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Simon v. Northwestern University

United States District Court, N.D. Illinois, Eastern Division

February 3, 2017


          Judge, Robert M. Dow Jr.



         This motion to compel arises out of a malicious prosecution, conspiracy, and respondeat superior case pending in the Northern District of Illinois. In the underlying action, Plaintiff Alstory Simon alleges that a Northwestern Medill School of Journalism (hereinafter “Medill”) investigative journalism class led by Defendants Professor Protess and investigator Ciolino created false evidence to frame him for a double-murder he did not commit. Simon seeks to compel the production of documents and electronically stored information (hereinafter “ESI”) spanning over a 15-year period. Northwestern argues that production of the requested documents is not only burdensome but documents outside of a four-year period are irrelevant to this litigation. The parties are well aware of the serious allegations set forth in the complaint. However, for purposes of clarity, the Court will briefly review the most germane facts below:

         I. Background

         Simon complains that a Medill investigative journalism class framed him for a double-murder (hereinafter “murders”) to secure the release of the true killer, Anthony Porter. (Compl., ECF No. 1.) In 1983, Anthony Porter was sentenced to death for the murders. (Id. ¶ 80.) In 1998, Professor Protess's investigative journalism class began investigating Porter's case (hereinafter “Porter Investigation”). Ciolino, an alleged adjunct Professor at Northwestern University, was hired as an investigator on the case. (Id. ¶ 2.) In order to successfully claim Porter's innocence, Plaintiff asserts that Ciolino manufactured evidence and compelled false confessions to invent an alternative suspect: Plaintiff. (Id. ¶ 80.) Simon's complaint details various “investigatory” techniques employed by Protess and Ciolino that Plaintiff contends resulted in Porter's exoneration and Plaintiff's wrongful conviction for the very same double-murder. (See id.) In 1999, Plaintiff was sentenced to concurrent terms of thirty-seven years for murder and fifteen years for voluntary manslaughter. (Id. ¶ 115.)

         In October of 2013, the Conviction Integrity Unit of the Cook County State's Attorney's Office announced that it would reinvestigate the murders. (Id. ¶ 123.) After a year-long investigation, the State's Attorney's Office requested that the Circuit Court vacate the charges. (Id. ¶ 124.) State's Attorney Anita Alvarez issued a press release on the investigation and stated that, “we could reach no other conclusion but that the investigation of this case has been so deeply corroded and corrupt we can no longer maintain the legitimacy of this conviction.” (Id. ¶ 125.) Simon was freed from prison after fifteen years.

         The Porter Investigation was only one of many wrongful conviction investigations conducted by Protess and Medill's investigative journalism class. In 1990, prior to the Porter Investigation, Protess and the investigative journalism class investigated the case of David Dowaliby, who was convicted of murdering his seven-year old daughter. (Id. ¶ 22.) According to the complaint, largely based on Protess's investigation, the conviction was overturned. (Id. ¶ 24.) In 1996, Protess and the Medill Investigative Journalism class began investigating the wrongful conviction of four men known as the “Ford Heights Four.” (Id. ¶ 28.) All four men were exonerated. (Id.) These exonerations brought fame and prestige to the school. (Id. ¶ 30.) In 2014, after the Porter case, the investigative journalism class was involved in the wrongful conviction investigations of People v. Serrano and People v. McKinney. The complaint makes clear that the common theme throughout these investigations is that Protess and the investigative journalism class repeatedly used unethical investigatory tactics to secure the release of the “wrongfully convicted.” (See id. ¶¶ 32 & 133.) Finally, in 2011 Protess resigned from Northwestern.

         At this stage of the litigation, Plaintiff has moved to compel certain discovery from Protess and Northwestern. (Mot. Compel, ECF No. 194.) Specifically, Plaintiff states Defendants refused to produce 1) employment records; 2) ESI; 3) records of benefits received for investigations; or 4) documents pertaining to any of Protess's investigations that were not generated from 1995-1999, unless related specifically to Plaintiff's case. (Id. at 4.) Plaintiff states Northwestern refused to produce any discovery regarding its book sales or Medill donations, which Plaintiff argues is relevant to the respondeat superior claim. Plaintiff requests ESI from 1990 to present. (Id.) Finally, Plaintiff moves for an order compelling Ciolino to directly answer contention interrogatories. (Id.)

         II. Discussion

         A. Rule 26 and Proportionality Considerations

         Under Rule 26, a district court has broad discretion in matters relating to discovery. Patterson v. Avery Dennison Corp., 281 F.3d 676 (7th Cir. 2002). Rule 26 permits the discovery of any “nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case.” Fed.R.Civ.P. 26. The 2015 amendments confirmed the concept of “proportionality” by adding it to the language of Rule 26(b)(1). When determining the scope of discovery, Rule 26 requires the consideration of:

the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.

Id. Pursuant to Rule 26, information within the scope of discovery does not need to be admissible at trial. Id. Despite the “strong public policy in favor of disclosure of relevant materials, ” Patterson, 281 F.3d at 681, a district court should impose limits if “the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive.” Fed.R.Civ.P. 26. Prior to limiting discovery, “the court should consider the totality of the circumstances, weighing the value of the material sought against the burden of providing it, and taking into account society's interest in furthering ‘the truthseeking function' in the particular case before the court.” Bish v. Ind. Harbor Belt R.R., Case No. 2:15-cv-262-JD-JEM, 2016 U.S. Dist. LEXIS 156891 (N.D. Ind. Nov. 14, 2016) (citing Patterson, 281 F.3d at 681).

         We begin our analysis by applying the factors articulated in Rule 26. The Court finds the importance of the issues at stake in this action extremely high. The complaint on its face involves, among other things, two innocent civilians who were murdered, two people who lost their liberty for extended periods of time both of whom later had their convictions vacated, and a high profile journalism professor accused of employing unethical investigatory tactics at the behest of one of the nation's most prestigious universities. The loss of liberty alone, as alleged, is extremely significant: Porter, who was originally convicted of the murders, was sentenced to die; and Simon, who was subsequently convicted of the same double murders, spent 15 years behind bars. But the importance of this case transcends the parties involved: at its core, it questions the legitimacy of the criminal justice system as applied by the Cook County State's Attorney's office and the legitimacy of the criminal justice system as questioned by Northwestern and Professor Protess, all conducted squarely in the public eye. For these reasons, the Court finds this case to be of utmost importance.

         Moving to the amount in controversy, the Court finds this amount to be high as well. Notwithstanding Plaintiff's high demand, if Plaintiff prevails it will be nearly impossible to put a price tag on the damages he sustained. The Court also considers the relative burden between Simon, Ciolino, Protess, and Northwestern. Simon, who was incarcerated for fifteen years, is currently unemployed and is a person of very modest financial means. Ciolino is being represented pro bono.[1] Protess's counsel states his financial resources are extremely limited and the burdens placed on him based on this litigation are high, risking Protess's ability to continue to retain counsel. Conversely, the Court finds there is a relatively low burden on Northwestern to produce the documents requested by Plaintiff.[2]

         Finally, the Court compares the parties' access to relevant information. In the instant case, Simon has the least access to the most relevant information. The two primary issues in this case are why Simon was investigated and identified by defendants as the perpetrator of the murders (i.e., was there a malicious prosecution, a series of unintended mistakes, or some other explanation?), and whether defendants Ciolino and Protess were acting within the scope of their employment for respondeat superior purposes when any improper conduct occurred. Evidence of the intricacies of the Porter/Simon investigation are controlled by the defendants. Evidence of other relevant conduct that might inform the issue of malicious prosecution (e.g., circumstantial evidence of intent, or lack thereof) is also almost wholly within defendants' control. Finally, as to the issue of respondeat superior, Northwestern has taken the position that it “lacks knowledge or information sufficient to form a belief as to the truth or falsity of” whether Protess was acting as an employee and agent of Northwestern at all relevant times alleged in the complaint. (See Northwestern Answer, ECF No. 78, ¶ 15.) This issue, of course, is determinative as to the respondeat superior claim. Of all parties, Northwestern has the greatest access to all relevant information to answer that fundamental and extremely significant inquiry.[3] Defendants Ciolino and Protess would also seemingly have access to some of the relevant information necessary to litigate this matter. As to the malicious prosecution claim, both Protess and Ciolino likely have relevant information. At least as to Protess, the ability to easily retrieve such information seems compromised. Because Protess and Ciolino have definitively answered the question of scope of employment (see note 3, infra), their access to relevant information to support their positions as to respondeat superior issues is less compelling to the Court.

         B. Fed.R.Evid. 608(b) as Justification for Scope of Discovery

         Plaintiff argues that the requested information will be probative of Protess's character for truthfulness or untruthfulness under Federal Rule of Evidence 608(b). Under that Rule, “extrinsic evidence is not admissible to prove specific instances of a witness's conduct in order to attack or support the witness's character for truthfulness. But the court may, on cross- examination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness.” Id. The Court finds that an analysis under 608(b) will invite an endless discoverable timeframe. Without specific discovery requests that particularly identify likely 608(b) evidence, allowing discovery to be guided by the potential discovery of 608(b) evidence would result in a discovery scope that generally ignores the proportionality dictate of Rule 26.[4]A false statement made by a key witness may be a decisive point in a trial that turns the case for one side or the other. Significant “false statements” would always meet the relevancy test, but premising wide ranging discovery in search of such evidence would undermine the fundamental principles of Rule 26. Therefore, the Court declines to expand the scope of discovery on the basis of information that might be admissible under 608(b).

         C. Fed.R.Evid. 404(b) as Basis for Relevancy of Discovery Request

         Simon seeks evidence relating to Protess's and Ciolino's other investigations into alleged wrongful convictions, and argues such evidence may be admissible under Rule 404(b). In particular, Simon seeks records, documents, ESI, Communications, and press releases from Northwestern.

         Under Rule 404(b), evidence of a “crime, wrong, or other act” is admissible for proving “motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” 404(b) excludes relevant evidence of crimes, wrongs, or other acts to show a person's propensity to act or behave a certain way. Although evidence of prior acts is the most common 404(b) evidence, the Rule does not forbid the use of subsequent acts. See United States v. Betts, 16 F.3d 748, 757 (7th Cir. 1994) (citation omitted) (“Rule 404(b), of course, does not restrict evidence concerning the defendant's other acts to events which took place before the alleged crime; by its very terms, 404(b) does not distinguish between ‘prior' and ‘subsequent' acts.”)

         Under the old Seventh Circuit jurisprudence, prior to admitting evidence at trial, a district court was required to determine that the evidence satisfied each of four conditions:

(1) the evidence is directed toward establishing a matter in issue other than the defendant's propensity to commit the crime charged, (2) the evidence shows that the other act is similar enough and close enough in time to be relevant to the matter in issue, (3) the evidence is sufficient to support a jury finding that the defendant committed the similar act, and (4) the ...

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