United States District Court, N.D. Illinois, Eastern Division
December 9, 2005.
RACHELLE JACKSON, Plaintiff,
CITY OF CHICAGO, et al., Defendants.
The opinion of the court was delivered by: ARLANDER KEYS, Magistrate Judge
MEMORANDUM OPINION AND ORDER
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.
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
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
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
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
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 F.2d 426, 430 (7th Cir. 1991). The party
seeking to invoke the privilege bears the burden of establishing
all of the essential elements, and the privilege "must be invoked
on a question-by-question or document by document basis."
Evans, 113 F.3d at 1461; White, 950 F.2d at 430.
Here, the defendants first seek Ms. Boughton's and Ms.
Carbellos' trial notes and Ms. Boughton's complete file from Ms.
Jackson's criminal case. At the outset, the defendants concede
that such materials are covered by the work-product doctrine
and rightly so; the trial notes were prepared by Ms. Boughton and
Ms. Carbellos in the course of their representation of Ms.
Jackson in anticipation of and during her criminal trial. Thus,
the issue before the Court is whether the doctrine's protection
should be overcome. In her complaint, Ms. Jackson alleges that the defendants
withheld exculpatory evidence from the prosecutor and the court.
Specifically, Ms. Jackson explained in her discovery responses
that witnesses Arnold Wilson and Charles Nevels told the police
that she was trying to help Officer Brogan at the accident site,
and that they did not see her engage in any kind of wrongdoing;
yet none of that information made it into the police reports. She
further alleges that witness Eric Clifton told police that she
was trying to help Officer Brogan, yet that information did not
appear in the police reports. She also alleges that the police
failed to include her side of the story in their reports. Thus,
as the Court understands it, the exculpatory evidence that is
alleged to have been withheld consists of various witnesses'
stories, all of which corroborate Ms. Jackson's version of the
events at the scene of the crash that she was there to help
Officer Brogan, not to help someone else steal a police officer's
The defendants argue that they are entitled to explore whether
Ms. Jackson's attorneys had this information at the time of
trial, and that the only way they can do so is by examining the
attorneys' trial notes and file materials. The defendants are
correct that the law on this issue would allow them to defend
against Ms. Jackson's allegations by showing that she and her
attorneys knew about the information and evidence she claims was withheld. The Seventh Circuit held in Newsome v. McCabe,
256 F.3d 747, 752 (7th Cir. 2001), that a constitutional claim
against police officers who deliberately withhold exculpatory
evidence should be analyzed under the framework set forth in
Brady v. Maryland, 373 U.S. 83 (1963). And, under Brady,
evidence cannot be regarded as suppressed if it was fully
available to a defendant before or at the time of trial or if the
defendant, with the exercise of reasonable diligence, could have
obtained the information. See Boss v. Pierce, 263 F.3d 734, 740
(7th Cir. 2001) (citing United States v. Earnest, 129 F.3d 906,
910 (7th Cir. 1997); United States v. Morris, 80 F.3d 1151,
1169-70 (7th Cir. 1996); United States v. Zambrana,
841 F.2d 1320, 1340 (7th Cir. 1988)); United States v. White,
970 F.2d 328, 337 (7th Cir. 1992).
But the defendants stand on shaky ground when they assert that
the attorneys' trial notes are the only means of obtaining the
information they seek. Based upon the limited record before the
Court, it appears that Mr. Nevels, Mr. Wilson and Mr. Clifton all
sat for deposition, and one or more of these witnesses even
testified at trial. The very nature of the evidence alleged to
have been withheld the fact that it goes to the heart of the
charges against Ms. Jackson and the essence of her defense
makes it difficult to imagine that it would not have come out in
any statement or testimony these witnesses may have provided. As such, it would seem to the Court that the defendants have other
means of proving that defense counsel knew about the exculpatory
evidence these witnesses possessed and handed over to the police,
whether because they attended their depositions or because they
elicited their testimony at trial, or that, with the exercise of
reasonable diligence, they would have learned of that evidence.
To the extent it turns out that none of this was the case, the
defendants are free to petition the Court to reconsider its
ruling. But, for now, the Court is not persuaded that the
defendants cannot obtain this information through other means,
means that would not require an invasion of any
In addition to the trial notes and file materials, the
defendants seek to compel Ms. Boughton to answer certain
questions from her deposition. As explained above, Ms. Boughton
refused to answer several questions on the basis of the
work-product doctrine, and several questions on the basis of the
attorney-client privilege. The questions for which Ms. Boughton
invoked the work-product doctrine were: (1) whether notes in her
working file contained interviews with witnesses or with Ms.
Jackson; (2) why she had Eric Clifton interviewed; (3) why she
decided not to call Ms. Jackson at the motion to suppress; and (4) why she did not interview or have an investigator interview
certain witnesses. The information these questions seek to get at
is precisely the type of mental impression/legal theory
information the doctrine was intended to protect. Moreover, in
Caremark the very case that defendants rely upon to support
their argument the court noted, in discussing the history and
policy behind the work product doctrine, that "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." 195 F.R.D. at 613 (citing Upjohn
Company v. United States, 449 U.S. 383, 399 (1981)).
The questions for which Ms. Boughton invoked the
attorney-client privilege were: (1) whether she talked to Ms.
Jackson about the conditions of her confinement at the police
station before she was brought to jail; (2) whether she had any
discussions with Ms. Jackson regarding any of the events that led
up to her arrest. This information would clearly fall within the
scope of the privilege and the defendants concede as much. Yet
they claim that, by suing the defendants and alleging that they
held her in violation of her constitutional rights, Ms. Jackson
has placed "at issue" the question of what she told her attorneys
about her confinement and about the events leading up to her arrest; in other words, they claim, she has waived the right to
assert the privilege.*fn3
As the defendants correctly note, "the attorney-client
privilege is generally waived when the client asserts claims or
defenses that put his attorney's advice at issue in the
litigation." Garcia v. Zenith Electronics Corp., 58 F.3d 1171,
1175 n. 1 (7th Cir. 1995) (citing Rhone-Poulenc Rorer Inc. v.
Home Indemnity Co., 32 F.3d 851 (3rd Cir. 1994)). For this type
of "implicit waiver" to apply, however, the party "must
affirmatively use privileged communications to defend itself or
attack its opponent in the action." Chamberlain Group v.
Interlogix, No. 01 C 6157, 2002 WL 467153, at *2 (N.D. Ill.
March 27, 2002) (citing Dawson v. New York Life Insurance Co.,
901 F.Supp. 1362 (N.D. Ill. 1995). For example, an assertion of a
good faith defense on the advice of counsel in response to a
willful infringement claim directly places defendant's advice of
counsel at issue and waives privilege. See Soloman v.
Kimberly-Clark Corp., No. 98 C 7598, 1999 WL 89570, at *1 (N.D.
Ill. Feb. 12, 1999). Here, in contrast, Ms. Jackson's allegations do not place any
advice of counsel at issue. Without question, any information Ms.
Jackson shared with her attorneys about the conditions of her
confinement or about the events leading up to her arrest would be
relevant to her claims in this lawsuit. But relevance is not the
test. The test is whether the claims she raises here place "at
issue" those communications or any advice her attorneys may have
given her. The defendants have not established that this is the
case. Although they would clearly like to know what Ms. Jackson
said or did not say to her attorneys on these issues, those
communications are privileged and protected; and there is nothing
in the parties' submissions or in the record to suggest that her
claims involve, or are predicated upon, any advice she may or may
not have received from her lawyers. Having found no waiver of the
attorney-client privilege, the Court will deny the defendants'
motion to compel Ms. Boughton to answer the deposition questions
for which she properly invoked the privilege.
For the reasons explained above, the Court finds that the trial
notes and file materials the defendants seek from attorneys
Boughton and Carbellos and from the CCOPD are protected by the
work product doctrine. Similarly, the Court finds that the
discovery the defendants seek from Ms. Boughton, though answers to certain deposition questions, is protected by the work-product
doctrine and by the attorney-client privilege. The Court further
finds that the defendants have not met their burden of showing
that these protections should be breached or that the privilege
has been waived. Accordingly, the Court denies the defendants'
motion to compel [#109].
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