United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
Jeffrey Cole Magistrate Judge
parties in this case have filed cross-motions to compel
discovery, with both sides resorting to the nuclear option of
asking for a default judgment/dismissal of the case as a
sanction for their opponent's claimed recalcitrance.
Before proceeding further it should be noted that the motions
and that dismissal of a complaint as a discovery sanction
was, of course, within the district court's undoubted
authority. Therefore, the briefs do not address the question
of whether a magistrate judge as a discovery sanction can
dismiss a Complaint or whether he is restricted solely to a
Report and Recommendation. The case was then sent here, and
there is a significant question in this Circuit whether a
magistrate judge has the authority to issue a dismissal or a
default judgment as a discovery sanction. The parties quite
properly assumed the district judge possessed that power and
thus did not address the scope of my authority. But that may
become a very real question. See discussion and
cases cited in Jeffrey Cole, The Seventh Circuit's
Prohibition Against Magistrate Judges Issuing Sanctions Under
Rule 37, The Circuit Rider (April 2013). For now,
however, the parties need not address the issue.
dismissal of a Complaint (or default) as a sanction is often
extreme. It is especially extreme - and improper - where the
parties have never discussed their differences over their
discovery requests and responses, as they are required to do.
And that is precisely what the respective motions show. It is
simply not an option either to ignore each other or to let
one side thwart the obligations each party has.
Fed.R.Civ.P. 37(a)(1), all motions seeking to compel
discovery “must include a certification that the movant
has in good faith conferred or attempted to confer with the
person or party failing to make disclosure or discovery in an
effort to obtain it without court action.” The court
has discretion to deny any discovery motion filed without
such certification. Kalis v. Colgate-Palmolive Co.,
231 F.3d 1049, 1059 (7th Cir. 2000). While the federal rule
is clear, Local Rule 37.2 is more specific:
this court shall hereafter refuse to hear any and all motions
for discovery and production of documents under Rules 26
through 37 of the Federal Rules of Civil Procedure, unless
the motion includes a statement (1) that after consultation
in person or by telephone and good faith attempts to resolve
differences they are unable to reach an accord, or (2)
counsel's attempts to engage in such consultation were
unsuccessful due to no fault of counsel's. Where the
consultation occurred, this statement shall recite, in
addition, the date, time and place of such conference, and
the names of all parties participating therein. Where counsel
was unsuccessful in engaging in such consultation, the
statement shall recite the efforts made by counsel to engage
party has included any such certification with their motions.
Indeed, based on their submissions, neither side has even
attempted - never mind attempted in good faith - to comply
with the federal rule or the local rule. Defendant's
counsel tells us that when discovery issues came up, he wrote
opposing counsel a letter on January 20, 2017. [Dkt. # 42, at
5]. Prior to that, his only contact with opposing counsel on
these issues was a November 23, 2016 email. [Dkt. #42-6, at
plaintiff's counsel's only attempt to communicate
regarding these discovery disputes has been through multiple
emails during the first week of March 2017. [Dkt. # 45, Ex.
A]. Local Rule 37.2 makes it plain that letters and emails
don't count, and with good reason. Letters and emails are
easily ignored. See Infowhyse GmbH v. Fleetwood
Grp., No. 15 CV 11229, 2016 WL 4063168, at *1 (N.D. Ill.
July 29, 2016); Slaven v. Great Am. Ins. Co., No. 11
C 7993, 2014 WL 4470723, at *2 (N.D. Ill. Sept. 11, 2014);
O'Toole v. Sears, Roebuck & Co., 302 F.R.D.
490, 491 (N.D. Ill. 2014).
history of the apparent non-responses by defense
counsel's emails is disturbing. The recourse in such a
case is to seek judicial intervention not to be the silent
victim of what is claimed to be impermissible conduct. What
neither side has done, based on their submissions, is to have
picked up the telephone and either had a meaningful and good
faith conversation or arranged a face-to-face meeting where
they could discuss comprehensively the discovery at issue.
That is contrary to the discovery provisions of the Federal
Rules of Civil Procedure and to the obligations that each
party and their lawyers owe not only to the court but to
their opponents. See Mommaerts v. Hartford Life &
Accident Ins. Co., 472 F.3d 967, 968 (7th Cir. 2007);
Landerman v. Tarpon Operating and Development,
L.L.C., 2014 WL 6332824, 2 (E.D.La. 2014); Pioneer Drive,
LLC v. Nissan Diesel America, Inc., 262 F.R.D. 552, 554
(D.Mont. 2009). As Learned Hand said in another context,
“[j]ustice is not a game.” United States v.
Paglia, 190 F.2d 445, 448 (2nd Cir.1951). No wonder
protracted discovery is deemed the bane of modern litigation.
Rossetto v. Pabst Brewing Co., Inc., 217 F.3d 539,
542 (7th Cir. 2000).
for the parties are directed to meet within two weeks of this
order, and confer in good faith regarding
the discovery requests at issue; they are not to write emails
or, given their history in this case thus far, merely speak
on the telephone. The two law firms are several blocks from
one another, and it is not too much to ask that they meet
with each other and follow the Federal Rules of Civil
Procedure and the Local Rules. If, in the unlikely even they
are unable to resolve their differences, they must file a
joint certification containing a detailed statement of their
efforts to resolve their disputes over each one of the
requests at issue, along with the time spent on each request.
The statement must also include their final positions,
supported by pertinent authority, on each request that
remains in dispute.
statement should be sufficiently detailed to allow a real
appreciation of the parties' efforts, and allow the court
to determine whether they actually did confer in good faith.
Only then will any further motions to compel be considered.
See the procedure outlined in Autotech Techs.
Ltd. P'ship v. ...