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HOBLEY v. CHICAGO POLICE COMMANDER JON BURGE

November 16, 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 is the Plaintiff's Fifth Motion to Compel [dkt 249]. For the reasons set out below, that motion is granted in part and denied in part, as set out herein.

BACKGROUND

  A. This motion in the context of prior rulings.

  The present motion is one of a series by plaintiff Madison Hobley ("Hobley") relating to responses by defendant the City of Chicago ("City") to Hobley's First Set of Requests for Production to the City. That Set of Requests was served in July 2003. (Pl.'s Second Mot. Compel, Ex. A, First Set Requests for Production.) [Dkt 39.] This opinion will assume familiarity with the opinions and orders issued on the previous motions. See, e.g., Orders of Oct. 14, 2003 [dkt 50], Nov. 10, 2003 [dkt 63], April 20, 2004 [dkt 158]. The present motion contests the City's assertion of attorney-client privilege or work product protection as to certain documents listed on a privilege log served on May 17, 2004. (Pl.'s Fifth Mot. Compel, Ex. I, Privilege Log.) After an initial court hearing on the motion and an additional conference between counsel for the parties, the parties resolved some of the issues. The City's counsel subsequently produced some of the documents that had initially been withheld and served a revised privilege log. (Def.'s Resp., Ex. 1, Privilege Log.) At that initial hearing, the court summarized the results of the previous rulings into a number of principles governing the City's responses to Hobley's First Set of Requests for Production, concluding that:
to assert successfully privilege or work product protection as to any document in the City's possession, custody or control, the City must establish all three of the following:
A. That the document was covered by the stay on Monell discovery; and
B. That the document was never produced by the City or anyone on its behalf to the Special Prosecutor (or to anyone else whose access would destroy the confidentiality required for privilege or protection); and
C. That the document is deserving of attorney-client privilege or work product protection under the usual standards.
(Order, June 30, 2004.) [Dkt 250.]

  B. James Navarre's affidavit and testimony at the evidentiary hearing on August 30, 2004.

  The second criteria comes into play because each of the documents on the privilege log is Bates numbered beginning with the prefix "SP." In ruling on Plaintiff's Fourth Motion to Compel, this court found that the documents at issue there, also prefaced "SP," had been produced to the Special Prosecutor appointed by the Circuit Court of Cook County to investigate allegations of torture by certain police officers, and, therefore, any attorney-client privilege or work product protection had been waived. (Opinion, April 20, 2004 at 11-12, 14-15.)

  In the briefing leading to that opinion, the City took a number of inconsistent positions regarding what had been produced to the Special Prosecutor, initially stating that the originals of the "SP" documents had been produced to the Special Prosecutor, subsequently amending that statement to claim that only a few of the documents then in dispute had been produced to the Special Prosecutor, and then, finally, on its motion for reconsideration, claiming that some of that limited list had not actually been produced to the Special Prosecutor and that some had been produced in error. (Opinion, April 20, 2004 at 6-8, 10-11; City's Mot. Recons. at ¶ 3, 7-8, 10-11 [dkt 181.]) The court subsequently held that, if the City contended that documents that had been marked "SP" for purposes of production to the Special Prosecutor had not, in fact, been produced to the Special Prosecutor, the City would have to demonstrate that fact and not rely on conclusory declarations. (Order, June 30, 2004 ¶ 7.)

  In support of its motion for reconsideration of the April 20, 2004 Opinion, the City had submitted the affidavit of James Navarre, an attorney with the law firm Hinshaw & Culbertson (the "Hinshaw firm"), stating, in summary, as follows: In May 2002, the City retained the Hinshaw firm in connection with the Special Prosecutor's investigation. (City's Mot. Recons., Ex. B, James Navarre Aff. at ¶ 1-2.) The first grand jury subpoena to the City in connection with the investigation was issued in November 2002; however, the City began producing documents voluntarily to the Special Prosecutor before the subpoena was issued. (Id. ¶ 2.) In January and February 2003, the City's Corporation Counsel's office and the law firm Jones Day (which the City had hired to represent it in earlier Police Board hearings involving Jon Burge) provided documents to the Hinshaw firm to be processed for production to the Special Prosecutor. (Id. ¶ 3-4.) The Hinshaw firm had Merrill Corporation number the documents with Bates numbers, copy them and return the originals and copies to the Hinshaw firm. (Id.)

  The following portions of Mr. Navarre's affidavit became particularly controversial in connection with the present motion:
If I determined a document was deemed privileged, I removed the document from the box, set the document aside, and placed the document in a folder labeled by box number.
Documents potentially responsive to the Special Prosecutor were sent to Merrill Corporation for Bates-stamping with an "SP" number and copying. This practice permitted an inventory by SP number of exactly what documents were sent to the Special Prosecutor and which documents were withheld from the Special Prosecutor pursuant to privilege.
(Navarre Aff. ¶¶ 4-5, emphasis added.)

  In light of the City's shifting positions taken in connection with the Plaintiff's Fourth Motion to Compel, the court determined that Mr. Navarre's affidavit was not sufficient to carry the City's burden of demonstrating that the documents on the privilege log had not been produced to the Special Prosecutor. Mr. Navarre was ordered to appear for an evidentiary hearing, and the City was ordered to produce for in camera inspection the "database constituting or reflecting the inventory" to which Mr. Navarre referred in his affidavit. (Order, Aug. 6, 2004.) [Dkt 298.] The City was also ordered to produced copies of the documents under discussion for in camera inspection. (Id.)

  Mr. Navarre's testimony at the evidentiary hearing, held on August 30, 2004, shed light on why the City's positions in this case have repeatedly shifted. To start, no document constituting an "inventory" of documents produced to the Special Prosecutor has ever existed. (Tr. Aug. 30, 2004 at 60.) As Mr. Navarre testified, the multi-volume document produced for in camera inspection entitled "City of Chicago-Fact Document Database" is a print-out of a computer database created by temporary paralegals at the Hinshaw firm in the late fall of 2003 and early 2004. (Id. at 67.) The "SP" numbered documents are listed, but, surprisingly, there is no field that records whether or not the document was produced to the Special Prosecutor. Although the database has a field for "privilege," that field does not record which documents have been withheld from the Special Prosecutor on the basis of privilege. (Id. at 69, 72.) In fact, Mr. Navarre has no idea on what basis the temporary paralegals made entries in that field. (Id. at 65, 67, 69-72.)

  In fairness, the City's present counsel never actually stated that a physical "inventory" existed. Rather, the phrasing of Mr. Navarre's affidavit, combined with the obvious common sense value of preparing and maintaining some control system in a situation where many documents from different sources are repeatedly being produced in different pieces of litigation pending in different courts, led the court as well as Hobley's counsel to conclude that an inventory must have been prepared. But Mr. Navarre testified that no such control system was ever established.

  Mr. Navarre testified, in summary, as follows. The Hinshaw firm began producing documents to the Special Prosecutor voluntarily in the late summer of 2002. (Tr. Aug. 30, 2004 at 7.) No records were prepared to keep track of what was produced at that time except transmittal letters to the Special Prosecutor. (Id. at 7.) To the best of Mr. Navarre's knowledge, the only documents produced at that time were police "CR" [complaint register] files and personnel files that the Hinshaw firm had in its possession from other cases in which it represented the City. (Id. at 9-10, 16-17.) Those documents, consisting of several boxes, were not Bates stamped and no privilege log was created because no privilege was asserted as to those documents. (Id. at 7-8, 18, 24.) In January 2003, the Hinshaw firm received documents from the Jones Day law firm for production to the Special Prosecutor, and soon after began the process of Bates stamping. (Id. at 17.) At the same time, documents delivered to the Hinshaw firm ...


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