Patrick v. Chicago et al

Filing 192

MEMORANDUM Opinion and Order Signed by the Honorable Jeffrey Cole on 10/28/2015. (ma,)

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DEON PATRICK,
Plaintiff,
v.
CITY OF CHICAGO, et al.,
Defendants.

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No. 14 C 3658
Magistrate Judge Jeffrey Cole

MEMORANDUM OPINION AND ORDER

I.
INTRODUCTION AND FACTUAL BACKGROUND

In 1995, Deon Patrick was convicted in the Circuit Court of Cook County, Illinois, of two
counts of murder, two counts of home invasion, and one count of armed robbery. He was
sentenced to life imprisonment without parole. [First Amended Complaint, Dkt. #92, ¶ 4–5]. The
Illinois Appellate Court affirmed the convictions and sentence on July 7, 1998, and five months
later the Illinois Supreme Court denied a Petition for Leave to Appeal. Mr. Patrick made several
unsuccessful attempts to obtain relief from his convictions, beginning with a pro se Petition for
Post-Conviction Relief, (the “Petition”) filed on June 2, 1999, in the Circuit Court of Cook
County, claiming ineffective assistance of his trial counsel, John Theis, and his appellate
counsel, Linda Kahn. [Dkt. #95, Exh. B].
The skillfully drafted Petition alleged that Mr. Theis refused to investigate or meet with
the individuals whom Mr. Patrick identified as being his alibi witnesses.1 In fact, the Petition
1

While it is exceedingly unlikely that Patrick was its author, the Petition was clear, succinct, perfectly typed,
paginated and paragraphed, and the citations to the cited cases and to the Illinois Code of Civil Procedure
were in proper form.

1

alleged that Mr. Theis told Mr. Patrick he could not raise an alibi defense because of the
incriminating statement he gave to the police, even though, the Petition alleged, Mr. Patrick told
Mr. Theis that he was coerced into making that statement and that the statement was false. [Dkt.
#95, Exh. B at 14-15]. To the Petition, Mr. Patrick attached a letter he wrote to Ms. Kahn in
which he said he had told Mr. Theis that he wanted to testify but that Mr. Theis had talked him
out of it, and had “lied” when he said that Mr. Patrick could not testify. The letter went on to say
that Mr. Patrick had told Mr. Theis about alibi witnesses, to no avail. [Dkt. #95, Exh. C]. The
Petition alleged that Mr. Theis failed to argue that Mr. Patrick’s statement to the police was false
and coerced, failed to properly investigate alibi witnesses, and effectively prevented him from
testifying at trial. [Dkt. # 95-2, Exh. B at 8, 14-15]. Ms. Kahn, according to the Petition, failed to
raise these claims on direct appeal.
Mr. Patrick also attached affidavits to the petition swearing that he told Mr. Theis that he
had been coerced by the police into making a false statement, and that he wanted to explain to
the jury where he was at the time of the murders. The affidavit went on to say that Mr. Theis told
him that he “was not going to testify....” [Dkt. #95, Exh. D]. In another affidavit, Mr. Patrick
swore he had told Mr. Theis prior to trial that he’d been coerced by the police into making a
false statement, and that he had alibi witnesses. Mr. Theis, it was alleged, told him that he could
not raise an alibi defense because of the statement he gave to the police, and that Mr. Theis
refused to interview Audrey Mathews and Kimberly Jefferson, who could provide an alibi. [Dkt.
#95, Exh E]. The Petition and Mr. Patrick’s letter and affidavits were not filed under seal.
No protective order was sought or issued in the 1999 post conviction proceedings or over
the intervening years, even though Mr. Patrick had counsel as long ago as 2003, and his present
counsel have been involved in this case since at least 2013. [Dkt. #129 at 4]. Thus, the

2

information contained in the Petition and its attachments has been a part of the public record for
almost two decades with no effort being made to procure an appropriate protective order from
the Circuit Court of Cook County or from the United States District Court for the Northern
District of Illinois following the filing of the Patrick Complaint in 2014.
The Petition was followed by a petition for a writ of habeas corpus filed on December 3,
1999, in the United States District Court for the Northern District of Illinois. [Dkt.## 95-2, 124].
The federal habeas petition was stayed while Mr. Patrick’s claims were pending before the
Illinois courts. The Petition was dismissed as untimely because it was filed more than three years
after the date of the conviction. Counsel was not appointed. [Dkt. #124]. Mr. Patrick appealed,
and the Illinois Appellate Court affirmed the dismissal. Leave to appeal to the Illinois Supreme
Court was not sought. The federal habeas petition was denied on October 8, 2003. That ruling
was not appealed. [Dkt. #124].
A decade later, Mr. Patrick sought to vacate his convictions, alleging actual innocence
and the withholding of exculpatory evidence by the prosecution at his criminal trial. The Cook
County State’s Attorney’s Office (CCSAO) did not object, and in fact, on January 10, 2014,
moved to vacate Mr. Patrick’s convictions and subsequently dismissed the charges against him.
The CCSAO also did not oppose Mr. Patrick’s petition for a Certificate of Innocence, which was
granted on January 23, 2014 by the Chief Judge of the Cook County Criminal Court. [Dkt.
#124].2 Mr. Patrick then brought the present suit on May 19, 2014, alleging civil rights violations

2

Illinois law provides for the issuance of what is called a “Certificate of Innocence” declaring that the
petitioner was innocent of all offenses for which he or she was incarcerated. See 735 ILCS 5/2-702. The
underlying petition must state facts in sufficient detail to permit the court to find that the petitioner is likely
to succeed at trial in proving that the petitioner is innocent of the offenses charged in the indictment. Id. at
§702(d). The statute contains limitations on the purposes for which and the circumstances under which the
Certificate can be used. These limitations are not pertinent to the present motion, and the issue of whether
Illinois law or some other statutory or evidentiary principle will permit Mr. Patrick to have the Certificate
admitted at trial is not implicated by the current motion.

3

under 24 U.S.C. § 1983 and several supplemental state law claims against the arresting officers,
alleging they coerced a false confession from him and fabricated evidence against him. [See Dkt.
## 1, 92].
During discovery, the defendants deposed Mr. Patrick and Mr. Theis and sought to
inquire about the conversations (and related topics) that were disclosed in Mr. Patrick’s Petition
and the attached letter and affidavits. Mr. Theis and Mr. Patrick refused to answer, invoking the
attorney/client privilege and work-product protection. [Dkt. #95 at 2]. The defendants have
moved to compel Mr. Patrick and Mr. Theis to answer these and other questions and produce
documents related to their conversations at the time of the criminal trial in 1995.
While conceding that these conversations were covered by the attorney-client privilege in
the 1995 criminal case, the Defendants insist that Mr. Patrick waived the privilege when, in
1999, he filed his Petition in which he revealed the content of his conversations with Mr. Theis.3
Mr. Patrick does not dispute that the Petition resulted in a waiver of the attorney-client privilege
in the proceeding in which it was filed, but argues that the waiver is limited to that proceeding
and, in the words of the case on which he relies, is not operative “for all times and all purposes.”
Bittaker v. Woodford, 331 F.3d 715 (9th Cir. 2003)(en banc), cert denied, Woodford v. Bittaker,
540 U.S. 1013 (2003). [See Dkt. #124].
The defendants, not unexpectedly, have a very different view of the proper scope of that
waiver and of the applicability of Bittaker in the context of this case. If they are right, the waiver
has a life beyond the 1995 state court proceeding, and the defendants are entitled to depose Mr.
Patrick and Mr. Theis about the conversations disclosed in the Petition in which they discussed
alibi witnesses and police coercion of Mr. Patrick. If, however, Bittaker is to be extended to the
3

The fact that Mr. Patrick was proceeding pro se does not affect the waiver doctrine. United States v. Pinson,
584 F.3d 972, 974, 978 (10th Cir. 2009); Jenkins v. United States, 2010 WL 145850, *2 (E.D.Wis. 2010).

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factual circumstances presented by this case, their motion to compel must be denied. As the
briefs point out, this is a question on which there is precious little, if any, direct authority.
II.
ANALYSIS
A.
The Attorney-Client Privilege and the Law Governing the
Questions Raised in This Case
The threshold question is whether state or federal law governs the issue of waiver of the
attorney-client privilege – the oldest of the privileges for confidential communications known to
the common law. United States v. Jicarilla Apache Nation, 131 S.Ct. 2313, 2320 (2011); Hunt v.
Blackburn, 128 U.S. 464, 470–71 (1888). The purpose of the privilege “is to encourage full and
frank communication between attorneys and their clients and thereby promote broader public
interests in the observance of law and administration of justice....” Upjohn Co. v. United States,
449 U.S. 383, 389 (1981). The privilege exists where legal advice is sought from a professional
legal advisor acting as such, and the communication relates to that purpose and is made in
confidence by the client. United States v. Bey, 772 F.3d 1099, 1101 (7th Cir. 2014); Radiant
Burners, Inc. v. American Gas Association, 320 F.2d 314, 318 (7th Cir. 1963), cert denied, 375
U.S. 929 (1963).
The attorney-client privilege, like all testimonial privileges and all exclusionary rules,
comes at a price. Since it makes the search for truth more difficult by preventing disclosure of
what is often exceedingly relevant information, the privilege is strictly construed and is limited
to those instances where it is necessary to achieve its purposes. University of Pennsylvania v.
EEOC, 493 U.S. 182, 185, 189 (1990); Fisher v. United States, 425 U.S. 391, 403 (1976);
Jenkins v. Bartlett, 487 F.3d 482, 490 (7th Cir. 2007); United States v. Lawless, 709 F.2d 485,
487 (7th Cir.1983)(scope of privilege should be “strictly confined within the narrowest possible

5

limits”). Illinois courts subscribe to this view of the privilege as well. Center Partners, Ltd. v.
Growth Head GP, LLC, 981 N.E.2d 345, 356 (Ill. 2012). Indeed, in Illinois, it is “the privilege,
not the duty to disclose, that is the exception.” Waste Management, Inc. v. International Surplus
Lines Ins. Co., 144 Ill.2d 178, 190, 579 N.E.2d 322, 327 (1991); Doe v. Township High School
Dist. 211, 34 N.E.3d 652, 670 (1st Dist. 2015). These principles also apply to claims of work
product. See Gallegos v. Safeco Insurance Company of America, 2015 WL 1009247, 2 (D.Colo.
2015); Algonquin Heights v. United States, 2008 WL 2019025, 7 (Fed.Cl. 2008).
Mr. Patrick’s Complaint is based on 28 U.S.C. §1983, with jurisdiction pursuant to 28
U.S.C. §1331. [Dkt. #92, ¶5]. “Questions of privilege that arise in the adjudication of federal
rights . . . [require courts to] address the question[s] as a matter of the federal common law of
privileges.” United States v. Zolin, 491 U.S. 554, 562 (1989). See Fed. R. Evidence. 501. State
law therefore does not provide the rule of decision. The presence of supplemental state law
claims for malicious prosecution, intentional infliction of emotional distress, and civil
conspiracy included in the First Amended Complaint [Dkt. #92, ¶¶126-143] does not change the
applicability of federal common law. See, e.g., Memorial Hospital for McHenry County v.
Shadur, 664 F.2d 1058, 1061 & n 3 (7th Cir. 1981); Lewis v. United States, 517 F.2d 236, 237
(9th Cir. 1975); Babych v. Psychiatric Solutions, Inc., 271 F.R.D. 603, 609 (N.D.Ill. 2010 ). See
also S. Rep. No. 93-1277, 93d Cong., 2d Sess. at 12 & n 16 (1974)(“It is also intended that the
Federal law of privileges should be applied with respect to pendant [sic] State law claims when
they arise in a Federal question case.”).

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B.
Waiver of the Attorney-Client Privilege
The attorney-client privilege, like other rights and privileges (including the work-product
doctrine) can be waived. United States v. Nobles, 422 U.S. 225, 239 (1975); United States v.
Brock, 724 F.3d 817, 821 (7th Cir. 2013). Waiver of the privilege can occur either explicitly or
by implication. Lorenz v. Valley Forge Ins. Co., 815 F.2d 1095, 1098 (7th Cir. 1987). Express
waiver of the privilege occurs primarily when information that would otherwise be privileged is
not kept confidential. United States v. Buljubasic, 808 F.2d 1260, 1268 (7th Cir. 1987).
Disclosure of confidential communications is inconsistent with the attorney-client relationship
and almost invariably waives the privilege “with respect to the world at large; selective
disclosure is not an option.” Burden-Meeks v. Welch, 319 F.3d 897, 899 (7th Cir. 2003).
“‘The client cannot be permitted to pick and choose among his opponents, waiving the
privilege for some and resurrecting the claim of confidentiality as to others, or to invoke the
privilege as to communications whose confidentiality he has already compromised for his own
benefit.’” In re Columbia/HCA Healthcare Corp. Billing Practices Litigation, 293 F.3d 289, 302
-303 (6th Cir. 2002). See also Bittaker, 331 F.3d at 719; Sarkes Tarzian, Inc. v. U.S. Trust Co. of
Fla. Sav. Bank, 397 F.3d 577, 584 (7th Cir. 2005); In re Keeper of Records (Grand Jury
Subpoena Addressed to XYZ Corp.), 348 F.3d 16 (1st Cir. 2003); Powers v. Chicago Transit
Authority, 890 F.2d 1355, 1359 (7th Cir. 1989). And information once disclosed to a party
opponent waives the attorney-client privilege as to future proceedings. See, e.g., United States v.
Mass. Inst. of Technology, 129 F.3d 681, 686 (1st Cir. 1997); Genentech, Inc. v. United States
Int'l Trade Comm'n, 122 F.3d 1409, 1416, 1416–18 (Fed.Cir. 1997); In re Steinhardt Partners,
L.P., 9 F.3d 230, 236 (2d Cir.1993); In re Martin Marietta Corp., 856 F.2d 619, 623–24 (4th Cir.

7

1988); In re von Bulow, 828 F.2d 94, 101–02 (2nd Cir.1987); United States v. Suarez, 820 F.2d
1158, 1161 (11th Cir. 1987); 8 J. Wigmore, Evidence §2328 at 638–39 (McNaughton rev.
1961)(“A waiver [of attorney-client privilege] at one stage of a trial should be final for all further
stages, and a waiver at a first trial should suffice as a waiver for a later trial, since there is no
longer any reason for preserving secrecy.”).
Waiver can also occur by implication, which occurs when a party takes a position in
litigation that makes it unfair to protect that party's privileged communications. The implied
waiver doctrine ultimately is based on considerations of fairness: that is, a party may not use
privilege as a tool for manipulation of the truth-seeking process. Bittaker, 331 F.3d at 719. The
doctrine of waiver by implication reflects the position that the attorney-client privilege was
intended as a shield, not a sword. Center Partners, Ltd., 981 N.E.2d at 362.
In practical terms, this means that parties in litigation may not abuse the privilege by
asserting claims the opposing party cannot adequately dispute unless it has access to the
privileged materials. The party asserting the claim is said to have implicitly waived the privilege.
3 Jack B. Weinstein & Margaret A. Berger, Weinstein's Federal Evidence §503.41[1], at
503–104.1 to.2 (Joseph M. McLaughlin ed., 2003). See also In re Kellogg Brown & Root, Inc.,
796 F.3d 137, 145-146 (D.C. Cir. 2015); Seneca Ins. Co., Inc. v. Western Claims, Inc., 774 F.3d
1272, 1278 (10th Cir. 2014). Courts that have imposed waivers under the fairness principle have
tailored the scope of the waiver to the needs of the opposing party in litigating the claim in
question. Only those documents or portions of documents relating to the claim asserted by the
client should be disclosed. Bittaker, 331 F.3d at 720.

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C.
The Scope of Mr. Patrick’s 1999 Waiver of the Attorney-Client Privilege
1.
While conceding that the attorney-client privilege and work product protection were
waived in the state court litigation in which the Petition was filed, [Dkt. #124 at 9, 10 n.3], the
plaintiff argues that the waiver is limited to those proceedings. The argument is based on the
Ninth Circuit’s en banc decision in Bittaker v. Woodford, supra. In Bittaker, a death row inmate
challenged his conviction in the federal court via a petition for a writ of habeas corpus, claiming
ineffective assistance of counsel. The State sought discovery of trial counsel’s file, and the
district court granted the motion. Bittaker refused to be deposed and refused to allow his trial
counsel to be deposed or to allow the State access to his trial counsel's files without a protective
order precluding dissemination of the discovered materials outside the federal habeas
proceeding. Bittaker, 331 F.3d at 729 (O’Scannlain, J., concurring).
The district judge granted Bittaker’s request for a protective order in advance of
discovery, restricting the use of privileged communications that might be obtained in discovery
by the State from the petitioner. 331 F.3d at 717 & n 1. The State appealed, asking that the
protective order be vacated, contending that by virtue of the claim of ineffective assistance of
counsel, the defendant had waived the attorney/client privilege, and that the waiver should
extend to the retrial of the criminal case. The Court of Appeals, sitting en banc, upheld the action
of the district court. For Mr. Patrick, Bittaker and the cases that have followed it4 – all of which,

4

See, e.g., United States v. Nicholson, 611 F.3d 191, 217 (4th Cir. 2010); United States v. Pinson, 584 F.3d
972, 978 (10th Cir. 2009); In re Lott, 424 F.3d 446, 453 (6th Cir. 2005); Fife v. United States, 2015 WL
2189712, at *2 (E.D. Wis. 2015); United States v. Watson, 2015 WL 1905881 (S.D. Ohio 2015); United
States v. Collyard, 2013 WL 1346202 (D. Minn. 2013).

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it should be noted, arose in corresponding factual situations5– must apply equally in a federal
civil rights suit that charges the police with having framed the defendant. But “[a]cquiescence in
a precedent does not require approval of its extension,” Dennis v. United States, 339 U.S. 162,
175 (1950)(Frankfurter, J., dissenting), especially “to an entirely new context.” Scott v. Houk,
760 F.3d 497, 506 (6th Cir. 2014).
Indeed, since Cohens v. Virginia, 19 U.S. 264 (1821)(Marshall, C.J.), it has been
accepted that general expressions in every opinion are to be read in context and not as “‘referring
to quite different circumstances that the Court was not then considering.’” United States v. Ker
Yang, 799 F.3d 750, 755 (7th Cir. 2015). See also United States v. Skoien, 614 F.3d 638, 640 (7th
Cir. 2010). When Bittaker is read in the animating and defining context of its facts, it is clear that
it was not intended to and ought not apply to the very different situation presented by the instant
case.
2.
Bittaker’s focus was on the effect a “broad” waiver of the attorney-client privilege would
have on the retrial of a state court criminal case in the event a claim of ineffective assistance of
counsel were to succeed. The court concluded that if the federal courts were to require habeas
petitioners to give up the privilege categorically, criminal defense attorneys “would have to
worry constantly about whether their casefiles and client conversations would fall into the hands
of the prosecution.” Additionally, and perhaps more importantly, “they would have to consider
the very real possibility that they might be called by the prosecution on a retrial of the criminal
case as a witness against their clients....” From this, the court concluded that a “broad waiver
rule would no doubt inhibit the kind of frank attorney-client communications and vigorous

5

The plaintiff’s response brief ignores this critical fact. [See Dkt. #124 at 1].

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investigation of all possible defenses that the attorney-client and work product privileges are
designed to promote.” 331 F.3d at 722 (emphasis supplied). No further explanation was given
for this conclusion, and no evidence was given in support of it.6
Long experience has shown that criminal defense lawyers are made of stronger stuff than
Bittaker (and Mr. Patrick) assume, and that it is unrealistic to presume that they would pursue
the self-defeating and obviously unethical strategy of limiting their discussions with their clients
and curtailing their investigative efforts to avoid being a possible witness on retrial. But
accepting Bittaker’s hypothesis in the context of a criminal case does not mean that it should
apply in a federal civil rights case like Mr. Patrick’s. If, absent a “narrow” waiver, there is not a
reasonable likelihood or danger that a criminal defense lawyer will curtail his efforts on behalf of
his client as Bittaker predicts, merely because at some point in the indeterminate future he might
be a witness in a civil rights case – Bittaker alleviates any concern that defense counsel might
have about being a witness in a retrial of the criminal case – Bittaker should not be extended
outside the criminal context.7
For there to be a likelihood that Bittaker’s dire prophesy would come to pass in the
context of a case like Mr. Patrick’s, the lawyer in the criminal case would have to make the
following conscious calculation: (1) the defendant will likely be convicted;8 (2) he will likely file
6

The same is true of Mr. Patrick’s brief, which recites the Bittaker prophecy about the supposed inhibiting
effect a broad waiver would have on a defense lawyer’s interactions with his client and his pursuit of possible
defenses and concludes, without any analysis, that absent a narrow waiver, the same thing would happen in
this and like cases. [Dkt. #124 at 9–10]. But conclusions without reasons are not persuasive. United States
v. Eiselt, 988 F.2d 677, 680 (7th Cir. 1993).
7

In the First Amendment context, the danger of a chilling effect must be based on a realistic likelihood of
danger and not on tendentious speculation. Faustin v. City and County of Denver, Colorado, 423 F.3d 1192,
1199 (10th Cir. 2005). There is every reason why that requirement should obtain in cases like Mr. Patrick’s.
8

If the defendant is acquitted in the criminal case, the issue in Bittaker will never arise. And the civil rights
suit will not of its own force waive the attorney-client privilege that the defendant (now plaintiff) and his

(continued...)
11

a postconviction claim for ineffective assistance of counsel; (3) he will likely prevail on that
claim; (4) he will be retried and likely acquitted; or (5) if convicted, his conviction will likely be
overturned or, in one way or another, at some point in the indeterminate future, be set aside; and
(6) the vindicated defendant will bring a civil rights suit against police. This is necessarily a
more complicated and extended analysis than the one Bittaker assumed a criminal defense
lawyer in a state court criminal case would make. But experience and logic teach that no
criminal defense lawyer in a state court criminal case would allow his fidelity to his client to be
affected because of the speculative possibility that years in the future he might be a witness in a
federal civil rights civil rights case, and consciously (and unethically) curtail his efforts in the
criminal case. For to do so would increase the chance of a prosecution victory and with it the
likelihood that he might be a witness years later in a civil rights case – the very thing that is
sought to be avoided.
Thus, it is apparent that the argument for extending Bittaker beyond its criminal case
origins to a federal civil rights case like Mr. Patrick’s is bottomed on an unsupported and
illogical assumption about how criminal defense lawyers think and act. It is thus unacceptable,
since analysis should be “‘guided by 'common sense and ordinary human experience.'" United
States v Montoya De Hernandez, 473 U.S. 531, 542 (1985). Accord Greenstone v. Cambex
Corp., 975 F.2d 22, 26 (1st Cir.1992)(Breyer, C.J.); Cooney v. Rossiter, 583 F.3d 967, 971 (7th
Cir. 2009); Dabertin v. HCR Manor Care, Inc., 373 F.3d 822, 830 (7th Cir. 2004). See also
Posner, How Judges Think at 116 (Harv. Univ. Press 2008). In considering whether Bittaker
should be extended to Mr. Patrick’s and like cases, we would do well to recall Justice Brandeis’s

8

(...continued)

attorney had in the criminal case. See In re Lott, 424 F.3d 446 (6th Cir. 2005). Contra In re Lott, 424 F.3d
at 456 (Boggs, C.J., dissenting)(raising claim of actual innocence waives the attorney-client privilege).

12

wise admonition: “the logic of words should yield to the logic of realities.” DiSanto v.
Pennsylvania, 273 U.S. 34, 43 (1927).
In sum, like the court in Tennison v. City & County of San Francisco, 226 F.R.D. 615,
623 (N.D.Cal.2005), I do not think that “there a likelihood that communications between a
criminal defendant and his attorney will be chilled as a result of the limited waiver found under
the circumstances of this lawsuit.”
3.
Also conspicuously absent in the context of a case like Mr. Patrick’s are the other
concerns (which are constitutional in nature) that underlay Bittaker, namely ensuring that the
retrial would not “immediately and perversely [be] skew[ed]...in the prosecution’s favor by
handing to the State all the information in the petitioner’s first counsel’s case file.” Id. at 722.
That result, the court held, would be dissonant with the goal of restoring the defendant to the
position he would have occupied had the first trial been constitutionally error-free – that is, had
he received effective representation. Giving the prosecution the advantage of obtaining the
defense casefile and forcing defense counsel to testify against his client during the retrial “would
assuredly not put the parties back at the same starting gate.” Id. at 723. Here, there is no
prosecutor, and no second criminal trial to be skewed in the prosecution’s favor. Since the evils
Bittaker predicted (in the context of a retrial of a state court criminal case) are not present in a
federal civil rights case like Mr. Patrick’s, the waiver of the attorney-client privilege in a federal
civil rights suit need not be “narrow.”
Lambright v. Ryan, 698 F.3d 808 (9th Cir. 2012) explained Bittaker as holding that the
defendant impliedly waived his attorney-client privilege when he filed his habeas petition so that
therefore “he could not later [in discovery] expressly waive the privilege by simply disclosing

13

privileged documents without objection.” Id. at 819 (Emphasis supplied). In this case, Mr.
Patrick did not simply file a petition alleging ineffective assistance of counsel and “later” make
explicit disclosures about communications between him and Mr. Theis. Rather, he attached to
the Petition a letter disclosing one of those conversations and multiple affidavits, disclosing
conversations he had with Mr. Theis. [See Dkt. #124]. Consequently, the sequence of events that
the Ninth Circuit found necessarily precluded a “later” express waiver during discovery does not
exist here.9
Bittaker also concluded that were a “broad” waiver necessary to satisfy federal interests,
the State's interest in protecting lawyer-client confidences might have to yield. 331 F.3d at 722.
But, the court perceived no paramount federal interest that would be compromised by a narrow
waiver and declined to enlarge the scope of the waiver beyond what was needed to litigate the
ineffective assistance of counsel claim. See Laughner v. United States, 373 F.2d 326, 327 (5th
Cir. 1967). In this case, there are federal interests involved in Mr. Patrick’s case, namely how a
case based on a federal civil rights statute is to be tried in federal court.
It is obviously important that the trial be fair and that the jury’s decision be an informed
one. The defendants vigorously deny they did anything wrong and that the case is a sham,
sinisterly orchestrated by Mr. Patrick, who they continue to insist is guilty of the murders.
However, if Mr. Patrick is right, the defendants are guilty of the most despicable conduct and
ought to be subject to condign punishment. For the jury to be able fairly to resolve this case and
arrive at the truth, which is the goal of all trials, United States v. Slone, 833 F.2d 595, 597 (6th

9

Illinois law requires that a postconviction petition have attached thereto “affidavits, records, or other
evidence supporting its allegations” or explain why they are not attached. 725 ILCS 5/122–2 (West 2002).
Noncompliance with this section can be fatal and can justify the petition's summary dismissal. People v.
Harris, 862 N.E.2d 960, 967, 224 Ill.2d 115, 126 (2007). The plaintiff raises no argument based on this
section of the Code of Civil Procedure, and so any argument that might have been raised is waived.

14

Cir.1987); Center Partners, Ltd., 981 N.E.2d 345 at 356, 367; Rule 102, Federal Rules Evidence,
the jury should have available to it all relevant, nonprivileged, admissible evidence. Under the
circumstances of this case, a narrow waiver disserves that interest; a broad one furthers it.
4.
The conversations plaintiff voluntarily disclosed in the Petition are not privileged
pursuant to Federal Rule of Evidence 502. Under Rule 502, when the disclosure of a
communication covered by the attorney-privilege “is made in a state proceeding and is not the
subject of a state-court order concerning waiver, the disclosure does not operate as a waiver in a
federal proceeding if the disclosure: (1) would not be a waiver under this rule if it had been made
in a federal proceeding; or (2) is not a waiver under the law of the state where the disclosure
occurred.” Here, plaintiff’s voluntary disclosures of his conversations with his attorney were not
the subject of a state-court order concerning the waiver. Plaintiff’s disclosures would constitute a
waiver in federal court. Additionally, plaintiff cites no Illinois law limiting the waiver made by
plaintiff, and plaintiff has not pointed to any language in the Illinois Post-Conviction Hearing
Act limiting waivers of the attorney-client privilege.
Often a disclosure of privileged communications waives the privilege as to all other
communications on that same subject matter. See, e.g., Appleton Papers, Inc. v. EPA, 702 F.3d
1018, 1025 (7th Cir. 2012); Medicines Co. v. Mylan, Inc., 936 F. Supp. 2d 894, 903 (N.D.Ill.
2013). But subject matter waiver generally occurs only where the party holding the privilege
seeks to gain some strategic advantage by disclosing favorable, privileged information, while
holding back that which is unfavorable. See In re Sealed Case, 676 F.2d 793, 809 & n 54 (D.C.
Cir. 1982); Graco Children’s Products, Inc. v. Dressler, Goldsmith, Shore & Milnamow, Ltd.,
1995 WL 360590, *8 (N.D.Ill. 1995). That is not what is occurring here. Mr. Patrick has not

15

attempted to rely on any aspect of any conversation he ever had with Mr. Theis. Quite the
contrary. He is quite adamant that none of those conversations should be admissible in this case.
Mr. Patrick is therefore not seeking to use the privilege simultaneously “as a shield and a
sword.” United States v. Bilzerian, 926 F.2d 1285, 1292 (2nd Cir.1991). Hence, the traditional
subject matter waiver ought not apply here.
5.
The Work-Product Doctrine
The remaining issue to be decided is whether Mr. Theis and Mr. Patrick’s claim of work
product protection should be honored, or whether it, like the attorney-client privilege, has been
waived. In an earlier decision in this case, we explored the work product doctrine, and that
analysis need not be repeated. Patrick v. City of Chicago, 2015 WL 3989152, at *4 (N.D.Ill.
2015). It is sufficient for present purposes to note that the work-product doctrine “protects many
of the same interests” as the attorney/client privilege, Bittaker, 331 F.3d at 722, n. 6, and, like
the attorney-client privilege, it can be expressly or impliedly waived.10
At the parties’ request, I conducted an in camera review of the documents for which
work product protection has been claimed. Mr. Patrick’s counsel has provided me with an
“Index of Withheld Documents” attached to her letter to me of September 23, 2015. The
difficulty is that some of the documents are difficult to read. But to the extent that I have been
able to decipher the documents, many appear to be entitled to work product protection. Others do
not appear to cast light on the central questions in this case. For the same reasons that the
10

The work-product doctrine is governed by Federal Rule of Civil Procedure 26(b)(3), which provides, in
relevant part that “a party may not discover documents and tangible things that are prepared in anticipation
of litigation or for trial by or for another party or its representative . . . [however,] those materials may be
discovered if: (i) they are otherwise discoverable under Rule 26(b)(1); and (ii) the party 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)(1)(B). But the question in this case is whether
there has been a waiver of work product protection, not whether otherwise protected documents are
discoverable pursuant to Rule 26(b)(3).

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attorney-client privilege has been waived, that waiver extends to those documents that discuss or
elaborate on the topics disclosed in the letter and affidavits Mr. Patrick attached to his 1995
Petition.
Thus, those documents discussed in paragraphs 1, 2, 3 (but not any portions reflecting
Mr. Theis’s legal research), 4 and 5 of the Index should be turned over to the defendants. Since
the waiver in this case extends to conversations between Mr. Theis and Mr. Patrick regarding the
topics disclosed in the Petition and its attachments – there may be multiple conversations that are
discoverable – the defendants need not turn over the documents referred to in paragraphs 6, 8, 9,
10 and 11 of the Index of Withheld Documents. There has there been no waiver of opinion work
product, and thus any documents reflecting Mr. Theis’s opinions, legal research, or strategies for
the defense of the murder case need not be turned over. 11
Counsel for Mr. Patrick must review the documents again to ensure that there is nothing
in those listed in paragraphs 6, 8, 9, 10 and 11 that refers, reflects, or relates to the disclosures in
Mr. Patrick’s 1995 Petition and attachments. To the extent any of the documents contain such
information, they must be turned over to the defendants.
6.
The Decision in Taylor v. The City of Chicago
Daniel Taylor was also charged in 1995 in connection with the murders. In a separate
trial, he was convicted and, like Mr. Patrick, spent more than 20 years in prison before being
11

Opinion work product receives greater protection than ordinary work product, In re Cendant Corp. Sec.
Litig., 343 F.3d 658, 663 (3rd Cir.2003) and “enjoys a nearly absolute immunity....” Smith v. Scottsdale Ins.
Co., 2015 WL 4569284, at *2 (4th Cir. 2015). The showing necessary to obtain opinion work product far
exceeds the substantial need/undue hardship test required under Rule 26(b)(3) for non-opinion work product.
Holmgren v. State Farm Mut. Auto. Ins. Co., 976 F.2d 573, 577 (9th Cir.1992). Mr. Theis’ mental impressions
are not at issue in the instant case. For purposes of discovery all that is relevant is what Mr. Theis was told
by his client in their conversations about the topics disclosed in the Petition and its attachments.

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released. He has brought a separate suit under 42 U.S.C. §1983, alleging that the City of Chicago
and several Chicago police officers coerced him into falsely confessing to the murders and
concealed exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963). [14 C
737]. Mr. Taylor and his former criminal defense lawyer, Nathan Diamond-Falk, invoked the
attorney-client privilege and work product doctrine during their depositions in the Taylor case.
The defendants then moved to compel answers to certain questions, contending that Mr. Taylor’s
Brady claim resulted in an implied waiver of the attorney-client privilege and work product
protection.
The Taylor court recently agreed, since Mr. Taylor’s Brady claim is specifically about his
treatment in police custody and “whether his attorney knew about the abuse.” The court
concluded “he has therefore placed at issue the conversation he and [his attorney] had relating to
the allegedly coerced confession, and the attorney-client privilege does not shield them from
answering questions on that topic.” [14 C 737, Dkt. #219 at 9]. The court came to the same
conclusion regarding whether the defendants’ lawyer knew or should have known about the
existence and identity of an alleged alibi witness. Id. at 13. These conclusions are in accord with
and necessitated by basic principles under established Brady case law and principles of implied
waiver.
To succeed on a Brady claim, a plaintiff must prove the existence of the facts claimed to
be suppressed, that the facts meet the standard of constitutional materiality, and that he and his
attorney lacked knowledge of that evidence. Cf., California v. Trombetta, 467 U.S. 479, 488–89
(1984); United States v. Dupuy, 760 F.2d 1492, 1502, n. 5 (9th Cir.1985)(no suppression when
defense knew of undisclosed witnesses' identities); United States v. Grossman, 843 F.2d 78, 85
(2nd Cir. 1988)(no due process violation “where a defendant knew of or should have known the

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essential facts permitting him to take advantage of any exculpatory information, or where the
evidence is available to defendant from another source”); Tennison, 226 F.R.D. at 622–23.
Claims of implied waiver are guided primarily by “fairness” principles. In re Keeper of
Records (Grand Jury Subpoena Addressed to XYZ Corp.), 348 F.3d 16, 23 (1st Cir. 2003); 8 J.
Wigmore, Evidence § 2327 at 636 (J. McNaughton rev. 1961). And so, an implied waiver may
be found where the privilege holder relies on a “legal claim or defense, the truthful resolution of
which will require examining confidential communications.” Lorenz v. Valley Forge Insurance
Co., 815 F.2d 1095, 1098 (7th Cir.1987). See also, In re Grand Jury Proceedings, 219 F.3d 175,
182 (2nd Cir. 2000). In light of these fundamental principles, it is not surprising that the court in
Taylor concluded that by virtue of his Brady claims, the plaintiff impliedly waived the attorneyclient privilege and work product protection as to those communications the subject matter of
which involved the allegedly withheld information. But since not all of the claims fell within this
definition, the motion was granted in part and denied in part.
The defendants in the instant case contend that the Taylor opinion supports their
arguments in this case. Mr. Patrick’s view is that Taylor is irrelevant here, as the issues in the
two cases are dissimilar. I agree. While the issues explored in the Taylor opinion and those
involved here involve implied waivers, the issues are not congruent as evidenced by the
dissimilar briefing in the two cases. It is not surprising that Bittaker and the cases and arguments
based on it, while vital here, were not mentioned in the briefs in Taylor. [Dkt. ##201, 203].
Similarly, except for a tangential reference in the defendants’ reply brief [Dkt. #129 at 2], Brady
is not cited or discussed in the briefs in the instant case [Dkt. ##95, 124] even though Brady was
the cynosure of the briefs and of the court’s opinion in Taylor.

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Finally, there is the argument that Mr. Theis’ declaration filed in support of a motion for
partial summary judgment has no relevance to this case. During his deposition, Mr. Theis did
answer a number of questions, (see, Plaintiff’s Response To City Defendants Motion To Cite
Additional Authority, [Dkt. #177]), contrary to the intimation in the defendants’ motion to cite
additional authority. The focus of the questions and answers related to whether Daniel Taylor
was in police custody at the time of the murders and how the answer to that question could have
related to Mr. Patrick’s defense. Mr. Theis’ affidavit in support of the motion for partial
summary judgment does not expand the scope of the waiver that exists in this case resulting
from the Petition and its attachments.
CONCLUSION
Bittaker recognized that law, like life, often requires that a choice between competing
alternatives be made. And so, the court held, a defendant in a criminal who had filed a
postconviction claim for ineffective assistance of counsel case had to choose between protecting
the confidentiality of communications with his criminal defense lawyer or pursuing his claim. If
he chose to abandon his claim, the confidentiality of his communications would be preserved. If
he chose to pursue his claim, the confidentiality of those communications would vanish. But
choose he must. 331 F.3d at 720. The same is true for Mr. Patrick. And like the plaintiff in
Bittaker, he cannot have both objects of his desire. That the choice between pursuing a claim or
preserving the confidentiality of communications with one’s lawyer presents difficult and
incompatible alternatives does not, as Bittaker recognized, make it impermissible to require that
the choice be made. The legal system “‘is replete with situations requiring the making of
difficult judgments as to which course to follow.”’ McGautha v. California, 402 U.S. 183, 213
(1971). The fact that Mr. Patrick had to make such an election does not entitle him to judicial

20

shelter from the consequences of his choice. Cf., United States v. Martinez-Salazar, 528 U.S.
304, 307 (2000).
The Defendants’ Motion to Compel Responses to Certain Discovery [Dkt. #95] is
GRANTED IN PART and DENIED IN PART. Mr. Patrick and Mr. Theis shall answer the
questions they refused to answer during their depositions pertaining to the conversations
disclosed in Mr. Patrick’s 1999 Petition for Post-Conviction Relief and the attached exhibits.
The waiver resulting from those disclosures includes: (1) Mr. Patrick’s claimed alibi witnesses;
(2) whether Mr. Patrick told Mr. Theis he wanted to raise an alibi defense and identified alibi
witnesses; and (3) whether Mr. Patrick was coerced by the police into making a false inculpatory
statement. To the extent that the Defendants’ questions seek information regarding discussions
with Mr. Theis not disclosed in the Petition or its attachments, Mr. Patrick and Mr. Theis are nor
required to provide that information.

ENTERED:
UNITED STATES MAGISTRATE JUDGE
DATE: 10/28/15

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