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Rodriguez v. The City of Chicago

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

August 1, 2019

THE CITY OF CHICAGO, et al, Defendants.

          Robert M. Dow District Judge.



         On 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).

         I. Background to Plaintiff's Motion to Compel

         On 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.)

         A. Legal Standard

         Federal 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).

         B. Judge Kim's February 6, 2019 Opinion

         This is 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.

         II. Deliberative Process Privilege

         "The 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 1389).

         Courts apply a two-part test to evaluate deliberative process privilege claims. That test is set forth and applied to the motion to compel below.

         A. The Prima Facie Case for Whether the Deliberative Process Privilege Applies

         First, 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).

         On May 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.

         The 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.

         1. Personal ...

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