Jackson v. City of Chicago et al
Filing
91
MEMORANDUM Opinion and Order Signed by the Honorable Joan B. Gottschall on 11/14/2017. Defendant's unopposed motion for protective order (ECF No. 88 ) is denied without prejudice. Mailed notice(mjc, )
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ANDRE JACKSON,
Plaintiff,
v.
CITY OF CHICAGO, et al.,
Defendants.
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Case No. 14 C 6746
Judge Joan B. Gottschall
MEMORANDUM OPINION AND ORDER
The plaintiff, Andre Jackson, brings claims under 42 U.S.C. § 1983 against the City of
Chicago (“the City”) and two Chicago police officers for use of excessive force and malicious
prosecution. Jackson’s claims arise from a police-involved shooting that occurred on September
4, 2012. Jackson alleges that the officers pursued him into an alley and shot him without
probable cause. See 2d Am. Compl. ¶¶ 6, 7, ECF No. 65.
Defendants move without opposition for entry of a confidentiality order governing the
disclosure of material produced during discovery. For the following reasons, the court finds that
they have not shown good cause for entry of their proposed protective order and denies the
motion without prejudice.
The Proposed Confidentiality Order
Defendants’ proposed confidentiality order tracks this court’s Local Rule 26.2 model
confidentiality order except that it includes language specific to the contents of complaint
registers (“CRs”), which are investigative files of complaints against Chicago police officers,
produced in discovery. See Proposed Confidentiality Order ¶ 2(b), ECF No. 88-1 (highlighting
changes to model order). As proposed, the City will produce the contents of a CR without
redacting anything. Id. The CR’s contents can be shared with parties, their attorneys, court
personnel, court reporters, certain contractors, certain consultants and experts, witnesses at
depositions to a limited extent, and a document’s author. See id. ¶¶ 2(b), 5(b) (defining exactly
who may access material designated as confidential information). The proposed confidentiality
order also includes a process for releasing the contents of a CR file. See id. ¶ 2(b).
Dissemination of the contents of a CR file is permitted only after giving “written notice, 30 days
prior, to the officer’s attorney(s) and to the City of Chicago’s attorney, if different, to permit such
attorneys and parties to provide a FOIA-screened copy of the CR File within that time or any
other further reasonable time granted by the Court, which will then be produced without the
designation ‘CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER.’” Id. The city says
that this procedure will reduce the burden and expense of discovery by avoiding the cost a pageby-page review of CRs, which are often lengthy and require a detailed analysis. Id.
Legal Standard
For good cause, the court may limit the scope of discovery “to protect a party or person
from annoyance, embarrassment, oppression, or undue burden or expense.” Fed. R. Civ. P.
26(c)(1). “Absent a protective order, parties to a lawsuit 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. Publ’g Co., 748 F.2d 1421, 1424 (10th Cir. 1984));
but see 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
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‘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 Chicago, 273 F.R.D. 421, 422 (N.D. Ill. Apr.8, 2011) (citing Wiggins v. Burge, 173 F.R.D.
226, 229 (N.D. Ill. 1997)).
Analysis
The good-cause analysis requires a case-specific balancing of all of the facts and
circumstances including “privacy interests, whether the information is important to public health
and safety and whether the party benefitting from the confidentiality of the protective order is a
public official.” Id. (quoting Wiggins, 173 F.R.D. at 229). A decision of an intermediate Illinois
appellate court has put to rest a long-standing question that has loomed over requests for
protective orders in analogous cases, namely whether the CRs were exempt from disclosure in
their entirety under the Illinois Freedom of Information Act (“IFOIA”), 5 ILCS 140/1 et seq. See
Calhoun, 273 F.R.D. at 423 (collecting and discussing district court cases under earlier version of
the IFOIA on this question). As defendants acknowledge, the contents of CRs no longer enjoy
blanket protection under the IFOIA after Kalven v. City of Chicago, 7 N.E.3d 741, 745–50 (Ill.
App. Ct. 2014). The IFOIA does not control this court’s determination of good cause, Calhoun,
273 F.R.D. at 423 (citing Rangel v. City of Chicago, No. 10 C 2750, 2010 WL 3699991, at *2
(N.D. Ill. Sept. 13, 2010)), but it can be helpful in making that determination, Jacobs v. City of
Chicago, No. 14 CV 5335, 2015 WL 231792, at *2 (N.D. Ill. Jan. 16, 2015) (citing Johnson v.
Kemps, No. 09 CV 4857, 2011 WL 2550507, at *2 (N.D. Ill. June 20, 2011)). In the wake of
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Kalven, several judges in this district have ruled that a blanket order forbidding dissemination of
the contents of CR files to third parties cannot be justified. See Jacobs, 2015 WL 231792, at *1,
2–3 (collecting cases).
Defendants tell the court that treating everything in a CR file as presumptively
confidential and creating a 30-day notice process for redaction will reduce the burden of
reviewing CR files before producing them and so speed the discovery process. They cite a
number of cases in which judges in this district granted unopposed motions and entered orders in
substantially the same form as the proposed order here. See, e.g., Garrit v. City of Chicago, No.
16 C 7319 (N.D. Ill. Aug. 25, 2017); Bridges v. City of Chicago, No. 17 C 651 (N.D. Ill. Sept.
18, 2017). But defendants point to no on the record analysis in those cases, and the court can
find none.
The court has found only one post-Kalven case squarely considering the City’s proposal
for a 30-day notice period. 1 It concluded that the City and defendant police officers “failed to
show good cause for treating entire CR files as confidential by default.” 2 Sokol v. City of
Chicago, No. 13 CV 5653, 2014 WL 5473050, at *3 (N.D. Ill. Oct. 29, 2014). The Sokol court
considered a 30-day notice period an “unnecessary step in the discovery process, especially
considering that any relevant statutes likely do not protect from disclosure the majority of the
information contained in the CR files.” Id.
1
A review of the docket in Jacobs shows that the confidentiality order entered there included a 30-day review
period. Confidentiality Order at 12, Jacobs v. City of Chicago, No. 14-CV-5335 (N.D. Ill. Jan. 16, 2015), ECF No.
34. Nonetheless, while the decision on the motion for protective order there analyzes several issues, it includes no
specific discussion of the 30-day period or providing material from CR files to attorneys representing police officers.
See 2015 WL 231792, at *2–3.
2
Sokol was decided before the voluminous-records amendment to the IFOIA took effect on December 4, 2014. See
2014 Ill. Legis. Serv. P.A. 98-1129 (H.B. 3796), § 5 (West). For the reasons explained in the text, infra, the IFOIA
sets deadlines for responding to voluminous-records requests that are fairly comparable to the deadlines for
responding to a request for production of documents set by the Federal Rules of Civil procedure. The Illinois
legislature’s judgments about the burdens imposed on a public body embodied in the voluminous-records provision
therefore do not alter this court’s good-cause analysis.
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Sokol’s observation that most of what CR files contain is not confidential and the implicit
judgment that adding the 30-day notice period will hinder more than help the discovery process
accords with the court’s experience in similar cases. In Calhoun, this court found a predisclosure
review process for CRs to be reasonable but gave the defendants only seven days to conduct the
review. Calhoun, 273 F.R.D. at 422–23 (Gottschall, J.). Defendants offer the court no reason to
depart from that balancing here, and the court’s subsequent experience in Calhoun and Sokol
suggest that the review process may be unnecessary. Indeed, the court denied a request for a
blanket protection for CRs after Kalven and heard no complaints of slow or burdensome
discovery from the parties in a case involving voluminous production from the City. See Kuri v.
City of Chicago, No. 13 CV 1653, ECF No. 77, Slip Op. at 3–4 (N.D. Ill. June 11, 2014)
(Gottschall, J., since reassigned). As the court disposes of the instant motion without prejudice,
Defendants may attempt to persuade the court of the continued need for a review process if they
choose to move for entry of a similar protective order. 3
The proposed confidentiality order also includes language requiring dissemination not
just to the City’s attorneys but to counsel representing individual police officers. See Proposed
Confidentiality Order ¶ 2(b). If this provision is intended to refer only to parties to the case, it
does not say so. See id. Defendants cite no authority demonstrating that under Illinois law, the
3
Under the Federal Rules of Civil Procedure, the City ordinarily has 30 days to respond to a request for production
of documents like a CR file. Fed. R. Civ. P. 34(b)(2)(A) (allowing stipulations to extensions with court approval).
This period falls in the middle of the time period within which the Illinois legislature requires a public body to
respond to an IFOIA request for voluminous records.3 See 5 Ill. Comp. Stat § 5/140-3.6(a)–(d) (West 2017). Under
that process, a public body must respond to a request it believes is voluminous within 5 business days. § 3.6(a).
The requester then has 10 business days to amend the request or otherwise respond, § 3.6(a)(iii), and if the public
body still believes the request is voluminous, it must still respond within 5 business days, though it can request an
additional 10 business days, see id. § 3.6(c)–(d). Including the optional 10-day extension, these periods add up to 30
business days. Assuming a week consisting of 5 business days, the IFOIA period analogizes to 42 days under the
Federal Rules, which count periods of days without reference to business days and holidays, see Fed. R. Civ. P.
6(a)(1)(B), and without the 10-day extension the public body may request, the total comes to 28 days. These periods
do not differ greatly from the default 30-day period set by Rule 34 to review documents and produce them. While
the court intimates no view on the matter, any subsequent briefing should discuss how, if at all, the judgment
implicit in the timelines set by the Illinois legislature affects the good-cause analysis.
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officers would have the right or ability to participate in the process of reviewing and redacting
material under the IFOIA. And they do not explain why this court should use its independent
authority to give officers a right to a prerelease review while withholding a similar right from,
say, victims or witnesses whose interests might be implicated by inadvertent disclosures of the
contents of CR files.
Furthermore, the proposed confidentiality order lists no fewer than 37 categories of
material allegedly protected from public disclosure by Illinois law. See Proposed Confidentiality
Order tbl. at 3–4. The court agrees that some kinds of information, the identities of victims and
witnesses for instance, should generally be protected from public disclosure. See Calhoun, 273
F.R.D. at 423–24 (finding that defendants had arguable privacy interests in the CRs and that
“there is some potential for harassment or embarrassment since the unsustained CRs have not
been corroborated”). But as proposed, the confidentiality order substitutes categorical rules for
redaction even for things that require more nuanced balancing under Illinois law. See Proposed
Confidentiality Order 3 (stating that redacted copy “will contain” all listed redactions). Some of
the categories of material include subjective criteria not present in the cited statutory language.
Item 28, for instance, requires redaction of all “[p]hotographs that are graphic in nature.” 4
Proposed Confidentiality Order 4. The IFOIA exemption cited for that redaction is a more
general prohibition on disclosing “information that is highly personal or objectionable,”
however. 5 Ill. Comp. Stat 140/7(1)(c) (West 2017) (“‘Unwarranted invasion of personal
privacy’ means the disclosure of information that is highly personal or objectionable to a
reasonable person and in which the subject’s right to privacy outweighs any legitimate public
interest in obtaining the information.”). Defendants propose to elide the balancing of legitimate
4
The proposed order separately protects “[p]hotographs of victims and CR complainants,” though it makes no
mention of photographs of city employees. Id.
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interests the IFOIA would require in favor of categorical redactions. See Lieber v. Bd. of Trs. of
S. Ill. Univ., 680 N.E.2d 374, 379 (Ill. 1997) (holding that applying this provision requires the
court to “evaluate the particular information on a case-by-case basis”). By requiring
nondisclosure categorically where balancing is required, the proposed confidentiality order can
be read as providing even greater protection from disclosure than the IFOIA. Defendants neither
appreciate this issue in their motion or show good cause for including purported paraphrases of
Illinois statutes—paraphrases that could themselves further complicate disputes under the
order—in the confidentiality order. See Jacobs, 2015 WL 231792, at *3 (rewriting portion of
analogous confidentiality order proposed by the City to list three categories of confidential
information).
Finally, the proposed confidentiality order includes an exception that appears designed to
address possible First Amendment concerns. It provides that “[s]ubject to this public release
procedure set forth above for CR files, information or documents that are available to the public
may not be designated as Confidential Information.” Proposed Confidentiality Order 5. As the
court reads it, this provision limits what can be designated as confidential during the review
process envisioned by the proposed order. It does not restrict anyone’s ability to disseminate
information learned from another source, even if the information duplicates something in a CR
file produced during discovery. See id. (“This Order does not apply to materials obtained from
sources other than discovery in this case.”). Understood this way, the order does not appear on
its face to impose a prior restraint in violation of the First Amendment. See Seattle Times, 467
U.S. at 32–34, 37 (explaining that when an exception like this one is included, “judicial
limitations on a party’s ability to disseminate information discovered in advance of trial
implicates the First Amendment rights of the restricted party to a far lesser extent than would
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restraints on dissemination of information in a different context”); Grove Fresh Distribs., Inc. v.
John Labatt Ltd., 888 F. Supp. 1427, 1442 (N.D. Ill. 1995) (quoting Seattle Times and finding
confidentiality order did not impose prior restraint on attorney’s speech “[b]ecause [the attorney]
could ‘disseminate the identical information covered by the protective order as long as the
information [was] gained through means independent of the court’s processes’” (third set of
brackets in original)).
While defendants cite Seattle Times in the instant motion, they provide no detailed
analysis of its applicability. The proposed sentence affirming the right to disseminate
information from an independent source is “[s]ubject to this public release procedure.” Proposed
Confidentiality Order 5. In all but the clearest cases, a prudent reader who has received the
contents of a CR file in discovery might feel obliged to invoke the review process or consult the
City or the court to determine whether information about which she is considering speaking
publicly is truly available from an independent source. See id. This has a chilling effect on the
reader’s speech about publicly available information. See Grove Fresh, 888 F. Supp. at 1442
(acknowledging that requiring court approval and vetting of claim that information was available
from public source restricted attorney’s right to speak). The risk of chilling speech may be
warranted so long as it is reasonable. See id. (determining that restriction imposed after initial
disclosure of confidential information by attorney was reasonable and de minimis in light of the
case’s facts). But the City has not attempted to show that the chill imposed on disseminating
publicly available information found in CR files is no greater than necessary to further its
legitimate interests. See Seattle Times, 467 U.S. at 32 (analyzing confidentiality order by asking
“whether the ‘practice in question [furthers] an important or substantial governmental interest
unrelated to the suppression of expression’ and whether ‘the limitation of First Amendment
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freedoms [is] no greater than is necessary or essential to the protection of the particular
governmental interest involved’” (quoting Procunier v. Martinez, 416 U.S. 396, 413 (1974)
(alterations in original)); see also Grove Fresh, 888 F. Supp. at 1442 (discussing judge’s decision
to impose a requirement after an improper disclosure was made apparently because initial
confidentiality order included no such requirement).
Conclusion
For the reasons stated, defendant’s unopposed motion for protective order (ECF No. 88)
is denied without prejudice.
Dated: November 14, 2017
/s/
Joan B. Gottschall
United States District Judge
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