There’s no question that the U.S. is in a state of civil unrest, and that unrest is bound to show up in litigation. The recent and ongoing #chicagoriots loom large as I type, and issues of gun violence and police brutality have dominated the 24 hour news cycle. We have work to do as a country, no question. And that work will involve the discovery of what we call non-standard forms of data, including video evidence.

Part and parcel of that shift means that the work done by journalists to shed light on these issues are at the forefront of ediscovery in civil rights cases. In the latest of multiple discovery decisions in Tate v. City of Chicago, the court denied CBS Broadcasting’s motion to quash a third party subpoena under FRCP 45 and compelled production of video or audio outtake recordings of plaintiffs’ statements made during CBS’ investigation and subsequent airing of the related story.

Tate involves a § 1983 civil rights action against the City of Chicago for unlawful search, false arrest, and false imprisonment following the search of plaintiffs’ home pursuant to a search warrant. Officers were searching for a convicted felon allegedly in possession of a semi-automatic handgun, a tip they received from a confidential informant. The complaint alleged that in executing the warrant, officers:

[R]epeatedly pointed machine guns or assault rifles at Plaintiffs, four of whom are minor children. According to Plaintiffs, the family was made to sit outside of the home for over an hour, exposed to the elements, while the search was conducted. Cynthia Eason, one of the Plaintiffs and the grandmother of the minor children who were present, was allegedly forced to sit outside in nothing more than a t-shirt and underwear during that time.

In the month prior to the search of plaintiffs’ home, CBS Broadcasting had begun investigating and producing news reports about allegations that the Chicago Police Department had improperly searched numerous residents homes. CBS’ first broadcast a news report on the incident at plaintiffs’ home in November 2018. CBS subsequently broadcast at least two additional news reports concerning the search of plaintiffs’ home or discussing plaintiffs themselves, and then later produced and broadcast a 28-minute documentary about the Chicago-area families who were allegedly the subject of improper searches by the Chicago Police Department, including plaintiffs.

In discovery, Defendants sought discovery of three categories of information from CBS pursuant to a third party subpoena under Rule 45, including:

  • From August 9, 2018 to the present, any and all notes or other documents of interviews
    and statements made by the plaintiffs;
  • From August 9, 2018 to the present, any and all video/audio ‘outtake’ recordings, or any video/audio not publicly disseminated containing statements of the plaintiffs; and 
  • From August 9, 2018 to the present, any and all communications, correspondence, text messages or other messages between Dave Savini, or any other CBS employee, and any of the above listed individuals named in Requests 1 and 2, and/or their respective attorneys.

CBS opposed the subpoena on two grounds:  That the reporter privilege precluded discovery, and that proportionality and their status as a media party dictated quashing the subpoena. In CBS’s words, “compliance with the subpoenas would impose an undue burden on them under Rule 45(d)(3)(A)(iv) because of their status as a non-party media organization and the potential volume of material responsive to the above requests.”

In addressing the three categories, Magistrate Judge Gilbert provided an excellent review of the analysis under Rule 45 and the factors on a motion to quash:

The issue before the Court, then, rests squarely on a determination under Federal Rules of Civil Procedure 26 and 45. Rule 45 empowers a party to issue a subpoena directing a non-party to produce documents or other items in that person’s possession, FED.R.CIV.P. 45(a)(1)(A)(iii), yet this power is not unlimited. “A party or attorney responsible for issuing and serving 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), and courts “must quash or modify a subpoena that…subjects a person to undue burden.” FED.R.CIV.P. 45(d)(3)(A)(iv). Courts should further 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.”

Whether a subpoena is “reasonable in the circumstances” or imposes an “undue burden” is a case-specific inquiry: there is “no formula for determining reasonableness.” United States v. Banks, 540 U.S. 31, 36 (2003). Nor is any “category of information or class of witness [ ] immune from subpoena.” Mosely, 252 F.R.D. at 427. Rather, whether to quash a subpoena rests squarely within the court’s discretion, Griffin v. Foley, 542 F.3d 209, 223 (7th Cir. 2008), with due consideration to the following factors: “(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.” Taylor v. City of Chicago, 2015 WL 6561437, at *3 (N.D. Ill. 2015) (citing Mosely, 252 F.R.D. at 427); see also, Northwestern Memorial Hospital v. Ashcroft, 362 F.3d 923, 927 (7th Cir. 2004).

The Court dismissed the application of the reporter privilege as well-settled law in the 7th Circuit and found that even if applicable, CBS had waived the privilege by failing to comply with Rule 45’s requirements. The Court then moved to reviewing each of the three requests under Rule 45 and honed in on the one request it allowed — Defendant Officers’ request for any and all video or audio outtake recordings, or any video or audio not publicly disseminated containing Plaintiffs’ statements — and found that the video requested was both relevant and reasonable, went straight to the heart of the case and CBS was the only source from which it was available:

When the Court balances the burden of compliance against the benefits of the requested production of these video or audio clips, any recorded statement made by Plaintiffs about the subject matter that is at the very heart of this litigation is clearly relevant to the claims and defenses in this case and proportionate to the needs of the case. It is further likely, if not definite, that CBS’s compliance with the above subpoena request will result in production of the information sought. Whatever the ultimate probative value of the additional video and audio sought, both CBS and Defendant Officers agree that CBS is, in fact, in possession of unedited footage of interviews with Plaintiffs. So, too, is CBS the only source from which such information could readily be obtained. Although the Court recognizes there will be some burden on CBS to compile the video and audio files requested, the likely benefit significantly outweighs this burden. Plaintiffs’ statements, captured verbatim in audio and video form currently in CBS’s exclusive possession, are not only substantively relevant to the claims and defenses in this case, but highly relevant to possible damage calculations and credibility determinations at trial.

As to the request for all notes regarding interviews, the Court found the request was cumulative, that the videos were the best evidence, and the burden on CBS to produce them outweighed any additional benefit:

As for the request that CBS produce any and all notes or other documents of interviews and statements made by Plaintiffs, the Court finds this subpoena is unreasonably cumulative and unduly burdensome as framed. Although court-ordered compliance with the above request would likely result in production of some responsive notes or documents, that information is almost certain to be cumulative of the video or audio recordings that ultimately memorialize those interviews, which the Court has ordered CBS to produce. The video and audio recordings are also likely to be the best evidence of Plaintiffs’ statements to CBS, as contrasted with the personal notes of a reporter who would assuredly need to be deposed (and CBS undoubtedly would object to such a deposition) in order to decipher the notes and render them in any way useful for trial. The particular burdens demonstrated by CBS in this case – namely, the hours that would be required to compile any responsive notes or documents from any reporter or employee involved in Plaintiffs’ interviews over the past eighteen months of news production on the Chicago-area searches – outweigh any minimal benefit to either side in this case from production of those materials or the relevance of those materials to the claims and defenses raised.

The Court denied defendants third request for communications and text messages also on proportionality and best evidence grounds:

Finally, the Court declines to order production of any communications, correspondence, text messages or other messages between individuals at CBS, Plaintiffs, or Plaintiffs’ attorneys for many of the same reasons discussed above. Not only have Defendant Officers failed to show that the likely benefit of this material outweighs the significant burden compliance would impose on CBS under Rule 45, but the information sought is readily available from Plaintiffs themselves. Plaintiffs are a more convenient, less burdensome, and equally reliable source of the information Defendant Officers’ seek, particularly given Plaintiffs’ status as parties to the litigation and CBS’s own status as a non-party media organization.

The Court’s reasoning in Tate is clear and concise on applying proportionality considerations of Rule 26 to the third party request under Rule 45, and it’s decision here is a lesson for those parties both issuing and defending third party subpoenas. First, know the rule. CBS waived any ability to have the reporter privilege apply by not following the rules requirements. Next, consider the specifics of what is relevant, reasonable, and whether the data sought is cumulative of an additional request.  Requests for production often overlap in discovery, and the best evidence rule needs to be considered. Finally, remember that where evidence is available from another source, a court is less likely to compel a third party to produce it. Paint the picture for the court out of the gate and make the judge’s job easy.

The advent of police body cameras and cell phones taking video at every step have increased the prevalence of video as a compelling source of ESI in discovery. Tate is one of 926 decisions discussing video evidence in eDiscovery Assistant, 92 of which have come down since January 1, 2020. If you aren’t prepared to ask for and deal with video, you need to be. Your clients will demand it.