Grochocinski v. Mayer Brown Rowe & Maw LLP et al

Filing 227

TRANSCRIPT OF PROCEEDINGS held on 12/13/2007 before the Honorable Virginia M. Kendall. Motion Hearing. Court Reporter Contact Information: APRIL METZLER, 312-408-5154, April_Metzler@ilnd.uscourts.gov. IMPORTANT: The transcript may be viewed at the court's public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through the Court Reporter or PACER. For further information on the redaction process, see the Court's web site at www.ilnd.uscourts.gov under Quick Links select Policy Regarding the Availability of Transcripts of Court Proceedings. Redaction Request due 3/16/2011. Redacted Transcript Deadline set for 3/28/2011. Release of Transcript Restriction set for 5/24/2011. (Metzler, April)

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1 1 2 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION 3 4 5 DAVID GROCHOCINSKI, 6 Plaintiff, 7 Case No. 1:06-cv-5486 v. 8 Chicago, Illinois December 13, 2007 Motion Hearing MAYER BROWN ROWE & MAW, LLP, et al., 9 10 11 12 Defendants. ------------------------------TRANSCRIPT OF MOTION HEARING BEFORE THE HONORABLE VIRGINIA M. KENDALL UNITED STATES DISTRICT JUDGE 13 APPEARANCES: 14 For the Plaintiff: Edward T. Joyce & Associates By: Arthur W. Aufmann, and Robert D. Carroll 11 S. LaSalle St., Ste. 1600 Chicago, IL 60603 (312) 641-2600 For the Defendants: Novack & Macey By: Stephen Novack, and Steven J. Ciszewski 100 N. Riverside Plaza, Ste. 1500 Chicago, IL 60606 (312) 419-6900 Court Reporter: April M. Metzler, RPR, CRR 219 South Dearborn St., Rm. 2318-A Chicago, IL 60604 (312) 408-5154 15 16 17 18 19 20 21 22 23 24 25 Proceedings recorded by mechanical stenography; transcript produced by notereading. 2 1 (Commenced at 10:06 a.m.) 2 THE CLERK: 06-5486, Grochocinski versus 00:00:04 3 Mayer, Brown. 00:00:08 4 00:00:09 5 00:00:13 6 THE COURT: 00:00:13 7 MR. CISZEWSKI: 00:00:14 8 Steven Ciszewski, C-i-s-z-e-w-s-k-i, also for the 00:00:19 9 defendants. 00:00:19 10 THE COURT: 00:00:19 11 MR. AUFMANN: 00:00:20 12 Arthur Aufmann and Robert Carroll on behalf of the 00:00:22 13 plaintiff. 00:00:23 14 THE COURT: 00:00:24 15 Do you object to the plaintiff's motion for 00:00:26 16 00:00:29 17 00:00:32 18 reason why we did -- why we made our objection, we have 00:00:35 19 a short fuse on this discovery period. 00:00:39 20 until the end of January -- 00:00:40 21 THE COURT: 00:00:41 22 MR. NOVACK: 00:00:44 23 both the trustee and Mr. Spehar's counsel asked us for 00:00:48 24 extensions of time to respond to our discovery and to 00:00:51 25 extend the deposition dates -- MR. NOVACK: Good morning, your Honor. Steve Novack, N-o-v-a-c-k, on behalf of defendants. Good morning. Good morning, your Honor. Good morning. Good morning, your Honor. Good morning. protective order? MR. NOVACK: We do, your Honor. And the You only gave us That's right. -- to complete discovery. And 3 00:00:52 1 THE COURT: Oh, I thought I'm looking at a 00:00:54 2 motion for protective order. 00:00:57 3 looking for? 00:01:00 4 MR. AUFMANN: 00:01:01 5 THE COURT: 00:01:03 6 00:01:05 7 00:01:06 8 00:01:08 9 00:01:09 10 00:01:11 11 us for extensions -- and we accommodated them, 00:01:14 12 absolutely accommodated them -- nobody suggested to us 00:01:17 13 that there was going to be another motion, which nobody 00:01:20 14 ever told us about, asking for an interim period whereby 00:01:25 15 Mr. Spehar would produce his documents first to the 00:01:28 16 trustee, the trustee would take a period to do 00:01:31 17 something, and then there would be an intervening motion 00:01:36 18 for -- possibly an intervening motion for work-product 00:01:40 19 privilege claims. 00:01:45 20 impending January 28 cutoff, we objected. 00:01:48 21 00:01:51 22 occurred to us that without getting into all of the 00:01:54 23 issues of waiver and all the issues of whether this is 00:01:58 24 work product or not, all of which we're reserving, one 00:02:01 25 overarching observation came to us, which is they have Isn't that what I'm Isn't that what I have up for today? Correct. All right. It's not a motion to extend time. MR. NOVACK: It is not, but it will have that effect, and that's what I'm saying. THE COURT: MR. NOVACK: Oh, okay. Go ahead. When both those parties asked So faced with all of that and our And as we were looking at the situation, it 4 00:02:06 1 put into issue -- 00:02:07 2 THE COURT: 00:02:07 3 MR. NOVACK: 00:02:11 4 we think trumps any possible work-product privilege 00:02:16 5 assertion. 00:02:19 6 it, and so we responded the way we responded. 00:02:22 7 THE COURT: 00:02:24 8 MR. AUFMANN: 00:02:27 9 00:02:32 10 they've filed their response two days ago. 00:02:35 11 reply as quickly as we could in order to address that 00:02:38 12 issue -- 00:02:38 13 THE COURT: 00:02:40 14 MR. AUFMANN: 00:02:41 15 THE COURT: 00:02:42 16 MR. CARROLL: 00:02:44 17 if you didn't get it. 00:02:47 18 deliver it to your chambers. 00:02:48 19 00:02:50 20 00:03:02 21 Okay. 00:03:02 22 MR. AUFMANN: 00:03:04 23 00:03:09 24 00:03:12 25 Right. -- at issue a waiver doctrine And we thought why don't we just shortcut Okay. Counsel? Judge, in terms of the at issue waiver argument that the defendants have raised, We filed a Is there a reply? It was filed yesterday. Oh, I don't have that. It should have -- I apologize I did instruct somebody to THE COURT: Oh, okay. I don't have that. Well, why don't you go pull it off. Go ahead. In any event, I don't think the at issue waiver doctrine applies whatsoever here. More to the point, the procedure that we're suggesting, I believe, is entirely reasonable. No one 5 00:03:15 1 has challenged the fairness or the reasonableness of the 00:03:18 2 procedure we're suggesting. 00:03:21 3 really raising is that if this procedure's put into 00:03:25 4 place, it could make it difficult to comply with the 00:03:28 5 Court's discovery cutoff of January 28th. 00:03:33 6 right about that. 00:03:35 7 feeling is about potentially extending that date. 00:03:38 8 would certainly have -- since we're the ones who are 00:03:41 9 proposing this procedure -- even though we think it's 00:03:44 10 entirely fair since we are the ones who are proposing 00:03:47 11 this procedure -- we would have no objection to 00:03:49 12 extending that date, that January 28th date, so that 00:03:52 13 this procedure could be engaged in and -- 00:03:55 14 THE COURT: 00:03:56 15 MR. AUFMANN: 00:03:58 16 00:03:59 17 00:04:01 18 00:04:01 19 00:04:04 20 response isn't something that -- you've put this into 00:04:08 21 play filing this lawsuit. 00:04:12 22 not this is going to be a situation of unclean hands or 00:04:16 23 not. 00:04:17 24 00:04:20 25 The only issue counsel is He might be I don't know what your Honor's We Well -To me, that's the issue that's in front of your Honor. THE COURT: I'm not sure. They're getting me the reply. But I don't understand why the at issue MR. AUFMANN: points, your Honor. We need to address whether or It's really -- it's really two 6 00:04:22 1 THE COURT: Okay. 00:04:23 2 MR. AUFMANN: 00:04:24 3 understanding of what your Honor was talking about when 00:04:28 4 you allowed discovery to go forward on the unclean hands 00:04:31 5 issue. 00:04:38 6 trustee's decision not to file a motion in California to 00:04:42 7 try and vacate the default judgment. 00:04:45 8 00:04:47 9 00:04:50 10 period of time. 00:04:53 11 what was the motivation for the filing of the lawsuit, 00:04:56 12 whether the -- I mean, all of the steps leading up to 00:04:59 13 the failure to move to dismiss this suit could 00:05:03 14 potentially show intent or a pattern of behavior or some 00:05:09 15 theory by the defendants as to why this would be unclean 00:05:12 16 hands. 00:05:12 17 00:05:13 18 we've tried to address in our reply is that this whole 00:05:16 19 premise that started this unclean hands argument about, 00:05:21 20 Oh, the trustee could have just gone into California and 00:05:23 21 gotten this default vacated, that whole premise is 00:05:27 22 wrong. 00:05:28 23 00:05:30 24 That's why we're doing this. 00:05:32 25 it may be wrong, otherwise I wouldn't have permitted We have a definite We think it was a narrow issue directed to the THE COURT: Okay? Well, it may not be. Unclean hands could cover your behavior throughout the whole It's really getting to the issue as to MR. AUFMANN: THE COURT: Right. And one of the things Well, fine. Fair enough. But it doesn't look like 7 00:05:35 1 this particular path of discovery to go first, so that 00:05:39 2 we could address why this is set forth in the odd way 00:05:44 3 that it's set forth. 00:05:45 4 MR. AUFMANN: 00:05:46 5 But one of the things we've done in our 00:05:48 6 reply -- whereas their arguments to you earlier about 00:05:51 7 how easy this would have been to vacate this default did 00:05:54 8 not cite California law, we provided the cite to the 00:05:57 9 statute and the requirements that must be met. 00:06:02 10 believe we've demonstrated already that those 00:06:04 11 requirements could not have been met. 00:06:06 12 00:06:08 13 00:06:09 14 MR. AUFMANN: 00:06:10 15 THE COURT: 00:06:12 16 00:06:14 17 MR. AUFMANN: 00:06:14 18 THE COURT: 00:06:21 19 MR. AUFMANN: 00:06:22 20 THE COURT: 00:06:25 21 result of our first issue really shouldn't be the 00:06:29 22 response as to today's issue, which is you want a 00:06:33 23 protective order and whether or not that protective 00:06:38 24 order can be put into play, whether we adopt the 00:06:41 25 procedure that would delay discovery. THE COURT: Understood. And I Meaning what, in discovery, is that what you're saying, or ... here? No, in our reply -In the reply that I don't have Is that it? Right. Okay. But, of course -- I'm not saying --- whether that may be the end 8 00:06:44 1 MR. AUFMANN: Right. The argument they made 00:06:45 2 about at issue is, Judge, we never need to address any 00:06:49 3 issues of work-product privilege because -- simply 00:06:52 4 because my client in response to an accusation that 00:06:56 5 says, You filed this lawsuit in bad faith, said, No, I 00:06:59 6 didn't file it in bad faith, I filed it in good faith, 00:07:02 7 that does not put at issue any work-product privilege 00:07:09 8 documents. 00:07:09 9 00:07:11 10 issue doctrine, there must be both a claim asserted and 00:07:16 11 reliance on specific defined identifiable privileged 00:07:23 12 material. 00:07:26 13 on, you're talking about a situation where the plaintiff 00:07:28 14 said, I did not blow the statute of limitations because 00:07:32 15 my lawyer told me that I first had a claim on 00:07:36 16 such-and-such a date and the discovery rule applies 00:07:39 17 here, and, therefore, the time for my claim to run 00:07:43 18 didn't start running until my lawyer told me. 00:07:46 19 not put into issue a specific communication with his 00:07:49 20 lawyer and, thus, cannot sit back and say, No, you can't 00:07:52 21 see that communication with my lawyer, it's privileged. 00:07:55 22 It's the old you can't have your cake and eat it too. 00:07:58 23 00:08:00 24 here. 00:08:04 25 he's asserting or in defense of something that they're In order to put -- in order to invoke the at For example, in the case that they're relying He has The trustee has not done anything like that The trustee has not either in support of a claim 9 00:08:06 1 asserting said, No, what I did was justified because I'm 00:08:10 2 relying on a specific piece of work product material. 00:08:15 3 If he had made a specific reference like that and relied 00:08:18 4 on a specific piece of work product material, he 00:08:21 5 couldn't then say, Okay, I'm relying on that, but you 00:08:24 6 can't see it. 00:08:27 7 is all about, and that hasn't happened here. 00:08:29 8 00:08:32 9 00:08:35 10 That's ridiculous, there's no evidence of bad faith. 00:08:38 11 fact, everything that's been done here is in good faith. 00:08:41 12 And they want to take the position now that because they 00:08:44 13 made a baseless accusation against him and he denied it 00:08:47 14 that suddenly all of his attorney work product is -- 00:08:50 15 there's just been a complete blanket waiver? 00:08:53 16 not at all the way the at issue doctrine works -- 00:08:56 17 00:08:57 18 get off the baseless accusation, otherwise I wouldn't 00:09:00 19 have ordered the discovery. 00:09:01 20 A response? 00:09:02 21 MR. NOVACK: 00:09:04 22 and who knows maybe it'll become three things, but two 00:09:08 23 things at the outset. 00:09:09 24 No. 1, this was said in their reply brief -- 00:09:13 25 THE COURT: That's what the at issue waiver doctrine All that happened here is they accused my guy of bad faith. We came in on his behalf and said, THE COURT: Okay. In This is And, again, you need to Let me say two things Judge, I am going to take a few minutes 10 00:09:15 1 and read the reply brief, but, go ahead and argue it -- 00:09:18 2 00:09:20 3 00:09:21 4 00:09:23 5 that in a work product privilege situation there are two 00:09:25 6 requisite elements to raise the at issue waiver. 00:09:30 7 that a defense was raised that implicates it. 00:09:32 8 THE COURT: 00:09:33 9 MR. NOVACK: 00:09:34 10 they add, it's beyond the elements that we've put in our 00:09:37 11 case law -- that there must be a specific reference to 00:09:40 12 specific documents by the party claiming the 00:09:43 13 work-product privilege. 00:09:46 14 that, both by Magistrate Judge Schenkier, the Beneficial 00:09:50 15 Franchise case and the Quality Croutons case. 00:09:53 16 those cases dealt with the attorney-client privilege, 00:09:57 17 not with the work product privilege. 00:09:58 18 00:10:01 19 They're governed by separate standards. 00:10:05 20 privilege is governed by this law of the state of the 00:10:08 21 forum. 00:10:11 22 00:10:14 23 cited in -- I can't remember if we cited it or they 00:10:19 24 cited it, frankly -- 00:10:19 25 MR. NOVACK: -- one thing to you before you do. They make a very bold statement in there One, Right. And, two -- and this is what They cite only two cases for Both of We know that those privileges are different. Attorney-client The work product is federal law. Judge Denlow's decision in Eagle which is THE COURT: Okay. 11 00:10:20 1 MR. NOVACK: -- in the earlier briefs points 00:10:21 2 out that the standards governing attorney-client 00:10:24 3 privilege and work-product privilege are different. 00:10:27 4 00:10:29 5 apply to an attorney-client privilege. 00:10:32 6 whatsoever to do with work-product privilege. 00:10:35 7 00:10:39 8 their good faith as a defense, Judge, I would say to you 00:10:43 9 that from cradle to grave they raised it every step of 00:10:48 10 the way. 00:10:51 11 said -- and they convinced your Honor, because you 00:10:53 12 denied our motion to dismiss, that we failed to present 00:10:57 13 evidence that plaintiff acted fraudulently or in bad 00:11:00 14 faith. 00:11:02 15 Spehar's conduct we have to look to; we have to look to 00:11:05 16 the trustee. 00:11:06 17 00:11:08 18 that if they filed the case with a good-faith belief 00:11:12 19 that the malpractice claims were meritorious, then the 00:11:14 20 case cannot be a fraud on the Court. 00:11:18 21 critical element to defendants' fraud theory -- they're 00:11:23 22 interpreting our theory -- is not whether Spehar has a 00:11:27 23 financial interest in the case. 00:11:28 24 plaintiff, it is whether the trustee knowingly filed 00:11:31 25 meritless or untrue claims. So the second element, well, it may well It has nothing Secondly, the notion that they didn't raise In response to the motion to dismiss they Your Honor agreed and said it's not just On reconsideration they said to your Honor They said the According to the That's what we're trying to 12 00:11:34 1 get at. 00:11:34 2 00:11:37 3 ruling and granted us the discovery and you asked me 00:11:40 4 what I was going to do, and I said, Well, we'll take the 00:11:43 5 trustee's deposition, which we've noticed, we'll take 00:11:47 6 Spehar's deposition, which we've noticed, and I said we 00:11:49 7 may need discovery from the former shareholders and 00:11:52 8 officers. 00:11:54 9 that? 00:11:54 10 00:11:57 11 will testify that they were never -- this is from the 00:11:59 12 transcript, I'm quoting. 00:12:02 13 that they will testify that they were never contacted by 00:12:05 14 the trustee before he filed the complaint, that they 00:12:08 15 don't believe in this complaint, and had they been asked 00:12:11 16 by the trustee they would have told him so. 00:12:13 17 00:12:16 18 was no objection. 00:12:20 19 was. 00:12:22 20 everybody when your Honor ruled that one of the avenues 00:12:25 21 of discovery was what was the good faith -- 00:12:28 22 00:12:31 23 another motion that wasn't filed. 00:12:34 24 protective order, and I'm going to read all of this, and 00:12:36 25 I'll be out in a few minutes. And when your Honor made your bifurcation And your Honor said, Well, why do you need I said, Because they are -- We believe they I said this: That we believe Your Honor's response was, Okay. And there Mr. Aufmann wasn't here; Mr. Joyce There was no objection to that. THE COURT: Okay. It was clear to I am not going down I'm dealing with the Okay? 13 00:27:24 1 (Recess taken.) 00:27:24 2 THE COURT: 00:27:26 3 reviewed all of the papers now, which I'm sorry I didn't 00:27:29 4 have the reply brief in hand. 00:27:34 5 know what time that it came in, but I have read it now, 00:27:37 6 and this is what I'm going to do. 00:27:39 7 It is true that my issue, I think, is 00:27:42 8 broader than the way the plaintiffs have narrowly 00:27:45 9 defined it. 00:27:48 10 communications are going to start to percolate up as 00:27:51 11 potential privileged disputes. 00:27:55 12 extending this issue of discovery to March 3rd. 00:27:59 13 ordering that a privilege log be prepared for any 00:28:03 14 document that you assert privilege on and that that 00:28:06 15 privilege log be prepared and submitted to Judge Denlow, 00:28:11 16 who's going to review it, who is your magistrate judge 00:28:13 17 on this case, by January -- well, let's see. 00:28:19 18 00:28:25 19 have to give you 'til shortly thereafter. 00:28:28 20 something that you're generating as you're doing 00:28:30 21 discovery. 00:28:33 22 Judge Denlow by March 10th, so one week after the close 00:28:37 23 of discovery. 00:28:40 24 period of time, because as requests are made they can be 00:28:43 25 brought to Judge Denlow's attention. Okay. Gentlemen, I have It was filed -- I don't That being said, all of these And as such I'm I am If I give you discovery to March 3rd, I'll It should be So I'm going to require that you give it to I don't think that is too short of a 14 00:28:44 1 I'm referring any issues regarding the 00:28:48 2 discovery of privilege matters to Judge Denlow. 00:28:51 3 then I will see you all again on March 19th, so strike 00:28:54 4 any other schedule, except this one, and we'll readdress 00:28:58 5 where we're headed with this issue on the 19th. 00:29:01 6 00:29:03 7 you believe that it's something that's privileged and 00:29:05 8 shouldn't be turned over, you're going to need to 00:29:08 9 address it with Judge Denlow. 00:29:09 10 MR. AUFMANN: 00:29:11 11 THE COURT: 00:29:13 12 And I'm going to give Judge Denlow a call right now and 00:29:17 13 explain the situation so he knows what's coming. 00:29:19 14 MR. NOVACK: 00:29:21 15 THE COURT: 00:29:21 16 MR. NOVACK: 00:29:23 17 Because it sounds like what's going to 00:29:25 18 happen is Spehar, instead of producing it to us, it 00:29:27 19 sounds like it's going to be produced to the trustee. 00:29:30 20 And I just wonder if the order could require that Spehar 00:29:34 21 Bates stamp all the documents that it produces to the 00:29:37 22 trustee, keep a copy, so there's never -- 00:29:40 23 00:29:42 24 idea, and that's something I've done in the past when I 00:29:45 25 was litigating and I think that's very helpful. And So move forward with your requests, and if THE COURT: Is March 19th a status date? It is for me, not Judge Denlow. Okay? Judge, could I ask one thing -Yes. -- to be included in the order? I think that's a very helpful 15 00:29:47 1 00:29:50 2 be Bates stamped so we know exactly what he is 00:29:52 3 reviewing, and then that set goes to the judge and the 00:29:55 4 judge reviews it. 00:29:58 5 MR. NOVACK: 00:30:00 6 MR. AUFMANN: 00:30:00 7 MR. NOVACK: 00:30:03 8 they're asking for is that instead of Spehar responding 00:30:06 9 to our subpoena -- I believe this is what they asked 00:30:08 10 00:30:08 11 THE COURT: 00:30:09 12 MR. NOVACK: 00:30:11 13 THE COURT: 00:30:11 14 MR. NOVACK: 00:30:13 15 THE COURT: 00:30:17 16 MR. CARROLL: 00:30:17 17 the Bates number of the documents being withheld on the 00:30:18 18 basis of privilege on the privilege log. 00:30:21 19 00:30:23 20 00:30:24 21 MR. NOVACK: 00:30:24 22 THE COURT: 23 (Concluded at 10:36 a.m.) 24 25 So as you give it to the trustee, it would You should be fine with that. Well, it's actually -Thank you. Spehar isn't here today. What for -- THE COURT: should be. Okay. I know. -- he send it to them. Right. So I'm asking Spehar -Yes, that is fine. We understand. Exactly. And we'll put That's the way it Thank you. Thank you, your Honor. Thank you. - - - 16 1 2 3 4 5 C E R T I F I C A T E 6 7 I certify that the foregoing is a correct transcript 8 from the record of proceedings in the above-entitled 9 matter. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 April M. 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