Gomez v. City of Chicago

Filing 34

MEMORANDUM Opinion and Order: For these reasons, the Court grants the City's motion for a protective order 27 in part and denies it in part. The City should make the change identified above by the Court and resubmit the revised confidentiality order, following the procedure outlined on the Court's website for proposed orders. Signed by the Honorable Thomas M. Durkin on 11/17/2017:Mailed notice(srn, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
RICARDO GOMEZ,
Plaintiff,
v.
CITY OF CHICAGO,
Defendant.

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No. 16 C 7743
Judge Thomas M. Durkin

MEMORANDUM OPINION & ORDER
Plaintiff Ricardo Gomez alleges in this Title VII case that he was subjected to
a hostile work environment on account of his ethnicity and national origin during
his employment as a firefighter with defendant the City of Chicago. The City has
filed a contested motion for entry of a confidentiality order governing discovery (R.
27) and submitted a proposed confidentiality order (R. 27-1). For the reasons
explained below, the Court grants the City’s motion in part and denies it in part.
Gomez has requested in discovery the findings and reports of the City’s
investigation into a complaint he submitted with the City’s Department of Human
Resources and any resulting disciplinary records. The City seeks “to have the
documents related to the internal investigations by both the Equal Employment
Opportunity Division of the City of Chicago and Internal Affairs” Division of the
Chicago Fire Department “designated as ‘Confidential’” and to “have disciplinary
records of non-parties . . . be kept confidential as well.” R. 32 at 1.

Gomez objects to these designations. Specifically, he takes issue with the
following two subparts of paragraph 2 of the City’s proposed confidentiality order:
“As used in this Order, ‘Confidential Information’ means information designated as
‘CONFIDENTIAL’ by the producing party that falls within one or more of the
following categories: . . . (g) personnel or employment records, including but not
limited to disciplinary records, of a person who is not party to the case or (h)
documents from any internal employer investigation into employee complaints.” R.
27-1 at 1-2. Gomez also takes issue with paragraph 11 of the proposed
confidentiality order, which provides procedures for the Court to decide how
“Confidential Information” is to be treated during a later trial or hearing. Id. at 7.
Federal Rule of Civil Procedure 26(c)(1) permits the Court, “for good cause,
[to] issue an order to protect a party or person from annoyance, embarrassment,
oppression, or undue burden or expense” that might arise during discovery. “Rule
26(c) allows a court to shield certain documents from the public when there is good
cause to do so.” Bond v. Utreras, 585 F.3d 1061, 1074 (7th Cir. 2009). The rule
“confers broad discretion on the trial court to decide when a protective order is
appropriate and what degree of protection is required.” Gordon v. Countryside
Nursing & Rehab. Ctr., LLC, 2012 WL 2905607, at *2 (N.D. Ill. July 16, 2012). “The
moving party bears the burden of showing good cause for a protective order. In
determining whether there is good cause for a protective order, the court must
balance the harm to the party seeking the protective order against the importance
of public disclosure.” Sokol v. City of Chicago, 2014 WL 5473050, at *1 (N.D. Ill. Oct.

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29, 2014) (internal citations omitted); accord Jacobs v. City of Chicago, 2015 WL
231792, at *2 (N.D. Ill. Jan. 16, 2015); Lane v. Salgado, 2014 WL 889306, at *2
(N.D. Ill. Mar. 5, 2014).
As an initial matter, the Court considers the extent to which the records the
City seeks to designate as confidential should be treated analogously to complaint
register files (“CR files”) “generated by police oversight agencies’ investigations of
citizen complaints of alleged police misconduct.” See Fraternal Order of Police,
Chicago Lodge No. 7 v. City of Chicago, 2016 IL App (1st) 143884, ¶ 1, appeal
denied sub nom. Fraternal Order of Police v. Chicago Police Sergeants Ass’n, 60
N.E.3d 872 (Ill. 2016). “Courts in this district have frequently grappled with
whether confidentiality orders should define CR files as confidential with varying
results.” Jacobs, 2015 WL 231792, at *1 (collecting cases).
Gomez relies on cases addressing CR files to support his argument against
the disputed confidentiality order provisions. The City disagrees that the records at
issue are analogous to CR files. It maintains that the unique public interest
considerations that apply to “investigations of police misconduct initiated by public
complaints” in CR files are lacking in the context of “work environment allegations”
or “discipline imposed for conduct of a coworker for allegations against an employee
personally.” R. 32 at 3.
At least to the extent the Court can discern the contents of the records in
question based on the generalized descriptions in the proposed confidentiality order,
the Court agrees that they implicate different privacy considerations than CR files.

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This is evidenced by the fact that Illinois courts have explicitly distinguished CR
files from the types of records at issue here in the course of determining that CR
files are subject to disclosure under the Illinois Freedom of Information Act
(“IFOIA”).1 The Illinois Appellate Court in Kalven v. City of Chicago, distinguished
investigations into CRs based on a complaint against a police officer filed by a
public citizen from “adjudications of either an employee grievance or disciplinary
case.” 2014 IL App (1st) 121846, ¶ 14. The Kalven court explained that a CR does
not deal with an employee grievance (id.) or “initiate [any] adjudication, nor can
CRs themselves be considered disciplinary.” Id. ¶ 20. On that basis, the Kalven
court held that the IFOIA provision exempting “‘[r]ecords relating to a public body’s
adjudication of employee grievances or disciplinary cases’” did not apply to CRs. Id.
¶¶ 14-32 (quoting 5 ILCS 140/1(7)(1)(n)). Unlike CR files, the “(g) . . . disciplinary
records, of a person who is not party to the case or (h) documents from any internal
employer investigation into employee complaints” (R. 27-1 at 1) that the City seeks
to designate as confidential—to the extent they relate to an “adjudication” within
the meaning of IFOIA—appear to fall within the IFOIA exemption addressed in
Kalven and thus to be subject to different privacy considerations.
The City’s proposed confidentiality order also seeks to designate as
confidential “personnel . . . records” more generally. R 27-1 at 2. The Illinois
Appellate Court has distinguished CR files from personnel files in several recent
“IFOIA does not control this court’s determination of whether ‘good cause’ has
been shown” to enter a protective order. Calhoun v. City of Chicago, 273 F.R.D. 421,
423 (N.D. Ill. 2011). But it can be “helpful in making that determination.” Jacobs,
2015 WL 231792, at *1 (citations omitted).
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cases, explaining “that CR files are not personnel files in any sense because they
pertain to the ‘initiation, investigation, and resolution of complaints of misconduct
made by the public against police officers.’” Fraternal Order of Police, 2016 IL App
(1st) 143884, ¶ 50 (quoting Watkins v. McCarthy, 2012 IL App (1st) 100632, ¶ 20).
The Watkins court therefore held that an exemption for personnel files in the prior
version of IFOIA and provisions in Illinois’ Personnel Record Review Act prohibiting
disclosure of certain personnel records did not apply to CR files. 2012 IL App (1st)
100632, ¶¶ 19-20, 40-43. Because Illinois law differentiates between CR files and
the types of records the City’s proposed confidentiality order seeks to protect, the
cases addressing CR files on which Gomez relies are of limited applicability here.
In any event, even if certain or all of the records at issue were analogous to
CR files and subject to disclosure under IFOIA, that would not mean that the public
should be able to access them during discovery in this case as Gomez argues. The
Seventh Circuit in Bond determined that an intervenor did not have third-party
standing to access CR files produced in discovery and designated as confidential
pursuant to a protective order. 585 F.3d at 1073-78. Notably, the Seventh Circuit’s
holding did not prevent the intervenor from ultimately accessing CR files through
IFOIA. Indeed, the same intervenor later brought the Kalven state court action in
which Illinois Appellate Court held that CR files are not exempt from disclosure
under IFOIA. 2014 IL App (1st) 121846, ¶ 22; see also id. ¶ 30 (explaining that the
“protective order in Bond” had no “bearing on defendants’ duty to disclose . . .
pursuant to a FOIA request”).

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The Seventh Circuit made clear in Bond that “[t]here are good reasons to
treat the public’s right to access filed and unfiled discovery materials differently.”
585 F.3d at 1074. As the Supreme Court has explained, “[m]uch of the information
that surfaces during pretrial discovery may be unrelated, or only tangentially
related, to the underlying cause of action.” Seattle Times Co. v. Rhinehart, 467 U.S.
20, 33 (1984). And there is a “substantial interest” in ensuring that the discovery
process is not “abuse[d]” such that it causes “damag[e] to reputation.” Id. at 35
(quotation marks omitted). Thus, “[s]ecrecy is fine at the discovery stage, before the
material enters the judicial record.” Bond, 585 F.3d at 1075 (quotation marks
omitted). “The rights of the public kick in when material produced during discovery
is filed with the court.” Bond, 585 F.3d at 1075; accord City of Greenville, Ill. v.
Syngenta Crop Prot., LLC, 764 F.3d 695, 697 (7th Cir. 2014).
The question at this stage of the litigation is “whether the potential harm” to
the individuals whose files are at issue “outweighs ‘the importance of disclosure to
the public’” of discovery materials. Lane, 2014 WL 889306, at *2 (quoting Wiggins v.
Burge, 173 F.R.D. 226, 229 (N.D. Ill. 1997)). In support of its argument that the
potential for harm is significant, the City cites its Diversity and Equal Employment
Opportunity Policy, which provides that “[a]ll complaints and investigations will be
kept confidential, to the extent possible . . . . In order to maintain confidentiality,
the EEO Division may limit the distribution of the Investigation Report and the
Investigative file.” R. 32, Ex. A. The City explains that it has a substantial interest
in “protect[ing] its investigation files to maintain the integrity of the investigation

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and encourage complainant-employees and witnesses to be forthcoming,” and
further that “public disclosure of disciplinary documents of non-parties could cause
embarrassment.” R. 32 at 5.
For purposes of the discovery stage of this litigation, the Court finds that the
significant privacy interests identified by the City outweigh the generalized public
interest asserted by Gomez in “enabl[ing] the people to fulfill their duties of
discussing public issues . . . making informed judgments and monitoring
government” (R. 31 at 6). As this Court explained when reaching a similar
conclusion in Lane:
This does not mean that [Gomez] will not have the opportunity to
publicly file and thereby publicize information [in the files] at an
appropriate time in the course of this litigation. On summary
judgment or at trial, the Court will be required to address any evidence
that is relevant to [Gomez’s] claims, and in that context, [Gomez] may
be permitted to expose that evidence to public scrutiny. Evidence that
is necessarily part of the decision-making process almost always
should be available to the public in order for the public to understand
why a court or jury made a decision.
2014 WL 889306, at *2; Wrice v. Burge, 2016 WL 6962838, at *11 (N.D. Ill. Nov. 29,
2016) (same). If Gomez “believes public disclosure” of the files at issue “is necessary
to the prosecution of his case, he should set forth why and seek leave before publicly
filing any information contained in [those] files.” See Lane, 2014 WL 889306, at *2.2

Paragraph 11 of the proposed confidentiality order, with which Gomez takes
issue, sets forth an appropriate procedure for reassessing the confidentiality
designations of any documents that a party seeks to introduce at a trial or hearing.
It provides: “Nothing in this Order shall be construed to affect the use of any
document, material, or information at any trial or hearing. A party that intends to
present or that anticipates that another party may present Confidential
Information at a hearing or trial shall bring that issue to the Court’s and parties’
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In camera review by this Court of the specific documents in question might be
appropriate at that time. See Watkins, 2012 IL App (1st) 100632, ¶¶ 45-47
(remanding for in camera review of files in question to determine whether they
should be made public under IFOIA). For discovery purposes, the Court finds that
the City’s confidentiality definitions are generally appropriate. See City of
Greenville, 764 F.3d at 697 (“Requiring judges to vet every document” produced
during discovery that is arguably confidential “would needlessly increase the
district courts’ workload”).
The Court does, however, deny the City’s motion and modify its proposed
confidentiality order in one respect. Gomez correctly argues that “[t]he final
outcome of cases in which discipline is imposed” is plainly not entitled to privacy
protection under Illinois law. R. 31 at 6; see also 5 ILCS 140/1(7)(1)(c) (“the final
outcome of cases in which discipline is imposed” are not exempt); Fraternal Order of
Police, 2016 IL App (1st) 143884, ¶ 53 (same). The Court therefore modifies
paragraph 2 of the proposed confidentiality order to include the following sentence
at the end: “The final outcome of any adjudication of a complaint in which discipline
was imposed may not be designated as Confidential Information.”
Conclusion
For these reasons, the Court grants the City’s motion (R. 27) in part and
denies it in part. The City should make the change identified above by the Court

attention by motion for in a pretrial memorandum without disclosing the
Confidential Information. The Court may thereafter make such orders as are
necessary to govern the use of such documents or information at trial.” R. 27-1 at 7.
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and re-submit the revised confidentiality order, following the procedure outlined on
the Court’s website for proposed orders.

ENTERED:

Honorable Thomas M. Durkin
United States District Judge

Dated: November 17, 2017

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