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Prince v. Kato

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

July 30, 2019

KRISTON KATO et al, Defendant.


          Sunil R. Harjani United States Magistrate Judge.

         This matter is before the Court on Plaintiffs Motion for a Protective Order [107] and Defendant City of Chicago's Cross-Motion for a Protective Order [118]. The parties' dispute primarily pertains to the treatment of the Chicago Police Department's Complaint Register files (CR files) and Plaintiffs ability to publicly disseminate them A CR file is created whenever a person complains about a Chicago police officer. CR files may contain the City's investigation of and response to the complaint, and may also reflect any discipline or other corrective action taken against an officer. Plaintiff proposes entry of the Court's model protective order, which does not explicitly address CR files. Doc. [107-1]. Alternatively, Plaintiff moves for entry of a protective order that would require the City to produce two sets of CR files: one redacted for public release and the other unredacted to be treated confidentially. Doc. [107-2] at 4. In contrast, the City's proposed order would treat CR files produced in discovery as confidential, and would require Plaintiff to file a separate non-judicial request under the Illinois Freedom of Information Act (IFOIA), 5 ILCS 140/1 et seq., to obtain redacted copies for public release. Doc. [119-4]. To effectuate this, the City's proposed order provides:

18. Public Disclosure of Documents Designated "Confidential." This Order prohibits the disclosure of any document designated as a "confidential" subject to the limitations of Section 4(b). Any party or counsel seeking to use or disclose confidential information for any reason other than for purposes of this litigation, including for public disclosure, will not use the documents designated as "Confidential" but shall instead comply with the requirements set forth under the Illinois Freedom of Information Act ("IFOIA"), 5 ILCS 140/et. seq., to obtain the desired documents from the proper public body.

Doc. [119-4] at 11-12. For the reasons that follow, the City's cross-motion [118] is granted and Plaintiffs motion [107] is denied. Within 7 days of the entry of this Opinion, the parties shall submit a revised protective order consistent with this order to the Court for its review and entry.

         I. BACKGROUND

         This Section 1983 lawsuit alleges that due to Defendant Chicago Police officers' misconduct, including fabricating a false confession, Plaintiff was wrongly convicted and served 25 years in prison for a crime that he did not commit. The lawsuit further alleges that Defendants' interrogation of Plaintiff was an example of an established practice in the City of Chicago of securing involuntary incriminating statements from innocent criminal suspects with illegal interrogation tactics. Plaintiff also alleges the City did not properly supervise or discipline police officers such that officer misconduct was both unchecked and encouraged.


         For good cause, the court may limit the scope of discovery "to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense." Fed.R.Civ.P. 26(c)(1). Rule 26(c) confers broad discretion on the trial court to decide when a protective order is appropriate and what degree of protection is required. County Materials Corp. v. Allan Block Corp., 502 F.3d 730, 739 (7th Cir. 2007) (citing Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984)). "Absent a protective order, parties to a lawsuit may disseminate materials obtained during discovery as they see fit." Jepson, Inc. v. Makita Elec. Works, Ltd., 30 F.3d 854, 858 (7th Cir. 1994) (internal citation omitted); Jackson v. City of Chicago, No. 14-cv-6746, 2017 WL 5478308, at *1 (N.D. 111. Nov. 14, 2017). Although the public has a presumptive right to access discovery materials that are filed with the court, "the same is not true of materials produced during discovery but not filed with the court." Bond v. Utreras, 585 F.3d 1061, 1073 (7th Cir. 2009); see also Citizens First Nat'l Bank of Princeton v. Cincinnati Ins. Co., 178 F.3d 943, 944 (7th Cir. 1999) ("pretrial discovery, unlike the trial itself, is usually conducted in private.").

         To determine whether a party has shown good cause for the requested protective order, the district court must balance the parties' interests, taking into account the importance of disclosure to the nonmovant and the potential harm to the party seeking the protective order. See, e.g., Jackson, 2017 WL 5478308, at *1 (citing Calhoun v. City of Chicago, 273 F.R.D. 421, 422 (N.D. 111. Apr. 8, 2011)). The party requesting a protective order - even if both parties agree that one should be entered - bears the burden to show that good cause exists for it under Rule 26. See Jepson, 30 F.3d at 858; see also Central States, Se. & Sw. Areas Pension Fund v. Nat'l Lumber Co., 2012 WL2863478, at *2 (N.D. 111. July 11, 2012) (internal citation omitted).

         "Courts in this district have long struggled with the confidentiality of CR files and have reached differing conclusions." Sierra v. Guevara, et al., Doc. 118 (N.D. 111. June 7, 2019) (citing Calhoun v. City of Chi., 273 F.RD. 421, 423 (N.D. 111. 2011)). However, a degree of clarity was brought to this question in March 2014 when an Illinois Appellate Court held that CR files are not exempt from disclosure under IFOIA, 5 ILCS 140/1 et seq., meaning that the public may now obtain them outside of the discovery process. Kalven v. City of Chi., 2014 IL App (1st) 121846, at ¶ 22 (2014) (vacated on other grounds); see also Sierra, 1:18-cv-3029, Doc. 118 at 3 ("The Illinois Appellate Court made clear that Plaintiff may obtain redacted CR files through an IFOIA request.").

         Indeed, post-Kalven, federal judges in this district have entered confidentiality orders like the one proposed by the City __ allowing confidential treatment of CR files produced in discovery with the understanding that the public would be able to obtain redacted versions of the same documents under IFOIA. See, e.g., Mendez v. City of Chi., 18-cv-5560, Docs. [76-1 and 80] (N.D. 111. April 3, 2019); Bailey v. City of Chi., 19-cv-197, Doc. 58-59, (N.D. 111. June 12, 2019); Maysonet v. Guerva et al., 18-CV-2342, Docs. No. 42 and 44 (N.D. 111. August 14, 2018); Serrano v. Guevara et al., 17-CV-2869, Doc. 116 (N.D. 111. October 2, 2018).[1]

         Nevertheless, post-Kalven, federal judges in this district have also entered confidentiality orders like Plaintiffs proposed orders. See, e.g., Sierra, 1:18-cv-3029, Doc. 118 at 3 (ordering the City to produce CR files with the same redactions allowed under IFOIA where Plaintiff had already received the unredacted CR files from Defendants); Jackson, No. 14-cv-6746, 2017 WL 5478303, at *2 ("In the wake of Kalven, several judges in this district have ruled that a blanket order forbidding dissemination of the contents of CR files to third parties cannot be justified."); Jacobs v. City of Chicago, No. 14-cv-5335, 2015 WL 231792, at *2 (N.D. 111. Jan. 16, 2015) (issuing a modified protective order to cover certain sensitive, private information contained in CR files that establishes parameters for the public release of redacted CR documents for purposes other than the applicable lawsuit).


         As previewed above, the issue here is not whether Plaintiff can receive CR files. Rather, it is how Plaintiff should obtain CR files that they may publicly release: through discovery proceedings governed by the Federal Rules of Civil Procedure or through a separate non-judicial request made pursuant to IFOIA. The answer as to how ...

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