D. Non-compliance remedies

There is no case law addressing these specific issues in the context of a reporter's assertion of privilege. However, the federal rules of criminal and civil procedure expressly provide for contempt sanctions to be entered against any person who refuses to comply with a court order, including a subpoena. See Fed. R. Civ. P. 45(g); Fed. R. Crim. P. 17(g).

The courts have broad discretion in fashioning remedies to force a reporter to comply with a valid subpoena. A court may hold the subpoenaed party in contempt for non-compliance under Fed. R. Civ. P. 45(g) and under Fed. R. Crim. P. 17(g).

A court may hold an individual in civil or criminal contempt for refusing to comply with a subpoena. Contempt proceedings are treated as either civil or criminal, depending on their primary purpose. Lamar Financial Corp. v. Adams, 918 F.2d 564, 566 (5th Cir. 1990). Generally speaking, if the court seeks to coerce compliance with a court order or to compensate another party for the contemnor's violation, it will hold an individual in civil contempt. If a court seeks to punish a contemnor for not complying with a subpoena or to vindicate the authority of the court, it may hold an individual in criminal contempt. Id.  The type of remedy may depend on whether the contempt is criminal or civil; for example, “a lump sum fine that punishes past conduct is criminal, while a fine that accrues on an ongoing basis in response to noncompliance is civil.” In re Bradley, 588 F.3d 254, 263 (5th Cir. 2009).

If the court decides to hold an individual in criminal contempt, it is required to notify the contemnor explicitly that the proceedings against him are criminal. Id. at 567; Fed. R. Crim. P. 42(a)(1). As a constitutional matter, imprisonment and a fine generally cannot be combined as a sanction for criminal contempt. In re Bradley, 318 U.S. 50, 63 S. Ct. 470 (1943). A finding of civil contempt, however, "permits the coercive combination of both fine and imprisonment." In re Dinnan, 625 F.2d 1146, 1150 (5th Cir. Unit B Aug 1980); see also United States v. Scott, 2004 WL 1068118, at *3 (N.D. Tex. 2004).

If a reporter fails to comply with a subpoena and has no adequate justification, it may be deemed a contempt of the court from which the subpoena was issued. Fed. R. Civ. P. 45(e). The advice of an attorney that a subpoena does not need to be obeyed is not a sufficient excuse for disobedience. The reporter may also be confined until he complies with the subpoena, or until the expiration of the grand jury, if he is involved in a grand jury proceeding. See In re Grand Jury Proceedings, 810 F.2d 580, 583 (6th Cir. 1987).

There is no statutory or case law addressing this issue.

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

Civil and criminal courts may hold any person who fails to obey a subpoena, without excuse, in civil or criminal contempt. ALA. R. CIV. P. 45 (e), 70A; ALA. R. CRIM. P. 33.1, 33.2.

Alaska appellate courts have not had occasion to squarely address the existence or scope of a reporter's privilege. Various trial courts have recognized and applied the qualified constitutional privilege in a number of cases, and in none of these has testimony or production of documents been compelled.

Typically, an order to compel production is available to force a journalist to comply with a valid, upheld subpoena. There are no reported cases concerning the kinds of contempt remedies that may be imposed for a journalist's failure to comply. Nevertheless, Arizona cases discussing contempt proceedings generally indicate that civil, not criminal, contempt proceedings could be initiated against a reporter who fails to comply with an order enforcing a valid subpoena. See, e.g., State v. Cohen, 15 Ariz. App. 436, 489 P.2d 283 (1971) ("civil contempt" consist of failing to do something which the party has been ordered to do for the benefit of another party; civil contempt describes the situation where the parties held in contempt "carry the keys of their prison in their own pockets").

If a non-party reporter invokes the privilege but is nevertheless ordered to testify, the reporter is entitled to bring a direct appeal from that order. See, e.g., In re Paul, 270 Ga. 680, 683, 513 S.E. 2d 219, 222 (1999) (“[W]e hold that non-parties engaged in news gathering may file a direct appeal of an order denying them a statutory reporter's privilege under the collateral order exception to the final judgment rule.”). The filing of the notice of appeal generally stays the trial court from imposing any punishment to compel compliance with its order. See generally O.C.G.A. §§ 5-6-46; 5-6-13(a).

There is no current Hawai‘i statute or other authority addressing this issue.

In Idaho, trial courts have broad contempt powers to exercise in their discretion to enforce judicial orders. The use of such powers in enforcing orders compelling testimony from reporters has been considered and implicitly approved by the Idaho Supreme Court. See Marks v. Vehlow, 105 Idaho 560, 671 P2d 473 (1983). Such powers include the use of civil fines and imprisonment. Idaho has had statutory provisions, since its territorial days, outlining the types of acts that are properly deemed contempts of the authority of the court. See Title 7, Chapter 6, Idaho Code. However, although such statutory provisions are referenced in various of the Idaho decisions addressing the contempt power, Idaho courts have also drawn upon constitutional powers and common-law contempt powers in justifying the exercise of such power in particular cases. Nonetheless, the statutory provisions should be consulted for possible particular application to the facts in any contempt order circumstance.

Refusal to appear or testify following valid subpoena constitutes contempt of court. Iowa Code § 665.2.

The normal remedies for failure to comply with a valid court order apply equally to reporters. A reporter who does not comply with a valid, upheld subpoena in a civil matter is subject to contempt of court in which the action is pending. Ky. R. Civ. P. 45.06. In a criminal proceeding, a reporter who, without adequate excuse, fails to obey a valid subpoena is subject to even harsher sanctions. A judge may hold the reporter in contempt or issue a bench warrant for their arrest when immediate attendance is compelled. Ky. R. Crim. P. 7.02(7).

"A person who, without reasonable excuse, fails to obey a subpoena may be adjudged in contempt of the court which issued the subpoena. The court may also order a recalcitrant witness to be attached and brought to court forthwith on a designated day." La. Code Civ. Proc. art. 1357; see also La. Code Civ. Proc. art. 223 ("A person who has committed a direct contempt of court may be found guilty and punished therefor by the court forthwith, without any trial other than affording him an opportunity to be heard orally by way of defense or mitigation. The court shall render an order reciting the facts constituting the contempt, adjudging the person guilty thereof, and specifying the punishment imposed."); La. Code Civ. Proc. art. 224 ("Wilful disobedience of any lawful judgment, order, mandate, writ or process of the court constitutes a constructive contempt of court."); La. Code Civ. Proc. art. 225 ("A person charged with committing a constructive contempt of a court of appeal may be found guilty thereof and punished therefore after receiving a notice to show cause, by brief, to be filed not less than forty-eight hours from the date the person receives such notice, why he should not be found guilty of contempt and punished accordingly. The person so charged shall be granted an oral hearing on the charge if he submits a written request to the clerk of the appellate court within forty-eight hours after receiving notice of the charge . . . if the person charged with contempt is found guilty the court shall render an order reciting the facts constituting the contempt, adjudging the person charged with contempt guilty thereof, and specifying the punishment imposed.").

“When a person, summoned and obliged to attend before any judicial tribunal, fails to do so without reasonable excuse, he is liable to the party aggrieved for all damages sustained thereby.” 16 M.R.S.A. § 102. The court may also use contempt to compel compliance.

There have been no appellate cases discussing this precise issue. However, Michigan does recognize civil and criminal contempt. See MCR 2.506(E). Criminal contempt is limited to contumacious behavior in the presence of the court and requires honoring all rights of the criminal defendant. MCL 600.1701(a) (allowing for imprisonment for contemptuous behavior).

The purpose for which the court's power is exercised is a determining factor in classifying contempt as either civil or criminal. Common Cause of Mississippi v. Smith, 548 So. 2d 412, 415 (Miss. 1989).

As stated above, if a reporter fails to honor a valid, upheld subpoena, a court may issue sanctions for contempt of court. Fortunately for reporters in the state, no examples of contempt citations have been entered, so far as it is known by this author.

Pursuant to § 3-1-501, MCA, non-compliance with a valid, upheld subpoena can result in either civil contempt, § 3-1-520, MCA or criminal contempt, § 45-7-309, MCA.

Although there is no case law directly addressing the issue of non-compliance remedies, it appears that a reporter who refuses to comply with a court order to testify or produce documents could be held in civil contempt or criminal contempt. If a reporter is a party to a civil action, the court may also impose discovery sanctions.

CPLR § 2308 sets forth the penalties available for disobedience of subpoenas, assuming the Shield Law's protections have been overcome. Pursuant to § 2308(a), non-compliance with a judicial subpoena (defined as a "subpoena issued by a judge, clerk or officer of the court") is punishable as a contempt of court. Additionally, the subpoenaed person, whether or not a party witness, may be liable to the issuer of the subpoena for damages caused by non-compliance and a fine of up to $50. If the subpoenaed person is a party, the court may strike his or her pleadings. And the court may issue a warrant directing the sheriff to forcibly commit the witness to jail until he or she complies. CPLR § 2308(a).

Pursuant to § 2308(b), non-compliance with a non-judicial subpoena (i.e., one issued in an out-of-court proceeding such as an administrative hearing or an arbitration) is not immediately punishable as a contempt of court. Instead, the issuer or person on whose behalf the subpoena was issued may move in the New York Supreme Court to compel compliance. On such a motion, if the court finds that the subpoena was authorized, it must order compliance and may impose costs of up to $50. If the court orders compliance and the subpoenaed person continues to disobey, as with judicial subpoenas pursuant to sub-section (a), he or she will be liable to the issuer for damages caused by non-compliance and a fine of up to $50. Additionally, the court may direct the sheriff to produce the witness before the appropriate body (e.g., an administrative tribunal) and, if he refuses without reasonable cause to be examined or otherwise comply with the subpoena, to commit him to jail until he complies.

The key difference between a judicial subpoena and a non-judicial subpoena was aptly summarized by the First Department of New York's Appellate Division in Reuters Ltd. v. Dow Jones Telerate, Inc., 231 A.D.2d 337, 662 N.Y.S.2d 450 (1st Dep't 1997). As the court noted:

In the case of judicial subpoenas, including those issued by an attorney of record in a matter pending before a court, a person who fails to comply, without making a motion to quash, runs the risk of being held in contempt based directly on that failure. In distinction, a person who is served with a non-judicial subpoena cannot be held in contempt for failure to comply unless and until a court has issued an order compelling compliance, which order has been disobeyed. Thus, there is no need to move to quash such a subpoena in order to avoid sanctions, and one who is served and does not wish to comply may safely wait until the party who served the subpoena moves to compel compliance.

Id. at 341. (citations omitted); see also David D. Siegel, N.Y. Practice § 385 (West Publishing, 3d Ed. 1999); David D. Siegel, Practice Commentaries, McKinney's Consolidated Laws of New York Annotated Civil Practice Law and Rules § 2308.

North Dakota does not have any special laws to force a journalist to comply with a valid, upheld subpoena. General rules apply.

Rule 45(E), Ohio Rules of Civil Procedure:

Failure by any person without adequate excuse to obey a subpoena served upon that person may be deemed a contempt of the court from which the subpoena issued. A subpoenaed person or that person's attorney who frivolously resists discovery under this rule may be required by the court to pay the reasonable expenses, including reasonable attorney's fees, of the party seeking the discovery. The court from which a subpoena was issued may impose upon a party or attorney in breach of the duty imposed by division (C)(1) of this rule an appropriate sanction, which may include, but is not limited to, lost earnings and reasonable attorney's fees.

Rule 17(G), Ohio Rules of Criminal Procedure:

Failure by any person without adequate excuse to obey a subpoena served upon him may be deemed a contempt of the court or officer issuing the subpoena.

Under Okla. Stat. tit. 12, § 2004.1, the failure by any person to obey a subpoena “without adequate excuse” is deemed a contempt of court from which the subpoena was issued.  In addition, if the reporter or media organization is a party, the sanctions for non–compliance in discovery set out in Okla. Stat. tit. 12, § 3237 are also available.

If a media member refuses to comply with a court order to disclose information, the court can impose contempt sanctions. Commonwealth v. Bowden, 838 A.2d 740, 760 (Pa. 2003). Contempt power “is a right inherent in courts and is incidental to the grant of judicial power under Article 5 of [Pennsylvania’s] Constitution.” Commonwealth v. Marcone, 410 A.2d 759, 763 (Pa. 1980). Contempt is classified along two axes: whether it is civil or criminal, and whether it is direct or indirect. See Crozer-Chester Med. Ctr. v. Moran, 560 A.2d 133, 136 (Pa. 1989).

Civil contempt is intended to coerce compliance with a court order or, in some circumstances, to compensate someone who has been harmed by noncompliance. Criminal contempt, on the other hand, is intended to punish past failure to obey the court. Bowden, 838 A.2d at 760. Direct contempt occurs when a person disobeys an order in the court’s presence, such as by refusing to testify while in the courtroom. Crozer-Chester, 560 A.2d at 131. Indirect contempt occurs when an order is disobeyed outside the court’s presence, such as by refusing an order to appear. Id. at 130.  Thus, depending on the location of the conduct and the purpose of the contempt charge, contempt may be civil and direct, civil and indirect, criminal and direct, or criminal and indirect. Id. at 130-31.

Although Pennsylvania has statutes addressing contempt and limiting the penalties a court may impose for contempt, see 42 Pa. Cons. Stat. §§ 4132–4139, the Supreme Court has ruled that those limits are an unconstitutional constraint on courts’ inherent power to enforce their orders. See Commonwealth v. McMullen, 961 A.2d 842, 849–50 (Pa. 2008) (striking down 42 Pa. Cons. Stat. § 4136(b), which limited the penalty for indirect criminal contempt to 15 days’ imprisonment); In re Order Amending Rules 140, 141 & 142 of the Pa. Rules of Criminal Procedure, 2018 Pa. LEXIS 4, at *24 (Pa. Jan. 2, 2018) (adopting a rule comment, citing McMullen, that “legislative limitations on a court’s power to sentence for contempt are unconstitutional”); see also Commonwealth v. Leonard, 2014 Pa. Super. Unpub. LEXIS 3265, at *24 (Pa. Super. Mar. 24, 2014) (holding that the logic of McMullen also invalidated statutory limits on a court’s contempt powers in §§ 4133 and 4137(c)).

Nevertheless, in civil contempt cases, “a court must exercise the least possible power suitable to achieve the end proposed.” Commonwealth v. Cromwell Twp., 32 A.3d 639, 653 (Pa. 2011) (citing Spallone v. United States, 493 U.S. 265, 276 (1990)).

“Broadly defined, contempt of court is disobedience of a court by an action in opposition to its authority.” Ex parte Chambers, 898 S.W.2d 257, 259 (Tex. 1995). Contempt of court may be civil or criminal. The purpose of civil contempt is to persuade or coerce the contemnor to obey an order of the court, while criminal contempt has the purpose of punishing the contemnor for some past conduct or disobedience to a court order that constitutes an affront to the dignity and authority of the court. Ex parte Hawkins, 885 S.W.2d 586, 588 (Tex. App.—El Paso 1994, orig. proceeding).

There is no statutory or case law addressing this issue.

A court may utilize either civil or criminal contempt proceeding to impose fines or a jail sentence to compel a reporter to comply with a valid subpoena.

In West Virginia, there is no special exemption for reporters to protect them from contempt holdings for failing to testify. Thus, if a court finds a reporter in contempt of an order compelling the reporter to testify or produce information, the court has available to it the full range of penalties or remedies to impose on the reporter that it could impose on any other person who fails to comply with a valid, upheld subpoena.  However, there are no reported cases where a reporter has been held in contempt for refusing to testify, and the passage of West Virginia’s Reporter’s Privilege statute, W.Va. Code § 57-3-10, likely decreases greatly the chance that such situations will occur.

There is no authority in Wisconsin specifically related to the remedies available to force a journalist to comply with a valid subpoena. Generally, however, the court can resort to the laws of contempt to compel compliance with valid subpoenas. See Wis. Stat. ch. 785.