Name of Assigned Judge Sitting Judge if Other or Magistrate Judge Philip G. Reinhard than Assigned Judge P. Michael Mahoney
Defendant Poole's motion to compel responses to production requests 9 and 10 by Defendant City of Rockford  is granted. Defendant City of Rockford is to respond to Defendant Poole's request within a reasonable time, but not later than 2/22/2011.
O[ For further details see text below.] Notices mailed by Judicial staff.
This case stems from an unfortunate incident in which Defendants North and Poole were involved in a shooting that resulted in the death of Mark Barmore. Defendants North and Poole are both police officers who were employed by Defendant City of Rockford (hereinafter referred to as "the City") at the time of the shooting, and continue to be employed by the City at this time. Two civil cases have been filed against Defendants North, Poole, and the City, which have been consolidated for the purposes of discovery. Plaintiff Maryann Barmore filed suit, both in her personal capacity and in her capacity as special administrator of the decedent's estate, alleging wrongful death and survivorship claims. Plaintiffs in the second case, comprised of the entities that control the facility in which Mr. Barmore was shot and at least a dozen individuals who were present at the time of the shooting, have alleged state and federal law claims based on negligent and intentional infliction of emotional distress, false imprisonment, negligent retention, and loss of income.
Because Defendant Poole has filed a motion to compel against the City, a co-defendant, the court will briefly address the procedural history of this case. In response to the Plaintiffs' complaints, counsel for the City entered appearances and filed answers on behalf of all defendants in both cases on November 30, 2009. Counsel for the City continued to represent all Defendants until July 28, 2010, at which time the court allowed counsel for the City to withdraw as counsel for Defendant Poole based on the understanding that the City discovered it had a conflict and could no longer represent Defendant Poole. On August 18, 2010, the court similarly allowed counsel for the City to withdraw as to Defendant North. It is the court's understanding that Defendants North and Poole each retained private counsel at the expense of the City.
Now, Defendant Poole has filed a motion to compel the production of certain documents by the City. Specifically, the parties are at issue as to two requests that combine to seek any and all correspondence and documents relating to the Executive Summary and/or Report (hereinafter referred to as "the Report") prepared by Christie E. Lopez and Kelli M. Evans of Independent Assessment & Monitoring, LLP ("IAM"), which Defendant Poole alleges the City commissioned in response to the Barmore shooting. The City has included a number of documents otherwise subject to this request in a privilege log, and argues they are covered by Rule 26(b)(4)(D), the work product doctrine, the self-critical analysis privilege, and the deliberative/executive process privilege. Defendant Poole contends the information is not covered by any discovery doctrine or privilege and should be turned over pursuant to its request.
As with any discovery motion, the court will first determine whether the information requested appears reasonably calculated to lead to the discovery of admissible evidence. Defendant Poole has requested background documents and correspondence concerning an investigation of the event at the center of this case. The publicly released Report resulting from the investigation addressed Defendant Poole's actions that relate to this lawsuit. The court finds that documents and communications related to the investigation are relevant under Rule 26.
The City has refused to turn over the documents on the basis of a number of privileges. The parties' briefs before the court have focused on the discovery limitations contained in Rule 26(b)(4)(D). This rule operates similar to the work product doctrine, and states that:
"a party may not, by interrogatories or deposition, discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or to prepare for trial and who is not expected to be called as a witness at trial."
FED. R. CIV. P. 26(b)(4)(D). The court notes that it is not clear from the language of the rule that the requested discovery would be covered. Defendant Poole seeks documents or correspondence related to facts or opinions that were ultimately released and published in a public report. On its face, Rule 26(b)(4)(D) pertains to facts known or opinions held by an expert and obtained through interrogatories or depositions. Here, the facts or opinions have already been released in a process unrelated to this litigation and Defendant Poole is seeking documents or tangible things. Thus, it is unclear to the court that documents related to publicly released expert facts or opinions fall within the parameters of the non-testifying expert discovery exemption, or whether the City's theory is reliant on the work-product doctrine codified in Rule 26(b)(3).
Assuming that the documents might be covered by either Rule 26(b)(4)(D) or Rule 26(b)(3), the court will address the parties' contentions as to whether the documents sought were created by experts in anticipation of litigation or to prepare for trial, as is required for Rule 26(b)(4)(D) or the work-product doctrine to apply. The party claiming the privilege or qualified immunity from discovery has the burden of showing that the requested materials were created in anticipation of litigation. See McNally Tunneling Corp.
v. City of Evanston, 2002 WL 59115, at *2 (N.D. Ill. Jan. 14, 2002). The Seventh Circuit has further defined "in anticipation of litigation" to mean that "the document[s] can fairly be said to have been prepared or obtained because of the prospect of litigation. Binks Mfg. Co. v. National Presto Indus., Inc., 709 F.2d 1109, 1118-19 (7th Cir. 1983). The ...