6. Material is not cumulative

The United States District Court for the District of Colorado applied Silkwood's four-factor test in Re/Max Int'l Inc. v. Century 21 Real Estate Corp., 846 F. Supp. 910 (D. Colo. 1994). Century 21 brought a variety of claims, including unfair competition, based upon Re/Max's nationwide advertising campaign. A local newspaper published an article discussing Re/Max's challenge to Century 21 to determine who was the best real estate company. Century 21 subpoenaed the reporter merely to authenticate statements appearing in the article. The Court quashed the subpoena because Century 21 failed to show the information sought was substantially relevant to a central issue in the case, and that the information could not be obtained from other reasonable sources. The evidence sought from the reporter -- to confirm that published statements had been uttered by a previous witness in the case, to impeach his deposition testimony -- was also deemed cumulative of other evidence in the record.

 

Compare Wood v. Farmingham City, in which the privilege was overcome despite the availability of three other sources.  No. 2:10-cv-933-DB-PMW, 2011 U.S. Dist. LEXIS 133940 (D. Utah Nov. 21, 2011).  In Wood, the decedent’s estate brought suit against police alleging violation of decedent’s civil rights after police shot and killed decedent in a standoff.  A reporter, along with three other individuals, witnessed the standoff from a room in a building across the street.  Deposition testimony from the other individuals suggested that the reporter had the best vantage point and benefited from the use of a camera with a zoom lens and spotting scope.  The subpoena did not request any documents or photographs be produced, only that the reporter appear for a deposition.  The court found the privilege was overcome because the reporter was the only objective witness available (the other witnesses were associated with either the police or the decedent) and because the information was highly relevant to the claims and defenses.  These factors, on balance, outweighed the heightened requirement applicable to a civil case and the fact that other sources were available.

There is no reported First Circuit decision specifically addressing this issue.

Courts in the Second Circuit have noted that if material sought from a reporter is unduly cumulative of other evidence, it cannot be "necessary or critical to the maintenance of the claim." See United States v. Burke, 700 F.2d 70, 78 (2d. Cir. 1983); In re McCray, Richardson, Santana, Wise, and Salaam Litig., 928 F. Supp. 2d 748 (S.D.N.Y. 2013), aff'd sub nom. In re McCray, Richardson, Santana, Wise, Salaam Litig., 991 F. Supp. 2d 464 (S.D.N.Y. 2013); Application of Behar (Church of Scientology v. IRS), 779 F. Supp. 273, 275 (S.D.N.Y. 1991); United States v. Markiewicz, 732 F. Supp. 316, 321 (N.D.N.Y. 1990). For example in Application of Behar (Church of Scientology v. IRS), 779 F. Supp. 273 (S.D.N.Y. 1991), the Church of Scientology tried to obtain information from the IRS, but the IRS refused to disclose the information. The IRS cited an article written by Behar in Time magazine, which supported its claim that release of certain information would place persons in danger of harm from the church. The church then subpoenaed Behar regarding his communication with the IRS. The court held that the non-confidential information sought by the Church of Scientology from Behar was not necessary or critical because the IRS had 18 other pieces of evidence in support of the church's exemption claim and the information sought was therefore cumulative of other evidence. Behar, 779 F. Supp. at 275.

Courts in the Third Circuit do not appear to have expressly addressed this point, but in Riley, in the course of concluding that a subpoena should be quashed, the court observed that, since multiple witnesses had testified that a certain person had provided information about the plaintiff to the reporter, the plaintiff had failed to show that the reporter's testimony on the same subject was necessary. 612 F.2d at 718.

Whether the expected testimony or material would be cumulative is not a separate category in the reporter’s privilege analysis under LaRouche but factors into the other categories, particularly the subpoenaing party’s compelling interest in the information. “If the material sought turns out to be simply cumulative or useful only for impeachment purposes, then the Plaintiff’s ‘need’ is not nearly as great as in other situations.” Bauer v. Brown, 11 Media L. Rep. 2168, 2172 (W.D. Va. 1985). In Shain, the Fourth Circuit required the reporters to testify about their interviews with the criminal defendant senator, even though the government already had videotape evidence of the defendant committing the crime. However, the Court indicated it might have ruled differently had the reporters’ testimony not promised to add evidence of mens rea. See Shain, 978 F.2d at 853; see also United States v. Sterling, 818 F.Supp.2d 945, 947 (E.D. Va. 2011) rev’d on other grounds, 742 F.3d 482 (4th Cir. 2013) (granting motion to quash in part because reporter’s “testimony would simply amount to ‘the icing on the cake.’”).

In civil cases, if the information sought is already available from other sources, it may not be subpoenaed under the reporter's privilege. Miller v. Transamerican Press, Inc., 621 F.2d 721, 725, as modified, 628 F.2d 932 (5th Cir. 1980). If the subpoenaed material would provide new information that is necessary to the case and unobtainable from other sources, however, the reporter's privilege might be more readily overcome. Miller, 628 F.2d 932 (5th Cir. 1980).

In criminal cases involving non-confidential sources or information, the privilege does not apply. United States v. Smith, 135 F.3d 963, 971 (5th Cir. 1998). Instead, absent the qualified privilege, the government merely needs to identify the information it seeks with sufficient specificity and show that it is relevant and admissible -- that is, the general test for the sufficiency of any subpoena. Id. at 972. Of course, purely cumulative material may not satisfy the test for relevancy under the Federal Rules of Evidence. See Fed. R. Evid. 401. In Smith, however, the Fifth Circuit disagreed with the district court's conclusion based on its in camera inspection that the information sought in that case was cumulative, because "[m]ultiple contradictory stories told by a defendant can demonstrate a consciousness of guilt." Smith, 135 F.3d at 972-73.

Where information requested in a subpoena may duplicate with other information gathered elsewhere, disclosure of the information may be denied. In re Daimler Chrysler, 216 F.R.D. 395 (E.D. Mich. 2003).

There is no statutory or case law addressing this issue.

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

In order to overcome a valid assertion of the reporter’s privilege, the subpoenaing party must request material that is non-cumulative. See Shoen II, 48 F.3d at 416 (reversing a contempt citation against a defendant who refused to produce materials pursuant to a discovery request in the underlying defamation lawsuit, finding that the requested material was cumulative because there had been considerable litigation over the alleged statements); Wright, 206 F.R.D. at 682 (denying the defendants’ motion to compel in part because the defendants’ discovery requests sought documents that had already been provided by the plaintiffs and were therefore cumulative); Carushka, 17 Med. L. Rep. 2001, at *3 (denying the motion to compel unpublished information and refusing leave to depose magazine editor because the testimony sought might “prove cumulative in light of the plaintiff’s deposition and trial testimony”); United States v. Schneider, 2003 U.S. Dist. LEXIS 27324, at *19 (granting motion to quash where information sought from journalists was cumulative, noting that “[t]he government fails to demonstrate that this information is unavailable elsewhere, or that the experience of the reporters was somehow unique” to that of other individuals who were present at an event covered by the reporters); Newland, 2021 WL 6051675, at *4 (approving a motion to compel a recording containing commentary from a key witness because the witness’s trial testimony would “not likely cover the facts” in question and therefore was not cumulative). But see Beaver Cty. Emp’rs Ret. Fund v. Tile Shop Holdings, Inc., No. 16-MC-80062-JSC, 2016 WL 3162218, at *5 (N.D. Cal. June 7, 2016) (finding that a request for the identity of potential witnesses who could provide “dispositive, undisputed” evidence of an important fact was not cumulative despite extensive prior discovery having already yielded sources who could corroborate that fact to a lesser degree of certainty).

In Alabama, the subpoenaing party must demonstrate that it has unsuccessfully attempted to obtain requested information from other sources less chilling of First Amendment freedoms. Norandal USA, Inc. v. Local Union No. 7468, No.: CV-86-136, 13 Med. L. Rptr. 2167 (Jackson County, Ala. Cir. Ct., Sept. 11, 1986). Alternatively stated, when deciding whether subpoenaed information is privileged, a court should consider whether the information can be obtained by alternative means. Id.

Alaska appellate courts have not had occasion to squarely address the existence or scope of a reporter's privilege. The same rules of evidence precluding submission of evidence that would be cumulative provide an additional or alternate grounds for quashing a subpoena, and an argument that dovetails with the constitutional requirement that the information sought not unavailable from other sources.

The Arizona Media Subpoena Law requires the subpoenaing party to attest that "the information sought is not protected by any lawful privilege." A.R.S. § 12-2214(A)(5). Under the First Amendment privilege recognized in both Reinstein, 240 Ariz. at 449-50, 381 P.3d at 243-44, and Shoen v. Shoen, 48 F.3d 412, 416 (9th Cir. 1995), the evidence must show that the requested material is "(1) unavailable despite exhaustion of all reasonable alternatives sources; (2) non-cumulative; and (3) clearly relevant to an important issue in the case." Shoen, 48 F.3d at 416; Reinstein, 240 Ariz. at 449-50, 381 P.3d at 243-44. The privilege cannot be easily defeated: "[I]n the ordinary case the civil litigant's interest in disclosure should yield to the journalist's privilege. Indeed, if the privilege does not prevail in all but the most exceptional cases, its value will be substantially diminished." Id. Accordingly, a request for merely cumulatively material cannot trump the First Amendment.

A subpoena is more likely to be quashed if the material or information sought would be merely repetitive or cumulative. See Ruiz, supra.

While the courts have some authority to compel disclosure in civil cases in which the reporter is a party, trial courts should not enforce subpoenas seeking cumulative information. 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.

In determining whether a criminal defendant may obtain privileged information, the trial court must weigh whether alternative sources for the information exist. 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).

The Shield Law provides, in part, that a privilege will exist for a newsperson unless the information is not available by any other reasonable means. C.R.S. § 13-90-119(3)(b). As a consequence, if the material is available from another source, the privilege will protect the newsperson. Thus, if the material is cumulative, the newsperson will be able to assert the privilege. See, e.g., Henderson, 879 P.2d at 393 (helicopter pilot can assert the privilege because information available from other sources); Re/Max, 846 F. Supp. at 912 (information sought only of de minimis value).

See VI-A supra. General Statutes section 52-148e allows a court to quash a subpoena that is “unreasonable and oppressive.” Moreover, a subpoena may be quashed or limited if it requests material that would be cumulative of other evidence in the case. See, e.g., State v. Weiner, 753 A.2d 376 (Conn. App. 2000).

If the material sought would be cumulative, the equities considered during the judicial balancing process should weigh in favor of nondisclosure, whether the court applies the two-prong or three-prong privilege test.  E.g., Zerilli v. Smith, 656 F.2d 705 (D.C. Cir. 1981); Grunseth v. Marriott Corp., 868 F. Supp. 333, 335-36 (D.D.C. 1994).

If the material or testimony will be cumulative of other materials or testimony, it does not meet the "necessary" or "critical" standard in a civil case or a criminal case where the state seeks the information, and the privilege will be maintained. See supra, Part VI.B.2. See also Fuester v. Conrail, 22 Media L. Rep. (BNA) 2376, 2378 (Del. Super. 1994).

Likewise, cumulative materials in criminal cases where the defendant seeks materials have been disallowed. See State v. Hall, 16 Med. L. Rptr. 1414 (March 8, 1989) (quashing subpoena for testimony when reporters attended a rally in their official capacities and personally witnessed the disorderly conduct in question, when other witnesses were available); State v. Cordrey, C.A. No. 88-07-0000A, Barbiarz, J. (Del. Super. Sept. 28, 1988) (Transcript) (quashing subpoena where reporter was not the only one present who witnessed procedural events in courtroom that may have created jeopardy).

If the material sought would be cumulative, the equities taken into consideration during the judicial balancing should weigh in favor of non-disclosure.  See, e.g., Zerilli v. Smith, 656 F.2d 705 (D.C. Cir. 1981).

When the information in the journalist’s possession would be cumulative, counsel for the reporter should argue that that information is available from alternative sources and that there is no compelling need for disclosure (i.e., a miscarriage of justice will not result if the journalist is allowed to maintain the secrecy of his or her information or sources).

The Georgia privilege cannot be overcome where a party seeks testimony or materials that would be cumulative of existing evidence. See, e.g., In re Paul, 270 Ga. 680, 687, 513 S.E. 2d 219, 225 (1999) (“Not only does the state have at least two confessions on videotape, where the jury can observe the defendant, but the state also presented expert testimony of a forensic psychiatrist. Thus, the state does not need the reporter's testimony to prepare or present its case to the jury concerning Jill's mental state when he confessed to police.”).

There is no authority in Hawai'i addressing this factor.

If the information sought is merely cumulative, that fact should be emphasized as an indication that the party seeking the information cannot satisfy the second prong of the Branzburg test, i.e., that the party can obtain the information from alternative means and therefore it is unnecessary to compel the testimony of the media witness. In re Wright, 108 Idaho at 121, 700 P.2d at 43.

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). However, “[i]nformation is not necessarily oppressive or unreasonable because similar evidence can be gleaned from another source.” Hueck v. State, 590 N.E.2d 581, 586 (Ind. App. 1992); see Stone v. State, 536 N.E.2d 534, 537 (Ind. App. 1989) (relevant evidence will not be rejected simply because it is cumulative unless it creates undue prejudice, such as a parade of witnesses offering consistent testimony).

No reported cases or statutory authorities address the issue.

The party seeking to enforce a subpoena served on a journalist must show that the information he or she seeks is not “readily available by alternative means,” K.S.A. 60-482(a)(2), a showing that cannot be made if the information in issue is cumulative.  A similar result would obtain in federal courts applying the qualified privilege described in Silkwood.

In Lexington Herald-Leader Co. v. Beard, 690 S.W.2d 374, 375 (Ky. 1984), the Kentucky Supreme Court approved of a trial court requiring the subpoenaing party to exhaust other methods of discovery to obtain the relevant information, which included depositions and extensive interrogatories before addressing the subpoena to the news reporters.

Under the shield law, the party seeking unpublished information must show that the material is not "obtainable from any alternative source." La. R.S. 45:1459(B)(1)(c).

In Smith, the United States Fifth Circuit found that the requested evidence concerning a defendant's guilt was not considered cumulative even though the government already possessed the defendant's statements because "multiple contradictory stories told by a defendant can demonstrate a consciousness of guilt." Smith, 135 F. 3d at 972.

Although no Maine court has specifically addressed the issue, the Court would consider whether material sought was cumulative or, instead, unique and therefore necessary. If confidential sources and information is merely cumulative, such sources and information would presumably be protected from disclosure because such information would no longer be critical or necessary "to the maintenance of a party's claim, defense or proof of an issue material to the claim or defense." 16 M.R.S.A. § 61(2)(A)(2).

Maryland law has not addressed this.

The cumulative nature of the potentially privileged material is a relevant consideration evaluating the burden of the subpoena. Summit Technology, Inc. v. Healthcare Capital Group, Inc., 141 F.R.D. 381 (D. Mass. 1992).

Although there have been no appellate cases discussing this precise issue, other federal courts have considered it. See Bauer v. Brown, 11 Media L. Rep. 2168 (W.D. Va. 1985) (requiring information sought in a subpoena to be noncumulative for it to proceed).

In State v. Knutson, the court of appeals considered the eyewitness testimony of a reporter, as a more or less nonbiased source, to be noncumulative despite the availability of other eyewitnesses who presented conflicting testimony. 523 N.W.2d 909, 912 ñ.13 (Minn. App. 1994).

There is no statutory or case law addressing this issue.

There is no statutory or case law addressing this issue.

Under the shield law, it does not matter if the subpoenaed testimony or material would be cumulative. However, see the discussion of the Slavin case above.

No reported cases.

The discovery commissioner and district court judges are generally entitled to make a determination as to whether a subpoena seeks cumulative information 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 case law or statute that expressly addresses the significance of whether the material or information subpoenaed would be cumulative. However, if the information sought is cumulative, it is unlikely that the subpoenaing party could successfully satisfy the first prong of the Siel test, i.e., that he or she has been unable to obtain the information through alternative means.

Under the standards set forth in the statute cumulative material would be available from another source and therefore the criminal defendant could not overcome the privilege.

The reporter’s privilege should protect cumulative material – which, by definition, is not “crucial to the case of the party seeking disclosure,” Rule 11-514(C)(3) NMRA, or “essential to prevent injustice,” NMSA 1978, § 38-6-7(A), (C) (1973).

If the subpoenaed material or testimony is merely cumulative, it "cannot be credibly urged that the proffered evidence is necessary or critical." United States v. Marcos, 17 Med. L. Rep. 2005, 1990 WL 74521, *4 (S.D.N.Y. 1990); see also In re Home Box Office, Inc., 2019 WL 2376515 at *5 (N.Y. Sup. Ct., N.Y. Cty. 2019) (quashing subpoena where the video footage sought would have been “cumulative” of witness testimony, which the court identified as “the best evidence” in the case). Accordingly, the Shield Law protects such material from disclosure. See also United States v Burke, 700 F.2d 70, 78 (2d Cir.), cert. denied, 464 U.S. 816 (1983) (interpreting the First Amendment privilege).

In State v. Pallas, 144 N.C. App. 277, 282, 548 S.E.2d 773, 778 (N.C. App. 2001) (a non-media case), the North Carolina Court of Appeals held that a subpoena could be quashed because the proposed testimony would have been cumulative or immaterial.

Whether the expected testimony or material would be cumulative is probably relevant, since one factor to be considered is whether the information is available from another source.

This issue has not been addressed by the Oklahoma courts, but presumably, if the material sought would be cumulative, then the party seeking the information could not demonstrate that the information could not be obtained with due diligence by alternate means.

In a criminal case, information is not material if there is other evidence which can prove the same point. State v. Pelham, 136 Or. App. 336, 901 P.2d 972 (1995); State ex rel. Meyers v. Howell, 86 Or. App. 570, 740 P.2d 792 (1987).

In order to overcome the First Amendment privilege, a reporter must be “the only source” of the information. See, e.g., Davis v. Glanton, 705 A.2d 879, 885-86 (Pa. Super. 1997).

The Rhode Island Shield Law provides that a party seeking to divest the privilege must show "that there is substantial evidence that disclosure of the information or of the source of the information is necessary to permit a criminal prosecution for the commission of a specific felony, or to prevent a threat to human life, and that the information or the source of the information is not available from other prospective witnesses." R.I. Gen. Laws § 9-19.1-3.

If the testimony or production would be cumulative, an argument can be made that the exhaustion and relevancy prongs of the shield law test cannot be met.

This was not specifically addressed in Hopewell, although it should be raised, nevertheless, in any contested case.

Tennessee Rules of Evidence 403 precludes the "needless presentation of cumulative evidence," even where that evidence may be relevant. The subsection of the shield law that requires the subpoenaing party to prove, by clear and convincing evidence, that the testimony sought be "clearly relevant," Tenn. Code Ann § 24-1-208(c)(2)(A), may support an argument that evidence that would cumulative, and thus could be excluded under Tennessee Rule of Evidence 403, should not be compelled from a journalist. There is no case law specifically on this issue.

Generally, under both the civil and criminal statute, the party who issued the subpoena must demonstrate they have exhausted all reasonable efforts to get the information elsewhere. Therefore, if the expected testimony or material would be cumulative, it may not be obtained.  This does not apply in the case of a criminal subpoena when the “disclosure of the confidential source is reasonably necessary to stop or prevent reasonably certain death or substantial bodily harm.”  Tex. Code Crim. Proc. art. 38.11 §4(a)(4).

See Section IV.B.2. above.

There are no reported Vermont cases interpreting the Vermont Shield Law’s provision that the information “could not, with due diligence, be obtained by alternative means.”  12 V.S.A. § 1615(b)(2)(A)(ii).  If the information sought is duplicative of other testimony or duplicative evidence on the same issue, it is unlikely that the standard will be satisfied.

Rule 4:1(b)(1) of the Rules of the Supreme Court of Virginia states that the frequency or extent of use of civil discovery may be limited by the court if “the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive.”

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

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

For a court to issue a subpoena under the shield law’s qualified privilege, the non-confidential information sought must be “necessary to the maintenance of a party's claim, defense, or to the proof of an issue material to the investigation, prosecution, action, or proceeding.”  Wis. Stat. § 885.14(2)(c)(2).

Not applicable.