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Liner v. FCA U.S. LLC

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

October 17, 2019

JARLON LINER, Plaintiff,
v.
FCA U.S. LLC, a/k/a FIAT CHRYSLER AUTOMOBILES, a Delaware Corporation and, TOMASZ GEBKA, in his Individual Capacity, Defendants.

          MEMORANDUM OPINION AND ORDER

          Jeffrey Cole Magistrate Judge.

         INTRODUCTION

         Plaintiff filed a Motion to Compel and for Sanctions on October 7, 2019. [Dkt. ##50-51]. The motion lists a large number of interrogatories and document requests to both the corporate and individual defendant, number by number, that defendants have objected to. Plaintiff seeks responses rather than objections and also outlines the difficulties encountered with scheduling depositions of one of the individual defendant and two of the corporate defendant's employees. Finally, the plaintiff asks that the defendants be subjected to “the highest form of discovery sanctions that can be issued for interference with the discovery process.”[1] Fact discovery is to end on 10/21/19. [Dkt. #41] This Opinion supplements the rulings made in court on October 17, 2019.

         A.

         Plaintiff filed this race discrimination in employment case on September 10, 2018, and discovery began under the Mandatory Initial Discovery Pilot, with initial submissions due on December 19, 2018, and ESI submissions due on January 28, 2019. [Dkt. # 16]. At the initial status hearing on December 30, 2018, Judge Gettleman ordered discovery to close by August 20, 2019. [Dkt. #19].

         At the parties' initial status hearing before me on June 4, 2019, I learned that plaintiff had not yet issued any discovery requests and, according to defendants, had not responded to their discovery requests. I ordered the parties to have a Local Rule 37.2 conference regarding their discovery issues, and set a status for July 18th to see what progress they had made. [Dkt. #23]. Not much more than a week later, however, the defendants filed a motion to compel discovery responses from plaintiff, noting a number of claimed deficiencies, including: plaintiff had yet to provide a computation of damages, which had been due on December 19, 2018, under the MIDP Order; plaintiff had failed to respond to defendants' requests for production of documents; plaintiff had failed to respond to defendants' interrogatories. Responses were all overdue, although defendants had agreed to extensions amounting to 26 days. [Dkt. #24]. I granted the defendants' motion on June 18, 2019, and cautioned the plaintiff that under basic Rules, continued non-compliance with discovery obligations could result in sanctions, possibly including dismissal. [Dkt. # 26].

         At the next status hearing (which had been postponed two weeks at the parties' request so they could confer over outstanding discovery matters) on July 18th, it was reported that plaintiff had only partially complied with FRCP 26(a)(1) and only recently attempted to conduct certain basic discovery; the defendants had not done much better. Neither side had even taken a single deposition despite the imminent close of discovery in a month on August 20, 2019. [Dkt. #32]. The defendants' counsel was bristling at the fact that plaintiff's counsel had chosen to make discovery requests through email rather than formal service and he had not been asked if that were acceptable. As time was running out for the parties, I encouraged some flexibility. Following the hearing, defense counsel informed my chambers that his client had finally agreed to accept discovery by email. [Dkt. #32].The conduct of the defendant's then counsel in this regard was unjustifiable and intentionally obstructionistic.

         After that, on July 22nd, defendants' counsel emailed plaintiff's counsel indicating they would like to depose plaintiff, and suggested dates of August 15th or 19th. Although defendants' counsel asked for a response by July 25th, plaintiff didn't get back to them until August 7th when she asked when they would respond to her discovery requests, and indicated she would like to depose Tomasz Gebka on August 14th, 15th or 16th, but understandably wanted responses before that. Counsel said there were several other depositions she wanted to take and would let the defendants know their names. She didn't respond to the defendants' dates for her client's deposition. Defense counsel responded that same day, stating their responses would be provided by the August 18th deadline. They also informed plaintiff's counsel that Mr. Gebka was out of country on vacation until August 19th and, as discovery closed the next day, they would not oppose a ten-day extension for the purpose of taking his deposition. [Dkt. #50-8].

         The next thing that happened should surprise no one. On August 9, 2019, eleven days before the end of discovery, plaintiff filed a motion for a 60 day extension of the deadline, from August 20thto October 20th. [Dkt. #33]. Counsel offered a number of reasons why the extension was warranted:

1. Shortly after December 20, 2018, plaintiff's counsel sprained both her ankles.
2. She thereafter contracted bronchitis.
3. In may of 2019, she sprained her foot and had to keep off of it for six weeks.
4. Plaintiff's counsel was a solo practitioner with a heavy workload.
5. Plaintiff's deposition was scheduled for the same day defendants' discovery responses were due, August 19th.
6. Plaintiff still had 4-5 other depositions to take, with less than 2 weeks left in discovery, including named defendant Gebka.
7. Gebka was out of the country.

[Dkt. #33]. Upon hearing the plaintiff's motion on August 19th, I noted that none of her claims were supported by any evidence or even by an appropriate Declaration. [Dkt. #38]. Plaintiff filed a declaration supporting her claims the next day and, given counsel's medical difficulties, I granted plaintiff's motion for an extension on August 21st, ordering all fact discovery be completed - not merely requested - by October 21st. [Dkt. #41].

         Despite that warning, deposition scheduling attempts seemingly did not occur for over a month. On September 26th, plaintiff's counsel noticed the deposition of Mr. Gebka for October 8th, of Mr. Finley and Mr. Valez the morning and afternoon of October 9th, respectively, in Chicago. Plaintiff's counsel mistakenly referred to both dates as Tuesday. [Dkt. #50-10, 11, 12]. Plaintiff's counsel also mistakenly requested Mr. Finley, who is not a party, to produce documents at his deposition. There was no subpoena duces tecum, see Fed.R.Civ.P. 30(b)(2), 34, Webb v. Bender, 717 Fed.Appx. 642, 644 (7th Cir. 2018), and even if Mr. Finley were a party, he was given only two weeks to respond to the “document request” instead of requisite 30 days. See Fed.R.Civ.P. 34(B)(2)(A). After a week, on October 3rd, defendants' counsel emailed plaintiff's counsel to inform her that none of those dates would work. Counsel said there were “several references to to Tuesday October 8 and Tuesday October 9", but his schedule would not permit any depositions that week. He asked if any dates the week of October 14th would work. He asked if the depositions of Mr. Valez and Mr. Findlay - who resided in Michigan - could be done in Auburn Hills. [Dkt. # 50-5]. The week of the 14th, of course, was the final week of discovery, as both sides well knew.

         The parties were supposed to have a phone conference regarding discovery issues at 4:30 p.m. on October 3rd. It didn't happen. Plaintiff's counsel emailed defendants' counsel at 4:56 on the 3rd to say she attempted to reach him, without success, although she ran a little late. [Dkt. # 50-5]. On Sunday October 6th, defendants' counsel emailed back, saying he was sorry they hadn't connected. He allowed that Mr. Valez could be deposed in Auburn Hills on October 14th, Mr. Findlay could be deposed in Auburn Hills in the afternoon on October 16th, and Mr Gebka could be deposed in Rockford on October 18th. [Dkt. # 50-14]. The following day, on October 7, 2019, two weeks before the discovery deadline, plaintiff filed a “Motion to Compel and for Sanctions.” Defendants' claim that they made several attempts to meet and confer with plaintiff's counsel after that. Defendants' counsel further claims that the parties were able to resolve a number of the issues regarding defendants' discovery responses on October 11th, several days after plaintiff's motion was filed. [Dkt. # 58, at 3]. This may or may not have been the case as neither side alerted the court that any of the pending disputes had been resolved. Defendants' response says nothing at all regarding plaintiff's document requests, so those will be addressed and ruled on.

         Certainly, plaintiff's counsel, whose motion this is, ought to have alerted the court immediately when nearly two dozen of the discovery disputes she made part of her motion were resolved. She did not and instead, more time and tax payer expense was wasted as the court went through her many grievances. It was not until mid-day the day before the motion was to be heard, and nearly a week after the parties resolved a number of their differences, that the defendants informed the court of those resolutions. [Dkt. # 58]. Given all the accommodations plaintiff's counsel has received in this case, this is simply unacceptable.

         But, back to the mess that discovery has become in this case. Plaintiff tendered her document requests and interrogatories to defendants on July 17, 2019 - the email tender that caused the spat - meaning responses were due a month later, by August 17th. [Dkt. # 50, Par. 1]. When plaintiff sent those requests, August 20th was the end of discovery, so she was playing with fire, especially if, as she says, she wanted response before she deposed defendant, Gebka. The defendants responded in timely fashion on August 16th, but mindlessly lodged objections to all but a few of the requests. Plaintiff was, of course, unhappy with the type of response, and not without some justification. It was consistent with the defendant and its then lawyers approach to discovery. But that was back in mid-August. It is now well into October with, once again, the close of discovery approaching, albeit in significantly delayed fashion at plaintiff's request. According to plaintiff's motion, the next things she did were: re-notice Gebka's deposition on September 29th for October 8th, and two others for October 9th; exchange emails with defendants' counsel on October 3rd through 6th; ...


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