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Taylor v. Cook County Sheriff's Office

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

September 16, 2019

PERCY R. TAYLOR, Plaintiff,
v.
COOK COUNTY SHERIFF'S OFFICE, et al, Defendants.

          MEMORANDUM ORDER

          Jeffrey T. Gilbert Magistrate Judge

         This Memorandum Order memorializes the Court's rulings on multiple discovery motions pending in this case as follows:

(1) Defendants' Joint Motion to Bar Untimely Produced and/or Disclosed Documents [ECF No. 335] is granted in part, denied in part, and denied in part without prejudice;
(2) Plaintiffs Motion for Reconsideration of Court's October 24, 2017 Ruling and for Order Requiring Sheriff Dart to Sit for Deposition [ECF No. 344] is denied;
(3) Plaintiffs Motion for Protective Order to Prohibit Defendants and their Counsel from Threatening Witnesses [ECF No. 361] is denied;
(4) Plaintiffs Motion to Compel Production in Native Format [ECF No. 366] is denied;
(5) Plaintiffs Motion for Sanctions and an Adverse Inference That the Sheriffs Office Had No. Basis Not to Return Plaintiff to the Payroll or in the Alternative to Compel Defendant Cook County Sheriffs Office to Re-Designate a Representative Deponent to Testify on Topic 22 of Plaintiff s Amended Rule 30(b)(6) Notice [ECF No. 377] is denied;
(6) Plaintiffs Motion for Sanctions for Canceling Deposition of George Avet ECF No. [384] is granted in part and denied in part;
(7) Plaintiffs Motion to Strike Defendants' Joint Reply [DOC. 383] in Support of'Their Motion to Exclude John Maher's Affidavit from Evidence" [ECF No. 386] is denied; and
(8) Movant George Avet's Motion for Sanctions and Protective Order [ECF No. 391] is granted in part and denied in part.

         See Statement below for further details.

         STATEMENT

         (1) Defendants' Joint Motion to Bar Untimely Produced and/or Disclosed Documents [ECF No. 335]

         After nearly five years of litigation, discovery in this case closed on October 30, 2018. See October 30, 2018 Order, [ECF No. 297], After the close of discovery, Plaintiff produced almost 2, 000 pages of documents and/or records that previously had not been produced in discovery, including photographs of Plaintiffs residence and the surrounding area, documents related to Plaintiffs bankruptcy case, Plaintiffs prior EEOC and SRO complaints, various OPR files of former and current Sheriffs Office employees, Merit Board documents, and a complaint filed in unrelated case, Barber v. Sheriff's Office, et al, 13-CV-7662.[1] Plaintiff produced the photographs on November 13, 2018, the bankruptcy documents and OPR files on December 5, 2018, the prior complaints on December 17, 2018, and the Merit Board documents as well as the Barber complaint on January 22, 2019.

         Defendants seeks to bar Plaintiff from using the untimely produced documents and records for any purpose in this case as a discovery sanction pursuant to Federal Rule of Civil Procedure 37(c)(1). Plaintiff opposes the Motion and argues it is premature. Plaintiff contends that Defendants should raise these issues as motions in limine before the District Judge. The Court disagrees. On referral from the District Judge for discovery and discovery motions, Plaintiffs request to bar as a discovery sanction properly is before this Magistrate Judge pursuant to Federal Rule of Civil Procedure 37(c)(1). For the reasons discussed below, the Court holds that some of the late produced documents should be excluded as a discovery sanction, and others should not be excluded. Any ruling on the ultimate admissibility of these documents will be at the discretion of the District Judge.

         It is not disputed that all of these records were produced weeks to months after the close of discovery. Federal Rule of Civil Procedure 37(c)(1) provides that, "[i]f a party fails to provide information ... as required by Rule 26(a) or (e)... the party is not allowed to use that information ... 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). Thus, this Court must determine whether Plaintiffs late production of the documents that are the subject of Defendants' Motion is substantially justified or harmless. Salgado v. Gen. Motors Corp., 150 F.3d 735, 742 (7th Cir. 1998).

         Plaintiff has the burden of proving substantial justification or harmlessness. Id. The Seventh Circuit applies a four-factor test to determine whether untimely produced material is substantially justified or harmless: (1) the prejudice or surprise to the party against whom the evidence is offered; (2) the ability of the party to cure the prejudice; (3) the likelihood of disruption to the trial; and (4) the bad faith or willfulness involved in not disclosing the evidence at an earlier date. David v. Caterpillar, Inc., 324 F.3d 851, 857 (7th Cir. 2003) (citing Bronk v. Ineichen, 54 F.3d 425, 428 (7th Cir. 1995)); see also Spray-Rite Serv. Corp. v. Monsanto Co., 684 F.2d 1226, 1245 (7th Cir. 1982).

         As a threshold matter, the late production of these documents will not cause any disruption to the trial in this case as no trial date has even been set yet. The Court will address each category of documents in turn with reference to the other factors.

         (a) Photographs of Plaintiff s residence and the surrounding area: The Motion is denied without prejudice as to the photographs.

         These photographs were not taken at the time of the incident involved in this case. Rather, these photographs were taken of Plaintiff s residence and the surrounding area after the close of discovery and were produced to Defendants almost immediately after they were taken. The Court is not persuaded by Defendants' arguments of surprise, prejudice, or harm at this time. The Court also will not speculate as to if, how, or why Plaintiff intends to use these photographs at trial and what Defendants' objections may be at that time. That is not a decision for this Magistrate Judge. Therefore, Defendants' Motion is denied without prejudice as to the photographs. Any issue regarding the admissibility of the photographs should be raised before the District Judge.

         (b) Plaintiffs bankruptcy documents: The Motion is denied as to Plaintiffs bankruptcy documents.

         Plaintiff filed for bankruptcy on October 19, 2018, less than two weeks before the close of discovery. Plaintiffs counsel represents that he did not learn of Plaintiffs bankruptcy until after the close of discovery. The documents at issue were disclosed just over a month after the close of discovery. The Court is not persuaded by Defendants' arguments of surprise, prejudice, or harm and will not exclude these documents as a sanction based on their late disclosure. Therefore, Defendants' Motion is denied as to Plaintiffs bankruptcy documents. Again, the Court does not know how or whether Plaintiff intends to use these documents at trial. Any dispute regarding the admissibility of the documents at trial, however, should be raised before the District Judge.

         (c) Plaintiffs prior EEQC, SRO, or similar complaints: The Motion is granted as to these 10 pages of documents, which include a Charge of Discrimination filed with the Illinois Department of Human Rights and EEOC on October 7, 2007, a letter from the Shakman Compliance Administrator about Plaintiffs hearing date, Plaintiffs Supplemental Relief Order ("SRO") Claim Form relating to Plaintiffs Shakman complaint which is dated February 25, 2009, and an undated letter sent by Plaintiff regarding a September 22. 2009 meeting.

         During his second deposition on October 25, 2018, Plaintiff testified for the first time, after nearly five years of litigation, that he made one Shakman complaint of discrimination against the Sheriffs Office prior to the March 8, 2011 underlying incident in this lawsuit. Plaintiff, however, was unable to provide any specific information, including whether the complaint was based on racial or political discrimination. After the deposition, Defendants' counsel requested the production of documents relating to any complaints of discrimination against the Sheriffs Office prior to March 8, 2011 about which Plaintiff testified at his deposition. Plaintiff produced the information after Defendants' requested it. Plaintiff now argues that "[i]t is disingenuous for counsel to demand the production of documents and then move to bar the same documents produced within a week of their demand." To a certain extent, the Court agrees with Plaintiff. Plaintiff, however, completely ignores or purposefully side steps Defendants' primary argument that Plaintiff has not provided any explanation, let alone substantial justification or good cause, for the untimely production of these documents.

         Defendants specifically asked for these types of documents in Request No. 58 of their First Set of Document Requests: "[a]ny and all documents within Plaintiffs possession or control that concern or relate to any claim Plaintiff filed with the EEOC, the Secretary of Labor, any state or local discrimination agency, or any federal agency regarding any claim of harassment, discrimination, disparate treatment or retaliation whether they relate to any allegations in the complaint or not." See [ECF No. 335-8], at 7. Although Plaintiff objected to the request as irrelevant, he responded that he would produce any pertinent documents. Id. Therefore, it was reasonable for Defendants to assume that Plaintiff had produced all "pertinent documents."

         It is not disputed that these complaints have been in Plaintiffs possession for a long time, and he failed to produce them until after the close of discovery. The Court agrees that Plaintiff has not offered any reasonable explanation for their late production. The Court also is not persuaded by Plaintiffs argument that Defendants likely would have previously received copies of these documents. The fact that Defendants (or more likely some unidentified person in the Sheriffs Office) may have been in possession of the documents Defendants requested Plaintiff produce from his own files is not an excuse or good cause for Plaintiff not to produce the documents himself in response to Defendants' discovery requests. Nor has Plaintiff addressed ...


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