United States District Court, N.D. Illinois, Western Division
November 7, 2005.
DEMETRIC BELL, MARILYN BERRY, CATHERINE BROWN, KIMBERLY BUCHANAN, GILBERTO GONZALEZ, DELLA JARRETT, TIMMY LINK, EDDIE MANNING, JR., KIM NACHAMPASSACK, DUANE PARKS, BRENDA RILEY, DARNEL ROYAL, ROBIN SALLIS, VELMA SANDERS, BARBARA SMITH, TONY TRIPLETT, JANET WILKINS and FRED WYNNE, individually and on behalf of similarly situated persons, Plaintiffs,
WOODWARD GOVERNOR COMPANY, Defendant.
The opinion of the court was delivered by: P. MAHONEY, Magistrate Judge
MEMORANDUM OPINION AND ORDER
This matter is before the court on Plaintiffs' September 19,
2005 Motion to Compel Defendant's Counsel to Comply with Court
Orders, Provide Discovery Materials and Information and for
Sanctions. On October 12, 2005, the court reserved ruling on
Request 2(c)*fn1 of Plaintiffs' Motion pending a seven day
supplemental response period. For the reasons stated below,
Plaintiffs' Motion regarding Request 2(c) is granted in part and
denied in part.
On August 31, 2005, the court issued its ruling on Plaintiffs'
August 22, 2005 Motion to Compel Production of Documents Containing Representations of
Compliance with Federal Contractor Affirmative Action
Obligations. Plaintiffs had moved to compel a Response to their
May 2, 2005 document request seeking affirmative action
certifications, from 1999 to the present. Defendants had moved
for a Protective Order from producing the same. The court found
that Plaintiffs' likelihood of discovering relevant information
from Defendant's production of documents containing
representations of compliance with federal contractor affirmative
action obligations ultimately outweighed the burden of production
on Defendant, but the court also found that Defendant was
entitled to certain protections from the unnecessary disclosure
of discovery materials to private, non-governmental entities.
Accordingly, the court granted Plaintiffs' Motion to Compel in
part and ordered Defendant to produce all documents responsive to
Plaintiffs' May 2, 2005 document request. However, the court
limited the production in two ways. First, the court gave
Defendant permission to redact the identifying information of
private, non-governmental entities contained in documents
produced. Second, the court granted Defendant's Motion for a
Protective Order in part by restricting Plaintiffs from releasing
to private, non-governmental entities information and documents
produced by Defendant regarding certifications. The court did not
set a deadline for production at this time.
II. Production Following the Court's Order Compelling a
Plaintiffs filed a September 19, 2005 Motion to Compel and for
Sanctions when production under the August 31, 2005 Order was not
forthcoming. When the court learned that Defendant had not
complied with the August 31, 2005 Order at a September 23, 2005
discovery conference, the court ordered Defendant to comply with
all outstanding discovery by October 7, 2005. When the court
learned that Defendant's production was still not complete at a
October 11, 2005 discovery conference, the court saw fit to remind the
parties that "ultimate production of materials requested in the
discovery process does not absolve the failure to produce
materials in a timely fashion" in an October 12, 2005 Opinion.
Fautek v. Montgomery Ward & Company, Inc., 96 F.R.D. 141, 145
(N.D. Ill. 1982). The court also invited a supplemental response
on the issue of production of affirmative action certifications,
hoping the parties would resolve the logistics of production on
Apparently, the parties did not reach an accord, as Plaintiffs'
October 18, 2005 supplemental response set forth their case that
Defendant had largely ignored the court's August 31, 2005 Order,
and subsequent Orders, regarding affirmative action
certifications. See Pl.s' Supp. Submission, at Ex. A.
First, Plaintiffs state that they wrote Defendant on September
15, 2005 to determine a date for production. Id. Plaintiffs
state that Defendant's reply letter indicated the Defendant "did
not know when the Defendant would comply with the Court's Order"
and that "Woodward was too busy to allocate the resources
necessary to comply." Id. A redacted sample certification was
attached to the letter. Id. Plaintiffs state that the letter
was redacted even though it did not identify private,
non-governmental entities. Id.
Second, Plaintiffs cite the September 19, 2005 deposition
testimony of Thomas Stinson ("Stinson"). See Pl.s' Supp.
Submission, at Ex. A. Stinson testified that he was requested to
produce a sample certification on September 16, 2005, but that he
had never received a request to gather documents responsive to
the Court's Order to Compel. Id. Stinson testified that he
works with certifications for contracts of direct sales to the
government; not private, non-governmental entities. Id. Stinson
further stated that assigning a clerical person to go through the certifications would involve only a de minimis burden as
all the documents were filed in one location. Id.
Third, Plaintiffs cite the September 19, 2005 deposition
testimony of Stephen Casper ("Casper"). See Pl.s' Supp.
Submission, at Ex. A. Casper testified that he worked with
affirmative action certifications for contracts with private,
non-governmental entities who have contracts with the government.
Id. Casper stated he had never received a request to gather
documents responsive to the Court's Order to Compel Id. He
further testified that compliance would not be significantly
Fourth, Plaintiffs cite the untimely and deficient production
they have received in response to their May 2, 2005 Production
Request. In addition to the September 16, 2005 Stinson sample
document, three undated, unsigned, redacted sample forms and a
printout of the 2005 electronic certification form were sent by
Defendants on October 10, 2005. See Pl.s' Supp. Submission, at
Ex. A. On October 19, 2005, Plaintiffs received a package of
direct government certifications for 2004 and 2005, but no
indirect government contract certifications and no 1999-2003
certifications were sent. See Pl.s' October 24, 2005 Status.
In Defendant's Response to Plaintiffs' September 19, 2005
Motion to Compel and Defendants's October 18, 2005 supplemental
response, Defendants stated they were in the process of
responding to Plaintiffs' document request. Defendant indicated
pulling, redacting, copying, and Bates-stamping the
certifications was a costly and time consuming task, but offered
no affidavits or other evidence is support of this statement.
Defendant indicated its goal was to produce 2004-2005
certifications by October 21, 2005.
In court on October 11, 2005, Defendant indicated a person
working full time would require at least four to six weeks to complete full compliance.
Defendant based this estimate on a consultation with Carol Smith,
an Human Resources employee of Woodward Governor.
The court has fully analyzed production under Plaintiffs'
Request 2(c) in a prior opinion. Bell, et al v. Woodward
Governor Co., 03 C 50190 (N.D. Ill. Aug. 31, 2005). The court
has also addressed this matter at several discovery conferences
with the parties. In fact, the court supervised a L.R. 37.2
conference on this matter. Though Defendant states it is
diligently working on production, Defendant has failed to
demonstrate how its burden of production prevents timely
compliance with the court's Orders. Even with the court's
invitation of supplemental responses, no affidavits or new
evidence of burden has been presented.
As such, full compliance with the court's August 31, 2005
ruling on Plaintiffs' Motion to Compel Production of Documents is
ordered by November 30, 2005. Anything less than full production
by Defendant risks imposition of the full range of sanctions
authorized by Fed.R.Civ.P. 37, including Report and
Recommendation by the Magistrate Judge that the District Court
render judgment by default and enter a finding of liability
For the above stated reasons, Plaintiffs' Motion regarding
Request 2(c) is granted in part and denied in part. Full
production in accordance with the court's outstanding Orders
regarding affirmative action certifications to occur by November
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