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Goldberg v. 401 North Wabash Venture LLC

United States District Court, Seventh Circuit

April 29, 2013



AMY J. ST. EVE, District Judge.

Before the Court is Defendants' motion in limine No. 3, in which Defendants move to bar Plaintiff from mentioning that Defendants have invoked the attorney-client privilege and from arguing that the jury may draw any negative inference therefrom. (R. 213, Defs.' MILs.) For the following reasons, the Court grants the motion.


Although the Federal Rules of Evidence do not explicitly authorize in limine rulings, the practice has developed pursuant to the district court's inherent authority to manage the course of trials. Luce v. United States, 469 U.S. 38, 41 n.4 (1984). In limine rulings avoid delay and allow the parties the opportunity to prepare themselves and witnesses for the introduction or exclusion of the applicable evidence. See Wilson v. Williams, 182 F.3d 562, 566 (7th Cir. 1999); United States v. Connelly, 874 F.2d 412, 416 (7th Cir. 1989). Trial courts have broad discretion in ruling on evidentiary issues before trial. See Christmas v. City of Chi., 682 F.3d 632, 640 (7th Cir. 2012). Moreover, regardless of the Court's initial ruling on a motion in limine, the Court may alter its ruling during the course of trial. See Farfaras v. Citizens Bank & Trust of Chicago, 433 F.3d 558, 565 (7th Cir. 2006). The Court will only grant a motion in limine when the evidence is clearly inadmissible for any purpose. See Jonasson v. Lutheran Child & Family Servs., 115 F.3d 436, 440 (7th Cir. 1997); Betts v. City of Chicago, Illinois, 784 F.Supp.2d 1020, 1023 (N.D. Ill. 2011).


At the heart of Defendants' motion is the sanctity of the attorney-client privilege. The privilege is "essential to the proper functioning of our adversary system of justice;" it "promote[s] full and frank consultation between a client and legal advisor by removing the fear of compelled disclosure of information." Ctr. Partners, Ltd. v. Growth Head GP, LLC, 981 N.E.2d 345, 355 (Ill. 2012) (internal quotations omitted). This protection is fundamental, and "its derogation is not to be undertaken lightly." United State v. Davis, 1 F.3d 606, 611 (7th Cir. 1993). Defendants seek an order precluding "Plaintiff at trial from mentioning that Defendants have invoked the attorney-client privilege with respect to privileged communications with counsel, or arguing that the jury can draw any adverse inference therefrom." (Defs.' MILs. at 1). Additionally, Defendants ask the Court to enter an order "bar[ring] Plaintiff from seeking to elicit further assertions of such privilege at trial." (R. 264, Defs.' Resp. at 6.) In their response to Plaintiff's sur-reply, Defendants also request that the Court "quash the subpoenas served on Trump's outside lawyers and bar Plaintiff from telling the jury that she subpoenaed' those lawyers, but they did not show up to testify." ( Id. ) According to Plaintiff, "the fact that... [Defendants] asserted a legal privilege to keep from disclosing information about their use of HCU-specialist lawyers for the project... bears directly on the central issue the jury must decide: whether the Trump Defendants concealed their development plans, misrepresented information, and offer only pre-textual reasons to suggest otherwise." (R. 236, Pl.'s Resp. at 2) (internal quotations omitted.)

As a preliminary matter, the issue of what Defendants' lawyers actually told them with regard to their development plans at the inception of the project will not be before the jury. Indeed, Defendants have consistently asserted the attorney-client privilege over these communications.[1] Plaintiff does not currently dispute, and has never disputed, that the contents of these communications are not subject to disclosure-she has not challenged the application of the attorney-client privilege to these communications nor has she alleged waiver. Rather, Plaintiff seeks to inform the jury only of the fact that Defendants communicated with attorneys and that Defendants have invoked the attorney-client privilege to protect these communications from disclosure. (Pl.'s Resp. at 10.) Notably, Defendants have conceded that they do not intend to elicit evidence or make arguments regarding their consultation with or retention of lawyers, and do not plan to assert an advice of counsel defense.[2]

According to Plaintiff the fact that Defendants met with their attorneys combined with other evidence of general industry practices leads to the inference that Defendants acted fraudulently-that is, that Defendants' attorneys advised Defendants on their development plans from inception, Defendants thereafter decided to exclude the revenue-producing facilities from the hotel's common elements, and Defendants nonetheless fraudulently continued to include these revenue-producing facilities in the official marketing materials. ( Id. at 9-10.) In other words, because Defendants have asserted the attorney-client privilege over the contents of their communications with lawyers, and not asserted an "advice of counsel" defense, Plaintiff wants to create an inference that is essentially the reverse of the advice of counsel defense. She wants to argue that industry practice dictates that "specialist" HCU lawyers would have advised Defendants from the start of the project to maintain control of the revenue-producing facilities of the hotel and not to include them in the common elements. She further wants the jury to infer that Defendants proceeded against the advice of counsel by initially including these facilities in the common elements and then removing them after Plaintiff signed her Purchase Agreements. As explained below, however, this inference is unfounded and highly speculative. Such speculation cannot serve as the basis for the purported relevancy of this evidence. See People v. Wheeler, 871 N.E.2d 728, 750 (Ill. 2007) ("Evidence [that] is... too speculative to shed light on the fact to be found... should be excluded."); People v. Enis, 564 N.E.2d 1155, 1161-62 (Ill. 1990) ("[A] trial court may reject offered evidence on the grounds of irrelevancy if it has little probative value due to its... speculative nature.").[3]

Indeed, although the Court specifically gave Plaintiff an opportunity to explain the relevance of any meeting Defendants may have had with counsel (R. 250), Plaintiff has failed to provide a logical evidentiary link between the fact that Defendants consulted with attorneys and the alleged fraudulent intent of Defendants. To date, Plaintiff has proffered as the basis for her inference both evidence that Defendants might introduce and evidence she intends to introduce herself. As discussed below, there is no relevant basis to elicit evidence or make argument regarding Defendants' consultation with or retention of lawyers.[4]

I. Defendants' Evidence

Plaintiff's initial theory about the relevancy of Defendants' communications with their lawyers is that Defendants might introduce evidence about these communications in their own defense. According to Plaintiff, "Trump employees are expected to testify at trial that significant meetings about [the Property Report and Amendments] occurred in the presence of the HCU-specialist lawyers the Trump Defendants hired." (Pl.'s Resp. at 9.) Plaintiff contends that if the jury is not informed during trial that Defendants have invoked the attorney-client privilege with regard to the substance of these communications, "the Trump Defendants will then be able to use the privilege improperly as both a shield to protect information from disclosure, and as a sword by leading the jury to draw the unwarranted inferences from the erroneous belief that the mere presence of HCU-specialist lawyers on the project ensures lawful conduct." ( Id. at 11.)

Plaintiff's contention is unfounded. Defendants explain that "[t]here has been no testimony or evidence in discovery about the substance of Defendants' privileged communications with their lawyers, and there will be no such testimony at trial." (R. 240, Defs.' Reply at 4.) They concede that they " will not call their attorneys to testify, and will not elicit any testimony of reliance on their attorneys' review of documents or advice." ( Id. ) Defendants " will not put on evidence that they had-or consulted with-specialist' (or any other) lawyers concerning the project." ( Id. ) In short, Defendants will produce no evidence referencing the privileged communications with their attorneys, and will thereby provide neither an impetus nor a basis for Plaintiff's requested inference.

II. Plaintiff's Evidence

Plaintiff bases an alternative theory of relevancy on her own introduction of evidence that would tie these attorney communications to an inference of fraud. Plaintiff contends that "both expert witnesses are expected to testify that the industry custom and practice is that developers retain specialized lawyers to assist and provide advice for their luxury HCU development projects." (Pl.'s Resp. at 8.) Given this evidence, Plaintiff claims that the fact of Defendants' communications with attorneys is relevant because it supports an inference that Defendants knowingly and fraudulently failed to disclose to Plaintiff the changes to the common elements before she purchased her unit. (R. 253, Pl.'s Sur-reply at 1-2, 4.) Plaintiff reasons as follows: an expert witness gives an opinion that "sophisticated hotel condominium developers hire large real estate law firms... from the inception of their projects to advise them on the aforementioned mapping issue'" ( Id. at 2);[5] Plaintiff then introduces evidence that Defendants met with lawyers-"the very type of lawyers [the expert] states sophisticated HCU developers retain" ( ...

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