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

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

RESPONSE by 1st Class Legal (I.S.), Ltd. to MOTION by Defendant Niro Law, Ltd., Counter Claimant Niro Law, Ltd. to compel {{18}}

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Case: 1:16-cv-06793 Document #: 20 Filed: 01/11/17 Page 1 of 6 PageID #:147 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, LLC 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 (I.S.), LTD., a foreign) Case No.: 16 C 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 Cl aim)) PLAINTIFF'S PRELIMINARY RESPONSE TO MOTION TO COMPEL BY NIRO LAW, LTD., REQUEST FOR BRIEFING SCHEDULE AND REQUEST FOR COURT SUPERVISED MEET/CONFER CONFERENCE AT PREVIOUSLY SCHEDULED STATUS CONFERENCE Defendant Niro filed this pending Motion to Compel prematurely and before completion of efforts to resolve the subject discovery disputes. Plaintiff requests that the Court order the parties to continue informal attempts to resolve discovery disputes before this pending motion or any other discovery motion is heard or further briefed. Case: 1:16-cv-06793 Document #: 20 Filed: 01/11/17 Page 2 of 6 PageID #:148 Plaintiff requests that the Court order that the parties document such attempts in a manner which will describe the resolution of any such disputes and, which disputes remain unresolved. Plaintiff requests that the Court schedule a hearing date in early March, 2017 which will allow time for the parties to continue to attempt resolve outstanding discovery disputes, and then prepare motions to resolve all remaining unresolved discovery disputes for hearing on that date. Plaintiff disputes Defendant's "certification of compliance" of Rule 37(a) and Local Rule 37.2. There are significant discovery disputes between the parties which require court intervention1. Mr. Tanner first informed Plaintiff of concerns about discovery responses in his letter of December 12. Plaintiff's counsel responded, in writing, on December 19 requesting additional information as to why Defendants believed the documents requested were relevant and Plaintiff's counsel made themselves available to discuss during that week and then again during the first week of January and also sent another letter (Exhibit A) on the same date to Mr. Tanner outlining Defendant's failures to respond to Plaintiff's discovery. Mr. Tanner did not respond to either of the December 19 letters until January when he requested a telephonic meeting, which was then scheduled and held at Mr. Tanner's request for Friday, January 6 to discuss clarification and resolution of the pending discovery disputes2. The telephone conference lasted 3 hours and based at the end of the call, it was the understanding of both of Plaintiff's counsel that there were significant issues yet to be resolved (as to those specific discovery requests which 1 Attached as Exhibit A is a letter to Mr. Tanner outlining the significant failure of Defendant Niro to respond to Plaintiff's requests for documents. Mr. Tanner has never provided any written response to that letter and, instead, requested a telephone conference. Mr. Tanner has informed Plaintiff's counsel that he refuses to confirm telephone calls in writing. Thus, Plaintiff faces a significant risk that Defendant Niro will claim not to be bound by any of the verbal agreements reached in the telephone conference described herein and any other negotiations. 2 Most of the time spent on the call addressed the numerous failures of Defendant Niro Law to respond properly to the Plaintiff's requests for documents, and the failure of Defendant to produce the responsive documents after having over two months to do so. Mr. Tanner, Niro's attorney, claimed that he was continuing to review thousands of pages of documents and that most of them would be produced without the necessity of the proposed protective order he referenced in his motion. To date, no such documents have been produced even though Mr. Tanner has now had more than 2 ½ months to review and produce documents since it was served with the document requests in October. 2 Case: 1:16-cv-06793 Document #: 20 Filed: 01/11/17 Page 3 of 6 PageID #:149 are the subject of the pending motion) and discussed and that counsel would respond further this week after counsel was given an opportunity to further discuss with their respective clients. In that call of January 6, Defendant Niro's counsel was also informed that Plaintiff's counsel had just learned that the responsible officer of Plaintiff (Bob Gordon) was seriously ill and that details were not yet available.3 Defendant Niro's attorney was informed that as to the outstanding discovery dispute pertaining to Defendant's discovery, that attempts would be made to consult with Mr. Gordon this week to try to resolve these issues. Mr. Tanner led both of Plaintiff's legal counsel to believe that the informal resolution process was not complete, that we would each consult with our respective clients to see if there were other avenues of resolution of these disputes, and that we would try to contact each other during the week of January 9 after such consultation. Entirely contrary to the understanding and expectations of Plaintiff's counsel to continue attempts to resolve the issues which are the subject of the pending motion and the significantly more voluminous issues in dispute pertaining to Defendant's response to Plaintiff's discovery requests, Mr. Tanner prepared and filed this pending motion on Monday January 9 without ever informing either of Plaintiff's counsel that he considered that informal resolution process to be complete. With regard to the substantive issues presented by the subject motion: The subject motion misstates the scope of coverage of the after-event insurance and a response requires Mr. Gordon's involvement. Plaintiff would like the reasonable opportunity to brief this issue to show that the Mr. Tanner misrepresents its scope and to show that the information requested is not relevant to the claims or defenses in this action. It should be noted that Plaintiff produced the full copies of the insurance and proof of payment. The motion, however, only attached portions of the policy language. The subject motion does not in any manner address the legal objection to production based upon the prohibitions of the "Data Protection Act of 1998 (U.K.)" specifically referenced in the written responses to the subject discovery. Plaintiff is licensed and regulated under the laws of the United Kingdom. Plaintiff is subject to those laws and the written agreements which are the subject of this 3 Plaintiff's counsel has since been informed that Mr. Gordon has been hospitalized and will not be available for the next few days, at the earliest. 3 Case: 1:16-cv-06793 Document #: 20 Filed: 01/11/17 Page 4 of 6 PageID #:150 action are, by its terms, to be resolved under the laws of the United Kingdom. Plaintiff requests the opportunity to brief this issue and explain why the information requested come within the parameters of that statute and the consequences of improperly disclosing this information. Plaintiff also requests the reasonable opportunity to brief its position as to why this information is not relevant to any of the claims or defenses set forth in this action. In evaluating the proper procedure to follow at this time, Plaintiff wishes to call the Court's attention to the larger background of discovery issues, and urge a more comprehensive approach. Defendant's Discovery and Plaintiff's response: In October, 2016, Defendant Niro served a set of 5 special interrogatories, a set of 47 Requests for Admission, and 18 requests for documents. In response, Plaintiff timely served its written response in November and timely produced over 5100 pages of responsive documents. The only issues in dispute, based upon the subject motion, are three requests for documents (Requests 9, 10 and 11). Although the motion papers quibble about aspects of other responses to discovery requests, Defendant Niro never raised those other discovery requests previously, nor did it make any attempts to resolve those issues. Mr. Tanner's reference to these extraneous matters in this motion, therefore, is improper4. Plaintiff's Discovery and Defendant's response: In October, 2016, Plaintiff served two sets of requests for documents. Although the production was scheduled for late November, Defendant Niro delayed production of any documents until late December. Even then, Defendant only produced about 750 pages of responsive documents, and has admittedly delayed producing over 6000 pages of documents to date5. Although Defendant Niro claims it requires a protective order to produce some (but not all) of 4 In the motion, Defendant references other "concerns" about other requests for discovery and objections on the grounds of "vagueness". However, those objections and the "other" requests for discovery are not the subject of the motion and, more importantly, Mr. Tanner never raised any of those issues in either his letter of December 12 or the telephone conference of January 6 and, therefore, failed to make any attempt to informally resolve them (to the extent he ever had them) prior to filing this motion. 5 There is a 6000 number "gap" in the 700 pages of bates numbered documents produced by Mr. Tanner in late December. Mr. Tanner represented that he will be requesting a protective order over some, but not all, of the remaining documents. Defendant never raised any objections to the production of those documents in its written response and raised those issues only after the written response was served. 4 Case: 1:16-cv-06793 Document #: 20 Filed: 01/11/17 Page 5 of 6 PageID #:151 the remaining documents, Defendant Niro never objected to the production of document on grounds which supported any protective order. Defendant Niro never objected on the grounds privacy or trade secret or any other ground which would support the issuance of a protective order. In light of the unresolved discovery issues on both sides, it is respectfully submitted that the Court order that parties to continue attempts to informally resolve these disputes, document those efforts by clearly stating what disputes have been resolved and in what manner, and stating what disputes remain unresolved and will be subject to a motion to compel, and then filing the motion in sufficient time for it to be scheduled for hearing on date designated by the court in early March, 2017.6 It is requested that opposition briefing be filed no less than 2 weeks prior to the hearing and that any reply be filed no less than 1 week prior to the hearing. It is requested that the Court order any such motions be filed no less than 4 weeks prior to the designated date of the hearing, in order to give the parties a couple of more weeks time to resolve outstanding disputes prior to preparing and filing any such motions. Dated: January 11, 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 By: /s/Steve M. Varhola Steve M. Varhola LYMAN LAW FIRM, LLC 227 West Monroe Street, Suite 2650 Chicago, Illinois 60606 Attorneys for Plaintiff and Counter-Defendant 1st Class Legal (I.S.), Ltd. 6 At the last status conference of October 18, Plaintiff informed the Court and counsel that it was going to amend the complaint but wanted to get the documents to consider prior to such amendment. It was assumed that the Defendant would produce all of its documents by now. Instead, Defendant has delayed production now for almost 2 months and consequently, Plaintiff is still not prepared to file its motion to amend the complaint. 5 Case: 1:16-cv-06793 Document #: 20 Filed: 01/11/17 Page 6 of 6 PageID #:152 CERTIFICATE OF SERVICE The undersigned, an attorney, certifies that on January 11, 2017, he caused the foregoing Preliminary Response to Motion to Compel by Niro Law, Ltd., Request for Briefing Schedule and request for Court Supervised Meet/Confer Conference at Previously Scheduled Status Conference to be served upon all counsel of record via the court's electronic docketing system. Dated: January 11, 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. 6