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Simon v. Northwestern University

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

June 20, 2017

ALSTORY SIMON, Plaintiff,
v.
NORTHWESTERN UNIVERSITY, DAVID PROTESS, PAUL J. CIOLINO, Defendants.

          Robert M. Dow Jr. Judge.

          ORDER

          M. David Weisman United States Magistrate Judge.

         On 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.

         I. Background

         The 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.

         On 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.

         The 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.

         II. Legal Standard

         Although 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.

         III. Discussion

         Preib 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 Court's opinion.

         The Act 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 ...


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