United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION & ORDER
Honorable Thomas M. Durkin United States District Judge.
Ricardo Gomez alleges in this Title VII case that he was
subjected to a hostile work environment on account of his
ethnicity and national origin during his employment as a
firefighter with defendant the City of Chicago. The City has
filed a contested motion for entry of a confidentiality order
governing discovery (R. 27) and submitted a proposed
confidentiality order (R. 27-1). For the reasons explained
below, the Court grants the City's motion in part and
denies it in part.
has requested in discovery the findings and reports of the
City's investigation into a complaint he submitted with
the City's Department of Human Resources and any
resulting disciplinary records. The City seeks “to have
the documents related to the internal investigations by both
the Equal Employment Opportunity Division of the City of
Chicago and Internal Affairs” Division of the Chicago
Fire Department “designated as
‘Confidential'” and to “have
disciplinary records of non-parties . . . be kept
confidential as well.” R. 32 at 1.
objects to these designations. Specifically, he takes issue
with the following two subparts of paragraph 2 of the
City's proposed confidentiality order: “As used in
this Order, ‘Confidential Information' means
information designated as ‘CONFIDENTIAL' by the
producing party that falls within one or more of the
following categories: . . . (g) personnel or employment
records, including but not limited to disciplinary records,
of a person who is not party to the case or (h) documents
from any internal employer investigation into employee
complaints.” R. 27-1 at 1-2. Gomez also takes issue
with paragraph 11 of the proposed confidentiality order,
which provides procedures for the Court to decide how
“Confidential Information” is to be treated
during a later trial or hearing. Id. at 7.
Rule of Civil Procedure 26(c)(1) permits the Court,
“for good cause, [to] issue an order to protect a party
or person from annoyance, embarrassment, oppression, or undue
burden or expense” that might arise during discovery.
“Rule 26(c) allows a court to shield certain documents
from the public when there is good cause to do so.”
Bond v. Utreras, 585 F.3d 1061, 1074 (7th Cir.
2009). The rule “confers broad discretion on the trial
court to decide when a protective order is appropriate and
what degree of protection is required.” Gordon v.
Countryside Nursing & Rehab. Ctr., LLC, 2012 WL
2905607, at *2 (N.D. Ill. July 16, 2012). “The moving
party bears the burden of showing good cause for a protective
order. In determining whether there is good cause for a
protective order, the court must balance the harm to the
party seeking the protective order against the importance of
public disclosure.” Sokol v. City of Chicago,
2014 WL 5473050, at *1 (N.D. Ill. Oct. 29, 2014) (internal
citations omitted); accord Jacobs v. City of
Chicago, 2015 WL 231792, at *2 (N.D. Ill. Jan. 16,
2015); Lane v. Salgado, 2014 WL 889306, at *2 (N.D.
Ill. Mar. 5, 2014).
initial matter, the Court considers the extent to which the
records the City seeks to designate as confidential should be
treated analogously to complaint register files (“CR
files”) “generated by police oversight
agencies' investigations of citizen complaints of alleged
police misconduct.” See Fraternal Order of Police,
Chicago Lodge No. 7 v. City of Chicago, 2016 IL App
(1st) 143884, ¶ 1, appeal denied sub nom. Fraternal
Order of Police v. Chicago Police Sergeants Ass'n,
60 N.E.3d 872 (Ill. 2016). “Courts in this district
have frequently grappled with whether confidentiality orders
should define CR files as confidential with varying
results.” Jacobs, 2015 WL 231792, at *1
relies on cases addressing CR files to support his argument
against the disputed confidentiality order provisions. The
City disagrees that the records at issue are analogous to CR
files. It maintains that the unique public interest
considerations that apply to “investigations of police
misconduct initiated by public complaints” in CR files
are lacking in the context of “work environment
allegations” or “discipline imposed for conduct
of a coworker for allegations against an employee
personally.” R. 32 at 3.
least to the extent the Court can discern the contents of the
records in question based on the generalized descriptions in
the proposed confidentiality order, the Court agrees that
they implicate different privacy considerations than CR
files. This is evidenced by the fact that Illinois courts
have explicitly distinguished CR files from the types of
records at issue here in the course of determining that CR
files are subject to disclosure under the Illinois Freedom of
Information Act (“IFOIA”). The Illinois
Appellate Court in Kalven v. City of Chicago,
distinguished investigations into CRs based on a complaint
against a police officer filed by a public citizen from
“adjudications of either an employee grievance or
disciplinary case.” 2014 IL App (1st) 121846, ¶
14. The Kalven court explained that a CR does not
deal with an employee grievance (id.) or
“initiate [any] adjudication, nor can CRs themselves be
considered disciplinary.” Id. ¶ 20. On
that basis, the Kalven court held that the IFOIA
provision exempting “‘[r]ecords relating to a
public body's adjudication of employee grievances or
disciplinary cases'” did not apply to CRs.
Id. ¶¶ 14-32 (quoting 5 ILCS
140/1(7)(1)(n)). Unlike CR files, the “(g) . . .
disciplinary records, of a person who is not party
to the case or (h) documents from any internal employer
investigation into employee complaints” (R.
27-1 at 1) that the City seeks to designate as
confidential-to the extent they relate to an
“adjudication” within the meaning of IFOIA-appear
to fall within the IFOIA exemption addressed in
Kalven and thus to be subject to different privacy
City's proposed confidentiality order also seeks to
designate as confidential “personnel . . .
records” more generally. R 27-1 at 2. The Illinois
Appellate Court has distinguished CR files from personnel
files in several recent cases, explaining “that CR
files are not personnel files in any sense because they
pertain to the ‘initiation, investigation, and
resolution of complaints of misconduct made by the public
against police officers.'” Fraternal Order of
Police, 2016 IL App (1st) 143884, ¶ 50 (quoting
Watkins v. McCarthy, 2012 IL App (1st) 100632,
¶ 20). The Watkins court therefore held that an
exemption for personnel files in the prior version of IFOIA
and provisions in Illinois' Personnel Record Review Act
prohibiting disclosure of certain personnel records did not
apply to CR files. 2012 IL App (1st) 100632, ¶¶
19-20, 40-43. Because Illinois law differentiates between CR
files and the types of records the City's proposed
confidentiality order seeks to protect, the cases addressing
CR files on which Gomez relies are of limited applicability
event, even if certain or all of the records at issue were
analogous to CR files and subject to disclosure under IFOIA,
that would not mean that the public should be able to access
them during discovery in this case as Gomez argues. The
Seventh Circuit in Bond determined that an
intervenor did not have third-party standing to access CR
files produced in discovery and designated as confidential
pursuant to a protective order. 585 F.3d at 1073-78. Notably,
the Seventh Circuit's holding did not prevent the
intervenor from ultimately accessing CR files through IFOIA.
Indeed, the same intervenor later brought the Kalven
state court action in which Illinois Appellate Court held
that CR files are not exempt from disclosure under IFOIA.
2014 IL App (1st) 121846, ¶ 22; see also id.
¶ 30 (explaining that the “protective order in
Bond” had no “bearing on defendants'
duty to disclose . . . pursuant to a FOIA request”).
Seventh Circuit made clear in Bond that
“[t]here are good reasons to treat the public's
right to access filed and unfiled discovery materials
differently.” 585 F.3d at 1074. As the Supreme Court
has explained, “[m]uch of the information that surfaces
during pretrial discovery may be unrelated, or only
tangentially related, to the underlying cause of
action.” Seattle Times Co. v. Rhinehart, 467
U.S. 20, 33 (1984). And there is a “substantial
interest” in ensuring that the discovery process is not
“abuse[d]” such that it causes “damag[e] to
reputation.” Id. at 35 (quotation marks
omitted). Thus, “[s]ecrecy is fine at the discovery
stage, before the material enters the judicial record.”
Bond, 585 F.3d at 1075 (quotation marks omitted).
“The rights of the public kick in when material
produced during discovery is filed with the court.”
Bond, 585 F.3d at 1075; accord City of
Greenville, Ill. v. Syngenta Crop Prot., LLC, 764 F.3d
695, 697 (7th Cir. 2014).
question at this stage of the litigation is “whether
the potential harm” to the individuals whose files are
at issue “outweighs ‘the importance of disclosure
to the public'” of discovery materials.
Lane, 2014 WL 889306, at *2 (quoting Wiggins v.
Burge, 173 F.R.D. 226, 229 (N.D. Ill. 1997)). In support
of its argument that the potential for harm is significant,
the City cites its Diversity and Equal Employment Opportunity
Policy, which provides that “[a]ll complaints and
investigations will be kept confidential, to the extent
possible . . . . In order to maintain confidentiality, the
EEO Division may limit the distribution of the Investigation
Report and the Investigative file.” R. 32, Ex. A. The
City explains that it has a substantial interest in
“protect[ing] its investigation files to maintain the
integrity of the investigation and encourage
complainant-employees and witnesses to be forthcoming,
” and further that “public disclosure of
disciplinary documents of non-parties could cause
embarrassment.” R. 32 at 5.
purposes of the discovery stage of this litigation, the Court
finds that the significant privacy interests identified by
the City outweigh the generalized public interest asserted by
Gomez in “enabl[ing] the people to fulfill their duties
of discussing public issues . . . making informed judgments
and monitoring government” (R. 31 at 6). As this Court
explained when reaching a similar conclusion in
This does not mean that [Gomez] will not have the opportunity
to publicly file and thereby publicize information [in the
files] at an appropriate time in the course of this
litigation. On summary judgment or at trial, the Court will
be required to address any evidence that is relevant to
[Gomez's] claims, and in that context, [Gomez] may be
permitted to expose that evidence to public scrutiny.
Evidence that is necessarily part of the decision-making
process almost ...