Sokolova et al v. United Airlines Inc et al

Filing 143

MEMORANDUM OPINION AND ORDER Signed by the Honorable Jeffrey Cole on 1/17/2020. Mailed notice (yt)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
OLGA SOKOLOVA, et al.,
Plaintiffs,
v.
UNITED AIRLINES, INC.,
Defendant.

)
)
)
)
)
)
)
)
)

No. 18 C 2576
Magistrate Judge Jeffrey Cole

MEMORANDUM OPINION AND ORDER
INTRODUCTION
The plaintiffs have filed what they call a “Combined Motion for Leave of Order [sic] to
Extend Plaintiffs Discovery and Compel Deposition of Defendant’s ‘Employee With Knowledge’
and for Discovery Sanctions Pursuant to Rule 37 of Federal Rules of Civil Procedure.” [Dkt. #116].
We are told with increasing frequency that “[p]re-trial discovery under modern federal
practice has become a monster on the loose and that “[p]re-trial proceedings have become more
costly and important than trials themselves,’ ” A.H. Robins Co. v. Piccinin, 788 F.2d 994, 1013 (4th
Cir. 1986). Indeed, we have it on the highest authority that “protracted pretrial discovery is the bane
of modern federal litigation.” Rossetto v. Pabst Brewing Co., Inc., 217 F.3d 539, 542 (7th Cir. 2000).
Accord, Menard v. CSX Transp., Inc., 2014 WL 359956, at *1 (D. Mass. 2014); Reitz v. Creighton,
2019 WL 5798680, at *1 (N.D. Ill. 2019). This case is illustrative of the reasons for the concern
continually expressed by courts around the country.
The plaintiffs’ motion for sanctions is denied; the motion for an extension is granted.
A.

This case has been one discovery controversy after another, with neither side covering
themselves in glory, although the conduct of the plaintiff’s lawyer certainly stands out.1 The spat at
issue in the present motion began on September 13th with plaintiffs’ counsel noticing a 30(B)(6)
deposition for 1:30 p.m. on October 11th. [Dkt. #116, Page 9]. At that time, discovery was set to
close on September 30th [Dkt. ## 73, 103], so the notice was too late and non-compliant with Local
Rule Standing Order 16.1(4). But, the parties managed to get together and request an extension of
the discovery deadline – even attorneys who are at each others’ throats can agree on extra time to do
their work – and, on October 4th, the fact discovery deadline was extended to October 31st. [Dkt.
#109]. According to plaintiffs’ counsel, defense counsel never confirmed the deposition scheduled
for October 11th. Another deposition – that of plaintiff Yury Koupatadze – had been rescheduled for
that slot, and so defense counsel indicated he would provide alternate dates in an email dated
October 10th. [Dkt. # 116, Page 11]. In response, plaintiff’s counsel wrote an angry, rambling
email, demanding dates by 3:30 p.m. on October 11th. [Dkt. #116, Page 12]. Defense counsel took
issue with some of the personal attacks in that email and indicated his 30(b)(6) witness was out of
the office for a week, and he could discuss dates with her when she returned. [Dkt. # 116, Page 13].
Plaintiff’s counsel responded by requesting a Local Rule 37.2 conference if defense counsel could
not confirm dates. [Dkt. #116, Page 14]. Defense counsel responded four days later on October 15th
saying that the 30(b)(6) witness would be available on October 30th. [Dkt. #116, Page 14]. On
October 23rd, plaintiff’s counsel wrote that he had a court appearance in Milwaukee on that day, as
well as a doctor’s appointment. He suggested November 16, 17, or 18 as alternate dates. [Dkt.
#116, Page 14]. On October 25th, defense counsel wrote that the parties should address the
1

See, e.g. Dkt. 121 regarding the misconduct of the plaintiff lawyer.

2

scheduling issue at the November 5th status hearing before Judge Pacold. [Dkt. #116, Page 16].
Plaintiffs’ counsel wrote back on October 25th and said “absolutely no” and requested an immediate
telephone conference. [Dkt. #116, Page 16].2
In the early morning hours of October 28th, plaintiffs’ counsel filed a motion to postpone the
status hearing before Judge Pacold. [Dkt. #110]. That afternoon, the parties had their telephone
conference. According to plaintiff’s counsel, defense counsel was “yelling on posing counsel”
during that conference and nothing was accomplished. [Dkt. #116, Page 4]. Now, plaintiffs’ counsel
wants an extension of the discovery deadline to take the 30(b)(6) deposition and sanctions.
Plaintiffs’ counsel has been at least as much at fault in the problems with this case as defense
counsel, if not a good deal more. Plaintiffs’ original notice didn’t even comply with the discovery
schedule then in place. Moreover, plaintiffs’ counsel has a steady history of missing, postponing,
and cutting things short, due to the constantly reiterated theme that his home and office are in
Milwaukee. See, e.g., [Dkt. # 93, 95 (counsel complains that it is burdensome to drive from
Milwaukee for 8:30 am hearing); Dkt. #98 (medicated and unable to travel from Milwaukee for
rescheduled hearing); Dkt. #112 (counsel unable to drive from Milwaukee for hearing due to child
care issues); Dkt. #121 (counsel and plaintiffs fail to appear); Dkt. # 123-1, at 1 (counsel arrives half

2

This exchange is illustrative of the astonishing amount of time that is wasted by counsel in case
after case on matters that should be simple easily resolved. It is precisely this sort of inability or
unwillingness to agree on routine matters that in part accounts for the all too prevalent impression that law
is not practiced with strict rectitude. But justice is not a game, and zealous advocacy does not entitle a lawyer
to “‘hoodwink a judge [or his opponent] who is not overwise.’” United States v. Paglia, 190 F.2d 445, 448
(2nd Cir. 1951)(L. Hand, J.). See Masias v. Sec'y of Health & Human Servs., 2009 WL 1838979, at *27 (Fed.
Cl. 2009); Perry v. Jones 2007 WL 1455863, 1 -2 (N.D.Ill.,2007). See also Dickerman v. Burgess,

20 Ill. 266 (1858). See Stuart M. Speiser, Sarbanes-Oxley and the Myth of the Lawyer Statesman,
32 LITIGATION 5 (Fall 2005).

3

hour late); #123-1, at 71-73 (counsel leaving early to return to Milwaukee); #123-1, at 105-06
(counsel unavailable to resume deposition due to appointment in Milwaukee); #130 (counsel unable
to make morning hearing and return to Milwaukee for afternoon doctor’s appointment)]. Anyone
who has received the degree of accommodation that plaintiffs’ counsel has should not have so short
a fuse with sanctions motions.
But, most importantly, the plaintiffs’ motion is not supported with a single case citation. See
United States v. Cisneros, 846 F.3d 972, 978 (7th Cir. 2017) (“[P]erfunctory and undeveloped
arguments, and arguments that are unsupported by pertinent authority, are waived.”); Crespo v.
Colvin, 824 F.3d 667, 674 (7th Cir. 2016); United States v. Berkowitz, 927 F.2d 1376, 1384 (7th Cir.
1991). Counsel should be on notice that what has gone on before will no longer be tolerated.
The motion for an extension of the discovery deadline for the limited purpose of taking the
30(b)(6) deposition is granted. According to the docket it was already ruled on but if the deposition
has not been completed, the parties are ordered to select a date for the deposition if it has not already
occurred. And if it has not already occurred, the parties will have 14 days to take the deposition.
I note in reviewing the docket that discovery has been sent here by Judge Tharp before the
case was taken over by Judge Pacold. [Dkt. #61]. Nonetheless, plaintiffs filed a motion before Judge
Pacold on 10/29/19 for extension of time to complete plaintiffs’ discovery and to compel notice of
deposition and for further discovery sanction. Why that motion was not filed before me is unclear
in light of the history and subject matter of the referrals. If it was an attempt to avoid this court’s
jurisdiction on a matter necessarily having to do with discovery (i.e. when discovery will end) and
thus encompassed not only by Judge Tharp’s referral of 4/24/19, [Dkt. #61] but Judge Pacold’s
referral of 11/15/19 [Dkt. #132] it will not be permitted. It was improper and will not be permitted
4

in the future. Similarly, the plaintiffs’ motion before Judge Pacold [Dkt. #134] regarding the time
to respond to defendant’s Motion for Sanctions also appears to be an attempt to avoid this court’s
jurisdiction over the matter necessarily involved in discovery.
B.
The plaintiffs’ Motion for Sanctions is denied, and the Motion for a continuance is granted,
consistent with this Opinion. Counsel should be under no misapprehensions, however. The conduct
that unfortunately has been all too prevalent in this case will no longer be tolerated. See generally
Brotherhood of Engineers and Trainmen v. Union Pacific Railroad Co., _F.3d_ (7th Cir. 2018);
Sambrano v. Mabus 663 F.3d 879, 881-882 (7th Cir. 2011)(“Sanctions such as orders to pay the other
side's attorneys' fees may redress injuries done to put-upon adversaries....); Rickels v. City of South
Bend, Indiana, 33 F.3d 785, 786-87 (7th Cir. 1994).

ENTERED:
UNITED STATES MAGISTRATE JUDGE

DATE: 1/17/20

5