Hill v. City Of Harvey et al

Filing 129

MEMORANDUM Opinion and Order Signed by the Honorable Jeffrey Cummings on 11/20/2019.(rbf, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
Ezra Hill,
Plaintiff,
v.
City of Harvey, et al.
Defendants.

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No. 17 C 4699
District Judge Charles P. Kocoras
Magistrate Judge Jeffrey Cummings

MEMORANDUM OPINION AND ORDER
Motion hearing held on plaintiff’s motion to compel discovery from defendant Murillo
[121]. For the reasons stated below, and on the record in open court, plaintiff’s motion to
compel is granted. Defendant Murillo shall provide amended responses to plaintiff’s First Set of
Interrogatories by 12/10/19. Defendant Thomas shall respond to outstanding discovery requests
by 11/26/19. Status hearing set for 12/19/19 at 10:00 a.m.
BACKGROUND STATEMENT
Plaintiff Ezra Hill has sued the City of Harvey, two Harvey police officers, Cook County,
and Cook County Assistant State’s Attorneys Thomas Reardon and Ed Murillo pursuant to 42
U.S.C. § 1983 for malicious prosecution and false arrest. Hill’s claims arise out of his arrest and
prosecution for an attempted murder that took place on March 12, 2014. A jury found Hill not
guilty on March 8, 2017. This action followed.
Discovery in this matter is ongoing. On April 5, 2019, Cook County produced a “Fact
Sheet” documenting the events leading to the approval of a warrant for Hill’s arrest. (Dkt. 121 at
Ex. A.) The Fact Sheet revealed that on March 20, 2014, Assistant State’s Attorney Murillo (1)
obtained a McDonald’s surveillance video; and (2) described the video as showing Hill ordering

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food at McDonald’s moments after the shooting. (Id. at 11.) It is undisputed that Murillo
approved the arrest warrant for Hill on March 20, 2014 and that he subsequently approved felony
charges against Hill on September 3, 2014.
Plaintiff took Murillo’s deposition on September 30, 2019 and questioned him about the
McDonald’s video. Despite having reviewed the video in advance of the deposition, Murillo
denied plaintiff’s counsel’s repeated requests to identify Hill in the video at the deposition.
According to Murillo, he could not identify Hill without also reviewing all of the reports and
information he would have reviewed back in 2014 before approving the charges against Hill.
Two days after the deposition, plaintiff served Murillo with three interrogatories asking
that Murillo identify where in the video he contends that Hill is shown and to identify each
document he relied on to assist in his identification. Murillo responded to each interrogatory
with the following response:
Defendant objects to Interrogatory no. [1-3] because it is harassing in that it was
previously asked at Defendant’s deposition on September 30, 2019. Without waiving
said objection, Defendant states that he has nothing to add to his deposition testimony at
this time. See transcript of Deposition of Ed Murillo, September 30, 2019.
(Dkt. 121 at Ex. E.) Plaintiff subsequently filed the instant motion to compel, seeking an order
compelling Murillo to provide adequate, non-evasive answers to the interrogatories. For the
reasons that follow, plaintiff’s motion is granted.
ANALYSIS
First, although the Court does not view Murillo’s responses as intentionally evasive, his
attempt to respond by referring plaintiff back to his deposition testimony is insufficient to fulfil
his responsibility under Federal Rule of Civil Procedure 33. Under Rule 33, answers to
interrogatories must be “complete, explicit and responsive.” Brock v. Hooker Chem. & Plastics
Corp., No. 83 C 8383, 1985 WL 2120, at *1 (N.D. Ill. July 24, 1985), quoting Milner v. National
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School of Health Technology, 73 F.R.D. 628, 632-33 (E.D. Pa. 1977); Trane Co. v. Klutznick, 87
F.R.D. 473, 476 (W.D. Wis. 1980) (“Under Rule 33 of the Federal Rules of Civil Procedure, a
party must give full and complete answers to interrogatories served on him by another party.”) It
is well-settled that “[i]ncorporation by reference to a deposition is not a responsive answer.”
Hoffman v. United Telecommunications, Inc., 117 F.R.D. 436, 440 (D. Kan. 1987); Brock, 1985
WL 2120, at *1; Starlight Int'l Inc. v. Herlihy, 186 F.R.D. 626, 640 (D. Kan. 1999) (“A party
may not properly answer an interrogatory by referring generically to testimony given upon
deposition”); Dana Corp. v. Am. Standard, No. 3:92-CV-581RM, 1994 WL 228537, at *1 (N.D.
Ind. Apr. 15, 1994) (explaining that answers to interrogatories “should not refer to the pleadings,
or to depositions…or to other interrogatories, at least where such references make it impossible
to determine whether an adequate answer has been given without an elaborate comparison of
answers.”) (internal quotation marks omitted) (citing cases). In sum: Murillo’s attempt to
respond with a generic reference to his deposition transcript falls short.
Second, even if Murillo could properly levy an “asked and answered” objection to these
interrogatories, see e.g. Starlight, 186 F.R.D. at 640 (contemplating such an objection may be
appropriate under some circumstances if the information sought is duplicative), a review of the
relevant portions of the transcript reveals that Murillo did not answer these questions at his
deposition. Instead, as explained above, Murillo responded that he could not identify Hill in the
video without first reviewing the reports and information he would have reviewed in 2014 before
approving the charges. It is well-settled that Murillo “cannot answer [an] interrogatory simply
by referring [plaintiff[ to an equally unresponsive answer.” Kleppinger v. Texas Department of
Transportation, No. 5:10-CV-124, 2013 WL 12138545, at *4 (S.D. Tex. Jan. 3, 2013) (internal
quotation marks omitted) (citing cases).

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Consequently, plaintiff’s motion to compel is granted. Murillo is directed to review the
underlying case file that remains in Cook County’s possession to determine whether he can
identify Hill in the McDonald’s video and, if so, which documents he relied on to make that
identification. If Murillo is unable to identify Hill in the video even after his review of the file,
he must state this in his sworn interrogatory answers. These are his only options.

Dated: November 20, 2019
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Magistrate Judge Jeffrey Cummings

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