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Shott v. Rush University Medical Center

United States District Court, N.D. Illinois

January 7, 2015

Susan Shott, Plaintiff,
Rush University Medical Center, Defendant.


FREDERICK J. KAPALA, District Judge.

Plaintiff's objections to the magistrate judge's order [186] are overruled. Plaintiff's objections to the magistrate judge's report and recommendation [193] are overruled. The report and recommendation [191] is accepted, defendant's motion to strike [179] is granted in part and denied in part. Plaintiff shall be barred from relying on the documents set out herein.


Currently pending before the court are two sets of objections filed by plaintiff, Susan Shott, to orders entered by the magistrate judge. In the first, Shott objects to the magistrate judge's reopening of discovery for the limited purpose of permitting defendant, Shott's employer Rush University Medical Center, to take discovery on Shott's ethnicity, in light of her newly-amended complaint adding a § 1981 race-based-discrimination claim. Shott also objects to a report and recommendation from the magistrate judge recommending that this court bar her from using certain materials she failed to disclose in discovery. For the reasons which follow, both sets of objections are overruled, and the report and recommendation is accepted.

A. Objection to the Magistrate Judge's September 30, 2014 Discovery Order

On July 30, 2014, this court granted a motion from Shott, styled as a motion to reconsider but interpreted as a motion to amend her complaint, and permitted Shott to file an amended complaint alleging, in addition to the discrimination and retaliation claims already set out based on disability and religion, a § 1981 race-based-discrimination claim. The court did so because Shott represented that she had only recently discovered that her presumption as to her Jewish racial heritage was accurate. The court anticipated, naively perhaps given the tortured history of this litigation, that doing so would cause little additional burden on the parties, as Shott already had a Title VII claim based on her religion, Judaism, and the distinction between the two seemed to be relatively slight on the record the court had seen thus far. Nevertheless, the court provided Rush with the opportunity to request discovery on Shott's racial history, if it deemed it necessary or prudent. Apparently it did, and the magistrate judge allowed Rush to send Shott four interrogatories concerning her racial background, the investigation she performed which apparently led her to believe she was ethnically Jewish, and the contact information for her biological mother and brother. Rush also asked that Shott produce the documents she relied on in making her determination and were mentioned in her amended complaint. Shott objects to answering any discovery on the matter arguing that Rush long had notice of her claim that she was ethnically Jewish from her original filed complaint and her deposition.

"A district court may only overturn a magistrate's decision if the decision is clearly erroneous or is contrary to law.'" Jones v. City of Elkhart, Ind., 737 F.3d 1107, 1115 (7th Cir. 2013) (quoting Fed.R.Civ.P. 72(a)). "In short, " the district judge reviews magistrate-judge decisions "for clear error." Domanus v. Lewicki, 742 F.3d 290, 295 (7th Cir. 2014). "The clear error standard means that the district court can overturn the magistrate judge's ruling only if the district court is left with the definite and firm conviction that a mistake has been made." Weeks v. Samsung Heavy Indus. Co., 126 F.3d 926, 943 (7th Cir. 1997).

Here, the court is convinced that the magistrate judge made no error at all, and thus is not left with a definite and firm conviction that a mistake has been made. The court concurs that, at least by the time of Shott's deposition, [1] she had provided Rush notice that she believed she was ethnically Jewish because of her biological grandmother and subsequent investigation. Notice, however, is irrelevant to the issue at hand. The issue is whether Rush was dilatory in seeking discovery on her ethnicity prior to the close of discovery and thus should be so clearly barred from seeking it now that by allowing otherwise the magistrate judge clearly erred. Prior to the second amended complaint, filed after the close of discovery, there was no question of Shott's ethnicity in the case, as there was no racially-based § 1981 claim. Discovery is limited to requesting information that would be admissible at trial or could reasonably be calculated to lead to evidence which would be admissible at trial. See Fed.R.Civ.P. 26(b)(1); see id. advisory committee's 2000 note (noting that the Rule signals to the court that it should "confine discovery to the claims and defenses asserted in the pleadings, and signals to the parties that they have no entitlement to develop new claims or defenses that are not already identified in the pleadings."). Since there was no race-based claim during the time of discovery, Rush had no right to request discovery as to Shott's, at that time, irrelevant ethnicity. Simply put, Shott only made her ethnicity relevant for the purposes of discovery after the close of discovery and the magistrate's decision to permit Rush to seek information as to that new claim was not clearly erroneous. Accordingly, the objection is overruled.

B. The Magistrate Judge's November 6, 2014 Report and Recommendation and Shott's Objection Thereto

On March 13, 2014, after the close of discovery, Rush filed for summary judgment against each of Shott's then-existing claims. After Shott filed her response, Rush filed a motion to strike asserting that several hundred pages of documents referenced in and attached to Shott's response were never turned over to Rush in discovery. That motion, along with the summary judgment motion, was subsequently mooted when this court permitted Shott to amend her complaint to add the above-referenced § 1981 race-based discrimination claim. However, the court permitted that Rush could refile the motion to strike as a motion for sanctions under Rule 26 to bar the use of the documents not disclosed during discovery. Rush took the court up on that invitation (although, strangely enough, still entitled the motion a motion to strike despite the fact that there was nothing on the record to strike), and moved that this court bar her use of those documents in opposing its anticipated motion for summary judgment.

After thoroughly reviewing the motion, its hundreds of pages of attachments, and Shott's response, which also had hundreds of pages of exhibits, the magistrate judge identified 390 pages of documents which were apparently in contention. The magistrate judge recommends denying the motion as to the bulk of those documents, identifying only a relatively small sub-set of documents which were, in the magistrate's view, violative of Rule 26 and thus subject to a bar. That sub-set is addressed in sections 1 and 2 below. Rush has not objected to the magistrate judge's recommendation to deny those portions he felt did not violate the discovery rules, and the court having reviewed the record and the magistrate judge's reasons for recommending denial, concurs with the magistrate judge and accepts the unopposed recommendation at least insofar as it denies Rush's motion. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); Thomas v. Arn, 474 U.S. 140, 149-50 (1985). However, Shott has objected to the parts of the magistrate judge's order recommending that this court grant Rush relief. This court reviews the objected-to portions of the magistrate judge's report and recommendation de novo. See 28 U.S.C. § 636(b)(1).

1. The Public Documents

The magistrate judge first recommends barring Shott from using exhibits 30-N, 30-R, 30-T, 31-H, and 31-K[2] in responding to Rush's anticipated motion for summary judgment. The magistrate made that recommendation because Shott admittedly did not provide those documents during discovery, and her only excuses for having failed to do so is that they are "public documents" available to both parties and that she apparently provided language in her discovery responses to the effect that she was not going to provide public documents.

Rule 26 provides an obligation for a party to turn over a copy, or a description by category and location, of all documents or things that will be used to support its claims or defenses without the need for a discovery request. Even if Shott did not have the "public documents" under her control at the time of the Rule 26 initial disclosure, Rule 26 also requires ongoing supplementation of the Rule 26 disclosures if, at some point, it turns out the initial disclosure was incomplete. Clearly, sometime prior to her use of those ...

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