United States District Court, N.D. Illinois, Eastern Division
Robert M. Dow Jr.
MEMORANDUM OPINION AND ORDER
DAVID WEISMAN, UNITED STATES MAGISTRATE JUDGE
motion before the Court is Defendant's motion to compel.
Defendant Ciolino issued a subpoena to the documentary film
company Whole Truth Films (“WTF”), and its two
owners Hale and Rech (hereinafter “the
filmmakers”), commanding the production of certain
unpublished materials related to the production of the
documentary Murder in the Park (“MIP”).
The filmmakers refused to produce the subpoenaed materials on
the basis they are protected under the Illinois
Reporter's Privilege Statute. (Opp'n Ciolino's
Mot. Compel, ECF 170 at 1.) Defendant Ciolino now moves this
Court to compel the filmmakers to comply with the subpoena.
(Ciolino's Mot. Compel ¶ 1, ECF 150.) The parties
are well-acquainted with the facts of the case, but the Court
will review the most relevant facts for purposes of clarity.
maintains that Defendant Ciolino, Defendant Protess, and
Northwestern University conspired to frame him for a
double-murder he did not commit. (Compl., ECF No. 1.)
Plaintiff alleges that in the wake of prestige and notoriety
stemming from a series of highly successful wrongful
conviction investigations, a Northwestern investigative
journalism class set out to secure the release of Anthony
Porter, a man on Illinois' death row for double-murder,
in pursuit of yet another successful exoneration.
(Id.) Defendant Ciolino was an investigator who
worked on the case. To secure Porter's release, Plaintiff
alleges that Defendants needed an alternative suspect:
Plaintiff. (Id. ¶ 81.) Plaintiff contends that
during the investigation of the Porter/ Simon case,
Defendants inter alia, manufactured false evidence
and witness statements in order to secure the release of the
true killer and frame Simon for the very same crimes.
(Id. at ¶¶ 2-3.)
termination of Defendant's investigation, Porter was free
and Plaintiff was incarcerated for the same double-murders.
Plaintiff subsequently spent fifteen years in prison until
the charges were vacated by the Cook County State's
Attorney's Office. (Id. ¶ 124.)
Plaintiff's complaint is fraught with examples of
unethical investigatory techniques allegedly employed by
Defendant; but the veracity of those allegations is not at
issue for purposes of this motion. Significant to the Court
today, is that the production company, Whole Truth Films,
produced a documentary entitled Murder in the Park
that mirrors Plaintiff's allegations, i.e., that
with the support of Northwestern, Defendants Ciolino and
Protess framed Alstory Simon for murders he did not commit.
(Mot. Compel, ECF, ¶ 2, No. 150.)
Hale, one of Plaintiff's attorneys in this action, was an
executive producer on Murder in Park. Murder in
the Park tells the story about how Defendants created
false evidence against Simon to frame him for the
double-murders as part of a scheme to free Porter.
(See Mot. Compel, ¶¶ 2-3, ECF No. 150.)
The movie contains interviews from witnesses referenced in
Plaintiff's complaint as well as prison interviews with
Simon. (Id. ¶¶ 6-10.) During one interview
in particular, Simon accused Defendant Ciolino of forcing a
confession from him. (Id.)
for the documentary began in December of 2012, prior to
Plaintiff's release from prison. (Tr. Evid. Hr'g at
29, ECF No. 254.) At the evidentiary hearing before the
Court, Hale stated he originally chose to make a documentary
about Plaintiff's case because he thought it was
interesting that “two people claim[ed] they were
wrongfully convicted for the same crime.” (Id.
at 28.) His goal in producing the documentary was to inform
the public about Simon's case. (Id. at 28-29.)
Hale's role in the making the documentary included
reading case documents, coordinating and conducting witness
interviews, determining what footage to shoot, helping to
develop the story structure of the piece, and reviewing raw
footage. (Id. at 25-26, 125.) While Hale was working
on the documentary, he did not represent Simon and was
otherwise unaffiliated with the underlying legal proceedings
related to Simon's quest for exoneration. (Id.
of the film officially concluded in October of 2014, after
Plaintiff was released from prison. (Id. at 36-37.)
Hale states he joined Plaintiff's legal team within a
week of Plaintiff's release. (Id. at 37.)
Although production concluded, Hale still has access to the
raw film footage and can view it at any time. (Id.
at 115.) However, he has not provided any of the Murder
in the Park outtakes to Plaintiff or the other members
of Plaintiff's legal team. (WTF First Reply at 4, ECF No.
247.) He also states that he has not shared any
off-the-record information provided to him by his
confidential sources during his newsgathering for Murder
in the Park. (Id.)
stated above, Defendants issued a subpoena to the filmmakers
commanding the production of certain unpublished materials.
The filmmakers refused to produce the materials on the
grounds they are protected under the Illinois reporter's
privilege statute. The issue before the Court is whether Hale
waived the reporter's privilege by joining Simon's
Illinois Reporter's Privilege
Illinois reporter's privilege protects reporters from
being compelled to disclose their sources. 735 Ill. Comp.
Stat. 5/8-901. Pursuant to the Illinois Reporter's
Privilege Statute (hereinafter “Act” or
“Statute”), a court cannot “compel any
person to disclose the source of any information obtained by
a reporter” unless a court orders a divestiture of the
privileged source sought. Id. at 901 & 907.
reporter is any “person regularly engaged in the
business of collecting, writing or editing news through a
news medium on a full-time or part-time basis; and includes
any person who was a reporter at the time the information
sought was procured or obtained.” Id. at 902.
A source is the individual or means through which the
information was obtained. Id. The reporter holds the
reporter's privilege. People v. Pawlaczyk, 724
N.E.2d 901, 905 (Ill. 2000) (“[T]he privilege [is]
granted to reporters under the ...