THE CIVIL LITIGATOR New Shield Law Prohibits Most Subpoenas to Reporters. by Daniel E.D. Friesen and Andrew M. Low

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1 Originally published in The Colorado Lawyer, Vol. 20, No. 5, May THE CIVIL LITIGATOR New Shield Law Prohibits Most Subpoenas to Reporters by Daniel E.D. Friesen and Andrew M. Low A new Colorado law prohibits litigants from subpoenaing news reporters except under limited circumstances. The reporters shield law 1 codifies a privilege that already existed under the case law outside Colorado, which interpreted the First Amendment of the U.S. Constitution. The new Colorado law provides that in most cases, reporters can be subpoenaed to testify or to produce documents or other materials only in cases where the party issuing the subpoena demonstrates by a preponderance of the evidence that (1) the information sought from the reporter is "directly relevant to a substantial issue involved in the proceeding," (2) the information "cannot be obtained through any other reasonable means," and (3) a strong interest of the party issuing the subpoena outweighs the interests under the First Amendment of the reporter and the public. 2 Lawyers who wish to obtain information from reporters can save time and money if they have a basic understanding of how the reporters shield law works and why it was enacted. This article briefly discusses the background of the shield law, summarizes the key provisions and provides some practical suggestions for its application. Background Before the enactment of the shield law, case law in the federal courts and in many other states recognized that reporters have a qualified privilege against subpoenas. However, no statutes or appellate decisions in Colorado explicitly recognized this privilege. The shield law was enacted to recognize that reporters do have a qualified privilege against subpoenas in most situations and to eliminate unnecessary litigation. Protecting Reporters Reporters maintain that they need special protection from subpoenas, partly because they are subpoenaed to testify far more often than other citizens. A reporter's job is to record and report accurately on events that frequently lead to litigation. As a result, before enactment of the shield law, some reporters were subpoenaed as many as twenty or thirty times per year. 3 Reporters also maintain that being subpoenaed causes them to suffer more serious consequences than do other persons who are subpoenaed. Subpoenaing reporters tends to inhibit enterprising reporting and discourage potential sources from talking openly with reporters. Preventing Wasteful Litigation The reporters shield law prevents wasteful litigation by codifying the existing common law under the First Amendment. This, in turn, avoids unnecessary disputes about what that law is. The codification also allows the parties to focus their attention on how to apply the qualified reporters' privilege in their particular cases. Source of Colorado's Statute Davis Graham & Stubbs LLP

2 The source of the new Colorado shield law is the qualified privilege recognized in numerous court decisions. The leading U.S. Supreme Court case is Branzburg v. Hayes. 4 In Branzburg, a reporter was subpoenaed to testify before a federal grand jury. Although the Court ruled that the reporter was required to comply with the subpoena, five justices recognized that the First Amendment interests must be balanced in each case. The Branzburg decision spawned numerous opinions by state and federal courts adopting a qualified reporters' privilege. In fact, every federal circuit court to address the issue has endorsed a qualified reporters' privilege. 5 Twenty-five states have done the same. 6 The common law reporters' privilege contains essentially the same elements as the new Colorado shield law. The information sought must be (1) centrally important to the case, (2) unavailable from alternative sources and (3) needed such that the need outweighs the First Amendment interests at stake. 7 The qualified privilege has been applied in civil 8 and criminal cases. 9 It protects both confidential and non-confidential sources. 10 Many Colorado trial courts have adopted the qualified reporters' privilege. 11 However, the Colorado appellate courts have considered a reporter's subpoena just once. In Pankratz v. District Court, 12 which preceded the shield law, the Colorado Supreme Court upheld enforcement of a grand jury subpoena to a reporter. The court did not explicitly accept or reject a qualified reporters' privilege. Nevertheless, the court emphasized that it was enforcing the subpoena because the reporter was the only witness to criminal conduct. Thus, the subpoena in Pankratz would have been enforceable under both the common law reporters' privilege and the new shield law. Indeed, a concurring opinion in Pankratz explicitly applied the common law test. 13 Without a dispositive appellate case law in Colorado, courts and parties have devoted substantial time and effort, struggling with the existence, scope and protection afforded by a reporters' privilege in Colorado. However, Colorado trial courts uniformly have recognized the existence of a qualified reporters' privilege. 14 Once a trial court adopts the privilege, the party issuing the subpoena must then establish that the information sought is important to the proceeding and unavailable from other sources. In the authors' experience, almost without exception, when parties look for alternative sources of information, they find them. Indeed, the very nature of reporting is to gather information for a news story from various sources. Rarely are reporters the sole first-hand observers of the events on which they report. Colorado's new shield law should reduce litigation in two ways. First, the law directs counsel and client to look for alternative sources in the first instance. These sources generally are available. Consequently, under the new law, far fewer subpoenas will be issued to reporters. Second, when counsel honestly believes that a reporter is the sole source of information, the litigants can skip the debate about whether there is a privilege. They can expend their efforts more appropriately and more efficiently on the question of whether the particular subpoena satisfies the three-prong common law test. Summary of the Law Basic Protection The shield law provides that newspersons may not be subpoenaed. It then provides several exceptions to the rule. The operative section of the law provides as follows: [N]o newsperson shall, without such newsperson's express consent, be compelled to disclose... any news information received, observed, procured, processed, prepared, written or edited by a newsperson, while acting in the capacity of a newsperson

3 "Newsperson" is defined broadly to include any member of the mass media -- or any employee of or independent contractor to such a member of the mass media -- engaged to "gather, receive, observe, process, prepare, write, or edit news information." 16 Thus, in addition to reporters, the shield law covers many others, such as news photographers, producers and editors. "News information" also is defined broadly. It includes... any knowledge, observation, notes, documents, photographs, films, recordings, videotapes, audiotapes, and reports, and the contents and sources thereof, obtained by a newsperson while engaged as such, whether such items have been provided to or obtained by such newsperson in confidence. 17 Thus, the qualified privilege extends not only to materials used to prepare a news report, but to all "knowledge" and "observations" obtained by newspersons in the course of their newsgathering activities. Significantly, the protection applies to both confidential and non-confidential sources. The shield law applies to both judicial and administrative proceedings. Accordingly, the substance of the law is repeated in its entirety in both Title 13 and Title of the Colorado Revised Statutes. In addition, the Colorado General Assembly expressly declared that protecting reporters from subpoenas is a matter of statewide concern. 19 As such, the law applies to all local entities that have subpoena power. 20 Exceptions to the Protection The situations in which reporters are not protected from subpoenas are set forth in two different sections of the shield law. Subsection two contains four explicit exceptions. The "privilege of nondisclosure" does not apply to information (1) received at a press conference, (2) which actually has been published or broadcast, (3) based on a newsperson's personal observation of a crime, when such information cannot reasonably be obtained through other means and (4) based on a newsperson's observations of a class 1, 2 or 3 felony. 21 These exceptions are largely self-explanatory. However, caution must be used in applying the exception for published materials. If read broadly, the publication exception would swallow the rule. Newsperson's observations typically lead to the publication of news reports based on those observations. Thus, if publication were a general waiver of the reporters' privilege on the subject matter published, there would be no privilege at all. This exception is expressly limited by subsection 4, which provides as follows: A publication... which does not specifically address the specific news information sought, shall not be deemed a waiver of the privilege of nondisclosure as to such specific news information. 22 In other words, the privilege is waived with respect to information actually published in a news report, but not with respect to any other unpublished information on which the news report is based. In addition to these explicit exceptions, subsection 3 of the law sets forth the three-part test (set forth in the introduction to this article) for overcoming the reporter's privilege. 23 Based on the particular circumstances of a case, the test is applied by posing a factual question to the district court, usually within the context of the reporter's motion to quash. The burden of proof is on the party issuing the subpoena to establish by a preponderance of the evidence that all three parts of the test have been met. 24

4 Accordingly, a party cannot subpoena a reporter, as part of a general discovery, to learn what the reporter knows. 25 The party issuing the subpoena must be able to establish, without being able to talk with the reporter in advance, that the reporter's testimony will satisfy the test. Meeting this burden may be particularly difficult with respect to the first two parts of the test. The third part of the test for overcoming the reporters' privilege is that... a strong interest of the party seeking to subpoena the newsperson outweighs the interest under the First Amendment to the United States Constitution of such newsperson in not responding to a subpoena and of the general public in receiving news information. 26 This language recognizes that both the reporter and the public have significant First Amendment interests at stake whenever a reporter is threatened with a subpoena. The wording explicitly recognizes that any interest which could outweigh these First Amendment concerns must be "strong." In balancing the interests, litigants should be aware of the following legislative declaration: The general assembly finds that an informed citizenry, which results from the free flow of information between citizens and the mass media, and the preservation of news information sources for the mass media is of vital concern to all people of the state of Colorado Thus, a party's interest in obtaining information from a reporter must outweigh a "vital concern" of the state. Practical Considerations A lawyer seeking to subpoena a reporter should consider first whether any of the explicit exceptions to the privilege apply. Although the exceptions focus primarily on observations of criminal activity, the civil litigator should be alert to the possibility that information sought from a reporter in a civil case could constitute that reporter's observation of criminal activity. If none of the exceptions apply, the lawyer should look for facts that would help meet the requirements of the three-part test for overcoming the privilege. Initially, lawyers should scrutinize carefully the events in question to see whether there are any witnesses other than the reporter. Lawyers tend to overlook the fact that the client is often an alternative source of information. If a lawyer believes that it is necessary to rely on a reporter because other witnesses are unavailable or unreliable, the lawyer must be able to demonstrate by a preponderance of the evidence why the alternative sources are not sufficient. In addition, lawyers should consider carefully the risks of subpoenaing a reporter. The reporter probably will oppose the subpoena by arguing that the information sought not only is available elsewhere but also is not "directly relevant to a substantial issue." In cases where there are questions concerning the admissibility of the reporter's testimony, the reporter's lawyer will argue vigorously that the evidence is inadmissible, in order to show that the reporter's testimony is not "directly relevant." Thus, the lawyer who subpoenas a reporter is likely to face two opponents in court on the admissibility of the evidence: opposing counsel in the case and counsel for the reporter. In the authors' experience, counsel for the reporter frequently devotes significant resources to establishing the inadmissibility of the reporter's testimony, even in cases where opposing counsel has not. Rulings on such issues could, in turn, render inadmissible similar evidence from sources other than reporters. Therefore, in issuing a subpoena to a reporter, a litigant may risk more than simply not getting the reporter's testimony. Another risk of subpoenaing reporters is that the testimony may prove to be detrimental. If so, the testimony can be particularly devastating because most reporters are credible and articulate witnesses.

5 Frequently, lawyers conclude that a reporter must have relevant information because of what the reporter published or broadcast. If what a lawyer really needs is the information contained in those publications and broadcasts, counsel should consider purchasing copies of individual news reports (and, sometimes, the scripts for those reports). All of the newspapers are available for copying at public libraries. The cost of obtaining these reports is far less than the cost of litigating a contested subpoena. Often, the reports provide all the information necessary. Conclusion Colorado practitioners can save their clients time and money by being aware of Colorado's new shield law for reporters. In dealing with this law, counsel should look for sources of information other than reporters. In cases where no such sources exist, they should be ready to meet their burden of proof for overcoming the qualified privilege. NOTES 1. C.R.S and to 106. The new law appears in both Title 13 and Title 24. Although this article generally refers only to the provisions of Title 13, parallel provisions appear in Title C.R.S (3). 3. Testimony by Ward Lucas of KUSA-TV (Denver) to Colorado House and Senate Judiciary Committee in support of Senate Bill U.S. 665 (1972). 5. See, e.g., United States v. Cuthbertson, 630 F.2d 139 (3d Cir. 1980); Silkwood v. Kerr-McGee Corp., 563 F.2d 433 (10 th Cir. 1977); United States v. LaRouche, 841 F.2d 1176 (1 st Cir. 1988). 6. See, e.g., Mitchell v. Marin County Superior Court, 690 P.2d 625 (Cal. 1984); CBS, Inc. v. Campbell, 645 S.W. 2d 30 (Mo. Ct. App. 1982); State v. Sandstrom, 581 P.2d 812 (Kan. 1978). 7. United States v. Burke, 700 F.2d 70, 77 (2d Cir. 1983); United States v. Cuthbertson, 651 F.2d 189, (3d Cir. 1981). 8. See, e.g., Silkwood v. Kerr-McGee Corp., 563 F.2d 433, 438 (10 th Cir. 1977). 9. See, e.g., Burke, supra, note 7 at See, e.g., United States v. Blanton, 534 F. Supp. 295, 297 (S.D. Fla. 1982); Application of Consumers Union, 495 F. Supp. 582, 586 (S.D.N.Y 1980). 11. Jones v. Woodward, Case No. 88 CV 7143 (Denver Dist. Ct., April 29, 1988); People v. Wortham, Case Nos. 87 CR 1357,1713 (Denver Dist. Ct., March 25, 1988); KBTV Broadcasting, Inc. v. County Court, Case No. 83 CV 8497 (Denver Dist. Ct., April 24,1984); People v. Kisamore, Case Nos. 86 M 3232, 3231, 3234 (El Paso County Ct., Feb. 10, 1987) P.2d 1101 (Colo. 1980). 13. Id. at Concurrence by Justice Rovira. 14. Supra, note C.R.S (2). 16. C.R.S (l)(c). 17. C.R.S (b). 18. C.R.S to C.R.S C.R.S (l). 21. C.R.S (2)(a)-(d). 22. C.R.S (4). 23. C.R.S (3). 24. Id. 25. See Colorado Rules of Civil Procedure Rule 26.

6 26. C.R.S (3)(c). 27. C.R.S This month's column was written by Daniel E.D. Friesen and Andrew M. Low, Denver, partners of Davis Graham & Stubbs.