Civil procedure update. Need for Evidence Overcomes Qualified Reporter's Privilege

• Pages: 25-25
• Date: 01 January 2026
• Published date: 01 January 2026
• Author: Alexander B. Avtgis
• Subject Matter: Civil Law

Published in Litigation News Volume 51, Num ber 2, Winter 202 6. © 2026 by the Amer ican Bar Ass ociation. Rep roduced with pe rmission. A ll rights reser ved. This info rmation or any po rtion thereof

may not be copied o r disseminated i n any form or by any means o r stored in an elec tronic databas e or retrieval system w ithout the expres s written consen t of the American Ba r Association .

n a case highlighting how Privacy Act rights can pierce

qualif‌ied First Amendment privileges, a federal district

court issued a civil contempt order against a reporter who

refused to reveal the identity of sources who supplied

allegedly leaked materials. ABA Litigation Section lead-

ers counsel practitioners representing news organizations and

reporters to fully investigate the extent of any applicable state

shield laws and to caution clients to refrain from featuring

leaked information that is nonvital to the storytelling.

In Chen v. Federal Bureau of Investigation, the plainti

f‌iled a Privacy Act lawsuit against the FBI, the Department of

Defense, and two other federal agencies in the U.S. District

Court for the District of Columbia, alleging they leaked mate-

rials—products of a years-long investigation into comments

made by the plainti on U.S. immigration forms—to then–

Fox News Network correspondent Catherine Herridge. After

“scores of document requests, interrogatories, and requests

for admission,” as well as “18 depositions of current and

former government employees,” “over a dozen third-party

subpoenas,” and “declarations from 22 government person-

nel,” the plainti still lacked direct evidence of the source of

the leaked materials. The plainti therefore served deposition

subpoenas on both Fox and Herridge, who in response moved

to quash the subpoenas and asserted their qualif‌ied First

Amendment privilege.

Applying a framework crafted over 40 years ago by the

U.S. Court of Appeals for the District of Columbia Circuit

in Zerilli v. Smith, the district court concluded that the two

guideposts of “centrality” and “exhaustion” weighed heavily

in the plainti’s favor. As to the f‌irst factor, the court observed

that the identity of the individuals who leaked information

was central to the plainti’s claim. Second, the court noted

that the plainti resorted to asking Herridge only after she

had exhausted “every reasonable alternative source of infor-

mation” to uncover the leaker’s identity.

After considering additional First Amendment and com-

mon-law newsgathering privilege arguments, the district court

denied Herridge’s motion to quash and ordered Herridge to

“divulge her source and answer questions about any non-

privileged other matters relevant to the plainti’s Privacy Act

claim.” Herridge sat for the deposition, but she declined to

disclose her source’s identity or provide information on when

and in what form she received the materials.

The district court held Herridge in civil contempt and

imposed a f‌ine of $800 per day until she complied with the

previous order. “[T]o provide [her] ample room to litigate

[her] assertions of privilege fully in the court of appeals before

being coerced into compliance,” the court stayed the contempt

sanction for 30 days, or until completion of the appeal. At

the time this article was written, the parties were still brief‌ing

Herridge’s appeal before the appellate court.

Given the “not tremendous” amount of the daily f‌ines

imposed, in conjunction with the temporary stay, the sanction

is a “soft contempt order, done more as a matter of procedure

than a matter of pure punishment,” says John B. Strasburger,

Houston, TX, Co-Chair of the Litigation Section’s Commercial

& Business Litigation Committee.

The plainti “had literally gone through several years of

discovery and sought the information through numerous other

avenues before seeking to take the reporter’s deposition and

asking where she obtained the information,” says John Libby,

Los Angeles, CA, Co-Chair of the Newsletter Subcommittee

of the Section’s Pretrial Practice & Discovery Committee. In

the district court’s words, the deposition subpoena came at the

end, and not the beginning, of a “f‌ive-year odyssey.”

“It’s ultimately a very, very tough call” weighing “people’s

rights to face their accusers against the free f‌low of informa-

tion,” observes Robin Nunn, Washington, DC, Co-Chair of

the Distance Learning Subcommittee of the Section’s Pretrial

Practice & Discovery Committee. Legal f‌ights, like this, which

pit “protecting sources and information” against “subpoenas

and government searches and seizure,” emerge “quite fre-

quently” and are a “sort of ongoing debate in certain commu-

nities,” says Nunn.

With no federal established limit on compelled disclo-

sures, a “patchwork” of state laws has emerged where dier-

ent sources, subject to dierent standards, might be revealed

depending on which laws are in play. About 40 states and the

District of Columbia have shield protections for sources and

materials. Attorneys dealing with these issues should identify

their state’s privilege laws and “seek to understand the scope

and strength of those laws so you can appropriately advise

your clients in case a request for collection of information

comes across your desk,” suggests Nunn.

On behalf of news organizations, counsel should “[b]eat[]

the drum of exhaustion all the time,” Strasburger urges. When

someone asks a reporter to disclose their sources, “make it

clear that they better spend a lot of time and treasure trying to

get it elsewhere,” he maintains.

On the other hand, Strasburger agrees that counsel should

steer news organization clients from, in the district court’s

words, “mere ornamentation” in reporting that does not aect

the substance. As the court emphasized, including “evocative

(and click-inducing) details” that do not substantially improve

a piece’s informational value, otherwise known as “gilding

the lily,” risks opening the door for a Privacy Act claim and

discovery into the potential leaker’s identity. “If you are using

information as part of your story that you really don’t want to

give up your source for, make sure it’s critical to the story that

you’re telling,” Strasburger says.

Need for Evidence Overcomes

Qualif‌ied Reporter’s Privilege

By Alexander B. Avtg is, Litigation News Contributi ng Editor

WINTER 202 6 • VOL. 51 NO. 2

25 | ABA LITIGATION SECTIO N

CIVIL PROCEDURE UPDATE