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Paine v. City of Chicago

October 26, 2006

KATHLEEN PAINE, AS GUARDIAN OF THE ESTATE OF CHRISTINA ROSE EILMAN, A DISABLED PERSON, PLAINTIFF,
v.
CITY OF CHICAGO, A MUNICIPAL CORPORATION, AND JOHN AND JANE DOES, UNKNOWN OFFICERS, AGENTS, SERVANTS AND/OR EMPLOYEES OF THE CHICAGO POLICE DEPARTMENT, DEFENDANTS.



The opinion of the court was delivered by: Magistrate Judge Maria Valdez

Honorable Mark Filip

JURY TRIAL DEMANDED MEMORANDUM OPINION AND ORDER

This is a civil rights action against the City of Chicago and individual unnamed police officers brought pursuant to 42 U.S.C. § 1983 and Illinois common law. On September 18, 2006 the district court entered an agreed protective order that, inter alia, prevented the parties from disseminating certain documents relating to allegations of police misconduct to third parties, including the press. Presently before this Court is a petition and a motion relating to this protective order: (1) Plaintiff's Petition for Adjudication of Claims of Confidentiality of Transcribed Statements ("Plaintiff's Petition") [Doc. No. 31], and (2) The Chicago Tribune's*fn1 Emergency Motion to Intervene and Challenge Protective Order ("Tribune's Motion") [Doc. No. 44]. For the reasons set forth below, the relief requested in Plaintiff's Petition is DENIED, and The Chicago Tribune's Motion is GRANTED, in part, and DENIED, in part.

I. BACKGROUND

A. Factual Background

Plaintiff Kathleen Paine, mother and guardian of the estate of Christina Rose Eilman, brings this civil rights action pursuant to 42 U.S.C. § 1983 and Illinois common law against the City of Chicago and unnamed individual police officers involved in the arrest, detainment, and release of her daughter. (Compl. ¶¶ 1-52.) Plaintiff alleges her 21-year-old daughter suffers from bipolar disorder and was arrested on May 7, 2006 for creating a disturbance at Chicago's Midway Airport and was released from custody the following evening. (Id. at ¶¶ 7, 10, 30.) Plaintiff alleges that the neighborhood surrounding the detaining police station is dangerous, and within hours of her daughter's release from police custody, she was abducted, sexually assaulted, and caused to fall seven stories from an apartment, suffering severe bodily injury and brain damage. (Id. at ¶¶ 34-36.)

B. Entry of Agreed Protective Order

On September 18, 2006 the district court entered an Agreed, Qualified HIPAA and Confidential Matter Protective Order (the "Agreed Protective Order") that, inter alia, prevented the parties in this matter from disseminating pretrial discovery designated as "confidential matter" to third parties, including the press. (See Doc. Nos. 28-29.) As defined in the Agreed Protective Order:

"Confidential Matter" shall mean employment, disciplinary, financial or other information that is of a sensitive or non-public nature regarding plaintiff, defendant, non-party witnesses and non-party employees of the City of Chicago that may be subject to discovery in this action. "Confidential matter" includes, but is not limited to, personnel files, disciplinary actions, histories and related information that are protected by the Illinois Personnel Records Review Act (West 2004) and Section 7 of the Illinois Freedom of Information Act, 5 ILCS 140/1, et seq. (West 2004), personal and family information of police officers including residential information, and files generated by the investigations of complaints of misconduct by Chicago police officers (generally referred to as "Complaint Register" files). (Agreed Protective Order ¶ A.6) (emphasis added). Plaintiff concedes that "[d]uring the course of its investigation into this matter, the Chicago Police Department's Internal Affairs Division ('IAD') took no less than forty-seven oral statements from civilians and uniformed officers, sergeants, lieutenants and captains." (Plaintiff's Petition at 2.) These statements (hereinafter referred to as "IAD Statements") have been transcribed and produced to the Plaintiff as "confidential matter." (Id.) However, despite Plaintiff's concession, three days after the district court entered the Agreed Protective Order: (1) Plaintiff filed a petition before this Court arguing that the IAD Statements are not "confidential matter" under the provisions of the Agreed Protective Order, and (2) the Chicago Tribune (the "Tribune") published an article quoting Plaintiff's counsel, Jeffrey Singer, as saying:

There is no valid public interest served by the city concealing the statements of police officers and private citizen witnesses who observed what happened to Christina while in police custody . . . . Openness-not concealment-is the way the Chicago Police Department should proceed about this incident. Instead, we are faced with a department which prefers burying its dirty laundry as opposed to doing the right thing.

John Kass, Police failed her, and now Daley has too, Chicago Tribune, Section 1, September 21, 2006. Five days after the Tribune published this article, the Tribune filed a motion to intervene and challenge the Agreed Protective Order, specifically seeking "an Order: (a) finding that the IAD statements are not properly designated as 'confidential' under the Protective Order, and (b) modifying the Protective Order to exclude CR files." (Tribune's Motion at 14.)

II. DISCUSSION

A. Plaintiff's Petition for Adjudication of Claims of Confidentiality of Transcribed Statements

Plaintiff seeks an order from this Court finding that the IAD Statements are not governed by the Agreed Protective Order. (Plaintiff's Petition at 7.) Additionally, notwithstanding the fact that Plaintiff signed the Agreed Protective Order, it appears that she is now seeking to modify the order as being improper to the extent it governs any document relating to allegations of police misconduct: "Police misconduct, which is at the heart of Plaintiff's claims, should never be applied to a protective order and it cannot now be claimed as a basis for confidentiality." (Id.) First, as a preliminary matter, "the Court always is concerned by a contested motion which seeks to modify a stipulated protective order because that order was the product of an agreement between the parties." Vikase Corp. v. W.R. Grace & Co.-Conn., 1992 WL 13679, at *4 (N.D.Ill. January 24, 1992) (Rovner, J.). An agreed protective order may be viewed as a contract, and once parties enter an agreed protective order they are bound to its terms, absent good cause to modify or vacate the protective order. Kyles v. J.K. Guardian Security Services, 2006 WL 2349238, at *8 (N.D.Ill. August 15, 2006). "As with all contracts, the ultimate question is what was the parties' mutual intent. The answer to that question is to be found 'within [the protective order's] four corners, and not by reference to what ...


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