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HOBLEY v. CHICAGO POLICE COMMANDER

April 20, 2004.

MADISON HOBLEY, Plaintiff,
v.
CHICAGO POLICE COMMANDER JON BURGE, et al., Defendants



The opinion of the court was delivered by: GERALDINE SOAT BROWN, Magistrate Judge

MEMORANDUM OPINION AND ORDER

Before the court are Plaintiff's Fourth Motion to Compel [dkt 112] and Defendant City of Chicago's Cross-Motion for Protective Order. [Dkt 110.] Plaintiff Madison Hobley seeks to compel the production of certain documents. The City seeks a protective order to avoid the production of those documents, arguing that the documents are protected by attorney-client privilege and work product protection, and that some of the documents are subject to a protection involving grand jury proceedings. Plaintiff argues that any privilege or protection associated with the documents has been waived, and that there is no applicable grand jury secrecy that the City can invoke. For the reasons set out herein, Plaintiff's Motion is GRANTED and the City's Cross-Motion is DENIED, except as to document SP 143687, as to which Plaintiff's Motion is DENIED and the City's Cross-Motion is GRANTED. Factual Background

1. The January 2004 production to Plaintiff's counsel.

  Unraveling the convoluted history of the disputed documents has taken two motions and four briefs totaling almost three inches. A few facts are relatively undisputed. During the week of January 19, 2004, Plaintiff's counsel reviewed certain documents at the offices of the City's counsel. The disputed documents were among them. The documents were all Bates-numbered at the time Plaintiff's counsel saw them. The parties dispute whether the Bates numbers were sequential. The documents were in 61 sequentially-numbered boxes. By letter dated January 23, 2004, Plaintiff's counsel listed the Bates numbers of the documents to be copied. (Pl.'s Mot., Ex. D.) The list included the disputed documents. The City states that it copied the listed documents on January 30, 2004, but suggests that the City withheld the documents subject to tender to the individual defendants' counsel for redaction of confidential material. (City's Cross-Mot, at 6.) However, Plaintiff's counsel states that three boxes containing the listed documents, including the disputed documents, were delivered to Plaintiff's counsel's office on January 30, 2004. (Pl.'s Mot. ¶ 15.) According to Plaintiff's counsel, the City's counsel then called and stated that the City had neglected to stamp certain of the documents "confidential." The City had the three boxes picked up again on that same day, January 30, 2004. (Pl.'s Mot. ¶¶ 16-17.) Sometime between January 3 0 and February 4, the City's attorneys reviewed the documents that had been copied for Plaintiff and realized that they included documents that the City did not intend to produce. The City refused to produce the disputed documents and apparently withheld production of any of the documents that Plaintiff's counsel had listed until this court entered an order on February 24, 2004, that the undisputed documents be produced by March 3, 2004. (Order, Feb. 24, 2004.) [Dkt 126.] The present motions ensued. The City listed the disputed documents on a privilege log attached as Exhibit I to its Cross-Motion, and a revised privilege log as Exhibit E to its Reply in Support of its Cross-Motion. [Dkt 136.]

  2. The December W, 2003 hearing.

  Another piece of history is background to these motions. On November 10, 2003, the City was ordered to serve a privilege log by December 2, 2003 as to any documents that the City intended to withhold on the ground of any privilege or work product protection, including any governmental privilege. (Order, Nov. 10, 2004.) [Dkt 63.] Having not received any privilege log, Plaintiff's counsel subsequently moved for a finding of waiver. (Pl.'s Mot. Finding Waiver.) [Dkt 81.] At the hearing on that motion on December 10, 2003, the City's counsel advised the court that none of the documents that the City had been ordered to produce were being withheld on the basis of privilege. (Pl.'s Mot., Ex. A., Tr. Dec. 10, 2003 at 45, 52-53.)*fn1 Plaintiff's motion for a finding of waiver was held to be moot on the basis of the City's representation. (Id. at 52.) It was recognized that documents covered by District Judge Aspen's order of September 11, 2003 staying policy (or "Monell") discovery had not been ordered to be produced. (Id. at 53-54.)

  The stay of Monell discovery has now been lifted (Order, March 22, 2004) [dkt 144], but the distinction remains significant for determining what was included in the City's December 10, 2003 express waiver of privilege. The City argues that it did not waive its privileges regarding the disputed documents because they were covered by the stay order.

  3. The disputed documents.

  The City's description of the history of the disputed documents has been vague and confusing, inexplicably so in light of the fact that the City's retained counsel presumably keep time records. As further discussed below, the City has failed to provide specific, factually supported information to demonstrate that it maintained the confidentiality of the disputed documents. Indeed, the record supports the opposite conclusion.

  The City's Cross-Motion described the following scenario. The documents produced to Plaintiff's counsel (except, the City claims, the disputed documents) relate to a 1996 Police Board proceeding entitled City of Chicago v. Surge, et al., involving defendant Jon Burge, in which the law firm Jones Day represented the City. (City's Cross-Mot, at 4.) On October 22, 2003, the City's current attorneys, Hinshaw & Culbertson, wrote to Plaintiff's counsel advising that "we are aware of between 50 and 60 boxes of records that relate to the police board hearing involving Jon Burge and allegations made by John Burge. While we do not believe those materials directly relate to Madison Hobley, we will be glad to make them available for your inspection-Given the volume of materials, we did not want to simply have them copied at your expense." (City's Cross-Mot., Ex. E, Oct. 22, 2003 Puiszis Letter to Loevy at 2.) After the Hinshaw firm received the documents from the Jones Day firm, the documents were "attorney reviewed" by the City's present counsel, Bates-numbered, duplicated and stored in numbered boxes in the City's counsel's storage room. (Cross-Mot., Ex. C, Aff. Robert T. Shannon ¶ 2.) The Jones Day documents (but not the disputed documents) were reviewed by counsel for the individual defendants in both this case and another pending lawsuit. (Shannon Aff. ¶ 3.) After that review, a Hinshaw paralegal erroneously affixed a "Jones Day" label to two boxes of documents from Hinshaw's files, and included those two boxes among the 61 boxes reviewed by Plaintiff's counsel. (Shannon Aff. ¶ 6.)

  Plaintiff's Reply observed a flaw in that apparently straight-forward story. The boxes containing the disputed documents were boxes 56 and 57, and, according to Plaintiff's counsel, all of the documents produced to Plaintiff were sequentially numbered from box l through box 61. (Pl.'s Combined Reply at 4.) Thus, Plaintiff argues, under the City's scenario, the disputed documents must have been part of the production to counsel for the individual defendants, reinforcing the conclusion that any privilege or protection has been waived. (Id.)

  The City does not deny that the disputed documents were Bates-numbered when they were produced to Plaintiff's counsel. The Bates numbers of the disputed documents are not clustered at the end of the documents produced, and are in the number range of other documents that were the subject of a motion more than a month before the January 2004 production to Plaintiff's counsel.*fn2 At the initial hearing on the present motions, the City was expressly asked to answer specific questions, including the following: "When were the documents that are in dispute Bates stamped? Were they Bates stamped prior to submission to the individual defendant's [sic] counsel? . . . Whether attorneys for other individuals who are defendants in another case but not in this case reviewed the documents prior to production to the plaintiff's counsel, . . ." (City's Reply, Ex. H, Tr. Feb. 24, 2004 at 6-7.)

  Notably, the City has never provided specific answers to those question s.*fn3 Similarly, the City has not specified the date on which the City's current counsel received the documents from Jones Day or when they conducted the "attorney review" that is discussed repeatedly in the City's briefs. (City's Cross-Mot, at 1, 4-5; City's Reply at 2.) At the first hearing, the City was also told that its privilege log did not conform to the well-established requirements set out in Allendale Mut. Ins. Co. v. Bull Data Systems, Inc., 145 F.R.D. 84 (N.D. Ill. 1992). (Tr. Feb. 24, 2004 at 15.) The revised privilege log submitted by the City did not provide the specific information required.*fn4 Instead, in its Reply, the City added a new twist. The City stated:

  When the Jones Day documents and other boxes of records were originally received by Hinshaw for production to the Special Prosecutor, they were all sent to Merrill Duplication to be copied. The Special Prosecutor requested, and received, the originals of these documents. To ensure an accurate record, the documents were also Bates-stamped during the duplication process-well before the current lawsuit was filed. When the copy service performed those functions, they did not sequentially Bates-stamp the Jones Day boxes in one entire grouping; rather, there were other boxes of records delivered for duplication with the Jones Day boxes in the process of copying and Bates stamping the records. (City's Reply at 17) (footnotes omitted) (emphasis added).*fn5 This was asserted by the City in support of its argument that the 61 boxes were not in consecutive Bates number order. (Id. at 17 n.8.)

  That twist created more problems than it solved for the City. Plaintiff's counsel then argued that any privilege had been waived by the repeated production of the disputed documents: to Plaintiff's counsel; to the individual defendants' counsel; and, at some unspecified earlier date, to the Special Prosecutor appointed by the Chief Judge of the Criminal Court.*fn6 (Pl.'s Sur-Reply at 25.) [Dkt 145.] In addition, Plaintiff submitted an affidavit stating that one of the individual defendants' counsel had advised Plaintiff's' counsel that he did not know "one way or the other" whether the disputed documents had been reviewed by the individual defendants' counsel. (Pl.'s Sur-Reply, Ex. H.)

  The City was granted leave to file a Response to Plaintiff's Sur-Reply. [Dkt 147.] That Response did not include any verification for any of its factual assertions. In its Response, the City argued that "the vast majority" of the disputed documents were not produced to the Special Prosecutor. (City's Resp, at 1.) Notwithstanding the fact that all of the disputed documents are Bates-numbered "SP ___" and were admittedly among the documents processed by Merrill Duplication for production to the Special Prosecutor, the City asserted that only some of the disputed documents were actually produced to the Special Prosecutor. The City did not include any evidentiary support for that assertion. Regarding the production to the individual defendants' counsel, ...


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