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Estate of Amon Paul Carlock, Jr., Deceased, By Mary L. andreatta-Carlock, Executor v. Neil Williamson

January 26, 2011

ESTATE OF AMON PAUL CARLOCK, JR., DECEASED, BY MARY L. ANDREATTA-CARLOCK, EXECUTOR, PLAINTIFF,
v.
NEIL WILLIAMSON, AS SHERIFF OF SANGAMON COUNTY; ET AL., DEFENDANTS.



The opinion of the court was delivered by: David G. Bernthal U.S. Magistrate Judge

E-FILED

Thursday, 27 January, 2011 08:59:43 AM

Clerk, U.S. District Court, ILCD

ORDER

In July 2009, Plaintiff Estate of Amon Paul Carlock, Jr. filed a Fourth Amended Complaint and Jury Demand (#138) against Neil Williamson, as Sheriff of Sangamon County, and other defendants. The action is brought pursuant to 42 U.S.C. § 1983. Federal jurisdiction is based on federal question pursuant to 28 U.S.C. § 1331 because Plaintiff has alleged a violation of federal law.

In October 2010, Defendants filed Emergency Motion by Defendants for Telephone Conference and To Seal, or in the Alternative Strike, Plaintiff's Motion for Sanctions and Memorandum of Law in Support of Motion for Sanctions and All Exhibits Thereto (#274). Plaintiff subsequently filed Plaintiff's response to Defendants' Emergency Motion (#291) (hereinafter "Emergency Motion"). Defendants filed Defendants' Motion for Leave to File Reply (#296), which this Court denied. After reviewing the parties' pleadings and memoranda, this Court GRANTS Defendants' Emergency Motion (#274).

I. Background

Plaintiff brings suit against Defendants under 42 U.S.C. § 1983, alleging that decedent Amon Paul Carlock, Jr. (hereinafter "Carlock") was subjected to excessive force and received inadequate medical treatment while incarcerated in Sangamon County Jail. The following summary of events is taken from Plaintiff's complaint.

Carlock was incarcerated for pre-trial detention on October 9, 2007. Plaintiff alleges that Carlock was an insulin dependent diabetic, and that physicians at the jail failed to provide insulin or monitor his blood sugar levels. On November 15, 2007, a doctor at the jail ordered a blood test for Carlock. The results of that test indicated that Carlock required medical attention. On November 16, 2007, arrangements were made to transport Carlock to the hospital. As correctional officers attempted to prepare Carlock to be transported, Carlock was not cooperative; Plaintiff alleges Carlock's failure to cooperate was related to his medical condition. To restrain Carlock, Sgt. Guy tasered him. Then, Correction Officer Furlong applied force to Carlock's back, thus compressing his chest, while Carlock was face down on the ground. While Furlong held Carlock in this position, Carlock stopped breathing. By the time the previously scheduled ambulance arrived to transport Carlock to the hospital, Carlock had no pulse. He was pronounced dead several hours later.

In the course of discovery, Plaintiff came to believe that Defendants failed to preserve audio, video, and electronically stored information (ESI) connected to these events. Plaintiff filed Plaintiff's Motion for Sanctions for Spoilation of Evidence (#272). Plaintiff attached several exhibits that Defendants had produced in discovery. Defendants now assert that some of these attachments were inadvertently disclosed communications and information covered by attorney-client privilege or work product protection. In their Emergency Motion, Defendants sought immediate intervention by the Court to have Plaintiff's entire motion, memorandum, and exhibits temporarily sealed until the situation could be resolved. In response, on October 12, 2010, Magistrate Judge Cudmore issued a text order to temporarily seal certain attachments to Plaintiff's memorandum in support for its motion for sanctions.

This Court now addresses whether those documents sealed by Judge Cudmore, and certain other documents subsequently filed under seal by Plaintiff, should remain sealed. This requires the Court to address the issue of whether attorney-client privilege or the work product doctrine protects certain documents filed by Plaintiff, and if so, whether Defendants waived privilege under FED. R. EVID. 502. Additionally, Defendants ask the Court to consider whether Plaintiff violated FED. R. CIV. P. 26(b)(5), and whether sanctions are appropriate for any violations that may have occurred.

II. Standard

Attorney-client privilege applies where legal advice of any kind is sought from a professional legal adviser in his capacity as such, and the communications relate to that purpose, are made in confidence by the client, and are at his instance permanently protected from disclosure. United States v. White, 950 F.2d 426, 430 (7th Cir. 1991). It may apply to a client's statements, and to an attorney's statements, where those communications constitute legal advice, or tend directly or indirectly to reveal the substance of a client confidence. Judson Atkinson Candies, Inc. v. Latini-Hohberger Dhimantec, 529 F.3d 371, 388 (7th Cir. 2008). The party seeking to invoke privilege has the burden to establish all the essential elements. White, 950 F.2d at 430. The scope of privilege may be narrow where it is in "derogation of the search for truth." Id.

The work product doctrine protects materials prepared in anticipation of litigation or for trial by or for a party, or by or for a party's representative. FED. R. CIV. P. 26(b)(3). Where work product protection applies, materials are only discoverable upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party's case, and that the party is ...


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