Subpoena can create balancing act

In handling a recent defamation lawsuit, we learned that our client newspaper's libel insurance policy provides for subpoena defense. Although subpoenas are among the more frequent issues that we address on the KPA legal hotline, I wasn't aware until now that some libel insurance policies cover a newspaper in defending against a subpoena even where the newspaper has not been sued. This particular policy was with First Media, which is one of three libel insurance providers recommended by the KPA.

At the Hotline, we've seen subpoenas on all sorts of issues. One newspaper was subpoenaed for information on who posted a comment on the newspaper's website claiming to have witnessed a crime. A local official subpoenaed an editor at another newspaper in order to defend a letter to the editor criticizing the local official. I can recall at least a couple reporters who, after publishing stories on juvenile court matters, were subpoenaed in attempts to see whether attorneys or parties had violated the rules requiring juvenile court confidentiality. And of course we're all familiar with reporters being subpoenaed in attempts to discovery confidential or unnamed sources for a variety of other reasons. Then there are the numerous garden-variety subpoenas seeking to compel reporters to testify about what they've learned in a criminal or civil case upon which they have reported.

The two kinds of subpoenas

Newspaper reporters typically receive such subpoenas in civil and criminal cases. In civil cases, subpoenas usually instruct the reporter to attend a deposition to be questioned by a lawyer. Often the subpoena requires the reporter to produce news articles, written notes, tape recordings, or any other contents of the reporter’s file. In criminal cases, either the prosecutor or the defense attorney subpoenas the reporter to testify at trial or sometimes to bring articles, notes, etc. to a pretrial conference.

While the subject matter of a subpoena can be as varied as the issues that may be brought up on any given case, typically a subpoena seeks only one of two things: either to compel a witness to appear and testify in a proceeding such as a hearing, a deposition or a trial, or to compel a person or entity to produce documents or other items. The subpoena to compel documents is sometimes referred to as a subpoena duces tecum -- Latin for "bring it with you."

What to do if you're served with a subpoena.

Despite the official appearance of a subpoena and occasional threats by attorneys to hold reporters in contempt, newspapers should respond to subpoenas in a manner that will protect certain legal privileges that can protect the newspaper and its reporters. For example, reporters who are served with a subpoena should contact their editors immediately, of course. And that should be done before the reporter volunteers any information to the attorney who sent the subpoena.

As a general rule, the legal privileges do not protect reporters from testifying to confirm that they accurately reported what they were told. For example, if an article quotes a named source, the reporter is not protected from confirming that the source in fact made that statement. Likewise, reporters will have to produce copies of published articles without objection in response to a subpoena. However, reporters have the right to object to anything more intrusive.

Confidential sources and the reporter's shield

Often, lawyers will seek the identities of the confidential sources a reporter has used to write a story. Kentucky law protects reporters from disclosing such information. Kentucky's so-called shield law, KRS 421.100, provides “No person shall be compelled to disclose in any legal proceeding or trial before any court...the source of any information procured or obtained by him, and published in a newspaper...by which he is engaged or employed, or with which he is connected.” It is a closer question when a lawyer seeks information that was not published in an article. Kentucky law is silent on this issue. However, cases from other jurisdictions suggest that reporters have a privilege that protects them from disclosing such information, even if the information is not confidential.

As broadly as Kentucky's shield law is worded, there are some categories of cases in which it does not apply. Because the shield law is a state law, it generally cannot be used to protect confidential sources when a reporter is subpoenaed in a federal criminal case or in some federal civil cases. While nearly every state has some sort of shield law, there is no federal shield law. Recent efforts to enact one, on the heels of several high profile federal cases dealing with confidential sources, have not come to fruition, yet.

In 1972, the United States Supreme Court decided Branzburg v. Hayes, a case that involved a Courier-Journal reporter’s refusal to answer questions before a grand jury. Branzburg recognized, for the first time, that newsgathering is a constitutionally-protected activity. Since Branzburg, most courts recognize that reporters have a privilege when called to testify about unpublished information or to produce their unpublished notes. These courts have held that reporters may avoid disclosing unpublished information unless the party seeking the information can show that he or she cannot get the information from another source and that the information is clearly relevant to an important issue in the case.

Strong policy reasons support the constitutional privilege enabling reporters to avoid the disclosure of even nonconfidential information. The United States Court of Appeals for the Second Circuit in Gonzales v. National Broadcasting Company, Inc. noted “the paramount public interest in the maintenance of a vigorous, aggressive and independent press capable of participating in robust, unfettered debate over controversial matters.” Of course there is also the fact that, if parties to any lawsuit were free to subpoena the press at will, it would become standard procedure to subpoena the local newspaper's files. Not only would this inhibit the freedom of the press, but it would burden the press with heavy costs of subpoena compliance.

Responding to a subpoena

To avoid these dangers, when subpoenaed, reporters should take steps to utilize their statutory and constitutional protections. First, reporters and their editors should consult with the newspaper’s attorney. (Make sure to take a look at the newspaper's libel insurance policy. There may be coverage for defending against a subpoena.) Through the attorney, they can attempt to reach an agreement with the subpoenaing attorney to limit the information disclosed to that which actually was published. If an agreement cannot be reached, reporters should attend the deposition or court proceeding and answer any questions that are not protected by the statutory or constitutional privileges. If a reporter is asked for protected information, the reporter’s attorney should object and instruct the reporter not to answer. If this occurs at a deposition, the lawyer seeking the information may later seek an order from the trial court judge compelling the information. The reporter’s attorney will be permitted to respond. If the reporter is testifying at trial and the trial court judge orders the reporter to divulge protected information, the reporter’s attorney can request an opportunity to appeal.

Although lawyers do not hesitate to subpoena reporters, these situations seldom require the involvement of a court. Nevertheless, reporters should understand their statutory and constitutional rights in order to prevent the news industry from becoming an “investigative arm” of private litigants or the judicial system. Also, newspapers should make sure they're aware of whether their insurance policies provide coverage for defending against a subpoena and should avail themselves of such coverage.

If you have questions about this or any other topic covered by the Hotline, please feel free to give us a call.

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