Mendez v. The City of Chicago

          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 ...