American Bar Association
Forum on Communications Law

The Prosecutor's Subpoena and the Reporter's Privilege


Reporters can rest a little easier-thanks to a recent decision by California's highest tribunal. On November 1, 1999, the California Supreme Court held unanimously in Miller v. Superior Court that journalists may not be held in contempt for refusing to respond to a prosecutor's subpoena for unpublished information.1 The California decision strengthens an already powerful reporter's shield law and should serve as a beacon to other jurisdictions.

The Miller decision stems from a jailhouse interview. On March 19-20, 1996, Sacramento television station KOVR broadcast segments of an interview between news reporter Tom Layson and accused killer Anthony Lee DeSoto. Approximately one month later, the district attorney's office issued a subpoena duces tecum for the broadcast as well as for unaired portions of the interview. KOVR submitted the broadcast tapes, but invoked California's shield law2 in refusing to produce the "outtakes." The trial court reviewed the tapes in camera and ultimately ordered KOVR and its news director, Ellen Miller, to provide the prosecution with a full copy of the interview. Miller refused and was found in contempt of court. However, the trial court stayed its order to jail Miller pending appeal. The California Court of Appeal ruled against Miller and upheld the contempt order.3 The appellate court relied on a provision in the California constitution giving the state "the right to due process of law"4 and held that the prosecutor's interests outweighed the reporter's shield law.5 The California Supreme Court reversed the appellate decision.6

The prosecution and the court of appeal relied on two provisions of California's Constitution.7 The first, a "truth-in-evidence" section, provides that the state has a right to present relevant evidence in a criminal proceeding.8 However, this evidentiary provision is explicitly qualified with the following statement: "[n]othing in this section shall affect any existing statutory or constitutional right of the press."9 Consequently, the prosecution turned to a second constitutional provision stating that "the people of the State of California have the right to due process of law."10 The prosecution argued that the state's due process right should expand the evidentiary provision to allow subpoenas of unpublished media material.11 The California Supreme Court soundly rejected this argument.

The supreme court held that California's constitutionally based shield law provides newspersons with an absolute immunity that can only be overcome by a conflicting federal or state constitutional right.12 Nearly a decade ago, in Delaney v. Superior Court, the court held that a defendant has federal due process rights that must be balanced against a journalist's rights under California's shield law.13 But unlike a defendant's rights under the Due Process Clause of the Fourteenth Amendment, the court in Miller found no corresponding federal right for prosecutors.14 In other words, the prosecution, unlike a defendant, cannot draw on the federal Constitution in an attempt to override the state shield law. Moreover, the Miller court found no prosecutorial right to due process in California's Constitution that could outweigh the reporter's privilege.15 The court reached this conclusion unanimously despite the state constitutional provision of a government right to due process.

The supreme court's holding represents a significant departure from the appellate court's interpretation of the government's evidentiary and due process provisions in the state constitution. The supreme court downplayed the government's right to truth-in-evidence provision because it specifically exempts "existing" rights of the press, which include the reporter's shield laws.16 Likewise, the supreme court held that the government's due process provision does not expand the evidentiary right to give prosecutors a means of overcoming the reporter's privilege.17 The court was unwilling to construe a conflict between the general provisions relied on by the state and the specific provisions relied on by the press. Thus, at every turn, the court reaffirmed a newsperson's absolute immunity from contempt, likening it to other privileges (e.g., the attorney-client privilege and the privilege against self-incrimination) that block a prosecutor's path.18

Comparing California to Other Jurisdictions
Incidents like the event that triggered the Miller decision are not isolated. The Reporters' Committee for Freedom of the Press lists reporters who have served time in jail for refusing to submit to government subpoenas.19 For example, in 1996, Miami Herald reporter David Kidwell served fourteen days of a seventy-day jail sentence for contempt because he refused to testify for the prosecution about a jailhouse interview.20 Kidwell was later vindicated when the Florida Supreme Court held that reporters in that state have a privilege from prosecutorial subpoenas for confidential and nonconfidential information.21 More recently, in November, 1999, CBS producer Mary Mapes was held in contempt and ordered jailed by a judge in Texas (where there is no statutory reporter's privilege) because she refused to comply with a prosecutorial request for taped interviews with (now convicted) murderer Shawn Allen Berry. Thus, the threat to newsgatherers of a government subpoena is a real one.

Some judicial analyses of the reporter's privilege from prosecutorial subpoenas start with the U.S. Supreme Court decision in Branzburg v. Hayes.22 But because the plurality opinion in Branzburg left states free to "respond[] in their own way and constru[e] their own constitutions so as to recognize a newsman's privilege, either qualified or absolute,"23 the discussion inevitably turns to the shield laws in the jurisdiction under consideration.

Thirty-one states and the District of Columbia now have a reporter's shield statute.24 Moreover, many states without statutes have developed a reporter's privilege as part of their common law.25 Although many states recognize the reporter's privilege in some form, California's position is particularly strong. Its general shield law is embedded in the state constitution; the protection from prosecutors' subpoenas is even firmer in light of the Miller decision. Laws in other states do not always provide news personnel with the same protection from government demands in a criminal case. For instance, although Michigan, Minnesota, and Rhode Island all statutorily recognize the reporter's privilege, their courts have upon occasion subordinated that privilege to prosecutorial requisitions.26

Indeed, many states with shield laws reject absolutism in favor of a qualified or balancing approach. Justice Powell's concurring opinion in Branzburg recommends that "[t]he asserted claim to privilege should be judged on its facts by the striking of a proper balance between citizens to give relevant testimony with respect to criminal conduct."27 Many jurisdictions apply a modified version of Justice Powell's balancing test, requiring that, in order to defeat a qualified privilege, the prosecution must show that the evidentiary matter is highly material, relevant, critical, or necessary to the case; moreover, it should not be obtainable from any other sources.28 The Miller decision, on the other hand, makes clear that California does not allow a balancing test because its law affords reporters an absolute privilege against prosecutors' subpoenas.

In the application of the balancing test, jurisdictions outside California often give much more weight to the government's right to, or interest in, due process.29 For example, the Fifth Circuit has held that the federal government's interest in law enforcement outweighs the media's interest against the disclosure of information.30 Similarly, in Cayuga County, New York, a court held that the state is guaranteed a fair trial.31 California's recent decision downplayed this contention: "There is no conflict between the shield law and the subsequently enacted People's right to due process of law, and accordingly, no need to engage in the balancing of interests prescribed by Delaney."32 Thus, though nearly all states agree that the prosecution has at least an interest in due process, not every state balances that interest against the reporter's privilege.

States without shield laws or those with weaker shield laws take a stricter reading of Justice Powell's balancing test. For example, Michigan reads the test as applying only if: (1) a grand jury or other proceeding is not being conducted in good faith; or (2) the relationship between the material and the object of the investigation is remote and tenuous; or (3) the investigation does not implicate a legitimate need of law enforcement (e.g., it is just a fishing expedition).33 This reading of Justice Powell's opinion essentially forces the press to charge the prosecutor with harassment in order to avoid a subpoena.34 In Michigan, even confidential information does not warrant a qualified privilege from a grand jury subpoena unless the prosecution is harassing the press.35 Indeed, to many courts, confidentiality is the key to the reporter's shield since confidential information consistently warrants the most protection under the law of privilege.36

Four trends have emerged in response to Branzburg. Some states, like Texas, do not recognize a reporter's privilege and consistently allow prosecutors to obtain evidence from the media. Other jurisdictions recognize the reporter's privilege, but balance that privilege against the government's right to a fair trial. Additionally, some jurisdictions only employ a balancing test when the prosecutor has engaged in some kind of misconduct. Finally, California does not use Justice Powell's balancing test at all. California's shield law provides reporters with absolute immunity from contempt for failure to respond to third-party government subpoenas in a criminal case.

Several factors must converge if California's Miller decision is to serve as a beacon to other jurisdictions. First, the reporter's privilege must be recognized in either a statute or at common law. Second, the privilege must specifically protect reporters from contempt for failure to respond to subpoenas in the same way attorneys and others are specifically protected by their respective privileges. Third, this specific protection must be accorded more weight than any general right to due process vested in the state. If these factors converge, as they do in California, then reporters will have either absolute immunity from contempt, or at least a good chance of prevailing under Justice Powell's balancing test.

Other Prosecutorial Techniques
Aside from the typical subpoena, the prosecution might employ other techniques to requisition material from the media. In one approach, a prosecutor vicariously asserted the defendant's right to a fair trial.37 The prosecutor argued that the media's unpublished matter could be exculpatory.38 However, this argument was rejected because the defendant did not join in the motion, and a prosecutor cannot assert such rights vicariously.39 Alternatively, prosecutors may pursue documents from media sources through searches and raids.40 This approach requires the government to satisfy strict standards, but it has been upheld by the U.S. Supreme Court.41

But the greatest potential for circumnavigating shield laws comes from the Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings (Uniform Act). The Uniform Act, which is a reciprocal statute adopted in all fifty states and the District of Columbia, allows prosecutors from one state to subpoena records in another state.42 The basic test is whether the evidentiary matter is material and necessary and whether there is a logical relationship between the evidence and the subject matter of the trial.43 New York courts that apply the test also note that the privileges recognized in the sending state are not a factor and that only the receiving state may apply a privilege analysis.44 This interpretation has profound consequences for major media conglomerates that keep their records in California and New York. Both states have relatively strong shield laws, but if a district attorney from a state with no reporter's privilege (e.g., Texas) subpoenas the material, then the strong shield laws may offer no protection.45 To change this result, a custodian of records or other media representative would need to convince the court that the privilege should apply before the material leaves the state.

Reporters' Positions
Aside from myriad arguments for a free press, reporters can raise a number of public policy claims in response to government subpoenas for press mate-rial. One of the strongest is that the press should not be made an arm of the state. The California Supreme Court in Delaney explained: "[b]ecause journalists not only gather a great deal of information, but publicly identify themselves as possessing it, they are especially prone to be called upon by litigants Seeking to minimize the costs of obtaining needed information."46 And the Miller court found that "[t]he threat to the autonomy of the press is posed as much by a criminal prosecutor as by other litigants."47 Indeed, sources will be reluctant to talk to the press if they believe they are effectively talking to law enforcement officials,48 especially if the information is confidential. Additionally, the press will lose credibility as an independent and objective source of information if associated with the state.

Moreover, journalists should worry about the news and not subpoenas. Journalists hold a special position as the eyes and ears of the public.49 But the press might be chilled from reporting on matters simply to avoid being sucked into the criminal justice system.50 Indeed, they may spend too much time watching what they learn and record, rather than learning and recording as much as possible. Moreover, the press may be inclined to destroy records that might be subpoenaed.51 Such a response would undermine the archiving of information and do a disservice to the press and the public.

In jurisdictions that apply Justice Powell's balancing test, reporters must show that the prosecution's right or interest does not outweigh the reporter's privilege. In such circumstances, it is useful to explain to the court how the subpoena was not issued in good faith, how the investigation does not implicate a legitimate need of the law, or how the prosecution is otherwise harassing the press. If applicable, reporters should also show how divulging the subpoenaed material would reveal a confidential source, or show that the material is available to the prosecution from other sources. As in any case, those defending against a subpoena should consider demonstrating that the subpoena is overbroad and oppressive, 52 and that the subpoenaed material is irrelevant53 or cumulative.54 These strategies offer reporters additional arguments where the reporter's privilege is not absolute.

In Miller, California's Supreme Court concluded that an absolute immunity should not be converted into a qualified immunity "merely because it is in accord with a particular conception of the proper balance between journalists' rights and prosecutor's prerogatives."55 This conclusion offers groundbreaking protection for journalists in California because it acknowledges a prosecutor's interest in due process, but refuses to subordinate it to a clear reporter's shield law. It is to be hoped that legislatures and courts in other jurisdictions will follow suit and adopt the sound reasoning in Miller.

1. Miller v. Superior Court, 89 Cal. Rptr. 2d 834, 21 Cal. 4th 883, 986 P.2d 170 (Cal. 1999).
2. CAL. CONST. art. I, § 2; CAL. EV Id. CODE § 1070.
3. Miller v. Superior Court, 77 Cal. Rptr. 2d 827 (Cal. Ct. App. 1998).
4. CAL. CONST. art. I, § 29.
5. See Miller, 77 Cal. Rptr. 2d at 836.
6. See Id. at 834.
7. See Id. at 827.
8. See CAL. CONST. art. I, § 28(d).
9. Id.
10. CAL. CONST. art. I, § 29.
11. See Miller, 89 Cal. Rptr. 2d at 840-41.
12. See Id. at 838, 839, 846.
13. See Delaney v. Superior Court, 50 Cal. 3d 785, 805-06, 789 P.2d 934 (Cal. 1990).
14. See Miller, 89 Cal. Rptr. 2d at 839-42. Accord State v. Wade, 23 Media L. Rep. 1383, 1384 (Fla. Cir. Ct. 1995) (rejecting the argument that the prosecution has Sixth Amendment rights akin to a criminal defendant).
15. See Miller, 89 Cal. Rptr. 2d at 839-42.
16. See Id. at 841.
17. See Id. at 842-43.
18. See Id. at 844 (citing Jones v. Superior Court, 58 Cal. 2d 56, 60-61, 22 Cal. Rptr. 879, 372 P.2d 919 (Cal. 1962)).
19. See Bryan Whitehead and Kirk Salzmann, Confidential Sources & Information-Paying the Price: Reporters Who Went to Jail (visited Nov. 15, 1999) .
20. See Id.
21. See Kidwell v. State, 730 So. 2d 670 (Fla. Sup. Ct. 1998).
22. See, e.g., United States v. Smith, 135 F.3d 963, 968 (5th Cir. 1998) (holding that reporters enjoy no qualified privilege to withhold nonconfidential material from prosecutors, and noting that "[a]ny discussion of the newsreporters' privilege must start with an examination of Branzburg v. Hayes, 408 U.S. 665 (1972), the Supreme Court's most detailed exposition on the subject"); State v. DiPrete, 1998 WL 726491 *1, *4 (R.I. Super. 1998) (narrowing and upholding prosecutor's subpoena despite shield law, and noting that "[t]he appropriate starting point for any issue involving a First Amendment news reporters' privilege is Branzburg v. Hayes [citation omitted]").
23. Branzburg, 408 U.S. at 706.
24. ALA. CODE § 12-21-142; ALASKA STAT. §§ 09.25.300-390; ARIZ. REV. STAT. ANN. §§ 12-2214, 12-2237; ARK. CODE ANN. § 16-85-510; CAL. CONST. art. I,
§ 2(b); CAL. EV Id. CODE § 1070; COLO. REV. STAT. §§ 13-90-119, 24-72.5-101-06; DEL. CODE. ANN. tit. 10, §§ 4320-26; D.C. CODE ANN. §§ 16-4701-04; FLA. STAT. ch. 90.5015; GA. CODE ANN. § 24-9-03; ILL. ANN. STAT. ch. 110, §§ 8-901-09; IND. CODE § 34-3-5-1; KY. REV. STAT. ANN.
§ 421.100; LA. REV. STAT. ANN.
§§ 45:1451-59; MD. CTS. & JUD. PROC. CODE ANN. § 9-112; MICH. STAT. ANN.
§ 28.945(1); MINN. STAT. §§ 595.021-.025; MONT. CODE ANN. §§ 26-1-901-03; NEB. REV. STAT. §§ 20-144-147; NEV. REV. STAT. ANN. §§ 49.275, 49.385; N.J. STAT. ANN. §§ 2A:84A-21-21.9, 2A:84A-29; N.M. STAT. ANN. § 38-6-7; N.Y. CIV. RIGHTS LAW § 79-h; N.C. GEN. STAT. ch. 8, art. 7
§ 8-53.9; N.D. CENT. CODE § 31-01-06.2; OHIO REV. CODE. ANN. §§ 2739.04, 2739.12; OKLA. STAT. ANN. tit. 12, § 2506; OR. REV. STAT. §§ 44.510-.540; 42 PA. CONS. STAT. ANN. § 5942; R.I. GEN. LAWS §§ 9-19.1-1-.1-3; S.C. CODE ANN.
§ 19-11-100; TENN. CODE ANN. § 24-1-208.
25. See, e.g., Goldfeld v. Post Pub & Co., 4 Media L. Rep. 1167 (Conn. Super. Ct. 1978); Winegard v. Oxeberger, 258 N.W.2d 847 (Iowa 1977), cert. denied, 436 U.S. 905 (1978); State v. Sandstrom, 581 P.2d 812 (Kan. 1978), cert. denied, 440 U.S. 929 (1979); State v. Siel, 444 A.2d 499 (N.H. 1982); Hopewell v. Midcontinent Broadcasting Corp., 538 N.W.2d 780 (S.D. 1995), cert. denied, 117 S. Ct. 69 (1996); State v. St. Peter, 315 A.2d 254 (Vt. 1974); Brown v. Commonwealth, 204 S.E.2d 429 (Va. 1974), cert. denied, 419 U.S. 966 (1974); State v. Terwillinger, 11 Media L. Rep. 2463 (Wash.1985); State ex rel. Hudok v. Henry, 389 S.E.2d 188 (W. Va. 1989); State v. Knops, 183 N.W.2d 93 (Wis. 1971)).
26. See, e.g., In re Contempt of Stone, 397 N.W.2d 244 (Mich. Ct. App. 1986) (discussing Michigan's shield law but holding it inapposite where television news reporter was subpoenaed by grand jury to produce news materials), appeal denied 426 Mich. 854 (1986), habeus corpus denied sub nom. In re Grand Jury Proceedings, 810 F.2d 580 (6th Cir. 1987); State v. Knutson, 539 N.W.2d 254 (Minn. Ct. App. 1995) (rejecting argument that photographs subpoenaed by the state were protected by Minnesota's shield law from in camera inspection); DiPrete, 1998 WL 726491, at *1 (acknowledging Rhode Island's shield law, but still granting prosecutor's request for production of media documents).
27. Branzburg, 408 U.S. at 710 (Powell, J., concurring).
28. See, e.g., In re Williams, 766 F. Supp. 358, 360, 369 (W.D. Pa. 1991) (applying balancing test, focusing on prosecutor's failure to try to obtain information from other sources, and quashing subpoena), aff'd by an equally divided court, en banc, 963 F.2d 567 (3d Cir. 1992); Kidwell, 730 So. 2d at 671 (applying the same balancing test for defense and prosecution requests, and finding for reporter); People v. Cheche, 571 N.Y.S.2d 992, 995 (Cayuga Cty. Ct. 1991) (invoking New York's qualified privilege balancing test, N.Y. CIV. RIGHTS LAW
§ 79h-[c], and holding that the state met its burdens); People v. Lyons, 574 N.Y.S.2d 126, 128 (City Ct. of Buffalo 1991) (invoking New York's balancing test for nonconfidential, unpublished information, N.Y. CIV. RIGHTS LAW § 79h-[c], and holding that prosecutor failed to meet its burdens); State v. Anaga, 1991 WL 17185 *1, 18 Media L. Rep. 1527 (Ohio Commw. Pl. 1991) (analyzing Ohio shield law, applying balancing test, and quashing state's subpoena); DiPrete, 1998 WL 726491 at *4, *5 (citing Justice Powell's balancing test and upholding subpoena).
29. See, e.g., Branzburg, 408 U.S. at 690-91 (mentioning the public interest in law enforcement); Smith, 135 F.3d at 972 (emphasizing interest in law enforcement and holding that it outweighs reporter's privilege); In re Shain, 978 F.2d 850, 853 (4th Cir. 1992) (asserting that the government has a "clear" interest in using "outtakes" to rebut defendant's claim of innocent intent); In re Williams, 766 F. Supp. at 371 (finding that the prosecution's interests may outweigh reporters' in some cases, but not this one); Karem v. Priest, 744 F. Supp. 136, 142 (W.D. Tex. 1990) (holding that the "interests of the state in law enforcement and of the defendants to a fair trial outweigh [reporter's] interest in protecting his sources"); Cheche, 571 N.Y.S.2d at 994 (recognizing the people's right to a fair trial and to subpoena credible, nonhostile media witnesses); State v. McMeans, 884 S.W. 2d 772, 775 (Tex. Crim. App. 1994) (holding that the prosecution and the defense have a "fundamental need" to "develop all the facts in an adversarial system of criminal justice").
30. See Smith, 135 F.3d at 972.
31. See Cheche, 571 N.Y.S.2d at 994.
32. Miller, 89 Cal. Rptr. 2d at 841-42.
33. See In re Contempt of Stone, 397 N.W.2d at 249 (refusing to apply balancing test because none of the conditions were met). See also Branzburg, 408 U.S. at 710 (Powell, J., concurring) (reasoning that "if the newsman is called upon to give information bearing only a remote and tenuous relationship to the subject of the investigation, or if he has some other reason to believe that his testimony implicates confidential source relationships without a legitimate need of law enforcement, he will have access to the court on a motion to quash"); In re Shain, 978 F.2d at 853 (explaining that Justice Powell's balancing test be applied where there is harassment).
34. See generally Smith, 135 F.3d at 969 (explaining that Justice Powell wanted the balancing test to apply only where newsmen were harassed, and also finding that there was no harassment).
35. See In re Stone, 397 N.W.2d at 249 (holding a reporter must divulge information to a grand jury even if it is confidential, unless there is prosecutorial harassment).
36. See, e.g., In re Smith, 135 F.3d at 972 (holding that confidentiality is the key to the reporter's privilege and that there is no qualified privilege for nonconfidential information in criminal cases); Lyons, 574 N.Y.S.2d at 130 (explaining New York's statutory treatment of confidential (receiving absolute privilege) versus nonconfidential (receiving qualified privilege) information, N.Y. CIV. RIGHTS LAW § 79-h[b] & h[c]); In re Williams, 766 F. Supp. at 372 (Pennsylvania's shield prevents the compelled production of material that could reveal an anonymous source).
37. See In re Smith, 135 F.3d at 970 n.3.
38. See Id.
39. See Id. (citing United States v. Fortna, 796 F.2d 724, 732 (5th Cir.) (holding that the Sixth Amendment rights of a defendant cannot be asserted vicariously), cert. denied, 479 U.S. 950 (1986)).
40. See, e.g., Zurcher v. Stanford Daily, 436 U.S. 547 (1978) (upholding constitutionality search warrant of newspaper office), rehearing denied, 439 U.S. 885 (1978).
41. See Id.
42. See Codey v. Capital Cities/Amer-ican Broadcasting Corp., 605 N.Y.S.2d 661, 639-40 (N.Y. 1993) (explaining the procedures under the Uniform Act).
43. See In re Magrino, 640 N.Y.S.2d 545 (N.Y. App. Div. 1996) (enunciating and applying balancing test to Florida prosecutor's subpoena and ordering media to provide material). See also Codey, 605 N.Y.S.2d at 641 (defining test and granting New Jersey prosecutor's demands on television broadcasting company).
44. See Codey, 605 N.Y.S.2d at 641 (reversing appellate court's decision to consider the privileged nature of evidence sought by New Jersey prosecutors).
45. Indeed, this may have affected the outcome of certain subpoenas in the Texas "dragging-death" case. The Jasper district attorney subpoenaed copies of the Berry interview from Dan Rather and CBS in New York. Perhaps knowing that such a subpoena would mean subjecting CBS to the state's unfriendly attitude toward the reporter's privilege, CBS agreed to post a transcript of the interview on the Internet. In return, the district attorney abandoned efforts to jail CBS producer Mary Mapes for contempt.
46. Delaney, 50 Cal. 3d at 821.
47. Miller, 89 Cal. Rptr. 2d at 844.
48. See Kidwell, 730 So. 2d at 671 (noting that "extreme care must be taken to ensure that the media is not used as an investigative arm of the state"); Lyons, 574 N.Y.S.2d at 130 (warning against newspersons becoming agents of the government).
49. See Miller, 89 Cal. Rptr. 2d at 844 (quoting Delaney, 50 Cal. 3d at 820).
50. But cf. Smith, 135 F.3d at 970 (rejecting argument that press might hesitate before reporting on important matters out of fear of getting enmeshed in criminal litigation); Anaga, 1991 WL 17185 at *1 (disposing of reporter's argument that continued subpoenas would require unnecessary time and expense).
51. But cf. Smith, 135 F.3d at 970 (rejecting contention that media might be inclined to destroy their archives).
52. See DiPrete, 1998 WL 726491 at **3-5 (agreeing with reporter that subpoena was overbroad, but finding no First Amendment concerns when the subpoena was narrowed).
53. But cf. Smith, 135 F.3d at 973 (rejecting argument that evidence was irrelevant); In re Shain, 978 F.2d at 853 (noting that reporters failed to argue material was irrelevant).
54. See generally Cheche, 571 N.Y.S.2d at 995 (denying reporter's motion to quash subpoena without prejudice to renew if testimony would be cumulative). But cf. Smith, 135 F.3d at 973 (rejecting argument that evidence was cumulative); In re Shain, 978 F.2d at 853 (noting that reporters failed to argue material was duplicative).
55. Miller, 89 Cal. Rptr. 2d at 846.
Jean-Paul Jassy is an associate in the Los Angeles office of Davis Wright Tremaine LLP.

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