United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
J. DALY UNITED STATES MAGISTRATE JUDGE .
matter comes before the Court pursuant to the discovery
dispute conference held on February 17, 2017. (Doc. 67.) On
May 10, 2016, Plaintiffs, who are residents of the McBride
and Elmwood developments in Cairo, Illinois, filed a
complaint against Defendants Alexander County Housing
Authority, James Wilson, and Martha Franklin. (Doc. 1.) On
February 13, 2017, Plaintiffs filed an amended complaint,
alleging claims of housing discrimination based on race and
familial status, breach of contract, and failure to maintain
rental units. (Doc. 66.) On February 17, 2017, the Court held
a discovery dispute conference regarding Defendants'
responses to Plaintiff's discovery requests. Following
the discovery dispute conference, the sole remaining issue
was whether Defendants could assert deliberative process
privilege to withhold the executive session minutes requested
by Plaintiffs, and the parties submitted briefs on the issue.
(Docs. 71, 72.)
argue that Defendants waived deliberative process privilege
by failing to assert it in a timely manner. Parties must
respond or object to requests for production within thirty
days of service. Fed.R.Civ.P. 34(b). To assert privilege with
respect to discovery requests, a party must describe the
withheld discovery materials in a manner that will allow
other parties to assess the assertion of privilege.
Fed.R.Civ.P. 26(b)(5). Failure to comply with these
provisions may result in the waiver of privilege. Ritacca
v. Abbott Labs., 203 F.R.D. 332, 335(N.D. Ill. 2001). As
stated by the Ritacca court:
Acknowledging the harshness of a waiver sanction, courts have
reserved the sanction for those cases where the offending
party committed unjustified delay in responding to discovery.
Minor procedural violations, good faith attempts at
compliance, and other such mitigating circumstances militate
against finding waiver. In contrast, evidence of
foot-dragging or a cavalier attitude towards following court
orders and the discovery rules supports finding waiver. In
the end, the determination of waiver must be made on a
to Plaintiffs' submissions, Plaintiffs first issued a
specific request for the executive session minutes on
November 28, 2016. During a teleconference on January 12,
2017, Defendants did not expressly assert deliberative
process privilege; however, Defendants questioned whether
Plaintiffs were entitled to discover the executive session
minutes, and Plaintiffs responded that they would follow up
separately on the executive session minutes. On February 17,
2017, during the discovery dispute conference, Defendants
asserted deliberative process privilege for the first time.
Although Defendants should have asserted the deliberative
process privilege sooner, Defendants' conduct falls short
of the conduct described in the cases cited by Plaintiffs,
which consisted of misrepresentation, evasive behavior, and a
cavalier attitude with regard to the rules and orders.
See Ritacca, 203 F.R.D. at 335-36; Slabaugh v.
State Farm Fire & Cas. Co., 2013 WL 4777206, at *2
(S.D. Ind. Sept. 5, 2013). The Court concludes that
Defendants' conduct does not warrant the harsh sanction
argue that the deliberative process privilege applies to the
executive session minutes and that Plaintiffs have failed to
set forth a particularized need that outweighs the need for
confidentiality. “The deliberative process privilege
protects communications that are part of the decision-making
process of a governmental agency.” United States v.
Farley, 11 F.3d 1385, 1389 (7th Cir. 1993). “The
deliberative process privilege may be overcome where there is
a sufficient showing of a particularized need to outweigh the
reasons for confidentiality.” Id. Defendants
have submitted the executive session minutes for in camera
review. Upon review of the executive session minutes, the
Court finds that the executive session minutes reflect
pre-decisional policy discussions. Plaintiffs argue that
records of board votes are not pre-decisional but are
themselves decisions, which are not subject to the
deliberative process privilege. However, the executive
session minutes contain no records of board votes.
respect to a particularized need, Plaintiffs argue that the
executive session minutes may provide evidence of intent to
discriminate against residents on the basis of race or
familial status and that the minutes are of heightened
importance due to the unavailability of other evidence. The
Court finds the cases cited by Plaintiffs to be instructive
on whether Plaintiffs demonstrate a particularized need.
See Gibbons v. Vill. of Sauk Vill., 2016 WL 7104255
(N.D. Ill. 2016) Sronkoski v. Schaumburg Sch. Dist., No.
54, 2009 WL 1940779 (N.D. Ill. 2009). In the employment
discrimination cases of Gibbons and
Sronkoski, the plaintiff employees had knowledge
prior to moving to compel that the defendant employers had
discussed the plaintiffs' employment at specific board
meetings and requested records for those specific board
meetings. The courts in Gibbons and
Sronkoski reviewed the records at issue and
determined that the records were relevant to the
plaintiffs' claims. The courts then concluded that the
plaintiffs had demonstrated a particularized need and ordered
the defendants to produce the records over their assertions
of deliberative process privilege.
Plaintiffs seek executive session minutes from 2012 to the
present date without any effort to narrow the request to
specific board meetings in which Defendants discussed topics
relevant to Plaintiffs' claims. Rather, Plaintiffs
broadly seek information regarding discussions on, inter
alia, salaries, rental unit maintenance, and residential
applications. Plaintiffs' scattershot approach stands in
stark contrast to the particularized requests in
Gibbons and Sronkoski. Accordingly, the
Court finds that Plaintiffs have not demonstrated a
particularized need with respect to the executive session
hereby ORDERED that Plaintiffs' request to overrule
Defendants' assertion of deliberative process privilege
with respect to Plaintiffs' request for Defendants'
executive session minutes is DENIED.