Nordstrom Consulting, Inc. et al v. Innova Systems, Inc. et al

Filing 130

MEMORANDUM OPINION AND ORDER: Signed by the Honorable Jeffrey Cole on 10/7/21. Mailed notice (yt)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
NORDSTROM CONSULTING, INC.,
STEVEN NORDSTROM,
Plaintiffs,
v.
INNOVA SYSTEMS, INC., et al.,
Defendants.

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No. 18 C 3011
Magistrate Judge Jeffrey Cole

MEMORANDUM OPINION AND ORDER
The plaintiffs have moved under seal to stay discovery and/or amend the discovery Order.
[121]. The motion asks that the reasons for the requested extension be maintained as confidential.
[121]. The extension that is sought would extend six months from the current discovery schedule
and would end on 7/1/22. [121]. The defendants have objected, under seal, to any extension. [122].
Although the motion is under seal, counsel for defendants have been permitted to review the
motion, but are precluded from sharing or discussing the contents of the motion with their clients.
The defendants’ response explains, so far as is possible given the under seal filing, the reasons for
the objections. But it does state that the defendants do consent to a one month extension, and if that
proves to be insufficient, a further extension could be considered then. [122]. A decision to grant or
deny a motion relating to the scheduling of discovery is uniquely a matter within the exceptionally
broad discretion judges have in supervising discovery. Cf. Crawford–El v. Britton, 523 U.S. 574, 598
(1998); Semien v. Life Insurance Co. of N.A., 436 F.3d 805, 813 (7th Cir.2006). Thus, “it is possible
for two judges, confronted with the identical record, to come to opposite conclusions and for the
appellate court to affirm both.” Mejia v. Cook Cty., Ill., 650 F.3d 631, 635 (7th Cir. 2011). See also

United States v. Bullion, 466 F.3d 574, 577 (7th Cir. 2006)(“The striking of a balance of
uncertainties can rarely be deemed unreasonable....”); Velez v. City of Chicago, 2021 WL 3109657
at *2 (N.D.Ill. 2021). Judges’ failures to properly monitor discovery is a source of constant criticism
by reviewing courts and is deemed to be a significant source of increased costs of litigation as well
as accounting for much of the abuses by plaintiffs’ and defendants’ lawyers, alike. See, e.g.,
Malautea v. Suzuki Motor Co. Ltd., 987 F.2d 1536 (11th Cir. 1993)(Roney, J., concurring); Miller
UK Ltd v. Caterpillar, Inc., 17 F.Supp.3d 711, 721-22 (N.D.Ill. 2014). See also Victor Marrero, The
Costs of Rules, The Rule of Costs, 37 Cardozo L.Rev. 1599 (2016); Frank H. Easterbrook, Discovery
as Abuse, 69 B.U.L.Rev. 635, 639 (1989). Cf. Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007);
Swanson v. Citibank, N.A., 614 F.3d 400, 411–412 (7th Cir.2010); Continental Insurance. Co. v.
Chase Manhattan Mortgage Corp., 59 Fed.Appx. 830, 840 (7th Cir.2003).
Thus, regardless of the claimed reasons for the indefinite stay of discovery set forth in the
plaintiff’s under-seal filing, the proper course to be considered would not be what, in effect, would
be an indefinite stay of discovery, the duration of which would effectively be determined by the
plaintiff. While that course no doubt would be acceptable to the plaintiff, it would be unfair to the
defendants, and would entail no real oversight by the defendants – or the court. The defendants
would, in effect, be forced to accept whatever representations were made by the plaintiffs. The same
would be true of the court. That is an approach which cannot be accepted under basic principles of
fairness or under basic procedures of the Federal Rules of Civil Procedure.
A possible solution to the present situation is provided in Rule 41(a) of the Federal Rules of
Civil Procedure which provides:
an action may be dismissed by the plaintiff without order of court (i) by filing a
notice of dismissal at any time before service by the adverse party of an answer or of
a motion for summary judgment, whichever first occurs, or (ii) by filing a stipulation

of dismissal signed by all parties who have appeared in the action. Unless otherwise
stated in the notice of dismissal or stipulation, the dismissal is without prejudice,
except that a notice of dismissal operates as an adjudication upon the merits when
filed by a plaintiff who has once dismissed in any court of the United States or of any
state an action based on or including the same claim.
(Emphasis supplied).1

In any event, since the defendants consent to a one month extension discovery will be stayed
for one month. The stay will end on 11/7/21. The plaintiff’s motion for a stay of discovery [121] is
denied except as provided in this Order. The matter will be revisited at a status conference to be held
on 11/8/21 at 9:00 a.m.

ENTERED:
UNITED STATES MAGISTRATE JUDGE

DATE: 10/7/21

1

A number of the representations in the plaintiff’s motion have been made under oath.
But the unilateral assertion of an oath is not a sufficient substitute for appropriate inquiry crossexamination by the opposing side against whom the affidavit is offered. Secrecy is simply not
conducive to truth-telling, and the oath is not an adequate substitute for cross-examination, “the
greatest legal engine for the discovery of truth ever invented.” Indeed, even lawyers have been
known to make representations in affidavits which were untrue. See, e.g., FTC v. Advocate
Healthcare Network, 162 F.Supp.3d 666 (N.D.Ill. 2016); Tellabs v. Fujitsu, 283 F.R.D. 374
(N.D.Ill. 2012).
3