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Simon v. Northwestern University

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

March 31, 2017


          Robert M. Dow Jr. Judge


          M. David Weisman, United States Magistrate Judge

         Pursuant 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.

         I. Background

         The 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 investigatory techniques.[1]

         In 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.

         Preib 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. 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 (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, 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.

         In 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 privilege.

         I. Procedural Posture

         As a 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.

         Pursuant 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.)

         “A 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)).

         Preib 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.

         Having 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 ...

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