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Orgler Homes, Inc. v. Chicago Regional Council of Carpenters

November 24, 2008

ORGLER HOMES, INC. AND DAVID ORGLER, PLAINTIFF,
v.
CHICAGO REGIONAL COUNCIL OF CARPENTERS, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA AND LOCAL UNION NO. 2087 OF THE UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, DEFENDANTS.



The opinion of the court was delivered by: Magistrate Judge P. Michael Mahoney

MEMORANDUM OPINION AND ORDER

I. INTRODUCTION

On March 6, 2008, the court found Plaintiffs' counsel liable to Defendants for the costs and fees Defendants incurred in responding to Plaintiffs' second expert report. Specifically, the court ordered Plaintiffs' counsel to reimburse Defendants for bringing a motion to strike the first expert report, for conducting a second round of depositions, and for preparing a second expert report. After reviewing Defendants' proposed fees and costs and Plaintiffs' responses, the court makes the following determinations.

II. BACKGROUND

On August 29, 2007, the court ordered the following Rule 26(a)(2) schedule: Plaintiffs' expert disclosure was due November 1, 2007; Plaintiffs' expert was to be deposed by November 30, 2007; Defendants' expert disclosure was due December 31, 2007; and Defendants' expert was to be deposed by January 30, 2008.

Plaintiffs submitted their first expert disclosure and produced their expert, Robert E. Kleeman, for deposition according to the schedule ordered by the court. Orgler Homes, Inc. v. Chicago Regional Council of Carpenters, No. 06 C 50097, at 1 (N.D. Ill. Mar. 6, 2008). Defendants' expert, Wes Grover, prepared his expert report in rebuttal which Defendants disclosed to Plaintiffs on December 31, 2007. Id. That same night, Plaintiffs' counsel faxed to defense counsel "supplemental" expert materials consisting of a six page affidavit of Gary Meade, Kleeman's associate, a four page supplemental expert report, thirteen pages of supplemental data reports, and a new ten page MLS spreadsheet. Id. On January 2, 2008, Defendants moved to strike all of the December 31 materials submitted by Plaintiffs' counsel because, inter alia, they amounted to a new expert report. Def. Mtn. to Strike at 1-2. Plaintiffs argued that the materials were merely supplemental and necessary to correct an Excel spreadsheet error that had caused "corrupted data" in the original report. Orgler Homes, Inc. v. Chicago Regional Council of Carpenters, No. 06 C 50097, at 3 (N.D. Ill. Mar. 6, 2008).

On March 6, 2008, this court granted Defendants' Motion to Strike, finding that Plaintiffs' counsel's submission of the December 31 materials prejudiced Defendants. Id at 5. Specifically, the court noted that Defendants' expert had spent 33 days preparing a rebuttal report that was based on Kleeman's original report and deposition, both of which contained inaccurate data. Id. Plaintiffs' counsel offered no explanation for submitting the supplement on the very day that Grover's expert report was due. Id. Plaintiffs' counsel also did not reveal when Plaintiffs' need to supplement was first discovered and whether Plaintiffs' counsel could have communicated the need to supplement to Defendants sooner. Id. Although the court did not find that they acted willfully, Plaintiffs' counsel was "certainly sloppy and perhaps negligent," and wasted Defendants' time and money. Id. at 5.

The court ordered Plaintiff to submit a new, comprehensive expert report by March 13, 2008. Id at 6. Defendants then had until April 10, 2008 to depose Kleeman and Meade, and to submit a new expert report by April 24, 2008. Id. Plaintiffs had until May 22, 2008 to depose Grover. Id.

The court also ordered Plaintiffs' counsel to pay Defendants' costs, under Federal Rule of Civil Procedure 37(c)(1), for bringing the Motion to Strike, drafting a second expert report, and deposing Kleeman and Meade regarding Plaintiffs' new expert report. Id. The court gave Defendants until May 1, 2008 to submit an affidavit outlining fees. Id. Plaintiffs' objections to the fees were due May 8, 2008. Id.

On April 30, 2008, Defendants submitted their Third Petition for Fees and Costs ("Defendants' Third Petition"). This petition outlined the costs incurred by Defendants in preparing the Motion to Strike. Def. Third Pet. at 1. Plaintiffs timely responded with objections. The court extended the time for Defendants to submit a petition for fees incurred in drafting a second expert report and in deposing Plaintiffs' experts until July 21, 2008. That date was again pushed back to July 29, 2008.

On July 29th, Defendants submitted their Fourth Petition for Fees and Costs ("Defendants' Fourth Petition"), which outlined the costs incurred in deposing Meade and Kleeman, and in preparing Grover's second expert report. Plaintiffs filed a timely response to the petition, and Defendants filed a timely reply.

On September 30, 2008, Judge Kapala granted Defendants' Motion for Summary Judgment on all claims, and closed the case. Orgler Homes, Inc. et al. v. Chicago Regional Council of Carpenters, United Brotherhood of Carpenters, et al., No. 06 C50097, at 1 (N.D. Ill. Sept. 30, 2008). Defendants moved to have the case re-opened for the purpose of resolving Defendants' outstanding petitions for fees and costs, which the district court granted on October 16, 2008.

It was obvious to the court that many of the materials and knowledge that Defendants used to conduct Kleeman's first deposition, and for Grover to write his first expert report, overlapped with the materials and knowledge used to conduct the second round of depositions and for Grover to write his second expert report. To ensure that Defendants are only compensated for the extra work Plaintiff's second expert report caused, the court ordered Defendants to submit an affidavit outlining the costs and fees associated with conducting Kleeman's first deposition and submitting Grover's first report. Defendants submitted that affidavit on November 3, 2008, and Plaintiffs responded to the affidavit on November 10, 2008.*fn1

For the reasons stated below, the court orders Plaintiffs' counsel to reimburse Defendants in the amount of $64,382.95 for fees and costs associated with preparing the Motion to Strike, conducting the depositions of Kleeman ...


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