Case: 1:14-cv-05934 Document #: 334 Filed: 07/26/18 Page 1 of 10 PageID #:6011

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

STANLEY WRICE, )
)
Plaintiff, ) No. 14 C 5934
)
v. ) Judge Elaine E. Bucklo
)
JON BURGE, et al., ) Magistrate Judge Finnegan
)
Defendants. )

ORDER

Plaintiff Stanley Wrice brought this action against the City of Chicago and various

former Chicago police officers, asserting federal and state claims relating to Wrice’s

alleged wrongful conviction and 30-year incarceration for the 1982 rape and sexual

assault of a victim known as “K.B.” (Doc. 63). Now before this Court is Non-Party Richard

M. Daley’s Motion for Protective Order Quashing Plaintiff’s Deposition Subpoena. (Doc.

297). Having considered the parties’ respective submissions (Docs. 175, 312, 315), the

Court now grants Mr. Daley’s motion for the reasons set forth below.

BACKGROUND

Plaintiffs’ original Complaint in this action asserted claims against several former

Chicago police officers: John Burge (Lieutenant), John Byrne (Sergeant), Peter Dignan

(Detective), the Estate of Leroy Martin (Superintendent), former Mayor Richard M. Daley,

and the City of Chicago, among others. (Doc. 1). By Memorandum Opinion and Order

dated September 25, 2015, Judge Bucklo dismissed all claims against former Mayor

Daley (as both Cook County State’s Attorney from 1981 to 1989 and Mayor from 1989 to

2011), but allowed certain claims against Defendants Burge, Byrne, Dignan, and Martin
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(the “Individual Defendants”) and the City to proceed. (Docs. 58-59). The current First

Amended Complaint followed (Doc. 63), in which Plaintiff alleges various constitutional

violations by the Individual Defendants (Counts I-III) and a claim pursuant to Monell v.

Dep’t of Social Services of the City of New York, 436 U.S. 658 (1978), against the City.

Among the constitutional violations alleged against the Individual Defendants is a

Brady claim that they “caused and/or continued Plaintiff’s wrongful charging, prosecution,

conviction and imprisonment by withholding from the prosecutors, judges and defense

attorneys involved in Plaintiff’s prosecution” the following information: “that the statements

made by [prosecution witness] Bobby Joe Williams implicating Plaintiff in the offenses

were false and the product of torture at the hands of Defendants Byrne and Dignan,”

and that “their abuse of Bobby Joe Williams was part of a pattern and practice of

racially motivated police torture at Area 2, which they perpetrated and supervised.”

(Doc. 63, ¶ 77).

Plaintiff’s Monell claim in turn alleges that the City maintained policies, practices,

and customs of covering up, suppressing, and otherwise obstructing justice in police

torture cases, particularly a pattern and practice of torture at Area 2 allegedly well known

to various City officials, including former Mayor Daley. (Id. at ¶¶ 103-04). By Order dated

January 9, 2017, Judge Bucklo granted the City’s motion to bifurcate and stay the Monell

claim against it, while the claims against the Individual Defendants proceeded through

discovery and trial. (Doc. 148). Plaintiff thus seeks former Mayor Daley’s deposition

solely in connection with Plaintiff’s “non-Monell” claims against the Individual Defendants,

and not his Monell claim against the City. (Doc. 175, ¶¶ 13-20, arguing relevance of

Daley’s deposition to Plaintiff’s non-Monell claims; Doc. 312, ¶¶ 8, 24 (same)).

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DISCUSSION

Both sides acknowledge that, pursuant to Fed. R. Civ. P. 26(c) and upon a showing

of “good cause,” the Court may issue a protective order precluding the deposition of a

non-party, in order to protect him from “undue burden.” (Doc. 297, at 2; Doc. 312, ¶ 3).

In support of his request for a protective order precluding his deposition here, Mr. Daley

argues that “the deposition is unnecessary, plaintiff has failed to articulate a legitimate

reason for seeking the deposition, and the deposition would pose an undue hardship on

Mr. Daley.” (Doc. 297, at 2). Mr. Daley further argues that, in determining whether “good

cause” for such a protective order exists, the Seventh Circuit “follows a well-established

rule that high-level government officials should not be subjected to discovery unless such

discovery is necessary to prevent injustice and cannot be obtained through other means,”

and that a party seeking to depose such an official must therefore demonstrate a “real

need” for the deposition. (Doc. 297, at 3, citing Stagman v. Ryan, 176 F.3d 986, 994-95

(7th Cir. 1999); Chicago Reader, Inc. v. Sheahan, 192 F.R.D. 586, 587 (N.D. Ill. 2000)).1

“Plaintiff does not dispute the general rule that officials elected to important public

office should not ordinarily be required to sit for depositions regarding matters in which

they have not had direct or personal involvement.” (Doc. 312, ¶ 4). But, Plaintiff argues,

this “general rule” has less force where (as here) the deponent is a former public official,

and in any event, “must give way where the party seeking the deposition can show that

the official deposition would serve a useful purpose because it could lead to admissible

testimony in the case.” (Id. at ¶¶ 4-5). Plaintiff contends that Mr. Daley’s deposition could

1 Although Mr. Daley’s Motion for Protective Order also cites an “undisclosed medical situation”
as further reason to preclude his deposition, the Court directed the parties to address first the
threshold issue of whether his deposition is needed at this stage of the case before turning to any
medical issues which have not yet been disclosed to Plaintiff. (Doc. 312, ¶ 2; Doc. 315, at 2).
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lead to admissible evidence in this case because Mr. Daley was the Cook County State’s

Attorney six months prior to Plaintiff’s arrest, when the defendant in an unrelated case,

Andrew Wilson, “was arrested, interrogated, tortured, tried, and convicted by Defendant

Burge and other Area 2 officers.” (Doc. 175, ¶¶ 1-3). According to Plaintiff, this

information is relevant to his due process, Brady, and conspiracy claims and “may be

admissible at Plaintiff’s trial pursuant to Fed. R. Evid. 404(b),” and Mr. Daley had personal

knowledge of Andrew Wilson’s allegations of abuse at Area 2 during the relevant time

frame. (Id.). This is evident, Plaintiff says, because the May 2017 deposition of former

Superintendent Richard Brzeczek established that in February 1982, he sent a letter to

then State’s Attorney Daley forwarding correspondence that Brzeczek had received

earlier that month regarding Mr. Wilson’s allegations. (Id. at ¶¶ 11, 16 and Ex. E).

Plaintiff’s chief authority in support of compelling Mr. Daley’s deposition is Hobley

v. Burge, No. 03 C 3678, 2007 WL 551569, at *2 (N.D. Ill. Feb. 22, 2007), where the

plaintiff (Hobley) similarly sought Mr. Daley’s deposition regarding Andrew Wilson’s 1982

allegations of abuse at Area 2 based on former Superintendent Brzeczek’s February 1982

letter to then State’s Attorney Daley regarding Mr. Wilson’s allegations. But while Plaintiff

describes Hobley as “a decision that ordered then-Mayor Daley to testify in another Burge

torture case” (Doc. 312, ¶ 4), Plaintiff neglects to mention that Mr. Daley’s deposition was

sought and compelled in Hobley for information related to the plaintiff’s Monell claim

against the City – particularly regarding whether, as the State’s Attorney during the time

in question, Mr. Daley had information regarding a pattern of abuse of suspects at Area

2 by Defendant Burge and other Chicago police “so well-established as to constitute a

custom or usage with the force of law, which may give rise to liability on behalf of the

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City.” 2007 WL 551569, at *2. Hobley thus provides little support for Plaintiff’s argument

here that Mr. Daley’s deposition should be compelled for Plaintiff’s non-Monell claims.2

Plaintiff’s other authorities are no more helpful. For instance, Alliance to end

Repression v. Rochford, 75 F.R.D. 428, 429 (N.D. Ill. 1976), required Mr. Daley’s

deposition because he was a named defendant and allegedly “an active participant” in

the illegal activity at issue. As noted above, Mr. Daley is not such a defendant here. And

Plaintiff’s other authorities merely acknowledge the higher standard for a public official’s

deposition that Plaintiff insists should not apply here – that such a deposition may be

compelled where the official has relevant “personal knowledge” that “cannot be obtained

from any other source.” Payne v. Dist. of. Columbia, 279 F.R.D. 1, 8 (D.D.C. 2011);

Mansourian v. Bd. of Regents of Univ. of Cal. at Davis, CIV S-03-2591, 2007 WL

4557104, at *3 (E.D. Cal. Dec. 21, 2007) (allowing deposition of University Chancellor

regarding personal knowledge of his actions and communications relevant to plaintiff’s

2 Also citing Hobley, Plaintiff further argues that Daley’s deposition should be compelled
because it is “likely to produce or lead to admissible evidence.” (Doc. 312, ¶ 4). But in addition
to Hobley’s other distinctions, that decision explicitly relied upon the prior version of Fed. R. Civ.
P. 26(b)(1) and its allowance of discovery “reasonably calculated to lead to the discovery of
admissible evidence.” 2007 WL 551569, at *2. Counsel is reminded that the December 1, 2015
amendments to the Federal Rules of Civil Procedure removed the words “reasonably calculated
to lead to the discovery of admissible evidence” from Rule 26(b)(1). According to the Advisory
Notes, the deleted words were being “incorrectly used to describe the scope of discovery” and
the change was “designed to curtail reliance on the ‘reasonably calculated’ phrase to expand
discovery beyond the permitted scope.” Under Amended Rule 26(b)(1), the scope of discovery
is defined as follows:

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, considering the
importance of the issues at stake in the action, the amount in controversy, the parties’
relative access to relevant information, the parties’ resources, the importance of the
discovery in resolving the issues, and whether the burden or expense of the proposed
discovery outweighs its likely benefit. Information within this scope of discovery need not
be admissible in evidence to be discoverable.

Proposed Amendments to Fed. R. Civ. P., 305 F.R.D. 457, 521 (2015).

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ineffective accommodation claim, where any other source “would be a poor substitute for

[that witness’s] testimony regarding his own personal knowledge and actions”).

Plaintiff attempts two arguments that Mr. Daley has personal and singular

knowledge relevant to Plaintiff’s non-Monell claims, but both are unavailing. First, Plaintiff

argues that Mr. Daley’s alleged knowledge of Andrew Wilson’s 1982 allegations of abuse

at Area 2 “is relevant and likely to lead to admissible evidence because an investigation

[of those allegations] would have certainly put the City and prosecutors on notice of

trouble at Area 2 immediately prior to Plaintiff’s arrest.” (Doc. 312, ¶¶ 23-24). According

to Plaintiff, the results of any such investigation “are highly relevant to Plaintiff’s claims

that the City withheld information from Plaintiff’s counsel about known torture at Area 2”

and to the City’s claim “that at the time of Plaintiff’s arrest and prosecution, it had no

knowledge about a pattern of abuse at Area 2 and therefore could not have disclosed

such information.” (Id.). But as Plaintiff’s brief acknowledges, his non-Monell claims in

this action allege that the Individual Defendants – not the City – withheld this information

from Plaintiff’s defense attorneys, prosecutors, and the court. (Id. at ¶¶ 12-14, citing Doc.

63, ¶¶ 77, 79). And while Plaintiff’s Amended Complaint does allege knowledge and

concealment by former Mayor Daley and other City personnel of police abuse at Area 2,

it does so only in connection with Plaintiff’s Monell claim (which is stayed), not his claims

against the Individual Defendants. (Doc. 63, ¶ 104). Thus, none of these allegations

supports Plaintiff’s need for Mr. Daley’s deposition for his non-Monell claims.

Plaintiff’s second relevance argument takes a different tack but fares no better.

Conceding that his non-Monell claims allege that the Individual Defendants (not the City)

concealed evidence of abuse at Area 2 from Plaintiff and prosecutors, Plaintiff posits that

those Defendants “are likely to argue” in defense of that claim that “the Cook County
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State’s Attorney was aware of abuse at Area 2 at the time of Plaintiff’s arrest and

interrogation.” (Doc. 175, ¶ 19). Presumably, Plaintiff anticipates a defense that there

can be no Brady violation by police officers in failing to disclose to prosecutors information

already known to them. See Smith v. Burge, 222 F. Supp. 3d 669, 681 (N.D. Ill. 2016)

(“In other words, Defendants argue that because the State’s Attorney’s Office was aware

of the Area 2 torture as early as 1982, the prosecutors already knew the very Brady

material at issue in Plaintiff’s claim.”). According to Plaintiff, “[w]hat transpired during the

alleged investigation initiated by Mr. Daley could bear on this question.” (Doc. 175, ¶ 19).

But while Plaintiff’s assumes that Mr. Daley is the optimal witness to address “what

transpired” during that investigation because he “handled” it (id. at ¶ 12), the record

demonstrates that he is not. Rather, according to the deposition testimony of Richard

Devine (Daley’s First Assistant at the State’s Attorney’s Office), on which Plaintiff purports

to rely heavily, the issue of Mr. Wilson’s allegations of abuse at Area 2 “was referred to

Special Prosecutions which handled matters that related to allegations of police

misconduct.” (Doc. 175-1, at 39-44). Mr. Devine further explained that Special

Prosecutions was a division in the Cook County State’s Attorney’s Office, and that

Wilson’s abuse allegations were referred by former Assistant Cook County State’s

Attorney William Kunkle to (now former Judge) Frank DeBoni within that division. (Id.).

Plaintiff has thus failed to demonstrate that Mr. Daley knows what took place in the

investigation of Wilson’s allegations of abuse at Area 2, since that investigation was

reportedly conducted by others. Nor does the record suggest that Mr. Daley has any

other information regarding Mr. Wilson’s allegations or any investigation of them. To the

contrary, as even Plaintiff acknowledges, Mr. Daley’s June 2006 Sworn Statement to

Special Prosecutors conducting an Internal Investigation into allegations of abuse at Area

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2 explained that he had no specific recollection of the February 1982 letter advising him

of Wilson’s allegations or any investigation concerning them; Mr. Daley merely recalled

the process that would have been followed to refer that matter to the Special Prosecutions

Division of the Cook County State’s Attorney’s Office. (Doc. 312, ¶ 20, citing Doc. 312-5,

at 18-25, 34-38). And as Mr. Daley explains, his January 2006 statements to the Office

of the Special Prosecutor concerning Wilson’s allegations similarly explained that he had

no specific recollection of how that matter was handled and recalled simply the protocol

for referring it to the Special Prosecutions Division, and that “he probably was advised,

as time passed, that the Special Prosecutions Unit had contacted Wilson’s attorney and

had been thwarted in efforts to determine the actual basis” for his allegations. (Doc. 297,

¶ 12, citing Doc. 297-5). This was consistent with the deposition of Mr. Devine, which

likewise confirmed that Wilson’s defense attorneys refused to cooperate with any

investigation into his abuse allegations while his criminal matter was pending, leading the

Special Prosecutions Division to conclude that nothing could be done to investigate those

allegations at that time. (Doc. 297, ¶ 9, citing 297-4, at 42-43).

Thus, even assuming the results of any investigation into Wilson’s allegations of

abuse at Area 2 “could bear” on a potential Brady defense by the Individual Defendants

that such allegations were well known in the Cook County State’s Attorney’s Office (or

bear on any other issue in the case), it appears that Plaintiff has already discovered that

information. In any event, based on the record before it, this Court is not persuaded that

Mr. Daley is an appropriate witness to testify to what transpired in the investigation of the

Special Prosecutions Division. Moreover, to the extent Plaintiff seeks to discover whether

the allegations of abuse at Area 2 were, in fact, well known within the Cook County State’s

Attorney’s Office at the time of Plaintiff’s prosecution, he has already questioned several
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witnesses on that topic. While Mr. Devine explained that most people in the Office

became aware of the Wilson case “at some point,” (Doc. 175-1, at 60), even Plaintiff

acknowledges that two former Cook County State’s Attorneys (Ms. Bertina Lampkin and

Mr. Terrence Gillespie) each testified that they knew of no such allegations at the time of

Plaintiff’s prosecution. (Doc. 175, ¶ 19). Mr. Brzeczek’s deposition testimony (on which

Plaintiff also relies heavily) similarly indicates that he knew of no allegations of abuse at

Area 2 when he left his position as Chicago Police Superintendent in April 1983, other

than those concerning Mr. Wilson in February 1982. (Doc. 312-3, at 90-91). And again,

while Plaintiff may dispute Mr. Devine’s testimony or the testimony of the other three

witnesses, he has provided this Court with nothing to suggest that Mr. Daley is in a better

position to address whether the allegations of abuse at Area 2 were more widely known

in the Cook County State’s Attorney’s Office during that time.

Indeed, “Plaintiff agrees that Mr. Daley’s status as the Cook County State’s

Attorney in and of itself does not make his testimony relevant to Plaintiff’s claims,” and

insists that he “is not seeking to depose Mr. Daley merely because of his status as the

Cook County State’s Attorney nor does he seek to depose Daley merely to explore what

knowledge he had.” (Doc. 312, ¶ 11). Rather, Plaintiff claims that he “seeks to depose

Mr. Daley as a fact witness who is known to have direct and personal knowledge about

facts relevant to this case.” (Id). But as discussed above, the record that Plaintiff has

provided this Court falls far short of establishing that Mr. Daley has any relevant direct

or personal knowledge, and instead rebuts that suggestion. Accordingly, without

considering Mr. Daley’s additional grounds for a protective order (see supra note 1), the

Court concludes that Plaintiff has failed to substantiate his need for Mr. Daley’s deposition

and Mr. Daley has shown good cause for a protective order precluding it.
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CONCLUSION

For the reasons stated above, Non-Party Richard M. Daley’s Motion for Protective

Order Quashing Plaintiff’s Deposition Subpoena (Doc. 297) is granted.

ENTER:

Dated: July 26, 2018 ___

SHEILA FINNEGAN
United States Magistrate Judge

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