Mustafa v. Mac's Convenience Stores, LLC

Filing 38

MEMORANDUM Opinion and Order Signed by the Honorable Young B. Kim on 3/18/2014. (ma,)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ANWAR M. MUSTAFA,

)
)
Plaintiff,
)
)
v.
)
)
MAC’S CONVENIENCE STORES, LLC, )
)
Defendant.
)

No. 13 CV 2951
Magistrate Judge Young B. Kim
March 18, 2014

MEMORANDUM OPINION and ORDER
In this employment-discrimination suit arising under the Illinois Human
Rights Act, plaintiff Anwar Mustafa seeks a court order requiring the agents of his
former employer, defendant Mac’s Convenience Stores, LLC (“Mac’s”), to provide
deposition testimony regarding communications that unfolded in the course of a
mediation with the Illinois Human Rights Department (“IHRD”). (R. 30.) For the
following reasons, the motion to compel is denied:
Background
In March 2013 Mustafa sued Mac’s in Illinois Circuit Court of Du Page
County under the Illinois Human Rights Act, alleging that it discriminated against
him based on his age and national origin and retaliated against him after he
complained to IDHR. (R. 1, Not. of Removal, Ex. A, Compl. ¶¶ 8, 13, 21.) A month
later Mac’s removed the case to this court on the basis of diversity jurisdiction. (Id.
¶ 5.) In August 2013 the assigned district judge referred the case to this court for
discovery supervision, (R. 14), and the parties began fact discovery. According to

the current motion, during the deposition of Regional Manager Eric Lindstrom the
defendant’s attorney instructed Lindstrom not to answer questions that would
reveal any information about events that took place during a mediation session at
IDHR on February 3, 2013 (“the IDHR mediation”). (R. 30, Mot. to Compel ¶¶ 3-4,
11.) The defendant’s counsel argued that the discussions surrounding the IDHR
mediation are privileged and confidential. (Id. ¶¶ 11-13.) Because the attorneys
could not agree on whether communications that unfolded during the IDHR
mediation are privileged, they agreed to leave Lindstrom’s deposition open and
Mustafa filed the current motion to compel. (Id. ¶ 14.)
Analysis
The Federal Rules of Civil Procedure instruct this court to allow discovery
“regarding any nonprivileged matter that is relevant to any party’s claim or
defense.” Fed. R. Civ. P. 26(b)(1). Mustafa argues that an order requiring Mac’s
agents to answer questions regarding the IDHR mediation is proper because, he
says, those communications are relevant to his claims and there is no federal
privilege protecting mediation negotiations from discovery. (R. 30, Mot. to Compel
¶¶ 15-16.) In response, Mac’s argues that its agents should not be compelled to
reveal

communications

related

to

the

IDHR

mediation

because

those

communications are privileged under the Illinois Uniform Mediation Act (“the
Mediation Act”). (R. 34, Resp. at 2-3.) As the party asserting the privilege, Mac’s
has the burden of showing that the Mediation Act privilege is applicable here. See
Doe v. Hudgins, 175 F.R.D. 511, 514 (N.D. Ill. 1997).

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The Mediation Act provides that “a mediation communication is privileged
. . . and is not subject to discovery or admissible in evidence in a proceeding unless
waived” or precluded in other ways not relevant here.

710 ILCS 35/4(a).

The

Mediation Act also makes clear that a “mediation party may refuse to disclose, and
may prevent any other person from disclosing, a mediation communication.” Id.
§ 35/4(b)(1).

The statute defines “mediation communication” as “a statement,

whether oral or in a record or verbal or non-verbal, that occurs during a mediation
or is made for purposes of considering, conducting, participating in, initiating,
continuing, or reconvening a mediation or retaining a mediator.”

Id. § 35/2(2).

Mac’s asserts that the targeted testimony regarding discussions Lindstrom or any of
Mac’s other agents had regarding what happened at the IDHR mediation falls
within the scope of this privilege and thus is not subject to discovery.
In his reply brief, Mustafa does not argue that the subject matter he is
concerned with is unrelated to a qualifying mediation or does not involve “mediation
communications” or that Mac’s has waived its privilege. Instead, he argues that the
Illinois statute does not apply in this federal proceeding. (R. 35, Reply at 1-2.)
According to Mustafa, the Mediation Act does not apply because “[s]ubject matter
jurisdiction of the Court in this lawsuit is based solely upon federal question and all
of Plaintiff’s claims involve solely matters of federal law.” (Id. at 2.) But that
assertion is misplaced given that he filed his claims in Illinois state court under the
Illinois Human Rights Act and Mac’s removed this case to this court specifically on
the grounds of the court’s diversity jurisdiction.

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(R. 1, Not. of Removal ¶ 5.)

Mustafa never amended his complaint to add any claims based on federal law, and
the time for amending his complaint as of right has long passed. See Fed. R. Civ. P.
15(a)(1). Accordingly, there are no federal claims currently before the court and the
court’s jurisdiction is based solely on the diversity jurisdiction.
As Mustafa acknowledges, in a diversity case, “state law governs privilege
regarding a claim or defense for which state law supplies the rule of decision.” See
Fed. R. Evid. 501. Because Illinois law supplies the rule of decision for Mustafa’s
claims under the Illinois Human Rights Act, Illinois privilege law applies to the
current dispute. See Netherlands Ins. Co. v. Nat’l Cas., 283 F.R.D. 412, 416 (C.D.
Ill. 2012). Accordingly, under the Mediation Act’s plain terms, any communications
Mac’s agents engaged in during or for the purposes of conducing the IDHR
mediation are privileged and not subject to discovery. See 710 ILCS 35/3(a).
The only argument unrelated to privilege Mustafa raises is his assertion that
he is entitled to depose Mac’s agents regarding the mediation communications
because those discussions are relevant or may lead to the discovery of admissible
evidence regarding Mac’s decision to terminate Mustafa. (R. 35, Reply at 3-4.) But
the fact that those communications are relevant is insufficient to overcome the
assertion of privilege. By their very nature, privileges are designed to barricade
access to relevant information. See Mem’l Hosp. for McHenry County v. Shadur,
664 F.2d 1058, 1061 (7th Cir. 1981). Because Mac’s has shown that the Mediation
Act privilege attaches to the communications Mustafa seeks, the motion to compel
is denied.

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Conclusion
For the foregoing reasons, the motion to compel is denied.
ENTER:

____________________________________
Young B. Kim
United States Magistrate Judge

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