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Maria Guzman, On Her Own Behalf, and On Behalf of v. City of Chicago

January 7, 2011

MARIA GUZMAN, ON HER OWN BEHALF, AND ON BEHALF OF HER MINOR SON, OSCAR O. GUZMAN, AND NUBIA GUZMAN, PLAINTIFFS,
v.
CITY OF CHICAGO, DEFENDANTS.



The opinion of the court was delivered by: Charles P. Kocoras, District Judge:

MEMORANDUM OPINION

This matter is before the Court on the motion of Plaintiff Maria Guzman ("Guzman") to compel the production of evidence from Defendant City of Chicago ("the City"). For the reasons set forth below, Plaintiffs' motion to compel is denied.

BACKGROUND

On April 14, 2010, Guzman filed a first amended complaint on behalf of her minor son, Oscar Guzman ("Oscar"), asserting a number of claims against the City and Chicago Police Officers Terry Southard ("Southard"), Sam Lopez ("Lopez"), and Police Sergeant Andre Hasan ("Hasan"). Guzman's complaint contains a number of causes of action under 42 U.S.C. § 1983, including excessive force, false arrest, unlawful detention, failure to intervene, and conspiracy to violate Plaintiffs' constitutional rights.

Guzman also asserts state-law claims of intentional infliction of emotional distress, assault, battery, false imprisonment, respondeat superior, and indemnification.

Guzman alleges that on April 22, 2009, Oscar, an autistic adolescent, was standing in front of his family's restaurant in Chicago when Officers Southard and Lopez pulled up and chased Oscar into the restaurant. Guzman further alleges that while in the process of pursuing Oscar, Officer Southard ignored Guzman's warnings that her son was autistic, pushed her husband to the ground, seized Oscar, and beat him on the head with a metal baton. Guzman further alleges that Sergeant Hasan threatened Oscar's sister in response to inquiries from the family.

After Guzman filed her complaint, the Independent Police Review Authority ("IPRA"), a City of Chicago agency responsible for conducting independent investigations of police misconduct, opened an investigation into the incident. On May 14, 2010, this court ordered IPRA to produce all documents related to the investigation into the complaint lodged by Guzman. IPRA produced the file documenting IPRA's investigation and has continuously produced updates to the file as the investigation proceeded. During the discovery stages of the proceedings, Guzman issued deposition notices to four IPRA employees. In September 2010, in the presence of counsel for Defendants, Guzman deposed IPRA investigator Roberto Soto regarding his questioning of Oscar about the incident at issue. On October 26, 2010, Guzman deposed the primary IPRA investigator of the Guzman incident, Maira Webb ("Webb"). During the deposition, Webb followed her counsel's instructions and refused to answer several questions by asserting the "deliberative process privilege." After Webb's deposition, Guzman's counsel sent a correspondence to his counterpart arguing that the privilege was improperly asserted. Counsel for the City replied that the deponents would continue to assert the privilege during the next two scheduled depositions. Based on the City's counsel's statement, Guzman's counsel decided to cancel the remaining depositions. Guzman is now asking this court to compel the City to produce Webb and the remaining deponents and to have them answer the questions posed.

LEGAL STANDARD

Fed. R. Civ. P. 26(b)(1) states that "parties may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense." Under Fed. R. Civ. P. 26(b)(5)(A), a party claiming that otherwise discoverable information is privileged or subject to protection must expressly make that claim and describe the nature of unproduced materials in a manner that, without revealing the privileged or protected information itself, will enable others to assess the claim. Thus, "the burden rests upon the objecting party to show why a particular discovery request is improper." Kodish v. Oakbrook Terrace Fire Prot. Dist., 235 F.R.D. 447, 450 (N.D. Ill. 2006). Questions of privilege that arise in the course of the adjudication of federal rights are governed by federal common law principles. Fed. R. Evid. 501; see also U.S. v. Zolin, 491 U.S. 554, 562 (1989). As with all discovery matters, district courts have broad discretion in determining motions to compel. See Peals v. Terre Haute Police Dept., 535 F.3d 621 (7th Cir. 2008). With these principles in mind, we turn to the motion at hand.

DISCUSSION

Guzman asks the court to compel the City to produce investigator Webb and the remaining witnesses for questioning because the deliberative process privilege does not apply under the circumstances.

Guzman argues that the City has not properly invoked the privilege because it has not timely filed an affidavit precisely describing the privileged material. To assert the deliberative process privilege, the government agency has to satisfy three elements: (1) the department head with control over the matter must make a formal claim of privilege, after personal consideration of the problem; (2) the responsible official must demonstrate, typically by affidavit, precise and certain reasons for preserving the confidentiality of the documents in question; and (3) the official must specifically identify and describe the documents. Parvati Corp., v. City of Oak Forest,2010 WL 2836739, at *5 (N. D. Ill. 2010); Walden v. City of Chicago, 2009 WL 3679672, at *3 (N. D. Ill. 2009).

After examination of the record before us, we conclude that the City has complied with the procedures necessary to assert the privilege. Although the affidavit of IPRA's Chief Administrator, Ilana Rosenzweig ("Rosenzweig"), was first submitted by the City in its response to the motion to compel, failure to timely provide the affidavit is not fatal to the claim of privilege. Parvati, 2010 WL 2836739, at *5; Tumas v. Bd. of Educ. of Lyons Twp. High Sch. Dist., 2007 WL 2228695, at * 8 (N. D. Ill. 2007). Rosenzweig, IPRA's highest-ranking official, has expressly claimed the privilege and provided a justification for its assertion, namely that secrecy would protect the integrity of the investigation. Additionally, Rosenzweig has specifically identified which documents and communications are protected: conversations taking place among Webb, her supervisor Kevin Connolly, and coordinator Carlos Weeden, regarding the investigation's recommended findings, recommended discipline, and their closely intertwined facts.

Guzman also contends that the City waived the deliberative process privilege by disclosing the IPRA investigation file. Privileges relating to governmental decision-making can be waived if the disclosure is voluntarily made to a non-federal party. Patterson v. Burge, 451 F. Supp. 2d 947, 956 (N. D. Ill. 2006). In addition, the disclosure of documents only waives the privilege for "the document or information specifically released, and not for related material." Id. Here, the City was ordered by the court to produce IPRA's investigation file and hence did not disclose the documents on a voluntary basis. Furthermore, the release of Webb's summary report does not waive the protection afforded by the deliberative process ...


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