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Breuder v. Board of Trustees of Community College District No. 502

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

July 26, 2019

Robert L. Breuder, Plaintiff,
v.
Board of Trustees of Community College District No. 502, DuPage County, Illinois, et al. Defendants.

          Hon. Andrea R. Wood Judge.

          MEMORANDUM OPINION AND ORDER

          Jeffrey Cummings Magistrate Judge.

         Plaintiff Robert Breuder, who served as the President of the College of DuPage from 2009 until October 20, 2015, brings this lawsuit against defendants alleging claims concerning due process violations, breach of contract, defamation, and civil conspiracy. Certain defendants have, in turn, filed counterclaims against plaintiff alleging breach of contract, breach of fiduciary duty, and conversion. At the July 18, 2019 hearing, this Court addressed a number of contested discovery matters including: (1) whether the Illinois Open Meetings Act (ILCS 120/2.06) and the attorney-client privilege bar plaintiff from obtaining in discovery the minutes and audio recordings from the closed executive meetings of defendant Board of Trustees of Community College District No. 502 (hereinafter, the “College”); (2) the nature of the College's legal duty with respect to obtaining responsive documents that are in possession of their outside legal counsel; (3) whether plaintiff is entitled to discovery of documents concerning the retention of the College's outside counsel; and (4) whether plaintiff is entitled to force the College to gather, review, and produce responsive documents from nine individual custodians in addition to the over twenty custodians from whom the College has already agreed to produce documents.

         The parties outlined their discovery disputes in their March 14 and May 31, 2019 joint discovery status reports, and they further discussed the matters during the June 6, 2019 status hearing. In its prior orders of June 6 and June 18, 2019, the Court directed the parties to provide the Court with submissions regarding, inter alia, [1] the four contested issues set forth above. The Court also invited the College's outside legal counsel - - the law firms of Rathje Woodward, LLC and Schuyler, Roche & Crisham, P.C. (hereinafter, the “Law Firms”) - - to provide submissions with respect to the third issue. After reviewing the submissions from the parties and the Law Firms and discussing the matters at length with counsel during the July 18 hearing, the Court rules as follows on the contested issues.

         I. The Illinois Open Meetings Act does not shield the minutes and audio recordings from the College's closed executive meetings from discovery.

         Plaintiff seeks the production of minutes and audio recordings from the College's closed executive meetings because he believes that these materials will provide evidence regarding defendants' motives and reasons for terminating his employment contract. Specifically, plaintiff seeks discovery of the minutes and audio recordings from the College's closed meetings on May 14, June 11 and 25, July 16 and 30, August 13 and 20, September 17 and 28, and October 20 of 2015 during which he believes that the College's “internal investigation” regarding him was likely discussed. Plaintiff also seeks discovery of the audio recordings from the College's closed meetings on February 20, March 6, June 26, September 25, November 6 and 20, and December 18 of 2014, and January 22, 2015 during which he believes that his “duties, responsibilities and conditions of employment, ” “performance and goals, ” and/or “contract” were discussed. Defense counsel indicated that these meetings typically lasted an hour, the meeting minutes are readily available, and that none of the audio recordings have been transcribed.

         The College asserts that plaintiff's effort to seek discovery of the minutes and recordings is barred by the Illinois Open Meetings Act (“Act”), 5 ILCS 120/2.06. This Court disagrees, and it finds that a more nuanced analysis is required to balance the need to discover the truth against the policy sought to be furthered by the Act. The court's discussion in Mulligan v. Village of Riverside, No. 11 CV 8200, 2013 WL 1340581, at *2 (N.D.Ill. April 1, 2013), is instructive:

Under the Illinois Open Meetings Act, subject to certain exceptions not applicable here, ‘the verbatim record of a meeting closed to the public shall not be open for public inspection or subject to discovery in any administrative or judicial proceeding.' 5 Ill. Comp. Stat. §120/2.06(e). The open meetings privilege is a state law privilege not found in federal common law. Kodish v. Oakbrook Terrace Fire Protec. Dist., 235 F.R.D. 447, 451-52 (N.D.Ill. 2006). When considering whether the federal common law should be expanded to include a state privilege, a ‘strong policy of comity between state and federal sovereignties impels federal courts to recognize state privileges where this can be accomplished at not substantial cost to federal substantive and procedural policy.' Mem. Hosp. for McHenry Co. v. Shadur, 664 F.2d 1058, 1061 (7th Cir. 1981). ‘The court should weigh the need for truth against the importance of the relationship or policy sought to be furthered by the privilege, and the likelihood that recognition of the privilege will in fact protect that relationship in the factual setting of the case.' Id., at 1061-62 (internal citations and quotations omitted).

         Several other courts from this District have applied a similar analysis when resolving discovery disputes that touch upon the scope of the Act's privileges. See, e.g., Gibbons v. Village of Sauk Village, No. 15 CV 4950, 2016 WL 7104255, at *2-3 (N.D.Ill.Dec. 6, 2016) (finding that plaintiff's “need to ascertain the motive and basis for the [defendant's] decision to terminate her outweighs any policy furthered by [Open Meetings Act]”); Sandholm v. Dixon Public School Dist. No. 170, No. 09 CV 50119, 2010 WL 899032, at *2 (N.D.Ill. Mar. 10, 2010) (holding that the court would apply the Act's privilege only “if the importance of the policy furthered by the privilege outweigh[ed] the need for truth”); Sronkoski v. Schaumburg School Dist., No. 54, No. 08 CV 721, 2009 WL 1940779, at *3-4 (N.D.Ill. July 1, 2009) (ordering school district to turn over unredacted minutes and the audio recording of closed session board meetings after concluding that plaintiff's “need for the closed-session materials” outweighed the policy furthered by the Act); Hall v. Sterling Park Dist., No. 08 CV 50116, 2011 WL 1748710, at *9 (N.D.Ill. May 4, 2011) (citing Sronkoski and ordering that the information concerning plaintiff's termination outweighed the policies furthered by the Act); Kodish, 235 F.R.D. at 452 (refusing to extend the federal common law to encompass the open meetings privilege where plaintiff had to “ascertain the motive and basis for the Fire District's decision to terminate him”).[2]

         To allow for an informed balancing of the interests of the parties, this Court finds that it is appropriate to conduct an in camera review of the meeting minutes and the audio recordings. See, e.g., Hall, 2011 WL 1748710, at *9. After its in camera review, consistent with the caselaw cited above, this Court will order the production of the minutes and the audio recordings to the extent that they provide evidence concerning plaintiff's work performance, the “internal investigation, ” and the motive and basis of plaintiff's termination and are not otherwise protected by the attorney-client privilege. If, on the other hand, any of the minutes and audio recordings “offer little, if anything, to further [p]laintiff's claims, ” this Court will be inclined to find that the importance of the policy underlying the Act's privilege outweighs plaintiff's need for the information contained within those particular minutes and recordings. See Sandholm, 2010 WL 899032, at *2.

         To minimize the burden on the College and to facilitate this Court's in camera review, the Court directs the parties to meet and confer regarding the list of meetings identified by plaintiff's counsel to eliminate the meetings that relate to issues that are irrelevant to the subject matter of this lawsuit. (Defense counsel has expressed his belief that certain meetings identified by plaintiff concern non-pertinent issues.) The Court also encourages the parties to reach an agreement on a process for preparing transcripts for the audio recordings from the pertinent meetings and for sharing the transcription costs. The Court expects for the parties to be prepared to discuss these matters, the timetable for producing the meeting minutes and the transcripts, and any other logistical issues concerning the in camera review at the August 22, 2019 status hearing.

         II. The Court will conduct an in camera review of the minutes and audio recordings from the College's closed executive meetings to determine whether any portions of the discussions are protected by the attorney-client privilege.

         As the Seventh Circuit has held, the attorney-client privilege applies “(1) where legal advice of any kind is sought (2) from a professional legal advisor in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal advisor, (8) except the protection can be waived.” United States v. Evans, 113 F.3d 1457, 1461 (7th Cir. 1997) (internal quotation marks omitted). The College asserts that the attorney-client privilege protects the verbatim recordings and minutes from the College's closed executive meetings from disclosure because attorneys for the College were always present at these closed sessions. However, the presence of the College attorneys at these meetings does not - - in and of itself - -suffice to establish that all communications during these meetings are protected by the attorney-client privilege.

         In Kodish, supra, for example, an attorney attended a closed session meeting of defendants' board where the decision to terminate plaintiff was discussed. 235 F.R.D. at 453. The court held that “the mere attendance of an attorney at [the] meeting d[id] not render everything said or done at the meeting privileged.” Id. Indeed, the board's discussions regarding plaintiff's work history, the reasons for defendants' decision to terminate him, and defendants' expectations from an employee were not privileged and the court found that only the “conversations among the board members and their attorney about potential litigation risk and legal strategy” were privileged. Id., at 453-54; see also Smith v. Board of Education of the City of Chicago, No 17 CV 7034, 2019 WL 2525890, at *2 (N.D.Ill. June 19, 2019) (“[D]ecisions concerning the discipline and ...


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