Caine v. City Of Chicago et al
Filing
60
WRITTEN Opinion entered by the Honorable Virginia M. Kendall on 6/28/2012:For the foregoing reasons, the Defendants Motion for the entry of a protective order is granted in part and denied in part, as follows: The videotapes of the Defendants dispo sitions shall be held confidential with access limited to (1) the attorneys of record in the instant case; (2) the staff of those attorneys under the attorneys direct supervision and responsibility; and (3) the parties to the case. The transcripts of the Defendants deposition testimony are not subject to this order. Entered by the Honorable Virginia M. Kendall on 6/28/2012.Mailed notice(tsa, )
Order Form (01/2005)
United States District Court, Northern District of Illinois
Name of Assigned Judge
or Magistrate Judge
Virginia M. Kendall
CASE NUMBER
11 C 8996
CASE
TITLE
Sitting Judge if Other
than Assigned Judge
DATE
6/28/2012
Caine vs. City of Chicago et al
DOCKET ENTRY TEXT
For the foregoing reasons, the Defendants’ Motion for the entry of a protective order is granted in part and denied in
part, as follows: The videotapes of the Defendants’ dispositions shall be held confidential with access limited to (1) the
attorneys of record in the instant case; (2) the staff of those attorneys under the attorneys’ direct supervision and
responsibility; and (3) the parties to the case. The transcripts of the Defendants’ deposition testimony are not subject to
this order.
O[ For further details see text below.]
Docketing to mail notices.
STATEMENT
Defendants have moved for the entry of a protective order to prohibit the public discussion and
dissemination of their deposition testimony in the instant matter. Under Federal Rule of Civil
Procedure 26(c), the Court “may, for good cause, issue an order to protect a party or person from
annoyance, embarrassment, oppression, or undue burden or expense” by inter alia “designating the
persons who may be present while discovery is conducted.” Fed. R. Civ. P. 26. Although the affairs
of federal courts are “presumptively open to public scrutiny,” Hicklin Engʹg, L.C. v. Bartell, 439 F.3d
346, 348 (7th Cir. 2006), “[s]ecrecy is fine at the discovery stage, before the material [to be protected]
enters the judicial record.” Baxter Intʹl, Inc. v. Abbott Laboratories, 297 F.3d 544, 545 (7th Cir. 2002).
Thus, in considering whether to enter a Rule 26(c) protective order, the Court “must balance the
interests involved: the harm to the party seeking the protective order and the importance of
disclosure to the public.” Wiggins v. Burge, 173 F.R.D. 226, 229 (N.D. Ill. 1997). There is “no doubt as
to the constitutionality of a rule allowing a federal court to forbid the publicizing, in advance of
trial, of information obtained by one party from another by use of the court’s processes.”
International Products Corp. v. Koons, 325 F.2d 403, 407 (2d Cir. 1963) (Friendly, J.).
This Court maintains the discretion to determine whether a protective order is appropriate and
what degree of protection is required. See Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984). The
only requirement in deciding whether or not to issue a protective order is the statutory mandate of
“good cause.” See Id. at 37. The party moving for a protective order must establish that good cause
exists for the Court to exercise its discretion in entering a protective order. See Fed. R. Civ. P. 26(c).
Though good cause is difficult to define in absolute terms, “it generally signifies a sound basis or
legitimate need to take judicial action.” Wiggins, 173 F.R.D. at 229 (quoting In re Alexander Grant &
11C8996 Caine vs. City of Chicago et al
Page 1 of 3
STATEMENT
Co. Litig., 820 F.2d 352, 356 (11th Cir. 1987)). Good cause is established by showing that disclosure
will cause a clearly defined and serious injury. See, e.g., Felling v. Knight, No. IP 01–0571–C–T/K,
2001 WL 1782360, *2 (S.D. Ind. Dec. 21, 2001) (Tinder, J.). Some factors to consider in determining
whether good cause exists to issue a protective order are the severity and likelihood of the
perceived harm, the precision of the order, the viability of less onerous alternatives, the duration of
the order, the privacy interests involved, whether the information is important to the public health
and safety, and whether the party benefitting from the confidentiality of the order is a public
official. See In re Alexander Grant & Co. Litig., 820 F.2d at 356; Pansy v. Borough of Stroudsburg, 23 F.3d
772, 787‐788 (3d Cir. 1994). The Court is not limited to considering these factors only, and the Court
must consider the peculiar facts and circumstances of each case and balance the interests involved
in making the good cause determination. See, e.g., Wiggins, 173 F.R.D. at 229.
In a separate matter arising out of related allegations against some of the same defendants, a
court in this District prohibited the public dissemination of substantially similar video of non‐party
deponents. See, e.g., Hobley v. Chicago Police Commander Burge, 225 F.R.D. 221, 223 (N.D. Ill. 2004). In
so doing, the court noted the risk of disclosure to the deponents’ interest in their constitutional
privilege against self‐incrimination and held that this constituted good cause to enter the protective
order. See Id. (citing La Salle Bank Lake View v. Seguban, 54 F.3d 387, 389 (7th Cir. 1995)). The court
held that the deponents’ assertion of their Fifth Amendment right should not be made excessively
burdensome or costly by allowing the dissemination of deposition video for the purpose of
portraying the deponents as asserting their Fifth Amendment right in order to conceal misconduct.
See Id. at 225. Because this risk is no less pressing here, where the deponents are in fact named
Defendants, their interest in prohibiting the dissemination of the videotaped depositions outweighs
the public interest in disclosure. The videotaped depositions can be cut and spliced, used as sound
bites, and disseminated widely over an array of media. The privacy interests of the Defendants and
the potential embarrassment of seeing their video repeatedly throughout the course of this
litigation are persuasive in this Court’s good cause determination. Likewise persuasive is the
Defendants’ interest in asserting their constitutional privilege against self‐incrimination, and in
preventing the dissemination of video the purpose of which is to make it appear that the
Defendants are invoking their Fifth Amendment right in order to conceal their allegedly
unconstitutional acts. Finally, as a result of the wide array of media in which video is now
consumed, the Court notes that videotape deposition testimony may reach many
viewers–especially in isolated clips–and taint the jury pool by predisposing potential jurors to
certain views about the Defendants. This case will be tried before this Court, in front of an
unbiased jury, and not in the court of public opinion in which clips of videotape is disseminated
widely. Thus, good cause exists to justify granting a protective order to prohibit the dissemination
of the videotaped depositions of the Defendants.
The Court recognizes that “[v]ideotapes are subject to a higher degree of potential abuse than
transcripts” due to their ease of distribution in the popular media. See, e.g., Felling, 2001 WL
1782360, at *2 (Tinder, J.) (granting protective order for video deposition and denying protective
order for deposition transcripts and other documents). Because transcripts are less susceptible to
wide public distribution, they pose a reduced risk of generating unfair prejudice against the
11C8996 Caine vs. City of Chicago et al
Page 2 of 3
STATEMENT
deponents. See Id. As the court in Felling recognized, the sealing of videotape depositions has been
approved in several high‐profile cases while the written deposition transcripts have been made
available to the public. See Id. at *3 (citing United States v. McDougal, 103 F.3d 651, 658 (8th Cir.
1996); Jones v. Clinton, 12 F. Supp. 2d 931, 935 & n.6 (E.D. Ark. 1998)). For this reason, the
Defendants’ interest in prohibiting the dissemination of transcripts of their depositions does not
outweigh the interest in disclosure of similarly situated plaintiffs pursuing actions against the
Defendants. The Defendants have not demonstrated a clearly defined and serious injury that will
result to them from the dissemination of the deposition transcripts. Thus, the Court finds that good
cause does not exist to justify entering a protective order forbidding the dissemination of the
deposition transcripts.
For the foregoing reasons, the Defendants’ Motion for the entry of a protective order is granted
in part and denied in part, as follows: The videotapes of the Defendants’ dispositions shall be held
confidential with access limited to (1) the attorneys of record in the instant case; (2) the staff of
those attorneys under the attorneys’ direct supervision and responsibility; and (3) the parties to the
case. The transcripts of the Defendants’ deposition testimony are not subject to this order.
11C8996 Caine vs. City of Chicago et al
Page 3 of 3
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?