Northern District of Illinois Recognizes Employee-Union Representative Privilege under Federal Common Law

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Andrea J. Chiller | Bloomberg Law Bell v. Village of Streamwood, No. 10-cv-03263, 2011 BL 209990 (N.D. Ill. Aug. 15, 2011) Ronald Bell claimed that Village of Streamwood police officer James Mandarino used excessive force against him during a traffic stop and filed a civil rights action against Mandarino, Streamwood, and several others under 42 U.S.C. § 1983. During the course of discovery, plaintiffs took the deposition of Ryan Ruthenberg, Mandarino's union representative. Ruthenberg refused to answer many of the questions, asserting that the information was protected from disclosure under the Illinois state law-based union agent privilege. Following the deposition, plaintiffs filed a motion to compel his testimony. As the Court noted, the motion "raise[d] a question of first impression regarding whether an employee-union representative privilege should be adopted as a matter of federal common law in connection with a federal civil rights lawsuit." When an action arises under federal law, as with the instant case, questions of privilege are governed by federal common law. Where federal law has not yet recognized a particular state law privilege, the court must determine whether the federal common law should be expanded to recognize it. The Court found that "[t]he nature of a union agent's role suggests a need to protect some communications between union agents and union members." In the context of disciplinary hearings, union representatives serve several roles, many of which are not unlike those of an attorney, such as representing the union member during hearings and investigations. During the course of this relationship, union members will often disclose confidential information to the representative. The Court found the union members' expectation of confidentiality to be critical, observing that they would be less likely to fully disclose all necessary information to their representatives if it could later be subject to discovery, which would impede the representatives' ability to fully advise and represent the union members. Accordingly, the Court held that an employee-union representative privilege exists under federal common law when the communications are "made (1) in confidence; (2) in connection with 'representative' services relating to anticipated or ongoing disciplinary proceedings; (3) between an employee and his union representative; (4) where the union representative is acting in his or her official representative capacity."

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