Jump v. Montgomery County et al

Filing 93

OPINION entered by U.S. Magistrate Judge Tom Schanzle-Haskins. Plaintiff's Motion for Sanctions and to Compel 84 ALLOWED in part and DENIED in part. See written order. (LB, ilcd)

E-FILED

Tuesday, 06 October, 2015 11:18:07 AM
Clerk, U.S. District Court, ILCD

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

)
)
Plaintiff,
)
)
v.
)
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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.
)

No. 13-cv-3084

OPINION
TOM SCHANZLE-HASKINS, U.S. MAGISTRATE JUDGE:
This matter comes before the Court on Plaintiff Kari Jump’s Motion
for Sanctions and to Compel (d/e 84) (Motion). For the reasons set forth
below, the Motion is ALLOWED in part and DENIED in part.
BACKGROUND
On March 28, 2013, Jump filed this action alleging sex discrimination,
harassment, and retaliation in violation of the Civil Rights Act of 1866 and
the Civil Rights Act of 1964, 42 U.S.C. §§ 1983 and 2000e; and in violation
of the Illinois Human Rights Act, 775 ILCS 5/1-102 . Second Amended
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Complaint (d/e 20) (Complaint), ¶ 1. Jump alleges that she started working
at the Montgomery County Sheriff’s Office in 2007. She alleges that the
illegal conduct began in the summer of 2011 and continued until her
termination on July 27, 2012. Complaint, ¶¶ 18, 21-65.
On November 6, 2013, Jump served document requests on the
defendants. The requests asked for documents related to any claims of
sexual discrimination or harassment filed against any employee of the
Montgomery County Sheriff’s Office. Motion, Exhibit 2, Plaintiff’s First
Request for Production of Documents to Defendant Montgomery County,
¶¶ 17, 19, 23. The Defendants responded to the requests on January 8,
2014. Defendants’ Response in Opposition to Plaintiffs’ Motion for
Sanctions and to Compel (d/e 86), Exhibits G, H, and I, Responses to
Requests for Production of Documents.
On July 22, 2015, Jump deposed Defendant Sheriff Jim Vazzi.
Defendant Undersheriff Rick Robbins attended a portion of Vazzi’s
deposition. Sheriff Vazzi testified that he could not recall any other sexual
harassment complaints. Upon hearing Vazzi’s response to this question,
Robbins remembered that he had conducted investigations of three sexual
harassment complaints filed on October 24, 2014, December 15, 2014, and
February 2, 2015. The complaints all concerned a female employee
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named Pam Ott and a male employee named Dave Stege. Ott was a cook
in the kitchen at the Montgomery County Jail, and Stege was a correctional
officer at the Jail. Ott filed the first two complaints about Stege, and Stege
filed the last complaint about Ott. All concerned the use of sexually
offensive language.
Robbins investigated the complaints. Robbins reviewed the Sheriff’s
office audio visual monitoring equipment as part of his investigations. The
monitoring equipment recorded one of Stege’s statements, but Stege was
not within the view of the equipment’s camera at the time. Robbins
determined that the recording equipment did not record either of the other
comments. As a result of Robbins’ investigations, Stege was disciplined
based on the two complaints Ott filed, but Ott was not disciplined.
After the Vazzi deposition, Robbins told defense counsel about the
three incidents. On July 23, 2015, Defense counsel provided to Jump’s
counsel the documents related to the three complaints and the audio
recording of Stege’s comments (Ott/Stege Documents). Jump deposed
Robbins on July 24, 2015, after receiving these documents. On July 27,
2015, defense counsel offered to allow Jump to redepose Vazzi on July 30,
3015, about these three complaints. The parties were scheduled to take a
deposition on that day. Jump’s counsel declined. Jump’s counsel states
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that she did not have time to add a deposition to her schedule that day
because she was already attending the scheduled deposition and
reviewing files at the Montgomery County Sheriff’s Office. Fact discovery
closed on July 31, 2015. Text Order entered March 2, 2015. Jump asks
for sanctions under Rule 37(c) for failure to produce these documents in a
more timely fashion. Fed. R. Civ. P. 26(e) and 37 (c).
In addition, on July 30, 2015, Jump’s counsel inspected personnel
files at the Montgomery County, Illinois, Sheriff’s Office. Jump’s notice for
production and inspection of documents included the personnel files of
anyone who has had a complaint filed against him or her for harassment,
retaliation, discrimination, and/or sexual misconduct. The Defendants
produced the investigation file for each such employee. The Defendants
objected to producing the entire personnel file of these employees. Jump
moves to compel the production of the entire personnel files of anyone who
has had a complaint filed against him or her for harassment, retaliation,
discrimination, and/or sexual misconduct.
ANALYSIS
A party must supplement initial disclosures and responses to
discovery requests “in a timely manner if the party learns that in some
material respect the disclosure or response is incomplete or incorrect, and
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if the additional or corrective information has not otherwise been made
known to the other parties during discovery or in writing.” Fed. R. Civ. P.
26(e)(1)(A). If a party fails to comply with Rule 26(e)(1)(A), “the party shall
not be allowed to use the information or witness to supply evidence on a
motion, at a hearing, or at a trial, unless the failure was substantially
justified or harmless.” Fed. R. Civ. P. 37(c)(1). The Court may also impose
sanctions and order payment of attorney fees and expenses caused by the
failure to comply. Fed. R. Civ. P. 37(c)(1)(A)-(C).
The Defendants should have supplemented their responses to
Jump’s document production request with the Ott/Stege Documents in a
more timely fashion. Jump asked for documents related to discrimination
and harassment claims. The Defendants had an obligation to supplement
their responses. The Defendants did not disclose these documents until
just a few days before the close of fact discovery.1 Rule 26(e)(1)(A)
requires a timely supplement. The Defendants’ supplement was not timely.
The Defendants argue that disclosure of the information during
discovery is sufficient to meet the requirements of Rule 26(e). See Weiland
v. Linear Const., Ltd., 2002 WL 31307622, at *2 (N.D. Ill. October 15, 2002)
1

Jump argues that the Defendants also had an obligation to disclose the Ott/Stege Documents to
supplement its initial disclosures under Rule 26(a). Rule 26(a) requires a party to disclose witnesses and
documents “that the disclosing party may use to support its claims or defenses, unless the use would be
for impeachment.” Fed. R. Civ. 26(a)(1)(A)(i) and (ii). The Defendants view the Ott/Stege Documents as
irrelevant. The Defendants, therefore, were not required to disclose this information under rule 26(a).

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(disclosure of identity of witness during deposition is sufficient notice under
Rule 26(e)). Rule 26(e), however, requires timely disclosure. The problem
here is the lateness of the disclosure. The Defendants disclosed the
Ott/Stege Documents in an untimely manner, shortly before the close of
discovery.
The Court, therefore, must preclude the Defendants from using the
information produced about the Ott and Stege sexual harassment claims
unless the failure to supplement in a timely manner was harmless or
substantially justified. Fed. R. Civ. P. 37(c)(1). The Defendants argue that
the documents were irrelevant so any failure was harmless and Defendants
were substantially justified in not producing the material sooner. The Court
disagrees. Jump seeks to hold Montgomery County directly liable for the
§ 1983 violation. To succeed in the § 1983 claim, she must show that the
alleged harassment occurred pursuant to an official policy, custom, or
practice, or by a person with policy making authority. See Monell v.
Department of Social Services of City of New York, 436 U.S. 658, 694
(1978). Other sexual harassment claims are relevant to the policy, custom
or practice of the Montgomery County Sheriff’s Office. The failure to
supplement in a timely manner was not harmless or substantially justified.
The Defendants may not use information from the Ott/Stege Documents in
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their defense at trial or in connection with a motion including a summary
judgment motion.2
The question of additional sanctions is within the discretion of the
Court. Fed. R. Civ. P. 37(c)(1)(A)-(C). The Court finds that the appropriate
sanction is to: (1) require Sheriff Vazzi to sit for a second deposition not to
exceed two hours and limited to the information related to the Ott/Stege
Documents and the Sheriff Department’s handling of those claims; (2) allow
Plaintiff Jump a thirty day extension of fact discovery to depose Ott and
Stege pursuant to subpoena; (3) require the Defendants to produce any
unproduced audio visual recordings from monitoring equipment referenced
in the Ott/Stege Documents or certify that the recordings no longer exist;
and (4) provide a copy of the training session mentioned in the Ott/Stege
Documents. The Defendants’ late supplement of their discovery responses
prejudiced Jump by denying her the opportunity to depose Ott and Stege
before fact discovery ended, to ask Sheriff Vazzi about the two complaints,
and to seek copies of the training tape and audio visual recordings
referenced in those documents. Imposing these sanctions remedies those
injuries.

2

Plaintiff Jump is not precluded from presenting evidence from the Ott/Stege Documents. The Court
does not decide how the Defendants may respond if Jump presents such evidence at trial or at summary
judgment. The District Court should address that issue in connection with the trial or summary judgment
motion.

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The Court, in its discretion, does not impose fees or expenses on
Defendants, including fees or costs for any of the additional depositions or
for the filing of this Motion. The Defendants supplemented the discovery
production as soon as Robbins remembered about the existence of the
Ott/Stege Documents and before fact discovery formally closed. The
Defendants also offered Sheriff Vazzi for a second deposition to alleviate
the harm. Under these circumstances, the Court determines in its
discretion that the Defendants should not be required to pay any costs.
The only prejudice was the lack of time due to the closing of discovery.
Jump would have paid the cost for the additional depositions if the
Defendants had supplemented the document production in a timely
manner. Extending the time to take these two depositions is sufficient to
remedy any harm. The Court declines to impose any costs or fees for the
failure to supplement the discovery production with the Ott/Stege
Documents in a timely manner.
Jump also asks the Court to compel production of other documents.
Jump asks the Court to compel production of documents related to an
employee named Liebscher. Robbins testified at his deposition that
Liebscher quit after allegations of sexual misconduct. The alleged
misconduct was not work-related. Jump also asks the Court to compel
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production of complete personnel files of every person against whom a
sexual harassment or discrimination complaint was filed. These requests
are unrelated to the Defendants’ failure to supplement their document
production with the Ott/Stege Documents. Rather, these portions of the
Motion are separate requests to compel discovery.
Requests to compel discovery are covered by Rule 37(a), not Rule
37(c). A movant in a Rule 37(a) motion must certify that she has attempted
in good faith to meet and confer with the other party to obtain the discovery
without court action. Fed. R. Civ. P. 37(a)(1). Jump makes no such
certification. These portions of the Motion are therefore denied.
THEREFORE Plaintiff’s Motion for Sanctions and to Compel (d/e 84)
is ALLOWED in part and DENIED in part. The Defendants are barred from
presenting evidence concerning the sexual harassment complaints filed by
Montgomery County Sheriff employees Pam Ott and Dave Stege in 2014
and 2015 in connection with any motion or at trial. Defendant Vazzi is
required to attend a second deposition not to exceed two hours and limited
to the Ott and Stege sexual harassment claims and the Montgomery
County Sheriff Department’s handling of those claims. The Plaintiff Jump is
given a limited extension of fact discovery to November 6, 2015, to depose
Ott and Stege pursuant to subpoena. The Defendants are ordered to
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produce the second audio visual recording referenced in the Ott/Stege
Documents or certify that the recording no longer exists; and to produce a
copy of the training session mention in the Ott/Stege Documents. The
Court declines to require the Defendants to pay any of the Plaintiff’s costs
or fees including fees and costs for the additional depositions or for filing
this Motion. The remainder of the Motion is DENIED.
ENTER: October 6, 2015

s/ Tom Schanzle-Haskins
UNITED STATES MAGISTRATE JUDGE

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