Schloss v. City of Chicago

Filing 152

MEMORANDUM Opinion and Order Signed by the Honorable Maria Valdez on 7/28/2020: Mailed notice (lp, )

Case: 1:18-cv-01880 Document #: 152 Filed: 07/28/20 Page 1 of 15 PageID #:1745

3IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ALLISON SCHLOSS,
Plaintiff,
v.
CITY OF CHICAGO; STEVE E.
GEORGAS; FREDERICK
HARNISH; KAROLY HADJU;
ANGEL ROMERO; ROBERT
FITZSIMMONS; and WARREN
RICHARDS;
Defendants.

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No. 18 C 1880
Magistrate Judge
Maria Valdez

MEMORANDUM OPINION AND ORDER
This matter is before the Court on Plaintiffs’ Consolidated Motion to Compel
Production of Documents [Doc. No. 127]. 1 For the reasons that follow, the motion is
granted in part and denied in part.
BACKGROUND
Allison Schloss’s complaint alleges sex discrimination and retaliation against
the City of Chicago Police Department (“CPD”) and certain individuals. Schloss
claims she was subjected to a hostile working environment and in June 2016 was
wrongfully terminated from her position as the commanding officer of the CPD

The identical motion was filed in the related case Bresnahan v. City of Chicago, No. 18 C
1974. Some requests or arguments relate to only one plaintiff, but to conserve judicial
resources, the same order will be entered in both cases, addressing all arguments raised in
the consolidated motions.
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Marine and Helicopter Unit (“MHU”) she had held since May 2014, among other
retaliatory acts. Maureen Bresnahan’s complaint raises claims of sex discrimination
based on CPD’s July 2015 failure to promote her to the position of Explosives
Technician I in the Special Functions Division’s (“SFD”) Bomb Squad for which she
had applied in February 2015. Schloss and Bresnahan 2 also allege Title VII pattern
and practice and Monell claims that CPD engaged in ongoing discrimination against
women in high profile CPD units such as MHU and the Bomb Squad.
Plaintiffs served their first discovery requests on Defendants in October
2018, and Defendants served their responses in January 2019. In May, the District
Judge granted Plaintiffs’ motion to compel discovery related to their Monell claims.
The parties also engaged in numerous Local Rule 37.2 conferences related to
Defendants’ objections and production in the months following Defendants’
discovery responses, and they were only able to resolve some disputes. Plaintiffs
filed the present motion in February 2020, claiming that Defendants’ production
remains deficient, and that they have failed to honor their agreement to produce
certain categories of documents and/or give more detail to certain objections
claiming production would be burdensome.
Shortly after this motion was filed, and the day before it was set to be heard
by the District Judge, Defendants served supplemental and amended discovery
responses on Plaintiffs. The District Judge ordered Plaintiffs to review the new
discovery responses and referred the motion to this Court for ruling. To determine
A third related complaint, Tapia v. City of Chicago, No. 19 C 1257, also alleges sex
discrimination but is not at issue in the present motion.
2

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what remained of the original motion after supplementation, Plaintiffs were ordered
to file a status report, which maintained that the supplemental responses did not
resolve any of the issues in the motion and in fact raised new problems. According
to Defendants, their discovery answers are complete or nearly so. 3
DISCUSSION
Federal Rule of Civil Procedure 26 provides that “[p]arties may obtain
discovery regarding any nonprivileged matter that is relevant to any party’s claim
or defense and proportional to the needs of the case, considering the importance of
the issues at stake in the action, the amount in controversy, the parties’ relative
access to relevant information, the parties’ resources, the importance of the
discovery in resolving the issues, and whether the burden or expense of the
proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1); see Fed. R.
Civ. P. 34; Fed. R. Civ. P. 37(a)(3)(B). Responses to document requests “must either
state that inspection and related activities will be permitted as requested or state
with specificity the grounds for objecting to the request, including the reasons.”
Fed. R. Civ. P. 34(b)(2)(B). Furthermore, an objection to a document request “must
state whether any responsive materials are being withheld on the basis of that
objection. An objection to part of a request must specify the part and permit
inspection of the rest.” Fed. R. Civ. P. 34(b)(2)(C). As the objecting parties,

Defendants’ response to the motion was filed two weeks after Plaintiffs’ status report. Due
to the extensions of time in General Order 20-0012 and its amendments, Plaintiffs’ reply
was not filed until nearly three months after the response. Despite the Court’s
encouragement that they continue working together, the parties were apparently unable to
resolve any outstanding issues during the delay.
3

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Defendants have the burden to demonstrate that the discovery requests are
improper. See, e.g., Mann v. City of Chi., No. 15 C 9197, 2017 WL 3970592, at *2
(N.D. Ill. Sept. 8, 2017) (citing Rubin v. Islamic Republic of Iran, 349 F. Supp. 2d
1108, 1111 (N.D. Ill. 2004)).
Form of Production/Temporal Scope - Request Nos. 47, 48, 49, 53, and 54
According to Plaintiffs, Defendants agreed to produce documents responsive
to Request Nos. 48, 49, 53, and 54 in early 2019, but they have not yet done so.
Plaintiffs complain that (1) Defendants have not specified whether the additional
production would be in ESI or hard copy form; (2) they have not advised a date
certain for production of any hard copy documents; and (3) they unilaterally
restricted their production of Request Nos. 47-49 to November 1, 2013 to the
present.
Defendants take issue with Plaintiffs’ complaint that the form of production
(ESI or hard copy) was not specified, as well as their request that production be
ordered on a date certain, because the parties were still in the process of negotiating
the ESI production protocol, and further that Defendants should not be required to
“painstakingly identify for each Request whether future productions will include
paper or ESI.” (Defs.’ Resp. at 6.)
Defendants appear to misunderstand Plaintiffs’ argument. Plaintiffs’ motion
does not seek to compel ESI discovery and acknowledges that ESI is still being
discussed. But because Defendants have not foreclosed the existence of hard copy

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discovery, Plaintiffs are proceeding under the assumption that some may exist, and
if so, its production should be ordered on a date certain.
The Court agrees that Defendants should produce any responsive hard copies
forthwith. Defendants’ implication that it would be too difficult to determine
whether hard copies exist is unpersuasive, as Plaintiffs’ documents requests were
served nearly a year and a half ago. The Court emphasizes, however, that hard
copies need only be produced to the extent they are not also part of an ESI
production. Defendant is not obligated to produce both a hard copy and an ESI
version of the same documents.
Defendants’ objection to the temporal scope of Request Nos. 47-49 is
somewhat more persuasive. The requests relate to communications generally
between Bresnahan defendant Egan and the Illinois Department of Natural
Resources (“IDNR”) and specifically regarding IDNR’s issuance of explosives
licenses to persons other than Bresnahan. Request No. 47 seeks documents from
2008 to the present, but Request Nos. 48 and 49 contain no time limitation.
Defendants object to producing any documents from before November 1, 2013, a
date to which the parties previously agreed to limit certain ESI searches, because
an unlimited or a twelve-year scope would require production of irrelevant
documents, and the requests are not proportional to the needs of the case. Plaintiffs
contend that Defendants’ decision to limit the temporal scope was made unilaterally
and arbitrarily, and the parties did not agree to limit document discovery as they
had agreed to limit ESI.

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“District courts addressing discovery-related disputes in cases involving
Monell claims have routinely recognized that such claims often require a broad and
substantial amount of discovery that would not be involved if the plaintiff sued only
the individuals directly involved in the deprivation of his rights.” Awalt v. Marketti,
No. 11 C 6142, 2012 WL 6568242, at *3 (N.D. Ill. Dec. 17, 2012). However, Plaintiffs
do not explain how decades of documents unrelated to Bresnahan would be relevant
to her claim that Egan harassed her by wrongfully challenging her license. The
Court concludes that a limitation to a period of four years prior to the allegedly
wrongful employment action “strikes the proper balance between the value of the
material sought and the burden and time that production would place on the parties
and the Court.” DeLeon-Reyes v. Guevara, No. 18 C 1028, 2019 WL 4278043, at *8
(N.D. Ill. Sept. 10, 2019). Defendants are therefore ordered to produce documents
from 2011.
Overbroad and Burdensome - Request Nos. 1-4, 6-7, 12, 17-22, 27-35, 38, 4043, 45-46, 51-55, 91-93, 95, and 116
Although Defendants have withdrawn some of their objections based on
overbreadth and burden, they maintain the objections with respect to Request Nos.
1-4, 6-7, 12, 17-22, 27-35, 38, 40-43, 45-46, 51-55, 91-93, 95, and 116. Defendants
claim they have shown the requests are overbroad by providing “detailed objections
and justification for their positions.” (Defs.’ Resp. at 7.) However, nearly all of
Defendants’ objections are conclusory and do not specify why the request is
overbroad, nor do they describe the nature or scope of the burden of production or
state whether any documents are being withheld on the basis of the objection.

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Defendants’ response brief does not illuminate the bases for those conclusory
objections any further, and they have thus failed to meet their burden of showing
that those document requests are improper. See Heraeus Kulzer, GmbH v. Biomet,
Inc., 633 F.3d 591, 598 (7th Cir. 2011).
A handful of Defendants’ objections contain enough detail to evaluate.
Request No. 21 asks for documents “evidencing that [defendant] Georgas treated a
male commanding officer of any SFD unit in a manner similar to his treatment of
Schloss.” The Court agrees that the wording of this request is so vague as to be
devoid of meaning, and Defendants need not respond. In Request No. 30, Plaintiffs
seek documents “related to communications between Georgas and Marianovich
concerning staffing or overtime in the Marine or Helicopter Units.” Defendants
contend that the request is overbroad due to its lack of a temporal scope, because
Schloss was only in SFD from 2014 to 2016. The request is overbroad as framed,
and as discussed above, Defendants need only produce communications from 2012.
Defendants also object to the lack of a time limitation in Request No. 95,
which seeks documents “related to your decision to use oral interviews as a selection
procedure for the explosives technician I position.” According to Defendants, the
request is overbroad because it seeks documents for a seventeen-year period. But
the request asks for evidence related to a decision fixed in time at some point within
the last seventeen years, not seventeen years’ worth of documents. Furthermore,
even if the decision predated Bresnahan’s application by several years, the reasons

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behind it could be relevant to her claims of unlawful discrimination and are
discoverable.
FOIA - Request No. 13
Request No. 13 asks for “[a]ll open records, public records, or Freedom of
Information requests received from Bresnahan during the period 2014 to the
present; all documents reviewed or gathered in response to the requests; all email
and other communications related to the requests; and all documents and ESI
justifying your failure to respond to the requests.”
Defendants’ original response objected to the request based on the attorneyclient privilege and work product doctrine, as well as on the grounds that it was
overbroad, vague, and sought information that was not relevant and disproportional
to the needs of the case. Defendants further asserted that the term “related to” was
vague. In their supplemental response served after the present motion was filed,
Defendants added objections that “this request is duplicative and seeks information
that already is within Plaintiff’s possession and control. The City further objects on
the grounds that this request seeks to inappropriately skirt the FOIA process.
Notwithstanding and without waiving the foregoing or General Objections, the City
refers Plaintiff Bresnahan to documents already produced at Bates Nos. BRESDEF002675 – BRES-DEF002681. The City is otherwise withholding documents
based on its objections.”
Plaintiffs argue that the newly asserted objections were waived. Defendants
dispute the notion of waiver in this context because (1) the ongoing duty to

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supplement discovery responses allows a party to continue raising objections and
privileges as well; (2) unlike objections to interrogatories, objections to document
requests cannot be waived; and (3) Plaintiffs are not prejudiced by the timing of the
objections and privilege assertions.
Defendants are correct that unlike Rule 33, Rule 34 does not contain an
express waiver provision. See Fed. R. Civ. P. 33 (“Any ground not stated in a timely
objection is waived unless the court, for good cause, excuses the failure.”). However,
courts in this district have applied Rule 33’s waiver provision to Rule 34 document
requests. See Woods v. Cook County, No. 13 C 2607, 2014 WL 7261277, at *2 (N.D.
Ill. Dec. 19, 2014) (St. Eve, J.) (holding that untimely objections to document
requests are waived); Martinez v. Cook County, No. 11 C 1794, 2012 WL 6186601, at
*3 (N.D. Ill. Dec. 12, 2012) (“A party’s failure to timely object to [Rule 34] discovery
requests without demonstrating good cause for the delay may result in a waiver of
all objections that could otherwise have been asserted.”). Defendants do not contend
that good cause exists for delaying these objections for over a year after the requests
were originally served, and the Court can find none. The objections to Request No.
13 were based on the request itself; they could have been timely made without
additional inquiry or document review.
Defendants further fault Bresnahan for “never identifying what additional
documents, if any, she desires or believes exist. The City should not be made to
guess what additional documents Plaintiff seeks.” (Defs.’ Resp. at 10.) This
argument is baffling, as Defendants’ response acknowledges that they are

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withholding documents based on their objections. Finally, Defendants claim that
Request No. 13 is redundant, because she can now obtain the information she
previously sought through FOIA via a discovery request instead. This argument is
entirely unpersuasive, as the request seeks internal documents related to the FOIA
response, not merely the information originally requested.
Race Data - Request Nos. 56, 57, and 85
Plaintiffs seek monthly (or quarterly) data reporting for all SFC officers from
2008 to the present, including their name, race, sex, star number, date of hire, date
of promotion/selection, job title, title code, and pay code (Request No. 56); data
showing the current demographic composition of the CPD, listed by sex, race, and
rank (Request No. 57); and evidence of steps to eliminate bias, including racial and
gender bias, in the selection of candidates for promotion to Explosives Technician I
(Request No. 85).
Defendants object to producing any race information, arguing that it is
irrelevant to any claim or defense, because the complaints do not contain
allegations related to race. Defendants also assert that they do not maintain reports
compiling all of the listed data points on a monthly or quarterly basis, so they would
need to create the requested documents.
Plaintiffs believe that race data is relevant to their Monell claims for three
reasons: (1) “selection procedures that have an adverse impact on race often
disproportionately disadvantage women and the two variables (race and sex) need
to be separately examined”; (2) Defendants may argue that “some procedures

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implemented to try to create preferences for people of color can have the effect of
discriminating against women”; and (3) “Plaintiffs have alleged unlawful
stereotyping, which frequently means that the decision makers prefer people like
themselves (here, the decision makers in the Special Functions Division are
primarily white men).” (Pls.’ Status Rpt. at 3 n.3.)
First, Plaintiffs have not to this point demonstrated that race data is relevant
to their claims, nor have they shown that they must disaggregate race data in order
to prove gender discrimination. Plaintiffs’ second rationale is somewhat more
persuasive, but it is premised on a defense that Defendants have not yet asserted. If
Defendants do not produce the data but later try to assert a defense that the
allegedly discriminatory procedures were adopted in order to avoid the impact of
other procedures on minorities, then Plaintiffs may raise that with the trial court.
Plaintiffs’ third justification also does not support their request, as the complaints
allege discrimination based on gender alone. Without a demonstrated relevance of
racial demographic information, it is not proportional to the needs in the case and
need not be produced at this time.
Drowning Data - Request Nos. 17-18
Request No. 17 asks for documents “authored by DPC or any other entity or
person, that discuss or analyze drownings in Lake Michigan or another body of
water policed by the Marine Unit in the past 20 years.” Request No. 18 seeks
documents “related to the drowning of any person in Lake Michigan or another body

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of water policed by the Marine Unit since 2008.” 4 Defendants object to these
requests due to their broad temporal scope and the substantial burden of gathering
thousands of documents related to numerous drowning incidents over that time
span. Indeed, Defendants are concerned that they could ever certify that they have
fully complied with the requests. Defendants did produce documents related to the
2016 drowning incident that allegedly led to Schloss’s reassignment and disclosed
all drowning-related lawsuits since 2008; and the parties have agreed to several ESI
search phrases that could identify additional documents.
The Court agrees that the vast scope of the requests is disproportionate to
their relevance. Request No. 17 should be limited to reports or analysis of
drownings in Marine Unit waters from 2012. Defendants’ response to Request No.
18 can be produced in stages. Defendants will first produce either police reports or
other documents sufficient to allow Plaintiffs to determine the circumstances of
each drowning incident and the Marine Unit’s response, limited to drownings since
2012. After reviewing this summary information, if Plaintiffs believe further details
of a particular incident are relevant and proportional under Rule 26, they may ask
for more documentation. Plaintiffs are cautioned that they must limit further
inquiry to closely relevant cases.

Request No. 18 excludes documents covered by Request No. 16, which asks for documents
“evidencing that any commanding officer of the Marine Unit has ever been reassigned or
had his vehicle removed because a person drowned in Lake Michigan or another body of
water policed by the Marine Unit.” Request No. 16 is not at issue in this motion.

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Law Enforcement Investigative Privilege - Request Nos. 4-11, 14-16, 18, 3134, 38, 45-46, 99, 100, and 118
Defendants’ supplemental response raises the law enforcement investigative
privilege for Request Nos. 4-11, 14-16, 18, 31-34, 38, 45-46, 99, 100, and 118. They
claim that because Plaintiffs’ requests seek information such as Complaint Register
(“CR”) files beyond those stated in the complaints, the privilege is necessary to
protect those CRs from disclosure. By way of example, Request No. 4 asks for each
Plaintiff’s complete file, which would include CRs brought by civilians, CRs in which
Plaintiffs were witnesses, and other files that Defendants contend are unrelated.
The privilege is intended “to prevent the harm to law enforcement efforts
which may arise from public disclosure of investigative files, . . . to prevent
disclosure of law enforcement techniques and procedures, to preserve the
confidentiality of sources, to protect witness and law enforcement personnel, to
safeguard the privacy of individuals involved in an investigation, and otherwise to
prevent interference with an investigation.” Lewis v. City of Chi., No. 04 C 3904,
2004 WL 2608302, at *1 (N.D. Ill. Nov. 16, 2004) (internal quotations and citations
omitted). It is a qualified, rather than absolute, privilege and it can be overridden if
the need for the materials outweighs the harm to the government. Id. at *2 (“This
balancing test takes place on the merits, but only after threshold procedural
requirements have been met.”); see Munive v. Town of Cicero, No. 12 C 5481, 2013
WL 1286664, at *2 (N.D. Ill. Mar. 28, 2013). In order to meet the burden of showing
that disclosure of the material would cause harm, a responsible official within the
entity asserting the privilege “must lodge a formal claim of privilege, after actual

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personal consideration, specifying with particularity the information for which
protection is sought, and explain why the information falls within the scope of the
privilege.” Lewis, 2004 WL 2608302, at *2 (internal quotations and citations
omitted).
However, Defendants have not actually asserted the privilege, and thus the
Court need not determine whether it applies here. Defendants’ anticipatory claim
that some responsive documents might be harmful if disclosed does not meet either
the procedural or substantive requirement of the investigative privilege. See Harris
v. City of Chi., 1:14-CV-04391, 2015 WL 7351717, at *1 (N.D. Ill. Nov. 20, 2015)
(“The City’s failure to identify a specific investigative harm here is a bar to its
asserted privilege.”); see also Hobley v. Burge, No. 03 C 3678, 2004 WL 1687005, at
*2 (N.D. Ill. July 26, 2004) (finding that failing to expressly assert a privilege and
provide a log of withheld documents can act as a waiver of the privilege).
Defendants acknowledge as much, stating that they are in the process of trying to
identify open CRs that they intend to withhold, and if they do so, they will provide
the necessary affidavit. If Defendants go forward and assert the privilege, however,
they must be mindful that the objection will be considered waived unless they
demonstrate good cause for the extreme delay. The Court also emphasizes that even
if the delay is ultimately excused, the privilege will be strictly construed. The
response brief suggests that Defendants may seek to shield CRs merely because
they “extend far beyond” the allegations in the complaint, “have no bearing” on the
case, or are “unrelated” to the litigation; relevance, however, is not a factor in

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considering the application of the privilege. Defendants must either properly assert
the privilege, consistent with relevant case law and this order, or produce all
relevant documents. 5
CONCLUSION
For the foregoing reasons, Plaintiffs’ Consolidated Motion to Compel
Production of Documents [Doc. No. 127] is granted in part and denied in part.
Defendant must produce all outstanding discovery, as stated in this Order, no later
than August 18, 2020.
SO ORDERED.

ENTERED:

DATE:

___________________________
HON. MARIA VALDEZ
United States Magistrate Judge

July 28, 2020

Defendants’ responses also asserted numerous definitional objections. The Court agrees
with Plaintiffs that most of them are commonly used words, such as “related to” or
“considered.” To the extent that Defendants are truly confused about the use of the
objected-to words and phrases in context, that is precisely the purpose of the meet and
confer process. The Court trusts that Plaintiffs are interested in obtaining relevant
information and will therefore work with Defendants to clarify the requests if necessary
and agree on shared definitions.
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