United States District Court, N.D. Illinois, Eastern Division
M. Dow Jr. Judge
MEMORANDUM OPINION AND ORDER
David Weisman, United States Magistrate Judge
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.
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
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.
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. Mot. 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.
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
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.
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.)
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 (quoting Sec. 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)).
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
Mot. 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.
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