PITTSFIELD DEVELOPMENT, LLC, et al., Plaintiffs, v. CITY OF CHICAGO, Defendant 17 C 1951 United States District Court, N.D. Illinois, Eastern Division Filed: November 12, 2019 Counsel ORDER Kocoras, Charles P., United States District Judge ORDER *1 Before the Court is the Plaintiffs’ motion to compel. For the following reasons, the motion is granted in part and denied in part. STATEMENT The underlying facts in this case are detailed in our prior opinions.[1] As is relevant here, the Plaintiffs served several discovery requests upon Defendant City of Chicago (“the City”) on May 2, 2019. These requests included interrogatories from Plaintiffs Pittsfield Hotel Holdings, LLC (“Pittsfield Hotel”) and Pittsfield Development, LLC (“Pittsfield Development”) and a request for production of documents on behalf of all Plaintiffs. On May 10, 2019, the Plaintiffs served the Defendants with a deposition notice for Alderman Brendan Reilly (“Reilly”). The City's counsel asserted legislative privilege on Reilly's behalf, informing the Plaintiffs that Reilly would not appear for the scheduled deposition. On July 1, 2019, the City filed its responses to the discovery requests, asserting the same privilege as to several of the requests. The Plaintiffs bring the instant motion[2] to compel seeking answers to their interrogatories and requests for production of documents. Further, the Plaintiffs seek to compel Reilly's deposition. In response, the City claims that Reilly's legislative privilege bars these inquiries. To resolve the instant motion, the Court first considers the application of legislative privilege to this case and then determines its scope as it relates to each of the disputed discovery requests.[3] I. Application of Legislative Privilege Courts have recognized a “qualified legislative privilege to protect state lawmakers from producing documents related to their legislative activities.” Comm. for a Fair and Balanced Map v. Illinois State Bd. of Elections, 2011 WL 4837508, *7 (N.D. Ill. 2011) (“Balanced Map”). To determine whether a state lawmaker can invoke legislative privilege, courts weigh the following factors: (i) the relevance of the evidence sought to be protected; (ii) the availability of other evidence; (iii) the seriousness of the litigation and the issues involved; (iv) the role of the government in the litigation; and (v) the possibility of future timidity by government employees who will be forced to recognize that their secrets are violable. Id. In considering these factors, the Court balances the “need for disclosure and accurate fact finding” against the “legislature's need to act free of worry about inquiry into its deliberations.” Id. (internal quotation omitted). *2 With respect to the relevance of the evidence sought, this factor cuts both ways. As the Plaintiffs assert, “[t]he information sought goes to the heart of Plaintiffs’ case.” The Court agrees that the gravamen of the complaint concerns Reilly's allegedly corrupt motivations for introducing and enacting the Downsizing Ordinance. Yet, as the City correctly notes, Reilly's motivations, corrupt or otherwise, cannot be attributed to the City Council as a whole. Civil Liberties for Urban Believers v. City of Chicago, 342 F.3d 752, 764 (7th Cir. 2003). However telling they may be, the legal import of Reilly's motivations is questionable. Therefore, this factor neither favors nor disfavors disclosure. The second and fourth factors weigh in favor of disclosure. Regarding the second factor, there is little opportunity for the Plaintiffs to obtain evidence of Reilly's motivations for introducing and enacting the Downsizing Ordinance outside of depositions and interrogatories. All other evidence would likely be circumstantial. Similarly, the role of government in the litigation favors disclosure, as a government official is the alleged corrupt actor and the City is the sole defendant in the case. Therefore, the Plaintiffs have shown some need for overcoming the privilege. However, the third and fifth factors weigh against disclosure. Regarding the seriousness of the litigation, this District has previously expressed skepticism as to the significance of individual challenges to specific governmental actions. In Balanced Map where the court considered the legitimacy of the Illinois redistricting process, the Court stated, “This is not, then, the usual deliberative process case in which a private party challenges governmental action ... and the government tries to prevent its decision-making process from being swept up unnecessarily into the public domain.” Balanced Map, 2011 WL 4837508 at *8 (internal quotations omitted). Given that this litigation concerns the effect of a zoning ordinance to a specific building, the case falls into the tentative gravity category described in Balanced Map. Coupled with the recognized “need to encourage frank and honest discussion among lawmakers,” these considerations weigh against disclosure. Id. Collectively, these five factors are at best a wash, with each side expressing legitimate reasons for disclosure and non-disclosure. Therefore, on balance, the Court cannot conclude that the Plaintiffs may overcome the assertion of legislative privilege outright. Rather, we recognize that the privilege applies in this case, but we will determine its scope with respect to each disputed discovery item. II. Deposition of Reilly and Staff As previously noted, legislative privilege is a qualified privilege, not an absolute one. Id. at *7. Therefore, the Court finds that Reilly may be deposed subject to some limitations. This District has upheld an assertion of the legislative privilege as to the motives and objectives related to a legislative activity. Id. at *11; See also Joseph's House and Shelter, Inc. v. City of Troy, N.Y., 641 F. Supp. 2d. 154, 158 (N.D.N.Y. 2009) (“Local legislators are entitled to a legislative privilege protecting against questions regarding their subjective motivations, deliberations, and thought processes regarding their legislative function.”). Accordingly, the Plaintiffs may not question Reilly as to his motivations or objectives in introducing or enacting the Downzoning Ordinance. However, this District has also noted that legislative privilege “does not protect facts or information available to lawmakers at the time of their decision.” Balanced Map, 2011 WL 4837508 at *10. To the extent that the Plaintiffs wish to inquire on those matters, they may do so without being subject to an assertion of legislative privilege. III. Pittsfield Hotel Interrogatories *3 Based on the parties’ representations, five interrogatories are at issue. The Court will address each one in turn. Regarding Pittsfield Hotel interrogatories five and six, the Court finds that any such answers are protected by legislative privilege. These questions seek information as to Reilly's motivations for introducing the Downzoning Ordinance, which is a category of evidence subject to the privilege. Therefore, the Court sustains the City's assertion of legislative privilege as to questions five and six. Regarding question seven, the Court finds that legislative privilege does not apply. This question is not tied to an individual lawmaker's motivations for legislative activity. Rather, it seeks general information on the basis for the zoning change. Accordingly, the Court overrules the City's objection to question seven. Regarding question eight, the Court finds that legislative privilege does not apply. We interpret this question to inquire into the procedures that lead to the decision on the zoning change. The Plaintiffs are entitled to know of the necessary steps in the decision-making process. Thus, the Court overrules the City's objection to question eight. Finally, regarding question ten, the Court finds that legislative privilege does not apply. This question merely clarifies the scope of the Downzoning Ordinance, be it temporary or permanent. Such an inquiry is devoid of any privileged information, and the Court overrules the City's objection to question ten. IV. Requests for Production of Documents Based on the parties’ representations, three requests for production of documents are at issue. Regarding requests one and two, the Court finds that the information sought is not subject to legislative privilege. The privilege only applies to documents related to legislative activities. Id. at *7; See also Kukla v. Village of Antioch, 1987 WL 9596, *1–2 (N.D. Ill. 1987) (holding that village board could not assert legislative privilege when acting outside of its legislative capacity). Here, the Plaintiffs seek information related to an administrative activity, namely the issuance of a permit. Therefore, the Court overrules the City's objections to requests one and two. Regarding the third request at issue—request eighteen—the Plaintiffs seek, “Notes of all meetings from January 1, 2014 to the present attended by representatives of the City that in any way relate to the Building.” As written, this question is overly broad and unduly burdensome. Furthermore, responsive material could be subject to legislative privilege, such as any notes on Reilly's motivations for introducing the Downzoning Ordinance. While there would likely be responsive material not subject to legislative privilege, the universe of requested material is too broad and must be narrowed. Accordingly, the Court sustains the City's objection to this request. CONCLUSION For the aforementioned reasons, the Plaintiffs’ motion to compel discovery is granted in part and denied in part. The Defendants have thirty days from the issuance of this order to produce the requested discovery. It is so ordered. Footnotes [1] 1:17-cv-1951, Dkt. 20 & 54. [2] For future filings, the Plaintiffs are advised to comply with Local Rule of the United States District Court for the Northern District of Illinois 7.1. [3] The Plaintiffs’ amended motion to compel included additional interrogatories and requests for production of documents. However, after the parties’ second Rule 37(a) conference, they reached an agreement as to many of the items at issue. The only remaining disputes concerned the applicability of the legislative privilege with respect to Reilly's deposition, several interrogatories, and a few production requests. Therefore, this order is limited to those matters still in dispute.