Andersen v. Village of Glenview et al

Filing 122

MEMORANDUM Opinion and Order: Defendant Dr. Morris Kharasch's ("Kharasch") Motion for Protective Order 114 is granted. - Signed by the Honorable Susan E. Cox on 5/4/2018. [For further details see order] Mailed notice (np, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
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BARBARA ANDERSEN,
Plaintiff,
v.
VILLAGE OF GLENVIEW, et al.,
Defendant.

No. 17 cv 5761
Magistrate Judge Susan E. Cox

MEMORANDUM OPINION AND ORDER
For the reasons discussed herein, Defendant Dr. Morris Kharasch’s (“Kharasch”) Motion
for Protective Order [114] is granted. 1 Plaintiff Barbara Andersen (“Plaintiff”) filed the instant
suit, alleging that the Defendants engaged in a pattern of activities designed to give Plaintiff’s
ex-husband, Defendant Rick Gimbel (“Gimbel”), an advantage in his quest to obtain sole
custody of their two children. At its core, Plaintiff’s 70-page complaint claims that Gimbel’s
position as an E.R. physician allowed him to be in regular contact with police officers from the
Village of Glenview, and that Gimbel conspired with Defendant Detective Yakov Popkov
(“Popkov”) to have Plaintiff falsely arrested and maliciously prosecuted on stalking charges. It
is Plaintiff’s contention that Gimbel orchestrated the false arrest in order to undermine Plaintiff
in a custody dispute between Plaintiff and Gimbel. Two of the counts against Plaintiff were
dismissed, and she was acquitted of the third after a bench trial. 2 Kharasch was Gimbel’s
supervisor and the chief of emergency medicine for NorthShore University Health System.
Plaintiff alleges that Kharasch was interviewed by the Glenview Police Department in response
to Plaintiff’s complaints that Gimbel was using his connections with the police to harass

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All Defendants joined the instant motion on the record on April 17, 2018. The Court’s analysis and ruling applies
equally to all Defendants and their litigation counsel.
2
After two of the felony charges were dropped, the remaining felony charge for telephone harassment with intent to
kill was downgraded to simple misdemeanor telephone harassment prior to Plaintiff’s criminal trial.

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Plaintiff, and that Kharasch told the Glenview Police Department that Plaintiff was mentally ill.
Plaintiff’s complaint brings the following causes of action: 3 1) Intentional Infliction of
Emotional Distress against Popkov, Gimbel, and Kharasch; 2) Deprivation of Constitutional
Right to Parent-Child Society against Popkov; 3) Civil Conspiracy in the Deprivation of
Constitutional Right to Parent-Child Society against Popkov and Gimbel; 4) federal and state law
claims for False Arrest and Imprisonment against Popkov, 5) Civil Conspiracy for False Arrest
and Detainment against Popkov and Gimbel; 6) federal and state law claims for Malicious
Prosecution against Popkov; 7) Civil Conspiracy for Malicious Prosecution against Popkov and
Gimbel; 8) Intentional Infliction of Emotional Distress Relative to Refusal to Drop Frivolous
Criminal Charges against Gimbel; and 9) a Monell claim against the Village of Glenview for
malicious prosecution.
Discovery in this matter has been extraordinarily contentious. The Court went so far as
to require the parties to have their Rule 37 conferences on the record, in the hopes that recording
the proceedings would encourage the parties to remain civil. (Dkt. 99.) Having reviewed the
transcripts of those conferences, the Court’s hopes have been dashed, and all parties were
admonished on the record at the most recent status hearing before the Court for their equal role
in fostering the atmosphere of distrust and rancor that has pervaded this case. Presently before
the Court is Kharasch’s Motion for Protective Order, which seeks to bar “discovery of litigation
counsel’s communications and providing that such communications need not be identified on
privilege logs.” (Dkt. 114 at 1.) Plaintiff objects to Kharasch’s motion and has filed a brief in
opposition.
Although the parties spent the vast majority of their filings arguing issues related to the
attorney-client privilege, the common interest exception to waiver of privilege, and the work
3

Plaintiff has voluntarily dismissed her claim for defamation against Popkov, Gimbel, and Kharasch. (Dkt. 73.)

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product doctrine, the Court believes that there is a more fundamental problem with production of
the documents Plaintiff seeks: relevance. 4 Federal Rule of Civil Procedure 26(b)(1) defines the
appropriate scope of discovery as “any nonprivileged matter that is relevant to any party’s claim
or defense and proportional to the needs of the case, considering the importance of the issues at
stake in the action, the amount in controversy, the parties’ relative access to relevant information,
the parties resources, the importance of the discovery in resolving the issues, and whether the
burden or expense of the proposed discovery outweigh its likely benefit.” Here, Plaintiff seeks,
inter alia: 1) all correspondence between Kharasch’s attorneys in this matter and various
defendants, their attorneys, Village of Glenview officials and employees, and employees of the
Glenview Police Department; and 2) all correspondence between Kharasch’s attorneys in this
matter relative to Plaintiff after they were retained by Kharasch, with the exception
communications between Karasch and his attorneys. 5 (Dkt. 114-1.) Kharasch objected on the
basis of relevance, among myriad other grounds, and then filed the instant motion seeking a
protective order.

Plaintiff does not articulate why these documents are likely to contain

information relevant to Plaintiff’s claims. The closest Plaintiff comes is by noting that “the
custody litigation is part of this litigation” because “[b]ut for the charges, Andersen would not
have been subjected to another petition for greater custody rights and/or two years of concurrent
harassment in civil court (in addition to criminal court);” Plaintiff further notes that the custody
proceedings continued after the complaint in the instant suit was filed. (Dkt. 120 at 13).
First, the Court believes that the Plaintiff’s premise is a faulty one – the custody litigation
is not a part of this litigation. While it has some bearing on this suit, it is a separate proceeding
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To be clear, the parties both discussed relevance in their submissions to the Court, but the main thrust of their
arguments focused on issues related to privilege and waiver.
5
The Court focuses on Plaintiff’s Requests for Production Numbers 9 and 11, which were specifically cited in
Kharasch’s motion. However, this ruling applies with equal force to all post-litigation communications by
Kharasch’s attorneys.

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from this one, and should be treated as such. Second, the Plaintiff’s substantive allegations in
the instant case are exclusively backwards-looking. They concern a conspiracy between Gimbel
and Popkov to fabricate a stalking charge against the Plaintiff, and the resulting false arrest and
malicious prosecution stemming from that conspiracy, as well as the comments Kharasch made
to the Glenview Police Department regarding Plaintiff’s mental health.

Post-complaint

communications from Kharasch’s attorneys are unlikely to have any bearing on these substantive
allegations. To the extent that the ongoing post-complaint custody battle has any bearing on this
matter, it is limited to motive (i.e., the reason for the conspiracy) and damages (i.e., the
emotional and financial toll the custody battle is taking on Plaintiff, and any changes in
Plaintiff’s custody rights). Regarding motive, the Court believes it extremely unlikely that postcomplaint communications with Kharasch’s attorneys are likely to bear any fruit on this issue. It
is unclear precisely what relevant information Plaintiff hopes to obtain from these
communications. Other than a proverbial smoking gun, wherein Gimbel, Popkov, or one of their
attorneys openly admit to Kharasch’s attorneys that they brought trumped up charges against the
Plaintiff to gain a leg up in the custody battle, the Court is hard-pressed to see what the Plaintiff
expects to learn from these communications. This is especially true for Kharasch’s attorneys
who are presumably more interested in the intentional infliction of emotional distress claims that
would have no bearing on the issue of motive as it pertains to the custody proceedings at all. On
the matter of damages, the best information will come from either Plaintiff herself on the issues
of emotional distress or monetary damages, or publicly available information regarding the
outcome of the custody dispute. It is improbable that Kharasch’s attorneys’ communications will
shed any light on the measure of Plaintiff’s damages.
Finally, the burden and expense of the proposed discovery outweighs the likely meager

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probative value described above. Even if the Plaintiff is correct that the communications are not
protected by the attorney-client privilege because they include third parties, the communications
would still need to be reviewed for attorney work product.

Because the communications

Kharasch seeks to protect are post-litigation documents from his attorneys, many (if not most) of
the otherwise relevant documents will include counsel’s mental impressions and thoughts on this
suit. They will need to be reviewed very closely to try and extract the relevant information that
is not protected by the work product doctrine. The burden of this review is too high to justify in
light of the likely benefit to the Plaintiff. Therefore, the Court finds that Defendants need not
produce communications from their attorneys post-litigation nor identify them on a privilege log
because they are not within the scope of discoverable information as defined in Rule 26(b)(1),
and his Motion for Protective Order [114] is granted.

Entered: 5/4/18
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U.S. Magistrate Judge, Susan E. Cox

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