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Fran A. Babych, On Behalf of Herself, the Class v. Psychiatric Solutions

December 15, 2010

FRAN A. BABYCH, ON BEHALF OF HERSELF, THE CLASS, AND OTHER SIMILARLY SITUATED EMPLOYEES KNOWN AND UNKNOWN, PLAINTIFF,
v.
PSYCHIATRIC SOLUTIONS, INC., A DELAWARE CORPORATION, BHC MANAGEMENT SERVICES OF STREAMWOOD, LLC, A DELAWARE LIMITED LIABILITY COMPANY, BHC STREAMWOOD HOSPITAL, INC., A TENNESSEE CORPORATION, D/B/A STREAMWOOD BEHAVIORAL HEALTH CENTER, CINDY MEYER, INDIVIDUALLY, AND DONNA STONE, INDIVIDUALLY, DEFENDANTS.



The opinion of the court was delivered by: Judge Joan H. Lefkow

Magistrate Judge Geraldine Soat Brown

MEMORANDUM OPINION AND ORDER

Geraldine Soat Brown, United States Magistrate Judge

Before the court is plaintiff Fran A. Babych's motion to compel witness Gina Bruhn to answer questions for which defendants asserted attorney-client privilege during Ms. Bruhn's October 1, 2010 deposition. (Pl.'s Mot.) [Dkt 64.] Babych also seeks documents and notes created by defendants' counsel during a meeting with Ms. Bruhn on April 20, 2010, for which defendants assert attorney-client privilege and work-product protection. For the reasons set forth below, Babych's motion is denied.

BACKGROUND

The underlying claims in this putative class action involve allegations of age discrimination, retaliation, and violations of the Illinois Minimum Wage Law, Family and Medical Leave Act, and Fair Labor Standards Act. (Notice of Rem., Ex. A, Compl. ¶ 1.) [Dkt 1.] On September 10, 2010, Babych added claims that she was discharged in violation of the Illinois Whistleblower Act and Illinois common law, in retaliation for her reports that defendants defrauded private insurers and Medicaid. (Am. Compl. ¶ 1.) [Dkt 38.] Babych worked as a case manager at defendant Streamwood Behavioral Health Center ("Streamwood") until May 22, 2008. (Ans. to Am. Compl. ¶12.) [Dkt 50-52.] Ms. Bruhn was the Director of Risk Management and Performance Improvement at Streamwood until June 30, 2010. (Defs.' Resp., Ex. A, Dep. Gina Bruhn at 97.) [Dkt 69.]*fn1

According to defendants, in April 2010, Ms. Bruhn's name came up during Babych's depositions of individual defendants Cindy Meyer and Donna Stone, prompting defendants' then counsel Michael Rusie to arrange a meeting between Ms. Bruhn, himself, and Carolyn Paganoni, Streamwood Hospital's Director of Human Resources, on April 20, 2010. (Defs.' Resp. at 2.)*fn2 The discussion at that meeting and documents prepared during it are the subject of Babych's current motion.

Babych has submitted a declaration attesting that Ms. Bruhn contacted her in June 2010 to tell her about the April 20 meeting. (Pl.'s Reply, Ex. C-2, Decl. Fran A. Babych.) According to Babych, Ms. Bruhn reported that she was threatened that she could lose her job if she talked about the litigation and have "the Feds knocking at her door" if she disclosed information about the defendants. (Id. ¶5(c).) Babych also claims that Ms. Bruhn was pressured into signing a confidentiality agreement stating she would not talk about the case. (Id. ¶ 5(d)-(f).) However, during her deposition on September 9, 2010, Babych testified that aside from having lunch with Ms. Bruhn "way before this summer," the two had not spoken. (Defs.' Surreply, Ex. A, Dep. Fran Babych at 24-25.)

On September 9, 2010, Babych attempted to serve Ms. Bruhn with a subpoena to appear for a deposition on September 20, 2010. (Pl.'s Reply, Ex. C-1.) In her declaration, Babych avers that Ms. Bruhn called her on September 15, 2010 and told her that "I cannot afford to be dragged into your lawsuit" and "[c]all back that subpoena or I'll give a bad deposition and just keep saying 'I don't remember.'" (Babych Decl. ¶ 8.) Ms. Bruhn did not appear for the September 20 deposition, but did appear on October 1, 2010. (Bruhn Dep. at 85-87.)

At her deposition, Ms. Bruhn testified that she felt "tricked" into the April 20 meeting because she was not told the reason for it beforehand, but she understood after she arrived that she was being questioned as an employee of Streamwood about the present litigation. (Id. at 105, 136-37, 144-46, 151.) When asked by Babych's counsel about the substance of the April 20 meeting, Ms. Bruhn responded that it involved the "[s]ame kinds of questions you're asking me." (Id. at 148.) Ms. Bruhn further testified that after the meeting, Mr. Rusie typed up her statement and asked her to sign it, but she initially refused because it contained inaccuracies. (Id. at 143.) Mr. Rusie then revised the document and Ms. Bruhn signed it. (Id. at 143-44.) Ms. Bruhn testified she was not ordered or forced to sign the statement. (Id. at 153.) She testified that the document did not bar her from talking about the Babych litigation, nor did she fear she would lose her job if she did not sign it. (Id.)

Ms. Bruhn further testified that she never reported to Babych that she was forced to sign a confidentiality agreement. (Id. at 178.) She also testified that she has "never been frightened of Streamwood. Carolyn Paganoni retaliating, absolutely. Streamwood under Cindy Meyer, no." (Id. at 179.) She affirmed that no one, including Ms. Paganoni or Mr. Rusie, had ever threatened that "the feds would come knocking" at her door. (Id. at 176-77.)

When Babych's counsel attempted to question Ms. Bruhn further about the April 20 meeting, counsel for defendants made a number of objections based on attorney-client privilege. (See id. at 144-54.) Babych now seeks an order compelling Ms. Bruhn to answer the following: 1) the number of pages of Ms. Bruhn's statement; 2) whether Mr. Rusie asked Ms. Bruhn not to talk to Babych about the case; 3) the questions and statements Mr. Rusie made to Ms. Bruhn; 4) Ms. Bruhn's responses; 5) what was incorrect about the draft statement; and 6) whether Ms. Bruhn made admissions against herself in the document. (Pl.'s Mot. at 2-3.) As to the first two requests, defendants have disclosed that the statement is one page long (Defs.' Resp. at 2), and Ms. Bruhn testified in her deposition that she was not asked to refrain from talking about the case. (Bruhn Dep. at 178.) The remainder of the requests are addressed below.

Following the filing of the present motion, defendants' counsel served Babych's counsel with responses and objections to Babych's supplemental document requests, in which they identified withheld documents from the April 20 meeting as subject to attorney-client privilege and work-product protection. (Pl.'s Reply, Ex. D ΒΆ 2; Pl.'s Reply, Ex. G.) Babych now wants those documents ...


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