Baker v. Hertz et al
ORDER GRANTING IN PART 79 MOTION Defendants' Motion for Relief from April 19, 2016 Order re 78 Order on Motion to Compel, Order on Motion for Recruitment of Counsel, filed by Defendants; DENYING 85 MOTION to Suppress fil ed by Jeffrey Baker. Discovery Dispute Hearing set for 10/4/2016 at 2:00 PM in East St. Louis Courthouse before Magistrate Judge Donald G. Wilkerson. Defendants to appear by counsel, Plaintiff to appear by video-conference. Signed by Magistrate Judge Donald G. Wilkerson on 9/20/16. (sgp)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ROBERT HERTZ, JOHN LAKIN, GARY
LIETENANT HILL, MIRAN THOMPSON,
SERGEANT DOVER, JODIE COLLMAN,
RICHERT, MIKE TASSOME, MIKE HARE,
OFFICER MARK SPURGEON, BLAKE
SELLERS, MARK RYAN, MATT MILLER,
MAJOR, ALICIA RUSHING, and VALERIE
Case No. 3:15-cv-600-JPG-DGW
Now pending before the Court are the Motion for Relief from the April 19, 2016 Order
filed by Defendants on April 20, 2016 (Doc. 79) and the Motion to Suppress filed by Plaintiff on
May 16, 2016 (Doc. 85). The Motion for Relief is GRANTED IN PART and the Motion to
Suppress is DENIED.
Motion for Relief
On October 28, 2015, Plaintiff served requests to produce and interrogatories upon
Defendants. Defendants did not respond in a timely manner. After Plaintiff inquired about
responses on several occasions, and after no responses were forthcoming, Plaintiff filed a Motion
to Compel on February 29, 2016 (Doc. 73). Defendants did not respond to the motion within the
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time provided by Local Rule 7.1. On April 19, 2016, this Court granted the motion to compel and
directed Defendants to respond to the discovery requests within 2 weeks, without objection (Doc.
78). The next day, Defendants filed a Motion, pursuant to Federal Rule of Civil Procedure
60(b)(1), stating that “Defendants should be relieved from the April 19, 2016 Order as the
discovery was timely responded to; however, through the inadvertent act of the undersigned
counsel, a written response to Plaintiff’s Motion to Compel was not filed with the Court.”
Federal Rules of Civil Procedure 33(b)(2) and 34(b)(2) provide that a party has 30 days
from service to respond to written discovery requests. Therefore, and contrary to Defendants’
claim that the March 10, 2016 responses were timely, their discovery responses were due on
November 30, 2015. By failing to respond to interrogatories in a timely manner, Defendants
waived their objections; and, such a waiver can only be excused for “good cause.” Fed.R.Civ.P.
33(b)(4). Federal Rule of Civil Procedure 37(a) further provides that if a party fails to timely
respond to written discovery requests, Plaintiff may file a motion seeking such responses so long
as he can certify that he attempted to confer in order to acquire responses. Plaintiff also had the
option of seeking sanctions. Plaintiff elected to just seek an order compelling responses.
Rule 37 anticipates that a party may respond to the discovery requests after a motion to
compel has been filed. Thus, Rule 37(a)(5) provides that the Court must impose sanctions, in the
form of reasonable expenses incurred (with certain exceptions), if tardy responses are made. In
this matter, Plaintiff is proceeding pro se and has no attorney expenses; the only expenses that
Plaintiff may have are related to the cost of stationary and postage, which is negligible.
The result is that Defendants should have responded to Plaintiff’s interrogatories without
objection and that they should have responded to Plaintiff’s requests to produce. A brief perusal
of Plaintiff’s interrogatories reveals, however, the much of his questions are open-ended,
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argumentative, and vague. For example, he seeks the names of all policy makers at the Madison
County Jail from March 2014 to the present (Doc. 79-1, p. 2). Such a request does not specify the
type of policies that are relevant to this lawsuit. Plaintiff does provide more specific requests
thereafter and indicates that he is seeking the person or persons who promulgate policy regarding
medical care at the jail. These subsequent requests, however, are argumentative (i.e. “list any . . .
individual . . . who . . . has promulgated the policy . . . [that] directs or allows a non-medical
inadequately trained Jailer to make a unprofessional judgments to assess such important and
critical evaluations in emergency situations . . . .”). Defendants object but nonetheless respond
that the jail rules and procedures are based on the “Illinois County Jail Standards.” This response
does not give the Plaintiff what he is essentially asking for: the name of the person who makes or
promulgates or enforces jail policies with respect to medical care.
The Court further notes that some of the interrogatories seek information that already can
be gleaned from initial disclosures. For example, interrogatory 9 seeks the names of all persons
who will testify at trial. Defendants respond that they do not yet know who will testify; however,
Defendants already should have provided a list of persons with knowledge, as required by the
Scheduling Order (Doc. 62). Plaintiff also requests other information, the relevance of which is
In light of the uncertainty of what discovery has been produced to Plaintiff, the Motion is
GRANTED IN PART to the extent that Defendants have now responded to the discovery
requests. However, the responses are replete with objections and Defendants have not provided
any argument as to what good cause exists to permit the objections to stand (although, as noted
above, some discovery requests are objectionable). In order to move these proceedings along,
then, this matter is SET for a hearing on October 4, 2016 at 2:00 p.m. on Defendants’ objections
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to discovery requests.
Defendants shall appear by counsel and Plaintiff shall appear by
video-conference. The parties should be prepared to discuss what discovery is outstanding,
Defendants’ responses to Plaintiff’s interrogatories and requests to produce, and any other
discovery related matter.
The Motion to Suppress is DENIED. Plaintiff’s deposition was taken on February 9,
2016. Plaintiff claims that: 1) he was not given reasonable notice of the deposition; 2) Defendants
did not have leave to conduct his deposition; 3) he was under the influence of psychotropic
medication at the time that causes confusion and the inability to think clearly; 4) he was not able to
fully answer questions; 5) he was not able to “cross-examine”; 6) he was not permitted to object;
and, 7) he was subjected to rude behavior. Objections 2 through 7 are wholly without merit and
require no further comment. As to Plaintiff’s claims that he was not given reasonable notice, the
Court finds that the notice was mailed on February 4, 2016 and that Plaintiff received it on
February 8, 2016, a day before the deposition on February 9, 2016. Federal Rule of Civil
Procedure 30 requires “reasonable written notice.” There is no hard-and-fast rule that provides
the parameters of reasonable notice. At the very least, however, the reasonableness of any notice
is contingent upon the specific facts of a case. See generally In re Sulfuric Acid Antitrust
Litigation, 231 F.R.D. 320, 327-328 (N.D.Ill. 2005); United States v. Phillip Morris, Inc., 312
F.Supp.2d 27, 36-37 (D.D.C. 2004); C & F Packing Company v. Doskocil Companies, Inc., 126
F.R.D. 662, 678 (N.D.Ill. 1989).
While not ideal, the short notice provided to Plaintiff is reasonable.
incarcerated, has identified no other time commitments that would have prevented the deposition,
and has not otherwise incurred any costs related to the deposition. There is no evidence that he
was prejudiced in any way with respect to the date and time of the deposition. The Court also
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notes that, notwithstanding the list of objections that Plaintiff now has, he did not file a motion
pursuant to Rule 30(d)(3)(A) to terminate or limit the deposition. It is apparent that Plaintiff is
more than capable of filing motions and seeking relief from the Court. If the deposition was as
onerous as Plaintiff now claims, the Court would have expected Plaintiff to file a more timely
DATED: September 20, 2016
DONALD G. WILKERSON
United States Magistrate Judge
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