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City of Fairview Heights v. Orbitz

April 11, 2007


The opinion of the court was delivered by: Donald G. Wilkerson United States Magistrate Judge


Before the Court is the Motion for Protective Order (Doc. 109), filed by the City of Fairview Heights on March 9, 2007; the Amended Motion for Protective Order (Doc. 110), filed by the City of Fairview Heights on March 13, 2007; and the Motion for Protective Order on Behalf of Non-Party Witness (Doc. 112), filed by Mayor Gail Mitchell on March 13, 2007. For the reasons set forth below, these motions are DENIED.


Plaintiff the City of Fairview Heights, an Illinois municipality, filed this suit on behalf of a putative class of Illinois municipalities in order to redress Defendants' failure to pay taxes allegedly owed to Plaintiff City of Fairview Heights and other putative class members. Plaintiff's position, in a nutshell, is that Defendants - owners and operators of Internet travel sites*fn1 - unlawfully neglected to pay the full amount of hotel taxes due and owing under city ordinances. Plaintiff contends that Defendants accomplished this first by contracting with hotels and motels to resell their hotel rooms to consumers (at higher rates), and then by paying taxes only on the lower, contracted-for rates that Defendants paid to the hotels and motels themselves, not the higher rates paid by consumers.

The discovery in this suit has been, and likely will continue to be, contentious. This lawsuit is one of many lawsuits that allege similar conduct by the Internet travel companies and which are being defended all across the country. Defendants are more than vigorously defending these suits nationwide. The Court has been contacted on several occasions to help resolve disputes during depositions in this case and there is currently pending before the Court Defendants' Motion for Sanctions (Doc. 118), which requests sanctions against Plaintiffs for its conduct during depositions and the discovery process.

Beginning on March 9, 2007, Defendants took oral depositions in the City of Fairview Heights, deposing, among others, the Mayor of the City of Fairview Heights, Gail Mitchell. That deposition was both transcribed and videotaped. Following this deposition, the instant motions were filed, each requesting this Court to enter a protective order restricting disclosure of Mayor Mitchell's deposition testimony.

The issue before the Court is whether to issue a protective order prohibiting the disclosure of the video deposition of Fairview Heights Mayor Gail Mitchell until after the mayoral election in Fairview Heights on April 17, 2007, in which Mayor Mitchell is the incumbent candidate for mayor.*fn2 The City of Fairview Heights and Mayor Mitchell argue that they fear allowing public access to this deposition testimony before the April 17, 2007, Fairview Heights election, may result in "sound bites" being used out of context in an effort to embarrass the mayor during the final days and weeks leading up to the election.*fn3 They argue that the deposition of Mayor Mitchell is not a part of the public record and should be protected.

Defendants, on the other hand, contend that they have an absolute right to disseminate the deposition, and they do not deny the assertion, which Plaintiff has made, that Defendants intend to distribute this deposition to the media in an effort to influence the election. Defendants argue that (1) as a party to the litigation, it can use the discovery material as it sees fit unless those materials are subject to a protective order, (2) that Plaintiff has failed to offer any specific factual basis to support the relief they seek, and (3) even if a sufficient factual basis was offered, a balancing of the interests should result in a denial of the motion.


The Supreme Court has held that at common law, "pretrial depositions and interrogatories are not public components of a civil trial. Such proceedings were not open to the public at common law, Gannett Co. v. DePasquale, 443 U.S. 368, 389, 99 S.Ct. 2898, 2910, 61 L.Ed.2d 608 (1979), and in general, they are conducted in private as a matter of modern practice. See, id., at 396, 99 S.Ct. at 2913 (Burger, C.J., concurring); Marcus, Myth and Reality in Protective Order Litigation, 69 CORNELL L.REV. 1 (1983)." Seattle Times Co. v. Rhinehart, 467 U.S. 20, 33, 104 S.Ct. 2199, 2207, 81 L.Ed.2d 17 (1984) (footnote omitted). This is because discovery rarely takes place in public, but rather between private litigants in private places. Id. at 33 n. 19.

However, the Seventh Circuit has stated that while "[i]t is true that pretrial discovery, unlike the trial itself, is usually conducted in private, the public at large pays for the courts and therefore has an interest in what goes on at all stages of a judicial proceeding." Citizens First Nat. Bank of Princeton v. Cincinnati Ins. Co., 178 F.3d 943, 944 -945 (7th Cir. 1999) (internal citations omitted). Therefore, "[a]s a general proposition, pretrial discovery must take place in the public unless compelling reasons exist for denying the public access to the proceedings." American Tel. & Tel. Co. v. Grady, 594 F.2d 594, 596 (7th Cir. 1979).

FED. R. CIV. P. 26(c) provides the standard in deciding whether pretrial discovery may be protected from public access:

(c) Protective Orders. Upon motion by a party or by the person from whom discovery is sought, accompanied by a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action, and for good cause shown, the court in which the action is pending or alternatively, on matters relating to a deposition, the court in the district where the deposition is to be taken 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). Rule 26(c) therefore requires a showing of good cause for a protective order "that a deposition after being sealed be opened only by order of the court" or "that ... information not be disclosed or be disclosed only in a designated way...." Fed. R. Civ. P. 26(c)(6) and (7). If good cause does not exist within the meaning of ...

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