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Nieves v. OPA, Inc.

United States District Court, N.D. Illinois

June 4, 2013

OSWALD NIEVES and JESUS ALCANTAR, on behalf of themselves and all other persons similarly situated, known and unknown, Plaintiffs,
OPA, INC. d/b/a OPA ESTIATORIO, and CHRIS GEORGES, individually, Defendants

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For Oswaldo Nieves, Jesus Alcantar, on behalf of themselves and all other persons similarly situated, known and unknown, Plaintiffs: David Erik Stevens, Sarah Jean Arendt, Douglas M. Werman, Werman Law Office, P.C., Chicago, IL; Maureen Ann Salas, Werman Law Offices, PC, Chicago, IL.

For Chris Georges, individually, Opa, Inc., doing business as Opa Estiatorio, Defendants: Douglas W. Lohmar, Jr., LEAD ATTORNEY, Lohmar Law Offices, Chicago, IL; Hallie D. Caldarone, Jackson Lewis LLP, Chicago, IL.


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The Honorable Virginia M. Kendall, United States District Court Judge.

Plaintiffs Oswaldo Nieves and Jesus Alcantar filed suit against Defendants OPA, Inc. and Chris Georges for the Defendants' alleged violations of the Fair Labor Standards Act, 29 U.S.C. 201 et seq . and the Illinois Minimum Wage Law, 820 ILCS 105/1 et seq . Plaintiffs have moved for a protective order to stop Defendants' alleged improper discovery tactics. Additionally, Plaintiffs ask this Court to disqualify counsel for the Defendants, Douglas Lohmar, due to his alleged ethical violations. For the reasons set forth below, this Court grants the motion in part and denies it in part.


The Plaintiffs filed a putative class action lawsuit against the Defendants that claims the Defendants violated the FLSA and IMWL by failing to pay them and other similarly-situated employees overtime wages. (Doc. 1.) Plaintiffs' counsel has represented Plaintiffs since the beginning of this case. ( Id. ) This case was initially assigned to the Honorable Blanche Manning. Judge Manning referred all discovery issues to Magistrate Judge Finnegan. (Doc. 28.) Counsel for the Plaintiffs and Lohmar both appeared at the initial discovery status conference in front of Judge Finnegan on November 6, 2012. (Transcript of Proceedings before the Honorable Sheila M. Finnegan on November 6, 2012, Doc. 46-1, at Ex. A.) During this conference, Lohmar informed the Court that he intended to depose both of the Plaintiffs prior to the issuance of written discovery and before the parties exchanged their Federal Rule of Civil Procedure 26(a)(1)(A) initial disclosures. With respect to Plaintiff Alcantar, Lohmar told the Court that he intended to notice the deposition to take place at the OPA Estiatorio restaurant in Vernon Hills, Illinois so that the Vernon Hills Police Department could locate Alcantar and execute an outstanding arrest warrant. ( Id. at p. 6.)

On November 5, 2012, Defendants noticed the deposition of Plaintiff Nieves for November 12, 2012. Plaintiffs' counsel refused to produce Nieves for this deposition. On November 14, 2012, Plaintiffs' counsel sent Lohmar a letter, pursuant to Northern District of Illinois Local Rule 37.2, in an effort to meet and confer regarding the proposed scope and subjects of the deposition. ( See Doc. 42-1 at Ex. B.) In this letter, Plaintiffs' counsel asked Lohmar: (1) to produce any documents he intended to use in the deposition at least seven days prior to the scheduled deposition

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date; (2) to agree to not inquire into Nieves's immigration status, tax reporting, or social security number; and (3) that Alcantar be deposed at an attorney-witness room in the Dirksen Federal Building instead of at the OPA restaurant so that the Vernon Hills Police Department could not arrest Alcantar at the deposition. ( Id. )

On December 5, 2012, Lohmar responded to Plaintiffs' counsel and stated that: (1) the Defendants refused to produce any documents in advance of Nieves's deposition; (2) he intended to cooperate with the Vernon Hills Police Department; and (3) the deposition of Nieves would take place on December 10 because Defendants " have confirmed that Mr. Nieves is available on December 10, 2012 and is willing to appear in our offices on that date." (Doc. 42-1 at Ex. C.) Plaintiffs' counsel again refused to produce Nieves for the deposition and moved for a protective order in this Court on January 8, 2013.

Unbeknownst to Plaintiffs' counsel, Defendant Chris Georges, Nieves's boss, called Nieves on December 10, 2012 and told Nieves to meet him in Chicago that day to assist him in moving merchandise to a new restaurant Georges was opening. ( See Affidavit of Oswaldo Nieves, Doc. 48-1 at Ex. A, ¶ 6.) [1] John Georges, the Defendant's brother, met Nieves when he arrived. John Georges told Nieves that " you're coming with me." ( Id. at ¶ ¶ 7-8.) Georges brought Nieves to Lohmar's offices. ( Id. at ¶ 10.) Lohmar proceeded to depose Nieves without Nieves's counsel present. ( See Transcript of December 10, 2012 Deposition of Oswaldo Nieves, Doc 48-1 at Ex. C.) Lohmar did not inform Nieves that he was entitled to counsel. (Doc. 48-1 at Ex. A, ¶ 14.) Lohmar questioned Nieves for approximately fifteen minutes. Among other things, he asked Nieves the following questions:

Where do you currently live?
Do you have a Social Security number?
Where did you live before you lived in Illinois?
What was the name of the city and state of Mexico?
Were you born and raised there?

(Doc. 48-1 at Ex. B, p. 5, ln. 18; p. 6, ln. 7; p. 7, ln. 2-3; p. 7, ln. 7.) Nieves then asked for a break. ( Id. at p. 12, ln. 19.) As soon as the parties were back on the record, Lohmar stated:

Mr. Nieves, I had been previously advised that you did not have a lawyer in this case even though that lawyer told me that you had hired him to be your lawyer. That lawyer told me that he doesn't want the deposition to go forward today. Now that you have testified that you are represented by that lawyer, I am reluctant to continue with this deposition. So at this time, I'm going to cancel the deposition but reserve the right to recall you when I can be sure your lawyer is present to represent you.

( Id. at p. 12-13.) Lohmar ended the deposition at this point.

In the Defendants' response to the motion for a protective order, Lohmar concedes that ...

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