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LLC v. American Physicians Assurance Corporation, Inc.

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

June 26, 2017


          Coleman Judge


          Cole Magistrate Judge


         This is another of those seemingly intractable disputes that underlies the oft-heard lament that “protracted discovery, [is] the bane of modern litigation.” Rossetto v. Pabst Brewing Co., Inc., 217 F.3d 539, 542 (7th Cir.2000). We begin, as we must with the facts. See Upjohn Company v. United States, 449 U.S. 383, 390 (1981).

         On September 13, 2016, Judge Coleman granted defendants' motion to extend the discovery cutoff to December 7, 2016. The Order provided: "this extension is final." [Dkt. 59]. On December 7, 2016, I entered a lengthy Order that noted “fact discovery is closed pursuant to Judge Coleman's order except that” - and there followed a list of things the parties were allowed to complete in discovery. Among other things, I granted the plaintiff's motion for instructions regarding the unsealing of the file in a case previously decided in New Mexico. The Order permitted the plaintiff to appear before the New Mexico judge who had ordered the file sealed and ask for permission to obtain “the Kenny memorandum” - as the plaintiff had requested. [Dkt. 88]. Neither the plaintiff nor the defendants sought review by Judge Coleman of this Order. They thus waived any objection they might have had to the Order either in the district court or in the Seventh Circuit in the event of an appeal, following the entry of final judgment after a trial. See United States v. Taylor, 581 Fed.App'x 559, 560 (7th Cir. 2014); Schur v. L.A. Weight Loss Centers, Inc., 577 F.3d 752, 760 (7th Cir.2009); Egan v. Freedom Bank, 659 F.3d 639, 644 (7th Cir.2011); DirecTV, Inc. v. Barczewski, 604 F.3d 1004, 1011 (7th Cir.2010); Richard Wolf Med. Instruments Corp. v. Dory, 131 F.R.D. 545, 546 (N.D. Ill. 1990).

         On February 23, 2017, the defendants moved before Judge Coleman “To Extend Time to Disclose Defendants' Rule 26(a)(2) Witnesses.” The motion, which was expressly devoted to demonstrating good cause for extending time to disclose experts, argued that the extension was needed to examine the scope and nature of the plaintiff's possible experts, who, it was alleged, were only recently disclosed and who the defendants had not had an opportunity to depose. It was further claimed that without extending the time for disclosure of “responsive experts, ” sufficient time for the experts to consider the information obtained at deposition would not exist, and the ultimately disclosed experts would have insufficient time to draft their reports. The defendants pointed out that Judge Coleman “has not established a rebuttal disclosure deadline nor expert discovery deadline, nor has a trial date been set.” The motion concluded with the request “that the Court extend its expert disclosure deadline by 45 days, to and including April 27, 2017.” [Dkt. 102](Emphasis supplied). The motion did not, however, suggest a date for disclosure of expert reports or provide a schedule for the completion of expert depositions.

         That the motion was only being granted in part obviously took into account the fact that the April 27, 2017 date - specified in and sought by the defendants' Motion to Extend - exceeded “45 days, ”[1] which the motion also sought. The April 12th date for the disclosure of experts sought by the defendants did not allow any time for those experts to be deposed. And so the next sentence of the Order said: "All discovery ordered closed by July 11, 2017." Did this mean only that disclosure of experts and their depositions had to have been completed by July 11, 2017, or that Judge Coleman, sub silentio, and without any request by the movants or the plaintiff, was also extending fact discovery to the same July date? Ignoring Justice Holmes' wise admonition that “[w]e must think things, not words, or at least we must constantly translate our words into facts for which they stand, if we are to keep to the real and the true, ” Holmes, Law and Science and Science and Law, 12 Harv.L.Rev. 443, 460 (1889), the plaintiff opts for the latter interpretation. Yet, that would make July 11, 2017 the date on which fact and expert discovery would end simultaneously. And that would make no sense.

         A single sentence, whether in a judicial Opinion or Order, is not to be removed from its informing context and read with pedantic literalism, as the plaintiff has done. We are not at liberty to - nor should we - ignore the setting in which Judge Coleman was asked to and did issue her ruling. After all, meaning is determined by context. Hawks v. Hammill, 288 U.S. 52, 57 (1933)(Cardozo, J, ); United States v. Sewell, 780 F.3d 839, 845 (7th Cir. 2015); Commodity Futures Trading Comm'n v. Worth Bullion Grp., Inc., 717 F.3d 545, 550 (7th Cir. 2013). Or as Judge Posner has phrased it, “‘[a]ll interpretation is contextual, and the body of knowledge that goes by the name of ‘common sense' is part of the context of interpreting most documents....'” Vendetti v. Compass Environmental, Inc., 559 F.3d 731, 733 (7th Cir. 2009). It “is a disservice to judges and a misunderstanding of the judicial process to wrench general language in an opinion out of context.” Aurora Loan Services, Inc. v. Craddieth, 442 F.3d 1018, 1026 (7th Cir.2006). Accord East St. Louis Laborers' Local 100 v. Bellon Wrecking & Salvage Co., 414 F.3d 700, 705 (7th Cir.2005); Colon v. Option One Mortgage Corp., 319 F.3d 912, 920 (7th Cir.2003). See also Cohens v. Virginia, 19 U.S. 264, 399 (1821)(Marshall, C.J.); Illinois v. Lidster, 540 U.S. 419, 424 (2004); Cruz v. Town of Cicero, Ill., 275 F.3d 579, *587 (7th Cir. 2001). The same is no less true of judicial orders.

         Under the plaintiff's construction of Judge Coleman's order, fact and expert discovery would be coterminous, in which event, the experts would not have the material and facts necessary for their final analyses and opinions. And, if additional, supplemental or rebuttal opinions were needed, then “all discovery” could not close on July 11th, as Judge Coleman's order prescribed. Litigants should not have to guess at who will offer expert opinions. Cripe v. Henkel Corp., U.S., 2017 WL 2454390, at *1 (7th Cir. 2017). Nor should they have to guess at what the experts are going to say in support of their opinions or in derogation of the opinions of opposing experts. Yet, if expert and fact discovery were coterminous, the experts on both sides could not issue reports which fully took into account fact discovery. The effect on the experts and the parties would be obvious.

         The discovery rules were designed to avoid what Wigmore aptly called trial by ambush and to eliminate the sporting theory of justice. The Rules regard secrecy and surprise as uncongenial to truth seeking and as destructive of the overarching goal that cases be justly determined on their merits. See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002). See generally Rule 1, Federal Rules of Civil Procedure. The construction of Judge Coleman's Order on which the plaintiff insists runs counter not only to long accepted canons of construction, but to the very purpose of the Federal Rules of Civil Procedure.


         Still, it is true that the plaintiff's lawyers were given limited permission by me on December 7, 2016 to appear before the District Court in New Mexico “regarding the Kenny memorandum....”[2][Dkt. 88]. Since the file had not been sealed by me, my Order explained that I could not take any action to unseal it, and said that the plaintiff would have to contact the District Judge who did. Whether that effort would qualify as discovery - which had a deadline imposed by Judge Coleman - or as investigation by a party which had none - was never discussed by the parties. A discovery deadline does not terminate a party's right to informally investigate the case. See Redus v. CSPH, Inc., 2017 WL 2079807 at *6 (N.D.Tex. 2017). Nor is one necessary to allow investigation. Pollock v. PNC Fin. Servs. Grp., Inc., 2014 WL 2212069, at *5 (S.D.N.Y.2014); In re Daou Sys., Inc., Sec. Litig., 2008 WL 2899726, at *2 (S.D. Cal. 2008). Whether what is learned through continued, informal investigation will be admissible at trial may present different issues than those that arise in formal discovery. However, one cannot escape the discovery rules and their consequences and restrictions by using court process and claiming what is sought is merely part of informal investigative efforts. McDermott v. Liberty Mar. Corp., 2011 WL 2650200, at *4 (E.D.N.Y. 2011).[3]

         Nonetheless, despite having appeared before me on December 7, 2016 - and despite being aware of the existence of the New Mexico proceedings from at least August 20, 2015 [Dkt. 139] - the Complaint was filed on May 15, 2015 [Dkt. 1] - plaintiff's counsel did not contact the sealing judge in New Mexico until May 30, 2017.[4] Yet, according to the defendants' lawyer, by then expert discovery had been completed - a matter not contradicted by plaintiff's lawyers although Judge Coleman had ordered expert discovery to be completed by July 11th - the course the plaintiff now seeks to embark on would in all probability result in an expansion and a reopening of fact and expert discovery, which I am not authorized to allow. It would be an abuse of discretion to ignore the plaintiff's demonstrable lack of diligence and to now allow that which could and should have been accomplished much earlier in the case. See e.g., Gallagher v. San Diego Unified Port Dist., 668 F.App'x 786, 787 (9th Cir. 2016); Rivera-Almodovar v. Instituto Socioeconomico Comunitario, Inc., 730 F.3d 23, 27 (1st Cir. 2013); Davis v. G.N. Mortg. Corp., 396 F.3d 869, 886 (7th Cir. 2005); Echemendia v. Gene B. Glick Mgmt. Corp., 263 F.App'x 479, 481 (7th Cir. 2008); Hammonton Inv. & Mortg. Co. v. Morco, Ltd., 452 F.2d 119, 122 (7th Cir. 1971).

         The plaintiff's lawyers sought to account for their lengthy period of inaction vis-a-vis New Mexico by saying first that discovery “was expensive, ” and then insisting they thought they had until July 11, 2017 to complete fact discovery. The first explanation is not a sufficient excuse, for all litigation of any significance is expensive as the plaintiff's lawyers knew when they filed the case. As for the second attempted justification for the plaintiff's inaction, I had no authority to change Judge Coleman's discovery schedule - a fact of which all the lawyers in the case had expressed their awareness. In short, the way in which the plaintiff has dealt with the matter of the New Mexico litigation is unacceptable. See, e.g., Bayer Healthcare Pharm., Inc. v. River's Edge Pharm., LLC, 2015 WL 11142428, at *2 ...

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