Orbitz travel company couldn't give U.S. Magistrate Judge Donald Wilkerson good reasons to depose a dozen Fairview Heights citizens, and class action attorney Richard Burke couldn't give Wilkerson good reasons not to depose them.
Wilkerson took the depositions under advisement Aug. 29, after a hearing that amused him more than it enlightened him.
In the suit, the city of Fairview Heights seeks to represent 50 Illinois cities in a claim that online travel agents have cheated on room taxes.
U.S. District Judge David Herndon presides over the suit. Wilkerson handles preliminary procedural matters.
At the hearing Burke, representing Fairview Heights, moved to quash 12 Orbitz subpoenas for depositions.
Wilkerson asked if it was true that not all 12 were city council members. Burke said it was true.
Burke said 50 cities adopted an ordinance that the Illinois Municipal League drafted in 1985.
He said the ordinance did not anticipate electronic business.
He said Orbitz had already taken four days of testimony from city officials.
He said there were similar cases in Chicago, Philadelphia, San Antonio and Los Angeles.
He said Orbitz didn't try to depose Chicago aldermen.
He said, "It's easy to intimidate volunteers."
He said he tried to work out depositions but people backed out.
He said, "Maybe it got back to those people that this is going to be a pain in the neck."
He said questions so far had been about whether lawyers were getting paid.
He pointed at Orbitz attorney Mark Chronis of Chicago and said, "He wants to divert this case. He wants to change the battleground."
He said courts cannot question legislators on how they decided to vote.
He said what Chronis wanted was like serving a subpoena on every member of Congress in an Internal Revenue Service case.
He said, "He wants to intimidate them so they will drop as class representative."
He said, "I asked him, what are you getting out of this? I'm not serving his board."
Wilkerson said, "Maybe you ought to. Let's get the war on."
Burke said Chronis would like that. Burke said, "He'd be paid double."
Wilkerson asked Chronis for his argument.
Chronis said, "I'm used to his personal attacks."
Wilkerson said, "In some quarters that is called a strategy. If Mr. Burke meant it as an attack it went over my head."
Chronis raised two points: why Orbitz wanted to depose the twelve and whether the city could keep Orbitz from deposing them.
Wilkerson said, "You have to prove that first hurdle first."
Chronis said a deputy clerk testified that the clerk heard something from the council about online companies buying and selling rooms.
Wilkerson asked how that was relevant. He said the city believes Orbitz buys and sells rooms.
Chronis said Burke could not prove that all ordinances are the same or that the Fairview Heights ordinance applies to Orbitz.
Chronis said he did not have to go into the inquiries.
He said the mayor testified he had no familiarity with the suit.
Wilkerson said, "But that cuts in their favor." He burst into laughter.
Chronis said the city didn't apply the ordinance to Orbitz until 2005.
Wilkerson said, "Lawyers called and said these are going on. Somebody brought it to their attention."
Chronis said, "That is relevant."
Wilkerson said, "I'm confused. Why can't they rely on their lawyer? Are you saying they have to decide it on their own?"
Chronis said, "We are entitled to go through the information that caused them to apply the ordinance."
Wilkerson asked Burke if he would stipulate that the city relied on counsel. Burke said he would.
Chronis said the city never enforced the ordinance until it interpreted the ordinance to define Orbitz as buyer and seller.
Wilkerson asked Burke if he would stipulate that the city never applied the ordinance until they got legal advice. Burke said he would.
Chronis said, "There's more."
Wilkerson said, "Keep going. Maybe we'll get more stipulations."
Chronis asked to stipulate that Orbitz is not buyer or seller.
Wilkerson said, "Isn't that for the court to decide?"
Chronis said, "Not if there is no factual basis for it."
Wilkerson said, "I got your point."
Burke brought up statements Orbitz made to the Securities and Exchange Commission, but Wilkerson snapped, "Too much history."
Chronis said statements of those who authorized the suit did not qualify for immunity as privileged communication.
He said, "I can't represent the totality of what they know because I don't know."
He said four firms represented the city. He said one withdrew and was sued by two others.
Wilkerson said, "We have ruled on that in other matters."
He said, "Adequacy of counsel goes to who is here. Stick to the potatoes and not the apples."
Chronis said, "You can't keep us from deposing them. We are entitled to raise a defense."
He said they arranged a handful of depositions but cancelled them.
Wilkerson said, "Your volunteers unvolunteered because they heard that others got grilled."
Chronis said speech privilege protects officials from liability, not from deposition.
He said immunity did not apply because it was not a case of a city being sued but a case of a city suing.
He said there was no reason to quash the subpoenas and every reason to allow them.
Burke said a deposition about what a deputy clerk said she heard was foolish.
He said, "Whether or not the city council knows anything about this is completely irrelevant."
He said, "They want to use discovery as a club."
Wilkerson said, "I got that point."
He said he would get an order out and one of them wouldn't like it.