N.M. R. Evid. 11-514

As amended through May 8, 2024

Rule 11-514 - News media-confidential source or information privilege

A.Definitions. Unless a different meaning clearly appears from the context of this rule, for purposes of this rule,

(1) a source who communicates information is "confidential" if the identity of the source is disclosed privately and not intended for further disclosure except to other persons in furtherance of the purpose of the communication;

(2) information is "confidential" if communicated privately and not intended for further disclosure except to other persons in furtherance of the purpose of the communication;

(3) "in the course of pursuing professional news activities" does not include any situation in which a news media person participates in any act of criminal conduct;

(4) "news" means any written, oral, or pictorial information gathered, procured, transmitted, compiled, edited, or disseminated by, or on behalf of any person engaged or employed by a news media and so procured or obtained while such required relationship is in effect; and

(5) "news media" means newspapers, magazines, press associations, news agencies, wire services, radio, television, or other similar printed, photographic, mechanical, or electronic means of disseminating news to the general public.

B.Scope of the privilege. A person engaged or employed by news media for the purpose of gathering, procuring, transmitting, compiling, editing, or disseminating news for the general public or on whose behalf news is so gathered, procured, transmitted, compiled, edited, or disseminated has a privilege to refuse to disclose:

(1) a confidential source who provided information to the person in the course of pursuing professional news activities; and

(2) any confidential information obtained in the course of pursuing professional news activities.

The provisions of this rule do not apply to radio stations unless the radio station maintains and keeps open for inspection by a person affected by the broadcast, for a period of at least one hundred eighty (180) days from the date of an actual broadcast, an exact recording, transcription, or certified written transcript of the actual broadcast.

The provisions of this rule do not apply to television stations unless the television station maintains and keeps open for inspection by a person affected by the broadcast, for a period of at least one year from the date of an actual telecast, an exact recording or written transcript of the actual telecast.

C.Exception. There is no privilege under this rule in any action in which the party seeking the evidence shows by a preponderance of evidence, including all reasonable inferences, each of the following:

(1) a reasonable probability exists that a news media person has confidential information or sources that are material and relevant to the action;

(2) the party seeking disclosure has reasonably exhausted alternative means of discovering the confidential information or sources sought to be disclosed;

(3) the confidential information or source is crucial to the case of the party seeking disclosure; and

(4) the need of the party seeking the confidential source or information is of such importance that it clearly outweighs the public interest in protecting the news media's confidential information and sources.

D.Procedure. If a person defined in Paragraph B claims the privilege, and the court is asked to determine whether the exception applies, a hearing shall be held in open court to consider all information, evidence, or argument deemed relevant by the court. If possible, the determination of whether the exception applies shall be made without requiring disclosure of the confidential source or information sought to be protected by the privilege.

If it is not possible for the court to make a determination of whether the exception applies without the court knowing the confidential source or information sought to be protected, the court may issue an order requiring disclosure to the court alone, in camera.

Following the in camera hearing, the court shall enter written findings of fact and conclusions of law without disclosing any of the matters for which the privilege is asserted, and a written order identifying what, if anything, shall be disclosed.

Evidence submitted to the court in camera, and any record of the in camera proceedings, shall be sealed and preserved to be made available to an appellate court in the event of an appeal. The contents of the sealed evidence shall not be revealed without the consent of the person asserting the privilege.

All counsel and parties shall be permitted to be present at every stage of the proceedings under this rule, except at the in camera hearing. The person asserting the privilege and counsel for that person shall be the only persons permitted to be present during the in camera proceedings with the court.

Any order requiring an in camera disclosure or ordering or denying disclosure may be appealed by any party or by the person asserting the privilege, if not a party, in the procedural manner provided by the Rules of Appellate Procedure.

N.M. R. Evid. 11-514

Adopted, effective 11/1/1982; as amended, effective 12/1/1993; as amended by Supreme Court Order No. 13-8300-025, effective for all cases pending or filed on or after12/31/2013.

ANNOTATIONS The 2013 amendment, approved by Supreme Court Order No. 13-8300-025, effective December 31, 2013, clarified the language of the rule, deleted the definitions of "newspaper", "news agency", "magazine", "press association", and "wire service"; in Paragraph A, in the introductory sentence, after "context of this rule", deleted "as used in" and added "for purposes"; deleted former Subparagraph (1), which defined a "confidential" communication, and added a new Subparagraph (1); added Subparagraph (2); in Subparagraph (3), after "pursuing professional", added "news" and after "participates in any act", deleted "involving physical violence, property damage or" and added "of"; deleted former Subparagraph (4), which defined "newspaper"; deleted former Subparagraph (5), which defined "news agency"; deleted former Subparagraph (7), which defined "magazine"; deleted former Subparagraph (8), which defined "press association"; and deleted former Subparagraph (9), which defined "wire service"; in Paragraph B, in the title, deleted "General rule of" and added "Scope of the"; in Subparagraph (1), after "confidential source" added "from or through whom any information was procured, obtained, supplied, furnished, gathered, transmitted, compiled, edited, disseminated, or delivered in the course of pursuing professional activities" and added the remainder of the sentence; in Subparagraph (2), after "pursuing professional", added "news"; in the first unnumbered sentence following Subparagraph (2), after "of this rule", deleted "insofar as it relates" and added "do not apply", and after "radio stations", deleted "shall not apply"; in the second unnumbered sentence following Subparagraph (2), after "of this rule", deleted "insofar as it related" and added "do not apply", and after "television stations", deleted "shall not apply", and after "an exact recording", deleted "transcription, kinescope film or certified" and added "or"; in Paragraph C, in the introductory sentence, after "reasonable inferences", deleted "that" and added "each of the following"; and in Paragraph D, in the first paragraph, after "claims the privilege", deleted "granted", in the third paragraph, after "and a written order", deleted "directing that disclosure either shall or shall not be made to the party seeking disclosure" and added the remainder of the sentence; in the second sentence of the fourth paragraph, after "The contents", added "of the sealed evidence" and after "shall not", deleted "otherwise", and in the first sentence of the fifth paragraph, after "in camera hearing", deleted "at which no counsel or party, except the" and in the second sentence, after "person shall be", added "the only persons" and after "permitted to be present", added the remainder of the sentence. The 1993 amendment, effective December 1, 1993, deleted "his" preceding "professional" in Subparagraphs A(2), B(1), and B(2), and deleted "trial" preceding "court" throughout Paragraph D.

For sealing of court records, see Rule 1-079 NMRA. Law reviews. - For article, "Survey of New Mexico Law, 1982-83: Evidence," see 14 N.M.L. Rev. 161 (1984). For article, "Defamation in New Mexico," see 14 N.M.L. Rev. 321 (1984). For article, "Separation of Powers and the Judicial Rule-Making Power in New Mexico: The Need for Prudential Restraints," see 15 N.M.L. Rev. 407 (1985). For note, "Coopting the Journalist's Privilege: Of Sources and Spray Paint," see 23 N.M.L. Rev. 435 (1993).