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Reporter’s First Amendment protections apply to subpoena in civil action

Federico v. Lincoln Military Housing, LLC
Slip Copy 2014 (unpublished)

by Gregory S. Emrick, Associate
Semmes, Bowen & Semmes (

Available at: 2014 WL 3962823

Plaintiffs, former residents of Military Housing filed suit against Defendants, who had provided the housing by Agreement with the United States Military, for alleged injuries and damage arising from mold exposure. The subject matter of the litigation garnered media attention, including from the local television station WTKR and its reporter Laurie Simmons (jointly, “WTKR”). During the course of the litigation, Defendants issued subpoenas to WTKR to obtain documentation created as part of the new investigation. WTKR filed a motion to quash the subpoenas, based on the First Amendment protections provided to reporters.

Judge Miller, the United States Magistrate Judge for the United States District Court, Eastern District of Virginia, first reviewed the specific language of the subpoenas, holding that the general language was overly broad. The subpoenas, by their terms, required the production of documentation related to any “Home” owned or managed by the defendants, which would have required the production of information “far beyond the scope of WTKR’s localized coverage…[and] far outside the bounds of relevance.” Id.

After limiting the scope of the subpoenas to the subject matter of the litigation, Judge Miller then addressed the First Amendment Argument. The court noted the judicial guidance on the application of the First Amendment protections provided to reporters was not “notable for its clarity.” Id., citing United States v. Lindh, 210 F. Supp.2d 780, 782 (E.D.Va.2002). Judge Miller noted that the Supreme Court’s guidance, written by Justice Powell, was largely limited to:

[I]f the newsman is called upon to give information bearing only a remote and tenuous relationship to the subject of the investigation, or if he has some other reason to believe that his testimony implicates confidential source relationship without a legitimate need of law enforcement, he will have access to the court on a motion to quash ....

Branzburg v. Hayes, 408 U.S. 665 (1972). This statement by Justice Powell identified the protection provided by the First Amendment to reporters. Subsequently, the Fourth Circuit, following the Branzburg guidance established a three-part test to determine the protections provided in the context of criminal cases. LaRouche v. National Broadcasting Co., Inc., 780 F.2d 1134 (4th Cir.1986). LaRouche held that a reporter’s testimony would be required if:

(1) whether the information is relevant, (2) whether the information can be obtained by alternative means, and (3) whether there is a compelling interest in the information.

Federico, quoting LaRouche, 780 F.2d at 1139. However, the Fourth Circuit had not had the opportunity to determine if the LaRouche factors applied to civil actions, though in the case of United States v. Sterling, 724 f.3d 482 (4th Cir. 2013), the Court had noted a difference between criminal and civil actions, stating, ““[s]ubpoenas in criminal cases are driven by the quite different and compelling public interest in effective criminal investigation and prosecution, an interest that is simply not present in civil cases.”

Judge Miller proceeded to analyze the purpose behind the First Amendment protections as indicated in the criminal cases, as well as the importance placed on the public role of the media. Judge Miller concluded that the LaRouche test applied to civil actions as well. In applying the three-part analysis, the court held the information sought was relevant, and because the documents were primarily video and interviews of the residence, it could not be obtained elsewhere. Finally, there was a compelling interest in producing the information, since many of the videos and interviews were conducted contemporaneously with the complaints of mold and injury, and could greatly affect the outcome of the case.

The Defendants, however, had also sought social media and blog posts by various WTKR employees. The court held there was no compelling interest in that material. The court also quashed any request that would have required the production of communications with non-parties, including state or other government agencies.

The court granted the motion to quash in part, and denied it in part.