Lambert et al v. Alexander County Housing Authority et al

Filing 73

ORDER: Plaintiffs' request to overrule Defendants' assertion of deliberative process privilege with respect to Plaintiffs' request for Defendants' executive session minutes is DENIED. Signed by Magistrate Judge Reona J. Daly on 3/27/17. (dam)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

PAUL LAMBERT, et al.,
Plaintiffs,
vs.
ALEXANDER COUNTY HOUSING
AUTHORITY, et al.,
Defendants.

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Case No. 3:16 CV 513 MJR/RJD

MEMORANDUM AND ORDER
DALY, Magistrate Judge:
This matter comes before the Court pursuant to the discovery dispute conference held on
February 17, 2017. (Doc. 67.) On May 10, 2016, Plaintiffs, who are residents of the McBride
and Elmwood developments in Cairo, Illinois, filed a complaint against Defendants Alexander
County Housing Authority, James Wilson, and Martha Franklin. (Doc. 1.) On February 13,
2017, Plaintiffs filed an amended complaint, alleging claims of housing discrimination based on
race and familial status, breach of contract, and failure to maintain rental units. (Doc. 66.) On
February 17, 2017, the Court held a discovery dispute conference regarding Defendants’
responses to Plaintiff’s discovery requests. Following the discovery dispute conference, the sole
remaining issue was whether Defendants could assert deliberative process privilege to withhold
the executive session minutes requested by Plaintiffs, and the parties submitted briefs on the
issue. (Docs. 71, 72.)
Plaintiffs argue that Defendants waived deliberative process privilege by failing to assert
it in a timely manner. Parties must respond or object to requests for production within thirty
days of service. Fed. R. Civ. P. 34(b). To assert privilege with respect to discovery requests, a

party must describe the withheld discovery materials in a manner that will allow other parties to
assess the assertion of privilege.

Fed. R. Civ. P. 26(b)(5).

Failure to comply with these

provisions may result in the waiver of privilege. Ritacca v. Abbott Labs., 203 F.R.D. 332, 335
(N.D. Ill. 2001). As stated by the Ritacca court:
Acknowledging the harshness of a waiver sanction, courts have reserved the
sanction for those cases where the offending party committed unjustified delay in
responding to discovery. Minor procedural violations, good faith attempts at
compliance, and other such mitigating circumstances militate against finding
waiver. In contrast, evidence of foot-dragging or a cavalier attitude towards
following court orders and the discovery rules supports finding waiver. In the
end, the determination of waiver must be made on a case-by-case basis.
Id.
According to Plaintiffs’ submissions, Plaintiffs first issued a specific request for the
executive session minutes on November 28, 2016. During a teleconference on January 12, 2017,
Defendants did not expressly assert deliberative process privilege; however, Defendants
questioned whether Plaintiffs were entitled to discover the executive session minutes, and
Plaintiffs responded that they would follow up separately on the executive session minutes. On
February 17, 2017, during the discovery dispute conference, Defendants asserted deliberative
process privilege for the first time. Although Defendants should have asserted the deliberative
process privilege sooner, Defendants’ conduct falls short of the conduct described in the cases
cited by Plaintiffs, which consisted of misrepresentation, evasive behavior, and a cavalier
attitude with regard to the rules and orders. See Ritacca, 203 F.R.D. at 335-36; Slabaugh v. State
Farm Fire & Cas. Co., 2013 WL 4777206, at *2 (S.D. Ind. Sept. 5, 2013). The Court concludes
that Defendants’ conduct does not warrant the harsh sanction of waiver.
Defendants argue that the deliberative process privilege applies to the executive session
minutes and that Plaintiffs have failed to set forth a particularized need that outweighs the need
for confidentiality. “The deliberative process privilege protects communications that are part of
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the decision-making process of a governmental agency.” United States v. Farley, 11 F.3d 1385,
1389 (7th Cir. 1993). “The deliberative process privilege may be overcome where there is a
sufficient showing of a particularized need to outweigh the reasons for confidentiality.” Id.
Defendants have submitted the executive session minutes for in camera review. Upon review of
the executive session minutes, the Court finds that the executive session minutes reflect predecisional policy discussions. Plaintiffs argue that records of board votes are not pre-decisional
but are themselves decisions, which are not subject to the deliberative process privilege.
However, the executive session minutes contain no records of board votes.
With respect to a particularized need, Plaintiffs argue that the executive session minutes
may provide evidence of intent to discriminate against residents on the basis of race or familial
status and that the minutes are of heightened importance due to the unavailability of other
evidence. The Court finds the cases cited by Plaintiffs to be instructive on whether Plaintiffs
demonstrate a particularized need. See Gibbons v. Vill. of Sauk Vill., 2016 WL 7104255 (N.D.
Ill. 2016) Sronkoski v. Schaumburg Sch. Dist., No. 54, 2009 WL 1940779 (N.D. Ill. 2009). In
the employment discrimination cases of Gibbons and Sronkoski, the plaintiff employees had
knowledge prior to moving to compel that the defendant employers had discussed the plaintiffs’
employment at specific board meetings and requested records for those specific board meetings.
The courts in Gibbons and Sronkoski reviewed the records at issue and determined that the
records were relevant to the plaintiffs’ claims. The courts then concluded that the plaintiffs had
demonstrated a particularized need and ordered the defendants to produce the records over their
assertions of deliberative process privilege.
Here, Plaintiffs seek executive session minutes from 2012 to the present date without any
effort to narrow the request to specific board meetings in which Defendants discussed topics

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relevant to Plaintiffs’ claims. Rather, Plaintiffs broadly seek information regarding discussions
on, inter alia, salaries, rental unit maintenance, and residential applications.

Plaintiffs’

scattershot approach stands in stark contrast to the particularized requests in Gibbons and
Sronkoski. Accordingly, the Court finds that Plaintiffs have not demonstrated a particularized
need with respect to the executive session minutes.
CONCLUSION
It is hereby ORDERED that Plaintiffs’ request to overrule Defendants’ assertion of
deliberative process privilege with respect to Plaintiffs’ request for Defendants’ executive
session minutes is DENIED.

SO ORDERED.
DATED: March 27, 2017

s/
Reona J. Daly
l
UNITED STATES MAGISTRATE JUDGE

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