By statute, a reporter, as defined below, is privileged in a non-adjudicative proceeding to decline to testify concerning either the source or content of information that the reporter obtained within the scope of his or her professional activities.82.1 Further, a reporter is privileged in an adjudicative proceeding, i.e., any judicial or quasi-judicial proceeding determining the rights of parties but excluding any grand jury proceeding, to decline to testify concerning the source or content of information obtained within the scope of the reporter’s professional activities if the reporter states under oath that the disclosure of the information would violate an express or implied understanding with the source under which the information was originally obtained or would substantially hinder the reporter in the maintenance of existing source relationships or the development of new source relationships.83
The term “reporter” includes any journalist, scholar, educator, polemicist or other individual who either: (a) at the time the person obtained the information that is sought was earning his or her principle livelihood by, or in each of the preceding three weeks or four of the preceding eight weeks had spent at least twenty hours engaged in the practice of, obtaining or preparing information for dissemination with the aid of facilities for the mass reproduction of words, sounds or images in a form available to the general public, or (b) obtained the information that is sought while serving in the capacity of an agent, assistant, employee or supervisor of an individual who qualifies under the definition of a reporter.84
A reporter acts “within the scope of” his or her professional activities when, in any situation, including a social gathering, the reporter obtains information for the purpose of disseminating it to the public. This does not include any situation in which the reporter intentionally conceals from the source the fact that he or she is a reporter and does not include any situation in which the reporter is an eyewitness to or participant in an act involving physical violence or property damage.85
A “source” is any person from whom a reporter obtained information by means of written or spoken communication or the transfer of physical objects, but does not include a person from whom a reporter obtained information by means of personal observation unaccompanied by any other form of communication and does not include a person from whom another person who is not a reporter obtained information, even if the information was ultimately obtained by a reporter.86 Information is protected by the statute even if the source is not confidential.86.1
“Information” means any oral, written or pictorial material and includes, but is not limited to, documents, electronic impulses, expressions of opinion, films, photographs, sound recordings and statistical data.87
To “testify” means to give testimony, provide tangible evidence, submit to a deposition or answer interrogatories.88
Unless disclosure of the content of the information would substantially increase the likelihood that the source of the information would be discovered, the privilege does not prevent a reporter from being required in an adjudicative proceeding to testify concerning the content, but not the source, of information that the reporter obtained within the scope of the reporter’s professional activities if the court determines that the public interest in having the reporter’s testimony outweighs the public interest in keeping the information confidential. In making this decision, the court must take into account the importance of the issue in which the information is relevant, the efforts that have been made by the subpoenaing party to acquire evidence on the issue from alternative sources, the sufficiency of the evidence available from alternative sources, the circumstances under which the reporter obtained the information and the likely effect that disclosure of the information will have on the future flow of information to the public.89
The statutory privilege does not prevent a reporter from being required in an adjudicative proceeding to testify concerning either the source or the content of information obtained within the scope of his or her professional activities if the party seeking to have the reporter testify proves by a preponderance of the evidence that the sworn statement submitted by the reporter is untruthful.90
A person who invokes the statutory privilege may not be required to testify in any proceeding except by court order. If a person invokes the privilege in any proceeding other than a court proceeding, the body or person seeking to have the person testify may apply to the Superior Court for an order requiring the claimant of the privilege to testify. If the court determines that the claimant does not qualify for the statutory privilege, it will order the person to testify.91
If a reporter waives the statutory privilege with respect to certain facts, he or she may be cross-examined on the testimony or other evidence he or she gives concerning those facts but not on other facts with respect to which the reporter claims the privilege.
A reporter does not waive or forfeit the privilege by disclosing to any other person all or any part of the information protected by the privilege.92
Beyond the statutory privilege, Delaware courts have recognized that, under the First Amendment to the Constitution of the United States,93 reporters have a qualified immunity from compelled production of documents or testimony regarding information they obtained while acting as reporters, regardless of whether such information is confidential. When the First Amendment privilege is asserted, the burden shifts to the party seeking to obtain the testimony to demonstrate a compelling need to subordinate the First Amendment right. To meet this burden, the proponent of compulsory process must demonstrate that (i) the reporter has information relevant and material to proof of the claim or offense charged or the defendant’s defense; (ii) there is a compelling need for disclosure sufficient to override the privilege; and (iii) the party seeking the information has unsuccessfully exhausted all other potential sources of information.94
82.1. 10 Del. C. §4321.
83. 10 Del. C. §§ 4322, 4320(1)
84. 10 Del. C. § 4320(3).
85. 10 Del. C. § 4320(7).
86. 10 Del. C. § 4320(5).
86.1. State v. Rogers, 820 A.2d 1171 (2003).
87. 10 Del. C. § 4320(2).
88. 10 Del. C. § 4320(6).
89. 10 Del. C. § 4323(a).
90. 10 Del. C. § 4323(b).
91. 10 Del. C. § 4324.
92. 10 Del. C. § 4325.
93. U.S. Const. am. I.
94. Parson v. Watson, 778 F. Supp. 214 (D. Del. 1991); Fuester v. Conrail, C.A. No. 91C-09-013, slip op. at 4-5, Ridgely, J. (Del. Super. Sept. 16, 1994); Mullen v. Alarmguard of Delmarva, Inc., C.A. No. 90-1 1-40-1-CV, Graves, J. (Del. Super. Mar. 25, 1992) (transcript); State v. Porter, Cr. A. Nos. 1N90-02-1784-1785, Barron, J. (Del. Super. Nov. 30, 1991) (transcript); State v. McBride, Cr. A. Nos. IK-80.05-0058-0059 & 1K-80-06-0227, Wright, J. (Del. Super. May 6, 1981); State v. Cordrey, Cr.A. No. 88-07-000A, Babiarz, J. (Del. Super. Sept. 28, 1988) (transcript); State v. Hall, No. M-88-l0-1948, Fraczowski, J. (Del. Mun. Mar. 8, 1989).
© 2010 David L. Finger