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Bryce R. Scott v. City of Peoria

October 26, 2011


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

E-FILED Tuesday, 25 October, 2011 04:07:12 PM Clerk, U.S. District Court, ILCD


Now before the Court is the Plaintiff's Motion to Compel (#57). The motion is fully briefed, and I have carefully considered all of the submissions of the parties. For the following reasons, the Motion to Compel is GRANTED.


In this case, Plaintiff alleges that the individual defendants were involved in the use of excessive force during a traffic stop. In addition to the individual liability of the police officers, Plaintiff has asserted a Monell claim against the City of Peoria.

The underlying events resulted in an internal investigation conducted by the Peoria Police Department. Plaintiff has sought to obtain the documents relating to that investigation. Defendants initially asserted a blanket "self-critical analysis privilege." After months during which the parties attempted to resolve the dispute, Defendants produced a privilege log and asserted a second privilege, the "executive privilege." In addition, Defendants have challenged the relevance of some of these documents.


The Federal Rules of Civil Procedure provide that parties "may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense." Fed.R.Civ.P. 26(b)(1). A party declining to produce discovery on the grounds that it is privileged has the burden of establishing the existence of the privilege as well as its applicability in the particular situation. Bank of America v. Veluchamy, 643 F.3d 185 (7th Cir. 2011); U.S. v. Tratner, 511 F.2d 248, 251-52 (CA7 1975); F.T.C. v. Shaffner, 626 F.2d 32, 37 (7th Cir.1980). Blanket claims of privilege are not acceptable. Holifield v. U.S., 909 F.2d 201, 204 (7th Cir. 1990); U.S. v. White, 970 F.2d 328, 334 (7th Cir. 1992); Shaffner, 626 F.2d at 37.

Privileges are construed narrowly and the requirements for establishing privilege are strictly enforced, because privileges are viewed as being in derogation of the search for truth. , University of Pennsylvania v. EEOC, 493 U.S. 182, 189 (1990); U.S. v. Nixon, 418 U.S. 683, 710 (1974); Valero v. U.S., 569 F.3d 626, 630 (7th Cir. 2009); U.S. v. BDO Seidman, LLP, 492 F.3d 806, 815 (7th Cir. 2007). A privilege is therefore applied only where necessary to achieve its purpose, BDO Seidman, 492 F.3d at 815, and only where it "has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth." Trammel v. U.S., 445 U.S. 40, 50 (1980).

In federal question cases, such as the one now before this Court, privilege is "governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience." Fed.R.Evid. 501. In federal question cases, the general rule is that only federal privileges are applicable; state law privileges are not incorporated into federal common law. EEOC v. Illinois Dept. of Employment Sec., 995 F.2d 106 (7th Cir. 1993). Notwithstanding that general rule, comity between state and federal governments "impels federal courts to recognize state privileges where this can be accomplished at no substantial cost to federal substantive and procedural policy." Memorial Hospital for McHenry County v. Shadur, 664 F.2d 1058, 1061 (7th Cir. 1981).

The Federal Rules also address the manner in which privilege is to be asserted. A party withholding discoverable information on the ground of privilege must "(i) expressly make the claim; and (ii) describe the nature of the documents ... not produced or disclosed - and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim." Fed.R.Civ.P. 26(b)(5)(A).


More than 15 years ago, the Seventh Circuit noted the "prevailing view" that self-critical portions of affirmative action plans are privileged, noting that the "bounds of the privilege depend on the extent to which the policy of equal opportunity in employment will best be served in the particular circumstances presented by each case." Coates v. Johnson & Johnson, 756 F.2d 524, 551 (7th Cir. 1985). In Burden-Meeks v.Welch, 319 F.3d 897 (7th Cir. 2003), the Court declined to elaborate on the privilege, finding it unnecessary to decide the questions whether the "novel" privilege of self-critical analysis exists and if so, its scope.

Other than these two cases, the Seventh Circuit has not spoken to the self-critical analysis privilege. Hence, this Court must evaluate this privilege under the general principles discussed in the preceding section, beginning with the question whether the privilege exists at federal common law. As the Memorial Hospital Court explained, that examination should be guided by two basic concepts:

First, because evidentiary privileges operate to exclude relevant evidence and thereby block the judicial fact-finding function, they are not favored and, where recognized, must be narrowly construed. Second, in deciding whether the privilege asserted should be recognized, it is important to take into account the particular factual circumstances of the case in which the issue arises. The court should "weigh the need for truth against the importance of the relationship or policy sought to be furthered by the privilege, and the likelihood that recognition of the privilege will in fact protect that relationship in the factual setting of the case."

Memorial Hospital, 664 F.2d at 1061-1062.

The City cites three cases for the proposition that the privilege is recognized in this Circuit. Those three cases are: Morgan v. Union Pacific R. Co., 182 F.R.D. 261 (N.D.Ill.1998); Robbins v. Provena St. Joseph Medical Center, - F. Supp. 2d -, Case 03C1371, 2004 WL 502327, March 11, 2004 (N.D.Ill.); and Tice v. American Airlines Inc., 192 F.R.D. 270 (N.D.Ill.2000).

In Morgan v. Union Pacific R. Co., 182 F.R.D. 261 (N.D.Ill.1998), the defendant asserted the self-critical analysis privilege in order to protect the railroad's post-accident investigation reports from disclosure. The Court noted "vast array of inconsistent decisions" on the question whether the privilege exists in federal common law. Assuming for the sake of argument that the privilege did exist, the Morgan Court went on to determine the proper scope of the privilege in the factual context of the case, concluding that the privilege did not apply to protect the documents. Despite the City's reliance on this case, it does not stand for the proposition that the privilege exists; the Morgan Court simply assumed its existence.

The other case cited by the City is Robbins v. Provena St. Joseph Medical Center, - F. Supp. 2d -, Case 03C1371, 2004 WL 502327, March 11, 2004 (N.D.Ill.), the privilege was asserted to protect from disclosure employee complaints (known as "ADOs") pertaining to under-staffing of nurses at the hospital and other related matters, such as follow-up correspondence, investigations, and conclusions. The case arose under federal labor laws. The Court did not discuss whether the privilege existed at federal common law. It simply applied what it believed to be the correct legal standard, finding that the documents were self-generated for the purpose of critical analysis, that the public had a strong interest in the flow of this information because it affected patient care, that allowing use in litigation would adversely impact the use of these documents, and that the documents were maintained on a strict, need-to-know basis. The Court may have been swayed by the fact that these documents were also statutorily protected under Illinois' Medical Studies Act, another privilege asserted in the case. Once again, however, the Court simply presumed that the privilege existed; it made no such finding.

The same is true of the third case, Tice v. American Airlines Inc., 192 F.R.D. 270 (N.D.Ill.2000), where the court began its discussion, "Assuming that the federal common law ...

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