By Jonathan Segal and Thomas R. Burke
Journalists in California must now receive advanced notice if their records are being subpoenaed either directly from them or through a subpoena issued to a third party. California’s new law—an amendment to California Civil Procedure Section 1986.1—was the California Legislature’s unified response to what was seen, by many, to be an abuse of power by federal investigators. The law enhances existing notice requirements for California’s journalists who are protected by the state’s shield law.
The new law, Section 1986.1, requires that at least five days’ notice be given to journalists when subpoenaing records that belong to the journalist or if the records are maintained by third parties. Such records include cell-phone records, web-based email like Gmail or Yahoo Mail, or cloud based data storage like Google Docs, iCloud, Microsoft Skydrive, or Dropbox, commonly used by today’s journalists.
The notice must include “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.” Under the new law, five days’ notice must be given to the journalist and the publisher of the newspaper, magazine, or other publication or station that employs or contracts with the journalist” in both civil and criminal cases 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.”
Before this amendment, anyone issuing a subpoena was required to give reporters, publishers, and broadcasters five days’ notice, absent “exigent circumstances,” before subpoenaing records or requiring their appearance at a proceeding. Section 1986.1 was originally enacted after Tim Crews, a publisher and editor in Northern California, fought a pre-trial criminal subpoena seeking to compel him to disclose the identity of confidential sources. Since then, Section 1986.1’s five-day notice requirement has had a powerful practical effect: many subpoenas are not issued at all or are withdrawn when counsel for the journalist has time to intervene and object and explain how the information being subpoenaed is protected by California’s shield law.
The legislation, SB 558, passed both houses of the California Legislature unanimously, and was signed by Gov. Jerry Brown on Oct. 3, 2013. It was authored and introduced by California State Senator Ted W. Lieu (D. Marina del Ray) and sponsored by the California Newspaper Publishers Association (CNPA). In a press release issued after the bill was unanimously passed, Sen. Lieu observed that “Today’s bipartisan vote makes it clear: California will protect the First Amendment.” Lieu wrote and introduced the bill to address concerns that arose after the federal government secretly obtained records from Associated Press and Fox News. In the aftermath of those incidents, the Justice Department instituted new guidelines to prevent secret acquisition of reporters’ records in possession of third parties. California’s new law mirrors those guidelines.
Jim Ewert, CNPA’s General Counsel, led the effort to have the legislation enacted into law and is thrilled to see this new protection for California’s journalists. “Ever since Section 1986.1 has been on the books, lawyers who seek to subpoena journalists in California are required to give advanced notice before they issue a subpoena. The practical effect of requiring such notice is that media lawyers have time to act to potentially convince the lawyer issuing the subpoena to withdraw it. With this change, a more stringent notice protection is imposed and the law will safeguard against subpoenas that seek access to journalists’ records maintained by third-parties.”
The existing law “prohibits a publisher, editor, reporter, or other person connected with or employed by a newspaper, magazine, or other periodical publication, or by a press association or wire service, from being held in contempt for refusing to disclose the source of any information procured for publication while so connected or employed.” Legislative Digest, SB 558. “The law also prohibits any of those persons from being held in contempt for refusing to disclose any unpublished information obtained or prepared in gathering, receiving, or processing information for communication to the public.” Id.
The law became effective on January 1, 2014.
Jonathan Segal is an associate in the Los Angeles office of Davis Wright Tremaine LLP; Thomas R. Burke is a partner in the firm’s San Francisco office.