correct ruling in this matter. Defendants’ objection is denicd. In addition, pursuant to Fed. R.
Civ. P. 26(g)(3), the court finds that defendants’ counsel, Mark Smolens, has violated his
obligations under Fed. R, Civ. P. 26(g)(2) in filing this frivolous objection, and orders him (not
defendants) to pay plaintiff his reasonable attorney’s fees incurred in connection with responding
to this objection. The partics are directed to follow Local Rule 54.3 in connection with the award
of attorney’s fees, and shall present the appropriate papers to Magistrate Judge Keys ona

schedule to be set by him.

ENTER: February 27, 2003

Robert W. Gettleman
United States District Judge



impression that the answer was negative by testifying that he no longer wanted to be a police
officer. Magistrate Judge Keys, after revicwing the material submitted both in the record and in
camera, concluded that the separation documents that defendants had refused to produce (in fact,
defendants did not disclose their existence until the deposition itself, although defense counsel
knew about them prior to the deposition) were relevant to McGannon’s credibility. Magistrate
Judge Keys’s observation in this regard was clearly correct.

Morcover, defendants’ continued arguments about whether these documents could ever
be admitted at trial totally misses the mark. Fed. R. Civ. P. 26(b)(1) expressly slates that
discoverable information “need not be admissible at the trial if the discovery appears reasonably
calculated to lead to the discovery of admissible evidence.” McGannon’s real reason for leaving
his employment with the Village appears to be more related to his disciplinary problems
regarding the juvenile matter’ than it does to any desire to change careers from being a police
officer to being an insurance adjuster. Plaintiff is clearly entitled to impeach McGannon’s
credibility by properly using this information at trial, regardless of the admissibility of these
documents.

Defendants’ counsel has wasted cnough of this court’s and the magistrate judge’s time
with respect to this matter. Mr. Smolens improperly instructed his witness not to answer
questions at the deposition, improperly sought to bar production of clearly relevant material and,

worst of all, has pursued a frivolous and disrespectful objection to the magistrate judge’s clearly

Mndeed, there may be reason to believe that other misconduct by McGannon contributed
to his departure. The separation agreement provides, in part, that “any pending investigations,
charges, allegations or disciplinary actions now being conducted by the [Village] . . . shall ccasc”
and be kept confidential, and that the Village will not pursue “any criminal, civil, or
administrative litigation arising out of pending charges filed against ... McGannon.”

3



‘Minute Order Form (06097)
r (owu97)

United States District Court, Northern District of Llinois

Name of Sitting Judge if Other
Name ofauiened ize | Robert W. Gettleman | Siting tuteitoner
CASE NUMBER 01 C 5421 DATE Feb, 27, 2003
CASE Daniel Jockell v Village of Lake Zurich
TITLE

[In the following box (a) indicate the party (iling the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
of the motion being prescnted.]

MOTION:

DOCKET ENTRY:

qd) Oo Filed motion of [ usc listing in “Motion” box above.]

(2) QO Bricf in support of motion due |.

(3) o Answer briefto motion due___. Reply to answer bricfduc_____

(4) a Hearing

(3) QO Status hearing

(6) oO Pretrial conference[held/continued to] [sct for/rc-set for}on__—sset for at
(7) oO Trial[set for/re-set for] on at.

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

(9) o This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to}

OFRCP4(m) OGeneral Rule 21 CFRCP41(a)(1) O FRCP41(a)(2).

ao ff [Other docket entry]
Memorandum opinion and order entered.
Defendant’s objection (entitled “Motion for Reconsideration) is denied.

(ll) (For further detail sec order attached to the original minute order.]

No notices required, advised in open court.

No notices required. number of noices

X | Notices mailed by judge’s staff MAR @ 8 2003

‘Notified counsel by telephone.

date docks

Docketing to mail notives. war

Mail AQ 450 form. uy
on dockeina fold non ay.

Copy to judge/magistrate judge. yunos ds isid a 5 A

5 6 aerated cn
Gos fepulys 60:6 Hd gz aaa ty
initials

ote 3 ——



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
DANIEL JOCKELL, )
)
Plaintiff, )
) No. 01 C5421

Vv. )

) Judge Robert W. Gettleman
VILLAGE OF LAKE ZURICH, a municipal )
corporation, and MATTHEW MCGANNON, )
)
Defendants. )

MEMORANDUM OPINION AND ORDER

This matter is before the court on defendants’ objection (incorrectly titled “Motion for
Reconsideration”) to Magistrate Judge Keys’s order of December 16, 2002, compelling
defendants to tum over certain documents in the possession of defendant Village of Lake Zurich
(“Village”) concerning the separation of defendant Matthew McGannon (“McGannon”) from his
employment as a Village police officer. Under Fed. R. Civ, P. 72(a), and the cases decided under
that Rule, this court should not interfere with the magistrate judge’s ruling unless it was clearly
erroneous or contrary to law. The court finds that Magistrate Judge Keys’s ruling was neither; in
fact, it was clearly proper and in accordance with the Jaw,

This court finds that the conduct of defendants’ counsel in prosecuting this objection is
particularly offensive. As he did in the proceedings before Magistrate Judge Keys, counsel Mark
Smolens displays an arrogance and distespect unbecoming of an officer of this court. He states,
quite incorrectly, that the magistrate judge displayed a “patent lack of enlightenment,” and
misrepresents the magistrate judge’s comment that the separation agreement al issuc is a “typical

agreement that is entered into in settlement of a case.” Tt is clear from the transcript that



Magistrate Judge Keys was not referring to the particular type of separation agreement involved
in this matter, in which McGannon was apparently separated for irregularitics in connection with
the documentation of a juvenile arrest (unrelated to the instant case), but the confidentiality
clause contained in that agreement.

Defendants’ counsel also states that Magistrate Judge Keys “had not bothered to review”
McGannon’s deposition transcript. This is inaccurate. Indeed, the record reflects that Magistrate
Judge Keys was completely familiar with all the pertinent documents and transcripts presented to
him, particularly including the deposition transcript that he addressed at the outset of the hearing.
This court will not tolerate such inexcusable misrepresentations.

Getting to the merits of the instant objection, the record reflects that McGannon, at his
deposition, was exceptionally obstreperous and refused to answer questions which clearly should
have been answered over objection. Pcrhaps, as Magistrate Judge Keys suggested, counsel could
have requested that the portion of the transcript to which he was making an objection be filed
under seal until he could bring it to the attention of the magistrate judge. Instead, the witness
rcfused to answer, and defense counsel concurred with that refusal over the strong objections of
plaintiff's attorney. This is clearly improper. Absent a claim of privilege il is improper for
counsel at a deposition to instruct a client not to answer, Eggleston v, Chicago Joumeymen
Plumber’s Local Union No. 130, 657 F.2d 890, 902 (7" Cir. 1981).

At McGannon’s deposition, the deponent testified that he left his position as a police
officer with the Village to take a job as an insurance investigator. Plaintiff's counsel attempted,
unsuccessfully, to determine whether McGannon’s separation from the Village had anything to

do with job performance. The witness either refused to answer the questions posed or left a clear