United States District Court, N.D. Illinois, Eastern Division
PHYSICIANS HEALTHSOURCE, INC., an Ohio corporation, individually and as the representative of a class of similarly-situated persons, Plaintiffs,
ALLSCRIPTS HEALTH SOLUTIONS, INC. and ALLSCRIPTS HEALTHCARE LLC, Defendants.
MEMORANDUM OPINION AND ORDER
Jeffrey Cole, Magistrate Judge.
the court is the defendants' request for sanctions. The
request was filed on June 29, 2015, tacked onto the end of a
motion to compel. The initial request, although nearly 200
pages in length between the brief and the exhibits, was
nevertheless unsupported by any citations to pertinent
authority and didn't even indicate what sanctions were
being sought. Thus, under Seventh Circuit precedent, it
should have been denied. See, e.g., United States v.
Parkhurst, 865 F.3d 509 (7th Cir. 2017); United
States v. Beavers, 756 F.3d 1044, 1059 (7th Cir. 2014);
United States v. Berkowitz, 927 F.2d 1376, 1384 (7th
Cir. 1991). But, instead, the defendants were allowed to file
an appropriately supported supplement, which they did on July
10, 2015. Unfortunately, as it was filed as a supplement and
not a motion, the document was not logged into the system as
a pending motion and fell between the cracks of this case.
Although the plaintiff's case involves perhaps three
dozen faxes, the parties have now amassed nearly 8, 000 pages
of docketing, nearly 7, 000 of those coming since the motion
was filed. Still, the ultimate responsibility for any delay
in deciding the present motion is ultimately mine. After
review of the filing and the plaintiff's response, it
must be said that an award of sanctions is inappropriate.
Set of Interrogatories, No. 17:
interrogatory asked for “all television, radio and
printed publications and any internet sites or worldwide web
pages . . . in which or on which your telephone number or
numbers used by you for the receipt of facsimile
transmissions have been disclosed, published or otherwise
made available, including, but not limited to, directories
and advertisements.” [Dkt. # 142, at 3]. Plaintiff made
a few, often used, conclusory objections, and ultimately
answered, “none.” [Dkt. # 164, at 15]. Defendants
claim this answer was inaccurate based on classified ads from
December 26, 2014; and internet ads from January and May of
2015. [Dkt. #142, at 3; #142-6, 7, 8].
when quoting the interrogatory in their motion to compel and
for sanctions, defendants omit the important qualifier,
“during the Time Period.” [Dkt. #142-5].
Moreover, whether in their original motion or in the
supplement they were allowed to file, defendants never
indicated or cited to a copy of their interrogatories that
defined “the Time Period.” But selective
quotations from the record are impermissible, Walters v.
National Association of Radiation Survivors, 473 U.S.
305, 322 (1985); Correa v. Hospital San Francisco,
69 F.3d 1184, 1192, 1197 (1st Cir. 1995), and
judges are not required to “play archaeologist with the
record.” DeSilva v. DiLeonardi, 181 F.3d 865,
867 (7th Cir.1999). They “‘are not like pigs,
hunting for truffles buried in [the record], '”
Gross v. Town of Cicero, Ill., 619 F.3d 697, 702-03
(7th Cir.2010), and they are not required to scour a record
to ascertain where or whether there are portions supporting a
party's ultimate conclusion. See, e.g., State
Contracting & Engineering Corp. v. Condotte America,
Inc., 197 Fed.Appx. 915, 919 (Fed.Cir.2006). That is an
advocate's job, and if a judge is forced to undertake
that role, the adversary system is adversely affected.
See Burdett v. Miller, 957 F.2d 1375, 1380 (7th
Cir.1992); Alioto v. Town Of Lisbon, 651 F.3d 715,
721 (7th Cir.2011).
were forced to find what the defined “Time
Period” was does not change this basic principle.
Consequently, it cannot be determined based on
defendants' motion, supplement, and accompanying
exhibits, whether the plaintiff's response was
inaccurate. The defendants certainly did not fulfill the
obligation articulated in Dal Pozzo v. Basic Machinery
Co., Inc., 463 F.3d 609, 613 (7th
Cir. 2006)(“An advocate's job is to make it
easy for the court to rule in his client's favor
. . . .”). In any event, the defined “Time
Period” had closed three years prior to the ads; but
that was only learned as a result of plaintiff's
submissions in response to the defendants' motion and
supplement. [Dkt. #164-12, ¶5].
Set of Interrogatories, No. 22:
defendants complain that plaintiff failed to respond
accurately to their request for “any other person,
business, corporation, company or unincorporated business
entity that you know also used the number (513) 922-2009 to
send or receive facsimile transmissions during the Time
Period.” [Dkt. 142, at 4]. The plaintiffs objected and,
again, answered, “none.” [Dkt. #142, at 4].
Defendants submit that, according to web ads printed in
January 2015 and a form from September 2012, a Dr. Martinez
was allowed to use the fax number. [Dkt. # 142, at 4;
#142-10, 11]. Again, the defendants do not share with the
court what the “Time Period” was and, as such,
their motion cannot be granted based on their submissions. As
we know from the plaintiff, however, the Time Period was
April 27, 2008 to May 1, 2012 [Dkt. #164-12, ¶5], so the
ad and form are from outside the Time Period. Moreover,
plaintiffs amended their response to reflect that other
individuals used the number over a month before defendants
filed their motion to compel. Thus, although plaintiff's
attention to discovery was sloppy, Rule 37's sanctions
provision does not apply. See Fed. R. Civ.P.
Set of Interrogatories, No. 27:
asked plaintiff to “[i]dentify any efforts you made to
unsubscribe to any facsimiles received during the last five
years.” [Dkt. # 142, at 4]. Plaintiff's response
was: “see list of TCPA cases filed by Plaintiff.”
[Dkt. #164-13, ¶27]. While the first two points of the
defendants' motion for sanctions are inadequately
developed, this response, it must be said, is accurate. As
plaintiff said in its response to the motion to compel,
“the filing of lawsuits is the method by which
Plaintiff sought to unsubscribe, i.e., stop fax
advertising.” [Dkt. #164, at 19]. The defendants were
absolutely under no misapprehension in light of the
deposition testimony at which the deponent said that the way
in which faxes like those involved in the present case were
dealt with is by a lawsuit. For the defendants to suggest
that they were under some misapprehension regarding the
meaning of the response to their interrogatory, is, to say
the very least, unconvincing.
ago as 1985, it was estimated that each hour a court spent on
a case cost the taxpayers $600. See Levin and
Colliers, Containing the Cost of Litigation, 37
Rutgers L.Rev. 219, 226-27 (1985) (each hour spent on case by
federal judge costs government $600). Of course, the formula
for determining costs to the court varies. But a cost there
certainly is. Not only to the court but to the public, which
has a vital interest in all litigation. That the
plaintiff's and counsel's chosen response to an
unwanted fax was to sue rather than attempt to nip the faxes
in the bud by utilizing an opt out provision - assuming that
a valid one existed - seems questionable when one considers
the value of litigation to the recipient of the fax and the
cost incurred by the public. But the statute is what it is.
Creative Montessori Learning Ctrs. v. Ashford Gear
LLC, 662 F.3d 913, 915 (7th Cir. 2011)(Posner, J.). Be
that as it may, the plaintiff's answer to the
interrogatory, did not cause the defendants
the defendants requested that plaintiff produce “all
fax logs . . . including but not limited to fax logs for the
numbers (513) 922-2009 and/or (513) 347-2735.” [Dkt.
#142, at 4 -5]. Plaintiff's response was that it had
“been unable to locate any responsive documents.”
Defendants argue that this response was knowingly false,
because plaintiff had already produced fax logs in
Physicians Healthsource, Inc. v. Alma Lasers, Inc.,
Case No. 1:12-cv-04978 (N.D. Ill.) (Kocoras, J.). Plaintiff
offers a convoluted explanation for its response, along the
lines of defendants' contention being “premised on
a misunderstanding faxing” [sic] and a confusion
between fax logs and fax journals and that expert testimony
will make this clear. [Dkt. #164, at 19-20].
may or may not be the case, but a mini-trial with what would
surely be competing experts from both sides, see Olympia
Equipment Leasing Co. v. Western Union Telegraph Co.,
797 F.2d 370, 382 (7th Cir.1986), need not and will not be
conducted on the present discovery squabble. And it ought not
be. Given the resources the parties have already used and
made use of in this matter, delving further into this
squabble as it is presently pitched would not be productive.
The suspicion is, however, that if plaintiff has produced the
fax logs in another case, this may be another example of the
disturbing approach to discovery, a problem that has been
addressed at length ...