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STANLEY WRICE, )
)
Plaintiff, ) No. 14 C 5934
)
v. ) Judge Elaine E. Bucklo
)
JON BURGE, et al., ) Magistrate Judge Finnegan
)
Defendants. )
ORDER
Plaintiff Stanley Wrice brought this action against the City of Chicago and various
former Chicago police officers, asserting federal and state claims relating to Wrice’s
alleged wrongful conviction and 30-year incarceration for the 1982 rape and sexual
assault of a victim known as “K.B.” (Doc. 63). Now before this Court is Non-Party Richard
M. Daley’s Motion for Protective Order Quashing Plaintiff’s Deposition Subpoena. (Doc.
297). Having considered the parties’ respective submissions (Docs. 175, 312, 315), the
Court now grants Mr. Daley’s motion for the reasons set forth below.
BACKGROUND
Plaintiffs’ original Complaint in this action asserted claims against several former
Chicago police officers: John Burge (Lieutenant), John Byrne (Sergeant), Peter Dignan
(Detective), the Estate of Leroy Martin (Superintendent), former Mayor Richard M. Daley,
and the City of Chicago, among others. (Doc. 1). By Memorandum Opinion and Order
dated September 25, 2015, Judge Bucklo dismissed all claims against former Mayor
Daley (as both Cook County State’s Attorney from 1981 to 1989 and Mayor from 1989 to
2011), but allowed certain claims against Defendants Burge, Byrne, Dignan, and Martin
Case: 1:14-cv-05934 Document #: 334 Filed: 07/26/18 Page 2 of 10 PageID #:6012
(the “Individual Defendants”) and the City to proceed. (Docs. 58-59). The current First
Amended Complaint followed (Doc. 63), in which Plaintiff alleges various constitutional
violations by the Individual Defendants (Counts I-III) and a claim pursuant to Monell v.
Dep’t of Social Services of the City of New York, 436 U.S. 658 (1978), against the City.
Brady claim that they “caused and/or continued Plaintiff’s wrongful charging, prosecution,
conviction and imprisonment by withholding from the prosecutors, judges and defense
attorneys involved in Plaintiff’s prosecution” the following information: “that the statements
made by [prosecution witness] Bobby Joe Williams implicating Plaintiff in the offenses
were false and the product of torture at the hands of Defendants Byrne and Dignan,”
and that “their abuse of Bobby Joe Williams was part of a pattern and practice of
racially motivated police torture at Area 2, which they perpetrated and supervised.”
Plaintiff’s Monell claim in turn alleges that the City maintained policies, practices,
and customs of covering up, suppressing, and otherwise obstructing justice in police
torture cases, particularly a pattern and practice of torture at Area 2 allegedly well known
to various City officials, including former Mayor Daley. (Id. at ¶¶ 103-04). By Order dated
January 9, 2017, Judge Bucklo granted the City’s motion to bifurcate and stay the Monell
claim against it, while the claims against the Individual Defendants proceeded through
discovery and trial. (Doc. 148). Plaintiff thus seeks former Mayor Daley’s deposition
solely in connection with Plaintiff’s “non-Monell” claims against the Individual Defendants,
and not his Monell claim against the City. (Doc. 175, ¶¶ 13-20, arguing relevance of
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DISCUSSION
Both sides acknowledge that, pursuant to Fed. R. Civ. P. 26(c) and upon a showing
of “good cause,” the Court may issue a protective order precluding the deposition of a
non-party, in order to protect him from “undue burden.” (Doc. 297, at 2; Doc. 312, ¶ 3).
In support of his request for a protective order precluding his deposition here, Mr. Daley
argues that “the deposition is unnecessary, plaintiff has failed to articulate a legitimate
reason for seeking the deposition, and the deposition would pose an undue hardship on
Mr. Daley.” (Doc. 297, at 2). Mr. Daley further argues that, in determining whether “good
cause” for such a protective order exists, the Seventh Circuit “follows a well-established
rule that high-level government officials should not be subjected to discovery unless such
discovery is necessary to prevent injustice and cannot be obtained through other means,”
and that a party seeking to depose such an official must therefore demonstrate a “real
need” for the deposition. (Doc. 297, at 3, citing Stagman v. Ryan, 176 F.3d 986, 994-95
(7th Cir. 1999); Chicago Reader, Inc. v. Sheahan, 192 F.R.D. 586, 587 (N.D. Ill. 2000)).1
“Plaintiff does not dispute the general rule that officials elected to important public
office should not ordinarily be required to sit for depositions regarding matters in which
they have not had direct or personal involvement.” (Doc. 312, ¶ 4). But, Plaintiff argues,
this “general rule” has less force where (as here) the deponent is a former public official,
and in any event, “must give way where the party seeking the deposition can show that
the official deposition would serve a useful purpose because it could lead to admissible
testimony in the case.” (Id. at ¶¶ 4-5). Plaintiff contends that Mr. Daley’s deposition could
1 Although Mr. Daley’s Motion for Protective Order also cites an “undisclosed medical situation”
as further reason to preclude his deposition, the Court directed the parties to address first the
threshold issue of whether his deposition is needed at this stage of the case before turning to any
medical issues which have not yet been disclosed to Plaintiff. (Doc. 312, ¶ 2; Doc. 315, at 2).
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lead to admissible evidence in this case because Mr. Daley was the Cook County State’s
Attorney six months prior to Plaintiff’s arrest, when the defendant in an unrelated case,
Andrew Wilson, “was arrested, interrogated, tortured, tried, and convicted by Defendant
Burge and other Area 2 officers.” (Doc. 175, ¶¶ 1-3). According to Plaintiff, this
information is relevant to his due process, Brady, and conspiracy claims and “may be
admissible at Plaintiff’s trial pursuant to Fed. R. Evid. 404(b),” and Mr. Daley had personal
knowledge of Andrew Wilson’s allegations of abuse at Area 2 during the relevant time
frame. (Id.). This is evident, Plaintiff says, because the May 2017 deposition of former
then State’s Attorney Daley forwarding correspondence that Brzeczek had received
earlier that month regarding Mr. Wilson’s allegations. (Id. at ¶¶ 11, 16 and Ex. E).
v. Burge, No. 03 C 3678, 2007 WL 551569, at *2 (N.D. Ill. Feb. 22, 2007), where the
plaintiff (Hobley) similarly sought Mr. Daley’s deposition regarding Andrew Wilson’s 1982
letter to then State’s Attorney Daley regarding Mr. Wilson’s allegations. But while Plaintiff
describes Hobley as “a decision that ordered then-Mayor Daley to testify in another Burge
torture case” (Doc. 312, ¶ 4), Plaintiff neglects to mention that Mr. Daley’s deposition was
sought and compelled in Hobley for information related to the plaintiff’s Monell claim
against the City – particularly regarding whether, as the State’s Attorney during the time
in question, Mr. Daley had information regarding a pattern of abuse of suspects at Area
custom or usage with the force of law, which may give rise to liability on behalf of the
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City.” 2007 WL 551569, at *2. Hobley thus provides little support for Plaintiff’s argument
here that Mr. Daley’s deposition should be compelled for Plaintiff’s non-Monell claims.2
Plaintiff’s other authorities are no more helpful. For instance, Alliance to end
Repression v. Rochford, 75 F.R.D. 428, 429 (N.D. Ill. 1976), required Mr. Daley’s
deposition because he was a named defendant and allegedly “an active participant” in
the illegal activity at issue. As noted above, Mr. Daley is not such a defendant here. And
Plaintiff’s other authorities merely acknowledge the higher standard for a public official’s
deposition that Plaintiff insists should not apply here – that such a deposition may be
compelled where the official has relevant “personal knowledge” that “cannot be obtained
from any other source.” Payne v. Dist. of. Columbia, 279 F.R.D. 1, 8 (D.D.C. 2011);
4557104, at *3 (E.D. Cal. Dec. 21, 2007) (allowing deposition of University Chancellor
2 Also citing Hobley, Plaintiff further argues that Daley’s deposition should be compelled
because it is “likely to produce or lead to admissible evidence.” (Doc. 312, ¶ 4). But in addition
to Hobley’s other distinctions, that decision explicitly relied upon the prior version of Fed. R. Civ.
P. 26(b)(1) and its allowance of discovery “reasonably calculated to lead to the discovery of
admissible evidence.” 2007 WL 551569, at *2. Counsel is reminded that the December 1, 2015
amendments to the Federal Rules of Civil Procedure removed the words “reasonably calculated
to lead to the discovery of admissible evidence” from Rule 26(b)(1). According to the Advisory
Notes, the deleted words were being “incorrectly used to describe the scope of discovery” and
the change was “designed to curtail reliance on the ‘reasonably calculated’ phrase to expand
discovery beyond the permitted scope.” Under Amended Rule 26(b)(1), the scope of discovery
is defined as follows:
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, considering 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.
Proposed Amendments to Fed. R. Civ. P., 305 F.R.D. 457, 521 (2015).
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ineffective accommodation claim, where any other source “would be a poor substitute for
[that witness’s] testimony regarding his own personal knowledge and actions”).
Plaintiff attempts two arguments that Mr. Daley has personal and singular
knowledge relevant to Plaintiff’s non-Monell claims, but both are unavailing. First, Plaintiff
argues that Mr. Daley’s alleged knowledge of Andrew Wilson’s 1982 allegations of abuse
at Area 2 “is relevant and likely to lead to admissible evidence because an investigation
[of those allegations] would have certainly put the City and prosecutors on notice of
trouble at Area 2 immediately prior to Plaintiff’s arrest.” (Doc. 312, ¶¶ 23-24). According
to Plaintiff, the results of any such investigation “are highly relevant to Plaintiff’s claims
that the City withheld information from Plaintiff’s counsel about known torture at Area 2”
and to the City’s claim “that at the time of Plaintiff’s arrest and prosecution, it had no
knowledge about a pattern of abuse at Area 2 and therefore could not have disclosed
such information.” (Id.). But as Plaintiff’s brief acknowledges, his non-Monell claims in
this action allege that the Individual Defendants – not the City – withheld this information
from Plaintiff’s defense attorneys, prosecutors, and the court. (Id. at ¶¶ 12-14, citing Doc.
63, ¶¶ 77, 79). And while Plaintiff’s Amended Complaint does allege knowledge and
concealment by former Mayor Daley and other City personnel of police abuse at Area 2,
it does so only in connection with Plaintiff’s Monell claim (which is stayed), not his claims
against the Individual Defendants. (Doc. 63, ¶ 104). Thus, none of these allegations
supports Plaintiff’s need for Mr. Daley’s deposition for his non-Monell claims.
Plaintiff’s second relevance argument takes a different tack but fares no better.
Conceding that his non-Monell claims allege that the Individual Defendants (not the City)
concealed evidence of abuse at Area 2 from Plaintiff and prosecutors, Plaintiff posits that
those Defendants “are likely to argue” in defense of that claim that “the Cook County
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State’s Attorney was aware of abuse at Area 2 at the time of Plaintiff’s arrest and
interrogation.” (Doc. 175, ¶ 19). Presumably, Plaintiff anticipates a defense that there
already known to them. See Smith v. Burge, 222 F. Supp. 3d 669, 681 (N.D. Ill. 2016)
(“In other words, Defendants argue that because the State’s Attorney’s Office was aware
of the Area 2 torture as early as 1982, the prosecutors already knew the very Brady
material at issue in Plaintiff’s claim.”). According to Plaintiff, “[w]hat transpired during the
alleged investigation initiated by Mr. Daley could bear on this question.” (Doc. 175, ¶ 19).
But while Plaintiff’s assumes that Mr. Daley is the optimal witness to address “what
transpired” during that investigation because he “handled” it (id. at ¶ 12), the record
Devine (Daley’s First Assistant at the State’s Attorney’s Office), on which Plaintiff purports
to rely heavily, the issue of Mr. Wilson’s allegations of abuse at Area 2 “was referred to
misconduct.” (Doc. 175-1, at 39-44). Mr. Devine further explained that Special
Prosecutions was a division in the Cook County State’s Attorney’s Office, and that
Wilson’s abuse allegations were referred by former Assistant Cook County State’s
Attorney William Kunkle to (now former Judge) Frank DeBoni within that division. (Id.).
Plaintiff has thus failed to demonstrate that Mr. Daley knows what took place in the
reportedly conducted by others. Nor does the record suggest that Mr. Daley has any
other information regarding Mr. Wilson’s allegations or any investigation of them. To the
contrary, as even Plaintiff acknowledges, Mr. Daley’s June 2006 Sworn Statement to
2 explained that he had no specific recollection of the February 1982 letter advising him
of Wilson’s allegations or any investigation concerning them; Mr. Daley merely recalled
the process that would have been followed to refer that matter to the Special Prosecutions
Division of the Cook County State’s Attorney’s Office. (Doc. 312, ¶ 20, citing Doc. 312-5,
at 18-25, 34-38). And as Mr. Daley explains, his January 2006 statements to the Office
of the Special Prosecutor concerning Wilson’s allegations similarly explained that he had
no specific recollection of how that matter was handled and recalled simply the protocol
for referring it to the Special Prosecutions Division, and that “he probably was advised,
as time passed, that the Special Prosecutions Unit had contacted Wilson’s attorney and
had been thwarted in efforts to determine the actual basis” for his allegations. (Doc. 297,
¶ 12, citing Doc. 297-5). This was consistent with the deposition of Mr. Devine, which
likewise confirmed that Wilson’s defense attorneys refused to cooperate with any
investigation into his abuse allegations while his criminal matter was pending, leading the
Special Prosecutions Division to conclude that nothing could be done to investigate those
Thus, even assuming the results of any investigation into Wilson’s allegations of
abuse at Area 2 “could bear” on a potential Brady defense by the Individual Defendants
that such allegations were well known in the Cook County State’s Attorney’s Office (or
bear on any other issue in the case), it appears that Plaintiff has already discovered that
information. In any event, based on the record before it, this Court is not persuaded that
Mr. Daley is an appropriate witness to testify to what transpired in the investigation of the
Special Prosecutions Division. Moreover, to the extent Plaintiff seeks to discover whether
the allegations of abuse at Area 2 were, in fact, well known within the Cook County State’s
Attorney’s Office at the time of Plaintiff’s prosecution, he has already questioned several
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witnesses on that topic. While Mr. Devine explained that most people in the Office
became aware of the Wilson case “at some point,” (Doc. 175-1, at 60), even Plaintiff
acknowledges that two former Cook County State’s Attorneys (Ms. Bertina Lampkin and
Mr. Terrence Gillespie) each testified that they knew of no such allegations at the time of
Plaintiff’s prosecution. (Doc. 175, ¶ 19). Mr. Brzeczek’s deposition testimony (on which
Plaintiff also relies heavily) similarly indicates that he knew of no allegations of abuse at
Area 2 when he left his position as Chicago Police Superintendent in April 1983, other
than those concerning Mr. Wilson in February 1982. (Doc. 312-3, at 90-91). And again,
while Plaintiff may dispute Mr. Devine’s testimony or the testimony of the other three
witnesses, he has provided this Court with nothing to suggest that Mr. Daley is in a better
position to address whether the allegations of abuse at Area 2 were more widely known
Indeed, “Plaintiff agrees that Mr. Daley’s status as the Cook County State’s
Attorney in and of itself does not make his testimony relevant to Plaintiff’s claims,” and
insists that he “is not seeking to depose Mr. Daley merely because of his status as the
Cook County State’s Attorney nor does he seek to depose Daley merely to explore what
knowledge he had.” (Doc. 312, ¶ 11). Rather, Plaintiff claims that he “seeks to depose
Mr. Daley as a fact witness who is known to have direct and personal knowledge about
facts relevant to this case.” (Id). But as discussed above, the record that Plaintiff has
provided this Court falls far short of establishing that Mr. Daley has any relevant direct
considering Mr. Daley’s additional grounds for a protective order (see supra note 1), the
Court concludes that Plaintiff has failed to substantiate his need for Mr. Daley’s deposition
and Mr. Daley has shown good cause for a protective order precluding it.
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CONCLUSION
For the reasons stated above, Non-Party Richard M. Daley’s Motion for Protective
ENTER:
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