United States District Court, N.D. Illinois, Eastern Division
DEAN A. MONCO, an individual, et al., Plaintiffs,
ZOLTEK CORPORATION, a Missouri corporation, et al., Defendants.
MEMORANDUM OPINION AND ORDER
JEFFREY COLE MAGISTRATE JUDGE.
defendant has filed a motion to compel the expert deposition
of one of the plaintiffs, Dean Monco. Mr. Monco was deposed
as a fact witness in February of 2019. But on September 13,
2019, the final day for disclosing expert witnesses,
plaintiffs disclosed Mr. Monco as an expert witness. The
plaintiff’s expert witness disclosure states it is
“a supplement to the disclosure of testimony in
Monco’s deposition transcript” and lists a number
of topics on which Mr. Monco “may testify at trial
consistent with [his prior] deposition testimony and his
interrogatory answers.” [Dkt. #299-1, at 2-4].
Defendant tells us the parties met and conferred, but
plaintiffs opposed any expert deposition of Mr. Monco
because, it was argued, he had already been deposed –
albeit as a fact witness. That was a specious objection.
Questions an attorney might pose to a person as an expert
witness may well be different than those that might be posed
to the same person who initially testified as a fact witness.
As the Seventh Circuit has recognized, “[t]here is a
significant distinction between disclosing an individual as a
fact witness under Rule 26(a)(1)(A) and disclosing an expert
witness under Rule 26(a)(2).” Karum Holdings LLC v.
Lowe's Companies, Inc., 895 F.3d 944, 951 (7th Cir.
2018). See also Musser v. Gentiva Health Servs., 356
F.3d 751, 759 (7th Cir. 2004)(“It was the district
court's opinion that, in this particular case, Gentiva
was denied the opportunity to question the witnesses in their
expert capacity. This choice is not outside the range of
reasonable options available to the district court.”).
lengthy and unconditional Order setting the discovery
schedule in this case required that deposition of
plaintiff’s experts be completed by September 27, 2019.
[Dkt. # 285]. It also provided that there would be no further
extensions of the discovery schedule, that the court, not the
lawyers, were in charge of discovery, and that the discretion
to control discovery includes the authority to set schedules
for depositions. “The parties do not own the discovery
schedule.” [Dkt. #285]. Delay in filing motions can be
fatal. In re Sulfuric Acid Antitrust Litigation, 230
F.R.D. 527, 533 (N.D.Ill. 2005); In re Sulfuric Acid
Antitrust Litigation, 231 F.R.D. 331, 337 (N.D.Ill.
2005); In re Sulfuric Acid Antitrust Litigation, 231
F.R.D. 320, 325 (N.D.Ill. 2005). We live in a world of
deadlines, the practice of law is no exception. Raymond
v. Ameritech Corp., 442 F.3d 600 (7th Cir.2006). Indeed,
the Seventh Circuit has held that even a day’s delay
can be fatal. Brosted v. Unum Life Ins. Co. of Am.,
421 F.3d 459, 464 (7th Cir. 2005); Tuke v. United
States, 76 F.3d 155, 157 (7th Cir. 1996).
Monco was disclosed as an expert within the time allowed in
the schedule, on September 13. Under the schedule, defendants
knew they had only two weeks in which to complete the
depositions [Dkt. #285]. Defendants don’t say when they
first requested an expert deposition of Mr. Monco, but,
according to them, they knew plaintiff was opposing an expert
deposition of Mr. Monco as of September 20th.
[Dkt. #299, at 2 (“On September 20, 2019, attorneys for
Monco indicated that they oppose a deposition under Rule
30(a)(2)(A)(ii) stating that Mr. Monco’s February 2019
deposition prohibits a second deposition.”)]. Yet, they
waited five days to file their motion to compel, filing it at
4 p.m. on September 25th. That would have left
less than two days in which to schedule Mr. Monco’s
deposition, assuming the motion was heard and granted the
very next morning. But, under Local Rule 5.3 (a), it could
not have been heard until two days later at the earliest
– unless it was filed as an emergency motion. That
would have made scheduling the requested deposition virtually
impossible. And, it would have violated Local Rule
16.1(4)(“Discovery requested before the discovery
closing date, but not scheduled for completion before the
discovery closing date, does not comply with this
order.”), which the parties were reminded of by my
Order of in early August. [Dkt. #292. See also Dkt.
turned out to be worse than that, however, because the
defendants did not notice the motion for hearing until
October 1st [Dkt. # 300], the Monday after the
deadline for completing expert depositions passed. Just ten
days ago, the parties were forcefully reminded of the
discovery schedule at a status hearing and told they had to
comply with it. [Dkt. # 297. See also Dkt. #292].
And, on June 5, 2019, they were informed in a lengthy minute
order that all expert discovery had to be completed by
October 25, 2019 and that “[t]here shall be no further
extensions of the discovery schedule.” No. one reading
the page-and-a-quarter long Minute Order could have failed to
appreciate that the Order meant what it said. Extensions by
default, see Logan v. Berryhill, 2017 WL 1344521, at
*2 (N.D. Ill. 2017) – and that is ...