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Simon v. Northwestern University

United States District Court, N.D. Illinois, Eastern Division

January 6, 2017

ALSTORY SIMON, Plaintiff,
v.
NORTHWESTERN UNIVERSITY, DAVID PROTESS, PAUL J. CIOLINO Defendants

          Robert M. Dow Jr. Judge

          MEMORANDUM OPINION AND ORDER

          M. David Weisman United States Magistrate Judge

         I. Introduction:

         Pursuant to Federal Rule of Civil Procedure 45(d), Plaintiff has moved to quash Defendant's subpoena for fifteen years' worth of phone call recordings made while Plaintiff was incarcerated by the Illinois Department of Corrections (hereinafter “IDOC”) on the grounds the recordings would give the Defendant access to privileged attorney-client communications and communications irrelevant to this litigation. (Mot. Quash Def. Ciolino's Subpoena, ECF No. 145 at 1.) Defendant has responded that the recordings contain crucial evidence necessary to defend the pending claims against him. (Def. Ciolino's Resp. Pl.'s Mot., ECF No. 173 at 2.) The underlying action involves multiple claims and multiple parties. We highlight only the most germane details below:

         II. Factual Background

         Plaintiff Alstory Simon maintains he was incarcerated for over a decade and a half for a double murder he did not commit. (Compl., ECF No. 1 at 1.) Simon contends a Northwestern University investigative journalism class framed him for the murders to secure the release of the true killer. (Id.) Simon sues Defendant Ciolino, who Simon alleges was an adjunct professor hired as an investigator on the case by Northwestern, for malicious prosecution among other causes of action. (Id. at 30.)

         Northwestern University's Medill School of Journalism offers a course in investigative journalism. (Id. at 1.) Defendant Ciolino taught students enrolled in the course investigatory techniques. (Id. at 4.) Students, armed with their newly-acquired investigatory skills, conducted criminal investigations into wrongfully-convicted felons in the pursuit of exoneration. (Id. at 6.) The class was successful in securing the release of a number of wrongfully-convicted defendants. (Id. at 6.) Northwestern and the investigative journalism course were lauded for their work: each release of an incarcerated individual bestowed prestige and international media attention upon the school. (Id. at 6 & 9.)

         After a series of successful investigations, the investigative journalism class began investigating the case of Anthony Porter, a man convicted of a double-murder. (Id. at 10-11.) Defendant was hired as an investigator on the case 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. (Id. at 15.) Simon's complaint is rife with descriptions of investigatory practices that are deceptive at best; however, the veracity of these allegations is not before the court. What is relevant today is that at the conclusion of the investigation, Porter was exonerated and Plaintiff was convicted for the very same double-murder. (Id. at 23.) Simon subsequently served fifteen years in prison until the charges against him were vacated. (Id. at 25.) At the end of this truly unfortunate saga, two people were the victims of a murder committed by one man. Two different men served substantial amounts of time incarcerated for the same murders, although only one man committed the murder. Both men who served time were later released and effectively exonerated for the crime. It is truly difficult, almost to the point of impossibility, to find any silver lining in this set of circumstances.

         III. Procedural Background

         Defendant Ciolino issued a subpoena to IDOC for all non-privileged audio tapes of recorded phone calls between Alstory Simon and non-incarcerated individuals during the period of time in which he was incarcerated. While the subpoena commanded additional information, such as his mail and visitor logs, Simon moves to quash the subpoena only with respect to the recorded phone calls. (Mot. Quash Def. Ciolino's Subpoena, ECF No. 145 at 1.) Defendant surmises the recorded phone calls will reveal the allegations against him are false and thus, argues the recordings contain necessary evidence to defend the pending claims against him. (Def. Ciolino's Resp. Pl.'s Mot., ECF No. 173 at 2.) Simon contends that while he was incarcerated, his only method of speaking with loved ones was via phone calls on IDOC's monitored lines; he states that the release of these most intimate conversations would amount to a violation of his right to privacy. (Mot. Quash Def. Ciolino's Subpoena, ECF No. 145 at 3-4.) Plaintiff also states that some of these phone calls include conversations between him and his attorney's investigators that are protected by the attorney-client privilege. IDOC has not filed a motion to quash. (Id. at 4.)

         III. Legal Standard

         Under Federal Rule of Civil Procedure 45(a), a party may issue a subpoena to command production of documents or other tangible material in a person's possession or control. Fed.R.Civ.P. 45(a). A district court must quash or modify a subpoena that “(1) ‘fails to allow a reasonable time for compliance, ' (2) requires a nonparty to travel more than 100 miles, (3) ‘requires disclosure of privileged or other protected matter, if no exception or waiver applies, ' or (4) ‘subjects a person to undue burden.'” TCYK, LLC v. Doe, No. 13 C 3845, 2013 U.S. Dist. LEXIS 145722, at *5 (N.D. Ill. Oct. 9, 2013) (quoting Fed.R.Civ.P. 45(c)(3)(A)). In determining whether a subpoena “imposes an undue burden, the court asks whether the burden of compliance with [the subpoena] would exceed the benefit of production of the material sought by it.” The Bicycle Peddler, LLC v. Does 1-99, No 13 C 2375, 2013 WL 4080196, at *2 (Aug. 13, 2013) (quotations omitted). “As with other discovery issues, whether to grant a motion to quash is within the sound discretion of the district court.” Sullivan v. Gurtner Plumbing, Inc., No. 11 C 6261, 2012 WL 896159, at *1 (N.D. Ill. Mar. 13, 2012).

         A party has standing to quash a subpoena issued by another party to the litigation and directed to a non-party in two instances: if the movant has a claim of privilege attached to the information sought or the subpoena implicates the movant's privacy interests. Hard Drive Prods. v. Doe, No. 11 C 9062, 2012 U.S. Dist. LEXIS 82927, at *9 (N.D. Ill. June 14, 2012) (“Generally, a party lacks standing to quash a subpoena issued to a nonparty unless the party has a claim of privilege attached to the information sought or unless it implicates a party's privacy interest.”); Sunlust Pictures, LLC v. Does 1-75, No. 12 C 1545, 2012 WL 3717768 (N.D. Ill. Aug. 27, 2012). “Courts have found standing . . . even where the Movant's privacy interest is minimal at best.” HTG Capital Partners, LLC v. Doe, No. 15 C 02129, 2015 U.S. Dist. LEXIS 126358, at *9 (N.D. Ill. Sept. 22, 2015) (citing Sunlust Pictures, 2012 U.S. Dist. LEXIS 121368, at *2). The party seeking to quash the subpoena has the burden of demonstrating that the information or documents sought are either privileged or implicate a privacy interest. See Wauchop v. Domino's Pizza, Inc., 138 F.R.D. 539, 543 (N.D. Ind. 1991) (“The burden of persuasion in a motion to quash a subpoena . . . is borne by the movant.”)

         IV. ...


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