DAVID ISRAEL, Plaintiff, v. MICHAEL BUCON; JAMES ADAMS; and XTREME PROTECTION SERVICES, LLC, Defendants No. 17 C 6452 United States District Court, N.D. Illinois, Eastern Division Filed: December 12, 2017 Counsel Ariel Weissberg, Lindsey Louise Purdy, Weissberg and Associates, Ltd., Chicago, IL, Nemura G. Pencyla, Patrick L. Provenzale, Terry A. Ekl, Tracy L. Stanker, Ekl, Williams & Provenzale LLC, Lisle, IL, for Plaintiff. Daniel Francis Lynch, Lynch Thompson LLP, Chicago, IL, Stephen Michael Donnelly, Parikh Law Group, LLC, Chicago, IL, for Defendant Michael Bucon. Jonathan M. Cyrluk, Steven Christopher Moeller, Carpenter Lipps & Leland LLP, Chicago, IL, for Defendants James Adams, Xtreme Protection Services, LLC. Daniel Francis Lynch, Amy J. Kanarowski, Lynch Thompson LLP, Chicago, IL, for Defendant Diane Israel. Valdez, Maria, United States Magistrate Judge ORDER *1 This matter is before the Court on Plaintiff's Motion to Compel James Adams and Xtreme Protection Services, LLC to Respond to Outstanding Discovery Requests [Doc. No. 9]. For the reasons that follow, the motion is granted in part and denied in part. BACKGROUND Plaintiff's complaint was originally filed in state court and was removed to the Northern District of Illinois on September 7, 2017. Defendant James Adams is the sole member of defendant Xtreme Protection Services, LLC (“Xtreme”), a private security contractor agency. The complaint alleges that defendant Michael Bucon, acting as an agent of Adams or Xtreme, was hired by Diane Israel, plaintiff David Israel's sister, to eavesdrop on and stalk David. In April 2017, Bucon pleaded guilty to criminal trespass and attempted cyber stalking. Bucon has also agreed to the entry of judgment against him in this action. In July, while the case remained pending in state court, Plaintiff filed the present motion to compel Adams and Xtreme to produce documents and respond to interrogatories.[1] Defendants assert that most of the requests should be barred for infringing their Fifth Amendment right against self-incrimination. DISCUSSION The Fifth Amendment provides that “No person ... shall be compelled in any criminal case to be a witness against himself.” U.S. Const. amend. V. “The Fifth Amendment's protection ‘applies only when the accused is compelled to make a testimonial communication that is incriminating.’ ” Baltimore City Dep't of Social Servs. v. Bouknight, 493 U.S. 549, 554 (1990) (emphasis in original). In this case, it is undisputed that an order granting Plaintiff's motion would constitute compulsion. The question is whether Defendants’ responses would be both testimonial and incriminating. The mere fact that the responses require the disclosure of private information does not implicate the Fifth Amendment. See Fisher v. United States, 425 U.S. 391, 401 (1976). The Fifth Amendment also does not prevent the production “of every sort of incriminating evidence but applies only when the accused is compelled to make a Testimonial Communication that is incriminating.” Id. at 408; see also Bouknight, 493 U.S. at 555 (“[A] person may not claim the Amendment's protections based upon the incrimination that may result from the contents or nature of the thing demanded.”). However, the act of producing documents may have “communicative aspects of its own, wholly aside from the contents of the papers produced.” Fisher, 425 U.S. at 410; see United States v. Doe, 465 U.S. 605, 612 (1984) (“Although the contents of a document may not be privileged, the act of producing the document may be.”). In certain cases, production of documents may be communicative by conceding the existence of documents, acknowledging control over the documents, or indicating the respondent's “belief that the papers are those described.” Fisher, 425 U.S. at 410 (explaining further that resolving whether production is “testimonial” and “incriminating” is fact-specific and not susceptible to a categorical answer). *2 One preliminary issue that must be resolved is whether the Fifth Amendment privilege can be asserted by Xtreme, the corporate defendant. Adams argues that he can assert the privilege over Xtreme's production because he is the sole member-manager of Xtreme, a limited liability company. As a general rule, “corporations, LLCs, and other collective entities have no Fifth Amendment rights and cannot invoke the privilege against self-incrimination.” See Wachovia Secs., LLC v. Neuhauser, No. 04 C 3082, 2011 WL 1465653, at *3 (N.D. Ill. Apr. 18, 2011). Because production of records by a corporate custodian “is not deemed a personal act, but rather an act of the corporation,” the custodian may not assert the Fifth Amendment privilege on his own behalf. See Braswell v. United States, 487 U.S. 99, 110 (1988). Adams argues that a footnote in Braswell supports his argument that when a jury can presume a specific individual produced corporate documents, that individual may assert the privilege: “We leave open the question whether the agency rationale supports compelling a custodian to produce corporate records when the custodian is able to establish, by showing for example that he is the sole employee and officer of the corporation, that the jury would inevitably conclude that he produced the records.” Id. at 118 n.11. Unfortunately for Adams, neither he nor this Court has found a case expressly reading this footnote in his favor. See SEC v. A Chi. Convention Ctr., LLC, No. 13 C 982, 2013 WL 4010585, at *6 (N.D. Ill. Aug. 5, 2013) (“Neither the Seventh Circuit nor the Supreme Court has resolved this ‘open question,’ however, or carved out any ‘Sole Source’ exception.”); Cent. States v. Carstensen Freight Lines, Inc., No. 96 C 6252, 1998 WL 413490, at *3 (N.D. Ill. July 17, 1998) (ordering production over a Fifth Amendment objection by a corporation's “sole shareholder, sole employee and sole officer”). Adams has chosen the benefits of forming a limited liability company and must accept that the LLC designation makes the corporation's production subject to the “collective entity” rule. Cf. Doe, 465 U.S. at 609 (“[T]he business records of a sole proprietorship are no different from the individual owner's personal records.”) Accordingly, none of the discovery responses by Xtreme may be avoided on Fifth Amendment grounds. With this legal framework in mind, the Court turns to the remaining discovery responses sought by the motion to compel.[2] Nearly all of Plaintiff's requests for production frame related to an alleged plan to “eavesdrop or stalk David Israel.” For example, Request for Production Number 2 asks Adams to “[p]roduce all correspondence, texts and emails between Adams and any other person relating to the facts or claims asserted by David Israel in the Second Amended Complaint including the retention of any person to eavesdrop or stalk David Israel, including through listening devices or GPS devices placed by Bucon or any person working with Bucon.” Eavesdropping can be a criminal offense, see, e.g., 720 Ill. Comp. Stat. § 5/14-1 et seq., as is stalking, see, e.g., id. § 5/12-7.3.[3] Bucon even pleaded guilty to criminal offenses related to facts alleged in the complaint. Plaintiff's requests referring to “eavesdrop[ping] or stalk[ing]” or “eavesdropping or indimidating” clearly seek potentially incriminating material. Indeed, these requests as written tend to seek only incriminating documents, rather than information related to lawful surveillance. Any response at all would implicate Fifth Amendment concerns, as any documents produced would indicate Adams's belief that the documents described criminal activity. See Fisher v. United States, 425 U.S. 391, 410 (1976). Accordingly, the motion is denied as to Requests for Production Numbers 2-11. *3 The Court next concludes that Requests for Production Numbers 12-17 are too vague to compel a response. Plaintiff asks Adams to “Produce all Documents supporting or contravening paragraph[s] [15-19] of Counts I [and paragraph 19 of Count IV] of the Second Amended Complaint.” The Second Amended Complaint predated the removal of this action to federal court. The Third Amended Complaint, filed in state court on August 9, 2017, is the operative complaint in the case.[4] The Court presumes the paragraph numbering changed between the two versions of the complaint, because Count I of the Third Amended Complaint is comprised of Paragraphs 55-61, and Count IV includes Paragraphs 70-74. Paragraphs 15-19 are not affiliated with any particular claim and are included under the heading “Facts Common to All Counts.” It is also possible that the responses are protected by the Fifth Amendment privilege, as Count I arises under state wiretapping law, and Count IV is brought under the Federal Wiretapping Act, but due to the request's vagueness, the applicability of the privilege cannot conclusively be determined. Because the Court is wholly unable to discern the nature and scope of Requests for Production 12-17, the motion must be denied without prejudice. Interrogatory 1 asks for the identity of the persons who furnished the interrogatory answers, and Adams refused to answer based on the Fifth Amendment privilege. However, he cannot simultaneously assert the Fifth Amendment and refuse to provide the name(s) of the person or persons responding, i.e., those whose rights are allegedly implicated. The motion to compel is granted as to Interrogatory 1. Interrogatories 3 and 4 ask for information about mobile, landline, and home numbers registered to Xtreme and Adams personally from January 1, 2015 to the present. This request is facially overbroad, and the motion is denied. To the extent that Plaintiff alleges particular phone numbers directed communications to him during the relevant time frame, he can ask Defendants about those specific numbers. Interrogatory 10 directed to Adams asks for a description of all expenses incurred in Adams's “investigation and/or surveillance of David, his attorneys and/or any member of his family.” Unlike the other requests for evidence of criminal conduct, this request does not expressly seek incriminating testimony, and the motion to compel is granted. Interrogatory 11 to Adams asks him to describe in detail his affiliation with Xtreme and the tasks and responsibilities he performs within the scope of his employment. He identified himself as Xtreme's sole member-manager in his verification of Xtreme's answers, and he argues in response to the present motion that his close affiliation with Xtreme justifies the assertion of the Fifth Amendment in relation to Xtreme. Therefore, even if the Fifth Amendment privilege did apply to this answer, it has been waived. Furthermore, Adams's conclusory argument that a detailed description of the tasks he performs “is plainly testimonial and therefore prohibited” is unavailing. The Fifth Amendment does not bar a response unless it is also incriminating, and Adams has failed to demonstrate that a job description would be incriminating. The motion is granted as to Interrogatory 11. Interrogatory 14 to Adams asks whether he pleaded the Fifth Amendment on his behalf in proceedings before the Illinois Department of Financial and Professional Regulation. The Court finds that the question is relevant to whether Adams has previously waived the Fifth Amendment privilege. Interrogatory 14 served on Xtreme and Interrogatory 15 served on Adams ask Defendants to identify all lay and expert witnesses, along with a description of and basis for their expected testimony. Both Defendants responded “None at this time” and acknowledged that the response would be supplemented in the future “in accordance with a schedule to be set by the Court.” The Court cannot compel more fulsome answers than the ones given. Defendants are aware of their obligations to supplement and the consequences if they fail to do so. *4 Finally, the Court will address Plaintiff's Request for Inspection served on Adams. The request seeks permission to inspect a laundry list of electronic and data storage devices in Adams's “possession or control” (including smart phones, tablets, computers, and portable storage devices) that contain documents or data related to Plaintiff's claims of eavesdropping or stalking. The request was attached as an exhibit to the motion to compel, but the motion included no argument expressly addressing the request, and it was omitted from the motion's prayer for relief. However, it suddenly appeared in the reply brief's conclusion and prayer. The request must first be denied because the relief was not sought in the motion, only the reply. Second, the request to inspect is overbroad in the extreme, as it seeks permission to personally inspect all phones, tablets, computers, and storage devices containing any data related to the Plaintiff's claims, and it does not limit the nature of this physical inspection in any way. Finally, the request implicates the Fifth Amendment, as described above, because it seeks to inspect devices containing documents or data related to the crimes of “eavesdrop[ping] or stalk[ing].” CONCLUSION For the foregoing reasons, Plaintiff's Motion to Compel James Adams and Xtreme Protection Services, LLC to Respond to Outstanding Discovery Requests [Doc. No. 9] is granted in part and denied in part. SO ORDERED. ENTERED: Footnotes [1] The motion was fully briefed before the state court, but it was removed before ruling. Plaintiff filed the identical motion in this case, with the state court response and reply attached. However, Defendants filed an amended response and Plaintiff file an amended reply. [2] The prayer for relief also seeks an order compelling Xtreme to respond to document requests, but responses to those requests were not due until September 29, 2017, nearly three weeks after the motion was filed. Although Defendants mentioned the recent Xtreme document requests in their responsive brief, the issue was not ripe at the time the motion was filed, and the Court therefore will not expressly compel production. Xtreme, however, is cautioned that it should amend its production response in light of this order. [3] The Supreme Court of Illinois recently found certain language in the statute to be unconstitutionally overbroad. However, the language at issue was severable, and the relevant aspect of the stalking statute remains. See People v. Relerford, -- N.E.3d --, 2017 WL 5894178, at * 11-12 (Ill. Nov. 30, 2017). [4] The original motion to compel was filed in state court on August 14, 2017, five days after Plaintiff filed his Third Amended Complaint, but the motion nevertheless references the Second Amended Complaint. Plaintiff also did not amend the motion after it was renoticed before this Court following removal of the action in September.