Id. Therefore, the qualified privilege is designed to protect the overarching public policy of access to information, and not confidentiality for a particular party. Palandjian v. Pahlavi, 103 F.R.D. 410, 412 (D.D.C.1984). Thus, the assertion that Mr. Mintz is a third party does not vitiate the privilege.

As the reporters point out, however, numerous cases (including persuasive district court decisions from this circuit) indicate that only reporters, not sources, may waive the privilege. See, e.g., United States v. Cuthbertson, 630 F.2d 139, 147 (3d Cir.1980); Palandjian v. Pahlavi, 103 F.R.D. 410, 413 (D.D.C.1984); Anderson v. Nixon, 444 F.Supp. 1195, 1198-99 (D.D.C.1978). For the contrary proposition, the special counsel cites McKevitt v. Pallasch, 339 F.3d 530 (7th Cir.2003), but that case involved a criminal defendant's effort to obtain non-confidential records from the biographers of a government witness, not waiver of confidentiality by a previously unidentified source.

In the wake of Branzburg, courts faced with assertions of reporters' privileges have proceeded on a case-by-case basis, balancing the reporters' rights against the interests of those seeking information. United States v. Criden, 633 F.2d 346 (3d Cir. 1980), cert. denied, 449 U.S. 113, 101 S.Ct. 924, 66 L.Ed.2d 842 (1981); United States v. Cuthbertson, 630 F.2d 139 (3d Cir.), cert. denied sub nom. Cuthbertson v. C.B.S. Inc., 449 U.S. 1126, 101 S.Ct. 945, 67 L.Ed.2d 113 (1981); Miller v. Transamerica Press, Inc., 621 F.2d 721, 726, on rehearing 628 F.2d 932 (5th Cir. 1980), cert. denied, 450 U.S. 1041, 101 S.Ct. 1759, 68 L.Ed.2d 238 (1981); Palandjian v. Pahlavi, 103 F.R.D. 410 (D.D.C. 1984); Continental Cablevision v. Storer Broadcasting, 583 F. Supp. 427 (E.D.Mo. 1984). As a result of their case-by-case analyses, the courts eventually fashioned a three-step test, first articulated in Garland v. Torre, 259 F.2d 545 (2d Cir.), cert. denied, 358 U.S. 910, 79 S.Ct. 237, 3 L.Ed.2d 231 (1958), for resolving the privilege cases: the reporter's privilege is overridden only if (a) the information sought is relevant, (b) it cannot be obtained by alternative means, and (c) there is a compelling interest in the information.

riteria with little consideration to weighing the other relevant considerations. See, e.g., U.S. v. National Talent Associates, Inc., 1997 WL 829176, at *4-5 (D.N.J. Sept. 4, 1997 (quashing government subpoena for NBC's "Dateline" outtakes where government failed to establish necessity and could seek the information through alternative sources); Damiano v. Sony Music Entertainment, Inc., 168 F.R.D. 485, 487, 497-98 (D.N.J. 1996) (motion to compel production of unpublished portions of a reporter's interview denied where unpublished portions were material and relevant but did not "go to the heart of the claim" and therefore unnecessary and plaintiff failed to establish an absence of alternative sources); U.S. v. Marcos, 1990 WL 74521, at *3-4 (quashing subpoena for CBS "60 Minutes" interview including defendant's exculpatory statements where disclaimers were not necessary or critical to government's case despite being circumstantially probative as to defendant's consciousness of guilt); Palandjian v. Pahlavi, 103 F.R.D. 410 (D.D.C. 1984) (quashing subpoena where the information defendant sought was available from alternative sources); Brown & Williamson Tobacco Corp. v. Wigand, 643 N.Y.S.2d 92 (App. Div. 1996) (quashing subpoena where outtakes were not critical to the action because litigant had "ample proof of alleged breach of confidentiality agreement in the parts of the interview that were publicly broadcast).