Johnson v. City Of Chicago et al

Filing 72

MEMORANDUM Opinion and Order Signed by the Honorable Joan B. Gottschall on 6/20/2011: Mailed notice (jmp, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
O’NEAL JOHNSON,
Plaintiff,
v.
OFFICER KEMPS, A.D. (Badge # 16145),
OFFICER CAHILL, B.J. (Badge # 19478),
OFFICER KERR, L.W. (Badge # 4871),
OFFICER ALONSO, J. (Badge # 18523),
And UNKNOWN POLICE OFFICERS,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)
)

Case No. 09 CV 4857
Honorable Joan B. Gottschall

MEMORANDUM OPINION AND ORDER
O’Neal Johnson brought this suit against several Chicago police officers complaining of
false arrest, malicious prosecution, unlawful search, conspiracy, and intentional infliction of
emotional distress. Before the court is the defendants’ motion for entry of a protective order.
Johnson has raised three objections to the defendants’ proposed protective order. First, Johnson
argues that Complaint Register files (“CR files”) regarding cases in which discipline was
imposed should not be subject to a provision that: (a) prevents their public disclosure for at least
30 days while the producing party reviews them to ensure that they have been properly redacted
and are suitable for release, and (b) requires any disputes to be resolved via an in camera review
by the court before the CR files can be released. Second, Johnson argues that he should be
allowed to retain a copy of all documents filed with the court, including documents filed under
seal. Third, Johnson argues that the producing party should bear the burden of filing a motion to
maintain its confidentiality designation when the parties cannot agree whether a certain
document is confidential.

I.

LEGAL STANDARD

“Absent a protective order, parties to a law suit may disseminate materials obtained
during discovery as they see fit.” Jepson, Inc. v. Makita Elec. Works, Ltd., 30 F.3d 854, 858 (7th
Cir. 1994) (citing Okla. Hosp. Ass’n v. Okla. Pub. Co., 748 F.2d 1421, 1424 (10th Cir. 1984));
but cf. Bond v. Utreras, 585 F.3d 1061, 1073 (7th Cir. 2009) (“Generally speaking, the public
has no constitutional, statutory (rule-based), or common-law right of access to unfiled
discovery.”). “Given the ‘extensive intrusion into the affairs of both litigants and third parties’
that is both permissible and common in modern discovery, the rules provide for the use of
protective orders, entered ‘for good cause,’ to protect litigants and third parties from the
‘annoyance, embarrassment, oppression, or undue burden or expense’ that may attend the
discovery process.” Bond, 585 F.3d at 1067 (citing Fed. R. Civ. P. 26(c)(1) and Seattle Times
Co. v. Rhinehart, 467 U.S. 20, 30 (1984)). “To determine whether a party has shown good
cause, the district court must balance the parties’ interests, taking into account the importance of
disclosure to the nonmovant and the potential harm to the party seeking the protective order.”
Calhoun v. City of Chi., No. 10 C 0658, --- F.R.D. ----, 2011 WL 1364028, at *1 (N.D. Ill. Apr.
8, 2011) (citing Wiggins v. Burge, 173 F.R.D. 226, 229 (N.D. Ill. 1997)).
II.
I.

ANALYSIS

Whether CR files regarding cases in which discipline was imposed should be subject to a
provision that: (a) prevents their public disclosure for at least 30 days while the
producing party reviews them to ensure that they have been properly redacted and are
suitable for release, and (b) requires any disputes to be resolved via an in camera review
by the court before the CR files can be released.
The parties each rely in part on the Illinois Freedom of Information Act (“IFOIA”) in

disputing whether the defendants have good cause for imposing restrictions on Johnson’s use of

2

CR files regarding cases in which discipline was imposed. IFOIA sets forth Illinois’ policy that
the public should have access to information regarding the acts of public officials and
employees. 5 ILL. COMP. STAT. 140/1 (2011) (effective January 1, 2010). However, Section
7(1)(n) of IFOIA exempts from public disclosure “[r]ecords relating to a public body’s
adjudication of employee grievances or disciplinary cases,” but notes that “this exemption shall
not extend to the final outcome of cases in which discipline is imposed.” 5 ILL. COMP. STAT.
140/7(1)(n) (2011) (effective March 1, 2010). Johnson contends that: (1) per Section 7(1)(n) of
the IFOIA, CR files regarding cases in which discipline has been imposed are public records, and
(2) the 30-day delay and the possibility that the producing party may ultimately withhold the CR
files as unsuitable for disclosure, leading the opposing party to request that the court perform an
in camera review, burdens him and the court. Johnson points out that he may want to use these
CR files as evidence for a summary judgment motion; these restrictions on his access to these
CR files are inconvenient and may require extra work for him and the court.
For their part, the defendants argue that under IFOIA, only the final outcome of a case in
which discipline was imposed is a public record; the rest of the CR file is exempted from public
disclosure. The defendants also point out that releasing the CR files to the public could subject
the defendants and third parties to harm since the files might include information about
confidential ongoing law enforcement investigations, pending criminal investigations, the
identity of witnesses, the identity of individuals complaining about police officers (some of
whom might be minors), and documents protected by law enforcement or deliberative process
privileges.
As an initial matter, “IFOIA does not control this court’s determination of whether ‘good
cause’ has been shown to protect the CR[ files].” Calhoun, 2011 WL 1364028, at *2 (citing

3

Rangel v. City of Chi., No. 10 C 2750, 2010 WL 3699991, at *2 (N.D. Ill. Sept. 13, 2010)).
However, to the extent that IFOIA suggests that the defendants have a privacy interest in the CR
files under Illinois law, IFOIA is helpful in determining whether the defendants have shown
good cause for this provision of the protective order. The court notes that the parties agree that
the protective order should define CR files as “records relating to a public body’s adjudication of
employee grievances or disciplinary cases.” (Defs.’ Mot. for Entry of Protective Order Ex. A at
2; Pl.’s Resp. Ex. 1 at 2.) However, whether CR files necessarily relate to an adjudication,
making IFOIA’s Section 7(1)(n) applicable, is an unsettled question. See Calhoun, 2011 WL
1364028, at *2 (noting that courts in this district have differed on the question). For purposes of
resolving this motion, the court will assume without deciding that the CR files relate to an
adjudication.
Turning to the parties’ quarrel over the breadth of IFOIA’s Section 7(1)(n) exception, the
defendants correctly point out that Section 7(1)(n) of IFOIA clearly states that the provision
exempting from public disclosure records relating to a public body’s adjudication of employee
grievances or disciplinary cases “shall not extend to the final outcome of cases in which
discipline is imposed.”

5 ILL. COMP. STAT. 140/7(1)(n) (2011) (effective March 1, 2010)

(emphasis added). Johnson would have this court rewrite IFOIA so that it states something to
the effect of “this exemption [from public disclosure] shall not extend to records relating to a
public body’s adjudication of employee grievances or disciplinary cases where discipline has
been imposed.” However, this court is not at liberty to rewrite state legislation. It is clear that
only the final outcome of a disciplinary case or employee grievance, and not all records relating
to a case in which there is a final outcome, is excepted from the exemption from public
disclosure set forth by IFOIA’s Section 7(1)(n).

4

Given the foregoing and the harms that could result from public disclosure of CR files,
the court finds that the defendants have good cause for the provision restricting Johnson’s use of
the CR files. However, as the court has noted before, a 30-day period in which the producing
party can review the CR files to make sure that they have been properly redacted and are suitable
for disclosure is too long and would unduly prejudice Johnson, who may want to, for example,
submit the CR files as evidence in support of a motion. See Calhoun, 2011 WL 1364028, at *1
(“The provision seems reasonable to the court, although 30 days seems like more time than is
required for defendants to review the records. The court will overrule Calhoun’s objection to
this provision, but defendants should modify the order to provide 7 days for reviewing any
proposed public release of CRs.”). Accordingly, the parties shall revise this provision of the
protective order to provide for a 7-day period of review. Except as to the time for review,
Johnson’s objection to this provision of the protective order is overruled.
Lastly, “[i]f a need should arise to share the CR[ files] with specific individuals for the
purpose of this litigation, the court would certainly consider making exceptions to the protective
order.” Calhoun, 2011 WL 1364028, at *3. In addition, “the court would obviously have to
reassess the balance of interests should [the] defendants seek to protect the CR[ files] during a
trial, when the proceedings would be presumptively public.” Id.
II.

Whether Johnson should be allowed to retain a copy of all documents filed with the court,
including documents filed under seal.
First of all, the defendants concede, as they must, that Johnson may retain a copy of court

filings that were not filed under seal. See Bond, 585 F.3d at 1073 (“It is beyond dispute that
most documents filed in court are presumptively open to the public.” (citing Jessup v. Luther,
227 F.3d 993, 997 (7th Cir. 2000), Citizens First Nat’l Bank v. Cincinnati Ins. Co., 178 F.3d 943,
945-46 (7th Cir. 1999), and In re Associated Press, 162 F.3d 503, 507 (7th Cir. 1998))). The

5

issue before the court is whether Johnson may retain a copy of documents that were filed under
seal. The defendants argue that documents filed under seal are not part of the public record. In
support of this argument, the defendants point to Local Rule 26.2(g), which requires the court to
return documents that were filed under seal to the party that filed it 63 days after the case has
ended unless the court has ordered otherwise. The defendants also argue that any documents that
would be filed under seal in this case would “meet the definition of trade secrets or other
categories of bona fide long-term confidentiality” that are exempted from public disclosure even
if they “influence or underpin [a] judicial decision,” Baxter Int’l, Inc. v. Abbott Labs., 297 F.3d
544, 545 (7th Cir. 2002), since the police officers involved may be injured by the release of their
personal information.1
However, Johnson is not asking that documents filed under seal be made available for
release to the general public; all Johnson is asking is that he be allowed to keep a copy of
documents filed under seal. On the other hand, Johnson has not set forth exactly why he would
need to keep a copy of documents filed under seal even after the final disposition of the case
(including appeals) while the defendants have set forth good cause – guarding against the risk
that officers’ personal information is publicly disclosed – for requiring documents subject to the
protective order to be returned at the conclusion of this case. As a result, Johnson’s objection is
overruled. If Johnson would to retain a copy of sealed documents even after the litigation has
ended, he may move to unseal specific documents.

1

Although unnecessary to this opinion, the court notes that it is far from clear that the defendants have
shown that “there is a compelling interest in secrecy” that would rebut the strong presumption that court filings are
open to the public. See Jessup v. Luther, 277 F.3d 926, 928 (7th Cir. 2002). Certainly, it would be difficult for the
court to evaluate whether there was, indeed, a compelling interest in secrecy in all or part of a certain court filing
without having the document in question in hand. See Citizens First Nat’l Bank, 178 F.3d at 945 (“[A] document
that contains [sensitive information] may also contain material that is not [sensitive], in which case all that would be
required to protect a party’s interest in . . . secrecy would be redaction of portions of the document.”).

6

III.

Whether the producing party should bear the burden of filing a motion to maintain its
confidentiality designation when the parties cannot agree whether a certain document is
confidential.
The defendants’ proposed protective order requires the party challenging the producing

party’s confidentiality designation to file a motion to contest the confidentiality designation
when the parties cannot agree.

Johnson argues that this provision improperly attempts to

partially shift the burden for establishing good cause for a given confidentiality designation. The
court disagrees.

While it is true that “the burden is on the party seeking to maintain

confidentiality to show good cause why the document should not be disseminated,” Trading
Techs., Int’l, Inc. v. BGC Partners, Inc., Nos. 10 C 715, 10 C 716, 10 C 718, 10 C 720, 10 C 721,
10 C 726, 10 C 882, 10 C 883, 10 C 884, 10 C 885, 10 C 929, and 10 C 931, 2011 WL 1547769,
at *8 (N.D. Ill. Apr. 22, 2011) (citing Fed. R. Civ. P. 26(c)), this burden of showing good cause
remains on the party seeking to maintain confidentiality regardless of who files a motion asking
the court to weigh in on a dispute about a confidentiality designation.

See Hecht v.

BabyAge.com, Inc., No. 3:10cv724, 2010 WL 4683749, at *3 (M.D. Pa., Nov. 10, 2010)
(“Nothing in that case law, however, specifies that . . . the burden for demonstrating the need for
a protective order shifts depending on the party filing a motion regarding confidentiality.”); see
also Millwrights’ Local 1102 Supplemental Pension Fund v. Merrill Lynch, Pierce, Fenner &
Smith, Inc., No. 07-15150, 2010 WL 2772443, at *4 (E.D. Mich. Jul. 13, 2010) (“Plaintiff
confuses the ‘burden’-if one can call it that-of filing a motion or objection with the allocation of
the actual burden of proof when the motion is heard. The latter does not change; if the Plaintiff
files an objection to the Defendants’ designation of confidential discovery material, the
Defendants still have the ultimate burden of demonstrating ‘good cause’ under Rule 26(c).”

7

(quoting White v. GC Servs. Ltd. P’ship, No. 08-11532, 2007 WL 174503, at *2 (E.D. Mich. Jan.
23, 2009))).
For their part, the defendants argue that other courts have approved such a provision, but
concede that “simple repetition alone is not an argument for maintaining the status quo.” (Defs.’
Reply at 8.) The defendants argue that if they are required to ask the court to weigh in on a
confidentiality dispute, they might neglect to do so in the allotted time frame, leading documents
to be inappropriately released, which would result in a parade of terribles; thus, the party
challenging the confidentiality designation, presumably Johnson, should be required to so move.
This argument is unpersuasive. Johnson should not be required to move the court to resolve
confidentiality disputes because the defendants doubt their own ability to comply with simple
procedures for protecting their own interests.
There is no requirement that one party or the other be charged with moving the court to
resolve confidentiality disputes.

See Hecht, 2010 WL 4683749, at *3 (“[T]here is no

requirement under these circumstances that only the party seeking confidentiality can challenge a
designation under the agreement.”). “The dispute here, then, is over which procedure will be
fairest to the parties and allow the court most efficiently to resolve any disagreements about
confidentiality.” Id. The court finds the defendants’ procedure to be the most efficient. See id.
(finding that requiring the party challenging a given confidentiality designation to move for a
resolution of the dispute is “more direct, and thus more efficient”). By requiring the party
challenging the confidentiality designation to move the court to resolve the dispute, the
defendants’ procedure provides the court with an opening brief that lays out specific objections
to the contested confidentiality designation. In contrast, Johnson’s procedure might result in the
court receiving an opening brief setting forth broad justifications for confidentiality without

8

addressing the opposing party’s specific objections; the court may have to wait for the response
to get a brief that addresses the heart of the parties’ dispute. Accordingly, Johnson’s objection is
overruled.
One final note is in order.

Johnson argues that the defendants will make “overly

aggressive” use of confidentiality designations, which will “impose a significant and costly
burden” on both Johnson and the court.

(Pl.’s Resp. at 10.)

Should the defendants use

confidentiality designations in bad faith to, for example, drive up the cost of litigation or impose
an undue burden on Johnson, the court will not hesitate to use its power to impose sanctions.
III.

CONCLUSION

The defendants’ motion is granted in part. The defendants shall revise the protective
order as explained in this opinion and submit the revised protective order to the court per the
procedure outlined on the court’s website for proposed orders.

ENTER:
______/s/___________________
JOAN B. GOTTSCHALL
United States District Judge
DATED: June 20, 2011

9