Reed v. Ill. Dept. of Corr.

JAVAIREE REED, Plaintiff, v. ILLINOIS DEPT. OF CORRECTIONS; et al., Defendants.

No. 17 C 5560

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

October 15, 2019

Magistrate Judge Jeffrey Cole

MEMORANDUM OPINION AND ORDER

INTRODUCTION

On October 9, Plaintiff's counsel filed a motion to compel a deposition, extend the discovery deadline, and for sanctions. A week later, at 7:00 a.m. on October 15, the defendant's counsel filed a "Response," fully aware that this simple and straightforward matter was to be presented this morning at 8:30 a.m. Invoking the Local Rules, counsel for defendants said that she did not serve a courtesy copy because under the rules she had 24 hours to do so - even though it would have been simplicity itself for her to have brought a copy with her and even though the motion was to be heard this morning. Finally, the 5-page "Response" was delivered late this afternoon at 4:00 p.m. It did not cite a single case. And it cited Rule 37 to support the argument with which no one disagrees that good faith attempts should be at least attempted before court action can be sought. [Dkt. #90 at 5]. The motion contains a rather one-side explanation of what has occurred in this case. To say that counsel for the defendants is an innocent in all that has happened distorts the record. The courtesy copy served on my courtroom deputy late this afternoon contained Exhibits lettered A through G, but with no protruding tabs, in violation of Local Rule 5.2.

The defense counsel's insistence this morning on the letter of the Local Rules (regarding the time for service of a courtesy copy) in this regard seems odd since none of the multiple exhibits were separated by protruding tabs as the Local Rule requires. Unfortunately, the responses of the defendant's counsel at the argument were as unpersuasive as was the written presentation, and, in the end, were unsupported by meaning authority and arguments. For the reasons set forth below, the plaintiff's motion [Dkt. # 88] is granted.

A.

On September 18, 2019, one month before discovery was set to close, the court ordered that the deposition of defendant Correctional Officer Springer be deposed at Stateville Correctional Center, as the defendants had insisted. It was reset for September 25, 2019. [Dkt. # 87]. The prologue to this was Byzantine, given the schedules of the correctional officers, and the lawyers, and the defendants' insistence that depositions occur only at the Stateville Correctional Center. It should be pointed out that this case was filed in July of 2017, over two years ago, and the scheduling of depositions of defendants was only crystallized two years later. There is perhaps no other walk of life where that level of procrastination and resistance would be thought unremarkable. In any event, finally, it was agreed that Officer Springer's deposition would be held on the 25^th at the correctional facility - the location insisted on by the defendants and their counsel. That insistence was improper and, as we shall see, contravened the Federal Rules of Civil Procedure.

Just a few hours after the lengthy discovery status hearing on September 18^th, at which defendants' counsel agreed on the date for the deposition, defendants' counsel emailed plaintiff's counsel to tell him that Springer would be on vacation from September 25^th through October 15^th,and therefore, could not be deposed as agreed hours earlier. Presumably he would be traveling, but defendants' counsel did not say so. [Dkt. # 88-1]. She offered plaintiff's counsel September 23^rd as an alternate date, but plaintiffs' counsel had already indicated earlier in this tortured scheduling process he was not available that day. And, so the two attorneys went back and forth again via email. Plaintiff's counsel asked for October 16, 17, or 18 - again, the close of discovery was the October 18^th - but, for unknown reasons, those dates were not good for defendants. [Dkt. # 88-1]. A week later, on September 25^th, plaintiff's counsel suggested October 21^st or 23^rd - dates after the close of discovery. Two more weeks went by, and plaintiff's counsel emailed defendants' counsel to say he was available for Springer's deposition on October 21^st. Plaintiff's counsel confirmed. [Dkt. # 88-2].

First things first. There is absolutely no excuse for the defendants to have gone through a status hearing, at the taxpayers' expense, to schedule Springer's deposition, only to violate the court Order setting that deposition just hours later. They either participated in that hearing in bad faith - which, not surprisingly, defense counsel stubbornly denies - or scheduled the vacation thereafter in bad faith, which is also denied. See Rice v. City of Chicago, 333 F.3d 780, 785 (7th Cir. 2003)(collecting cases defining "fault" as "objectively unreasonable behavior" and "bad faith" as "reckless disregard of a party's obligations to comply with a court order").¹

Officer Springer is ordered - again - to appear for his deposition on October 21^st. And to appear not at Stateville but at the location specified in the Notice of Deposition. If he fails to do so, it will be recommended that a default judgment be entered against him. See, e.g., Mojapelo v. Nat'l R.R. Passenger Corp., 748 F. App'x 68, 71 (7th Cir. 2019)(judgment against a party "may beappropriate after a party makes more than just one discovery error and gives no reasonable explanation . . . ."); Pendell v. City of Peoria, 799 F.3d 916, 917 (7th Cir. 2015)(court may impose harshest sanction after parties' [willful[] refus[al] to comply with discovery orders and the [party] has been warned that noncompliance may lead to [default judgment]."). Moreover, the location of that deposition shall be of the plaintiff's choosing - not the defendants' - even though the latter obdurately continue to insist that the deposition be held at the correctional facility. That is not, however, what the Federal Rules provide for.

The Federal Rules of Civil Procedure provide that as long as the deposition of a party occurs in the district where the case is filed, it is the plaintiff's choice where it occurs. 8A Wright, Miller & Marcus, Federal Practice and Procedure § 2112 (2010); Gonzalez v. Scaletta, 2018 WL 6573227, at *5 (N.D. Ill. 2018); DeGeer v. Gillis, 2010 WL 3732132, at *1 (N.D. Ill. 2010).

In addition, Plaintiff's counsel tells us that he is not allowed to take his phone with him to the depositions at the correctional facility, and at prior depositions, counsel would (or could) not call my chambers, as I had instructed counsel to do if conflict and issues arose. [Dkt. ##70, 88, ¶. 8]. Seemingly free of immediate judicial oversight, defendants' counsel not surprisingly instructed her witnesses not to answer certain questions and indicated she would file a brief. [Dkt. #88, ¶. 8; Dkt. #90, ¶¶ 10,11]. But, no brief was filed until 7:00 a.m. this morning, and then only in response to the plaintiff's motion. And, it bears repeating, the brief was five pages long and cited no case or Federal Rules of Civil Procedure. The unsupported and feckless claim of the defendants' lawyer reiterated this morning that she had the right to instruct a deponent not to answer questions - even though no claim of privilege was involved - is flatly wrong. Not surprisingly, the lawyer for the defendants was unable to call the court's attention to a single case supporting the notion that she fecklessly soughtto advance, namely that she could instruct a deponent not to answer a question - even though no claim of privilege was involved.² That she had done so in this case was...