Considerations when a media newsroom receives a subpoena, either requesting testimony or the production of documents, in situations where the media is a third party (neither a plaintiff nor defendant in the case):
Media can choose to submit to a subpoena or resist (seek to have it quashed).
The court may quash or modify a subpoena “if it is unreasonable and oppressive” or postpone approval of the subpoena until the party has paid the reasonable cost for the media to produce the document or pay for attendance in court and mileage as allowed by law. (Indiana Rules of Trial Procedure – T.R. 45)
If the newsroom decides to resist the subpoena, the judge should be expected to consider the media arguments under legal tests spelled out in one of two cases depending upon whether the case is civil or criminal.
Civil case
In re Subpoena Duces Tecum to Stearns v. Zulka, 489 N.E.2d 146 (1986), should control when the media is asked to submit to discovery requests in a civil action.
“Stearns, a newspaper photographer for the Fort Wayne News-Sentinel claimed a privilege against compulsory disclosure of information obtained in the course of his employment with the newspaper. The [trial] court, in a general judgment, overruled Stearn’s motion to quash and ordered Stearns to produce, within fourteen days, photographs taken at the scene of the accident.” Id.
In the Indiana Court of Appeals case, the three-judge panel established a test for a party seeking discovery from the press.
That test requires the party to show that: (1) the information is “clearly material and relevant” to the party’s claim or defense; (2) the information is “critical to the fair determination of the cause,” and (3) the party has “exhausted all other sources for the same information.” Id. at 151.
Criminal case
The Indiana Supreme Court rejected Zulka for criminal cases with its decision in WTHR-TV v. Cline, 690 N.E.2d 1 (1998). Footnote 9 appears to leave Zulka alone for civil cases. Id. at 27.
The court applied the following test for examination of discovery requests involving the media in criminal cases:
Must be a sufficient designation of the items sought to be discovered (particularity).
Items requested must be material to the defense (materiality or relevance); and (3) if particularity and materiality requirements are met, the trial court must grant the request unless there is a showing of “paramount interest” in non-disclosure.
In WTHR-TV, the Supreme Court ordered the television station to give copies of its unaired tapes of an interview with a suspect to the defense attorney, but the Court left the door open for a different outcome with reporters’ notebooks and other records (footnote 8 in the case). WTHR-TV, 690 N.E.2d at 25.
Potential abuse
Judges asked to consider reporters as witnesses (with requests for separation of witnesses) may want to consider whether the party’s motivation is to prevent the reporter from covering the trial.
The inability for a newsroom to appoint a specific reporter to cover a case because he/she has been put on a witness list can create a hardship for the media entity, particularly for a small newspaper or station with limited staffing.
The court should also consider whether an attorney is involved in a “fishing trip” when making a request for records from the media.
The Indiana Supreme Court denied a subpoena request for lack of reasonable particularity and materiality in WTHR-TV v. State of Indiana v. Milam, 690 N.E.2d 1174 (1998).
A woman, who was on trial for killing her husband, in a pretrial motion requested the trial court to order the newspaper to preserve and produce all news footage regarding the husband’s death, and regarding the questioning, apprehension, arrest and arraignment of the woman.
The trial court’s granting of this motion was overturned by the Supreme Court.