United States District Court, N.D. Illinois, Eastern Division
CHARLES P. KOCORAS, District Judge.
This matter comes before the Court on the motion of third party witness Joe Letke ("Letke") to reconsider this Court's previous May 9, 2014 order ("Order") requiring compliance with an outstanding records subpoena. For the following reasons, the Letke's motion is granted and the Order is vacated.
On April 10, 2014, the Defendants Village of Glenwood ("Village"), Kerry Durkin and Kevin Welsh (collectively "Defendants") filed a motion to compel Letke to provide the numerous documents specified in their records subpoena. Letke did not respond to Defendants' motion to compel. On May 9, 2014, this Court granted Defendants' motion to compel Letke to comply with the terms of the asserted records subpoena. See Glenwood Halsted LLC v. Village of Glenwood, et al., No. 11 C 6772, 2014 (N.D. Ill. May 9, 2014). On May 15, 2014, Letke moved for reconsideration of this Court's Order based on his Instanter Motion in opposition of Defendants' motion to compel.
The underlying facts have already been set forth in our prior opinion. Accordingly, only the facts relevant to the instant motion will be discussed. On September 26, 2011, Plaintiff Glenwood Halsted LLC ("Glenwood Halsted LLC") filed suit against the Defendants alleging that in 2008 the Defendants schemed to diminish the value of a shopping complex owned by Glenwood Halsted LLC. It is alleged that the scheme began when Glenwood Halsted LLC sought the Village's approval and cooperation to establish Tax Increment Financing ("TIF") in an attempt to improve the functionality of Glenwood Halsted LLC's shopping complex. Letke, an accountant, was hired by Glenwood Halsted LLC to assist in creating a TIF proposal to present to the Defendants.
Following the filing of the instant case, Letke was deposed by the Defendants on December 18, 2013. Letke testified about his involvement in the development of the TIF proposal, his familiarity with the shopping complex, his dealings with the Village, his work on other municipality TIFs, and his interaction with the owners of Glenwood Halsted LLC. Letke also named several documents that related to the topics he discussed that he may have in his possession.
However, in the midst of the deposition, Letke fell ill and the deposition ended prematurely. Subsequent attempts by the Defendants to reschedule the remaining time allotted for Letke's deposition were not fruitful. On January 16, 2014, the Defendants issued a records subpoena to Letke requesting numerous documents. Initially Letke's attorney, Lou Karnezis ("Karnezis"), accepted the subpoena and informed the Defendants that he would provide the requested documents by the end of the week. At the time of Karnezis' acquiesce, he was unaware that Letke had hired a criminal defense attorney Dean Polales ("Polales"), to assist in dealing with a broad criminal investigation. On January 30, 2014, Polales met with a federal prosecutor to discuss an ongoing federal grand jury investigation into Letke's involvement with several municipal TIF projects. The criminal investigation focused on Letke's dealings with the now defunct real estate development of the Harvey Hotel, in Harvey, Illinois. In light of the now apparent criminal investigation, the documents set forth in the records subpoena were never produced and eventually Karnezis informed the Defendants that Letke was invoking his Fifth Amendment privilege.
The Fifth Amendment privilege against self-incrimination may be invoked in any criminal or civil matter when an individual's testimony creates a possibility of criminal prosecution. Kastigar v. United States, 406 U.S. 441, 444 (1972). The privilege is applicable in response to specific inquires that call for an admission of a crime or objectively create "some tendency" to subject the individual to criminal liability. In re High Fructose Corn Syrup Antitrust Litigation, 295 F.3d 651, 663-64 (7th Cir. 2002). When the court is considering the right against self-incrimination, the privilege should be construed broadly in favor of the right. In re Corrugated Container Antitrust Litigation, 661 F.2d 1145, 1150 (7th Cir. 1981).
The parties contest whether: (1) Letke waived his Fifth Amendment privilege by testifying at the Defendants' December 2013 deposition; and (2) whether the production of the documents sought is protected by the Fifth Amendment. Each issue will be dealt with in turn.
The Defendants contend that Letke waived his Fifth Amendment privilege by testifying in the December 2013 deposition for five hours. The Defendants posit that Letke must have or should have known that he was a target of a criminal investigation prior to the deposition due to his numerous problematic dealings with other municipalities and an investigative newspaper article which was critical of the failed development of the Hotel Harvey project. In choosing to proceed with the deposition, Letke waived his Fifth Amendment protections by disclosing incriminating evidence.
To support their position, the Defendants argue that the facts of Rogers v. United States, 340 U.S. 367 (1951) are analogous to Letke's prior disclosure of information and subsequent invocation of the Fifth Amendment. In Rogers, Jane Rogers brought certiorari after being found in contempt based on her refusal to answer questions posed by a grand jury and the court. Rogers, 340 U.S. at 368. Rogers testified before a federal grand jury that she had "held the position of Treasurer of the Communist Party of Denver until January, 1948, and that, by virtue of her office, she had been in possession of the records and testified that she had turned them over to another. But [after her testimony ended and she returned the following day to testify] she refused to identify the person to whom she had given the Party's books, " asserting her Fifth Amendment privilege against self-incrimination. Id. at 368-370. The Court held that Rogers could not justify her refusal to answer questions regarding the identity of the person to whom she turned over the Party's books on the ground of privilege against self-incrimination because this testimony would be no more incriminating than her previous voluntary disclosure. Id. at 374-375. Although Rogers stands for the proposition that an individual cannot disclose incriminating facts and then rely on the Fifth Amendment to avoid disclosing further details, Letke's deposition testimony and subsequent invocation of the Fifth Amendment is distinct. In Rogers, the testimony of the witness was given within the confines of a grand jury criminal investigation, where a determination of criminal activity was being gauged. Letke's testimony on the other hand, was given in the confines of a deposition, in a civil case that he was not a party to, concerning work he performed for Glenwood Halsted LLC. The nature of the forum where the testimony was given is pivotal. Letke never gave ...