Sanction
against firm reversed
By
David Ziemer
Wisconsin Law Journal
Jan.
18, 2006
| What
the court held Case:
Hobley v. Burge, No. 05-1367 Issue:
Can a law firm be sanctioned for not producing documents, when the firm is not
a party to the proceedings, and was never subpoenaed or ordered to produce them? Holding:
No. In the absence of a subpoena, the firm cannot be faulted for not producing
documents, even if the firm may have known that they were relevant to litigation. |
The Seventh
Circuit held on Jan. 9 that a law firm cannot be sanctioned for withholding documents
in discovery when those documents were neither subpoenaed, nor ordered to be produced
by the court.
Chicago
Police Lt. Jon Burge was fired from the police force in 1993 for allegedly torturing
a confession from a murder suspect. The law firm Jones Day represented the city
in the police board proceedings leading to Burge’s dismissal.
In
December 2002, a lawyer for the city notified Jones Day attorney June Ghezzi that
a special prosecutor was investigating allegations of torture by Chicago police,
and that a grand jury had subpoenaed documents from the board proceedings against
Burge.
Jones
Day identified 57 boxes of documents and sent all but 5 to the firm of Hinshaw
and Culbertson, the firm representing the City at that time, informing a Hinshaw
attorney that it considered the five other boxes privileged under the attorney
work-product doctrine.
In
2003, Madison Hobley was pardoned by the governor after having spent 16 years
on Illinois’ death row for murder. In May of that year, he filed a Section
1983 suit against Lt. Burge, the City of Chicago, and others, claiming that Burge
and several subordinates had tortured and framed him for the murders that led
to his convictions.
During
discovery, the City waived its claims to either attorney-client or work-product
privilege, and in January 2004, produced to Hobley the 52 boxes of documents in
its possession.
Although
the City knew Jones Day was still holding five boxes under a claim of privilege,
they made no mention of them to Hobley’s attorneys, nor did they inform Jones
Day about Hobley’s lawsuit.
In
March 2004, the City finally disclosed that Jones Day was holding some documents
under a privilege claim. The magistrate judge ordered that they be produced.
Jones
Day asked the magistrate to reconsider the order, filing a privilege log. Instead,
the magistrate found that Jones Day had withheld the documents without a proper
notice of privilege, and imposed waiver of the privilege as a sanction, ordering
that the five boxes be produced to Hobley’s attorneys.
Jones
Day appealed, but the district court affirmed. The Seventh Circuit granted Jones
Day’s request for an interlocutory appeal, and reversed in a decision by
Judge Terence T. Evans.
The
court rejected the magistrate judge’s conclusion that FRCP 34 authorized
the order, reasoning, “by its terms, Rule 34 applies only to parties. It
is the City, not Jones Day, that is the responsive party in this suit. And even
if Jones Day were the City’s current counsel, Rule 34 would not be the correct
discovery tool for gaining access to work product held by an attorney (cites omitted).”
The
magistrate had concluded that, for purposes of Rule 34, the City had “control”
of the documents, even though they were in the possession of Jones Day, and were
thus encompassed by Hobley’s requests.
Rejecting
this reasoning, the Seventh Circuit concluded, “The problem, though, is that
the City never sought to exercise control over the documents by asking Jones Day
to part with or make them available to Hobley. Moreover, since it was not representing
the City in this litigation, Jones Day was not looped into requests or orders
that encompassed documents it was holding. We don’t see how Jones Day can
be accused of behaving dilatorily toward discovery requests it never received.”
The magistrate
had also found that Jones Day was “subjectively aware” of the lawsuit,
and thus was obligated to come forward with its documents once it was asked to
start preparing a privilege log.
However,
the Seventh Circuit disagreed, finding that the request for the privilege log
cannot be equated to a discovery request or subpoena.
Finally,
the court rejected the magistrate’s conclusion that Jones Day was “subject
to a sort of inquiry notice,” concluding, “as Jones Day was a nonparty
and was not representing anyone, we are at a loss to understand why it should
have been expected to monitor the proceedings.”
The
court added, “The issue is not ‘What did Jones Day know and when did
they know it?’ Regardless of whether the firm was ‘subjectively aware’
of Hobley’s suit, there is no authority for the proposition that a nonparty
has an affirmative duty to learn about and inject itself into litigation simply
because it possesses information one of the parties might find useful.”
Accordingly,
the court vacated the sanctions order, and remanded the case, with directions
that, should Hobley subpoena the document’s the firm’s privilege claims
should be tested under the normal attorney work product procedures.
Click
here for Case Analysis.
David
Ziemer can be reached by email.
