Riverside Law Group obtains appellate victory on Reporter Shield & Privilege law
January 10, 2023
Riverside Law Group, PPLC's appellate attorneys Casey Bruner and Asti Gallina obtained a victory for Washington's Reporter Shield & Privilege law in a new decision from Division III of the Court of Appeals for the State of Washington.
Washington's Reporter Shield & Privilege law precludes any court or tribunal in the State of Washington from compelling any news or information obtained by a reporter acting in his or her capacity as a journalist. In the case, a plaintiff in a defamation matter attempted to subpoena a local media and journalism company for the information the obtained in reporting on the story. The media company asserted the privilege but the trial court erroneously found the information was not protected from disclosure. Division III reversed the trial court and held the information was protected.
The Court of Appeals reiterated the high standard of Washington's Reporter Shield Law. The Court stated that in order to overcome the privilege, the party seeking the information must, among other things, prove that the claim cannot succeed and would fail without getting the information. The Court explained:
"Courts construing the second factor—critical or necessary—require a party to
show “that the claim for which the information is to be used ‘virtually rises or falls with
the admission or exclusion of the proffered evidence.’” In re Application to Quash
Subpoena to Nat’l Broad. Co., 79 F.3d 346, 351 (2d Cir. 1996) (quoting United States v.
Marcos, No. 87 CR 598, 1990 WL 74521, at *3 (S.D.N.Y. June 1, 1990)). “‘The test is
not merely that the material be helpful or probative, but whether or not . . . the action may
be presented without it.’” Baker v. Goldman Sachs & Co., 669 F.3d 105, 108 (2d Cir.
2012) (alteration in original) (quoting In re Subpoena Duces Tecum to Am. Broad. Cos.,
189 Misc. 2d 805, 808, 735 N.Y.S.2d 919 (N.Y. Sup. Ct. 2001)). We adopt this
heightened standard here."
The decision protects, strengthens, and clarifies the Reporter Shield Law in the State of Washington. The decision is beneficial to all reporters in the state and is a step in the right direction for protecting the freedom of the press.
For more information regarding Riverside Law Group, PLLC's media, defamation, and First Amendment litigation practice, contact Casey Bruner at CMB@Riverside-Law.com.