MR. TALARICO: -- expound a little bit. I wasn't
aware that a 2-619 motion had been up. It was denied by
this court, but denied with the ability to get -- to
bring it again. All I've seen when I came into the case
was a decision saying, you know, denied, so at that
point in time I did not, let's say, approach the issues
of the statute of limitations or the statute of repose.
I think those two issues help clarify the 502 argument.
The 502 argument is what -- what information
can be gathered, and I think my responses to that would
simply be 502(b) and 502(a) have been complied with.

THE COURT: Defense counsel?

MR. FLYNN: I'm a little confused, Judge. There is
no pending 619 motion. That was ruled upon years ago.
This is simply a motion to compel and, you know, again,
looking back, I didn't attach every discovery answer
that Mr. Dulberg provided because there were many and
there were issues with signature pages throughout
written discovery. But here, the overarching
supplemental request, Exhibit E, I believe it is, that
was served on July 2 has not been answered. It's not
been objected to. It's untimely at this point, and,
again, it's clear that the discovery of the malpractice
and damages has been placed at issue. So we're entitled
to explore that discovery.
The testimony of Mr. Dulberg at his deposition
makes it clear that the only basis to toll any statute
of limitations was the December 2016 communications with
Tom Gooch and if he's not going to produce those, he has
no other basis to toll the statute and, as such, the
case should be dismissed. We'll bring the appropriate
motion. But you can't have it both ways using the
privilege as a sword and a shield.

THE COURT: Plaintiff's counsel, with respect to the
latter, your comment?


MR. TALARICO: I guess I'm not clear on what counsel
was saying. I respectfully say that we have complied
with the -- the 502(b) was inadvertent within the
deposition and the attorney at the time, who was -- I
think her name was Williams, Julia Williams, objected
and objected on a continuing basis for any of the
questions regarding that information. Counsel has not
brought a motion to have this court decide whether or
not that was appropriate, but he had answered under the
continuing objection by Miss Williams that this was a
protected attorney-client discussion.
As to the 502(a), the intentional disclosure,
that was, in my estimation -- and I hope the court
agrees -- that was done in the pleadings, in the
complaint, but it was done in the -- I wouldn't say in
the alternative. I would say it's additional
information.
THE COURT: What specifically are you referring to
when you say it's additional information? What was
additional information?
MR. TALARICO: The continued comments about when --
when he was aware of -- and when the statute would begin
to run, the two-year statute of limitations, as to the
filing of a complaint for malpractice. Within that
section, I have each one numbered, but at first the
comments -- the situation was when the arbitration, the
binding arbitration, matter was decided, and it was
decided in such a way that my client lost close to over
$200,000 because the only other person that was in the
lawsuit had a maximum insurance policy of $300,000. At
that point in time -- And he alleged that in the
complaint, in the first amended complaint, and the
second amended complaint, all of which I wasn't party
to, but the words are in there, the allegations are in
there. I believe that's when the statute of limitations
begins to run. Further --
THE COURT: He references -- he references in his
complaint -- I assume we're talking about the
allegations in the complaint.
MR. TALARICO: Yes.
THE COURT: And he references in the complaint
learning information from the expert, if I've read this
correctly. Is that a fair statement?
MR. TALARICO: That is one of the allegations, yes.
THE COURT: So why can't -- why isn't that report or
communication going to be turned over?
MR. DULBERG: It is. It already is.
MR. TALARICO: Judge, it's my position that that is
not relevant to the question. The question is, when did
-- when did he become aware, when does the statute start
running. And the answer I believe under Illinois law is
it begins running when he knows of his injury, and the
injury took place with the binding arbitration award;
not before, not after. So I'm saying --
THE COURT: And I guess I -- you're losing me
because I -- I don't understand how a binding
arbitration award is going to disclose to anybody
whether or not malpractice had been -- had taken place.
The -- your client -- I don't know if you can
see him. He keeps raising his hand. I'm ignoring him
because he has an attorney. I'm going to -- I'm going
to focus on you.
But whether or not there was an award for X
dollars or no dollars, that doesn't tell me anything
about whether -- whether he knew or should have known at
that point. That just told him what those people --
MR. DULBERG: May I clarify on the record.
THE COURT: Mr. Dulberg, you have an attorney.
You've elected to have your attorney speak for you.
MR. DULBERG: He's not not lead attorney
(indiscernible).
THE COURT: I'm going to limit it to it. I
recommend that you limit your conversation or comments
to him out of fear that you may say something that could
be harmful to your case.
MR. DULBERG: I understand.
THE COURT: In any event, the complaint identified
something the expert said as establishing knowledge on
behalf of Mr. Dulberg for the first time of the alleged
malpractice. So the complaint by its very language
tells me that that communication is relevant to the
issue of the discovery rule. I don't have a problem
with doing an in camera inspection of that particular
communication, but I don't see how we avoid it being
relevant.
MR. TALARICO: Judge, I think in all three -- the
original complaint, the first amended complaint and the
second amended complaint, all three plead the injury
happening with the -- I can't think of the word -- but
with the binding arbitration statement.
It thereafter talks about other matters and
each time the drafter of that complaint, the first --
I'm sorry, the original, the first and the second, adds
in different aspects which I believe are really
irrelevant. I think the focus is on when the injury
occurred. The injury I believe occurred when the
binding arbitration award was granted and I think that's
when the statute of limitations should run.
THE COURT: But he's entitled to discovery on that.
If you're claiming a particular communication
established knowledge for the first time, he gets to --
defense gets to see that, because you've linked it to a
unique event and he gets to challenge whether that's
plausible, so you don't get -- you don't get to make
that decision for him.
MR. DULBERG: If I may, I'm going -- I'm going to
clarify here.
THE COURT: Mr. Dulberg, you have an attorney.
MR. DULBERG: Yes, I do. And I'm going to clarify.
THE COURT: I'm not asking you to clarify.
MR. DULBERG: The event -- the event, okay, was a
series of events --
THE COURT: Counsel, --
MR. FLYNN: Judge, I'm going to object to this as
well.
MR. DULBERG: -- (continuing) prior to meeting
Mr. Gooch.
THE COURT: I'm ignoring what's being said.
Mr. Talarico, do you have a comment?
MR. TALARICO: Yes, we -- Mr. Dulberg, I believe,
and our position is, the statute of limitations begins
to run on the date of the arbitration -- the binding
arbitration, award.
THE COURT: And you could be right, but the
discovery rule involves facts and the issue becomes
whether you knew or should have known. You, by the
complaint you've inherited, established that knowledge
came as a result of a particular event and I think it --
by virtue of that allegation, you've made the facts
surrounding that event relevant to the investigation of
your claim of the discovery rule, its application, that
I can't separate that out. If you say that
communication gave you knowledge for the first time,
then the defendant gets to explore that.
MR. DULBERG: That's not what it said.
THE COURT: Your subjective interpretations aren't
going to be controlling.
MR. TALARICO: Judge, I'm not relying on that. All
I'm saying is that, with all due respect, that is when
he had the knowledge, that is when the statute of
limitations begins to run, and that information has been
part of the court file long before it became part of
this matter.
THE COURT: My reading of the complaint referenced
something regarding an expert report and perhaps a
letter from former counsel.
MR. FLYNN: Judge, may I clarify that.
THE COURT: Go ahead. Yeah.
MR. FLYNN: Thank you.
You know, the plaintiff has attempted I think
to use both, a report that he received from a chainsaw
-- so-called chainsaw expert, so a liability expert,
relative to the underlying case. There's been some
confusion with respect to his pleading and reliance on
that report. However, what I clarified at his
deposition is that he relied on a legal opinion to toll
the statute of limitations in this case. It's that
legal opinion in December of 2016 which informed him of
the malpractice.
Again, he wasn't very specific. I tried to
question him about each and every violation of the
standard of care, breach of the standard of care, and
when he found out about it; and you can read the whole
deposition, but his answers are evasive. They've been
evasive in his original interrogatory answers. We've
covered the waterfront with every possible question and
interrogatory and production request we could, but it's
clear that he is relying on a legal opinion.
Now, he's not very specific about what that
legal opinion is, and maybe there isn't anything in
Gooch's records or in the emails and whatnot to and from
Gooch and Dulberg, but, in any event, that's what he
testified to, and so it's our position we should be
entitled to those legal opinions, whatever they are.
THE COURT: I thought -- and obviously I didn't read
he entire deposition. I thought there was one letter
that really covered it, based on what I read. Is that a
fair statement?
MR. FLYNN: I'm not sure if that's accurate, Judge.
I think that -- I think he's pinpointed the time period
to December of 2016, but I think he also testified that
there was regular email communication between Dulberg
and Gooch, you know, --
THE COURT: In any event, I am going to direct
production of all those communications on which the
plaintiff is basing his claim of the applicability of
the discovery rule; and that's a little broader than I
first intended, but given the nature of this discussion,
it sounds like it's more than just a couple of
documents. It might be several of them.
I will also have those items produced to me for
an in camera inspection so that I can determine to what
extent that they are disclosing information relevant to
our investigation into the discovery rule, because while
 agree the defendant should be allowed to investigate
that issue, that doesn't mean he gets the benefit of
prior counsel's work product outside of the discovery
rule issue.
Does that make sense?
MR. FLYNN: So I do understand your ruling. I would
just ask that it be specified also, though, to the
communications with Mr. Gooch because in anticipation of
how this may be produced to Your Honor, if all they
produce is this chainsaw expert report, then we haven't
made any progress
THE COURT: There is definitely something from
Mr. Gooch, and if I'm not given something from
Mr. Gooch, that will be a red flag.
MR. TALARICO: Judge, if I might.
THE COURT: I'm sorry?
MR. TALARICO: If I might speak.
THE COURT: Yeah.
MR. TALARICO: Judge, my position is that the
binding arbitration award document which has been part
of the court file, we believe long before I was in this
case, is the day that my client knew that he had an
action and, before that, it was premature by Illinois
law. At the time when the award was given, and the --
THE COURT: I'm not buying that. The arbitrator's
award gave you insight as to the value. Where you lose
me is -- Well, let me rephrase that. It gave you their
insight as to what they perceived the value of the case
to be. It did not tell you whether or not you could
have known that there was a viable cause of action
against another defendant --
MR. DULBERG: (Indiscernible) that.
THE COURT: -- because, again, it's you knew or
should have known whether --
MR. TALARICO: Of the injury, --
THE COURT: -- there was another cause of action
against that --
MR. TALARICO: -- a financial injury.
THE COURT: And I fail to understand how an
arbitrator's award would explain that because I can't
imagine -- I certainly don't -- I'm not an arbitrator, I
don't know what they put in their decisions, but I would
be surprised if they spend a lot of time telling you
about people you could have sued but for malpractice, so
the issue for me is knew or should have known, and I am
going to direct production of those documents.
MR. TALARICO: Judge, my one comment?
THE COURT: Yeah.
MR. TALARICO: So it's Illinois law on that matter
and a very recent case talked about specifically when
the statute begins to run, but I will -- It's called
Suburban Real Estate Services, Inc., versus Barus -- I'm
sorry, and Barus versus William Carlson. The cite --
THE COURT: But that's a different argument. That's
a rule -- that's an argument related to the
applicability of -- or, in my analysis, of how the rule
applies to the circumstances that we have. It doesn't
address the issue of whether you should have known of
the existence of the cause of action, and the
information I have is that you did not and could not
have known about the cause of action until the
disclosure from the expert or from Mr. Gooch, and if
we're going to explore that issue, you've got to produce
that. You've put those items into evidence or at issue,
so defense has a right to see them.
MR. DULBERG: May I.
THE COURT: Anything else?
MR. DULBERG: Yeah, yeah. I'd like to comment.
You're not going to let me comment?
THE COURT: Mr. Dulberg is attempting to speak. I'm
not -- I'm neither listening nor inviting him to speak.
MR. DULBERG: I will speak on the record.
THE COURT: So I will --
MR. DULBERG: It's not about when we knew or should
have known of the cause of action.
THE COURT: Sir, --
MR. DULBERG: We certainly knew or should have
known --
THE COURT: Sir, --
MR. DULBERG: -- of the injury.
THE COURT: Mr. Dulberg, do not presume to tell me
what the law is. All right? You understand your place.
MR. DULBERG: Yes.
THE COURT: Do not tell me what the law is. I will
make that decision. I've instructed you numerous times
not to talk, and yet you feel the need to express
yourself. You have an attorney. Your attorney has ably
represented you, but I get to make a decision regardless
of what your personal thoughts are. So we will go back
to my discussion. Forgive the outburst, but I have
invited him not to speak and that wasn't acceptable to
him.
So, in any event, how long, Mr. Talarico, do
you need to produce this information?
MR. TALARICO: Judge, I'm not absolutely sure.
Whatever the court says I produce I'll produce within
28 days.
THE COURT: Okay. Twenty-eight days is fine with
me.
Mr. Flynn?
MR. FLYNN: Twenty-eight days is fine, Your Honor.
I would also request that, in addition to the documents
being produced, that the actual discovery request be
responded to and any interrogatories be amended --
THE COURT: You need a privilege log certainly as to
the documents, and so I'm going to direct that you be
given a privilege log because they are claiming
privilege as to these items. I assume there hasn't
previously been one. Is that true?
MR. FLYNN: That is true.
THE COURT: All right. So you're entitled to the
privilege log.
As far as the other interrogatories are
concerned, Mr. Talarico -- How many interrogatories do
we have outstanding?
MR. FLYNN: The -- I think what we have is some
interrogatories that weren't completely answered in the
first place. It's probably a handful, Judge, but then
there are seven or eight requests for production that
simply weren't responded to. Those are the subject of
this motion.
THE COURT: And are they covered by the privilege
log, do you think?
MR. FLYNN: Well, I think that first we need to know
whether there are responsive documents. They haven't
even answered that, and then if they are withholding any
and submitting them to the court, then the privilege log
comes next, I guess, would be my request.
THE COURT: Okay. Mr. Talarico, can you provide a
response in 28 days?
MR. TALARICO: Yes, Your Honor. I will respond.
THE COURT: All right. And if you don't have
documents, you don't have documents. Just tell him. If
you're claiming a privilege, identify -- provide some
sort of an identification of the document and the
privilege you're claiming.
With respect to the interrogatories, which
ones?
MR. FLYNN: These were the interrogatories
propounded by Hans Mast, my other client, and that was
Exhibit D, I believe, to the motion. I did not attach
his answers, but Hans Mast's interrogatories which were
propounded back on March 22 of 2019 -- one, two,
three -- just four interrogatories.
I do believe that we have a response, but it's
incomplete. It doesn't -- it doesn't identify these
communications with Mr. Gooch or the legal opinion that
has been alleged in the complaint and placed at issue.
THE COURT: Yeah, and I -- my concern is -- and the
answer, direct answer, to those is going to require my
review of the documents, so I'm going to enter and
continue that part of the motion until I make a decision
with respect to the documents.
Is there anything else?
MR. FLYNN: I think that covers it, Your Honor.
THE COURT: Okay. All right. So, Mr. Flynn, I'm
going to direct you to send me an order -- Do you have
our email address? You can take a picture if you like.
MR. FLYNN: I believe so. Okay.
THE COURT: Okay? And the order -- we'll pick a new
date in a moment. The order will provide that the
plaintiff will provide you with a privilege log for
those -- provide you answers to the production request
as well as a privilege log with respect to any documents
that are withheld, and I'm entering and continuing your
motion with respect to the interrogatories.
Plaintiff will provide me with the documents
withheld and identified in the privilege log within
28 days and then we'll come back perhaps two weeks after
that. Twenty-eight days is March 10th; two weeks after
that would be around March 24th, and I can provide you
with my ruling then. So how's March 24th at 1:30?
MR. FLYNN: Judge, I actually have a deposition at
1:00 o'clock that day.
THE COURT: How about the 25th? Thursday.
MR. FLYNN: 25th works. 25th at 1:00 o'clock?
THE COURT: Yeah.
Mr. Talarico?
MR. TALARICO: One second, Your Honor.
THE COURT: Okay.
MR. TALARICO: Fine.
THE COURT: Do we have agreement on the date or are
we waiting?
MR. TALARICO: I said it was fine, Your Honor.
THE COURT: Oh, okay. I'm sorry, I missed that. So
1:30. Is there anything else we need covered in the
order?
MR. FLYNN: Just may I be clear that the motion is
granted in part as stated on the record.
THE COURT: Yes.
MR. FLYNN: And I would like to just include
Mr. Gooch's name in the written order, that those be
included in the production if they exist.
THE COURT: Yeah, I don't -- I don't want -- What I
want to -- I guess -- And thank you for bringing that
up.
My impression from reading the motion was it
boiled down to -- I got the idea that it was a single
document or a single communication that conveyed the
information at issue. And you're indicating that it was
more, it was a number of emails. Are you able to put a
timeframe on it?
MR. FLYNN: Well, I think, again, the allegations in
the various complaints, complaint and amended
complaints, and the testimony, (indiscernible) to
December of 2016, so --
THE COURT: Yeah. Say the communications of
December of 2016, because I don't want it read as
requiring that all communications from Mr. Gooch be
produced.
MR. FLYNN: Okay.
THE COURT: Mr. Talarico, any questions or comments
about that?
MR. TALARICO: No, Your Honor. I'll follow the
court's order.
THE COURT: All right. Anything else then?
MR. FLYNN: No, Your Honor. I will send a draft of
that order to Mr. Talarico for his review and then we
will send it to your email address, Your Honor.
THE COURT: Okay. I'll wait to see that. I'll sign
it as soon as it's in. Thank you.
MR. FLYNN: Thank you.
THE COURT: See you in March.
MR. FLYNN: Thank you, counsel.
THE COURT: All right. Bye.
MR. TALARICO: Thank you, Judge. Thank you,
counsel.