Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Perez v. Mueller

United States District Court, E.D. Wisconsin

September 26, 2016

THOMAS PEREZ, Secretary of the United States Department of Labor, Plaintiff,
v.
VERONICA MUELLER, et al., Defendants.

          DECISION AND ORDER DENYING DEFENDANTS' MOTION FOR RELIEF FROM JULY 27, 2016 ORDER (DKT. NO. 113) AND REFERRING CASE TO MAGISTRATE JUDGE DUFFIN FOR PRETRIAL PROCEEDINGS

          HON. PAMELA PEPPER United States District Judge

         This order addresses the parties' ongoing issues regarding the Secretary of Labor's assertion of privileges during the course of discovery.

         At the time the plaintiff's filed the complaint in November of 2013, the case was assigned to the Honorable Rudolph T. Randa. On April 14, 2016, the Mueller Defendants moved to compel discovery from the Secretary of Labor. Dkt. No. 74. The Mueller Defendants argued that the information they sought was discoverable, and that the Secretary's invocation of various privileges- attorney-client, work product, and government/executive, among others-was improper. The Mueller Defendants' brief concluded as follows: “WHEREFORE, the Mueller Defendants respectfully request that this Court grant their Motion to Compel and order the Secretary to produce the withheld and redacted discovery or provide sufficient information to ascertain the validity of the asserted privileges.” Dkt. No. 75 at 23 (emphasis added).

         On May 27, 2016, Judge Randa granted the Mueller Defendants' motion to compel. Dkt. No. 95. First, Judge Randa rejected the Secretary's argument that the information sought by the Mueller Defendants was not within the scope of discoverable information. Id. at 1-2. Second, Judge Randa found that the Secretary's invocation of privilege was improper. Id. at 2-3.

         On June 10, 2016, the Secretary moved for clarification, asking the court to advise it as to whether it could comply with Judge Randa's May 27, 2016 order by producing a revised privilege log. Dkt. No. 100. On July 27, 2016, Judge Randa issued an order indicating that the Secretary could comply by producing a revised privilege log. Dkt. No. 112. This court signed the order on behalf of Judge Randa, because he was working from home as a result of his illness.

         On July 29, the Mueller Defendants filed a motion, asking for relief from Judge Randa's July 27, 2016 order. Dkt. No. 113. They filed an accompanying brief. Dkt. No. 114. Six days later, on August 2, the case was reassigned to this court, because Judge Randa's condition had worsened; Judge Randa passed away on September 6, 2016.

         The Mueller Defendants argue that Judge Randa's July 27, 2016 order was improper. Dkt. No. 113 at 1. They ask that the court either strike the order or further clarify Judge Randa's rulings that the documents they asked the court to compel were not privileged. Id. In their brief, they point out that Judge Randa originally stated on May 27, 2016 that the Secretary's invocations of privilege were improper, and granted their motion to compel in full. Dkt. No. 114 at 3. They argue that the clarification order issued on July 27 was improper because (a) the May 27 order was the law of the case, (b) it was improper for me-Judge Pepper-to sign the July 27 order when the case had not been reassigned to me and I had no authority to amend Judge Randa's orders, (c) the July 27 order functionally reversed the May 27 order, and (d) the July 27 order did not address the validity of some of the Secretary's privilege claims and his instructions not to answer deposition questions. Id. at 4.

         The Mueller Defendants' first argument is that the July 27, 2016 order constituted the law of the case. “The law of the case doctrine ‘is a rule of practice, based on sound policy [and recites] that, when an issue is once litigated and decided, that should be the end of the matter.'” Creek v. Village of Westhaven, 144 F.3d 441, 445 (7th Cir. 1998) (quoting Gertz v. Robert Welch, Inc., 680 F.2d 527, 532 (7th Cir. 1982)). The doctrine often comes into play when an appellate court remands a case to the trial court; it prevents parties from re-litigating on remand issues already laid to rest prior to the appeal. That is not what happened with the Secretary's motion for clarification. In their motion to compel, the Mueller Defendants had asked Judge Randa to compel the production of withheld documents or to require the Secretary to “provide sufficient information to ascertain the validity of the asserted privileges.” Dkt. No. 75 at 23. In other words, the defendants asked for alternative forms of relief. In his motion to clarify, the Secretary stated, “The Mueller Defendants requested alternative forms of relief . . . . They also suggested submission of an ‘in camera' review of the documents. . . . [T]he Secretary requests that he be allowed to satisfy this Court's Order with a Second Revised Privilege Log . . . .” Dkt. No. 100 at 2. In the alternative, the Secretary asked Judge Randa to reconsider his May 27, 2016 order. Id. As far as this court can tell from reading the July 27, 2016 order, Judge Randa clarified the scope of the relief that he had ordered in the May 27, 2016 order.

         “At bottom . . . a court is neither obligated nor foreclosed from reconsidering its prior decisions; instead, the principles underlying motions to reconsider and the law of the case doctrine must be meted out in the individual case to arrive at a proper exercise of the court's discretion.” In re August, 1993 Regular Grand Jury (Medical Subpoena I), 854 F.Supp. 1403, 1406 (S.D. Ind. 1994). The law of the case doctrine does not prohibit a court from reconsidering-or clarifying-its own rulings; courts do so with frequency, and should do so if they believe their original decisions to have been incorrect or unclear. Judge Randa appears to have decided to clarify which form of relief he was ordering, and did so in the July 27, 2016 order. The law of the case does not mandate striking that order.

         The Mueller Defendants' second argument is that the July 27, 2016 order is invalid because I signed the order for Judge Randa. At the end of 2015, Judge Randa was diagnosed with brain cancer. He immediately underwent surgery and began treatment. A couple of months after his diagnosis, he took senior status, and, because criminal cases are heavily court-intensive and Judge Randa needed to be out of the office to focus on his treatment, his criminal cases were reassigned to other judges in the district. Judge Randa continued, however, to work on his civil cases from home. Depending on his treatment schedule and how he felt, either he would sign orders himself or he would authorize his staff to ask one of the other judges in the district to sign orders for him. In the case of the July 27, 2016 order, Judge Randa authorized his staff to ask another judge in the building to sign the order on his behalf. I was that judge, and I signed that order. I did not evaluate or analyze the Secretary's motion to clarify. I did not draft the July 27, 2016 order. I signed the original with my wet signature, followed by the words “for RTR.” I will not strike the July 27, 2016 order on the basis of the fact that it bore my signature on Judge Randa's behalf.

         The defendants' third argument is that the July 27, 2016 order functionally reversed the May 27, 2016 order, and did not address several of the issues the Mueller Defendants had raised in their motion to compel regarding the validity of the Secretary's privilege claims. The May 27, 2016 order stated as follows:

. . . The Mullers and the Defendant Trusts, generally the defendants, move to compel certain discovery from the Secretary. The motion is granted.
The scope of discovery is governed by Rule 26(b)(1), which provides that parties
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, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in rsolving the issues, and whether the burden or expense of the proposed discovery outweighs its ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.