Subpoena quashed for Ohio reporter’s documents in civil rights case

Jeremy Pelzer, a reporter for Cleveland.com, was subpoenaed on Aug. 10, 2023, to turn over documents 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.

A motion to compel Pelzer to comply with the subpoena was quashed on Feb. 5, 2024.

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.”

In the Aug. 10 subpoena, Pough, who was representing himself, ordered Pelzer to turn over by Aug. 25 any documents relating to or referring to Shirley Smith, including interview notes, interview transcripts, emails, phone texts and electronically stored documents. It also sought his communications with then-parole board spokesperson JoEllen Smith about Shirley Smith’s claims.

Pelzer filed an objection to the subpoena on Aug. 24. Pough followed on Oct. 9 with a motion to compel Pelzer’s compliance.

But Pelzer, in a Nov. 2 response opposing the motion to compel, argued that Pough should instead obtain the information firsthand from Shirley Smith and Jo Ellen Smith, who had already been subpoenaed in the case.

He also asserted that subpoena imposed an undue burden on his First Amendment guarantees, which protect newsgathering activities from “attempts by civil litigants to turn non-party journalists or newspapers into their private discovery agents.”

U.S. Magistrate Judge Caroline Gentry denied the motion to compel on Feb. 5, 2024, ruling that the court must limit discovery that “can be obtained from some other source that is more convenient, less burdensome, or less expensive.” The judge did not consider Pelzer’s First Amendment claims.

Pough objected on March 1 to Gentry’s ruling, but U.S. District Judge Michael Watson overruled the objection on March 19.

Pough had also earlier filed a separate subpoena seeking Pelzer’s testimony about his interviews with Shirley Smith and JoEllen Smith, which was quashed in July 2023.

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