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HOBLEY v. BURGE

September 16, 2004.

MADISON HOBLEY, Plaintiff,
v.
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.

RELEVANT FACTS

  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 4-5.)

  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 sentence. (Id.)

  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.)

  PROCEDURAL BACKGROUND

  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 ...


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