Ohio reporter’s subpoena for testimony in civil rights case quashed

Jeremy Pelzer, a reporter for Cleveland.com, was subpoenaed on May 22, 2023, to testify in a federal civil rights suit filed by a man incarcerated in Ohio, according to court documents reviewed by the U.S. Press Freedom Tracker.

The subpoena, which called for Pelzer to testify in a telephone deposition, was quashed July 27.

In the lawsuit, Lance Pough, imprisoned in 2000, alleged that members of the Ohio Parole Board used his race as a factor in their decision to deny his application for parole, in violation of the equal protection and due process clauses of the 14th Amendment. Pough, who is Black, filed his case in U.S. District Court for the Southern District of Ohio.

Pough’s complaint cited Pelzer’s January 2019 article about alleged unfair practices by the parole board. In the article — which does not mention Pough — former board member Shirley Smith claimed that she had “witnessed strongly biased opinions regarding cases, unprofessional behavior, unethical decisions, and a frighteningly unfair practice of tribal morality.”

Pough, who was representing himself, sought to depose Pelzer to “verify and authenticate” Smith’s quotes in the article, as well as responses to Smith’s allegations from then-parole board spokesperson JoEllen Smith.

In a July 26 motion to quash the subpoena, Pelzer argued that his testimony was not necessary, and that Pough should instead depose Shirley Smith and JoEllen Smith about their quotes and firsthand knowledge of the parole process.

The reporter also argued that the subpoena imposed an undue burden on his First Amendment rights protecting newsgathering activities from “attempts by civil litigants to turn non-party journalists or newspapers into their private discovery agents.”

The following day, U.S. Magistrate Judge Caroline Gentry quashed the subpoena but did not rule on the merits of Pelzer’s argument. Gentry wrote that Pelzer was served only as a result of a clerical error. Pough had filed a motion to strike from the record an amended notice of deposition on June 22, and at that time the subpoena was also “functionally withdrawn by Plaintiff and stricken from the record,” the judge wrote.

Pough filed a separate subpoena seeking Pelzer’s notes from his interviews with Shirley Smith and JoEllen Smith, which was quashed in February 2024.

Pelzer and his attorney, Daniel Kavouras, did not respond to a request for comment.