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Turner v. City of Chicago

United States District Court, N.D. Illinois

February 10, 2017

CITY OF CHICAGO, et al., Defendants.

          Sharon J. Coleman Judge.



         This matter comes before the Court on defendant City of Chicago's motion for a protective order, which would permit it to shield 167 documents from discovery on the basis of three privileges: attorney-client, deliberative process, and work product (or, in some instances, a combination of two privileges). For the reasons stated herein, the Court grants this motion with a few exceptions discussed below.


         Plaintiffs allege that Elaina Turner was tased and arrested by Defendant Officer Patrick Kelly (“Kelly”) during an attempt to tow Ulysses Green's automobile on August 2, 2013. (Am. Cmpt. at ¶ 8-11.) Plaintiffs further allege that the tasing caused Turner to suffer a miscarriage.[1](Id. at ¶ 11.) Following the incident, Defendants allegedly pursued criminal charges against the Plaintiffs, but Plaintiffs prevailed in the underlying criminal matter. (Id. at ¶¶ 13-15.) According to Plaintiffs, Kelly has a lengthy history of reported misconduct in his duty as a police officer, as well as two arrests for assault and battery while off duty. (Id. at ¶¶ 35-59.) During the criminal proceedings underlying this case, Plaintiffs obtained an order from a state court judge ordering the Independent Police Review Authority (“IPRA”) “to produce all CR files and internal investigations relating to Defendant Kelly.” (Dkt. 63 at ¶ 4.) On June 29, 2015, IPRA produced documents that it purported to be the entire CR file and investigative file for Kelly. (Dkt. 63 at ¶ 5.) However, as we noted in our previous opinion recommending sanctions against the City, the City failed to produce investigative records relating to Officer Kelly that did not result in a “CR” file, but had triggered an automatic investigation by IPRA (because the incidents involved a police shooting); the Court found that this failure constituted a significant discovery violation. (Dkt. 122.) The Court also recommended that Defendants provide the Plaintiffs with a “certification attesting that a complete and exhaustive search has been conducted and all investigative files relating to Defendant Kelly have been produced.” (Id.).

         To date, Defendants have produced many documents relating to Officer Kelly, including close to 700 e-mail communications about the status of ongoing IPRA investigations. However, the City withheld 167 emails as privileged, as discussed above. After meeting and conferring with Plaintiffs' counsel about the assertion of this privilege, the City filed the instant motion seeking a protective order prohibiting disclosure of the documents it was withholding. At the hearing on the instant motion, the Court ordered that the withheld documents be produced for in camera review and set a briefing schedule. The Court has reviewed the parties' briefs and the withheld documents, and the matter is now ripe for disposition.

         A few preliminary matters need to be understood before we proceed further. First, after this case was filed, IPRA reopened two investigations of Officer Kelly which previously were closed. These are the IPRA investigation of the tasing incident in this case and what we will refer to as the LaPorta investigation (CR # 1033096). Regarding the IPRA investigation of the facts underlying this case, the City already has informed Plaintiffs that it has reopened the IPRA investigation after obtaining certain materials in the course of this case, including fitness for duty records, depositions, and other discovery materials. The City has also produced an IPRA memo in this case dated January 11, 2017, setting forth what additional investigative steps have been taken since it reopened the case and which steps still remain. The LaPorta investigation concerned an incident in which Kelly's service weapon was discharged and shot LaPorta (Kelly's friend) in the head; a complaint was sustained against Officer Kelly on a number of different grounds, but he was exonerated on an allegation that he shot LaPorta. As far as the Court can determine from its review of the documents set forth in the privilege log, there is only one IPRA summary report regarding the LaPorta incident among the documents: Doc. 8, CR #1033096, as well as related communications about the IPRA investigation. The Court will discuss what can and should be revealed to Plaintiffs about this matter below.

         In addition to the two investigations discussed above, other documents relating to at least two other IPRA investigations are being withheld, including draft report and communications about those reports. Two of these investigations, #1068325 (Docs. 83-84, 152-153) and #1072859 (Doc. 125), are irrelevant to this case. In the first, Officer Kelly is not identified as a participant in the alleged misconduct. In the second, he has nothing to with the allegations of the complaint, but merely transported the complainants. His own conduct in this case was not questioned. As these matters are irrelevant to any issue in this case, the City does not have to produce these documents and the Court need not reach any alleged privilege questions.

         The remaining documents fall into three different categories: 1) draft IPRA reports on complaints, many of which contain annotations reflecting questions and advice about the facts asserted in these drafts by IPRA attorneys and other personnel; 2) e-mail communications about decisions made during the course of investigations, and providing advice (often from IPRA attorneys) about how best to proceed in an investigation and preliminary opinions offered about IPRA findings-again often by IPRA attorneys, but by other personnel as well; and 3) communications which relate not to IPRA investigations, but rather to matters before this or other courts concerning ongoing cases. As to the first category, the City asserts only the deliberative process privilege. Regarding the second, if the communication is authored by or written to an IPRA in-house lawyer, or even copied to an IPRA attorney, the City claims both deliberative process and attorney-client privilege. On the final category, the City claims that that those documents are protected by the attorney-client privilege and/or the work product privilege. With these categories in mind, we turn to the legal standards which govern the applicable privileges.


         I. Deliberative Process 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 N.L.R.B. v. Sears, Roebuck & Co., 421 U.S. 132, 150-51 (1975)). The privilege “rests on the obvious realization that officials will not communicate candidly among themselves if each remark is a potential item of discovery and front page news, and its object is to enhance the quality of agency decisions by protecting open and frank discussion among those who make them within the Government.” Dept. of Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 8-9 (2001) (internal quotations omitted). In keeping with this stated goal, the deliberative process privilege covers “documents reflecting advisory opinions, recommendations and deliberations comprising part of the process by which governmental decisions and policies are formulated.” Id. at 9. A document will be protected “only if it is ‘predecisional'-generated before the adoption of an agency policy-and ‘deliberative'- reflective of the give and take of the consultative process.'' Allen v. Chicago Transit Auth., 198 F.R.D. 495, 502 (N.D.Ill.2001). This means that “[c]ommunications made subsequent to an agency decision are . . . not . . . protected.” Farley, 11 F.3d at 1389. Additionally, “[t]he deliberative process privilege is qualified and ‘may be overcome when there is a sufficient showing of a particularized need to outweigh the reasons for confidentiality.'” Anderson v. Cornejo, 97 C 7556, 2001 WL 826878, at *2 (N.D. Ill. July 20, 2001) (quoting Farley, 11 F.3d at 1389).

         The City claims over 118 documents are protected by the deliberative process privilege and should not be produced. Plaintiffs make three different arguments in urging the Court to order disclosure of the documents. The first is that the City did not support the assertion of the privilege with an affidavit. An assertion of this privilege requires: “(1) the department head with control over the matter must make a formal claim of privilege, after personal consideration of the problem; (2) the responsible official must demonstrate, typically by affidavit, precise and certain reasons for preserving the confidentiality of the documents in question; and (3) the official must specifically identify and describe the documents.” K.L.v. Edgar, 964 F.Supp. 1206, 1209 (N.D. Ill. 1997). Although the City's motion inexplicably did not include such affidavit, it supplemented its motion with a thorough affidavit by Helen O'Shaughnessy, IPRA's general counsel, which more than satisfies this test. The statements in the affidavit are substantially similar to those found to be sufficient by Judge Chang in a substantially similar affidavit from Ms. O'Shaughnessy submitted in Holmes v. Hernandez, No. 14 C 8536, (N.D. Ill. Nov. 21, 2016). The Court finds that the documents being withheld are described in sufficient detail and Ms. O'Shaughnessy clearly establishes the asserted rationale for preserving their confidentiality. Therefore, IPRA has established a prima facie case for the application of the privilege.

         Plaintiffs' second argument is that the City's production of both unspecified e-mails and at least one draft summary report regarding the tasing incident underlying this case waived the privilege as to all of the documents; this is not so. The release of other documents (which Plaintiffs does not even identify in its response to the City's motion) does not waive the privilege for all related documents, but only for the document or information specifically released. Howard v. City of Chicago, 2006 WL 2331096, at *7 (N.D. Ill. Aug. 10, 2006) (quoting In re Sealed Case, 121 F.3d 729, 741 (D.C. Cir, 1997)). The only case which Plaintiffs cite for extending the waiver to all documents ...

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