Shefts v. Petrakis

Filing 164

ORDER & OPINION Entered by Judge Joe Billy McDade on 7/22/11. 161 Motion for Extension of Time to File Response to 152 MOTION for Summary Judgment GRANTED in part. Plaintiff is granted until 8/5/2011 to file its Response. (SW, ilcd)

E-FILED

Friday, 22 July, 2011 10:13:59 AM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
PEORIA DIVISION
JAMISON J. SHEFTS, an individual

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Plaintiff,
v.
JOHN PETRAKIS, an individual,
KEVIN MORGAN, an individual,
and HEIDI HUFFMAN, an individual,
Defendants.

Case No. 10-cv-1104

ORDER & OPINION
Before the Court is Plaintiff’s Motion for Extension of Deadline to File
Response in Opposition to Defendant’s Motion for Summary Judgment Pursuant
to Federal Rule of Civil Procedure 56(d). (Doc. 161). Plaintiff’s Response is
currently due on July 26, 2011, however Plaintiff asks that this date be extended
until September 6, 2011, or fourteen days after necessary depositions are
completed, whichever is sooner (Doc. 161 at 5). Defendant has filed a Response
to Plaintiff’s Motion (Doc. 163). For the following reasons, Plaintiff’s Motion for
Extension is GRANTED in part.
Rule 56(d) provides that “If a nonmovant shows by affidavit or declaration
that, for specified reasons, it cannot present facts essential to justify its
opposition, the court may . . . (2) allow time . . . to take discovery.” Defendants
filed a Motion for Summary Judgment on June 22, 2011 (Doc. 152).

In it,

Plaintiff alleges that Defendants have raised a new defense to his cause of action

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for the first time – i.e., that since January 1, 2006, Defendants have had the
authority to monitor Plaintiff’s electronic communications. (Doc. 161 at 3). This
is contrary to Defendants’ previous position, that no electronic communications
had been monitored prior to June 18, 2008, which they argued in their previous
Response to Plaintiff’s Motion for Summary Judgment (Doc. 60) and in their
Answers to the First Amended Complaint. Accordingly, Plaintiff states that he
began discovery with a focus of establishing that Defendants had monitored his
communications prior to June 18, 2008, a time which he believed that they had
no authority to do so.

Subsequent discovery and Defendants’ Motion for

Summary Judgment have since made clear that the monitoring did in fact begin
prior to June 18, 2008, and therefore Plaintiff alleges that he has not had an
opportunity to conduct discovery with regards to their claim of authority.
Accordingly, Plaintiff asks for additional time to obtain affidavits from
third parties, and to conduct depositions of Defendants Petrakis, Morgan, and
Huffman. (Doc. 161-1 at 9). Plaintiff states that these depositions will allow
him to ascertain: 1) the approximate date on which each Defendant began
monitoring Plaintiff’s communications; 2) the manner in which Defendants
believe Plaintiff provided them with express authority to do so; 3) the manner in
which Plaintiff allegedly consented to their doing so; 4) the actions taken by
Defendants Petrakis and Morgan, in their capacities as directors and 30%
shareholders of Access2Go, that allegedly allowed them to do so; 5) the manner
in which Petrakis obtained the role of “security liaison” of Access2Go; 6) the

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scope of Defendants’ monitoring of the other employees at Access2Go; and 7) the
methods by which Defendants read and reviewed Plaintiff’s electronic
communications. (Doc 161-1 at 9). Plaintiff also states that he needs time to
take the deposition of Shawn Patton, in order to more conclusively determine the
manner in which Defendants were monitoring Plaintiff’s communications, when
the monitoring began, the manner in which Defendants were monitoring other
employees of Access2Go, and the timeline pursuant to which Defendants
implemented

different

systems

of

monitoring

Plaintiff’s

electronic

communications. (Doc. 161-1 at 10).
Finally, Plaintiff points out that this Court, on July 20, 2011, entered an
Order granting Plaintiff’s Motion to Authorize Disclosure of Data Excluded from
Forensic Report, and sustaining Defendant’s Objection to Feehan’s Proposed
Disclosure of information on his report concerning the Old Hard Drive.
Pursuant to that Order (Doc. 160), and the Agreed Order (Doc. 139) previously
entered into in this case, these reports are not be disclosed for ten days, in order
to allow Defendants time to seek other relief, if necessary. Therefore, the reports
will not be delivered until four days after the response deadline.
Defendants have filed a Response in Opposition to Plaintiff’s Motion for
Extension of Deadline (Doc. 163) in which they argue that the Affidavit
submitted by Plaintiff’s attorney was insufficient, and that additional discovery
is unwarranted. According to Defendants, all of the requisite facts have been
known by Plaintiff since the date he filed his lawsuit, and all the extension will

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do is serve to place a further burden onto the parties. The Court agrees with
Defendants. In accordance with the allegations of his Complaint, it is Plaintiff,
not Defendants, who has the burden of proving that prior to June 18, 2008,
Defendants had, without his authorization or consent, monitored his electronic
communications.1 Consistent with this burden, Plaintiff acknowledges in his
motion that his past discovery was focused on establishing that Defendants had
monitored his communications prior to June 18, 2008.

If such focus were

developed during Plaintiff’s past discovery, it is unimaginable that Plaintiff
would not follow up this suspicion by inquiring as to Defendants’ authority to do
so. 2 Plaintiff’s argument that he needs to take further discovery to develop this
line of inquiry rings hollow. The fact that Defendants now admit in their Motion
for Summary Judgment that they did in fact begin monitoring Plaintiff’s
communications prior to June 18, 2008, validates Plaintiff’s theory of the case as
pursued by Plaintiff during past discovery. Defendants’ belated confession does
not change the factual landscape that Plaintiff sought to explore earlier and it
does not warrant giving Plaintiff a second shot at a target he should have aimed
at during his past discovery.

Plaintiff’s Amended Complaint alleges that the monitoring began prior to 2008.
(See Doc. 38 ¶ 28).
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In fact, Plaintiff states in his motion that he has already sought discovery
attempting to establish 1) the fact that the interceptions began prior to June 18,
2008, 2) that Access2Go did not appoint Petrakis as “security liaison” on June
18, 2008, and 3) that Defendants never obtained express authorization from
Plaintiff, before or after June 18, 2008, to monitor his electronic communications
with third parties. (Doc. 161 at 2-3).
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Therefore, the Court finds that Plaintiff has failed to give an adequate
explanation of the reasons why an extension is necessary in this case.
Farmer v. Brennan, 81 F.3d 1444, 1459 (7th Cir. 1996).3

See

However, the Court

does recognize the fact that some discovery that has already begun and may be
necessary to Plaintiff’s response is non-disclosable until July 30, 2011, pursuant
to this Court’s previous Order (Doc. 161). Accordingly, Plaintiff’s Motion for
Extension (Doc. 161) is GRANTED in part. Plaintiff is granted until August 5,
2011 to file its Response. IT IS SO ORDERED.

Entered this 22nd day of July, 2011.
s/ Joe B. McDade
JOE BILLY McDADE
United States Senior District Judge

In addition, while Plaintiff discusses the topics he would explore if further
discovery were permitted, he does not establish how any of his requested
discovery is “likely to generate a genuine issue of material fact.” Jacoby v.
Schimka Auto Wreckers, Inc., 2010 WL 317171515, at *3 (N.D. Ill. Aug. 11, 2010)
(citing Woods v. City of Chicago, 234 F.3d 979, 990 (7th Cir. 2000)). Plaintiff
must not only speculate that further discovery would unearth beneficial
material, he must set forth specific facts that he seeks to obtain from such
discovery which would create a genuine issue of material fact. Davis v. G.N.
Mortgage Corp., 396 F.3d 869 (7th Cir. 2005).
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