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August 24, 2005.

RONALD PORTIS, MADRIC LANCE, and EMMETT LYNCH, individually and on behalf of a class, Plaintiffs,
CITY OF CHICAGO, et al. Defendants.

The opinion of the court was delivered by: NAN NOLAN, Magistrate Judge


Plaintiffs Ronald Portis, Madric Lance and Emmett Lynch have brought this class action lawsuit against defendants City of Chicago ("the City"), Terry Hillard, Joseph Griffin, John Risley, Francis Kehoe, Evert Johnson and Robert Johnson asserting claims under 42 U.S.C. § 1983 for violations of their federal civil rights. Specifically, plaintiffs were arrested for nonviolent ordinance violations which impose only a fine, not jail time. Plaintiffs allege they were "unlawfully detained for prolonged periods of time after completion of all administrative steps incident to their arrests for non-custodial ordinance violations," in violation of their civil rights. Portis v. City of Chicago, No. 02 C 3139, 2004 WL 1284010, at *1 (N.D. Ill. June 10, 2004).*fn1 This matter is presently before the court for ruling on Defendants' Motion to Compel Deposition Testimony of Whitman Soule. As explained below, defendants' motion is granted in part and denied in part. I. BACKGROUND

Soule is a computer consultant whom plaintiffs retained to assist in creating a database of information regarding the class members' arrests. "The information in the database was gathered from computer databases and hard copies of arrest reports produced by the City [during discovery]." Portis v. City of Chicago, No. 02 C 3139, 2004 WL 1535854, at *1 (N.D. Ill. July 7, 2004) (citation omitted). Some of the information was merged into the database from the City's computer-readable records, whereas other data was manually entered from hard copies of arrest reports. The database includes fields such as the name and address of each arrestee class members, the arrestee's central booking number, the date and time of arrest, the booking date, the time the arrestee was received in lockup, the time and date the arrestee was released on bond, etc. Id.

  Plaintiffs originally proposed creating the database as a joint project with defendants, but defendants declined. When defendants later sought to compel production of the database, plaintiffs opposed production, claiming the database was attorney work product that defendants were not entitled to, and further arguing that if the database had to be produced, defendants should have to share the cost of creating the database. Id. As explained more fully in the court's order of July 6, 2004,*fn2 over plaintiffs' objections, the court found that although the database was entitled to the protection given to fact work product, defendants had demonstrated both a substantial need for the database and that they were unable to obtain the substantial equivalent of the information compiled in the database without undue hardship. Id. at *3-5. The court therefore granted the motion to compel in part, finding that: (i) "such a consolidated compilation of relevant data is an invaluable tool for both sides to assess the merits of the litigation[;]" (ii) "giving the City access to the database should expedite the class-notice process considerably[;]" (iii) "plaintiffs will not be unduly prejudiced by sharing [the database] with the City now, provided they are fairly compensated for their extensive work[;]" and (iv) even though the City had all the information necessary to create a similar database, requiring the City to duplicate plaintiffs' effort "would be a complete waste of time and money." Id. at *4. In order to avoid seriously prejudicing plaintiffs, who had expended considerable resources to create the database, the court further ordered the City to pay its fair share of the expenses incurred to create the database. Id. at *6.

  Faced with having to pay its share of the database, the City initially declined a copy of the database, but then changed its position several months later. At that point, a dispute arose regarding what the court meant when it ordered the parties to split the expenses. As part of that dispute, the City wanted to depose Soule and the paralegals who worked on the database to find out how much they were paid for their work on the database. In resolving the dispute, as stated more fully in its order of December 6, 2004, the court explained that the expenses, or costs, of compiling the database should "be calculated based on the number of hours Mr. Soule and the paralegals spent on the project, multiplied by their hourly billing rates, plus other costs, if any." Portis v. City of Chicago, No. 02 C 3139, 2004 WL 2812084, at *2 (N.D. Ill. Dec. 7, 2004).*fn3 The court thus quashed the City's document requests and deposition notices, finding that discovery aimed at ascertaining how much Soule and the paralegals were paid, as opposed to discovering their billing rates, was unnecessary.*fn4 Id. at *4.

  After the City*fn5 eventually received its copy of the database, the City alerted plaintiffs and the court that it wanted to depose Soule regarding the database. Plaintiffs expressed their hope that the parties would offer a joint database at trial, and initially suggested an informal meeting with Soule during which questions about the database could be addressed. The City, however, wanted a deposition. As the court explained at the hearing on April 27, 2005, whether or not the City eventually agreed to a joint database, it was entitled to depose Soule about the database. Plaintiffs did not object to producing Soule for a deposition.*fn6 The issue was whether he should be deposed during fact or expert discovery. Throughout the litigation, plaintiffs had resisted labeling Soule as an expert, referring to him as a "consultant" and their "computer guy." With the fact discovery cutoff approaching (although the deadline was subsequently extended), the City needed to know whether Soule was going to be identified as an expert, because if not, the City had to complete his deposition before fact discovery closed. The court thus directed plaintiffs to clarify whether Soule would be an expert witness. At the hearing on May 4, 2005, plaintiffs were not in a position to exclude the possibility that Soule might be an expert witness.*fn7 As a result, the court ruled that the City was entitled to depose Soule during fact discovery, and that if plaintiffs later identified him as an expert witness, the City could depose him a second time.

  The City deposed Soule on June 17, 2005. Prior to the deposition, plaintiffs' counsel wrote a letter to the City's counsel dated June 13, 2005 imposing certain limits to the deposition. Specifically, plaintiffs' counsel stated that in the event the parties failed to agree on a joint database, then Soule would not be a witness and plaintiffs would present the relevant data and any analysis of that data through an expert. Accordingly, plaintiffs' counsel stated that Soule's deposition would be limited to clarifying issues regarding the database and answering any questions regarding the three affidavits Soule had submitted during the course of the litigation. Plaintiffs' counsel further took the position that because Soule "has merely offered technical assistance in creating a database and has performed simple computations based on the database he helped create," Soule's compensation and any reports or summaries Soule had prepared for plaintiffs' counsel in preparation for the case were off limits. In a letter dated June 14, 2005, the City's counsel rejected plaintiffs' counsel's attempt to limit the scope of Soule's deposition. Counsel did not resolve their dispute before Soule's deposition commenced on June 17, 2005, nor did they approach the court to resolve the dispute for them. Instead, the deposition proceeded, but plaintiffs' counsel regularly instructed Soule not to answer questions on grounds that the questions were beyond the scope of the deposition and sought attorney work product. Soule thus did not respond to questions on the following topics: "(1) what sort of materials were considered in creating the database; (2) why certain fields were included in the database; (3) why certain fields were left out and what those fields are; (4) any limitations on what can be learned from the various calculations performed by Mr. Soule; (5) Mr. Soule's compensation arrangements with plaintiffs' counsel . . .; (6) any calculations Mr. Soule did but did not report in his three affidavits; (7) why Mr. Soule chose to include the information he did in his affidavits, and why he did not include other information; (8) what assumptions he made in putting together the database and his affidavits; and (9) any additions to the database since the production of the ticketing data to defendants." (Defs.' Br. in Support of Mot. Compel at 8-9.)

  The City filed a motion to compel, seeking an opportunity to re-depose Soule in order to question him about the subjects he declined to discuss at the June 17th deposition. That motion to compel is now fully briefed, and ready for ruling.


  The issue presented is whether plaintiffs' counsel properly instructed Soule not to answer questions about certain subjects during his deposition. Under Rule 30(d)(1) of the Federal Rules of Civil Procedure, "[a] person may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation directed by the court, or to present a motion under Rule 30(d)(4)."*fn8 Fed.R.Civ.P. 30(d)(1). According to the City, plaintiffs improperly restricted the scope of Soule's deposition. Plaintiffs counter that the information sought by the City is both attorney work product protected from discovery under Rule 26(b)(3) and information held by a non-testifying expert, protected from discovery under Rule 26(b)(4)(B). For the reasons that follow, the court grants the motion to compel in part and denies it in part.

  A. Soule's Compensation

  The first issue is whether plaintiffs' counsel properly refused to allow Soule to answer questions relating to his compensation. At the deposition, plaintiffs' counsel instructed Soule not to answer, maintaining that counsel's financial arrangements with Soule were not relevant. Upon being challenged that relevance is not a proper basis to instruct a deponent not to answer, see Fed.R.Civ.P. 30(d)(1), plaintiffs' counsel stated that the financial arrangement is "privileged." But no privilege protects the financial arrangement between plaintiffs' counsel and Soule. Soule is likely a necessary witness to lay the foundation for admission of the database, and as the City correctly points out, evidence regarding compensation is relevant to a witness's bias and credibility. In re Chicago Flood Litig., No. 93 C 1214, 1995 WL 437507, at *9 (N.D. Ill. July 21, 1995).

  Plaintiffs disagree, contending that Soule will not be a witness at trial, so there is no issue regarding his credibility. This argument is unpersuasive, however. For one thing, plaintiffs concede Soule may be a witness in the event there is a stipulation regarding the database. Additionally, in the event there is no stipulation, plaintiffs have yet to explain how they intend to get the database into evidence without testimony from Soule. When the court asked for an explanation, plaintiffs stated that the Federal Rules of Evidence allow for admission of summaries of voluminous records, evidently referring to Rule 1006. Rule 1006 permits summaries, but does not relieve plaintiffs from their obligation to lay a foundation for the summary. Christopher B. Mueller & Laird C. Kirkpatrick, 5 Federal Evidence § 584 (2d ed. 1994) (proponent of summary proof must lay foundation). And although plaintiffs now suggest that the database will be admitted through its testifying expert, plaintiffs have failed to explain how their testifying expert could lay the foundation for a database created by Soule. If plaintiffs have a theory of admissibility that avoids the necessity of Soule's testimony, they have not revealed their theory to the court. Moreover, even if plaintiffs need not call Soule, the City may intend to call him regarding the foundation of the database.*fn9 Despite plaintiffs' position to the contrary, there remains a distinct possibility that Soule will need to testify at trial. The court therefore finds no basis to preclude questions regarding Soule's compensation on the grounds that Soule will not be a witness at trial.

  Plaintiffs also argue that this court has barred the City from asking any questions regarding Soule's compensation, thus suggesting that counsel properly directed Soule not to answer questions in order to enforce a limitation directed by the court. This argument misconstrues the court's order of December 6, 2004 regarding how the City's share of the costs of the database should be calculated. As plaintiffs are well aware, in its order of December 6, 2004, the court quashed the City's notices to depose Soule and the paralegals who worked on the database regarding the amounts paid for their work. Portis, 2004 WL 2812084, at *4, 6. The rationale for the ruling was that because Soule's and the paralegals' services were to be reimbursed based upon their hourly billing rates, discovery regarding how much plaintiffs' ...

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