C. Third-party subpoenas

There is no case law addressing this issue.

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

Third parties who play an "integral role" in a reporter's work are protected by the same privileges afforded to reporters in the Second Circuit. N.Y. Times Co. v. Gonzales, 459 F.3d 160 (2d Cir. 2006). In Gonzales, the Second Circuit explicitly held that "whatever rights a newspaper or reporter has to refuse disclosure in response to a subpoena extends to the newspaper's or reporter's telephone records in the possession of a third party provider." Id. at 163.

Courts in the Third Circuit do not appear to have addressed directly the question of what rights, if any, a reporter has in connection with the issuance of a subpoena to a third party, such as a credit card company or telephone service provider, for records concerning a reporter's transactions or calls.

There is no statutory or case law in the Fourth Circuit discussing subpoenas to third parties (credit card companies, telephone companies, etc.) designed to elicit information about a reporter’s sources.

No reported decision of the Fifth Circuit has addressed media efforts to quash subpoenas issued to third parties in an effort to discover a reporter's source.

There is no statutory or case law addressing this issue.

No reported federal cases in the Seventh Circuit have discussed subpoenas from non-parties such as telephone companies or credit card companies.

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

There is no statutory or case law addressing this issue.

There is no Alabama statutory or reported case law addressing the issuance of subpoenas to third parties in an attempt to discover a reporter's source.

The issue of subpoenas to third parties, such as credit card companies, telephone companies, or Internet service providers, in an attempt to discover a reporter's source, has not been addressed by the courts or legislature in Alaska.

There are no statutory provisions and no reported cases that address the media's recourse when third-party subpoenas are used in an attempt by others to discover a reporter's source.

Part of the burden on a party seeking disclosure of a source is that he must demonstrate that he has made a reasonable effort to determine the identity of a source prior to seeking to disclosure from the reporter. Saxton, supra. There are no reported cases in Arkansas that have dealt with any attempt by a government official or party opponent to subpoena the telephone records or other records of a news organization.

There is no statutory or case law addressing whether a reporter has the right to challenge a subpoena issued to a third party in an attempt to discover the reporter’s unpublished information. However, California law generally prohibits the release of personal information without notice to the affected party. See Cal. Code Civ. Proc. § 1985.3 (requiring notice before “consumer’s personal records” may be subpoenaed); Cal. Code Civ. Proc. § 1985.6 (requiring notice before employment records may be subpoenaed). In addition, telephone records may not be released without the consumer’s consent. Cal. Code Civ. Proc. § 1985.3(f).

The California Constitution includes a “right of privacy” which has been extended to include a variety of personal information from financial records to classroom discussions. E.g., Valley Bank of Nev. v. Superior Court, 15 Cal. 3d 652, 542 P.2d 977, 125 Cal. Rptr. 553 (1975); White v. Davis, 13 Cal. 3d 757, 533 P.2d 222, 120 Cal. Rptr. 94 (1975). In Valley Bank of Nevada, the California Supreme Court held that when a bank receives a subpoena seeking personal information about one if its depositors,

[T]he bank must take reasonable steps to notify its customer of the pendency and nature of the proceedings and to afford the customer a fair opportunity to assert his interests by objecting to disclosure, by seeking an appropriate protective order, or by instituting other legal proceedings to limit the scope or nature of the matters sought to be discovered.

15 Cal. 3d at 658. This holding has been applied in other areas and arguably would require notice to the reporter before the third party may disclose any of the reporter’s personal information. E.g., Sehlmeyer v. Dep’t of Gen. Servs., 17 Cal. App. 4th 1072, 21 Cal. Rptr. 2d 840 (1993) (notice must be given before physicians, psychotherapists and attorneys can be required to disclose information about person who initiated administrative proceedings against current psychologist); Olympic Club v. Superior Court, 229 Cal. App. 3d 358, 282 Cal. Rptr. 1 (1991) (notice must be given before private club released names of applicants rejected during past decade).

While there are no cases specifically addressing the question of third-party subpoenas in media cases, in Colorado v. Thill, 98CR621 (Colo. Dist. Ct. Feb. 5, 1999), a criminal case, a Denver District Court judge excluded as improperly obtained evidence of a television reporter's telephone records, which, without using a subpoena, the defense had obtained directly from the reporter's cellular carrier. The defense had contacted the telephone company directly after the court quashed its subpoena directed at forcing the reporter to testify as to the identity of a source. See also Tattered Cover, Inc. v. City of Thornton, 44 P.3d 1044 (Colo. 2002) (privacy and first amendment rights upheld against third party search warrant).

The Shield Law’s protection extends to subpoenas issued to third parties if the subpoenas seek “information concerning business transactions between such third party and the news media for the purpose of obtaining” information that would be protected by the Shield Law if sought directly from the news media. When such subpoenas are issued, the statute requires that notice be given to the affected news media, and that the affected news media has an opportunity to be heard.

Courts have not addressed a media interest in fighting subpoenas to third parties seeking to discover a reporter’s source. To the extent that media have an interest which will be invaded by such a subpoena, courts presumably will recognize their right to intervene to protect that interest, as they have in cases where orders sealing a court file are at issue.

Subpoenas can be issued to third parties—such as credit card companies, telephone companies, and Internet service providers—in an attempt to discover a reporter’s source.  The D.C. Circuit has ruled that at least in the context of a criminal investigation, “journalists . . . have no First Amendment interest in third-party records which disclose the identity of a secret source and consequently, have no First Amendment right to notice of subpoenas directed at such records.” Reporters Comm. for Freedom of Press v. AT&T Co., 593 F.2d 1030, 1053 (D.C. Cir. 1978).

However, Justice Department guidelines instruct the Attorney General to weigh essentially the same factors “in determining whether to authorize the use of a subpoena [or other court] order to obtain from third parties the communications records or business records of a member of the news media” as the Attorney General should consider in deciding whether to authorize the issuance of a subpoena to the press itself.  28 C.F.R. § 50.10(c)(5).

There is no statutory or case law addressing a media interest in fighting subpoenas issued to third parties in an attempt to discover a reporter's source.

No statutory or case law addressing this issue exists.

Florida courts do not appear to have addressed whether any privilege applies to records third parties might have (e.g., telephone records) that relate to newsgathering.

Under Georgia law, third parties receiving a notice for production of documents or a subpoena for production of documents have an opportunity to object. See, e.g., O.C.G.A. §§ 9-11-34(c)(1); 9-11-45(a)(2). Credit card companies, telephone companies and internet service providers, thus, can object to such subpoenas where they are issued to identify a client news organization's confidential sources or other privileged information. However, Georgia law does not provide the news media with automatic notice of such subpoenas, so cooperation from organizations providing services to the news media is essential to protect news gatherers' rights.

There is no authority in Hawai'i regarding subpoenas issued to third parties in an attempt to discover a reporter's source.

There are no known Idaho cases addressing the issue of whether a reporter has the right to intervene in efforts to use third-parties, such as telephone companies, to obtain information that might disclose the identify of a confidential source. Because the reporter’s privilege in Idaho appears to be personal to the media witness, rather than the source, it is unlikely that Idaho courts would rule that the reporter's privilege extends in such a manner as would prohibit discovery from other parties, or that would prohibit use of such information in the judicial proceeding.

There is no Illinois statutory or case law addressing this issue.

There is no statutory or case law on this issue.

No cases or statutory authority address this issue.

There is no statutory or case law addressing this issue.

There have been no reported instances in Kentucky of subpoenas being issued to third parties in attempts to discover a reporter's source.

There is no statutory language or Louisiana case law addressing this issue.

Under the shield law, the protection from compelled disclosure of confidential sources and information "also applies with respect to any subpoena issued to, or other compulsory process against, a 3rd party that seeks records, information or other communications relating to business transactions between the 3rd party and the journalist" for the purpose of discovering the identity of the confidential source or obtaining confidential information. "Whenever a subpoena is issued to, or other compulsory process is issued against, a 3rd party that seeks records, information or other communications on business transactions with the journalist, the affected journalist must be given reasonable and timely notice of the subpoena or compulsory process before it is executed or initiated and an opportunity to be heard. In the event that the subpoena issued to, or other compulsory process against, the 3rd party is in connection with a criminal investigation in which the journalist is the express target and advance notice as provided in this section would pose a clear and substantial threat to the integrity of the investigation, the governmental authority shall so certify to such a threat in court and notification of the subpoena or compulsory process must be given to the affected journalist as soon as it is determined that the notification will no longer pose a clear and substantial threat to the integrity of the investigation." 16 M.R.S.A. § 61(3).

There are no Maine decisions addressing third-party subpoenas for non-confidential sources or information.

Maryland case law does not discuss a media interest in fighting subpoenas issued to third parties in an attempt to discover a reporter's source. Specifically, the Maryland Shield Law applies to persons employed by the news media in a news gathering or news disseminating capacity; independent contractors of the news media acting within the scope of a contract in any news gathering or news disseminating capacity; and enrolled post-secondary students engaged in any news gathering or news disseminating capacity recognized by the institution as a scholastic activity or in connection with a school-related activity. Md. Cts. & Jud. Proc. Code Ann. § 9-112(b).

There appears to be no Massachusetts law on this issue.

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

There are no known instances of third-party subpoenas in Minnesota involving attempts to discover a reporter's sources.

There is no statutory or case law addressing this issue.

There is no statutory or case law addressing this issue other than that set out above.

In 2015, the Montana Legislature amended the law to explicitly extend the protection of the Media Confidentiality Act to third party entities that store the privileged information. While the issue had never come up before, legislators wanted to be proactive about what they perceived to be a “loophole” in the current law which would, in theory, allow someone to subpoena a third party such as Google or Yahoo in order to get otherwise privileged information. Montana courts have not addressed a media interest in fighting third party subpoenas.

The courts have not addressed a media interest in fighting subpoenas issued to third parties in an attempt to discover a reporter's source.

It does not appear that the Nevada Supreme Court has addressed the issue of whether subpoenas can be issued to third parties in an attempt to discover a reporter's source.

There is no statutory or case law addressing this issue.

There are no cases of third-party subpoenas to circumvent the privilege in New Jersey.

No New Mexico law specifically addresses this issue.

New York courts have not been as receptive as other state courts to the efforts of journalists and news organizations to quash subpoenas directed to third parties in order to obtain information such as phone, credit card or other records which would, if disclosed, reveal confidential sources. See, e.g., Philip Morris v. ABC, 23 Media L. Rep. 2438 (Va. Cir. Ct. 1995) (cognizant of ABC's First Amendment interests in the confidentiality of its sources, court applied tripartite analysis of Branzburg v. Hayes, 408 U.S. 665 (1972) to ABC's motion to quash subpoena for expense records of third parties which would have revealed confidential sources).

In the leading New York case, Greenfield v. Schultz, 173 Misc.2d 31, 660 N.Y.S.2d 624 (N.Y. Sup. Ct. N.Y. County 1997), aff'd in part, vacated in part, 251 A.D.2d 67, 673 N.Y.S.2d 684 (1st Dep't 1998), an editor at The New York Times sought to compel the defendant to return phone records it had allegedly obtained from a phone company pursuant to a third party subpoena in the context of a landlord-tenant lawsuit with the editor. The editor, among other things, contended that production of the phone records would violate his rights under the First Amendment and New York's Shield Law by revealing the identity of his confidential sources. Rejecting this argument, the court applied the reasoning in Reporters Comm. for Freedom of the Press v. AT&T, 593 F.2d 1030, 1042-1046 (D.C. Cir. 1978), finding that no journalistic privilege based on the First, Fourth or Fifth Amendments attaches to third-party billing records. Having noted the provisions of the Shield Law, the court concluded that it "perceive[d] no reason to expand the constitutional protection so that it cloaks third-party sources of non-confidential information with a . . . qualified privilege." 173 Misc.2d at 38, 660 N.Y.S.2d at 630. The First Department of the Appellate Division, while modifying the order of the lower court and vacating its award of sanctions against the editor individually and against his attorney, affirmed the lower court's rejection of the editor's argument regarding the subpoena. 251 A.D.2d 67, 673 N.Y.S.2d 684.

As to the question of standing to bring an action to quash a subpoena directed towards a third party where disclosure would reveal confidential sources, no New York court has explicitly addressed whether a journalist or media organization can premise its right to sue on the basis of its First Amendment interests in confidentiality of its sources. In the absence of any such valid interest, the general rule may be that some sort of possessory or proprietary interest in the information subpoenaed is required. See, e.g., People v. Di Raffaele, 55 N.Y.2d 234, 433 N.E.2d 513 (1982) (rejecting claim by non-media defendant that his toll-billing records were obtained in violation of his constitutional privilege against self-incrimination because defendant, "having no possessory or proprietary interest in the records, [had] no standing to sue").

There are no reported cases applying state law in which subpoenas have been issued to third parties such as telephone companies or Internet service providers in an attempt to locate a journalist's source or other protected newsgathering information.

However, in a highly publicized case brought in federal court in North Carolina, a federal court issued a protective order denying access to such information. See Food Lion, Inc. v. Capital Cities/ABC, Inc., 951 F. Supp 1211 (M.D.N.C. 1996). Food Lion arose out of the broadcast of a Prime Time Live program in which journalists used hidden cameras and "undercover" employees to suggest that Food Lion's corporate goals of promoting efficiency and reducing waste result in the sale of unsanitary food to consumers. In discovery, Food Lion issued a large number of third party subpoenas to hotels, letter carrier services, and telecommunications companies seeking documentation of communications to and from ABC journalists during an eighteen-month period. The district court issued a protective order prohibiting these third party subpoenas on the grounds that the subpoenas (i) were overbroad and (ii) intruded upon ABC's First Amendment interest in protecting confidential sources. With regard to the constitutional basis of its decision, the court relied on a Fourth Circuit case arising out of North Carolina that recognized the reporter's privilege under the federal constitution, Miller v. Mecklenburg County, 602 F. Supp. 675, 11 Media L. Rep. 1566 (W.D.N.C. 1985), aff'd, 813 F.2d 402 (4th Cir. 1986), cert. denied, 479 U.S. 1100 (1987), but neither the Food Lion nor the Miller court specified whether they were applying North Carolina law.

Under North Carolina's shield law, the definition of "journalist" includes "employees, independent contractors, or agents" of the journalist. See N.C. Gen. Stat. § 8-53.11(a)(1). Therefore, third party subpoenas that are intended to circumvent the reporter's privilege are prohibited to the extent they are directed at third parties who may be characterized as "agents" of the journalist. In addition, journalists may still raise objections to such third party subpoenas based on the protections of the federal and state constitutions.

The courts in North Dakota have not considered whether a plaintiff can issue third party subpoenas in order to discover a reporter's sources. If a subpoena was served on a third party, no special notice to the reporter would be required.

We are not aware of any circumstance in which subpoenas to third parties have been used in an Oklahoma proceeding as a way of discovering a reporter’s sources.  Under general principles of Oklahoma law, a reporter would presumably have the right to intervene in the proceeding to assert his or her interest in protecting the identity of sources or the content of unpublished information, although the risk of intervention and submitting to the jurisdiction of the court would have to be carefully weighed.

No statutory or case law addressing this issue.

There is no statutory or case law in Pennsylvania addressing this issue beyond the many cases involving subpoenas to media witnesses discussed elsewhere in the Pennsylvania – Privilege Compendium.

There is no statutory or case law addressing this issue.

No court in South Carolina has dealt with this issue although the third-party subpoenas were used in the Food Lion v. ABC case. As a theoretical matter, could ABC have moved to quash those subpoenas on privacy grounds?

There is no case law on the subject.

There is no statutory or case law on the topic of third-party subpoenas.

Anyone affected by a subpoena may file a motion to quash or for a protective order seeking to have the subpoena quashed in whole or in part. Tex. R. Civ. Proc. 192.6(a). Therefore, not only the party to whom the subpoena is directed, but also any party affected by the subpoena, may attempt to get the subpoena quashed. Thus, if a reporter discovers that a civil litigant has subpoenaed telephone records in an effort to discover the reporter's confidential source, the reporter may file a motion to quash the subpoena based on an assertion of the reporter's privilege, even if the subpoena is not directed at the reporter him or herself.

There is no statutory or case law addressing this issue.

The Vermont Shield Law extends the reporter’s privilege to “a person other than a journalist,” where a subpoena seeks “news or information obtained or received from a journalist if a journalist could not be compelled to disclose the news or information” pursuant to the statute.  12 V.S.A. §§ 1615(b)(1)(B), 1615(b)(2)(B).  This applies to both confidential and non-confidential information.  Id.

Philip Morris Cos. v. Am. Broad. Co., 36 Va. Cir. 1 (Richmond 1994), extended the privilege to protect third party records that could be used to determine the identity of a confidential source, such as credit card records, telephone billing records, and airline records of the reporter.

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

West Virginia courts have not had occasion to address the circumstance where a media entity has an interest in fighting subpoenas issued to third parties in an effort to discover the media's source.

Wisconsin’s shield law explicitly addresses the issuance of subpoenas to news persons.

There are no reported cases in Wyoming of information being sought from third parties, such as telephone companies, regarding newsgathering efforts by the media.