CitiMortgage, Inc. v. Chicago Bancorp, Inc. et al

Filing 214

MEMORANDUM AND ORDER : IT IS HEREBY ORDERED that Plaintiffs Amended Motion to Compel Testimony Regarding February 2013 Mediation in the First Chicago Bancorp Suit is GRANTED in part. (Doc. No. 187 .) Defendant Chicago Bancorp, Inc. shall produce a Rule 30(b)(6) representative for a deposition on a mutually agreeable date on or before January 12, 2016 to testify solely with respect to topics unrelated to the mediation, such as: who generated the balance sheet, how it was generated and when , whether it was provided to third parties (other than in the mediation), and how it compares to other documents reflecting Chicago Bancorps net worth as of December 31, 2012. Plaintiff will not be permitted to question the deponent about any sta tement that was made or conduct that occurred during the February 2013 mediation. IT IS FURTHER ORDERED that the Clerk of Court shall place Doc. Nos. 177 and 187 , and exhibits thereto, under seal. Signed by District Judge Audrey G. Fleissig on 01/08/2016. (KCB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

CITIMORTGAGE, INC.,
Plaintiff,
v.
CHICAGO BANCORP, INC., et al.,
Defendants.

)
)
)
)
)
)
)  
)
)

Case No. 4:14CV01278 AGF

MEMORANDUM AND ORDER
This matter is before the Court on the motion (Doc. No. 187) of Plaintiff
CitiMortgage, Inc. (“CMI”), to compel testimony regarding a balance sheet purporting to
reflect the net worth of Defendant Chicago Bancorp, Inc. (“Chicago Bancorp”), which
was first produced in a mediation that occurred in a prior lawsuit by CMI against Chicago
Bancorp in this district. When CMI attempted to question Chicago Bancorp’s owners,
Stephen and John Calk, about the balance sheet during their depositions1 in this case,
defense counsel objected. Defense counsel asserted that the balance sheet was protected
by Federal Rule of Evidence 408 and the parties’ mediation agreement. CMI now asks
the Court to compel Stephen Calk, as a party, and John Calk, as representative of Chicago
Bancorp, to appear for a deposition regarding the balance sheet. Because Chicago
Bancorp’s witness referenced the balance sheet independently of the mediation, in

1

Stephen Calk was deposed as a separate party in this case, and John Calk was
deposed as Chicago Bancorp’s Rule 30(b)(6) representative. However, John Calk is also
a party in this case.

response to relevant discovery about the net worth of Chicago Bancorp, the Court will
grant CMI’s motion in part. The Court will order a 30(b)(6) representative of Chicago
Bancorp to appear for a deposition to testify with respect to the balance sheet, but will
preclude CMI from inquiring about any statements made about the balance sheet during
the mediation, or any other statements made or conduct occurring during the mediation.
Without commenting on the probative value of the balance sheet, the Court finds
that this information appears to be relevant to issues in this case regarding Chicago
Bancorp’s proclaimed net worth at a certain point in time, and therefore within the scope
of discovery permitted by Federal Rule of Civil Procedure 26.
The question, then, is whether information about the balance sheet is nevertheless
protected from discovery because the balance sheet was first produced during mediation.
Although it is not clear from the parties’ briefs when the balance sheet was created,
Chicago Bancorp’s opposition brief suggests in passing that Chicago Bancorp prepared
the document for the mediation. As such, it would ordinarily be protected from
discovery. However, Chicago Bancorp’s representative, John Calk, subsequently and
independently referred to the balance sheet during a Rule 30(b)(6) deposition in the prior
litigation, when responding to relevant inquiry about Chicago Bancorp’s cash assets as of
December 31, 2012. (Doc. No. 187-1 at 7.) By identifying the balance sheet in response
to relevant discovery, outside the context of the mediation, Chicago Bancorp made the
balance sheet independently discoverable. See Fed. R. Evid. 408 advisory committee’s
note to 1974 (“A party should not be able to immunize from admissibility documents
otherwise discoverable merely by offering them in a compromise negotiation.”).
‐2‐ 

Therefore, the Court will permit CMI to inquire about the balance sheet, except as
to its use in the mediation. The Court will permit CMI to inquire about topics such as
who generated the balance sheet, how it was generated and when, whether it was
provided to third parties (other than in the mediation), and how it compares to other
documents reflecting Chicago Bancorp’s net worth as of December 31, 2012. However,
pursuant to Federal Rule of Evidence 408, Local Rule 6.04, and the parties’ mediation
agreement, the Court will not permit CMI to inquire about any conduct that occurred or
statement that was made during the mediation, whether about the balance sheet or any
other subject. The Court will also grant Defendants’ request to direct the Clerk of Court
to place CMI’s motion under seal, as it refers to statements made during the mediation.
Given the limited scope of inquiry that will be permitted, neither the parties’
attorneys nor the mediator need be made witnesses in the case, as Defendants suggested.
Moreover, the Court will not permit CMI to depose both Stephen Calk and John Calk.
Rather, the Court will order only a Rule 30(b)(6) representative of Chicago Bancorp with
knowledge of the topics set forth above to appear for a deposition.
Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s Amended Motion to Compel
Testimony Regarding February 2013 Mediation in the First Chicago Bancorp Suit is
GRANTED in part. (Doc. No. 187.) Defendant Chicago Bancorp, Inc. shall produce a
Rule 30(b)(6) representative for a deposition on a mutually agreeable date on or before
January 12, 2016 to testify solely with respect to topics unrelated to the mediation, such
as: who generated the balance sheet, how it was generated and when, whether it was
‐3‐ 

provided to third parties (other than in the mediation), and how it compares to other
documents reflecting Chicago Bancorp’s net worth as of December 31, 2012. Plaintiff
will not be permitted to question the deponent about any statement that was made or
conduct that occurred during the February 2013 mediation.
IT IS FURTHER ORDERED that the Clerk of Court shall place Doc. Nos. 177
and 187, and exhibits thereto, under seal.

_______________________________
AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 8th day of January, 2016.

‐4‐