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Hernandez v. Helm

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

November 12, 2019

HECTOR HERNANDEZ and CHARLES TERMINI, individually, and on behalf of all others similarly-situated, Plaintiffs,
WILLIAM HELM, in his individual capacity; KEVIN MARTIN, in his individual capacity; and the CITY OF CHICAGO, as a municipal corporation and indemnitor, Defendants.

          Lee District Judge



         Plaintiffs Hector Hernandez and Charles Termini work for the City of Chicago's Department of Aviation ("DOA") as motor truck drivers. They have brought claims under 42 U.S.C. § 1983 and the Illinois Whistleblower Act, as well as other related claims, against the City of Chicago ("the City"), William Helm, and Kevin Martin (see doc. #13: Am. Compl.).[1] On September 11, 2019, defendants moved to disqualify plaintiffs' lead attorney for an alleged ethical violation (doc. # 67: Defs.' Mot.). Five days later, plaintiffs countered with their own motion to disqualify "Corporation Counsel" for alleged ethical violations, which was followed shortly by a supplemental filing (doc. # 71: Pls.' Mot.; doc. # 76: Pls.' Suppl.).[2] Both motions are fully briefed. As we stated at the October 29, 2019 status hearing, an evidentiary hearing is necessary to resolve the issues raised in defendants' motion to disqualify (doc. # 100). Thus, this Memorandum Opinion and Order addresses only plaintiffs' motion to disqualify Corporation Counsel. For the following reasons, we deny plaintiffs' motion.[3]


         We have broad discretion in deciding whether to disqualify a party's attorneys. Ross v. United States, 910 F.2d 1422, 1432 (7th Cir. 1990); Schloetter v. Railoc oflnd, Inc., 546 F.2d 706, 710 (7th Cir. 1976). In exercising this discretion, we are mindful that disqualification "is a drastic measure which courts should hesitate to impose except when absolutely necessary." Freeman v. Chi. Musical Instrument Co., 689 F.2d 715, 721 (7th Cir. 1982). "Because disqualification causes a disruptive, immediate, and measurable effect on one party in pending litigation" and because motions to disqualify "can be misused as techniques of harassment," courts view such motions with extreme caution. Id. at 722; alfaCTP Sys., Inc. v. Nierman, No. 15-cv-9338, 2016 WL 687281, at *4 (N.D. Ill. Feb. 19, 2016).

         Nonetheless, disqualification may be appropriate when an attorney violates his or her ethical duties. Harris Davis Rebar, LLC v. Structural Iron Workers Local Union No. 1, Pension Tr. Fund, No. 17 C 6473, 2019 WL 447622, at *3 (N.D. Ill. Feb. 5, 2019). Courts in this district follow a two-step analysis for determining whether an alleged ethical violation warrants the drastic measure of disqualification: (1) we consider whether there is an ethical violation, and, if so (2) we determine whether disqualification is the appropriate remedy. E.g., Freeman Equip., Inc. v. Caterpillar, Inc., 262 F.Supp.3d 631, 634 (N.D. Ill. 2017); Guillen v. City of Chicago, 956 F.Supp. 1416, 1421 (N.D. Ill. 1997). The moving party "bears a heavy burden of proving the facts required for disqualification." Dahleh v. Mustafa, No. 17 C 8005, 2018 WL 1167675, at *1 (N.D. Ill. Mar. 5, 2018).


         As a threshold matter, plaintiffs' motion erroneously relies upon the Illinois Rules of Professional Conduct ("Illinois Rules"), when it is the American Bar Association's Model Rules of Professional Conduct ("ABA Model Rules") that govern the conduct of attorneys practicing before this Court. N.D.Ill. L.R. 83.50; Nieves v. OPA, Inc., 948 F.Supp.2d 887, 894-95 (N.D. Ill. 2013). To the extent an attorney is admitted to practice in Illinois, the Illinois Rules only come into play for a "matter not addressed by the ABA Model Rules or for which the ABA Model Rules are inconsistent with" the Illinois Rules. N.D.Ill. L.R. 83.50. Plaintiffs have not explained why the matters they raise are not addressed by the ABA Model Rules or are matters for which the ABA Model Rules are inconsistent with the Illinois Rules. Thus, we evaluate plaintiffs' arguments in light of the ABA Model Rules.


         Plaintiffs first contend that Corporation Counsel have violated ABA Model Rule 4.2 (Pls.' Mot. at 3-6). Rule 4.2 states, in relevant part, that "[i]n representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter[.]" Model Rules of Prof 1 Conduct r. 4.2 (Am. Bar Ass'n 9th ed. 2019).[4] Comment four to Rule 4.2 goes on to state that "[a] lawyer may not make a communication prohibited by this Rule through the acts of another." Id., cmt. [4]. Even so, "[p]arties to a matter may communicate directly with each other[.]" Id.

         Plaintiffs do not contend that Corporation Counsel have themselves directly communicated with plaintiffs. Rather, plaintiffs contend that Corporation Counsel are violating Rule 4.2 by communicating with plaintiffs through their DOA co-workers.[5] Specifically, plaintiffs assert that:

• on or about December 27, 2018, former defendant Mr. Alesia talked to Mr. Hernandez and pressured him to drop the lawsuit;
• on or about July 10, 2019, Mr. Thome told Mr. Termini that defendant Mr. Helm wanted him to stop the investigation and end the lawsuit; and
• on or about July 16, 2019, Mr. Rivera told Mr. Hernandez that Mr. Helm said that Mr. Hernandez would be rewarded if he dropped the lawsuit.

         (Pls.' Mot. at 3-5; doc. # 71-6: Hernandez Decl., ¶¶ 2-4; doc. # 71-7: Termini Decl, ¶ 2).[6] Then, during a conference call on or about July 19, 2019, plaintiffs' counsel informed Corporation Counsel about this "ongoing direct contact" between plaintiffs and their co-workers (Pls.' Mot. at 5; Termini Decl., ¶ 3). According to plaintiffs, Corporation Counsel responded to this information "with disdain, incredulity, and ridicule," and the behavior of plaintiffs' co-workers has since continued (Pls.' Mot. at 5; Termini Decl., ¶ 3). For instance, plaintiffs assert that on or about August 8, 2019-a few weeks after the July 19 conference call-Mr. Thome told Mr. Termini that Mr. Helm promised to take care of Mr. Termini if he would drop the lawsuit and that there would always be a place in the Training Section for Mr. Termini if he did so (Pls.' Mot. at 5; Termini Decl., ¶ 4). Additionally, plaintiffs assert that Mr. Hernandez became aware on September 19 and 20, 2019 that his co-workers were circulating a "meme" labeling him as corrupt, dishonest, a liar, and a "beefer" (Pls.5 Suppl. at 1-2).

         Missing from these assertions is any evidence that Corporation Counsel directed any of plaintiffs' co-workers to talk to them about anything pertaining to this lawsuit or to engage in any of the aforementioned conduct. At best, plaintiffs have shown that in January 2019, Corporation Counsel knew that plaintiffs alleged that Mr. Alesia pressured Mr. Hernandez the previous month to drop the lawsuit (see Am. Compl, ¶¶ 74-76) and that in July 2019, Corporation Counsel were aware of additional alleged encounters between plaintiffs and their co-workers (Termini Decl., ¶ 3). This awareness, however, does not translate into instructions or encouragement from Corporation Counsel to plaintiffs' co-workers to communicate about the litigation with plaintiffs. In short, plaintiffs have provided no evidence suggesting that Corporation Counsel has violated Model Rule 4.2 by communicating with them through others.


         Next, plaintiffs claim that Corporation Counsel violated Rules 3.4 and 4.4 by intimidating witnesses in this case (Pls.' Mot. at 6-8). Under ABA Model Rule 3.4, a lawyer is prohibited from assisting "a witness to testify falsely," and under ABA Model Rule 4.4, a lawyer shall not, in representing a client, "use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person." Model Rules of Prof'l Conduct rr. 3.4(b), 4.4(a). Plaintiffs assert that Corporation Counsel have intimidated them and their attorneys, as well as Nick Thome.


         Plaintiffs' first assertion-that Corporation Counsel have intimidated them and their attorneys-relies upon the allegations of "direct contact" we addressed in section II. A and other alleged "specific acts of intimidation that have occurred throughout this case" (Pls.' Mot. at 7), including the circulated meme described in plaintiffs' September 21 supplemental filing (see Pls.' Suppl.). But plaintiffs have presented zero proof that Corporation Counsel are directing or otherwise encouraging plaintiffs' co-workers to engage in the complained-of acts. Put another way, plaintiffs provide no justification for attributing the complained-of acts to Corporation Counsel. Thus, the alleged actions of plaintiffs' co-workers do not provide a basis for us to find that Corporation Counsel violated any of the ethical duties laid out in Model Rules 3.4 and 4.4.


         Plaintiffs' second assertion focuses on Mr. Thome. In connection with defendants' motion to disqualify plaintiffs' counsel, Mr. Thome provided a September 10, 2019 declaration about communications he allegedly had with plaintiffs' lead counsel (which are central to defendants' motion to disqualify) (see doc. # 67-2, at 4-11: Thome Decl. & Exs.). Mr. Termini contends that Mr. Thome approached him on or about September 9, 2019 and stated, in effect, "that 'the Law Department was harassing him to sign a document,' that he had 'received numerous phone calls from the Law Department about the document,' that he was 'uncomfortable signing the document,' [and that] 'he was scared and did not know what to do'" (Termini Decl., ¶ 5).[7] Mr. Termini also states that Mr. Thome said that he (Mr. Thome) was interviewed in August 2019 by the City's Office of Inspector General ("OIG") about allegations related to receiving and selling Cubs tickets (Id., ¶ 6). According to Mr. Termini, Mr. Thome appeared concerned and anxious in the workplace during August and September 2019 (Id.).

         None of this constitutes evidence that Corporation Counsel violated either Rule 3.4 or Rule 4.4.[8] For one thing, Rule 3.4(b) prohibits the procurement of false testimony, and, yet, plaintiffs' motion does not direct us to any portion of Mr. Thome's September 10 declaration that is purportedly inaccurate or untrue (Pls.' Mot. at 6-7).[9] Moreover, calling Mr. Thome an unspecified number of times so that he can sign a declaration does not "violate [his] legal rights." See Model Rules of Prof 1 Conduct r. 4.4(a). Nor is there any indication that Corporation Counsel called or attempted to contact Mr. Thome in order "to embarrass, delay or burden" him. Id. There is also no indication that Corporation Counsel knew about Mr. Thome's alleged discomfort and fear; thus, there is no basis for us to find that Corporation Counsel's actions were any less proper in the face of these alleged emotions. And although being interviewed by the OIG might reasonably cause Mr. Thome to be concerned or anxious, there is no evidence that the OIG interviews were conducted for an improper purpose, such as to make Mr. Thome more pliable for the submission of a declaration, or that the interviews were coordinated in any way with Corporation Counsel's defense of this litigation. In any event, the Model Rules do not prohibit a lawyer from obtaining information from a non-party witness. Mr. Thome's alleged stress did not make the Corporation Counsel's interactions with him improper.


         Moving on, plaintiffs argue that Corporation Counsel should be disqualified based on their failure to preserve a videotape of an alleged December 26, 2018 interaction between Mr. Hernandez and Mr. Alesia (Pls.' Mot. at 8-9).[10] Plaintiffs assert that this failure (1) violates ABA Model Rule 3.4, which prohibits a lawyer from "unlawfully alter[ing], destroy[ing] or conceal[ing] a document or other material having potential evidentiary value[, ]" Model Rules of Prof 1 Conduct r. 3.4(a); and (2) "constitutes at least negligent, if not intentional, spoliation of evidence" (Pls.' Mot. at 8-9). Defendants agree that the December 26 videotape no longer exists-it was apparently overwritten after 30 days-but contend that they never had a duty to preserve the videotape in the first place (doc. # 78: Defs.' Resp., at 6-7). Defendants further contend that because the security videos related to this case do not contain audio, the December 26 videotape would not have assisted plaintiffs in defending against defendants' evidence regarding what Mr. Hernandez said during the alleged interaction (Id. at 7).

         The Seventh Circuit has recognized that "Illinois law imposes no general duty to preserve evidence," Schaefer v. Universal Scaffolding & Equipment, LLC, 839 F.3d 599, 609 (7th Cir. 2016), but we disagree with defendants' attempt to apply that proposition here (see Defs.' Resp. at 6). The "duty to preserve documents and other information that may be relevant" is fundamentally ingrained in our system of federal litigation. Danis v. USN Commc'ns, Inc., No. 98 C 7482, 2000 WL 1694325, at * 1 (N.D. Ill. Oct. 20, 2000). "A party has a duty to preserve evidence over which it has control and reasonably knows or could foresee would be material to" litigation. Bryant v. Gardner, 587 F.Supp.2d 951, 967-68 (N.D. Ill. 2008); see also Guzman v. Jones, 804 F.3d 707, 713 (5th Cir. 2015) ("A party's duty to preserve evidence comes into being when the party has notice that the evidence is relevant to the litigation or should have known that the evidence may be relevant"). As soon as "a party first reasonably foresees that litigation is on the horizon, it is required to suspend its ordinary policies governing how information is retained or destroyed and put into place a litigation hold to preserve" all evidence discoverable under Federal Rule of Civil Procedure 26. Oleksy v. Gen. Elec. Co., No. 06 C 1245, 2011 WL 3471016, at *2 (N.D. Ill. Aug. 8, 2011).

         The missing December 26 videotape was discoverable and should have been preserved. Indeed, Mr. Alesia's attorney indicated that the videotape would have been part of his production required by the Mandatory Initial Discovery Pilot Project ("MIDP") if it had not been recorded over (doc. #71-2: Pls.' Mot. Ex. 2, at 2), which evinces the video's potential relevance. See Am. MIDP Standing Order, ΒΆ B.3 (Dec. 1, 2018) (requiring the ...

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