Liu v. County of Cook et al
Filing
248
MEMORANDUM Opinion and Order: The Court overrules defendants' objection 233 to Judge Mason's October 8, 2013 order and lifts the stay of discovery. The Court grants defendants until December 4, 2013 to depose Drs. Campbell and Renta. Signed by the Honorable George M. Marovich on 11/6/2013:Mailed notice(clw, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
KATHERINE LIU,
Plaintiff,
v.
COUNTY OF COOK, et. al.,
Defendants.
)
)
)
) Case No. 10 C 6544
)
) Judge George M. Marovich
)
)
)
MEMORANDUM OPINION AND ORDER
Defendants have objected to a discovery order issued by Magistrate Judge Mason. In the
order, Judge Mason granted plaintiff’s motion to allow the late disclosure of two witnesses. For
the reasons set forth below, the Court overrules defendants’ objections.
I.
Background
Seven days before the deadline for filing dispositive motions, plaintiff Katherine Liu
(“Liu”) filed a motion for leave to disclose two additional witnesses. Specifically, Liu requested
permission to disclose Darrell A. Campbell, Jr., M.D. (“Dr. Campbell”) as a rebuttal expert
witness and Dr. Vivian J. Renta (“Dr. Renta”) as a rebuttal fact witness.
Judge Mason allowed the disclosure. In his order, Judge Mason noted that a trial date
had not yet been set and that “any minimally resulting prejudice can be cured by plaintiff
providing the proper disclosures and allowing defendants the opportunity to depose the witnesses
should they so choose.” (Judge Mason’s October 8, 2013 Order at 2). When Judge Mason
allowed the disclosure, he also set a deadline of November 13, 2013 for the completion of the
depositions of Drs. Campbell and Renta.
Defendants filed timely objections to Judge Mason’s October 8, 2013 Order. In addition,
defendants filed a motion to stay discovery so that it could wait until this Court rules on this
motion before taking the depositions of Drs. Campbell and Renta. The Court granted the motion
for stay.
II.
Standard of review
When a party timely objects to a pretrial, non-dispositive ruling by a magistrate judge,
the district judge must “modify or set aside any part of the order that is clearly erroneous or is
contrary to law.” Fed.R.Civ.P. 72(a). “These standards do not necessarily restrict district court
review of a magistrate’s findings.” United States v. Frans, 697 F.2d 188, 191 n. 3 (7th Cir.
1983). A district court is allowed to conduct “a full review.” Id.
III.
Discussion
The parties agree that plaintiff’s disclosure of Drs. Campbell and Renta was made after
the deadline for disclosing those witnesses. This late disclosure is subject to Rule 37(c)(1), such
that plaintiff “is not allowed to use th[ese] . . . witness[es] to supply evidence on a motion, at a
hearing, or at a trial, unless the failure was substantially justified or is harmless.” Fed.R.Civ.P.
37(c)(1) (emphasis added); see also Finley v. Marathon Oil Co., 75 F.3d 1225, 1231 (7th Cir.
1996). Courts have “broad discretion” in determining whether a late disclosure is harmless, and,
in considering the matter, a court should consider such factors as: “(1) the prejudice or surprise
to the party against whom the evidence is offered; (2) the ability of the party to cure the
prejudice; (3) the likelihood of disruption to the trial; and (4) the bad faith or willfulness
involved in not disclosing the evidence at an earlier date.” David v. Caterpillar, Inc., 324 F.3d
851, 857 (7th Cir. 2003).
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Magistrate Judge Mason applied the proper standard and considered the factors set out in
David in determining that the late disclosure was harmless. Judge Mason noted that he expected
little prejudice, because the witnesses were offered for a limited purpose. In addition, Judge
Mason determined that the minimal prejudice could be cured by allowing defendants time to
depose the two newly-disclosed witnesses. Although this Court might have reached a different
conclusion if it were considering this issue in the first instance, that is not the standard of review.
This Court cannot say that Judge Mason’s decision was clearly erroneous or that his discretion
was exercised in a manner that was contrary to law. Accordingly, the Court overrules
defendants’ objection.
The Court understands that the parties are in the middle of briefing defendants’ motion
for summary judgment. Plaintiff has said that the disclosure of these witnesses will not, from
plaintiff’s perspective, affect the summary judgment schedule, and the Court takes her at her
word. If defendants find that their ability to file their reply brief on time is affected by the
disclosure of these two witnesses, they may file a motion for extension of time.
Finally, the Court lifts the previously-granted stay of discovery and grants defendants
until December 4, 2013 to depose Drs. Campbell and Renta, should they so choose.
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IV.
Conclusion
For the reasons set forth above, the Court overrules defendants’ objection [233] to Judge
Mason’s October 8, 2013 order and lifts the stay of discovery. The Court grants defendants until
December 4, 2013 to depose Drs. Campbell and Renta.
ENTER:
George M. Marovich
United States District Judge
DATED: November 6, 2013
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