Although there is necessarily some give and take between reporters and their sources, reporters should be cautious about discussing their news gathering activities or previously published articles with lawyers or other individuals interested in that information. The lawyer may be engaging in discussion with the reporter to establish a basis for claiming that the reporter has waived any privilege under the shield statute or under the First Amendment by revealing supposedly confidential information.
If a reporter is served with a subpoena, the reporter should immediately contact a supervising editor. (Don’t tuck the subpoena into a drawer and wait until the day before your appearance is required to let your editor know!) Time is of the essence, because certain subpoenas can be dispatched through service of an objection under the N.C. Rules of Civil Procedure, but that can only be done if the reporter takes action within 10 days. The reporter and editor should promptly contact the newspaper’s attorney. Remember that subpoenas for testimony (but not for documents) in state court actions may be served by a telephone call from the sheriff’s department.
If a reporter refuses a judge’s order to testify, the reporter or her newspaper may be sentenced to civil or criminal contempt and/or subjected to jail time or fines. In an extreme case, which has never occurred in North Carolina, a reporter could be ordered to jail until he or she agrees to provide the information sought.
If a reporter breaks a promise of confidentiality to a source, he should be mindful that courts in some jurisdictions have permitted a confidential source to sue reporters and publications that reveal the source’s identity in violation of a pledge of confidentiality. Those cases have been based on breach of contract, promissory estoppel and other theories.