United States District Court, C.D. Illinois, Springfield Division
SCHANZLE-HASKINS, U.S. MAGISTRATE JUDGE.
matter comes before the Court on the People of the State of
Illinois (Illinois) Motion to Quash Plaintiff's
Subpoena(s) (d/e 42). For the reasons set forth below, the
Motion is DENIED.
Curtis Lovelace was charged with murdering his wife Cory
Lovelace. He was tried twice in Illinois state court. The
first trial ended in a mistrial because the jury could not
reach a unanimous verdict. The jury in the second trial
acquitted Curtis Lovelace. Plaintiffs then brought this
action against Quincy, Illinois, Police Detective Adam
Gibson; Quincy Police Chief Robert Copley; Quincy Police
Sergeant John Summers; Quincy Police Lieutenant Dina Dreyer;
Quincy Police Detective Anjanette Biswell; Adams County,
Illinois, First Assistant States Attorney Gary Farha; Adams
County Coroner James Keller; the City of Quincy, Illinois;
and Adams County, Illinois. The Plaintiffs alleged claims
under 42 U.S.C. § 1983 for withholding exculpatory
evidence, malicious prosecution, unlawful detention,
conspiracy to violation Plaintiffs' constitutional
rights, and supervising officers' failure to intervene;
and state-law claims for false imprisonment, intentional
infliction of emotional distress, malicious prosecution,
civil conspiracy, municipal respondeat superior liability,
and indemnification by the Defendant municipalities.
Complaint (d/e 1), Counts I-XI.
discovery, Plaintiffs served deposition subpoenas (Subpoenas)
on non-parties Edwin R. Parkinson, Chief Special Prosecutor,
Office of Illinois State's Attorneys Appellate
Prosecutor; and David J. Robinson, Deputy Director, Special
Prosecutor, Office of Illinois State's Attorneys
Appellate Prosecutor. Parkinson tried both of the cases
against Curtis Lovelace, and Robinson assisted Parkinson in
conducting the second trial. The state court appointed the
Office of Illinois State's Attorney Appellate Prosecutor
to try the case because the Adams County State's Attorney
had a conflict of interest. Curtis Lovelace was an attorney
and a part-time state's attorney for Adams County at the
time of his wife's death. See Plaintiffs'
Response to the State of Illinois' Motion to Quash
Plaintiff's Subpoena(s) (d/e 45) (Response), at 3.
The depositions are set for January 10, 2018.
Motion, attached Subpoenas.
has now moved to quash the Subpoenas.
Court may quash a subpoena that requires disclosure of
privileged or otherwise protected matter, or imposes an undue
burden on the subpoenaed party. Fed.R.Civ.P. 45(d)(3)(A)(iv).
To determine whether the subpoena imposes an undue burden,
the Court should “weigh the burden to the subpoenaed
party against the value of the information to the serving
party.” Amini Innovation Corp., v. McFerran Home
Furnishings, Inc., 300 F.R.D. 406, 409 (C.D. Ca. 2014);
see Northwestern Memorial Hosp. v. Ashcroft, 362
F.3d 923, 927 (7th Cir. 2004). The burden imposed
on non-parties is entitled to “special weight” in
performing this calculus. Cusumano v. Microsoft
Corp., 162 F.3d 708, 717 (1st Cir. 1998);
Mosely v. City of Chicago, 252 F.R.D. 421, 434 (N.D.
Ill. 2008). Illinois has the burden of proof to demonstrate
that the Subpoenas should be quashed. See CSC Holdings,
Inc., v. Redisi, 309 F.3d 988, 993 (7th Cir.
argues that Parkinson and Robinson are protected from
testifying under the Silent Witness doctrine. The case cited
by Illinois hold that a criminal defendant in a criminal case
cannot subpoena the prosecutor of that case to testify in
that case. People v. Palacio, 240 Ill.App.3d 1078,
1094, 607 N.E.2d 1375, 1384-85 (Ill.App. 4th Dist.
1993). This is not a criminal case and Parkinson and Robinson
are not attorneys of record in this case. The Silent Witness
doctrine does not apply.
Illinois asks the Court to “require plaintiff to
specify the subject matter of the deposition and limit the
scope of said deposition to those matters and to a reasonable
time.” Motion, ¶ 3. Illinois quotes
Williams v. Sandel, 2010 WL 11538240 (E.D. KY.
February 12, 2010) for the proposition, that
“depositions of attorneys in general and of prosecutors
in particular are often closely scrutinized to avoid the
obvious potential for abuse and to prevent unnecessary
impingement upon prosecutorial authority and
discretion.” Williams, 2010 WL 1153820, at *4.
case, the Court sees no risk of abuse or impingement on
prosecutorial discretion. The risk of abuse or impingement
comes most often when a party seeks to make an attorney
representing a party in a case a witness in the same case.
See Ill. Sup. Ct. RPC 3.7 (advocate in a case cannot
be a witness in the same case); Palacio, 607 N.E.2d
at 1384-85 (Silent Witness doctrine). The criminal case
against Curtis Lovelace is over here so those concerns do not
exist. Furthermore, Parkinson and Robinson can refuse to
answer questions or produce documents that are protected by
applicable privileges or other applicable rule or law.
See Fed.R.Civ.P. 30(c)(2). The depositions are also
already limited in time. Fed.R.Civ.P. 30(d).
and Robinson are likely to have discoverable information.
Parkinson and Robinson discussed their interactions with
Gibson on the record in second criminal trial and entered
into a stipulation about those interactions in that case.
See Motion, at 2; Response, at 8. Parkinson
and Robinson clearly have discoverable information about the
Gibson's conduct. These prosecuting attorneys in
Williams had little or no discoverable information.
The plaintiff in Williams also brought § 1983
claims of malicious prosecution against law enforcement
officers. The Williams plaintiff served subpoenas on
four members of the Commonwealth Attorney's office. Three
of the proposed deponents had no connection with the
underlying prosecution of the Williams plaintiff and
the fourth had only limited relevant information.
Williams, 2010 WL 11538240, at *3. Here Parkinson
and Robinson have discoverable information. The
Williams court quashed the subpoenas on the three
individuals with no involvement in the criminal case and
limited the scope and length of the deposition of the fourth
to the matters on which he had knowledge. Here, Parkinson and
Robinson have personal knowledge of relevant significant
relevant information. The Court, in its discretion, finds
that the restrictions imposed in Williams are not
argues that the depositions are unnecessary because the
Parkinson and Robinson fully discussed their interactions
with Gibson on the record in the second criminal trial and
stipulated to those matters. The Court disagrees. Parkinson
and Robinson's statements as counsel of record in a
criminal trial were not under oath. Their statements may now
be used for impeachment, but may not be admissible as
substantive evidence if, for example, Parkinson or Robinson
are not available when this matter goes to trial.
See Fed.R.Evid. 613, 803(8)(A)(ii), 804(b)(1). The
stipulation in the second criminal trial would not be
admissible in this case because many if not most of the
parties in this case were not parties in the second criminal
trial and did not join the stipulation.
addition, Plaintiffs may wish to ask seek information that is
relevant in this case that was not relevant in the second
criminal trial. The elements of the claims in this case
differ from the issues in the second criminal trial.
Plaintiffs may wish to ask questions specifically relevant to
the elements in this case. Moreover, the Plaintiffs are
entitled to inquire whether Parkinson and Robinson have other
relevant information. Parkinson and Robinson's statements
on the record in ...