United States District Court, N.D. Illinois, Eastern Division
September 16, 2004.
MADISON HOBLEY, Plaintiff,
CHICAGO POLICE COMMANDER JON BURGE, et al., Defendants.
The opinion of the court was delivered by: GERALDINE SOAT BROWN, Magistrate Judge
MEMORANDUM OPINION AND ORDER
Non-parties John Conroy ("Conroy") and Chicago Reader, Inc.
("Chicago Reader") (collectively, the "Movants") filed a motion
to quash the subpoena duces tecum served upon them by
defendants Jon Burge, Robert Dwyer, James Lotito, Virgil Mikus,
Daniel McWeeny, John Paladino and Patrick Garrity (collectively,
the "Individual Defendants") and for the entry of a protective
order. [Dkt 150.]*fn1 That motion was referred to this court
by the District Judge. [Dkt 151.] For the following reasons, the
motion filed by Conroy and Chicago Reader is granted in part,
denied in part, and stricken in part as moot.
Conroy is a newspaper journalist employed as a staff writer by
Chicago Reader, the publisher of the Reader, a weekly newspaper
of general circulation. (Mot. ¶¶ 1-2.) For fifteen years, Conroy
has investigated and written numerous articles regarding alleged
police brutality, coerced confessions and wrongful convictions,
particularly of Area 2 detainees. (Mot. ¶ 3.) Nearly all of those
articles were published in the Reader. (Id.) According to the
Individual Defendants, the published articles "have been a
driving force behind the allegations of widespread abuse and
torture of Area 2 detainees." (Resp. Opp'n Mot. Quash at 1.) In
some of those articles, Conroy discussed the torture allegations
made by plaintiff Madison Hobley ("Hobley") and certain aspects
of his criminal case. (Mot. ¶ 4-5; Resp. Opp'n Mot. Quash at
According to Conroy, his contact with Hobley began in December
1990. (Mot., Ex. D, John Conroy Aff. ¶ 33.) After he wrote an
article covering the civil trials of Andrew Wilson, which was
published in January 1990, Conroy began receiving letters and
phone calls from incarcerated men who claimed that they were
tortured at Area 2. (Resp. Opp'n Mot. Quash at 2-3; Conroy Aff. ¶
2, 6.) One of those men was Hobley, who sent Conroy an
"introductory letter" in 1990. (Conroy Suppl. Aff. ¶ 7.) Conroy
investigated those allegations in the years that followed.
(Conroy Aff. ¶ 6.)
On April 16, 1991, Conroy met with Hobley in a penitentiary in
Pontiac, Illinois. (Conroy Suppl. Aff. ¶ 1.) Although he made no
electronic recording of that meeting, Conroy took two pages of
handwritten notes. (Id. ¶ 2.) At the time of that meeting,
Hobley was in the middle of a gap in his legal representation; he
was waiting for new counsel to be appointed. (Id. ¶ 3.) Conroy
claims that, in light of Hobley's lack of counsel, he and Hobley agreed that
Conroy "would not disclose or publish the information [Hobley]
provided until and unless his new attorneys gave their approval."
(Id.) New counsel was appointed on June 4, 1991. (Id.)
However, according to Conroy, he has never received authorization
from Hobley, any attorney, or any other person to publish the
information that Hobley provided to him and, as a result, he has
not disclosed or published the information he acquired at that
meeting with Hobley. (Id. ¶ 4.) About a month after their
meeting, but prior to counsel being appointed, Hobley sent Conroy
another letter. (Conroy Suppl. Aff. ¶ 7.)
Conroy subsequently wrote two articles concerning Hobley.
(Conroy Suppl. Aff. ¶ 5.) According to Conroy, neither of those
articles contain any references to his meeting or conversations
with Hobley or to any letters that he received from Hobley.
(Id.) The first article, entitled "Town Without Pity," was
published by Chicago Reader on January 12, 1996 and explains the
history of the torture allegations and highlights, among others,
the case of Madison Hobley. (Conroy Aff. ¶ 7; Mot., Ex. A, "Town
Without Pity".) Shortly after the publication of that article,
Conroy had a brief telephone conversation with Hobley, during
which Conroy took handwritten notes consisting of 137 words
spread over 29 lines. (Conroy Suppl. Aff. ¶ 6.) Conroy claims
that, during that telephone conversation, he and Hobley did not
discuss the fire, arrest, interrogation, trial, conviction or
The second article, entitled "This Is A Magic Can," was
published by Chicago Reader on May 26, 2000. (Conroy Aff. ¶¶
17-19; Mot., Ex. B, "This Is A Magic Can".) In that article,
Conroy gave a detailed account of Hobley's arrest, trial,
conviction, and death sentence. (Id.) Conroy received a third
letter from Hobley, but it is unclear when that letter was sent.
(Conroy Suppl. Aff. ¶ 7.) In his supplemental affidavit, Conroy
states that a final letter was sent to him in January 1996, following publication of "This Is A Magic Can." (Conroy Suppl.
Aff. ¶ 7.) However, "This Is A Magic Can" was published on May
26, 2000; "Town Without Pity" was published in January 1996.
(Conroy Suppl. Aff. ¶ 17; Conroy Aff. ¶ 7.) Conroy also stated
that he has an undated note consisting of 24 words in shorthand
and cursive that he wrote during a phone conversation about
Hobley, but he cannot recall with whom he was speaking when he
took those notes. (Conroy Suppl. Aff. ¶ 8.) Until now, Conroy has
never publicly mentioned that he spoke to or corresponded with
Hobley. (Id. ¶ 5.)
It is undisputed that Chicago Reader's publication of Conroy's
articles concerning claims that suspects had been tortured by
Chicago Police was instrumental in drawing both public and
official attention to those allegations. (Conroy Aff. ¶ 3; Resp.
Opp'n Mot. Quash at 2-3.) The Individual Defendants acknowledge
that two months after the House of Screams appeared in the
Reader, the Chicago Police Department's Office of Professional
Standards began an official investigation into the allegations,
which lead ultimately to the dismissal of defendant Jon Burge
from the Chicago Police Department. (Resp. Opp'n Motion Quash at
2-3.) The report resulting from that investigation (commonly
called the "Goldston Report") cited House of Screams as a
"sound starting point" for the investigation. (Id., Resp. Opp'n
Mot. Quash, Ex. C at 1.)
In December 2003, Hobley's counsel served Defendants with
plaintiff's initial disclosures pursuant to Fed.R. Civ. P.
26(a)(1). (Resp. Opp'n Mot. Quash, Ex. A, Rule 26(a)(1)
Disclosures.) In those disclosures, Hobley's counsel identified
Conroy as an individual "likely to have discoverable information
that [he] may use to support [his claims] . . ." (Rule 26(a)(1)
Disclosures at 1, 5.) Plaintiff's disclosures also listed a number of
individuals who were the subject of articles written by Conroy.
(Id. at 4-5.)
Based on plaintiff's Rule 26(a)(1) Disclosures, the Individual
Defendants caused a subpoena duces tecum to be served on Conroy
and Chicago Reader. The subpoena sought the following:
Any and all documents, including but not limited to
reports, notes and correspondence; video, audio or
data recordings; photographs; or electronic media
regarding Madison Hobley and/or the arson fire that
occurred on January 6, 1987 at an apartment building
located at 1121-1123 East 82nd Street, Chicago.
(Resp. Opp'n Mot. Quash at 5; Mot., Ex. C., Subpoena).
On April 5, 2004, Conroy and Chicago Reader filed the present
motion under Federal Rules of Civil Procedure 45(c)(3)(A) and
26(c) to quash the subpoena and to protect them from compelled
disclosure of all sources, information and documents sought by
the subpoena including, in particular, those that are
confidential. (Mot. at 1, 9-10.) In support of their motion,
Conroy and Chicago Reader asserted, inter alia, that the
information sought by the subpoena is protected by a qualified
reporter's privilege or, in the alternative, the subpoena is not
reasonable in the circumstances. (Mot. at 5-6, 8-9.)
The Individual Defendants filed a response in opposition to
that motion but, at the same time, narrowed the scope of their
request. Specifically, the Individual Defendants excluded from
their request information that was obtained by Conroy from
known individuals to whom he promised confidentiality in
exchange for their information. (Resp. Opp'n Mot. Quash at 7.)
The Individual Defendants agreed that the such information
"should be protected from disclosure at this juncture." (Id.)
A hearing was held on Conroy and Chicago Reader's motion on
June 3, 2004. (Resp. Opp'n Suppl. Br., Ex. A, June 3, 2004 Transcript ("Tr.").) During the
hearing, counsel for the Individual Defendants tacitly admitted
that the original subpoena they served on the Movants was overly
broad. (Id. at 41-42.) In fact, counsel for the Individual
Defendants immediately agreed to narrow the scope of the subpoena
even more, stating that they were not seeking secondary sources
(e.g., transcripts from court proceedings).*fn2 As the
hearing continued, however, it became apparent that the
Individual Defendants were only interested in a very small subset
of information sought by the original subpoena. Counsel for the
Individual Defendants stated that they wanted, for impeachment
purposes, any statements Hobley made to Conroy relating to the
fire that occurred on January 6, 1987.*fn3 (Id. at 43-45.)
Because counsel for the Individual Defendants did not attempt to
justify any other categories of information sought by the
original subpoena and, in fact, explicitly stated that the
Individual Defendants were willing to "concede on the other
issues" (Id. at 59), the question now before this court is
whether Conroy should be required to produce any statements
Hobley made to him relating to the fire that occurred on January
6, 1987. To the extent Conroy and Chicago Reader's motion sought
to quash any information sought by the original subpoena beyond
that limited category, the motion is moot. Pursuant to the court's request (Tr. 59-60), the parties
submitted supplemental briefs on the limited issue of whether a
subpoena seeking only statements Hobley made to Conroy is
enforceable. (Suppl. Br.; Resp. Opp'n Suppl. Br.) For the reasons
set forth below, the court finds that the subpoena is enforceable
to the extent it seeks the letters sent by Hobley to Conroy, and
the motion to quash is denied with respect to those letters.
Except to the extent that the motion is moot, the motion is
otherwise granted, including with respect to any notes taken by
Conroy of conversations with or about Hobley.
Rule 45(c) of the Federal Rules of Civil Procedure provides
protection for persons subject to subpoenas. Under Rule 45(c)(3),
a court must quash or modify a subpoena if it "requires
disclosure of privileged or other protected matter and no
exception or waiver applies." Fed.R. Civ. P. 45(c)(3)(A)(iii).
Conroy and Chicago Reader initially argue that the subpoena
should be quashed because the information sought is protected by
a qualified reporter's privilege. (Mot. at 4-5.) However, in
McKevitt v. Pallasch, 339 F.3d 530, 532-33 (7th Cir. 2003),
the Seventh Circuit specifically rejected the argument that the
First Amendment provides journalists special protection against
subpoenas, at least with respect to information from
non-confidential sources. The Movants argue that the decision in
McKevitt was wrongly decided, and ask the court to look to the
reasoning in cases such as Neal v. City of Harvey,
173 F.R.D. 231 (N.D. Ill. 1997), and Gulliver's Periodicals, Ltd. v. Chas
Levy Circulating Co., Inc., 455 F. Supp. 1197 (N.D. Ill. 1978).
(Reply at 3 n. 3.) However, the decision in McKevitt is the law
in this Circuit, which this court is bound to follow.
The facts in McKevitt, however, are different from the
situation here. In McKevitt, three Chicago journalists were ordered to produce tape recordings of
their interviews with an FBI informant, David Rupert, who was the
main witness in an Irish terrorism prosecution against Michael
McKevitt. 339 F.3d at 531. The three journalists had tape
recorded interviews with Rupert in connection with a book they
were writing about Rupert's experiences spying on the Irish
Republican Army. Id. McKevitt's lawyers sought access to the
tape recordings in preparation for their cross-examination of
Rupert at trial. Id. The journalists objected on the basis of
the federal common law reporter's privilege. Id. Significantly,
however, Rupert, the source, did not object to the disclosure of
the tapes to McKevitt's counsel. Id. at 532. The district
court, pursuant to 28 U.S.C. § 1782 (which allows a district
court to order the production of evidence for use in foreign
legal proceedings if the materials are not privileged), ordered
the journalists to produce the tapes, finding that the privilege
had been overcome. Id. at 531. However, shortly before the
deadline for production of the interview tapes, the journalists
appealed to the Seventh Circuit and moved for a stay. Id. The
Seventh Circuit denied the journalists' motion for stay and
dismissed the appeal as moot. Id. at 535. Later, the Court
issued an opinion explaining its decision. McKevitt,
339 F.3d 530.
After reviewing the decision of Branzburg v. Hayes,
408 U.S. 665 (1972), the Seventh Circuit remarked that interpretations of
that landmark case led most courts of appeal to conclude, "rather
surprisingly," that there is a reporter's privilege, despite the
lack of agreement on its scope. McKevitt, 339 F.3d at 532. The
Seventh Circuit's reading of Branzburg was far less expansive.
Although the Seventh Circuit indicated a willingness to provide
First Amendment protection to information from confidential
sources, it reasoned that when the information came from a
non-confidential source, First Amendment concerns were not
implicated. Id. at 533. In articulating the standard to be applied, the Seventh Circuit stated:
It seems to us that rather than speaking of
privilege, courts should simply make sure that a
subpoena duces tecum directed to the media, like any
other subpoena duces tecum, is reasonable in the
circumstances, which is the general criterion for
judicial review of subpoenas. . . . We do not see why
there need to be a special criteria merely because
the possessor of the documents or other evidence
sought is a journalist.
339 F.3d at 533 (emphasis added) (citations omitted).
At least one court in this District has found, based on
McKevitt, that information obtained by a reporter from a
confidential source is entitled to First Amendment protection. In
Solaia Technology, LLC v. Rockwell Automation, Inc., No. 03 C
6904, 2003 WL 22597611 at *1 (N.D. Ill. 2003) (Lefkow, J.), a
non-party publishing company filed a motion to quash a subpoena
duces tecum served on it by the plaintiff. The court, citing
McKevitt, agreed to quash the subpoena to the extent it sought
disclosure of information from confidential sources (e.g., an
anonymously published letter and any documents related thereto).
Solaia, 2003 WL 22597611 at *2. However, the court in Solaia
Technology was unwilling to protect taped and written
communications between the publishing company and the defendants,
finding that they were not confidential because the sources were
known. Id. The court went on to explain: "This information is
not from a confidential source and would not be protected under
the First Amendment, nor can any subpoena duces tecum requesting
disclosure of such information be viewed as
Citing McKevitt and Solaia, the Movants argue that Conroy's
handwritten notes of his conversations with Hobley are "shielded from compulsory
production" because they were made pursuant to a "confidentiality
agreement." (Suppl. Brief at 7-8.) According to Conroy's
affidavit, Conroy and Hobley agreed, at the April 16, 1991
meeting in the penitentiary, that Conroy "would not disclose or
publish the information [Hobley] provided until and unless his
new attorneys gave their approval." (Conroy Suppl. Aff. ¶ 1, 3.)
However, the only evidence of this so-called "confidentiality
agreement" is found in Conroy's affidavit. See Shields
Enterprises, Inc. v. First Chicago Corp., No. 86 C 10213, 1988
WL 142200 at *4 (N.D. Ill. Dec. 28, 1988) (Moran, J.) (finding
that conclusory affidavit was insufficient to demonstrate the
confidentiality of documents). No affidavit was submitted by
Hobley to confirm that he entered into such an agreement.
Furthermore, even if a confidentiality agreement was in place,
the scope of that agreement and its application in the present
situation, where Hobley is represented by counsel, is unclear.
Finally, Hobley is the plaintiff in the underlying action and has
spoken to the media on a number of occasions regarding his
allegations of torture and abuse. Based on the evidence, the
court finds that the Movants have not demonstrated that Hobley's
communications with Conroy can be protected under the rubric of
However, that finding does not end the inquiry. When the
information sought is from a non-confidential source, the Seventh
Circuit directs courts to evaluate subpoenas directed to the
media like any other subpoenas, in terms of whether they are
"reasonable in the circumstances." McKevitt, 339 F.3d at 533.
In determining whether a request is "reasonable in the
circumstances," courts should look to the established discovery
procedures set forth in the Federal Rules of Civil Procedure.
See, e.g., Herbert v. Lando, 441 U.S. 153, 177 (1979) (although
declining to find a constitutional privilege in a libel case
involving a newspaper defendant, the Supreme Court stressed the
availability in the Rules of "ample powers of the district judge to prevent
abuse," specifically citing Fed.R. Civ. P. 26(b)(1) and 26(c));
In re Daimlerchrysler AG Securities Litigation, 216 F.R.D. 395,
402 (E.D. Mich. 2003) (applying the established discovery
procedures set forth in the Federal Rules of Civil Procedure to
determine whether a discovery request served on a reporter is
Rule 45(c) provides other protections in addition to the
protection of privileged materials. Subsection (3)(A) of that
Rule provides that a court "shall" quash or modify a subpoena
that "subjects a person to undue burden." Fed.R. Civ. P.
45(c)(3)(A)(iv). Subsection (3)(B) of that Rule sets out
circumstances under which a court "may" quash or modify a
subpoena or may impose specified conditions to production.
Fed.R. Civ. P. 45(c)(3)(B). Evaluating the evidence before the court
and the arguments of counsel, the court finds, pursuant to Rule
45(c), that the motion must be denied as to Hobley's letters to
Conroy but granted as to Conroy's notes relating to Hobley.
Hobley's letters have much in common with the tape recordings
that were the subject of the McKevitt decision. The practical
burden of production on Conroy is limited. The letters are three
specific, identifiable documents, and will not require an
extensive search through Conroy's files. Their potential
relevance to the claims and defenses in Hobley's lawsuit is
apparent. Because they consist of Hobley's own statements, they
may be fodder for cross-examination or lead to other admissible
evidence, or possibly deemed an admission under Fed.R. Evid.
801(d)(2). They were sent unsolicited to Conroy, and not
anonymously or under a promise of anonymity. At the time, Hobley
was convicted and in prison, not acting as a confidential
whistleblower. It can be inferred that Hobley's purpose in
sending them to Conroy was to obtain publicity for his cause.
Considering the larger perspective, the court does not believe
that, under these circumstances, the interests protected by the
First Amendment will be jeopardized by requiring production of
letters from a plaintiff touching on the subjects that form the basis of the
lawsuit that he filed.
Conroy's notes, however, are different. It must be remembered
that Conroy and Chicago Reader are not parties to this lawsuit.
Likewise, this is not a libel action and none of Conroy's
articles is a subject of this lawsuit. The only value of the
notes to the Individual Defendants is the possibility that they
might reflect something that Hobley said to Conroy that might
be helpful to the Defendants. However, the notes are not Hobley's
original work. Conroy would almost certainly have to be deposed
to interpret them before any use could be made of them,
multiplying the burden on Conroy. For example, Conroy took one of
the notes during a telephone conversation about Hobley; Conroy
does not even recall whether he was speaking to Hobley or to
someone else. (Conroy Suppl. Aff. ¶ 8.) Production of Conroy's
notes would impose a significantly greater burden for
significantly less useful material.
Additionally, the Movants argue that if discovery of reporters'
notes is permitted in civil litigation, journalistic practices
would be forced to change, with the accuracy and quality of
journalism suffering. (Suppl. Br. at 9.) Although McKevitt
undermines the reporter's privilege that had previously been
cited in a number of opinions protecting reporters'
notes,*fn5 the decision in McKevitt did not discuss the
subject of reporters' notes, because the plaintiff only sought
the tape recordings. Nothing in McKevitt suggests that a
reporter's notes are discoverable in civil litigation simply
because the reporter interviewed a party to that litigation. In
considering the burden versus benefit analysis required under the
civil discovery rules, the court in Daimlerchrysler aptly
observed, "Given the important role that newsgathering plays in a
free society, courts must be vigilant against attempts by civil litigants to turn non-party journalists or
newspapers into their private discovery agents."
216 F.R.D. at 406. While acknowledging that the Sixth Circuit (unlike the
Second Circuit) had not adopted the reporters' privilege, the
court also found applicable to the burden analysis the concern
expressed by the Second Circuit in Gonzales v. National
If the parties to any lawsuit were free to subpoena
the press at will, it would likely become standard
operating procedure for those litigating against any
entity that had been the subject of press attention
to sift through the press files in search of
information supporting their claims. The resulting
wholesale exposure of press files to litigant
scrutiny would burden the press with heavy costs of
subpoena compliance, and could otherwise impair its
ability to perform its duties. . . .
Daimlerchrysler, 216 F.R.D. at 406 (quoting Gonzales v.
National Broadcasting Co., Inc., 194 F.3d 29, 35 (2d Cir.
Conroy also argues that his notes are his confidential work
product. He argues and states in his affidavit that he has spent
15 years and thousands of hours gathering information on claims
of police brutality and that disclosing his notes would severely
harm, if not irreparably injure, his ability to continue
investigating allegations of police brutality, which is a
still-developing story, as well as impair his ability to develop
other confidential sources in the future. (Mot. ¶ 15; Reply at 6;
Conroy Aff. ¶¶ 24-28.) Rule 45(c)(3)(B)(i) permits the court to
protect against "disclosure of a trade secret or other
confidential research, development, or commercial information."
Fed.R. Civ. P. 45(c)(3)(B)(i). There is nothing in the Federal
Rules that suggests that research for the purpose of news
reporting is to be given less protection than research for the
purpose of product development. The Individual Defendants have
not shown a substantial need for Conroy's notes. It is the
classic fishing expedition for something that might be helpful.
Providing Hobley's letters meets their needs without the
unwarranted intrusion into Conroy's work. Thus, the court finds that requiring Conroy or Chicago Reader
to produce notes relating to conversations with or about Hobley
would impose an undue burden on the Movants. It would disclose
Conroy's confidential research for which the Individual
Defendants have not shown a substantial need that cannot be
otherwise met. Accordingly, pursuant to Fed.R. Civ. P.
45(c)(3)(A)(iv) and (B)(i), the Movants' motion is granted in
part and denied in part as follows: The subpoena is modified to
require production only of the three letters Conroy received from
For the foregoing reasons, the Motion of John Conroy and
Chicago Reader, Inc. to Quash Subpoena and for Entry of
Protective Order is granted in part, denied in part and stricken
as moot in part. The subpoena directed to the Movants is modified
to require production only of Hobley's three letters to Conroy.
IT IS SO ORDERED.