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Illinois

Reporter's Privilege Compendium

Samuel Fifer
samuel.fifer@dentons.com
Gregory R. Naron
gregory.naron@dentons.com
Dentons US LLP
233 S. Wacker Drive, Suite 5900
Chicago, IL 60606
(312) 876-8000

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I. Introduction: History & Background

In Illinois, reporters have a statutory qualified privilege protecting their sources, whether confidential or nonconfidential, from compelled disclosure. The Illinois Reporter’s Privilege Statute, 735 ILCS 5/8-901 to 8-909, (the “Statute”) provides that a court cannot order disclosure of the source of any information obtained by a reporter, except upon finding that “all other available sources of information have been exhausted” and either that “disclosure of the information sought is essential to the protection of the public interest involved” or in libel or slander cases, that the plaintiff’s need for disclosure “outweighs the public interest in protecting the confidentiality of sources of information used by a reporter.”

The statute is designed to preserve the autonomy of the press by allowing reporters to assure their sources of confidentiality, permitting the public to receive complete, unfettered information. In re Arya, 226 Ill. App. 3d 848, 852, 589 N.E.2d 832, 834 (1992). The Act incorporates the free press guarantees of the First Amendment and Art. I, § 4, of the Illinois Constitution (1970), and confers a presumptive privilege on the newsgathering functions of reporters and the media. “The reporter’s privilege has evolved from a common law recognition that the compelled disclosure of a reporter’s sources could compromise the news media’s first amendment right to freely gather and disseminate information.” In re Special Grand Jury Investigation of Alleged Violation of Juvenile Court Act, 104 Ill. 2d 419, 428–29, 472 N.E.2d 450, 454 (1984). “[T]his Act reflects ‘a paramount public interest in maintenance of a vigorous, aggressive and independent press capable of participating in robust, unfettered debate over controversial matters, an interest which has always been a principal concern of the First Amendment.’” People ex rel. Scott v. Silverstein, 89 Ill. App. 3d 1039, 1043, 412 N.E.2d 692, 694-95 (1980), rev’d on other grounds, 87 Ill. 2d 167 (1981) (citations omitted).

The Illinois Supreme Court and other Illinois courts have consistently upheld the principles behind the Statute. See, e.g., In Re Special Grand Jury Investigation, 104 Ill. 2d 419, 472 N.E.2d 450 (reversing circuit court’s order divesting reporter of privilege because the grand jury had not exhausted all other available sources of information); People v. McKee, 2014 IL App (3d) 130696 ¶ 11, 24 N.E.3d 75, 43 Media L. Rep. 1123 (2014) (reversing lower court’s divestiture order where subpoena was relevant only to collateral matters in proceeding); Cukier v. American Medical Ass’n, 259 Ill. App. 3d 159, 630 N.E.2d 1198 (1994)(refusing divestiture of privilege because the public has an interest in protecting confidentiality of sources, and because plaintiff failed to allege lack of other available sources); ’’People v. Slover, 323 Ill. App. 3d 620, 753 N.E.2d 554 (2001) (reversing jail conviction for reporter for refusing to produce unpublished crime scene photographs sought by a criminal defendant and applying the statutory reporter’s privilege); Kelley v. Lempesis, No. 13-cv-4922, 2015 WL 4910952 (N.D. Ill. Aug. 17, 2015) (quashing subpoena for non-party broadcaster’s outtakes in civil case where litigant did not exhaust alternative sources); Dunn v. Hunt, 31 Media L. Rep. 2245 (Ill. Cir. Ct., 2003) (civil plaintiff “has not met his burden to overcome the privilege and compel disclosure of the non-broadcast news materials”) Illinois v. Fort, 15 Media L. Rep. 2251 (Ill. Cir. Ct. 1988) (quashing subpoena where criminal defendant could not show that documents were essential for a fair trial and that he had exhausted all other available sources). But see People v. Pawlaczyk, 189 Ill. 2d 177, 724 N.E.2d 901 (2000) (upholding the principles behind the Statute with some favorable language for the media, but ultimately allowing disclosure and ordering the media to identify their sources to a grand jury on the grounds that disclosure was “essential to the public interest involved”).

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II. Authority for and source of the right

Illinois courts recognize that a reporter has a right not to disclose his/her sources of information under a statute called the reporter’s privilege statute, set out in 735 ILCS 5/8-901 to 8-909. Courts typically base their opinions on the wording contained in the Statute, but they recognize that the Statute stems from the First Amendment to the United States Constitution and the standard set out by the United States Supreme Court in Branzburg v. Hayes, 408 U.S. 665 (1972) (upholding the freedom of state legislatures to fashion their own standards with respect to journalists’ privilege).

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A. Shield law statute

Effective July 1, 1982, the Illinois legislature enacted a reporter’s privilege statute incorporating it into the state’s Code of Civil Procedure, 735 ILCS 5/8-901 to 8-909. The Statute did not alter the then current protections afforded reporters. The Statute shields the anonymity of sources, whether confidential or nonconfidential. An order divesting the reporter of the privilege is granted only if the court finds that “all other available sources of information have been exhausted and disclosure of the information is essential to the protection of the public interest involved.” 735 ILCS 5/8-907.

The Illinois legislature subsequently amended the reporter’s privilege on September 16, 1985, by extending the application of the Statute to libel and slander cases, and by specifying requirements for seeking disclosure in such cases.

The Statute provides as follows:

Sec. 8-901. Source of Information. No court may compel any person to disclose the source of any information obtained by a reporter except as provided in Part 9 of Article VIII of this Act [735 ILCS 5/8-901 et seq.].

Sec. 8-902. Definitions. As used in this Act:

(a) “reporter” means any person regularly engaged in the business of collecting, writing or editing news for publication through a news medium on a full-time or part-time basis; and includes any person who was a reporter at the time the information sought was procured or obtained.

(b) “news medium” means any newspaper or other periodical issued at regular intervals whether in print or electronic format and having a general circulation; a news service whether in print or electronic format; a radio station; a television station; a television network; a community antenna television service; and any person or corporation engaged in the making of news reels or other motion picture news for public showing.

(c) “source” means the person or means from or through which the news or information was obtained.

Sec. 8-903. Application to court.

(a) In any case, except a libel or slander case, where a person claims the privilege conferred by Part 9 of Article VIII of this Act, the person or party, body or officer seeking the information so privileged may apply in writing to the circuit court serving the county where the hearing, action or proceeding in which the information is sought for an order divesting the person named therein of such privilege and ordering him or her to disclose his or her source of the information.

(b) In libel or slander cases where a person claims the privilege conferred by Part 9 of Article VIII of this Act, the plaintiff may apply in writing to the court for an order divesting the person named therein of such privilege and ordering him or her to disclose his or her source of information.

Sec. 8-904. Contents of application. The application provided in Section 8-903 of this Act shall allege: the name of the reporter and of the news medium with which he or she was connected at the time the information sought was obtained; the specific information sought and its relevancy to the proceedings; and, either, a specific public interest which would be adversely affected if the factual information sought were not disclosed, or, in libel or slander cases, the necessity of disclosure of the information sought to the proof of plaintiff’s case. Additionally, in libel or slander cases, the plaintiff must include in the application provided in Section 8-903 a prima facie showing of falsity of the alleged defamation and actual harm or injury due to the alleged defamation.

Sec. 8-905. Civil Proceeding. All proceedings in connection with obtaining an adjudication upon the application not otherwise provided in Part 9 of Article VIII of this Act shall be as in other civil cases.

Sec. 8-906. Consideration by court. In granting or denying divestiture of the privilege provided in Part 9 of Article VIII of this Act the court shall have due regard to the nature of the proceedings, the merits of the claim or defense, the adequacy of the remedy otherwise available, if any, the relevancy of the source, and the possibility of establishing by other means that which it is alleged the source requested will tend to prove.

Sec. 8-907. Court’s findings. An order granting divestiture of the privilege provided in Part 9 of Article VIII of this Act shall be granted only if the court, after hearing the parties, finds:

(1) that the information sought does not concern matters, or details in any proceeding, required to be kept secret under the laws of this State or of the Federal government; and

(2) that all other available sources of information have been exhausted and, either, disclosure of the information sought is essential to the protection of the public interest involved or, in libel or slander cases, the plaintiff’s need for disclosure of the information sought outweighs the public interest in protecting the confidentiality of sources of information used by a reporter as part of the news gathering process under the particular facts and circumstances of each particular case.

If the court enters an order divesting the person of the privilege granted in Part 9 of Article VIII of this Act it shall also order the person to disclose the information it has determined should be disclosed, subject to any protective conditions as the court may deem necessary or appropriate.

Sec. 8-908. Privilege continues during pendency of appeal. In case of an appeal the privilege conferred by Part 9 of Article VIII of this Act remains in full force and effect during the pendency of such appeal.

Sec. 8-909. Contempt. A person refusing to testify or otherwise comply with the order to disclose the source of the information as specified in such order, after such order becomes final, may be adjudged in contempt of court and punished accordingly.

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B. State constitutional provision

Although the Illinois State Constitution does not contain express language establishing a reporter’s privilege, it does guarantee freedom of the press in article 1, section 4. In drafting the Statute, the Illinois legislature incorporated these free press guarantees. See People ex. rel. Scott v. Silverstein, 89 Ill. App. 3d 1039, 1042, 412 N.E.2d 692 (1980), rev’d in part on other grounds, 87 Ill. 2d 167, 429 N.E.2d 483 (1981), Villeda v. Prairie Material Sales Inc., 17 Media L. Rep. 2289, 2293 (Ill. Cir. Ct. 1990).

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C. Federal constitutional provision

In Branzburg v. Hayes, 408 U.S. 665 (1972), the Court found “merit in leaving state legislatures free, within First Amendment limits, to fashion their own standards” with respect to a journalist’s privilege, including the relations between law enforcement and the press. 408 U.S. at 706. The Court added, “[I]t goes without saying, of course, that we are powerless to bar state courts from responding in their own way and construing their own constitutions so as to recognize a newsman’s privilege, either qualified or absolute.” Id. Most Illinois courts have not based their decisions regarding reporters’ privilege solely on the First Amendment of the U.S. Constitution. Instead, most Illinois courts rely on the Statute in determining whether to divest the reporter of the privilege. See Reitz v. Gordon, 26 Media L. Rep. 1447 (N.D. Ill. 1997) (stating that the scope of the Statute is “synonymous with the federal common law privilege arising from the First Amendment”); see also People v. McKee, 2014 IL App (3d) 130696 ¶ 11, 24 N.E.3d 75, 43 Media L. Rep. 1123 (2014) (“The purpose of the privilege is to assure reporters access to information, thereby encouraging a free press and a well-informed citizenry”) (quoting People v. Pawlaczyk, 189 Ill. 2d 177, 187, 724 N.E.2d 901 (2000)); People ex. rel. Scott v. Silverstein, 89 Ill. App. 3d 1039, 1043, 412 N.E.2d 692, 695 (1980) (Statute “reflects a paramount public interest in the maintenance of a vigorous, aggressive and independent press capable of participating in robust, unfettered debate over controversial matters, an interest which has always been a principal concern of the First Amendment”); Cukier v. American Medical Ass’n, 259 Ill. App. 3d 159, 163, 630 N.E.2d 1198, 1200 (1994) (Statute “has evolved from a common law recognition that the compelled disclosure of a reporter’s sources could compromise the news media’s First Amendment right to freely gather and disseminate information”). Cf. Gutierrez v. Shafer, 9 Media L. Rep. 1054 (Ill. Cir. Ct. 1982) (quashing subpoena under the First Amendment instead of the Statute, holding that the privilege only protects against disclosure of sources and not the press).

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D. Other sources

There are no other sources of a reporter’s privilege in Illinois.  However, in addition to the Statute, Illinois recognizes the common law “special witness doctrine” and has held that it applies not only to judges and prosecutors, but to reporters.  People v. Palacio, 240 Ill.App.3d 1078, 607 N.E.2d 1375 (1993).  Under the doctrine, “the court should require either party in a criminal case to cross the following threshold before permitting that party to call a reporter to testify over the reporter’s objection. First, the party subpoenaing the reporter must specifically state the testimony the party expects to elicit from the reporter. Second, that party must specifically state why that testimony is not only relevant, but necessary to the party’s case. Finally, that party must specifically state the efforts that party has made to secure the same evidence through alternative means.”  Id. at 1102, 607 N.E.2d at 1389-90 (noting that defendant “could have asked the prosecutor whether he would stipulate to the accuracy of [reporter’s] column” which “would have eliminated any need for [reporter’s] testimony”).

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III. Scope of protection

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A. Generally

Under the Privilege, reporters are not required to disclose the source of any information unless a court finds that “all other available sources of information have been exhausted” and that “disclosure of the information sought is essential to the protection of the public interest involved.” 735 ILCS 5/8-907. The burden of proving these two elements is on the person or entity seeking access to the information.

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B. Absolute or qualified privilege

Illinois reporters are entitled to a qualified privilege of confidentiality for any source of information utilized. People v. Pawlaczyk, 189 Ill. 2d 177, 724 N.E.2d 901 (2000). The Statute provides that “no court may compel any person to disclose the source of any information obtained by a reporter” except after application to the court for an order divesting the reporter of the qualified privilege. 735 ILCS 5/8-901; see, e.g., Simon v. Northwestern Univ., 321 F.R.D. 328, 330, 45 Media L. Rep. 1961 (N.D. Ill. 2017).  The court will not order access to the information unless all other sources for obtaining the information have been exhausted and disclosure of the information sought is essential to the protection of the public interest. 735 ILCS 5/8-907(2).

 

Although the plain language of Section 8-907 reflects an intent to protect reporters, the Statute does not constitute an absolute or automatic ban on calling reporters to testify even if the trial court has complied with the divestment procedures set forth in Sections 8-904 and 8-907. People v. Palacio, 240 Ill. App. 3d 1078, 607 N.E.2d 135 (1993). For example, a reporter cannot claim the benefits of the reporter’s privilege if he was subpoenaed to testify in his own divorce case or in a civil case unconnected to his employment in which he was a party. Id.; see also Desai v. Hersh, 954 F.2d 1408, 1412 (7th Cir. 1992) (“granting an absolute privilege to journalists to maintain the confidentiality of their sources in a libel case is neither required or authorized”) (citing Herbert v. Lando, 441 U.S. 153, 170, 99 S.Ct. 1635, 1645 (1979)).

In Palacio, the court rejected the argument that mere assertion of the privilege made the procedural aspects of the reporter’s privilege statute applicable. 240 Ill. App. 3d 1078, 607 N.E.2d 135 (1993). The Statute “is not without its limits; it applies in circumstances in which someone seeks to compel a reporter to disclose the source of any information obtained by the reporter.” Id. at 1093-94, 607 N.E.2d at 1384. The court noted the appropriate concern was “about harassment of the press and efforts to disrupt a reporter’s relationship with its news sources.” Id., 607 N.E.2d at 1384.

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C. Type of case

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1. Civil

In civil cases, the reporter’s privilege extends to all underlying unpublished material gathered in preparation for a news story or broadcast regardless of whether the source of the material is confidential. Gulliver’s Periodicals. Ltd. v. Chas. Levy Cir. Co., 455 F. Supp. 1197 (N.D. Ill. 1978). See also Kelley v. Lempesis, No. 13-cv-4922, 2015 WL 4910952 (N.D. Ill. Aug. 17, 2015) (quashing subpoena for non-party broadcaster’s outtakes in civil case); Reitz v. Gordon, 26 Media L. Rep. 1447 (N.D. Ill. 1997) (quashing a subpoena to a non-party newspaper in a civil case); Dunn v. Hunt, 31 Media L. Rep. 2245 (Ill. Cir. Ct. 2003) (declining to compel production of subpoena for outtakes). Indeed, in criminal proceedings, Illinois courts have looked to precedent of civil cases when determining whether the elements needed to divest the privilege have been satisfied. See, e.g., In re Arya, 226 Ill. App. 3d 848, 549 N.E.2d 832 (1992).

Section 8-905 of the Statute provides that “all proceedings in connection with obtaining an adjudication upon the application not otherwise provided in Part 9 of Article VIII of this Act shall be as in other civil cases.” For example, the standard of proof used in proceedings pursuant to the Statute is a preponderance of evidence. This standard holds even if the underlying facts of the case involve a criminal investigation. See, e.g., In re Arya, 226 Ill. App. 3d at 862, 549 N.E.2d at 841.

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2. Criminal

Illinois federal and state courts appear to treat criminal cases the same as civil cases. See United States v. Lopez, 14 Media L. Rep. 2204, 1987 WL 26051 (N.D. Ill. 1987) (‘rejecting argument that a reporter’s qualified privilege does not apply in criminal cases) (citing United States v. Burke, 700 F.2d 70, 77 (2d Cir. 1983) (“the important social interests in the free flow of information that are protected by the reporter’s qualified privilege are particularly compelling in criminal cases, since reporters are to be encouraged to investigate and expose evidence of criminal wrongdoing”)); see also People v. Childers, 94 Ill. App. 3d 104, 41 N.E.2d 959 (1981) (affirming trial court’s denial of criminal defendant’s application for the news reporter’s disclosure); Illinois v. Johnson, 11 Media L. Rep. 1101 (Ill. Cir. Ct. 1984) (quashing a criminal defendant’s subpoena for materials and information relating to a WBBM broadcast).

In criminal cases, like civil cases, the court is charged with balancing the social interest in the disclosure of the information against the public interest in the freedom of the press. In weighing these competing interests, one Illinois court considered the defendant’s rights under the Fifth and Sixth Amendments as elements that counterbalance the reporter’s First Amendment interest. United States v. Bingham, 765 F. Supp. 954 (N.D. Ill. 1991) (granting a broadcast company’s motion to quash but ordering the company to turn over to defendant the transcripts of the outtakes in order to protect defendant’s rights under the Fifth and Sixth Amendments). Some Illinois courts have looked to other jurisdictions that have quashed a subpoena based on the defendant’s Sixth Amendment trial rights to ensure that they interpret the privilege correctly. See, e.g., People v. Pawlaczyk, 189 Ill. 2d 177, 195, 724 N.E.2d 901, 912 (2000) (citing Brown v. Commonwealth, 214 Va. 755, 758, 204 S.E.2d 429, 431 (1974)).

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3. Grand jury

Although Illinois courts have not expressly set forth different standards for grand jury subpoenas relating to the Statute, some Illinois courts have found that grand jury proceedings implicate a compelling public interest that outweighs the public’s interest in the privilege. See People v. Pawlaczyk, 189 Ill.2d 177, 724 N.E.2d 901 (2000)’“”. In Pawlaczyk, two reporters called to testify before a grand jury regarding potential perjury charges against their sources sought to quash the subpoena, arguing that their testimony was not relevant and that disclosure of their sources’ identities did not serve a compelling public interest. Id. at 192, 724 N.E.2d at 910. The Illinois Supreme Court upheld the subpoenas, finding that the reporters’ testimony was relevant to a fact of consequence in the perjury proceedings and that the grand jury proceedings implicated a compelling public interest that outweighed the public’s interest in the reporter-source privilege. Id. at 199, 724 N.E.2d at 914. But see In re Special Grand Jury Investigation, 104 Ill. 2d 419, 472 N.E. 2d 450 (1984) (holding that proof of exhaustion of alternative sources was insufficient to justify stripping the reporter of the statutory privilege when a grand jury requested that the state file an application to deny the privilege to the article’s author).

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D. Information and/or identity of source

“To further the public interest in a free press, the [Statute] protects not only identities of sources but also the ‘means from or through which the news or information was obtained.’” Kelley v. Lempesis, No. 13-cv-4922, 2015 WL 4910952, at *2 (N.D. Ill. Aug. 17, 2015) (quoting 735 ILCS 5/8–902(c)).  The courts have “interpreted the ‘means’ clause ‘to protect more than simply the names and identities of witnesses, informants, and other persons providing news to a reporter,’” noting that “the legislature did not limit the scope of [the Statute] by inserting either ‘the name of’ or ‘the identity of’ before ‘the source of any information.’”  Id. (quoting People v. Slover, 323 Ill. App. 3d 620, 624, 753 N.E.2d 554, 557-58 (2001)).  See also Simon v. Northwestern Univ., 321 F.R.D. 328, 332, 45 Media L. Rep. 1961 (N.D. Ill. 2017) (“audio and visual data, notes, drafts, and transcribed interviews gathered by” filmmakers in creation of documentary were “the source from which [documentary] was created” and covered by statute).

 

The Statute also protects information that implicitly identifies a source of information. For example, in FMC Corp. v. Capital Cities/ABC Inc., 915 F.2d 300 (7th Cir. 1990), ABC broadcast a story about the pricing policies of a Defense Department contractor, FMC Corp., displaying copies of documents from FMC’s files. FMC asserted that the original documents were missing from its files and sued for conversion. ABC refused to return the documents or show them to the plaintiff, asserting that doing so would violate its First Amendment rights and the Statute. The Seventh Circuit held that ABC would have to return any originals that it possessed, and that it would have to provide FMC with copies of documents that FMC no longer possessed. The court held that under the Statute, ABC could furnish the information to FMC in a manner designed to protect any of ABC’s sources.

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E. Confidential and/or nonconfidential information

Confidential information, generally, is any information obtained by a news gatherer under a promise of confidentiality. Non-confidential information, conversely, is any information obtained other than through a promise of confidentiality. The Statute does not differentiate between confidential and non-confidential information. The Statute extends to all sources whether or not they are considered confidential.   People v. Palacio, 240 Ill. App.3d 1078, 1092, 607 N.E.2d 135, 138 (1993). “[T]he definition of ‘source’ makes no distinction between confidential and nonconfidential ‘person or means from or through which the news or information was obtained.’“ People ex rel. Scott v. Silverstein, 89 Ill. App. 3d 1039, 1043, 412 N.E.2d 692, 695 (1980) (noting that “[t]he compelled production of a reporter’s resource materials is equally as invidious as the compelled disclosure of his confidential informants”) (quoting Gulliver’s Periodicals, Ltd. v. Chas. Levy Circulating Co., Inc., 455 F. Supp. 1197, 1204 (N.D. Ill. 1978)); Kelley v. Lempesis, No. 13-cv-4922, 2015 WL 4910952 (N.D. Ill. Aug. 17, 2015) (same; quashing subpoena for broadcaster’s outtakes); see also People v. Slover, 323 Ill. App. 3d 620, 624, 753 N.E.2d 554, 558 (2001) (subpoenaed photographs were privileged because section 8-901 of the Statute protects even non-confidential sources)’’; McCabe v. Greager, 27 Media L. Rep, 1702, 1703 (Ill. Cir. Ct. 1999) (videotape outtake was a “source” as defined by 735 ILCS 5/8-902(c), and cloaked with the statutory privilege regardless of whether it was confidential). But see McKevitt v. Pallasch, 339 F.3d 530, 533 (7th Cir. 2003) (in federal question case, court expressly declined to address Illinois reporter’s privilege statute, and cast doubt on existence of federal privilege, finding it “difficult to see what possible bearing the First Amendment could have on the question of compelled disclosure” of nonconfidential material); United States v. Jennings, No. 97 CR 765, 1999 U.S. Dist. LEXIS 9534 at *1, *4 (N.D. Ill. June 21, 1999) (holding that in federal criminal cases “the Illinois Reporter’s Privilege Act provides no guidance” and “the First Amendment does not protect journalists from disclosure of non-confidential, relevant information that is sought in good faith”).

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F. Published and/or non-published material

On its face, the Statute does not distinguish between published and non-published material. In People v. Slover, the court interpreted the Statute as granting a qualified privilege against disclosure for even unpublished photographs taken by members of the media. 323 Ill. App. 3d 620, 624, 753 N.E.2d 554, 558 (2001). There, a murder defendant sought a subpoena to compel production of unpublished newspaper photographs that depicted search warrants being executed. Id. at 622, 753 N.E.2d at 556. The court held that a photograph is a “source” of information under the plain meaning of the Statute even if the photo does not depict the identity of a person who is a news source. See also People ex. rel. Scott v. Silverstein, 89 Ill. App. 3d 1039, 1043, 412 N.E.2d 695 (1980) (“The compelled production of a reporter’s resource materials is equally as invidious as the compelled disclosure of his confidential informants”); Simon v. Northwestern Univ., 321 F.R.D. 328, 332, 45 Media L. Rep. 1961 (N.D. Ill. 2017) (“audio and visual data, notes, drafts, and transcribed interviews gathered by” filmmakers in creation of documentary were “the source from which [documentary] was created” and covered by statute); Kelley v. Lempesis, No. 13-cv-4922, 2015 WL 4910952 (N.D. Ill. Aug. 17, 2015) (quashing subpoena for unpublished outtakes); Reitz v. Gordon, 26 Media L. Rep. 1447 (N.D. Ill. 1997) (quashing subpoena because unpublished photographs were not shown to be sufficiently necessary to the parties).

 

Illinois trial courts have repeatedly applied the Statute’s protections to video outtakes and other unpublished source materials.  See, e.g., People v. Goldman, 34 Media L. Rep. 2310 (Ill. Cir. Ct. 2005) (quashing subpoena in criminal case for video outtakes of interview with defendant); Smith v. Advocate Health Care Network, 33 Media L. Rep. 1752 (Ill. Cir. Ct. 2004) (video outtakes were no different than unpublished photographs and therefore qualified for protection under Statute); Dunn v. Hunt, 31 Media L. Rep. 2245 (Ill. Cir. Ct. 2003) (declining to compel production of unaired film footage because Statute “protects compelled disclosure of resource materials and information gathered by a journalist”); McCabe v. Greager, 27 Media L. Rep. 1702 (Ill. Cir. Ct. 1999)  (video outtake was considered a source under the Statute regardless of whether it was confidential or that it was only an outtake).

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G. Reporter's personal observations

The Northern District of Illinois has refused to apply the Statute when a reporter personally witnessed an occurrence. Alexander v. Chicago Park District, 548 F. Supp. 277 (N.D. Ill. 1982). In Alexander, plaintiffs served the Chicago Sun Times and five of its reporters with subpoenas. Ultimately, plaintiffs sought only the reporters’ testimony as to their personal observations of the parks during their investigation for a series on the parks. The court denied the reporter’s motion to quash, holding that the testimony as to the reporters’ observations was not “source material” protected by the First Amendment. Id. at 278. “A reporter’s observations of a public place or event are no different in kind than that of other individuals; and as to this, they are not entitled to constitutional protection.” Id.

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H. Media as a party

Although there have been very few Illinois cases analyzing the application of the Statute where the media is a party, the Seventh Circuit indirectly addressed this issue in FMC Corp. v. Capital Cities/ABC, Inc., 915 F.2d 300 (7th Cir. 1990). There, the court held that, while the Statute did not apply to ABC, ABC could furnish the information in a manner designed to protect ABC’s sources.

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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). 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, 1412 (7th Cir. 1992).  While in Desai, plaintiff did not seek divestiture, and waived objection to the reporter testifying about his confidential sources without revealing their identity, the court made clear that admitting such testimony would be error.  See id. (“by allowing Hersh to utilize reporters privilege and then permitting Hersh to vouch for the unnamed sources the district court virtually eliminated [plaintiff’s] ability to test the reliability — or even existence — of Hersh’s sources” and “in effect, treated the privilege as absolute . . . granting an absolute privilege to journalists to maintain the confidentiality of their sources in a libel case is neither required or authorized”) (citing Herbert v. Lando, 441 U.S. 153, 170, 99 S.Ct. 1635, 1645 (1979)).  Compare Salamone v. Hollinger Intern., Inc., 347 Ill.App.3d 837, 842, 807 N.E.2d 1086, 1091 (2004) (innocently construing phrase “reputed organized crime figure” in defamation case, court comments that the “obvious question:  ‘Reputed by whom?’ is easily deflected by the statutory privilege that protects a journalist from revealing his sources”).

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. Courts have interpreted the relevance standard more leniently in libel and slander cases because such privileged information is often the basis of the suit.

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IV. Who is covered

Three key terms are defined in the Statute: “reporter,” “news medium,” and “source.” 735 ILCS 5/8-902. Because the statutory definitions are rather broad, courts have considerable leeway in deciding what actually falls within such definitions. For example, an Illinois appellate court concluded that a photojournalist was within the definition of “reporter” and a photograph fell within the statutory definition of a “source” of information. The court stated “[p]hotojournalism is not a word crafted to artificially enhance the capacity to tell a story and gather or report the news by means of an image. A photojournalist is a reporter. When a reporter obtains news or information by means of photography, the photograph is a ‘source’ of information within the plain meaning of section 8-901 as defined in section 8-902(c).” People v. Slover, 323 Ill. App. 3d 620, 624, 753 N.E.2d 554, 557 (2001).

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A. Statutory and case law definitions

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1. Traditional news gatherers

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a. Reporter

The Statute defines “reporter” as “any person regularly engaged in the business of collecting, writing or editing news for publication through a news medium on a full-time or part-time basis; and includes an person who was a reporter at the time the information sought was procured or obtained.” 735 ILCS 5/8-902(a). The Statute covers all “reporters” regardless of whether they work full-time or part-time, as the statutory definition is not contingent upon a minimum number of working hours.  See Simon v. Northwestern Univ., 321 F.R.D. 328, 331, 45 Media L. Rep. 1961 (N.D. Ill. 2017) (documentary filmmaker “fit comfortably within the definition” of reporter even though “he was also a practicing attorney during this same time period,” since “[t]he Act does not forbid dual-employment”); Desai v. Hersh, 954 F.2d 1408, 1412 n. 3 (7th Cir. 1992) (“reporters who author books” are protected by the Statute).

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b. Editor

Although the Statute does not explicitly define “editor,” an “editor” appears to be covered in the definition of “reporter” in Section 8-902(a) of the Statute because a reporter is defined as “any person . . . writing or editing news for publication . . .” 735 ILCS 5/8-902(a)(emphasis added).

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c. News

Although the Statute does not define “news,” it does state that a reporter is one who is “writing or editing news for publication through a news medium . . .” 735 ILCS 5/8-902(a)(emphasis added).  In Simon v. Northwestern Univ., 321 F.R.D. 328, 45 Media L. Rep. 1961 (N.D. Ill. 2017), the court rejected the argument that documentary film about plaintiff’s wrongful conviction that was the subject of defendant’s subpoena “was not a news product created by ‘a vigorous, aggressive, and independent press,’ but rather a ‘piece of propaganda’ created ‘to promote a litigation theory’ that benefited” plaintiff; the evidence showed that in “gathering and explaining the story behind the convictions” the filmmakers had no “agenda or ulterior motive in mind” – even though one of them later joined plaintiff’s legal team.  Id. at 331.

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d. Photo journalist

Although the Statute does not define “photo journalist,” Illinois courts have held that photographers are considered “reporters” under Section 8-902(a). See, e.g., People v. Slover, 323 Ill. App. 3d 620, 624, 753 N.E.2d 554, 557 (2001) (concluding that the Herald’s photographers unquestionably were engaged in the business of collecting news for publication in a news medium and were considered “reporters” under the Statute).

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e. News organization/medium

The Statute defines “news medium” as “any newspaper or other periodical issued at regular intervals whether in print or electronic format and having a general circulation; a new service whether in print or electronic format; a radio station; a television station; a television network; a community antenna television service; and any person or corporation engaged in the making of news reels or other motion picture news for public showing.” 735 ILCS 5/8-902(b).  See Simon v. Northwestern Univ., 321 F.R.D. 328, 331 n. 3, 45 Media L. Rep. 1961 (N.D. Ill. 2017) (court had “little trouble concluding that” documentary film was a “news medium” under the statutory language).

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2. Others, including non-traditional news gatherers

It does not appear that Illinois courts have directly addressed the issue of whether the Statute applies to non-traditional news gatherers. Nonetheless, courts have interpreted the definition of “researcher” rather broadly. See, e.g., People v. Slover, 323 Ill. App. 3d 620, 753 N.E.2d 554 (2001). It appears that anyone can assert the privilege and the court can reject or accept it. For example in Slover, a murder defendant issued a subpoena to numerous persons employed at eight media organizations, including a librarian at a newspaper, to produce published and unpublished photographs related to the death of the victim. Id. at 622, 753 N.E.2d at 556. The librarian refused to produce the photographs and asserted the reporter’s privilege. Id. The trial court found that the unpublished photographs were not privileged and that the librarian could not assert the reporter’s privilege, and found her in civil contempt. The trial court held a sentencing hearing in which they allowed the editor of the paper to be substituted as the subject of its order. The appellate court reversed the order, holding that the photographs were privileged and overturning the contempt charge against the librarian.

Similarly, in Cukier v. American Medical Ass’n, 259 Ill. App. 3d 159, 630 N.E.2d 1198 (1994), the appellate court applied the Statute to a medical journal and its editor, holding that the journal and its editor met the definitions of “news medium” and “reporter,” respectively, under the Statute. In refusing to grant access to the information, the court held that the journal and its editor could have learned the information from an undisclosed source during the “news gathering” process. Id. at 164, 630 N.E.2d at 1201.

In Simon v. Northwestern Univ., 321 F.R.D. 328, 45 Media L. Rep. 1961 (N.D. Ill. 2017),  after holding an evidentiary hearing “to learn about the filmmakers’ role in producing the documentary” that was the subject of a subpoena, the district court found that “based on the filmmakers’ duties and responsibilities with respect to filming, editing, and producing,” they “were clearly ‘reporters’ within the meaning of the Statute.”  Id. at 331.

Also, in an unpublished order, the Circuit Court of Cook County held that a government watchdog group, the Better Government Association, could assert the reporter’s privilege in response to defendants’ subpoena in the capital murder case. Defendants, on trial for the infamous “Brown’s Chicken Massacre,” sought the BGA’s notes and other work product it compiled for an article it had produced concerning the case and how the police bungled their investigation. The court observed that the BGA “need not fit into any pre-conceived category of journalism in order to qualify under the Illinois Reporter’s Privilege Act’s definition of reporter.” Mem. Op. and Order, Illinois v. Degorski and Luna, 02 CR 15430 (Ill. Cir Ct., May 20, 2005), at p. 13.

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B. Whose privilege is it?

The privilege belongs to the reporter. In most Illinois cases, it is the reporter or publisher who seeks protection under the Statute. See, e.g., People v. Slover, 323 Ill. App. 3d 620, 753 N.E.2d 554 (2001); People v. Pawlaczyk, 189 Ill. 2d 177, 724 N.E.2d 901 (2000); Cukier v. American Medical Ass’n, 259 Ill. App. 3d 159, 630 N.E.2d 1198 (1994) (holding that the editor and authors of a medical journal were “reporters” able to assert the privilege). In addition, Illinois case law states that the “privilege [is] granted to reporters.” Pawlaczyk, 189 Ill. 2d at 181, 724 N.E.2d at 905 (emphasis added); Simon v. Northwestern Univ., 321 F.R.D. 328, 330, 45 Media L. Rep. 1961 (N.D. Ill. 2017). Although the statute itself remains ambiguous as to whether the reporter is the only one allowed to assert the statutory privilege, Section 8-901 provides that “no court may compel any person to disclose the source of any information obtained by a reporter . . . .” (emphasis added).

Although the privilege belongs to the reporter, it is the source itself that is the subject of the Statute’s protection. Simon, 321 F.R.D. at 330-31.  Furthermore, Illinois courts have recognized that the legislature intended to protect more than simply the name and identities of sources. See Slover, 323 Ill. App. at 624; 753 N.E.2d at 558 (holding that “[t]he legislature did not limit the scope of section 8-901 of the Statute by inserting either ‘the name of’ or ‘the identity of’ before ‘the source of any information’“).

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V. Procedures for issuing and contesting subpoenas

Absent the provisions within the Shield Law itself, the Illinois Code of Civil Procedure governs the issuance of subpoenas in civil cases. See, e.g., 735 ILCS 5/2-1101, 5/10-109.  Subpoenas issued in criminal cases are governed by the Illinois Code of Criminal Procedure, see 725 ILCS 5/115-17 (issuance of subpoenas “on the part of the people or of the accused”); 5/112-4(b) (grand jury’s subpoena power); and criminal rules of practice for each judicial district. See, e.g., Cook Cty., Ill. Cir. Ct. Rule 15.3 (rule for issuing subpoenas in criminal cases in Cook County); Rules of Practice, Ill. 19th Judicial Cir., Rule 9-1.11 (pretrial subpoenas in criminal cases). In addition, Illinois Supreme Court Rules govern compelling appearances of witnesses at trial and the subpoena power in civil cases. See Ill. Sup. Ct. R. 204 (deposition), 237(trial).

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A. What subpoena server must do

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1. Service of subpoena, time

A subpoena to depose a witness in a civil proceeding may be served by certified or registered mail, so long as the return receipt shows that the deponent or his agent received the subpoena at least seven days before the date on which his appearance is sought. The party seeking to depose the witness must submit an affidavit showing that the mailing was prepaid and was addressed to the deponent, restricted delivery, return receipt requested, showing to whom, date and address of delivery, with a check or money order for the fee and mileage enclosed. See Ill. Sup. Ct. R. 204. Illinois Supreme Court Rule 237 provides the time frame for service of subpoenas on civil trial witnesses in Illinois. The rule states that subpoena by mail must be delivered to the witness by certified or registered mail at least seven days before the date on which appearance is required. Ill. Sup. Ct. R. 237. Subpoenas for witnesses in criminal proceedings are governed by the local rules of each Illinois Judicial District, and vary from district to district.

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2. Deposit of security

Although there is no Illinois statutory or case law addressing the issue of deposit of security to procure the testimony or materials of the reporter, the Illinois Code of Civil Procedure provides that the court, in a case of subpoena duces tecum, may condition the denial of a motion to quash or modify a subpoena upon payment in advance of the reasonable expense of producing any item therein specified by the person in whose behalf the subpoena is issued. 735 ILCS 5/2-1101.

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3. Filing of affidavit

Although there is no Illinois statutory or case law specifically addressing whether an affidavit must accompany a subpoena to the news media, the Statute does require that the application to the court requesting divestiture of the privilege allege the following facts: 1) the name of the reporter and of the news medium with which he or she was connected at the time the information sought was obtained; 2) the specific information sought and its relevancy to the proceedings; and 3) a specific public interest which would be adversely affected by non-disclosure of the information. In a libel or slander case, the movant must allege, in place of element #3 above, that the disclosure of information is necessary to the proof of the movant’s case. 735 ILCS 5/8-904. The Statute also requires the movant in a libel or slander case to make a prima facie showing of defamation, including falsity of the statements and actual harm or injury due to the alleged defamation. Id.

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4. Judicial approval

The Illinois Code of Civil Procedure, 735 ILCS 5/2-1101, states that “[a]n order of court is not required to obtain the issuance by the clerk of a subpoena duces tecum.” Other than the Shield Law, there is no Illinois statutory or case law specifically addressing judicial approval for a subpoena to a member of the news media.

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5. Service of police or other administrative subpoenas

The Illinois Code of Civil Procedure governs administrative review. 735 ILCS 5/3-101 et seq. The Illinois Administrative Code addresses subpoenas with regard to the various administrative agencies and committees. Each administrative agency or committee has its own rule relating to the issuance of subpoenas.

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B. How to Quash

A reporter faced with a subpoena may file a motion with the court to quash that subpoena. The burden to defeat a motion to quash lies with the party seeking to divest the reporter of the privilege. If the party seeking divestiture cannot establish 1) the relevance of the information to the proceeding, 2) the public interest supported by disclosing the information, and 3) exhaustion of all other available sources of the information, the court may quash the subpoena. Illinois v. Fort, 15 Media L. Rep. 2251, 2253-54 (Ill. Cir. Ct. 1988). Conversely, the court may deny the reporter’s motion to quash if the party seeking divestiture meets the three requirements above. See, e.g., People v. Pawlaczyk, 189 Ill. 2d 177, 196, 724 N.E.2d 901, 913 (2000) (denying reporter’s motion to quash and upholding an order divesting the reporter of the privilege when the reporter’s testimony was relevant to a fact of consequence in the proceedings and the public interest favored disclosure).

The Illinois Supreme Court has reviewed the propriety of quashing a subpoena under the  “manifest weight of the evidence” standard. Pawlaczyk, 189 Ill.2d at 188, 724 N.E.2d at 908; see also United States v. Lloyd, 71 F.3d 1256, 1268 (7th Cir. 1995); United States v. McCollom, 815 F.2d 1087, 1089 (7th Cir. 1987) (applying abuse of discretion standard). As a general rule, appellate courts afford the trial judge “great deference” with respect to evidentiary rulings because of his “first-hand exposure to the witnesses and evidence as a whole, and because of his familiarity with the case and ability to gauge the likely impact of the evidence in the context of the entire proceeding.” United States v. Torres, 977 F.2d 321, 329 (7th Cir. 1992); see also Lloyd, 71 F.3d at 1269 (trial court did not abuse its discretion in quashing subpoena to reporter “because the substance of her proposed testimony was of speculative value at best, and was only being offered for the possible purpose of attempting to impeach witnesses as to matters collateral to [the defendant’s] possession of the firearm”).

However, when the issue on appeal concerns interpretation of the statute, that legal issue is reviewed de novo. People v. McKee, 2014 IL App (3d) 130696 ¶ 10, 24 N.E.3d 75, 43 Media L. Rep. 1123 (2014) (citing People v. Slover, 323 Ill.App.3d 620, 623, 753 N.E.2d 554, 557 (2001); Pawlaczyk, 189 Ill.2d at 192-95, 724 N.E.2d at 911-12 (interpreting statutory language)).

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1. Contact other party first

There is no Illinois statutory or case law addressing this issue. However, Illinois Supreme Court Rule 201(k) provides that, during discovery in a civil proceeding, the parties shall “facilitate discovery under these rules and shall make reasonable attempts to resolve differences” during the discovery period. Ill. Sup. Ct. R. 204(k).

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2. Filing an objection or a notice of intent

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

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3. File a motion to quash

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a. Which court?

Although the Illinois Code of Civil Procedure does not specifically address this issue, Illinois case law indicates that motions to quash a subpoena should be filed in the court adjudicating the proceeding that led to the subpoena of the reporter. See People ex. rel. Scott v. Silverstein, 89 Ill. App. 3d 1039, 412 N.E.2d 695 (1980); People v. Palacio, 240 Ill. App. 3d 1078, 607 N.E.2d 1375 (1993).

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b. Motion to compel

Illinois Supreme Court Rule 219 sets forth the consequences for refusing to comply with court orders, including subpoenas.

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c. Timing

Illinois case law, together with Illinois Supreme Court Rule 219 indicate that a motion to quash a subpoena should be filed before the subject of the subpoena is in contempt of the court’s order(s).

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d. Language

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

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e. Additional material

There is no additional material.

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4. In camera review

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a. Necessity

Although there does not appear to be a mandatory law in Illinois directing a court to conduct an in camera review of materials prior to ruling on a motion to quash, some courts have stated that an in camera review of the material in question may be appropriate if an issue arises as to the appropriate scope of the disclosure order. See, e.g., In re Arya, 266 Ill. App. 3d 848, 862, 589 N.E.2d 832, 841 (1992). In such instances, the trial court should scrutinize the material in camera to ensure that its production does not abridge the protections the legislature afforded source information through the Statute. Id., 589 N.E.2d at 841. For example, in United States v. Bingham, the court discovered, during an in camera review, that numerous statements in the witness’s interview outtakes contradicted the witness’s direct examination testimony. 765 F. Supp. 954, 956 (N.D. Ill. 1991). The court held that the defendants were seeking highly relevant prior inconsistent statements by the witness when trying to divest the reporter of the privilege. Id. at 957.

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Illinois courts have not directly addressed the consequences of consent to in camera review on the appeal process. The court in United States v. Bingham indirectly addressed the issue when the news media party consented to an in camera review in order for the court to make an accurate determination on the motion to quash the subpoena and did not appeal the order. 765 F. Supp. 954, 956 (N.D. Ill. 1991).

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c. Consequences of refusing

The Statute provides a contempt provision stating that “[a] person refusing to testify or otherwise comply with the order to disclose the source of the information as specified in such order, after such order becomes final, may be adjudged in contempt of court and punished accordingly.” 735 ILCS 5/8-909.  In People v. Slover, 323 Ill. App. 3d 620, 753 N.E.2d 554 (2001), the trial court allowed newspaper editor to “purge herself of the contempt finding by delivering all referenced photographs to the [c]ourt for an in camera review”; she “respectfully declined to produce unpublished photographs and requested a sentence in the trial court's discretion to enable her to appeal the trial court's order.”  The trial court sentenced the editor to jail, staying the sentence pending an appeal (in which she prevailed).  Id. at 622-23, 753 N.E.2d at 556.

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5. Briefing schedule

The court in which the proceeding is initiated may set a briefing schedule.

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6. Amicus briefs

Amicus briefs may be filed only by leave of the court, or at the courts request. Ill. Sup. Ct. R. 345(a). Illinois Supreme Court Rules 341-344 set forth the rules for the format and appearance of amicus briefs. Amicus curiae are not allowed time for oral argument. Ill. Sup. Ct. R. 345(c).

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VI. Substantive law on contesting subpoenas

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A. Burden, standard of proof

Although the Statute does not explicitly state a standard of proof, section 8-905 states that “all proceedings in connection with obtaining an adjudication upon the application not otherwise provided in Part 9 of Article VIII of this [Statute] shall be as in other civil cases.” A petitioner seeking disclosure must prove compliance with the statutory requirements by a preponderance of the evidence; with regard to the issue of exhaustion, this burden amounts to requiring the petitioner to prove a negative. In re Arya, 226 Ill. App. 3d 848, 589 N.E.2d 832 (1992); People v. McKee, 2014 IL App (3d) 130696 ¶ 10, 24 N.E.3d 75, 43 Media L. Rep. 1123 (2014).

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B. Elements

A reporter may be deprived of the statutory privilege once the party seeking disclosure meets the requirements set forth in Section 8-904. People v. Pawlaczyk, 189 Ill.2d 177, 188, 724 N.E.2d 901, 908 (2000). The party seeking disclosure must identify the specific information’s “relevancy to the proceedings” by alleging: 1) that a specific public interest would be adversely affected if the information sought was not disclosed; 2) that the information sought does not concern matters or details required to be kept secret under the laws of this State or the Federal Government; 3) that all other available sources of information have been exhausted; and 4) that disclosure of the information sought is essential to the protection of the public interest involved. 735 ILCS 5/8-904, 8-907; Pawlaczyk, 189 Ill.2d at 188, 724 N.E.2d at 908.

In libel or slander cases, the plaintiff seeking access to potentially privileged information must prove the prima facie case, showing falsity of the alleged defamation and actual harm or injury due to the alleged defamation. In addition, the plaintiff must show that that the need for disclosure outweighs the public interest in protecting the confidentiality of sources of information and the overall freedom of the press. 735 ILCS 5/8-904, 8-907.

The Statute states that a court, when granting or denying disclosure, shall consider the nature of the proceedings, the merits of the claims or defense, the adequacy of the remedy otherwise available, the relevancy of the source, and the possibility of establishing by other means that which it is alleged the source requested will tend to prove. 735 ILCS 5/8-906; Pawlaczyk, 189 Ill.2d at 188, 724 N.E.2d at 908.

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1. Relevance of material to case at bar

The Statute specifically states that the party seeking disclosure shall allege that the specific information sought is relevant to the proceedings. 735 ILCS 5/8-904. The court in People v. Pawlaczyk addressed the issue of relevancy, holding that “section 8-904 requires only a showing that the information requested is ‘relevant to the proceedings’ . . . in which the information is sought. 189 Ill.2d at 193, 724 N.E.2d at 911. The court defines “relevant” as a fact that “tends to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Id.; People v. McKee, 2014 IL App (3d) 130696 ¶ 13, 24 N.E.3d 75, 43 Media L. Rep. 1123 (2014).

.  For example, in Pawlaczyk, which involved a grand jury proceeding on a potential charge of perjury against city officials, the defendants claimed that since the information sought was not relevant to the libel proceeding in which the defendants allegedly made the perjurious remarks, the privileged information was not relevant. 189 Ill.2d at 192-93. The court concluded that the information must be relevant to the proceeding in which the information is sought, the perjury proceeding in this case, regardless of its relevance to the proceeding in which the perjurious statements were made. Id. at 193-94. Lastly, the court rejected any assertion that the privileged information must be “critically relevant” to the proceedings at issue. Id. at 195.

Applying the standard set forth in Pawlaczyk, the court in Kelley v. Lempesis, No. 13-cv-4922, 2015 WL 4910952 (N.D. Ill. Aug. 17, 2015) found the defendant in a civil suit alleging sexual abuse satisfied the Statute’s “threshold relevance standard for divesting the reporter’s privilege,” where he sought video outtakes from a news story about his alleged conduct that “may tend to make any one of the elements of sexual abuse and battery more or less probable. . . .”  Id. at *3.  The court rejected broadcaster’s argument that privileged information had to be admissible at trial to qualify as “relevant” for purposes of the Statute.  Id. at *4.

On the other hand, in People v. McKee, a criminal prosecution for first degree murder, even though the circuit court acknowledged that “the information being sought was seemingly off topic with regard to the murder charges,” it found the information pertained to whether a “leak” to the reporter violated Illinois law.  Reversing the lower court’s divestiture order, the appellate court held “[a]s a matter of statutory construction, relevance to such collateral matters is not sufficient to satisfy section 8–904‘s threshold requirement that the sought-after information be relevant to the proceedings in which it is being sought.”  2014 IL App (3d) 130696 ¶ 14. See also Illinois v. Johnson, 11 Media L. Rep. 1101, 1102 (Ill. Cir. Ct. 1984) (quashing a criminal defendant’s subpoena for materials relating to a WBBM broadcast where relevance and admissibility of reporter’s evidence was questionable).

Some courts have found speculation that a reporter’s testimony “may” “potentially” be relevant is insufficient to abrogate the privilege; a “showing of potential relevance will not suffice.” Neal v. City of Harvey, Illinois, 173 F.R.D. 231, 234, 25 Media L. Rep. 2403 (N.D. Ill. 1997); see also United States v. Lloyd, 71 F. 3d 1256, 1268 (7th Cir. 1995) (affirming lower court’s decision to quash a speculative subpoena); Illinois v. Fort, 15 Media L. Rep. 2251, 2253-54 (Ill. Cir. Ct. 1988) (quashing subpoena served on reporter and news station seeking information defendants believed “may be useful in the cross-examination of anticipated witnesses,” because potential prior inconsistent statements of such witnesses and were not “relevant to the ultimate issues” in the case, nor “essential to protect the public interest implicated”).

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2. Material unavailable from other sources

In Illinois, in order for a court to issue an order granting disclosure, the material or information sought must be unavailable from other sources. Section 8-907 of the Statute provides that “[a]n order granting divestiture of the privilege . . . shall be granted only if the court, after hearing the parties, finds . . . that all other available sources of information have been exhausted . . . .” 735 ILCS 5/8-907. Illinois courts have strictly applied this component of the test. See, e.g., In re Special Grand Jury Investigation, 104 Ill. 2d 419, 428–29, 472 N.E.2d 450, 454 (1984) (even where a compelling public interest found, and information sought was directly relevant to the grand jury’s inquiry of who leaked information to the reporter, court found reporter’s privilege barred grand jury subpoena to reporter because other sources of the information were potentially available and had not yet been exhausted); In re Arya, 226 Ill. App. 3d 848, 862, 589 N.E.2d 832, 841 (1992) (reversing divestiture order for failure to exhaust all other available sources of information despite finding public interest in videotapes and notes containing interviews relating to a murder investigation, including a confession by an unindicted suspect; “legislature intended divestiture of a reporter’s privilege to be the last resort to get the sought-after information”).

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a. How exhaustive must search be?

The legislature intended to allow access to privileged information only as a last resort. As such, in order to gain access to potentially privileged information, the Statute requires a petitioner to prove that it has exhausted all other available sources. 735 ILCS 8-907(2). Illinois courts have held that “available sources” as stated in the Statute means those sources that are identified or known, or those sources that are likely to become identified or known as a result of a thorough and comprehensive investigation. See, e.g., In re Arya, 266 Ill. App. 3d 848, 589 N.E.2d 832 (1992).

 

The exhaustion of alternative sources requirement does not require the State, in a criminal case, to “conduct[] an undercover investigation or us[e] informants in order to obtain evidence from witnesses who do not wish to speak to the police . . . law enforcement procedures or methods of investigation do not constitute sources of information; instead, these methods produce sources of information.” Id. at 859, 589 N.E.2d at 839.  On the other hand, the court held the State had to “satisfy the court that its investigation has been sufficiently thorough and comprehensive that further efforts to obtain the sought-after information would not likely be successful.  It is not sufficient investigation for the State to merely assert that its investigation has not revealed the information sought.” Id. at 861, 589 N.E.2d at 840 (reversing divestiture order where record insufficient to support exhaustion finding); In re Special Grand Jury Investigation, 104 Ill. 2d 419, 428–29, 472 N.E.2d 450, 454 (1984) (other sources of the information were potentially available and had not yet been exhausted; more than a showing of inconvenience to the investigator is required before a reporter can be compelled to disclose his sources).

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

Illinois courts have not adopted a legal standard for determining exhaustion.  Instead, the Illinois Supreme Court has said that “the extent to which an investigation must be carried before the reporter’s privilege should be divested . . . depend[s] on the facts and circumstances of the particular case.” In re Special Grand Jury Investigation, 104 Ill. 2d 419, 427, 472 N.E.2d 450, 453-54 (1984); In re Arya, 226 Ill. App. 3d 848, 855, 589 N.E.2d 832, 836 (1992).

 

“[W]hile courts require exhaustion of sources, none have required . . . the State in a criminal investigation to prove exhaustion of ‘alternative sources’ of information by either conducting an undercover investigation or using informants in order to obtain evidence from witnesses who do not wish to speak to the police.” Id. at 859, 589 N.E.2d at 839.  On the other hand, the “legislature did not intend to compel reporters to become investigators for the State or anyone else. Accordingly, in order to satisfy the ‘exhaust all other available sources’ requirement of section 8-907(2) of the [Statute], a petitioner must satisfy the court that its investigation has been sufficiently thorough and comprehensive that further efforts to obtain the sought-after information would not likely be successful.” Id. at 861, 589 N.E.2d at 841.

 

Thus, to prove it has exhausted all its available sources, a petitioner must generally call other witnesses that possess the information before divesting a reporter of his privilege.  In re Special Grand Jury Investigation, 104 Ill. 2d at 427, 472 N.E.2d at 453-54; see, e.g., Kelley v. Lempesis, No. 13-cv-4922, 2015 WL 4910952 (N.D. Ill. Aug. 17, 2015) (quashing subpoena to broadcaster where issuing party “has not presented any evidence of actions he undertook to obtain the requested information from other sources before issuing the . . . subpoena”; party could have deposed witness with same information “but did not because he had hoped to receive [broadcaster’s] video outtakes recording [the witness’] statements”); see also Neal v. City of Harvey, Ill., 173 F.R.D. 231, 233, 25 Media L. Rep. 2403 (N.D. Ill. 1997) (quashing subpoena because information available from witnesses other than reporter); United States v. Lopez, 14 Media L. Rep. 2204, 1987 WL 26051 (N.D. Ill. 1987) (quashing criminal defendant’s subpoena for outtakes because of defendant’s failure to demonstrate outtakes contained information unavailable from other sources).

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c. Source is an eyewitness to a crime

The Illinois reporter’s privilege has been found to be inapplicable when a reporter personally witnessed an occurrence. See generally Alexander v. Chicago Park District, 548 F. Supp. 277 (N.D. Ill. 1982).

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3. Balancing of interests

The Statute requires a judicial balancing of interests in determining whether to quash a subpoena. In United States v. Bingham, for example, the court balanced the defendant’s need for the material against the reporter’s interest in protecting his source. 765 F. Supp. 954, 959 (N.D. Ill. 1991). The court held that the public has an interest in “the maintenance of a vigorous, aggressive and independent press capable of participating in robust, unfettered debate over controversial matters, an interest which has always been a principal concern of the First Amendment . . . . Reporters should be encouraged to investigate and expose, free from unnecessary government intrusion, evidence of criminal wrongdoing.” Id. at 957 (internal citation omitted). The public’s interest in preserving a defendant’s constitutional rights to a fair trial should be balanced against the public’s interest in a free press. Id. at 959; see also In re Special Grand Jury Investigation, 104 Ill. 2d 419, 472 N.E.2d 450 (1984) (recognizing a clear legislative intent to create a standard which balances the reporter’s First Amendment rights against the public interest in the information sought and the practical difficulties in obtaining the information elsewhere).

 

Furthermore, even if the grounds for divesting the privilege have been established, “the court should narrowly tailor the order to require production of only that information for which the petitioner (here, the State) has met all the statutory prerequisites,” and if necessary, “should scrutinize the material in camera to ensure that its production does not violate the protections the legislature intended to provide reporters.”  In re Arya, 226 Ill. App. 3d 848, 862, 589 N.E.2d 832, 841 (1992).

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4. Subpoena not overbroad or unduly burdensome

The Illinois Code of Civil Procedure provides that “[f]or good cause shown, the court on motion may quash or modify any subpoena or, in the case of a subpoena duces tecum, condition the denial of the motion upon payment in advance by the person in whose behalf the subpoena is issued of the reasonable expense of producing any item therein specified.” 735 ILCS 5/2-1101; see also Ill. Sup, Ct. Rule 201(c) (trial court may deny a discovery request “to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or oppression”).  “A court should grant a motion to quash a subpoena if a request is oppressive, unreasonable, or overbroad.” In re Commitment of Clark, 2014 IL App (1st) 133040, 14 N.E.3d 617 (2014) (quoting People v. Mitchell, 297 Ill.App.3d 206, 209, 696 N.E.2d 849 (1998)); People v. Teller, 207 Ill. App.3d 346, 565 N.E.2d 1046 (1991) (affirming order quashing discovery subpoena duces tecum; “a court should deny a discovery request not only when the material requested is irrelevant or immaterial but also when the request is oppressive” and trial court properly found “the subpoena was nothing more than ‘a general fishing expedition’”).

Under Federal Rule of Civil Procedure 45(d)(1), “a party or attorney responsible for issuing and serving a subpoena must take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena” and the court “must enforce this duty and impose an appropriate sanction[.]”  Under Rule 45(d)(3)(A)(iii) and (iv), the court “must” quash a subpoena that “requires disclosure of privileged or other protected matter, if no exception or waiver applies”; or “subjects a person to undue burden.”  Whether a subpoena subjects a witness to an undue burden “requires a court to balance the interests served by demanding compliance with the subpoena against the interests furthered by quashing it; this process of weighing a subpoena’s benefits and burdens calls upon the trial court to consider whether the information is necessary and whether it is available from any other source.  It obviously is a highly case specific inquiry and entails an exercise of judicial discretion.”  9A Wright, Miller, et al., Fed. Prac. & Proc. Civ. § 2463.1 (3d ed.)  (emphasis added).

While casting doubt on the existence of a federal reporter’s privilege, the Seventh Circuit in McKevitt v. Pallasch, opined that an appropriate application of Rule 45(c) to subpoenas upon the press would pay due regard to the First Amendment concerns underlying the federal common law reporter’s privilege. 339 F.3d 530, 533 (7th Cir. 2003). “Nothing in McKevitt suggests that a reporter’s notes are discoverable in civil litigation simply because the reporter interviewed a party to that litigation.” Hobley v. Burge, 223 F.R.D. 499, 505 (N.D. Ill. 2004) (quashing subpoena pursuant to Fed. R. Civ. P. 45(c)).

Quashing a subpoena under Rule 45, the district court in Patterson v. Burge, 33 Med. L. Rep. 1200 (N.D. Ill. 2005), relied upon many of the same policy underpinnings that support the statutory and constitutional reporter’s privileges: “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.” Id. at 1203; see also Hobley, 223 F.R.D. at 505 (“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”); Young v. City of Chicago, No. 13 C 5651, Dkt. No. 234, pp. 4-5 (N.D. Ill., May 23, 2017) (“the press has an interest in not being forced into service for the convenience of every litigant, and the compulsory disclosure of outtakes, if ordered capriciously, would expose the press to burden and harassment—not to mention the chilling effect on the press’ artistic and intellectual freedom, when it conducts an interview and decides what to air and what not to air, to make choices about what it wishes to publicize and what it wishes to keep confidential”).  But see Mosely v. City of Chicago, 252 F.R.D. 421, 427, 436 (N.D. Ill. 2008) (“subpoenas to journalists are not to be subjected to an analysis under Rule 45 that differs from that applied when the subpoena is directed to a non-journalist”; dismissing Hobley’s reliance on important role of news gathering); Wilson v. O’Brien, No. 07 C 3994, 2009 WL 763785, at *10 (N.D. Ill. Mar. 20, 2009) (to find subpoena was not reasonable under the circumstances under Rule 45(c) “would be tantamount to promulgating a First Amendment federal reporter's privilege with respect to non-confidential information” and “contrary to McKevitt”); Taylor v. City of Chicago, No. 14 C 737, 2015 WL 6561437, at *10 (N.D. Ill. Oct. 29, 2015).

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5. Threat to human life

Rule 45 of the Federal Rules of Civil Procedure indirectly addresses this point by addressing the undue hardship a person subject to the subpoena may encounter. Fed. R. Civ. P. 45(c)(3)(B).

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6. Material is not cumulative

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7. Civil/criminal rules of procedure

The Illinois Code of Civil Procedure, 735 ILCS 5/1-101, et seq., contains the rules of procedure in civil cases. The Reporters Privilege Statute is set forth at 735 ILCS 5/8-901, et seq.  The Illinois Code of Criminal Procedure, see 725 ILCS 5/100-1, et seq., contains the rules of procedure in criminal cases.  The Illinois Supreme Court Rules and Local Rules of each Illinois Judicial District contain additional procedural rules.

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8. Other elements

There are no additional elements to be met before the privilege can be overcome.

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C. Waiver or limits to testimony

Although the Statute does not contain a waiver provision, courts have generally held that publication of otherwise privileged source material waives the privilege only as to the specified information that has been published or broadcast. See, e.g., People ex. rel. Scott v. Silverstein, 89 Ill. App. 3d 1039, 1044, 412 N.E.2d 695 (1980) (fact that reporter had revealed some sources did not constitute waiver of privilege); Illinois v. Fort, 15 Media L. Rep. 2251, 2254 (Ill. Cir. Ct. 1988).

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1. Is the privilege waivable?

Despite the lack of a waiver provision in the Statute, the Illinois courts have indicated that the Statute’s protections can be waived under a fact-specific analysis.  See, e.g., People ex. rel. Scott v. Silverstein, 89 Ill. App.3d 1039, 412 N.E.2d 692 (1980) (rejecting waiver argument); Simon v. Northwestern Univ., 321 F.R.D. 328, 45 Media L. Rep. 1961 (N.D. Ill. 2017) (accepting waiver argument).

Given the dearth of case law addressing waiver of the privilege, the Silverstein court looked to other evidentiary privileges, such as attorney-client, psychiatrist-patient, and informer’s privileges, which have more defined waiver provisions. 89 Ill. App.3d at 1043. The court found that these privileges and their waivers are not analogous to the reporter’s privilege because they refer to confidential information only. In contrast, the reporter’s privilege extends non-confidential information as well. Id. In addition, the reporter’s privilege is unique in that it plays an important role in the exchange of information between the press and the public, whereas the other privileges only involve the exchange of information between individuals.  Id.

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2. Elements of waiver

Although the Statute does not contain elements constituting waiver of the privilege, Illinois courts have held that publication of otherwise privileged source material waives the privilege only as to the specified information that has been published or broadcast. See Illinois v. Fort, 15 Media L. Rep. 2251, 2254 (Ill. Cir. Ct. 1988) (stating that publication of a given source material will not be construed as a waiver of the privilege as to other sources in possession of the reporter); see also People ex. rel. Scott v. Silverstein, 89 Ill. App.3d 1039, 412 N.E.2d 692 (1980).

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a. Disclosure of confidential source's name

There is no Illinois statutory or case law specifically addressing waiver of the privilege by disclosure of a confidential source’s name. The Statute protects both confidential and non-confidential material.

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b. Disclosure of non-confidential source's name

There is no Illinois statutory or case law specifically addressing waiver of the privilege by disclosure of a non-confidential source’s name. The Statute protects both confidential and non-confidential material.

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c. Partial disclosure of information

Illinois courts have held that publication of otherwise privileged source material waives the privilege only as to the specified information that has been published or broadcast. See Illinois v. Fort, 15 Media L. Rep. 2251, 2254 (Ill. Cir. Ct. 1988). In People ex. rel. Scott v. Silverstein, 89 Ill. App.3d 1039, 412 N.E.2d 692 (1980), the appellate court stated that the disclosure of general information and sources in affidavits, on television, and to two law enforcement officials did not constitute a waiver—suggesting that waiver of the privilege depends on the degree of specificity of the information disclosed and the size of the audience to which the reporter disclosed the information. See id. at 1044 (quoting Altemose Constr. Co. v. Building & Constr. Trades Council of Phila., 443 F. Supp. 489, 491 (E.D. Pa. 1977), which states that “[t]he submission of the affidavits to two law enforcement functionaries by the affiants is a far cry from thousands of occupants opening the windows of their respective apartments and shouting a message or the world to hear”).  The Silverstein court did not commit to a bright line rule regarding waiver; it confined its determination to the particular facts of that case.

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d. Other elements

In People ex. rel. Scott v. Silverstein, 89 Ill. App.3d 1039, 412 N.E.2d 692 (1980), the court held that a reporter’s “regular contacts” with an Assistant Attorney General were within the role of a newspaper reporter and that information given to the Assistant Attorney General by the newspaper reporter did not constitute a waiver of the reporter’s privilege.  However, “[i]f ‘[the reporter] abandoned the role of newspaper reporter and assumed the duties of an investigator,’ then arguably he waived his reporter’s privilege.” Id. at 1045.

 

In holding that a documentary filmmaker who had joined plaintiff’s legal team waived the right to assert the reporter’s privilege in response to defendant’s subpoena, the district court in Simon v. Northwestern Univ., 321 F.R.D. 328, 45 Media L. Rep. 1961 (N.D. Ill. 2017) noted that “[t]he Statute is silent on waiver,” and “the only guidance the Silverstein court provided on what does constitute waiver is the statement that a reporter arguably waives the privilege when she acts outside of the scope of a reporter and assumes the duties of an investigator.” The court held that when the filmmaker “filed an appearance on Plaintiff’s case, he abandoned the role of reporter and transitioned to the role of legal advocate” and could not “artificially divest himself of that status in order to take advantage of the reporter’s privilege.”  Id. at 332.  A waiver under Silverstein is not limited to “an express disclosure of privileged information to a third party” and “acting as a reporter and a lawyer on the same matter” was “the equivalent of an explicit waiver.”  Id. at 333-34.

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3. Agreement to partially testify act as waiver?

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

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VII. What constitutes compliance?

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A. Newspaper articles

There are no Illinois cases that discuss authenticating the materials.  Cf. People v. Palacio, 240 Ill. App. 3d 1078, 1091-92, 1102, 607 N.E.2d 1375, 1383, 1389-90 (1993) (holding Statute did not apply to defendant’s trial subpoena asking only that reporter “confirm the conversation [he] had already written about in his column and, perhaps, to answer questions about [a] conversation with the prosecutor beyond what [he] wrote in his column,” since it did not call for disclosure of any sources.  However, court held that “special witness doctrine” applied and that defendant “could have asked the prosecutor whether he would stipulate to the accuracy of [reporter’s] column” which “would have eliminated any need for [reporter’s] testimony”).

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B. Broadcast materials

The Northern District of Illinois addressed the issue of material that was both broadcast and not broadcast. United States v. Bingham, 765 F. Supp. 954, 956 (N.D. Ill. 1991). The interview that was broadcast was turned over to the court in response to a subpoena duces tecum, but NBC refused to turn over the un-broadcast outtakes from the interview. Although the court did not address the specific procedure of turning over material that was aired, the court did require that the outtakes portion not aired be subject to an in camera review in order to rule accurately on the motion to quash the subpoena. Id. The court held that because the party impeaching a witness under Federal Rule of Evidence 613 must know the substance of the prior inconsistent statement, the defense counsel must have access to the outtakes. Id. at 957. Instead of allowing the entire video to be presented at trial, however, the court ordered the video to be transcribed and turned over to the parties. Id. at 959.

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C. Testimony vs. affidavits

No Illinois statutory or case law specifically states a procedure for replacing in-court testimony for sworn affidavits, but People v. Pawlaczyk contains some guidance.  There, the reporter filed an affidavit for another proceeding confirming her conversation with the source but refusing to reveal the name of the source pursuant to the Statute. People v. Pawlaczyk, 189 Ill. 2d 177, 180, 724 N.E.2d 901 (2000). In a prior proceeding, the circuit court divested the reporter of her statutory privilege and ordered her to divulge the source’s name. Id. at 182. Instead of testifying at trial, the reporter filed an affidavit confirming the source’s name. Id.; see also Maple Lanes, Inc. v. News Media Corp., 322 Ill. App. 3d 842, 843 (2001) (allowing a reporter to file an affidavit confirming that she wrote the article and accurately quoted her sources).

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D. Non-compliance remedies

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1. Civil contempt

Section 8-909 of the Statute states that “[a] person refusing to testify or otherwise comply with the order to disclose the source of the information as specified in such order, after such order becomes final, may be adjudged in contempt of court and punished accordingly.” 735 ILCS 5/8-909. For example, in People v. Slover, the trial court found that unpublished photographs were not privileged and found the reporter “in direct civil contempt for refusing to deliver all unpublished photographs concerning the murder investigation.” 323 Ill. App. 3d 620, 622, 753 N.E.2d 554, 556 (2001). The reporter refused to produce the photos and was sentenced to jail pending compliance. Id. at 623, 753 N.E.2d at 556. The reporter appealed, and the appellate court reversed the judgment ordering the production of the photographs and the contempt finding, remanding the case to the trial court. Id. at 625, 753 N.E.2d at 558. In In re Arya, the trial court found the reporter in contempt when he refused to obey an order to produce videotapes and notes and ordered him jailed until he complied with the order. 226 Ill. App. 3d 848, 850, 589 N.E.2d 832, 833 (Ill. App. Ct. 1992). As in Slover, the reporter appealed, and the order was vacated and remanded. Id.

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a. Fines

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

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b. Jail

In Illinois, reporters have been jailed when found in contempt for not complying with an order to disclose or hand over information the reporters deemed privileged. See People v. Slover, 323 Ill. App. 3d 620, 753 N.E.2d 554 (2001) (jail sentence suspended pending appeal); In re Arya, 226 Ill. App. 3d 848, 589 N.E.2d 832 (1992) (reporter jailed pending appeal). In both of these cases, however, the findings of contempt and the jail sentences were vacated or reversed by an Illinois appellate court.

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2. Criminal contempt

Although the Statute provides a contempt provision, there are no Illinois cases addressing criminal contempt. The Statute allows the person refusing to comply with an order to disclose the source of the information to be held in contempt of court and punished accordingly. 735 ILCS 5/8-909.

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3. Other remedies

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

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VIII. Appealing

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A. Timing

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1. Interlocutory appeals

The Illinois Supreme Court has held that a trial court’s order, made as a preliminary discovery order in a pending suit, is interlocutory in nature and not subject to review under Illinois Supreme Court Rule 301, which provides for appeals from final judgments as a matter of right, or under Illinois Supreme Court Rules 306, 307, or 308, which provide for appeals from specific interlocutory orders.’ People ex. rel. Scott v. Silverstein, 87 Ill. 2d 167, 429 N.E.2d 483 (1981).

In Silverstein, defendant subpoenaed a newspaper reporter for his deposition and production of certain documents; the reporter’s motion to quash pursuant to the Statute was denied.  The Illinois Supreme Court held that a preliminary discovery order denying assertion of the statutory privilege is not appealable because it is reviewable on appeal from the final order.  “[A]n order cast in terms of a contempt proceeding imposing sanctions is a final and appealable order and has been held to be an appropriate method for testing pretrial discovery orders.” Id. at 171-72, 429 N.E.2d at 486. Although a sanction for contempt occurs within the context of another proceeding and seems interlocutory, it is an independent hearing, collateral to the case in which it arises. Id. Thus, an interlocutory order requiring a reporter to disclose information as a preliminary discovery order is unappealable until it results in a judgment of contempt, including a fine or imprisonment. Id. at 174, 429 N.E.2d at 487.

Orders divesting reporters of the privilege are final and appealable when divestiture was the sole purpose of the proceeding. People v. Pawlaczyk, 189 Ill. 2d 177, 187, 724 N.E.2d 901, 908 (2000) (special prosecutor initiated separate chancery actions “for the specific purpose of divesting the reporters of the privilege created by the Act”). When “nothing remains to be done in the proceedings except to execute the judgment of the trial court . . . [t]his court possesses the necessary jurisdiction to decide defendants’ appeal.” Id.

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2. Expedited appeals

After the docketing statement is filed with the reviewing court, the court on its own motion or on the motion of a party may place the case on accelerated docket for good cause shown. This motion shall contain an affidavit stating the reasons for the expedited appeal. Ill. Sup. Ct. R. 311. There are no special considerations that affect news media subpoenas.

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B. Procedure

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1. To whom is the appeal made?

Illinois Supreme Court Rule 301 states that “[e]very final judgment of a circuit court in a civil case is appealable as of right” and “initiated by filing a notice of appeal.” Ill. Sup. Ct. R. 301. The rule also goes on to state that “[n]o other step is jurisdictional.” Id. Illinois Supreme Court Rule 306 governs appeals from orders of the circuit court by petition for leave to appeal to the Appellate Court. Leave to appeal from the Appellate Court to the Illinois Supreme Court is governed by Illinois Supreme Court Rule 315.

An appeal from a municipal, public, governmental, or quasi-municipal corporation, or by a public officer proceeds to the trial court, reviewing court, or reviewing judge pursuant to Illinois Supreme Court Rule 305(h).

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2. Stays pending appeal

The Statute states that the “Privilege continues during pendency of appeal.” 735 ILCS 5/8-908. The court may stay the enforcement of judgment or an judicial order upon just terms. The application of stay must be made to the trial court, or in the alternative, the motion for a stay is made to the reviewing court or judge when application to the trial court is not practical pursuant to Illinois Supreme Court Rule 305(a), (d).v

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3. Nature of appeal

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

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4. Standard of review

The Illinois Supreme Court held that the Court will only “disturb the lower court’s findings under the statute only if they are against the manifest weight of the evidence.” People v. Pawlaczyk, 189 Ill. 2d 177, 188, 724 N.E.2d 901, 908 (2000).  Illinois federal courts have reviewed the propriety of quashing a subpoena under the abuse of discretion standard. United States v. Lloyd, 71 F.3d 1256, 1268 (7th Cir. 1995); United States v. McCollom, 815 F.2d 1087, 1089 (7th Cir. 1987). This is because the courts afford the trial judge “great deference” on appeal with respect to evidentiary rulings because of his “first-hand exposure to the witnesses and evidence as a whole, and because of his familiarity with the case and ability to gauge the likely impact of the evidence in the context of the entire proceeding.” United States v. Torres, 977 F.2d 321, 329 (7th Cir. 1992).

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5. Addressing mootness questions

Illinois courts have held that an appeal is not moot even when the trial or grand jury session for which a reporter was subpoenaed has concluded. For example, in People v. Palacio, a reporter appealed the trial court’s denial of his motion to quash the subpoena requiring him to testify at the hearing on defendant’s post-trial motion. 240 Ill. App. 3d 1078, 1091, 607 N.E.2d 1375, 1382 (1993). The defendant filed a motion to dismiss the reporter’s appeal as moot, arguing that because the reporter answered the questions put to him after the trial court denied his motion to quash, the court could grant the reporter no relief even if the trial court’s order was incorrect. Id. The court denied defendant’s motion to dismiss the reporter’s appeal as moot, holding that the great public interest exception to the mootness doctrine applies. Id.; see also In re A Minor, 127 Ill. 2d 247, 257, 537 N.E.2d 292, 296 (1989)) (holding that the great public interest exception to the mootness doctrine applied in the case and that “the interest in the publication of newsworthy information-- [is] of surpassing public concern”).

Similarly, a case can still be appealed as a controversy “capable of repetition but evading review” even when the trial or grand jury session for which a reporter was subpoenaed has concluded. To receive the benefit of this exception, the complaining party must demonstrate that: (1) the challenged action is in its duration too short to be fully litigated prior to its cessation and (2) there is a reasonable expectation that the same complaining party would be subjected to the same action again. People v. Bailey, 116 Ill. App. 3d 259, 261-62, 452 N.E.2d 28, 30-31 (1983) (citing Gannett Co. v. Depasquale, 443 U.S. 368, 377, 99 S. Ct. 2898, 2904 (1979)). In cases involving court-ordered restrictions on the reporting of judicial proceedings, Illinois courts follow the United States Supreme Court which has regularly found the restrictions to be “capable of repetition, yet evading review.” .

For example, in Palacio, the reporter complied with the trial court’s order to testify; the appellate court held the issue before it was one that involved an event of short duration, capable of repetition yet evading review, commenting that, “given the important stakes involved, we decline to require a news media representative to subject himself or herself to the penalties of contempt when challenging an order like the one before us in the blind hope that an appellate court will conclude the underlying order was erroneous and vacate those penalties.” People v. Palacio, 240 Ill. App. 3d at 1091, 607 N.E.2d at 138.

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6. Relief

Illinois Appellate Courts have vacated and reversed contempt citations with remand to the trial court to reconsider the issues (see People v. Slover, 323 Ill. App. 3d 620, 624, 753 N.E.2d 554, 556-57 (2001); In re Arya, 226 Ill. App. 3d 848, 850, 589 N.E.2d 832, 833(1992)), and have reversed divestiture orders (see People v. McKee, 2014 IL App (3d) 130696, 24 N.E.3d 75, 43 Media L. Rep. 1123 (2014)).  In addition, the courts have reversed decisions denying a motion to quash the subpoena or upheld the motion to quash the subpoena when the subpoenaing party has not met its burden. See, e.g., In Re Special Grand Jury Investigation, 104 Ill. 2d 419, 472 N.E.2d 450 (1984); Cukier v. American Medical Ass’n, 259 Ill. App. 3d 159, 630 N.E.2d 1198 (1994); United States v. Lloyd, 71 F.3d 1256 (7th Cir. 1995).

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IX. Other issues

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A. Newsroom searches

There is no Illinois statutory or case law addressing this issue.  However, the Illinois Code of Criminal Procedure governing the grounds for issuing a search warrant provide special protections for the news media.  Where the “things to be seized” under the warrant “are the work product of, or used in the ordinary course of business, and in the possession, custody, or control of any person known to be engaged in the gathering or dissemination of news for the print or broadcast media, no judge may issue a search warrant” unless the general requirements for issuing a search warrant are satisfied, and “there is probable cause to believe that:  (1) such person has committed or is committing a criminal offense; or (2) the things to be seized will be destroyed or removed from the State if the search warrant is not issued.”  725 ILCS 5/108-3(b).  See People v. Palacio, 240 Ill.App.3d 1078, 1098, 607 N.E.2d 1375, 1387 (1993) (reporter’s privilege and section 108-3(b) “make[] clear that the General Assembly views reporters as playing important, special roles in our society-roles that deserve special protection”).

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B. Separation orders

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

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C. Third-party subpoenas

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

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D. The source's rights and interests

In Illinois, no source has asserted the statutory privilege provided by the Illinois statute, resulting in no Illinois statutory or case law addressing this issue.

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