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
Magazine, Newcity, Playboy 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.
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