Grochocinski v. Mayer Brown Rowe & Maw LLP et al
Filing
124
MINUTE entry before the Honorable Virginia M. Kendall: This Court intends to adopt Judge Denlows alternative ruling. Defendants are given two weeks from the date of this order to file objections to the alternative ruling. In addition, Defendants Unopposed Motion to Reset the Discovery Deadline is granted so that discovery may be completed pending the resolution of these privilege issues. Discovery is ordered closed March 31, 2009.Mailed notice (jms, )
Order Form (01/2005)
United States District Court, Northern District of Illinois
Name of Assigned Judge
or Magistrate Judge
Virginia M. Kendall
CASE NUMBER
06 C 5486
CASE
TITLE
Sitting Judge if Other
than Assigned Judge
DATE
1/30/2009
GROCHOCINSKI vs. MAYER BROWN ROWE & MAW et al
DOCKET ENTRY TEXT
This Court intends to adopt Judge Denlow’s alternative ruling. Defendants are given two weeks from the
date of this order to file objections to the alternative ruling. In addition, Defendants’ Unopposed Motion to
Reset the Discovery Deadline is granted so that discovery may be completed pending the resolution of these
privilege issues. Discovery is ordered closed March 31, 2009.
O[ For further details see text below.]
Docketing to mail notices.
STATEMENT
Plaintiff David Grochocinski (“Grochocinski”), in his capacity as Chapter 7 Trustee for the bankruptcy
estate of CMGT, Inc., brought suit against Defendants Mayer Brown Rowe & Maw LLP, Ronald B. Given and
Charles v. Trautner (collectively “Defendants”), alleging legal malpractice. Defendants brought a Motion to
Dismiss, arguing in part that Grochocinski’s case should be dismissed because it amounted to a fraud on the
Court, or, as this Court has framed it, because he filed the suit with “unclean hands.” This Court denied the
Motion to Dismiss and the Motion to Reconsider that followed; however, it found Defendants’ “unclean hands”
argument very persuasive. As such, this Court bifurcated the case and ordered the parties to conduct discovery
solely on the issue of “unclean hands” so that this Court, with all the relevant facts in front of it, could decide
whether the case should be dismissed on that basis. Grochocinski then brought a Motion for a Protective Order,
and following discussion of some of the relevant privilege issues, this Court ordered Grochocinski to prepare a
privilege log listing any document to which he wanted to assert privilege and submit it to Magistrate Judge
Denlow for his review. In addition, this Court referred all issues regarding the discovery of privilege matters to
Judge Denlow.
Grochocinski argued in Judge Denlow’s Court that documents related to his pre-lawsuit investigation and
mental impressions of his case were privileged and thus not discoverable. Defendants argued that such
documents were not privileged because the pre-lawsuit investigation had been put at issue and because
Grochocinski waived the attorney-client and work product privileges. Judge Denlow issued a Memorandum
Opinion and Order on June 9, 2008 granting in part and denying in part Grochocinski’s Motion for a Protective
Order. Specifically, he granted the protective order regarding communications that took place after the filing of
the lawsuit but denied the protective order regarding communications that preceded the filing of the lawsuit. In
so ruling, Judge Denlow held that this Court’s orders placed the communications preceding the filing of the
instant lawsuit “at issue” and thus waived any privilege that would otherwise apply. Specifically, Judge Denlow
stated that the pre-filing communications were “exactly the type of information Judge Kendall intended the
06C5486 GROCHOCINSKI vs. MAYER BROWN ROWE & MAW et al
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STATEMENT
parties to discover, in order to resolve the issue of whether Plaintiff filed this lawsuit in good faith.” Judge
Denlow also issued an alternative ruling addressing “at issue” waiver by a party, attorney-client privilege, and
work product doctrine and granting the Motion for a Protective Order in full. Such alternative ruling comes into
play only if this Court sets aside the original Order. Grochocinski objected to Judge Denlow’s order, arguing
that this Court did not and in fact could not order the production of privileged documents.
Here, Judge Denlow misinterpreted this Court’s referral. This Court did not intend to inherently put all
privileged communications regarding Grochocinski’s motivation for filing the instant lawsuit at issue by opening
discovery on the “unclean hands” issue. The Court merely opened discovery regarding Grochocinski’s
motivation for filing this lawsuit, and he must now make his own decisions as to what potentially privileged
communications to reveal in order to support his case. As such, this Court intended, by its referral, for Judge
Denlow to address the privilege issues that would and did arise as a result of this Court opening discovery on the
“unclean hands” issue. Therefore, this Court rejects Judge Denlow’s primary ruling.
This Court intends to adopt Judge Denlow’s alternative ruling. Defendants are given two weeks from
the date of this order to file objections to the alternative ruling. In addition, Defendants’ Unopposed Motion to
Reset the Discovery Deadline is granted so that discovery may be completed pending the resolution of these
privilege issues. Discovery is ordered closed March 31, 2009.
So ordered.
06C5486 GROCHOCINSKI vs. MAYER BROWN ROWE & MAW et al
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