IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

JAMES FLETCHER, JR., ) 

 ) 

 Plaintiff, ) 

 ) No. 20-cv-04768 

 v. ) 

 ) Judge Andrea R. Wood 

JEROME BOGUCKI, et al., ) 

 ) 

 Defendants. ) 

ORDER 

 Respondent Cook County State’s Attorney’s Office’s motion to quash subpoenas for the 

depositions of Toni Giancola and Christa Bowden [97] is denied. The deliberative-process 

privilege does not prohibit outright the requested depositions, but it does prohibit questioning 

about the specific reasons Respondent chose not to retry Plaintiff or to oppose his petition for a 

certificate of innocence. Respondent may designate the deposition testimonies as confidential 

pursuant to the confidentiality order governing this case. In addition, Daniel Brannigan’s motion 

to intervene for the limited purpose of seeking a protective order [123] is granted, but his motion 

for a protective order [124] is denied. Plaintiff may ask Brannigan about his deposition testimony 

from a previous case so far as it concerns policies and practices followed by Brannigan as an 

investigator for the Cook County State’s Attorney’s Office, consistent with Plaintiff’s position in 

the briefing. See the accompanying Statement for additional details. 

STATEMENT 

Plaintiff James Fletcher, Jr. has brought this lawsuit in connection with his murder 

conviction in state court that was set aside in October 2019. Fletcher asserts claims under 42 

U.S.C. § 1983 and Illinois state law against the individual officers involved in the investigation 

(“Officer Defendants”) as well as the City of Chicago (collectively, “Defendants”). 

This Order addresses two discovery disputes involving third parties. First, the Cook 

County State’s Attorney’s Office (“CCSAO”) moves to quash the subpoenas that Officer 

Defendants issued for the depositions of two Assistant State’s Attorneys (“ASAs”), primarily on 

the grounds that the anticipated testimony would implicate the deliberative-process privilege. 

(Dkt. No. 97.) Second, Daniel Brannigan has filed a motion to intervene (Dkt. No. 123) and a 

motion for a protective order (Dkt. No. 124) with respect to his own deposition, arguing that 

Fletcher should not be allowed to ask him questions based on deposition testimony he gave in a 

previous case, McIntosh v. City of Chicago, et al., No. 17-cv-06357 (N.D. Ill.). 

“Parties may obtain discovery regarding any nonprivileged matter that is relevant to any 

party’s claim or defense and proportional to the needs of the case . . . .” Fed. R. Civ. P. 26 (b)(1). 

“[R]elevance is to be construed broadly” in the discovery context. Coleman v. Illinois, No. 19 C 

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3789, 2020 WL 5752149, at *3 (N.D. Ill. Sept. 25, 2020) (internal quotation marks omitted). And 

the requested information “need not be admissible in evidence to be discoverable.” Fed. R. Civ. P. 

26(b)(1). Therefore, “[i]f relevance is in doubt, courts should err on the side of permissive 

discovery.” Santiago v. City of Chicago, No. 1:19-CV-04652, 2023 WL 5096288, at *2 (N.D. Ill. 

Aug. 9, 2023) (internal quotation marks omitted). “The burden rests upon the objecting party to 

show why a particular discovery request is improper.” Gamon Plus, Inc. v. Campbell Soup Co., 

No. 1:15-CV-08940, 2022 WL 18284320, at *1 (N.D. Ill. May 26, 2022) (internal quotation 

marks omitted). The Court applies these principles to the third-party motions below. 

I. CCSAO’s Motion to Quash 

CCSAO asks the Court to quash the subpoenas that Officer Defendants issued for the 

testimony of Toni Giancola and Christa Bowden, two ASAs who were involved in Fletcher’s 

post-conviction proceedings in state court. Giancola played a role in CCSAO’s decision not to 

retry Fletcher; instead, CCSAO moved to nolle prosequi the charges—a procedure that “reverts 

the matter to the same condition which existed before the commencement of the prosecution.” 

Lund v. City of Rockford, 956 F.3d 938, 949 (7th Cir. 2020) (quoting Swick v. Liautaud, 

662 N.E.2d 1238, 1242 (Ill. 1996)). For her part, Bowden appeared in the state-court proceedings 

to represent that “the People would not intervene” with respect to Fletcher’s petition for a 

Certificate of Innocence (“COI”). (CCSAO’s Mot. to Quash at 2, Dkt. No. 97.) 

CCSAO argues that Officer Defendants’ anticipated questioning of Giancola and Bowden 

would violate the deliberative-process privilege, which “protects communications that are part of 

the decision-making process of a governmental agency.” Glass v. Vill. of Maywood, No. 22 CV 

164, 2023 WL 6461364, at *3 (N.D. Ill. Oct. 4, 2023).1

 Officer Defendants respond that, because 

Fletcher has confirmed that he plans to use the lack of a retrial and the COI as evidence of his 

factual innocence, they should be able to explore the rationale behind CCSAO’s positions on 

those issues. Fletcher filed his own response in which he takes no position on the matter. That 

said, Fletcher indicates that he will not introduce evidence or argument implicating CCSAO’s 

decision-making processes. 

To start, the nolle prosequi and the COI are relevant to this case. An element of Fletcher’s 

malicious-prosecution claims under Illinois law is that “the prosecution against him was 

terminated in a manner indicative of innocence.” Patrick v. City of Chicago, 974 F.3d 824, 832–

33 (7th Cir. 2020). The nolle prosequi could satisfy this burden if it “was entered for reasons 

related to [Fletcher’s] innocence.” Lund, 956 F.3d at 949. Likewise, the COI is “directly relevant” 

to this issue. Patrick, 974 F.3d at 832–33. And as Fletcher suggests, the nolle prosequi and COI 

might also prove relevant to his federal due process claims, so far as he alleges that Officer 

Defendants withheld evidence “material” to his conviction. Goudy v. Cummings, 922 F.3d 834, 

842 (7th Cir. 2019); cf. Kluppelberg v. Burge, 84 F. Supp. 3d 741, 747 (N.D. Ill. 2015) (“Should 

defendants offer evidence that [the plaintiff] was actually guilty so as to negate the materiality of 

1

 There is some authority suggesting that the deliberative-process privilege does not apply to Illinois 

governmental entities, Murdock v. City of Chicago, 565 F. Supp. 3d 1037, 1043–44 (N.D. Ill. 2021), but 

the parties do not discuss it here. They have thus waived the issue. E.g., Affiliated Dialysis of Joliet, LLC 

v. Health Care Serv. Corp., No. 23 CV 15086, 2024 WL 1195607, at *4 (N.D. Ill. Mar. 20, 2024). 

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the allegedly withheld evidence, the COI would be relevant rebuttal evidence . . . .”). Separately, 

if the jury concludes that Fletcher is innocent, it may award him higher damages. See Parish v. 

City of Elkhart, 702 F.3d 997, 1003 (7th Cir. 2012) (explaining in a § 1983 wrongful-conviction 

case that “the district court’s rulings improperly limited the introduction of evidence relating to 

[the plaintiff’s] innocence, and that evidence was critical to the damages issue”). 

In sum, the COI and lack of a retrial are relevant so far as they support Fletcher’s factual 

innocence, and Fletcher has confirmed that he plans to introduce the evidence accordingly. By the 

same token, CCSAO’s reasons for not seeking a retrial or opposing the COI are relevant too. For 

one thing, “[t]he decision to move for nolle prosequi is a matter of prosecutorial discretion,” 

Garcia v. City of Chicago, 24 F.3d 966, 971 (7th Cir. 1994); if reasons other than a belief in 

Fletcher’s innocence motivated the choice here, a jury could conclude that the nolle prosequi is 

less probative of Fletcher’s innocence, see Lund, 956 F.3d at 949 (listing among the potential 

rationales “limited resources, availability of police and other witnesses, and ease of garnering 

evidence”). And the lack of opposition to the COI ostensibly increased its odds of being 

granted—meaning the same sort of evidence as to why CCSAO did not intervene could similarly 

diminish the probative value of the COI. See Patrick, 974 F.3d at 833 (explaining that a COI has 

“limit[ed]” probative value if it does not “reflect a factual finding arising from the crucible of the 

adversarial process”). Especially at the discovery stage, this is enough to show the relevance of 

Giancola and Bowden’s testimonies.2

The Court therefore must determine whether the testimonies are privileged. Application of 

the deliberative-process privilege proceeds in two steps, beginning with the governmental entity 

making a prima facie showing that satisfies the following requirements: 

(1) [T]he department head with control over the matter must make a formal claim of 

privilege, after personal consideration of the problem; (2) the responsible official 

must demonstrate, typically by affidavit, precise and certain reasons for preserving 

the confidentiality of the documents [or testimony] in question; and (3) the official 

must specifically identify and describe the documents [or testimony]. 

DeLeon-Reyes v. Guevara, No. 1:18-CV-01028, 2021 WL 3109662, at *4 (N.D. Ill. July 22, 

2021) (internal quotation marks omitted). In this case, Officer Defendants do not dispute that the 

declaration of Jessica M. Scheller, who at the time of her testimony was Chief of the Advice, 

Business & Complex Litigation Division of the Civil Actions Bureau in CCSAO, satisfies the 

prima facie burden. (CCSAO’s Mot. to Quash, Ex. H (“Scheller Decl.”), Dkt. No. 97-8.) 

Accordingly, Officer Defendants must demonstrate a “particularized need” for the 

requested testimonies that overcomes CCSAO’s interest in confidentiality. DeLeon-Reyes, 2021 

WL 3109662, at *4. Factors to consider at this step include: 

2

 CCSAO suggests that Giancola and Bowden lack extensive knowledge of its post-conviction decisionmaking, which could mean that taking their depositions would not be “proportional to the needs of the 

case.” Fed. R. Civ. P. 26 (b)(1). But absent more concrete facts as to the scope of their knowledge, the 

Court will not disallow the depositions on that basis. 

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(1) the relevance of the information to the litigation; (2) the availability of other 

evidence that would serve the same purpose as the deposition sought; (3) the 

government’s role in the litigation; (4) the seriousness of the litigation and the issues 

involved in it; and (5) the degree to which the deposition sought would tend to chill 

future deliberations within government agencies, that is, would hinder frank and 

independent discussion about governmental policies and decisions. 

Id. (internal quotation marks omitted); see also United States v. Farley, 11 F.3d 1385, 1390 (7th 

Cir. 1993) (“[R]elevance alone is an insufficient reason for breaching the deliberative process 

privilege.”). The Court must weigh these factors on an issue-by-issue basis. United States v. 

Lawless, 709 F.2d 485, 487 (7th Cir. 1983). 

Consideration of these factors favors allowing the depositions of Giancola and Bowden to 

proceed—but only to a limited degree. As explained above, their testimony is relevant to the 

anticipated argument that Fletcher is factually innocent. The second factor, the availability of 

substitute evidence, cuts in both directions. Officer Defendants acknowledge there is already 

evidence in the record indicating that members of the Conviction Integrity Unit (“CIU”) did not 

believe Fletcher to be innocent prior to the granting of his habeas petition. (Officer Defs.’ Resp. 

Br., Ex. D (“Aducci Dep.”) at 54:19–55:07, Dkt. No. 99-5; Officer Defs.’ Resp. Br., Ex. J (“April 

2019 McGuire Letter”), Dkt. No. 99-11.) Yet those materials do not reveal whether CCSAO 

revised its position after the petition was granted; further, the documents CCSAO previously 

produced do not appear to fill this void. See Bahena v. City of Chicago, No. 17 C 8532, 2018 WL 

2905747, at *4 (N.D. Ill. June 11, 2018) (reasoning that “[t]here [was] no other evidence that 

would substitute for” a memorandum that revealed why CCSAO decided “to dismiss the 

charges”). 

The third factor counsels against allowing the depositions. CCSAO is not a defendant in 

this litigation, nor does “its conduct . . . bear on the question of whether [Officer Defendants] 

knowingly sought to procure the prosecution and conviction of an individual whom they knew to 

be innocent.” Evans v. City of Chicago, 231 F.R.D. 302, 317 (N.D. Ill. 2005). Conversely, the 

serious nature of the allegations that Officer Defendants caused Fletcher to be falsely imprisoned 

for thirteen years supports a particularized need under the fourth factor. Bahena, 2018 WL 

2905747, at *4; see also Evans, 231 F.R.D. at 317 (“A claim that police officers violated their 

sworn duty by knowingly seeking the prosecution and conviction of a person whom they knew to 

be innocent (and did so through multiple constitutional violations) strikes at the heart of the 

integrity of our criminal justice system.”). 

The final factor concerns the chilling effect of requiring the depositions to proceed. This 

factor recognizes the crucial role the deliberative-process privilege plays in facilitating 

unrestrained speech among government officials. See Nat’l Immigrant Just. Ctr. v. United States 

Dep’t of Just., 953 F.3d 503, 508 (7th Cir. 2020) (discussing the privilege as incorporated in the 

Freedom of Information Act). That some time has passed since the events in question—roughly 

four years since the conviction was vacated and two years since the COI was issued (CCSAO’s 

Mot. to Quash at 2–3)—perhaps mitigates the chilling effect. See Bahena, 2018 WL 2905747, at 

*4 (explaining that there was a particularized need when “four years [had] passed since the 

decision was made to dismiss the charges against Plaintiff”). Nonetheless, the Court finds that 

certain lines of proposed questioning would unduly impinge CCSAO’s interest. 

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Accordingly, in line with the need to apply the privilege on a particularized basis, the 

depositions may proceed subject to limitations. Questions about the procedural steps CCSAO took 

when deciding to nolle prosequi the charges and not to oppose the COI are appropriate. Such 

topics may include: what procedures were followed, who was involved in the decisions, what 

documents were reviewed, and whether any investigation was conducted. The parties may further 

ask about the factors that, as a general matter, determine whether CCSAO will retry a criminal 

defendant or oppose a COI (such as the strength of the case, resource management, availability of 

witnesses, and length of incarceration). The parties also may ask whether the ASA witnesses are 

aware of evidence actually exonerating Fletcher and ask them to identify such evidence, if it 

exists. Notably, many of these questions would arguably elicit purely factual material outside the 

scope of the deliberative-process privilege altogether. Rodriguez v. City of Chicago, 329 F.R.D. 

182, 187 (N.D. Ill. 2019). In any case, Officer Defendants have demonstrated a particularized 

need for the information sufficient to overcome CCSAO’s interest in privacy. 

By contrast, the parties may not ask Giancola or Bowden about the specific reasons why 

CCSAO decided to nolle prosequi and not oppose the COI in Fletcher’s particular case. For 

example, the parties may not ask the ASA witnesses about whether specific factors weighed in 

favor of or against retrying Fletcher or opposing his COI, any internal CCSAO determination of 

Fletcher’s actual guilt or innocence (other than identifying specific facts exonerating Fletcher), or 

any recommendations that were made, accepted, or rejected with respect to Fletcher’s retrial and 

COI. Those questions would seek information squarely within the deliberative-process privilege 

and Officer Defendants have not demonstrated a particularized need. Cf. Nat’l Immigrant Just. 

Ctr., 953 F.3d at 509 (reasoning that “communications to and from the Attorney General or the 

Office of the Attorney General discussing the pros and cons of certifying a case for decision, 

commenting on different lines of reasoning supporting a particular decisional path, and offering 

suggestions on draft opinions” lie “at the heart of the deliberative process privilege”). Moreover, 

the parties may not ask whether Giancola or Bowden believe that Fletcher is guilty or innocent; 

Officer Defendants have not shown that the personal beliefs of individual ASAs are relevant. 

The questions Officer Defendants may pursue per the above discussion, along with 

information already available, will enable them to counter Fletcher’s anticipated argument that the 

nolle prosequi and COI indicate his factual innocence. If Officer Defendants believe more is 

needed to overcome the prejudicial effect of this evidence, they may submit corresponding jury 

instructions. See Patrick, 974 F.3d at 833 (describing how “[w]ell-crafted jury instructions can 

guard against the risk of unfair prejudice or confusion of the issues” that could arise from the 

introduction of a COI into evidence). 

In short, although the deliberative-process privilege restricts the scope of questions Officer 

Defendants and Fletcher may ask, it does not warrant quashing outright Officer Defendants’ 

subpoenas to depose Giancola and Bowden. What is more, CCSAO has not demonstrated that the 

mental-process privilege or work-product doctrine, which it raises in only a cursory manner, 

provide alternative bases for quashing the subpoenas. See DeLeon-Reyes, 2021 WL 3109662, at 

*6–7 (concluding that such arguments had been waived in similar circumstances). To be clear, the 

Court is not holding that the testimony will be admissible at trial. Finally, because CCSAO does 

have a legitimate interest in confidentiality, it may designate the testimony as confidential 

pursuant to the order the Court previously entered in this case. 

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II. Brannigan’s Motion for a Protective Order 

Next, Brannigan seeks to intervene for purposes of obtaining a protective order with 

respect to Fletcher’s proposed questioning at Brannigan’s deposition. Fletcher and Defendants all 

want to depose Brannigan due to his role in this case as an investigator for CCSAO. Brannigan 

was previously a defendant in McIntosh; there, he participated in a deposition during which, 

among other things, he testified about his understanding of CCSAO policies and his general 

practices as an investigator. (Brannigan Mot. for Protective Order, Ex. 1, Dkt. No. 124-1.) 

Fletcher now proposes asking Brannigan about his McIntosh testimony during his deposition in 

this case. Brannigan objects on the grounds that such questioning would be unduly prejudicial. 

Defendants filed a brief supporting Brannigan’s position. 

The Court agrees with Fletcher that questions about Brannigan’s McIntosh deposition are 

permissible. There is little doubt that Brannigan’s prior testimony about CCSAO policies and 

practices is relevant to his work as a CCSAO investigator in this matter. It is true that, relevance 

aside, courts “may, for good cause, issue an order to protect a party or person from annoyance, 

embarrassment, oppression, or undue burden or expense.” Fed. R. Civ. P. 26(c)(1); see also 

PeopleFlo Mfg., Inc. v. Sundyne, LLC, No. 20 CV 3642, 2022 WL 7102662, at *2 (N.D. Ill. Oct. 

12, 2022) (explaining that the good-cause inquiry accounts for “the totality of the circumstances” 

(internal quotation marks omitted)). But none of these concerns warrant precluding Fletcher’s 

proposed questioning here. Although Brannigan cites the heavy burden of reviewing the entire 

McIntosh deposition in preparation for his deposition in this case, Fletcher has made clear that he 

plans to reference that testimony only so far as it concerns CCSAO policy and practices, including 

Brannigan’s own practices as a CCSAO investigator. This is not the type of burden that calls for a 

protective order. In addition, Brannigan does not offer any support for his suggestion that the 

Court should issue a protective order to prevent Fletcher from impeaching him with his testimony 

from the McIntosh deposition. 

Accordingly, although Brannigan’s motion to intervene is granted for the purpose of 

permitting the request, his motion for a protective order is denied. The Court reaches this 

conclusion with the understanding that Fletcher will not overly rely on the McIntosh deposition 

but will instead use it only as necessary to reference Brannigan’s prior testimony about CCSAO 

policies and practices. 

III. Conclusion 

For the reasons explained above, Respondent Cook County State’s Attorney’s Office’s 

motion to quash (Dkt. No. 97) is denied. Intervenor Daniel Brannigan’s motion to intervene (Dkt. 

No. 123) is granted, but his motion for a protective order (Dkt. No. 124) is denied. 

Dated: July 8, 2024 __________________________ 

 Andrea R. Wood 

 United States District Judge 

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