Wynn et al v. Express, LLC

Filing 70

WRITTEN Opinion entered by the Honorable James F. Holderman on 12/15/2011: For the reasons set forth in the Statement section of this order, "Express" Objection to the Magistrate Judge's November 17, 2011 Order" 58 is overruled. Plaintiffs' reply brief in support of their "Amended Motion for Conditional Collective Action Certification" 54 is due on or before 1/6/2012. The Court will rule electronically and set further dates at the time of ruling. Signed by the Honorable James F. Holderman on 12/15/2011: Mailed notice (am)

Order Form (01/2005)

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

James F. Holderman

CASE NUMBER

11 C 4588

CASE
TITLE

Sitting Judge if Other
than Assigned Judge

DATE

12/15/2011

Eric Wynn vs. Express, LLC

DOCKET ENTRY TEXT

For the reasons set forth in the Statement section of this order, “Express’ Objection to the Magistrate Judge’s
November 17, 2011 Order” [58] is overruled. Plaintiffs’ reply brief in support of their “Amended Motion for
Conditional Collective Action Certification” [54] is due on or before 1/6/2012. The Court will rule
electronically and set further dates at the time of ruling.

O[ For further details see text below.]

Docketing to mail notices.

STATEMENT
Pending before this court is defendant Express LLC’s (“Express”) “Objection to the Magistrate
Judge’s November 17, 2011 Order.” (Dkt. No. 58.) In her November 17, 2011 order, Magistrate Judge
Susan E. Cox granted, in part, Plaintiffs’ motion to compel and ordered Express to produce Tina Gardea for
deposition in El Paso, Texas. Specifically, Magistrate Judge Cox ordered, “Defendant is ordered to
determine if Ms. Gardea requires a subpoena and, if so, defendant is to subpoena her to sit for a second
scheduled deposition. Defendant is also ordered to pay the court reporter costs.” (Dkt. No. 56.)
It is undisputed that Gardea is a current employee of Express whom Plaintiffs seek to depose
regarding the procedures at Gardea’s Express store for making night deposits. It is also undisputed that
Express agreed to the scheduling of Gardea’s deposition for November 11, 2011, in El Paso, Texas, that
Magistrate Judge Cox ordered Gardea’s deposition to proceed as agreed, that both parties believed Gardea
would appear at the November 11, 2011 deposition, and that Gardea informed counsel for Express only the
evening before her scheduled deposition that she would not be appearing.
In light of Gardea’s apparent reluctance to testify, Plaintiffs sought an order from Magistrate Judge
Cox “compelling [Express] to comply with this Court’s Order setting forth the schedule of depositions in this
matter.” (Dkt. No. 51.) At the hearing on Plaintiffs’ motion to compel, Magistrate Judge Cox recognized
that neither Plaintiffs nor Express had been aware of the need to subpoena Gardea prior to her deposition.
Magistrate Judge Cox determined, however, “that this problem[ ] lies at Express’s doorstep and not at the
plaintiffs’.” (Dkt. No. 60-2 (“11/17/2011 Tr.”) at 19:3-4.) Magistrate Judge Cox emphasized the failure of
Express’s counsel to explain to Gardea that she was required to appear because she had already agreed to do
so, and that “if you don’t appear today by agreement as you told us you would, the plaintiff is going to
subpoena you and you’re going to have to appear anyway.” (Id. at 8:6-9.) Magistrate Judge Cox also
repeatedly expressed her determination that “this problem could have been avoided with a little inquiry of
11C4588 Eric Wynn vs. Express, LLC

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this employee” by Express’s counsel. (Id. at 19:11-12; see also 25:15; 28:15-16.) Magistrate Judge Cox
then ordered Express to determine if Gardea would voluntarily appear for a second scheduled deposition and,
if necessary, to subpoena her. Magistrate Judge Cox also assigned costs for the court reporter to Express.
When considering an objection to a magistrate judge’s ruling on a non-dispositive issue, this court
will “set aside any part of the order that is clearly erroneous or is contrary to law.” Fed. R. Civ. P. 72(a).
This standard is “a high hurdle for those seeking to set aside magistrate judge orders on non-dispositive
issues” because “the purpose for referral of such matters to magistrate judges would be thwarted if parties
were entitled to de novo review and a second chance to argue discovery disputes already decided.” Nat’l
Educ. Corp. v. Martin, No. 93 C 6247, 1994 WL 233661, at *1 (N.D. Ill. May 26, 1994) (Marovich, J.).
“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.” Weeks v. Samsung
Heavy Indus. Co., Ltd., 126 F.3d 926, 943 (7th Cir. 1997).
The Federal Rules of Civil Procedure permit courts to apportion “reasonable expenses” associated
with motions to compel. Fed. R. Civ. P. 37(a)(5)(C). In this case, having concluded that Express was most
at fault for the failure of Gardea’s deposition to proceed as scheduled, Magistrate Judge Cox assigned a
portion of the costs associated with Gardea’s second deposition to Express, including the cost of the court
reporter and the subpoena. This determination is neither clearly erroneous nor contrary to law.
Express also takes issue with Magistrate Judge Cox’s order that Express subpoena Gardea to appear
at her second scheduled deposition, if necessary. This court respectfully disagrees with Express’s position
that “[t]his was Plaintiffs’ deposition, and Express had no obligation or ability to compel [Gardea’s]
appearance.” (Dkt. No. 58 at 9.) Express did have an obligation to produce Gardea, as fully explained by
Magistrate Judge Cox. When parties agree to a deposition schedule, the Federal Rules of Civil Procedure do
not require the use of a subpoena. See Fed. R. Civ. P. 30(a) (“The deponent’s attendance may be compelled
by subpoena under Rule 45.”) (emphasis added). As Magistrate Judge Cox explained, “When I sign that
order [entering the deposition schedule], I assume that those depositions were going to go forward as you
committed to do.” (11/17/2011 Tr. at 26:5-6.) This court finds no error in Magistrate Judge Cox’s reasoning
or application of the law in this case. To the extent Express is concerned about the potentially negative
consequences of subpoenaing its own employee to sit for a deposition, this court encourages counsel for
Express to follow Magistrate Judge Cox’s advice and “[t]ell [Gardea] Judge Cox is saying to her, she has
nothing to fear from her testimony.” (11/17/2011 Tr. at 25:3-4.)
For the reasons set forth above, Express’s “Objection to the Magistrate Judge’s November 17, 2011
Order” (Dkt. No. 58) is overruled.

Courtroom Deputy
Initials:

11C4588 Eric Wynn vs. Express, LLC

A.M.M.

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