Rodriguez v. The City of Chicago, et al

Filing 135

MEMORANDUM Opinion and Order Signed by the Honorable Young B. Kim on 2/6/2019. (ma,)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
VENUS RODRIGUEZ,
Plaintiff,
v.
THE CITY OF CHICAGO, et al,
Defendants.

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No. 17 CV 7248
Magistrate Judge Young B. Kim
February 6, 2019

MEMORANDUM OPINION and ORDER
Before the court is Plaintiff Venus Rodriguez’s motion to compel Defendant
City of Chicago (“the City”) to produce documents it has withheld from discovery
based on its assertions that they are protected by the deliberative process and
investigatory privileges. For the following reasons, the motion is granted in part
and denied in part:
Background
Rodriguez is a Chicago Police officer who alleges that on October 6, 2015, an
unknown, off-duty member of the Chicago Police Department (“CPD”) and his
companion physically assaulted her at a bar she was patronizing with a friend while
off-duty. Rodriguez alleges that when members of the CPD arrived at the bar in
response to the assault, she asked to press charges against her assailants and
requested medical assistance. According to her complaint, when the responding
officers learned that her assailant was an off-duty police officer they refused her
medical care and left the scene without investigating the assault. Rodriguez alleges

that when she complained to CPD’s Internal Affairs and the Independent Police
Review Authority (“IPRA”) about the lack of an investigation, she was retaliated
against for breaking what she alleges is a CPD “code of silence” discouraging
officers from exposing a fellow officer’s misconduct. Specifically, she alleges that
IPRA retaliated against her by accusing her of making a false police report about
the altercation and by investigating her instead of her assailants. Rodriguez has
sued the City and several individual CPD officers under Monell v. Department of
Social Services of the City of New York, 436 U.S. 658 (1978), alleging that the City
has a de facto policy, practice, or custom of failing to investigate officer misconduct
pursuant to its “code of silence.”

She also claims that Defendants conspired to

violate her constitutional rights by refusing to investigate her assailant and by
launching an IPRA investigation against her instead.
Discovery is currently underway. Rodriguez has issued to the City requests
to produce information about the City’s alleged decision to make her the target of an
IPRA investigation. In particular, Rodriguez seeks information related to IPRA Log
file #1077459, which is the IPRA file associated with the investigation into her
complaint against the unidentified CPD officer who assaulted her.

During

discovery Defendants produced the entire investigatory file for Log file #1077459,
but the City’s Civilian Office of Police Accountability (“COPA”)—the City agency
which has since replaced IPRA—has withheld 34 emails related to that file on the
basis of the deliberative process and investigatory privileges. (R. 117, Defs.’ Resp.
at 2 & Ex. A, Hearts-Glass Decl. ¶¶ 5-7.)

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On October 15, 2018, Defendants

produced a privilege log outlining its assertions with respect to the withheld emails.
(R. 110, Pl.’s Mot. at 5 & Ex. B.) Rodriguez challenges the City’s privilege assertion.
The court reviewed the subject emails in camera.
Analysis
Rodriguez argues that the deliberative process and investigatory privileges
do not apply here, and further asserts that even if they did, her particularized need
for disclosure overrides the City’s interest in preventing the information’s
disclosure.

The withheld information consists of two categories of documents:

(1) emails attaching drafts of final summary reports written in the course of
developing COPA’s finding with respect to Log file #1077459; and (2) emails among
COPA employees involved in the investigation underlying Log file #1077459.
Federal Rule of Civil Procedure 26 allows discovery of “any nonprivileged matter
that is relevant to any party’s claim or defense and proportional to the needs of the
case,” and the information need not be admissible to be discoverable. Fed. R. Civ. P.
26(b)(1).

Because Rodriguez’s claims arise primarily under federal law, federal

common law governs the City’s privilege assertions. See Evans v. City of Chi., 231
F.R.D. 302, 319 (N.D. Ill. 2005).
A.

Deliberative Process Privilege
The

federal

common

law

deliberative

process

privilege

protects

communications that are part of a government agency’s decision-making process so
long as those communications are both “pre-decisional” and “deliberative.” United
States v. Farley, 11 F.3d 1385, 1389 (7th Cir. 1993). The privilege is designed to

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encourage the “frank discussion of legal and policy matters” related to agency
decisions, id. at 1389, and to “protect the quality of the flow of ideas within a
government agency” by allowing subordinates to give decision-makers their
“uninhibited opinions and recommendations,” K.L., L.F. & R.B. v. Edgar, 964 F.
Supp. 1206, 1208 (N.D. Ill. 1997) (quotations and citations omitted). Although the
privilege protects broad-based policy decisions made by government agencies, it also
attaches to more individualized decision-making, such as the summary reports and
discussions that are part of the process of formulating an official position with
respect to internal investigations of police officer conduct.

See Holmes v.

Hernandez, 221 F. Supp. 3d 1011, 1017-18 (N.D. Ill. 2016).
Courts apply a two-part test in evaluating claims of the deliberative process
privilege. Ferrell v. U.S. Dep’t of Hous. & Urban Dev., 177 F.R.D. 425, 428 (N.D. Ill.
1998). First, the court asks whether the party asserting the privilege has shown
that the privilege applies to the documents it seeks to protect. Edgar, 964 F. Supp.
at 1209. In the first step, to make out a prima facie case that the privilege should
apply, the City must make sure that three things happen:
(1) the department head with control over the matter must make a
formal claim of privilege, after personal consideration of the problem;
(2) the responsible official must demonstrate, typically by affidavit,
precise and certain reasons for preserving the confidentiality of the
documents in question; and (3) the official must specifically identify
and describe the documents.
See id. If the City makes that showing, then in the second step the court asks
whether the moving party has shown a particularized need for the withheld
information. Ferrell, 177 F.R.D. at 428.

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In support of its assertion of the deliberative process privilege, the City has
submitted a privilege log describing the withheld emails, along with a declaration
from Angela Hearts-Glass, who is COPA’s Deputy Chief Administrator-Chief
Investigator.1 (R. 117, Defs.’ Resp. Ex. A.) In her declaration Hearts-Glass makes a
formal claim of privilege, states that she personally considered the need to maintain
the confidentiality of the withheld emails, and provides a brief description along
with the bates numbers of the emails. (Id. ¶¶ 7-11.) She also asserts that the
withheld emails convey deliberations and impressions discussed in the context of
investigative strategies related to Log file #1077459. She further asserts that the
withheld summary reports must be shielded to avoid “exposing COPA investigators
to criticism based on edits and recommendations for additional work made by a
supervisor,” and that compelling the City to reveal those deliberations would have a
chilling effect on frank discussions among COPA investigators. (Id. ¶ 12(b), (c).)
Similar declarations have been found sufficient to meet the procedural
requirements for asserting the deliberative process privilege in this district. See
Holmes, 221 F. Supp. 3d at 1016-17; Turner v. City of Chi., 15 CV 06741, 2017 WL
552876, at *3 (N.D. Ill. Feb. 10, 2017).
Upon in camera review of the withheld emails, however, the court finds that
Hearts-Glass’s assertions are not borne out with respect to all of the emails. Many
of those emails are devoid of any recommendations, suggestions, or opinions that
The fact that the City first provided the declaration as an attachment to its
response to the motion and did not initially attach it to the privilege log is not a
barrier to its privilege assertions. See Guzman v. City of Chi., No. 09 CV 7570, 2011
WL 55979, at *2 (N.D. Ill. Jan. 7, 2011).
1

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could be framed as being “deliberative” concerning COPA Log file #1077459.
Instead, several of the emails convey merely factual information that are devoid of
any subjective commentary. The deliberative process privilege does not apply to
purely factual information unless it is “inextricably intertwined” with deliberations,
Enviro Tech Int’l, Inc. v. U.S. E.P.A., 371 F.3d 370, 374-75 (7th Cir. 2004), and with
respect to many of the emails the City has withheld, it is not obvious that the facts
conveyed are enmeshed with any intra-agency deliberations. Accordingly, the court
finds that the City has not properly asserted the deliberative process privilege with
respect to the 12 emails identified as bates numbers ending with the last four digits
0761-0764, 0848-0851, 6250-6252, and 6699.

With respect to the remaining 22

emails, because Hearts-Glass’s assertions that they reflect at least some level of
recommendations or strategy decisions are borne out by this court’s in camera
review, the court finds that the City has properly invoked the deliberative process
privilege as to these emails.

See Edgar, 964 F. Supp. at 1210 (compelling the

production of purely factual information while protecting information reflecting
“advisory opinions, recommendations, projections, proposals, and/or deliberations
that constitute parts of governmental decision- and policy-making processes”).
Turning to the second step of the analysis, the court must determine whether
Rodriguez has shown that her need to review the 22 emails to which the privilege
attaches outweighs the privacy interests the City has identified here. In weighing
whether Rodriguez has a particularized need that overrides the privilege, the court
considers the following factors:

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(1) the relevance of the documents to the litigation; (2) the availability
of other evidence that would serve the same purpose; (3) the
government’s role in this litigation; (4) the seriousness of the litigation
and the issues involved; and (5) the degree to which the disclosure of
the document sought would tend to chill future deliberations within
government agencies.
See Bahena v. City of Chi., No. 17 CV 8532, 2018 WL 2905747, at *4 (N.D. Ill. June
11, 2018). Rodriguez argues that she has a particularized need for the withheld
documents because at the heart of her Monell and retaliation claims are her
allegations that pursuant to a pervasive code of silence, Defendants refused to
investigate her alleged assailant and then retaliated against her by doctoring the
IPRA investigation files to make her the target of the investigation. Based on those
claims she argues that it is crucial for her to access the withheld emails to discover
“how and why Plaintiff was transformed from a battery victim and complainant into
the accused subject of an internal investigation,” and that no other evidence can
illuminate whether IPRA conducted its investigation in furtherance of a retaliatory
intent. (R. 118, Pl.’s Reply at 1.)
Two recent cases from this district shed a particularly helpful light on how to
weigh a plaintiff’s interest in communications underlying an IPRA investigation in
a context where the plaintiff’s claims turn on whether IPRA investigators
intentionally covered up CPD wrongdoing or otherwise acted in furtherance of a
code of silence. In Holmes, 221 F. Supp. 3d at 1014, 1022, the court concluded that
the plaintiff’s particularized need for IPRA’s draft summary reports weighed in
favor of disclosure given her Monell claim alleging that the City’s alleged policy of
failing to properly investigate police misconduct caused her to be the victim of

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excessive force.

In weighing the relevant factors, the court found that it was

“crucial” that an IPRA investigator had come forward to say he had been fired for
refusing to change his recommendations, because that evidence showed that there
was more than “speculation” to support the plaintiff’s claims that the summary
reports were relevant to her Monell theory. Id. at 1019. The court further noted
that “draft summary reports serve a unique evidentiary purpose” in that they can
highlight instances where an IPRA investigator capitulates to a supervisor’s
instruction to change a recommendation to benefit an officer under investigation or
to edit a report to provide artificially stronger justification for an officer’s conduct.
Id. at 1019-20. The court also reasoned that in cases challenging a law enforcement
practice under Monell, the main issue is the deliberative process in which IPRA
engaged, and “draft summary reports are the only documentary evidence of that
process.” Id. at 1021-22. The court emphasized, however, that the seriousness of
the issues in Holmes was supported by the former IPRA investigator’s assertions
that he had in fact been retaliated against for refusing to change his
recommendations in similar cases. Id. at 1023 n.5. The court concluded that these
factors outweighed the danger that the compelled disclosure of the IPRA
communications would have a chilling impact on IPRA deliberations, but to
minimize that impact, it ordered the draft summary reports to be produced under
an “attorneys’ eyes only” designation. Id. at 1023.
In Turner, 2017 WL 552876, at *3, the plaintiff sought production of 118
documents over which the City asserted the deliberative process privilege, arguing

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that she had a particularized need for those documents to support her claim that
IPRA had intentionally covered up the defendant officer’s misconduct pursuant to a
code of silence.

The court rejected the plaintiff’s argument noting that “if this

rationale were accepted by the Court, the privilege would be overcome in any case
in which the government’s intent is called into question, rendering the deliberative
process privilege a nullity in any case with a Monell claim.” Id. The Turner court
distinguished Holmes, noting that without specific evidence supporting the
plaintiff’s theory that an IPRA investigator had been improperly pressured to
change recommendations, the draft summaries and other IPRA communications
were only of “marginal relevance.” Id. at *4. The court reviewed the withheld
emails and found that they did not bear out the plaintiff’s theory that IPRA
investigators had been told to discredit her account of events. Id. The court also
was particularly concerned about the chilling effect production of IPRA’s documents
would have with respect to discussion among IPRA personnel regarding the merits
of an investigation, and therefore refused to find the privilege overcome by the
plaintiff’s need for the documents. Id.
As in Turner, this court finds that on balance the applicable factors weigh
against overriding the assertion of privilege. The first two factors—relevance and
the availability of alternative evidence—weigh against Rodriguez because she has
not pointed to any evidence showing that IPRA changed her status from victim to
assailant with respect to the underlying assault to retaliate against her for breaking
a code of silence. Moreover, the City has already made available to Rodriguez the

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investigative file for Log #1077459, including witness statements and documentary
evidence. See Guzman, 2011 WL 55979, at *4 (declining to order City to produce
IPRA communications relevant to Monell claims where City already produced entire
investigatory file).

This court’s review of the summaries and communications

withheld here does not lend credence to her assertions that she needs this
particular evidence to substantiate her theory that IPRA investigators improperly
manipulated her file. See Turner, 2017 WL 552876, at *4 (declining to override
privilege where “the Court’s review of the summaries and other documents in this
case do not substantiate a theory that evidence is being suppressed or manipulated”
as alleged). Although the City is the central party to Rodriguez’s claims, which on
their face raise serious issues about IPRA’s investigatory process, it is also true that
revealing IPRA’s internal communications simply because Rodriguez alleges IPRA
misconduct would undermine the agency’s ability to engage in free and frank
discussions on the merits of individual investigations. See id. Accordingly, in the
particular circumstances of this case, the court concludes that Rodriguez’s interest
in reviewing the 22 withheld emails to which the deliberative process privilege
properly attaches does not override the City’s interest in maintaining their privacy.
B.

The Investigatory Privilege
Because the court concludes that the deliberative process privilege shields

only 22 of the withheld emails, it must also consider whether the City properly
invokes the investigatory privilege to prevent disclosure of the 12 emails not
protected. The investigatory privilege specifically protects “civil as well as criminal

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law enforcement investigatory files from civil discovery.”

Anderson v. Marion

County Sheriff’s Dep’t, 220 F.R.D. 555, 563 (S.D. Ind. 2004) (quotation and citation
omitted). The purpose of this privilege is to protect sources, witnesses, and law
enforcement officers and to prevent interference with on-going investigations, id.,
and accordingly, a claim that the investigatory privilege applies is “somewhat
stronger” when the investigation is on-going, Santiago v. City of Chi., No. 09 CV
3137, 2010 WL 1257780, at *2 (N.D. Ill. March 26, 2010). The burden is on the City
as the party asserting the privilege to show that it applies, Anderson, 220 F.R.D. at
563, and it must show more than an on-going investigation to demonstrate that the
investigatory privilege should protect the documents. See Bond v. Utreras, No. 04
CV 2617, 2006 WL 1343666, at *2 (N.D. Ill. May 12, 2006). As with the deliberative
process privilege, Rodriguez may overcome a valid assertion of the investigatory
privilege if she shows that her need for the information outweighs the harm to the
City should the privilege be lifted, see Dellwood Farms, Inc. v. Cargill, Inc., 128 F.3d
1122, 1125 (7th Cir. 1997).
Starting with the City’s burden to provide specific reasons why the withheld
emails fall within the investigatory privilege, see Preston v. Unknown Chi. Police
Officer No. 1, No. 10 CV 0136, 2010 WL 3273711, at *3 (N.D. Ill. Aug. 16, 2010), in
her declaration Hearts-Glass states that release of the emails could interfere with
the on-going COPA investigation, (R. 117, Defs.’ Resp. Ex. A, Hearts-Glass Decl.
¶12(f)). Rodriguez responds that Defendants are creating “the illusion of an active
investigation” where none exists, pointing to a letter she received from the Chief

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Administrator of COPA four days after Defendants produced their privilege log,
informing her that the COPA investigation was not yet complete. (R. 110, Pl.’s Mot.
at 11 & Ex. C.) Because Rodriguez does not point to any evidence that the COPA
investigation has been finalized, the court assumes for purposes of this analysis
that the investigation is still ongoing.
That said, the general statements in Hearts-Glass’s declaration are
insufficient to demonstrate that the relevant 12 emails should be protected from
disclosure under the investigatory privilege.

See Anderson, 220 F.R.D. at 565

(noting that “sweeping conclusions” and generalities regarding the impact of
disclosure are unhelpful to the privilege determination). Hearts-Glass asserts that
disclosure could give witnesses or other officers information about what witnesses
have already said, what the investigators are thinking, and what kinds of questions
investigators might ask future witnesses. (R. 117, Defs.’ Resp. Ex. A, Hearts-Glass
Decl. ¶12(f).) But these general assertions do not identify a specific harm beyond a
concern that the withheld materials might influence future witness and officer
statements to investigators if they are disseminated.

See Preston, 2010 WL

3273711, at *2-*3; Santiago, 2010 WL 1257780, at *4.

Moreover, as discussed

above, the 12 withheld emails reflect purely factual information, and as relevant for
the current analysis, they do not appear to reveal any confidential investigatory
techniques or to discuss any on-going criminal investigation that might otherwise
justify the claim of privilege.

See Bond, 2006 WL 1343666, at *2.

Out of an

abundance of caution, however, the court will follow the lead of similar cases from

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this district where―in deference to the City’s concern that disclosure of otherwise
private information connected to an on-going investigation could impact the
statements of future witnesses―the courts ordered the files to be produced subject
to an “attorneys’ eyes only” (“AEO”) designation, allowing Rodriguez’s attorneys to
review the emails and use them only for purposes of this case. See Preston, 2010
WL 3273711, at *2-*3; Santiago, 2010 WL 1257780, at *4; Lewis v. City of Chi., 04 C
3904, 2004 WL 2608302, at *3 (N.D. Ill. Nov. 16, 2004). Accordingly, the 12 emails
not protected must be produced, subject to an AEO designation.
Conclusion
For these reasons, Rodriguez’s motion to compel is granted with respect to
the 12 emails identified with bates numbers ending in 0761-0764, 0848-0851, 62506252, and 6699. These emails must be produced subject to an AEO designation.
Rodriguez’s motion is denied with respect to the other 22 withheld emails.
ENTER:

____________________________________
Young B. Kim
United States Magistrate Judge

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