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Hard Surface Solutions, Inc., An Illinois Corporation v. the Sherwin-Williams Company

December 13, 2010


The opinion of the court was delivered by: Judge Nordberg

Magistrate Judge Cole


The Sherwin-Williams Company has moved to strike what it characterizes as the plaintiff's untimely disclosure of its proposed experts, which, it also asserts, is hopelessly noncompliant with the requirements of Federal Rule of Civil Procedure 26(a)(2). It also seeks to preclude the plaintiff from calling any expert at trial based upon the plaintiff's failure to have complied with the October 30th date by which plaintiff was to have disclosed its expert. While conceding the lateness of its expert disclosures and its at least partial noncompliance with Rule 26(a)(2), the plaintiff opposes the motion on the ground that the disclosures comply with Rule 26(a)(2)'s mandatory provisions. On November 12, 2010, eight days after Sherwin-Williams filed its Motion to Strike, the plaintiff moved to extend the discovery schedule and "disclosure deadlines." In order for it to "designate trial expert witnesses...." Discovery is scheduled to close on December 31st. Judge Nordberg has sent the motions here for disposition. See 28 U.S.C. §636(b)(1)(A).

The facts are these: On February 3, 2010, I entered the current case scheduling order, the terms of which the parties had previously agreed upon and jointly submitted to me for approval. (Doc.##16-17). The order required plaintiff to provide a Rule 26(a)(2) designation of expert witnesses along with copies of expert reports by July 30, 2010. The order also provided that it could not be modified without leave of court. Plaintiff did not make any disclosures of experts or provide any reports by July 30. Nor did it apply to the court for an extension of the scheduling order. Indeed, it did not even ask counsel for the defendant if they would informally agree to extend the schedule. Instead, it did nothing, and July 30th came and went. So, too, did August and September and almost all of October without any disclosures or explanations from the Plaintiff and without any request for an extension of the expert disclosure date.

Finally, on October 26, counsel for plaintiff sent a laconic, two-sentence email to the Defendant that attached what purported to be plaintiff's Rule 26(a)(2) disclosures. See Ex. A, Defendant's Motion to Strike Disclosures. (Docket #25). Ignored was the passage of almost three months from the date on which the disclosures were due. In the interim, no motion was made for leave to file the undeniably tardy "disclosures" or to extend the due date for them. Each of the purported disclosures antedated by at least four months the date on which the complaint in this case was initially filed in the Circuit Court of Cook County.*fn1

The purported disclosures consisted of four documents. The first was a five-page, single-spaced letter from Wiss, Janney, Elstner Associates, Inc. to the plaintiff's president. The letter, in the first sentence, stated that it was "an initial assessment"of the failure of a deck coating system at the Woodfield Corporate Center. It was based upon a review of "selected documents and correspondence" provided by the plaintiff. The letter went on to describe the subject project, the scope of construction, various understandings that it had, the conditions of failure, an assessment conducted by a separate firm, Dessman Associates, an engineering consultant retained by Lincoln

Property Corporation which was the manager of the Woodfield Corporate Center. The letter concludes by recommending a particular evaluation "to confirm the causes of failure before a final decision is made regarding the extent of remedial measures to be undertaken and the products to be installed."

The second supposed expert disclosure was a thirteen-page, single-spaced June 1st letter to Lincoln Properly Company from Dessman Associates. It quite explicitly states its limited and "intended" purpose, namely "to summarize our findings on the current conditions of the plaza and present recommendations on the repairs required to the plaza." The letter concludes with repair recommendations and the equivocal statement that "it appears that the waterproofing layer and the wear course may not have the proper elasticity to accommodate the exposures conditions of the plaza. It goes on to discuss other "areas of concern" and makes reference to its field survey and material testing. The third supposed disclosure is a one-and-a-half-page letter dated May 22nd letter from Dessman Associates to Lincoln Property Company and states that it is in response to a May 8th letter from Sherwin-Williams. The letter does not begin to comply with the requirements of Rule 26. The final supposed disclosure is a thirteen-page, single-spaced letter dated April 29, 2009 from Dessman Associates to Lincoln Property Company. While the letter appears to be identical to the June 1st letter, it is stamped "DRAFT" on every page.

Sherwin-Williams' initial motion to strike relied solely on the lateness of the disclosures and the failure to comply with the mandatory requirements of Rule 26(a)(2)(B)(i)-(vi). Thereafter, it filed a supplemental brief in support of its motion, which repeated the arguments in the original motion but substantially expanded on them and raised arguments not raised in the initial motion. I struck that filing sua sponte since it was entered without leave of court.


The plaintiff's disclosures were 3 months late -- and, as discussed below, were noncompliant in every particular with Rule 26(a)(2)(B). The plaintiff's Motion to Extend Discovery Schedule and Disclosure Deadlines obliquely suggested that the lateness of its submission resulted from an accident suffered by the plaintiff's president. But that accident occurred on August 28, 2010, over a month after the disclosures were due. And, the four letters comprising the disclosures had been in existence since May and June of 2009, more than a year before the claimed accident and long before the case was even filed. This chronology also demonstrates the unconvincing nature of the plaintiff's argument that the Rule 26 disclosures were late because the defendant had not answered discovery from the plaintiff until October 19, 2010 -- six months after it had been propounded.

Significantly, although the certificate of service accompanying the discovery requests to Sherwin-Williams is attached as an exhibit to the Motion to Extend the Discovery Schedule and Disclosure Deadlines, the requests, themselves, are not; nor is their content discussed. Thus, it is impossible to assess the validity of the assertion that the failure to answer the particular requests precluded a timely designation of experts and disclosure of their reports. At bottom, all there is is the unsubstantiated conclusion of counsel that the lateness of Sherwin-Williams' response to interrogatories precluded timely disclosure of plaintiff's expert reports. But uncorroborated statements in briefs do not count, and arguments based on unsupported conclusions are not to be considered. See e.g., Fabriko Acquisition Corporation v. Prokos, 536 F.3d 605, 609 (7th Cir.2008); de la Rama v. Illinois Dept. of Human Services, 541 F.3d 681, 688 (7th Cir.2008); United States v. Alden, 527 F.3d 653, 664 (7th Cir.2008); White Eagle Co-opinion Ass'n v. Conner, 553 F.3d 467, 476 n. 6 (7th Cir.2009); United States v. Berkowitz, 927 F.2d 1376, 1384 (7th Cir.1991).

The attempt to attribute the lateness of the disclosures to Sherwin-Williams also ignores the fact that in the face of this claimed discovery noncompliance by Sherwin-Williams over a six-month period, the defendant did nothing. Were the situation what it is now claimed to have been, it is inconceivable that the plaintiff would have taken no action to secure an extension of the discovery schedule and/or compliance with the outstanding discovery now claimed to have been essential to the plaintiff's Rule 26(a) disclosures. Finally, and perhaps most importantly, the fact that the four letters that comprise the expert reports had been in existence since the spring and summer of 2009, but were not produced until the end of October 2010, demonstrates rather conclusively that the lateness of the disclosures was not causally linked to any act or omission by Sherwin-Williams.

The instant case demonstrates an unacceptable disregard of the deadlines set by the discovery schedule. The conduct of the plaintiff was little more than an impermissible arrogation by the plaintiff of the right to decide for itself when and what would be produced under Rule 26. But the Federal Rules of Civil Procedure do not permit what was, in effect, a re-writing by the plaintiff of the discovery schedule. Time and again the Seventh Circuit has emphasized that "[i]gnoring deadlines is the surest way to lose a case. Time limits coordinate and expedite a complex process; they pervade the legal system, starting with the statute of limitations. Extended disregard of time limits (even the non-jurisdictional kind) is ruinous. 'Lawyers and litigants who decide that they will play by rules of their own invention will find that the game cannot be won." ' United States v. Golden Elevator, Inc., 27 F.3d 301, 302 (7th Cir.1994)(parenthesis in original). In some contexts, a district court has the discretion to conclude that even a day's delay ought not be excused. Reales v. Consolidated Rail Corp., 84 F.3d 993, 996 (7th ...

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