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Simon v. Northwestern University

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

May 4, 2017


          Robert M. Dow Jr. Judge.


          M. David Weisman United States Magistrate Judge.

         Currently before the Court is Defendants Northwestern and Paul Ciolino's (hereinafter “Defendants”) motion to compel the Cook County State's Attorney's Office (hereinafter “CCSAO”), which is not a party to this case, to produce documents and emails responsive to subpoenas served by the Defendants. (Defs.' Mot. Compel, ECF No. 240; see Judge Dow Opinion, ECF No. 218.) The parties are well acquainted with the facts so we briefly discuss only the pertinent details below:

         I. Background

         Plaintiff Alstory Simon alleges that Defendants framed him for a double-murder that he did not commit. (Compl., ECF No. 1.) Specifically, Simon states that Paul Ciolino, a private investigator, and a Northwestern University journalism class' unethical investigatory techniques led to his conviction of the murders. Among other things, Plaintiff states that Defendants fabricated evidence, coerced witnesses, and knowingly obtained a false confession from him to frame him for the murders. (Id. ¶¶ 80, 83, 89, 93.) Plaintiff alleges that, based on this manufactured evidence, he was convicted and subsequently spent 15 years behind bars. (Id. ¶ 2.) Approximately three years after his conviction, Simon filed a pro se post-conviction petition proclaiming his innocence. (Id. ¶ 116.) Shortly thereafter, key witnesses from Simon's trial, who originally testified to his guilt, began to recant their statements. (Id. ¶¶ 118-121.) In October of 2013, the CCSAO announced that it would reinvestigate Simon's case. (Id. ¶ 123.) During the investigation, the CCSAO interviewed more than 100 witnesses. (Id.) After the conclusion of the year-long investigation, the CCSAO requested that the trial court vacate the charges against Simon. (Id. ¶ 125.) In a press release explaining the CCSAO's decision, then-State's Attorney Anita Alvarez stated that “[a]t the end of the day and in the best interests of justice, we could reach no other conclusion but that the investigation of [the Simon] case has been so deeply corroded and corrupted that we can no longer maintain the legitimacy of this conviction.” (Id.)

         II. Motion to Compel

         In an effort to defend the claims against them, Defendants subpoenaed the CCSAO for various documents relating to the Simon investigation. (Defs.' Mot. Compel, ECF No. 240 at 2.) The CCASO objects to producing two categories of documents responsive to the requests to produce: 1) emails from the time period encompassing the CCSAO's re-investigation of the Simon case; and 2) and three other responsive documents. Below, we address each of these discovery issues.

         A. Emails

         At the Court's April 24, 2017 status hearing, the parties advised the Court that they met and conferred and came to an agreement regarding email production and the proposed search terms. (4/24/17 Status Hearing, ECF No. 279.) Absent any indication otherwise from the parties, the Court presumes production is occurring in the normal course.

         B. Documents

         Next, we consider the three documents. The first document, the CCSAO contends is not relevant to this case. On April 13, 2017, the Court ordered the CCSAO to submit the document to the Court for an in camera inspection to determine the relevancy of the document. The Court has reviewed the document and agrees that it has absolutely no relation to this case. Accordingly, the document is outside the scope of discovery and does not need to be produced.

         As to the second document, after the CCSAO reviewed it, the CCSAO determined that it is not privileged. Therefore, the CCSAO will produce this document without the Court needing to resolve any issues.

         Thus, the final, and only document in dispute, is an internal memorandum (hereinafter “internal memo”) to Anita Alvarez, the then-Cook County State's Attorney, and her First Assistant, Dan Kirk, dated July 33, 2014. The CCSAO argues the internal memo is protected by the deliberative process privilege. (CCSAO Mot. at 3, ECF No. 248.)

         The CCSAO argues that the internal memo is privileged and thus undiscoverable. The CCSAO states that the memo reveals the “‘mental impressions, assessment of evidence, observations about witnesses, theories of prosecution of Alstory Simon . . ., and the internal CCSAO deliberations about the prospect of seeking to vacate Alstory Simon's conviction.'” (CCSAO Mot. at 3-4, ECF No. 248.) (quoting Aff. of Joseph Magats ¶ 4.) For purposes of resolving this motion, the Court accepts these representations as true. The CCSAO admits that the Illinois Supreme Court does not recognize a “blanket deliberative process privilege” but nonetheless argues that it recognizes a “privilege covering certain deliberative process materials.” (Id. at 3.) Northwestern argues the CCSAO cannot maintain a deliberative process privilege because “(1) there is no deliberative process privilege under Illinois law; (2) the deliberative process privilege does not apply when, as here, the deliberative ...

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