b. What proof of search does a subpoenaing party need to make?

There is no case law addressing this issue.

The First Circuit does not specifically require the moving party to demonstrate that it has taken measures to obtain the information by alternative methods. The court will consider whether the party can demonstrate this as it makes its overall determination of the subpoenaing party’s need for the information. However, as a general rule, where the courts find that alternative sources for the information exist and can be pursued without undue hardship, they will require the subpoenaing party to pursue those avenues first.

When the First Circuit applies New Hampshire’s reporter’s privilege, it is the moving party’s burden to demonstrate that it has made “all reasonable efforts” to obtain the information by alternative methods.

The Second Circuit has explained that disclosure may not be ordered when the party seeking information "fail[s] to carry their burden of first seeking the information elsewhere." In re Petroleum Products Antitrust Litig., 680 F.2d 5, 8 (2d Cir. 1982), cert. denied, Arizona v. McGraw-Hill, Inc., 459 U.S. 909 (1982).

While courts in the Third Circuit do not appear to have focused particular attention on the question of what proof of a search for alternative sources the party seeking disclosure from a reporter must make, in Riley, the Court of Appeals explained that "conclusory statements fall far short of the type of specific findings of necessity which may overcome the privilege." 612 F.2d at 717.

The subpoenaing party should be required to “demonstrate to the court unsuccessful, independent attempts to gain the requested information” from any known public sources or those who the facts indicate might have the information sought. LaRouche, 780 F.2d at 1139. A party challenging a subpoena will have a strong argument that the seeking party has not sought all reasonable alternatives if it has not exhausted its non-party depositions. Id.

Prior to subpoenaing a member of the news media, a party should pursue any potential alternative sources for obtaining the information sought from the media. Lenhart v. Thomas, 944 F. Supp. 525, 530 (S.D. Tex. 1996). Substantial evidence is required in order to prove that reasonable efforts have been made to obtain the subpoenaed information from an alternative source and no other reasonable source is available. Miller v. Transamerican Press, Inc., 628 F.2d 932 (5th Cir. 1980).

The federal courts in the Sixth Circuit have not stated what the subpoenaing party must do to demonstrate that it has already conducted an unsuccessful search for the subpoenaed information before subpoenaing the press.

There is no statutory or case law addressing this issue.

The district court in Fridell held that more than a "plain assertion" is required. J.J.C. v. Friell, 165 F.R.D. 513, 516 (D. Minn. 1995).

But the district court in Grand Jury Subpoena ABC held that the mere assertion of a "reasonable possibility" that unaired portions of a television interview may contain relevant evidence, and that this videotape and transcript were the only evidence of that interview, would have been enough to overcome the (hypothetical) privilege. In re Grand Jury Subpoena American Broadcasting Companies, Inc., 947 F.Supp. 1314, 1321 (E.D. Ark. 1996).

Before disclosure is sought, the subpoenaing party must demonstrate that he or she has exhausted all reasonable alternative means for obtaining the information. See Shoen I, 5 F.3d at 1296. Compelled disclosure from a journalist must be a “last resort after pursuit of other opportunities has failed.” Shoen I, 5 F.3d at 1297 (quoting Carey v. Hume, 492 F.2d 631 (D.C. Cir. 1974)); see also, e.g., Harbert v. Priebe, 466 F. Supp. 2d 1214, 1216 (N.D. Cal. 2006) (rejecting motion to compel compliance with subpoena where subpoenaing party relied “only on the purported inadequacy” of interrogatory responses related to the discovery sought and did not show that “they ha[d] made other efforts to obtain [the] information”).

There is no Alabama statutory or reported case law addressing the manner in which the subpoenaing party must demonstrate that it has conducted a search for alternative sources.

Alaska appellate courts have not had occasion to squarely address the existence or scope of a reporter's privilege. In a number of trial court proceedings, the qualified constitutional privilege has been recognized and applied to quash a subpoena, implicitly accepting arguments that the subpoenaing party failed to demonstrate that it had sufficiently searched for the material outside of subpoenaing the reporter.

A.R.S. § 12-2214 does not require the presentation to the court for review of every source investigated. Bartlett, 150 Ariz. at 183, 722 P.2d at 351. For example, in Bartlett, the Court of Appeals explained that the party seeking enforcement of a subpoena served on a television station for production of a videotaped recording was not required to submit for court inspection every deposition obtained from other sources. Id. Under A.R.S. § 12-2214, the court determined that it was sufficient for counsel to avow that the witnesses had actually been deposed and the videotapes reviewed and that neither offered the same information contained on the videotape at issue. Id. If the television station, the party being served, was unconvinced by that avowal, it had the burden to review the depositions and videotapes for purposes of controverting the allegations set forth in the supporting subpoena. Id. In Reinstein, the Court of Appeals found that the requesting party had failed to exhaust other sources by failing to seek an independent interview with the source of the alleged statements.  240 Ariz. at 447, 381 P.3d at 241.

There is no precedent stating what evidence a party must show to prove a "reasonable effort" to determine a source's identity prior to issuing a subpoena to a reporter.

In criminal cases, a defendant may be allowed to compel disclosure of the information without establishing exhaustion of all alternative sources. See Delaney v. Superior Court, 50 Cal. 3d 785, 811-12, 789 P.2d 934, 268 Cal. Rptr. 753 (1990).

However, in civil cases, the party seeking the information generally will have to provide proof that they exhausted all alternative sources for the information before discovery from the reporter will be allowed. See Mitchell v. Superior Court, 37 Cal. 3d 268, 282, 690 P.2d 625, 208 Cal. Rptr. 152 (1984).

The party seeking the information must prove that he or she has already sought the information from other reasonably available sources. For example, in Henderson, the court granted the motion to quash because the plaintiff had not sought the information from other reasonable sources. 879 P. 2d at 393. The plaintiff was seeking information regarding the altitude at which a helicopter had been flying when it passed over a private home. Id. Plaintiff, however, had not sought the information from public aviation authorities. Id. In addition, the information had been provided by the defendants. Id.

There is no Connecticut case law on this topic.

The subpoenaing party must demonstrate that it already has conducted a search for the material outside of subpoenaing the news media, or that such a search would be futile.  E.g., Peck v. City of Boston (In re Slack), 768 F. Supp. 2d 189 (D.D.C. 2011) (granting motion to quash subpoena where plaintiff’s general descriptions of efforts to obtain information from alternative sources did not suffice to show that alternative sources were unavailable); United States v. Hubbard, 493 F. Supp. 202, 205 (D.D.C. 1979) (quashing subpoena for reporter to testify at criminal suppression hearing where “alternative means” existed to obtain the requested information).

Not litigated.

The subpoenaing party must demonstrate that it has already conducted a search for the material outside of subpoenaing the news media or that such a search would be futile.  Prentice v. McPhilemy, 27 Med. L. Rptr. 2377, 2381 (D.C. Super. Ct. 1999) (noting that plaintiffs had demonstrated they could not obtain the information by means other than through discovery obtained from the media defendant); D.C. Code 16-4703(a)(2).

The party seeking to overcome the privilege must show that the journalist’s information cannot be obtained from alternative sources. § 90.5015(2)(b), Fla. Stat. (2023). The alternative sources prong of Section 90.5015 requires exhaustion of all alternative sources of information. This is an evidentiary burden -- the subpoenaing party must provide clear and specific proof of exhaustion. State v. Trepal, 24 Media L. Rep. 2595, 2598 (Fla. 10th Cir. Ct. Aug. 19, 1996). The subpoenaing party must prove not only that he or she has explored all alternative sources but also that every one of those sources is not available to testify concerning the information in the journalist’s possession.

In arguing motions to quash subpoenas, particularly in criminal cases, it is important to recognize that journalists are not private investigators at the disposal of the state and litigants. The journalist’s privilege is not to be used to resolve problems of proof. Thus, when alternative sources exist that are unreliable, the information is deemed obtainable from those sources, and the journalist’s privilege is not overcome. See Fla. v. Abreu, 16 Media L. Rep. 2493, 2494 (Fla. Cir. Ct. 1989) (the credibility of a witness is for the finder of fact to determine at an appropriate time and is not relevant to whether the witness is an alternative source within the meaning of the journalist’s privilege); see also Kidwell v. State, 730 So. 2d 670, 671 (Fla. 1998) (“extreme care must be taken to ensure that the media is [sic] not used as an investigative arm of the government”); State v. Davis, 720 So. 2d 220, 224 (Fla. 1998) (“the test was designed to prevent the government from using reporters as an investigatory arm of the government”). The credibility of the available alternative sources is for the finder of fact to determine at the proper time and has no bearing on whether such alternative sources are “available” within the meaning of the privilege. See Abreu, 16 Media L. Rep. at 2494 (whether testimony of other eyewitnesses is trustworthy is not relevant to the alternative sources inquiry of the journalist’s privilege); Tribune Co. v. Green, 440 So. 2d 484, 486 (Fla. 2d DCA 1983) (“[A]ny person who can provide the same information as [the journalist] is an alternative source” and “It is inconceivable that [the journalist] could add anything more to the testimony of the [ ] ‘first hand players’”). “The test is simply whether other sources for the same information are available.” Abreu, 16 Media L. Rep. at 2494.

A subpoenaing party must make an evidentiary showing that demonstrates that no alternative source exists. See, e.g., In re Paul, 270 Ga. 680, 687, 513 S.E. 2d 219, 224 (1999) (“The state cannot obtain the identity of confidential sources or information from newspapers under the second prong of the test without first exerting an effort to obtain the same information from county and city employees.”); Stripling v. State, 261 Ga. 1, 8-9, 401 S.E. 2d 500, 507(1991) (affirming trial court's protection of reporter's confidential sources under the privilege in a death penalty case where the “defense team made no effort to contact” fewer than a dozen former sheriff's department employees who could have been the reporter's sources).

There are no reported cases.

If the Branzburg test is literally applied, the subpoenaing party should be required to prove that the information sought cannot be obtained by alternative means less destructive of First Amendment rights. Ordinarily, one expects that such proof would come in the form of “I looked but could not find” evidence, even though this particular prong of the test does not specifically call for a “search.” However, the Idaho Supreme Court in Salsbury simply disregarded the fact that the subpoenaing party in that case--the county prosecutor--had made no search for an alternative source for the information. Id.  But see Ko v. Zilog, supra.

Illinois courts have not adopted a legal standard for determining exhaustion.  Instead, the Illinois Supreme Court has said that “the extent to which an investigation must be carried before the reporter’s privilege should be divested . . . depend[s] on the facts and circumstances of the particular case.” In re Special Grand Jury Investigation, 104 Ill. 2d 419, 427, 472 N.E.2d 450, 453-54 (1984); In re Arya, 226 Ill. App. 3d 848, 855, 589 N.E.2d 832, 836 (1992).

 

“[W]hile courts require exhaustion of sources, none have required . . . the State in a criminal investigation to prove exhaustion of ‘alternative sources’ of information by either conducting an undercover investigation or using informants in order to obtain evidence from witnesses who do not wish to speak to the police.” Id. at 859, 589 N.E.2d at 839.  On the other hand, the “legislature did not intend to compel reporters to become investigators for the State or anyone else. Accordingly, in order to satisfy the ‘exhaust all other available sources’ requirement of section 8-907(2) of the [Statute], a petitioner must satisfy the court that its investigation has been sufficiently thorough and comprehensive that further efforts to obtain the sought-after information would not likely be successful.” Id. at 861, 589 N.E.2d at 841.

 

Thus, to prove it has exhausted all its available sources, a petitioner must generally call other witnesses that possess the information before divesting a reporter of his privilege.  In re Special Grand Jury Investigation, 104 Ill. 2d at 427, 472 N.E.2d at 453-54; see, e.g., Kelley v. Lempesis, No. 13-cv-4922, 2015 WL 4910952 (N.D. Ill. Aug. 17, 2015) (quashing subpoena to broadcaster where issuing party “has not presented any evidence of actions he undertook to obtain the requested information from other sources before issuing the . . . subpoena”; party could have deposed witness with same information “but did not because he had hoped to receive [broadcaster’s] video outtakes recording [the witness’] statements”); see also Neal v. City of Harvey, Ill., 173 F.R.D. 231, 233, 25 Media L. Rep. 2403 (N.D. Ill. 1997) (quashing subpoena because information available from witnesses other than reporter); United States v. Lopez, 14 Media L. Rep. 2204, 1987 WL 26051 (N.D. Ill. 1987) (quashing criminal defendant’s subpoena for outtakes because of defendant’s failure to demonstrate outtakes contained information unavailable from other sources).

The subpoenaing party, most likely, only needs to assert that the information is unique and not likely available from another source. See In re WTHR-TV (State v. Cline), 693 N.E.2d 1, 9 (Ind. 1998).

The requesting party must show by a preponderance of the evidence that he or she reasonably exhausted other sources, such as by taking depositions of other persons with knowledge. See Waterloo/Cedar Falls Courier, 646 N.W.2d at 104 (declining to compel the editors to reveal privileged information where the college did not exhaust alternate sources before going after the editors’ privileged information).

The Kansas shield statute suggests that the party issuing the subpoena will be required to make a showing of the efforts made to obtain the information in issue “by readily available alternative means.”  K.S.A. 60-482(a)(2).  The language of the statute suggests that the showing must be in form of admissible evidence.  See, K.S.A. 60-482(b), defining “compelling interest” as “evidence likely to be admissible and has probative value .. . .”

No reported decisions.

There is no specific test that the subpoenaing party must pass to demonstrate that they have already conducted a search for the material outside of subpoenaing the news media member. However, the court will look to see if the "information is not obtainable from any alternative source." La. R.S. 45:1459 B(1)(c).

Maine's courts have not addressed this issue.

The subpoenaing party must demonstrate by clear and convincing evidence that it has exhausted all other avenues for the information it seeks from the news media member. See Md. Cts. & Jud. Proc. Code Ann. § 9-112 (d)(1)(ii).

In WBAL-TV Division v. State, the court concluded that the lower court had correctly found that the information sought was not otherwise available from non-media sources where WBAL was the sole possessor of the protected information and where the only individuals present when the protected information was recounted could not be expected to remember the information word for word. The court further reasoned . . . “the State was seeking verbatim statements. [T]he statements . . . constituted voluntary admissions of a criminal defendant [that] could not be duplicated through subsequent questioning.” WBAL-TV Division v. State, 477 A.2d 776, 10 Media L. Rep. 2121 (Md. 1984). In Prince George’s County v. Hartley, 822 A.2d 537, 31 Med. L. Rep. 1679 (Md. App. 2003), the Court indicated the due diligence prong was satisfied by a government investigator’s affidavit, without cross-examination, indicating the investigator had interviewed other potential sources of information, none of whom claimed to have relevant knowledge.

There is no case law on this issue.

There have been no Michigan appellate cases discussing this precise issue.

This will vary depending upon the circumstances of each case.

There is no statutory or case law addressing this issue.

While this issue has not been specifically addressed in the case law, Classic III notes that the court found important in its analysis that the subpoenaing party could likely obtain the same or similar evidence from other potential witnesses.  954 S.W.2d at 656.

If the statutory privilege applies, exhaustion of other sources is not an issue.

No reported cases.

In light of the absolute nature of the privilege, Nevada cases have not discussed any standards for proof of search.

No case expressly addresses this issue. In the Siel case the Court stated, “a defendant may overcome a press privilege to withhold a confidential source of news only when he shows . . . .” 122 N.H. at 259. Since source disclosure is a discovery issue, the standard of proof is most likely “more probable than not.”

In a criminal proceeding, the burden is on the defendant to show "by a preponderance of the evidence that there is a reasonable probability 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, which may be overcome by evidence that all or part of the information sought is irrelevant, immaterial, unnecessary to the defense, or that it can be secured from another source."  State v. Boiardo, 82 N.J. 446, 459 n. 10 (1978).

Under Rule 11-514, the subpoenaing party must “show[] by a preponderance of the evidence, including all reasonable inferences,” that he has already “reasonably exhausted alternative means of discovering the confidential information or sources.” Rule 11-514(C)(2) NMRA.

While courts have not delineated a clear standard for proving "exhaustion," merely asserting that a search has been done will not suffice. The party seeking disclosure "has an obligation to demonstrate that it has first endeavored to obtain this information by other means instead of directly intruding upon the self-imposed confidentiality of those who gather news." Greenleigh Assoc., Inc. v. N.Y. Post Corp., 79 A.D.2d 588, 434 N.Y.S.2d 388, 389 (1st Dep't 1980) (citing Silkwood v. Kerr McGee Corp., 563 F.2d 433 (10th Cir 1977)); see also Yellon v. Lambert, 29 Med. L. Rptr. 1308, 1313, aff’d, 289 A.D.2d 486, 735 N.Y.S.2d 592 (2d Dep't 2001) (plaintiff "has an obligation to demonstrate that he has first endeavored to obtain this information by other means, and has been unsuccessful"); In re CBS Inc. (Vacco), 232 A.D.2d 291 (N.Y. App. Div. 1st Dep’t 1996); Flynn v. NYP Holdings Inc., 652 N.Y.S.2d 833, 835 (N.Y. App. Div. 3rd Dep’t 1997) (quashing subpoena in part because plaintiff "has not detailed any efforts made to obtain the requested documents or the information contained therein," and had thus not satisfied the third prong of the test).

There are no reported appellate cases under the new shield law that attempt to define the proof of search that the requesting party must make. But see infra Section VI(B)(2)(a), Wiggins and Higgins. In a pre-shield law case, State v. Rogers, 9 Media L. Rep. 1254, 1255 (N.C. Superior Ct. 1983), the trial court stated that there must be a serious attempt to exhaust all alternative sources of the information sought, and that by examining a sufficient number of witnesses and building a record, the moving party may surmount this threshold requirement. But see Miller v. Mecklenburg County, 602 F. Supp. 675 (W.D.N.C. 1985) and 606 F. Supp. 488 (W.D.N.C. 1985), aff'd, 813 F.2d 402 (4th Cir. 1986) (not addressing the reporter's privilege issue), cert. denied, 479 U.S. 1100 (1987) (plaintiff introducing depositions and other results of her investigative efforts into evidence to prove that she had exhausted all potential alternative sources of the information sought from the reporter).

The plain language of the statute does not require that the subpoenaing party conduct an exhaustive search. However, North Dakota case law indicates that it is one of the factors to consider in determining whether the court should order disclosure.

By the express terms of the statute, the party seeking disclosure must clearly and convincingly demonstrate that it has used “due diligence” to obtain the information sought from alternative sources.

No statutory or case law addressing this issue.

With respect to the First Amendment privilege, the party seeking disclosure should offer evidence that it made attempts to obtain the information from alternative sources, or that such attempts would be futile. See Davis v. Glanton, 705 A.2d 879, 885-86 (Pa. Super. 1997). The Pennsylvania courts, however, have not elaborated on the precise quantum of proof a party must offer concerning its search for alternative sources.

Although there are no specific statutes or case law on point, it is presumed that all searches are made in good faith.

The party seeking to overcome the privilege must show by clear and convincing evidence that a reasonable effort has been made to obtain the information from an alternative source, but the effort failed.

This, too, is uncertain.

The subpoenaing party must prove, by clear and convincing evidence, that alternative sources are unavailable. Tenn. Code Ann. § 24-1-208(c)(2)(B); see Moore v. Domino's Pizza, L.L.C., 199 F.R.D. 598 (W.D. Tenn. 2000); State ex rel. Gerbitz v. Curriden, 738 S.W.2d 192 (Tenn. 1987).

Under the civil and criminal statute, the subpoenaing party must generally make a clear and specific showing that all reasonable efforts have been exhausted to obtain the information from alternative sources.  Tex. Civ. Prac. & Rem. Code 22.024; Tex. Code Crim. Prac. art. 38.11 §5.  In subpoenas seeking information concerning confidential sources, only a clear and specific showing that reasonable efforts have been exhausted is required.  Tex. Code Crim. Prac. art. 38.11 §4.  This standard is greater than a preponderance of evidence but likely lower than clear and convincing evidence.

There is no statutory or case law addressing this issue.

There are no reported Vermont cases regarding what proof of search the subpoenaing party needs to make.

The subpoenaing party should demonstrate that it has attempted to locate the information from sources other than the news media member claiming the privilege. See Philip Morris Cos. v. Am. Broad. Co., 36 Va. Cir. 1 (Richmond 1994).

Washington's case law has not yet squarely addressed this issue.

West Virginia courts have not addressed specifically the standard of proof a subpoenaing party must meet to demonstrate it has conducted a sufficient search outside of subpoenaing the member of the press. Implicit in the West Virginia Supreme Court's decision in Hudok, however, is a requirement of a most comprehensive search--that is, a party seeking to compel information from a reporter generally must show "clearly and specifically" that the information sought from the reporter is (1) "highly material and relevant, necessary or critical to the maintenance of the case" and (2) "not obtainable from other available sources." 389 S.E.2d at 193. The requirement that the unobtainability of the information from other available sources must be shown "clearly and specifically" suggests all other potential sources for the information must be canvassed before a court will allow a subpoena to a reporter to stand.

In the context of a subpoena to produce unpublished, non-confidential information (photographs of a crime scene) in a criminal case, the West Virginia Supreme Court also stated that the "particularity" with which the defendant must satisfy the balancing test contemplates "some explanation by the defendant as to what information he/she expects the media material to contain. A mere bald assertion, standing alone, that the allegedly privileged information satisfies the requisite criteria will not suffice." As part of the foregoing "explanation," it seems obvious that the defendant will have to explain the factual basis for asserting that the requested breach of the reporter's privilege will lead to relevant material not available from other sources. In a revealing footnote, however, the majority of the court cited only to cases where a motion to quash a subpoena for media photographs in a criminal case was denied -- suggesting that under such circumstances the burden of proof on the subpoenaing party is light. Nevertheless, it must be remembered that the court in that case specifically refused to define the contours of the reporters' privilege in other types of factual circumstances, so that holding can be viewed as limited to the specific facts of that case.

Not applicable.