The opinion of the court was delivered by: Judge David H. Coar
MEMORANDUM OPINION AND ORDER
Before the court is the plaintiffs' motion to vacate Magistrate Judge Schenkier's October 23, 2008 order regarding communications plaintiffs' attorney may have had with her clients. For the following reasons, the motion is DENIED.
In their second amended complaint, the plaintiffs allege that on December 4, 2006, at approximately 4:00 p.m., Chicago police officers stopped plaintiff Jonathan Hadnott without cause or reasonable suspicion, searched his person, and arrested him without probable cause. (R.34, 2d Am. Comp. ¶¶8-9.) The plaintiffs further allege that the officers then drove Jonathan Hadnott to the home he owns at 7322 S. Green in Chicago (where plaintiffs Jessie Hadnott, Kevin Hunt, and Brandell Betts reside), detained the plaintiffs against their will, and searched the home without permission or legal cause. (Id. ¶¶ 10-12.)
The plaintiffs have named three officers who have a plausible connection to the alleged incident: The Chicago police department identified defendant Michael Kelly as an officer who had obtained police database information about Hadnott on the date of the alleged incident, and defendants Marc Jarocki and Patrick Gilmore were identified as two officers assigned to the same vehicle as Kelly on that day. All three officers, however, deny involvement in the alleged incident. Thus, the identity of the officers remains an issue for trial.
The identity dispute complicates discovery, as was particularly evident in the parties' disagreement over the appropriate protocol for the officers' depositions. The defendants, in particular, are concerned that a plaintiff's observation of a defendant at a deposition-a highly suggestive context-will taint the plaintiff's subsequent identification of the defendant in court. The plaintiffs, meanwhile, do not want to abandon their rights to participate meaningfully in the prosecution of their case.
The parties asked Magistrate Judge Schenkier to resolve these competing interests prior to Kelly's deposition (which was to occur before August 21, 2008, the date of his military deployment abroad). And so on August 12, 2008, Judge Schenkier offered a solution: Without setting in stone the protocol for all subsequent depositions, he ruled that if the plaintiffs intended to attend Kelly's deposition they first would have to view a photographic array that included Kelly's picture (along with his height and weight) and indicate whether any of the individuals in the array had been involved in the alleged incident. (R.85, Ex.A, Tr. 8/12/08 at 12-13, 20; R.65.)
In compliance with the court's order, the plaintiffs' attorney, Irene Dymkar, timely informed defendants' counsel that the plaintiffs intended to attend the deposition. A photographic array was then prepared. (R.111, Ex.A.) On the day before the deposition, though, Attorney Dymkar told defendants' counsel that only plaintiff Jonathan Hadnott would attend. Defense counsel responded that they understood Judge Schenkier's order to require that each plaintiff view the photographic array before anyplaintiff could attend the deposition. (R.111, Ex. B.)
To clarify Judge Schenkier's August 12 ruling, Attorney Dymkar and defendants' counsel participated in an impromptu telephonic hearing with Duty Magistrate Judge Geraldine Soat Brown on the day of the deposition, August 19, 2008. (R.85-3.) Judge Brown concluded that the intent of Judge Schenkier's August 12 ruling was to avoid exposing the plaintiffs to Officer Kelly's physical appearance. Allowing just one plaintiff to view the photographic array and attend the deposition would subvert that intent, said Judge Brown, because nothing would prevent the plaintiff from relaying a physical description of Kelly to the other plaintiffs. (R.85, Ex. B, Tr. 8/18/08 at 10-11.) Accordingly, Judge Brown ruled that the attorneys could either resume the deposition at a later date after each plaintiff had viewed the photo array, or take the deposition outside the presence of the plaintiffs. (Id. at 12.)
The parties elected to proceed with Kelly's deposition, and no plaintiffs attended. During the deposition, Attorney Dymkar asked Kelly specific questions about his own physical appearance, that of his co-defendants, and that of the vehicles they may have been driving while on duty on the date of the alleged incident. Defendant Kelly's counsel did not instruct him not to answer the questions. But at various points during the deposition, defendants' counsel requested that Attorney Dymkar confirm that she would not disclose the elicited descriptions to her clients. She refused. Attorney Dymkar said only that she would comply with the court's orders. (R. 111, Ex. C, Kelly Dep. 72-73, 77-79, 148-50.) At the conclusion of the deposition, defendants' attorneys proposed a telephonic conference with Judge Brown to clarify whether Attorney Dymkar could discuss Kelly's descriptions with the plaintiffs. Attorney Dymkar refused to seek that clarification. (Id. at 150-51.)
The following day, August 20, 2008, defendants' counsel filed a joint motion to place under seal the identifying information Attorney Dymkar had elicited at the deposition, and to enter a protective order. (R.73.) On August 27, 20008, Judge Schenkier granted the motion. (R.85, Ex.C, Tr. 8/27/08, at 4-5.) The court noted that if Attorney Dymkar had shared Kelly's physical description with the plaintiffs it would "undermine the whole purpose" of both Judge Schenkier's order and Judge Brown's order that the plaintiffs view a photographic array before attending a deposition. (Id. at 3-4.) He also confirmed that Judge Brown's ruling would have been his as well. (Id. at 10.)
Judge Schenkier then asked Attorney Dymkar if she had disclosed Kelly's physical description of himself, the other officers, or their cars, to her clients. (Id. at 4.) Attorney Dymkar refused to answer the question, citing the attorney-client privilege. (Id.) She said only that she had not violated any court orders, in spirit or otherwise. (Id.) Judge Schenkier responded that, had Attorney Dymkar participated in a telephone conference with Judge Brown to clarify her obligations under the court's August 12 order, the attorney-client issue would not have arisen. (Id. at 5-7.) He then gave Attorney Dymkar two weeks to submit authority for her assertion of attorney-client privilege. (Id. at 8-9.)
On October 23, 2008, after considering submissions from both parties, Judge Schenkier ruled that the attorney-client privilege does not protect Attorney Dymkar's disclosure of whether she relayed to her clients the identifying information she discovered and elicited at Kelly's deposition. (R. 95, 10/23/08 Minute Entry; R.99, Ex.A., Tr. 10/23/08 at 8-10.) Judge Schenkier explained that the information was not a confidential communication from a client to an attorney, nor would its exposure reveal client confidences. (Id. at 8-10.)
Judge Schenkier also ruled that, if Attorney Dymkar did provide that information to her clients, it would violate both the August 12 and August 19 orders. (Id. at 7-8.) He explained that the purpose of both orders was to prevent any of the plaintiffs from seeing Kelly at the deposition before independently identifying him. (R.99, Ex. A., Tr. 10/23/08 at 6.) The intent of that order clearly would be subverted, said Judge Schenkier, if Attorney Dymkar could simply relay to her clients the descriptions Kelly provided. (Id. at 6-7.) Judge Schenkier was confident, too, that Judge ...