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Journalist Privilege: When Should Sources Be Revealed

There are logically a variety of reasons the journalists should reveal their sources, just as there are reasons they should keep those sources confidential. As a Boston personal injury attorney, my analysis is on the legal argument associated with compelling a journalist to reveal sources for the purpose of litigation.

This issue arises seldom in regards to litigation, but when it does come up, it tends to carry significant consequence. That's because when journalists are involved, the case must at least be newsworthy. Think: "medical device hazards disclosed 15 months after internal memo circulated, with 100 deaths resulting during that period." There are countless scenarios.

In assessing the legal argument, let's first consider the importance of the privilege. As a society, we highly value freedom of the press. We want journalists, as opinionated as many may be in this day and age, to have the freedom to investigate whatever they wish, without risk that they will be arrested or prosecuted in some capacity, thereby destroying their careers.

We accept that sometimes, journalists will learn of information important to society as a whole but from a source whose life would be destroyed if the source's identity were divulged. The journalist must build trust with that source--trust that the journalist will not reveal the source's identity. If there were no journalist privilege, no protection of the source, then sources would tend to not reveal information which we deem critical to our society as a whole.

There are some exceptions to the journalist privilege. It is well settled and clear, as recently restated by a U.S. District Court, that "[t]o overcome that privilege, a party must show that the summons of a journalist to a deposition is not frivolous, that the information sought is critical to the merits of the claim at issue, and that other sources for the information are not available."

The process to identify the source would be to subpoena the party to reveal the source. This would be a subpoena for deposition or hearing. The issue of privilege would be brought before the court when the other side files a motion to quash the subpoena and the matter is set for hearing.

The lesson here? If a news report provides that an undisclosed source is the ONLY source of information critical to a case, and a good faith effort has been made to find the same information from another source, the journalist may be compelled to reveal the source. The privilege is strong, but there is some exception when justice requires it.

If you have questions about your personal injury case, call our office at (866) 995-6663 and speak with a Massachusetts personal injury attorney today for free.

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