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Michael Lewis, et al v. Larry J. Phillips

November 13, 2012


The opinion of the court was delivered by: Sue E. Myerscough, U.S. District Judge:

E-FILED Tuesday, 13 November, 2012 10:29:29 AM Clerk, U.S. District Court, ILCD


Plaintiffs are detained in the Rushville Treatment and Detention Center pursuant to the Illinois Sexually Violent Persons Act. This case began as a challenge to a blanket ban on R-rated movies and M-rated video games. The blanket ban was then replaced with a list of banned movies and games, which Plaintiffs also challenge. Plaintiffs also pursue a claim that in March 2011 the facility implemented a ban on all video gaming systems in retaliation for this lawsuit and other similar lawsuits. Plaintiffs now seek to add a claim challenging the latest changes to the rules on movies and video games which were put in place on October 4, 2012. For the reasons below, Plaintiffs will be permitted to add that claim.

Plaintiffs move to compel documents which Defendants have refused to produce on grounds of attorney-client privilege, work product doctrine, deliberative process privilege, and security concerns. The Court granted Plaintiffs' motion to compel to the extent Plaintiffs sought an in camera review of the documents. Now before the Court is Defendants' motion for an in camera review of the documents.

Under Federal Rule of Civil Procedure 26(b)(1), "[p]arties may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense."

Defendants' list of privileged documents is confusing, particularly with regard to the emails, because the list does not refer to the Bates numbers of the in camera documents. Discerning which emails constitute numbers 1-20 in the "attorney-client privilege" section of Defendants' privilege log versus numbers 22-48 in the "deliberative process privilege" section is difficult. Many of the emails are duplicative and marked inconsistently. The Court has done its best to review each document to determine whether the document is protected from disclosure for any of the reasons asserted by Defendants.

I. The deliberative process privilege applies to most of the documents, but Plaintiffs' need for the documents is sufficient to overcome the privilege. "The deliberative process privilege protects communications that are part of the decision-making process of a governmental agency." U.S. v. Farley, 11 F.3d 1385, 1389 (7th Cir. 1993). This privilege encourages the candor essential to effective and efficient government decision-making. Id. The privilege applies to documents which are "predecisional" and part of the deliberative process. Enviro Tech Intern., Inc. v. U.S. E.P.A., 371 F.3d 370, 375 (7th Cir. 2004)(2004)(EPA's internal documents discussing proposed rule were protected by the deliberative process privilege). The privilege "may be overcome where there is a sufficient showing of a particularized need to outweigh the reasons for confidentiality." Id. However, "[r]elevance alone" is not enough to overcome the privilege. Farley, 11 F.3d at 1390 (documents regarding the FTC's deliberations on whether to sue were protected by the deliberative process privilege). Illinois does not recognize this privilege. However, federal common law applies since Plaintiff's claims are based on federal law. Birkett v. City of Chicago, 184 Ill.2d 521 (1998)(no deliberative process privilege under Illinois law); Fed. R. Evid. 501 (federal common law governs privilege claim unless case is a civil case based on state law).

The emails, minute meetings, and memo drafts regard fact-gathering and deliberations about whether and to what extent video gaming systems should be allowed at the facility; the therapeutic and security concerns presented by video gaming systems; the exploration of alternatives to a total ban; legal aspects of limiting gaming systems; and explanation of the gaming policy to residents. This deliberative process culminated in a memo to residents issued in March 31, 2011 implementing a ban on gaming systems and other electronics.

These documents are clearly part of the deliberative process.

However, Plaintiffs claim that the March 2011 memo was issued in retaliation for this lawsuit and others like it. In order to prove their retaliation claim, Plaintiffs must have evidence that the March 2011 policy was motivated, at least in part, by retaliation. Deliberations leading up to that policy could be relevant to show Defendants' motive and intent. (In the Court's opinion, the documents actually show the lack of any retaliatory motive, but that is not relevant to determining whether the documents are protected from disclosure).

District court cases have recognized an exception to the deliberative process privilege where intent is central to proving a claim. See, e.g., U.S. v. Lake County Board of Commissions, 233 F.R.D. 523, 527 (N.D. Ind. 2005)("dominant view is that . . . the deliberative process privilege does not apply when the government's intent is at issue"); Scott v. Board of Educ. of East Orange, 219 F.R.D. 333 (D.N.J. 2004)(in a federal retaliation claim based on termination, plaintiff could depose board members about discussions regarding plaintiff's termination because information was necessary to challenge board's stated reasons for termination); Dunnet Bay Construction Co. v. Hannig, 2012 WL 1599893 * 3 (7th Cir. 2012)(C.D. Ill., Magistrate Judge Cudmore)(not published in F.Supp.2d); Doe v. Freeburg School Dist., 2011 WL 2013945 *3 (S.D. Ill., Magistrate Judge Wilkerson)(not published in F.Supp.2d); see also Enviro Tech Intern. v. U.S. E.P.A., 371 F.3d 370, 376 (7th Cir. 2004)(assuming that "nefarious" internal agency discussions are not entitled to deliberative process privilege).

In addition to the Defendants' intent being central to Plaintiffs' retaliation claim, some of the information in the in camera documents has already been disclosed by Defendants. For example, the March 2011 memo already discloses much of the same information included in the prior drafts of the memo. Also, some of the information regards objective facts, such as how other states handle the issue. See S.E.C. v. Sentinel Management Group, Inc., 2010 WL 4977220 *3 (N.D. Ill., Magistrate Judge Finnegan)(not published in F.Supp.2d)(deliberative process privilege does not apply to objective facts).

For the above reasons, the Court concludes that the deliberative process privilege does not protect the in camera documents from disclosure.

II. The attorney-client privilege protects many of the documents. The attorney-client privilege protects communications made in confidence for the purpose of obtaining legal advice. Sandra T.E. v. South Berwyn School Dist. 100, 600 F.3d 612, 618 (7th Cir. 2010). The privilege applies when legal advice is sought from an attorney in a confidential communication for that purpose. "[T]he attorney-client privilege protects not only the attorney-client relationship in imminent or ...

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