United States District Court, N.D. Illinois, Eastern Division
November 18, 2004.
MADISON HOBLEY, Plaintiff,
CHICAGO POLICE COMMANDER JON BURGE, et al., Defendants. AARON PATTERSON, Plaintiff, v. JON BURGE, et al., Defendants.
The opinion of the court was delivered by: GERALDINE SOAT BROWN, Magistrate Judge
MEMORANDUM OPINION AND ORDER
Before the court is a motion filed by non-party deponents,
Peter Dignan, Michael Hoke, Tony Maslanka, George Basile, William
Wagner, Fred Hill, George Corless, Patricia Harrison, Thomas
Ferry, and Dan Gaffney, for entry of a protective order.*fn1
[Dkt 328.]*fn2 Non-party deponents Michael McDermott and Steven Brownfield sought leave to join the motion
for protective order [dkt 337], which this court granted on
November 1, 2004 [dkt 338.] For the following reasons, the
non-party deponents' motion for entry of a protective order is
GRANTED as to their request for a protective order barring
dissemination of deposition videotapes and transcripts. The
non-party deponents' request that Plaintiffs be barred from
commenting regarding their depositions will be the subject of a
The non-party deponents bringing the present motion
(collectively, the "Movants") are former Chicago Police
Department detectives who worked at Area 2 with or for Jon Burge
or other defendants in the Hobley and Patterson cases. (Mot.
at 2.) Apparently, the lawyers representing Hobley and Patterson
(collectively "Plaintiffs' counsel") have taken or are in the
process of taking the Movants' depositions in discovery in those
cases. The Movants state that, as a result of the on-going
investigation by the Special Prosecutor appointed by the Circuit
Court of Cook County regarding allegations of abuse at Area 2,
they have been required to assert their Fifth Amendment right to
decline to answer questions in their depositions. (Id. at 5.)
After the videotaped depositions of Burge and other defendants in
this case, a number of news stations broadcast portions of those
depositions showing Burge and others declining to answer
questions and asserting the Fifth Amendment privilege. (Id.)
The Movants claim that on September 30, 2004, they sent a letter
to Plaintiffs' counsel requesting that they agree to refrain from
disseminating the transcripts from the Movants' depositions and
refrain from making public comments regarding the deponents'
identity, testimony or credibility. (Mot. at 2; Mot., Ex.A.) The
Movants state that Plaintiffs' counsel never responded to the letter. (Mot. at 2.)
On October 4, 2004, movant Tony Maslanka was presented for his
deposition, at which time Plaintiffs' counsel indicated that they
would not agree to refrain from disseminating the Movants'
deposition transcripts and videotapes. (Id. at 2.) However,
Plaintiffs' counsel agreed not to disseminate any of the
deposition transcriptions and videotapes of the Movants'
depositions until the issue was resolved by the court. (Id.)
The Movants seek the entry of a protective order barring
Plaintiffs from releasing the videotapes and/or transcriptions of
their depositions in this cause to any third parties. (Id. at
1, 3.) They contend the "only purpose disclosure will serve is to
annoy, embarrass and oppress the Non-Parties." (Id. at 3.)
Plaintiffs oppose the entry of a protective order. (Pl.s' Joint
Resp. Non-Party Deponents' Mot. Protective Order ("Resp.") at 1.)
[Dkt. 345]. Plaintiffs argue that the Movants lack standing to
seek such a protective order, and that the Movants have failed to
apply the proper balancing test for withholding their deposition
transcripts and videotapes from the public and failed to cite any
case law that would support such a restriction in this case.
(Resp. at 1, 9.)
A. The Movants have standing to seek a protective order.
Federal Rule of Civil Procedure 26(c) allows the court to issue
a protective order "for good cause shown." That Rule provides:
"Upon motion by a party or by the person from whom discovery is
sought, . . . and for good cause shown, the court in which the
action is pending . . . may make any order which justice requires
to protect a party or person from annoyance, embarrassment,
oppression, or undue burden or expense . . ." Fed.R. Civ. P.
26(c). Plaintiffs do not seriously dispute the right of a subpoenaed
witness to seek a protective order. Instead, Plaintiffs argue
that because the Movants are not defendants in the Hobley or
Patterson cases, they have no interest in a fair trial in those
cases. (Resp. at 9.) However, the reason the Movants are invoking
their Fifth Amendment privilege is the on-going investigation by
the Special Prosecutor and the possibility of criminal charges.
(Mot. at 5.) The Movants have a protectable interest in a fair
trial on any criminal charges against them. The Movants also have
an interest in seeing that their assertion of the Fifth Amendment
is not excessively burdened or "costly." See La Salle Bank Lake
View v. Seguban, 54 F.3d 387, 389 (7th Cir. 1995) (citing
Spevack v. Klein, 385 U.S. 511, 515 (1967)).[fn2a] The fact
that the Movants are or were police officers does not limit their
Fifth Amendment rights. See Spevack, 385 U.S. at 516 (stating
that "[w]e find no room in the privilege against
self-incrimination for classifications of people so as to deny it
to some and extend it to others").*fn3 The Movants have
standing to bring the present motion.
B. Balancing the interests.
The party moving for a protective order must establish that
good cause exists to enter the protective order. Fed.R. Civ. P.
26(c). Good cause is difficult to define in absolute terms, but generally signifies a sound basis or legitimate need to take
judicial action. Wiggins v. Burge, 173 F.R.D. 226, 229 (N.D.
Ill. 1997) (citing In Re Alexander Grant & Co. Litig.,
820 F.2d 352, 356 (11th Cir. 1987)). Good cause is established by showing
that the disclosure will cause a clearly defined and serious
injury. Felling v. Knight, No. IP 01-0571-C-T/K, 2001 WL
1782360, *2 (S.D. Ind. Dec. 21, 2001) (Tinder, J.) In determining
whether there is good cause for a protective order, the court
must balance the interests involved. Doe v. Marsalis,
202 F.R.D. 233, 237 (N.D. Ill. 2001); Wiggins, 173 F.R.D. at 229.
As a threshold matter, it is important to note that the
Movants' motion does not relate to materials filed as part of
the public record in this case. The local rules of the Northern
District of Illinois prohibit the filing of discovery materials,
including deposition transcripts and videotapes, as part of the
public record except as evidence. L.R. 26.3. In Baxter Intl.,
Inc. v. Abbott Laboratories, 297 F.3d 544 (7th Cir. 2002), the
Seventh Circuit drew a distinction between materials generated by
pretrial discovery and materials that are in the public record
because they form part of the judicial decision-making process:
Secrecy is fine at the discovery stage, before the
material enters the judicial record. See Seattle
Times Co. v. Rhinehart, 467 U.S. 20 (1984). But
those documents, usually a small subset of all
discovery, that influence or underpin the judicial
decision are open to public inspection unless they
meet the definition of trade secrets or other
categories of bona fide long-term confidentiality.
297 F.3d at 545 (citations omitted). Accord Securities &
Exchange Comm'n v. The Street.com, 273 F.3d 222
, 233 (2nd Cir.
2001) (holding that deposition discovery materials are not
"judicial documents" because they play no role in the performance
of Article III functions, therefore, there is no presumption of
public access to them). Similarly, in Citizens First Nat'l Bank
of Princeton v. Cincinnati Ins. Co., 178 F.3d 943
, 944-45 (7th
Cir. 1999), the Seventh Circuit recognized the public interest in what goes on at all stages of a judicial proceeding,
but in the context of criticizing an order that permitted sealing
portions of the public record. The court held that the trial
judge must make a determination of good cause before entering an
order sealing materials that are in the public record.
Citizens, 178 F.3d at 945-46.
The parties dispute whether the presumption of public access to
discovery materials referred to by the Seventh Circuit in
Citizens, 178 F.3d at 945, survived the 2000 amendment of Rule
5 of the Federal Rules of Civil Procedure. As amended in 2000,
Rule 5(d) now provides that certain discovery materials,
including depositions, shall not be filed with the Clerk of the
Court until used in the proceeding or the court orders filing.
Fed.R. Civ. P. 5(d). However, what is implicit in Citizens and
explicit in Baxter is that the public interest in access to
materials that form the basis of a judicial decision is greater
than in other materials generated in the discovery process. Here,
the Movants' motion does not raise the issue of whether it
would be appropriate to order that any of the deposition
transcripts or videotapes at issue be filed under seal if they
were submitted to the court as evidence. What is at issue here is
the dissemination of the deposition transcripts and videotapes to
third persons, particularly to the media.*fn4
In Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984), cited
by the Seventh Circuit in Baxter, the United States Supreme
Court considered the issue whether parties to civil litigation
have a First Amendment right to disseminate, in advance of trial,
information gained through the pretrial discovery process. The
Supreme Court held that the First Amendment does not preclude
court control over discovered information, stating that "pretrial
depositions and interrogatories are not public components of a civil trial. Such proceedings were not
open to the public at common law, . . . and, in general, they are
conducted in private as a matter of modern practice." Seattle
Times, 467 U.S. at 32-33. The Court observed that "[m]uch of the
information that surfaces during pretrial discovery may be
unrelated, or only tangentially related, to the underlying cause
of action. Therefore, restraints placed on discovered, but not
yet admitted, information are not a restriction on a
traditionally public source of information." Id. at 33.
The Supreme Court further concluded that an order prohibiting
dissemination of discovery materials prior to trial is not the
type of classic prior restraint requiring exacting First
Amendment scrutiny. Id. at 33-34. However, Justices Brennan and
Marshall, concurring, stated that review of such orders must
consider First Amendment concerns. Id. at 37-38 (Brennan and
Marshall, JJ., concurring). The Court's opinion noted that the
order under review did not prohibit dissemination of information
gained through means independent of the court's processes, and,
therefore, the parties' First Amendment rights were less
implicated. Id. at 34. Importantly, the present motion involves
only materials obtained through the litigation process,
specifically, the depositions of the Movants. It does not involve
any material that Plaintiffs obtained from any other source.
In arguing that there is good cause for the entry of a
protective order, the Movants assert that the exercise of their
right under the Fifth Amendment and their right to privacy would
be harmed by the public dissemination of their deposition
transcripts and videotapes. (Mot. at 5-6.) They are concerned
that Plaintiffs' counsel will release the tapes and transcripts
of their depositions, which show the Movants asserting the Fifth
Amendment privilege in response to questions by Plaintiffs'
counsel, in order to portray them unfairly as asserting their
Fifth Amendment right in order to conceal misconduct. (Id. at
5.) At the oral argument on the present motion, Plaintiffs'
counsel did not deny that was the effect of the dissemination, although
Plaintiffs' counsel would, no doubt, dispute whether the portrait
is "unfair." Plaintiffs' counsel was candid in saying that the
purpose of disseminating the transcripts and videotapes to the
media was to increase public interest in the cases, in the hope
of encouraging witnesses to come forward, but also to create
public pressure on the City of Chicago to stop providing defense
counsel to the individual defendants in these cases.
Significantly, the Movants correctly point out that there is no
additional information about the Hobley or Patterson cases
that is provided in their depositions, other than the fact of
their invoking the Fifth Amendment. Thus, it is apparent that the
purpose of the dissemination is to capitalize on the Movants'
assertion of the Fifth Amendment as creating an inference of
Some history is instructive at this point. Earlier in the
Hobley case, the individual defendants sought to stay the
taking of their depositions until the conclusion of the Special
Prosecutor's investigation. (Def.s' Mot. Stay Taking Def.s' Deps.
at 4.) [Dkt 96.] It is recognized that allowing a civil case to
proceed against a defendant who also may be subject to criminal
prosecution involving the same matter may undermine the
defendant's Fifth Amendment privilege. See Cruz v. County of Du
Page, No. 96 C 7170, 1997 WL 370194, *1-2 (N.D. Ill. June 27,
1997) (Coar, J.), quoting Securities & Exchange Comm'n v.
Dresser Indus., Inc., 628 F.2d 1368, 1376 (D.C. Cir. 1980). Such
a situation forces the defendant to choose between defending the
civil lawsuit and abandoning his Fifth Amendment rights. Over
Hobley's objection, the individual defendants' depositions were
stayed for a time to see whether a schedule for the Special
Prosecutor's investigation would be established. (Order, Jan. 21,
2004.) [Dkt 104.] When it became apparent that no end date for
the investigation would be established, the stay was lifted and
the depositions proceeded. In light of the circumstances of this
case, especially Hobley's interest in not having the lawsuit
stalled indefinitely, the court determined that the depositions should proceed,
notwithstanding the burden placed on the individual defendants'
assertion of their Fifth Amendment privilege. (Order, June 30,
2004.) [Dkt 254.]
In considering the Movants' motion, however, the court finds
that the Plaintiffs have not set forth an offsetting interest to
justify imposing an additional "cost" on the Movants' assertion
of their constitutional right.
The dissemination of the videotaped depositions for
broadcasting is particularly troubling. The video of a person
repeatedly invoking the Fifth Amendment in response to a series
of questions is indeed striking, which is why it makes such a
good "soundbite." If the Special Prosecutor's investigation
results in criminal charges against the Movants, the prosecutor
would be forbidden from even alluding to the fact that the
defendant declined to testify. But if the deposition video is
broadcast on the local news, a large segment of the potential
jury pool will have been exposed to the memorable image of the
defendant doing just that.
In arguing that a protective order should not be granted,
Plaintiffs cite a number of cases that have lifted protective
orders and allowed the dissemination of discovery materials.
Notably, most of these cases had been disposed of when the court
lifted the protective order. See, e.g., Jones v. Clinton,
12 F. Supp. 2d 931, 934-35 (E.D. Ark. 1998) (allowing dissemination of
deposition transcripts after granting summary judgment, but
barring dissemination of videotapes); Marsalis,
202 F.R.D. at 234 (lifting protective order after lawsuit settled); Wiggins,
173 F.R.D. at 227 (releasing disputed documents after settlement
of lawsuit). None of those cases cited by Plaintiffs involved
broadcasting the invocation of the Fifth Amendment by persons
concerned about a pending criminal investigation. Even in the single case cited by Plaintiffs where deposition
transcripts were released prior to the termination of the case,
the video recordings were protected. See Felling, 2001 WL
1782360, *3. The court observed that "[v]ideotapes are subject to
a higher degree of potential abuse than transcripts. They can be
cut and spliced and used as `sound-bites' on the evening news . . .
The potential embarrassment the Non-Parties would suffer at
seeing their deposition performances displayed repeatedly during
media accounts of [defendant] constitutes good cause and requires
this court to grant the Non-Parties' motion for a protective
order for the videotapes." Id. See also Jones v. Clinton,
12 F. Supp. 2d at 935.
There is no doubt that the public has a strong and proper
interest in the Hobley and Patterson cases. However, it is
also important to remember that what is at issue here is the
assertion of a constitutionally-protected privilege. Considering
all the facts and circumstances, and balancing the respective
interests, this court find that Movants have shown good cause for
the entry of a protective order to bar Plaintiffs and their
counsel from disseminating the videotapes and transcripts of the
For the foregoing reasons, the Movants' motion for entry of a
protective order is granted as follows: The transcripts and
videotapes of the Movants' depositions shall be held confidential
with access to those depositions limited to (a) attorneys of
record in the Hobley and Patterson case and the attorneys
representing the Movants; (b) the staff of those attorneys under
the attorneys' direct supervision and responsibility, and (c) the
parties to the case and the individual Movants. In the event any
party or other person seeks to file a portion or excerpt of any
Movant's deposition as part of the public record, counsel preparing the filing shall
notify counsel for the deponent sufficiently in advance so that
the deponent may, if the deponent chooses, seek a further
IT IS SO ORDERED.