Nevada top court says search protocol in Jeff German case violates privilege
The Nevada Supreme Court ruled on Oct. 5, 2023, that a district court’s search procedure for the devices belonging to slain Las Vegas Review-Journal reporter Jeff German violated reporter’s privilege.
District Judge Michelle Leavitt put a search protocol in place in May that would have allowed two Las Vegas Metropolitan Police Department detectives and two Clark County prosecutors on the case to search the devices, the Review-Journal reported. The parties would have been bound by a protective order preventing the disclosure of any privileged information, and the Review-Journal would have had the opportunity to assert privilege on any of the journalistic work product found.
But the Review-Journal had argued instead for the appointment of a special master to review the data contained on the devices first, to determine what should be disclosed to police and the defense in German’s murder trial. During a May 24 hearing, all parties agreed that officers would be barred from searching the devices until the state Supreme Court could hear the case again, according to the Review-Journal.
The Nevada Supreme Court ultimately ruled in favor of the Review-Journal, reinstating a preliminary injunction barring the search of the devices until the lower court entered a search protocol that more closely resembled that proposed by the newspaper.
“Although the [reporter’s] privilege is not absolute, the search protocol entered by the district court constitutes an abuse of discretion because it allows that privilege to be violated before the court has the opportunity to weigh the privilege against any assertion of countervailing constitutional rights,” the ruling said.
The new search protocol will appoint two special masters — a retired judge and the general counsel for the police union — to search the devices, with the same procedures for resolving privilege disputes.
Ashley Kissinger, an attorney representing the Review-Journal, told the Tracker via email that the justices “recognized the obvious point that allowing police and prosecutors to review confidential press materials destroys the confidentiality, and neutral special masters must conduct any search in a situation like this.”
She also emphasized the other key aspect of the ruling: that the reporter’s privilege does not end with a journalist’s death.
“This is a very important win for the press in Nevada and nationwide,” Kissinger wrote. “The Nevada Supreme Court rightly rejected the argument that when a reporter dies, the right to maintain the confidentiality of sources and ongoing news investigations dies with them.”
Judge denies sanctions against the Las Vegas police for search slain reporter’s phone
In a Jan. 25, 2023, hearing on the search of devices seized from the home of slain Las Vegas Review-Journal reporter Jeff German, a Nevada district judge rejected the outlet’s request for sanctions against the city’s police department.
The newspaper filed the motion in December 2022 for sanctions after learning that the Las Vegas Metropolitan Police Department had already searched the cellphone of German, contrary to the department’s assertions.
District Judge Michelle Leavitt denied the motion for sanctions against the LVMPD, citing concerns that it could adversely impact the murder investigation.
LVMPD had seized German’s devices as part of its investigation. In October, a district judge granted the Review-Journal’s request for a preliminary injunction barring the search of those devices. An appeal is currently being considered by the Nevada Supreme Court.
Leavitt indicated during the January 2023 hearing that she would lift the injunction if given the opportunity. A previous version of this update incorrectly reported that she had issued such an order.
Review-Journal attorney Ashley Kissinger told the U.S. Press Freedom Tracker that Leavitt actually issued an “indicative ruling,” outlining how she would rule if the state Supreme Court remanded, or returned, the issue to the lower court. Leavitt indicated she would not appoint a special master to review the data contained on the devices, as the Review-Journal has requested. Instead, she would replace the injunction with a protective order preventing the disclosure of any privileged information.
Leavitt also denied a separate motion from the Review-Journal requesting officers refrain from searching data from German’s car, stating that the leased vehicle had already been returned to the car dealer.
Editor’s Note: A previous version of this article incorrectly stated that Judge Michelle Leavitt lifted the preliminary injunction barring the search of devices seized from Jeff German’s home. The injunction remains in place as an appeal is pending before the Nevada Supreme Court.
Review-Journal files for sanctions after learning that police searched journalist’s phone
After learning that Las Vegas Metropolitan Police Department officers searched the cellphone of its reporter Jeff German as part of the investigation into his murder, the Las Vegas Review-Journal filed a motion for sanctions against the department on Dec. 16, 2022.
LVMPD officers seized an iPhone, three iMacs, a Macbook and an external hard drive from German’s home following his death in early September. On Sept. 26, the Review-Journal filed a motion for a protective order, arguing that German’s death should not erase his protections under the state’s shield law and that authorities should be barred from searching the devices seized from his home.
In October, a court sided with the news outlet, granting the injunction. LVMPD appealed, and the case is currently on hold with the Nevada Supreme Court while a lower court rules on the newspaper’s motion to bar the search of data contained in German’s car, also seized by police.
After successfully fighting for the release of all search warrants in the case in November, the newspaper reported that one of the warrants stated that officers identified Robert Telles as a person of interest in part through data obtained from German’s phone. Telles is in prison awaiting trial in April 2023 on murder charges.
According to the Review-Journal, LVMPD did not confirm that the phone had been searched until Dec. 1. The newspaper filed a motion for sanctions on Dec. 16, arguing that officials had falsely indicated that none of the devices had been searched before the Review-Journal filed for a protective order.
“Our motion is strong because it seeks sanctions against the police and the state for conduct that is plainly worthy of sanctions: misleading the parties and the court,” Review-Journal attorney Ashley Kissinger said in an emailed statement. “We are hopeful the court will grant it.”
The motion asks that the department be ordered to pay the Review-Journal’s attorneys fees, and to disclose the details of the search of German’s phone and whether any of the other devices have been searched.
The newspaper asks that if sanctions are denied, that the court grant its request for someone from outside of Las Vegas state and federal judicial systems to review the information on the devices and determine what information could be turned over to law enforcement.
“Confidential sources are critical to journalism in the public interest,” Review-Journal Executive Editor Glenn Cook said. “It would be a travesty if Jeff German’s murder resulted in authorities learning the identities of his sources. It could literally cost them their careers. A reporter’s murder shouldn’t end the reporter’s shield law and First Amendment protections.”
A hearing on the motion for sanctions is scheduled for Jan. 25, 2023.
Editor’s Note: This article has been updated to include comments from Ashley Kissinger, an attorney representing the newspaper, and Review-Journal Executive Editor Glenn Cook.
Judges side with Review-Journal in series of rulings on seizure of slain reporter’s devices
In a series of decisions in mid-November, judges in Nevada sided with the Las Vegas Review-Journal as the newspaper fought the seizure and search of devices belonging to slain investigative reporter Jeff German.
In September, authorities seized a phone, laptop, hard drive and three computers from the home of German, who was found stabbed to death on Sept. 2. The Review-Journal immediately filed requests to bar authorities from searching the devices, arguing they were protected under reporter’s privilege. District Judge Susan Johnson granted that request on Oct. 11.
The Las Vegas Metropolitan Police Department filed an appeal of the preliminary injunction with the state supreme court a week later.
On Oct. 19, the newspaper filed a motion for an emergency temporary restraining order to prevent the search of German’s car in case it stored electronic data related to his reporting. Johnson ultimately denied the newspaper’s motion, stating that she did not have jurisdiction given Metro’s pending appeal, the Review-Journal reported.
On Nov. 14, the Supreme Court temporarily granted the newspaper’s motion for an injunction barring the search of German’s electronic devices, but has yet to fully rule on Metro’s appeal. The court also determined that Johnson does have jurisdiction to rule on the motion for an emergency order regarding the car search; Johnson has yet to issue her decision.
The following day, District Judge Michelle Leavitt granted the Review-Journal’s motion for the release of all search warrants executed as part of the police investigation into German’s murder. While a justice of the peace had ordered the release of the search warrants during a hearing in October, the only warrant provided to the outlet was heavily redacted and did not pertain to the searches at German’s home.
According to the Review-Journal, Chief Deputy District Attorney Pamela Weckerly said during the Nov. 15 hearing that she believes at least four search warrants were executed. Leavitt ordered not only that all warrants be released, but that police include a copy of the first search warrant with fewer redactions.
Injunction to be heard by Nevada Supreme Court following police department appeal
The Las Vegas Metropolitan Police Department appealed the court’s decision to grant a preliminary injunction barring the search of devices seized from the home of slain journalist Jeff German.
The Las Vegas Review-Journal reported that the LVMPD filed an appeal with the Nevada Supreme Court on Oct. 19, 2022. During the hearing that same day, District Judge Susan Johnson said that she would stop hearings in her court until the state Supreme Court returns its ruling. The preliminary injunction will remain in place until the decision is handed down.
The Review-Journal reported it also filed a motion that day for an emergency temporary restraining order that would prevent law enforcement from searching through German’s car in the case it stored electronic data related to his newsgathering.
Judge grants injunction barring searching slain reporter’s devices until agreement reached
A Nevada district judge granted the Las Vegas Review-Journal a preliminary injunction on Oct. 11, 2022, barring authorities from searching the personal electronic devices of slain reporter Jeff German.
The Review-Journal reported that during the hearing Judge Susan Johnson said the temporary restraining order granted by a different judge the week before was too broad, and ordered the Las Vegas police to specify what devices were seized from German’s home.
According to the Associated Press, the injunction will last until all parties reach an agreement on how the records will be reviewed.
“This is a preliminary injunction — I’m envisioning that we’re all going to be dealing with this quite a bit,” Johnson said. “We all want to get it right.”
Johnson said she was inclined toward allowing two “trusted Metro officers that are higher-ups” to search the devices under the supervision of a judge from the Reno area, according to the AP. The Review-Journal has staunchly opposed allowing anyone from the police department, district attorney’s office or public defender’s office to participate in the review.
“Allowing Metro officers to review materials that include confidential sources within the department could have devastating consequences for those confidential sources, for the Review-Journal and for freedom of the press,” said Ben Lipman, the newspaper’s chief legal officer, in a statement to the outlet. “But, we remain hopeful the other parties and the court will agree to an acceptable compromise so the Review-Journal is not forced to stand by its absolute privilege.”
A hearing is scheduled for Oct. 19.
Judge grants Review-Journal emergency protective order against searching slain reporter’s devices
A Nevada district judge granted the Las Vegas Review-Journal a temporary restraining order that immediately bars authorities from searching the personal electronic devices of slain reporter Jeff German.
The Review-Journal reported it had filed a request for an emergency order on Oct. 4, 2022, after officials said they sought to search the devices that same day if an agreement was not reached.
Glenn Cook, the Executive Editor for the Review-Journal, said the request was made to protect German’s confidential sources and the information they had provided.
Judge Nadia Krall, who signed the order the following day, prevented officials from searching the devices for the next 15 days. A hearing has been scheduled for Oct. 12.
In a statement to the Review-Journal, Cook said exposing the reporter’s sources could potentially lead to retribution for them as well as damage the outlet’s ability to report.
“We’re grateful that Judge Krall saw the urgency of the situation and the clear threat of irreparable harm to the Review-Journal and Jeff German’s sources,” Cook said.
The Las Vegas Review-Journal filed a motion for a protective order on Sept. 26, 2022, arguing that authorities should be barred from searching the electronic devices seized as part of the investigation into the murder of reporter Jeff German.
German, who had covered crime and political corruption in Las Vegas for more than 40 years, was stabbed outside his home on Sept. 2. Clark County Public Administrator Robert Telles was arrested on suspicion of murder less than a week later and is being held without bail awaiting trial.
According to court filings reviewed by the U.S. Press Freedom Tracker, both Clark County Sheriff Joe Lombardo and Clark County District Attorney Steve Wolfson contacted the Review-Journal, alerting the newspaper to the seizure of German’s devices and requesting a waiver to allow authorities to search them.
The Clark County District Attorney’s Office did not respond to an emailed request for comment.
In total, officers seized an iPhone, three iMacs, a Macbook and an external hard drive from German’s home, according to the motion. The Las Vegas Metropolitan Police Department told the newspaper in writing on Sept. 16 that the devices had not been searched and would not be until the court issued an order authorizing the review.
Ashley Kissinger, an attorney representing the newspaper, sent a letter to the Metro Police Department, the Clark County public defender representing Telles and the District Attorney’s Office on Sept. 21 listing their concerns and requesting a call to further discuss the issue. Kissinger sent a follow up letter two days later proposing a resolution before resorting to filing a motion for a protective order.
When reached for comment, Review-Journal Executive Editor Glenn Cook provided a copy of the motion and declined to comment further.
The letters and the motion filed on the Review-Journal’s behalf on Sept. 26 argue that German’s contacts, communications and work product are protected from seizure and review under Nevada’s shield law and the federal Privacy Protection Act.
“The Review-Journal appreciates the efforts of law enforcement to investigate the murder of Mr. German, and of all those seeking to ensure that justice is done for this horrific crime,” the motion states. “However, the newspaper has serious and urgent concerns about the protection of confidential sources and other unpublished journalistic work product contained in the Seized Devices.”
The motion further requests that the court allow the Review-Journal to review the devices, identify the newsgathering materials contained on them and determine whether it wishes to waive its privilege concerning any of the files.
The Committee to Protect Journalists, a founding partner of the Tracker, expressed its support for the newspaper.
“A murder investigation should not be used as a pretext to access unreported source material that should be protected by both the First Amendment and Nevada’s shield law,” CPJ U.S. and Canada Program Coordinator Katherine Jacobsen said in a statement. “If law enforcement were to gain access to decades of Jeff German’s unpublished work, including sensitive source material, it would make an already difficult situation even worse.”
According to the court filing, a hearing on the motion is scheduled for Sept. 28.