Gonzalez v. Guevara

               UNITED STATES DISTRICT COURT                              
           FOR THE NORTHERN DISTRICT OF ILLINOIS                         
                      EASTERN DIVISION                                   

NELSON GONZALEZ,              )                                           
                             )                                           
Plaintiff,                    )                                           
                             )  No. 23-CV-14281                          
v.                           )                                           
                             )                                           
REYNALDO GUEVARA, et al.,     )  Magistrate Judge Jeffrey T. Gilbert      
                             )                                           
Defendants.                   )                                           
                             )                                           
                             )                                           

                            ORDER                                        
    The Court assumes familiarity with its prior Memorandum Opinion and Order 
[ECF No. 117] (“MOO”) regarding Plaintiff’s Motion to Compel Cook County State’s 
Attorney’s Office to Produce Unredacted Documents [ECF No. 106] (“Motion”). As 
relevant here, the Motion seeks to compel third party subpoena respondent Cook 
County State’s Attorney’s Office (“CCSAO” or “Third Party Respondent”) to produce 
certain documents CCSAO is withholding or has redacted based on the assertion of a 
deliberative process privilege. Motion [ECF No. 106] at 9-12. The documents were 
submitted to the Court for in camera review and the Court subsequentely ordered 
CCSAO to provide a revised privilege log and declaration in support of CCSAO’s 
assertion of the deliberative process privilege. CCSAO filed a new declaration which 
included updated privilege log entries for the documents at issue. See Declaration of 
Prathima Yeddanapudi Offered as Amendment to Declaration of Lyle K. Henretty 
[Docket #110-9] [ECF No. 119] (“Yeddanapudi Declaration”).                
    The  Court  previously  addressed  and  incorporates  by  reference  the  legal 
standard applicable to CCSAO’s assertion of the deliberative process privilege. See 
MOO [ECF No. 117]. In the Yeddanapudi Declaration, CCSAO explains that it 

asserts “deliberative process privilege as well as the work-product privilege over 
materials related to the CCSAO decisions concerning litigation generally, unless 
there  is  a  specific  reason  not  to  do  so”  or  evidence  of  a  waiver.  Yeddanapudi 
Declaration [ECF No. 119] at ¶ 10.  This statement improperly inverts CCSAO’s 
burden to establish, in the first instance, the deliberative process privilege applies to 
the withheld or redacted documents. “The government bears the burden of proving 

what deliberative process was involved and what role the document played in that 
process.”  King  v.  I.R.S.,  684  F.2d  517,  519  (7th  Cir.  1982).  Moreover,  “because 
evidentiary privileges operate to exclude relevant evidence and thereby block the 
judicial fact-finding function, they are not favored and, where recognized, must be 
narrowly construed.” See Mem'l Hosp. for McHenry Cnty. v. Shadur, 664 F.2d 1058, 
1061 (7th Cir. 1981) (citing United States v. Nixon, 418 U.S. 683, 710, (1974)). 
CCSAO’s approach, as described in the Yeddanapudi Declaration, does not appear to 

make any effort to narrowly construe the application of the deliberative process 
privilege but rather establishes a default position that generally treats all materials 
related to CCSAO litigation decisions as subject to the privilege. This approach is 
improper under the law of the deliberative process privilege as it has been applied by 
federal courts.                                                           
    “[I]n order to qualify for the privilege, a document must be both predecisional 
in the sense that it is ‘actually [a]ntecedent to the adoption of an agency policy,’ and 
deliberative in the sense that it is ‘actually ... related to the process by which policies 

are formulated.’” Enviro Tech Intern., Inc. v. U.S. E.P.A., 371 F.3d 370, 375 (7th Cir. 
2004).  In  considering  the  application  of  the  deliberative  process  privilege  to 
prosecuting entities like the CCSAO, courts have described the prosecutorial decision 
to be made as whether to bring charges and prosecute, or, in a post-conviction context, 
whether to vacate convictions or oppose petitions for Certificates of Innocence. See 
Hill v. City of Chicago, 2015 WL 12844948, at *3 (N.D. Ill. May 28, 2015) (“the CCSAO 

is entitled to invoke the deliberative process privilege with respect to the particular 
decision to approve felony charges on July 2, 2011”) (emphasis added); Walls v. 
Vasselli, 2022 WL 1004248, at *3 (N.D. Ill. Apr. 4, 2022) (“Other courts have likewise 
held that the deliberative process privilege can apply to memoranda, notes, and other 
documents created while evaluating whether to prosecute an individual defendant.”) 
(emphasis added) (internal citations omitted); Saunders v. City of Chicago, 2015 WL 
4765424, at *10–12 (N.D. Ill. Aug. 12, 2015) (referring to the potentially privileged 

documents  reflecting  “prosecutorial  decisions”  as  “documents  from  the 
reinvestigation files . . . that reveal deliberations, recommendations, advice, debate, 
opinions, or analysis regarding positions the State’s Attorney should take in relation 
to the motions to vacate the convictions and the petitions for Certificates of Innocence, 
and whether to nolle prosequi the charges“).                              
    This is also how the prosecutorial decisions are described in the authorities 
cited by CCSAO in support of its invocation of the deliberative process privilege in 
this case. See DeLeon-Reyes v. Guevara, 2021 WL 3109662, at *3–5 (N.D. Ill. July 22, 

2021) (CCSAO met its prima facie burden by submitting a declaration claiming the 
deliberative process privilege “over ‘testimony and materials related to the decisions 
made by the CCSAO to drop charges and not to retry Mr. Solache and Mr. Reyes’” 
and “over ‘testimony and materials related to the CCSAO's position on the Plaintiffs’ 
petitions for [Certificates of Innocence]’”); Almodovar v. Guevara, et al./Negron v. 
Guevara, et al., No. 18 CV 2701) (N.D. Ill. 2024) at Dkt. 161 (CCSAO affidavit “claims 

that  the  deliberative  process  privilege  applies  to  testimony  about  the  CCSAO’s 
decision to drop the charges against plaintiffs and the CCSAO’s position on plaintiffs’ 
petitions for COIs”) (concluding “the privilege bars defendants from asking [] about 
the discussions and deliberations within the CCSAO that preceded the decisions to 
dismiss the charges against plaintiffs and not to oppose their petitions for COIs. But 
the deliberative process privilege ‘typically does not justify the withholding of purely 
factual material.’”); Fulton v. City of Chicago, No. 17 CV 8696 (N.D. Ill. 2020) at Dkt. 

293 (identifying decisions potentially subject to deliberative process privilege as “the 
motion to seek a retrial and then to dismiss and then a Certificate of Innocence do 
not oppose it” (sic)).                                                    
    The Yeddanapudi Declaration, by contrast, fails to specifically identify the 
prosecutorial decision(s) that provide the basis for CCSAO’s deliberative process 
privilege claim over the withheld or redacted documents. While the Declaration says 
the  documents  contain  notes  “taken  prior  to  and  contemporaneously  with  the 
prosecution of Plaintiff Nelson Gonzalez as well as post-conviction proceedings,” 
CCSAO does not say those notes reveal any pre-decisional analysis of whether to 

prosecute Mr. Gonzalez or whether to oppose his post-conviction relief. The mere fact 
that  the  notes  were  made  before  or  during  trial,  or  during  post-conviction 
proceedings, does not necessarily mean the notes (whether handwritten or typed) 
reflect the type of deliberative and pre-decisional process potentially subject to the 
privilege.  Similarly, the  Declaration’s  description  of  the  documents  as  including 
“hand-written synopses, notes on witnesses (including impressions), notes regarding 

what occurred during the trial and post-conviction, statement/impressions about the 
case, and other asserted notes” some of which “include underlying (sic), starring, 
checking off, or other marks used to highlight specific information“ falls short of 
identifying the specific prosecutorial decision implicated by those synopses or notes. 
[ECF No. 119] at ¶¶  7-8.                                                 
    Moreover, CCSAO does not provide any cases or authority supporting its 
apparent view that the deliberative process privilege generally protects litigation or 

trial strategy decisions, as may be implicated by the notes in the withheld and 
redacted documents here, from disclosure. See Martinez v. Guevara, No. 23-cv-1741 
(N.D. Ill. 2024) (Finnegan, J.) at Dkt. 203 p. 7-9 (noting CCSAO did not identify “a 
case in which a court has applied the privilege to a prosecutor’s deliberations over 
trial preparation and strategy decisions -- as opposed to pre-decisional deliberations 
over whether to seek an indictment or vacate a conviction.”). Other courts have 
rejected CCSAO’s assertions of deliberative process privilege over trial notes, trial 
strategy and trial preparation materials where CCSAO used language that closely 
mirrors the document descriptions in both the Henretty Declaration (submitted with 

CCSAO’s  initial  response  brief,  see  [ECF  No.  110-9])  and  the  Yeddanapudi 
Declaration. Compare Yeddanapudi Declaration [ECF No. 119] at ¶¶ 7-8 (describing 
withheld  documents  as  “ASA  notes”  including  “hand-written  synopses,  notes  on 
witnesses (including impressions), notes regarding what occurred during the trial 
and post-conviction, statement/impressions about the case, and other assorted notes”) 
with Cruz v. Guevara, 2024 WL 5442646, at *1–2 (N.D. Ill. May 17, 2024) (overruling 

CCSAO’s deliberative process privilege objection as to “ASA Notes and the ASA Trial 
Preparation Materials” described as “notes taken prior to and contemporaneously 
with  the  prosecution  of  Plaintiff”  including  “hand-written  synopses,  notes  on 
witnesses (including impressions), notes regarding what occurred during the trial, a 
draft opening statement, what appears to be a draft closing statement/impression 
about the case, a draft witness list, and other assorted notes”); Martinez, No. 23-cv-
1741, at Dkt. 203 p. 7-9 (rejecting CCSAO’s assertion of deliberative process privilege 

over “withheld ASA notes” including “(1) “ASA handwritten notes from trial that 
convey the thought process behind the trial”; (2) “ASA case notes written throughout 
the actual preparation of the case leading up to trial which convey the thought process 
behind the way the prosecutor presented the information he had”; and (3) “drafts of 
trial preparation materials that convey the planning of arguing the State’s positions, 
including internal worksheets.”).                                         
    For  similar  reasons,  the  updated  privilege  log  entries  for  the  withheld 
documents contained within the Yeddanapudi Declaration do not suffice to satisfy 
CCSAO’s prima facie burden to establish application of the deliberative process 

privilege.  CCSAO  describes  certain  “pre-trial”  documents  as  pertaining  to  trial 
strategy  decisions,  such  as  potential  objections  to  evidence,  about  witnesses,  or 
analysis of a motion in limine.1 As discussed in Cruz, the CCSAO’s “description 
sounds much more like a characterization of attorney work-product than the pre-
decisional or deliberative internal discussions of an agency” and “[n]othing about the 
CCSAO’s description can lead the Court to conclude that disclosure would undermine 

the agencys decisional functions or expose its pre-decisional or deliberative processes 
in any way that would trigger protection of the deliberative process privilege.” Id.; see 
also Walls v. Vasselli, 2022 WL 1004248, at *4 (N.D. Ill. Apr. 4, 2022) (Durkin, J.) 
(CCSAO affidavit offered in support of assertion of deliberative process privilege over 
document “is very conclusory, and much of it directed toward the elements of the work 
product privilege, which the Court has already rejected”); Martinez, No. 23-cv-1741 
(N.D. Ill. 2024) at Dkt. 203 p. 7-9.2                                     


1 See Yeddanapudi Declaration [ECF No. 119] at ¶ 9 (CCSAO_00003 (potential objections to 
DNA testing of evidence); CCSAO_00637 (trial strategy on witness questioning, palmprint 
evidence, and witnesses); CCSAO_000973 (handwritten notes analyzing motion in limine); 
CCSAO_001000 and CCSAO_001057 (handwritten notes about investigation of witnesses); 
CCSAO_001389 (handwritten notes about witnesses and testimony needed for trial). 
2 Moreover, while the Yeddanapudi Declaration continues to invoke work product protection 
over these documents, the Court already determined that CCSAO failed to respond to 
Plaintiff’s cited authority establishing that work product protections are unavailable to block 
production of CCSAO’s documents in this context. See MOO [ECF No. 117] at n.1 (also citing 
Williams v. City of Chicago, 2023 WL 6213716, at *3 (N.D. Ill. Sept. 25, 2023) (declining “to 
stray from the clear line of cases holding that ‘the work product doctrine does not protect a 
prosecutor’s files in a subsequent, related civil action.’”); Cruz, 2024 WL 5442646, at *3 (N.D. 
    The Yeddanapudi Declaration also describes certain documents as including 
“handwritten synopses” and “notes regarding what occurred during the trial and post-
conviction.” [ECF No. 119] at ¶ 8. Based on the Court’s in camera review, however, 

these  documents  do  not  reflect  any  pre-decisional  discussions  or  deliberative 
processes that could appropriately be withheld under the privilege. See id. at ¶ 9 
(CCSAO_000708, CCSAO_000811, CCSAO_000973  (containing what appears to be 
a final recommendation for future post-conviction action rather than pre-decisional 
deliberations about whether or not to take that action); CCSAO_001561 (scheduling-
related communication that does not describe any pre-decisional strategy regarding 

post-conviction relief); CCSAO_001692-1701 (handwritten notes of “what transpired 
in  trial”).3  Moreover,  courts  have  rejected  the  assertion  of  deliberative  process 
privilege over documents that merely contain “synopses” of facts or summaries of 
proceedings  rather  than  deliberative  discussions  of  a  pre-decisional  nature.  See 
Patrick v. City of Chicago, 111 F. Supp. 3d 909, 916–17 (N.D. Ill. 2015) (“The vast 


Ill. May 17, 2024) (“because the CCSAO is not a party to the case, and the materials in 
question therefore were not prepared by or for a party in the case . . .  the CCSAO cannot 
claim the work-product doctrine to bar production of the ASA Notes and the ASA Trial 
Preparation Materials”).                                                  
3 With respect to CCSAO_001692-1701, the Court’s in camera review did not reveal any 
clearly deliberative, pre-decisional discussions in this document and CCSAO’s log entry 
acknowledges the document contains a summary of “what transpired in trial.” Nor did 
CCSAO make an effort to identify specific comments or analysis within this document that 
it contends reflect a deliberative process related to a post-conviction prosecutorial decision; 
instead, CCSAO seeks to withhold all of the notes in their entirety, including portions that 
CCSAO concedes are summaries of “what transpired at trial.” See Martinez, No. 23-cv-1741 
(N.D.  Ill.  2024)  at  Dkt.  203  p.  8  (as  “the  documents  do  not  reveal  the  author’s  own 
deliberations or deliberations with others about trial decisions, the Court finds no basis for 
shielding them under the deliberative process privilege even assuming the privilege extends 
to such [trial strategy] decisions.”).                                    
majority of each page of each document does not reflect the author’s impressions, 
theories, hypotheses, recommendations for future action or how an issue might be 
resolved. There is no assessment of past errors or opinions on what should have been 

done. There are no communications which if disclosed would temper the candor of 
government staff “ ‘with a concern for appearances ... to the detriment of the decision-
making process.’ ” In the main, the documents were made after the State Court 
murder trial . . . and, in the main, are merely factual narratives or synopses of what 
was  recorded  in  police  reports,  pretrial  motions,  or  trial  transcripts.”)  (internal 
citations omitted).4                                                      

    Thus, the Court finds CCSAO has failed to establish the prima facie showing 
required for assertion of the deliberative process privilege over the withheld and 
redacted documents identified in its privilege log.                       
    For all the above reasons, Plaintiff’s Motion to Compel Cook County State’s 
Attorney’s Office to Produce Unredacted Documents [ECF No. 106] is granted in part 
and Third Party Respondent CCSAO is ordered to produce the documents withheld 
or redacted based on a deliberative process privilege objection.          





4 CCSAO_000640, CCSAO_000642 is a document titled “Synopsis of Facts” that includes a 
redacted witness and case evaluation and which is described in CCSAO’s revised privilege 
log entry as a “post-conviction” document. Based on the description that this is a post-
conviction document as well as the Court’s in camera review, it is not apparent how a 
discussion about trial witnesses could reflect any pre-decisional, deliberative process about a 
prosecutorial decision.                                                   
     It is so ordered. 

                                                 a   Te 
                                         4
                                        Jeffrey   T. Gilbert 
                                         United States Magistrate Judge 

Dated:   April 15, 2025 

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