The opinion of the court was delivered by: Geraldine Soat Brown, United States Magistrate Judge
District Judge Joan B. Gottschall
MEMORANDUM OPINION AND ORDER
Before the court is Plaintiffs' Motion to Compel Discovery. [Dkt 63.] For the reasons set out below, the motion is granted, subject to a protective order. Defendants shall answer Plaintiffs' discovery regarding the location of the surveillance that defendants claim led to Plaintiffs' arrest, but that information shall be held "attorneys' eyes only" until further order of the court.
In this action under 42 U.S.C. § 1983 and state law, plaintiffs Shonique Sanders and Raketa McKay (collectively, "Plaintiffs") allege that on July 9, 2006, they were in Sanders' recently purchased car, and had pulled over near West Grenshaw Street and South Central Park Avenue in Chicago to speak to Sanders' brother. (Am. Compl. ¶¶ 8-10.) [Dkt 16.] According to Plaintiffs, some Chicago police officers ("Defendants") stopped Plaintiffs without reasonable suspicion, searched them and searched Sanders' car. (Id. ¶¶ 11-12.) Plaintiffs allege that they were then arrested, and Sanders' home was searched, all without probable cause. (Id. ¶¶ 18, 19, 32.) Sanders was charged with possession of cannabis, although those charges were subject to a nolle prosequi. (Defs.' Answer to Am. Compl. ¶¶ 20, 23.) [Dkt 24.] Defendant Officers O'Shaughnessy and D'Amato testified that they were conducting narcotics surveillance from an undisclosed location when they witnessed Sanders engage in a suspected drug transaction on the 3600 block of West Grenshaw. (Defs.' Jt. Resp. Pls.' Mot. Compel ("Defs.' Resp.") at 1-2.) [Dkt 78.] Plaintiffs contend that Defendants' testimony is a fabrication. In the present motion, Plaintiffs seek to compel Defendants to identify specifically that undisclosed surveillance location.
Plaintiffs had filed an earlier motion to compel Defendants to disclose the precise surveillance location. [Dkt 40.] In their response to that motion, Defendants argued that "the surveillance location privilege" protected that information from disclosure, and that Plaintiffs had not provided the court with a specific factual basis to justify compelling the information. (Defs.' Jt. Resp. at 4.) [Dkt 44.] Plaintiffs' earlier motion was denied without prejudice to Plaintiffs' renewing the motion following their depositions. [Dkt 49.] Plaintiff McKay and others were deposed, and Plaintiffs have now renewed their motion, citing in particular the depositions of defendant O'Shaughnessy and witness Barbara Cole. (See Pls.' Suppl. Mot. Compel.) [Dkt 74.] At the court's request, Plaintiffs provided a complete transcript of Ms. Cole's deposition. [Dkt 84.]
At the depositions of O'Shaughnessy and D'Amato, Plaintiffs' counsel inquired about Defendants' ability to observe the alleged drug transaction, including questions about where the officers were positioned. O'Shaughnessy and D'Amato testified that they witnessed the suspected drug transaction from a distance of 15 to 20 feet. (Defs' Resp., Ex. A, D'Amato Dep at 30; Pl.'s Mot., Ex. B, O'Shaughnessy Dep. at 26.) They further testified that they were inside a building, on the second floor, watching through a window. (D'Amato Dep. at 16, 38, 39; O'Shaughnessy Dep. at 20, 24, 26.) O'Shaughnessy testified that the surveillance spot was on the north side of the 3600 block of West Grenshaw. (O'Shaughnessy Dep. at 23.) D'Amato testified that from where he was, he could see Sanders' face. (D'Amato Dep. at 38.)
Significantly, D'Amato testified that the building where they were positioned was vacant, abandoned and open. (D'Amato Dep. at 27.) O'Shaughnessy testified that to his knowledge the building was not abandoned, but that the place where the officers conducted the surveillance was vacant, with no furniture. (O'Shaughnessy Dep. at 20, 23, 26. ) He said that they did not have to be let in to the building because the rear door was open and unlocked. (O'Shaughnessy Dep. at 23.) The officers did not get permission from a building owner, resident or manager to use the space as a surveillance location. (D'Amato Dep. at 27; O'Shaughnessy Dep. at 24.) O'Shaughnessy also testified that the location had not been used as a surveillance location prior to or after July 9, 2006. (O'Shaughnessy Dep. at 22.) O'Shaughnessy did not know of any plans by any officers to use that location in the future. (Id.) D'Amato, however, testified that he believed that the location is still being used for surveillance. (D'Amato Dep. at 89.) Defendants' counsel objected to, and instructed his clients not to answer, questions about the specific surveillance location. (D'Amato Dep. at 16; O'Shaughnessy Dep. at 25, 33.)
Plaintiffs assert that Defendants' testimony regarding their surveillance location, rather than clarifying the location, disclosed enough information to make Plaintiffs certain that no such location existed on the day in question. Plaintiffs cite the testimony of Ms. Cole, a resident of 3638 W. Grenshaw. (See Cole Dep. at 11-12.) Ms. Cole testified that she had lived at that address for 25 years, which included July 9, 2006. (Id. at 12.) She testified that her sister has lived on the second floor of her house for 3 to 4 years, also including July 9, 2006. (Id.) Ms. Cole also testified that there were no abandoned houses that fit Defendants' description of the location of Defendants' surveillance location. (Id. at 36-40.) Ms. Cole resided in her home on the date of Sanders' arrest, July 9, 2006.*fn1 (Id. at 37.) Ms. Cole also testified that on that date her mother resided at 3640 West Grenshaw, which is the house just to the west of Ms. Cole's, and that the three houses to the east of her home were also all occupied on that date. (Id. at 37-40.) Therefore, Plaintiffs assert, there were no abandoned houses that fit Defendants' description of their surveillance location on July 9, 2006, and Plaintiffs believe Defendants did not actually have such a surveillance location.
A. Surveillance Location Privilege
Defendants rely on their having witnessed Sanders' involvement in a drug transaction as the probable cause for arresting Plaintiffs and for conducting searches of Sanders' vehicle and home. Defendants' ability to see the claimed drug transaction is a major issue in this case. Defendants' refusal to disclose the precise location where they were at the time prevents Plaintiffs from obtaining full information about that part of the case.
Fed. R. Civ. P. 26(b)(1) allows a party to "obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense . . . ." The parties do not dispute that the information sought is relevant. Defendants argue instead that the information is not discoverable because it is privileged, and that Plaintiffs have failed to demonstrate their need for the information. Plaintiffs argue that even if the court ...