IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS

COUNTY DEPARTMENT, CRIMINAL DIVISION

PEOPLE OF THE STATE OF ILLINOIS,

vs.
JASON VAN DYKE,

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No: 15 CR 20622
Hon. Vincent Gaughan

MOTION BY THE CITY OF CHICAGO FOR A PROTECTIVE ORDER AND A CLAW

BACK FOLLOWING THE COMPLETION OF THIS CASE
The City of Chicago, by and through its undersigned attorney, herein requests, pursuant
to Illinois Supreme Court Rules 201(c)(1) and 201(p), that the Court enter a Protective Order and
a Claw Back order requiring Daniel Herbert, defense counsel for Jason Van Dyke, and Joseph
McMahon, Special Prosecutor, to refrain from dissemination of the emails and attachments of
the Independent Police Review Authority (IPRA) and the Chicago Police Department (CPD)
produced to this Court by the City of Chicago Office of the Inspector General (OIG) pursuant
to subpoena, to notify the City and afford IPRA and/or CPD an opportunity to assert their
interests should either party seek to introduce any of the emails or attachments at trial, and to
turn over to IPRA and CPD any and all originals and copies of the emails and attachments
following the completion of this case, including any appellate proceedings. In support of this
Motion, the City states as follows:
FACTS
1.

Under case number 15-0564, regarding its investigation of the shooting of Laquan

McDonald, the OIG requested emails from CPD that are stored on CPDs email server based on
a set of search terms provided by OIG. The request encompassed emails involving IPRA

personnel as well as CPD personnel because emails for personnel of both City departments are
maintained on the same email server, which is managed by CPD.
2.

In response to the request for emails, CPD produced 115,535 emails (and any

attachments) from the email accounts of IPRA personnel and 124,655 emails (and any
attachments) from the email accounts of CPD personnel. Due to the broad nature of the search
terms provided by the OIG, which CPD used to guide its searches, the vast majority of the emails
and attachments produced to the OIG are not relevant to the Laquan McDonald shooting.
3.

Because the OIGs request for emails was made pursuant to an ongoing OIG

investigation, the request was deemed confidential, and therefore CPD did not inform IPRA that
it was releasing IPRA personnels emails and attachments to the OIG.
4.

CPD understood that the OIG would use a software application to screen the

IPRA and CPD personnels emails for attorney-client privileged and work-product protected
materials, redact or segregate any materials that the OIG determined to be privileged or
protected, and return all materials to CPD when they were no longer needed by the OIG.
5.

Some of the emails and attachments, aside from being irrelevant to the Laquan

McDonald shooting, contain attorney-client privileged communications between IPRAs

employees and attorneys for IPRA and between CPDs employees and attorneys for CPD, as
well as attorney work product. In addition, some of the emails and attachments materials contain
personal information that ordinarily would be redacted prior to being produced under these
circumstances.
6.

Upon receipt of a subpoena issued in the above-captioned case for a copy of the

entire file with all attachments including any and all notes, records, reports, statements,
affidavits, photos, to-from-reports, recordings and transcripts of all statements taken, memoranda

generated and prepared in connection with the shooting of Laquan McDonald by Chicago Police
Officer Jason Van Dyke on October 20, 2014, the OIG produced its investigatory file for case
number 15-0564 to this Court, including the IPRA and CPD emails and attachments that it
received from CPD.
7.

The OIG did not withhold the attorney-client privileged or work-product

protected materials prior to producing them to this Court.

8.

Pursuant to the discovery process in the above-captioned case, this Court turned

over copies of the OIGs investigatory file for case number 15-0564, which included the abovedescribed IPRA and CPD emails and attachments, to Mr. Herbert, defense counsel for Jason Van
Dyke, and Mr. McMahon, Special Prosecutor.
9.

Some IPRA and CPD emails and attachments, regarding subject matters

completely unrelated to the Laquan McDonald investigation, that contain attorney-client

privileged and work-product protected materials were produced to Mr. Herbert and Mr.
McMahon. In addition, some of the emails and attachments, which, again, are irrelevant to the
Laquan McDonald shooting, contain unredacted personal information.
10.

Since producing the emails and attachments to this Court, the OIG, in the course

of its ongoing investigation, has reviewed the IPRA emails and attachments for relevancy to the
Laquan McDonald shooting. On October 22, 2016, the OIG produced the subset of IPRA emails
and attachments that the OIG determined are relevant to the Laquan McDonald shooting to the
City of Chicagos Law Department to supplement the OIGs case file in the administrative
disciplinary proceedings against Mr. Van Dyke before the City of Chicagos Police Board. Prior
to that time, no IPRA emails had been released for purposes of the administrative disciplinary
proceedings.

11.

The City understands that the OIG plans to supplement its production to this

Court, as it has done twice before, by December 8, 2016. The OIGs supplemental production
will contain the subset of IPRA emails and attachments that the OIG identified as relevant to the
Laquan McDonald shooting.
12.

After IPRA and CPD learned of the OIGs disclosure of its personnels emails in

response to the subpoena, IPRA and CPD directed its counsel to review the emails and
attachments for attorney-client privileged communications and attorney work product, and to
seek a protective order over and/or to claw back privileged or protected materials.
13.

Pursuant to Illinois Supreme Court Rule 201(p), IPRAs counsel requested in

writing that Mr. Herbert and Mr. McMahon enter into a claw back agreement requiring them to
return, sequester, or destroy the IPRA emails and attachments that are irrelevant to the Laquan
McDonald shooting yet contain attorney-client privileged and work-product protected materials.1
IPRAs counsel further suggested that Mr. Herbert and Mr. McMahon accept the subset of IPRA
emails and attachments that are relevant to the Laquan McDonald shooting and that the OIG
intends to produce to this Court, in lieu of the IPRA emails and attachments previously produced
to them. Mr. Herbert and Mr. McMahon declined the request for a claw back agreement.
14.

In declining the request for a claw back agreement, Mr. Herbert and Mr.

McMahon expressed concerns that it would be burdensome to return materials that they have
already begun to review.
Rule 201(p) provides: If information inadvertently produced in discovery is subject to a claim
of privilege or of work-product protection, the party making the claim may notify any party that
received the information of the claim and the basis for it. After being notified, each receiving
party must promptly return, sequester, or destroy the specified information and any copies; must
not use or disclose the information until the claim is resolved; must take reasonable steps to
retrieve the information is the receiving party disclosed the information to third parties before
being notified; and may promptly present the information to the court under seal for a
determination of the claim. The producing party must also preserve the information until the
claim is resolved.
1

ARGUMENT
15.

Under the attorney-client privilege, [w]here legal advice of any kind is sought

from a lawyer in his or her capacity as a lawyer, the communications relating to that purpose,
made in confidence by the client, are protected from disclosure by the client or lawyer, unless the
privileged is waived. Center Partners, Ltd. v. Growth Head GP, LLC, 2012 IL 113107, 30.
Similarly, [t]he work product doctrine applies to documents prepared by either client or attorney
in anticipation of litigation or trial. Dalen v. Ozite Corp., 230 Ill. App. 3d, 18, 27 (2d Dist.
1992); see also Mattenson v. Baxter Healthcare Corp., 438 F.3d 763, 767-68 (7th Cir. 2006).
Absent waiver, such material is subject to discovery only if it does not contain or disclose the
theories, mental impressions, or litigation plans of the partys attorney. Center Partners, 2012
IL 113107, 29 (quoting Ill. S. Ct. R. 201(b)(2)).
16.

The documents at issue here involve communications between IPRAs employees

and its attorneys, and CPDs employees and its attorneys, related to the attorneys provision of
legal advice to their client. In addition, certain documents include attachments prepared by
counsel either in anticipation of litigation or for purposes of analyzing and preparing for a
pending lawsuit.2

Thus, absent waiver, the documents are protected by the attorney-client

privilege and/or are attorney work product.

17.

Under Illinois Rule of Evidence 502(b), if the disclosure of a communication or

information covered by the attorney-client privilege or work-product protection is made in an

Illinois proceeding or to an Illinois office or agency, the disclosure does not work as a waiver if
(1) the disclosure is inadvertent, (2) the holder of the privilege or protection took reasonable
2

To avoid waiving privilege, the City is not providing in this motion detail on the content of the
communications and the advice that was sought and/or provided. Should this Court wish to review either
a privilege log or the documents themselves, the City requests that it be allowed to tender these materials
under seal.

steps to prevent disclosure, and (3) the holder promptly took reasonable steps to rectify the error,
including, if applicable, following Supreme Court Rule 201(p). Illinois Rule of Evidence 502(b)
is modelled on Federal Rule of Evidence 502(b). And the explanatory note to Federal Rule of
Evidence 502 lists the following facts as relevant to determining whether inadvertent disclosure
is a waiver: the reasonableness of the precautions taken, the time taken to rectify the error, the
scope of the discovery, the extent of the disclosure and the overriding issue of fairness.
Explanatory Note on Fed. R. Evid. 502, Subdivision (b).

And it provides that [o]ther

considerations bearing on the reasonableness of a producing partys efforts include the number
of documents to be reviewed and the time constraints for production.

Id.

Finally, the

explanatory note provides that [d]epending on the circumstances, a party that uses advanced
analytical software applications and linguistic tools in screening for privilege and work product
may be found to have taken reasonable steps to prevent inadvertent disclosure. Id.
18.

Applying these criteria, CPDs disclosure of the IPRA and CPD emails to the OIG

did not operate as a waiver of attorney-client privilege and work-product protection. First, the
disclosure was inadvertent. CPD believed that OIG would use a software application to screen
the emails, redact or segregate any attorney-client privileged or work-product protected
materials, and return the materials to CPD when they were no longer needed by the OIG.
Moreover, IPRA did not consent to the disclosure to OIG of its custodians emails and, in fact,
was unaware until recently that they had been disclosed. And OIGs status as an independent
investigatory body and its need to produce its entire investigatory file in case number 15-0564 in
response to the subpoena in People v. Van Dyke hampered the ability of IPRA and CPD to assert
their interests in preventing disclosure of their privileged and protected materials.

19.

Second, IPRA and CPD took reasonable steps to prevent the disclosure. The

explanatory note to Federal Rule of Evidence 502(b) (which, again, is the model for Illinois Rule
of Evidence 502(b)) states that the number of documents to be reviewed and the time constraints
for production bear on the reasonableness of a producing partys efforts, and, in addition, that the
use of a software application to screen for privilege or work product may warrant a finding that
the party took reasonable steps to prevent inadvertent disclosure. Here, it was reasonable to rely
on CPDs understanding that the OIG would use its software application to screen for privilege
and work product, redact or segregate privileged or protected materials, and return the materials
to CPD when they were no longer needed, to protect against the disclosure of attorney-client
privileged or work-product protected materials.
20.

Third, IPRA and CPD promptly took reasonable steps to rectify the error,

including by following Supreme Court Rule 201(p). After IPRA and CPD learned that its
personnels emails had been disclosed in these proceedings, they promptly directed their counsel
to identify privileged and protected materials; to obtain a claw back agreement from Mr. Herbert
and Mr. McMahon; and, when that failed, to file this motion. Given the large volume of
documents at issue, this was a time-consuming process, and it was accomplished as quickly as
possible.
21.

Finally, the explanatory note to Federal Rule of Evidence 502(b) specifies that

the overriding issue of fairness must be considered when determining whether inadvertent
disclosure is a waiver. Here, the fact that the subject matter of the privileged and protected
materials for which a protective order and claw back are sought have nothing to do with the
Laquan McDonald shooting, as well as that IPRAs privileged and protected materials were

produced without its knowledge, demonstrates that fairness requires that the relief requested by
IPRA and CPD be allowed.
22.

Illinois Supreme Court Rule 201(c)(1), which is entitled protective orders,

provides that [t]he Court may at any time on its own initiative, or on motion of any party or
witness, enter a protective order as justice requires, denying, limiting, conditioning, or regulating
discovery to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or
oppression.
23.

Because Mr. Herbert and Mr. McMahon declined the request that they enter into a

claw back agreement based on concerns that it would be burdensome to return or destroy
materials that they have already begun to review, the City does not request that any materials be
returned or destroyed at this time although the City believes such relief is justified under Rule
201(p), which requires a party, after having been notified that it received information
inadvertently produced in discovery that is subject to a claim of privilege or work-product
protection, to promptly return, sequester, or destroy the specified information and any copies.
Ill. S. Ct. R. 201(p). Instead, to accommodate the concerns expressed by Mr. Herbert and Mr.
McMahon, the City seeks, pursuant to Illinois Supreme Court Rule 201(c)(1), a protective order
directing Mr. Herbert and Mr. McMahon to refrain from dissemination of the emails and
attachments produced by OIG pursuant to subpoena. The City further requests that if either party
should wish to introduce any of the CPD or IPRA emails or attachments at trial which is
unlikely, given that the vast majority of those materials are irrelevant to the McDonald matter
that it be notified so that IPRA and/or CPD have an opportunity to assert their interests. Lastly,
pursuant to Illinois Supreme Court Rule 201(p), the City seeks a claw back order requiring Mr.
Herbert and Mr. McMahon to turn over to IPRA and CPD any and all originals and copies of the

emails and attachments following the completion of this case, including all appellate
proceedings.
WHEREFORE, the City respectfully requests that this Honorable Court enter a
Protective Order and a Claw Back Order requiring Mr. Herbert and Mr. McMahon to refrain
from dissemination of the IPRA and CPD custodians emails and attachments produced by the
OIG to this Court, to notify the City and afford IPRA and/or CPD an opportunity to assert their
interests should either party seek to introduce any of the emails or attachments at trial, and to
turn over to IPRA and CPD at the completion of this case, including any appellate proceedings,
any and all originals and copies of the emails and attachments, and such further and additional
relief as the Court deems just and proper.

Respectfully Submitted,
Stephen R. Patton, Corporation Counsel
of the City of Chicago
By:

_________________________
Lisette Mojica, City Prosecutor
30 N. LaSalle St., Suite 1720
Chicago, Illinois 60602
312/744-2816