ORDER
Now before the Court is the Plaintiffs Motion to Compel (#57). The motion is fully briefed, and I have carefully considered all of the submissions of the parties. For the following reasons, the Motion to Compel is GRANTED.
INTRODUCTION
In this case, Plaintiff alleges that the individual defendants were involved in the use of excessive force during a traffic stop. In addition to the individual liability of the police officers, Plaintiff has asserted a Monell claim against the City of Peoria.
The underlying events resulted in an internal investigation conducted by the Peoria Police Department. Plaintiff has sought to obtain the documents relating to that investigation. Defendants initially asserted a blanket “self-critical analysis privilege.” After months during which the parties attempted to resolve the dispute, Defendants produced a privilege log and asserted a second privilege, the “executive privilege.” In addition, Defendants have challenged the relevance of some of these documents.
PRIVILEGE GENERALLY
The Federal Rules of Civil Procedure provide that parties “may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense.” Fed.R.Civ.P. 26(b)(1). A party declining to produce discovery on the grounds that it is privileged has the burden of establishing the existence of the privilege as well as its applicability in the particular situation. Bank of America v. Veluchamy,
Privileges are construed narrowly and the requirements for establishing privilege are strictly enforced, because privileges are viewed as being in derogation of the search for truth., University of Pennsylvania v. EEOC,
In federal question cases, such as the one now before this Court, privilege is “governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience.” Fed.R.Evid. 501. In federal question cases, the general rule is that only federal privileges are applicable; state law privileges are not incorporated into federal common law. EEOC v. Illinois Dept., of Employment Sec.,
The Federal Rules also address the manner in which privilege is to be asserted. A party withholding discoverable information on the ground of privilege must “(i) expressly make the claim; and (ii) describe the nature of the documents ... not produced or disclosed — and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.” Fed.R.Civ.P. 26(b)(5)(A).
SELF-CRITICAL ANALYSIS PRIVILEGE
More than 15 years ago, the Seventh Circuit noted the “prevailing view” that self-critical portions of affirmative action plans are privileged, noting that the “bounds of the privilege depend on the extent to which the policy of equal opportunity in employment will best be served in the particular circumstances presented by each case.” Coates v. Johnson & Johnson,
Other than these two cases, the Seventh Circuit has not spoken to the self-critical analysis privilege. Hence, this Court must evaluate this privilege under the general principles discussed in the preceding section, beginning with the question whether the privilege exists at federal common law. As the Memorial Hospital Court explained, that examination should be guided by two basic concepts:
First, because evidentiary privileges operate to exclude relevant evidence and thereby block the judicial fact-finding function, they are not favored and, where recognized, must be narrowly construed. Second, in deciding whether the privilege asserted should be recognized, it is important to take into account the particular factual circumstances of the ease in which the issue arises. The court should “weigh the need for truth against the importance of the relationship or policy sought to be furthered by the privilege, and the likelihood that recognition of the privilege will in fact protect that relationship in the factual setting of the ease.”
Memorial Hospital,
The City cites three cases for the proposition that the privilege is recognized in this Circuit. Those three cases are: Morgan v. Union Pacific R. Co.,
In Morgan v. Union Pacific R. Co.,
The other case cited by the City is Robbins v. Provena St. Joseph Medical Center, Case 03C1371,
The same is true of the third case, Tice v. American Airlines Inc.,
Each of these cases, simply presumed the existence of the privilege without deciding that issue. They do not stand for the proposition that the privilege exists.
In the most recent ease within the Seventh Circuit, Ludwig v. Pilkington North America, Inc., Case No. 03C1086,
The general hesitation of the courts to fully embrace this privilege is quite understandable since its application will lead to the exclusion of extremely relevant and persuasive evidence. In theory, this exclusion is justified by the advancement to the public’s interest in having companies investigate and ultimately cure problems with their products or processes. While the courts’ general hesitance has caused some frustration for supporters of this privilege, ... it is, in my opinion, necessary to ensure that it is the public’s interest, and not the asserting party’s interest, that is served when relevant evidence is withheld pursuant to this privilege.
As was true not only in the three cases cited by the City but also in the majority of eases (both in and out of the Seventh Circuit) discussing this privilege, the Ludwig court found it unnecessary to decide whether the privilege is recognized in federal common law, because to the extent it may exist, it did not apply to the documents in question.
There can be no doubt that this privilege exists; that was, after all, what the
The fundamental purpose of the privilege is to protect from disclosure documents that contain “candid and potentially damaging self-criticism” Morgan,
For example, in the employment context, courts have extended the privilege to protect documents created by private employers legally mandated to critically evaluate their hiring and personnel polices. This need to satisfy a legal mandate was the foundation of the Coates decision, where an affirmative action plan mandated periodic internal reviews and revisions of hiring and personnel assignments. Coates,
The privilege has not, however, been limited to legally-mandated documents. In Morgan, the Court differentiated the legal standard used in employment cases, where statutes required employers to evaluate their practices, from the standard that made sense in tort cases. The public interest in tort cases — promotion of public safety through voluntary and honest self analysis— did not require a special governmental mandate. The Morgan Court concluded that the public’s substantial interest in encouraging railroads (such as the defendant in that case) to engage in critical self-evaluation to promote public safety meant that there was no requirement that the privilege only protected documents that were governmentally mandated.
Coates, Morgan, and other cases emphasize that factual context is critical in determining the proper legal standard. None of the cases discussed above involve police department documents, so they are not particularly helpful in determining the proper standard to apply in this case. Defendant has pointed to two cases that do involve police department documents. These two cases therefore merit careful attention.
In the first case, Hobley v. Burge, Case No. 03C3678,
[The privilege] was initially developed to promote public safety by encouraging businesses to evaluate their safety procedures voluntarily. It was subsequently extended to protect business entities that are legally mandated to undertake critical evaluation of their hiring and personnel policies. However, a governmental entity undertaking at taxpayer expense an audit of its performance of its public duties is arguably very different.
Id. at *3 [citations omitted].
Despite the Hobley court’s hesitation to apply the privilege to government docu
The Hobley court found the first two elements satisfied but concluded that the City had failed to show the third element, namely that the type of self-critical analysis at issue in an audit would be curtailed if the report were made public. Quoting a New York ease, the court stated, “The police department needs to continue to monitor itself to ensure that department procedures are effective and that officers are complying with these procedures. It is unlikely that production of the [report] would halt this self analysis process.” Id., quoting Skibo v. City of New York,
The second police document case is Gardner v. Johnson,
Applying this legal test to the ease before this Court, I find the following. First, the information contained in the investigation report resulted from critical self-analysis. Second, the public has a strong interest in preserving the free flow of this type of information, because it is clearly in the public’s interest to be certain that tax-supported police departments and police officers are operating within constitutional, statutory and procedural guidelines. There has been no suggestion by either party that this investigation report has been disclosed to any person or entity outside the department.
The only real issue is the third prong: whether preparation of this type of investigation report would be less likely if the City’s police department knew that it would be discoverable in civil litigation. Defendant cites and quotes from any number of cases for the proposition that these documents should be privileged, but those cases are all factually distinguishable from the case at bar. For example, in Kott v. Perini,
The other cases on which Defendant relies are similarly factually distinguishable. Medical records and post-accident reports in the private sector are simply not comparable to reports generated by police departments. The constitution and the laws impose on our police officers and police departments certain standards which citizens are entitled to expect they will uphold. When they are accused of falling short, as they are in the case before this court, the public has an extremely strong interest in assuring that the accusations are properly addressed and investigated. Given the political pressures that can be exerted on governmental entities, it is doubt
The self-critical analysis privilege has been found not applicable to the records of internal affairs investigations in civil rights suits against police officers, although the parties have cited and the court has located no such case from a court within the Seventh Circuit. See, e.g., Soto v. City of Concord,
In Soto, the Court declined to recognize the self-critical analysis privilege, opting to evaluate the documents under the “official information privilege.” In that analysis, however, the court rejected the police department’s assertion that disclosure of citizen complaints would discourage citizens from filing such complaints, because there was no proof of special circumstances that would credit the department’s “purported interest in preserving the anonymity of citizen complainants.” Id. at 621. The court similarly rejected the assertion that the department’s internal investigatory system would be harmed by disclosure of citizen complaints, finding that such a “general assertion” was insufficient to support the clam of privilege.
In Kelly, the court noted the “profound” importance of the civil rights statutes and cautioned that courts should not use “empirically unsupported and debatable assumptions” to shift the burden from the police department asserting the privilege to the civil rights plaintiff. The court carefully examined and rejected the broad contention that the possibility of disclosure might make the officers who participate less honest or candid.
No legitimate purpose is served by conducting the investigations under a veil of near total secrecy. Rather, knowledge that a limited number of persons, as well as a state or federal court may examine the file in the event of civil litigation may serve to insure that these investigations are carried out in an evenhanded fashion, that the statements are carefully and accurately taken, and that the true facts come to light, whether they reflect favorably on the individual police officers involved or on the department as a whole.
Id. at 665, quoting Mercy v. Suffolk County,
In King, the court described the threshold showing a police department must make to justify non-disclosure on the basis of the official information privilege.
“Unless the government, through competent declarations, shows the court what interests [of law enforcement or privacy] would be harmed, how disclosure under a protective order would cause the harm, and how much harm there would be, the court cannot conduct a meaningful balancing analysis.”
Id. at 189, quoting Kelly,
While the cases discussing the “official information” privilege are not directly apposite to the “self critical analysis” privilege at issue in this case, those cases do reveal some of the same concerns that would arise should either privilege be applied to police department documents. Here, the City has asserted the privilege without the support of any empirical evidence. The articulate discussion in Kelly and Mercy, supra, convinces me that the public interest asserted by the Defendants does not in this case outweigh the Plaintiffs search for the truth in this civil rights case.
Similarly, in Wiggins v. Burge,
Privileges are narrowly construed, and the party asserting the privilege must meet its burden of showing entitlement to protections. Defendants have failed to meet its burden of establishing the third prong of the legal standard. That finding makes it unnecessary to address in any detail Plaintiffs wholly-unsupported suggestion that De-' fendants waived this privilege by failing to invoke it consistently. Specifically, Plaintiff points out that seven other investigation files have been produced without any assertion of privilege. Defendants respond that these 7 files were “old records containing nothing of consequence.” More importantly, however, Defendant points out that assertion of privilege is on a document-by-document basis and that production of one document does not, standing alone, constitute waiver. I conclude that production of these files did not constitute waiver as to the particular investigation file at issue, especially in light of Plaintiffs cursory presentation of this issue.
For the reasons explained herein, I find that the documents in question are not protected by the critical self-analysis privilege. To that extent the motion to compel is GRANTED.
EXECUTIVE PRIVILEGE
[15,16] Defendants also asserted “executive privilege” as to the investigative report. The executive privilege
In none of the above cited cases was the governmental entity asserting the privilege a local government; all were either federal agencies or state-created agencies or entities. There are a few cases involving local government. For example, in Griffin v. City of Milwaukee,
Defendants also cite Elliott v. Webb,
The Elliott Court made no effort to examine whether the officers’ personnel files reflected advisory opinions, recommendations and deliberations comprising part of the process by which governmental decisions and policies were formulated. The Court’s broad definition of the privilege made that examination unnecessary. The Court’s broad definition, however, is inconsistent with binding precedent cited above, and I find the opinion to be of no assistance in the case at bar.
Applying the definition that is binding in this Court, I find that the type of investigation report that was prepared in this case does not fall within the parameters of the privilege. For this privilege to apply, the document must be “deliberative.” Becker v. IRS,
The conclusion that the report is not privileged is demonstrated by considering the careful evaluation in Evans, supra. That case involved a former inmate who had been pardoned by the governor. He sued police officers, alleging a conspiracy to frame him for a murder he did not commit. He sought discovery from the Illinois Prisoner Review Board, asking for the information the Board had provided to the governor. The Board asserted the executive privilege.
The Court enunciated a two-step analysis for determining whether the privilege should be applied to prevent discovery of otherwise relevant information. First, the court must decide whether the government has shown that the privilege applies to the documents the government seeks to protect. This requires the government to show that (1) the claim of privilege was formally asserted by the agency head, one of its high officers, or its counsel, (2) there are “precise and certain reasons” for preserving the confidentiality of the documents, and (3) the documents are specifically identified and described. Id. citing U.S. v. Reynolds,
In the case now before this Court, Defendants prepared privilege log asserts the executive privilege, and it lists with specificity the documents being withheld. The log is entirely lacking in “precise and certain reasons” that the privilege should apply to each document, and the arguments made by Defendants similarly lack the requisite precision. It is therefore impossible to conclude that Defendants have met their initial burden of properly asserting this privilege.
Either because the privilege does not, by definition, apply to the type of investigative report at issue here, or because the Defendants have failed to meet their burden of showing that there are precise reasons that
RELEVANCE
Defendants also assert that certain parts of the investigative report are not relevant. The Federal Rules of Evidence define “relevant evidence” as being “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Fed. R.Evid. 401. The Federal Rules of Civil Procedure allow discovery of “any nonprivileged matter that is relevant to any party’s claim or defense.” Fed.R.Civ.P. 26(b)(1).
Neither the motion to compel nor the response identifies with specificity any document that is or is not relevant, much less makes specific arguments as to those particular documents. Defendants assert that the “Professional Standards Files” regarding other investigations involving these officers are not relevant, while the Plaintiff asserts that communications between the City and the individual Defendants regarding the investigation are relevant. Each side dedicates one paragraph only to its relevance argument.
The relevance issue is completely undeveloped and is therefore not considered by the Court. Given the very broad definition of “relevance,” and the rulings as to privilege contained in this order, the parties are directed to re-evaluate their positions on this question and make every good faith effort to resolve, on a document-by-document basis, any remaining issues of relevance.
CONCLUSION
The motion to compel is granted as stated herein. I find, however, that the internal investigation report should be subject to a protective order that strictly limits the use to which these documents may be put and the persons to whom these documents may be shown, at least during discovery. The parties are directed to draft a protective order specific to this report that contains appropriate limitations on the use and disclosure of this information, keeping in mind Local Rules and case law relating to privacy and sealed documents. A proposed protective order shall be filed for approval within 14 days of this date. Once the protective order has been entered, Defendants shall have 14 days within which to serve the documents discussed herein.
Notes
. The "executive privilege” is sometimes referred to as the "official information privilege” or the “deliberative process privilege.” See, e.g., K.L. v. Edgar,
. The Illinois Supreme Court has refused to recognize this privilege. Evans v. City of Chicago,