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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

January 24, 2024

10:00 a.m.

TRANSCRIPT OF PROCEEDINGS - TELEPHONIC STATUS HEARING

BEFORE THE HONORABLE ANDREA R. WOOD

APPEARANCES:

For the Plaintiff: LOEVY & LOEVY

BY: MR. SEAN STARR

311 North Aberdeen Street, 3rd Floor

Chicago, Illinois 60607

(312) 243-5900

sean@loevy.com

For the Defendants

Jerome Bogucki,

Anthony Noradin,

Raymond Schalk, and

Anthony Wojcik: HALE LAW LLC

BY: MR. BRIAN J. STEFANICH

53 West Jackson Boulevard, Suite 330

Chicago, Illinois 60604

(312) 341-9646

bstefanich@halemonico.com

For 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

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APPEARANCES: (Continued)

Respondent Cook County

State's Attorney's

Office: COOK COUNTY STATE'S ATTORNEY

BY: MR. MIGUEL E. LARIOS

MR. PAUL L. FANGMAN

50 West Washington Street

Suite 2760

Chicago, Illinois 60602

(312) 603-1427

miguel.larios@cookcountysao.org

paul.fangman@cookcountyil.gov

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

Official Court Reporter

219 South Dearborn Street, Suite 2144D

Chicago, Illinois 60604

(312) 554-8931

brenda_varney@ilnd.uscourts.gov

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(Proceedings heard via telephone:)

THE CLERK: Calling the next case, 20 CV 4768,

Fletcher, Junior versus Bogucki, et al., for status.

MR. STEFANICH: Good morning, Your Honor.

Brian Stefanich for the individual defendants.

THE COURT: Do we have plaintiff's counsel?

MR. STARR: Yes, Your Honor. Sean Starr on behalf of

plaintiff's counsel.

THE COURT: Thank you.

MR. MICHALIK: And Paul Michalik on behalf of

defendant City of Chicago.

THE COURT: Thank you.

And I believe the pending motions implicate the

interests or at least the involvement of the Cook County

State's Attorney's Office as well as the IDOC. I just want to

make sure that if we have somebody on the line for those

entities that they make an appearance as well.

MR. LARIOS: Good morning, Your Honor.

Assistant State's Attorney Miguel Larios on behalf of

the Cook County State's Attorney's Office.

THE COURT: Thank you.

And then I take it we do not have anybody

representing the IDOC with respect to the subpoena.

There's a motion by the plaintiff to quash a subpoena

or for a protective order with respect to a subpoena for a

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third party's recorded calls that's been fully briefed.

I assume that we don't have anybody other than

plaintiff's counsel and defense counsel who are present for

purposes of that motion. Is that fair to say?

MR. STARR: Yeah, that's plaintiff's impression as

well.

THE COURT: And, to be clear, the third party whose

calls are being sought is Mr. Woodland.

Do the parties have any reason to believe that

Mr. Woodland or anybody acting on his behalf was hoping to

participate in the hearing today?

MR. STARR: This is plaintiff's counsel, Sean Starr,

Your Honor.

We had previously spoken to Mr. Woodland and informed

him that the subpoena had been tendered to IDOC and the calls

had been erroneously produced, and he indicated that he

objected.

We asked if he had counsel, and he said he did not

have counsel. He suggested that he was going to write a

letter to the Court, but that is the extent of the

communication we had with him.

THE COURT: And he is still in custody; is that

correct?

MR. STARR: That is correct.

THE COURT: At which facility is he currently housed,

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if you know?

MR. STARR: It's Illinois River, Your Honor.

Sorry. It took me a moment.

THE COURT: That's fine.

So I did not see any letter or other submission from

Mr. Woodland on the docket. I suppose it's possible that he

might have attempted to send something to counsel in the case.

From your statements just a moment ago, I take it

that plaintiff's counsel, Mr. Starr, you and your colleagues,

have not received any submission from Mr. Woodland in an

effort to get it to me on this motion?

MR. STARR: We have not, Your Honor.

THE COURT: And then what about the individual

defendants' counsel? Have you received anything, perhaps a

letter either objecting to the production, or something

directed towards me?

MR. STEFANICH: No, Your Honor.

THE COURT: Okay. Well, I don't have anything. I

suppose, with the pace at which mail sometimes moves, it's

conceivable that something is in transit, but with the

briefing of this matter being completed on the 11th of this

month, I have to assume that if Mr. Woodland desired to send

something in that I would have it by this time.

Okay. Let me address some issues with respect to the

state's attorney's office, and then I have a couple of

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questions with respect to the subpoena for Mr. Woodland's

documents, and, hopefully, we can get those matters resolved.

First and foremost, just to confirm, the unredacted

felony review folder was produced to the parties from the

state's attorney's office; is that correct?

MR. LARIOS: Yes, Your Honor.

This is State's Attorney Miguel Larios.

MR. STEFANICH: That's correct, Judge.

THE COURT: And so, in those materials, do those

materials address or otherwise confirm the extent of the

involvement of the two ASAs that the individual defendants are

seeking to depose?

And I suppose that's a question directed towards

defense counsel.

MR. STEFANICH: Sure, Judge.

So the felony review folder was drafted by a

different ASA, ASA Jennifer Walker. The two ASAs that we're

seeking to depose that are the subject of this motion are ASA

Giancola and ASA Bowden.

So we received in discovery a document from the

state's attorney's office that ASA Giancola drafted that was a

memo to her supervisors after Mr. Fletcher's case was sent

back to state court after it was granted habeas relief. And

that memo is partially redacted with her recommendation on

whether to retry Mr. Fletcher or dismiss the charges.

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Obviously, the charges were ultimately dismissed. So that's

ASA Giancola.

ASA Bowden is the state's attorney who represented

the state in Mr. Fletcher's Certificate of Innocence

proceeding, so all we have really on ASA Bowden is her

appearance at that hearing and some emails between her and

plaintiff's counsel essentially scheduling the hearing.

At the Certificate of Innocence hearing, ASA Bowden,

representing the state, took no position on Mr. Fletcher's

petition for a Certificate of Innocence. So, for that

deposition, we don't know if she was the ultimate

decision-maker for the state's position, but she's the only

person from the record that we know was at least involved.

THE COURT: And do you have any reason to think that

either two of the individuals you're seeking to depose were

personally involved in interviewing any witnesses or otherwise

involved in fact gathering in support of either the decision

whether to retry Mr. Fletcher or the decision on whether to

oppose his petition for a Certificate of Innocence?

MR. STEFANICH: So I know that my clients, the

detectives, were never interviewed when those decisions were

being made. So that's what I know.

I guess I have some assumptions on how the state's

attorney's office generally conducts reviews for Certificates

of Innocence, but I don't know that for sure. Those are just,

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I guess, my assumptions.

THE COURT: And where I'm heading with that question

is that it seems to me that any opinions or views held by

these two individuals on whether Mr. Fletcher is actually

innocent is really irrelevant and that the only thing that

would be relevant here is if they have actual facts in their

possession or are aware of facts that show that he was

actually innocent or that somebody else committed the offense

or that, presumably, any information that they relied upon to

support their decision has been produced in one format or

another.

So what I'm focusing on is the distinction here

between factual information gathered over the course of either

the original investigation or in connection with the decision

whether to retry him or oppose the Certificate of Innocence as

opposed to just an opinion that they may have on whether he

actually did it or didn't do it.

Do you believe that there is factual information that

was gathered in connection with either preconviction or post

conviction activities by the state's attorney's office that

you would obtain through these two depositions?

MR. STEFANICH: I would say factual information,

Judge, yes, but I would also qualify that as factual

information, to me, includes what wasn't done.

So, for example, in the Certificate of Innocence

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proceeding, if the state's attorney's office didn't interview

a single witness, didn't review the record, didn't interview

the victims, didn't gather information from the Conviction

Integrity Unit of the state's attorney's office which did

interview the victims, I think that would be relevant.

THE COURT: Why?

I have a hard time seeing why that's relevant.

MR. STEFANICH: Sure. Because we are going to have

to explain why the Certificate of Innocence was entered, why

Mr. Fletcher has this Certificate of Innocence.

THE COURT: But that wasn't the decision of the

state's attorney's office; that was the decision of the judge.

MR. STEFANICH: Sure, but the state's attorney's

office didn't object. They took no position. So, generally,

when the state's attorney's office takes no position, it's

essentially a proforma order that the judge enters. There's

no adversary proceeding.

THE COURT: Okay. Let me hear from Mr. Larios. And,

first of all, the papers are a bit vague as to what these to

ASAs actually know about the case. And I think, in the

response brief, there's a suggestion that they -- at that time

that that was filed -- I know that was back in maybe the fall

when the reply was filed -- there was a suggestion that the

two ASAs had not been interviewed by counsel in connection

with this briefing to know the full extent of their knowledge.

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Do you know whether they were involved in any fact

gathering in connection with the office's decision-making?

MR. LARIOS: Your Honor, this is Miguel Larios.

I have included my colleague Paul Fangman who did the

briefing on this motion, so I'll defer to him.

MR. FANGMAN: Good morning, Your Honor. This is

Assistant State's Attorney's Paul Fangman. I just joined the

call a little late. I apologize.

THE COURT: Thank you.

MR. FANGMAN: Thank you.

I just heard your questions of Counsel and his

answers, and when we filed our motion to quash the subpoenas,

we looked at the docket information for ASA Toni Giancola and

ASA Christa Bowden, and from what we could see, there were no

filings made in this, that one of the ASAs simply appeared in

court on the day that the Certificate of Innocence was granted

and stated to the judge that the state's attorney's office had

no position.

So there's no information in the record anywhere that

the ASAs did any fact gathering. There's nothing that's

filed. There's no information about interviews that were

conducted. There's nothing to show that any interviews were

conducted.

In the absence of any record that shows that there

was -- there's no paper at all. I guess it would be hard to

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show that there was any fact gathering that took place if

there's no evidence of it.

If counsel has not -- in all of the document

subpoenas that they've issued and received documents from our

office, there's no record. There's no paper record anywhere

that any additional work was done in connection with the

statement that the state's attorney's office takes no

position. So I guess that's the answer to the inquiry is that

nothing happened as far as we know.

THE COURT: And so --

MR. STEFANICH: Judge, if I could just clarify.

THE COURT: Just one quick question.

Are the two attorneys still with the state's

attorney's office?

MR. FANGMAN: I believe they were at the time we

filed the motion. I would have to check to see at this point.

MR. STEFANICH: Judge, I know ASA Bowden from another

case. I know that she is no longer with the office. ASA

Giancola is still with the office.

A point of clarification on the fact-gathering

question.

I did mention that memo that ASA Giancola drafted to

her superiors, so it does seem like she gathered some facts.

She doesn't cite to -- there's no, like, legal citations or

record cites or anything like that in the memo, but it appears

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like she's looking at something. I don't know if she's just

looking at the trial file or the habeas petition or the post

conviction petitions or what or if she interviewed witnesses

or if she got the CIU file, but she does have a memo where

she's discussing the facts of the case and ultimately making

the recommendation that she made.

THE COURT: So, Mr. Larios, to the extent that either

of these attorneys actually interviewed witnesses in order to

make a recommendation on whether or not the office should, for

example, retry Mr. Fletcher or oppose the Certificate of

Innocence, would you agree that what the attorneys were told

during those interviews would be discoverable and would be an

appropriate thing for them to have to testify about during a

deposition?

MR. FANGMAN: Yes. This is Attorney Fangman.

Yes, Your Honor, you're right. If either of those

ASAs interviewed any witnesses and asked fact-based questions

and there was any record of the responses, the answer to your

hypothetical question would be yes.

I would just repeat I don't believe that they did.

And that's just my personal opinion. I know that there's no

record that they did.

THE COURT: And why not just ask them?

I guess that's why I'm a little perplexed by it.

Certainly the one who is still employed at the

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office, Giancola, why would you not just ask the attorney,

"What did you do? Did you do any fact finding?" So that

you're not having to guess at it?

MR. FANGMAN: I can certainly do that. We've not

been issued -- that's not what Counsel was seeking. They were

seeking a deposition basically as we're talking about now. So

if that's what the Court is directing, I can ask those

questions of those two ASAs.

THE COURT: Because it seems to me that not

everything that is reasonably likely to be within their

knowledge would be covered by a privilege. And I think you

just confirmed that by acknowledging that if they actually

went out and maybe they re-interviewed a witness in connection

with the decision on whether to retry Mr. Fletcher, which

seems like a reasonable thing that you might do, given that

the information gathered through that process would seem to be

an appropriate deposition topic, even if I think you're right

as to other things such as the specific reasons why the office

decided not to retry Mr. Fletcher, I would think it would be

much more efficient to gather that information or at least

find out if such information exists as opposed to having the

witness sit for a deposition just to answer those questions.

Or, put differently, as it stands now, not knowing whether

there's any factual information of that sort in the possession

of these witnesses, I might be inclined to say, you know, the

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defendants get to depose them to ask whether they have any of

that information. But it seems to me that that would not

necessarily be a very productive use of anybody's time and

resources if some sort of confirmation can be obtained

indicating that that sort of information does not exist.

MR. FANGMAN: I agree with you, Your Honor.

And just to clarify, certainly any interviews that

the ASAs conducted, just like in post conviction processes, if

they went out -- if investigators went out and conducted

interviews and collected facts, our office would not typically

assert deliberative process privilege or be able to. So if

the ASAs conducted interviews with witnesses, we would not

assert any -- typically assert any deliberative process

privilege.

I believe what the briefs in this motion to quash

proceeding have focused on is the documents that the ASAs sat

at their desks and reviewed, the conversations that they had

with their coworkers. And we certainly would and have

asserted deliberative process privilege for the inputs into,

let's say, the ASAs' brains when they make that determination

or put together that memo.

Their own deliberations we would always assert are

privileged, but certainly I can ask those questions and report

back. If they conducted any fact-based interviews, again,

there's no record of them, so the assumption has to be that

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they didn't, but I certainly can ask those questions.

THE COURT: To the extent the individual attorneys

were aware of facts demonstrating who actually committed the

murder, whether it's facts showing that Mr. Fletcher is

innocent or facts showing that he is guilty, would you

consider that to be something covered by the deliberative

process privilege?

MR. FANGMAN: Yes, Your Honor, because the ASAs

certainly are aware of facts in the case in their entirety;

and asking an attorney their knowledge of facts necessarily

involves which facts went into their decision and why and what

the order was and what the importance was.

So, I mean, I think you can -- obviously, we can all

expect that they knew all of the facts that were necessary.

THE COURT: And I don't necessarily think this is

what the individual defendants are planning to do if they're

allowed to take the deposition, but, hypothetically, if they

were to ask a question at a deposition, "In your review of the

case file or otherwise, are you aware of any other person who

confessed to the killing," would that be subject to the

deliberative process privilege?

It might be objectionable for other reasons. You're

asking somebody to remember everything in the record,

et cetera, but just in terms of the privilege issue, would

there be an objection to a question along those lines, in

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other words, "Are you aware of anyone who was interviewed in

connection with this matter who confessed to the killing?"

MR. FANGMAN: I think that the parties can find out

that information in a myriad of other ways and not asking

those questions of the ultimate decision-makers or the people

that were involved in relaying the decision to the Court.

I think any time you ask "Were you aware of this

fact" or "Were you aware of that fact," again, these are not

fact witnesses; these are attorneys that are reviewing the

files. So if there is evidence that somebody else committed

the crime or confessed, that evidence would come from the

actual, you know, witness or statement or records. And I

believe that defendants already have all of that information.

THE COURT: Yes, certainly in terms of admissibility,

it might come from the actual witnesses. I suppose the

question one might have is how do they know who they should be

looking at or interviewing as a potential witness.

What is the exact objection to identifying who the

ultimate decision-maker was with respect to the decision to

not oppose the Certificate of Innocence?

MR. FANGMAN: I think that that issue has been

litigated, I think, in some other proceedings by my

supervisors. I think that the general objection has always

been that the deliberative process privilege covers the

decisions and the decision-makers.

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THE COURT: So, for example, is there an objection to

describing, in general, this is a decision that is signed off

on by the state's attorney based on a recommendation from the

ASA who reviews the file or however -- I guess I'm curious as

to the basis for a general procedure which I'm going to assume

is a procedure that's in place for all or most cases that are

being reviewed at that stage where habeas relief has been

granted.

Why is that a deliberative process concern, just what

the procedure is?

MR. FANGMAN: Because that goes into the

deliberations. And I think, just generally speaking, the more

fine tuned the parties get into this process, the more

pressure is placed on the individuals or could be placed on

the individuals to determine the outcome.

I suspect we've filed the affidavits and we've

asserted the deliberative process privilege for the purpose of

avoiding influence in the process, the deliberations of

whether to prosecute or not. And I think as we fine tune that

and everyone gets fine tuned more into each step of the

process, there's more opportunity for the parties to be -- for

the state's attorney's office to -- for attempts to influence

the decisions of our office.

THE COURT: It's very common, in fact, required

typically when people assert a privilege and they prepare a

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privilege log you identify who was involved in communications.

I've received privilege logs from a variety of

government agencies over the years where they've asserted the

deliberative process privilege and they identify who was

involved in the particular communication over which the

privilege is being asserted; and you're suggesting that even

just identifying the people involved even by their position

would have a chilling effect or otherwise undermine the goals

of the deliberative process privilege?

MR. FANGMAN: I think that is the argument our office

has put forth. And I guess I don't recall exactly the memo

that Counsel references, but, typically, if ASA Bowden wrote a

memo, we would generally produce the redacted memo, and it

would show who she sent the memo to. We've always produced

that.

We've always -- if there's a memo that's written, we

produce the names of who it went to, the date, the person who

wrote it, and then we redact the memo. So, in this case, I'm

assuming we did produce that already and counsel already has

that information.

THE COURT: Okay. Thank you.

Mr. Stefanich, I wanted to give you a chance to

respond to any of that that you'd like to briefly, please.

MR. STEFANICH: Yeah. So, to clarify, again, I think

it's two separate things. One, for ASA Giancola, we do have

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that memo, and we do know who that memo was sent to. That

portion of the memo wasn't redacted.

For ASA Bowden and the Certificate of Innocence

proceeding, we don't have any privilege log or correspondence

or redacted correspondence to ASA Bowden or from ASA Bowden

indicating who was directing her to take no position for the

office or anything like that. So we don't have that

information. We don't think that's covered by the

deliberative process.

The ultimate decision-maker, I think, is a factual

matter. At least from the individual defendants' point of

view, there's no undue influence, at least for the defense,

because we don't even know -- the defendants don't even know

this is happening. Right? We don't know that habeas relief

is granted, so we wouldn't even know -- the defendants

wouldn't even know that there's a potential that the case

would be vacated. They're just unaware of what's happening on

20-year-old cases.

So I think that's my response to those questions.

THE COURT: One quick question for you.

So are you concerned that you don't actually have all

of the factual information from the underlying investigation

either pre or post conviction that would either be exculpatory

or inculpatory for Mr. Fletcher?

MR. STEFANICH: I think we have everything for the

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conviction -- the Conviction Integrity Unit process. And then

I think we have everything for the decision. It's redacted,

but I think the memo is the only document that would exist for

the decision to not retry Mr. Fletcher.

We don't have -- we really don't have anything except

the transcript and a couple of emails to and from counsel and

ASA Bowden about the Certificate of Innocence proceeding, so I

don't know if there's anything that exists.

My understanding -- so I don't know if there's

anything else that exists. Obviously, somebody had to tell

ASA Bowden to take no position, but I don't know if there

would be documents of that. I don't know if the process is

similar to the process when you're going to nolle a case where

there would be a memo or if it's just an oral communication.

I don't know.

THE COURT: Thank you.

Mr. Starr, I don't know the plaintiff's view on all

of this. The briefing has taken place between the individual

defendants and the state's attorney's office.

Do you want the ability to question these witnesses

at a deposition? Are you supportive of the individual

defendants' efforts?

MR. STARR: As we indicated in our response to the

motion to quash, we are not taking a position on that.

The only thing that we stated in our motion is that

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we intend -- we don't intend to introduce any evidence about

why the Cook County State's Attorney chose not to reprosecute

plaintiff or any information about their decision about why

they chose to -- their decision regarding the Certificate of

Innocence.

The only thing that we intend to introduce would be

that he wasn't reprosecuted and that he got his Certificate of

Innocence. And so we're going to stand down on whether or not

these individual ASAs should be deposed in this case.

THE COURT: Why would it be relevant that he wasn't

reprosecuted, given that he has a Certificate of Innocence?

So I appreciate that an element that has to be proved

here is that the matter was terminated in a manner favorable

to him and indicative of innocence. I think the Certificate

of Innocence speaks to that element, but why is the decision

whether or not to reprosecute something that you think you

should be able to admit at trial?

MR. STARR: I think because of the reason you just

outlined, Your Honor. I mean, I think it is an element of the

Certificate of Innocence, and our intention would be to

introduce the COI into evidence at trial.

And so other than that, the habeas decision exists as

it does, and after that, the state chose not to retry that.

That decision, I think, is an element of the Certificate of

Innocence. There was no retrial. There was no decision by

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the state's attorney to continue the case.

THE COURT: And do you expect that part of what

you'll be seeking to prove at trial is actual innocence, given

that it's one of the things that might impact the damages that

your client's entitled to?

MR. STARR: That's correct.

THE COURT: I'm going to leave that issue for a

moment and then turn to the issue of the recordings involving

Mr. Woodland and touch on it briefly because I do have other

status hearings where the parties are waiting patiently for

their turn this morning.

And this is plaintiff's motion. I'm having a hard

time seeing how the plaintiff has standing to assert a privacy

interest on behalf of Mr. Woodland. I'm also having a hard

time seeing how plaintiff can assert that this is an extremely

burdensome request given that, as I understand it, the

subpoena has now been narrowed to just seeking the 109 calls

to the three other individuals.

Is there anything that wasn't in your brief that you

would want to add on either of those points, Mr. Starr?

MR. STARR: Sure, Your Honor.

I think the thrust of our brief is not so much

Mr. Woodland's privacy, though we do address that. You know,

the idea that these calls are surreptitiously -- actually, the

calls with Mr. Fletcher suggest that Mr. Fletcher's privacy

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could, in fact, be at issue here. We don't think that these

are Mr. Fletcher's calls --

THE COURT: Yes, but you didn't make that argument,

and you certainly could have. If you knew that to be the case

from your client, you certainly could have argued, by the way,

rightly or wrongly, he was actually using somebody else's

phone privileges. And so this is indirectly getting to his

conversations, but you didn't argue that.

MR. STARR: Right. And I think we did in our reply

state that these are not his calls, but it's also -- when

someone's incarcerated for that length of time, to question

them about every single phone call they made and whose

credentials they used, if they were always their own, you

know, it strains their memory.

And so that's the only point that I would make in

regards to Mr. Woodland's privacy other than what I've already

previously mentioned is that Mr. Woodland told us that he

objected and that he did not want his calls being reviewed by

any third parties, which, you know, he doesn't have an

attorney, he hasn't obviously sent a letter to the Court, as

we established.

Regarding the burdensome part of it, you know, I can

just tell you anecdotally, yesterday, we had a deposition in

this case, and it was a witness who you had previously granted

the defendants access to plaintiff's calls with.

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There's 13 calls to this witness. I personally spent

10 hours reviewing these 13 calls, and during the deposition,

they asked about 30 seconds of those seven-plus hours of phone

calls. And that was all they used, and it wasn't even a

relevant question.

We think that given the fact that there's a month

left in discovery, the idea that we have to review some third

party's calls who did not show any relevance at all in our

opinion, it just is not proportionate to the needs of the

case, Your Honor.

THE COURT: So with respect to Mr. Woodland's

possible desire to not have his calls produced, which I do

have some sympathy for, he was incarcerated. I assume that

he, like all prisoners, are informed that their calls are

subject to being recorded unless they're attorney-client

calls. There's no expectation of privacy. I would assume

that he's been advised of that. There might even be signs

posted, or it might be in the inmate handbook.

And I do think, as narrowed to just these three

individuals, Mr. Fletcher, Senior; Ms. Sanders; and LDub and

limiting it to 109 calls as opposed to the thousands that

plaintiffs reference in the motion to quash -- or I guess

maybe it's a motion for a protective order technically rather

than a motion to quash, styled as a motion to quash -- it

strikes me as less of just a fishing expedition as limited to

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these individuals.

I appreciate that Mr. Fletcher, Senior was one of the

individuals for whom I'd previously said calls would not need

to be produced between him and the plaintiff here; however, it

sounds like subsequent deposition testimony and other

investigation have suggested that Mr. Fletcher may have had a

role in advancing his son's claimed innocence. And it is at

least noteworthy that he had such significant, in terms of

length, conversations with Mr. Woodland. And the fact that

Mr. Woodland or at least somebody using his privileges had so

many calls with Ms. Sanders also, I think, is a matter of

interest.

So I am inclined to allow the production of the 109

calls limited to just those calls with just those three

individuals, but I am concerned by the fact that Mr. Woodland

hasn't had an opportunity to weigh in here.

Is there any particular reason why the defendants

didn't try to notify Mr. Woodland that this was being sought

or otherwise, you know, give him an opportunity to weigh in

since he would seem to have privacy interests, to the extent

there are any, that are implicated?

MR. STEFANICH: Sure, Judge. I think the thought

process was twofold. One, we don't think there is a privacy

interest. I think Your Honor is 100 percent right that the

Offender Orientation Manual which we attached as an exhibit at

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Stateville, which is where Mr. Woodland was incarcerated,

notifies the inmates that their calls are recorded. There are

signs by the phones that indicate that the calls are being

recorded. And then, you know, when we listened to

Mr. Fletcher's calls, at the beginning of every call, there's

a prerecorded statement indicating that the calls are being

recorded. So, you know, we don't think there's a privacy

interest in the calls that inmates have in these recorded

calls.

And, secondly, Judge, we think Mr. Fletcher is on the

calls and not Mr. Woodland, so that's -- I guess that's the

reason. That was our reasoning.

THE COURT: And I don't know if that's the case.

Look, I think that the proffer that's been made

regarding the involvement of both LDub and Red Dog in

Mr. Fletcher's case provided at least some basis to think that

this isn't just a fishing expedition.

The fact that Ms. Sanders indicated that she barely

knew Red Dog but yet I think there were 42 calls or something

along those lines from the person that is now believed to be

Red Dog, Mr. Woodland, to Ms. Sanders, given the fact that

Mr. Woodland was involved in actually filing FOIA requests in

order to obtain information, it certainly seems like there's

enough involvement here involving these individuals to support

a narrowed request for the calls.

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Even though it's the responding party who has

standing to object to the burdensomeness of a subpoena, I do

think proportionality concerns are always something that

should be considered.

The original scope of the subpoena which I understand

would have covered all of the calls I do think is far too

overbroad.

I do think the offer to limit it to 109 calls for

these between Mr. Woodland or a person using his credentials

and these other three individuals is a reasonable place to

draw a line, so I am going to go ahead and deny the motion to

quash with that narrowed scope and noting that to the extent

it would have been my preference perhaps for Mr. Woodland to

have received a more formal notification of the subpoena and

opportunity to weigh in, he did have actual notice of the

subpoena and the objection that was being raised. And, in any

case, his privacy interests in these calls is lessened by the

fact that these are recorded prison calls.

And given the narrower scope and the issues that have

been raised about whether it's actually him on all the calls,

I don't know whether that's the case or not, but I think

that's enough to satisfy me that it's appropriate to move

forward and to allow the production. So I'm going to deny

plaintiff's motion to quash.

On the motion to quash the deposition subpoenas, I'm

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going to, for the moment, take it under advisement and issue

an order but say this.

I expect the order that I issue is going to say some

things are covered by a privilege and can't be asked of these

witnesses but that there are other things that would be in the

universe of acceptable questions.

I think once you see where I'm drawing the line --

and I'll put that in the order -- it certainly would make

sense for Mr. Larios to try to contact these folks or other

people in his office who would know the extent of the

involvement and just find out if it's even worthwhile to have

a deposition.

I know that we're approaching the end of discovery.

I will allow time for the depositions to go forward, but if

these two individuals sign declarations saying, "All I did was

go to a court appearance, I didn't do anything else on this

case, I have no knowledge of any investigation or internal

discussions or whatever it is," hopefully, that person won't

have to sit.

There's still a question in my mind as to whether the

identities of people involved, including the ultimate

decision-maker, should be covered by the privilege, but I will

indicate that in the order and issue it shortly.

Are the depositions of those two individuals -- I

take it they're not actually scheduled for dates before

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January 31st?

MR. STEFANICH: They are not scheduled for dates.

The fact discovery deadline is the end of February, too, but

the deps are not scheduled.

THE COURT: Okay. Why did I think it was the end

of -- oh, I see. It is February 29th and my own order.

MR. STEFANICH: Right.

THE COURT: Okay. So, hopefully, there will be an

opportunity to finish that. So I'll issue that order.

There's no further action, I take it, needed with

respect to the felony review folder? Any disputes about any

remaining redactions there have been resolved, correct?

MR. STEFANICH: Correct.

THE COURT: And I will set a further status date

before the February 29th deadline, maybe the third week of

February, to make sure that the additional depositions go

forward.

Laritza, if you can suggest a date and time.

THE CLERK: Yes, Judge. We can do February 27th at

10:30.

THE COURT: And, Mr. Larios, I don't necessarily

expect that you would be needed for that hearing.

Does that work for plaintiff's counsel?

MR. STARR: Yeah, I believe so, Your Honor, yes.

THE COURT: And for defense counsel?

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MR. STEFANICH: Yes. Yes, Your Honor.

THE COURT: Very good.

And then, just to be clear then, so the motion --

plaintiff's motion to quash the subpoena for Mr. Woodland's

calls is denied subject to the modifications to the scope of

the subpoena discussed on the record. That will be confirmed

in the order.

The motion for a protective order for the depositions

is taken under advisement. As I said, I'll put into writing

what things I think are acceptable and which ones are not to

question these witnesses about and likely set a time frame for

the parties to confirm that in light of that, it's still

necessary to depose one or both of those attorneys.

MR. STARR: Your Honor, I would be remiss if I didn't

mention this, and I don't think this necessarily changes your

opinion, but you mentioned regarding the subpoena and the

motion to quash the subpoena that Ms. Sanders had no knowledge

of Red Dog. That's not represented in the record, and I don't

think defendants represented that as much.

What they represented was that she did not know that

Red Dog's real name was Albert Woodland. She certainly knows

Red Dog, and the calls they have demonstrate that extensively.

So I just wanted to clarify that point so that you're

aware that there is not a record that she does not -- she

didn't testify to that fact.

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THE COURT: No. Yes. And I perhaps may have

overstated it.

My understanding from the briefing is that she knew a

person Red Dog, she didn't know Red Dog's real name, that it

was Woodland.

I thought that the briefing also suggested she'd

indicated that she didn't really know Red Dog all that well.

And then part of the defendants' position was that that is at

least called into question by the few dozen calls from

Mr. Woodland to Ms. Sanders, including some that took place

after Mr. Fletcher was released from custody.

Am I recalling that correctly from the briefing?

MR. STARR: Yes.

MR. STEFANICH: That's correct.

THE COURT: So that was my understanding that

informed my decision that I'll allow those calls to be

produced.

MR. STARR: Thank you, Your Honor.

THE COURT: Okay. Thank you all for answering my

questions this morning. I very much appreciate it. Have a

good day.

(Proceedings adjourned at 10:52 a.m.)

* * * * * *

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C E R T I F I C A T E

I, Brenda S. Varney, certify that the foregoing is a

complete, true, and accurate transcript from the record of

proceedings on January 24, 2024, before the HONORABLE

ANDREA R. WOOD in the above-entitled matter.

/s/Brenda S. Varney, CSR, RMR, CRR January 26, 2024

Official Court Reporter Date

United States District Court

Northern District of Illinois

Eastern Division

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