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Reid et al v. Neighborhood Assistance Corp of America

November 30, 2012

REID ET AL
v.
NEIGHBORHOOD ASSISTANCE CORP OF AMERICA



Name of Assigned Judge Sitting Judge if Other or Magistrate Judge Amy J. St. Eve than Assigned Judge

CASE TITLE

DOCKET ENTRY TEXT

Plaintiffs' motion to compel documents and information withheld on the basis of privilege [39] is denied.

O[ For further details see text below.] Notices mailed by Judicial staff.

STATEMENT

Before the Court is Plaintiffs' Kendall Reid's and Bradley Sears' Motion to Compel testimony and production of information withheld on the basis of privilege by Defendant Neighborhood Assistance Corporation of America ("NACA"). (R. 39, Mot. to Compel.) Defendant opposes the motion. (R. 50, Def.'s Resp. to Pls.' Mot. to Compel.) For the following reasons, the Court denies Plaintiffs' motion to compel and request to reopen discovery.

BACKGROUND

On December 7, 2011, Defendant NACA removed this action from the Circuit Court of Cook County based on the Court's diversity jurisdiction. See 28 U.S.C. §§ 1332(a), 1441; (Notice of Removal ¶ 1.) In their Complaint, Plaintiffs Kendall Reid and Bradley Sears alleged retaliatory termination under Illinois law by their former employer, NACA. (Compl. ¶¶ 31-32, 43-54.) Plaintiff Reid served NACA with interrogatories requesting, among other information, the names of those individuals involved in Kendall Reid's termination from NACA. (R. 40, Ex. A, Def.'s Resps. to Pls.' First Interrogs. ¶ 11.) ("Def.'s Resps."). On February 17, 2012, NACA responded to Plaintiffs' first set of interrogatories. (Def.'s Resps.)

In response to Interrogatory #11, which asked for the names of individuals involved in Kendall Reid's termination, NACA provided the names Donald Meadows, Rachelle Pride, and Christine Cannonier. (Id.) NACA's Responses identified "Counsel for NACA," as the person or persons "who prepared or assisted in the preparation of the responses." (Def.'s Resps. 2, ¶ 1.) Mr. Ethan Horowitz, Deputy General Counsel for NACA, later clarified in his deposition that "Counsel for NACA" referred to himself as well as "outside counsel" for NACA (Mot. to Compel, Ex. D, Horowitz Dep. Tr. 8:14-24, 9:1-3.)

On July 17, 2012, NACA served its second set of amended responses*fn1 ("Amended Responses" or "Am. Resps.") to Plaintiffs' first set of interrogatories.*fn2 (Mot. to Compel, Ex. B.) Specifically, NACA added the name Bruce Marks, NACA's CEO and President, to its response to Interrogatory #11, which asked for the names of individuals involved in Reid's termination. (Def.'s Resps. ¶ 11; Def.'s Am. Resps. ¶ 11.)

On August 16, 2012, Plaintiffs' Counsel deposed Mr. Marks and Mr. Ethan Horowitz, NACA's Deputy General Counsel. (Mot. to Compel, Ex. E, Mark Dep. Tr., 7:8; Mot. to Compel, Ex. D, Horowitz Dep. Tr. 1, 5:6.). Contrary to NACA's Amended Responses, Bruce Marks testified in his deposition that he was the only individual involved in the termination of Plaintiffs. (Marks Dep. Tr. 68:7-9, 62:7-12; Id. at 36:5-11, 68:4-5). Marks also testified that he had no knowledge of Sears' and Reid's alleged complaints apart from any privileged communications with NACA's attorneys. (Marks Dep. Tr. 79: 17-24; 80-84.)

During Mr. Horowitz's deposition, Mr. Horowitz indicated in response to a question about Interrogatory #2*fn3 that he would not disclose any privileged information obtained from his clients in the course of preparing and verifying NACA's first responses to Plaintiffs' interrogatories.*fn4 Later, when Plaintiffs' Counsel asked Mr. Horowitz about the information underlying NACA's responses to Interrogatory #11 and #13, which asked for the names of persons involved in the decision to terminate Kendall Reid and Bradley Sears, respectively, Mr. Horowitz asserted the attorney--client privilege.*fn5 (Horowitz Dep. Tr. 34-36.)

On September 19, 2012 Plaintiffs moved to compel NACA to produce documents and information withheld on the basis of the attorney--client privilege. They argue that NACA waived the privilege with respect to any privileged information underlying its responses to the interrogatories by Mr. Horowitz's verification of the responses to the first set of interrogatories and NACA's subsequent amendment of those responses.*fn6 Thus, according to Plaintiffs, in doing so, NACA placed "at ...

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