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1 IN THE CIRCUIT COURT OF THE 18TH JUDICIAL CIRCUIT

DU PAGE COUNTY, ILLINOIS
2

3 GARY GRASSO, )
)
4 Plaintiff, )
)
5 -vs- ) 2019 L 723
) STATUS
6 ZACHARY MOTTL, et al., )
)
7 Defendants. )

10 REPORT OF PROCEEDINGS had at the remote

11 hearing of the above-entitled cause, before the

12 Honorable ROBERT W. ROHM, Judge of Said Court, recorded

13 on the DuPage County Computer Based Digital Recording

14 System, DuPage County, Illinois, and transcribed by

15 KAREN SHALES, Certified Shorthand Official Court

16 Reporter, commencing on the 26th day of April, 2022.

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Karen R. Shales, CSR #084-004177

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1 PRESENT:

2
LUETKEHANS, BRADY, GARNER & ARMSTRONG, LLC, by
3 MR. BRIAN ARMSTRONG,

4 appeared on behalf of Plaintiff;

5
THE HOWARD LAW FIRM, by
6 MR. MICHAEL J. LOTUS,

7 appeared on behalf of Zachary Mottl, David

Williams and Zax Pac;
8

9 FINKEL MARTWICK & COLSON, P.C., by

MR. KEITH BRIN,
10
appeared on behalf of Cor Strategies and
11 Collin Corbett.

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Karen R. Shales, CSR #084-004177

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1 THE COURT: Grasso vs. Mottl, 19 L 723. Go ahead

2 and identify yourself, guys.

3 MR. LOTUS: Good morning, your Honor. Mike Lotus,

4 L-o-t-u-s, for Zach Mottl, David Williams, and Zax Pac.

5 MR. BRIN: Good morning, your Honor. Keith Brin

6 on behalf of defendants Cor Strategies and Collin

7 Corbett.

8 Your Honor, since most of this honestly is

9 directed through and to and from plaintiff, we're very

10 early. I believe this is scheduled for 10:00.

11 THE COURT: It was.

12 MR. LOTUS: I misscheduled it for 9:00 so I got to

13 enjoy the entire call so far.

14 THE COURT: Fun stuff. All right. We'll pass it

15 until he gets here. I just -- I thought maybe you guys

16 were jumping on.

17 MR. LOTUS: No, that's fine. We're up at 10:00,

18 Judge; is that right?

19 THE COURT: Yeah.

20 MR. BRIN: Judge, as --

21 MR. LOTUS: Okay. Well, I'll just hang in till

22 then. I appreciate it.

23 MR. BRIN: As a very quick question, when do we

24 lose you to the divorce folks?

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1 THE COURT: I'm not going to divorce. I'm going

2 to criminal.

3 MR. BRIN: Criminal.

4 MR. LOTUS: At least it's less emotionally

5 stressful to be in criminal than divorce, Judge.

6 THE COURT: Some might say it's a little easier.

7 MR. BRIN: When do we lose you to that division?

8 THE COURT: June 10th is my last day on the bench

9 because -- so June 10th is my last day. The following

10 week is judicial education hearings, and then I'm back

11 on the bench on the 21st June up -- it's on the third

12 floor, but it's criminal, not divorce.

13 So I'll tell you what. If you guys want to

14 reach out to Mr. Armstrong and if he's available now,

15 I've got nothing going on until 11:00. All right?

16 MR. LOTUS: I'll mute myself and give him a call.

17 How's that?

18 THE COURT: Yeah. And it's no big deal. As soon

19 as -- as soon as everybody -- I think we're just

20 waiting on Mr. Armstrong, right, or somebody from his

21 firm?

22 MR. BRIN: Yes. Well, his client sometimes comes,

23 but basically we're just waiting on the attorney.

24 THE COURT: Okay. If he's not available, then

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1 we'll see you at 10:00 otherwise. My clerk or my court

2 officer will let me know that you're all here. Okay?

3 MR. BRIN: Very good, Judge.

4 (Whereupon, the Court attended to other

5 matters on the call, after which the

6 following proceedings were had herein:)

7 THE COURT: Court is back in session, Grasso vs.

8 Mottl, 19 L 723.

9 Counsel for the plaintiff, please identify

10 yourself.

11 MR. ARMSTRONG: Good morning, your Honor. Brian

12 Armstrong, A-r-m-s-t-r-o-n-g, for plaintiff Mr. Grasso.

13 THE COURT: And for the defense?

14 MR. LOTUS: Your Honor, Mike Lotus again,

15 L-o-t-u-s, for defendants Zach Mottl, David Williams,

16 and Zax Pac.

17 MR. BRIN: And Keith Brin, B-r-i-n, for defendants

18 Cor Strategies and Collin Corbett.

19 THE COURT: All right. I just want to remind

20 everybody not to record the proceedings.

21 Are we -- are we waiting for anybody else,

22 Mr. Armstrong?

23 MR. LOTUS: Not that I'm aware of. Not that I'm

24 expecting.

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1 THE COURT: All right. Why don't we start with

2 Mottl and Williams' motion to compel. Does that sound

3 okay?

4 MR. LOTUS: That's fine, Judge.

5 THE COURT: All right.

6 MR. LOTUS: So I'm ready to go then. So we served

7 Mr. Grasso with some supplemental discovery --

8 THE COURT: Let me just hold you up.

9 MR. LOTUS: Yeah.

10 THE COURT: I read everything. Let's just start

11 with the request -- requests to admit. Okay?

12 MR. LOTUS: I was going to have minimal throat

13 clearing on this. I just wanted to say the focus here,

14 Judge, for these requests to admit, which is what I was

15 going to go through first, is we're concerned about the

16 factual foundations of his claim, particularly actual

17 malice, and that's the focus.

18 THE COURT: I got it.

19 MR. LOTUS: Also any real -- any substantive

20 versus nominal damages.

21 So requests to admit, we had 11 and 12 are

22 the main points of contention here.

23 THE COURT: Let's start -- let's start -- let's

24 start numerically. Let's start with 10.

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1 MR. LOTUS: Okay. With 10? Okay. Hang on. Let

2 me just go to that then.

3 THE COURT: I put -- just so you know, I plan on

4 going through each and every one of them separately.

5 MR. LOTUS: Okay. That's fine. Let me get my

6 motion up because I was going to focus on the ones that

7 kind of I thought were the fundamental most important

8 ones.

9 But 10, right, citizen's complaint. Let's

10 see. This is -- okay. So what 10 is about, Judge, is

11 we have the claim by Mr. Grasso it was defamatory that

12 Mr. Mottl used the word "mobster" with regard --

13 THE COURT: They got to prove -- they have to

14 prove it's untrue.

15 MR. LOTUS: They have to prove it's untrue, and we

16 had -- the citizen's complaint, which is our label for

17 it, is Mr. Mottl did a lot of research on this

18 relationship between Mr. Grasso and this Mr. Rovito,

19 who's a client, a business colleague apparently of his

20 family, and basically said look, if the statements in

21 this that are false -- you know, basically admit it's

22 true or tell us what's false.

23 THE COURT: Yeah, I got it. Mr. Armstrong,

24 what -- Mr. Armstrong --

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1 MR. LOTUS: And we got -- we got a denial that

2 it's true. Comprehensively --

3 THE COURT: Guys, this is --

4 MR. LOTUS: -- I want --

5 THE COURT: I don't really need -- guys, I don't

6 need that much argument on it. I've read everything.

7 MR. LOTUS: Okay. Sure, Judge. I'm happy to cut

8 it down to whatever you'd like to do.

9 THE COURT: Mr. Armstrong, what's your objection?

10 MR. ARMSTRONG: Well, your Honor, the objection is

11 first of all, we denied that request. The objection,

12 though, is this document, and as I sit here this

13 morning, maybe we should have provided you a copy of

14 it, it's about 125 pages. It's a compilation of random

15 newspaper articles, website articles, Wikipedia pages,

16 municipal records, and some other just compiled stuff

17 that Mr. Mottl got from all kinds of sources.

18 You know, the request is admit or deny

19 statements are true. There are -- I mean, I can't even

20 count how many statements there are that would be

21 encompassed in this request. Thousands, maybe tens of

22 thousands because the thing is 125 pages long and it's

23 a compilation of articles, et cetera, from various

24 sources. So there's no way we can answer -- we can

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1 admit or deny whether every single statement in the

2 compilation is true, so it's denied.

3 THE COURT: All right. Let's let Mr. Luetkehans

4 identify himself for a second here.

5 MR. LOTUS: I'm sorry. Are you calling me

6 again --

7 THE COURT: Mr. Luetkehans, are you with us?

8 You're on mute.

9 MR. ARMSTRONG: Your Honor, I'll take care of it.

10 Mr. Luetkehans, I don't know that he's going to say

11 anything, but he is listening in. So Phil Luetkehans,

12 L-u-e-t-k-e-h-a-n-s, also for plaintiff Gary Grasso.

13 MR. LUETKEHANS: Your Honor, I'm sorry. This is

14 Mr. Luetkehans. I'm in the county board meeting across

15 the parking lot so I was just listening in if that's

16 acceptable.

17 THE COURT: Yeah. Just spell your last name,

18 please.

19 MR. LUETKEHANS: L-u-e-t-k-e-h-a-n-s. Thank you,

20 sir.

21 THE COURT: Let me just remind everybody not to

22 record the proceedings. And yeah, go ahead, listen

23 away.

24 Okay. Mr. Lotus, that's 125 pages, hundreds

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1 if not thousands of statements. That's a little bit --

2 little much, don't you think?

3 MR. LOTUS: Your Honor, here's the thrust of it.

4 If the statements in there he says are false, that was

5 our Interrogatory 5, let him say they're not true. If

6 it's not true, for example, that this individual is a

7 business colleague of his family, you can deny that.

8 If it's not true that the man has been convicted of

9 felonies, including, you know, sex offenses, he can

10 deny that. If he's -- if he's going to deny that it's

11 false, is he admitting all of it's true. I want to

12 know -- here's the essential point here.

13 The allegation is that our people -- that

14 Mr. Mottl defamed him by calling him a mobster. We're

15 saying there is this association. Mr. Mottl had a

16 basis in his head subjectively for not thinking it was

17 reckless to say that, which is the element they have to

18 prove under New York Times.

19 What I want to know is are these things that

20 are published in newspapers, published online, is some

21 of this wrong? Is this false? Are these things that

22 we shouldn't have believed or relied on when we thought

23 that about him and said it?

24 So I'm not asking for him to go through

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1 sentence by sentence and answer or deny anything. I'm

2 giving him really the opportunity to say you know what,

3 yeah, this was in a newspaper, yeah, that was in

4 Crane's Chicago Business, yeah, this is online, but

5 it's wrong. That's what -- that's what the point was.

6 Now, perhaps I was inartful in how I did it, but that's

7 what I'm trying to get.

8 THE COURT: All right. The objection -- the

9 objection is sustained. But Mr. Lotus, you can do a --

10 you can -- I'll give you an opportunity to redo it any

11 way you want. I think what you have to do is break it

12 out. I know it's putting the onus on you, but the

13 other way is putting the onus on Mr. Armstrong.

14 Now, if the question was hey, read these 125

15 pages and tell me what's not true, that might be

16 a little -- that might be a different story, but

17 just -- just redo it.

18 MR. LOTUS: Okay, your Honor. That's fine. We'll

19 reconvene on our side and decide how we want to follow

20 up. I appreciate that direction from you and

21 clarification.

22 THE COURT: Yeah, okay.

23 MR. LOTUS: And I hope I made clear what my

24 purpose was even if we didn't kind of convey it here.

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1 THE COURT: 100 percent.

2 MR. LOTUS: Okay.

3 THE COURT: And by the way, I forgot to tell you,

4 I hope -- I hope you're -- I hope you're feeling all

5 right.

6 MR. LOTUS: Me? Yeah, I'm okay. I had COVID back

7 in February, but I'm fine.

8 THE COURT: Okay. All right.

9 MR. LOTUS: But I appreciate the question.

10 So your Honor, that was 10. 11 and 12 are

11 the two that I was going to focus on, and if I may,

12 I'll go into those.

13 THE COURT: Time out.

14 MR. LOTUS: Sure.

15 THE COURT: So Mr. Armstrong, here's what --

16 here's the option I'm essentially going to give you,

17 okay. You are 100 percent correct that defamation per

18 se, there's a presumption that there are damages, but

19 you want to just go with that, go ahead. Because I

20 won't allow any testimony of any actual damages or any

21 actual damage to reputation if you want to stick with

22 your position. In the event -- because you're

23 100 percent correct. On per se, you don't have to

24 submit evidence of actual damages or actual harm to

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1 your reputation, but you may. You certainly can.

2 And if you look at most of these cases that

3 are seven figures and up, they didn't have to submit

4 evidence of actual damages or actual harm, but they did

5 and they got more than just nominal quote-unquote or

6 even substantial quote-unquote presumptive damages.

7 So you are correct in your position, and if

8 you want to take that position, just understand you

9 can be -- you're going to be barred from presenting any

10 evidence at trial of actual damages. And I'm not sure

11 you want to do that.

12 So before I get into the merits of the rest

13 of this and most of it hinge on this particular issue,

14 are you sure you want to do that?

15 MR. ARMSTRONG: Well, here's the big part of the

16 problem for us, Judge, is a lot -- I don't know that

17 all of it, but a considerable portion and considerable

18 source of our evidence of reputation to harm, economic

19 damages and other types of damages would come from the

20 results of our investigation of talking to people who

21 got the mailing because, you know, we don't have that

22 list. We don't know who these people are so we can't

23 even begin to do that investigation to find out what

24 the scope of -- the nature and scope of the economic

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1 damages and the harm to reputation are. So we're in a

2 position where we can't do it because we don't even

3 know who to talk to about that yet.

4 THE COURT: Well, some of the -- some of these

5 requests are very specific at the time of filing, the

6 knowledge at the time of filing. Some of these are

7 specifically restricted in time frame, which would mean

8 anything that you discovered based upon the mailing

9 list, you didn't have -- you don't have now, you didn't

10 have at the time of filing. So that couldn't have been

11 the basis of that knowledge back then.

12 So I don't really think you want to do this.

13 So you can't -- it's not objectionable. The objection

14 is overruled. If you can't answer it for whatever --

15 if you can't answer them -- so, with respect -- the

16 ones that are open-ended that don't specify at the time

17 the complaint was filed or at this time or at that

18 time, if you can't answer them now because you don't

19 have that information, that's one thing. But it's

20 certainly not objectionable.

21 You've got to say I don't know. At this

22 point, I don't have any evidence of it. At this point,

23 I do have evidence of it. They're asking you at

24 various times, and if it's at the time of filing what

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1 did you have, what information did you have at that

2 time that there was actual monetary damages. At that

3 time, what evidence did you have that there was actual

4 harm to reputation.

5 And if it's now what evidence do you have

6 now, it's not objectionable. You just say here's the

7 evidence we have or at this time we don't have any

8 evidence. Do you understand where I'm going?

9 MR. ARMSTRONG: Yeah. Yes, I do.

10 THE COURT: Yes, because I certainly -- again,

11 I've not made any -- I won't even be around, guys. I'm

12 out of here June 21st, so my comments don't matter.

13 But I said it before. In particular -- I mean, first

14 of all, calling somebody a mobster, that's -- that's

15 horrendous. But -- and I understand I read somebody's,

16 I guess, reply in one of these motions where it was, I

17 guess, essentially conceded, but there was an argument

18 hey, we didn't say Mr. Grasso had an affair and had an

19 illegitimate kid. I get it. But if those things were

20 said, that's atrocious behavior and somebody ought

21 to -- somebody ought to be punished for that.

22 So, therefore, I don't want to preclude you

23 from seeking actual damages that can be proved. So the

24 objections are overruled. And you need to -- you need

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1 to answer all the requests to admit, all the answers --

2 all the interrogatories and any 214 requests that

3 revolve around that particular issue.

4 MR. LOTUS: And, your Honor, if I could just

5 clarify one thing. We had two requests for admission,

6 one at the time of the filing and one at the time of

7 answering. And those are specifically done that way

8 because we're aware of their articulated position that

9 this mailing list is where they're going to go.

10 So it's like okay, you didn't have it, you

11 don't have it now, but what do you have now and what

12 did you have when you filed and asked for $500,000 per

13 count. So just to be clear, we aren't asking anything

14 about that.

15 And I'll also add we know that the mailing

16 list concludes all the voters in Burr Ridge, so to the

17 extent they want to ask voters in Burr Ridge what they

18 knew or thought, nothing stops them from doing that

19 now, okay. So that's something else that's perhaps on

20 point here too.

21 THE COURT: That mailing list is simply just all

22 of the registered voters in Burr Ridge?

23 MR. BRIN: Your Honor, Keith Brin. No, it's not.

24 It's actually a culled list.

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1 THE COURT: Okay.

2 MR. BRIN: It's a pretty carefully culled list.

3 As I recall, it's a little over 2,000 on the list, but

4 that will include -- the campaign list will also

5 include folks who are not necessarily in the district

6 because it's a whole campaign list.

7 THE COURT: Gotcha. Anybody know how many --

8 MR. LOTUS: Perhaps I misunderstood, but I'll

9 leave it at that. That's not strictly related to what

10 we're doing today.

11 THE COURT: Out of curiosity, though, does anybody

12 know how many registered voters there are, whether

13 Democrat, Republican, Independent, Libertarian,

14 whatever? Does anybody know how many registered voters

15 there are in Burr Ridge?

16 MR. ARMSTRONG: I don't, your Honor.

17 THE COURT: I suspect more than 2,000?

18 MR. ARMSTRONG: For sure. For sure.

19 THE COURT: Okay. All right. So let's -- that

20 issue -- that issue regarding -- we resolved that

21 issue. That seems to be the --

22 MR. LOTUS: Just to make sure I know what the

23 order will say then, so as to the damage requests for

24 admission, the objection is overruled and they are

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1 supposed to answer that or provide the facts, right?

2 THE COURT: Correct.

3 MR. LOTUS: Okay. So what we also had under 11

4 and 12, though -- that was A. And then for B and C, we

5 had a question at the time of filing and at the time of

6 answering, facts showing the subjective knowledge of

7 Mr. Mottl and Mr. Williams that they knew the

8 statements were not true or subjectively doubted their

9 truth. Obviously that's the actual malice standard,

10 and as we all know, that's -- that's defendant's

11 defense. That's where the whole conflict is going to

12 occur. And we haven't yet received facts that suggest

13 the state of mind of our guys so that they didn't

14 believe these things were true or that they had -- they

15 had reckless disregard for the truth.

16 THE COURT: All right.

17 MR. LOTUS: If there are such facts, and they

18 denied they didn't have them, so I want to know what

19 they believed those to be. Because, for example, even

20 if we could --

21 THE COURT: I got it. I got it.

22 Mr. Armstrong, oftentimes -- oftentimes a

23 plaintiff won't be in possession of anything. They

24 can't crawl -- they don't know. But in the event that

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1 you do know or have reason to believe if there is

2 anything you possess, and it appears that you do, that

3 should show or that you think show that Mottl,

4 Williams, or ZP subjectively knew that the statements

5 were untrue, you've got to produce those. If you don't

6 have that, just -- if you don't have them, then just

7 admit you don't have them.

8 MR. ARMSTRONG: Well, and I'll remind everybody

9 that we have answered interrogatories that provides

10 that information, but maybe we have -- we'll see if we

11 have any more.

12 THE COURT: All right.

13 MR. ARMSTRONG: I don't think we do. I think

14 we've answered it to what we have, but we'll look and

15 if we have anything more, we'll provide it.

16 THE COURT: All right. So give me one second. So

17 the objection to sub B is overruled.

18 MR. LOTUS: And C?

19 THE COURT: And C --

20 MR. LOTUS: B and C are pretty much the same,

21 Judge. They're regarding Mr. Mottl and Mr. Williams as

22 I recall, so...

23 THE COURT: All right. Those are all -- all those

24 objections, C is overruled.

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1 Let me read D real quick. There's no

2 objection on D. It's just a denial.

3 MR. LOTUS: Yeah, I think D is actual harm to

4 reputation. I think it's similar to A. I think it's

5 really the same argument.

6 THE COURT: Okay. He denied it, so I guess --

7 MR. LOTUS: Okay. So again, consistent with your

8 previous ruling, your Honor, I think we should get what

9 facts they had at the time of the complaint and what

10 facts they have now.

11 THE COURT: Exactly right.

12 MR. ARMSTRONG: I guess -- I guess I want to

13 clarify. Under -- I want to clarify under what basis

14 we're providing the facts to deny this because Rule 216

15 doesn't require us to explain it, just admit it or not.

16 Is it under the interrogatories --

17 MR. LOTUS: Yes, it's under Interrogatory 5. What

18 we did is -- your Honor and counsel, what we did is --

19 what we typically do is we'll have a request for

20 admission and a companion interrogatory. You have the

21 request for admission and then the interrogatory says

22 in the event of anything -- an unequivocal admission,

23 please explain the factual basis for your denial. And

24 that's what we did here.

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1 So where we've got firewall denials, your

2 Honor, as I understand your ruling, you're saying okay,

3 I'm going -- you denied it, so state the facts that you

4 have in these four categories.

5 THE COURT: Correct. And I think you doubled down

6 and asked for any records as well, did you not?

7 MR. LOTUS: I believe we did the same, yes. We

8 tried to -- we're trying to get all this material

9 together either for partial or complete summary

10 judgment or to have clarification and efficiency at a

11 deposition. That's what the goal is.

12 THE COURT: I think -- I think the only other main

13 issue -- well, on this particular motion I think the

14 only other main issue are the tax returns, right?

15 MR. LOTUS: There was a couple of other things we

16 could -- we could talk about that we asked for, Judge.

17 Yeah, the tax returns, if you'd like to talk about

18 those now, we can do those now.

19 THE COURT: I would. So let me ask a question,

20 and my naivete is going to show itself. The allegation

21 in this case is that Mr. Grasso did not timely file his

22 tax returns and then took a homestead exemption; is

23 that it?

24 MR. ARMSTRONG: Yeah. Can I - if I can interrupt,

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1 your Honor, the allegation is that the defamatory

2 statements were that he did not -- that he took -- that

3 he engaged in property tax fraud by taking a property

4 tax exemption --

5 THE COURT: Right.

6 MR. ARMSTRONG: -- that he was not supposed to

7 take.

8 THE COURT: All right.

9 MR. ARMSTRONG: It's the income tax.

10 THE COURT: Here's what -- here's what I'm going

11 to do. I don't know -- I don't know what schedule that

12 would appear on. I don't know if it would appear on a

13 1040. I just don't know. Does anybody know?

14 MR. ARMSTRONG: I forget the name of the schedule,

15 but we produced the schedule that that appears on. We

16 produced that probably a year ago for several years --

17 THE COURT: Okay.

18 MR. ARMSTRONG: -- that schedule.

19 MR. LOTUS: And, your Honor, I'll mention also in

20 the --

21 THE COURT: Mr. Grasso, I'm going to ask you --

22 Mr. Grasso, stop doing that. Either stop reacting,

23 stop shaking your head. Stop -- don't. All right.

24 Mr. Grasso, that just cost you $250 because I'm going

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1 to hold you in contempt of court. I'm not sure on what

2 planet you think it's okay while the Court is speaking

3 with you to turn your video off. Turn it back on now.

4 Unmute yourself, sit up straight, get the smirk off

5 your face, and don't you ever do that in my courtroom

6 again. Do we understand that, sir?

7 MR. GRASSO: Yes, sir. And I'm sorry, your

8 Honor, but you're --

9 THE COURT: Now stop talking.

10 MR. GRASSO: -- making statements --

11 THE COURT: Now you stop talking. You've answered

12 my question. You knock it off. You've been a lawyer

13 for a long time.

14 MR. GRASSO: Yes, I have.

15 THE COURT: Okay.

16 MR. GRASSO: I have.

17 THE COURT: Stop interrupting me, sir. It is

18 improper for you to behave that way, to go like this

19 with your hand. For the record, he's waving away, he's

20 vociferously shaking his head. Knock it off. Got it?

21 MR. GRASSO: Yes, I do, Judge.

22 THE COURT: The next two words out of your mouth

23 ought to be I apologize.

24 MR. GRASSO: I apologize, Judge.

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1 THE COURT: Now, put -- put your microphone back

2 on and stop it. If you can't control yourself, if you

3 need to act like a child, then you may turn off your

4 video. Either way, it's up to you. I couldn't

5 possibly care less.

6 The issue in this case is that -- the issue

7 with the property taxes, that's it, right, Mr. Armstrong?

8 MR. ARMSTRONG: That's correct.

9 MR. LOTUS: Your Honor --

10 THE COURT: Mr. Lotus, do you agree with that?

11 MR. LOTUS: I think there's an additional issue.

12 THE COURT: Tell me.

13 MR. LOTUS: The additional issue is the

14 possibility of actual damages. It's often the case

15 that if a person has actual damages, that will be

16 reflected in the diminished income, their business

17 isn't making as much money and maybe it's not paying as

18 much through to them. If we see a person who seems to

19 be prospering, then it seems like the public and

20 possible clients and existing clients are still using

21 Mr. Grasso's services and that these comments, however

22 personally harmful that may -- hurtful they may have

23 been, didn't hurt his reputation professionally in such

24 a way that it had any impact on his income.

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1 THE COURT: Fair enough.

2 MR. LOTUS: So I think it's potentially -- let's

3 say we had a year where he had a spectacular business

4 year. Well, right after these supposedly horrible --

5 without regard to the merits of the comments, did the

6 public feel a certain way, did potential or actual

7 clients feel a certain way. So I think it goes to

8 damages as well.

9 THE COURT: It may at some point, but not now. So

10 that objection is sustained. The probative value is

11 greatly outweighed by the invasion of privacy.

12 Now, in the event that actual damages are

13 being claimed, monetary loss, and I can think of

14 several ways that might have occurred, it's no

15 different than somebody in a personal injury action

16 claiming they couldn't go to work and lost wages, okay.

17 Hawkins vs. Wiggins, that makes those tax returns

18 immediately relevant.

19 So at this point, given Mr. Armstrong is

20 simply at this point taking the position that it's per

21 se and a presumption of damages, those tax returns are

22 not relevant other than that one particular schedule

23 that would reflect whether or not Mr. Grasso took

24 whatever deduction it was that Mr. Mottl accused him

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1 of. That is without prejudice to re-asking for those

2 documents in the event they became relevant.

3 Okay. What else?

4 MR. LOTUS: Understood, your Honor. Okay. So the

5 other element -- another one we had is Interrogatory 3

6 and 6. And what those had to do with was David

7 Williams' purported participation in the campaign. And

8 6 has references to multiple -- plural -- social media

9 posts. And here's the -- and our understanding is

10 David basically didn't want to have anything to do with

11 the campaign and did not. And, therefore, the only

12 thing that he did that was directed at Mr. Grasso was

13 the comments referenced in Counts IV and V and one

14 social -- one social media post.

15 And what I'm trying to do here, your Honor,

16 is find out if there's any facts that tie Mr. Williams

17 to all the other statements. Because frankly, I'm

18 going to get partial summary judgment for him on all

19 those others unless he's removed. I don't want him

20 having seven other counts that had nothing to do with

21 him hanging over his head. So I'm saying tell me any

22 fact that shows he was active. And all I got back was

23 that it was common knowledge and that after the

24 campaign, he married Mr. Mottl. I don't think either

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1 of those things show his participation in any of these

2 other counts and any of these other statements.

3 He didn't have anything to do with them, and

4 if they have something that contradicts what I

5 understand, I need to know it because I don't believe

6 he should be -- his head should be in the guillotine

7 when seven out of nine counts he had nothing to do

8 with.

9 And the other one is -- this last thing, I'll

10 be quick. We had this before you before where

11 Mr. Luetkehans said -- and I'm sure he was being

12 forthcoming at the time. He said, your Honor, the only

13 social media posts we know that has anything to do with

14 him is this one that we alleged, yet answers I'm

15 getting keep referring to multiple social media posts

16 that are defamatory. That's what they said.

17 I have to know, tell me each and every social

18 media posts that's defamatory that came from one of my

19 clients. Tell me what they are and show them to me

20 because I don't want to have them come along later and

21 I've never heard about them. I think those are both

22 reasonable things to ask for.

23 THE COURT: What is Exhibit D?

24 MR. LOTUS: Exhibit D, I think, your Honor, is the

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1 social media post where David -- the Nextdoor post,

2 which is the basis for their claims against David

3 Williams that supports Counts IV and V.

4 THE COURT: Okay.

5 MR. LOTUS: It's one social media post on a

6 platform called Nextdoor.

7 THE COURT: Well, then that's the only -- that's

8 the only -- that's the only evidence that they're going

9 to be able to use as far as that's concerned. I can't

10 make them produce something that they don't have. It's

11 not an objection. That's their answer. It's common

12 knowledge. Okay, it might be, but they're limited to

13 Williams made comments and posts on social media

14 regarding the election. Exhibit D to defendant's

15 motion --

16 MR. LOTUS: Okay. So the comments plural and the

17 one thing -- okay, that's fine, your Honor. You're

18 saying that they're limited to that because that's all

19 they've come forward with. I'll live with that, but

20 I'm troubled by the repeated implication that there's

21 more hanging around out there.

22 MR. ARMSTRONG: No, no --

23 MR. LOTUS: And, of course, on a certain level, it

24 might be smart for me to just lie low and leave it that

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1 way, but I'd rather just drag it all out and know what

2 I'm up against.

3 THE COURT: Yeah, my thoughts exactly. He's

4 limited to whatever he responds to, whatever his

5 response is. It's Exhibit D.

6 Now, that said, there's a duty to seasonably

7 update and supplement the discovery and if he finds

8 something else, that's fine. But I better find -- I

9 better be persuaded that it's recently discovered and

10 they didn't have it when they filed and certified these

11 answers to interrogatories.

12 So, Mr. Armstrong, if you want to stand on

13 that, it's limited --

14 MR. ARMSTRONG: I do want --

15 THE COURT: -- to Exhibit D. If you want to amend

16 it, amend away.

17 MR. ARMSTRONG: I'm sorry for interrupting, Judge.

18 THE COURT: That's okay. Go ahead.

19 MR. ARMSTRONG: I do want to address something.

20 You know, No. 3 we answered before. We

21 denied a motion to compel. We then supplemented it

22 with additional information. No. 6 regarding source

23 media posts, we provided what we were able to print out

24 while we were able to access them. We also disclosed

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1 in the interrogatory answer in the supplement, we gave

2 them a name of a person who saw posts. We can't get

3 those posts once they're gone, but we gave the name

4 Patricia Schiappa, who saw posts by Williams on other

5 social media sites. I don't know what she saw because

6 we don't have them because she didn't print them. We

7 don't have it. But she might be able to say what she

8 saw.

9 THE COURT: Okay. If you don't -- I can only

10 order you to produce and identify that which you have

11 knowledge of and/or possession of. If you don't have

12 it, you don't have it. Let me remind you that you have

13 an obligation to seasonably update these and the onus

14 is going to be on you to establish that you didn't have

15 access or you didn't have knowledge of any additional

16 items or documents that are produced at a later date.

17 You know, again, Mr. Lotus is kind of between

18 a rock and a hard place. As he said, he's probably

19 better off leaving it as is for purposes of evidence at

20 trial, but he wants to know and he doesn't want to be

21 ambushed.

22 So with respect to 3, if it's -- insofar as

23 that's a motion to compel, that's denied. I guess that

24 applies to 6 too, doesn't it?

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1 MR. ARMSTRONG: Yes.

2 MR. LOTUS: So those are both denied, your Honor,

3 I take it --

4 THE COURT: Yep.

5 MR. LOTUS: -- because they have a duty to

6 supplement. So if they've got something else, they got

7 to give it to us.

8 THE COURT: And if you can establish, Mr. Lotus,

9 that these answers at the time were incomplete or that

10 there was not a seasonal update, in other words, for

11 all I know, this afternoon plaintiff could obtain this

12 information and not disclose it for six months. If you

13 can establish that, I will -- I'll enter sanctions.

14 That's all I can do. I mean --

15 MR. LOTUS: I understand, your Honor.

16 THE COURT: -- I got to take Mr. Armstrong and

17 Mr. Grasso at their word that they're disclosing

18 everything they have. So if there's evidence that

19 that's not true, that will be dealt with harshly.

20 MR. LOTUS: Truth is, your Honor, I wouldn't be

21 surprised if the use of the plural was not well thought

22 out, but to me it looked like it could potentially put

23 me at risk and I wasn't going to just leave it there

24 and not ask for it.

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1 THE COURT: I don't blame you.

2 All right. What else have we got?

3 MR. LOTUS: We had a request for production with

4 regard to communications with Mr. Rovito, and there was

5 an objection to that, and to which I say if there's --

6 if there's -- one of the objections was privilege, if

7 there are privileged communications, produce them with

8 a privilege log.

9 THE COURT: Yeah. Don't produce them with a

10 privilege log, you mean.

11 MR. LOTUS: I'm sorry. Excuse me. That's what I

12 meant. In lieu of production, provide a privilege log.

13 THE COURT: Yeah. So that objection -- the

14 objection to communication with Mr. Rovito, I

15 understand even though sites to Wikipedia aren't my

16 favorite, but I get it. It sounds like Mr. Rovito is

17 or was a client. Clearly, and even if Mr. Grasso

18 wanted to, absent a waiver or permission by Mr. Rovito,

19 he can't.

20 So the objection is overruled. If there are

21 documents that are responsive to that request that

22 don't -- that aren't protected from disclosure by

23 either attorney/client work product, privilege or the

24 like, produce those. And any documents that are

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1 responsive that are being withheld because of some type

2 of recognized legal privilege, needs a privilege log.

3 MR. ARMSTRONG: And let's understand some of this

4 representation occurred a long time ago.

5 THE COURT: Yeah, I know.

6 MR. ARMSTRONG: Most of us, we don't keep our

7 files for 30 years, 20 years. There's a really good

8 chance these files have been destroyed in the ordinary

9 course of Mr. Grasso's file destruction process.

10 THE COURT: Yeah. Again --

11 MR. ARMSTRONG: If that's case -- if that's the

12 case, we will say that, Judge.

13 THE COURT: Yeah. Just produce what you got.

14 MR. LOTUS: And obviously, your Honor, no one can

15 create documents out of nonexistence and I'm not asking

16 for anything like that. That's perfectly reasonable.

17 THE COURT: Here's the thing. Rather than -- I

18 don't want to do this, but, you know, again this is not

19 a complicated case. But, you know, if I can deal with

20 these issues before Judge McJoynt has to because he's

21 going to be -- he's going to be overwhelmed, he's going

22 to be swamped, I'd like to.

23 So here -- here's my thought. I don't know

24 if Mr. Lotus, once he gets the privilege log, is going

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1 to file a motion to compel for an in camera inspection.

2 Is that your normal routine, Mr. Lotus?

3 MR. LOTUS: Your Honor, to be honest, this case is

4 somewhat unique. I don't have a routine. I'd have to

5 see what we got.

6 THE COURT: All right.

7 MR. LOTUS: I may. I can't -- I don't want to

8 forfeit doing something going forward, but I can't -- I

9 can't say what I'm going to get so I can't say what

10 I'll do.

11 THE COURT: All right. Do me a favor. Do it --

12 if that's what you want, get that motion filed quickly

13 so that I can do it myself before --

14 MR. LOTUS: I would -- your Honor, I would love to

15 have all this written discovery stuff finished before

16 you move on. That would be wonderful. And that's what

17 I would hope that we can do, but obviously we need to

18 see how it goes.

19 THE COURT: What's the word on -- Mr. Brin, how

20 far -- how much do you owe me now on your contempt?

21 MR. BRIN: Well, it's -- we've -- we've had it

22 filed and it's -- actually, finally everything's been

23 certified and we are in the briefing period now for the

24 Court. So I believe my brief is actually due in two or

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1 three weeks.

2 THE COURT: Did I fine you a hundred or a dollar a

3 day?

4 MR. BRIN: I believe you fined me $10 a day,

5 which, you know, inflation has its way of creeping into

6 everything, so...

7 THE COURT: But when I go -- when I go upstairs,

8 do I still get that?

9 MR. BRIN: You know, since I've never been held in

10 contempt, I'm actually not really on top of having to

11 pay the Court for malfeasance, so I'm not sure.

12 THE COURT: Yeah, I know that goes to the clerk's

13 office. I don't know what they do with it.

14 MR. LOTUS: And, your Honor, there's two items

15 left in our motion --

16 THE COURT: Okay.

17 MR. LOTUS: -- and I'll be brief. I'm sorry if

18 that wasn't clear.

19 THE COURT: Not at all.

20 MR. LOTUS: Request for production 10, we asked

21 for communications between Mr. Grasso and Mr. Bowers.

22 Mr. Bowers was Ms. Gerut's lawyer. He said those would

23 be privileged. They wouldn't be privileged. Ms. Gerut

24 had a lawyer, Mr. Bowers, and to the extent Mr. Grasso

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1 coordinated with him, that's not privileged. And we

2 would like to see those communications if there were

3 any.

4 THE COURT: Well, it is if there's a joint

5 defense. I don't know that.

6 MR. LOTUS: I don't know that and that wasn't -- I

7 don't think they said there was a joint defense.

8 THE COURT: All right.

9 MR. LOTUS: They said they were privileged.

10 THE COURT: Objection --

11 MR. LOTUS: If there's some other basis to not

12 respond, obviously I'll respond to that if I get it.

13 And the last one was --

14 THE COURT: Well, let me rule -- let me rule on

15 that. That objection is -- that objection is -- that

16 objection is overruled. If you have any documents that

17 are not protected by some recognizable privilege, those

18 must be produced. In the event you're withholding

19 documents based on a privilege, that ought to be

20 reflected in a privilege log and filed with your

21 answer.

22 Okay. Mr. Lotus, go ahead.

23 MR. LOTUS: And last, sir, we had -- in the

24 subpoena we asked for what we defined in the rider as

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1 personal communications. The response to the subpoena

2 was there are none. Yet --

3 THE COURT: Wait. Say that again. What are you

4 seeking, personal communications?

5 MR. LOTUS: Okay. Let me back up. We had a

6 subpoena to a lady who we had information about and we

7 supplemented our production yesterday --

8 THE COURT: Ms. Gerut.

9 MR. LOTUS: -- with regard to that. Okay. That's

10 who that was, Ms. Gerut.

11 THE COURT: G-e-r-u-t, right? Okay.

12 MR. LOTUS: So we said please produce personal

13 communications to Mr. Grasso between yourself and her.

14 And the subpoena said there wasn't anything, yet in an

15 answer we got from him, he referenced a particular text

16 and didn't produce it. So there are -- there's at

17 least one document out there and I want them -- I'm

18 asking them to produce the personal communications

19 between himself and her.

20 MR. ARMSTRONG: That is -- no. That's completely

21 false. We produced the text message several weeks ago.

22 Maybe Mr. Lotus didn't --

23 MR. LOTUS: Then I --

24 MR. ARMSTRONG: Maybe Mr. Lotus did see it -- let

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1 me finish, please, Mr. Lotus. Maybe he didn't see it,

2 but we produced it. I don't remember the day, but

3 probably between two and three weeks ago we produced a

4 supplemental response to request to produce with the

5 text message attached. And that's in addition to --

6 that's in addition to previously providing not the

7 actual text message itself, but the content of the text

8 message in the answer. So he's gotten it in two

9 different forms.

10 MR. LOTUS: First off, if I missed it, I

11 apologize. If Mr. Armstrong says he gave it to us,

12 then it's on me. I missed it somehow.

13 THE COURT: So what's the -- what's the objection

14 on that one? The basis wasn't in the -- well, maybe it

15 was.

16 MR. LOTUS: It's a request for production --

17 MR. ARMSTRONG: Objection, was overly broad,

18 burdensome, not proportional, irrelevant. And then

19 without waiving those objections, we produced the

20 one text -- we produced the context of the one text

21 message in our initial response, and then in a

22 supplemental response when we got the actual screen

23 shot of the text message, we then produced that.

24 THE COURT: Gotcha. So the objection is

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1 overruled. The motion to compel is denied. They

2 produced what they got.

3 So again, same admonition. Got a duty to

4 supplement it, but that objection is overruled. The

5 motion to compel is denied. I think that's it, right?

6 MR. LOTUS: That's it for my motion, Judge.

7 THE COURT: All right. Let's go, if we can, to

8 the EIS. There's no issue now on the plaintiff's

9 motion to compel Mottl, Williams, and Zax to answer

10 discovery. That's been resolved, right, Mr. Armstrong?

11 MR. ARMSTRONG: We did receive a response. I

12 haven't had a chance to review the response, but we did

13 receive a response.

14 THE COURT: All right. So all we have left this

15 morning is Mr. Brin's motion to compel EIS, right?

16 That's the only --

17 MR. BRIN: Well, yes, your Honor. And if I may,

18 I'm not a big fan of just filing tons and tons of

19 motions. So Mr. Lotus, when he filed his request to

20 admit, was a little bit of the canary in the coal mine.

21 If I may have leave of court to issue similar requests

22 to admit as to, I believe, B and C with the

23 interrogatories to match.

24 THE COURT: Any objection -- any objection,

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1 Mr. Armstrong? I don't know that he needs leave.

2 MR. ARMSTRONG: Well, I mean, discovery is still

3 open. I don't know if he needs leave to --

4 THE COURT: He doesn't, but to the extent he's

5 requesting it, I'll grant you leave.

6 MR. BRIN: Thank you, Judge. I always like to

7 cross my T's and dot my I's just in case.

8 THE COURT: All right. Let me preface this next

9 one. Okay. You know, I've been on the bench eight

10 years so it's not that long, but I just want to be up

11 front. Before I got on the bench, this EIS wasn't

12 really a big thing. It just wasn't. I get it, it is

13 now. So what I'm telling you is you guys have been

14 practicing law the past eight years while I haven't.

15 You know, I'm not saying I'm technologically ignorant.

16 I'm not, but, you know, you're talking about wild

17 cards, and I get it. I didn't know what it was until I

18 saw it in this motion. I never heard of it before.

19 But the point I'm trying to make is it

20 doesn't seem to me that by punching in various words

21 into your computer and printing out whatever comes up,

22 that it's that big a deal. It seems pretty

23 straightforward.

24 But Mr. Armstrong's position is -- I think

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1 really is what you guys have referred to -- I think you

2 called it wild card, yeah. The wild card aspects of it

3 and the -- yeah, wild card words and the derivations of

4 it. That's the big issue, right, Mr. Armstrong?

5 MR. ARMSTRONG: Well, also just the overall scope

6 of it. I mean, it's more than just punching in some

7 words and getting the documents. It's reviewing all of

8 the results, which given the quantity of search terms,

9 it's going to result in at least tens of thousands of

10 responses. And so it's -- just it's the breadth of it,

11 the scope of it in addition to the wild card.

12 And, you know, this -- this -- what they've

13 asked for, I'm certain that you didn't comtemplate this

14 level of breadth because in your order, you initially

15 ordered that the responses would go to you to review

16 before they're turned over to the defendants, and so

17 I'm certain you didn't anticipate getting tens of

18 thousands of responses to go through.

19 THE COURT: No.

20 MR. ARMSTRONG: So it's not just about that

21 aspect. It's the over -- I mean, the quantity of

22 search terms to begin with and then they're multiplied

23 by the wild card aspect of it.

24 This process -- I know Mr. Brin keeps saying

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1 it's a simple process. It's not because it's going to

2 be multiple rounds of, you know, sifting and winnowing

3 through results that are going to start in the untold

4 number of documents. But it's not -- you know, it's

5 not like just punching in a couple of search terms and

6 getting maybe 500 pages of records to go through.

7 That's not what this is. This is going to be an

8 unbelievable burden given how broad it is.

9 I mean, think about it. You know, we pointed

10 out in the motion tax, Cook County. Mr. Grasso has

11 practiced in Cook County for decades. How many

12 documents are going to come up with the words "Cook

13 County" on it? Thousands.

14 THE COURT: Yeah.

15 MR. ARMSTRONG: And it shouldn't be on us to sift

16 through all those and filter through all of those. It

17 should be on -- you know, on the defendants to come up

18 with a reasonable scope of documents that things that

19 are likely to result in hits that are really relevant

20 and meaningful in this case, and that isn't what we

21 got, Judge.

22 THE COURT: All right. How come you didn't object

23 within 14 days?

24 MR. ARMSTRONG: You know, I saw the request -- the

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1 request for production from Mr. Brin and it said 30

2 days, and December in our office was a crazy month with

3 some federal redistricting litigation and it just

4 slipped my mind, Judge.

5 THE COURT: Yeah, I'm not going -- I'm not going

6 to hold that against you.

7 All right. Mr. Brin, I've read everything.

8 You've got -- you've got to pare this down. It's too

9 much.

10 MR. BRIN: So, your Honor, if I may, I find it

11 very, very difficult to believe that because the

12 opposition in a case has a lot of electronic records,

13 that suddenly it's overly burdensome for them to go

14 through their own record when everything I've put down,

15 I literally wrote down every single term and tied it to

16 a relevant point in this case.

17 Lord help us if someone is suing Pfizer or an

18 insurance company. An insurance company, everything is

19 digital. Could an insurance company walk into court

20 and say, you know, it's just too much digital records

21 for us to have to go through, so we either shouldn't

22 have to do it or it should be on the other side,

23 despite the fact that we sued so they can have our

24 records. That's not how this works.

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1 Never mind No. 1, No. 2, you've ruled on this

2 already. We are now revisiting the motion to -- our

3 motion to compel, which you said they had to do. You

4 specified in order to keep privilege -- and by the way,

5 they brought in privilege issues because they attached

6 documentation of an e-mail from his law firm. I didn't

7 bring in that stuff. They did. So are we supposed to

8 ignore it because now it's too much stuff? That's

9 ridiculous.

10 In the days of having to go through bankers

11 boxes of this stuff, the other side didn't go through

12 it. The side who had it went through it. And it took

13 hundreds and hundreds of hours to go through it. Now

14 it's in electronic form. And by the way, your Honor,

15 the wild card is literally simply putting -- typing it

16 as it is with an asterisk. Anyone can do it by e-mail.

17 My clients did it through their records because as

18 required in the boilerplate of everything, we are

19 required to produce electronically searched

20 information. We produced reams of printouts of e-mails

21 and such. But now, of course, that doesn't apply to

22 the plaintiff? That's ridiculous. No one who keeps

23 any significant electronic cases could ever get their

24 stuff.

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1 THE COURT: Well, let me ask you a question. All

2 right. We're not -- this isn't a request for a

3 plumber's electronic information or a teacher's or a

4 ditch diggers. How many -- how many -- how many

5 e-mails do you think are going to contain either these

6 words that I'm about to mention or derivatives of them:

7 Fee, pay, Cook, Chicago, DuPage, home, house. He lives

8 in Burr Ridge, so Burr, late. I'm going to keep going.

9 Court, prior, claim, damages.

10 MR. ARMSTRONG: And keep in mind, Judge, it's not

11 just -- it's not just e-mails that would be responsive.

12 THE COURT: I know.

13 MR. ARMSTRONG: It's every pleading in his

14 computer would be responsive. Every --

15 MR. BRIN: Your Honor -- I'm sorry, Mr. Armstrong.

16 MR. ARMSTRONG: Every discovery request would be

17 responsive to those.

18 MR. BRIN: If I may, your honor, Mr. Armstrong, I

19 will actually concede that point. I will 100 percent

20 concede that point. In the original request, I asked

21 for any two of the terms to be within a communication

22 for it to be produced, No. 1, to winnow it down.

23 No. 2, despite the fact the 14-day objection

24 was not met, we actually had a 201(k), and my pleading

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1 was A, tell me what the search parameters are that

2 we're dealing with, how many servers. They couldn't.

3 They still haven't. They haven't even done a

4 preliminary search.

5 They assume it's going to be a lot of

6 documents. I tend to agree with them, but I said to

7 them then give me a way to pare this down. I don't

8 want that stuff. I don't care about that stuff.

9 Mr. Grasso is in a law firm. I'm guaranteeing you in

10 DuPage County and Cook County, they've probably filed

11 hundreds of cases. I don't want any of those things.

12 But I don't know a better way to pare it down.

13 So I offered to the plaintiff's counsel, tell

14 me a way to do it. And instead of going along with

15 any, giving me a way to do it or any of the information

16 I sought, they simply objected. And they objected to

17 everything. They objected to the parties' names. So

18 you know what? I won't concede a thing, your Honor.

19 They're not working with us to try to pare this list

20 down in any conceivable way, so suddenly I'm blocked

21 from getting my discovery? That's absurd.

22 MR. ARMSTRONG: Your Honor --

23 THE COURT: I'll let you talk, Mr. Armstrong, but

24 here's my inclination. Obviously all the names of the

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1 parties, that's a no-brainer. I want this redone and I

2 want a string. I want two -- at least two words. I'm

3 not going -- Chicago, no, not happening. Cook, not

4 happening. DuPage, no. Burr, no.

5 All this other stuff -- I understand why

6 you're asking for each of those, but all of these --

7 most of these -- you'll find it through some of these

8 other key words. So the ones I just read off the top

9 of my head, take those out. The names of the parties,

10 obviously that -- that goes in.

11 You know, the alleged defamatory words that

12 were spoken, those don't need to be in a search string.

13 For example, mobster, that doesn't need to be in a

14 search string. That's certainly relevant. So let's,

15 you know, be reasonable.

16 You're entitled to this stuff, Mr. Brin. I

17 get it. But this is just -- this is just -- it is. It

18 is overwhelming and it's overbroad. It's too

19 burdensome. And that is a basis for me to control this

20 type of discovery request.

21 Now, I don't think any of you -- any of the

22 five of you that are on this Zoom call would use

23 this -- use this type of discovery as a sword or to,

24 you know, just try to overwhelm somebody or paper them

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1 to death. But if this were allowed in normal

2 circumstances or other circumstances unfettered, you

3 know, it would lead to just absurdity.

4 So I know you guys aren't doing this, and I

5 looked at every search term and I get it. All of them

6 are in one way or another relevant to the issues in

7 this case. It's just too much so --

8 MR. BRIN: Your Honor -- oh, my apologies.

9 THE COURT: No, no. I'm good. I told

10 Mr. Armstrong first I'd let him speak and then I'll

11 certainly let you speak, Mr. Brin.

12 MR. BRIN: Yes, yes, absolutely.

13 MR. ARMSTRONG: So we -- as I pointed out in our

14 response, after the 201(k) conversations we had, and

15 Mr. Brin attached this to his motion I think in the

16 first place, we provided a list of terms that we would

17 not object to. Frankly, we anticipated that there

18 would be some negotiation about the scope of the terms.

19 None of that occurred. The next thing that happened

20 was Mr. Brin filed a motion.

21 So it sounds to me like you either have told

22 us or about to tell us that we need to work to try to

23 narrow the scope with the -- with the comments you made

24 about the various terms. So that's fine, we'll do

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1 that. The other component here is the cost of doing

2 this.

3 THE COURT: Is what?

4 MR. ARMSTRONG: The cost of doing this. You know,

5 this is going to require a third-party vendor, an IT

6 service to do this search probably to -- maybe -- I

7 don't know how they're going to do it, if they're going

8 to have to have access to Mr. Grasso's office, if

9 they're going to have to try and duplicate his drives,

10 et cetera. But it's going to require a third-party

11 vendor to do this, this technological work. So we

12 think that the party requesting it should be required

13 to pay for it, Judge.

14 THE COURT: All right. I'll hear from Mr. Brin on

15 that, but one modification to my ruling on this.

16 On page 3 of the -- of Mr. Armstrong's

17 response, there are 14 terms that are also going to be

18 excluded from having a two-word string. So the names

19 of the parties as well as the terms on page 3 as well

20 as the term mobster.

21 And I guess in addition to -- in addition to

22 the names of the parties, also excluded from my rulings

23 are the names of any relevant witness such as Rovito,

24 he's not -- he's not a party. Gerut, she's not a

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1 party.

2 MR. ARMSTRONG: So to make sure I understand

3 correctly, what you're saying is we do not have to

4 include those in the search --

5 THE COURT: No.

6 MR. ARMSTRONG: -- is that right?

7 THE COURT: I'm saying the names of any

8 relevant -- certainly the names of the parties, any

9 relevant witness, the word "mobster," the 14 terms on

10 page 3 of your response, those can just be single word

11 requests. Any other requests has to be two words

12 together.

13 MR. ARMSTRONG: Thank you for the clarification.

14 MR. BRIN: Your Honor, if I may --

15 THE COURT: Yes.

16 MR. BRIN: So look, again to reiterate, I don't

17 want the nonsense. I know it's going to come out with

18 a lot, and I suggested to counsel that we work through

19 this. I brought the motion because the objection was

20 so on its face not wanting to get to the right terms

21 that -- here's my great concern. In two weeks we're

22 back here because we can't come to an agreement.

23 I'll give you an example. The addresses of

24 the house, the numbers on the house are excluded. The

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1 dollar amounts that he paid late in our tax part were

2 excluded. What comes on here -- are they realistically

3 going to come -- they excluded everything but 14 terms.

4 There were 70 terms.

5 THE COURT: I saw that.

6 MR. BRIN: Look, realistically does anyone really

7 think we're going to suddenly have a Kumbaya moment and

8 think ah, well, we excluded the dollar amounts, well,

9 we were just really kidding, we'll take it. I just

10 don't think it's going to happen.

11 And by the way, it's certainly not to impugn

12 Mr. Luetkehans or Mr. Armstrong. They're -- actually,

13 they're very good at this and they're defending their

14 clients' interests. And I get it and I would make the

15 same objections. I just don't believe that the parties

16 are going to come together on this list and come to

17 some agreement as to terms. I would actually, as much

18 as it might take up some court time, much rather go

19 through them individually and just have you rule on

20 them and we'll just take it from there.

21 THE COURT: All right. Let's do it. I've got --

22 MR. ARMSTRONG: Judge, if you're going to do that,

23 I want to make sure we're working off the correct list

24 because the lists in the motion -- in the briefing are

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1 sort of abbreviated. I think you have to go to the

2 exhibit, which is the complete list, the exhibit which

3 is the supplemental request for production that

4 Mr. Brin served.

5 MR. BRIN: Yeah, that was in our Exhibit C, I

6 believe, your Honor. Document request No. 1, it's on

7 page 1. Though I -- I mean, perhaps, Mr. Armstrong, so

8 our last exhibit, actually you seemed to cut and paste

9 all of them, I'll take your word for it, and it

10 actually has the ones you objected to that may give the

11 judge some inclination as to the ones you may feel a

12 little bit more strongly about. But I'm happy to go

13 through the blank list as well. It's up to you.

14 THE COURT: Are you talking about Exhibit D to the

15 motion that's got this -- can you see that, it's got

16 some yellow?

17 MR. BRIN: Yes. So that's -- that part of the

18 exhibit I included Mr. Armstrong's e-mail and that list

19 he attached. He objected to the ones that were

20 highlighted. But that is a -- I believe, I haven't

21 checked it, but I will take his word for it that's a

22 cut and paste from the ones that we requested

23 originally in our document request.

24 THE COURT: Let's go through it. Is just the

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1 yellow ones the objectionable ones?

2 MR. BRIN: That was my understanding.

3 THE COURT: All right.

4 MR. ARMSTRONG: Can you put that up again, Judge?

5 MR. BRIN: It's Exhibit D. It's the second

6 part --

7 THE COURT: I think that's what I have.

8 MR. BRIN: -- of Exhibit D.

9 THE COURT: One, two, three, four, five, six -- is

10 it seven lines, first one says tax, the last one says

11 daughter?

12 MR. BRIN: Yes.

13 THE COURT: Yeah, I got it. All right. Here's my

14 rulings. You ready?

15 MR. BRIN: Yep.

16 THE COURT: Obviously the ones that are not

17 objected to, I'm not going to deal with.

18 Fee, objection sustained. Pay, objection

19 sustained. Mailer, objection overruled. Cook,

20 Chicago, DuPage, sustained. Property, overruled.

21 Home, overruled. House, overruled. Burr, sustained.

22 6030 is what, the address?

23 MR. BRIN: Address.

24 THE COURT: That objection is overruled. Grant is

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1 sustained. Late, sustained.

2 What's 1357?

3 MR. BRIN: That's the other address.

4 THE COURT: For what purpose? Why is that

5 relevant? For taxes?

6 MR. BRIN: Well, there's two -- there's two

7 addresses, your Honor, and there is the -- part of the

8 accusations are that there was improper homeowner's

9 exemptions in the rest and there were two addresses

10 involved.

11 THE COURT: Gotcha. Let me go back. What is

12 Grant? Is that a street name?

13 MR. BRIN: Hold on. Let me take a look at my

14 motion to compel. My apologies, your Honor.

15 THE COURT: That's okay.

16 MR. BRIN: Grant was -- the street of the DuPage

17 home at issue was 6030 South Grant Street in Burr

18 Ridge.

19 THE COURT: All right. So 6030 combined with --

20 6030 -- the string 6030 Grant, you can ask. 1337

21 Grand, you can ask. Residence, sustained. Defam,

22 overruled. Libel, slander, overruled. Court,

23 sustained.

24 What's 36?

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1 MR. BRIN: I believe that was -- give me a moment,

2 your Honor. 36, homeowner's exemptions that were

3 $36,000. So I used the variation. It could be 36K, it

4 could be 36 comma 000, 36,000, any variation. 36 was

5 that variant.

6 THE COURT: Objection, sustained. That's too

7 broad. Mottl, that's overruled. That brings me to

8 clerk.

9 MR. BRIN: I believe if -- I apologize, your

10 Honor. Assessor and treasurer.

11 THE COURT: No, those aren't objected to.

12 MR. BRIN: Okay, yeah.

13 THE COURT: Clerk is sustained. I mean, any

14 motion or any document that's filed with the clerk of

15 court would have that.

16 So that takes us to senior. Why is that

17 important?

18 MR. BRIN: Senior exemption, your Honor. It's at

19 issue.

20 THE COURT: Senior exemption?

21 MR. BRIN: Yes, it is. There was a claimed senior

22 exemption on two different residences at the same time.

23 THE COURT: So the string senior exemption.

24 Previous, sustained. Prior, sustained. Owner,

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1 sustained. Claim, sustained.

2 What's 314?

3 MR. BRIN: The amount he failed to pay on time,

4 one of the amounts.

5 THE COURT: So with respect to these dollar

6 amounts, put the specific number in, I'll allow it.

7 But just the way it is, those objections are sustained.

8 E-V-A-S, what in the world?

9 MR. BRIN: My apologies, your Honor. The 314, it

10 wouldn't be put in that way?

11 THE COURT: No. You can put in the exact amount.

12 MR. BRIN: That is. It's $314, one was $480, the

13 other was $1,093.

14 THE COURT: Well, then put that in. Put it in

15 exactly with the dollar sign. Yeah, put it exactly in.

16 What is E-V-A-S?

17 MR. BRIN: Evasion. Evasive, evasion, evaded,

18 although that wouldn't cover that. But yeah, the tax

19 evasion was one of the things that was claimed as part

20 of the defamation.

21 THE COURT: You got tax in there, don't you?

22 MR. BRIN: Yes.

23 THE COURT: All right.

24 MR. BRIN: Your Honor, part of the problem with

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1 this is that people are not fully expounding on

2 statements in e-mails. No one will write out tax

3 evasion every time they're talking about tax evasion.

4 Once they talk about it, they might talk about evasion.

5 THE COURT: All right. Then the word "evasion" is

6 fine.

7 Fraud?

8 MR. BRIN: Yeah, that's -- it's part of the case,

9 your Honor, for the same reasons. The tax fraud is

10 part of what -- part of the defamation case.

11 MR. ARMSTRONG: It's pretty broad, Judge.

12 MR. BRIN: Well, it's literally a part of the

13 accusation.

14 THE COURT: Just the word "fraud"?

15 MR. BRIN: Well, tax fraud is claimed, but it

16 could be fraud, fraudulent. That's why there's an

17 asterisk. Your Honor, to do the search with an

18 asterisk does not provide any further burden, and

19 certainly they're going to have to go through the

20 results anyway.

21 THE COURT: Further documents. No, just the word

22 "fraud."

23 Lost work, lost business?

24 MR. BRIN: Those go to damages, your Honor. I

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1 wish they would just concede they have no actual

2 damages and then I don't care.

3 THE COURT: All right. Not hire?

4 MR. BRIN: If they not hire the firm again, lost

5 business.

6 MR. ARMSTRONG: Are these -- I'm sorry, Judge. I

7 didn't hear a ruling on lost work and lost business,

8 and maybe you're going to lump it together with not

9 hire.

10 THE COURT: Overruled, overruled. Not hire, I

11 guess overruled. Damage, sustained. Lost fee. Lost

12 fees?

13 MR. BRIN: It would be to go to lost fees. I will

14 waive all of these if they will concede they have no

15 actual damages.

16 THE COURT: If that's going to be the claim, then

17 lost fees is overruled.

18 What's Cor?

19 MR. BRIN: Cor, it's my client's name from Cor

20 Strategies.

21 THE COURT: All right. Obviously I already ruled.

22 Rais, what's that?

23 MR. BRIN: Let's take a look, shall we?

24 THE COURT: Sustained.

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1 MR. BRIN: I got to take a look at the list. I'll

2 waive it. How is that? Make it easy. I can't find

3 it. It doesn't matter.

4 THE COURT: Election.

5 MR. BRIN: Well, this was about an election, your

6 Honor.

7 THE COURT: Yeah. Isn't Mr. Grasso kind of a

8 career politician?

9 MR. BRIN: Well, he is currently still the mayor

10 of Burr Ridge and this was about the mayoral run for

11 Burr Ridge, so as part of our appeal is that this

12 involves a campaign. This was about a campaign, so

13 election is --

14 MR. ARMSTRONG: But he certainly has run in many

15 elections that have nothing to do with --

16 MR. BRIN: Yes.

17 MR. ARMSTRONG: -- and been a part of elections

18 not as a candidate. So there could be 20 or 30

19 elections that he's been a part of.

20 THE COURT: All right. When was this -- election

21 starting with a start date. Give me a start date,

22 Mr. Brin, that you can live with.

23 MR. BRIN: Wow. Well, election would have to -- I

24 would -- pardon my ignorance. The mayoral term is four

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1 years, correct, Mr. Armstrong?

2 MR. ARMSTRONG: I believe that's correct, but I'm

3 not certain.

4 MR. BRIN: Okay. So I can't imagine these

5 campaigns start more than two years ahead of that time

6 to stand for election. So the word "election" going

7 back two years prior to the actual election date would

8 probably work with that word.

9 THE COURT: And when are we ending it?

10 MR. BRIN: Well, until now. He hasn't stood for

11 that many elections since then. I think the complaint

12 is 2019.

13 THE COURT: All right. Mailing list, overruled.

14 Lost client, overruled. Real estate, sustained. And

15 tax is good enough.

16 Sex?

17 MR. BRIN: You had asked me to work with my

18 co-counsel on putting together a list and so this

19 pertains to the claims particularly in their matter.

20 MR. LOTUS: Regrettably, we have these issues

21 related to the truth or falsity of these statements.

22 THE COURT: All right. And the statements are

23 with respect to one person, correct?

24 MR. LOTUS: I'm trying to remember. There was

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1 a -- well, the Nextdoor page that Mr. Williams was

2 associated with said something like why don't you ask

3 Gary about his affairs.

4 THE COURT: All right. Affairs is in there. What

5 about -- look.

6 MR. ARMSTRONG: These are all covered by other

7 terms, I believe, your Honor.

8 THE COURT: I can say -- I can -- I can see the

9 relevance of sex as it pertains to whoever it is that

10 Mr. Mottl accused Mr. Grasso of having an affair with.

11 But let's just say Mr. -- theoretically or -- let's

12 just say Mr. Grasso had sex or affairs with other

13 people that are not -- had nothing to do with this. I

14 don't want him to have to disclose this. What about

15 communications with his wife or, you know, what if --

16 MR. LOTUS: Your Honor --

17 THE COURT: -- one of his buddies sent him

18 something?

19 MR. LOTUS: This is a bit -- it's obviously --

20 this is obviously delicate and in a different world we

21 wouldn't be fighting over this type of issue. I try to

22 be sensitive but at the same time pursue facts that are

23 going to be -- I have to put in truth as a defense as

24 well just as he has to prove falsity as an element

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1 and --

2 THE COURT: Let me ask Mr. Armstrong --

3 MR. LOTUS: Your Honor, obviously it's going to be

4 your call on where the line is, but I just want you to

5 know I don't kind of gratuitously go into these things,

6 but that's what a big piece of this case is about.

7 THE COURT: Understood. And I'll say it again.

8 Some people would do that. Some lawyers would, in

9 fact, do that to harass and embarrass, and I don't

10 think for a second, as I said, that any of you would do

11 that.

12 Mr. Armstrong, what are defamatory

13 allegations regarding sexual behavior?

14 MR. ARMSTRONG: There's nothing specific about

15 sexual behavior. The defamatory allegations are that

16 he had an affair and then he had a child out of

17 wedlock.

18 THE COURT: Okay. Both of which are defamatory if

19 untrue?

20 MR. ARMSTRONG: Correct. There isn't anything

21 specific -- I mean, you know, obviously the implication

22 that he had a child out of wedlock, obviously that

23 implies sex, but there's nothing specific about sexual

24 activity other than a child -- an affair and a child

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1 out of wedlock.

2 And, you know, the other problem with this is

3 it could capture -- you know, it could capture

4 obviously client information or other case information

5 that may involve stuff that has nothing to do with

6 this.

7 THE COURT: I'm not concerned with that. That

8 would be subject to a protective order. I'm concerned

9 about, you know, what if -- what if Mr. -- with all due

10 respect, what if Mr. Grasso spends three hours a day

11 watching porn. Will that pop up on his computer, sex?

12 It might.

13 This is too invasive. I'm not going to allow

14 it. I understand the relevance. I'm open to a

15 compromise, a string of some sort. I'm open to a

16 compromise if somebody would suggest one. That's just

17 way too broad, way too invasive. That one, not a

18 chance.

19 MR. BRIN: Your Honor, if I -- if I may, a lot of

20 these things, even the ones that you put in, are going

21 to generate lots of stuff that no one cares about, that

22 may be one way or another troublesome to one party if

23 it's discovered. But there's a reason that we have put

24 into place several layers of review before any

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1 co-defendant sees any of this, and to exclude a term

2 that is so specific that either is going to be

3 100 percent on target or 100 percent off the mark.

4 There's no -- there's probably no middle

5 ground on that particular term. It's probably going to

6 invalidate a lot of these terms. And I don't know

7 that -- look. We can't account for misfeasance in

8 using things to discuss in someone's personal life, but

9 because of the accusations, that word is very specific

10 and very tied to this case.

11 MR. ARMSTRONG: Judge, there's never been any

12 allegations specific to sex in the case, either in the

13 complaint or in discovery.

14 MR. BRIN: Well,adultery. I mean, there had to be

15 sex for that, right, with a kid out of wedlock? I

16 don't mean to argue co-defendant's case, but I remember

17 biology pretty well. That's how it works.

18 MR. LOTUS: Judge --

19 MR. ARMSTRONG: And it's already covered by the

20 other terms about -- you know, it's already covered by

21 the other terms. If we assume Mr. Brin is correct,

22 it's already covered by other terms, Judge. It's

23 just --

24 MR. LOTUS: Do I understand the process correctly?

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1 So say you did the search and we used some terms that

2 could conceivably produce embarrassing but irrelevant

3 things about Mr. Grasso or others. They wouldn't be

4 responsive or relevant. So is there some filter here

5 that, you know, counsel would look through and say

6 well, this is really about Joe Smith and his divorce

7 case, we don't want that. And obviously we don't care

8 about that.

9 And so where does that review occur? And if

10 it were to occur in house with plaintiff, we'd never

11 see it because it's not responsive. And if it were to

12 occur among us, we could agree to some -- some

13 confidentiality agreement whereby anything that was

14 produced that was irrelevant to the case, we'll give it

15 back or we won't use it, we don't want it.

16 So my question is -- it's a genuine question

17 because I don't -- Mr. Brin has more experience with

18 this type of electronic review than I do. But it seems

19 to me that we could resolve this through the review

20 process rather than forgo it at the outset. Because

21 either there will be something pertinent to our defense

22 of these counts or not. If there isn't, we don't care.

23 If it picks up lots of things that have to do -- I

24 don't know whether Mr. Grasso has a divorce practice,

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1 but if he did, some of this stuff could come up because

2 it could -- have to do with those communications. We

3 don't want that. I don't think it's responsive. Maybe

4 it wouldn't be produced at all.

5 So maybe we can -- someone could tell us

6 about what the process would be to cull that useless

7 stuff out. If it occurs on our end, then that burden

8 is on us. We'll do it and we're not going to do

9 anything with those unresponsive things other than put

10 them in the bin where they go because we don't want

11 them.

12 THE COURT: As far as I'm concerned, Mr. Armstrong

13 is only permitted to withhold documents for which he's

14 claiming a privilege, and he's going to provide a

15 privilege log. He's not the gatekeeper of determining

16 whether this is relevant or that's relevant. That

17 would be inappropriate.

18 MR. LOTUS: Okay. So we would do that, in which

19 case let's say that there were 10,000 documents that

20 somehow have to do with some sensitive search term that

21 could be embarrassing to somebody. It would be on us

22 to go through it all, figure out that maybe none of it

23 has anything to do with the case, and then it's all

24 irrelevant stuff that came up in the search.

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1 THE COURT: Here's -- here's my compromise. What

2 is it -- what is it that's getting searched? The

3 computers and the cell phones as well or just

4 computers?

5 MR. BRIN: All of it, your Honor. We have asked

6 for all electronically stored information, so cell

7 phones, several different servers where multiple

8 e-mails and texts have come from. So anything he's

9 got.

10 Look. Just like Mr. Lotus had indicated, we

11 want the world of information on this so we're not

12 surprised later by anything.

13 THE COURT: All right. So any e-mails or texts

14 only, any e-mails or texts with that search term is

15 fine. I'm limiting it to that.

16 MR. LOTUS: Thank you, Judge.

17 THE COURT: Son, daughter, wow. Mr. Armstrong,

18 does your -- I believe your client has children?

19 MR. ARMSTRONG: Yes. Five, I believe, if I'm

20 correct. Six. Six.

21 MR. BRIN: Judge, again, I will concede this is --

22 look. The allegations are what they are, and

23 unfortunately when you allege -- when there's

24 allegations that it's defamatory because he's alleging

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1 children out of wedlock --

2 THE COURT: All right. Mr. Armstrong --

3 MR. BRIN: -- it's sort of limited to pronouns.

4 THE COURT: I'm going to allow -- I'm going to

5 allow those final three unless, and this is where as an

6 officer of the court I'm going to rely on you. If

7 those three search terms are in reference to one of

8 Mr. Grasso's six children, those do not have to be

9 produced.

10 Now, that said, if Mr. Grasso by chance, you

11 know, decides hey, I better come clean, this is

12 actually true, I had a kid out of wedlock, I'm going to

13 tell -- I'm going to tell my children, that's a

14 different story. But if it is nothing to do with that,

15 I'm not -- there's no way you guys are pouring through

16 private e-mails between Mr. Grasso and his children.

17 That's way too far.

18 MR. BRIN: And I would agree with you and I think

19 Mr. Lotus would too.

20 MR. LOTUS: Absolutely.

21 MR. BRIN: And I don't think we want that.

22 THE COURT: All right. Good.

23 MR. LOTUS: And I don't want it --

24 MR. BRIN: But we have no other way to exclude it.

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1 MR. LOTUS: I don't want it substantively. I

2 don't want to spend our time on it.

3 THE COURT: Okay.

4 MR. LOTUS: And, you know, Judge, we're into each

5 other's personal business enough already. I sure don't

6 want to get into any more.

7 THE COURT: All right.

8 MR. BRIN: Judge, I believe there's one issue

9 remaining that Mr. Armstrong had raised on the cost of

10 doing the search. And, again, I will fall back to just

11 because a party has a lot of records, it doesn't give

12 them the right to foist the cost of their discovery on

13 to someone else. That's just not how it works.

14 THE COURT: Let me -- let me ask you a question.

15 MR. ARMSTRONG: We're now forced to --

16 THE COURT: Let me ask a question. Let me ask a

17 question. Again, given my admission before we even

18 started, I considered that -- and in my prior practice,

19 for example, my firm didn't do this, but I've been

20 involved in cases where I've asked somebody to produce

21 medical records, for example, and they're 10,000 pages.

22 They said okay, tell me what copy service to send them

23 to and you can pay for them.

24 So this is really no different than a copy

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1 service. In this case it has to be a computer forensic

2 person and the documents that have to be copied and

3 produced is really no different than the records.

4 So that's my analogy. I have no idea if I'm

5 correct. I don't know what the case law is on it. So

6 Mr. Brin, what is it?

7 MR. BRIN: So while the case law -- this is not

8 something I searched in the case law, but what is

9 common practice is you're exactly right. And if I

10 wanted those documents printed out, then I would ask

11 for them to be sent out and I will even pay for the

12 medium, the thumb drive, the whatever else, the gigs.

13 It will cost me all of 40 bucks, and they just copy and

14 paste on to those drives. They download on to the

15 drives.

16 However, even with the medical records, the

17 hospital doesn't say gosh, we have a million pages of

18 medical records and we can't quite figure out what our

19 patients are, so we're going to -- you have to pay for

20 us to go through our medical records so we can generate

21 ones so that we can have them sent out to be printed.

22 And instead, as you know, the hospital says we have

23 10,000 pages of this medical record, if you want it

24 copied, tell us where to send it.

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1 I'm happy on the back end to pay for the

2 media and the copying, but it's up to them to perform

3 the search.

4 MR. ARMSTRONG: Judge, that's not an appropriate --

5 THE COURT: Let me give you -- let me give you one

6 more example. Some of these hospitals -- and, you

7 know, I don't know if you heard. I'm not going to

8 mention the hospital or the law firm or what's been

9 going on in Cook County of late, but apparently it's a

10 widespread practice.

11 But let's say I've got a med mal case and the

12 defense wants an audit trail. Some hospitals tell

13 me -- I don't necessarily buy it, but some people tell

14 me that the information from their vendor is that the

15 vendor considers any information to be proprietary in

16 nature, and in order to produce the audit trail, they

17 have to bring in a vendor, pay that vendor by the hour

18 to produce it, and they want me to assess that to the

19 plaintiff.

20 MR. BRIN: Uh-huh. And I -- my apologies.

21 THE COURT: And I don't believe it and I've never

22 done it.

23 MR. BRIN: And so, your Honor, I would suggest

24 that the audit trail is separate data. That's called

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1 metadata. That has to be -- and PDFs and other

2 documents have metadata. If you ever look at a

3 Microsoft Word that you may have created the document,

4 you can actually see in your file -- in your File

5 Explorer when it was created.

6 THE COURT: Right. I got it.

7 MR. BRIN: That is metadata. The metadata, the

8 audit trail, where it came from, who sent it, where

9 it's locked down and everything else, that needs to be

10 extracted. This other stuff does not. It's word

11 searches. You can do a -- right now you can go back to

12 your chambers and on your own e-mail, put in a word at

13 the top and it will give you a word search. It is no

14 different --

15 THE COURT: Fair enough.

16 MR. BRIN: -- based on the size of the server or

17 anything else. You can word search it and you get a

18 number of hits and if they want it extracted, I'll pay

19 for the medium to extract it.

20 MR. ARMSTRONG: Judge, here's the problem. It's

21 not the medium. We don't care about the cost of a

22 thumb drive. Mr. Grasso can't do this, his staff can't

23 do this. This requires hiring a professional to do

24 this who's going to charge hourly to do this, and it's

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1 probably going to require them to do it -- either it's

2 going to interrupt his practice or they're going to

3 have to somehow duplicate his devices, take it to their

4 equipment, do it on their equipment. Otherwise his

5 office is shut down for however long it takes to do

6 this.

7 And, you know, just like you said, this is no

8 different from sending a subpoena to Record Copy

9 Service and Record Copy can send everybody out and say

10 you want copies, you pay for it. He wants these

11 searches, he can pay for it.

12 THE COURT: Well, let me ask a question.

13 Mr. Brin --

14 MR. BRIN: Yes, your Honor.

15 THE COURT: Would you -- would you rather an

16 independent professional who can be deposed -- would

17 you rather an independent professional do this or would

18 you rather Mr. Grasso and, you know, his staff do it?

19 Aren't you going to get better results by a

20 professional?

21 MR. BRIN: I want them to do it. I want them to

22 search their records. The independent professional is

23 going to do exactly what H & R Block does. Anybody who

24 goes and does their taxes, not to impugn their

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1 professionalism, but there's a big old tag line saying

2 our stuff is only as accurate as our clients gave us

3 information.

4 THE COURT: All right.

5 MR. BRIN: So the independent professional is

6 going to say I searched everything they gave us, which

7 say --

8 MR. ARMSTRONG: If Mr. Grasso does it himself,

9 it's going to come with a huge caveat that he is not an

10 IT professional, he doesn't know IT. He'll do the best

11 he can, but he's not making any promises or

12 representations about the completeness of it because he

13 doesn't know -- you know, that's not what he does.

14 THE COURT: Let me stop -- let me stop you for a

15 second, guys. Let me -- let me do my 11:00 o'clock.

16 They've been patiently waiting at least 20 minutes.

17 Let me -- let me do that.

18 Consider this, Mr. Brin. Consider if I order

19 the defense to pay for it or split the cost, just

20 consider this. I don't need to hear this. Let me do

21 this first. I let you select the IT person that does

22 it. Now you know you're going to get accurate results

23 and nothing is going to be withheld. So think about

24 that. Let me pass the case for a moment.

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1 MR. BRIN: Okay.

2 (Whereupon, the Court attended to other

3 matters on the call, after which the

4 following proceedings were had herein:

5 THE COURT: Recalling Grasso vs. Mottl, 19 L 723.

6 My apologies. I do need all the attorneys to identify

7 themselves one more time.

8 MR. LOTUS: Brian, you're on mute.

9 THE COURT: Mr. Armstrong, you're on mute.

10 MR. ARMSTRONG: Can you hear me now?

11 THE COURT: Yes.

12 MR. ARMSTRONG: Thank you. Brian Armstrong,

13 A-r-m-s-t-r-o-n-g, for plaintiff Gary Grasso.

14 MR. LOTUS: Mike Lotus, L-o-t-u-s, for defendants

15 Zach Mottl, David Williams, and Zax Pac.

16 MR. BRIN: And Keith Brin, B-r-i-n, on behalf of

17 defendant's Cor Strategies and Collin Corbett.

18 THE COURT: All right. Mr. Brin, we left it with

19 a hypothetical proposal. What are your thoughts?

20 MR. BRIN: Yes. So in general, hear my thoughts

21 and then if I may, I'll be very brief on it and then

22 sort of get back to the proposal.

23 The quick answer to the proposal is I don't

24 know. But I would suggest that in principle, going

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1 back to your hospital analogy, no hospital, as far as I

2 know on record, would ever be so bold to suggest that

3 in a medical malpractice claim that the plaintiff cost

4 shift or split the cost of just searching their own

5 records. And that's what we're talking about. We're

6 not talking about printing. We're not talking about

7 copying. We're talking about searching, No. 1.

8 No. 2, to do so would actually thwart and

9 potentially significantly kill the cost of suing any

10 major corporation. If you sue an insurance company or

11 GM or any company, who knows, that has major voluminous

12 records electronically, and all the companies are now

13 moving that way to save their own money, this is --

14 cost shifting in litigation would make it impossible

15 for any small plaintiff to do any work.

16 The third, I did a very brief search and I

17 didn't really get anything. I would say that there has

18 been advisements from federal court that looks like

19 they have done some cost shifting in the past, but only

20 as a result of sanctions, not as a result of anything

21 else.

22 So in principle, that is definitely the

23 argument that I would suggest is reasons we shouldn't

24 do it. But in the real, there's some -- a lot of

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1 hypothetical here. Are we talking about cost shifting

2 of running four servers? Are we talking about three

3 servers and two cell phones? Are we talking about one

4 server?

5 Mr. Grasso is not in a huge law firm in the

6 City of Chicago. I'm guessing he doesn't have multiple

7 servers. I'm guessing he's got one server. And I'm

8 guessing his records only go back certain amount of

9 time, in addition to his personal e-mails and

10 everything else.

11 Look. My clients did all of their search as

12 is the co-defendant did all of their search, and we

13 produced information. I can't imagine that

14 Mr. Grasso's stuff is any more voluminous than ours,

15 and yet it took time out of our client's schedule to do

16 it. We wouldn't think of cost shifting against the

17 very principle.

18 So not only is it, I think, against the

19 principle of doing so in discovery, but we're dealing

20 with a hypothetical. I don't even know what we're

21 dealing with here.

22 So before I would commit my client to

23 splitting the cost of any kind, first I would have to

24 understand why this was being leveraged, and the

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1 second, I would have to know what we are dealing with.

2 THE COURT: Mr. Armstrong, let me ask you a

3 question. If I gave you two options, and I'm on the

4 fence here, guys. Like I said, I'm not real sure of

5 the answer. If I gave you the option of Mr. Grasso

6 doing it himself or Mr. Grasso grabbing all of his

7 computers, handing them over to a forensic computer

8 science or IT guy selected by the defense, which would

9 he prefer, and paid for by the defense?

10 MR. ARMSTRONG: Well, I think if it's paid for by

11 the defense, I think he would prefer to have a

12 professional do it because I don't think he's capable

13 of doing it.

14 Mr. Brin, you know, is oversimplifying it.

15 The discovery requests that he responded to didn't

16 include 50 or 70 search terms with wild cards and

17 include every, you know, electronic device that he

18 possesses. This is a whole different ballpark that

19 we're in with this search. And Mr. Grasso is not a

20 technological person. He's not an IT person. As I

21 said --

22 THE COURT: Let me stop. I'm going to do this.

23 MR. ARMSTRONG: If they want Mr. Grasso to do

24 it --

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1 THE COURT: Let me do this.

2 MR. ARMSTRONG: -- we can't -- we don't know --

3 THE COURT: Let me do this. I'm going to put

4 you -- I'm going to try to put you and Mr. Grasso in a

5 breakout room, so go ahead and accept it because I want

6 to know -- I'm inclined to say Mr. Grasso, if he's

7 going to do it himself or hire somebody to do it,

8 that's on him. If he wants the defense -- because it's

9 their request that's being done, if he wants to turn

10 over all this stuff to somebody selected, hired, and

11 paid for by them, I'll consider that as well.

12 All right. When you're in the breakout

13 room -- I'm going to put you in first, Mr. Armstrong,

14 and then come -- is it okay -- do you guys mind if I go

15 into the breakout room with just Mr. Armstrong and show

16 him how to ask for help? Then I'll know they're done.

17 MR. LOTUS: Certainly not, Judge. No objection.

18 MR. BRIN: Of course. No objection.

19 MR. ARMSTRONG: Before you do that, while we're

20 all still here, I apologize for interrupting. We do

21 cite an Illinois case on page 5 of our response of

22 where the courts can --

23 THE COURT: I saw it.

24 MR. ARMSTRONG: -- engage in this cost shift.

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1 THE COURT: Yeah, I know. I saw it. I think

2 that's the only case really out there.

3 MR. ARMSTRONG: The only one we're aware of.

4 THE COURT: All right. I'm just going to show --

5 I'm going to put you in there. We're not going to talk

6 about anything other than all --

7 MR. LOTUS: No worries.

8 MR. BRIN: No objection, your Honor.

9 THE COURT: Okay. I'll be with you in a second,

10 Mr. Armstrong.

11 MR. ARMSTRONG: Yes. Thank you.

12 THE COURT: Go ahead and accept that, if you

13 would.

14 MR. ARMSTRONG: Let me see if I can find it here

15 first.

16 MR. BRIN: No, that was to me, your Honor.

17 THE COURT: Everybody got it. Everybody but

18 Mr. Armstrong ignore it.

19 MR. BRIN: Okay. Very good, your Honor.

20 THE COURT: All right. Mr. Grasso, I'm going to

21 transfer you over there. Go ahead and accept. Go

22 ahead and accept the invitation.

23 MR. BRIN: Your Honor, my apologies. I actually

24 know someone who dabbles in some of this and may

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1 actually be an expert. If I may put myself on mute so

2 I can engage him on the phone just to see what the

3 scope of this might be --

4 THE COURT: Absolutely.

5 MR. BRIN: While certainly not indicative of

6 anything, it may give us some insight.

7 THE COURT: Sounds good.

8 (Off the record.)

9 THE COURT: All right. Mr. Armstrong, anything

10 you want to share?

11 MR. ARMSTRONG: Yeah. So here's what I can share.

12 The universe of electronic devices is one server --

13 according -- based on what Mr. Grasso knows, one

14 server, one phone, one cell phone, one laptop, possibly

15 two laptops depending on when the old laptop was

16 replaced.

17 So what we would suggest we'd like to do

18 is --

19 THE COURT: No iPad or anything? Not an iPad or

20 anything? No iPad or anything like that?

21 MR. ARMSTRONG: No iPad.

22 THE COURT: Okay.

23 MR. ARMSTRONG: Laptops, server, phone.

24 THE COURT: Okay.

 82

1 MR. ARMSTRONG: So what we'd like to do, he has a

2 staff member who he thinks might be able to do the

3 search, so I was incorrect in that regard. He can't do

4 it, but he thinks one of his staff members may be able

5 to.

6 So what we'd like to propose is we'd like to

7 try to do the search on our own with our staff member

8 based on the limited terms that you provided today, let

9 everybody know what the universe of response is. We

10 can let -- you know, maybe it's a thousand responses.

11 Maybe it's 250,000 responses. Then maybe we have to

12 re-evaluate.

13 THE COURT: Fair enough.

14 MR. ARMSTRONG: But I think -- I think that's --

15 you know, we'll at least have a better handle on what

16 the -- what the universe is that we're dealing with.

17 THE COURT: All right. I think that's a good

18 play. All right. Let's give that a shot. How much

19 time do you think, Mr. Armstrong, you need to comply

20 with all of my orders today?

21 MR. ARMSTRONG: Well, I think -- I don't know

22 about my colleagues, but I know I was not able to take

23 everything down, so I think I need the transcript to

24 understand everything that we had today.

 83

1 MR. LOTUS: If I can interject on that point,

2 Mr. Armstrong and I are thinking exactly alike on this

3 technical point. I prepared a request for transcript.

4 I think your Honor, you made numerous rulings over the

5 morning and I'll order it and I think we'll need to

6 refer to that to make sure the order we enter for today

7 is scrupulously correct. I tried to keep good notes,

8 but we had a lot of detail, particularly on this back

9 half when we've been talking about these things.

10 So I'll order it, I'll share it. We will

11 probably get it late tomorrow because I'll order it

12 expedited and we can draft something up during the day

13 on Thursday so we can all agree on it and submit that

14 to be entered.

15 Does that sound okay?

16 THE COURT: That sounds good.

17 MR. ARMSTRONG: Yeah, that sounds fine. And then

18 I guess -- I guess my suggestion would be, you know, I

19 don't know how long this initial attempt to narrow the

20 universe is going to take, but if we come back in

21 roughly two to three weeks, maybe we can report on our

22 status of doing that.

23 THE COURT: All right. So don't -- you don't have

24 to -- you don't have to expedite that transcript.

 84

1 Here's what we'll do. You guys work on -- if we're

2 coming back in two weeks, just have the -- bring the

3 order with you unless you need it -- unless you need it

4 for the search terms. Whatever you guys want to do.

5 MR. LOTUS: Frankly, your Honor, just to make sure

6 I got your rulings precisely correct, and I think

7 that's true for all of the stuff we did today, and

8 moreover, you know what could happen, with all the best

9 will in the world, we're fighting for our clients and

10 we'll have a new judge and we may disagree on just what

11 happened, so I'd rather have the transcript.

12 THE COURT: Okay. So I'm gone the second week --

13 I'm on vacation that second week of May, so that takes

14 us to the week of the 16th, the 16th, 17th or 18th. Is

15 that too far out?

16 MR. ARMSTRONG: I think that's appropriate.

17 MR. LOTUS: That should be okay.

18 THE COURT: All right. Why don't we do May 16th

19 just in case my trial goes that week. I can at least

20 deal with this and then deal with the jury trial.

21 MR. LOTUS: What time are we going to be coming

22 back, Judge?

23 THE COURT: 9:00 o'clock.

24 MR. LOTUS: 9:00 a.m.

 85

1 MR. ARMSTRONG: And should we submit -- we'll

2 submit a separate order just for the status?

3 THE COURT: I'm doing that now.

4 MR. ARMSTRONG: You're doing that now?

5 THE COURT: Yes.

6 MR. ARMSTRONG: Okay. Thank you.

7 MR. LOTUS: So we'll prepare a detailed order with

8 your rulings today for submission to you as soon as we

9 can, Judge.

10 THE COURT: All right. So do one of two things.

11 You can either e-mail it to my assistant or if you're

12 going to do it electronically, make sure you either

13 e-mail her or call her on the phone and let her know

14 it's coming. Otherwise it stays out there. There's a

15 glitch in the system and we don't even know it's out

16 there.

17 MR. LOTUS: I think what we'll do is we'll call or

18 let her know it's coming and send it over that way.

19 THE COURT: Sounds like a plan.

20 MR. ARMSTRONG: Judge, one last thing I'd like to

21 address. Mr. Grasso's -- the episode with Mr. Grasso

22 at the beginning of the court appearance, I know he

23 very much regrets that. Please -- I ask you to please

24 understand, this is a very emotional case for him.

 86

1 He's very frustrated with the whole series of events,

2 and I think he acknowledges that -- you know, while his

3 reactions were not directed or not caused by your

4 comments, he does regret what happened. And I'm going

5 to let him speak some more to it, but the source of it

6 is it's a very emotional case for him, and so I'm going

7 to let him speak, but I would ask you to reconsider the

8 sanction and the fine.

9 THE COURT: I don't need to hear from -- I don't

10 need to hear from Mr. Grasso. I'm not holding -- I'm

11 not holding him in contempt. I'm not fining --

12 MR. ARMSTRONG: He does apologize, Judge.

13 THE COURT: Here's the -- and apology accepted.

14 And I probably owe him an apology. So let me -- again,

15 I won't tell you the name, but for the first time --

16 and I'm sick of Zoom. I mean, I understand it as a

17 litigant. It's more efficient. I'm just tired of

18 Zoom. I'm just sick and tired of it because people act

19 differently and because -- a lot of it is probably

20 because of the lag. You know, you don't mean to be

21 talking over the Court and the Court doesn't mean to be

22 talking over you. It's just kind of like a two-way

23 radio. When someone is talking, it kind of delays it.

24 So here's the point. Yesterday for the first

 87

1 time, it was a big issue, I ruled against an attorney

2 from Tressler's office. That's all I'll say. And as

3 I'm delivering -- and it was a major blow to them, I

4 understand it, and he's giving me one of these for the

5 first time. And it's just ironic that it happened

6 again today.

7 But I did -- I did realize after the fact

8 that he was simply answering a question or saying no,

9 it's not true, whatever somebody else said. It wasn't

10 even directed toward me. So I overreacted and my

11 apologies for that. It's just -- you know, it's really

12 no different than me scolding a -- that normally

13 happens when it's a litigant during a jury trial. And

14 I'm very aware of that and I try to put a stop to it as

15 soon as it begins. So I was sort of in that mode that

16 Mr. Grasso is a litigant and he's making those gestures

17 which would otherwise be inappropriate in front of a

18 jury and arguably at a bench trial. So no apology

19 necessary. I forgot about that. That was just me

20 being a hothead.

21 So no apology necessary, Mr. Grasso.

22 MR. GRASSO: Judge, just let me --

23 THE COURT: I don't need to hear anything. I

24 don't want you to say anything.

 88

1 MR. LOTUS: Judge, mechanically, so you're going

2 to enter an order, Judge, today setting the case for

3 status, and maybe you could say in the order and

4 detailed rulings to come or something or we can just do

5 that. I don't care.

6 THE COURT: Too late. I already entered it.

7 MR. LOTUS: All right, good. We'll do that then.

8 MR. BRIN: Your Honor, just I want to advise all

9 the parties. So if the alternative doesn't work and

10 Mr. Grasso and his staff can't complete the search, I

11 know someone who does these forensic searches often,

12 and he did say that for servers, that you could set up

13 a virtual environment and the person wouldn't have to

14 be there to do it, but for cell phones and other

15 devices, they would actually need physical access to

16 the device. So it would mean either have someone

17 camped out at a per hour rate or the devices would have

18 to be turned over. But, again, it's a per hour charge.

19 And the delay is not in inputting the words for the

20 search. The delay is how long the server takes to

21 compile and return the results.

22 THE COURT: Okay.

23 MR. BRIN: So take it for what it's worth, but

24 that's on the other side of this.

 89

1 THE COURT: All right. So I will tell you

2 understanding the sensitive nature of computers and of

3 cell phones, that before -- assuming -- well, if

4 Mr. Grasso's people are able to do it, then it's a moot

5 point. But in the event that we have to go the other

6 route, Mr. Brin, you've got to give a CV or a resume or

7 something to Mr. Armstrong before Mr. Grasso turns over

8 either access or physical control of his electronic

9 devices. That's a lot of sensitive stuff in there and

10 Mr. Armstrong is going to have to have an opportunity

11 to be able to at least do an investigation to make sure

12 it's all on the up and up. Okay?

13 MR. BRIN: And I would suggest confidentiality

14 agreements as well, your Honor. I'm very sensitive to

15 the information.

16 THE COURT: 100 percent. And I don't know --

17 again, you know better than me. It would seem to me

18 that a forensic examiner must have to sign not only

19 confidentiality agreement, something indicating that he

20 won't do anything else other than what's been directed.

21 There's got to be something because, you know, I don't

22 know how well known Mr. Grasso is to the general

23 public, I really don't know, but I could see maybe a

24 less than -- a less than honest forensic person wanting

 90

1 to go through all the files and see what's in there.

2 So yeah, we'll deal with those logistics if

3 and when it becomes necessary, but I've got a feeling,

4 you know, if it was my stuff, I don't want people

5 poking around in it. So my guess is that plaintiff is

6 going to do whatever is necessary so as to not have

7 other people poking around in there. But if it comes

8 to that, then it comes to that. All right?

9 MR. BRIN: Very good, your Honor.

10 MR. ARMSTRONG: Your Honor, and just not to beat a

11 dead horse, but just to make sure I'm clear and

12 Mr. Grasso is clear, there is no $250 sanction,

13 correct?

14 THE COURT: No, there's not. And you know what?

15 That doesn't even need to be in an order. I don't want

16 anything in an order even indicating that was even

17 said, unless you want it.

18 MR. LOTUS: Just to show how we can get in trouble

19 even live, I appeared once presenting a motion before

20 Judge Pallmeyer in federal court. She didn't like

21 something about my demeanor or my head movement, and

22 she said Mr. Lotus, I can rule on this motion right

23 now, how would you like that? I said, your Honor, I'd

24 prefer we just go ahead and brief it, and I tried to

 91

1 extract myself from the alligator's jaws. So it

2 happens to all of us.

3 THE COURT: Yeah, well, I appreciate that. And

4 just I do understand the contentious and emotional

5 nature of the case and sometimes my mouth precedes

6 before my head. So I apologize for that.

7 So everybody be safe. That order is entered

8 and it's simply -- it's very simple, kicked it to that

9 day for status on ESI and written discovery. Okay?

10 MR. LOTUS: Thank you, Judge.

11 MR. ARMSTRONG: Thank you, Judge.

12 THE COURT: Guys, have a good day. Mr. Grasso, be

13 safe.

14 (Which were all of the proceedings had

15 in the above-entitled matter.)

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1 IN THE CIRCUIT COURT OF THE 18TH JUDICIAL CIRCUIT

2 DU PAGE COUNTY, ILLINOIS

5 I, KAREN SHALES, certify the foregoing to be

6 a true and accurate transcript of the computer based

7 digitally recorded proceedings of the above-entitled

8 cause to the best of my ability to hear and understand,

9 based upon the quality of the audio recording, pursuant

10 to Local Rule 1.03(c).

11

12

13

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16

17 Official Court Reporter

Eighteenth Judicial Circuit of Illinois
18 DuPage County
CSR License No. 084-004177
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Karen R. Shales, CSR #084-004177