Ossola v. American Express Company

Filing 263

MEMORANDUM Opinion and Order Signed by the Honorable Jeffrey Cole on 3/2/2015:Mailed notice(jms, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JENNIFER OSSOLA, JOETTA
CALLENTINE, and SCOTT DOLEMBA on
behalf of themselves and all others similarly
situated,

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Plaintiffs,
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v.
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AMERICAN EXPRESS COMPANY,
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AMERICAN EXPRESS CENTURION BANK, )
WEST ASSET MANAGEMENT, INC., and
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ALORICA INC.,
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Defendants.
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No. 13 C 4836
Judge John Lee
Magistrate Judge Jeffrey Cole

MEMORANDUM OPINION AND ORDER
The plaintiffs have filed a motion to compel West Asset Management to produce certain
emails. [Dkt. #256]. The motion contains only the laconic and unamplified statement that “despite
plaintiffs’ good faith efforts to meet and confer West has refused to produce even a single email or
item of discovery related to the calls it has made, necessitating this motion to compel.”1 On the same
day, West filed a motion for a protective order providing that it not be forced to produce the emails
requested by the plaintiffs. [Dkt. #256]. Neither motion contains the “certification” required by Rule
26(c)(1) of the Federal Rules of Civil Procedure. Local Rule 37.2 provides that the court:
shall hereafter refuse to hear any and all motions for discovery and production of

1

What the good faith efforts consist of, when they occurred, and when and how they were apparently
rebuffed is not explained. And there is an obvious gap between a claim of good faith efforts to meet and
confer and the ultimate refusal to produce anything. What’s missing is the actual process of having conferred.
It is not clear whether West refused to meet. If that were true, Rule 37.2 would be satisfied. But, the motion
is devoid of any specifics that would support the conclusion that the plaintiffs acted responsibly but West
did not. Rule 37, by its rather plain terms, does not permit the sort of guesswork the plaintiffs’ motion
requires.

documents under Rules 26 through 37 of the Federal Rules of Civil Procedure, unless
the motion includes a statement (1) that after consultation in person or by telephone
[letters and emails don’t count] and good faith attempts to resolve differences they
are unable to reach an accord, or (2) counsel's attempts to engage in such consultation
were unsuccessful due to no fault of counsel's. Where the consultation occurred, this
statement shall recite, in addition, the date, time and place of such conference, and
the names of all parties participating therein. Where counsel was unsuccessful in
engaging in such consultation, the statement shall recite the efforts made by counsel
to engage in consultation. (Emphasis supplied).
“The purpose of the rule is to curtail undue delay and expense in the administration of justice.
The Rule ultimately rests on what Holmes called the shortness of life and the reality that there is a
never-ending procession of cases that compete for judicial attention. If the parties can resolve the
issue, the court's time is saved and available to be directed to those cases that present issues that
cannot be amicably resolved. Each hour needlessly spent on a dispute is an hour squandered.
‘Litigation is costly not only for the litigants but also for parties in other cases waiting in the queue
for judicial attention.’ This is a problem that the Seventh Circuit has repeatedly adverted to...”
Paulcheck v. Union PAC. R. Co., 2010 WL 1727856, at *1 (N.D.Ill. 2010)(citations omitted).
Accord Chamberlain Group v. Lear Corp., 2010 WL 2836975, 1 -2 (N.D.Ill. 2010)(St. Eve,
J.)(citing and quoting Paulcheck).
Since neither motion satisfies the requirements of Rule 26 or Local Rule 37.2, both motions
are denied without prejudice. The parties are ordered, at their convenience, to have the face-to-face
conference required by the Rules. They are further required following that conference should the
present disputes remain unresolved to file a statement that complies with the expanded procedures
set forth in Autotech Technologies Ltd. Partnership v. Automationdirect.Com, Inc., 2007 WL
2713352, *1-2 (N.D.Ill. 2007). See also Miller UK Ltd. v. Caterpillar, Inc., 292 F.R.D. 590, 591
(N.D.Ill. 2013).
2

Finally, the approach taken by the parties to the briefing is designed not to conserve judicial
resources but to enable each side to have the last word. As things now stand there are two sets of
briefs on the disputed issue rather than one. So each side now gets a reply brief. The upshot of this
artificial structuring is that instead of there being three briefs on the discoverability of the emails,
there are six. That is three too many.
The plaintiffs’ motion to compel [Dkt. #258] and West Asset’s motion for protective order
[Dkt. #256], both filed on 2/24/15, are denied without prejudice. Strategic filing to gain the last word
will not be permitted. The presently scheduled presentment dates of 3/3/15 and 3/5/15 are stricken
and no appearance will be necessary. The parties, of course, are free to renew the question of the
producability of the disputed emails if they cannot resolve their dispute and as long as there is
compliance with this Order.

ENTERED:
UNITED STATES MAGISTRATE JUDGE

DATE: 3/2/15

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