United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
Jeffrey Cole Magistrate Judge.
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.” Fact discovery is to end on 10/21/19.
[Dkt. #41] This Opinion supplements the rulings made in court
on October 17, 2019.
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].
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. #
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.
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].
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
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
5. Plaintiff's deposition was scheduled for the same day
defendants' discovery responses were due, August
6. Plaintiff still had 4-5 other depositions to take, with
less than 2 weeks left in discovery, including named
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].
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.
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.
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
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; ...