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7th Circuit

Reporters Privilege Compendium

Kenneth E. Kraus
Ken Kraus Law, LLC
215 Glen Hollow Road
Madison, Wisconsin 53705
ken@kenkrauslaw.com
312.420.7292

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I. Introduction: History & Background

Since the 2003 decision in McKevitt v. Pallasch, 339 F.3d 530 (7th Cir. 2003), the reporter's privilege, when a federal question provides jurisdiction, has been limited to cases involving confidential sources.  Some district courts have protected non-confidential material by following a reasonableness test applicable to subpoenas generally. Relying on any case decided before McKevitt is problematic. For the most part, federal courts have not adopted any special procedural rules concerning the quashing of a subpoena or the appellate process.  In diversity cases, the state shield law applies.  Wilson v. O’Brien, No. 07-cv-3994, 2009 U.S. Dist. LEXIS 22967, at *19 (N.D. Ill. Mar. 20, 2009).

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II. Authority for and source of the right

No reported cases discuss the reporters' privilege prior to Branzburg.

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A. Shield law statute

The state shield laws (applicable in federal court only in diversity cases):

  • Illinois: 735 ILCS 5/8-901
  • Indiana: Code. § 34-46-4-1
  • Wisconsin: Stat. § 885.14
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B. State constitutional provision

C. Federal constitutional provision

D. Other sources

III. Scope of protection

A. Generally

Despite some recent cases quashing subpoenas to the press under a traditional burden of production analysis, McKevitt v. Pallasch, 339 F.3d 530 (7th Cir. 2003), remains the law of the circuit, and there is no federal common law reporter's privilege, at least when the source is not confidential.

As Magistrate Judge Finnegan stated in Taylor v. City of Chicago, No. 14-cv-737, 2015 U.S. Dist. LEXIS 146954, at *5-7 (N.D. Ill. Oct. 29, 2015), despite the existence of the Illinois Reporter’s Privilege Statute, “the court declines” to recognize a federal reporter’s privilege.  She went on to deny a motion to quash using a burden analysis under Rule 45.

In McKevitt, a terrorism defendant in Ireland sought an order under 28 U.S.C. § 1782 compelling production of tape-recorded interviews for cross-examination of the chief prosecution witness. 339 F.3d at 531. The witness's identity was known and he did not object to production of the tapes, in the possession of journalists preparing a biography of the witness. Id. at 532. The court reviewed Branzburg and its progeny and rejected a special reporter's privilege. "It seems to us that rather than speaking of 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. We do not see why there need be special criteria merely because the possessor of the documents or other evidence sought is a journalist." Id. at 533. The court stated that when the source is not confidential, the First Amendment does not apply. Id. The court suggested that cases holding that the reporter's privilege applies to cases involving non-confidential sources "may be skating on thin ice." Id. at 532. And the court held that state-law privileges are not legally applicable in federal-question cases. Id.

The Seventh Circuit stated explicitly what it stated in so many words in McKevitt: "There isn't even a reporter's privilege in federal cases." United States Dep't of Educ. v. Nat'l Collegiate Athletic Ass'n, 481 F.3d 936, 938 (7th Cir. 2007). The court acknowledged that the news media's ability to conduct investigations would be enhanced if they were permitted to conceal the identity of their sources from the government. "But they are not." Id. at 938.  See also Beverly v. Watson, No. 14-cv-4970, 2016 U.S. Dist. LEXIS 87725, *18 (N.D. Ill. July 7, 2016) (Finnegan, J., Magistrate) (cases outside the Seventh Circuit may not be relied on; standard is “relative hardship”, or whether burden of production would outweigh benefit); Wilson v. O'Brien, 2009 U.S. Dist. LEXIS 22967, *19 (N.D. Ill. March 20, 2009) (no federal reporter’s privilege); Mosely v. City of Chicago, 252 F.R.D. 421, 427 (N.D. Ill. 2008) (in Seventh Circuit, subpoenas directed to journalists and media, like those to any non-party, need only be "reasonable in the circumstances").

To the extent that a privilege exists after McKevitt v. Pallasch, 339 F.3d 530 (7th Cir. 2003), it must be considered qualified and courts follow the balancing test set forth in McKevitt.

However, the lower courts have continued to consider the interests of the media in deciding whether to quash subpoenas or compel disclosure. See, e.g., Hobley v. Burge, 223 F.R.D. 499 (N.D. Ill. 2004): "[g]iven the important role that newsgathering plays in a free society, courts must be vigilant against attempts by civil litigants to turn non-party journalists or newspapers into their private discovery agents." Id. at 505.

Confidential sources have enjoyed some protection, under a traditional burden of production analysis.  See Davis v. City of Springfield, No. 04-3168, at *10 (C.D. Ill. April 1, 2009).

When diversity of citizenship is the basis for federal jurisdiction, courts undergo a standard Erie analysis and determine whether the application of state law would provide the "rule of decision." Desai v. Hersh, 954 F.2d 1408, 1411 (7th Cir. 1992). See also Solaia Technology, LLC v. Rockwell Automation, Inc., No. 03 C 6904, 2003 WL 22597611, at *3 (N.D. Ill. Nov. 10, 2003).

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B. Absolute or qualified privilege

To the extent that a privilege exists after McKevitt v. Pallasch, 339 F.3d 530 (7th Cir. 2003), it must be considered qualified and courts follow the balancing test set forth in McKevitt.

However, the lower courts have continued to consider the interests of the media in deciding whether to quash subpoenas or compel disclosure. See, e.g., Hobley v. Burge, 223 F.R.D. 499 (N.D. Ill. 2004). "Given the important role that newsgathering plays in a free society, courts must be vigilant against attempts by civil litigants to turn non-party journalists or newspapers into their private discovery agents." Id. at 505.

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C. Type of case

1. Civil

The balancing test announced in McKevitt applies in civil cases.  Beverly v. Watson, No. 14-cv-4970, 2016 U.S. Dist. LEXIS 87725, *18 (N.D. Ill. July 7, 2016); Taylor v. City of Chicago, No. 14-cv-737, 2015 U.S. Dist. LEXIS 146954, at *5-7 (N.D. Ill. Oct. 29, 2015); Davis v. City of Springfield, No. 04-3168, 2009 U.S. Dist. LEXIS 26806, at *10 (C.D. Ill. April 1, 2009); Mosely v. City of Chicago, 252 F.R.D. 421, 427 (N.D. Ill. 2008).  Bond v. Utreras, No. 04 C 2617, 2006 WL 1806387 (N.D. Ill. June 27, 2006); Hare v. Zitek, No. 02 C 3973, 2006 WL 2088427 (N.D. Ill. July 24, 2006); Patterson v. Burge, No. 03 C 4433, 2005 WL 43240 (N.D. Ill. Jan. 6, 2005); Hobley v. Burge, 223 F.R.D. 499 (N.D. Ill. 2004); Solaia Technology, LLC v. Rockwell Automation, Inc., No. 03 C 6904, 2003 WL 22597611 (N.D. Ill. Nov. 10, 2003).

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2. Criminal

The balancing test announced in McKevitt applies in criminal cases. See United States v. Hale, No. 03 CR 11, 2004 WL 1123796 (N.D. Ind. April 14, 2004). See also United States v. Lloyd, 71 F.3d 1256, 1262, 1269 (7th Cir. 1995) (upholding trial court's decision to quash defendant's trial subpoena of a Chicago Tribune reporter); United States v. Bingham, 765 F. Supp. 954, 956 (N.D. Ill. 1991) (upholding NBC's motion to quash subpoena for video outtakes but ordering NBC to produce transcripts of the outtakes); United States v. Lopez, No. 86 CR 513, 1987 WL 26051, at *1 (N.D. Ill. Nov. 30, 1987) (applying qualified reporters' privilege in criminal case and granting NBC's motion to quash).

In Bingham, the defendant sought from NBC outtakes from a videotaped interview of a key government witness. While NBC agreed to produce those portions of the tape that were previously broadcast, it refused to produce the outtakes. In balancing the parties' interests, the court considered the defendant's important Fifth Amendment right to a fair trial and his Sixth Amendment rights to compulsory process and effective confrontation of adverse witnesses. Bingham, 765 F. Supp. at 958. The court adopted a balancing approach used by other circuits in criminal cases. The court said that "[t]he rights of the party seeking disclosure override the reporters' First Amendment interests only upon a clear and specific showing that the information is highly relevant and material, necessary to the maintenance of a claim, and not obtainable from other available sources." The court held that the information was "highly relevant" and even "critical to the maintenance of the defense." Id. at 958-959. One issue not addressed by the court was whether either party had asked the court to make a transcript of the tapes. It appears the court turned the transcripts over to the defense sua sponte in an attempt to reach a middle ground. This should provide a note of caution to reporters producing videotapes for in camera inspection.

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3. Grand jury

No federal cases in the Seventh Circuit discussed whether the reporters' privilege applies to grand jury subpoenas.

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D. Information and/or identity of source

In Solaia Technology, LLC v. Rockwell Automation, Inc., No. 03 C 6904, 2003 WL 22597611 (N.D. Ill. Nov. 10, 2003), the court tentatively held that a subpoena served in an antitrust case should be quashed to the extent it sought the identity of the author of an anonymous letter published in a manufacturing industry magazine. Id. at *2. The court reserved ruling pending a related decision in another federal district court that may have resulted in the application of the Illinois statutory reporter's privilege. Id. at *3.

Pre-McKevitt rulings also have protected the source of the information. Neal v. City of Harvey, Illinois, 173 F.R.D. 231, 234 (N.D. Ill. 1997) (quashing subpoena seeking undisclosed sources partially because "names of sources are covered by the privilege"); Warnell v. Ford Motor Co., 183 F.R.D. 624, 626 (N.D. Ill 1998) (ordering that subpoenaed videotape be produced but that cameraman's voice be redacted in the event that news-gatherer argued cameraman was the source); Gulliver's Periodicals Ltd. v. Chas. Levy Circulating Co., 455 F. Supp. 1197, 1204 (N.D. Ill. 1978) (quashing subpoena because subpoena sought identity of sources who had given information upon promise that their identities would remain secret).

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E. Confidential and/or nonconfidential information

Despite the ruling in McKevitt, some courts have continued to scrutinize subpoenas to the press on the grounds of administrative burden and impact on the public’s right to know, albeit usually when a confidential source is at issue.  For example, in Davis v. City of Springfield, No. 04-3168, 2009 U.S. Dist. LEXIS 26806 at *10, (C.D. Ill. April 1, 2009), the court quashed a subpoena for the identity of a confidential source and related notes.  Significantly, it did not consider confidentiality alone to be dispositive, but identified it as one factor that clearly increases the burden of production on the press.  Id. at *12-13.

Other factors included the civil nature of the case and alternative sources of the information, although the court held that Rule 45 does not require the exhaustion of other sources. Id. at *13. The court found that the Seventh Circuit has deemed "obvious" the fact "that the newsgathering and reporting activities of the press are inhibited when a reporter cannot assure a confidential source of confidentiality.” Id. at *9 (citing McKevitt, 339 F.3d at 532).  Moreover, the court held, under the Seventh Circuit's decision in Northwestern Mem'l Hosp. v. Ashcroft, 362 F.3d 923 (7th Cir. 2004), a court may consider not only administrative hardship, but other public interests that may be compromised in enforcing a subpoena, such as the public value of a reporter’s ability to report on information relating to the operation of the police department.  Id. at *10.

In McKevitt v. Pallasch, 339 F.3d 530 (7th Cir. 2003), the reporter's privilege was limited to cases involving confidential sources, although some district courts have protected non-confidential material by following a reasonableness test applicable to subpoenas generally. The McKevitt court stated when the source is not confidential, the First Amendment does not apply. Id. at 533. The court suggested that cases holding that the reporter's privilege applies to cases involving non-confidential sources "may be skating on thin ice." Id. at 532.

“No federal common law privilege is available … because the information sought wasn’t derived from a confidential source.”  Longs v. Lebo, No. 7-cv-83 RM, 2009 U.S. Dist. LEXIS 25434, at *8 (N.D. Ind. March 24, 2009).

Pre-McKevitt rulings have emphasized the importance of protecting confidential sources. See Neal v. City of Harvey, Illinois, 173 F.R.D. 231, 233 (N.D. Ill. 1997) (protecting names of sources); Gulliver's Periodicals Ltd. v. Chas. Levy Circulating Co., 455 F. Supp. 1197, 1204 (quashing subpoena that sought identity of sources who had given information upon promise that their identities would remain secret).  Other than the Gulliver's Periodicals, Ltd. court, no other court has given a definition of "confidential" or distinguished between information obtained through a promise of confidentiality and information not obtained through such a promise.

Although non-confidential information has received less protection under a balancing test, lower courts continue to recognize the media's need for freedom from the harassment of subpoenas. In Hobley v. Burge, 223 F.R.D. 499 (N.D. Ill. 2004), a federal magistrate quashed a subpoena for reporter's notes of conversations with a civil rights plaintiff, because "[g]iven the important role that newsgathering plays in a free society, courts must be vigilant against attempts by civil litigants to turn non-party journalists or newspapers into their private discovery agents." Id. at 505 (internal citations omitted). The magistrate noted that "[n]othing in McKevitt suggests that a reporter's notes are discoverable in civil litigation simply because the reporter interviewed a party to that litigation." Id. The magistrate stated that research for news articles should be treated like proprietary business information that is protected by Fed. R. Civ. P. 45(c)(3)(B)(i). Id. The magistrate did order production of letters sent by the plaintiff to the reporter because the reporter did not establish that they were sent under an agreement to keep them confidential. Id. at 503-04.

Similarly, in Patterson v. Burge, No. 03 C 4433, 2005 WL 43240 (N.D. Ill. Jan. 6, 2005), the court quashed the civil rights defendants' subpoena for videotape outtakes reflecting statements by the plaintiff because the defendants had not shown more than mere relevance. Id. at *3. The court held that the press would become "indentured servants" and suffer a loss of independence if forced to respond to subpoenas for non-public records without a showing materiality and that they do not have the information sought and it is not available from other sources. Id. at *2 - *3. The court discussed several justifications for protecting journalists from subpoenas, including time spent responding, revelation of journalistic and editorial judgments, their ability to create sources and a public interest in a robust press. Id. at *3. The court held that videotapes that reflect a journalist's thought processes should be protected like reporter's notes, even if the burden to produce them is not great. Id. at *4.

The court protected non-confidential material in Bond v. Utreras, No. 04 C 2617, 2006 WL 1806387 (N.D. Ill. June 27, 2006). A federal magistrate held that civil rights defendants could not force a reporter to disclose interview notes or answer questions in a deposition about interviews of residents of a public housing project he was reporting on. Id. at *6 - *7. However, the magistrate did order the reporter to answer questions about his interviews with the plaintiff, because the plaintiff had no legitimate expectation of privacy in those discussions. Id. at *7. The magistrate held that to establish a right to the notes and testimony, the defendants would have to show that the evidence is highly probative of issues relevant to the case and that they don't have or is otherwise unavailable to them. Id. at *6. In a later ruling on a motion for reconsideration, the magistrate held that the reporter's deep involvement in the case, including helping the plaintiff find an attorney, meant he could not expect to shield his notes of interviews with her and conversations with her. Bond v. Utreras, No. 04 C 2617, 2006 WL 2494759, at *2 (N.D. Ill. August 23, 2006).

In a like manner, in Hare v. Zitek, No. 02 C 3973, 2006 WL 2088427 (N.D. Ill. July 24, 2006), a federal magistrate held that despite the absence of a federal reporter's privilege in the 7th Circuit, civil rights defendants could not force a reporter to answer questions about her sources unless they can show a real need for the information and that it is not available from another source. Id. at *4.

See also the pre-McKevitt cases of Warnell v. Ford Motor Co., 183 F.R.D. 624, 625 (N.D. Ill 1998) (refusing to quash subpoena for videotapes, but conducting balancing test and considering non-confidential nature of information); United States v. Bingham, 765 F. Supp. 954, 956 (N.D. Ill. 1991) (upholding NBC's motion to quash subpoena for video outtakes but ordering NBC to produce transcripts of non-confidential outtakes).

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F. Published and/or non-published material

Information that has not been published is afforded more protection than information that has been published.

In Bond v. Utreras, No. 04 C 2617, 2006 WL 1806387 (N.D. Ill. June 27, 2006), a federal magistrate held that civil rights defendants could not force a reporter to disclose interview notes or answer questions in a deposition about interviews of residents of a public housing project he was reporting on. Id. at *6 - *7. However, the magistrate did order the reporter to answer questions about his interviews with the plaintiff, because the plaintiff had no legitimate expectation of privacy in those discussions. Id. at *7. The magistrate held that to establish a right to the notes and testimony, the defendants would have to show that the evidence is highly probative of issues relevant to the case and that they don't have the evidence or is it otherwise unavailable to them. Id. at *6. In a later ruling on a motion for reconsideration, the magistrate held that the reporter's deep involvement in the case, including helping the plaintiff find an attorney, meant he could not expect to shield his notes of interviews with her and conversations with her. Bond v. Utreras, No. 04 C 2617, 2006 WL 2494759, at *2 (N.D. Ill. August 23, 2006).

In Patterson v. Burge, No. 03 C 4433, 2005 WL 43240 (N.D. Ill. Jan. 6, 2005), the court quashed the civil rights defendants' subpoena for videotape outtakes reflecting statements by the plaintiff because the defendants had not shown more than mere relevance. Id. at *3. The court held that the press would become "indentured servants" and suffer a loss of independence if forced to respond to subpoenas for non-public records without a showing materiality and that they do not have the information sought and it is not available from other sources. Id. at *2 - *3. The court discussed several justifications for protecting journalists from subpoenas, including time spent responding, revelation of journalistic and editorial judgments, their ability to create sources and a public interest in a robust press. Id. at *3. The court held that videotapes that reflect a journalist's thought processes should be protected like reporter's notes, even if the burden to produce them is not great. Id. at *4.

In Hobley v. Burge, 223 F.R.D. 499 (N.D. Ill. 2004), a federal magistrate quashed a subpoena for reporter's notes of conversations with a civil rights plaintiff, because "[g]iven the important role that newsgathering plays in a free society, courts must be vigilant against attempts by civil litigants to turn non-party journalists or newspapers into their private discovery agents." Id. at 505 (internal citations omitted). The magistrate noted that "[n]othing in McKevitt suggests that a reporter's notes are discoverable in civil litigation simply because the reporter interviewed a party to that litigation." Id. The magistrate stated that research for news articles should be treated like proprietary business information that is protected by Fed. R. Civ. P. 45(c)(3)(B)(i). Id. The magistrate did order production of letters sent by the plaintiff to the reporter because the reporter did not establish that they were sent under an agreement to keep them confidential. Id. at 503-04.

See also these Pre-McKevitt cases: May v. Collins, 122 F.R.D 535, 540 (S.D. Ind. 1988) ("journalists possess a qualified privilege . . . not to disclose unpublished information which was in their possession gathered as a result of the newsgathering process"); United States v. Bingham, 765 F. Supp. 954, 956 (N.D. Ill. 1991) (quashing subpoena for outtakes which did not air, but providing transcript to partying seeking outtakes).

In Thayer v. Chiczewski, 257 F.R.D. 466, 471 (N.D. Ill. 2009) the court quashed part of a subpoena for a reporter’s personal obeservations, but ordered him to produce video footage of anti-war demonstrations.  Id. at 470-71.  The court rejected the argument that the reporter "can provide a unique and valuable perspective" on the protest at which the plaintiff was arrested, leading to the civil rights claims at issue. The Court agreed that the reporter’s "perspective" had no bearing on or relevance to substantive issues in this case.  It limited his deposition to authentication of the relevant video evidence and documents produced.  Id.

In United States v. Hale, No. 03 CR 11, 2004 WL 1123796 (N.D. Ind. April 14, 2004), a federal magistrate denied a motion to quash a subpoena to a reporter to appear at the trial of a criminal defendant he had interviewed. Id. at *2 - *3. The court rejected the argument that a videotape of the reporter interviewing the defendant was an adequate substitute for the reporter's trial testimony. The reporter "was in a unique position, as the interviewer, to observe [the defendant's] demeanor during the interview. The government is under no obligation to forego some evidence from a credible source merely because other sources also may testify to the same matters." Id. at *1. The magistrate held the reporter did not show the government was seeking any confidential material. Id. at * 2.

Similarly, a district court, in a pre-McKevitt case, held that the privilege does not apply to journalists' personal observations. Alexander v. Chicago Park District, 548 F. Supp. 277, 278 (N.D. Ill. 1982) (refusing to recognize the privilege and stating "[a] reporter's observations of a public place or event are no different than that of other individuals; and as to this, they are not entitled to constitutional protection").

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G. Reporter's personal observations

In Thayer v. Chiczewski, 257 F.R.D. 466, 471 (N.D. Ill. 2009) the court quashed part of a subpoena for a reporter’s personal obeservations, but ordered him to produce video footage of anti-war demonstrations.  Id. at 470-71.  The court rejected the argument that the reporter "can provide a unique and valuable perspective" on the protest at which the plaintiff was arrested, leading to the civil rights claims at issue. The Court agreed that the reporter’s "perspective" had no bearing on or relevance to substantive issues in this case.  It limited his deposition to authentication of the relevant video evidence and documents produced.  Id.

In United States v. Hale, No. 03 CR 11, 2004 WL 1123796 (N.D. Ind. April 14, 2004), a federal magistrate denied a motion to quash a subpoena to a reporter to appear at the trial of a criminal defendant he had interviewed. Id. at *2 - *3. The court rejected the argument that a videotape of the reporter interviewing the defendant was an adequate substitute for the reporter's trial testimony. The reporter "was in a unique position, as the interviewer, to observe [the defendant's] demeanor during the interview. The government is under no obligation to forego some evidence from a credible source merely because other sources also may testify to the same matters." Id. at *1. The magistrate held the reporter did not show the government was seeking any confidential material. Id. at * 2.

Similarly, a district court, in a pre-McKevitt case, held that the privilege does not apply to journalists' personal observations. Alexander v. Chicago Park District, 548 F. Supp. 277, 278 (N.D. Ill. 1982) (refusing to recognize the privilege and stating "[a] reporter's observations of a public place or event are no different than that of other individuals; and as to this, they are not entitled to constitutional protection").

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H. Media as a party

No federal cases in the Seventh Circuit discussed how the reporters' privilege was affected if the media was a party to the action other than Desai v. Hersh, 954 F.2d 1408 (7th Cir. 1992), in which the libel plaintiff had to prove actual malice and the reporter's privilege did not apply.

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I. Defamation actions

In defamation actions in which the plaintiff must demonstrate the defendant's malice, the reporters' privilege cannot be invoked. In Desai v. Hersh, 954 F.2d 1408 (7th Cir. 1992), the former Prime Minister of India brought a defamation action against Seymour Hersh. During the dispute, the plaintiff sought the identities of Hersh's sources for his book. When Hersh did not respond, plaintiff sought an order precluding the author from referring to his unidentified sources. In denying the plaintiff's motion, the trial court relied on the Illinois Reporter’s Privilege Law. On appeal, the Court of Appeals held that the trial court had committed error by treating the privilege as absolute. Id. at 1412. The court said that the district court eliminated the plaintiff's ability to test the reliability or existence of the author's unnamed sources. See also Liebhard v. Square D Co., No. 91 C 1103, 1992 WL 193558, at *3 (N.D. Ill. August 4, 1992) (agreeing, in dicta, with Desai).

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IV. Who is covered

A. Statutory and case law definitions

1. Traditional news gatherers

a. Reporter

Outside of Illinois's statutory definition, there appears to be no further discussion of what qualifies a person as a reporter for purposes of invoking the reporter's privilege. However, at least one court has declined an invitation to limit the definition of reporter to that of a newspaper reporter. See Desai v. Hersh, 954 F.2d 1408, 1412 n.3 (7th Cir. 1992) (finding the reporter's privilege applicable to book author under Illinois' statutory definition of reporter). Also instructive is Builders Assoc. of Greater Chicago v. County of Cook, No. 96 C 1121, 1998 WL 111702 (N.D. Ill. Mar. 12, 1998). In Builders, the Chicago Urban League moved to quash a subpoena that sought documents from one of its studies regarding racial and gender discrimination in the construction industry. The subpoenaing party argued that the Urban League was not entitled to the protections of the reporter's privilege since it was an advocacy group that conducts interviews and surveys for governmental entities in order to validate legislation. Thus, it was not a "reporter." The court disagreed and refused to apply the privilege to some groups that disseminate information but not to others. Builders, 1998 WL 111702, at *4-5 (holding "information gathered for political purposes is not outside the protections of the privilege if it was gathered with the intent to disseminate the information to the public").

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b. Editor

There is no statutory or case law addressing this issue.

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c. News

What constitutes "news" has yet to be specifically defined in the Seventh Circuit, however, it appears for purposes of invoking the reporter's privilege news can include information gathered for political purposes. See Builders Assoc. of Greater Chicago v. County of Cook, No. 96 C 1121, 1998 WL 111702, at *4-5 (N.D. Ill. Mar. 12, 1998).There is no statutory or case law addressing this issue.

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d. Photo journalist

There is no statutory or case law addressing this issue.

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e. News organization/medium

In a diversity case in which Illinois law applied, a freelance journalist was entitled to invoke the reporter’s privilege.  Simon v. Northwestern Univ., No. 15-cv-1433, 2017 U.S. Dist. LEXIS 94509 at *3 (N.D. Ill. June 20, 2017).

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2. Others, including non-traditional news gatherers

The Seventh Circuit, before McKevitt, applied the reporter's privilege for "non-traditional" news gatherers such as authors and political advocacy groups. See Desai v. Hersh, 954 F.2d 1408, 1412 n. 3 (7th Cir. 1992) (finding the reporter's privilege applicable to book author under Illinois' statutory definition of reporter); Builders Assoc. of Greater Chicago v. County of Cook, No. 96 C 1121, 1998 WL 111702 (N.D. Ill. Mar. 12, 1998) (holding advocacy group's information gathering for political purposes not outside the protections of the privilege if it was gathered with the intent to disseminate the information to the public).There is no statutory or case law addressing this issue.

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B. Whose privilege is it?

There is no statutory or case law addressing this issue.

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V. Procedures for issuing and contesting subpoenas

A. What subpoena server must do

1. Service of subpoena, time

There are no special requirements concerning a member of the news media. The normal procedures under Federal Rule of Civil Procedure 45 or Federal Rule of Criminal Procedure 17 would apply. There are no Seventh Circuit Rules or Local Rules that apply.

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2. Deposit of security

There are no special requirements concerning a member of the news media and security deposits. The normal procedures under Federal Rule of Civil Procedure 45 or Federal Rule of Criminal Procedure 17 would apply. There are no Seventh Circuit Rules or Local Rules that apply.

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3. Filing of affidavit

There are no special requirements concerning a member of the news media and the filing of affidavits. The normal procedures under Federal Rule of Civil Procedure 45 or Federal Rule of Criminal Procedure 17 would apply. There are no Seventh Circuit Rules or Local Rules that apply.

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4. Judicial approval

There are no special requirements concerning a member of the news media and judicial approval. The normal procedures under Federal Rule of Civil Procedure 45 or Federal Rule of Criminal Procedure 17 would apply. There are no Seventh Circuit Rules or Local Rules that apply.

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5. Service of police or other administrative subpoenas

There are no special requirements concerning police or administrative subpoenas.

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B. How to Quash

1. Contact other party first

A motion to quash will probably be treated as any other discovery dispute. Often parties are required to first attempt to solve discovery disputes prior to filing motions. The Federal Rules of Civil Procedure (Rule 37) and local rules (Local Rule 37.2 of the Northern District of Illinois, for example) require each discovery motion to include a statement that the parties made good faith attempts reach an agreement. See also Deitchman v. E.R. Squibb & Sons, Inc. 740 F.2d 556, 560 (7th Cir. 1984) (discovery request constitutes "opening of discussion" between party seeking information and party with information).  As a result, we recommend contacting the subpoenaing party before moving to quash.

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2. Filing an objection or a notice of intent

We would recommend filing a notice of intent and appropriate notice of motion. Courts have disapproved any attempt to quash a subpoena ex parte.  Reinders Brothers, Inc. v. Rain Bird Eastern Sales Corp., 627 F.2d 44, 51-52 (7th Cir. 1980). As reporters will often be non-parties, they should seek leave to file before actually filing their motion to quash. Some local rules require a non-party to seek leave from the court before filing a motion. Northern District of Illinois Local Rules 5.3 and 5.6.

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3. File a motion to quash

a. Which court?

A motion to quash a subpoena must be filed in the court that issued the subpoena. Kearney for Ruppert v. Alliant Energy Cash Balance Pension Plan (In re Wis. Energy Corp.), 2010 U.S. Dist. LEXIS 14314, at *2 (E.D. Wis. Feb. 18, 2010).  Kearney v. Jandernoa, 172 F.R.D. 381, 383-384 n. 4 (N.D. Ill. 1997); Lieberman v. American Dietetic Assoc., No. 94 C 5353, 1995 WL 250414 at *1 (N.D. Ill April 25, 1995) (denying motion to quash subpoena issued by California federal court and holding that California federal court must determine whether the subpoena should be quashed on the grounds of the California's statute on the reporters' privilege). But see In Re Factor VIII or IX Concentrate Blood Products Litigation, 174 F.R.D. 412 (N.D. Ill. 1997) (under rules on multi-district litigation, transferee court has power to compel compliance with a subpoena issued by transferor district court).

While a motion to quash must be filed in the issuing court, a protective order can be filed in the court hearing the underlying litigation. In Kearney, 172 F.R.D. at 383-384, the plaintiff in a case pending in the Western District of Michigan served a subpoena upon a non-party in Illinois. The subpoena was issued by the U.S. District Court for the Northern District of Illinois. The Illinois witness sought to quash the subpoena in the Illinois federal court and to transfer all issues related to the plaintiff's discovery request to the Michigan federal court. The Illinois federal court pointed out that the Seventh Circuit has held that motions cannot be transferred. Instead, the Illinois federal court stayed its own proceedings upon the understanding that the Illinois party would file its motion in the Michigan federal court. The Illinois federal court indicated that it would vacate its stay and issue a ruling not inconsistent with the Michigan court's rulings. While the Illinois court refused to transfer the motion back to the court overseeing the underlying litigation, it is clear that the court believed that the protective order should have been filed in the Michigan court. Furthermore, even though the court stated that motions to quash subpoenas "must be filed and decided in the court from which the subpoena issued," it stayed the motion to quash in deference to the Michigan's court's ruling on the protective over.

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b. Motion to compel

A media party should consider the likelihood of a motion to compel in deciding when to move to quash. Under Fed. R. Civ. P. 37(a)(4)(A) costs, attorneys' fees and sanctions can be awarded against the losing party on a motion to compel. See also Rickels v. City of South Bend, 33 F.3d 785, 786-88 (7th Cir. 1994) (losers in discovery disputes pay for costs and fees as a matter of course). The lack of clear precedent on the privilege in the Seventh Circuit must also be considered. Warzon v. Drew, 155 F.R.D. 183, 187 (E.D. Wis. 1994) (refusing to award costs to media party despite the fact that subpoena was quashed).

Under the rules and the general approach of the federal courts in the Seventh Circuit, the motion to quash should be filed as promptly as possible. NLFC, Inc. v. DevCom Mid-America, Inc., No. 93 C 0609, 1994 WL 188478 (N.D. Ill. May 11, 1994) (pointing out that motion must be brought before time of compliance).

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c. Timing

Under the rules and the general approach of the federal courts in the Seventh Circuit, the motion to quash should be filed as promptly as possible. NLFC, Inc. v. DevCom Mid-America, Inc., No. 93 C 0609, 1994 WL 188478 (N.D. Ill. May 11, 1994) (pointing out that motion must be brought before time of compliance).

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d. Language

There is no statutory or case law addressing this issue.

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e. Additional material

There is no statutory or case law addressing this issue.

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4. In camera review

a. Necessity

No cases suggest that an in camera review is required. Such decisions are left to the discretion of the trial court. United States v. Phillips, 854 F.2d 273, 277 (7th Cir. 1988). Nevertheless, many districts courts have engaged in such reviews. United States v. Bingham, 765 F. Supp. 954, 956 (N.D. Ill. 1991) (in camera review of video outtakes for purposes of reporters' privilege); Warnell v. Ford Motor Co., 183 F.R.D. 624, 625 (N.D. Ill. 1998) (in camera review of videotape for purposes of reporters' privilege).  See also Webb v. CBS Broad., Inc., 2011 U.S. Dist. LEXIS 3458, at *32 (N.D. Ill Jan. 13, 2011) (in camera review of reporter’s notes to determine scope of discovery).

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There is no statutory or case law addressing this issue.There is no statutory or case law addressing this issue.

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c. Consequences of refusing

There is no statutory or case law addressing this issue.

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5. Briefing schedule

There are no special rules for briefing schedules concerning motions to quash subpoenas.

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6. Amicus briefs

There are no special rules regarding amicus briefs and motions to quash subpoenas.

Courts in the Seventh Circuit employ a “relative hardship” standard in determining whether to quash a subpoena.  Beverly v. Watson, No. 14-cv-4970, 2016 U.S. Dist. LEXIS 87725, *18 (N.D. Ill. July 7, 2016) (Finnegan, Mag.) (standard is “relative hardship” or whether burden of production would outweigh benefit); Wilson v. O'Brien, 2009 U.S. Dist. LEXIS 22967, *19, 2009 WL 763785 (“reasonable under the circumstances”); Mosely v. City of Chicago, 252 F.R.D. 421, 427 (N.D. Ill. 2008) (in Seventh Circuit, subpoenas directed to journalists and media, like those to any non-party, need only be "reasonable in the circumstances”). A subpoenaing party seeking to compel the disclosure of information from a journalist gathered in the course of newsgathering must show that the evidence is highly probative of issues relevant to the case and that it does not have the evidence, or it is otherwise unavailable to them. Bond v. Utreras, No. 04 C 2617, 2006 WL 1806387 at *6, (N.D. Ill. June 27, 2006).  In Patterson v. Burge, No. 03 C 4433, 2005 WL 43240 (N.D. Ill. Jan. 6, 2005), the court held the party enforcing a subpoena must showing materiality and that they do not have the information sought and it is not available from other sources. Id. at *2 - *3. See also Neal v. City of Harvey, Ill., 173 F.R.D. 231, 233 (N.D. Ill. 1993) (subpoenaing party must show: "(1) that the information is not available from a non-journalistic source; and (2) that it is highly relevant and material to the case at bar."). See Builders Assoc. of Greater Chicago v. County of Cook, No. 96 C 1121, 1998 WL 111702, at *5 (N.D. Ill. Mar. 12, 1998).

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VI. Substantive law on contesting subpoenas

A. Burden, standard of proof

Courts in the Seventh Circuit employ a “relative hardship” standard in determining whether to quash a subpoena.  Beverly v. Watson, No. 14-cv-4970, 2016 U.S. Dist. LEXIS 87725, *18 (N.D. Ill. July 7, 2016) (Finnegan, Mag.) (standard is “relative hardship” or whether burden of production would outweigh benefit); Wilson v. O'Brien, 2009 U.S. Dist. LEXIS 22967, *19, 2009 WL 763785 (“reasonable under the circumstances”); Mosely v. City of Chicago, 252 F.R.D. 421, 427 (N.D. Ill. 2008) (in Seventh Circuit, subpoenas directed to journalists and media, like those to any non-party, need only be "reasonable in the circumstances”). A subpoenaing party seeking to compel the disclosure of information from a journalist gathered in the course of newsgathering must show that the evidence is highly probative of issues relevant to the case and that it does not have the evidence, or it is otherwise unavailable to them. Bond v. Utreras, No. 04 C 2617, 2006 WL 1806387 at *6, (N.D. Ill. June 27, 2006).  In Patterson v. Burge, No. 03 C 4433, 2005 WL 43240 (N.D. Ill. Jan. 6, 2005), the court held the party enforcing a subpoena must showing materiality and that they do not have the information sought and it is not available from other sources. Id. at *2 - *3. See also Neal v. City of Harvey, Ill., 173 F.R.D. 231, 233 (N.D. Ill. 1993) (subpoenaing party must show: "(1) that the information is not available from a non-journalistic source; and (2) that it is highly relevant and material to the case at bar."). See Builders Assoc. of Greater Chicago v. County of Cook, No. 96 C 1121, 1998 WL 111702, at *5 (N.D. Ill. Mar. 12, 1998).

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B. Elements

1. Relevance of material to case at bar

A subpoenaing party seeking to compel the disclosure of information from a journalist gathered in the course of newsgathering must show that the evidence is highly probative of issues relevant to the case and that it does not have the evidence and it otherwise unavailable to them. Bond v. Utreras, No. 04 C 2617, 2006 WL 1806387 at *6, (N.D. Ill. June 27, 2006). In Patterson v. Burge, No. 03 C 4433, 2005 WL 43240 (N.D. Ill. Jan. 6, 2005), the court held the party enforcing a subpoena must showing materiality and that it does not have the information sought and it is not available from other sources. Id. at *2 - *3.

The subpoenaing party must show that the material sought is "highly relevant" and be specific in its demonstration. "Highly relevant" means that the information sought goes to the heart or is crucial to the claims made by the discovering party. See Neal v. City of Harvey, Ill., 173 F.R.D. 231, 233-34 (N.D. Ill. 1993). Additionally, it is insufficient to merely allege potential relevance. Rather, there must be a showing of actual relevance. Id.; see e.g. U.S. v. Jennings, No. 97 CR 765, 1999 WL 438984 (N.D. Ill. June 21, 1999) (finding writer's non-confidential information surrounding interview of defendant's co-defendant discoverable where the information sought was relevant to establishing co-defendant's motive to testify); Warnell v. Ford Motor Co., 183 F.R.D. 624 (N.D. Ill. 1998) (qualified reporter's privilege would not prohibit the discovery of NBC videotape where videotape was relevant to plaintiffs' claims); compare U.S. v. Lloyd, 71 F.3d 1256, 1268-69 (7th Cir. 1995) (finding that newspaper article in which an unnamed officer stated a "lottery" existed on how long defendant would live was collateral to defendant's defense of police bias when defendant could not establish that the arresting officer was the officer quoted in the article). U.S. v. Lopez, No. 86 CR 513, 1987 WL 26051 (N.D. Ill. Nov. 30, 1987) (criminal defendant denied outtakes of a television interview when there was no showing of why the outtakes were relevant in helping the defendant explain the previously aired interview).

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2. Material unavailable from other sources

Exhaustion of other sources is not required, Davis v. City of Springfield, No. 04-3168, 2009 U.S. Dist. LEXIS 26806, at *13 (C.D. Ill. April 1, 2009).  Earlier cases have held that a subpoenaing party must show that that it does not have the information and it is otherwise unavailable to them. Bond v. Utreras, No. 04 C 2617, 2006 WL 1806387 at *6, (N.D. Ill. June 27, 2006). In Patterson v. Burge, No. 03 C 4433, 2005 WL 43240 (N.D. Ill. Jan. 6, 2005), the court held the party enforcing a subpoena must show it does not have the information sought and it is not available from other sources. Id. at *2 - *3. One court held the subpoenaing party must demonstrate that the information sought is not available from a non-journalistic source. See Neal v. City of Harvey, Ill., 173 F.R.D. 231, 233 (N.D. Ill. 1993). Another court ruled it will order the disclosure of the reporter's source only when the subpoenaing party shows that every reasonable alternative source for that information has been exhausted. See Warzon v. Drew, 155 F.R.D. 183, 187 (E.D. Wis. 1994).

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a. How exhaustive must search be?

Without ever defining what constitutes an "exhaustive" search, the court will generally not compel discovery unless it has been shown the information sought is unavailable from a non- journalistic source. For example, in Neal v. City of Harvey, Ill., 173 F.R.D. 231, 233-34 (N.D. Ill. 1993), plaintiff filed a Section 1983 civil rights lawsuit against various public officials for his arrest in connection with the shooting of a police officer. Defendant David Johnson sought to depose a television reporter to explore his knowledge of the statements made by Johnson and his co-defendant. In quashing the subpoena, the court found that Johnson failed to satisfy his burden to show the information he sought was unavailable from a non-journalistic source. Specifically, the court found that Johnson knew or should have known what he had or had not said to the press. If Johnson was concerned about the statements of his co-defendant or the plaintiff, Johnson was free to depose either of them. Therefore, Johnson's subpoena was quashed. See also Warzon v. Drew, 155 F.R.D. 183, 187 (E.D. Wis. 1994) (subpoena to newspaper reporter quashed when plaintiff in wrongful termination suit over her firing following her adverse commentary on county health plan could have discovered same information from a consultant to county or through public records; thus, plaintiff had not exhausted all non-journalistic sources); U.S. v. Lopez, No. 86 CR 513, 1987 WL 26051 (N.D. Ill. Nov. 30, 1987) (subpoenaing party failed to exhaust alternative non-journalistic sources where interview outtakes were sought from NBC interview where subpoenaing party was one of the interviewees).

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b. What proof of search does a subpoenaing party need to make?

There is no statutory or case law addressing this issue.

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c. Source is an eyewitness to a crime

There is no statutory or case law addressing this issue.

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3. Balancing of interests

Some of the considerations that should be considered in assessing a newsgatherer's claim of privilege include: the nature of the case, the relevance and materiality of the information sought, whether the information sought lies at the heart of the pending case or is critical to the claims made by the discovering party, and the availability of information from alternative sources. See Davis v. City of Springfield, No. 04-3168, 2009 U.S. Dist. LEXIS 26806, at *13 (C.D. Ill. April 1, 2009) (factors included civil or criminal nature of case, availability of information from other sources and burden of production on press).  See also Gulliver's Periodicals, Ltd. v. Chas. Levy Circulating Co., Inc., 455 F. Supp. 1197, 1202-03 (N.D. Ill. 1978). In U.S. v. Jennings, No. 97 CR 765, 1999 WL 438984 (N.D. Ill. June 29, 1999), the court held that the First Amendment does not protect journalists from disclosure of non-confidential relevant information that is sought in good faith. In Jennings, the court held that a reporter must produce his notes of a pre-trial interview of a co-defendant of the subpoenaing party. The purpose of the subpoena was to determine whether being interviewed impacted the testimony of the co-defendant. The court also found that because the source of this information was not confidential there was no chilling effect on the press, nor would it be an excessive burden to the press or alter the way the press conducted its methods of pursuing information. Id. at *4; see also Warnell v. Ford Motor Co., 183 F.R.D. 624 (N.D. Ill. 1998) (granting plaintiff's motion to compel NBC videotape where source of videotape remained confidential and was highly relevant and otherwise unavailable to plaintiffs); U.S. v. Bingham, 765 F. Supp. 954, 959-60 (N.D. Ill. 1991) (holding that defendant's subpoena duces tecum seeking NBC interview outtakes would be quashed; however, defendant was entitled to transcripts of such outtakes).

In Liebhard v. Square D Co., No. 91 C 1103, 1992 WL 19358 (N.D. Ill. Aug. 4, 1992), a defendant in a securities lawsuit subpoenaed information from a Reuters' reporter regarding the accuracy of a quote. In weighing the importance of the reporter's privilege against the need for discovery, the court permitted the discovery of the reporter's notes regarding his conversation with the defendant. Additionally, the court allowed the reporter to be deposed for the limited purpose of testing his memory regarding his conversation with the defendant. The court refused to allow the reporter to be questioned on the collateral issue of whether he had heard any rumors regarding the takeover of defendant's company. The court also rejected the defendant's attempt to probe into the editorial process surrounding the reporter's story. The court held that allowing an inquiry into this aspect of the reporter's story was an impermissible invasion of the internal operations of the press. Id. at *3.

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4. Subpoena not overbroad or unduly burdensome

Courts have not been always been receptive to the argument that a subpoena is generically a burden to the press.  “Absent a showing of actual burden, the Court is not inclined to allow [the reporter] to avoid enforcement of the subpoena with a backdoor attempt to impose a privilege.

Thayer v. Chiczewski, 257 F.R.D. 466,470 (N.D. Ill. 2009).

Even within the criminal context, the court may quash a subpoena which is overbroad or simply fishing for evidence. In U.S. v. Lloyd, 71 F.3d 1256 (7th Cir. 1995), the court quashed a subpoena served by a criminal defense attorney who sought information from a newspaper reporter regarding his article in which a quote appeared from an unnamed police officer alleging there was a lottery on the life of defendant. Defense counsel argued the information was critical to the defendant because it established bias on behalf of the investigating officers. The court characterized this argument as an attempted fishing expedition. Defense counsel failed to establish any nexus between police officer bias and an infirmity in the defendant's arrest, nor was there any evidence that it was the arresting officer who was the source of the reporter's quote. Id. at 1268-69 (finding no relevance to the existence of an alleged lottery where the only issue before the jury was whether defendant possessed a firearm).

In Liebhard v. Square D. Co., No. 91 C 1103, 1992 WL 19358 (N.D. Ill. Aug. 4, 1992), a defendant in a securities lawsuit subpoenaed a Reuters' reporter for notes regarding an interview in which he allegedly misquoted the defendant. The court permitted the reporter to be deposed and to have his notes surrounding the interview to be disclosed. The court however, refused to allow the defendant any latitude in exploring two conversations the reporter had with third-parties regarding his interview given the consistent position he maintained during his deposition. The court found that allowing questioning of this sort amounted to no more than an evidentiary fishing expedition. Id. at *3-4.

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5. Threat to human life

There is no statutory or case law addressing this issue.

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6. Material is not cumulative

There is no statutory or case law addressing this issue.

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7. Civil/criminal rules of procedure

Subpoenas in criminal cases may not be overbroad or frivolous and must represent a good faith effort to identify evidence. Fed. R. Crim. P. 17(c). In civil cases, the subpoenaing party must avoid imposing undue burden or expense. Fed. R. Civ. P. 45(c)(1).

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8. Other elements

There is no statutory or case law addressing this issue.

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C. Waiver or limits to testimony

There is no federal statutory or federal case law on this issue in the Seventh Circuit.

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1. Is the privilege waivable?

There is no federal statutory or federal case law on this issue in the Seventh Circuit.

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2. Elements of waiver

a. Disclosure of confidential source's name

There is no federal statutory or federal case law on this issue in the Seventh Circuit.

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b. Disclosure of non-confidential source's name

There is no federal statutory or federal case law on this issue in the Seventh Circuit.

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c. Partial disclosure of information

There is no federal statutory or federal case law on this issue in the Seventh Circuit.

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d. Other elements

There is no federal statutory or federal case law on this issue in the Seventh Circuit.

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3. Agreement to partially testify act as waiver?

No case has addressed the situation in which a reporter agrees to partially testify. It appears a reporter can be ordered to partially testify without waiving the privilege as to other aspects of his or her information. See Liebhard v. Square D Co., No. 91 C 1103, 1992 WL 193558, at *3 (N.D. Ill. Aug. 4, 1992) (instructing reporter to testify on some issues and not on issues such as the editorial process); see also United States v. Hale, No. 03 CR 11, 2004 WL 1123796 at *1 - *3, (N.D. Ind. April 14, 2004; United States v. Bingham, 765 F. Supp. 954, 956 (N.D. Ill. 1991) (transcript of outtakes of videotape given to party seeking tapes sua sponte, but no waiver of privilege).

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VII. What constitutes compliance?

A. Newspaper articles

There is no statutory or case law addressing this issue.

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B. Broadcast materials

There is no statutory or case law addressing this issue.

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C. Testimony vs. affidavits

There is no statutory or case law addressing this issue

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D. Non-compliance remedies

There is no statutory or case law addressing this issue.

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1. Civil contempt

a. Fines

There is no statutory or case law addressing this issue.

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b. Jail

There is no statutory or case law addressing this issue.

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2. Criminal contempt

There is no statutory or case law addressing this issue.

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3. Other remedies

There is no statutory or case law addressing this issue.

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VIII. Appealing

A. Timing

1. Interlocutory appeals

No cases discuss this in the context of the reporter's privilege. Generally, the quashing of subpoenas is treated as a discovery ruling that is not appealable because it is not a final order under 28 U.S.C. § 1291. In order to get an appeal from a decision on a motion to quash, the subpoenaed party must disobey the subpoena and be held in contempt. In re Grand Jury Subpoena Duces Tecum appeal of Anonymous Corp., 725 F.2d 1110 (7th Cir. 1984). For the most part, only criminal contempt is appealable as a final order. In re Joint Eastern & Southern Districts Asbestos Litigation, 22 F.3d 755, 764 (7th Cir. 1994). But see Commodity Futures Trading Comm'n v. Collins, 997 F.2d 1230, 1232 (7th Cir. 1993) (decision on motion to quash was appealable as final order because the subpoena was the only action pending in the court). The decision in Commodity Futures suggests that a media party could appeal the decision of a court refusing to quash a subpoena when the only issue pending in that court is the subpoena. See also McKevitt v. Pallasch, 339 F.3d 530, 531 (7th Cir. 2003) (7th Circuit considered stay of order to produce tapes, only issue in lower court under 28 U.S.C. §1782).

If a reporter refuses to provide information to a grand jury, he can be immediately held in contempt and even confined. 28 U.S.C. § 1826 (a). In such a case, a reporter may appeal the decision of the court to the Court of Appeals. In re Matter of a Witness Before the Special October 1981 Grand Jury, 722 F.2d 349, 352 (7th Cir. 1983).

Decisions can also be appealed under 28 U.S.C. § 1292(b). This rule provides that an interlocutory order in a civil action may be appealed if the district court certifies that the order "involves a controlling question of law as to which there is substantial ground for difference of opinion, that an immediate appeal from the order may materially advance the ultimate determination of the litigation."

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2. Expedited appeals

Appeals can be expedited under 28 U.S.C. § 1657 for "good cause." Specifically, appeals may be expedited that relate to 28 U.S.C. § 1826, concerning recalcitrant witnesses, and any injunction action. There are no special considerations that affect news media subpoenas; however, journalists found in contempt under § 1826 should move for an expedited appeal under § 1657 or possibly seek an injunction against the subpoenaing party at an earlier point so that they may use the expedited appeal process.

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B. Procedure

1. To whom is the appeal made?

Generally speaking, it appears that the invocation of the reporter's privilege and the legal proceedings arising from the invocation of this qualified privilege begin in the federal district court. See e.g. U.S. v. Jennings, No. 97 CR 765, 1999 WL 438984 (N.D. Ill. June 21, 1999); Warnell v. Ford Motor Co., 183 F.R.D. 624 (N.D. Ill. 1998); Builders Assoc. of Greater Chicago v. County of Cook, No. 96 C 1121, 1998 WL 111702 (N.D. Ill. Mar. 12, 1998); Neal v. City of Harvey, Ill., 173 F.R.D. 231 (N.D. Ill. 1997). Once the district court has rendered a final judgment the parties may appeal to United States Court of Appeals for the Seventh Circuit under 28 U.S.C. §1291.

If the parties have consented to a determination of a case on the merits by a magistrate, this decision may be reviewed directly by the court of appeals via 28 U.S.C. §636(c)(3). The parties may also agree that the magistrate's decision be reviewed by the district court. In this event, review by the court of appeals is only on a petition for leave to appeal. See 28 U.S.C. §636(3)-(5).

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2. Stays pending appeal

In the Seventh Circuit, a party interested in moving for an expedited appeal should move simultaneously for an advancement of hearing and a stay of the judgment or order appealed from if that is necessary. See Fed. R. App. P. 8, 18. The procedural requirements for seeking a stay pending appeal are left to the judge’s discretion but are guided by the traditional factors.  Nken v. Holder, 556 U.S. 418, 434 (2009):

Factors controlling whether a stay will be granted are:

(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.

Id. at 434.

There is no statutory or case law that discusses whether a reporter's refusal to comply with a subpoena, that also touches upon a constitutional right, alters the analysis of when a stay should be granted. However, Linnemeir v. Bd. of Trustees of Purdue Univ., 260 F.3d 757 (7th Cir. 2001), suggest that the analysis will not change even when the issuance of stay may also involve issues of constitutional import. In Linnemeir, the Seventh Circuit denied state residents a stay that they sought after the district court refused to grant a preliminary injunction in their favor. At issue was whether Purdue University's presentation of a play violated the First Amendment when the play endorsed anti-Christian beliefs. The court explored the merits of this appeal under a First Amendment analysis, however, the constitutional nature of the issue did not give rise to an alternate set of criteria for granting or denying the stay itself. See also McKevitt v. Pallasch, 339 F.3d 530, 531 (7th Cir. 2003) (7th Circuit considered stay of order to produce tapes under 28 U.S.C. §1782).

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3. Nature of appeal

A reporter can appeal directly after being held in contempt by the court. No cases have treated the appeals any differently than "expedited" or "interlocutory" appeals as described above.

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4. Standard of review

The court of appeals reviews the trial court's decision to quash a subpoena under an abuse of discretion standard. Ott v. City of Milwaukee, 682 F.3d 552 (7th Cir. 2012).

See also United States v. Lloyd, 71 F.3d 1256, 1262, 1269 (7th Cir. 1995); Deitchman v. E.R. Squibb & Sons, 740 F.2d 556, 565 (7th Cir. 1984) (appellate court will reverse trial court's ruling quashing a subpoena only upon an abuse of discretion by the trial court).

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5. Addressing mootness questions

Generally, courts have found that appeals concerning motions to quash subpoenas are not moot. Socialist Workers Party v. Grubisic, 604 F.2d 1005, 1008 (7th Cir. 1979) (holding that appeal of trial court's denial motion to quash subpoena is not moot when trial court can release documents to parties at any time). Matter of Special April 1977 Grand Jury, 581 F.2d 589, 591 (7th Cir. 1978) (appeal not moot if the issue could not be fully litigated and is such that the party seeking to quash the motion would be subject to the same action again).

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6. Relief

Those courts that have accepted appeals on this issue have simply reversed the trial court's decision or upheld it. Commodity Futures Trading Comm'n v. Collins, 997 F.2d 1230, 1232 (7th Cir. 1993).

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IX. Other issues

A. Newsroom searches

No reported federal cases in the Seventh Circuit have discussed 42 U.S.C. 2000aa or searches of journalists' offices.

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B. Separation orders

No reported federal cases in the Seventh Circuit have discussed separation orders.

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C. Third-party subpoenas

No reported federal cases in the Seventh Circuit have discussed subpoenas from non-parties such as telephone companies or credit card companies.

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D. The source's rights and interests

No reported federal cases in the Seventh Circuit have discussed a source's right to intervene anonymously. But see Warnell v. Ford Motor Co., 183 F.R.D. 624, 626 (N.D. Ill 1998) (considering interests of source to remain confidential).

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