Salama v. Aisin Manufacturing Illinois, LLC
ORDER. For the reasons stated in the attached Memorandum and Order, Plaintiff's Motion to Compel (Doc. 127 ) is DENIED. By separate order, the Court will set a hearing pursuant to Fed. R. Civ. P. 37(a)(5)(B). The parties are DIRECT ED to MEET and CONFER concerning all outstanding discovery issues. The parties are DIRECTED to file a joint status report certifying that they have completed this required meet and confer by October 25, 2021. Plaintiff's oral motion for additional depositions is DENIED, without prejudice. Defendant is DIRECTED to file an amended answer on or before October 25, 2021. Signed by Judge David W. Dugan on 10/5/2021. (arm)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
MAHMOUD A. SALAMA,
Case No. 19-cv-1111-DWD
MEMORANDUM AND ORDER
DUGAN, District Judge:
In this matter, Plaintiff, Mahmoud A. Salama, asserts discrimination and
retaliation claims against his former employer, Defendant Aisin Manufacturing, Inc., on
the basis of his race/color, national origin, and religion (Doc. 55). This case is now before
the Court on yet another discovery dispute between the parties (See Doc. 90; Doc. 114).
Following a status conference on August 12, 2021, the Co
ing discovery issues and to submit an
updated joint discovery report to the Court (Doc. 121). The parties could not agree on all
their disagreements or agreements so did not agree to the submission of a joint report
(See Doc. 130; Doc. 133). Instead, Plaintiff filed a discovery report on September 9, 2021
(Doc. 130). Defendant filed its discovery report on September 15, 2021 (Doc. 133-4).
on for Leave (Doc. 127). Defendant filed a
response to the Motion (Doc. 134), to which Plaintiff replied (Doc. 135). The Court held
a discovery hearing on September 29, 2021 (Doc. 140). Prior to the hearing, the Court
directed the parties to submit affidavits of their attorney
parties did (Docs. 137, 138). Having reviewed
arguments, these discovery issues are ripe for rulings as detailed below.
Motion to Compel
By his Motion dated September 9, 2021, Plaintiff seeks to compel the disclosure of
an e-mail chain that Defendant produced, and marked confidential, in a separate
litigation matter, Marroy v. Aisin MFG. Illinois, LLC, S.D. Ill. Case No. 20-972-DWD.
Stamped Aisin-Marroy pp. 1078es a few background issues from Marroy that are
relevant to this matter.
First, in Marroy, Plaintiff also asserted discrimination and
retaliation claims against Defendant Aisin. See Marroy, at Doc. 25. 1 The parties reached
a settlement in this matter, and judgment was entered on August 25, 2021. See Marroy, at
Docs. 98, 100.
Second, the parties in Marroy and this matter share similarities in representation.
Specifically, in Marroy, Plaintiff Marroy was represented by Attorney Brian J. Graber of
Brian J Graber LLC. See Marroy, at Doc. 11. Defendant Aisin was represented by
Attorneys Rebecca Murphy Christensen, Kimberly A. Yates, and Patricia J. Martin of
See Marroy, at Docs. 4, 5, 81. Likewise, in this matter,
Plaintiff Salama is represented by Attorney Brian J. Graber (Doc. 67), in addition to
Court documents, including electronic docket information, are public records of which the Court can take
judicial notice. See Opoka v. I.N.S., 94 F.3d 392, 394 (7th Cir. 1996); Henson v. CSC Credit Servs., 29 F.3d 280,
284 (7th Cir. 1994).
Attorneys Ronald E. Osman of Ronald E. Osman & Associates, Ltd. (Doc. 24), and Robin
Potter of Fish Potter Bolanos, P.C. (Doc. 29). Defendant Aisin is again represented by
Attorneys Rebecca Murphy Christensen, Kimberly A. Yates, and Patricia J. Martin of
. Just as in this matter, the parties in
Marroy had several discovery disputes. See Marroy, at Docs. 76, 96.
Finally, in Marroy, a confidentiality order was entered on March 22, 2021, which
addressed and governed certain discovery issues present in Marroy. See Marroy, at Doc.
56. Two provisions of the confidentiality order are relevant to this matter. Specifically,
Paragraph 5 prohibits the use or disclosure of confidential material by the parties, counsel
for the parties, or other authorized third-party disclosees. Id. Further, Paragraph 14
ployees (Doc. 127, pp. 1-2) 2. Plaintiff argues that this e-mail
chain is relevant and discoverable in this matter, but that Defendant refuses to produce
it (Doc. 127). Specifically, Plaintiff asserts that this e-mail chain is responsive to at least
three requests for production, which state:
quest for Production
2021, and the Court has reviewed the same.
Written communications (including email and other ESI)
among and/or between any Aisin employee, including management
regarding discrimination based on race, religion, and/or national origin
from January 2015 to the present.
All minutes and recordings and notes [sic] any meetings or
discussions of defendant relating to (a) Plaintiff; or (b) discrimination based
on race, religion, gender and/or national origin during the period January
2015 to present.
quest for Production
Email, text messages and/or social media communications
and/or posts mentioning or referencing race, Muslims, blacks, African
Americans or minorities sent or received by any individual listed in
26 Disclosures (see Request No. 1),
26(a)(1) Disclosures, from the start of
to the present.
(See Docs. 127-2, 135-1).
Defendant argues that this e-mail chain is not responsive to any written discovery
in this matter (Doc. 134). Further, Defendant
to use confidential documents from Marroy in this matter violate the Confidentiality
Order entered in Marroy. See Marroy, at Doc. 56. Specifically, Defendant asserts that
nversations which have occurred between the
documents to Plaintiff and his legal team, despite Plaintiff an
being parties, representatives, or authorized disclosees of the documents. Defendant
further argues that Attorney Graber has improperly retained confidential documents,
including this e-mail chain, despite clear destruction provisions in the Marroy
Confidentially Order. As such, Defendant in
and sanction Attorney Graber under Federal Rule of Civil Procedure 37(b).
With his Reply, Plaintiff attached declarations from Attorney Graber, Attorney
Potter, and Attorney Bolin, whom is not an attorney of record for Plaintiff in this matter,
Graber stated that he never shared any
confidential documents from Marroy with his co-counsels in this litigation, nor has he
revealed the contents of the e-mail chain to his co-counsels (Doc. 135-2). Attorney Potter
stated that Mr. Graber had never disclosed the contents of the Marroy documents he was
seeking from Defendant and had no part in the drafting or filing of the instant Motion to
Compel (Doc. 135-3). Similarly, Attorney Bolin stated that she has never seen the
documents at issue in this dispute and that Mr. Graber did not disclose the documents or
names of any person identified in the documents (Doc. 135-4).
Civ. P. 26(b)(1). If a party fails to produce
documents as may be required, the party seeking discovery may move for an order
compelling the production. See Fed. R. Civ. P. 37(a)(3)(B)(iv). Rule 37 further requires
the Court to consider the issue of sanctions in the resolving motions to compel. See Fed.
R. Civ. P. 37(a)(5); Rickels v. City of South Bend, Ind., 33 F.3d 785, 786 (7th Cir. 1994) (Rule
fee-shifting rule. The winner is entitled to
fees unless the opponent establishes that his
Specifically, if a motion to compel is gr
opportunity to be heard, require the party . . . whose conduct necessitated the motion, the
party or attorney advising that conduct, or
circumstances make an award unjust. Fed. R. Civ. P. 37(a)(5)(A). Similarly, if a motion
the attorney filing the motion, or both to pay the party . . . who opposed the motion its
reasonable expenses incurred in opposing th
The Court has reviewed the subject e-mail chain, and at best, it is marginally
whether the statement was discriminatory or stereotypical. However, the Court finds
that it is highly unlikely that most people reviewing this statement would conclude that
it was discriminatory so that the e-mail would reasonably be capt
discovery requests. Accordingly, the Court FINDS that the subject e-mail chain is not
responsive to Requests to Produce Nos. 9, 12, or 14. To th
not appear well taken, and even if the e-mail statement is otherwise discoverable in this
matter, Defendant was substantially justified in withholding the e-mail from production
as most readers would not understand the statement and specific term used therein as a
current discovery requests. Plainti
127) is therefore DENIED.
Given that the Motion (Doc. 127) is denied, the next question is
fees are appropriate. As noted
an opportunity to be heard, require the movant, the attorney filing the motion, or both to
pay the party . . . who opposed the motion its reasonable expenses incurred in opposing
other circumstances make an award of expenses
separate order, the matter will be set for hearing so as to give Plaintiff and his counsel the
opportunity to be heard.
The Court further FINDS
Counsel violated the confidentiality order in Marroy.
Indeed, Attorney Graber
represented that he has not shared or disclosed this e-mail chain to his co-counsels in this
litigation. Further, the deadline to return or destroy the confidential documents subject
to the confidentiality order has not yet passed. The confidentiality order required the
return or destruction of confidential documents within sixty-five days after dismissal or
entry of final judgment, which occurred on August 25, 2021. See Marroy, at Docs. 56, ¶
14(b), 98, 100. Therefore, the deadline to return or destroy confidential documents
pursuant to Paragraph 14 of the confidentiality order should occur by October 29, 2021.
very Reports (Doc. 130, Doc. 133-4), the
parties invited the Court to issue rulings concerning approximately 13 outstanding
However, at the discovery conference, counsels for the parties
represented that a majority of the items were now resolved, or that supplemental
s counsel represented that Defendant has
counsel disagrees but is unable to specifically articulate what documents or items Plaintiff
is still requesting from Defendant that have allegedly not been produced.
The Court observes that a portion of this ongoing discovery dispute concerns an
explained that its labeling error was causing confusion for the parties, so Defendant
underwent the process of re-labeling all of its discovery documents to include both an
represented that if any of its discovery responses or supplements were untimely, it was
because Defendant chose to wait to produce those documents until after the re-labeling
process was completed so that the discovery responses would also be updated with the
correct and amended document numbers.
Counsels for the parties also confirmed that Defendant had produced
s latest production was completed on September 28, 2021.
viewed the disclosures for completeness.
produce to Plaintiff.
This additional supplement was to have been produced on
September 29, 2021. Considering these repres
representation that Defendant has not only produced, but now re-produced, all required
discovery materials to Plaintiff, at this time, the Court cannot reasonably determine what
additional production or discovery Plaintiff may still be seeking from Defendant.
references EEOC documents, a training manual, and the
recent discovery supplements received on September
counsel also represents that Plaintiff needs additional time to review the new production
update any discovery responses, as needed, to specifically reference the documents that
are responsive to each request by their amended bates labels as a way of certification that
nothing is being withheld from production.
Considering the foregoing, the Court will not issue specific rulings on each of the
DIRECTED to MEET and CONFER concerning all outstanding discovery issues, and
specifically as to what documents have been produced. The parties are DIRECTED to
file a joint status report certifying that they have completed this required meet and confer
to the Court. The joint status report shall be filed on or before October 25, 2021.
While the parties have already conducted multiple discovery conferences, the
Court observes that in general, the attorneys appear to walk away from each meeting
with grossly different opinions on the issues covered. These grave misunderstandings
and confusion have ultimately required much Court attention and involvement on these
relatively minor discovery issues. Counsels are therefore reminded that it thwarts the
meet and confer process to leave their discovery meetings with a misunderstanding of
what has occurred there.
The Court highly encourages the parties to use written
communications (and additional discovery requests, as necessary) throughout their meet
and confer process, so to develop adequate documentation to support a Rule 37(a)(1)
certification, and so the Court can readily determine what documents (including the
corresponding bates number) have or have not been produced.
The parties are further reminded that should the parties continue to have
discovery disputes of this magnitude without progress or resolution, the Court will
consider the appropriateness of appointing an independent overseer for discovery at the
expense of the parties.
Oral Motion for Additional Depositions
opposes the request under Fed. R. Civ. P. 30(a)(2)(A)(i), which requires a party to seek
leave of Court to conduct a deposition that would result in more than 10 depositions
DENIED, without prejudice. After ten depositions
tional depositions. Plaintiff is reminded
that he should provide significant detail as to why any additional depositions are needed.
Although not raised by the parties, the Court observes Defendant has not filed an
amended answer and affirmative defenses.
er and Affirmative Defenses (Doc. 114, at
The Court further granted Defendant leave to file an amended answer and
affirmative defenses on or before July 21, 2021 (Id.). As of the date of this Order,
Defendant has not filed an amended answer and affirmative defenses.
represents that it elected to stand on its Answer and Affirmative Defenses, without
amending any of the stricken portions, and without any substantive changes to its prior
answer. For the benefit of the record in this matter, the Court DIRECTS Defendant to
file an Amended Answer to clarify this representation. Defendant shall file its Amended
Answer on or before October 25, 2021.
The Court admonishes the parties to work professionally and cooperatively. The
Court has dedicated significant time and resources in reviewing voluminous motions and
responses on discovery matters which the Court considers relatively simple. The parties
would do well to review the Federal Rules of Civil Procedure 26 and 37. Further, the
Court would be remiss not to consider the impact these discovery delays are having in
best interest, the potential harm caused by
discovery disputes is striking and runs counter to the spirit of Rules 26 and 37. Litigation
need not be a blood sport and fervent advocacy should not employ the discovery process
as a pugil. The Federal Rules of Civil Procedure are specific and encompassing and, if
studied and applied, more often than not supply the solution to discovery related
Finally, the Court is troubled by the enormous attorney fees being incurred in this
matter by Plaintiff, especially considering the current procedural posture of this case. At
ff submitted an affidavit of
ts the fees incurred from August 12, 2021 to September 20,
2021, but excludes any time spent by Attorneys Ronald E. Osman or Brian Graber during
ttorneys have still accumulated $83,000.00 in fees
representing 150.04 hours.
The Seventh Circuit has instructed that district courts have broad discretion to the
fees while the litigation is
excessive fees before
See Montanez v. Simon, 755 F.3d 547, 550-51 (7th Cir.
2014). In Montanez
overlitigated by both sides, [which] took on all the protracted complexity of high-stakes
commercial litigation, replete with hard-fought
parties, the Circuit emphasized that cases
involving a fee-shifting statute (and no private incentive to limit the scope of litigation),
Id. at 552.
In that vein, the Court must take this opportunity to remind the parties that it has
broad case-management authority to set reasonable limits on discovery and trial
preparation to help prevent similar overlawyering here. The Court therefore warns the
parties that it will not hesitate to set reasonable boundaries and limitations on discovery
as may become necessary to prevent the accrual of excessive fees. The parties should be
mindful of these constraints, and work to avoid any further gamesmanship of the
discovery process, and instead focus their efforts and resources on moving this case along
and preparing for trial
Dated: October 5, 2021
DAVID W. DUGAN
United States District Judge
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