The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Free Speech

TV Station Must Turn Over Outtakes from Interviews for Use in Civil Case


From Gaines v. Chicago Bd. of Ed., decided Friday by Magistrate Judge Sheila Finnegan (N.D. Ill.); note that the result might have been different in other federal circuits, which do recognize journalist's privileges of varying strength:

Plaintiffs Asia Gaines, for herself and as next friend of her minor child JC, filed suit against the Chicago Board of Education, Kristen A. Haynes, and Juanita Tyler to recover for physical and psychological injuries JC allegedly suffered in connection with a beating at his elementary school on September 20, 2018….

Plaintiffs allege that on September 20, 2018, Haynes (JC's homeroom teacher) invited Tyler (a distant relative of JC) to come to the school for the purpose of beating JC with belts in the boys bathroom. According to Plaintiffs, Haynes supplied the belts and physically forced JC to go to the bathroom with Tyler, who conducted the beating.

A few weeks after this incident, Tyler spontaneously answered questions from Savini on camera as she was walking down the street after leaving the courthouse following a hearing in the criminal matter related to the case. Also around this time, JC sat for an extended recorded interview with Savini in which he described what occurred during the incident. A small portion of the statements made by both Tyler and JC appeared in the publicly aired story, along with statements from others whom Savini also interviewed. (See; …

Plaintiffs served subpoenas on CBS Broadcasting Inc. and Savini seeking "[a]ll video outtakes of CBS2 Chicago reporter Dave Savini's complete interviews with [JC] and Juanita Tyler in 2018 and 2019." …

CBS2 argues that Plaintiffs' motion must be denied because the materials they seek are protected from disclosure by a federal common law reporter's privilege. That privilege, CBS2 says, "is grounded 'in a broader concern for the potential harm to the paramount public interest in the maintenance of a vigorous, aggressive and independent press capable of participating in robust, unfettered debate over controversial matters.'" This argument is unavailing because courts within the Seventh Circuit have consistently found that no such reporter's privilege exists. In McKevitt v. Pallasch (7th Cir. 2003), the Seventh Circuit held that the First Amendment offers no protection to news gatherers by which they may refuse to comply with otherwise applicable discovery requests, at least in the context of nonconfidential sources. The court also determined that state-law privileges, specifically the Illinois statutory version of the reporter's privilege, "are not 'legally applicable' in federal-question cases."

Following McKevitt, district courts in Illinois repeatedly have rejected media attempts to quash subpoenas or otherwise withhold materials based on a reporter's privilege in federal question cases…. CBS2 acknowledges this case law and cites no contrary authority supporting its request that the Court "reconsider [the] interpretation and application of McKevitt." Instead, CBS2 concedes that its argument "may be more properly addressed to the appellate court" and so "raises it here to preserve it." In such circumstances, and absent any compelling basis to disregard McKevitt and its progeny, this Court concludes that there is no federal common law reporter's privilege applicable in this case and CBS2 cannot withhold the requested audio/video outtakes on that basis….

CBS2 argues that even if the outtakes are not subject to a federal common law reporter's privilege, the motion to compel is still improper because it would be unduly burdensome to produce them under [Federal Rule of Civil Procedure] 45….

Plaintiffs argue that they have a substantial need for the video/audio outtakes in order to "effectively prosecut[e] and prov[e] their case against Tyler in this civil lawsuit, hav[e] JC's critical statements about what happened during the incident admitted into evidence (since he is the only witness to much of what happened), and impeach[] Tyler at deposition and trial with inconsistent statements from the CBS interview." Plaintiffs believe that Tyler made numerous and possibly contradictory statements to Savini about her participation in the incident with JC, such as first denying and then admitting to being in the bathroom with him. Tyler also may have admitted to the underlying conduct in connection with another battery case she faced in Lake County, Illinois. These are the only recorded statements Tyler ever made regarding the incident.

Plaintiffs view Tyler's unpublished video/audio statements as admissions which they deem "especially important here where Tyler later made various statements to the police and other investigators that directly contradict her statements to CBS in the outtakes as well as [P]laintiffs' account of what happened." Notably, due to circumstances outside of Plaintiffs' control, Tyler's deposition has been delayed and is only recently on track to proceed. Given the more than three and a half year gap between the September 2018 incident and the anticipated deposition, Tyler's recorded statements made close in time to the event are particularly significant. Simply asking Tyler during a deposition what she told Savini is "not an adequate substitute for the audio or video tapes of h[er] conversations" given that "as a party to the case, [Tyler] has an obvious and undeniable motive to color h[er] testimony.

With respect to JC, Plaintiffs say the raw footage of his statements is important because it is the only recorded interview of him speaking about the incident. As this Court has noted, "when a reporter interviews a plaintiff regarding the 'events that are at the epicenter of his complaint[,] the criticality of the plaintiff's statements to the reporter on these issues is beyond debate."

Moreover, JC described in detail what happened "just a few weeks after the incident and contemporaneously with answering questions from various investigators." Plaintiffs intend to use the outtakes "to help demonstrate to Judge Lee that JC's statements about the incident have been consistent and reliable and should be admitted into evidence at trial." See Doe v. U.S. (7th Cir. 1992) (in determining the reliability of a child's out-of-court statement, "the trial judge may consider any evidence that sheds light on whether the child declarant was particularly likely to be telling the truth when the statement was made," including such factors as "spontaneity, consistent repetition, the mental state of the child at the time the statement was made, use of terminology unexpected of a child of similar age, and lack of motive to fabricate.") (internal quotations omitted)….

CBS2 argues that the relative benefit Plaintiffs would receive from the footage is substantially outweighed by the burden to CBS2. The primary burden CBS2 identifies, however, concerns the intrusion into its purported rights under the Illinois reporter's privilege statute. Though CBS2 concedes that the statute is not controlling, it argues that "comity impels federal courts to recognize state privileges where this can be accomplished at no substantial cost to federal substantive and procedural policy." CBS2 reiterates that disclosure of the footage would impair its ability to gather and disseminate newsworthy information to the public, and urges the Court to view this as "a factor" weighing strongly in favor of denying the motion to compel….

[But] CBS2's articulated burden is simply an alternate route to a reporter's privilege, one that relies upon the same rationales that courts in this circuit have rejected….

{CBS2 argues generally that in the past two years, its investigations team "has spent dozens of hours collecting and reviewing footage" relevant to some 19 subpoenas in addition to the subpoenas at issue here. But absent any evidence as to how much time and expense CBS2 would incur to retrieve and produce the outtakes requested in Plaintiffs' specific subpoenas, especially as narrowed, such a generic assertion in no way demonstrates that the burden of compliance would be undue.}

Thanks to the Media Law Resource Center MediaLawDaily for the pointer.