1 

UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

LEWIS A. BIANCHI, et al., ) 

 ) 

 Plaintiffs, ) 

 ) No. 12 C 0364 

vs. ) 

 ) Magistrate Judge Rowland 

HENRY C. TONIGAN, III, et al. ) 

 ) 

 Defendants. ) 

MEMORANDUM OPINION AND ORDER 

 Louis A. Bianchi, the State’s Attorney of McHenry County, and three of his 

employees (collectively, “Plaintiffs”) bring this action against Defendants Special 

State’s Attorney Thomas K. McQueen and Quest Consultants International and 

some of its employees (collectively, “Quest”), alleging that Defendants conspired to 

fabricate false criminal charges and prosecute Bianchi and his employees without 

probable cause or credible evidence.1 

 On May 23, 2012, Quest produced approximately 17,002 pages of documents 

to Plaintiffs. The parties now disagree about whether the vast majority of these 

documents should be treated as “confidential” under the parties’ agreed Protective 

Order. Quest has filed a Motion to Enforce Designation of Documents as 

Confidential Under the Protective Order (Dkt. 99 and Dkt. 121). For the reasons 

stated below, the Court denies Quest’s Motion to Enforce. 

I. Factual Background 

 

1 On November 9, 2012, Plaintiffs dismissed Defendant Henry C. Tonigan, III, with 

prejudice (Dkt. 176). 
2 

 This litigation arises out of the 2011 investigation and indictment of Louis 

Bianchi, the McHenry County State’s Attorney, as well as some of his employees, for 

various alleged acts of official misconduct, including use of county resources for 

political purposes and preferential treatment of certain criminal defendants. 

Bianchi and his employees were ultimately acquitted of all charges, and on January 

18, 2012, they filed suit against the people who investigated and prosecuted them, 

alleging they engaged in a politically and financially motivated conspiracy to 

remove Bianchi from office. The particular Defendant most relevant to this Motion 

is Quest Consultants International, a private investigation firm hired by the special 

prosecutors to investigate Bianchi. 

 On May 23, 2012, pursuant to Federal Rule of Civil Procedure 26(a)(1)(A), 

Quest produced approximately 17,002 pages of documents. The parties have 

described that production as consisting of three categories of documents: (1) email 

communications between and among Quest employees regarding their investigation 

of Bianchi; (2) Quest billing records related to the investigation; and (3) interview 

reports prepared by Quest employees during their investigation. The parties agreed 

to treat the documents as confidential until a protective order was negotiated and 

entered by the Court. 

 On June 20, 2012, the District Court entered the parties’ agreed Protective 

Order (Dkt. 93). The Order permits the producing party to designate documents as 

“confidential,” which is defined as “sensitive, personal and/or proprietary 

information that is treated as confidential.” (Id. at 2). The Protective Order restricts 
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the use of confidential material including not allowing a witness to see confidential 

material without signing a declaration of intent to be bound by the Protective Order 

(id. at 6, 13), and requiring any pleading containing confidential information to be 

filed under seal (id. at 4-5). 

 The Protective Order also provides a mechanism for challenging a parties’ 

confidentiality designation for lack of good cause: 

A party may challenge the propriety of a designation by another party 

of material or testimony as Confidential within a reasonable period of 

time after receipt or designation of the material or testimony 

designated as Confidential by giving written notice of such challenge to 

all parties. The party asserting the material or testimony as 

Confidential shall then have seven (7) days to either remove the 

Confidential designation or to file a motion in court alleging good cause 

for the Confidential designation. The party making the designation 

shall have the burden of proving the propriety of such designation....” 

(Id. at 7). 

 On June 26, 2012, pursuant to the Protective Order, Quest formally 

designated its entire May 23, 2012 production as confidential. Three days later, on 

June 29, 2012, Bianchi’s counsel objected to that designation, asserting that “none 

of the documents produced contain ‘confidential information’ as defined in the 

Protective Order” (Dkt. 121-7). 

 Quest filed an initial Motion to Enforce Designation of Documents as 

Confidential on July 6, 2012. The District Court referred that Motion to Magistrate 

Judge Nolan (Dkt. 107), who ordered the parties to continue to meet and confer in 

good faith (Dkt. 108). The parties were able to narrow the scope of their dispute 

after Plaintiffs agreed that the reports relating to background investigations and 

credit checks—known as “IRB reports”—were properly designated as confidential. 
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Whether or not the email correspondence, Quest’s billing records, and non-IRB 

witness interview reports constitute confidential information under the Protective 

Order remains in dispute. 

 In July 2012, a number of articles about this litigation appeared in area 

newspapers and news-related blogs. Quest contends that those publications contain 

“unauthorized leaks and disclosures” of information from their May 23 production 

(Dkt. 121 at 3). Quest also contends that the articles show that “Plaintiffs’ attorney 

is sharing information regarding documents produced by Quest with the media....” 

(Id.). In addition to the news articles, on July 24, 2012, Quest’s counsel received a 

voicemail message from Harry Heitzman, a reporter from the Daily Herald

newspaper, asking about Plaintiffs’ partial settlement with Quest’s co-defendant 

Henry Tonigan III. According to the Defendant, the reporter stated, in part, “I...did 

talk with the Plaintiff’s attorney for Mr. Bianchi, Terry Ekl. Mr. Ekl said that he 

believes that the case against Quest and McQueen is growing stronger and stronger 

every day as more documents are released in discovery.” (Dkt. 121 at 4). 

 Thereafter, and without seeking leave of court, Quest filed an amended 

version of its Motion to Enforce Documents as Confidential (Dkt. 121). Plaintiffs 

moved to strike that Amended Motion (Dkt. 122). In lieu of ruling on the motion to 

strike Quest’s amended pleading, Judge Nolan extended the time in which Bianchi 

had to respond (Dkt. 124). 

II. Discussion 

 In this case, a major point of contention between Quest and Bianchi is 
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whether unfiled discovery is presumptively private or presumptively public.2 In the 

context of the present dispute, however, the question is largely theoretical. The 

more pertinent issue is whether Quest has established “good cause” for the Court to 

protect the contested documents as provided for by the Protective Order. 

 In support of its Motion, Quest contends that it has established good cause to 

treat the documents as confidential, but devotes very little attention to the actual 

content of the documents at issue. Instead, Quest focuses on the context 

surrounding the May 23 production (i.e., the subsequent media attention and the 

negotiations relating to the Protective Order), and argues that: (1) enforcement of 

the confidentiality designation is necessary to prevent a “trial by media” in this 

case; and (2) the documents should be treated as “confidential” because the parties 

entered into a binding agreement to treat the production as confidential. 

 A. Good Cause to Treat the Documents as Confidential 

 The Federal Rules of Civil Procedure provide that “for good cause shown, the 

court . . . may make any order which justice requires to protect a party or person 

from annoyance, embarrassment, oppression, or undue burden or expense, 

including . . . that a trade secret or other confidential research, development, or 

commercial information not be revealed or be revealed only in a designated way....” 

Fed. R. Civ. P. 26(c). A party seeking a protective order under Rule 26(c) bears the 

burden of demonstrating good cause. Fed. R. Civ. P. 26(c)(7). To successfully carry 

 

2 Indeed, there is conflicting case law on that question. Jepson, Inc. v. Makita Elec. Works, 

Ltd., 30 F.3d 854, 858 (7th Cir. 1994) (unless prohibited by a protective order, a party can 

disseminate materials obtained in discovery); but cf. Bond v. Utreras, 585 F.3d 1061, 1074–

76 (7th Cir. 2009) (there is no implied right of public access to unfiled discovery). 
6 

the burden of establishing good cause, a party must demonstrate a particular need 

for protection. There must be evidence that a clearly defined and serious injury will 

result otherwise. 8 C. Wright & A. Miller, Federal Practice And Procedure § 2035, 

at 265 (1970); see Anderson v. Cryovac, Inc., 805 F.2d 1, 7 (1st Cir. 1986); United 

States v. Exxon Corp., 94 F.R.D. 250, 251 (D.D.C. 1981); United States v. Hooker 

Chem. & Plastics, 90 F.R.D. 421, 425; Reliance Ins. Co. v. Barrons, 428 F. Supp. 

200, 202–03 (S.D.N.Y. 1977). Where, as here, a party is seeking protection with 

respect to confidential business information, it must demonstrate that the 

information sought to be protected is, indeed, confidential and that disclosure might 

be harmful to its business. American Standard Inc. v. Pfizer Inc., 828 F.2d 734, 740 

(Fed.Cir. 1987); Exxon, 94 F.R.D. at 251; Parsons v. General Motors Corp., 85 F.R.D. 

724, 726 (N.D. Ga. 1980); United States v. IBM Corp., 67 F.R.D. 40, 46 (S.D.N.Y. 

1975). 

 1. Quest Emails 

 Quest argues that there is good cause to treat the email communications 

between and among Quest employees regarding their investigation of Bianchi as 

confidential because they are “without question” proprietary work-product 

generated in preparation for the underlying criminal matters. In response, 

Plaintiffs do not respond to Quest’s proprietary work-product argument, but assert 

that the emails are relevant because they (1) contradict Defendant McQueen’s 

claims of absolute immunity, and (2) establish the conspiracy among the 

Defendants. The relevance of the emails is not in dispute, the only question is 
7 

whether they are confidential as defined by the Protective Order. 

 It is not entirely clear whether Quest is asserting a privilege over its 

proprietary methods or asserting a privilege under the attorney work product 

privilege. (Compare Dkt.121 at 13 (disclosure of Quest’s strategy will result in a 

“chilling effect upon Quest’s future practices”) with id. at 11 (“all information 

contained within these emails is without question proprietary work product 

generated in preparation for the underlying criminal matters”). If the former, the 

Court has carefully reviewed the handful of emails, attached under seal to 

Plaintiffs’ response, (Dkt. 134 Ex. C), and does not find any of them to threaten 

disclosure of Quest’s strategy so as to have “a chilling effect upon Quest’s future 

practices and investigators practices” (Dkt. 121 at 11). 

 If Quest is relying on the attorney work-product privilege, although neither 

party addresses this issue, a substantial body of case law holds that work-product 

protection is unavailable when a prosecutor, who conducted a criminal 

investigation, later claims the privilege to protect his work during a resulting civil 

lawsuit. Wong v. Thomas, 238. F.R.D. 548, 551 (D. N.J. Jan. 10, 2007) (holding that 

documents related to closed criminal investigation of state employee was not 

protected by work product privilege is employee’s subsequent wrongful termination 

suit); Howell v. City of New York, No. CV-06-6347 (ERK)(VVP), 2007 WL 2815738, 

at *2 (E.D.N.Y. Sept. 25, 2007); Ostrowski v. Holem, No 02 C 50281, 2002 WL 

31956039, at *4 (N.D. Ill. Jan. 21 2002); Hernandez v. Longini, No. 96 C 9203, 1997 

WL 754041, at *2 (N.D. Ill. Nov. 13, 1997) (“Courts have expressly found the [work 
8 

product] privilege unavailable when a prosecutor in a prior criminal investigation 

later objects to discovery of her work product by a litigant in a related civil 

lawsuit—exactly the situation confronting the Court in this case.”). This Court is 

not ruling on this question, but Quest has, without doubt, failed to establish good 

cause to treat nearly 17,000 pages of emails as confidential based upon a blanket 

assertion of the attorney work-product privilege.3 

 2. Quest Billing Records 

 Quest argues that the billing records included in its May 23 production 

should be kept confidential because those records are likely to cause Quest 

substantial embarrassment, annoyance, and loss of business. Quest does not attach 

any of the billing records to its pleadings. Nor does it explain what, in particular, 

about the records is likely to cause embarrassment. In response, Bianchi argues 

that the billing records cannot be deemed confidential because they have already 

been made part of the public record. Quest billing records were previously tendered 

to Plaintiffs’ counsel pursuant to a subpoena in the underlying criminal 

proceedings, and they were also filed in the state court in relation to the 

appointment of the special prosecutors (McHenry County Case 09 MR 142) (Dkt. 

134 at 7). There was no protective order in the underlying criminal cases, and the 

court file in Case 09 MR 142 was unsealed on March 9, 2012 (id.).4 

 

3 This Order does not prevent Quest from properly asserting a privilege with respect to 

specific documents. Plaintiffs’ counsel indicated his willingness to negotiate proper privilege 

assertions in his email correspondence of July 3, 2012 (Dkt. 121-8 at 3). 

4 According to Quest’s exhibits to its Motion, some of its billing records have already been 

posted on the McHenry County Blog (Dkt. 121-1 at 24-25). 
9 

 In this case, Quest cannot show good cause because, even if the billing 

records were at some point “confidential,” the records lost their confidentiality when 

they were filed, without any special judicial protection, in the underlying cases. 

Thus, the Court will not enforce Quest’s confidentiality designations with respect to 

the billing records. 

 3. Non-IRB Witness Interview Reports 

 As for the non-IRB witness interview reports, Quest argues that the reports 

should be treated as confidential because they relate to sensitive facts and 

circumstances of the underlying criminal investigation.5 The Court finds that 

argument insufficient to support a finding of good cause in this case. The reports 

summarize interviews of individuals that were thought to be “key prosecution 

witnesses.” Those witness statements were tendered to Bianchi in the underlying 

criminal proceeding. Also, because the underlying criminal investigation resulted in 

two public trials, the information contained in reports of interviews with “key 

witnesses” is presumably a part of the public record. This fact distinguishes the 

cases cited by Quest (Dkt. 121 at 12). Quest has failed to explain how the 

information contained in the witness reports maintains its sensitivity even after the 

two highly-publicized trials in the underlying case. 

B. Enforcement as Necessary to Avoid “Trial by Media” 

 

5 Quest also argues that the reports are confidential because the witnesses consented to be 

interviewed only under the assurances that the substance of those interviews would remain 

confidential (Dkt. 121 at 10-11). Plaintiffs sent a Rule 11 safe harbor letter to Quest on 

August 3, 2012 demanding that Quest withdraw the statement. In response, Quest admits 

that this statement was an “inadvertent misstatement of fact” (Dkt. 148 at 3 n.1; Dkt. 148-1 

at 4). Thus, the Court will not consider that element of Quest’s argument. 
10 

 Quest argues that the Court should endorse its confidentiality designations 

because Bianchi has already leaked confidential information to the press, and a 

court order is needed to prevent further leaks to the media. 

 Quest’s contention that certain July 2012 news accounts “make it evident 

that Plaintiffs attorney is sharing information regarding documents produced by 

Quest” is without factual support (Dkt. 121 at 3). The Court has carefully reviewed 

the five post-production articles / blog posts Quest attached to its motion.6 None 

contain any information leaked from the Quest documents. The newspaper articles, 

published between July 24 and July 26, 2012, each report the settlement by 

Defendant Tonigan, and contain information from the public docket and from nonparty witnesses. The blog post from July 24, 2012, also triggered by the Tonigan 

settlement, essentially posts the Complaint filed publically in this case.7 It is true 

that contained in the articles regarding the Tonigan settlement, Plaintiffs’ counsel 

commented on his belief in the strength of the case against the remaining 

defendants and referenced the existence of the discovery in this case, but Plaintiffs’ 

view of the impact of the discovery documents that are the subject of this motion is 

a matter of public record (Dkt. 134 at 6). The Court rejects the contention that 

 

6 Bianchi Conspiracy Suit Ruling Expected in August, July 4, 2012 (Dkt. 121-2 at 17-21); 

Special Prosecutor Settles Federal Lawsuit with Bianchi, July 24, 2012 (Dkt. 121-2 at 2-4); 

$157K Settlement from One Defendant in Bianchi Conspiracy Case, July 24, 2012 (Dkt. 121-

2 at 11-14); Our View: Settlement Says a Lot, July 26, 2012 (Dkt. 121-2 at 8-10); Lou 

Bianchi’s Case Against Those Who Persecuted Him, July 26, 2012 (Dkt. 121-2 at 22-34). 

7 Due to the length of the Complaint, the Blog states that it will post ten pages per day 

(Dkt. 121-2 at 22). Quest seems to misunderstand this as the Blog “vow[ing] to post 

additional information about the case every day for the next ten days” (Dkt. 121 at 4). 
11 

Bianchi has leaked or is leaking sensitive information to the press.8 

 This conclusion makes Quest’s reliance on Seipler v. Cundiff, No. 08-C-50257, 

2011 U.S. Dist. LEXIS 120079, at *1-11 (N.D. Ill. Oct. 18, 2011), unpersuasive. 

First, Seipler involved the web posting of 50 pages from employee disciplinary files, 

documents unquestionably covered by the protective order in that case. Second, the 

circumstantial evidence in Seipler suggested that the Plaintiff had himself posted 

the confidential documents. 

 Quest argues that designating the documents as confidential is necessary to 

“prevent further embarrassment and financial damage” to Quest (Dkt. 121 at 8). 

This case is going to receive extensive media attention; it already has. The Court 

finds that application of the Protective Order to Quest’s entire May 23 production is 

not a proper way to address this concern. The ethical rules governing conduct by 

lawyers forbid any counsel from making a statement that he knows or should know 

would threaten the fairness of the court proceeding. Illinois Rule of Professional 

Conduct 3.6, which governs “Trial Publicity,” states that, in cases attracting media 

attention, a lawyer may not make any extrajudicial statement that would “pose a 

serious and imminent threat to the fairness of an adjudicative proceeding in the 

matter.” The Court is confident that all counsel involved in this case will be mindful 

 

8 Plaintiffs sent a Rule 11 safe harbor letter to Quest on August 3, 2012, objecting to Quest’s 

accusations in this regard. In response, Quest denied that it was accusing Plaintiffs’ counsel 

of any misconduct (Dkt. 148-1). The Court is unable to read Quest’s brief in any way other 

than accusing Plaintiffs’ counsel of leaking information to the press. Such accusations are 

serious and, when unfounded, are improper and a waste of the Court’s resources. 
12 

of those ethical limitations as they interact with the media.9 

 C. The Protective Order as an Enforceable Contract 

 Finally, Quest argues that the Court should enforce its designation of 

documents as confidential because Plaintiffs agreed (pending entry of a protective 

order) to keep the material confidential and then agreed to the terms of the 

Protective Order itself (Dkt. 121 at 11). This argument lacks merit for several 

reasons. 

 First, Plaintiffs never agreed to keep the material confidential during the 

duration of the litigation. They agreed only to not disclose the information while the 

parties negotiated the terms of a protective order. On May 22, 2012, counsel for 

Plaintiffs wrote: 

I do not anticipate any problem with negotiating a protective order to 

cover sensitive documents. I will agree not to disseminate any 

documents or information contained in the document to anyone, 

including my clients, until such time as an agreement is executed. 

Then, on May 23, 2012, Quest delivered their production with a cover letter stating 

as follows: 

Please be advised that this production is being provided to you as a 

professional courtesy prior to the entry of a formal Protective Order in 

 

9 As an alternative remedy, Quests requests that the Court issue an order prohibiting 

Bianchi from divulging any information contained in the May 23rd production to third 

parties. Judicial restraints on extrajudicial comments of lawyers about a pending 

proceeding—commonly referred to as “gag orders”—must be evaluated in the context of 

First Amendment jurisprudence. Chase v. Robson, 435 F.2d 1059 (7th Cir. 1970) 

(sustaining challenge by counsel and defendants to an order restricting them from speaking 

to the press about the trial). Courts in this circuit require a showing of a “clear and present 

danger” or a “serious and imminent threat” to a fair a trial before restraining litigant 

speech. Chicago Council of Lawyers v. Bauer, 522 F.2d 242, 249 (7th Circuit. 1975). For the 

same reasons that Quest fails to show good cause, it fails to meet the rigorous standard for 

a gag order. 
13 

this case and in anticipation of same. We trust that you will keep 

these documents confidential pursuant to our agreement of May 22, 

2012 until the parties are able to enter a formal protective order. 

Those communications hardly represent an agreement by Plaintiffs to forever keep 

the production confidential, as Quest now suggests. 

 Moreover, the Protective Order expressly provides a procedure for 

challenging an opponent’s designation of documents as protected (Dkt. 93 at 7). Far 

from stripping Plaintiffs of their right to object to a confidentiality designation, the 

Protective Order expressly reserves that right and provides a mechanism for its 

exercise. Quest does not address this provision of the Protective Order, but 

attempts to rely on Paine v. City of Chicago, No. 06 C 3173, 2006 WL 3065515, at 

*18 (N.D. Ill. Oct. 26, 2006), for the proposition that a Protective Order is a binding 

contract (Dkt. 121 at 10). The problem with Quest’s argument is that the Protective 

Order in Paine expressly defined “confidential matter” to include “files generated by 

the investigation of complaints of misconduct by Chicago police officers.” Paine, 

supra, at *2. Here, to the contrary, “confidential” is defined as “sensitive, personal 

and/or proprietary information that is treated as confidential” (Dkt. 93 at 2). As 

discussed above, Quest has failed to establish that the emails, billing records or 

non-IRB reports are, in their totality, “confidential” as defined in the Protective 

Order. 

 Therefore, the Court rejects Quest’s argument that the Protective Order, or 

the interim confidentiality agreement that preceded it, are binding contracts that 

prevent the Court from considering Plaintiffs’ objections to the confidentiality 

designations of the emails, the billing records, or the non-IRB reports. 
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III. Conclusion 

 For the foregoing reasons, the Court DENIES Quest’s Motion to Enforce 

Designation of Documents as Confidential Under the Protective Order (Dkt. 99 and 

Dkt. 121) and TERMINATES AS MOOT Bianchi’s Motion to Strike Quest’s 

Amended Motion to Enforce (Dkt. 122). 

 ENTER: 

 _________________________________ 

 MARY M. ROWLAND 

 United States Magistrate Judge 

Dated: November 28, 2012