A confidential conversation between a reporter and a source was played in court. Why that’s a problem.
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I testified in court last week. It was a career first for me that, while fascinating, left me deeply troubled.
I’ve spent the last two decades of my career trying hard to avoid the experience. Like most journalists, I fervently believe reporters and editors shouldn’t be put on the stand. We should also not be forced to disclose confidential information between ourselves and our sources.
Still, despite EastIdahoNews.com’s best efforts to avoid legal proceedings, we found ourselves embroiled in a four-day defamation trial between Idaho Falls businessman Kris Taylor and Pocatello attorney Patrick Davis over a quote from an article. During the trial, a recording of an on-the-record conversation between one of our reporters and her source was played.
That action highlights a problem in the Gem State. If people and their attorneys want to find out what a reporter and a source are talking about — whether on or off the record — there is a chance they can do it through an Idaho court.
RELATED | Jury issues decision in defamation trial centered on comments made to East Idaho News
How East Idaho News got involved
Kaitlyn Hart, our crimes and courts reporter, wrote the article at the center of this controversy — an article that I approved. It dealt with the dismissal of embezzlement charges against Kevin Ball, a businessman who had retained Davis as his attorney.
As is typical with this kind of story, Hart contacted Ball’s attorney for a statement. He was willing to give one on the record. We recorded the interview.
Among other things, Davis alluded to a “group of dudes in Idaho Falls” that “partner up with somebody who they see as unsophisticated, and they’ll embroil them in criminal proceedings to bilk them out of their interest in a company.”
The article received about 8,200 pageviews over three days. It was then promptly buried by other news.
Taylor, whose name was not mentioned in the article, told a jury during the trial that he believed he was one of the “group of dudes” referenced in the article. That belief led him to file a defamation lawsuit against Davis in August 2023.
In September of that same year, EastIdahoNews.com received a subpoena from Robby Perucca, an attorney representing Davis. The subpoena demanded we turn over all of our notes, drafts and communication related to the news article, as well as all recordings made with Davis.
We received a second subpoena in October from Vaughn Fisher, the attorney representing Taylor. He asked for the same things but also wanted all email communication between EastIdahoNews.com employees and Ball or Davis, and any email that mentioned the names Kevin Ball, Patrick Davis or Kris Taylor.
In both cases, I firmly but politely refused, telling them that “as a news agency, it is against our policy to release confidential information between reporters and their sources.” I told them we would “vigorously fight a subpoena” in the court of law and the court of public opinion.
That did not satisfy the attorneys. After being pressed further for the information, we retained Steve Wright, our lawyer, to advocate on our behalf.
Wright informed us of two things. The first was that Idaho did not have shield laws — legislation designed to protect reporters from being forced to disclose confidential information or sources in state court. The second was that due to circumstances specific to this case, and a specific loophole in the law, if we fought the subpoena in court, we would likely lose and be forced to produce the information.
We were loath to release the information to Taylor’s attorney. However, after negotiating, we agreed that if Davis requested a copy of his recording with Kaitlyn, we would give it to him since he was the original source. Fisher was then free to subpoena Davis for a copy of that recording.
EastIdahoNews.com received two more subpoenas late this year. They asked for a tremendous amount of data about our circulation, social media, commenting systems and business practices. The data request was in preparation for a representative of EastIdahoNews.com to be deposed under oath. That’s my responsibility as editor.
We agreed to the deposition under the conditions that I would not speak about anything in the recording or talk directly about our interactions with sources. We also wouldn’t discuss our business’s proprietary operations. In essence, we agreed to discuss the size of EastIdahoNews.com in relation to other media in Idaho and how many people read and commented on the 2022 article.
We were then required to testify in court to essentially the same information given in the deposition. Wright accompanied us to object if other questions were posed to us. Thankfully, they were not.
During the trial, I spoke solely about circulation and the article’s reach. Ultimately, my testimony was used to help determine Taylor’s requested damages. He asked for $100 to $300 per pageview, which, given the reach, was about a $800,000 to $2.4 million ask.
At the end of the trial, the jury found Taylor did not have sufficient evidence to prove he had been defamed by Davis’ quote in the article. Read more about the trial here.
Why it matters
In the grand scheme of things, a dispute over a damaged reputation doesn’t mean much to the vast majority of our readers. The article reached a fraction of our audience, and most of the readers spent less than two minutes on the page.
The consequences of the dispute are much greater, though, because it exposed how easy it is for attorneys to turn a perceived journalistic privilege on its head.
Every day, Idaho media outlets get hundreds of news tips about topics ranging from the mundane to the controversial. A commonality among these tips is the basic understanding that whatever information is not published stays between reporter and the source.
An inherent trust between journalists and sources allows for whistleblowers or victims to come forward and tell their stories about negative situations in our communities. Imagine how many fewer people would come forward if they knew a subpoena could potentially out them to the public.
Thankfully, situations where media are called to testify or give up information about sources are still rare.
Wright told EastIdahoNews.com that “on occasion a party to a high-profile lawsuit may want a journalist or reporter to testify about their news-gathering activities or to identify a source.” But he says courts do realize the damage that can be done.
“These are precisely the activities that are most protected because the courts recognize that compelling a journalist or reporter to reveal this information would interfere with the flow of information to the public,” Wright said. “For example, if a reporter or journalist could be forced to disclose this information, sources would be hesitant to talk. Additionally, reporters and journalists could not freely seek information that helps hold accountable those who are in power. As a result, the public would ultimately suffer.”
Still, despite this hesitation by the courts, Idaho Press Club representatives say they are seeing a rise in journalist subpoenas from attorneys across the state, including in eastern Idaho.
“The Idaho Press Club is deeply concerned about the rise in subpoenas of journalists in our state,” club President Melissa Davlin said. “Subpoenas have a chilling effect on sources and whistleblowers, and fighting subpoenas take up time and resources that should be spent reporting the news. Getting a shield law in Idaho is a priority for us.”
What needs be done
The good news about the growing number of subpoenas is that it’s spurring media agencies throughout the state to push for a shield law.
EastIdahoNews.com is among those agencies that believe journalists need better legal protection when having conversations with sources. We don’t ever want to experience our conversations being played out loud in open court again. We similarly don’t ever want to be back on a witness stand.
We will continue to aggressively fight against any subpoena issued seeking confidential material. That is a sentiment I am sure is echoed in every newsroom in the state.
For good journalism to continue happening in Idaho, the public needs to have confidence that they can approach reporters without the chance of an attorney forcing disclosure through a subpoena.
As your local media, we strongly encourage you to speak with your local legislators and bring this topic to their attention. You can find their information here.
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