VII. What constitutes compliance?

Ordinarily a person must first appear for his deposition and then raise any objection to the particular testimony or documentation sought. See Silkwood v. Kerr-McGee Corp., 563 F.2d 433, 437 (10th Cir. 1977). An alternative approach is to request of demand that a deposition be conducted through written interrogatories. See Fed. R. Civ. P. 31. This procedure, which was ordered to be employed by the United States District Court for the District of Colorado in Donohue v. Hoey, Civil Action No. 97-M-2595, allows the reporter's counsel to assert the privilege on a question-by-question basis and permits the Court to determine whether the privilege applies and/or is overcome prior to ordering any response be given.

A reporter complies with a subpoena for testimony in a criminal trial by appearing and giving testimony at the appointed time. Fed. R. Crim. P. 17(a). A reporter complies with a subpoena for documents or other items in a criminal proceeding by producing the subpoenaed materials at the time and in the manner appointed in the subpoena. Fed. R. Crim. P. 17(c). A reporter complies with a subpoena for documents in a civil trial by producing the documents "as they are kept in the ordinary course of business" or in a way "to correspond to the categories in the demand." Fed. R. Civ. P. 45(e)(1)(A). If a subpoena commands only documents or other tangible things, and not testimony, it is not necessary to appear at the hearing or trial. Fed. R. Civ. P. 45(d)(2)(A).

Where a subpoena commands the production of documents, but does not command that an individual appear, e.g. for deposition, in person, then the individual need not appear so long as the documents are produced at the locale and time commanded by the subpoena. Fed. R. Civ. P. 45(c)(2)(A).

Where a subpoena commands an individual to appear at a specified place and time, the individual must appear at that place and time. Fed R. Civ. P. 45(a).

Documents may be produced in response to a subpoena as they are kept in the usual course of business, or organized and labeled to correspond with the categories listed in the subpoena. Fed. R. Civ. P. 45(d)(1).

When claiming that the content of subpoenaed records are privileged, the subpoenaed person must assert the privilege explicitly and describe the assertedly privileged content sufficiently to enable the party responsible for the subpoena to contest the claim of privilege. Fed. R. Civ. P. 45(d)(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.

This section examines what members of the news media must do to comply with a valid, upheld subpoena request.

This section examines what members of the news media must do to comply with a valid, upheld subpoena request.

As a general matter, compliance is determined by reference to the scope of the subpoena, as that scope may or may not be adjusted by the ruling of a court upon a motion to quash or other assertion of privilege. The nature of the compliance may also be determined by agreement between the parties that a production, or testimony, of information less than the actual scope of the subpoena, or subpoena duces tecum, will satisfy the opposing party.

In general, the authentication of evidence is controlled by Me. R. Evid. 901. The rule states that in general a proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is, id. at 901(a), and provides a list of examples of how that can be done. Id. at 901(b). Me. R. Evid. 902 sets forth an exhaustive list of self-authenticated evidence.

Miss. R. Civ. P. 45(e) states:

e) Duties in Responding to Subpoena.

(1) Producing Documents or Electronically Stored Information.

(A) Documents.

A person responding to a subpoena to produce documents shall produce them as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the demand.

(B) Form for Producing Electronically Stored Information Not Specified.

If a subpoena does not specify a form for producing electronically stored information, the person responding must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms.

(C) Electronically Stored Information Produced in Only One Form.

The person responding need not produce the same electronically stored information in more than one form.

(D) Inaccessible Electronically Stored Information.

The person responding need not provide discovery of electronically stored information from sources that the person identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery, motion for a protective order, or motion to quash, the person responding must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(5). The court may specify conditions for the discovery, including those listed in Rule 26(b)(5).

(2) Claiming Privilege or Protection

(A) Information Withheld.

When information subject to a subpoena is withheld on a claim that it is privileged or subject to protection as trial preparation materials, the claim shall be made expressly and shall be supported by a description of the nature of the documents, communications, or things not produced that is sufficient to enable the demanding party to contest the claim.

(B) Information Produced.

If information produced in response to a subpoena is subject to a claim of privilege or of protection as trial-preparation material, the person making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has; must not use or disclose the information until the claim is resolved; must take reasonable steps to retrieve the information if the party disclosed it before being notified; and may promptly present the information to the court under seal for a determination of the claim. The person who produced the information must preserve the information until the claim is resolved.

Compliance with a subpoena means the production of the subpoenaed material or testimony.

In a civil case, a party issuing a subpoena for the production of documents, electronically stored information, or tangible things, must provide parties to the action with notice of not less than 7 days before service of the subpoena to permit a party to object to and seek issuance of a protective order against the subpoena during that time.  NRCP 45(a)(4)(A).  Non-parties who are subpoenaed to produce documents or other materials are not required to be provided specific time to comply, but the rule does require an issuing party to take reasonable steps to avoid imposing undue burden or expense. NRCP 45(c)(1).  Additionally, a subpoena issued to a non-party for the production of documents or for inspection does not require personal attendance. NRCP 45(c)(2)(A)(i).

New York's Civil Practice Law and Rules ("CPLR") § 2305 sets forth the basic compliance requirements for subpoenas seeking testimony (known as subpoenas ad testificandum) and for subpoenas seeking documents or things (known as subpoenas duces tecum) as follows:

§ 2305. Attendance required pursuant to subpoena; possession of books, records, documents or papers

(a) When person required to attend. A subpoena may provide that the person subpoenaed shall appear on the date stated and any recessed or adjourned date of the trial, hearing or examination. If he is given reasonable notice of such recess or adjournment, no further process shall be required to compel his attendance on the adjourned date. At the end of each day's attendance, the person subpoenaed may demand his fee for the next day on which he is to attend. If the fee is not then paid, he shall be deemed discharged.

(b) Subpoena duces tecum; attendance by substitute.

1. A subpoena duces tecum may be joined with a subpoena to testify at a trial, hearing or examination or may be issued separately.

2. Any person may comply with a subpoena duces tecum for a trial, hearing or examination by having the requisite books, documents or things produced by a person able to identify them and testify respecting their origin, purpose and custody.

N.Y. C.P.L.R. 2305 (McKinney).

Accordingly, when a valid testimonial subpoena is issued, the person directed to attend must do so. In contrast, a subpoena for documents or other things is, as the Practice Commentaries to the CPLR note, "deemed complied with as long as the person who shows up with the subpoenaed things can identify them and discuss their 'origin, purpose and custody.'" David D. Siegel, Practice Commentaries, McKinney's Consolidated Laws of New York Ann. Civil Practice Law and Rules § 2305 (b)). Although few New York cases have applied this provision of the CPLR, it appears that the person producing the documents or things must be competent to satisfy all three criteria. See Standard Fruit & Steamship Co. v. Waterfront Comm’n of N.Y. Harbor, 43 N.Y.2d 11, 400 N.Y.S.2d 732 (N.Y. 1977) (corporation failed to comply with subpoena duces tecum issued by government agency investigating use of corporate checks when it merely produced corporate officer who had no knowledge of purpose for which checks were issued); Castro v. Alden Leeds, Inc., 144 A.D.2d 613, 535 N.Y.S.2d 73 (2d Dep't 1988) (corporation failed to comply with subpoena duces tecum served on its vice president, which ordered vice president to produce for trial book describing characteristics of chemicals, when vice president delivered book but immediately left trial court's jurisdiction).

In a civil case, non-parties who are subpoenaed to produce documents must be given at least fourteen (14) days to comply. Utah R. Civ. P. 45(e)(2). Such a non-party need not appear personally at the site at which the documents are to be inspected. Utah R. Civ. P. 45(e)(2).

There are no reported Vermont cases identifying what constitutes compliance with a subpoena for information from a journalist.

There is no authority in Wisconsin addressing what members of the news media must do to comply with a valid subpoena that is not subject to the privilege. Generally, a person must make a good faith effort to comply with any subpoena. See generally Ne. Corp. Ctr. v. Bd. of Review, 610 N.W.2d 511 (Wis. Ct. App. 2000).