Hillmann v. City of Chicago

918 F. Supp. 2d 775, 2013 WL 182795, 2013 U.S. Dist. LEXIS 7050
CourtDistrict Court, N.D. Illinois
DecidedJanuary 17, 2013
DocketNo. 04 C 6671
StatusPublished
Cited by4 cases

This text of 918 F. Supp. 2d 775 (Hillmann v. City of Chicago) is published on Counsel Stack Legal Research, covering District Court, N.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hillmann v. City of Chicago, 918 F. Supp. 2d 775, 2013 WL 182795, 2013 U.S. Dist. LEXIS 7050 (N.D. Ill. 2013).

Opinion

MEMORANDUM OPINION AND ORDER

RUBEN CASTILLO, District Judge.

Plaintiff Robert Hillmann, and Defendant City of Chicago (“City”), have each moved to compel John Sullivan and Jack Drumgould (collectively, “Deponents”) to respond to substantive deposition questions to which Sullivan and Drumgould invoked the Fifth Amendment. For the reasons set forth herein, the motions are granted.

BACKGROUND1

In 2005, Deponents worked for the City and were indicted on charges related to a political hiring scheme in the Department of Streets and Sanitation. (R. 389, Def.’s Mot. to Compel Sullivan ¶ 4; R. 396, Def.’s Mot. to Compel Drumgould ¶ 4.) In 2006, Sullivan was convicted of giving a material, false statement to the FBI in connection with the “corrupt and farreaching scheme.” See United States v. Sorich, 523 F.3d 702, 705-06 (7th Cir.2008). Drumgould was granted immunity by federal prosecutors and testified as a witness at that trial. (R. 396, Def.’s Mot. to Compel Drumgould ¶ 4.)

In the present case, Hillmann asserts various state and federal law claims related to the termination of his employment with the City. (R. 125, Third Am. Compl.) On October 18, 2012, Sullivan was deposed by Hillmann and the City in the present case. (R. 387, Pl.’s Mot. to Compel Sullivan ¶ 1.) Sullivan asserted his Fifth Amendment right against self-incrimination and refused to answer every substantive question he was asked. (R. 387, Pl.’s Mot. to Compel Sullivan, Ex. A, Tr. Sullivan Dep.) On November 13, 2012, Drumgould was deposed by Hillmann and the City. (R. 409, Pl.’s Mot. to Compel Drumgould ¶ 1.) Drumgould also asserted his Fifth Amendment right against self-incrimination and refused to answer every substantive question he was asked. (R. 409, Pl.’s Mot. to Compel Drumgould, Ex. A, Tr. Drumgould Dep.) Deponents argue that the deposition questions seek to link them to conspiracies that might result in future criminal prosecutions. (R. 422, Sullivan’s Resp. at 2-3; R. 423, Drumgould’s Resp. ¶¶ 6-7.) Drumgould also argues that if he were compelled to answer the deposition questions posed and his answers were found to be inconsistent with his prior immunized testimony, he would then be vulnerable to a perjury prosecution and would face waiver issues. (R. 423, Drumgould’s Resp. ¶¶ 8-9.)

LEGAL STANDARD

The Fifth Amendment privilege against compelled self-incrimination “must be accorded liberal construction.” Hoffman v. United States, 341 U.S. 479, 486, 71 S.Ct. 814, 95 L.Ed. 1118 (1951). The privilege “not only extends to answers that would in themselves support a conviction [778]*778under a federal criminal statute but likewise embraces those which would furnish a link in the chain of evidence needed to prosecute the claimant for a federal crime.” Id. The right to assert the Fifth Amendment privilege depends upon the possibility, not the likelihood of prosecution. In re Folding Carton Antitrust Idtig., 609 F.2d 867, 872 (7th Cir.1979) (per curiam). A witness is not required to prove the possibility of prosecution, so whenever “there is any basis for a prosecution, the Fifth Amendment protection applies.” In re Corrugated Container Antitrust Litig., 661 F.2d 1145, 1152 (7th Cir.1981), aff'd sub nom. Pillsbury Co. v. Conboy, 459 U.S. 248, 103 S.Ct. 608, 74 L.Ed.2d 430 (1983). The possibility of prosecution is foreclosed only by the existence of an absolute bar to prosecution as indicated by a statute of limitations, immunity, or double jeopardy. Folding Carton, 609 F.2d at 872. “[T]o the extent any doubt exists regarding the validity of the claimed Fifth Amendment privilege, the benefit of that doubt must go to the witness asserting the privilege.” Corrugated Container, 661 F.2d at 1151. A court must determine whether claims of privilege are valid on a question-by-question basis. Folding Carton, 609 F.2d at 873 (quoting Rogers v. United States, 340 U.S. 367, 374, 71 S.Ct. 438, 95 L.Ed. 344 (1951)). This inquiry should focus “on what a truthful answer might disclose, rather than on what information is expected by the questioner.” Zicarelli v. NJ State Comm’n of Investigation, 406 U.S. 472, 480, 92 S.Ct. 1670, 32 L.Ed.2d 234 (1972).

ANALYSIS

Hillmann and the City argue that Deponents have asserted the Fifth Amendment too broadly. (R. 427, Pl.’s Reply to Sullivan at 1-2; R. 428, Def.’s Reply to Sullivan at 1-5; R. 426, Pl.’s Reply to Drumgould at 1-2; R. 429, Def.’s Reply to Drumgould at 1-5.) They contend that many of the deposition questions do not create any reasonable link to potential criminal prosecutions. (R. 428, Def.’s Reply to Sullivan at 2-3; R. 429, Def.’s Reply to Drumgould at 2-3.) The City contends that even if Deponents’ answers to the deposition questions could have potentially led to prosecution, the present invocation of the Fifth Amendment is improper because the five-year statute of limitations for any criminal prosecution has run. (R. 428, Def.’s Reply to Sullivan at 2-5; R. 429, Def.’s Reply to Drumgould at 4-5.) Hillmann and the City urge the Court to determine whether Deponents have valid bases to assert the privilege for each question they are asked. (R. 427, Pl.’s Reply to Sullivan at 2-5; R. 428, Def.’s Reply to Sullivan at 2; R. 426, Pl.’s Reply to Drumgould at 2-5; R. 429, Def.’s Reply to Drumgould at 6.)

Deponents claim that the deposition questions to which they declined to respond all relate to their employment with the City and actions they allegedly took as City employees. (R. 422, Sullivan’s Resp. at 2; R. 423, Drumgould’s Resp. 16.) Sullivan argues that the deposition questions seek to link him to various conspiracies, including: an alleged conspiracy to illegally terminate Hillmann because of a disability and in retaliation for a worker’s compensation claim; an alleged conspiracy to commit fraud to cover up the true reasons for Hillmann’s termination; a conspiracy by City employees to alter documents related to employment claims; a conspiracy to cover up ghost payrolling; and other similar conspiracies. (R. 422, Sullivan’s Resp. at 3.) Sullivan contends that “the broad scope of mail fraud prosecution,” as exemplified in Sorich, provides a basis for potential prosecution. (Id. at 3-4.) Drumgould argues that he does not have the burden of proving a basis of possible prosecution, but points out that his employment and some of the actions he took during that employment have already [779]*779formed a basis for criminal prosecution. (R. 428, Drumgould’s Resp. 115-6.) He contends that in addition to possible conspiracy and mail fraud prosecutions, his deposition responses could also create the possibility of a perjury prosecution if his answers are inconsistent with his prior immunized testimony. (Id. 18.) He also argues that he would face the possibility of waiver of his privilege if his answers vary at all from his prior immunized testimony.

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918 F. Supp. 2d 775, 2013 WL 182795, 2013 U.S. Dist. LEXIS 7050, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hillmann-v-city-of-chicago-ilnd-2013.