Scott v. City of Peoria et al
Filing
59
ORDER granting 57 Motion to Compel. See written order. Entered by Magistrate Judge John A. Gorman on 10/25/11. (WW, ilcd)
E-FILED
Tuesday, 25 October, 2011 04:07:12 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
Bryce R. Scott,
Plaintiff
v.
City of Peoria, et al,
Defendants
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Case No. 09-1189
ORDER
Now before the Court is the Plaintiff’s Motion to Compel (#57). The motion is fully briefed,
and I have carefully considered all of the submissions of the parties. For the following reasons, the
Motion to Compel is GRANTED.
INTRODUCTION
In this case, Plaintiff alleges that the individual defendants were involved in the use of
excessive force during a traffic stop. In addition to the individual liability of the police officers,
Plaintiff has asserted a Monell claim against the City of Peoria.
The underlying events resulted in an internal investigation conducted by the Peoria Police
Department. Plaintiff has sought to obtain the documents relating to that investigation. Defendants
initially asserted a blanket “self-critical analysis privilege.” After months during which the parties
attempted to resolve the dispute, Defendants produced a privilege log and asserted a second
privilege, the “executive privilege.” In addition, Defendants have challenged the relevance of some
of these documents.
PRIVILEGE GENERALLY
1
The Federal Rules of Civil Procedure provide that parties “may obtain discovery regarding
any nonprivileged matter that is relevant to any party’s claim or defense.” Fed.R.Civ.P. 26(b)(1).
A party declining to produce discovery on the grounds that it is privileged has the burden of
establishing the existence of the privilege as well as its applicability in the particular situation. Bank
of America v. Veluchamy, 643 F.3d 185 (7th Cir. 2011); U.S. v. Tratner, 511 F.2d 248, 251-52 (CA7
1975); F.T.C. v. Shaffner, 626 F.2d 32, 37 (7th Cir.1980). Blanket claims of privilege are not
acceptable. Holifield v. U.S., 909 F.2d 201, 204 (7th Cir. 1990); U.S. v. White, 970 F.2d 328, 334
(7th Cir. 1992); Shaffner, 626 F.2d at 37.
Privileges are construed narrowly and the requirements for establishing privilege are strictly
enforced, because privileges are viewed as being in derogation of the search for truth. , University
of Pennsylvania v. EEOC, 493 U.S. 182, 189 (1990); U.S. v. Nixon, 418 U.S. 683, 710 (1974);
Valero v. U.S., 569 F.3d 626, 630 (7th Cir. 2009); U.S. v. BDO Seidman, LLP, 492 F.3d 806, 815
(7th Cir. 2007). A privilege is therefore applied only where necessary to achieve its purpose, BDO
Seidman, 492 F.3d at 815, and only where it “has a public good transcending the normally
predominant principle of utilizing all rational means for ascertaining truth.” Trammel v. U.S., 445
U.S. 40, 50 (1980).
In federal question cases, such as the one now before this Court, privilege is “governed by
the principles of the common law as they may be interpreted by the courts of the United States in
the light of reason and experience.” Fed.R.Evid. 501. In federal question cases, the general rule is
that only federal privileges are applicable; state law privileges are not incorporated into federal
common law. EEOC v. Illinois Dept. of Employment Sec., 995 F.2d 106 (7th Cir. 1993).
Notwithstanding that general rule, comity between state and federal governments “impels federal
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courts to recognize state privileges where this can be accomplished at no substantial cost to federal
substantive and procedural policy.” Memorial Hospital for McHenry County v. Shadur, 664 F.2d
1058, 1061 (7th Cir. 1981).
The Federal Rules also address the manner in which privilege is to be asserted. A party
withholding discoverable information on the ground of privilege must “(i) expressly make the claim;
and (ii) describe the nature of the documents ... not produced or disclosed - and do so in a manner
that, without revealing information itself privileged or protected, will enable other parties to assess
the claim.” Fed.R.Civ.P. 26(b)(5)(A).
SELF-CRITICAL ANALYSIS PRIVILEGE
More than 15 years ago, the Seventh Circuit noted the “prevailing view” that self-critical
portions of affirmative action plans are privileged, noting that the “bounds of the privilege depend
on the extent to which the policy of equal opportunity in employment will best be served in the
particular circumstances presented by each case.” Coates v. Johnson & Johnson, 756 F.2d 524, 551
(7th Cir. 1985). In Burden-Meeks v.Welch, 319 F.3d 897 (7th Cir. 2003), the Court declined to
elaborate on the privilege, finding it unnecessary to decide the questions whether the “novel”
privilege of self-critical analysis exists and if so, its scope.
Other than these two cases, the Seventh Circuit has not spoken to the self-critical analysis
privilege. Hence, this Court must evaluate this privilege under the general principles discussed in
the preceding section, beginning with the question whether the privilege exists at federal common
law. As the Memorial Hospital Court explained, that examination should be guided by two basic
concepts:
First, because evidentiary privileges operate to exclude relevant evidence and thereby block
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the judicial fact-finding function, they are not favored and, where recognized, must be
narrowly construed. Second, in deciding whether the privilege asserted should be
recognized, it is important to take into account the particular factual circumstances of the
case in which the issue arises. The court should “weigh the need for truth against the
importance of the relationship or policy sought to be furthered by the privilege, and the
likelihood that recognition of the privilege will in fact protect that relationship in the factual
setting of the case.”
Memorial Hospital, 664 F.2d at 1061-1062.
The City cites three cases for the proposition that the privilege is recognized in this Circuit.
Those three cases are: Morgan v. Union Pacific R. Co., 182 F.R.D. 261 (N.D.Ill.1998); Robbins v.
Provena St. Joseph Medical Center, - F. Supp. 2d -, Case 03C1371, 2004 WL 502327, March 11,
2004 (N.D.Ill.); and Tice v. American Airlines Inc., 192 F.R.D. 270 (N.D.Ill.2000).
In Morgan v. Union Pacific R. Co., 182 F.R.D. 261 (N.D.Ill.1998), the defendant asserted
the self-critical analysis privilege in order to protect the railroad’s post-accident investigation reports
from disclosure. The Court noted “vast array of inconsistent decisions” on the question whether the
privilege exists in federal common law. Assuming for the sake of argument that the privilege did
exist, the Morgan Court went on to determine the proper scope of the privilege in the factual context
of the case, concluding that the privilege did not apply to protect the documents. Despite the City’s
reliance on this case, it does not stand for the proposition that the privilege exists; the Morgan Court
simply assumed its existence.
The other case cited by the City is Robbins v. Provena St. Joseph Medical Center, - F. Supp.
2d -, Case 03C1371, 2004 WL 502327, March 11, 2004 (N.D.Ill.), the privilege was asserted to
protect from disclosure employee complaints (known as “ADOs”) pertaining to under-staffing of
nurses at the hospital and other related matters, such as follow-up correspondence, investigations,
and conclusions. The case arose under federal labor laws. The Court did not discuss whether the
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privilege existed at federal common law. It simply applied what it believed to be the correct legal
standard, finding that the documents were self-generated for the purpose of critical analysis, that the
public had a strong interest in the flow of this information because it affected patient care, that
allowing use in litigation would adversely impact the use of these documents, and that the
documents were maintained on a strict, need-to-know basis. The Court may have been swayed by
the fact that these documents were also statutorily protected under Illinois’ Medical Studies Act,
another privilege asserted in the case. Once again, however, the Court simply presumed that the
privilege existed; it made no such finding.
The same is true of the third case, Tice v. American Airlines Inc., 192 F.R.D. 270
(N.D.Ill.2000), where the court began its discussion, “Assuming that the federal common law
recognizes the self-critical analysis privilege...”
Each of these cases, simply presumed the existence of the privilege without deciding that
issue. They do not stand for the proposition that the privilege exists.
In the most recent case within the Seventh Circuit, Ludwig v. Pilkington North America,
Inc., - F. Supp. 2d -, Case No. 03C1086, 2004 WL 1898238, 1, Aug. 13, 2004 (N.D.Ill.), the court
engaged in a thorough discussion of this privilege The court first characterized the cases within our
Circuit as being “somewhat hesitant to embrace the self-critical analysis privilege and have often
qualified their uses of the privilege with phrases like ‘assuming that the self-critical analysis
privilege exists’ or have noted that other courts have questioned the existence of such a privilege
altogether.” Id. at *1, citing cases, including the cases cited by the City. The Ludwig court
continued:
The general hesitation of the courts to fully embrace this privilege is quite understandable
since its application will lead to the exclusion of extremely relevant and persuasive evidence.
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In theory, this exclusion is justified by the advancement to the public's interest in having
companies investigate and ultimately cure problems with their products or processes. While
the courts' general hesitance has caused some frustration for supporters of this privilege, ...
it is, in my opinion, necessary to ensure that it is the public's interest, and not the asserting
party's interest, that is served when relevant evidence is withheld pursuant to this privilege.
2004 WL 1898238 at #3.
As was true not only in the three cases cited by the City but also in the majority of cases
(both in and out of the Seventh Circuit) discussing this privilege, the Ludwig court found it
unnecessary to decide whether the privilege is recognized in federal common law, because to the
extent it may exist, it did not apply to the documents in question.
There can be no doubt that this privilege exists; that was, after all, what the Seventh Circuit
said in Coates, 745 F.2d at 551. Moreover, given the numerous post-Coates courts that have afforded
some level of recognition to the privilege, I conclude that federal common law has come to
recognize the self-critical analysis privilege. It is therefore necessary to define the contours of that
privilege and determine whether it protects the documents in question in the case at bar.
The fundamental purpose of the privilege is to protect from disclosure documents that
contain “candid and potentially damaging self-criticism” Morgan, 182 F.R.D. at 264, where
disclosure of those documents would harm a significant public interest. Whether the privilege
applies in a particular fact situation depends in significant part on balancing the public interest
furthered by self-assessment against the litigant’s private interest in pursuing the search for truth.
The precise formulation of this balancing test has therefore taken on somewhat different guises,
depending on the public and private interests at issue in the particular case. See, Morgan, 182 F.R.D.
at 264 (citing cases).
For example, in the employment context, courts have extended the privilege to protect
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documents created by private employers legally mandated to critically evaluate their hiring and
personnel polices. This need to satisfy a legal mandate was the foundation of the Coates decision,
where an affirmative action plan mandated periodic internal reviews and revisions of hiring and
personnel assignments. Coates, 745 F.2d at 551. That court found that the substantial public interest
in affirmative action was advanced by protecting the governmentally-mandated internal reviews;
this was deemed to outweigh the private interest being pursued in the civil litigation.
The privilege has not, however, been limited to legally-mandated documents. In Morgan,
the Court differentiated the legal standard used in employment cases, where statutes required
employers to evaluate their practices, from the standard that made sense in tort cases. The public
interest in tort cases - promotion of public safety through voluntary and honest self analysis - did
not require a special governmental mandate. The Morgan Court concluded that the public’s
substantial interest in encouraging railroads (such as the defendant in that case) to engage in critical
self-evaluation to promote public safety meant that there was no requirement that the privilege only
protected documents that were governmentally mandated.
Coates, Morgan, and other cases emphasize that factual context is critical in determining the
proper legal standard. None of the cases discussed above involve police department documents, so
they are not particularly helpful in determining the proper standard to apply in this case. Defendant
has pointed to two cases that do involve police department documents. These two cases therefore
merit careful attention.
In the first case, Hobley v. Burge - F .Supp. 2d -, - F. Supp. 2d -, Case No. 03C3678, 2006
WL 1460028, May 24, 2006 (N.D.Ill.), the Audit and Control Division of the Chicago Police
Department had submitted an audit report to the Police Superintendent describing serious problems
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with processing and storage of evidence. In post-conviction proceedings, Hobley had subpoenaed
the City to obtain this report to support his argument that the prosecution had used a piece of
evidence from the evidence room that had not been recovered from the crime scene. In determining
whether the audit report should be designated “confidential” under a protective order, the court
considered whether it was protected by the self-critical analysis privilege. The court noted the lack
of any authority applying the privilege to government documents, explaining:
[The privilege] was initially developed to promote public safety by encouraging businesses
to evaluate their safety procedures voluntarily. It was subsequently extended to protect
business entities that are legally mandated to undertake critical evaluation of their hiring and
personnel policies. However, a governmental entity undertaking at taxpayer expense an audit
of its performance of its public duties is arguably very different.
Id. at *3 [citations omitted].
Despite the Hobley court’s hesitation to apply the privilege to government documents, the
court went on to define the applicable legal standard: (1) whether the information resulted from
critical self-analysis; (2) the public’s interest in preserving the free flow of the type of information
sought; (3) whether the information is of a type whose flow would be curtailed if discovery were
allowed; and (4) whether the document was prepared with the expectation that it would be kept
confidential and has in fact been kept confidential. Id. at *1.
The Hobley court found the first two elements satisfied but concluded that the City had failed
to show the third element, namely that the type of self-critical analysis at issue in an audit would be
curtailed if the report were made public. Quoting a New York case, the court stated, “The police
department needs to continue to monitor itself to ensure that department procedures are effective and
that officers are complying with these procedures. It is unlikely that production of the [report] would
halt this self analysis process.” Id., quoting Skibo v. City of New York, 109 F.R.D. 58, 64
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(E.D.N.Y.1985). The court also found that the report had not been kept entirely confidential and that
most of the report consisted of objective information, not subjective evaluation. The audit report,
in other words, was not protected by the privilege.
The second police document case is Gardner v. Johnson, - F. Supp. 2d -, 2008 WL 3823713,
Aug13, 2008 (N.D.Ill.2008). In that case, the plaintiff sought an investigation file created by the
department as a result of plaintiff’s complaints to the department about his arrest. The legal standard
applied by the court was the same standard as was used in Hobley. The court found that the
document had not been kept confidential so the privilege did not apply. Despite that finding, the
court directed redaction of any section containing the investigator’s “subjective critique of the
arresting officer’s conduct or police department policies.” See, Ludwig, 2004 WL 1898238 at *1-2.
The court provided no explanation for this latter redaction.
Applying this legal test to the case before this Court, I find the following. First, the
information contained in the investigation report resulted from critical self-analysis. Second, the
public has a strong interest in preserving the free flow of this type of information, because it is
clearly in the public’s interest to be certain that tax-supported police departments and police officers
are operating within constitutional, statutory and procedural guidelines. There has been no
suggestion by either party that this investigation report has been disclosed to any person or entity
outside the department.
The only real issue is the third prong: whether preparation of this type of investigation report
would be less likely if the City’s police department knew that it would be discoverable in civil
litigation. Defendant cites and quotes from any number of cases for the proposition that these
documents should be privileged, but those cases are all factually distinguishable from the case at bar.
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For example, in Kott v. Perini, 283 F. Supp. 1, 2 (N.D. Ohio 1968) the documents sought were
police officer notes regarding a particular criminal investigation, and the party seeking the notes was
the person arrested, charged and convicted. He sought the notes for use in his habeas corpus case.
There is no “critical self-analysis” involved in such notes. In O’Keefe v. Boeing Co., 38 F.R.D. 329,
335 (S.D.N.Y. 1965), the report at issue had been prepared by the Air Force as an evaluation of its
subcontractors. Because the Air Force has no subpoena power, it relied completely on voluntary
statements by employees of the subcontractors. Such a report would be impossible to produce if the
employees knew that their employer would or could see the finished report.
The other cases on which Defendant relies are similarly factually distinguishable. Medical
records and post-accident reports in the private sector are simply not comparable to reports
generated by police departments. The constitution and the laws impose on our police officers and
police departments certain standards which citizens are entitled to expect they will uphold. When
they are accused of falling short, as they are in the case before this court, the public has an extremely
strong interest in assuring that the accusations are properly addressed and investigated. Given the
political pressures that can be exerted on governmental entities, it is doubtful that making these
reports available would result in curtailment of the flow of information necessary for the preparation
of these reports.
The self-critical analysis privilege has been found not applicable to the records of internal
affairs investigations in civil rights suits against police officers, although the parties have cited and
the court has located no such case from a court within the Seventh Circuit. See, e.g., Soto v. City
of Concord, 162 F.R.D. 603, 620 (N.D. Cal. 1995); Kelly v. City of San Jose, 114 F.R.D. 653, 665
(N.D. Cal. 1987); King v. Conde, 121 F.R.D. 180 (E.D.N.Y.1988). These cases express the same
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conclusion that was discussed in the preceding paragraph, namely that public entities have an
obligation to perform these reviews, and making those reviews subject to public scrutiny ensures
that the investigations will be thorough.
In Soto, the Court declined to recognize the self-critical analysis privilege, opting to evaluate
the documents under the “official information privilege.” In that analysis, however, the court
rejected the police department’s assertion that disclosure of citizen complaints would discourage
citizens from filing such complaints, because there was no proof of special circumstances that would
credit the department’s “purported interest in preserving the anonymity of citizen complainants.”
Id. at 621. The court similarly rejected the assertion that the department’s internal investigatory
system would be harmed by disclosure of citizen complaints, finding that such a “general assertion”
was insufficient to support the clam of privilege.
In Kelly, the court noted the “profound” importance of the civil rights statutes and cautioned
that courts should not use “empirically unsupported and debatable assumptions” to shift the burden
from the police department asserting the privilege to the civil rights plaintiff. The court carefully
examined and rejected the broad contention that the possibility of disclosure might make the officers
who participate less honest or candid.. 114 F.R.D. at 665. Quoting an earlier case, the court stated:
No legitimate purpose is served by conducting the investigations under a veil of near total
secrecy. Rather, knowledge that a limited number of persons, as well as a state or federal
court may examine the file in the event of civil litigation may serve to insure that these
investigations are carried out in an evenhanded fashion, that the statements are carefully and
accurately taken, and that the true facts come to light, whether they reflect favorably on the
individual police officers involved or on the department as a whole.
Id. at 665, quoting Mercy v. Suffolk County, 93 F.R.D. 520, 522 (E.D.N.Y.1982).
In King, the court described the threshold showing a police department must make to justify
non-disclosure on the basis of the official information privilege.
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Unless the government, through competent declarations, shows the court what interests [of
law enforcement or privacy] would be harmed, how disclosure under a protective order
would cause the harm, and how much harm there would be, the court cannot conduct a
meaningful balancing analysis.”
Id. at 189, quoting Kelly, 114 F.R.D. at 669 [emphasis in original]. See also, Wiggins v. Burge, 173
F.R.D. 226 (N.D.Ill.1997)(quoting King and Mercy, supra, with approval).
While the cases discussing the “official information”privilege are not directly apposite to the
“self critical analysis” privilege at issue in this case, those cases do reveal some of the same
concerns that would arise should either privilege be applied to police department documents. Here,
the City has asserted the privilege without the support of any empirical evidence. The articulate
discussion in Kelly and Mercy, supra, convinces me that the public interest asserted by the
Defendants does not in this case outweigh the Plaintiff’s search for the truth in this civil rights case.
Similarly, in Wiggins v. Burge,173 F.R.D. 226, 230, 173 F.R.D. 226 (N.D.Ill.,1997), a police
misconduct case, the court was considering whether certain documents should be protected by a
protective order. That evaluation included the need to balance the interests involved: the harm to the
party seeking the protective order and the importance of disclosure to the public. This balancing,
very similar to the balancing required in the self-critical analysis privilege, involved the public
interest in “the health and welfare of the general public and the integrity of the police department,”
which the court concluded “far outweighs any harm to the police officers. Id..
Privileges are narrowly construed, and the party asserting the privilege must meet its burden
of showing entitlement to protections. Defendants have failed to meet its burden of establishing the
third prong of the legal standard. That finding makes it unnecessary to address in any detail
Plaintiff’s wholly-unsupported suggestion that Defendants waived this privilege by failing to invoke
it consistently. Specifically, Plaintiff points out that seven other investigation files have been
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produced without any assertion of privilege. Defendants respond that these 7 files were “old records
containing nothing of consequence.” More importantly, however, Defendant points out that assertion
of privilege is on a document-by-document basis and that production of one document does not,
standing alone, constitute waiver. I conclude that production of these files did not constitute waiver
as to the particular investigation file at issue, especially in light of Plaintiff’s cursory presentation
of this issue.
For the reasons explained herein, I find that the documents in question are not protected by
the critical self-analysis privilege. To that extent the motion to compel is GRANTED.
EXECUTIVE PRIVILEGE
Defendants also asserted “executive privilege” as to the investigative report. The executive
privilege1 “protects communications that are part of the decision-making process of a governmental
agency.” United States v. Farley, 11 F.3d 1385, 1389 (7th Cir.1993) (citing NLRB v. Sears, Roebuck
& Co., 421 U.S. 132, 150-52 (1975)). The privilege protects from disclosure2 “documents reflecting
advisory opinions, recommendations and deliberations comprising part of the process by which
governmental decisions and policies are formulated.” Dept. of Interior v. Klamath Water Users
Protective Assoc., 532 U.S. 1, 9 (2001). See also, U.S. v. Zingsheim, 384 F.3d 867, 872 (7th Cir.
2004)(the privilege “shields recommendations to high-ranking officials.”) (citing Cheney v. District
1
The “executive privilege” is sometimes referred to as the “official information privilege”
or the “deliberative process privilege.” See, e.g., K.L. v. Edgar, 964 F.Supp. 1206, 1208
(N.D.Ill.1997); Landry v. Fed'l Dep. Ins. Corp., 204 F.3d 1125 (D.C. Cir.2000).
2
The Illinois Supreme Court has refused to recognize this privilege. Evans v. City of
Chicago, 231 F.R.D. 302, 316 (N.D.Ill.2005), citing People ex rel. Birkett v. City of Chicago,
184 Ill.2d 521, 235 Ill.Dec. 435, 705 N.E.2d 48 (1998). As explained above, federal common
law (not state law) ordinarily governs questions of privilege in a federal question case.
Interestingly, though, if this dispute were proceeding in Illinois’ courts, the executive privilege
would not protect these documents from disclosure.
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Court, 542 U.S. 367 (2004); and U.S. v. Nixon, 418 U.S. 683 (1974); Enviro Tech Intern., Inc. v.
U.S.E.P.A., 371 F.3d 370, 374 (7th Cir. 2004)(documents reflecting deliberative or policy-making
processes of governmental agencies are privileged).
In none of the above cited cases was the governmental entity asserting the privilege a local
government; all were either federal agencies or state-created agencies or entities. There are a few
cases involving local government. For example, in Griffin v. City of Milwaukee, 74 F.3d 824 (7th
Cir. 1996), the trial court had denied a motion to compel a police investigation file, finding the file
irrelevant to the pending summary judgment motion and also finding it protected under the executive
privilege. The Court of Appeals affirmed those findings without any discussion of the privilege or
citation to case law, simply stating that finding the document privileged and not relevant were “valid
reasons” for denying the motion to compel. Id. at 829. While this case certainly suggests that there
is no blanket rule against applying executive privilege to protect investigative files from discovery,
the lack of discussion provides no guidance as to when that protection is appropriate. Moreover,
Griffin was a case that arose in the employment context, a factual distinction that has proved
important in the evaluation of privilege. Griffin cannot simply be applied as a general rule.
Defendants also cite Elliott v. Webb, 98 F.R.D. 293, 296 (D.Idaho 1983), a case involving
a city police department. The plaintiff sought the contents of the officers’ personnel files The Court
defined the executive privilege as preventing disclosure of information the disclosure of which
would be contrary to public interest. The court concluded that in the context of discovery of police
investigation filed in civil rights action, “only strong public policy should be permitted to prevent
disclosure since enforcement of 42 U.S.C. 1983 is placed solely in the hands of individual citizens
acting in the capacity of private attorneys-general.” Id. at 296.
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The Elliott Court made no effort to examine whether the officers’ personnel files reflected
advisory opinions, recommendations and deliberations comprising part of the process by which
governmental decisions and policies were formulated. The Court’s broad definition of the privilege
made that examination unnecessary. The Court’s broad definition, however, is inconsistent with
binding precedent cited above, and I find the opinion to be of no assistance in the case at bar.
Applying the definition that is binding in this Court, I find that the type of investigation
report that was prepared in this case does not fall within the parameters of the privilege. For this
privilege to apply, the document must be“deliberative.” Becker v. IRS, 34 F.3d 398, 403 (7th
Cir.1994). See, Evans, 231 F.R.D. at 315 -316. This investigation was ordered because of a specific
incident that had provoked negative publicity and that was likely to lead to criminal and/or civil
litigation against the officers involved. Unlike broad-ranging investigations designed to develop
municipal-wide policy or to provide legislative guidance, this investigation was limited to this
single incident. There was no “deliberative process” involved. Other than Griffin and Elliott, two
unhelpful cases in this factual scenario, this type of investigative report has never been found
protected by the executive privilege.
The conclusion that the report is not privileged is demonstrated by considering the careful
evaluation in Evans, supra. That case involved a former inmate who had been pardoned by the
governor. He sued police officers, alleging a conspiracy to frame him for a murder he did not
commit. He sought discovery from the Illinois Prisoner Review Board, asking for the information
the Board had provided to the governor. The Board asserted the executive privilege.
The Court enunciated a two-step analysis for determining whether the privilege should be
applied to prevent discovery of otherwise relevant information. First, the court must decide whether
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the government has shown that the privilege applies to the documents the government seeks to
protect. This requires the government to show that (1) the claim of privilege was formally asserted
by the agency head, one of its high officers, or its counsel, (2) there are “precise and certain reasons”
for preserving the confidentiality of the documents, and (3) the documents are specifically identified
and described. Id. citing U.S. v. Reynolds, 345 U.S. 1 (1953) and Landry v. FDIC, 204 F.3d 1125,
1235 (D.C. Cir. 2000)(citing cases); and Ferrell v. U.S. Dept. of Housing and Urban Development,
177 F.R.D. 425, 428 (N.D.Ill.1998). Then, if the government meets that threshold burden, the
litigant has the burden of showing that it has a particularized need for the documents. Evans, 231
F.R.D. at 316.
In the case now before this Court, Defendants prepared privilege log asserts the executive
privilege, and it lists with specificity the documents being withheld. The log is entirely lacking in
“precise and certain reasons” that the privilege should apply to each document, and the arguments
made by Defendants similarly lack the requisite precision. It is therefore impossible to conclude that
Defendants have met their initial burden of properly asserting this privilege.
Either because the privilege does not, by definition, apply to the type of investigative report
at issue here, or because the Defendants have failed to meet their burden of showing that there are
precise reasons that the withheld documents should be privileged, I conclude that the executive
privilege does not apply to protect these documents from production. To that extent, the motion to
compel is GRANTED.
RELEVANCE
Defendants also assert that certain parts of the investigative report are not relevant. The
Federal Rules of Evidence define “relevant evidence” as being “evidence having any tendency to
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make the existence of any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence.” Fed.R.Evid. 401. The Federal
Rules of Civil Procedure allow discovery of “any nonprivileged matter that is relevant to any party’s
claim or defense.” Fed.R.Civ.P. 26(b)(1).
Neither the motion to compel nor the response identifies with specificity any document that
is or is not relevant, much less makes specific arguments as to those particular documents.
Defendants assert that the “Professional Standards Files” regarding other investigations involving
these officers are not relevant, while the Plaintiff asserts that communications between the City and
the individual Defendants regarding the investigation are relevant. Each side dedicates one
paragraph only to its relevance argument.
The relevance issue is completely undeveloped and is therefore not considered by the Court.
Given the very broad definition of “relevance,” and the rulings as to privilege contained in this
order, the parties are directed to re-evaluate their positions on this question and make every good
faith effort to resolve, on a document-by-document basis, any remaining issues of relevance.
CONCLUSION
The motion to compel is granted as stated herein. I find, however, that the internal
investigation report should be subject to a protective order that strictly limits the use to which these
documents may be put and the persons to whom these documents may be shown, at least during
discovery. The parties are directed to draft a protective order specific to this report that contains
appropriate limitations on the use and disclosure of this information, keeping in mind Local Rules
and case law relating to privacy and sealed documents. A proposed protective order shall be filed
for approval within 14 days of this date. Once the protective order has been entered, Defendants
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shall have 14 days within which to serve the documents discussed herein.
ENTERED ON October 26, 2011
s/ John A. Gorman
JOHN A. GORMAN
UNITED STATES MAGISTRATE JUDGE
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