Privilege Follows the Reporting: Montana High Court Holds Place of Newsgathering Governs Media-Subpoena Privileges

Introduction

In EQT CHAP LLC v. Environmental Health Sciences, 2025 MT 237, the Montana Supreme Court addressed a recurring problem in modern, multi-state journalism: when a news organization headquartered in one state gathers news in another, which state’s reporter-privilege law governs a subpoena for the newsroom’s materials?

The dispute arose from Environmental Health Sciences’ (EHS) “Fractured” series—reporting about alleged fracking pollution affecting a Pennsylvania family. EQT, a company connected to the fracking operations, sought EHS’s sampling data, communications, and related materials through a subpoena issued in a Pennsylvania proceeding and domesticated in Montana, where EHS is headquartered. The Gallatin County District Court applied Montana’s Media Confidentiality Act and quashed the subpoena entirely. On appeal, the Montana Supreme Court reversed, holding that Pennsylvania’s privilege law governs because Pennsylvania has the most significant relationship to the communications and newsgathering at issue. The Court remanded for application of Pennsylvania’s Shield Law and its qualified reporter’s privilege.

The opinion establishes a clear choice-of-law principle in Montana for media-subpoena disputes: when an actual conflict exists between privilege laws, the law of the state with the most significant relationship to the communications—typically the place where the newsgathering occurred—controls. Headquarters or domicile of the media outlet is not dispositive.

Summary of the Opinion

• The Court identified an actual conflict between Montana’s Media Confidentiality Act (absolute privilege protecting “any information” gathered in newsgathering) and Pennsylvania’s narrower protections (an absolute Shield Law protecting only confidential human sources, plus a qualified First Amendment reporter’s privilege recognized under Pennsylvania law).
• Applying Restatement (Second) of Conflict of Laws § 6 factors, the Court held Pennsylvania has the most significant relationship to the subpoenaed communications because the reporting, sampling, and communications all occurred in Pennsylvania.
• The Court emphasized that the situs of the conduct (the place of newsgathering) is paramount, echoing its approach in Goguen v. NYP Holdings, Inc., 2024 MT 47, where it similarly centered the analysis on the location of the relevant conduct.
• The Court declined to apply Restatement § 145 (torts) because the issue was a discovery/privilege dispute, not a tort issue.
• The Court did not adopt Restatement § 139 (privileged communications); even assuming its applicability, the result would still favor Pennsylvania law on these facts.
• Holding: The district court erred in applying Montana’s Act. Pennsylvania privilege law governs. The case was reversed and remanded for the district court to apply Pennsylvania’s Shield Law and qualified reporter’s privilege to determine what, if anything, must be produced.

Analysis

Precedents Cited and Their Influence

• Goguen v. NYP Holdings, Inc., 2024 MT 47: The Court’s framework in Goguen guided the methodology here—first testing for an actual conflict, then applying Restatement § 6 to the discrete privilege issue (as distinct from the underlying merits). Goguen placed heavy weight on the location of the relevant conduct, concluding New York had the stronger interest in defining privileges for conduct occurring within its borders. The Court reiterated that “the conduct nonetheless took place” in the other state, and that state’s interest is “paramount.” This case extends Goguen’s logic from a defamation/fair-report context to media-subpoena privileges.
• Buckles v. BH Flowtest, Inc., 2020 MT 291; Phillips v. GMC, 2000 MT 55; Mowrer v. Eddie, 1999 MT 73: These cases ground Montana’s general conflicts methodology. Buckles and Phillips emphasize § 6’s factor-driven, fact-intensive approach. Mowrer clarifies how “false conflict” is identified—when differing laws would produce the same result—underscoring the Court’s threshold requirement that an “actual conflict” must exist before moving to § 6.
• Restatement (Second) of Conflict of Laws § 6: The core analytical tool here. The Court marched through each factor—needs of the interstate system, forum policies, other states’ policies, justified expectations, basic policies in the field, certainty/predictability/uniformity, and ease of determination/application—concluding that most factors favor applying Pennsylvania privilege law.
• Restatement (Second) § 145: Applied in tort choice-of-law settings (e.g., Goguen and Buckles), but the Court declined to apply it here because the issue is a discovery privilege, not tort liability or defenses.
• Restatement (Second) § 139: Addresses privileged communications. Montana has never adopted § 139, and the Court found it unnecessary to do so. Nonetheless, the opinion explained that even under § 139, Pennsylvania law would control on these facts, regardless of whether “forum” means the underlying Pennsylvania litigation or the Montana domestication proceeding.
• Pennsylvania media-privilege jurisprudence:
  • Bowden (Commonwealth v. Bowden, 838 A.2d 740 (Pa. 2003)): Explains the Pennsylvania Shield Law protects the identity of confidential human sources absolutely and can extend to documents only insofar as their production would reveal those sources. Bowden also recognizes, via Third Circuit authority, a qualified First Amendment reporter’s privilege that can protect non-source materials subject to a three-part test.
  • Hatchard v. Westinghouse Broadcasting Co., 532 A.2d 346 (Pa. 1987): Articulates the Shield Law’s core purpose of preserving the free flow of information to the press by protecting confidential sources; non-source materials are not categorically protected absent source-identification concerns.
  • McMenamin v. Tartaglione, 590 A.2d 802 (Pa. Commw. Ct. 1991), aff’d 590 A.2d 753 (Pa. 1991): Recognizes application of the qualified reporter’s privilege for non-confidential contexts where the Shield Law does not apply.
  • Third Circuit authorities—Riley v. City of Chester, 612 F.2d 708 (3d Cir. 1979); United States v. Cuthbertson, 630 F.2d 139 (3d Cir. 1980); United States v. Criden, 633 F.2d 346 (3d Cir. 1980): Underpin Pennsylvania’s adoption of a qualified reporter’s privilege and its flexible, need-based analysis.
• Montana authorities:
  • Montana’s Media Confidentiality Act, § 26-1-902(1), MCA: Provides an absolute privilege for “any information” obtained or prepared in newsgathering, including sources and non-source materials, without qualification.
  • Sible v. Lee Enterprises, 224 Mont. 163, 729 P.2d 1271 (1986) (Hunt, J., concurring): Describes the Act’s purpose—to encourage a free and dynamic press by shielding journalists from compelled disclosure of sources and confidential information.
• Wilkow v. Forbes, Inc., 2000 U.S. Dist. LEXIS 6587 (N.D. Ill. May 12, 2000): Quoted in Goguen and this case for the proposition that the state where the conduct occurred has a paramount interest in setting the scope of privileges applicable to that conduct.
• Talbot v. WMK-Davis, LLC, 2016 MT 247: Cited for the principle that a Restatement analysis is necessarily driven by the unique facts and issues implicated in the particular case.

Legal Reasoning: Why Pennsylvania’s Privileges Govern

1) An actual conflict exists

Montana’s Act absolutely protects all newsgathering information from disclosure. Pennsylvania’s scheme is narrower: its Shield Law absolutely protects only the identities of confidential human sources, and Pennsylvania also recognizes a qualified reporter’s privilege—requiring a case-specific showing of need—to protect other journalistic materials. Because these two frameworks can yield different outcomes, a true (not “false”) conflict exists, requiring a full choice-of-law analysis.

2) Defining the issue precisely

Echoing Goguen, the Court framed the issue narrowly: which state’s reporter-privilege law applies to a subpoena served on a Montana-headquartered outlet where the subpoenaed materials arise from reporting that occurred in Pennsylvania? The focus is on the privilege question as a discovery issue, distinct from the underlying merits of the Pennsylvania litigation.

3) Applying Restatement § 6 factors

• (a) Needs of the interstate system: Harmonious interstate relations are best served by applying the privilege law of the state most connected to the communications. Here, Pennsylvania has the most significant relationship: the newsgathering and communications occurred there, the underlying litigation is there, the litigants and property are there. This factor favors Pennsylvania.
• (b) Policy of the forum (Montana) and (c) policy of other interested states (Pennsylvania):
  • Montana’s policy is to broadly shield all newsgathering information.
  • Pennsylvania’s policy protects confidential human sources absolutely but generally favors access to non-source materials absent the qualified privilege’s protections.
  • The district court erred by treating “stronger” protection as determinative, rather than tying the analysis to where the conduct occurred and which state’s policies are most implicated by that conduct. Given Pennsylvania’s centrality to the reporting and litigation, these factors favor Pennsylvania.
• (d) Protection of justified expectations: EQT reasonably expected Pennsylvania privilege law to apply in a Pennsylvania dispute concerning Pennsylvanians and Pennsylvania property. EHS’s expectation that Montana law would govern, based solely on headquarters, is less justified in light of out-of-state newsgathering. This factor favors Pennsylvania.
• (e) Basic policies underlying the field of law: As in Goguen, this factor is inapplicable where inter-state differences are major. Montana’s privilege is absolute; Pennsylvania’s is qualified outside the confidential-source context.
• (f) Certainty, predictability, uniformity: Uniformity is better served by a clear rule that the privilege law of the state where the reporting occurred governs, rather than keying the analysis to the media entity’s headquarters. This factor favors Pennsylvania.
• (g) Ease of determination and application: Identifying the place of newsgathering makes choice-of-law easier. While applying Pennsylvania’s qualified privilege may be more complex than applying Montana’s absolute privilege, the factor splits and does not overcome the other factors supporting Pennsylvania law.

4) Situs of conduct controls; headquarters is not controlling

The Court relied on Goguen’s conduct-centric lens: the place where the communications and newsgathering occurred is paramount. EHS’s Montana headquarters does not trump Pennsylvania’s interest in regulating the reporting that took place within Pennsylvania’s borders. Allowing media entities to “hide behind” headquarters-based privileges would undercut the affected state’s policy choices and encourage forum shopping.

5) Restatement § 145 inapplicable; the issue is discovery, not tort

The Court declined to apply § 145 (torts) because the question is a discovery privilege dispute, not a tort claim or defense.

6) Restatement § 139 not adopted; result same either way

Montana has never adopted § 139 (privileged communications) and did not do so here. Even if § 139 were applied, the Court explained, the outcome still points to Pennsylvania law, whether “forum” is construed as Pennsylvania (the underlying action) or Montana (the domestication proceeding). Montana’s policy, though strong in the abstract, is not so strong as to require shielding out-of-state newsgathering from state-specific privilege rules where that reporting occurred.

Impact

• For Montana-based news organizations: You cannot assume Montana’s absolute Media Confidentiality Act will govern subpoenas for reporting done elsewhere. When reporting occurs in another state, expect that state’s reporter-privilege law to apply if an actual conflict exists.
• For journalists operating remotely: The place where you gather information, conduct interviews, take samples, or otherwise communicate for story development can determine the privilege rules that apply to your materials.
• For litigants seeking media discovery: When the reporting is tied to your state, you may obtain discovery under your state’s qualified reporter-privilege standards, even if the newsroom is headquartered in another state with broader protections.
• On forum shopping and predictability: The decision discourages privilege-shopping based on media headquarters and promotes a predictable, conduct-based rule anchored in the place of newsgathering.
• On future Montana conflicts cases involving media privileges: The Court extended Goguen’s conduct-location emphasis to the privileges context and signaled that § 6—not § 145—governs discovery-privilege choice of law. While § 139 remains unadopted in Montana, the opinion shows how, even if considered, it would not displace a conduct-centered outcome on these facts.
• Practical consequences of Pennsylvania law on remand:
  • Materials that would reveal confidential human sources remain absolutely protected by the Pennsylvania Shield Law.
  • Other materials are subject to Pennsylvania’s qualified reporter’s privilege. EQT must make a fact-specific showing (efforts to obtain elsewhere, necessity through the journalist, and cruciality to the claim), subject to a flexible application recognizing that privileges are generally disfavored.
  • The district court may order partial production, redaction, or deny discovery, depending on whether the showing is met and whether source confidentiality would be compromised.

Complex Concepts Simplified

Actual conflict vs. false conflict

• Actual conflict: Choosing State A’s or State B’s law could change the outcome.
• False conflict: The laws are substantially the same or would produce the same result, so no further analysis is needed and the forum’s law typically applies.

Domestication of a subpoena

When a subpoena is issued in one state but the target is in another, the subpoena is often “domesticated” in the target’s state so it can be enforced there. Here, a Pennsylvania subpoena was domesticated in Montana to reach EHS in Bozeman.

Shield Law vs. qualified reporter’s privilege

• Shield Law (Pennsylvania): Absolute protection for the identity of confidential human sources; may extend to documents only if production would reveal those sources.
• Qualified reporter’s privilege (Pennsylvania): For non-source materials, courts apply a flexible, case-specific three-part test to decide if disclosure is warranted.
• Montana’s Act: Absolute protection for all newsgathering information (both sources and materials), without a qualified-privilege exception.

Restatement (Second) § 6: The seven factors

Courts weigh these when deciding which state’s law applies:

1. Needs of the interstate and international systems
2. Policies of the forum state
3. Policies and interests of other concerned states
4. Protection of justified expectations
5. Basic policies underlying the legal field (inapplicable here due to major differences)
6. Certainty, predictability, and uniformity
7. Ease in determining and applying the chosen law

“Most significant relationship” in practice

The place where the relevant conduct occurred—here, the newsgathering and communications—usually carries the greatest weight. That state has the strongest interest in defining privileges for activities within its borders.

Additional Observations and Practice Pointers

• Define the precise issue early: As in Goguen and now EQT v. EHS, separating the privilege issue from the merits can avoid analytical drift and sharpen the § 6 inquiry.
• Develop the factual record on “place of reporting”: For multi-jurisdictional stories, courts may look to where interviews occurred, where samples were collected, where communications were made, and where editorial decisions were implemented.
• For media outlets: Maintain clear internal records differentiating confidential-source information from general newsgathering materials; document the locations of key reporting activities; anticipate that out-of-state privilege law may govern if reporting is conducted elsewhere.
• For subpoenaing parties: If invoking Pennsylvania’s qualified privilege, prepare to show:
  • diligent efforts to obtain the information elsewhere;
  • that the journalist is the only viable pathway to the information; and
  • that the information is crucial to the claim.
• Open questions: The Court did not decide how to handle mixed-location reporting when communications are spread across multiple states. Future cases may require a more granular or dominant-contacts analysis.

Conclusion

EQT CHAP LLC v. Environmental Health Sciences cements a conduct-centered conflicts rule for media-subpoena privileges in Montana: when an actual conflict exists, the privilege law of the state with the most significant relationship to the communications—typically the place of newsgathering—governs. The Court’s reasoning adheres to and extends its approach in Goguen, declining to rely on the media outlet’s headquarters as the determinative anchor and rejecting a blunt “strongest privilege wins” approach. By centering the analysis on where the reporting occurred, the decision promotes predictability, discourages forum shopping, and respects the policy choices of the state where journalistic activity takes place.

On remand, the district court must apply Pennsylvania’s Shield Law and its qualified reporter’s privilege to determine what materials, if any, are discoverable. The decision has significant implications for cross-border journalism, remote newsgathering, and litigants navigating interstate discovery: in Montana courts, privilege follows the reporting.