Perez v. Mueller et al

Filing 145

ORDER signed by Judge Pamela Pepper on 12/27/2016 ADOPTING IN ITS ENTIRETY 140 Magistrate Judge Duffin's Decision and Order on the defendants' motions to compel. (cc: all counsel)(pwm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

THOMAS E. PEREZ,

Case No. 13-cv-1302-pp

Plaintiff,
v.
VERONICA MUELLER, et al.,
Defendants.

ORDER ADOPTING MAGISTRATE JUDGE’S DECISION AND ORDER ON
THE MUELLER DEFENDANTS’ MOTIONS TO COMPEL (DKT. NO. 140)

Currently pending before the court are objections filed by defendants
Veronica Mueller, Roger Mueller, The Carey V. Mueller (N/K/A Vollmers) 1996
Trust Dated 11/14/96, The Craig M. Mueller 1996 Trust Dated 11/14/96, 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
(N/K/A Vollmers), The Roger L. and Veronica S. Mueller 1996 Exemption Trust
Dated 11/14/96 F/B/O Craig M. Mueller, The Roger L. and Veronica S.
Mueller 1996 Exemption Trust Dated 11/14/96 F/B/O Christopher L. Mueller
(collectively, the “Mueller Defendants”) to a discovery order issued by
Magistrate Judge William E. Duffin. Dkt. No. 140. For the reasons explained
below, the court overrules the Mueller Defendants’ objections, Dkt. No. 142-1,
and adopts Magistrate Judge Duffin’s decision and order in its entirety.
28 U.S.C. §636(b)(1)(A) and Federal Rule of Civil Procedure 72(a) govern
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the district court’s review of a magistrate judge’s determination of nondispositive matters, such as the discovery issues presently before the court,
and it authorizes a district court to modify or vacate an order that is “clearly
erroneous or contrary to law.” “To be clearly erroneous, a decision must strike
[the court] as more than just maybe or probably wrong; it must . . . strike [the
court] as wrong with the force of a five-week-old, unrefrigerated dead fish . . . .
[I]t must be dead wrong.” Parts & Elec. Motors, Inc. v. Sterling Elec., Inc., 866
F.2d 228, 233 (7th Cir. 1988). “An order is contrary to law when it fails to apply
or misapplies relevant statutes, case law, or rules of procedure.” Henry v.
Centeno, No. 10 C 6364, 2011 WL 3796749, at *1 (N.D. Ill. Aug. 23, 2011)
(internal quotation marks omitted) (citation omitted).
An ongoing discovery dispute has centered on whether certain
information sought by the Mueller Defendants from the Department of Labor is
privileged or otherwise protected from production. The court referred to Judge
Duffin two motions to compel involving (1) forty-eight questions that a
Department of Labor employee, Charles Visconti, was instructed not to answer
at his deposition; and (2) documents that the Department of Labor withheld on
the basis of various privileges. Dkt. Nos. 108, 121. The Mueller Defendants
filed copies of the challenged documents with the court, and Judge Duffin
reviewed in camera all of the questions that Mr. Visconti did not answer and
the documents that the Secretary asserts are not subject to production. Dkt.
No. 140 at 3, 11, 16.
Judge Duffin rejected the plaintiffs’ contention that the Secretary had
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waived any privileges applicable to the documents at issue by failing to assert
the privileges earlier or to produce adequate and complete privilege logs on a
timely basis. Id. at 11-12. After reviewing the documents and deposition
questions, Judge Duffin found that the vast majority of the documents were
protected by one or more of the privileges asserted on the Secretary’s privilege
log, but he determined that a handful of documents were not protected by the
attorney-client privilege and ordered them to be produced. Id. at 14-15.
Regarding the motion to compel Mr. Visconti to answer the questions he did
not answer at his deposition, Judge Duffin concluded that his decision on the
motion to compel the Secretary to produce documents either mooted or
resolved that motion on its merits. Id. at 16.
The Mueller Defendants objected to Judge Duffin’s order, arguing that
the court should modify his order because he (1) did not explain in his order
why he concluded that the vast majority of documents at issue are privileged;
(2) misapplied the common interest doctrine in finding certain documents
exchanged between the Secretary of Labor and the nonparty successor trustee
are covered by privileges through that doctrine; and (3) did not explain in his
order why he found certain documents in the Secretary’s possession to be
protected by the executive privilege. Dkt. No. 142. The Secretary has
responded. Dkt. No. 144.
The court has reviewed the Mueller Defendants’ objections to Judge
Duffin’s order, and concludes that no part of his order is clearly erroneous or
contrary to law. The court detects no clear error in Judge Duffin’s
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determinations that (1) the Secretary did not waive any protections applicable
to the documents the Mueller Defendants’ seek to compel, because the
Secretary did not act willfully or in bad faith by failing to raise certain privileges
earlier in the litigation or by allegedly failing to produce adequate and complete
privilege logs sooner; (2) under the common interest doctrine, the Secretary’s
communications with the successor trustee are covered by the attorney-client
privilege or the work product doctrine; and (3) other than the documents (or
portions of certain documents) that Judge Duffin ordered the Secretary to
produce, the documents submitted by the Secretary for in camera review are
subject to protections and may be withheld from production by the Secretary.
The parties have litigated these issues for several months. The
culmination of these disputes is that Judge Duffin—despite the fact that he
was not required to do so—conducted an in camera review of the documents in
question, as well as the questions posed to Mr. Visconti (some of which were
duplicative of the discovery requests). It is true that he did not list each specific
document which he found privileged. The court agrees with the Secretary that
the Muller Defendants’ argument that Judge Duffin ought to have detailed the
contents of the materials that he decided were privileged seems to
misapprehend the purpose of in camera review. It appears that the objecting
defendants expected Judge Duffin to say, “Document #98 says thus and so.
Thus and so is privileged as work product.” Were Judge Duffin to have written
an order of this sort, his order would have violated any privilege that did exist,
and defeated the purpose of reviewing the documents in camera. It is clear to
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this court that Judge Duffin’s review was thorough and careful, that he
correctly articulated the law governing the various applicable privileges, and
that nothing in his decision was clearly erroneous or contrary to law.
The court OVERRULES the Mueller Defendants’ objections, Dkt. No.
142-1, and ADOPTS Judge Duffin’s decision and order in its entirety. Dkt. No.
140.
Dated in Milwaukee, Wisconsin this 27th day of December, 2016.

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