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Patterson v. Burge

July 24, 2007


The opinion of the court was delivered by: Judge Joan B. Gottschall

Magistrate Judge Geraldine Soat Brown


Before the court is Defendant Richard A. Devine's Emergency Motion for a Protective Order. [Dkt 572.] For the reasons set out herein, the motion is granted in part and denied in part.


Understanding the pending motion requires some background. This is actually defendant Richard Devine's second emergency motion for a protective order. Devine filed his first emergency motion for protective order in December 2006, after plaintiff Aaron Patterson filed on the public record disclosures pursuant to Fed. R. Civ. P. 26(a)(1) that Patterson had been ordered to make to supplement his previous Rule 26(a)(1) disclosures. (Def. Richard Devine's Emergency Mot. Protective Order.) [Dkt 563.] Devine's first emergency motion argued that portions of Patterson's supplemental disclosures (the "November 2006 Disclosures") were false and were filed publicly in order to harass and embarrass Devine and others. (Id. at 2.) Because filing discovery is expressly prohibited by Local Rule 26.3 of this District, Patterson's November 2006 Disclosures were ordered removed from the public file. (Order, Dec. 6, 2006.) [Dkt 565.]

The present motion seeks a much broader protective order. Devine's proposed protective order would limit the parties' public discussion of specific paragraphs and lines of Patterson's November 2006 Disclosures, and restrict dissemination of transcripts and videotapes of future depositions, as well as transcripts and videotapes of Devine's previously-taken deposition. (Richard A. Devine's Suppl. Mem. Supp. Mot. for Protective Order, Ex. A at 2-4.) [Dkt 675.]*fn1 It would also require that any filing in this case or the cases consolidated with it for discovery that "referenc[es] or disclos[es] in any manner the subject matter or contents of the Subject Disclosures" be under seal, and that transcripts of future depositions and Devine's deposition be held under seal. (Id.)*fn2

Patterson's November 2006 Disclosures are his description of information and testimony Patterson believes various putative witnesses could provide. The "Subject Disclosures" to which the proposed protective order would apply are specific paragraphs and lines of those November 2006 Disclosures that, in essence, set out Patterson's belief that he is and has been the object of an ongoing conspiracy involving a large number of state, county, local and police officials. The relevance of some of the statements to the present case is far from clear.

It must be remembered, however, that the Subject Disclosures are not evidence of anything. They are merely Patterson's statement of what he believes about the witnesses. That is one of the reasons why discovery responses are not to be filed on the public record and why the November 2006 Disclosures were stricken from the record.

Patterson objects to the proposed protective order, arguing that the order is far too broad and that Devine and other public officials are subject to a higher level of public scrutiny. (Pl.'s Suppl. Mem. Supp. Pl.'s Objections at 2, 6.) Patterson proposes an alternative protective order that would govern "any public filing testimony or discussion" of: (a) his current federal criminal investigation, charges and conviction; (b) items currently subject to a protective order; and (c) information about a potential witness' or defendant's personal life "that has no relation to the substantive claims and issues in this case." (Id. Ex. A.)


Federal Rule of Civil Procedure 26(c) allows the court to issue a protective order "for good cause shown . . . to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense . . . ."

1. Proposed limitations on filing and discussion of the Subject Disclosures

A protective order was entered previously in this case and the other consolidated cases to govern the use of certain information obtained in discovery. (Protective Order, March 30, 2005.) [Dkt 245.] Notably, the protective orders sought by both Devine and Patterson in this case would go beyond the subjects of that Protective Order and impose limitations on public discussion of certain topics. Neither party has shown a need for such a step. The proposed protective orders would also require that filings discussing certain topics be held under seal. The Seventh Circuit has repeatedly emphasized that courts must exercise caution in deciding to seal judicial records and weigh the need for secrecy against the competing interests on a case by case basis. Jessup v. Luther, 277 F.3d 926, 928 (7th Cir. 2002) (collecting cases, and observing that discovery materials, in contrast, are "private documents").

Devine is concerned that Patterson or his counsel will represent in filings in this case that Patterson's claims about the witnesses listed in the Subject Disclosures are established facts. In the proceedings before this court on both the present motion and Devine's earlier emergency motion, Devine's counsel suggested an underlying concern that Patterson's motives here are less about prevailing in the underlying lawsuit than waging a publicity campaign about his political agenda. In defendant Devine's view, Patterson's public filing of the November 2006 Disclosures confirms that concern. Patterson's memorandum in opposition to the motion, which argues that the public has a ...

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