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ZINGERMAN v. FREEMAN DECORATING CO.

August 29, 2003

JACK ZINGERMAN, PLAINTIFF,
v.
FREEMAN DECORATING CO., DEFENDANT



The opinion of the court was delivered by: David Coar, District Judge

MEMORANDUM OPINION AND ORDER

Plaintiff Jack Zingerman ("Plaintiff" or "Zingerman") filed a Charge of Discrimination with the EEOC on January 14, 2002 alleging retaliation, hostile environment, and national origin and religion-based discrimination. The EEOC issued its Dismissal and Notice of Rights letter on May 29, 2002. Plaintiff timely filed his Complaint on August 23, 2002. Plaintiff subsequently filed an Amended Complaint on November 5, 2002, This case comes before the Court on Defendant Waukegan Township Assessor's Motion for Summary Judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Defendant's Motion has been fully briefed and it is now ripe for decision.

I. Discovery Matters

Before addressing the merits of Defendant's Summary Judgment Motion, the Court will address Plaintiff's discovery-related objections to certain affidavits Defendant relies upon in its motion. Plaintiff asserts that the Defendant failed to disclose information on two occasions: pursuant to the mandatory disclosure requirements of Rule 26(a) (1) (A) and in response to one of [ Page 2]

Plaintiff's interrogatories. Plaintiff further asserts that the Defendant acted in bad faith with respect to agreed depositions after the date set for the close of discovery. Finally, Plaintiff asserts that the Defendant disclosed the identity of two witnesses too late in the discovery process.

As an initial matter, the Court notes its displeasure in confronting discovery disputes that are submitted for the first time in response to a Motion for Summary Judgment. The schedule in this case was set in December 2002, and discovery was set to close on April 30, 2003. If there are problems during discovery, the appropriate response is first to seek to resolve the issue among the parties and, if that fails, then to bring the issue to the attention of the Court with an appropriate motion (e.g. Motion to Compel or Motion for Sanctions). Bringing discovery issues to the Court's attention in response to a Motion for Summary Judgment is a backwards approach that is unlikely to be met favorably. Since the issues are before the Court now, though, they must be addressed.

A. Rule 26(a) (1) (A) and Responses to Interrogatories

Plaintiff asserts that the Defendant failed to comply with Rule 26(a) (1) (A) when it failed to identify the subject of information that witnesses Lyons, Rockelmann and Albaugh possessed. Plaintiff further asserts that Defendant failed to provide a satisfactory response to one of Plaintiffs Interrogatories, again with respect to the subject of knowledge of witnesses Lyons, Rockelmann, Albaugh, and Markiewicz. Plaintiff seeks exclusion of the testimony of these witnesses and denial of Defendant's Summary Judgment Motion as a sanction for these alleged failures.

The 1993 amendments to the Rules of Civil Procedure initiated the mandatory disclosure requirements of Rule 26(a). The rule was designed to accelerate the exchange of basic [ Page 3]

information about the case so that the parties would not be groping in the dark until propounding interrogatories and obtaining satisfactory answers, often with a Motion to Compel. While certain elements of discovery gamesmanship persist, Rule 26(a) has made a substantial dent in their frequency and scope.

In this case, the Defendant included Lyons, Rockelmann, and Albaugh, but allegedly failed to include the subject of information that they might possess. The Plaintiff has not provided the Court with a copy of Defendant's allegedly defective Rule 26 disclosure, so the Court cannot make an independent assessment of the defect in the disclosure. Plaintiff complains that Defendant compounded this error when it failed to include the subject of knowledge of these same three witnesses and a fourth, Robert Markiewicz, in its answer to one of Plaintiffs interrogatories. Here, too, the Plaintiff failed to provide the Court with a copy of Defendant's allegedly defective interrogatory response.

Based on the information the parties have provided the Court, these two alleged failures of the Defendant clearly do not merit a sanction at this late moment in the litigation. This is not a complicated case. It does not require expert testimony and the subject matter is not obscure. It's employment discrimination, not rocket science. Without even looking at the Complaint, one can safely assume that any given witness will likely be able to testify about one of three things: (1) the Plaintiffs employment history; (2) the Defendant's employment practices; and/or (3) the specifics of the alleged discriminatory treatment. Moreover, the subject of information that three of these four witnesses might possess is apparent from the face of the Complaint. Harold Albaugh is almost certainly the person referred to in the Complaint as the Branch Manager, "Harold (last name unknown)." See Pl. Comp. Count I, ¶¶ 17-19. Roger Lyons is the alleged [ Page 4]

discriminatory actor in this case. The third witness, Tom Rockelmann, is Lyons' supervisor and a person to whom the Plaintiff complained of discriminatory treatment. See Pl. Comp., Count I, ¶¶ 16-17. For these three witnesses, the Defendant's alleged lack of disclosure of the subject of their knowledge does not carry an iota of prejudice to the Plaintiff. The only one of the four witnesses not named in the Complaint is Robert Markiewicz. Markiewicz is the Union Steward for Local 1027 at Freeman. Although the subject of information he might be able to provide is not apparent from the face of the Complaint, it is not difficult to guess.

Plaintiffs requests that the testimony of Albaugh, Lyons, Rockelmann, and Markiewicz be excluded and the summary judgment motion be denied on the basis of these errors are denied.

6. Alleged Bad Faith Regarding Deposition Scheduling

Discovery in this case closed on April 30, 2003. Due to a series of circumstances, the parties had agreed among themselves to conduct some depositions after the close of discovery.*fn1 Defendant expressed concern to Plaintiff about conducting the depositions after the close of discovery, since the dispositive motion deadline was thirty days after the close of discovery. Discovery closed on April 30, 2003 without either party filing a request for an extension of discovery or an extension of the filing date for dispositive motions.

On May 2, 2003, Defendant filed an agreed motion to extend the deadline for dispositive motion. The Motion requested an extension of the discovery deadline until May 21 and an extension of the dispositive motion deadline until June 20. When the parties appeared in support of the motion on May 8, 2003, the motion was denied. At that point, neither party presented any [ Page 5]

further argument in support of the motion. Faced with a dispositive motion deadline three weeks from the date the motion for extension was denied, Defendant refused to produce the witnesses for the scheduled depositions.

This dispute represents a cautionary tale for both parties. Plaintiff should have scheduled the witness depositions sooner than the last two days of discovery. There are cases when witnesses do not become known or depositions do not seem necessary until near the end of the discovery period, but this is not such a case. The witnesses were known to the Plaintiff at an early stage and their value as witnesses is apparent from the Complaint. On the other hand, if the Defendant needed an extension of the dispositive motion deadline to conduct depositions after the discovery deadline, it should have made that a condition of the agreement to conduct the depositions. Instead, Defendant agreed to conduct the depositions after the discovery deadline prior to making any request to extend the dispositive motion deadline. When the request was denied, Defendant reneged on its agreement. Parties should not make agreements with one another that contain assumptions about future decisions of the Court, particularly when the decision might require a change in the trial date. Though sometimes it becomes necessary, changing the trial date of even one case has the potential to upset the trial calendar in this busy Court. At the scheduling conference, both parties were warned that under this Court's scheduling system, extensions of deadlines would not be granted because to do so would jeopardize the trial date.

While the Court does not approve of the Defendant's unilateral cancellation of the agreement to conduct depositions after the discovery deadline, neither does the Court believe the Defendant was acting in bad faith. Although ...


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