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March 28, 2003


The opinion of the court was delivered by: Geraldine Soat Brown, United States Magistrate Judge


This cause coming to be heard on Plaintiffs' Motion for Discovery Sanctions Directed Against the Glen Oaks Medical Center [dkt # 347], the parties and former counsel having submitted briefs on the motion [dkt## 337, 347, 351, 372], for the following reasons, the motion is hereby GRANTED.


After learning for the second time that, despite representations to the contrary, GlenOaks Medical Center (hereinafter, "GlenOaks") knew the location of a sought-after witness, and that GlenOaks' counsel even had interviewed her, Plaintiffs moved for sanctions against GlenOaks under Fed.R.Civ.P. 37. Plaintiffs argue that GlenOaks and its counsel have demonstrated a pattern of evasive discovery tactics including hiding the location of documents and witnesses damaging to GlenOaks' position, and they ask this court to sanction GlenOaks for its conduct. After a careful review of the complicated and lengthy record, this court finds that GlenOaks and its counsel have failed to abide by their obligations under the Federal Rules of Civil Procedure and the Local Rules of the Northern District of Illinois, have hindered Plaintiffs' access to discoverable information, and have hindered the expeditious and just resolution of this case. Sanctions are imposed accordingly.


This case has a long and complicated history, a thorough understanding of which is critical to the determination of the issues presented by Plaintiffs' motion. This lawsuit began upon the filing of Plaintiffs' first complaint on February 26, 1996. (Compl.) [Dkt# 1.] While the details of Plaintiffs' claims have evolved over the eight years since the lawsuit began, Plaintiffs essentially seek to recover against GlenOaks and various other defendants for the November 20, 1995 death of Robert Reddick, alleging among other things that Reddick did not receive proper medical care at GlenOaks and that he died as a result. (Am. Fifth Am. Compl. ¶¶ 82-83, 89.) [Dkt# 259.]

At the heart of the discovery between Plaintiffs and GlenOaks, therefore, are the substance of documents and the testimony of witnesses regarding what happened to Reddick at GlenOaks the night that he died. The GlenOaks employees working in or around the emergency room that night included Bernard Bibbs, Pamela Quinn and Cynthia Schultz. (See Pls.' Mot. Sanctions at 2-3.) [Dkt# 347.] At issue in Plaintiffs' motion is the propriety of GlenOaks' disclosures of information concerning these three individuals.*fn1

During the November 26, 1996 scheduling conference in this case, the judge then presiding*fn2 expressly opted into the automatic initial disclosure provisions of Rule 26(a)(1) for this case, and set February 1, 1997 as the deadline by which the parties were to make their initial disclosures. (Nov. 26, 1996 Minute Order.) [Dkt #28.] Under the version of Rule 26(a)(1) then in effect, the parties were to disclose among other things, the identification of all persons likely to have discoverable information relevant to the factual dispute between the parties, "whether or not their testimony will be supportive of the position of the disclosing party." Fed.R.Civ.P. 26(a)(1) Advisory Committee Notes, 1993 amendments. The parties were also obligated to disclose the nature and location of potentially relevant documents and records. (Id.)

In January, 1998, Plaintiffs served their first set of documents requests upon GlenOaks. Request No. 15 stated: "Produce all written or recorded statements taken from any person who claims to have knowledge of any fact(s) relating to the November 20, 1995 occurrence involving Robert Reddick." (First Request Produc. Docs., Ex. D to Pls.' Resp. Deft.'s Mot. Leave Depose Pamela Quinn.) [Dkt# 222.] Request No. 53 sought "all statements, whether written or recorded, taken from any person who claims to have knowledge of the facts related to this lawsuit." (Id.)

Throughout 1998 and 1999 the parties exchanged additional discovery requests and responses and undertook substantial deposition discovery. It appears that counsel for the parties cooperated and worked together to arrange for the depositions of witnesses requested by a party. During that time, Plaintiffs asked GlenOaks on several occasions for the depositions of GlenOaks employees Bernard Bibbs and Cynthia Schultz. (See Jan. 27, 1999 and Mar. 25, 1999 letters from P. Ouimet to S. Valukas, Ex. 4 to Pls.' Mot. Sanctions.) Bibbs had been "involved in efforts to restrain the decedent at the hospital," and Schultz was an emergency room technician who assisted in GlenOaks' emergency room the night that Reddick died. (GlenOaks' Mot. Protective Order and Strike Aff. Bernard Bibbs (hereinafter GlenOaks' Mot. Strike) at 3) [Dkt# 297]; GlenOaks' Reply Supp. Request Withhold Produc. Certain Docs. at 1.) [Dkt# 317.] On April 1, 1999, counsel for GlenOaks advised Plaintiffs that after making "all reasonable efforts to contact" Bibbs and Schultz, they had been unsuccessful in that effort. (April 1, 1999 letter from S. Valukas to P. Ouimet, Ex. 5 to Pls.' Mot. Sanctions.) Counsel for GlenOaks provided the address where Bibbs "may reside," an address and telephone number of a Bibbs family member, and the "last known address" of Schultz whose telephone number was "unknown." (Id.) GlenOaks' counsel further invited Plaintiffs "to take any necessary steps to schedule their depositions." (Id.)

Shortly thereafter, Plaintiffs served a series of document requests on GlenOaks, including their Fourth Request to Produce:

Produce any and all documents or other materials contained in the Glen Oaks Medical Center's Risk Management Department files which concern or relate to: (a) Robert Reddick, (b) the care and treatment of Robert Reddick at GOMC on November 20, 1995, (c) the actions of any hospital personnel or third parties before, during or after the death of Robert Reddick on November 20, 1995.
(Pls.' Fourth Request Produce Docs., Ex. C to Pls.' Mot. Compel Compliance Outstanding Fact Discovery.) [Dkt# 194.] After receiving no response from GlenOaks to this request and three others, Plaintiffs moved to compel GlenOaks' response. (Pls.' Mot. Compel Compliance Outstanding Fact Discovery.) In part motivating the particular discovery request and the corresponding motion to compel was Plaintiffs' discovery through their own investigation of a previously undisclosed fact witness, Pamela Quinn, and a previously undisclosed report authored by Quinn regarding Reddick's death at GlenOaks. (See Pls.' Sur-response Opp'n. GOMC's Request Withhold Produc. Schultz Docs. at 14.) [Dkt# 326.]

After substantial briefing on the issue, and the belated creation of a privilege log identifying the documents GlenOaks sought to withhold, GlenOaks was ordered to produce documents responsive to Plaintiffs' discovery requests, including the report authored by Quinn (hereinafter "the Quinn Report"). (See Aug. 6, 1999 Minute Order.) [Dkt# 219.] The Quinn Report, titled "Assessment & Referral, Departmental Action Form," is dated November 20, 1995, the night that Reddick died. (Quinn Report, Ex. 1 to Pls.' Mot. Sanctions.) In the report, Quinn recorded what she witnessed that night as well as her several concerns about it including, "the patient being restrained and not medically monitored . . ., paramedics being unconcerned that a [patient's] hands are blue while handcuffed . . ., [and a] lack of awareness that chemical dependency is a disease, not a moral deficiency." (Id.) The report was signed by Quinn's manager, Debra McKenzie, and noted discussions about Quinn's concerns with "Scott and Kathy." (Id.) Like Pamela Quinn, none of the persons listed in the report had been previously disclosed by GlenOaks.

In December, 1999, Quinn's former supervisor at GlenOaks, Debra McKenzie, was deposed. (McKenzie Dep., Ex. 2 to Pls.' Mot. Sanctions.) McKenzie testified that she had no recollection of the Quinn Report or of speaking with anyone other than Scott and Kathy about it. (Id. at 28.) In December, 1999, over Plaintiffs' objections, GlenOaks was granted leave to depose Quinn. (Dec. 21, 1999 Minute Order.) [Dkt# 224.]

In late 1999 and throughout 2000, the parties seemed to be gearing up for trial. On December 17, 1999, Plaintiffs' counsel wrote to GlenOaks' counsel regarding the presentation of witnesses at trial, and asked GlenOaks' counsel to identify whom it represented in that regard. (Dec. 17, 1999 letter from P. Ouimet to S. Valukas, attached to Submission GlenOaks' Former Counsel.) [Dkt# 337.] On December 27, 1999, then-counsel for GlenOaks, Ungaretti & Harris, responded that it represented "all current and former employees of GlenOaks Hospital involved in the care and treatment of Robert Reddick or referenced by any witness or document produced in this litigation." (Dec. 27, 1999 letter from S. Valukas to P. Ouimet, attached to Submission GlenOaks' Former Counsel.) On October 3, 2000, Plaintiffs filed their Amended Fifth Amended Complaint, which included a count alleging conspiracy to conceal evidence, and referred to information obtained following production of the Quinn Report. (Am. Fifth Am. Compl. ¶¶ 90-99.) [Dkt# 259.]

On October 2, 2000, Christine Rendl, Regional Claims Coordinator for the Risk Management Department of Adventist Health System,*fn3 located Bibbs, at one of the addresses that GlenOaks earlier had provided to Plaintiffs. (GlenOaks' Resp. Pls.' Mot. Sanctions at 3.) [Dkt# 351.] She spoke to him about his recollections of the night Robert Reddick died, and sent an e-mail about this contact. (E-mail from C. Rendl to M. A. Moore, Ex. 15 to Pls.' Mot. Sanctions.) After speaking with Bibbs, Rendl reported the contact to Ungaretti & Harris. (Rendl Suppl. Aff. at 2, Ex. 3 to GlenOaks's Resp. Pls.' Mot. Sanctions.) GlenOaks did not, however, supplement its disclosure regarding Bibbs' whereabouts.

In early 2001, Rendl again set about finding a previously unlocated witness, Cynthia Schultz. (Resp. Pls.' Mot. Sanctions at 5.) Upon locating Schultz, Rendl informed Ungaretti & Harris of the contact. (Id. at 6.) Shortly thereafter, Stephen Huang, then an associate at Ungaretti & Harris, spoke with Schultz. (Id.) In March, 2001, Huang used his handwritten notes to summarize the discussion first in a draft letter and then in a final letter to Joan Parody at Adventist Health System. (GlenOaks' Reply Supp. Request Withhold Produc. Certain Docs. at 1.) Although counsel for GlenOaks interviewed Schultz at considerable length, GlenOaks did not supplement its disclosure regarding Schultz's whereabouts.

At the May 30, 2001 status hearing, attorneys from Donohue Brown Mathewson & Smyth (hereinafter "the Donohue Firm") were granted leave to substitute for attorneys from Ungaretti & Harris as counsel for GlenOaks. (May 30, 2001 Minute Order.) The next month, Plaintiffs' counsel contacted Bibbs. (Pls.' Resp. GlenOaks' Motion Strike Bernard Bibbs' Aff. and for Protective Order (hereinafter, "Plaintiffs' Resp. Mot. Strike") at 2.) [Dkt# 300.] Plaintiffs' investigator, Mort Smith, first found Bibbs in June, 1999, just weeks after GlenOaks reported being unable to contact him, and again located Bibbs for Plaintiffs' counsel in June, 2001. (Smith Aff. at 1-2, Ex. 2 to Pls.' Resp. Mot. Strike.) Investigator Smith testified that during both contacts he made with Bibbs, Bibbs reported that he was unrepresented by counsel. (Id. at 1-2.)

On June 15, 2001, Bibbs met with counsel for Plaintiffs. (Ouimet and Partelow Affs., Exs. 10 and 11 to Pls.' Resp. Mot. Strike.) Bibbs recalled for Plaintiffs' counsel the events the night that Reddick died, and he executed an affidavit attesting to his recollection. (Bibbs Aff., Ex. 8 to Pls.' Mot. Sanctions.) Pursuant to Rule 26(c), Plaintiffs produced the Bibbs affidavit to all parties ten days later. (June 25, 2001 letter from P. Ouimet to counsel, Ex. 12 to Pls.' Resp. Mot. Strike.) Upon receipt of the affidavit, GlenOaks' new counsel, the Donohue Firm, wrote to Plaintiffs' counsel alleging that because the Donohue Firm represented Bibbs, Plaintiffs' ex parte communications with him had violated professional conduct rules. (June 28, 2001 letter from S. Arrigo to J. Partelow, Ex. 13 to Pls.' Resp. Mot. Strike.) On July 7, 2001, GlenOaks filed a motion for sanctions against Plaintiffs' counsel for the contact, asking that the court to strike the affidavit and issue a protective order preventing any further such communication. (GlenOaks' Mot. Strike.) In support of its argument, GlenOaks relied on Rendl's undisclosed October, 2000 communication with Bibbs, and Ungaretti & Harris' December 27, 1999 letter stating that counsel for GlenOaks represented all current and former GlenOaks employees. (Id.)*fn4

After briefing and oral argument on the issue, this court denied GlenOaks' motion, finding it frivolous, and stating that GlenOaks could not "unilaterally impose an attorney-client relationship without the consent of the supposed client." (Tr. Sept. 21, 2001 at 4-5, Ex. 10 to Pls.' Mot. Sanctions.)*fn5 Moreover, this court stated:

Mr. Bibbs is clearly an important and material witness whose deposition the plaintiffs had sought to take. In violation of its duties under Federal Rule of Civil Procedure 26(e)(2), to seasonably amend its prior response to discovery, after a party learns of additional or corrective information that has not otherwise been known to the other party, Glen Oaks left the plaintiffs with the impression that Glen Oaks had no idea where Bibbs was, and Glen Oaks made no effort to schedule the deposition of their so-called client. . . . [C]oncealing the whereabouts of a material witness whom Glen Oaks' counsel now claims is and was their, quote, `client,' close quote, is a serious breach of professional responsibility to the court as well as opposing counsel.
(Id. at 5-6.) GlenOaks was ordered to submit a statement as to why it should not be sanctioned under Federal Rule of Civil Procedure 11 for bringing a frivolous motion or under Federal Rule of Civil Procedure 37 for failing to advise Plaintiffs in October, 2000 that it had located Bibbs. (Id. at 6.) The Donohue Firm filed such statement on behalf of itself and GlenOaks on September 28, 2001. (Statement GlenOaks and its Counsel.) [Dkt# 309.] At the subsequent hearing on the issue, this court reaffirmed its finding that counsel for GlenOaks never represented Bibbs, and noted the serious question under Local Rule 83.51.7 of whether counsel for GlenOaks could represent Bibbs due to the apparent conflict between Bibbs' affidavit and the position of GlenOaks. (Tr. Oct. 9, 2001 at 3-4, Ex. 11 to Pls.' Mot. Sanctions.) This court observed that it was "very troubled by Glen Oaks' failure to see the seriousness of [its] conduct" in failing to disclose its knowledge regarding Bibbs, (Id. at 7.) Although this court concluded that "Glen Oaks had no intention of ever correcting the false impression that they had created with the plaintiffs," the issue of sanctions arising from GlenOaks' failure to disclose locating Bibbs in October, 2000 was expressly reserved until the conclusion of the case in order to determine whether there was a pattern or other circumstances that would cause the court "to question whether or not the obligations of counsel with respect to disclosures have been met," (Id. at 8-11.)

Just two months after the court's ruling with regard to Bibbs, however, the parties were back before the court with another newly uncovered witness, Cynthia Schultz, who by that point had become Cynthia Schultz Auble. (Dec. 13, 2001 Minute Order.) [Dkt# 314.]; Schultz Auble Aff., Ex. 4 to GlenOaks' Res. Pls.' Mot. Sanctions.) One of Plaintiffs' attorneys, John Partelow, had located and contacted Schultz Auble in late November 2001. (See Partelow Aff. at 1-2, Ex. 1 to Pls.' Resp. GlenOaks' Request Withhold Produc. Schultz Docs.) [Dkt# 315.] It is undisputed that during that conversation Schultz Auble informed Partelow that she was not represented by an attorney. (Id.; Schultz Auble Aff., ΒΆ 4, Ex. 1 to GlenOaks' Reply Supp. Request Withhold Produc. Certain Docs.) She also said that she was willing to speak with him at another time about her recollection. (Id.) Following her conversation with Partelow, Schultz Auble contacted "the hospital" about the communication. (GlenOaks' Resp. Pls.' Mot. Sanctions at 6.) Claims Coordinator Rendl told Schultz Auble not to talk to Plaintiffs' counsel until she had talked to an attorney. (Schultz Auble Dep. at 260, Ex. B to Pls.' Reply Supp. Mot. Sanctions.) Rendl ...

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