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Hespe v. City of Chicago

United States District Court, N.D. Illinois, Eastern Division

December 15, 2016

KELLY HESPE, Plaintiff,


          JORGE L. ALONSO United States District Judge

         Before the Court is defendants' motion [151] for ruling on their objections to Magistrate Judge Mason's ruling in his April 27, 2016 Order [147].[1] For the reasons stated below, the Court overrules defendants' objections.


         Plaintiff Kelly Hespe, a Chicago police officer, filed this lawsuit against the City of Chicago and two individual Chicago police officers. Plaintiff's central claim is sex discrimination and hostile work environment under Title VII of the Civil Rights Act, 42 U.S.C. §§ 2000e et seq. As Magistrate Judge Mason summarized in the Order defendants now challenge, plaintiff alleges that her supervisor, defendant Gerald Breimon, “sexually harassed her by pursuing a romantic relationship with her for over three years, . . . the City created a hostile work environment by failing to take prompt action to protect her, and . . . [defendant Sarah]

         McDermott threatened to harm plaintiff, in part, because she rebuffed Breimon's attention.” (Apr. 27, 2016 Order, ECF No. 147, at 1.) The defendants' position is that Breimon and plaintiff were in a fully consensual, romantic relationship, and there was no unwelcome harassment or discrimination.

         In response to discovery requests, plaintiff produced numerous photographs, voice mail messages, emails and text messages that she had received from Breimon. Defendants learned during the October 22, 2015 deposition of plaintiff's mother, Susan McKay, that McKay was in possession of thousands of additional voice mail and text messages. At plaintiff's November 30, 2015 deposition, plaintiff confirmed that she had sent these materials to her mother for safekeeping because she was running out of space on her computer.

         On December 30, 2015, pursuant to subpoena, McKay produced to defendants all the electronically stored information (“ESI”) concerning plaintiff and Breimon that was in her possession. In particular, she produced 5, 748 text messages, a number that dwarfed the 850 plaintiff had initially produced in this case. Based in part on the discovery of this additional information, defendants filed a motion to extend the discovery deadline and compel plaintiff to submit to an extension of her deposition. Magistrate Judge Mason, who supervised discovery in this case (see ECF No. 67), granted the motion in part, extending the discovery deadline to March 16, 2016, and granting defendants leave to depose plaintiff for three and a half additional hours. (See Jan. 7, 2016 Order, ECF No. 118; Feb. 17, 2016 Order, ECF No. 131.) Judge Mason warned that no further discovery extensions would be granted. (ECF No. 131, at 5.)

         Defendants deposed plaintiff again on March 2, 2016. At the conclusion of the deposition, defense counsel informed plaintiff that she “would like an opportunity to inspect plaintiff's computer . . . and her cell phone” to search for any unproduced communications with Breimon. (Excerpts of Pl.'s Dep., 516:3-7, ECF No. 133-2, at 96.) Plaintiff's counsel stated that he opposed the request.

         After attempting to confer with plaintiff, as required under Rule 37(a)(1), defendants filed a motion to extend discovery and compel plaintiff to produce her electronic devices for inspection, arguing that they could not rely on plaintiff's representation that she had produced all the ESI documenting her correspondence with Breimon because, at her March 2, 2016 deposition, she had made ambiguous statements about the manner and completeness of her production. According to defendants, plaintiff admitted at the March 2 deposition that “the McKay text messages were saved on her (Plaintiff's) home computer, ” although McKay produced them to defendants and plaintiff did not; plaintiff gave her attorneys “some” of the McKay text messages at one point, but she was unsure when or whether she gave them all of them; and plaintiff took no specific steps to preserve electronically stored information (“ESI”), although she did not intentionally delete anything other than “dirty” pictures Breimon had sent her. (Mot. ¶ 18, ECF No. 133; Mot., Ex. 3, Excerpts of Pl.'s Dep., 501:16-503:22, 506:6-510:21, 512:4-516:9, ECF No. 133-2, at 84-96.) Defendants sought to perform a forensic inspection of plaintiff's devices to search for unproduced ESI and attempt to recover any relevant ESI that may have been deleted.

         In his April 27, 2016 Order (ECF No. 147), Magistrate Judge Mason denied the motion to compel. Judge Mason explained that the requested forensic inspection of plaintiff's electronic devices was not proportional to the needs of the case, especially considering plaintiff's privacy and confidentiality interests in her personal devices. Further, Judge Mason reasoned that the motion was not based on any new developments that truly arose at the March 2 deposition; rather, to the extent there was any reason to doubt the completeness of plaintiff's production, it had arisen months before then.

         Defendants timely filed objections to Judge Mason's Order.


         I. Legal Standards

         Where, as here, a district court considers timely objections to a magistrate judge's rulings on nondispositive matters, the magistrate judge's rulings will be modified or set aside only if they are “clearly erroneous or . . . contrary to law.” Fed.R.Civ.P. 72(a); see also Domanus v. Lewicki, 742 F.3d 290, 295 (7th Cir. 2014). Under the clear-error standard of review, “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).

         Federal Rule of Civil Procedure 26(b)(1) defines the scope of discovery as follows:

Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, ...

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