Considerations when a media newsroom receives a subpoena, either requesting testimony or the production of documents, in situations where the media is a third party (neither a plaintiff nor defendant in the case).
Media can choose to submit to a subpoena or resist (seek to have it quashed). The court may quash or modify a subpoena "if it is unreasonable and oppressive" or postpone approval of the subpoena until the party has paid the reasonable cost for the media to produce the document or pay for attendance in court and mileage as allowed by law. (Indiana Rules of Trial Procedure - T.R. 45)
If the newsroom decides to resist the subpoena, the judge should be expected to consider the media arguments under legal tests spelled out in one of two cases depending upon whether the case is civil or criminal.
That test requires the party to show that: (1) the information is "clearly material and relevant" to the party's claim or defense; (2) the information is "critical to the fair determination of the cause," and (3) the party has "exhausted all other sources for the same information." Id . at 151.
Discovery: (1) must be a sufficient designation of the items sought to be discovered (particularity); (2) items requested must be material to the defense (materiality or relevance); and (3) if particularity and materiality requirements are met, the trial court must grant the request unless there is a showing of "paramount interest" in non-disclosure.
In WTHR-TV, the Supreme Court ordered the television station to give copies of its unaired tapes of an interview with a suspect to the defense attorney, but the Court left the door open for a different outcome with reporters' notebooks and other records (footnote 8 in the case). WTHR-TV, 690 N.E.2d at 25.
The court should also consider whether an attorney is involved in a "fishing trip" when making a request for records from the media. The Indiana Supreme Court denied a subpoena request for lack of reasonable particularity and materiality in WTHR-TV v. State of Indiana v. Milam, 690 N.E.2d 1174 (1998). A woman, who was on trial for killing her husband, in a pretrial motion requested the trial court to order the newspaper to preserve and produce all news footage regarding the husband's death, and regarding the questioning, apprehension, arrest and arraignment of the woman. The trial court's granting of this motion was overturned by the Supreme Court.