§ 22.024.Limited Disclosure Generally

The test that overcomes the privilege, and every element must be met.

After notice and an opportunity to be heard, a court may compel a journalist, the journalist's employer, or a person under independent contract with a journalist to disclose, if the person seeking the material makes a clear and specific showing that:

(1) all reasonable efforts have been exhausted to obtain the information from alternative sources. (2) the subpoena is not overbroad, unreasonable, or oppressive and, when appropriate, limited to verification of published information and the circumstances relating to its accuracy. (3) reasonable and timely notice was given.

(4) the interest of the party subpoenaing the information outweighs the public interest in gathering and dissemination of news, including the journalist's concerns. (5) the process is not being used to obtain peripheral, nonessential, or speculative information. (6) the material is relevant and material to the proper administration of the official proceeding and essential to the maintenance of a claim or defense.

The standard of proof is stated twice over. "Clear and specific showing" applies to all six, and the sixth requires the material to be essential — not merely relevant, not merely helpful.

The first factor is where most applications fail. A party must show it tried everything else, which usually means completing its other discovery before approaching the journalist at all.

Note who can be compelled: the journalist, the employer, and an independent contractor. The test is the same for each.