United States District Court, N.D. Illinois, Eastern Division
FRANCES GECKER, solely as trustee for Cynthia Collins, Plaintiff,
MENARD, INC., a/k/a MENARDS, Defendant.
Jeffrey T. Gilbert Magistrate Judge.
Motion to Compel Geraci Law L.L.C. to Produce Records  is
denied. See Statement for further details.
matter is before the Court on Defendant's Motion to
Compel a third-party, Geraci Law L.L.C. ("Geraci
Law"), to produce records pursuant to a subpoena
("Motion to Compel") . For the reasons
discussed below, the Motion to Compel is denied.
lawsuit stems from personal injuries allegedly suffered by
Cynthia Collins. See Plaintiffs Complaint at Law
("Complaint") [1-1]. On April 29, 2014, an employee
of Defendant Menard, Inc., a/k/a Menards
("Menards"), allegedly was pushing a row of
shopping carts from a parking lot into a Menards store.
Id. at ¶ 4. The employee, allegedly acting
carelessly and negligently, hit Collins with the shopping
carts causing her to sustain injuries. Id.
August 6, 2014, several months after this incident, Collins
filed a bankruptcy petition. Trustee's Objection to
Motion to Compel ("Trustee's Objection") 
at 2; Motion to Compel  at ¶ 2. It is undisputed
that Collins did not schedule as an asset of her bankruptcy
estate the claim against Menards asserted in this case.
Motion to Compel  at ¶ 3; Deposition of Cynthia
Collins ("Collins' Dep.")  at 148; see
also Trustee's Objection  at 2. On September 22,
2014, Frances Gecker, the trustee of Collins' bankruptcy
case ("the Trustee"), filed a No Asset Report in
Collins' bankruptcy case. Trustee's Objection  at
2. About two months later, the bankruptcy case was closed.
Id. At some point after the bankruptcy case was
closed, a lawyer agreed to prosecute Collins' personal
injury claim against Menards. Id. When the lawyer
learned of Collins' bankruptcy, he contacted the Trustee
and informed her of Collins' claim against Menards.
Id. Eventually, the bankruptcy case was reopened so
that the Trustee could pursue that claim for the benefit of
the bankruptcy estate. Id. On April 25, 2016, the
Trustee filed the present lawsuit in which she asserts
Collins' claim against Menards. Complaint [1-1] at ¶
November 21, 2016, Collins was deposed in this case.
Collins' Dep.  at 1. At her deposition, Collins said
she was represented in her bankruptcy action by attorneys at
Geraci Law. Id. at 147-48. She admitted she did not
put "on [her bankruptcy] petition anything about"
the claim the Trustee is now asserting against Menards on
behalf of the bankruptcy estate. Id. at 148. Collins
appears to have testified she discussed with Frank Hernandez,
one of her Geraci Law bankruptcy attorneys, the fact that she
was receiving treatment for the injuries she suffered in the
incident at Menards in April 2014 and that her medical bills
were being paid. Id. at 148-50. According to
Collins' testimony, Hernandez told Collins she did not
need to list her claim or potential claim against Menards
because she had not filed a lawsuit about it. Id. at
two weeks after Collins' deposition, Menards' counsel
served a Rule 45 subpoena on Geraci Law. [41-1]. The subpoena
commanded Geraci Law to produce the "[e]ntire bankruptcy
file ... for the Cynthia Collins bankruptcy."
Id. at 3. In response to the subpoena, Geraci Law
produced some documents. Motion to Compel  at
¶¶ 5-10. But Geraci Law withheld other documents in
Collins' bankruptcy file, claiming the attorney-client
privilege and the work product doctrine protected them from
production. Id. Geraci Law produced a privilege log
listing the documents it was withholding. [41-2], Menards
then filed the Motion to Compel that is now before the Court,
seeking roughly a dozen documents withheld by Geraci Law.
Motion to Compel  at ¶¶ 3, 9, 12. The Court
will refer to these documents as "the
Communications." In its Motion to Compel, Menards
asserts the Communications must be produced because (1) they
are relevant to its estoppel defense, and (2) Collins waived
any protection the attorney-client privilege might provide
for the Communications. Geraci Law has neither filed a brief
in opposition to Menards' motion nor moved for a
protective order. But the Trustee filed an objection to
Menards' motion, which effectively is a motion for a
protective order, arguing the Communications are irrelevant
to this case. The Trustee took no position on Menards'
argument that Collins waived the attorney-client privilege as
to discussions with her bankruptcy attorneys at Geraci Law
concerning her claim or potential claim against Menards.
Federal Rule of Civil Procedure 26(b), a party "may
obtain discovery regarding any nonprivileged matter that is
relevant to any party's claim or defense and proportional
to the needs of the case." Fed.R.Civ.P. 26(b)(1).
Menards argues the Communications are relevant to its
estoppel defense, which is premised on Collins' failure
to schedule her claim or potential claim against Menards in
her bankruptcy petition. See Answer to Plaintiffs
Complaint at Law  at p. 4. According to Menards, the
Communications "potentially could provide insight
into" Collins' decision not to schedule that claim
or potential claim because they "likely will reflect
what, if any, disclosures she made to her bankruptcy
attorneys regarding her potential claim against
[Menards]." Menard's Reply  at ¶ 2. The
Trustee responds by saying Collins' failure to schedule
her claim or potential claim against Menards and her reasons
for not doing so are completely irrelevant to Menards'
defense of this case, relying on the Seventh Circuit's
decision in Metrou v. M.A. Mortenson Company, 781
F.3d 357 (7th Cir. 2015).
Metrou, a debtor did not disclose a potential tort
claim in his bankruptcy petition and then, after his
bankruptcy case closed, tried to bring the claim himself.
Id. at 358. Eventually, the debtor notified his
bankruptcy trustee of the claim, and the trustee substituted
as the plaintiff in the tort case. Id. After the
substitution, the district court ruled the trustee was barred
from recovering in the tort action more than the value of the
debts left unpaid in the debtor's bankruptcy.
Id. at 358-59. On appeal, the Seventh Circuit
reversed saying the trustee was "entitled to pursue [the
undisclosed tort claim] as an asset of the estate in
bankruptcy, " and it rejected the imposition of a
damages cap, noting such a restriction could injure creditors
in the debtor's bankruptcy case by "[r] educing the
stakes in the tort suit." Id. at 360. The court
of appeals was not swayed by the defendant's argument
that the debtor's failure to schedule the asset should
limit the trustee's recovery in the tort suit. Rather, as
the court of appeals put it: "Whether or not [the
debtor] should have disclosed the claim in the bankruptcy
does not matter to a suit maintained by the Trustee,
who is not even arguably culpable for misconduct."
Id. (emphasis added).
Court agrees with the Trustee that Metrou controls
its resolution of Menards' Motion to Compel. As
previously stated, Menards argues the Communications are
relevant because they "likely will reflect what, if any,
disclosures [Collins] made to her bankruptcy attorneys
regarding her potential claim against [Menards]."
Menard's Reply  at ¶ 2. But Collins' failure
to schedule her claim or potential claim against Menards
"does not matter to" this lawsuit "maintained
by the Trustee." Metrou, 781 F.3d at 360. That
means evidence related to Collins' failure to disclose
that claim or potential claim against Menards in her
bankruptcy filing is not relevant to any claim or defense in
this case within the meaning of Rule 26(b).
says Metrou is distinguishable because the debtor in
that case acted in good faith when he initially did not
disclose his tort claim in his bankruptcy filing, whereas the
evidence in this case, according to Menards, indicates
Collins may have acted in bad faith by not scheduling her
claim or potential claim against Menards. Menards' Reply
 at ¶¶ 7, 8. Even if Metrou is
distinguishable from this case on that basis, however, it is
a distinction without a difference. The Seventh Circuit
explicitly addressed what should happen when a debtor
potentially acts in bad faith by intentionally not disclosing
a claim during prior bankruptcy proceedings. In such an
instance, the question of "[w]hether [the debtor] tried
to hide the claim in bankruptcy is . .. more appropriately
addressed to the bankruptcy judge." Metrou, 781
F.3d at 360. The bankruptcy judge "can decide . . . what
disposition to make of any proceeds that remain after paying
counsel and the creditors." Id. If the
bankruptcy judge finds the debtor "was trying to deceive
his creditors, " then he or she "may decide to give
the creditors a bonus or perhaps to return any excess to the
defendants in this tort suit." Id.
light of the Seventh Circuit's unambiguous guidance in
Metrou, whether Collins acted in good faith or bad
faith when she did not disclose her claim or potential claim
against Menards in her bankruptcy petition is not relevant to
this case. Rather, it is an issue that will, as necessary and
appropriate, be decided in the context of Collins'
bankruptcy case after this case is resolved.
Court recognizes that its ruling on Menards' Motion to
Compel does not dispose of Menards' affirmative defense
of estoppel on the merits. Instead, the Court's decision
is based solely on the asserted relevance of the
Communications to this lawsuit. As already explained, the
Communications are not relevant, under Metrou, to
Menards' defense of this case, including to its estoppel
defense. And Menards has not identified another claim or
defense to which the Communications are ostensibly relevant.
Therefore, for all of these reasons, ...