The opinion of the court was delivered by: Magistrate Judge Maria Valdez
MEMORANDUM OPINION AND ORDER
The issue before this Court concerns discovery requests by Plaintiffs to delve into the reliability of a confidential informant's information conveyed to defendant Officer Purkiss (hereinafter "Purkiss") and relied upon in procuring a search warrant. Specifically, Plaintiff moves to compel Purkiss to reveal the confidential informant's identity, to require Purkiss to answer deposition questions on the informant and to take the deposition of the judicial officer who signed the search warrant. [Doc No. 75].
On November 11, 2004, a judicial officer for the Circuit Court of Cook County signed a warrant to search the premises located at 3340 W. Douglas, 2nd Floor of a brick two-flat residence in Chicago. The search warrant listed Levarus Grayer as the probable occupant of the residence and possession of weapons as the probable offense. Most of the information detailed in the affidavit in support of the warrant came from a confidential informant, or as Purkiss calls him a "John Doe." According to the search warrant affidavit, the confidential informant told defendant Purkiss that the one day prior the informant had been at the 3340 W. Douglas, 2nd Floor location, had met with Levarus Grayer at that location and was shown weapons by Grayer. In addition to this information, Purkiss checked the criminal history of Grayer and determined that Grayer had used the address on the warrant as his residence in the past. Purkiss also drove by the location and verified its existence. Purkiss used this information in his affidavit in support of the warrant. Before signing the warrant the judicial officer personally questioned the informant.
The warrant was subsequently executed at 3340 W. Douglas, 2nd Floor, but neither weapons nor Levarus Grayer were found in the 2nd floor apartment. In addition to the search of the 2nd Floor apartment, Plaintiffs allege that defendants undertook a search of the 1st Floor unit and the basement area.
The Invocation of the Informer's Privilege
On March 8, 2007, Plaintiffs took the deposition of Purkiss.*fn1 At the deposition, Purkiss refused to answer a number of questions relating to the confidential informant by invoking the doctrine of "informer's privilege." According to the Plaintiffs, the Purkiss refused to answer deposition questions concerning both the identity of the informant and the reliability of the informant. Defendants assert that any further questioning of Purkiss on the details of his interaction with the informant would disclose the informer's identity. Plaintiffs move to compel Purkiss to answer questions on both the informant's identity and the reliability of the informant as relevant to what Purkiss knew at the time he applied for the warrant and whether the confidential informant's information was sufficiently reliable.
Although Purkiss refused to answer certain questions, he did provide some information on the confidential informant. Through discovery, Plaintiffs received the application for the search warrant including the Purkiss affidavit. Also, Plaintiffs are aware that Purkiss testified that the informant was new to him -- that he had not used the informant before or since. (Plts.' Mem., Ex. C, 69:13-15). Plaintiffs were also advised that the judicial officer personally questioned the informant before signing the search warrant.
According to Plaintiffs, Levarus Grayer did not reside at the warrant location. This, coupled with the fact that no weapons were found in the apartment, suggests to the Plaintiffs that the informant was unreliable. As a result, Plaintiffs move to compel Defendants to reveal the identity of the informant, to question Purkiss on the reliability of the informant and to take the deposition of the judicial officer who signed the warrant.
Federal Rule of Civil Procedure 26 provides that "parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action." Fed. R. Civ. P. 26(b)(1). As an initial matter, therefore, all relevant material is discoverable unless an applicable evidentiary privilege is asserted. Here, Defendants have invoked the "informer's privilege" which provides a limited privilege for law enforcement to withhold disclosure of an informer's identity. Roviaro v. United States, 353 U.S. 53, 60 (1957). In Roviaro, the Supreme Court addressed the public interest in protecting the identity of confidential informants in order to encourage the flow of information necessary in criminal prosecutions. Id. at 59. The Court expressly limited the scope of this privilege and held that the interest in anonymity must give way when disclosure "is essential to the fair determination of a cause." Id. at 61. Although Roviaro considered the issue in the criminal context, the analysis applies in the civil context as well. Olson v. Tyler, 771 F.2d 277, 281 (7th Cir.1985). Further, the Seventh Circuit has cautioned that "[i]n civil cases the privilege, which limits the right of disclosure usually called for by the Federal Rules of Civil Procedure, is arguably greater . . . since not all constitutional guarantees which inure to criminal defendants are similarly available to civil defendants." Dole v. Local 1942, IBEW, 870 F.2d 368, 372 (7th Cir. 1989) (internal citations omitted).
Defendants may rely upon this privilege without making any preliminary showing to assert the privilege. Id. The Plaintiffs may overcome the privilege upon a showing that their need for the information outweighs the government's entitlement to the privilege. Id. at 372-73. The confidential informant privilege "will not yield to permit a mere fishing expedition, nor upon bare speculation that the information may prove useful." Id. at 373.
Thus, Plaintiffs have a crucial burden. They attempt to overcome the privilege in order to "seek discovery of the reliability and veracity of the informant and the information he allegedly gave, in order to be able to further pursue [Plaintiffs'] claim that the police had 'reckless disregard for the truth' when submitting the affidavit to the court in support of a search warrant." (Pls.' Mem. 7). In this case, Plaintiffs are challenging the validity of the search warrant. In order to do so, Plaintiffs must overcome the presumption of validity of the search warrant and show that the affiant, officer Purkiss, knowingly and intentionally, or with reckless disregard for the ...