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Beverly Kelley v. Board of Education of the City of Chicago

April 2, 2012

BEVERLY KELLEY, PLAINTIFF,
v.
BOARD OF EDUCATION OF THE CITY OF CHICAGO, DEFENDANT.



The opinion of the court was delivered by: Judge Lefkow

Magistrate Judge Cole

MEMORANDUM OPINION AND ORDER

The Board of Education for the City of Chicago ("the Board") moves for reconsideration of the order of March 13, 2012, which granted the plaintiff's motion to compel. To fully understand the motion, it is necessary to review the March 13th order in its entirety:

This is an age discrimination case in which the plaintiff has filed a second motion to compel. On July 12, 2011, the plaintiff filed a motion to compel responses to written discovery. That motion was heard before Judge Lefkow on July 18, 2011. The defendant was ordered to completely respond to all outstanding discovery as outlined in open court. (Dkt. 22). On March 2, 2012, the plaintiff filed this motion to compel document production, which was referred here. The categories of documents requested are broad and numerous -- perhaps objectionably so. The problem, however, is the way in which the defendant has responded. "An advocate's job is to make it easy for the court to rule in his client's favor . . . .," not to make it a struggle. Dal Pozzo v. Basic Machinery Co., Inc., 463 F.3d 609, 613 (7th Cir. 2006). As discussed below, the defendant's response leaves it to the court to make out the case in opposition to the motion. And that is not a judge's job. Alioto v. Town Of Lisbon, 651 F.3d 715, 721 (7th Cir. 2011).

As expansive as the definition of relevancy is under Rule 401 of the Federal Rules of Evidence, United States v. Murzyn, 631 F.2d 525, 529 (7th Cir. 1980); United States v. Marks, 816 F.2d 1207, 1211 (7th Cir. 1987), the standard under the discovery provisions of the Federal Rules of Civil Procedure is even broader. Hofer v. Mack Trucks, 981 F.2d 377 (8th Cir. 1992); Johnson v. Jung, 2007 WL 1373181, *2 (N.D.Ill. 2007). See generally Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978); Seattle Times Co. v. Rhinehart, 467 U.S. 20, 30 (1984). Under Rule 26, "[p]arties may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense." Fed.R.Civ.P. 26(b)(1).

The plaintiff's motion seeks an order compelling the defendant to produce a broad range of documents previously requested in the plaintiff's First Request for Production (Dkt 19). The motion sets out the controlling legal standard, and the plaintiff's argument is supported by citations to appropriate rules and to relevant case law. This is in marked contrast to the defendant's response, which fails to cite to a single authority in support of its objections to the plaintiff's requests.

Instead, in response to the plaintiff's specific requests, the defendant essentially argues one of two things, in some combination. First, that the information sought is somehow privileged, overly broad, not relevant, and/or unduly burdensome. Second, that the documents requested may already have been tendered to the plaintiff's attorney as part of a previously litigated case. None of the defendant's arguments are persuasive.

To begin, the defendant fails to mention what specific privilege the Board is trying to invoke, and it is not for me to guess at what is intended. Similarly, the defendant's contention that a given request is overly broad, not relevant, or unduly burdensome is uninformative and unsatisfactory. The defendant's ipse dixit recitation of boilerplate objections is thereby waived because such responses are improper.

If the party from whom the documents are requested objects to their production, that party has the burden to show why a discovery request is improper. See Rule 34(b); Gile v. United Airlines, Inc., 95 F.3d 492, 495 (7th Cir. 1996); United Auto Ins. v. Veluchamy 2010 WL 749980, *5 (N.D.Ill. 2010); In re Sulfuric Acid Antitrust Litigation, 231 F.R.D. 331, 337 (N.D.Ill. 2005). That burden cannot be met by a reflexive invocation of "the same baseless, often abused litany" that the requested discovery is "vague, ambiguous, overly broad, unduly burdensome," or that it is "not reasonably calculated to lead to the discovery of admissible evidence." Swift v. First USA Bank, No. 98-8238, 1999 WL 1212561 (N.D.Ill. 1999). Despite courts' repeated admonitions that these sorts of "boilerplate" objections are ineffectual, Joseph v. Harris Corp., 677 F.2d 985, 992 (3rd Cir. 1983), their use continues unabated, with the consequent institutional burdens, Szabo Food Service, Inc. v. Canteen Corp., 823 F.2d 1073, 1077 (7th Cir. 1987); Channell v. Citicorp Nat. Services, Inc., 89 F.3d 379, 386 (7th Cir.1996), and the needless imposition of costs on the opposing party. They are "'tantamount to not making any objection at all.'" E.E.O.C. v. Safeway Store, Inc., 2002 WL 31947153, *2-3 (N.D.Cal. 2002). See also In re Aircrash Disaster Near Roselawn, Ind. Oct. 31, 1994, 172 F.R.D. 295 (N.D.Ill. 1997) (rejecting generic, non-specific, boilerplate objections); Klein v. AIG Trading Group Inc., 228 F.R.D. 418, 424 (D.Conn. 2005) (overruling objections that "the familiar litany that the [requests] are burdensome, oppressive or overly broad"); American Rock Salt Co., LLC v. Norfolk Southern Corp., 228 F.R.D. 426, 432 (W.D.N.Y. 2005) ("generalized objections that discovery requests are vague, overly broad, or unduly burdensome are not acceptable"); Athridge v. Aetna Casualty and Surety Co., 184 F.R.D. 181, 190-91 (D.D.C. 1998)(rejecting general boilerplate objections); Roesberg v. Johns-Mansville Corp., 85 F.R.D. 292, 297 (E.D.Pa. 1980); Compagnie Francaise d'Assurance Pour le Commerce Exterieur v. Phillips Petroleum Co., 105 F.R.D. 16, 42 (S.D.N.Y. 1984); Klein v. AIG Trading Group Inc., 228 F.R.D. 418, 422 (D.Conn. 2005); Burkybile v. Mitsubishi Motors Corp., 2006 WL 2325506, *6-7 (N.D.Ill. 2006).

As my standing orders, which are based on and dictated by consistent Seventh Circuit precedent, make clear, unsupported motions will not be considered. Such motions and responses are deemed waived under the familiar and oft-cited principle that skeletal, perfunctory and unsupported presentations will not be considered. See e.g. Clarett v. Roberts, 657 F.3d 644, 674 (7th Cir.2011); Nelson v. Napolitano, 657 F.3d 586, 590 (7th Cir. 2011); United States v. Johnson, 643 F.3d 545 (7th Cir.2011); United States v. Useni, 516 F.3d 634, 658 (7th Cir.2008); United States Myrick v. Aramark Corp., 2004 WL 906176, *6 (N.D.Ill. 2004)(Lefkow, J.).

Finally, the argument that the defendant has already met its discovery burden, with respect to some requests, because the plaintiff's attorney may already be in possession of the requested discovery, from a separate case, is equally skeletal and more importantly, completely unsupported. The plaintiff is entitled to discovery in this case without regard to what may or may not have been provided in some other case. The plaintiffs' motion to compel document production [36] is granted.

The motion for reconsideration does not argue that the waiver doctrine was improperly applied or that the last paragraph of the order was erroneous. Rather, it contends that it is appropriate for a court to "'re-examine its decision in light of additional legal arguments, a change of law, or perhaps an argument or aspect of the case which was overlooked.' Ahmed v. Ashcroft, 388 F.3d 247 (7th Cir. 2004)." (Motion at 1). If the argument is that a motion for reconsideration may advance additional arguments not made in the opening brief, or that a motion for reconsideration is an appropriate vehicle to advance some aspect of the case that was overlooked by counsel, it is manifestly wrong. Not only was the excerpt selectively excised from Judge Posner's opinion not intended to articulate such a rule, but every case dealing with motions for reconsideration refutes it. Here is the portion of the opinion immediately following the snippet quoted in the motion for reconsideration: "Therefore [the motion for reconsideration] shall state the reasons for the motion by specifying the errors of fact or law in the [opinion].... 'Reconsideration is not an appropriate forum for...arguing matters that could have been heard during the pendency of the previous motion.'" Ahmed, 388 F.3d at 249. That is the situation in this case.*fn1

The motion for reconsideration also ignores the uniform cases that set forth with undeviating consistency the standards that govern analysis of motions for reconsideration. First, motions for reconsideration are viewed with disfavor. See e.g., Bank of Waunakee v. Rochester Cheese Sales, Inc., 906 F.2d 1185, 1191 (7th Cir. 1990);18B Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 4478 (2d ed. 2002). Second, a motion for reconsideration cannot be used to adduce evidence or arguments or theories that could and should have been advanced in the opening brief. Caisse Nationale de Credit Agricole v. CBI Industries, Inc., 90 F.3d 1264, 1270 (7th Cir. 1996);Bally Export Corp. v. Balicar Ltd., 804 F.2d 398, 404 (7th Cir. 1986).

These principles are based on sound institutional considerations. Spiraling dockets and the scarcity of judicial resources simply make impossible requests for judges to reconsider their decisions by parties anxious to have another go at it. If that were permissible, or if a motion to reconsider could be used a vehicle to raise arguments or introduce evidence that could and should have been adduced earlier, litigation would be prolonged interminably, cf. Mungo v. Taylor, 355 F.3d 969, 978 (7th Cir. 2004); Caisse Nationale de Credit Agricole v. CBI Indus., Inc., 90 F.3d 1264, 1269 (7th Cir. 1996), and the urgent interests of other litigants in prompt resolution of their cases would ...


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