United States District Court, N.D. Illinois, Eastern Division
JANE DOE 1, JANE DOE 2, JANE DOE 3, JANE DOE 4, JANE DOE 5, Plaintiffs,
CITY OF CHICAGO, a municipal Corporation, Defendant.
MEMORANDUM OPINION AND ORDER
R. Harjani United States Magistrate Judge.
matter is before the Court on two motions for sanctions under
Rule 37(c)(1) of the Federal Rules of Civil Procedure. In
Plaintiffs' motion, the Jane Does move to exclude an
amended rebuttal expert report and some calculations of
Defendant City of Chicago's expert, Dr. Malcolm Cohen.
Doc. . In the alternative, Plaintiffs request that the
time for expert discovery be extended, so that Dr.
Cohen's deposition may be reopened (at Defendant's
expense), and so that Plaintiffs' expert, David Gibson,
may amend his sur-rebuttal report. Id. at 8. In
Defendant's motion, the Defendant moves to strike the
witness disclosures for, and bar the testimony of, the
husbands of Jane Doe 1 and Jane Doe 3. Doc. . Defendant
also requests that the Court award Defendant its reasonable
costs associated with bringing the motion. Id. at 2.
reasons discussed below, both motions are granted in part and
denied in part.
1, 2018, five paramedics initiated the instant action against
the Chicago Fire Department (CFD). Doc. . In their
complaint, the Jane Doe Plaintiffs asserted claims against
the CFD for hostile work environment, quid pro quo
harassment, retaliation, and disparate treatment, in
violation of Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e et seq., and the Illinois Human
Rights Act (“IHRA”), 775 ILCS 5/1-101 et seq.
Id. Plaintiffs also asserted a sex-discrimination claim
under 42 U.S.C. § 1983 and Monell v. Department of
Social Services, 436 U.S. 658 (1978). Id.
after a year of exchanging documents and taking depositions,
discovery has been completed. Fact discovery, with the
exception of one additional round of ESI production, was
ordered to close on April 29, 2019. Docs. [53, 207]. Expert
discovery was ordered to close on September 13, 2019. Doc.
. As part of the Court's expert discovery scheduling
order, Dr. Goldstein's report was to be served on July
26, 2019, and Dr. Cohen's report was to be served on
Plaintiffs by August 9, 2019. Doc. . The parties'
present dispute involves each side's failure to abide by
some of these discovery deadlines.
complaints concern Defendant's experts, Dr. Diana
Goldstein and Dr. Malcolm Cohen. According to Plaintiffs,
Defendant withdrew Dr. Goldstein as its expert on August 19,
2019 but failed to tell Dr. Cohen about that withdrawal until
the morning of his deposition on September 3, 2019, despite
the fact that Dr. Cohen's rebuttal expert report for Jane
Doe 4 relied upon information from Dr. Goldstein's
report. Doc.  at 1-3. Then, on September 6, 2019,
Plaintiffs claim they were “completely surprised”
when “Defendant tendered an amended rebuttal expert
report for Jane Doe 4 . . . three business days before
[Plaintiffs'] sur-rebuttal reports (based on Dr.
Cohen's reports and deposition testimony) were
due.” Id. at 1-2. Plaintiffs further contend
that on that same day, Defendant also “tendered an
extremely untimely disclosure of Dr. Cohen's spreadsheet
of calculations that he used and relied upon to rebut
[Plaintiffs'] economic expert's report.”
Id. at 2.
takes issue with Plaintiffs' Amended Rule 26(a)(1)
disclosures, which were served on September 10, 2019, more
than four months after the close of fact discovery. Doc.
 at 1. The amended disclosures included two new
witnesses: Jane Doe 1's husband and Jane Doe 3's
husband. Id. Defendant asserts that in
Plaintiffs' initial Rule 26(a) disclosures, Plaintiffs
included the husband of Jane Doe 2, but not the husbands of
Jane Doe 1 or 3. Id. at 2. Then on April 10, 2019,
Plaintiffs served amended Rule 26(a) disclosures, which added
many new witnesses, but failed to disclose the husbands of
Jane Doe 1 and Jane Doe 3. Id. Defendants state that
they did not take the depositions of the husbands of Jane Doe
1 and Jane Doe 3 because they were not disclosed as
witnesses, and because Plaintiffs' responses to other
discovery requests indicated that the two husbands did not
have any independent knowledge of the facts in the
litigation, outside of privileged, marital communications.
Id. at 2-3.
response to these grievances on untimeliness, both parties
move for sanctions under Rule 37(c)(1) of the Federal Rules
of Civil Procedure.
37(c)(1) of the Federal Rules of Civil Procedure provides:
Failure to Disclose or Supplement.
If a party fails to provide information or identify a witness
as required by Rule 26(a) or (e), the party is not allowed to
use that information or witness 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). In addition to, or instead of,
prohibiting the use of the information or witness not
properly disclosed or supplemented, Rule 37(c)(1) states that
(A) may order payment of the reasonable
expenses, including attorney's fees, caused by the
(B) may inform the jury of the party's
(C) may impose other appropriate sanctions,
including any of the orders listed in Rule
Id. To determine whether to impose sanctions under
Rule 37(c)(1), the Court must undertake three major steps:
(1) determine that a violation of Rule 26(a) or Rule 26(e)
occurred; (2) determine whether the violation was
substantially justified or harmless; and (3) choose an
appropriate sanction for the violation, if one is found.
See, e.g., Schmelzer v. Muncy, No.
3:16-CV-00290-GCS, 2019 WL 3842335 (S.D. Ill. Aug. 14, 2019)
(finding a Rule 26(a) violation, then determining the
violation was not substantially justified or harmless, and
then calibrating the appropriate sanction); Taylor v.
Cook Cty. Sheriff's Office, No. 13 C 1856, 2018 WL
4101510 (N.D. Ill. Aug. 28, 2018) (same).
this three-step process to the timeliness grievances asserted
by the parties, the Court finds, for the reasons discussed
below, that the sanction of reasonable expenses on both
parties under Rule 37(c)(1)(A) is the appropriate result
Plaintiffs' Motion Concerning Dr. Cohen
move to exclude Dr. Cohen's amended report for Jane Doe 4
and his spreadsheet and calculations relating to overtime and
promotions, based on two purported discovery errors by
Defendant. First, Plaintiffs assert that Defendant submitted
an untimely amended expert disclosure for Jane Doe 4. Second,
Plaintiffs argue that Defendant was late in producing
calculations that Dr. Cohen relied on in rebutting
Plaintiffs' expert, David Gibson.
Spreadsheet Produced on September 6, 2019
with the spreadsheet of calculations relating to David
Gibson, the Court first addresses whether the September 6,
2019 production of Dr. Cohen's spreadsheet constitutes a
violation under Rule 26(a) or Rule 26(e) of the Federal Rules
of Civil Procedure. Rule 26(a)(2)(B) controls the disclosure
of expert witnesses ...