Jump v. Montgomery County et al

Filing 69

OPINION entered by U.S. Magistrate Judge Tom Schanzle-Haskins. Plaintiff's Motion to Compel Defendants' Depositions 60 , Defendants' Emergency Motion to Compel Depositions and for Sanctions 62 , and Movant James Jump and Rita Holzkn echt's Motion to Quash Defendants' Subpoenas 65 are ALLOWED in part and DENIED in part; Plaintiff's Motion for Leave to File a Supplement in Support of Plaintiff's Motion to Compel Defendants' Depositions 63 is ALLOWED; and Plaintiff's Motion for Leave to File Reply in Support of Plaintiff's Motion to Compel Defendants' Depositions 68 is DENIED. See written order. (LB, ilcd)

E-FILED

Friday, 26 June, 2015 04:00:18 PM
Clerk, U.S. District Court, ILCD

IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION

KARI JUMP,
Plaintiff,
v.
MONTGOMERY COUNTY,
SHERIFF JIM VAZZI, in his
official and individual capacity,
RICK ROBBINS, KURT ELLER,
RICK FURLONG,
DOUG WHITE,
GREGORY NIMMO,
and MARY SHIPMAN,
in their individual capacities,
Defendants,

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No.13-cv-3084

OPINION
TOM SCHANZLE-HASKINS, U.S. MAGISTRATE JUDGE:
This matter comes before the Court on Plaintiff Kari Jump’s Motion to
Compel Defendants’ Depositions (d/e 60) (Motion 60), Defendants’ Emergency
Motion to Compel Depositions and for Sanctions (d/e 62) (Motion 62), Plaintiff’s
Motion for Leave to File a Supplement in Support of Plaintiff’s Motion to Compel
Defendants’ Depositions (d/e 63) (Motion 63), Movant James Jump and Rita
Holzknecht’s Motion to Quash Defendants’ Subpoenas (d/e 65) (Motion 65), and
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Plaintiff’s Motion for Leave to File Reply in Support of Plaintiff’s Motion to Compel
Defendants’ Depositions (d/e 68) (Motion 68). Motion 63 is ALLOWED. Plaintiff
may supplement her Motion 60 with the supplement attached to Motion 60.
Motion 68 is DENIED. Replies to responses are not permitted. Local Rule
7.1(B)(3). For the reasons set forth below, Motion 60, Motion 63, and Motion 65
are ALLOWED in part and DENIED in part.
On June 11, 2015, the parties conducted a conference under Federal Rule
of Civil Procedure 37(a) (Rule 37 Conference) to attempt to resolve the
scheduling of several remaining depositions. Plaintiff sought to settle on dates
for the depositions of Individual Defendants Montgomery County, Illinois, Sheriff
Jim Vazzi, Under Sheriff Rick Robbins, Deputy Kurt Eller, and Captain Gregory
Nimmo. Plaintiff sought to settle on dates for the depositions of non-party
witnesses James Jump and Rita Holzknecht. James Jump is the Plaintiff’s
estranged husband, and Holzknecht is Plaintiff’s mother. See Motion 62,
Exhibit J, Transcript of Rule 37 Conference dated June 11, 2015; Motion 63,
Exhibit A, Plaintiff’s Supplement in Support of Plaintiff’s Motion to Compel
Defendants’ Depositions, Exhibit 1, Transcript of Rule 37 Conference dated June
11, 2015.
The parties also discussed other matters at the Rule 37 Conference,
including redaction of passwords and email addresses from documents produced
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by Plaintiff, and the production of a complete insurance policy by Defendants.
Defendants agreed to redact the requested material and produce the complete
policy. Transcript of Rule 37 Conference dated June 11, 2015, at 32-33. The
Defendants are directed to comply with these requests by July 15, 2015.
Both parties now ask the Court to compel the opposing party to conduct the
remaining depositions on each side’s preferred schedule and location. Plaintiff
noticed the depositions of Eller, Vazzi, Robbins, and Nimmo on its preferred
schedule and location. Defendants served subpoenas (Subpoenas) for the
depositions of James Jump and Holzknecht on Plaintiff’s counsel by certified
mail.
Defendants served the Subpoenas on Plaintiff’s counsel by certified mail.
Defendants’ counsel received signed return receipts showing delivery of the
Subpoenas. Defendants’ Response to Plaintiff’s Supplement in Support of
Plaintiff’s Motion to Compel Defendants’ Depositions (d/e 67) (Defendants’
Supplemental Response), Exhibit B, Return Receipts. Plaintiff’s counsel states
that she returned the Subpoenas because the postage was insufficient.
Plaintiff’s Response to Defendants’ Emergency Motion to Compel (d/e 66)
(Plaintiff Response), at 3. The signed return receipts show that the office of
Plaintiff’s counsel accepted delivery. The Subpoenas were served by mail.

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See Ott v. City of Milwaukee, 682 F.3d 552, 557 (7th Cir. 2012) (allowing service
of subpoenas by certified mail).
Plaintiff’s counsel also states that the Defendants failed to include the
appropriate witness fees and mileage fees with the Subpoenas. It is unclear to
the Court how Plaintiff’s counsel knew this since the Subpoenas were returned
for insufficient postage. Regardless, Defendants respond that Plaintiff did not
provide addresses for James Jump and Holzknecht in her Rule 26 disclosures so
the Defendants could not calculate the appropriate mileage fees. Rather, Plaintiff
represented that James Jump and Holzknecht could only be contacted through
Plaintiff’s counsel.
Defendants’ counsel asked Plaintiff’s counsel at the Rule 37 Conference to
confirm that she represented James Jump and Holzknecht. Plaintiff’s counsel
refused to do so at that time. On June 12, 2015, Plaintiff’s counsel confirmed
that she represented James Jump and Holzknecht and stated that appropriate
witness fees would be $106.25 for James Jump and $108.43 for Holzknecht for
depositions at Springfield, Illinois. Motion 62, Exhibit P, Email from Dana Kurtz to
Karin Anderson dated June 12, 2015. Plaintiff now states that these figures
represent mileage fees only, not witness fees. Plaintiff Response, ¶ 9.
The parties also cannot agree on the location for depositions. Plaintiff
prefers all depositions to be conducted at the Springfield, Illinois, airport so
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Plaintiff’s counsel can fly in and out to the depositions without having to rent a
car. Defendants want the depositions to be closer to Hillsboro, Illinois.
Defendants particularly want the depositions of Vazzi, Nimmo, and Robbins to be
held closer to Hillsboro, Illinois, because they want to be closer to the Sheriff’s
Department headquarters in Hillsboro, Illinois, in case of an emergency.
Defendants’ counsel stated that Vazzi, Nimmo, and Robbins are the command
staff for the Sheriff’s Department. They want to attend each other’s depositions
and do not want to all be so far away.
Finally, Plaintiff’s counsel states that she wants to take the depositions of
the party Defendants before taking depositions of third-party witnesses. The
Court notes, however, that Plaintiff already took the deposition of four third-party
defense witnesses. See Motion 60, ¶ 6. The Defendants’ counsel states that
she wants to take the depositions of James Jump and Holzknecht before
allowing Plaintiff to depose Eller, Nimmo, Robbins, or Vazzi. See Motion 62,
at 12.
The Court has broad discretion to determine how discovery will be
conducted. See In re Sulfuric Acid Antitrust Litigation, 231 F.R.D. 331, 336
(N.D. Ill. 2005); Fed. R. Civ. P. 26(c) and (d). The parties have not been able to
set a schedule of depositions, and the depositions must be completed to bring

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this matter to resolution. The Court, therefore, orders that the depositions shall
be conducted on the following schedule:
1. On July 15, 2015, the deposition of Kurt Eller will occur at the
Springfield, Illinois, airport facility previously used by the parties,
commencing at 9:00 a.m. and ending no later than 5:00 p.m., with a
one-hour break for lunch from 12:00 p.m. to 1:00 p.m.;
2. On July 21, 2015, the deposition of Greg Nimmo will occur at the
conference room at the Baymont Inn and Suites located at 1405 W.
Hudson Drive, Litchfield, Illinois, commencing at 9:00 a.m. and ending
no later than 5:00 p.m., with a one-hour break for lunch from 12:00 p.m.
to 1:00 p.m.;
3. On July 22, 2015, the deposition of Jim Vazzi will occur at the
conference room at the Baymont Inn and Suites located at 1405 W.
Hudson Drive, Litchfield, Illinois, commencing at 9:00 a.m. and ending
no later than 5:00 p.m., with a one-hour break for lunch from 12:00 p.m.
to 1:00 p.m.;
4. On July 23, 2015, the deposition of James Jump will occur at the
Springfield, Illinois, airport facility previously used by the parties,
commencing at 9:00 a.m. and ending no later than 12:30 p.m.;

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5. On July 23, 2015, the deposition of Rita Holzknecht will occur at the
Springfield, Illinois, airport facility previously used by the parties,
commencing at 1:30 p.m. and ending no later than 5:00 p.m.; and
6. On July 24, 2015, the deposition of Rick Robbins will occur at the
conference room at the Baymont Inn and Suites located at 1405 W.
Hudson Drive, Litchfield, Illinois, commencing at 9:00 a.m. and ending
no later than 5:00 p.m., with a one-hour break for lunch from 12:00 p.m.
to 1:00 p.m.
The Court set the depositions of James Jump and Holzknecht on July 23,
2015, in Springfield, Illinois, because they were available on that date, because
they prefer the depositions in Springfield, and because the Defendants should
have included a witness fee with the Subpoenas when they were served.
Plaintiff’s Rule 26 disclosures failed to provide addresses for James Jump and
Holzknecht, so Defendants could not calculate mileage for travel expenses.
Plaintiff also stated in the Rule 26 disclosures that James Jump and Holzknecht
should be contacted through Plaintiff’s counsel, so service on counsel was
appropriate. The witness fee, however, should have been included. The Court
finds that moving the depositions to James Jump and Holzknecht’s preferred
date and location is an appropriate sanction for the failure to tender witness fees.
See Fed. R. Civ. P. 45(d)(1). Defendants shall tender to Plaintiff’s counsel by
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July 15, 2015, the witness fees of $40 each and the mileage fees of $106.25 for
James Jump and $108.43 for Holzknecht. See 28 U.S.C. § 1821(b) (witness fee
is $40.00 per day).
The Court set the depositions of Eller, Vazzi, Robbins, and Nimmo at dates
that they and the attorneys appear to be available. See Defendants’
Supplemental Response, ¶¶ 4, 5, 15.1 The Court set the depositions of Vazzi,
Robbins, and Nimmo in Litchfield because the Court agrees that parties have a
valid interest in attending all depositions, and the interests of public safety in
Montgomery County, Illinois, merit allowing these Defendants to remain close to
the Montgomery County, Illinois, Sheriff’s Department headquarters. The
convenience of Plaintiff’s counsel does not outweigh these concerns.
The Court denies Plaintiff’s request to complete all depositions of
Defendants before conducting third-party witness depositions. Discovery
generally may be conducted in any order. Fed. R. Civ. P. 26(d)(2). In addition,
Plaintiff already deposed four third-party defense witnesses before completing
party depositions. See Motion 60, ¶ 6. She cannot complain about the
Defendants doing the same. The Court also denies Defendants’ request to
conduct the depositions of James Jump and Holzknecht before the depositions of

1

Ellers’ deposition was set for July 2, 2015. He currently is not available on that date. See Defendants’
Supplemental Response, ¶ 15.

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Eller, Vazzi, and Nimmo. Again, discovery generally may be conducted in any
order.
Plaintiff noticed the depositions of Eller, Vazzi, Robbins, and Nimmo, and
so, shall bear the cost of these depositions except for the cost of the conference
room in the Litchfield hotel. The Court chose the location in consideration of the
Defendants’ request, and so, the Defendants shall bear the cost of renting the
room. The Defendants will bear the cost of the depositions of James Jump and
Holzknecht because they noticed these depositions.
The Defendants’ request for sanctions under rule 37 is denied at this time.
The Defendants present disturbing allegations regarding the possibility that the
Plaintiff’s counsel misrepresented to the parties and the Court that she
represented James Jump and Holzknecht, and possibly interfered with Defense
counsel’s right to contact James Jump and Holzknecht directly. The statements
by Plaintiff’s counsel in the Rule 37 Conference lend some support for these
allegations because she could not confirm the representation at that time.
The Defendants, however, fail to demonstrate that these alleged
misrepresentations violate Rule 37. Rule 37 authorizes remedies for failures to
disclose information required in Rule 26 disclosures, failures to comply with
discovery requests, and failures to comply with Court orders regarding discovery.
Fed. R. Civ. P. 37(a), (b) and (c). The allegations of possible misrepresentations
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do not relate to a failure to comply with a discovery request, discovery order of
this Court, or a Rule 26 disclosure. The Court will not award sanctions under
Rule 37. This denial is without prejudice to seek other remedies if appropriate.
The Plaintiff’s request for attorney’s fees is denied. As noted above, the
Court determined the appropriate sanction for the Defendants’ failure to tender
witness fees to James Jump and Holzknecht was to move the deposition to their
preferred date and location. An award of attorney’s fees is not appropriate in this
case. See Fed. R. Civ. P. 45(d)(1).2
THEREFORE, Plaintiff Kari Jump’s Motion to Compel Defendants’
Depositions (d/e 60), Defendants’ Emergency Motion to Compel Depositions and
for Sanctions (d/e 62), and Movant James Jump and Rita Holzknecht’s Motion to
Quash Defendants’ Subpoenas (d/e 65) are ALLOWED in part and DENIED in
part; Plaintiff’s Motion for Leave to File a Supplement in Support of Plaintiff’s
Motion to Compel Defendants’ Depositions (d/e 63) is ALLOWED; and Plaintiff’s
Motion for Leave to File Reply in Support of Plaintiff’s Motion to Compel
Defendants’ Depositions (d/e 68) is DENIED.
ENTER: June 26, 2015
s/ Tom Schanzle-Haskins
UNITED STATES MAGISTRATE JUDGE

2

To the extent that Rule 37 may apply, the Court finds that an award of attorney’s fees is not appropriate in this
case. See Fed. R. Civ. P. 37(a)(5)(C).

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