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Margaret Wright v. Mary Ellen Bullock

September 29, 2011

MARGARET WRIGHT, PLAINTIFF
v.
MARY ELLEN BULLOCK, ET AL, DEFENDANTS



The opinion of the court was delivered by: John A. Gorman United States Magistrate Judge

E-FILED

Thursday, 29 September, 2011 03:46:12 PM Clerk, U.S. District Court, ILCD

ORDER

Now before the Court are two motions to compel (#110 and 113) filed by Plaintiff. The motions are fully briefed, and I have heard argument from the parties. As stated herein, the motion as to CASA is DENIED, and ruling on the motion as to DCFS is DEFERRED.

MOTION TO COMPEL AGAINST CASA

The first motion (#110) is directed to non-party Court Appointed Special Advocates of Peoria County ("CASA"), seeking enforcement of a subpoena sent to CASA Executive Director Pam Perrilles. The subpoena sought production of certain documents, including copies of reports and documents submitted to the Circuit Court of Peoria County in a particular juvenile court proceeding. The subpoena included a copy of the Protective Order that governs production of documents in this case and a cover letter indicating that the records would be handled in accordance with that Protective Order.

Perrilles responded with a letter in which she stated that the documents sought were confidential and protected by the Illinois Juvenile Courts Act, which generally prohibits access to, inspection of, and copying of juvenile court records.

Plaintiff then filed this motion, asserting that the Juvenile Court Act applies only to the documents that are contained in the court file and not to copies of those documents in the possession of third parties.

The Juvenile Court Act of 1987, 705 ILCS 405/1-8, restricts inspection and copying of "juvenile court records relating to a minor who is the subject of a proceeding under this Act" to specified individuals and agencies, none of which is the attorney in a civil matter not before the juvenile court. The Act specifically provides that juvenile court records are not available to the general public absent a court order by the court presiding over the juvenile matter.

According to Plaintiff, however, copies of documents in the court file do not become privileged under the Act simply because they were filed in the court's file. These records, asserts Plaintiff, "have an independent life from the copy presented to Juvenile Court and made part of its court records."

No one disputes CASA's description of its mission or function. It is a non-profit volunteer organization that advocates for the best interests of abused and neglected children in the court system. A CASA volunteer is appointed by the judge in the juvenile court proceedings, and the volunteer serves as an officer of the Court. He or she gathers information for the court and makes recommendations about what the child needs to be safe. This information and recommendation are set forth in reports that the volunteer files with the court.

The documents sought are not just any random documents, nor are they documents prepared by some third party with no connection at all to the court. They are prepared by officers of the court for the knowledge of the court and the use of the court in the juvenile proceeding before it. They do not have a life outside of the court file, at least not in the way that Plaintiff asserts that they do. I find that these documents are protected by the Juvenile Court Act.

Plaintiff next asserts that this state privilege is not cognizable in federal proceedings. Fed.R.Evid. 501 provides that privileges are "governed by the principles of the common law as they may have been interpreted by the courts of the United States in the light of reason and experience."

In Memorial Hospital for McHenry County v. The Honorable Milton I. Shadur, 664 F.2d 1058 (7th cir. 1981), the Court considered whether to recognize a privilege that arose under the Illinois Medical Studies Act. Noting that federal courts should neither automatically reject nor automatically apply a state privilege, the Court discussed various considerations that should be taken into account in deciding whether to honor the privilege. "A strong policy of comity between state and federal sovereignties impels federal courts to recognize state privileges where this can be accomplished at no substantial cost to federal substantive and procedural policy." Id. at 1061. ...


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