United States District Court, N.D. Illinois, Eastern Division
SONEQUA E. FLEMMING and ROBIN CAIN HEARD, Plaintiffs,
HERMAN GUTIERREZ and ECOLAB, INC., a foreign corporation and LEASE PLAN, INC., Defendants.
MEMORANDUM OPINION AND ORDER
JEFFERY COLE UNITED STATE MAGISTRATE JUDGE.
12/10/15 order purported to adopt the parties' discovery
schedule. That schedule provided, inter alia, that
the plaintiffs were to comply with Rule 26(a)(2) by
disclosing the names of experts by 1/15/17 and their
26(a)(2)(B) reports by 3/15/17, with the “depositions
of plaintiff's [sic] experts” to be completed by
5/15/17. [Dkt. ##24, 25]. The defendants' experts were to
be named simultaneously with that of the plaintiff by 1/15/17
with their 26(a)(2)(B) reports due by 7/1/17 and with their
depositions to be completed by 9/1/17. [Dkt. ##24, 25].
2/20/17, plaintiffs filed what they titled,
“Disclosures to Rule 26(a)(2)” in which they
listed 12 individuals - 2 being named twice. [Dkt. #63]. The
plaintiffs explicitly said that the listed individuals were
being disclosed pursuant to 26(a)(2). [Dkt. #63]. This
appeared to be noncompliant with the scheduling order both as
a matter of timing and substance. On 3/14/17, the parties
filed an “Agreed Motion To Extend Discovery Deadline,
” requesting that “plaintiffs [have]” until
3/29/17 to name 26(a)(2) experts who “will be produced
for depositions by 5/29/17. [Dkt. #70]. The most recent
filing effectively concedes that the plaintiffs' filing
on 2/20/17 [Dkt. #63] was not the expert filing envisioned by
the court's scheduling order or Rule 26(a)(2) and that
they missed the 1/15/17 filing deadline by two and a half
exactly, the defendants have agreed to the present motion to
extend is not clear, especially in light of their pending
Amended Motion to Strike, which involves a doctor's
sudden claim that he now has an opinion that at his
deposition he disavowed. [Dkt. #68].
while counsel have agreed to the motion, courts are not bound
to enforce discovery agreements made by the lawyers. Instead
they have broad discretion to preserve the integrity and
purpose of the pretrial order and to insist that discovery be
conducted as is deemed necessary and appropriate. See
McCollum v. Puckett Mach. Co., 628 F.App'x 225, 228
(5th Cir. 2015); Ruleford v. Tulsa World Pub. Co.,
266 F.App'x 778, 786 (10th Cir. 2008); Valyou v.
VanNest, 2016 WL 7665445, at *2 (D. Wyo. 2016);
Pinks v. M&T Bank Corp., 2016 WL 1216813, at *2
(S.D.N.Y. 2016). No persuasive reason has been shown in this
case “‘why the discovery deadline should [be]
extended.'” Ruleford, supra.
as the agreed motion states - actually it is to extend two
deadlines - it is being made to enable the parties to pursue
settlement discussions: "[t]he parties are actively
pursuing settlement and wish to do so with further
expense." (Emphasis supplied). While the italicized
portion of the quote is likely a typographical error, it is
anything but certain that granting the motion will lead to a
minimization of expenses. Quite the contrary. It seems
likely, if not certain, that if the motion were to be
granted, there would exist the very real possibility of
further expenses being incurred. It is certainly not likely
that the plaintiffs' ability to now name “26(a)(2)
experts” - be they deemed initial or additional experts
- would facilitate or enhance the likelihood of settlement.
Precisely the opposite seems more likely, for it would
potentially provide the plaintiffs with one or more witnesses
who could not, as things now stand, be called at trial.
See Rule 37(c), Federal Rules of Civil Procedure.
Moreover, such an agreement would at least potentially give
rise to future extensive motion practice relating to the
to-be-named “experts, ” and the admissibility of
their testimony. Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579 (1993).
short, it does not appear that the granting of the motion
will conserve the parties' resources or facilitate
settlement. It is more likely to reward the plaintiffs for
not doing what was seemingly necessary to win the case and
for not doing what they were ordered to do in December 2015
[Dkt. #25] and what they asserted they had done on 2/20/17.
[Dkt. #63]. No reason is given in the Agreed Motion to
justify what appears to be the absence of effort and of good
cause that is required of all litigants. In fact, the
operative provisions of the Agreed Motion is only 5 1/4 lines
long. [Dkt. #70]. Parties cannot simply fail to comply with a
case management schedule and then insist and assume it will
be extended. See Hassebrock v. Bernhoft, 815 F.3d
334 (7th Cir. 2016); Winters v. Fru-Con
Inc., 498 F.3d 734, 743 (7th Cir. 2007); Gutierrez
v. AT&T Broadband, LLC, 382 F.3d 725, 733
(7thCir.2004); Grayson v. O'Neill,
308 F.3d 808, 816 (7th Cir.2002), cert. denied, 540
U.S. 824 (2003); Kalis v. Colgate-Palmolive Co., 231
F.3d 1049, 1057 n. 5 (7th Cir.2000); Salgado v. General
Motors Corp., 450 F.3d 735 (7th Cir. 1998);
Parker v. Freightliner Corp., 940 F.2d 1019, 1025
(7th Cir. 1991).
it should be noted that the Agreed Motion was filed two
months after the 1/15/17 deadline specified in the case
management order for the disclosure of name or names of
experts required by 26(a)(2). “We live in a world of
deadlines. If we're late for the start of the game or the
movie, or late for the departure of the plane or the train,
things go forward without us. The practice of law is no
exception.” Raymond v. Ameritech Corp., 442
F.3d 600, 606 (7th Cir.2006). The parties do not
“own” the discovery schedule, and cannot suspend
or extend discovery in accordance with their own desires.
There is an overriding public interest in prompt resolution
of legal disputes. Gray v. Schaub, 182 F.3d 921 (7th
Cir. 1999); Fort Howard Paper Co. v. Standard
Havens, Inc., 901 F.2d 1373, 1380 (7th Cir. 1990). There
is not only a cost to the public at large, which is
subsidizing a dispute resolution service, but to the other
litigants waiting in the queue for the court's attention.
See Chapman v. First Index, Inc., 796 F.3d 783, 787
(7th Cir. 2015); Fort Howard, 901 F.2d at 1380;
R-Boc Representatives, Inc. v. Minemyer, 66
F.Supp.3d 1124, 1130 (N.D.Ill. 2014). As discovery lingers
needlessly in one case, it takes time away from other cases.
parties are free, of course, to continue their attempts to
resolve the case amicably and they are encouraged to do so.
Indeed, the importance of settlements in the federal system
can't be overstated. Marek v. Chesny, 473 U.S. 1
(1985); Pierce v. Atchison, Topeka and Santa Fe Ry,
65 F.3d 562, 572 (7th Cir.1995). By the same token, parties
cannot and should not be forced to settle cases. Goss
Graphics Sys., Inc. v. Dev Indus., Inc., 267 F.3d 624,
627 (7th Cir. 2001); Strandell v. Jackson County,
Illinois, 838 F.2d 884, 887 (7th Cir. 1988). “If
the parties want to duke it out, that's their
privilege.” Goss Graphics Systems, Inc., 267
F.3d at 628.
motion is denied.
 A recent settlement conference in this
case ended without an agreement. Indeed, the lawyer who
attended the conference for the plaintiffs had not even
signed the settlement conference memorandum and was not the
person who had been responsible for the case. After a call to
his office regarding an offer by the defendant, he candidly
admitted that he ...