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IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

GRANT BIRCHMEIER on behalf

of himself and a class of

others similarly situated,

et al.,

Plaintiffs,

vs.

CARIBBEAN CRUISE LINE, INC.,

et al.,

Defendants.

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Docket No. 12 C 4069

Chicago, Illinois

January 3, 2013

9:30 a.m.

TRANSCRIPT OF PROCEEDINGS

BEFORE THE HONORABLE MATTHEW F. KENNELLY

APPEARANCES:

For the Plaintiff: LOEVY & LOEVY

BY: MR. SCOTT R. RAUSCHER

312 North May Street

Suite 100

Chicago, Illinois 60607

For the Defendant: GREENSPOON MARDER, P.A.

BY: MR. RICHARD W. EPSTEIN

200 East Broward Boulevard

Suite 1500

Fort Lauderdale, Florida 33301

TABET DI VITO ROTHSTEIN

BY: MR. TIMOTHY A. HUDSON

209 South LaSalle Street

7th Floor

Chicago, Illinois 60604

Valarie M. Ramsey, CSR, RMR

P.O. Box 16

Hazel Crest, Illinois 60429

(708) 860-8482

Case: 1:12-cv-04069 Document #: 101 Filed: 04/26/13 Page 1 of 10 PageID #:648
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THE CLERK: 12 C 4069, Birchmeier versus Caribbean

Cruise.

MR. RAUSCHER: Good morning, your Honor. Scott

Rauscher for plaintiffs.

MR. EPSTEIN: Good morning. Richard Epstein for the

defendant Caribbean Cruise Line.

MR. HUDSON: Good morning. Tim Hudson on behalf of

defendant Caribbean Cruise Line.

THE COURT: So the guy who wants to withdraw isn't

here. I kind of expected that actually.

MR. EPSTEIN: Your Honor, I just wanted to point out

I think he may have been dropped from the ECF notifications at

some point. I did send him an email on the 28th, the day we

filed our response.

THE COURT: I mean, he's still showing up on the

docket. Why do you think he's been dropped?

MR. EPSTEIN: He's on the docket, but when you look

at the notice, at least the ones that come through on our end,

his name doesn't appear to be listed, and it says these people

got notice, and it lists everyone except for him. It may have

happened after his first pro hac was denied, in between when

he was denied and then approved.

THE COURT: Yeah, you're right. I just clicked on

the last thing, the corrected order on the motion to dismiss,

and he doesn't show up as getting notice.

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MR. EPSTEIN: And we were on the notice of this.

THE COURT: So okay.

MR. EPSTEIN: He does know about --

THE COURT: I understand. So, Augie, you need to

talk to somebody on 20. It's Mr. San -- how do you pronounce

it?

MR. RAUSCHER: I think Sanscrainte.

THE COURT: Sanscrainte, the lawyer that shows up as

the attorney for the last three defendants. His appearance is

listed on the docket, but he's not showing up as getting the

notices when you click on the little radio button. And, you

know, your explanation is probably as good as any. This was

Judge Lindberg's case originally, and there had been a pro hac

motion which was denied, and maybe some glitch there that --

well, so I can't deal with his motion to withdraw today

because there's essentially an objection to it, don't let him

withdraw until he turns over the documents.

Have you had any discussions with him since you filed

the response at all?

MR. RAUSCHER: I haven't.

THE COURT: Okay.

MR. RAUSCHER: I haven't had a discussions, and while

the emails reflect some discussion, at times a call, but the

calls just didn't happen.

MR. EPSTEIN: Your Honor, we'd point out we've also

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filed a motion to compel essentially seeking the same

discovery.

THE COURT: Right, right.

MR. EPSTEIN: So we kind of mirror Mr. Rauscher's

request on that. Obviously, there's ways around it. I mean,

we can issue a subpoena, but it seems like an easy vehicle.

THE COURT: The man has said that he has documents,

and he said in at least one or maybe more than one of the

emails to Mr. Rauscher that he's willing to produce the

"nonprivileged documents" that he has.

Well, here's what I'm going to do, then. Does your

motion to compel ask for the same materials that

Mr. Rauscher's asking for in his response to --

MR. EPSTEIN: Similar. I think ours might have been

a little bit more extensive, but basically there's a lot of

overlap. So, yeah, I would say the simple answer is yes. He

has what he has, I mean, so whatever it is --

THE COURT: Well, it may be that he asked for

something that you didn't ask for.

MR. EPSTEIN: I think not. I think not.

THE COURT: Okay. Well, so what I'm going to do is

I'm going to grant the defendant's motion to compel. That's

document No. 69. And the order should say that the ESG

defendants, all capitals, the ESG defendants are directed to

produce the responsive documents by two weeks from now, which

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would be the 17th of January.

I'm going to enter and continue the motion to

withdraw to a date that I'll give you in a second. And the

order is going to go on to say that the court will not grant

the motion to withdraw until counsel produces the documents

requested by both plaintiff and the other defendants. So

we'll come up with a date for that in a second.

So where do we go from here? I mean, I know there's

this sort of relatively ancient motion for class cert which

was filed when you filed the lawsuit. So what's been done in

terms of discovery, much of anything?

MR. RAUSCHER: We've served discovery on everyone.

We have responses from Caribbean. We're in the meet and

confer process on that. And I think we're fairly close to

either resolving our issues or coming back here with a motion

if necessary.

THE COURT: And do you have a feel at this point for

how many depositions you're going to need to take?

MR. RAUSCHER: I don't yet.

THE COURT: I mean, I assume some of them are going

to be with the people who are probably not going to get

another lawyer once Mr. Sanscrainte is out.

MR. RAUSCHER: We'd ideally depose them. I think

it's going to be difficult to find them. It was difficult to

serve the one company that listed the treasurer or the person

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who seems to be behind this at his home address, so it was

difficult to serve him initially. But that's right.

THE COURT: Okay.

MR. EPSTEIN: We can sort out anything that relates

to any depositions of our people. Obviously, mine are

available, and we'll get that sorted out.

We would expect to depose the plaintiff.

THE COURT: Anybody else? I mean, you might need to

depose the third parties as well.

MR. EPSTEIN: Correct.

THE COURT: I'm calling them third parties. They're

really co-defendants.

MR. EPSTEIN: Exactly. I wasn't duplicating that,

but obviously we have a common interest there. But

Mr. Rauscher and I will certainly work out any discovery,

further discovery or depositions of the CCL people.

THE COURT: So do you have sort of class size

discovery? Is that part of what's outstanding?

MR. RAUSCHER: We do.

THE COURT: And are you going to likely have that

material, or is that going to be --

MR. EPSTEIN: No, we don't. That's the thing. We've

advised them of that in response to the discovery. Our client

does not have the call records of the calls that were made.

They have certain records, but only of things that were calls

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that were transferred to them, and that was a small fraction.

THE COURT: The hits basically, in other words.

MR. EPSTEIN: Yes, correct.

THE COURT: And you're looking for the whole scope,

not just the hits.

MR. RAUSCHER: We're looking for the whole thing, but

the hits are important because the hits are likely going to

be --

THE COURT: And from your discussions with

Mr. Sanscrainte do you have the impression that what he's got

is going to give you anything close to that?

MR. RAUSCHER: I don't from the discussions, but he

did note in one of his recent emails that he responded to

civil investigative demands. At least that's what I assume he

meant. And so I don't know what they'll say when we get

those.

THE COURT: So they may or may not have them.

MR. RAUSCHER: Right, we may or may not, but I think

we will almost certainly be able to meet --

THE COURT: So in terms of your meet and confer on

the discovery between the two of you, if I were to set this

over for three weeks, does that give you enough time to kind

of bring that to a head and get on file whatever you need to

get on file, if anything?

MR. RAUSCHER: I think it should. Right now I'm

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waiting for answers to certain questions, so assuming we get

those, then yes.

MR. EPSTEIN: There was active discussions before the

holidays. Then the holidays, and we're back. So we'll get it

done fairly shortly.

THE COURT: So the enter and continue date on the

motion to withdraw is January the 24th at 9:30. That's going

to be your status date too.

Probably what I'm -- almost certainly what I'm going

to have you do at some point, Mr. Rauscher, within the next

couple of months is file an amended motion for class

certification, but we'll talk about that when you come back.

And so 9:30 on that date.

And my goal would be to have you have noticed up any

discovery-related motions relating to the current outstanding

stuff. And I guess if I were in your shoes I would assume

that you're going to need up to end up subpoenaing the people

with ESG, and just sort of figure out how you're going to go

about doing that.

I assume they're not in Illinois.

MR. RAUSCHER: No. As far as we know, none of them

are in Illinois.

THE COURT: Okay.

MR. RAUSCHER: Your Honor, can I ask you a question

to clarify the order on Mr. Sanscrainte?

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THE COURT: You can ask. I'm not sure I'll be able

to answer it, but go ahead.

MR. RAUSCHER: The question is whether he is going to

be able to withhold documents that he thinks are privileged or

work product.

THE COURT: Well, yeah. I mean, that would sort of

be the norm, wouldn't it? Is there some reason why I

shouldn't let him do that? Because he waited too long?

MR. RAUSCHER: He waited too long.

THE COURT: Let's see what he does. Let's see what

he does and then we'll sort of take it from there. I mean,

there is a certain amount of leverage I have over him since he

wants out and keeps saying I'm not a litigation attorney. It

sort of begs the question of why he filed his appearance in

the first place, but that's an issue for another day.

MR. RAUSCHER: Well, one of the issues we have with

the privilege thing is he noted in one of his responses to me

that he thought that documents he produced to estates would be

privileged.

THE COURT: Oh, that will be an interesting one.

That will be an interesting one.

Did I give a date for him to produce the documents in

response to the motion to compel? Did I say 14 days?

THE CLERK: The 17th.

THE COURT: 17th. Okay. All right.

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So, well, you'll find out. And, you know, he's not

out until I let him out, and in fact I'm going to put in the

order that Mr. Sanscrainte is ordered to appear in person at

the status hearing. So maybe that will get him to produce

more stuff rather than less.

Take care.

MR. RAUSCHER: Thank you.

MR. EPSTEIN: Thank you, your Honor.

MR. HUDSON: Thanks, Judge.

* * * * * * *

C E R T I F I C A T E

I hereby certify that the foregoing is a true and

correct transcript of the above-entitled matter.

/s/ Valarie M. Ramsey 01-16-2013

 ___ __

Court Reporter Date

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