United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
Jeffrey Cole, Magistrate Judge.
On
October 21, 2019, ten days before the close of fact
discovery, the defendants filed two motions: a motion to
compel responses to Interrogatories 12 and 13, and production
of documents responsive to Requests 6, 8, and 9 [Dkt. # 57,
¶¶ 14, 15]; and a motion to extend the discovery
deadline of November 1st for 90 days, to February
1st. [Dkt. #58]. As to the motion to compel [Dkt.
# 57], that motion is denied as the parties have not met and
conferred as required by Local Rule 37.2. Defendants tell the
court that, over the course of a month, for September
9th to October 7th, the parties
exchanged 4 emails. [Dkt. # 57, Pars. 8-11]. The Local Rule
specifically requires “consultation in person or by
telephone . . . .” N.D.Ill. Local Rule 37.2. If that
were not enough, case after case makes clear that as
significant as emails are for evidentiary purposes,
BankDirect Capital Fin., LLC v. Capital Premium Finance,
Inc., 2018 WL 1616725 at *10 (N.D.Ill. 2018), for
purposes of Rule 37.2, emails do not count. See
BankDirect Capital Fin., LLC v. Capital Premium Fin.,
Inc., 343 F.Supp.3d 742, 744 (N.D. Ill. 2018)(collecting
cases).
The
reasons for this requirement are manifold, but one it
highlighted by the defendants' other motion, their motion
for an extension of the discovery deadlines. Defendants
received plaintiff's discovery responses on August 26,
2019. After two weeks went by, defendants emailed plaintiff
to express their displeasure with 4 of the plaintiff's
interrogatory responses. [Dkt. #57-2]. Another week went by
before plaintiff emailed a response, supplemented his
answers. [Dkt. #57-3]. On September 19th,
defendants emailed plaintiff to express displeasure with six
of plaintiff's response to defendants' requests for
documents. [Dkt. #57-1]. More than two weeks then went by
before plaintiff supplemented his responses, although issues
as to a handful of interrogatories and document requests
remained. [Dkt. #57-6]. After two more weeks passed,
defendants filed their motion to compel.
Letters
and emails are easily and unfortunately too often ignored.
See Geraci v. Andrews, 2017 WL 1822290, at *1 (N.D.
Ill. May 5, 2017); Infowhyse GmbH v. Fleetwood Grp.,
2016 WL 4063168, at *1 (N.D. Ill. July 29, 2016); Slaven
v. Great Am. Ins. Co., 2014 WL 4470723, at *2 (N.D. Ill.
Sept. 11, 2014); O'Toole v. Sears, Roebuck &
Co., 302 F.R.D. 490, 491 (N.D. Ill. 2014). What could
have been addressed in one or perhaps two meetings over the
course of a week or two, took a month and a half. All with
the discovery deadline looming ever closer. Unfortunately,
this sort of behavior is all too common in the context of
discovery. Little wonder that “discovery, [is] the bane
of modern litigation.” Rossetto v. Pabst Brewing
Co., Inc., 217 F.3d 539, 542 (7th Cir.2000). We
“‘must be mindful of the realities of modern
litigation. Pre-trial discovery under modern federal practice
has become a monster on the loose .... Pre-trial proceedings
have become more costly and important than trials
themselves.'” A.H. Robins Co. v. Piccinin,
788 F.2d 994, 1013 (4th Cir. 1986).
That
provides a segue to defendants' motion for a
ninety-day extension of the discovery deadlines.
Defendants submit that, pursuant to Fed.R.Civ.P. 16(b), there
is good cause for the extension, that they have diligently
attempted to meet the deadline, and their failure to do so
was through no fault of their own. See, e.g., Empress
Casino Joliet Corp. v. Balmoral Racing Club, Inc., 831
F.3d 815, 832 (7th Cir. 2016)(good cause requirement for
modification of schedule is “a standard that
‘primarily considers the diligence of the party seeking
amendment.'”); Alioto v. Town of Lisbon,
651 F.3d 715, 720 (7th Cir. 2011)(“In making a Rule 16
(b) good-cause determination, the primary consideration for
district courts is the diligence of the party seeking
amendment.”). But defendants “offer[] an
insufficiently robust explanation of why [t]he[y] w[ere]
diligent.” Alioto, 651 F.3d at 720. As already
noted, they spent several weeks exchanging emails about a
handful of discovery responses. Defendants tell the court
that, as of October 21st, a little more than a
week before the discovery deadline, “none of the
parties or witnesses have been deposed and there are no
depositions scheduled.” [Dkt. #58, Par. 11]. According
to the parties' emails, as September 9th,
defendants's counsel had done no more than “reach
out to all three officers to determine their
availability.” [Dkt. #57-2]. Plaintiff's counsel
was not much more impressive in terms of diligence. It was
already September 16th when he wrote:“we
have about two weeks until discovery closes. Accordingly,
please see attached notice of depositions for defendant
officers. Additionally, please let me know what date you
would like to take Plaintiff.” [Dkt. #57-3].
Plaintiff's counsel didn't even know what the
schedule was; the lawyers actually had six weeks at the time
of his email.
In the
context of the law, diligence is not in the eye of the
beholder. At least it is not determined by one's
perception. Discovery began a year ago. [Dkt. 22]. Fact
discovery was originally set to close, by agreement of the
parties, on April 5, 2019. [Dkt. ##25, 28]. On April 9, 2019
- 4 days after discovery ought to have closed - defendants
were given an extension of the deadline to September 1, 2019.
[Dkt. #44]. On July 11, 2019, the defendants were granted
another extension, this time until November 1, 2019. [Dkt.
#55]. Even if a few interrogatory and document production
disputes remain, deposition dates can be set. While it is
unacceptable to paint a court into a corner as the parties
have here, because they have done absolutely nothing about
depositions, clearly there must be some extension. Based on
the email exchange, the defendant appeared to think that
depositions could be scheduled and completed in six weeks -
between September 16th and November
1st. [Dkt. # 57-3]. Accordingly, that is all the
additional time the parties shall be allowed. All discovery
shall close on December 13, 2019. There shall be no further
extensions. Parties are reminded of Local Rule 16.1
(4)(“Discovery requested before the discovery closing
date, but not scheduled for completion before the discovery
closing date, does not comply with this order.”).
A
hearing on the motions is presently set for 10/24/19. In
light of the timing of this Opinion, no appearance will be
necessary on 10/24/19. Additionally, the status hearing
presently ...