United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
R. Harjani United States Magistrate Judge.
matter is before the Court on Plaintiffs Motion for a
Protective Order  and Defendant City of Chicago's
Cross-Motion for a Protective Order . 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
Doc. [119-4] at 11-12. For the reasons that follow, the
City's cross-motion  is granted and Plaintiffs
motion  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
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.
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.").
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).
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
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).
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
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 ...