United States District Court, N.D. Illinois, Eastern Division
M. Dow District Judge.
MEMORANDUM OPINION AND ORDER
GABRIEL A. FUENTES UNITED STATES MAGISTRATE JUDGE.
October 6, 2017, Plaintiff, Venus Rodriguez, a Chicago Police
officer, filed this lawsuit against the City of Chicago
("the City") and several other members of the
Chicago Police Department ("CPD") under 42 U.S.C.
§ 1983, alleging that after she reported being
physically assaulted at Mr. C's Midway Bar by an unknown
CPD officer, Defendants unlawfully retaliated against her by
refusing to pursue or investigate her criminal complaint and
instead launching an investigation against Plaintiff. (D.E.
1, Compl.) Plaintiff also brings a claim against the City
under Monell v. Department of Social Services of the City
of New York, 436 U.S. 658 (1978), alleging that
Defendants acted together with investigators pursuant to a
"code of silence," which discourages CPD officers
from exposing fellow officers' misconduct. On April 22,
2019, Magistrate Judge Kim granted Defendants' motion to
bifurcate the Monell claim and stay Monell
discovery pending disposition of the claims against the
individual Defendants. (D.E. 162.) On April 30, 2019, Judge
Kim extended fact discovery to June 14, 2019 and expert
discovery to August 19, 2019. (D.E. 167.) Now pending before
this Court are Plaintiffs Motion to Compel (D.E. 170) and her
Motion to Modify Discovery Deadlines (D.E. 168).
Background to Plaintiff's Motion to Compel
April 22, May 3, and May 20, 2019, the City produced
additional or amended privilege logs asserting that an
investigative privilege and the deliberative process
privilege applied to certain documents related to "Log
File No. 1077459," the file associated with the
investigation started by IPRA (the Independent Police Review
Authority) into Plaintiffs complaint against the unidentified
CPD officer and continued by COPA (the Civilian Office of
Police Accountability), which replaced IPRA as the civilian
oversight agency of the CPD on September 15, 2017. The City
produced some of the documents but continues to assert the
deliberative process and, arguably, the investigatory
privilege over the documents Bates-labeled: 4544-4556,
4557-69, 4570-81, 4582-93, 4594-4607, 10377, 10745, 10747,
10749, 10751, 10834-35 and 10860 ("the Withheld
Materials"). (D.E. 175, City's Resp. at 2.)
Plaintiff now moves the Court to compel the City to produce
the Withheld Materials. (D.E. 178, Pl.'s Reply Re: Mot.
to Compel at 1.)
common law applies to the question of privilege in this
federal question suit. See Hamdan v. Ind. Univ. Health N.
Hosp., Inc., 880 F.3d 416, 421 (7th Cir. 2018). The City
does not dispute that the Withheld Materials are relevant and
otherwise discoverable under Federal Rule of Civil Procedure
26(b)(1). In general, courts construe privileges narrowly
because "they are in derogation of the search for
truth." Valero Energy Corp. v. United States,
569 F.3d 626, 630 (7th Cir. 2009). The privileges at issue
here should be applied "as narrowly as consistent with
efficient Government operation." Fed. Deposit Ins.
Corp. v. Giancola, No. 13 C 3230, 2015 WL 5559599, at *4
(N.D. Ill. Sept. 18, 2015) (quoting Coastal States Gas
Corp. v. Dep't of Energy, 617 F.2d 854, 868 (D.C.
Cir. 1980)). In addition, "caution should be especially
taken in recognizing a privilege in a federal civil rights
action, where any assertion of privilege must overcome the
fundamental importance of a law meant to protect citizens
from unconstitutional state action." Kodish v.
Oakbrook Terrace Fire Prot. Dist., 235 F.R.D. 447, 451
(N.D. Ill. 2006). The Court has broad discretion in ruling on
motions to compel. See James v. Hyatt Regency Chicago,
101 F.3d 775, 784 (7th Cir. 2013).
Judge Kim's February 6, 2019 Opinion
not the first time the City has withheld documents from Log
File No. 1077459 on the grounds of the deliberative process
and investigative privileges. On November 19, 2018, Plaintiff
moved to compel the City to produce 34 other documents
withheld on these grounds. After an in camera review
of those documents and briefing by the parties, Judge Kim
issued a memorandum opinion and order on February 6, 2019,
holding that the deliberative process and investigative
privileges did not apply to 12 of the documents.
Rodriguez v. City of Chicago, 329 F.R.D. 182, 187,
189 (N.D. Ill. 2019) (D.E. 135). Judge Kim ordered those
documents be produced subject to an attorneys'-eyes-only
designation. 329 F.R.D. at 190. As to the remaining 22
documents to which the deliberative process applied, Judge
Kim held that Plaintiffs interest in reviewing them did not
"override the City's interest in maintaining their
privacy." Id. at 189.
Deliberative Process Privilege
deliberative process privilege protects communications that
are part of the decisionmaking process of a governmental
agency." United States v. Farley, 11 F.3d 1385,
1389 (7th Cir. 1993). The privilege "rests on the
obvious realization that officials will not communicate
candidly among themselves if each remark is a potential item
of discovery and front page news, and its object is to
enhance the quality of agency decisions by protecting open
and frank discussion among those who make them within the
Government." Dep't of Interior v. Klamath Water
Users Protective Ass'n, 532 U.S. 1, 8-9 (2001)
(internal quotation marks and citation omitted). It
"covers documents reflecting advisory opinions,
recommendations and deliberations comprising part of a
process by which governmental decisions and policies are
formulated." Id. at 8 (internal quotation marks
omitted). "[T]he Seventh Circuit also has applied the
privilege in cases where the communications at issue involved
how a governmental agency intended to rule in a particular,
individual situation." Fed. Deposit Ins. Corp. v.
Giancola, No. 13 C 3230, 2015 WL 5559599, at *2 (N.D.
Ill. Sept. 18, 2015) (citing Farley, 11 F.3d at
apply a two-part test to evaluate deliberative process
privilege claims. That test is set forth and applied to the
motion to compel below.
The Prima Facie Case for Whether the Deliberative
Process Privilege Applies
the Court asks "whether the party asserting the
privilege has shown that the privilege applies to the
documents it seeks to protect." Rodriguez, 329
F.R.D. at 186 (citing K.L., L.F. & R.B. v.
Edgar, 964 F.Supp. 1206, 1208 (N.D. Ill. 1997)). At this
step, the party asserting the deliberative process privilege
must make out a prima facie case that a document it
seeks to withhold is "both predecisional in the sense
that it is actually antecedent to the adoption of an agency
policy, and deliberative in the sense that it is actually
related to the process by which policies are
formulated." Enviro Tech Int'l, Inc. v. U.S.
EPA., 371 F.3d 370, 375 (7th Cir. 2004). To establish
a. prima facie case,
(1) the department head with control over the matter must
make a formal claim of privilege, after personal
consideration of the problem; (2) the responsible official
must demonstrate, typically by affidavit, precise and certain
reasons for preserving the confidentiality of the documents
in question; and (3) the official must specifically identify
and describe the documents.
Rodriguez, 329 F.R.D. at 186 (quoting Ferrell v.
U.S. Dep't of Hous. & Urban Dev., 177 F.R.D.
425, 428 (N.D. Ill. 1998)). The documents being withheld must
be described in "sufficient detail." Turner v.
City of Chicago, No. 15 C 06741, 2017 WL 552876, at *3
(N.D. Ill. Feb. 10, 2017).
20, 2019, as an attachment to its brief in response to
Plaintiffs motion to compel, the City submitted a declaration
from Angela Hearts-Glass, Deputy Chief Administrative Officer
of COP A, asserting that the documents at issue are
privileged. (City's Resp. Ex. D: Hearts-Glass 05/20/19
Decl.) Ms. Hearts-Glass asserted that her declaration was
"based on [her] professional experience and a review of
the records described in this verification over which COPA
has asserted an investigative and deliberative process
privilege." (Id. ¶ 3.) Initially, she
described the records as 54 pages of documents consisting of
"draft summary reports and findings," "draft
allegations and notes" and "the official CLEAR
file" for the investigation into "still-open COPA
Log File No. 1077459." (Id. ¶¶ 4-5.)
The Court, on its consideration of the motion to compel,
discovered that her reference to the Withheld Materials
contained several errors, which warranted requiring the City
to submit a corrected declaration before the Court could
consider whether the City had established a prima
facie case as to the applicability of the deliberative
process privilege. (D.E. 188.) On July 29, 2019, the City
submitted a corrected declaration identifying 72 pages of
withheld documents (D.E. 190), all of which previously had
been submitted to the Court for in camera review.
Court finds that Ms. Hearts-Glass's corrected
declaration, and the Court's in camera review of
the Withheld Materials, have established a prima
facie case for the applicability of the deliberative
process privilege to all but one portion of one document from
the Withheld Materials, as set forth further below.