Kelly Twigger and eDiscovery Assistant have once again written about an interesting case, this time about 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.  Once again, in doing so, they have saved me the trouble of having to find a case to write about.  In their blog post covering this case, eDiscovery Assistant notes it has identified 92 decisions so far this year discussing video evidence (926 overall), so it’s clear that audio and video evidence is more important than ever to address in discovery.

In Tate v. City of Chicago, No. 18 C 7439 (N.D. Ill. Aug. 3, 2020), Illinois Magistrate Judge Jeffrey T. Gilbert granted in part and denied in part CBS’s Motion to Quash Defendants’ Subpoenas Duces Tecum.  Judge Gilbert granted it to the extent that CBS “need not produce any notes or documents concerning interviews with Plaintiffs or any communications, correspondence, text messages or other messages between individuals at CBS, Plaintiffs, or Plaintiffs’ attorneys”.  But, he denied CBS’s motion to the extent “CBS is ordered to produce any and all video or audio recordings containing Plaintiffs’ statements regarding the search of their residence on August 9, 2018, and the events that followed”.

In the month prior to the search of plaintiffs’ home, CBS had begun investigating and producing news reports about allegations that the Chicago Police Department had improperly searched numerous residents’ homes and ultimately broadcast several news reports and a 28-minute documentary about the Chicago-area families who were allegedly the subject of improper searches by the Chicago Police Department, including the plaintiffs. 

In discovery, the defendants sought discovery of three categories of information from CBS pursuant to a third party subpoena under Rule 45 (which CBS opposed), including 1) any and all notes or other documents of interviews and statements made by the plaintiffs, 2) any and all video/audio ‘outtake’ recordings, or any video/audio not publicly disseminated containing statements of the plaintiffs and 3) 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.

Judge Gilbert 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. Judge Gilbert then moved to reviewing each of the three requests under Rule 45.  Starting with consideration of the video/audio clips, Judge Gilbert stated:

“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 a result, Judge Gilbert denied CBS’s motion to quash regarding the video/audio files, but granted CBS’s motion regarding the other two information categories, ruling that the burden on CBS outweighed the benefit to produce them.

You can read more about the case on the eDiscovery Assistant blog here, which has a link to the actual case opinion from their site and analysis of the case.  Enjoy!

So, what do you think?  Will a decision like this cause more parties in litigation to emphasize audio and video evidence discovery?  Please share any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by my employer, my partners or my clients. eDiscovery Today is made available solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Today should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.