United States District Court, N.D. Illinois, Eastern Division
M. Dow Jr. Judge.
David Weisman United States Magistrate Judge.
March 31, 2017 the Court granted Martin Preib's motion to
intervene but denied his motion to quash Defendant Paul
Ciolino's subpoena for phone-call recordings made between
Preib and the Plaintiff while Plaintiff was incarcerated at
the Illinois Department of Corrections (hereinafter
“IDOC”). Preib now moves for reconsideration of
the Court's order as to the motion to quash. As explained
below, Preib's motion for reconsideration is denied.
facts are set forth in detail in the Court's March 31,
2017 order. See Simon v. Northwestern, No. 15 C
1433, 2017 WL 1197097 at *1 (N.D. Ill. Mar. 31, 2017). In
sum, Plaintiff contends he was wrongfully convicted of a
double-murder. He was freed after spending fifteen years in
prison for crimes he maintains he did not commit. While
Plaintiff was incarcerated, Martin Preib, a freelance
journalist and author of the blog Crooked City,
reported on Plaintiff's conviction. Most of Preib's
fact-gathering about Plaintiff's case was conducted
telephonically with Plaintiff over IDOC's recorded phone
lines. The culmination of Preib's research on
Plaintiff's conviction can be found in a lengthy article,
entitled, What's Wrong with the Wrongful Conviction
Movement? (hereinafter “Article”). Defendant
subpoenaed the IDOC phone recordings of all non-privileged
conversations between Plaintiff and others that IDOC has
maintained. IDOC has expressed no objection to the production
of these recordings. Preib subsequently moved to quash the
subpoena on the grounds that Preib's recordings with
Plaintiff are protected under the Illinois reporter's
privilege. 735 Ill. Comp. Stat. 5/8-901.
March 31, 2017, the Court denied Preib's motion to quash.
Under Illinois state statute, reporters have a qualified
privilege that prohibits courts from compelling reporters or
others to disclose a reporter's sources of information.
735 Ill. Comp. Stat. 5/8-901. The statutory privilege applies
when a court orders the disclosure of reporter's
source of information.
Court found that Preib's newsgathering activities for the
Article qualified him as a reporter but that the IDOC
recordings were not his source as defined by Illinois state
statute. Accordingly, the Court held that the reporter's
privilege was inapplicable.
there is not an explicit rule governing the standard for
motions to reconsider, “courts in this District have
construed motions to reconsider interlocutory orders . . . as
arising under Rule 54(b) in addition to the Court's
inherent authority and the common law.” Caine v.
Burge, 897 F.Supp.2d 714, 716 (N.D. Ill. 2012). A party
prevails on a motion to reconsider when:
(1) the court has patently misunderstood a party; (2) the
court has made a decision outside the adversarial issues
presented to the court by the parties; (3) the court has made
an error not of reasoning but of apprehension; (4) there has
been a controlling or significant change in the law since the
submission of the issue to the court; or (5) there has been a
controlling or significant change in the facts since the
submission of the issue to the court.
Goldman v. Gagnard, Case No. 11 C 8843, 2012 U.S.
Dist. LEXIS 87226, at * 6-7(N.D. Ill. June 21, 2012) (citing
Bank of Waunakee v. Rochester Cheese Sales, Inc.,
906 F.2d 1185, 1191 (7th Cir. 1990)). A motion for
reconsideration is within the sound discretion of this Court
and will be reversed only upon a showing of abuse of
discretion. Burge, 897 F.Supp.2d at 716. A motion
for reconsideration is not an opportunity for the movant
“to take a second bite at the apple or raise new
arguments that it did not make in the first instance.”
Gagnard, 2012 U.S. Dist. LEXIS 87226 at *7 (internal
quotations omitted). For the reasons set forth below, Preib
has failed to meet this standard.
argues that the Court should reconsider its order denying his
motion to quash for four reasons. (Mot. Recons. at 1, ECF No.
272) First, Preib argues that the Court ignored the plain
text of the Illinois Reporter's Privilege Act
(“Act” or “Statute”) by interpreting
it to only protect source material in the reporter's
possession. (Id. at 5 (“The Court's
interpretation of the Act has essentially added the
requirement to the Act that it only applies to materials
within a reporter's possession, a requirement not found
in the statute.”).) Preib misunderstands the
defines a reporter's source as the “person or means
from or through which the news or information was
obtained.” 735 Ill. Comp. Stat. 5/8-902. The issue
before the Court is whether IDOC's recordings of Preib
and the Plaintiff's phone conversations fall within that
definition. As an initial matter, the Court notes that as a
federal court ruling on Illinois state law, we must try to
determine how the Illinois Supreme Court would rule on the
issue in reaching our conclusion. See Kelley v.
Lempesis, No. 13 C 4922, 2015 U.S. Dist. LEXIS 107719,
at *6 (N.D. Ill. Aug. 17, 2015). “‘In making that
prediction, the decisions of the Illinois Appellate Court are
non-binding but persuasive ‘unless [the court ...