Fields v. City of Chicago et al

Filing 292

MEMORANDUM OPINION AND ORDER signed by the Honorable Matthew F. Kennelly on 10/15/12: The Court grants plaintiff's motion and renewed motion for rule to show cause in part. Defendant City of Chicago is directed to provide a complete response t o Interrogatories 4 and 5 as described in this decision by October 23, 2012. Plaintiff's request to take the depositions of attorney Noland and paralegal Majka remains under advisement pending consideration of the City's response to these interrogatories. Plaintiff is directed to submit a statement of his reasonable attorneys fees and expenses as described in this decision by October 23, 2012, and the City is directed to respond by no later than October 30, 2012. (mk)

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

NATHSON FIELDS,
Plaintiff,
vs.
CITY OF CHICAGO, et al.,
Defendants.

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Case No. 10 C 1168

MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY, District Judge:
Plaintiff Nathson Fields has moved for an order to show cause why defendant
City of Chicago should not be held in contempt or otherwise sanctioned for its failure to
provide proper answers to certain interrogatories that Fields served and for other
actions relating to the subject of those interrogatories.
Fields alleges in this case that the defendants wrongfully caused him to be
prosecuted for murder and in doing so violated his constitutional rights. During the
course of discovery, specifically in September 2011, the City produced about ninety
pages of documents concerning the investigation of the underlying crimes. Fields says
these documents were never produced during his criminal prosecution.
Fields served two interrogatories that sought further information regarding these
documents. 1 These interrogatories (numbers 4 and 5) asked for the whereabouts of the

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The interrogatories also sought similar information regarding other investigative
documents. The present dispute, however, focuses on the ninety pages or so that were
produced in September 2011.

documents from 1984, when the murders occurred, to September 2011, and who had
custody of the documents. In response, the City objected to the interrogatories on
various grounds, provided a laundry list of persons who handled documents relating to
the murders, and identified the current location of the originals. Fields moved to compel
a more complete response, and in April 2012, the Court ordered the City to answer the
interrogatories fully. See Dkt. No. 214 (order of Apr. 10, 2012).
In the City’s amended responses, it again objected to the interrogatories; again
identified the current location of the originals; and stated that it was “unable to
determine the chronological chain of custody at this time . . . .” Around the same time,
the City also responded to two follow-up interrogatories that Fields had served. One of
these (interrogatory 7) asked why the documents produced in September 2011 had not
been produced to Fields during his criminal prosecution. The City objected that the
interrogatory “assume[d] facts not in evidence” and called for speculation but also
responded that it lacked sufficient information to state whether the documents had been
provided to Fields before 2011.
Each of the City’s answers to the pertinent interrogatories was verified for the
City by Sergeant Robert Flores of the police department’s office of legal affairs. Flores’
verification stated that certain of the matters in the interrogatories were not within his
personal knowledge; there was no employee of the City who had personal knowledge of
everything required to provide answers; and the answers were based on information
“assembled by authorized employees and counsel of the City of Chicago.”
Fields then took Flores’ deposition to learn the information on which he had relied
in answering the pertinent interrogatories. Flores testified that he had not performed

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any investigation to establish the chain of custody of the files in question but instead
had relied entirely on conversations he had with Daniel Noland, an attorney for the City,
and a City paralegal, Mary Beth Majka. Noland, who appeared at the deposition,
directed Flores not to answer questions about the information he and Majka had
provided to Flores, citing the attorney-client and work product privileges.
Fields then moved for an order to show cause and for sanctions. In the motion,
Fields’ counsel stated that Noland had advised her that “he had himself taken on the
personal responsibility of trying to track the whereabouts of the missing street file over
the past 28 years.” In the motion, Fields sought leave to take the depositions of Noland
and Majka regarding the chain of custody of the documents and how they had been
located, as well as an order barring them from asserting the attorney-client or work
product privileges. Fields also sought further sanctions, including payment of his
attorney’s fees and costs for the Flores deposition.
At the hearing on Fields’ motion, the Court suggested that counsel attempt to
work out a stipulation regarding the chain of custody of the pertinent documents and
deferred ruling on the motion pending such efforts. Following discussions between the
two sides, Fields’ attorney sent the City’s attorney a proposed chain of custody
stipulation. The stipulation went through multiple drafts. The City proposed additions,
not directly related to the documents produced in September 2011, that made it
unacceptable to Fields. Fields then renewed his motion to show cause.
There is no question that the information Fields sought via the interrogatories and
seeks via the proposed depositions is relevant. Specifically, Fields has shown
(sufficiently for present purposes) that the documents whose chain of custody he is

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seeking to discover were relevant and perhaps exculpatory in connection with the
underlying criminal prosecution, and that they were not produced in connection with the
criminal case. This makes the documents likewise relevant in the present civil case.
Fields has also made a sufficient showing that the whereabouts of this information and
who had custody of it is relevant – indeed, highly relevant, given Fields’ allegation that
his constitutional rights were violated in connection with the criminal prosecution due, in
part, to the nondisclosure of this and other information.
The City contends that the information Fields seeks is privileged. The burden of
establishing the applicability of a privilege lies with the party claiming the privilege. See
Shaffer v. Amer. Med. Ass’n, 662 F.3d 439, 446 (7th Cir. 2011); Smithkline Beecham
Corp. v. Apotex Corp., 193 F.R.D. 530, 534, 539 (N.D. Ill. 2000). “The mere assertion
of a privilege is not enough; instead, a party that seeks to invoke the attorney-client
privilege has the burden of establishing all of its essential elements.” United States v.
BDO Seidman, 337 F.3d 802, 811 (7th Cir. 2003).
The City claimed in its written objections to the interrogatories that they sought
information protected by the attorney-client privilege. The record reflects that this
objection was baseless. In responding to Fields’ motion, the City does not argue, and it
certainly has made no effort to show, that the information Fields seeks is protected by
that particular privilege. The Court therefore strikes that objection and will impose an
appropriate sanction for the City’s interposition of a baseless objection. See Fed. R.
Civ. P. 26(b)(5)(A) (requiring a party claiming privilege in response to a discovery
request to set forth the basis for its claim); 26(g)(3) (authorizing imposition of sanctions
for unjustified discovery response); 37(a)(4) (evasive discovery response is treated as a

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failure to disclose or respond); 37(a)(5) (court granting motion compelling discovery may
impose payment of expenses unless nondisclosure or response was substantially
justified).
The City contends that the information Fields seeks is protected by the work
product doctrine because its attorney Noland gathered the information, presumably
together with paralegal Majka. The Court doubts whether a party can shield relevant
evidence (in this case, where and by whom undisclosed information significant to the
underlying criminal case was kept) by having its attorney collect that evidence. But
assuming for present purposes that Noland’s efforts and the information he gathered
are covered by the work product doctrine, that privilege is not absolute. Federal Rule of
Civil Procedure 26(b)(3) provides that work product is discoverable if it is relevant and
the party seeking discovery “shows that it has substantial need for the materials to
prepare its case and cannot, without undue hardship, obtain their substantial equivalent
by other means.” Fed. R. Civ. P. 26(b)(3)(A)(ii).
Fields has made the necessary showing; the question is not close. He attempted
to obtain the information by interrogatory, and the City responded by objecting. Even
after the Court ordered the City to answer, it repeated its objections, including the
baseless attorney-client privilege objection and an objection that providing the
information would be unduly burdensome. Fields then took the deposition of Sergeant
Flores, whom the City presented for deposition on these particular points knowing full
well that it would interpose a privilege objection when Fields’ counsel predictably asked
for the sources of the information at issue. That made Flores useless as a source of
information on these points. Short of deposing everyone in the lengthy laundry list the

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City provided identifying the persons who had custody of investigative materials at some
point in time, there is no other way for Fields to obtain the information he seeks and
legitimately needs. Requiring Fields to take that course would be the very definition of
“undue hardship” (indeed, though not necessary to the Court’s determination of the
point, the City effectively admitted as much in its burdensomeness objections to the
interrogatories). Finally, though Rule 26(b)(3)(B) requires a court that orders production
of work product to “protect against disclosure of the mental impressions, conclusions,
opinions, or legal theories of a party’s attorney or other representative concerning the
litigation,” nothing of the kind is at issue here – and the City does not argue otherwise.
Fields’ proposed course is to take the depositions of Noland and Majka. The
deposition by one party of the other side’s attorney in the litigation (or, by extension, the
attorney’s paralegal) is disfavored and should be permitted only if there is no other
reasonable means to obtain relevant and significant information that the attorney
possesses. See, e.g., SEC v. Buntrock, 217 F.R.D. 441, 445 (N.D. Ill. 2003) (collecting
cases). Fields is close to that point but is not quite there, at least not yet. The Court
again directs the City to make a full and complete disclosure of the information that
Fields seeks in interrogatories 4 and 5 with regard to the documents in question
(identified as City-NF-001023 through 1117), without interposing any privilege or other
objection. The Court also cautions the City that it may not attempt to clutter its
response with extraneous information, such as the additional information in the
proposed stipulation that prompted Fields to decline to agree to it. The City must
provide its supplemental answer by no later than October 23, 2012. If that answer turns

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out to be complete and satisfactory, the Court likely will decline Fields’ request to take
the depositions of Noland and Majka.
The Court will also impose a monetary sanction covering Fields’ reasonable
attorney’s fees in connection with the following: the City’s continued failure to
completely answer the interrogatory with regard to the particular documents at issue
even after the Court ordered it to do so; its imposition of a baseless attorney-client
privilege objection; Fields’ renewal of the motion for rule to show cause; and the portion
of Sergeant Flores’ deposition relating to the pertinent interrogatory answers. Fields is
directed to submit a statement of his reasonable attorney’s fees and expenses for these
matters by no later than October 22, 2012, and the City is directed to respond by no
later than October 29, 2012.

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MATTHEW F. KENNELLY
United States District Judge
Date: October 15, 2012

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