United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
Judge Jeffrey Cole
defendants have filed a motion seeking to vacate my order of
November 20, 2019, which, among other things, noted that
certain of defendants' discovery responses were overdue
and allowed defendant and ordered defendants to comply with
their discovery obligations by November 27, 2019. [Dkt.
#190]. Defendants ask that the order be vacated, that I find
their responses were not overdue, that I allow them until
December 4th to submit their discovery responses,
and that I rescind any previous opinion in which I required
compliance with Local Rule 37.2. [Dkt. #198]. The plaintiff,
confusingly, does not oppose the extension of time despite
having complained about the discovery responses being late,
but opposes the motion to vacate my order. [Dkt. #200, Par.
3]. For the following reasons, the defendants' motion for
an extension to December 4th is granted, but the
balance of their motion is denied.
November 20th hearing, the plaintiff complained
that the defendants were about three months late in
responding to discovery requests the plaintiff served in late
August. The defendants now contend that their responses, at
the time of my previous order, were not overdue. According to
the defendants, plaintiff submitted discovery requests on
August 22, 2019, making responses due, under the Federal
Rules, by September 22nd, although defendants
indicate that there was an expedited deadline of August
26th pursuant to the TRO, which plaintiffs
extended to September 10th. [Dkt. # 198, at 6].
Defendants argue that the parties agreed that no discovery
could be exchanged before a protective order was in place,
which defendant charges was delayed by plaintiff and not
entered until October 23rd. [Dkt. # 198, at 7]. Defendants
also complain that plaintiff has not mentioned the overdue
responses on at least a couple of occasions, and as a result
of that, and MIDP discovery, defendants thought
plaintiff's requests had “expired.” [Dkt.
#198, at 8].
the defendants cannot deny that, once the November 20th order
was entered, the defendants' discovery responses were due
on November 27th. But they filed their instant
motion, seeking an extension of that deadline, at 11:55 p.m.
on November 27th, the very date the responses were
due. [Dkt. #198]. To make matters worse, they noticed their
motion for a hearing for December 5th, a week
after the deadline would have passed. [Dkt. #199]. Obviously,
asking for an extension of a deadline at five minutes to
midnight on the date time expires is too late. Presenting a
motion for a hearing a week after the deadline expires is
really too late. See Fed.R.Civ.P. 6(b)(1)(B)(party
must show excusable neglect for not having filed motion
before time expired); Monco v. Zoltek Corp., 2019 WL
4686547, at *2 (N.D. Ill. Sept. 26, 2019)(“Extensions
by default, . . . and that is in reality what is sought by
the defendants - ought not be allowed.”); Logan v.
Berryhill, 2017 WL 1344521, at *2 (N.D. Ill. Apr. 12,
2017). What could an attorney engaging in such tactics
possibly think was going to happen?
delays involving the entry of a protective order ought not to
delay putting together a discovery response to be prepared
for submission once the order was entered. And, certainly,
the entry of the order on October 23rd ought not to have any
delaying effect on defendants' obligations under my order
of November 20th, which was a month after the
entry of the protective order. Indeed, if the defendants
originally had five days to respond to the expedited
discovery request, as they indicate, then even using the
entry date of the protective order as a starting point, the
responses ought to have been submitted by October
28th, over a month ago. As for whether the
requests had “expired, ” that's something
defendants should have raised at the hearing on November
20th. Based on their motion, they didn't.
Defendants cite a few transcript pages from the November
20th hearing in their motion, but they attach no
transcript to the motion, and none is docketed. They do not
cite to any transcript page suggesting they raised this at
the hearing [Dkt. # 198, at 5], and review of the recording
shows that defendants raised the delay in entering the
protective order as the only excuse, with no mention of
anything having “expired.”
for reasons best known to itself, after raising the lateness
of defendants' responses, plaintiff no longer cares and
is fine with an extension to December 4th,
essentially a three month grace period. Why, then, would
plaintiff raise the issue at the hearing and set this entire
tempest in a teacup in motion? The filings and entries in the
docket in this four-month-old case already amount to a
staggering 7200 pages. As defendants point out, this case has
been heavily litigated, and that means plaintiff has already
enjoyed quite a bit of taxpayer-funded dispute resolution.
And now, plaintiff has apparently wasted court time by asking
for an order compelling defendants to comply in timely
fashion with discovery obligations when plaintiff apparently
didn't care whether defendant did so. See, e.g,
Chicago Observer, Inc. v. City of Chicago, 929 F.2d 325,
329 (7th Cir. 1991) (“Litigation is costly not only for
the litigants but also for parties in other cases waiting in
the queue for judicial attention.”); Chapman v.
First Index, Inc., 796 F.3d 783, 787 (7th Cir. 2015)(the
public should not be made to subsidize needless disputes);
Gunn v. Stevens Sec. & Training Servs., Inc.,
2018 WL 1737518, at *3 (“Here, the taxpayers have been
made to subsidize a discovery dispute needlessly.”).
it should be pointed out that neither the plaintiff or the
defendants “own” the discovery schedule, on this
occasion, as the motion for an extension is not opposed, it
will be granted. Defendants's responses are due December
4th. As they have now had six weeks since the
entry of the protective order, those responses should be
completed and ready to be filed tomorrow. As for vacating the
order, the defendants' responses will be extremely late.
As such, the pertinent authority and the federal rules
dictate that objections are waived. Fed.R.Civ.P.
33(b)(4)(“Any ground not stated in a timely objection
is waived unless the court, for good cause shown, excuses the
failure.”); Martinez v. Cook Cty., 2012 WL
6186601, at *3 (N.D. Ill.Dec. 12, 2012)(“A party's
failure to timely object to discovery requests without
demonstrating good cause for the delay may result in a waiver
of all objections that could otherwise have been
asserted.”); Buonauro v. City of Berwyn, 2011
WL 116870, at *4 (N.D. Ill. Jan. 10, 2011)(failure to object
to request for production in timely manner is a waiver).
I will not be rescinding my previous opinions regarding
compliance with Local Rule 37.2. “District courts have
considerable discretion in interpreting and applying their
local rules . . . .” Frakes v. Peoria Sch. Dist.
No. 150, 872 F.3d 545, 549 (7th Cir. 2017);
Sapia v. Bd. of Educ. of the City of Chicago, 318
F.Supp.3d 1049, 1051 (N.D. Ill. 2018). Physicians
Healthsource, Inc. v. Allscripts-Misy's Healthcare Sols.,
Inc., 2012 WL 5989203, at *3 (N.D. Ill. Nov. 29, 2012);
Sapia v. Bd. of Educ. of the City of Chicago, 318
F.Supp.3d 1049, 1051 (N.D. Ill. 2018). I was presented with
an oral complaint, by way of a housekeeping matter at the end
of a hearing, that discovery requests made three months
earlier had not been responded to. The only excuse offered
was that the protective order had not been entered until
October 28th. Obviously, as already discussed,
that was no excuse at all and I decided that ordering a
meet-and-confer at that late date would have accomplished
problem here, especially given the plaintiff's
about-face, appears to be that when they do confer, the
parties are not really conferring in good faith, which
requires more than both sides sticking to their guns.
See, e.g., Motorola Sols., Inc. v. Hytera Commc'ns
Corp., 365 F.Supp.3d 916, 921 (N.D. Ill.
2019)(“While they ‘conferred telephonically, all
this consisted of was [plaintiff] asking [defendant] if it
still opposed forensic inspection and [defendant] saying it
did.”); Chicago Reg'l Council of Carpenters
Pension Fund v. Celtic Floor Covering, Inc., 316
F.Supp.3d 1044, 1046 (N.D. Ill. 2018)(“An ultimatum on
one side, met with steadfast defiance on the other, is not a
good faith discussion.”); Gunn v. Stevens Sec.
& Training Servs., Inc., 2018 WL 1737518, at *3
(N.D. Ill. 2018)(“A party that steadfastly maintains a
position without support is not engaging in a good faith
discussion.”); Infowhyse GmbH v. Fleetwood
Grp., 2016 WL 4063168, at *1 (N.D. Ill. 2016)(“A
single phone call in three months regarding a dispute that
has engendered nearly 500 pages of briefs and exhibits
doesn't come close to sufficing.”).
any future discovery motion must contain a detailed,
joint statement of the parties' efforts to resolve their
disputes over each of the document requests at issue, along
with their final positions, supported by pertinent authority,
on each request that remains in dispute. See Autotech
Techs. Ltd. P'ship v. Automationdirect.Com, Inc.,
No. 05 C 5488, 2007 WL 2713352 (N.D. Ill. Sept. 12, 2007);
O'Toole v. Sears, Roebuck & Co., 302 F.R.D.
490, 491 (N.D. Ill. 2014). Failure to comply ...