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Reporter must turn over prisoner letters

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Reporter must turn over prisoner letters

  • A federal magistrate judge distinguishes between letters a reporter received from a prisoner and the notes he took regarding that prisoner in ruling that the letters but not the notes must be divulged.

Sep. 28, 2004 — A newspaper reporter must turn over three letters he received from a death-row inmate claiming to be a victim of police brutality, a federal magistrate judge has ruled in the prisoner’s lawsuit against a former Chicago police commander and others.

But reporter John Conroy does not have to divulge handwritten notes that he took during interviews with and about the prisoner — a ruling his attorney hailed as a significant victory in light of a 2003 federal appeals court opinion that undermines the protection of a reporter’s privilege.

“We think the opinion was very, very substantial and very favorable to my clients, and to the press in general,” said attorney David Andich, who represents Conroy and the weekly Chicago Reader.

In arguing that forced disclosure of Conroy’s notes would unduly burden the reporter, Andich likened the notes to an attorney’s work product, which ordinarily is exempt from discovery during litigation. A magistrate judge for the U.S. District Court for the Northern District of Illinois in Chicago agreed that the notes were essentially what Andich dubbed “journalistic work product” that must be kept confidential, absent a showing of substantial need by the defendants.

The judge “accepted that concept as being relevant in her analysis in [what was] reasonable under the circumstances,” Andich said.

Despite losing on the issue of whether the prisoner’s letters must be divulged, Conroy and the paper will not appeal the Sept. 17 order.

After receiving letters from and conducting interviews with convicted felon Madison Hobley, Conroy wrote two stories about Hobley and others who claimed to have been tortured by Chicago police. Hobley subsequently sued the police and identified Conroy as someone likely to have information to support his claim. The defendants, in turn, subpoenaed Conroy and the newspaper, seeking any and all statements Hobley may have made to Conroy regarding a 1987 arson.

Andich faced an uphill battle in challenging the subpoena. In the 2003 case McKevitt v. Pallasch, the U.S. Court of Appeals (7th Cir.) ordered three Chicago journalists to produce tape recordings of their interviews with an FBI informant, holding that the First Amendment provided no special protection for the press against subpoenas for information from non-confidential sources. Instead, the court ruled that federal courts in the Seventh Circuit — those in Illinois, Indiana and Wisconsin — should simply determine whether such a subpoena “is reasonable in the circumstances.”

In the Chicago Reader case, the magistrate found that Hobley — like the informant in McKevitt — was not a confidential source, and analogized his letters to Conroy to the tapes at issue in McKevitt . Disputing that “the interests protected by the First Amendment will be jeopardized by requiring production of [the] letters,” the judge ordered Conroy to turn them over.

The reporter’s notes, however, were a different matter. Balancing the burden on Conroy to produce and decipher the notes against the defendants’ purported need for them — which she dismissed as “the classic fishing expedition for something that might be useful” — the judge concluded the subpoena was not reasonable in those circumstances.

Andich said he expects the defendants to appeal the ruling to the federal district court.

(Hobley v. Burge; Media counsel: David W. Andich, Rock Island, Ill.) KK

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