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United Automobile Insurance Co. v. Veluchamy

October 29, 2010


The opinion of the court was delivered by: Judge Gettleman

Magistrate Judge Cole



On March 4, 2010, I granted the plaintiff's motion to compel answers to interrogatories and to produce documents. The Memorandum Opinion and Order discussed at length the controversy that underlay the motion. In brief, the defendant had refused to answer a single interrogatory or produce a single document in discovery, even though the discovery requests were directed to the very specific allegations made in the defendant's Answer and Affirmative Defenses, which charged the plaintiff with, among other things, fraud and unclean hands in connection with the defendant's unconditional guarantee to secure repayment of a loan to Mutual Bank. It was on that guarantee that the plaintiff's suit was based. See United Automobile Insurance v. Veluchamy, 2010 WL 749980 (N.D.Ill. 2010).

Here is how the Memorandum Opinion and Order summarized what had occurred:

On December 31, 2009, plaintiffs served the defendant with two sets of interrogatories (one for each plaintiff) as well as a Request to Produce Documents. On February 8, 2010, the defendant delivered his responses in which an objection was raised to every request on the grounds that the government was purportedly investigating the events leading to the receivership of Mutual Bank. Significantly, the defendant did not assert the Fifth Amendment, he only alluded to a "potential" Fifth Amendment objection. But that is not sufficient to preclude discovery. One either asserts the Fifth Amendment or responds to proper discovery or seeks a stay of the case so that one is not obligated either to respond to the complaint or to discovery requests. What cannot, however, be done is what Mr. Veluchamy has attempted to do.

That the defendant did not in fact raise the Fifth Amendment is further demonstrated by his own responses to the plaintiff in which he argued that he should not be forced, at this point, to choose whether to assert his Fifth Amendment rights and suffer the consequences of a potential negative inference from having done so or waive his Fifth Amendment rights with possible adverse consequences from the disclosure at some point in the future. This plainly is not an assertion of the Fifth Amendment, but an attempt to avoid the dilemma numerous parties face in cases throughout the country in both state and federal courts. While the dilemma may be an uncomfortable one, it is not one the Constitution forbids. See Baxter v. Palmigiano, 425 U.S. 308 (1976); Evans v. City of Chicago, 513 F.3d 735, 740 (7th Cir.2008); National Acceptance Co. of America v. Bathalter, 705 F.2d 924, 927 (7th Cir.1983). See also LaChance v. Erickson, 522 U.S. 262, 268 (1998) ("But there is nothing inherently irrational about... an investigative posture" that takes into consideration the failure of an employee who has asserted the Fifth Amendment to respond to inquiries). The appropriate way for a party in civil litigation to avoid the dilemma posed by being asked to respond to discovery is to seek a stay of the proceedings so as not to have to answer a complaint and failing that, to assert the Fifth Amendment in an answer, which will be treated as equivalent to specific denials, Bathalter, 705 F.2d at 929, and then to seek a stay of discovery.

Veluchamy, 2010 WL 749980 at *1-2 (footnote omitted).

The defendant chose to do none of these things. Instead, "he... resorted to a stratagem that is unsustainable. He... sought to have the best of all worlds:... to answer the complaint, to raise affirmative defenses, to avoid having to respond to discovery, and to avoid having to assert the Fifth Amendment, while effectively availing himself of its protections. It is self-help in its most obvious and unsustainable form." Veluchamy, 2010 WL 749980 at *3.*fn1 The Memorandum Opinion and Order concluded, inter alia, that by asserting the Affirmative Defenses, the defendant had waived the Fifth Amendment as it related to the discovery requests directed to the allegations of fraud and unclean hands. Additionally, the Memorandum Opinion and Order concluded that Mr. Veluchamy had waived the attorney-client privilege by not filing a privilege log in support of his generalized claim of attorney-client privilege and work-product protection. Veluchamy, 2010 WL 749980 at *5.*fn2

Mr. Veluchamy has asked that I reconsider or vacate the Memorandum Opinion and Order. The plaintiff has not opposed the motions as they pertain to the conclusion that raising the Affirmative Defenses resulted in a Fifth Amendment waiver as to the allegations of fraud and unclean hands. It does, however, oppose the motions as they pertain to the conclusion that the plaintiff's failure to have filed a privilege log resulted in a waiver of the attorney-client or work-product privileges as to the information sought by the discovery requests.

There are obvious institutional considerations that should preclude a court from being willing to set aside an opinion that one of the parties finds adverse to its interests, even though changed circumstances have made the rulings inconsequential to the interests of the other party, thereby accounting for its willingness to go along with a motion to vacate or reconsider. Just as a court is not bound by a party's improvident concession of error, United States v. Anderson, 547 F.3d 831, 832 (7th Cir. 2008), it is not bound by a party's agreement to have a court set aside all or a portion of an opinion at the request of its opponent. There could scarcely be stability, finality, and predictability in judicial decision-making if parties, at their whim, could have a court retract an opinion that resolved an issue previously submitted for judicial determination.

A. The Fifth Amendment Waiver From Having Raised Affirmative Defenses

The motions to reconsider and to vacate argue that Mr. Veluchamy did not waive the Fifth Amendment merely by asserting Affirmative Defenses.*fn3 They express concerns over the possible consequences for other cases that might be filed or in which Mr. Veluchamy might be involved in the future and the effects the waiver conclusion could have in this case. As to the former, it is enough to say that those events are not at hand and may never come to pass. Hence, there is no present controversy that needs to be addressed.

Moreover, the fear that the Memorandum Opinion and Order, if not corrected or vacated, could affect future disputes with other parties in other cases overlooks the fact that, the Opinion cannot, under the law of the case doctrine, have binding effect in any other case, even if district court rulings were binding precedent, which they are not. See Flying J, Inc. v. Van Hollen, 578 F.3d 569, 573 (7th Cir. 2009); DiMa Corp. ...

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