Arizona trial reporter compendium

The party seeking production must identify with reasonable detail in the required affidavit the information requested, the efforts made to acquire it, and from what sources. Once a party serving a subpoena on a newsperson has complied with A. Bartlett , Ariz. The purpose of A. Bartlett, Ariz. To carry out that objective, the statute compels the party seeking the information to demonstrate "[t]hat the information sought is relevant and material to the affiant's cause of action or defense.

Moreover, the First Amendment privilege recognized in Reinstein , Ariz. See Section VI. The party seeking production must identify with reasonable detail the efforts made to acquire from other sources the information sought. The requesting party must identify all other sources from which he or she attempted to obtain the information sought. For example, in Bartlett , the Court of Appeals explained that the party seeking enforcement of a subpoena served on a television station for production of a videotaped recording was not required to submit for court inspection every deposition obtained from other sources.

Under A. If the television station, the party being served, was unconvinced by that avowal, it had the burden to review the depositions and videotapes for purposes of controverting the allegations set forth in the supporting subpoena. In Reinstein , the Court of Appeals found that the requesting party had failed to exhaust other sources by failing to seek an independent interview with the source of the alleged statements. There is no statutory or case law addressing this issue directly.

However, Bartlett suggests that direct, material evidence of a crime, if not available elsewhere, can be a unique source of evidence subject to subpoena. The Arizona Superior Court has stated that a reporter's direct observation of a crime is not protected under the Arizona Shield Law. The Arizona Shield Law does not require a judicial balancing of interests to determine whether it applies to protect information sought by a subpoena. Rather, if the subpoena would require disclosure of a confidential source or confidential information, the privilege applies and the subpoena must be quashed.

In contrast, the Arizona Media Subpoena Law balances the needs of newspersons against the needs of litigants in obtaining information vital to the presentation or defense of their case. In Bartlett , the court balanced the need in favor of the requesting party, which could not obtain elsewhere evidence relating to the condition of a car accident victim and scene just moments after the accident.

Arizona law provides that third-party subpoenas cannot be overbroad or unduly burdensome. Under Rule 45 of the Arizona Rules of Civil Procedure, a party or an attorney serving a subpoena "shall take reasonable steps to avoid imposing undue burden or expense on a person subject to that subpoena.

The Arizona Media Subpoena Law goes further, and imposes several requirements on the subpoenaing party designed to narrow the scope of the material sought.

The purpose of the statute is to protect members of the media from onerous subpoenas and "broad discovery 'fishing expeditions'" that would unduly interfere with the continuing process of collecting and reporting news to the public. In addition to other remedies available for improper subpoenas, A.

There is no statutory or reported case law addressing this issue. However, in In re Hibberd , the Arizona Superior Court granted a motion to quash a subpoena even though the subpoenaed materials arguably would have enabled law enforcement to identify an at-large serial arsonist posing a threat to human life. The Arizona Media Subpoena Law requires the subpoenaing party to attest that "the information sought is not protected by any lawful privilege. Under the First Amendment privilege recognized in both Reinstein , Ariz.

The privilege cannot be easily defeated: "[I]n the ordinary case the civil litigant's interest in disclosure should yield to the journalist's privilege. Accordingly, a request for merely cumulatively material cannot trump the First Amendment.

Rule 45 of the Arizona Rules of Civil Procedure provides several means for contesting frivolous or unduly burdensome subpoenas. If the party or attorney serving the subpoena fails to take reasonable steps to avoid imposing an undue burden or expense on the subpoenaed party, the court may impose sanctions on the serving party or attorney. If the subpoenaed person is not a party to the litigation, the court may issue an order to protect such person from any significant expense resulting from the mandated copying and inspection.

See Rule 45 e 2. The subpoenaed party may also file a motion in the superior court of the county in which the case is pending to quash or modify the subpoena. The court must grant the motion to quash or modify if the subpoena:. The court may grant the motion to quash or modify if the subpoena:.

If the demanding party shows a substantial need for the testimony or material that cannot otherwise be obtained without undue hardship, and assures that the subpoenaed person will be reasonably compensated, the court may order an appearance or production of the requested materials subject to specified conditions.

Rule Under Matera , if the subpoenaed party raises the Arizona Shield Law in opposition to a subpoena, it bears the burden of demonstrating that the subpoena would require the disclosure of a confidential source of information. However, no statutory or case law specifically addresses how a party would, or could, meet that burden. In Cooper Tire , the court considered whether a reporter had waived the Media Shield Law privilege by submitting certain materials to the court for an in camera inspection following demands from another party.

Specifically, the reporter had obtained documents from a third-party source that had been marked as confidential in an ongoing proceeding.

The party to the case which had designated the materials as confidential sought information regarding the identity of the confidential source and the reporter objected to turning that information over. In Cooper Tire , the court assumed for purposes of its decision that the privilege was subject to waiver. In doing so, however, the court noted that it made this assumption only because it found that waiver had not, in fact, occurred. Assuming arguendo that the A.

There is no statutory or case law addressing this issue. Parties often stipulate to the authenticity of news reports that actually aired. If stipulation is not possible, the broadcaster's custodian of records could provide an authenticating declaration or affidavit. Live testimony on such issues is extremely rare. See Section VII. Parties often stipulate to the authenticity of news reports. If stipulation is not possible, a custodian of records can provide an authenticating declaration or affidavit.

Typically, an order to compel production is available to force a journalist to comply with a valid, upheld subpoena. There are no reported cases concerning the kinds of contempt remedies that may be imposed for a journalist's failure to comply. Nevertheless, Arizona cases discussing contempt proceedings generally indicate that civil, not criminal, contempt proceedings could be initiated against a reporter who fails to comply with an order enforcing a valid subpoena.

Cohen , 15 Ariz. There are no recent examples of reporters being fined for refusing to comply with subpoenas. There are no recent examples of reporters who went to jail rather than disclose the names of confidential sources or information. The authors of this outline are aware of no instance in which any criminal contempt sanctions have been imposed on reporters in Arizona for failing to comply with a valid, upheld subpoena.

In Arizona, discretionary interlocutory appeals are called "special actions. No strict time limits govern the time for initiating special actions. A special action brought in an appellate court is initiated by filing a petition similar in form to an appellate brief. Special actions are different than direct appeals, which may be brought only from final, appealable orders and judgments.

Discovery rulings, including orders granting or denying a motion to quash, are generally not considered final, appealable orders.

The Arizona Court of Appeals has accepted special action jurisdiction in cases raising issues involving the application of the Media Subpoena Law. See Reinstein , Ariz. Special action relief may be sought where a trial court orders a party to divulge privileged material, or refuses to protect allegedly confidential or privileged information.

Arizona State Tax Court , Ariz. Superior Court Segrave , Ariz. Scottsdale Publ'g, Inc. Civil contempt citations can be appealed by special action only. Sheldon H. Weisberg and Paul G. Ulrich, eds. Pace , Ariz. Special actions are, by their nature, expedited proceedings. Nevertheless, "for cause shown," the appellate may order acceleration of any special action procedures. For orders granted by a superior court, a special action should be filed in the intermediate appellate court for the division in which the superior court is located.

In rare cases, the special action may be filed directly in the Arizona Supreme Court. Final orders and judgments granted by municipal or justice of the peace courts are generally appealable to the Arizona Superior Court, which serves as the appellate court for these tribunals. Presumably, discretionary interlocutory appeals in the form of special actions may be filed in the superior court from orders rendered by municipal or justice of the peace courts.

See R. The petitioner should file a separate application for a stay. In the first instance, the application should be filed in the court that issued the ruling that is being appealed from. Division One of the Arizona Court of Appeals located in Phoenix will not consider a stay application unless and until an application has been heard and denied by the lower court.

If a stay from the Court of Appeals is necessary, the petitioner can seek a stay under R. These rules provide that the appellate court may grant an interlocutory stay, either ex parte or after notice and hearing, in the same manner and subject to the same limitations that govern the issuance of temporary restraining orders and preliminary injunctions under Ariz. There is no statutory or case law addressing whether the standard applied to a stay application is different in media cases, or whether a stay is more likely to be granted in such matters.

The application of a privilege is a question of law, subject to de novo review. No statutory or case law addresses this issue in the context of cases involving the reporter's privilege.

Nevertheless, Arizona recognizes the exception to mootness for cases capable of repetition but evading review. The Rules of Procedure for Special Actions do not appear to impose any limits on the scope of relief that may be afforded in special action proceedings. The authors of this outline are unaware of any instances in which the federal Privacy Protection Act, 42 U. The Act, passed in , makes illegal the search and seizure of items in a newsroom, except in limited circumstances.

While it does not provide an absolute privilege from subpoenas, it indicates an effort on the part of Congress to protect the confidentiality of newsworthy information gathered for publication. The Act "recognizes. There are no statutory provisions and no reported cases that address the media's recourse when third-party subpoenas are used in an attempt by others to discover a reporter's source.

Skip to content Skip over table of contents to continue reading article Table of contents for Arizona Reporter's Privilege Compendium I. Authority for and source of the right A. Shield law statute B. State constitutional provision C. Federal constitutional provision D. Other sources III. Scope of protection A. Generally B. Absolute or qualified privilege C. Type of case 1. Civil 2. Criminal 3.

Grand jury D. Reporter's personal observations H. Media as a party I. Defamation actions IV. Who is covered A. Statutory and case law definitions 1.

Traditional news gatherers a. Reporter b. Editor c. News d. Photo journalist e. Others, including non-traditional news gatherers B. Whose privilege is it? Procedures for issuing and contesting subpoenas A.

What subpoena server must do 1. Service of subpoena, time 2. Deposit of security 3. Filing of affidavit 4. Judicial approval 5. Service of police or other administrative subpoenas B. How to Quash 1. Contact other party first 2.

Filing an objection or a notice of intent 3. File a motion to quash a. Which court? Motion to compel c. Timing d. Language e. Additional material 4.

In camera review a. Necessity b. Consequences of consent c. Consequences of refusing 5. Briefing schedule 6. Amicus briefs VI. Substantive law on contesting subpoenas A.

Burden, standard of proof B. Elements 1. Relevance of material to case at bar 2. Material unavailable from other sources a. How exhaustive must search be? What proof of search does a subpoenaing party need to make? Source is an eyewitness to a crime 3. Balancing of interests 4.

Subpoena not overbroad or unduly burdensome 5. Threat to human life 6. Material is not cumulative 7. Other elements C. Waiver or limits to testimony 1. Is the privilege waivable?

Elements of waiver a. Disclosure of confidential source's name b. Disclosure of non-confidential source's name c. Partial disclosure of information d. Other elements 3. Agreement to partially testify act as waiver? What constitutes compliance? Newspaper articles B. Broadcast materials C. Testimony vs. Non-compliance remedies 1. Civil contempt a. Fines b. Jail 2. Criminal contempt 3.

Other remedies VIII. Appealing A. Timing 1. Interlocutory appeals 2. Expedited appeals B. Procedure 1. To whom is the appeal made? Stays pending appeal 3. Nature of appeal 4. Standard of review 5. Addressing mootness questions 6. Relief IX. Other issues A. Newsroom searches B. Separation orders C. Third-party subpoenas D. The source's rights and interests. Reporter's Privilege Compendium David J. Compare II.

Authority for and source of the right Compare A. Shield law statute Arizona has two statutes that protect reporters from third-party discovery. The Arizona Media Subpoena Law states: A subpoena for the attendance of a witness or for production of documentary evidence issued in a civil or criminal proceeding and directed to a person engaged in gathering, reporting, writing, editing, publishing or broadcasting news to the public, and which relates to matters within these news activities, shall have attached to it an affidavit of a person with a direct interest in the matters sought which states all of the following: Each item of documentary and evidentiary information sought from the person subpoenaed.

That the affiant or his representative has attempted to obtain each item of information from all other available sources, specifying which items the affiant has been unable to obtain. The identity of the other sources from which the affiant or his representative has attempted to obtain the information. That the information sought is relevant and material to the affiant's cause of action or defense.

That the information sought is not protected by any lawful privilege. That the subpoena is not intended to interfere with the gathering, writing, editing, publishing, broadcasting and disseminating of news to the public as protected by the first amendment, Constitution of the United States, or by article II, section 6, Constitution of Arizona.

A subpoena served on a person described in subsection A without the required affidavit attached to it has no effect. If the affidavit is controverted or a motion to quash the subpoena or for a protective order is filed by the person subpoenaed, the command of the subpoena shall be postponed until a hearing is held and the court enters an order.

After the hearing the command of the subpoena shall be carried out in accordance with the order of this court. This section does not apply to a subpoena for the attendance of a witness or the production of documentary evidence issued by or on behalf of a grand jury or a magistrate during an investigative criminal proceeding.

Compare B. State constitutional provision The Arizona Constitution does not have an express shield law provision, and one has not been implied from its free speech provision. Compare C. Federal constitutional provision In Bartlett , the Arizona Court of Appeals recognized a qualified First Amendment privilege for the protection of confidential information.

Compare D. Other sources We have found no other state-law based sources of the reporter's privilege in Arizona. Compare III. Scope of protection Compare A. Absolute or qualified privilege The Arizona Shield Law provides an absolute privilege for confidential information or sources. Type of case Compare 1. Civil On its face, the Arizona Shield Law makes no distinction between civil and criminal proceedings.

Compare 2. Criminal The Arizona Shield Law applies to criminal proceedings. Compare 3. Grand jury The Arizona Shield Law applies to proceedings "before any jury, inquisitorial body or commission. Compare E. Compare F. Compare G. Reporter's personal observations The Arizona Shield Law does not expressly protect reporters who personally witness criminal activity.

Compare H. Media as a party There is no statute or case law addressing the status of the reporter's privilege where the media is a plaintiff or defendant. Compare I. Defamation actions There is no statutory or case law addressing this issue. Compare IV. Who is covered In Matera , the Arizona Court of Appeals held that the Arizona Media Subpoena Law applies only "to persons who gather and disseminate news on an ongoing basis as part of the organized, traditional, mass media. Compare A.

Statutory and case law definitions Compare 1. Traditional news gatherers Compare a. Reporter The Arizona Shield Law expressly applies to "[a] person engaged in newspaper, radio, television or reportorial work, or connected with or employed by a newspaper, radio or television station," where the person is compelled to testify or disclose "the source of information procured or obtained by him for publication in a newspaper or for broadcasting over a radio or television station with which he was associated or by which he is employed.

Upon closing any record the court shall state the reason for the action, including a reference to any statute, case, rule or administrative order relied upon. Pursuant to Ariz. In the context of discovery, materials that are requested and obtained are not public until they are introduced as evidence or filed with the clerk of court.

See Lewis R. The media may access voir dire and may obtain a written transcript of the proceedings, but it is prohibited from photographing jurors at any time.

Grand jury proceedings are confidential pursuant to Ariz. The media is not permitted to interview trial participants while the proceedings are ongoing. If a juror consents, the media may interview that individual after the jury has been discharged.

A court proceeding relating to child abuse, abandonment or neglect that has resulted in a fatality or near fatality is open to the public, subject to the requirements of E of this rule and A. Anyone who attends a hearing involving a minor is prohibited from disclosing personally identifiable information about the minor outside of the proceedings. Failure to abide by this rule shall be deemed contempt of court.

If a proceeding has been closed to the public, an interested party may ask the court to reconsider its decision and open the proceedings. Wideman v. Garbarino , P. There is no explicit prohibition on public access to matters involving testimony by a minor. As set forth in the other sections, however, a court may prohibit camera coverage to protect the best interest of a witness. No reported decisions. Tribal courts often have their own rules of procedure, which would be the best reference for this information.

There are some 21 federally-recognized Tribes in Arizona. Matters in probate court are subject to the same access provisions as other courts under the Arizona Public Records law. See generally Phoenix Newspapers, Inc. Ellis , Ariz. Under Arizona Supreme Court Rule 50 f , proceedings of the attorney discipline probable cause committee are not open to the public.

Arizona Supreme Court Rule 70 otherwise governs access to information relating to attorney discipline. The media may have standing to challenge gag orders.

See generally Mountain States Tel. The Arizona Supreme Court has recognized that courts may not prohibit the media from reporting on what transpired in open court. See Phoenix Newspapers v. KPNX Broad. Superior Court , P. One of the most common interests cited by parties in support of blocking media access to court proceedings is that coverage will prejudice the fair trial rights of the accused. Courts have shown greater willingness to restrict rather than prohibit camera coverage in certain circumstances.

For example, courts are more willing to limit coverage to protect minors or subjecting a witness to an invasion of privacy. The use of cameras and other technology in the courtroom is governed primarily by Arizona Supreme Court Rules and Rule relates to camera coverage, and explains that an appropriately submitted camera request should be granted unless the court makes specific, on-the-record findings that there is a likelihood of harm arising from one or more of the following factors, and that the harm outweighs the benefit of coverage to the public:.

The impact of coverage upon the right of any party to a fair hearing or trial; B. The impact of coverage upon the right of privacy of any party, victim, or witness; C. The impact of coverage upon the safety and well-being of any party, victim, witness, or juror; D.

The likelihood that coverage would distract participants or that coverage would disrupt or detract from the dignity of a proceeding; E. The adequacy of the physical facilities of the court; F. The timeliness of the request; G. Whether the person making the request is engaged in the dissemination of news to a broad community; and H.

Any other factor affecting the administration of justice. With regard to personal recording devices, Rule h provides that a person may use such a device, but must give notice to the court.

A person is not required to submit a request to use a personal recording device. Recording devices, including cameras, may not be used while the judge is off the bench. If requesting camera coverage, one of the most essential procedural issues is to submit the request in a timely fashion.

A court may deny the request on this basis alone, and a media organization should ensure that any camera request is submitted within the timeframes mandated by the rules e.

Camera crews and other media representatives present in the court should wear professional attire at all times. Respect for the proceedings and general decorum are taken seriously.

Introduction: Access rights in the jurisdiction A. The roots of access rights B. Overcoming a presumption of openness C. Procedural prerequisites to closure II. Procedure for asserting right of access to proceedings and records A.

Media standing to challenge closure B. Procedure for requesting access in criminal cases C. Procedure for requesting access in civil matters D. Obtaining review of initial court decisions III. Access to criminal proceedings A. In general B. Pretrial proceedings C. Criminal trials D. Post-trial proceedings E.

Appellate proceedings IV. Access to criminal court records A. Arrest records C. Dockets D. Warrants, wiretaps and related materials E. Discovery materials F. Pretrial motions and records G.

Trial records H. Post-trial records I. Appellate records J. Other criminal court records issues V. Access to civil proceedings A. Pre-trial proceedings C. Trials D. Appellate proceedings VI. Access to civil records A. Dockets C. Discovery materials D. Pre-trial motions and records E.

Trial records F. Settlement records G. Post-trial records H. Appellate records I. Other civil court records issues VII. Jury and grand jury access A. Access to voir dire B. Juror identities, questionnaires and other records C. Grand jury proceedings and records D. Interviewing jurors VIII. Proceedings involving minors A.

Delinquency B. Dependency C. Other proceedings involving minors D. Prohibitions on photographing or identifying juveniles E. Minor testimony in non-juvenile courts IX. Special proceedings A. Tribal Courts in the jurisdiction B. Probate C. Competency and commitment proceedings D. Attorney and judicial discipline E. Immigration proceedings F. Other proceedings X.

Restrictions on participants in litigation A. Media standing to challenge third-party gag orders B. Gag orders on the press C. Gag orders on participants D. Interviewing judges XI. Other issues A. Interests often cited in opposing a presumption of access B. Cameras and other technology in the courtroom C. Tips for covering courts in the jurisdiction. Introduction: Access rights in the jurisdiction Compare A.

Compare B. Compare C. Before disallowing camera coverage of a court proceeding, a court must make specific, on-the-record findings that there is a likelihood of harm arising from one or more of the following factors, and that the harm outweighs the benefit of coverage to the public: The impact of coverage upon the right of any party to a fair hearing or trial; The impact of coverage upon the right of privacy of any party, victim, or witness; The impact of coverage upon the safety and well-being of any party, victim, witness, or juror; The likelihood that coverage would distract participants or that coverage would disrupt or detract from the dignity of a proceeding; The adequacy of the physical facilities of the court; The timeliness of the request; Whether the person making the request is engaged in the dissemination of news to a broad community; and Any other factor affecting the administration of justice.

Compare II.