Subpoena quashed for reporter’s communications as part of Title IX lawsuit

California-based USA Today reporter Kenneth “Kenny” Jacoby was subpoenaed for source communications and other documents on Oct. 31, 2023, as part of a separate, ongoing lawsuit against multiple Louisiana universities. The subpoena was ultimately quashed on Dec. 21.

In a May 2021 article, Jacoby reported that various Louisiana schools and police forces failed to share relevant information with each other after multiple women reported the same college student for sexual misconduct.

One of the women cited in Jacoby’s reporting filed a lawsuit against two university systems and a local government in May 2022, alleging negligence and violations of her rights under Title IX. According to the complaint, the woman — identified only as Jane Doe to protect her identity — learned from Jacoby’s article that the universities had been aware of her assailant’s history of sexual misconduct before the attack against her.

The board of supervisors of the University of Louisiana System initially issued Jacoby a sweeping subpoena, which listed 28 requests for his communications, reporting materials and unpublished work product around the article.

After Jacoby filed a motion to quash the subpoena on Nov. 13, the university system agreed to limit the request to just his texts with Doe and notes from their conversations, as well as an affidavit authenticating and contextualizing them. The university system argued that the communications would prove that Doe had learned the material facts underlying her allegations earlier than she claimed and had missed the statute of limitations to file the lawsuit.

Jacoby provided an affidavit confirming that, as records already turned over by Doe had shown, his first contact with her was in December 2020. According to court records reviewed by the U.S. Press Freedom Tracker, the universities felt the affidavit was insufficient, while Jacoby maintained his objections to even the narrowed subpoena.

“As a journalist, I have ethical obligations to my sources. It is an essential aspect of my job to build trust with sources, even more so for highly sensitive subject matter like sexual assault,” Jacoby wrote in his affidavit. “I would not be able to do my job as an investigative reporter if sources did not believe that I would honor my confidentiality agreements. To me, this is both a legal matter and a matter of principle.”

A U.S. District Court judge granted Jacoby’s motion to quash the subpoena on Dec. 21, finding that the university system had failed to meet the necessary standards to justify impinging on journalistic protections.

“It is not enough that [the University of Louisiana System] hopes or even has a hunch that Jacoby’s documents will contradict Doe’s testimony and the other available evidence,” Magistrate Judge Allison Claire wrote in her decision.

When contacted by the Tracker, Jacoby declined to comment further because a second subpoena against him in the case is still pending.