The opinion of the court was delivered by: Magistrate Judge P. Michael Mahoney
MEMORANDUM OPINION AND ORDER
This matter is before the court on a Motion to Stay Subpoena by a non-party to this lawsuit, Special Agent William Kroncke ("Kroncke") of the Illinois State Police ("ISP"). Oral arguments were heard on July 19, 2006. Written Responses to the Motion to Stay were invited, but declined. For the reasons stated below, Agent Kroncke's Motion is denied.
This case was filed on March 14, 2005 by Ryan Hallett ("Plaintiff") against Defendants Village of Richmond, Officer Quilici, the Village of Spring Grove, Officer Pilati, Officer Volstad, Jessica Thelen, Chief Regnier, Officer Alba, the Village of Fox Lake, Chief Gerretsen, Commander Norris, and Officer Dervi pursuant to 42 U.S.C. § 1983. Plaintiff's Second Amended Complaint alleges excessive force, assault and battery, Monell liability, failure to intervene, false arrest/unlawful detention, false arrest/false imprisonment, conspiracy, negligent hiring and supervision, denial of medical attention, spoliation, and respondeat superior/indemnification liability.
According to the Amended Complaint, Plaintiff stopped at a tavern in McHenry County on February 20, 2005. (Complaint, at para. 6). He allegedly observed Officers Quilici, Pilati, Volstad, and Thelen appearing intoxicated and in a dispute with his co-worker. (Id. at para 7). Plaintiff alleges that he attempted to leave the tavern after his co-worker left, but he was grabbed and handcuffed by Quilici, Pilati, Volstad, and Thelen. (Id. at para. 10-11). Plaintiff alleges that he was handcuffed and beaten by Quilici, Pilati, Volstad, and Thelen and left face down in mud. (Id. at 12, 14). Eventually, Plaintiff alleges, he was dragged back to the tavern while Quilici, Pilati, Volstad, and Thelen waited for back-up from local police. (Id. at 14). When Officers DeServi and Alba arrived, they allegedly destroyed evidence to cover-up Quilici, Pilati, Volstad, and Thelen's actions. (Id. at para. 18). Plaintiff alleges that a sham investigation by Fox Lake Police Officers led to Quilici, Pilati, Volstad, and Thelen being falsely absolved. (Id. at para. 22). Plaintiff also alleges that after he filed this civil lawsuit, Fox Lake Police Officers attempted to lodge criminal charges against him, but the McHenry County State's Attorney instead announced the indictment of Quilici, Pilati, Volstad, and Thelen on thirty-one felony counts. (Id. at para. 24, 27). Four of the defendants in this case, Quilici, Pilati, Volstad, and Thelen, are in fact also defendants in pending criminal actions based on the same incident underlying this civil lawsuit.
The parties in this case are nearing completion of fact discovery, which is set to close September 29, 2006. Dispositive motions are due October 31, 2006. Counsel represented at the most recent discovery hearing that several depositions must go forward before discovery can be completed. One such deposition is the deposition of Special Agent Kroncke, who apparently investigated the charges that led to the indictments of Quilici, Pilati, Volstad, and Thelen. (Kroncke's Mtn., at 1-2). Jessica Thelen, Defendant in both this civil case and her own criminal case, had a subpoena for deposition issued to Agent Kroncke on May 22, 2006. (Krocke's Mtn., at Ex. A). The deposition was originally set for June 16, 2006, but did not go forward. Counsels apparently mutually re-scheduled the deposition for a time convenient for all and set Kroncke's deposition for August 1, 2006.
Agent Kroncke and the ISP now move this court to delay Kroncke's deposition further by issuing a stay of the subpoena for deposition until the completion of the upcoming criminal trials, which all have trial dates scheduled in August and September 2006. Thelen's criminal trial is scheduled for September 25, 2006. (Kroncke's Mtn., at 2). Agent Kroncke testified previously in grand jury proceedings and he will testify at the upcoming criminal trials, including Thelen's trial. Kroncke requests a stay of his deposition for approximately three months in order to allow for the completion of his testimony in the criminal proceedings.
Kroncke asserts two bases of authority for this court to issue a stay of the subpoena for deposition in this case: (1) the law enforcement investigative privilege and (2) the court's discretion to defer civil proceedings pending completion of parallel criminal prosecutions. The court will consider each theory in turn below.
A. The Law Enforcement Investigative Privilege
Kroncke and the ISP have only tentatively asserted the law enforcement investigative privilege in this case, merely asserting that courts have previously prevented discovery while criminal proceedings are pending based on the law enforcement investigative privilege, and further asserting that Kroncke can submit to deposition without a lengthy delay because Quilici, Pilati, Volstad, and Thelen's criminal trials will likely be completed by October 2006.
(Kroncke's Mtn., at 3-4).
The party claiming the law enforcement investigative privilege bears the burden of justifying the application of the privilege. Doe v. Hudgins, 175 F.R.D. 511, 514 (N.D. Ill. 1997). To even assert the law enforcement investigative privilege, a "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." United States v. Winner, 641 F.2d 825, 831 (10th Cir. 1981); see also Holten v. City of Genoa, No. 02 C 50201, 2003 WL 22118941, at *2 (N.D. Ill. Sept. 12, 2003). If properly asserted, the court must balance the asserting party's need for secrecy against the opposing party's need for access to the information.*fn1 Kampinen v. Individuals of Chicago Police Dept., No. 00 C 5867, 2002 WL 238443, at *4 (N.D. Ill. Feb. 19, 2002); see also Holten v. City of Genoa, No. 02 C 50201 (N.D. Ill. June 6, 2006).
In this case, Kroncke and the ISP have failed to provide the court sufficient information to determine if the law enforcement investigative privilege has been properly asserted. They have further failed to explain with particularity the reasons that the information sought through Defendant Thelen's subpoena of deposition is privileged, so that the court could proceed with more than a superficial analysis of the Kampinen factors. As such, the court finds no justification for ...