Lowe et al v. CVS Pharmacy, Inc. et al
MEMORANDUM Opinion and Order Signed by the Honorable John Z. Lee on 1/30/17. Mailed notice(ca, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
CARL LOWE and KEARBY KAISER,
on behalf of themselves and others
CVS PHARMACY, INC.,
MINUTECLINIC, LLC, and WEST
14 C 3687
Judge John Z. Lee
MEMORANDUM OPINION AND ORDER
Plaintiffs Carl Lowe and Kearby Kaiser (“Plaintiffs”), on behalf of themselves
and others similarly situated, have brought this action against CVS Pharmacy, Inc.,
MinuteClinic, LLC, and West Corporation (“Defendants”). Plaintiffs’ claims arise
under the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227, and the
Illinois Automatic Telephone Dialers Act (ATDA), 815 Ill. Comp. Stat. 305/1 et seq.
They allege Defendants used an automated dialing system to place unsolicited,
prerecorded calls to Plaintiffs and others. Before the Court are Plaintiffs’ objections
to Magistrate Judge Mason’s order striking their request to exclude certain data
relevant to Defendants’ affirmative defense of consent, as well as Plaintiffs’ motion
to exclude additional untimely consent data, supplement their objections, and
compel explanation of data. For the following reasons, Plaintiffs’ objections 
are overruled and their motion  is denied.
The present dispute arises over data that Defendants have produced in
discovery that is relevant to their affirmative defense of prior express consent. Pls.’
Objection 1, ECF No. 189. In a joint filing before this Court on March 14, 2016,
Defendants represented that they would produce all consent data by April 15, 2016,
and requested that the close of fact discovery be extended to June 13, 2016. Joint
Mot. Extension Discovery Deadlines 7, ECF No. 146. The Court granted the parties’
request to extend the deadline for fact discovery “along the lines of the deadlines
that [were] proposed by the parties in the motion.” Hr’g Tr. of Apr. 5, 2016, 12:11–
16, ECF No. 182.
Defendants did not, however, adhere to the deadline for
producing consent data.
Rather, Defendants continued to produce consent data
after April 15 on a rolling basis, resulting in Plaintiffs’ receipt of the “bulk” of
Defendants’ consent data between April 22, 2016, and May 12, 2016, and thereby
reducing the amount of time between Plaintiffs’ receipt of the data and the close of
fact discovery. Pls.’ Objection at 2.
Initially, on April 21, 2016, Plaintiffs moved before Magistrate Judge Mason
to have all late-produced consent data excluded or, in the alternative, immediately
Pls.’ Mot. Exclude or Compel Consent Materials, ECF No. 173.
Magistrate Judge Mason took their motion under advisement. Order of Apr. 25,
2016, ECF No. 176. Later, on May 9, 2016, Plaintiffs filed a supplemental status
report further elaborating the prejudice caused by Defendants’ delayed production.
Pls.’ Status Report, ECF No. 178.
On May 23, 2016, Magistrate Judge Mason
struck Plaintiffs’ motion to exclude the late-produced consent data, stating that
Defendants’ delayed production mooted Plaintiffs’ request to exclude. Order of May
23, 2016, ECF No. 187.
Plaintiffs filed objections to Magistrate Judge Mason’s
ruling soon thereafter before this Court.
More recently, on January 9, 2017, Plaintiffs moved to exclude additional
consent data that Defendants produced that day.
Defendants assert that they
produced this data as soon as possible after disclosing separate, corresponding call
data in December 2016. Defs.’ Resp. Pls.’ Mot. Exclude Addtl. Untimely Consent
Data 1–2, ECF No. 267. In addition, Plaintiffs supplemented their objections to
Magistrate Judge Mason’s order and requested that the Court order Defendants to
explain certain aspects of the call and consent data.
The Court reviews a magistrate judge’s order on a nondispositive pretrial
matter only to determine whether it is “clearly erroneous or contrary to law.” Fed.
R. Civ. P. 72(a). Under this standard, a 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., 126 F.3d 926,
943 (7th Cir. 1997).
Thus, an objecting party must satisfy a heavy burden in
persuading the Court to modify the magistrate judge’s ruling. Finwall v. City of
Chi., 239 F.R.D. 504, 506 (N.D. Ill. 2006).
It is within the Court’s discretion to exclude evidence on the basis of
discovery violations, including missed deadlines. Id. at 506–07. But such exclusion
is not required if the violation is either substantially justified or harmless. David v.
Caterpillar, Inc., 324 F.3d 851, 857 (7th Cir. 2003).
In determining whether
exclusion is appropriate, the Court considers the following factors: (1) prejudice or
surprise to the party against whom the nondisclosed evidence is offered; (2) the
ability of the harmed party to cure the prejudice; (3) the likelihood of disruption at
trial; and (4) the bad faith or willfulness involved in not disclosing the evidence at
an earlier date. Keach v. U.S. Trust Co., 419 F.3d 626, 640 (7th Cir. 2005).
Plaintiffs lodge two primary objections to Magistrate Judge Mason’s order
denying their motion to exclude. First, Plaintiffs argue the order did not consider
whether, under Rule 16, there was “good cause” to extend the parties’ agreed
deadline for Defendants to produce consent data.
Pls.’ Objection at 7.
argument, however, was not presented before the magistrate judge. Arguments not
raised before a magistrate judge are waived and cannot be raised in objecting to the
judge’s order. Finwall, 239 F.R.D. at 506 (citing United States v. Melgar, 227 F.3d
1038, 1040 (7th Cir. 2000)).
And in any case, even assuming that Defendants
violated Rule 16, 1 Plaintiffs have not demonstrated that denying exclusion was
clearly erroneous, as the Court explains below.
Plaintiffs’ second objection to Magistrate Judge Mason’s order is that he did
not consider the prejudice they suffered as a result of Defendants’ delayed
production, which Plaintiffs contend warrants exclusion. Pls.’ Objection at 9. As a
threshold matter, Plaintiffs bemoan the magistrate judge’s ruling on their motion to
exclude “without presentment, briefing, or a hearing.” Id. at 13. Substantively,
Plaintiffs assert that they were prejudiced by Defendants’ delayed production of
substantially more consent data than Defendants had previously represented, such
that “Plaintiffs [had] substantially less time than previously budgeted to analyze
and review exponentially more consent data than disclosed, and to complete
necessary discovery on that issue.”
Id. at 10.
Plaintiffs further note that
Defendants’ “scattershot” production of consent data on a rolling basis and in an
unsatisfactory format reduced the amount of time Plaintiffs’ expert had to analyze
the data in advance of the close of fact discovery. Id. To that end, Plaintiffs assert
Defendants attempt to sidestep Plaintiffs’ allegation of a Rule 16 violation by
suggesting the April 15, 2016 deadline was not outlined in a “clear court order.” Defs.’
Resp. Pls.’ Objection 15, ECF No. 201. This argument, however, borders on the frivolous.
The Seventh Circuit has made clear that parties must adhere to representations in the
discovery process made to the court with or without a court order acknowledging those
representations. See Charter House Ins. Brokers, Ltd. v. N.H. Ins. Co., 667 F.2d 600, 604
(7th Cir. 1981); Sommerfield v. City of Chi., 251 F.R.D. 353, 357 (N.D. Ill. 2008). And in
any event, when the Court granted the parties’ request to extend the deadline for fact
discovery, it did so “along the lines of the deadlines that are proposed by the parties in the
motion.” Hr’g Tr. of Apr. 5, 2016, 12:11–16. This provided sufficient notice that the Court
expected the parties to adhere to the deadlines they had represented to the Court and to
notify the Court if adherence was impossible.
that they did not have sufficient time to prepare for depositions with the benefit of
having analyzed the data. Id. at 7.
First, in regard to Plaintiffs’ complaint that Magistrate Judge Mason did not
afford them the opportunity for presentment, briefing, or a hearing, the record
belies the notion that the magistrate judge did not afford Plaintiffs an opportunity
to expound their claims of prejudice.
Not only did the magistrate judge take
Plaintiffs’ initial motion under advisement—meaning he considered the motion,
which included claims of prejudice, without affording Defendants an opportunity to
formally respond—but Plaintiffs also submitted a status report discussing their
pending motions that containing an exhibit in which their expert outlined the
difficulties caused by Defendants’ delayed production.
Based on the record,
Magistrate Judge Mason gave Plaintiffs ample opportunity to present their claims
With these claims of prejudice in mind, Magistrate Judge Mason concluded
that Defendants’ production of the data at issue, even though delayed, was
sufficient to resolve the matter. And while his entry striking Plaintiffs’ motion did
not discuss prejudice, the magistrate judge’s decision to deny exclusion was not
clearly erroneous in light of Plaintiffs’ arguments. While Plaintiffs describe in such
detail the amount of data Defendants delayed in producing and the difficulties that
the amount and form of this data presented, Plaintiffs have not identified any areas
of fact discovery that they were unable to explore, nor any depositions they believe
were incomplete or unsatisfactory, due to Defendants’ delayed production and
Plaintiffs’ resulting inability to analyze the data at issue. As the Court told the
parties before Plaintiffs filed their objections, “To the extent that anyone needs to be
redeposed because of various discovery issues, so be it.
And [the Court] will
entertain requests to assess costs and fees with regard to any depositions that need
to be done again due to any non-compliance with the discovery deadlines.” Hr’g Tr.
of May 25, 2016, 12:17–21, ECF No. 213. Plaintiffs have not, however, requested
any such relief, 2 thus undermining their claims of prejudice. The Court declines to
order the more drastic remedy of excluding the data entirely. See Charles v. Cotter,
867 F. Supp. 648, 655 (N.D. Ill. 1994) (declining to exclude evidence produced after
the close of discovery where plaintiff failed to assert prejudice beyond untimeliness
and did not seek a lesser, more proportionate remedy).
What is more, in their later motion to exclude more recent consent data,
Plaintiffs state that their expert “was able to timely develop and make a report as to
the call data that CVS provided, [but] he was pressed for time.”
Addtl. Untimely Consent Data, Supplement Objections, and Compel Explanation of
Data 2, ECF No. 265. While it is unclear whether this refers to earlier consent data
or only the most recent call or consent data in question, Plaintiffs do not claim that
their expert was unable to analyze any of the data at issue. Moreover, Defendants
As an alternative to exclusion of the consent data, Plaintiffs have requested
additional interrogatories and document requests, as well as a continuance for consentrelated Rule 30(b)(6) depositions. Pls.’ Reply Supp. Objection 13, ECF No. 216. To the
extent this alternative request is not moot, it is also denied without prejudice. Insofar as
Plaintiffs wish to further explore specific areas of fact discovery or redepose specific
individuals based on specific issues raised by late-disclosed data, they are at liberty to
petition the Court for such relief.
point out that “[w]hile Plaintiffs have previously claimed to need consent data in
advance of expert discovery . . . , their data expert has not provided any opinion
regarding the consent data that has been produced in this case.” Def.’s Resp. Mot.
Exclude Addtl. Data at 7.
Accordingly, on this record, the Court finds that
Plaintiffs have failed to demonstrate concrete, incurable prejudice.
Moreover, the remaining factors relevant to whether the data should be
excluded support Magistrate Judge Mason’s decision to deny exclusion. This case
has not progressed to a stage at which Defendants’ delayed production unduly
impedes Plaintiffs’ pursuit of their claims. See, e.g., von Pein v. Hedstrom Corp., No.
04 C 553, 2004 WL 2191601, at *4 (N.D. Ill. Sept. 23, 2004) (declining to impose the
“harsh remedy” of excluding late-produced discovery where “no trial date had been
set” and plaintiff “did not express any need for additional discovery precipitated by
the late arrivals”). Additionally, Plaintiffs have not argued—and the Court does
not find—that Defendants’ delay occurred in bad faith. According to Defendants,
their delayed production resulted from a combination of the volume of data
involved, difficulty in accessing and assembling the data, and Plaintiffs’ own delays.
Def.’s Resp. Objection at 1–4. In response, Plaintiffs point to the length of this
litigation and assert that Defendants have not been diligent in investigating their
affirmative defense of consent. Pls.’ Reply at 9. Although the Court agrees that
Defendants could have (and should have) investigated the available universe of
responsive documents in a more expeditious manner, the record is insufficient to
support wholesale exclusion of the data. See Berggruen v. Caterpillar Inc., No. 92 C
5500, 1995 WL 708665, at *6 (N.D. Ill. Nov. 29, 1995)
(finding that delay in
producing relevant evidence did not of itself constitute bad faith or unfair prejudice
Thus, Magistrate Judge Mason’s order was not clearly
Similar shortcomings lead the Court to deny Plaintiffs’ later motion to
exclude consent data that Defendants have more recently produced. Plaintiffs claim
that they “have been prejudiced by this late production,” but they acknowledge that
their expert was able to develop and analyze the data. Pls.’ Mot. Exclude Addtl.
Data at 2.
The prejudice they allege appears to amount to simple delay,
disappointment with the manner of the data’s production, and the feeling that they
are “still ‘on their heels.’”
On this record, such claims of prejudice are
insufficient to warrant the exclusion of relevant evidence. Additionally, Defendants
assert that they produced the data as soon as they could following Defendant West’s
discovery of previously undisclosed call data. Defs.’ Resp. Mot. Exclude Addtl. Data
at 1–2. Although it may have taken Defendants longer that it should have, the
facts do not support the draconian remedy of exclusion. Finally, Defendants further
assert that they have provided an explanation for codes as requested by Plaintiffs,
id. at 2, 8, and informed Plaintiffs that they did not make real-time order ready
calls prior to 2012, id. at 3, 9, thereby mooting Plaintiffs’ requests to compel these
For the foregoing reasons, Plaintiffs’ objections to Magistrate Judge Mason’s
order  are overruled and their motion to exclude additional untimely consent
data, supplement their objections, and compel explanation of data  is denied.
IT IS SO ORDERED.
John Z. Lee
United States District Judge
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