Perez et al v. City of Chicago et al
MEMORANDUM Opinion and Order Signed by the Honorable Mary M. Rowland on 9/8/2017. Mailed notice. (dm, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
ATHERIS MANN, ET AL.,
CITY OF CHICAGO, ET AL.,
No. 15 CV 9197
Magistrate Judge Mary M. Rowland
ANGEL PEREZ, ET AL.,
No. 13 CV 4531
Magistrate Judge Mary M. Rowland
CITY OF CHICAGO, ET AL.,
MEMORANDUM OPINION AND ORDER
Before the Court is Plaintiffs’ Motion to Compel Defendant City of Chicago to
Include Certain Custodians from the Mayor’s Office (“Motion”) which seeks to
compel the City to include Mayor Rahm Emanuel and ten members of his staff as
custodians in the City’s email search. For the reasons set forth below, Plaintiffs’
Motion (Dkt. 68) is GRANTED IN PART and DENIED IN PART.
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In Mann v. City of Chicago et al, 15 C 9197 (“Mann”), Plaintiffs sued Chicago
police officers and the City of Chicago (“the City”) alleging that Defendants
wrongfully arrested, detained, and prosecuted them and that they were abused at
the Chicago Police Department’s (“CPD”) “off the books” detention center located at
the intersection of South Homan Street and West Filmore Avenue in Chicago
(“Homan Square”). In Perez v. City of Chicago et al, 13 C 4531 (“Perez”), plaintiffs
bring a class action lawsuit against Chicago police officers and the City alleging
that they and the members of the proposed class were subject to unconstitutional
police practices at “off the grid” facilities such as Homan Square, where they were
arrested, abused and detained without a record of their arrest or access to counsel.
The Mann and Perez cases were consolidated for pretrial proceedings. (see Perez,
Dkt. 178; Mann, Dkt. 48). This Court denied the City’s motion to bifurcate Monell
this is not a run-of-the-mill Monell claim based on excessive force or
wrongful arrest. The allegation here is that the City sanctioned the use
of a facility, not a police station, to detain suspects without charges
and without access to counsel or families, used coercive tactics during
interrogations, and sanctioned a code of silence…The fact that the
facility was not a police station, and was unknown to the public,
potential counsel and families of those detained, raises a number of
discovery questions as to the policies that governed that facility, what
level of command authorized and knew about the facility, and the
command structure of the facility. While these are currently contained
in the Monell count, questions about the authority of the individual
officers to detain the individual plaintiffs at Homan Square would be
fair discovery even absent the Monell claim. (Mann, Dkt. 60). 1
This Court denied the City’s motion to bifurcate discovery in the Mann case. The City did
not move to bifurcate in the Perez case. (Mann, Dkt. 60).
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To streamline discovery, the parties in both cases are working jointly to conduct
Monell discovery and have agreed on search terms and the majority of custodians.
The Court appreciates these efforts. The parties also agree that electronic discovery
will include the Mayor’s Office, but reached an impasse on which custodians in the
Mayor’s Office should be searched. (Dkt. 68 at 3). Plaintiffs argue Mayor Emanuel
and ten members of his senior staff, including current and former chiefs of staff and
communications directors are relevant to Plaintiffs’ Monell claim. (Id. at 5). 2 The
City responds that Plaintiffs’ request is burdensome, and that Plaintiffs have failed
to provide any grounds to believe that the proposed custodians were involved with
CPD’s policies and practices at Homan Square. (Dkt. 74 at 1, 6). The City proposes
instead that it search the two members of the Mayor’s staff responsible for liasoning
with the CPD and leave “the door open for additional custodians” depending on the
results of that search. (Id. at 2, 4). 3
There is no dispute that communications within and between the Mayor’s Office and other
City agencies has been requested by Plaintiffs. See Plaintiffs’ Document Request Nos. 14 &
24. (Dkt. 68-1 at 3–4).
3 Although Plaintiffs’ motion refers to its request for documents from Corporation Counsel’s
Office and the Police Superintendent, it appears either that the issue was resolved between
the parties or that those specific documents are not the subject of the present motion to
compel. (Dkt. 68 at 4). The Court also notes that the City refers to the emails containing
“privileged information” but otherwise does not make any argument based on privilege in
its Response. (Dkt. 74 at 5). The City, of course, will be able to claim privilege if appropriate
and provide a proper privilege log.
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A. Applicable Law
District courts have broad discretion in supervising discovery and ruling on
discovery motions. Cent. States, Se. & Sw. Areas Pension Fund v. Waste Mgmt. of
Mich., Inc., 674 F.3d 630, 636 (7th Cir. 2012). The court “may grant or deny the
motion [to compel] in whole or in part, and…may fashion a ruling appropriate for
the circumstances of the case.” Gile v. United Airlines, 95 F.3d 492, 496 (7th Cir.
1996) (citing Fed. R. Civ. P. 37(a)(4)(B), (C)). Under Federal Rule of Civil Procedure
26, a court should consider the importance of the issues at stake, the amount in
controversy, the parties’ relative access to relevant information and their resources,
the importance of the discovery in resolving the issues, and whether the burden or
expense of the proposed discovery outweighs its likely benefit in determining
whether to compel production. Fed. R. Civ. Pro. 26(b)(1). With regard to
electronically stored information, if a party claims that such discovery from certain
sources would be unduly burdensome or costly, that party must show that the
information is not reasonably accessible because of undue burden or cost. Fed. R.
Civ. Pro. 26(b)(2)(B).
Although “the burden is upon the objecting party to show why a discovery
request is improper” (Rubin v. Islamic Republic of Iran, 349 F. Supp. 2d 1108, 1111
(N.D. Ill. 2004)), relevance remains a “precondition” to discovery. Miller UK Ltd. v.
Caterpillar, Inc., 17 F. Supp. 3d 711, 721 (N.D. Ill. 2014); see also Kleen Prods. LLC
v. Packaging Corp. of Am., No. 10 C 5711, 2012 U.S. Dist. LEXIS 139632, at *46
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(N.D. Ill. Sep. 28, 2012) (“The selection of custodians must be designed to respond
fully to document requests and to produce responsive, nonduplicative documents
during the relevant period.”).
B. Relevance of the Discovery
Plaintiffs in both cases seek to hold the City liable under Monell v. Dep't of Soc.
Servs., 436 U.S. 658 (1978) (“Monell”). It is well-settled that Monell liability arises
“if, among other things: (1) [the municipality] has a permanent and well-settled
municipal custom or practice that, although not authorized by official law or policy,
was the moving force behind the plaintiff's constitutional injury; or (2) an individual
with final policy-making authority for the municipality (on the subject in question)
caused the constitutional deprivation.” Valentino v. Vill. of S. Chi. Heights, 575 F.3d
664, 674 (7th Cir. 2009). Plaintiffs argue that communications within, from, and to
the Mayor’s Office regarding Homan Square are relevant to notice, ratification,
cover-up and deliberate indifference under Monell. (Mann, Dkt. 68 at 5, Dkt. 75 at
4). In light of the allegations in the complaints, the Court agrees that these
communications are relevant for purposes of discovery.
The Mann complaint alleges that in 2013, the Plaintiffs were falsely arrested
and detained at Homan Square and in 2015, after spending approximately 15
months in Cook County Jail, a judge found them not guilty. (Am. Compl. Dkt. 50, ¶¶
13–16, 20-24, 66–67, 96). As to the City, the complaint claims that it “is responsible
for the policies, practices and customs of the Chicago Police Department that are
alleged herein” and that the unconstitutional actions of defendant police officers
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“were done pursuant to one or more interrelated de facto policies, practices and/or
customs of [the City], acting through and by its Police Department, Police
Superintendents, Police Board, Mayors, and City Council.” (Id., ¶¶ 10, 88). These
alleged policies include maintaining an “off the books” police detention center at
Homan Square, using unconstitutionally coercive interrogation tactics and
manufactured evidence against persons detained at Homan Square, the police code
of silence, and the failure to properly train, discipline, and supervise police officers.
(Id. at ¶ 89).
The Perez complaint alleges that Plaintiffs were arrested and detained at
Homan Square in 2012 and 2015, and proposes to represent a class of people
arrested or detained without a court order. (Third Am. Compl. Dkt. 202, ¶¶ 20, 44,
78, 91–92, 117). Plaintiffs assert that the unconstitutional violations described in
the complaint “were effectuated by Defendant City of Chicago through its customs,
practices, and policies.” (Id., ¶ 108). The complaint alleges that the City’s practice
and policy through the CPD “in holding citizens at these [‘off the books’] facilities,
involuntarily, incommunicado, without processing them, without reading them
their Miranda rights…is unconstitutional” and the City’s conduct “through the
actions of its policy makers, was to train officers to seize, transport, and secretly
detain citizens at facilities other than police stations for extended periods of time,”
where they interrogated them, denied them access to attorneys, refused access to
food, water, and restrooms, attempted to coerce false confessions, and threatened
them if they did not provide information. (Id., ¶¶ 14, 112).
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C. Defendant’s Arguments
1. Factual Basis
The City argues that Plaintiffs’ request for additional custodians lacks a “factual
basis.” The City takes issue with Plaintiffs’ assertion that the Mayor is a
“policymaker” for the City. The City asserts that Plaintiffs “do not contend that the
Mayor or his aides created or influenced any CPD policies at Homan Square” and
Plaintiffs’ only attempt to link the Mayor to Homan Square is a “double hearsay
statement” in an April 2015 Guardian article which the Plaintiffs have “no evidence
to support.” These arguments impose too high a burden on Plaintiffs.
On summary judgment or at trial, Plaintiffs will have to provide evidence that
“the unlawful practice was so pervasive that acquiescence on the part of
policymakers was apparent and amounted to a policy decision” or that a
policymaking official responsible for final government policy on the police practices
at issue directed the particular conduct that caused Plaintiffs’ harm. See Valentino,
575 F.3d at 675–76 (internal citations and quotations omitted). But at this stage
Plaintiffs do not have to establish that the Mayor was a policymaker or had final
authority on the police practices at issue or that there is a “nexus” between the
custodians of the emails and CPD’s alleged activities at Homan Square. (Dkt. 74 at
2). Said another way, Plaintiffs do not have to provide evidence of the Mayor’s
connection to Homan Square in order to get discovery potentially showing (or not)
the Mayor’s or his staffs’ connection to Homan Square.
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The City’s reliance on Vodak v. City of Chi., 639 F.3d 738 (7th Cir. 2011) and
Valentino, 575 F.3d 664 is not persuasive. In both Vodak and Valentino, the
Seventh Circuit Court of Appeals was tasked with determining, post summary
judgment determinations, whether a particular official was a final policymaker for
Monell liability purposes. In Valentino, the Seventh Circuit concluded that the
evidence showed that the Mayor of the Village of South Chicago Heights was the
final policymaker for the Village with regard to personnel decisions. 575 F.3d at
677–78. In Vodak, the Seventh Circuit found that the City of Chicago’s
Superintendent of Police was the final policymaker with regard to demonstrations
and mass arrests. 639 F.3d at 747–50.
Plaintiffs respond that whether the Mayor is the “final” policymaker under
Monell in this case does not matter at this stage. (Dkt. 75 at 4). The Court agrees.
At this point, the Court is only concerned with the propriety and scope of discovery.
So Plaintiffs’ theory may be that the Mayor was the final policymaker for the City
with regard to police practices at Homan Square or that the City’s well-settled
custom or practice was the moving force behind Plaintiffs’ injury. Either is a viable
theory under Monell and discussions internal to the Mayor’s office about Homan
Square would be relevant to those theories. See Valentino, 575 F.3d at 675–76
(addressing plaintiff’s two theories of Monell liability on summary judgment); see
also LaPorta v. City of Chi., No. 14 C 9665, 2016 U.S. Dist. LEXIS 111297, at *5–6
(N.D. Ill. Aug. 22, 2016) (“[T]he Court does not intend to say that Emanuel is the
final policymaker for Monell purposes; that issue is beside the point, because
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LaPorta need not identify an individual with ‘final policymaking authority’ to
succeed on his Monell claim.”) and Marcavage v. City of Chi., 467 F. Supp. 2d 823,
830 (N.D. Ill. 2006) (“this Court simply cannot say without further development of
the record that Mayor Daley does not make official policy in Chicago…as to police
enforcement…that could run afoul of plaintiffs’ constitutionally protected rights.”).
The City also relies on LaPorta, 2016 U.S. Dist. LEXIS 111297, in which
plaintiffs claimed the City had a practice of condoning a code of silence in the CPD.
The LaPorta court denied plaintiff’s motion to compel the Mayor’s deposition.
Relying on Olivieri v. Rodriguez, 122 F.3d 406, 409–10 (7th Cir. 1997), which stated
that public officials “should not have to spend their time giving depositions in cases
arising out of the performance of their official duties unless there is some reason to
believe that the deposition will produce or lead to admissible evidence,” the court
concluded that plaintiff failed to show that the information sought in the deposition
was unavailable by other means particularly since plaintiff had not served
interrogatories on the Mayor. LaPorta, 2016 U.S. Dist. LEXIS 111297 at *6–7. In
light of the Mayor’s “unique position,” the court declined to compel the Mayor’s
deposition. This case is does not help the City here since Plaintiffs seek to have
emails searched, not to take the Mayor or his staff away from their duties by taking
their depositions. See Stagman v. Ryan, 176 F.3d 986, 994 (7th Cir. 1999)
(“depositions of public officials create unique concerns.”).
The City is correct that the court in LaPorta questioned plaintiff’s need for more
information beyond what the Mayor stated publicly about the police code of silence.
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But the Mayor’s public statements in that case were “relevant proof” of plaintiff’s
claim and the court wondered what more plaintiff needed. LaPorta, 2016 U.S. Dist.
LEXIS 111297 at *4, 6. By contrast, here Plaintiffs argue that the Mayor has not
made public statements about Homan Square with the exception of the Mayor’s
public response to a question about it, that everything is “done by the books,” which
contradicts the allegations in the Mann and Perez complaints. Plaintiffs are entitled
to discover, among other things, whether the Mayor or his high ranking staff made
non-public statements or were involved in non-public communications about Homan
Square. See Marcavage, 467 F. Supp. 2d at 830 (“Plaintiffs are entitled to the
opportunity, through discovery, to develop the facts that can show the existence of
the policies that they allege are actionable under Monell.”). 4
Finally, the City has agreed to search Janey Rountree’s and Felicia Davis’s
emails because they served as the Mayor’s Office liasons with the CPD since 2011.
(Dkt. 74 at 1–2). While the Court appreciates the City’s agreement to search these
two custodians, this position undercuts the City’s contention that other custodians
should not be searched because Plaintiffs have not shown a link between the
Mayor’s Office and Homan Square. (Dkt 74 at 6). The Court understands that the
City identified Ms. Rountree and Ms. Davis as the most likely holders of responsive
emails. (Id. at 5). But in light of the allegations in the complaint, the Mayor and his
upper level staff also might have responsive emails. Of course, it is possible that the
With regard to Plaintiffs’ reliance on an April 2015 Guardian article to argue that the
Mayor may have responsive documents, the Court is not relying on this document to reach
its conclusion. To be clear, the Court is relying on the allegations in the Complaints to find
that the discovery sought is relevant—not an article posted on the internet.
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search, which is already limited by the agreed upon terms, will turn up few
responsive emails regardless of which custodian in the Mayor’s Office is searched.
But limiting the search to Rountree and Davis (as the City proposes) may not
capture many responsive documents since it is possible that the Mayor or his upper
level staff communicated about Homan Square internally and did not include
Rountree, Davis, or the CPD in these communications. 5
2. Burden on the City
The City argues that it will be “burdened with the time and expense of searching
the email boxes of nine (9) additional custodians.” (Dkt. 74 at 5). The City does not
offer any specifics or even a rough estimate about the burden. See Kleen Prods. LLC
2012 U.S. Dist. LEXIS 139632, at *48 (“[A] party must articulate and provide
evidence of its burden. While a discovery request can be denied if the ‘burden or
expense of the proposed discovery outweighs its likely benefit,’ Fed. R. Civ. P.
26(b)(2)(C)(iii), a party objecting to discovery must specifically demonstrate how the
request is burdensome.”) (internal citations and quotations omitted). As the Seventh
Circuit stated in Heraeus Kulzer, GmbH, v. Biomet, Inc., 633 F.3d 591, 598 (7th Cir.
[The party] could have given the district court an estimate of the
number of documents that it would be required to provide Heraeus in
order to comply with the request, the number of hours of work by
lawyers and paralegals required, and the expense. A specific showing
of burden is commonly required by district judges faced with objections
to the scope of discovery…Rough estimates would have sufficed; none,
rough or polished, was offered.
Both parties discuss the Laquan McDonald emails that Plaintiffs attached to their Reply.
The Court does not find these emails to be relevant or persuasive in deciding this motion.
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The City argues in its sur-reply that it is impossible to determine how many
emails there may be “unless the City actually runs the searches and collects the
material.” (Dkt. 78-1 at 4). Still, the City should have provided an estimate of the
burden. The Court is not convinced by the City’s argument about the burden. In
addition, other Rule 26 factors—the importance of the issues and of the discovery in
resolving the issues, and the parties’ relative access to information and their
resources—weigh in favor of allowing discovery of more than just the two custodians
proposed by the City. The Monell issues are important to the issues at stake in both
Mann and Perez. And only the City has access to this information. However,
searching all of the custodians proposed by Plaintiffs is not proportional to the
needs of the case.
The Court is mindful that every additional custodian increases the risk of
duplication of emails and the time and resources necessary to review emails.
Therefore, the Court will not require the City to search the following emails because
of the short tenure of the staff person or the time during which the person held the
position: Forest Claypool, Adam Collins, Joan Coogan and Eileen Mitchell.
The City has agreed to search Ms. Rountree’s and Ms. Davis’s emails. The Court
orders the City to also include Mayor Rahm Emanuel, Joe Deal (limited to the time
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period that he served as either Deputy Chief of Staff or Chief of Staff), Kelly Quinn,
Lisa Schrader, and Shannon Breymaier 6 as custodians in the City’s search.
Plaintiffs’ request for sanctions (Dkt. 68 at 7) is denied. Plaintiffs’ motion to
compel is being granted only in part. The Court does not view the City’s conduct as
sanctionable and both parties’ diligent efforts to work together shows that “other
circumstances make an award of expenses unjust.” Fed. R. Civ. Pro. 37(a)(5)(A)(iii).
For the reasons discussed above, Plaintiffs’ Motion to Compel Defendant City of
Chicago to Include Certain Custodians in Their Email Search  is GRANTED IN
PART and DENIED IN PART.
E N T E R:
Dated: September 8, 2017
MARY M. ROWLAND
United States Magistrate Judge
To the extent any of the latter three individuals held other posts at the City of Chicago,
not in the Mayor’s Office, during the relevant time period, the City can exclude that
timeframe from their search.
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