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December 9, 2005.

CITY OF CHICAGO, et al., Defendants.

The opinion of the court was delivered by: ARLANDER KEYS, Magistrate Judge


This case is before the Court on defendants' motion to compel certain non-parties to produce certain documents and to answer certain deposition questions. For the reasons set forth below, the motion is denied.

Factual Background

  On November 19, 2002, the plaintiff, Rachelle Jackson, was in the area of 4300 S. Princeton in Chicago, when she heard a crash involving a Chicago Police Department squad car and a civilian car. When the squad car exploded into flames, Ms. Jackson, who claims to be trained in nursing and CPR, approached the car to offer assistance. Ms. Jackson noticed that the officer who had been driving the car was injured and unconscious; she also noticed that the officer who had been riding in the passenger side appeared to be dazed and unresponsive. Because she was closer to the passenger side, Ms. Jackson first helped the passenger officer, who turned out to be Officer Kelly Brogan; according to Ms. Jackson, she dragged Officer Brogan out of the burning car, pulling her out by her shoulders, keeping her arms under Officer Brogan's arms. While Ms. Jackson was offering assistance, emergency medical and police personnel arrived on the scene, as did numerous bystanders. At some point, it became clear that someone had slipped in and removed the service weapon from Officer Brogan's unconscious partner.

  The police officers who arrived on the scene questioned Ms. Jackson about the accident, and about the missing service weapon. Although she denied knowing anything about the stolen gun, police officers took her, by squad car, to the police station. According to Ms. Jackson, the police made her turn over her purse, her coat and her shoes, and then held her in a small interrogation room from shortly after the accident on the evening of November 19th until approximately 12:45 a.m. on November 22, 2002, where she was interrogated, tortured, deprived of sleep, food and water, and threatened with violence for two and a half days, until she finally signed a statement saying that she had stolen the gun from Officer Brogan's partner. Ms. Jackson was charged with aggravated battery to a peace officer, robbery, and disarming a peace officer. She remained in Cook County Jail for almost eleven months, until her case went to trial.

  Throughout the criminal proceedings, Ms. Jackson was represented by the Office of the Public Defender of Cook County ("CCOPD"), specifically by assistant public defenders Lisa Boughton and Crystal Carbellos. At trial, several bystander witnesses testified, as did a paramedic from the City of Chicago, and most of the witnesses testified that, from their perspective, it appeared that Ms. Jackson had, indeed, attempted to help Officer Brogan. Some witnesses described being pressured by police to say that Ms. Jackson was restraining Officer Brogan so that her accomplice could steal the driver's gun. At the close of the trial, on October 2, 2003, the judge took the case from the jury and entered a directed verdict of not guilty on all charges.

  On November 19, 2003, Ms. Jackson sued the City of Chicago and four Chicago Police Officers, alleging violations of her constitutional rights, as well as several related state law claims, including false arrest, malicious prosecution and intentional infliction of emotional distress. Ms. Jackson filed an amended complaint on August 24, 2004, adding Officer Brogan as a defendant.

  Of particular import to the motion to compel before the Court, in Count II of her amended complaint, Ms. Jackson alleges that the individual officer defendants "withheld material exculpatory information and evidence from prosecutors and from the court, thus prolonging the criminal prosecution of Rachelle, prolonging her detention, and forcing her to face trial without the benefit of material exculpatory evidence, thus violating her right to due process under the Fourteenth Amendment to the Constitution." First Amended Complaint, Count II, ¶ 28. During discovery, Ms. Jackson detailed her allegations with greater specificity. She alleges that the officers falsified: her arrest report, which was apparently signed and/or authored by two of the named officer defendants; a vice case report, which was apparently signed and/or authored by two of the named officer defendants; supplemental police reports prepared by one of the named officer defendants; general progress reports prepared by the named officer defendants; a written statement and oral note from Ms. Jackson and a written statement from Eric Clifton; and a complaint for preliminary hearing signed on behalf of Officer Brogan. See Plaintiff's Second Amended Responses to Defendant Brogan's First Set of Interrogatories, Response No. 1(a) (1-4) (attached as Exhibit A to Defendants' Motion to Compel). She also alleges that the officers failed to include in their reports exculpatory statements and accounts they received from her and from several witnesses, including Arnold Wilson, Charles Nevels, and Eric Clifton.

  In an attempt to defend against these allegations, the defendants sought discovery from Lisa Boughton and Crystal Carbellos, the attorneys from the CCOPD who represented Ms. Jackson during the criminal proceedings. The defendants subpoenaed the file of Lisa Boughton from the CCOPD, and deposed both Ms. Boughton and Ms. Carbellos. The CCOPD has not produced Ms. Boughton's file, but it has produced Ms. Carbellos' 513-page file, and Ms. Boughton has also produced approximately 60 pages from her working file in the case. The attorneys have not produced notes they may have written concerning witness reports and conversations they may have had with Ms. Jackson about the case, and Ms. Boughton has never produced her complete, original file.

  Adding to the intrigue, at her deposition, Ms. Boughton refused to answer certain questions on privilege grounds. For example, asserting the attorney-client privilege, she refused to answer questions about whether she had talked to Ms. Jackson about the conditions of her detention before she was brought to jail and questions about whether she had talked to Ms. Jackson about any of the events leading up to her arrest. And she refused to answer questions about whether the notes in her working file contained interviews with witnesses or Ms. Jackson, questions about why she did or did not interview certain witnesses, and questions about why she did not call Ms. Jackson at the motion to suppress, asserting that such information was protected under the work-product doctrine.

  The defendants have moved to compel Ms. Boughton, Ms. Carbellos and the CCOPD to produce Ms. Boughton's complete file and both attorneys' handwritten notes, and to compel Ms. Boughton to answer the deposition questions she has, to date, refused to answer.*fn1 In response to the motion, the CCOPD represented that, after a diligent search, it located Ms. Boughton's file, and it has agreed to produce the file, with the exception of the trial notes; it argues that those notes are protected from discovery by the work product doctrine. With their response, the CCOPD and the attorneys included a privilege log detailing the withheld documents and the privilege claimed for each. Ms. Boughton also continues to claim the attorney-client and work product privileges for the questions at issue during her deposition.


  The attorneys here seek to avoid disclosure of materials based upon both the work-product doctrine and the attorney-client privilege. The work product doctrine, announced in Hickman v. Taylor, 329 U.S. 495 (1947), and codified in Rule 26(b) (3) of the Federal Rules of Civil Procedure, protects "otherwise discoverable documents and tangibles, including an attorney's thoughts and mental impressions, made in anticipation of litigation." Caremark, Inc. v. Affiliated Computer Services, Inc., 195 F.R.D. 610, 612 (N.D. Ill. 2000). A party seeking to assert the doctrine and avoid discovery must establish that the sought after materials: (1) consist of documents and tangible things; (2) were prepared in anticipation of litigation or for trial; and (3) were prepared by or for a party, or by or for a party's representative. Id. at 613-14 (quoting 8 Wright, Miller & Marcus, Federal Practice and Procedure: Civil 2d §§ 2024 (1994)). Although Rule 26(b) (3) covers only tangibles, Hickman is more broadly construed to cover intangibles as well. Thus, oral statements of a witness to an attorney would be protected from disclosure. Caremark, 195 F.R.D. at 614. As the court noted in Caremark, forcing an attorney "to disclose notes and memos of witness oral statements is particularly disfavored because it tends to reveal the attorney's mental processes." Id. at 613 (citing Upjohn Company v. United States, 449 U.S. 383, 399 (1981)).

  To overcome the work-product doctrine's protection, the party seeking discovery must show that it has a "substantial need for the materials," and that it is unable to obtain "the substantial equivalent of the information without undue hardship." Caremark, 195 F.R.D. at 614 (quoting Edna Selan Epstein, The Attorney-Client Privilege and the Work Product Doctrine 293 (3rd ed. 1997)). Even upon such a showing, however, an attorney's mental processes are protected from disclosure. Caremark, 195 F.R.D. at 614. In addition to the work-product doctrine, the attorneys here have sought to assert the attorney-client privilege, which generally provides that: "(1) [w]here legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) except the protection be waived." United States v. Evans, 113 F.3d 1457, 1461 (7th Cir. 1997); United States v. White, 950 ...

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