*1 Written Opinion by Magistrate Judge Michael T. Mason: For the reasons set forth below, plaintiff's motion to strike defendant Loyola University Medical Center's objections and compel discovery responses [187] is granted in part and denied in part. Additionally, plaintiff's motion to modify the scheduling order and for leave to serve a supplemental discovery request [193] is denied. All documents ordered to be produced are discussed in further detail below and are to be produced by 2/29/16. The status hearing scheduled for 2/10/16 is stricken and rescheduled for 3/3/16 at 9:00 a.m.

Plaintiff Mark McDaniel, M.D. (“McDaniel” or “plaintiff”), a veteran, initiated this action against Loyola University Medical Center (“LUMC”), Loyola University of Chicago, CHE Trinity, Inc., Dr. William Hopkinson, Dr. Terry Light, Dr. William Cannon, and Dr. Alexander Ghanayem (collectively “defendants”), alleging he was wrongfully terminated from LUMC's five-year orthopaedic residency program and exposed to a hostile work environment in violation of the Uniformed Services Employment and Reemployment Rights Act (“USERRA”) and his employment contract. According to plaintiff, his relationship with defendants turned sour towards the end of his fourth year of residency when he requested leave for three weeks of Air National Guard obligations as well as a separate ten-day medical leave. Plaintiff further claims that even before the requested leave, attending physicians at LUMC subverted his efforts to receive a fellowship position upon completion of his residency. Plaintiff was terminated from the residency program on September 17, 2012. For their part, defendants contend that misrepresentations in plaintiff's surgical case logs, his poor attendance, and his lack of professionalism were the factors that lead to his termination.

On December 7, 2015, plaintiff filed a motion to strike LUMC's objections and compel discovery responses (“motion to compel”) [187]. On December 18, plaintiff filed a motion to modify scheduling order and for leave to serve a supplemental discovery request (“motion to modify”) [193]. Both motions contain references to similar discovery matters; therefore the Court addresses both in this written opinion.

In plaintiff's motion [187] and reply [205], plaintiff seeks the production of document requests nos. 10 and 12 in his third document request and no. 1 in his fourth document request. The document requests are as follows:

(Dkt. 202 at Exs. 1 and 6.)[2]

LUMC produced case logs and personnel files for the four residents in plaintiff's residency class: Drs. Schiff, Salazar, Beck, and Larsen. Plaintiff seeks the case logs of the remaining two individuals, Drs. Wojewnik and Sylvester, and personnel files for 40 individuals in different residency classes. According to plaintiff, the requests for information on residents outside of plaintiff's class are necessary because their residency periods overlapped and he considers them similarly situated under USERRA. Given that they are similarly situated, plaintiff argues that they are relevant to his wrongful termination claims. Plaintiff also asserts that his request for patient notes is narrowly tailored to support his claims that he was involved in certain procedures and provided quality patient care. Moreover, plaintiff claims that his request for medical records is subject to the protection of the confidentiality order.

LUMC responds [202] that plaintiff's requests are overbroad, unduly burdensome, and not reasonably calculated to lead to the discovery of admissible evidence. It is LUMC's position that the residents outside of plaintiff's residency class are not similarly situated and that plaintiff does not even allege that other similarly situated residents were treated more favorably than him. LUMC also objects to producing the patient case files to the extent the request seeks personal and/or confidential information relating to non-parties.

Legal Standard

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.” “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.

Case Logs/Resident Files

At issue for purposes of this motion are the case logs for two other individuals listed in request number 10 (Tom Sylvester and Bart Wojewnik) and the employment contracts, appointment documents, and personnel files (collectively “personnel files”) for 40 other LUMC residents whose residency period overlapped with plaintiff.[3] According to plaintiff, the residents outside of the class are similarly-situated individuals under the USERRA because they shared the same supervising physicians, had similar standards, and engaged in similar tasks. Therefore, he argues that their case logs and personnel files are relevant and “necessary to determine whether other residents were not terminated from the program despite being cited for compliance issues.” (Dkt. 187 at 6.) Further, plaintiff argues that LUMC can designate certain employee documents as confidential if they fall within the protective order.

*3 It is LUMC's position that plaintiff's USERRA claims for retaliation and hostile work environment do not entitle him to comparator evidence. Specifically, LUMC asserts that plaintiff never makes the argument that anyone “similarly situated” to plaintiff was treated more favorably, only that defendants' statements and actions demonstrate that plaintiff's military service was a motivating factor for the defendants. Plaintiff does allege that LUMC relied on case logs in its probation and termination decisions, but LUMC argues that this allegation relates to his breach of contract claim and does not entitle plaintiff to comparator evidence. Further, LUMC maintains that it has already produced the personnel files and case logs for plaintiff's residency class, who are the only residents that could be argued to be similarly situated. LUMC claims that each residency class has different responsibilities and rotations and was treated as a distinct educational cohort. Additionally, LUMC argues that the case log program plaintiff alleged to be using did not even go into effect until 2012; therefore, the individuals in classes dating back to 2009 are not comparators.

Similarly situated individuals need not be identical in every conceivable way, but they have to be directly comparable to the plaintiff in all material respects. Coleman v. Donahoe, 667 F.3d 835, 846 (7th Cir. 2012) (citing Patterson v. Indiana Newspapers, Inc., 589 F.3d 357, 365-66 (7th Cir. 2009)). Generally, “a plaintiff must at least show that the comparators (1) ‘dealt with the same supervisor,’ (2) ‘were subject to the same standards,’ and (3) ‘engaged in similar conduct without such differentiating or mitigating circumstances as would distinguish their conduct or the employer's treatment of them.’ ” Coleman, 667 F.3d at 847 (quoting Gates v. Caterpillar, Inc., 513 F.3d 680, 690 (7th Cir. 2008)). The “same standards” factor depends on the specific facts of the case. Coleman, 667 F.3d at 849. In order to assess whether employees engaged in similar misconduct, “the critical question is whether they have engaged in conduct of comparable seriousness.” Id. at 850 (quoting Peirick v. Indiana University-Purdue University Indianapolis, 510 F.3d 681, 689 (7th Cir. 2007)). Conduct of comparable seriousness can be shown by establishing a violation of the same company rule or conduct of a similar nature. Peirick, 510 F.3d at 689. Moreover, “the comparators must be similar enough that differences in their treatment cannot be explained by other variables, such as distinctions in their roles or performance histories.” Senske v. Sybase, Inc., 588 F.3d 501, 510 (7th Cir. 2009).

Plaintiff was placed on probation because his “professionalism and communication/interpersonal skills [were] not at the level expected of a PGY-4 resident.” (Dkt. 30, Ex. 3.) His September 2012 termination letter noted that he was “slightly behind his peers in both knowledge and surgical skills;” he did not participate in surgical cases with Dr. Pinzur; he had three unexplained absences; he disregarded instructions to not include non-orthopaedic procedures in his case log; and he included procedures in his case log that did not take place. (Id. at Ex. 4.) According to the program director at LUMC, plaintiff was terminated for “unprofessional and unethical behavior, failure to demonstrate substantial improvement while on academic probation, being absent from a duty assignment without department consent, and falsifying surgical logs.” (Id.)

Here, plaintiff asserts that all individuals whose residency overlapped with his were similarly situated for the purposes of his lawsuit. He argues that the case logs and personnel files are relevant to his claim that he was treated differently than other residents, yet his argument does not address why employment contacts/agreements, appointment documents, and all personnel files for a nine year period of time are all potentially relevant. The claims and defenses in this case relate to plaintiff's attendance, case logs, and performance. There is no indication that such claims and defenses warrant the production of every document in a resident's file. Additionally, plaintiff fails to acknowledge that a majority of the explanation given for his termination was his performance and attitude. Aside from stating that compliance issues may be contained in the personnel files, he does not establish how the personnel files will address any performance and attitude issues of the other residents.

*4 Moreover, as LUMC argues, plaintiff does not allege that other residents behaved similarly and received different treatment. There is no assertion that other residents falsified case logs or had poor attendance and were not placed on probation and/or terminated. Further, there is no evidence that any of the 40 individuals engaged in conduct of comparable seriousness as the plaintiff or that the documents requested will reveal similar discrepancies with plaintiff's termination. Allegations that employees involved in acts of comparable seriousness received more favorable treatment is sufficient to plead a case of discrimination. Coleman, 667 F.3d at 850. Residents with similar deficiencies may be similarly situated for purposes of determining whether termination was selective in plaintiff's case. Plaintiff's motion, however, fails to establish that any other residents had similar deficiencies such that they could be argued to have received more favorable treatment. Presumably, plaintiff hopes that the discovery requested will reveal whether any other residents had similar conduct.

LUMC's argument that the request is a fishing expedition and is overly burdensome has some merit. Nonetheless, the Court acknowledges that plaintiff may be unable to provide evidence of any potential similar deficiencies without discovery from LUMC. For example, the case logs of the two additional residents may be relevant in assessing whether other residents included non-orthopaedic procedures in their case log reports. Accordingly, LUMC shall produce the case logs for Drs. Tom Sylvester and Bart Wojewnik for the years in which plaintiff was a resident at LUMC.

Plaintiff's request for personnel files of 40 individuals is overbroad as written. The request is based on the pretext that the records will demonstrate that other residents had similar deficiencies and were not terminated. Plaintiff, however, does not identify any types of documents that may further his claims other than a vague reference to compliance reports. There is no indication an employment contract or appointment document will address a resident's attendance or behavior nor is there any indication any of the individuals even conducted themselves in a similar manner as plaintiff.

Although plaintiff's request number 1 in his fourth request to produce is overly broad and seeks some irrelevant information, the Court finds that the request can be narrowed in order to determine if any relevant documents are available. To the extent such documents exist, LUMC is to produce information regarding any attendance and compliance citations for residents listed in request number 1 for the years in which plaintiff was a resident at LUMC.[4] LUMC shall also produce a corresponding privilege log to identify any redacted or privileged material. The documents, corresponding privilege log, and case logs for Drs. Sylvester and Wojewnik are to be produced by 2/29/16.

Patient Notes

Plaintiff asserts that his request for patient notes (Third Production Request Number 12) is relevant because defendants have argued that plaintiff was not present on days for certain procedures and that plaintiff's performance was dangerous.[5] He also argues that the termination letter mentioned that he was behind in his surgical skills and that his patient care was brought up in his 360° evaluation process. Further, it is his position that “technical problems as well as data entry errors” were the reasons behind the inconsistent logged cases, that the records “will show that the accusation of falsification of records is specious, and that the alleged errors for which [he] was terminated were instead widespread and known problems with the case log system.” (Dkt. 205 at 8-9.) He maintains that the patients' medical records are protected pursuant to the parties' Confidentiality Agreement (“Agreement”).

*5 According to LUMC, the request for patient notes is overly broad as it requests the patients' entire health history and all procedure notes, including procedures that plaintiff did not perform or in which he did not participate. LUMC maintains that plaintiff's own case logs do not reflect that the procedures were performed by him on some of the dates in question. Further, LUMC asserts that aside from the reference in the termination letter to plaintiff being slightly behind his peers in knowledge and surgical skills, he was never accused of rendering insufficient patient care or placed on probation or terminated for incompetent patient care. Thus, LUMC takes the position that patient records are irrelevant.

With respect to plaintiff's argument that the Agreement protects the patients, a review of the Agreement establishes that the Agreement is not a HIPPA protective order and does not contravene the nonparties' interest in confidentiality.[6] The reference within the Agreement to patients is the statement that confidential information includes “[a]ny information about or concerning, or which includes, contains, reflects, or refers in any way to patients of any party to the extent such information identifies patients.” (Dkt. 79 at 3.) Such language does not give either party the absolute right to disclose nonparty patient information. The language only allows parties to designate documents as confidential to the extent they include patient identification.

Here, plaintiff's request goes beyond patient identification and seeks detailed patient records in the hopes that they will demonstrate his involvement and/or the quality of the patient care he rendered. Aside from possibly identifying whether he was, in fact, involved in patient care, there is no evidence that the records will reveal the information he seeks. Therefore, plaintiff's request is overbroad and seeks irrelevant information.

Although plaintiff argues that his request is narrowly tailored because it covers 24 dates of service, it is not clear whether such records even address plaintiff's actual patient care. Moreover, plaintiff is not entitled to the production of sensitive material for numerous patients based on the assumption that “[d]efendants may rely on patient care as a reason for termination.” (Dkt. 205 at 8.) There is no indication that the medical records contain any references to the competency of plaintiff's medical treatment. Accordingly, the Court finds that plaintiff fails to establish that his interest in this request supersedes the interest of nonparties in the protection of their medical records given the irrelevant and overly broad nature of the request.

While the request improperly seeks information for purposes of addressing plaintiff's performance, there is some validity to plaintiff's argument regarding case logs. LUMC argues that the case logs do not reflect plaintiff's participation in the procedures listed, which plaintiff argues is one of the specific issues he is trying to address. Given the extensive discovery already completed in this case, the Court questions how the parties have failed to address the case log inconsistencies alleged by plaintiff. Further, aside from establishing that plaintiff was involved in the patient care, plaintiff fails to demonstrate how the records will establish “widespread and known problems with the case log system.” (Dkt. 205 at 9.)

Nonetheless, there is an alleged disparity between which procedures plaintiff claims to have performed and what is reflected in the case logs. Therefore, to the extent the information is not available in another format, LUMC shall produce redacted procedure notes for the procedures identified in plaintiff's request number 12. The redacted notes should only include the date and description of the procedure, as well as the identification of physicians present for the procedure. If the same information is available in another format, LUMC may produce the information in the more convenient format. The request for additional patient medical records is denied.

*6 On December 18, 2015, plaintiff filed a motion to modify the scheduling order and to serve a supplemental discovery request [193]. Specifically, plaintiff seeks to supplement request number 10 of his third request to produce to add a request for the case logs of 20 residents whose residencies overlapped with plaintiff. The original request number 10 was served on May 1, 2015, and, as discussed above, sought the case logs for the four other residents in plaintiff's class and two additional residents. Written discovery closed on October 30, 2015. (Dkt. 167.)

In his motion, plaintiff contends that case logs for orthopaedic residents not in his class are considered similarly-situated in his USERRA discrimination case. Plaintiff asserts that he has been diligent in his discovery and “now has reason to believe that the residents senior to [him] had substantial deficiencies in their case logs.” (Dkt. 193 at 3.) He explains that he did not initially request the case logs in the interest of providing tailored discovery requests. Further, he argues that the supplemental request will not prejudice defendants.

Defendants respond [204] that extensive discovery has been completed in this case and plaintiff untimely brought the request seven weeks after the close of written discovery. They argue that plaintiff failed to demonstrate either good cause or excusable neglect in order to justify his requested discovery modification. It is also defendants' position that plaintiff is not entitled to the discovery because the residents outside of his class are not “similarly situated” and plaintiff does not even allege that other “similarly situated” individuals were treated more favorably than he.[7] Defendants further maintain that the request is irrelevant, unduly burdensome, overly broad, and not reasonably calculated to lead to the discovery of admissible evidence. Contrary to plaintiff's assertion, defendants opine that allowing the modification will prolong both oral and written discovery.

Federal Rule of Civil Procedure 16 dictates that “[a] schedule may be modified only for good cause and with the judge's consent.” FED. R. CIV. P. 16 (b)(4). The good cause requirement “means that the deadline could not be met despite the party's diligence.” Heckler & Koch, Inc. v. German Sport Guns GmbH, 976 F. Supp. 2d 1020, 1030 (S.D. Ind. 2013) (quoting Dowers v. Mize, No. 09 C 0270, 2010 WL 2694995, at *2 (S.D. Ind. July 2, 2010)). “When an act may or must be done within a specified time, the court may, for good cause, extend the time:... (B) on motion made after the time has expired if the party failed to act because of excusable neglect.” FED. R. CIV. P. 6(b)(1)(B); Brosted v. Unum Life Ins. Co. of Am., 421 F.3d 459, 463–64 (7th Cir. 2005) (affirming denial of extending written discovery where movant waited until one month after the close of discovery to file the motion and failed to claim excusable neglect for missing the deadline); see also Instant Technology, LLC v. DeFazio, No. 12 C 491, 2013 WL 2434614 (N.D. Ill. June 4, 2013) (denying request to extend discovery on motion brought almost two months after the close of discovery because party failed to demonstrate good cause or excusable neglect).

Whether a party's neglect was excusable is an equitable determination, “taking account of all relevant circumstances surrounding the party's omission.” Sebesta v. Davis, No. 12 C 7834, 2016 WL 232380, at *1 (N.D. Ill. Jan. 20, 2016) (quoting Pioneer Inv. Servs. Co. v. Brunswick Assocs. L.P., 507 U.S. 380, 395 (1993)); see also Flint v. City of Belvidere, 791 F.3d 764, 768 (7th Cir. 2015) (applying Pioneer's definition of “excusable neglect” to Civil Rule 6(b)(1)(B)). Relevant circumstances include “the danger of prejudice to the [non-movant], the length of the delay and its potential impact on judicial proceedings, the reason for the delay, including whether it was within the reasonable control of the movant, and whether the movant acted in good faith.” Pioneer, 507 U.S. at 395; see also Sebesta, 2016 WL 232380, at *1. It is generally not excusable to claim neglect when a movant should have acted before a deadline or when the movant's “diligence is to blame for its failure to secure discoverable information.” Flint, 791 F.3d at 768 (affirming denial of plaintiff's motion to reopen discovery one month after discovery had closed); see also Grayson v. O'Neill, 308 F.3d 808, 816 (7th Cir.2002).

*7 Here, plaintiff waited until seven weeks after written discovery had closed and did not even acknowledge that it was, in fact, closed. His motion states that “parties proposed that written discovery would be completed on October 30, 2015,” (dkt. 193 at 1), but he fails to acknowledge that Judge Dow actually ordered written discovery to close on October 30, 2015. (Dkt. 167.)

Further, plaintiff offers no good cause for reopening written discovery. He does not provide any support for his assertion that he “now has reason to believe” that residents in class years before his own had deficiencies in their case log. (Dkt. 193 at 3.) He previously sought case logs for certain residents in May 2015. Moreover, the residents in other classes were also already known to him based on his earlier request for their personnel files in his fourth request to produce. There is no indication that he became aware of any new information to warrant his subsequent desire to request additional case logs.

Plaintiff also fails to allege that excusable neglect is the reason for his delay in seeking to issue the discovery request. Instead, he claims that he did not seek this information earlier because he was trying to provide tailored discovery requests. Notably, based on the record before this Court, plaintiff had issued four separate sets of requests to produce to LUMC alone (totaling 66 individual document requests, plus sub-parts) (Dkt. 204 at 3) prior to seeking leave to serve this current request. As discussed above, one request sought additional information on 44 residents' personnel files. Accordingly, this Court finds that plaintiff's statement that he was trying to tailor discovery requests has little merit. Moreover, an alleged attempt to narrow discovery is not an excuse for withholding certain discovery requests until almost two months after discovery has been closed.

Additionally, contrary to plaintiff's claim, allowing the production of 20 additional case logs would prejudice defendants and their attempt to complete discovery in a timely manner. Oral fact discovery is scheduled to close on March 30, 2016. While this Court did allow some leniency with compelling the production of records of residents outside of plaintiff's residency class in its above ruling on plaintiff's motion to compel, those discovery requests were made when written discovery was still open.[8] Plaintiff has failed to establish good cause for creating further discovery delays. Therefore, the Court does not find that plaintiff has established sufficient “good cause” to warrant reopening written discovery and denies plaintiff's motion.

LUMC is to produce the case logs for Drs. Tom Sylvester and Bart Wojewnik for the years in which plaintiff was a resident at LUMC. To the extent such documents exist, LUMC is to produce information regarding attendance and any compliance citations for residents listed in request number 1 of plaintiff's fourth request to produce for the years in which plaintiff was a resident at LUMC. LUMC shall also produce a corresponding privilege log to identify any redacted or privileged material. Additionally, LUMC shall produce redacted procedure notes for the procedures identified in plaintiff's request number 12 containing only the date, procedure performed, and the identification of physicians present for the procedure. The documents and any corresponding privilege logs are to be produced by 2/29/16.

*8 Date: February 8, 2016

The request contains 24 entries with the following categories: Date, # of cases, Attending, Location, Procedure, and Format.

The actual requests for production were provided by LUMC in its response. (Dkt. 202 at Exs. 1 and 2.)

Plaintiff's motion to modify [193] seeks to issue requests for case logs for the additional individuals who had overlapping residencies with plaintiff. The request will be addressed in further detail below.

The Court acknowledges that some residents may only have overlapped with plaintiff's residency period for a year. In an effort to narrowly tailor the documents to potentially relevant records, only those records from the years in which plaintiff was a resident shall be produced.

Plaintiff's motion identifies the requested documents as “operative notes,” but the reply identifies the documents as “patient” notes. As evidenced by the language in the actual document request (Dkt. 202 at Ex. 1), more than just operative notes are requested.

Plaintiff mistakenly argues that “[t]here is a HIPPA protective order in this case.” (Dkt. 187 at 6.) While there is a protective order for confidential documents, there is no HIPPA order for medical records, let alone a HIPPA order regarding any nonparty medical records.

Defendants reassert the reasons argued in LUMC's response to plaintiff's motion to compel in support of their argument.

Given the Court's reasons for denying the request to supplement discovery, the Court does not find it necessary to address whether the proposed supplemental request would have been appropriate had it been made in a timely manner.