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Young v. City of Chicago

United States District Court, N.D. Illinois, Eastern Division

January 3, 2017

LaSHAWNDA YOUNG, Individually, and as Special Administrator of the Estate of Divonte Young, Plaintiff,
CITY OF CHICAGO, et al., Defendants.



         After more than two years of discovery, this civil rights case comes before the court on the plaintiff's motion for a rule to show cause for alleged noncompliance with a subpoena directed to the Chicago Independent Police Review Authority dated May 6, 2016. For the reasons that follow, the court grants the motion, finds that privilege claims have been waived, orders production of the documents in dispute, and sets a hearing on Plaintiff's request to recover her reasonable attorney's fees incurred in enforcing the subpoena.

         I. Background

         On August 9, 2012, Chicago Police Department (“CPD”) Officer Otis Watts shot Divonte Young (“Young”). (City Ans. ¶ 4, ECF No. 79; Individual Defs.' Ans. ¶ 4, ECF No. 80.) Alleging that Young was unarmed at the time, his mother, Plaintiff LaShawnda Young (“Plaintiff”) has sued Watts, the City, and three additional CPD officers under 42 U.S.C. § 1983 for allegedly violating Young's Fourth and Fourteenth Amendment rights. Plaintiff also brings survival and wrongful-death claims under Illinois law.

         The instant dispute involves the Independent Police Review Authority (“IPRA”). In 2007, the City of Chicago disbanded the CPD's former Office of Professional Standards and created IPRA. See City of Chicago Ordinance § 2-57-020. IPRA operates as an independent agency reporting directly to the mayor. See id.; Thomas v. City of Chi., No. 11 C 09275, 2013 WL 1345396, at *4 (N.D. Ill. Mar. 29, 2014) (citing Obrycka v. City of Chi., No. 07 C 2372, 2012 WL 601810, at *3 n. 2 (N.D. Ill. Feb. 23, 2012); see also Chicago Muni. Code § 2-57-020 (stating that IPRA is an “office of the municipal government” of the City of Chicago). IPRA investigated the Young shooting. Its formal investigation lasted from the date of the shooting until January 3, 2014, when IPRA formally closed its investigative file. (Aff. of Claudia Silva ¶ 11, ECF No. 156-1, Ex. A at *901.)[1] On January 21, 2014, IPRA posted on its website a redacted version of its investigative report. (Silva Aff. ¶ 8.) Plaintiff has not named IPRA as a defendant.

         Discovery began on or around January 31, 2014, and Plaintiff has yet to take depositions. On October 27, 2015, Plaintiff filed a motion to compel the deposition of the person responsible for gathering the City's discovery responses that had been produced by that date. (ECF No. 113.) The motion, among other things, described Plaintiff's discovery requests as “comprehensive, seeking all documents relative to the shooting of Divonte Young and the subsequent investigation.” (ECF No. 113 at 2.) Plaintiff's attorney, H. Candace Gorman (“Gorman”), set forth her reasons for believing that additional responsive documents and tangible things exist. (See id. at 2-3.) For instance, she stated that she learned from reviewing documents produced in June 2015 of a video of an interview with Laura Moore, a witness, even though the City's assistant corporation counsel previously represented that no additional videos of interviews with witnesses existed. (See id. at 3.) The City eventually produced videos of Moore's interviews. (Id.)

         In May 2016, Gorman learned for the first time that the assistant corporation counsel representing the City, Matthew Hurd (“Hurd”), could not confer directly with IPRA. (Pl.'s Am. Rule to Show Cause 2, ECF No. 149.) As a result, she delivered a subpoena on May 6, 2016, to a paralegal at IPRA (“the subpoena”). The subpoena commanded “IPRA” to produce the following documents at Gorman's office at 2:00 p.m. on May 20, 2016: “The complete investigative file for the incident that occurred on August 9, 2012 resulting in the death of Divonte Young. Plaintiff seeks all investigative documents including but not limited to internal communications, external communications, e-mails, notes, facsimilies (sic).” (ECF No. 149 Ex. A at 1.) In a letter dated May 17, 2016, paralegal Laniya Moore (“Moore”) advised Gorman that IPRA “is an agency of the City of Chicago” and that “you will need to contact the City's attorneys . . . for any information pertaining to this matter.” (ECF No. 131-3 at 1.) No documents were produced on May 20, 2016.

         Plaintiff filed a Motion to Enforce the Subpoena on June 3, 2016. (ECF No. 131.) The request for relief in that motion repeated the language of the subpoena, asking the court to “enforce the subpoena . . . and require IPRA to immediately turn over, directly to counsel for the Plaintiff, the complete investigative file. . . .” (Id. at 3.)

         The court held a hearing on that motion on June 8, 2016, at which Gorman and Hurd appeared. Hurd stated that he did not oppose granting the motion to enforce, and the court granted the motion. The minute order granting the motion did not set a deadline to comply with the subpoena. (See ECF No. 133 at 1.)

         Claudia Silva, an attorney for IPRA, states that she was assigned to respond to Plaintiff's subpoena on or around June 21, 2016. (Silva Aff. ¶ 11.) The Chicago Police Department controls the servers on which IPRA e-mail messages are stored. (Silva Aff. ¶ 14.) On July 7, 2016, Silva asked the CPD to search its servers for messages from August 9, 2012, to that date matching certain terms. (Silva Aff. ¶ 15.) Silva states that she “drafted the request for e-mails to be much broader than the scope of the Subpoena to insure that all potentially responsive e-mails would be located and with the intention that I would review the results of CPD's e-mail search and produce records that were responsive. . . .” (Silva Aff. ¶ 16.) Silva sent Gorman an e-mail message on July 14, 2016, at approximately 1:11 p.m. (ECF No. 156-1 at *909.) In that message, Silva told Gorman that “[t]here are approximately 600-700 e-mails plus multi-page attachments attached to some of the e-mails. We will be reviewing the information, creating a privilege log and making any necessary redactions. We are looking into having an outside vendor help us as there is a lot of material to go through.” (Id.) Silva avers that she intended the 600-to-700-message number as an estimate and that she did not mean to convey that she had determined that all of the material that matched her search terms was responsive to the subpoena. (See Silva Aff. ¶¶ 18-19.) The City retained a vendor to assist with the process of responding to the subpoena. (Silva Aff. ¶22.) The vendor's system created 972 records, separating messages and attachments, based on the e-mail messages matching Silva's search terms. (Id. ¶ 19.) Silva sent Gorman another e-mail message on July 18, 2016, stating that the vendor would take between seven and ten days to prepare the records for review. (ECF No. 156-1 at * 911.) Silva further stated that “we will require some turn around time in order to review the data for responsive documents.” (Id.)

         The court held a status hearing on July 29, 2016. Gorman advised that she had yet to receive the investigative file, and the court ordered that “[t]he information that the court previously ordered the City to provide, shall be produced by 8/26/16.” (ECF No. 138 at 1.)

         The City retained attorneys at Jackson Lewis, P.C., (“Jackson Lewis”) to assist in reviewing the matching e-mail messages and other material located by Silva, identifying responsive material, and producing a privilege log. (Silva Aff. ¶26.) The City, through counsel at Jackson Lewis, produced documents, including paper documents and an audio recording located by Silva, on August 26; August 29; and September 1, 2016. (See Silva Aff. ¶¶ 27-34.) The City also tendered a privilege log on August 26, 2016. (Id. ¶ 27.) It initially withheld 34 of the 88 documents it then deemed responsive. (Id.) In a separate e-mail message dated August 29, 2016, an attorney with Jackson Lewis supplied two examples of records deemed nonresponsive: responses to Freedom of Information Act requests in January and March 2016 listing IPRA cases, including the case number of the Young investigation. (See Silva Aff. ¶ 32.) Upon further reflection, the City effectively withdrew its claims of privilege as to all but five records on September 1, 2016. (See Silva Aff. ¶ 35; Letter from P. Rocks to Gorman, Sept. 1, 2016, ECF No. 156-1, Ex. F at *940.)

         Communications between counsel and production of documents continued over the next month-and-a-half. The City produced supplemental documents on October 4, 10, and 11, 2016, including some documents it deemed to be duplicative of those already produced. (See Silva Aff. ¶¶ 38-39.) The City also sent Gorman a spreadsheet listing approximately 400 records it considered nonresponsive and offered to allow Gorman to select a few documents to review. (See id. Ex. H; E-mail from P. Rocks to Gorman, Oct. 10, 2016, ECF No. 156-1 at *959.) The City, however, took the position that the nonresponsive material totaled 170, 000 pages, and producing those pages would be unduly burdensome given the cost of reviewing them to create a privilege log. (E-mail from P. Rocks to Gorman, Oct. 10, 2016, ECF No. 156-1 at *959.)

         Plaintiff filed her original motion for rule to show cause on September 15, 2016. She amended that motion on October 26, 2016. The motion has been fully briefed, the City has filed a surresponse, and Plaintiff has filed a surreply.[2]

         II. Analysis

         In the instant motion, Plaintiff asks the court to enter a rule to show cause, impose sanctions, and order full compliance with the subpoena, by which she means the turnover of all documents withheld as nonresponsive and based on a claim of privilege. More specifically, she urges the court to rule that the City has waived its privilege objections and that documents created after IPRA officially closed its investigation are responsive to the subpoena. She also seeks her reasonable attorney's fees. The City responds that it has complied fully with the subpoena, properly construed. It asserts that it produced a privilege log within a reasonable time. Before the court can address those issues, it must determine the applicable procedural standard, a task complicated by Plaintiff's use of the rule-to-show-cause device and the undeveloped record on IPRA's relationship with the City.

         A. Legal Standards

         Plaintiff does not cite Rule 45 or any other provisions of the Federal Rules of Civil Procedure, but three times in the instant motion, she asks the court to “enter this Amended Rule” or “enter the Rule, ” order the City to comply fully with the subpoena, and sanction it. (ECF No. 149 at 1, 8, 15.) Her motion raises two procedural issues. First, Plaintiff apparently treated IPRA as a nonparty when she issued the subpoena, but it is an “office of the municipal government” of the City of Chicago, a party. Chicago Muni. Code § 2-57-020. Second, Plaintiff's use of the rule-to-show-cause procedure means the court cannot impose sanctions at this juncture.

         1. IPRA' ...

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