United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
Magistrate Judge Jeffrey Cole
plaintiffs, three former tenured teachers who were laid off
or terminated - that's a point of contention - based on
unsatisfactory ratings, have issued subpoenas to two former,
highly-placed officials with the Board of Education: Ron
Huberman, CEO from 2009 to 2010; and Alicia Winckler, human
resources director from 2009 to 2014. The subpoenas'
topic is “the Board's consideration, adoption,
implementation, and communications of and regarding its
policies regarding teacher evaluations and teachers with
unsatisfactory ratings.” The Board has moved to quash
those subpoenas, arguing that the two targets have no have no
knowledge of the facts relating to the plaintiffs'
layoffs/terminations or the facts relating to their
unsatisfactory performance ratings. But unsupported
statements in briefs are not evidence and do not count.
See, e.g., Woolard v. Woolard, 547 F.3d 755, 760
(7th Cir.2008); United States v. Stevens, 500 F.3d
625, 628-29 (7th Cir.2007). The supporting Declaration of Ms.
Winkler says she has “no direct” knowledge. Mr.
Huberman did not file a Declaration. “Lawyers' talk
is no substitute for data, ” Phillips v.
Allen, 668 F.3d 912, 916 (7th Cir. 2012), and
what has been filed is not in this case a sufficient basis to
excuse the declarant. Were the rule otherwise, few
depositions would be allowed. Johnson v. Jung, 242
F.R.D. 481, 483 (N.D.Ill.2007). But the public is generally
entitled to every man's evidence. United States v.
Jicarilla Apache Nation, 564 U.S. 162 (2011). Even the
President of the United States is not immune from deposition.
Clinton v. Jones, 520 U.S. 681, 704-05 (1997).
See also Armada (Singapore) Pte Ltd v. Amcol Int'l
Corp., 160 F.Supp.3d 1069, 1070 (N.D. Ill. 2016).
their part, the plaintiffs have filed a motion to compel
discovery of documents and information: (1) agendas,
administrative reports, videos, minutes, audio recordings and
transcripts of its closed-session Executive Board meetings
during which topics relevant to this suit were discussed,
including the initial adoption and implementation of the
illegal policy of using “layoffs” as pretext for
disguised terminations; (2) information relating to the
Board's policies and practices regarding
“layoffs” in years 2010 and 2011 (one to two
years prior to the Plaintiffs' “layoffs” in
2012); and (3) job postings and vacancy reports which list
vacant teaching positions.
they appeared here recently, it was clear the two sides had
very different ideas regarding what this case was about, what
Judge Wood's recent order had meant, and, consequently,
what matters are relevant to their claims and/or defenses -
relevancy under Rule 26 being largely a function of the
claims and defenses in the case.
seemed to stem from their competing interpretations of Judge
Wood's order denying the Board's motion to dismiss,
and developments in the docket that came thereafter. The
parameters of discovery, of course, are delineated by the
parameters of the case. Fed.R.Civ.P. 26(b)(1) allows
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, and whether the burden or expense of the proposed
discovery outweighs its likely benefit.
discovery rules are not a ticket to an unlimited,
never-ending exploration of every conceivable matter that
captures an attorney's interest. Vakharia v. Swedish
Covenant Hosp., 1994 WL 75055 at *2
(N.D.Ill.1994)(Moran, J.). “Parties are entitled to a
reasonable opportunity to investigate the facts-and no
more.” Id. Even before the limitation in Rule
26 that a party may obtain discovery on matters relevant to a
claim or defense, the Supreme Court had cautioned that the
requirement of Rule 26 that the material sought in discovery
be “relevant” should be firmly applied, and that
“judges should not hesitate to exercise appropriate
control over the discovery process.” Herbert v.
Lando, 441 U.S. 153 (1979). See also Oppenheimer
Fund, Inc., 437 U.S. at 352. Failure to exercise that
control results in needless and enormous costs to the
litigants and to the due administration of justice.
use of the court's case-management authority during the
litigation can help to check overlawyering, and appropriate
limits on discovery can effectively channel the efforts of
counsel before excessive time and resources are
expended. Montanez v. Simon, 755 F.3d 547, 552 (7th
Cir.2014). Cf. Bell Atlantic Corp. v. Twombly, 550
U.S. 544 (2007); Frank Easterbrook, Discovery as
Abuse, 69 B.U.L.Rev. 635 (1989). See also Hickman v.
Taylor, 329 U.S. 495, 507-508 (1947).
stands, with a second amended complaint and a pending motion
to dismiss that complaint that is based in large part on
Judge Wood's earlier Opinion, the case is in a state of
flux and a ruling on these discovery motions would be
premature, and may have to be revisited when Judge Wood rules
on the new motion to dismiss. As such, briefing on the
motions [Dkt. ## 146, 149] is suspended and they are denied
without prejudice to the parties' refiling and briefing
them when Judge Wood resolves the pending motion to dismiss,
and again defines the parameters of the case. A brief history
of these proceedings should serve to illuminate this order.
ruling on the Board's motion to dismiss the
plaintiffs' first amended complaint, Judge Wood set out
the parameters of this case - and thus, of discovery - at
that time. She noted that, based on clear precedent, public
employees like the plaintiffs have a protected interest in
their jobs only if a contract or statute creates such an
interest. [Dkt. #102 at 3, citing Reid v. Nolan, 663
F.3d 287, 296 (7th Cir. 2011)]. Judge Wood found
that the Illinois School Code did not create such an interest
and neither did the operative collective bargaining agreement
between the plaintiffs and the Board. [Dkt. # 102, at 3].
Judge Wood stated that:
Plaintiffs contend that the operative agreement for the
purpose of defining that right is a 2007 collective
bargaining agreement that by its own terms expired June 30,
2012 - i.e., before any of the layoffs at issue.
(2007 Collective Bargaining Agt., First Am. Compl. Ex D, Dkt.
No. 21-4.) The successor agreement, effective July 1, 2012,
explicitly made teachers with unsatisfactory ratings,
regardless of tenure or seniority, first in the order of
those to be laid off. (2012 Collective Bargaining Agt. Appx.
H. at 273, Mot. to Dismiss Ex. D, Dkt. No. 25-4). Plaintiffs
believe that the question of which agreement governs this
dispute should be determined by the dates of their
unsatisfactory performance ratings, and they argue that their
view regarding the application of the 2007 agreement must be
accepted as true at the pleading stage. But the Court is not
bound to accept a pleader's allegations regarding the
effect of an exhibit and instead may independently examine
the document and reach its own conclusions on its proper
construction. Rosenblum v. Travelbyus.com Ltd., 299
F.3d 657, 661 (7th Cir. 2002). With this lawsuit, Plaintiffs
seek relief for layoffs that occurred during the term of the
2012 agreement, not for their original performance ratings.
Since the 2012 agreement explicitly allowed the layoff
procedure at issue, it did not create employment expectations
violated by that procedure.
[Dkt. #102, at 3-4]. Judge Wood went on, however, to allow
that if the “layoffs” were actually
“discharges, ” matters were different.
the reasons driving a layoff are economic, she explained -
say, decreased school enrollment - the Board can consider
employee performance in determining who goes first. But if
the Board is targeting a teacher solely for performance
issues, the teacher has a protected interest and is entitled
to due process. [Dkt. # 102, at 4-5, quoting Ferkel v.
Bd. of Educ. of City of Chi., 45 F.Supp.3d 824, 835
(N.D.Ill. 2014)]. Judge Wood determined that the
p1aintiffs' allegations supported an inference that the
“layoffs” in this case were actually pretexts for
terminations based on performance. [Dkt. #102, at 6].
Although she found the plaintiffs “did not state a
claim for relief with the bare allegation that the Board used
performance ratings to determine their eligibility for
layoff, they do state a sufficient claim to ...