Saleh v. Pfister et al

Filing 140

MEMORANDUM OPINION and ORDER: Signed by the Honorable Jeffrey Cole on 11/20/2. Mailed notice (yt)

Case: 1:18-cv-01812 Document #: 140 Filed: 11/20/20 Page 1 of 6 PageID #:846

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ABDEL JABER SALEH,
Plaintiff,
v.
RANDY PFISTER, et al.,
Defendants.

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No. 18 C 1812
Magistrate Judge Jeffrey Cole

MEMORANDUM OPINION AND ORDER

The Defendants have filed a Motion for the Entry of a Protective Order. For the following
reasons, the Motion [Dkt. # 129] is granted and the protective order will be entered.
The Order Defendant proposes deviates from the standard Northern District of Illinois
Confidentiality Order in that it adds an “attorney’s eyes only” designation for a higher level of
confidentiality and specifies as confidential: 1) material related to Illinois Department of Corrections
investigations that could compromise the safety and security of Illinois Department of Corrections
operations and 2) personal information relating to other IDOC inmates.
Attorney’s-eyes-only designations are not uncommon in prisoner litigation cases and they
are not, as Plaintiff suggests, “extraordinary.” [Dkt. #131, at 4]. See, e.g., In re Sec'y, Fla. Dep't of
Corr., 2020 WL 1933170, at *1 (11th Cir. Mar. 30, 2020); Utley v. Acevedo, 2016 WL 4417728, at
*6 (E.D. Cal. Aug. 19, 2016); White v. Jindal, 2015 WL 181670, at *8 (E.D. Mich. Jan. 14, 2015);
Ellis v. Navarro, 2012 WL 1294205, at *1-2 (N.D. Cal. Apr. 16, 2012); Williams v. Williams, 2011
WL 863500, at *3-4 (N.D. Cal. Mar. 10, 2011). But, in exchange, Plaintiff wants to “flip” the
standard challenge-of-designation language of Paragraph 9(b), with the burden on the designator to

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apply to the court for a ruling within ten days of a challenge:
9(b) Judicial Intervention. If a party’s Confidential Information or Attorney’s Eyes
Only designation is challenged, and the parties do not resolve the challenge pursuant
to sub-paragraph 9(a), the document shall cease to be treated as Confidential
Information or Attorney’s Eyes Only ten (10) business days after such challenge
unless the party designating the document as Confidential Information or Attorney’s
Eyes Only files and serves a motion that identifies the challenged material and sets
forth in detail the basis for the Confidential Information or Attorney’s Eyes Only
designation. Each such motion must be accompanied by a competent declaration that
affirms that the movant has complied with the meet and confer requirements of this
procedure. The burden of persuasion in any such challenge proceeding shall be
on the designating party. Until the Court rules on the challenge, all parties shall
continue to treat the materials as Confidential Information under the terms of this
Order.
[Dkt. #131, at 8].
Counsels’ debate on this matter has been typical of the struggles in this case with what should
be rather routine discovery. Unfortunately, here, as in so many other unrelated cases, the parties do
not even agree on what went on between them during the negotiations over the wording of the
Protective Order.1 However, it looks as though by September 16, 2020, Plaintiff’s counsel had
provided the amendments to a draft and consented to that version. Defense counsel did not respond
for nearly two months when, on November 4th, they indicated they would not produce discovery until
their version of the Protective Order was in place. The Reply Brief states that its author was on
maternity leave, and that she shared this information with defense counsel. When, she does not say.
[Dkt. #135, at 7]. In any event, given the history of this case, one suspects that this uncomplicated
matter could have been handled more efficiently than with a two-month long stalemate, culminating

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This is not intended to be critical of counsel. But the reality is in case after case, competing
documents are filed which take diametrically opposed positions on what happened at a particular meeting
regarding discovery. The difficulty this sort of conflict presents is obvious. Even though facts are outcome
determinative, Sandra T.E. v. South Berwyn School Dist., 600 F.3d 612, 619 (7th Cir. 2010), in case after case
lawyers continue to differ dramatically on what occurred in meetings in which they were involved.

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in counsels’ third application to court for intervention in about a week.
In any event, we turn to the Plaintiff’s proposed amendment. First, the Defendants argue that
the Plaintiff’s proposed language would impose additional procedures on the parties not
supported by the Federal Rules of Civil Procedure. It is not clear what defendant means by that
as, generally, it is always the party withholding materials from discovery that has the burden of
showing why that’s justified. The same goes for showing materials are confidential. See NEXT
Payment Sols., Inc. v. CLEAResult Consulting, Inc., 2018 WL 3637356, at *15 (N.D. Ill. July 31,
2018); Pfizer Inc. v. Apotex Inc., 744 F. Supp. 2d 758, 766 (N.D. Ill. 2010); One Sec. Litig., 222
F.R.D. 582, 586 (N.D. Ill. 2004) (citing Union Oil Co. of Cal. v. Leavell, 220 F.3d 562, 568 (7th Cir.
2000)).
The next bone of contention between counsel is their shared fear that the other will act
baselessly in either designating or challenging designations. Plaintiff thinks his amendment prevents
Defendant from making kitchen-sink attorney’s-eye-only designations. Defendant thinks Plaintiff’s
amendment incentivizes Plaintiff’s counsel to make baseless challenges to any and all designations.
As such, both sides claim they are concerned there will be needless motion practice and court
intervention. [Dkt. # 129, at 2; #131, at 5-6; #135, at 4-5]. But I am unwilling to pick one side over
the other when each side’s offering is predicated on a supposition that the other side will engage in
misconduct and that misconduct will be eliminated if only the court chooses “correctly” and picks
the “correct” version of the Protective Order. But misconduct is entirely within the control of counsel
and I am unwilling to opt for a version of a Protective Order which assumes that one side will act
appropriately but the other will not. Consequently, I reject the contention of both sides that their
version of the Protective Order is based on a concern that the selected version will eliminate needless
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motion practice and the prohibited squandering of judicial resources in this case,2 a review of the
published cases regarding discovery makes it clear beyond any doubt that blame cannot be presumed
in advance to be more likely to have occurred on behalf of one side or the other. The case law makes
abundantly clear that fault or responsibility for “misconduct” or “mistakes” is not a function of the
side a particular lawyer finds himself or herself on. Neither plaintiffs nor defendants have a
monopoly on either “goodness” or “misconduct.” The fact remains in this case that there have been
three rather breathless discovery motions filed in a week over rather routine matters. Whatever the
language of the Protective Order, there is at least some likelihood that there will be needless motion
practice and squandering of judicial resources by one side or the other. In short, whatever the form
of the amendment, needless motion practice is not rendered more or less likely by choosing one
party’s version over the other.
Distilling the submissions on the plaintiff’s amendment down to their essence, the
Defendant’s main concern seems to be the ten-day clock. Certainly, Plaintiff’s concerns for delay
on Defendant’s part are understandable, so the amendment is a clever device. The Defendant is not
happy with it at all, however and argues:
Because the 10-day clock starts as soon as a party challenges the designation, and
because the designating party bears the burden of persuasion––including the burden
of finding any relevant case law or other authority––the designating party must start
preparing its motion in support for its designation as quickly as possible in case the
parties reach an impasse. Indeed, a designating party may fair [sic] better to spend the
10-day clock researching case law to include in a brief than meeting and
conferring with opposing counsel.
[Dkt. #135, at 4].

2

Chapman v. First Index, Inc., 796 F.3d 783, 787 (7th Cir. 2015); Chicago Observer, Inc. v. City of
Chicago, 929 F.2d 325, 329 (7th Cir.1991). See also cases cited in Lawson v. Chicago Rail Link, LLC, 2013
WL 4401368, *2 (N.D.Ill. 2013).

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If, as defendant claims, it is standard practice for the IDOC to include attorney’s-eyes-only
provisions in inmate cases [Dkt. #135, at 2], then much of the legal groundwork ought to be in place.
Certainly more than a single case from the Southern District of Illinois. [Dkt. #129, at 1; #135, at 2].
And such research should be in place in order to have a meaningful, good-faith meet and confer. So
it is a good idea to have already begun if that research has not already occurred, as it should. If it has
not begun, it should begin immediately and it should not be very time consuming as it seems quite
simple.
Still, in this instance, again, I see no need to depart from standard practice. While less than
optimal, the discovery in this case has not been so different than discovery in countless other cases.
With respect to plaintiff’s concerns, however, the court will endeavor to make briefing schedules
exceedingly brief and rulings as rapid and also brief as allowable, with discovery set to close on
December 15th. [Dkt. #115]. But, this is not the only case on the docket and not necessarily more
important than any other. See cases cited n.1, supra. The parties will have to be satisfied with those
conditions given the circumstances, and the broad discretion the court has in ruling on disputes the
parties are incapable of resolving. See, e.g., Winkler v. Eli Lilly & Co., 101 F.3d 1196, 1203 (7th Cir.
1996)(“[D]iscretion, however, is a flexible term which covers a range of degrees of deference rather
than denoting a point within that range.”); Superior Graphite Co. v. Campos, 2020 WL 5210841,
at *7 (N.D. Ill. Sept. 1, 2020); Infowhyse GmbH v. Fleetwood Grp., 2016 WL 4063168, at *2 (N.D.
Ill. July 29, 2016).

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Case: 1:18-cv-01812 Document #: 140 Filed: 11/20/20 Page 6 of 6 PageID #:851

ENTERED:
UNITED STATES MAGISTRATE JUDGE
DATE: 11/20/20

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