Monco v. Zoltek Corporation et al
Filing
302
MEMORANDUM Opinion and Order Signed by the Honorable Jeffrey Cole on 9/26/2019:Mailed notice(jms, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DEAN A. MONCO, an individual, et al., )
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Plaintiffs,
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v.
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ZOLTEK CORPORATION, a
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Missouri corporation, et al.,
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Defendants.
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No. 17 C 6882
Magistrate Judge Jeffrey Cole
MEMORANDUM OPINION AND ORDER
The defendant has filed a motion to compel the expert deposition of one of the plaintiffs,
Dean Monco. Mr. Monco was deposed as a fact witness in February of 2019. But on September 13,
2019, the final day for disclosing expert witnesses, plaintiffs disclosed Mr. Monco as an expert
witness. The plaintiff’s expert witness disclosure states it is “a supplement to the disclosure of
testimony in Monco’s deposition transcript” and lists a number of topics on which Mr. Monco “may
testify at trial consistent with [his prior] deposition testimony and his interrogatory answers.” [Dkt.
#299-1, at 2-4]. Defendant tells us the parties met and conferred, but plaintiffs opposed any expert
deposition of Mr. Monco because, it was argued, he had already been deposed – albeit as a fact
witness. That was a specious objection. Questions an attorney might pose to a person as an expert
witness may well be different than those that might be posed to the same person who initially
testified as a fact witness. As the Seventh Circuit has recognized, “[t]here is a significant distinction
between disclosing an individual as a fact witness under Rule 26(a)(1)(A) and disclosing an expert
witness under Rule 26(a)(2).” Karum Holdings LLC v. Lowe's Companies, Inc., 895 F.3d 944, 951
(7th Cir. 2018). See also Musser v. Gentiva Health Servs., 356 F.3d 751, 759 (7th Cir. 2004)(“It was
the district court's opinion that, in this particular case, Gentiva was denied the opportunity to
question the witnesses in their expert capacity. This choice is not outside the range of reasonable
options available to the district court.”).
The lengthy and unconditional Order setting the discovery schedule in this case required that
deposition of plaintiff’s experts be completed by September 27, 2019. [Dkt. # 285]. It also provided
that there would be no further extensions of the discovery schedule, that the court, not the lawyers,
were in charge of discovery, and that the discretion to control discovery includes the authority to set
schedules for depositions. “The parties do not own the discovery schedule.” [Dkt. #285]. Delay in
filing motions can be fatal. In re Sulfuric Acid Antitrust Litigation, 230 F.R.D. 527, 533 (N.D.Ill.
2005); In re Sulfuric Acid Antitrust Litigation, 231 F.R.D. 331, 337 (N.D.Ill. 2005); In re Sulfuric
Acid Antitrust Litigation, 231 F.R.D. 320, 325 (N.D.Ill. 2005). We live in a world of deadlines, the
practice of law is no exception. Raymond v. Ameritech Corp., 442 F.3d 600 (7th Cir.2006). Indeed,
the Seventh Circuit has held that even a day’s delay can be fatal. Brosted v. Unum Life Ins. Co. of
Am., 421 F.3d 459, 464 (7th Cir. 2005); Tuke v. United States, 76 F.3d 155, 157 (7th Cir. 1996).
Mr. Monco was disclosed as an expert within the time allowed in the schedule, on September
13. Under the schedule, defendants knew they had only two weeks in which to complete the
depositions [Dkt. #285]. Defendants don’t say when they first requested an expert deposition of Mr.
Monco, but, according to them, they knew plaintiff was opposing an expert deposition of Mr. Monco
as of September 20th. [Dkt. #299, at 2 (“On September 20, 2019, attorneys for Monco indicated that
they oppose a deposition under Rule 30(a)(2)(A)(ii) stating that Mr. Monco’s February 2019
deposition prohibits a second deposition.”)]. Yet, they waited five days to file their motion to
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compel, filing it at 4 p.m. on September 25th. That would have left less than two days in which to
schedule Mr. Monco’s deposition, assuming the motion was heard and granted the very next
morning. But, under Local Rule 5.3 (a), it could not have been heard until two days later at the
earliest – unless it was filed as an emergency motion. That would have made scheduling the
requested deposition virtually impossible. And, it would have violated Local Rule
16.1(4)(“Discovery requested before the discovery closing date, but not scheduled for completion
before the discovery closing date, does not comply with this order.”), which the parties were
reminded of by my Order of in early August. [Dkt. #292. See also Dkt. #285].
It turned out to be worse than that, however, because the defendants did not notice the motion
for hearing until October 1st [Dkt. # 300], the Monday after the deadline for completing expert
depositions passed. Just ten days ago, the parties were forcefully reminded of the discovery schedule
at a status hearing and told they had to comply with it. [Dkt. # 297. See also Dkt. #292]. And, on
June 5, 2019, they were informed in a lengthy minute order that all expert discovery had to be
completed by October 25, 2019 and that “[t]here shall be no further extensions of the discovery
schedule.” No one reading the page-and-a-quarter long Minute Order could have failed to appreciate
that the Order meant what it said. Extensions by default, see Logan v. Berryhill, 2017 WL 1344521,
at *2 (N.D. Ill. 2017) – and that is in reality what is sought by the defendants – ought not be allowed.
See generally Frank Easterbrook, Discovery As Abuse, 69 B.U.L.Rev. 635 (1989). Thus, the
defendant’s motion to compel [Dkt. #299] is denied.
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ENTERED:
UNITED STATES MAGISTRATE JUDGE
DATE: 9/26/19
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