I. Defamation actions

In Illinois, the test for divesting a reporter of the privilege under the Statute differs slightly when the request arises in the course of a lawsuit for libel or slander than when the request arises in other actions. For example, in libel or slander cases, only a plaintiff may apply to the court for an order seeking privileged information from a reporter. In contrast, any person or party, body or officer, may apply to the court in any other type of action. 735 ILCS 5/8-903(b) (2001). The chief difference lies in the proof the movant must adduce concerning any "public interest" at stake in the proceedings. In a libel or slander action, the movant must convince the court that the public's "need for disclosure of the information sought outweighs the public interest in protecting the confidentiality of sources of information used by a reporter." 735 ILCS 5/8-907(2). In all other actions, the movant must demonstrate that "disclosure of the information sought is essential only to the protection of the public interest involved." 735 ILCS 5/8-907(2).

For libel and slander actions involving an underlying claim of defamation, the Statute directs a party seeking access to privileged information to make a prima facie showing of defamation, and to demonstrate the necessity for disclosure of the privileged information. 735 ILCS 5/8-904. A libel or slander plaintiff must submit an application to the court that alleges falsity of the defamatory statements, and actual harm or injury due to the alleged defamation. The Seventh Circuit has stated in dicta that in cases where the plaintiff must prove actual malice, "ordinarily the reporter's privilege must give way to disclosure." Desai v. Hersh, 954 F.2d 1408 (7th Cir. 1992).

Another difference lies in the application of the "relevance" prong of the Statute. In all cases, Section 8-904 of the Statute requires the party seeking to divest the reporter of the privilege to demonstrate the relevancy of the privileged information to the "proceedings." 735 ILCS 5/8-904 (2001). Courts have interpreted the relevance standard more leniently in libel and slander cases because such privileged information is often the basis of the suit. For example, in People v. Pawlaczyk, 189 Ill. 2d 177, 194, 724 N.E.2d 901, 911 (2000), the court held that the identity of the defendants' source or sources was directly relevant to an element of the perjury charge against city officials: "If the privileged information will make any one the of the elements of perjury more or less probable, then it is relevant to the proceedings."