Mr. Smedstad: And do you recall - well, did Mr. Byers tell you that in
March of 2002 during a conversation with Mr. Kenig that Mr. Kenig
appeared to be conversant with the terms of the Ford lease?
Mr. Statman: Objection, leading.
Mr. Smedstad: It doesn’t suggest an answer. Go ahead and answer.
Mr. Geittman: Yes.
(Fifth Third’s Motion to Compel, Ex. B, Dep. of Geittman, at 306-07). Thereafter, Fifth
Third’s counsel, Mr. Statman, cross-examined Mr. Geittman regarding the conversation,

and Mr. Smedstad interposed an objection based on attorney-client privilege:

Mr. Statman: Now, when you were talking to Mr. Byers about all these
things getting prepared for today, was your counsel present?

Mr. Geittman: Yes.

Mr. Statman: What else did the three of you talk about together?
Mr. Smedstad: I’m going to instruct him not to answer.

Mr. Statman: You waived that.

Mr. Smedstad: I represent Mr. Byers. I represent the witness.

Mr. Statman: And you asked what conversations occurred between he and
Byers in your presence during the preparation for this deposition.

Mr. Smedstad: That’s fine.
Mr. Statman: And that would be a waiver.
(Fifth Third’s Motion to Compel, Ex. B, Dep. of Geittman, at 325). Mr. Smedstad then

allowed that “he would be happy” to let Mr. Geittman testify as to his conversation with

4


Obviously, discussions such as the one at issue here are going to occur in the course
of preparing a Rule 30(b)(6) deponent. PPM Finance, Inc. v. Norandal USA, Inc., 297
F.Supp.2d 1072, 1086 (N.D.IIl 2004) (collected cases on the obligation to prepare a
30(b)(6) deponent), The deposition preparation will likely involve research into areas the
deponent may not be familiar with, which might require conversations with both attorneys
and non-attorneys. The exchange between Mr. Smedstad and Mr. Geittman that occurred
at the deposition - the exchange which Fifth Third deems a waiver of the attorney-client
privilege - merely confirms that such a conversation occurred, and rather tersely suggests
what the topic of that discussion was. Finding a partial disclosure and resultant waiver
based on this exchange would be tantamount to finding a waiver based on the mention and
cursory description of a document in a privilege log.

There are times in depositions when zealousness - or perhaps over-zealousness -
on a client’s behalf can be counterproductive. In this case, zealousness appears to have
influenced Fifth Third’s counsel to refuse the opportunity to delve into subject matter at
Mr. Geittman’s deposition that he now seeks to explore in this motion. Review of the

deposition transcript shows that, on at least three occasions during the less than cordial

*...continued)
Third’s Motion to Compel, at 3). None of the this testimony discloses privileged
information, legal advice, or even specifically indicates that Mr. Smedstad participated ina
conversation with Mr. Byers and Mr. Geittman.

9


Mr. Smedstad: With respect to the conversations that I had - the three of
us had, Byers, me and [Geittman].

(Fifth Third’s Motion to Compel, Ex. B, Dep. of Geittman, at 327). Mr. Statman was still
not satisfied, however, and warned that his questioning would go past that subject as a
result of what he maintained had been a waiver of the attorney-client privilege. (Fifth
Third’s Motion to Compel, Ex. B, Dep. of Geittman, at 327). Mr. Smedstad refused to
allow that much latitude. The attorneys quarreled, the deposition broke down, and Mr.
Statman did, as he had threatened, “take [it] up with the judge.” (Fifth Third’s Motion to
Compel, Ex. B, Dep. of Geittman, at 328-29).

According to Fifth Third, Mr. Smedstad elicited and introduced certain allegedly
privileged conversations - “the Byers’ Conversations” - thereby effecting a “partial
waiver” of the attorney-client privilege. (Fifth Third’s Motion to Compel, at 7). Asa
result, Western argues it is entitled to explore the entire day of Mr. Geittman’s
preparation. More specifically, Fifth Third plans to elicit testimony regarding “the Byers’
Conversations,” including:

why they took place, how long they occurred, the purposes of the Byers’

Conversations, was Byers’s [sic] coached to say certain things during the

Byers Conversations; did counsel put words in Byers’ mouth, did Byers and

Geittman argue during the Byers’ Conversations, did counsel put words in

Geittman’s mouth, and did they agree on all subjects. It is also entitled to

explore what subsequent or prior role the Byers’ conversations played in Mr.

Mr. Smedstad’s preparation of Mr. Geittman. This would include a line of

inquiry into how long Mr. Byers was prepared, and what communications
took place between Mr. Geittman and Byers before and after the Byers



Mr. Byers. Mr. Statman, however, bluntly refused, and attempted to return to his line of
questioning:

Mr. Statman: No. I would like to know what you and Mr. Byers and Mr.
Smedstad talked about now that he’s waived the privilege.

(Fifth Third’s Motion to Compel, Ex. B, Dep. of Geittman, at 325-26). Mr. Smedstad.
again objected, but reiterated that Mr. Statman was free to question Mr. Geittman on
conversations he had with Mr. Byers. The exchange became a bit more heated, and Mr.
Statman indicated he would be perfectly willing to present the issue to the judge. Stopping
short of that for the moment, the two attorneys continued their debate, and it became clear
that they were uncertain just what the issue really was:

Mr. Smedstad: Just so the record is clear, you can ask him about his
conversations with Mr. Byers.

Mr. Statman: No. I’m interested since he’s waived - since he and Mr.

Byers waived that privilege by allowing that information discussed with you

together in a little three-way conversation prior to this deposition today.

I’m interested in the totality of the conversations and not just what he and

Mr. Byers talked about.
(Fifth Third’s Motion to Compel, Ex. B, Dep. of Geittman, at 326-27). When the
argument showed no sign of relenting, Mr. Smedstad, once more, attempted a
compromise:

Mr. Smedstad: (to Geittman) Go ahead and tell him what we talked about.

Mr. Statman: With you.



communication; if no privileged information is disclosed, there can be no “partial waiver.”
Lorenz v. Valley Forge Ins. Co., 815 F.2d 1095, 1099 (7" Cir. 1987). The problem with
Fifth Third’s argument is that it does not identify any privileged information that Western
supposedly disclosed.

The attorney-client privilege protects confidential communications made by a client
to his lawyer “[w]here legal advice of any kind is sought ... from a professional legal
advisor in his capacity as such.” Rehling v. City of Chicago, 207 F.3d 1009, 1019 (7" Cir.
2000) (citations omitted). The privilege generally attaches only to statements made by the
client, but also protects statements made by the lawyer to the client where those
communications rest on confidential information obtained from the client, or where those
communications would reveal the substance of a confidential communication by the client.
Id. Fifth Third contends that the disclosure of privileged information occurred when Mr.
Geittman indicated, in response to Mr. Smedstad’s questioning, that he had talked to Byers
about conversations Byers had with Kenig, and that Byers had told him that Kenig
appeared to be familiar with the Ford lease. In arguing that this constituted a disclosure
of privileged information, Fifth Third fails to identify what the privileged information is

or how the exchange in question reflects legal advice.?

The only other portions of Mr. Geittman’s testimony to which Fifth Third refers are where
Mr. Geittman states that he met with Mr. Smedstad the day before the deposition (Fifth
Third’s Motion to Compel, Ex. B, Dep. of Geittman, at 6-7), that he called Byers that day to
review Byers’ deposition (Jd., at 29), and that read Byers’ deposition. (Id., at 29) (Fifth

(continued...)


Mine Order Form (0697)

United States District Court, Northern District of I!linois

Name of Assigned Judge Blanche Manning Sitting Judge if Other Nan R. Nolan
‘ov Magistrate Judge than Assigned Judge
CASE NUMBER 02 C7315 DATE 11/10/2004

CASE
TITLE

Western United Life Assurance Co. vs. Fifth Third Bank, et al.

[In the fotiowing box (a) indicate the party filing the motion, e.g., plaintiff, delendant, 3rd party plaintiff, and (b) state brielly the nature
of the motion being presented. |

MOTION:

DOCKET ENTRY:

0 FRCP4(m)

(0) @ [Other docket entry]

(il) @f

© Local Rule 41.1

O FRCP41(a)(1)

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

a) oO Filed motion of [ use listing in “Motion” box above.]
(2) ia) Brief in support of motion due
(3) Oo Answer brief to motion due . Reply to answer brief due___
(4) oO Ruling/Hearing on at
6) a Status hearing{held/continued to] {set for/re-set for] on setfor_ at
(6) a) Pretrial conference(held/continued to] [set for/re-set for] on setfor_ at
(7) a Trial[set for/re-set for] on at
(8) a (Bench/Jury trial] [Hearing] held/continued to_ saat
a

This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
CO FRCP41(a)(2).

For the reasons stated in the attached Memorandum Opinion and Order,
defendant’s motion to compel is denied.

No notices required, advised in open court

No notices required.

oY | Notices mailed by judge's staft

Notified counse! by telephone,

Docketing to mail notices

Mail AQ 450 form.

Copy (o judge/magistrare judge.

courtroom:
hmb depuly’s

f initials

Ha (ACH OBZ

Document

‘ Number

number of notices

NOV 1 2 2004

diate dockered

1710/2008

Gate mailed notice

tb

an 3
Datestirhé réceived in
central Clerk's Office

vouuling depaty initials



conversations between Mr. Geittman and Byers, or “conversations . . . the three of [them]

had, Byers, [Mr. Smedstad] and the witness.”

Unfortunately, Mr. Statman was not satisfied; he wanted carte blanche on any
communications that occurred the entire day Mr. Smedstad spent preparing Mr. Geittman
for his deposition. The court does not imagine that Mr. Smedstad, in the wake of his offer
to Mr. Statman, would have allowed Mr. Statman to interrogate Mr. Geittman unabated
by objection. Certainly, some of the communications that day were privileged and some
were not, and a blanket claim of attorney-client privilege covering the entire day would be
inappropriate. U.S. v. Lawless, 709 F.2d 485, 487 (7" Cir 1983) (claim of privilege must
be made and sustained on a question-by-question basis; a blanket claim of privilege is
unacceptable). But Fifth Third’s version of what occurred - a blanket waiver as a result
of a reference to a conversation in which an attorney participated - is similarly
inappropriate where no privileged communications were disclosed. Mr. Statman had quite
a bit of latitude at the deposition to explore the topics in which he now expresses so dire
an interest. At the deposition, he might have dealt with specific objections to specific
questions as they arose. Instead, he demanded, as he requests now, an unbridled
interrogation of Mr. Geittman as to anything that might have discussed, including legal
advice, on the day before the deposition. The court simply cannot grant such a request

under these circumstances.

11


exchange between Mr. Statman and Mr. Smedstad, Mr. Smedstad invited Mr. Statman to
pursue his line of questioning:

Mr. Smedstad: I’m happy to let him talk to you about what he talked to Mr.
Byers about.

Mr. Statman: No. I would like to know what you and Mr. Byers talked
about now that he’s waived the privilege.

(Fifth Third’s Motion to Compel, Ex. B, Dep. of Geittman. at 325-26).

Mr. Smedstad: Just so the record is clear, you can ask him about his
conversations with Mr. Byers.

Mr. Statman: No. . . . I’m interested in the totality of the conversations and
not just what he and Mr. Byers talked about
* * *

Mr. Smedstad: Go ahead and tell him what we talked about.
Mr. Statman: With you.

Mr. Smedstad: With respect to the conversations that I had - the three of
us had, Byers, me, and the witness.

Mr. Statman: Well, it’s going to go on from there because you waived that
by bringing out this testimony.

* * *
My position is that by you participating in the conversations between these
two gentlemen, Byers and Geittman, and then having that testimony brought
out in your own examination of Mr. Geittman today, you waived the
privilege as it relates to the entirety of your day yesterday.

(Fifth Third’s Motion to Compel, Ex. B, Dep. of Geittman, at 326-28). Thus, at the

Geittman deposition, Mr. Smedstad did not block Mr. Statman’s inquiry into either

10



Conversations occurred, in light of the subjects covered in the Byers
Conversations.

(Fifth Third’s Motion to Compel, at 8-9). Therefore, Fifth Third seeks an order
compelling Mr. Geittman to re-appear for his deposition and answer all questions related
in any way to: “the Byers’ Conversations,” communications between Mr. Smedstad and
Mr. Geittman on August 16, 2003 in which any subject raised in “the Byers’
Conversations” was discussed, Mr. Geittman’s recollections of communications between

Mr. Smedstad and Mr. Byers during “the Byers’ Conversations,” and what role “the
Byers’ Conversations” played in preparing Mr. Geittman for his August 17, 2004
deposition.
Il. ANALYSIS

Relying on Graco Children's Products, Inc. v. Dressler, Goldsmith, Shore &
Milnamow, Ltd., No. 95 C 1303, 1995 WL 360590, (N.D.Ill. June 13, 1995), Fifth Third
would argues that Western waived the attorney-client through “partial disclosure” or
“partial waiver.” (Fifth Third’s Motion to Compel, at 7-8). “Partial waiver” may be
found where disclosure of a part of a privileged document or set of such documents - or,
as here, part of a privileged communication - is argued to waive privilege in the rest of
it. Dellwood Farms, Inc. v. Cargill, Inc., 128 F.3d 1122, 1127 (7" Cir. 1997) (citing

Westinghouse Electric Corp. v. Republic of the Philippines, 951 F.2d 1414, 1423 n.7 (3

Cir. 1991)). In the first instance, then, there must be a disclosure of part of a privileged


Western’s due diligence and underwriting in connection with that loan. As part of his
investigation into these subjects, Mr. Geittman testified that he reviewed the transcript of
John Byers’ deposition and spoke with him over the phone. Mr. Byers is a Western
employee who was a loan officer on the loan and the initial contact in the loan process.
During the deposition, Western’s attorney, Adam Smedstad, instructed Mr. Geittman not
to testify as to a conversation among himself, Mr. Smedstad, and Mr. Byers. Mr.
Smedstad asserted that those communications were protected by the attorney-client
privilege. Fifth Third’s counsel, Alan Statman, took issue with this and contended that the
privilege had been waived because Mr. Smedstad had introduced testimony regarding those
conversations during his examination of Mr. Geittman. The attorneys were unable
to resolve the issue without assistance, and this motion ensued.

The parties agree that the discussion among Mr. Smedstad, Mr. Geittman, and Mr,
Byers in preparation for Mr. Geittman’s deposition was subject to the attorney-client
privilege. (Fifth Third’s Motion to Compel, at 3; Western’s Opposition to Fifth Third’s
Motion to Compel, at 5). The parties disagree as to whether the following exchange
between Mr. Smedstad and Mr. Geittman waived the privilege as to those communications:

Mr. Smedstad: Did you talk to Mr. Byers about conversations he had with
Mr. Kenig and Mr. Barker?

Mr. Geittman: Yes


disavowed any interest in the project. Fifth Third learned of this trouble in the summer
of 2001 and, in order to avoid losing a substantial portion of the value of the loan, Fifth
Third purportedly devised an exit strategy involving Western. According to Western, in
early 2002, Serfling and Fifth Third, through its attorney, Scott Kenig, made certain
misrepresentations to Western which induced it to lend the Serfin Trust - another co-
defendant - nearly $12 million. Among these misrepresentations was the existence of
a lease agreement from Ford, which was apparently a forgery. Western filed suit in
October of 2002, charging both Fifth Third and Serfling with various fraudulent
misrepresentations in connection with the loan.

This discovery dispute concerns the Rule 30(b)(6)” deposition of Dan Geittman on
August 17, 2004. Anex-employee of Western who was involved in underwriting the loan,
Mr, Geittman testified as a corporate representative regarding various subjects including

Western’s belief that Fifth Third defrauded it in connection with the Serfin loan, and

2 Fed.R.Civ.P. 30(b)(6) provides:

A party may in the party's notice and in a subpoena name as the deponent a public or
private corporation or a partnership or association or governmental agency and
describe with reasonable particularity the matters on which examination is requested.
In that event, the organization so named shall designate one or more officers,
directors, or managing agents, or other persons who consent to testify on its behalf,
and may set forth, for each person designated, the matters on which the person will
testify. A subpoena shall advise a non-party organization of its duty to make such a
designation. The persons so designated shall testify as to matters known or
reasonably available to the organization. This subdivision (b)(6) does not preclude
taking a deposition by any other procedure authorized in these mules.



DOCKETED

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINors NOV 1 2 2004
EASTERN DIVISION

WESTERN UNITED LIFE ASSURANCE )
COMPANY, )
)
Plaintiff, )
)

vs. ) No. 02€ 7315
)

FIFTH THIRD BANK; SERFIN TRUST, LLC; ) Nan R. Nolan,

and SCOTT SERFLING, ) Magistrate Judge

)
Defendants. )

MEMORANDUM OPINION AND ORDER

Defendant Fifth Third Bank (“Fifth Third”) moves this court to compel Dan
Geittman to re-appear for his deposition and provide sworn answers to certain questions
he previously refused to answer on August 17, 2004.

I. BACKGROUND

This case concerns the financial fallout from a failed plan to develop a Ford
dealership in Gurnee, Illinois.' According to the allegations of Western United Life
Insurance Company (“Western”), Fifth Third was the original source of financing on the
project in 2000, and loaned Scott Serfling - a co-defendant - and others over $10

million. Serfling allegedly diverted the proceeds of that loan, however, and Ford

The court draws its narrative of the background of this motion from the allegations in
Western’s Third Amended Complaint. The court accepts these allegations only for the
limited purposes of ruling on this motion, and does so advisedly insofar as Western’s three
previous complaints have been dismissed, in whole or in part, due to various defects.

74


III. CONCLUSION

For the foregoing reasons, the defendant’s motion to compel is denied.

tun R het

ENTERED:

NAN R. NOLAN
U.S. MAGISTRATE JUDGE

DATE:
i- 10-04

12