Simon v. Northwestern University et al

Filing 234

MEMORANDUM Opinion and Order Signed by the Honorable M. David Weisman on 2/3/2017. Mailed notice (ao,)

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

ALSTORY SIMON,
Plaintiff,
vs.
NORTHWESTERN UNIVERSITY, DAVID
PROTESS, PAUL J. CIOLINO

Defendants

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Case No. 1:15-CV-1433
Judge Robert M. Dow Jr.
Magistrate Judge M. David Weisman

MEMORANDUM OPINION AND ORDER
This motion to compel arises out of a malicious prosecution, conspiracy, and respondeat
superior case pending in the Northern District of Illinois. In the underlying action, Plaintiff
Alstory Simon alleges that a Northwestern Medill School of Journalism (hereinafter “Medill”)
investigative journalism class led by Defendants Professor Protess and investigator Ciolino
created false evidence to frame him for a double-murder he did not commit. Simon seeks to
compel the production of documents and electronically stored information (hereinafter “ESI”)
spanning over a 15-year period. Northwestern argues that production of the requested documents
is not only burdensome but documents outside of a four-year period are irrelevant to this
litigation. The parties are well aware of the serious allegations set forth in the complaint.
However, for purposes of clarity, the Court will briefly review the most germane facts below:
I. Background
Simon complains that a Medill investigative journalism class framed him for a doublemurder (hereinafter “murders”) to secure the release of the true killer, Anthony Porter. (Compl.,
ECF No. 1.) In 1983, Anthony Porter was sentenced to death for the murders. (Id. ¶ 80.) In
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1998, Professor Protess’s investigative journalism class began investigating Porter’s case
(hereinafter “Porter Investigation”). Ciolino, an alleged adjunct Professor at Northwestern
University, was hired as an investigator on the case. (Id. ¶ 2.) In order to successfully claim
Porter’s innocence, Plaintiff asserts that Ciolino manufactured evidence and compelled false
confessions to invent an alternative suspect: Plaintiff. (Id. ¶ 80.) Simon’s complaint details
various “investigatory” techniques employed by Protess and Ciolino that Plaintiff contends
resulted in Porter’s exoneration and Plaintiff’s wrongful conviction for the very same doublemurder. (See id.) In 1999, Plaintiff was sentenced to concurrent terms of thirty-seven years for
murder and fifteen years for voluntary manslaughter. (Id. ¶ 115.)
In October of 2013, the Conviction Integrity Unit of the Cook County State’s Attorney’s
Office announced that it would reinvestigate the murders. (Id. ¶ 123.) After a year-long
investigation, the State’s Attorney’s Office requested that the Circuit Court vacate the charges.
(Id. ¶ 124.) State’s Attorney Anita Alvarez issued a press release on the investigation and stated
that, “we could reach no other conclusion but that the investigation of this case has been so
deeply corroded and corrupt we can no longer maintain the legitimacy of this conviction.” (Id. ¶
125.) Simon was freed from prison after fifteen years.
The Porter Investigation was only one of many wrongful conviction investigations
conducted by Protess and Medill’s investigative journalism class. In 1990, prior to the Porter
Investigation, Protess and the investigative journalism class investigated the case of David
Dowaliby, who was convicted of murdering his seven-year old daughter. (Id. ¶ 22.) According
to the complaint, largely based on Protess’s investigation, the conviction was overturned. (Id. ¶
24.) In 1996, Protess and the Medill Investigative Journalism class began investigating the
wrongful conviction of four men known as the “Ford Heights Four.” (Id. ¶ 28.) All four men

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were exonerated. (Id.) These exonerations brought fame and prestige to the school. (Id. ¶ 30.)
In 2014, after the Porter case, the investigative journalism class was involved in the wrongful
conviction investigations of People v. Serrano and People v. McKinney. The complaint makes
clear that the common theme throughout these investigations is that Protess and the investigative
journalism class repeatedly used unethical investigatory tactics to secure the release of the
“wrongfully convicted.” (See id. ¶¶ 32 & 133.) Finally, in 2011 Protess resigned from
Northwestern.
At this stage of the litigation, Plaintiff has moved to compel certain discovery from
Protess and Northwestern. (Mot. Compel, ECF No. 194.) Specifically, Plaintiff states
Defendants refused to produce 1) employment records; 2) ESI; 3) records of benefits received for
investigations; or 4) documents pertaining to any of Protess’s investigations that were not
generated from 1995-1999, unless related specifically to Plaintiff’s case. (Id. at 4.) Plaintiff states
Northwestern refused to produce any discovery regarding its book sales or Medill donations,
which Plaintiff argues is relevant to the respondeat superior claim. Plaintiff requests ESI from
1990 to present. (Id.) Finally, Plaintiff moves for an order compelling Ciolino to directly answer
contention interrogatories. (Id.)
II. Discussion
A. Rule 26 and Proportionality Considerations
Under Rule 26, a district court has broad discretion in matters relating to discovery.
Patterson v. Avery Dennison Corp., 281 F.3d 676 (7th Cir. 2002). Rule 26 permits the discovery
of any “nonprivileged matter that is relevant to any party’s claim or defense and proportional to
the needs of the case.” Fed. R. Civ. P. 26. The 2015 amendments confirmed the concept of

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“proportionality” by adding it to the language of Rule 26(b)(1). When determining the scope of
discovery, Rule 26 requires the consideration of:
the importance of the issues at stake in the action, the amount in
controversy, the parties’ relative access to relevant information, the parties’
resources, the importance of the discovery in resolving the issues, and whether the
burden or expense of the proposed discovery outweighs its likely benefit.
Information within this scope of discovery need not be admissible in evidence to
be discoverable.
Id. Pursuant to Rule 26, information within the scope of discovery does not need to be
admissible at trial. Id. Despite the “strong public policy in favor of disclosure of relevant
materials,” Patterson, 281 F.3d at 681, a district court should impose limits if “the discovery
sought is unreasonably cumulative or duplicative, or can be obtained from some other source that
is more convenient, less burdensome, or less expensive.” Fed. R. Civ. P. 26. Prior to limiting
discovery, “the court should consider the totality of the circumstances, weighing the value of the
material sought against the burden of providing it, and taking into account society’s interest in
furthering ‘the truthseeking function’ in the particular case before the court.” Bish v. Ind. Harbor
Belt R.R., Case No. 2:15-cv-262-JD-JEM, 2016 U.S. Dist. LEXIS 156891 (N.D. Ind. Nov. 14,
2016) (citing Patterson, 281 F.3d at 681).
We begin our analysis by applying the factors articulated in Rule 26. The Court finds the
importance of the issues at stake in this action extremely high. The complaint on its face
involves, among other things, two innocent civilians who were murdered, two people who lost
their liberty for extended periods of time both of whom later had their convictions vacated, and a
high profile journalism professor accused of employing unethical investigatory tactics at the
behest of one of the nation’s most prestigious universities. The loss of liberty alone, as alleged, is
extremely significant: Porter, who was originally convicted of the murders, was sentenced to die;
and Simon, who was subsequently convicted of the same double murders, spent 15 years behind
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bars. But the importance of this case transcends the parties involved: at its core, it questions the
legitimacy of the criminal justice system as applied by the Cook County State’s Attorney’s office
and the legitimacy of the criminal justice system as questioned by Northwestern and Professor
Protess, all conducted squarely in the public eye. For these reasons, the Court finds this case to
be of utmost importance.
Moving to the amount in controversy, the Court finds this amount to be high as well.
Notwithstanding Plaintiff’s high demand, if Plaintiff prevails it will be nearly impossible to put a
price tag on the damages he sustained. The Court also considers the relative burden between
Simon, Ciolino, Protess, and Northwestern. Simon, who was incarcerated for fifteen years, is
currently unemployed and is a person of very modest financial means. Ciolino is being
represented pro bono. 1 Protess’s counsel states his financial resources are extremely limited and
the burdens placed on him based on this litigation are high, risking Protess’s ability to continue
to retain counsel. Conversely, the Court finds there is a relatively low burden on Northwestern to
produce the documents requested by Plaintiff. 2
Finally, the Court compares the parties’ access to relevant information. In the instant
case, Simon has the least access to the most relevant information. The two primary issues in this
case are why Simon was investigated and identified by defendants as the perpetrator of the
murders (i.e., was there a malicious prosecution, a series of unintended mistakes, or some other
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The Court bases this assertion upon Ciolino’s counsel’s statements made in Court.
In 2016, it was reported that Northwestern University’s endowment was $10.1 billion, ranking 8th out of the 10
“richest” colleges in the nation by CNN. Katie Lobosco, America’s 10 Richest Colleges,
http://money.cnn.com/2016/01/27/pf/college/largest-college-endowments/ (last visited Jan. 26, 2017). Additionally,
under seal, Northwestern included an engagement letter with its current counsel. (See Northwestern Mot. Opp’n,
ECF No. 205, Ex. 2.) Without disclosing the actual hourly rates, Northwestern has chosen to retain some of the most
talented legal counsel available, whose hourly rates reflect their deemed market value. Northwestern’s ability to pay
for such top notch legal services further supports this Court’s conclusion that both the actual and relative burden
related to production for Northwestern is minimal. Cf. Fed. R. Civ. P. 26 advisory committee’s notes to 2015
amendments (“[C]onsideration of the parties’ resources does not foreclose discovery requests addressed to an
impecunious party, nor justify unlimited discovery requests addressed to a wealthy party. The 1983 Committee Note
cautioned that ‘[t]he court must apply the standards in an even-handed manner that will prevent use of discovery to
wage a war of attrition or as a device to coerce a party, whether financially weak or affluent.’”)
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explanation?), and whether defendants Ciolino and Protess were acting within the scope of their
employment for respondeat superior purposes when any improper conduct occurred. Evidence
of the intricacies of the Porter/Simon investigation are controlled by the defendants. Evidence of
other relevant conduct that might inform the issue of malicious prosecution (e.g., circumstantial
evidence of intent, or lack thereof) is also almost wholly within defendants’ control. Finally, as
to the issue of respondeat superior, Northwestern has taken the position that it “lacks knowledge
or information sufficient to form a belief as to the truth or falsity of” whether Protess was acting
as an employee and agent of Northwestern at all relevant times alleged in the complaint. (See
Northwestern Answer, ECF No. 78, ¶ 15.) This issue, of course, is determinative as to the
respondeat superior claim. Of all parties, Northwestern has the greatest access to all relevant
information to answer that fundamental and extremely significant inquiry. 3 Defendants Ciolino
and Protess would also seemingly have access to some of the relevant information necessary to
litigate this matter. As to the malicious prosecution claim, both Protess and Ciolino likely have
relevant information. At least as to Protess, the ability to easily retrieve such information seems
compromised. Because Protess and Ciolino have definitively answered the question of scope of
employment (see note 3, infra), their access to relevant information to support their positions as
to respondeat superior issues is less compelling to the Court.
B.

Fed. R. Evid. 608(b) as Justification for Scope of Discovery
Plaintiff argues that the requested information will be probative of Protess’s character for

truthfulness or untruthfulness under Federal Rule of Evidence 608(b). Under that Rule,
“extrinsic evidence is not admissible to prove specific instances of a witness’s conduct in order
to attack or support the witness’s character for truthfulness. But the court may, on cross3

For his part, Protess admits that he was an employee of Northwestern at all relevant times, and was acting within
the scope of his employment. (Protess Answer, ECF No. 79 ¶ 15.) Ciolino denies being an employee of
Northwestern at the relevant times alleged in the complaint. (Ciolino Answer, ECF No. 80 ¶¶ 16, 17.)

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examination, allow them to be inquired into if they are probative of the character for truthfulness
or untruthfulness.” Id. The Court finds that an analysis under 608(b) will invite an endless
discoverable timeframe. Without specific discovery requests that particularly identify likely
608(b) evidence, allowing discovery to be guided by the potential discovery of 608(b) evidence
would result in a discovery scope that generally ignores the proportionality dictate of Rule 26. 4
A false statement made by a key witness may be a decisive point in a trial that turns the case for
one side or the other. Significant “false statements” would always meet the relevancy test, but
premising wide ranging discovery in search of such evidence would undermine the fundamental
principles of Rule 26. Therefore, the Court declines to expand the scope of discovery on the
basis of information that might be admissible under 608(b).
C.

Fed. R. Evid. 404(b) as Basis for Relevancy of Discovery Request
Simon seeks evidence relating to Protess’s and Ciolino’s other investigations into alleged

wrongful convictions, and argues such evidence may be admissible under Rule 404(b). In
particular, Simon seeks records, documents, ESI, Communications, and press releases from
Northwestern.
Under Rule 404(b), evidence of a “crime, wrong, or other act” is admissible for proving
“motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack
of accident.” 404(b) excludes relevant evidence of crimes, wrongs, or other acts to show a
person’s propensity to act or behave a certain way. Although evidence of prior acts is the most

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In a 2011 statement by Northwestern University, the Vice President acknowledged that the Jenner & Block
investigation (see supra) uncovered “numerous examples of Protess knowingly making false and misleading
statements to the dean, to University attorneys, and to others.” (See Mot. Compel, ECF No. 194, Ex A.) In light of
this concession, the Court finds unpersuasive the notion that, at this point in the litigation, Plaintiff is pursuing a
fishing expedition. That being said, the parameters of discovery should not be set by instances of false statements
made by Protess or others; defining the scope in this manner would erode the calculus of Rule 26. As discovery
continues, Plaintiff may seek more discovery as to particular false statements that might be particularly relevant to
the resolution of this matter.

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common 404(b) evidence, the Rule does not forbid the use of subsequent acts. See United States
v. Betts, 16 F.3d 748, 757 (7th Cir. 1994) (citation omitted) (“Rule 404(b), of course, does not
restrict evidence concerning the defendant’s other acts to events which took place before the
alleged crime; by its very terms, 404(b) does not distinguish between ‘prior’ and ‘subsequent’
acts.”)
Under the old Seventh Circuit jurisprudence, prior to admitting evidence at trial, a district
court was required to determine that the evidence satisfied each of four conditions:
(1) the evidence is directed toward establishing a matter in issue other than
the defendant’s propensity to commit the crime charged, (2) the evidence shows
that the other act is similar enough and close enough in time to be relevant to the
matter in issue, (3) the evidence is sufficient to support a jury finding that the
defendant committed the similar act, and (4) the probative value of the evidence is
not substantially outweighed by the danger of unfair prejudice.
Betts, 16 F.3d at 756.
In 2014, however, the Seventh Circuit abandoned the four-part test “in favor of a more
straightforward rules based approach.” United States v. Gomez, 763 F.3d 845, 853 (7th Cir.
2014). Noting the “problem of treating the ‘similarity’ and ‘timing’ factors as formal boxes to
check in the admissibility analysis,” the Gomez court held that “the importance of testing for
similarity and recency will depend on the specific purpose for which the other-act evidence is
offered.” Id. at 855-56. The Gomez court further explained that when ruling on the admissibility
of “other acts”:
[I]t’s not enough for the proponent of the other-act evidence simply to
point to a purpose in the “permitted” list and assert that the other-act evidence is
relevant to it. Rule 404(b) is not just concerned with the ultimate conclusion, but
also with the chain of reasoning that supports the non-propensity purpose for
admitting the evidence. In other words, the rule allows the use of other-act
evidence only when its admission is supported by some propensity-free chain of
reasoning.
Id. at 853 (internal citations omitted).
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The Gomez court clarified that other-act evidence is not automatically excluded whenever
a propensity inference can be drawn, “but rather, Rule 404(b) excludes the evidence if its
relevance to ‘another purpose’ is established only through the forbidden propensity inference.”
Id. at 856 (emphasis added). The Court emphasized that a “Rule 403 balancing should take
account of the extent to which the non-propensity fact for which the evidence is offered actually
is at issue in the case.” Id. at 860.
A district court, however, cannot make a meaningful balancing analysis on the
admissibility of evidence without first seeing it. As previously stated, public policy favors
access to information during discovery and it is for the district court to determine whether the
information is admissible at trial. At this stage, this Court could fathom permissible uses in
which some of the requested information might be probative under 404(b).
D. Proportionality Considerations
Based on the above, and as detailed below, the Court concludes that some of Simon’s
contested discovery requests are relevant. The Court must also consider those factors identified
in Rule 26 to properly assess the proportionality mandate of the rule. For the reasons noted
above. See supra, Section A. The Court concludes that the documents identified below are
appropriately discoverable. In reaching its conclusion, the Court is further informed by the
parties’ assertions in Court that Northwestern has already produced at least some of these
documents for other investigations, further decreasing the burden of production on Northwestern.
In light of the foregoing, and as explained in further detail below, the Court finds that some of
the discovery requests propounded by Simon satisfy Rule 26’s proportionality test at this stage of
the litigation.

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III.

Analysis
As noted supra, the point of contention in this area of discovery is the appropriate time

period for production. Simon seeks a much more expansive timeframe than Northwestern is
willing to accept. Northwestern and Protess for their part, have generally agreed to produce all
records related to the Porter / Simon investigation, and Northwestern has agreed to produce all
other responsive documents from 1995 through 1999. Simon argues, and the Court agrees, that
404(b) evidence is not limited to “prior acts,” and therefore, information of events that occurred
after the Porter / Simon investigation may be relevant to show “knowledge, intent, and/or
motivation.” (Mot. Compel, ECF No. 194, at 6.) However, the Court is not persuaded at this
point that events up to and including 2012 would be relevant in showing Defendants’
“knowledge, intent, and /or motivation” in 1999.
The Court is even more firmly convinced that proportionality factors of Rule 26 counsel
against ordering production through 2012 in light of the diminishing relevance of after-the-fact
evidence. While “other acts” that occur after an event may be relevant to showing “knowledge”
or “intent” at the time of the event, there is a steadily diminishing value of relevance under
404(b) the further out in time the “other acts” occur. See generally, Gomez, 763 F.3d at 855-56,
and cf. United States v. Serlin, 707 F.2d 953, 959 (7th Cir. 1983) (admitting subsequent other act
evidence to show willfulness where there is no “hiatus” between the charged conduct and the
other act evidence); United States v. Farris, 517 F.2d 226, 229 (7th Cir. 1975) (subsequent other
act evidence appropriately admitted where conduct is similar in nature to charged offense and no
hiatus between charged conduct and other act evidence); United States v. Ayers, 924 F.2d 1468,
1474 (9th Cir. 1991) (subsequent acts admissible under 404(b) where subsequent acts occurred
with three years of charged conduct).

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A. Malicious Prosecution Related Discovery
First, Simon compels documentation that he contends will be relevant to the malicious
prosecution claim. Simon argues that the communications regarding other investigations will
show Defendants knew of the impropriety of their conduct, but continued it anyway. (Mot.
Compel, ECF No. 194, at 6.) More specifically, Plaintiff believes the documents will be
probative of Defendants’ “knowledge that the evidence they created against Plaintiff was
improperly obtained [and] intention to create false evidence against Plaintiff despite that
knowledge.” (Id.) Depending on the type of information produced in discovery, the Court agrees
that future investigations might be probative of Defendant’s knowledge and intent, or lack
thereof, in the commencement or continuance or a criminal proceeding, the absence of probable
cause, or the presence of malice.
To establish a malicious prosecution claim, “the plaintiff must [prove] facts showing: (1)
the commencement or continuance of an original criminal or civil judicial proceeding by the
defendant; (2) the termination of the proceeding in favor of the plaintiff; (3) the absence of
probable cause for such proceeding; (4) the presence of malice; and (5) damages resulting to the
plaintiff.” Swick v. Liautaud, 662, N.E.2d 1238, 1242 (Ill. 1996). As explained in further detail
below, because some of Simon’s discovery requests are geared towards establishing elements of
his malicious prosecution claim by relying on 404(b) evidence, we believe that Simon’s requests
are geared at relevant information.
B.

Employment Related Discovery
Simon also seeks discovery of documents relating to Protess’s and Ciolino’s employment

with Northwestern.

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Plaintiff argues that requests for documents relating to Protess’s and Ciolino’s
employment might produce probative evidence of a claim, or lack thereof, of respondeat superior
liability. Under that theory, an employer is liable for the torts of his employee that are
committed within the scope of the employment. Bagent v. Blessing Care Corp., 862 N.E.2d 985
(Ill. 2007). An employee commits a tort within the scope of employment when “‘it is of the kind
he is employed to perform; it occurs substantially within the authorized time and space limits;
[and] it is actuated, at least in part, by a purpose to serve the master.’” Id. at 164 (quoting
Restatement (Second) of Agency § 228 (1958)). Simon argues that the documents will be
probative of Defendants’ “motivation to utilize [false] evidence [against Plaintiff] to garner
prestige and notoriety for Defendants.” (Mot. Compel, ECF 194, at 6.) In his complaint, Simon
alleges that “at all relevant times, Protess was acting as an employee and agent of Northwestern,
and was further acting within the scope of his employment with Northwestern.” (Compl., ECF
No. 1, ¶15.) As stated above, Northwestern answered that it “lacks knowledge or information
sufficient to form a belief as to the truth or falsity of the[se] allegations.” (Northwestern Answer,
ECF No. 78.) By taking this position, Northwestern has expanded the scope of relevant
discovery, as events that occurred after Simon’s investigation could be relevant to determining
whether Protess acted within the scope of his employment during the Porter / Simon
investigation. Plaintiff argues inter alia that the requested discovery will inform “the aftereffect
the [Simon] case and/or Protess and his class had on the university,” Northwestern’s knowledge
of Protess’s activities, and whether Northwestern authorized Protess and Ciolino’s conduct.
(Mot. Compel, ECF 194, at 11 – 12.) As explained in further detail below, because some of
Simon’s discovery requests are geared towards establishing elements of his respondeat superior
claim as to Northwestern, we believe that Simon compels relevant information. Because such

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information (if it exists) may be direct evidence of respondeat superior liability, or admissible
under other evidentiary theories. See supra, discussion of Rule 404(b).
C. Scope of Discovery
Yet, this Court is not tasked with ruling on the admissibility of evidence. Rather, the
issue is scope of discovery. Considering the evidentiary limitations noted above, and the
proportionality considerations under Rule 26, we believe that Simon is generally entitled to
documents through the end of 2005 to allow him to fairly explore whether subsequent acts
committed by Protess and/or Ciolino and/or Northwestern inform their respective intents as to
the investigation surrounding the Plaintiff and Protess’s employment status.
We recognize that the December 31, 2005 date may seem somewhat arbitrary. However,
based on the allegations contained in the Complaint, this timeframe would allow Plaintiff to
explore aspects of the Armando Serrano and Anthony McKinney investigations, as well as
Northwestern’s awareness, statements, and possible affirmation of the Porter / Simon
investigation (ECF 79, ¶¶133, 134). Based on limited discovery of these matters, Plaintiff will
have the opportunity to demonstrate that broader discovery is warranted. Similarly,
Northwestern will not be forced to produce a wider scope of discovery without further
justification being presented to the Court.
The cases Protess and Northwestern cite to fend off discovery are inapposite because they
focus on admissibility of evidence at trial; that is, after the evidence was revealed during
discovery. See, e.g., Gomez, 763 F.3d at 862; Betts, 16 F.3d at 756; Jankins v. TDC Mgmt.
Corp., Inc., 21 F.3d 436, 440-41 (D.C. Cir. 1994). Admissibility of requested discovery is not a
requirement to justify the request. See Rule 26(b)(1) (“[i]nformation within this scope of
discovery need not be admissible in evidence to be discoverable”).

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During the last hearing, the Court began to orally articulate its findings from the bench.
However, as stated on the record, the Court is issuing this written opinion as its resolution to the
motion to compel. The Court has taken into consideration the oral arguments presented by the
parties and has revisited the factual record. In light of the Court’s review of the information
provided to it by the parties and arguments presented, the Court has amended its preliminary oral
statements made at the status hearing. For all purposes, this written opinion controls the Court’s
findings and rulings.
IV.

Particular Discovery Requests

A.

Ciolino’s Contention Interrogatories
We begin by examining Plaintiff’s motion to compel as to Ciolino’s contention

interrogatories. As Simon’s counsel made clear at the hearing in this matter, Ciolino has not
filed any response to the motion to compel. Simon argues that Ciolino’s failure to respond
constitutes waiver. The Court disagrees. First, considering the quality of all counsel involved, it
seems highly unlikely that any counsel in this matter would waive a position by intentionally
simply failing to respond. Second, while Plaintiff’s counsel appeared to have attempted to
engage in discussions regarding the adequacy of Ciolino’s responses to the contention
interrogatories, there does not appear to have been robust compliance with Local Rule 37.2.
Pursuant to Local Rule 37.2, a court shall refuse to hear motions for discovery and production of
documents unless the motion includes a statement the parties were unable to reach an agreement
after “consultation in person or by telephone and good faith attempts to resolve differences they
are unable to reach an accord, or counsel’s attempts to engage in such consultation were
unsuccessful due to no fault of counsel’s.” Local Rule 37.2. See EEOC v. Star Transp., Inc., No.
13-cv-1240, 2014 U.S. Dist. LEXIS 115671 at *4 (C.D. Ill. Aug. 20, 2014) (denying a motion to

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compel an interrogatory because defendant did not follow the meet and confer provisions of the
Rule 37). The Court’s standing order explicitly states:
The Court believes that parties can and should work out most discovery disputes.
The Court will not hear or consider any discovery motions unless the parties have
complied with the meet-and-confer requirement under Local Rule 37.2. Any
discovery motion must state with specificity when and how the movant complied
with Local Rule 37.2.

Simon has not indicated to the Court whether he engaged in a proper meet and confer in
compliance with the above stated Rules. Based on this procedural deficiency, the Court denies
Plaintiff’s motion as to Ciolino, without prejudice to renewal after fully complying with Local
Rule 37.2.
B.

Motion to Compel as to Protess
In his response to the motion to compel, Protess argues that searching for all the

documents contained in Plaintiff’s motion to compel “will be extremely costly” and burdensome
for him as he is “retired and living on limited means.” (Protess Mot. Opp’n, ECF No. 209, at 4.)
Protess has agreed to produce those records he has related to the Porter/Simon investigation, but
objects to the broader production sought by Plaintiff. (Id. at 3-4.) Finally, Protess notes that the
“documents” he possesses are all in electronic format, and would therefore require additional
costs of uploading and searching. (Id. at 4.)
Protess correctly notes that Rule 26 requires this Court to consider the proportionality of
the requested discovery; that is consider the burden as well as the possible benefits of producing
the requested discovery. Considering these factors, Protess’s willingness to produce those
documents that are most clearly relevant to the litigation, and Protess’s obligation to retain
electronic records for the duration of this litigation (thus making them available for later, more
focused discovery requests), the Court denies Plaintiff’s motion to compel as to Protess, without
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prejudice to being renewed in the future. See Fed. R. Civ. P. 37(e) (describing repercussions for
failing to preserve electrically stored information).
C.

Motion to Compel as to Northwestern
Northwestern raises numerous objections as to the scope of documents and ESI Simon

seeks. First, Northwestern objects to the length of the discoverable time period as contemplated
by Simon. Plaintiff requests discovery beginning as early as 1995 and as late as 2012. In some
instances, Plaintiff makes requests without any time limitation at all. Northwestern has agreed to
produce documents from 1995 (when Protess’s classes began investigating wrongful
convictions) through 1998-99 (the time period when Protess’s class investigated the Porter and
Simon cases). (Northwestern Mot. Opp’n, ECF No. 205, “hereinafter “NU Mot.” at 6)
Northwestern has also agreed to produce documents that refer to Porter or Simon without any
time period limitation. Northwestern has also agreed to produce documents relevant to the Ford
Heights Four Matter. (1/23/17 Hr’g Tr. at 76.) Northwestern argues all other documents outside
this time frame are irrelevant to this litigation. For the reasons stated herein, the Court disagrees
with this broad assertion as to all discovery requests at issue in this motion, but acknowledges
that some of the discovery requests pressed by Simon are not proportional to the needs of the
case at this juncture.
1.

Motion to Compel the Production of Documents Relating to Northwestern’s
Marketing Materials, Gifts to Northwestern, and Awards; RFPs #23, #24,
#25, #33, #44, and #48

RFP #24 requests: “[a]ll documents which reflect donations, contributions, and/or
endowments made to Medill from 1995-2012.” RFP #24 is denied because it seeks discovery
into Medill’s realized financial benefits from Protess’s work. However, whether Medill actually
benefitted from Protess’s investigations only marginally informs Protess’s intent, or lack thereof,

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under a respondeat superior theory. In other words, even if Protess had a specific intent to
benefit Northwestern, whether Northwestern captured any of that benefit has minimal relevance
into Protess’s state of mind, or in this case, his actual intent to benefit Northwestern.
Accordingly, RFP #44 is also denied. RFP #44 requests: “[a]ll documents reflecting
Northwestern sales of books authored or co-authored by Protess or Ciolino from 1995 through
2011, including without limitation, books sold at the Norris bookstore.” The Court finds that
records of book sales, as requested by RFP #44, would have even less bearing on Protess’s intent
than the documents compelled in RFP #24. Plaintiff justifies this request because this
information may show a benefit to Northwestern as well as “knowledge of Defendants’
misconduct.” (Mot. to Compel, ECF 194, p. 12.) The after-the-fact sale of Protess’s and
Ciolino’s books has little bearing on the intent of either individual to benefit Northwestern at the
relevant time period. Moreover, Northwestern’s “knowledge” of the contents of Protess’s book
does not rise or fall on the number of books sold at its campus bookstore. Considering the
exceedingly marginal relevance compared to the burden of production, the Court denies RFP
#44.
RFP #23 requests: “[a]ll documents related to or referring to any contemplated or
completed books and/or movies discussing Protess and/or the cases of Anthony Porter or Alstory
Simon.” RFP #48 requests: “[a]ll statements made to the media or any news outlet regarding the
Medill Innocence Project, Protess, Ciolino, Alstory Simon or Anthony Porter from 1995 through
2011.” The Court limits RFP #23 and #48 to the years 1995 through 12/31/2005 for the reasons
noted above.
RFP #25 requests: “[a]ll Northwestern publications, marketing materials, and other
documents requesting donations and/or contributions or any form of financial commitment, that

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refer to Protess, Protes’ investigative journalism class, the Medill Innocence Project, and/or
Anthony Porter. This request includes, but is not limited to, emails and website pages.” The
Court limits the production in RFP #25 to “Medill publications marketing materials, and other
documents requesting donations and/or contributions or any form of financial commitment. . .”
from the years “1995 through 12/31/05,” and general email solicitations as opposed to a
comprehensive search for “all emails.” Without these limits, the Court finds that the burden of
production on Northwestern for these documents from the entire University without a time
limitation is disproportionate to the needs of this case. Limiting the scope of RFP #25 will lessen
the burden and increase the likelihood that the responsive documents contain relevant
information.
RFP #33 requests: “[a]ll documents or other materials referring to awards given to
Protess, Ciolino, and/or the Medill Innocence Project from 1995-2012.” RFP #33 is modified to:
“[a]ll documents or other materials generated or published by the Medill School of Journalism
referring to awards given to Protess, Ciolino, and/or the Medill Innocence Project from 1995
through 12/31/05.” For the same reasons that we have limited RFP #25, we believe that the
limitations in RFP #33 are appropriate to achieve proportionality.
RFP #48 requests: “[a]ll statements made to the media or any news outlet regarding the
Medill Innocence Project, Protess, Ciolino, Alstory Simon or Anthony Porter from 1995 through
2011.” The Court modifies RFP #48 to exclude e-mails, and limit the timeframe from 1995
through 12/31/05. Furthermore, the Court understands RFP #48 to compel official statements
made by the University regarding the identified topics. Northwestern does not need to search its
entire database for stray communications. Without these modifications, the Court believes that
proportionality is not properly achieved.

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2.

Motion to Compel the Production of Documents Relating to Other
Investigations, MIP Course Materials, and Payments to Protess; RFPs #18,
#30, #32, #36, and #57

To the extent the parties have not otherwise agreed, the Court limits RFPs #18, #30, #32,
and #36 to the years 1995 through 12/31/05 for the reasons noted above. Additionally, the Court
identifies other modifications to these requests below.
RFP #32 requests: “[a]ll documents which reflect the course syllabus, course description,
course handouts and/or course outline for any investigative journalism class taught by Protess
from 1995-2005.” RFP #32 is modified to “all course syllabi, course descriptions, course
handouts and/or course outlines for any investigative journalism class taught by Protess from
1995 through 12/31/05.” The Court believes removing the language “[a]ll documents which
reflect” will lessen Northwestern’s burden of production; it is likely that copies of standard
course documents are kept in the ordinary course of business and thus production of the
aforementioned documents would not require an extensive search. RFP #36 requests: “[a]ny and
all documents related to or reflecting any payments to Protess or Ciolino for the reimbursement
of expenses, including without limitation, expense reports.” The Court limits RFP #36 to only
expense reports from the years 1995 through 12/31/05 submitted by or on behalf of defendants
Protess and/or Ciolino. If, based on the expense reports produced from 1995 through 12/31/05,
the parties find the need to expand the request for additional documentation, they can make a
request with the Court at a later date if the parties cannot otherwise reach an agreement.
Northwestern states it has produced Ciolino’s expense reports. The Courts orders Northwestern
to produce Protess’s expense reports for the years 1995 through 2005. RFP #57 requests: “All
documents reflecting any expenses submitted by David Protess to Northwestern and/or Medill

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from 1995 through 2011.” RFP #57 is denied. In light of the production ordered in RFP #36, the
Court finds this request unduly burdensome based on its limited potential for relevancy.
3.

Motion to Compel the Production of Documents in Response to RFPs #11
#12, #40

RFP #11 requests: “[a]ll documents that relate to, or have as their subject matter, any
communication between Protess, Ciolino, and/or Rimland regarding the Alstory Simon case, the
Anthony Porter case, Protess, the Medill Innocence Project, and/or any investigation or review of
the aforementioned cases. RFP #12 requests: “[a]ll documents relating to or referring to any
statements made by Dean Michael Janeway or an investigation conducted by Dean Michael
Janeway regarding Protess, Ciolino, Protess’ investigative journalism class, and/or the Medill
Innocence Project.” These requests are denied as being overbroad, and therefore unduly
burdensome in light of the production already agreed to by defendants Protess and Northwestern.
RFP #40 requests: “[a]ny and all documents relating to Protess’ employment with
Northwestern, including without limitation, all documents relating to his compensation, tenure
proceedings, disciplinary actions, evaluations, investigations of misconduct, complaints of
misconduct and any other documents contained within his personnel file and/or disciplinary
file.” RFP #40 is modified as follows: “documents relating to Protess’ employment with
Northwestern, limited to documents reflecting his compensation, tenure proceedings, disciplinary
actions, evaluations, investigations of misconduct, complaints of misconduct, his personnel file
and/or disciplinary file.” These modifications reduce the burden to Northwestern as these
documents are likely maintained in a central location, and will not require extensive searching by
Northwestern. The relevance and potential importance of these is self-evident. This order is not
intended to address any claim of privilege that would justify withholding any of the requested
documents.
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4.

Motion to Compel as to RFPs #14, #15, #16, #20, # 21, #22, #31, #37, #38, #43,
#45, #49, and #56; Interrogatories #3, #4, #12

Northwestern states that it has produced all documents it has located after a reasonable
search responsive to RFPs #14, #15, #16, #20, #21, #22, #31, #37, #38, #43, #45, #49, and #56.
(See NU Mot., p. 21.) The Court denies the motion to compel as to these RFPs because, as
Northwestern correctly states, “Northwestern cannot be compelled to produce materials it . . . has
already produced.” 5 (Id. p. 22.) Similarly, Northwestern indicates that it has responded to
Interrogatories #3, #4, and #12 by producing documents. (Id. (citing Fed. R. Civ. P. 33(d)(1)).
Based on Northwestern’s representations, Simon’s motion to compel as to these interrogatories is
also denied as moot. (See Mot. Comp., ECF 194, n. 4.)
5.

Motion to Compel Northwestern to Comply With ESI Proposal

In an undeveloped fashion, Simon also raises the issue of Northwestern’s failure to
respond to electronically stored information (“ESI”) requests. (See id. at p. 15.) Because we
find the argument not fully developed, the Court does not believe it is in a position to resolve the
issue. For the time being, therefore, Simon’s motion as to ESI is denied without prejudice.
In the interest of providing some guidance on the issue, however, the Court notes the
following: Northwestern provides some background as to the parties’ attempt to resolve the ESI
issues. (See NU Mot. p. 22.) Relying in part on this information, the Court notes that the
concerns noted by Northwestern as to the non-existence of ESI for particular proposed
custodians, or the timeframe that particular proposed custodians joined Northwestern, should not
5

In reaching this conclusion, the Court understands Northwestern’s response to mean that it has not limited its
search to “some undisclosed criteria.” (Pl. Reply to Mot. Com., ECF 222, p. 14.) Plaintiff suggests that
Northwestern must have “abandoned its objections” in responding to this RFP to be fully compliant with it. Id. The
Court does not agree. Northwestern can still maintain its objections as to privilege and work-product (see Mot.
Comp. Ex. B, ECF 194-3, p. 20, ¶¶2, 3, and 4 (asserting inter alia privileges and work-product doctrine)). Barring
those objections, the Court understands Northwestern has otherwise fully responded to these RFPs. If this is not the
case, the Court expects Northwestern to appropriately advise the Court of this fact. Additionally, Northwestern is
reminded of its obligation to specifically identify whether documents are being withheld based on any asserted
privilege. See Fed. R. Civ. P. 26(b)(5).

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be hurdles to resolving the ESI issues. Relying on Northwestern’s own words, “Northwestern
cannot be compelled to produce materials it does not possess . . .” (Id. at pp. 21 – 22.) That said,
both parties should work towards reasonable ESI search terms and scope. ESI discovery is not
unlimited and subject to those considerations identified in Rule 26. See Fed. R. Civ. P.
26(b)(2)(B). Hopefully, the counters and considerations contained in this ruling will assist the
parties in resolving the appropriate scope of ESI discovery without the need for extensive court
intervention.
Conclusion
For the foregoing reasons, the Court grants in part, and denies in part, the motion to
compel as to Northwestern. The motion as to the requests for ESI is denied, without prejudice.
The Court denies Plaintiff’s motion as to Ciolino, without prejudice, subject to renewal after
fully complying with Local Rule 37.2. The Court denies Plaintiff’s motion to compel, without
prejudice as to Protess.

SO ORDERED.

ENTERED: February 3, 2017

_______________________________
M. David Weisman
United States Magistrate Judge

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