Cruz v. Guevara et al

Filing 318

MEMORANDUM Opinion and Order. Signed by the Honorable Gabriel A. Fuentes on 11/22/2024. Mailed notice. (lxk, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JOSE CRUZ,
Plaintiff,
v.
REYNALDO GUEVARA, et al.,
Defendants.

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Case No. 23 C 4268
District Judge Georgia N. Alexakis
Magistrate Judge Gabriel A. Fuentes

MEMORANDUM OPINION AND ORDER
In this matter before the magistrate judge on a referral including discovery supervision
(D.E. 49), Defendant Reynaldo Guevara has moved to compel (“Motion to Compel”; D.E. 246)
third-party journalist and filmmaker Margaret Byrne (“Byrne”) to comply with a document
subpoena for materials including her notes, communications, memoranda, audio and video
“outtakes,” and metadata apparently showing her modification and/or “syncing” of audio and
video recordings related to Plaintiff Jose Cruz and an as-yet-unreleased and unpublished
documentary film Byrne is producing about Cook County wrongful convictions involving
Defendant Guevara. The Court has considered Byrne’s written response (“Resp.” D.E. 282), as
well as Guevara’s reply in support of his Motion to Compel (“Reply”; D.E. 292). The Court
decides the Motion to Compel within the broad discretion afforded to magistrate judges to manage
discovery and to promote a just, speedy and inexpensive determination of the matter. Jones v. City
of Elkhorn, Ind., 737 F.3d 1107, 1115 (7th Cir. 2013); Fed. R. Civ. P. 1.
BACKGROUND
Plaintiff’s lawsuit asserts that Defendant Guevara, a former Chicago Police Department
detective, and seven other former police detectives (including one who is deceased), a police

sergeant, a now former assistant state’s attorney, and the City of Chicago (“the City”) caused
Plaintiff to be convicted wrongfully of murder and attempted murder in 1996 in connection with
an October 1993 shooting in which Plaintiff says he was not involved. First Amended Complaint
(“First Am. Cmplt.”; D.E. 44), passim. 1 Plaintiff’s claims stem from his arrest, prosecution and
convictions in that case and assert that various of the Defendants including Guevara fabricated
evidence (including by causing a witness to implicate Plaintiff falsely as one of the shooters in the
October 1993 incident), suppressed exculpatory evidence, fabricated police reports, and
deliberately failed to investigate the shooting so that the actual shooters could be identified. Id. ?
3. Plaintiff alleges that as a result of his wrongful conviction, he spent more than 28 years in prison
as an innocent person. Id. ?? 1-3. Plaintiff alleges that Defendants conspired to deprive him of
his federal constitutional rights and failed to intervene to protect those rights; he asserts counts for
malicious prosecution, intentional infliction of emotional distress, willful and wanton conduct, and
civil conspiracy against Guevara and the seven other former police officer defendants. He also
has made a claim of unconstitutional policies and practices against the City under Monell v. New
York Dep’t of Social Servs., 436 U.S. 658 (1978).
In many respects, Defendant Guevara is at the center of Plaintiff’s allegations. First Am.
Complt. ¶ 3. Plaintiff alleges that “Guevara, together with other Area 5 officers and supervisors,
including the Defendant Officers in this case, framed dozens of innocent men and women for
crimes they did not commit, over the span of at least two decades.” Id. ¶ 134. Plaintiff has alleged
that at least 38 persons “have had their convictions dismissed (or were acquitted) because of

The district court dismissed certain, but not all, of Plaintiff’s claims against the former prosecutor,
Defendant Edward Maloney, on November 12, 2024. (D.E. 309.)
1

2

Defendant Guevara’s misconduct.” Id. ¶ 135. 2 As of a year ago, Cruz was one of at least 20
plaintiffs who had filed federal civil rights lawsuits in this district against Guevara. 3 Defendant
City of Chicago’s Motion to Bifurcate Monell Claim and Stay Monell Discovery (“Bifurcation
Motion”; D.E. 72) at 5 & n.1. In the past year, according to the Court’s review of public dockets
in this district, Guevara was named as a defendant in six more federal civil rights lawsuits alleging
wrongful convictions. 4 The wrongful conviction plaintiffs’ bar currently is alleging that the
number of persons exonerated as a result of Guevara’s alleged misconduct now stands at 46. 5
The extent of wrongful conviction allegations involving Guevara has generated a fair
degree of public interest in the cases and their outcomes. See, e.g., A.D. Quig, “Cook County
commissioners advance settlements tied to disgraced Chicago Detective Reynaldo Guevara,”
Defendant Guevara’s pleaded answer to this allegation in the First Amended Complaint was to assert his
Fifth Amendment right against self-incrimination. Defendant Reynaldo Guevara’s Answer to Plaintiff’s
First Amended Complaint (D.E. 58) at 33.
2

The lawsuits listed by Defendants on October 11, 2023 in a filing in this case are, in addition to the instant
case: Rodriguez v. Guevara, No. 22 C 6141; Gonzalez v. Guevara, No. 22 C 6496; Flores v. Guevara, No.
23 C 1736; Hernandez et al. v. Guevara, No. 23 C 1737; Lugo v. Guevara, No. 23 C 1738; Davilla v.
Guevara, No. 23 C 1739; Abrego v. Guevara, No. 23 C 1740; Martinez v. Guevara, 23 C 1741; Gecht v.
Guevara, 23 C 1742; Rivera v. Guevara, No. 23 C 1743; Mendoza v. City of Chicago, No. 23 C 2441; Diaz
v. Guevara, No. 23 C 2575; Munoz v. Guevara, 23 C 3210; Kwil v. Guevara, No. 23 C 4279; Mulero v.
Guevara, No. 23 C 4795; Nelson Gonzalez v. Guevara, No. 23 C 14281; Cain v. Guevara, No. 23 C 14282;
Andino v. Guevara, No. 23 C 14283; and Santiago v. Guevara, No 23 C 14284. Bifurcation Motion at 5
n.1.
3

4 The six Guevara lawsuits noted by the Court on its review of public dockets since October 11, 2023, are:
Ruben Hernandez v. Guevara, No. 23 C 15375; Tinajero v. City of Chicago, No. 24 C 1598; Kelly v.
Guevara, No. 24 C 5354; Robinson v. Guevara, No. 24 C 5954; Soto v. Foster, No. 24 C 10869; and Ortiz
v. Guevara, No. 24 C 11057.
5 See Ortiz v. Guevara, No. 24 C 11057, Complaint (D.E. 1) ¶ 125 (N.D. Ill. Oct. 28, 2024) (“They are
Jacques Rivera, Juan Johnson, Jose Montanez, Armando Serrano, Jorge Pacheco, Roberto Almodovar,
William Negron, Jose Maysonet, Angel Rodriguez, Santos Flores, Arturo DeLeon-Reyes, Gabriel Solache,
Ariel Gomez, Xavier Arcos, Ricardo Rodriguez, Robert Bouto, Thomas Sierra, Geraldo Iglesias, Demetrius
Johnson, David Gecht, Richard Kwil, Ruben Hernandez, Juan Hernandez, Rosendo Hernandez, Ray
Munoz, David Lugo, Carlos Andino, Daniel Rodriguez, Jaime Rios, Jose Cruz, Marilyn Mulero, Nelson
Gonzalez, Johnny Flores, Adolfo Rosario, Ruby Abrego, Jeremiah Cain, Edwin Davila, Alfredo Gonzalez,
Gamalier Rivera, Madeline Mendoza, John Martinez, Jose Tinajero, Thomas Kelly, Louis Robinson, Oscar
Soto, and Plaintiff Edwin Ortiz.”).

3

Chicago Tribune (Oct. 24, 2024) (https://www.chicagotribune.com/2024/10/23/cook-countycommissioners-advance-settlements-tied-to-disgraced-chicago-detective-guevara/).

Journalists

with an interest in the allegations involving Guevara include the third-party subpoena respondent
on the instant Motion to Compel, an independent filmmaker named Margaret Byrne. Byrne is the
founder, director, producer, and cinematographer at Beti Films, and she is its only full-time
employee. Declaration of Margaret Byrne (“Byrne Decl.”; D.E. 282-1) ? 5. Byrne is currently
directing a film entitled To Catch a Case (apparently also known as “Corruption Capital”), a sixyear project she describes as “a documentary feature focused on the post-conviction process in
Cook County.” Id. ?? 2, 6. Byrne states that the film is not about Plaintiff’s case exclusively, and
that Plaintiff’s case “may or may not be discussed at all in the [f]ilm.” Id. ? 3. Byrne says the film
“follow[s] retired detective Bill Dorsch’s quest to uncover wrongful murder convictions connected
to” Guevara. Id. ? 3; Motion to Compel at 3. With the film now in “post-production,” Byrne says
she continues to engage in interviews, other reporting activities, and ongoing editing. Byrne Decl.
?? 2, 3. So far, Byrne says, she has conducted about 100 interviews and has recorded about 1,000
hours of video footage and 1,000 hours of audio. Id. ? 7. The film apparently has not been
published or released, as it has not been completed, and the record on Guevara’s Motion to Compel
contains nothing further about its contents.
Guevara argues that Byrne possesses information critically important to his defense of this
civil litigation:
Under Plaintiff’s present version of the alleged facts rendered at his deposition, his
theory is that officers generally fabricated evidence, and/or threatened witnesses to
make false identifications in the Antwane Douglas homicide investigation. To this
end, conversations that Plaintiff had with a third party about his case obviously
provides fodder for potential inconsistent statements and admissions. This is
especially so given that Plaintiff appears to have concealed or conveniently “forgot”
during written discovery that he had dozens and dozens of communications with
Ms. Byrne both during and after his release from prison. The critically important
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information possessed by Ms. Byrne is not limited to contradictory statements made
by Plaintiff. Defendants sought to obtain discovery from Plaintiff at his deposition
regarding Plaintiff’s criminal attorney’s efforts to locate witnesses and Plaintiff
invoked attorney client privilege to refuse to answer such questions. Plaintiff is the
“holder” of this evidentiary privilege, and Plaintiff’s former criminal defense
attorney, Fredrick Cohn, is deceased. Given Plaintiff’s refusal to address this issue,
defendants need Ms. Byrne to verify these statements. And, of course, it appears to
be undisputed that [Plaintiff] … provided [extensive] documentary materials to Ms.
Byrne relating to his case which have never been explained or accounted for in this
case. Simply stated, Ms. Byrne cannot be permitted to conceal highly probative
evidence from Defendant in this case.
Motion to Compel at 6. Defendants “vehemently deny” Cruz’s allegations of misconduct and seek
to establish that Cruz’s version of events leading to his conviction is a “fabrication.” Motion to
Compel at 2. To Defendants, Cruz’s credibility, therefore, is “crucial evidence in this case,” and
“the most important issue in the case.” Id. at 2; Reply at 5. The primary significance of Byrne’s
“information,” then, lies in its containing “potential inconsistent statements and admissions,” as
Guevara put it. Motion to Compel at 6.
Guevara has issued a Rule 45 subpoena to Byrne, demanding that she produce the
following information:
1. Any and all video and audio related to IDOC video visits with Jose Cruz.
2. Any and all video and audio related to Jose Cruz.
3. Any and all documents, transcriptions, notes, correspondence, and/or communications
related to Jose Cruz, and/or his family.
4. Any and all documents, notes, articles, and/or communications related to Jose Cruz, and/or
his family.
5. Any and all documents, notes, articles, internet/social media postings and/or
communications related to “Corruption Capital,” a documentary in post-production and
Jose Cruz.
6. Any and all video and/or audio outtakes related to IDOC video visits with Jose Cruz.
7. Any and all video and/or audio outtakes related to “Corruption Capital,” a documentary in
post-production and Jose Cruz.
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8. Any and all video and/or audio outtakes related to any film and/or media production and
Jose Cruz.
9. Any and all data, metadata, modifications, edits, documents, copies, memorandums,
emails, etc. related to the syncing of audio and video related to Jose Cruz.
10. Any and all data, metadata, modifications, edits, documents, copies, memorandums,
emails, etc. related to the syncing of audio and video related to “Corruption Capital,” a
documentary in post-production and Jose Cruz.
Byrne Subpoena (D.E. 246-4).
As for the content of those “potential” inconsistent statements or admissions sought by the
subpoena, and as for why Guevara believes he will find them in the subpoenaed documents,
Guevara argues:
•

Byrne communicated with Cruz. Since first reaching out to Cruz in March 2020 about his
criminal case, Byrne communicated with Cruz frequently by e-mail, telephone, and video
visits, as shown by IDOC records of communications with Cruz while he was in custody.
Motion to Compel at 3, Exhs. 2 (D.E. 246-2) and 3 (D.E. 246-3).

•

Byrne communicated with Cruz about his criminal case and matters relating to Guevara.
Guevara establishes this fact (that the general nature of Byrne’s communications with Cruz
included discussion about his case and matters involving Guevara) by obtaining an Illinois
Department of Corrections report of communications between Byrne and Cruz. (D.E. 2462.) Guevara notes that the IDOC materials show that Cruz communicated with Byrne about
his case, including developments in his state post-conviction litigation, and that he shared
with Byrne various written documents abouts his case, but none of those communications
contains any specific statement that Guevara claims to be impeaching or contradictory to
Cruz’s “version” of events surrounding his conviction or his dealings with Guevara.
Motion to Compel at 3-4.

•

Byrne interviewed other persons besides Cruz about his case. The communications
Guevara obtained from IDOC establish or at least indicate that Byrne interviewed others
about Cruz’s case, including members of his extended family. Id. at 5. Guevara establishes
the fact that such communications occurred, but his information from IDOC contains
nothing about the content of what might have been disclosed to Byrne in any of those
interviews.

•

Byrne “monitored” Cruz’s efforts to exonerate himself through state-post conviction
proceedings, about which she “updated” him. The IDOC information cited IDOC
communications indicating that the progress of the post-conviction proceedings was one
of the matters about which Byrne and Cruz communicated while Cruz was in custody, id.,
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but Guevara cites no specific statement Cruz made to Byrne with respect to his dealings
with Guevara or the events leading to Cruz’s conviction, i.e., the events that Cruz related
in his lawsuit and that Guevara calls “a fabrication.”
•

Byrne continued to communicate with Cruz after his release from custody. Guevara points
to three videos, posted online, in which Byrne interviewed Cruz after his release from
custody. Id. Guevara does not cite the content of any of these video interviews with respect
to the events leading to Cruz’s conviction or his dealings with Guevara; Guevara states
only that “Byrne makes repeated reference to other communications and interactions she
has had with Plaintiff since his release including attending an ‘innocence conference’ with
him in Arizona and visiting his home (of which a small snippet of such footage is
displayed).” Id. at 5-6. In other words, Guevara does not state that any of these three video
interviews posted to social media contain any further indication of precisely what Cruz told
Byrne about Guevara at any time – only that Byrne and Cruz had many communications
about his case. Id. at 6.
In opposition to the Motion to Compel, Byrne argues that the subpoena should not be

enforced because it imposes an undue burden upon her as a working journalist, and that the Court’s
assessment of the Rule 45 burden should include what Byrne calls the questionable relevance of
her information. Resp. at 6-8. “The relevance is questionable when Mr. Guevara seeks to impose
this burden solely in the hope that he might dredge up something that might be used for
impeachment.” Id. at 8. Discussing the burden of the subpoena more specifically, Byrne estimates
that reviewing her materials for responsiveness would take as many as 40 hours. Byrne Decl. ? 8.
She also argues that her reporting and newsgathering activities would be burdened by enforcement,
in that:
My relationships with sources are built on trust, and I believe those relationships
would be damaged if sources knew that information they provided me, whether in
the form of documents or interviews, would be disclosed to parties in litigation. I
realize that nonconfidential sources understand that portions of their interviews
may be incorporated into publicly distributed documentaries, but that does not
mean that they would be comfortable with my being used as a conduit for a law
firm to collect information. I believe that would materially detract from my ability
to report both for the Film and for future films. If my relationships with sources and
subjects are damaged, that may also affect their willingness to participate in social
impact campaigns for the Film and other Beti Films documentaries.
Id. ?? 12-13.
7

Byrne makes a passing reference to a state law reporter’s privilege that might be
recognized or somehow credited in federal court as a matter of comity, Resp. at 8, but the Court
begins the analysis with the proposition that no federal reporter’s privilege exists in the Seventh
Circuit, and that the Illinois statutory reporter’s privilege does not apply in federal court. McKevitt
v. Pallasch, 339 F.3d 530, 533 (7th Cir. 2003); U.S. Dep’t of Educ. v. National Collegiate Athletic
Ass’n, 481 F.3d 936, 938 (7th Cir. 2007). Other courts in this circuit have confronted arguments
that their discretion permits them to apply the state law privilege to bar or limit subpoenas on
journalists, but this Court agrees with those that have rejected Byrne’s “comity” argument as a
means of extending the Illinois reporter’s privilege to matters under federal jurisdiction. See
Gaines v. Board of Educ., No. 19 C 775, 2022 WL 1292248, at *4 (N.D. Ill. Apr. 29, 2022)
(declining media organization’s invitation to consider state law privilege as a “factor” in the burden
analysis per Davis v. City of Springfield, No. 04-3168, 2009 WL 1161619, at *3 n.1 (C.D. Ill. Apr.
28, 2009), and following McKevitt’s prescription that subpoenas directed at the media are
evaluated for reasonableness “the same way as any other subpoena”); Tate v. City of Chicago, No.
18 C 7439, 2020 WL 4437853, at *2 (N.D. Ill. Aug. 3, 2020) (“The Seventh Circuit has clearly
established that state-law privileges – specifically, Illinois’ statutory version of the reporter’s
privilege, 735 ILCS 5/8-901 – are not ‘legally applicable’ in federal question cases such as this.”).
ANALYSIS
In view of McKevitt, the reporter’s privilege is not in play in this case. The Court’s analysis
of Byrne’s undue burden argument must consider the length of McKevitt’s shadow, as in what
courts mean when they say they are treating subpoenas upon media members in “the same way as
any other subpoena” per McKevitt. McKevitt involved a request for compelled production of U.S
journalists’ tape recordings of a witness for use in a foreign proceeding under 28 U.S.C. § 1782,
8

and the opinion rejected the journalists’ argument for a federal reporter’s privilege. 339 F.3d at
531-35. A party issuing a subpoena in a federal civil matter “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).
Under Rule 45, the balancing of the benefits and burdens in an analysis of a subpoena’s

enforceability is a matter committed to the district court’s discretion. Northwestern Mem’l Hosp.
v. Ashcroft, 362 F.3d 923, 928 (7th Cir. 2004). As the Seventh Circuit explained in Ashcroft, the
required balancing boils down to whether the burden of the proposed discovery outweighs its likely
benefit. Id. at 927. McKevitt made a passing reference to Federal Rule of Criminal Procedure
17(c) and did not discuss its civil counterpart, coming closest to discussing the Rule 45 balancing
of benefit and burden in the following passage:
It seems to us that rather than speaking of privilege, courts should simply make sure
that a subpoena duces tecum, like any other subpoena duces tecum, is reasonable
under the circumstances, which is the general criterion for judicial review of
subpoenas. We do not see why there need to be special criteria merely because the
possessor of the documents or other evidence sought is a journalist.
339 F.3d at 533, citing Fed. R. Crim. P. 17(c) (other citations omitted). 6 McKevitt also commented
briefly on individualized challenges to a subpoena’s reasonableness under the circumstances based
on the burden that subpoena enforcement might place on journalists. Considering only the issue
of whether subpoena enforcement would deter completion of the journalistic project, a biography
in that case (a burden claim akin to but narrower than the burden Byrne asserts in this matter),
McKevitt added that the deterrent to completing the biography “is a consideration that a district
court might properly consider in deciding on a challenge to a subpoena, but it would add nothing
to the court’s consideration to analyze it in legal categories drawn from the First Amendment.” Id.
at 535. A fair reading of the above snippets from McKevitt about the impact of subpoena
“On motion made promptly, the court may quash or modify the [criminal] subpoena if compliance would
be unreasonable or oppressive.” Fed. R. Crim. P. 17(c)(2).
6

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enforcement upon journalists is that the decision left open a path toward arguing that such burdens
are considered as part of the Rule 45 analysis, even as they “do not establish a freestanding
privilege.” Beverly v. Watson, No. 14 C 4970, 2016 WL 3633316, at *6 (N.D. Ill. July 7, 2016).
The Court has reviewed the Northern District of Illinois precedent in that vein, mindful that “none
of these cases is particularly helpful since each turned on the peculiar facts that were presented[,]”
Taylor v. City of Chi., No. 14 C 737, 2015 WL 6561437, at *10 (N.D. Ill. Oct. 29, 2015), and that
no district court decision is binding on another district court. Calhoun v. Colvin, 959 F. Supp. 2d
1069, 1077 n.6 (N.D. Ill. 2013). The questions before the Court on the Byrne subpoena involve (1)
the degree to which reporters like Byrne may make cognizable undue burden arguments, as
reporters, under Rule 45 after McKevitt, and (2) the outcome of the case-specific balancing of the
benefits and burdens presented by the Byrne subpoena.
I.

Journalists May Make Rule 45 Undue Burden Arguments Based on Reasonableness
Under the Circumstances.
In dismissing Byrne’s Rule 45 undue burden arguments as “boilerplate,” Guevara relies on

McKevitt for the propositions that Byrne “is entitled to no additional protections than anyone else
responding to a subpoena issued under Rule 45,” that the subpoenaed materials are “ordinarily
discoverable” under Rule 45, and that not enforcing the Byrne subpoena “would effectively be
applying a privilege that does not exist.” Motion to Compel at 9, 14. Yet Guevara also
acknowledged that he “agrees” that several post-McKevitt Northern District of Illinois decisions
“recognize special concerns that factor into a determination of what is reasonable when a party
subpoenas a reporter, which is consistent with the McKevitt court’s direction to consider specific
circumstances when determining whether discovery is reasonable.” Reply at 9-10. To clear up
any confusion about whether reporters may argue after McKevitt that subpoena enforcement will
affect them, as reporters, in a way that represents an undue burden under Rule 45, this Court will
10

address whether, as Guevara suggests, McKevitt snuffed out virtually any reporter’s undue burden
argument based on that person’s status as a reporter engaged in newsgathering activities protected
by the First Amendment. The Court sees the answer to that question as no.
In McKevitt, the Seventh Circuit refused to recognize the existence of a reporter’s privilege,
despite several other courts of appeal having done so in various circumstances. 339 F.3d at 53233. McKevitt reasoned that applying a federal reporter’s privilege to protect confidential sources
would be contrary to what McKevitt saw as the majority opinion in Branzburg v. Hayes, 408 U.S.
665 (1972), and that extending such a privilege to protect against disclosure of non-confidential
sources based on “concerns with harassment [of reporters], burden, using the press as an
investigative arm of government, and so forth . . . may be skating on thin ice” because, according
to McKevitt, Branzburg rejected those considerations in rejecting a privilege protecting reporters’
confidential sources from grand jury subpoenas in federal criminal investigations. McKevitt, 339
F.3d at 532-33. But McKevitt did not say that such concerns are not cognizable where reporters
argue that a subpoena is not reasonable under the circumstances; instead, by referring to burdens
including harassment of the press, and making the press an investigative arm, as among the
considerations “that a district court might properly consider in deciding on a challenge to a
subpoena,” id. at 533, 535, the Seventh Circuit indicated that those concerns ought to be cognizable
under Rule 45. Byrne therefore may make arguments that the subpoena upon her is not reasonable
under the circumstances without relying on a nonexistent reporter’s privilege.
That said, the language of several post-McKevitt decisions of district courts in the Northern
District of Illinois has suggested that reporters’ undue burden arguments based on First
Amendment concerns may be an attempt to find an “alternate route” to recognizing a reporter’s
privilege in derogation of McKevitt. But those courts’ use of such language was in the context of

11

balancing, under Rule 45, the burden on the media against the benefit of enforcing the subpoenas
directed at the media. See Gaines, 2022 WL 1292248, at *4 (“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”); Taylor, 2015 WL 6561437, at *10 (allowing broad discovery from
Chicago Tribune journalists whose “articulated burden appears to be an alternate route to a
reporters’ privilege, one that relies upon the same rationales that courts in this circuit have
rejected”); Thayer v. Conlisk, 257 F.R.D. 466, 470 (N.D. Ill. 2009) (“Absent a showing of actual
burden, the Court is not inclined to allow Mr. Conlisk to avoid enforcement of the subpoena with
a backdoor attempt to impose a privilege.”); Wilson v. O’Brien, No. 07 C 3994, 2009 WL 763785,
at *10 (N.D. Ill. Mar. 20, 2009) (“To find, in this case, that the Subpoena is not reasonable under
the circumstances, or that it imposes an undue burden on [journalist] Possley, would be tantamount
to promulgating a First Amendment federal reporter’s privilege with respect to non-confidential
information.”). The Court does not read these cases as indicating that journalists are altogether
precluded from raising Rule 45 undue burden arguments. That would represent a significant
extension of the holding of McKevitt. The “circumstances” of a subpoena upon a reporter include
the fact that the subpoena respondent is a reporter. Otherwise, courts would be treating subpoenas
upon reporters in a manner distinctly unlike “any other subpoena,” by not considering the
reporters’ individual circumstances and what is reasonable in those circumstances.
As for the First Amendment, the Seventh Circuit only a year ago made crystal clear that
newsgathering is a protected activity under the First Amendment. See Brown v. Kemp, 86 F.4th
745, 763-64 (7th Cir. 2023) (“First Amendment protection extends to activities necessary to
produce and disseminate speech within a protected medium for the communication of ideas
…. We have held the act of making an audio or audiovisual recording is necessarily included

12

within the First Amendment’s guarantee of speech and press rights as a corollary of the right to
disseminate

the

resulting

recording

….

The First Amendment covers

….

plaintiff

Weisberg’s newsgathering activities.”) (internal quotations and citations omitted).

Brown’s

holding was that a Wisconsin statute criminalizing the recording of hunters in the field
unconstitutionally chilled the expressive activities of a newspaper opposed to hunting. Id. at 784.
Extending McKevitt to preclude journalists from arguing a First Amendment burden in the Rule
45 context of opposition to a subpoena, or to apply some sort of presumption against that type of
argument based on a fear that courts are creating an “alternative” avenue to a reporter’s privilege,
would place a remarkably low value on the constitutional dimension of newsgathering as
recognized recently by Brown. This Court does not extend McKevitt in that fashion, and to the
extent other courts have done so, this Court is not bound to follow those cases and does not follow
them.
In any event, decisions like Gaines, Taylor, Thayer and Wilson analyzed entertained
journalists’ burden arguments under Rule 45, although those courts rejected the arguments. These
cases adhered to Rule 45 in evaluating the relevance of the discovery sought as well as the
persuasiveness of the reporters’ undue burden arguments. These decisions qualitatively balanced
the benefit of the subpoenaed information against burden and found the journalists’ burden
arguments unpersuasive in the individual circumstances of those cases. Consequently, this Court
must undertake its own qualitative balancing of Byrne’s undue burden arguments against the value
Guevara says he will gain from the requested unpublished information.
II.

The Court’s Balancing of Benefits and Burdens Weighs Against Enforcing the Byrne
Subpoena.
The balancing of the benefits and burdens in this matter does not justify compelling Byrne

to disgorge the information Cruz provided to her over a period of years, including her notes, her
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video and audio recordings, metadata that would reveal her editing of video and audio recordings,
or anything else on the list of requested documents in the Byrne subpoena.
A. The “Potential” Relevance of Byrne’s Information Is More Speculative
Than Dispositive.
Guevara’s assertion that there is “no dispute whatsoever” that Byrne “has relevant
documents pertaining to this case” (Motion to Compel at 2) vastly overstates the benefit of the
information to Guevara. Guevara devotes nearly three pages of his opening brief to reciting the
extent of the communications that occurred between Byrne and Plaintiff, yet in all that ink,
Guevara does not point to a single Cruz statement that is inconsistent with any assertion he made
in the pleadings or discovery, including his deposition. Id. at 3-6. On the one hand, Guevara
speculates that the body of communications between Cruz and Byrne is “fodder for potential
inconsistent statements and admissions,” and on the other hand, he insists that it contains
“contradictory statements by Plaintiff,” again without pointing to a single such statement or a
single piece of evidence beyond Guevara’s suspicion that because Cruz did not disclose Byrne in
discovery, he must be hiding something. 7 Id. at 6 (emphasis added). The Court agrees that
Plaintiff’s credibility is an important issue in the case or even “the” important issue, but that does
not make his unknown statements to Byrne, included or not in a yet-to-be-published documentary
film, any more relevant or likely to contain impeachment material or admissions.
Guevara expresses a concern that Cruz’s interrogatory responses failed to disclose Byrne as someone with
whom he had communicated about his case, notwithstanding the interrogatory’s request for disclosure of
his communications with journalists. Motion to Compel at 2, citing Plaintiff Cruz’s Response to Defendant
Boris’s Interrogatories (D.E. 246-1). Guevara argues that his case for compelling Byrne to produce under
the subpoena is supported by Cruz having “concealed or conveniently ‘forgot’ during written discovery”
that he had communicated extensively with Byrne. Motion to Compel at 6. The Court does not see Cruz’s
forgetfulness (whether “convenient,” deliberate, or otherwise) as adding to the relevancy of any statements
he made to Byrne without more about what those statements actually contained. The Court views Cruz’s
nondisclosure (apparently not yet seasonably supplemented, at least to the Court’s knowledge) as anything
more than an unresolved discovery issue. Cruz’s non-disclosure of his communications with Byrne adds
nothing to Guevara’s argument that those communications contain critically important information in the
form of “potential” impeachment material.
7

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Guevara argues that this case is “akin to Taylor” because the Taylor court compelled
production of the information gathered from the wrongful conviction plaintiff, Daniel Taylor, by
the Chicago Tribune journalists. Id. at 10. Guevara contends that the Taylor court compelled
production because Taylor “was going to testify about the very same topics he described to the
reporter during multiple interviews” that had taken place closer in time to the relevant events than
Taylor’s deposition, so the Tribune’s unpublished information “could provide Defendants with
information useful for attacking witness credibility, impeachment, and/or otherwise admissible
evidence.” Id. at 10. But that gloss on Taylor is only a part of the Taylor court found. If
impeachment evidence would follow so surely from earlier statements about the same subject
matter as the trial or even deposition testimony, then the mere fact that a plaintiff spoke to a
journalist about a case would mean that a court need inquire no further into the relevancy of the
communications. And that is not what happened in Taylor. The rest of the story in Taylor is that
the magistrate judge had the benefit of previously published Tribune news stories about Taylor’s
case, including many related statements Taylor made to the reporters. 2015 WL 6561437, at *4.
The magistrate judge carefully examined those news stories and Taylor’s prior statements,
assembling a lengthy chart of eight quoted or paraphrased statements Taylor made (gleaned from
seven separate Tribune news stories) about him being in a police lockup at the time of the murder,
along with several other statements he made to the reporters about the alleged confession of
another person and his allegations of having been beaten by police. Id. at *6-9. From all this, the
magistrate judge in Taylor concluded that the defense in his wrongful conviction lawsuit had a
substantial need for the discovery of his prior statements to the Tribune, and that this need
outweighed the burdens that the Tribune or its reporters had asserted in opposition to the subpoena.
Id. at *10-11.

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The record on the Motion to Compel in the instant case, though, contains no information
at all about Cruz’s specific statements (let alone inconsistent statements) to Byrne about his case,
either in the subpoenaed recordings, notes or memoranda, or in the 72-page, single-spaced IDOC
electronic message report that is in the record (D.E. 246-2); the Court presumes that if any of those
statements indicated the existence of impeaching or inconsistent statements in the materials not
produced, Guevara would have called that to the Court’s attention. He did not. 8 In short, the
instant case is hardly “akin” to Taylor. Guevara’s analogy to Taylor is overstated and breaks down
because the subpoena proponents in Taylor easily established relevance, impeachment value, and
substantial need based on the prior, published statements the magistrate judge carefully and
thoroughly analyzed, whereas in this case, Guevara has nothing or next to nothing published to go
on, and the result is that unlike the Taylor proponents, he points to not a single piece of hard
evidence suggesting “critical” relevance of Byrne’s unpublished materials. See also Wilson, 2009
WL 763785, at *2, 9 (finding that subpoenaed information from reporter was “more than merely

The parties including Guevara have taken substantial discovery in this case, and Guevara is in possession
of a substantial amount of electronic communications between Cruz and Byrne by virtue of IDOC’s
preservation of electronic records, as the Court has noted. Byrne has argued that the substantiality of
Guevara’s discovery of Cruz’s communications with Byrne is a reason to deny compelled production of
the subpoenaed information from Byrne as unnecessary, Resp. at 6-7, but the Court is not deciding the
Motion to Compel on that ground. The Court notes for the record, though, that the docket indicates that
Guevara and the other defendants deposed Cruz on September 18, 2024, and as for Cruz’s communications
with Byrne, Cruz at his deposition was asked questions only about the fact that he communicated with her
about his case (and specifically “about [his] being innocent,” as he put it), that he could not remember
statements he made to his former criminal lawyer, and that he had not listed Byrne in his response to the
Boris interrogatory asking for disclosure of reporters to whom he had spoken. 9/18/24 Cruz Dep. Tr. (D.E.
288-1) at 370-72, 445-50, passim. Guevara and the other defendants did not ask Cruz about any more
specific information he provided to Byrne during her research, despite having had the opportunity to explore
those issues at the deposition. Not questioning Cruz in any specific detail about the information he provided
to Byrne is tantamount to not having asked him at all, a factor that at least one court in this district has
found to cut against enforcement of this type of subpoena upon the journalist. Patterson, 2005 WL 43240,
at *2; see also Cooper v. Rezutko, No. 3:17-CV-834-PPS-MGG, 2019 WL 927095, at *8 (N.D. Ind. Feb.
26, 2019) (quashing litigant’s subpoena and finding an undue burden on respondent newspaper where
litigant city sought unpublished information “without exhausting its options for securing the same
information from Plaintiff and his attorney.”)

8

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relevant” after reporter published three news stories based on interviews with a crime victim who,
when told of plaintiff’s exoneration, recanted her earlier accusatory statements about plaintiff).
Several other district court decisions relied upon here by Guevara, and discussed below, also
enforced subpoenas on journalists after finding their information highly relevant based on what
the journalists already had published.
In Gaines, CBS2 had aired a news story featuring portions of recordings of a minor (whose
mother sued the Chicago school system over alleged beatings the minor suffered at the hands of
school staff) and of one of the school staff members accused of involvement in the beatings. 2022
WL 1292248, at *1. The plaintiff seeking disclosure of the reporter’s unaired “outtakes” was able
to establish that the school staffer had made previously recorded statements directly contradicting
her statements to police and other investigators, and that the minor victim’s recorded statements
had significant value as prior consistent statements made without a motive to fabricate. Id. at *23. Those factors make Gaines unlike this case, for the same reasons this case is not “akin” to
Taylor. But in addition, CBS2 in Gaines did not dispute the relevancy of the outtakes, instead
leaning heavily on the Illinois statutory reporter’s privilege, which the district court correctly saw
as inapplicable in the Gaines federal case and thus wholly ineffective as a counterweight in the
balancing of benefits and burdens. Id. at 3-4. By contrast, in the instant case, Byrne disputes the
relevancy and criticality of the unpublished information Guevara seeks from her. Resp. at 7-8.
Mosely v. City of Chicago, 252 F.R.D. 421 (N.D. Ill. 2008), like the other cases in
Guevara’s array of Northern District of Illinois matters in which the balancing of benefit and
burden came out in favor of enforcing subpoenas on reporters, involved a published journalistic
work that triggered the subpoena. But Mosely is less clear about whether the Court’s ability to
review the published statements (in that case by the Mosely plaintiff) established that the

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journalists’ unpublished tapes of the plaintiff’s statements were of sufficient relevance to
overcome the journalists’ arguments that the subpoena placed an undue burden on them. Instead,
the court in Mosely appeared to assume that because the article established that the plaintiff spoke
to the journalist about his case in detail, and because those events were “at the epicenter” of the
lawsuit, the “criticality” of his statements to the journalist was “beyond debate,” so that “there is
every reason to conclude that the subpoenaed information is likely to contain critical information
that could constitute or lead to admissible evidence.” 252 F.R.D. at 430-31. This Court reasonably
and within its discretion does not make the same inference in this case, in which the core
journalistic product of plaintiff’s statements to Byrne has not been published, and Guevara’s
emphasis on the importance of those statements to his case are based only on their “potential” for
impeachment value. See Ashcroft, 362 F.3d at 926-29 (affirming district court’s finding that the
balance of benefit and burden favored quashing a subpoena for sensitive health information, where
the asserted relevancy of the information lay in “the possibility” that the subpoena proponent might
find information that had “potential value” in impeaching a witness’s credibility).
In Tate, CBS aired news reports about improper Chicago police searches of homes,
including three reports about the search of the home of the plaintiff who brought a federal rights
suit in connection with that search; the search of the plaintiff’s home also was part of a 28-minute
documentary aired by CBS. 2020 WL 4437853, at *1. The Tate court limited the subpoenaed
CBS production to “outtakes” of statements by the plaintiff only, under a relevancy theory that,
like Mosely, turned on the court’s inference that plaintiff’s interviews were central to the case’s
key event, id. at *3, which was a much more discrete – and concrete – event (a police raid gone
wrong) than the far more complex and inter-related series of events Cruz in the instant case says
gave rise to his vacated murder prosecution. In Tate and Mosely, the courts saw relevancy in the

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subpoenaed information, but enforcement turned more on those courts’ dismissal of the journalists’
arguments about why the subpoena placed an undue burden on them. 2020 WL 4437853, at *3;
Mosely, 252 F.R.D. at 431-32. The Court will address those aspects of Tate and Mosely below in
the discussion of Byrne’s undue burden arguments. But for purposes of this discussion, the benefit
analyses in Tate and Mosely do not carry the day on the Guevara Motion to Compel, which presents
very different circumstances, in that Byrne’s journalistic work has not been published (except for
three brief video snippets that Guevara has not described as containing or even suggesting
inconsistent statements or admissions) and yields no basis for Guevara’s sweeping conclusion that
Byrne’s unpublished information is (potentially) rich with impeachment material.
Finally, Guevara’s discussion of Patterson v. Burge, No. 03 C 4433, 2005 WL 43240 (N.D.
Ill. Jan. 6, 2005), illustrates why Guevara falls short of establishing the kind of critical relevance
that he sees as warranting enforcement of the Byrne subpoena. Reply at 9. Patterson observed
that no one in that case was arguing that the subpoenaed documents contained no relevant
statements by the exonerated plaintiff, and the court understood that “it is possible that Patterson
said something during those interviews that could be used to cross-examine him in the civil suit or
be used as an admission.” 2005 WL 43240, at *2. But “possible relevance,” or “relevance in its
broadest and weakest sense,” is not the standard for enforcing subpoenas. Id. In Patterson, the
court reasoned that as a result, the subpoena proponents were “simply speculating” that the
journalists possessed unpublished materials containing impeachment information or admissions.
Id. The Court finds Guevara’s relevance arguments just as speculative. Although Guevara has
reason to know that Cruz discussed his prosecution extensively with Byrne, and thus that his
statements to Byrne may contain some relevant information, Guevara has pointed to nothing to
indicate that Cruz’s discussions with Byrne contained impeachment material or admissions – there

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is only the “potential” for such content. All Guevara can say is that this case is different from
Patterson because “Defendants have provided numerous specific pieces of information retained
by [Byrne].” Reply at 9, citing Motion to Compel at 2-6. But the fact that Byrne appears to have
retained a significant amount of the information she received from Cruz is not the same as her
possessing impeaching or inculpatory content in any of that information. Motion to Compel at 26.
B. The Subpoena’s Burdens Upon Byrne Are Substantial.
Against Guevara’s weak showing of relevance of the information, the Court weighs
Byrne’s argument that the subpoena is unduly burdensome as part of the Rule 45 balancing. First,
Byrne argues that she is the sole employee of her filmmaking company and will have to devote
20-40 hours to collecting the subpoenaed material, all while her film is still in production, if the
subpoena is enforced. Resp. at 7; Byrne Decl. at ¶¶ 8-11. Second, Byrne argues that enforcement
will burden substantially her ability to complete her To Catch a Case reporting and her ability to
operate as a reporter in the future, as her sources, she believes, will be less cooperative with her
once they know that all the information they provide to her may be turned over to litigants such as
Guevara. Byrne Decl. ? 12.
1. The Subpoena Would Impose a Substantial Administrative Burden on
Byrne.
Even accepting Guevara’s representation that he only seeks “portions [of Byrne’s reporting
materials] that relate to Plaintiff,” as opposed to all she has concerning Guevara, Motion to Compel
at 13, Plaintiff has averred that collection of those materials would take about 20 hours of her time.
Byrne Decl. ¶ 9. This burden is substantial, given Byrne’s status as the sole employee of Beti
Films, with no staff to help her complete the subpoena compliance project or the post-production

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stages of To Catch a Case, including further reporting and editing. The greater burden on Byrne,
though, is on her newsgathering activities, as discussed below.
2. The Subpoena Burdens Byrne’s Constitutionally Protected Newsgathering
Activity.
Byrne’s non-administrative burden argument, concerning the impact on her
constitutionally protected newsgathering activities, is substantial. “Burden in this context [of
whether a Rule 45 subpoena is reasonable under the circumstances] means more than mere
administrative hardship. It encompasses the interests that enforced production would compromise
or injure.” Patterson, 2005 WL 43240, at *1, citing Ashcroft, 362 F.3d at 928-29. Specifically,
the burden Byrne describes is the loss of trust from her sources “if sources knew that information
they provided me, whether in the form of documents or interviews, would be disclosed to parties
in litigation.” Byrne Decl. ? 12. Guevara dismisses these arguments as “boilerplate” and “nearly
uniformly … rejected” by courts. Motion to Compel at 2, 10, citing Gaines, 2022 WL 1292248,
at *1; Taylor, 2015 WL 6561437, at *14; Tate, 2020 WL 4437853, at *3; Mosely, 252 F.R.D. at
436; and Wilson, 2009 WL 763785, at *9. Guevara relies most heavily on Mosely, and in particular
a passage of Mosely in which that court found that the journalist’s assertion of future burden on
newsgathering activity from being forced to comply with a litigation subpoena was
“unconvincing,” “illogical,” and “unpersuasive.” Motion to Compel at 14, citing Mosely, 252
F.R.D. at 431-32. Yet Mosely recognized, as a concern that “could not be more valid,” judicial
caution in Patterson about how “too many” civil litigants’ “insatiab[le]” desire to engage in
“endless discovery” could lead to “indiscriminate enforcement of subpoenas to news
organizations, based solely on a finding of ‘mere relevance,’ [and] could have an undue burden on
journalists and the media.” 252 F.R.D. at 434, citing Patterson, 2005 WL 43240, at *3. That
concern did not prevail in Mosely because the court determined that the subpoenaed documents in
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that case “have substantial, identifiable ‘probative value,’” in that the court thought the absence of
prior inconsistent statements in what that plaintiff had said to the journalist was “improbable.” Id.
Mosely is therefore distinguishable from this case for the reasons stated above in Part II(A), but
Mosley also discussed at length, and dismissed, the burden on the journalist’s newsgathering
activities:
Publication of interviews with non-confidential sources is consistent with the
expectation – if not the desire – of the interviewee that there be public
dissemination. Anyone reading the interview intuitively understands that. The
possibility that at some point in the future a journalist might have to make a further
disclosure of that which either was already publically disclosed or could have been
had the journalist decided to do so, does not change the essential nature of the
understanding the interviewee and the journalist had or impose a risk meaningfully
different from that which inhered in the interview. . . . Journalists alone determine
the contours and content of their interviews, unaided and uninfluenced by lawyers
in cases still in the womb of time and that may never be born.
252 F.R.D. at 431-32, quoted in Reply at 7.
The Mosely court’s “intuitive[] understand[ing]” about how reporters interacted with their
sources 16 years ago does not apply in this case. Mosely’s reference to the “womb of time” and
litigation matters “that may never be born,” appeared to suggest that compelling reporters to turn
over, under subpoena, their sources’ unpublished information to civil litigants would not hamper
newsgathering that is remote in time from the subpoena. Byrne, though, is continuing to complete
her film project concerning Guevara and wrongful convictions in Cook County, and Guevara seeks
to enforce his subpoena upon her before her reporting on the project is completed. In this case,
then, there is no “womb of time” separating her reporting activities from the unborn prospect of
her being compelled to provide Guevara and his attorneys all of her notes, video and audio
recordings (and metadata showing how she may have edited the recordings). But even if the
subpoenaing of Byrne’s unpublished information from Plaintiff were some far-off prospect or
future event, as it arguably was when Byrne began her reporting on this project in March 2020,
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the outcome should be no different. In the milieu of criminal justice reporting, journalists speaking
to sources today about alleged wrongful convictions in Cook County could well anticipate future
litigation and subpoenas directed at that reporting, particularly in high-profile matters such as this
one, in which Guevara is a person facing some 26 wrongful conviction lawsuits and is said to be
involved in about 46 murder exonerations. In this case alone, Guevara initiated or pursued some
seven subpoenas on journalists or their news organizations. (D.E. 209.)
In addition, several of Mosely’s “intuitive[] understand[ings]” are based on assumptions
not supported in the record here. One such assumption is that everything Cruz told Byrne was “on
the record” (a term of journalistic art meaning for full use, with attribution to the source, by the
reporter in the published work) and thus approved by Cruz for publication. The Court has no way
of knowing whether this is so, and nothing in the record establishes it. But even assuming
everything the source tells the reporter was “on the record,” Mosely contains another assumption:
that a so-called “non-confidential source,” that is, one who knows the reporter will fashion a
published journalistic work from the source’s information provided “on the record,” must also
know that all of source’s information – including information that the journalist may choose not
to publish – is essentially fair game for disclosure not only in the published work, but separately
and additionally to anyone else who might ask for it or subpoena it, possibly including the persons
about whom the source is providing the information. Under this assumption, the reporter is
gathering information not just for the news story, but for full consumption by anyone and everyone
and for use in litigation. Based on these assumptions, Mosely dismisses the argument that
journalists’ sources would be less willing in the future to share information with reporters after
enforcement of subpoenas for the sources’ information that the reporter did not publish. Nothing
in the record in the instant case supports any of these assumptions, and particularly the latter one.

23

Byrne has said that her relationship with present and future sources “would be damaged if sources
knew that information they provided me, whether in the form of documents or interviews, would
be disclosed to parties in litigation.” Byrne Decl. ¶ 12 (emphasis added). 9 In other words, Byrne
is saying her sources ordinarily do not know that their unpublished information would be
disseminated to third parties at all, let alone to the lawyers for one of the primary subjects of the
reporter’s investigation. Guevara has offered no firsthand information to the contrary. The most
that the Court could infer from the record in this case is that the source consented to Byrne
publishing the information she chose to publish, in her exercise of editorial judgment. Therefore,
the Court sees Byrne’s concerns about the impact of subpoena enforcement on her present and
future newsgathering activities as not so speculative that the Court could or should discount or
dismiss those concerns in the Rule 45 balancing, when Guevara’s arguments about the “potential”
relevancy of her unpublished information are as speculative as they are in this case.

Guevara has called this point a “journalistic street cred” argument. Reply at 5. As summarized above,
the Court prefers more neutral language, fairly construing Byrne’s argument as stating that when sources
share information with her within her relationship of trust with them, the sources also trust that Byrne will
not disclose information about them other than what she attributes to them in her published work. In the
years since McKevitt, courts in this district occasionally have used the term “street cred” to describe this
argument. See Gaines, 2022 WL 1292248, at *4; Taylor, 2015 WL 6561437, at *10; Thayer, 257 F.R.D.
at 470 n. 5; Bond v. Utreras, 04 C 2617, 2006 WL 1806387, at *5 (N.D. Ill. June 27, 2006). No federal
court outside the Northern District of Illinois, and no state court, has used this term to refer to a reporter’s
constitutionally protected newsgathering activities. Courts ordinarily have used the term “street cred” or
“street credibility” to refer to criminal conduct, usually by gangs, and the term has been described by federal
agents and gang members as instilling “a sense of fear in victims and witnesses and in people who hear
about the reputation of the gang.” Wright v. McDowell, No. 2:18-cv-03227 TLN GGH P, 2019 WL
5420209, at *2 (E.D. Cal. Oct. 23, 2019); see also United States v. Chester, No. 13 CR 0774, 2017 WL
3394746, at *11 (N.D. Ill. Aug. 8, 2017) (noting how gang member “described how the Hobos were ‘one
of the hottest gangs right now.’ . . . ‘We living up to our street creds.’”). This district’s first use of this term
to characterize newsgathering came in Bond, a 2006 decision involving a journalist who had embedded
himself in Chicago’s former Stateway Gardens public housing project and who had “fancie[d] himself as
being a voice of the people in the projects.” 2006 WL 1806387, at *2, 5.
9

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In short, the differences between this case and Mosely are many, including the less wellestablished relevance of the subpoenaed information. In addition, this Court agrees with Patterson
that ordering journalists to produce unpublished information on a mere showing of possible
usefulness in the litigation (as Guevara proposes here), would create substantial burdens for
journalists because:
[I]f 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. Further, the journalistic and editorial judgments involved in deciding what
to ask an interview subject, and in deciding what to use from the material gathered,
are the commercial and intellectual stock in trade of the news organizations; surely
some good justification should be advanced before these journalistic and editorial
judgments can be examined by outsiders and made public in the context of a civil
lawsuit.
2005 WL 43240, at *3 (emphasis added); see also Hobley v., Burge, 223 F.R.D. 499, 505 (N.D.
Ill. 2004) (“If the parties to any lawsuit were free to subpoena the press at will …. [t]he resulting
wholesale exposure of press files to litigant scrutiny would burden the press with heavy costs of
subpoena compliance, and could otherwise impair its ability to perform its duties”).
After balancing the subpoenaed information’s “potential” relevance against the burdens on
Byrne’s newsgathering activities in conjunction with what this Court has described as a substantial
administrative burden on Byrne (a one-person journalism shop responding to this subpoena in an
era in which media companies are struggling financially), the Court finds that the burdens of the
subpoena on Byrne, a third party, outweigh Guevara’s showing of mere potential relevance of the
information sought under Rule 45 and should not be enforced. Finally, the Court sees a number
of aspects of the subpoena as overbroad or unduly burdensome, such as the request for metadata
that would reveal Byrne’s editing of audio and video recordings. The Court does not reach those
25

issues in greater detail, having found that the subpoena’s mere potential relevancy does not
outweigh the burdens on Byrne for the reasons stated above.
CONCLUSION
For the foregoing reasons, Guevara’s Motion to Compel (D.E. 246) is denied.
SO ORDERED.
ENTER:

__________________________________
GABRIEL A. FUENTES
U.S. Magistrate Judge
Dated: November 22, 2024

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