Livingston v. City of Chicago
Livingston v. City of Chicago
No. 16 CV 10156 (N.D. Ill. 2019)
July 24, 2019

Kim, Young B.,  United States Magistrate Judge

Failure to Produce
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Summary
The court granted the Plaintiffs' motion to resolve discovery disputes over the production of disparate impact evidence, requiring the City of Chicago to produce documents (both ESI and non-ESI) responsive to the requests if the City considered less discriminatory alternatives to the Subject Tests. The court also required the City to produce documents reflecting different versions of the Subject Tests from the time they were being developed until August 3, 2016. The court sustained the City's scope and relevance objections for document request Nos. 12, 15, 16, 20, 31, and 45.
Additional Decisions
JENNIFER LIVINGSTON, et al., Plaintiffs,
v.
THE CITY OF CHICAGO, Defendant
No. 16 CV 10156
United States District Court, N.D. Illinois, Eastern Division
Signed July 24, 2019
Kim, Young B., United States Magistrate Judge

ORDER

Before the court is Plaintiffs’ motion to resolve discovery disputes over the production of disparate impact evidence. In the motion, Plaintiffs seek to have the City of Chicago (the “City”) produce documents (ESI and non-ESI) responsive to their document request Nos. 6, 7, 9-13, 15, 16, 19-21, 31, 45, and 47. While the court generally agrees with the City that the motion appears to be premature in that the City has not completed its document production, a ruling on the motion would be helpful to move this 2016 case forward because the City has posed objections based on relevance, burden of production, and scope, and has noted that it is withholding responsive documents based on its objections. The City also argues that many of the requests identified in this motion should be reserved for expert discovery. The court disagrees. Plaintiffs are entitled to secure documents that were in existence prior to the filing of this action. In fact, the experts in this case must rely on information the parties exchange during fact discovery to render opinions. For the following reasons, the motion is granted as to document request Nos. 6, 7, 9-11, 13, 19, 21, and 47, and denied as to document request Nos. 12, 15, 16, 20, 31, and 45: 

Request No. Ruling 

6 The motion is granted. According to Plaintiffs, the Excel spreadsheets are not useful because they do not include any information on the sex of the candidates identified. The City opposes the motion and explains that the spreadsheets include adequate information for Plaintiffs to determine the sex of each candidate. The court is unable to resolve whether the spreadsheets reflect enough information to identify the test results for each candidate and candidate’s sex because neither side attached the spreadsheets to the motion. Nonetheless, if the spreadsheets are summaries of the results gathered from test scores or scoring sheets, Plaintiffs are entitled to the underlying documents used to generate the summary spreadsheets. If these underlying documents are categorized and maintained by each test, the City is only required to produce just those documents pertaining to the “Lifting and Moving Sequence” and “Step” tests (together “Subject Tests”). 

7 The motion is granted only as to the Subject Tests. The City is required to produce documents reflecting different versions of the Subject Tests which were considered for implementation or implemented from the time the Subject Tests were being developed until August 3, 2016. 

9, 10 & 13 The motion is granted. If the City had inquired into the validity of the Subject Tests to be incorporated into the testing requirements, the City must produce them or respond that it has none. The City must reach back to the time before the Subject Tests were administered in 2008 in order to ensure that it has conducted a reasonable inquiry to respond to these requests. The City is not required to produce any information it has generated for purposes of defending against this action. The responsive documents are those documents that would have been in existence prior to the filing of the lawsuit on October 28, 2016. 

11 The motion is granted. 

12 & 15 The motion is denied. The court finds that the information sought by these requests is not relevant. The claims in this case pertain to the Subject Tests Plaintiffs had to pass, not exercises they had to perform during their training in 2014 and 2015. 

16, 20, 31 & 45 The motion is denied. The court sustains the City’s scope and relevance objections. 

19 The motion is granted. The thrust of this request is whether the City has any documents reflecting the impact of the Subject Tests on female candidates in terms of hiring of and/or graduating female candidates. The City is not required to produce any information it has generated for purposes of defending against this action. The responsive documents are those documents that would have been generated prior to the filing of the lawsuit on October 28, 2016. 

21 The motion is granted. This is a simple request. Plaintiffs are asking for documents the City considers to be relevant to determining whether the Subject Tests had any adverse or disparate impact on female candidates. If the City finds that it has none, it should state so. 

47 The motion is granted. The City is required to produce documents responsive to this request if the City considered less discriminatory alternatives to the Subject Tests. If it has none, the City should state so.