Case: 1:14-cv-00223 Document #: 41 Filed: 07/31/14 Page 1 of 7 PageID #:232

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

Catherine Waller, on behalf of her minor
son D.B., and Abena Andoh, on behalf
of her minor son D.H.,

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Plaintiffs,
vs.
City of Chicago, Chicago Police Officers
J.E. Morlock (Star #15358), Kenneth Flaherty
(Star #13584), Marco Prano (Star #9477) and
Unknown Chicago Police Officers
Defendants.

No. 14 CV 00223

Judge St. Eve
Magistrate Judge Brown

Jury Demanded

DEFENDANTS’ JOINT
MOTION FOR ENTRY OF PROTECTIVE ORDER
Defendants City of Chicago, by its attorney, Stephen R. Patton, Corporation Counsel of
the City of Chicago, and Officers Jonathan Morlock and Kenneth Flaherty, by and through one
of their attorneys, Julian M. Johnson, Assistant Corporation Counsel of the City of Chicago
(collectively “Defendants”), respectfully move this Honorable Court, pursuant to FED. R. CIV.
P. 26(c), for entry of a protective order designating as “confidential” video footage of Chicago
Police squad car Beat 632 from December 22, 2013.
In support thereof, Defendants state as follows:
BACKGROUND
Plaintiffs, Catherine Waller, Abena Andoh, and Adren Wilbourn on behalf of their minor
children, D.B., D.H., and J.G. have filed this Civil Rights action against the City of Chicago and
three Chicago Police officers alleging federal claims of Excessive Force, Failure to Intervene,
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Deprivation of Substantive Due Process, Failure to Provide Medical Care, and Conspiracy to
Commit Constitutional Violations. Plaintiffs are also alleging state law claims for Assault and
Battery, Respondeat Superior, and Indemnification. Plaintiffs allege that on December 22, 2013
Plaintiffs were in a motor vehicle with several other minors when the vehicle was stopped by
Defendants Officers Morlock and Flaherty near 95th and LaSalle Street, Chicago, IL. Moments
later, two of the passengers attempted to flee the scene. Defendant Prano arrived on the scene, in
Chicago Police squad car Beat 632 as an assisting officer. As Officer Prano approached the
vehicle, the vehicle began moving in reverse and at some point gunshots were heard. The
Complaint alleges that Officer Prano was the one who discharged his weapon and that D.B. and
D.H, who were occupants in the vehicle, were struck with bullets. Plaintiffs are seeking
damages for those alleged injuries.
Officer Prano squad car, Beat 632, was equipped with a dashboard camera. Parts of the
incident between the officers and the Plaintiffs were captured by said camera. The video footage
that is the subject of this motion is that footage. While Defendants do not quite know under
which circumstances or from what source Plaintiffs have come in possession of said footage,
Defendants, on information and belief, have reason to think that Plaintiffs came into possession
of the footage prior to the discovery process in this lawsuit. Defendants are requesting a
protective order from this Court under Federal Rule of Civil Procedure 26(c)(1) that the in-car
camera video footage of Chicago Police Beat 632 from the December 22, 2013 incident not be
released to third parties, the public, or the media.
37.2 CONFERENCE COMPLIANCE
Attorney for the City did apprise Plaintiffs’ counsel Timothy Fiscella of Defendants’
intent to file this motion during a telephonic conference on June 23, 2014. When Counsel for the
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City inquired whether this motion could be filed as “unopposed,” Plaintiffs’ counsel stated that
Plaintiffs object to this motion without further explanation.
ARGUMENT
I.

GOOD CAUSE EXISTS TO DEEM THE VIDEO FOOTAGE CONFIDENTIAL.
A. Not all materials produced in discovery may be freely disseminated to the public
and, as such, there is good cause to deem the video footage confidential.
Rule 26(c) of the Federal Rules of Civil Procedure provides that a “court may, for good

cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or
undue burden or expense . . . specifying terms, including time and place, for the disclosure or
discovery.” Fed. R. Civ. Pro. 26(c). While court proceedings generally are open to public
scrutiny, not all materials produced in discovery but unfiled in court proceedings may be freely
available or disseminated to the public. Courts have consistently provided confidential protection
for the kind of unfiled, sensitive documents at issue here. For instance, in Seattle Times Co. v.
Rhinehart, 467 U.S. 20, 33 (1984), the Supreme Court held that the public’s right of access is
limited to traditionally publicly available sources of information, and “restraints placed on
discovered, but not yet admitted, information are not a restriction on a traditionally public source
of information.” The Court recognized that Fed. R. Civ. Pro. 26(c) allows for protection from
annoyance and embarrassment, and while Rule 26(c) does not contain a specific reference to
privacy, privacy is “implicit in the broad purpose and language of the Rule.” Id. at 35, n.21.
Police in-car videos, such as the one at issue here, which are disclosed through discovery, should
not be disseminated to the public and the media during the pretrial discovery process. The
videotapes are not a part of the court records. Public records do not include information

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exchanged between the parties during discovery. There is no presumption of public access to the
videotapes at this point in the litigation.
B. Dissemination of the video would impede Defendants’ right to a fair trial.
The release of the video of the incident would severely harm the Defendants’ right to a
fair trial. “Television indubitably has a much greater potential impact on jurors than print
media.” In re NBC Universal, Inc., 426 F.Supp.2d 49, 58 (E.D.N.Y. 2006). “Voir dire would
be an insufficient cure if a large segment of citizens in this district are exposed to the
prejudicial information; exclusion of a considerable portion of the population would skew the
panel, making it more difficult to find a cross-section of the community. Jurors’ assurances that
they have not been influenced by media reports are not necessarily dispositive.” Id. (emphasis
added). And, as this Court recognized, “[v]ideotapes are subject to a higher degree of potential
abuse than transcripts. They can be cut and spliced and used as sound-bites on the evening
news…” Hobley, 225 F.R.D. at 226 (quoting Felling v. Knight, IP 01-0571-C-T/K, 2001 WL
1782360, *3 (N.D. Ind. Dec. 21, 2001); see also Jones v. Clinton, 12 F.Supp.2d 931, 934 (E.D.
Ark. 1998) (detailing extensively potential problems in releasing video to media). If Plaintiffs
are allowed to disseminate the video of the incident to the media, the video most likely will be
widely publicized by the media outlets. The concern is that these media entities often cut and
splice videos before airing them. Such a selective showing of the video could taint potential
jurors, impede a fair jury selection, and affect Defendants’ right to a fair trial.
Even if the video were to be aired by the media as is, without splicing, this would still be
prejudicial to Defendants because the video is incomplete. First, the police vehicle containing
the video camera is parked on an angle while it is recording the incident. Because of this
limited view, it is impossible to see the actions of others not in view of the camera. The video
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recording alone gives an incomplete narrative of the second-by-second actions of the persons at
the scene. Additionally, the video does not show what is being done or said inside of the
vehicle the Plaintiffs were in. Second, the video contains no sound. This proves very
problematic as potential juror pool members cannot hear any verbal commands, comments
from the officers, or responses from the Plaintiffs. This incomplete picture is highly prejudicial
as there is significant danger that the jury pool could form conclusions.
C. The video should not be released to the public and the media out of concern for the
personal safety, privacy, and security of the defendant officers as well as the other
third party minors shown in the video.
To ensure the safety, security, and privacy of the involved officers, Plaintiffs, and other
individuals featured on this video footage which includes other minors, the video should barred
from dissemination to the public and/or the media. These other minors were occupants in the
same vehicle as Plaintiffs. However, these minors are not parties to this lawsuit and it must be
inferred that they would want their privacy protected. Concern for their privacy and personal
safety is paramount.
D. Plaintiffs will suffer no harm or prejudice if this Court were to grant the request for
the protective order.
Plaintiffs would not be prejudiced in any way by the entry of a protective order. In fact, a
protective order would likely minimize discovery disputes, as the parties will more readily
disclose sensitive documents knowing they would only be used for the purposes of advancing the
litigation of this matter. The ABA Model Rules of Professional Conduct, incorporated into this
Court’s local rules in Local Rule 83.50, specifically limit the statements which may be made by
counsel in a pending litigation matter, stating “A lawyer who is participating or has participated
in the investigation or litigation of a matter shall not make an extrajudicial statement that the
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lawyer knows or reasonably should know will be disseminated by means of public
communication and will have a substantial likelihood of materially prejudicing an adjudicative
proceeding in the matter.” American Bar Association Model Rule 3.6(a). Denying public
dissemination of this video would prevent attempts by Plaintiffs to utilize the media to influence
jurors’ view of the Chicago Police Department with inflammatory allegations and an entirely
incomplete picture of the incident at hand. Furthermore, prohibiting the release of the video
would not prejudice the Plaintiffs at all; rather, it would merely require Plaintiffs’ counsel to try
their case on the facts without using the media to gain favorable public sentiment within the
venire. In addition, restricting public access to the video until the close of the proceedings strikes
the proper balance of any perceived need for the public access to information with the need to
fair trial. Even if this Court should determine that the video should eventually be released,
Defendants at this time seek to avoid the release of the video prior to the conclusion of the
proceedings to avoid any prejudice on the jury pool. Courts have repeatedly found such a balance
to be proper. See U.S. v. Weed, 184 F.Supp.2d 1166, 1176-1177 (N.D. Ok. 2002) (prohibiting
release of videotape prior to trial to preserve right to fair trial and finding “the government’s
proposal that the tape be sealed until the jury in this case has been selected and sworn is narrowly
tailored to protect its right to a fair trial”).
WHEREFORE, Defendants City of Chicago and Officers Morlock and Flaherty
respectfully request that this Honorable Court grant the Defendants’ motion for entry of
protective order designating the police in-car video depicting the December 2013 incident as
“confidential” and barring its dissemination.
Dated: July 31, 2014

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Respectfully Submitted,
STEPHEN R. PATTON
CORPORATION COUNSEL
By:

/s/ Carla M. Kupe-Arion
CARLA M. KUPE-ARION
Assistant Corporation Counsel
Counsel for Defendant City of Chicago

/s/ Julian M. Johnson
JULIAN M. JOHNSON
Assistant Corporation Counsel
Counsel for Defendants Morlok and
Flaherty

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