Fields v. City of Chicago et al

Filing 356

MEMORANDUM OPINION AND ORDER signed by the Honorable Matthew F. Kennelly on 4/27/2013: Plaintiff's motion for sanctions 347 is granted in part and denied in part as stated in the accompanying Memorandum Opinion and Order. The case remains set for a status hearing on 5/1/2013 at 9:30 a.m. (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 filed a motion in which he seeks to take the
depositions of persons in the Chicago Police Department’s Office of Legal Affairs (OLA);
an order to preserve certain files and file cabinets now located in a particular room at
the Chicago police station at 51st Street and Wentworth Avenue; and an inventory of
those files.
Fields was originally convicted of murder in state court but ultimately was
acquitted. As part of his claims in this case, Fields contends that certain exculpatory
police investigative material was withheld from him during his prosecution. This
material was produced during discovery in the present civil case. Immediately prior to
its production, the material was located in one of the aforementioned file cabinets.
Plaintiff has engaged in an intensive effort to ascertain where the material was located
in the intervening years and how it came to be located in the file cabinets. Defendants,
through their attorneys, have professed complete ignorance on these points.

As part of plaintiff’s investigative efforts during the discovery process in this case,
his attorneys took the deposition of Lieutenant Fred Melean, who is currently in charge
of investigations for the Chicago Police Department’s Internal Affairs Division but
previously held various positions of responsibility in the Records Inquiry Section, which
deals with subpoenas for Police Department records. During Fields’ prosecution in
state court, he requested, evidently via subpoena, all records relating to the murder
investigation (and other records), but as indicated earlier certain records that he
contends were exculpatory were not produced. The Police Department personnel who
dealt with such subpoenas were in the Records Inquiry Section.
During his deposition, Lt. Melean testified that when a subpoena for records
came in, the Police Department representative responsible for collecting records would
first “find out from the Detective Division whether [the investigation] was closed or
open.” Melean Dep. 19. If the investigation was open, then “[t]he process would be to
contact Legal Affairs,” namely OLA, “[t]o see what can and cannot go out. To see what
documents can be released.” Id. 19-20. The reason for this is that “[o]pen
investigations aren’t subject to a subpoena,” because “[t]hey’re still be worked on, so it
wouldn’t be a complete file.” Id. 20. There is evidence indicating that at the relevant
time, the murder investigation involving Fields was considered “open,” though it is not at
all clear why. Melean lacked actual knowledge regarding whether subpoenas issued by
Fields’ defense counsel were routed through OLA in this manner, and if so, who at OLA
dealt with them and what they advised.
Fields’ counsel characterize the Records Inquiry Section’s practice as described
by Lt. Melean as “a secret policy [of the City] of withholding files for cases it considered

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‘open,’” and they say that “it is now clear why [Fields’] file was withheld all of these
years.” Fields Mot. (dkt. no. 347) at 9. In their reply, Fields’ counsel go a step further,
calling it a “fact” that “the CPD has been disregarding such subpoenas without providing
any notice of this policy to criminal defendants and other parties.” Fields Reply (dkt. no.
354) at 1. And having inspected, with the Court’s approval, the other files in the
aforementioned file cabinets, Fields’ counsel contend in their reply that the file cabinets
contain numerous investigative files “that were never tendered in litigation” regarding
the crimes those files concerned, which counsel characterize as a “travesty” and a
“potential nightmare in regards to individuals who are sitting in prison – or have sat in
prison – and who never received the underlying investigatory files, or notice that the
files were being withheld . . . .” Id. at 10, 12.
These characterizations are a considerable overstatement of the record that has
been presented to the Court. Lt. Melean’s testimony does not establish that
investigative files in cases considered as open by the Police Department were withheld
from production in the criminal cases to which the files pertained. Rather, his testimony
establishes that when an investigation was considered open, Records Inquiry Section
personnel requested advice from OLA regarding what to do. There is no evidence in
the record establishing that when this happened, OLA’s practice was to cause
documents to be withheld from production. Certainly nothing of the kind comes from
Melean’s testimony. Indeed, Melean could recall only one occasion when he himself
dealt with a subpoena that concerned an “open” investigation.
The Court also cannot say at this point that, as Fields’ counsel contend, the
practice about which Melean testified explains why certain materials were not produced

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to Fields’ criminal defense counsel. That is certainly one possible inference, given the
evidence that the murder investigation was considered open and the evidence that not
all of the records were produced. It is not, however, the only possible inference. As
defendants point out, some of the materials in the file that contained the document
belatedly produced materials actually were produced in Fields’ criminal case. This
means that it is at least arguable that the practice about which Melean has testified had
nothing to do with the incomplete production of investigative materials to Fields’ criminal
defense counsel.
On the other hand, it is also an overstatement to contend, as counsel for the City
do, that the fact that some materials contained in the file in question were produced in
Fields’ criminal case “derail[ ] plaintiff’s motion.” Def. City’s Rep. (dkt. no. 353) at 3.
Another possibility that is consistent with the record before the Court is that the
materials that were produced did not come from that particular file but rather were
copies of the same documents stored in other locations. Yet another possibility that the
Court cannot rule out, based on the record that has been presented, is that OLA
authorized the production of some but not all of the materials in the file. Although these
hypotheses are speculative to some extent, they would be consistent with the record
that has been presented to the Court. Thus the fact that some materials were produced
does not indicate that the Court should treat the subject as closed and disallow the
further discovery that Fields has proposed.
Because there is evidence that (1) some investigative materials were not
produced to Fields’ criminal defense counsel; (2) the file in the homicide case was
considered open at the relevant time; and (3) the Police Department treated criminal-

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case subpoenas concerning open investigations as requiring further review by OLA, it is
appropriate to permit Fields to conduct further discovery regarding this issue. This
discovery may include depositions of relevant personnel who worked at OLA during the
relevant period(s). The Court advises Fields’ counsel, however, that it is not giving
them carte blanche in this regard. First, any OLA-related discovery must be focused on
that office’s activities and practices in responding to subpoenas to the Police
Department in criminal matters where the underlying investigation is characterized as
open, and on any involvement that OLA had in dealing with requests made by Fields’
criminal defense counsel in particular. Second, the Court does not intend to permit
Fields’ counsel to blanket OLA with deposition notices or subpoenas. Any deposition
must be a Rule 30(b)(6) deposition notice tightly focused on the relevant issues as just
described or must be a deposition notice directed to an individual whom Fields’ counsel
has a reasonable and legitimate basis to believe has knowledge regarding the relevant
issues. Finally, these depositions will be limited in time. Given the narrow focus, one
hour should be plenty. No deposition involving these topics may exceed that length
absent agreement of the parties or order by the Court. Fields is directed to confer
promptly with defense counsel regarding a discovery plan concerning these points, and
the parties are to be prepared to present a proposed plan to the Court at the status
hearing set for May 1, 2013.
Fields also requests preservation (in their current form and location) of the file
cabinets and their contents currently located in the same physical location at 51st and
Wentworth as the cabinet that contained the file directly at issue in this case, as well as
an order directing an inventory of the victim names and file numbers, to be made public.

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The Court does not address the propriety of latter request at this point. That request is
premature given the absence from the current record of any clear indication that the
practice of seeking OLA advice described by Lt. Melean was, as Fields’ counsel
contends, part of a practice of actually withholding materials from production in criminal
cases. If Fields obtains such evidence during the course of the discovery described
above, he may seek such relief at that point.
The Court likewise declines to formally order that the files be, as Fields
effectively requests, hermetically sealed. That said, the Court notes that these files
have been requested by Fields, and they ultimately may be subject to production in this
case, to enable Fields to prove the contours of the policy he now alleges. Thus if
nothing else, the law of spoliation ought to make the City or the Police Department think
long and hard about altering or moving the files or the file cabinets. It would be
extraordinarily unwise for the City or the Police Department to alter or move the files or
file cabinets or to permit any individual to do so, without first seeking the Court’s
guidance.

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MATTHEW F. KENNELLY
United States District Judge
Date: April 27, 2013

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