THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

MATTHEW COLYER, et al., ) 

 ) No.: 12 C 4855 

 Plaintiffs, ) 

 ) Judge Edmund E. Chang 

 v. ) 

CITY OF CHICAGO, OFFICERS ) 

R. MOSQUEDA, Star No. 13662 and ) 

G. SIERRA, Star No. 3656, ) 

 ) JURY TRIAL DEMANDED 

 Defendants. ) 

PLAINTIFFS’ POSITION PAPER REGARDING 

DEFENDANTS’ STATUS REPORT

 Plaintiffs respectfully submit this position paper to further address the posttrial sanctions discovery in this case. As Defendants noted in footnote 1 of their 

status report, they did not contact Plaintiffs to discuss the status report until the 

Friday that it was due (after their unopposed extension), and they did not send 

Plaintiffs a draft of their proposed filing until nearly five p.m. that day.1

Nonetheless, Plaintiffs still provided Defendants’ with some initial feedback that 

day, including modifying their request in an effort to reach agreement. Defendants 

chose not to include or consider any of Plaintiffs’ comments. Therefore, Plaintiffs 

submit this position paper to address certain issues in Defendants’ status report, in 

advance of the parties’ March 26, 2015 status conference. 

 Plaintiffs are deeply concerned with Defendants’ lack of cooperation thus far. 

Although Plaintiffs recognize that additional counsel was brought in to represent 

																																																							

1 When finally contacted by Defense counsel, Plaintiffs’ counsel advised they would be 

unavailable after 4:00 p.m. Yet, Plaintiffs did not receive anything until after 4:00 p.m. 
2 

the City and the Defendants’ trial attorneys, the new attorneys still chose not to 

meaningfully confer with Plaintiffs before filing their status report. 

A. Transparency of Discovery Process 

Perhaps most concerning to Plaintiffs, the City’s attorneys adamantly 

rejected the proposal that they inform Plaintiffs who they intend to talk in 

connection with their document collection efforts, both during the telephone 

conference the parties had on March 20, and again in Defendants’ written Status 

Report. See Dkt 358 at 4. This is particularly disturbing given that the purpose of 

the discovery at issue is to get to the bottom of an extremely serious matter 

involving the failure to produce key evidence. There is no conceivable reason for 

Defendants and their attorneys to not be completely transparent throughout this 

process, including by identifying everyone from whom documents are collected and 

produced, as requested in Plaintiffs’ Status Report. See Dkt 352 at 2. 

Indeed, the identification of relevant document custodians is a common 

feature in discovery, and it is particularly appropriate here.2 See, e.g., 

Charvat v. Valente, No. 12 CV 5746, 2015 WL 993389, at *6 (N.D. Ill. Mar. 3, 2015) 

(“While Plaintiff could have had an ESI expert retained more expeditiously, and the 

parties should have communicated during the intervening time period, the Court is 

troubled by the unilateral selection of custodians by Carnival without Plaintiff's 

																																																							

2 In the alternative, if the Court is not inclined to require the Defendants to be completely 

transparent during the discovery process, Plaintiffs propose starting the discovery process 

by taking a series of 30(b)(6) depositions about the Defendants’ ability to produce relevant 

documents (including a 30(b)(6) targeted to OEMC), and would be prepared to start those 

depositions within a week of the March 26 status conference. 
3 

input.”) (emphasis added); Kleen Products LLC v. Packaging Corp. of Am., No. 10 C 

5711, 2012 WL 4498465, at *6 (N.D. Ill. Sept. 28, 2012) (discussing process where 

parties conferred on relevant document custodians, and Court then participated in 

those discussions), objections overruled, No. 10 C 5711, 2013 WL 120240 (N.D. Ill. 

Jan. 9, 2013); DeGeer v. Gillis, 755 F. Supp. 2d 909, 929 (N.D. Ill. 2010) (“The Court 

is most troubled by the fact that there was no dialogue to discuss specific search 

terms or data custodians to be searched in advance of Huron conducting its 

searches....For its part, Huron's failure to promptly disclose the list of employees or 

former employees whose emails it proposed to search and the specific search terms 

it proposed to be used for each individual violated the principles of an open, 

transparent discovery process. Huron was in the best position to take the lead in 

selecting data custodians and search terms but it should have been up-front with 

defense counsel regarding its proposed custodians and search terms and then 

receptive to defense counsel's input. Defendants should not have had to file a 

motion to compel to obtain disclosure of the custodians Huron identified and the 

search terms it developed for its production of electronically stored information in 

response to Defendants' subpoena.”) (emphasis added). 

 In addition to refusing to engage in a transparent discovery process, when 

advised that they were not to freely speak with OEMC employees, the City’s 

attorneys said there was no indication of any such order being in place. Plaintiffs 

recognize that someone will need to talk to OEMC employees to ensure that all 

relevant documents are produced, but in the spirit of the Court’s previous order 
4 

regarding discussions with OEMC employees, and given OEMC’s central role in this 

part of the case, the City’s attorneys should not be the ones having those 

conversations. Plaintiffs therefore propose the following alternatives: (1) Plaintiffs’ 

counsel will speak to relevant OEMC employees and decide with those employees 

how relevant documents should be collected; (2) Plaintiffs’ counsel, together with 

Defense counsel, will talk to OEMC employees to decide how relevant documents 

should be collected; or (3) Plaintiffs will conduct a Rule 30(b)(6) deposition of OEMC 

to determine what documents should be collected, from who, and in what format 

they should be produced. Plaintiffs would also welcome the Court’s involvement in 

this process. 

B. Timing of Production 

Although Plaintiffs do not oppose extending the time for Defendants to 

respond to discovery requests to 30 days from 14, they request that document 

productions be made on a rolling basis, starting almost immediately. 

Some documents should take no time at all to produce – obvious examples of 

such documents include the voicemail that Mr. Aumann received from Sgt. 

Lamperis telling him that the relevant recording had been placed in ERPS, as well 

as Mr. Aumann’s written request for the inventory sheet that was produced shortly 

before the end of the trial. Yet, it appeared during the parties’ March 20 conference 

call that no relevant documents have even been collected yet. Plaintiffs do not 

understand why that is the case, given that they sent their original proposal to 

Defendants on March 9, and more importantly, given that the Court entered a 
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Document Preservation Order well before that, outlining specific categories of 

documents to be preserved. At a minimum, Defendants’ trial counsel and the Law 

Department’s Civil Rights Division should have begun to immediately collect 

relevant documents in their possession when the Court entered the document 

preservation order. If Defendants and the City have not even begun to collect 

relevant documents, how can they ensure that all relevant documents have been 

preserved? 

C. Discovery from Tom Platt

Mr. Platt may have been the Law Department employee who signed the 

original request from the Law Department to OEMC for audio days after the 

shooting. That request, which Plaintiffs first received during the trial, was signed 

by “Tom.” If that “Tom” was not Tom Platt, he should be required to produce a 

declaration stating that, and the City should identify which attorney named Tom 

signed that form. If it was Mr. Platt, discovery from him is entirely appropriate, and 

it troubling that the City would oppose that discovery without even addressing Mr. 

Platt’s role with respect to that original request. 

D. Scope of Discovery, Including Discovery from Defendants: 

Plaintiffs generally agree that the discovery should be targeted to the OEMC 

calls, but not, as Defendants contend, solely targeted “to discovering the facts 

relating to the production during trial of the January 6, 2011 OEMC recording (the 

‘Recording’)”. Dkt 358 at 2. Defendants contend that Plaintiffs should not be 

permitted to re-litigate the merits of the case, but the “merits” and the OEMC 
6 

recordings can hardly be separated. Moreover, because Defendants had an active 

role in perpetrating their false story about hearing a call about a gun in an 

Oldsmobile Aurora, they must be required to participate in this discovery. 

1. Scope of Discovery

With respect to Defendants’ specific challenges regarding the scope of the 

discovery, the fact is that this recording was in the possession of the Chicago police 

within three days of the original shooting.3 The scope of discovery should include 

every avenue that may lead to any explanation of why it was not produced. 

To the extent Plaintiffs have requested internal documents that are 

potentially privileged (requests 19 and 20), those documents should, at a minimum, 

be produced to the Court for in camera inspection. 

 With respect to request number 4, Defendants misconstrue the scope of 

“support staff.” The term is intended to refer to paralegals or others who were 

involved in preparing the case, investigating the case, and assembling documents. 

As for telephone records, certainly, at a minimum, such records should be 

produced for the week before trial and the trial itself, when Mr. Marsh has 

indicated that he was making calls about the recording. 

2. Defendants’ Participation in Discovery

For years, the defense of this case on the “merits” centered on Defendants’ 

story that they pulled over Darius Pinex’s car because they heard an OEMC call 

saying that the car had a gun. That story was the underpinning of their entire 

																																																							

3 Plaintiffs provided this feedback to Defendants before the defense filed their Status 

Report. Plaintiffs’ feedback was ignored. 
7 

defense – the Defendants said that they needed to treat the stop like a life and 

death situation because they had heard there was a gun in Mr. Pinex’s car. When 

the real recording was finally produced, it became clear d that this story was false, 

as was Defendants’ testimony that the OEMC call they heard mentioned rims, or 

the color of the car. 

As was revealed during trial, all of the details that Defendants had 

mentioned–about rims, the car color, and a gun–were mentioned only on a call 

about an Aurora that they did not hear, and none were on the only call about an 

Aurora that they might have heard. Plaintiffs are entitled to know how the 

Defendants learned the details from that other call, including if any of that 

information came from their attorneys. 

There is no question that the Defendants discussed OEMC recordings with 

their counsel – in fact, Mosqueda testified at his deposition that he had listened to 

OEMC recordings to prepare for the deposition but did not hear the call he heard on 

January 6 or January 7, 2011. Plaintiffs are entitled to explore all conversations 

that Defendants had about OEMC recordings, both from the attorneys and from the 

Defendants themselves (which provides yet another reason that Defendants’ trial 

counsel should not be representing Defendants anymore). Plaintiffs should also be 

permitted to explore any other conversations Defendants had with anyone else 

about the OEMC calls. 
8 

E. Representation of Defendants

The Defendants’ status report states that their trial counsel will continue to 

represent them in these proceedings. That is untenable. First, Defendants’ trial 

counsel has a conflict with the Defendants under ABA Model Rule of Professional 

Responsibility 1.7 because their personal interests may be adverse to their clients’ 

interests. Comment 10 to ABA Rule 1.7 is directly on point, stating that “[t]he 

lawyer's own interests should not be permitted to have an adverse effect on 

representation of a client. For example, if the probity of a lawyer's own conduct in a 

transaction is in serious question, it may be difficult or impossible for the lawyer to 

give a client detached advice.” See Comment 10 to ABA Rule 1.7, available at 

http://www.americanbar.org/groups/professional_responsibility/publications/model_

rules_of_professional_conduct/rule_1_7_conflict_of_interest_current_clients/commen

t_on_rule_1_7.html (last visited on March 22, 2015).4 Here, there is no question that 

“the probity” of Defendants’ trial counsel “own counsel in a transaction is in serious 

																																																							

4 The ABA Model Rules apply, as set forth in Local Rule 83.50. Moreover, although 

Defendants’ trial counsel are responsible for examining their own potential conflicts, “[t]he 

court may raise the question if it has reason to believe that the attorney has neglected this 

responsibility, and opposing counsel may raise the issue if ‘the conflict is such as clearly to 

call in question the fair or efficient administration of justice.’” See DeLeo v. Swirsky, No. 00 

C 6917, 2003 WL 291914, at *1 (N.D. Ill. Feb. 10, 2003) (quoting Committee Comment to 

Local Rule 83.51.7); see also Marwil v. Ent & Imler CPA Grp., PC, No. 1:03-CV-00678-DFHVS, 2004 WL 2750255, at *7 (S.D. Ind. Nov. 24, 2004) “opposing counsel may properly raise 

the question of a conflict of interest under Rule 1.7 only where the conflict is such ‘as clearly 

to call in question the fair and efficient administration of justice.’” (quoting Comments to 

Rule 1.7(b), Indiana Rules of Professional Conduct, Adopted Effective January 1, 1987). 

Plaintiffs submit that Defendants’ trial counsel’s continued representation of Defendants 

calls “in question the fair or efficient administration of justice,” making it appropriate for 

Plaintiffs or the Court to raise this issue.
9 

question.” Second, even if Plaintiffs did not have standing to raise that conflict, 

because Defendants’ trial attorneys are separately represented, Plaintiffs do not 

believe it is appropriate they directly contact those attorneys to discuss this case at 

all, including to discuss matters like scheduling Defendants’ depositions, making 

their continued representation of the Defendants completely impractical. Finally, 

the attorneys’ involvement in the suppression makes their continued representation 

further untenable and impracticable. 

 Respectfully submitted, 

/s/ Scott Rauscher

 Scott Rauscher 

STEVEN A. GREENBERG 

STEVEN A. GREENBERG AND ASSOCIATES, LTD. 

53 W. JACKSON BLVD., SUITE 1260 

CHICAGO, ILLINOIS 60604 

(312) 879-9500 

Jon Loevy 

Scott Rauscher 

Loevy & Loevy 

312 N. May Street, Suite 100 

Chicago, IL 60607 

(312) 243-5900 

Attorneys for Plaintiff Gloria Pinex, Administrator of the Estate of Darius Pinex
10 

CERTIFICATE OF SERVICE

 I, Scott Rauscher, hereby certify that on March 22, 2015, I caused the 

foregoing to be filed and served on all parties by the Court’s CM/ECF electronic 

filing system. 

/s/ Scott Rauscher