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Patterson v. Burge

February 6, 2007


The opinion of the court was delivered by: Geraldine Soat Brown, United States Magistrate Judge

Judge Joan B. Gottschall


Before the court is a motion filed by defendants Jon Burge, John Byrne, Joseph Danzl, Raymond Madigan, William Marley, Daniel McWeeny, James Pienta, and William Pedersen for entry of a protective order. (Defs.' Emergency Mot. for a Protective Order re Grand Jury Materials ("Mot.") at 1.) [Dkt 522.] For the following reasons, the defendants' motion for entry of a protective order is GRANTED.


Defendant Jon Burge is the former police commander of the Violent Crimes Unit of the Detective Division at Areas 2 and 3 for the City of Chicago. (Mot., Ex. A at 16.) The other defendants bringing the present motion (collectively with Burge, the "Movants") are former Chicago Police Department officers who worked at Areas 2 and 3 with or for Jon Burge. (See First Amended Compl. ¶¶ 3-6.) [Dkt 43.] Aaron Patterson, the plaintiff in this case, along with several other plaintiffs in lawsuits currently pending in the federal district court, alleges that he is a victim of police brutality and other misconduct perpetrated by the defendants. (See First Amended Compl. ¶¶ 23-41.)*fn1

On April 24, 2002, Presiding Judge Paul Biebel of the Cook County Criminal Court granted a petition for appointment of a special prosecutor to "investigate allegations of torture, perjury, obstruction of justice, conspiracy to obstruct justice, and other offenses by police officers under the command of Jon Burge at Area 2 and Area 3 Headquarters in the city of Chicago during the period from 1973 to the present." (Mot. at 1; Mot., Ex. A at 3.) The Office of the Special Prosecutor (OSP) impaneled a grand jury to gather evidence and to require the appearance of witnesses who refused to cooperate in the investigation. (Mot. at 1-2; Mot, Ex. A at 7.) Upon completion of the OSP's investigation in August 2006, Judge Biebel ordered the OSP to publish its findings and conclusions in a written report ("OSP Report"). (Mot. at 2; Mot., Ex. A at 16-17.) The OSP concluded that while there was evidence to suggest that police officers abused prisoners, the evidence in only three of the cases would support a conclusion of proof beyond a reasonable doubt.*fn2 (Mot., Ex. A at 16.) Nevertheless, the OSP concluded that the statute of limitations barred the prosecution of any officers involved in the allegations of police misconduct. (Mot., Ex. A at 13.)

Additionally, the OSP Report revealed that the OSP subpoenaed 40 Chicago police officers, including all Movants except Danzl,all but 11 of whom refused to testify. (Mot., Ex. A at 11, 14.) Movant McWeeny testified after the OSP granted him immunity from prosecution.

(Mot., Ex. A at 15.) The OSP Report does not reveal which other officers testified, nor does it disclose the subject matter of any testimony. (Mot. at 5.) Further, the OSP Report does not reveal which officers asserted their Fifth Amendment privilege not to testify. (Mot. at 5.)

On September 8, 2006, plaintiffs Hobley, Orange and Howard filed a motion in the Circuit Court of Cook County, requesting the release of grand jury materials, including transcripts of testimony of the Movantsand other Chicago police officers. (Mot. at 2, 4.) At a hearing on September 26, 2006, Judge Biebel authorized the release of the grand jury materials subject to any protective orders entered by the federal court. (Mot. at 3.) Notably, Patterson did not seek the release of the grand jury materials -- the subject matter of the current motion for entry of a protective order. (Mot. at 2.)

On October 11, 2006, the Movants filed this motion, seeking a protective order that would bar the parties from disseminating the grand jury transcripts of Chicago police officers who appeared before the grand jury pursuant to the OSP's investigation. (Mot. at 8.)*fn3 Although the Movants do not object to the use of the grand jury transcripts for the litigation of this case, they contend that public disclosure of the grand jury proceedings conflicts with the principles of grand jury secrecy, will harm their reputation, and will allow Patterson to exploit several officers' assertion of their Fifth Amendment privilege. (Mot. at 4-5.)

Pursuant to this court's October 12, 2006 order, any response in opposition to the motion had to be filed by October 20, 2006. [Dkt 524.] While the other plaintiffs in the parallel civil rights cases filed responses in opposition to the motion, Patterson did not respond.*fn4


Pursuant to Federal Rule of Civil Procedure 26(c), a court may issue a protective order. 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 . . . .

Good cause "is difficult to define in absolute terms, it 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) (quoting In re Alexander Grant & Co. Litig., 820 F.2d 352, 356 (11th Cir. 1987)); see also Hobley v. Burge, 225 F.R.D. 221, 224 (N.D. Ill. 2004) (good cause for a protective order is established when the disclosure will cause "a clearly defined and serious injury"). In analyzing whether good cause exists for entry of a protective order, the court balances the importance of disclosure to the public against the harm to the party seeking the protective order. Jepson, Inc. v. Makita Elec. Works, Ltd., 30 F.3d 854, 859 (7th Cir. 1994) (citation ...

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