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March 6, 2026 Get Citation Alerts Download PDF Add Note

James Marshall v. City of Chicago, et al.

District Court, N.D. Illinois

• Citations: None known
• Docket Number: 1:21-cv-00694

• Precedential Status: Unknown Status

• Opinion

• Authorities (14)

• Cited By (0)

• Summaries (0)

• Similar Cases (90)

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Trial Court Document

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

JAMES MARSHALL, )

)

Plaintiff, ) Case No. 1:21-cv-00694

v. )

) Judge Jeremy C. Daniel

CITY OF CHICAGO, et al., ) Magistrate Judge Jeannice W. Appenteng

)

Defendants. )

          MEMORANDUM OPINION AND ORDER                               

Plaintiff James Marshall filed this civil rights lawsuit alleging that he served 

30 years in prison for a sexual assault and murder that he did not commit. He
claims that police officers under the command of Jon Burge tortured him at Area 3
in Chicago and coerced him into confessing to the crimes. Currently before the
Court are plaintiff’s motion for protective order relating to privileged documents
that were inadvertently produced by the Office of the Cook County Public Defender
[145], and defendants’ cross-motion to compel production of those documents [158].
For reasons stated here, plaintiff’s motion is granted and defendants’ cross-motion
is granted in part and denied in part.

BACKGROUND1

The Office of the Cook County Public Defender (the “CCPD”) represented
plaintiff in the criminal case underlying the instant case. During discovery in this
case, and in response to a document subpoena from defendants, the CCPD

1 For ease of reference, page numbers for all briefs and exhibits are drawn from the
CM/ECF docket entries at the top of the filed document.

inadvertently produced documents relating to work performed by a clinical social
worker that the CCPD retained to develop mitigation evidence in plaintiff’s criminal
case.2 Those documents included the social worker’s notes reflecting interviews she

conducted with plaintiff and other mitigation witnesses (the “social worker
documents”).

Plaintiff argues that the social worker documents are privileged and should
be destroyed. Defendants argue that plaintiff has waived any privilege by failing to
produce a proper privilege log. Defendants also contend that plaintiff expressly or
impliedly waived the attorney-client privilege, and that they have a substantial

need for information protected by the work product privilege. As discussed below,
the Court is largely unpersuaded by defendants’ arguments. Accordingly,

defendants must provide plaintiff with written certification that all the
inadvertently produced social worker documents have been collected and destroyed.
Further, as the custodian of the documents defendants seek to compel, the CCPD
shall produce to defendants an appropriate privilege log and unredacted copies of
any portion(s) of the documents that reflect material related to plaintiff’s Brady

claim as set forth in this opinion.

2 Plaintiff’s counsel began developing mitigation evidence in response to the State’s
assertion that it would seek the death penalty. Dkt. 167 at 6. Since the State ultimately
decided not to pursue a death sentence, the social worker never prepared a final report, she
did not testify, and her work was never produced in the underlying criminal case. Id.
DISCUSSION

I. Plaintiff’s Motion for Protective Order

In July 2025, defendants received the mistakenly-produced social worker

documents from CCPD, Bates-stamped them, and provided them to plaintiff, among
others. Dkt. 145 at 4; Dkt. 159-9; Dkt. 159-10 at 4. On July 22, 2025, plaintiff
emailed defendants explaining that the production by the CCPD was inadvertent
and demanded defendants return, sequester and/or destroy the documents and not
use or disclose their contents. Dkt. 145-4. A CCPD representative likewise emailed
defendants confirming the production was inadvertent and improper. Dkt. 145-5.

Defendants acknowledged plaintiff’s claw-back request and stated, “we have 

been sequestering” the materials. Dkt. 145-6. However, on August 22, 2025,
defendants sent a “Safe Harbor” letter to plaintiff asserting that based on a review
of the clawed-back documents, defendants believed that plaintiff’s first amended
complaint contains material misstatements in violation of Rule 11. Dkt. 145-7; Dkt.
158-3. Plaintiff viewed this letter as an impermissible use of the inadvertently
produced documents and on August 25, 2025 filed the instant motion to preclude

defendants from further use or disclosure of the information contained in the social
worker documents. Dkt. 145.

Rule 26(b)(5)(B) informs this dispute and provides that, “[i]f information
produced in discovery is subject to a claim of privilege … the party making the
claim may notify any party that received the information of the claim and the basis
for it.” FED. R. CIV. P. 26(b)(5)(B). Further, after notification, the receiving party
“must promptly return, sequester, or destroy the specified information and any
copies it has, [and] must not use or disclose the information until the claim is
resolved.” On July 22, 2025, plaintiff made defendants aware of his privilege claim

over the inadvertently produced documents in his claw-back email. The parties’
instant motions (both of which seek determination of plaintiff’s privilege claim)
make plain that the privilege dispute remains live. Accordingly, since July 22, 2025
at the earliest, defendants were barred from using or disclosing the inadvertently
produced documents and the information contained therein.3

For these reasons, plaintiff’s motion to preclude defendants from using the

inadvertently produced social worker documents or the information contained in
them is granted. However, plaintiff’s request to order defense counsel to identify “all
individuals who have seen the documents or who have been told of information
contained in them,” Dkt. 145 at 8, is denied. As noted above, the Rule requires only
that the receiving party “promptly return, sequester, or destroy the specified
information and any copies it has … [and] take reasonable steps to retrieve the
information if the party disclosed it before being notified.” FED. R. CIV. P.

26(b)(5)(B). To the extent defendants have not already done so, they shall collect
and destroy all copies of the inadvertently produced materials and provide plaintiff
with written certification of the destruction.

3 Defendants’ August 22, 2025 Rule 11 letter was sent prior to this Court’s resolution of the
privilege dispute and therefore inappropriately relies on and cites to the clawed-back
materials. Despite defendants’ arguments to the contrary, which fail to offer any support in
the Rules or relevant case law, defendants were not permitted to rely on or reference
information contained in the allegedly privileged materials without court authorization.
II. Defendants’ Motion to Compel

In their cross-motion, defendants seek to compel production of the social
worker documents the CCPD inadvertently produced and plaintiff clawed-back.

Dkt. 158. Though defendants’ motion seeks relief from plaintiff, it is the CCPD, the
recipient of the Rule 45 subpoena, that may be compelled to produce the social
worker documents. Defendants do not dispute that the documents are protected by
the attorney-client privilege and/or the work product doctrine. See, e.g., Jenkins v.
Bartlett, 487 F.3d 482, 491 (7th Cir. 2007) (attorney-client privilege protects
communications with attorney and the attorney’s agents, including retained

experts); U.S. v. Smith, 502 F.3d 680, 689 (7th Cir. 2007) (work product privilege
protects documents “prepared by an attorney or the attorney’s agent to analyze and
prepare the client’s case.”). Instead, defendants argue plaintiff waived the privileges
in various ways and further that defendants have a substantial need for documents
covered by the work product doctrine. Dkt. 158 at 18-30; Dkt. 174 at 7-15.
A. Waiver Due to Inadequate Privilege Log

The Court first addresses defendants’ argument that plaintiff has waived

privilege by failing to submit a proper privilege log concerning the social worker
documents. Dkt. 158 at 14-17. However, the responsibility for preparing a privilege
log falls to the party producing documents in response to the subpoena, in this case
the CCPD. See Sioux Steel Co. v. Prairie Land Millwright Servs., Inc., No. 16 CV
2212, 2020 WL 2900834, at *2 (N.D. Ill. June 3, 2020) (requiring privilege log in the
context of a Rule 45 subpoena).4

As noted, a CCPD representative emailed defendants on July 22, 2025

confirming that production of the social worker documents was inadvertent and
improper. Dkt. 145-5 (characterizing the production as “absolutely an oversight”
and stating that the office “should have pulled the folder that was marked
PRIVILEGED.”). By taking this position, the CCPD triggered its obligation to
tender a privilege log to defendants. Since the CCPD has not produced a privilege
log covering the social worker documents to date, it shall do so by March 20, 2026.

The log shall comply with the requirements in this District. See Urban 8 Fox Lake
Corp. v. Nationwide Affordable Housing Fund 4, LLC, 334 F.R.D. 149, 156 (N.D. Ill.
2020) (quoting RBS Citizens, N.A. v. Husain, 291 F.R.D. 209, 218 (N.D. Ill. 2013))
(“Courts in this district have required that a privilege log identify for each separate
document the following information: the date, the author and all recipients, along
with their capacities, the subject matter of the document, the purpose for its
production and a specific explanation of why the document is privileged.”); Belcastro

4 Defendants argue that plaintiff expressly waived the privilege over all the social worker
documents by failing to assert privilege over a January 6, 1989 letter that Mr. Stralka sent
to First Assistant Public Defender Rita Fry requesting that the CCPD retain a social
worker for plaintiff’s case. Dkt. 158 at 21-22. Not so. Plaintiff asserted privilege over the 42
pages of interview notes as well as 14 additional documents. Dkt. 177 at 2 (asserting
privilege over “56 pages of material . . . relating to work performed by a clinical social
worker”) (emphasis added). Additionally, as the producing party, the initial responsibility
for asserting privilege and preparing a log belongs to the CCPD. In any event, the letter
between members of plaintiff’s legal team is protected from disclosure as work product. See,
e.g., Guster-Hines v. McDonald’s USA, LLC, No. 2024 WL 5457437, at *3 (N.D. Ill. July 11,
2024) (the work product privilege protects documents “prepared in anticipation of litigation
or for trial” by a party’s attorney, agent or representative).

v. United Airlines, Inc., No. 17 CV 1682, 2021 WL 1531601 (N.D. Ill. Apr. 19, 2021)
(“[T]he party must establish that the privilege applies on a document-by-document
basis.”).

Defendants argue that the appropriate sanction for the CCPD’s delay in 

producing a privilege log is waiver. The Court disagrees. “The district court enjoys
considerable discretion in determining whether . . . it will permit a party to
supplement its log to correct any inadequacies before finding a waiver.” LKQ Corp.
v. Kia Motors Am., Inc., No. 21 CV 3166, 2023 WL 3200236, at *5 (N.D. Ill. May 2,
2023). Moreover, “[a]n order that privileged documents be disclosed as a sanction is

appropriate . . . only if the party that authored the log has displayed willfulness,
bad faith or fault.” Muro v. Target Corp., 250 F.R.D. 350, 365 (N.D. Ill. 2007) (citing
Am. Nat’l Bank & Trust Co. of Chicago v. Equitable Life Assurance Society of U.S., 406 F.3d 867, 877 (7th Cir. 2005)). Defendants have not proffered, and the Court
finds no evidence of willfulness, bad faith, or fault in this record warranting the
harsh sanction of waiver. Defendants’ motion to compel production of the social
worker documents based on the inadequate privilege log is denied.

B.   Waiver of the Attorney-Client Privilege                         
The attorney-client privilege can be waived either explicitly or by implication. 

Cage v. Harper, No. 17 CV 7621, 2019 WL 6911967, at *1 (N.D. Ill. Dec. 19, 2019)
(citing Lorenz v. Valley Forge Ins. Co., 815 F.2d 1095, 1098 (7th Cir. 1987)). Here,
defendants argue that both waivers apply.

1. Express Waiver

Express waiver occurs where “information that would otherwise be privileged
is not kept confidential.” Cage, 2019 WL 6911967, at *1 (quoting Patrick v. City of

Chicago, 154 F. Supp. 3d 705, 711 (N.D. Ill. 2015)). “Any voluntary disclosure by the
holder of the attorney-client privilege is inconsistent with the attorney-client
confidential relationship and thus waives the privilege.” Powers v. Chicago Transit
Authority, 890 F.2d 1355, 1359 (7th Cir.1989) (citing U.S. v. Buljubasic, 808 F.2d
1260, 1268 (7th Cir.1987)). Further, “[v]oluntary disclosure of privileged
information about a matter waives the privilege as to all information on the same

subject matter.” Fujisawa Pharmaceutical Co., v. Kapoor, 162 F.R.D. 539, 541 (N.D.
Ill. 1995).

Defendants argue that plaintiff expressly waived his attorney-client privilege
over the inadvertently produced social worker documents by “reveal[ing] the
substance of the communications” in (1) an affidavit in support of plaintiff’s request
for post-conviction relief, (2) plaintiff’s original and amended post-conviction briefs,
and (3) plaintiff’s First Amended Complaint. Dkt. 158 at 18-20; Dkt. 174 at 7-9.

According to defendants, plaintiff repeatedly asserted in those filings that he told
his attorney he was innocent of the charges against him, opening the door to
disclosure of all privileged communications with counsel “and any agent working on
that counsel’s behalf” on the subject matter of his sexual relations with the victim
and involvement in her murder. Id. This argument is unpersuasive. First, plaintiff did not affirmatively disclose
the substance of any communications with counsel. In the First Amended

Complaint, plaintiff merely stated that he “maintained his innocence” and did not

commit any crimes. Dkt. 79 ¶¶ 1, 29. In the affidavit and post-conviction petitions,
plaintiff reiterated that he “maintained his innocence” and recounted the following
exchange with his criminal attorney: “After I was moved to Cook County Jail, I had
a brief meeting with my public defender, Paul Stralka, during which I told him
about the abuse I endured. I also told him that I did not have sex with Theresa and
that I did not kill her.” Dkt. 159-17, 2/9/2017 Affidavit, ¶ 22; Dkt. 159-18 ¶¶ 23, 62;

Dkt. 159-19 ¶¶ 23, 62.

Second, these protestations of innocence in no way evidence an attempt by
plaintiff to rely on certain conversations with counsel while shielding others. See
Patrick, 154 F. Supp. 3d at 711 (express waiver is intended to prevent a party from
selectively disclosing information). Significantly, the statements made in the post-
conviction petitions related solely to an ineffective assistance of counsel claim that
plaintiff ultimately did not pursue. See infra at 11-13. Given these circumstances,

there is no merit to defendants’ assertion that plaintiff expressly waived privilege
over all communications with his attorney (much less his whole “legal team”)
relating to his involvement (or lack thereof) in the underlying crimes.

2. Implied Waiver

Implied waiver occurs when “a client asserts claims or defenses that put his
or her attorney’s advice ‘at issue’ in the litigation.” Cage, 2019 WL 6911967, at *1
(citing Beneficial Franchise Co. v. Bank One, N.A., 205 F.R.D. 212, 216 (N.D. Ill.
2001)). Defendants argue that plaintiff has implicitly waived the attorney-client
privilege by placing his attorney’s advice “at issue” in the following ways: (1) by

alleging that he told his former attorneys that he was innocent of the underlying
crimes; (2) by asserting a claim of ineffective assistance of counsel; and (3) by
asserting a Brady claim. The Court considers each argument in turn.

a. Claims of Innocence

Defendants first argue that plaintiff placed his attorney’s advice at issue by
repeating allegations of police abuse and claims of innocence to his attorneys over

the course of his criminal case. Dkt. 158 at 23 (citing Dkt. 79, First Amended
Complaint, ¶ 29); Dkt. 174 at 9-11. Defendants believe plaintiff is attempting to
obtain a strategic advantage in this case by arguing that his claims of innocence
and torture should be credited because he conveyed them to his defense attorney,
while at the same time withholding evidence in the social worker documents that he
confessed to his legal team that he committed the crimes. Dkt. 158 at 6, 22-25; Dkt.
174 at 10.

Courts have made clear that “[m]erely asserting a claim or defense to which 

attorney-client communications are relevant, without more, does not constitute a
waiver of attorney-client privilege.” Cage, 2019 WL 6911967, at *1. Rather, at-issue
waiver occurs when a party affirmatively puts at issue “the specific communication,
document, or information to which the privilege attaches.” Id. at *2. For reasons
stated earlier, plaintiff’s general allegation in the First Amended Complaint that he
“maintained his innocence” to counsel does not place specific privileged

communications at issue in this case. See Matichak v. Joliet Park Dist., No. 16 CV
5877, 2016 WL 11706697, at *4 (N.D. Ill. Oct. 21, 2016) (mere denials of alleged

misconduct insufficient for at-issue waiver). Moreover, the argument that plaintiff
purportedly “confessed” is premised on defendants’ interpretation of the contents of
privileged materials they should never have seen.

On the evidence presented, this Court declines to find that plaintiff impliedly
waived the attorney-client privilege by asserting his innocence to counsel. See Cage, 2019 WL 6911967, at *1 (quoting Silverman v. Motorola, Inc., No. 07 CV 4507, 2010

WL 2697599, at *1 (N.D. Ill. July 7, 2010)) (“The ‘at issue’ waiver doctrine is limited
and ‘should not be used to eviscerate the attorney-client privilege.’”).

b. Ineffective Assistance Claim

Next, defendants argue that plaintiff impliedly waived the attorney-client
privilege by making a claim against Mr. Stralka for ineffective assistance of counsel.
Dkt. 158 at 25-26; Dkt. 174 at 11-13. “It has long been the rule in the federal courts
that, where a habeas petitioner raises a claim of ineffective assistance of counsel, he

waives the attorney-client privilege as to all communications with his allegedly
ineffective lawyer.” Cantu v. United States, No. 19-CR-40066-JPG, 2022 WL
16791706, at *1 (S.D. Ill. Nov. 8, 2022); Patrick, 154 F. Supp. 3d at 712-15 (the
waiver applies in the state proceedings and subsequent federal proceedings). Here,
plaintiff asserted in his initial post-conviction petition that Mr. Stralka was
ineffective based on 14 alleged “failures,” including conceding at trial that plaintiff
had committed the charged offenses. Dkt. 158 at 26; Dkt. 159-18 ¶ 233. Defendants
contend that this constitutes a waiver of the privilege as to all communications
plaintiff had with counsel on the entire subject matter of the 14 topics. Dkt. 174 at

12-13.

Plaintiff does not disagree that waiver may occur when a criminal defendant
files a claim for ineffective assistance of counsel. Rather, plaintiff insists that he
ultimately preserved his privilege by abandoning the ineffective assistance claim in
his amended petition. Dkt. 167 at 23 (citing Bittaker v. Woodford, 331 F.3d 715, 721 (9th Cir. 2003)) (“the holder of the privilege may preserve the confidentiality of the

privileged communications by choosing to abandon the claim that gives rise to the
waiver condition.”). Defendants reject the idea that plaintiff “abandoned” his claim,
noting that the amended petition states the claim “was previously dismissed.” Dkt.
159-19 ¶ 241; Dkt. 174 at 11. Defendants argue dismissal of an ineffective
assistance claim does not constitute a retraction or undo a waiver. Dkt. 174 at 12
(citing Patrick, 154 F. Supp.3d at 715) (finding waiver despite state court’s
dismissal of the plaintiff’s ineffective assistance of counsel claim as untimely).

Neither party has attached documents from the underlying criminal case 

conclusively establishing how or why plaintiff did not end up pursuing the
ineffective assistance claim. In defendants’ initial brief, however, they appear to
concede that plaintiff’s ineffective assistance claim “was withdrawn” in response to
a motion to dismiss filed by the State. Dkt. 158 at 26 n.3. Moreover, the Patrick case
defendants rely on is distinguishable. The plaintiff there conceded that he had
waived privilege for purposes of the state court litigation, 154 F. Supp. 3d at 712,
and signed two affidavits disclosing the substance of conversations he had with his
attorney about his desire to testify at the trial, along with the attorney’s specific

explanations for why he could not. Patrick v. City of Chicago, No. 14 CV 3658, Dkts.
95-4, 95-5. The court held that such “voluntary disclosures” operated as a waiver as
to those communications. Patrick, 154 F. Supp. 3d at 715. Here, plaintiff’s affidavit
reveals nothing substantive about his conversations with counsel or counsel’s
response. Dkt. 159-17 ¶ 22 (stating that plaintiff told his attorney “about the abuse
[he] endured” and that he “did not have sex with” and “did not kill” his

stepdaughter).

For purposes of this motion, the Court declines to find that plaintiff has
impliedly waived the attorney-client privilege simply by raising it at one point
during the post-conviction proceedings. See United States v. Palivos, No. 00 CR
1065-5, 2010 WL 3190714, at *7 (N.D. Ill. Aug. 12, 2010) (if the plaintiff “does not
waive the privilege, then his ineffective assistance claim will be deemed
withdrawn.”). Defendants’ motion to compel on that basis is denied.

          c.   Brady Claim                                           
Finaly, defendants argue that plaintiff implicitly waived the attorney-client 

privilege by making a Brady claim in this case that has placed his attorney’s advice
at issue. Dkt. 158 at 28 (citing Jackson v. City of Chicago, No. 03 CV 8289, 2006 WL
2224052, at *7 (N.D. Ill. July 31, 2006) (implied waiver occurs when “the client’s
claim or defense puts the attorney’s advice at issue.”)); Dkt. 174 at 13-14. To prove a
Brady violation, plaintiff must establish three elements: “(1) the evidence at issue is
favorable to [him], either being exculpatory or impeaching; (2) the evidence must
have been suppressed by the government, either willfully or inadvertently; and (3)

there is a reasonable probability that prejudice ensued - in other words,
‘materiality.’” Carvajal v. Dominguez, 542 F.3d 561, 566-67 (7th Cir. 2008).
Evidence is “suppressed” for purposes of the second element when: “(1) the
prosecution failed to disclose the evidence in time for the defendant to make use of
it, and (2) the evidence was not otherwise available to the defendant through the
exercise of reasonable diligence.” Id. at 567. “Though advancing a Brady claim does

not ‘per force constitute[ ] a waiver of the attorney-client privilege,’ . . . waiver may
occur if the plaintiff places ‘the extent of [his] and his counsel’s knowledge of
information withheld during the initial criminal trial at issue.’” Taylor v. City of
Chicago, No. 14 CV 737, 2015 WL 5611192, at *2 (N.D. Ill. Sept. 22, 2015) (quoting
Jackson, 2006 WL 2224052, at *7, and Cannon v. Polk County/Polk County Sheriff,
No. 3:10-CV-224-HA, 2013 WL 1840343, at *3 (D. Or. Apr. 30, 2013)).

In his first amended complaint, plaintiff alleges that defendants coerced him

into falsely confessing to the crimes using torture, defendant Detective Duffin
“planted” the murder weapon to frame plaintiff, and defendants deliberately
withheld this exculpatory evidence “thereby misleading and misdirecting Plaintiff’s
criminal prosecution.” Dkt. 79 ¶¶ 66, 174-76. Defendants argue that by making
these allegations, plaintiff placed his attorney’s knowledge of that alleged
wrongdoing at issue in the case and waived privilege over not only “any

communication between Marshall and his legal team on the topic of physical abuse
and the murder weapon,” Dkt. 158 at 28, but also “[a]ny communication between
Plaintiff and his legal team on his confession, sexual relationship with Theresa,

involvement in her murder, and the murder weapon.” Dkt. 174 at 14.

In support, defendants rely on Taylor, where the plaintiff alleged the
defendants violated Brady by withholding evidence that the defendant officers
coerced plaintiff into confessing to murder, and by failing to disclose the existence of
an alibi witness. 2015 WL 5611192, at *3. When deposed, the plaintiff testified that
he spoke with his criminal defense attorney about both issues but the attorney

refused to answer any related questions on privilege grounds. Id. at *3, *4. The
defendants moved to compel and the court found that the plaintiff had impliedly
waived the attorney-client privilege. As the court explained, since the Brady claims
placed at issue the attorney’s knowledge of alleged police abuse and an alibi
witness, the privilege did not shield communications on those matters. Id. at *4, *6.
This Court finds the reasoning in Taylor persuasive. Here, plaintiff alleges
defendants withheld exculpatory evidence regarding his alleged coerced confession

and planting evidence. By doing so, plaintiff placed at issue his attorney’s
knowledge of these two allegedly exculpatory topics. Accordingly, to the extent the
CCPD documents reflect communications concerning these topics, those portions of
the documents must be produced. Communications on all other topics, however, are
privileged and protected from production. Defendants’ motion to compel based on
the Brady claims is therefore granted in part and denied in part.

C. Waiver of Work Product Protection

Defendants argue that even if plaintiff has not waived the attorney-client
privilege, they have a substantial need for the social worker documents that

outweighs any work product privilege. Dkt. 158 at 28; Dkt. 174 at 14-15.5

“In limited situations documents protected as [fact] attorney work product
are nonetheless discoverable if a party can establish a ‘substantial need’ for the
documents and cannot obtain equivalent materials without ‘undue hardship.’”
Sandra T.E. v. South Berwyn Sch. Dist. 100, 600 F.3d 612, 622 (7th Cir. 2010)
(quoting FED. R. CIV. P. 26(b)(3)(A)(ii)). See also Appleton Papers, Inc. v. E.P.A., [702

F.3d 1018, 1023](https://www.courtlistener.com/opinion/814287/appleton-papers-inc-v-environmental-protection-agency/#1023) (7th Cir. 2012) (“‘Fact’ work product is discoverable in the rare case
where [a] party makes the ‘substantial need’ showing.”). Defendants contend that
the requirements are satisfied here because plaintiff already waived the attorney-
client privilege over these materials, Mr. Stralka is deceased, and “it is unlikely the
clinical social worker will have any independent memory of their interaction with
Plaintiff 35 years later, thus removing any alternative means to get information
relating to conversations between Plaintiff and his legal team.” Dkt. 174 at 15.

The Court agrees that plaintiff’s limited waiver of the attorney-client 

privilege extends to work product protection, which “protects many of the same
interests as the attorney/client privilege.” Patrick, 154 F. Supp. 3d at 716 (“For the
same reasons that the attorney-client privilege has been waived, that waiver

5 Defendants’ discussion of the standard for assessing whether a party has a particularized
need for documents protected by the deliberative process privilege is misplaced and
disregarded. Dkt. 58 at 28-29. Plaintiff is not asserting deliberative process privilege over
the materials at issue.

extends to those documents” protected as work product that discuss the same
topics). That is, plaintiff has waived privilege over fact work product that reveals
communications with counsel regarding the alleged coerced confession and alleged

planted evidence.

Defendants’ arguments for extending the waiver even further are not

persuasive. First, defendants offer no explanation for why Mr. Stralka’s death has
any bearing on their purported substantial need for privileged documents created
by him and his legal team while representing plaintiff in the criminal case. Indeed,
such a conclusion would greatly undermine the very purposes of the work product

doctrine, namely, “(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., 600 F.3d at 622.

Second, regarding the social worker as a forgetful witness, the “possibility of
a faded memory is not sufficient to overcome work-product protections.” Walker v.
White, No. 16 CV 7024, 2019 WL 1953124, at *7 (N.D. Ill. May 2, 2019). And

defendants fail to cite any authority allowing them to obtain from an attorney’s
agent documents and information they are prohibited from obtaining directly from
the attorney. Accordingly, the waiver does not extend beyond the context of
materials related to plaintiff’s Brady claim as set forth in this opinion.
CONCLUSION
For the reasons stated above, plaintiff's motion for protective order [145] is
granted and defendants’ cross-motion to compel [158] is granted in part and denied
in part. By March 20, 2026, defendants shall certify to plaintiff in writing that they
have collected and destroyed all copies of the inadvertently produced CCPD social
worker documents. By March 20, 2026, the CCPD shall produce to defendants (1) a
privilege log for the social worker documents in accordance with this opinion, and
(2) unredacted copies of any portion(s) of the social worker documents that reflect
communications between plaintiff and his attorney regarding the alleged coerced
confession or the alleged planting of evidence, to the extent such communications
exist.

So Ordered.
Che ee WA Gryo—
Jéannice W. Appente
United States Magistrate Judge
Date: 3/6/2026

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