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Lewis A. Bianchi, et al v. Henry C. Tonigan

November 28, 2012

LEWIS A. BIANCHI, ET AL., PLAINTIFFS,
v.
HENRY C. TONIGAN, III, ET AL. DEFENDANTS.



The opinion of the court was delivered by: Mary M. Rowland United States Magistrate Judge

Magistrate Judge Rowland

MEMORANDUM OPINION AND ORDER

Louis A. Bianchi, the State's Attorney of McHenry County, and three of his employees (collectively, "Plaintiffs") bring this action against Defendants Special State's Attorney Thomas K. McQueen and Quest Consultants International and some of its employees (collectively, "Quest"), alleging that Defendants conspired to fabricate false criminal charges and prosecute Bianchi and his employees without probable cause or credible evidence.*fn1

On May 23, 2012, Quest produced approximately 17,002 pages of documents to Plaintiffs. The parties now disagree about whether the vast majority of these documents should be treated as "confidential" under the parties' agreed Protective Order. Quest has filed a Motion to Enforce Designation of Documents as Confidential Under the Protective Order (Dkt. 99 and Dkt. 121). For the reasons stated below, the Court denies Quest's Motion to Enforce.

I. Factual Background

This litigation arises out of the 2011 investigation and indictment of Louis Bianchi, the McHenry County State's Attorney, as well as some of his employees, for various alleged acts of official misconduct, including use of county resources for political purposes and preferential treatment of certain criminal defendants. Bianchi and his employees were ultimately acquitted of all charges, and on January 18, 2012, they filed suit against the people who investigated and prosecuted them, alleging they engaged in a politically and financially motivated conspiracy to remove Bianchi from office. The particular Defendant most relevant to this Motion is Quest Consultants International, a private investigation firm hired by the special prosecutors to investigate Bianchi.

On May 23, 2012, pursuant to Federal Rule of Civil Procedure 26(a)(1)(A), Quest produced approximately 17,002 pages of documents. The parties have described that production as consisting of three categories of documents: (1) email communications between and among Quest employees regarding their investigation of Bianchi; (2) Quest billing records related to the investigation; and (3) interview reports prepared by Quest employees during their investigation. The parties agreed to treat the documents as confidential until a protective order was negotiated and entered by the Court.

On June 20, 2012, the District Court entered the parties' agreed Protective Order (Dkt. 93). The Order permits the producing party to designate documents as "confidential," which is defined as "sensitive, personal and/or proprietary information that is treated as confidential." (Id. at 2). The Protective Order restricts the use of confidential material including not allowing a witness to see confidential material without signing a declaration of intent to be bound by the Protective Order (id. at 6, 13), and requiring any pleading containing confidential information to be filed under seal (id. at 4-5).

The Protective Order also provides a mechanism for challenging a parties' confidentiality designation for lack of good cause:

A party may challenge the propriety of a designation by another party of material or testimony as Confidential within a reasonable period of time after receipt or designation of the material or testimony designated as Confidential by giving written notice of such challenge to all parties. The party asserting the material or testimony as Confidential shall then have seven (7) days to either remove the Confidential designation or to file a motion in court alleging good cause for the Confidential designation. The party making the designation shall have the burden of proving the propriety of such designation...." (Id. at 7).

On June 26, 2012, pursuant to the Protective Order, Quest formally designated its entire May 23, 2012 production as confidential. Three days later, on June 29, 2012, Bianchi's counsel objected to that designation, asserting that "none of the documents produced contain 'confidential information' as defined in the Protective Order" (Dkt. 121-7).

Quest filed an initial Motion to Enforce Designation of Documents as Confidential on July 6, 2012. The District Court referred that Motion to Magistrate Judge Nolan (Dkt. 107), who ordered the parties to continue to meet and confer in good faith (Dkt. 108). The parties were able to narrow the scope of their dispute after Plaintiffs agreed that the reports relating to background investigations and credit checks-known as "IRB reports"-were properly designated as confidential.

Whether or not the email correspondence, Quest's billing records, and non-IRB witness interview reports constitute confidential information under the Protective Order remains in dispute.

In July 2012, a number of articles about this litigation appeared in area newspapers and news-related blogs. Quest contends that those publications contain "unauthorized leaks and disclosures" of information from their May 23 production (Dkt. 121 at 3). Quest also contends that the articles show that "Plaintiffs' attorney is sharing information regarding documents produced by Quest with the media...." (Id.). In addition to the news articles, on July 24, 2012, Quest's counsel received a voicemail message from Harry Heitzman, a reporter from the Daily Herald newspaper, asking about Plaintiffs' partial settlement with Quest's co-defendant Henry Tonigan III. According to the Defendant, the reporter stated, in part, "I...did talk with the Plaintiff's attorney for Mr. ...


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