United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
Z. Lee United States District Judge
November 18, 2013, Plaintiff Marcus Harrington sued
Defendants, Chicago Police Officers Derek Duszak and Jaime
Weber, for violating his constitutional rights and
maliciously prosecuting him in violation of state law.
Ultimately, the case proceeded to a jury trial on claims of
excessive force as to both officers and failure to intervene
as against Officer Duszak. On April 15, 2016, the jury
returned a verdict in favor of Officers Duszak and Weber.
now moves for post-trial discovery and a new trial based on
alleged discovery misconduct by Defendants and evidentiary
decisions of this Court that Plaintiff considers erroneous.
For the reasons provided below, Plaintiff's motions for
post-trial discovery  and a new trial  are denied.
identifies six problems that he believes, both independently
and cumulatively, necessitate a new trial. The first problem
pertains to Injury-on-Duty Reports detailing injuries
Officers Duszak and Weber suffered in the incident giving
rise to this case. See Pls.' Am. Mem. Supp. Mot.
New Trial 2-4. Plaintiff explains that, despite requesting
these reports in discovery, they were not produced.
Id. at 2-3. When their existence came to light at
trial, the Court ordered Defendants to produce the reports
and presented Plaintiff with various options to utilize them.
Id. at 3-4. Plaintiff declined. Id. at 4.
In Plaintiff's view, Defendants' delayed production
violated the discovery rules and prejudiced his presentation
at trial. Plaintiff seeks post-trial discovery to determine
why the reports were not produced.
second problem that Plaintiff identifies also involves
Defendants' purported failure to satisfy their duty to
disclose material in discovery. At issue in this instance,
however, are Complaint Register files pertaining to Officer
Duszak that Plaintiff believes were fairly requested but not
produced. Id. at 4.
final four problems Plaintiff identifies relate to
evidentiary decisions the Court made at or before trial.
These decisions were: (1) to permit evidence of the firearm
that Plaintiff was carrying when the altercation at issue in
this case occurred; (2) to permit evidence of Plaintiff's
2012 conviction for unlawful aggravated use of a firearm; (3)
to order and permit Defendants to show a videotaped
deposition of Lieutenant Roche, a witness for Defendants who
could not attend the trial; and (4) to prohibit Plaintiff
from suggesting in closing argument that Defendants'
actions were motivated by Plaintiff's race. Id.
at 4-6, 21. Plaintiff believes each of these decisions was
erroneous and prejudicial.
has moved for a new trial on the basis of Federal Rules of
Procedure 59(a), 60(b)(1), and 60(b)(3). Following a jury
trial, a court may grant a new trial “for any reason
for which a new trial has heretofore been granted in an
action at law in federal court.” Fed.R.Civ.P. 59(a).
Reason to grant a new trial arises “if the verdict is
against the clear weight of the evidence or the trial was
unfair to the moving party.” David v. Caterpillar,
Inc., 324 F.3d 851, 863 (7th Cir. 2003). The movant
faces a heavy burden and must demonstrate that
“‘no rational jury' could have rendered the
verdict.” Moore ex rel. Estate of Grady v.
Tuelja, 546 F.3d 423, 427 (7th Cir. 2008) (quoting
King v. Harrington, 447 F.3d 531, 534 (7th Cir.
first argues that Defendants' failure to disclose the
Injury-on Duty (IOD) Reports at issue violated Rules 26(e)
and 26(g), and a new trial is therefore warranted. Under Rule
26(e), “A party who has made a disclosure under Rule
26(a) . . . must supplement or correct its disclosure or
response . . . in a timely manner if the party learns that in
some material respect the disclosure or response is
incomplete or incorrect, and if the additional or corrective
information has not otherwise been made known to the other
parties . . . .” Fed.R.Civ.P. 26(e). Additionally,
under Rule 26(g), every discovery response must be signed by
an attorney of record, thereby certifying-to the best of the
attorney's “knowledge, information, and belief
formed after reasonable inquiry”-that the response is
rule-compliant. Fed.R.Civ.P. 26(g). Attorney misconduct in
the discovery process, including violations of Rule 26, can
warrant a new trial. See Brandt v. Vulcan, Inc., 30
F.3d 752, 758 (7th Cir. 1994). A new trial is “dramatic
relief, ” however, and is not warranted unless the
movant demonstrates (1) attorney misconduct occurred and (2)
prejudice resulted that necessitates a new trial.
preliminary matter, the Court will assume for the purposes of
deciding this motion that attorney misconduct occurred in
violation of Rules 26(e) and 26(g). Defendants have conceded
that the IOD Reports fell within the scope of Plaintiff's
initial production requests, Defs.' Resp. Pl.'s Mot.
New Trial 4, and gone as far as to admit, “There is no
question the City should have produced the IOD Reports prior
to trial.” Defs.' Resp. Pl.'s Mot. Post-Trial
Discov. 5. While some courts have held that a party cannot
violate Rule 26(e) unless it actually learns of new
information, e.g., Jones v. Walters, No.
12-CV-5283, 2016 WL 1756908, at *9 (N.D. Ill. Apr. 29, 2016),
the better view is that Rule 26 requires a party to disclose
not only known information, but also information “he or
she should have been aware of.” 6 James Wm. Moore, et
al., Moore's Federal Practice § 26.131 (3d ed.
2015); see also 8A Charles Alan Wright, et al.,
Federal Practice and Procedure § 2049.1 & n.4 (3d
ed. 2010) (stating that “[a]lthough it is important to
avoid traps for the unwary or innocently ignorant, courts
look with disfavor on claims that counsel did not recognize
that important new items of information should be disclosed,
” and collecting cases).
seem to accept this view, admitting that “with the
benefit of hindsight, a better practice would have been [for
Defendants] to re-check their production responses, shortly
before trial, to see if the reports existed and had been
produced.” Defs.' Resp. Pl.'s Mot. New Trial 5.
The Court agrees. Rule 26(e) does not permit Defendants to
hide behind the efforts of past counsel, id. at 4,
nor to pass blame to Plaintiff by demanding more than the
rules of discovery require. Id. at 5- 6;
see Moore's Federal Practice, supra, at
§ 26.131 (“The duty to supplement does not
depend on repeated requests by ...