The opinion of the court was delivered by: Magistrate Judge Morton Denlow
MEMORANDUM OPINION AND ORDER
Before the Court is Plaintiffs' motion to compel Ryan Ruthenberg's deposition testimony. The motion raises a question of first impression regarding whether an employee-union representative privilege should be adopted as a matter of federal common law in connection with a federal civil rights lawsuit. Plaintiffs argue that Ruthenberg improperly refused to answer questions posed at his deposition. According to Plaintiffs, counsel for Defendants improperly objected to virtually all substantive questions in the deposition, asserting a combination of evidentiary privileges including an Illinois statutory union representative privilege and the attorney-client privilege. Ruthenberg and Defendants contend that the assertion of these privileges was proper. For the reasons explained below, the Court grants Plaintiffs' motion to compel further testimony from Ruthenberg.
In this lawsuit, Plaintiff Ronald Bell accuses Defendant James Mandarino, a former Streamwood police officer, of employing excessive force against him during a traffic stop on March 28, 2010. Mandarino's dashboard camera recorded him striking Bell repeatedly with a baton.
Ryan Ruthenberg is a Streamwood police officer and Mandarino's former union representative. Plaintiffs suspect that Ruthenberg had discussions with Mandarino about the March 28, 2010 incident, so they sought to depose him. At his June 13, 2011 deposition, Ruthenberg described the role of a union representative as a liaison between the police officers and the union. When asked whether he had any involvement with Mandarino regarding the March 28, 2010 incident, Ruthenberg's attorney asserted the Illinois union agent privilege and Ruthenberg refused to answer the questions. Ruthenberg refused to discuss how many conversations, if any, he had with Mandarino or the circumstances of those conversations. Ruthenberg also asserted attorney-client privilege, to the extent an attorney was present for any of the conversations between Ruthenberg and Mandarino. At the same time, Ruthenberg refused to disclose whether he ever talked to Mandarino with an attorney present. Plaintiffs now seek to compel further deposition testimony from Ruthenberg.
In considering Plaintiffs' motion, the court must decide the following issues:
(1) whether federal or state law governs the privilege questions; (2) whether an employee-union representative privilege applies under federal common law; (3) whether the employee-union representative privilege or the attorney-client privilege bar further testimony from Ruthenberg; and (4) who should bear the expense of reconvening Ruthenberg's deposition.
A. Federal Common Law Governs the Privileges Asserted.
Rule 501 of the Federal Rules of Evidence states that "[t]he privilege of a witness, person, government, State, or political subdivision thereof shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience." When state law supplies the rule of decision, federal courts must apply state privilege law. Fed. R. Evid. 501. Even so, if the "principal claim" in federal court is one arising under federal law, then the federal common law of privileges applies, even if supplemental state law claims exist. Memorial Hospital for McHenry County v. Shadur, 664 F.2d 1058, 1061 (7th Cir. 1981). This rule arises because "it would be meaningless to hold [a] communication privileged for one set of claims and not the other." Id. at 1061 n.3.
Federal law governs the privileges asserted here. This is a federal question case arising under the Civil Rights Act of 1964. See 42 U.S.C. § 1983. Plaintiffs also bring several supplemental state law claims. Defendants argue that the sheer number of state law claims asserted by Plaintiffs indicates that the "principal claim" is not federal in nature. But the constitutional excessive force claim is plainly the main event in this litigation and the claim on which jurisdiction hinges, and it arises under federal law. Therefore, this Court is not bound by state privilege law and must instead determine whether any privileges apply as a matter of federal law.
B. An Employee-Union Representative Privilege Applies in the Context of Disciplinary Proceedings.
If a given state law privilege has not been recognized by federal law, the Court must consider whether federal common law should embrace the asserted state-law privilege. Kodish v. Oakbrook Terrace Fire Protection Dist., 235 F.R.D. 447, 450--51 (N.D. Ill. 2006). No controlling authority establishes a federal privilege protecting employee-union representative communications, so the Court must decide whether to expand the federal common law of privilege to include communications protected by Illinois statute. In Jaffee v. Redmond, the Supreme Court explained that Rule 501 directed federal courts to "continue the evolutionary development of testimonial privileges" by interpreting privileges in light of reason and experience. 518 U.S. 1, 9 (1996). For any privilege to be added to the federal common law, the privilege must "promote . . . sufficiently important interests to outweigh the need for probative evidence." Id. This analysis must occur on a case-by-case basis, and take into account both the public and private interests that the privilege serves, as well as the evidentiary benefit that would result if the privilege were denied. Id. at 8--11.
The nature of a union agent's role suggests a need to protect some communications between union agents and union members. Illinois has codified a union ...