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Davis v. City of Springfield

April 1, 2009

RICKEY B. DAVIS, PLAINTIFF,
v.
CITY OF SPRINGFIELD, ILLINOIS, DEFENDANT.



The opinion of the court was delivered by: Byron G. Cudmore United State Magistrate Judge

OPINION

BYRON G. CUDMORE, U.S. Magistrate Judge

Pending before the Court is a Motion to Quash Plaintiff's Subpoena (d/e 203) (Motion to Quash) filed by non-party witness Dusty Rhodes. Rhodes asks the Court to quash a subpoena served on her by Plaintiff Rickey B. Davis that requires her to appear for deposition and produce documents. Davis opposes the Motion to Quash. Plaintiff's Memorandum in Opposition to Motion to Quash Subpoena (d/e 207) (Plaintiff's Opposition). Rhodes has filed her Court-ordered reply. Memorandum of Law in Reply to Plaintiff's Memorandum in Opposition to Motion to Quash (d/e 215) (Rhodes' Reply). The Court then granted Davis leave to file a surreply, which he has done. Plaintiff's Surreply Memorandum in Opposition to Motion to Quash Subpoena (d/e 217) (Plaintiff's Surreply).

Thus, the matter is fully briefed and ripe for determination. This Court has jurisdiction to consider the matters pursuant to 28 U.S.C. § 636(b)(1)(A) and Local Rule 72.1. For the reasons set forth below, the Motion to Quash is allowed.

BACKGROUND

Davis' Second Amended Complaint (d/e 172) alleges claims of race discrimination and retaliation under Title VII (Count I) and 42 U.S.C. §§ 1981 & 1983 (Count II). Davis is an African-American male who, at all relevant times, was employed by Defendant City of Springfield, Illinois as a police officer. According to the Second Amended Complaint, Davis has previously filed claims of race discrimination and retaliation against the Defendant and has spoken out against race discrimination in the City of Springfield and the Springfield Police Department (SPD). Davis alleges that Defendant discriminated and retaliated against him by taking action affecting the terms and conditions of his employment, issuing unwarranted discipline against him, mishandling Internal Affairs matters against him, transferring him from the criminal investigations division to the patrol unit, transferring him from the day shift to the midnight shift and then to the second shift, and releasing confidential medical information about him to the general public without his consent.

Rhodes is a journalist for the Illinois Times, a weekly newspaper of general circulation in Central Illinois. On September 5, 2006, Davis filed a written Application for Disability Benefits with the Springfield Police Pension Fund. Plaintiff's Opposition, Ex. 2. In the Application, Davis identified the nature of his disability as "Depression." Id. Rhodes wrote about the application in an article entitled "Shift Change: Controversial cop wants out; hasn't worked since March 7" which appeared in the September 14, 2006 edition of the Illinois Times. Plaintiff's Opposition, Ex. 3. The article noted that "Davis, known for his outspoken leadership of the Black Guardians Association, has applied for duty-related disability, citing depression." Id. The article contained a general explanation of the disability pension process from SPD officer Kevin Barrington, who was president of the Pension Fund Board. According to the article, Barrington would not comment on Davis' case, stating that "the board members will vote on facts they're given." Id. The article also noted that "Davis declined to comment." Id. Davis avers that he eventually "withdrew [his] application for a disability pension because of the public disclosure in the Illinois Times and the resulting questions and comments [he] received." Plaintiff's Opposition, Ex. 1, Affidavit of Rickey R. Davis (Davis Aff.), ¶ 6.

Davis issued the subpoena at issue on January 9, 2009. Plaintiff's Opposition, Ex. 4. The subpoena directed Rhodes to appear for deposition on February 25, 2009 and to produce for inspection and copying "any notes or documents concerning Rickey Davis' request for disability retirement as reported by you on or about 9/14/06." Id. Rhodes filed the pending Motion to Quash on February 19, 2009, asserting that the subpoena imposes an undue burden on her and, alternatively, that compliance with the subpoena would require disclosure of a trade secret or other confidential research information.

ANALYSIS

A party has a general right to subpoena any person to appear at a deposition or to produce documents for inspection and copying. Fed. R. Civ. P. 45. This right is not limitless, however, and Fed. R. Civ. P. 45(c) provides several express protections for individuals subject to subpoena. Under Fed. R. Civ. P. 45(c)(3)(A)(iv), upon timely motion, the issuing Court must quash or modify a subpoena that "subjects a person to undue burden." Under Fed. R. Civ. P. 45(c)(3)(B)(I), upon motion, the issuing Court may quash or modify a subpoena that requires the disclosure of "a trade secret or other confidential research, development, or commercial information."

As a threshold matter, the Court addresses the scope of the subpoena. The subpoena directed Rhodes to appear for deposition and to produce for inspection and copying "any notes or documents concerning Rickey Davis' request for disability retirement as reported by you on or about 9/14/06." Plaintiff's Opposition, Ex. 4. It is apparent from the briefing, however, that Davis is interested in only a small portion of the information sought in the subpoena. Davis asserts that he "wants to depose Ms. Rhodes to find out who revealed to her that he was suffering from depression, in particular whether it was an employee or official of Defendant" and that he "wants to examine any notes or summaries of her interview with the informant." Plaintiff's Opposition, p. 3; see also id., p. 10 ("All Mr. Davis is seeking, however, are any notes she took of her interview with the source or any summaries she made of the interview."). Therefore, the Court finds that Davis concedes the Motion to Quash as it relates to other information. Thus, the Motion to Quash is allowed as it relates to all information other than the identity of the source who informed Rhodes of Davis' pension application and any notes or summaries of her interview with the informant.

After the Seventh Circuit's decision in McKevitt v. Pallasch, 339 F.3d 530 (7th Cir. 2003), it is clear that our circuit does not recognize a blanket federal reporter's privilege. McKevitt was being prosecuted in Ireland for terrorism. By motion in the United States District Court for the Northern District of Illinois, McKevitt sought tape recordings from journalists that he believed would be useful to him in the cross-examination of David Rupert, a key prosecution witness. Id. at 531. The journalists, who had a contract to write Rupert's biography, interviewed him in the course of their research and made tape recordings of the interviews. The District Court directed that the recordings be turned over, and the journalists appealed. The Seventh Circuit declined to stay the disclosure. The Seventh Circuit, citing Branzburg v. Hayes, 408 U.S. 665 (1972), specifically rejected the argument that the First Amendment provides journalists special protection against subpoenas with respect to information from non-confidential sources. McKevitt, 339 F.3d at 533. Additionally, while McKevitt involved non-confidential sources, the Seventh Circuit has subsequently noted in dicta that generally "[t]here isn't even a reporter's privilege in federal cases." United States Dept. of Educ.. v. National Collegiate Athletic Ass'n, 481 F.3d 936, 938 (7th Cir.2007) (citing Branzburg, 408 U.S. 665; University of Pennsylvania v. EEOC, 493 U.S. 182, 201 (1990); McKevitt, 339 F.3d 530). Moreover, the Supreme Court opinion in Brazenburg makes clear that the interest of the press in maintaining the confidentiality of sources is not absolute.

The McKevitt Court instructed "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 . . . ." McKevitt, 339 F.3d at 533. The Court turns first to the question of undue burden. The Seventh Circuit has applied a relative hardship test in analyzing undue burden under Fed. R. Civ. P. 45(c)(3)(A)(iv), considering whether the burden of compliance with a subpoena would exceed the benefit of production of the material sought by it. Northwestern Memorial Hosp. v. Ashcroft, 362 F. 3d 923, 927 & 933 (7th Cir. 2004). In the instant case, it is clear that the burden of compliance on Rhodes far exceeds the benefit of production to Davis.

First, Rhodes is not a party to the litigation. "[N]on-parties are not treated exactly like parties in the discovery context, and the possibility of mere relevance may not be enough; rather, non-parties are entitled to somewhat greater protection." Patterson v. Burge, 2005 WL 43240, at *1 (N.D. Ill. Jan. 6, 2005); see also Bond v. Utreras, 2006 WL 1806387, at *4 (N.D. Ill. June 27, 2006). Burden in the third-party "context means more than mere administrative hardship. It encompasses the ...


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