Breuder v. Bd. of Trs. of Cmty. Coll. Dist. No. 502

• Decision Date: 31 March 2021
• Docket Number: No. 15 CV 9323,15 CV 9323
• Parties: ROBERT BREUDER, Plaintiff, v. BOARD OF TRUSTEES OF COMMUNITY COLLEGE DISTRICT NO. 502, et al., Defendants.
• Court: U.S. District Court — Northern District of Illinois

ROBERT BREUDER, Plaintiff, v. BOARD OF TRUSTEES OF COMMUNITY COLLEGE DISTRICT NO. 502, et al., Defendants.

No. 15 CV 9323

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

March 31, 2021

Judge Andrea R. Wood

Magistrate Judge Jeffrey I. Cummings

MEMORANDUM OPINION AND ORDER

I. INTRODUCTION

Plaintiff Robert Breuder, who served as the President of the College of DuPage (the "College") from 2009 until his termination in October 2015, brings this lawsuit against defendants, the Board of Trustees of Community College District No. 502 (the "Board")¹, and individual Board members, Kathy Hamilton, Deanne Mazzochi, Frank Napolitano, and Charles Bernstein, alleging claims concerning §1983 due process violations, breach of contract, defamation, and civil conspiracy. Certain defendants have, in turn, filed counterclaims against Breuder alleging breach of contract, breach of fiduciary duty, and conversion.

The dispute currently before the Court concerns approximately 260 audio recordings (hereinafter, "Recordings") that defendant Kathy Hamilton made between January 2013 and November 2015. Many of these Recordings, according to a log prepared by Hamilton's counsel(the "Log"), contained conversations that Hamilton had with co-defendants Deanne Mazzochi, Frank Napolitano, and Charles Bernstein (collectively, the "Recorded Defendants"), third parties, and/or attorneys. (Dckt. #319-3.) Other Recordings reflect comments only of Hamilton herself. (Id.) The conversations and comments on the Recordings, according to the Log, concern a variety of topics including Breuder and matters relating to his performance as the College's President as well as a number of seemingly irrelevant matters. (Id.) Hamilton states - without elaboration - that she made the Recordings because she suffers from dyslexia. (Dckt. #311 at 1.)

Breuder learned of the existence of the Recordings from Hamilton's 2017 divorce trial, where Hamilton's ex-husband referenced them during his testimony. (Dckt. #319-6 at 14-15.) During discovery in this case, Breuder served an interrogatory and request to produce that required Hamilton to state whether she had obtained any statements contained in audiotapes that concerned the College, the Board, Breuder, and the allegations in this case and to produce such audiotapes. Breuder now demands that Hamilton produce approximately 200 of the Recordings that he believes are relevant to this case from a review of the Log. (Dckt. #319-1; Dckt. #319-3.)²

Defendants strenuously object to Breuder's demand for the production of the Recordings and they have filed three motions for the entry of protective orders to bar production of the Recordings. (See Dckt. #311 (Hamilton's motion for a protective order); Dckt. #308 (the Recorded Defendants' motion for a protective order); Dckt. #312 (the Board's motion for a protective order).) For the reasons set forth below, Hamilton's motion for a protective order(Dckt. #311) is granted and the motions by the Board and the Recorded Defendants (Dckt. #312 & #308), which seek essentially the same relief as Hamilton, are denied as moot.

I. RELEVANT BACKGROUND

In November 2018, Breuder served his First Set of Interrogatories on defendant Hamilton, which included interrogatory No. 10 seeking, in relevant part:

Interrogatory No. 10: State whether You, anyone acting on Your behalf, or anyone to Your knowledge has obtained any statement, including but not limited to statements contained in electronic mail, compact discs, audiotapes, videotapes, or any other electronic form, made with or without their knowledge, from any person concerning the College of DuPage, the Board of Trustees, Dr. Breuder, or any of the allegations contained in the Complaint.

(Dckt. #319-7 at 11) (emphasis added). Hamilton initially objected to this interrogatory as cumulative and duplicative of other interrogatories, overly broad, factually burdensome, and improperly seeking privileged communications, among other boilerplate objections. (Dckt. #319-7 at 11-12.)

Breuder's counsel clarified during the parties' subsequent meet and confer efforts that this interrogatory was targeted at any audio recordings of conversations in Hamilton's possession related to Breuder, the College, or any allegations of the complaint. Breuder also served a request for production on Hamilton that expressly sought "[a]ll audio recordings made by You which refer or relate to the College of DuPage, the Board of Trustees, Breuder, or any of the allegations in the Complaint or Counterclaim." (Dckt. 319-11 at 4.) Hamilton objected to this request for several reasons including that "the production of these documents could or might be in violation of state statutes." (Id.) Despite continued meet and confer efforts, the parties were unable to reach an agreement regarding the production of the Recordings.

Breuder first raised the dispute surrounding the Recordings with the Court in his February 2020 motion to compel against Hamilton. (Dckt. #270 at 5-6.) In this motion, Breuderstated his belief - based on the testimony of Hamilton's ex-husband and his attorney's representation - that "Hamilton is in possession of recorded conversations that are highly relevant to Breuder's due process, conspiracy, and punitive damages claims, particularly in that the recordings may reveal the pretextual motive for Breuder's termination and facts concerning Hamilton's efforts to oust Breuder from his employment based on an intentionally misleading and false reporting about the College's administration." (Dckt. #270 at 6.)

On February 11, 2020, the Court held a hearing on Breuder's motion and counsel for Hamilton raised a concern regarding whether production of the Recordings would violate the Illinois Eavesdropping Act, (the "Act"), 720 ILCS 5/14 et seq., and the privacy interests of the recorded individuals. In particular, Hamilton's counsel stated:

Interrogatory No. 10 is a little bit more unusual because that deals with statements that would be in the form of recordings. And there are recordings, your Honor. It's an unusual circumstance that our client did record not only herself but other possible defendants.

My understanding is that there are none with the plaintiff. No recordings of Dr. Breuder. And so there was an issue here regarding the eavesdropping statute, which I understand the statute of limitations has run on that; but our office disseminates or produces or circulates these recordings, produces them, then we could possibly be violating the law because the people who allegedly Ms. Hamilton recorded, we don't have consent to produce that.

(Dckt. #317 (2/11/20 Hearing Tr.) at 10 (emphasis added).) To facilitate the process of resolving the parties' dispute, the Court ordered Hamilton's counsel to prepare and circulate to the other parties' attorneys by February 20, 2020 a log indicating the date of each recording, the parties to the recording, and the subject matter of the recording. (Id.; Dckt. #278.) To protect the privacy interests of individuals who may have been recorded without their knowledge, the Court further ordered that the Log be kept confidential on an attorneys' eyes-only basis. (Dckt. #317 at 11-14; Dckt. #278.)

Hamilton's counsel timely produced the Log and also served upon Breuder a supplemental answer to interrogatory no. 10, which confirmed that the Recordings contained conversations with the other individual defendants in this case but not with Breuder and incorporated by reference a February 10, 2020 letter from defense counsel. (Dckt. #319-9 at 1-2.) Counsel's February 10 letter stated in part:

It is my understanding that certain of the above recordings were made without the consent of the participating party to the conversation in possible violation of the Illinois Eavesdropping statute. Importantly, the dissemination of the recording could result in criminal prosecution, and the non-consenting party could seek civil damages from the disseminating person or entity. Also, the non-consenting party may want to object to the dissemination. I believe that before dissemination, each non-consenting party should be advised of the tape records.

(Dckt. #319-10 (emphasis added).)

The Court convened a follow-up hearing on March 3, 3020. At that hearing, the Court and counsel for Hamilton, Mr. Botti, had the following exchange on the record regarding the Recordings:

THE COURT: Mr. Botti, I guess I would ask you, is it - my understanding is that all of these calls were recorded by Ms. Hamilton without the consent of the participants of the call; is that correct?

MR. BOTTI: Yes, sir. I believe that is correct.

THE COURT: Okay. All right. So based upon my understanding of the Illinois Eavesdropping Statute, in order to record calls or conversations, it requires the consent of all the parties to a call unless - there are certain exceptions which would not be applicable in this case.

And so it would appear to me that at least without making any sort of ruling on this matter, but it would appear to me that these calls were made at least facially in violation of the Illinois Eavesdropping Statute which is the particular - which is 740 ILCS 5/14.

MR. BOTTI: 720. I agree. This is Aldo Botti

THE COURT: Yes, 720.

MR. BOTTI: -- and I agree. Yes, sir, I agree with that statement. Also for the Court's edification, I believe under the state statute, the statute of limitations has expired, the criminal action.

THE COURT: What is that statute of limitations, Mr. Botti, in your understanding?

MR. BOTTI: Three years.³

THE COURT: Three years?

MR. BOTTI: Three years, yes, sir.

THE COURT: Okay. So the question is - now, I know that the issue was raised at our prior status conference just in terms of there's a threshold issue about Ms. Hamilton's attorneys releasing these calls in the course of discovery in this case, and there is a concern that releasing the calls may at least potentially subject Mr. Botti and his co-counsel to, potentially anyway, some sort of a

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