United States District Court, N.D. Illinois, Eastern Division
PHYSICIANS HEALTHSOURCE, INC., an Ohio corporation, individually and on behalf of similarly situated persons, Plaintiffs,
A-S MEDICATION SOLUTIONS, LLC, JAMES BARTA, WALTER HOFF and JOHN DOES 1-10, Defendants.
MEMORANDUM OPINION & ORDER
B. Gottschall United States District Judge.
class action, the plaintiff, Physicians Healthsource, Inc.
(“PHI”), claims that the defendants, primarily
A-S Medication Solutions, LLC (“A-S”),
violated the Telephone Consumer Protection Act of 1991
(“TCPA”), as amended, 47 U.S.C. 227 et.
seq., by sending an advertisement to 11, 422 fax numbers
in 2008. After nearly three years of discovery, the court
certified this case as a class action in September 2016.
Plaintiff sent notice to the class, and PHI then filed a
motion for summary judgment.
briefing on that motion has stalled due to a dispute over the
declarations of putative class members; the declaration of Ya
n i v Schiff (“Schiff”), a designated expert,
dated February 20, 2017; and an accompanying spreadsheet
attached to A-S's Local Rule 56.1(b)(3) statement of
additional facts (“A-S SOF”), ECF No. 227,
(collectively “the disputed evidence”). PHI
contends that A-S violated Federal Rule of Civil Procedure
26(a)(1) and (2) by failing to make disclosures about the
disputed evidence before discovery closed in December 2015
(the date on which discovery closed is disputed, but the
court does not resolve that dispute today). PHI moves under
Rule 37(c)(1) to strike the disputed evidence and the
portions of A-S's summary judgment response that refer to
the disputed evidence. As explained below, any nondisclosure
was harmless under Rule 37(c)(1) because PHI was complicit in
bringing about the only prejudice it claims to have suffered.
Accordingly, the court denies PHI's motion to strike.
two initial rounds of motion practice on the sufficiency of
the complaint, PHI filed its amended complaint, ECF No. 38,
and first motion for class certification, ECF No. 39, on
April 2, 2013. Discovery began, and the court referred the
case to the assigned magistrate judge for discovery
supervision on September 4, 2013. ECF No. 51. The court
entered an order on November 26, 2013, denying the first
motion for class certification without prejudice. ECF No. 57.
The order stated that “[a]s Rule 23 discovery is
ongoing in this case, Plaintiff's Motion to certify class
is denied without prejudice, in the interest of judicial
economy.” Id. (citation omitted).
continued. See, e.g., Status Report & Proposed
Schedule, Mar. 14, 2014, ECF No. 62; Am. Protective Order,
May 14, 2014, ECF No. 75. A-S's third motion to compel
culminated in the entry of an order by the magistrate judge
on September 18, 2014. That order provided:
The discovery schedule is amended pursuant to the
parties' joint stipulation. All Rule 23 fact discovery to
be completed by 2/2/2015. Plaintiff to provide disclosures
and reports from Plaintiff's Rule 23 opinion witness(es)
on or before 3/2/2015. Defendants to depose Plaintiff's
Rule 23 opinion witness(es) and provide Defendants' Rule
23 opinion witness(es) disclosures and reports on or before
3/30/2015. Plaintiff to depose Defendants' Rule 23
opinion witness(es) on or before 4/30/2015. Plaintiff's
Rule 23 rebuttal witness(es) to be disclosed and opinion
report(s) served on or before 5/14/2015. Defendants to depose
Plaintiff's Rule 23 rebuttal witness(es) by 5/28/2015.
ECF No. 90. After this point, explicit references to Rule 23
discovery drop from the docket. Later docket entries use
unqualified language to set discovery deadlines, as though
the deadlines set controlled discovery on all issues rather
than just class issues. See, e.g., ECF No. 103
(“All expert discovery to be completed by
subsequent discovery deadlines nonetheless trace their
lineage to the September 18, 2014, minute en t r
The path of explicit deadlines runs from September 18, 2014,
ECF No. 90, to October 9, 2015. On October 9, 2015, the parties
reported only one outstanding fact-discovery issue, a Rule
30(b)(6) deposition. Minute Entry, Oct. 9, 2015, ECF No. 138.
That issue provoked some further litigation. See
Minute Entry, Nov. 9, 2015, ECF No. 143 (deciding third
party's motion for relief from discovery order). The
magistrate judge held a status conference on December 10,
2015. The minute entry for that conference reads: “The
parties report that discovery has been completed.” ECF
court then set a status conference, ECF No. 146, and PHI
moved for class certification, ECF No. 147. A-S first filed
the declarations of putative class members that are the
subject of the instant motion to strike with its response to
the motion to certify on May 13, 2016. ECF No. 254 at 5;
compare ECF Nos. 171-5, 171-6, 171-15, 171-16, and
171-17 with ECF Nos. 227-7, 227-8, 227-9, 227-10,
and 227-11. The court granted the motion for class
certification on September 27, 2016. Physicians
Healthsource, Inc. v. A-S Medication Solutions, LLC, 318
F.R.D. 712, 725 (N.D. Ill. 2016). After sending notice to the
class members, the parties announced at a status conference
held December 9, 2016, in response to the court's
inquiry, that they did not need to take further discovery.
Consistent with its representations at that hearing, PHI then
filed a motion for summary judgment, and A-S filed a response
to that motion. A-S cites the declarations of class members
generally to show that “[c]lass members also
specifically gave A-S Medication permission to send them fax
advertisements because they wanted to stay apprised of A-S
Medication's products.” A-S SOF ¶ 19, ECF No.
227. Also, Schiff's declaration dated February 20, 2017,
ECF No. 227-14 Ex. N, and a spreadsheet he prepared, ECF No.
227-15, Ex. O, number among the exhibits supporting A-S's
Local Rule 56.1(b)(3) statement of additional facts.
See A-S SOF ¶¶ 22-23, ECF No. 227. A-S
relies on Schiff's analysis of publicly available
government data, described in his declaration, and the
spreadsheet for the proposition that “[t]here are on
average more than five other provider organizations or
persons associated with each of the 11, 422 unique numbers
identified in the fax log at issue here.” Id.
RULE 26(a) DISCLOSURES
cases, including this one, Federal Rule of Civil Procedure
26(a)(1) requires parties to make certain initial disclosures
“without awaiting a discovery request.”
Fed.R.Civ.P. 26(a)(1) (allowing court to order otherwise);
but see Id. R. 26(a)(1)(B) (exempting certain types
of cases). Under Rule 26(e), a party must supplement its
disclosures “in a timely manner if the party learns
that in some material respect the disclosure or response is
incomplete or incorrect, and if the additional or corrective
information has not otherwise been made known to the other
parties during the discovery process.” Id. R.
37(c)(1) supplies a remedy for initial-disclosure and
supplementation violations. It provides, in part, that
“[i]f a party fails to provide information or identify
a witness as required by Rule 26(a) or (e), the party is not
allowed to use that information or witness to supply evidence
on a motion, at a hearing, or at a trial, unless the failure
was substantially justified or is harmless.”
Fed.R.Civ.P. 37(c)(1). The Seventh Circuit has held that
“[t]he exclusion of non-disclosed evidence is
‘mandatory under Rule 37(c)(1) unless non-disclosure
was justified or harmless.'” Rossi v. City of
Chicago, 790 F.3d 729, 737-38 (7th Cir. 2015) (quoting
Musser v. Gentiva Health Servs., 356 F.3d 751, 758
(7th Cir. 2004)); accord Cripe v. Henkel Corp., 858
F.3d 1110, 1112 (7th Cir. 2017) (citing Hassebrock v.
Bernhoft, 815 F.3d 334, 341 (7th Cir. 2016) and
Novak v. Bd. of Trs. of S. Ill. Univ., 777 F.3d 966,
972 (7th Cir. 2015)). Rule 37(c)(1) allows the court to
impose lesser sanctions “[i]n addition to or instead of
this sanction.” See Malik v. Falcon Holdings,
LLC, 675 F.3d 646, 649-50 (7th Cir. 2012) (citing
Ball v. City of Chicago, 2 F.3d 752 (7th Cir. 1993))
(“[Rule 37] gives the judge discretion to match a
remedy to the wrong.”); Dynegy Mktg. & Trade v.
Multiut Corp., 648 F.3d 506, 514 (7th Cir. 2011)
(“Whether a failure to comply with Rule 26(a) or (e) is
substantially justified, harmless, or warrants sanctions is
left to the broad discretion of the district court.”
(citing David v. Caterpillar, Inc., 324 F.3d 851,
857 (7th Cir. 2003))).