Simon v. Northwestern University et al

Filing 452

MEMORANDUM Opinion and Order: Signed by the Honorable M. David Weisman on 11/15/2018. Mailed notice (ao,)

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
Alstory Simon,

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Plaintiff,
vs.
Northwestern University, et al.,
Defendants.

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Case No. 1:15-cv-01433
Judge Robert M. Dow, Jr.
Magistrate Judge M. David Weisman

MEMORANDUM OPINION AND ORDER
Defendant Paul Ciolino filed a motion to lift protective order (in part) and unseal selected
filings [426] on June 11, 2018. For the reasons set forth below, the Court denies Defendant
Ciolino’s motion.
Background
This case has been closed. After more than three years of contentious litigation involving
numerous discovery disputes, Plaintiff reached a settlement agreement with Defendants
Northwestern University and David Protess, and voluntarily dismissed Ciolino. (Dkt. 418, 424.)
In his motion, Ciolino requests that the Court (1) lift the protective order in place as to all
depositions (except those of former Northwestern students, Shawn Armbrust and Tom McGann)
and all documents from the Cook County State’s Attorney’s Office (“CCSAO”) and (2) unseal
certain pleadings. 1 Alternatively, Ciolino requests that the Court “require the parties to identify

Ciolino expanded his requested relief in his reply brief, arguing that “all confidential designations should be struck
on all depositions and discovery produced in this litigation.” (Dkt. 442 at p. 6.) The Court will not consider Ciolino’s
enlarged request as it was raised for the first time in his reply brief. See, e.g., Sloan Valve Co. v. Zurn Indus., Inc.,
No. 10-cv-00204, 2014 WL 51293, at *3 (N.D. Ill. Jan. 7, 2014) (“[U]ndeveloped arguments and arguments raised
for the first time in reply brief are waived.”).

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what sections of the depositions” taken in this matter should remain confidential, and allow Mr.
Ciolino an opportunity to respond. (Dkt. 426 at p. 4.) Plaintiff, Northwestern, Protess, and NonParty Respondent CCSAO have each lodged an objection to Ciolino’s motion. (Dkt. 438, 439,
441.)
On November 18, 2016, the Court entered a protective order – without objection from any
party – which prescribed the treatment of confidential information in this litigation. (Dkt. 185.)
Upon motions from Defendants Northwestern and Protess, the Court subsequently entered an
Amended Protective Order (the “Protective Order”) on June 14, 2017, which expanded the scope
of the original protective order to include materials produced by third parties and the depositions
of all witnesses. 2 (Dkt. 320.) To expedite the discovery process, the parties essentially agreed,
among other things, that they would keep the documents produced by third parties confidential
without requiring the third party to establish good cause on a document-by-document basis. Each
party reserved the right to challenge a confidentiality designation. (Id. at ¶ 9.)
The Protective Order prescribes that Confidential Information, as that term is defined,
“shall not be used or disclosed by the parties, counsel for the parties or any other persons . . . for
any purpose whatsoever other than this litigation . . . .” (Id. at ¶ 5(a).) It specifically contemplates
how confidential information should be treated following the termination of the case: “Unless
otherwise agreed or ordered, this Order shall remain in force for all parties after dismissal of any
party for any reason or entry of final judgment not subject to further appeal.” (Id. at ¶ 14(a).)
Additionally, the Protective Order provides that it “shall be subject to modification by the Court

During the hearing on the proposed modifications to the protective order, counsel for Ciolino indicated her intention
to seek judicial intervention regarding the confidentiality designation of a memorandum produced by the CCSAO. (65-17 Hearing Transcript, at p. 16:6–25.) As to the provision concerning the confidentiality of depositions, counsel for
Ciolino stated that she would “prefer that all the depositions be made available to everybody everywhere . . . but I
don’t really have much of a dog in this fight and I would defer to my co-counsel.” (Id. at p. 20:15–21.) No further
objections were lodged by any party to the modifications of the protective order.
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on its own initiative or on motion of a party or any other person with standing concerning the
subject matter.” (Id. at ¶ 15.)
During the litigation, the CCSAO, a non-party, produced documents pursuant to
subpoenas. Among other documents, the CCSAO produced a July 22, 2014 memorandum
(“CCSAO Memo”) from two former Assistant State’s Attorneys to Anita Alvarez (former State’s
Attorney) and Dan Kirk (former First Assistant State’s Attorney) regarding the findings of the
Conviction Integrity Unit’s investigation into Alstory Simon’s conviction. (Dkt. 441 at p. 3.) The
CCSAO designated the memo as confidential as allowed for by the Protective Order. On June 7,
2017, Ciolino moved to de-designate the CCSAO Memo so that it could be used to support
Ciolino’s lawsuit against Anita Alvarez and others in state court. (Dkt. 313.) This Court denied
Ciolino’s motion without prejudice, finding that Ciolino did not require the CCSAO Memo to file
an adequate complaint in state court, but left open the possibility that Ciolino could renew his
motion if the judge challenged the factual sufficiency of Ciolino’s pleadings. (Dkt. 350; 361 at p.
7:6–8:17.) To the Court’s knowledge, the state court matter has progressed well beyond the
pleading stage. Ciolino did not seek any further judicial intervention concerning the Protective
Order until the instant motion. Additionally, Anita Alvarez sat for a deposition, which was video
and audio recorded. (Dkt. 441 at pp. 9–10.) Ciolino seeks release of these discovery materials as
well. (Dkt. 426.)
Discussion
The Court denies Ciolino’s motion based on the posture of the litigation, the language of
the Protective Order, and the well-established principle that “pretrial discovery, unlike the trial
itself, is usually conducted in private.” Citizens First Nat’l Bank of Princeton v. Cincinnati Ins.

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Co., 178 F.3d 943, 944 (7th Cir. 1999). 3 As noted above, this case has been resolved. Accordingly,
the question of good cause related to information designated as confidential is moot. See, e.g.,
Jude v. City of Milwaukee, No. 06-C-1101, 2012 WL 3000401, at *1 (E.D. Wisc. July 23, 2012)
(finding that after the parties reached a settlement, “the question of whether there was good cause
for keeping the unfiled discovery materials confidential is moot”). Throughout the litigation,
Ciolino had the opportunity to challenge designated confidentiality markings, and in fact availed
himself of that opportunity with respect to the CCSAO Memo. Now that the litigation has ended,
however, there is a much more limited issue of whether the Protective Order has “interfer[ed] with
a party’s right to use the discovery materials.” Id.
Before the Court addresses the parties’ respective arguments at a more granular level, there
are several broader issues that the Court believes should be addressed. First, several of the
objecting parties assert that Ciolino’s motion is untimely because this matter has been resolved.
(Dkt. 438 at p. 3; Dkt. 439 at p. 2.) The Protective Order, by its terms, continues in effect after the
case has been closed. (Dkt. 320 at ¶ 14(a), ¶ 17.) Ciolino filed the instant motion four days after
Judge Dow dismissed Ciolino from the case. (Dkt. 424, 426.) There is no suggestion that the four-

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The Court notes that there are cases that hold “pretrial discovery must take place in the public unless compelling
reasons exist for denying the public access to the proceedings. See, e.g., AT&T v. Grady, 594 F.2d 594, 596 (7th Cir.
1978). More recent precedent directs that there is a significant difference between discovery materials in general and
discovery materials that are filed with the court. See Bond v. Utreras, 585 F.3d 1061, 1073 (7th Cir. 2009) (“[t]o the
extent that [the concept of ‘a presumption’ of public access to discovery materials] suggests the existence of a general
public right to access the materials that litigating parties exchange in response to discovery requests, it sweeps too
broadly. . . . [W]hile the public has a presumptive right to access discovery materials that are filed with the court, used
in a judicial proceeding, or otherwise constitute ‘judicial records,’ the same is not true of materials produced during
discovery but not filed with the court.”) Relying on Bond, the Court believes that there is not a general right to share
with the public discovery materials that are exchanged between the parties during the discovery process. The public’s
right to discovery materials markedly changes, however, when the materials gathered during the discovery process
are presented to the court and relied upon by the Court in its decision-making process. See id. at 1073 (“Generally
speaking, the public has no constitutional, statutory (rule-based), or common-law right of access
to unfiled discovery.”) (emphasis in original).

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day “delay” is unreasonable or impacts an affected party’s substantive rights. 4 Thus, the Court
finds Ciolino’s motion timely.
That said, the entire protective order remains in place. Ciolino, however, has ignored
procedural obligations required to be followed prior to filing the instant motion. In particular, the
Protective Order requires a meet and confer process prior to seeking judicial intervention. (Dkt.
320 at ¶ 9.) While counsel for Ciolino includes a declaration as to her contacts with counsel, the
Protective Order requires more. (Id. at ¶ 9(a) (requiring an actual conference among those
impacted by the contested designation, as well as an actual exchange between the affected parties
explaining their respective positions)). Ciolino has failed to meet these requirements. The Court
could deny the motion on this procedural ground alone. But in the interest of final resolution, the
Court has chosen to resolve the motion on the merits.
Next, the parties assert differing positions on whose burden it is to establish that a document
should remain protected under the Protective Order. Compare Dkt. 441 at p. 2 (CCSAO arguing
that “Ciolino has not provided good cause to lift the confidential designation”) with Dkt. 442 at p.
3 (Ciolino arguing that the “CCSA fails to understand that it bears the burden of showing good
cause”). While Ciolino is correct that during the pendency of litigation, the party seeking to
maintain confidentiality bears the burden of establishing good cause that the material in question
is subject to protection, (see Dkt. 320 at ¶ 9(b) (“[t]he burden of persuasion in any such challenge
proceeding shall be on the designating party”)), the Court’s standard protective order is not

Defendant Northwestern University and Plaintiff Simon suggest that Ciolino “had the opportunity during the
pendency of the litigation to challenge the designation of any documents as confidential.” (Dkt. 438 at p. 3) (emphasis
added). To the extent that Northwestern and Simon argue that Ciolino’s motion to de-designate must have been
brought during the pendency of the lawsuit, the Court respectfully disagrees. While some delays in pursuing relief
under a protective order may be so lengthy that a Court could consider the relief sought untimely, a four-day delay
under the circumstances here seems consistent with the spirit of the Protective Order.

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intended to undermine Seventh Circuit caselaw addressing the confidentiality of materials
produced during the discovery process that are not part of the judicial record.
As the Seventh Circuit has made clear, a distinction must be drawn “between materials
generated by pretrial discovery and materials that are in the public record because they form part
of the judicial decision-making process.” Hobley v. Chi. Police Commander Burge, 225 F.R.D.
221, 224 (N.D. Ill. 2004). In general, “[s]ecrecy is fine at the discovery stage, before the material
enters the judicial record.” Baxter Int’l, Inc. v. Abbott Labs., 297 F.3d 544, 545 (7th Cir. 2002);
see also Seattle Times Co. v. Rhinehart, 467 U.S. 20, 33 (1984) (noting that “restraints placed on
discovered, but not yet admitted, information are not a restriction on a traditionally public source
of information”). The materials, however, that “influence or underpin the judicial decision are
open to public inspection unless they meet the definition of trade secrets or other categories of
bona fide long-term confidentiality.” Baxter Intl., Inc., 297 F.3d at 545. Indeed, both the Federal
Rules and the Local Rules of the Northern District of Illinois prohibit the filing of discovery
materials as part of the public docket except when the materials are used as evidence in connection
with a hearing or motion or if the court orders filing. Fed. R. Civ. P. 5(d)(1); N.D. Ill. L.R. 26.3.
Because this matter was resolved short of trial, and without any court rulings addressing the factual
merits of the underlying complaint, none of the documents that Ciolino now seeks to de-designate
“influence[d] or underpin[ned] a judicial decision.” 5 Baxter Intl., Inc., 297 F.3d at 545.
Thus, while Ciolino is correct that during the course of litigation the party seeking to
maintain the confidentiality of particular material has the burden of persuasion, controlling judicial
precedent regarding discovery practices in general is not ignored or overwritten. As the case has
been resolved without any judicial resolution as to its factual merits, the discovery material covered
The Court addresses, infra, Ciolino’s argument that the Court’s resolution of the initial production of the CCSAO
Memo brings the document within the ambit of influencing or underpinning a judicial decision.

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by the Protective Order is still governed by the general principle that discovery materials produced
during litigation are generally entitled to secrecy until those materials become part of the judicial
record. 6
One final observation is also appropriate. This matter was resolved through a settlement
between the Plaintiff and Defendants Northwestern University and Protess. The terms of the
settlement are confidential, and the settling parties handled the settlement process on their own,
without utilizing mediation services of the Court. After securing a settlement with Northwestern
and Protess, Plaintiff voluntarily dismissed Ciolino. In short, the Court was not substantively
involved at all in the ultimate resolution of this matter. One advantage of settling a matter (as
opposed to more fully litigating the matter) is that public disclosure of information related to the
merits of the case can be avoided. This is an indisputable benefit of settlement, the value of which
is often dependent on the public’s interest in the case. Indeed, parties often settle a case because
the parties would prefer not to “air their dirty laundry.” To allow disclosure of discovery materials
that were never presented to a court for substantive purposes (i.e. to resolve the substance of the
claims), would eliminate one of the benefits of settlements in the first instance. While Ciolino
makes a strong argument that there is a significant public interest in this matter, Ciolino does not
identify any case (nor is the Court aware of any) that allows public interest to trump the general
principles governing disclosure of discovery materials.
Depositions
In the Protective Order, the parties agreed to treat all depositions as confidential. See Dkt.
320 at ¶ 4 (“The deposition of any and all witnesses taken in this case . . . shall be treated as

Even if the parties had litigated, for example, a motion for summary judgment, the proper course to assess continued
confidentiality would be to determine whether the particular documents in question influenced the Court’s summary
judgment decision.
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Confidential Information and protected under the terms of this Order, unless otherwise ordered by
the Court.”) Additionally, courts are clear that there is no presumption of public access to
depositions. See, e.g., Hobley v. Chi. Police Commander Burge, 225 F.R.D. 221, 224 (N.D. Ill.
2004) (noting that “deposition discovery materials are not ‘judicial documents’ because they play
no role in the performance of Article III functions, therefore, there is no presumption of public
access to them”).
Removing the confidentiality designations from almost every deposition taken in this case
would be contrary to the express language of the Protective Order and frustrate the reasonable
expectation of privacy that the deponents had when they gave their testimony. The depositions
are not a part of the public record and, importantly, have never been used for any purpose in the
litigation. The need for continued protection is particularly evident with respect to the deposition
of Anita Alvarez, a high-profile public figure. As argued by the CCSAO and supported by
caselaw, videotaped depositions “‘are subject to a higher degree of potential abuse than
transcripts.’” Shultz v. Dart, No. 13 C 3641, 2015 WL 4934552, at *3 (N.D. Ill. Aug. 18, 2015).
The CCSAO has raised a genuine concern about the potential misuse of the deposition in the public
sphere and established good cause to preserve the confidentiality designation of Alvarez’s
deposition transcript and video. Accordingly, lifting the Protective Order as to almost every
deposition taken in this case would be inappropriate.
Documents Produced by the Cook County State’s Attorney’s Office
Ciolino also requests that the Court lift the Protective Order as to all documents produced
by the CCSAO. In addressing this portion of Ciolino’s motion, the Court is mindful that the
CCSAO was a non-party to the now terminated litigation and its position must therefore be
uniquely considered. See, e.g., Papst Licensing GmbH & Co. KG v. Apple, Inc., No. 17 C 1853,

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2017 WL 1233047, at *3 (N.D. Ill. Apr. 4, 2017) (noting that "concern for the unwanted burden
thrust upon non-parties is a factor entitled to special weight").
Ciolino focuses particularly on the CCSAO Memo prepared for Anita Alvarez to address
the findings of the Conviction Integrity Unit’s investigation into Simon’s conviction. Among other
arguments, Ciolino contests that because the CCSAO Memo “forms the basis of the court’s
decision that was entered on judicial record,” (referring to the Court’s denial of Ciolino’s motion
to de-designate the CCSAO Memo), it should be available to the public. (Dkt. 426 at p. 4.)
Specifically, the Court order upon which Ciolino relies was a decision related to the production of
the document. The CCSAO claimed that the document was privileged and should not be subject
to production, relying on the deliberative process privilege. In a detailed order, this Court directed
the CCSAO to produce the document. (Dkt. 284.) The implications of Ciolino’s argument would
lead to an absurd result. If a party responding to discovery asserts a privilege, which is then
litigated, a court’s finding that the document is not privileged and thus must be produced in
discovery would ipso facto mean the document would also be subject to public disclosure. In other
words, adopting Ciolino’s argument would mean that the unsuccessful assertion of privilege itself
would waive any protection as to public disclosure of the document. Here, neither Ciolino’s
motion nor the Court’s ruling on the motion had any connection to the merits of the case. 7
Therefore, the Court’s ruling on the discoverability of the CCSAO Memo does not render the
document subject to public disclosure.
In addition, Ciolino contests that because the CCSAO Memo has already appeared in the
public domain (pointing to two articles published in the Chicago Tribune) it may no longer be
designated as confidential. The Court disagrees. The Court does not know how reporters at the
Had this matter proceeded to summary judgment and the District Judge relied on the CCSAO Memo in reaching
his conclusion, the Court and the parties would be in a much different position with respect to the CCSAO Memo.

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Chicago Tribune gained access to the CCSAO Memo. The timing of the Tribune’s disclosure of
the CCSAO Memo relative to the litigation history in the instant case certainly raises suspicions.
However, a strong and independent press is an important part of our country’s democracy. If the
CCSAO Memo was forwarded to members of the press in violation of the Protective Order, a
previous violation of the Protective Order may not serve as the basis for abandoning the protections
of the Protective Order and disregarding the proper application of the law in this area.
Ciolino further argues that because the CCSAO Memo should, according to Ciolino, be
available to the public under the Illinois Freedom of Information Act, the document is not entitled
to protection. To the extent Ciolino is correct, he may test his theory by filing a FOIA request and
pursing the matter further in state court.
As to the balance of the CCSAO materials produced, the Court relies on its stated reasoning
that documents produced in the discovery process do not become generally available to the public
unless they “influence or underpin [a] judicial decision.” Baxter Intl., Inc., 297 F.3d at 545.
Therefore, these materials shall also be subject to continued protection from public disclosure.
Resolution of the Litigation
The Court recognizes the significance of this litigation to the public but notes again that
the matter was largely resolved through a settlement agreement. Accordingly, any material
designated as confidential did not affect the judicial disposition of the matter as the case was not
resolved on the merits. Moreover, while the Court cannot state for certain, it expects that the
parties placed reliance on the Protective Order and the judicial assurance of confidentiality in
reaching the settlement. Granting Ciolino’s requested relief would disturb the finality of the matter
and the parties’ reasonable expectations of privacy. Ciolino may choose to seek much of the same
information sought here in his pending state court case and address any resulting confidentiality

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concerns in that forum. Finality of the matter in federal court and principles of comity as to the
state court proceeding strongly counsel that this Court should not de-designate the discovery
materials produced in the instant case.
Conclusion
For the reasons set forth above, the Court denies Defendant Ciolino’s motion to lift
protective order (in part) and unseal selected filings [426].
SO ORDERED.

ENTERED: November 15, 2018

________________________________
M. David Weisman
United States Magistrate Judge

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