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Simon v. Northwestern University

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

May 5, 2017


          Judge, Robert M. Dow Jr.



         The 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Films (“WTF”), and its two owners Hale and Rech (hereinafter “the filmmakers”), commanding the production of certain unpublished materials[1] related to the production of the documentary Murder in the Park (“MIP”).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.

         I. Background

         Plaintiff 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.)

         At the 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.)

         Andrew 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[2] 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.)

         Production 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. at 30.)

         Production 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.)

         As 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 legal team.

         II. Discussion

         A. Illinois Reporter's Privilege

         The 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.

         A 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 ...

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