Szany v. Garcia et al

Filing 286

OPINION AND ORDER: The Court DENIES IN PART AND GRANTS IN PART Defendant, City of Hammond's Motion to Redact Transcript Hearing 245 . The Court orders the redactions as outlined. No other redactions shall be made. Signed by Magistrate Judge Joshua P Kolar on 8/19/2019. (tc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
DENISE SZANY,
Plaintiff,

)
)
)
v.
)
)
JAIME GARCIA and CITY OF HAMMOND, )
Defendants.
)

CAUSE NO.: 2:17-CV-74-PPS-JPK

OPINION AND ORDER
This matter is before the Court on Defendant, City of Hammond’s, Motion to Redact
Transcript of Hearing [DE 245]. The City of Hammond seeks to make redactions to the transcript
from the April 23, 2019 hearing in this case. The hearing was on a Motion for Sanctions filed by
Szany and a Motion for a Rule to Show Cause filed by the City of Hammond, which were referred
to the undersigned for a Report and Recommendation. No response to the Motion to Redact was
filed. For the reasons stated below, the motion is denied with one exception.
The public pays for the courts and, thus, has an interest in judicial records. Forst v.
SmithKline Beecham Corp., 602 F. Supp. 2d 960, 974 (E.D. Wis. 2009); accord Hicklin Eng’g,
L.C. v. Bartell, 439 F.3d 346, 348 (7th Cir. 2006) (“What happens in the federal courts is
presumptively open to public scrutiny.”), abrogation on other grounds recognized by RTP LLC v.
ORIX Real Estate Capital, Inc., 827 F.3d 689 (7th Cir. 2016). The general presumption that judicial
records are public is overridden when “the property and privacy interests of the
litigants . . . predominate in the particular case.” Citizens First Nat’l Bank v. Cincinnati Ins. Co.,
178 F.3d 943, 945 (7th Cir. 1999). “Any step that withdraws an element of the judicial process
from public view makes the ensuing decision look more like fiat and requires rigorous
justification.” Hicklin Eng’g, L.C., 439 F.3d at 348. However, “the presumption of public access

applies only to the materials that formed the basis of the parties’ dispute and the district court’s
resolution; other materials that may have crept into the record are not subject to the presumption.”
Goesel v. Boley Int’l (H.K.) Ltd., 738 F.3d 831, 833 (7th Cir. 2013) (internal quotation marks
omitted) (quoting Baxter Int’l, Inc. v. Abbott Labs., 297 F.3d 544, 548 (7th Cir. 2002)).
The City of Hammond organizes its redaction requests into three categories, albeit with
some overlap: references to allegations of generalized violence that fall outside of the Court’s
orders on relevance, hypothetical sexual misconduct that does not reflect actual allegations made
in this case, and a sworn affidavit by an ex-wife of Defendant Garcia.
First, the allegations of generalized violence pertain to allegations that Garcia improperly
used a Taser. The Court previously permitted documents regarding this alleged incident to remain
under seal. However, important to that decision was the fact that the allegations did not influence
a judicial decision. See (Op. & Order 2-3, ECF No. 208). Here, however, the allegations are part
of the Court’s analysis on the City of Hammond’s motion for rule to show cause. Thus, the
allegations have not merely “crept into the record.” Goesel, 738 F.3d at 833. Accordingly, the
presumption of public access applies.
As the City of Hammond notes, this presumption of public access can be overridden where
property and privacy interests predominate. Citizens First Nat’l Bank, 178 F.3d at 945. As the
Court has previously noted, “[t]here is undoubtedly a significant public interest in exposing police
misconduct,” Saunders v. City of Chicago, No. 12-cv-9158, 2017 WL 3082036, at *5 (N.D. Ill.
July 19, 2017), and “the public has a particularly strong interest in being informed about its public
officials, especially in the case of law enforcement officers,” Hutchins v. Clarke, 661 F.3d 947,
955 (7th Cir. 2011). On the other side of the equation, the City of Hammond does not assert any
particularly compelling property or privacy interest to counter the public interest.

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The Court explicitly stated in its prior decision sealing from public view information
regarding the Taser incident that the City of Hammond’s then-stated interest in ensuring that its
officer’s reputation is not unfairly or unjustly tainted by public disclosure—combined with the
deposition excerpts’ lack of influence in or contribution to the resolution of the underlying motion
for protective order—provided good cause to seal the deposition excerpts from public view that
pertain to matters outside of Szany’s complaint against Garcia. Here, where the information sought
to be redacted influenced and contributed to the Court’s analysis in its Report and
Recommendation on its underlying Motion for Sanctions and Motion for a Rule to Show Cause,
the information will not be redacted. The Court notes that the City of Hammond filed its Motion
to Redact prior to the Court’s Report and Recommendation (ECF No. 208) so it is understandable
why it advanced the arguments it did in its Motion to Redact. 1
The same analysis holds for the hypothetical misconduct raised by Szany’s counsel at the
hearing. This hypothetical misconduct is contained in the Court’s Report and Recommendation on
the City of Hammond’s motion for rule to show cause and influenced the Court’s recommendation
regarding the alleged violation of Indiana Rule of Professional Conduct 3.6. Thus, the presumption
of public access applies. Granted, the statements are only hypothetical—not allegations—and not
as connected to the merits of this case. But, the presumption of public access applies, and the City
of Hammond has not rebutted this presumption with any statement of a competing interest. There
is no good cause to seal these hypothetical statements from public view.
The final category is information said to be in a sworn affidavit. The Court did not use this
information in analyzing the underlying issues. In this context, the information “crept into the
record,” so the presumption of public access does not apply. Given the sensitive nature of the as-

1

References to the allegations of a use of a Taser were also included in the City of Hammond’s Brief in Support of a
Rule to Show Cause. See (Def.’s Br. Supp. 4, ECF No. 164).

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yet untested assertions and noting the lack of argument presented for public access, the Court finds
that the public’s interest in this information is outweighed and that there is good cause to permit
this redaction.
Based on the foregoing, the Court hereby DENIES in part and GRANTS in part
Defendant, City of Hammond’s Motion to Redact Transcript of Hearing [DE 245]. The Court
orders that the words between “affidavit as to” and “and so forth” on lines 7-8 of page 53 of the
transcript of the April 23, 2019 hearing held in this case shall be REDACTED. No other redactions
shall be made.
So ORDERED this 19th day of August, 2019.
s/ Joshua P. Kolar
MAGISTRATE JUDGE JOSHUA P. KOLAR
UNITED STATES DISTRICT COURT

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