10/15/2025
DA 24-0328
Case Number: DA 24-0328
IN THE SUPREME COURT OF THE STATE OF MONTANA
2025 MT 237
EQT CHAP LLC,
Appellant,
v.
ENVIRONMENTAL HEALTH SCIENCES,
Appellee.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and For the County of Gallatin, Cause No. DV-23-886
Honorable Rienne H. McElyea, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Murry Warhank. (argued), Jackson, Murdo & Grant, P.C., Helena,
Montana
For Appellee:
Peter Michael Meloy, Meloy Law Firm, Helena, Montana
Michael Berry (argued), Ballard Spahr LLP, Philadelphia,
Pennsylvania
Argued: February 26, 2025
Submitted: July 9, 2025
Decided: October 15, 2025
Filed:
__________________________________________
Clerk
Justice Laurie McKinnon delivered the Opinion of the Court.
¶1 EQT CHAP LLC (“EQT”) appeals the February 28, 2024 Order Re Motion to
Quash Subpoena (“Order”) of the Eighteenth Judicial District Court, Gallatin County.1 The
District Court granted Environmental Health Sciences’ (“EHS”) Motion to Quash the
Subpoena served on it by EQT. The District Court concluded that Montana’s Media
Confidentiality Act (“Montana’s Act”) applied to the subpoenaed records, thereby making
them absolutely privileged and not subject to disclosure. We reverse and remand for
further proceedings.
¶2 We restate the issue on appeal as follows:
Did the District Court err in concluding that Montana’s Act, not Pennsylvania’s
privilege law, governs the subpoenaed records, which arose from reporting that
occurred in Pennsylvania?
FACTUAL AND PROCEDURAL BACKGROUND
¶3 In April 2022, Bryan Latkanich (“Latkanich”) requested that the Pennsylvania
Department of Environmental Protection investigate the alleged contamination of his
Pennsylvania property’s water, air, and soil. Kristina Marusic is an employee of EHS who
lives in Pennsylvania. She conducted a study on the effects of fracking and collected air,
water, and urine samples from the Latkaniches and their Pennsylvania property in 2019.
The communications and sampling performed by Ms. Marusic influenced a four-part news
1
On January 21, 2025, this Court entered an order modifying the caption of the case to accurately
reflect the alignment of the parties to this appeal. The accurate caption is reflected here.
2
series titled “Fractured,” which was published by the reporting arm of EHS.2 The series
focused on pollution from fracking operations and the effects on local Pennsylvanians,
including the Latkanich family.
¶4 After receiving an unfavorable determination letter from the Pennsylvania
Department of Environmental Protection, Latkanich appealed to the Pennsylvania
Environmental Hearing Board. EQT was involved in the appeal because of its connection
to fracking operations on the Latkanich property. The Environmental Hearing Board
issued a subpoena to EHS that contained EQT’s various requests for production seeking
documents related to Ms. Marusic’s sampling, reporting, and communications. EHS is
headquartered in Bozeman, Montana. Although the CEO of EHS, Douglas Fischer, works
out of Bozeman, EHS’s journalists work remotely from various states. In October 2023,
the subpoena was domesticated in Montana and served on EHS.
¶5 In November 2023, EHS moved to quash the subpoena and argued that all
information sought was absolutely privileged under Montana’s Act. EQT responded that
the sought information was not privileged because under Montana’s conflict-of-laws rule,
Pennsylvania’s privilege law applied to the subpoena. The District Court found that Ms.
Marusic was based out of Pennsylvania and that the subpoenaed communications, research,
and work product all occurred in Pennsylvania. Yet, it concluded that although
Pennsylvania has the most significant relationship to the communications, Montana law
2
The reporting arm of EHS is called Environmental Health News. We use EHS and Environmental
Health News interchangeably.
3
should still apply under the Restatement (Second) of Conflict of Laws § 139. The District
Court granted EHS’s Motion to Quash.
¶6 After we issued our decision in Goguen v. NYP Holdings, Inc., 2024 MT 47,
415 Mont. 356,
544 P.3d 868, EQT moved for relief from the Order pursuant to
Rule 60(b)(6). The District Court denied EQT’s motion and reasoned that its Order was
consistent with our analysis and approach in Goguen. The current appeal ensued, and this
Court heard oral argument from the parties on February 26, 2025. On May 5, 2025, the
parties jointly notified this Court that Latkanich had withdrawn his appeal in front of the
Pennsylvania Environmental Hearing Board. Latkanich had also brought a civil action
against EQT in Pennsylvania state court, but discovery in the civil action was stayed when
the original subpoena was issued in the Environmental Hearing Board proceeding. Since
the original subpoena was issued only in the Environmental Hearing Board proceeding,
and not the civil action, we dismissed the case as moot and reasoned that no relief could be
granted regarding a subpoena issued in a proceeding that no longer exists. However, we
were made aware that an identical subpoena had been filed in the Pennsylvania civil action
and domesticated in Montana on May 21, 2025. We subsequently granted EHS’s
Unopposed Petition for Rehearing and submitted the matter for decision without further
briefing or argument.
STANDARD OF REVIEW
¶7 We review decisions on choice of law de novo. Buckles v. BH Flowtest, Inc.,
2020 MT 291, ¶ 8,
402 Mont. 145,
476 P.3d 422. We review a district court’s findings of
fact for clear error. Buckles, ¶ 8.
4
DISCUSSION
¶8 Did the District Court err in concluding that Montana’s Act, not Pennsylvania’s
privilege law, governs the subpoenaed records, which arose from reporting that
occurred in Pennsylvania?
¶9 In Montana, the first step in a choice-of-law analysis requires determining whether
an actual conflict exists. Goguen, ¶ 21. “[I]f the laws and interests of the concerned states
are not in conflict, the result is deemed a false conflict or no conflict at all.” Goguen, ¶ 21
(internal quotations omitted; citation omitted). An actual conflict only exists where
choosing one state’s law over the other will determine the outcome of the case. Goguen,
¶ 21. A false conflict exists if “application of either state’s laws ‘are substantially the same
and would produce the same results.’” Goguen, ¶ 21 (quoting Mowrer v. Eddie, 1999 MT
73, ¶ 27,
294 Mont. 35,
979 P.2d 156). If no actual conflict exists, the law of the forum
state applies, and no additional analysis is necessary. Goguen, ¶ 21.
¶10 Here, we must analyze Montana’s Act against the Pennsylvania Shield Law and the
qualified reporter’s privilege under the First Amendment to the U.S. Constitution, which
Pennsylvania also applies. Montana’s Act states:
Without a person’s consent, a person, including any newspaper, magazine,
press association, news agency, news service, radio station, television
station, or community antenna television service or any person connected
with or employed by any of these for the purpose of gathering, writing,
editing, or disseminating news, may not be examined as to or may not be
required to disclose any information obtained or prepared or the source of
that information in any legal proceeding if the information was gathered,
received, or processed in the course of the person’s employment or business.
Section 26-1-902(1), MCA. Montana’s Act, thus, provides broad protection for news
agencies, like EHS. It protects all information from disclosure, including documents and
5
persons, and the sources of that information, whether confidential or not. The parties do
not dispute, and we agree, that if Montana’s Act applies to the subpoenaed records, EHS
may assert the broad privilege thereunder and justifiably withhold the documents sought
by EQT.
¶11 In contrast, Pennsylvania’s protections are qualified and narrower. Pennsylvania’s
Shield Law states:
No person engaged on, connected with, or employed by any newspaper of
general circulation or any press association or any radio or television station,
or any magazine of general circulation, for the purpose of gathering,
procuring, compiling, editing or publishing news, shall be required to
disclose the source of any information procured or obtained by such person,
in any legal proceeding, trial or investigation before any government unit.
42 Pa. Cons. Stat. § 5942(a) (2025) (emphasis added). While Montana’s Act broadly
protects any information gathered in the course of the news agency’s business, the
Pennsylvania Shield Law only protects the source of the information.
42 Pa. Cons. Stat.
§ 5942(a); Commonwealth v. Bowden,
838 A.2d 740, 752 (Pa. 2003) (explaining that the
Pennsylvania Shield Law protects documents but only to the extent those documents
“could breach the confidentiality of the identity of a human source”). Pennsylvania’s
Shield Law has consistently been recognized as an absolute protection of the source’s
identity from compelled disclosure. Castellani v. Scranton Times, L.P.,
956 A.2d 937, 950
(Pa. 2008). The Shield Law, however, only applies to confidential sources who are
persons. The statute states “that no person in a newsgathering enterprise ‘shall be required
to disclose the source of any information procured or obtained,’. . . which plainly
presupposes a confidential source.” Bowden,
838 A.2d at 748 n.6 (emphasis omitted; citing
6
42 Pa. Cons. Stat. § 5942(a)). The court found it significant that the statute is entitled
“Confidential communications to news reporters.” Bowden,
838 A.2d at 748 n.6 (emphasis
altered; internal quotations omitted; citing
42 Pa. Cons. Stat. § 5942(a)). In Bowden, the
Supreme Court of Pennsylvania explained that “documents may be considered sources for
Shield Law purposes, but only where production of such documents, even if redacted,
could breach the confidentiality of the identity of a human source and thereby threaten the
free flow of information from confidential informants to the media.” Bowden,
838 A.2d at
752 (citing Davis v. Glanton,
705 A.2d 879, 882, 885 (Pa. Super. Ct. 1997)). Further,
“[t]he obvious purpose of the Shield Law is to maintain a free flow of information to
members of the news media.” Hatchard v. Westinghouse Broadcasting Co.,
532 A.2d 346,
350 (Pa. 1987). Thus, Pennsylvania’s Shield Law was enacted to protect the free flow of
information to the news media in their role as information providers to the general public.
In Hatchard, the court saw “no apparent reason why the objective of promoting the free
flow of information to the media would be defeated so long as any documentary
information that could lead to the discovery of the identity of a confidential informant is
shielded from disclosure.” Hatchard,
532 A.2d at 350.
¶12 In 1991, Pennsylvania incorporated into its constitutional common law a second
privilege. In McMenamin v. Tartaglione, the Commonwealth Court of Pennsylvania,
noting that it was error for the trial court to have applied the Shield Law to a
non-confidential source, applied the qualified reporter’s privilege, which arises out of the
United States Supreme Court’s decision in Branzburg v. Hayes,
408 U.S. 665,
92 S. Ct.
2646 (1972). McMenamin v. Tartaglione,
590 A.2d 802, 811 (Pa. Commw. Ct. 1991);
7
Bowden, 838 A.2d at 753 n.10. McMenamin was affirmed by the Supreme Court of
Pennsylvania, and a more comprehensive analysis was thereafter applied in Bowden, noting
that McMenamin had already applied the qualified reporter’s privilege. McMenamin v.
Tartaglione,
590 A.2d 753 (Pa. 1991); Bowden,
838 A.2d at 753-55. The Bowden court
explained that the United States Court of Appeals for the Third Circuit had indicated a
majority of the Branzburg Justices “supported some quantum of privilege for reporters”
under the First Amendment. Bowden,
838 A.2d at 752. Thus, after acknowledging the
Third Circuit’s recognition of a qualified reporter’s privilege in Riley v. City of Chester,
612 F.2d 708 (3d Cir. 1979), United States v. Cuthbertson,
630 F.2d 139 (3d Cir. 1980),
and United States v. Criden,
633 F.2d 346, 358-59 (3d Cir. 1980), Pennsylvania also
recognized the Third Circuit’s approach to the qualified reporter’s privilege arising out of
the First Amendment to the U.S. Constitution. Bowden,
838 A.2d at 752-60.
¶13 The Third Circuit’s qualified reporter’s privilege recognizes “that reporters have a
qualified right to refuse to disclose their sources and materials.” Bowden,
838 A.2d at 752
(citing a series of Third Circuit cases discussing the privilege). A party seeking to
overcome the privilege must satisfy a three-part test.3 Bowden,
838 A.2d at 755. First, the
party must show that it has made an effort to obtain the information from other sources.
Bowden,
838 A.2d at 755. Second, the party must demonstrate that the only way to access
the information is through the journalist and the journalist’s sources. Bowden,
838 A.2d
at 755. Third, the party must persuade the court that the information is crucial to the claim.
3
Since the District Court concluded that Montana law applied, it made no findings of fact
regarding this three-part test.
8
Bowden, 838 A.2d at 755. However, this three-part test is not rigidly applied, differs from
case to case, and “those asserting the privilege must overcome the well-settled principle
that evidentiary privileges are not favored in litigation because they ‘are in derogation of
the search for truth.’” Bowden,
838 A.2d at 754 (quoting Criden,
633 F.2d at 358). Thus,
Pennsylvania only protects records to the extent they would reveal a confidential source of
the information but recognizes other discretionary and flexible protections based on the
Third Circuit’s approach to the uncodified qualified reporter’s privilege. Here, whereas
Montana’s Act would clearly protect the subpoenaed records from disclosure,
Pennsylvania’s privilege law would provide an avenue for disclosure. Consequently,
Montana’s privilege law and Pennsylvania’s privilege law are not substantially the same
and the respective applications of each may not produce the same results. Therefore, we
conclude that an actual conflict of laws exists.4
¶14 Next, as Montana has no statutory directive on choice of law related to this privilege
question, we consider the Restatement (Second) of Conflict of Laws § 6 factors:
(a) the needs of the interstate and international systems,
(b) the relevant policies of the forum,
(c) the relevant policies of other interested states and the relative interests
of those states in the determination of the particular issue,
(d) the protection of justified expectations,
(e) the basic policies underlying the particular field of law,
(f) certainty, predictability and uniformity of result, and
4
On remand, the District Court must apply Pennsylvania law to determine whether some or all of
the subpoenaed records are privileged. Since the District Court made no findings of fact related
to the qualified reporter’s privilege, it is unclear if Pennsylvania definitively does or does not
protect the subpoenaed records. Even if the District Court concludes that the subpoenaed records
are protected from disclosure under Pennsylvania law (thus, reaching the same result Montana’s
Act provides), for purposes of this appeal, we conclude that an actual conflict sufficiently exists
between Montana’s Act and Pennsylvania’s privilege law such that we can proceed with a full
conflict-of-laws analysis.
9
(g) ease in the determination and application of the law to be applied.
Restatement (Second) of Conflict of Laws § 6(2) (1971) [hereinafter “Restatement
(Second)”].
¶15 The analysis under the first factor “should seek to further harmonious relations
between states and to facilitate commercial intercourse between them.” Restatement
(Second) § 6 cmt. d. Section 6(2)(a) “does not lean towards the importance of any
particular state’s law, but rather ‘fosters harmonious relationships between states by
respecting the substantive law [. . .] of a particular issue litigated in a foreign jurisdiction.’”
Goguen, ¶ 24 (quoting Phillips v. GMC, 2000 MT 55, ¶ 35,
298 Mont. 438,
995 P.2d 1002).
This first factor supports the application of the law of the state with the most significant
relationship to the issue. Goguen, ¶ 24; Phillips, ¶ 35; Buckles, ¶ 23. As we will further
explain infra, the District Court properly determined that Pennsylvania has the most
significant relationship to the issue: Montana is far removed from the substantive contest
in Pennsylvania; the underlying dispute will be adjudicated and the remedy imposed in
Pennsylvania; and the subpoena concerns documents regarding newsgathering that
centered in Pennsylvania. If we allow a Montana-based news organization, such as EHS,
to shield itself behind Montana’s Act and protect newsgathering that occurred in a foreign
state, we undermine that foreign state’s ability to allow its privilege laws to control the
substance of adjudications and remedies within its own borders. Applying Pennsylvania
law here would undoubtedly promote harmonious relationships between Pennsylvania and
Montana. Consequently, this first factor favors application of Pennsylvania’s privilege
law.
10
¶16 The second factor considers the relevant policies of the forum. Restatement
(Second) § 6(2)(b). The third factor considers “the relevant policies of other interested
states and the relative interests of those states in the determination of the particular issue.”
Restatement (Second) § 6(2)(c). Both factors analyze “whether applying the law of a state
would further the intended purpose of that law.” Goguen, ¶ 25 (citing Phillips, ¶ 37;
Restatement (Second) § 6 cmt. e). The relevant inquiry is “which state has the most
significant interest for the particular issue.” Goguen, ¶ 25 (citation omitted). In Goguen,
it was important to our analysis to define the precise conflict-of-laws issue: we emphasized
that the issue was which state’s law applied to the fair report privilege, which was distinct
from the question of which state’s law applied to the underlying defamation claim.
Goguen, ¶ 20. Defining the issue remains key to choice-of-law analyses. There is no
dispute that the underlying civil claims between Latkanich and the defendants, including
EQT, will be adjudicated in Pennsylvania pursuant to Pennsylvania law. The relevant issue
here is which state’s privilege law should apply to a subpoena lodged against a third-party
news agency headquartered in Montana when that subpoena relates to documents
concerning newsgathering that occurred in Pennsylvania.
¶17 Before considering how each state’s relevant policy relates to the precise issue we
have defined, we first outline each state’s policy as we did in Goguen. Goguen, ¶¶ 26-27.
The Supreme Court of Pennsylvania has stated that “[t]he obvious purpose of the Shield
Law is to maintain a free flow of information to members of the news media” by protecting
information that could lead to the discovery of a confidential informant. Bowden, 838 A.2d
at 750. If disclosure of the information does not threaten the anonymity of confidential
11
sources, Pennsylvania supports disclosure of that information, except to the extent the
qualified reporter’s privilege applies and the requisite demonstration of need has been
made to support disclosure. See Bowden, 838 A.2d at 752; Hatchard,
532 A.2d at 350
(explaining that the purpose of the Pennsylvania Shield Law is not furthered by protecting
from discovery information in the possession of the media where disclosure would not
reveal a confidential source). The Supreme Court of Pennsylvania has held that the
qualified reporter’s privilege under the First Amendment likewise parallels the policy
underlying Pennsylvania’s Shield Law. See Bowden,
838 A.2d at 753-54. As noted above,
Pennsylvania follows the Third Circuit approach and recognizes the principle that
evidentiary privileges restricting discovery are not favored in litigation. Bowden,
838 A.2d
at 754. Pennsylvania adheres to the principle that “it is important for courts faced with
privilege questions to consider whether a reporter’s source is confidential, because the lack
of a confidential source is a factor that favors production.” Bowden,
838 A.2d at 754
(citation omitted); see Criden,
633 F.2d at 355-56 (explaining that the need for
confidentiality is the basis for the privilege). Protecting the confidential source is the
purpose behind Pennsylvania’s privilege related to news agencies, but Pennsylvania still
provides a limited exception for those situations where the litigant has demonstrated the
information cannot be obtained from another source and the information is crucial to the
litigant’s claim.
¶18 The policy behind Montana’s Act differs. Since its original enactment in 1943,
Montana’s Act has undergone various amendments. Montana’s Act “was written to
encourage a free and dynamic press by protecting journalists and related media personnel
12
from compelled disclosure of sources and confidential information.” Sible v. Lee Enters.,
224 Mont. 163, 171-72,
729 P.2d 1271, 1276 (1986) (Hunt, J., concurring). Montana’s Act
explicitly shields a news agency and its reporters from being “required to disclose any
information obtained or prepared or the source of that information in any legal proceeding
if the information was gathered, received, or processed in the course of the person’s
employment or business.” Section 26-1-902(1), MCA (emphasis added). Therefore, while
Pennsylvania’s policy is to primarily protect confidential sources, Montana’s policy is to
shield all information related to newsgathering from compelled disclosure. There are no
exceptions under Montana’s Act to allow disclosure based on the qualified reporter’s
privilege.
¶19 The District Court focused its analysis of the second and third factors on which
state’s law has objectively stronger protections related to newsgathering. It concluded
that the second and third factors weigh in favor of applying Montana law because
Montana’s protection for a reporter’s research is broader and stronger. The District Court’s
analysis advances the following approach: when the conflict-of-laws question focuses on
which state’s privilege law applies, the second and third factors weigh in favor of the state
that has the broadest protection for the person or organization asserting the privilege. This
approach is incorrect because it is detached from the facts of the case. If the District Court’s
reasoning were to stand, then it would not matter where the conduct occurred: all that
matters would be which of the two states has the objectively stronger protections in place.
This ignores Pennsylvania’s adoption of federal constitutional common law recognized by
the Third Circuit that ensures, upon proper showing, crucially necessary information
13
unobtainable from another source should be disclosed. Pennsylvania’s policy underlying
its two privileges is not less important than Montana’s broad prohibition against any
disclosure. Pennsylvania has a Shield Law that distinguishes between confidential and
non-confidential sources, and people and documents. Pennsylvania also has a qualified
reporter’s privilege adopted by the Supreme Court of Pennsylvania following federal Third
Circuit precedent. At best, all that can be said is that Pennsylvania’s policy is different
from Montana’s policy—not that Pennsylvania is less interested in policies pertaining to
newsgathering and balancing competing demands and interests surrounding dissemination
of information. Since a conflict-of-laws analysis is fact-intensive, the analysis must be
tethered to the specific facts involved and not simply a discussion of how strong each
privilege is. Buckles, ¶ 11 (explaining “‘that any analysis under the Restatement approach
is necessarily driven by the unique facts, issues, applicable law, and jurisdictions
implicated in a particular case’” (quoting Talbot v. WMK-Davis, LLC, 2016 MT 247, ¶ 23,
385 Mont. 109,
380 P.3d 823)). The relevant inquiry focuses on which state has the
stronger policy interest in having its laws applied to the precise issue involved, and the
precise issue involved here is which state’s privilege law should apply to newsgathering
that occurred in Pennsylvania. “[I]t is fitting that the state whose interests are most deeply
affected should have its local law applied.” Restatement (Second) § 6 cmt. f.
¶20 Both parties assert that Goguen supports their respective positions. Goguen
involved a New York news agency and a New York reporter, but the facts here involve a
Montana-based news agency and a Pennsylvania reporter. EHS highlights this difference
and contends that Goguen is consistent with its opinion that the factors weigh in favor of
14
applying Montana law, namely because Montana has a stronger interest in having its
privilege laws applied to a Montana-based news organization—EHS—just as New York
had the stronger interest in having its privilege laws applied to the fair report privilege
asserted by the New York Post. In contrast, EQT highlights that our central analysis in
Goguen focused on where the conduct occurred and that here, the conduct occurred in
Pennsylvania. We agree with EQT’s position. The key inquiry is where the
communication occurred, rather than where the headquarters of the news organization lies.
¶21 In Goguen, we concluded that New York had the stronger interest in having its laws
applied to the fair report privilege, although the underlying defamation dispute centered in
Montana. Goguen, ¶ 27. We reached this conclusion in large part because the conduct
occurred in New York. Goguen, ¶ 27. Importantly, we noted that “[t]he conduct in
question occurred in New York, and New York has the more significant interest in
regulating the conduct of its citizens . . . . While conduct in New York may impact
residents of other states, the conduct nonetheless took place in New York.” Goguen, ¶ 27.
We stated that “‘New York’s interest in fixing the scope of a privilege applicable to
conduct taking place within its borders is paramount.’” Goguen, ¶ 26 (quoting Wilkow v.
Forbes, Inc., 2000 U.S. Dist. LEXIS 6587 at *20 (N.D. Ill. May 12, 2000)). Similarly,
here, Pennsylvania’s interest in fixing the scope of a privilege applicable to conduct taking
place within Pennsylvania’s borders is paramount.
¶22 The subpoenaed records relate to newsgathering that occurred in Pennsylvania—
not Montana. The District Court found that Ms. Marusic, a reporter of EHS based out of
Pennsylvania, collected various samples from the Latkanich property located in
15
Pennsylvania and from the Latkaniches themselves. Ms. Marusic’s work involved
communications she had in Pennsylvania. Her research and work product, including the
communications being subpoenaed, occurred in Pennsylvania. While the District Court
found that EHS is headquartered in Bozeman, Montana, it made no other factual findings
connecting the reporting to Montana.
¶23 If we were to conclude that the second and third factors favored Montana law, we
would be relying on a singular Montana connection—EHS’s headquarters—as
justification, while ignoring where the newsgathering occurred. It is only natural that the
state wherein the newsgathering and communications occurred is the state that has the most
significant policy interest in regulating whether the documents arising from the
newsgathering and communications are privileged or not. The headquarters of the
organization overseeing and disseminating the article is not controlling.5 Allowing a
Montana-based news organization to hide behind the location of its headquarters would
impede the free flow of information that Pennsylvania policy favors, which is an
unacceptable conclusion given the fact that the conduct occurred in Pennsylvania and
involved a Pennsylvania-based reporter, Pennsylvania residents, and Pennsylvania
property. The second and third factors favor the application of Pennsylvania law.
¶24 The fourth factor considers “the protection of justified expectations.” Restatement
(Second) § 6(2)(d). “Generally speaking, it would be unfair and improper to hold a person
5
The parties dispute whether EHS was domiciled in Montana or elsewhere at the time the
“Fractured” series was published. Because EHS’s domicile does not guide our analysis of the
second and third factors, it is irrelevant where EHS was in fact domiciled at the time of publication.
16
liable under the local law of one state when he had justifiably molded his conduct to
conform to the requirements of another state.” Restatement (Second) § 6 cmt. g. Even
assuming EHS would have some justifiable expectation that Montana privilege law would
apply because EHS is headquartered in Montana, this ignores where the communications
were made and where the underlying facts about which the communications were made
occurred. EQT has a justifiable expectation that Pennsylvania privilege law would apply
to a subpoena issued in connection with an ongoing suit in Pennsylvania, about
Pennsylvanians and their health and property, in which EQT is a defendant. This factor
weighs in favor of applying Pennsylvania law.
¶25 The fifth factor considers “the basic policies underlying the particular field of law.”
Restatement (Second) § 6(2)(e). In Goguen, we concluded that when there is a major
difference between the states’ laws, the fifth factor is inapplicable. Goguen, ¶ 29;
see Phillips, ¶ 66; Buckles, ¶ 29. There, the difference between New York law and
Montana law was not minor because New York’s fair report privilege was absolute, and
Montana’s privilege was qualified. Goguen, ¶ 29. Similarly, here, Montana’s Act provides
absolute protection to news agencies while Pennsylvania’s law only provides a qualified
reporter’s privilege. Therefore, the fifth factor is inapplicable.
¶26 The sixth factor considers “certainty, predictability and uniformity of result.”
Restatement (Second) § 6(2)(f). EHS argues that this factor favors Montana law since EHS
is headquartered in Montana and has reporters in multiple different states. It contends that
certainty, predictability, and uniformity of result would be furthered if EHS could know
for certain that Montana privilege law would apply to all subpoenas issued against it or its
17
reporters regardless of whether the subpoena was issued in relation to out-of-state conduct.
While we acknowledge that this approach would create certainty and predictability for
EHS, this approach fails to consider that the foreign litigant subpoenaing an EHS reporter
for information related to conduct that occurred in a foreign state would be required to
determine the domicile of EHS only to then realize that the information sought is privileged
by Montana law. Instead, certainty, predictability, and uniformity of result is furthered
when news organizations and reporters can expect that the privilege law of the state where
the reporting occurred governs. Litigants would also be more confident that the applicable
law is the privilege law of the state with the most nexus to the conduct involved in the
litigation. We conclude that the sixth factor favors Pennsylvania law.
¶27 The seventh and final factor considers “ease in the determination and application of
the law to be applied.” Restatement (Second) § 6(2)(g). “Ideally, choice-of-law rules
should be simple and easy to apply. This policy should not be overemphasized, since it is
obviously of greater importance that choice-of-law rules lead to desirable results. The
policy does, however, provide a goal for which to strive.” Restatement (Second) § 6 cmt. j.
In Goguen, we focused on the difficulty in determining and applying each state’s law.
Goguen, ¶ 31. Here, the seventh factor regarding “ease in the determination” of the law
favors Pennsylvania law because it is easier to identify which privilege law applies by
identifying where the reporting occurred. However, the application of Pennsylvania law is
more difficult than the application of Montana law because Montana’s privilege is absolute
while Pennsylvania’s law requires considering the three-part test under the qualified
reporter’s privilege. Consequently, we conclude that the seventh factor weighs equally.
18
¶28 The District Court found that the reporter is based out of Pennsylvania, the
communications she made that address the underlying Pennsylvania matter occurred in
Pennsylvania, the reporter’s work product and research was done in Pennsylvania, and the
communications being subpoenaed occurred in Pennsylvania. The District Court found
that Montana was far removed from the underlying substantive adjudication, and “[t]he
most significant relationship to the communication supports a conclusion that Pennsylvania
law must apply.” The District Court was correct in its findings of fact; however, in reaching
its conclusions of law, it misapplied the § 6 factors. Applying the § 6 factors, we conclude
that the District Court erred by holding that Montana law applies. Pennsylvania’s privilege
law applies to the subpoena.
¶29 The Restatement (Second) of Conflict of Laws also contains various sections that
provide rules specific to certain areas of the law. In the past, we have applied the specific
section related to torts, to conflict-of-laws questions. See Goguen, ¶¶ 32-38; Buckles,
¶¶ 18-21. Section 145(1) provides that “[t]he rights and liabilities of the parties with
respect to an issue in tort are determined by the local law of the state which, with respect
to that issue, has the most significant relationship to the occurrence and the parties under
the principles stated in § 6.” Restatement (Second) § 145(1) (emphasis added). In Goguen,
application of § 145 was appropriate because we dealt with an issue in tort—whether the
fair report privilege applied as a tort defense or as absolute immunity from tort liability.
See Goguen, ¶ 22. In Buckles, application of § 145 was appropriate because we considered
which state’s substantive law applied to a wrongful death claim. See Buckles, ¶ 1.
However, § 145 is not applicable here because we are not considering an issue in tort. As
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explained above, the issue is which state’s privilege law should apply to a subpoena—an
issue better characterized as a discovery dispute rather than an issue in tort. Thus, we need
not apply § 145 here.
¶30 Finally, EHS argues, and the District Court applied, § 139, which is the specific rule
in the Restatement (Second) that governs privileged communications. Importantly, we
have never adopted § 139 of the Restatement (Second) and find it unnecessary to do so
here because the application of the § 6 factors resolves the dispute. However, because the
District Court’s reasoning was premised upon § 139, we will briefly address it here.
Section 139 provides:
(1) Evidence that is not privileged under the local law of the state which has
the most significant relationship with the communication will be admitted,
even though it would be privileged under the local law of the forum, unless
the admission of such evidence would be contrary to the strong public policy
of the forum.
(2) Evidence that is privileged under the local law of the state which has the
most significant relationship with the communication but which is not
privileged under the local law of the forum will be admitted unless there is
some special reason why the forum policy favoring admission should not be
given effect.
Restatement (Second) § 139.
¶31 We need not decide under the Restatement or precedent which state would be
considered the “forum” when the underlying controversy is in one state, but domestication
of the subpoena is in another state requiring the application of a conflict-of-laws analysis.
If we conclude § 139 implies that the “forum” is the state of the underlying litigation, then
the “forum” would be Pennsylvania. We have already concluded that Pennsylvania is the
state with the most significant relationship to the communications. Since § 139 calls for
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situations where the “forum” and the state with the most significant relationship reach
different outcomes regarding whether the communications are privileged, if Pennsylvania
is both the “forum” and the state with the most significant relationship, then there is no
difference in outcome. Thus, if Pennsylvania is considered the “forum,” Pennsylvania law
is still favored.
¶32 If we conclude “forum” to mean Montana, the location of this present dispute, then
a situation exists where arguably we can apply § 139(1). The communications potentially
would not be considered privileged under the law of the state with the most significant
relationship, Pennsylvania, but would be privileged under the law of the “forum,” Montana.
Section 139(1) states that in such a case, the communications will be admitted, unless the
admission would be contrary to the strong public policy of Montana, the “forum.” As
discussed above, Montana does not have a strong public policy interest in having its
privilege law applied to reporting that occurred in Pennsylvania. Therefore, even if we
construe Montana as the “forum,” we are left with the same result that the application of
Pennsylvania’s privilege law is favored.
CONCLUSION
¶33 While we find no clear error in the District Court’s factual findings, the District
Court erred by determining that Montana’s Act applied to the subpoena. After considering
the § 6 factors, we conclude that Pennsylvania’s privilege law applies. On remand, the
District Court must apply the Pennsylvania Shield Law and the qualified reporter’s
privilege to the subpoena and determine whether all or some of the documents sought are
privileged under Pennsylvania law.
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¶34 Reversed and remanded.
/S/ LAURIE McKINNON
We Concur:
/S/ CORY J. SWANSON
/S/ JAMES JEREMIAH SHEA
/S/ BETH BAKER
/S/ KATHERINE M. BIDEGARAY
/S/ INGRID GUSTAFSON
/S/ JIM RICE
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