CHARLES PALMER, Plaintiff, v. CITY OF DECATUR, et al., Defendants Case No. 17-CV-3268 United States District Court, C.D. Illinois July 22, 2019 Counsel Cindy Tsai, Rachel Elaine Brady, Jonathan I. Loevy, Steven Edwards Art, Imani Renee Franklin, Loevy & Loevy, Chicago, IL, for Plaintiff. Thomas G. DiCianni, Ancel Glink Diamond Bush Dicianni & Krafthefer PC, Kathleen Margaret Kunkle, Ancel Glink PC, Chicago, IL, John T. Robinson, Kathleen Wrigley Pletsch, City of Decatur, Decatur, IL, for Defendants. Bruce, Colin S., United States District Judge ORDER *1 Plaintiff, Charles Palmer, has appealed Magistrate Judge Eric I. Long's Orders (#51), (#75) denying his Motion to Compel (#33) and Motion to Reconsider Opinion Regarding Law Enforcement Investigatory Privilege (#63). The appeal is now fully briefed. For the following reasons, Judge Long's Orders (#51), (#75) are AFFIRMED. BACKGROUND The following background is taken from Judge Long's Order (#75), which the court has determined to be a fair and accurate recitation of the facts surrounding this appeal. In 1998, Plaintiff was arrested for the murder of William Helmbacher. Following an investigation, Plaintiff was prosecuted, tried, convicted, and served 18 years in prison for the murder. In 2016, after the State confessed error as to Plaintiff's post-conviction petition for relief, the charges against Plaintiff were dismissed and he was released from prison. On November 20, 2017, Plaintiff filed this civil rights Complaint (#1), alleging violations of his constitutional rights connected to the 1998 murder investigation, prosecution, and conviction. Plaintiff's Complaint alleges violations of his due process rights, conspiracy, and various other federal and state law claims. Plaintiff represents that he served his first set of written discovery on Defendants on March 6, 2018. The parties agree that as part of his document production requests, Plaintiff sought documents pertaining to the investigation of other individuals identified as alternative suspects in the Helmbacher murder. Additionally, Plaintiff sought “all” documents relating to the Helmbacher murder investigation, including any and all documents relating to any investigation into the Helmbacher murder that has taken place since 2010. It is this latter request, for documents relating to any investigation since 2010, that forms the basis for the instant dispute. In response to this request, Defendants objected to producing the documents based on the law enforcement investigatory privilege. On October 15, 2018, Plaintiff filed a Motion to Compel (#33) seeking to compel responses to the discovery outlined above. Defendants filed a Response (#35) on October 29, 2018. On January 17, 2019, during a status conference, Judge Long ordered Defendants to produce the disputed documents that they claimed were subject to the law enforcement investigatory privilege for in camera review. On January 29, 2019, following the court's in camera review, the court issued an Order (#51), granting in part and denying in part Plaintiff's Motion to Compel. With respect to the law enforcement investigatory privilege, the court noted that Defendants only objected to producing information relating to a pending investigation. Specifically, the court noted that Document Production Request No. 34 stated: 34. All Documents relating to any investigation that has taken place since 2010, to determine the cause or circumstances of the death of Helmbacher Death Investigation (sic) or the person or persons responsible for his death. Judge Long found that these documents “may have some marginal relevance,” and thus overruled Defendants' relevance objection to producing the documents. *2 The court expressly rejected any argument that the law enforcement investigatory privilege had been waived. The court went on to note that, having reviewed the documents in camera, the law enforcement investigatory privilege had been properly asserted. The court further stated that “protecting the documents before the Court is necessary to safeguard the privacy of individuals involved in the investigation, including those who may have been incorrectly suspected in the crime, and to prevent interference with the investigation.” Finally, the court noted that Defendants were required to create and turn over a privilege log of the information kept from Plaintiff. On March 1, 2019, Defendants produced the privilege log in compliance with the court's Order. On March 8, 2019, Plaintiff filed his Motion to Reconsider (#64). The basis for Plaintiff's Motion was two-fold. First, Plaintiff asserted that the privilege log “shows the information [Defendants] are withholding was already produced by Plaintiff.” Additionally, Plaintiff asserted that “developments in discovery have underscored the probative value of [Defendants'] ongoing investigation, and undermine Defendants' assertion that there is any need for secrecy.” On March 22, 2019, Defendants filed their Response (#71), opposing the Motion to Reconsider. In their Response, Defendants argued that the court's original ruling was correct and, more importantly, Plaintiff's Motion to Reconsider was procedurally improper as it presented no valid reason for the court to reconsider its original ruling. On April 16, 2019, Judge Long entered his Order (#75) denying Plaintiff's reconsideration motion. The court noted that Plaintiff did not argue that there was any manifest error of law or fact in the court's original January 29, 2019, Order, nor did Plaintiff show a controlling or significant change in the law. The court also noted that Plaintiff offered no explanation for why Defendants should have to produce documents that had already been given to Plaintiff by another source, the Macon County State's Attorney's Office. The court then rejected Plaintiff's argument that the law enforcement investigatory privilege should be overruled for all documents going forward as nothing more than Plaintiff rearguing his position that the entire investigatory file should be open and discoverable to Plaintiff. The court noted this argument was already considered and rejected in the court's previous order. The court then found that all of the Plaintiff's remaining arguments were an attempt to relitigate the arguments presented in the initial motion to compel, which is improper for a motion to reconsider. ANALYSIS Which Order Is Being Appealed? As a preliminary matter, the court must determine whether the original January 29, 2019 Order (#51) on Plaintiff's Motion to Compel, the April 16, 2019 Order (#75) on the Motion to Reconsider, or both are properly on appeal before this court. Plaintiff argues that both orders are properly on appeal for this court to review, while Defendants argue that only the magistrate judge's order on the motion to reconsider has been properly appealed. On April 26, 2019, Plaintiff filed a Motion for Extension of Time to File Objection to Opinion on Motion to Compel (#77), seeking an extension to appeal both the original order on the Motion to Compel and the order on the Motion to Reconsider. In a filing (#82) on May 7, 2019, Defendants indicated they had no opposition to the motion. The court granted the motion that same day. Therefore, the court will consider both the Motion to Compel and Motion to Reconsider properly under review. Standard of Review “The district court's review of any discovery-related decisions made by the magistrate judge is governed by Rule 72(a) of the Federal Rules of Civil Procedure, which provides: ‘The district judge to whom the case is assigned shall consider such objections and shall modify or set aside any portion of the magistrate judge's order found to be clearly erroneous or contrary to law.’ Fed.R.Civ.P. 72(a); see also 28 U.S.C. § 636(b)(1).” Weeks v. Samsung Heavy Industries Co., Ltd., 126 F.3d 926, 943 (7th Cir. 1997). Thus, “[t]he clear error standard means that the district court can overturn the magistrate judge's ruling only if the district court is left with the definite and firm conviction that a mistake has been made.” Weeks, 126 F.3d at 943. “This is an extremely deferential standard and the district court may not reverse the magistrate judge's decision simply because the district court judge would have come to a different conclusion.” McGuire v. Carrier Corp., 2010 WL 231099, at *1 (S.D. Ind. Jan. 13, 2010), citing Pinkston v. Madry, 440 F.3d 879, 888 (7th Cir. 2006). “Ordinarily, under clearly erroneous review, if there are two permissible views, the reviewing court should not overturn the decision solely because it would have chosen the other view.” Westefer v. Snyder, 472 F. Supp. 2d 1034, 1037 (S.D. Ill. 2006). Motion to Compel *3 On appeal, Plaintiff argues that: (1) Defendants failed to offer any basis for their assertion of the law enforcement privilege; and (2) Plaintiff's need for information about the post-2010 investigation outweighs any supposed risk from disclosure, because (a) evidence of the recent investigation is highly probative and (b) Defendants' interest in withholding the information is minimal. The law enforcement investigatory privilege is a qualified common law privilege protecting civil as well as criminal law enforcement investigatory files from civil discovery. Anderson v. Marion County Sheriff's Department, 220 F.R.D. 555, 563 (S.D. Ind. 2004). The purpose of the privilege is to prevent disclosure of law enforcement techniques and procedures, to preserve the confidentiality of sources, to protect witnesses and law enforcement personnel, to safeguard the privacy of individuals involved in an investigation, and otherwise prevent interference in an investigation. Anderson, 220 F.R.D. at 563. The law enforcement investigatory privilege is not absolute, however, and can be overridden in appropriate cases by the need for the privileged materials. Dellwood Farms, Inc. v. Cargill, Inc., 128 F.3d 1122, 1125 (7th Cir. 1997). “The balancing of that need—the need of the litigant who is seeking privileged investigative materials—against the harm to the government if the privilege is lifted is a particularistic and judgmental task[,]” and “is therefore confided to the discretion of the district judge, meaning that appellate review is deferential.” Dellwood Farms, 128 F.3d at 1125. Thus, there is a “pretty strong presumption against lifting the privilege.” Dellwood Farms, 128 F.3d at 1125. Plaintiff first argues that Defendants failed to offer “any basis” for their assertion of the law enforcement investigatory privilege in response to Plaintiff's document requests, in that they produced no affidavit in connection with their responses to the document requests and provided only conclusory assertions that there was a “distinct risk that the release of any documents can disrupt the investigation' without elaboration or affidavit.” Defendants respond that Plaintiff's affidavit argument is both waived and legally incorrect. The court finds that, even if the argument was not waived, there is no requirement that Defendants provide an affidavit in support of their assertion of the privilege. Plaintiff cites to no statute or regulation requiring an affidavit be provided to support the law enforcement investigatory privilege. In Munive v. Town of Cicero, 2013 WL 1286664 (N.D. Ill. Mar. 28, 2013), a case cited by Plaintiff, nowhere does the court say that an affidavit is required. Rather, the court notes that “[t]o assert the law enforcement privilege, a ‘responsible official in the department must lodge a formal claim of privilege, after actual personal consideration, specifying with particularity the information for which protection is sought, and explain why the information falls within the scope of the privilege.’ ” Munive, 2013 WL 1286664, at *2, quoting Hallett v. Village of Richmond, 2006 WL 2088214, at *2 (N.D. Ill. July 25, 2006). While the defendants in Hallett did submit an affidavit in support of their assertion of the privilege, nowhere in that opinion did the court hold such an affidavit was a requirement. Indeed, the court found the affidavit submitted to be insufficient to assert the privilege because it was not specific enough. See Munive, 2013 WL 1286664, at *2-3. *4 The court agrees with Defendants that it was not a mistake for Judge Long to conclude there was a sufficient basis to assert the privilege, even without an affidavit. Both parties thoroughly briefed the issue. Defendants stated that there was an active investigation into the Helmbacher homicide, even though the investigation had gone dormant and there were no leads. As noted in Judge Long's Order (#51) at pages 26-27, all of the documents at issue “were submitted to the Court for ex parte review[.]” Judge Long did not just rely on the assertions of Defendants, but thoroughly reviewed each document himself before rendering his decision. The court finds that there was a basis for asserting the privilege. Next, Plaintiff argues that his need for information about the post-2010 investigation outweighs any supposed risk of disclosure because (1) evidence of the recent investigation is highly probative and (2) Defendants' interest in withholding the information is minimal. Defendants argue that Judge Long's ruling on the investigatory privilege should be upheld because it was not clearly erroneous. In analyzing an investigatory privilege claim, the court, keeping in mind that there is a strong presumption that the privilege applies, balances the need of the litigant seeking the privileged materials against the harm to the government if the privilege is lifted. See Dellwood Farms, 128 F.3d at 1125. Here, Judge Long, having examined all of the materials Defendants claimed were covered by the privilege, concluded that the law enforcement investigatory privilege was properly asserted. In particular, Judge Long noted that protecting the documents before the court was necessary to safeguard the privacy of individuals involved in the investigation, including those who may have been incorrectly suspected in the crime, and to prevent interference with the investigation. Judge Long also ordered Defendants to produce a privilege log to Plaintiff in accordance with Rule 26(b)(5)(A). The court finds that Judge Long's ruling applied the correct legal standard and was not “clearly erroneous.” The court agrees with Judge Long that there is a real possibility of harm in disclosing the privileged material, in that there is a strong need to safeguard the privacy of individuals involved in the investigation, particularly those who may have been incorrectly suspected in the crime. Further, the possibility that the investigation could be interfered with due to the disclosure of the material is a real one that should be taken seriously. While Plaintiff does make a case that he needs the material to demonstrate his actual innocence, the court cannot say that Judge Long was clearly wrong or mistaken in determining that Plaintiff's need was not enough to overcome the “strong presumption” that the privilege applies. It should further be noted that, in Plaintiff's Appeal (#79), at page 4, Plaintiff stated “Defendants produced a privilege log that shows the information they are withholding was already produced to [Plaintiff] by the Macon County State's Attorney's Office in response to his subpoena.” Defendants argue that this, effectively, moots Plaintiff's motion to compel because “a party need not produce documents already obtained by the opposing party from a third-party, as any motion to compel production of such documents is rendered moot.” Plaintiff responds in his Reply (#88) that “[m]ootness' is not a recognized basis for withholding or failing to produce documents under the Federal Rules, and Defendants do not cite any rule or authority to the contrary.” Plaintiff also claims that Defendants possess “documents responsive to Plaintiff's discovery requests that they have not turned over and that the State's Attorney has not produced[,]” seemingly contradicting his statement in the Appeal that the privileged information had already been turned over to Plaintiff by the State's Attorney. *5 The court agrees with Defendants that Plaintiff's argument is unavailing, and made without support in the rules or case law. Regardless of whether Plaintiff's admission to already possessing the privileged material via the State's Attorney (if the assertion in Plaintiff's Appeal is credited, as opposed to the Reply) moots the Motion to Compel, it certainly weakens Plaintiff's argument that the court should compel Defendants to produce documents they claim are privileged, but that have already come into Plaintiff's possession via another source. Judge Long's Order finding the law enforcement investigatory privilege applies is affirmed. The court also affirms Judge Long's Order (#75) denying Plaintiff's Motion to Reconsider (#63). Judge Long articulated the proper standard governing motions to reconsider, in that “[a] motion for reconsideration is only appropriate to correct manifest errors of law or fact or to present newly discovered evidence[,]” because “[r]econsideration is not an appropriate forum for rehashing previously rejected arguments or arguing matters that could have been heard during the pendency of the previous motion.” Williams v. Edgeton, 53 F.3d 334, 1995 WL 242337, at *2 (7th Cir. Apr. 26, 1995), citing Rothwell Cotton Co. v. Rosenthal & Co., 827 F.2d 246, 251 (7th Cir. 1987), and In re Oil Spill, 794 F.Supp. 261, 267 (N.D. Ill. 1992). Plaintiff, in his Appeal, confined his arguments to the propriety of Judge Long's ruling from the original Order (#51) on Plaintiff's Motion to Compel, and did not specifically address the rulings made by Judge Long in the Order (#75) on the Motion to Reconsider (#63). As discussed above, the court has affirmed Judge Long in that regard. In any event, the court affirms Judge Long's ruling on the Motion to Reconsider in full for the reasons stated in that ruling. IT IS THEREFORE ORDERED: (1) Judge Long's Orders (#51), (#75) are AFFIRMED. (2) This case is referred to Judge Long for further proceedings in accordance with this order. ENTERED this 22nd day of July, 2019