Bierk v. Tango Mobile, LLC et al
MEMORANDUM OPINION and ORDER signed by the Honorable Jeffrey Cole on 4/28/2021. Mailed notice (ags)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
JOHN T. BIERK,
TANGO MOBILE, LLC, et al.,
No. 19 C 5167
Magistrate Judge Jeffrey Cole
MEMORANDUM OPINION AND ORDER
The plaintiff has filed another motion to compel, this one to take a third deposition of
defendant CORT’s 30(b)(6) witness, Jeff Seidman. Given the history of discovery in this case,
which need not be revisited, this Order will be brief.
All discovery must have enforceable deadlines. Flint v. City of Belvedere, 791 F.3d 764, 768
(7th Cir 2015). Efficient case management demands it. Discovery in this case closed on April 16,
2021. [Dkt. #80, 136]. That was after multiple extensions totaling ten and a half additional months.
[Dkt. ## 45, 68, 69, 78, 80]. Due, in part, to the vitriolic nature of the proceedings, two items were
unresolved at the end: a deposition of Ms. Gloria Rose and an inspection and production of relevant
items in plaintiff’s Apple iPhone 6, which was locked with a password supposedly unknown to
anyone.1 The two issues are potentially interrelated in that the phone may contain texts and/or
pictures evidencing an intimate relationship between the plaintiff and Ms. Rose that would bear on
the question of possible bias of Ms. Rose toward the plaintiff. See discussion in Dkt. #154 regarding
In conversations with counsel for the parties it was made clear that there would be no general search
of the phone and general itemization of its contents.
the critical concept of bias. See generally United States v. Abel, 469 U.S. 45, 52 (1984).2 It is thought
that certain materials in the form of texts and pictures involving plaintiff and Ms. Rose were on the
iPhone. Discovery was allowed to go past the court-ordered deadline for the limited purpose of
addressing those two items, which, as noted above, could bear on the potential bias of a significant
witness in the case. The item plaintiff’s current motion raises was not one of these. There was no
additional extension of the discovery deadline other than to allow Ms. Rose to stop her deposition
to engage and consult with a criminal lawyer prior to the completion of her continued deposition and
for the parties to hammer out, if possible, the long-festering phone issue, which involved the opening
of the phone – if possible – and the production of items of a sexual nature – if any – which would
reflect and relate to a shared sexual or intimate relation between Ms. Rose and the plaintiff. [Dkt.
#136]. But, other than those two items, discovery closed April 16th. “[T]here [has been] enough
discovery [in this case] to choke a horse....” Walker v. Sheahan, 526 F.3d 973, 978 (7th Cir. 2008).
“[E]nough is enough,” Williams v. Shinseki, 2010 WL 1274233, 4 (7th Cir. 2010).
The plaintiff’s current Motion, filed on April 26th, comes ten days too late. The following
timeline confirms that it could easily have been brought a month earlier:
The plaintiff’s lawyers have vigorously insisted that pictures and/or texts of a sexual nature on the
phone that would reflect a substantial degree of intimacy between plaintiff and Ms. Rose have nothing to do
with the case and thus should not be subject to any discovery. That position ignores the role potential bias
can and does play in all cases. [Dkt. #154]. In any event, if any materials of the kind discussed in this
Opinion [see also Dkt. #154] are to be found on the phone, they will be subject to and governed by a separate
Protective Order. Of course, whether and how any relevant materials obtained from the phone can be used
at trial will be a question for the district court. But the discoverability of the information presents a different
question and it is one to be decided in discovery by the court overseeing discovery.
March 19, 2021 – Seidman testifies at his 30(b)(6) deposition that defendant Cort
had “e-mails showing that Ms. Rose stole over 1,500 documents from
CORT while she was still employed by CORT and shared them not only
with Mr. Bierk in the form of a zip file, but then she also sent you a
Dropbox containing CORT's information as well. . . .It appears to us from
looking at those documents and those e-mails, that Mr. Bierk and Ms. Rose
were trying to shake us down, I guess is the word I would use.”
March 22, 2021 – filed complaint with Seidman affidavit and served plaintiff on
March 25, 2021 – court hearing on complaint and delaying Rose’s deposition
April 20, 2021 – defendant filed second criminal complaint (deposition had been
rescheduled to April 22) with Seidman affidavit
[Dkt. #149, at 7].
So, it is unclear why, if the alleged plaintiff-Rose conspiracy was a topic at the second
Seidman deposition over a month ago, plaintiff did not question Mr. Seidman about it then. And it
is unclear why, if the criminal complaint and affidavit are the trigger for redeposing Mr. Seidman
as plaintiff claims – a presumption ignores that March 19th deposition testimony – and defendant
did not respond to a March 23rd deposition request on until April 1st, when it refused, plaintiff did
not file his motion until three weeks later, after discovery had closed. Plaintiff suggests this was due
to attempting to change defendant’s mind in a phone conference of unspecified length apparently on
April 6th. [Dkt. #149, at 9-10; #149-15]. And, stunningly, the plaintiff delayed in filing his motion
until April 21st even after the final warning of April 15th that there would be no further extensions
of the discovery deadline. [Dkt. #144, at 7]. Lawyers and litigants who decide that they will play by
rules of their own invention will find that the game cannot be won. Nw. Nat. Ins. Co. v. Baltes, 15
F.3d 660, 663 (7th Cir. 1994).3 So, the motion to compel, filed after the discovery deadline, is denied
as untimely. See Haynes v. Alliant Food Serv., Inc., 93 F. App'x 71, 73–74 (7th Cir. 2004)(“. . .
rarely will we find an abuse of discretion when the motion to compel came after the close of
discovery.”); Packman v. Chicago Tribune Co., 267 F.3d 628, 647 (7th Cir.2001).
Additionally, I note that plaintiff’s motion not only comes late, but with little attempt to tie
the proposed deposition to the issues in this case. [Dkt. #149, at 2-6]. And, any tie is all the more
tenuous now that Judge Tharp has denied defendant’s belated attempt to add counterclaims against
plaintiff for conversion and conspiring with Ms. Rose in her alleged theft of confidential documents.
“All good things must come to an end, however.” Hal Commodity Cycles Mgmt Co. v. Kirsh,
825 F.2d 1136, 1137 (7th Cir. 1987). So too here. Plaintiff’s Motion to Compel [Dkt. #149] is denied.
UNITED STATES MAGISTRATE JUDGE
Concerns about delays are nothing new either in law or life. See Mallory v. Kirwan, 2 U.S. 192, 193
(1792); The Key City, 14 Wall. 653, 81 U.S. 653, 655 (1871); Curtner v. United States, 149 U.S. 662, 676
(1893); United States v. Hollywood Motor Car Co., 458 U.S. 263, 269 (1982)(encouragement of delay is fatal
to the vindication of the criminal law); In re Sulfuric Acid Antitrust Litigation, 230 F.R.D. 527, 533
(N.D.Ill.2005)(collecting cases). Shakespeare warned of the dangers of delay: “Defer no time delays have
dangerous ends.” Henry VI, Part I (1592) Act III, sc. ii 1.33. The Seventh Circuit is partial to Twelfth Night.
Sanders v. Venture Stores, Inc., 56 F.3d 771, 775 (7th Cir.1995)(“in delays there lies no plenty.”). No matter.
The point is the same.
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