BEK Communications v. El-Dweek 2026 ND 98

IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2026 ND 98

BEK Communications, Petitioner v.

The Honorable Daniel S. El-Dweek, Judge of the District Court, North Central Judicial District, the State of North Dakota and Daniel Kevin Breijo, Respondents No. 20260055

Petition for Supervisory Writ.

PETITION FOR SUPERVISORY WRIT DENIED.

Opinion of the Court by Jensen, Justice, in which Justice Bahr, District Judge Lofgren, and Surrogate Judge Romanick joined. Chief Justice McEvers filed an opinion concurring in the result.

Robin W. Forward (argued) and Haley K. Finch (appeared), Bismarck, ND, for petitioner.

Amanda R. Engelstad, Assistant State's Attorney, Dickinson, ND, for respondent The Honorable Daniel S. El-Dweek, Judge of the District Court, North Central Judicial District, and the State of North Dakota.

Jesse Walstad, Bismarck, ND, for respondent Daniel Kevin Breijo.

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BEK Communications v. El-Dweek No. 20260055

Jensen, Justice.

[¶1] BEK Communications petitions the Court for a supervisory writ to vacate a district court order that required BEK to produce 290 minutes of interview footage of a witness/victim of a crime being prosecuted by the State, for an in camera review. BEK argues the district court abused its discretion when it failed to apply the balancing test of Grand Forks Herald v. District Court in and for Grand Forks County, 322 N.W.2d 850 (N.D. 1982), before ordering the in camera review. BEK also argues the district court abused its discretion by not quashing the State's subpoena duces tecum requesting production of the interview footage. Exercising our supervisory jurisdiction, we deny the petition.

I

[¶2] On December 24, 2023, the Minot Police Department responded to a call about a shooting in an apartment complex in Minot. Inside an apartment at the complex, officers discovered a dead male and a wounded female, J.B. The suspected assailant, Daniel Breijo, was also found in the apartment and subsequently charged with murder and other felonies.

[¶3] BEK is an organization engaged in publishing and broadcasting news. BEK conducted a series of recorded interviews of J.B. between December 2024 and September 2025 that resulted in approximately 290 minutes of footage. BEK used the interviews and recordings to air a series of television and internet episodes about Breijo's criminal investigation and prosecution. J.B. asked that some portions of her interviews not be aired and that some information she provided be kept confidential due to its intimate and sensitive nature. [¶4] In August 2025, Breijo and the State entered into a plea agreement. J.B. opposed the plea agreement. At a hearing in September 2025, the district court rejected the plea agreement.

[¶5] About a month after the district court rejected the plea agreement, the State served BEK with a subpoena duces tecum for production of all of BEK's material

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related to J.B., including the video recordings that contained information J.B. had asked BEK to keep confidential. BEK moved to quash the subpoena on the grounds that the requested material was protected by the journalist shield statute, N.D.C.C. § 31-01-06.2.

[¶6] After hearing oral arguments on the motion to quash, the district court entered an order requiring BEK to produce J.B.'s interview footage for an in camera review. Addressing the journalist shield statute, the court stated "it is impossible for the court to determine whether withholding the materials requested in the subpoena . . . would amount to a substantial prejudice constituting a miscarriage of justice" without an in camera review. The court also said BEK could renew its request to protect the subpoenaed information if the court would decide to disclose any information to the State after the in camera review. The court did not grant or deny the motion to quash before ordering the in camera review.

II

[¶7] The Court's authority to exercise jurisdiction over a petition for supervisory writ is discretionary. Manning v. Jaeger, 2021 ND 162, ¶ 26, 964 N.W.2d 522. We can choose to exercise our supervisory jurisdiction in matters of important public interest, to prevent injustice in extraordinary cases, or where no adequate alternative remedy exists. Id.

[¶8] Like this case, Grand Forks Herald involved a petition for supervisory writ involving application of North Dakota's journalist shield statute; we chose to exercise our supervisory jurisdiction in Grand Forks Herald because "the merits of the issues involve a matter of substantial public interest . . . the First Amendment right of freedom of the press." 322 N.W.2d at 852. We exercised our jurisdiction even though the information involved—photographs of an accident scene—was not confidential in nature. Id. at 856. The First Amendment issues involved here are more compelling than those addressed in Grand Forks Herald. The information requested by the State includes intimate and sensitive information that J.B. asked to be kept confidential. See id. at 855 (noting the

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compelling interest news organizations have to protect confidential sources). We choose to exercise our supervisory jurisdiction.

III

[¶9] BEK first argues the district court abused its discretion when it ordered an in camera review without first conducting the balancing test of Grand Forks Herald. We review a district court's decision to conduct an in camera review for an abuse of discretion. Haskell v. Grand Forks Pub. Sch. Dist., 2026 ND 40, ¶ 27, 31 N.W.3d 626. We also apply the abuse-of-discretion standard of review to the question whether a miscarriage of justice would occur if information protected by the journalist shield statute was not disclosed. Grand Forks Herald, 322 N.W.2d at 854.

[¶10] The journalist shield statute says in relevant part that persons engaged in gathering news shall not be required to disclose information obtained while gathering news unless a district court "finds that the failure of disclosure of such evidence will cause a miscarriage of justice." N.D.C.C. § 31-01-06.2. In Grand Forks Herald, we constructed a balancing test that discussed several factors for determining whether non-disclosure of information would cause a miscarriage of justice, which included: (1) the public interest in the free flow of information against other important interests; (2) whether the information is confidential; (3) whether or not the information is necessary or critical to the involved cause of action or defense pleaded; (4) whether other reasonable means to obtain the information have been exhausted; and (5) whether the cause of action or defense involved is patently frivolous. 322 N.W.2d at 853-57.

[¶11] We also discussed the potential benefit of an in camera inspection "where the party requesting disclosure has shown that the information is relevant and material; that it could not be secured from any less intrusive source; and that the party had a legitimate need to see and otherwise use it." Grand Forks Herald, 322 N.W.2d at 856 n.4 (citing Matter of Farber, 394 A.2d 330 (N.J. 1978)). One member of our Court noted "[t]he legislature should either require an in camera disclosure whenever the shield is claimed, or eliminate the requirement that the judge make a finding [regarding a miscarriage of justice]." Id. at 858 (Pederson, J., concurring

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specially). We ultimately did not address whether an in camera inspection should have taken place because of the posture of that case. See id. at 856 n.4. The issue of conducting an in camera review is squarely before us now. [¶12] The State has shown the information it requests is relevant and material. Importantly, the district court has not yet made the statutory determination that a failure to disclose the information will cause a miscarriage of justice. Nor has the court ordered any information to be disclosed.

[¶13] North Dakota's journalist shield statute neither requires nor prohibits a district court from conducting an in camera review before making the required miscarriage-of-justice finding. Similarly, nothing in Grand Forks Herald requires or prohibits a court from ordering an in camera review before finding whether a failure to disclose information will cause a miscarriage of justice. While Grand Forks Herald requires a court to balance the factors discussed therein before ordering a disclosure of confidential information, the court has not yet ordered the disclosure of any information.

[¶14] In construing journalist shield statutes similar to North Dakota's, other courts have held that in camera review strikes the appropriate balance between the First Amendment interests involved and a party's need for information gathered by a news organization. See, e.g., State v. Knutson, 539 N.W.2d 254, 257 (Minn. Ct. App. 1995) (collecting cases that "have specified in camera review as an appropriate means of striking this balance between the first amendment privilege and the need for disclosure").

[¶15] This Court has generally held that district courts, as part of the discovery process, possess discretion in deciding whether to conduct in camera reviews of allegedly privileged or protected information. See Haskell, 2026 ND 40, ¶ 27; Hagen v. North Dakota Ins. Rsrv. Fund, 2023 ND 132, ¶ 6, 993 N.W.2d 519; St. Alexius Med. Ctr. v. Nesvig, 2022 ND 65, ¶¶ 22-23, 971 N.W.3d 878; Schmitz v. North Dakota State Bd. of Chiropractic Exam'rs, 2022 ND 52, ¶ 14, 971 N.W.2d 892; Reems on Behalf of Reems v. Hunke, 509 N.W.2d 45, 48 (N.D. 1993). [¶16] The district court did not abuse its discretion by ordering an in camera review. In addition, although district courts must conduct the balancing test set

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out in Grand Forks Herald before finding a miscarriage of justice or ordering disclosure of information covered by the journalist shield statute, neither of those events has yet occurred. The court did not abuse its discretion by ordering an in camera review before first applying the Grand Forks Herald balancing test; that test can be applied after the in camera review and before ordering disclosure of any information protected by the journalist shield statute.

IV

[¶17] BEK next argues the district court abused its discretion when it did not quash the State's subpoena duces tecum requesting production of J.B.'s interview footage. We review a court's decision on a motion to quash a subpoena for an abuse of discretion. Johnston Law Office, P.C. v. Brakke, 2018 ND 247, ¶ 40, 919 N.W.2d 733.

[¶18] BEK's petition on this issue is premature because at this point the district court has not yet denied or granted the motion to quash. However, the court's analysis is incomplete, because it should have addressed the motion to quash before ordering an in camera review.

[¶19] The district court's analysis only addressed whether an in camera review was appropriate when applying the journalist shield statute. But this is a criminal case in which both the State and the criminal defendant seek disclosure of protected information. In criminal cases where the defendant seeks disclosure of privileged or confidential information, a "particularized showing" must be demonstrated before a court should order an in camera review. Pennsylvania v. Ritchie, 480 U.S. 39, 58 n.15 (1987); see also State v. Hummel, 483 N.W.2d 68, 72 (Minn. 1992) (discussing Ritchie and referring to the two "certain prerequisites"

that must be satisfied before a court should conduct an in camera review of privileged or confidential information sought by a criminal defendant); State v. Spath, 1998 ND 133, ¶ 18, 581 N.W.2d 123 (quoting Hummel). [¶20] Before conducting the in camera review it ordered pursuant to the journalist shield statute, the district court should complete the additional analysis required in criminal cases.

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V

[¶21] We exercise our supervisory jurisdiction, but deny the petition. In cases implicating the journalist shield statute, district courts have discretion to order an in camera review before conducting the balancing test of Grand Forks Herald and before making the miscarriage-of-justice finding required by the statute. In criminal cases where a defendant seeks disclosure of privileged or confidential information, district courts should conduct the analysis required by Ritchie and its progeny before ordering an in camera review.

[¶22] Jon J. Jensen

Douglas A. Bahr

Jackson J. Lofgren, D.J.

Bruce A. Romanick, S.J.

[¶23] The Honorable Jackson J. Lofgren, District Judge, and the Honorable Bruce A. Romanick, Surrogate Judge, sitting in place of Tufte, J., and Friese, J., disqualified.

Fair McEvers, Chief Justice, concurring in the result.

[¶24] I agree with the majority's conclusion that the district court need not apply the balancing test set forth in Grand Forks Herald v. District Court in and for Grand Forks County, 322 N.W.2d 850 (N.D. 1982), before conducting an in camera review. Majority, ¶ 16. I also agree with the majority that the district court has not yet denied or granted the motion to quash, and it should have addressed the motion to quash before ordering an in camera review. Majority, ¶ 18. In my view, the court abused its discretion by ordering an in camera review before first completing the analysis under N.D.R.Crim.P. 17 and the cases discussing in camera reviews in criminal cases. While we are not granting the relief requested by BEK Communications to quash the subpoena duces tecum, the majority is effectively supervising by ordering the court to conduct required additional analysis. Therefore, I concur in the result.

[¶25] BEK's petition argues the district court abused its discretion when it failed to apply N.D.R.Crim.P. 17. BEK also argues the court abused its discretion when

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it did not quash the State's subpoena duces tecum requesting production of J.B.'s interview footage.

[¶26] We review a district court's decision on a motion to quash a subpoena for an abuse of discretion. State v. Groce, 2018 ND 46, ¶ 6, 907 N.W.2d 761. "A district court abuses its discretion if it acts in an unreasonable, arbitrary, or unconscionable manner, if its decision is not the product of a rational mental process leading to a reasoned decision, or if it misinterprets or misapplies the law." State v. Glaum, 2024 ND 47, ¶ 37, 4 N.W.3d 540.

[¶27] This is a criminal case in which the State subpoenaed the disclosure of protected information. The defendant also wants access to this information. In North Dakota, subpoenas in criminal cases are governed by N.D.R.Crim.P. 17. The district court did not address the requirements of Rule 17 in its order. Rule 17(c), N.D.R.Crim.P., states in relevant part:

Producing documents and objects.

(1) In General. A subpoena may order the witness to produce any books, papers, documents, data, or other objects the subpoena designates. The court may direct the witness to produce the designated items in court before trial or before they are to be offered in evidence. When the items arrive, the court may permit the parties and their attorneys to inspect all or part of them.

(2) Quashing or Modifying the Subpoena. On motion made promptly, the court may quash or modify the subpoena if compliance would be unreasonable or oppressive. [¶28] This Court has placed more limits on the right to have an in camera review conducted in criminal cases than in civil cases. For example, in State v. Spath, the Court discussed whether a criminal defendant was entitled to have the district court conduct an in camera review of privileged medical and psychological records, purportedly because they could be exculpatory. 1998 ND 133, ¶¶ 10-11, 17-22, 581 N.W.2d 123. The Court recognized "having the trial court review confidential material [in a criminal case] is not a right. It is a discovery option, but only after certain prerequisites are satisfied." Id. ¶ 18 (quoting State v. Hummel, 483 N.W.2d 68, 72 (Minn. 1992)).

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[¶29] The prerequisites discussed in Hummel were to: (1) establish a basis for a claim that the requested information contains material evidence; and (2) make a

"plausible showing" that the information would be "both material and favorable to [the] defense," i.e., be exculpatory. 483 N.W.2d at 72 (quoting Pennsylvania v. Ritchie, 480 U.S. 39, 58 n.15 (1987)).

[¶30] The State argues the privileged information contained in J.B.'s interview footage is needed because it has an obligation to disclose exculpatory evidence to the defendant, Daniel Breijo. The State relies in part upon Ritchie, 480 U.S. 39, arguing an in camera review strikes the appropriate balance between BEK's interests and the State's interests. In criminal cases where the defendant seeks disclosure of privileged or confidential information, a "particularized showing"

must be demonstrated before a court should order an in camera review. Id. at 58 n.15; see also Hummel, 483 N.W.2d at 72 (discussing Ritchie and referring to the two "certain prerequisites" that must be satisfied before a court should conduct an in camera review of privileged or confidential information sought by a criminal defendant); Spath, 1998 ND 133, ¶ 18 (quoting Hummel, at 72). [¶31] I would supervise and grant the petition to the extent BEK requested we require the district court to apply N.D.R.Crim.P. 17 in its analysis, holding the district court abused its discretion by misapplying the law by not conducting the appropriate analysis prior to ordering an in camera review. However, because I agree with the majority that the district court should complete the additional analysis required in criminal cases, I concur in the result. [¶32] Lisa Fair McEvers, C.J.