United States District Court, E.D. Wisconsin
THOMAS PEREZ, Secretary of the United States Department of Labor, Plaintiff,
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
PAMELA PEPPER United States District Judge
order addresses the parties' ongoing issues regarding the
Secretary of Labor's assertion of privileges during the
course of discovery.
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).
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.
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.
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.
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.
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.
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.
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.
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 ...