United States District Court, N.D. Illinois, Eastern Division
CHICAGO REGIONAL COUNCIL OF CARPENTERS PENSION FUND, et al., Plaintiffs,
CELTIC FLOOR COVERING, INC., Defendant.
MEMORANDUM OPINION AND ORDER
Magistrate Judge Jeffrey Cole
case is about the defendant's obligations to make
contributions to the various carpenters' union trust
funds for the carpenters hired to do work for the defendant.
After a bumpy start to this litigation - more on that in a
moment - the plaintiffs performed an audit that revealed what
they contend were the carpenters for whom the defendant was
delinquent in its contributions, and the amounts owed. And
so, the plaintiffs served the discovery requests at issue,
essentially covering the work done by 30 or so carpenters
during the period at issue; some carpenters appear to have
missing contributions for a month or two, others for 40 or 50
months. The defendant has filed a motion to quash the
plaintiffs' requests for admissions and production, and
form that discovery has taken - 345 requests to admit, each
with 3 subparts, and accompanying interrogatories and
document requests - is what prompted the defendant's
motion. See generally Robinson v. Stanley, 2009 WL
3233909, 2 (N.D.Ill. 2009). It seems, at first blush,
onerous, but how it came to where we are now is
understandable. Indeed, the owner of the defendant company
has been, to say the least, a recalcitrant participant in
these proceedings. He ignored this litigation completely for
the first five months. After that, he failed to appear for 9
of 11 scheduled hearings. He forced Judge Dow to enter a
default and a rule to show cause against him. He didn't
retain counsel to represent his company until May of 2017 -
well over a year after the deadline Judge Dow set. He
didn't even file an Answer until the case was nearly two
years old. Had he not been so uncooperative, perhaps
discovery could have proceeded in more than a trickle and in
an atmosphere of cooperation rather than the avalanche
defendant says he faces now. After all, parties in a case
have an obligation to participate fully and fairly in
discovery. See AT&T Corp. v. Park I-10 Motors,
2014 WL 12580445, at *1 (W.D. Tex. 2014); Chicago Police
Sergeants Ass'n v. City of Chicago, 2009 WL 3672094,
2 (N.D.Ill. 2009); Whitserve LLC v. Computer Patent
Annuities N. Am., LLC, 2006 WL 1273740, at *3 (D. Conn.
2006). The reality is that the current situation is one of
the defendant's own making.
counsel isn't to blame for any of this, of course, and
the motion he has filed is perhaps understandable. After all,
he did not come into the case until May 17, 2017. [Dkt. #42].
But, the long and short of it is, 30 or so carpenters are the
ones for whom contributions from the defendant are allegedly
delinquent. The defendant claims otherwise. And so this case
isn't any different than any other in which the parties
differ as to the plaintiffs' entitlement to be the
prevailing party. In any event, the defendant is now going to
have to produce discovery relevant to the claims and defenses
in the case. Swanson v. Citibank, N.A., 614 F.3d
400, 411-412 (7th Cir. 2010); Ossola v.
American Express Company, 2015 WL 5158712, at *7-8
(N.D.Ill., 2015). Records of the hours the carpenters worked
for the defendant and the hours the defendant reported to any
trust funds are undeniably relevant. Indeed, they are the
very heart and soul of the case.
tack that plaintiffs' counsel has taken to finally be
able to discover such information is perhaps understandable
given all the plaintiffs have had to endure thus far. And for
that the defendant apparently has no one but itself and its
owners to blame. Still, there may be a more efficient and
adroit manner for the plaintiffs now to obtain this
information. But perhaps there isn't.
at long last we finally have experienced labor lawyers on
both sides, the fact remains that this is a run-of-the-mill,
ERISA-Taft-Hartley Act contributions case. Surely counsel on
both sides can get together and come up with a discovery plan
that will take care of the records that clearly need to be
produced and will satisfy both sides. But discovery there
will be, and further delay and obstruction will not be
allowed. See Sambrano v. Mabus 663 F.3d 879, 881-882
(7th Cir. 2011)(“Sanctions such as orders to
pay the other side's attorneys' fees may redress
injuries done to put-upon adversaries....); Rickels v.
City of South Bend, Indiana, 33 F.3d 785, 786-87 (7th
Cir.1994)(“‘The great operative principle of Rule
37(a)(4) is that the loser pays.' Charles Alan Wright
& Arthur R. Miller, 8 Federal Practice and
Procedure § 2288 at 787 (1970). Fee shifting when
the judge must rule on discovery disputes encourages their
voluntary resolution and curtails the ability of litigants to
use legal processes to heap detriments on adversaries (or
third parties) without regard to the merits of the
claims.” (Parenthesis in original).
course, counsel for defendant, in purported compliance with
Local Rule 37.2, has certified that the attorneys have
already met and conferred on this dispute. But the cursory
description of that discussion - “[defendant's
counsel] requested one of Plaintiff's [sic] attorneys . .
. in writing and on the telephone to withdraw the Requests
For Admission, Interrogatories and Requests For Production of
Documents but Plaintiffs refused to do so” [Dkt. # 54,
¶2] - strongly suggests if it does not demonstrate that
no “good faith attempt to resolve differences”
was made - at least not the kind the Local Rule envisions and
phrase, “good faith, ”common throughout the law,
is not a talisman, empty and meaningless. Cf. Cent.
Illinois Light Co. v. Consolidation Coal Co., 349 F.3d
488, 492 (7th Cir. 2003). An ultimatum on one side, met with
steadfast defiance on the other, is not a good faith
discussion. See, generally, Infowhyse GmbH v.
Fleetwood Grp., 2016 WL 4063168, at *1-2 (N.D. Ill.
2016). As already suggested, it is a certainty that the two
sides, can do better. It behooves them to do so, as the
resolution of discovery disputes is committed to the
court's extremely broad discretion. Kuttner v.
Zaruba, 819 F.3d 970, 974 (7th Cir. 2016). An abuse of
discretion occurs when no reasonable person could take the
view of the district court.' U.S. v. Re, 401
F.3d 828, 832 (7th Cir.2005).
means there are no hard and fast rules. Indeed, two
decision-makers - on virtually identical facts - can arrive
at opposite conclusions, both of which constitute appropriate
exercises of discretion. See McCleskey v. Kemp, 753
F.2d 877, 891 (5th Cir. 1985), aff'd,
McCleskey v. Kemp, 481 U.S. 279, 289-290 (1987).
Accord Mejia v. Cook County, Ill., 650 F.3d 631, 635
(7th Cir. 2011). Cf. United States v. Bullion, 466
F.3d 574, 577 (7th Cir.2006)(Posner, J.) (“The striking
of a balance of uncertainties can rarely be deemed
unreasonable....”); Elliot v. Mission Trust
Services, LLC, 2015 WL 1567901, 4 (N.D.Ill. 2015). As a
result, a party that obdurately maintains its position
without budging could insist that it was “right,
” but find itself on the losing side, and properly so,
when the matter comes before the court, and the court's
vast discretion in overseeing discovery leads it to accept
the other side's “right” position. A
negotiated outcome is more likely to give both sides a
mutually satisfactory resolution.
the defendant's motion [Dkt. # 54] is denied without
prejudice to its refiling in the hopefully unlikely event
that the parties are unable, after truly good faith
negotiations, to compromise on a solution to this discovery
quarrel. The parties should note, however, that the ...