THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

JACK BEAM and RENEE BEAM, 

 Plaintiffs, 

 v. 

MATTHEW S. PETERSEN, FEDERAL 

ELECTION COMMISSION CHAIRMAN, 

 Defendant. 

Civil No. 07cv1227 

Judge Rebecca R. Pallmeyer 

Magistrate Judge Cole 

DEFENDANT’S REPLY 

MEMORANDUM IN SUPPORT 

OF ITS MOTION IN LIMINE 

DEFENDANT FEDERAL ELECTION COMMISSION’S REPLY 

MEMORANDUM IN SUPPORT OF ITS MOTION IN LIMINE 

 The Federal Election Commission (“FEC” or “Commission”) makes three basic points in 

this reply in support of the FEC’s motion in limine: (1) plaintiffs’ opposition brief itself shows 

the need for an order clearly defining what evidence is relevant and otherwise admissible 

regarding plaintiffs’ claim under the Right to Financial Privacy Act (“RFPA”), 12 U.S.C. § 3401 

et seq., to prevent overreaching and ensure an efficient trial, regardless of the absence of a jury; 

(2) plaintiffs have failed to show that the Court should reverse its prior ruling that certain 

documents the Commission has withheld are privileged; and (3) plaintiffs fail even to address the 

FEC’s request that the Court exclude evidence that plaintiffs suffered actual damages beyond 

any pecuniary harm caused by the alleged RFPA violation. 

I. AN ORDER DEFINING WHAT EVIDENCE IS RELEVANT AND 

NON-PRIVILEGED WILL HELP ENSURE AN EFFICIENT TRIAL 

Plaintiffs’ opposition shows that they have no intention of limiting themselves to 

evidence relevant to their one remaining claim under the RFPA. Plaintiffs admit that they plan 

Case 1:07-cv-01227 Document 193 Filed 07/22/10 Page 1 of 8
to elicit “testimony concerning the Justice Department’s investigating and ultimately 

unsuccessful prosecution of Mr. Geoffrey Fieger” (Pls.’ Resp. in Opp’n to Def.’s Mot. in Limine

(“Pls.’ Resp.”) at 2 (Doc. #192)), which has no relevance to plaintiffs’ RFPA claim. Plaintiffs 

also repeatedly refer to their pending “claims” in the plural (id. at 2-3), and assert that “whether 

Defendant FEC illegally obtained . . . Plaintiffs’ bank records . . . from the Justice Department” 

is “one of the claims before this Court,” (id. at 3 (emphasis added)). To the contrary, this is the 

only claim before the Court. Plaintiffs’ continued refusal to recognize this — 20 months after 

the last of their other claims was dismissed — shows why an order granting the FEC’s motion is 

necessary, even though this will be a bench trial. Without such an order, plaintiffs will continue 

their effort to re-litigate their rejected claims and turn this narrow trial into a wide-ranging attack 

on the Department of Justice’s (“DOJ”) past enforcement of federal campaign finance law. An 

order in limine will help ensure an efficient trial that will conserve the time of the Court, the 

witnesses, and the parties by focusing solely on plaintiffs’ RFPA claim. 

 A timely order defining the scope of permissible inquiry will help to focus this case on 

what matters both at trial and before trial. Although plaintiffs’ overall view of what evidence is 

relevant to their RFPA claim is far too broad, they do propose at one point a list of topics for 

their potential cross examination of DOJ trial attorney M. Kendall Day that could be refined in a 

manner consistent with the Commission’s proposed order. (See Pls.’ Resp. at 4 (Doc. #192).) 

The Commission would not object to an order that limited Mr. Day’s testimony to the following 

topics, to the extent they can be addressed without breaching grand jury secrecy or other 

privileges: 

• Mr. Day’s knowledge of plaintiffs’ financial records; 

• Mr. Day’s communications with FEC employees about plaintiffs; 

 

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Case 1:07-cv-01227 Document 193 Filed 07/22/10 Page 2 of 8
• Mr. Day’s knowledge of the categories of information shared with 

FEC employees; and 

• Mr. Day’s knowledge of information about plaintiffs’ financial records 

shared with FEC employees. 

 Plaintiffs’ discovery requests have typically sought a far broader range of information 

than what is covered by these topics, and in part for that reason, DOJ rejected plaintiffs’ 

November 2008 request to depose Mr. Day, citing its Touhy regulations. (FEC’s Mem. in Supp’t 

of its Mot. in Limine (“FEC Mem.”), Exh. C (Doc. #185-3).) Absent a ruling in limine that 

properly limits the scope of Mr. Day’s testimony to non-privileged topics relevant to the RFPA 

claim, it is not clear that DOJ will change its decision and allow Mr. Day to testify. In addition, 

a ruling from the Court now would provide guidance to the parties should plaintiffs depose Mr. 

Day in advance of trial, as they appear to wish to do. (See Final Pretrial Order ¶ (2)(d) (Doc. 

#175).) 

In their opposition, plaintiffs seem to claim that DOJ’s criminal prosecution of Mr. Fieger 

and what plaintiffs describe as “dozens” of other persons is relevant here, despite conceding that 

such evidence is “minor to the claim[] before this Court.” (Pls.’ Resp. at 3 (Doc. #192).) 

However, the relevance of whether DOJ transferred plaintiffs’ private financial records to the 

FEC during the course of that investigation does not make anything else about the investigation 

relevant. Plaintiffs fail to explain how the actual evidence they seek to admit, such as the 

acquittal of Mr. Fieger, makes it more or less probable that the FEC violated the RFPA.1

 

 

1

 Plaintiffs do not appear to dispute that it would be improper to admit evidence breaching 

the secrecy of the Fieger grand jury investigation (see FEC Mem. at 6-7 (Doc. #185)), yet 

plaintiffs’ brief suggests they may seek to pursue such evidence, (Pls.’ Resp. at 2 (“[T]he Court 

will hear testimony concerning [DOJ’s] investigating . . . of Mr. Geoffrey Fieger.”) (Doc. #192)). 

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Case 1:07-cv-01227 Document 193 Filed 07/22/10 Page 3 of 8
The only evidence plaintiffs specifically address in their opposition are the letters they 

wrote to the FEC in October 2006 disputing that they served as straw donors for federal 

campaign contributions. (Pls.’ Resp. at 2-3 (Doc. #192); FEC Mem., Exhs. A, B (Doc. ##185-1, 

185-2).) Plaintiffs assert that these letters are relevant because during an investigation the FEC 

allegedly “must generally obtain and review bank records to determine whether an individual 

serves as a ‘conduit’ for campaign contributions.” (Pls.’ Resp. at 2 (emphasis added) (Doc. 

#192).) That is incorrect. As this Court has recognized, this information could be obtained from 

other sources, such as “the Fieger law firm’s financial records.” (Mem. Op. and Order dated 

Mar. 7, 2008 at 9-10 (Doc. #90).) The FEC stated that it relied upon newspaper articles in 

finding that there was reason to believe plaintiffs were reimbursed.2

 The Commission later 

decided to take no further action and closed its investigation as to plaintiffs.3 

Limiting admissible evidence as the FEC has requested will promote an efficient trial that 

focuses on plaintiffs’ RFPA claim, rather than broad, irrelevant issues about the Fieger 

investigations. 

II. PLAINTIFFS FAIL TO SHOW THAT THE COURT SHOULD REVERSE ITS 

CORRECT PRIOR RULING THAT THE COMMISSION DOCUMENTS 

PLAINTIFFS SEEK ARE PROTECTED FROM DISCLOSURE 

 Plaintiffs seek to introduce certain documents at trial, despite the fact that this Court, after 

an in camera review, found that the documents are protected by the “‘attorney work product’” 

 

2

 (FEC, Factual and Legal Analysis, Respondent Jack Beam, MUR 5818 at 2 (Sept. 26, 

2006) (Exh. A); FEC, Factual and Legal Analysis, Respondent Renee Beam, MUR 5818 at 2 

(Sept. 26, 2006) (Exh. B).) In accord with 2 U.S.C. § 437g(a)(2), the Commission sent these 

factual and legal analyses to plaintiffs to explain why it found there was reason to believe they 

violated the Federal Election Campaign Act. The Commission made these documents public 

after closing its investigation in October 2009. 

3

 (Letter from FEC to Jack Beam (Nov. 5, 2009) (Exh. C); Letter from FEC to Renee 

Beam (Nov. 5, 2009) (Exh. D).) 

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Case 1:07-cv-01227 Document 193 Filed 07/22/10 Page 4 of 8
and “‘law enforcement privilege[s]’” and contain “no evidence of any shared financial data.” 

(Minute Order, dated July 7, 2009 (Doc. #141).) 4

 Plaintiffs rely on the fact that the 

Commission’s enforcement action has ended, but the Court’s ruling remains correct. 

First, even though the Court found that the documents contain “no evidence of any shared 

financial data,” plaintiffs nevertheless argue that the documents should be disclosed because they 

are “directly relevant (at least circumstantial evidence) as to the ultimate fact questions to be 

decided.” (Pls.’ Resp. at 3-5 (Doc. #192).) But even if the documents were relevant, they would 

still be privileged, and privilege does not give way merely because a protected communication is 

relevant (directly or circumstantially) to a plaintiff’s case. See United States v. Farley, 11 F.3d 

1385, 1389-90 (7th Cir. 1993) (holding that “relevance alone is an insufficient reason for 

breaching the deliberative process privilege” and the work product privilege). 

 Second, plaintiffs incorrectly claim that because “the FEC’s civil enforcement action is 

now concluded, it has no claim to ‘law enforcement’ privilege since the matter has resolved.” 

(Pls.’ Mot. for Relief from J. and/or Order ¶ 11 (Doc. #187).) But as the Commission explained 

(see FEC Mem. at 14 (Doc. #185)), “[a]n investigation . . . need not be ongoing for the law 

enforcement privilege to apply as the ability of a law enforcement agency to conduct future 

investigations may be seriously impaired if certain information is revealed to the public,” see In 

 

4

 The Final Pretrial Order in this case states that plaintiffs may attempt to introduce 69 

pages of documents that the FEC has withheld on privilege grounds, and which are marked with 

Bates numbers 45-51, 52-57, 58-59, 60-63, 64-65, 162-63, 164-69, 177, 180-81, 193, 194, 196-

97, 206-09, 221-24, 239-44, and 311. (Final Pretrial Order ¶ 2(c)(5) (Doc. #175); FEC Privilege 

Log, dated Jan. 28, 2009 (Doc. #130-4).) Plaintiffs’ opposition to the FEC’s motion in limine

and their separate, pending motion for relief from the Court’s July 7, 2009 ruling request 

disclosure of a 20-page subset of these 69 pages, which are marked with Bates numbers 58-59, 

61-63, 169, 180-81, 193, 206-09, 221-24, 239-41. (Pls.’ Resp. at 3-4 (Doc. #192); Pls.’ Mot. for 

Relief from J. and/or Order at 3 (Doc. #187).) 

5 

Case 1:07-cv-01227 Document 193 Filed 07/22/10 Page 5 of 8
re The City of New York, 607 F.3d 923, 944 (2d Cir. 2010) (Cabranes, J.) (internal quotation 

marks omitted). 

 Finally, even if the law enforcement privilege no longer applied, the documents would 

remain protected by the work-product doctrine. Plaintiffs appear to concede that any workproduct protection the documents had would remain, since they do not argue to the contrary, but 

merely claim that “it is unclear which objection applied was sustained as to which documents 

that were reviewed by the Court.” (Pls.’ Mot. for Relief from J. and/or Order ¶ 6 (Doc. #187).) 

In fact, the Court’s ruling is not unclear. The Court “sustain[ed] the FEC’s ‘attorney work 

product’ and ‘law enforcement privilege’ objection” to the production of the documents at issue. 

(Minute Order, dated July 7, 2009 (Doc. #141).) The Court was aware that the FEC had objected 

to disclosure of all the documents on both grounds, since plaintiffs attached a copy of the FEC’s 

privilege log to their motion to compel. (Pls.’ Mot. to Compel Produc. of Docs. and for in 

Camera Inspection, Exh. C at 1-2, 6-10 (FEC Privilege Log) (Doc. #130-45

)). But the Court’s 

order contains no limit on the scope of the work-product ruling. 

III. PLAINTIFFS HAVE NOT RESPONDED TO THE FEC’S ARGUMENT THAT 

THE COURT SHOULD EXCLUDE EVIDENCE OF ACTUAL DAMAGES 

BEYOND ANY PECUNIARY HARM CAUSED BY THE ALLEGED RFPA 

VIOLATION 

 In its opening brief, the Commission requested an order excluding any evidence that 

plaintiffs suffered actual damages resulting from DOJ’s or the FEC’s campaign finance 

investigations, as opposed to the alleged RFPA violation, as well as any damages resulting from 

any alleged non-pecuniary harm, such as emotional distress. (FEC Mem. at 9-13 (Doc. #185).) 

 

5

 In its opening brief, the FEC mistakenly stated that its privilege log was located at docket 

number 130-2 instead of 130-4. (See FEC Mem. at 13-14 (Doc. #185).) We apologize for the 

error. 

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Case 1:07-cv-01227 Document 193 Filed 07/22/10 Page 6 of 8
Plaintiffs do not respond to these arguments, so any objection should be deemed waived. See, 

e.g., In re H & R Block Mortg. Corp., Prescreening Litig., No. 2:06-MD-230 (MDL 1767), 2007 

WL 325351, at *4 n.5 (N.D. Ind. Jan. 30, 2007) (“Plaintiff[’s] . . . failure to address in his 

response brief Defendant[’s] . . . relevance argument . . . waives any objection as to that 

argument.”) (citing REP MCR Realty, L.L.C. v. Lynch, 363 F. Supp. 2d 984, 1015 (N.D. Ill. 

2005) (holding that a plaintiff waives an argument he fails to raise in opposition to a motion for 

sanctions)). 

CONCLUSION

 For the foregoing reasons, the Commission respectfully requests that the Court issue an 

order excluding from trial the categories of evidence described in the Commission’s opening 

brief and in the proposed order submitted to the Court.

Respectfully submitted, 

 Thomasenia P. Duncan 

General Counsel 

David Kolker 

Associate General Counsel 

Harry J. Summers 

Assistant General Counsel 

Benjamin A. Streeter III 

Attorney 

7 

Case 1:07-cv-01227 Document 193 Filed 07/22/10 Page 7 of 8
8 

/s/ Holly J. Baker 

Holly J. Baker 

Attorney 

July 22, 2010 FOR THE DEFENDANT 

FEDERAL ELECTION COMMISSION 

AND ITS CHAIRMAN 

999 E Street, N.W. 

Washington, D.C. 20463 

(202) 694-1650 

Case 1:07-cv-01227 Document 193 Filed 07/22/10 Page 8 of 8