Gaines v. Chicago Board Of Education

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

ASIA GAINES, for herself and as next )

friend of her minor child, “JC,” )

)

Plaintiffs, )

)

v. ) No. 19 C 775

)

THE CHICAGO BOARD OF EDUCATION, ) Judge John Z. Lee

KRISTEN A. HAYNES, and JUANITA ) Magistrate Judge Finnegan

TYLER, )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

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 assert a variety of state and

federal claims, including use of excessive force in violation of 42 U.S.C. § 1983, assault,

battery, conspiracy, and intentional infliction of emotional distress. Currently before the

Court is Plaintiffs’ motion to compel third-party CBS Broadcasting, Inc. to produce raw,

unpublished video/audio footage of statements JC and Tyler made to television reporter

Dave Savini shortly after the incident. For the reasons stated here, the motion is granted.

BACKGROUND

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

https://chicago.cbslocal.com/2019/02/06/george-tilton-elementary-school-student-

beaten-belt/; https://chicago.cbslocal.com/2019/02/07/lawsuit-filed-child-beating-case-

cps-student/, last viewed on April 29, 2022).

On October 26, 2021, 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.”1 (Docs. 188-1, 188-2). CBS2

objected to the subpoenas, prompting Plaintiffs’ motion to compel. Plaintiffs have since

agreed to narrow the scope of the subpoenas to just the video/audio outtake recordings

of the interviews with Tyler and JC. CBS2 insists that this modification is inadequate

because the materials are protected by a reporter’s privilege, and it would be unduly

burdensome to produce them under Rule 45.

DISCUSSION

I. Reporter’s Privilege

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. (Doc.

1 CBS2 is a television station owned and operated by CBS Broadcasting Inc. Plaintiffs also

issued subpoenas to Derek Dalton, a former CBS2 employee, and to CBS, Inc., a non-existent

entity. (Doc. 191, at 3 and n.1).

191, at 3). 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.’” (Id.) (quoting Gonzales v. Nat’l Broadcasting Co., 194 F.3d 29, 33 (2d Cir.

1998)). This argument is unavailing because courts within the Seventh Circuit have

consistently found that no such reporter’s privilege exists. In McKevitt v. Pallasch, 339

F.3d 530 (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. Id. at

532-33. The court also determined that state-law privileges, specifically the Illinois

statutory version of the reporter’s privilege, 735 ILCS 5/8-901, “are not ‘legally applicable’

in federal-question cases.” Id. at 533. See also U.S. Dep’t of Educ. v. Nat’l Collegiate

Athletic Ass’n, 481 F.3d 936, 938 (7th Cir. 2007) (citing McKevitt and other cases when

stating in dictum that “[t]here isn’t even a reporter’s privilege in federal 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. In Tate v. City of Chicago, No. 18 C 7439, 2020 WL

4437853 (N.D. Ill. Aug. 3, 2020), for example, CBS Broadcasting, Inc. moved to quash

subpoenas seeking, among other things, audio/video outtake recordings of the plaintiffs

in a § 1983 case alleging unlawful search, false arrest, and false imprisonment. Id. at *1-

2. Relying on McKevitt, the court found “no basis, in law or in ‘equity,’ for recognizing a

reporter’s privilege,” and held that neither the letter nor the spirit of the Illinois reporter’s

privilege shielded the materials from disclosure. Id. at *2. See also Taylor v. City of

Chicago, No. 14 C 737, 2015 WL 6561437 (N.D. Ill. Oct. 29, 2015) (declining to recognize

a reporter’s privilege rooted in federal common law); Thayer v. Chiczewski, 257 F.R.D.

466, 468-69 (N.D. Ill. 2009) (“disagree[ing]” with the argument that McKevitt “did not

foreclose the potential existence of a journalistic privilege based upon federal common

law or state law.”); Mosely v. City of Chicago, 252 F.R.D. 421, 424-25 (N.D. Ill. 2008)

(rejecting argument for a federal common law reporter’s privilege based on McKevitt’s

strong language questioning the purported basis for such a privilege).

CBS2 acknowledges this case law and cites no contrary authority supporting its

request that the Court “reconsider [the] interpretation and application of McKevitt.” (Doc.

191, at 4). Instead, CBS2 concedes that its argument “may be more properly addressed

to the appellate court” and so “raises it here to preserve it.” (Id.). 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.

II. Rule 45

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 Rule 45. This Court disagrees.

A. Standard of Review

As the Seventh Circuit observed in McKevitt, courts should ensure that a third-

party subpoena “directed to the media, like any other subpoena duces tecum, is

reasonable in the circumstances, which is the general criterion for judicial review of

subpoenas.” 339 F.3d at 533. Under Rule 45, a party that issues a subpoena “must take

reasonable steps to avoid imposing undue burden or expense on a person subject to the

subpoena.” FED. R. CIV. P. 45(d)(1). In determining whether the burden imposed is

“undue,” courts consider a variety of factors including: “(1) the likelihood that compliance

will result in production of the information, (2) whether the discovery is unreasonably

cumulative or duplicative, (3) whether the information sought is readily obtainable from

another, more convenient, less burdensome (but equally reliable) source, and (4) whether

the burden of the proposed discovery outweighs its likely benefit.”2 Tate, 2020 WL

4437853, at *3 (quoting Taylor, 2015 WL 6561437, at *3). This is a “case-specific inquiry”

and since there is “no formula for determining reasonableness,” the decision whether to

quash or enforce a subpoena “rests squarely within the court’s discretion.” Id. (quoting

U.S. v. Banks, 540 U.S. 31, 36 (2003)).

B. Balancing of Benefit and Burden

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.” (Doc. 188,

at 10). 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. (Id. at 4; Doc. 193, at 3). Tyler also may

2 Other factors are whether: “(1) the information requested is relevant; (2) the party

requesting the information has a substantial need for the documents; (3) the document request is

overly broad; (4) the time period the request covers is reasonable; (5) the request is sufficiently

particular; and (6) whether compliance with the request would, in fact, impose a burden on the

subpoenaed party.” Little v. JB Pritzker for Governor, No. 18 C 6954, 2020 WL 1939358, at *2

(N.D. Ill. Apr. 22, 2020).

have admitted to the underlying conduct in connection with another battery case she

faced in Lake County, Illinois. (Doc. 193, at 3). These are the only recorded statements

Tyler ever made regarding the incident. (Id.).

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.” (Doc. 188, at 2, 10). 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. Mosley, 252 F.R.D. at 433.

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. (Doc. 193,

at 3). 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.” Taylor, 2015 WL 6561437, at *9 (quoting

Mosely, 252 F.R.D. at 430). See also Mendez v. City of Chicago, No. 18 C 5560, Doc.

196, Minute Order (December 23, 2019) (ordering CBS to produce video recordings of

the plaintiffs pertaining to the search of their residence and the events that transpired

thereafter because “the statements Plaintiffs made to CBS are relevant to the claims and

defenses in this case.”).

Moreover, JC described in detail what happened “just a few weeks after the

incident and contemporaneously with answering questions from various investigators.”

(Doc. 188, at 5). 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.” (Id. at 5-6; Doc. 193, at 3). See Doe v. U.S., 976 F.2d

1071, 1075 (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 does not seriously dispute the relevancy of the video/audio outtakes given

that the statements JC and Tyler made concern “the subject matter that is at the very

heart of this litigation.” Tate, 2020 WL 4437853, at *3. Nor does CBS2 suggest that Tyler

and JC had any expectation of privacy when they decided to speak with a news outlet.

Instead, 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.” (Doc.

191, at 6) (quoting Northwestern Mem’l Hosp. v. Ashcroft, 362 F.3d 923, 932 (7th Cir.

2004)). 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. (Id. at 9).

CBS2 cites a single case for this proposition. (Doc. 191, at 7) (citing Davis v. City

of Springfield, No. 04-3168, 2009 WL 1161619 (C.D. Ill. Apr. 28, 2009).3 In Davis, the

plaintiff issued a subpoena seeking the identity of the reporter’s confidential informant

and related interview notes. 2009 WL 1161619, at *1. The magistrate judge found that

the reporter’s “ability to gather and report news would be inhibited if [he] could not assure

a confidential source of confidentiality.” Id. at *2. In addition, the information in the

reporter’s notes had been disclosed to a limited number of third parties who could provide

the necessary details to the plaintiff. Id. Based on these factors, the magistrate judge

concluded that the burden to the reporter of revealing a confidential source outweighed

the benefit to the plaintiff. Id. at *3. In affirming this ruling, the district court observed in

a footnote that the magistrate judge also could have considered the Illinois reporter’s

privilege statute, and that this “would be another factor that would indicate that the burden

imposed by disclosure would have been even greater.” Id. at *3 n.1.

This Court is not bound by dicta from a district court decision, and nothing in Davis

changes the Seventh Circuit’s pronouncement in McKevitt that a subpoena directed to

the media is evaluated for reasonableness in the same way as any other subpoena. 339

F.3d at 533. Moreover, the facts in Davis are easily distinguishable from those presented

3 CBS2’s reliance on Kelley v. Lempesis, No. 13 C 4922, 2015 WL 4910952 (N.D. Ill. Aug.

17, 2015), is misplaced because it was a diversity case decided under Illinois state law. In re

Arya, 226 Ill. App. 3d 848, 589 N.E.2d 832 (4th Dist. 1992), likewise was governed by Illinois law.

here. First, Plaintiffs are seeking statements made by parties to this lawsuit, not the

identity of a confidential informant. In addition, Plaintiffs have not requested Savini’s

notes and are only pursuing audio/video outtake recordings of Tyler and JC. (See Docs.

188-1, 188-2) (requesting “video outtakes.”). Finally, there is no dispute that CBS2 has

the pertinent footage in its possession and is “the only source from which [the outtakes]

could readily be obtained.” Tate, 2020 WL 4437853, at *3.

In effect, 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.

See, e.g. Mosely, 252 F.R.D. at 431-32 (rejecting a journalist’s assertion that sources

would “dry up” resulting in “a loss of information to the public” as “speculative,” “illogical,”

and “not comport[ing] with the kind of specific and particularized demonstration courts

have required to establish burden or ‘good cause.’”); Thayer, 257 F.R.D. at 470 & n.5

(finding unpersuasive a journalist’s “work product” and “loss of ‘street cred’” arguments

(regarding his future access to sources) for their absence of evidentiary support or a

“showing of actual burden.”). On the record presented, CBS2’s invocation of the Illinois

reporter’s privilege statute, standing alone, is insufficient evidence of undue burden to

overcome Plaintiffs’ strong showing of substantial need.4 Rather, “[t]he importance of

and need for the information sought by the [Plaintiffs] in the instant case are in inverse

proportion to the burden imposed on [CBS2] if [it is] required to produce audio and video

tapes of the [Savini] interviews. Mosely, 252 F.R.D. at 433.

4 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. (Doc. 191, at 9-10). 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.

CONCLUSION

For the reasons stated above, Plaintiffs’ Motion to Compel (Doc. 188) is granted.

Plaintiffs’ undeveloped request for “attorney’s fees . . . plaintiffs incurred in filing, briefing

and arguing this motion” (Doc. 188, at 14), however, is denied. CBS2 is to produce the

video/audio outtakes of Tyler and JC by May 13, 2022.

ENTER:

Dated: April 29, 2022 SMM Her Vi U fe v

SHEILA FINNEGAN

United States Magistrate Judge

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