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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

JAMES FLETCHER JR.,

Plaintiff,

vs.

JEROME BOGUCKI, ANTHONY

NORADIN, RAYMOND SCHALK,

ANTHONY WOJCIK, UNKNOWN CITY

OF CHICAGO POLICE OFFICERS,

and the CITY OF CHICAGO,

Defendants.

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No. 20 CV 4768

Chicago, Illinois

February 23, 2022

10:05 a.m.

TRANSCRIPT OF PROCEEDINGS - TELEPHONIC STATUS HEARING

BEFORE THE HONORABLE ANDREA R. WOOD

APPEARANCES:

For the Plaintiff: LOEVY & LOEVY

BY: MS. MARIAH E. GARCIA

311 North Aberdeen Street, 3rd Floor

Chicago, Illinois 60607

(312) 243-5900

Mariah@loevy.com

For the Defendant

Officers: HALE LAW LLC

BY: MR. BRIAN J. STEFANICH

53 West Jackson Boulevard, Suite 330

Chicago, Illinois 60604

(312) 341-9646

Bstefanich@halemonico.com

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APPEARANCES: (Continued)

For the Defendant

City of Chicago: REITER BURNS LLP

BY: MR. PAUL A. MICHALIK

311 South Wacker Drive, Suite 5200

Chicago, Illinois 60606

(312) 982-0090

Pmichalik@reiterburns.com

Court Reporter: Brenda S. Tannehill, CSR, RMR, CRR

Official Court Reporter

219 South Dearborn Street, Suite 1928

Chicago, Illinois 60604

(312) 554-8931

brenda_tannehill@ilnd.uscourts.gov

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(Proceedings held remotely, via telephone:)

THE COURT: Good morning. This is Judge Wood. I

believe we're ready to call the next case, so I will ask my

courtroom deputy to do that, and then we will get appearances

from Counsel starting with the plaintiff first.

David.

THE CLERK: 20 C 4768, Fletcher, Junior versus

Bogucki, et al., for status.

THE COURT: Plaintiff's counsel?

MS. GARCIA: Mariah Garcia for the plaintiff.

MR. STEFANICH: Brian Stefanich for the defendant

officers.

MR. MICHALIK: Paul Michalik for defendant City of

Chicago.

THE COURT: Thank you.

Okay. So I have now fully briefed the motion to

compel that was filed, but before we talk a little bit about

that, let me see what other progress has been made with

respect to discovery over the past few weeks.

Where do things stand, Ms. Garcia?

MS. GARCIA: Sure, Your Honor.

We are still waiting -- and I believe the individual

defendant officers -- on a few subpoenas to various government

agencies.

We've also started to send out subpoenas for

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third-party witness depositions which counsel has been in

conversations to set down for an actual time. It's just been

a little difficult to locate some of those witnesses, but now

that we have, we're moving towards starting depositions.

THE COURT: Okay. And how many depositions do you

expect to take in the matter?

MS. GARCIA: We definitely want to take all the

depositions of the parties. We also, on our end, have three

nonlaw enforcement depositions, three to four eyewitnesses.

So that would be at least seven to eight, not counting some of

the shorter depositions we think we may need to take for some

of the nondefendant but still involved officer deps.

We've also discussed between counsel potentially

taking a couple of depositions a day for some of the non --

the less involved witnesses to try and cut down on time.

THE COURT: Okay. What about the individual

defendants? What are your plans for deposition discovery?

MR. STEFANICH: Sure, Judge. So we'll have the

plaintiff, we'll do the four eyewitnesses, and then we'll have

the damages depositions, which I think there's maybe three to

four of those witnesses as well. And I think that's about it

right now.

We'll have some of the state's attorney witnesses, so

I know we'll want one of the original trial prosecutors. And

then we will want probably two of the prosecutors that were

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involved in the review of Mr. Fletcher's case, the

postconviction review and the Conviction Integrity Unit

review. And then there's one witness, Mr. Fletcher's attorney

during the lineup, that we will depose as well.

THE COURT: I'm sorry. What is the name of the

attorney during the lineup?

MR. STEFANICH: The last name is Gunyon, I believe

G-U-N-Y-O-N.

THE COURT: So not the counsel whose recorded calls

are the subject of the motion to compel?

MR. STEFANICH: Correct.

THE COURT: Okay. And I take it that you are not

seeking any deposition testimony regarding advice given by

Attorney Gunyon to the plaintiff? In other words, are there

going to be privilege issues, or you just want to know what

happened during the lineup?

MR. STEFANICH: Yeah, I don't expect any privilege

issues to arise. She was just the attorney for the lineup,

and she testified both at the motion to suppress the

identification and Mr. Fletcher's criminal trial, so I

wouldn't expect really to get into any privileged matters.

THE COURT: Okay. And as I was reviewing the motion

to compel -- I'm sorry -- the motion, I guess, to enforce the

subpoena which is basically a motion to compel, I noticed that

obviously, there's a group of folks for whom you're seeking

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the calls between them and Mr. Fletcher. Which of those

people, if any, are you planning to depose?

MR. STEFANICH: Sure.

So Debra Sanders would be one for sure that we would

depose. She was a witness at the plaintiff's criminal trial.

She testified to an alibi that she and Mr. Fletcher were out

of state at the time of the murder as well as some other

characteristics of Mr. Fletcher that didn't match the

eyewitness descriptions. So she would be one that we would

depose.

The two damages witnesses, Delan Gardner and

Natasha Reeves, would be individuals that we would depose.

Ms. Blagg who was Mr. Fletcher's postconviction

attorney and his current attorney in this case, I think we

would wait on making that decision until we heard some of the

calls. Obviously, if there's nothing particularly relevant

about the affidavits or about the case, we wouldn't seek her

deposition because we know that would raise some issues with

representation in this case and things like that. So that's

one that we would probably wait on.

And then Yvette McGee is the other individual. I

know she had 13 phone calls with Mr. Fletcher. It seems like

she had some role in securing Mr. Cooper's affidavit.

Mr. Cooper was one of the victims in this case. So I think

that one, again, we would probably want to either wait until

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we received the phone calls or depose Mr. Cooper before we

made the decision on that deposition.

I'm sorry. One other one was Mr. Fletcher's father.

So he also testified at Mr. Fletcher's criminal trial, and I

don't believe he was listed on plaintiff's Rule 26

disclosures. So that would be one that we would probably meet

and confer about. I don't know if he's still around, but if

he is still around and available to testify, he's somebody

that we would want to depose because he testified to the same

topics as Debra Sanders, the alibi and Mr. Fletcher's

appearance in 1995.

THE COURT: Okay. Thank you.

Then what about the city? Does the city have any

plans apart from what I've just heard on behalf of the

individual defendants to conduct depositions?

MR. MICHALIK: Not at this time, Judge.

This is Paul Michalik for the city.

Whether or not there would be some additional

depositions that we would be seeking is, I guess, going to

depend on how things play out on some of this underlying fact

discovery. And it sounds like some of our time is going to be

spent trying to maybe track down some retired nondefendant

police officers. As the Court is obviously aware, sometimes

that becomes kind of a difficult process, tracking them down,

finding out if they're still around. But other than that, at

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this point, I don't think I have anything in addition to what

Mr. Stefanich just said.

THE COURT: Okay. That's helpful. Thank you.

So using that as a lead in to ask a couple of

questions about the pending motion, I suppose I'd be

interested in hearing from the individual defendants how your

access to the phone recordings plays into your plans to depose

those witnesses because it does strike me as a bit of a

fishing expedition.

I'm not sure that the briefing from the individual

defendants actually contests that that's more or less what's

going on here is that you want to look at all of the

communications between the plaintiff and people who you think

might have information to see if there's anything there.

Are you planning to do that in advance of depositions

in order to guide your questioning?

I'm just trying to figure out how these things fit

together, if at all.

MR. STEFANICH: Sure, Judge.

So what I think we tried to do was we tried to not

make it a fishing expedition by only seeking calls with six

out of the 66 people that Mr. Fletcher called, but I think for

how we would use this at depositions, I think we would wait to

depose the plaintiff until we -- you know, if we get the phone

calls, until we listen to the phone calls.

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I think, for some of these witnesses, you know, we

might not have to wait. I don't think we would have to wait

on Debra Sanders. To me, it seems like any sort of

communications with her we could ask, you know, sort of the

plaintiff about at his deposition.

We would wait for the damages witnesses which is

Delan Gardner and Natasha Reeves.

And then, like I said, I think we would hold off on

deciding whether to depose Ms. Blagg and Yvette McGee until we

listen to those phone calls as well.

We do have topics just from the records that we

received that we know we want to question these witnesses on,

but I think for these witnesses, it would give us more detail

on what's going on with plaintiff -- especially of the damage

witnesses -- what's going on with the plaintiff while he's in

custody, how is him being in custody impacting the

relationships with his children, are we hearing any sort of

emotional pain with what's going on in his life when he's

talking to his children and things like that. So I think that

was our thought process in this.

THE COURT: Okay. While I'm asking a couple of

questions, is there any indication that the plaintiff

actually -- and I'm switching topics now to the conversations

that you're seeking that were recorded between the plaintiff

and his attorney. And you've taken the position that any

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privilege is waived, but is there any indication that the

plaintiff actually knew that those calls were being recorded,

or is that an assumption that you're urging me to draw based

on the fact that they didn't follow the procedures for getting

on a private attorney call?

MR. STEFANICH: So I don't think in the response

brief they contest that he -- they do not contest that he knew

that it was being recorded.

I know in the inmate manual -- and I'm not sure if --

off the top of my head, I'm not sure if that was produced when

we subpoenaed the IDOC for the entire inmate file, but in the

inmate manual, I know it's disclosed that the outgoing prison

calls are recorded. And then again, sort of in other cases,

we know that when we receive a call, there's usually a

prerecorded message when you dial out that says that this call

is being monitored and recorded.

So I think all those things are true in this case.

And like I said, I don't think plaintiff actually contests

that he did not know that the calls were recorded.

THE COURT: Ms. Garcia, did he know?

I think it's accurate to say that it wasn't contested

that he knew, but it also isn't expressly acknowledged or

admitted that he knew. So what is the fact of the matter?

Did he know that he was on a recorded line?

MS. GARCIA: Your Honor, I can't answer for all of

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the calls. I believe that when he talked to Ms. Blagg, he had

the understanding that it would be privileged.

I know that there's a difference between whether a

call is privileged when someone calls out versus when someone

calls in, but given the amount of calls here, I'm not sure --

and this may be something I just need to look into further --

that all the calls we're requesting are calls where he

specifically called out. And so if that's the case, there may

be a number of calls where it was Ms. Blagg calling in and it

was recorded regardless of the fact that the IDOC should have

demarcated that as privileged in some way.

And so if that's not a fulsome response, I apologize,

but I don't believe that he knew or that if he knew, he

certainly didn't imagine all of his calls would have been

recorded.

MR. STEFANICH: Judge, just to clarify, we did

request just the outgoing calls. So the call logs that were

produced that we based the motion on are just for calls that

Mr. Fletcher placed and not calls that Ms. Blagg would have

placed into the facility.

And again, I think the case law -- you know, I think

the case law that we cited is pretty clear that, you know,

there's no -- whether he knew that calls were recorded, you

know, is part of it, but the case law says that there's no

reasonable expectation of privacy in your outgoing phone calls

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in the IDOC. So we think based on that case law that there is

no attorney-client privilege in this instance.

THE COURT: Any response to that, Ms. Garcia?

MS. GARCIA: Sure.

I think that the case law isn't -- as I kind of cited

in our response brief, isn't as clear in that, especially in

cases where there would be no other option for the calls to be

privileged or not recorded because they are privileged.

I just think that while I understand Counsel's point,

I think that there is definitely case law that says privilege

attaches regardless of whether or not he's placing an outgoing

call when he's talking to an attorney about things that are

privileged between an attorney and a client.

THE COURT: Okay.

MS. GARCIA: Not to interrupt -- sorry, Judge.

THE COURT: Go ahead.

MS. GARCIA: Not to interrupt, but I think,

obviously, you've seen our briefing and you've seen the thrust

of our argument, and we agree that we still -- a lot of the

requests are a fishing expedition that haven't -- that the

individual defendants haven't yet shown their reason for

requesting these calls specifically, and so, you know, on our

end of things, we'd want the subpoena quashed altogether;

however, if there are certain areas in which there's a

question of relevance, we would be open to having a deposition

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go forward first and then, based on the questioning in that

deposition potentially of plaintiff, potentially of dead

responders or Ms. Blagg, revisiting the question of whether

there is relevance in these phone calls.

Because these depositions are going to have to occur

regardless, and I understand that individual counsel would

want them in their possession before they were deposed, but I

think in this situation, since there is such a question of

whether they're relevant or for privilege attaching, it might

make more sense for certain of the phone calls in which

there's a question of whether they're relevant or privileged

to kind of be put on the back burner until we have those

depositions and have a little more clarity.

THE COURT: So what about that option? Because it

did occur to me that absent some testimony or some other basis

in the record to think that there was a relevant topic that

was discussed, this could be construed as just a pure fishing

expedition through an extremely large volume of recorded calls

from a lengthy time period.

It would seem to be easier to justify going in and

looking at all the calls from a particular person if there was

some indication that you're looking for something in

particular that was said rather than simply taking

particularly interesting people from the initial disclosures

and seeking all of the calls with those people.

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Why shouldn't I require at least some threshold

showing based on something else in the record that there's

actually something there to look for?

And this is directed towards defense counsel.

MR. STEFANICH: Well, I guess initially, we would say

we think we've already made that threshold showing based on

their Rule 26 disclosures, but, you know, I just don't think

that's, I guess, a practical solution.

If you think about going into a deposition with these

witnesses and trying to ask them about, you know, a specific

phone call that they had with the plaintiff in, you know,

2013, I think it seems to me like a lot of the answers are

going to be "I don't remember" until we can refresh their

recollection with the actual phone calls.

So I just think it's just not going to be, like, a

practical solution for us. And I think the case law sort of

bears that out where I know the Prince case talked about the

difficulty of making that initial showing without the actual

phone calls.

We obviously -- and we've never argued that we know

what's on the phone calls. We obviously don't know what's on

the phone calls, but I think by limiting the request to six

individuals and, you know, about 40 percent of the calls that

plaintiff made, I think we were pretty reasonable in our

subpoena and tried to narrowly tailor it to individuals that

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would have knowledge about the case and knowledge about the

issues that Mr. Fletcher is claiming in this case.

MR. MICHALIK: Your Honor.

THE COURT: I'm sorry. Who is --

MR. MICHALIK: -- Michalik.

I apologize. This is Paul Michalik.

I would just say also that waiting until the

depositions take place may result in some significant

inefficiencies because let's assume that there are some

questions that are asked at the deposition, the witness

doesn't recall or provides us some information that suggests,

you know, some additional reason to obtain these phone calls.

Is that then going to result in the need to redepose or, you

know, take a second deposition of some of the witnesses?

So I would just think that, you know, doing it by

taking the depositions first and then getting the phone calls

may lead to some inefficiencies.

THE COURT: Okay. I believe when the motion was

first filed, I asked and learned that at this point, there

hasn't been any objection from IDOC, that basically, the call

logs were produced, which was part of the agreement on how

this issue was going to be addressed between plaintiff and

defendants; and that based on a review of the call logs, that

sort of has come -- you know, we've sort of gotten to this

point. But nobody at the IDOC is saying that this is

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burdensome in any way or contrary to their policies in any

way. They're just looking for direction on how to go forward.

Is that fair to say?

MR. STEFANICH: Procedurally, we never sent -- we

pulled back the subpoena before it got to the IDOC for the

phone calls, so we only sent them the subpoena for the phone

logs.

In no case that we've had has the IDOC ever objected

based on burden to producing recorded phone calls, and they've

always been able to produce it pretty quickly. But like I

said, we pulled back that subpoena when plaintiff objected, so

they never actually received the subpoena for the phone calls.

THE COURT: Okay. So here's what I want to do. I

want to give it a little bit of thought. I'll issue a written

order based on the briefing which I think is pretty

comprehensive. I know the issues. I want to give a little

bit of thought to a couple of issues that have been raised and

issue a written order. And I'll get that to you in short

order.

I think in terms of a next status date, given where

we are in discovery and what your likely next steps will be

with depositions, that I'm going to direct the parties to file

a written status report and to do so by April 15th just to

indicate what additional progress you've made, any disputes

that have come up, any other issues in addition to the

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disputes that you'd like to discuss at a telephone status

hearing, whether there's been any change with respect to the

parties' views regarding possible settlement, and really

anything else that you'd like to discuss.

I will hold off on setting a next telephone status

hearing until I see what sort of issues you'd like to raise.

If you've got several new discovery disputes, we may

need to have a discovery conference, but if things are moving

smoothly and you're heading into depositions, it may be that

it makes sense to hold off on a telephone hearing for a little

bit longer to make sure you're on track for the close of

discovery.

So April 15th for the written status report. I'll

get you the ruling on the motion to compel, I would think,

within the next week or so so that you can get back to the

IDOC and proceed with your depositions.

Is there anything else for this morning?

MR. MICHALIK: Not from the city, Your Honor. Thank

you.

MS. GARCIA: Not from plaintiff. Thank you,

Your Honor.

MR. STEFANICH: And not from the individual

defendants. Thanks, Judge.

THE COURT: Thank you for your time and for answering

my questions.

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Have a good day.

(Proceedings adjourned at 10:32 a.m.)

*****

C E R T I F I C A T E

I, Brenda S. Tannehill, certify that the foregoing is

a complete, true, and accurate transcript from the record of

proceedings on February 23, 2022, before the HONORABLE

ANDREA R. WOOD in the above-entitled matter.

/s/Brenda S. Tannehill, CSR, RMR, CRR 4/8/2022

Official Court Reporter Date

United States District Court

Northern District of Illinois

Eastern Division

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