Coleman v. State
Coleman v. State
2021 WL 4242465 (N.D. Ill. 2021)
April 30, 2021
Fuentes, Gabriel A., United States Magistrate Judge
Summary
The court partially granted the plaintiff's motion to compel the defendants to respond to certain interrogatories and document requests. The court also ordered the defendants to produce a privilege log and to search for ESI using the terms proposed by the defendants in November 2020. The defendants must comply with the court's order by May 14, 2021.
Additional Decisions
PERCY COLEMAN, Plaintiff,
v.
STATE OF ILLINOIS, et al., Defendants
v.
STATE OF ILLINOIS, et al., Defendants
Case No. 19 C 3789
United States District Court, N.D. Illinois, Eastern Division
Filed April 30, 2021
Counsel
Lisa Ann Wesolowski, Luke A. Casson, Oscar Stephane Kpota, Andreou & Casson, Ltd., Chicago, IL, for Plaintiff.Abigail Rose Durkin, Abigail E. DeHart, Office of the Illinois Attorney General, Chicago, IL, for Defendant State of Illinois.
Abigail Rose Durkin, Abigail E. DeHart, Andrew James O'Donnell, Office of the Illinois Attorney General, Chicago, IL, for Defendants Illinois Department of Corrections, John Baldwin, Jason Garnett, Deon Dixon, Thomas Hilliard.
Fuentes, Gabriel A., United States Magistrate Judge
PERCY COLEMAN, Plaintiff, v. STATE OF ILLINOIS, et al., Defendants
*1 This matter coming before the Court on referral for discovery supervision (D.E. 65), and plaintiff having filed a motion to compel written discovery responses (“Mot.”; D.E. 106), the Court partially grants and partially denies the motion for the reasons stated below.
INTRODUCTION
As a prefatory note, the Court wishes to clarify a few points. On March 26, 2021, in extending fact discovery to June 29, 2021, the Court set a deadline of April 7, 2021 for the filing of motions to compel “on the written discovery.” (D.E. 101.) The Court's intention was to set a filing deadline for motions to compel sufficiently in advance of the tail end of the discovery period so that motion practice did not cause a further delay. The Court also had some concerns that completion of discovery in this case might require additional judicial management – thus the deadline in the March 26 order for service of plaintiff's deposition notice. When the parties needed some flexibility on that deadline, the Court gave it to them, extending the deadline an additional two weeks and suggesting that the parties avoid needless motion practice. (D.E. 103.) The Court's stated purpose was that the discovery not “bog down and result in motion practice” over issues that ought not to generate motions, such as whether a deponent would agree to appear for a deposition early enough in the day to ensure the deposition's completion by the end of that day. (Id.)
The parties exchanged written discovery requests and responses in this case in the latter half of 2020, and the Court previously resolved a defense motion to compel (D.E. 80) by partially granting it on December 23, 2020. (D.E. 91.) No motion to compel from plaintiff was before the Court at that time. In fact, the parties reported to the Court that defendant Illinois Department of Corrections (“IDOC”) had provided its discovery responses to plaintiff on August 31, 2020, nearly eight months ago. (D.E. 73.) They reported in their joint motion for a discovery extension (filed on March 25, 2021) that “[t]he Parties have completed written discovery.” (D.E. 100.) Plaintiff now represents that 16 days before he joined in that motion, he had received “what is believed to be” the defendants' last supplemental document production. Mot. ¶ 9. Plaintiff further asserts that his reasons for joining in the March 25 extension motion included “allow[ing] Plaintiff to finish its review of the responses and documents produced and to allow all parties time to depose the witnesses.” Id. ¶ 10.
The joint extension motion said plaintiff had a new attorney on the case who needed time “to review the materials in anticipation of oral discovery.” (D.E. 100 ¶ 6.) Otherwise, the extension motion referred only to the oral depositions, i.e., the difficulty in reaching plaintiff to schedule his deposition and plaintiff's need for time to complete the depositions of witnesses Garnett, Hilliard, Dixon, and Baldwin, along with “other individuals” whom plaintiff thought he might identify as relevant deponents during his review of defendants' “disclosures.” Id. ¶¶ 4-5. A fair reading of the extension motion reveals that plaintiff did not include in it any hint that he needed time to review the “completed” written discovery so that he could initiate motion practice.
*2 Nonetheless, the Court allowed motions to compel “on the written discovery” to be filed by April 7. (D.E. 101.) Plaintiff filed on April 16, nine days late.
Defendants contend that the motion should be denied because it comes too late in the discovery period: “Plaintiff waited 8 months after Defendants provided their written discovery responses to now contend that such responses are deficient, and waited 5 months to protest the ESI search parameters he failed to provide input on.” Defendants' Response to Plaintiff's Motion to Compel (“Resp.”; D.E. 110) at 5. Plaintiff argues that defendants' untimeliness argument is unfounded because defendant IDOC has been producing documents on a rolling basis, and defendants “knew that this Court allowed the parties time to review the written discovery, and granted an extension to file a motion to compel addressing deficiencies found in Defendants' responses.” Mot. ¶ 48. However, the bulk of plaintiff's complaints concerns the responses and objections defendants served in August 2020, and with the possible exception of Document Request No. 26, plaintiff's motion is decided without reference to defendants' rolling production of ESI discovery culminating on March 9.
DISCUSSION
I. The Court Will Not Deny The Motion Out of Hand As Untimely.
Both sides' arguments have merit as to the timeliness or untimeliness of this motion, which the Court considers under Rule 26(b)(1) proportionality. The rules do not place a prescribed time limit on the outside date for filing a motion to compel discovery, leaving the question of timeliness within “the broad discretion of the district court to control discovery.” Baxter Int'l, Inc. v. AXA Versicherung, 320 F.R.D. 158, 167 (N.D. Ill. 2017). Here, plaintiff filed the motion more than two months before the close of fact discovery, a factor weighing against denial of the motion as untimely. Id. Moreover, defendants must specifically demonstrate the burden that the discovery's untimeliness would impose, id. at 166, and they largely have not done so. Resp., passim.
The Court did, after all, permit motions to compel “on the written discovery” through April 7, 2021. The Court intended this motion deadline as sort of a catch-all for discovery disputes, to get them resolved far enough in advance of the discovery cutoff to avoid another slowdown near the end of the discovery period. The Court did not mean to suggest that parties ought to raise discovery issues that were eight months old, but having allowed motions “on the written discovery,” the Court will not now tell the parties to expect that the Court meant something other than what it said. See Mike Royko, Boss: Richard J. Daley of Chicago 165 (quoting mayoral press aide Earl Bush on news reporting about the mayor's 1968 “shoot to kill” order: “They should have printed what he meant, not what he said.”) (Dutton 1971).
As for plaintiff being nine days late in filing the motion, the Court will grant leave sua sponte to file the motion on April 16 and have it heard, in the Court's discretion and in the interest of justice. Jones v. City of Elkhart, Ind., 737 F.3d 1107, 1115 (7th Cir. 2013); Fed. R. Civ. P. 1. The Court will not deny the motion in its entirety as untimely considering all the circumstances. Nonetheless, the Court will continue to consider the current late stage of discovery as a factor bearing upon whether compelled supplemental responses individual discovery requests are now proportional to the needs of the case under Rule 26(b)(1).
II. The Motion Is Denied As To Revisiting ESI Discovery, Except for Document Request No. 26.
*3 The motion relates that in the Local Rule 37.2 discovery correspondence on April 15, 2021, plaintiff's counsel asked defense counsel “whether they could agree to search terms,” whereupon defense counsel responded that in November 2020, defendants proposed the search terms for electronically stored information (“ESI”) and told plaintiff that if plaintiff did not object, defendants would move forward with the search, using those terms. Mot. ¶¶ 24-27. Defense counsel added: “We followed up multiple times on this correspondence. Plaintiff never raised an objection, and Defendants accordingly moved forward. The search produced thousands of relevant documents which were produced to Plaintiff on a rolling basis, concluding in February.” Id. ¶ 27.
Moreover, plaintiff's motion itself never specifically raises the question of ESI or the insufficiency of any search terms. It simply concludes with a request to compel defendants to answer Interrogatory Nos. 1, 9, 12, 14, 15, 17, 18, and 24, and to respond to Document Requests No. 10, 15, 16, 17, 18, and 19-26. Id. at 10. At one point, the Motion mentions that plaintiff expected more from the ESI search and production, id. ¶¶ 43-45, but other than with respect to Document Request No. 26 discussed further below, the Court simply does not see, in the motion, a cogently presented argument for judicial relief directed at the ESI production or the search terms. See Pelfresne v. Village of Williams Bay, 917 F.2d 1017, 1023 (7th Cir. 1990) (“A litigant who fails to press a point by supporting it with pertinent authority, or by showing why it is sound ... forfeits the point.”). Therefore, no relief in this respect is granted except as to Request No. 26 discussed below.
III. The Motion Is Denied as to Interrogatory Nos. 12, 17 and 18.
Interrogatory No. 12 contains 20 subparts asking for personal information about employees in a particular unit of the IDOC from 2017 to the present, including their names, aliases, sex, race, age, date of birth, Social Security number, addresses, phone numbers, and so on. Defendants contend that Interrogatory No. 12 should be counted as multiple interrogatories, so that defendants need not answer Interrogatory Nos. 17 and 18 because plaintiff had in effect reached his interrogatory limit. Resp. at 8-9. Interrogatory subparts are not considered separate interrogatories if the subparts are devoted to single sets of information or themes. See Jacks v. DirectSat USA, LLC, No. 10 C 1707, 2011 WL 382858, at *2 (N.D. Ill. Feb. 1, 2011). This is a discretionary call for the Court.
Most of the 20 subparts to Interrogatory No. 12 are on the same subject and thus are not separate interrogatories. A few subparts pertain less clearly to the same general topic or theme, but the Court gives plaintiff the benefit of the doubt, and finds only two subparts ought to count as separate interrogatories: (1) the request for each of the employees' disciplinary actions, and (2) the request for each employee's investigation, inquiry, interrogation, or gathering of evidence. Plaintiff posed 25 interrogatories, so the two subparts bumped plaintiff over the limit, and defendants' objection to Interrogatory Nos. 17 and 18 is sustained. The Motion is denied as to Interrogatory Nos. 17 and 18.
As for the overbreadth and burden issues associated with Interrogatory No. 12 itself, the Court has great difficulty seeing how a listing of all of these employees, without respect to whether any had been the subject of any misconduct complaint, would be relevant to claims or defenses in the case, particularly given that defendants are being ordered to respond to Interrogatory Nos. 1 and 9, as described below. The Court also considered the burden involved in IDOC finding all of Interrogatory No. 12's requested information over a three-to four-year period. Plaintiff argues that he was willing to “confer and agree on certain dates or information to limit the request,” Mot. ¶ 41, but we are nearing the end of discovery, and the time for more negotiation about the scope of this request has come and gone. Again, if plaintiff had not waited eight months to file his motion to compel or to initiate Rule 37.2 discussions, the outcome might be different. In any event, the Motion is denied as to Interrogatory No. 12.
IV. The Motion Is Partially Granted As To Interrogatory Nos. 1 and 9 and Denied As To Interrogatory Nos. 14, 15 and 24.
*4 Next, the Motion's specific arguments as to the remaining interrogatories at issue are difficult to decipher. Doing the best it can to divine plaintiff's arguments, the Court rules as follows:
Interrogatory No. 1: Defendants are ordered to respond to this interrogatory insofar as it concerns claims and affirmative defenses still in the case after the district court's ruling on the motion to dismiss. (D.E. 76). Asking an adversary to identify the persons with knowledge of the alleged facts is a standard interrogatory. Moreover, at this stage of discovery, defendants ought to know which persons have knowledge of the relevant facts, so answering this interrogatory now is not unduly burdensome. Defendants also should know that because this interrogatory is governed by Rule 26(b)(1), they are not being required to identify, as they contend, “every conceivable past and present IDOC employee who has knowledge that Plaintiff has been employed since 2000, and to identify what information they know about Plaintiff and each and every allegation in his Amended Complaint.” See Resp. at 8. That may be what the interrogatory requested, but the Court, in its power to manage discovery, is not construing the interrogatory as broadly as it is stated. See Boss at 165. Identification of persons with knowledge about whether defendants did or did not retaliate or discriminate against plaintiff or other IDOC supervisors by reason of their union organizing activities, race or age is sufficient. The Motion is granted as to Interrogatory No. 1 with the limitations as stated herein.
Interrogatory No. 9: This interrogatory asks for all complaints made to defendants or their agents about “the conduct of any IDOC employee” and as such is overbroad, disproportional to the needs of the case and not directed at evidence relevant to a claim or defense in the case. Fed. R. Civ. P. 26(b)(1). Defendants are ordered to answer this interrogatory only as it concerns plaintiff's workplace – the Halsted office of the IDOC Parole Division, District 1 – and not the entire agency, and for the time frame of January 1, 2017 through December 31, 2018. The Court imposes these limitations in the interest of proportionality to lessen defendants' burden of unearthing the information at this late stage of the discovery process. See Fed. R. Civ. P. 26(b)(1). Perhaps if plaintiff had raised the issue sooner, the Court might demand more, but plaintiff's argument that he is entitled to “other complaints” of race or other discrimination (Mot. ¶ 40) is insufficient to require defendants to do more now. The Motion is granted as to Interrogatory No. 9 with the limitations as stated herein.
Interrogatory No. 14: Interrogatory No. 14 is not discussed or argued in any detail in the Motion, Mot. ¶ 32, so the Motion is denied as to that Interrogatory. See Pelfresne, 917 F.2d at 1023.
Interrogatory No. 15: This interrogatory seeks a listing of “all governmental charges, complaints, inquiries, and/or investigations” of discrimination or constitutional violations, without limitation as to the subjects of those charges or inquiries, for the period of January 2016 through the present. This is patently overbroad and gives defendants virtually no parameters for their search of information with respect to persons or investigating agencies. That said, defendants undertook to perform an ESI search to produce “relevant and responsive ESI” upon the parties' agreement on search terms. Resp. at 6. Plaintiff complains that documents that might have helped answer this interrogatory ultimately were not produced. Mot. ¶¶ 43-45. But the Court in its discretion will not compel a supplemental response to Interrogatory No. 15 at this late stage of the case. The Motion is denied as to Interrogatory No. 15.
*5 Interrogatory No. 24: Interrogatory No. 24 is not discussed or argued in any detail in the Motion, Mot. ¶ 32, so the Motion is denied as to that Interrogatory. See Pelfresne, 917 F.2d at 1023.
V. The Motion Is Partially Granted As To Document Request Nos. 15, 21 and 26 and Denied As To Document Request Nos. 10, 16 through 20, and 22 through 25.
Document Request No. 10: The request for a roster of all employees of IDOC in the Parole Division, District 1 is overbroad. The Motion is denied as to this request for the same reason it is denied as to Interrogatory No. 12. Defendants are being compelled to answer Interrogatory Nos. 1 and 9, and that is sufficient discovery as to other IDOC employees with knowledge within the scope of Rule 26(b)(1) in this particular unit at this phase of the case. Plaintiff's argument that this discovery is directed at identifying “potential witnesses” (Mot. ¶ 34) is insufficient to justify more.
Document Request No. 15: The request for the disciplinary files for all IDOC employees of the Parole Division, District 1 is granted but only as limited to disciplinary files (and including allegations of discrimination) concerning employees of the Halsted office (not limited to the p.m. shift) of the IDOC Parole Division, District 1 from January 1, 2017 through December 31, 2018. Plaintiff's argument that he is entitled to documentation supporting his allegation that he was treated differently than others (Mot. ¶ 35) makes no attempt to justify the greater breadth of discovery sought in the unedited Request No. 15.
Document Request No. 16: This parallel (to Request No. 15) request is for “database files” for “every instance of race discrimination” occurring without limitation as to time in the Parole Division, District 1. The Court does not know what “database files” means, and with Request No. 15 now covering discrimination allegations in disciplinary files at the Halsted office, the Motion is denied as to Request No. 16.
Document Request Nos. 17, 18: Plaintiff's argument for the relevance of the requested documents about discipline of executive board members of AFSCME Council 31, Local 3426 says little more than that plaintiff claims “retaliation because of his participation in a union.” Mot. ¶ 36. This is not sufficient to justify this broad a venture into discovery about disciplinary matters concerning union executives, and plaintiff already will receive significant discovery he seeks with respect to communications about plans to take adverse actions against him and other IDOC employees based on their union activities, through Document Request No. 26 discussed below. The Motion is denied as to Request Nos. 17 and 18.
Document Request Nos. 19-26: As to his Request Nos. 19-26, plaintiff argues that defendants should respond to them because the “Labor and Employment Advocacy Division” (referred to in Request No. 19 and in the Motion as “LEAD”) “was integral in the agencies [sic] effort [to] arbitrarily discipline AFSCME Local 3436 members and singularly target Plaintiff, the president of the local union.” Mot. ¶ 37. As razor-thin as this and virtually all of plaintiff's other arguments were with respect to the discovery requests at issue, the Court needed to examine each request individually because plaintiff's blanket characterization did not apply to all of them:
*6 (a) Nos. 19, 20: It is difficult for the Court to compel compliance with this request when defendants assert that they have no idea what “LEAD” is, and that they do not possess any responsive information they could produce. Resp. at 13-14. Defendants have responded to these document requests and have said they have nothing to produce, so the Motion is denied as to Request Nos. 19 and 20.
(b) No. 21: This request is aimed at copies of a very specific, quoted statement in which former Illinois Gov. Rauner is said to have referred to AFSCME as “Afscammy.” To the extent defendants themselves possess any copies of this statement, they are ordered to produce them, and the Motion is granted as to Request No. 21.
(c) Nos. 22-25: These requests seek communications between certain identified persons (Richard Goldberg, Rodger Heaton, and Kristina Rasmussen) and “any agency directors, legislative leaders, and political operatives” relating to the implementation of the goals of LEAD from January 19, 2015 to January 18, 2019 (Nos. 22-24), and from or to the Illinois governor's office and an advocacy group called the Illinois Policy Institute on the same matter and time frame (No. 25). The Court reviewed the responses in which defendants said they are “unaware of any information that exists” and are “unfamiliar with LEAD,” and the Motion is denied as to Request Nos. 22-25 for the same reason as it is denied as to Request Nos. 19-20.
(d) No. 26: This request wants “[a]ll communications to and from John Baldwin and the Office of the Governor, Chris Higgerson, or Natasha Jenkins.” Baldwin is a defendant in the case and is said to be (or to have been) the acting director of IDOC. Complaint (D.E. 1) ¶ 14.) Higgerson and Jenkins are non-parties who, plaintiff has said in the past, were tasked by IDOC to develop “management rights restoration” plans including steps to remove corrections officials who the then-governor purportedly believed had unionized unlawfully. See Memorandum Opinion and Order (D.E. 71) at 3. Defendants protest that after plaintiff did not take issue with defendants' ESI search terms, it is now too late to force defendants to produce this information. Resp. at 15. The Court views plaintiff's request as hopelessly overbroad, but it will grant the Motion as to Request No. 26 limited to communications defendants possess between and among these three named individuals and the governor's office relating to any plan or effort to take any adverse action against plaintiff Percy Coleman, or any IDOC supervisor, by reason of their involvement in union activity. The Court appreciates that a further ESI search may be necessary, but honestly, the request as modified is directed at plainly relevant information, and if defendants possess such responsive, non-privileged documents, they must produce them.
One final note on Request Nos. 19-20 and 22-25: The Court notes that the “A” in LEAD as described in the Motion and the requests stands for “Advocacy.” Mot. ¶ 37. In earlier motion practice, defendants objected to certain deposition subpoenas seeking communications concerning the “Labor and Employment Advisory Division” of the AFSCME Local 3436 and the IDOC. Motion for a Protective Order (D.E. 62) ¶ 8. In their earlier motion, defendants did not assert that they did not know what the Labor and Employment Advisory Division was. Id. If in fact plaintiff said “Advocacy” but meant “Advisory,” see Boss at 165, and if in fact defendants know full well what plaintiff meant, so that the “LEAD” in question is not a mystery to defendants, the Court would look at defendants' objections to these documents in a different light. Counsel for the parties are directed to confer on that issue, and defendants are directed to revise their objections, if they determine in good faith that they need to do so, and advise the Court through a status report filed by noon on May 14, 2021 about any revised objections to Request Nos. 19-20 and 22-25.
VI. Defendants Must Produce a Privilege Log If They Have Not Done So Already.
*7 Defendants assert that they agreed to provide a privilege log, but only if they concluded that a log was “necessary,” and defense counsel now believes the log is not necessary. Resp. at 15. That was too facile for the Court's liking, given that Rule 26(b)(5)(A) requires parties to expressly make their privilege claims as to documents they withhold on grounds of privilege, so that their adversary may assess the privilege claims. Also, defendants did not argue that producing a privilege log is excessively burdensome. Further, defendants' response to the Motion suggests some confusion about whether defendants can now confirm that they have or have not produced a privilege log. Id. at 15 n.3. If defendants have not produced a privilege log, they must do so in 14 days.
CONCLUSION
For the foregoing reasons, plaintiff's motion to compel (D.E. 106) is partially granted and partially denied. Defendants are ordered to serve responses or supplemental responses to Interrogatory Nos. 1 (as to claims and affirmative defenses still in the case), and 9 (as concerns the Halsted office of the IDOC Parole Division, District 1 for the time frame of January 1, 2017 and December 31, 2018), and Document Request Nos. 15 (as concerns the Halsted office of the IDOC Parole Division, District 1 for the time frame of January 1, 2017, and December 31, 2018 for disciplinary files and discrimination claims), 21, and 26 (as concerns any plan or effort to take any adverse action against plaintiff Percy Coleman, or any other IDOC supervisor, by reason of their involvement in union activity). The Motion is denied as to all other discovery requests mentioned in the Motion. Defendants are to comply with this order by serving their supplemental responses, and any accompanying supplemental responsive documents, and their privilege log, on plaintiff's counsel by 5 p.m. May 14, 2021. The parties are directed to confer and to report by noon on May 14 as directed above concerning Request Nos. 19-20 and 22-25. A joint written status report on the progress of discovery is due by noon on May 28, 2021.
SO ORDERED.
ENTER: