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Lowe v. CVS Pharmacy, Inc.

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

January 30, 2017

CARL LOWE and KEARBY KAISER, on behalf of themselves and others similarly situated, Plaintiffs,


          John Z. Lee United States District Judge

         Plaintiffs 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 [189] are overruled and their motion [265] is denied.


         The 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.

         Initially, 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.

         More 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 data.

         Legal Standard

         The 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).

         It is 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).


         Plaintiffs 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, [1] Plaintiffs have not demonstrated that denying exclusion was clearly erroneous, as the Court explains below.

         Plaintiffs' 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 7.

         First, 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.

         With 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, [2] thus undermining their claims of ...

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