For the reasons discussed in the accompanying statement, Plaintiff's motion to compel production of certain documents [188] [189-1] is granted in part and denied in part. Defendants are to produce the compelled documents by 2/11/2022.

I. BACKGROUND

This case concerns plaintiff Anthony Jakes’ vacated conviction for acting as a lookout during the 1991 murder of Rafael Garcia. Jakes alleges that his conviction was the product of police misconduct on the part of defendants Kenneth Boudreau and Michael Kill, who Jakes maintains beat and coerced him into falsely confessing to Garcia's murder (among other alleged abuses). At the time, Jakes was fifteen years old; he was subsequently sentenced to twenty years in prison, and served his full sentence before being released on parole in 2012. In 2018, Jakes’ conviction was vacated, and in 2019, Jakes obtained a certificate of innocence. Jakes now brings suit against Boudreau, Kill's estate, several other Chicago Police Department officers involved in the Garcia murder investigation, and the City of Chicago. At issue is Jakes’ motion to compel production of certain categories of documents (Dkts. 188, 189-1) (“Mot.”).

II. LEGAL STANDARD

Under the Federal Rules of Civil Procedure, “parties may obtain discovery regarding 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(1). “Information within this scope of discovery need not be admissible in evidence to be discoverable.” Id. Rule 26 vests the courts with broad discretion in determining the scope of discovery. See, e.g., Spiegla v. Hull, 371 F.3d 928, 944 (7th Cir. 2004) (noting that the court has “broad discretion over discovery matters.”); KISS Pharm LLC v. Becker Pro. Dev. Corp, No. 18 C 7848, 2021 WL 3207822, at *4 (N.D. Ill. July 29, 2021) (same) (citations omitted). A party may seek an order to compel discovery when an opposing party fails to respond to discovery requests or has provided evasive or incomplete responses. Fed. R. Civ. P. 37(a)(2)-(4) (2018). The burden “rests upon the objecting party to show why a particular discovery request is improper.” Kodish v. Oakbrook Terrace Fire Protection Dist., 235 F.R.D. 447, 450 (N.D. Ill. 2006).

III. DISCUSSION

Plaintiff moves to compel production of three categories of documents, each of which is allegedly responsive to plaintiff's Request for Production 20 to the individual defendants and Request for Production 22 to the City. RFP 20/22, in its initial incarnation, sought a wide variety of communications related to this case:

Mot. Ex. B at No. 20.

The parties’ current dispute relates to subsections (d) and (f). Specifically, plaintiff seeks to compel production of: (1) individual defendants’ and their agents’ communications with the Special Prosecutor who handled plaintiff's post-conviction proceedings; (2) individual defendants’ and their agents’ communications with the FBI; and (3) documents in the Chicago Police Department's gang and tactical unit files related to the Garcia murder investigation. The Court addresses each request in turn.

1. Special Prosecutor Communications

First, plaintiff moves to compel production of the individual defendants’ and their agents’ communications with the Special Prosecutor who handled plaintiff's post-conviction proceedings.[1] Although defendants object to producing any such communications, most of the parties’ dispute revolves around communications between Rock Fusco & Connelly, the law firm representing the individual defendants in this litigation, and the Special Prosecutor's Office. Plaintiff maintains that defendants’ and Rock Fusco's communications with the Special Prosecutor could be probative in several respects. According to plaintiff, depending on their substance, the communications at issue could help plaintiff establish that defendants sought to hide misconduct, that defendants claimed not to remember the relevant investigation (thus impeaching their deposition testimony), that defendants sought to ensure plaintiff remained convicted so they could avoid being sued, or that defendants considered exercising their rights against self-incrimination.

The Court agrees with plaintiff that the requested communications with the Special Prosecutor's Office related to or in connection with plaintiff's post-conviction proceedings[2] are discoverable and should be produced. As an initial matter, the parties dispute the nature of Rock Fusco's representation of Boudreau. Defendants posit that Rock Fusco did not represent Boudreau for purposes of defendant's post-conviction proceedings until after plaintiff's conviction was vacated. At that point, Rock Fusco says it represented Boudreau in a failed attempt to intervene in plaintiff's certificate of innocence proceedings. Although Rock Fusco may not have filed a formal appearance for Boudreau prior to the certificate of innocence proceedings, plaintiff attaches post-conviction hearing transcripts in which Rock Fusco attorneys identify themselves as counsel for Boudreau. Mot. Ex. V at 13 (Rock Fusco attorney Eileen Rosen appears on behalf defendant Boudreau) & Mot. Ex. W (Rock Fusco attorney Stacy Benjamin indicates on the record that she represents defendant Boudreau in related litigation, but not for purposes of participating in the post-conviction proceedings). And during the parties’ meet and confer discussions on this motion, counsel for the individual defendants confirmed that Rock Fusco communicated with the Special Prosecutor's Office during plaintiff's post-conviction proceedings. See Mot. Ex. S (“On behalf of the Officers .... Nonetheless, I can confirm that RFC [the law firm of Rock Fusco] communicated with the Office of the Special Prosecutor during the pendency of the PC [post-conviction] proceeding.”). Defendants place significant emphasis on the fact that Rock Fusco did not formally represent Boudreau for purposes of participating in plaintiff's post-conviction proceedings, but the Court does not find that position to be determinative. Ultimately, what is important is that there is evidence that Rock Fusco represented Boudreau in some capacity during the pendency of plaintiff's post-conviction proceedings (even if not necessarily for purposes of participating in those proceedings) and admittedly had communications with the Special Prosecutor's Office related to those proceedings.

Next, defendants contend that the requested communications are irrelevant. Defendants first posit that the kind of potentially revealing communications plaintiff identifies in his motion would not have occurred in the context of plaintiff's certificate of innocence litigation. But as the Court just noted, Rock Fusco attorneys represented Boudreau in some capacity during the pendency of plaintiff's post-conviction proceedings, and defendants have further conceded that Rock Fusco communicated with the Special Prosecutor's Office who handled the post-conviction proceedings. The universe of potentially relevant documents is thus not limited to documents related to plaintiff's certificate of innocence litigation.

Moreover, defendants’ argument loses the forest for the trees: the requested documents are discoverable because they represent the defendants’ and their agents’ communications directly related to proceedings involving allegations in plaintiff's complaint. Plaintiff's post-conviction and certificate of innocence proceedings concerned the same investigation and allegedly false conviction that forms the underlying basis of this case. Defendants’ and their agents’ communications with the Special Prosecutor's Office during such proceedings are potentially probative of numerous issues in this case. To take one example, as plaintiff argues, if defendants or their agents made representations to the Special Prosecutor regarding their memory (or lack thereof) of the events surrounding the Garcia case, those statements could be used impeach defendants’ testimony in this matter. Defendants’ and their agents’ communications with the Special Prosecutor related to these proceedings are thus discoverable.

Defendants also question the admissibility of Rock Fusco's communications with the Special Prosecutor's Office but the potential inadmissibility of the documents does not bear on their discoverability. As both plaintiff and defendants recognize, courts have held that an attorney can in some circumstances be her client's agent for purposes of Federal Rule of Evidence 801(d)(2)(D), which permits admission of statements by agents of a party opponent. See, e.g., United States v. Harris, 914 F.2d 927, 931 (7th Cir. 1990) (“An attorney may be the agent of his client for purposes of Rule 801(d)(2)(D).”). Moreover, admissibility decisions are to be made by the District Judge presiding over the eventual trial in this matter, and Federal Rule of Civil Procedure 26(b)(1) expressly provides that information “need not be admissible in evidence to be discoverable.” Fed. R. Civ. P. 26(b)(1). Ordering production at this point does not preclude Defendants from asserting some privilege barring disclosure of certain of the requested communications, assuming they can in good faith claim some privilege not broken by communication with a third party. The Court declines to find at this point that potentially relevant documents are not discoverable simply because they reflect an attorney's communications.

Finally, defendants argue that the Special Prosecutor communications are irrelevant to the extent they reflect the individual defendants’ consideration of asserting their rights against self-incrimination. Even if the Court agreed with defendants, however, the requested documents would still be discoverable. Plaintiff cited defendants’ possible consideration of invoking their Fifth Amendment rights as an example, just among many, of the types of communications that could exist between the defendants, their agents, and the Special Prosecutor's Office. (Mot. at 7-8.) Moreover, in the case defendants cite, DeLeon-Reyes v. Guevara, No. 1:18-CV-01028, 2020 WL 3050230, at *11 (N.D. Ill. June 8, 2020), the court recognized that information testing “whether the defendant officers truly believe their testimony may self-incriminate them” was plausibly relevant in a similar false conviction case. In DeLeon-Reyes, the Court nonetheless quashed the subpoenas at issue, which sought years of communications between the City of Chicago and the Cook County State's Attorney's Office, because the plaintiffs there did not offer “any support for their conjecture that the communications between the CCSAO and the City of Chicago could contain information about the officers’ beliefs.” Id. But the context here is different: the documents plaintiff seeks are communications by agents of the actual defendants (as opposed to communications by the City or the CCSAO to each other) related to specific proceedings that involved the same investigation and conduct at issue in plaintiff's now pending case. Given this unique factual context, Defendants have not persuaded the Court that such communications are irrelevant, which is their burden to do as the objecting party.

Accordingly, plaintiff's motion to compel is granted with respect to Special Prosecutor communications. The precise scope of the Special Prosecutor communications sought by plaintiff is, however, not entirely clear from his motion. At times, plaintiff appears to seek defendants’ communications with the Special Prosecutor's Office about “Plaintiff, his case, and the Garcia murder.” Mot. at 7. At other times, plaintiff appears to expand his request to include all communications related to the dozens of other purported instances of misconduct on the part of the defendants that plaintiff identifies in paragraph 110 of his complaint. Id. at 9, 11. Even these references to paragraph 110 are unclear about whether they apply only to the requested FBI communications, or to Special Prosecutor communications as well. Id. In part because plaintiff's motion (and initial discovery request) are ambiguous, the Court orders production of all the individual defendants’ or their agents’ communications with the Special Prosecutor's Office in connection with or related to plaintiff's post-conviction and/or certificate of innocence proceedings. To the extent communications in connection with or related to these proceedings discuss or relate to the individuals identified in paragraph 110 of the complaint, they must be produced. But defendants need not produce their communications with the Special Prosecutor's Office regarding the individuals identified in paragraph 110 of the complaint to the extent those communications have no connection to and are unrelated to plaintiff's proceedings.[3]

The individual defendants are thus directed to produce their and their agents’ communications with the Special Prosecutor's Office related to or in connection with plaintiff's post-conviction proceedings and the subsequent certificate of innocence proceedings, to the extent such communications are within their possession, custody, or control.[4] Rock Fusco is directed to produce such communications with the Special Prosecutor's Office made in connection with its representation of defendant Boudreau for these same proceedings.

2. FBI Communications

Plaintiffs next move to compel defendants’ and their agents’ communications with the FBI. In support of their motion, plaintiffs point to a single 2011 Chicago Tribune article reporting that several of Burge's former detectives, including defendant Boudreau (and other detectives not named in this suit), may be under federal investigation. Mot. Ex. C. Specifically, the article reported that part of a federal inquiry into former CPD Commander Jon Burge's detectives concerned Boudreau's conduct during the 1990 investigation of the murder of Kathy Morgan and other investigations and prosecutions in which Boudreau had been involved, but did not specifically name or identify the Garcia murder at issue in this case. Id. Apart from the Tribune article, plaintiff does not identify any evidence suggesting that the individual defendants (particularly those not even named in the article) were ever under federal investigation or otherwise communicated with the FBI concerning the Garcia murder investigation. For their part, defendants attach a 2019 deposition transcript from another matter in which plaintiff's counsel questioned Boudreau about a potential FBI investigation into his conduct. Defs. Resp. to Mot. (“Resp.”), Dkt. 193, Ex. 1. Boudreau testified that when he learned he may be under FBI investigation, he called a general FBI phone number to inform the FBI that he welcomed a thorough investigation into his conduct. Id. Boudreau left his name with the person who answered the phone and was told that someone would contact him, but no one at the FBI ever did, and he was never interviewed. Id. Boudreau further testified that he did not retain counsel in connection with the FBI investigation. Id.

Plaintiff's motion is denied with respect to the requested FBI communications. Plaintiff does not provide a sufficient basis to suggest that the individual defendants ever communicated with the FBI regarding plaintiff or the Garcia murder investigation (or any other allegedly illegal conduct). At this late stage in fact discovery, plaintiff has had ample opportunity to question the individual defendants regarding any communications with the FBI, yet they have submitted no deposition testimony or interrogatory responses in support of their motion. Moreover, a single newspaper article suggesting that one of the named defendants was under investigation for his conduct in other cases does not suffice to render plaintiff's request anything more than speculative—especially given Boudreau's sworn testimony that he was never contacted by the FBI and did not retain counsel in connection with the FBI investigation. The Court declines to order defendants to produce any requested communications with the FBI because plaintiff provides no evidence supporting a plausible inference that such communications ever occurred. DeLeon-Reyes, 2020 WL 3050230, at *7 (“Without more information from Plaintiffs, their speculation amounts to an impermissible fishing expedition in this case.”).

3. Gang and Tactical Unit Files

Finally, plaintiff moves to compel the City to search the Chicago Police Department's gang and tactical unit files for any reports or documents related to the Garcia murder. Plaintiff argues, and defendants concede, that tactical officers played a role in the Garcia murder investigation. See Mot. at 12; Resp. at 6. But according to defendants, they have already provided documents from two repositories that, in their view, contain all CPD files related to the Garcia murder: the “Investigative File,” which contains documents from the Detective Division, and the “Record Division File,” which contains documents prepared by CPD personnel not assigned to the Detective Division. According to defendants, all documents pertaining to the Garcia murder would have been found in those two files and they need not search any additional document repositories. Plaintiff, however, cites a June 2020 City of Chicago Office of Inspector General report (“OIG Report”) identifying serious deficiencies in the Chicago Police Department's document production practices. See Mot. Ex. T.

Regardless of the accuracy of the document identification and production deficiencies identified by the OIG Report (a point on which this Court need not and does not take a position), the Court finds that, given the unique facts in this case, it is nonetheless reasonable to compel the City to search files maintained by CPD's tactical unit for any documents related to the Garcia murder. Defendants concede that tactical officers were involved in the Garcia murder investigation, as two tactical unit officers (who are also named defendants) received an anonymous tip that plaintiff may have information about the murder. (Resp. at 6.) While defendants speculate that the tactical unit officers became involved in the investigation “solely by chance,” id., the fact remains that tactical officers were admittedly involved in the investigation, and the nature and extent of their involvement and investigation is an appropriate topic for discovery. The question here is not whether plaintiff's request for documents is overbroad or calls for irrelevant documents—defendants do not and cannot reasonably dispute that police reports and other documents in CPD files related to the Garcia murder investigation may be highly probative. The question is whether CPD should have to search specific repositories belonging to a unit whose officers admittedly took at least some part in the Garcia murder investigation. The Court answers that question in the affirmative, in the context of this particular request and case, and in the absence of countervailing evidence (beyond the say so of counsel) that all responsive documents were necessarily included in the Investigative File or Record Division File. This warrants an order compelling CPD to specifically search the files maintained by a unit (in this case, the tactical unit) involved in the investigation at the heart of this case.[5]

The Court will not, however, order defendants to search CPD's gang unit files as plaintiff additionally requests. Plaintiff argues that “given the nature of the crime and the Defendants’ investigation, it is also reasonable to assume Defendants may have consulted with gang unit officers.” Mot. at 13. The Court declines to order an additional search on this basis. Plaintiff offers no evidence that gang unit officers were actually involved in this murder investigation. At this late stage in fact discovery, after dozens of depositions and production of (presumably) thousands of documents, it is simply too speculative for plaintiff to rely solely on conjecture in seeking additional document searches. See DeLeon-Reyes, 2020 WL 3050230, at *7.

4. The Court Declines to Deny Plaintiff's Motion on Procedural Grounds

Finally, defendants argue that the Court should deny plaintiff's motion, in its entirety, for what defendant argues are a variety of procedural failures on the part of the plaintiff. Plaintiff, according to defendants, failed to timely respond to discovery correspondence, failed to timely meet and confer with respect to the issues identified in plaintiff's motion, and failed to meet and confer in good faith when calls occurred. With respect to the latter, defendants argue that, in meeting and conferring with respect to FBI and Special Prosecutor communications, plaintiff sought to expand—rather than narrow—the documents that were sought, demanding that defendants produce FBI and Special Prosecutor communications related not only to plaintiff and the Garcia murder, but also communications with respect to the dozens of other individuals identified in paragraph 110 of the complaint. According to defendants, plaintiff then used their expanded request as a bargaining chip to get defendants to acquiesce with respect to their original, narrower request. See also Mot. Exs. R & S (email chains concerning scope of requested communications).

The Court declines, however, the parties’ invitation to wade into the minutiae of their meet and confer negotiations. Regardless of whether plaintiff's counsel engaged in meet and confer gamesmanship, it turns out to be irrelevant to the rulings in this order: their request for FBI communications is denied entirely, and the compelled production of Special Prosecutor communications is limited to only those communications in connection with or related to plaintiff's post-conviction and/or certificate of innocence proceedings. Communications that concern only those individuals identified in paragraph 110 of the complaint—and are unrelated to and not sent in connection with plaintiff's proceedings—need not be produced, in any case.

IV. CONCLUSION

For the foregoing reasons, Plaintiff's motion to compel production of documents is granted in part and denied in part.

According to plaintiff, an appointed Special Prosecutor—as opposed to the Cook County State's Attorney's Office—handled Jakes’ post-conviction proceedings for the State because defendants Boudreau and Kill were supervised by Lieutenant Jon Burge at the time of plaintiff's confession. Mot. at 3.

The parties did not make clear whether the Special Prosecutor was also involved in Plaintiff's certificate of innocence proceedings in some capacity, so in the interest of thoroughness, the Court extends its ruling to cover communications with the Special Prosecutor about either set of proceedings.

The Court also holds that even if plaintiff actually asked for all the defendants’ and their agents’ communications with the Special Prosecutor related to the individuals identified in paragraph 110 of the complaint, such a request would be overbroad and disproportionate to the needs of this case. Paragraph 110 of the complaint identifies dozens of individuals whose rights defendants allegedly violated; the Court, however, previously limited plaintiffs to ten Rule 404(b) witnesses out of proportionality concerns. Dkt. 141. The Court also previously limited plaintiff's discovery requests for homicide investigative files related to the other individuals identified in the complaint to only the files of the (then 12) individuals identified as potential Rule 404(b) trial witnesses. Dkt. 149. Consistent with the Court's prior rulings, the Court will not permit plaintiff to seek communications with the Special Prosecutor regarding all of the individuals identified in paragraph 110 to the extent those communications are unrelated to plaintiff's proceedings.

Most of the parties’ arguments with respect to Special Prosecutor communications address the propriety of seeking documents from Rock Fusco in connection with defendant Boudreau, and the parties spend little time discussing the remaining individual defendants. Nonetheless, it is plausible that the remaining individual defendants communicated with the Special Prosecutor's Office given their involvement in the Garcia murder investigation, and defendants have not met their burden to demonstrate that the requests at issue are irrelevant or unduly burdensome as to these other individual defendants either. The Court accordingly grants plaintiff's motion with respect to all the individual defendants.

Moreover, defendants have not identified or quantified any particular burden in searching CPD's tactical unit files for any documents related to the Garcia murder. Defendants’ failure to identify any burden—let alone an undue one—weighs in favor of granting plaintiff's motion, particularly given that the Defendants have the burden as the objecting party. See Fed. R. Civ. P. 26(b)(1) Advisory Committee's Note to 2015 Amendment (“A party claiming undue burden or expense ordinarily has far better information -- perhaps the only information -- with respect to that part of the determination.”).