A subpoena can grind your operation to a halt
May 6, 2014
By Tonda Rush
Q I just got a subpoena. This one is a real fishing expedition. It would take days or even weeks with our small staff to even find the material this lawyer is looking for. Do I have to respond?
A In a word, yes.
There are few topics in the newsroom as fraught with ethical and legal complications as subpoenas to journalists. Reporters and editors are accustomed to reading about the visible national battles over leaks investigations and invasions of newsroom phone records.
For community newspapers, the first nerve to be hit is not usually about secret sources, but the simple practicality of tight resources. Responding to a subpoena by searching through years of bound copies and old files can bring a small newsroom to its knees. And fighting it can be costly. But, outraged though you may be, you cannot practice your three-point shot with the request and then ignore it.
The degree to which the newsroom is protected by reporters’ shield laws varies across the country. Most states have a special statute to define reporters’ privileges and others have at least some court-made law recognizing a reporters’ privilege. (Of course, as Pub Aux readers know, there is no federal shield law, and we are trying to get one passed by Congress.)
But many authors on the topic omit the logistics and practicalities of a subpoena. Bottom line: unless you can get it quashed or withdrawn, you have a legal obligation to respond.
In other words, just because a lawyer may not have the legal right in your state to invade your files, you cannot simply ignore the subpoena. Here are a few tips on how to respond.
• If at all possible, consult your own attorney before doing anything. If your local attorney is not media-law savvy, ask him or her to contact the National Newspaper Association Business Laws Hotline or your state press association hotline for help.
• Do not directly call the attorney who subpoenaed you until you know your legal rights and formulate a strategy for response. You may wind up revealing more than you intended. And fulminating about reporters’ rights with the attorney likely won’t get you where you need to be.
• Do not destroy any files, notes or stories after you get the subpoena. A good newsroom has a document retention policy that limits how much interesting stuff you keep around. But if you didn’t follow it before the subpoena was served, picking the day after the service to clean out your old notebooks is a bad idea. Destroying evidence can be a crime.
• Many subpoenas result from an attorney’s attempt to learn all he or she can about a matter in dispute and not from any burning desire to bust through the First Amendment doors. Subpoenas for information about traffic accidents where a negligence suit has resulted or a divorce case where one of the parties has been in the news are pretty common. Amazingly enough, many lawyers are not taught in law school that they are not supposed to subpoena reporters. Your defenses—even when solidly recognized in your state—may be a complete surprise to the attorney who thought he or she was just pursuing normal litigation strategies.
• After you have a clear handle on your legal rights, your attorney (or you, if legal counsel is out of the question) may be able to negotiate down to a search that reveals published stories on the topic of the litigation. Often that is all the attorney is after. (Even some large newsrooms will accommodate requests for published material, although they may not like to say so.) Once it becomes clear to the requesting counsel that your side may tie up the case with a motion to quash the subpoena, you may find a quick accommodation that doesn’t offend your values. Yes, the attorney could go to the library to find the stories. But once the subpoena is issued, the obligation shifts to you.
• If you cannot come to an agreement, you have only two choices: either find the materials and present them at the day and time specified, or file a motion with the issuing court to quash the subpoena. That is when you will argue before the judge about the scope of the reporter’s privilege in your state.
There is, of course, a third option: go directly to jail. But who will cover the school board while you’re behind bars?
Editors sometimes call the NNA Business Laws Hotline full of indignation, arguing that they should not even have to dignify a fishing expedition with an answer. Yes, they probably shouldn’t have to. Unfortunately, that is not what the law says. Until a judge agrees or the subpoena is withdrawn or narrowed, the obligation remains yours. Ignore it, and you risk a citation for contempt of court.