United States District Court, N.D. Illinois, Eastern Division
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.
MEMORANDUM OPINION AND ORDER
I. SCHENKIER, UNITED STATES MAGISTRATE JUDGE
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.). 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.). 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.
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).
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).
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.
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). 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. . Even so, "[p]arties to a matter may
communicate directly with each other[.]" Id.
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. Specifically, plaintiffs assert that:
• on or about December 27, 2018, former defendant Mr.
Alesia talked to Mr. Hernandez and pressured him to drop the
• 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.
Mot. at 3-5; doc. # 71-6: Hernandez Decl., ¶¶ 2-4;
doc. # 71-7: Termini Decl, ¶ 2). 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
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
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.
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.
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). 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
this constitutes evidence that Corporation Counsel violated
either Rule 3.4 or Rule 4.4. 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). 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.
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). 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).
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).
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, ¶ B.3 (Dec. 1, 2018) (requiring the