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Friday, February 2, 2007 - Page updated at 03:35 PM

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I. Subpoenas

A. Introduction

A subpoena is an order directing a person to appear and to testify at a given time and place. A subpoena duces tecum requires you to bring certain documents and things with you. Subpoenas may be issued by a court, by a lawyer representing a party in a civil or criminal case, or by a government agency.

All subpoenas have the authority of either the courts or statutory law behind them and carry the threat of punishment, both fines and imprisonment, for non-compliance. (The archaic phrase appearing at the bottom of some subpoenas - "Herein fail not at your peril" - remains true today.)

Nevertheless, compliance with a subpoena may not be required, upon a formal showing to a court (referred to as a motion to "quash" the subpoena) that its terms are unreasonable or oppressive. Note, however, that this is a formal proceeding, and until such formal steps are taken by your attorneys, compliance is technically required.

B. Subpoenas to Members of the Press

Reporters and editors are especially susceptible to being subpoenaed. Their daily work involves the compiling and summarizing of facts and events that may become the subject of court proceedings, investigations and legislation action. In addition, they are trained to be accurate observers and therefore make ideal witnesses.

The newspaper itself constitutes a convenient record of such facts and events. As a result, the newspaper and its employees are tempting targets of government agencies and private lawyers seeking competent evidence in a wide range of proceedings.

The courts have recognized the particular vulnerability of the press in this regard and have held that, in some circumstances, compelling testimony from the press creates a sufficient interference with the news-gathering process to require protection of journalists unless certain requirements can be met by the party issuing the subpoena.

The U.S. Department of Justice has also established a policy making subpoena of media members a last resort in any effort to obtain information. The policy requires that a subpoena not be used except "under exigent circumstances" similar to, but less restrictive than, those in which a search warrant may be sought.

Recognize, however, that such protection runs counter to the long-established rule that every citizen must appear and give testimony upon proper demand, and not all courts are sympathetic to claims of what they may regard as a special privilege.

Recognize also that both the issuance of the subpoena and the testimony you may be required to give are serious legal matters in which legal counsel should be consulted in all cases, as soon as you become aware that the subpoena may be issued.

C. What to Do Before a Subpoena Is Served

When the facts or events in a news story become the subject of litigation or government investigation, the parties involved will usually engage in informal investigation that may well include cordial conversations with reporters. This is particularly likely in the case of government investigations where the reporter may have had close contact with government attorneys in the course of his or her own investigation.

Unfortunately, disclosure of facts and sources outside the published article at this stage may constitute a waiver of privileges you may want to assert at a later time, when formally subpoenaed. Be sensitive to this fact and, if necessary, explain to the questioning party that the newspaper has very strict procedures relating to release of background material and that you must clear any further discussions with your editor. This will give you time to consult with the editor and lawyer about the long-range effect of such discussions.

D. What to Do When You Are Subpoenaed

1. Notify your editor immediately, as soon as you become aware that a subpoena may be served on you. The editor should also notify the lawyer at that point. Although subpoenas normally include reasonable advance notice of the date on which you are to appear, this is not always the case, and there may be a relatively "short fuse" by the time service is actually accomplished.

(The Criminal Division Policy Manual of the King County Prosecutor's Office stipulates in its Media Prosecutor Relations section that media should be provided advance notice that a subpoena duces tecum is being sought, except in extreme circumstances.)

2. Do not try to avoid service. A subpoena must be "served" upon you, usually by a court officer (for example, a U.S. marshal) or a "process server" authorized by court rule or law. Although you are under no obligation to make his or her job easier, there are adequate procedures under the law to virtually ensure service on you at some point. Resistance to service by a member of the organized press may make it difficult to negotiate a compromise at a later date. In extreme cases the subpoena may simply be abandoned and a search warrant issued in its place.

The act of accepting service of a subpoena does not, by itself, constitute an admission of anything and does not impose liability (other than the obligation to appear).

3. Note carefully the circumstances of service: when, where, how, and other details. This information may be useful in a motion to quash.

4. Do not accept service for another person. Do not volunteer information about the person to the process server without first discussing it with your editor. If necessary, refuse to answer any questions without first consulting your editor or the newspaper's lawyer.

5. If production of your notes or other documents is required (a subpoena duces tecum), start compiling those notes and deliver them to your editor. At this point, the documents requested are evidence in the case and must be preserved. Destruction of documents may result in a citation for contempt of court.

E. Grounds for Protection Against Subpoenas

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.

7. Administrative Procedures: In addition to the legal principles outlined above, some law enforcement and administrative agencies have their own internal policies that must be followed before a member of the agency may subpoena a reporter. Because of the size of these organizations, it is not uncommon for subpoenas to be issued by individual lawyers in these offices in violation of their own guidelines.
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.

F. What to Do If Ordered to Comply With a Subpoena

Unless the decision to appeal such an order is made, you will be required to appear at the appointed time and place and to, give sworn testimony concerning the matter.

You may also be required to produce the original notes and documents required. Your testimony may, however, be subject to a protective order, limiting the scope of questioning and of demands for documents, and you will be accompanied by the newspaper's lawyer in most cases except in grand jury matters.

Occasionally, cases arise in which the reporter is faced with the pledge of confidentiality on one hand, and the certain penalties of refusal to comply with a court order on the other. Before that point is reached, consider discussing the situation with the source. Confronted with the seriousness of your position, the source may agree to allow disclosure of his or her identity in these limited circumstances, particularly if an adequate protective order has been worked out.

In libel cases, where the newspaper is a party to the action, additional' concerns may arise. If you refuse to identify a source or produce notes after being ordered to do so, the ability of the paper to present evidence in its defense may be seriously limited as a penalty for such non-disclosure.

In one extreme case, a court went so far as to strike all defenses of the newspaper, thus imposing liability without ever reaching the truth or falsity of the published stories. The Washington Supreme Court has not reached the question of what sanctions would be appropriate if the reporter refuses to disclose his or her confidential source in the face of a court order.However, the U.S. Supreme Court decision fixing the burden of proving falsity on the plaintiff may help alleviate this dilemma.

In summary, any decision to disregard a court order to testify is an extremely serious matter, to be undertaken only after all other options are carefully explored.

II. Search Warrants

A. Legal Background

1. In the face of a First Amendment challenge, the U.S. Supreme Court affirmed that a newsroom can be searched when there is reasonable cause to believe that instrumentalities, proceeds or simply evidence of a crime may be found - whether or not the premises are occupied by people suspected of crime.

2. The defendant newspaper had argued that, given the constitutional sensitivity of confidential material in newsrooms, a subpoena would be the appropriate process, thus permitting a hearing on the issue. The court disagreed, although it suggested that the judge issuing the warrant should be "sensitive" to First Amendment issues in such cases.

The court did not suggest how and by whom this sensitivity was to be developed; search warrants are issued "ex parte" (i.e. at the instance of one party without the necessity of giving notice or the opportunity to contest to any person adversely interested).

3. In the wake of that case, several states have enacted protective legislation. In 1980, the Washington Legislature amended RCW 10.79.015 to limit media and reporter search warrants to situations where there is probable cause to believe the media were involved in the crime or that the material sought will be destroyed or hidden if subpoena procedures are used. This standard has also been adopted as part of the Criminal Rules of the Superior Courts (Cr. R. 2.3(f).

4. In addition, some local government authorities- have voluntarily adopted procedures limiting the situations in which they seek media search warrants. For example, in 1974, the King County prosecutor adopted Standard Operating Procedure 1360(11), requiring prior approval by the prosecutor for media searches, to be given only if "no other method"is "likely to be productive" and a "substantial risk" exists that the material will be destroyed if prior notice is given.

5. Congress enacted the Privacy Protection Act of 1980, 42 U.S.C.  2000aa to prohibit searches of the media or media employees, except in extraordinary circumstances. The act has applied to federal search warrants since its passage and to the states since October 1981. Its standards have also been adopted as part of Washington's Superior Court Criminal Rules.

(a) The act requires use of subpoenas or informal requests for information, instead of search warrants.
(b) A search warrant may be issued only if it is reasonably likely that the media will destroy or conceal the evidence if notice is given by subpoena; if the media have committed or are committing the crime; and if death or injury will result if a search warrant is not used.
(c) The Department of Justice has issued rules pursuant to the act to bind U.S. attorneys and Department of Justice attorneys.

6. However, because search warrants can be sought by police and others who are unaware of or feel they are not bound by such limits, and because they merely may state to the issuing court that the standards of applicable regulations can be met, there is still a risk that a search warrant will be issued for a local media search, and careful procedures should be in place to deal with the problem.

7. One important point is that any specific newsroom policy requiring or suggesting that sensitive information be destroyed or hidden would meet each of the above tests and would invite a search warrant. In any event, after a search warrant has been served, it may be a crime to destroy material that is the subject of the warrant.

B. Procedures for Issuance of Search Warrants

1. In Washington state, any prosecuting attorney or "peace officer" (a broad category) can obtain a warrant from a judge with jurisdiction over the area where the search is planned. See generally Washington Superior Court Criminal Rules, Rule 2.3. Federal search warrants similarly can be obtained by a government attorney or a federal law enforcement officer from a federal judge or magistrate, or from a state judge. See Fed. R. Crim. P. 41.

2. An affidavit to the court establishing the grounds for the warrant is required. No prior notice of a warrant is given to its subject, and the supporting affidavit need not be served on the subject.

3. There are formal requirements for a valid warrant:

(a) It must be signed by or on behalf of a judge or magistrate with jurisdiction over the premises to be searched.
(b) It must be directed to a named law enforcement officer and must command him or her to search the specified premises.
(c) It must describe the material to be seized and must state that it is in one of the following categories:

(i) evidence of a crime;
(ii) contraband, the fruits of crime or things otherwise criminally possessed;
(iii) weapons or other things by means of which a crime has been committed;
(iv) counterfeit materials, forged instruments or materials used in making such materials; (v) any apparatus used for unlawful gaming;
(vi) evidence material to the investigation or prosecution of any homicide or felony;
(vii) any apparatus used to unlawfully obtain telephone or telegraph service;
(viii) if it is between 10 p.m. and 6 a.m., a federal warrant must specifically authorize a night search.

4. The officer named in the warrant must be present at the search, but may be assisted by other officers. A copy of the warrant and a receipt for all items taken must be given to the person in charge of the premises. The warrant must be used within 10 days of issuance.
5. The law does not provide any specific means for stopping a search in progress. The court rules simply provide for an after-the-fact motion to regain seized property. Since a search can begin as soon as the warrant is handed to you, your only hope of contacting a prosecutor or judge to try to block the search is to persuade the searching officer to stand by voluntarily until such attempts are completed.

C. How to Deal With a Search Warrant

1. When a law enforcement officer states that he or she has a search warrant, the person at the reception desk should be alerted to call the editor on duty to meet the officer, to call the reporter or other person who may be named in the warrant, and to ask the officer to wait until the editor or other person in charge can meet the officer at the desk.

2. When the editor receives word that the law enforcement officer is present with a warrant, he or she should immediately call a lawyer for the newspaper, ask another editor to contact the publisher, and find an available reporter and photographer with his or her camera to meet with the editor at the reception desk.

3. Always remember that if the material sought is not confidential or sensitive, it may be preferable to decide to turn it over and thus avoid having an outsider rummage through unrelated sensitive or confidential materials.

4. The editor or person in charge should make a copy of the search warrant and any accompanying documents at once, if possible, and get the copy to the editor who is in contact on the telephone with the newspaper's lawyer.

5. The editor should examine the search warrant to see if it meets the formal requirements set forth above. If it does not, you should politely challenge the warrant and tell the officer you believe it is invalid. If the officer insists that the search will go on, politely advise him that he personally may be responsible for any damages caused by the search.

6. Even if the warrant is apparently valid, explain to the officer that you would like an opportunity to consult with the newspaper's lawyer in an effort to obtain a court hearing. Explain that this is not a stalling tactic to allow time for the material to be hidden or destroyed, and present the officer with a written statement of company policy to that effect.

7. If the officer is unwilling to wait before carrying out the search, advise him or her that the search will be recorded by the newspaper's reporters and photographers and that immediate legal action will be taken to recover any material seized and to sue for damages caused by the search. Emphasize to the officer that the search threatens the confidentiality of material privileged under the First Amendment to the U.S. Constitution, and the functioning of the newspaper.

8. Although, as noted above, you may decide to hand over the material to avoid rummaging by a searching officer, remember that no one at the newspaper is under any legal obligation to assist the officers in the search. A search warrant is not a subpoena requiring testimony, and you need not give the officers any information or answer any of their questions.

9. Get the name and badge number of every officer who is present.

10. At no time consent or otherwise agree to the search.

11. If the search is of a reporter or other employee's home, person or vehicle, the reporter or editor should notify the managing editor and the newspaper's lawyer as soon as possible and follow the above guidelines where possible.

12. Note that safe deposit boxes, lawyers' offices and similar depositories are just as susceptible to search warrants as the newspaper office, homes of reporters and automobiles.

13. Whenever the newspaper obtains possession of highly sensitive material, you should consult with your editor and lawyer with respect to its handling.

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