Bond v. Utreras

Decision Date10 November 2009
Docket NumberNo. 07-2651.,07-2651.
PartiesDiane BOND, Plaintiff, v. Edwin UTRERAS, Andrew Schoeff, Christ Savickas, Robert Stegmiller, and Joseph Seinitz, in their individual capacities; Phillip Cline, Superintendent of the Chicago Police Department, Terry Hillard, Former Superintendent of the Chicago Police Department, and Lori Lightfoot, Former Chief Administrator of the Office of Professional Standards, in their official capacities; and City of Chicago, Defendants-Appellants, v. Jamie Kalven, Intervenor-Appellee, and Toni Preckwinkle, et al., Intervening Appellees.
CourtU.S. Court of Appeals — Seventh Circuit

Craig B. Futterman, Mandel Legal Aid Clinic, Chicago, IL, for Plaintiff.

Myriam Z. Kasper (argued), Nadine J. Wichern, Office of the Corporation Counsel, Chicago, IL, for Defendants-Appellants.

Cara A. Hendrickson (argued), Matthew J. Piers, Hughes Socol Piers Resnick & Dym, Chicago, IL, for Intervening Appellees.

Jonathan I. Loevy (argued), Loevy & Loevy, Chicago, IL, for Intervenor-Appellee.

Before KANNE, SYKES, and TINDER, Circuit Judges.

SYKES, Circuit Judge.

Diane Bond sued the City of Chicago and several members of its police department, claiming that the officers violated her constitutional rights while performing official duties. During discovery, the City turned over voluminous material relating to citizen complaints against its police officers; the information was subject to a protective order that prohibited public disclosure of these confidential records. The documents produced during discovery were never filed with the court nor used in any judicial proceeding.

Bond eventually settled with the City and its officers (collectively "the City"), and the parties submitted a stipulation and order for dismissal to the district court. Just before the court entered the order, however, independent journalist Jamie Kalven petitioned for permission to intervene so he could challenge the protective order. Kalven claimed that under Rule 26(c) of the Federal Rules of Civil Procedure, there was no "good cause" to maintain the protective order and asked that it be modified to allow him access to some of the documents pertaining to citizen complaints against Chicago police officers. (Kalven is joined on appeal by 28 Chicago aldermen who also want access to these police department records.) The district judge dismissed the case with prejudice pursuant to the parties' stipulation but said she would keep the case "open" for purposes of entertaining Kalven's intervention petition.

Bond did not join Kalven's request to modify the protective order. The City objected to any modification, arguing that the order should be left in place given the department's interest in keeping these records confidential. A few months after dismissing the case, the district judge entered an order simultaneously granting Kalven's request to intervene and lifting the protective order in its entirety. The City appealed, and we stayed the district court's order.

We now vacate that order; Kalven's petition should have been dismissed for lack of standing. The controversy originally supporting the court's jurisdiction no longer existed at the time the court acted on Kalven's petition; the parties had settled, the case was dismissed with prejudice, and neither Bond nor the City asked the court to revisit and modify the terms of the protective order postjudgment. With no live controversy ongoing, Kalven was required to demonstrate his standing to intervene and resuscitate the case — that is, he was required to establish that he met the requirements of Article III by showing an actual or imminent invasion of a legally protected interest. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Although no one challenged his standing below or on appeal and the district court did not independently address it, we are required to satisfy ourselves that jurisdictional prerequisites are met. We conclude they are not.

Kalven claims no constitutional or common-law right to challenge the protective order — rightly so, because there is no constitutional or common-law right of public access to discovery materials exchanged by the parties but not filed with the court. Unfiled discovery is private, not public. Furthermore, Bond has not asserted an interest in disseminating the documents (she agreed to the protective order and did not ask that it be modified), so Kalven cannot, and does not, claim a derivative First Amendment right to receive them. Instead, Kalven based his intervention petition on a supposed "presumption" of public access emanating from Rule 26(c)'s "good cause" requirement. There is no such presumption for discovery that is not part of the court file and therefore no "right" or legally protected interest to support Kalven's standing to intervene. The district court lacked any alternative jurisdictional basis to revisit and revoke the protective order sua sponte. Accordingly, we vacate the court's order permitting intervention and lifting the protective order, and remand with instructions to dismiss Kalven's petition for lack of standing.

I. Background

This appeal arises out of a § 1983 action Diane Bond filed in 2004 against eight Chicago police officers and supervisors and the City of Chicago. Bond alleged that the police officers had subjected her to various forms of physical and mental abuse while performing their official duties. During pretrial discovery, the parties agreed to a protective order that prohibited public disclosure of certain confidential materials. The order covered "employment, disciplinary, [and] investigatory" information; "other information that is of a sensitive or nonpublic nature" about Chicago police officers; and "files generated by the investigation of complaints of misconduct by Chicago police officers" (what the City calls "Complaint Register files" or "CR files"), including information that could be used to identify the officers. In response to Bond's discovery requests, the City produced thousands of pages of documents; some of those documents were categorized as confidential under the protective order and therefore are subject to the nondisclosure requirement. None of the discovery was filed with the court.

The parties eventually settled Bond's claims, and in March 2007 they submitted an agreed order of dismissal to the district court. On March 23, 2007, the court signed and entered the order dismissing the case with prejudice. A week before, however, on March 15, 2007, Jamie Kalven, an independent journalist, filed a "Petition to Intervene and Motion to Unseal Public Documents Relating to Allegations of Police Misconduct." This phrasing was odd. The court had never been asked to seal any documents in the court record; as such, there were no "sealed public documents" to "unseal." It was clear from the petition, however, that Kalven sought modification of the protective order and access to certain categories of documents the City had produced during discovery. He later narrowed the list of documents he seeks, but all involve the police department's confidential records of citizen complaints filed against its officers. A docket entry recording the entry of the dismissal order noted that the case was dismissed with prejudice but also stated that "[t]he case remains open for the purpose of the Court retaining jurisdiction over the pending petition of Jamie Kalven to intervene and motion to unseal public documents relating to allegations of police misconduct."

The City did not oppose Kalven's intervention but strongly objected to his challenge to the protective order, arguing that "good cause" continued to support keeping the documents confidential. See FED R.CIV.P. 26(c)(1). Bond did not join Kalven's request to modify the protective order and made no substantive response to his petition. On July 2, 2007, the district court entered an order allowing Kalven to intervene and rescinding the protective order in its entirety. The court reevaluated whether "good cause" existed to keep the documents confidential, and in so doing applied a "presumption" of public access to discovery materials. The court further concluded that the public interest in information about police misconduct outweighed the interest of the City and its officers in keeping the records confidential. The district court did not affirmatively order that the documents be provided to Kalven; rather, the court lifted the protective order, thereby permitting either party to disclose the discovery documents.1 The City appealed the district court's order and moved for a stay pending appeal. A motions panel of this court granted that motion.

While the City's appeal was pending, 28 Chicago aldermen attempted to intervene in the district court to obtain access to the police department's confidential documents. The aldermen wanted the records to help them decide whether to adopt a proposal to separate the police department's oversight board from the police department itself. The district court concluded that it lacked jurisdiction because of the pending appeal, see Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58, 103 S.Ct. 400, 74 L.Ed.2d 225 (1982); United States v. McHugh, 528 F.3d 538, 540 (7th Cir.2008), and the aldermen appealed the district court's jurisdictional ruling. A motions panel dismissed that appeal but allowed the aldermen to intervene in this one. Thus, as this case comes to us, the aldermen and Kalven have identical positions; they defend the district court's decision to lift the protective order.2

II. Discussion

The Federal Rules of Civil Procedure broadly permit parties in litigation to obtain discovery "regarding any nonprivileged matter that is relevant to any party's claim or defense." FED.R.CIV.P. 26(b)(1). Given the "extensive intrusion into the affairs of both litigants and third parties" that is both permissible and common in...

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