Commercial Litigation and Arbitration

Employee-Union Representative Privilege Recognized (Federal Court) — Issue of First Impression

Bell v. Village of Streamwood, 806 F. Supp. 2d 1052 (N.D. Ill. 2011):

Before the Court is Plaintiffs' motion to compel Ryan Ruthenberg's deposition testimony. The motion raises a question of first impression regarding whether an employee-union representative privilege should be adopted as a matter of federal common law in connection with a federal civil rights lawsuit. Plaintiffs argue that Ruthenberg improperly refused to answer questions posed at his deposition. According to Plaintiffs, counsel for Defendants improperly objected to virtually all substantive questions in the deposition, asserting a combination of evidentiary privileges including an Illinois statutory union representative privilege and the attorney-client privilege. Ruthenberg and Defendants contend that the assertion of these privileges was proper. For the reasons explained below, the Court grants Plaintiffs' motion to compel further testimony from Ruthenberg. ***

Federal law governs the privileges asserted here. This is a federal question case arising under the Civil Rights Act of 1964. See 42 U.S.C. § 1983. Plaintiffs also bring several supplemental state law claims. Defendants argue that the sheer number of state law claims asserted by Plaintiffs indicates that the "principal claim" is not federal in nature. But the constitutional excessive force claim is plainly the main event in this litigation and the claim on which jurisdiction hinges, and it arises under federal law. Therefore, this Court is not bound by state privilege law and must instead determine whether any privileges apply as a matter of federal law.

B. An Employee-Union Representative Privilege Applies in the Context of Disciplinary Proceedings.

If a given state law privilege has not been recognized by federal law, the Court must consider whether federal common law should embrace the asserted state-law privilege. Kodish v. Oakbrook Terrace Fire Protection Dist., 235 F.R.D. 447, 450-51 (N.D. Ill. 2006). No controlling authority establishes a federal privilege protecting employee-union representative communications, so the Court must decide whether to expand the federal common law of privilege to include communications protected by Illinois statute.***

The nature of a union agent's role suggests a need to protect some communications between union agents and union members. Illinois has codified a union agent-union member privilege***. 735 Ill. Comp. Stat. 5/8-803.5. The Illinois statute thus create a relatively broad privilege, but this Court need only consider whether to adopt the privilege in the context of anticipated or ongoing disciplinary proceedings.

Union representatives like Ruthenberg may have various duties, including representing union members in disciplinary proceedings and internal investigations. In the course of representing a union member accused of some wrongdoing, a union representative may receive confidential information. This role is not unlike that of an attorney. As with the attorney-client privilege, there is a strong interest in encouraging an employee accused of wrongdoing to communicate fully and frankly with his union representative, in order to receive accurate advice about the disciplinary process. See U.S. Dept. of Justice v. Fed. Labor Relations Auth., 39 F.3d 361, 368-69, 309 U.S. App. D.C. 84 (D.C. Cir. 1994) (recognizing an employee-union representative privilege in the context of labor law). The Court therefore holds that an employee-union representative privilege will extend to communications made (1) in confidence; (2) in connection with "representative" services relating to anticipated or ongoing disciplinary proceedings; (3) between an employee and his union representative; (4) where the union representative is acting in his or her official representative capacity. Cf. United States v. BDO Seidman , LLP, 492 F.3d 806, 815 (7th Cir. 2007) (defining attorney-client privilege). Like the attorney-client privilege, the employee-union representative privilege is limited in that it extends only to communications, not to the underlying facts. Discussing a relevant fact with a union representative will not shield it from discovery. See Upjohn Co. v. United States, 449 U.S. 383, 395, 101 S. Ct. 677, 66 L. Ed. 2d 584 (1981) (holding the attorney-client privilege protects the disclosure of communications but does not protect the client from disclosing the underlying facts.)

The expectation of confidentiality is critical to the employee-union representative privilege. Without confidentiality, union members would be hesitant to be fully forthcoming with their representatives, detrimentally impacting a union representative's ability to advise and represent union members with questions or problems. Absent an expectation of confidentiality, there is little need to protect the communications.

The "official representative capacity" element is also of particular importance in this case, because Ruthenberg was not only a union representative but also Mandarino's fellow police officer. The privilege will not extend to conversations where Ruthenberg acted as merely a friend or colleague. ***

In recognizing an employee-union representative privilege, this Court is also mindful that courts should be suspicious of recognizing privileges that would tend to shield evidence crucial to the legal inquiry. For instance, recognizing an open meetings privilege in a civil rights action could allow state agencies to insulate themselves against allegations of unconstitutional conduct. Kodish, 235 F.R.D. at 451-52. In Kodish, it was essential for the plaintiff to understand the reasons for his termination and other employment statistics in order to assert a discrimination claim. Id. at 452. The Seventh Circuit expressed a similar concern in Memorial Hospital, where the plaintiff needed information from hospital disciplinary proceedings in order to prove discrimination. 664 F.2d 1058, 1062-63 (7th Cir. 1981). By contrast, the types of communications protected by an employee-union representative privilege will typically involve an employee's recounting of the facts that gave rise to disciplinary action--facts that would be discoverable at the employee's own deposition in any event.

Here, Plaintiffs can effectively pursue their claims even if the employee-union representative privilege protects Ruthenberg's conversations with Mandarino. The crucial evidence here is not a possible admission to Ruthenberg, but rather the alleged misconduct itself, as evidenced by camera footage from Mandarino's police car and other eyewitness testimony already in evidence. Because ample evidence about the incident exists aside from the potentially privileged conversations, protecting communications between Ruthenberg and Mandarino would not unduly prejudice Plaintiffs.

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