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HUGLEY v. ART INST. OF CHICAGO

October 29, 1997

RAYMOND L. HUGLEY, Plaintiff,
v.
THE ART INSTITUTE OF CHICAGO, et al., Defendants.



The opinion of the court was delivered by: ALESIA

 Before the court is The Illinois Department of Human Rights' ("IDHR") Non-Party's Motion to Quash Plaintiff's Subpoena. For the reasons that follow, the court grants in part and denies in part the IDHR's motion to quash.

 Plaintiff Raymond L. Hugley ("Hugley") filed suit against defendants The Art Institute of Chicago, Richard Hall, and Marion Ellis, alleging race discrimination in violation of Title VII of the Civil Rights Act of 1964, race bias in violation of section 1981 of the Civil Rights Act of 1866 as amended by the Civil Rights Act of 1991, and defamation in violation of Illinois common law. This court has subject matter jurisdiction over these claims pursuant to 28 U.S.C. § 1331 and § 1367.

 Before filing suit in federal court, Hugley filed a charge of discrimination with the IDHR. The IDHR investigated the charge.

 During the discovery process related to Hugley's suit filed in this court, Hugley had the IDHR served with a subpoena, demanding production of the investigative file and all other documents relating to Hugley's charge. In response to Hugley's subpoena, the IDHR produced some of the requested documents and withheld others. The IDHR then filed with the court a Non-Party's Motion to Quash Plaintiff's Subpoena. In its motion, the IDHR asserts that the withheld documents are protected from discovery by the privilege afforded records of the IDHR under section 926.210 of the Illinois Administrative Code ("section 926.210"), ILL. ADMIN. CODE tit. 2, § 926.210 (West 1997), the attorney-client privilege, and the work-product doctrine.

 In support of its motion to quash, the IDHR has submitted for an in camera review the sixteen withheld documents along with a privilege log which identifies the documents and specifies the privileges asserted as to the particular document. The IDHR, however, did not number each of the documents. For the purposes of the court's order, the documents are numbered as follows: Document number 1 is the one undated copy of the charge referenced in I.b.1 of the IDHR's privilege log. Document number 2 is the three pages of notes referenced in I.b.2. Document number 3 is the two pages of notes referenced in II.b. Documents number 4, 5, and 6 are the three pages of memoranda referenced in III.b. Document number 7 is the one page of notes referenced in IV.b. Document number 8 is the two-page investigator plan referenced in V.b. Document number 9 is the one page document referenced in VI.b. Document number 10 is the one page document referenced in VII.b. Documents number 11, 12 and 13 are the checklists referenced in VIII.b. Document number 14 is the Complainant Information Sheet referenced in IX.b.1. Document number 15 is the one-page draft referenced in IX.b.2. Document number 16 is the eleven-page draft referenced in X.b.

 II. DISCUSSION

 A. Section 926.210

 The IDHR first argues that the withheld documents are protected from discovery by the privilege afforded records of the IDHR under section 926.210 of the Illinois Administrative Code ("section 926.210"). ILL. ADMIN. CODE tit. 2, § 926.210 (West 1997). Section 926.210 provides, in pertinent part:

 
The contents of any files maintained by the Department pertaining to charges, including but not limited to all documents, statements, notes, memoranda, correspondence, exhibits and any reports or summaries prepared by or on the behalf of the Department, as well as the identities of any parties or witnesses in such matters, shall be confidential and not subject to public disclosure, except that: (a) the parties to any charge may inspect any such file upon making arrangements with the Department, at any time subsequent to the Department's written notification of Substantial Evidence, or dismissal or administrative closure of the charge; or after filing a complaint, a petition for entry of a default order, or settlement agreement with the Human Rights Commission. However, the Department shall not allow parties to inspect certain materials which include, but are not limited to: (1) internal memoranda; (2) work papers, or notes or other materials reflecting the deliberative processes, mental impressions, or legal theories and advice of the Department ....

 § 926.210(a)(1)-(2).

 There are two issues embedded in the IDHR's argument that the withheld documents are protected by section 926.210. The first issue is whether the court should recognize the privilege afforded under section 926.210. *fn1" The second issue is whether the privilege actually protects the documents in question.

 The first issue is whether the court should recognize the privilege afforded under section 926.210. The principal claims in this case arise under Title VII of the Civil Rights Act of 1964 and section 1981 of the Civil Rights of 1866 as amended by the Civil Rights Act of 1991, both of which are federal laws. In a case such as this, where federal law supplies the rule of decision, the court is not required to recognize the state-law privilege asserted. Memorial Hosp. for McHenry County v. Shadur, 664 F.2d 1058, 1061 (7th Cir. 1981); Tutman v. WBBM-TV/CBS Inc., 1997 U.S. Dist. LEXIS 13281, No. 96 C 4424, 1997 WL 548556, at *2 (N.D. Ill. Sept. 3, 1997). Rather, the question of whether the court should recognize the privilege asserted is "governed ...


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