Pace et al v. Timmermann's Ranch and Saddle Shop, Inc. et al

Filing 86

MEMORANDUM Opinion and Order: For the reasons stated in the accompanying Memorandum Opinion and Order, Plaintiff's Motion to Compel the State's Attorney of Lake County to produce his entire file in and for the criminal case in which Plaintiff Jeanne Pace was a defendant is denied. See Order for further details. Signed by the Honorable James B. Zagel on 3/28/2016. Mailed notice(ep, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
TIMMERMANN’S RANCH AND SADDLE
SHOP, INC.,
Plaintiff-Counterdefendant,
v.
JEANNE PACE,
Defendant-Counterplaintiff.
_____________________________________
JEANNE PACE, DAN PACE,

No. 11 C 1509
No. 13 C 818
Judge James B. Zagel

Plaintiffs,
v.
TIMMERMANN’S RANCH AND SADDLE
SHOP, INC., DALE TIMMERMANN,
CAROL TIMMERMANN, TAMMY
RIGSBY, DAWN MANLEY,
Defendants.
MEMORANDUM OPINION AND ORDER
Before the Court is Plaintiff’s Motion to Compel the State’s Attorney of Lake County,
Illinois to produce his entire file in and for the criminal case in which Plaintiff Jeanne Pace was a
defendant. For the following reasons, Plaintiff’s Motion is denied.
BACKGROUND
On or around February 15, 2011, Plaintiff Jeanne Pace (“Ms. Pace”), a former
employee of Timmermann’s Ranch and Saddle Shop (“Timmermann’s”), was arrested for the
theft of merchandise from Timmermann’s worth $100,000. She was subsequently prosecuted for
theft by the Lake County State’s Attorney (“SA”), and found not guilty in June 2015. She was

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not ultimately prosecuted for the offenses of forgery and unlawful use of a credit card. See
People v. Pace, 11 CF 494. Concurrently with the criminal action, Timmermann’s filed a civil
case against Ms. Pace in 2011, alleging conversion, breach of fiduciary duty, fraud, and unjust
enrichment. Ms. Pace answered and filed a counterclaim in 2011.
In February 2013, Ms. Pace and her husband and co-Plaintiff, Dan Pace, filed a
separate action against Defendants Timmermann’s Ranch and Saddle Shop, Inc., and four of its
employees, Dale Timmermann, Carol Timmermann, Tammy Rigsby (“Rigsby”), and Dawn
Manley (“Manley”) (collectively “the individual defendants”) for false imprisonment, abuse of
process, intentional infliction of emotional distress, conspiracy, in concert activity, aiding and
abetting, and loss of consortium. Plaintiffs claim that Defendants conspired to frame Ms. Pace by
providing false information about her to law enforcement. The 2011 and 2013 actions are
consolidated for purposes of discovery only.
On or around September 10, 2015, Plaintiffs served the SA with a subpoena duces
tecum for all files in or for the criminal case against Ms. Pace. The subpoena also requested the
depositions of the three Assistant SAs (“ASA”) who were involved in the investigation or
prosecution of Ms. Pace. In response to this subpoena, the SA produced most of his file for Ms.
Pace’s criminal case. For the remaining items of discovery—court minute sheets authored by
ASAs Mathews, Turk, and Brown; the trial memorandum authored by ASAs Mathews and Turk;
and a photo of their white board taken by ASAs Mathews and Turk—the SA invoked the quasijudicial officer privilege and the attorney work-product privilege. The SA also invoked the workproduct privilege for any testimony covering non-factual matters during the depositions of the
three ASAs. Ms. Pace now moves to compel the production of the withheld discovery.

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LEGAL STANDARD
Generally, parties can obtain discovery regarding any nonprivileged matter that is
relevant to any party’s claim or defense. Fed. R. Civ. P. 26(b)(1) (stating in part that, “for good
cause, the court may order discovery of any matter relevant to the subject matter involved in the
action.”). Requests for discovery are relevant if there is a reasonable possibility that the
information sought would lead to relevant material. However, the court must limit discovery if it
finds “the burden or expense of the proposed discovery outweighs its likely benefit.” Fed. R.
Civ. P. 26(b)(2)(C)(iii). Thus, motions to compel require the court to weigh the value of the
material sought against the burden of providing it. See Patterson v. Avery Dennison Corp., 281
F.3d 676, 681-82 (7th Cir. 2002).
“Rule 26(b)(3) distinguishes between ‘ordinary’ work product (also referred to as ‘fact’
work product) and ‘opinion’ work product. Fact work product consists of factual material and
opinion work product comprises the mental impressions, conclusions, opinions, or legal theories
of an attorney or a party’s representative.” United States ex. Rel. Yannacopolous v. Gen’l
Dynamics, 231 F.R.D. 387, 385 (N.D. Ill. 2005). “If the court orders discovery of those
materials, it must protect against disclosure of the mental impressions, conclusions, opinions, or
legal theories of a party’s attorney or other representative concerning the litigation.” Fed. R. Civ.
P. 26(b)(3)(B). Opinion work product “cannot be disclosed simply on a showing of substantial
need and inability to obtain the equivalent without undue hardship . . . [A] far stronger showing
of necessity and unavailability by other means . . . would be necessary to compel disclosure.”
Upjohn Co. v. United States, 449 U.S. 383, 401-02 (1981).

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DISCUSSION
I.

The Work Product Doctrine as Applied to Non-Parties
Plaintiffs argue that the SA’s Office cannot benefit from the protections under Rule

26(b) because the SA’s Office is not a party to this case. To support this claim, Plaintiffs cite to
two secondary sources (Wright, Miller, and Marcus’ Federal Practice and Procedure and
Moore’s Federal Practice) as well as cases in the Ninth Circuit, Eighth Circuit, and an Illinois
appellate court. However, while there is very little Seventh Circuit case law on the matter, what
cases there are contradict Plaintiffs’ argument. In Hobley v. Burge, for example, the Seventh
Circuit opined that the work-product privilege would be applicable to a hypothetical involving a
non-party law firm facing a subpoena duces tecum.1 433 F.3d 946, 494 (7th Cir. 2006). See also
Sandra T.E. v. South Berwyn School Dist. 100, 600 F.3d 612 (7th Cir. 2010) (applying the work
product privilege to a non-party law firm’s interview notes and legal memoranda prepared in
connection to the defendant’s pending litigation with the plaintiffs). Following this precedent, I
find that the SA is entitled as a non-party to invoke the work-product privilege.
Furthermore, the SA asserts that the three contested items of discovery detail and
discuss the ASAs’ mental impressions and strategies. Opinion work product is subject to further
protection under Rule 26(b)(3). “Codified at Rule 26(b)(3) of the Federal Rules of Civil
Procedure, the work-product doctrine is designed to serve dual purposes: (1) to protect an
attorney’s thought processes and mental impressions against disclosure; and (2) to limit the
circumstances in which attorneys may piggyback on the fact-finding investigation of their more

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While the non-party law firm was, in fact, not served with a Rule 45 subpoena, the Seventh Circuit explored
the hypothetical scenario in which Plaintiff did serve the law firm with this subpoena. In its analysis of this
hypothetical, the Court cited to Rule 26(b)(3), stating that “[t]he work-product privilege may be overcome ‘only
upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the
party’s case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials
by other means.’”

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diligent counterparts.” Sandra T.E, 600 F.3d at 621-22. In this case, Plaintiffs have failed to
satisfy their burden to show a “far stronger” need of necessity and unavailability as required by
Upjohn. The SA has already provided most of Ms. Pace’s case file, and Ms. Pace will have the
opportunity to depose the ASAs.
II.

Exemption Under Quasi-Judicial Immunity
The question of whether the SA and ASAs are exempted under quasi-judicial immunity

from compulsory testimony regarding their opinions and mental impressions is determined by
what role or function they were serving at the time of the prosecution. See, e.g., Capra v. Cook
County Bd. of Review, 733 F.3d 705, 709 (7th Cir. 2013); Tobin for Governor v. Illinois State Bd.
of Elections, 268 F.3d 517, 521 (7th Cir. 2001). Both federal and Illinois courts have consistently
held that SAs and ASAs are considered quasi-judicial officers entitled to quasi-judicial immunity
when initiating and prosecuting a criminal case on behalf of the government, as the SAs and
ASAs did in Ms. Pace’s criminal case. See Boyd v. Village of Wheeling, 1985 WL 2564 at *11
(N.D. Ill. 1985); People ex rel. Schreiner v. Courtney, 380 Ill. 171, 179 (1942) (“The State’s
Attorney is a quasi-judicial officer . . . .”).
In arguing that the SA is not a quasi-judicial officer but a part of the executive branch,
Plaintiffs have cited to the Illinois Supreme Court’s decision in Nelson v. Kendall County. 2014
IL 116303, 10 N.E. 3d 893. That case, however, is distinguishable from this one. There, the
Illinois court was determining whether the SA’s office is a “public body” within the meaning of
the Freedom of Information Act, a context that is not applicable here. Therefore, I find that the
SA and ASAs were quasi-judicial officers while investigating and prosecuting Plaintiff’s
criminal case and, as such, are entitled to invoke quasi-judicial immunity.

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CONCLUSION
For the foregoing reasons, Plaintiff’s Motion to Compel the Lake County State’s
Attorney’s Office to Disclose Attorney Work Product is denied.
ENTER:

James B. Zagel
United States District Judge
DATE: March 28, 2016

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