TENNESSEE CODE ANNOTATED
Copyright (c) 1955-2003 by The State of Tennessee
All rights reserved.
*** CURRENT THROUGH THE 2002 SESSION ***
*** ANNOTATIONS CURRENT THROUGH APRIL 4, 2003. ***
TITLE 24. EVIDENCE AND WITNESSES
CHAPTER 1. WITNESSES AND PRIVILEGED COMMUNICATIONS
PART 2. PRIVILEGED COMMUNICATIONS
Tenn. Code Ann. @ 24-1-208 (2003)
24-1-208. Persons gathering information for publication or broadcast --
Disclosure
(a) A person engaged in gathering information for publication or broadcast
connected with or employed by the news media or press, or who is independently
engaged in gathering information for publication or broadcast, shall not be
required by a court, a grand jury, the general assembly, or any administrative
body, to disclose before the general assembly or any Tennessee court, grand
jury, agency, department, or commission any information or the source of any
information procured for publication or broadcast.
(b) Subsection (a) shall not apply with respect to the source of any
allegedly defamatory information in any case where the defendant in a civil
action for defamation asserts a defense based on the source of such information.
(c) (1) Any person seeking information or the source thereof protected under
this section may apply for an order divesting such protection. Such application
shall be made to the judge of the court having jurisdiction over the hearing,
action or other proceeding in which the information sought is pending.
this section may apply for an order divesting such protection. Such application
shall be made to the judge of the court having jurisdiction over the hearing,
action or other proceeding in which the information sought is pending.
(2) The application shall be granted only if the court after hearing the
parties determines that the person seeking the information has shown by clear
and convincing evidence that:
(A) There is probable cause to believe that the person from whom the
information is sought has information which is clearly relevant to a specific
probable violation of law;
(B) The person has demonstrated that the information sought cannot
reasonably be obtained by alternative means; and
(C) The person has demonstrated a compelling and overriding public
interest of the people of the state of Tennessee in the information.
(3) (A) Any order of the trial court may be appealed to the court of
appeals in the same manner as other civil cases. The court of appeals shall make
an independent determination of the applicability of the standards in this
subsection to the facts in the record and shall not accord a presumption of
correctness to the trial court's findings.
(B) The execution of or any proceeding to enforce a judgment divesting
the protection of this section shall be stayed pending appeal upon the timely
filing of a notice of appeal in accordance with Rule 3 of the Tennessee Rules of
Appellate Procedure, and the appeal shall be expedited upon the docket of the
court of appeals upon the application of either party.
(C) Any order of the court of appeals may be appealed to the supreme
court of Tennessee as provided by law.
HISTORY: Acts 1973, ch. 27, @@ 1-3; T.C.A, @ 24-113--24-115; Acts 1988, ch. 803,
@@ 1, 2.
NOTES:
TEXTBOOKS. Tennessee Jurisprudence, 17 Tenn. Juris., Jurisdiction, @@ 20, 22; 20
Tenn. Juris., Newspapers, @ 3; 25 Tenn. Juris., Witnesses, @ 54.
NOTES TO DECISIONS
LAW REVIEWS. Tennessee Grants Newsmen a Qualified Disclosure Shield, 4 Mem. St.
U.L. Rev. 143.
Tennessee's Newsman Shield Law -- Confidentiality Not a Requirement, 14 Mem.
St. U.L. Rev. 418 (1984).
Toward a Unified Approach to Privileges and Relevancy (Thomas F. Guernsey),
17 Mem. St. U.L. Rev. 1 (1986).
"We Have a Warrant to Search Your Files!" (Charles Currier), 19 No. 1 Tenn.
B.J. 12 (1983). Fann v. City of Fairview, 905 S.W.2d 167 (Tenn. Ct. App.
1994); Moore v. Domino's Pizza, L.L.C., 199 F.R.D. 598 (W.D. Tenn. 2000).
ANALYSIS
1. Scope.
2. Jurisdiction.
3. Remedies.
4. Divestiture of protection.
5. Confidentiality not required.
1. SCOPE.
The Shield Law, compiled in this section, is applicable to civil actions.
Austin v. Memphis Publishing Co., 655 S.W.2d 146 (Tenn. 1983).
2. JURISDICTION.
A trial court lacks subject matter jurisdiction to make a decision
interpreting this section as it relates to subpoenas issued in a tort lawsuit.
Austin v. Memphis Publishing Co., 621 S.W.2d 397 (Tenn. Ct. App. 1981).
3. REMEDIES.
When the privilege under this section is asserted, the only recourse to the
person seeking the information is to apply to the court of appeals as allowed by
subsection (c). Austin v. Memphis Publishing Co., 621 S.W.2d 397 (Tenn.
Ct. App. 1981).
4. DIVESTITURE OF PROTECTION.
Subsection (c) contemplates an original hearing and disposition of factual,
as well as legal, issues before the court of appeals and a direct appeal to the
supreme court as a matter of right. State ex rel. Gerbitz v. Curriden, 738S
.W.2d 192 (Tenn. 1987).
Application for divestiture of privilege against disclosure granted under
T.C.A. @ 24-1-208 denied. State ex rel. Gerbitz v. Curriden, 738 S.W.2d 1
92 (Tenn. 1987); Dingman v. Harvell, 814 S.W.2d 362 (Tenn. Ct. App.
1991).
In order for T.C.A. @ 24-1-208 (c) to apply, the party seeking application
must establish by clear and convincing evidence each required factor: (1)
Probable cause that informant has relevant information about specific probable
violation of law; (2) Information cannot reasonably be obtained by alternative
means; and (3) Compelling and overriding public interest in obtaining the
information. Moore v. Domino's Pizza, L.L.C., 199 F.R.D. 598 (W.D. Tenn.
2000).
Defendant's arguments failed to meet the clear and convincing standard
required of T.C.A. @ 24-1-208 (c) where: (1) No attempt was made to depose the
plaintiffs in order to obtain the information in question; (2) Defendant's
contention that the broadcast station's employees were the only non-biased
source of information was questionable; and (3) Defendant attached an affidavit
from a witness that supported the fact that there were other means and parties
that could provide defendant with the information sought. Moore v.
Domino's Pizza, L.L.C., 199 F.R.D. 598 (W.D. Tenn. 2000).
5. CONFIDENTIALITY NOT REQUIRED.
Qualified privilege against disclosure granted the news media under
Tennessee's Shield Law, codified in this section, is not contingent upon a
finding that the information or source of information sought was obtained in the
course of a confidential newsman-informant relationship. Austin v. MemphisP
ublishing Co., 655 S.W.2d 146 (Tenn. 1983).
COLLATERAL REFERENCES. Privilege of news gatherer against disclosure of
confidential sources or information. 99 A.L.R.3d 37.
Reportorial privilege as to nonconfidential news information. 60 ALR5th7
5.
Witnesses Key 196.1.