11/3/2010

By Brittany Clement

The District Court for the Western District of Washington granted journalists a major victory in Jimenez v. City of Chicago, 2010 WL 3292665 (W.D. Wash. 2010), in which it applied the Ninth Circuit’s journalist’s privilege test to quash a subpoena of a student journalist’s notes.

The case involved Carolyn Nielsen, a former journalism graduate student at Northwestern University and current journalism professor in Washington. While a student and freelance journalist, Nielsen gathered several documents related to the case of Thaddeus Jimenez, who was convicted of murder at age 13 and sentenced to 45 years in prison. Nielsen eventually published an article about Jimenez’s trial and kept in contact with Jimenez via letters and phone calls. Jimenez’s conviction was reversed in 2009, and he subsequently sued six Chicago police officers involved in the original case.

The court applied the Ninth Circuit’s three-prong test for establishing journalist’s privilege: that the information sought is (1) unavailable after exhausting all reasonable alternative sources; (2) noncumulative; and (3) clearly and actually relevant to an important issue in the case. The court held that the police officers did not exhaust all reasonable alternative sources, as they could have simply deposed Jimenez; the correspondence was cumulative because it duplicated information the officers already had; and it was not relevant to the case because the officers sought to include it to impeach Nielsen, not to defend against Jimenez’s civil rights claim against them. The court also granted Nielsen’s motion for a protective order and granted Nielsen attorney fees and costs.

The case is important for journalists because in the absence of a federal journalist shield law, journalists are at the mercy of circuit court precedent when it comes to quashing subpoenas in federal court. The Ninth Circuit offers a straightforward three-prong test that protects journalists while recognizing limited circumstances in which the party issuing the subpoena could gain access to a journalist’s documents. The court states the test should be applied “strictly to ensure that compelled disclosure is the exception, not the rule.” By placing the burden on the party seeking the subpoena, the court grants journalists a broad privilege that a party may only rebut in very limited situations. Other federal courts would be wise to adopt the Ninth Circuit’s test and this court’s application of it.

This is especially true for the Seventh Circuit, where many of Nielsen’s interactions with Jimenez occurred and where Jimenez was tried for murder. The Seventh Circuit does not recognize journalist’s privilege, meaning had Nielsen not moved to Washington, she likely would have been compelled to disclose her correspondence with Jimenez. This is problematic for journalists within the Seventh Circuit’s jurisdiction, especially given the amount of large metropolitan newspapers in cities such as Chicago, Milwaukee and Indianapolis. Furthermore, students at Northwestern University, one the nation’s premier journalism schools, conduct serious investigations that hinge on confidential sources and privileged conversations with people such as Jimenez. It is an unwise policy to subject these aspiring journalists to potential subpoenas and the risk of being in contempt of court based on these projects that are vital to both their education and society at large.

Therefore, the Seventh Circuit and other circuits that fail to recognize journalist’s privilege should consider adopting the Ninth Circuit’s approach. Doing so will protect professional journalists and student journalists whose need for confidential sources and privileged conversations should almost always outweigh a court’s need for their information.