United States District Court, N.D. Illinois, Eastern Division
THE SURGERY CENTER at 900 NORTH MICHIGAN AVENUE, LLC, Plaintiff,
AMERICAN PHYSICIANS ASSURANCE CORPORATION, INC., AMERICAN PHYSICIANS CAPITAL, INC. Defendants.
MEMORANDUM OPINION AND ORDER
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,
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.
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.
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, ” 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.
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
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.
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.
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....”[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.
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. 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
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 ...