Doe v. City of Chicago

          MEMORANDUM OPINION AND ORDER

          Sunil R. Harjani United States Magistrate Judge.

         This 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. [255]. 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. [267]. Defendant also requests that the Court award Defendant its reasonable costs associated with bringing the motion. Id. at 2.

         For the reasons discussed below, both motions are granted in part and denied in part.

         BACKGROUND

         On May 1, 2018, five paramedics initiated the instant action against the Chicago Fire Department (CFD). Doc. [1]. 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.

         Now, 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. [222]. 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. [204]. The parties' present dispute involves each side's failure to abide by some of these discovery deadlines.

         Plaintiffs' 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. [255] 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.

         Defendant 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. [268] 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.

         In response to these grievances on untimeliness, both parties move for sanctions under Rule 37(c)(1) of the Federal Rules of Civil Procedure.

         DISCUSSION

         Rule 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 the Court:

(A) may order payment of the reasonable expenses, including attorney's fees, caused by the failure;

(B) may inform the jury of the party's failure; and

(C) may impose other appropriate sanctions, including any of the orders listed in Rule 37(b)(2)(A)(i)-(vi).

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).

         Applying 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 here.

         A. Plaintiffs' Motion Concerning Dr. Cohen

         Plaintiffs 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.

         1. Spreadsheet Produced on September 6, 2019

         Beginning 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 ...