Lewis et al v. Phillips et al

Filing 149

OPINION: (1) Defendants' motion for an in camera inspection is granted 141 . Based on an in camera review, the Court concludes that the following documents are protected from disclosure: Bates numbers 11, 12, 16, 19 (first three paragraphs of email), 22, 23, 24, 26, 28-45, 47, 49-50, 52, 53, 54-55, 57, 59-61, 68, 71, 74, 76, 83-84, 88-89, and 92-93. The rest of the documents are not protected and shall be produced to Plaintiffs by November 30, 2012. (2) Plaintiffs' motion to conduc t discovery is construed as a motion to supplement their Complaint with a claim challenging the movie and game policy implemented on October 4, 2012. The motion is granted 145 . (3) Discovery is closed regarding all claims except for Plaintiff� 39;s claim challenging the movie and game policy implemented on October 4, 2012. Discovery on the October 2012 policy is open and shall close on February 28, 2013. (4) Dispositive motions are due March 29, 2013.(5) Plaintiffs' motion for summary judgment is denied 113 , with leave to renew after discovery closes and by the dispositive motion deadline of March 29, 2013. Entered by Judge Sue E. Myerscough on 11/13/12. (ME, ilcd)

E-FILED

Tuesday, 13 November, 2012 10:29:29 AM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
MICHAEL LEWIS, et al.,

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Plaintiffs,
v.
LARRY J. PHILLIPS, et al.,
Defendants.

10-CV-3163

OPINION
SUE E. MYERSCOUGH, U.S. District Judge:
Plaintiffs are detained in the Rushville Treatment and Detention
Center pursuant to the Illinois Sexually Violent Persons Act. This case
began as a challenge to a blanket ban on R-rated movies and M-rated
video games. The blanket ban was then replaced with a list of banned
movies and games, which Plaintiffs also challenge. Plaintiffs also pursue
a claim that in March 2011 the facility implemented a ban on all video
gaming systems in retaliation for this lawsuit and other similar lawsuits.
Plaintiffs now seek to add a claim challenging the latest changes to the

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rules on movies and video games which were put in place on October 4,
2012. For the reasons below, Plaintiffs will be permitted to add that
claim.
Plaintiffs move to compel documents which Defendants have
refused to produce on grounds of attorney-client privilege, work product
doctrine, deliberative process privilege, and security concerns. The Court
granted Plaintiffs’ motion to compel to the extent Plaintiffs sought an in
camera review of the documents. Now before the Court is Defendants’
motion for an in camera review of the documents.
Under Federal Rule of Civil Procedure 26(b)(1), "[p]arties may
obtain discovery regarding any nonprivileged matter that is relevant to
any party's claim or defense.”
Defendants’ list of privileged documents is confusing, particularly
with regard to the emails, because the list does not refer to the Bates
numbers of the in camera documents. Discerning which emails
constitute numbers 1-20 in the “attorney-client privilege” section of
Defendants’ privilege log versus numbers 22-48 in the “deliberative

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process privilege” section is difficult. Many of the emails are duplicative
and marked inconsistently. The Court has done its best to review each
document to determine whether the document is protected from
disclosure for any of the reasons asserted by Defendants.
I.

The deliberative process privilege applies to most of the
documents, but Plaintiffs’ need for the documents is sufficient to
overcome the privilege.
“The deliberative process privilege protects communications that

are part of the decision-making process of a governmental agency.” U.S.
v. Farley, 11 F.3d 1385, 1389 (7th Cir. 1993). This privilege encourages
the candor essential to effective and efficient government decisionmaking. Id. The privilege applies to documents which are
“predecisional” and part of the deliberative process. Enviro Tech Intern.,
Inc. v. U.S. E.P.A., 371 F.3d 370, 375 (7th Cir. 2004)(2004)(EPA’s
internal documents discussing proposed rule were protected by the
deliberative process privilege). The privilege “may be overcome where
there is a sufficient showing of a particularized need to outweigh the
reasons for confidentiality.” Id. However, “[r]elevance alone” is not

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enough to overcome the privilege. Farley, 11 F.3d at 1390 (documents
regarding the FTC’s deliberations on whether to sue were protected by
the deliberative process privilege). Illinois does not recognize this
privilege. However, federal common law applies since Plaintiff’s claims
are based on federal law. Birkett v. City of Chicago, 184 Ill.2d 521
(1998)(no deliberative process privilege under Illinois law); Fed. R. Evid.
501 (federal common law governs privilege claim unless case is a civil
case based on state law).
The emails, minute meetings, and memo drafts regard factgathering and deliberations about whether and to what extent video
gaming systems should be allowed at the facility; the therapeutic and
security concerns presented by video gaming systems; the exploration of
alternatives to a total ban; legal aspects of limiting gaming systems; and
explanation of the gaming policy to residents. This deliberative process
culminated in a memo to residents issued in March 31, 2011
implementing a ban on gaming systems and other electronics.
These documents are clearly part of the deliberative process.

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However, Plaintiffs claim that the March 2011 memo was issued in
retaliation for this lawsuit and others like it. In order to prove their
retaliation claim, Plaintiffs must have evidence that the March 2011
policy was motivated, at least in part, by retaliation. Deliberations
leading up to that policy could be relevant to show Defendants’ motive
and intent. (In the Court’s opinion, the documents actually show the
lack of any retaliatory motive, but that is not relevant to determining
whether the documents are protected from disclosure).
District court cases have recognized an exception to the
deliberative process privilege where intent is central to proving a claim.
See, e.g., U.S. v. Lake County Board of Commissions, 233 F.R.D. 523,
527 (N.D. Ind. 2005)(“dominant view is that . . . the deliberative
process privilege does not apply when the government’s intent is at
issue”); Scott v. Board of Educ. of East Orange, 219 F.R.D. 333 (D.N.J.
2004)(in a federal retaliation claim based on termination, plaintiff could
depose board members about discussions regarding plaintiff’s
termination because information was necessary to challenge board’s

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stated reasons for termination); Dunnet Bay Construction Co. v.
Hannig, 2012 WL 1599893 * 3 (7th Cir. 2012)(C.D. Ill., Magistrate
Judge Cudmore)(not published in F.Supp.2d); Doe v. Freeburg School
Dist., 2011 WL 2013945 *3 (S.D. Ill., Magistrate Judge Wilkerson)(not
published in F.Supp.2d); see also Enviro Tech Intern. v. U.S. E.P.A., 371
F.3d 370, 376 (7th Cir. 2004)(assuming that “nefarious” internal agency
discussions are not entitled to deliberative process privilege).
In addition to the Defendants’ intent being central to Plaintiffs’
retaliation claim, some of the information in the in camera documents
has already been disclosed by Defendants. For example, the March 2011
memo already discloses much of the same information included in the
prior drafts of the memo. Also, some of the information regards
objective facts, such as how other states handle the issue. See S.E.C. v.
Sentinel Management Group, Inc., 2010 WL 4977220 *3 (N.D. Ill.,
Magistrate Judge Finnegan)(not published in F.Supp.2d)(deliberative
process privilege does not apply to objective facts).
For the above reasons, the Court concludes that the deliberative

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process privilege does not protect the in camera documents from
disclosure.
II. The attorney-client privilege protects many of the documents.
The attorney-client privilege protects communications made in
confidence for the purpose of obtaining legal advice. Sandra T.E. v.
South Berwyn School Dist. 100, 600 F.3d 612, 618 (7th Cir. 2010).
The privilege applies when legal advice is sought from an attorney in a
confidential communication for that purpose. "[T]he attorney-client
privilege protects not only the attorney-client relationship in imminent
or ongoing litigation but also the broader attorney-client relationship
outside the litigation context." Id., 600 F.3d at 620.
The Court has reviewed all of the in camera documents and
concludes that the following are protected by the attorney-client privilege
as confidential attorney-client communications regarding the creation
and defense of the gaming policy from a legal perspective: Bates numbers
28-44, 49-50, 54-55, 59-61, 68, 71, 74, 76, 83-84.

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III. The documents are not protected by the work product doctrine.
The work product doctrine is distinct from the attorney-client
privilege. The work product doctrine protects from disclosure
"documents and tangible things that are prepared in anticipation of
litigation or for trial by or for another party or its representative . . . ."
Fed. R. Civ. P. 26(b)(3)(A). “[W]e look to whether in light of the
factual context ‘the document can fairly be said to have been prepared or
obtained because of the prospect of litigation.’” Logan v. Commercial
Union Insurance Co., 96 F.3d 971, 976-77 (7th Cir. 1996)(quoted cite
omitted). However, “[t]he mere fact that litigation does eventually
ensue does not, by itself, cloak materials . . . with the work product
privilege.” Binks Mfg. Co. 709 F.2d at 1118 (7th Cir. 1983).
The in camera documents all relate to the discussion of what the
gaming system policy should be and how that policy should be explained
to the residents. Defendants do not explain how these documents were
prepared in anticipation of litigation. Legal aspects were necessarily
discussed in the documents, and Defendants reasonably expected a legal

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challenge to the policy, but that does not mean that the documents were
prepared in anticipation of litigation. Binks Mfg. Co. 709 F.2d at 1118
(7th Cir. 1983). The documents were prepared in order to determine
the facility’s policy on gaming systems. A policy would have been
required regardless of the prospect of litigation. Therefore, the
documents are not protected by the work product doctrine.
IV.

Disclosure of several of the documents would present security
risks.
Defendants list two documents which they have withheld on

security grounds, both described as investigative reports. However, the
Court sees only multiple copies of one document in the record. This
document is a report detailing investigations into actual and potential
security threats presented by gaming systems. (Bates numbers 22, 88,
92.)
Disclosing this document would clearly present security concerns.
As Defendants assert, disclosing this information might provide residents
with a “blue print” for breaching the facility’s security. Thus, the Court
will not compel the production of the report.
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The information in the report is repeated verbatim in several
emails. These emails must also necessarily be protected from disclosure
on security grounds. Additionally, the Court has concluded that
additional emails could present security concerns because those emails
also detail the security risks of electronic devices.
The Court finds that the security concerns protect the following
documents from disclosure: Bates numbers 11, 12, 16, 19 (first three
paragraphs of email), 22, 23, 24, 26, 45, 47, 52, 53, 57, 88-89, 92-93.
Defendants also argue that disclosing the documents may “hamper
the therapeutic environment” and allow residents to target staff based on
the staff’s positions in the emails. However, the Court has reviewed the
documents it is not protecting from disclosure, and none of those
documents appears to present this risk.
III.

Plaintiffs’ motion for summary judgment will be denied, with
leave to renew.
Plaintiffs’ motion for summary judgment attempts to substantially

broaden the claims that are proceeding in this case. For example,
Plaintiffs assert that they challenge the denial of all types of media,
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“whether it be a DVD, CD-ROM, books, magazine, or any other type of
media . . . .” (Plaintiffs’ motion for summary judgment, d/e 113, p. 1.)
Plaintiffs also challenge rogue actions by some guards who have allegedly
not allowed approved media. Id., proposed undisputed fact 29.
Additionally, Plaintiffs challenge the institution of a 2004 policy to treat
residents as a “common enemy.” Id., proposed undisputed facts 140145. Also, many of Plaintiffs’ proposed facts in their summary judgment
motion are arguments which belong in Plaintiffs’ argument section.
And, Plaintiffs have recently moved for discovery on what they describe
as an even more restrictive policy on movies and games implemented on
October 4, 2012. This new policy is not addressed in Plaintiffs’ current
motion for summary judgment.
For these reasons, Plaintiffs’ motion for summary judgment will be
denied with leave to renew after discovery has closed. Plaintiffs should
limit their facts and arguments in their renewed summary judgment
motion solely to the claims in this case.

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IV.

Plaintiffs’ motion to conduct additional discovery is construed as
a motion to supplement their claims under Federal Rule of Civil
Procedure 15(d). The motion will be granted over Defendants’
objections.
Plaintiffs assert that on October 4, 2012, the policy regarding

movies and video games was revised again. More titles were allegedly
added to the banned list, and, according to the attachment to the
motion, movies rented from Netflix, Blockbuster, or other commercial
entities are now limited to those rated PG-13 or below. Additionally,
movies from pay movie channels are prohibited. Plaintiffs do not know
who is personally responsible for implementing this latest policy.
Plaintiffs seek to conduct discovery on this new policy.
Defendants object, arguing that adding this claim will unduly delay the
progression of this case and prejudice them. Defendants assert that the
new policy is not related to the original policy that was the subject of
this lawsuit filed more than two years ago, nor is the new policy related
to the banned list that replaced that original policy.
What Plaintiffs actually seek, in addition to discovery, is to
supplement their Complaint to challenge this new policy. Fed. R. Civ. P.
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15(d) states that, “[o]n motion and reasonable notice, the court may, on
just terms, permit a party to serve a supplemental pleading setting out
any transaction, occurrence, or event that happened after the date of the
pleading to be supplemented.” Relevant factors in deciding whether the
motion should be allowed include whether “the new claim is being added
in a desperate effort to protract the litigation and complicate the defense;
its probable merit; whether the claim could have been added earlier; and
the burden on the defendant of having to meet it.” Glatt v. Chicago
Park Dist., 87 F.3d 190, 194 (7th Cir. 1996).
Discovery is currently set to close 30 days after the Court rules on
whether the in camera documents should be produced, with dispositive
motions due 30 days thereafter. Defendants are correct that these
deadlines regard the claims that are proceeding, not the new claim
Plaintiffs seek to add. The extension of discovery to 30 days after a
ruling on the in camera documents was intended to address whatever
remnants of discovery might remain in relation to the in camera
documents.

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However, this case concerns restrictions on Plaintiffs’ access to
video games and movies, which is the same issue addressed by the new
policy. The Court does not intend to allow a supplemental claim each
time the policy changes, but here discovery has not yet officially closed.
Defendants have not filed a motion for summary judgment, nor have
Defendants been required to file a response to Plaintiffs’ pending motion
for summary judgment. Further, no evidence of dilatory tactics is
present on Plaintiffs’ part. Plaintiffs filed their motion just one week
after the new policy was implemented.
Plaintiffs could file a separate case to challenge the new policy, but
that would be an inefficient approach to addressing this issue. The same
justifications are likely to be as relevant to the new policy as to the prior
policies. Plaintiffs may discover that the named Defendants in this case
were not personally responsible for the new policy, but in that event the
current Defendants could move to sever the new claim if they are
concerned about undue delay. Moreover, additional discovery will be
allowed only regarding the new policy, which will limit the burden on

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Defendants. For all these reasons, Plaintiff’s motion will be allowed.
IT IS THEREFORE ORDERED:
1.

Defendants’ motion for an in camera inspection is granted (141).
Based on an in camera review, the Court concludes that the
following documents are protected from disclosure: Bates numbers
11, 12, 16, 19 (first three paragraphs of email), 22, 23, 24, 26, 2845, 47, 49-50, 52, 53, 54-55, 57, 59-61, 68, 71, 74, 76, 83-84, 8889, and 92-93. The rest of the documents are not protected and
shall be produced to Plaintiffs by November 30, 2012.

2.

Plaintiffs’ motion to conduct discovery is construed as a motion to
supplement their Complaint with a claim challenging the movie
and game policy implemented on October 4, 2012. The motion is
granted (d/e 145).

3.

Discovery is closed regarding all claims except for Plaintiff’s claim
challenging the movie and game policy implemented on October 4,
2012. Discovery on the October 2012 policy is open and shall
close on February 28, 2013.

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4.

Dispositive motions are due March 29, 2013.

5.

Plaintiffs’ motion for summary judgment is denied (d/e 113), with
leave to renew after discovery closes and by the dispositive motion
deadline of March 29, 2013.

ENTERED: November 13, 2012
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE

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