IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

MATTHEW COLYER, et al.,

Plaintiffs,

v.

CITY OF CHICAGO, et al.,

Defendants.

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Case No. 12 C 4855

Judge Edmond E. Chang

DEFENDANTS’ AND RESPONDENTS’ STATUS REPORT

Defendants and Respondents address their areas of agreement and disagreement with

Plaintiffs’ Status Report (Dkt No. 352) as follows:1

Discovery Stages

Defendants and Respondents agree that discovery should proceed in stages with written

discovery conducted first. Responding to the requests for production and gathering information

for the interrogatories will require a comprehensive search and review of all available documents

and numerous email accounts. The parties have agreed that Defendants and Respondents may

have thirty days to respond to the document requests and interrogatories.

Once written discovery is complete, Defendants and Respondents agree to confer with

Plaintiffs and attempt to agree on whom should be deposed. If the parties cannot agree, the

parties should submit a joint report to the Court for a resolution of their differences.

1 To explain why a joint document has not been filed, Plaintiffs’ counsel has asked Defendants’ counsel to include

the following: Defendant City’s counsel first contacted Plaintiffs’ counsel, along with Respondents’ counsel, at 1:30

pm today, March 20, to discuss the status report. Defendants’ and Respondents’ counsel said they would send

Plaintiffs’ counsel their draft status report this afternoon, but did not send it until 4:38 pm. Because Plaintiffs had

insufficient time to incorporate this into a joint document, Defendants and Respondents file this separately.
Scope of Discovery

The scope of this proceeding should be limited to discovering facts relating to the

production during trial of the January 6, 2011 OEMC recording (the “Recording”) only to those

parties and other persons reasonably expected to have knowledge and information of the

existence and disposition of the Recording prior to its production, namely who knew it existed

and when, and why was it not produced prior to trial.

Plaintiffs should not be permitted to re-litigate the merits of this case or otherwise

unnecessarily expand the discovery beyond the Scope of this Discovery.

Written Discovery

Defendants and Respondents agree with the majority of Plaintiffs’ discovery requests, but

address the following limited objections.

(a) Defendants and Respondents disagree with Plaintiffs’ request to direct written

discovery to Tom Platt, Deputy Corporation Counsel and Supervisor of the City of Chicago Law

Department’s Federal Civil Rights Division. Mr. Platt supervised the attorneys representing the

Defendants; however he was neither active nor directly involved in discovery, including in

connection with Defendants’ answers and responses to Plaintiffs’ written discovery.

(b) Defendants also disagree with Plaintiffs’ request to direct written discovery to

Defendants Mosqueda and Sierra. Although Mosqueda and Sierra are parties to this lawsuit, the

events relating to the search, disposition and production of the Recording are plainly outside the

scope of their knowledge or information.

(c) Defendants and Respondents recognize and agree that objections to Plaintiffs’

discovery requests should be used sparingly; however a number of Plaintiffs’ proposed

Production Requests suggest that objections will be necessary to restrain overly broad and
burdensome requests for documents that are unrelated to the purpose of this proceeding or not

reasonably calculated to the discovery of other information relevant or useful to a disposition of

these proceedings. To illustrate:

Plaintiffs’ Proposed Production Request No. 4. Plaintiffs’ request for production of all

cellular, home and work telephone records for Jordan Marsh, Tom Aumann, Dana Pesha, Jill

Maderak, Laura Dunaj, Sgt. Lamperis, and Detective Gallagher, and all support staff that worked

on the case. This is an extremely overbroad, burdensome and vague request i.e. “all support staff

that worked on the case,” and highly unlikely to reveal or lead to the discovery of any useful

information.

Proposed Production Request No. 5. Plaintiffs’ request for production of “[a]ll

documents showing the dates on which Marsh, Aumann, and Pesha met with witnesses or

potential witnesses to prepare for trial, including identifying with whom they met on which

date.” The overly broad scope of this request and the undue burden or responding to it is selfevident as the number of witnesses and potential witnesses that Marsh, Aumann, and Pesha met

with over the years of this litigation likely exceeds 100. More importantly, however no probative

or relevant information will be derived from these documents.

Proposed Production Request Nos. 19 and 20. Plaintiffs’ request for production of

“Front Office Memos" or trial memos prepared by Defendants’ trial attorneys and “notes taken

during the trial conference held between the trial attorney and any other corporation counsel.”

These memos and notes reflect attorney work product and are protected from disclosure under

Fed.R.Civ.P. 26(b)(3)(A), unless Plaintiffs show a “substantial need for the materials to prepare

[their] case,” which in this instance means in a prospective motion directed to a discovery

violation involving the Recording, and not in connection with Plaintiffs’ anticipated motions
under Rule 59. Fed.R.Civ.P. 26(b)(3)(A)(ii). In the context of these proceedings, Plaintiffs’

cannot make this showing. Even if these memos and notes were deemed admissible because this

showing has been made, Fed.R.Civ.P. 26(b)(3)(B) protects any against disclosure of “the mental

impressions, conclusions, opinions, or legal theories of a party’s attorney or other representative

concerning the litigation.” In light of the foregoing, Defendants and Respondents should not be

barred from objecting to this and similar discovery that seeks disclosure of attorney work product

or other privileged information.

Verifications of Answers to Discovery

Responses to interrogatories should be verified according to Rules 33 and 34, and should

not require the additional measures requested by Plaintiffs.

Detailed Description of Discovery

Defendants and Respondents and their counsel should not have to provide a written

description of how they conduct discovery. At a minimum, this request is premature.

Privileged Materials

It is premature to consider whether any privileges apply because the parties and their

counsel have not reviewed the entire scope of documents that fall under Plaintiffs’ requests.

Defendants and Respondents disagree that there has been a blanket waiver of any assertion of

privilege or that the crime fraud exception applies. Defendants and Respondents will further

confer with Plaintiffs’ counsel regarding privilege issues if any dispute arises.

Selection of Counsel

As Plaintiffs suggest, Defendant City has retained outside counsel and the Respondents

(Defendants’ counsel of record) have retained separate outside counsel. At this time, trial

counsel will continue to represent the interests of Defendants Mosqueda and Sierra.
Costs and Fees

Defendants and Respondents disagree that they should pay the costs and fees associated

with the sanctions discovery. Plaintiffs may raise this issue after the matter has been resolved,

but it is premature to make that determination now.

Final Joint Status Report

Defendants and Respondents agree that a final joint status report should be filed with the

Court upon the completion of oral discovery, to advise the Court of the progress and any

outstanding issues that cannot be agreed upon.

Respectfully submitted,

By: s/ Molly E. Thompson

One of the Attorneys for the City of Chicago

Terrence M. Burns

Paul A. Michalik

Daniel M. Noland

Molly E. Thompson

Dykema Gossett PLLC

10 South Wacker Drive, Suite 2300

Chicago, IL 60606

(312) 876-1700 (telephone)

(312) 876-1155 (facsimile)

Respectfully submitted,

By: s/ Thomas M. Leinenweber

One of the Attorneys for Jordan Marsh,

Thomas Aumann and Dana M. Pesha

Thomas M. Leinenweber

Leinenweber Baroni & Daffada LLC

203 North LaSalle Street

Suite 1620

Chicago, Illinois 60601

(312) 876-1700 (telephone)

(312) 876-1155 (facsimile)
CERTIFICATE OF SERVICE

I hereby certify that on March 20, 2015, I electronically filed the foregoing Defendants’

and Respondents’ Status Report with the Clerk of the Court using the ECF system, which sent

electronic notification of the filing on the same day to counsel of record.