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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

OSWALD NIEVES and JESUS 

ALCANTAR, on behalf of themselves and 

all other persons similarly situated, known 

and unknown

Plaintiffs,

v.

OPA, INC. d/b/a OPA ESTIATORIO, and 

CHRIS GEORGES, individually, 

Defendants.

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No. 12 C 3267

The Honorable Virginia M. Kendall

MEMORANDUM OPINION AND ORDER

Plaintiffs Oswaldo Nieves and Jesus Alcantar filed suit against Defendants OPA, Inc. and 

Chris Georges for the Defendants’ alleged violations of the Fair Labor Standards Act, 29 U.S.C. 

201 et seq. and the Illinois Minimum Wage Law, 820 ILCS 105/1 et seq. Plaintiffs have moved 

for a protective order to stop Defendants’ alleged improper discovery tactics. Additionally, 

Plaintiffs ask this Court to disqualify counsel for the Defendants, Douglas Lohmar, due to his 

alleged ethical violations. For the reasons set forth below, this Court grants the motion in part 

and denies it in part.

BACKGROUND

The Plaintiffs filed a putative class action lawsuit against the Defendants that claims the 

Defendants violated the FLSA and IMWL by failing to pay them and other similarly-situated 

employees overtime wages. (Doc. 1.) Plaintiffs’ counsel has represented Plaintiffs since the

beginning of this case. (Id.) This case was initially assigned to the Honorable Blanche Manning. 

Judge Manning referred all discovery issues to Magistrate Judge Finnegan. (Doc. 28.) Counsel 
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for the Plaintiffs and Lohmar both appeared at the initial discovery status conference in front of 

Judge Finnegan on November 6, 2012. (Transcript of Proceedings before the Honorable Sheila 

M. Finnegan on November 6, 2012, Doc. 46-1, at Ex. A.) During this conference, Lohmar 

informed the Court that he intended to depose both of the Plaintiffs prior to the issuance of 

written discovery and before the parties exchanged their Federal Rule of Civil Procedure 

26(a)(1)(A) initial disclosures. With respect to Plaintiff Alcantar, Lohmar told the Court that he 

intended to notice the deposition to take place at the OPA Estiatorio restaurant in Vernon Hills, 

Illinois so that the Vernon Hills Police Department could locate Alcantar and execute an 

outstanding arrest warrant. (Id. at p. 6.)

On November 5, 2012, Defendants noticed the deposition of Plaintiff Nieves for 

November 12, 2012. Plaintiffs’ counsel refused to produce Nieves for this deposition. On 

November 14, 2012, Plaintiffs’ counsel sent Lohmar a letter, pursuant to Northern District of 

Illinois Local Rule 37.2, in an effort to meet and confer regarding the proposed scope and 

subjects of the deposition. (See Doc. 42-1 at Ex. B.) In this letter, Plaintiffs’ counsel asked 

Lohmar: (1) to produce any documents he intended to use in the deposition at least seven days 

prior to the scheduled deposition date; (2) to agree to not inquire into Nieves’s immigration 

status, tax reporting, or social security number; and (3) that Alcantar be deposed at an attorneywitness room in the Dirksen Federal Building instead of at the OPA restaurant so that the Vernon 

Hills Police Department could not arrest Alcantar at the deposition. (Id.)

On December 5, 2012, Lohmar responded to Plaintiffs’ counsel and stated that: (1) the 

Defendants refused to produce any documents in advance of Nieves’s deposition; (2) he intended 

to cooperate with the Vernon Hills Police Department; and (3) the deposition of Nieves would 

take place on December 10 because Defendants “have confirmed that Mr. Nieves is available on 
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December 10, 2012 and is willing to appear in our offices on that date.” (Doc. 42-1 at Ex. C.) 

Plaintiffs’ counsel again refused to produce Nieves for the deposition and moved for a protective 

order in this Court on January 8, 2013.

Unbeknownst to Plaintiffs’ counsel, Defendant Chris Georges, Nieves’s boss, called 

Nieves on December 10, 2012 and told Nieves to meet him in Chicago that day to assist him in 

moving merchandise to a new restaurant Georges was opening. (See Affidavit of Oswaldo 

Nieves, Doc. 48-1 at Ex. A, ¶ 6.)1

 John Georges, the Defendant’s brother, met Nieves when he 

arrived. John Georges told Nieves that “you’re coming with me.” (Id. at ¶¶ 7-8.) Georges 

brought Nieves to Lohmar’s offices. (Id. at ¶ 10.) Lohmar proceeded to depose Nieves without 

Nieves’s counsel present. (See Transcript of December 10, 2012 Deposition of Oswaldo Nieves, 

Doc 48-1 at Ex. C.) Lohmar did not inform Nieves that he was entitled to counsel. (Doc. 48-1 at 

Ex. A, ¶ 14.) Lohmar questioned Nieves for approximately fifteen minutes. Among other 

things, he asked Nieves the following questions:

Where do you currently live?

Do you have a Social Security number?

Where did you live before you lived in Illinois?

What was the name of the city and state of Mexico?

Were you born and raised there?

(Doc. 48-1 at Ex. B, p. 5, ln. 18; p. 6, ln. 7; p. 7, ln. 2-3; p. 7, ln. 7.) Nieves then asked for a 

break. (Id. at p. 12, ln. 19.) As soon as the parties were back on the record, Lohmar stated:

 1 Defendants moved in their surreply to strike Nieves’s affidavit for failing to comply with the requirements 

of 28 U.S.C. § 1746. After reviewing the affidavit, the Court concludes that it complies with the requirements of § 

1746. It is dated, notarized, contains an original signature and contains the requisite language that Nieves 

“declare[d] under penalty of perjury that for [sic] foregoing is true and correct.” Defendants contend that Nieves did 

not actually sign the document because he has used a different type of signature elsewhere. Absent additional 

evidence that this declaration, which was sworn to under penalty of perjury and notarized, is a forgery, the Court 

credits the affidavit. Importantly, the Defendants do not dispute any of the facts sworn to in the affidavit.
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Mr. Nieves, I had been previously advised that you did not have a lawyer in this 

case even though that lawyer told me that you had hired him to be your lawyer. 

That lawyer told me that he doesn’t want the deposition to go forward today. 

Now that you have testified that you are represented by that lawyer, I am reluctant 

to continue with this deposition. So at this time, I’m going to cancel the 

deposition but reserve the right to recall you when I can be sure your lawyer is 

present to represent you.

(Id. at p. 12-13.) Lohmar ended the deposition at this point.

In the Defendants’ response to the motion for a protective order, Lohmar concedes that 

he deposed Nieves without Plaintiffs’ counsel present. (See Doc. 46 at 10 [“The only such 

communication between Defense Counsel and Mr. Nieves was hardly ex-parte; it was made 

during a deposition to which Plaintiffs’ counsel was invited and specifically told that the 

deposition would proceed without him. It was cancelled when Mr. Nieves told Defendants’ 

counsel that he actually had an attorney, which was different than what he had told counsel 

previously.”].) Plaintiffs then filed a reply brief in which they amended their requested relief to 

include an order disqualifying Lohmar from representing the Defendants in this case due to his 

violation of Illinois Rule of Professional Conduct 4.2. (Doc. 48.)

The Court allowed the Defendants and Lohmar to file a surreply so that they could 

address the allegations raised in the Plaintiffs’ reply brief. (Doc. 49.) The surreply brief 

concedes that Lohmar deposed Nieves without Plaintiff’s counsel present but argues that such 

conduct did not violate Rule 4.2. (Doc. 50.) Subsequently, Lohmar filed a notice with this Court 

stating he intends to file a motion to withdraw as counsel for OPA and Defendants Georges. 

(Doc. 59.) 
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DISCUSSION

I. The Discovery Issues Raised in the Motion for the Protective Order

A. Legal Standard for a Motion for a Protective Order

Federal Rule of Civil Procedure 26(b) provides that a party may “obtain discovery 

regarding any matter, not privileged, that is relevant to the claim or defense of any party, 

including the existence, description, nature, custody, condition and location of any books, 

documents, or tangible things.” Relevancy is broadly defined to include “any matter that bears 

on, or that reasonably could lead to other matter[s] that could bear on, any issue that is or may be 

in the case.” Oppenheimer Funds, Inc. v. Sanders, 437 U.S. 340, 351 (1978). 

Despite the broad discovery rights granted by Rule 26(b), the Court “may, for good 

cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or 

undue burden or expense.” Fed. R. Civ. P. 26(c)(1). This Court maintains the discretion to 

determine whether a protective order is appropriate and what degree of protection is required. 

See Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984). The only requirement in deciding 

whether or not to issue a protective order is the statutory mandate of "good cause." See Id. at 37. 

The party moving for a protective order must establish that good cause exists for the Court to 

exercise its discretion in entering a protective order. See Fed. R. Civ. P. 26(c); see also, e.g., 

Kodish v. Oakbrook Terrace Fire Protection Dist., 235 F.R.D. 447, 449-50 (N.D. Ill. 2006).

Though good cause is difficult to define in absolute terms, "it generally signifies a sound basis or 

legitimate need to take judicial action." Wiggins v. Burge, 173 F.R.D. 226, 229 (N.D. Ill. 1997)

(quoting In re Alexander Grant & Co. Litig., 820 F.2d 352, 356 (11th Cir. 1987)). Good cause is 

established by showing that disclosure will cause a clearly defined and serious injury. See, e.g., 

Felling v. Knight, No. IP 01-0571-C-T/K, 2001 WL 1782360, *2 (S.D. Ind. Dec. 21, 2001)
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(Tinder, J.). Specific factual demonstrations are required to establish that a particular discovery 

request is improper and that good cause exists for issuing the order. See, e.g. Felling v. Knight, 

211 F.R.D. 552, 554 (S.D. Ind. 2003) ("To establish good cause a party must submit 'a particular 

and specific demonstration of fact, as distinguished from stereotyped and conclusory 

statements.'") (internal citations and quotations omitted).

B. Defendants May Not Seek Discovery Regarding Plaintiff Nieves’s 

Immigration Status

The first relief requested by Plaintiffs is for an order prohibiting the Defendants from 

inquiring into the immigration status of Plaintiff Nieves during his deposition or otherwise 

seeking discovery regarding the issue. While the Seventh Circuit has not addressed the issue, 

other courts in this district and elsewhere have uniformly found that the immigration status of a 

party is not a line of inquiry that is reasonably calculated to lead to the discovery of admissible 

evidence in action brought for unpaid wages under the FLSA because undocumented workers are 

not exempted from the definition of “employee” in the FLSA. See, e.g., Villareal v. El Chile, 

266 F.R.D. 207, 214 (N.D. Ill. 2010) (“discovery regarding plaintiffs’ immigration status is not 

relevant to any claim or defense” in an FLSA case); Patel v. Quality Inn S., 846 F.2d 700, 702 

(11th Cir. 1988) (same); In re Reyes, 814 F.2d 168, 170 (5th Cir. 1987) (issuing writ of 

mandamus directing the district court to withdraw a discovery order that required plaintiffs in 

FLSA case to answer questions regarding whether they were undocumented workers); 

Hernandez v. City Wide Insulation of Madison, Inc., No. 05 C 0303, 2006 WL 3474182, at *1

(E.D. Wis. Nov. 30, 2006) (finding that plaintiffs’ immigration status was irrelevant and 

prejudicial); Ponce v. Tim’s Time, Inc., No. 03 C 6123, 2006 WL 941963, at *1 (N.D. Ill. Mar. 

16, 2006) (holding that immigration status was an irrelevant issue under the FLSA because 

“undocumented workers are ‘employees’ within the protection of the FLSA, every bit as much as 
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documented workers”); Cortez v. Medina’s Landscaping, No. 00 C 6320, 2002 WL 31175471, at 

*1 (N.D. Ill. Sept. 30, 2002) (denying defendants’ motion to compel discovery concerning 

immigration status); see also 29 U.S.C. 203(e)(1) (defining “employee” as “any individual 

employed by an employer”). 

Since status as an undocumented worker does not affect the ability to recover under the 

FLSA, this Court agrees with the reasoning of the cases cited above and sees no basis for why 

discovery regarding Nieves’s immigration status is reasonably calculated to lead to the discovery 

of admissible evidence. Indeed, allowing this discovery could have a pronounced chilling effect 

with respect to parties filing FLSA claims because aggrieved parties would not file otherwise 

valid claims due to the fear of potential deportation if their employer could use discovery to 

determine their true status and then report it to the Immigration and Naturalization Services. See, 

e.g., Flores v. Amigon, 233 F. Supp. 2d 462, 464 (E.D.N.Y. 2002) (stating that allowing this 

discovery would create the “danger of intimidation, the danger of destroying the cause of action, 

and would inhibit plaintiffs in pursuing their rights” because plaintiffs would fear deportation if 

they pursue their rights). Permitting such discovery would incentivize employers to hire 

undocumented workers and then refuse to pay legal wages because they could quash future 

litigation by threatening the undocumented workers’ ability to remain in the United States if they 

pursued any such litigation. This runs contrary to the purpose of the FLSA and should not be 

allowed.

Defendants do not dispute the fact that Nieves’s immigration status is irrelevant; 

however, they argue that the Court should deny the motion as premature since no discovery has 

been issued on the subject. This argument is meritless. First, Rule 26(c) is designed, in part, to 

protect a party from harassing discovery. As a result, a party may file a motion for a protective 
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order in anticipation of an issue arising provided the party first complies with the meet and 

confer requirements of Rule 37 and this district’s local rules. See, e.g., Villareal, 266 F.R.D. at 

212-14 (entering protective order excluding immigration status from the scope of a deposition in 

anticipation of the issue arising at the deposition).

Second, the issue is not premature because it appears that the Defendants sought to 

inquire into the issue during their aborted deposition of Nieves. Defendants asked Nieves: (1) 

whether he has a Social Security Number; (2) how long he has lived in Illinois; (3) where he 

lived prior to living in Illinois; and (4) whether he was born and raised in Mexico. While 

Defendants did not directly ask Nieves whether he is in the United States legally, it is reasonable 

to infer that Defendants were trying to ascertain this information from this line of questioning. 

Accordingly, Defendants may not use the discovery process to inquire into the immigration 

status of Nieves.

C. Defendants May Not Seek Discovery Relating to Plaintiffs’ Tax 

Returns 

The Defendants are also not permitted to inquire into whether the Plaintiffs filed tax 

returns with either the Internal Revenue Service or the Illinois Department of Revenue because 

such inquiries are generally just an alternative method to discover a plaintiff’s immigration 

status. See, e.g., Galaviz-Zamora v. Brady Farms, Inc., 230 F.R.D. 499, 503 (W.D. Mich. 2005) 

(granting protective order barring discovery of tax returns because such discovery requests were

made for purposes of revealing plaintiff’s immigration status); Montoya v. S.C.C.P. Painting 

Contractors, Inc., 530 F. Supp. 2d 746, 749-51 (D. Md. 2008) (same); Castillo v. Hernandez, 10 

C 247, 2011 WL 1528762, at *8-10 (W.D. Tex. Apr. 20, 2011) (same); Sanchez v. Creekstone 

Farms Premium Beef, LLC, No. 11-4037, 2011 WL 5900959 (D. Kan. Nov. 23, 2011) (same). 

Here, the Court does not see any basis for why the Defendants need to know the information 
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contained in the Plaintiffs’ tax returns other than to attempt to discover Plaintiffs’ immigration 

status. Indeed, the Defendants fail to articulate any reason for why this information is reasonably 

calculated to lead to the discovery of admissible evidence. Instead, they merely rehash their 

argument regarding prematurity. This is insufficient to establish that such discovery is 

warranted. See, e.g., Vajner v. City of Lake Station, No. 09 C 245, 2010 WL 4193030, at *2 

(N.D. Ind. Oct. 18, 2010) (stating that when the relevancy of a discovery request “is not readily 

apparent, the party seeking the discovery has the burden to show the relevancy of the request.”) 

(internal citations omitted). Since it appears that the Defendants would only seek this 

information in an attempt to uncover Plaintiffs’ immigration status, they are not entitled to it.

D. Both Parties Are Directed to Comply with Federal Rule of Civil 

Procedure 26(a)(1)(A)

Plaintiffs also demand that Defendants produce the documents they intend to use during 

the deposition of Nieves pursuant to Federal Rule of Civil Procedure 26(a)(1)(A)(ii). Rule 

26(a)(1)(A)(ii) directs the parties to provide to the other party without awaiting a discovery 

request “a copy – or a description by category and location – of all documents, electronically 

stored information, and tangible things that the disclosing party has in its possession, custody, or 

control and may use to support its claims or defenses, unless the use would be solely for 

impeachment.” Compliance is a mandatory requirement of federal civil procedure subject to 

certain exceptions enumerated in the Rule that are not relevant here. See Rule 26(a)(1)(A); see 

also Robinson v. Champaign Unit 4 School District, 412 Fed. Appx. 873, 878 (7th Cir. 2011) 

(noting that the initial disclosure requirements of Rule 26(a)(1)(A) are mandatory). Since neither 

party has complied with their obligations under the Rule, both parties are directed to do so.

However, Rule 26(a)(1)(A) does not require a party to produce specific documents. 

Indeed, it does not require a party to produce documents at all. See Rule 26(a)(1)(A)(ii) (“or a 
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description by category and location”); see also, e.g., DE Techs. Inc. v. Dell Inc., 238 F.R.D. 

561, 566 (W.D. Va. 2006) (noting that defendant “correctly argues that the initial disclosure 

required by Rule 26 does not require the production of the documents upon which a party intends 

to rely” because a party can provide a description by category instead). Therefore, while the 

Defendants have failed to comply with their initial disclosure obligations, they were not 

obligated to produce the specific documents under Rule 26(a)(1)(A) that they intended to use 

during the deposition of Nieves. If Plaintiffs wanted the specific documents that the Defendants 

intended to use during the deposition of Nieves, they should have sent Defendants a document 

request pursuant to Federal Rule of Civil Procedure 34.2

 Since Plaintiffs did not do this, the 

Court has no basis to order Defendants to produce these specific documents. See Fed. R. Civ. P. 

37 (discussing when a court may compel disclosure of documents).3

II. Ethical Issues Raised by Plaintiffs’ Motion for a Protective Order

A. Counsel for the Defendants Violated the United States District Court 

for the Northern District of Illinois’s Rules of Professional Conduct

Plaintiffs contend that counsel for the Defendants violated Rule 4.2 of the Illinois Rules 

of Professional Conduct by deposing Plaintiff Nieves without the presence of Plaintiff’s counsel. 

As an initial matter, Plaintiffs cite the wrong applicable rule. Northern District of Illinois Local 

Rule 83.50 provides that:

 2 In their reply brief, Plaintiffs state that they sent Defendants a request for production of documents 

pursuant to Rule 34 on December 7, 2012. They also allege that the Defendants have not responded to the request. 

However, there is no motion to compel on these requests. Even if there were, it would be improper as there is no 

allegation the parties have met and conferred with respect to these document requests. See Fed. R. Civ. P. 37(a)(1); 

N.D. Ill. Local Rule 37.2.

3 Since the issue is not properly before the Court, the Court does not need to address the potential privilege 

issues surrounding a specific request for documents that are to be used in a deposition. See, e.g., Sporck v. Peil, 759 

F.2d 312 (3d. Cir. 1985) (holding that an attorney’s selection and ordering of documents for use in a deposition 

constitutes privileged attorney-work product); but see In re San Juan Dupont Plaza Hotel Fire Litig., 859 F.2d 1007, 

1017 (1st Cir. 1988) (holding that work product doctrine does not apply to shield exhibit list for use in an upcoming 

deposition from disclosure).
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Applicable disciplinary rules are the Model Rules adopted by the American Bar 

Association. On any matter not addressed by the ABA Model Rules or for which 

the ABA Model Rules are inconsistent with the Rules of Professional Conduct in 

the state in which the lawyer's principal office is located, any lawyer admitted to 

practice in Illinois is governed by the Illinois Rules of Professional Conduct; any 

lawyer not admitted to practice in Illinois is bound by the Rules of Professional 

Conduct for that state in which the lawyer's principal office is located.

N.D. Ill. Local Rule 83.50 (2011). ABA Model Rule of Professional Conduct 4.2 provides that:

In representing a client, a lawyer shall not communicate about the subject of the 

representation with a person the lawyer knows to be represented by another 

lawyer in the matter, unless the lawyer has the consent of the other lawyer or is 

authorized to do so by law or a court order.

Accordingly, although the provisions are identical, the pertinent question for this Court is 

whether Lohmar’s conduct violated ABA Model Rule 4.2 and not Illinois Rule of Professional 

Conduct 4.2.4

In their surreply brief, the Defendants effectively concede that Lohmar violated Rule 4.2. 

The no contact rule is designed to protect “the represented person against overreaching by 

adverse counsel, and reduce the likelihood that clients will disclose privileged or other 

information that might harm their interests.” ABA Formal Op. 95-396 (1995); see also, e.g., In 

re Air Crash Disaster Near Roselawn, Ind., 909 F. Supp. 1116, 1121 (N.D. Ill. 1995) (noting that 

this rule is designed to prevent parties from “making ill-considered statements or admissions”) 

(internal citations and quotations omitted); Parker v. Pepsi-Cola Gen. Bottlers, Inc., 249 F. Supp. 

2d 1006, 1009-10 (N.D. Ill. 2003) (same). 

An attorney may not avoid the scope of this rule “by closing [his] eyes to circumstances 

that make it obvious that the person to be communicated with is represented in the matter in 

 4 Rule 4.2 of the Illinois Rules of Professional Conduct provides that “[i]n representing a client, a lawyer 

shall not communicate about the subject of the representation with a person the lawyer knows to be represented by 

another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law 

or a court order.” Ill. Sup. Ct. R. Prof’l Conduct 4.2 (2013).
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question.” Parker, 249 F. Supp. 2d at 1009 (quoting ABA Formal Op. 95-396 (1995)). Once he 

has notice that the opposing party is represented, the attorney must deal with the other party’s 

attorney on all matters. Id. Moreover, the rule focuses on the duties of attorneys, not the rights 

of the parties. See id.; see also United States v. Lopez, 4 F. 3d 1455, 1462-63 (9th Cir. 1993). 

Therefore, this privilege may only be waived by the opposing party’s attorney; the opposing 

party principal may not waive the no contact rule. See, e.g., Parker, 249 F. Supp. 2d at 1010

(citing ABA Formal Op. 95-396 (1995)). 

Here, Lohmar concedes that he deposed Plaintiff Nieves for fifteen minutes without 

Plaintiff’s counsel present. However, he asserts that he did not violate Rule 4.2 because he did 

not know that Nieves was represented. In support of this assertion he states that: (1) Nieves told 

his client, Chris George, that he was not represented; (2) the declarations signed by Nieves and 

attached to pleadings in the case filed by Plaintiff’s counsel did not actually contain Nieves’s 

signature; (3) the declarations were not verified by Nieves; (4) Nieves’s attorney never told 

Nieves that he should not appear for the deposition; (5) Nieves’s attorney never filed a motion to 

stop the deposition from commencing; and (6) Plaintiffs’ counsel had previously been sanctioned 

for filing false affidavits. (Doc. 50. at 9.) Indeed, counsel for the Defendants states that one of 

his purposes in unilaterally taking Nieves’s deposition was to determine whether Nieves was 

actually represented. (Id.).

Even assuming that Defendants’ counsel assertions are true, he clearly did not have 

license to depose Nieves without the presence Plaintiffs’ counsel. See, e.g., Parker, 249 F. Supp. 

2d at 1010 (holding that attorney violated Rule 4.2 when he deposed opposing party in a separate 

case without the presence of counsel); Monceret v. Bd. of Prof. Resp., 29 S.W. 3d 455 (Tenn. 

2000) (holding that deposing party outside of presence attorney violated ethical rules despite the 
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fact the party consented to the deposition). It is indisputable that Defendants’ counsel was aware 

that Plaintiffs filed this case with the assistance of Plaintiffs’ counsel. It is indisputable that 

Defendant’s Counsel was aware that Nieves’s counsel appeared in court on behalf of Nieves. It 

is indisputable that Defendant’s counsel discussed scheduling the deposition of Nieves with his

counsel. This information is more than sufficient to make Defendants’ counsel aware that 

Nieves was represented by counsel. See ABA Formal Op. 95-396 (“[I]f retained counsel has 

entered an appearance in a matter, whether civil or criminal, and remains counsel of record, with 

corresponding responsibilities, the communicating lawyer may not communicate with the person 

until the lawyer has withdrawn her appearance.”); see also, e.g., Parker, 249 F. Supp. 2d at 1009 

(stating that counsel cannot close his eyes to the obvious that a party is represented)

Indeed, even if Defendants’ counsel’s doubts were reasonable (and the Court does not 

believe they are), Defendants’ counsel should have brought his concerns to the attention of the 

Court, not to engage in self-help by seeking to depose the Plaintiff without the presence of 

counsel. See, e.g., McClelland v. Blazin Wings, Inc., 675 F. Supp. 2d 1074, 1078 (D. Colo. 

2009) (holding that attorney violated the analogous Rule 4.2 of the Colorado Rules of 

Professional Responsibility when he contacted opposing party through an investigator before 

clarifying whether plaintiff’s counsel in a separate case extended to the instant case); ABA 

Formal Op. 95-396 (noting that an attorney should seek court approval before communicating 

with a party who may be represented by counsel). Such a course of action is patently improper. 

Therefore, the Court finds that Defendants’ Counsel violated Rule 4.2.
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B. Counsel for the Defendants Did Not Violate Illinois Supreme Court 

Rule of Professional Conduct 8.4(g)

Plaintiffs also contend that Lohmar violated Rule 8.4 of the Illinois Rules of Professional 

Responsibility5 by stating to the Court during the November 5, 2012 initial discovery status 

hearing that he intended to schedule the deposition of Plaintiff Alcantar so that the Vernon Hills 

Police Department could execute an outstanding warrant and arrest Alcantar. Illinois Supreme 

Court Rule of Professional Responsibility 8.4(g) provides that it is professional misconduct for 

an attorney to “present, participate in presenting, or threaten to present criminal or professional 

disciplinary charges to obtain an advantage in a civil matter.” At the initial discovery

conference, Lohmar told Judge Finnegan that the Vernon Hills Police Department asked him to 

schedule the deposition of Plaintiff Alcantar at the OPA restaurant so that they could arrest 

Alcantar when he showed up to the restaurant. Lohmar also indicated that he intended to comply 

with the Vernon Hills Police Department’s request. In addition, Lohmar told Judge Finnegan 

that if Alcantar failed to appear for his deposition, the Defendants would move to dismiss 

Alcantar as a plaintiff.

While Lohmar certainly threatened to use Alcantar’s legal situation to the advantage of 

the Defendants, he did not present, participate in presenting, or threaten to present criminal 

charges in this case. Independent, pending charges already existed against Alcantar at the time 

Lohmar made this statement to Judge Finnegan. There is no allegation or evidence that Lohmar 

was involved in filing the charges against Alcantar. There is no allegation that Lohmar 

threatened to file additional charges against Alcantar. While Lohmar stated that he intended to 

 5 While the ABA has issued a formal opinion that this conduct could violate the Model Rules, see ABA 

Formal Opinion 92-367 (1992), there is no ABA Model Rule that specifically prohibits this conduct. However, this 

Court has the power to hold Lohmar accountable for violating the Illinois Rules of Professional Responsibility. See

N.D. Ill. Local Rule 83.50; In re Snyder, 472 U.S. 634, 645 n. 6 (1985) (holding that a federal court can charge 

attorneys with knowledge of, and hold them accountable to, state ethics rules in the state where the court sits).
15

assist the police department in facilitating Alcantar’s arrest and intended to use the threat of the 

pending arrest to his advantage by moving to dismiss Alcantar if Alcantar did not show for his 

deposition, these actions do not implicate the Rule because Alcantar had already been charged by 

the Vernon Hills Police Department. Therefore, since Lohmar did not present, participate in 

presenting, or threaten to present criminal charges, he did not violate the Rule.

Plaintiffs’ reliance on Boswell v. Gumbaytay is misplaced. There the court found that 

defendant’s counsel violated the analogous Alabama Rule of Professional Responsibility when 

he attempted “to coerce enforcement of the alleged ‘3 outstanding warrants for assault and drugs’ 

against the defendant.” Boswell v. Gumbaytay, No. 07 C 135, 2009 WL 1515884, at *7 (M.D. 

Ala. June 1, 2009). However, in attempting to coerce the enforcement of the warrants, the 

defendant’s counsel threatened plaintiff’s counsel with charges of aiding and abetting and 

obstruction of justice. See id at *4. (quoting e-mail from defendant’s counsel to plaintiff’s 

counsel that stated that “[y]our client Bosewll [sic] has 3 outstanding warrants for assault and 

drugs you are hereby notified that if your client is not prosceuted [sic] and or turned in 

immeadiatly [sic] you will be charged with aiding and abetting, compounding and obstruction. 

Yours Truly, Al Newell.”). Therefore, the attorney in Boswell violated the rule by threatening 

plaintiff’s counsel with the imposition of criminal charges for aiding and abetting and 

obstruction of justice, not by facilitating the execution of an outstanding warrant. Therefore, the 

Court concludes that Lohmar did not violate Rule 8.4(g).

III. The Remedy

In their motion for a protective order and in their reply brief in support of their motion for 

protective order, Plaintiffs request a wide range of relief. As described above, the Defendants 

are barred from seeking any discovery relating to Plaintiffs’ immigration status and tax returns. 
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Second, the Defendants are barred from using Nieves’s December 10, 2012 deposition testimony 

or any evidence obtained therefrom in the present litigation. Defendants and their counsel are 

further ordered to destroy any copies of the deposition in any format, as well as any summaries 

or analyses of the deposition prepared by counsel or at his request. The Defendants must certify 

to this Court that it has done so by June 12, 2013. See, e.g., Parker, 249 F. Supp. 2d at 1013 

(barring defendants from using testimony from deposition taken outside of counsel’s presence 

and ordering destruction of all materials related to the deposition). 

However, the Defendants may depose both Plaintiffs in the future provided that the 

depositions occur at a mutually agreed upon location and are subject to all the limitations set 

forth in the Rules of Civil Procedure. Additionally, Defendants may not inquire into the 

Plaintiffs’ immigration status or ask about Plaintiffs’ tax returns during the depositions. See id. 

(allowing defendant to depose plaintiff in the future, subject to certain restrictions, after taking 

plaintiff’s deposition without counsel present).

Defendants are ordered to pay Plaintiffs’ reasonable attorneys’ fees and costs incurred in 

the preparation of filing this motion. See Fed. R. Civ. P. 37(a)(5). Plaintiffs must submit a fee 

petition and supporting affidavit no later than fourteen days from the date of the entry of this 

Order. 

Both parties are also ordered to comply with the initial disclosure requirements set forth 

in Rule 26(a)(1)(A). The parties shall exchange their initial disclosures within seven days of the 

entry of this Order.

Finally, since Lohmar has represented to the Court that he intends to move for leave to 

withdraw from the case, the Court finds that the request for disqualification is moot. 
17

CONCLUSION

For the reasons set forth above, the Court grants the Plaintiffs’ Motion for Protective 

Order in part and denies it in part.

 

________________________________

 Virginia M. Kendall

 United States District Court Judge

 Northern District of Illinois

Dated: June 4, 2013