Cozad v. Illinois Department of Corrections et al

Filing 29

ORDER granting 21 Motion for Sanctions. As set forth in the written Order, the Court sanctions the IDOC pursuant to Rule 37(b) for its failure to comply with the order of March 30, 2017, and, pursuant to Rule 37(b)(2)(A) & (C), as that sanction or ders as follows: 1) The IDOC shall produce the documents identified in the Plaintiff's Requests 10 and 11 within 7 days of entry of this Order; 2) the IDOC shall reproduce Warden Dorethy for a second deposition and pay Cozad's costs and leg al fees associated with that second deposition; 3) the IDOC shall produce Edward Jackson and Brian Adams for depositions prior to the close of discovery; and 4) the IDOC shall pay Cozad's costs associated with bringing of its motion for sanction s. The Court further orders that Cozad's counsel shall within 7 days of this Order file an affidavit setting forth the reasonable expenses and costs associated with the bringing of the motion for sanctions. The IDOC shall have 7 days after the f iling thereof to make any objection to the reasonableness of those expenses and costs. If the IDOC files no objection, it shall remit to Cozad's counsel the requested amount within 21 days of this Order. Failure of the IDOC to comply with this O rder, including adhering to the deadlines set forth herein, will result in the imposition of additional sanctions, which may include the more severe sanctions set forth in Rule 37(b)(2)(i)-(vii). Entered by Magistrate Judge Jonathan E. Hawley on 9/22/2017. (Hawley, Jonathan)

E-FILED

Friday, 22 September, 2017 04:09:43 PM
Clerk, U.S. District Court, ILCD

IN THE
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
PEORIA DIVISION
STACEY COZAD,
Plaintiff,
v.

Case No. 4:16-cv-04131-SLD-JEH

ILLINOIS DEPARTMENT OF
CORRECTIONS, et al.,
Defendant.
Order
Before the Court is the Plaintiff Cozad’s motion for sanctions pursuant to
Federal Rule of Civil Procedure 37(b). (D. 21) 1. For the reasons stated, infra, the
motion is GRANTED.
I
On March 15, 2017, Cozad filed a motion (D. 18) seeking to compel discovery
responses from the Defendant Illinois Department of Corrections (IDOC). The
motion sought an order compelling the IDOC to produce discovery that Cozad
had requested from the IDOC on October 31, 2016, which included a request for
all emails sent to or received from Warden Dorethy and Tammy Morgan that
referenced Cozad. This Court granted the motion, ordering the IDOC to provide
the outstanding discovery on or before May 1, 2017. To this day, the emails have
never been produced. Moreover, at Dorethy’s deposition on June 6, 2017—a full
month after the deadline for producing the outstanding emails—Dorethy testified
that no one had ever asked her to produce the emails.

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Citations to the Docket in this case are cited as “(D. __ at ECF p. __).”

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In light of the IDOC’s failure to comply with Cozad’s initial discovery
request and this Court’s subsequent order, Cozad seeks sanctions pursuant to
Federal Rule of Civil Procedure 37(b). Specifically, Cozad seeks as sanctions:
1. A finding that the Defendants have failed to comply with their
discovery obligations even after an order was entered compelling
them to do so.
2. Ordering the IDOC to produce the documents identified in
Requests 10 and 11 immediately.
3. An order requiring the IDOC to reproduce Warden Dorethy for a
second deposition so that the undersigned can inquire as to the
information that is contained in the emails that should have been
produced prior to her last deposition.
4. An order requiring the IDOC to pay the costs and legal fees
associated with the second deposition of Warden Dorethy.
5. An order requiring the IDOC to produce Edward Jackson and Brian
Adams for depositions prior to the close of discovery.
6. An order requiring the IDOC to pay Cozad's costs associated with
bringing this motion.
(D. 21 at ECF p. 4).
The IDOC responds that its failures were not willful or in bad faith and,
accordingly, sanctions “are not substantially justified.” (D. 26 at ECF p. 2). It also
asserts that it has finally performed the search for the requested emails and is in
the process of reviewing them for relevance and privilege, although the IDOC does
not provide the Court with an estimate of when this review might be completed.
Finally, regarding the request to re-depose Dorethy, the IDOC blames Cozad for
any need to do so, arguing that Cozad should have filed a motion with the Court

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prior to that deposition if she believed the IDOC’s discovery responses were
sufficient.
In reply, Cozad notes that the IDOC fails to apply the proper legal standard
for imposing sanctions here, Rule 37, which does not require a showing of bad
faith. She also notes that the IDOC’s response does not contest any of the facts
supporting the imposition of sanctions here. Finally, she argues that she did not
know that the IDOC’s discovery responses were deficient until the deposition of
Dorethy, where she first learned that no one had even attempted to comply with
the Court’s order.
II
A
Rule 37 permits a number of different sanctions for a party’s failure to
comply with a Court’s discovery order. Fed. R. Civ. P. 37(b)(2)(A). Moreover,
“instead of or in addition to” any sanction a court may impose, “the court must
order the disobedient party . . . 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).
Under Rule 37, sanctions are justified here. The initial request for the emails
in question was made almost a year ago and it was two months between this Court
ordering the production of the emails and Dorethy’s deposition when Cozad
learned that she had not even been asked to look for the emails. Now, three months
after her deposition and over two months since the motion for sanctions was filed,
the emails have still not been produced. Rather, the IDOC asserts it has finally
performed the search it should have made nearly a year ago but does not even
attempt to estimate when it will actually produce the emails. The IDOC provides
no explanation, let alone justification, for its failure to look for the emails in
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question after this Court ordered it to produce them. Whether the IDOC ignored
this Court’s order through negligence or bad faith, sanctions are justified.
B
Having concluded that sanctions are appropriate, the Court must next
consider what an appropriate sanction is. Although the willfulness of a party’s
violation of a court order is not relevant to whether sanctions should be imposed,
it is relevant to what sanction a court should impose. Tamari v. Bache & Co., 729
F.2d 469, 474-75 (7th Cir. 1984), citing Societe Internationale v. Rogers, 357 U.S. 197,
208, 78 S.Ct. 1087, 1094, 2 L.Ed.2d 1255 (1958); Marquis v. Chrysler Corp., 577 F.2d
624, 642 (9th Cir. 1978).
In the present case, there is no evidence that the IDOC’s failure to follow this
Court’s order was willful or in bad faith. Rather, it is clear that the IDOC’s failure
to comply was through neglect. Accordingly, the more severe sanctions set forth
in Rule 37(b)(2)(i)-(vii) are not warranted, nor does Cozad seek such sanctions.
Rather, Cozad seeks only the information that has yet to be produced, an
opportunity to depose Dorethy and others with the benefit of that information,
and recovery of its fees and costs created by IDOC’s sanctionable conduct. Cozad’s
suggested sanctions are reasonable, non-punitive, and directly related to the
sanctionable conduct. Moreover, her request for reasonable expenses caused by
the IDOC’s failure is required by Rule 37(b)(2)(C), “unless the failure was
substantially justified or other circumstances make an award of expenses unjust.”
The IDOC has offered nothing to suggest that its failures fall within these
exceptions.
Accordingly, the Court sanctions the IDOC pursuant to Rule 37(b) for its
failure to comply with this Court’s order of March 30, 2017, and, pursuant to Rule
37(b)(2)(A) & (C), as that sanction orders as follows:
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1. The IDOC shall produce the documents identified in Requests 10
and 11 within 7 days of entry of this Order;
2. The IDOC shall reproduce Warden Dorethy for a second deposition
and pay Cozad’s costs and legal fees associated with that second
deposition;.
3. The IDOC shall produce Edward Jackson and Brian Adams for
depositions prior to the close of discovery;
4. The IDOC shall pay Cozad's costs associated with bringing of its
motion for sanctions.
The Court further orders that Cozad’s counsel shall within 7 days of
this Order file an affidavit setting forth the reasonable expenses and costs
associated with its bringing of the motion for sanctions. The IDOC shall
have 7 days after the filing thereof to make any objection to the
reasonableness of those expenses and costs. If the IDOC files no objection,
it shall remit to Cozad’s counsel the requested amount within 21 days of
this Order.
Failure of the IDOC to comply with this Order, including adhering
to the deadlines set forth herein, will result in the imposition of additional
sanctions, which may include the more severe sanctions set forth in Rule
37(b)(2)(i)-(vii).
It is so ordered.
Entered on September 22, 2017
s/Jonathan E. Hawley
U.S. Magistrate Judge

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