Reporter held in contempt for refusing deposition by Cueto

Belleville News-Democrat reporter George Pawlaczyk was held in contempt of court after he refused to give deposition testimony to Amiel Cueto in connection with a suit against the Chicago Tribune, the St. Louis Post-Dispatch, and the Illinois Civil Justice League and its political action committee, JUSTPAC.

Randolph County Associate Judge Richard Brown ruled Pawlaczyk was in contempt on Jan. 11 and fined him $10, but stayed the fine until the case is heard on appeal.

Brown also denied a motion by the Chicago Tribune to transfer the case to Cook County.

Cueto filed suit in early 2007 against the Illinois Civil Justice League and JUSTPAC, alleging that he was placed in a false light by a 2006 campaign advertisement against his brother, St. Clair County Circuit Judge Lloyd Cueto.

Amiel Cueto later amended his complaint and added the two newspapers as defendants after JUSTPAC noted that the statement in the campaign flyer challenged by Cueto had also appeared in numerous St. Louis Post-Dispatch news articles and in a 2003 Chicago Tribune editorial. Cueto then sought to take Pawlaczyk's deposition.

Pawlaczyk's attorney, Joseph Martineau, urged Brown to reconsider a Dec. 11 ruling ordering Pawlaczyk to submit to the deposition.

Martineau argued that the "special witness doctrine" required parties seeking to depose reporters to disclose what information is being sought, why it is relevant and necessary to the case, and what other means have been used to obtain the information. Martineau claimed Cueto had not made the requisite showing.

Cueto responded by submitting an affidavit at the hearing which he contended contained the necessary showing and revealed that he did not plan to question Pawlaczyk in his role as a reporter or about information he received from a confidential source.

"I am going to ask him questions about what he said to other people by way of gossip in his conversations," Cueto said.

After being given an opportunity to review Cueto's affidavit over the noon hour, Martineau contended that the affidavit was insufficient because it failed to show how the information sought from Pawlaczyk was relevant to Cueto's claim in the case.

Martineau also took issue with Cueto's assertion that he did not intend to ask Pawlaczyk questions about his role as a reporter.
Pawlczyk is "acting as a reporter. He's writing articles about the case. Obviously he is doing news gathering," Martineau added.

"And, again, why can't (Cueto) get that information somewhere else?" Martineau said.

But Brown disagreed, ruling that while Pawlaczyk was covered by the special witness rule, Cueto made a sufficient showing to require Pawlaczyk to submit to a deposition.

"I think (Cueto) has indicated that there's a legitimate connection between the witness and the facts that he's trying to investigate and produce," concluded Brown.

To obtain an immediate appeal of Brown's ruling, Pawlaczyk declined to submit to the deposition so that a contempt finding could be entered against him. Judge Brown accepted an agreement reached between Cueto and Martineau limiting the fine for the contempt to $10 and staying the fine pending appeal of the Court's decision.

At the hearing, Brown also denied the Chicago Tribune's motion to transfer the case to Cook County. The Tribune argued that a special venue statute provides that newspapers facing libel suits can only be sued where the principal office of the paper is located or where the article was written and published.

Cueto countered that his case against the paper did not allege libel, but rather false light invasion of privacy. He asserted that the Illinois Supreme Court had recognized, in Lovgren v. Citizens First National Bank, that libel and false light claims are separate torts.

Cueto argued that the venue statute on which the Tribune's motion was based was inapplicable to false light cases. He said, "You would have to rewrite the statute" to extend it to claims for false light invasion of privacy.

Tribune lawyer Debbie Berman of Chicago argued that, because false light and libel cases involve the same potential harm to the newspaper and Freedom of Press, the U.S. Supreme Court, the Illinois Supreme Court and many Illinois Appellate Courts have held that the same protections and restrictions apply to both kinds of claims.

Berman also contended that there was special reason to apply the venue statute to Cueto's false light claim because the complaint included an allegation that the statement at issue is defamatory per se and that it accuses him of a crime.

Brown disagreed, denying the Tribune's motion to transfer venue on the basis that Cueto's lawsuit was a false light case to which the special venue statute does not apply.

"It's going to be my ruling that this isn't a libel case and this is a proper venue, (so) that the statute you cite to the Court doesn't apply," Brown said.

At the Tribune's request, Brown agreed to certify his decision so the paper could seek to appeal the ruling immediately.