Martinez et al
MEMORANDUM OPINION Signed by the Honorable John F. Grady on 11/20/2014. Mailed notice(cdh, )
Nov. 20, 2014
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
ALBERTO MARTINEZ, MELITON
MARTINEZ, DANIEL MARTINEZ, SOFIA
MARTINEZ, MARTIN MARTINEZ, and
CITY OF CHICAGO, et al.,
No. 09 C 5938
Before the court is the plaintiffs’ motion for sanctions. For
the following reasons, the court grants the motion in part, and
denies it in part.
The plaintiffs sued the defendants — the City of Chicago,
certain individual police officers, and an Assistant Corporation
Counsel — for damages stemming from the plaintiffs’ arrests on
September 23, 2008.
Among other claims, the plaintiffs asserted
state-law claims against the defendants for malicious prosecution.
They served subpoenas on the Cook County State’s Attorneys’ Office
(“CCSAO”) during discovery for documents related to their criminal
The plaintiffs have moved to sanction the CCSAO and
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its attorneys for unreasonably prolonging the discovery over a
period of several months.1
Plaintiffs’ Discovery Requests
Plaintiffs’ April 18, 2012 Subpoena
The September 23, 2008 arrests were based on charges that
plaintiffs Alberto Martinez, Sophia Martinez, Meliton Martinez, and
Felipe Garcia had committed various misdemeanor offenses, including
(See Second Am. Compl. ¶¶ 18, 26, 36, 44.)
appears that a Cook County Circuit Court Judge dismissed the
charges against Felipe Garcia prior to trial.
(See id. at ¶ 45;
Letter from J. Bruce to J. Kosoglad, dated June 5, 2012, attached
as Ex. 2 to Pls.’ Mot., at 1 (stating that the case against one of
the plaintiffs “was stricken off the call with leave to reinstate
on May 29, 2009”).) After a bench trial, Cook County Circuit Court
Judge Thomas Donnelly found the remaining defendants not guilty on
or about June 1, 2009.
(See Pl.’ Mem. at 2.)
Three months later,
attorney Jared Kosoglad — who had represented the plaintiffs in
their criminal cases — filed this civil lawsuit on their behalf.
On April 18, 2012, Mr. Kosoglad served a subpoena on the CCSAO to
obtain records related to the plaintiffs’ prosecutions:
Some of the relief that the plaintiffs seek in their sanctions motion
is directed to the City of Chicago. (See Pls.’ Mot. for Sanctions Against Third
Party Discovery Resp. the Cook County State’s Attorney & Its Counsel (“Pls.’
Mot.”), Dkt. 165, at 24-25, ¶¶ 1-2.) The plaintiffs have settled their damages
claims against the defendants and voluntarily dismissed those claims with
prejudice. They have clarified that, in light of the settlement, they no longer
seek sanctions against the City of Chicago.
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Identify and produce any and all documents related to the
criminal cases involving the Martinez family including
documents, e-mails, memos, notebooks, notes, pleadings,
drafts and correspondence from the following cases: 08275998, 08-276351, 08-276019, 08-276000.
(Subpoena dated Apr. 18, 2012, attached as Ex. 1 to Pls.’ Mot., at
I have reviewed the court docket which indicates that the
criminal case under case number 08MC102760000 was
stricken off the call with leave to reinstate on May 29,
2009 and that the criminal cases under case numbers
08MC1276019, 08MC1276351, and 08MC1275998 were bench
trials and the finding was not guilty.
thorough search was conducted to determine whether these
files had been retained and at this time the files cannot
be located. Therefore, there are no documents in the
State’s Attorney’s possession responsive to this
(Letter from J. Bruce to J. Kosoglad, dated June 5, 2012, at 1.)
Plaintiffs’ January 28, 2013 Subpoena
defendants Jeffrey Weber and Allyson Bogdalek — arrested and
charged plaintiff Daniel Martinez with resisting arrest.
Pls.’ Mot. at 2.)
Mr. Kosoglad represented Martinez during his
2012 prosecution and contends that the defendants arrested him in
retaliation for his claims against them in this lawsuit.
On January 28, 2013, a state-court judge found Martinez not
guilty after a bench trial in Branch 34 of the Circuit Court of
(Id. at 3.)
jury misdemeanor cases.
Judges at Branch 34 preside over non(See Third Party Respondent’s Resp. to
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Pls.’ Mot. for Sanctions (“CCSAO’s Resp.”), Dkt. 167, at 3.)2
Misdemeanor cases in which the defendant has demanded a jury are
tried at Branch 46.
(Id. at 4.)
As a matter of policy and/or
practice, the CCSAO does not create a “typical attorney’s file” for
misdemeanor bench trials.
Instead, Assistant State’s
Attorneys (“ASAs”) fasten together “the necessary documents” —
usually documents created by other agencies (e.g., arrest reports)
— for use during the trial.
They place those documents into
a “Dispo bin” immediately after the judge issues a final decision.
Chicago Court Sergeants retrieve the materials from the bin
at the end of each court day for shredding.
After the judge
acquitted Martinez, Mr. Kosoglad “immediately” returned to his
office and e-mailed a subpoena to ASA Patricia Fallon seeking
telephone the following day and told Kosoglad that “the file was
destroyed immediately upon conclusion of the case,” citing the
document-destruction practice that the court has just described.
(Id. at 3-4.)
The plaintiffs filed an emergency motion in this court to
preserve the criminal file or, in the alternative, for a rule to
The court draws some of the following information from evidence that
the parties have submitted; other information is only attorney argument. The
parties effectively agree, however, that these facts are accurate.
ASA Fallon, and ASA Mary E. McClellan, have been primarily responsible
for handling the CCSAO’s responses to the plaintiffs’ discovery requests. (See
CCSAO’s Resp. at 2.) They are both civil attorneys in the CCSAO’s Civil Actions
They did not participate in the plaintiffs’ criminal
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show cause why the court should not hold the CCSAO in contempt for
destroying the file.
At the January 30, 2013 hearing on the
motion, Mr. Kosoglad cited two documents that he argued undercut
the CCSAO’s representations about the file: (1) an “Application for
Authority to Dispose of Local Records,” dated October 12, 1999; and
(2) a “Records Disposal Certificate,” dated January 17, 2013. (See
Trans. of Hearing, dated Jan. 30, 2013, attached as Ex. 10 to
CCSAO’s Resp., at 3-4, 9-11); Application for Authority to Dispose
of Local Records No. 99:25C, dated Oct. 12, 1999, attached as Ex.
32 to Pls.’ Mot.; Records Disposal Certificate, dated Jan. 17,
2013, attached as part of Group Ex. 9 to Pls.’ Mot.)
the Illinois’s Local Records Act, the CCSAO must obtain the Local
Records Commission of Cook County’s approval before destroying any
public record. See Local Records Act, 50 ILCS 205/7; Ill. Admin.
Code tit. 44, § 4500.30 (requiring agencies to submit applications
periods); id. at § 4500.40 (requiring agencies to submit a “Records
Disposal Certificate” 60 days before destroying documents pursuant
to its previously approved schedule).
The CCSAO submitted a
proposed records-retention schedule to the Commission for approval
(See Application for Authority to Dispose of Local
Records No. 99:25C, dated Oct. 12, 1999, at 1.)
approved the application, which authorizes the CCSAO to destroy
“misdemeanor files” one month after the final court hearing.
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On January 17, 2013, the CCSAO notified the Local Records
Commission in a “Records Disposal Certificate” that it intended to
destroy a large number of documents on or after March 8, 2013.
(See Records Disposal Certificate, dated Jan. 17, 2013, at 1.) The
Certificate listed 42 categories of documents, and the date-range
and volume (measured in cubic feet) for each category.
list included misdemeanor case files — five cubic feet, total —
from 2000 to 2010.
(Id. at 2.)
The plaintiffs argued that these documents demonstrated that
Martinez’s case file still existed, (see Trans. of Hearing, dated
Jan. 30, 2013, at 3, 9), or else that the CCSAO’s practice of
“immediately” destroying misdemeanor case files violated the terms
of its approved records-retention schedule.
(See id. at 9.)
also argued that the files for the prosecutions that terminated in
2009 must be among the misdemeanor files that the CCSAO intended to
(See id. at 4.)
First, we concluded that ASA Fallon had
accurately described the CCSAO’s document-destruction practice, and
that Daniel Martinez’s 2013 misdemeanor file had been destroyed
pursuant that practice.
(See id. at 10; see also id. at 12 (“Now
I want to make it very clear that I am not finding any fault with
the State’s Attorney’s Office here because no fault has been
Second, we held that it was beyond the scope of this
case whether the CCSAO’s practice complied with the recordsretention schedule that the Local Records Commission had approved.
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We did, however, order the CCSAO to preserve the relevant
misdemeanor files from 2009 and 2013 to the extent that they still
(See id. at 11; Minute Entry, dated Jan. 30, 2013, Dkt.
Plaintiffs’ February 11, 2013 Subpoenas
On February 6, 2013, ASA Fallon told Mr. Kosoglad again that
the CCSAO did not have any files responsive to the plaintiffs’
January 28, 2013 subpoena.
(Letter from P. Fallon to J. Kosoglad,
dated Feb. 6, 2013, attached as Ex. 8 to Pls.’ Mot. (“As I stated,
the State’s Attorney’s Office does not routinely maintain files
dissatisfied with the CCSAO’s response and, on February 11, 2013,
served new subpoenas seeking: (1) to depose the three ASAs involved
in Daniel Martinez’s 2012 prosecution; (2) to depose a CCSAO
representative about the office’s records-retention policies; and
(3) to inspect the misdemeanor files identified in the Records
ASA McClellan responded with a letter
objecting to the proposed discovery. (See Letter from M. McClellan
to J. Kosoglad, attached as Ex. 10 to Defs.’ Stmt., at 1-2.)
“Purchasing/Operations Director,” who purported to “have personal
knowledge as to the retention policy of the CCSAO.” Aff. of Robert
Ryan, attached as Ex. 11 to Pls.’ Mot., ¶ 3.)
Ryan stated that:
(1) “[t]he retention policy at CCSAO does not allow for any records
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to be maintained as it pertains to non-jury trial misdemeanor
files;” (2) “[t]he CCSAO does not maintain files of bench trials as
it pertains to misdemeanor cases.”
(See id. at ¶¶ 4-5 (emphasis
The plaintiffs moved to compel the CCSAO’s responses to their
subpoenas on February 24, 2013. The day before we were scheduled to
hear the motion, the CCSAO moved to quash the subpoenas.
attached Ryan’s affidavit to the motion and
position that it “does not maintain non-jury misdemeanor case
(See CCSAO’s Mot. to Quash, dated Feb. 27, 2013, Dkt.
123, at 2.)
We granted the plaintiffs’ motion to compel, and
denied the CCSAO’s motion to quash.
(See Trans. of Hearing dated
Feb. 28, 2013, Dkt. 133, at 6 (“I think that we have to make a
record here that will stand up on appeal, if one side or the other
appeals, and I have received representations of counsel which I am
sure are made in good faith. I don’t question that at all.”).)
Pursuant to our order, the plaintiffs deposed the three ASAs
plaintiffs state that the ASAs did not remember any statements that
the officers may have had made to them about this case, and could
not recall whether they had written any notes on their file.
Pls.’ Mot. at 7.)
On March 25, 2013, the CCSAO gave the plaintiffs
two boxes of documents purporting to be the misdemeanor case files
identified in the Records Disposal Certificate.
states that the records consist of files from 2000-2010.
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boxes that the CCSAO gave to the plaintiffs contained files from
They did not contain any information relevant to the
plaintiffs’ prosecutions, which terminated in 2009.
2001, the boxes appeared to be incomplete.
Even as to
According to the
plaintiffs, the boxes contained misdemeanor files from: (1) August
2001 for defendants with last names beginning with G-M; and (2)
October 2001 for defendants with last names beginning A-G.
Pls.’ Reply at 3.)
The plaintiffs also contend, “on information
and belief,” that the boxes contained files related to cases
“concluded by bench trial, jury trial, and plea,” contrary to the
(Pls.’ Mot. at 7.)
Plaintiffs’ March 25, 2013 Subpoena
On March 25, 2013, the plaintiffs subpoenaed all misdemeanor
case files “in the manner and form usually retained.”
Subpoena to Produce Docs., dated Mar. 25, 2013, attached as Ex. 1
to CCSAO’s Mot. to Quash, Dkt. 134, at 1.)
In its motion to quash
this subpoena, the CCSAO continued to claim that it does not retain
files for non-jury misdemeanors. (See CCSAO’s Mot. to Quash at 3.)
It further stated that the materials that the plaintiffs’ sought —
all misdemeanor case files — filled 180 banker’s boxes.
CCSAO’s Mot. for Protective Order, dated Mar. 28, 2013, Dkt. 134,
It asked us to modify the subpoena to limit its scope to
2009, only (31 boxes, total).
(Id. at 5.)
At the hearing on the
CCSAO’s motion, ASA McClellan stated that the materials in the 180
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boxes all related to misdemeanor cases tried to a jury.
Trans. of Proceedings, dated Apr. 3, 2013, attached as Ex. 15 to
Pls.’ Mot., at 2 (“The Court: So the boxes are all jury trials.
Ms. McClellan: That is correct, Your Honor.”).)
As the court
documents from 2001 — and not 31 boxes from the relevant year —
because the Records Disposal Certificate stated that the files from
2000-2010 amounted to only five cubic feet.
(See id. at 3, 5; see
also CCSAO’s Resp. at 9 (“On March 25, 2013, Plaintiffs’ Counsel
inspected the 5 cubic feet of misdemeanor case files that the SAO
was permitted to destroy as of March 8, 2013 according to the
Records Disposal Certificate filed on January 17, 2013.”))
CCSAO has not explained why it chose to produce those particular
As for the presence of non-jury files in those boxes, Mr.
Kosoglad suggested a theory:
The Court: These are bench trials?
Mr. Kosoglad: Well, another problem is that they seem to
be playing word games here by calling things jury trials
and nonjury trials, because the two boxes that we
inspected from 2001 contained files from the jury room.
Now, in the jury room, some cases go to jury trials and
some cases are bench trials. A lot of times in the jury
room, defendants waive their rights to a jury trial at
the last minute.
This case was in the jury room, and the defendants waived
their right to a jury trial at the last minute. So it
should be within these files . . . . We believe that
it’s possible that it was simply misfiled by the state’s
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(Trans. of Proceedings, dated Apr. 3, 2013, at 4.)
He asked the
court for permission to inspect all 180 boxes in case the CCSAO had
misfiled the documents. ASA McClellan objected that “the amount of
resources it’s going to take to pull 180 boxes and have them
available to counsel is extraordinary.”
(Id. at 11.)
In light of
counsel’s representation, the court authorized the plaintiffs to
At a mutually-convenient date between today and April 10,
2013, plaintiffs’ counsel shall be permitted to visit the
warehouse where the 180 boxes of misdemeanor files are
maintained and determine what would be involved in
segregating the boxes for his inspection. Plaintiffs'
counsel is authorized to ask questions of the warehouse
personnel in order to determine the difficulty of
segregating the boxes. This inspection is subject to the
protective order previously entered in this case.
(Minute Entry, dated April 3, 2013, Dkt. 136.)
reported at the next status hearing that the records custodian
present at the inspection told him that “the bench trial file
should exist and that it ought to be in that room, and that they
were unable to locate it.”
2013, Dkt. 148, at 4.)
(Trans. of Hearing, dated Apr. 17,
Mr. Kosoglad estimated that he and his
staff could inspect the relevant boxes themselves in only an hour
They simply needed to open the boxes and quickly
scan the folders for the relevant files.
(Id.) McClellan insisted
representation, he would necessarily see sensitive information from
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unrelated cases; and repeatedly interrupted the court to interpose
argumentative objections. (See, e.g., id. at 9-10; see also id. at
12 (“Ms. McClellan: Do you suggest that I have someone — The Court:
No, no. Ms. McClellan: — from every courtroom be available to
answer questions?”); id. at 13 (ASA McClellan, addressing the
court: “So that’s a yes?”).)
The court overruled ASA McClellan’s
objections and authorized plaintiffs’ counsel to inspect the boxes.
(See Minute Entry, dated Apr. 17, 2013, Dkt. 137.)
The April 23, 2013 Inspection
ASA McClellan was present when Mr. Kosoglad and his staff
inspected the file room at 555 W. Harrison on April 23, 2013.
Kosoglad states that she directed his staff not to take notes, and
insisted that they could not do the inspection in the file room
(See Pls.’ Mot. at 9.)
ASA McClellan called the court for
a ruling on the location of the inspection; the court ruled that
Mr. Kosoglad and his staff could review the documents in the file
Mr. Kosoglad states that he and his staff located the
misdemeanor files for plaintiffs’ 2008/2009 prosecutions in “about
(See Pls.’ Mot. at 9.)
terminated in February 2010.
They found them in two
(Id. at 9.)
In one box, the records
were “stuffed into the side of the box” or else “found loose
between other case files.”
(Id. at 9-10.)
In the other box, “the
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papers were scattered across the top of the other files.”
The CCSAO’s Document Production
On April 25, 2013 and May 3, 2013, the CCSAO produced to
plaintiffs’ counsel approximately 1,000 documents from the CCSAO’s
files, and withheld others on privilege grounds.
(See Letter from
M. McClellan to J. Kosoglad, dated Apr. 25, 2013, attached as Ex.
discoverable documents in the file.”); Pls.’ Mot. at 10; CCSAO’s
“Status on Subpoenas,” dated May 3, 2014, Dkt. 141 (attaching a
privilege log and asking the court to “find full compliance with
all the subpoenas as it pertains to the case at bar”).)
On May 13,
2013, the plaintiffs moved to compel the CCSAO to produce the
documents that it had withheld.
May 13, 2013, Dkt. 144.)
(See Pls.’ Mot. to Compel, dated
The CCSAO responded by withdrawing its
privilege claim on May 24, 2013.
(See Letter from M. McClellan to
J. Kosoglad, dated May 24, 2013, Dkt. 151.)
It designated all of
the previously withheld documents “confidential” pursuant to the
protective order that the court had previously entered.
Two days before producing the documents, ASA McClellan sent an email
to Carolyn Hoesly, the court’s courtroom deputy, claiming that the court’s April
3, 2013 minute order erroneously stated that the court had entered and continued
the CCSAO’s motion for a protective order. (See Email from M. McClellan to C.
Hoesly, dated May 22, 2013, attached as Ex. 20 to Pls.’ Mot.) She insisted that
the court had granted that portion of its motion. (Id.) Ms. Hoesly clarified
that the “protective order” that the court mentioned during the April 3, 2013
hearing was the protective order that the court entered in May 2012, and not the
proposed order that CCSAO had attached to its motion. (See Email from C. Hoesly
to M. McClellan, dated May 22, 2013, attached as Ex. 21 to Pls.’ Mot.) ASA
McClellan’s interpretation of the hearing transcript was strained, and she should
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The plaintiffs challenged that designation and served a subpoena on
the CCSAO to inspect the original file.
(See Email from J.
Kosoglad to M. McClellan, dated May 28, 2013, attached as Ex. 22 to
Pls.’ Mot. (“Through this notice, we plan to make better copies of
the records you provided us, understand how the note fit in with
the file, and gain an understanding of how the records and notes
were organized when they were discovered during the file room
inspection.”).) ASA McClellan refused to allow Kosoglad to inspect
and copy the documents at his own office.
(See Email String
between J. Kosoglad and M. McClellan, dated June 5, 2013, attached
as Ex. 27 to Pls.’ Mot.)
At a hearing on July 10, 2013, the court
ordered the CCSAO to allow Kosoglad and his staff to inspect the
documents in Kosoglad’s own office and without any CCSAO official
THE COURT: In the circumstances of this case where the
State’s Attorney's Office repeatedly assured me that the
file did not exist, I think that what we think of as the
usual procedures simply don’t apply. The examination
shall be conducted without the presence of any
representative of the State’s Attorney's Office. The
Court has confidence that no alteration of the file will
occur during the examination. Now, do we need to provide
for how the file is to be delivered or can you figure
that out by yourselves?
MS. MCCLELLAN: At this point, what difference does
not have sent an e-mail to court
other hand, the CCSAO’s proposed
order that the court executed in
Proposed Confi. Order, attached as
Dkt. 134-3, with Protective Order,
have not persuaded the court that
attempt to gain some advantage in
staff to resolve a contested issue. On the
“confidentiality order,” and the protective
2012, are substantially similar.
Ex. 3 to CCSAO’s Mot. for a Protective Order,
dated May 10, 2012, Dkt. 99.) The plaintiffs
ASA McClellan sent the e-mail in a bad-faith
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THE COURT: You think you can do that —
MS. MCCLELLAN: The integrity is gone, anyway, so
it — what difference does it make? Someone will deliver
it or he can pick it up.
THE COURT: All right. Maybe you can agree on that.
(See Trans. of Hearing, dated July 10, 2013, Dkt. 162, at 14;
Minute Entry, Dkt. 157.) Plaintiffs’ counsel reviewed the original
file on July 26, 2013 and discovered one page of notes that had not
been previously produced.
(See Pls.’ Mot. at 11-12.)
The plaintiffs seek sanctions against the CCSAO’s attorneys
pursuant to 28 U.S.C. § 1927 and this court’s inherent power to
They also seek sanctions against the CCSAO
Pursuant to 28 U.S.C. § 1927, this court has discretion to
sanction a party’s attorneys for “unreasonably and vexatiously”
Any attorney or other person admitted to conduct cases in
any court of the United States or any Territory thereof
who so multiplies the proceedings in any case
unreasonably and vexatiously may be required by the court
to satisfy personally the excess costs, expenses, and
attorneys’ fees reasonably incurred because of such
28 U.S.C. § 1927.
“Sanctions against counsel under 28 U.S.C. §
1927 are appropriate when ‘counsel acted recklessly, counsel raised
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baseless claims despite notice of the frivolous nature of these
claims, or counsel otherwise showed indifference to statutes,
rules, or court orders.’” Grochocinski v. Mayer Brown Rowe & Maw,
LLP, 719 F.3d 785, 799 (7th Cir. 2013) (quoting Kotsilieris v.
Chalmers, 966 F.2d 1181, 1184–85 (7th Cir. 1992)).
This court has inherent power to impose sanctions on parties
and their counsel.
See id. (“The federal courts have the inherent
power to impose a wide range of sanctions upon parties for abusive
litigation.”). “This inherent power, however, is limited to ‘cases
in which a litigant has engaged in bad-faith conduct or willful
disobedience of a court’s orders.’”
Id. (quoting Chambers v.
NASCO, Inc., 501 U.S. 32, 47 (1991)).
“There is no single litmus
test for determining what constitutes bad faith, though more than
mere negligence is required.” Id.
ASA Patricia Fallon
The court concludes that the plaintiffs are not entitled to
sanctions against ASA Fallon.
On January 29, 2013, Fallon told
plaintiffs’ counsel that the CCSAO’s file for Daniel Martinez’s
2012-13 prosecution “was destroyed immediately upon conclusion of
the case” pursuant to the CCSAO’s standing practice and/or policy.
(Pls.’ Mot. at 3-4.)
As far as the record reveals, Fallon was
entirely candid with counsel and the court. The fact that the
CCSAO’s procedure does not comply with the Local Records Act is
beyond the scope of any claim against Fallon in this case.
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did state that the CCSAO preserves misdemeanor files in “special”
(See Trans. of Hearing, dated Jan. 30, 2013, at 7 (“What
I’m told is certain misdemeanors are kept. I believe misdemeanor
DUIs might be kept for a period of time based on the nature of the
case, and any other special case that the individual ASA determines
they need to retain a file. But a matter of this nature that is
more routine would be sent for shredding the same day.”); Letter
from P. Fallon to J. Kosoglad, dated Feb. 6, 2013, at 1 (“As I
stated, the State’s Attorney’s Office does not routinely maintain
files related to misdemeanor offenses.”) (emphasis added).) The
court later learned that Fallon had oversimplified the CCSAO’s
It is important to bear in mind, however, that
Fallon’s participation in the case — at least so far as the record
prosecution in 2012.
She accurately reported that the ASA’s
responsible for that prosecution had destroyed the documents, and
she was appropriately circumspect about the CCSAO’s policies more
(See Trans. Of Hearing, dated Jan. 30, 2013, at 5-7
(acknowledging that she was unaware of the Local Records Act and
reiterating that knowledgeable CCSAO employees told her that the
records the plaintiffs sought regarding Daniel Martinez’s trial had
She did notify Mr. Kosoglad on March 6, 2013
that the CCSAO was “working to obtain any and all ‘Misdemeanor case
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destruction on March 8, 2013.”
(See Letter from P. Fallon to J.
Kosoglad, dated Mar. 6, 2013, attached as Ex. 29. to Pls.’ Mot.)
But there is no evidence indicating whether, or to what extent,
Fallon was personally involved in the decision to produce two boxes
of misdemeanor files from 2001 in response to the court’s order.
On this record, the court finds that Fallon’s conduct does not
warrant sanctions under § 1927.
The court likewise declines to
exercise its inherent authority to sanction her.
III. ASA McClellan
The court finds that ASA McClellan recklessly adhered to the
position that the documents the plaintiffs sought did not exist.
As the court just noted, the CCSAO initially took the position
that, except for a few “special” cases, it destroys all misdemeanor
case files immediately after trial.
(See Trans. of Hearing, dated
distinction between “jury” and “non-jury” misdemeanors in February
The fact that McClellan did not acknowledge that the CCSAO
had changed its position created unnecessary confusion.
other hand, at that point in the proceedings, it appears that both
McClellan and Fallon were in the dark about the CCSAO’s actual
Robert Ryan purported to have personal knowledge of the
CCSAO’s records-retention policies and declared that the CCSAO did
not maintain records for misdemeanors adjudicated by bench trials.
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statement was inaccurate.
First, Kosoglad identified files from
misdemeanor bench trials in the “jury room” materials that the
CCSAO produced from 2001.
Those materials were incomplete and not
from the relevant time period, prompting the plaintiffs to subpoena
all misdemeanor files.
In response to that subpoena, the CCSAO
misdemeanor files from the relevant year (2009), and 180 boxes of
misdemeanor files, total.
McClellan confidently stated at the
April 3, 2013 hearing on the CCSAO’s motion to quash that these
boxes did not contain materials for misdemeanor offenses concluded
by bench trials. The most generous inference that we can draw from
McClellan’s statement is that she did not speak with the custodian
of those boxes before making this statement. If she had, she would
have learned that they contained materials from misdemeanor bench
(See Trans. of Hearing, dated Apr. 17, 2013, Dkt. 148, at
This is reckless conduct.
She also recklessly overstated the
amount of time and resources it would take to inspect the files,
leading the court to order an unnecessary intermediate step to
determine whether the plaintiffs’ proposed inspection was feasible.
(Trans. of Proceedings, dated Apr. 3, 2013, at 11 (“[T]he amount of
resources it’s going to take to pull 180 boxes and have them
available to counsel is extraordinary.”).)
When Kosoglad reported
inspection in an hour or two, McClellan insisted that it could not
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be done in that amount of time and raised other argumentative
(See Trans. of Hearing, dated Apr. 17, 2013, at 9-10,
She continued to obstruct discovery at the inspection
The court overruled McClellan’s objections and,
consistent with Mr. Kosoglad’s estimate, he and his colleagues
found the documents within a matter of minutes.
The CCSAO produced 1,000 responsive documents in April and May
2013, contrary to McClellan’s assurances that the documents the
plaintiffs sought did not exist. McClellan asserted a questionable
privilege claim with respect to a subset of the relevant documents,
Given the history of the case to that point, the
plaintiffs’ subpoena seeking to inspect the original file was
Nevertheless, McClellan continued to raise
bogus objections, which the court overruled.
finally received all the documents that they were seeking on July
26, 2013, mercifully ending the CCSAO’s participation in this case.
In sum, we conclude that McClellan’s conduct was reckless and
undertaken in bad faith.
There is insufficient evidence in the record to support a
finding that the CCSAO’s response to the plaintiffs’ April 2012
subpoena was deficient.
It is a somewhat closer case whether the
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CCSAO acted in bad faith when it destroyed the materials associated
with Daniel Martinez’s 2012 criminal trial.
It is troubling that
the CCSAO does not adhere to its own 30-day document retention
policy in misdemeanor cases.
It is also troubling that the
prosecuting attorneys in Martinez’s 2012 trial apparently knew that
he was a plaintiff in a civil lawsuit filed against the arresting
On the other hand, Daniel Martinez’s case is not the
only one in which the CCSAO deviated from its approved retention
The CCSAO routinely destroys materials immediately after
misdemeanor bench trials at Branch 34.
The evidence in the record
is insufficient to conclude that the prosecuting attorneys acted in
bad faith when they deposited their file in the “Dispo” bin.
We conclude, however, that the CCSAO misstated its document
retention policy. First, someone at the CCSAO told ASA Fallon that
the office does not retain any misdemeanor files, except in
This statement was incomplete and misleading.
The CCSAO later took the position that it does not retain non-jury
This statement was simply false.
suggests that Mr. Kosoglad was somehow at fault for not suggesting
earlier that the documents may have been preserved in the “jury
room” (Branch 46).
(See CCSAO’s Resp. at 10.)
The court relies on
the CCSAO to make candid and complete statements concerning its own
It failed to do so, and needlessly prolonged discovery
in this lawsuit.
Also, the CCSAO has not offered any plausible
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explanation for its decision to produce two incomplete boxes from
2001 for counsel’s inspection.
The review would have been a
complete waste of counsel’s time if he had not discovered during
the course of the inspection that, in certain cases, the CCSAO
maintained records for misdemeanor cases tried before a judge.
Viewed as a whole, it is apparent that the CCSAO’s discovery
responses were not merely negligent.
The CCSAO can only act
through its agents, and McClellan was its agent for purposes of
responding to this discovery.
Her treatment of counsel, and her
in-court demeanor, speak volumes about the CCSAO’s strategy in this
The CCSAO divulged information about its policies only when
plaintiffs’ counsel confronted it with evidence contradicting its
prior statements. At each step of the process, McClellan attempted
to impose onerous restrictions on discovery.
To be clear, the
court does not fault the CCSAO for failing to locate misplaced
documents. It faults the CCSAO for obstructing the plaintiffs’ and
the court’s attempts to understand the true state of affairs.
sum, court concludes that the CCSAO acted vexatiously and in bad
The court concludes that the plaintiffs are entitled to excess
respondents’ misconduct during the time period February 24, 2013 to
July 26, 2013.
The court denies the plaintiffs’ request for
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discovery and an evidentiary hearing.
First, the plaintiffs
contend that the City of Chicago was responsible for misplacing the
plaintiffs’ misdemeanor files.
(See Pls.’ Supp. at 3.)
CCSAO witnesses could shed light on this issue, it is academic at
this point because the plaintiffs no longer seek relief from the
prosecution, the plaintiffs have already deposed the relevant
(See Pls.’ Mot. at 7.)
There is no reason to think that
decision to destroy documents from that case. Finally, the CCSAO’s
shifting positions regarding its document-retention policies, and
McClellan’s obstructive conduct, are already well documented.
further discovery on these issues would needlessly prolong this
Finally, the court denies the plaintiffs’ request to
“confidential” pursuant to the protective order in this case.
(See Mot. to Declassify, Dkt. 160; Minute Entry, dated Mar. 5,
2014, Dkt. 213 (noting that the plaintiffs had withdrawn the motion
given the court’s intention to address the issue together with the
Neither party has given the court copies of
the relevant documents to determine whether, or to what extent, the
documents are entitled to protection.
Moreover, it is highly
unlikely that declassifying the documents at this point in the case
would serve any practical purpose.
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The plaintiffs’ motion for sanctions is granted in part and
denied in part.
The court denies the motion as to ASA Patricia
evidentiary hearing, and denies plaintiffs’ request to declassify
The court grants the motion for sanctions as to ASA
Mary McClellan and the CCSAO. By December 19, 2014, the plaintiffs
shall file a memorandum, supported by time records, indicating what
fees and costs it attributes to the respondents’ sanctionable
misconduct during the period from February 24, 2013 to July 26,
2013. ASA McClellan and the CCSAO shall respond to the plaintiffs’
submission by January 19, 2015.
The plaintiffs may reply by
February 2, 2015.
November 20, 2014
John F. Grady, United States District Judge
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