a. Necessity

In United States v. LaRouche Campaign, 841 F.2d 1176 (1st Cir. 1988), NBC appealed a ruling from the district court of Massachusetts ordering NBC to produce outtakes of an interview with a key witness for in camera review. NBC argued that the district court should not have ordered in camera review because the defendants had not shown that the subpoenaed material was sufficiently evidentiary. Id. Interpreting Fed. R. Crim. P. 17(c), the First Circuit held that although NBC had raised First Amendment concerns, the balance fell in favor of the defendants because the information was not confidential. Id. at 1180.

A court is not legally required to hold an in camera review of materials sought. Many judges consider in camera review necessary to determine if the information is privileged. If the party seeking to quash is unable to adequately explain why the materials should be protected without disclosing confidential information, then in camera review may be essential to an informed ruling. See N.Y. Times Co. v. Gonzales, 459 F.3d 160, 171 (2d Cir. 2006).

Courts in the Third Circuit are not required as a matter of course to conduct an in camera (that is, private) review of the subpoenaed material before deciding whether to quash a subpoena. In practice, however, a court will on occasion seek do so in the course of applying the three-part test for whether the First Amendment-based privilege can be overcome. A court properly can only compel in camera review if the party issuing the subpoena first makes a threshold showing that the information sought is unavailable elsewhere and consists of relevant evidentiary material. See, e.g., Cuthbertson I, 630 F.2d at 148-49; Kohn, Nast & Graf, P.C., 853 F. Supp. at 149.  This threshold requirement is applicable in both criminal and civil cases. Kohn, Nast & Graf, P.C., 853 F. Supp. at 149 n.6.

The federal rules and the local rules of the district courts in the Fourth Circuit do not direct the court to conduct an in camera review of materials or interview with the reporter prior to deciding on a motion to quash, and the case law indicates judges in the Fourth Circuit rarely conduct such reviews or interviews before ruling on a motion to quash. In camera reviews are apparently used more frequently for other purposes, for example, in deciding on a motion to restrain publication, United States v. King, 194 F.R.D. 569, 572 (E.D. Va. 2000), or as a safeguard after a media entity is ordered to comply with a subpoena, Food Lion Inc. v. Capital Cities/ABC, Inc., 951 F. Supp. 1211, 1216, 25 Media L. Rep. 1182 (M.D.N.C. 1996) (Judge agrees to sit in on depositions and, if defendants feel an answer should be privileged, hear answer out of presence of plaintiff’s counsel and determine whether privilege should apply.).

Although there is no specific requirement that judges conduct an in camera review of materials prior to deciding a motion to quash, United States v. Arditti, 955 F.2d 331, 345 (5th Cir. 1992), courts often do. See, e.g., Miller v. Transamerican Press, Inc., 621 F.2d 721, 723, as modified 628 F.2d 932 (5th Cir. 1980); In re Selcraig, 705 F.2d 789, 795 (5th Cir. 1983). In Arditti, the court held that the trial court did not abuse its discretion when it declined to review documents subpoenaed by the IRS before determining that they were not privileged. Arditti, 955 F.2d at 345 (5th Cir. 1992). However, in Selcraig, the trial court endeavored to elicit the subpoenaed testimony in camera prior to revealing the information to the plaintiff's lawyers in order to determine whether it was relevant to the plaintiff's claim. In re Selcraig, 705 F.2d at 794-95. The court also undertook an in camera inspection in Miller before concluding that certain documents and summaries had to be produced to the plaintiff. Miller, 621 F.2d at 723.

Federal law does not require federal courts to conduct an in camera inspection of subpoenaed materials claimed to be privileged. Where information subject to a subpoena is withheld because it is claimed to be privileged (such as the reporter's privilege), the reporter should assert the First Amendment reporter's privilege expressly in any written objection delivered to the litigant or attorney responsible for the subpoena and in any papers filed with the court. Depending on the nature of the contested materials, the reporter may be required to put together what is called a "privilege log." The privilege log is supposed to describe the nature of the assertedly privileged information in such a way as to "enable the demanding party to contest the claim" of privilege. The privilege log's descriptions would be brief, but include facts that are relevant to the claim of privilege, such as whether confidentiality was promised, or whether the record was generated by the journalist pursuant to his newsgathering duties. See Fed.R.Civ. P. 45(d)(2).

Federal law does not preclude the subpoenaed person from asking for an in camera inspection of the contested materials by the court. If the court orders an in camera inspection, and the journalist does not desire one (for example, to protect the identity of a confidential source), the journalist should object.

No cases suggest that an in camera review is required. Such decisions are left to the discretion of the trial court. United States v. Phillips, 854 F.2d 273, 277 (7th Cir. 1988). Nevertheless, many districts courts have engaged in such reviews. United States v. Bingham, 765 F. Supp. 954, 956 (N.D. Ill. 1991) (in camera review of video outtakes for purposes of reporters' privilege); Warnell v. Ford Motor Co., 183 F.R.D. 624, 625 (N.D. Ill. 1998) (in camera review of videotape for purposes of reporters' privilege).  See also Webb v. CBS Broad., Inc., 2011 U.S. Dist. LEXIS 3458, at *32 (N.D. Ill Jan. 13, 2011) (in camera review of reporter’s notes to determine scope of discovery).

A court will conduct in camera review of redacted material that a reporter has asserted is both privileged and not relevant when the requesting party provides sufficient evidence “justifying a good faith belief that the redacted material” is relevant. Planet Aid, Inc. v. Reveal, Ctr. for Investigative Reporting, No. 17-CV-03695-MMC, 2019 WL 935131, at *2 (N.D. Cal. Feb. 26, 2019) (allowing for in camera review of redacted material in a defamation case when the record showed that the redacted material at issue was from a conversation involving both the defendant reporter and his source for the allegedly defamatory articles).

There is no Alabama statutory or reported case law addressing whether, prior to deciding a motion to quash, the court must conduct an in camera review of the subpoenaed material or interview the subpoenaed reporter.

Alaska appellate courts have not had occasion to squarely address the existence or scope of a reporter's privilege, and the shield law does not direct a court to conduct an in camera review of materials or interview with the reporter prior to deciding a motion to quash, nor has there been a practice of doing so in the trial courts that have addressed privilege claims.

No statutory or case law addresses the issue of in camera review in the context of moving to quash a media subpoena. In Cooper Tire, 218 Ariz. at 55-56, 178 P.3d at 1179-80, the Court of Appeals noted the lower court’s use of in camera review to decide an issue under the Media Shield Law but did not address the issue specifically. In other contexts, Arizona courts have endorsed in camera review as an efficient means of resolving discovery and other disputes. See, e.g., Carlson v. Pima County, 141 Ariz. 487, 491, 687 P.2d 1242, 1246 (1984) (courts may review in camera public records that government officials have refused to disclose under A.R.S. § 39-121 et seq. (the "Arizona Public Records Law")).

There is no statute, court rule or case law that directs a court to review material in camera before ruling on a motion to quash.

No statute mandates that the trial court conduct an in camera review of the materials before determining whether they should be released, and the California Supreme Court has rejected the idea that in camera review is required in every case. See Delaney v. Superior Court, 50 Cal. 3d 785, 813, 789 P.2d 934, 268 Cal. Rptr. 753 (1990). However, California case law does “encourage parties to allow disputed materials to be examined by the trial court in camera” as a possible means of resolution. SCI-Sacramento, Inc. v. Superior Court, 54 Cal. App. 4th 654, 662, 62 Cal. Rptr. 2d 868 (1997). Moreover, the California Supreme Court has concluded that “[w]hen a criminal defendant [] seeks confidential or sensitive information, the practical need for an in camera hearing is obvious.” Delaney, 50 Cal. 3d at 814. The court held that if a trial court determines that “a newsperson’s claim of confidentiality or sensitivity is colorable,” “it must then receive the newsperson’s testimony in camera.” Id. Finally, for a defendant to challenge an in camera proceeding, he must show how the in camera proceeding negatively influenced his ability to present a defense or receive assistance from counsel; an unsubstantiated claim is insufficient. People v. Ramos, 34 Cal. 4th 494, 527, 101 P.3d 478, 21 Cal. Rptr. 3d 575 (2004).

There are no requirements that the court conduct an in camera review of the materials before ruling on a Motion to Quash. Nor are there any requirements that the court conduct an interview of the reporter.

Neither the Shield Law nor the case law directs a court to conduct an in camera review of materials or interview with the reporter prior to deciding a motion to quash. Judges have, of course, done the former to determine, e.g., whether the documents, film, negatives and the like constitute unique pieces of relevant data not obtainable from non-media sources.

In the grand jury context, the D.C. Circuit has permitted in camera, ex parte review of secret evidentiary submissions in support of enforcement of subpoenas.  In re Miller, 397 F.3d 964, 973-74 (D.C. Cir. 2005), opinion superseded by 438 F.3d 1141 (D.C. Cir. 2006).  There, the D.C. Circuit rejected the reporters’ argument that denial of access to this evidence constituted violation of their due process rights because of well-established authority that “a district court can ensure [grand jury] secrecy is protected by provisions for sealed, or when necessary ex parte, filings.”  Id. at 973 (citing In re Grand Jury, 121 F.3d 729, 757 (D.C. Cir. 1997)).  Judge Tatel further redacted a substantial portion of his concurring opinion to preserve grand jury secrecy and to protect classified information, though the court later unsealed portions of the opinion in which the information was no longer secret.

No case law states that in camera review is required before a court may compel production of information sought from a reporter, and case law regarding other privileges suggests that in camera review is not always necessary.  E.g., Linder v. NSA, 94 F.3d 693, 696-97 (D.C. Cir. 1996) (rejecting argument that the district court should have examined sample documents in camera before ruling on the motion to quash, and stating that a “court may rely on affidavits in lieu of an in camera review when they are sufficiently detailed, as they were in this case”).  The decision whether to perform in camera review is left to the discretion of the court.  Kay v. FCC, 976 F. Supp. 23, 34 (D.D.C. 1997) (denying plaintiff’s motion for in camera review and granting defendant’s motion to quash).  However, case law also suggests that the court may proceed to review the requested information in camera if the person seeking the information has made an adequate showing of need.  E.g., In re Sealed Case, 121 F.3d 729, 745 (D.C. Cir. 1997).

Case by case.

Case law suggests that a court has discretion to order in camera review of the information at issue, and that the court generally will not exercise such discretion unless it is necessary to review the information to assess a claim of privilege.  E.g., Prentice v. McPhilemy, 27 Med. L. Rptr. 2377, 2388 (in camera review not necessary where documents undoubtedly were protected under the D.C. shield law, and premature for other documents where the person withholding the information had not indicated the specific legal basis for doing so); see also Carter v. United States, 614 A.2d 913, 916 (D.C. 1992) (noting, in the context of a different privilege, that “the trial court has discretion to conduct an in camera hearing in the course of deciding whether to require disclosure,” and holding that the trial court “should require a showing of a factual basis adequate to support” request for in camera review).

The law does not require a court to conduct an in camera review of materials or examination of the reporter, and the shield law does not contemplate in camera review as an option. The judge, in his or her discretion, may require an in camera review of the journalist’s materials. See Kidwell v. State, 730 So. 2d 670, 671 (Fla. 1998). In camera review, however, should be not be the option of first resort, as even in camera inspection impinges upon the privilege by requiring the journalist to turn over information and materials.

Georgia’s statutory privilege makes no distinction between compelling disclosure to a court for in camera review and compelling disclosure to a subpoenaing party.  Accordingly, Georgia courts have recognized that before permitting in camera review, the party seeking newsgathering materials must make a complete showing of materiality, relevance, necessity, and exhaustion sufficient to pierce the privilege.  See, e.g., State v. Spurlock, No. 16SC140434 (Fulton Cty. Super. Ct. Aug. 8, 2016) (quashing subpoena for raw video footage of police activities involving defendant).

The decision whether to conduct an in camera review of materials or information requested for production in a subpoena is within the discretion of the court.

There is no requirement that a court conduct an in-camera review.

Although there does not appear to be a mandatory law in Illinois directing a court to conduct an in camera review of materials prior to ruling on a motion to quash, some courts have stated that an in camera review of the material in question may be appropriate if an issue arises as to the appropriate scope of the disclosure order. See, e.g., In re Arya, 266 Ill. App. 3d 848, 862, 589 N.E.2d 832, 841 (1992). In such instances, the trial court should scrutinize the material in camera to ensure that its production does not abridge the protections the legislature afforded source information through the Statute. Id., 589 N.E.2d at 841. For example, in United States v. Bingham, the court discovered, during an in camera review, that numerous statements in the witness’s interview outtakes contradicted the witness’s direct examination testimony. 765 F. Supp. 954, 956 (N.D. Ill. 1991). The court held that the defendants were seeking highly relevant prior inconsistent statements by the witness when trying to divest the reporter of the privilege. Id. at 957.

The Indiana shield law does not require a court to conduct an in camera review of materials or prior to deciding a motion to quash. See Ind. Code § 34-46-4-2.

In Matter of WTHR-TV (State v. Cline), 693 N.E.2d 1 (Ind. 1998), the court said, with respect to in camera review:

"In camera review to determine materiality or the validity of any objections to production is generally within the trial court's discretion . . . . [M]ateriality need not be shown prior to disclosure where the relevance of the item is self-evident or the precise nature of the information is unknown. However, in that circumstance, the discovery rules' prohibition on fishing expeditions and burdensome requests would effectively be lost if in camera review could be obtained without a showing of at least possible relevance . . . . Accordingly, where materiality is challenged or is unknown, a showing of at least “potential materiality” is generally required to obtain in camera review of disputed items."

Id. at 8 (internal citations omitted); see also WTHR-TV v. Milam, 690 N.E.2d 1174, 1176 (Ind. 1998) (holding that the party moving for discovery must “offer a theory of ‘potential materiality’”).

An in camera inspection of materials should be conducted prior to disclosure to the party seeking the privileged information. Lamberto v. Bown, 326 N.W.2d 305, 309, 8 Med. L. Rptr. 2525 (Iowa 1982). In Lamberto, the Court noted that an in camera inspection of materials partially destroys the reporter's privilege; therefore, prior to an in camera inspection, the judge must make a threshold showing as to the compelling need of the information and whether other, less obtrusive, means of discovery have been exhausted. 326 N.W.2d at 308–09. If the court determines that the requesting party has a substantial need for the information and has exhausted other means of discovery, an in camera examination of the evidence should be ordered. Id. at 309; Nelle, 2017 WL 7049237, at * 2. The purpose of the in camera inspection is to determine whether the evidence is necessary and likely to be admissible, thereby imposing another barrier to disclosure to the requesting party. Lamberto, 326 N.W.2d at 309.

At K.S.A. 60-483, the Kansas shield law provides that:

The party claiming the privilege and the party seeking to compel disclosure shall be entitled to a hearing. After such hearing, the court may conduct an in camera inspection to determine if such disclosure is admissible. If the court then specifically finds that such disclosure is admissible and that its probative value outweighs any harm to the free dissemination of information to the public through the activities of journalists, then the court shall direct production of such disclosure and such disclosure only.

Kentucky law does not require an in camera review or interview with the reporter prior to deciding a motion to quash, but trial courts sometimes do so.

The Louisiana reporter's privilege statute does not require in camera review.

In criminal cases, the court must conduct an in camera review of any documentary evidence that may be protected by privilege before ordering disclosure, unless the subpoenaed individual or entity to whom the subpoena is directed provides in writing reasons for the failure to submit the evidence for in camera review. See Me. R. Crim. P. 17(d) (attendance of witnesses); Me. R. Crim. P. 17A(f) (documentary evidence or tangible objects).

There is no statute or case law requiring the court to conduct an in camera review of materials or interview with the reporter prior to deciding on a motion to quash.

The law does not direct a court to conduct an in camera review of materials or interview with the reporter prior to deciding on a motion to quash.

There is no statutory or other requirement for in-camera review. But cf. MCL 767.5a; MCL 767A.6. In-camera review raises other problems, but to some extent the problems depend upon the circumstances. If the subpoena is seeking confidential information, even the court should not be allowed to see the material. The attorney representing the news organization also may not want to see the material to avoid complications if the material is confidential.

The language of Bauer and Turner appears to leave some room for discretion by the district court.

There is no statutory or case law addressing this issue.

While Missouri cases have not spoken specifically on this issue, they have cited with approval the various federal cases that suggest this is important.

Should the reporter establish that the subpoena is barred under the Montana Media Confidentiality Act, the privilege is absolute and any weighing of factors in an in camera review is unnecessary. In the case of a constitutional challenge to the subpoena, there will be a weighing of factors and likely such an in camera review.

Not required before issuance. Can be requested by party resisting subpoena by filing for a protective order.

The law does not direct a court to conduct an in camera review of materials or interview the reporter prior to deciding a motion to quash.

There is no requirement that a court conduct an in camera review. However, in State v. Siel, 122 N.H. 254 (1982), the Court held that, after the trial judge "is satisfied on the facts then before him that the privilege should fail, the trial judge may also hold an in camera hearing with the reporters and, if necessary, with the source before releasing the information to the defendant." In camera review of sealed documents is common in proceedings to obtain access to those documents. See Petition of Keene Sentinel, 136 N.H. 121 (1992).

The newsperson is not required to make any disclosure, to the court or otherwise, to successfully assert the privilege. In fact the New Jersey Supreme Court has held that an in camera disclosure "represents precisely the same threat to the interests protected by the privilege as disclosure to counsel or to the world." State v. Boirdo, 82 N.J. 446 (1980).

In the context of a motion to quash a subpoena served by a criminal defendant, once the criminal defendant makes the appropriate showing that the subpoenaed materials are relevant, material and necessary to the defense, that they could not be secured from any less intrusive source, 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 court is required to review the materials or potential testimony in camera to determine the admissibility. Only if the court also finds the materials and/or testimony will be admissible will it order the materials produced or the reporter to testify.  In re Farber, 78 N.J. 259 (1978); State v. Boiardo, 82 N.J. 446 (1980).

Rule 11-514 provides that “[i]f possible,” the court will determine whether the subpoenaing party has successfully overcome the qualified reporter’s privilege “without requiring disclosure of the confidential source or information sought to be protected by the privilege.” But “[i]f it is not possible for the court to make [that] determination ... without the court knowing the confidential source or information sought to be protected, the court may issue an order requiring disclosure to the court alone, in camera.” Rule 11-514(D) NMRA.

No statute mandates that the court conduct an in camera review of the requested materials in order to determine whether or not they should be produced. However, courts have on occasion conducted in camera reviews to determine if the materials were provided to the reporter in confidence or if the materials are necessary to the defense or prosecution of an action. See, e.g., Hybrid Films v. Combest, 281 A.D.2d 500, 721 N.Y.S.2d 795 (2d Dep't 2001) (ordering in camera review of outtakes for purposes of redacting irrelevant material, provided criminal defendant first met three-part test for producing nonconfidential information); People v. Combest, 4 N.Y.3d at 349 n.4, 795 N.Y.S.2d at 486 n.4 (N.Y. 2005) (noting that while a court is not always required to review subpoenaed material in camera in order to determine in the first instance whether the requisite showing under § 79-h has been made, "it would have been the better practice to do so"); Knight-Ridder Broad., Inc. v. Greenberg, 119 A.D.2d 68, 505 N.Y.S.2d 368 (3d Dep't 1986) (ordering trial court to conduct in camera review of outtakes of interview of murder suspect); modified on other grounds, 70 N.Y.2d 151, 518 N.Y.S.2d 595 (N.Y. 1987); People v. Korkala, 121 Misc.2d 291, 467 N.Y.S.2d 517 (N.Y. Sup. Ct. N.Y. Cty. 1983) (ordering in camera inspection to determine "whether there exists any necessity for [the materials] being made available to the People in respect to any defense proffered" by a criminal defendant). But see Flynn v. NYP Holdings, Inc., 235 A.D.2d 907, 652 N.Y.S.2d 833 (3d Dep't 1997) (trial court properly denied request for in camera review where party seeking disclosure failed to overcome qualified privilege); Doe v. Cummings, 1994 WL 315640, 22 Media L. Rep. 1510 (N.Y. Sup. Ct. St. Lawrence Cty. 1994) (refusing request for in camera review and noting that Korkala was decided prior to 1990 amendment to Shield Law, which brought nonconfidential information under protection of statute).

The court might be more inclined to grant in camera review in criminal trials, especially where the case is largely based on circumstantial evidence. See People v. Bonie, 141 A.D.3d 401, 35 N.Y.S.3d 53 (N.Y. App. Div. 2016) (permitting in camera review of outtakes of interview where defendant made statements about charges against him and his relationship with the victim, reasoning that the circumstantial nature of the case made the footage critical when combined with other evidence); see also In re Daily News L.P., 31 Misc.3d 319, 920 N.Y.S.2d 865 (N.Y. Sup. Ct. Kings Cty. 2011) (granting in camera inspection of video footage to determine confidential source’s identity, finding absolute privilege overcome by criminal defendant’s right to a fair trial).

The trial judge can decide at her discretion whether to conduct an in camera inspection of any requested documents. Rowe v. Rowe, 74 N.C. App. 54, 327 S.E.2d 624, 627 (N.C. App. 1985), cert. denied 314 N.C. 331, 333 S.E.2d 489 (N.C. 1985); Midgett v. Crystal Dawn Corp., 58 N.C. App. 734, 294 S.E.2d 386 (N.C. App. 1982).

At least one Ohio court has held that before ruling on a motion to quash a subpoena, a trial court must make an in camera inspection to determine if material is protected by the shield law. State v. Geis, 2 Ohio App.3d 258, 441 N.E.2d 803 (10th Dist. 1981); see also Skorvanek v. Ohio Dept. of Rehabilitation and Correction, 10th Dist. Franklin No. 17AP-222, 2018 WL 4603135, 2018-Ohio-3870, ¶72 (“Courts should use in camera inspection to weigh claims of privilege because, “‘[b]y conducting such an inspection in chambers away from the jury and without the presence or participation of counsel for either party, the trial judge may make the necessary determination without compromising the confidentiality of any information he finds to be privileged.’ ” (citations omitted)).

The Oklahoma privilege statute does not speak to in camera review.  It may be appropriate to suggest such review in the motion to quash if relevance rather than unavailability from alternative sources is the primary issue the court will have to deal with in deciding the motion.  That is, if it is clear that the information sought is not available from alternative sources, and the success of the motion to quash depends on the court's perception of the relevance or lack of relevance of the information, in camera review may help persuade the court that the information sought is of limited or marginal relevance or does not “go to the heart” of the issue to which it might be marginally relevant.

No law or case law directs a court to conduct an in camera review of materials or interview the reporter before deciding on a motion to quash.

Neither the Pennsylvania Shield Law nor the First Amendment privilege direct, require, or suggest that the court conduct an in camera review of materials. The Third Circuit, however, has affirmed a district court’s order compelling in camera review of a reporter’s notes in a criminal trial when the defendant’s subpoena complied with the Federal Rules of Criminal Procedure and the information was not available from another source. See United States v. Cuthbertson (Cuthbertson I), 630 F.2d 139, 148 (3d Cir. 1980).

The Pennsylvania Supreme Court criticized the “refusal” of two reporters to produce subpoenaed information for in camera review in Commonwealth v. Bowden, 838 A.2d 740, 758 n.13 (Pa. 2003) (“Absent disclosure or in camera review, there was simply no way” for trial court to determine whether subpoenaed information was “crucial” to prosecution).

There are no requirements that an in camera review of materials occur prior to a court's deciding on a Motion to Quash.

There is no requirement for in camera review in the South Carolina statute.

The Tennessee Court of Appeals has held that the shield law statute does not allow for in camera review. State v. Shaffer, No. 89-208-II, 1990 WL 3347,1990 Tenn. App. LEXIS 21, 17 Med. L. Rptr. 3347 (Tenn. Ct. App. 1990). The court said that the trial judge, who had ordered in camera review of a television reporter's interview outtakes, had exceeded his authority in making such an order. Because the shield law statute provides for an evidentiary hearing on the elements of the privilege, and because it makes no mention of in camera review, the court found that in camera review was improper.

The law does not direct that an in camera review of materials or interview with the reporter be conducted prior to ruling on a motion to quash.

Once the court makes an initial determination that information which is claimed to be privileged should be disclosed, the court is required to conduct an in camera review of the subject information before making a final determination requiring disclosure. Utah R. Evid. 509(f).

Although there is no statute or rule of civil or criminal procedure requiring in camera review before ruling on a motion to compel or a motion to quash, the Vermont Supreme Court has indicated such review is necessary to a determination of whether good cause exists for ordering the subpoenaed testimony or document production. See In re B.S., 163 Vt. 445, 452, 659 A.2d 1137, 1141-42 (Vt. 1995) (“Indeed, we are uncertain how a court can make a good cause determination without first examining the records to see what they contain”).

The case law does not require the court to conduct an in camera review of materials or to interview the reporter prior to deciding a motion to quash.

In at least one unpublished decision, the Washington Court of Appeals has shown itself receptive to in camera review in connection with claims of reporter's privilege. See In the matter of the request of: Plaintiffs Alfredo Azula et al., 29 Med. L. Rptr. 1414 (Wash. App. 2001).

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

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

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

The law does not require the court to conduct an in camera review of materials or to interview the reporter before deciding a motion to quash.

The Wyoming Supreme Court has required in camera review of materials sought by a subpoena when the balancing of interests must be undertaken by the court. Hartston v. Campbell County Memorial Hospital, 913 P.2d 870 (1996). There are no reported cases involving in camera inspection of materials sought from reporters, but the general requirement of such an inspection would logically apply in such cases.