UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

DON PRESTON, et al.,

Plaintiffs,

v.

DAVID WIEGAND, et al.,

Defendants.

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No. 20 CV 4272

Magistrate Judge Young B. Kim

November 3, 2022

MEMORANDUM OPINION and ORDER

Before the court is Defendants’ motion to compel and to clarify Plaintiffs’ 

alleged “garden-variety” emotional injuries. Defendants ask the court to compel 

additional deposition testimony regarding topics that Plaintiffs assert are protected 

by “the union-member privilege” and to set guidelines as to evidence Plaintiffs may 

use to support their damage claims for “garden-variety” emotional distress at trial. 

For the following reasons, the motion is granted in part, denied in part without 

prejudice, and denied in part with prejudice:

Background

In this First Amendment retaliation case, Plaintiffs are former employees of 

the Village of Crestwood (“Crestwood”) Police Department who allege that 

Defendants wrongfully terminated their employment as retribution for their efforts

to unionize with the Illinois Council of Police (“ICOPS”). Plaintiffs are suing 

Crestwood and Crestwood’s mayor, chief of police, and supervisory officers in the 

Crestwood Police Department. This case also occurs against the backdrop of a dispute 

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pending before the Illinois Labor Relations Board (“ILRB”) between ICOPS and 

Crestwood in which ICOPS has alleged unfair labor practices. This motion pertains 

to Defendants’ efforts to discover certain of Plaintiffs’ medical records and

conversations with ICOPS representatives.

Plaintiffs allege emotional distress damages of “the ‘garden-variety’ type and 

nothing more.” (R. 124, Pls.’ Resp. at 5.) During discovery Defendants issued

document requests seeking “[a]ny and all Documents, including medical records, 

showing or relating to the physical or mental condition of each of the Plaintiffs prior 

to, at the time of, or subsequent to the allegations contained in Plaintiffs’ Amended 

Complaint.” (R. 119, Defs.’ Mot. at 3.) Plaintiffs objected to these requests as 

irrelevant and not proportional to the needs of case. (Id.) Defendants then sought to 

clarify the emotional injuries claimed by Plaintiffs by asking them to elaborate in 

their depositions. Defendants did not submit the exact deposition testimony at issue 

to protect Plaintiffs’ privacy, (see id. at 11 n.4), but Defendants report: 

certain Plaintiffs testified regarding past mental health treatment, or 

that they experienced insomnia, weight loss, high blood pressure, 

throwing up at night, emotional injuries that are ongoing because 

Crestwood is “still in the back of my mind,” assertion of “PTSD,” fear of 

performing duties of their current law enforcement jobs, leaving 

Crestwood “still, haunts me and messes with me, my stomach,” that a 

plaintiff was the “perfect victim,” and is a “damaged, broken person.”

(Id. at 11.) In light of such testimony, Defendants seek to compel Plaintiffs to disclose

the evidence on which they will rely to support their “garden variety” emotional 

distress damage claims.

Defendants also seek to learn more about communications between Plaintiffs 

and ICOPS—particularly those identified in Plaintiffs’ Amended Complaint and in 

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affidavits submitted to the ILRB. To that end, Defendants’ document request Nos. 5 

and 7 seek “any Communication by and between the Plaintiffs and [ICOPS],” as well 

as “[a]ll documents or other tangible things resulting in Plaintiffs[’] association with 

ICOPS, including all meeting minutes and agendas for all union negotiation meetings 

between ICOPS and the Village of Crestwood.” (Id. at 3.) Plaintiffs objected to these 

requests in part based upon a so-called “union-member” privilege but produced 

documents notwithstanding the objection. (Id.) It is unclear whether Plaintiffs 

withheld any responsive documents based upon such privilege.1

Following these productions, Defendants deposed Plaintiffs Don Preston, 

Robert Hoselton, Gilbert Hueramo, Joe Cortesi, and Eric Chmura. At these 

depositions, Defendants asked Preston, Hoselton, and Hueramo about their meeting 

with ICOPS, as described in paragraph 26 of the Amended Complaint. (Id. at 4-5 &

Exs. A-C.) In this paragraph, Plaintiffs allege that “[o]n June 27, 2019, Plaintiffs 

Preston, Hueramo, and Hoselton, met with an officer of [ICOPS] to discuss the 

unionization process for [Crestwood’s] full-time and part-time police officers.” (R. 43, 

Am. Compl. at ¶ 26.) All three Plaintiffs refused to answer these questions on the 

advice of their attorney after their attorney objected based on the union-member 

privilege. (R. 119, Defs.’ Mot. at 4-5 & Exs. A-C.) Similarly, Defendants asked Cortesi

and Chmura about statements in their affidavits, which they submitted as part of the 

ILRB proceeding against Crestwood. Cortesi attested in his affidavit that “Gil 

1 If Plaintiffs withheld any documents based on such privilege, Rule 34 requires them 

to say so in their responses to the document requests and to submit a privilege log.

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Hueramo, Mike Hickman and I met with Rich Bruno, Vice President of the Illinois 

Council of police Union for representation,” (id. Ex. D ¶ 9), but Cortesi refused to 

answer deposition questions about this statement after his attorney claimed a unionmember privilege, (id. at 6 & Ex. E). Lastly, Chmura attested in his affidavit that he 

felt “intimidated and uncomfortable” during a conversation with Defendant Richard 

Wyman regarding a petition to remove ICOPS representation. (Id. Ex. F ¶ 16.) 

Defendants asked whether Chmura used the words “intimidated and uncomfortable” 

when “talking with representatives of ICOPS” or if those words “were placed in the 

affidavit that [he] ultimately signed.” (Id. at 6 & Ex. G.) Again, his attorney objected 

based on the union-member privilege and Chmura refused to answer. (Id.)

Analysis

Defendants seek a court order: (1) providing for second depositions of Preston, 

Hueramo, Hoselton, Cortesi, and Chmura “within 28 days on the limited issue 

regarding any communications/discussions with union representatives”; (2) requiring 

Plaintiffs to “produce all documents requested in Defendants’ Production Request

[Nos.] 5 and 7” withheld as union-member privileged along with a privilege log 

identifying any documents for which Plaintiffs claim a privilege; and (3) “prohibiting 

Plaintiffs from offering any testimony regarding symptoms, conditions, and past 

medical or psychological treatment based on Plaintiffs claiming ‘garden variety’ . . . 

emotional injuries.” (R. 119, Defs.’ Mot. at 12.) The court first examines the 

emotional distress issue, then analyzes the assertions of union-member privilege.

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A. Emotional Distress Claims

The court denies the motion on the “garden variety” emotional distress issue 

because Defendants’ request to limit Plaintiffs’ trial testimony is premature and 

additional discovery into Plaintiffs’ medical records is unnecessary. Defendants 

argue that Plaintiffs’ deposition testimony extended beyond “negative emotions” to 

various “symptoms or conditions,” thereby taking Plaintiffs’ trial testimony out of the 

realm of mere “garden variety” emotional injuries. (R. 119, Defs.’ Mot. at 9-11.) As 

such, Defendants ask the court to exclude any testimony at trial regarding symptoms 

and conditions, or in the alternative to compel Plaintiffs to produce “all medical 

records.” (Id. at 11.)

To the extent Defendants ask the court to exclude testimony from presentation 

at trial, the court agrees with Plaintiffs that Defendants’ motion is akin to a motion 

in limine. (See R. 124, Pls.’ Resp. at 5.) But fact discovery in this case is ongoing, the 

court has not yet set a schedule for raising and briefing motions in limine, and the 

referral to this court extends only to issues regarding settlement and discovery.

(See R. 80.) As such, Defendants’ motion in this respect is denied without prejudice.

Insofar as Defendants seek to compel Plaintiffs to produce their medical 

records, the court finds such request unnecessary. Under Federal Rule of Civil 

Procedure 26(b)(1), Defendants have a right to “obtain discovery regarding any 

nonprivileged matter that is relevant to any party’s claim or defense and proportional 

to the needs of the case.” Courts generally agree that mental health evidence is 

relevant to claims of emotional distress. See Vann-Foreman v. Ill. Cent. R.R. Co., 

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No. 19 CV 8069, 2020 WL 6262361, at *3 (N.D. Ill. Oct. 23, 2020) (citing Doe v. 

Oberweis Dairy, 456 F.3d 704, 718 (7th Cir. 2006)). However, a plaintiff can control 

the potential disclosure of his private mental health history by choosing to limit 

evidence to “garden variety” emotional damages. See Kelly v. Village of Lemont, 

No. 17 CV 8462, 2022 WL 483019, at *1-2 (N.D. Ill. Feb. 16, 2022). So long as 

Plaintiffs limit their trial testimony to “the negative emotions that [they] experienced 

. . . as the intrinsic result of the defendant’s alleged conduct, but not the resulting 

symptoms or conditions that [they] might have suffered,” Plaintiffs’ privacy interests 

in their medical records outweigh any probative value those records may have in the 

case. Valdez v. Lowry, No. 18 CV 5434, 2021 WL 5769533, at *4 (N.D. Ill. Dec. 5, 

2021) (internal quotations omitted).

Here, Defendants argue that Plaintiffs’ deposition testimony demonstrates

that Plaintiffs intend to go beyond negative emotions and discuss symptoms or 

conditions in their trial testimony. (R. 119, Defs.’ Mot. at 11.) However, that is not 

necessarily so because Plaintiffs are free to answer questions posed to them the way 

they see fit without limitations. Plaintiffs also make clear in their response that their 

claims for emotional distress damages involve “the ‘garden-variety’ type and nothing 

more.” (R. 124, Pls.’ Resp. at 5.) The court takes them at their word. Defendants’ 

motion as to this issue is therefore denied with prejudice.

B. Union-Member Privilege

The motion is granted as to this issue because Plaintiffs failed to meet their 

burden of demonstrating that any “union-member” privilege applies in this case. 

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Plaintiffs argue that the court should recognize the union-member privilege created 

by Illinois statute and expand its application to include the communications with 

ICOPS representatives at issue here. (R. 124, Pls.’ Resp. at 1-4 (citing 735 ILCS 5/8-

803.5).) However, this court declines to find that the union-member privilege has any 

force in this federal case or that such privilege would protect the communications at 

issue.

Courts construe evidentiary privileges narrowly because they impede the 

search for truth and “run counter to the public’s right to every person’s evidence.” 

Urb. 8 Fox Lake Corp. v. Nationwide Affordable Hous. Fund 4, LLC, 334 F.R.D. 149, 

156 (N.D. Ill. 2020). As such, the proponent of a privilege has the burden of 

establishing that it applies. Id. Federal common law governs assertions of privilege 

for claims arising under federal law, see Hamdan v. Ind. Univ. Health N. Hosp., Inc., 

880 F.3d 416, 421 (7th Cir. 2018), but state law governs in civil cases where “state 

law supplies the rule of decision,” Fed. R. Evid. 501. However, the Federal Rules of 

Evidence direct courts to interpret the common law “in the light of reason and 

experience.” Id. Thus, the Rules “direct[ ] federal courts to continue the evolutionary 

development of testimonial privileges.” Jaffee v. Redmond, 518 U.S. 1, 9 (1996)

(internal quotations omitted). Federal courts considering new evidentiary privileges

must evaluate on a case-by-case basis whether the proposed privilege: (1) is “rooted 

in the imperative need for confidence and trust”; (2) serves “public ends”; (3) has 

“significant public and private interests supporting recognition of the privilege” that 

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outweigh “the likely evidentiary benefit that would result from the denial of the 

privilege”; and (4) has been widely adopted among the states. Id. at 8, 10-15.

Plaintiffs did not explain why the union-member privilege they assert should 

govern in this case based upon these applicable legal standards. Instead, they make 

the unsupported assertion that the Illinois union-member privilege should apply 

under Federal Rule of Evidence 501’s state law rule-of-decision exception. 

(See R. 124, Pls.’ Resp. at 3.) But Plaintiffs’ First Amendment retaliation case clearly 

arises under federal law, and the federal common law of privileges governs even with 

respect to Plaintiffs’ supplemental state law claims. See Bell v. Vill. of Streamwood, 

806 F. Supp. 2d 1052, 1055 (N.D. Ill. 2011). As such, Plaintiffs were required to

explain why the Jaffee v. Redmond factors weigh in favor of federal common law 

adopting Illinois’s union-member privilege. They have not done so here. Rather, 

Plaintiffs quote the decision in Bell v. Village of Streamwood to argue that “[a]s with 

the attorney-client privilege, there is a strong interest in encouraging an employee 

accused of wrongdoing to communicate fully and frankly with his union 

representative, in order to receive accurate advice about the disciplinary process.” 

(R. 124, Pls.’ Resp. at 4 (quoting Bell, 806 F. Supp. 2d at 1056).) But Bell recognized 

a limited union-member privilege in the context of “anticipated or ongoing 

disciplinary proceedings.” Bell, 806 F. Supp. 2d at 1056. The union communications 

at issue here did not occur in the context of a disciplinary proceeding, and Plaintiffs 

make no effort to explain why Bell’s reasoning should apply to conversations related 

to Plaintiffs’ efforts to unionize.

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Furthermore, as Defendants rightly point out, the Seventh Circuit has never 

recognized a union-member privilege, see Jenkins v. Bartlett, 487 F.3d 482, 491 n.6 

(7th Cir. 2007), and at least two cases in this district have declined to extend Bell, 

see Wong v. Bd. of Educ. of Cmty. Consol., No. 11 CV 7357, 2013 WL 6571326, at *2-

5 (N.D. Ill. Sept. 30, 2013); Belcastro v. United Airlines, No. 17 CV 1682, 2021 WL 

1531601, at *2-5 (N.D. Ill. April 19, 2021). Plaintiffs try to distinguish those cases by 

arguing that Crestwood is both a defendant here and a respondent before the ILRB, 

and as such, disclosure of the disputed union communications “would seriously 

undermine the state law privilege” as applicable before the ILRB. (R. 124, Pls.’ Resp. 

at 5.) But this argument makes no serious attempt to engage with the reasoning in 

any of the cited union-member privilege cases or satisfy the Jaffee factors. 

Additionally, Plaintiffs have not explained why this court should prioritize the 

theorized impact on the operation of a state law privilege in a state adjudication over 

the rights of Defendants in this action to discover information relevant to their 

defense.

Finally, the court notes that even if it were to adopt the union-member 

privilege exactly as written in Illinois statute, Plaintiffs still have not shown that the 

privilege would protect the communications in question. The statute in question 

protects “[1] a union agent [2] during . . . or after . . . [the] representative relationship 

with the bargaining unit member,” from disclosing “[3] any information he or she may 

have acquired in attending to his or her professional duties or while acting in his or 

her representative capacity.” 735 ILCS 5/8-803.5. Here, Plaintiffs are not union 

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agents and they have not demonstrated that they had a representative relationship 

with ICOPS at the time of any of the communications at issue. Accordingly, 

Defendants’ motion to compel as to this issue is granted.

Conclusion

For the foregoing reasons, Defendants’ motion to compel and to clarify is 

granted in part, denied in part without prejudice, and denied in part with prejudice. 

Plaintiffs are ordered to produce any documents responsive to Defendants’ 

Production Request Nos. 5 and 7 that they previously withheld as union-member 

privileged, if any. If none, they are to so state. Defendants may then re-depose 

Preston, Hueramo, Hoselton, Cortesi, and Chmura on the questions they initially 

refused to answer based on a union-member privilege and may pursue any follow-up 

or related questions. Additionally, Plaintiffs must reimburse Defendants any courtreporter attendance fees associated with this second round of depositions.

ENTER:

____________________________________

Young B. Kim

United States Magistrate Judge

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