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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
KEITH COOPER,

)
)
v.
)
)
CITY OF ELKHART, STEVE
)
REZUTKO, EDWARD WINDBIGLER, )
STEVEN AMBROSE and TOM
)
CUTLER, in their individual capacities, )
)
Defendants. )
Plaintiff,

Case No. 3:17 CV 834 PPS MGG

MEMORANDUM OF LAW
IN SUPPORT OF MOTION TO QUASH SUBPOENA
This Court should quash or modify the Subpoena issued to the South Bend Tribune by
counsel for the City of Elkhart in this case. The Subpoena imposes an undue burden given its
tendency to undermine the Tribune’s function as a purveyor of information on issues of public
interest and concern. In addition, the Subpoena requires the disclosure of confidential commercial
information and trade secrets which are proprietary to the Tribune. The City cannot meet its burden
to show that the information requested is highly relevant, material to its defenses, and not available
from another source.

I. Factual Summary
The South Bend Tribune is a daily newspaper of general circulation in the City of South Bend
and surrounding communities. (Exhibit 1 to Motion, Declaration of Cory Havens, ¶ 2.) The Tribune
is published by South Bend Tribune Corp., an Indiana corporation which maintains its principal
office in South Bend, Indiana. The City of Elkhart, Indiana is within the Tribune’s circulation area.

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(Exh. 1, Havens decl., ¶ 2.) One of the principal functions of the newspaper is to inform the public
about the functions of local government, including local police departments. (Id.)
The Tribune has published several news articles and opinion pieces about Keith Cooper.
(Exh. 1, Havens decl., ¶ 4.) As the Court is aware, Mr. Cooper is an individual who was convicted
of armed robbery in the Superior Court of Elkhart County, Indiana in 1997. Mr. Cooper was released
from prison in April 2006 after filing a motion seeking a new trial. He subsequently received a
pardon from Indiana Governor Eric Holcomb with respect to his robbery conviction in February
2017. (See, Exh. 1, Havens decl., ¶ 3.)
In the course of their work on the Cooper story, reporters employed by the Tribune have
gathered information from numerous sources. Tribune reporters have consulted publicly-available
documents such as court filings and transcripts, materials obtained through Public Records Act
requests, and judicial opinions. They have also interviewed numerous people who had information
about the story, including Mr. Cooper and Elliot Slosar. (Exh. 1, Havens decl., ¶ 5.) Some — but
not all — of this information has been published in the articles which have appeared in the Tribune.
(Exh. 1, Havens, decl., ¶ 7.)
The Tribune takes very seriously its obligation to the public to act as a neutral provider of
information about matters of public concern or interest. (See, Exh. 1, Havens decl., ¶ 9.) At the same
time, as a commercial entity, the Tribune safeguards the information it gathers, prior to publication,
using reasonable means to prevent disclosure. (Exh. 1, Havens decl., ¶ 8.) This information is
confidential and proprietary to the Tribune. (Id.) It has value to the newspaper by virtue of not being
known to the Tribune’s competitors or the general public. (Id.)

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On June 27, 2018, counsel for the City of Elkhart in this matter served the Tribune with a
subpoena seeking “[c]orrespondence, letters, e-mails, texts, memos, or other documents showing any
communications or meetings between” Mr. Cooper or his attorneys, on the one hand, “and anyone
from the South Bend Tribune news organization” on the other, regarding Mr. Cooper, his pardon
request, or any of the allegations in the Cooper v. Elkhart lawsuit, in the period January 2009 to
present. (Exhibit 2 to Motion, Subpoena to Tribune, rider.)
The Tribune (including its editors, reporters, and other employees) does not have any letters
or memos which reflect any communications between Mr. Cooper or his attorneys, on the one hand,
and any person associated with the Tribune, on the other. (Exh. 1, Havens decl., ¶ 7.) The only
material which is potentially responsive to the Subpoena issued by the City of Elkhart, which is
within the Tribune’s possession, are text messages and e-mails with counsel for Mr. Cooper;
reporter’s notes from interviews with Mr. Cooper and his counsel; video of an interview of Mr.
Cooper by a Tribune reporter; and audio recordings of Mr. Cooper and his counsel. (Id.) Some of
this information in these materials has been reported in the articles published by the Tribune. (Id.)
After receiving the Subpoena, the Tribune had its counsel contact the City of Elkhart’s
attorney to discuss the same. (See, L.R. 37-1 Certificate of Compliance, filed herewith.) On July 6,
2018, undersigned counsel for the Tribune telephoned Martin W. Kus, the attorney for the City of
Elkhart who signed and issued the Subpoena. The purpose of the call was to discuss whether the
Subpoena could be withdrawn or narrowed. (Id., ¶ 2.) In the course of the ensuing conversation, Mr.
Kus divulged that he had issued “the same request” to Mr. Cooper and his counsel. (Id.) He further
stated that, upon receipt of the documents, he intends to “cross-reference” and compare the responses
from Mr. Cooper and the Tribune. (Id.) Mr. Kus also asserted that the South Bend Tribune has been
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“participating” in the litigation in a way that goes beyond merely reporting on events. (Id.) He would
not explain why or how the requested materials are material to the defense of his client, the City of
Elkhart. (Id.) Mr. Kus refused to withdraw the Subpoena or narrow its scope. (Id.)
The Subpoena issued to the it has caused the Tribune to expend time and money in
responding to the Subpoena, and it threatens to harm the Tribune’s reputation. First, the Subpoena
severely burdens the Tribune’s news gathering activities. (Exh. 1, Havens Decl., ¶ 9.) As part of their
duties, Tribune reporters regularly cover trials, hearings, and local controversies that are matters of
public concern or interest. The Tribune expends significant resources to collect information, prepare
articles, and publish the newspaper. (Id.) Were litigants able to able to require the Tribune to turn
over the fruits of these investigative efforts by issuing subpoenas, the Tribune would be significantly
hampered in its ability to cover public controversies. (Id.) The Tribune would expend time and
resources in responding to these requests (as it has in addressing the Subpoena issued by the City of
Elkhart). Moreover being drawn into a controversy through a subpoena would undermine the
newspaper’s credibility. (Id.) This is because giving information, even unwillingly, to a litigant in
a case the Tribune has covered will tend to diminish the perception among readers (and potential
sources of information) that the newspaper is an unbiased publisher of information. (Id.)

II. Analysis
This Court should quash or modify the Subpoena served upon the Tribune on grounds that
it subjects the Tribune to an undue burden by interfering with its functions as a newsgathering entity,
because it requires disclosure of privileged or other protected information which trade secrets and
confidential commercial information proprietary to the Tribune.

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A. Standards for Decision
A party seeking to quash a subpoena under Rule 45(d)(3) bears the burden of demonstrating
that the information sought is privileged or that the subpoena subjects a person to an undue burden.
Illiana Surgery & Med. Ctr. LLC v. Hartford Fire Ins. Co., No. 2:07 cv 3, 2012 WL 776694, at *3
(N.D. Ind. Mar. 7, 2012); see also, Wauchop v. Domino’s Pizza, Inc., 138 F.R.D. 539, 543 (N.D. Ind.
1991). Thereafter, a district court’s decision whether to quash or modify a subpoena is reviewed for
abuse of discretion. Mitchell v. City of Chicago, 862 F.3d 583, 586 (7th Cir. 2017), cert. denied sub
nom. Mitchell v. City of Chicago, Ill., 138 S. Ct. 683 (2018); Ott v. City of Milwaukee, 682 F.3d 552,
556 (7th Cir. 2012). “As with other discovery issues, deciding whether to grant a motion to quash
lies within the sound discretion of the district court.” Malibu Media, LLC v. John Does 1-14, 287
F.R.D. 513, 516, 2012 WL 6115653 (N.D. Ind. 2012). The same is true as to the decision to enter
or withhold a protective order. Sims v. New Penn Financial LLC, 2017 WL 3297779, at *4 (N.D.
Ind. Aug. 2, 2017); accord, Citizens First Nat’l Bank of Princeton v. Cincinnati Ins. Co., 178 F.3d
943, 944 (7th Cir. 1999).

B. Discussion
The Subpoena issued by the City of Elkhart should be quashed or modified because it (1)
subjects the Tribune to an undue burden by interfering with the its activities as a news gathering
entity; and (2) requires the disclosure of privileged or protected matter, specifically unpublished
information collected by Tribune reporters, which constitute trade secrets and confidential
commercial information proprietary to the Tribune. Cf., Fed. R. Civ. Pro. 45(d)(3)(A), (B). Persons
who, like the Tribune, are not parties to the litigation “are not treated exactly like parties in the

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discovery context.” Patterson v. Burge, 2005 WL 43240 at *1 (N.D. Ill. Jan. 6, 2005). Rather, “nonparties are entitled to somewhat greater protection,” which includes weighing the need for the
subpoenaed material against the burden involved in its production. Id.; see also, Northwest Mem’l
Hospital v. Ashcroft, 362 F.3d 923, 931 (7th Cir. 2004). As this Court has recognized, “[n]on-parties
have a different set of expectations . . .” such that “concern for the unwanted burden thrust upon nonparties is a factor entitled to special weight in evaluating the balance of competing needs.” Lee v.
City of Elkhart, 2013 WL 1754977 at *3 (N.D. Ind. April 22, 2013).
A non-party’s “[b]urden in this context means more than mere administrative hardship” and
“encompasses the interests that enforced production would compromise or injure.” Patterson at *1.
Where a subpoena subjects the witness to an undue burden, the court must quash or modify the
subpoena. Fed. R. Civ. Pro. 45(d)(3)(A).

1. The Subpoena Imposes an Undue Burden on the Tribune
Even where a federal common law journalist’s privilege is not available,1 First Amendment
concerns require that the proponent of a subpoena to a newspaper demonstrate, at minimum, that the
information sought is relevant and material, and that it cannot be secured from another source. Longs
v. Lebo, 2009 WL 799533 at *3-4 (N.D. Ind. Mar. 4, 2009); see also, Hobley v. Burge, 223 F.R.D.
499, 504-505 (N.D. Ill. 2004). “When determining whether to enforce a discovery request, the court
must weigh the need for the information, the breadth of the request, the time period the discovery
covers, the particularity of the documents, and the burden imposed.” Lee, 2013 WL 1754977 at *3

1

See, McKevitt v. Pallasch, 339 F.3d 530 (7th Cir. 2003).
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In this case, foremost among the Tribune’s “interests that enforced production would
compromise or injure,” Patterson at *1, is the way in which the Subpoena (and others like it)
interfere with the Tribune’s function to report on issues of public controversy or interest. As
explained by the paper’s managing editor for news, the Subpoena issued by the City of Elkhart
severely burdens the Tribune’s news gathering activities. (Exh 1., Havens decl., ¶ 9.) Permitting a
litigant to commandeer the efforts of Tribune reporters through a subpoena harms the newspaper’s
reputation. “This is because giving information, even unwillingly, to a litigant in a case the Tribune
has covered will tend to diminish the perception among readers (and potential sources of
information) that the newspaper is an unbiased publisher of information.” (Id.)
Many courts have recognized the harm to First Amendment interests threatened by non-party
subpoenas to media entities. “The compelled production of a reporter’s resource materials can
constitute a significant intrusion into the newsgathering and editorial process. Like the compelled
disclosure of confidential sources, it may substantially undercut the public policy favoring the free
flow of information to the public . . . .” May v. Collins, 122 F.R.D. 535, 540 (S.D. Ind. 1988), citing
United States v. Cuthbertson, 630 F.2d 139, 147 (3rd Cir. 1980). As one district court presciently
observed, “[g]iven the important role that newsgathering plays in a free society, courts must be
vigilant against attempts by civil litigants to turn non-party journalists or newspapers into their
private discovery agents.” In re Daimler Chrysler AG Securities Litigation, 216 F.R.D. 395, 406
(E.D. Mich 2003). That court went on to opine that use of subpoenas in this fashion would
undermine journalists’ ability to discharge their basic function:
If the parties to any lawsuit were free to subpoena the press at will, it would likely
become standard operating procedure for those litigating against any entity that had
been the subject of press attention to sift through the press files in search of
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information supporting their claims. The 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 . . . .
Daimler Chrysler, at 406, quoting Gonzales v. National Broadcasting Co., Inc., 194 F.3d 29,
35 (2d Cir.1999).
Courts within this circuit, including this Court in Lee v. City of Elkhart, supra, and in Longs
v. Lebo, supra, have recognized that a significantly higher standard than “mere relevance” or
“possible usefulness” must be met before production is compelled from a newspaper. As a sister
court in Illinois explained “[s]ince the press is involved in collecting information about all manner
of things and circumstances that frequently end up in litigation, if 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.” Patterson, at *3. The court
recognized that “news organizations’ efforts to maintain their independence and gain the trust of
sources is an interest that will be severely impaired if mere relevance . . . makes their non-public
records available on request.” Id. And as it further acknowledged, “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”
such that “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.” Id.
Tribune managing editor Cory Havens has explained that the Subpoena places a significant
burden on the paper and threatens to disrupt its news gathering activities by undermining the paper’s
credibility with potential sources and the general public. (Exh. 1, Havens decl., ¶ 9.) Enforcing the

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Subpoena would also plainly interfere with the newspaper’s journalistic and editorial processes, as
civil litigants seize materials such as reporter’s notes. In Longs, this Court quashed a civil litigant’s
subpoena to Nancy Sulok, who had been employed by the South Bend Tribune as a reporter and
columnist. In so doing, the Court found that Indiana public policy expressed in the Shield Law, Ind.
Code § 34-45-4-1, supported the conclusion that “journalists possess a qualified privilege . . . not
to disclose unpublished information which was in their possession gathered as part of the
newsgathering process.” Id., 2009 WL 799533 at *4, citing May, 122 F.R.D. at 540.2 The Court then
quashed the subpoena, which sought unpublished information held by the Tribune, on grounds that
the proponent had failed to meet his burden to show materiality and relevance. Id. at *4.
Among its reasons for quashing the subpoena, the Court in Longs found that the proponent
had failed to demonstrate “that the information sought . . . can’t be secured from any other source.”
Id. at *4. In this case, the City’s counsel has stated that he has served “the same request” to the
plaintiff, Mr. Cooper, as is contained in his Subpoena to the Tribune. (See, Certificate of
Compliance, filed herewith, ¶ 2.) At minimum, this indicates that the information and materials
sought by the City can be secured through its discovery request to the plaintiff. This fact ought to
weigh heavily against requiring production of the same evidence from the Tribune.
In Lee, this Court likewise quashed a subpoena issued to a reporter, seeking “statements,
notes, tape recordings, records, reports, files, correspondence, CDs, summaries, dates, telephone
records, and transcripts” relating to stories published by the Elkhart Truth. Id., 2013 WL 1754977
2

Federal public policy is in accord. See, “Policy regarding obtaining information from, or
records of, members of the news media; and regarding questioning, arresting, or charging members
of the news media,” codified at 28 C.F.R. § 50.10 (“safeguarding the essential role of the free press
in fostering government accountability and an open society” is to be considered in “determining
whether to seek information from, or records of, members of the news media”).
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at *4. The court found that the proponent had failed to “demonstrate why he needs the information
[or] how the information sought is relevant” and had not shown that the information “cannot be
obtained from other sources.” Id. Here, the City has in effect admitted that the information it seeks
can be obtained from Mr. Cooper. Its Subpoena imposes an unjustifiable and therefore undue burden
on the Tribune’s operations as a news gathering entity.

2. The Subpoena Improperly Seeks Disclosure of Unpublished
Confidential Commercial Information and Trade Secrets
The Subpoena should also be quashed or modified because it requires the disclosure of
privileged or protected matter, specifically unpublished information collected by Tribune reporters,
which constitute trade secrets and confidential commercial information that is proprietary to the
Tribune. The Tribune expends significant resources to gather information which is used as the bases
for the news articles and opinion pieces it publishes. (Exh. 1, Havens decl., ¶¶ 5, 9.) In this case,
Tribune reporters have expended hundreds of hours in their work on the Keith Cooper story and
related matters. (Exh. 1, Havens decl., ¶ 9.) They have gathered numerous items of documentation
including court filings and transcripts, and they have interviewed various persons. (Exh. 1, Havens
decl., ¶ 5.) Articles have been written, edited, and published. (Exh. 1, Havens decl., ¶ 4.)
Not all of the information collected through the efforts of the Tribune’s journalists has been
published. (Exh. 1, Havens decl., ¶ 7.) As explained by Mr. Havens, the information gathered by
the Tribune’s staff is confidential, and proprietary to the newspaper. (Exh. 1, Havens decl., ¶ 8.) The
Tribune takes reasonable steps to prevent pubic disclosure of unpublished information in its
possession. (Id.) The Tribune expends significant resources to gather the information which goes
into its articles. (Exh. 1, Havens decl., ¶¶ 5, 8.) All of this information has value to the Tribune by
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virtue of not being known (prior to publication) by the general public or to the Tribune’s
competitors. (Exh. 1, Havens decl., ¶ 8.) Thus, information gathered by Tribune employees —
particularly once arranged through the reporting and editorial process by the newspaper’s staff —
qualifies as trade secrets under the applicable statue, Ind. Code § 24-2-3-2.3 It is also indisputably
“confidential research . . . or commercial information” within the meaning of Fed. R. Civ. Pro.
45(d)(3)(B)(i).
It is well-established that “Rule 45(c) explicitly permits the court to protect against the
disclosure of trade secrets and other confidential commercial information . . . .” Patterson, at *3.
Moreover, “[t]here is nothing in the Federal Rules that suggests that research for the purpose of news
reporting [not to speak of editorial judgments about what should and should not be published] is to
be given less protection than research for the purpose of product development.” Id., citing Hobley,
223 F.R.D. at 505. In Hobley, the court granted a reporter’s motion to quash a subpoena which
sought production of his notes detailing conversations with the plaintiff, Mr. Hobley. Id., at 505.
This decision was based in part on the court’s discussion of the protections extended trade secrets
and confidential commercial information under what is now Rule 45(d)(3)(B).
Similarly, in Patterson, the court cited the discussion of these protections in Hobley with
approval while quashing a subpoena to a news organization which sought recordings of interviews
with Mr. Patterson. Id., 2005 WL 43240 at *3-4. In so doing, the court found that “[t]o the extent
the news organizations’ resources are squandered providing information to civil litigants . . . or the
3

The statute defines a “trade secret” as “information, including a formula, pattern,
compilation, program, device, method, technique, or process, that: (1) derives independent economic
value, actual or potential, from not being generally known to, and not being readily ascertainable by
proper means by, other persons who can obtain economic value from its disclosure or use; and (2)
is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.”
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commercial value to the involved news organizations of the judgments involved in investigating and
selecting material for publication dissipated as their ‘work product’ becomes fair game for civil
litigants in their relentless quest to ‘discover’ everything, the news organizations become the
indentured servant of the litigants, and their ability to do their important work will be severely
impaired. The kind of discovery requested here not only burdens the news organizations but burdens
the public interest in a robust press.” Id. at *3. As in these cases, there is no justification for the
forced production of confidential commercial information or trade secrets from the Tribune. The
Court should therefore quash or modify the Subpoena issued by the City of Elkhart.

III. Conclusion
The Subpoena issued by the City of Elkhart imposes severe burdens upon the South Bend
Tribune and threatens to undermine its function as a newsgathering entity. It also requires the
production of privileged or protected matter in the form of confidential commercial information and
trade secrets. Moreover the information sought is available from a party to this action. The Court
should quash or modify the Subpoena to the Tribune.
Respectfully submitted,
EICHHORN & EICHHORN, LLP

/s/ John P. Twohy
By:_________________________________
One of the attorneys for
South Bend Tribune Corp.
EICHHORN & EICHHORN, LLP
ATTORNEYS AT LAW
2929 Carlson Drive, Suite 100
Hammond, Indiana 46323
Tel. (219) 931-0560
jtwohy@eichhorn-law.com
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CERTIFICATE OF SERVICE
I, John P. Twohy, hereby certify that on the

26th

day of July 2018, true and

complete copies of the foregoing Memorandum of Law in Support of Motion to Quash or Modify
Subpoena, were served upon:
Elliot R. Slosar
Gayle M. Horn
Heather Lewis Donnell
Jon Loevy
LOEVY & LOEVY
311 N Aberdeen Street, 3rd Floor
Chicago, Illinois 60607
Andrew S. Williams
Michelle K. Floyd
HUNT SUEDHOFF KALAMAROS LLP
803 S Calhoun Street, Suite 900
Fort Wayne, Indiana 46858
Martin W. Kus
Matthew J. Hagenow
Nicholas T. Otis
NEWBY LEWIS KAMINSKI & JONES LLP
916 Lincolnway
LaPorte, Indiana 46350
by e-mail, via the Case Management / Electronic Case Files (CM / ECF) System maintained by the
Clerk for the United States District Court for the Northern District of Indiana.
/s/ John P. Twohy
John P. Twohy
EICHHORN & EICHHORN, LLP
ATTORNEYS AT LAW
2929 Carlson Drive, Suite 100
Hammond, Indiana 46323
Tel. (219) 931-0560
jtwohy@eichhorn-law.com
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