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Elizabeth Buonauro , et al v. City of Berwyn

August 25, 2011

ELIZABETH BUONAURO , ET AL., PLAINTIFFS,
v.
CITY OF BERWYN ,
DEFENDANT.



The opinion of the court was delivered by: Martin C. Ashman United States Magistrate Judge

Judge Sharon Johnson Coleman

Martin C. Ashman Magistrate Judge

MEMORANDUM OPINION AND ORDER

Before the Court is the latest in a series of disputes concerning items Plaintiffs Elizabeth Buonauro, Sal Sottile, and the Bobby Buonauro Clinic, Inc. ("Plaintiffs") sought to discover from Defendant City of Berwyn ("the City") through their Request for Production No. 29. That request specifically asked for:

Any and all transcripts or video or audio recordings relating to any of the above topics or subjects, including but not limited to Zoning Board of Appeals and City Council proceedings where the Clinic's Business License Application was discussed[,] considered[,] and/or voted upon.

The parties previously filed a motion to compel, a motion to strike, a motion to clarify, a motion to correct, two privilege logs, and documents for an in camera review associated with Plaintiffs' seemingly straightforward request. Plaintiffs now present their motion for sanctions asking the Court to wade full force into what they characterize as a history of misconduct by the City and to impose the severe sanction of dismissal or, in the alternative, a conclusive evidentiary inference that the City acted with an improper motive. The Court rules on this motion under District Judge Sharon Johnson Coleman's referral for a decision pursuant to N.D. Ill. Rule 72.1. For the reasons discussed below, the Court finds that Plaintiffs' motion should be granted but that the two sanctions requested by Plaintiffs are unduly harsh. Instead, the Court finds that the lesser sanction of an adverse inference should be imposed for the City's conduct.

I. Factual and Procedural Background

The Bobby Buonauro Clinic ("the clinic") is an Illinois corporation that has operated a substance abuse clinic in Evanston, Illinois since 2002. Elizabeth Buonauro acts as the clinic's director, and Sal Sottile is its assistant director. In 2007, Buonauro and Sottile planned to open a new methadone clinic in the City and reached an initial agreement to lease space in an existing medical building there. The lease contained an agreement requiring the clinic to obtain a business license from the City to operate such a facility. The clinic applied for the license, but the City denied it on January 24, 2008, noting that it required zoning approval and directing the clinic to seek a variance from the Berwyn Zoning Board of Appeals. The Appeals Board approved the clinic's application, and the City Council placed the item on its agenda for April 8, 2008. The City Council's vote at that meeting resulted in a 4-4 tie, with Mayor Michael O'Connor casting the deciding vote against the resolution.

On July 8, 2008, the matter was once again before the City Council, and this time the Council approved it. Plaintiffs allege that Mayor O'Connor subsequently began a "political crusade" (Second Amend. Compl. at ¶ 31) to organize community opposition against the clinic and that a "community meeting" was held in a municipal parking lot on July 16 during which a "lynch mob mentality" was engendered against Plaintiffs. (Id. at ¶ 33.) Six days later, the City Council again met and reconsidered its July 8 approval of the license. By unanimous roll call, the City Council voted to rescind its former approval and deny the request. (Id. at ¶ 39.)

This suit soon followed on November 21, 2008. Discovery was stayed on September 24, 2009 pending settlement discussions between the parties but was re-opened on April 6, 2010 when it was clear that the parties could not reach an agreement. Plaintiffs quickly filed their written discovery requests on May 7, including Request No. 29 cited above seeking recordings and minutes of City Council meetings in which the clinic's license application was discussed or voted on. Significantly, as noted below, Plaintiffs had earlier made the same request on September 5, 2008 by means of the Illinois Freedom of Information Act ("FOIA"). (App., Ex. I.) The FOIA request included over thirty specific entries covering a broad range of files, notes, recordings, and emails related to the clinic's license application.

The tapes and minutes Plaintiffs sought involve recordings required under both the City's Code and the Illinois Open Meeting Act ("OMA"). The City's Code of Ordinances provides that the City shall keep "a verbatim record of all closed or executive session meetings of the corporate authorities of the city" in the form of an audio or video recording. City of Berwyn Code § 210.07(A). The City is also required to keep recordings of executive sessions "in accordance with the requirements of the Open Meetings Act." Id. at § 210.07(C). Both the City Code and the OMA permit the destruction of these recordings without notification eighteen months after the completion of the recorded meeting, provided that the public body approves the destruction and adequate minutes of the meeting have been taken and approved. 5 ILCS 120/2/06(c)(1) & (2). The City Code authorizes the City Clerk to take such action, again provided that it has been approved by the corporate authorities and no court order requires the tapes' preservation. City of Berwyn Code § 210.07(H).

The recordings included the Council's Committee of the Whole ("COW") meetings. As described by City Council members in deposition testimony, the City's aldermen held COW meetings, in either open or closed sessions, prior to scheduled City Council meetings. COW meetings often involved discussions of issues that the Council anticipated would be addressed in the public City Council meetings that would follow, and much of the deliberative processes involved in the Council's decision making occurred in the COW meetings. Former Mayor O'Conner described the COW meetings as opportunities for Council members to be informed about issues that were pending on the current public agenda as well as items outside the scheduled topics. City Clerk Thomas Pavlik testified that the City records COW meetings.

The City's response to Plaintiffs' Request No. 29 was clear and definite: "None at this time, investigation continues." Plaintiffs were not satisfied with this response, and believing that the clinic had been discussed on at least six specific dates, they brought their motion to compel the City to provide transcripts or recordings of those meetings.*fn1 The City responded by arguing that minutes of City Council meetings showed that the clinic's license application was not discussed in closed sessions between the end of 2008 and a November 23, 2010 session. Moreover, the City had already destroyed tapes for the 2008 meetings in reliance on the provisions of the OMA. The City further claimed that tapes of the intervening sessions up to November 23, 2010 were unresponsive to Request No. 29.

The City made no objection to the scope or potential ambiguity of Request No. 29 in either its discovery response or in its response to the motion to compel.*fn2 Nevertheless, the Court found that it should be interpreted more broadly than the City had done to include all issues related to the clinic, not just its license application. The Court ordered the City to produce tapes or minutes of discussions related to the broader range of topics that Request No. 29 included. The Court also rejected the City's argument that discussions at the November 23 meeting were privileged merely because the City's attorney was present. The City did not make any argument concerning what confidential communications, if any, had been made at the meeting, had not properly asserted a privilege objection in its discovery response, and had not provided a privilege log to either Plaintiffs or the Court. As the Court noted, this was insufficient to show that the attorney-client privilege applied to the November 23 meeting. Instead, the City based its answer to Request No. 29 -- "None at this time" -- on its own decision that a privilege exempted the City from disclosing the existence of the minutes or tapes of the November 23 meeting.*fn3

The City subsequently filed its motion to clarify and asked the Court to reconsider portions of its ruling. For the first time, the City objected to the scope of Request No. 29 and contended that it did not include transcripts or recordings of closed sessions of the City Council because the request mentioned only "proceedings," an argument reiterated at the hearing on the City's motion. The Court rejected this distinction and found that Plaintiffs were plainly asking for items related to all City Council meetings, open as well as closed. The City also submitted two additional items. A "corrective affidavit" of City Clerk Pavlik showed for the first time that the clinic had, in fact, been discussed at the July 22, 2008 meeting. The affidavit was based on the newly-discovered fact that two closed sessions had taken place on that date, and it corrected Pavlik's earlier affidavit testimony that the clinic was not discussed on July 22. Second, the City submitted a privilege log for the first time, claiming that minutes and recordings of the July 22, 2008 and November 23, 2010 meetings were protected by the attorney-client privilege. The Court rejected the log because it was not specific enough to allow a meaningful assessment of the attorney-client privilege, and the Court ordered to City to produce the relevant documents, together with a proper privilege log, for an in camera review.

The City did so, but its amended privilege log greatly expanded the scope of both the documents at issue and the privileges asserted. Based presumably on the Court's rejection of the City's distinction between "meetings" and "proceedings," the City now claimed that the clinic was discussed at twelve City Council meetings ranging from May 27, 2008 through November 23, 2010. It also asserted the legislative privilege, the deliberative process privilege, and the settlement privilege for many entries, including the two meetings that had previously been the only ones allegedly protected by the attorney-client privilege. The Court addressed the City's arguments in full, finding that some of the claimed privileges applied and some did not. The City was required to produce minutes and transcripts of relevant meetings that were not privileged. See Buonauro v. City of Berwyn, No. 08 C 6687, 2011 WL 2110133 (N.D. Ill. May 25, 2011).

On May 23, 2011, two days before the Court issued its order, Plaintiffs filed their motion for partial summary judgment and the instant motion for sanctions with Judge Coleman, who referred ...


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