Note: The following discussion is provided only as background information. Recognize that assertion of any of these grounds requires formal proceedings and careful analysis of the newspaper's overall position on the matter by the newspaper and its attorneys.

For example, challenging a subpoena where there is no chance of success may do more harm than good by creating a bad precedent for future cases. In other situations, the paper may elect to seek a protective order limiting the scope of testimony or documents, even if the reporter will ultimately be compelled to testify.

In general, the proper grounds for challenge and the likelihood of success are determined by which of five categories of proceeding and information is involved:

1. Authentication of Published Material: A news report or photograph is not, by itself, evidence of the facts reported or depicted. Therefore, an attorney seeking to prove the truth of those facts may try to subpoena the reporter or photographer to testify to the details. On the surface, this would normally involve only testimony that the reporter or photographer was present at the scene and that the report or photograph is an accurate representation of what he or she observed.

In practice, however, the opposing attorney may well wish to cross-examine you on the issue of accuracy, which tends to lead to further subpoenas for background notes, unused photographs, etc. Under some circumstances, this type of subpoena may be challenged under the basic test described below.

Where an inquiry regarding published photographs is involved, successful challenge is much less likely, and the newspaper's lawyer may be able to strike a compromise with the issuing party to avoid the inconvenience and exposure of actually appearing and testifying.

If the subpoena is issued solely for the purpose of authenticating the fact that a story appeared in the newspaper, it may be resisted on the ground that such publications are "self-authenticating" under applicable rules of evidence.

2. Notes and Negatives - Unpublished Material: In most cases, a subpoena duces tecum will broadly describe "all notes, documents, materials, etc." in the reporter's possession relating to the particular matter. This creates a greater burden on the press and its ability to gather news in the future. An interview subject who is aware that all comments, both on and off the record, may eventually appear as evidence in litigation may be less willing to talk to reporters.

Not all courts recognize protection under these circumstances, however, and compliance with the subpoena is sometimes compelled in the absence of any showing that confidential sources were involved. Still, in certain cases, such broad subpoenas may be challenged under the same test described below.

3. Witnessing of a Crime: It is generally established that, regardless of other considerations, a member of the press who has witnessed commission of a crime must appear and testify about the events which he or she personally observed. This situation is most likely to arise in the form of testimony before a grand jury or inquiry judge.

4. Grand Jury Testimony: Before actual commencement of a criminal case by indictment or other formal process, nonpublic testimony may be taken before a grand jury or inquiry judge to determine whether criminal acts have taken place. In this context, the non-public nature of the testimony and the perceived importance of this investigative process may make it more difficult to challenge a subpoena. Nevertheless, it may be important to build a consistent record if a subsequent subpoena in the criminal action itself is to be challenged.

For example, the U.S. Supreme Court has held that the First Amendment does not give reporters a privilege against appearing before a federal grand jury to answer questions about the identity of a news source or information received in confidence.

Nonetheless, the court recognized generally that the First Amendment is to be weighed in the balance in media subpoena cases. It also left open the possibility that newspeople could be given greater protection under individual state constitutions. The Washington Supreme Court has expressly declined to read the Washington Constitution to create an absolute privilege or significantly greater protection against disclosure of confidential media sources.

5. Confidential Sources: Most states, including Washington, have recognized that when a reporter has acquired information from a source on a pledge that the identity of the source will not be revealed, any attempt to compel such disclosure must meet certain tests before the subpoena may be enforced. Protection may take the form of a limited protective order preventing inquiry only as to the source's identity, or it may result in an order quashing the subpoena altogether.

Where confidential sources are involved, it is essential that their identities not be disclosed to other people, as such disclosure may constitute a waiver of this protection. Limited disclosure to an editor or another reporter working on the same investigation would probably not be construed as a waiver.

However, this position can be strengthened by raising the possibility of such limited disclosure with the source. If he or she agrees, the scope of confidentiality is then defined, and there is less risk that such internal disclosure will be construed as a waiver.

6. The Test for Compelling Testimony:

(a) The Washington Supreme Court set the following stringent test for disclosure of the identity of a confidential source in the context of libel litigation against a newspaper.

(i) The underlying claim must be "meritorious"; i.e., it must not be frivolous or brought for the purpose of harassing the reporter.

(ii) The information sought must be necessary or critical to the cause of action or the defense pleaded. It must go "to the heart of the plaintiff's claim."

(iii) A reasonable effort must be made to acquire the desired information by other means. Even when the information is critical and necessary to the plaintiff's case, the plaintiff must exhaust reasonably available alternative sources before a reporter is compelled to testify.

(b) The Washington Supreme Court held that application of the test should be particularly stringent where the newspaper was not a party to the action and that the test also applies where testimony is sought in a criminal case.

(c) Some courts have held that even without showing confidentiality, a reporter has a qualified First Amendment protection against disclosure of unpublished material until the requesting party shows that the information is "necessary and material for the defendant" in the criminal proceeding. These courts have applied the above test as a threshold requirement even where sources have been fully disclosed.

In such cases, the most effective "defense" to the subpoena will be a simple phone call from the newspaper's lawyer to the individual or to his or her superior, calling attention to the guidelines. Remember, however, that until the subpoena is withdrawn, the legal obligation to appear and testify remains in force.

8. Caution: The area of a "reporter's privilege" against testifying is still a subjective and somewhat unsettled area of the law.

As a rule of thumb, it is often more productive to negotiate the desired result rather than to take formal action to quash, unless the particular facts seem likely to result in a favorable ruling as a precedent for future cases.

Experienced reporters who have been held in contempt of court strongly advise against promiscuous pledges of unqualified confidentiality. Once given, the promise of confidentiality may even be enforced as a contract in some cases.

                                                                                      BACK TO TABLE OF CONTENTS: PART IV