F. Published and/or non-published material

In Re/Max Int'l v. Century 21 Real Estate Corp., 846 F. Supp. 910, 911 (D. Colo. 1994) (Babcock, J.), the United States District Court for the District of Colorado held that the First Amendment reporter's privilege extends to non-confidential information (quoting Loadholtz v. Fields, 389 F. Supp. 1299, 1302-03 (M.D. Fla. 1975)). Where the non-confidential information was held not to be centrally relevant to the party's claim (because it was intended to be used only for impeachment purposes), the privilege was not overcome.

Similarly, in Artes-Roy v. City of Aspen, 20 Media L. Rptr. (BNA) 1647 (D. Colo. 1992), a United States Magistrate quashed a subpoena duces tecum seeking production of all files and documents concerning a published article concerning the civil litigation in which the subpoena was issued; although the court did not state whether it was deciding the matter under the First Amendment or Colorado's press shield law, it ruled that the plaintiff had not exhausted alternate sources by deposing all of the parties who were identified in the published article.

In the unpublished decision of Prager v. Campbell Cty. Mem’l Hosp., the United States District Court for the District of Wyoming held that non-published photographs of a public car accident did not qualify for protection.  No. 10-CV-0202-J, 2011 U.S. Dist. LEXIS 160591, *5 (D. Wy. May 18, 2011) (stating “these are pictures, not a reporters interview and/or source material”).

In United States v. Fountain View Apartments, Inc., 2009 WL 1905046, *2 (M.D. Fla. July 1, 2009), the court subdivided the non-published materials into outtakes and notes related and not related to the parties.  It held that those materials that were not related to the parties were not relevant and that while outtakes of parties may be relevant, this factor alone was too speculative to justify compelled disclosure.  Accordingly, the court quashed the subpoena.

However, in United States v. Vasquez-Ortiz, 2008 WL 11449045 (N.D. Ga. Jan. 23, 2008), a Georgia district court declined to reach the issue of whether the First Amendment reporter's privilege shields a television station’s outtakes, because it found that the person seeking the outtakes had overcome any such privilege in any event.  The court, however, noted that other jurisdictions have held that outtakes are not protected.

Sitting in diversity, the Southern District of Georgia applied Georgia’s privilege to quash, in part, a subpoena for documents and unedited footage from the interview of a party, requiring the footage to be submitted for in camera inspection.  Woods v. Georgia Pacific Corp., 2008 WL 11350078 (S.D. Ga. Nov. 4, 2008).

Where the information sought is the identity of a confidential source, the court does not distinguish between published and non-published materials in determining the availability of a qualified reporter’s privilege to protect the source’s identity.

However, where the information sought is non-published, non-confidential materials, the courts do not protect such information as broadly.  In United States v. LaRouche Campaign, the First Circuit noted that when “there is no confidential source or information at stake, the identification of First Amendment interests is a more elusive task.” 841 F.2d 1176, 1181 (1st Cir. 1988).  When outtakes and other non-published materials are requested, courts consider the intrusion on journalists’ editorial discretion, as well as the burden on the media of responding to numerous subpoenas.  Id.  Further, courts are wary of the media becoming “an investigative arm of the government.” Id.  Courts balance these concerns against the rights and interests of the persons requesting the information.  Id.  Whenever possible, courts will conduct in camera reviews of materials before releasing them to the requesting party.  Id.

Whether the material is published or unpublished does not change the test to overcome the privilege in the Second Circuit. Both non-confidential unpublished and published materials receive a qualified privilege. See Gonzales v. National Broadcasting Co. , 194 F.3d at 36 (2d Cir. 1999) (unpublished materials); Von Bulow v. Von Bulow, 811 F.2d 136, 142 (2d Cir. 1987) (acknowledging unpublished resource materials may be protected); SEC v. Seahawk Deep Ocean Tech., Inc., 166 F.R.D. 268 (D. Conn. 1996) (published materials). In Seahawk, the SEC sought to depose a reporter to confirm that one of the defendants in the underlying civil case had made statements printed in a newspaper article. Although the SEC sought published, non-confidential information, the court held that a qualified First Amendment privilege applied. The SEC overcame the privilege and was allowed to depose the reporter.

While publication has been held to waive the privilege under the Pennsylvania state shield law, Steaks Unlimited, Inc., 623 F.2d at 278, courts in the Third Circuit have held that mere publication is not necessarily a waiver of the federal privilege. In re Subpoena to Barnard, 1999 WL 38269, at *3. Publication is, however, a factor that may be weighed in application of the federal privilege balancing test. See, e.g., In re Grand Jury Empanelled Feb. 5, 1999, 99 F. Supp. 2d at 499-500.

The Fourth Circuit reporter’s privilege for published material is largely undeveloped; the state of the law might reflect the fact that subpoenaed reporters and media entities will generally provide published materials without complaint. See Stickels v. Gen. Rental Co., 750 F. Supp. 729, 731, 18 Media L. Rep. 1644 (E.D. Va. 1990), (printed photos of accident are made available to tort defendant); Gilbert, 411 F. Supp. at 507 (published material and tapes of television report are provided to toxic tort defendant). Conflict has arisen, however, when reporters are required to testify in court as to the authenticity of statements made during published interviews. In Shain, the Fourth Circuit did not cite the published nature of the material as a motivation in its affirmation of contempt findings against four reporters; the Court indicated that whether or not the material was published, the reporters had no privilege without a showing of confidentiality or harassment. 978 F.2d at 853. The concurrence, however, expressed concern that requiring a reporter to testify even as to published material might have a chilling effect, inducing reporters to “think twice about conducting exclusive interviews or reporting statements of denial that may be open to question.” Id. at 855 (Wilkinson, J., concurring).

As for unpublished materials, the Fourth Circuit applies its three-part LaRouche test, a fact-based inquiry, to determine whether a reporter or media entity should be required to provide the requested documents or testimony. See, e.g, Ashcraft, 218 F.3d at 287 (reversing contempt order against reporter); Penland, 922 F. Supp. at 1084 (granting motion to quash plaintiff’s subpoena of information surrounding interview of defendant). In Stickels, the district court for the Eastern District of Virginia required the disclosure of unpublished photographs, citing the “unique nature of photos” and their ability to impart especially detailed and credible evidence. 750 F. Supp. at 732. The court also noted that “these particular photos merely preserve images that were so much part of the public domain,” indicating that the privilege would be stronger for unpublished photos of private subjects or subjects of which no other photos have been published. Id.

No Fifth Circuit case has identified any relevant distinction between published and non-published material. See Porter v. Dauthier, No. 14-41, 2014 WL 6674468, at *4 (M.D. La. Nov. 25, 2014) (noting that the Fifth Circuit has not addressed whether unpublished material is protected).  However, the court has indicated that the media's non-confidential work product is less deserving of protection than the identity of a confidential source, especially in a criminal case. United States v. Smith, 135 F.3d 963, 970 (5th Cir. 1998). Turning aside a suggestion to establish a qualified reporter's work-product privilege similar to the attorney work-product privilege, the Court held that, at least in the criminal context, Branzburg provided scant justification for doing so. Smith, 135 F.3d at 969-70. The Smith court also dismissed the media's concerns about being annexed as an investigative arm of the government, the risk of being overburdened by discovery requests, and the resulting incentive for the press to destroy its work product or to hesitate in reporting about criminal matters. See id.

Furthermore, the Smith court reasoned that the risk of chilling confidential sources from approaching the media was not implicated for non-confidential work product, which presumably will involve only the rights of the journalist who creates the non-confidential work product, not those of an informant. See id. at 970. Given this analysis, it remains to be seen whether a privilege exists for work product, even in civil cases, after Smith. Several courts had considered the issue before Smith, with mixed results. Compare Brinston v. Dunn, 919 F. Supp. 240, 244 (S.D. Miss. 1996) (in civil case, upholding privilege for non-confidential, unpublished information obtained by non-party reporter) and Holland v. Centennial Homes, Inc., 1993 WL 755590, at *6, 22 Media L. Rep. 2270 (N.D. Tex. 1993) (in civil case, upholding privilege for non-confidential work product of non-party reporter), with De La Paz v. Henry's Diner, Inc., 946 F. Supp. 484, 485 (N.D. Tex. 1996) (declining to extend privilege to non-party reporter's non-confidential material in a civil matter) and Cinel v. Connick, 792 F. Supp. 492, 498-500 (E.D. La. 1992) (declining to extend privilege to inventory of materials held by media defendants for in camera review).

The federal courts within the Sixth Circuit have not addressed whether the First Amendment would protect the press from compelled disclosure of published information. The only federal decisions upholding First Amendment protection from subpoenas were in civil contexts and applied to the unpublished identities of confidential sources. Southwell v. Southern Poverty Law Ctr, 949 F. Supp. 1303 (W.D. Mich. 1996); NLRB v. Midland Daily News, 151 F.3d 472 (6th Cir. 1998).

Information that has not been published is afforded more protection than information that has been published.

In Bond v. Utreras, No. 04 C 2617, 2006 WL 1806387 (N.D. Ill. June 27, 2006), a federal magistrate held that civil rights defendants could not force a reporter to disclose interview notes or answer questions in a deposition about interviews of residents of a public housing project he was reporting on. Id. at *6 - *7. However, the magistrate did order the reporter to answer questions about his interviews with the plaintiff, because the plaintiff had no legitimate expectation of privacy in those discussions. Id. at *7. The magistrate held that to establish a right to the notes and testimony, the defendants would have to show that the evidence is highly probative of issues relevant to the case and that they don't have the evidence or is it otherwise unavailable to them. Id. at *6. In a later ruling on a motion for reconsideration, the magistrate held that the reporter's deep involvement in the case, including helping the plaintiff find an attorney, meant he could not expect to shield his notes of interviews with her and conversations with her. Bond v. Utreras, No. 04 C 2617, 2006 WL 2494759, at *2 (N.D. Ill. August 23, 2006).

In Patterson v. Burge, No. 03 C 4433, 2005 WL 43240 (N.D. Ill. Jan. 6, 2005), the court quashed the civil rights defendants' subpoena for videotape outtakes reflecting statements by the plaintiff because the defendants had not shown more than mere relevance. Id. at *3. The court held that the press would become "indentured servants" and suffer a loss of independence if forced to respond to subpoenas for non-public records without a showing materiality and that they do not have the information sought and it is not available from other sources. Id. at *2 - *3. The court discussed several justifications for protecting journalists from subpoenas, including time spent responding, revelation of journalistic and editorial judgments, their ability to create sources and a public interest in a robust press. Id. at *3. The court held that videotapes that reflect a journalist's thought processes should be protected like reporter's notes, even if the burden to produce them is not great. Id. at *4.

In Hobley v. Burge, 223 F.R.D. 499 (N.D. Ill. 2004), a federal magistrate quashed a subpoena for reporter's notes of conversations with a civil rights plaintiff, because "[g]iven the important role that newsgathering plays in a free society, courts must be vigilant against attempts by civil litigants to turn non-party journalists or newspapers into their private discovery agents." Id. at 505 (internal citations omitted). The magistrate noted that "[n]othing in McKevitt suggests that a reporter's notes are discoverable in civil litigation simply because the reporter interviewed a party to that litigation." Id. The magistrate stated that research for news articles should be treated like proprietary business information that is protected by Fed. R. Civ. P. 45(c)(3)(B)(i). Id. The magistrate did order production of letters sent by the plaintiff to the reporter because the reporter did not establish that they were sent under an agreement to keep them confidential. Id. at 503-04.

See also these Pre-McKevitt cases: May v. Collins, 122 F.R.D 535, 540 (S.D. Ind. 1988) ("journalists possess a qualified privilege . . . not to disclose unpublished information which was in their possession gathered as a result of the newsgathering process"); United States v. Bingham, 765 F. Supp. 954, 956 (N.D. Ill. 1991) (quashing subpoena for outtakes which did not air, but providing transcript to partying seeking outtakes).

In Thayer v. Chiczewski, 257 F.R.D. 466, 471 (N.D. Ill. 2009) the court quashed part of a subpoena for a reporter’s personal obeservations, but ordered him to produce video footage of anti-war demonstrations.  Id. at 470-71.  The court rejected the argument that the reporter "can provide a unique and valuable perspective" on the protest at which the plaintiff was arrested, leading to the civil rights claims at issue. The Court agreed that the reporter’s "perspective" had no bearing on or relevance to substantive issues in this case.  It limited his deposition to authentication of the relevant video evidence and documents produced.  Id.

In United States v. Hale, No. 03 CR 11, 2004 WL 1123796 (N.D. Ind. April 14, 2004), a federal magistrate denied a motion to quash a subpoena to a reporter to appear at the trial of a criminal defendant he had interviewed. Id. at *2 - *3. The court rejected the argument that a videotape of the reporter interviewing the defendant was an adequate substitute for the reporter's trial testimony. The reporter "was in a unique position, as the interviewer, to observe [the defendant's] demeanor during the interview. The government is under no obligation to forego some evidence from a credible source merely because other sources also may testify to the same matters." Id. at *1. The magistrate held the reporter did not show the government was seeking any confidential material. Id. at * 2.

Similarly, a district court, in a pre-McKevitt case, held that the privilege does not apply to journalists' personal observations. Alexander v. Chicago Park District, 548 F. Supp. 277, 278 (N.D. Ill. 1982) (refusing to recognize the privilege and stating "[a] reporter's observations of a public place or event are no different than that of other individuals; and as to this, they are not entitled to constitutional protection").

The district court in Continental Cablevision held that material characterized as "unpublished information" is privileged, though a lesser showing of need and materiality may be required to overcome the privilege. (See Section 3.E. above—the court arguably treated "unpublished" and "non-confidential" as synonymous). In Nelle, the Southern District of Iowa ordered release of unaired interview footage, stating that the news stations “actions, motive, and intent . . . are integral to the case,” “critical to assessing WHO’s good faith and professionalism,” and “likely to be important to assessing the reliability and trustworthiness of sources for the story . . . a factor central to a media negligence claim.”  2017 WL 7049237, *3.

There is no published case in the Ninth Circuit applying federal law in which a court explicitly differentiates between published and unpublished information. However, in Los Angeles Memorial Coliseum Commission v. National Football League, a district court applied the federal privilege and the California shield law—which protects sources and unpublished information—and noted that “California law and federal common law appear to coincide, both in their application and in their scope.” 89 F.R.D. 489, 492–95 (C.D. Cal. 1981).

Alabama's shield statute, Ala. Code § 12-21-142, specifically states that the privilege applies to "sources of any information procured or obtained by [the reporter] and published in the newspaper, broadcast by an broadcasting station, or televised by any television station . . . ." Ala. Code § 12-21-142 (emphasis added). In Brothers v. Brothers, No.: DR-86-200107, 16 Med. L. Rptr. 1031 (Marshall County, Ala. Cir. Ct., Jan. 9, 1989), the court applied the statute to protect a reporter’s documents, notes and materials relating to an interview she conducted that had been broadcast on television.

The privilege under the First Amendment extends to non-published information acquired in the normal newsgathering process. 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).

Alaska appellate courts have not had occasion to squarely address the existence or scope of a reporter's privilege. Both state and federal trial courts have, however, and have recognized a qualified constitutional reporter's privilege, and quashed subpoenas for unpublished material such as reporter's notes and film outtakes. Trial courts have also quashed subpoenas for testimony, even when unpublished material is not at issue, though as a practical matter the press does not always object to verifying the accuracy of published material.

On its face, the Arizona Shield Law does not differentiate between published and non-published material. Nevertheless, in Bartlett, the intermediate appellate court held that a news report that had been broadcast publicly and shown to the requesting party was not subject to the privilege. 150 Ariz. at 182, 722 P.2d at 350.

The Arizona Media Subpoena Law applies to subpoenas both for published and unpublished material. A person seeking published information from a news organization must aver that he or she has attempted to obtain each item of information sought from "all other available sources, specifying which items the affiant has been unable to obtain." A.R.S. § 12-2214(A)(2). Moreover, the affiant must specify "the identity of the other sources from which the affiant or his representative has attempted to obtain the information." A.R.S. § 12-2214(A)(3). In Arizona, broadcast news stories are often obtainable from third-party commercial news clipping services.

The statute specifically protects sources who provide information for articles that reporters "may have written, published, or broadcast." There are no supreme court cases that discuss whether the privilege extends to articles written but not published or stories produced but not broadcast, or to stories researched but never written or produced. However, the Arkansas Supreme Court has a history of according the media a high level of free-press protections. See, e.g., Butler v. Hearst-Argyle Television, 345 Ark. 462, 49 S.W.3d 116 (2001); Arkansas Democrat-Gazette v. Zimmerman, 341 Ark. 771, 20 S.W.3d 301 (2000); Pritchard v. Times Southwest Broadcasting, 277 Ark. 458, 642 S.W.2d 877 (1982); Arkansas Gazette Co. v. Lofton, 269 Ark. 109, 598 S.W.2d 745 (1980).

California’s reporter’s privilege explicitly protects “any unpublished information.” Cal. Const. art. 1, § 2(b); Cal. Evid. Code § 1070 (emphasis added). Consequently, it has been argued that a reporter can be compelled to testify regarding any information that has been published. One California court held, however, that the prosecution’s right to cross-examine a reporter who was subpoenaed to testify about only published information may require the defendant to satisfy the Delaney test if the cross-examination would elicit unpublished information. See Fost v. Superior Court, 80 Cal. App. 4th 724, 732-33, 95 Cal. Rptr. 2d 620 (2000). The court reasoned that admitting the reporter’s testimony about published information but not about unpublished information could deprive the prosecution of its right to cross-examine the reporter. Id. Consequently, the reporter’s testimony regarding published information will “be barred or stricken” if the defendant cannot meet the Delaney test for disclosing unpublished information that is necessary for full cross-examination. Id. This reasoning also should apply to civil cases, and provide a basis for quashing a subpoena – even one that seeks only published information – if a reasonable cross-examination would necessarily require the reporter to divulge unpublished information.

However, the reporter’s testimony about published material will not always be barred or stricken simply because the Delaney test cannot be overcome. In People v. Vasco, the defendant argued that the reporter’s testimony on published information, introduced by the prosecution, should have been stricken because the defendant could not meet the Delaney threshold test. 131 Cal. App. 4th 137, 158, 31 Cal. Rptr. 3d 643 (2005). The court distinguished Fost, where the prosecution successfully prevented the defendant from relying on published information, on the ground that the prosecution was not permitted to obtain unpublished information from the reporter even if it was material to the prosecution. Instead, in the underlying case, the court noted that the defendant – who was seeking unpublished information in response to the prosecution’s use of published information – was unable to meet his burden of proof under the Delaney test. Thus, analyzing “how Delaney and Miller [v. Superior Court, 21 Cal. 4th 883, 986 P.2d 170, 89 Cal. Rptr. 2d 834 (1999)] affect the respective parties’ rights and interests,” the court rejected defendant’s reliance on Fost. Vasco, 131 Cal. App. 4th at 158. The court reasoned that “if defendant fails to show a reasonable possibility the undisclosed information will materially assist the defense, it follows that defendant has no right to elicit unpublished information on cross-examination and therefore does not suffer prejudice in the same manner as the prosecution when it is denied cross-examination on issues crucial to its case.” Id. at 158-59. In other words, if the unpublished information was of material assistance, the defendant would have been able to overcome the Delaney test. However, because the unpublished information was not of material assistance to the defense, the defendant was not prejudiced by the court’s refusal to permit testimony regarding the unpublished information or to strike the reporter’s testimony regarding the published information. The court noted that other interests, such as defendant’s right to test the credibility of a witness, may justify striking that witness’s testimony. However, because “any conceivable error was harmless beyond a reasonable doubt” the court did not address the issue there. Id. at 159.

In addition, relying on the plain language of the statute, the courts have strictly construed what it means for information to be “published.” For example, in In re Howard, 136 Cal. App. 2d 816, 289 P.2d 537 (1955), the Court of Appeal held that the publication of an article containing attributed quotations did not deprive the author of his right to decline to answer whether he ever had a conversation with the purported source when that specific information was not contained in the article. “[I]n the absence of any showing other than the published news story,” the court reasoned, the reporter had not disclosed the source of the published information. Id. at 819. As the court explained:

It cannot be assumed from the use of quotation marks that the statement attributed to [the source] was made directly to the petitioner. As [petitioner] notes, his information could have been secured in many ways; that is, . . . he might have learned of [the source’s statements] from another person; he might have received his information from a printed press release; he might have listened to a recording of the speech; or the story might have been telephoned to his newspaper and rewritten by someone else under his by-line.

Id.; see also Playboy Enters., Inc. v. Superior Court, 154 Cal. App. 3d 14, 23-24, 201 Cal. Rptr. 207 (1984) (requested “material falls squarely within the ambit of Article I, Section 2 protection whether the published information is an exact transcription of the source material or paraphrases or summarizes it”); Shaklee Corp. v. Gunnell, 110 F.R.D. 190, 192-93 (N.D. Cal. 1986) (shield law protects documents obtained by reporter in addition to documents prepared by reporter).

The Colorado Press Shield Law protects non-published information, but provides no privilege regarding information that has been published. "[T]he privilege of nondisclosure shall not apply to … (b) News information which has actually been published or broadcast through a medium of mass communication." C.R.S. § 13-90-119(2)(b).

The issue of published information was addressed in People v. Morise, 859 P.2d 247 (Colo. App. 1993), although the court did not determine whether the subpoenas had been properly quashed under the Shield Law. In Morise, the Colorado Court of Appeals reversed a criminal conviction based on the admission into evidence of the defendant's statements contained in newspaper articles about the defendant. The trial court had previously quashed subpoenas served on reporters who wrote the articles in question. The court held that the articles themselves were inadmissible hearsay. Under this ruling, it is possible that a reporter may not be permitted to assert the privilege if their testimony is necessary to establish that a statement reported in an article was actually made or that the article accurately reflected a source's specific statement.

The Shield Law applies to both published and non-published material, prohibiting compulsory process of “any information obtained or received, whether or not in confidence, by the news media in its capacity in gathering, receiving or processing information for potential communication to the public.” It also provides that publication of information “shall not constitute a waiver of the protection from compelled disclosure provided in said subsection with respect to any information that is not published or disseminated.”

In this Circuit, the reporter’s privilege protects not only the sources of a reporter’s information, but also a reporter’s notes, diaries, and any other material generated in connection with the editorial process.  Maughan v. NL Indus., 524 F. Supp. 93, 95 (D.D.C. 1981) (compelling reporter to produce material such as personal notes constitutes a “significant intrusion into and certainly a chilling effect upon the newsgathering and editorial process,” and thus “compelled production of such materials is equally as invidious as the compelled disclosure of . . . confidential informants”) (internal marks omitted); Palandjian v. Pahlavi, 103 F.R.D. 410 (D.D.C. 1984) (same).

Concurring in the judgment in In re Miller, 397 F.3d 964 (D.C. Cir. 2005), opinion superseded by 438 F.3d 1141 (D.C. Cir. 2006), Judge Tatel refused to assign any importance to the fact that the reporters there did not reveal the information obtained from the confidential source, the identity of which was sought by the Special Counsel investigating the leak of classified information involving the identity of a CIA covert agent.  As Judge Tatel explained:

Narrowly drawn limitations on the public’s right to evidence, testimonial privileges apply only where necessary to achieve [their] purpose, and in this case the privilege’s purpose is to promote dissemination of useful information.  It thus makes no difference how these reporters responded to the information received, any more than it matters whether an attorney drops a client who seeks criminal advice (communication subject to the crime-fraud exception) or a psychotherapist seeks to dissuade homicidal plans revealed during counseling (information Jaffe suggested would not be privileged).  In all such cases, because the communication is unworthy of protection, recipients’ reactions are irrelevant to whether their testimony may be compelled in an investigation of a source.

Id. at 1003 (Tatel, J., concurring in the judgment) (citations and internal marks omitted).

Delaware's privilege applies equally to published and non-published materials. See Fuester v. Conrail, 22 Media L. Rep. (BNA) 2376 (Del. Super.1994) (quashing subpoena for both published and unpublished photographs); State v. McBride,  Nos. IK-80-5-0058, IK-80-5-0059 and IK-80-06-0227, Wright, J. (Del. Super. May 6, 1981), affirmed on other grounds, 477 A.2d 174 (Del. 1984) (quashing subpoena for unpublished letters sent to a reporter).

The District’s shield law absolutely protects testimony about sources’ identities regardless of whether that information has been published.  Grunseth v. Marriott Corp., 868 F. Supp. 333, 336 (D.D.C. 1994) (noting that the law “accords total protection to news sources, whether confidential or not, and whether disclosed to others or not”); Prentice v. McPhilemy, 27 Med. L. Rptr. 2377, 2381 (D.C. Super. Ct. 1999) (same); D.C. Code § 16-4702.  Non-published news or information other than sources is protected by qualified privilege under the District’s shield law.  Grunseth, 868 F. Supp. at 336; Prentice, 27 Med. L. Rptr. at 2381; D.C. Code §§ 16-4702, 4703.

Application of the privilege is not dependent upon whether the information is published. In fact, the statute explicitly recognizes a privilege exists even in material that is published or broadcast. § 90.5015(4), Fla. Stat. (2023).

Publication of information waives the privilege with respect to the published article or broadcast itself but does not waive the privilege with respect to non-published material. See, e.g., In re Paul, 270 Ga. 680, 686, 513 S.E. 2d 219, 224 (1999) (“Contrary to the State's contention, publication of part of the information gathered does not waive the privilege as to all of the information gathered on the same subject because it ‘would chill the free flow of information to the public.’”). See also CSX Transportation v. Cox Broadcasting, Inc., No. E-59240 (Fulton County Superior Court, May 29, 1997) (denying and dismissing action in equity by CSX Transportation seeking discovery of raw, non-broadcast videotape taken by local television stations at scene of train accident, finding that the tape was privileged and CSX could not make the showing required by the statute to justify compelling the discovery sought).

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

See discussion in regard to paragraph III, D above.

On its face, the Statute does not distinguish between published and non-published material. In People v. Slover, the court interpreted the Statute as granting a qualified privilege against disclosure for even unpublished photographs taken by members of the media. 323 Ill. App. 3d 620, 624, 753 N.E.2d 554, 558 (2001). There, a murder defendant sought a subpoena to compel production of unpublished newspaper photographs that depicted search warrants being executed. Id. at 622, 753 N.E.2d at 556. The court held that a photograph is a “source” of information under the plain meaning of the Statute even if the photo does not depict the identity of a person who is a news source. See also People ex. rel. Scott v. Silverstein, 89 Ill. App. 3d 1039, 1043, 412 N.E.2d 695 (1980) (“The compelled production of a reporter’s resource materials is equally as invidious as the compelled disclosure of his confidential informants”); Simon v. Northwestern Univ., 321 F.R.D. 328, 332, 45 Media L. Rep. 1961 (N.D. Ill. 2017) (“audio and visual data, notes, drafts, and transcribed interviews gathered by” filmmakers in creation of documentary were “the source from which [documentary] was created” and covered by statute); Kelley v. Lempesis, No. 13-cv-4922, 2015 WL 4910952 (N.D. Ill. Aug. 17, 2015) (quashing subpoena for unpublished outtakes); Reitz v. Gordon, 26 Media L. Rep. 1447 (N.D. Ill. 1997) (quashing subpoena because unpublished photographs were not shown to be sufficiently necessary to the parties).

 

Illinois trial courts have repeatedly applied the Statute’s protections to video outtakes and other unpublished source materials.  See, e.g., People v. Goldman, 34 Media L. Rep. 2310 (Ill. Cir. Ct. 2005) (quashing subpoena in criminal case for video outtakes of interview with defendant); Smith v. Advocate Health Care Network, 33 Media L. Rep. 1752 (Ill. Cir. Ct. 2004) (video outtakes were no different than unpublished photographs and therefore qualified for protection under Statute); Dunn v. Hunt, 31 Media L. Rep. 2245 (Ill. Cir. Ct. 2003) (declining to compel production of unaired film footage because Statute “protects compelled disclosure of resource materials and information gathered by a journalist”); McCabe v. Greager, 27 Media L. Rep. 1702 (Ill. Cir. Ct. 1999)  (video outtake was considered a source under the Statute regardless of whether it was confidential or that it was only an outtake).

The Indiana shield law protects “the source of any information ... whether (1) published or not published . . . or (2) broadcast or not broadcast.” Ind. Code § 34-46-4-2.

Iowa cases protect unpublished information, including non-broadcast video and reporter's notes, from compelled disclosure. The same test utilized in a confidential source case is used to determine whether the reporter's privilege should be subordinated so that the journalist would be compelled to disclose unpublished information and provide copies of his/her notes and non-broadcast video. Specifically, in Bell v. City of Des Moines, 412 N.W.2d 585, 14 Med. L. Rptr. 1729 (Iowa 1987), the Court reversed a lower court order compelling a television station news director to provide raw footage of a suicide. The court sustained an order requiring the preservation of the video footage and reaffirmed the Lamberto disclosure requirements. In Waterloo/Cedar Falls Courier and Lamberto, the reporter’s privilege applied to both reporters’ unpublished notes and non-broadcast video footage. However, in Nelle v. WHO Television, LLC, No. 4:17-cv-107, 2017 WL 7049237, *3 (S.D. Iowa Dec. 20, 2017), the Court ordered the television station to produce unaired video interviews to the Plaintiff because the “segments [were] necessary to his [libel] claims.”

Although the Kansas shield law has yet to be definitely construed by the Kansas appellate courts, the author believes it unlikely that Kansas courts will interpret the law as extending protection with respect to published information.  K.S.A. 60-482(a) states that:

A journalist may not be compelled to disclose any previously undisclosed information or the source of any such information procured while acting as a journalist until the party seeking to compel the disclosure establishes by a preponderance of the evidence in district court that the disclosure sought:

(1)  Is material and relevant to the proceeding for which the disclosure is sought;

(2)  could not, after a showing of reasonable effort, be obtained by readily available alternative means; and

(3)  is of a compelling interest.

K.S.A. 60-482(a) (emphasis supplied).

Moreover, applying a privilege with respect to published information would appear to be contrary to the provisions in both the Kansas and federal rules of evidence regarding waiver. See K.S.A. 60-437 and Federal Rules of Evidence § 501.

The Kentucky statute protects only the sources of published information. KRS  421.100; see also Lexington Herald-Leader v. Beard, 690 S.W. 2d 374 (Ky. 1984). Kentucky’s appellate courts, however, have not addressed this issue under the statute.

The Fifth Circuit refused to recognize a non-confidential work product privilege for untelevised interview footage in U.S. v. Smith, a criminal case. 135 F.3d at 969.

The Louisiana First Circuit Court of Appeals has held that the shield law is not limited to published information. "While the statute limits the privilege to the identity of informants and the source of information, it does not restrict the privilege to identity of informants and sources of information published." Dumez, 341 So.2d at 1208. Furthermore, Section 1459, added to the statute in 1989, explicitly provides for a qualified privilege for "news which was not published or broadcast but was obtained or prepared by such person in the course of gathering or obtaining news." La. R.S. 45:1459(B)(1).

There is no privilege for published material.  The privilege afforded by the shield law statute is waived "if the journalist voluntarily discloses or consents to disclosure of the protected information." 61 M.R.S.A. § 16(4).

In State v. Hohler, 543 A.2d 364, 365, 15 Media L. Rep. 1611 (1988), the Court refused to recognize any "qualified privilege for a reporter to refuse to testify concerning non-confidential, published information obtained from an identified source." (emphasis added). Although that holding was narrowly tailored to the facts of Hohler, the Court’s repeated emphasis on the information’s previous publication leaves little doubt that published information will not be considered privileged in future cases.

Md. Cts. & Jud. Proc. Code Ann. § 9-112(c)(2)(i) - (vi) -- The Shield Law qualifiedly protects against compelled disclosure of "[a]ny news or information procured by the person while employed by the news media or while acting as an independent contractor of the news media, in the course of pursuing a professional activity, or any news or information procured by the person while enrolled as a student, in the course of pursuing a scholastic activity or in conjunction with an activity sponsored, funded, managed, or supervised by school staff or faculty, for communication to the public but which is not so communicated, in whole or in part, including: (i) [n]otes; (ii) [o]uttakes; (iii) [p]hotographs or photographic negatives; (iv) [v]ideo and sound tapes; (v) [f]ilm; and (vi) [o]ther data, irrespective of its nature, not itself disseminated in any manner to the public." (emphasis added).

Md. Cts. & Jud. Proc. Code Ann. § 9-112(e) -- Waiver -- "If any person described in subsection (b) of this section disseminates a source of any news or information, or any portion of the news or information procured while pursuing an activity described in subsection (b) of this section, the protection from compelled disclosure under this section is not waived by the person." Subsection (b) describes the covered persons and activities as those 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.  § 9-112(b).

There does not appear to be any case law discussing whether material that has been published or broadcast is covered by the reporter's privilege. Unpublished materials may be covered when a balancing of interests favors nondisclosure. See Astra USA, Inc. v. Bildman, 13 Mass. L. Rep. (Mass. 2001) (A reporter spent six months investigating claims of sexual harassment in a company. The court did not afford any special protection to documents exchanged between the reporter and the company that were not published as part of the resulting article.). See also Petition for the Promulgation of Rules, 479 N.E.2d 154 (Mass. 1985).

The two statutory privileges against subpoenas on reporters only apply to non-published information. See MCL 767.5a; MCL 767A.6(6). Thus, subpoenas for published information are difficult to quash.

However, Michigan has a rule of evidence which makes newspaper articles self-authenticating. See MRE 902(6). This means it is not necessary for the reporter to appear to establish that the article in fact appeared in the newspaper. Michigan Rule of Evidence 902(6) provides:

Extrinsic evidence of authenticity [that is to say, an editor or reporter or photographer testifying, "Yes, we published that story or photograph"] as a condition precedent to admissibility is not required with respect to . . . printed materials purporting to be newspapers or periodicals.

This reduces the opportunity for parties to question the reporter on related matters.

There is no statutory protection that applies if the material at issue is published. Cf. MCL 767A.6(6) (providing statutory protection for unpublished materials only). Generally, parties attempt to limit the scope of the examination of the reporter about the published material.

Minnesota's statutory privilege does not extend to published or broadcast material. In some cases, the published or broadcast status of particular information could be disputed. If so, a court determination that publication or broadcast has occurred could affect rights on appeal. The statute provides, "Where the court finds that the information sought has been published or broadcast, there shall be no automatic stay unless an appeal is filed within two days after the order is issued." Minn. Stat. § 595.024 subd. 3.

In an unpublished order in United States v. Ford, Crim. No. 4-92-112 (D. Minn. 1992), the court quashed a criminal defendant's subpoena against two newspapers that sought copies of "all articles" that had appeared in the newspapers over a three-week period relating to the shooting of a police officer and "relating to racial tensions stemming from the shooting." The court held that the defendant's attorney could find the articles through her own research, and that it was improper to shift that burden to the newspapers. It stated,

Appearances by the newspapers are not necessary to authenticate the articles, to the extent they have evidentiary value. Fed. R. Ev. 902(6). Insofar as defense counsel seeks to have the newspapers make the search and selection concerning the articles, the subpoenas shift the burden of trial preparation from defense counsel onto the newspapers; no matter what the extent of the newspapers' resources may be relative to the criminal defendant, this sort of burden-shifting is an unfair imposition upon innocent third-parties.

See J. Borger, Resisting Subpoenas for Published or Broadcast Information, 12 Commc'ns Lawyer, Spring 1994, at 10 (ABA). With the ready availability to the public of media databases, this reason for quashing subpoenas for published information has become even more compelling.

Parties to a lawsuit or criminal proceeding might seek a reporter’s testimony to authenticate quotations or information attributed to a named source in a published report. Published information is not protected by the Minnesota statutory privilege, but compelling a reporter to testify against a named source (who denies making the published statement) nevertheless could be unduly burdensome, both in terms of time, in terms of creating an impression that the reporter is taking sides in the litigation, and in creating a risk of cross-examination questions that would impinge on privileged material. This burden can be minimized if the parties agree (with or without encouragement from the court) to stipulate that “if called to testify, the reporter who wrote this story would say that X said as follows.” See United States v. Carlson, 41 Med. L. Rptr. 2767 (D. Minn. Sept. 16, 2013); Stipulation and Order Limiting Testimony of Reporter Paul McEnroe, State v. Buie, No. XX-94-335, Ramsey Cty., Minn., Dist. Ct., dated June 6, 1994.

In Brinston v. Dunn, the federal district court held that "it was contrary to law to compel [the reporter] to disclose unpublished information obtained in the course of writing the article without weighing the relative interests of the defendant against potential infringements on the protection afforded to the press by the First Amendment." 919 F. Supp. 240, 244 (S.D. 1996) (emphasis added). The trial court in City of Jackson v. Crawford upheld the qualified privilege of a news photographer from divulging "unpublished news photographs." Municipal Court of Jackson, Mississippi, No. 88-0219 (May 20, 1988). No other opinion from the federal district courts of Mississippi or the selected trial court opinions discuss the applicability of the qualified privilege to unpublished information.

As stated above in the Classic III case, the privilege applies to non-published material as well as published material. 954 S.W.2d at 654.

Montana's law does not differentiate between published material and material that has not been published. In the Tracy case, supra, the court denied the prosecutor's access to Linda Tracy's film outtakes.

While the protection for non-published material is absolute, a reporter can be compelled to testify regarding material which has been published or broadcast. See Neb. Rev. Stat. §§ 20-146(2) and 20-145(5).

NRS 49.275 protects both published and unpublished materials.

There has only been one case holding that published, non-confidential material was not subject to the reporter’s privilege.  State v. Gibson, 170 N.H. 254.

A reporter may waive the privilege, but a partial waiver is not construed to be a total waiver and publication in a newspaper or news broadcast does not constitute a waiver.  In re Schuman, 114 N.J. 14 (1989). The Shield Law “not only covers all information received during the newsgathering process, but also information that is published in a news periodical, whether or not the source is confidential.”  In re Venezia, 191 N.J. at 271.  In fact, under the Shield Law, “a news reporter generally can refuse to disclose in a legal inquiry any information concerning a published news article.”  Id. at 262.

The statute protects only “unpublished” material. The rule of evidence protects only “confidential” information, which is apparently either the same thing as “unpublished” material or else a subset of it. Only Rule 23-107(H) seems to extend to images and sound recordings that are actually broadcast. See supra pt. III(E); infra pt. III(G).

Once information has been published, the privilege is waived with respect only to the specific information that has been "exposed to view." See Civ. Rights § 79-h(g); People v. Troiano, 127 Misc.2d 738, 486 N.Y.S.2d 991, 994 (1985) ("The statute . . . cannot be used as a shield to protect that which has already been exposed to view") (quoting People v. Wolf, 39 A.D.2d 864, 333 N.Y.S.2d 299 (1st Dep't 1972)). Accordingly, courts have held that the privilege does not extend to mere authentication of what has already been published. See People v. Smith, 30 Med. L. Rptr. 1671 (N.Y. Sup. Ct. Oneida Cty. 2002) (quashing subpoena seeking nonconfidential information but permitting testimony of journalist for sole purpose of verifying certain published quotes); In re Grand Jury Subpoena Dated Jan. 26, 2000, 269 A.D.2d 475, 703 N.Y.S.2d 230 (2d Dep't 2000) (holding that there is no basis to invoke even the qualified privilege for nonconfidential material when the information sought was only an authentication that the broadcast or published reports were accurate); In re Pennzoil Co., 108 A.D.2d 666, 485 N.Y.S.2d 533 (1st Dep't 1985).

The qualified privilege applies to all unpublished material from nonconfidential sources, but it may be overcome by a clear and specific showing that the materials are highly material and relevant, critical or necessary to the maintenance of a party's claim or defense, and not obtainable from alternative sources. Civ. Rights § 79-h(c); see also People v. Combest, 4 N.Y.3d 341, 795 N.Y.S.2d 481 (N.Y. 2005) (compelling production of video recording of defendant's confession and police interrogation, where defendant established that the tape was highly relevant, critical to his defense, and not obtainable from any other source); United Auto Group v. Ewing, 34 Med. L. Rptr. 1801 (S.D.N.Y. 2006) (outtakes must be "critical or necessary" to defense, not merely "useful").

Courts have held that such materials include: outtakes of nonconfidential broadcasts, research files used in compiling newspaper articles, corporate documents, materials and information given to a television journalist by a source, notes, records and videotapes taken at criminal interrogations, and material relating to an investigative report that never aired. See, e.g., Application to Quash Subpoenas to NBC, 79 F.3d 346 (2d Cir. 1996) (quashing subpoena for outtakes of interview with plaintiff in wrongful death suit after three-part test not met); People v. Hendrix, 12 Misc.3d 447, 820 N.Y.S.2d 411 (N.Y. Sup. Ct. Kings Cty. 2006) (quashing subpoena seeking outtakes from reality television show about police department where defendants conceded they could not satisfy the three-prong test in § 79-h); Grand Jury Subpoenas Served on NBC, 178 Misc.2d 1052 (N.Y. Sup. Ct. N.Y. Cty. 1998) (outtakes of protest demonstration where police officers were assaulted ordered produced after three-part test met); Flynn v. NYP Holdings, Inc., 235 A.D.2d 907, 652 N.Y.S.2d 833 (3d Dep't 1997) (research files used in compiling allegedly defamatory article); Brown & Williamson Tobacco Corp v. Wigand, 228 A.D.2d 187, 643 N.Y.S.2d 92 (1st Dep't 1996) (subpoena for documents and other materials given by defendant to a non-party television journalist quashed where plaintiff failed to meet "critical or necessary" element of test); In re Sullivan, 167 Misc. 2d 534, 635 N.Y.S.2d 437, 441 (N.Y. Sup. Ct. Queens Cty. 1995) (subpoena for notes, records and video concerning a criminal interrogation upheld where three-part test met); Ayala, 162 Misc.2d 108 (subpoena seeking videotaped interview with arresting officer quashed where "critical or necessary" element not met); In re Grand Jury Subpoenas to Maguire, 161 Misc.2d 960, 615 N.Y.S.2d 848 (Westchester Cty. Ct. 1994) (subpoena seeking outtakes of television interview where interviewee confessed to murder quashed where "critical or necessary" element not met); In re Armstrong, 26 Med. L. Rptr. 1700 (N.Y. Sup. Ct. NY Cty. 1997) (subpoena seeking unpublished tapes of interviews and related notes for "60 Minutes" investigation on sports cars quashed where plaintiff failed to establish that materials were otherwise unavailable).

The shield law does not distinguish between material that has been published and material that has not, and the privilege extends to "any confidential or non-confidential information, document, or item obtained or prepared while acting as a journalist." N.C. Gen. Stat. § 8-53.11(b). A North Carolina trial court has quashed a subpoena in a civil matter seeking a copy of an interview broadcast over the radio, where the party who issued the subpoena could not establish that it had exhausted alternate sources for the information contained in the interview or that the information sought was essential to its case. State v. McLeod Oil Co., 34 Media L. Rep. 1703 (N.C. Superior Ct. 2006).

The plain language of the statute does not make a distinction between published and non-published material. However, in Grand Forks Herald v. Dist. Court in and for Grand Forks Cnty., 322 N.W.2d 850 (N.D. 1982), the North Dakota Supreme Court stated that because the plaintiff sought discovery on a group of photographs of which one had already been published, then it was unlikely that disclosure would cause a chilling effect on First Amendment rights. Publication is another likely factor in determining whether nondisclosure would result in a miscarriage of justice.

The constitutional protection has been held to cover non-published/non-broadcast information (e.g., reporters' notes, drafts, outtakes) even if no confidential source is involved. See e.g., Fawley v. Quirk, 9th Dist. Summit No. 11822, 1985 WL 11006, 11 Med.L.Rptr. 2336 (July 17, 1985); State v. Hamilton, Montgomery C.P. No. 85-CR-2418, 12 Med.L.Rptr. 2135 (May 6, 1986).

In a wrongful death action, a newspaper and photographer moved to quash subpoenas to produce unpublished photographs taken of an accident scene. The court granted the motion stating that the qualified privilege applies to unpublished news photographs and offers more protection in civil cases. Slagle v. Coca Cola, 30 Ohio Misc.2d 34, 507 N.E.2d 794 (Montgomery County C.P. 1986).

The plaintiff moved to compel disclosure of outtakes and reporters' notes in a defamation action against a news station for broadcasting the arrest of plaintiff for drunk driving after which plaintiff was never charged. After in camera review of the material, the trial court granted plaintiff's motion to compel disclosure. The court of appeals declined to rule on the constitutional issues, finding that the determination of whether a qualified privilege existed depended upon a balancing of interests lying within the discretion of the trial court. Since no transcript existed of the in camera review, the court refused to find an abuse of discretion in the trial court's order to compel production of the material. Schreiber v. Multimedia of Ohio, Inc., 41 Ohio App. 3d 257, 535 N.E.2d 357 (1st Dist. 1987).

The statute expressly covers all unpublished information, which includes all “information not disseminated to the public by the person from whom disclosure is sought, whether or not related information has been disseminated.”  Unpublished information is defined to include “all notes, outtakes, photographs, tapes or other data of whatever sort not itself disseminated to the public through a medium of communication.”

The privilege in Oregon specifically protects all unpublished information and additionally the sources of any information, whether or not published. ORS 44.520(1), (2).

1. Shield Law

The Pennsylvania Shield Law does not protect published material. See, e.g., Commonwealth v. Bowden, 838 A.2d 740 (Pa. 2003) (privilege limited to non-published, confidential source information). The privilege does not cover information that is “actually published or publicly disclosed . . . .” In re Taylor, 193 A.2d 181, 186 (Pa. 1963).

2. First Amendment privilege

The First Amendment privilege applies to all information, including published information. The privilege protects reporters from having to testify to verify the accuracy of published material. McMenamin v. Tartaglione, 590 A.2d 802, 811 (Pa. Commw. 1991) (where, based on First Amendment, court refused to compel reporter’s testimony to verify that candidate made statements at press conference that were part of a television news report), aff’d without op., 590 A.2d 753 (Pa. 1991); see also Commonwealth v. Farley, 27 Med. L. Rep. 1544 (Jefferson Cty. C.C.P. Jan. 12, 1999) (quashing subpoena and holding that First Amendment reporter’s privilege applies to published material sought by the Commonwealth). Elsewhere, however, the Pennsylvania Superior Court has stated, without citation to authority, that “[p]ublished materials are neither protected by the Shield Law nor privileged under the First Amendment.” Davis v. Glanton, 705 A.2d 879, 887 (Pa. Super. 1997) (actual published articles not protected by First Amendment privilege).

The privilege specifically does not apply to "any information which has at any time been published, broadcast, or otherwise made public by the person claiming the privilege." R.I. Gen. Laws § 9-19.1-3(a). The material must be confidential. See also, e.g., Outlet Communications, Inc. v. State, 588 A.2d 1050 (R.I. 1991).

The privilege applies with equal force to published and unpublished material, and provides that publication is not a waiver of the qualified privilege.

The privilege articulated in Hopewell specifically protects the identity of a confidential informant under certain circumstances. The South Dakota Supreme Court has not specifically addressed this issue.

The Tennessee shield law protects both published and unpublished information, so long as the information was "procured for publication or broadcast," Tenn. Code Ann. § 24-1-208(a); State v. Shaffer, No. 89-208-II, 1990 WL 3347,1990 Tenn. App. LEXIS 21, 17 Med. L. Rptr. 3347 (Tenn. Ct. App. 1990).

The civil section of the shield law does not distinguish between published and unpublished materials. See Tex. Code. Civ. P. §22.023. The criminal section does. See Tex. Code Crim. Proc. art. 38.11, §§5 and 8. With regard to unpublished materials (i.e., work product) in the criminal setting, the subpoenaing party must make a clear and specific showing that: (1) all reasonable efforts have been exhausted to obtain the information from alternative sources; and (2) the information sought is relevant and material to the proper administration of the official proceeding and is essential to the maintenance of a claim or defense of the person seeking the information or the information sought is central to the investigation or prosecution of a criminal case and based on something other than the assertion of the person requesting the subpoena, reasonable grounds exist to believe that a crime has occurred. Tex. Code Crim. Proc. art. 38.11, §5(a). The court should also consider several other factors including the reasonableness, timely notice, the balancing of interests involved and the speculative nature of the subpoena when considering an order to compel testimony. Tex. Code Crim. Proc. art. 38.11, §5(b).

Published materials are not covered by the statute so one would look to common law with regard to those materials. Tex. Code Crim. Proc. art. 38.11, §8. Under common law, in the criminal setting, courts have not been very supportive of a privilege regardless of whether the material has been published or not. See, e.g., Ex Parte Grothe, 687 S.W.2d 736 (Tex. Ct. App. 1984) (finding no privilege to withhold evidence in criminal prosecution); State ex rel. Healey v. McMeans, 884 S.W.2d 772 (Tex. Crim. App. 1994) (en banc) (finding no newsman’s privilege for reporters called to testify in criminal proceeding); United States v. Smith, 135 F.3d 963, 970 (5th Cir. 1998) (finding no reporter’s privilege for un-broadcast material sought in criminal proceeding).

Some advocates have argued that unpublished material should be protected as proprietary information or trade secrets, but there have been no opinions directly ruling on that issue.

Rule 509 does not specifically address published information. It does, however, provide a qualified privilege for both confidential and other unpublished news information. Under this rule “confidential unpublished news information” is defined to mean “information, other than confidential source information, that is gathered by a news reporter on condition of confidentiality. This includes notes, outtakes, photographs, tapes or other data that are maintained by the news reporter or by the organization or entity on whose behalf the reporter was acting to the extent such records include information that was provided on condition of confidentiality.” Id. 509(a)(3). “Other unpublished news information” is defined to mean “information, other than confidential unpublished news information, that is gathered by a news reporter. This includes notes, outtakes, photographs, tapes or other data that are maintained by the news reporter or by the organization or entity on whose behalf the reporter was acting.” Id. 509(a)(4).

Prior to the implementation of this rule, one Utah trial judge suggested that unpublished information should be afforded greater protection than published information. That judge's memorandum decision stated that “[r]eporters will not be compelled to testify” as to unpublished information. State v. Halvorson, No. 001500343 (Utah 5th Dist. Ct. Oct. 13, 2000). In that case, the program “20/20” had broadcast portions of a tape sought by a county prosecutor. The tape allegedly contained the operative criminal act in the case of two men charged with practicing medicine without a license for drilling a hole in a woman's skull in a New Age procedure called trepanation. The trial court rejected a claim by ABC News that a reporter's testimony and portions of a video outtake were unpublished. Although the judge refused to quash the subpoena, the issue became moot before the reporter testified because the defendants entered guilty pleas and thus avoided trial.

The Vermont Shield Law does not draw a distinction between published and non-published material.  See 12 V.S.A. § 1615(a)(2) (applying “whether or not the news or information is ultimately published or distributed”).

The privilege has been applied to both published and non-published material, although federal courts in Virginia have held that, at least in the context of criminal cases, the privilege only applies where confidential information is involved.  See, e.g., United States v. Lindh, 210 F. Supp. 2d 780, 783 (E.D. Va. 2002) (holding that the privilege only applies “where the journalist produces some evidence of confidentiality or government harassment”); United States v. King, 194 F.R.D. 569, 584 (E.D. Va. 2000) (holding that the privilege applies only when “both confidentiality of the source material and vexation or harassment is demonstrated by the record”).

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

Section 4 of the Shield Law provides that publication or dissemination of information does not constitute a waiver of the privilege. See RCW 5.68.010(4).

The Hudok court held that the privilege applies equally to published and unpublished information. Thus, whether or not the material sought by subpoena has been published, the Hudok test applies with equal force, and the party seeking to compel the information in a civil case generally must show "clearly and specifically" that the confidential 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. Thus, the burden on a party in a civil case seeking information from a non-party reporter, whether the information is published or unpublished, although not absolute, is equally strong and protective.

Wisconsin’s shield law applies whether or not the information is published.  If protected information is disclosed to another person or disseminated to the public, that “does not constitute a waiver of the protection from compelled disclosure” afforded by the shield law.  Wis. Stat. § 885.14(4).

Wyoming has no statutory or reported case law in this area.