United States District Court, N.D. Illinois, Eastern Division
HESTER MENDEZ and GILBERT MENDEZ, for themselves and on behalf of their minor children, P.M. and J.M., Plaintiffs,
v.
THE CITY OF CHICAGO, JOSEPH T. CAPELLO IV, SAMUEL DARI, MICHAEL W. DONNELLY, RUSSELL A. EGAN, MICHAEL J. GUZMAN, JOSE M. HERNANDEZ, and ERIC M. SEHNER, Defendants.
MEMORANDUM OPINION AND ORDER
Young
B. Kim United States Magistrate Judge.
Plaintiffs
are suing the City of Chicago and the named Chicago Police
Officers in connection with their execution of a search
warrant at Plaintiffs' home. Before the court is
Defendants' motion for a protective order. Defendants
seek an order prohibiting the public release of discovery
materials, including deposition testimony, and to prevent
Plaintiffs and their counsel from publicly discussing this
lawsuit. For the following reasons, the motion is granted in
part and denied in part:
Background
On
November 7, 2017, Defendant Officers executed a search
warrant at Plaintiffs' apartment. (R. 125, Pls.' 4th
Am. Compl. ¶ 2; R. 134, Defs.' Mot. at 1.)
Plaintiffs allege that during the execution of the warrant,
Defendant Officers “repeatedly pointed and held guns
directly” at Plaintiffs J.M. and P.M., who were only
five and nine years old at the time. (R. 125, Pls.' 4th
Am. Compl. ¶ 2.) Plaintiffs further allege that
Plaintiff Gilbert Mendez, the children's father, was
handcuffed “in front of his sons, for approximately 90
minutes or throughout the duration of [Defendant
Officers'] search.” (Id. ¶ 3.)
Defendant Officers also screamed and used profanity during
the search, according to Plaintiffs. (Id. ¶ 4.)
Plaintiffs bring this action pursuant to 42 U.S.C. §
1983 and Monnell v. Department of Social Services,
436 U.S. 658 (1978), alleging, among other things, unlawful
de facto policies violating the right to be free of
excessive force. (Id. ¶¶ 8, 113-223.)
Defendants
in turn assert that Defendant Officers executed “a
valid search warrant” intending “to seize a large
amount of heroin and crack cocaine.” (R. 134,
Defs.' Mot. at 1.) According to Defendants, the informant
who provided the location of “the large cache of
narcotics” appeared before a judge and answered
questions before the judge issued the subject warrant.
(Id. at 2.) When Defendant Officers entered the
apartment identified by the informant, “[t]he apartment
smelled of burnt cannabis, ” according to them.
(Id.) During the search, Defendants contend that
“[n]o guns were pointed at children” and the boys
were not touched. (Id.) They further defend that the
entire incident lasted about 13 minutes. (Id.)
In
their motion Defendants argue that Plaintiffs have publicized
discovery information in an effort to try “their case
in the media” before a trial takes place.
(Id.) They allege that Plaintiffs and their attorney
have participated in press conferences and interviews and
have released Defendant Officers' body camera video
footage as well as the footage from their video depositions.
(Id. at 2-3, 5.) Defendants contend that the
media's coverage of the incident has been
“one-sided” and unfairly prejudicial toward them.
(Id. at 3.) Defendants therefore move for a
protective order restricting public disclosure of discovery
materials, including the depositions of the Defendant
Officers, and prohibiting Plaintiffs and their counsel from
publicly discussing this case until the matter is fully
resolved. (Id. at 3-4.)
Analysis
Defendants
assert that good cause exists under Federal Rule of Civil
Procedure 26(c) to enter the requested protective order. Rule
26(c) provides that “[t]he court may, for good cause,
issue an order to protect the party from annoyance,
embarrassment, oppression, or undue burden or expense.”
The party seeking entry of the protective order must
establish good cause, which requires a showing that
“disclosure will cause a clearly defined and serious
injury, ” Caine v. City of Chi., No. 11 CV
8996, 2012 WL 13059125, at *1 (N.D. Ill. June 28, 2012). Good
cause generally exists where there is “a sound basis or
legitimate need to take judicial action.” Wiggins
v. Burge, 173 F.R.D. 226, 229 (N.D. Ill. 1997). The
court must consider the facts and circumstances of each case
and balance the interests involved when deciding whether
there is good cause to enter a protective order.
Caine, 2012 WL 13059125, at *1; see also Hobley
v. Burge, 225 F.R.D. 221, 224 (N.D. Ill. 2004).
“[A] court has broad discretion in fashioning
appropriate protective orders.” McGee v. City of
Chi., No. 04 CV 6352, 2005 WL 3215558, at *2 (N.D. Ill.
June 23, 2005).
A.
Discovery Materials
Defendants
seek to prohibit the release of depositions, along with other
discovery materials, to avoid unfairly “taint[ing] the
jury pool, thus impairing Defendants' right to a fair
trial.” (R. 134, Defs.' Mot. at 4.) Plaintiffs
respond that no judicial interference is likely to occur
where discovery is ongoing, and a trial date has not been
set. (R. 151, Pls.' Resp. at 1, 10-12.) They contend that
Defendants' request is tantamount to an effort to
“gag” them by preventing them from discussing
non-confidential information about a matter of grave public
concern-police officers allegedly pointing guns at young
children. (Id. at 1, 3, 12-16.)
The
public generally has a right of access to judicial
proceedings and materials “that influence or underpin
the judicial decision, ” provided they are not
confidential. Baxter Int'l, Inc. v. Abbott
Labs., 297 F.3d 544, 545 (7th Cir. 2002) (citing
Seattle Times Co. v. Rhinehart, 467 U.S. 20, 32-33
(1984)). But “[s]ecrecy is fine at the discovery stage,
before the material[s] enter[] the judicial record.”
Id. This is because “the public interest in
access to materials that form the basis of a judicial
decision is greater than in other materials generated in the
discovery process.” Hobley, 225 F.R.D. at 224.
Thus, a court may prohibit the release of discovery
materials, such as depositions, before trial without running
afoul of the First Amendment. Seattle Times, 467
U.S. at 32-33 (“[Restraints placed on discovered, but
not yet admitted, information are not a restriction on a
traditionally public source of information.”).
Defendants
first ask the court to preclude the disclosure of Defendant
Officers' depositions in video and written format.
“[D]issemination of . . . videotaped depositions for
broadcasting [can be] particularly troubling” in
certain matters. Hobley, 225 F.R.D. at 226; see
also Felling v. Knight, No. 01 CV 0571, 2001 WL 1782360,
at *2 (S.D. Ind. Dec. 21, 2001) (noting that
“[v]ideotapes are subject to a higher degree of
potential abuse” than written transcripts because they
may be “cut and spliced”). Video snippets may
make good “soundbite[s], ” but they have the
potential to expose the jury pool to “memorable
image[s]” that may influence the resolution of the
case. Hobley, 225 F.R.D. at 226. This problem is
exacerbated by the fact that today's society is relying
increasingly more on video and audio clips and headlines for
news. Thus, where a party seeking a protective order has made
the requisite showing of good cause to prohibit the release
of videotaped depositions, courts generally have entered such
orders. See, e.g., id.; Caine,
2012 WL 13059125, at *2 (restricting release of video
depositions and noting that “the sealing of videotape
depositions has been approved” in a number of cases).
Not all
courts share the same concerns about potential abuse with the
release of written deposition transcripts. With video, once
an inflammatory image is played, it is “out there
forever[, ] [a]nd it becomes really hard to put the cat back
into the bag.” Chatman v. City of Chi., No. 13
CV 5697, Dkt. 173 at 17 (Nov. 19, 2015 Hearing Tr.). By
contrast, written deposition transcripts, generally being
bulky in nature, “are less susceptible to wide public
distribution.” Caine, 2012 WL 13059125, at *2
(citing Felling, 2001 WL 1782360, at *2); but
see Hobley, 225 F.R.D. at 226 (finding good cause for
entry of protective order barring dissemination of deposition
transcripts and videotapes because of the facts of the case).
In
light of the relevant facts and circumstances of this case,
the court finds good cause to prevent dissemination of
Defendant Officers' depositions in video format only.
Defendants have a right to a fair trial, and thus where the
deponents are named Defendants, their interest in protecting
their right to a fair trial by preventing “cut and
spliced” video from tainting the jury pool outweighs
the public interest in disclosing the footage. See
Caine, 2012 ...