The opinion
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
MARTHA LARA, on behalf of her )
minor daughter, M.G., ) No. 23 CV 3191
)
Plaintiff, )
)
v. ) Magistrate Judge Young B. Kim
)
)
KIMBERLY GEORGE, et al., )
) March 14, 2024
Defendants. )
MEMORANDUM OPINION and ORDER
Plaintiff brings state and federal claims against school administrators
Kimberly George, Amy Olivia, Kanisha Pettis (collectively, the “Individual
Defendants”) and the Waukegan Community Unit School District No. 60 Board of
Education (the “Board”) arising out of a physical altercation between her minor
daughter M.G. and the Individual Defendants on September 28, 2022, at Waukegan
High School. Before the court is the non-party City of Waukegan’s (the “City”)
motion to quash a subpoena for documents Defendants served on the Waukegan
Police Department (“WPD”). The City argues that complying with the subpoena
would subject it to criminal and civil liability. For the following reasons, the motion
is denied:
Background
Plaintiff filed this lawsuit on behalf of her daughter M.G. in May 2023,
alleging that the Individual Defendants engaged in the use of excessive force, civil
conspiracy, battery, and unlawful restraint and violated state law, and that the
Board failed to intervene after Defendant George allegedly battered M.G. at school
on September 28, 2022. (R. 1, Compl.) In December 2023, Defendants served a
subpoena on WPD seeking: “[a]ny and all reports, documents, records and materials
in the possession of [WPD] related to an incident that occurred on 9/28/22 at
Waukegan High School . . . involving student [M.G.] . . . and . . . [Defendant]
George.” (R. 17, City’s Mot., Ex. A.)1 Defendants believe that the City has
documents reflecting M.G.’s and Plaintiff’s statements regarding the subject
altercation. (R. 23, Defs.’ Resp. at 3.) The City now moves to quash the subpoena.2
Analysis
Federal Rule of Civil Procedure 45(d)(3)(A) provides that the court must
quash or modify a subpoena if it “requires disclosure of privileged or other protected
matter, if no exception or waiver applies.” The party seeking to quash a subpoena
has the burden to demonstrate that the information sought is privileged. See
Hodgdon v. Northwestern Univ., 245 F.R.D. 337, 341 (N.D. Ill. 2007). The City
argues it should be excused from complying with the subpoena because the
responsive records are privileged under: (1) the Illinois Abused and Neglected Child
Reporting Act (“ANCRA”), 325 ILCS 5/1; and (2) the Illinois Juvenile Court Act
1 The City attached a copy of the subject subpoena and redacted the student’s
name. (R. 17, City’s Mot. Ex. 1 at 4.) Given the circumstances of this case and the
date used in the subpoena, the court presumes that the student’s name on the
subpoena is M.G.
2 Plaintiff did not file her own motion to quash the subpoena or any response in
support of the City’s motion.
(“JCA”), 750 ILCS 405/1-1. (R. 17, City’s Mot. at 1.) Defendants disagree and assert
that the discovery they seek―statements M.G. or Plaintiff made to WPD regarding
the subject altercation―is “highly relevant” to the claims and defenses in this case.
(R. 23, Defs.’ Resp. at 3-4.) Defendants ask the court to review any responsive
records applicable under ANCRA in camera to determine if such records may be
produced, (id. at 4), and to assess whether the responsive records constitute
“juvenile law enforcement records,” and if so, to allow them to move the Illinois
Juvenile Court for an order requiring disclosure of the records, (id. at 5-6).
While federal courts look to state law to resolve privilege issues in diversity
cases in which state law supplies the rule of decision, Fed. R. Civ. P. 501; Dunn v.
Wash. Cnty. Hosp., 429 F.3d 689, 693 (7th Cir. 2005), here, Plaintiff alleges that the
Individual Defendants violated her daughter’s Fourteenth Amendment rights, along
with additional claims under federal and state law. (R. 1, Compl. at 9-13) As such,
the court has subject matter jurisdiction over the federal claims under 28 U.S.C.
§ 1331, and because they are the principle claims in this case, the court has
discretion whether to apply state law privileges to the subpoena served on WPD.
Landon ex rel. Munici v. Oswego Unit Sch. Dist. #308, No. 00 CV 1803, 2000 WL
33172933, at *2 (N.D. Ill. Feb. 13, 2000); Fed. R. Civ. P. 501 (“The common law—as
interpreted by United States courts in the light of reason and experience—governs a
claim of privilege unless any of the following provides otherwise: the United States
Constitution; a federal statute; or rules prescribed by the Supreme Court.”). For the
reasons explained below, the court declines to do so. That said, the court
appreciates that ANCRA and JCA were enacted to protect minors from harassment
and embarrassment, and thus places conditions on the responsive records to further
that purpose. See Doe ex. rel. Doe, 2008 WL 681486, at *1 (comparing the
underlying purpose of ANCRA with Federal Rule of Civil Procedure 26(c) and
finding that while ANCRA was not strictly applicable, its purpose could be
respected through precautionary measures).
A. Illinois Abused and Neglected Child Reporting Act
The City argues that the subpoena must be quashed because the responsive
records include allegations of child abuse and Defendants are not authorized to
access these documents. (R. 17, City’s Mot. at 4.) ANCRA says that records
reflecting “reports of child abuse and neglect or records concerning referrals under
this Act and all records generated as a result of such reports or referrals” shall be
confidential unless an exception applies. 325 ILCS 5/11. However, access to these
records may be granted by a court after an in camera inspection if “the court
determines that public disclosure of the information contained therein is necessary
for the resolution of an issue then pending before it.” 325 ILCS 5/11.1(a)(8).
Although the City asserts that the requested records include reports of child abuse
and are therefore privileged under ANCRA, (R. 17, City’s Mot. at 2), they may be
necessary and relevant to the issues before the court in this case and the court finds
an in camera review of the records unnecessary.
To resolve this question, the court looks to the substance of Plaintiff’s
complaint. Given the reasonable connection between the records WPD maintains
and the question of whether Defendants violated M.G.’s constitutional right, the
court finds that the records in question are necessary and relevant to the issues
pending before the court. Statements Plaintiff and M.G. made to WPD about the
physical altercation on September 28, 2022, may not only offer more information
about what took place and the identity of potential third-party witnesses to the
altercation, they may also be admissible as party admissions and used for
impeachment purposes. However, all documents the City produces in response to
the subpoena are subject to an agreed protective order prohibiting the parties from
using the materials except in connection with the prosecution or defense of this case
and requiring the redaction of any child’s name or other identifying information in
any court filing in which they are used or referenced. (See R. 11, Agreed
Confidentiality Order.)
B. Illinois Juvenile Court Act
The City also contends that it need not produce the requested documents
because they concern allegations of potential crimes committed by minors. (R. 17,
City’s Mot. at 5.) Under the JCA, juvenile law enforcement records that have not
been expunged are presumed confidential and may not be made public unless an
exception applies. 705 ILCS 405/1-7(A); Landon, 2000 WL 33172933, at *1. The
JCA protects, among other things: “records of arrest, station adjustments,
fingerprints, probation adjustments, the issuance of a notice to appear, or any other
records or documents maintained by any law enforcement agency relating to a
minor suspected of committing an offense.” 705 ILCS 405/1-3(8.2). Records that
identify the minor as a witness or victim are not protected from disclosure under the
JCA. Id. But if the records’ context does not clearly indicate whether the minor
was a victim or was investigated as an alleged juvenile offender, the court should
consider whether shielding the records would protect the privacy of the minor or
would instead shield possible misconduct from public view. See NBC Subsidiary
(WMAQ-TV) LLC v. Chi. Police Dep’t, 145 N.E.3d 70, 79 (Ill. App. Ct. 2019) (calling
CPD’s interpretation of JCA “overly broad” where CPD sought to keep information
related to minor victim of fatal shooting by police confidential). Additionally, when
“determining whether the records should be available for inspection, the court shall
consider the minor’s interest in confidentiality and rehabilitation over the moving
party’s interest in obtaining the information.” 705 ILCS 405/1-7(C)(3); see also
Landon, 2000 WL 33172933, at *2 (establishing that JCA did not bar juvenile
records from discovery where information was relevant to case and sought only for
discovery purposes and subject to a protective order).
Here, the City has not demonstrated that the JCA applies to the records
Defendants seek. Further, any records reflecting Plaintiff and M.G.’s statements
regarding the physical altercation are plainly relevant to this case. Although the
City argues that “multiple” minors are identified in the responsive records, (R. 17,
City’s Mot. at 5), nothing in the complaint or in the City’s motion indicates that
minors other than M.G. were involved in the altercation. As such, these minors can
only be considered witnesses to the altercation. In any event, requiring the parties
to redact the names and identifying information of all minors if such records are to
be used in this case alleviates any privacy concerns.
Conclusion
For the foregoing reasons, the City’s motion to quash the subpoena is denied.
The City is directed to designate the responsive records as “confidential” pursuant
to the parties’ protective order.
ENTER:
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foy ng B. im.
hited States Magistrate Judge