Rule 504 Journalist’s Privilege

(a) No Contempt for Non-Disclosure of Sources or Unpublished Information. A publisher, editor, reporter, or other person connected with or employed upon a newspaper, magazine, or other periodical publication, or by a press association or wire service, or any person who has been so connected or employed, shall not be adjudged in contempt by a judicial, legislative, or administrative body, or any other body having the power to issue subpoenas, for refusing to disclose the source of any information procured while so connected or employed for publication in a newspaper, magazine or other periodical publication, or for refusing to disclose any unpublished information obtained or prepared in gathering, receiving or processing of information for communication to the public.

Nor shall a radio or television news reporter or other person connected with or employed by a radio or television station, or any person who has been so connected or employed, be so adjudged in contempt for refusing to disclose the source of any information procured while so connected or employed for news or news commentary purposes on radio or television, or for refusing to disclose any unpublished information obtained or prepared in gathering, receiving or processing of information for communication to the public.

(b) Definitions. As used in this rule:

(1) "Unpublished information" includes information not disseminated to the public by the person from whom disclosure is sought, whether or not related information has been disseminated EVIDENCE CITE AS: NMI R. EVID. EFFECTIVE FEBRUARY 22, 2015 and includes, but is not limited to, all notes, outtakes, photographs, tapes or other data of whatever sort not itself disseminated to the public through a medium of communication, whether or not published information based upon or related to such material has been disseminated.

(2) “Journalist” means the persons specified in subdivision (a) of this rule.

(c) Testimony Under Subpoena Not Waiver. No testimony or other evidence given by a journalist under subpoena in a civil or criminal proceeding may be construed as a waiver of the immunity rights provided by subdivision (a) of this rule.

(d) Five Days Notice Required Before Issuing Subpoena to Journalist. Because important rights of a third-party witness are adjudicated when rights under subdivision (a) of this rule are asserted, except in circumstances that pose a clear and substantial threat to the integrity of the criminal investigation or present an imminent risk of death or serious bodily harm, a journalist who is subpoenaed in any civil or criminal proceeding shall be given at least five calendar days notice by the party issuing the subpoena that his or her appearance will be required.

(e) Requirements for Subpoena to Third Party for Journalist’s Records. To protect against the inadvertent disclosure by a third party of information protected by subdivision (a) of this rule, a party issuing a subpoena in any civil or criminal proceeding to a third party that seeks the records of a journalist shall, except in circumstances that pose a clear and substantial threat to the integrity of the criminal investigation or present an imminent risk of death or serious bodily harm, provide notice of the subpoena to the journalist and the publisher of the newspaper, magazine, or other publication or station operations manager of the broadcast station that employs or contracts with the journalist, as applicable, at least five calendar days prior to issuing the subpoena. The party issuing the subpoena shall include in the notice, at a minimum, an explanation of why the requested records will be of material assistance to the party seeking them and why alternate sources of information are not sufficient to avoid the need for the subpoena.

(f) Findings on the Record Required if Journalist Held in Contempt. If a trial court holds a journalist in contempt of court in a criminal proceeding notwithstanding subdivision (a) of this rule the court shall set forth findings, either in writing or on the record, stating at a minimum, why the information will be of material assistance to the party seeking the evidence, and why alternate sources of the information are not sufficient to satisfy the defendant's right to a fair trial under the Sixth Amendment to the United States Constitution and Section 4 of Article I of the Commonwealth Constitution.

* Revision Committee Note: Rule 504 is modeled on California’s Reporter’s Privilege as set forth in Article 1, Section 2 of the California Constitution, California Evidence Code Section 1070 and California Code of Civil Procedure Section 1986.1. The Committee intends the terms of this privilege to apply broadly to people connected with emerging news sources, such as freelance reporters and bloggers. California case law may be a helpful guide in making such determinations. See e.g., People v. Von Villas, 10 Cal. App. 4th 201, 231-32 (1993) (applying privilege to freelance writer connected with Hustler and Los Angeles magazines); O’Grady v. Superior Court, 139 Cal. App. 4th 1423, 1456-66 (applying the privilege to publishers of news-oriented web sites).

EVIDENCE CITE AS: NMI R. EVID. EFFECTIVE FEBRUARY 22, 2015