Lerman v. Columbia College Chicago et al

Filing 100

WRITTEN Opinion entered by the Honorable Joan H. Lefkow on 1/26/2012:Plaintiffs objections to the order of the magistrate judge 91 are overruled. Mailed notice(mad, )

Order Form (01/2005)

United States District Court, Northern District of Illinois
Name of Assigned Judge
or Magistrate Judge

Joan H. Lefkow

CASE NUMBER

10 C 2169

CASE
TITLE

Sitting Judge if Other
than Assigned Judge

DATE

1/26/2012

Lerman vs. Columbia College Chicago, et al.

DOCKET ENTRY TEXT

Plaintiff’s objections to the order of the magistrate judge [91] are overruled.

O[ For further details see text below.]

Notices mailed by Judicial staff.

STATEMENT
Plaintiff Zafra Lerman filed this action against Columbia College and certain of its officers (collectively,
“defendants”), claiming gender, national origin, and sex discrimination, civil rights violations, defamation,
and breach of contract, among other claims. Plaintiff has filed objections to an order of Magistrate Judge
Geraldine Soat Brown (89) denying her motion (82) for protective order regarding subpoenas addressed to
MIMSAD, Inc., a not-for-profit organization of which plaintiff is the president, treasurer, and sole
shareholder. The relevant facts are set out in the order and will not be repeated here other than as pertinent to
the issues.
The legal principles are succinctly summarized in Webb v. CBS Broad., Inc., No. 08 C 6241, 2011 WL
842743, at *2 (N.D. Ill. Mar 8, 2011) (internal citations and quotation marks omitted):
A district court’s review of any discovery-related decisions made by the magistrate judge is
governed by Rule 72(a) of the Federal Rules of Civil Procedure. Under Federal Rule of Civil
Procedure 72(a), a district judge may set aside a magistrate judge’s ruling on a non-dispositive
motion if the order is clearly erroneous or contrary to law. The clear error standard means that
the district court can overturn the magistrate judge’s ruling only if the district court is left with
the definite and firm conviction that a mistake has been made. In general, under the clearly
erroneous standard, if there are two permissible views of the facts, a district court’s choice
between them cannot be clearly erroneous.
Plaintiff contends that the ruling is clearly erroneous and contrary to law for five reasons, addressed below.
Argument (a). The ruling proceeds from a misstatement of the record.
Plaintiff takes issue with the following statement: “Although defendants have always been in possession of
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STATEMENT
the payment records to MIMSAD, they were only prompted to investigate their possible significance when
information about questionable grant payments to other entities came to light during the discovery process.”
(Dkt. No. 89, 2d para.). Plaintiff argues that the questionable payments at issue were described in “the Crowl
report” prepared before this litigation was filed and clearly known to defendants well before the disputed
subpoenas were issued. Judge Brown acknowledged as much in her discussion of the issues:
Although certain information about MIMSAD was apparently in defendants’ records,
defendants claim, in essence, that they just learned of the significance of MIMSAD and its
relationship to plaintiff. The fact that it took defendants until shortly before the close of
discovery to connect the dots does not justify cutting them off from a legitimate area of
discovery.
Whether to allow discovery to be made after the closing date is plainly a discretionary decision. This court
has no basis to conclude that, even if the magistrate judge misapprehended the facts (which does not appear
to be the case), extending discovery for otherwise relevant discovery is either clearly erroneous or contrary to
law. The objection is overruled.
Argument (b): The finding that the evidence is relevant to an after-acquired evidence defense is
clearly erroneous because the facts demonstrate that the evidence was not after-acquired.
Plaintiff seems to believe that, if the after-acquired evidence defense will certainly fail for lack of proof,
discovery of the issue should be foreclosed. Not so. As the magistrate judge correctly stated, “The stated
reason for plaintiff’s termination was misuse of grant monies that she managed. It is undisputed that
MIMSAD is controlled by plaintiff. Defendants’ inquiry into MIMSAD’s receipt of grant money that
plaintiff controlled appears to be a legitimate area of discovery reasonably related to the claims and defenses
here.”
Plaintiff cites no authority on which to base a finding that this conclusion is clearly erroneous or contrary to
law. MIMSAD’s receipt of grant money is relevant to the after-acquired evidence defense. See Fed. R. Civ.
P. 26(b)(1) (“Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s
claim or defense[.]”). No privilege has been claimed. This objection is overruled.
Argument (c): There is no evidence in the record why the allegedly after-acquired evidence would
have provided a basis for termination of plaintiff’s employment.
Whether the evidence sought would have been a basis for termination is an issue of fact that may one day be
presented to a jury. A court may not foreclose discovery of a relevant matter because it believes the evidence
will ultimately be insufficient to prove a claim or defense. As Judge Brown stated in her order (regarding
issue (d) below), “Defendants should be permitted to take the discovery they seek . . . before they are
required to state whether they believe there was misconduct associated with them.” This objection is
overruled.
Argument (d): Defendants should be required to give plaintiff notice and discovery of why they
contend that payments to MIMSAD were improper before plaintiff sits for a 30(b)(6) deposition.
Plaintiff seeks a protective order requiring defendants to disclose in advance of the 30(b)(6) deposition of
MIMSAD the basis for their contention that MIMSAD’s receipt of funds from Columbia College was
wrongful or related to any claims or defenses. The magistrate judge denied this motion stating in part,
“Plaintiff’s argument misapprehends the requirements of Rule 30(b)(6) . . . . The purpose of the deposition is
not to find out what Columbia has, but to find out what MIMSAD has.” Plaintiff cites Uresil Corp. v. Cook
Group, Inc., 135 F.R.D. 168, 171 (N.D. Ill. 1991), for the proposition that discovery is designed for full
disclosure so as to reduce the possibility of surprise. That discussion arose in the context of whether an
expert witness had fully answered interrogatories and gives no particular guidance here. Suffice it to say, all
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STATEMENT
parties to litigation would prefer to control the order of disclosures in discovery so as to find out what the
other side has before providing information. There is nothing in the facts presented here that indicate any
reason why the magistrate judge was not correct in her decision not to allow it here. This objection is
overruled.
Argument (e): MIMSAD should not have to produce all schedules to its income tax returns.
The magistrate judge ordered that MIMSAD’s tax returns with all schedules be produced because “not only
the amount of income to MIMSAD but also the sources of that income are relevant to plaintiff’s allegations
that she has been damaged by defendants’ acts.” The damages claimed include loss of income and benefits,
loss of reputation, and damage to future employment prospects. The magistrate judge reasoned that because
MIMSAD’s income effectively flows to plaintiff, MIMSAD’s income is relevant to plaintiff’s damages.
This is not a clearly erroneous conclusion. Plaintiff cites no authority suggesting it is contrary to law. This
objection is overruled.

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