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VILLAGE OF ALSIP, et al., Defendants.

The opinion of the court was delivered by: SUZANNE CONLON, District Judge



James T. McGreal, an Alsip police officer, sues the Village of Alsip and two of its highest ranking police officers, Kenneth Wood and David Snooks, as well as Dr. Eric Ostrov, a psychologist retained by the village to examine McGreal, pursuant to 42 U.S.C. § 1983 and the Illinois Mental Health and Developmental Disabilities Confidentiality Act, 740 Ill. Comp. Stat. Ann. 110/1 et seq. Another judge of this court granted summary judgment on defendants' behalf. The Seventh Circuit reversed and remanded the case for trial. McGreal v. Ostrov, 368 F.3d 657 (7th Cir. 2004).

  McGreal alleges he was the subject of a campaign to remove him from his position as an Alsip police officer after he exercised his right to free speech regarding various incidents of alleged corruption. Specifically, McGreal alleges the following incidents of protected speech: (1) his statements that illegal gambling was occurring at the Alsip Elk's Club and that Alsip's mayor, Arnold Andrews, may have received a percentage of the revenue produced by gambling machines; (2) his complaint with the Judicial Inquiry Board regarding his suspicions of improper conduct by Judge Sterba and an inordinately lenient sentence in a drunken driving case; (3) his appeal of the village's decision to renew a liquor license for the Copacabana, a bar tied to Mayor Andrews; and (4) his public criticisms during his campaign against Andrews in the 1997 mayorial election concerning Andrews' performance and the police department's mishandling of confidential documents. McGreal alleges that after receiving pressure from the mayor, defendants attempted to terminate his career as a police officer based on pretextual charges of wrongdoing. To achieve this end, defendants hired Thomas McGuire, an attorney who represents municipalities seeking termination of police officers, and Dr. Eric Ostrov, a psychologist and lawyer who often provides testimony for McGuire. Defendants ordered McGreal to submit to a psychological evaluation by Ostrov to assess his fitness for duty. Ostrov determined McGreal should be allowed to remain on full active duty if he undertook psychotherapy. McGreal agreed to consider therapy, but was handed a memo by Police Chief Wood placing him on paid sick leave. Two weeks after McGreal filed this lawsuit, Wood served McGreal with an administrative complaint seeking his termination on charges of wrongdoing. McGreal argues the charges were a pretext for retaliation. The administrative complaint was eventually settled.

  Defendants maintain McGreal's false statements and actions were in reckless disregard of their falsity. Defendants further argue the village's interests in efficiently running and operating the police department outweighed any interest McGreal may have had in speaking out. Finally, defendants assert they would have taken the same employment actions against McGreal in spite of his alleged constitutionally protected speech.

  Before the court are a number of motions in limine to bar evidence at trial. DISCUSSION

  I. Standard of Review

  Evidence is excluded on a motion in limine only if the evidence is clearly inadmissible for any purpose. See Hawthorne Partners v. AT&T Technologies, 831 F. Supp. 1398, 1400 (N.D. Ill. 1993). Motions in limine are disfavored; admissibility questions should be ruled upon as they arise at trial. Id. Accordingly, if evidence is not clearly inadmissible, evidentiary rulings must be deferred until trial to allow questions of foundation, relevancy and prejudice to be resolved in context. Id. at 1401. Denial of a motion in limine does not indicate evidence contemplated by the motion will be admitted at trial. Instead, denial of the motion means the court cannot or should not determine whether the evidence in question should be excluded before trial. United States v. Connelly, 874 F.2d 412, 416 (7th Cir. 1989).

  II. Officer John Doe

  Both sides submit motions in limine pertaining to Officer John Doe and the court will address them together.

  McGreal's Motion. McGreal argues defendants' alleged reasons for seeking his termination were pretextual. He asserts the types of infractions for which he was cited were not infractions that would motivate defendants to terminate him absent his protected speech. To support this claim, McGreal proffers evidence regarding Officer John Doe, who allegedly committed far more serious infractions without facing any termination proceedings.*fn1 After discovery closed in 1999, Doe committed further infractions and defendants terminated his employment. McGreal seeks to exclude evidence regarding the termination of Officer Doe and the infractions leading to his termination that occurred after discovery closed. He argues defendants have not supplemented their discovery production regarding Doe's additional infractions or the termination decision. Therefore, the evidentiary consequences of failing to supplement should be an order barring references to Officer Doe's termination. Defendants argue there was no obligation to supplement production under Fed.R. Civ. P. 26(e) because their discovery responses at the time were neither incomplete nor incorrect.

  Federal Rule of Civil Procedure 26(a)(2) provides a party must "seasonably amend" a discovery response if "the party learns that the response is in some material respect incomplete or incorrect and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing." Defendants cite an unpublished Sixth Circuit slip opinion for the proposition there is "no duty to supplement a prior response with respect to a document which did not yet exist." Def. Resp. to McGreal Mot. at 1, citing Taylor v. Union Institute, 30 Fed. Appx. 443, 451 (6th Cir. 2002). Defendants misstate the issue and holding in Taylor. There, the court noted a party has no obligation to produce a document that does not exist when responding to an opponent's discovery requests. However, the issue in Taylor, as here, was whether a party's response to a request becomes "incomplete and incorrect" when new information is generated or created, triggering the duty to supplement an earlier discovery response. In Taylor, a document created after discovery responses were served did not render the response incomplete or trigger the duty to supplement because the original request had a defined scope seeking documents for the previous 10 years. Here, neither party provides the court with the original discovery requests regarding Officer Doe, and the court cannot determine whether defendants' response to the request became incomplete or misleading when Officer Doe's additional infractions or termination occurred. While McGreal argues defendants inadequately responded to his request for supplementation in February 2001, he apparently has not complied with Local Rule 37.2. Nor did he move to compel supplemental discovery responses. On the eve of trial, McGreal cannot bar evidence based on alleged discovery deficiencies he failed to address within a reasonable time after he was aware of them. Accordingly, the motion in limine must be denied.

  Defendants' Motion. Defendants seek to preclude all evidence pertaining to Officer Doe's misconduct as irrelevant and overly prejudicial under Fed.R. Evid. 402 and 403. They argue Doe is not comparable to McGreal because Doe did not publish potentially defamatory statements, and Doe accepted responsibility for his alcoholism. McGreal responds that the fact defendants tolerated egregious misconduct from Officer Doe but sought to terminate McGreal for relatively minor matters demonstrates defendants were retaliating against McGreal, not imposing good faith discipline. Further, McGreal asserts the Seventh Circuit's rejection of defendants' similar arguments on summary judgment constituted an explicit rejection of these defense theories for trial.*fn2

  Irrelevant evidence is not admissible. Fed.R. Evid. 402. Relevant evidence is defined as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Fed.R. Evid. 401. Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, waste of time, and jury confusion. Fed.R.Evid. 403. Based on this record, evidence pertaining to Officer Doe's misconduct is not clearly inadmissible. The evidence may be probative regarding the legitimacy of defendants' claimed motivation for seeking McGreal's termination. Whether the probative value, if any, of this evidence is outweighed by the danger of unfair prejudice and jury confusion of the issues ...

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