Bell v. Village of Streamwood
806 F. Supp. 2d 1052
N.D. Ill.2011Background
- Plaintiff Bell sues Mandarino for excessive force during a 2010 traffic stop; Mandarino’s dashboard camera recorded baton strikes.
- Ruthenberg, a Streamwood police officer and Mandarino’s former union representative, was deposed about his discussions with Mandarino regarding the incident.
- At Ruthenberg’s deposition, Ruthenberg’s attorney asserted the Illinois union agent privilege and the attorney-client privilege to prevent disclosure of conversations with Mandarino.
- Plaintiffs sought further deposition testimony to determine the existence and scope of the privileges.
- Illinois statute 735 Ill. Comp. Stat. 5/8-803.5 provides a broad union agent privilege under certain conditions; the court must decide whether to adopt it as federal common law in this context.
- The court determines federal common law applies and concludes the employee-union representative privilege applies to communications in an official union capacity during anticipated or ongoing disciplinary proceedings, with confidentiality essential.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| What law governs the privilege questions? | Federal common law governs privileges in a federal question case. | State privilege law should apply or be controlling. | Federal common law applies. |
| Does an employee-union representative privilege apply under federal common law? | Illinois union privilege should be recognized as a federal privilege. | No federal employee-union privilege is recognized; privileges must be evaluated case-by-case. | An employee-union representative privilege applies under federal common law in disciplinary contexts. |
| Does the employee-union representative privilege or attorney-client privilege bar further testimony? | The privileges may cover some communications, but foundational questions must be answered to establish applicability. | Privilege was properly asserted to bar questions. | Ruthenberg improperly asserted the privilege against foundational questions; need for further testimony to establish privileges. |
| Who bears the costs for reconvening Ruthenberg’s deposition? | Costs should follow the normal rule for compelled testimony. | Novelty of privilege justifies cost shifting. | Ruthenberg bears court reporter costs for reconvening; Plaintiffs’ attorney’s fees not awarded from Ruthenberg, but expenses going forward are borne by Ruthenberg. |
Key Cases Cited
- Memorial Hosp. for McHenry County v. Shadur, 664 F.2d 1058 (7th Cir. 1981) (federal common law governs privileges in federal-question cases)
- Kodish v. Oakbrook Terrace Fire Protection Dist., 235 F.R.D. 447 (N.D. Ill. 2006) (case-by-case expansion of federal privilege; public/private interests)
- Jajee v. Redmond, 518 U.S. 1 (1996) (Rule 501 evolves privileges balancing interests)
- U.S. Dept. of Justice v. Fed. Labor Relations Auth., 39 F.3d 361 (D.C. Cir. 1994) (recognition of employee-union representative privilege in labor context)
- United States v. BDO Seidman, LLP, 492 F.3d 806 (7th Cir. 2007) (definition/limits of attorney-client privilege)
- Upjohn Co. v. United States, 449 U.S. 383 (1981) (privilege protects communications, not underlying facts)