United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
Jeffrey Cole, Magistrate Judge
October 9, Plaintiff's counsel filed a motion to compel a
deposition, extend the discovery deadline, and for sanctions.
A week later, at 7:00 a.m. on October 15, the defendant's
counsel filed a “Response, ” fully aware that
this simple and straightforward matter was to be presented
this morning at 8:30 a.m. Invoking the Local Rules, counsel
for defendants said that she did not serve a courtesy copy
because under the rules she had 24 hours to do so - even
though it would have been simplicity itself for her to have
brought a copy with her and even though the motion was to be
heard this morning. Finally, the 5-page
“Response” was delivered late this afternoon at
4:00 p.m. It did not cite a single case. And it cited Rule 37
to support the argument with which no one disagrees that good
faith attempts should be at least attempted before court
action can be sought. [Dkt. #90 at 5]. The motion contains a
rather one-side explanation of what has occurred in this
case. To say that counsel for the defendants is an innocent
in all that has happened distorts the record. The courtesy
copy served on my courtroom deputy late this afternoon
contained Exhibits lettered A through G, but with no
protruding tabs, in violation of Local Rule 5.2.
defense counsel's insistence this morning on the letter
of the Local Rules (regarding the time for service of a
courtesy copy) in this regard seems odd since none of the
multiple exhibits were separated by protruding tabs as the
Local Rule requires. Unfortunately, the responses of the
defendant's counsel at the argument were as unpersuasive
as was the written presentation, and, in the end, were
unsupported by meaning authority and arguments. For the
reasons set forth below, the plaintiff's motion [Dkt. #
88] is granted.
September 18, 2019, one month before discovery was set to
close, the court ordered that the deposition of defendant
Correctional Officer Springer be deposed at Stateville
Correctional Center, as the defendants had insisted. It was
reset for September 25, 2019. [Dkt. # 87]. The prologue to
this was Byzantine, given the schedules of the correctional
officers, and the lawyers, and the defendants' insistence
that depositions occur only at the Stateville Correctional
Center. It should be pointed out that this case was filed in
July of 2017, over two years ago, and the scheduling of
depositions of defendants was only crystallized two years
later. There is perhaps no other walk of life where that
level of procrastination and resistance would be thought
unremarkable. In any event, finally, it was agreed that
Officer Springer's deposition would be held on the
25th at the correctional facility - the
location insisted on by the defendants and their counsel.
That insistence was improper and, as we shall see,
contravened the Federal Rules of Civil Procedure.
few hours after the lengthy discovery status hearing on
September 18th, at which defendants' counsel
agreed on the date for the deposition, defendants'
counsel emailed plaintiff's counsel to tell him that
Springer would be on vacation from September 25th
through October 15th, and therefore, could not be
deposed as agreed hours earlier. Presumably he would be
traveling, but defendants' counsel did not say so. [Dkt.
# 88-1]. She offered plaintiff's counsel September
23rd as an alternate date, but plaintiffs'
counsel had already indicated earlier in this tortured
scheduling process he was not available that day. And, so the
two attorneys went back and forth again via email.
Plaintiff's counsel asked for October 16, 17, or 18 -
again, the close of discovery was the October 18th
- but, for unknown reasons, those dates were not good for
defendants. [Dkt. # 88-1]. A week later, on September
25th, plaintiff's counsel suggested October
21st or 23rd - dates after the close of
discovery. Two more weeks went by, and plaintiff's
counsel emailed defendants' counsel to say he was
available for Springer's deposition on October
21st. Plaintiff's counsel confirmed. [Dkt. #
things first. There is absolutely no excuse for the
defendants to have gone through a status hearing, at the
taxpayers' expense, to schedule Springer's
deposition, only to violate the court Order setting that
deposition just hours later. They either participated in that
hearing in bad faith - which, not surprisingly, defense
counsel stubbornly denies - or scheduled the vacation
thereafter in bad faith, which is also denied. See Rice
v. City of Chicago, 333 F.3d 780, 785 (7th Cir.
2003)(collecting cases defining “fault” as
“objectively unreasonable behavior” and
“bad faith” as “reckless disregard of a
party's obligations to comply with a court
Springer is ordered - again - to appear for his deposition on
October 21st. And to appear not at Stateville but
at the location specified in the Notice of Deposition. If he
fails to do so, it will be recommended that a default
judgment be entered against him. See, e.g., Mojapelo v.
Nat'l R.R. Passenger Corp., 748 Fed.Appx. 68, 71
(7th Cir. 2019)(judgment against a party “may be
appropriate after a party makes more than just one discovery
error and gives no reasonable explanation . . . .”);
Pendell v. City of Peoria, 799 F.3d 916, 917 (7th
Cir. 2015)(court may impose harshest sanction after
parties' [willful refus[al] to comply with discovery
orders and the [party] has been warned that noncompliance may
lead to [default judgment].”). Moreover, the location
of that deposition shall be of the plaintiff's
choosing - not the defendants' - even though the
latter obdurately continue to insist that the deposition be
held at the correctional facility. That is not, however, what
the Federal Rules provide for.
Federal Rules of Civil Procedure provide that as long as the
deposition of a party occurs in the district where the case
is filed, it is the plaintiff's choice where it occurs.
8A Wright, Miller & Marcus, Federal Practice and
Procedure § 2112 (2010); Gonzalez v. Scaletta,
2018 WL 6573227, at *5 (N.D. Ill. 2018); DeGeer v.
Gillis, 2010 WL 3732132, at *1 (N.D. Ill. 2010).
addition, Plaintiff's counsel tells us that he is not
allowed to take his phone with him to the depositions at the
correctional facility, and at prior depositions, counsel
would (or could) not call my chambers, as I had
instructed counsel to do if conflict and issues arose.
[Dkt. ##70, 88, ¶. 8]. Seemingly free of immediate
judicial oversight, defendants' counsel not surprisingly
instructed her witnesses not to answer certain questions and
indicated she would file a brief. [Dkt. #88, ¶. 8; Dkt.
#90, ¶¶ 10, 11]. But, no brief was filed until 7:00
a.m. this morning, and then only in response to the
plaintiff's motion. And, it bears repeating, the brief
was five pages long and cited no case or Federal Rules of
Civil Procedure. The unsupported and feckless claim of the
defendants' lawyer reiterated this morning that she had
the right to instruct a deponent not to answer questions -
even though no claim of privilege was involved - is flatly
wrong. Not surprisingly, the lawyer for the defendants was
unable to call the court's attention to a single case
supporting the notion that she fecklessly sought to advance,
namely that she could instruct a deponent not to answer a
question - even though no claim of privilege was
involved. That she had done so in this case was
intentionally obstructionistic. As Judge Easterbrook,
speaking for a unanimous panel, made clear in Redwood v.
Dobson 476 F.3d 462, 467-468 (7th Cir. 2007):
Webber gave no reason beyond his declaration that the
questions were designed to harass rather than obtain
information-which may well have been their point, but
Fed.R.Civ.P. 30(d) specifies how harassment is to be handled.
Counsel for the witness may halt the deposition and apply for
a protective order, see Rule 30(d)(4), but must not
instruct the witness to remain silent. “Any
objection during a deposition must be stated concisely and in
a non-argumentative and non-suggestive manner. A person
may instruct a deponent not to answer only when necessary to
preserve a privilege, to enforce a limitation directed by the
court, or to present a motion under Rule 30(d)(4).”
Fed.R.Civ.P. 30(d)(1). Webber violated this rule
repeatedly by telling Gerstein not to answer yet never
presenting a motion for a protective order.
a result of defendants' lawyer's conduct, there has
to be an extension of the discovery deadline, which has
already been extended twice by 120 days. [Dkt. ##73, 85].
Plaintiff asks that the date simply be stricken [Dkt. #88,
¶. 13 C], but since the parties have not even been able
to complete simple discovery with hard dates in the past,
open-ended discovery would be ill-advised and inconsistent
with the courts' oft-repeated observation that
unregulated discovery is the bane of modern federal
litigation. Rossetto v. Pabst Brewing Co., Inc., 217
F.3d 539, 542 (7th Cir.2000). Accordingly, all discovery
shall be completed by December 15, which is long after
Officer Kendall's deposition. There will be no further
the plaintiff asks that the defendants be ordered to pay the
costs of $1, 125 incurred in bringing this motion. ...