1 

UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

LEWIS A. BIANCHI, et al., ) 

 ) 

 Plaintiffs, ) 

 ) No. 12 C 0364 

vs. ) 

 ) Magistrate Judge Rowland 

HENRY C. TONIGAN, III, et al. ) 

 ) 

 Defendants. ) 

MEMORANDUM OPINION AND ORDER 

 Louis A. Bianchi, State’s Attorney of McHenry County, and three of his 

employees (collectively, “Plaintiffs”) bring this action against Special State’s 

Attorney Thomas K. McQueen, Quest Consultants International, and certain Quest 

employees (collectively, “Quest”), alleging Defendants conspired to fabricate false 

criminal charges and prosecute Bianchi and his employees without probable cause 

or credible evidence.1 

 Defendant McQueen has filed a motion to dismiss based in large part on the 

doctrines of absolute and qualified immunity. (Dkt. 72). That motion is currently 

pending before the District Court. Discovery has been ongoing since its filing. 

McQueen now requests the Court to stay all discovery or, in the alternative, quash 

nine third-party document subpoenas issued by the Plaintiffs.2 (Dkt. 136). For the 

reasons stated below, the Court denies the motion in its entirety, but directs the 

parties to seek leave of this Court prior to conducting any oral discovery. 

 

1 On November 9, 2012, Plaintiffs dismissed Henry C. Tonigan, III, with prejudice. (Dkt. 176). 

2 On August 16, 2012, Defendant Quest was granted leave to join McQueen’s Motion. (Dkt. 149). 

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 1. Motion to Stay Discovery 

On March 26, 2012, McQueen filed a Motion to Dismiss, arguing that his role 

as a Special Prosecutor on Bianchi’s case immunizes him against any liability 

associated with the acts alleged in the Complaint. Approximately four and a half 

months later, after the parties filed their Report of Parties’ Planning Meeting 

pursuant to Rule 26(f), McQueen filed the instant motion to stay discovery until the 

District Court issues a ruling on the Motion to Dismiss. (Dkt. 136). Although he 

requests a stay of all discovery, the motion specifically addresses only the nine third 

party subpoenas issued by Plaintiffs. (Dkt. 136 ¶¶ 4-7, 11-14). 

 The Federal Rules permit trial courts broad discretion over the timing and 

extent of discovery. See, e.g., Clinton v. Jones, 520 U.S. 681, 706 (1997); Brown-Bey 

v. United States, 720 F.2d 467, 470 (7th Cir. 1983); Fed. R. Civ. Pro. 26(c). The 

filing of a motion to dismiss by itself does not mandate a stay of discovery pending 

resolution of that motion, nor does the right to discovery continue in light of a 

pending dispositive motion. Walsh v. Heilmann, 472 F.3d 504, 505 (7th Cir. 2006). 

Rather, the determination to stay discovery is based on the individual case and 

whether ongoing discover is “unlikely to produce facts necessary to defeat the 

motion.” Sprague v. Brook, 149 F.R.D. 575, 577 (N.D. Ill. 1993); see also Orlando 

Residence, Ltd., v. GP Credit Co., LLC, No. 04-C-439, 2006 WL 2849866, at *7 (E.D. 

Wis. Sept. 29, 2006). Courts are more likely to stay discovery pending a motion to 

dismiss where the motion will resolve an important threshold issue. 

 Motions to dismiss based on the doctrine of qualified immunity are prime 

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examples of motions that can present “threshold issues” often warranting a stay of 

discovery. See Landstrom v. Ill. Dep't of Children & Family Servs., 892 F.2d 670, 

674 (7th Cir. 1990), see also Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009). The 

doctrine of qualified immunity has been fashioned by the courts, at least in part, to 

“shield [public officers] from undue interference with their duties and from 

potentially disabling threats of liability” and to prevent “the distraction of officials 

from their governmental duties.” Harlow v. Fitzgerald, 457 U.S. 800, 806 & 816 

(1982); see also Anderson v. Creighton, 483 U.S. 635, 646 (1986) (“One of the 

purposes of the Harlow qualified immunity standard is to protect public officials 

from the broad-ranging discovery that can be peculiarly disruptive of effective 

government....”). The purpose of qualified immunity is “to safeguard government, 

and thereby to protect the public at large, not to benefit its agents.” Wyatt v. Cole,

504 U.S. 158, 168 (1992). 

 This Court is not tasked with determining whether McQueen is entitled to 

prosecutorial or qualified immunity. However, while the allegations here involve a 

time when McQueen was serving as a Special Prosecutor, he is currently in private 

practice. Moreover, the outstanding written discovery directed to McQueen consists 

of one (1) interrogatory and four (4) requests to produce. (Dkt. 138-1). Nowhere does 

the defendant argue the burden of this pending discovery. In light of the fact that 

McQueen is not currently serving as a public official, the Court denies the motion to 

stay all discovery. However, while Defendant McQueen’s Motion to Dismiss is 

pending, the Court directs the parties to seek leave of the Court prior to scheduling 

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oral discovery. 

2. Motion to Quash Third Party Subpoenas

 The main focus of McQueen’s Motion is his request to quash nine third-party 

subpoenas issued by the Plaintiffs, arguing that they are unduly burdensome and 

call for material protected by the attorney-client or the work product privilege. 

 On July 30, 2012, Plaintiffs issued subpoenas to the following nine witnesses 

or entities: Mark Gummerson, Wesley Pribla, David Linder, Crystal Lake Police 

Department, William LeFew, McHenry County Treasurer’s Office, McHenry County 

Sheriff’s Office, Daniel Regna, and the law firm of Martin, Brown, Sullivan, 

Roadman & Hartnett, Ltd. (hereinafter “Martin Brown”). Several of the subpoenaed 

parties have either already responded or indicated that their response is 

forthcoming.3 On August 14, 2012, Martin Brown sent a letter to Plaintiffs 

explaining that the firm provided McQueen with office space and secretarial 

services. It objected to the Subpoena on two grounds: (a) that it seeks McQueen’s 

attorney client communications; and (b) that it should be stayed pending Mr. 

McQueen’s motion to dismiss. (Dkt. 157 at 2-3). On August 28, 2012, Gummerson 

and the McHenry County Sheriff’s Department filed one-page “objection[s]” to the 

 

3Gummerson; Pribla; Linder; Crystal Lake Police Department; LeFew; and McHenry County 

Treasurer’s Office have responded. (Dkt. 138 at 8-9). Ragna indicated that he wished to wait for the 

Court’s ruling on this Motion before tendering responsive documents. Id.

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subpoenas; but they did not explain the nature of their objections, and they 

requested no relief from the Court.4 

Generally, a party has no standing to seek to quash a Rule 45 subpoena 

served to a non-party. Kessel v. Cook County, No. 00 C 3980, 2002 WL 398506, at *2 

(N.D. Ill. March 14, 2002) (Schenkier, J.) (citing 9A CHARLES ALAN WRIGHT &

ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 2459 (3d ed. 2008)). That 

is because it is for the subpoena recipient, not the party to the litigation, to evaluate 

the burden of responding to the subpoena and the risk that responsive document 

will contain privileged information. An exception to the rule arises where the 

objecting party claims some personal right or privilege with regard to the document 

sought. Wi-LAN v. LG Electronics, Inc., No. 10 CV 7721, 2011 WL 148058, at *3 

(N.D. Ill. Jan. 18, 2011) (Zagel, J.) (“[c]ourts have consistently held that absent a 

showing of personal right or privilege with respect to the documents or subjects of a 

non-party subpoena, a party has no standing to challenge ... that subpoena.”).

Putting the Martin Brown subpoena aside, Defendant has no standing to object to 

the remaining subpoenas, and his motion to quash is denied. 

Plaintiffs issued the subpoena to Martin Brown after learning that one of its 

secretaries, Sheron Rice, drafted documents, including interview outlines, at 

Defendant McQueen’s request, during the investigation and prosecution of 

Plaintiffs. With respect to this subpoena, the Court finds that Defendant has 

potentially asserted as attorney-client or work-product privilege to the subpoenaed 

 

4 On October 5, 2012,Keith Nygren, McHenry County Sheriff, requested the Court to appoint counsel 

for purposes of addressing the subpoena. (Dkt. 169). That Petition will be addressed by separate 

minute order. 

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documents. However, the response to a subpoena that may call for privileged 

material is not to quash the subpoena, but rather to produce any non-privileged 

documents and to create a privilege log for the remaining documents. See Fed. R. 

Civ. P. 45(d)(2)(A)(ii); Wi-LAN v. LG Electronics, Inc., No. 10 CV 7721, 2011 WL 

148058, at *3 (N.D. Ill. Jan. 18, 2011)(“I decline to quash the entire subpoena on 

such a sweeping claim of privilege....the better approach is to allow CFIR/Perri to 

simply assert their privilege document-by-document.”).5 Therefore, the motion to 

quash this subpoena is also denied. 

CONCLUSION

 For the foregoing reasons, the Court denies Defendant McQueen’s Motion to 

Stay Discovery and Quash Nine Document Subpoenas Served by Plaintiffs (Dkt. 

136). However, while Defendant McQueen’s Motion to Dismiss is pending, the 

Court directs the parties to seek leave of the Court prior to scheduling oral 

discovery. 

 ENTER: 

 _________________________________ 

 MARY M. ROWLAND 

 United States Magistrate Judge 

Dated: November 26, 2012 

 

5 Cf. Hernandez v. Longini, No. 96 C 9203, 1997 WL 754041, at *2 (N.D. Ill. Nov. 13, 1997) (noting 

that the work product privilege is not available when a prosecutor in a prior criminal investigation 

later objects to discovery of her work product by a litigant in a related civil lawsuit). 

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