Pittman v. Brown County IL et al
Filing
27
OPINION entered by U.S. Magistrate Judge Tom Schanzle-Haskins. Defendant Chase Fox's Motion to Compel Plaintiff to Provide More Complete Responses to Written Discovery, to Compel Plaintiff to be Produced for Deposition, to Bar Plaintiff From Cal ling Any NonDisclosed Witnesses, and to Extend Deadline for Defendants to Disclose Expert Witnesses 24 is ALLOWED. See written order. Plaintiff has not disclosed any expert witnesses and is barred from presenting any expert testimony. Defendant 6;s Expert Disclosure deadline is extended to 4/2/2018. Defendant Fox's counsel directed to submit to the Court by 3/2/2018, documentation showing the attorney fees and expenses incurred to file the Motion 24 . Plaintiff to respond by 3/23/2018. See written order. (LB, ilcd)
E-FILED
Friday, 09 February, 2018 03:22:09 PM
Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS, SPRINGFIELD DIVISION
LYNDSEY J. PITTMAN,
Plaintiff,
v.
CITY OF MOUNT STERLING,
ILLINOIS and CHASE FOX,
individually and in his capacity
as police officer with City of
Mount Sterling, Illinois
Police Department,
Defendants.
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No. 16-cv-3314
OPINION
TOM SCHANZLE-HASKINS, U.S. MAGISTRATE JUDGE:
This matter comes before the Court on Defendant Chase Fox's
Motion to Compel Plaintiff to Provide More Complete Responses to Written
Discovery, to Compel Plaintiff to be Produced For Deposition, to Bar
Plaintiff From Calling Any Non-Disclosed Witnesses, and to Extend
Deadline for Defendants to Disclose Expert Witnesses (d/e 24) (Motion).
The Motion is ALLOWED.
This is Defendant Fox’s second motion to compel. Defendant Fox
filed a prior Motion to Compel which the Plaintiff did not oppose, and which
the Court allowed. Unopposed Motion to Compel Plaintiff to Answer
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Outstanding Written Discovery by October 30, 2017 (d/e 20); Text Order
entered October 27, 2017. Plaintiff did not oppose the prior motion and
does not oppose this Motion.
Plaintiff’s counsel explained the failure to comply with this Court’s
Scheduling Order (d/e 15), Text Order entered October 27, 2017, and the
Federal Rules of Civil Procedure as follows:
Plaintiff and her counsel have not intentionally delayed in
furnishing the foregoing information. Rather, of no fault of
Plaintiff or any of the Defendants, Plaintiff’s counsel has had
unexpected professional obligations arise, in addition to the
regular demands of practicing law which each attorney faces.
Plaintiff’s counsel, upon short notice, learned of an opening for
public office (Circuit Judge), for which Plaintiff’s counsel has
been faced with deadlines and demands related thereto.
Plaintiff’s counsel understands his obligations to his client,
opposing counsel, and this Court. Plaintiff’s counsel determined
it would not be practical or in Plaintiff’s interest for Plaintiff’s
counsel to seek leave to withdraw from this matter, which may
have necessitated further delay.
Plaintiff Lyndsey J. Pittman’s Response to Defendant Chase Fox’s Motion
to Compel Plaintiff to Provide More Complete Responses to Written
Discovery, to Compel Plaintiff to be Produced for Deposition, to Bar Plaintiff
From Calling Any Non-Disclosed Witnesses, and to Extend Deadline for
Defendants to Disclose Expert Witnesses (d/e 26) (Response), at 2.
Plaintiff states that she has supplemented her discovery responses
and her Rule 26 disclosures, copies of which are attached to her
Page 2 of 7
Response. She lists no expert witnesses in her Rule 26 supplemental
disclosures attached to the response. She, therefore, may not call any
expert witnesses. She lists the physician that treated her at the emergency
room, Dr. Jennifer Sharp, M.D., as a fact witness, not an expert witness.
See Response, attached Rule 26 Disclosures. The parties can address the
scope of her fact testimony with the District Court prior to trial.
Plaintiff also states that she will make herself and her mother Dianne
Sargent available for depositions in the next 45 days after February 7,
2018, the filing date of the Response. By the Court’s calculation, 45 days
after February 7, 2018 is March 24, 2018. Plaintiff and her mother should
make themselves available sooner than March 24, 2018. The Court directs
that Plaintiff make herself available, and cause her mother to be available,
on or before March 9, 2018 to be deposed. Because more time was
granted to appear at a deposition than requested by Defendant Fox, the
Court will also extend the Defendants’ deadline to disclose expert
witnesses to April 2, 2018 rather than the requested date of March 19,
2018.
The Court hereby allows Defendant Fox’s second motion to compel.
The Federal Rules of Civil Procedure states,
If the motion [to compel] is granted--or if the disclosure or
requested discovery is provided after the motion was filed--the
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court must, after giving an opportunity to be heard, require the
party . . . whose conduct necessitated the motion, the . . .
attorney advising that conduct, or both to pay the movant's
reasonable expenses incurred in making the motion, including
attorney's fees. But the court must not order this payment if:
(i) the movant filed the motion before attempting in good
faith to obtain the disclosure or discovery without court
action;
(ii) the opposing party's nondisclosure, response, or
objection was substantially justified; or
(iii) other circumstances make an award of expenses
unjust.
Fed. R. Civ. P. 37(a)(5)(A) (emphasis added). Based on the record
currently before the Court and the mandatory language of Rule 37(a)(5)(A),
it appears that the Court must award fees and expenses incurred to bring
the Motion. The Court has allowed the Motion, and none of the exceptions
to the mandatory awarding of costs and expenses appear to apply.
Defense counsel repeatedly tried in good faith to secure the discovery.
Plaintiff’s counsel’s decision to forego his obligations as attorney of record
in this case to pursue a judgeship does not justify the failure to respond to
discovery requests or make mandatory Rule 26 disclosures. Plaintiff’s
counsel has not presented evidence of other circumstances that would
justify the failure to comply or make the award of fees unjust.
Page 4 of 7
In addition, Plaintiff has violated this Court’s Text Order dated
October 27, 2017, allowing Defendant Fox’s first motion to compel. When
a party fails to comply with a discovery order,
[T]he court must order the disobedient party, the attorney
advising that party, or both to pay the reasonable expenses,
including attorney's fees, caused by the failure, unless the
failure was substantially justified or other circumstances make
an award of expenses unjust.
Fed. R. Civ. P. 37(b)(2)(C) (emphasis added). Again, based on the record
currently before the Court and the mandatory language of the Rule, it
appears that the Court must award of fees and expenses incurred to file the
Motion. The record before the Court does not show that the failure to
comply with this Court’s order was substantially justified or circumstances
that would make an award of fees and expenses unjust.
Plaintiff’s counsel takes responsibility for the failure to participate in
discovery and to comply with this Court’s prior order. The Court, therefore,
will give Plaintiff’s counsel the opportunity to be heard on whether the Court
should order counsel to pay Defendant Fox’s attorney fees and expenses
incurred in filing the Motion.
THEREFORE, IT IS ORDERED that Defendant Chase Fox's Motion
to Compel Plaintiff to Provide More Complete Responses to Written
Discovery, to Compel Plaintiff to be Produced for Deposition, to Bar Plaintiff
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From Calling Any Non-Disclosed Witnesses, and to Extend Deadline for
Defendants to Disclose Expert Witnesses (d/e 24) is ALLOWED.
Defendant Fox shall notify Plaintiff of any deficiencies in her supplemental
written discovery requests by February 28, 2018. Plaintiff shall provide any
requested additional supplements to her written responses by March 9,
2018. Plaintiff has not disclosed any expert witnesses, and so, is barred
from presenting any expert testimony. Plaintiff and her mother Dianne
Sargent shall appear and be deposed at a time and place convenient to
Defendant Fox before March 9, 2018. If Plaintiff cannot cause her mother
to appear for a deposition, the Plaintiff shall inform Defendant Fox’s
counsel of her address so that he may serve a subpoena on her to force
her attendance. The Defendants’ deadline for disclosing expert witnesses
is extended to April 2, 2018.
Defendant Fox’s counsel shall submit to the Court by March 2, 2018,
documentation showing the attorney fees and expenses incurred to file the
Motion. By March 23, 2018, Plaintiff’s counsel shall respond to the
documentation and submit any additional evidence and argument on the
question of ordering Plaintiff’s counsel to pay fees and expenses incurred
by Defendant Fox in filing the Motion. The Court will thereafter determine
Page 6 of 7
whether to order Plaintiff’s counsel to pay such fees and expenses and the
amount, if any, to be paid.
ENTER: February 9, 2018
s/ Tom Schanzle-Haskins
TOM SCHANZLE-HASKINS
UNITED STATES MAGISTRATE JUDGE
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