Holmes v. Hernandez

• Decision Date: 21 November 2016
• Docket Number: No. 14 C 8536,14 C 8536
• Citation: 221 F.Supp.3d 1011
• Parties: Dorothy HOLMES, on her own behalf and as Special Administrator of the Estate of Ronald Johnson III, Plaintiff, v. George HERNANDEZ and the City of Chicago, Defendants.
• Court: U.S. District Court — Northern District of Illinois

221 F.Supp.3d 1011

Dorothy HOLMES, on her own behalf and as Special Administrator of the Estate of Ronald Johnson III, Plaintiff,

v.George HERNANDEZ and the City of Chicago, Defendants.

No. 14 C 8536

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

Signed November 21, 2016

Jon F. Erickson, Ronak P. Maisuria, Jon Robert Neuleib, Michael D. Oppenheimer, Erickson & Oppenheimer, Ltd., Jared Samuel Kosoglad, Jared S. Kosoglad P.C., Chicago, IL, for Plaintiff.

Steven Blair Borkan, Graham P. Miller, Krista Eleanore Stalf, Timothy P. Scahill, Whitney Newton Hutchinson, Borkan & Scahill, Ltd., Josh Michael Engquist, Christopher A. Wallace, Christopher A. Wallace, Bret Anthony Kabacinski, Caroline Jane Fronczak, Marion Claire Moore, Marshall Keith Martin, Raoul Vertick Mowatt, City of Chicago, Department of Law, Kevin R. Gallardo, Kevin R. Gallardo

, Jackson Lewis P.C., Barrett Elizabeth Boudreaux, Jonathan Clark Green, Chicago Corporation Counsel, Jason Fay Cunningham, Chicago, IL, for Defendants.

ORDER

Honorable Edmond E. Chang, United States District Judge

On October 12, 2014, Chicago Police Officer George Hernandez fatally shot Ronald Johnson III. R. 106, Third Am. Compl. ¶¶ 6, 8.¹ Johnson's mother, Dorothy Holmes, filed this lawsuit against the Chicago and Hernandez on her own behalf and as Special Administrator of her son's estate. The parties are in the midst (though toward the tail end) of fact discovery. See R. 189, 08/08/16 Minute Entry. Holmes has moved to compel the production of draft summary reports from the Independent Police Review Authority (IPRA), the agency currently responsible for investigating police misconduct in Chicago. See R. 175, Pl.'s Mot. to Compel. This Order solely addresses the deliberative process privilege² as it applies to the draft summary reports, and overrules the City's objection on this ground. But the parties and the Court are still assessing the extent to which compelling production of those reports would be unduly burdensome, which will be the subject of yet another round of discussion at the status hearing of November 22, 2016.

I. Background

In addition to the Fourth Amendment excessive force claim against Officer Hernandez, Holmes asserts a Monell claim against Chicago, alleging that Chicago's failure to investigate and to discipline police misconduct caused Hernandez's use of excessive force. See Third Am. Compl. Holmes also brings Illinois state-law claims against both Defendants. Id.

After some wheel-spinning in discovery on the Monell claim, in March 2016 the Court ordered Holmes to directly subpoena IPRA, the city agency currently in charge of investigating police misconduct in Chicago, for the investigation files of police shootings in the time period October 12, 2009 through October 12, 2014 (that is, for the five years leading up to Hernandez's shooting of Johnson). See R. 161 (motion hearing of 03/17/2016). In response to the subpoena, IPRA agreed to produce the investigation files for those shootings. See R. 179, IPRA Resp. Br. at 5. An investigation file contains the final summary report, which is "a compilation of the evidence the investigators believe—based on their internal deliberations—are most relevant to the issues raised in a particular investigation." R. 196, IPRA Supp. Resp. Br. at 2. But IPRA invoked the deliberative process privilege and refused to produce any draft summary reports generated during the investigations. See IPRA Resp. Br. at 4–9; IPRA Supp. Resp. Br. According to IPRA, its investigators and supervisors engage in a back-and-forth dialogue over these drafts in the lead-up to generating the final summary report. IPRA Resp. Br. at 4.) Holmes wants to see the draft summary reports.

II. Legal Standard

Federal Rule of Civil Procedure 26(b)(1) states that "[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit." A party claiming that otherwise discoverable information is privileged must "expressly make the claim," and "describe the nature of the documents, communications, or tangible things ... in a manner ... that will enable other parties to assess the claim." Fed. R. Civ. P. 26(b)(5)(A) ; see also Fed. R. Civ. P. 45(e)(2)(A). This means that the burden rests upon the party objecting to disclosure to show why the information is privileged. See Kodish v. Oakbrook Terrace Fire Prot. Dist. , 235 F.R.D. 447, 450 (N.D. Ill. 2006). Finally, district courts have broad discretion when ruling on discovery-related issues, including motions to compel brought under Rule 37(a). See Peals v. Terre Haute Police Dep't , 535 F.3d 621, 629 (7th Cir. 2008) ; see also Fed. R. Civ. P. 37(a).

III. Analysis

Holmes contends that the draft summary reports are relevant to her Monell claim, which alleges that IPRA engaged in a widespread practice of "refusing to find complaints with merit justified or recommend discipline even where the officer has engaged in excessive force ...." Third Am. Compl. ¶ 47; see also Pl.'s Mot. to Compel at 2. For its part, IPRA maintains that even if the draft summary reports are relevant, they are nevertheless protected by the deliberative process privilege. See IPRA Resp. Br. at 4–9; R. 196, IPRA Supp. Resp. Br.; R. 216, IPRA Second Supp. Resp. Br. at 2–3. Those drafts are "part of an internal dialogue" between investigators and supervisors that happens before IPRA issues a final summary report. IPRA Resp. Br. at 4. IPRA points out that it has agreed to produce "formal non-concurrence memorandums," and at one time IPRA said that it also would disclose "any draft summary report that is the only evidence of a non-concurrence in a closed investigation." IPRA Resp. Br. at 5. Those disclosures, in IPRA's view, undermine Holmes's need for all of the other draft summary reports. (" ‘Non-concurrence’ is the term IPRA uses when a member of the investigative staff does not agree with the findings that ultimately are conveyed in a final summary report." IPRA Supp. Resp. Br. at 2.) In addition to asserting the privilege, IPRA also argues that "[c]ollecting these draft summary reports, which may number close to or over a thousand," would be unduly burdensome. IPRA Resp. Br. at 9. To support these arguments, IPRA submitted a declaration signed by its General Counsel. See R. 179–1 at 6, O'Shaughnessy Decl.

The deliberative process privilege "serves to protect the quality of the flow of ideas within a government agency." United States v. Bd. of Educ. of the City of Chi. , 610 F.Supp. 695, 697 (N.D. Ill. 1985) ; accord United States v. Farley , 11 F.3d 1385, 1389 (7th Cir. 1993) ("Since frank discussion of legal and policy matters is essential to the decisionmaking process of a governmental agency, communications made prior to and as a part of an agency determination are protected from disclosure."). To this end, the privilege shields "communications that are part of the decision-making process of a governmental agency."³ Farley , 11 F.3d at 1389 (citing NLRB v. Sears, Roebuck & Co. , 421 U.S. 132, 150–52, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975)). These communications include "documents reflecting advisory opinions, recommendations[,] and deliberations comprising part of the process by which governmental decisions and policies are formulated." Dep't of Interior v. Klamath Water Users Protective Assoc. , 532 U.S. 1, 9, 121 S.Ct. 1060, 149 L.Ed.2d 87 (2001) (citing Sears, Roebuck & Co. , 421 U.S. at 150, 95 S.Ct. 1504 ).

In order for the privilege to apply, however, the documents must be both " ‘predecisional’—generated before the adoption of an agency policy—and ‘deliberative’—reflecting the give and take of the consultative process.'' Cont'l Ill. Nat'l Bank & Trust Co. of Chi. v. Indem. Ins. Co. of N. Am. , 1989 WL 135203, at *2 (N.D. Ill. Nov. 1, 1989) ; accord Becker v. IRS , 34 F.3d 398, 403 (7th Cir. 1994). This means that the privilege does not extend to "factual or objective material," or to documents that "an agency adopts ... as its position on an issue." Cont'l Ill. , 1989 WL 135203, at *2 ; accord Enviro Tech Int'l, Inc. v. U.S. E.P.A. , 371 F.3d 370, 374 (7th Cir. 2004). Neither does the privilege extend to "[c]ommunications made subsequent to an agency decision ...." Farley , 11 F.3d at 1389.

There is a two-step process for determining whether the privilege applies: first, the government must show that the privilege applies to the documents at issue. See Evans , 231 F.R.D. at 316 ; Ferrell v. U.S. Dep't of Hous. and Urban Dev. , 177 F.R.D. 425, 428 (N.D. Ill. 1998). If the government makes out a prima facie case for applying the privilege, then the burden shifts to the party seeking disclosure to establish "a ‘particularized need’ for the documents." Evans , 231 F.R.D. at 316 (quoting Farley , 11 F.3d at 1389 ; Ferrell , 177 F.R.D. at 429 ). The Court addresses each party's burden in turn.

A. IPRA's Prima Facie Case

IPRA must make a formal claim of the deliberative process privilege in order to keep the draft summary reports under wraps. See United States v. Reynolds , 345 U.S. 1, 7–8, 73 S.Ct. 528, 97 L.Ed. 727 (1953). To satisfy this burden, "three things must happen: (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." K.L. v. Edgar , 964 F.Supp. 1206, 1209 (N.D. Ill. 1997) ; accord Reynolds , 345 U.S. at 7–8, ...