B. Elements

In the Eleventh Circuit, information may only be compelled from a reporter claiming the privilege if the party requesting the information can show: (1) that it is highly relevant, (2) necessary to the proper presentation of the case, and (3) unavailable from other sources.  United States v. Caporale, 806 F.2d 1487, 1504 (11^th Cir. 1986).

The First Circuit courts apply a balancing test that examines specific factors. In deciding a reporter’s privilege claim, the court will balance the potential harm to the free flow of information against the asserted need for the requested information. Bruno & Stillman v. Globe Newspaper Co., 633 F.2d 583, 595 (1st Cir. 1980). As to subpoenas in civil matters, the court essentially applies Fed. R. Civ. P. 26 with a heightened sensitivity to any First Amendment impact that might result from the compelled disclosure of sources. Id. at 596. See also Green v. Cosby, 152 F. Supp. 3d 31, 34 (D. Mass 2015).  Under Rule 26, a party may obtain discovery of any matter, not privileged, that is relevant to a party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues and whether the burden or expense of the proposed discovery outweighs its benefit. Id. at 36-38.  On the other hand, a court may for good cause issue any order which justice requires in response to a discovery request to protect a party from annoyance, embarrassment, oppression, or undue burden or expense. 633 F.2d at 597.  These protective orders may include limiting the scope of discovery, limiting the persons who have access to certain discovery matters, or sealing from public disclosure any information obtained during discovery.  Id. at 595; see also Drumgold v. City of Boston, 1:04-cv-11193, ECF No. 92 at 36-37 (D. Mass. 2007).

In criminal cases, once a reporter asserts the privilege, the moving party must meet certain elements for the court to require the media to divulge the information. United States v. The LaRouche Campaign, 841 F.2d 1176, 1179 (1st Cir. 1988).  The moving party must demonstrate that: (1) the information is evidentiary and relevant; (2) the information is not otherwise procurable reasonably in advance of trial by the exercise of due diligence; (3) the moving party cannot properly prepare for trial without this information being produced prior to trial, and the failure to obtain this information may unreasonably delay the trial; and (4) the application is made in good faith and not intended as a general “fishing expedition.” Id. (quoting United States v. Nixon, 418 U.S. 683, 699-700 (1974)). The courts have reduced this test to the following three hurdles: (1) relevancy; (2) admissibility; and (3) specificity. Nixon, 418 U.S. at 700.  Fed. R. Crim. P. 17(c) provides that a court may quash or modify a subpoena if compliance would be unreasonable or oppressive.

If the moving party demonstrates that it can meet these elements with “sufficient likelihood,” the court then assesses the potential harm to the reporter’s First Amendment interests, including: the threat of administrative and judicial intrusion into the newsgathering process; the threat of turning journalists into “an investigative arm of the judicial system;” the disincentive for the media to compile and preserve investigative material; and the burden on reporters’ time and resources in responding to subpoenas. The court balances these harms against the subpoena-issuing party’s interest in the privileged information. In criminal cases, this includes the defendant’s constitutional rights to a fair trial under the Fifth and Sixth Amendments. United States v. LaRouche, 841 F.2d 1176, 1182 (1st. Cir. 1988).  Finally, if the court has any concerns about ordering the public release of the information, it conducts an in camera review to aid in its determination prior to compelling disclosure. Id. at 1183.

Because the reporter's privilege is qualified in the Third Circuit, courts employ a balancing test on a case-by-case basis to determine if the information should be disclosed. Riley, 612 F.2d at 715-16. To overcome the privilege, the party seeking the information must make a strong showing that the information is material, relevant, and necessary. Id. at 716. In United States v. Criden, 633 F.2d at 358-59, the Third Circuit distilled the Riley test into a more formal, three-part test. This three-part test requires that a party seeking information from a reporter must: (1) "demonstrate that he has made an effort to obtain the information from other sources;" (2) "demonstrate that the only access to the information sought is through the journalist and her sources;" and (3) "persuade the court that the information sought is crucial to the claim." Id. at 358-59.

The elements that must be met in the Fifth Circuit to overcome a reporter's privilege were derived from the Second Circuit's test in Garland v. Torre, 259 F.2d 545 (2d Cir. 1958). The Garland test, adopted by the court in Miller, asks: "1) is the information relevant; 2) can the information be obtained by alternative means, and 3) is there a compelling interest in the information?" Miller v. Transamerican Press, Inc., 621 F.2d 721, 726, as modified, 628 F.2d 932 (5th Cir. 1980). The privilege may only be overcome if the party serving the subpoena shows "i) substantial evidence that the challenged statement was published and is both factually untrue and defamatory; ii) reasonable efforts to discover the information from alternative sources have been made; iii) no other reasonable source is available; and iv) knowledge of the identity of the informant is necessary to proper preparation and presentation of the case." Miller v. Transamerican Press, Inc., 628 F.2d 932 (5th Cir. 1980). Because the reporter's privilege does not apply when non-confidential information is sought in grand jury proceedings or criminal cases, no special balancing is required for subpoenas seeking such information in those instances. United States v. Smith, 135 F.3d 963, 970-71 (1998). Absent the application of the privilege, the government need merely identify the information it seeks with sufficient specificity and show that it is relevant and admissible. Id. at 972.

At least where the subpoena occurs in a civil setting, the subpoenaing party would have to establish all of the following: (1) that the requested information is centrally relevant to an important legal issue in the underlying litigation, and (2) that the subpoenaing party has exhausted all other means of obtaining the information. Also, the court must consider the potential harm that may be caused to a source or to the First Amendment interest in news gathering generally if the court requires compliance with the subpoena. Southwell v. Southern Poverty Law Ctr, 949 F. Supp. 1303 (W.D. Mich. 1996).

In the context of commercial speech, where a newspaper sought to avoid disclosure of the identity of an advertiser who placed a "blind" ad, the Sixth Circuit ruled that a federal agency's failure to exhaust other means of investigation before subpoenaing the newspaper defeated the agency's attempt to overcome the newspaper's invocation of First Amendment protection from the subpoena. NLRB v. Midland Daily News, 151 F.3d 472 (6th Cir. 1998).

In the context of a grand jury subpoenaing video outtakes that likely would identify a murder suspect, the Sixth Circuit emphasized in nonbinding dictum that no First Amendment protection from the subpoena exists. However, the court listed the elements other courts have prescribed for overcoming the First Amendment, and ruled that the evidence showed that the government had satisfied those elements. The elements listed by the Sixth Circuit were "a clear and convincing showing that [the journalist] has information that is clearly relevant to a specific violation of criminal law, that the information is not available from alternative sources, and that the state has a compelling and overriding interest in obtaining the information." In re Grand Jury Proceedings, 810 F.2d 580 (6th Cir. 1987).

More recently, Sixth Circuit district courts have applied a four part test derived from In re Grand Jury Proceedings. Where 1) the reporter is not being harassed, 2) the information is being sought in good faith, 3) the information has more than a remote or tenuous relationship with the case, and 4) there is a legitimate need for disclosure, the reporter can't block compelled disclosure of information. Lentz v. City of Cleveland, 410 F. Supp. 2d 673 (N.D. Ohio 2006); Hade v. City of Fremont, 233 F. Supp. 2d 884 (N.D. Ohio 2002).

A Sixth Circuit district court found that the reporters did not have to disclose information from, or names of, confidential sources because the information sought could be obtained from other sources, the request was overly broad and burdensome, and the information may duplicate sinformation gathered from other sources. In re Daimler Chrysler, 216 F.R.D. 395 (E.D. Mich. 2003).

The Eighth Circuit has not ruled on the test, but the district courts in Fridell, Continental Cablevision, Nelle, and Richardson adopted versions of the common three-part balancing test: the reporter's privilege is defeated only where the information sought is: 1) critical to the maintenance or the heart of the claim; 2) highly material and relevant; and 3) is unobtainable from other sources.

A party trying to overcome the reporter’s privilege must show that the material is: (1) unavailable despite exhaustion of all reasonable sources; (2) non-cumulative; and (3) clearly relevant to an important issue in the case. See Shoen v. Shoen, 48 F.3d 412, 416 (9th Cir. 1995) (Shoen II). See also F. Marc Schaffel Prods., LLC v. TMZ Prods., Inc., No. CV-10-01306-GHK, 2010 WL 11549388, at *4 (C.D. Cal. Dec. 16, 2010) (citing Shoen II) (“To overcome a valid assertion of the qualified journalist’s privilege, a party must satisfy all three [requirements].”).

The privilege provided by Alabama’s shield statute, Ala. Code § 12-21-142, appears to be absolute.

With respect to the qualified First Amendment privilege, once a reporter demonstrates that the subpoenaed information was procured while engaged in a newsgathering activity, the subpoenaing party must demonstrate the following: 1) The reporter has information highly relevant to a claim or defense; 2) There is a compelling need for the disclosure sufficient to override the qualified First Amendment privilege; and 3) The party seeking the information has unsuccessfully attempted to obtain it 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).

The elements discussed below are relevant only in two situations, because the reporter’s privilege is otherwise absolute. In criminal proceedings, the reporter may be required to disclose unpublished information in response to a defense subpoena. See Delaney v. Superior Court, 50 Cal. 3d 785, 805-06, 789 P.2d 934, 268 Cal. Rptr. 753 (1990). The prosecution has no right to compel a reporter’s testimony. See Miller v. Superior Court, 21 Cal. 4th 883, 887, 986 P.2d 170, 89 Cal. Rptr. 2d 834 (1999). In civil proceedings in which the reporter is a party to the action, he or she may be required to disclose unpublished information. See Mitchell v. Superior Court, 37 Cal. 3d 268, 279, 690 P.2d 625, 208 Cal. Rptr. 152 (1984). If the reporter is not a party, the privilege is absolute. See New York Times Co. v. Superior Court, 51 Cal. 3d 453, 456, 796 P.2d 811, 273 Cal. Rptr. 98 (1990). The elements to compel disclosure differ, depending on the type of case, as discussed below.

The D.C. Circuit applies a two-prong test to determine whether the privilege is overcome: (1) the party seeking the information has exhausted all reasonable, alternative means of identifying the source; and (2) the information goes to the heart of that party’s case.  Lee v. Dep’t of Justice, 413 F.3d 53 (D.C. Cir. 2005); Goldberg v. Amgen, Inc., 123 F. Supp. 3d 9 (D.D.C. 2015); Estate Klieman v. Palestinian Auth., 293 F.R.D. 235 (D.D.C. 2013); Peck v. City of Boston (In re Slack), 768 F. Supp. 2d 189 (D.D.C. 2011); Saperstein v. Palestinian Auth. (In re Goldberg), 693 F. Supp. 2d 81 (D.D.C. 2010); Hatfill v. Gonzales, 505 F. Supp. 2d 33 (D.D.C. 2007); CFTC v. McGraw-Hill Cos., Inc., 507 F. Supp. 2d 45 (D.D.C. 2007); Mgmt. Info. Techs., Inc. v. Alyeska Pipeline Serv. Co., 151 F.R.D. 471 (D.D.C. 1993); Palandjian v. Pahlavi, 103 F.R.D. 410 (D.D.C. 1984).

Some case law indicates that the court should apply a third factor, balancing the public’s interest in protecting the newsgathering process against the private interest in disclosure.  This third factor, however, remains a topic of active judicial debate in this Circuit.  Compare Lee v. Dep’t of Justice, 428 F.3d 299 (D.C. Cir. 2005) (Tatel & Garland, JJ., dissenting from denial of rehearing en banc) (arguing that courts should weigh the requesting party’s “private interest” in the lawsuit against “the public’s interest in protecting journalists’ ability to report without reservation on sensitive issues”), and Grunseth v. Marriott Corp., 868 F. Supp. 333, 335-36 (D.D.C. 1994) (“Plaintiff has demonstrated no overwhelming or compelling societal interest in overcoming the presumption of favoring First Amendment protections for a reporter’s sources”), with Lee v. Dep’t of Justice, 401 F. Supp. 2d 123 (D.D.C. 2005) (characterizing the proposed public/private interest balancing test as “inherently unworkable”), and Hatfill v. Gonzales, 505 F. Supp. 2d 33 (D.D.C. 2007) (“without controlling precedent from the Circuit that the public interest balancing element is a necessary protection for reporters, the Court must decline to employ it”).

If the information sought is news or information otherwise protected from disclosure under § 16-4702(2), i.e., information that has not been published, then a movant must establish the following by clear and convincing evidence in order to overcome the privilege:

(1) the news or information is relevant to a significant legal issue before a judicial, legislative, administrative, or other body that has the power to issue the subpoena;

(2) the news or information could not, with due diligence, be obtained by any alternative means; and

(3) there is an overriding public interest in the disclosure.

D.C. Code § 16-4703; Prentice v. McPhilemy, 27 Med. L. Rptr. 2377, 2381 (D.C. Super. Ct. 1999); see also Gray v. Hoffman-LaRoche, Inc., 2002 WL 1801613, 30 Med. L. Rptr. 2376 (D.D.C. Mar. 27, 2002) (applying D.C. law and granting newspaper reporter’s motion to quash trial deposition subpoena where plaintiff failed to show, by clear and convincing evidence, that: (1) the information sought “goes to the heart of the matter of the pending litigation; (2) the plaintiff has exhausted alternative means for obtaining the information; and (3) the disclosure of the information is in the public interest”);

To overcome the privilege, the subpoenaing party must make a clear and specific showing that:

(a) the information is relevant and material to unresolved issues in the case;

(b) the information cannot be obtained from alternative sources; and

(c) a compelling interest exists in favor of disclosure.

§ 90.5015(2), Fla. Stat. (2023) (emphasis added); State v. Davis, 720 So. 2d 220 (Fla. 1998). It is important to recognize that if the subpoenaing party fails to make a clear and specific showing as to any of the three prongs of the test, the journalist’s privilege will not be overcome.

A subpoenaing party seeking to compel testimony or documents from a member of the news media who has invoked the privilege must show that the information sought (1) is material and relevant; (2) cannot be reasonably obtained by alternative means; and (3) is necessary to the proper preparation or presentation of the case of a party seeking the information, document, or item. O.C.G.A. § 24-5-508.

The elements of the reporter's privilege in Idaho are entirely those that are described in the appellate decisions discussed in this outline. Although there is no specific enumeration of the elements in any of the cases, they include at a minimum:

1.Proof that the reporter was engaged in newsgathering activities in connection with the information sought by the party seeking his or her testimony;

2.Proof the information sought is of such a nature as to justify consideration of the reporter's privilege. In other words, because the Idaho cases have seemed to focus upon the fact of confidential sources or information as a necessary predicate for the invocation of the reporter's privilege, if those facts exist, they should be emphasized. If not, the reporter needs to demonstrate, presumably drawing upon the holding in the Wright case, that the privilege is still available.

3.Proof (or failure of proof, depending upon where the court assigns the burden) that the qualified privilege is not overcome by competing interests.

A reporter may be deprived of the statutory privilege once the party seeking disclosure meets the requirements set forth in Section 8-904. People v. Pawlaczyk, 189 Ill.2d 177, 188, 724 N.E.2d 901, 908 (2000). The party seeking disclosure must identify the specific information’s “relevancy to the proceedings” by alleging: 1) that a specific public interest would be adversely affected if the information sought was not disclosed; 2) that the information sought does not concern matters or details required to be kept secret under the laws of this State or the Federal Government; 3) that all other available sources of information have been exhausted; and 4) that disclosure of the information sought is essential to the protection of the public interest involved. 735 ILCS 5/8-904, 8-907; Pawlaczyk, 189 Ill.2d at 188, 724 N.E.2d at 908.

In libel or slander cases, the plaintiff seeking access to potentially privileged information must prove the prima facie case, showing falsity of the alleged defamation and actual harm or injury due to the alleged defamation. In addition, the plaintiff must show that that the need for disclosure outweighs the public interest in protecting the confidentiality of sources of information and the overall freedom of the press. 735 ILCS 5/8-904, 8-907.

The Statute states that a court, when granting or denying disclosure, shall consider the nature of the proceedings, the merits of the claims or defense, the adequacy of the remedy otherwise available, the relevancy of the source, and the possibility of establishing by other means that which it is alleged the source requested will tend to prove. 735 ILCS 5/8-906; Pawlaczyk, 189 Ill.2d at 188, 724 N.E.2d at 908.

To make use of the shield law statute which protects reporters from revealing their sources, a reporter must show that he or she is a person covered under Indiana Code § 34-46-4-1 and that the identity of a news source is being sought. See id. § 34-46-4-2. To be considered a “source,” “one must provide information that is then interpreted by the news organization.” In re Indiana Newspapers, 963 N.E.2d 534, 548 (Ind. Ct. App. 2012). Therefore, an anonymous commenter who left a defamatory comment was not a “source” under the shield law, and so the shield law did not apply. Id. at 547–48.

As for other video or documents, such as interviews of persons relevant to a civil case, the elements that must be shown to overcome the First Amendment reporter's privilege recognized in In re Stearns (Vollmer v. Zulka), 489 N.E.2d 146, 151 (Ind. App. 1986), are: (1) the materials sought are material and relevant to the action, (2) they are critical to a fair determination of the cause, and (3) the subpoenaing party has exhausted all other sources for the same information. Id. However, it is unclear whether this constitutional privilege is still valid in Indiana. See In re WTHR-TV (State v. Cline), 693 N.E.2d 1 (Ind. 1998).

Regarding the discovery of records by a criminal defendant, a three-step test may apply: (1) the requests are particular; (2) the requests are material and relevant; and (3) if the first two requirements are met, the trial court must grant the request unless there is a “paramount interest” in nondisclosure. In re Crisis Connection, Inc., 949 N.E.2d 789, 794 (Ind. 2011).  The Indiana Supreme Court held that this three-step test only applies to the discovery of nonprivileged information. Id.

The elements necessary to subordinate the reporter's privilege for an in camera review by the court, are: (1) there is a probability or likelihood that the evidence is necessary and (2) it cannot be secured from any less obtrusive source. Lamberto, 326 N.W.2d at 309. Before disclosure can be made to the requesting party, the court must conclude, based on its in camera review, that the information is necessary, relevant and likely admissible. Id.; see also Nelle, 2017 WL 7049237, at * 2–3.

For a reporter to establish a privilege under the KRS 421.100, he or she must demonstrate that the information containing the source: (1) is sought for disclosure (2) at a legal proceeding or trial before any court, grand or petit jury, tribunal, the General Assembly or any committee thereof, any city or county legislative body or any committee thereof, or elsewhere (3) was procured by him or her and (4) has been published in a newspaper or by a radio or television station by which he or she is employed or engaged or with which he or she is connected in some way.

The party seeking an order to override the privilege protecting disclosure of sources shall set forth in writing the reason why the disclosure is essential to the protection of the public interest. La. R.S. 45:1453. The court will grant the order only when the court finds that the disclosure "is essential to the public interest." Id. To compel the disclosure of unpublished information generally, the party that has issued the subpoena must demonstrate that the information "(a) is highly material and relevant; (b) is critical or necessary to the maintenance of a party's claim, defense, or proof of an issue material thereto; and (c) is not obtainable from any alternative source." La. R.S. 45:1459(B)(1).

With regard to confidential sources and information, the party seeking the source or information must, in all matters, whether criminal or civil, establish that:

1. The identity of the source or the information is material and relevant;
2. The identity of the source or the information is critical or necessary to the maintenance of a party's claim, defense or proof of an issue material to the claim or defense;
3. The identity of the source or the information is not obtainable from any alternative source or cannot be obtained by alternative means or remedies less destructive of First Amendment rights; and
4. There is an overriding public interest in the disclosure.

16 M.R.S.A. §§ 61(2)(A)(1)–(4).

In addition, based on information obtained from a source other than the journalist, the party seeking the source or information must establish:

1. In a criminal investigation or prosecution, that there are reasonable grounds to believe that a crime has occurred; or
2. In a civil action or proceeding, that there is a prima facie cause of action.

16 M.R.S.A. §§ 61(2)(B)(1)–(2).

With regard to non-confidential sources and information, the Maine Supreme Court has applied a balancing test, on a case-by-case basis, weighing any possible injury to the free flow of information against the recognized obligation of all citizens to give relevant evidence regarding criminal conduct. See In re Letellier, 578 A.2d 722, 17 Media L. Rep. 2169 (Me. 1990).

The In re Letellier Court considered the following facts:

First, the Court found that the subpoena would "not interfere in any significant way with . . . news operations." Id. at 728. At most, the Court found, testimony might be required to authenticate the videotape.

Second, the information was sought for presentation to a grand jury, which the Court termed "a unique body guaranteed by both the United States and Maine Constitutions to play an historically vital role in our criminal justice system.” Id. at 728-29.

Third, the Court found that the information sought was a "unique bit of evidence frozen at a particular place and time containing information unobtainable from any other source" and that "[t]he videotape presents an invaluable and irreplaceable opportunity for the grand jury to observe the defendant's demeanor and to hear an unedited version of his story in his own words with any subtle nuance that it may reveal." Id. at 729 (internal quotations omitted).

Fourth, the Court noted that the grand jury investigation involved alleged corruption of the law enforcement process by a police commissioner, a matter of "grave public concern striking at the heart of public confidence and trust in government.” Id. at 729. These circumstances rendered the public interest in disclosure "particularly pressing." Id.

Given its careful weighing of the particular facts before it, the Court cautioned that "[t]he importance of the constitutional protections of a free press . . . lead us to state . . . that our decision is limited to the particular fact circumstances of this case." Id. at 730.

The Maine Superior Court recently applied the In re Letellier test in Sanborn v. State, slip op., Docket No. CUMCD-CR-2017-00531 (Unified Criminal Docket, Cumberland, May 22, 2017), a post-conviction review proceeding in which the petitioner requested broadcast video and audio as well as non-confidential outtakes of an interview with a former prosecutor concerning the conviction that was the subject of review.  The court engaged in the balancing analysis mandated by In re Letellier and, after in camera review, ordered disclosure.  The Court reasoned that balancing and in camera review was required despite the fact that the materials involved “specific, non-confidential un-broadcast material that provides a unique opportunity to observe the demeanor, tone, and manner of a key witness.  Furthermore, the material sought is anticipated to help petitioner prepare for trial and provide impeachment material.”  Id. (slip op. at *9).

Specifically, the court found: (A) disclosure would be of “significant utility” to petitioner; (B) disclosure would provide an “invaluable and irreplaceable opportunity” to view the demeanor of the witness; (C) the nature of the materials was relevant to a matter of “grave public concern striking at the heart of public confidence and trust in the power of the State[;]” and (D) the materials concern a “major witness” in the case and the material sought would “likely” offer a basis for impeachment.  The court conditioned disclosure, however, on production only to the attorneys for the parties, barred them from further distributing the materials, and ordered that they may be used solely for purpose of the upcoming hearing.

The party seeking protected news or information must show by clear and convincing evidence that:

(i) The news or information is relevant to a significant legal issue before any judicial, legislative, or administrative body, or anybody that has the power to issue subpoenas;

(ii) The news or information could not, with due diligence, be obtained by any alternate means; and

(iii) There is an overriding public interest in disclosure.

Md. Cts. & Jud. Proc. Code Ann. § 9-112 (d)(1)(i)-(iii) (emphasis added).

Missouri courts have recognized a four-part test cited in Classic III, when weighing the privilege with respect to defamation cases. 954 S.W.2d at 657. The elements include:  1) whether the movant has exhausted alternative sources of the information; 2) the importance of protecting confidentiality in the circumstances of the case; 3) whether the information sought is crucial to plaintiff’s case; and 4) whether plaintiff has made a prima facie case of defamation.  These facts are then balanced in determining whether to apply the privilege to the particular information or identity sought.

The elements that must be shown are those described in the statute.

A request for protection under news shield statute may be raised by a reporter’s attorney in a motion to quash a subpoena, without the need to file a supporting affidavit, as long as the motion demonstrates that the information sought by the subpoena is facially protected by the news shield statute.  Aspen Fin. Services, Inc. v. Eighth Judicial Dist. Court, 129 Nev. 878, 313 P.3d 875, 879 (2013), overruling Las Vegas Sun, Inc. v. Eighth Judicial Dist. Court, 104 Nev. 508, 761 P.2d 849 (1988).  A mere recitation of the statute alone remains insufficient to claim the privilege.  Las Vegas Sun v. Schwartz, 104 Nev. 508, 514, 761 P.2d 849, 854 (1988), overruled on other grounds, Diaz v. Eighth Judicial District Court, 116 Nev. 88, 993 P.2d 50 (2000). Any objection to a subpoena, motion to quash or other motion should be accompanied by information sufficient to establish the information sought by the subpoena is facially protected.  Aspen Fin. Servs., Inc., 129 Nev. 878, 313 P.3d at 879.

To overcome the reporter’s privilege in judicial proceedings, the subpoenaing party must show that:

"(1) a reasonable probability exists that a news media person has confidential information or sources that are material and relevant to the action;

(2) the party seeking disclosure has reasonably exhausted alternative means of discovering the confidential information or sources sought to be disclosed;

(3) the confidential information or source is crucial to the case of the party seeking disclosure; and

(4) the need of the party seeking the confidential source or information is of such importance that it clearly outweighs the public interest in protecting the news media’s confidential information and sources."

Rule 11-514(C) NMRA. To overcome the statutory privilege applicable to nonjudicial proceedings, the subpoenaing party must show that disclosure is “essential to prevent injustice.” NMSA 1978, § 38-6-7(A), (C) (1973).

As discussed above, the Shield Law provides an absolute privilege for confidential material. See Section on “Criminal” cases above. Therefore, the elements below are relevant only when the subpoena seeks nonconfidential information. To overcome the qualified privilege, the party seeking disclosure must make "a clear and specific showing that the news: (i) is highly material and relevant; (ii) is critical or necessary to the maintenance of a party's claim, defense or proof of an issue material thereto; and (iii) is not obtainable from any alternative source." Civ. Rights § 79-h(c).

A federal court sitting in diversity will apply the New York Shield Law. United Auto Grp. v. Ewing, 34 Med. L. Rptr. 1801 (S.D.N.Y. 2006); Don King Prods. Inc. v. Douglas, 131 F.R.D. 421, 422 (1990). However, when federal law is applied in federal criminal cases or in civil cases where jurisdiction in federal court arises under federal law, the federal privilege will be overcome for nonconfidential materials on a showing that the materials are of "likely relevance to a significant issue in the case," and are "not reasonably obtainable from other available sources." Gonzales v. NBC, 194 F.3d 29, 36 (2d Cir. 1999) (applying federal law). When the material is confidential, the three-part test of Burke (identical to the Shield Law's provision for nonconfidential information) applies. See also N.Y. Times Co. v. Gonzales, 459 F.3d 160 (2d Cir. 2006) (federal common law privilege overcome where there was a compelling interest in favor of disclosure of newspaper’s telephone records).

To overcome the privilege, the party seeking the information must prove that the material sought (1) is relevant and material, (2) cannot be obtained from alternate sources, and (3) is essential to the maintenance of a claim or defense. N.C. Gen. Stat. § 8-53.11(c); see also State v. Rogers, 9 Media L. Rep. 1254, 1255 (N.C. Superior Ct. 1983). If the party does not establish each of the elements of the test, then the subpoena must be quashed. N.C. Gen. Stat. § 8-53.11(c). See State v. Smith, 13 Media L. Rep. 1942 (N.C. Superior Ct. 1987); Fulmore v. Bledsoe, 221 N.C. App. 434, 727 S.E.2d 25 (N.C. App. Ct. 2012) (affirming the trial court’s denial of plaintiffs’ motion to compel discovery because plaintiffs failed to meet burden under N.C. Gen. Stat. § 8-53.11 and defendants were protected by the journalist’s privilege).

The plain language of the North Dakota statute does not require that any particular test be met. However, the dicta in the leading case on the subject indicates that the court should consider a conglomerate of different factors in order to determine whether nondisclosure is appropriate. The threshold is met when nondisclosure would result in a miscarriage of justice.

In order to overcome a privilege, a party must show that the information was relevant, could not be obtained from alternative sources, and furthered a compelling need. State v. Daniel, 11th Dist. Trumbull No. 89-T-4214, 1990 WL 237188 (Dec. 31, 1990).

Before a defendant in a criminal proceeding is entitled to either a newsperson's confidential information or confidential source, the defendant must first demonstrate to the court that either the newsperson or the confidential source has relevant evidence regarding the defendant's guilt or innocence. The defendant must show that he has exhausted all available means of obtaining the confidential information requested of the newsperson. Further, the defendant must make an effort to examine the newsperson concerning his non-confidential information and must request an in camera inspection by the court of the newsperson's confidential information. If, after these steps are taken, there is direct evidence and reasonable inferences flowing therefrom that there is a reasonable probability that the newsperson or the confidential source will provide relevant evidence of the defendant's guilt or innocence, the defendant is entitled to either the newsperson's confidential information or the name of his confidential source. In re McAuley, 63 Ohio App.2d 5, 408 N.E.2d 97 (8th Dist. 1979)

As interpreted in Taylor v. Miskovsky, the privilege statute contains three elements: (1) the information sought must be relevant, (2) it must go to the heart of the claim or defense of the party seeking the information, and (3) alternative means to obtain the information must have been exhausted.

Since the Pennsylvania Shield Law provides an absolute privilege against compelled disclosure of confidential source information, the sole issue is whether the subpoenaed information could reasonably lead to the disclosure of the identity of a confidential source. See Commonwealth v. Bowden, 838 A.2d 740, 755 (Pa. 2003).

With respect to the First Amendment privilege, the Pennsylvania Supreme Court has described the elements necessary for a party to overcome the privilege as follows:

First, the party “must demonstrate that [it] has made an effort to obtain the information from other sources.” United States v. Criden, 633 F.2d 346, 358-359 (3d Cir. 1980); see United States v. Cuthbertson (Cuthbertson II), 651 F.2d 189, 195-96 (3d Cir. 1981) (same); Riley v. City of Chester, 612 F.2d 708, 717 (3d Cir. 1979) (same).

Second, the party “must demonstrate that the only access to the information sought is through the journalist and [his or] her sources.” Criden, 633 F.2d at 359; see Riley, 612 F.2d at 716 (stating that a showing is required as to the lack of alternative sources); Davis v. Glanton, 705 A.2d 879, 885 (Pa. Super. 1997) (same); McMenamin v. Tartaglione, 590 A.2d 802, 811 (Pa. Commw. 1991), aff’d without op., 590 A.2d 753 (Pa. 1991) (same).

Third and finally, the party “must persuade the court that the information sought is crucial to [its] claim.” Criden, 633 F.2d at 359; see Cuthbertson II, 651 F.2d at 196 (same); see also Riley, 612 F.2d at 716 (“the materiality, relevance and necessity of the information sought must be shown”), 717 (information must be crucial information necessary for the development of the case; material sought must ‘provide a source of crucial information going to the heart of the [claim]’ (citation omitted; alteration in original)); Glanton, 705 A.2d at 885 (stating that party must demonstrate that information is crucial to its case); McMenamin, 590 A.2d at 811 (same).

Bowden, 838 A.2d at 755.

In Bowden, the Pennsylvania Supreme Court also identified “several factors that the courts should consider” when applying the privilege to a particular case: (1) “whether a reporter’s source is confidential, because the lack of a confidential source is a factor that favors production,” id. at 754 (citing United States v. Cuthbertson (Cuthbertson I), 630 F.2d 139, 147 (3d Cir. 1980), and Criden, 633 F.2d at 357-58); (2) whether the privilege is raised in a civil or criminal case, “as in criminal cases the public need to vindicate crime, or the defendant’s constitutional right to a fair trial, can take precedence over a reporter’s need to maintain confidentiality,” id.; and (3) whether the media is being subpoenaed as a party or non-party witness, as “it should be more difficult to compel production from a non-party witness who has no personal interest in the matter,” id. at 754-55 (citing Riley, 612 F.2d at 716).

Finally, the court has explained that these “principles and policy considerations . . . must inform the application of the three-part test and, in fact, may warrant relaxation of the test in certain circumstances.” Id. at 755 (quoting Criden, 633 F.2d at 358); see, e.g., McMenamin, 590 A.2d at 811.

The legislature has enacted a three-pronged test in Tenn. Code Ann § 24-1-208(c) that must be satisfied before a court will compel a reporter to reveal information protected by the privilege. See State ex rel. Gerbitz v. Curriden, No. 586, 1986 WL 15576, 1986 Tenn. App. LEXIS 3546 (Tenn. Ct. App. Nov. 14, 1986). In order to enforce a subpoena directed to a journalist, the subpoenaing party must show that: (A) there is probable cause to believe that the person from whom the information is sought has information that is clearly relevant to a specific probable violation of law; (B) the information sought cannot reasonably be obtained by alternative means; and (C) there is a compelling and overriding public interest of the people of the state of Tennessee in the information. Tenn. Code Ann. § 24-1-208(c).

For subpoenas seeking non-confidential information from journalists, the Vermont Shield Law requires the party seeking the information to satisfy a three-part statutory test to overcome the privilege.  12 V.S.A. § 1615(b)(2).  The three elements are: (1) the news or information is highly material or relevant to a significant legal issue before the court or other body; (2) the news or information could not, with due diligence, be obtained by alternative means; and (3) there is a compelling need for disclosure.  Id.