1ST Class Legal (I.S.), Ltd. v. Niro, et al.

Northern District of Illinois, ilnd-1:2016-cv-06793

MOTION by Plaintiff 1st Class Legal (I.S.), Ltd., Counter Defendant 1st Class Legal (I.S.), Ltd. to compel Further Responses and Production of Documents by Defendant Niro Law, Ltd.

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Case: 1:16-cv-06793 Document #: 40 Filed: 03/02/17 Page 1 of 16 PageID #:300 MARC S. MAZER WEILL & MAZER, A Professional Corporation 90 New Montgomery Street, Suite 1400 San Francisco, CA 94105 Telephone: (415) 421-0730 STEVE VARHOLA LYMAN LAW FIRM 227 West Monroe Street, Suite 2650 Chicago, Illinois 60606 Attorneys for Plaintiff and Counter Defendant 1st CLASS LEGAL (I.S.), LTD. UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION 1st CLASS LEGAL (IS), LIMITED, a foreign) Case No.: 16-cv-6793 corporation,)) Plaintiffs,)) Honorable Robert. M. Dow, Jr. v.)) RAYMOND NIRO, individually and doing) business as NIRO, HALLER & NIRO, an) Illinois Law Partnership, NIRO LAW, LTD.,) an Illinois Corporation, formerly known as) NIRO, HALLER & NIRO, LTD.,)) Defendants.)) and related Counter Claim)) PLAINTIFF-COUNTERDEFENDANT'S MOTION TO COMPEL FURTHER RESPONSES AND PRODUCTION OF DOCUMENTS BY DEFENDANT NIRO LAW, LTD. Plaintiff and Counterdefendant 1st Class Legal (IS), Limited (1CL) brings this motion seeking an order to compel Defendant Niro Law, Ltd. (Niro) to produce documents and/or provide a further written response as to various requests for documents made in 1CL's First and Second Request for Documents directed to Niro as to 1CL's First Set of Requests for Documents and Second Set of Requests for Documents. A copy of 1CL's First Set of Requests, Niro's Case: 1:16-cv-06793 Document #: 40 Filed: 03/02/17 Page 2 of 16 PageID #:301 response to the First Set of Requests, 1CL's Second Set of Requests, Niro's response to the Second Set of Requests, and Niro's Amended Response to Requests 71, 72 and 77 are attached as Exhibit 1, 2, 3, 4, and 5, respectively. Certification of Compliance with Rule 37(a)(1) and Local Rule 37.2. Undersigned counsel certifies he has in good faith conferred with Niro's legal counsel in an effort to obtain further responses to the subject requests for documents and the documents sought without court action before filing this motion, including through correspondence (all incorporated into Exhibit 6 attached hereto) and telephonic consultation. INTRODUCTION 1CL commenced this action against Niro for breach of a written loan agreement, consisting of a Master Loan Agreement and three related and integrated Case Specific Loan Agreements, and seeks an accounting of the utilization of the borrowed funds and implementation of provisions of said agreements, as well as damages for breach of the same. 1CL is a regulated company domiciled in the United Kingdom and subject to the laws and regulations under English Law. Niro has admitted that it is the Borrower under a Master Loan Agreement and three related Case Specific Loan Agreements ("CSLAs"), hereinafter collectively "Loan Agreements", a copy of each is attached as Exhibits 7 (A-D) respectively. Both parties agree that this lawsuit arises from the provisions of the Loan Agreements. 1CL contends that the Borrower has failed to comply with various material provisions of the Loan Agreements including, but not limited to, failing to satisfy the obligations listed under the section entitled "Conditions Precedents", failing to provide 1CL with all Relevant Facts as required under the Loan Agreements, and failing to utilize the borrowed funds as required under the Loan Agreements. Niro has filed a Counterclaim alleging breach of the Loan Agreements claiming 2 Case: 1:16-cv-06793 Document #: 40 Filed: 03/02/17 Page 3 of 16 PageID #:302 that 1CL agreed to fund loans totaling $4 Million, loaned only $2.4 Million, and failed to fund the entire agreed upon amount of the loan and seeks damages in an amount of the "shortfall" of $1.6 Million.1 In its Counterclaim, Niro contends that it has satisfied all its obligations under the Loan Agreement. 1CL is in the business of, among other things, loaning money to lawyers and others for the purpose of funding litigation in which said lawyers represent the plaintiff in said litigation. It loans funds to the attorneys under specified terms of a contingency fee agreement. The attorneys represent their clients in claims and the loan is repaid by the attorney paying a portion of its agreed upon contingency fee. The risk to 1CL in this type of arrangement is significant and, therefore, funding of the loans is conditioned upon it timely receiving all relevant information about the litigation from the attorneys sufficient for it to justify the risk of continuing to advance those funds for the litigation (which is referenced as "Relevant Facts" and "Proceedings", respectively, in the Loan Agreements). The risk is even greater since repayment was to be made entirely from contingency fees received by Niro with respect to the various litigation Proceedings related to the various CSLAs. Here, Niro represented three different client patent holders (Cascades, Oplus, and 21SRL) who owned patents and were making claims against numerous "infringers" of those patents in separate litigation matters around the country. In addition, the Loan Agreements provided for "conditions precedent" for loaning the funds which included such things as purchasing stock in the client's company so that 1CL could become, essentially, a client-related party coming within the attorney-client privilege and 1 1CL has filed a Motion for Summary Judgment on the single ground that the measure of damages for a lender's breach of loan agreement and failure to fund a loan cannot be the amount of the loan but, rather must be other consequential damages which Niro neither contends it incurred nor alleges in its Counterclaim. That Motion is pending and will be fully briefed by the time of the hearing on this Motion. 3 Case: 1:16-cv-06793 Document #: 40 Filed: 03/02/17 Page 4 of 16 PageID #:303 obtaining written acknowledgment of the loan by Niro's clients. As a condition for each advance of loan funds through "drawdown requests", Niro represented that it confirms "that each and every condition of the Agreement (Loan Agreement) is satisfied on the date of the drawdown request. Under the Loan Agreements, Niro was obligated to utilize the borrowed funds for very specific purposes in paying costs incurred by both Niro and its clients with respect to the related litigation proceedings. 1CL alleges in the Complaint that Niro failed to provide relevant information as called for by the Loan Agreements, and seeks an accounting as to the funds received by Niro and their use. Niro has countersued, seeking that 1CL pay the "shortfall" of the loan under the agreements. In response to 1CL's First and Second Requests for Production, as set forth below, Niro has provided inadequate responses and refused to provide documents in the following respects: 1. Niro's responses are deficient in their reliance on "General Objections," its refusal to clearly state whether it is complying with requests, whether it is withholding any responsive documents, and in other material respects. 2. Niro's responses fail to claim attorney-work product or attorney-client privilege or provide a privilege log, or to assert any proper basis of a claim of confidentiality, and any such objections are now waived. 3. Niro's refusal to produce any documents as to various requests based upon "vagueness" objections or "relevancy", both of which has no merit whatsoever. As shown below, the documents requested are plainly discoverable in light of the allegations of the Complaint, Answer, and Counterclaim, and the provisions of the Loan Agreements. The requests are clear and concise and utilize the same phrases of "pertaining to" as utilized by Niro in its requests for documents. Moreover, the requests reference specific provisions of the Loan Agreement so Niro is precluded from claiming that it does not understand the requests. Moreover, 1CL's counsel was willing to discuss rephrasing to clarify, to appease Niro's unjustified concerns and Niro still refuses to produce any documentation in response to many of these requests. 4 Case: 1:16-cv-06793 Document #: 40 Filed: 03/02/17 Page 5 of 16 PageID #:304 ARGUMENT I. Insufficiency of Responses. a. General Objections that are not incorporated into the individual responses are Improper. Niro's responses rely extensively on general objections. This Court repeatedly found these improper: It is well established that such generalized, non-specific objections are improper and do not act as a substitute for an individualized response to each of Plaintiffs' requests. See, e.g., In re Aircrash Disaster Near Roselawn, Ind. Oct. 31, 1994, 172 F.R.D. 295, 306– 07 (N.D.Ill.1997) (denying similar objections as "pat, generic, non- specific" responses that "are inconsistent with both the letter and the spirit of the Federal Rules of Civil Procedure."); United Auto. Ins. v. Veluchamy, No. 09 C 5487, 2010 WL 749980, at *5 (N.D.Ill. March 4, 2010) (finding that such "boilerplate responses" are waived as improper). Rawat v. Navistar Int'l Corp., No. 08 C 4305, 2011 WL 3876957, at *9 (N.D. Ill. Sept. 1, 2011), aff'd, No. 08-CV-04305, 2011 WL 6097772 (N.D. Ill. Dec. 5, 2011). The aircraft defendants have alleged pat, generic, non-specific objections to each document request, repeating the familiar boilerplate phrase that each and every request is "vague, overly broad, unduly burdensome, and seeks information that is not relevant and not reasonably calculated to lead to the discovery of relevant evidence. … An objection to a document request must clearly specify the objection and how that objection relates to the documents being demanded. Roesberg v. Johns–Manville Corp., 85 F.R.D. 292, 297 (E.D.Pa.1980). The burden is on the party resisting discovery to clarify and explain precisely why its objections are proper given the broad and liberal construction of the federal discovery rules. Obiajulu, 166 F.R.D. at 297. The aircraft defendants have simply not done this, and as such their objections are denied. In re Aircrash Disaster Near Roselawn, Ind. Oct. 31, 1994, 172 F.R.D. 295, 306–07 (N.D. Ill. 1997). As to Interrogatory # 3, the objection is waived because boilerplate responses are improper. If the party from whom the documents are requested objects to their production, that party has the burden to show why a discovery request is improper. See Rule 34(b); Gile v. 5 Case: 1:16-cv-06793 Document #: 40 Filed: 03/02/17 Page 6 of 16 PageID #:305 United Airlines, Inc., 95 F.3d 492, 495 (7th Cir.1996); In re Sulfuric Acid Antitrust Litigation, 231 F.R.D. 331, 337 (N.D.Ill.2005). That burden cannot be met by a reflexive invocation of "the same baseless, often abused litany" that the requested discovery is "vague, ambiguous, overly broad, unduly burdensome," or that it is "neither relevant nor reasonably calculated to lead to the discovery of admissible evidence." Swift v. First USA Bank, 1999 WL 1212561 (N.D.Ill.1999). Despite courts' repeated admonitions that these sorts of "boilerplate" objections are ineffectual, their use continues unabated, with the consequent institutional burdens, Szabo Food Service, Inc. v. Canteen Corp., 823 F.2d 1073, 1077 (7th Cir.1987); Channell v. Citicorp Nat. Services, Inc., 89 F.3d 379, 386 (7th Cir.1996), and the needless imposition of costs on the opposing party. They are " 'tantamount to not making any objection at all.' " E.E.O.C. v. Safeway Store, Inc., 2002 WL 31947153, *2-3 (N.D.Cal.2002). See also In re Aircrash Disaster Near Roselawn, Ind. Oct. 31, 1994, 172 F.R.D. 295 (N.D.Ill.1997) (rejecting generic, non-specific, boilerplate objections); Klein v. AIG Trading Group Inc., 228 F.R.D. 418, 424 (D.Conn.2005) (overruling objections that "the familiar litany that the [requests] are burdensome, oppressive or overly broad"); American Rock Salt Co., LLC v. Norfolk Southern Corp., 228 F.R.D. 426, 432 (W.D.N.Y.2005) ("generalized objections that discovery requests are vague, overly broad, or unduly burdensome are not acceptable"); Athridge v. Aetna Casualty and Surety Co., 184 F.R.D. 181, 190-91 (D.D.C.1998) (rejecting general boilerplate objections). Roesberg v. Johns-Mansville Corp., 85 F.R.D. 292, 297 (E.D.Pa.1980); Compagnie Francaise d'Assurance Pour le Commerce Exterieur v. Phillips Petroleum Co., 105 F.R.D. 16, 42 (S.D.N.Y.1984); Klein v. AIG Trading Group Inc., 228 F.R.D. 418, 422 (D.Conn.2005); Burkybile v. Mitsubishi Motors Corp., 2006 WL 2325506, *6-7 (N.D.Ill.2006). United Auto. Ins. v. Veluchamy, No. 09 C 5487, 2010 WL 749980, at *5 (N.D. Ill. Mar. 4, 2010) Niro's General Objections run afoul of the above authority. Its boilerplate General Objections should be entirely disregarded, especially since in each of the individual responses there is no indication as to which of the General Objections are being relied upon for refusing to produce documents. b. Privilege and Privacy have not been Properly Asserted This Court has been equally clear on what is required for an assertion of privilege or privacy: 6 Case: 1:16-cv-06793 Document #: 40 Filed: 03/02/17 Page 7 of 16 PageID #:306 Furthermore. a party invoking the claim of privilege has the burden of establishing all of its elements. U.S. v. White, 950 F.2d 426, 430 (7th Cir.1991). The discovery opponent must state the claim expressly and describe the nature of the document so withheld in a manner that will enable the other parties to assess the claim of privilege. AM International, Inc. v. Eastman Kodak Co., 100 F.R.D. 255–256 (N.D.Ill.1981); von Bulow by Auersperg v. von Bulow, 811 F.2d 136, 144 (2nd Cir.1987). The aircraft defendants have not done so and this is fatal to this objection and claim. Fed.R.Civ.P. 26(b)(5). The mere naked claim of privilege, as occurs in this case, does not justify a refusal to identify or produce the information and documents requested. Roesberg, 85 F.R.D. at 302. The aircraft defendants have proceeded improperly in their objections based on privilege, since they have not identified the documents for which the claim is made nor supplied the information required under Fed.R.Civ.P. 26(b)(5). Aircrash Disaster, supra, 172 F.R.D. at 307. Finally, as to Interrogatory # 1 and # 2, although there appears to be a generalized claim of attorney/client and/or work-product privilege, the privilege log required by Rule 26, Federal Rules of Civil Procedure, has not been produced. The defendant has had more than adequate time to prepare and serve a log but has simply chosen not to provide even the semblance of one. The claim of privilege is thus waived. See Burlington Northern & Santa Fe Railway Co. v. United States District Court for the District of Montana, 408 F.3d 1142 (7th Cir.2005); Coalition for a Sustainable Delta v. Koch, 2009 WL 3378974 (E.D.Cal.2009); Truckstop Net, L.L.C. v. Sprint Communications Co., L.P., 2008 WL 2357008 (D.Idaho 2008); Third Party Verification, Inc. v. Signaturelink, Inc., 2007 WL 1288361 (M.D.Fla.2007); Rmed international, Inc. v. Sloan's Supermarkets, Inc., 2003 WL 41996 (S.D.N.Y.2003). United Auto. Ins. v. Veluchamy, No. 09 C 5487, 2010 WL 749980, at *5 (N.D. Ill. Mar. 4, 2010). Niro's Responses to the Requests for Production plainly fail to meet the above standards. Nowhere in the responses does Niro assert an objection based upon either "attorney client privilege" or "attorney work product privilege". It did not "describe the nature of the document so withheld in a manner that will enable the other parties to assess the claim of privilege" and its failure to provide even the semblance of a privilege log requires rejection of any claim of 7 Case: 1:16-cv-06793 Document #: 40 Filed: 03/02/17 Page 8 of 16 PageID #:307 privilege. Moreover, Niro does not in any manner assert a confidentiality privilege recognized by law. As in Veluchamy, supra, any claim of privilege must be found to have been waived.2 II. Niro's Objections are Improper. a. Requests for documents relating to "borrower's costs" and "borrower's client costs and disbursements" incurred and paid pursuant to the CSLAs. (Requests 17- 25) Each of the CSLAs reference funding for "borrower's costs" and "borrower's client costs and disbursements." The Loan Agreement specifically requires the Borrower to utilize the borrowed funds for these limited purposes only. The requests for documents seek documents which pertain to those items. Niro claims that the defined phrase "REFERRING OR RELATING TO" renders the requests vague, and makes it impossible for it to "search, identify and produce any responsive documents" (emphasis added). Its claim is disingenuous. 1CL defined the phrase to mean "pertaining to," and Niro uses the phrase "pertain to" in all of its requests for documents directed to 1CL. Furthermore, in its Amended Response to Requests 71 and 72, Niro agrees that it will produce "billing records and documents identifying client costs"; Niro is quite capable of understanding these terms and searching for documents when it chooses to do so. Moreover, in meet/confer discussions with Niro's attorney, it was pointed out that the language for these requests is directly from theCSLAs. Nevertheless, Niro refused to produce any responsive documents. This Court should curtail the gamesmanship and direct production of responsive 2 For clarification: Plaintiff does not assert that any privilege has been waived as to confidential communications between Niro and its attorneys of record which are claimed to be privileged in this action, or attorney work product of Niro's counsel, since those documents are specifically excluded pursuant to an agreement between counsel that all such documents are deemed privileged and do not need to be listed on any privilege log. This agreement was pertaining to any document requests from either Plaintiff or Niro. 8 Case: 1:16-cv-06793 Document #: 40 Filed: 03/02/17 Page 9 of 16 PageID #:308 documents. To the extent that Niro has any invoices, receipts, cancelled checks, credit card invoices, or any other documentary indicia of utilization of the borrowed funds, Niro should produce these documents. As noted above, the reference to the General Objections is inadequate to assert any valid objection to these requests. b. Requests for documents relating to Niro's claims of having performed under the agreements (Requests 42-44, 70) These requests seek documents pertaining to Borrower's obligations under the subject contracts. In its Counterclaim, Niro claims to have "performed all of its obligations under the Master Loan Agreement and the CSLAs." Under the Master Loan Agreement, the Borrower was required to satisfy obligations set forth in Paragraphs 17-20 of the Master Loan Agreement, under the heading "Conditions Precedent." Further, in all loan drawdown requests, attorneys for Niro unequivocally confirmed "that each and every condition of the Agreement is satisfied on the date of the Drawdown Request" (See, attached Exhibit 8, which is a representative copy of a "Drawdown Request" under the Loan Agreement). In light of Niro's allegation of performance of all its obligations and its representations in all of the "drawdown requests" under the Loan Agreement, it is plainly proper discovery to inquire as to its satisfaction of the express obligations it undertook in paragraphs 17-20. During the meet/confer process this was pointed out to counsel for Niro. Niro refused to produce all responsive documents. There is nothing unclear about the request. As noted above, Niro's reliance on general objections is unavailing. Niro should be ordered to produce all responsive documents and amend its response accordingly. c. Requests for documents relating to underlying Proceedings (Requests 45-47) The Master Loan Agreement requires the Borrower to provide to Plaintiff all Relevant Facts pertaining to the Proceedings related to the CSLAs. Requests 45-47 seek all documents 9 Case: 1:16-cv-06793 Document #: 40 Filed: 03/02/17 Page 10 of 16 PageID #:309 pertaining to those Proceedings (a term defined in the Master Loan Agreement). The Proceedings means all patent infringement claims (whether resulting in litigation or not) pertaining to the CSLAs for Cascades, 21SRL or OPLUS. Niro claims that the requests are so vague that it cannot ascertain what documents to produce. Niro refuses to produce any of its files regarding the Proceedings, even though clearly these documents would be responsive to these requests. Niro did not object on the grounds of either attorney client privilege or attorney work product privilege and, therefore, those objections are waived. The claim of vagueness is without merit and Niro has thus far refused to explain why the requests are so vague that they cannot produce ANY responsive documents. Niro should be compelled to produce all responsive documents to these requests. d. Requests for documents relating to utilization of loaned funds (Requests 48-50, 71, 72, and 77) These requests seek documents pertaining to the utilization of the borrowed funds under each of the CSLAs related to the Master Loan Agreement. The Master Loan Agreement and CSLAs provide that funds are being loaned for very specific purposes (i.e. Borrower's Costs, or Borrower's client costs and disbursements). 1CL seeks, in its lawsuit, an accounting of those funds and the related Proceedings. The requests ask, for example, that Niro produce documents regarding "payment of costs incurred in the proceedings pursuant to Paragraph 10.1 of the Master Loan Agreement" which states that "the Loan shall be used only for the following purposes: Payment of costs incurred in the Proceedings; "Payment of properly incurred costs incurred by the Borrower's client" or "Payment of the Funded Premium and/or applicable guarantees as required by the Lender". Niro's claim of vagueness is without merit; the requests seek documents specifically described in the agreement itself. Niro also refuses to produce, claiming the information is not relevant to the claims and defenses of the lawsuit. This objection 10 Case: 1:16-cv-06793 Document #: 40 Filed: 03/02/17 Page 11 of 16 PageID #:310 is without merit; clearly the documents sought are relevant to 1CL's claim for accounting and for purposes of determining whether the Borrower breached the provisions which specify how the funds are to be utilized. As noted above, Niro's generic boilerplate "General Objections" are unavailing. Niro should be compelled to produce all responsive documents. As to Requests 71 and 72, Niro submitted Amended Responses stating, "Notwithstanding its objections, Niro Law is producing billing records and documents identifying client costs." But these responses do not fully correspond to the call of the requests and do not indicate that Niro is producing all responsive documents or is withholding some. Niro should be ordered to clearly state if all responsive documents are being produced, and if not, Niro must be required to identify what is being withheld and the basis for so doing. As noted above, the general objections are invalid and all privileges have been waived, so there appears to be no legitimate basis for the withholding of any documents. e. Requests for documents relating to Proceeds received for each Proceeding under the subject agreements. (Requests 51-53) These requests seek information which will allow for an accounting pertaining to the Claim Proceeds (a term defined under the subject agreements) received from the Proceedings under the Loan Agreements. Plaintiff is seeking an accounting to determine where all of the funds went and the extent of its entitlement to payment under the Loan Agreements. Clearly the documents sought are relevant to 1CL's claim for accounting and for purposes of determining whether the Borrower breached the provisions which specify how the funds are to be utilized. For the reasons noted above, the "General Objections" are unavailing. Niro should be compelled to produce all responsive documents. 11 Case: 1:16-cv-06793 Document #: 40 Filed: 03/02/17 Page 12 of 16 PageID #:311 f. Requests for documents relating to mitigation of damages (Requests 73, 74, 82) These requests seek documents directly related to the affirmative defense of mitigation of damages in response to Niro's Counterclaim. Niro claims that 1CL breached the loan agreement by failing to fund a portion of the agreed upon loan. If so, then Niro has an obligation to mitigate by seeking funds elsewhere. Niro claims that the breach occurred as of March, 2013 and continues. The requests seek documents related to Niro's ability to mitigate and efforts, if any, to mitigate damages by requesting applications for loans, financial statements, and specific applications to "seek litigation funding" with lenders other than Plaintiff. Niro objects, claiming the requests seek information irrelevant to the claims or defenses of the action. When counsel for Niro was specifically informed that these requests went to mitigation issues, counsel for Niro responded by stating that mitigation is not relevant. However, "lack of mitigation" was specifically alleged as an affirmative defense in response to the Counterclaim. The scope of relevancy is determined by the pleadings, not by Niro's ipse dixit. Niro should be compelled to produce all responsive documents. It should be noted that Niro does not raise any privacy objections and, therefore, any such objections have been waived. g. Requests for documents relating to settlement, judgment, or payments related to underlying claims related to the CSLAs (Requests 26-31, 83) Each of the CSLAs pertains to claims being asserted by a client of the Borrower for patent infringement. The lawsuit seeks an accounting to determine what happened to these claims and whether they were resolved and, if so, how they were resolved and the basis for such resolution. Niro's response improperly limits the documents being produced to settlements only, disregarding the call of the requests for documents concerning any resolution of the action, regardless of whether they were settled or resolved by judgment. Further, if there was a resolution, 1CL is entitled under the Master Loan Agreement to all "Relevant Information" (a 12 Case: 1:16-cv-06793 Document #: 40 Filed: 03/02/17 Page 13 of 16 PageID #:312 defined term) pertaining to the basis for such resolution; this was necessary because the After Event Insurance purchased under the Loan Agreements requires such information in order to determine whether there is a basis for any claims under the insurance. The Complaint alleges the necessity of the information, and clearly the requests seek relevant material. Nevertheless, Niro refuses to produce all responsive documents and there is no basis for narrowing the requests. Niro should be compelled to produce all responsive documents. Niro has indicated a concern that some settlement agreements may be "confidential." If so, Niro should identify them and show how they are confidential. Most confidentiality provisions in settlement agreements provide that they are not to be disclosed "unless compelled by law or subpoena" to be disclosed. If so, a disclosure can be required in the course and scope of litigation discovery. During meet/confer process, counsel for Niro was clearly informed that the related litigation referred to the Proceedings under the various CSLAs. Niro obviously has an understanding of the requests since its response provides that it will produce "any judgments and non-privileged documents sufficient to permit the receiving peart to ascertain settlement payments received on claims governed by the specific CSLAs. Niro should be compelled to produce all responsive documents. h. Niro's responses are ambiguous as to whether all responsive documents are being produced and should be modified to state that all responsive documents are being produced (Requests: 1, 2, 3, 4, 8, 9, 10, 12, 13, 14, 15, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 54, 55, 56, 57, 58, 59, 61, 62, 63, 75, 76, 84, 85 and 86) The responses to these requests merely state "Subject to its General Objections, Niro Law will undertake to identify and produce any responsive documents that are located in places known to or reasonably believed by Niro Law to contain such documents." Niro's counsel was asked whether all responsive documents have been produced and no clear response was received. 13 Case: 1:16-cv-06793 Document #: 40 Filed: 03/02/17 Page 14 of 16 PageID #:313 Further, it is not clear what objections are being referred to in the response, if any. Some of the responses state it will produce "non-privileged" documents. However, no objection is raised on the grounds of any privilege and therefore, such objections are waived. Further, stating "subject to general objections" does not properly state any objection and does not provide information as to what objections are being relied upon by Niro. The muddled responses by Niro mean that Plaintiff cannot determine whether responsive documents have been withheld from production. Plaintiff is entitled to a straightforward answer as to whether all responsive documents have been provided, and an identification of anything withheld. A few of the requests in this general category deserve further discussion. Request 12 requests all communications between Niro and Ron Hofer, a material witness identified by Niro in its Initial Disclosures as going to testify regarding "subjects of contractual relations between 1st Class Legal (I.S.) Ltd. and Niro Law, Ltd." The request is clearly appropriate to discover facts related to Hofer's anticipated testimony, possibly leading to impeachment and other relevant evidence. Niro seems to be claiming that some of its communications with Hofer may have derived from representation on another matter, but Niro has not made a claim of attorney-client privilege and has not provided a privilege log. The authority cited above establishes that Niro's failure to make a clear claim of privilege or provide a privilege log is fatal to any claim of privilege. Niro should be compelled to produce all responsive documents. If nothing is being withheld, that should be clearly stated. Request 13 requests all communication between Niro and Richard Gilbert, a person named as a material witness by Plaintiff in its initial disclosures as to statements made by Niro regarding the subject agreements. Plainly, statements made by Niro regarding the agreements in issue are discoverable. As in Request 12, no clear claim of privilege has been made, and no 14 Case: 1:16-cv-06793 Document #: 40 Filed: 03/02/17 Page 15 of 16 PageID #:314 privilege log supplied; any privilege has been waived. All responsive documents should be produced. If nothing is being withheld, that should be clearly stated. Many of these requests seek documents "previously provided to 1CL". The responses state that only non-privileged documents will be produced. But plainly, documents previously provided to Plaintiff cannot possibly be privileged. Similarly, many of these requests seek documents which the Borrower was required to provide to the Lender pursuant to the Master Loan Agreement and, therefore, cannot possibly be privileged, even if a proper assertion of privilege had been made (which it has not). CONCLUSION For all the foregoing reasons, 1CL respectfully requests that the Court grant its motion to compel further responses and production of documents as sought herein, and that Niro or its counsel (or both) be required to pay "the movant's reasonable expenses incurred in making the motion, including attorney's fees." Federal Rules of Civil Procedure, Rule 37(a)(5)(A). Dated: February 24, 2017 Respectfully submitted, 1ST CLASS LEGAL (I.S.), LTD. By: /s/Marc S. Mazer Marc S. Mazer WEILL & MAZER, A Professional Corporation 90 New Montgomery Street Suite 1400 San Francisco, CA 94105 (415) 421-0730 Attorneys for Plaintiff and Counter-Defendant 1st Class Legal (I.S.), Ltd. 15 Case: 1:16-cv-06793 Document #: 40 Filed: 03/02/17 Page 16 of 16 PageID #:315 CERTIFICATE OF SERVICE The undersigned, an attorney, certifies that on March 2, 2017, he caused the foregoing Plaintiff and Counter-Defendant's 1st CLASS LEGAL, LTD. Motion to Compel Further Responses and Production of Documents by Defendant Niro Law, Ltd. to be served upon all counsel of record via the court's electronic docketing system. Dated: March 2, 2017 1ST CLASS LEGAL (I.S.), LTD. By: /s/Steve M. Varhola Steve M. Varhola LYMAN LAW FIRM, LLC 227 West Monroe Street, Suite 2650 Chicago, Illinois 60606 (312) 762-9517 Attorneys for Plaintiff and Counter-Defendant 1st Class Legal (I.S.), Ltd. 16