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United States District Court, Northern District of Illinois

January 17, 2003


The opinion of the court was delivered by: Zagel, United States District Judge


In the Bankruptcy Court, the trustee is pursuing a claim that officers of the debtor and their enterprises owe the debtor something for misappropriating corporate opportunity and perhaps for other acts as well. This, along with many other issues, is to be resolved in the Bankruptcy Court. What is before me is a claim by those targets of the trustee that, if they are liable to the trustee, then they are owed a duty of indemnification by Seyfarth Shaw, a law firm, because their actions were the consequence of that firm's alleged malpractice. A jury has been demanded on this malpractice claim which has been met with a denial, six affirmative defenses and counterclaims for fraud, civil conspiracy and contribution. I removed the reference solely because the Bankruptcy Court cannot conduct jury trials.

Seyfarth Shaw seeks to consolidate depositions to which the plaintiffs object. Logically, there is not much reason to consolidate depositions since Seyfarth Shaw will not have to pay a dime to anyone until their former clients are on the hook for something-the claim is for indemnification. But the law firm's argument is that without consolidated discovery things could go wrong (and, I suppose, very busy people will have to prepare and sit for depositions more than once). By going wrong, Seyfarth Shaw means that there are delicate questions of privilege and relevance that will impede discovery. I am not much concerned over privilege claims. This lawsuit is an attack by clients against lawyers (and there is another malpractice claim between these two parties pending in state court), and it is difficult to see what privileges remain with the plaintiffs here. There may be privilege issues that arise with respect to other firms who represented plaintiffs here, but these privileges are, in my judgment, likely to be overcome in the context of this case. There is a chance, about which there is some reason to worry, for the discovery to be unduly complicated by a witness who refuses to answer a question because, in the judgment of the witness, the answer is relevant to the matters before Chief Judge Wedoff and not to the matters before me or vice versa. While I regard this as a possibility, I see no reason why the problem cannot be remedied by judicial rulings in the few instances in which it might arrive. To require consolidation of all depositions to solve this problem seems to me to be overkill. Mandatory consolidation will require the time and effort of counsel to attend and participate in depositions when only a fraction (but perhaps a large one) of the matters covered are of relevance to them. As a solution, formal consolidation is not worth the costs it would impose. In the event that I am wrong in this, the course of discovery will clearly show this and I can correct whatever error I have made here in short order.

I note, too, that I expect counsel to agree on joint depositions in many cases and, should issues*fn1 of the relation of a deposition to the case before me as opposed to the matters before the Bankruptcy Court, I expect counsel to present all such issues first to Chief Judge Wedoff. Should Judge Wedoff conclude that the matter should be decided by me, the papers before Judge Wedoff, along with any transcript in which he expresses his views on the matter, may simply be filed in my court and the motion decided on those papers and any oral presentations of counsel.

The motion to consolidate all depositions is denied.

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