Judge blocks third attempt to subpoena reporter's notes

A federal judge in Seattle Friday quashed the third subpoena served on a reporter by lawyers representing the Chicago Police Department in a civil rights lawsuit, highlighting in her ruling the importance of protecting the First Amendment-based reporter’s privilege not to testify about sources or materials used in the newsgathering process.

Federal District Judge Marsha Pechman in Seattle ruled in favor of reporter Carolyn Nielsen after she was subpoenaed for the third time in September for her notes and her personal correspondence with Thaddeus Jimenez, who was wrongly imprisoned in Chicago for murder in 1994 and exonerated last year.

In her ruling, Pechman wrote that in order to overcome Nielsen’s reporter’s privilege, the police department “must still establish the actual (not potential) relevance of any documents in her possession. They have failed to do so.”

Around the time of Jimenez’s trial and conviction, Nielsen published a series of articles about the seemingly unjust circumstances surrounding the case as part of her graduate studies at Northwestern University, which, according to Nielsen, prompted lawyers to fight for Jimenez's release. After his release, Jimenez sued the police department in Illinois federal court. As part of their defense, lawyers for the department subpoenaed Nielsen multiple times for her notes and correspondence with Jimenez during the time she was developing her stories.

After lawyers served Nielsen with a second subpoena earlier this year, Pechman ruled that Nielsen was protected by her reporter’s privilege and awarded her a protective order against future deposition in the case. Pechman said that based on prior case law in the Ninth Circuit, which includes the Washington State, lawyers for the police department must demonstrate a “compelling need” for the information they seek. In order to meet this burden, the defense must show that the requested material is unavailable from other sources, including documents already in their possession, and that Nielsen’s notes are “clearly relevant to an important issue in the case.”

After Pechman quashed this second subpoena, lawyers for the police department deposed Jimenez to try and obtain the same information they sought from Nielsen; however, when Jimenez revealed that he did not have the documents in his possession, the lawyers re-subpoenaed Nielsen in September, arguing that they had overcome her reporter’s privilege because the documents they sought were not available from other sources, according to Pechman's ruling.

Pechman ruled Friday that lawyers for the police department did not thoroughly examine Jimenez during his deposition and they failed to meet all three criteria needed to overcome the reporter’s privilege in the Ninth Circuit.

“After three motions and over 50 pages of briefing and exhibits, the Court still has no idea what information Defendants contend they will obtain by examination of Nielsen or her correspondence,” Pechman stated. “The conclusion that they are on a fishing expedition is inescapable.”

In response to Pechman’s ruling, Nielsen, who is now a journalism professor at Western Washington University, expressed relief and gratitude, both for herself and for the future of the reporter’s privilege in the Ninth Circuit.

“I’m really happy that it’s over with and that the ruling is a positive ruling for the First Amendment, which was the reason I spent my time and energy fighting this in the first place,” she said. “Judge Pechman’s ruling shows me that the Ninth Circuit also recognizes the reporter’s privilege as valuable and important.”