does not apply to federal court proceedings where federal law provides the rule of decision,
then Johnson cannot be held liable for violating the Act; technically, there is no violation
of the Act for Title VII purposes and ARTC cannot obtain damages.

Our holding will allow the parties to hear and review the tapes without incurring any
liability or waiving any rights. However, our opinion does not hold that the tapes are
admissible. As we explained above, there are serious questions about the authenticity of
the tapes that may render them inadmissible. The parties will have to conduct additional
discovery on this issue before the District Court or this Court decides the question of

admissibility. It is so ordered.

ENTER:

MICHAEL T. MASON
United States Magistrate Judge

Dated: March 27, 2002


on the above exclusionary rule without briefing from the parties on the issue and without
considering the law and arguments addressed below. In Glinski v. City of Chicago, No.
99C3063, 2002 WL 113884 (N.D.III., Jan. 29, 2002), the Court undertook a more in-depth
analysis of the Act’s use in federal court and held that the Act did not apply if federal law
governed the case.

Glinski concerned the secret taping by the plaintiff of one of the defendants in a
§ 1983 civil rights case. The court reviewed Seventh Circuit precedent which held that the
Act does not apply in administrative proceedings under federal law, NLRB v. Local 90,
Operative Plasterers and Cement Masons; int'l Assn., 606 F.2d 189, 192) (7" Cir. 1979)
or in federal criminal prosecutions, United States v. Krol, 374 F.2d 776 (7" Cir. 1967), and
decided that the Act should similarly not apply in civil proceedings in federal court where
federal law provides the rule of decision. Thus, the Act’s exclusionary rule would not be
applied to the plaintiff's federal claims and the tape and its transcript could be used in
court.3

in this case, ARTC recognizes the holding of Glinski but argues that in a Title VII
case such as this, the Act is an indirect bar to the use of recordings made in violation of
it. Defendant's reasoning appears to be that because Johnson violated the Act when she
made her recording, use of the tape in federal court will give defendant a cause of action
against her for that violation. Specifically, ARTC argues that Johnson should be required
to disgorge any monetary settlement or award she receives from her lawsuit pursuant to

the Act's damages clause. 720 ILCS 5/14-6. We disagree. Because we hold that the Act

3 The Glinski Court recognized that the Act applied to that case’s pendant state law
claims and scheduled a hearing to determine the applicability of the Act’s exception that
no violation occurs if the individual making the recording does so in the belief that a crime
is about to be committed.


Minute Order Form (06/97)

United States District Court, Northern District of Illinois

Name of Assigned Judge
or Magistrate Judge

Wayne R. Andersen

Sitting Judge if Other
than Assigned Judge

Michael T. Mason

CASE NUMBER 01 C5174 DATE 3/27/2002
CASE Johnson vs. Around the Clock Security
TITLE
[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (0) state briefly the nature
MOTION: of the motion being presented.]
DOCKET ENTRY:
(1) oO Filed motion of [ use listing in “Motion” box above.]
(2) a Brief in support of motion due
(3) Oo Answer brief to motion due. . Reply to answer brief due.
(4) Oo Ruling/Hearing on set for at
(5) o Status hearing[held/continued to] [set for/re-set for] on set for at
(6) o Pretrial conference[held/continued to] [set for/re-set for] on set for at
(7) im) Trial[set for/re-set for] on at
(8) 0 (Bench/Jury trial] [Hearing] held/continued to at
(9) i) This case is dismissed {with/without] prejudice and without costs[by/agreement/pursuant to]
QFRCP4(m) O General Rule 21 OO FRCP41(a)(1) CO FRCP41(a)(2).
ao) of [Other docket entry] Enter Memorandum Opinion and Order: The parties are allowed to hear and
review the tapes without incurring liability or waiving any rights. However, the court’s opinion does not
hold that the tapes are admissible. The parties will have to conduct additional discovery on this issue
before the District Court or this Court decides the question of admissibility. Status hearing set for 4/2/02
is stricken and reset to 4/30/02, the date of the close of discovery.
(1) of {For further detail see order attached to the original minute order.]

No notices required, advised in open court.

No notices required.

| Notices mailed by judge’s staff.

Notified counsel by telephone.

Docketing to mail notices.

Mail AO 450 form.

Y_ | Copy to judge/magistrate judge.

courtroom
KF deputy’s
initials

Document
Number
numberof notices

MAR 2 8 2002.

date docketed

3/27/2002

4
J?

date mailed notice

KF

er ey
Dateline redeived 7
central Clerk’s Office

mailing deputy initials



IN THE UNITED STATES DISTRICT COURT MAR © 95
NORTHERN DISTRICT OF ILLINOIS WS 8 2U02
EASTERN DIVISION

HENRIETTA JOHNSON,

Plaintiff,
No. 01C 5174
v.
Judge Wayne Andersen

AROUND THE CLOCK SECURITY, INC. Mag. Judge Mason

we SS SS SS

Defendant.
MEMORANDUM OPINION AND ORDER
Henrietta Johnson, the plaintiff in this employment discrimination case, alleges that
an employee of defendant Around the Clock Security (“ARTC”), Miguel Rivera, promised
to get her a job with the company if she would engage in sexual intercourse with him. Over
the course of about three months, the two did have intercourse on several occasions — but
the promised job never materialized. Disillusioned with Rivera, Johnson surreptitiously
tape recorded him on three occasions, allegedly offering her a job in exchange for sex.
The parties seek guidance on the use of the tapes — which were made in violation of the
Illinois Eavesdropping Act, 720 ILCS 5/14 et. seq. — in this federal court proceeding. As
we explain below, although we find that violation of the illinois Eavesdropping Act (“the
Act") does not per se bar the use of recordings in federal proceedings, we have serious
concerns about the admissibility of these tapes, given questions about their authenticity
and chain of custody.

According to the briefs submitted by the parties, Johnson made the tape recordings

* Rivera denies that he ever promised Johnson a job in exchange for sex and
contends that the two had an entirely consensual relationship that began when both
worked for a different security company. / 5


in March, 2001 and soon thereafter retained counsel and filed her lawsuit. Johnson’s
lawyers say that after Johnson told them of the existence of the tapes, she lost them for
some period of time; she also lost the tape recorder she had used after her son broke it.
Johnson did not list the tapes on her Rule 26(a)(1) initial disclosures to the defendant.” At
some point, Johnson found the tapes and gave them to her lawyers. On January 14, 2002,
Johnson's lawyers informed ARTC about the existence of the tapes by letter, explaining
that two of the tapes were inaudible but that in the third, Rivera “guarantees” Johnson
employment for sex. Johnson objected to an interrogatory which sought to determine
when she first told her lawyers about the tapes and with whom the contents were shared.
Rivera only learned of the existence of the tapes a few minutes before plaintiff was to begin
deposing him; this Court ordered that the deposition should not go forward until the
question of the tape’s use was settled. So far, ARTC, Rivera, and their lawyers have not
listened to the tapes.

Under the Illinois Eavesdropping Act, a person may not record any part of a
conversation unless he or she receives permission from all parties to the conversation. 720
ILCS 5/14-2(a)(1). Evidence obtained in violation of the Act is not admissible in any civil
or criminal trial, or any administrative or legislative proceeding, nor in any grand jury
proceeding. /d. § 14-5.

Only two federal cases discuss the applicability of the Act to proceedings in federal
court where federal law provides the rule of decision. In Mingo v. Roadway Express, 135

F.Supp.2d 884, the Court excluded a recording made in violation of the Act based solely

? It is not clear from the briefs whether Johnson’s lawyers knew about the existence
of the tapes when they filed her initial disclosures, but ARTC states in its brief that
Johnson’s lawyers told them it withheld disclosure of the tapes based on the advice of
separate legal counsel.