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Hillmann v. City of Chicago

United States District Court, N.D. Illinois, Eastern Division

January 17, 2013

Robert P. HILLMANN, Plaintiff,
v.
CITY OF CHICAGO, Defendant.

Page 776

[Copyrighted Material Omitted]

Page 777

Kathryn Margaret Reidy, Law Offices of Kathryn M. Reidy, Bayview, ID, Brian M. Ozog, Stephen P. Carponelli, Carponelli & Krug, P.C., Chicago, IL, Byron Doyle Knight, Elizabeth Ann Knight, Knight, Hoppe, Kurnik & Knight LLC, Rosemont, IL, for Plaintiff.

Naomi Ann Avendano, Deja C. Nave, Mara Stacy Georges, Melanie Patrick Neely, Valerie Depies Harper, City of Chicago, Department of Law, Chicago, IL, for Defendant.

MEMORANDUM OPINION AND ORDER

RUBEN CASTILLO, District Judge.

Plaintiff Robert Hillmann, and Defendant City of Chicago (" City" ), have each moved to compel John Sullivan and Jack Drumgould (collectively, " Deponents" ) to respond to substantive deposition questions to which Sullivan and Drumgould invoked the Fifth Amendment. For the reasons set forth herein, the motions are granted.

BACKGROUND[1]

In 2005, Deponents worked for the City and were indicted on charges related to a political hiring scheme in the Department of Streets and Sanitation. (R. 389, Def.'s Mot. to Compel Sullivan ¶ 4; R. 396, Def.'s Mot. to Compel Drumgould ¶ 4.) In 2006, Sullivan was convicted of giving a material, false statement to the FBI in connection with the " corrupt and farreaching scheme." See United States v. Sorich, 523 F.3d 702, 705-06 (7th Cir.2008). Drumgould was granted immunity by federal prosecutors and testified as a witness at that trial. (R. 396, Def.'s Mot. to Compel Drumgould ¶ 4.)

In the present case, Hillmann asserts various state and federal law claims related to the termination of his employment with the City. (R. 125, Third Am. Compl.) On October 18, 2012, Sullivan was deposed by Hillmann and the City in the present case. (R. 387, Pl.'s Mot. to Compel Sullivan ¶ 1.) Sullivan asserted his Fifth Amendment right against self-incrimination and refused to answer every substantive question he was asked. (R. 387, Pl.'s Mot. to Compel Sullivan, Ex. A, Tr. Sullivan Dep.) On November 13, 2012, Drumgould was deposed by Hillmann and the City. (R. 409, Pl.'s Mot. to Compel Drumgould ¶ 1.) Drumgould also asserted his Fifth Amendment right against self-incrimination and refused to answer every substantive question he was asked. (R. 409, Pl.'s Mot. to Compel Drumgould, Ex. A, Tr. Drumgould Dep.) Deponents argue that the deposition questions seek to link them to conspiracies that might result in future criminal prosecutions. (R. 422, Sullivan's Resp. at 2-3; R. 423, Drumgould's Resp. ¶¶ 6-7.) Drumgould also argues that if he were compelled to answer the deposition questions posed and his answers were found to be inconsistent with his prior immunized testimony, he would then be vulnerable to a perjury prosecution and would face waiver issues. (R. 423, Drumgould's Resp. ¶¶ 8-9.)

LEGAL STANDARD

The Fifth Amendment privilege against compelled self-incrimination " must be accorded liberal construction." Hoffman v. United States, 341 U.S. 479, 486, 71 S.Ct. 814, 95 L.Ed. 1118 (1951). The privilege " not only extends to answers that would in themselves support a conviction

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under a federal criminal statute but likewise embraces those which would furnish a link in the chain of evidence needed to prosecute the claimant for a federal crime." Id. The right to assert the Fifth Amendment privilege depends upon the possibility, not the likelihood of prosecution. In re Folding Carton Antitrust Litig., 609 F.2d 867, 872 (7th Cir.1979) (per curiam). A witness is not required to prove the possibility of prosecution, so whenever " there is any basis for a prosecution, the Fifth Amendment protection applies." In re Corrugated Container Antitrust Litig., 661 F.2d 1145, 1152 (7th Cir.1981), aff'd sub nom. Pillsbury Co. v. Conboy, 459 U.S. 248, 103 S.Ct. 608, 74 L.Ed.2d 430 (1983). The possibility of prosecution is foreclosed only by the existence of an absolute bar to prosecution as indicated by a statute of limitations, immunity, or double jeopardy. Folding Carton, 609 F.2d at 872. " [T]o the extent any doubt exists regarding the validity of the claimed Fifth Amendment privilege, the benefit of that doubt must go to the witness asserting the privilege." Corrugated Container, 661 F.2d at 1151. A court must determine whether claims of privilege are valid on a question-by-question basis. Folding Carton, 609 F.2d at 873 (quoting R ...


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