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Powers v. Board of Trustees of the University of Illinois

September 23, 2010

ELIZABETH T. POWERS AND NICHOLAS POWERS, PLAINTIFFS,
v.
BOARD OF TRUSTEES OF THE UNIVERSITY OF ILLINOIS, DEFENDANT.



The opinion of the court was delivered by: Michael P. McCUSKEY Chief U.S. District Judge

OPINION

This case is before the court for ruling on the Motion to Quash Subpoena (#31) filed by Plaintiffs, Elizabeth T. Powers and Nicholas Powers (#31). Following this court's careful review of the Plaintiffs' Motion and the Response (#34) filed by Defendant, the Board of Trustees of the University of Illinois (University), Plaintiffs' Motion to Quash Subpoena (#31) is DENIED.

BACKGROUND

On November 4, 2008, Plaintiffs filed their Complaint (#1) against the University. In Counts III and IV, Plaintiffs alleged that the University retaliated against them by refusing to pay Plaintiffs for work they had performed unless they withdrew charges of discrimination. Specifically, Plaintiffs alleged:

18. On June 5, 2006, Elizabeth and Nicholas filed charges of discrimination with the Illinois Department of Human Rights (IDHR) and the Equal Employment Opportunity Commission (EEOC), being EEOC Charge Numbers 21 BA 61958 and 21 BA 61959, respectively.

...

21. On June 15, 2006, before he had knowledge that the charges had been filed, [Robert F.] Rich offered to partially pay Plaintiffs for the work they had performed on a "take it or leave it basis." On June 19, 2006, Plaintiffs accepted Rich's offer to pay Elizabeth and Nicholas for the work they had performed on the study and report.

22. After Rich learned of the discrimination charges filed by Elizabeth and Nicholas with the IDHR and EEOC, he refused to pay them for the work they had performed unless they withdrew all of their charges.

In their Answers to Interrogatories, Plaintiffs identified their attorneys, Zimmerly, Gadau, Selin and Otto, as having information regarding the occurrences complained of and damages. With regard to the claims of retaliation, both Plaintiffs identified communications between agents of the University and John Otto, attorney for Plaintiffs, which directly reference the matters pleaded in paragraphs 18, 21, and 22 of Plaintiffs' Complaint.

MOTION TO QUASH

On August 30, 2010, Plaintiffs filed a Motion to Quash Subpoena (#31). Plaintiffs stated that John Otto is and, at all times relevant, has been the attorney for Plaintiffs in this matter. Plaintiffs stated that "John Otto has acted in no capacities in this matter other than as attorney for the plaintiffs, and, therefore, all of his communications with the plaintiffs are protected by attorney-client privilege." Plaintiffs further stated that, prior to the filing of this lawsuit, Otto engaged in negotiations with Laura Clower, an attorney in the University's Legal Counsel's office, regarding a proposed settlement agreement. Plaintiffs stated that the "proposed settlement was never agreed to nor signed by any of the parties."

Plaintiffs stated that, on August 24, 2010, Plaintiffs took the deposition of Larry Mann, a retired employee of the University. Plaintiffs stated that Otto's name did not come up during Mann's deposition. Following Mann's deposition, William Brinkman, one of the attorneys for the University, stated that he would have to take Otto's deposition. Plaintiffs stated that this was the first time Brinkman said he would have to take Otto's deposition. Plaintiffs stated that Otto would not agree to have his deposition taken on the grounds that he had no relevant information not already in the possession of Defendant and that all communications with his clients are protected by attorney-client privilege. Plaintiffs further stated that the discovery cutoff date in this case was August 31, 2010. Plaintiffs stated that, on August 30, 2010, at approximately 3:20 p.m., Otto was served with a subpoena for his deposition to be taken at the office of Thomas, Mamer & Haughey at 9:00 a.m. on August 31, 2010. Plaintiffs stated that Otto had a court appearance scheduled at that time. Plaintiffs stated that "[c]counsel for both parties are well aware of the rule that a person cannot appear both as a witness and as attorney for one of the parties in a case." Plaintiffs argued that the University's attempt to require Otto to submit to a deposition was an "attempt to sow confusion at the last minute" and a possible attempt "to require Plaintiffs' counsel to withdraw from the case." Plaintiffs further argued that there was no legitimate reason to require Otto to submit to a deposition with less than 24 hours notice on the last day of discovery. Plaintiffs asked this court to quash the subpoena issued by counsel for the University. Plaintiffs did not cite any authority in support of their request.

On September 16, 2010, the University filed its Response to Motion to Quash (#34) with attached supporting exhibits. The exhibits included Plaintiffs' Answers to Interrogatories, copies of letters and emails regarding the claims in this case and a portion of the transcript of the deposition of Larry Mann taken on August 24, 2010. The University stated that, after June 5, 2006, the date Plaintiffs filed their charge of discrimination, Plaintiffs and their attorney, John Otto, were negotiating with the University, including the office of the legal counsel for the University, without disclosing that the claims had been filed. The University stated that Laura Clower and Lisa Huson, attorneys for the University, were identified by Plaintiffs as persons in possession of information regarding Plaintiffs' claims. Clower's involvement related to negotiations to pay Plaintiffs, which were referenced in the Complaint. According to the University, Clower's discussions were directly with Otto. The University stated that its counsel, William J. Brinkman, had discussed with Otto his disclosure as a witness and the possible need for a deposition. The University stated that, during the deposition of Larry Mann on August 24, 2010, "it became clear that Plaintiffs' retaliation claim was based upon a purported 'agreement' to pay Plaintiffs made as a result of negotiations, involving John Otto, after charges of discrimination had been filed but before notice of those charges were disclosed to [the University]." The University stated that it then directly requested a deposition from Otto and he refused. Therefore, the University served a Notice of Deposition (#29) and a Subpoena (#30).

The University argued that it is entitled to depose Otto in this case. It pointed out that, in Plaintiffs' Motion to Quash, Plaintiffs stated that the negotiations involving Otto regarding a proposed settlement did not result in an agreement. However, in their Complaint, Plaintiffs alleged that an agreement was reached with the University, but the University refused to comply with the terms of the agreement unless Plaintiffs withdrew their charges of discrimination. The University argued that Plaintiffs' claim that a deposition of Otto would involve attorney-client privilege "is premature and presumes that the questions to John Otto would relate to communications with his client[s]." The University contended that the record before this court reflected Otto's involvement in communications with agents of the University and with the office of legal counsel for the University, many of ...


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