Summary
The Nevada Supreme Court reversed a lower court’s order allowing police and district attorneys to search through assertedly privileged newsgathering material on seized electronic devices of murdered Las Vegas journalist Jeff German.
The Upshot
- The highest court in Nevada held the reporter’s privilege survived German’s death and was properly asserted by his employer, the Las Vegas Review-Journal.
- The district court erred by entering an order that would allow representatives of the police and D.A.’s office to search German’s devices for information relevant to the criminal prosecution of German’s alleged killer.
- The devices contain newsgathering information – notes pertaining to news investigations and, most critically, the identities of German’s confidential sources, some of whom work for the police and the D.A.’s office. Because of this, neutral special masters must conduct the search and then allow the newspaper to review its materials to decide whether to assert its privilege in them.
The Bottom Line
The Nevada Supreme Court recognized that, for the reporter’s privilege to be effective, the reporter’s employer must have the power to assert it upon the reporter’s death. The court also recognized that allowing law enforcement to search a journalist’s devices to identify what might be privileged newsgathering material would destroy the privilege.
In a first-of-its-kind decision, the Nevada Supreme Court has ruled that police are prohibited from searching through privileged newsgathering material on the seized electronic devices of deceased Las Vegas Review-Journal reporter Jeff German.
The Court issued the opinion in Las Vegas Review-Journal, Inc. v. State of Nevada, No. 85553, on October 5, 2023.
The decision is the first holding that the reporter’s privilege – which shields from disclosure any information gathered by a journalist in reporting the news – survives the death of the journalist who gathered the information. Forty-eight states and the District of Columbia have a reporter’s privilege by statute or case law.
The Nevada Supreme Court reversed the order of the Eighth Judicial District Court, which would have allowed the Las Vegas Metropolitan Police Department (Metro) and the Clark County District Attorney’s Office to examine German’s phone and computers to search for information relevant to the criminal prosecution of the alleged killer.
German was found stabbed to death outside his home in September 2022. Robert Telles, the Clark County Public Administrator who was the subject of several articles by German regarding Telles’ alleged misconduct in office, was indicted for German’s murder and is awaiting trial.
Metro detectives seized German’s cell phone and computers after arriving at the crime scene, prompting the Review-Journal to file a civil action under Nevada’s return-of-property statute to prevent the devices from being searched. German was a veteran investigative reporter who had cultivated confidential sources in numerous government agencies, including Metro, the D.A.’s Office, and the Public Administrator’s Office. The Review-Journal received several calls from sources of German who expressed fear of being “outed” if the search proceeded.
The district court issued a preliminary injunction in October 2022 preventing Metro and the D.A.’s Office from searching the devices pending resolution of the civil action. However, District Judge Michelle Leavitt later dissolved the injunction and ordered that the devices be searched over the Review-Journal’s objections. The court established a search team consisting of two representatives from Metro and two representatives from the D.A.’s Office who would search German’s phone and computers to identify privileged newsgathering material. Only then would the material identified by the search team be provided to the Review-Journal, which could choose whether to object to wider disclosure of it in the criminal case. The district court’s order thus not only allowed disclosure of the newspaper’s privileged materials, it had the potential to reveal the identities of confidential sources in Metro and the D.A.’s Office to their colleagues on the search team.
The Review-Journal appealed the order, and the Supreme Court reversed. The Court held that “the search protocol entered by the district court constitutes an abuse of discretion because it allows [the] privilege to be violated before the court has the opportunity to weigh the privilege against any assertion of countervailing constitutional rights.”
While the district court’s order prohibited search team members from disclosing any privileged information to their colleagues or others, “the search team ‘also possesses a conflicting interest in pursuing the investigation, and, human nature being what it is, occasionally some [search]-team [members] will make mistakes or violate their ethical obligations,’” the Court wrote.
“Permitting the search to proceed would therefore allow ‘the government’s fox [to be] left in charge of the appellants’ henhouse.’”
The Court directed the district court to establish a search team consisting of retired U.S. Magistrate Judge Peggy Leen and Police Protective Association general counsel David Roger, who have no association with the criminal case, and who the Review-Journal had requested perform any such review. They will search the devices for newsgathering material and forward it to the Review-Journal, which may then choose whether to assert the privilege over those materials or allow them to be used for trial. The district court will hear any disputes over any privilege assertion.
The unusual circumstances in this case involving the privilege in newsgathering materials of a murdered journalist led Metro and the D.A.’s Office to argue that the Review-Journal lacked standing to assert the privilege. The Supreme Court’s decision rejected this argument, observing that “[t]o hold that the privilege [Nevada Revised Statute] 49.275 creates ends with German’s death is not required by the statute’s plain text and would be directly contrary to the statute’s purpose.”
The case drew nationwide attention from media organizations and whistleblower advocacy groups, some of which filed amicus briefs in support of the Review-Journal. “[T]he Review-Journal has reason to believe that the seized devices contain the identities of many, if not all, of Mr. German’s sources – including confidential sources that may be employed by law enforcement or the district attorney,” amici wrote in a brief by the Reporter’s Committee for Freedom of the Press and 53 Media Organizations. “The chilling effect that disclosure of their identities would inflict is in no way diminished by Mr. German’s killing.”
The Review-Journal was also supported by amici The Signals Network and the Government Accountability Project.
Ashley Kissinger, of Ballard Spahr’s Media and Entertainment Law group, represented the Review-Journal along with Joel Tasca, Kennison Lay, David Chavez, Madeleine Coles, Joseph Dagher, Matthew Cate, and Elizabeth Schilken. Ballard Spahr worked with co-counsel David Chesnoff and Richard Schonfeld of Chesnoff Schonfeld, a criminal defense law firm in Las Vegas.
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