Barker et al v. Local 150 International Union of Operating Engineers AFL-CIO

Filing 366

WRITTEN Opinion entered by the Honorable Frederick J. Kapala on 12/19/2011: Local 150's motion to reconsider 316 is granted. Local 150 is now granted summary judgment on all claims. All other pending motions 320 , 322 , 325 are denied as moot. This case is closed.[For further details see order.] Electronic notice(jat, )

Order Form (01/2005)

United States District Court, Northern District of Illinois
Name of Assigned Judge
or Magistrate Judge

Frederick J. Kapala
08 C 50015

CASE NUMBER
CASE
TITLE

Sitting Judge if Other
than Assigned Judge

DATE

12/19/2011

Barker, et al. vs. International Union of Operating Engineers Local 150

DOCKET ENTRY TEXT:

Local 150’s motion to reconsider [316] is granted. Local 150 is now granted summary judgment on all claims.
All other pending motions are denied as moot. This case is closed.

O[ For further details see text below.]

Docketing to mail notices.

STATEMENT
This court previously granted summary judgment in favor of Local 150 on all counts except for Timothy
Barker’s claim in count I brought under the Driver’s Privacy Protection Act of 1994 (DPPA), 18 U.S.C. §§
2721-25. In denying summary judgment on that claim, this court held that there was a genuine issue of material
fact as to whether Local 150 obtained Timothy Barker’s personal information from a motor vehicle record in
violation of the DPPA. The court found evidence in support of that claim in the form of notary public Casey
Goldman’s testimony that on January 11, 2008, she heard Linda Soria say that she ran the Barkers’ plate when
Soria worked for Local 150. The court determined that this hearsay statement would be admissible at trial under
Federal Rule of Evidence 804(b)(3) as a statement against Soria’s interest.
Local 150 filed a motion to reconsider which led this court to order supplemental briefing on the
admissibility of the hearsay statement. The matter has been fully briefed. The court now concludes that Soria’s
hearsay statements are inadmissible and grants Local 150 summary judgment on the only remaining claim.
I. BACKGROUND
As noted in this court’s previous order, in her January 11, 2008 affidavit, Soria stated that she provided
personal information associated with various license plate numbers to Local 150 business agents. However, in
that affidavit, Soria did not identify any particular license plate that she ran or any individual whose personal
information she obtained.
At her May 28, 2008 deposition, Soria refused to answer questions concerning this case asserting her Fifth
Amendment privilege not to incriminate herself. Soria did answer some general background questions, but no
questions pertinent to this case.
On July 9, 2009, this court held that “a private right of action does not lie under § 2724(a) [of the DPPA]
based on knowing obtainment of a ‘motor vehicle record’ for a purpose not permitted by the DPPA absent the
additional showing that ‘personal information’ was obtained from that record.” Barker v. Int’l Union of Operating
Eng’rs, Local 150, 641 F. Supp. 2d 698, 706 (N.D. Ill. 2009). The court explained that “simply obtaining the CD
containing the motor vehicle records is not equivalent to obtaining the personal information contained therein.”
08 C 50015 Barker, et al. vs. International Union of Operating Engineers Local 150

Page 1 of 5

STATEMENT
Id. at 705-06. Consequently, the parties were alerted that a private right of action under the DPPA exists only for
the improper acquisition of personal information “from” motor vehicle records, not for the acquisition of a bulk
database of such records.
On March 30, 2010, Casey Goldman executed an affidavit stating that she and plaintiffs’ counsel Robert
Hanlon were present when Soria executed her January 11, 2008 affidavit. Though not included in Soria’s affidavit
of January 11, 2008, Goldman swore that on that date Soria orally stated: “I ran the Barker’s license plate.”
Goldman also swore that Soria stated that she, Soria, was questioned by an FBI agent about her work experience
at Local 150. According to Goldman, Soria said that she wanted to help “because I know what kind of people
they are, there [sic] evil.”
On October 11, 2010, Soria executed another affidavit in which she swore that plaintiffs’ counsel, Robert
Hanlon, told her several times before she signed her January 11, 2008 affidavit that she would not get in any legal
trouble by signing the affidavit. Soria also swore that Hanlon advised her that he could and would get her
immunity from any legal responsibilities if she signed the affidavit.
On November 8, 2010, Goldman executed yet another affidavit in which she swore that she, Hanlon, and
another attorney traveled to Soria’s house again on March 21, 2008, and the other attorney questioned Soria about
running license plates while she was employed at Local 150. Soria acknowledged signing her January 11, 2008
affidavit, said that she was not promised anything in return, and that, “it’s all true.” Goldman also swore that Soria
once again stated that she ran the Barkers’ plate.
In a declaration dated November 8, 2010, Hanlon swore to the following. He did not promise Soria
immunity prior to her signing her January 11, 2008 affidavit. On January 11, 2008, Soria mentioned that she had
already been contacted by an FBI agent. Hanlon, Goldman, and attorney Dean Polales met with Soria again on
March 21, 2010. Polales asked Soria a number of questions related to the case. At the conclusion of the March
21, 2010 meeting, Soria asked Hanlon if he was going to bring a lawsuit against her. Hanlon told Soria that he
had no present intention of seeking a remedy against her.
In its previous order denying Local 150 summary judgment on Timothy Barker’s DPPA claim, this court
held that Soria’s hearsay statement, submitted through Goldman’s affidavit, that she ran the Barkers’ plate was
admissible as a statement against interest under Federal Rule of Evidence 804(b)(3). The court determined that
the two foundational requirements of Rule 804(b)(3) were satisfied because it was undisputed that Soria was
unavailable to testify at trial and that Soria’s affidavit of October 11, 2010 contained sufficient indicia that she
was aware of some potential for penalties or liability at the time she executed her January 11, 2008 affidavit.
Specifically, in her affidavit of October 11, 2010, Soria stated that Hanlon told her several times before she
executed her January 11, 2008 affidavit that she would not get in any legal trouble by signing the affidavit, thereby
indicating that Soria was hesitant to make the statements. Also, although Hanlon disputes it, Soria also indicated
that Hanlon promised her immunity from any legal trouble. Thus, this court held that on January 11, 2008, Soria
was on notice of potential legal consequences as a result of her statements.
After Local 150 filed its motion to reconsider, the court ordered supplemental briefing and explained as
follows:
[T]he court suspects that Soria’s October 11, 2010 affidavit was not properly before the court
because she had previously invoked her Fifth Amendment rights preventing her deposition and
disqualifying her from testifying at trial. See Laborers’ Pension Fund v. Surface Dimensions, Inc.,
No. 07 C 3860, 2011 WL 841515, at *5 (N.D. Ill. Mar. 8, 2011) (“The court may strike an affidavit
(or paragraphs thereof) in support of or in opposition to a motion for summary judgment when the
affidavit seeks to establish facts about which the affiant refused to testify pursuant to the Fifth
Amendment privilege against self-incrimination.”). Such an affidavit is not properly considered
for summary judgment purposes because the Fifth Amendment privilege “cannot be invoked as
08 C 50015 Barker, et al. vs. International Union of Operating Engineers Local 150

Page 2 of 5

STATEMENT
a shield to oppose depositions while discarding it for the limited purpose of making statements to
support [or oppose] a summary judgment motion.” In re Edmond, 934 F.2d 1304, 1308 (4th Cir.
1991); see also United States v. Parcels of Land, 903 F.2d 36, 43-46 (1st Cir. 1990) (upholding
district court’s decision to strike claimant’s affidavit offered in opposition to motion for summary
judgment after claimant invoked Fifth Amendment privilege and refused to answer deposition
questions).
. . . Under these circumstances, based on the above cited authority, it seems that Soria’s
October 11, 2010 affidavit cannot be considered at the summary judgment stage. Without the
October 11, 2010 affidavit –and the testimony it represents– there would be no evidence
establishing that Soria knew her statement was against her penal or civil interest at the time she
made it, an element necessary to admit her hearsay statement to Goldman –that she ran Barker’s
license plate– under Rule 804(b)(3). Without admissible evidence that Soria said she ran Barker’s
license plate while employed at Local 150, the record would be devoid of any evidence that Local
150 obtained Timothy Barker’s personal information from a motor vehicle record in violation of
the DPPA. Under those circumstances, summary judgment for Local 150 on this last pending
claim would be appropriate.
II. ANALYSIS
Not surprisingly, in its supplemental brief, Local 150 agrees with this court’s suggestion that Soria’s
October 11, 2010 affidavit was not properly before the court at summary judgment due to her previous invocation
of her Fifth Amendment privilege. Consequently, Local 150 maintains that there is insufficient foundation to
admit Soria’s hearsay statements at trial under Rule 804(b)(3) and no genuine issue of material fact exists as to
Timothy Barker’s DPPA claim. Plaintiffs, on the other hand, advance four arguments in support of the
admissibility of Soria’s hearsay statements under Rule 804(b)(3): (1) the sword and shield rule should not be
applied in this case because the purpose of the rule is not served, (2) only those portions of Soria’s October 11,
2010 affidavit about which she refused to testify at her deposition should be stricken, (3) evidence other than that
contained in Soria’s October 11, 2010 affidavit shows that Soria’s statements were against her interest, and (4)
an adverse inference should be drawn from the assertion of the Fifth Amendment privilege and that inference
precludes summary judgment. The court will address each argument in turn.
A. Sword and Shield Rule
First, plaintiffs argue that applying the so-called sword and shield rule to strike Soria’s October 11, 2010
affidavit does not advance the purpose of that rule. Plaintiff suggests that while Soria asserted her Fifth
Amendment privilege at Local 150’s behest and that it was Local 150 that procured her October 11, 2010 affidavit,
Local 150 is not the party seeking to utilize that affidavit. Plaintiffs conclude that, because they had nothing to
do with Soria’s refusal to testify at her deposition or the procurement of her October 11, 2010 affidavit, the sword
and shield rule should not hinder them.
Plaintiffs’ argument assumes that Soria’s interests are somehow aligned with Local 150’s, a proposition
that is far from clear in view of Soria’s purported opinion that “there [sic] evil” and her apparent untimely
separation from her long-time employment with the union. In any event, the sword and shield rule “is grounded
in the reasoning that it is unfair to invoke the Fifth Amendment to avoid answering an opponent’s inquiries during
discovery, only to surprise the other side with favorable, self-serving testimony at the summary judgment stage.”
Surface Dimensions, Inc., 2011 WL 841515, at *5. Under these circumstances, regardless of who benefits by the
testimony, it is not fair to admit Soria’s hearsay statements within her October 11, 2010 affidavit for any purpose,
including to determine the admissibility of Soria’s other hearsay statements under Federal Rule of Evidence
104(a), when neither party has had the opportunity to depose her and to flesh out the circumstances of her account
and her motivations. Moreover, plaintiff has not advanced authority to convince this court that the sword and
08 C 50015 Barker, et al. vs. International Union of Operating Engineers Local 150

Page 3 of 5

STATEMENT
shield rule can be ignored in a case where a witnesses’ loyalties change merely because the rule’s purpose is no
longer directly met. Thus, Soria’s October 11, 2010 affidavit is stricken and cannot be used to establish the
foundation for admitting Soria’s hearsay statements at trial under Rule 804(b)(3).
B. Limited Application of the Sword and Shield Rule
Plaintiffs’ second argument is that the sword and shield rule should only be applied to strike those portions
of Soria’s January 11, 2008 affidavit that speak to the subject matter on which Soria refused to testify during her
deposition. Plaintiffs maintain that, at her deposition, Soria was not asked questions about the circumstances
surrounding the execution of her January 11, 2008 affidavit, and therefore she did not refuse to answer such
questions. The court disagrees.
At her May 28, 2008 deposition, Soria was asked whether an attorney talked to her about her having
previously signed an affidavit and she responded, “I respectfully refuse to testify based on my privilege against
self-incrimination under the Fifth Amendment to the U.S. Constitution.” When asked whether she would even
identify her previously executed affidavit, Soria gave the same response. Hence, it is clear that Soria was refusing
to answer any questions concerning her January 11, 2008 affidavit, including the circumstances surrounding its
execution. Thus, plaintiffs’ second argument also lacks merit.
C. Other Evidence that Soria Knew her Statements Were Against her Interest
Plaintiffs’ third argument is that even if Soria’s October 11, 2010 affidavit is stricken, other evidence
shows that Soria knew her statements were against her interest at the time she made them. Specifically, plaintiffs
maintain that (1) the caption on Soria’s January 11, 2008 affidavit gave her notice that a lawsuit would be filed
and that her affidavit would be a key piece of evidence, (2) the complaint filed in this case gave Soria further
notice that the lawsuit was related to her activity while employed at Local 150, (3) Goldman’s March 30, 2010
affidavit indicates that on January 11, 2008 Soria said she had been interviewed by an FBI agent, and (4) Hanlon’s
November 8, 2010 declaration indicates that on March 21, 2008, Soria asked him if he was going to file a lawsuit
against her.
Rule 804(b)(3) provides, in pertinent part, that an unavailable declarant’s statement is not excluded by the
hearsay rule if “a reasonable person in the declarant’s position would have made [the statement] only if the person
believed it to be true because, when made, it . . . had so great a tendency . . . to expose the declarant to civil or
criminal liability.” Fed. R. Evid. 804(b)(3). It remains undisputed that Soria is unavailable to testify at trial
because she asserted her rights under the Fifth Amendment at her deposition, and neither party has indicated that
they expect her to waive that right at any point in the future. What remains in dispute is whether plaintiffs can
establish the second foundational requirement of Rule 804(b)(3): that a reasonable person in Soria’s position
would have believed at the time of her statement that she was exposing herself to civil of criminal liability. This
is a question of admissibility for the court to resolve under Federal Rule of Evidence 104(a) and in making this
determination, with the exception of privileges, the court is not bound by the rules of evidence. Fed. R. Civ. P.
104(a); United States v. Amerson, 185 F.3d 676, 692 (7th Cir. 1999) (Posner, J. dissenting) (noting that the
foundation for the admission of a Rule 804(b)(3) hearsay statement can be established through the use of hearsay
testimony for the purpose of a Rule 104(a) preliminary determination of admissibility).
Plaintiff has not convinced this court that the caption on Soria’s January 11, 2008 affidavit or the complaint
that was filed in this case put Soria on notice that her statements that she ran the Barkers’ plate were against her
criminal or civil interest. The caption on her affidavit indicates that a lawsuit was going to be filed against Local
150, not Soria. As for the complaint, Soria could not have read it prior to making her purported statement on
January 11, 2008, because it was not filed until January 21, 2008. Moreover, there is no indication in this record
that Soria ever saw the complaint before she purportedly made the same statement on March 21, 2008.
Soria’s purported January 11, 2008 statement that she was interviewed by an FBI agent, as reported in
08 C 50015 Barker, et al. vs. International Union of Operating Engineers Local 150

Page 4 of 5

STATEMENT
Goldman’s affidavit, is incomplete in that there is nothing indicating what was said during the interview.
Consequently, the court cannot conclude that the FBI agent made Soria aware of the prohibitions within the DPPA
or its civil and criminal penalties.
Although Hanlon’s testimony that Soria asked him if he was going to sue her is hearsay, it would be
admissible for purposes of this court’s Rule 104(a) admissibility determination. See Amerson, 185 F.3d at 692.
However, there are at least four problems with using this testimony to establish the foundation for a Rule 804(b)(3)
statement against interest.
First, Hanlon’s testimony does nothing to establish that on January 11, 2008, Soria understood that her
statement that she ran the Barkers’ plate exposed her to civil or criminal liability. Second, careful examination
of both Goldman’s affidavit of November 8, 2010 and Hanlon’s declaration of the same date reveals that they
collectively claim that on March 21, 2008, Soria asked the question about being sued after she said that she ran
the Barkers’ plate. Thus, there is doubt as to whether she came to that conclusion before making the statement.
Third, Hanlon is an attorney of record for the plaintiffs in this case. Absent extraordinary circumstances or
compelling reasons an attorney of record should not be called as a witness. See United States v. Britton, 289 F.3d
976, 982 (7th Cir. 2002). Fourth, and most importantly, Hanlon has not been disclosed by plaintiffs as a witness
as is required under Federal Rule of Civil Procedure 26(a). Therefore, it would be at most improper, and at least
unfair, to allow Hanlon to serve as a foundational witness for the admission of Soria’s purported hearsay
statement. For these reasons, plaintiffs have not persuaded the court that there is other admissible evidence
showing that Soria’s statements were made at a time when she realized she was exposing herself to civil or
criminal liability.
D. Adverse Inference
Plaintiffs’ fourth argument is that an adverse inference should be drawn against Local 150 based on Soria’s
–as well as other current and former Local 150 employees’– assertion of the Fifth Amendment privilege in
response to questions concerning Local 150’s obtaining personal information from motor vehicle records.
Plaintiffs maintain that the adverse inference is sufficient to create a genuine dispute of material fact precluding
summary judgment. The court disagrees.
“The rule that adverse inferences may be drawn from Fifth Amendment silence in civil proceedings has
been widely recognized.” LaSalle Bank Lake View v. Seguban, 54 F.3d 387, 390 (7th Cir. 1995). However, an
adverse inference based on silence pursuant to the assertion of the Fifth Amendment privilege is insufficient by
itself to create an issue of material fact precluding summary judgment. Curtis v. M & S Petroleum, Inc., 174 F.3d
661, 674-75 (5th Cir. 1999); Avirgan v. Hull, 932 F.2d 1572, 1580 (11th Cir. 1991) (“Invocation of the fifth
amendment privilege did not give rise to any legally cognizable inferences sufficient to preclude entry of summary
judgment. The negative inference, if any, to be drawn from the assertion of the fifth amendment does not
substitute for evidence needed to meet the burden of production.”); Thompson v. City of Chi., No. 07 C 1130,
2009 WL 674353, at *3 (N.D. Ill. Mar. 12, 2009). Therefore, this court cannot accept plaintiffs’ argument that
an adverse inference arising from witnesses asserting their Fifth Amendment rights creates a genuine dispute of
material fact precluding summary judgment.
III. CONCLUSION
For the foregoing reasons, Local 150’s Rule 54(b) motion to reconsider is granted. Local 150 is now
granted summary judgment on all claims. All other pending motions are denied as moot.

08 C 50015 Barker, et al. vs. International Union of Operating Engineers Local 150

Page 5 of 5