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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

AARON PATTERSON, )

)

Plaintiff, ) Case No. 03 C 4433

v. )

) Judge Joan B. Gottschall

JON BURGE, et al., )

) Magistrate Judge Geraldine Soat Brown

Defendants. )

MEMORANDUM OPINION AND ORDER

Geraldine Soat Brown, United States Magistrate Judge

Before the court is Certain Defendants’ Motion for Sanctions and Second Motion to Compel.

(Def.’s Mot. Sanctions.) [Dkt 589.] Defendants City of Chicago, Terry Hillard, and Thomas

Needham also joined in the motion. [Dkt 591.] For the reasons set out below, the motion is granted.

BACKGROUND

This is the second motion filed by certain individual defendants (collectively here,

“Defendants”) regarding the deposition of plaintiff Aaron Patterson (“Patterson”). Defendants

previously filed a motion to compel Patterson to answer questions that he had refused to answer at

his deposition, and to compel production of certain documents allegedly provided to Patterson prior

to his deposition. (Defs.’ Mot. Compel.) [Dkt 421.] Except for the issue regarding the documents,

that motion was rendered moot by the entry of a Stipulated Protective Order governing the use and

disclosure of any deposition testimony that Patterson in good faith believes creates a concern for his

personal safety if publically disclosed. (Order, June 14, 2006; Stip. Protective Order.) [Dkt 437,
 Because Patterson is currently incarcerated following his conviction in 2005 on 1

unrelated federal charges, arrangements had to be made for taking his deposition. Defendants’

counsel and Patterson’s previous counsel met with the court and a representative of the security

staff of the Metropolitan Correctional Center and worked out agreed procedures. For practical

and security reasons, individual sessions of his deposition had to be limited to a few hours,

resulting in counsel returning for a number of days of testimony. As used herein, the “first

session” of Patterson’s deposition refers to the deposition testimony taken between November

2005 and March 2006, the transcript of which is attached as Exhibit B to Defendants’ Motion to

Compel and contains pages 1-768. [Dkt 421.] The “second session” refers to the deposition

testimony taken in August 2006, the transcript of which is attached as Exhibit D to the present

motion and contains pages 916-1055. All references to Patterson’s deposition testimony,

whether from the first or second session, will be cited herein as “Dep. at __.”

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438.] Following that order, Patterson’s deposition was resumed, but apparently there were still

questions that he declined to answer, and the present motion ensued.1

The present motion initially raised again the issue of the documents allegedly provided by

Patterson’s counsel. (Defs.’ Mot. Sanctions at 4.) That issue was resolved when Patterson’s present

counsel agreed to produce a CD containing documents that Patterson had mentioned at his

deposition. (See Order, March 16, 2007.) [Dkt 663.] Accordingly, that part of the motion is moot.

The remaining disputes relate to questions that Patterson refused to answer at his continued

deposition.

The scope of discovery extends to “any matter, not privileged, that is relevant to the claim

or defense of any party . . . .” Fed. R. Civ. P. 26(b)(1). Discovery is not limited to evidence

admissible at trial, but extends to “discovery [that] appears reasonably calculated to lead to

admissible evidence.” Id. Patterson’s Third Amended Complaint alleges that Defendants

“knowingly and maliciously tortured, prosecuted, imprisoned and sentenced an innocent

Aaron Patterson to death.” (Third Am. Compl. at 6.) [Dkt 693.] Patterson alleges that his injuries

include “pain, suffering, fear, mental anguish, detention, imprisonment, humiliation, and loss of
 Professor Protess teaches at the Medill School of Journalism at Northwestern 2

University, where he has led teams of students in investigating claims of wrongful convictions,

resulting in several exonerations. See Alex Doniach, Protess honored with Puffin/Nation Award,

http://www.medill.northwestern.edu/medill/inside/news/protess_honored_with_puffinnation_aw

ard.html (Dec. 16, 2003) (last visited May 4, 2007).

 Professor Doppelt also teaches at the Medill School of Journalism. See Jeannie 3

Vanasco, Medill Professor’s Supreme Court Site is One of a Kind

http://www.medill.northwestern.edu/medill/inside/news/medill_professors_supreme_court_site_i

s_one_of_a_kind.html (Dec. 17, 2004) (last visited May 4, 2007).

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freedom and companionship.” (Id. at 25.)

ANALYSIS

I. Questions regarding Patterson’s investigations and conversation with the Office of

Police Standards.

Patterson testified that one of the jobs he had following his release from prison after being

pardoned was working for Professor David Protess “investigat[ing] cases,” including this case.

(Dep. at 42-43.) Patterson testified that he was paid for that work. (Id.) He refused to testify about 2

what he did to investigate this case. (Id. at 45-46.) His counsel asserted an objection of work

product. (Id.) None of the lawyers at Northwestern University represent Patterson. (Id. at 970.)

Patterson has also worked for Professor Jack Doppelt, who is a journalist, not an attorney. (Id. at

968.) Patterson also refused to testify about his investigations for Professor Doppelt, and his 3

counsel asserted “issues of confidentiality” and “journalistic ethics issues.” (Id. at 970.)

Defendants seek an order compelling Patterson to testify to facts that he learned during his

investigations regarding this case. (Defs.’ Mot. Sanctions at 5-6.) In response, Patterson argues the

general principle that an attorney’s notes are protected work product, as are notes taken by an agent

working on the attorney’s behalf. (Pl.’s Resp. at 7.) However, that argument misses the mark;
 Presumably, all documents, whether prepared by an attorney or anyone else, as to which 4

protection is claimed have been identified on a privilege log, as required by Rule 26(b)(5)(A).

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Defendants’ motion does not address any documents as to which work product protection has been

asserted. Defendants seek to compel further deposition testimony, and the information sought is

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not protected attorney work product. The work product privilege protects “documents and tangible

things otherwise discoverable . . . prepared in anticipation of litigation or for trial by or for another

party or by or for that other party’s representative . . . .” Fed. R. Civ. P. 26(b)(3). Defendants’

motion seeks to compel Patterson to testify about factual information that he has about this case,

which is not protected work product.

[T]he work-product protection cannot be asserted to prevent disclosure of the

underlying facts, which are discoverable in any adversary proceeding. A document

may be protected from compelled disclosure. An attorney may not be forced to take

the stand and testify as to that attorney’s mental impressions. That does not,

however, mean that the underlying facts thereby are absolutely protected from

discovery, either by way of interrogatories or by way of depositions of other

knowledgeable witnesses, discovered through interrogatories.

Edna Selan Epstein, The Attorney-Client Privilege and the Work Product Doctrine 488 (American

Bar Association 4th ed. 2001). Additionally, the fact that Patterson obtained the information in the

course of his paid investigations for the professors, who are not representing him in this case,

undermines his claim that the material was prepared “in anticipation of litigation or for trial.”

Patterson’s response to this motion does not present any argument or authority regarding his

assertion of any other claimed privilege, such as “journalistic ethics,” and accordingly, any other

argument is waived.

Defendants’ motion in this respect is granted: Patterson must testify as to any factual

information of which he is aware regarding this case, whether or not that information was obtained
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in the course of his investigations for the professors.

Likewise, Patterson refused to testify fully regarding a meeting he had in May 2004 with

Lori Lightfoot, then the director of the Office of Police Standards. (Dep. at 720-25.) He did not

deny that the meeting was relevant “at all” to the lawsuit (id. at 722), but refused to answer questions

about it (id. at 724-25). Patterson did not give any reason for hisrefusal to answer, and his response

to Defendants’ motion does not present any argument justifying that refusal. Patterson must answer

questions about that meeting.

II. Questions about gang involvement.

Patterson testified that he was a member of the Apache Rangers gang (Dep. at 68, 71), but

he refused to answer other questions about his gang participation, for example, whether he was a

gang member in high school or college. (Id. at 554, 556; see also id. at 75, 79.) His answer to the

question of whether he is currently a gang member was cryptic at best: “Not that I recall if I

remember or not. I am a member of a movement.” (Id. at 931.) But then he refused to answer

questions about the “movement.” (Id.) After the first session of Patterson’s deposition, the

Stipulated Protective Order was entered, allowing Patterson to designate as “Confidential” and

limiting disclosure of any portions of his deposition that he believes in good faith would create a

concern for his personal safety. (Stip. Protective Order ¶ 2.) The purpose ofthat order was to permit

Patterson to respond to all of Defendants’ counsel’s questions regarding his participation in gangs

without fear of jeopardizing his safety. Thus, any objections based on “safety concerns” that

Patterson has raised are overruled in light of the entry of the Stipulated Protective Order.

Patterson’s response to the present motion is that the questions regarding his gang affiliation
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and gang activities are irrelevant and intended to annoy him. (Pl.’s Resp. at 8.) [Dkt 633.]

However, Defendants argue that the Sanchez murder for which Patterson was convicted and

subsequently pardoned was gang-related and involved gang member witnesses; thus, Patterson’s

gang affiliation and the possible gang affiliations of potential witnesses, as well as the gang-related

incidents that occurred near in time to the Sanchez murders are relevant. (Defs.’ Mot. Sanctions at

8, 11; Defs.’ Reply at 6 [dkt 650].) That the questions relate to events as long as 20 years ago is not

surprising because the murder for which Patterson was convicted took place in 1986. (Third Am.

Compl. ¶ 16.) 

Importantly, a disagreement about the relevance of a question is not a basis for refusing to

answer. As the Seventh Circuit recently observed, a party may not simply refuse to answer

questions. Redwood v. Dobson, 476 F.3d 462, 467-68, 469 (7th Cir. 2007). Deposition questions

are to be answered notwithstanding an objection, unless the objection is to preserve a privilege. Fed.

R. Civ. P. 30(c). A party who believes that a deposition is being conducted in bad faith, or in such

manner as to unreasonably annoy, embarrass or oppress the deponent, may halt the deposition and

apply for a protective order under Rule 30(d)(4). Redwood, 476 F.3d at 367-68. But Patterson did

not bring any motion under that Rule; he simply refused to answer. Such conduct may be grounds

for sanctions. See id. at 470 (sanctioning attorney for advising his client not to answer questions

which he believed were intended to harass, rather than applying for a protective order under Rule

30(d)(4)). Accordingly, Patterson must answer Defendants’ counsel’s questions regarding

Patterson’s gang affiliation and his knowledge of gang affiliations of potential witnesses, as well as

the gang-related incidents that occurred near in time to the Sanchez murders.
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III. Questions about potential witnesses.

In addition, Defendants request that Patterson be compelled to answer all questions relating

to the whereabouts of, hisrelationship to, and recent conversations with Sharon Haynes, the witness

who provided an alibi for Patterson at his murder trial. (Defs.’ Mot. Sanctions at 8-9.) Ms. Haynes

has been listed as a potential witness for Patterson in this trial, and Defendants are simultaneously

moving to have her held in contempt of court for failure to appear in response to a subpoena for her

deposition. [Dkt 639.] Patterson’sresponse to the motion states that he answered all of Defendants’

counsel’s deposition questions regarding Ms. Haynes, and that when he answered “I don’t

remember” or “I don’t recall,” it was “probably” due to the fact that some of the conversations

occurred 20 years ago. (Pl.’s Resp. at 10.)

A review of the transcript discloses that Patterson’s answers to questions about Ms. Haynes

—even questions about his recent contacts and conversations with her—were incomplete and

evasive. He testified that he saw her “off and on” after his pardon and that he is “sure” he talked to

her. (Dep. at 946-47.) But, when asked what he spoke to Ms. Haynes about after his pardon,

Patterson answered “[p]ersonal matters,” and then stated that he “wouldn’t discuss it . . . .” (Id. at

947.) Defendants’ counsel also asked Patterson where Ms. Haynes lived, to which Patterson

answered, “You’ve got investigators. Go to 86th and Paxton and I’m sure you will locate her.” (Id.)

Defendants’ counsel asked Patterson when he saw Ms. Haynes, including whether he saw her more

than once or twice, and where he saw her. (Id. at 945-47.) Patterson responded that he did not recall

how many times he saw Ms. Haynes, and was vague about where he saw her (e.g., “on the block,”

“in traffic,” “just passing through”). (Id. at 946-48.) Patterson must answer Defendants’ counsel’s

questions regarding his knowledge as to Ms. Haynes’s whereabouts. To the extent Patterson can
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provide more specific information about when and where he saw Ms. Haynes and the subjects they

discussed, he must provide such information in response to Defendants’ counsel’s questions.

In addition, Defendants complain that Patterson refused to disclose the identity of the

boyfriend of prosecution witness Marva Hall. (Defs.’ Mot. Sanctions at 9-10.) At his deposition,

Patterson stated that he became friends with Ms. Hall because he “knew her boyfriend at the time.”

(Dep. at 103.) Patterson then testified that he would prefer not to discuss the boyfriend’s name for

safety reasons. (Id.) However, as discussed above, Patterson’s objections based on “safety

concerns” are overruled based on the entry of the Stipulated Protective Order. At the second session

of his deposition, Patterson again refused to identify Ms. Hall’s boyfriend, stating that Defendants’

counsel should ask Ms. Hall who her boyfriend was “to be more accurate.” (Id. at 938.) Patterson

must state to whom he was referring when he stated that he knew Ms. Hall’s boyfriend and answer

reasonable follow-up questions regarding that person. Also during his deposition, Patterson stated

that the last time he saw Ms. Hall was “the early part of April, sometime like – somebody[’s]

birthday . . . .” (Id. at 106.) He later testified that he was not sure whose birthday it was but he

“assum[ed] it was Rederick Manning’s birthday.” (Id. at 938.) It appears, from that answer, that

Patterson gave Defendants’ counsel the most accurate answer he could. If Patterson can provide a

more definite answer to this question, though, he must do so.

IV. Questions about damages.

Additionally, Defendants seek to compel Patterson to answer certain questions regarding his

background, arguing that such information is relevant to the issue of damages in light of Patterson’s

claim that he suffered loss of income and loss of earning capacity due to the alleged misconduct of
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Defendants. (Defs.’ Mot. Sanctions at 10-11.) Patterson refused to answer certain questions,

including questions about income he received after his pardon, and the location where he leased

property. (Dep. at 1025-26.) Patterson now argues that none of the information sought is relevant

to the claims and factual allegations at issue. (Pl.’s Resp. at 12.) However, such questions may elicit

information relevant to Patterson’s claim that he suffered a loss of income and earning capacity.

Thus, Patterson must answer the questions outlined in Defendants’ motion on this issue. See Fed.

R. Civ. P. 26(b)(1) (permitting the discovery of any matter relevant to the subject matter of the

pending action, so long as the sought after information is not privileged, and even if inadmissible

at trial, if the information sought appearsreasonablycalculated to lead to the discovery of admissible

evidence).

V. Questions about conspiracy issues.

Count VII of Patterson’s Third Amended Complaint alleges that Defendants and others

including Mayor Daley, former Police Superintendent Hillard, States Attorney Devine, “along with

other unsued co-conspirators” conspired to falsely imprison, maliciously prosecute and intentionally

inflict severe emotional distress on Patterson. (Third Am. Comp. ¶ 98.) Defendants request that

Patterson be compelled to answer questions relating to his conspiracy claim, questions which

Patterson refused to answer at his deposition. (Defs.’ Mot. Sanctions at 11-13.) Patterson’s answers

to some questions appear to suggest that he believes that the alleged conspiracy extends to his 2005

conviction on federal charges. (See, e.g., Dep. at 1001-02.) However, in response to a question

regarding whether he believed that Defendants and the Mayor had a motive to “set [him] up,”

Patterson responded that he was “not going to discuss those details until I put them out there
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publicly.” (Id. at 758.) He then stated, in response to a question regarding what details he had to

support his claim, that he was not going to turn over any information at that time. (Id.) Similarly,

Patterson stated that he would not disclose any facts he had to support his assumption that Mara

Georges played a role in the investigation leading to the federal charges that resulted in his

incarceration. (Id. at 1004-05.) Patterson’s response to Defendants’ motion does not present any

argument justifying his refusal to answer those questions. Indeed, Patterson does not even address

Defendants’ argument in his response. Unless there is a valid objection on the basis of privilege (and

none was raised), Defendants’ questions relating to Patterson’s claim that there was a conspiracy

against him (see Defs.’ Mot. Sanctions at 11-13) are relevant and must be answered. If Patterson has

information that he believes supports his claim of conspiracy, he must testify about it to the best of

his knowledge.

CONCLUSION

For the foregoing reasons, Certain Defendants’ Motion for Sanctions and Second Motion to

Compel [dkt 589] is granted as set out above. The court declines to order that written questions and

answers be substituted for oral testimony, as suggested in Defendants’ Reply (at 7). It is the

Defendants’ option to serve (or seek leave to serve, if necessary) additional interrogatories, if they

believe that written questions and answers will be more efficient. Patterson is warned that if he fails

to comply with this Order, i.e., if he fails to respond fully and completely to Defendants’ counsel’s

questions at his next deposition session, he may be sanctioned pursuant to Rule 37.

IT IS SO ORDERED.

___________________________

GERALDINE SOAT BROWN

United States Magistrate Judge

DATED: May 4, 2007