substantially similar evidence through less intrusive
sources.
The expansion of the Shield Law by amendments
shows the Legislature’s continued commitment to
protect newspersons from compulsory testimony,
particularly when it is sought by the State. In re Schuman,
114 N.J. 14, 24 (1989); In re Woodhaven Lumber & Mill
Work, 123 N.J. 481, 489 (1991). In re Schuman, 114
N.J. at 27, held that information that the reporter
gathered in the course of his job was privileged, even
though it had been published in the newspaper, and the
State could not compel the reporter to testify. The Court
explained that the 1979 amendment, which provides
that “[p]ublication shall constitute a waiver [of the Shield
Law] only as to the specific materials published,” pertains
only to information sought by criminal defendants in
preparing a defense. Id. In re Woodhaven Lumber, 123
N.J. at 497-98, held that photographs taken by reporters
at the scene of a burning fire did not come within the
eyewitness exception to Shield Law, N.J.S.A. 2A:84A-
21a(h), since that exception applies to only the doing of
a thing or deed, and not all of the resulting consequences.
IV. SUBPOENA DUCES TECUM
A. Generally
A subpoena duces tecum is a process by which a court
or other body requires the production before it of
documents, papers, or tangible things. Subpoenas duces
tecum issued by the courts are governed by R. 1:9-2.
A valid subpoena duces tecum must specify its subject
with reasonable certainty, and there must be a substantial
showing that the books or papers sought contain evidence
relevant and material to the issue for which these
materials are sought. State v. Cooper, 2 N.J. 540, 556
(1949); Greenblatt v. New Jersey Bd. of Pharmacy, 214 N.J.
Super. 269, 275 (App. Div. 1986). If the specification is
so broad and indefinite as to be oppressive and in excess
of the demandant’s necessities, the subpoena is not
sustainable. Cooper, 2 N.J. at 556. Courts may quash or
modify subpoenas if compliance would be unreasonable
or oppressive. R. 1:9-2. While the allowable amount of
pretrial discovery may be broad, is not unlimited. The
information must be relevant to the subject matter
involved in the pending action. Oppenheimer Fund, Inc.
v. Sanders, 437 U.S. 340, 351 (1978). The party seeking
discovery has the burden of demonstrating relevance.
American Elec. Power Co, Inc. v. United States, 191 F.R.D.
132, 136 (S.D. Ohio 1999). While relevance is a major
factor to be considered in determining the amount of
discovery to be produced, it is not conclusive and must be
weighted against other factors, including burdensomeness.
NL Indus. Inc. v. Commercial Union Ins. Co. v. Certain
Underwriters at Lloyd’s, 144 F.R.D. 225, 234 (D.N.J.
1992); see Nestle Foods Corp. v. Aetna Ca. & Sur. Co., 135
F.R.D. 101, 106 (D.N.J. 1990), aff’d, No. 89-1701
(D.N.J. Nov. 13, 1990).A non-party resisting a subpoena duces tecum may
challenge the relevance of material sought to the
underlying action. See Compaq Computer Corp. v.
Packard Bell Elec., Inc., 163 F.R.D. 329, 335 (N.D.Cal.
1995); Composition Roofers Union Local 30 Welfare Trust
Fund v. Gravely Roofing Enter., Inc., 160 F.R.D. 70, 73
(E.D.Pa. 1995). Status as a non-party to the underlying
litigation entitles the witness to consideration of the
expense and inconvenience. Concord Boat Corp. v.
Brunswick Corp., 169 F.R.D. 44, 49 (S.D.N.Y. 1996)
(citing Fed.R.Civ.P. 45(c)(2)(B) (“an order to compel
production shall protect any person who is not a party
from significant expense... “)). The determination of
issues of burden and reasonableness is committed to the
sound discretion of the trial court. Concord, 169 F.R.D.
at 49. “Whether a subpoena imposes upon a witness an
‘undue burden’ depends upon ‘such factors as relevance,
the need of the party for the documents, the breadth of
the document request, the time period covered by it, the
particularity with which the documents are described
and the burden imposed.’” Id. (quoting United States v.
International Bus. Mach. Corp., 83 F.R.D. 97, 104
(S.D.N.Y. 1979)). A subpoena that sweepingly pursues
material with little apparent or likely relevance is
considered overbroad on its face, exceeding the bounds of
reasonable discovery. Concord, 169 F.R.D. at 50. Note
that the standards of relevancy and materiality used to
determine the reasonableness of a subpoena duces tecum at
trial are more stringent than the tests employed for
subpoenas issued by the grand jury. In re Grand Jury
Subpoena Duces Tecum, 143 N.J. Super. 526, 534 (Law
Div. 1976).In State v. Dyal, 97 N.J. 229, 232 (1984), the Court
held that where the police can show a reasonable basis to
believe that the operator of a motor vehicle was
intoxicated at the time of the accident, a municipal judge
may issue a subpoena duces tecum for the results of a
hospital’s blood tests performed on him or her. In
establishing the reasonable basis for their belief, the
police may rely on objective facts known to them at the
time of the event or within a reasonable time thereafter.
Id. In State v. Bodtmann, 239 N.J. Super. 33, 40 (App.
Div. 1990), the Appellate Division confirmed that less
than probable cause is required for the issuance of a Dyal