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VODAK v. CITY OF CHICAGO

KEVIN VODAK, et al., individually and on behalf of others similarly situated, Plaintiffs,
v.
CITY OF CHICAGO, et. al., Defendants.



The opinion of the court was delivered by: NAN NOLAN, Magistrate Judge

MEMORANDUM OPINION AND ORDER

This matter is before the Court on Plaintiffs' Second Motion to Compel Discovery. The Court has reviewed the contested documents and grants in part and denies in part plaintiffs' motion for the following reasons.

BACKGROUND

  On March 20, 2003, thousands of persons gathered at the Federal Plaza located at Jackson Avenue and Dearborn Street in Chicago to express concern and protest the commencement of the United States war on Iraq. Over 500 persons were arrested and approximately 200-300 people were detained on that date. In this civil rights putative class action, plaintiffs allege false detentions, arrests, imprisonments and injuries sustained by approximately 800 class members on March 20, 2003. Defendants deny the plaintiffs' allegations and maintain "that the police acted entirely reasonably in response to a situation where Plaintiffs, and the putative class, embarked upon a completely unauthorized and un-permitted march through the streets of Chicago, took over Lake Shore Drive, and repeatedly disregarded and violated their own agreements with police and police orders not to march in various locations." Defs' Resp. at 11. Request No. 27 of Plaintiffs' Demand for Production of Documents and Tangible Things sought production of any and all documents, notes, files, and reports pertaining to any information the defendants have on the Chicago Coalition Against War and Racism, the Autonomous Zone (A-Zone), the Iraq Peace Pledge, Not in My Name, Chicago-Indy Media, Andy Thayer, Chris Geovanis, and Daniel Romero. These groups, (with the exception of the Chicago Coalition Against War and Racism) and individuals (with the exception of Daniel Romero) were named by Lieutenant David Sobczyk in a Case Supplementary Report (the "Report") prepared by Detective Tony H. Jin and submitted on April 1, 2003. The Report includes Jin's summary of interviews with eight Chicago Police Department ("CPD") members "relative to the acts of civil disobedience occurring" on March 20, 2003 and "culminating in the mass arrests of 543 individuals." Report at 3.*fn1

  In their Supplemental Response to Plaintiffs' Request to Produce, defendants identified three files of the Chicago Police Department which "may contain documents responsive to some of plaintiffs' production requests." Defendants identified the files as Chicago Police Department Organized Crime Division, Intelligence Section, First Amendment Investigation files numbered 193-2003-01, 193-2003-2, and 193-2003-03 (the "First Amendment Files").

  DISCUSSION

  Plaintiffs seek an order directing defendants to produce documents contained in the three files and directing witnesses from the CPD to answer deposition questions regarding the details of these police investigations. Defendants object to production of the First Amendment Files on the ground of relevancy and argue that these files are subject to protection from disclosure by the law enforcement privilege. Defendants state that these three files contain information relating to internal police strategies and methods and the identity of undercover police officers. Defendants argue that disclosure of these files could result in substantial interference with future investigations, invade the privacy of individuals who were involved or identified in the investigations or threaten the safety of the undercover police officers. The Court addresses defendants' objections in turn.

  A. Relevance

  Federal Rule of Civil Procedure 26(b)(1) prescribes the scope of matters upon which a party may seek discovery. "Parties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party . . . Relevant information need not be admissible at trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." Fed.R. Civ. P. 26(b)(1). Trial courts have broad discretion in resolving matters relating to discovery. Patterson v. Avery Dennison Corp., 281 F.3d 676, 681 (7th Cir. 2002).

  Plaintiffs argue that the First Amendment Files are "relevant to show that Defendants did not arrest and/or prosecute Plaintiffs and putative class members for any illegal conduct on March 20th, but rather to punish and retaliate against them for exercising their First Amendment rights and expressing their opposition to the war in Iraq." Pls' Reply at 1. Specifically, plaintiffs argue that the First Amendment Files are relevant to their claims that: 1) their rights to speak freely and assembly were harmed in violation of their First Amendment and Illinois Constitutional rights; 2) defendants have a de facto policy and practice of infringing on individuals exercising their First Amendment rights as alleged in plaintiffs' Monell count; and 3) defendants conspired and agreed amongst each other to harass, intimidate, and retaliate against plaintiffs and putative class members for expressing their First Amendment rights and political beliefs as alleged in the state law conspiracy count. Plaintiffs also argue that information contained in the First Amendment Files may illustrate defendants' state of mind which is relevant to plaintiffs' request for punitive damages. See Marshall v. Teske, 284 F.3d 765, 772 (7th Cir. 2002) (holding plaintiff entitled to punitive damages in § 1983 false arrest case where it can be shown that a defendant officer's conduct was motivated by "evil intent or callous indifference to the plaintiff's federally protected rights."). Finally, plaintiffs contend that the defendant officers' states of mind are relevant to plaintiffs' state law claim for malicious prosecution. See Rodgers v. People's Gas, Light & Coke Co., 733 N.E.2d 835, 842 (Ill.App. 2000) (stating on a claim of malicious prosecution, "[i]t is the state of mind of one commencing the prosecution, and not the actual facts of the case or the guilt or innocence of the accused, which is at issue.").

  In response, defendants assert that the criminal investigations are irrelevant to the conduct that occurred on March 20, 2003 which provided the probable cause to make arrests at Chicago and Michigan Avenues. Defendants argue that a review of the documents reveals that the First Amendment investigations were directed solely at potential criminal behavior and not designed to interfere, harass, punish or retaliate against anyone for engaging in conduct protected by the Constitution. Defendants contend that there is nothing in the documents "that would even tend to show that Defendants have a de facto policy and practice of infringing on First Amendment rights." Defs' Sur-Reply at 6.

  The withheld 2003 First Amendment Files are relevant to plaintiffs' First Amendment, Monell, conspiracy, and malicious prosecution claims and their request for punitive damages. The files pertain to organizations identified by defendants as being present on March 20, 2003. Defendants may deny that the First Amendment files are relevant, but plaintiffs are entitled to discovery to test that denial. In finding these files relevant for purposes of discovery, the Court emphasizes that Lieutenant David Sobczyk noted in his interview with Detective Tony Jin "relative to the acts of civil disobedience" occurring on March 20, 2003 that the A-Zone, Not in Our Name, Iraqi Peace Pledge and Andy Thayer and Chris Geovanis of Chicago-Indymedia were present at the Federal Plaza on March 20, 2003 and that the A-Zone is "an affinity organization promoting radical civil disobedience." Plaintiffs are therefore entitled to any information defendants possess regarding the A-Zone which may form the basis for Lieutenant Sobczyk's opinion that it "promot[es] radical civil disobedience." Lieutenant Sobczyk stated in his affidavit dated June 25, 2004 that his opinion is based on his "personal observations of the conduct of persons representing themselves to be affiliated with the A-Zone at previous protests, including protests about the Trans-Atlantic Business Dialogue, and most importantly, during the events of March 20, 2003." Sobczyk Aff. at ¶ 27. Plaintiffs are not required to take Lieutenant Sobczyk's word for it when he claims that his opinion was not based on any information contained in the First Amendment Files. Rather, plaintiffs are entitled to information defendants possess regarding the A-Zone to test Sobczyk's credibility on cross-examination regarding his statements.

  Defendants also argue that reports in the files at issue which were generated after March 20, 2003 and reports on events occurring after that date are irrelevant to plaintiffs' claims that their rights were violated on March 20, 2003. Defendants note that none of the post-March 20, 2003 reports relates to any of the events that occurred on March 20, 2003. Defendants overlook the fact that the criminal prosecutions from March 20, 2003 were not dismissed until June of 2003. Post-March 20, 2003 documents ...


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