United States District Court, N.D. Illinois
J. Coleman Judge.
E. COX MAGISTRATE JUDGE.
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.
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.(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
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.
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.
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.
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.
Deliberative Process Privilege
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).
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.
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 ...