The opinion of the court was delivered by: P. Michael Mahoney, Magistrate Judge, United States District Court.
Memorandum Opinion and Order
The McHenry County State's Attorney ("MCSA") has objected to the discovery requests of Judy Ostrowski ("Ms. Ostrowski") and Gary Ostrowski ("Mr. Ostrowski") (collectively "Plaintiffs"). The MCSA has moved to quash a subpoena seeking the prosecutorial file of Mr. Ostrowski and the Plaintiffs have cross-moved to compel the request. For the reasons set forth below, the MCSA's Motion to Quash is granted in part and denied in part.
This case arises out of the arrest of Ms. Ostrowski and an altercation between Mr. Ostrowski and the Spring Grove police. On December 9, 2000, while passing through Spring Grove in their car, Plaintiffs were both arrested. (Compl. at 2). Ms. Ostrowski was arrested for driving under the influence of alcohol, while Mr. Ostrowski was arrested for numerous criminal charges relating to his altercation with police as a result of his wife being arrested. (Compl. at 2-3). The MCSA brought charges against Mr. Ostrowski, but ultimately the charges were dropped by the MCSA. On July 17, 2002, Plaintiffs filed a seven count complaint pursuant to 42 U.S.C. § 1983 and § 1988 with jurisdiction based on 29 U.S.C. § 1331 and § 1343, alleging false arrest of Plaintiff Ms. Ostrowski, excessive force towards Mr. Ostrowski, false arrest of Mr. Ostrowski, custom and policy of Spring Grove, malicious prosecution of Mr. Ostrowski, battery of Mr. Ostrowski, and Respondent Superior. (Compl. at 1-7).
On October 24, 2002, the MCSA's office, after receiving a subpoena issued by Plaintiffs requesting the complete prosecution file, file jacket, witness statements, picture, and correspondence, filed an Objection and Motion to Quash ("Motion to Quash"). On November 4, 2002, Plaintiff filed a Motion to Compel and Request for Sanctions ("Motion to Compel") against the MCSA office. Additionally, on November 25, 2002, Plaintiffs filed Plaintiffs' Response to Gary Pack, McHenry Count State's Attorney's Objection and Motion to Quash ("Plaintiffs' Response"). The MCSA filed their Reply of McHenry Count State's Attorney ("MCSA's Reply") on December 4, 2002. The Magistrate Judge ordered an in camera inspection of the complete prosecution file on January 7, 2003.
The MCSA has asserted three objections in support of its Motion to Quash and its contention that the items sought by Plaintiffs are not discoverable.
1. Law Enforcement Privilege
Although not specifically termed as law enforcement privilege by the MCSA, the MCSA asserts that communications made to the MCSA are privileged communications because the MCSA "has the public policy of not disclosing communications with complaining witnesses, the police, defendants, and informers in order to encourage the free flow of information between prosecutors and the citizens, and to aid in the prosecution of criminal cases . . . ." (Mot. to Quash at 1). In support of this, the MCSA cites Vogel v. Gruaz, 110 U.S. 311, 4 S.Ct. 12 (1884), as holding that communications between the prosecutor and a complaining witness are protected by an absolute privilege. 110 U.S. at 314, 4 S.Ct. at 14.
Although never overruled, Vogel is by no means the current trend in the law. Generally, privileges are strongly disfavored because they are in derogation of the search for truth. See United States v. Nixon, 418 U.S. 683, 710 (1974). As such, privilege objections are narrowly construed. See 8 Wright, Miller & Marcus, Federal Practice and Procedure: Civil 2d § 2024, at 222-24 (2d ed. 1994). Rather than an absolute privilege, the law enforcement privilege is a qualified common law privilege incorporated under Fed.R.Civ.P. 26(b) whereby the Magistrate Judge must balance the need for secrecy against Plaintiffs needs for access to the information.*fn1 See Hernandez v. Longini, No. 96 C 6203, 1997 WL 754041, at *3 (N.D. Ill. Nov. 13, 1997); 6 Moore's Federal Practice, § 26.48 (Matthew Bender 3d. ed. 2002). The purpose of the law enforcement privilege is 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." Id. (quoting In re Dept. of Investigation of City of New York, 856 F.2d 481, 485 (2d Cir. 1988)).
However, before ruling on the privilege, the Magistrate Judge must determine if the MCSA has properly raised the law enforcement privilege. To assert the privilege, "the responsible official in the department must lodge a formal claim of privilege, after actual personal consideration, specifying with particularity the information for which protection is sought, and explain why the information falls within the scope of the privilege. See United States v. Winner, 641 F.2d 825, 831 (10th Cir. 1981); see also Hernandez, 1997 WL 754041, at *4; Pontarelli Limousine, Inc. v. City of Chicago, 652 F. Supp. 1428, 1431 (N.D. Ill. 1987). The MCSA has clearly not complied with these requirements. Even assuming the MCSA's brief can be considered a formal assertion, the MCSA has failed to provide a responsible official who has made a determination that the privilege is applicable. See Hernandez, 1997 WL 754041, at *4 ("Even if WCSA's brief on this motion is considered a formal assertion of privilege, there is no indication that a responsible official made the determination that the privilege is applicable in this case."); Pontarelli Limousine, 652 F. Supp. at 1431 ("[T]he responsible official, in this case the U.S. Attorney, must submit an affidavit stating that he has personally inspected the requested items and believes that they fall within the privilege.") Even more problematic, the MCSA has failed to provide, with any particularity, the information for which protection is sought. Rather, the MCSA has made a "sweeping generalization" as to all communications made to the MCSA. Hernandez, 1997 WL 754041, at *4 ("WSCA has merely provided the Court with sweeping generalizations as to the public interest in maintaining the confidentiality of these criminal files."); Pontarelli Limousine, 852 F. Supp. at 1431-32 ("The United States, far from explaining how each category contains privileged matters, merely claims protection as to them all without distinction.")
Even assuming the MCSA properly invoked the law enforcement privilege, the MCSA would still not prevail. Taking into consideration the ten factors used in evaluating a claim of law enforcement privilege, the Magistrate Judge finds the needs of Plaintiffs to outweigh those of the MCSA. First, the underlying criminal case against Mr. Ostrowski is closed and there is no indication from the MCSA that the criminal case is still being investigated or even possibly reinstated. Rather, as apparent from the criminal file, the charges have been dismissed. Additionally, the Magistrate Judge's in camera inspection of the materials provided by the MCSA reveals that the information contained therein is relevant and intertwined with Mr. Ostrowski's claim of malicious prosecution. Therefore, because the MCSA has failed to properly invoke the law enforcement privilege and, even if properly invoked, the needs of the Plaintiffs outweigh the burden on the MCSA, the MCSA's Motion to Quash, as to communications with complaining witnesses, the police, defendants, and informers, is denied.
2. Work Product Privilege
With regards to hand written notes, analyses, computer generated criminal history records and memoranda (including two letters in the file from the Spring Grove city attorney), the MCSA asserts a work product privilege objection. The MCSA believes that allowing the disclosure of these items would put a "chilling effect" on the prosecutors ability to gather information. (MCSA's Reply at 2). However, the extent of this chilling effect is not explained by the MCSA. Plaintiff, on the other hand, argues that the Magistrate Judge should perform a ...