Perez v. Mueller et al

Filing 137

ORDER re 108 MOTION to Compel Deposition Testimony of Secretary of Labor Employee Charles Visconti filed by Roger Mueller, The Roger L and Veronica S Mueller 1996 Exemption Trust Dated 11/14/96 F/B/O Craig M Mueller, The Craig M Mue ller 1996 Trust Dated 11/14/96, Veronica Mueller, The Carey V Mueller 1996 Trust Dated 11/14/96, The Roger L and Veronica S Mueller 1996 Exemption Trust Dated 11/14/96 F/B/O Christopher L Mueller, The Christopher L Mueller 1996 Trust Dated 11/ 14/96, The Roger L and Veronica S Mueller 1996 Exemption Trust Dated 11/14/96 F/B/O Carey V Mueller, 121 Second MOTION to Compel Discovery From the Secretary of Labor filed by Roger Mueller, The Roger L and Veronica S Mueller 1996 Exe mption Trust Dated 11/14/96 F/B/O Craig M Mueller, The Craig M Mueller 1996 Trust Dated 11/14/96, Veronica Mueller, The Carey V Mueller 1996 Trust Dated 11/14/96, The Roger L and Veronica S Mueller 1996 Exemption Trust Dated 11/14/96 F/B/O Chr istopher L Mueller, The Christopher L Mueller 1996 Trust Dated 11/14/96, The Roger L and Veronica S Mueller 1996 Exemption Trust Dated 11/14/96 F/B/O Carey V Mueller: Not later than October 21, 2016, the Secretary shall provide to the court for in camera review copies of all documents identified as privileged in the most-recent privilege log. Signed by Magistrate Judge William E. Duffin on 10/11/2016. (cc: all counsel)(djo)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
THOMAS E. PEREZ,
Plaintiff,
v.

Case No. 13-CV-1302

VERONICA MUELLER, et al.,
Defendants.
ORDER
United States Secretary of Labor Thomas E. Perez filed the present action alleging
that the defendants violated provisions of the Employee Retirement Income Security
Act of 1974 (ERISA) with respect to actions they undertook regarding an employee stock
ownership plan (ESOP) sponsored by Omni Resources, Inc. The Secretary alleges that
the ESOP imprudently purchased company stock for more than the stock’s fair market
value and without a proper valuation of the stock. The defendants involved in the
motions that are the subject of this order are Veronica Mueller, Roger Mueller, and six
trusts, who will be referred to collectively as the Mueller defendants.
This matter was initially assigned to Magistrate Judge William E. Callahan. It
was reassigned to the Honorable Rudolph T. Randa when the Secretary refused to

consent to the full jurisdiction of a magistrate judge. Judge Randa presided over the
case for the next 32 months. The case was reassigned to Judge Pamela Pepper after
Judge Randa ceased presiding over cases due to what would prove to be a terminal
illness.
Since at least April of 2016 the parties have been asking the court to resolve
discovery disputes regarding whether certain information sought by the Mueller
defendants from the Department of Labor and its employees is privileged. Judge Randa
granted the Mueller defendants’ initial motion to compel. (ECF No. 95.) That led to the
Secretary filing a “motion to clarify” (ECF No. 100), which motion Judge Randa granted
(ECF No. 112). The Mueller defendants’ promptly sought relief from that order. (ECF
No. 113.)
While the “motion to clarify” was pending, the Mueller defendants filed a
motion to compel Department of Labor employee Charles Visconti to answer certain
questions which he did not answer at his deposition on the basis of privileges. (ECF
No. 108.) The Mueller defendants also filed a second motion to compel discovery. (ECF
No. 121.)
On September 26, 2016, Judge Pepper (the case by then having been reassigned to
her) denied the Mueller defendants’ motion for relief from Judge Randa’s July 27, 2016
order. (ECF No. 133.) Judge Pepper further referred the case to this court for resolution
of the pending discovery disputes. (ECF Nos. 108, 121.)

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The Mueller defendants seek information and documents that the Secretary
contends are privileged. The Secretary has provided a privilege log with respect to the
documents sought by the Mueller defendants,. (ECF No. 101-1.) The Mueller defendants
have provided the court with a list of objected-to deposition questions to which it seeks
answers from Visconti. (ECF No. 109 at 3-10.) Some of the deposition questions are
duplicative of the document requests in that Visconti was asked to state what was
redacted from certain documents.
Although not required in every case, an in camera review of documents “is a
highly appropriate and useful means of dealing with claims of governmental privilege.”
Kerr v. United States Dist. Court for Northern Dist., 426 U.S. 394, 406 (1976). The court
finds that the most efficient and expeditious means for resolving the parties’ dispute is
for the court to conduct an in camera review of the allegedly privileged documents.
Therefore, not later than October 21, 2016, the Secretary shall provide to the
court for in camera review copies of all documents identified as privileged in the mostrecent privilege log. Documents may be presented in hard copy or electronic format
(e.g. in PDF format on a CD or DVD). As to any document that the Secretary does not
contend is privileged in its entirety (e.g., a redacted version was provided to the Mueller
defendants) the Secretary should clearly indicate which portion of the document is
allegedly privileged. For example, portions of a document that were redacted should be
indicated by highlighting, underlining, or some other notation. Moreover, to the extent

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the Secretary believes that it might be difficult for the court to understand a document
as it relates to the asserted privilege (for example, the positions of persons included on
emails, the context of the document, etc.), the Secretary may provide the court with
additional details necessary to understand the basis for the asserted privilege.
SO ORDERED.

Dated at Milwaukee, Wisconsin this 11th day of October, 2016.

_________________________
WILLIAM E. DUFFIN
U.S. Magistrate Judge

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