                               IN THE
            ARIZONA COURT OF APPEALS
                            DIVISION ONE


         PHOENIX NEWSPAPERS, INC. and JOHN D’ANNA,
                        Petitioners,

                                   v.

        THE HONORABLE PETER C. REINSTEIN, Judge of the
         SUPERIOR COURT OF THE STATE OF ARIZONA,
              in and for the County of MARICOPA,
                         Respondent Judge,


         STATE OF ARIZONA and GARY MICHAEL MORAN,
                      Real Parties in Interest.

                         No. 1 CA-SA 16-0096
                           FILED 8-11-2016


 Petition for Special Action from the Superior Court in Maricopa County
                          No. CR2014-128973-001
                 The Honorable Peter C. Reinstein, Judge

          JURISDICTION ACCEPTED; RELIEF GRANTED


                              COUNSEL

Ballard Spahr LLP, Phoenix
By David J. Bodney, Heather Todd Horrocks
Counsel for Petitioners

Maricopa County Public Defender’s Office, Phoenix
By Angela L. Walker, Bobbi Falduto
Counsel for Real Party in Interest Moran
   PHOENIX NEWSPAPERS v. HON. REINSTEIN/STATE/MORAN
                  Opinion of the Court



                                OPINION

Judge Randall M. Howe delivered the opinion of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Andrew W. Gould joined.


H O W E, Judge:

¶1            Phoenix Newspapers, Inc. and John D’Anna (collectively,
“PNI”) seek special action relief from the trial court’s order denying its
motion to quash a subpoena duces tecum. PNI argues that because the
affidavit accompanying the subpoena for D’Anna’s interview notes did not
satisfy Arizona’s Media Subpoena Law, A.R.S. § 12–2214, PNI was not
required to disclose the information to Gary Michael Moran, the real party
in interest. Specifically, and as relevant to our disposition of this special
action, PNI argues that Moran has not exhausted all available sources for
the information and that the information is protected by Arizona’s Media
Shield Law, A.R.S. § 12–2237, and the First Amendment to the United States
Constitution.

¶2             Special action jurisdiction is appropriate here because PNI
has “no equally plain, speedy and adequate remedy by appeal,” Ariz. R. P.
Spec. Act. 1(a), and the issue raised is a purely legal question of statewide
importance, Matera v. Superior Court, 170 Ariz. 446, 447, 825 P.2d 971, 972
(App. 1992). Moreover, special action review is appropriate because PNI
has been ordered to disclose what it claims is privileged information. See
Azore, LLC v. Bassett, 236 Ariz. 424, 426 ¶ 2, 341 P.3d 466, 468 (App. 2014).
Consequently, we accept jurisdiction, and because Moran has not satisfied
the Media Subpoena Law’s requirements to compel disclosure by PNI, we
grant relief and vacate the trial court’s order.

                FACTS AND PROCEDURAL HISTORY

¶3            The State has charged Moran with first-degree murder of
Fr. Kenneth Walker and aggravated assault against Fr. Joseph Terra, both
on June 11, 2014. A year after the incident, on June 11, 2015, and also on
December 25, 2015, D’Anna authored and The Arizona Republic published
two articles about Fr. Terra and the incident. The first article detailed
Fr. Terra’s celebrating a Mass for Fr. Walker and the second detailed
Fr. Terra’s choice to forgive the assailant.




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   PHOENIX NEWSPAPERS v. HON. REINSTEIN/STATE/MORAN
                  Opinion of the Court

¶4            According to defense counsel’s affidavit accompanying the
subpoena, she contacted D’Anna on December 28, 2015, requesting “a copy
of any notes taken during his interviews or meeting with Father Terra.”
D’Anna declined to provide any notes or to say whether any notes existed.
Counsel subsequently subpoenaed D’Anna to appear in court and to
produce, as relevant, “any and all electronic communications, written
notes, audio, visual, or otherwise memorialized documentary evidence
related to Father Joseph Terra’s interview” concerning the articles.

¶5             In the same affidavit, counsel avowed, as relevant, that she
had been unable to obtain the items either from D’Anna or his legal
representative and that “[o]nly Mr. D’Anna [was] in possession of the
information . . . , either memorialized in notes or merely remembered.”
Counsel also avowed that “[s]tatements about the offense, including but not
limited to, what happened, the quality of Father Terra’s memory, the extent
of his injuries, his feelings about the events, and any other information
about the offense [were] relevant and material to Mr. Moran’s defense.”
Counsel further avowed that the notes sought were not protected by any
lawful privilege and that the subpoena was not intended to interfere with
rights protected by the First Amendment to the United States Constitution
or Article 2, Section 6, of the Arizona Constitution.

¶6             PNI moved to quash the subpoena, arguing that the affidavit
did not comply with the Media Subpoena Law. Under that statute, a party
wishing to subpoena information from a member of the news media must
provide an affidavit that, among other things, avows that the affiant has
tried to obtain the information from all other available sources and that the
information is not lawfully privileged. A.R.S. § 12–2214(A). PNI argued that
these requirements were not met because Moran had not tried to interview
Fr. Terra to obtain the information and because the notes were protected by
the Media Shield Law, the First Amendment, and Article 2, Section 6.

¶7            Specifically, PNI argued that the affidavit could not overcome
the privilege afforded to reporters by the Media Shield Law, which protects
“the source of information procured or obtained by” a journalist. A.R.S.
§ 12–2237. PNI contended that the Media Shield Law protects not only a
reporter’s source but also the information a source gives a reporter in
confidence. It argued that some of the information Fr. Terra disclosed to
D’Anna was disclosed in confidence and therefore protected by the Media
Shield Law. PNI further contended that the affidavit could not overcome
the First Amendment’s qualified journalist’s privilege, which protects the
identity of sources and a source’s information from compelled disclosure
unless the party seeking discovery shows that he has exhausted all


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                   Opinion of the Court

reasonable alternative sources to obtain the information and the
information is noncumulative and actually relevant. See Shoen v. Shoen, 48
F.3d 412, 416 (9th Cir. 1995) (“Shoen II”). Moran responded that the affidavit
complied with the Media Subpoena Law; that the Media Shield Law was
inapplicable because it only protects sources, not information; and that he
met the requirements for disclosure under the First Amendment.

¶8            After briefing and oral argument, the trial court denied PNI’s
motion to quash. The court found that counsel’s affidavit satisfied the
Media Subpoena Law’s requirements. Specifically, the court found that the
affidavit provided all the information the statute required, and
consequently, the affidavit was sufficient because under Bartlett v. Superior
Court, 150 Ariz. 178, 722 P.2d 346 (App. 1986), the affidavit must be accepted
in the absence of a controverting affidavit, which PNI did not provide. The
court also found that the Media Shield Law did not apply because the
subpoena did not require PNI “to reveal confidential sources or
information,” nor would it “impede the gathering of information.”

¶9             The court found that the First Amendment privilege was
codified in the Media Shield Law and that it only applied to confidential
sources. The court further found that even assuming that the First
Amendment provided additional protection, it did not protect D’Anna’s
notes because Moran had proved that the information sought was
unavailable after exhausting all alternative sources and that it was
noncumulative and relevant to his defense. PNI moved for reconsideration
and provided a controverting affidavit, but after considering briefing and
the affidavit, the court denied the motion. The parties have stipulated to a
stay of the disclosure order while PNI seeks special action relief.1

                               DISCUSSION

¶10          PNI argues that the trial court erred in denying the motion to
quash. Specifically, PNI argues that the affidavit accompanying the
subpoena duces tecum does not satisfy the Media Subpoena Law because
(1) Moran has not exhausted all other available sources for the information
and (2) the Media Shield Law and the First Amendment protect the
information from disclosure. We review the trial court’s denial of a motion
to quash a subpoena duces tecum for an abuse of discretion. Schwartz v.
Superior Court, 186 Ariz. 617, 619, 925 P.2d 1068, 1070 (App. 1996). But we


1        Moran has requested to remove the State as a real party in interest
from our caption. But because the State has an interest in the outcome of
this litigation, we deny Moran’s request.


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    PHOENIX NEWSPAPERS v. HON. REINSTEIN/STATE/MORAN
                   Opinion of the Court

review de novo whether and to what extent a privilege exists. Carondelet
Health Network v. Miller, 221 Ariz. 614, 617 ¶ 8, 212 P.3d 952, 955 (App. 2009).

¶11            We also review de novo issues of law involving statutory
interpretation. Id. Our primary goal in interpreting a statute is to give effect
to legislative intent, looking to the plain language as the best indicator of
that intent. Baker v. Univ. Physicians Healthcare, 231 Ariz. 379, 383 ¶ 8, 296
P.3d 42, 46 (2013). Privilege statutes are strictly construed, however,
because “they impede the truth-finding function of the courts.” Carondelet
Health, 221 Ariz. at 616 ¶ 7, 212 P.3d at 954. As discussed below, the affidavit
accompanying the subpoena duces tecum fails to satisfy two requirements
of the Media Subpoena Law: that Moran has exhausted other sources for
the information and that the information is not protected by any lawful
privilege. Because Moran has not satisfied these requirements, we need not
address PNI’s other arguments. See Freeport McMoran Corp. v. Langley Eden
Farms, LLC, 228 Ariz. 474, 478 ¶ 15, 268 P.3d 1131, 1135 (App. 2011)
(declining to decide unnecessary issues or issue advisory opinions).
Therefore, because the affidavit was deficient, the trial court erred in
denying the motion to quash the subpoena duces tecum.

¶12             The Media Subpoena Law provides that subpoenas of
persons “engaged in gathering, reporting, writing, editing, publishing, or
broadcasting news to the public” shall have “no effect” unless accompanied
by “the required affidavit.” A.R.S. § 12–2214(A)–(B). The statute “protect[s]
members of the media from burdensome subpoenas and broad discovery
fishing expeditions that would interfere with the ongoing business of
gathering and reporting news to the public.” Matera, 170 Ariz. at 448, 825
P.2d at 973. The statute “was designed to aid a specified class of persons—
members of the media—in performing their jobs free from the
inconvenience of being used as surrogate investigators for private
litigants.” Id.

¶13           The “required affidavit” must meet six specific requirements.
See A.R.S. § 12–2214(A). The affiant must (1) list “[e]ach item of
documentary and evidentiary information sought from the person
subpoenaed”; (2) avow that the affiant “has attempted to obtain each item
of information from all other available sources, specifying which items the
affiant has been unable to obtain”; and (3) identify “the other sources from
which the affiant or his representative has attempted to obtain the
information.” A.R.S. § 12–2214(1)–(3). The affiant must also avow that
(4) “the information sought is relevant and material to the affiant’s cause of
action or defense” and that (5) “the information is not protected by any
lawful privilege.” A.R.S. § 12–2214(A)(4)–(5). The affiant must finally avow


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    PHOENIX NEWSPAPERS v. HON. REINSTEIN/STATE/MORAN
                   Opinion of the Court

that (6) “the subpoena is not intended to interfere with the gathering,
writing, editing, publishing, broadcasting and disseminating of news to the
public as protected by” the First Amendment and Article 2, Section 6 of the
Arizona Constitution. A.R.S. § 12–2214(6).

¶14             Once the party seeking the information has complied with the
requirements of subpart (A), the subject of the subpoena may controvert the
allegations of the affidavit and set forth the bases therefor by either filing a
controverting affidavit or moving to quash the subpoena. A.R.S.
§ 12–2214(C); see also Bartlett, 150 Ariz. at 183, 722 P.2d at 351. “If the
affidavit is controverted or a motion to quash the subpoena . . . is filed by
the person subpoenaed, the command of the subpoena shall be postponed”
until the trial court holds a hearing and issues an order. A.R.S. § 12–2214(C).
Consequently, the subpoena has “no effect” until the movant establishes
the six requirements in subpart (A). See A.R.S. § 12–2214(A)–(B). However,
if the party subpoenaed contests the affidavit by filing a controverting
affidavit or, as here, moves to quash the subpoena duces tecum, the trial
court must stay the subpoena and hold a hearing to determine the merits of
the motion to quash. See A.R.S. § 12–2214(C).

              1. Exhaustion of Other Sources

¶15           PNI argues that the affidavit did not satisfy the Media
Subpoena Law because Moran did not “attempt[] to obtain each item of
information from all other available sources.” See A.R.S. § 12–2214(A)(2).
Counsel’s affidavit stated that she had requested “any and all
communication” between D’Anna and Fr. Terra in reference to the June 11
and the December 25 articles. Counsel avowed that she had “been unable
to obtain [the items] from Mr. D’Anna and his legal representative.” But
counsel’s affidavit stated that she was requesting information about
communications between D’Anna and Fr. Terra. She said nothing about
seeking the information directly from Fr. Terra; indeed, nothing in the
record indicates that Moran made any effort to contact Fr. Terra to ask him
for an interview. Moran has not exhausted the possibility that the priest
could provide Moran with the same information that he provided PNI.
Further, although the Victim’s Bill of Rights gives Fr. Terra the right to
refuse an interview with Moran, defense counsel, or any “other person
acting on behalf of Defendant,” Ariz. Const. art. II, § 2.1(A)(5), defense
counsel’s affidavit does not state whether an interview with Fr. Terra was
requested or denied.

¶16          Moran counters that interviewing Fr. Terra now would not
provide the same information as D’Anna’s notes of his interviews with the


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                   Opinion of the Court

priest because only the notes would memorialize Fr. Terra’s actual
statements during the interviews. But this argument fails because Moran
has not attempted to interview Fr. Terra; therefore, Moran has not
eliminated the possibility that Fr. Terra would accurately recount his
conversations with D’Anna. Consequently, because Moran has not
exhausted the requirement of seeking the information “from all other
available sources,” the affidavit fails to satisfy a requirement of the Media
Subpoena Law to compel PNI to disclose the information.

              2. Protection by Lawful Privilege

¶17            PNI next argues that the affidavit also cannot satisfy the
Media Subpoena Law because the information Moran seeks is protected by
the Media Shield Law and the “journalist’s qualified privilege” afforded by
the First Amendment. But Moran counters that the Media Shield Law “does
not protect information derived from a non-confidential source.” Moran
also counters that he has met the First Amendment’s requirements to
compel disclosure because he has shown that “PNI is the only source of the
subpoenaed information, the information is not cumulative, and the
information is material and relevant to [his] case.” As discussed below, the
Media Shield Law is inapplicable, but because Moran has not made the
necessary showings to overcome the First Amendment privilege, the
affidavit fails to satisfy the Media Subpoena Law’s requirement that the
information sought is not subject to a privilege.

                      2(a). Arizona’s Media Shield Law

¶18            PNI first contends that Moran cannot satisfy the Media
Subpoena Law’s absence-of-privilege requirement because the Media
Shield Law protects the information at issue. The Media Shield Law
protects a journalist from being compelled to “testify or disclose in a legal
proceeding or trial or any proceeding whatever . . . the source of
information procured or obtained by him for publication in a newspaper or
for broadcasting over a radio or television station with which he was
associated or by which he is employed.” A.R.S. § 12–2237. This statutory
privilege protects a reporter’s sources, Matera, 170 Ariz. at 449, 825 P.2d at
974, and the reporter holds the privilege, Flores v. Cooper Tire & Rubber Co.,
218 Ariz. 52, 58 ¶ 26, 178 P.3d 1176, 1182 (App. 2008). This privilege “is
rooted in the public purpose to allow journalists to collect the news from
sources who would not otherwise disclose information if they were
identified.” Id. at 59 ¶ 33, 178 P.3d at 1183. Because the statute applies to all
proceedings “whatever,” see A.R.S. § 12–2237, the statute precludes




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                   Opinion of the Court

“disclosure of the confidential source.” Flores, 218 Ariz. at 60–61 ¶ 44, 178
P.3d at 1184–85 (internal quotation marks and citations omitted).

¶19             PNI counters that the statute protects both sources and
confidential information. But this issue has been previously decided in State
v. Moody, 208 Ariz. 424, 94 P.3d 1119 (2004). In Moody, a criminal defendant
argued that the trial court erred in preventing him from cross-examining a
reporter who had written an article about the crimes he was accused of
committing. Id. at 457 ¶ 134, 94 P.3d at 1152. Our supreme court held that
the Media Shield Law did not protect the reporter from the defendant’s
cross-examination about “unpublished information” or the reporting
process. Id. at 458 ¶¶ 136–39, 94 P.3d at 1153. The court explained that the
statute was “not implicated in this case because [the] article did not involve
a confidential source.” Id. at ¶ 139; see also Matera, 170 Ariz. at 449, 825 P.2d
at 974–75 (“The statute does not protect all the activities of would-be
publishers or newsgatherers, nor does it protect any and all information
gathered.”). Consequently, the Media Shield Law is inapplicable because
the subpoena does not seek the source of the information in D’Anna’s
articles; it seeks information Fr. Terra, an identified source, disclosed in his
interviews with D’Anna. Because the subpoena did not seek disclosure of a
confidential source, the Media Shield Law is inapplicable here.

                      2(b). The First Amendment

¶20            PNI next argues that Moran also cannot satisfy the Media
Subpoena Law’s absence-of-privilege requirement because the information
sought is protected by the journalist’s qualified privilege afforded by the
First Amendment.2 The First Amendment provides, in relevant part, that
“Congress shall make no law(s) . . . abridging the freedom of speech, or of
the press.” U.S. Const. amend. 1. As applicable here, the extent of a
journalist’s privilege under federal law derives from the First Amendment
as established by Branzburg v. Hayes, 408 U.S. 665 (1972). In Branzburg, the
United States Supreme Court considered whether a news reporter could be
compelled to testify before a grand jury. The reporter had written an article
about two drug dealers he had interviewed and had watched manufacture
hashish. Id. at 667–68. The reporter declined to identify them before the

2      PNI also contends that Article 2, Section 6 affords protection to
D’Anna’s information. See Ariz. Const. art. 2, § 6 (“Every person may freely
speak, write, and publish on all subjects, being responsible for abuse of that
right.”). But because we resolve this issue on the narrow ground of the First
Amendment, we need not reach the Arizona Constitution. See Freeport
McMoran, 228 Ariz. at 478 ¶ 15, 268 P.3d at 1135.


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    PHOENIX NEWSPAPERS v. HON. REINSTEIN/STATE/MORAN
                   Opinion of the Court

grand jury, relying on a reporter’s privilege under state law; the state trial
court ordered him to answer the questions. Id. at 668. The Branzburg
plurality rejected the privilege claim, citing the public’s interest in effective
law enforcement and the important role of grand juries. Id. at 690–91.

¶21            The plurality observed, however, that “news gathering is not
without its First Amendment protections.” Id. at 707. The plurality also
found “merit in leaving state legislatures free, within First Amendment
limits, to fashion their own standards.” Id. at 706. The plurality recognized
that “state courts [may] . . . respond[] in their own way and constru[e] their
own constitutions so as to recognize a news[person]’s privilege, either
qualified or absolute.” Id. Justice Powell, who cast the decisive concurring
vote, suggested that the First Amendment requires a “case-by-case”
balancing “between freedom of the press [not to disclose information] and
the obligation of all citizens to give relevant testimony with respect to
criminal conduct.” Id. at 710.

¶22           In Farr v. Pitchess, 522 F.2d 464 (9th Cir. 1975), the Ninth
Circuit Court of Appeals interpreted Branzburg to establish a qualified
privilege for journalists. The Ninth Circuit considered the extent of
protection afforded by the First Amendment’s free press provision to a
newspaper reporter who resisted judicially-ordered disclosure of his news
sources. Id. at 466. In the midst of the Charles Manson and “Manson
Family” murder trial, a reporter obtained from two separate sources two
copies of a purported confession by Susan Atkins, a Manson co-defendant,
as a third party documented in a written statement. Id. The trial court
learned about the reporter’s possession of the confession and ordered the
reporter to disclose his sources. Id. The reporter refused and ultimately was
held in contempt of court for refusing to name his confidential sources. Id.

¶23             The Ninth Circuit recognized that Branzburg dealt precisely
with the First Amendment’s free press provision as it affected testimony
sought to be produced before a grand jury; however, it concluded that “the
opinion appears to teach broadly enough to be applied to other civil or
criminal judicial proceedings as well.” Id. at 467. The court observed that
“[i]t [was] clear that Branzburg recognize[d] some First Amendment
protection of news sources,” which was a qualified, not absolute, “First
Amendment shield” that protects journalists against compelled disclosure
in all judicial proceedings. Id.

¶24           In Shoen I, and subsequently Shoen II, the Ninth Circuit once
again opined on the journalist’s privilege and recognized that eight of the
other nine circuit courts that had addressed the issue read Branzburg as


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establishing a qualified privilege for journalists. Shoen v. Shoen, 5 F.3d 1289,
1292–93 & n.5 (9th Cir. 1993) (“Shoen I”); Shoen II, 48 F.3d at 416. The Ninth
Circuit opined that “[r]ooted in the First Amendment, the privilege is a
recognition that society’s interest in protecting the integrity of the
newsgathering process, and in ensuring the free flow of information to the
public, is an interest of sufficient social importance to justify some
incidental sacrifice of sources of facts needed in the administration of
justice.” Shoen I, 5 F.3d at 1292 (internal quotation marks and citation
omitted).

¶25            Although not binding, the Ninth Circuit’s reasoning in Farr,
Shoen I, and Shoen II is persuasive. See Skydive Ariz., Inc. v. Hogue, 238 Ariz.
357, 365 ¶ 29, 360 P.3d 153, 161 (App. 2015) (providing that decisions of the
Ninth Circuit and other federal circuit courts are not binding, but
persuasive authority to which Arizona courts may look). Consequently,
under the First Amendment, journalists enjoy a constitutional qualified
privilege against compelled disclosure of information gathered in the
course of their work.3 Shoen II, 48 F.3d at 414, 416. Because the “privilege is
qualified, not absolute,” “the process of deciding whether the privilege is
overcome requires that the claimed First Amendment privilege and the
opposing need for disclosure be judicially weighed in light of the
surrounding facts, and a balance struck to determine where lies the
paramount interest.” Shoen I, 5 F.3d at 1292–93. The privilege “applies to a
journalist’s resource materials even in the absence of the element of
confidentiality.” Id. at 1295. “[T]he absence of confidentiality may be
considered in the balance of competing interests as a factor that diminishes
the journalist’s, and the public’s, interest in non-disclosure.” Id.

¶26          Once the reporter invokes the privilege, “the burden shifts to
the requesting party to demonstrate a sufficiently compelling need for the

3      Although the trial court found that the Media Shield Law “codified”
the First Amendment protection, the statute provides independent
protection from the qualified privilege afforded to journalists by the First
Amendment’s free press provision. After recognizing that the First
Amendment provided journalists protection for their news sources, the
Branzburg plurality invited state legislatures to “fashion their own
standards” and “constru[e] their own constitutions so as to recognize a
[reporter’s] privilege.” See 408 U.S. at 706. The Arizona Legislature enacted
the Media Shield Law before Branzburg invited states to fashion their own
standards. Thus, this statutory protection was created independent of the
First Amendment protection as interpreted by Branzburg and its progeny.



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                   Opinion of the Court

journalist’s material.” Id. at 1296. That is, “[t]o overcome a valid assertion
of the journalist’s privilege by a nonparty, a civil litigant seeking
information that is not confidential must show that the material is:
(1) unavailable after exhaustion of all reasonable alternative sources;
(2) noncumulative; and (3) clearly relevant to an important issue in the
case.”4 Shoen II, 48 F.3d at 418. Moreover, the litigant “must . . . show[] actual
relevance; a showing of potential relevance will not suffice.” Id. at 416.

¶27            Here, Moran has not met his burden of demonstrating a
“sufficiently compelling need for the journalist’s material.” Shoen I, 5 F.3d
at 1296. First, as discussed above, see supra at ¶¶ 15–16, Moran has not
shown that he has exhausted all reasonable alternative sources for the
information contained in D’Anna’s notes. Second, Moran has made no
showing that the information he seeks does not duplicate information he
already possesses; specifically, the information in the two published
articles, the police interview with Fr. Terra, and Fr. Terra’s recorded 911
call. Finally, Moran has not shown how D’Anna’s notes are actually relevant
to his case. See Shoen II, 48 F.3d at 416 (“[T]here must be a showing of actual
relevance; a showing of potential relevance will not suffice.”). He merely
declares that the notes are necessary as impeachment evidence and for
“mitigation in this capital case.”



4       The Shoen II test applies when non-confidential information is
sought. In its petition, PNI asserts that Fr. Terra requested during one of his
interviews that some information he relayed to D’Anna be treated as
confidential and not for publication and that D’Anna agreed. Some courts
have held that when confidential information is sought from a journalist,
the First Amendment may require a more protective weighing. See Gonzales
v. Nat’l Broadcasting Co., Inc., 194 F.3d 29, 34 (2d Cir. 1998) (“[W]e now hold
that, while nonconfidential press materials are protected by a qualified
privilege, the showing needed to overcome the privilege is less demanding
than the showing required where confidential materials are sought.”);
Goldberg v. Amgen, Inc., 123 Fed. Supp. 3d 9, 17 (D.D.C. 2015)
(“Consequently, the showing needed to overcome a reporter’s privilege
when the information sought is nonconfidential is less demanding than the
showing required where confidential materials are sought.”); see also United
States v. Cutler, 6 F.3d 67, 71 (2d Cir. 1993) (stating that when a party seeks
confidential material, “disclosure may be ordered only upon a clear and
specific showing that the information is: highly material and relevant,
necessary or critical to the maintenance of the claim, and not obtainable
from other available sources”) (emphasis added).


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                   Opinion of the Court

¶28            The trial court erred by finding that Moran met his burden of
overcoming D’Anna’s reporter’s privilege. At a minimum, Moran cannot
overcome the reporter’s privilege without showing that he is unable to
interview Fr. Terra or that, having interviewed Fr. Terra, he still lacks an
alternative means of obtaining the information. If Moran is able to make
such a showing, the trial court may order an in camera review of the notes
to determine whether they contain actually relevant and noncumulative
information. The court may conduct the in camera review itself;
alternatively, it may have another judge conduct the review or appoint a
special master to do so. See State v. Boggs, 218 Ariz. 325, 331, 337 ¶¶ 17, 53,
185 P.3d 111, 117, 123 (2008) (finding that a capital defendant’s
constitutional rights were protected when a special master appointed for
the purpose of reviewing the items for relevance reviewed the seized
materials and returned any privileged documents to the defendant). In
sum, Moran has not met his burden of overcoming the privilege the First
Amendment affords to PNI. Consequently, because the affidavit was
defective, the trial court erred in denying the motion to quash the subpoena.

                              CONCLUSION

¶29          For the foregoing reasons, we accept jurisdiction, grant relief,
and vacate the trial court’s order.




                                  :AA




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