Court Rejects Discovery Burden to Allow Additional Custodians Search

Mann v. City of Chicago, Nos. 15 CV 9197, 13 CV 4531, 2017 WL 3970592 (N.D. Ill. Sept. 8, 2017).

In this consolidated wrongful detention case, the court granted the plaintiffs’ motion to compel in part, ordering the defendant to extend its email searches to seven additional custodians based on the proportionality factors of Federal Rule of Civil Procedure 26.

This order concerns two separate cases that the court consolidated for pretrial proceedings. Both cases allege that the Chicago Police Department and the City of Chicago (collectively “the City”) “wrongfully arrested, detained” and interrogated the plaintiffs at an “‘off the books’ detention center” known as Homan Square. Part of the plaintiffs’ claims center on “what level of command authorized and knew about the facility,” specifically the mayor’s office.

The court began by noting that it appreciated the parties’ efforts to “work[] jointly to conduct” discovery. Specifically, it commended their agreement on most of the custodians and search terms. However, the parties had “reached an impasse on which custodians in the mayor’s office” to search. The plaintiffs moved to compel the City to extend its search of emails to the mayor and 10 staff members. The City agreed only to search the emails of two staffers, liaisons between the mayor’s office and the police. The City argued both that the plaintiffs “failed to provide any grounds to believe that the proposed custodians were involved” with Homan Square and that the request was burdensome.

Under Federal Rule of Civil Procedure 26, the scope of discovery is limited by the principle of proportionality. Rule 26’s proportionality factors include “the importance of the issues at stake, … the parties’ relative access to relevant information … [and] the importance of the discovery in resolving the issues.”

Relevance, the court noted, is a “precondition” for all discovery. Accordingly, the court first examined the relevance of potential “communications within, from and to the mayor’s office” regarding the square. The court found that those communications would be “relevant to notice, ratification, cover-up and deliberate indifference,” at least “for purposes of discovery,” under the plaintiffs’ theory of liability.

Turning to the City’s argument that the plaintiffs failed to establish a “factual basis” for the additional custodians, the court found that this “impose[d] too high a burden” on the plaintiffs. At this early stage, the court held, the “plaintiffs do not have to provide evidence of the [m]ayor’s connection to Homan Square in order to get discovery potentially showing (or not)” that that connection existed. During discovery, “the court is only concerned with the propriety and scope of discovery” — not with the final disposition of the case.

The City also objected that it would be “burdened with the time and expense of searching the email boxes” of these additional custodians. However, it failed to “offer any specifics or even a rough estimate” describing that burden. The court noted that the City should have provided “a specific showing of burden.”

Considering proportionality factors under Rule 26, namely “the importance of the issues and of the discovery in resolving the issues, and the parties’ relative access to information and their resources,” the court held that discovery should extend to additional custodians in the mayor’s office.

But the court did not agree to add all the requested custodians. Therefore, the court granted the motion in part, ordering the City to include as custodians the two agreed staffers, the mayor, and four additional staff members. The court denied the motion as to four additional individuals who either had a “short tenure” with the mayor’s office or who were not there during a specific period. The court also denied the plaintiffs’ request for sanctions.

Takeaways on proportionality

If you must object that discovery is burdensome, explain that burden in as much detail as possible. The court here noted that without such details, proportionality objections may not be granted. In this case, the defendant could have shown burdensome discovery by providing “an estimate of the number of documents” that a search would return, “the number of hours of work by lawyers and paralegals” or the monetary expense of a search.

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