Lovelace et al v. Gibson et al
OPINION denying 42 Motion to Quash. SEE WRITTEN OPINION. Entered by Magistrate Judge Tom Schanzle-Haskins on 12/05/2017. (SKN, ilcd) Modified on 12/5/2017 to reflect correct Judge. (SKN, ilcd).
Tuesday, 05 December, 2017 03:10:50 PM
Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS SPRINGFIELD DIVISION
CURTIS LOVELACE et al.,
ADAM GIBSON et al.,
TOM SCHANZLE-HASKINS, U.S. Magistrate Judge:
This matter comes before the Court on the People of the State of
Illinois (Illinois) Motion to Quash Plaintiff’s Subpoena(s) (d/e 42). For the
reasons set forth below, the Motion is DENIED.
Plaintiff Curtis Lovelace was charged with murdering his wife Cory
Lovelace. He was tried twice in Illinois state court. The first trial ended in a
mistrial because the jury could not reach a unanimous verdict. The jury in
the second trial acquitted Curtis Lovelace. Plaintiffs then brought this
action against Quincy, Illinois, Police Detective Adam Gibson; Quincy
Police Chief Robert Copley; Quincy Police Sergeant John Summers;
Quincy Police Lieutenant Dina Dreyer; Quincy Police Detective Anjanette
Biswell; Adams County, Illinois, First Assistant States Attorney Gary Farha;
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Adams County Coroner James Keller; the City of Quincy, Illinois; and
Adams County, Illinois. The Plaintiffs alleged claims under 42 U.S.C. §
1983 for withholding exculpatory evidence, malicious prosecution, unlawful
detention, conspiracy to violation Plaintiffs’ constitutional rights, and
supervising officers’ failure to intervene; and state-law claims for false
imprisonment, intentional infliction of emotional distress, malicious
prosecution, civil conspiracy, municipal respondeat superior liability, and
indemnification by the Defendant municipalities. Complaint (d/e 1), Counts
In discovery, Plaintiffs served deposition subpoenas (Subpoenas) on
non-parties Edwin R. Parkinson, Chief Special Prosecutor, Office of Illinois
State’s Attorneys Appellate Prosecutor; and David J. Robinson, Deputy
Director, Special Prosecutor, Office of Illinois State’s Attorneys Appellate
Prosecutor. Parkinson tried both of the cases against Curtis Lovelace, and
Robinson assisted Parkinson in conducting the second trial. The state
court appointed the Office of Illinois State’s Attorney Appellate Prosecutor
to try the case because the Adams County State’s Attorney had a conflict
of interest. Curtis Lovelace was an attorney and a part-time state’s
attorney for Adams County at the time of his wife’s death. See Plaintiffs’
Response to the State of Illinois’ Motion to Quash Plaintiff’s Subpoena(s)
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(d/e 45) (Response), at 3. The depositions are set for January 10, 2018.
Motion, attached Subpoenas.
Illinois has now moved to quash the Subpoenas.
This Court may quash a subpoena that requires disclosure of
privileged or otherwise protected matter, or imposes an undue burden on
the subpoenaed party. Fed. R. Civ. P. 45(d)(3)(A)(iv). To determine
whether the subpoena imposes an undue burden, the Court should “weigh
the burden to the subpoenaed party against the value of the information to
the serving party.” Amini Innovation Corp., v. McFerran Home Furnishings,
Inc., 300 F.R.D. 406, 409 (C.D. Ca. 2014); see Northwestern Memorial
Hosp. v. Ashcroft, 362 F.3d 923, 927 (7th Cir. 2004). The burden imposed
on non-parties is entitled to “special weight” in performing this calculus.
Cusumano v. Microsoft Corp., 162 F.3d 708, 717 (1st Cir. 1998); Mosely v.
City of Chicago, 252 F.R.D. 421, 434 (N.D. Ill. 2008). Illinois has the
burden of proof to demonstrate that the Subpoenas should be quashed.
See CSC Holdings, Inc., v. Redisi, 309 F.3d 988, 993 (7th Cir. 2002).
Illinois argues that Parkinson and Robinson are protected from
testifying under the Silent Witness doctrine. The case cited by Illinois hold
that a criminal defendant in a criminal case cannot subpoena the
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prosecutor of that case to testify in that case. People v. Palacio, 240
Ill.App.3d 1078, 1094, 607 N.E.2d 1375, 1384-85 (Ill.App. 4th Dist. 1993).
This is not a criminal case and Parkinson and Robinson are not attorneys
of record in this case. The Silent Witness doctrine does not apply.
Alternatively, Illinois asks the Court to “require plaintiff to specify the
subject matter of the deposition and limit the scope of said deposition to
those matters and to a reasonable time.” Motion, ¶ 3. Illinois quotes
Williams v. Sandel, 2010 WL 11538240 (E.D. KY. February 12, 2010) for
the proposition, that “depositions of attorneys in general and of prosecutors
in particular are often closely scrutinized to avoid the obvious potential for
abuse and to prevent unnecessary impingement upon prosecutorial
authority and discretion.” Williams, 2010 WL 1153820, at *4.
In this case, the Court sees no risk of abuse or impingement on
prosecutorial discretion. The risk of abuse or impingement comes most
often when a party seeks to make an attorney representing a party in a
case a witness in the same case. See Ill. Sup. Ct. RPC 3.7 (advocate in a
case cannot be a witness in the same case); Palacio, 607 N.E.2d at 138485 (Silent Witness doctrine). The criminal case against Curtis Lovelace is
over here so those concerns do not exist. Furthermore, Parkinson and
Robinson can refuse to answer questions or produce documents that are
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protected by applicable privileges or other applicable rule or law. See Fed.
R. Civ. P. 30(c)(2). The depositions are also already limited in time. Fed.
R. Civ. P. 30(d).
Parkinson and Robinson are likely to have discoverable information.
Parkinson and Robinson discussed their interactions with Gibson on the
record in second criminal trial and entered into a stipulation about those
interactions in that case. See Motion, at 2; Response, at 8. Parkinson and
Robinson clearly have discoverable information about the Gibson’s
conduct. These prosecuting attorneys in Williams had little or no
discoverable information. The plaintiff in Williams also brought § 1983
claims of malicious prosecution against law enforcement officers. The
Williams plaintiff served subpoenas on four members of the
Commonwealth Attorney’s office. Three of the proposed deponents had no
connection with the underlying prosecution of the Williams plaintiff and the
fourth had only limited relevant information. Williams, 2010 WL 11538240,
at *3. Here Parkinson and Robinson have discoverable information. The
Williams court quashed the subpoenas on the three individuals with no
involvement in the criminal case and limited the scope and length of the
deposition of the fourth to the matters on which he had knowledge. Here,
Parkinson and Robinson have personal knowledge of relevant significant
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relevant information. The Court, in its discretion, finds that the restrictions
imposed in Williams are not appropriate here.
Illinois argues that the depositions are unnecessary because the
Parkinson and Robinson fully discussed their interactions with Gibson on
the record in the second criminal trial and stipulated to those matters. The
Court disagrees. Parkinson and Robinson’s statements as counsel of
record in a criminal trial were not under oath. Their statements may now
be used for impeachment, but may not be admissible as substantive
evidence if, for example, Parkinson or Robinson are not available when this
matter goes to trial. See Fed. R. Evid. 613, 803(8)(A)(ii), 804(b)(1). The
stipulation in the second criminal trial would not be admissible in this case
because many if not most of the parties in this case were not parties in the
second criminal trial and did not join the stipulation.
In addition, Plaintiffs may wish to ask seek information that is relevant
in this case that was not relevant in the second criminal trial. The elements
of the claims in this case differ from the issues in the second criminal trial.
Plaintiffs may wish to ask questions specifically relevant to the elements in
this case. Moreover, the Plaintiffs are entitled to inquire whether Parkinson
and Robinson have other relevant information. Parkinson and Robinson’s
statements on the record in the second criminal trial and the stipulation in
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the second criminal trial are not a sufficient substitute for the proposed
THEREFORE, the People of the State of Illinois Motion to Quash
Plaintiff’s Subpoena(s) (d/e 42) is DENIED.
ENTER: December 5, 2017
s/ Tom Schanzle-Haskins
UNITED STATES MAGISTRATE JUDGE
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