Prince v. Kato
| Decision Date | 28 December 2020 |
| Docket Number | Case No. 18 C 2952 |
| Parties | PATRICK PRINCE, Plaintiff, v. KRISTON KATO, et al. Defendants. |
| Court | U.S. District Court — Northern District of Illinois |
MEMORANDUM OPINION AND ORDER
Two discovery motions are before the Court in this action alleging wrongful conviction. Defendants seek to enforce a subpoena for Plaintiff's recorded Illinois Department of Corrections ("IDOC") calls, which may contain relevant information about this case. Plaintiff moves to compel certain communications by defense counsel regarding a new transcript of a motion to suppress hearing in the underlying criminal proceedings that occurred in 1994, and which Plaintiff claims has now been altered to provide a different answer to an important question. Both motions have been fully briefed. For the reasons that follow, Defendants' motion [239] is granted in part and denied without prejudice in part and Plaintiff's motion [242] is granted in part and denied without prejudice in part.
This Section 1983 action arises from the arrest, prosecution, and conviction of Plaintiff Patrick Prince for the August 28, 1991 murder of Edward Porter. Cook County Judge Thaddeus Wilson vacated Prince's conviction and granted him a new trial on April 26, 2017. On May 16, 2017, the Cook County State's Attorney dropped all charges against Prince. In the present action, Prince claims the individual Area 4 police officer defendants coerced him into falsely confessing, fabricated evidence, and withheld exculpatory evidence. He alleges that this misconduct led to his wrongful conviction for a murder he did not commit, causing him to spend more than 25 years incarcerated. In addition to his claims against the individual police officer defendants, Prince filed a claim against the City of Chicago under Monell v. Department of Social Services, 436 U.S. 658 (1978), asserting the Chicago Police Department had certain policies and customs that caused the individual police officers' constitutional violations. As a result of Prince's conviction, he was in IDOC custody from approximately February 1995 until his release in May 2017.
The parties are actively engaged in discovery. They have exchanged voluminous document productions and have issued and answered written discovery requests. Depositions of the parties and approximately thirty witness depositions have been completed. Approximately five depositions are scheduled for January 2021. The parties have reached an impasse on two discovery issues—Prince's objection to IDOC's production of recorded phone calls made by Prince from 2008 to 2013 and Defendants' attorney work product objection to Prince's discovery requests regarding a new version of the transcript of the motion to suppress hearing held on June 6, 1994. The Court considers each motion in turn below.
Defendants seek an order enforcing its subpoena to IDOC for production of recorded phone calls Prince made from 2008 to 2013. This is Defendants' second motion seeking production of recorded phone calls Prince made while in custody. Defendants' initial motion arose from Prince's refusal to produce 410 phone calls he made from March 2013 to March 2017. Prince produced a phone log provided by IDOC but withheld the recorded phone calls on the bases that the subpoena was overbroad and the recorded phone calls between Prince and his attorney were protected from disclosure by the attorney-client privilege. In deciding Defendants' motion to compel productionof the 2013-2017 phone calls, the Court ordered Prince to: (1) produce all of his phone calls with witness Ozias Israel who had been deposed in this case (at least 117 calls); (2) identify the unidentified individuals to whom 141 calls were made; and (3) produce a privilege log of any alleged privileged conversations Prince had with his attorneys. See Doc. 156. Thereafter, Prince produced all 410 recorded IDOC phone calls from March 2013 to March 2017 to Defendants and also provided an index identifying some of the unidentified callers.
Defendants state that they recently became aware that IDOC may have additional recorded phone calls of Prince that were responsive to Defendants' subpoena. At the request of IDOC, Defendants issued a second subpoena to IDOC in approximately June 2020. Upon Defendants' request, IDOC provided a second phone log of Prince's phone calls, listing 569 phone calls from December 20, 2008 to March 26, 2013. According to Defendants, IDOC has indicated it can easily produce the recorded phone calls with no burden to IDOC. After Defendants produced the second phone log of Prince's IDOC calls, Prince objected to Defendants obtaining any of Prince's recorded IDOC phone calls from 2008 to 2013.
In their current motion, Defendants once again ask for the Court's assistance in obtaining Prince's recorded IDOC calls. Defendants contend that during the recorded IDOC calls which have already been produced, Prince discussed his criminal case, his investigation into the murder of Edward Porter, and his experience in prison with nearly every single individual he spoke to on the phone from 2013 to 2017. Given the content of the already produced recorded phone calls, Defendants believe it is very likely that Prince was having similar discussions during the earlier time frame of the additional recorded phone calls. Prince agrees that the Court's prior order requires production of calls he made to individuals he has identified as damages witness (Mary Prince, Ozias Israel, Bruce Prince, Larhonda Prince, Georgia Cox, Lacerise Prince, and JamesJones). Doc. 246 at 2, 8. This represents about 156 phone calls of the 569 phone calls now at issue. Prince objects to production of any of the remaining calls, arguing that Defendants are attempting to "embarrass and harass [him]." Id. at 2.
As a threshold matter, Defendants argue that Prince waived any further objection to the production of the 2008 to 2013 calls by producing all of his IDOC phone calls from the 2013-2017 period without objection after the Court's October 10, 2019 ruling. To support this assertion, Defendants point out that the subpoena which resulted in the production of the 2013 to 2017 calls sought the production of all of Prince's phone calls that were recorded by IDOC during Prince's incarceration. According to Defendants, "[g]iven this express waiver of any previously asserted objections, any objection to the production of additional materials responsive to Defendants' subpoena is untimely and waived." Doc. 239 at 6.1
The Court finds no waiver here. Waiver is the "intentional relinquishment or abandonment of a known right." Henry v. Hulett, 969 F.3d 769, 786 (7th Cir. 2020) (en banc); United States v. Picardi, 950 F.3d 469, 474 (7th Cir. 2020) (). Prince could not have waived a right to object to recorded phone calls he did not know existed. Prince was unaware of the existence of a second batch of recorded phone calls when he produced the remainder of the first batch of recorded phone calls on November 13, 2019. Until the week of July 27, 2020, Prince did not know that recorded phone calls from 2008-2013 existed and his objections were timely made the next week on August 7, 2020. Docs. 239-9, 239-10. Prince did not know of the existence of the 2008 to 2013 recorded phone calls because IDOC onlyproduced recorded phone calls Prince made from March 2013 to March 2017 in response to a subpoena that sought production of all recorded phones during the entire duration of Prince's custody in IDOC. Under these circumstances, Prince could not have reasonably understood that he was waiving a right to object to production of recorded phone calls from December 20, 2008 to March 16, 2013. Defendants' argument that Prince of course knew that he made phone calls between 2008 to 2013 is misplaced. Whether Prince knew he made phone calls between 2008 to 2013 and whether he knew that recorded phone calls between 2008 to 2013 exist and were preserved, however, are two different issues. Waiver of Prince's right to object to the production of recorded phone calls is based on the existence of the recorded phone calls. The fact that Prince was aware that he made phone calls between 2008 to 2013 is irrelevant here. Because Prince did not know that the 2008 to 2013 recorded phone calls exist and could not have known that IDOC had possession of additional recorded phone calls at the time of his first production, Defendants' claim of waiver fails.2
Prince further objects to the production of 71 calls made to his attorney Evelyn Baniewicz, a public defender appointed to represent him in post-conviction proceedings, between 2008 to 2013 on the ground that the attorney-client privilege protects those recorded phone calls. UnderRule 45(d)(3)(A), a court must quash or modify a subpoena if it "requires disclosure of privileged or other protected matter, if no exception or waiver applies." Fed. R. Civ. P. 45(d)(3)(A)(iii). "Although the Seventh Circuit has not yet tackled the issue of whether the attorney-client privilege protects recorded prison telephone calls, several courts in this circuit have held that such communications are not privileged because the inmates in question knew their conversations were being recorded and had no reasonable expectation of privacy." Bishop v. White, 2020 WL 6149567, at *8 (N.D. Ill. Oct. 20, 2020) (); see also Pursley v. City of Rockford, 2020 WL 1433827, at *5 (March 24, 2020); Simon v. Northwestern University, 2017 WL 66818, at *4-6 (N.D. Ill. Jan. 6, 2017). "It cannot be that [an inmate] intended his attorney phone calls to be confidential if he knew his phone calls with his attorneys were recorded." Pursley, 2020 WL 1433827, at *5.
Here, Prince does not dispute that he knew his phone calls with Baniewicz were being recorded....
To continue reading
Request your trial