No. 6's answer is sufficient, and his objection is denied as moot.

Widman objects to interrogatory No. 7, which seeks the case number, date, court, court
location, and the respective parties for all actions against Widman in attomey malpractice.
Widman responds that the interrogatory is overly broad, unduly burdensome, and not reasonably
calculated to lead to admissible evidence. Widman’s objection is overruled.

Widman objects to interrogatory No. 8, which secks the identity of all private arbitrations
in which Widman appeared or acted as counsel, advocate, party, witness or arbitrator. Widman
responds that the interrogatory is overly broad, unduly burdensome, and not reasonably
calculated to lead to admissible evidence. Widman’s objection is overruled.

Widman objects to interrogatorics Nos. 13 and 14, which ask for Widman to identify the
specific acts that form the bases of Widman’s contention, if any, that Reiff failed to mitigate
damages or was contributorily negligent. Without waiving his objection, Widman identifies
examples of Reiff’s failure to mitigate damages and contributory negligence. Reiff argues that
Widman’s response is not complete because Widman stated that the interrogatories seek
information that is likely to become known through discovery and expert witnesses. However,
Widman is required to update his answers pursuant to Federal Rules of Civil Procedure 26(e) as
such new information becomes known. Accordingly, Widman’s responses are sufficient at this
stage of the litigation, and the objection is sustained.

In response to Plaintiff's Request to Produce No. 3, which seeks all documents relating to
the underlying litigation, Widman identified two documents in a privilege log that it has not
produced. The documents listed are Widman’s internal information sheet and an internal

memorandum from Widman to the management committee regarding an unpaid bill. Widman


dismissed as to Widman.

Based on the above, Defendants’ Motion to Dismiss is granted in part and denied in part.
Count Il] is dismissed as to Defendants Much Shelist Freed Denenberg, Ament & Rubenstein,
P.C. and Edward D. Shapiro.

Plaintiffs Motion to Compel Compliance with Discovery

Reiff seeks to have Widman ordered to answer certain interrogatories and produce all
documents responsive {to Plaintiff's Request to Produce.

“Parties may obtain discovery regarding any matter, not privileged, that is relevant to the
claim.... Relevant information need not be admissible at trial if the discovery appears to be
reasonably calculated to lead to the discovery of admissible evidence...” Fed. R. Civ. P.
26(b)(1).

Widman objects to interrogatory No. 3, which seeks a list of “cases that he appeared as
counsel for any party in any state or federal court proceeding relating to arbitrators.” Widman
objects on grounds of the intcrrogatory being overly broad, unduly burdensome, and not
reasonably calculated to lead to admissible evidence. Widman partially answers the
interrogatory, indicating that he has appeared in state or federal court in no more than five cases
relating to arbitrations. Based on the limited number of cases applicable to the interrogatory,
Widman’s objection is overruled.

Widman objects to interrogatory No. 6, which seeks a list of seminars, conferences, and
other continuing education Widman has attended regarding arbitration. While Widman objects
to the interrogatory, he did refer Reiff to documents in his response to the Request to Produce

which identify courses Widman has attended regarding arbitration. Accordingly, intcrrogatory



argues that these two documents are protected by the attorney work-product privilege. Widman’s
objection is overruled. The work-product privilege would not apply to documents that Reiff now
seeks that were prepared by his attorney on his behalf in the previous case.

Widman objects to Request to Produce No. 4, which seeks calendars or schedules kept by
Widman from 1997 through 1999. Widman argues that the requested documents are not
relevant, not reasonably calculated to lead to admissible evidence, and overly burdensome.
Widman’s objection is overruled.

Widman objects to Request to Produce Nos. 5 and 6, which scck all arbitrator forms
submitted by Widman to the National Futures Association, the National Association of Securities
Dealers, and any other arbitration forums from 1990 through the present, and all applications to
be an arbitrator Widman submitted to any arbitration form. Widman argues that these requests
are overly broad, unduly burdensome, and not reasonably calculated to lead to admissible
evidence. Widman refers Reiff to documents submitted by the National Futures Association
which contain the requested information as to that forum. Widman’s objection is overruled.

Widman also objects to Request to Produce No. 7, which seeks Widman’s resumes from
1996 through present. Not withstanding the objection, Widman provided Reiff with his current
resume, a biography from Martindale-Hubbell and referred Reiff to resumes from 1986, 1992,
and 1999, Widman’s response is sufficient, and the objection is denied as moot.

Based on the above, Reiff’s Motion to Compel Compliance with Discovery is granted in
part and denied in part. Widman is ordered to answer the disputed interrogatories and produce
the disputed documents consistent with the above findings within seven days of this order.

For the reasons stated above, Defendants’ Motion to Dismiss is granted in part and denied

wa



er

Minute Order Form (06/97)

United States District Court, Northern District of Minois

Name of Assigned Judge sting Judge if Other
nee Magistrate dee John W. Darrah “han Antgued Suge
CASE NUMBER 03 C 1939 DATE 10/22/2003
CASE Reiff vs. Much Shelist Freed
TITLE

{In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nuture:
of the motion being presented}

MOTION:

DOCKET ENTRY;

(a0) a Filed motion of [ use listing in “Motion” box above.]

(2) a Brief in support of motion due

Q@) o Answer bricfto motiondue___—_, Reply to answer briefdue___.

(4) o Ruling/Hearing on set for at

(5) ao Status hearing(held/continued to] [sct for/te-sct for] on set for at

(6) qo Pretrial conference[held/continued to) (set for/re-set for] on __—_—_sset for ato.

(7) o Trial[set for/re-set for] on at

(8) o (Bench/Jury trial] [Hearing] held/continued to at

(9) qo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OFRCP4(m) CiLocalRule 41.1 OFRCP41(a)(1) OFRCP41(a)(2).

qo) =@ [Other docket entry) Status hearing held and continued to 11/12/03 at 9:00 a.m. For the reasons

stated in the attached memorandum opinion and order, defendant’s motion to dismiss [13-1] and
plaintiff’s motion to compel compliance with discovery [18-1] are granted in part and denied in part.
Enter Memorandum Opinion and Order.

‘No notices required, advised in open court,

ay
x

[For further detail see order attached to the original minute order,]

No notices required. number of notices,

OCT 2 3 2003

Notices mailed by judge’s staff.

Notified counsel by telephone,

Docketing to mail notices.

Mail AO 450 form,

AUAOD E

Copy to judge/magistrate judge.

courtroom
deputy’s
initials

MF

Date/time received in
central Clerk's Office:

mailing deputy initiate



in part. Count TII is dismissed as to Defendants Much Shelist Freed Denenberg, Ament &
Rubenstein, P.C. and Edward D. Shapiro. Plaintiff's Motion to Compel Compliance with

Discovery is granted in part and denied in part.

Dated: Ge bebee 2 Zz, L00s

itéd States District Judge



UNITED STATES DISTRICT COURT aera
NORTHERN DISTRICT OF ILLINOIS r aa
EASTERN DIVISION

ae ay

oc da 03

J. DONALD REIFF,

Plaintiff,
No. 03 C 1939
v.

Judge John W. Darrah
MUCH SHELIST FREED DENENBERG, AMENY &
RUBENSTEIN, P.C.; STUART WIDMAN; and
EDWARD SHAPIRO;

Detendants.

weeweveveveevevews

MEMORANDUM OPINION AND ORDER

Plaintiff, J. Donald Reiff, filed suit against Defendants, alleging professional negligence
(Count 1), breach of contract (Count 11), and breach of fiduciary duty (Count Ill). Presently
pending before the Court is Defendants’ Motion to Dismiss and Plaintiff's Motion to Compel
Compliance with Discovery.

A reading of Plaintiff's Amended Complaint supports the following summary of the
alleged operative conduct of the parties.

In September 1997, Reiff was served with a complaint brought in Cook County Circuit
Court seeking vacatur of an arbitration award in his favor in the amount of $244,060 plus
interest. Subsequently, Reiff retained Defendants to represent him in a legal matter pending in
this matter. The Cook County Circuit Court vacated the arbitration award, and this judgment
was subsequently affirmed by the Illinois Appellate Court. The Illinois Appellate Court found
that Reiff failed to submit non-hearsay and otherwise proper and sufficient evidence to rebut a

presumption, under the Tllinois Arbitration Act, of undue influence of an arbitrator in the lower

BA

court.



Defendants’ Motion to Dismiss

Defendants argue that Plaintiffs Amended Complaint should be dismissed because the
three claims are duplicative.

In Llinois, a plaintiff may maintain a complaint against a lawyer for malpractice in cither
tort or contract, and recovery may be sought in the alternative, See Collins v. Reynard, 154 Tl.
2d 48, 50 (1993); Pavilion Hotel Corp, v. Koch, 2000 WL 51817 (N.D. Tll. Jan. 14, 2000)
(Pavilion). However, if a breach of fiduciary duty claim is based on the same operative facts as a
legal malpractice claim, and results in the same injury, the latter claim should be dismissed as
duplicative. See Fabricare Equip. Credit Corp. v. Bell, Boyd & Lloyd, 328 Ul. App. 3d 784, 791
(2002); McDermott, Will & Emery v. Ogle, 2001 WL 145696 (N.D. Ill. Nov. 15, 2001).

In the instant case, Plaintiff's Amended Complaint includes a claim for legal malpractice,
Count J and, in the alternative, breach of contract, Count II. While the claims are derived from
the same facts and have overlapping factual allegations, Count Il clearly states that it is pled in
the alternative. Count II also specifically pleads that it is based on the contract between Reiff and
the Defendants and that the Defendants breached their contractual duties, Accordingly, Count II
is not dismissed. See Pavilion, 2000 WL 51817 at * 2 (denying dismissal of plaintiff's contract
and negligence claim),

As to Plaintiffs breach of fiduciary claim, Count Ill, with the exception of Defendant
Stuart Widman, the same operative facts support Reiff’s legal practice and breach of fiduciary
claims. Accordingly, Count IIL is dismissed as to Defendants Much Shelist Freed Denenberg,
Ament & Rubenstein, P.C. and Edward D. Shapiro. However, Count IIT contains a new

allegation against Widman that is not duplicative of Count L Accordingly, Count TIL is not