Journalist Shield Statute: In Camera Review May Precede Grand Forks Herald Balancing, But Criminal-Case Prerequisites Must Be Addressed

1. Introduction

In BEK Communications v. El-Dweek, 2026 ND 98, the North Dakota Supreme Court considered whether a district court may order in camera production of a news organization’s interview footage under North Dakota’s journalist shield statute, N.D.C.C. § 31-01-06.2, before applying the balancing test articulated in Grand Forks Herald v. District Court in and for Grand Forks County, 322 N.W.2d 850 (N.D. 1982).

The dispute arose in a high-profile criminal prosecution of Daniel Kevin Breijo (charged with murder and other felonies) after a December 2023 shooting in Minot that left one person dead and another, J.B., wounded. BEK Communications recorded approximately 290 minutes of interviews with J.B. over 2024–2025 and aired a series about the case; J.B. requested certain intimate and sensitive portions remain confidential.

After the district court rejected a proposed plea agreement, the State served a subpoena duces tecum seeking BEK’s material, including confidential portions. BEK moved to quash, invoking the shield statute. The district court did not rule on the motion to quash; instead, it ordered BEK to produce the footage for an in camera review, reasoning it could not determine whether nondisclosure would cause a “miscarriage of justice” without first reviewing the material. BEK petitioned for a supervisory writ to vacate the in camera order and to quash the subpoena.

2. Summary of the Opinion

Exercising supervisory jurisdiction, the Court denied the petition but announced two important guideposts:

  1. Shield-statute procedure: In cases implicating N.D.C.C. § 31-01-06.2, district courts have discretion to order an in camera review before applying the Grand Forks Herald balancing test and before making the statute’s “miscarriage of justice” finding, because no disclosure has yet occurred at the in camera stage.
  2. Criminal-case overlay: In criminal cases where a defendant seeks disclosure of privileged or confidential information, district courts should conduct the analysis required by Pennsylvania v. Ritchie, 480 U.S. 39 (1987), and its progeny before ordering an in camera review.

The Court additionally noted the district court’s handling of the motion to quash was procedurally incomplete; it should have addressed the motion to quash before ordering an in camera review, particularly given the criminal context.

Chief Justice McEvers concurred in the result, agreeing that Grand Forks Herald balancing need not precede in camera review, but concluding the district court abused its discretion by ordering in camera review without first completing required criminal-subpoena and criminal-discovery analysis, including under N.D.R.Crim.P. 17.

3. Analysis

3.1. Precedents Cited

  • Grand Forks Herald v. District Court in and for Grand Forks County, 322 N.W.2d 850 (N.D. 1982)
    • Role in this case: Supplied the established framework for when the shield statute yields—i.e., when nondisclosure would cause a “miscarriage of justice.” It sets out a multi-factor balancing approach, including public interest in free flow of information, confidentiality, necessity/criticality, exhaustion of alternatives, and frivolousness.
    • How BEK relied on it: BEK argued the district court was required to apply this balancing test before compelling any production, including for in camera review.
    • How the Court used it: The Court treated Grand Forks Herald as governing the step of ordering disclosure (and making the “miscarriage of justice” finding), but not as forbidding preliminary in camera review to inform that later decision.
  • Matter of Farber, 394 A.2d 330 (N.J. 1978)
    • Role in this case: Cited (via Grand Forks Herald footnote) for the proposition that in camera inspection can be a procedural tool that balances press interests against legitimate needs for evidence when the requesting party shows relevance/materiality, no less intrusive source, and legitimate need.
    • Influence: Supported the Court’s view that in camera review is compatible with protecting First Amendment and confidentiality concerns while allowing courts to verify claims.
  • State v. Knutson, 539 N.W.2d 254 (Minn. Ct. App. 1995)
    • Role in this case: Offered comparative authority that courts often employ in camera review as an “appropriate means” to strike the balance between First Amendment privilege and disclosure needs under similar shield statutes.
    • Influence: Reinforced the majority’s conclusion that in camera review is not inherently inconsistent with press protections.
  • Pennsylvania v. Ritchie, 480 U.S. 39 (1987)
    • Role in this case: Supplied a criminal-case constraint: before ordering in camera review of privileged/confidential materials sought for a defense purpose, the requesting party must make a “particularized showing.” The majority and concurrence both treated Ritchie as a mandatory analytic overlay in criminal proceedings.
    • Influence: Drove the Court’s directive that, in criminal cases, courts should not treat in camera review as automatic merely because shield-statute issues exist.
  • State v. Hummel, 483 N.W.2d 68 (Minn. 1992)
    • Role in this case: Elaborated the Ritchie prerequisites (basis for materiality; plausible showing the evidence is material and favorable/exculpatory), which North Dakota had previously adopted in its own case law.
    • Influence: Provided the content of the “certain prerequisites” the district court should consider in criminal cases.
  • State v. Spath, 1998 ND 133, 581 N.W.2d 123
    • Role in this case: A North Dakota anchor applying Ritchie/Hummel principles; emphasized that in camera review of confidential material in criminal cases is “not a right” but a discovery option available only after prerequisites are met.
    • Influence: Supported the Court’s statement that additional criminal-case analysis must be completed before proceeding with in camera review.
  • Haskell v. Grand Forks Pub. Sch. Dist., 2026 ND 40, 31 N.W.3d 626; Hagen v. North Dakota Ins. Rsrv. Fund, 2023 ND 132, 993 N.W.2d 519; St. Alexius Med. Ctr. v. Nesvig, 2022 ND 65, 971 N.W.3d 878; Schmitz v. North Dakota State Bd. of Chiropractic Exam'rs, 2022 ND 52, 971 N.W.2d 892; Reems on Behalf of Reems v. Hunke, 509 N.W.2d 45 (N.D. 1993)
    • Role in this case: These cases collectively stand for the broader proposition that trial courts have discretion in discovery to conduct in camera reviews of allegedly privileged/protected material.
    • Influence: Helped situate the shield-statute in camera review within familiar discovery practice and abuse-of-discretion review.
  • Manning v. Jaeger, 2021 ND 162, 964 N.W.2d 522
    • Role in this case: Reaffirmed standards for invoking the Court’s discretionary supervisory jurisdiction (important public interest, prevent injustice, or no adequate remedy).
  • Johnston Law Office, P.C. v. Brakke, 2018 ND 247, 919 N.W.2d 733; and in the concurrence State v. Groce, 2018 ND 46, 907 N.W.2d 761; State v. Glaum, 2024 ND 47, 4 N.W.3d 540
    • Role in this case: Set the abuse-of-discretion standards for subpoena quash decisions and define what constitutes an abuse (unreasonable, arbitrary, unconscionable, or misapplication of law).

3.2. Legal Reasoning

A. Supervisory writ posture and why the Court intervened

The Court accepted supervisory jurisdiction because the dispute implicated “substantial public interest” in press freedoms and confidentiality—indeed more acutely than in Grand Forks Herald—given the subpoena’s reach into intimate, sensitive, and requested-to-be-confidential material. Yet the Court denied relief because the district court’s order was limited to in camera review rather than public or party disclosure.

B. The key procedural distinction: production for in camera review vs. disclosure to litigants

The majority’s central move is to separate (1) compelled production to the court for confidential inspection from (2) compelled disclosure to a party. Under N.D.C.C. § 31-01-06.2, the statutory trigger is whether “failure of disclosure” would cause a “miscarriage of justice.” The Court reasoned that in camera inspection is a mechanism to help determine whether disclosure is warranted; it is not itself the disclosure the statute is chiefly concerned with.

Because the district court had not yet (a) made the “miscarriage of justice” finding, (b) applied Grand Forks Herald balancing to order disclosure, or (c) ordered any release to the State or defense, the Supreme Court held it was not an abuse of discretion to proceed with in camera review first.

C. How Grand Forks Herald fits after this decision

The decision does not dilute Grand Forks Herald’s substantive protection. Instead, it clarifies sequencing: the balancing test is required before a court finds a miscarriage of justice and/or orders disclosure of shielded information—not necessarily before the court looks at the material privately.

D. The criminal-case overlay the district court must not skip

The majority emphasized that this is a criminal matter in which both the State and the defendant seek access to potentially protected material. In that context, North Dakota precedent (notably State v. Spath) requires the Ritchie line of analysis: a defendant must make a “particularized”/plausible showing that the confidential materials contain evidence that is material and favorable (i.e., potentially exculpatory), before the court orders in camera review.

The Court therefore signaled that the district court’s work was incomplete: it should complete the additional criminal-case analysis before conducting the in camera review it ordered.

E. The motion to quash and procedural completeness

The Court characterized BEK’s request to quash as “premature” because the district court had not granted or denied the motion. But it still identified error in sequencing: the district court “should have addressed the motion to quash before ordering an in camera review,” especially given the distinct standards for criminal subpoenas and the heightened protection for privileged/confidential information in criminal discovery.

The concurrence sharpened this point, grounding the required analysis in N.D.R.Crim.P. 17 and warning that ordering in camera review without applying Rule 17 and the criminal-case limitations constitutes a misapplication of law (and thus an abuse of discretion), even if ultimate relief (quashing) is not granted on supervisory review.

3.3. Impact

  • Clarified sequencing under the shield statute: Trial courts in North Dakota may now treat in camera inspection as an available first-step tool to assess whether the “miscarriage of justice” standard could ever be satisfied, rather than being forced to decide the merits of disclosure abstractly.
  • Reinforced that disclosure remains guarded: The decision preserves the requirement that Grand Forks Herald balancing occurs before any disclosure to litigants, leaving robust protection at the moment it matters most.
  • Introduced a two-track framework in criminal cases: When shield-law issues arise in criminal proceedings, courts must integrate: (a) shield-statute considerations; (b) Ritchie/Spath prerequisites for in camera review; and, as emphasized by the concurrence, (c) the subpoena standards of N.D.R.Crim.P. 17. This raises the analytic burden on parties seeking journalists’ materials in criminal cases and should reduce routine or speculative subpoenas.
  • Practical effect for news organizations: News entities may still be compelled to submit materials to the court privately, but the ruling provides arguments to cabin the process (e.g., require threshold criminal-case showings; narrow scope; protect confidentiality; staged review; sealing orders).
  • Doctrinal tension flagged by the concurrence: Although the majority denies relief, it effectively “supervises” by directing additional analysis. Future litigants may cite the concurrence to argue that ordering in camera review without Rule 17 and criminal prerequisites is reversible error.

4. Complex Concepts Simplified

Supervisory writ
An extraordinary form of Supreme Court oversight used sparingly to correct serious errors or address issues of major public importance when ordinary appeals may be inadequate or untimely.
Journalist shield statute (N.D.C.C. § 31-01-06.2)
A law protecting people engaged in gathering news from being forced to disclose information obtained in newsgathering, unless a court finds nondisclosure would cause a “miscarriage of justice.”
Miscarriage of justice
A high threshold indicating that without the evidence, the legal process would be fundamentally unfair or would likely reach an unjust result. Under Grand Forks Herald, courts assess multiple factors before finding this standard satisfied.
Grand Forks Herald balancing test
A factor-based framework to decide whether shielded information must be disclosed. Key factors include the public interest in press freedom, confidentiality, necessity/criticality, exhaustion of alternatives, and whether the claim/defense is frivolous.
In camera review
A private inspection by the judge (not the parties) to determine what, if anything, may lawfully be disclosed. It is often used to protect confidentiality while still letting the court evaluate relevance and necessity.
Subpoena duces tecum
A subpoena requiring production of documents, recordings, or objects rather than (or in addition to) testimony.
Particularized / plausible showing (Ritchie)
In criminal cases, before a judge will even privately review certain confidential materials, the requesting party must do more than speculate—it must point to reasons to believe the materials contain evidence that is material and favorable to the defense (often meaning exculpatory).

5. Conclusion

BEK Communications v. El-Dweek, 2026 ND 98, establishes a sequencing rule with practical bite: North Dakota courts may compel journalists to submit materials for in camera inspection before applying the Grand Forks Herald balancing test and before deciding whether nondisclosure would cause a statutory “miscarriage of justice,” so long as no disclosure to litigants is ordered yet.

At the same time, the decision underscores that criminal cases require added protections: when the defense seeks privileged or confidential information, courts should apply Pennsylvania v. Ritchie and related North Dakota precedent (notably State v. Spath) before proceeding with in camera review. The concurrence further emphasizes that N.D.R.Crim.P. 17 must be addressed in the subpoena analysis.

The broader significance is a calibrated approach: courts may use in camera review as a gatekeeping tool to avoid uninformed disclosure rulings, but they must still rigorously justify any intrusion into journalistic confidentiality—especially in criminal discovery where subpoenas can otherwise become vehicles for fishing expeditions.