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Patterson v. Burge

May 4, 2007


The opinion of the court was delivered by: Geraldine Soat Brown, United States Magistrate Judge

Judge Joan B. Gottschall


Before the court is Certain Defendants' Motion for Sanctions and Second Motion to Compel. (Def.'s Mot. Sanctions.) [Dkt 589.] Defendants City of Chicago, Terry Hillard, and Thomas Needham also joined in the motion. [Dkt 591.] For the reasons set out below, the motion is granted.


This is the second motion filed by certain individual defendants (collectively here, "Defendants") regarding the deposition of plaintiff Aaron Patterson ("Patterson"). Defendants previously filed a motion to compel Patterson to answer questions that he had refused to answer at his deposition, and to compel production of certain documents allegedly provided to Patterson prior to his deposition. (Defs.' Mot. Compel.) [Dkt 421.] Except for the issue regarding the documents, that motion was rendered moot by the entry of a Stipulated Protective Order governing the use and disclosure of any deposition testimony that Patterson in good faith believes creates a concern for his personal safety if publically disclosed. (Order, June 14, 2006; Stip. Protective Order.) [Dkt 437, 438.] Following that order, Patterson's deposition was resumed, but apparently there were still questions that he declined to answer, and the present motion ensued.*fn1

The present motion initially raised again the issue of the documents allegedly provided by Patterson's counsel. (Defs.' Mot. Sanctions at 4.) That issue was resolved when Patterson's present counsel agreed to produce a CD containing documents that Patterson had mentioned at his deposition. (See Order, March 16, 2007.) [Dkt 663.] Accordingly, that part of the motion is moot. The remaining disputes relate to questions that Patterson refused to answer at his continued deposition.

The scope of discovery extends to "any matter, not privileged, that is relevant to the claim or defense of any party . . . ." Fed. R. Civ. P. 26(b)(1). Discovery is not limited to evidence admissible at trial, but extends to "discovery [that] appears reasonably calculated to lead to admissible evidence." Id. Patterson's Third Amended Complaint alleges that Defendants "knowingly and maliciously tortured, prosecuted, imprisoned and sentenced an innocent Aaron Patterson to death." (Third Am. Compl. at 6.) [Dkt 693.] Patterson alleges that his injuries include "pain, suffering, fear, mental anguish, detention, imprisonment, humiliation, and loss of freedom and companionship." (Id. at 25.)


I. Questions Regarding Patterson's Investigations and Conversation with the Office of Police Standards

Patterson testified that one of the jobs he had following his release from prison after being pardoned was working for Professor David Protess "investigat[ing] cases," including this case. (Dep. at 42-43.)*fn2 Patterson testified that he was paid for that work. (Id.) He refused to testify about what he did to investigate this case. (Id. at 45-46.) His counsel asserted an objection of work product. (Id.) None of the lawyers at Northwestern University represent Patterson. (Id. at 970.) Patterson has also worked for Professor Jack Doppelt, who is a journalist, not an attorney. (Id. at 968.)*fn3 Patterson also refused to testify about his investigations for Professor Doppelt, and his counsel asserted "issues of confidentiality" and "journalistic ethics issues." (Id. at 970.)

Defendants seek an order compelling Patterson to testify to facts that he learned during his investigations regarding this case. (Defs.' Mot. Sanctions at 5-6.) In response, Patterson argues the general principle that an attorney's notes are protected work product, as are notes taken by an agent working on the attorney's behalf. (Pl.'s Resp. at 7.) However, that argument misses the mark; Defendants' motion does not address any documents as to which work product protection has been asserted.*fn4 Defendants seek to compel further deposition testimony, and the information sought is not protected attorney work product. The work product privilege protects "documents and tangible things otherwise discoverable . . . prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative . . . ." Fed. R. Civ. P. 26(b)(3). Defendants' motion seeks to compel Patterson to testify about factual information that he has about this case, which is not protected work product.

[T]he work-product protection cannot be asserted to prevent disclosure of the underlying facts, which are discoverable in any adversary proceeding. A document may be protected from compelled disclosure. An attorney may not be forced to take the stand and testify as to that attorney's mental impressions. That does not, however, mean that the underlying facts thereby are absolutely protected from discovery, either by way of interrogatories or by way of depositions of other knowledgeable witnesses, discovered through interrogatories.

Edna Selan Epstein, The Attorney-Client Privilege and the Work Product Doctrine 488 (American Bar Association 4th ed. 2001). Additionally, the fact that Patterson obtained the information in the course of his paid investigations for the professors, who are not representing him in this case, undermines his claim that the material was prepared "in anticipation of litigation or for trial."

Patterson's response to this motion does not present any argument or authority regarding his assertion of any other claimed privilege, such as "journalistic ethics," ...

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