Court Compels Search of Additional Custodians, Notes Defendant’s Failure to Provide “Even a Rough Estimate” of the Alleged Burden

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

Plaintiffs sued the City of Chicago and the Chicago police alleging that they had been wrongfully arrested, detained and prosecuted and that they were abused at “off the books” detention centers without access to counsel. Although the parties agreed on search terms and the majority of custodians, they “reached an impasse” as to which custodians in the Mayor’s Office should be searched, including the Mayor himself.  Because the court found the information sought would be relevant and because Defendant did not establish the alleged burden of the request—failing to provide even an estimate—the court granted in part Plaintiffs’ motion to compel, including their request to add the Mayor.  In so deciding, the court also noted several proportionality factors, including the importance of the issues at stake and the plaintiffs’ lack of access to the requested information.

In these consolidated cases, Plaintiffs sought to establish the City’s liability for their alleged wrongful detention at an undisclosed facilities and thus sought to include custodians from the Mayor’s Office in the search for responsive materials in the course of Monell discovery (related to establishing municipal liability). The City proposed to search the emails of the two members of the Mayor’s staff “responsible for liasoning” with the police department and to “leave ‘the door open’” for additional custodians, but otherwise resisted Plaintiffs’ request claiming undue burden and Plaintiffs’ failure to “provide any grounds to believe that the proposed custodians” were involved with the police department’s policies and practices.

Summarizing broadly, the court concluded that in addition to agreed-upon staff liaisons, the Mayor and his “upper level staff” may also have responsive information justifying a search of their email. Addressing the alleged burden of the search, the court reasoned that the City did not “offer any specifics or even a rough estimate about the burden” and was unconvinced by the City’s argument that “it is impossible to determine how many emails there may be ‘unless the City actually runs the searches and collects the material.’”  Rather, the court reasoned that the City should have provided “an estimate of the burden” and that “other Rule 26 factors—the importance of the issues and of the discovery in resolving the issues, and the parties’ relative access to information and their resources—weigh[ed] in favor of allowing discovery of more than just the two custodians proposed by the City.”  However, the court declined to compel the search of four proposed custodians based on their “short tenure” or the “time during which the person held the position,” concluding the requested searches were “not proportional to the needs of the case.”

A full copy of the court’s opinion and order is available here.