may have said about his arrest is relevant to his civil case.

The remainder of defendants’ argument appears to invoke other bases for discovery, but
really does nothing more than flesh out their relevance argument: “Patterson’s statements are
relevant for a host of other reasons as well. Among other things, they may be used for impeachment;
or fodder for cross-examination;? or lead to other admissible evidence; or possibly deemed an
admission under Fed. Rule.Evid. 801(d)(2).” If possible relevance were the standard for enforcing
the subpoenas, defendants would surely prevail. No one is arguing that the interview records do not
contain relevant statements by Patterson. Moreover, it is possible that Patterson said something
during those interviews that could be used to cross-examine him in the civil suit or be used as an
admission. Defendants are simply speculating, however, that the news organizations’ non-published
materials contain impeachment information or admissions. Defendants have apparently served these
subpoenas before questioning Patterson, by deposition or interrogatories, about his statements to the
news organizations or his conspiracy theory. Thus, defendants can establish relevance in its broadest
and weakest sense. They cannot establish that their subpoenas seek information they do not already
have or that is not readily available from other sources. Of course, the fact that what the defendants
seek is Patterson’s own statements adds something to the “mere relevance” of their requests.

Against these weak justifications, the burden on respondents is significant. Granted, simply
turning over the tapes from which their published materials were drawn does not represent a major
administrative burden. But requiring such production would establish that simply on the basis of a

showing of relevance (and merely possible usefulness, since there is no reason to believe that

3Again, defendants assert little more than different verbal formulations for the same
claim. There is not much difference between evidence useful for impeachment, fodder for cross-
examination and admissions of a party opponent.

4



Neither of those interests is operative in the present context.

In requiring the Reader to turn over Hobley’s letters but not its reporter Conroy’s notes of
his interview with Hobley, Judge Brown observed that Hobley’s letters were analogous to the tape
recordings ordered disclosed in McKevitt. This court agrees with Judge Brown that tape recordings
and letters have in common that the administrative burden involved in producing them is very
limited. Beyond that, however, the court disagrees with any implication in Judge Brown’s decision,
which did not involve audio or video recordings, that such recordings of a non-public interview by
a journalist are otherwise analogous to the letters ordered disclosed in Hobley. In many respects,
such recordings are much more like the reporter’s notes as to which Judge Brown quashed the
Hobley subpoena. They reflect the journalist’ s thought processes, his or her method of investigation,
and his or her choices about what should be published and what withheld. As Judge Brown observed
regarding the reporter’s notes in Hobley, “The only value of the notes to the Individual Defendants
is the possibility that they might reflect something that Hobley said to Conroy that might be helpful
to the Defendants.” Order of September 16 at 12. Moreover, Judge Brown observed, the notes are
the reporter’s confidential work product, as is the case with the recorded interviews sought here. Jd.
at 13. Granted, compelled disclosure of reporters’ notes is more invasive than the production of
recordings since, as Judge Brown observed, the reporter involved would almost certainly have to be
deposed to interpret the notes before any use could be made of them. But this court is of the view
that recordings of interviews are in almost all important ways much more like interview notes than
like unsolicited letters, and Judge Brown’s analysis, applied here, counsels strongly against

compelling disclosure.



12, 2001). That protection encompasses weighing the need for the material subpoenaed against the
burden involved in its production. Burden in this context means more than mere administrative
hardship. It encompasses the interests that enforced production would compromise or injure.
Northwestern Hospital, supra, at 928-29.

The justifications defendants have advanced for these subpoenas are meager, to say the least,
and consist largely of arguing repeatedly, albeit in different verbal formulations, that the materials
sought may contain relevant information. The defendants assert that the complaint alleges a
continuing conspiracy to injure Patterson emotionally, and point out that in his statements to
reporters, as well as in statements at his preliminary hearing, Patterson at times claimed that his 2004
arrest was part of that conspiracy. Defendants assert, “If plaintiff has made non-privileged
statements about this alleged conspiracy, surely defendants are entitled to production of these
statements so they can discover the basis for the claim.” Response at 5. Defendants, however,
suggest no basis for believing that there are statements other than those they already have and never
explain why, if they are curious about the basis for this claim, they have not served a contention
interrogatory asking for it. Further, defendants argue that because plaintiff may be claiming that the
arrest was part of the conspiracy alleged in his complaint, “it is crucial that defendants be permitted
access to statements made by Patterson to test his claims of conspiracy in this case.” Jd. This is
obviously the same justification set forth above but stated in more urgent terms. Finally, defendants
summarize their argument: “Given that the lawsuit contains a claim for an ongoing conspiracy to
inflict emotional distress, Patterson’s statements to the Journalists are absolutely relevant to this
case.” Jd. The essence of this perseverative argument, as far as the court understands it, is that

because Patterson has stated that his arrest relates to the allegations of his complaint, anything he


Patterson told the reporters anything in private that he has not said publicly), private parties in a civil
suit can call on the press to turn over the fruits of its investigative efforts. Since the press is involved
in collecting information about all manner of things and circumstances that frequently end up in
litigation, if there is no standard higher than mere relevance which civil lawyers must satisfy to help
themselves to reporters’ records, news organizations will be very busy responding to civil subpoenas.
Similarly, the news organizations’ efforts to maintain their independence and gain the trust of
sources is an interest that will be severely impaired if mere relevance, meaning as it does here a mere
relationship to the subject matter of a civil suit, makes their non-public records available on request.
Further, the journalistic and editorial judgments involved in deciding what to ask an interview
subject, and in deciding what to use from the material gathered, are the commercial and intellectual
stock in trade of the news organizations; surely some good justification should be advanced before
these journalistic and editorial judgments can be examined by outsiders and made public in the
context of a civil lawsuit. As Judge Brown stated in her September 16, 2004 ruling on the Chicago
Reader’s Motion to Quash Subpoena in Hobley v. Burge, No. 03 C 3678, Rule 45(c) explicitly
permits the court to protect against the disclosure of trade secrets and other confidential commercial
information, and “[t]here is nothing in the Federal Rules that suggests that research for the purpose
of news reporting [not to speak of editorial judgments about what should and should not be
published] is to be given Jess protection than research for the purpose of product development.”
(Order, p.13.)

In this case, where the subject matter of the civil suit raises issues of immense public
importance, the press’ efforts to shed light on the non-public recesses of certain police station

activities has value to the entire City. To the extent the news organizations’ resources are



Given the weak showing of materiality made by defendants, the lack of any compelling
public interest in disclosure such as was present in McKevitt and the significant burden on important
private and public interests compelled production in this case would involve, this court, pursuant to
the balancing of interests required by Rule 45(c), grants the news organizations’ Motion to Quash.

ENT ORD.

a ca
(onite States District Judge

DATED: January 5, 2005


Minute Order Form (06/97)

United States District Court, Northern District of Illinois

Name of Assigned Judge
or Magistrate Judge

Sitting Judge if Other

Joan B. Gottschall than Assited Judge

CASE NUMBER 03 C 4433 DATE 1/5/2005
CASE Patterson vs. Burge, et al.
TITLE
[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented. ]
tbe Motion to Quash Subpoena
DOCKET ENTRY:
(1) Oo Filed motion of [ use listing in “Motion” box above.]
(2) i) Brief in support of motion due __
(3) Oo Answer brief to motion due. . Reply to answer brief due.
(4) Oo Ruling/Hearing on set for at
(5) im) Status hearing[held/continued to] [set for/re-set for] on _ set for at.
(6) Oo Pretrial conference[held/continued to] [set for/re-set for] on set for at
(7) o Trial[set for/re-set for] on at
(8) Qa (Bench/Jury trial] [Hearing] held/continued to at
(9) a This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
DOFRCP4(m) CiLocal Rule 41.1 OFRCP41(a\(1) O FRCP41(a)(2).

(0) «xf [Other docket entry] Enter order. The motion by non-parties Chicago Tribune Company, WGN

Continental Broadcasting Company and WMAQ-TV to quash subpoenas directed to non-party journalists

[154-1] is granted.
al) ff {For further detail see order attached to the original minute order.]

No notices required, advised in open court,

No notices required.
S real number of notices,

Document
Number

Notices mailed by judge’s staff,

JAN 06 2008

date dockered,

Notified counsel by telephone.

X_ | Docketing to mail notices.

Mail AO 450 form.

Copy to judge/magistrate judge.

courtroom c "

deputy’s
initials

Date/time received in
central Clerk’s Office

mailing deputy initials



squandered providing information to civil litigants; or their ability to create sources hampered by
judicial insensitivity to the value of their attempts to protect the confidentiality of the information
they receive; or their motivation to develop their information and use it as they see fit; or the
commercial value to the involved news organizations of the judgments involved in investigating and
selecting material for publication dissipated as their “work product” becomes fair game for civil
litigants in their relentless quest to “discover” everything, the news organizations become the
indentured servant of the litigants, and their ability to do their important work will be severely
impaired. The kind of discovery requested here not only burdens the news organizations but burdens
the public interest in a robust press.

In McKevitt y. Pallasch, 339 F.3d 530 (7" Cir. 2003), the court affirmed an order of the
district court requiring news organizations to produce to plaintiff McKevitt tape recordings of an
interview conducted with David Rupert by journalists who were writing Rupert’s biography.
McKevitt was being prosecuted in Ireland for terrorism-related activities and wanted the tape
recordings to assist him in cross-examining Rupert, who was expected to be a key prosecution
witness. The Seventh Circuit found that there was no interest in confidentiality being compromised,
inasmuch as the source, Rupert, was known and had indicated that he did not object to disclosure.
In the case at bar, similarly, the interest in confidentiality is weak, since the source, Patterson, is
known. Further, his objection to disclosure is entitled to little weight if any weight at all inasmuch
as he is the plaintiff in this case and has no cognizable interest in the privacy of things he says to
third parties that bear, even tangentially, on the litigation. But the Seventh Circuit in McKevitt also
cited the important public obligation to assist in criminal proceedings and the federal interest in

cooperating in the criminal proceedings of friendly foreign nations as factors favoring disclosure.



IN THE UNITED STATES DISTRICT COURT D oi as)
FOR THE NORTHERN DISTRICT OF ILLINOIS JAN 6 6 2005

EASTERN DIVISION
Aaron Patterson, )
)
Plaintiff, )
) Case No. 03 C 4433

v. )

) Honorable Joan B. Gottschall
Former Chicago Police Lt. Jon Burge, et al. )
)
Defendants. )

Memorandum Opinion and Order

On August 5, 2004, plaintiff Aaron Patterson was arrested on federa] drug and weapons
charges. Patterson’s arrest and comments about it he made in interviews with a number of
journalists have been highly publicized. On October 18, 2004, defendants in this lawsuit served
subpoenas on various news organizations, specifically, the Chicago Tribune Company, WGN
Continental Broadcasting Company and WMAQ-TV (“the news organizations”) seeking all
videotape and audiotape footage, including outtakes, and any and all documents, including notes and
transcripts, reflecting statements made by Patterson between August 6, 2004 and August 19, 2004.!
The three news organizations have moved to quash the subpoenas, arguing that the subpoenas violate
the Illinois Reporter’s Privilege Act, the First Amendment to the United States Constitution and the
Illinois Constitution, and further require quashing or modification under Rule 45(c). In their
Response to the Motion to Quash, the defendants have withdrawn their request for notes, having

learned that there are sufficient video and audiotapes to render any interview notes cumulative. In

'This description generalizes the requests, although there were minor differences in the

requests to each of the news organizations.


addition, the court is under the impression that the news organizations have already made available
to the defendants all broadcast footage and published interviews. If that is not the case, such
materials should immediately be turned over since none of the arguments advanced by the subpoena
respondents justify the withholding of any previously-published materials?

In McKevitt v, Pallasch, 339 F.3d 530 (7" Cir, 2003), the Seventh Circuit stated that it could
find no basis, in law or fact, for recognizing a reporter’s privilege under federal or state law
cognizable in federal proceedings. Rather, it stated that instead of invoking a privilege, “courts
should simply make sure that a subpoena duces tecum directed to the media, like any other subpoena
duces tecum, is reasonable in the circumstances.” This court will therefore pretermit consideration
of the news organizations’ statutory and constitutional arguments and analyze the motion to quash
under the standards of Rule 45(c).

The Seventh Circuit has recently dealt with Rule 45(c) standards in Northwestern Memorial
Hospital y. Ashcroft, 362 F.3d 923 (7" Cir. 2004). Recognizing that “pretrial discovery is a fishing
expedition and one can’t know what one has caught until one fishes,” the court noted that when the
fish objects under Rule 45(c), the fisherman is called upon to justify his pursuit. 362 F.3d at 931.
In this circumstance, the court must engage in a balancing process, balancing the burden of
compliance against the benefits of the requested production. Jd. at 927. Put ina fish-free way, non~
parties are not treated exactly like parties in the discovery context, and the possibility of mere
relevance may not be enough; rather, non-parties are entitled to somewhat greater protection. See

Builders Ass'n of Greater Chicago v. City of Chicago, 2001 WL 664453 at *7 n. 4 (N.D. Ill. June

"If the parties cannot negotiate an agreement covering the costs of any such materials,
they can seek the assistance of the court.