Grochocinski v. Mayer Brown Rowe & Maw LLP et al

Filing 127

MOTION by Plaintiff David Grochocinski to strike MOTION by Defendants Mayer Brown Rowe & Maw LLP, Ronald B GivenObjection to Alternative Ruling 126 Supplemental Objection (Joyce, Edward)

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS, EASTERN DISTRICT
DAVID GROCHOCINSKI, not individually,
but solely in his capacity as the Chapter 7
Trustee for the bankruptcy estate of
CMGT, INC.
Plaintiff,
v.
MAYER BROWN ROWE & MAW LLP,
RONALD B. GIVEN, and CHARLES W.
TRAUTNER,
Defendants.

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No. 06 C 5486
Judge Virginia M. Kendall

PLAINTIFF’S MOTION TO STRIKE DEFENDANTS’ SUPPLEMENTAL OBJECTION
TO MAGISTRATE DENLOW’S ALTERNATIVE RULING
Plaintiff David Grochocinski, not individually but solely in his capacity as the Chapter 7
Trustee for the bankruptcy estate of CMGT, Inc. (“Plaintiff”), through his attorneys, moves to
strike Defendants’ supplemental objection to Magistrate Denlow’s “Alternative Ruling.” In
support of this Motion, Plaintiff states as follows:
1.

On October 28, 2008, this Court entered an Order that: (a) stated this Court’s

intention to adopt Magistrate Denlow’s Alternative Ruling, (b) gave Defendants two weeks to
file an objection to the Alternative Ruling and (c) extended the discovery deadline to January 31,
2009. Defendants filed their objection to Magistrate Denlow’s Alternative Ruling within two
weeks of this Court’s October 28, 2008 Order. On January 30, 2009, this Court issued an order
sua sponte that mirrored its October 28, 2008 Order. The only difference between the October
28, 2008 Order and the January 30, 2009 Order is that the January 30th Order extended the
discovery deadline to March 31, 2009.

2.

In a thinly-veiled maneuver to argue the merits of their affirmative defenses in a

situation where Plaintiff has not been given leave to respond, Defendants have now filed a
supplemental objection to Magistrate Denlow’s Alternative Ruling under the guise that they
viewed this Court’s January 30, 2009 Order as an invitation to file a supplemental objection that
is based on evidence and testimony that Defendants’ received after Magistrate Denlow issued his
ruling.
3.

Plaintiff disagrees with Defendants’ interpretation of this Court’s January 30,

2009 Order. Defendants’ objection to Magistrate Denlow’s Alternative Ruling addresses: (1)
Defendants’ disagreement with Magistrate Denlow’s interpretation of the law regarding the “at
issue” waiver doctrine, and (2) Magistrate Denlow’s finding that Plaintiff had not yet done
anything that constitutes an at issue waiver.1 For the purpose of deciding whether Magistrate
Denlow’s Alternative Ruling is clearly erroneous or contrary to law, which is the standard for a
Rule 72(a) objection, any evidence or testimony that Defendants’ obtained after Magistrate
Denlow issued his Alternative Ruling is irrelevant.
4.

If Defendants believe that Plaintiff committed an “at issue” waiver after

Magistrate Denlow issued his order, then the proper course of action is to: (a) wait to find out
whether this Court agrees with Magistrate Denlow’s interpretation of the law regarding
application of at issue waiver, and then (b) file a motion to compel the production of the
privileged material that Defendants’ believe were put at issue. The parties could then brief and
argue whether Plaintiff has committed an “at issue” waiver pursuant to the test that this Court
finds is applicable.
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Magistrate Denlow’s Alternative Ruling is based on extensive briefing and argument by the
parties. Plaintiff stands firmly by the arguments he presented in his briefs and during oral argument. If
this Court has any doubts about the correctness of Magistrate Denlow’s Alternative Ruling, Plaintiff
respectfully encourages this Court to review the briefs that Plaintiff filed with Magistrate Denlow and the
transcript of the oral argument.

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5.

Much of Defendants’ supplemental objection argues the merits of their

affirmative defenses and tells this Court how Defendants expect Plaintiff to respond to those
defenses. Because this is not the proper time or procedure for doing so, Plaintiff is not going to
argue the merits of the affirmative defenses. Plaintiff’s refusal to be baited into that fight at this
time should not be looked upon as a concession that Plaintiff agrees with Defendants’ arguments
or interpretations of the evidence and testimony they proffer. To be sure, he does not. However,
as this Court previously contemplated, the dispute over the merits of Defendants’ affirmative
defenses will take place in the form of summary judgment motions after discovery is completed.
Suffice it to say that Plaintiff has absolutely no intention of relying on advice of counsel to
respond to any of Defendants’ arguments in support of their affirmative defenses. Plaintiff has
repeated this representation several times and continues to stand by it.
6.

The only point that Plaintiff is going to make regarding Defendants’ claimed need

for all of Plaintiff’s privileged pre-filing investigation material is this: if, as Defendants contend,
an easy and dispositive pre-filing investigation would have uncovered indisputable evidence that
the instant case is meritless, then Defendants should simply obtain that evidence and file a
summary judgment motion on the basis of that evidence. Defendants should not keep forcing
Plaintiff to spend time and money fighting privilege disputes so that Defendants can attempt to
prove that Plaintiff could have and/or should have obtained that mystery evidence before filing
this case.

Respectfully, Plaintiff reminds Defendants that the purpose of this bi-furcated

proceeding is to make sure that an allegedly meritless claim is not allowed to proceed to trial.
Certainly, if Defendants know of and have dispositive evidence, that purpose is most effectively
met by Defendants presenting their dispositive evidence at this time.

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7.

This Court knows what it intended when it issued its January 30, 2009 Order. If

this Court did not intend to invite Defendants to file a supplemental objection, Plaintiffs
respectfully request that this Court enter an order striking Defendants’ supplemental objection.
Wherefore, Plaintiff respectfully requests that this Court enter an order striking
Defendants’ supplemental objection to Magistrate Denlow’s Alternative Ruling.
Dated: February 17, 2009

Respectfully submitted,
DAVID GROCHOCINSKI, not individually, but
solely in his capacity as the Chapter 7 Trustee for
for the bankruptcy estate of CMGT, INC.
By: ____/s/ Edward T. Joyce___________
Plaintiff’s attorneys

Edward T. Joyce
Arthur W. Aufmann
Robert D. Carroll
EDWARD T. JOYCE & ASSOC., P.C. - Atty No. 32513
11 South LaSalle Street, Ste., 1600
Chicago, Illinois 60603

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