The opinion of the court was delivered by: Charles P. Kocoras, District Judge
This matter comes before the court on the motion of Plaintiff Robert Wilson to quash a deposition subpoena for Tyler Nims. For the reasons set forth below, the motion is denied.
The litigation underlying the instant motion is a § 1983 suit brought by Wilson. In 1999, Wilson was convicted in Illinois state court of attempting to murder June Siler by attacking her with a box cutter. Seven years later, Wilson successfully petitioned for a writ of habeas corpus; the judge issuing the writ ruled that Wilson's Sixth Amendment right to a fair trial had been violated and that his continued incarceration was therefore unlawful under the United States Constitution. The judge provided that the State of Illinois could either begin proceedings to retry Wilson within 90 days of the issuance of the writ or release him. The State chose the latter option. In July 2007, Wilson filed the instant case, seeking civil damages against eleven police officers, the Assistant State's Attorney who prosecuted his case, the City of Chicago, and Cook County. The county and the ASA were dismissed on December 13, 2007.
In June 2009, in conjunction with a motion for leave to amend his complaint, Wilson obtained an affidavit of Jerryco Wagner. Wagner had previously been tried for several physical attacks committed in the same area where Siler was attacked and around the same time, but he had been found not guilty for those crimes by reason of mental disease or defect. Since his criminal proceedings were completed, Wagner has been housed at two Illinois mental health facilities. Within the affidavit, Wagner states that he was Siler's attacker and that he had confessed to that crime to Chicago police officers in 1997.
Before the affidavit was prepared, two persons involved with Wilson's case interviewed Wagner: Tyler Nims, who at the time was a law student, and J. Samuel Tenenbaum, a professor at the law school Nims attended and one of Wilson's attorneys of record in this case. Nims met with Wagner once by himself and once with Tenenbaum. At the time that he met with Wagner, Nims was licensed under Illinois Supreme Court Rule 711, which provides in pertinent part that an eligible law student, under the supervision of a fully licensed Illinois attorney and with the written consent of the client, may conduct all pretrial, trial, and posttrial proceedings in civil matters or certain specified criminal cases without the supervising attorney present. Ill. Sup. Ct. R. 711(c)(iii).
Since the affidavit surfaced, defense counsel has deposed Wagner on these issues.
Nims has also been subpoenaed for deposition; according to the parties' submissions on the instant motion, the deposition is being sought solely to question Nims about the two interviews he conducted with Wagner. Wilson now moves to quash the deposition subpoena in its entirety.
Federal Rule of Civil Procedure 30(a)(1) provides civil litigants with a "general right to compel any person to appear at a deposition, through issuance of a subpoena if necessary." CSC Holdings, Inc. v. Redisi, 309 F.3d 988, 993 (7th Cir. 2002). Rule 45 lays out the procedures governing the use of subpoenas. Failure to comply with a properly issued subpoena exposes the person to whom it is directed with contempt or other court-imposed sanctions. Fed. R. Civ. P. 45(e). Rule 45 also imposes limits on parties' use of subpoenas, including modification or quashing of a subpoena in certain circumstances. Fed. R. Civ. P. 45(c)(3). A subpoena must be quashed when, inter alia, it will result in the disclosure of matter that is privileged or otherwise protected (provided that no exception to or waiver of the protection exists) or when compliance with it would impose an undue burden upon the subpoenaed party. Fed. R. Civ. P. 45(c)(3)(A)(iii), (iv).
As an initial matter, since the instant motion is filed not by Nims but by Wilson, we briefly address the threshold issue of standing. In general, only the recipient of a subpoena has standing to move to quash. 9A Charles Alan Wright and Arthur R. Miller, Federal Practice and Procedure § 2459. The parties have not discussed the issue, and the general rule stated by Wright and Miller is subject to exception if the subpoena infringes upon the legitimate interests of a movant whether or not that movant is the recipient of the subpoena. United States v. Raineri, 670 F.2d 702, 712 (7th Cir. 1982). Because part of Wilson's motion is premised upon work product privilege, which can be invoked by either an attorney or a client, Hobley v. Burge, 433 F.3d 946, 949 (7th Cir. 2006), Wilson's legitimate interests could be implicated by the subpoena under review. Consequently, we will assume that Wilson has standing to pursue his motion to quash.
Despite the general permissiveness of Fed. R. Civ. P. 30(a)(1) with regard to persons who can be deposed, Wilson argues that the subpoena should be quashed based upon an approach set out in Shelton v. American Motors Corp., 805 F.2d 1323 (8th Cir. 1986). In Shelton, during an attorney's deposition, she refused to answer questions that she felt sought information that was protected work product. Id. at 1325. The trial court, after concluding that the information was not in fact protected, held that the attorney's persistence in maintaining her silence was sanctionable and warranted default judgment against her client. Id. at 1326. On appeal, the Eighth Circuit Court of Appeals disagreed with the trial court's assessment of the nature of the information as well as the sanction imposed. Id. at 1330.
In reaching its decision, the appellate court discussed the overall propriety of a deposition of opposing counsel and reasoned that though trial counsel is not immune from deposition, the circumstances under which a deposition would be acceptable are limited. Id. at 1327. According to the Eighth Circuit, this exception would apply only when the sole means of obtaining the information was to depose opposing counsel and the information that counsel possessed was "crucial" to the opponent's case preparation. Id. at 1327. The court also noted that the ...