 176 Misc.2d 978, 676 N.Y.S.2d 401 (Civ. Ct. N.Y. Cty. 1998), this rarely occurs when the request bears a reasonable relation to the subject matter and is supported by a factual basis. Requests to journalists usually seek notes or outtakes from a specific or discrete number of published articles or broadcasts. Such targeted subpoenas are unlikely to be deemed overbroad, and even less so when the requestor anticipates being challenged under the much stricter Shield Law requirements.

In cases where the Shield Law is invoked, therefore, the threshold requirements are touched on only generally. See, e.g., Bova, 118 Misc.2d 14 (subpoena may not be used for "fishing"). The Shield Law requirements, that the material must be (i) highly material and relevant, (ii) critical or necessary to the maintenance of a party's claim, defense, or proof of an issue material thereto, and (iii) not obtainable from any other source, creates such a high burden that it virtually ensures that any subpoena passing the Shield Law test has, by definition, passed the much less rigorous test of Price, applicable to subpoenas generally.

Any person served a subpoena to produce documents may move to quash or modify the subpoena on numerous grounds, including that it is "unreasonable or oppressive." N.C. R. Civ. P. 45(c)(3)(d); Quick v. Quick, 305 N.C. 446, 290 S.E.2d 653 (1982). A subpoena may not be used to conduct a "fishing or ransacking expedition," and it is possible to move to quash a subpoena because it is overly broad. Vaughan v. Broadfoot, 267 N.C. 691, 149 S.E.2d 37, 44 (N.C. 1966).

A media party served with a subpoena can object based on the subpoena being overbroad or unduly burdensome. Compliance is thereafter not required unless the party serving the subpoena files a motion to compel, and a judge makes a determination that the subpoena is not overly broad or unduly burdensome.

Okla. Stat. tit. 12, § 2004.1(C)(1) requires a party or attorney issuing a subpoena to “take reasonable steps to avoid imposing undue burden or expense on a person subject to that subpoena.”  A court can impose sanctions for a breach of this duty.  If a court enforces a subpoena, the order “shall protect any person who is not a party or an officer of a party from significant expense resulting from the inspection and copying commanded.”  Likewise, § 2004(C)(3)(a)(2) allows a court to quash a subpoena on the ground that it “subjects a person to undue burden.”

No statutory or case law addressing this issue.

In civil lawsuits, a reporter may object to a subpoena or discovery request on the grounds that the subpoena is overly broad or unreasonably burdensome. See Pa. R. Civ. P. 4003.1(a), 4011(b).

A reporter who is served with a subpoena can obtain a protective order for “good cause shown” – including if the subpoena is overly broad or unreasonably burdensome. See Pa. R. Civ. P. 4012(a). The protective order may limit the scope of the subpoena or prohibit the discovery completely.

In criminal cases, a reporter may object to a subpoena that seeks irrelevant information or is overly broad. See Commonwealth v. Mejia-Arias, 734 A.2d 870, 878-79 (Pa. Super. 1999) (citing In re Grand Jury Proceedings Jacqueline Schofield, 486 F.2d 85, 91 (3d Cir. 1973) (“Among the defenses which may be presented in resisting a subpoena are the obvious constitutional defenses of unreasonable search and seizure, and self-incrimination[.] But many nonconstitutional defenses are also available, including undue breadth[] [and] improper inclusion of irrelevant information[.] . . .” (internal citations omitted))).

In a grand jury investigation, a reporter can challenge a subpoena if it seeks information that is not relevant to the investigation. A court will enforce the subpoena, however, if the government submits an affidavit, commonly referred to as a “Schofield” affidavit, stating that the information sought “is at least relevant to an investigation being conducted by the grand jury and properly within its jurisdiction, and is not sought primarily for another purpose.” Robert Hawthorne, Inc. v. Cty. Investigating Grand Jury, 412 A.2d 556, 560-61 (Pa. 1980) (quoting In re Grand Jury Proceedings, 486 F.2d at 93; see also In re June 1979 Allegheny Cty. Investigating Grand Jury, 415 A.2d 73, 78 (Pa. 1980). Generally, grand jury subpoenas will not be quashed on grounds that they would cause an economic burden or are inconvenient. See Robert Hawthorne, 412 A.2d at 560, 562.

In criminal cases, a reporter may object to a defendant’s subpoena if it seeks irrelevant information or is overly broad. See Mejia-Arias, 734 A.2d at 878-79.

A Motion to Quash may be made on the grounds that the subpoena is too broad and unduly burdensome.

If a motion for a protective order is made on grounds that a subpoena is overbroad or unduly burdensome, the court hearing the motion will be required to make a determination on the issue to rule on the motion.

There are no special conditions for media subpoenas.

No specific provision of the shield law prohibits a subpoena from being overbroad or unduly burdensome, but compliance with its express requirements would likely, in most cases, lead a court to limit subpoenas that were otherwise overly broad or unduly burdensome. Further, the requirements of the Tennessee Rules of Civil Procedure and the Tennessee Rules of Criminal Procedure may provide some additional protection in their general limitations on all subpoenas. See Tennessee Rule of Civil Procedure 45.07 (authorizing a court to limit or quash a subpoena that is "unreasonable or oppressive"); Tennessee Rule of Criminal Procedure 17(d) (similar restriction on subpoenas for documents and things).

The subpoenaing party must make a clear and specific showing that the subpoena is not overbroad, unreasonable, or oppressive and, when appropriate, will be limited to the verification of published information and the surrounding circumstances relating to the accuracy of the published information. See Tex. Civ. Prac. & Rem. Code §22.024(2). See also Tex. Code Crim. Proc. art. 38.11, §5(b)(1). There is no similar provision in the section governing the privilege concerning criminal subpoenas seeking information concerning confidential sources.

There is no statutory or case law specific to this issue with respect to subpoenas of news media outlets or reporters. However, rules of civil and criminal procedure relating to subpoenas generally require parties or attorneys who serve subpoenas to “take reasonable steps to avoid imposing undue burden or expense on a person subject to that subpoena.” Utah R. Civ. P. 45(e)(1); see also Utah R. Civ. P. 26(b)(2) and 26(c); Utah R. Crim. P. 14(b) (“The court may quash or modify the subpoena if compliance would be unreasonable.”). The court is required to quash or modify a subpoena in a civil case if the court is presented with a motion requesting that the subpoena be quashed or modified and if the court determines that the subpoena “fails to allow reasonable time for compliance,” “requires the person to disclose privileged or other protected matter and no exception or waiver applies,” or “subjects a person to undue burden or cost.” Utah R. Civ. P. 45(c)(3).

The standards for quashing a subpoena on these grounds are the same as those for quashing a subpoena in any civil or criminal case.

A court may issue a protective order to protect a person from “annoyance, embarrassment, oppression, or undue burden or expense.” See Rules of the Supreme Court of Virginia, Rule 4:1(c).

Rule 4:1(b)(1) of the Rules of the Supreme Court of Virginia states that the frequency or extent of use of discovery in civil cases may be limited by the court if “the discovery 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.”

Rule 3A:12(b) of the Rules of the Supreme Court of Virginia states that when “subpoenaed writings and objects are of such nature or content that disclosure to other parties would be unduly prejudicial, the court, upon written motion and notice to all parties, may grant such relief as it deems appropriate, including limiting disclosure, removal, and copying.”

Washington's case law has not yet squarely addressed this issue. See Section II.A (Shield law statute) above.

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.

No special procedural rules or defenses apply to the reporter's privilege when determining whether a subpoena is overbroad or unduly burdensome.

Not applicable.