Monroe et al v. Rauner et al

Filing 242

ORDER granting in part and denying in part 222 Motion to Compel. See Order for specifics. Signed by Chief Judge Nancy J. Rosenstengel on 12/17/2020. (anp)

Case 3:18-cv-00156-NJR Document 242 Filed 12/17/20 Page 1 of 11 Page ID #3636

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JANIAH MONROE,
MARILYN MELENDEZ,
LYDIA HELÉNA VISION,
SORA KUYKENDALL, and
SASHA REED,
Plaintiffs,
v.

Case No. 3:18-CV-00156-NJR

ROB JEFFREYS,
STEVE MEEKS, and
MELVIN HINTON,
Defendants.

MEMORANDUM AND ORDER
ROSENSTENGEL, Chief Judge:
Pending before the Court is Plaintiffs’ Motion to Compel Discovery Responses
filed by Plaintiffs Janiah Monroe, Marilyn Melendez, Lydia Heléna Vision, Sora
Kuykendall, and Sasha Reed. (Doc. 222). Plaintiffs are in the custody of the Illinois
Department of Corrections (“IDOC”). (Doc. 1, p. 1.). They filed their Complaint on
January 31, 2018, alleging Defendants fail to properly evaluate and provide necessary
medical care for gender dysphoria. (Doc. 1, p. 19).
FACTUAL & PROCEDURAL BACKGROUND
Plaintiffs filed their motion to compel seeking discovery responsive to Plaintiffs’
second and third sets of Requests for Production (“RFPs”). (Doc. 222, p. 3). Plaintiffs claim
IDOC failed to provide any responses or objections and failed to produce documents
sufficient to comply with said requests. (Id.). Plaintiffs also seek discovery responsive to
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Plaintiffs’ first RFPs, alleging Defendants failed to timely provide updated documents in
response to those requests. (Id.).
Plaintiffs ask the Court to order Defendants to produce updated electronically
stored information (“ESI“) and documents responsive to Plaintiffs’ first RFPs. In addition,
the second set of requests seek the following documents:
Request #1: All documents and communications relating to previous
suicides of transgender prisoners, including, but not limited to,
documents relating to IDOC’s “Suicide Task Force,” and documents
generated in the course of any mortality review of the death in
question. (Doc. 222-1, p. 7).
Request #2: All documents and communications relating to the
revision and implementation of the new Administrative Directive on
“Evaluations of Transgender Offenders.” (Doc. 222-1, p. 7).
Request #6: All documents and communications relating to any
IDOC “Quality Assurance Program” relating to transgender
prisoners, including the program referred to by Dr. Puga in his
testimony at the PI hearing. (Doc. 222-1, p. 7).
The third set of requests seek the following documents:
Request #1: Documents reflecting any efforts undertaken by IDOC
to comply with the Preliminary Injunction Orders. (Doc. 222-2, p. 7).
Request #2: Documents reflecting any changes made by IDOC to
comply with the Preliminary Injunction Orders. (Doc. 222-2, p. 7).
Request #3: Documents reflecting any efforts IDOC has directed
Wexford Health staff to undertake for purposes of IDOC’s
compliance with the Preliminary Injunction Orders. (Doc. 222-2, p.
7).
Request #4: Any internal or external correspondence relating to
RFPs 1, 2, and 3. (Doc. 222-2, p. 7).
Request #5: Documents reflecting the role and responsibilities of the
Transgender Care Review Committee from July 1, 2019, through the
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present. (Doc. 222-2, p. 7).
Request #6: Documents reflecting the current role and
responsibilities of Dr. Erica Anderson in her position as IDOC’s
consultant, as well as her qualifications for that position. (Doc. 2222, p. 7).
Request #7: Documents reflecting the role and responsibilities of
Wendy Leach or anyone else serving as IDOC’s consultant in
complying with the Preliminary Injunction Orders (Dkts. 186 and
211), as well as their qualifications for that position. (Doc. 222-2, p.
7).
Request #8: Correspondence involving Dr. William Puga or Dr.
Shane Reister relating to the Preliminary Injunction briefing,
hearing, or any court order related thereto. (Doc. 222-2, p. 7).
Defendants responded, arguing Plaintiffs’ motion should be denied because,
along with the numerous amount of documents being requested, the COVID-19
pandemic caused delays, and some discovery is protected under the deliberative process
privilege; and other discovery is either an undue burden or was provided to the best of
Defendants’ ability with other ongoing document production. (Doc. 223, pp. 5, 8, 11).
More specifically, Defendants argue: (1) The timing at issue is more complicated than
normal due to COVID-19; (2) The deliberative process privilege should be upheld for
now, while the Department continues to revamp its policies on transgender care; and
(3) Other documents at issue have been addressed by Defendants, such as documents
concerning the Suicide Task Force, Dr. Anderson, correspondence involving Dr. Puga
and Dr. Reister, and supplemental production. (Doc. 223, pp. 5, 8, 11-13).
In support of their first argument, Defendants highlight the numerous amount of
documents requested, arguing COVID-19 is delaying the Department, and declaring that

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Defendants’ counsel tried sending emails in a native format, yet Plaintiffs allegedly
disagreed with the receipt of those emails in said format. (Doc. 223, pp. 5-7).
In support of their second argument, Defendants suggest they have already
responded to Plaintiffs’ third set of RFPs on July 10, 2020, directing Plaintiffs to other
documents produced without providing new ones. (Doc. 223, p. 8). Defendants argue that
IDOC’s changes to procedures for transgender inmates are pre-decisional, which falls
under deliberative process privilege protection. (Id. at p. 10). Defendants further argue
that relevance alone is not enough for Plaintiffs to compel discovery of said documents.
(Id.).
Finally, in support of their third argument, Defendants suggest Plaintiffs’ request
for suicide information regarding only transgender inmates is an undue burden and
would require Defendants to produce information on deceased, non-class-members.
(Doc. 223, pp. 11-12).
Additionally, Defendants argue that Dr. Anderson’s contract was produced on
July 8, 2020, her qualifications were referenced in previous court filings, and further
information will be provided directly from Dr. Anderson herself. (Doc. 223, p. 12).
Regarding any correspondence between Dr. Puga and Dr. Reister, Defendants argued
that they have responded to this request and produced materials not otherwise covered
by the deliberative process privilege or attorney-client privilege. (Doc. 223, pp. 12-13).
Defendants assured that responsive, non-privileged documents from the 2020 ESI search
will be produced. (Doc. 223, pp. 13). Lastly, Defendants argue that some of their
supplemental production was delayed due to COVID-19, but the process is ongoing, and

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documents will be provided as they become available. (Id.).
Plaintiffs filed a reply brief arguing, “Defendants have not yet completed their
supplementary ESI production, which they claim includes documents responsive to
Plaintiffs’ Second Set of RFPs No. 1 and Third Set of RFPs No. 8. Nor have they made out
a prima facie case for the deliberative process privilege, which Defendants assert protects
documents responsive to Plaintiffs’ Second Set of RFPs No. 2 and Third Set of RFPs Nos.
1 and 2.” (Doc. 224, p. 1).
ANALYSIS
Federal Rule of Civil Procedure 26(b)(1) permits the discovery of any matter
relevant to the subject matter of the pending action, so long as the sought-after
information is not privileged. Discovery does not need to be admissible at trial if the
information sought appears reasonably calculated to lead to the discovery of admissible
evidence. The Supreme Court has interpreted relevance broadly to include any matter
that bears on, or that reasonably could lead to other matters that could bear on, any issue
that is or may be in the case. Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978).
I.

Deliberative Process Privilege

Defendants argue certain requested documents and information are protected by
the deliberative process privilege, specifically request number 2 in Plaintiffs’ second set
of RFPs and requests numbers 1 and 2 in Plaintiffs’ third set of RFPs. (Doc. 223-1, p. 2;
Doc. 223-2, pp. 1-2).
“The deliberative process privilege protects communications that are part of the
decision-making process of a governmental agency.” U.S. v. Farley, 11 F.3d 1385, 1389 (7th

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Cir. 1993). Said communications include “documents reflecting advisory opinions,
recommendations, and deliberations that are part of a process by which Government
decisions and policies are formulated.” Dep’t of Interior v. Klamath Water Users Protective
Ass’n, 532 U.S. 1, 2, 121 S. Ct. 1060, 1062, 149 L.Ed.2d 87 (2001). This privilege is meant to
protect documents that are both pre-decisional and deliberative. Becker v. I.R.S., 34 F.3d
398, 403 (7th Cir. 1994). “The government bears the burden of proving what deliberative
process was involved and what role the document played in that process.” King v. I.R.S.,
684 F.2d 517, 519 (7th Cir. 1982).
Courts conduct a two-step inquiry when determining whether the requested
information is protected under the privilege. Sandholm v. Dixon Public School Dist. No. 170,
Case No. 09 C 50119, 2010 WL 899032, *3 (N.D. Ill. 2010). First, the governmental agency
must show that privilege applies. Id. The privilege only applies to matters that are predecisional and deliberative. Id. Pre-decisional communications are ones in which the
information was generated before the adoption of an agency policy, and deliberative
communications involve the give and take of the consultative process. Id. Second, the
privilege is not absolute; it may be defeated if the party opposed to it is able to make a
sufficient showing of a particularized need that outweighs the need for the privilege.
Farley, 11 F.3d at 1389. Relevance alone is not enough to overcome the privilege. Id. at
1390. The Court must balance “the particularized need for the documents against their
nature and the effect of disclosure on the government.” Id.
“Since frank discussion of legal and policy matters is essential to the
decisionmaking process of a governmental agency, communications made prior to and

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as part of an agency determination are protected from disclosure.” Farley, 11 F.3d at 1389.
Behind the deliberative process privilege is the thought that the potential for candid
conversations will suffer if said conversations run the risk of being used in discovery.
Dep’t of Interior, 532 U.S. at 8-9. “Moreover, since the documents reflect an agency’s
preliminary positions about how to exercise discretion on a policy, they are privileged.”
Farley, 11 F.3d at 1389.
Plaintiffs argue Defendants failed to timely respond to Plaintiffs’ requests, thereby
constituting an abuse of process and causing Defendants to have waived the use of the
deliberative process privilege. (Doc. 222, p. 9). Plaintiffs argue Defendants caused an
unjustifiable delay by waiting months to respond and by only raising this objection after
Plaintiffs requested a meet and confer to address their outstanding discovery requests.
(Id.).
In light of the COVID administrative orders extending discovery deadlines, this
Court finds Defendants’ responses timely. There was no undue delay given that the
parties participated in a meet and confer on July 2, 2020, which was prior to the discovery
deadline.
Plaintiffs also argue that Defendants did not make a prima facie case for the
deliberative process privilege. (Doc. 222, p. 9). Plaintiffs cite to United States v. Reynolds,
345 U.S. 1, 73 S.Ct. 528 (1953), and Holmes v. Hernandez, 221 F.Supp.3d 1011, 1016 (N.D.
Ill. 2016), arguing the existence of three different requirements Defendants needed to
fulfill in order to successfully claim the deliberative process privilege. (Id.).
Plaintiffs’ case law in support of their argument, regarding the three requirements

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from Reynolds, stem primarily from the Northern District of Illinois. Opinions from this
Court, including Doe v. Freeburg Community Consolidated School District, Case No. 10-cv458-JPG-DGW, 2011 WL 2013945 (S.D. Ill. 20,11) and Harris v. Panter City Hauling, Inc.,
Case No. 13-cv-337-MJR-DGW, 2014 WL 29630 (S.D. Ill. 2014), employ the simple, twostep process of ruling on the deliberative process privilege, and this Court sees no reason
to depart from said two-step process at this time. Additionally, unlike in Reynolds, we are
dealing here not with military secrets. Therefore, Plaintiffs’ argument that the factors
used in Reynolds apply here is of no moment. Those factors were used with military
secrets and military operations at issue as opposed to the circumstances at hand.
Therefore, those factors are irrelevant for the purposes of this case.
Defendants objected to Plaintiffs’ second request in their second set of RFPs which
seeks all documents and communications relating to the revision and implementation of
the new Administrative Directive on “Evaluations of Transgender Offenders.”
Defendants argue that the documents requested are deliberative and pre-decisional since
they concern revisions and communications regarding the new Administrative Directive.
(Doc. 222, p. 10). This Court agrees. The documents and information Plaintiffs requested
include communications and documents relating to the revision and implementation of
the new policy, which concerns both information generated before the adoption of a
policy and the consultative process beforehand. This falls into the deliberative and predecisional categories. These reasons apply, as well, to Defendants’ deliberative process
privilege claims regarding Plaintiffs’ first and second requests in their third set of RFPs,
which seeks documents reflecting efforts taken by IDOC to comply with the preliminary

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injunction and changes made by IDOC in order to comply with the preliminary
injunction.
The question now turns to whether Plaintiffs can make a sufficient showing as to
a particularized need for production of the requested documents and communications.
Plaintiffs have demonstrated a particularized need for these documents. The documents
Plaintiffs requested concern documents and communications regarding the revision and
implementation of the new Administrative Directive; documents regarding any efforts to
comply with the Preliminary Injunction Orders; and documents regarding any changes
made to comply with the Preliminary Injunction Orders. These requests relate directly to
the administrative processes regarding treatment of gender dysphoria and IDOC’s efforts
to comply with the Preliminary Injunction Order also regarding the treatment of gender
dysphoria. Given the nature of the claims in this case, the Court finds that Plaintiffs’
particularized need for these documents outweighs Defendants’ need for confidentiality.
II.

Suicide Task Force

In Plaintiffs’ second set of RFPs, they request, “All documents and
communications relating to previous suicides of transgender prisoners, including, but
not limited to, documents relating to IDOC’s ‘Suicide Task Force,’ and documents
generated in the course of any mortality review of the death in question.” (Doc. 222-1, p.
7). Defendants have already produced documents related to the “Suicide Task Force,” as
well as mental and medical health records of those known to be gender
dysphoric/transgender. (Doc. 223, p. 12). Documents regarding evidence of self-harm,
including genital mutilation and suicide attempts, have also been produced.

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Defendants object to any request for an additional search of suicide-related
documents for possible information about transgender inmates. (Doc. 223, p. 11-12).
Defendants note that IDOC does not track suicide information related to transgender
inmates, and such a search would be unlikely to produce anything not already identified
in the ESI searches. (Id.). The requested information would also implicate the confidential
information of deceased inmates. (Id. at p. 12).
Plaintiffs, on the other hand, argue that these records are necessary as a failure to
provide adequate care for inmates with gender dysphoria results in increased risk of selfharm, such as genital mutilation and suicide. (Doc. 222, pp. 5-6). Plaintiffs also argue that
this information relates directly to the question of IDOC’s knowledge and alleged
disregard of the risk of suicide among transgender prisoners receiving inadequate care
for gender dysphoria. (Id.).
Rule 26(b)(1) of the Federal Rules of Civil Procedure permits parties to obtain
discovery regarding “any nonprivileged matter that is relevant to any party’s claim or
defense and proportional to the needs of the case,” while considering other factors, one
including whether the burden of the requested discovery outweighs the likely benefit.
Furthermore, “the party from whom discovery is sought must show that the information
is not reasonably accessible because of undue burden or cost.” FED. R. CIV. P. 26(b)(2)(B).
The potential burden of Plaintiffs’ discovery request is outweighed by the likely
benefit of that information being provided. As Plaintiffs mentioned, inadequate
treatment of gender dysphoria could lead to genital mutilation and suicide. Additionally,
transgender suicide records could provide further insight into the effect of inadequate

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treatment of gender dysphoria. This discovery request is relevant to Plaintiffs’ claims for
the aforementioned reasons and is proportional to the needs of the case as it goes to the
heart of Plaintiffs’ claims. Therefore, Defendants must disclose the information requested
within the first request in Plaintiffs’ second RFPs.
III.

Other Requests

Potential issues regarding other documents, ESI searches and communications
that were not provided due to delays, that were not provided due to the ongoing process
of production, or that have already been produced are moot because it appears that
Defendants have now produced those documents. Thus, to the extent Plaintiffs seek to
compel further responses, those requests are DENIED as moot. An updated status of
those productions should be provided at the status conference set for January 7, 2021.
DISPOSITION
For the reasons state above, Plaintiffs’ Motion to Compel Discovery Responses
(Doc. 222) is GRANTED in part and DENIED in part.
IT IS SO ORDERED.
DATED: December 17, 2020
_____________________________
NANCY J. ROSENSTENGEL
Chief U.S. District Judge

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