United States District Court, N.D. Illinois, Eastern Division
CARL LOWE and KEARBY KAISER, on behalf of themselves and others similarly situated, Plaintiffs,
CVS PHARMACY, INC., MINUTECLINIC, LLC, and WEST CORPORATION, Defendants.
MEMORANDUM OPINION AND ORDER
Z. Lee United States District Judge
Carl Lowe and Kearby Kaiser (“Plaintiffs”), on
behalf of themselves and others similarly situated, have
brought this action against CVS Pharmacy, Inc., MinuteClinic,
LLC, and West Corporation (“Defendants”).
Plaintiffs' claims arise under the Telephone Consumer
Protection Act (TCPA), 47 U.S.C. § 227, and the Illinois
Automatic Telephone Dialers Act (ATDA), 815 Ill. Comp. Stat.
305/1 et seq. They allege Defendants used an
automated dialing system to place unsolicited, prerecorded
calls to Plaintiffs and others. Before the Court are
Plaintiffs' objections to Magistrate Judge Mason's
order striking their request to exclude certain data relevant
to Defendants' affirmative defense of consent, as well as
Plaintiffs' motion to exclude additional untimely consent
data, supplement their objections, and compel explanation of
data. For the following reasons, Plaintiffs' objections
 are overruled and their motion  is denied.
present dispute arises over data that Defendants have
produced in discovery that is relevant to their affirmative
defense of prior express consent. Pls.' Objection 1, ECF
No. 189. In a joint filing before this Court on March 14,
2016, Defendants represented that they would produce all
consent data by April 15, 2016, and requested that the close
of fact discovery be extended to June 13, 2016. Joint Mot.
Extension Discovery Deadlines 7, ECF No. 146. The Court
granted the parties' request to extend the deadline for
fact discovery “along the lines of the deadlines that
[were] proposed by the parties in the motion.” Hr'g
Tr. of Apr. 5, 2016, 12:11- 16, ECF No. 182. Defendants did
not, however, adhere to the deadline for producing consent
data. Rather, Defendants continued to produce consent data
after April 15 on a rolling basis, resulting in
Plaintiffs' receipt of the “bulk” of
Defendants' consent data between April 22, 2016, and May
12, 2016, and thereby reducing the amount of time between
Plaintiffs' receipt of the data and the close of fact
discovery. Pls.' Objection at 2.
on April 21, 2016, Plaintiffs moved before Magistrate Judge
Mason to have all late-produced consent data excluded or, in
the alternative, immediately produced. Pls.' Mot. Exclude
or Compel Consent Materials, ECF No. 173. Magistrate Judge
Mason took their motion under advisement. Order of Apr. 25,
2016, ECF No. 176. Later, on May 9, 2016, Plaintiffs filed a
supplemental status report further elaborating the prejudice
caused by Defendants' delayed production. Pls.'
Status Report, ECF No. 178. On May 23, 2016, Magistrate Judge
Mason struck Plaintiffs' motion to exclude the
late-produced consent data, stating that Defendants'
delayed production mooted Plaintiffs' request to exclude.
Order of May 23, 2016, ECF No. 187. Plaintiffs filed
objections to Magistrate Judge Mason's ruling soon
thereafter before this Court.
recently, on January 9, 2017, Plaintiffs moved to exclude
additional consent data that Defendants produced that day.
Defendants assert that they produced this data as soon as
possible after disclosing separate, corresponding call data
in December 2016. Defs.' Resp. Pls.' Mot. Exclude
Addtl. Untimely Consent Data 1-2, ECF No. 267. In addition,
Plaintiffs supplemented their objections to Magistrate Judge
Mason's order and requested that the Court order
Defendants to explain certain aspects of the call and consent
Court reviews a magistrate judge's order on a
nondispositive pretrial matter only to determine whether it
is “clearly erroneous or contrary to law.”
Fed.R.Civ.P. 72(a). Under this standard, a 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). Thus, an objecting party must satisfy a heavy burden
in persuading the Court to modify the magistrate judge's
ruling. Finwall v. City of Chi., 239 F.R.D. 504, 506
(N.D. Ill. 2006).
within the Court's discretion to exclude evidence on the
basis of discovery violations, including missed deadlines.
Id. at 506-07. But such exclusion is not required if
the violation is either substantially justified or harmless.
David v. Caterpillar, Inc., 324 F.3d 851, 857 (7th
Cir. 2003). In determining whether exclusion is appropriate,
the Court considers the following factors: (1) prejudice or
surprise to the party against whom the nondisclosed evidence
is offered; (2) the ability of the harmed party to cure the
prejudice; (3) the likelihood of disruption at trial; and (4)
the bad faith or willfulness involved in not disclosing the
evidence at an earlier date. Keach v. U.S. Trust
Co., 419 F.3d 626, 640 (7th Cir. 2005).
lodge two primary objections to Magistrate Judge Mason's
order denying their motion to exclude. First, Plaintiffs
argue the order did not consider whether, under Rule 16,
there was “good cause” to extend the parties'
agreed deadline for Defendants to produce consent data.
Pls.' Objection at 7. This argument, however, was not
presented before the magistrate judge. Arguments not raised
before a magistrate judge are waived and cannot be raised in
objecting to the judge's order. Finwall, 239
F.R.D. at 506 (citing United States v. Melgar, 227
F.3d 1038, 1040 (7th Cir. 2000)). And in any case, even
assuming that Defendants violated Rule 16,  Plaintiffs have
not demonstrated that denying exclusion was clearly
erroneous, as the Court explains below.
second objection to Magistrate Judge Mason's order is
that he did not consider the prejudice they suffered as a
result of Defendants' delayed production, which
Plaintiffs contend warrants exclusion. Pls.' Objection at
9. As a threshold matter, Plaintiffs bemoan the magistrate
judge's ruling on their motion to exclude “without
presentment, briefing, or a hearing.” Id. at
13. Substantively, Plaintiffs assert that they were
prejudiced by Defendants' delayed production of
substantially more consent data than Defendants had
previously represented, such that “Plaintiffs [had]
substantially less time than previously budgeted to analyze
and review exponentially more consent data than disclosed,
and to complete necessary discovery on that issue.”
Id. at 10. Plaintiffs further note that
Defendants' “scattershot” production of
consent data on a rolling basis and in an unsatisfactory
format reduced the amount of time Plaintiffs' expert had
to analyze the data in advance of the close of fact
discovery. Id. To that end, Plaintiffs assert that
they did not have sufficient time to prepare for depositions
with the benefit of having analyzed the data. Id. at
in regard to Plaintiffs' complaint that Magistrate Judge
Mason did not afford them the opportunity for presentment,
briefing, or a hearing, the record belies the notion that the
magistrate judge did not afford Plaintiffs an opportunity to
expound their claims of prejudice. Not only did the
magistrate judge take Plaintiffs' initial motion under
advisement-meaning he considered the motion, which included
claims of prejudice, without affording Defendants an
opportunity to formally respond-but Plaintiffs also submitted
a status report discussing their pending motions that
containing an exhibit in which their expert outlined the
difficulties caused by Defendants' delayed production.
Based on the record, Magistrate Judge Mason gave Plaintiffs
ample opportunity to present their claims of prejudice.
these claims of prejudice in mind, Magistrate Judge Mason
concluded that Defendants' production of the data at
issue, even though delayed, was sufficient to resolve the
matter. And while his entry striking Plaintiffs' motion
did not discuss prejudice, the magistrate judge's
decision to deny exclusion was not clearly erroneous in light
of Plaintiffs' arguments. While Plaintiffs describe in
such detail the amount of data Defendants delayed in
producing and the difficulties that the amount and form of
this data presented, Plaintiffs have not identified any areas
of fact discovery that they were unable to explore, nor any
depositions they believe were incomplete or unsatisfactory,
due to Defendants' delayed production and Plaintiffs'
resulting inability to analyze the data at issue. As the
Court told the parties before Plaintiffs filed their
objections, “To the extent that anyone needs to be
redeposed because of various discovery issues, so be it. And
[the Court] will entertain requests to assess costs and fees
with regard to any depositions that need to be done again due
to any non-compliance with the discovery deadlines.”
Hr'g Tr. of May 25, 2016, 12:17-21, ECF No. 213.
Plaintiffs have not, however, requested any such relief,
thus undermining their claims of ...