United States District Court, N.D. Illinois, Eastern Division
December 15, 2005.
CLARENCE GROSS, Plaintiff,
TOWN OF CICERO; BETTY LOREN-MALTESE, former President of the Town of Cicero; RAMINO GONZALEZ, President of Town of Cicero; and EDWARD R. VRDOLYAK, individually, Defendants.
The opinion of the court was delivered by: JOHN DARRAH, District Judge
MEMORANDUM OPINION AND ORDER
Presently pending before the Court is Plaintiff's Motion to Bar
Defendants' Expert or Extend Time for Deposition.
On August 9, 2005, Defendants were ordered to produce the
reports of all opinions, conclusions, and the factual basis
thereof, of their experts by September 5, 2005, and have the
depositions of their experts be taken by September 29, 2005. On
September 13, 2005, Plaintiff's Emergency Motion to Reset Expert
Production Dates was granted; the Court ordered Defendants'
experts' reports to be tendered on October 11, 2005, and
depositions to be completed no later than October 18, 2005.
On September 13, 2005, Defendants' counsel sent Plaintiff's
counsel an e-mail, indicating that Defendants' expert was
available on October 12, 13, 14, and 17 to submit to his
deposition and asked Plaintiff's counsel to provide a convenient
date so that the deposition could be scheduled. Plaintiff's
counsel did not respond to the e-mail. On October 6, 2005, Defendants' counsel sent another e-mail to
Plaintiff's counsel, indicating that he did not receive a
response to his previous e-mail, that he would be furnishing the
expert's report on October 11, and asked that Plaintiff's counsel
select a date for the deposition of Defendants' expert. On
October 11, 2005, Plaintiff responded to the e-mail, apologizing
for her delay in responding because she had been out of the
office and asking for the available dates to depose Defendants'
expert. That same day, Defendants' counsel sent to Plaintiff's
counsel, via mail, the Defendants' expert's report.
On October 13, 2005, Defendants' counsel sent another e-mail to
Plaintiff's counsel, attempting to set Defendants' expert's
deposition for October 17. In this e-mail, Defendants' counsel
indicated that the deposition was of "Mr. Jalovec." On October
14, 2005, Plaintiff's counsel responded to the latest e-mail
indicating that she did not know who Mr. Jalovec was, that she
had never received Mr. Jalovec's report, that it was her
understanding that Defendants were not disclosing an expert, that
she would not be proceeding with Mr. Jalovec's deposition, and
that she believed Mr. Jalovec's testimony was barred because his
disclosure was untimely. Defendants' counsel replied that same
day to Plaintiff's counsel's e-mail, indicating that Jalovec was
properly disclosed, that he had repeatedly tried to schedule
Jalovec's deposition, and that he would inform Jalovec that
Plaintiff declined to depose Jalovec. One of Plaintiff's counsel
received Jalovec's report on October 17, 2005, and Plaintiff's
other counsel received the report on October 18, 2005. Jalovec's
report is one page in length and indicates that his opinions are
based on the Board of Fire and Police Commissioner's Act and the
Rules and Regulations of the Board of Fire and Police
Commissioner's for the Town of Cicero. ANALYSIS
Federal Rule of Civil Procedure 37(b)(2) provides, in pertinent
If a party . . . fails to obey an order to provide or
permit discovery . . . the court in which the action
is pending may make such orders in regard to the
failure as are just, and among others the following:
* * *
(B) An order refusing to allow the disobedient party
to support or oppose designated claims or defenses,
or prohibiting the party from introducing designated
matters in evidence.
The Court has inherent power to "fashion . . . appropriate
sanction[s] for conduct which abuses the judicial process."
Chambers v. NASCO, Inc., 501 U.S. 32
, 44-45 (1991)
(Chambers). This inherent power must be exercised with
restraint and discretion. See Chambers, 501 U.S. at 44.
Plaintiff seeks to bar Defendants' expert from testifying at
trial for Defendants' failure to comply with the Court's
September 13, 2005 Order. Plaintiff argues that sanctions are
appropriate because Defendants' counsel did not send Jalovec's
short report on October 11, 2005, by facsimile, instead of
mailing the report through the regular mail. However, Defendants'
counsel was not ordered to serve the expert's report by a
specific means, and service via the mail is proper pursuant to
Federal Rule of Civil Procedure 5(b)(2)(B). Defendants' counsel
mailed the expert disclosure on October 11, 2005, consistent with
the required dates set forth in the Court's Order. Furthermore,
Plaintiff cannot claim surprise of the disclosure of an expert
because Defendants' counsel sent multiple e-mails to Plaintiff's
counsel, attempting to schedule the Defendants' expert's
deposition, beginning in mid-September. While the e-mails did not
specifically name the expert, they clearly indicated an expert
would be named and that the deposition should be scheduled. Plaintiff also argues that Jalovec's expert testimony should be
barred because the disclosure fails to identify the materials
relied upon by Jalovec in formulating his opinions. However, the
disclosure does set forth that Jalovec's opinions are based on
the Board of Fire and Police Commissioner's Act and the Rules and
Regulations of the Board of Fire and Police Commissioners for the
Town of Cicero. Accordingly, Plaintiff's Motion to Bar the
Defendants' Expert is denied.
Plaintiff also seeks an extension of time from October 18,
2005, to depose Defendants' expert, arguing that she could not
have been prepared to depose Jalovec in light of the means of
service of the expert report. However, as stated above,
Defendants' counsel repeatedly tried to schedule Jalovec's
deposition weeks before the proposed deposition dates consistent
with the Court's Order. Plaintiff's counsel did not respond to
the e-mails until October 11, 2005; at which time, she asked for
available dates to depose Jalovec when those dates had been
previously provided to Plaintiff's counsel, It was Plaintiff's
counsel who indicated; on October 14, 2005, that she would not be
deposing Jalovec, three days before the time proposed for the
expert's deposition. Accordingly, Plaintiff's Motion to Extend
Time for Deposition is denied.
For the foregoing reasons, Plaintiff's Motion to Bar
Defendants' Expert or Extend Time for Deposition is denied.
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