American Council of The Blind of Metropolitan Chicago et al v. City of Chicago et al
MEMORANDUM OPINION AND ORDER: Signed by the Honorable Jeffrey Cole on 11/19/21: Mailed notice (yt)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
AMERICAN COUNCIL OF THE BLIND
OF METROPOLITAN CHICAGO, ANN
BRASH, MAUREEN HENEGHAN, and
RAY CAMPBELL, on behalf of themselves
and all others similarly situated,
CITY OF CHICAGO,
No. 19 C 6322
Magistrate Judge Jeffrey Cole
MEMORANDUM OPINION AND ORDER
For the following reasons, the plaintiff’s motion to compel the City to designate a 30(b)(6)
witness on the City’s affirmative defenses [Dkt. #120] is denied.
The plaintiff initially sought 30(b)(6) testimony on the City’s affirmative defenses over a year
ago, in Topic No. “10" – which was actually Topic No. 12 – of a notice served back on November
5, 2020. [Dkt. #120-1]. It is unclear why plaintiff waited until so late in discovery to bring the matter
to court. Plaintiff tells us that over those twelve months, it sent the City fourteen letters, and had
four “meet-and-confers.” While the parties should always attempt to work out their discovery
differences in good faith pursuant Local Rule 37.2, somewhere around the eighth or ninth letter in
the eight or ninth month anyone would realize the letters were pointless and that precious time was
These types of email exchanges are far too often caustic and ultimately a waste of time:
[a]nyone can write a letter. But that does not mean that the recipient will fairly consider the
letter before dashing off one of his own that does little more than persist in setting forth his
In one of these email exchanges, on August 20, 2021, the City explained its final stance on
a deposition regarding facts supporting its sixteen affirmative defenses. Affirmative defenses 1
(standing), 2 (failure to state a claim), 3 (statute of limitations), 5 (laches), 10 (competing interests
weigh in the City’s favor) and 12 (the requested modifications are unreasonable or unnecessary)
simply stated legal defenses. Persons knowledgeable regarding facts supporting affirmative defenses
5 (laches) and 6 (no damages) were not City employees. Affirmative defenses 7 (the services,
programs, and activities are accessible when viewed in their entirety), 8 (the City has provided
reasonable access to its services, programs, and activities), 9 (the City has complied with all
requirements), and 11 (technical infeasibility) require expert testimony to identify all facts that are
relevant. The City said it had already produced documentary evidence as to affirmative defenses 4
(failure to join necessary parties) and 13 ( the facilities at issue were constructed or modified
before the effective date of relevant laws or regulations), so testimony would be cumulative.
As to affirmative defenses 14 (legitimate reasons exist for Defendant’s actions/inactions) and 15
(all actions were in good faith), the City said testimony as to the reasonable beliefs regarding its
actions had already been taken in a 30(b)(6) deposition. [Dkt. #120-4, page 2/7].
According to the plaintiffs’ motion, despite receiving that final “no” from the City, and
despite the discovery deadline of November 29, 2021 [Dkt. #111], plaintiffs did nothing for three
partisan point of view. The letters and the emails that one all too often see do little more
than articulate the parties' polar positions with the clash of pretending absolutes left
unresolved. Local Rule 37.2 is based on the teaching of long experience that face-to-face [or
phone] discussions are far more likely to result in compromise and agreement than is an
exchange of letters that are all too easy to brush aside.
Slaven v. Great Am. Ins. Co., 2014 WL 4470723, at *2 (N.D. Ill. 2014).
months until November 5, 20212, when it served a 30(b)(6) notice on the City for the affirmative
defense deposition, setting it for November 22, 2021. [Dkt. #120, at 2, 3]. That’s the version that
is currently at issue and the notice the plaintiff asks the court to enforce, unchanged aside from the
elimination of four affirmative defenses since the previous November, asking the City designate a
witness to testify as to the “factual basis of Defendant’s First, Third, Fifth, Seventh, Eighth, Ninth,
Tenth, Twelfth, Thirteenth, Fourteenth, Fifteenth, and Sixteenth Affirmative Defenses. [Dkt. ##120,
at 6; 120-3]. Obviously, the plaintiffs already knew the City would refuse – they had known since
August 20th – so all this amounted to was the plaintiffs filing the third discovery motion the court
has seen in this case in a matter of just two weeks, at 4 p.m. on November 16, 2021. [Dkt. ##98, 106,
110, 120]. At that point, there were only six business days left in fact discovery; seven if one counts
the Friday following Thanksgiving.
“When parties wait until the last minute . . . they are playing with fire.” Spears v. City of
Indianapolis, 74 F.3d 153, 157 (7th Cir.1996). As has been emphasized to the parties in this case:
"discovery must be completed before the discovery closing date. Discovery requested before the
discovery closing date, but not scheduled for completion before the discovery closing date, does not
comply with this order." [Dkt. #111]. This, it must be remembered, is not my rule. It is a Local Rule
of the United States District Court for the Northern District of Illinois. If the court somehow ruled
on plaintiffs’ motion the instant it was filed, the City would have only five or six days notice to
prepare a witness, or witnesses, to testify on plaintiffs’ twelve affirmative defense topics. Given how
very little time was left in fact discovery by the time plaintiffs belatedly filed their motion, the court
The plaintiff did send the City another email explaining the types of information they expected the
City’s witness to be prepared to testify on. [Dkt. #120-2].
set an extremely short briefing schedule. But, even so, only four days were left before the deadline
that plaintiffs selected and had known about – although were clearly unconcerned with – for two
months. [Dkt. ##91, 93]. That is insufficient notice for a Rule 30(b)(6) deposition on twelve
different, sweepingly broad affirmative defense topics.
Fed.R.Civ.P. Rule 30(b)(1) requires giving reasonable notice of a deposition. “Obviously
no fixed rule can be laid down because much will depend on the other circumstances of the particular
case.” 8A C.Wright, A.Miller & R.Marcus, Federal Practice & Procedure: Civil § 2111 (1994). The
fourteen days Fed. R. Civ. P. 32(a)(5)(a) might be used as a guide. But, the determination of the
reasonableness of the notice for a deposition is case-specific and fact-intensive. Peterson v. Union
Pacific R. Co., 2007 WL 2701268, at *2 (C.D.Ill. 2007). Nieman v. Grange Mut. Ins. Co., 2012 WL
5471949, at *2 (C.D. Ill. 2012). Based on the facts here, and all that has gone before in this case,
the exchange of over a dozen letters, which do not even comply with parties’ obligations under Local
Rule 37.2 (requiring “consultation in person or by telephone”) and multiple disputes left until the
final months of discovery, six days is insufficient notice to prepare a witness on these topics. Cf.
Nieman v. Grange Mut. Ins. Co., 2012 WL 5471949, at *3 (C.D. Ill. 2012)(“Seven business days is
not reasonable notice to prepare a witness to testify on all of these [fourteen topics and thirteen sub-]
topics.”); In re Sulfuric Acid Antitrust Litig., 231 F.R.D. 320, 327 (N.D. Ill. 2005) (denying a motion
to compel the deposition of defendant employees after plaintiff unilaterally noticed depositions with
10 business days’ notice just over 2 weeks before the discovery cutoff); Fernandez v. Penske
Truck Leasing Co., L.P., 2013 WL 438669, at *1 (D. Nev. 2013)(holding that 11 days did not
provide reasonable notice of deposition where plaintiff’s case had been pending nearly a year and
the depositions were noticed two weeks before the discovery cutoff). “The plaintiffs were keenly
aware of all of these facts and of the competing demands imposed by the other discovery disputes
that had been percolating for some period.” Sulfuric Acid, 231 F.R.D. at 327.
Yet, they delayed for a year after they served their deposition notice. Unfortunately, this
approach to the conduct of motion practice occurs all too often. Why it is being done this way is a
mystery. Whatever plaintiffs’ counsel were thinking here, what they have done is unacceptable. See
Flint v. City of Belvidere, 791 F.3d 764, 768 (7th Cir. 2015)(“Those disclosures were due in May
2012, and Flint did not docket her tardy motion – premised entirely on Defendants' malfeasance –
until April 2013. Waiting almost a year to request extra time in the face of an opponent's
sandbagging is certainly neglect, but not of the excusable variety.”).3 The plaintiffs’ motion must
Even if plaintiffs had not so badly gauged the calendar here, their motion is insufficiently
fleshed out. As the party moving to compel discovery, plaintiff bears the burden of proof. PsyBio
Therapeutics, Inc. v. Corbin, 2021 WL 4459527, at *1 (N.D. Ill. 2021); Kove IO, Inc. v. Amazon
Web Servs., Inc., 2021 WL 4516413, at *2 (N.D. Ill. 2021); Belcastro v. United Airlines, Inc.,2020
WL 1248343, at *5 (N.D. Ill. 2020). The determination of whether a movant carries that burden
rests within the “extremely broad discretion” of the district court. Jones v. City of Elkhart, 737 F.3d
1107, 1115 (7th Cir. 2013).
Perhaps plaintiffs’ counsel simply assumed they would be granted an extension of the discovery
deadline. But Fed.R.Civ.P. 16(b)(4) allows “[a] schedule [to] be modified only for good cause and with the
judge's consent.”). Rule 16(b)’s ‘good cause’ standard primarily considers the diligence of the party seeking
the modification. MAO-MSO Recovery II, LLC v. State Farm Mut. Auto. Ins. Co., 994 F.3d 869, 878 (7th Cir.
2021); Trustmark Ins. Co. v. Gen. & Cologne Life Re of Am., 424 F.3d 542, 553 (7th Cir. 2005). I am
disinclined to find that waiting a year to file a motion while writing a dozen emails amounted to diligence.
As the City submits, it is not even clear that a Rule 30(b)(6) deposition is an appropriate
avenue for delving into a party’s affirmative defenses. See Fed. Deposit Ins., Corp. v. Giancola,
2015 WL 5559804, at *2 (N.D. Ill.2015); Fed. Deposit Ins., Corp. v. Giancola, 2015 WL 5559804,
at *2-3 (N.D. Ill. 2015). See also Bruce v. Cook Cty., 2020 WL 11191835, at *2 (N.D. Ill.
2020)(precluding a Rule 30(b)(6) deposition on defenses where contention interrogatories had not
been served); Smithkline Beecham Corp. v. Apotex Corp., 2000 WL 116082, at *9 (N.D. Ill.
2000)(“Consequently, the recipient of a Rule 30(b)(6) request is not required to have its counsel
muster all of its factual evidence to prepare a witness to be able to testify regarding a defense or
claim.”). Courts are not uniform in a stand against using a Rule 30(b)(6) deposition in this manner,
and, such cases “do little to handily resolve the dispute . . . ; rather, they merely drive home the point
that the factual nuances of each case are what guide the courts.” Giancola, 2015 WL 5559804, at *3.
Or, to put it in somewhat different terms: “The character of every act depends on the circumstances in
which it is done.” Schenck v. United States, 249 U.S. 47 (1919)(Holmes, J.). That is where a court’s
extremely broad discretion in discovery matters comes into play. See King v. Ford Motor Co., 872
F.2d 833, 838 (7th Cir. 2017). The manner in which plaintiffs have gone about this, as already
explained, cuts against exercising that discretion in their favor.
But even setting all that aside, the plaintiffs’ motion is simply not convincing. The plaintiffs
argue that the City has only lodged meaningless boilerplate objections to the deposition plaintiffs are
seeking. [Dkt. #120, at 5]. Indeed, boilerplate objections are unacceptable and all but meaningless.
See Curtis v. Costco Wholesale Corp., 807 F.3d 215, 219 (7th Cir. 2015)(court did not abuse its
discretion in deeming facts admitted where plaintiff “provided only boilerplate objections, such as
‘relevance’ and ‘vague and ambiguous.’ ”); Extended Care Clinical v. Scottsdale Ins., 2021 WL
2894163, at *2 (N.D. Ill. 2021)(collecting cases); Zambrano v. Sparkplug Capital, LLC, 2020 WL
1847396, at *1 (N.D. Ill. 2020). But, when courts decry such objections, they are invariably talking
about the unadorned mantra of “vague, overly broad, and unduly burdensome.”Alight Solutions v.
Thomson, 2021 WL 5038775, at *3 (N.D. Ill. 2021);Ezell v. City of Chicago, 2021 WL 2136395, at
*7 (N.D. Ill. 2021)(collecting cases). But, the City has gone beyond those all-too-common stock
objections here, noting that some topics don’t rely on underlying facts as they are legal defense,
others are in the vein of expert testimony, and as to still others, documentary evidence had already
been produced. So, plaintiffs’ motion is simply mistaken in that respect.
Plaintiffs also claim that “regarding almost half of its affirmative defenses, the City refuses
to designate a witness because those defenses ‘simply state legal defenses to your claims.’” [Dkt.
#120, at 5]. That would be affirmative defenses 1 (standing), 2 (failure to state a claim), 3 (statute
of limitations), 5 (laches), 10 (competing interests weigh in the City’s favor) and 12 (the requested
modifications are unreasonable or unnecessary) simply stated legal defenses. Obviously, a purely
legal defense like “failure to state a claim” should never have been included in a deposition notice
in the first place, as it is directed to the allegations in plaintiff’s Complaint, and plaintiff has since
conceded it was wrong to have done so. [Dkt. # 122, at 2 n.1]. As for standing, the City has agreed
to stipulate that does not intend to rely on any testimony from witnesses it controls on the standing
defense. [Dkt. #125, at 2].4
The City has also suggested a better path would be contention interrogatories but, of course, the
time for the parties to have negotiated on such matters was back in August, not while briefing a motion filed
in the eleventh hour of fact discovery. That being said, there is, of course, nothing to preclude the parties
from accommodating one another in this matter, even after discovery closes on November 29, 2021, but they
will not have recourse to the court if any disputes should arise. Fact discovery supervision is over as of
November 29th. There are many other cases in the queue. Chicago Observer, Inc. v. City of Chicago, 929
F.2d 325, 329 (7th Cir. 1991).
The plaintiff does contend there are underlying factual components even to some of the
City’s legal defenses. As the plaintiff submits, a defense of laches requires a showing of prejudice,
W. Bend Mut. Ins. Co. v. Procaccio Painting & Drywall Co., 794 F.3d 666, 678 (7th Cir. 2015),
which would be a factual matter only the defendant would know about. The only other defenses
plaintiff takes issue with are affirmative defenses fourteen (that legitimate reasons exist for the
City’s actions/inactions) and fifteen (that all actions were in good faith). As already noted, the City’s
objection as to providing testimony as to these two defenses was that it would be unnecessarily
duplicative because “[t]he ‘actions’ at issue are duplicative of the other topics specified in your
30([b])(6) notice.” Plaintiff claims that because the City refused to designate witnesses as to Topic
12 – the affirmative defenses topic – plaintiff could not ask complete questions regarding affirmative
defenses in the previous deposition. But the City’s point is that, nevertheless, the underlying facts
were covered sufficiently in Topics 1-11 of that deposition. And, there is nothing to indicate they
As for the rest, the plaintiffs choose not to address them, apparently assuming the court
would research and develop arguments as to the remaining topics in plaintiffs’ behalf. [Dkt. #120,
But, undeveloped and perfunctory arguments are, of course, waived.
Rose-Hulman Inst. of Tech., 999 F.3d 1031, 1043 (7th Cir. 2021); Schaefer v. Universal Scaffolding
& Equip., LLC, 839 F.3d 599, 607 (7th Cir. 2016). And it is improper for the court to act as counsel
for any party. See, e.g., United States v. Sineneng-Smith, ––– U.S. ––––, 140 S.Ct. 1575, 1579, 206
L.Ed.2d 866 (2020); United States v. Gustin, 642 F.3d 573, 575 (7th Cir. 2011)(“[I]t is not a judge's
job to assist one advocate at another's expense.”); Fednav Int'l Ltd. v. Cont'l Ins. Co., 624 F.3d 834,
842 (7th Cir. 2010)(“We will not fill th[e] void by crafting arguments and performing the necessary
legal research . . . .”). United States v. Gustin, 642 F.3d 573, 575 (7th Cir. 2011)(“[I]t is not a judge's
job to assist one advocate at another's expense.”).
For the reasons set forth above, the plaintiff’s motion to compel the City to designate a
30(b)(6) witness on the City’s affirmative defenses [Dkt. #120] is denied.
UNITED STATES MAGISTRATE JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?