Currently pending before the Court is plaintiff Douglas Ousterhout, M.D., D.D.S.'s and counter-defendant Mira Coluccio's Motion to Compel and for Sanctions (Dkt. 360) seeking discovery and sanctions, including a default judgment, against defendant and counter-plaintiff Mark Zukowski, M.D. as well as attorneys' fees and costs. In light of the dispositive relief sought, the Court respectfully recommends that the District Court grant in part and deny in part the motion against defendant.

The background of this matter has been discussed at length in previous Court orders and party motions. In brief, plaintiff/counter-defendant, Dr. Douglas Ousterhout initiated this action alleging defamation per se and defamation per quod against defendant/counter-plaintiff, Dr. Mark Zukowski (“Zukowski” or “defendant”). Specifically, plaintiff alleges that defendant presented slides at a conference depicting improper surgeries performed by the plaintiff. Zukowski denied the allegations and filed a counterclaim against Ousterhout and a third-party complaint against Ousterhout's employee, Mira Coluccio, for defamation per se (collectively “Ousterhout Parties”).

In their Motion, the Ousterhout Parties seek to compel Zukowski to produce responsive documents and provide certain information pertaining to, among other things, electronically stored information (“ESI”).[1] More specifically, the Ousterhout Parties allege in their Motion that Zukowski has: (1) not informed the Ousterhout Parties of what ESI has been searched and has not provided the Ousterhout Parties with a list of search terms used as requested since 2013; (2) failed to produce complete copies of emails and email chains that were produced as requested since 2014; (3) refused to confirm whether certain documents constitute complete emails as requested since 2014; (4) refused to provide information about an allegedly “hacked” email account as requested since 2014; (5) failed to produce, and potentially preserve, responsive communications with a witness, Diane Ellaborn, about a declaration she submitted in this case; (6) refused to produce responsive documents and communications with another witness, Dr. Joel Beck; and (7) should be required to produce all other relevant documents and communications with other witnesses. The Ousterhout Parties seek an order requiring Zukowski to produce the above-referenced documents and information.

The Ousterhout Parties also seek to obtain sanctions against Zukowski and his counsel for their actions, including an order entering default judgment against Zukowski, an adverse inference (at trial) in favor of the Ousterhout Parties as well as fees and costs and an amount sufficient to deter such conduct in the future.

*2 The parties' arguments are further discussed below.

Rule 26(b)(1) of the Federal Rules of Civil Procedure allows the parties to obtain discovery regarding “any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case.” FED. R. CIV. P. 26(b)(1). “In ruling on motions to compel discovery, courts have consistently adopted a liberal interpretation of the discovery rules.” Kodish v. Oakbrook Terrace Fire Prot. Dist., 235 F.R.D. 447, 450 (N.D. Ill. 2006) (citation omitted); see Cannon v. Burge, No. 05 C 2192, 2010 WL 3714991, at *1 (N.D. Ill. Sept. 14, 2010) (“The federal discovery rules are liberal in order to assist in trial preparation and settlement.”). “Courts commonly look unfavorably upon significant restrictions placed upon the discovery process,” and the “burden rests upon the objecting party to show why a particular discovery request is improper.” Kodish, 235 F.R.D. at 450.

“For purposes of [Rule 37(a) ], an evasive or incomplete disclosure, answer, or response, must be treated as a failure to disclose, answer, or respond.” FED. R. CIV. P. 37(a)(4). A party may move for an order compelling discovery after conferring or attempting to confer in good faith with the party failing to produce discovery. FED. R. CIV. P. 37(a); Local Rule 37.2. If a motion is granted in part and denied in part, the court may after giving an opportunity to be heard, apportion the reasonable expenses for the motion. FED. R. CIV. P. 37(a)(5)(C). The Court may sanction a party for failing to respond to requests to produce and interrogatories. FED. R. CIV. P. 37(d)(1). The Court may award sanctions up to entry of judgment if a party fails to respond to written discovery requests. FED. R. CIV. P. 37 (b)(2)(A)(i)-(vi).

Sanctions against counsel may also be awarded under 28 U.S.C. § 1927 and are appropriate when “ ‘counsel acted recklessly, counsel raised baseless claims despite notice of the frivolous nature of these claims, or counsel otherwise showed indifference to statutes, rules, or court orders.’ ” Grochocinski v. Mayer Brown Rowe & Maw, LLP, 719 F.3d 785, 799 (7th Cir. 2013) (quoting Kotsilieris v. Chalmers, 966 F.2d 1181, 1184-85 (7th Cir. 1992)).

The Ousterhout Parties argue that since 2013 Zukowski has been evasive and uncooperative in identifying ESI search terms and affirming whether relevant and responsive documents have been produced. (Dkt. 360 at p. 4-5.) In response, Zukowski states that the Ousterhout Parties have waited too long to move to compel the information sought. (Dkt. 370 at p. 5.) Zukowski also argues that he conducted an ESI search at the outset of this litigation and produced responsive documents, and the Ousterhout Parties have also failed to produce their ESI. (Id. at p. 8-9.)

As an initial matter, Zukowski correctly points out that the Ousterhout Parties have waited a long time to pursue Zukowski's ESI. This case was filed in 2011, and the dispute over identifying ESI search terms and developing ESI protocols dates back to 2013. (Dkt. 360-4 to 360-12.) Why the Ousterhout Parties waited this long to compel production is not explained in their briefs. Having said that, nothing in Zukowski's response brief suggests that he thought that the Ousterhout Parties no longer took issue with Zukowski's ESI. Therefore, while there is reason to deny the motion as untimely (see, e.g., In re Sulfuric Acid Antitrust Litig., 231 F.R.D. 331, 336 (N.D. Ill. 2005)); see also Grassi v. Info. Res., Inc., 63 F.3d 596, 604 (7th Cir. 1995) (affirming denial of untimely motion to compel discovery), the Court does not recommend denying the motion on this basis.

*3 Zukowski may have produced to the Ousterhout Parties documents and information culled from his search of ESI. However, based on the briefing, it is not clear what ESI search terms or protocols Zukowski used. Despite the delay in bringing the motion, the Ousterhout Parties are entitled to know the search terms and protocols, and Zukowski should affirm that all responsive documents have been produced.

The reverse is also true. That is, to the extent that the Ousterhout Parties have not provided it, Zukowski is entitled to know ESI search terms and protocols the Ousterhout Parties used and an affirmation that all responsive documents have been produced.[2] Accordingly, this Court recommends that the District Court direct Zukowski to provide the Ousterhout Parties with a list of ESI search terms and protocols Zukowski used as well as an affirmation that all responsive documents have been produced, and that the Ousterhout Parties are to provide the same to Zukowski.

Finally, it appears that the Ousterhout Parties could have brought this motion years ago potentially cutting short the protracted discovery schedule in this case. As the Ousterhout Parties have not explained why they waited until now to raise this issue with the Court, it does not appear that the Ousterhout Parties have been diligent in resolving this discovery dispute.[3] Accordingly, this Court recommends that the District Court deny the Ousterhout Parties' attorney fees and expenses on this issue.

The Ousterhout Parties argue that Zukowski produced only portions of email chains in response to specific production requests (as opposed to an entire email chain) and they have been seeking them since 2014. (Dkt. 360 at p. 5.) The Ousterhout Parties reconstructed specific email chains and asked Zukowski's counsel to confirm whether the reconstructed emails were complete. (Dkt. 360 at p. 5 – 8.) According to the Ousterhout Parties, the emails that were produced had a “print date” of 2012 – after this litigation commenced – and Zukowski should be required to identify complete email chains that were produced in this case and to the extent that cannot be done, explain why. (Id.) Alternatively, the Ousterhout Parties argue that a third-party, approved by counsel for the Ousterhout Parties, should search Zukowski's emails using protocols identified by the Court. (Id.)

In response, Zukowski argues that he produced all emails in his possession, custody or control and provided the Ousterhout Parties with at least some of the missing email chains on April 4 and 17, 2014 and indicated that the pages have all been provided. (Dkt. 360-14 & 360-17.)

It may be the case that Zukowski produced a complete email chain scattered throughout his production. What is not clear to this Court is whether Zukowski has responded to all of the Ousterhout Parties' requests for “complete” email chains at issue. In this Court's opinion, the entirety of an email chain may assist in the context of interpreting specific responsive emails and may identify other issues that relate to the claims at issue in this litigation. Accordingly, the Court recommends that the District Court direct that Zukowski identify complete email chains, and to the extent that cannot be done, he should provide the Ousterhout Parties with an affidavit explaining why. The parties should decide among themselves the best manner in which to achieve this as the Court will not be involved in setting out the protocol the parties should implement in order to identify the emails.

*4 Finally, as with the ESI issue, based on the Ousterhout Parties' delay in bringing this motion, they do not appear to have been diligent in resolving this discovery dispute. Accordingly, this Court recommends that the District Court deny the Ousterhout Parties' attorney fees and expenses.

The Ousterhout Parties assert that in response to their request to defendant about incomplete emails, part of Zukowski's explanation for why he could not obtain some missing pages was that the relevant email account had been “hacked.” (Dkt. 360 at p. 8-10.) The Ousterhout Parties argue that, in 2014, they began asking Zukowski to provide certain information about the “hacked” account including a list of follow-up inquiries, and they are still seeking this information. (Id.)

In response, the defendant argues that the motion should be denied because he provided all information that he has regarding the hacked account to the Ousterhout Parties several years ago, including information identifying the email provider. (Dkt. 370 at p. 6-8.) Zukowski also argues that the Ousterhout Parties' information requests were not formal discovery requests. (Id.)

As an initial matter, there seems to have been a significant delay since the Ousterhout Parties were informed in 2014 of the hacking (Dkt. 360-5 at p.8) and the filing of their motion in 2016. In addition, the Ousterhout Parties' informal requests for information pertaining to a hacked email account, even if reasonable, are not a formal discovery requests that serve as a basis for a motion to compel. While informal requests are often honored by an opposing party, they are not recognized under the Federal Rules of Civil Procedure. See e.g., Studio & Partners, s.r.l. v. KI, No. 06-C-0628, 2007 WL 896065, at *1-2 (E.D. Wis. Mar. 22, 2007) (denying motion to compel responses to informal discovery requests but noting that most attorneys accommodate their adversaries by responding to informal requests in the interest of avoiding the time and expense of formal requests). Accordingly, at this juncture, the Court recommends that the District Court deny the motion to compel and the Ousterhout Parties' request for attorney fees and expenses but allow the Ousterhout Parties leave to issue 10 interrogatories regarding the hacked email account.

In addition, this Court recommends that the District Court deny the Ousterhout Parties' motion to the extent that they seek entry of default judgment or an adverse inference at trial because Zukowski did not preserve the email account. (Dkt. 360 at p. 10.) Either sanction does not appear to be proportionate to the circumstances presented to this Court at this time. See e.g., Collins v. Illinois, 554 F.3d 693, 696 (7th Cir. 2009) (noting that sanctions should be proportionate to the offending conduct and default reserved for circumstances demonstrating willfulness, bad faith or fault); Fass v. Sears, Roebuck & Co., 532 F.3d 633, 644 (7th Cir. 2008) (a showing of bad faith is required before an adverse inference sanction). The Ousterhout Parties cite no legal authority and have not demonstrated that Zukowski was responsible for the hacking or that the hacking was within Zukowski's control – this could be because they require more information about the hacking. Accordingly, this Court recommends that the District Court deny the Ousterhout Parties' motion for sanctions.

*5 The Ousterhout Parties seek an order directing Zukowski to produce information regarding certain witnesses in this case in response to document requests. More specifically, the Ousterhout Parties seek an order directing Zukowski to produce copies of communications and attachments with Ms. Ellaborn or face sanctions. The Ousterhout Parties also seek copies of all documents and communications with Dr. Beck, an affidavit affirming that all documents have been produced (or an explanation as to why not) and sanctions. The Ousterhout Parties also seek an order directing Zukowski to produce responsive documents and communications with “other witnesses and potential witnesses.” (Dkt. 360 at p.10-15.)

Zukowski asserts that the Ousterhout Parties have all the information that he has with respect to drafts of declarations and correspondence with Ms. Ellaborn and Dr. Beck (except for a fax cover page and cover email).[4](Dkt. 370 at p. 10-11.) With respect to other witnesses and potential witnesses, Zukowski argues that the request is overbroad. (Id.)

The Ousterhout Parties' requests for documents and communications regarding Ms. Ellaborn and Dr. Beck relate to their document production requests to Zukowski; subpoena responses from Ms. Ellaborn and Dr. Beck from August and November 2015, respectively; and Ms. Ellaborn's deposition testimony from November 2015. Both parties present conflicting positions: the Ousterhout Parties claim they do not have all documents related to Ms. Ellaborn and Dr. Beck; and Zukowski claims that they do. Accordingly, this Court recommends that the District Court direct Zukowski to review his records and confirm that he has produced all documents with respect to Ms. Ellaborn and Dr. Beck.

With respect to the Ousterhout Parties' motion that Zukowski “produce all communications with witnesses or potential witnesses ... and all documents that related to the allegations of this case,” in this Court's opinion, the request is overbroad. While the Ousterhout Parties have provided examples, they have not explained who the other “witnesses and potential witnesses” are nor have they explained what bearing production of information would have with respect to the claims at issue. Documents and related correspondence, as sought by the Ousterhout Parties, may be responsive to discovery requests but the Ousterhout Parties have not described the information they seek with more particularity in their motion. Accordingly, this Court recommends that the District Court deny the Ousterhout Parties' motion to compel Zukowski to produce documents relating to witnesses and potential witnesses.

In addition, as with the hacked email account, sanctioning Zukowski by either entering a default judgment or allowing an adverse inference does not appear to be proportionate to the circumstances presented to this Court. Zukowski will be providing an affidavit regarding his production relating to Diane Ellaborn and Dr. Beck, and the Ousterhout Parties were (or will be) able to obtain discovery pertaining to the draft declarations through deposition testimony. Accordingly, this Court recommends that the District Court deny the Ousterhout Parties' motion to the extent that they seek entry of default judgment or an adverse inference (at trial). The Court also recommends that the District Court deny their request for fees and costs incurred for bringing their motion.

*6 For the reasons stated above, we respectfully recommend that the District Court order the following with respect to the Ousterhout Parties' motion:

Ousterhout and Coluccio's motion is granted in part and denied in part. Within 30 days after entry of this order: the parties are directed to provide each other with ESI search terms and protocols and an affirmation that responsive documents have been produced; Zukowski is directed to identify complete email chains (or an affidavit explaining why it cannot be done); the Ousterhout Parties may issue 10 interrogatories, including subparts, regarding Zukowski's “hacked” email account; and Zukowski is directed to review his records and provide an affidavit indicating that all documents pertaining to Diane Ellaborn and Dr. Joel Beck have been produced. The Ousterhout Parties' motion pertaining to production of documents relating to “witnesses and potential witnesses” is denied. Further, to the extent that the Ousterhout Parties seek fees and costs, that request is denied. In addition, the Ousterhout Parties' motion for sanctions is denied. Finally, based on the number of discovery motions filed in this case, the parties have demonstrated an unwillingness to work together to resolve discovery disputes. The parties are admonished that further discovery motion practice will be viewed with disfavor and may result in sanctions, including fees and costs.

Specific written objections to this Report and Recommendation may be served and filed within 14 days from the date that this order is served. FED. R. CIV. P. 72. Failure to file objections with the District Court within the specified time will result in a waiver of the right to appeal all findings, factual and legal, made by this Court in the Report and Recommendation. Lorentzen v. Anderson Pest Control, 64 F.3d 327, 330 (7th Cir. 1995).

At the time that the Ousterhout Parties filed their motion, the discovery cutoff date was March 31, 2016. On March 15, the parties filed a joint motion to extend the cutoff. (Dkt. 373.) The District Court granted the motion and extended the cutoff to November 30, 2016. (Dkt. 375.) The District Court indicated that the November cutoff is the final extension. (Id.)

On January 19, 2016, the Ousterhout Parties provided Zukowski with ESI search terms they used to conduct a search.

On May 1, 2013, the District Court stayed deposition discovery pending ruling on a motion to dismiss. (Dkt. 179.) However, the order should not have affected the parties' ability to conduct written discovery.

Zukowski has not argued that drafts of the declarations or communications are protected from production under the work product doctrine under Rule 26 of the Federal Rules of Civil Procedure. See e.g., Domingo v. Donahoe, No. C–11–05333CRB (EDL), 2013 WL 4040091, at *7 (N.D. Cal. August 4, 2013) (denying motion to compel production of a draft of a declaration); Business Integration Svcs. Inc. v. AT&T Corp., No. 06 Civ. 1863(JGK)(MHD), 2007 WL 2454107, at *1-2 (S.D.N.Y. August 21, 2007) (vacated on other grounds) (denying motion to compel production of drafts of an affidavit of a non-party on the basis that the drafts were protected attorney work product).