Ross v. Gossett et al
ORDER DENYING 557 Motion for Leave to Serve Revised Requests to Admit and DENYING 558 Motion for Extension of Time to Complete Discovery. Signed by Magistrate Judge Mark A. Beatty on 2/18/21. (klh2)
Case 3:15-cv-00309-SMY Document 569 Filed 02/18/21 Page 1 of 20 Page ID #21862
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DEMETRIUS ROSS, et al.,
GREG GOSSETT, et al.,
Case No. 3:15-CV-309-SMY-MAB
MEMORANDUM AND ORDER
BEATTY, Magistrate Judge:
This matter is before the Court on the Motion for Protective Order Regarding
Certain Topics of Plaintiffs’ Notice for Rule 30(b)(6) Deposition (Doc. 556) filed by all
Defendants, the Motion for Leave to Serve Revised Requests to Admit (Doc. 557) filed by
Plaintiffs, and the Motion for Extension of Time to Complete Discovery as to Certain
Specified Items (Doc. 558) filed by Plaintiffs. Pursuant to 28 U.S.C. § 636(b)(1)(A) and
Amended Administrative Order No. 257, District Judge Staci M. Yandle referred these
three motions to the undersigned for a ruling (Doc. 560).
The undersigned held a hearing on the three motions on February 2, 2021 (Docs.
565, 567). Defendants’ motion for protective order was denied on the record at the hearing
and Plaintiffs’ two motions were taken under advisement. Before delving into the merits
of Plaintiffs’ motions, it is useful to give a brief background on the procedural history of
This class action concerns facility-wide shakedowns conducted in 2014 at four
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Illinois Department of Corrections prisons: Menard, Illinois River, Big Muddy, and
Lawrence. Plaintiffs are inmates and they contend the shakedowns were executed in a
uniform manner by the “Orange Crush” Tact Team in accordance with a plan that was
formulated by senior prison officials. Plaintiffs further contend that the shakedowns were
conducted in an abusive and unconstitutional fashion.
Judge Yandle granted Plaintiffs’ motion for class certification on March 26, 2020
and certified a class against the 22 administrative Defendants (Doc. 519).
subsequently instructed the parties to submit a joint proposed revised scheduling order,
including deadlines for discovery on the merits of Plaintiffs’ claims (Doc. 521). The parties
proposed a deadline of September 7, 2020 for fact discovery and a deadline of December
7, 2020 for expert discovery, which were accepted by Judge Yandle in a scheduling order
entered on April 14, 2020 (Docs. 523, 525). Defendants then requested a stay of discovery
while they pursued an appeal of the class certification order (Docs. 524, 536). Plaintiffs
opposed Defendants’ request, arguing that a stay on all discovery would “[grind] all
progress to a halt” and simply prolong the inevitable because fact discovery would have
to take place regardless of the outcome of the appeal (Docs. 526, 540). That is, even if class
certification was overturned, the Plaintiffs’ individual claims related to the shakedowns
would still move forward (Docs. 526, 540). On July 21, 2020, Judge Yandle agreed to stay
expert discovery but ordered fact discovery to continue (Doc. 541).
There are several hundred other individual Defendants who were IDOC employees and participated in
the shakedowns (see Doc. 197). In total, there are approximately 500 Defendants.
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On September 1, 2020—six days before the deadline for fact discovery—Plaintiffs
filed a motion asking to extend the deadline (Doc. 545). Despite their previous insistence
that discovery must go on and this case must continue to move forward, Plaintiffs had not
conducted any of their own discovery in the four and half months since the scheduling
order was entered (see Doc. 545, p. 7; Doc. 546, pp. 2, 3). Judge Yandle agreed to a slight
extension and ordered written discovery to be served by October 15, 2020 and all fact
discovery to be completed by December 15, 2020 (Doc. 549). Notably, Plaintiffs
contemplated that the deadline for written discovery applied to requests for admission
under Rule 36 (see Doc. 545, p. 4). Judge Yandle warned the parties that the deadlines
would not be continued “absent extraordinary circumstances” (Doc. 549).
Plaintiffs issued two sets of Requests to Admit, the first on September 29 and the
second on October 15, 2020, to each of the 22 class Defendants (see Docs. 550, 551, 554). In
total, there were 178 Requests that required a response from each Defendant individually.
It amounted to 3,916 Requests. 2 Defendants asked for and were granted a protective
order and relieved of their obligation to respond to the Requests (Doc. 554). The
undersigned concluded that Plaintiffs’ shotgun approach was inappropriate. The number
of Requests—3,916 in total—was excessive, particularly at this stage of the proceedings
after a massive amount of discovery had already been done. The Requests did not reflect
the discovery already obtained, were not tailored to the specific Defendants, and were
duplicative of discovery already obtained (Doc. 554).
Plaintiffs also issued 41 interrogatories to each of the 22 Defendants and ten requests to produce (Doc.
550, p. 1). Defendants did not seek a protective order as to the interrogatories or requests to produce.
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On December 15, 2020—the deadline for all fact discovery—Plaintiffs filed
motions seeking another extension of the deadline for an unspecified duration so that
they could conduct 32 additional depositions and issue to the 22 class Defendants against
whom the class was certified a collective total of 925 revised Requests to Admit and 506
revised interrogatories (Doc. 558; Doc. 557).3 Defendants filed responses in opposition to
both motions (Docs. 561, 562). Plaintiffs filed a reply in support of their motion to extend
the discovery deadline (Do. 564).
“Scheduling orders and court-imposed deadlines matter.” Bowman v. Korte, 962
F.3d 995, 998 (7th Cir. 2020). Rule 16 provides that “[a] schedule may be modified only
for good cause and with the judge’s consent.” FED. R. CIV. P. 16(b)(4). “In making a Rule
16(b) good-cause determination, the primary consideration for district courts is the
diligence of the party seeking amendment.” Alioto v. Town of Lisbon, 651 F.3d 715, 720 (7th
Cir. 2011) (citations omitted). Furthermore, Judge Yandle previously warned the parties
that the discovery deadlines in this case were firm and would only be modified upon a
showing of extraordinary circumstances (Doc. 549).
When it comes to discovery, the district court has wide discretion in settling
disputes, determining the scope of discovery, and otherwise controlling the manner
To the extent that Defendants take issue with Plaintiffs’ updated Rule 26(a)(1) disclosures that were
served on December 15, 2020 adding numerous potential class member witnesses (see Doc. 561), this issue
is not properly before the Court. Defendants must file a motion at the appropriate time challenging these
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of discovery. See, e.g., Thermal Design, Inc. v. American Soc’y of Heating, Refrigerating and
Air–Conditioning Engrs., Inc., 755 F.3d 832, 839 (7th Cir. 2014) (citation and quotation
omitted). There were a number of considerations the undersigned took into account in
deciding the motions at issue. One the one hand, the undersigned is cautious about
foreclosing any legitimate avenue of discovery prematurely and does not want to
hamstring Plaintiffs in discovering relevant information necessary to prove their case.
But by the same token, a district court has a duty, “of special significance in lengthy and
complex cases where the possibility of abuse is always present,” to supervise and limit
discovery when it feels the discovery is cumulative, unnecessary, designed to annoy or
harass, excessively expensive, or only marginally important. Mr. Frank, Inc. v. Waste
Mgmt., Inc., No. 80 C 3498, 1983 WL 1859, at *1 (N.D. Ill. July 7, 1983) (citations omitted).
“The discovery rules are not a ticket . . . to an unlimited, never-ending exploration of
every conceivable matter that captures an attorney’s interest.” Robinson v. Stanley, No. 06
C 5158, 2009 WL 3233909, at *3 (N.D. Ill. Oct. 8, 2009) (quoting Vakharia v. Swedish Covenant
Hosp., 1994 WL 75055 at *2 (N.D. Ill. 1994)). “Parties are entitled to a reasonable
opportunity to investigate the facts—and no more.” Robinson, 2009 WL 3233909, at *3
(quoting Vakharia, 2009 WL 3233909, at *3).
A massive amount of discovery has already taken place in this case. Plaintiffs have
thus far issued a collective total of over 1,000 interrogatories to the 22 class Defendants
(Doc. 550, p. 1 n.1, p. 3; Doc. 562, p. 3). Plaintiffs have issued over 60 requests to produce,
and in response, Defendants have thus far turned over nearly 64,000 pages of documents
(Doc. 550, p. 1 n.1, p. 3; Doc. 562, p. 3). Defendants have issued at least 500 of their own
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interrogatories, as well as their own requests to produce. Additionally, more than a dozen
putative class members have been interviewed and at least 50 others have submitted
declarations (see Doc. 481-1). All 500-something Defendants have filled out a survey. And
between the two sides, approximately 50 depositions have been taken (see Doc. 481-1, see
Doc. 561, pp. 3, 7). The parties have also agreed that two more individual depositions will
occur, as will a corporate representative deposition covering dozens of topics and
subtopics (see Doc. 556-1). And, of course, the parties still anticipate expert discovery,
which is currently on hold pending resolution of Defendants’ appeal (Doc. 541).
Plaintiffs are now seeking to extend the deadline for fact discovery so they can
conduct 32 more depositions and issue revised Requests to Admit that will require
hundreds of individual responses (as well as issue a revised version of the interrogatories
they already served but Defendants have not yet responded to). At no point did Plaintiffs
ever indicate how much additional time they wanted or offer an estimate for how long
they thought the additional discovery would take.
Plaintiff’s last-minute wish list is eye-popping, given the timing of it and the extent
of what they are seeking on top of the mountains of discovery already furnished. They
did not articulate any extraordinary circumstances that justify extending the discovery
deadline (see Docs. 557, 558, 564). Nor did Plaintiffs explain how they have been diligent
in pursuing discovery (see Docs. 557, 558, 564). Indeed, from a review of the record, the
Court would be hard pressed to see how Plaintiffs could reasonably argue that they have
been diligent during the merits-based discovery period. As previously indicated,
Plaintiffs conducted no discovery whatsoever for the first four and a half months after
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the scheduling order was entered and had to request an extension of time. Then they
waited until the last four days of the extended discovery period to tell Defendants they
wanted to take 32 more depositions.
Notably, Plaintiffs did not serve Notices of Deposition, they simply told defense
counsel via email they intended to conduct these depositions (Doc. 561-2, Doc. 561-3).
Defense counsel responded via email and, of course, refused to agree to the request (Doc.
561-4). Plaintiffs’ counsel then replied, indicating they “were somewhat surprised” by
defense counsel’s refusal but “given [the] objection, [they would] seek leave of the Court
to conduct depositions of the witnesses [they] have identified” (Id.).4 After the motions
were fully briefed (Docs. 556–558, 561–564), one month went by before a hearing was held
on the motions (Docs. 565, 567). During that time, Plaintiffs made no attempt to negotiate
with Defendants and pare down their list, or reach some sort of compromise. They simply
left it to the Court to sort out.
As for the revised Requests to Admit, Plaintiffs waited until two weeks before their
extended deadline of October 15, 2020 to serve the bulk of their initial Requests (156
Requests), and then served twenty-two more on the deadline itself (see Docs. 550-1, 5502). Defendants moved for a protective order, and Plaintiffs responded, arguing only that
Defendants’ motion should be denied (Doc. 551). Plaintiffs never asked for permission to
amend and re-serve their Requests in the event the protective order was granted (see Doc.
551). And after the protective order was granted on December 4, 2020 (Doc. 554), Plaintiffs
To the extent there were any other conversations between the parties before Plaintiffs filed their motions,
the Court is unaware of them.
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waited another eleven days—until the day of the discovery cut off—to ask for leave to
serve revised Requests (Doc. 557). Again here, there is no indication that Plaintiffs made
any effort to discuss or reach an agreement with Defendants regarding their desire to
serve revised Requests before filing their motion or while awaiting the hearing (see, Docs.
In addition to Plaintiffs’ dilatoriness and lack of exceptional circumstances, the
Court also has concerns regarding the purpose of the additional discovery Plaintiffs want
to conduct. It is not clear or obvious to the Court what the importance of the discovery is
in resolving the issues. The volume of the last-minute discovery Plaintiffs seek is
staggering. As Defendants pointed out, the 32 depositions Plaintiffs now want to take is
more than ten times the number of depositions they noticed up during the entire meritsbased discovery period from April 2020 to December 15, 2020 (Doc. 561, p. 5). And it is
more than the total number of depositions Plaintiffs took—26—over the course of the
entire case (Id.).
Additionally, Plaintiffs have long known about the individuals they want to
depose. Twenty of those individuals are named as Defendants in the operative complaint
but are not part of the group of 22 against whom the class was certified. Plaintiffs have
known about some of these individuals since the inception of the case in March 2015 and
others since at least October 2016, when the amended complaint was filed (see Docs. 1,
197). The other 12 individuals that Plaintiffs want to depose are IDOC medical officials.
Plaintiffs have known that medical personnel were potential witnesses since April 2016,
when Defendants filed their initial disclosures (Doc. 561-5). And Plaintiffs learned the
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specific identity of these medical personnel on October 30, 2020 (Doc. 561, p. 7; see Doc.
561-4). That left Plaintiffs with 45 days until the discovery cutoff on December 15, 2020 to
notice up the depositions. But they never did. Rather, Plaintiffs waited until four days
before discovery cutoff to tell defense counsel that they wanted to depose the twelve
medical officials and six of the individual Defendants (Doc. 561-2). And they waited until
one day before the discovery cutoff to say that they wanted to schedule depositions for
fourteen other Defendants (Doc. 561-3).
The Court was wholly unpersuaded by the reasons Plaintiffs gave as to why they
waited until the eleventh hour to get the ball rolling on deposing these 32 individuals.
Plaintiffs’ main contention was there was a misunderstanding between the parties—they
thought Defendants did not object to conducting depositions past the discovery deadline
so long as the deponents had been identified before the discovery cut-off (Doc. 558). But
that simply does nothing to explain why Plaintiffs waited until the waning hours of
discovery to divulge their intention to depose these individuals when they could have
done so much sooner. “[W]hen parties wait until the last minute to comply with a
deadline, they are playing with fire.” Spears v. City of Indianapolis, 74 F.3d 153, 157 (7th
As another example, at one point, Plaintiffs’ counsel remarked that discovery has
proceeded in phases and “until recently” it was focused on class certification issues. But
discovery related to class certification was long over by the time Judge Yandle entered the
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scheduling order officially commencing merits-based discovery on April 14, 2020.5 It is
unclear how anything related to class-certification discovery could have impeded or
distracted from merits-based discovery. Plaintiffs’ counsel also lamented that defense
counsel disclosed all 500-something Defendants as potential witnesses and never tried to
pare down that list. The irony of this finger pointing is not lost on the Court. Plaintiffs, of
course, are the ones who sued 500-something defendants in the first place. They have the
power to narrow the list of potential Defendant-witnesses anytime they want by simply
dismissing some of those individuals. In short, Plaintiffs did not provide any good reason
why they could not have sought to depose these 32 individuals sooner.
Plaintiffs also did not give the Court any reason to think that all 32 depositions
were necessary. The most they could offer is that they were “trying to avoid trial by
ambush.” But it is clear that Plaintiffs are not completely in the dark as to what these
individuals will testify about. As defense counsel pointed out, Plaintiffs have received
medical records as well as surveys from each of the 500-something Defendants regarding
their personal recollections of the shakedowns. Simply put, when Plaintiffs were
specifically asked why these depositions were necessary and what new information they
hoped to gain, they offered one generality, without any concrete reasons or specifics.
Finally, Plaintiffs never tried to negotiate with defense counsel or propose a
As far as the Court can tell, discovery related to class certification was complete by the time Plaintiffs
filed their motion for Class certification on October 12, 2018 (see Doc. 481, Doc. 481-1, Doc. 486, Doc. 491).
The motion was fully briefed by December 2018 (see Doc. 503). It is not clear, and Plaintiffs did not explain,
whether there was any discovery related to class certification that remained outstanding after the briefing
was completed (see Doc. 558).
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number of depositions less than 32. And they never gave the Court a compromise
position either. Once again, Plaintiffs have taken an all or nothing approach to this
particular discovery issue (see Doc. 554).
As for the revised Requests to Admit, Plaintiffs want to serve 37 Requests on all 22
Defendants, as well as, three additional Requests for each of the four facilities on only
“the sub-set of Defendants likely to have knowledge about that specific facility” (as
Plaintiffs put it) (Doc. 557, p. 3). All in all, it amounts to a collective total of 925 Requests
to Admit.6 As outlined above, Plaintiffs were not particularly diligent in seeking to issue
their original Requests to Admit or the revised version. And the Court has concerns
regarding the form of these Requests and whether they will actually serve a useful
When used properly, “Rule 36 allows parties to narrow the issues to be resolved
at trial by effectively identifying and eliminating those matters on which the parties
agree.” United States v. Kasuboski, 834 F.2d 1345 (7th Cir. 1987); see also, e.g., 8A CHARLES
ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 2256 (3d ed.)
(“[T]he purpose of the rule . . . was and is to eliminate from controversy matters that will
not be disputed.”). “Essentially, Rule 36 is a time-saver, designed ‘to expedite the trial
and to relieve the parties of the cost of proving facts that will not be disputed at trial.’” Perez
v. Miami-Dade Cty., 297 F.3d 1255, 1268 (11th Cir. 2002) (emphasis in original) (citation
excluded); accord Tamas v. Family Video Movie Club, Inc., 301 F.R.D. 346, 347 (N.D. Ill. 2014).
Some of the Requests may lend themselves to a collective answer from Defendants, but many of the
Requests require individual responses, which Plaintiffs’ counsel acknowledged at the hearing.
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The Court begins by noting that Plaintiffs have cleaved away three-quarters of the
Requests they originally served. They went from a collective total of 3,916 Requests to a
revised collective total of 925. Defendants assert the revised number is still excessive
(Doc. 562). Rule 36 does not limit the number of requests that can be served, see FED. R.
CIV. P. 36, however, ”[c]ourts ‘routinely disallow requests for admission that run into the
hundreds on the grounds that they are abusive, unreasonable, and oppressive.” Tamas v.
Family Video Movie Club, Inc., 301 F.R.D. 346, 347 (N.D. Ill. 2014) (citation omitted). While
925 is certainly a lot, the Court is not necessarily convinced that it is per se excessive given
the number of Defendants and the nature of the claims. However, there are other
problems with Plaintiffs’ Requests.
Plaintiffs have been adamant in their briefs and at the hearing that the purpose of
their Requests is to take uncontested issues of fact off the table at trial (see, e.g., Docs. 557,
551). But that assertion does not hold water for many of the Requests. For instance,
Plaintiffs issued a number of Requests pertaining to portable video equipment,
photographs, preservation of video footage (see Doc. 557-1). These issues are also the
subject of interrogatories that Plaintiffs served (see, e.g., Doc. 557-2) and topics included
for discussion during the Rule 30(b)(6) corporate representative deposition (Doc. 556-1),
which demonstrates Plaintiffs do not yet know all the facts concerning these issues.
Therefore, the purpose of these Requests is to gather information, and they are just one
of several tactics Plaintiffs are using as part of a discovery sweep to get that information.
This is not the proper use of Requests to Admit. Requests to Admit are intended to
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confirm facts already known to both sides.7
Plaintiffs also want to serve other Requests they cannot seriously or reasonably
expect to be admitted, and which therefore cannot possibly serve to eliminate an
uncontested issue. Generally speaking, requests about controversial or disputed issues
are permissible. See Fed. R. Civ. P. 36(a)(5). However, courts in some instances have
declined to compel a party to respond to requests to admit that seek information related
to the fundamental disagreement of the lawsuit, perceiving it to be “a useless exercise.”
Sommerfield v. City of Chicago, 251 F.R.D. 353, 356 (N.D. Ill. 2008) (citing Vakharia v. Swedish
Covenant Hospital, 1994 WL 75055 at *7 (N.D. Ill. 1994)).8
Here, for example, Defendants ask nine Defendants, including Greg Gossett (who
was the warden at Illinois River at the time of the shakedowns at issue), to admit “there
were fixed-position video cameras installed at Illinois River in 2014 recording areas of the
prison that would have captured all or part of the events of the April 2014 Shakedowns
at Illinois River” (Doc. 557-1, no. 42). However, Gossett clearly and unequivocally
8B FEDERAL PRACTICE AND PROCEDURE § 2253 (“Strictly speaking Rule 36 is not a discovery procedure at
all, since it presupposes that the party proceeding under it knows the facts or has the document and merely
wishes its opponent to concede their genuineness.”); 7 MOORE'S FEDERAL PRACTICE § 36.02 (3d ed. 2000)
(“Because Rule 36 was not designed to elicit information, to obtain discovery of the existence of facts, or
obtain production of documents, requests for admission should not be used as a method of discovery for
those purposes.”). See also, e.g., Tamas, 301 F.R.D. at 347 (“Rule 36 is not a discovery procedure.”).
See also Tamas v. Family Video Movie Club, 301 F.R.D. 346, 347 (N.D. Ill. 2014) (excusing the plaintiffs from
responding to requests to admit because, in part, the requests sought information related to the
fundamental disagreement of the lawsuit and were therefore not “designed to identify and eliminate those
matters on which the parties agree”); Colin E. Flora, It's A Trap! The Ethical Dark Side of Requests for
Admission, 8 ST. MARY'S J. LEGAL MAL. & ETHICS 2, 32 (2017) (“When the matter is clearly subject to a good
faith dispute—such that no reasonable party would admit—the good-faith obligation dictates that requests
not be sought.”)
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testified at his deposition that there were no video cameras in the cellhouse or anywhere
in the facility at the time of the shakedowns (Doc. 562, p. 4; Doc. 562-4). Defendant David
White also testified that he was not aware of any video cameras at Illinois River (Doc.
562, p. 4; Doc. 562-5). Plaintiffs never gave the Court any reason to believe there was other
evidence tending to show that there were cameras at Illinois River. Likewise, nine of the
revised Requests begin: “Admit that the plan for the 2014 Shakedowns created by
Defendants White and McAllister called for members of the Tact Team to . . . . “ (see Doc.
557-1, pp. 2–3). Whether such a plan existed is one of the central disputes in this case.
And Defendants have repeatedly and vociferously denied there was a plan; they have
also thoroughly explained the reasons for their denial (Doc. 562, p. 5; Doc. 491, pp. 3, 15–
For these example Requests, it appears to the Court that Plaintiffs are not trying to
narrow issues for trial but are instead just duplicating discovery already conducted.
Plaintiffs have not shown there is anything to be gained from posing such Requests. They
will not serve the ultimate purpose of the Rule or lead to useful information that Plaintiffs
do not already have (or are simultaneously seeking to gain through other means). They
will only serve to drive up costs and extend an already protracted discovery campaign.
Furthermore, many of the revised Requests, like the originals, are not tailored in
any manner. One of the court’s main criticisms of the original Requests was that they
were not tailored to any specific Defendant—the exact same 178 requests were issued to
all 22 Defendants (see Doc. 554). In their revised version, Plaintiffs heeded the Court’s
criticism for 12 of its Requests—they posed the same three Requests as to each of the four
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facilities at issue to only “the sub-set Defendants likely to have knowledge about that
specific facility.” (see Doc. 557-1, no. 38–49). Plaintiffs did not, however, heed the Court’s
critique as to other Requests and left them completely untailored (see id., no. 1–28).
The first seven revised Requests pertain to Defendants’ authority to record or
photograph the shakedowns and to preserve the footage (Doc. 557-1). They ask about the
“2014 Shakedowns” generally (see id.). For example, Request #4 asks all 22 Defendants to
admit that they “had the authority to order that portable video camera equipment be
utilized to record any portion of the 2014 Shakedowns” (Doc. 557-1, no. 4; see also 1–3, 5–
7). Plaintiffs are asking all 22 Defendants to admit that they had authority to issue orders
as to every facility at issue. But 17 of the 22 Defendants were officials at only one facility.
That is, they were wardens, assistant wardens, tact commanders, and assistant tact
commanders at Menard, Illinois River, Big Muddy, or Lawrence. There is no indication
these individuals had authority to issue orders at facilities other than the one where they
worked. Thus there is no reason to think, for example, that the assistant warden at Illinois
River had any authority to issue orders at Menard. Consequently, a significant majority
of the Defendants will not be able to simply admit or deny this Request, or other similar
Requests, without qualification or explanation.9
Another category of the revised Requests asks about the facts of how the
shakedowns were conducted, such as staffing levels, how strip searches were conducted,
E.g., Sommerfield, 251 F.R.D. at 355 (“[R]equests for admission must be simple, direct and concise so they
may be admitted or denied with little or no explanation or qualification.”) (citation omitted); 8B FEDERAL
PRACTICE AND PROCEDURE § 2258 (“Each request for an admission should be phrased simply and directly
so that it can be admitted or denied without explanation.”)
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how prisoners were handcuffed, how the prisoners were lined up and moved through
the facility, etc. (Doc. 557-1). Plaintiffs originally issued separate requests about each
aspect of the shakedowns as to each facility (see Doc. 550-1). But in an effort to reduce the
overall number of Requests, Plaintiffs combined their singular requests about the
shakedown at each facility into one request about the “2014 Shakedowns” generally (see
id.). For example, revised Request #10 asks Defendants to “admit that, during the 2014
Shakedowns, members of the Tact Team shouted and used their batons to bang on bars
and railings as they entered the housing unit.” (Doc. 557-1, no. 10; see also no. 1–9, 12, 14,
16, 18, 20, 21, 24, 26, 28). Plaintiffs are asking all 22 Defendants about the facts of every
shakedown at every facility at issue. But, again, 17 of the 22 Defendants were officials at
only one facility. They did not oversee and were not present for the shakedowns at facilities
other than the one they worked at. By asking, for example, officials from Illinois River,
Big Muddy, and Lawrence about events that occurred at Menard, Plaintiffs are essentially
doing nothing more than asking those officials to affirm testimony made by other
witnesses (namely, officials from Menard) during their depositions. There are cases that
hold this type of request to admit is permissible,10 while other cases come to the opposite
See generally T. Rowe Price Small-Cap Fund, Inc. v. Oppenheimer & Co., 174 F.R.D. 38, 43 (S.D.N.Y. 1997)
(“[U]nder certain circumstances, parties may be required to inquire of third parties in order to properly
respond to requests to admit, such a requirement is far from absolute.”). See also Odom v. Roberts, No. 5:19CV-253-MCR/MJF, 2020 WL 6882944, at *4 (N.D. Fla. Nov. 9, 2020) (“A reasonable inquiry generally
includes requesting information from co-defendants and their counsel. A review of a deposition transcript
also would be part of a ‘reasonable inquiry.’”) (citations omitted); Uniden Am. Corp. v. Ericsson Inc., 181
F.R.D. 302, 304 (M.D.N.C. 1998) (“[A] party must make inquiry of a third party when there is some identity
of interest manifested, such as by both being parties to the litigation, a present or prior relationship of
mutual concerns, or their active cooperation in the litigation, and when there is no manifest or potential
conflict between the party and the third party. Also, if the third party has spoken to the matter in a
deposition, a party can be compelled via Rule 36 to admit or deny, that is, to indicate whether it will
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Here, the Court still does not understand what purpose it serves to ask all 22
Defendants to admit what happened at each facility. Plaintiffs did not offer any
satisfactory explanation. They argued at the hearing that having only some of the
Defendants respond “doesn’t advance the ball for us . . . that’s an imperfect admission. .
. . It doesn’t take the issue off the table.” According to Plaintiffs, the Defendants who did
not respond are not bound by the admissions, and they could come to trial and testify to
the contrary. But Plaintiffs’ argument is unconvincing at this stage in the litigation. For
one thing, we don’t yet know whether this case will be tried as a class action or not. And
even if all 22 Defendants against whom the class is served admit a Request, there are still
some 500 other Defendants still in this case who will not be bound by the responses.
introduce contrary evidence.”); A. Farber & Partners, Inc. v. Garber, 237 F.R.D. 250, 256 (C.D. Cal. 2006)
(defendants had to consult with one another in order to satisfy reasonable inquiry requirement where they
all had close personal and business relationship with each other, were represented by the same counsel,
and had common interest against the plaintiff); In re Gulf Oil/Cities Serv. Tender Offer Litig., Nos. 82 Civ.
5253, 87 Civ. 8982(MBM), 1990 WL 657537, at *3–4 (S.D.N.Y. May 2, 1990) (finding plaintiff must consult
non-party’s' counsel regarding figures in documents produced by non-party, where plaintiff and non-party
have parallel interests and have been closely cooperating in conducting discovery in two related cases); Al–
Jundi v. Rockefeller, 91 F.R.D. 590, 594–95 (W.D.N.Y. 1981) (defendant must consult with co-defendants and
their counsel, where such efforts do not require extraordinary expense or effort).
See Reitz v. Creighton, No. 15 C 1854, 2019 WL 5798680, at *2–3 (N.D. Ill. Nov. 7, 2019) (requests to admit
asking defendant to admit what other co-defendants did or saw were not proper and defendant did not
have to review co-defendants’ deposition transcripts in order to satisfy reasonable inquiry requirement; “it
is unnecessary to demand a party admit or deny what is contained in a deposition.”); Knapp v. Cate, No.
1:08-CV-01779-AWI, 2012 WL 2912254, at *2 (E.D. Cal. July 16, 2012) (issuing protective order and excusing
defendants from responding to requests to admit about incidents they were not involved in); Hanley v.
Como Inn, Inc., No. 99 C 1486, 2003 WL 1989607, at *4 (N.D. Ill. Apr. 28, 2003) (defendant not required to
consult with co-defendants in order to make a reasonable inquiry when they did not have an amicable
relationship); T. Rowe Price, 174 F.R.D. at 43 (defendant cannot be forced to admit or deny facts testified to
by a third party witness when about which defendant has no personal knowledge about the matter, there
may be other evidence on the matter and defendant has reason to believe the third party may have interests
adverse or hostile to defendant’s).
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Therefore, it cannot be determined at this point what effect an admission from all 22 class
Defendants will actually have on issues at trial.
Second, Plaintiffs’ fear about the consequence of not having all 22 Defendants
respond appears to be overblown. For example, if the officials from Menard (and higherlevel administrators responsible for supervising the shakedowns) admit that the tact team
shouted and banged their batons as they entered the cellhouse at Menard, then it is a
virtual certainty the warden from Lawrence—who was not present for nor involved in
the shakedowns at Menard—is not going to be called to offer contrary testimony. See FED.
R. EVID. 602 (requiring a witness to have personal knowledge of the matters to which he
In considering the totality of the circumstances, particularly Plaintiffs’
unexplained dilatoriness in pursuing their Requests to Admit, the lack of exceptional
circumstances, and the myriad problems with the revised Requests, Plaintiffs’ motion for
leave to serve them must be denied.12
As previously stated, the undersigned does not endeavor to hamstring Plaintiffs
in their ability to prove their case. The Court probed and probed to get to the heart of the
matter and fully understand Plaintiffs’ reasons for wanting to conduct 32 depositions and
issue hundreds of Requests to Admit. None of the explanations Plaintiffs offered for their
extraordinary discovery request passed muster.
The parties addressed the revised Requests to Admit only generally and collectively, and so the Court
likewise will not individually address the revised Requests to determine whether any of them are
appropriate to be served as is.
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That being said, there is an obvious benefit to eliminating uncontested issues of
fact and reducing the time spent in trial. The Court is therefore willing to entertain a
request for leave to serve Requests to Admit from either side after fact discovery is fully
complete. Any such Requests must be carefully drafted—simple, straightforward, and
precise—must reflect the evidence produced in the case, and must be directed only at the
appropriate parties. To the extent Requests are directed at all Plaintiffs or all Defendants,
counsel must have a clear and defensible reason for doing so.
As a final matter, the parties are instructed that before filing any future motions
about discovery disputes, they are expected to engage in the meet and confer process
outlined in the undersigned’s case management procedures. Namely, the parties must,
in good faith, confer or attempt to confer with one another regarding the dispute. A good
faith effort means more than simply an exchange of letters or e-mails. It means the parties
have attempted to resolve the dispute through a telephone call or a video conference.
And in this instance, the Court would encourage the parties to engage in a video
conference to enhance the dialogue and communication between the parties. Simply put,
the parties are expected to have actually spoken to one another about the issue in dispute.
Any future discovery motion that does not satisfy this meet and confer process will be
Additionally, the parties are further cautioned that, for any future discovery
disputes in this case, the Court will consider imposing attorney fees and costs against the
Plaintiffs’ Motion for Leave to Serve Revised Requests to Admit (Doc. 557) and
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Case 3:15-cv-00309-SMY Document 569 Filed 02/18/21 Page 20 of 20 Page ID #21881
Motion for Extension of Time to Complete Discovery as to Certain Specified Items (Doc.
558) are DENIED.
IT IS SO ORDERED.
DATED: February 18, 2021
s/ Mark A. Beatty
MARK A. BEATTY
United States Magistrate Judge
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