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Kodish v. Oakbrook Terrace Fire Protection District

April 20, 2006


The opinion of the court was delivered by: Magistrate Judge Morton Denlow


Plaintiff Brian Kodish ("Kodish" or "Plaintiff") moves this Court pursuant to Rule 37 of the Federal Rules of Civil Procedure, to compel Defendants Oakbrook Terrace Fire Protection District ("Fire District"), Gregory J. Sebesta ("Sebesta"), Donald Ventura ("Ventura"), Andy Sarallo ("Sarallo"), and Joe Dragovich ("Dragovich") (collectively "Defendants") to produce the audiotape of the Fire District board meeting closed session held by the Defendants on August 11, 2004. For the reasons set forth below, the Court grants in part and denies in part Plaintiff's motion to compel the production of the audiotape.


Plaintiff was terminated from his position as a firefighter/paramedic by Oakbrook Terrace on August 12, 2004. Sebasta is the Chief of the Fire District. Ventura, Sarallo and Dragovich are the Fire District's trustees. Plaintiff brought this action alleging that Defendants intentionally deprived him of his constitutionally protected right to due process of law in violation of 42 U.S.C. §1983, and that the Defendants wrongfully terminated him and defamed him.

Plaintiff was hired as a firefighter/paramedic by the Fire District on June 2, 2003. In late December 2003, Plaintiff suffered a knee injury while working for the Fire District. Plaintiff's injury kept him off work starting around March 24, 2004. Plaintiff underwent surgery on May 7, 2004, and was not medically released to full duty until July 23, 2004. On August 2, 2004, the Illinois Public Risk Fund ("IPRF") informed Plaintiff that the Fire District's workers compensation carrier/administrator denied paying his medical bills because it did not believe he suffered a work injury.

On August 9, 2004, Plaintiff took a scheduled workday off in order to meet with an attorney to acquire representation for a workers compensation claim. Defendants held a closed session meeting on August 11, 2004 with its attorney, where they discussed the decision to terminate Sebesta. Plaintiff returned to work on August 12, 2004, and Sebesta told him that he did not earn the day off for August 9, and that the Fire District made the decision to terminate him. Plaintiff claims that his termination was wrongful.

In the course of discovery, Plaintiff submitted a request to produce to Defendants, which included a request for audiotapes. Defendants did not initially identify any audiotape in its response. During the deposition of Dragovich, Plaintiff learned that the August 11, 2004 closed session meeting was audiotaped. Plaintiff renewed his request for the audiotape. The Fire District has refused to produce the audiotape, contending that this information is privileged under the open meetings provisions of the Illinois Open Meetings Act ("the Act"), 5 ILL.COMP.STAT.ANN.120/1 (2006). Furthermore, the Fire District claims that the discussions are protected from disclosure by the attorney-client privilege. Plaintiff now seeks to compel the Defendants to produce the audiotape recorded during the August 11, 2004 closed session meeting.


A party may file a motion to compel discovery under Rule 37 of the Federal Rules of Civil Procedure where another party fails to respond to a discovery request or where the party's response is evasive or incomplete. Fed. R. Civ. P. 37(a)(2)-(3). The Federal Rules of Civil Procedure provide a court with broad discretion in resolving discovery disputes. Meyer v. Southern Pacific Lines, 199 F.R.D. 610, 611 (N.D. Ill. 2001). A motion to compel discovery is granted or denied at the discretion of the trial court. Id. In ruling on motions to compel discovery, "courts have consistently adopted a liberal interpretation of the discovery rules." Wilstein v. San Tropia Condominium Master Association, 189 F.R.D. 371, 375 (N.D. Ill. 1999).

Under Rule 26(b)(1), "parties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party, . . . For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action." Fed. R. Civ. P. 26(b)(1). Requests for discovery are relevant if there is any possibility that the information sought may be relevant to the subject matter of the action. Rubin v. Islamic Republican of Iran, 349 F. Supp. 2d 1108, 1111 (N.D. Ill. 2004). Thus, the scope of discovery should be broad in order to aid in the search for truth. Tice v. American Airlines, Inc., 192 F.R.D. 270, 272 (N.D. Ill. 2000). Courts commonly look unfavorably upon significant restrictions placed upon the discovery process. Rubin, 349 F. Supp. 2d at 1111. The burden rests upon the objecting party to show why a particular discovery request is improper. Id.


In its consideration of Plaintiff's motion, the Court must decide the following issues:

(1) whether federal or state law governs the privilege questions;

(2) whether the Act protects discussions held in a closed session meeting; and (3) whether the attorney-client privilege protects ...

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