Smith et al v. City of Chicago et al
Filing
412
MEMORANDUM Opinion and Order signed by the Honorable Andrea R. Wood on 9/30/2019. Mailed notice (aw,)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DARNELL SMITH, et al.,
Plaintiffs,
v.
CITY OF CHICAGO, et al.,
Defendants.
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)
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No. 15-cv-03467
Judge Andrea R. Wood
MEMORANDUM OPINION AND ORDER
Darnell Smith and the other named plaintiffs in this putative class action (“Plaintiffs”)
have sued the City of Chicago (“City”), Chicago Police Superintendent Gary McCarthy, and
various other named and unnamed Chicago Police Department (“CPD”) officers (collectively,
“Defendants”) for alleged violations of the Fourth Amendment to the United States Constitution,
as explained in the Supreme Court’s decision in Terry v. Ohio, 392 U.S. 1 (1968).1 Specifically,
Plaintiffs allege that the CPD has a policy and practice of conducting unconstitutional
investigatory stops without reasonable suspicion. To assist in defining their proposed classes,
Plaintiffs’ rely on the CPD’s use of Contact Information Cards (“contact cards”) to document
investigatory stops and enforcement of the City’s Gang and Narcotics-Related Loitering
Ordinances by police officers. Plaintiffs retained three expert witnesses to assist them in sorting
through more than three million contact cards produced in discovery by the CPD and defining
their class. Defendants ask the Court to exclude the testimony of all three experts. (Dkt. No.
1
In Terry, the Supreme Court held that under the Fourth Amendment, police officers may conduct a brief
investigatory stop (or Terry stop) but only with reasonable suspicion that an individual has committed, is
committing, or is about to commit a crime. Terry, 392 U.S. at 27; see also United States v. Williams, 731
F.3d 678, 683 (7th Cir. 2013) (citing Terry for the proposition that “[p]olice officers may detain a suspect
for a brief investigatory stop if they have a reasonable suspicion based on articulable facts that a crime is
about to be or has been committed” (internal quotation marks omitted)).
315.) Also before the Court are the City’s motion for sanctions for one expert’s purported failure
to disclose his methodology pursuant to Federal Rule of Civil Procedure 26(a)(2)(B)(i) (Dkt. No.
327), and Plaintiffs’ cross-motion for sanctions pursuant to 28 U.S.C. § 1927 (Dkt. No. 344). For
the reasons set forth below, Defendants’ motion to exclude Plaintiffs’ expert witnesses is granted
in part and denied in part, while both the City’s motion for sanctions and Plaintiffs’ cross-motion
for sanctions are denied.
BACKGROUND
In their Sixth Amended Complaint, Plaintiffs allege that Defendants have implemented,
applied, and continued to enforce a policy or custom of unconstitutional stops and frisks of
Chicago residents by the CPD, which have been conducted without the reasonable articulable
suspicion required by the Fourth Amendment. (Sixth Am. Compl. at Law (“SAC”) ¶ 3, Dkt. No.
177.) Plaintiffs allege that they reside in or visit neighborhoods where the CPD has conducted
these unconstitutional stops and frisks, and some of them claim to be victims themselves. (Id.
¶¶ 12–30.) In this putative class action, Plaintiffs seek to represent themselves and the “many
thousands of victims” of unconstitutional stops and frisks by CPD officers. (Pls.’ Mot. for Rule
23(b)(3) Class Certification (“Pls.’ Class Cert. Mot.”) at 7, Dkt. No. 277.)
Consistent with CPD Special Order S04-13-09 (“Special Order”), the CPD has used
contact cards to document investigatory stops and enforcement of the City’s Gang and NarcoticsRelated Loitering Ordinances. (Pls.’ Class Cert. Mot., Ex. 19.) Officers do not create a contact
card if the interaction results in a citation or arrest. (Pls.’ Class Cert. Mot. at 22.) Plaintiffs here
retained three expert witnesses to assist them in sorting through more than three million contact
cards produced by the CPD. Plaintiffs’ first expert, F. Eli Nelson, is a data analyst who used
keywords and Boolean logic to search and sort through the contact cards; for example, Nelson
2
identified certain cards as documenting “Unconstitutional Stops” and filtered out cards he
perceived as documenting “non-stops” and “Potentially Permissible Stops.” (Id. at 48–49.)
Plaintiffs offer their second expert, Timothy J. Longo, Sr., as a police-practices expert. (Id. at
53.) Longo reviewed over 10,000 contact cards randomly-selected from those identified by
Nelson as “Unconstitutional Stops” and, after reviewing the narrative section of each card,
purports to have confirmed whether the police officer indeed made an unconstitutional stop. (Id.
at 53–55.) Finally, Plaintiffs’ third expert, Andrew J. Cook, is a statistician who opines that
Longo reviewed enough individual contact cards to support a 95% confidence level in Nelson’s
methodology. (Id. at 55.)
Based on their experts’ testimony, Plaintiffs proposed six potential classes for
certification under Federal Rule of Evidence 23(b)(3):
(1) Fourth Amendment Class: All persons subjected to an investigatory stop by
the Chicago Police Department at any time since April 20, 2013, which resulted
in the creation of a contact card;
(2) All African-Americans and Hispanics subjected to an investigatory stop by
the Chicago Police Department at any time since April 20, 2013, which resulted
in the creation of a contact card;
(3) Fourth Amendment Class: All persons who were encountered by the Chicago
Police Department for enforcement of the Gang and Narcotics Loitering
Ordinance at any time since April 20, 2013, which resulted in the creation of a
contact card;
(4) All African-Americans and Hispanics who were encountered by the Chicago
Police Department for enforcement of the Gang and Narcotics Loitering
Ordinance at any time since April 20, 2013, which resulted in the creation of a
contact card;
(5) All persons subjected to an investigatory stop by the Chicago Police
Department at any time since April 20, 2013, which resulted in the creation of a
contact card that contains no narrative; and
3
(6) All African-Americans and Hispanics who were subjected to an investigatory
stop by the Chicago Police Department at any time since April 20, 2013, which
resulted in the creation of a contact card that contains no narrative.
(Id. at 57; Pls.’ Reply Brief in Support of their Mot. for Rule 23(b)(3) Class Certification at 17,
Dkt. No. 332.) For reasons explained in a prior Memorandum Opinion and Order, this Court
denied Plaintiffs’ motion for certification of the proposed Rule 23(b)(6) class. (Dkt. No. 388.) In
so ruling, the Court indicated that Plaintiffs could not use their proffered expert testimony to
support their claim to have identified a subset of contact cards that reflect unconstitutional stops.
The Court now expounds on that determination in ruling on the pending motions to exclude the
expert testimony and for sanctions.
DISCUSSION
I.
The City’s Motion to Exclude Expert Testimony
Federal Rule of Evidence 702 governs the admissibility of expert evidence in federal
court. It provides as follows:
A witness who is qualified as an expert by knowledge, skill, experience, training,
or education may testify in the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized knowledge
will help the trier of fact to understand the evidence or to
determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the
facts of the case.
Fed. R. Evid. 702. Under this rule, expert testimony must not only assist the trier of fact, it must
also demonstrate sufficient reliability. C.W. ex rel. Wood v. Textron, Inc., 807 F.3d 827, 834 (7th
Cir. 2015). “[T]he district court serves as a ‘gatekeeper’ whose role is to ensure that an expert’s
testimony is reliable and relevant.” Stuhlmacher v. Home Depot U.S.A., Inc., 774 F.3d 405, 409
4
(7th Cir. 2014). The Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc. laid out
four factors by which courts may evaluate the reliability of expert testimony: (1) whether the
expert’s conclusions are falsifiable; (2) whether the expert’s method has been subject to peer
review; (3) whether there is a known error rate associated with the technique; and (4) whether the
method is generally accepted in the relevant scientific community. 509 U.S. 579, 593–94 (1993).
This list is neither exhaustive nor mandatory and, ultimately, reliability is determined on a caseby-case basis. Textron, Inc., 807 F.3d at 835. The proponent of the expert testimony bears the
burden of demonstrating that the expert testimony satisfies the Daubert standard. Lewis v.
CITGO Petroleum Corp., 561 F.3d 698, 705 (7th Cir. 2009).
A.
F. Eli Nelson
The Court first considers Nelson’s proposed testimony. Nelson is the director of The
Claro Group, LLC, a data analytics firm experienced in analyzing large quantities of data for
litigation purposes. (Pls.’ Class Cert. Mot. at 48; see also id. Ex. 7.) Nelson and his associates
used keywords and Boolean2 search logic to search through more than three million contact cards
produced by the CPD and identify certain contact cards as “Unconstitutional Stop Candidates.”
(Pls.’ Mot. at 48–49.) Nelson sorted these contact cards into various categories based on “contact
type (e.g., loitering, public drinking etc.).” (Id. at 49.) He then applied filters to exclude “nonstops,” which he defined as encounters that were consensual or resulted in a citation or arrest,
and “Potentially Permissible Stops,” which he defined as encounters where the officer may have
had a reasonable articulable suspicion. (Id.) Nelson also applied a “Cautionary Exclusion Filter,”
2
Boolean search logic “combine[s] words and phrases using the words AND, OR, NOT (known as
Boolean operators) to limit, broaden, or define [the] search.” Shauntee Burns, What is Boolean Search?,
New York Public Library (February 22, 2011), https://www.nypl.org/blog/2011/02/22/what-booleansearch. Searchers may also use quotation marks around a specific phrase to find results that contain that
exact wording. Id.
5
which he based on “terms and phrases indicating a stop was potentially permissible or otherwise
made it difficult to definitely state the stop was unlawful.”3 (Id. at 50.) After filtering the contact
cards in this manner, Nelson labeled the remaining 368,436 contact cards as “Unconstitutional
Stops.” (Id. at 54.) Finally, Nelson divided the Unconstitutional Stops into six subcategories: (1)
loitering (in a hot spot), (2) loitering (not in a hot spot), (3) suspicious person, (4) responding to
call, (5) matches description, and (6) no narrative. (Id. at 55.) Plaintiffs constructed and proposed
their Rule 23(b)(3) classes based on Nelson’s searches and categorizations.4
The City argues that Nelson is unqualified and his methodology is insufficiently reliable
to determine whether a contact card documented an unconstitutional stop.5 Plaintiffs respond that
they only relied on Nelson’s testimony to identify presumptively, not conclusively,
unconstitutional stops. This is a distinction without a difference, however. As a general rule, an
expert may not offer legal opinions or conclusions that will determine the outcome of a case.
Jimenez v. City of Chi., 732 F.3d 710, 721 (7th Cir. 2013) (“When an expert offers an opinion
relevant to applying a legal standard such as probable cause, the expert’s role is limited to
describing sound professional standards and identifying departures from them.” (internal
quotations omitted)). And that is what Nelson purports to do here. Moreover, he claims to do so
3
Examples of such terms and phrases include “Cannabis,” “Disturbances/Weapons,” “Gambling,”
“Littering,” and “Public Drinking.”
4
To be clear, Plaintiffs’ counsel instructed Nelson as to what filters to use in his methodology; Nelson
merely conducted the searching and sorting. (Def. City of Chicago’s Mot. to Exclude F. Eli Nelson,
Timothy Longo, and Andrew Cook (“City’s Mot. to Exclude”) Ex. A at 166, Dkt. No. 315-1.)
5
Nelson has a law degree and practiced as an assistant district attorney between 1998 and 2000.
However, Nelson has never worked on any civil rights cases during his career and has not practiced
criminal law since 2000. Nor has he reviewed the law on investigatory stops since then. And Nelson
himself admits that he cannot state conclusively whether any particular narrative describes an
investigatory stop because “the sort of individualized scenario-by-scenario analysis . . . it’s just not as
much in my wheelhouse.” (City’s Mot. to Exclude Ex. A at 235–236.) Accordingly, Plaintiffs do not offer
Nelson’s testimony based on his legal expertise; instead, Plaintiffs enlisted Longo as an expert witness to
opine on the constitutionality of police conduct.
6
with no more information or context than what he found on the individual contact cards.
Accordingly, the Court excludes Nelson’s testimony to the extent that he claims his analysis
reveals whether and when a Terry stop or constitutional violation occurred.6
In excluding Nelson as an expert witness, however, the Court leaves open the possibility
that Nelson may be able to testify as a summary witness. Federal Rule of Evidence 1006 permits
a party to use a summary, chart, or calculation to prove the content of voluminous writings that
cannot be conveniently examined in court. Fed. R. Evid. 1006. A summary witness serves this
purpose by evaluating the voluminous writings and summarizing them to aid the factfinder. See,
e.g., United States v. Pree, 408 F.3d 855, 869 (7th Cir. 2005) (permitting IRS agent to
summarize government’s evidence about defendant’s tax evasion); E. Trading Co. v. Refco, Inc.,
No. 97 C 6815, 1999 WL 59979, at *2 (N.D. Ill. Feb. 2, 1999) (permitting witness to summarize
more than 14,000 pages of material). “When a summary witness simply testifies as to what [a
party’s] evidence shows, he does not testify as an expert witness.” Pree, 408 F.3d at 869.
Accordingly, the Court finds that Nelson’s testimony is admissible to the extent it is
offered only to summarize the textual contents of the contact cards—essentially, how many cards
were identified from various keyword and Boolean logic searches.7 See United States v. Blount,
502 F.3d 674, 680 (7th Cir. 2007) (“There is a difference between stating a legal conclusion and
providing concrete information against which to measure abstract legal concepts.”). If Plaintiffs
6
For example, Nelson apparently concluded that, “[d]uring the class period, the CPD engaged in a
minimum of 368,436 Unconstitutional Stops.” (Pls.’ Mot. at 54.) Such a legal conclusion is inadmissible.
7
For example, Nelson could testify that 471,339 contact cards list dates between April 20, 2013 and
December 2015, and 2,154 of that subset of contact cards have a blank narrative section. (Pls.’ Reply
Brief in Support of Their Motion for Rule 23(b)(3) Class Cert. at 29, Dkt. No. 332.) Similarly, Nelson
could testify that he conducted a keyword and Boolean logic search consisting of “((call* or complaint*
or person* or people) w/3 suspicious) and not ((complaint or observ* or saw or watched) w/4
(suspicious* or furtive or avoid*))” that identified 13,652 contact cards from the relevant time period.
(Pls.’ Mot. at 52; id. Ex. 7.)
7
elect to use him in that manner, Nelson must observe the limits of his role as a summary witness
by testifying only as to the text of the contact cards and withholding his opinion about the
constitutionality of the documented conduct.8
B.
Timothy J. Longo, Sr.
Plaintiffs offer Longo, their second expert witness, as a police practices expert. Longo
has been involved in law enforcement since 1981 and served as the Chief of Police for the City
of Charlottesville, Virginia from February 2001 until his retirement in May 2016. (Pls.’ Mot. at
53; see also id. Ex. 26.) For this case, Longo reviewed 10,440 randomly-selected contact cards
out of those identified by Nelson as “Unconstitutional Stops.” (Pls.’ Mot. at 54.) Based on the
narrative section of each card, Longo decided whether the police officer sufficiently articulated a
reasonable suspicion of criminality as required for a constitutional investigatory stop under
Terry. (Id. at 53–54.) Ultimately, Longo concluded that 9,925 out of the 10,440 contact card
narratives that he reviewed (or 95.5%) insufficiently articulated a reasonable suspicion of
criminality and thus represented unconstitutional stops. (Id. at 54.)
As explained above, experts may not offer “opinions about legal issues that will
determine the outcome of a case.” However, “an opinion is not objectionable merely because ‘it
embraces an ultimate issue to be decided by the trier of fact.’” Florek v. Vill. of Mundelein, Ill.,
649 F.3d 594, 602 (7th Cir. 2011) (citing Fed. R. Evid. 704(a)). Rather, expert testimony
regarding the reasonableness of police conduct may be admissible “in cases where specialized
knowledge of law-enforcement custom or training would assist the jury in understanding the
8
The district court reached a similar conclusion in Cazares v. Frugoli, No. 13 C 5626, 2017 WL
1196978, at *6–7 (N.D. Ill. Mar. 31, 2017). The Cazares court permitted an expert to provide statistical
analyses showing that CPD officers under investigation for alcohol-related incidents were less likely to be
reported when investigated by their fellow CPD officers, but prohibited the expert from providing a
“qualitative opinion” regarding whether a “code of silence” existed within the CPD.
8
facts or resolving the contested issue.” United States v. Brown, 871 F.3d 532, 537 (7th Cir.
2017).9 In such scenarios, the expert’s role must be limited to “describing sound professional
standards and identifying departures from them.” Jimenez, 732 F.3d at 721 (internal quotations
omitted).
Here, Plaintiffs have not demonstrated that Longo’s testimony should be admitted. As a
preliminary matter, Plaintiffs have not shown that this case involves such factual complexity that
specialized knowledge of police practices would be helpful to the jury. See Brown, 871 F.3d at
537 (“[E]veryday experience of lay jurors fully equips them to answer the reasonableness
question when a case involves facts that people of common understanding can easily
comprehend.” (internal quotations omitted)). But more importantly, Longo’s opinions on the
sample contact cards consist of mere legal conclusions regarding the constitutionality of each
underlying police-civilian encounter. Examples of these legal conclusions include, “Loitering
and blocking sidewalk [sic] fails to set out articulable suspicion of imminent criminality,”
“Narcotic hotspot fails to set out articulable suspicion of imminent criminality,” and “Gang
membership coupled with designated zone and previous violent crime occurrence, absent more,
fails to set out articulable suspicion of imminent criminality.” (Pls.’ Mot. Ex. 25:21); see, e.g.,
Sanders v. City of Chicago Heights, No. 13 C 0221, 2016 WL 4417257, at *6 (N.D. Ill. Aug. 19,
2016) (excluding expert testimony that defendant police officer had probable cause to arrest
plaintiff for offering an impermissible legal conclusion). Longo’s testimony is devoid of any
explanation why or how he concluded that certain police officers did not have reasonable
9
For example, the Seventh Circuit has held that expert testimony is more helpful in an excessive force
case that involves a gun, slapjack, mace, or some other tool because the jury may ask questions such as
“what is mace? what is an officer’s training on using a gun? how much damage can a slapjack do?”
Brown, 871 F.3d at 537. By contrast, expert testimony will not be helpful in a case where the officer used
only “their bare hands . . . the most primitive form of force.” Florek, 649 F.3d at 602.
9
suspicion, nor does he explain what facts typically support reasonable suspicion based on his
experience. Compare United States v. Noel, 581 F.3d 490, 497 (7th Cir. 2009) (“Had [the expert]
provided some basis for this explanation, perhaps her testimony would have been of some use for
the jury. But she did not do so. She, in essence, told the jury nothing more than, ‘I am familiar
with the definition of child pornography, and this meets that definition because I said so.’”) with
Jimenez, 732 F.3d at 721–22 (affirming admissibility of expert testimony about the steps a
reasonable police officer would have taken to solve the crime but without opinions on whether
the police officer actually had probable cause to arrest plaintiff) and Blount, 502 F.3d at 680
(affirming admissibility of expert who testified about how defendant could have used his gun to
further his drug activities but did not comment on the defendant’s actual intent to do so).
Therefore, the Court excludes Longo’s opinion about which contact cards represent
unconstitutional investigatory stops.
C.
Andrew J. Cook
The Court next addresses Defendants’ motion to exclude Cook’s testimony. Like Nelson,
Cook is a director at The Claro Group. (Id. Ex. 79.) He is trained as a labor economist and an
applied econometrician, and he has over thirteen years of experience utilizing advanced
statistical methodologies to evaluate economic and statistical issues. (Id.) Cook opines that
Longo reviewed enough individual contact cards to support a 95% confidence level in Nelson’s
methodology, plus or minus a 5% margin of error. (Id.) In other words, Cook testifies that based
on Longo’s conclusions regarding the constitutionality of 10,440 randomly-selected contact
cards, it is highly probable that Nelson’s methodology reliably identified 368,436 contact cards
documenting unconstitutional stops. (Id.)
10
As Cook concedes, he was retained for a narrow purpose: to review and opine on the
accuracy of Nelson’s methodology based on Longo’s conclusions. However, the Court has
already determined that Longo’s opinions regarding whether various police officers acted
constitutionally are inadmissible. And Cook does not contend that he conducted his own
independent analysis of the underlying data. Compare Cazares v. Frugoli, No. 13 C 5626, 2017
WL 1196978, at *8–9 (N.D. Ill. Mar. 31, 2017) (excluding expert testimony offered solely to
bolster another expert’s testimony as duplicative and unhelpful) with The Medicines Co. v.
Mylan Inc., No. 11-cv-1285, 2014 WL 1516599, at *3 (N.D. Ill. Apr. 17, 2014) (permitting
expert testimony that relied on another expert’s testimony where first expert independently
reviewed the data and formed his own opinion). Therefore, the Court excludes Cook’s expert
testimony, as it would not provide any assistance to the trier of fact.
II.
Defendant City of Chicago’s Motion for Sanctions and Plaintiffs’ CrossMotion for Sanctions
The Court next turns to the City’s separately-filed motion for sanctions based on
Nelson’s alleged violation of Federal Rule of Civil Procedure 26(a)(2)(B)(i). The relevant
provision states:
Unless otherwise stipulated or ordered by the court, th[e] disclosure [of expert
testimony] must be accompanied by a written report—prepared and signed by the
witness . . . . The report must contain . . . a complete statement of all opinions the
witness will express and the basis and reasons for them . . . .
Fed. R. Civ. P. 26(a)(2)(B)(i). The purpose of written expert reports is “not to replicate every
word that the expert might say on the stand,” but rather to “convey the substance of the expert’s
opinion so that the opponent will be ready to rebut, to cross-examine, and to offer a competing
expert if necessary.” Metavante Corp. v. Emigrant Sav. Bank, 619 F.3d 748, 762 (7th Cir. 2010)
(internal quotations omitted).
11
Here, the City claims that Nelson’s written report misrepresents his methodology. (Def.
City of Chi.’s Mot. for Sanctions (“DMS”) at 1–2, Dkt. No. 327.) The City contends that at his
deposition on March 20, 2018, Nelson made additional misrepresentations about his
methodology and referred to various documents that the City had requested on December 8,
2017 but Plaintiffs refused to produce until April 12, 2018. Subsequently, the City moved to
reopen Nelson’s deposition. (Dkt. No. 302.) The Court granted the request in part, ordering
Nelson to sit for a second deposition limited to 90 minutes with a narrowed scope of
examination. (See Dkt. No. 309.) At Nelson’s second deposition on April 25, 2018, Nelson
admitted that his report contained some inaccuracies. The City thus claims that it is entitled to
reimbursement in the amount of at least $141,823,10 which is the amount it expended in expert
costs and attorneys’ fees while attempting to replicate Nelson’s results, requesting documents
identified by Nelson during his March 20 deposition, seeking to reopen Nelson’s deposition,
conducting Nelson’s April 25 deposition, and filing the instant motion. (DMS at 11–12.)
Plaintiffs in turn assert that Nelson’s report comports with the requirements of Rule
26(a)(2)(B). (Pls.’ Opp’n to City of Chi.’s Mot. for Sanctions and Cross-Mot. for Sanctions
(“PCMS”) at 3–5, Dkt. No. 344.) As to Nelson’s alleged misrepresentations, Plaintiffs concede
that Nelson made a mistake in his written report but point out that he promptly corrected the
mistake when the City brought it to his attention. As to their document production, Plaintiffs
contend that they justifiably withheld certain documents requested by the City (such as the draft
queries that Nelson made prior to issuing his written report) under the protections for draft
reports or disclosures afforded by Federal Rule of Civil Procedure 26(b)(4)(B).11 Further,
10
Defendant claims it expended between $141,823.33 and $179,473.
11
Rule 26(b)(4)(B) provides that drafts of expert reports or disclosures are not subject to discovery,
regardless of the form in which a draft is recorded.
12
Plaintiffs contend that although the City was permitted to reopen Nelson’s deposition, the Court
declined to award the City attorneys’ fees or costs, and therefore the City should not be allowed
to renew their argument for sanctions.12 For their part, Plaintiffs request sanctions against the
City for misrepresenting facts, ignoring the Rules, and misstating the law in the City’s motion for
sanctions. (PCMS at 12.)
Federal Rule of Civil Procedure 37 provides that a party may be sanctioned for its failure
to make disclosures or to cooperate in discovery. Specifically, Rule 37(a)(3) provides that if a
party fails to make a disclosure required by Rule 26(a), the other party may make a motion to
compel disclosure and for appropriate sanctions.13 Similarly, Rule 37(c)(1) provides that if a
party fails to provide information or identify a witness as required by Rule 26(a) or (e), the Court
may exclude that information or witness or impose other appropriate sanctions unless the Court
determines that “the failure was substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1).
“Whether a failure to comply with Rule 26(a) or (e) is substantially justified, harmless, or
warrants sanctions is left to the broad discretion of the district court.” Dynegy Mktg. & Trade v.
Multiut Corp., 648 F.3d 506, 514 (7th Cir. 2011). “District courts possess wide latitude in
fashioning appropriate sanctions.” Johnson v. Kakvand, 192 F.3d 656, 661 (7th Cir. 1999); see,
e.g., Metavante, 619 F.3d at 762 (reviewing district court’s ruling on motion pursuant to Rule
26(a)(2)(B)(i) for abuse of discretion). The Court addresses each party’s request for sanctions in
turn.
Rule 26(b)(4)(B) provides that drafts of expert reports or disclosures are not subject to discovery,
regardless of the form in which a draft is recorded.
ty had not been prejudiced. (Dkt. Nos 309, 310.)
13
Federal Rule of Civil Procedure 37(a)(5) provides that if the motion to compel is granted, or disclosure
or discovery is provided after the motion is filed, the Court must require the party whose conduct
necessitated the motion to pay the movant’s reasonable expenses, unless the movant filed the motion
before attempting in good faith to obtain the disclosure without court action, the opposing party’s
nondisclosure was substantially justified, or other circumstances make an award of expenses unjust.
13
According to the City, Plaintiffs violated Rule 26(a)(2)(B)(i), which requires expert
witnesses to provide a report containing “a complete statement of all opinions the witness will
express and the basis for them.” Fed. R. Civ. P. 26(a)(2)(B)(i). But the mere fact that Nelson’s
report contained some inaccuracies does not render his report incomplete. See Varlen Corp. v.
Liberty Mutual Ins. Co., No. 13-cv-05463, 2017 WL 4278787, at *4 (N.D. Ill. Sept. 25, 2017)
(“[The expert’s] report complied with Rule 26(a)(2)(B)(i) because it did not make ‘it impossible
to tell what he might have been thinking about’ . . .” (quoting Meyers v. Nat’l R.R. Passenger
Corp., 619 F.3d 729, 735 (7th Cir. 2010)). Indeed, even a written report that sets forth the
expert’s opinions in a “conclusory fashion” may be sufficient, so long as it “serves to ‘set forth
the substance of the direct examination.’” Id. (quoting Jenkins v. Bartlett, 487 F.3d 482, 488 (7th
Cir. 2007)). As explained above, the purpose of Rule 26(a)(2)(B)(i) is to allow “attorneys, not
experts in the fields at issue, to prepare intelligently for trial and to solicit the views of other
experts.” Metavante, 619 F.3d at 762. The City has not explained how the concerns raised with
respect to Nelson’s written report inhibited their ability to depose him effectively. To the
contrary, the City does not dispute that at Nelson’s second deposition, they questioned him about
the “misrepresentations,” which prompted Nelson to admit that there was an “incorrect”
reference in his report that reflected “a mis-recollection on my part.” (PCMS at 5.)
Moreover, even if Plaintiffs did violate Rule 26(a)(2)(B)(i) by producing Nelson’s
imperfect report, the Court declines to award the sanctions sought by the City. The City’s request
for sanctions relies primarily on its position that it is entitled to recover its expert costs and
attorneys’ fees “associated with attempts to replicate Nelson’s results.” (DMS at 11.) Prior to
Nelson’s first deposition, the City enlisted its own expert, George Socha, to reproduce Nelson’s
process and results based on Nelson’s representations in his written report. Despite conducting
14
over 740 searches, Socha was ultimately unsuccessful and racked up considerable costs, which
the City attributes to the deficiencies in Nelson’s report. Although the City characterizes Socha’s
reverse-engineering experiments as “understandable,” the Court is not persuaded that the City
spent its resources wisely. Again, the City has not explained why any deficiencies with Nelson’s
report made Socha’s $100,000 guessing game essential, either to the City’s deposition
preparations or to Socha issuing his own independent expert opinion. Therefore, the Court denies
the City’s request for costs and fees incurred due to Socha’s numerous failed attempts to
replicate Nelson’s process and results.
Next, the City seeks $14,134 in attorneys’ fees associated with requesting certain
documents identified by Nelson during his March 20 deposition, moving to reopen Nelson’s
deposition, and deposing Nelson a second time. Plaintiffs concede that pursuant to court order,
they ultimately produced additional documents and made Nelson available for a follow-up
deposition. (PCMS at 4–5.) However, the City is not necessarily entitled to sanctions and
attorneys’ fees simply because they prevailed on their discovery motion. See, e.g., TIG Ins. Co.
v. Giffin, Winning, Cohen & Bodewes, No. 00 C 2737, 2001 WL 969037, at *1 (N.D. Ill. Aug.
24, 2001) (granting motion to strike and compel but denying motion for sanctions). Instead, even
if a motion to compel disclosure or discovery is granted, the Court “must not” award payment if
“the opposing party’s nondisclosures, response, or objection was substantially justified; or other
circumstances make an award of expenses unjust.” Fed. R. Civ. P. 37(a)(5)(ii)–(iii) (emphasis
added).
Here, the Court finds that Plaintiffs’ withholding of certain documents and initial refusal
to participate in a second deposition was substantially justified and that an award of expenses
would be unjust. Plaintiffs made good-faith arguments in their opposition to the City’s motion.
15
See United Food & Comm. Workers, Union, Local 546, AFL-CIO v. Ebro Foods, Inc., No. 92 C
2452, 1992 WL 245541, at *4 (N.D. Ill. Sept. 21, 1992) (denying successful party’s motion for
sanctions where unsuccessful party “asserted its position in good faith”). They explained that
they produced every document shown to Nelson and only withheld those they considered
privileged as “draft queries that were made in eventually arriving at his report,” and pointed out
that Nelson had already sat through a ten-hour deposition. (Tr. of Proceedings Held on 4/19/2018
at 9–10, Dkt. No. 310). Under the circumstances, the limited reopening of Nelson’s deposition
was a natural, perhaps even expected, outcome of the opposing parties’ zealous representation of
their clients’ interests during the discovery process.
Moreover, the City has not shown that it suffered any prejudice due to Plaintiffs’ failure
to produce the disputed documents. See Raygoza v. Wexford Health Sources, Inc., 729 F. App’x.
466, 467 (7th Cir. 2018).14 The City admits that as early as January 12, 2018, more than two
months before Nelson’s first deposition on March 20, it confronted Plaintiffs about their failure
to produce the disputed documents—namely, documents relied upon or otherwise used in
connection with the drafting of Nelson’s report, Nelson’s expert file, and any notes, memoranda,
or writings prepared by Nelson. (DMS at 6–7.) On January 22, 2018, Plaintiffs made it
abundantly clear that they did not intend to produce those documents. (Id. at 7.) Nonetheless, the
City chose to proceed with Nelson’s deposition. (Id.) Unsurprisingly, Nelson testified at his
March 20 deposition about the existence of certain unproduced documents, such as his
“incidental notes reflecting the results generated by changes to his process,” “records regarding
testing of his search filters,” “records regarding internal testing of his process,” and “records
14
Raygoza is an unpublished Seventh Circuit order issued after January 1, 2007. Although not
precedential, the order’s reasoning is persuasive and provides a useful point of comparison here. See Fed.
R. App. P. 32.1(a); 7th Cir. R. 32.1(b).
16
regarding alternative approaches that he and his colleagues tested.” While the City argues that
Plaintiffs should reimburse its attorneys’ fees incurred making additional requests for the
disputed documents, moving to reopen Nelson’s deposition, and deposing him a second time,
most if not all of those fees could have been avoided entirely had the City instead postponed
Nelson’s deposition and filed a motion to compel. Ultimately, these additional attorneys’ fees are
a direct result of the City’s own decision to press forward with Nelson’s deposition without first
seeking to obtain the disputed documents. Therefore, the Court denies the City’s motion for
sanctions based on Nelson’s allegedly unsatisfactory first deposition.15
Because the Court has otherwise denied the City’s request for various costs and fees, the
Court also denies the City’s request for attorneys’ fees associated with the instant motion for
sanctions.
Finally, the Court turns to Plaintiffs’ cross-motion for sanctions based on the City’s
unsuccessful sanctions motion. Plaintiffs accuse the City of “pursu[ing] a path that a reasonably
careful attorney would have known, after appropriate inquiry, to be unsound” in violation of
Federal Rule of Civil Procedure 11 and “multipl[ying] the proceedings” in this case
“unreasonably and vexatiously” as prohibited by 28 U.S.C. § 1927. According to Plaintiffs, the
City’s motion for sanctions mischaracterizes Nelson’s report, misrepresents the procedural
history of this case, and cites misleading case law. Although the City’s motion for sanctions was
ultimately unpersuasive, the Court does not find that the City’s conduct “rise[s] to the level of
impropriety that would warrant sanctions.” Blow v. Bijora, 855 F.3d 793, 807 (7th Cir. 2017)
15
Furthermore, although Rule 11 contains no explicit time limit for bringing sanctions motions, the
Advisory Committee Notes to the rule state: “A party seeking sanctions should give notice to the court
and the offending party promptly upon discovering a basis for doing so.” See also Kaplan v. Zenner, 956
F.2d 149, 150 (7th Cir. 1992). Here, the Court observes that the City had an opportunity to request
sanctions when it moved to reopen Nelson’s deposition and again in its Daubert motion to exclude
Nelson’s testimony.
17
(affirming denial of sanctions despite “misgivings about the firm’s judgment” and chastising
party to “exercise better judgment in the future”). Therefore, the Court in its discretion denies
Plaintiffs’ cross-motion for sanctions against the City.
CONCLUSION
For the foregoing reasons, Defendants’ motion to exclude Plaintiffs’ expert witnesses Eli
Nelson, Timothy Longo, and Andrew Cook (Dkt. No. 315) is granted in part and denied in part.
Specifically, Nelson will only be permitted to testify as a summary witness and not as an expert
witness. Longo’s expert testimony as to the existence of reasonable articulable suspicion or the
constitutionality of an interaction based on his review of contact cards is excluded. Cook’s expert
testimony is excluded. The City’s motion for sanctions (Dkt. No. 327) and Plaintiffs’ crossmotion for sanctions (Dkt. No. 344) are both denied.
ENTERED:
Dated: September 30, 2019
________________________________
Andrea R. Wood
United States District Judge
18
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