Wednesday, April 19, 2017

The Lawyer, the Emails and Professional Misconduct

This post examines an opinion from the Supreme Court of Florida that deals with a finding that a Florida lawyer had engaged in “professional misconduct.” The Florida Bar v. Wynn, 2017 WL 632871 (2017) (per curiam). The court begins by explaining that
[w]e have for review a referee's report recommending that Michael Eugene Wynn be found guilty of professional misconduct and suspended for ninety days, followed by two years of probation with conditions. We have jurisdiction. See art.V, § 15, Fla. Const. As discussed below, we disapprove of the referee's recommended discipline and instead impose a one-year suspension, followed by two years' probation.
The Florida Bar v. Wynn, supra.
The Court went on to outline the facts that resulted in this professional misconduct inquiry:
On July 21, 2015, The Florida Bar filed a complaint against Respondent Wynn alleging ethical misconduct in connection with his representation of a client, Sylvia Rhodes, in a landlord-tenant matter. The complaint was referred to a referee, and the parties subsequently entered into a stipulation of the facts and rule violations. The referee approved the stipulation, and in his report, provided the following findings of fact:

`On October 10, 2013, Respondent emailed Ms. Rhodes informing her that $500 was needed for the costs of deposition transcripts. On October 10, 2013, Ms. Rhodes paid $500 to Respondent to be used towards the cost of deposition transcripts and wrote in the memo “Legal Fees.” Respondent deposited the $500 into his business operating account on October 15, 2013, rather than to his trust account. Respondent failed to pay for the deposition transcripts as had been intended. Beginning in December 2013, Ms. Rhodes made several inquiries about the status of the deposition transcripts. In early January 2014, after another email inquiry by Ms. Rhodes, Respondent had a phone conversation with Ms. Rhodes and informed her that due to his financial problems he used the funds to pay for law firm expenses, such as electricity and rent. During the conversation, Respondent indicated he could obtain a loan to pay for the deposition transcripts; however, Ms. Rhodes indicated she would pay the court reporter directly. Respondent further agreed to repay the funds to Ms. Rhodes when he had the financial ability to do so. Respondent converted the $500 to pay for business expenses of Michael E. Wynn P. A., as well as for other purposes.

Respondent failed to hold the $500 that was intended for costs in his trust account. A review of Respondent's bank records revealed the funds were used on items other than rent and electricity. On January 7, 2014, Ms. Rhodes issued a new check for $500 directly to the court reporter to obtain the necessary deposition transcripts, as agreed to by Respondent and Ms. Rhodes. By email in March 2014, Ms. Rhodes again asked Respondent about repayment of the initial $500. By reply email, Respondent stated that he would repay Ms. Rhodes as soon as he could. By email on September 15, 2014, Ms. Rhodes again inquired about the status for the repayment of the initial $500 and requested that Respondent to repay the funds by Christmas time. By reply email on September 15, 2014, Respondent reiterated to Ms. Rhodes that he had completed additional post-judgment legal services which were not part of the original representation and that the fees for services were higher than the $500 Respondent owed Ms. Rhodes. 

Respondent further offered to forgo billing Ms. Rhodes for the additional services in exchange for not having to remit the $500 owed. Respondent never executed a new representation agreement for additional services with Ms. Rhodes. There was never an understanding or agreement that the $500 could be applied towards legal fees. In October 2014, Ms. Rhodes filed a Bar grievance against Respondent. On November 8, 2014, Respondent arranged for Ms. Rhodes and Mr. Rhodes to meet him at MidFlorida Bank in Arcadia, Florida in order to repay the $500. During the meeting, Respondent presented Mr. and Mrs. Rhodes with a receipt of funds he drafted. Ms. Rhodes signed the document, which was notarized, without any discussion about its contents. The receipt of funds indicated that the funds were repaid and requested that the Bar complaint be dismissed. Respondent repaid the $500 upon the condition that Ms. Rhodes would request dismissal of the Bar grievance she filed against Respondent. By letter dated November 9, 2014, Respondent provided a copy of the receipt of funds to the Bar and requested closure of the file.

Respondent did not provide the required Certificate of Disclosure form. By email on November 12, 2014, Respondent was informed by the Bar that his written response to the allegations was required along with his required completed disclosure form. In response to the grievance, Respondent provided a Certificate of Disclosure form, dated November 16, 2014, wherein he incorrectly completed the section for Sole Practitioner and certified that he was `not presently affiliated with a law firm and was not affiliated with a law firm at the time of the act(s) giving rise to the complaint in The Florida Bar File No. 2015–10,358 (20A).’ At the time Respondent completed the November 16, 2014, disclosure form, he was employed by the Office of Regional Conflict Counsel, Second District, in Fort Myers, Florida. Respondent failed to timely notify his superiors with the Office of Regional Conflict Counsel, Second District, of the grievance filed against him as required by Rule 3–7.1 (f). Respondent did not provide notice of the grievance to his superiors with the Office of Regional Conflict Counsel, Second District, until December 2, 2014.
The Florida Bar v. Wynn, supra (quoting the Referee’s report).
The Supreme Court’s opinion goes on to explain that

[a]lso based on the stipulation, the referee recommended that Respondent be found guilty of violating Rules Regulating the Florida Bar 3–7.1(f) (Notice to Law Firms), 4–1.5 (Fees and Costs for Legal Services), 4–8.4(d) (Misconduct—a lawyer shall not engage in conduct prejudicial to the administration of justice), and 5–1.1 (Trust Accounts).

As for discipline, the referee recommended that Respondent be suspended for ninety days, followed by two years of probation during which Respondent would be required to participate in mentor monitoring, submit quarterly reports by a CPA, if in private practice, undergo an office procedures and record-keeping analysis by and under the direction of Diversion/Discipline Consultation Service (formerly LOMAS), and attend ethics school, a trust accounting workshop, and a stress management workshop. The referee also recommended that Respondent pay the Bar's costs. The Bar seeks review of the referee's recommended discipline and argues that a one-year suspension is the appropriate sanction.
The Florida Bar v. Wynn, supra (quoting the Referee’s report).
The Supreme Court then began its analysis of the Referee’s report:
In reviewing a referee's recommended discipline, this Court's scope of review is broader than that afforded to the referee's findings of fact because it is the Court's ultimate responsibility to order the appropriate sanctionSee Fla. Bar v. Anderson, 538 So.2d 852, 854 (Fla. 1989); see also Art. V, § 15, Fla. Const. However, generally speaking the Court will not second-guess the referee's recommended discipline as long as it has a reasonable basis in existing case law and the Florida Standards for Imposing Lawyer Sanctions. See Fla. Bar v. Temmer, 753 So.2d 555, 558 (Fla. 1999).

Here, the Bar does not dispute the referee's reliance upon Florida Standards for Imposing Lawyer Sanctions 4.0 (Violation of Duties Owed to Clients) and 7.0 (Violations of Other Duties Owed as a Professional) in recommending that Respondent be suspended under standards 4.12 and 7.2, rather than disbarred under standards 4.11 and 7.1. The Bar concedes that the referee properly found significant mitigating circumstances that weigh in favor of suspension rather than disbarment in this case. The Bar does dispute, however, the referee's recommendation as to the appropriate length of the suspension.

We agree with the Bar that the referee's recommendation of a ninety-day suspension does not have a reasonable basis in existing case law. First, the main case relied upon by the referee, Florida Bar v. Lopez, 83 So.3d 710 (Fla. 2012), is an unpublished disposition, approving an uncontested report of referee; thus, it cannot constitute `case law’ providing a reasonable basis for the referee's recommendation. Second, none of the other published cases cited by the referee, which are all more than approximately twelve years old, support a short-term non-rehabilitative suspension. In Florida Bar v. Frederick, 756 So.2d 79 (Fla. 2000), the Court imposed a ninety-one-day suspension on an attorney who had engaged in a convoluted series of unethical acts pertaining to funds he received from prospective class action clients. Subsequently, the attorney, prior to withdrawing from the representation, negotiated a settlement with the clients involving a refund to the clients in exchange for their agreement not to contact The Florida Bar or to withdraw any complaint already filed against him. The attorney also employed and improperly permitted a disciplinarily resigned attorney to have direct contact with a client. In Florida Bar v. Smith, 866 So.2d 41 (Fla. 2004), the Court imposed a one-year suspension on an attorney who deposited a $1665 check from a client for filing fees into her operating account and then used the funds for other expenses; failed to diligently represent that client and another client in an immigration matter; and issued a worthless check. The referee in Smith found significant mitigation in the form of, among other things, very serious medical issues, an absence of dishonest or selfish motive, rehabilitation, and remorse. In Florida Bar v. Corces, 639 So.2d 604 (Fla. 1994), the Court imposed a two-year suspension where an attorney intentionally debited a client trust account over $6000, used the funds to pay personal bills, then over the course of twenty months repaid the deficit in the client trust account. Finally, in Florida Bar v. McNamara, 634 So.2d 166 (Fla. 1994), an attorney converted for his own use a $5000 check from a third party that was either to be held in escrow or be used to reduce his client's tax obligation. Although the Court noted that there was evidence in the record to support several mitigating factors, we imposed a three-year suspension.
The Florida Bar v. Wynn, supra.
The opinion goes on to explain that
[h]ere, as in several of the cases discussed above, Respondent converted client funds for his own use and repaid the funds at a later time. In addition, as in Frederick, he attempted to condition the repayment upon the client's agreement not to complain to the Bar about his misconduct. Based on the existing case law, we conclude that the Bar is correct that a one-year suspension, followed by two years' probation with the conditions recommended by the referee, is warranted. As we have noted many times, misuse or misappropriation of client funds is one of the most serious offenses a lawyer can commit, and disbarment is presumed to be the appropriate punishment. Fla. Bar v. Travis, 765 So.2d 689, 691 (Fla. 2000). We see no reason under the circumstances of this case, even given the referee's uncontested findings of mitigation, to impose anything less than a rehabilitative suspension.

CONCLUSION

Accordingly, Michael Eugene Wynn is hereby suspended from the practice of law for one year, followed by two years of probation under the terms and conditions as set forth in the referee's report. The suspension will be effective thirty days from the filing of this opinion so that Wynn can close out his practice and protect the interests of existing clients. If Wynn notifies this Court in writing that he is no longer practicing and does not need the thirty days to protect existing clients, this Court will enter an order making the suspension effective immediately. Wynn shall fully comply with Rule Regulating the Florida Bar 3–5.1(h). Further, Wynn shall accept no new business from the date this opinion is filed until he is reinstated.

Judgment is entered for The Florida Bar, 651 East Jefferson Street, Tallahassee, Florida 32399–2300, for recovery of costs from Michael Eugene Wynn in the amount of $3,975.45, for which sum let execution issue.
The Florida Bar v. Wynn, supra

Monday, April 17, 2017

Operating a Motor Vehicle without a License, The Prosecutor and the Facebook Pos

This post examines a recent opinion from the Court of Appeals of Kentucky. Huff v. Commonwealth, 2017 WL 1102994 (2017). The court begins the opinion by explaining that it granted
discretionary review in this case to address Appellant's contentions that (1) the trial court erred when it failed to strike a juror for cause for violating Kentucky Revised Statutes 29A.310(2);  and (2) a Facebook post made by the prosecutor in Appellant's case disparaging the jury trial process in an unrelated matter one week prior to Appellant's trial created a substantial likelihood of prejudicing the defendant. 
Huff v. Commonwealth, supra. 
This is how the court explains the second issue:
Approximately one week prior to Huff's trial, the prosecutor, Perry Arnold, posted the following comment on his Facebook page in regard to a criminal matter unrelated to Huff's trial:
`I want to thank all the jurors who showed up today and especially the 7 who had to serve all day long. And considering the evidence they were allowed to hear, I think they made the right decision in finding the defendant not guilty. The man was charged with possession of meth and possession of drug paraphernalia for having a meth pipe next to where he was sitting in an apartment. The Judge threw out the meth charge before we even got started on a technicality and that left us with just the drug paraphernalia charge. What absolutely drives me crazy is that we can never tell a jury everything that we know about the facts of the case. I am so glad that I can say Trooper Chad Johnson told the absolute truth in this case. He could have said the defendant had the meth pipe in his pocket. He could have said the defendant told him he brought the meth pipe to the apartment. But Chad told the truth. But we weren't able to tell the whole truth. There was a co-defendant who told Chad that the defendant today brought meth pipe with him to the apartment and that he smoked meth with her there. The Judge wouldn't let us tell the jury that even though the defense was allowed to bring out other hearsay testimony from the co-defendant which made it sound like she probably had all the drugs and paraphernalia. My job as a prosecutor is to see that justice is done and I know that today justice was not done because we were not allowed to present all the evidence.’
(R. at 409–10).
The Court of Appeals then explained that,
[b]ecause of the post, Huff's defense counsel moved the court for a change in venue
 and requested that Mr. Arnold recuse himself. The court denied the motion. Defense counsel moved to individually voir dire the pool, but the request was denied. However, the court permitted defense counsel to prepare a questionnaire that addressed the Facebook issue. The court excused jurors, based on their answers to the questionnaire, if there was indication that he or she had either seen the Facebook post or was a Facebook friend with Mr. Arnold. During voir dire of the panel, free rein was given regarding the Facebook post.

During voir dire, the prosecutor acknowledged and discussed the statements made on Facebook with the potential jurors. Defense counsel provided no commentary nor did he conduct any questioning on the Facebook issue during voir dire.
Huff v. Commonwealth, supra. 
In his appeal, Huff argued that
Arnold's Facebook post mocked the jury trial process, which rendered Huff's trial unfair. Huff contends Mr. Arnold violated Kentucky [Rules of Professional Conduct for Lawyers] SCR 3.130(3.8);he relies on the fact that several potential jurors from Huff's venire saw Mr. Arnold's Facebook post.

The trial court made every effort to remove any member of the venire who may have seen or heard about the Facebook post. Defense counsel was unable to individually question each remaining member of the venire, but was able to distribute the questionnaire specifically on the Facebook issue. It reasonably appears that all potential prejudice created by Mr. Arnold's post was removed. Additionally, defense counsel chose not to conduct questioning specific to the Facebook post during voir dire. Accordingly, Huff has not demonstrated any prejudice to the trial as a result of Mr. Arnold's Facebook post.
Huff v. Commonwealth, supra. 
The opinion notes that Huff also argued that Arnold’s Facebook post violated Kentucky rules governing the ethical obligations of lawyers admitted to practice in that state.  Huff v.
Commonwealth, supra.  The Court of Appeals declined to address that argument, noting that whether Arnold violated bar rules was “a matter reserved for the Kentucky Bar Association.”
Huff v. Commonwealth, supra. 
That brings us back to the issue this post examines. As the opinion explains,
[a]fter the jury was seated and sworn, the trial court instructed the jurors not to have any contact with any parties, witnesses, counsel, or anyone associated with the trial. The admonition was repeated before all recesses and prior to the lunch break. Despite the instruction, Juror 68 was observed speaking with KSP Sergeant Charles Kelton during the trial's lunch break. Sergeant Kelton was a witness for the prosecution at Huff's trial.

Juror 68 was then questioned in chambers about his conversation with the Sgt. Kelton. Juror 68 admitted to the conversation, but stated that they were discussing that night's softball game; Sgt. Kelton and Juror 68 played on a softball team together. Nothing about the trial was mentioned in their discussion. The relationship between Sgt. Kelton and Juror 68 was previously disclosed and discussed during voir dire. Defense counsel moved the court to dismiss Juror 68 from the panel and proceed with an alternate. The trial court denied the motion stating `the standard is whether it's prejudicial to the trial in and of itself.’ . . .

The case proceeded, and the jury found Huff guilty on all charges and recommended the maximum sentence. The district court entered a judgment against Huff in accordance with the jury's verdict and recommendation. Huff sought review by the circuit court on the issues relating to the prosecutor's and Juror 68's conduct. The circuit court affirmed the district court. This Court granted discretionary review.
Huff v. Commonwealth, supra. 
The Court of Appeals found that
Juror 68 was questioned in chambers regarding the interaction with Sgt. Kelton after the admonishment. Based on Juror 68's responses, the trial court found the encounter to be non-prejudicial. It was certainly within the trial court's authority to find otherwise and replace the juror with the alternate. Trial courts are vested with considerable discretion when making prejudice determinations.
Huff v. Commonwealth, supra.  The court therefore found that “[a]ccordingly, we discern no abuse of discretion in the trial court's determination that Juror 68's misconduct was non-prejudicial.” Huff v. Commonwealth, supra. 
The Court of Appeals also declined to accept Huff’s argument about the prosecutor’s Facebook post, explaining that
The trial court made every effort to remove any member of the venire who may have seen or heard about the Facebook post. Defense counsel was unable to individually question each remaining member of the venire, but was able to distribute the questionnaire specifically on the Facebook issue. It reasonably appears that all potential prejudice created by Mr. Arnold's post was removed. Additionally, defense counsel chose not to conduct questioning specific to the Facebook post during voir dire. Accordingly, Huff has not demonstrated any prejudice to the trial as a result of Mr. Arnold's Facebook post.
Huff v. Commonwealth, supra. 
The Court of Appeals therefore affirmed Huff’s conviction. Huff v. Commonwealth, supra.  

Saturday, April 15, 2017

Robbery, Conspiracy and Facebook

This post examines an opinion from the U.S. District Court for the Southern District of Indiana – Albany Division: U.S. v. Adkinson, 2017 WL 1318420 (2017). The U.S. District Court Judge who has the case begins her opinion by explaining that
[t]his matter is before the Court on Defendant Lawrence Dusean Adkinson's (“Adkinson”) Motion to Suppress (Filing No. 291). Adkinson is charged with Count 1: Conspiracy to Commit Robbery in violation of 18 U.S. Code § 1951(a), Count 2: Conspiracy to Brandish a Firearm in Furtherance of a Crime of Violence in violation of 18 U.S. Code § 924(o), Count 3: Robbery in violation of 18 U.S. Code § 1951(a), and Count 4: Brandishing a Firearm in Furtherance of a Crime of Violence in violation of 18 U.S. Code § 924(c). (Filing No. 48.) Adkinson petitions the Court to suppress any and all evidence obtained through cell phone records and his Facebook account. 
U.S. v. Adkinson, supra.
The judge goes on to explain that
Adkinson petitions the Court to suppress any and all evidence obtained through cell phone records and his Facebook account. Neither party requested an evidentiary hearing, nor is one warranted, as neither party has noted any significant disputed factual issues. `District courts are required to conduct evidentiary hearings only when a substantial claim is presented and there are disputed issues of material fact that will affect the outcome of the motion.' United States v. Curlin, 638 F.3d 562, 564 (U.S. Court of Appeals for the 7th Circuit 2011). Pursuant to Federal Rule of Criminal Procedure 12(d), the Court now states its findings of fact and conclusions of law and DENIES the Motion to Suppress.
U.S. v. Adkinson, supra (ermphasis in the original).
The judge then began outlining her “findings of fact” with regard to the circumstances involved in the case:
On July 27, 2015, a T-Mobile retail store in Clarksville, Indiana was robbed by four black males. Initially, two of the robbers entered the T-Mobile store posing as customers. Once the store was clear, the two robbers pulled out handguns and ordered the employees away from the counter and onto the floor inside the office. After receiving a cell phone call from one of the robbers within the store, two additional robbers entered the T-Mobile store and locked the doors. The four robbers took approximately one hundred cell phones and placed them into black trash bags. They also stole T-Mobile's DVR surveillance system, as well as wallets, cash, and cell phones belonging to T-Mobile's employees. During the robbery, an employee overheard one of the robbers speaking into his cell phone stating they were “ready to go”. The four males then exited the store through the emergency exit located in the rear of the store.

On July 28, 2015, a Verizon Wireless store in Lexington, Kentucky was robbed. Initially two black males entered the store, and they were later joined by a third black male. Handguns were brandished and the store employees were led to the rear of the store and ordered to place cell phones and electronic devices into large trash bags. The robbers attempted to steal the Verizon store's DVR surveillance system; however, surveillance of the three subjects inside the store was captured. The three males also stole wallets, cash and cell phones belonging to store employees. Thereafter, from July 2015 through September 2015, several other retail cell phone stores throughout the Midwest area, were robbed in a similar fashion.

Following the robbery of Verizon Wireless, on July 28, 2015, a representative from Verizon provided Ed Schroeder (`Schroeder’), T-Mobile's Regional Loss Prevention Manager for Michigan, Indiana and Kentucky, with surveillance of the Verizon Wireless robbery in Lexington. T-Mobile employees in Clarksville informed Schroder that the robbers in Lexington looked similar to the men who robbed them in Clarksville.
U.S. v. Adkinson, supra.
The opinion goes on to explain that
[a]s part of T-Mobile's Loss Prevention standard procedures, whenever a T-Mobile retail location, T-Mobile Premium Retailer, or a Metro PCS location reports a burglary or robbery, the Loss Prevention Investigations Team will pull ‘tower dumps' of all calls that were made on any T-Mobile tower in a small radius and time frame of the location. (Filing No. 320 at 5.) In addition, if information is received from other wireless companies about similar incidences, T-Mobile will also pull tower dumps of those events to aid in their investigation. Id. at 5-6. This data is analyzed by the loss prevention team to find any links/connections between each incident. Id. at 6. Based on its loss prevention policy, T-Mobile initiated a tower connection data dump for the Clarksville store robbery, as well as a tower connection data dump of the T-Mobile tower servicing the Verizon Wireless in Lexington. From the data dump, T-Mobile learned that a T-Mobile account with the cell phone number (708) 543-7900 was near both tower locations at the time of the robberies.
U.S. v. Adkinson, supra.
The judge went on to explain that
[t]he mission statement of T-Mobile's Loss Prevention program is to `protect people, property and company profitability by utilizing the Loss Prevention teams' knowledge, expertise, and partnerships.’ (Filing No. 320 at 5.) The Loss Prevention team investigates incidents such as fraud and theft internally as well as large external cases originating in retail T-Mobile locations. Id. The investigative team also has access to subscriber information for T-Mobile accounts. In addition, T-Mobile has a Privacy Policy which describes how they collect, use, disclose, and store personal information of its customers. In regards to its Legal Process and Protection policy, the Privacy Policy explains that `T-Mobile will provide customer information where necessary to comply with the law, such as disclosure of information to a law enforcement agency for the customer's safety or the safety of others, or when T-Mobile is compelled to do so by subpoena or other legal process.’ (See Filing No. 320-7 at 3.) Further, the Privacy Policy explains the following:

`We may disclose Personal Information, and other information about you, or your communications, where we have a good faith belief that access, use, preservation or disclosure of such information is reasonably necessary: . . . To protect our rights or interests, property or safety or that of others.
            Id. at 13.
U.S. v. Adkinson, supra.
The next development in the case was, apparently, that on
August 4, 2015, a conference call occurred between Schroeder, FBI Special Agent Ronald A. Hornback, Jr. (`Agent Hornback’), Detective Nate Walls of the Clarksville Police Department (`Detective Walls’), and T-Mobile's Loss Prevention investigator, Scott Wohl (`Wohl’). Schroder and Wohl informed Agent Hornback and Detective Walls that they had already initiated a tower connection data dump of the T-Mobile tower servicing its store in Clarksville and the Verizon Store in Lexington, and the T-Mobile account with phone number (708) 543-7900 was near both tower locations during the commission of the robberies. (Filing No. 320 at 4, Filing No. 320-2 at 5). Wohl further stated that he had determined the account associated with the number (708) 543-7900 was previously associated with a pre-paid T-Mobile account in the name of Lawrence Adkinson, however on July 7, 2015, Adkinson authorized the number (708) 543-7900 to be switched to a new subscriber, named Darcell Jones. Wohl also indicated that he located pictures of Adkinson via social media and the pictures were consistent with one of the robbers depicted in the Lexington robbery surveillance.

After the conference call, Agent Hornback searched Facebook for the name `Lawrence Adkinson.’ After conducting several searches on Facebook, Agent Hornback found a public Facebook account, bearing the username `L.a. Booky,’ which contained a profile photograph of someone similar to one of the robbers captured in the Lexington robbery surveillance. Agent Hornback soon determined that he had located Adkinson's public Facebook account.
U.S. v. Adkinson, supra.
The opinion then explains that
[s]everal weeks later, on August 23, 2015, Wohl contacted Agent Hornback regarding the robbery of another T-Mobile store located in St. Louis, Missouri. Wohl explained that the (708) 543-7900 T-Mobile account phone number was near the store at the time of the robbery. Three days later, on August 26, 2015, Wohl again contacted Agent Hornback stating there was another armed robbery of a T-Mobile located in DeKalb, Illinois, which he believed was related to the previous three robberies because the (708) 543-7900 phone number was in the area at the time of the robbery.

Thereafter, Agent Hornback contacted the DeKalb Police Department and learned that three of the robbers—K'Ron Price, Paul Grissom, and Tyren Windell—were apprehended. The DeKalb Police Department recovered Windell's abandoned cell phone and noticed that Windell was in contact with phone number (708) 543-7900 near the time of the robbery. DeKalb police officers searched the abandoned cell phone which revealed that (708) 543-7900 was in the phone's contacts under the name `Bookie.’ After receiving this information, Agent Hornback again accessed the public Facebook page of `L.a. Booky’ and noticed that Price and Windell were listed in `L.a. Booky's’ friends list.

On September 3, 2015, the Government applied for and obtained an order, pursuant to 18 U.S. Code § 2703, to retrieve historical phone records for phone number (708) 543-7900, including call records and tower connection data. The historical connection data revealed that the (708) 543-7900 phone number was connected to cell towers near the time of other robberies across Illinois and in Hammond, Indiana. The Government then sought a precision location warrant for phone number (708) 543-7900. While drafting the application for a precision warrant, Wohl informed Agent Hornback that (708) 543-7900 was no longer active, but the equipment previously associated with phone number (708) 543-7900 was now utilizing the number (708) 262-6900. Based on this information, United States Magistrate Judge Van T. Willis issued a precision location warrant for phone number (708) 262-6900 on September 11, 2015 and T-Mobile was served with the warrant thereafter.
U.S. v. Adkinson, supra.
The U.S. District Court Judge then took up what she described as the three legal issues in the case:
Adkinson moves the Court to suppress any and all evidence obtained without a warrant from his cell phone records and Facebook page. Adkinson contends the issues before the Court are: 1) whether T-Mobile acted as a government agent, 2) whether Adkinson had a reasonable expectation of privacy in his location, and 3) whether the Government was required to obtain a search warrant to search his Facebook page.
U.S. v. Adkinson, supra. The opinion takes up the first two issues, in the order given above.  U.S. v. Adkinson, supra.
With regard to whether T-Mobile acted as a government agent in this case, the judge explained that
Adkinson argues that T-Mobile acted as an agent of the Government when conducting warrantless data dumps. `The Fourth Amendment generally does not apply to searches and seizures by private parties, but it does apply if the private party is acting as a government agent.’ United States v. Aldridge, 642 F.3d 537, 541 (7th Cir. 2011) (citing United States v. Hall, 142 F.3d 988, 993 (7th Cir. 1998)); see also United States v. Shahid, 117 F.3d 322, 325 (7th Cir. 1997). The Court considers two factors when determining whether a private party acted as an agent of the government. Here, those factors include: 1) whether the Government knew of and acquiesced in the intrusive conduct, and 2) whether T-Mobile's purpose in conducting the search was to assist law enforcement or to further its own agenda. See United States v. Hall, 142 F.3d 988, 993 (7th Cir. 1998); Shahid, 117 F.3d at 325. The Court also considers whether the Government requested the data dump or offered T-Mobile a reward. See Shahid, 117 F.3d at 325; Aldridge, 642 F.3d at 541. The defendant bears the burden of proving agency. See id.

Adkinson admits that there is no evidence of a reward from the Government to T-Mobile, but concludes that T-Mobile expected to receive the identification of individuals who robbed several of its stores, as well as the recovery of its stolen merchandise. Adkinson argues the Government clearly knew of, and acquiesced in, T-Mobile's conduct because Agent Hornback was in constant contact with T-Mobile, and T-Mobile provided Agent Hornback with geographic locations immediately after several other robberies. To support his contentions, Adkinson mistakenly asserts that T-Mobile initiated the process of retrieving data from its towers in Clarksville and Lexington only after participating in a conference call with Agent Hornback and Detective Walls.

After reviewing the record, the Court finds that Adkinson's contentions do not establish agency. The Court first notes that there is no evidence that Agent Hornback, Detective Walls, or any other law enforcement officer instructed T-Mobile to conduct warrantless data dumps. The facts before the Court are that all information provided to Agent Hornback by T-Mobile, prior to the issuance of a warrant, was done at T-Mobile's initiation in compliance with its loss prevention policy. `The Fourth Amendment is not triggered when a private party initiates a search and contacts police after evidence is discovered.’ Hall, 142 F.3d at 993. The Court also notes that there is no evidence that T-Mobile expected any benefit, but rather, T-Mobile acted out of its own desire to help law enforcement officers investigate the robberies of its retail locations. `Private parties may, of their own accord, pursue the same objectives they have set for their elected officials without acquiring the legal status of governmental agent.’ Shahid, 117 F.3d at 326.

The Court concludes that T-Mobile did not act as an agent when it initiated data dumps that linked the phone number (708) 543-7900 to the Clarksville robbery, and several other robberies. Accordingly, the Court denies Adkinson's request to suppress cell phone records and information resulting from T-Mobile's data dumps.
U.S. v. Adkinson, supra.
The Judge then took up the related issue of an “expectation of privacy”, explaining that
Adkinson next asserts that he maintained a reasonable expectation of privacy in his location and Facebook account and moves the Court to suppress any information obtained from his cell phone regarding his location, as well as any evidence gathered from his Facebook page. `A defendant objecting to a search bears the burden of proving a legitimate expectation of privacy in the area searched.’ United States v. Pitts, 322 F.3d 449, 456 (7th Cir. 2003) (citing United States v. Ruth, 65 F.3d 599, 604 (7th Cir. 1995)). `A legitimate expectation of privacy exists when the defendant exhibits a subjective expectation of privacy and the expectation is one that society is prepared to recognize as reasonable.’ Id.

Adkinson argues that T-Mobile providing Agent Hornback with cell phone and location data immediately after robberies took place amounts to GPS tracking of a phone, which is not permitted without a warrant. See United States v. Jones, 564 U.S. 400, 404-05 (2012) (holding the government's installation of a GPS device on a target's vehicle, and its use of that device to monitor the vehicle's movements, constituted a search within the meaning of the Fourth Amendment); see also United States v. Karo,468 U.S. 705, 717 (1984) (rejecting the government's contention that it should be able to monitor beepers in private residences without a warrant where there is a reasonable belief “that a crime is being or will be committed and that monitoring the beeper wherever it goes is likely to produce evidence of criminal activity”). However, the contemporaneous tracking of a GPS device utilized in Jones has been distinguished from acquiring historical electronic location evidence such as that obtained in this case. See United States v. Rogers, 71 F. Supp.3d 745, 749-750 (N.D. Ill. 2014).

The Court concludes that Adkinson's argument is without merit for two reasons. First of all, T-Mobile's Privacy Policy establishes that it may `disclose, without . . . consent, the approximate location of a wireless device to a governmental entity or law enforcement authority when . . . [T-Mobile] reasonably believe[s] there is an emergency involving risk of death or serious physical harm,’ and `to protect [its] rights ... interests, property or safety’ of others. (Filing No. 320-7 at 9, 13.) As an authorized account holder, Adkinson agreed and consented to T-Mobile's Privacy Policy. See United States v. Yang, 478 F.3d 832, 835 (7th Cir. 2007) (noting the Supreme Court has reasoned that an individual claiming a subjective expectation of privacy must exhibit that expectation, and `he or she must not have manifested by his or her conduct a voluntary consent to the defendant's allegedly invasive actions’) (emphasis added).

In addition, Adkinson has presented no authority to support his contention that there is a Fourth Amendment protected expectation of privacy in historical cell cite connection data. On the other hand, the Government has presented several decisions which held to the contrary. United States v. Wheeler, 169 F.Supp.3d 896, 911 (E.D. Wisc. 2016); United States v. Davis, 785 F.3d 498, 511 (11th Cir. 2015) (en banc); see generallyUnited States v. Thousand, 588 Fed.Appx. 666, 670 (7th Cir. 2014). Accordingly, the Court denies Adkinson's motion to suppress the cell phone location evidence.
U.S. v. Adkinson, supra (emphasis in the original).
The judge then took up the Facebook issue, explaining that
Adkinson also asserts that the Government violated his Fourth Amendment rights by obtaining information and messages authored by Adkinson from his Facebook page without a warrant. Whether the Fourth Amendment applies to Facebook depends on a user's privacy settings. United States v. Meregildo, 883 F.Supp.2d 523, 525-526 (S.D. N.Y. 2012). There is no expectation of privacy in an open Facebook page. United States v. Devers, 2012 WL 12540235, *3 (N.D. Okla. 2012). Agent Hornback affirms in his affidavit of September 2015, that through public database searches, a Facebook profile for Adkinson was located under username `L.a. Booky’ and then compared to surveillance video captured during the Verizon sort in Lexington. (Filing No. 320-2).

Adkinson argues that while the Government secured consents or warrants for viewing messages from his alleged co-conspirators, his Facebook account was `not open to the world’ and that certain information requires a password known only to Adkinson. This may be true. However, the information derived from Adkinson's Facebook page for the purpose of making an identification was publically available; specifically, Adkinson's profile picture and friends list. In addition, Adkinson has no expectation of privacy in messages that he authored and then shared on others' Facebook pages. Based on the facts presented, the Court concludes that Adkinson has not met his burden in establishing a legitimate expectation of privacy. Accordingly, Adkinson's motion to suppress evidence derived from his Facebook page is denied.
U.S. v. Adkinson, supra.


Monday, April 10, 2017

The Double Murder, the Blogger and the Reporter’s Privilege

This is a long post, because it examines a complex issue: It examines a recent opinion from the U.S. District Court for the NorthernDistrict of Illinois: Simon v. Northwestern University, 2017 WL 1197097 (2017). The Magistrate Judge who has the case began the opinion by explaining that
[p]ursuant to Federal Rule of Civil Procedure 45(d)(3), Martin Preib, a former third-party defendant to this litigation, (hereinafter `Preib’) moves to quash Defendant Paul Ciolino's (hereinafter `Ciolino’) subpoena for phone call recordings made between Preib and the Plaintiff while Plaintiff was incarcerated at the Illinois Department of Corrections (hereinafter `IDOC’) on the grounds the recordings are protected under the Illinois reporter's privilege. 735 Ill. Comp. Stat. 5/8-901. Ciolino argues that the Illinois reporter's privilege is inapplicable, or in the alternative, if the privilege does apply, Preib waived it by speaking on a line he knew was monitored and recorded. (Reply Preib's Mot. Quash, ECF No. 172 at 2.) The underlying action involves multiple claims and multiple parties. The Court will discuss only the most relevant details below.
Simon v. Northwestern University, supra.
The Judge goes on to explain how, and why, the litigation arose:
The underlying action arises from an alleged conspiracy to frame Alstory Simon for a double-murder he maintains he did not commit. (Compl., ECF No. 1). In summary, Simon contends a Northwestern investigative journalism class framed him for the murders to secure the release of the true killer, Anthony Porter. Id. Ciolino, an alleged adjunct Professor at Northwestern University, was hired as an investigator to teach students enrolled in the journalism course various investigatory techniques.

In 1998, the investigative journalism class began investigating the case of Anthony Porter, a man convicted of a double-murder. (Id. at 10-11.) Ciolino was hired as an investigator to help prepare the students to conduct interviews in low-income neighborhoods, prisons, and jails. (Id. at 12.) To successfully claim Porter's innocence, Plaintiff asserts that Ciolino manufactured evidence and compelled false confessions to invent an alternative suspect: Plaintiff. (Id. at 15.) Simon's complaint details various investigatory techniques employed by Ciolino that Plaintiff contends resulted in Porter's exoneration and Plaintiff's wrongful conviction for the very same double-murder. (Id. at 23.) Simon subsequently served fifteen years in prison until the charges against him were vacated. He was released in 2014. (Id. at 1.) Stripping away the allegations of the complaint, there is no dispute that Alstory Simon was incarcerated for fifteen years based on charges the former Cook County State's Attorney, Anita Alvarez, publicly acknowledged were not properly brought.

Preib is a police officer, freelance journalist, and author of the blog Crooked City (Preib's Mot. Quash, ECF No. 142 at 3 (`Preib also publishes a news blog located at www.crookedcity.org publishing news stories based on his own investigative reporting criminal justice in Chicago.') In a lengthy article, entitled What's Wrong with the Wrongful Conviction Movement? (hereinafter `Article’), Preib wrote about the Simon investigation and made specific references to Ciolino's involvement that are consistent with several of the allegations in Simon's complaint. (Id., Ex. B.) Preib states that most of his fact-gathering for the Article was conducted telephonically with Plaintiff while Plaintiff was incarcerated at IDOC. (Id. at 2.) In fact, `logs provided by IDOC show that Plaintiff and Preib had well over a 100 phone calls between February, 2013 and October, 2014.’ (Ciolino Resp. Motion to Intervene, ECF No. 245 at 2.) The Article was published in Chicago's Newcity magazine. Newcity, a Chicago-based media company, was founded in 1986. See http://www.newcity.com (follow hyperlink `Newcity Network: “About Us”’) (last visited Mar. 9, 2017). Originally, Newcity was a `South Loop neighborhood newspaper’ but it has evolved into Chicago's only locally-owned and operated weekly cultural magazine. Id.; Brian Hieggelke, The Necessity of Evolution at Newcity, Newcity, Feb.1, 2017, at 5. Today, Newcity magazine is distributed to roughly a thousand Chicago-area locations including general outlets, retail stores, schools, restaurants, and the Newcity boxes placed throughout the city. See www.newcity.com, supra (follow hyperlink `Editorial & Publishing’). Newcity will soon be converted into a monthly magazine. Brian Hieggelke, supra. Based on this lengthy history, we consider Newcity a recognized news media outlet in Chicago.
Simon v. Northwestern University, supra.
The Magistrate Judge then noteD that
[i]n order to defend the claims against him, Ciolino subpoenaed all recordings of phone conversations Simon made while incarcerated at IDOC. (Ciolino's Resp. Pl.'s Mot., ECF No. 173 at 2.) Preib moves to quash only recordings of phone calls between Simon and himself on the grounds his conversations are protected under the Illinois reporter's privilege.
Simon v. Northwestern University, supra.
The Judge then addressed the “procedural posture” of the litigation, explaining that
[a]s a preliminary matter, Preib must intervene to bring this motion. When Preib originally filed his motion to quash the subpoena for certain IDOC recordings he was a third-party defendant to this action. However, the claims against him were subsequently dismissed. (See Jan. 3, 2017 Judge Dow Opinion, ECF No. 216.) Therefore, Preib is neither a party to this litigation nor a recipient of the subpoena. The Court ordered Preib to move to intervene pursuant to Federal Rule of Civil Procedure 24. (Feb. 10, 2017 Minute Order, ECF No. 236.) See also Barker v. Local 150, Int'l Union of Operating Eng'rs, 2010, Case No. 08 C 50015, U.S. Dist. LEXIS 22685, at *7 (N.D. Ill. Mar. 11, 2010) (`The IIIFFC is not a party to this lawsuit. Therefore, it must intervene before filing a motion to quash.’). Once the Court considers Preib's motion to intervene, the Court must also determine whether Preib has standing to enforce his motion to quash.

Pursuant to Federal Rule of Civil Procedure 24(a), `[o]n timely motion, the court must permit anyone to intervene who . . . claims an interest relating to the property or transaction that is the subject of the action.” Fed. R. Civ. P. 24(a). Preib seeks intervention for the limited purpose of obtaining a ruling on his motion to quash. (Preib's Rule 24 Mot. Intervene, ECF No. 237.) Preib argues that he should be permitted to intervene on the grounds he has an interest in this litigation, namely the recorded conversations that he contends are protected by the Illinois reporter's privilege. (Id. at ¶ 4.) Preib further argues that his interests are not already adequately represented by the current parties because he is the only one who is able to assert the reporter's privilege for this material. (Id. at ¶ 5.)

`A party may seek intervention as of right if the party has “an interest” and is “so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest, unless the applicant's interest is adequately represented by existing parties.”’ Ligas v. Maram, 478 F.3d 771, 773 (7th Cir. 2007) (quoting Fed. R. Civ. P. 24(a)(2)). Intervention as of right is only required when a party establishes that (1) the motion was timely (2) the party possesses an interest related to the subject matter of the action (3) `the disposition of the action threatens to impair that interest’; and (4) the parties in the action fail to adequately represent the movant's interest. Id. (citing United States v. BDO Seidman, 337 F.3d 802, 808 (7th Cir. 2003)). The interest asserted must be `a “direct, significant, legally protectable” one.’ Id. at 808 (quotingSec. Ins. Co. of Hartford v. Schipporeit, 69 F.3d 1377, 1380 (7th Cir. 1995)). `A colorable claim of privilege could constitute a legally protectable interest sufficiently significant to warrant intervention as of right, assuming that the three remaining factors are also satisfied.’ BDO Seidman, 337 F.3d 802 at 808 (citing In re Grand Jury Subpoena, 274 F.3d 563, 570 (1st Cir. 2001)).

Preib first states that the Court should permit him to intervene because his motion was timely and that he merely seeks a ruling on a previously filed motion. (Preib's Rule 24 Motion to Intervene, ECF No. 237 at ¶ 1.) As stated above, Preib contends he has an interest in this litigation—the asserted privileged nature of the recorded conversations—that will not be protected if he is not permitted to intervene since he is the only one who can raise the reporter's privilege as to the recordings. (Id. at ¶¶ 4-5.) The Court agrees Preib has established a protectable interest that is not otherwise protected by the current parties. The Court thus grants Preib's timely motion to intervene.
Simon v. Northwestern University, supra.
The Judge noted that,
[h]aving resolved the issue of intervention, we now turn to the issue of standing. The parties disagree over whether Preib has standing to quash the subpoena. Ciolino argues that Preib lacks standing to object to the production of recorded phone calls that have been shared with, and are maintained by, a third party, IDOC. (Ciolino Resp. Mot. Intervene, ECF No. 245 at 5.) Ciolino further asserts that by allowing IDOC to record his telephone conversations, Preib waived the privilege and thus lacks standing to quash the subpoena. (Id.)

Conversely, Preib states he has standing to quash the subpoena because the conversations are protected under the reporter's privilege and only he can assert that privilege. (Preib's Memo Re Standing, ECF No. 238 at 1.) Preib argues although IDOC is not a party to this litigation he can move to quash the subpoena because `”[a] party has standing to move to quash a subpoena addressed to another if the subpoena infringes upon the movant's legitimate interests.”’ (Id. at 2) (quoting United States v. Raineri, 670 F.2d 702, 712 (7th Cir. 1982).)

Federal Rule of Civil Procedure 45(d)(3)(A) requires a court to quash or modify a subpoena to which a person is subject if the subponea, inter alia, `requires disclosure of privileged or other protected matter, if no exception or waiver applies.’ Fed. R. Civ. P. 45(d)(3)(A)(iii). Given that Preib has asserted a privilege, and he is the only one who is able to assert it, the Court finds that Preib has standing to move to quash the subpoena.
Simon v. Northwestern University, supra.
The Judge then took up the substantive issue in the case, noting that
Preib argues the phone call recordings are protected under the Illinois reporter's privilege. Under Illinois state statute, reporters have a qualified privilege that protects them from being compelled to disclose their sources. 735 Ill. Comp. Stat. 5/8-901. Pursuant to the Illinois reporter's privilege statute (hereinafter `IRPA’ or `Statute’), a court cannot `compel any person to disclose the source of any information obtained by a reporter’ unless a court orders a divestiture of the privileged sources sought. \d. at 901& 907. Because the instant case is in federal court based on diversity jurisdiction, and Illinois law controls the substantive claims alleged, we apply Illinois privilege law to resolve the issue presented. See Fed. R. Evid. 501 (`state law governs privilege regarding a claim or defense for which state law supplies the rule of decision’); see also Kelley v. Lempesis, No. 13-cv-4922, 2015 U.S. Dist. LEXIS 107719, at *6 (N.D. Ill. Aug. 17, 2015) (`Because federal jurisdiction in this action is based upon diversity of citizenship, and Illinois law supplies the rules of decision, Illinois law governs whether the reporter's privilege attaches to the requested video outtakes.’)
Simon v. Northwestern University, supra.
The Judge then explains that the
statutory privilege applies when a reporter is compelled to disclose his source. A reporter is any `person regularly engaged in the business of collecting, writing or editing news for publication through a news medium on a full-time or part-time basis; and includes any person who was a reporter at the time the information sought was procured or obtained.’ 735 Ill. Comp. Stat. 5/8-902. The Statute defines a `news medium’ as:

`any newspaper or other periodical issued at regular intervals whether in print or electronic format and having a general circulation; a news service whether in print or electronic format; a radio station; a television station; a television network; a community antenna television service; and any person or corporation engaged in the making of news reels or other motion picture news for public showing.’

Id.

A source is the individual or means through which the information was obtained. Id. The reporter holds the reporter's privilege. People v. Pawlaczyk, 724 N.E.2d 901, 905 (Ill. 2000) (`the privilege [is] granted to reporters under the Reporter's Privilege Act’). While the privilege belongs to the reporter, the source is the subject of the IRPA's protection. 735 Ill. Comp. Stat. 5/8-901.
Simon v. Northwestern University, supra.
The Judge then took up the issue of whether Preib qualified as a “reporter”:
Preib is a reporter under the statute's definition. A reporter is any person `regularly engaged in the business of collecting, writing or editing news for publication through a news medium on a full-time or part-time basis; and includes any person who was a reporter at the time the information sought was procured or obtained.’ 735 Ill. Comp. Stat.Ill. Comp. Stat 5/8-902. While courts have not directly enumerated every profession that might fall within the definition, they have interpreted a `reporter’ to include an editor of a medical journal, photographers, and certain bloggers. . . . . People v. Slover, 753 N.E.2d 554, 557 (Ill. App. Ct. 2001) (photographers); Cukier v. Am. Med. Ass'n, 630 N.E.2d 1198, 1202 (Ill. App. Ct. 1994) (editor of a medical journal); Johns-Byrne Co. v. Technobuffalo LLC, No. 2100 L 009161 (Ill. Cir. Ct. July 13, 2012) (Mot. Recons. Granting Rule 224 Petition) (bloggers). . . .

Since 2005, Preib has been publishing nonfiction stories. (Id.) His work has been published in Tinhouse MagazineNewcityPlayboy Magazine, and The Chicagoan Magazine. (Id.) Preib maintains a blog entitled Crooked City. (Id. at 3.) On his blog, Preib publishes news stories based on his investigative reporting on criminal justice issues in Chicago. (Id.) As a freelance journalist, Preib has written articles for news publications and authored the Article for Newcity. (Preib's Reply, ECF No. 176 at 8.) Preib states that during the time he spoke with Simon, he was regularly collecting and writing stories for Newcity and for his blog. (Id.) Preib states that most of his reporting for the Article was conducted via monitored telephone calls with Simon while Simon was incarcerated at IDOC. (Preib's Mot. Quash, ECF No. 142 at 2.) While Preib did not provide any details regarding his editing process, we find that his conduct with respect to assembling the Article comfortably falls within the definition of a reporter. . . .

Preib's other employment as a Chicago police officer does not preclude our conclusion that Preib also serves as a reporter. The Statue does not define a reporter as a person exclusively engaged in the business of collecting, writing or editing news for publication, but rather the statue requires a reporter to be regularly engaged in the business of collecting, writing, or editing news for publication. Therefore, so long as Preib was collecting news for publication on a regular basis, and here he was, then he is a reporter under the Statute's definition notwithstanding his other employment. . . .
Simon v. Northwestern University, supra (emphasis in the original).            
The Judge then took up the related issue raised by Ciolino, who argued that the
recordings of Preib's conversations are not protected under the Illinois reporter's privilege because they are not a source. The Court agrees. The subject of the Statute's protection is a reporter's source. A source is the `person or means from or through which the news or information was obtained.’ 735 Ill. Comp. Stat. 5/8-902. Courts have interpreted this definition to include individuals as well as news-gathering materials. In Illinois, the statutory privilege applies to all sources regardless of whether the source is confidential. People v. Palacio, 607 N.E.2d 1375 (Ill. App. Ct. 1993). Moreover, the Statute does not distinguish between published and unpublished material. Slover, 753 N.E.2d at 554.

Sources are not limited to individuals; they include the medium from which the information was derived. The Illinois Appellate Court has categorically stated that a source includes more than individuals and extends to reporter's resource materials. See id. at 557-58. (`By defining ‘source’ to include a ‘means,’ the legislature clearly intended the privilege to protect more than simply the names and identities of witnesses, informants, and other persons providing news to a reporter’); People ex rel. Scott v. Silverstein, 412 N.E.2d 692, 695 (Ill. App. Ct. 1980), rev'd on other grounds, 412 N.E.2d 692 (Ill. 1981) (‘[T]he definition of “source” makes no distinction between ... ‘person or means from or through which the news or information was obtained.’”) (citations omitted).

Here, the IDOC recordings are not Preib's source because he did not use them to obtain information for his Article. See 735 Ill. Comp. Stat. 5/8-902 (`”[S]ource’ means the person or means from or through which the news or information was obtained.”’) Preib states that `[m]uch of the reporting for [the A]rticle was conducted in telephone calls with Simon while he was incarcerated.’ (See Preib's Mot. Quash, ECF No. 142 at 2.) Accordingly, Preib's conversations and notes stemming from those conversations are clearly his source. But significant to the Court is Preib's notable silence on any relationship between the IDOC recordings and his Article. Absent from Preib's motion is whether he has ever accessed, seen, let alone listen to, the IDOC recordings. The recordings at issue are controlled, owned, and were created by IDOC. Preib, thus, cannot allow a third party to record his conversations, keep and control those conversations, and then argue that the recordings are his.
Simon v. Northwestern University, supra (emphasis in the original).
The Judge therefore concluded that
[u]ltimately, the insurmountable problem that Preib faces is that the subpoena is not directed to him and it does not seek his materials. Instead, the subpoena seeks recordings controlled by a third-party; recordings never accessed by Preib as part of his journalistic efforts; and recordings that Preib knew were being created as he interviewed Simon. The first two factors inform our decision that these recordings are not Preib's “source” as that term is defined by the statute. The third factor affirms that there is not an equitable argument that we need to consider in the instant matter. Suffice it to say, if the subpoena were directed to Preib and sought Preib's recordings of his conversations with Simon, the analysis would be markedly different.
Simon v. Northwestern University, supra (emphasis in the original).

The Judge therefore held that “[f]or the aforementioned reasons, the Court grants Preib's Motion to Intervene (ECF No. 237) and denies his motion to quash IDOC recordings (ECF No. 142).”  Simon v. Northwestern University, supra.