United States District Court, E.D. Wisconsin
VERLESHIA S. ELLIS, Plaintiff,
CITY OF MILWAUKEE, et al., Defendants.
DECISION AND ORDER
ADELMAN District Judge.
Verleshia Ellis has sued the City of Milwaukee, its chief of
police, and three individual police officers under 42 U.S.C.
§ 1983. She alleges that the individual officers
violated her rights under the Fourth and Fourteenth
Amendments during the course of an arrest and search of her
person, and that the City and the Chief of Police are liable
for the violation under Monell v. Department of Social
Services, 436 U.S. 658 (1978). Before me now is the
defendants' motion to compel the plaintiff to produce a
diagram prepared by a witness at the request of the
plaintiff's attorney. The plaintiff contends that the
diagram is protected by the attorney work-product doctrine.
to the allegations of the complaint, on the night of
September 21, 2011, one of the officer defendants ordered the
plaintiff out of a parked car, conducted a pat-down search of
her person, and then handcuffed her and ordered her to wait
on a curb for the arrival of a female officer. When the
female officer arrived, she pulled the plaintiff's pants
down, placed her in the back of a squad car, and conducted a
search of her vagina and rectum. The plaintiff alleges that
this search was performed in front of members of the public.
The plaintiff contends that the initial seizure and pat-down
and the ensuing strip and body-cavity search violated her
rights under the Fourth Amendment.
obtained during discovery in this case shows that, on the
night the plaintiff was searched, Eddie Johnikin was in the
car with the plaintiff. Before the search, Johnikin exited
the car and went into a house, where the police arrested him.
After his arrest, the police placed Johnikin into the back of
a squad car for a period of time before driving him to the
police station for booking. According to Johnikin's
deposition testimony, he was taken away from the scene before
the female officer performed the body-cavity search of the
August 1, 2013, Jeanette Corbett, an attorney representing
the plaintiff, interviewed Johnikin. As part of this
interview, Corbett provided Johnikin with a blank piece of
paper and asked him to sketch a diagram of the scene where he
was arrested and the plaintiff was ultimately searched.
Corbett states that she asked Johnikin to draw "some of
the specific items that [she] thought could be important to
[her] analysis of [the plaintiff's] claims." Corbett
Decl. ¶ 5. Johnikin complied with Corbett's request.
After Johnikin returned the diagram to her, Corbett wrote on
the paper and labelled parts of it. Corbett placed the
diagram in her law firm's file relating to the
plaintiff's case, where it has remained confidential.
March 18, 2016, the defendants took Johnikin's
deposition. At the deposition, defendants' counsel asked
Johnikin to prepare a diagram of the scene, and Johnikin
complied. See Decl. of James End, Ex. 1. Also at the
deposition, defendants' counsel learned that Johnikin had
made a diagram during his interview with Corbett. Upon
learning of that diagram, the defendants requested that the
plaintiff produce it. The plaintiff and her counsel refused
to do so, claiming that it is protected by the attorney
work-product doctrine. The defendants then filed the present
motion to compel.
work-product doctrine is codified at Federal Rule of Civil
Procedure 26(b)(3)(A), which states that, "[o]rdinarily,
a party may not discover documents and tangible things that
are prepared in anticipation of litigation or for trial by or
for another party or its representative (including the other
party's attorney . . .)." However, materials
protected by the work-product doctrine may be discovered if
"the party shows that it has substantial need for the
materials to prepare its case and cannot, without undue
hardship, obtain their substantial equivalent by other
means." Fed.R.Civ.P. 26(b)(3)(A)(ii). "The
work-product doctrine is designed to serve dual purposes: (1)
to protect an attorney's thought processes and mental
impressions against disclosure; and (2) to limit the
circumstances in which attorneys may piggyback on the
fact-finding investigation of their more diligent
counterparts." Sandra T.E. v. South Berwyn Sch.
Dist. 100, 600 F.3d 612, 621-22 (7th Cir. 2009).
moving to compel production of the diagram, the defendants
first contend that the diagram is not protected by the
work-product doctrine because the diagram is a "purely
factual document created wholly by a third-party
witness." Mot. to Compel at 2. I disagree. Johnikin
prepared the diagram at the request of the plaintiff's
counsel during an interview that counsel conducted in
anticipation of the present litigation. The diagram thus
satisfies the three elements of the work-product doctrine: it
is (1) a document or tangible thing, (2) prepared in
anticipation of litigation or for trial, (3) by or for the
opposing party or her attorney. The diagram would satisfy
these elements, and thus be protected by the work-product
doctrine, regardless of whether the plaintiff's attorney
herself wrote on the diagram. Indeed, because Johnikin
prepared the diagram in response to the attorney's
questions, it may be possible to draw inferences about the
attorney's thought processes from the diagram, even
though the attorney herself did not write on the diagram.
See 2 Edna Selan Epstein, The Attorney-Client
Privilege and the Work-Product Doctrine 817 (5th ed.
2007) (noting that it may be possible "to infer the
direction of the attorney's thinking" even from a
verbatim transcript of a witness's statement). Here,
however, the plaintiff's attorney herself wrote on the
drawing and labeled parts of it, which increases the degree
to which the diagram discloses the attorney's thought
defendants next contend that even if the diagram is protected
by the work-product doctrine, they have shown that they have
a substantial need for the diagram. However, there were many
witnesses besides Johnikin at the scene, and the defendants
were able to obtain diagrams from these witnesses.
See End Decl. Exs. 2- 5. The defendants have not
explained why the layout of the scene, as it was perceived by
Johnikin specifically, is so significant.
even if I could conclude that the defendants have a
substantial need for Johnikin's perception of the scene,
the defendants have failed to identify a substantial need for
the specific diagram that Johnikin prepared for
plaintiff's counsel. As noted, the defendants obtained
their own diagram from Johnikin when they took his
deposition. The defendants point out that Johnikin stated at
his deposition that, due to a head injury he sustained in an
assault and robbery in 1991, he has a poor memory and often
cannot recall things. See Decl. of Patrick McClain,
Ex. A at 12-24. However, so far as it appears from the
excerpts from Johnikin's deposition on file with the
court, Johnikin did not have any difficulty recalling the
location of the items that defendants' counsel asked him
to draw. See End Decl. Ex. 1 at 67-69. Moreover,
because Johnikin sustained the injury that caused his memory
problems in 1991, the diagram he prepared at the request of
plaintiff's counsel is not any less affected by his
memory problems than the diagram he prepared at his
deposition. It is true that over time a witness's memory
may fade, and that because the diagram Johnikin prepared for
plaintiff's counsel was made two years before the diagram
the defendants obtained at his deposition, there is some
possibility that the earlier diagram is more accurate. But
the mere possibility of a faded memory is not sufficient to
overcome work-product protections. See D.O.H. v. Lake
Central Sch. Corp., No. 2:11-cv-430, 2015 WL 1538804, at
*13 (N.D. Ind. April 7, 2015). And by the time
plaintiff's counsel interviewed Johnikin, nearly two
years had passed since the relevant events occurred. Thus,
the plaintiff's diagram was not made while the events
were fresh in Johnikin's mind.
although the defendants have not suggested that they need the
work-product diagram for impeachment purposes, I note that
the Seventh Circuit is "extremely reluctant to allow
discovery of attorney work product ...