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Scott v. City of Chicago

August 3, 2010

LARRY SCOTT, PLAINTIFF,
v.
CITY OF CHICAGO, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Milton I. Shadur Senior United States District Judge

MEMORANDUM OPINION AND ORDER

This Court's July 20, 2010 "Opinion I" dealt with the large number of post-Final Pretrial Order ("FPTO") motions in limine filed by plaintiff Larry Scott ("Scott"), and its July 27 "Opinion II" began the same undertaking as to the even larger group of motions in limine filed by defendants. This memorandum order takes up where Opinion II left off, addressing the remaining motions (Nos. 13 through 28) tendered by defense counsel.

As before, the threshold matter of any uncontested motions should be gotten out of the way. In that respect, Motion 15 (part of Dkt. 134) has been withdrawn by defendants as duplicative of defendants' Motion 18 (also part of Dkt. 134), and Motion 27 (part of Dkt. 143) has also been withdrawn. Now on to the contested motions.

Motion 13 (part of Dkt. 134)

Defense counsel label this motion as seeking "to bar plaintiff and his witnesses from withdrawing attorney-client privilege and work product doctrine." "Withdrawing" is an odd way to put the matter--from Motion 1-3, it appears that what is meant by defendants is that Scott, having assertedly invoked the attorney-client privilege and work product doctrine, should be prevented from waiving such assertions now.

What Motion at 2 says on that score, but without providing any portion of Scott's deposition transcript, is this:

In this matter, Plaintiff made clear during deposition that he was not waiving his attorney-client privilege regarding communications with his counsel. Plaintiff's counsel argued vociferously that Plaintiff was not waiving his attorney-client privilege during deposition. Plaintiff refused to testify at deposition, citing his attorney-client privilege, as to all communications with his counsel including what he may have said regarding coercion, his physical condition while in custody, and any pain he may have been experiencing.

But Scott responds by quoting (Dkt. 150 at 1-2) from page 282 of Scott's deposition transcript, where he testified that he had told his public defender that he was coerced into giving a confession. And more importantly, he so testified based on the statement by defense counsel (the Chief Assistant Corporation Counsel for the City of Chicago) that he had waived the attorney-client privilege by bringing the claim of coerced confession.

Here is the relevant exchange between the lawyers, Basileios Foutris ("Foutris") for Scott and Arlene Martin ("Martin") for defendants, with Foutris objecting on privilege grounds, Martin rejecting that position and Foutris then acceding (Scott Dep. Tr. 280-81):

MR. FOUTRIS: So I think it can be pretty clearly stated if you ask him, aside from your attorneys, did you tell this to anyone else? I think your answer is going to be no. And I think that tells you the answer you're looking for without actually invading the attorney-client privilege.

MS. MARTIN: But you waive that when you bring a claim of coerced confession.

MR. FOUTRIS: Okay.

MS. MARTIN: That's why I'm asking who was the first person that he told about being coerced into giving a confession.

MR. FOUTRIS: Is that the only thing you want to know was the first person he spoke to?

MS. MARTIN: And when.

MR. FOUTRIS: Without getting into more specifics of what he said?

MS. MARTIN: Those are the two questions I'm asking.

MR. FOUTRIS: Okay. Well, let me talk to him.

With Foutris then returning to the issue and stating his view, Martin responded (id. at 281):

Okay. Just so we're clear, I believe that that's waived when you bring that claim.

And the deposition then continued in this fashion (id. at 282):

BY MS. MARTIN:

Q: But I'm going [sic] ask these two questions: Who was the first person you told about being ...


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