ILLINOIS LEAGUE OF ADVOCATES FOR THE DEVELOPMENTALLY, DISABLED, et al. Plaintiffs,
PATRICK QUINN, et al. Defendants.
MEMORANDUM OPINION AND ORDER
MARVIN E. ASPEN, District Judge.
Presently before us is Defendants' disputed claim of privilege with respect to numerous documents identified during the parties' expedited discovery. (Dkt. No. 184.) After reviewing the documents in camera and considering the parties' positions, we allow the motion in part, and deny it in part. As discussed below, Defendants shall produce the documents identified as categories 1 through 4, and categories 6 through 8, within three business hours. The documents included as the fifth category are shielded by the deliberative process privilege.
We assume familiarity with the factual background of this case, previously recounted in other opinions, and discuss only those facts pertinent to the present dispute. Plaintiffs seek a preliminary injunction preventing the closure of the Murray Developmental Center ("Murray") and the transfer of its residents to other locations, if those residents have not consented to such transfer. (Pls.' Mem. ISO Legal Theory at 7.) Plaintiffs also ask that we enjoin the Defendants, including Defendant Community Resources Associates ("CRA"), from conducting any pre-transfer assessments or related activities, unless undertaken with a guardian's approval. ( Id. ) The preliminary injunction hearing is scheduled to commence September 9, 2013 at 10 a.m. In preparation for the hearing, the parties have engaged in expedited discovery.
During the course of discovery, Defendants identified roughly 100 documents they contend are protected by the deliberative process privilege. Defendants group these documents into eight categories: (1) DHS communications about funding and budgeting proposals for Community Integrated Living Arrangements ("CILAs"); (2) agency communications about proposed policies and procedures for Murray in preparation for its closure; (3) documents concerning the Active Community Care Transition ("ACCT") process; (4) memos from CRA to DHS about closing the Murray and Jacksonville facilities; (5) documents showing DHS's deliberations and opinions about proposed legislation; (6) documents showing recommendations and deliberations about the Rebalancing Initiative; (7) documents about proposals on the Regional Management Structure; and (8) one document containing pre-decisional deliberations about eligibility to receive benefits. (Mem. at 2-3.) In support of their assertion of privilege, Defendants submitted their privilege log and filed a declaration from Kevin Casey, the Director of Developmental Disabilities for DHS. (Dkt. Nos. 184-2 & 186-1 (Casey Decl.).) Casey states that he believes all of these withheld documents are pre-decisional and should remain confidential. (Casey Decl. ¶¶ 5, 7-8.) In compliance with our earlier orders (Dkt. Nos. 174 & 178), Defendants submitted the documents for in camera review.
Plaintiffs contest Defendants' assertion of the deliberative process privilege on several grounds. Plaintiffs argue that Defendants have not sufficiently demonstrated the privilege and, moreover, that it does not apply under these circumstances because Defendants' intent is at issue. (Resp. at 1-3.) They further contend that, even if Defendants met their burden, Plaintiffs have a particularized need for the documents that trumps the privilege. ( Id. at 3-5.) Having considered the parties' briefs, including the recently-filed sur-reply, we will consider each argument in turn.
Our applications of law to fact in deciding Defendants' claim of privilege are subject to review on appeal for clear error. Valero Energy Corp. v. U.S., 569 F.3d 626, 630 (7th Cir. 2009); U.S. v. BDO Seidman, LLP, 492 F.3d 806, 814 (7th Cir. 2007). "Findings regarding privilege are fact-intensive, case-specific questions that fall within the district court's expertise, and, under these circumstances, a light appellate touch is best." Valero Energy Corp., 569 F.3d at 630 (internal quotation omitted). "On the other hand, the scope of a privilege is a question of law, " which is reviewed de novo. BDO Seidman, LLP, 492 F.3d at 814; Sandra T.E. v. S. Berwyn Sch. Dist. 100, 600 F.3d 612, 618-19 (7th Cir. 2010); Jenkins v. Bartlett, 487 F.3d 482, 491 (7th Cir. 2007) (reviewing de novo the district court's assumption that an attorney performing investigative work is not acting as an attorney, for purposes of the attorney-client 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) (citing NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150-52, 95 S.Ct. 1504, 1516-17 (1975)); Evans v. City of Chi., 231 F.R.D. 302, 315-16 (N.D. Ill. 2005); Tumas v. Bd. of Educ. of Lyons Twp. High Sch. Dist. 204, No. 06 C 1943, 2007 WL 2228695, at *1 (N.D. Ill. July 31, 2007). The privilege protects "communications made prior to and as a part of an agency determination" because "frank discussion of legal and policy matters is essential" to governmental decisionmaking. Farley, 11 F.3d at 1389; Evans, 231 F.R.D. at 316; Tumas, 2007 WL 2228695, at *1. "[T]he ultimate purpose of this long-recognized privilege is to prevent injury to the quality of agency decisions." Sears, Roebuck & Co., 421 U.S. at 150, 95 S.Ct. at 1516. Accordingly, the privilege covers "documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated." Id. ; see Evans, 231 F.R.D. at 316. Nonetheless, the privilege is not absolute, and it "may be overcome where there is a sufficient showing of particularized need to outweigh the reasons for confidentiality." Farley, 11 F.3d at 1389; Tumas, 2007 WL 2228695, at *1; see also Sronkoski v. Schaumburg Sch. Dist., No. 54, No. 08 C 721, 2009 WL 1940779, at *1 (N.D. Ill. July 1, 2009).
We therefore follow a two-step analysis when evaluating Defendants' claim. We first must decide whether Defendants have complied with procedural requirements and shown that the privilege in fact applies to each of the withheld documents. If the privilege applies, we consider whether Plaintiffs have shown a particularized need for any of the materials that warrants disclosure. Sronkoski, 2009 WL 1940779, at *1; Evans, 231 F.R.D. at 316; Ferrell v. U.S. Dep't of Housing & Urban Dev., 177 F.R.D. 425, 428 (N.D. Ill. 1998).
A. Availability of the Privilege Where Intent Is at Issue
Before we undertake the two-part analysis, we briefly consider a threshold question raised by the parties: whether, as a matter of law, the deliberative process privilege applies where the government's intent is at issue. As Plaintiffs point out, several district and magistrate judges in the Seventh Circuit have concluded that this privilege has no effect where the intent behind the government's decision-making process is directly at question. U.S. v. Lake County Bd. of Commrs., 233 F.R.D. 523, 526-27 (N.D. Ind. 2005) (holding that the privilege "does not apply in civil rights cases in which the defendant's intent to discriminate is at issue"); see Glenwood Halsted LLC v. Vill. of Glenwood, No. 11 C 6772, 2013 WL 140794, at *3 (N.D. Ill. Jan. 11, 2013); Lewis v. Phillips, No. 10 C 3163, 2012 WL 5499448, at *2 (C.D. Ill. Nov. 13, 2012); Dunnet Bay Constr. Co. v. Hannig, No. 10 C 3051, 2012 WL 1599893, at *3 (C.D. Ill. May 7, 2012); Anderson v. Marion Cty. Sheriff's Dep't, 220 F.R.D. 555, 561 (S.D. Ind. 2004); Anderson v. Cornejo, No. 97 C 7556, 2001 WL 826878, at *2 (N.D. Ill. 2001). The Seventh Circuit has not yet evaluated this approach.
In the absence of clear precedent, we are reluctant to preclude reliance on the privilege-generally a case-specific proposition-as a matter of law. See, e.g., Valero Energy Corp., 569 F.3d at 630 (noting that questions of privilege are "fact-intensive, case-specific questions"); First Heights Bank, FSB v. U.S., 46 Fed.Cl. 312, 322 (Fed. Cl. 2000) (declining to follow the line of cases precluding this privilege as a matter of law). Nonetheless, in light of our conclusions below requiring additional disclosures, we need not rule on this specific question. As recognized by the above cases, the government's intent, where directly contested, is without question a critical factor to consider when analyzing a litigant's need for withheld documents. U.S. v. Bd. of Educ. of City of Chi., 610 F.Supp. 695, 700 (N.D. Ill. 1985) (rejecting assertion of privilege where the decisionmaking process " is the case"); see In re Delphi Corp., 276 F.R.D. 81, 84-86 (S.D.N.Y. 2011) (subjecting the privilege to the balancing test, noting that disclosure will often follow anyway where the deliberative process is the central issue); Vietnam Veterans of ...