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Bahena v. City of Chicago

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

June 11, 2018

CITY OF CHICAGO, et al., Defendants.


          Jeffrey T. Gilbert, Magistrate Judge

         This matter is before the Court on Plaintiffs Motion to Compel [ECF No. 10] third party Cook County State's Attorney's Office to produce a document being withheld on the basis of the deliberative process privilege. For the reasons set forth herein, Plaintiffs Motion to Compel is granted.

         I. BACKGROUND

         This case arises from the arrest and incarceration of Plaintiff Ramiro Bahena for a double homicide that occurred on June 17, 2012. After he spent almost two years in jail, the Cook County State's Attorney's Office dismissed all charges against Plaintiff on April 1, 2014, and he was released from jail. Plaintiff has sued the City of Chicago and a number of individual police officers alleging malicious prosecution and violations of his Fourth Amendment rights arising from his false arrest and prosecution for the double murder. This case originally was filed in state court and was removed to federal district court on November 27, 2017 [ECF No. 1].

         During the course of discovery in the state court case, Defendants issued a subpoena to the Cook County State's Attorney's Office for the underlying criminal file in the state court matter, People v. Ramiro Bahena, No. 12 CR 14983. In response to Defendants' subpoena, the State's Attorney's Office produced approximately 174 pages of documents, withheld other documents on the basis of privilege and submitted a privilege log in support of its withholding of those documents. After the case was removed, Plaintiff issued his own subpoena for the underlying criminal file.

         Plaintiff initially filed this Motion to Compel [ECF No. 10] seeking the production of the documents in the State's Attorney's Office's criminal file that were being withheld on the basis of privilege. The parties have met, conferred, and resolved most of their outstanding disputes; only one issue remains. Plaintiff seeks to compel the production of one document, and the State's Attorney's Office argues that the document is protected by the deliberative process privilege. The document at issue is a two-page memorandum dated March 21, 2014, written by Assistant State's Attorney Nancy Galassini (now Aducci) (hereinafter referred to as the "Galassini Memorandum"). It was emailed by Assistant State's Attorney Galassini to Fabio Valentini who, at the time, was Chief of the Criminal Prosecutions Bureau of the State's Attorney's Office. At the same time, Galassini also sent a copy of the memo to Joseph Magats who was Deputy Chief of the Criminal Prosecutions Bureau when the memo was sent. The Galassini Memorandum includes a summary of the facts of the case and sets forth Assistant State's Attorney Galassini's observations, opinions and recommendation as to how to proceed with the Bahena prosecution.


         Federal Rule of Civil Procedure 26(b)(1) states that "[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit." Fed.R.Civ.P. 26(a)(1). A party claiming that otherwise discoverable information is privileged must "expressly make the claim, " and "describe the nature of the documents, communications, or tangible things ... in a manner . . . that will enable other parties to assess the claim, " Fed.R.Civ.P. 26(b)(5)(A); see also Fed. R. Cev. P. 45(e)(2)(A). This means that the burden rests upon the party objecting to disclosure to show why the information is privileged and should not be produced. See Kodish v. Oakbrook Terrace Fire Prot, Dist, 235 F.R.D. 447, 450 (N.D. Ill. 2006). Finally, district courts have broad discretion when ruling on discovery-related issues, including motions to compel brought under Rule 37(a). See Peals v. Terre Haute Police Dep't, 535 F.3d 621, 629 (7th Cir. 2008); see also Fed. R. Civ. P. 37(a).

         III. ANALYSIS

         The State's Attorney's Office contends that the Galassini Memorandum constitutes deliberative process material and is protected from disclosure by the deliberative process privilege. The State's Attorney's Office characterizes the Galassini Memorandum as being used "for the purpose of an internal discussion of the matter for the purpose of making a decision on behalf of the SAO as to whether the office would nolle prosequi the prosecution in People v. Ramiro Bahena" Declaration of Joe Magats in Support of Deliberative Process Privilege [ECF 24-1], at 15-16. Plaintiff objects and seeks the production of the Memorandum. The State's Attorney's Office submitted the Galassini Memorandum to the Court for an in camera review.

         A. The Deliberative Process Privilege Protects Portions of the Galassini Memorandum

         The deliberative process privilege "serves to protect the quality of the flow of ideas within a government agency." United States v. Bd. of Edac. of the City of Chi., 610 F.Supp. 695, 697 (N.D. Ill. 1985); accord United States v. Farley, 11 F.3d 1385, 1389 (7th Cir. 1993) ("Since frank discussion of legal and policy matters is essential to the decisionmaking process of a governmental agency, communications made prior to and as a part of an agency determination are protected from disclosure.")- To this end, the privilege shields "communications that are part of the decision-making process of a governmental agency." Farley, 11 F.3d at 1389 (citing NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150-52, (1975)). These communications include "documents reflecting advisory opinions, recommendations[, ] and deliberations comprising part of the process by which governmental decisions and policies are formulated." Dep't of Interior v. Klamath Water Users Protective Assoc, 532 U.S. 1, 9 (2001) (citing Sears, Roebuck & Co., 421 U.S. at 150).

         The deliberative process privilege applies if the documents are both "'predecisional'- generated before the adoption of an agency policy-and 'deliberative'-reflecting the give and take of the consultative process." Holmes v. Hernandez, 221 F.Supp.3d 1010, 1016 (N. D. Ill. 2016) (quoting Cont'l III Nat'l Bank & Trust Co. of Chi. v. Indem. Ins. Co. of N. Am., 1989 WL 135203, at *2 (N.D. Ill. Nov. 1, 1989)); see also Patrick v. City of Chicago, 111 F.Supp.3d 909, 915 (N.D. Ill. 2015). This means that the privilege does not extend to "factual or objective material, " or to documents that "an agency adopts ... as its position on an issue." Id. (quoting Cont'l III., 1989 WL 135203, at *2); accord Enviro Tech Infl, Inc. v. U.S. E.P.A., 371 F.3d 370, 374 (7th Cir. 2004). Neither does the privilege extend to "[communications made subsequent to an agency decision . . . ." Holmes, 221 F.Supp.3d at 1016 (quoting Farley, 11 F.3d at 1389). Courts have said, however, that although the deliberative process privilege "does not justify the withholding of purely factual material, or of documents reflecting an agency's final policy decisions ... it does apply to predecisional policy discussions, and to factual matters inextricably intertwined with such discussions, " Patrick, 111 F, Supp. 3d at 915, citing Enviro Tech Int'l, Inc. v. U.S. E.P.A., 371 F.3d 370, 374-75 (7th Cir. 2004) (discussing the application of the deliberative process exemption under the Freedom of Information Act).

         There is a two-step process for determining whether the deliberative process privilege applies. Holmes, 221 F.Supp.3d at 1016; Patrick, 111 F.Supp.3d at 915-916. First, the government must show that the privilege applies to the documents at issue. Holmes, 221 F.Supp.3d at 1016; see also Evans, 231 F.R.D. at 316; Ferrell v. U.S. Dep't of Hous. and Urban Dev.,177 F.R.D. 425, 428 (N.D. Ill. 1998). If the government makes out a prima facie case that the privilege applies, then the burden shifts to the party seeking disclosure to establish "a particularized need" for the documents and that the party's need for the document outweighs the ...

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