DOH et al v. Lake Central School Corporation et al

Filing 108

OPINION AND ORDER denying 80 Motion for Sanctions filed by Haddad ; denying 88 Motion to Compel Production of Student Affidavits and Questionnaires. Signed by Magistrate Judge Andrew P Rodovich on 4/7/15. (mc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
D.O.H., a minor, by OSAMA HADDAD
and HIND HADDAD, individually, and as his
parents and natural guardians,
Plaintiffs,
v.
LAKE CENTRAL SCHOOL CORPORATION,
et al.,
Defendants.

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) Cause No. 2:11-cv-430
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OPINION AND ORDER
This matter is before the court on the Motion for Sanctions [DE 80] filed by the plaintiff,
David Osama Haddad, on January 26, 2015, and the Motion to Compel Production of Student
Affidavits and Questionnaires [DE 88] filed by Haddad on February 16, 2015. For the following
reasons, the Motion for Sanctions [DE 80] is DENIED, and the Motion to Compel Production of
Student Affidavits and Questionnaires [DE 88] is DENIED.
Background
The plaintiff, David Osama Haddad, initiated this lawsuit on November 16, 2011.
Haddad, a former Lake Central High School student, alleged that other students bullied and
harassed him, which led to physical and emotional damages. On August 8, 2014, the defendants
filed a Motion for Sanctions [DE 39], which alleged that Haddad had failed to produce his entire
Twitter profile. Within their Motion for Sanctions [DE 39], the defendants indicated that
Haddad had produced only five pages of his Twitter profile. In their reply brief, the defendants
produced fifty-six pages of Haddad’s Twitter profile [DE 77-6] to demonstrate that Haddad had
failed to produce his entire profile.

On February 20, 2015, this court granted in part and denied in part the defendants’
Motion for Sanctions [DE 39]. Specifically related to the present issue, the court found that
Haddad had failed to produce his entire Twitter profile and ordered him to produce that profile
with redactions for privilege and relevance and to pay the reasonable expenses associated with
that discovery dispute. Prior to the February 20, 2015 order, Haddad filed this present Motion
for Sanctions [DE 80] and argued that the defendants filed the fifty-six pages of his Twitter
profile without first disclosing the documents to him in violation of Federal Rule of Civil
Procedure 37(c).
The defendants’ Twitter production included an affidavit signed by the defendant, Robert
McDermott, that stated he acquired the fifty-six pages of Haddad’s Twitter profile on or about
November 15, 2011. Haddad claimed that the defendants had not disclosed the fifty-six pages
before filing their reply brief or mentioned it to his counsel. Upon seeing the fifty-six pages,
Haddad’s counsel contacted the defense counsel to request that the defendants withdraw their
Motion for Sanctions [DE 39] because the defendants had made accusations with unclean hands.
However, the defendants rejected that request and a second attempt before Haddad filed his
Motion for Sanctions [DE 80].
Haddad also has claimed that the defendants withheld seventy-three pages of relevant
documents for more than three years. The documents included eighteen pages of notes created
by the defendant, Dr. Lawrence Veracco, thirty-one pages of notes created by Lake Central High
School Assistant Principal Martin Freeman, and statements obtained from Lake Central High
School students after the November 8, 2011 assault.
After Haddad filed his complaint in state court, the defendants indicated that they
conducted an investigation to prepare a defense. As part of that investigation, Lake Central

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administrators obtained written statements from students and took notes during student
interviews. McDermott, Principal of Lake Central High School, prepared a memorandum about
the interviews, compiled documents, and placed documents into a master file. However, defense
counsel admitted that some administrators maintained documents outside of the master file and
that counsel was unaware of that practice until November 2014. As part of the investigation,
McDermott viewed and printed Haddad’s publicly available Twitter profile but maintained it in a
personal file rather than the master file. On June 30, 2012, McDermott resigned from the Lake
Central School Corporation and did not leave his personal file regarding the investigation.
Defense counsel claimed that they were unaware that McDermott had Haddad’s Twitter profile
until Haddad issued individual discovery to him two years later.
On August 1, 2012, the defendants produced the discoverable portion of the master file
along with a privilege log to Haddad. Initially, the defendants identified the referenced students
by initials because they were minors, but they disclosed the students’ names on January 17,
2013. Additionally, on November 6, 2014, they identified each person present during the
interviews and the date that each statement was obtained.
On October 22, 2014, Haddad sent a second set of interrogatories and requests for
production to Lake Central School Corporation and his first set of interrogatories to Veracco,
McDermott, defendant, Sean Begley, and defendant, George Baranowski. The defendants stated
that was the first time that Haddad had requested discovery from the individual defendants.
Defense counsel claimed that he learned for the first time that information was missing from the
master file when he contacted the individual defendants to prepare their discovery responses.
Specifically, he learned that McDermott had a copy of Haddad’s Twitter profile on November
18, 2014. On December 17, 2014, the defendants responded to the discovery requests and

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produced Haddad’s Twitter profile, the notes of Veracco and Freeman, Freeman’s handwritten
notes on his desk calendar, and a privilege log. Twenty days later the defendants filed their reply
brief, which included Haddad’s Twitter profile.
Although the defendants disclosed the names of students that produced written affidavits
and answered questionnaires, Haddad claimed that the defendants have withheld the actual
statements on the basis of the work product doctrine and the Family Educational Rights and
Privacy Act. Haddad has requested that the defendants produce the affidavits and questionnaires
multiple times, but the defendants have rejected each request. Haddad then attempted to contact
the witnesses but could only reach four of the students. Three of the witnesses did not remember
the content of their statements, two additional witnesses have moved out of state without
forwarding information, and another has left the country until Christmas of 2015.
Haddad did not file a Local Rule 37.1 certification along with his Motion for Sanctions
[DE 80]. However, Haddad indicated that the parties exchanged letters on January 7, 2015 and
January 8, 2015 regarding that dispute. The defendants indicated that Haddad’s counsel called
defense counsel on January 29, 2014 after he had filed his Motion for Sanctions. Haddad did file
a Local Rule 37.1 certification with his Motion to Compel indicating that he had attempted to
resolve that discovery dispute with the defendants.
Discussion
“A party filing any discovery motion must file a separate certification that the party has
conferred in good faith or attempted to confer with other affected parties in an effort to resolve
the matter raised in the motion without court action.” N.D. Ind. L.R. 37-1(a). The certification
must include the date, time, and place of any conference or attempted conference and the names

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of any participating parties. N.D. Ind. L.R. 37-1(a)(1) and (2). The court may deny any motion
that failed to include the required certification. N.D. Ind. L.R. 37-1(b).
The defendants have indicated that Haddad failed to file a certification pursuant to Local
Rule 37-1 and have argued that the court should deny the motion outright. Additionally, they
have claimed that Haddad did not attempt to resolve the dispute in good faith because he sent
one letter and made one phone call after filing his Motion for Sanctions. However, Haddad has
argued that the court has discretion to overlook the failure to file a certification when the party
substantially complied with the necessary substance of the certificate. Mayes v. City of
Hammond, Ind., 2006 WL 2037379, at *5 n.3 (N.D. Ind. July 18, 2006); see Lucas v. GC Servs.
L.P., 226 F.R.D. 328, 335 (N.D. Ind. 2004) (finding the plaintiffs’ lack of compliance not fatal
when the motion reflected an effort to confer with the defendants).
Although Haddad did not file a certification pursuant to Local Rule 37-1, the parties did
exchange letters in an attempt to resolve the dispute. Furthermore, the briefs demonstrate that
the parties will not reach a mutual agreement on the Motion for Sanctions [DE 80]. Therefore,
the court will address the underlying issues rather than denying Haddad’s motion pursuant to
Local Rule 37-1 and simply delaying a resolution of this dispute. See Felling v. Knight, 2001
WL 1782361, at *1 (S.D. Ind. Dec. 21, 2001) (“[T]he briefs leave little doubt the parties will not
reach mutual agreement on the issues raised. Therefore, the court will address the underlying
issues rather than deny Knight’s motion solely on the basis of a procedural shortcoming. To
hold otherwise would do little other than delay resolution of these issues . . . .”).
First, Haddad has argued that the defendants failed to disclose information in violation of
Rule 26(a) and (e) and has requested sanctions for those violations. Without awaiting a
discovery request, a party must provide to the other parties

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a copy—or a description by category and location—of all
documents, electronically stored information, and tangible things
that the disclosing party has in its possession, custody, or control
and may use to support its claims or defenses, unless the use would
be solely for impeachment . . . .
Federal Rule of Civil Procedure 26(a)(1)(A)(ii). “A party must make the initial disclosures at
or within 14 days after the parties’ Rule 26(f) conference unless a different time is set by
stipulation or court order, or unless a party objects during the conference that initial disclosures
are not appropriate . . . .” Federal Rule of Civil Procedure 26(a)(1)(C). “A party must make
its initial disclosures based on the information then reasonably available to it . . .[and] is not
excused from making its disclosures because it has not fully investigated the case . . . .” Federal
Rule of Civil Procedure 26(a)(1)(E). Additionally, a party has a duty to supplement or correct
a Rule 26(a) disclosure.
A party who has made a disclosure under Rule 26(a)—or who has
responded to an interrogatory, request for production, or request
for admission—must supplement or correct its disclosure or
response:
(A) in a timely manner if the party learns that in some material
respect the disclosure or response is incomplete or incorrect, and if
the additional or corrective information has not otherwise been
made known to the other parties during the discovery process or in
writing; or
(B) as ordered by the court.
Federal Rule of Civil Procedure 26(e)(1)(A) and (B).
“If a party fails to provide information . . . as required by Rule 26(a) or (e), the party is
not allowed to use that information . . . to supply evidence on a motion, at a hearing, or at a trial,
unless the failure was substantially justified or is harmless.” Federal Rule of Civil Procedure
37(c)(1). Rule 37(c)(1) requires the exclusion of non-disclosed evidence unless non-disclosure
was justified or harmless. Musser v. Gentiva Health Servs., 356 F.3d 751, 758 (7th Cir. 2004).
The district court has broad discretion to determine whether a Rule 26(a) violation was justified
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or harmless. Mid-America Tablewares, Inc. v. Mogi Trading Co., Ltd., 100 F.3d 1353, 1363
(7th Cir. 1996). Courts should use the following factors when making this determination: “(1)
the prejudice or surprise to the party against whom the evidence is offered; (2) the ability of the
party to cure the prejudice; (3) the likelihood of disruption to the trial; and (4) the bad faith or
willfulness involved in not disclosing the evidence at an earlier date.” David v. Caterpillar, Inc.,
324 F.3d 851, 857 (7th Cir. 2003); see Tribble v. Evangelides, 670 F.3d 753, 760 (7th Cir. 2012)
(citing David).
However, in addition to or instead of excluding the non-disclosed evidence, the court
may order the violating party to pay the reasonable expenses, including attorney’s fees, caused
by the failure, inform the jury of the party’s failure, and impose appropriate sanctions, including
any listed in Rule 37(b)(2)(A). Federal Rule of Civil Procedure 37(c)(1)(A)–(C). Federal
Rule of Civil Procedure 37(b)(2) gives the court authority to sanction a party for failing to
comply with a court order and states in relevant part:
(2) Sanctions in the District Where the Action Is Pending.
(A) For Not Obeying a Discovery Order. If a party or a party’s
officer, director, or managing agent--or a witness designated under
Rule 30(b)(6) or 31(a)(4)--fails to obey an order to provide or
permit discovery, including an order under Rule 26(f), 35, or 37(a),
the court where the action is pending may issue further just orders.
They may include the following:
(i) directing that the matters embraced in the order or other
designated facts be taken as established for purposes of the action,
as the prevailing party claims;
(ii) prohibiting the disobedient party from supporting or opposing
designated claims or defenses, or from introducing designated
matters in evidence;
(iii) striking pleadings in whole or in part;
(iv) staying further proceedings until the order is obeyed;
(v) dismissing the action or proceeding in whole or in part;
(vi) rendering a default judgment against the disobedient party; or
(vii) treating as contempt of court the failure to obey any order
except an order to submit to a physical or mental examination.

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The authority to sanction a non-compliant party also arises from the court’s inherent power to
manage its cases and achieve orderly disposition. See Chambers v. NASCO, Inc., 501 U.S. 32,
44, 47, 111 S. Ct. 2123, 2132, 2134, 115 L. Ed. 2d 27 (1991) (explaining that the court has broad
inherent powers to sanction a party); Barnhill v. United States, 11 F.2d 1360, 1367 (7th Cir.
1993).
The court should consider several factors when determining which sanctions to employ,
including: “the frequency and magnitude of the [party’s] failure to comply with court deadlines,
the effect of these failures on the court’s time and schedules, the prejudice to other litigants, and
the possible merits of the plaintiff’s suit.” Rice v. City of Chicago, 333 F.3d 780, 784 (7th Cir.
2003) (citing Williams v. Chi. Bd. of Educ., 155 F.3d 853, 857 (7th Cir. 1998)). The court
commits a legal error if it dismisses a suit after the first problem without exploring alternatives or
explaining why alternative sanctions would not be worthwhile. Sroga v. Huberman, 722 F.3d
980, 982 (7th Cir. 2013). The sanctions must be proportional to the party’s misconduct. Collins
v. Illinois, 554 F.3d 693, 696–98 (7th Cir. 2009). The court measures this by weighing the
proposed sanctions against the egregiousness of the party’s conduct. Barnhill, 11 F.3d 1368.
Haddad has requested sanctions pursuant to Rule 37(c)(1) because the defendants
violated Rule 26(a) and (e). First, he argued that the defendants violated Rule 26(a) and (e) by
failing to produce fifty-six pages of his own Twitter profile. Haddad claimed that the defendants
did not produce the Twitter profile until they included it in their reply brief to their Motion for
Sanctions [DE 39]. Additionally, he stated that McDermott had possessed the Twitter profile
since November 2011 and that the defendants were required to disclose the profile pursuant to
Rule 26(a) and in response to Haddad’s First Set of Requests for Production.

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First, the defendants have argued that they were not required to disclose Haddad’s
Twitter profile under Rule 26(a) because they did not intend to use it. See Federal Rule of Civil
Procedure 26 advisory committee’s notes (2000) (“A party is no longer obligated to disclose
witnesses or documents, whether favorable or unfavorable, that it does not intend to use.”). The
defendants admitted that McDermott acquired the Twitter profile in November 2011 but claimed
they did not initially intend to use it because defense counsel did not learn of its existence until
November 18, 2014. The court cannot find that the defendants intended to use the Twitter
profile at the time of their initial Rule 26(a) disclosure when defense counsel did not learn of the
documents’ existence until after Haddad sent his first set of interrogatories to the individual
defendants on October 22, 2014. To further support that defense counsel did not know of the
documents’ existence, McDermott did not place the Twitter profile in the master file containing
the School Corporation’s investigation documents but maintained it in a personal file that he took
with him following his resignation effective June 30, 2012. Although McDermott is a named
defendant in this matter, the court cannot find that the defendants intended to use the Twitter
profile because defense counsel did not know it existed. Therefore, the court does not find that
the defendants violated Rule 26(a) by failing to disclose the Twitter profile within their initial
disclosure.
Moreover, the defendants did not violate Rule 26(e) because they supplemented their
initial disclosure by producing the Twitter profile once they intended to use it. See Federal Rule
of Civil Procedure 26 advisory committee’s notes (2000) (“As case preparation continues, a
party must supplement its disclosures when it determines that it may use a witness or document
that it did not previously intend to use.”). As stated above, defense counsel learned about the
Twitter profile on November 18, 2014. Although Haddad has claimed that the defendants first

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disclosed his Twitter profile within their reply brief, the defendants indicated that they produced
the profile on December 17, 2014, twenty days before filing their reply brief. Furthermore, the
parties agreed on November 24, 2014 that the defendants could respond to the discovery requests
on December 17, 2014. Because the defendants supplemented their initial disclosure with the
Twitter profile within one month of defense counsel learning of the documents’ existence, the
court finds that the defendants timely supplemented their initial disclosure pursuant to Rule
26(e).
Even if the court had found that the defendants violated Rule 26(a) or (e) by failing to
disclose the Twitter profile, sanctions would be inappropriate because any violation would have
been harmless. Haddad could not be surprised by the Twitter profile because he created,
possessed, and controlled it. Any prejudice is low because the defendants produced the profile
before the discovery deadline, before Haddad noticed any depositions, before Haddad filed any
dispositive motions, and before Haddad filed this present Motion for Sanctions. There is no
disruption to the trial because no trial date has been set. Furthermore, the court does not find any
bad faith or willfulness on the part of the defendants because defense counsel was not aware of
the Twitter profile until November 18, 2014 and then produced it within one month.
Next, Haddad has argued that the defendants violated Rule 26(a) and (e) by failing to
disclose seventy-three pages of documents that included: (1) Assistant Principal Martin
Freeman’s desk calendar; (2) Veracco’s and Freeman’s notes from the student interviews; and
(3) ten student questionnaire forms. Additionally, Haddad has claimed that the defendants failed
to produce the documents in response to his first set of requests for production. Specifically, he
stated they are responsive to:
(i)

documents relating to [Haddad]’s November 8, 2011
assault at Lake Central High School, including documents
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(ii)

(iii)

(iv)

(v)

Lake Central School Corporation employees prepared
relating to the assault (No. 3);
documents relating to the individuals who were involved in
the assault, the details of the assault, and the injuries
sustained by [Haddad] and his assailant (No. 4);
documents describing any previous peer harassment or
bullying of [Haddad] at Lake Central High School or
elsewhere (No. 7);
documents reflecting any statements made to Defendants or
to anyone Defendants knew concerning the facts
surrounding the assault (No. 11); and
documents that memorialize, contain, or comment on
statements made concerning the facts surrounding the
assault (No. 12).

The first portion of the documents consisted of Freeman’s desk calendar, and the
defendants indicated it was not responsive to the discovery requests or required for disclosure
under Rule 26(a). The defendants stated that the desk calendar included Freeman’s daily notes
regarding meetings, discipline issues, telephone calls, students’ schedules, and daily tasks.
Additionally, the defendants produced Freeman’s desk calendar on December 17, 2014 after
Haddad requested all documents relating to him on October 22, 2014 because the desk calendar
included notes of calls and meetings with Haddad’s family. Furthermore, the parties agreed to
the December 17, 2014 date.
The court finds that Freeman’s desk calendar was not responsive to the above discovery
requests. Additionally, it is not clear that the defendants intended to use Freeman’s desk
calendar. Thus, they were not required to produce it with their initial disclosure pursuant to Rule
26(a). Once Haddad requested all documents relating to him, the defendants produced the
calendar on an agreed upon date. The court does not find that the defendants withheld
Freeman’s calendar in bad faith and does not sanction them for failing to produce the calendar as
part of their initial disclosure.

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The remaining portions of the documents consisted of Veracco’s and Freeman’s notes
from student interviews about the assault and ten student questionnaire forms. Both the
administrators’ notes and the questionnaires were responsive to Haddad’s discovery requests.
Furthermore, the documents should have been produced or disclosed pursuant to the Rule 26(a)
initial disclosure requirement.
The defendants withheld documents from the initial disclosure on the basis of privilege
because the documents were prepared in anticipation of litigation after Haddad commenced this
matter. However, they did disclose documents that were withheld on the basis of privilege
within a privilege log, but Veracco’s and Freeman’s notes from student interviews about the
assault and ten student questionnaire forms were not disclosed as part of that privilege log.
The defendants indicated that they disclosed everything from their master file as part of
their initial disclosure and that the above documents were not kept in the master file but were
retained in personal files by the administrators. Defense counsel stated that it discovered that the
above documents were not disclosed in November 2014 after Haddad issued discovery requests
to the individual defendants on October 22, 2014. The defendants then supplemented their
disclosure pursuant to Rule 26(e) on December 17, 2014 by producing a privilege log regarding
the administrators’ notes and the student questionnaires.
The court finds that the defendants timely supplemented their disclosure pursuant to Rule
26(e). They disclosed the missing documents on a date agreed to by the parties and the
following month after discovering the documents had not previously been disclosed.
Additionally, the defendants disclosed the documents before the fact discovery deadline, before
Haddad noticed any depositions, before Haddad filed any dispositive motions, and before a trial
date was set. Therefore, the court does not award Haddad sanctions pursuant to Rule 37(c)(1)

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because the defendants timely supplemented their disclosure pursuant to Rule 26(e). Although
the defendants did not present an excuse for their failure to discover that the above documents
were not disclosed, the court does not find that they purposely failed to disclose the documents
or that they acted in bad faith. Although the court understands Haddad’s frustration, the
defendants’ duty to supplement did not arise until they learned that the documents were not
disclosed previously. See Federal Rule of Civil Procedure 26(e)(1)(A) (“A party . . . must
supplement or correct its disclosure or response in a timely manner if the party learns that in
some material respect the disclosure or response is incomplete or incorrect . . . .”).
Moreover, Haddad cited cases granting sanctions when the party either failed to disclose
the documents at all or did so after discovery had closed and nearing the trial date. See Davis v.
Lakeside Motor Co., Inc., 2014 WL 3341033, at *1 (N.D. Ind. July 7, 2014) (noting that the
defendant filed trial exhibits that included documents that were not disclosed in discovery);
Ablan v. Bank of America Corp., 2014 WL 6704293, at *3 (N.D. Ill. Nov. 24, 2014) (finding
that the plaintiffs failed to timely disclose CD-ROMS pursuant to Rule 26(e) when they
produced the CD-ROMS after discovery had closed three months earlier). Because Rule 37(c)
requires the party to violate Rule 26(a) and (e) and the court found that the defendants timely
supplemented their disclosure with a privilege log identifying the administrators’ notes and the
student questionnaires, the court will not award sanctions under Rule 37(c). The Motion for
Sanctions [DE 80] is DENIED.
Next, Haddad has requested the court to compel the defendants to produce the affidavits
and questionnaires obtained from the School Corporation students. A party may “obtain
discovery regarding any matter, not privileged, that is relevant to the claim or defense of any
party, including the existence, description, nature, custody, condition and location of any books,

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documents, or other tangible things.” Federal Rule of Civil Procedure 26(b)(1). For discovery
purposes, relevancy is construed broadly to encompass “any matter that bears on, or that
reasonably could lead to other matter[s] that could bear on, any issue that is or may be in the
case.” Chavez v. DaimlerChrysler Corp., 206 F.R.D. 615, 619 (S.D. Ind. 2002) (quoting
Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351, 98 S. Ct. 2380, 2389, 57 L. Ed. 2d 253
(1978)). Even when information is not directly related to the claims or defenses identified in the
pleadings, the information still may be relevant to the broader subject matter at hand and meet
the rule’s good cause standard. Borom v. Town of Merrillville, 2009 WL 1617085, at *1 (N.D.
Ind. June 8, 2009) (citing Sanyo Laser Prods., Inc. v. Arista Records, Inc., 214 F.R.D. 496, 502
(S.D. Ind. 2003)); see Adams v. Target, 2001 WL 987853, at *1 (S.D. Ind. July 30, 2001) (“For
good cause, the court may order discovery of any matter relevant to the subject matter involved
in the action.”); Shapo v. Engle, 2001 WL 629303, at *2 (N.D. Ill. May 25, 2001) (“Discovery is
a search for the truth.”).
A party may seek an order to compel discovery when an opposing party fails to respond
to discovery requests or has provided evasive or incomplete responses. Rule 37(a)(2)–(3). The
burden “rests upon the objecting party to show why a particular discovery request is improper.”
Gregg v. Local 305 Ibew, 2009 WL 1325103, at *8 (N.D. Ind. May 13, 2009) (citing Kodish v.
Oakbrook Terrace Fire Prot. Dist., 235 F.R.D. 447, 449–50 (N.D. Ill. 2006)); McGrath v.
Everest Nat. Ins. Co., 2009 WL 1325405, at *3 (N.D. Ind. May 13, 2009) (internal citations
omitted); Carlson Rests. Worldwide, Inc. v. Hammond Prof’l Cleaning Servs., 2009 WL
692224, at *5 (N.D. Ind. March 12, 2009) (internal citations omitted). The objecting party must
show with specificity that the request is improper. Cunningham v. Smithkline Beecham, 255
F.R.D. 474, 478 (N.D. Ind. 2009) (citing Graham v. Casey’s Gen. Stores, 206 F.R.D. 253, 254

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(S.D. Ind. 2002)). That burden cannot be met by “a reflexive invocation of the same baseless,
often abused litany that the requested discovery is vague, ambiguous, overly broad, unduly
burdensome or that it is neither relevant nor reasonably calculated to lead to the discovery of
admissible evidence.” Cunningham, 255 F.R.D. at 478 (citing Burkybile v. Mitsubishi Motors
Corp., 2006 WL 2325506, at *6 (N.D. Ill. Aug. 2, 2006)) (internal quotations and citations
omitted). Rather, the court, under its broad discretion, considers “the totality of the
circumstances, weighing the value of material sought against the burden of providing it, and
taking into account society’s interest in furthering the truth-seeking function in the particular
case before the court.” Berning v. UAW Local 2209, 242 F.R.D. 510, 512 (N.D. Ind. 2007)
(examining Patterson v. Avery Dennison Corp., 281 F.3d 676, 681 (7th Cir. 2002)) (internal
quotations and citations omitted); see Hunt v. DaVita, Inc., 680 F.3d 775, 780 (7th Cir. 2012)
(explaining that the district court has broad discretion in supervising discovery).
Haddad has requested the court to compel the production of thirteen written statements
and ten questionnaires obtained from students following the assault. However, the defendants
have claimed that the statements and questionnaires were created in anticipation of litigation and
are protected by the work product doctrine. “The work product privilege is distinct from and
broader than, the attorney-client privilege.” Broadnax v. ABF Freight Sys., Inc., 1998 WL
474099, at *1 (N.D. Ill. Aug. 3, 1998). The work product doctrine is codified in Federal Rule of
Civil Procedure 26(b)(3) as follows:
Ordinarily, a party may not discover documents and tangible things
that are prepared in anticipation of litigation or for trial by or for
another party or its representative (including the other party’s
attorney, consultant, surety, indemnitor, insurer, or agent). But,
subject to Rule 26(b)(4), those materials may be discovered if: (i)
they are otherwise discoverable under Rule 26(b)(1); and (ii) the
party shows that it has substantial need for the materials to prepare
its case and cannot, without undue hardship, obtain their
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substantial equivalent by other means. . . . If the court orders
discovery of those materials, it must protect against disclosure of
the mental impressions, conclusions, opinions, or legal theories of
a party’s attorney or other representative concerning the litigation.
See Boyer v. Gildea, 257 F.R.D. 488, 490 (N.D. Ind. 2009) (applying the Rule). To meet the
qualified immunity from discovery based on Rule 26(b)(3), “a party claiming protection must
show that the materials sought are: (1) documents and tangible things; (2) prepared in
anticipation of litigation or for trial; and (3) by or for a party or by or for a party’s
representative.” Boyer, 257 F.R.D. at 490 (citing Wright, Miller & Marcus, 8 Federal Practice
& Procedure ' 2024 (3d ed.)). “The core of attorney work product consists of ‘the mental
impressions, conclusions, opinions, or legal theories of a party’s attorney or other representative
concerning the litigation.’” Menasha Corp. v. U.S. Dep’t of Justice, 707 F.3d 846, 847 (7th Cir.
2013).
The threshold determination is whether the documents sought to be protected were
prepared in anticipation of litigation or for trial. Caremark, Inc. v. Affiliated Computer Servs.,
Inc., 195 F.R.D. 610, 614 (N.D. Ill. 2000). The test for each document is “whether, in light of
the nature of the document and the factual situation in the particular case, the document can
fairly be said to have been prepared or obtained because of the prospect of litigation.”
Caremark, 195 F.R.D. at 614 (citing and quoting Binks Mfg. Co. v. Nat’l Presto Indus., Inc.,
709 F.2d 1109, 1118–19 (7th Cir. 1983). Precedent is clear that eventual litigation does not
ensure protection of all materials prepared by attorneys—the “remote prospect of future
litigation” does not suffice to bring the work product doctrine into play. Binks, 709 F.2d at
1120. Materials or investigative reports developed in the ordinary course of business do not
qualify as work product; only if the material or report came into existence because of the

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litigation or because of an existing articulable claim likely to lead to litigation can the doctrine
apply. Caremark, 195 F.R.D. at 614.
Once a party has established a qualified work product privilege, the opposing party may
overcome that privilege by showing a substantial need for the materials and an inability to obtain
a substantial equivalent to the materials without undue hardship. Rule 26(b)(3); Boyer, 257
F.R.D. at 491. However, even with that showing, “the lawyer’s mental processes are required to
be protected from disclosure.” Caremark, 195 F.R.D. at 614. Rule 26(b)(3) splits work product
into “opinion” work product, which reflects a lawyer’s mental processes, and “fact” or
“ordinary” work product. Mattenson v. Baxter Healthcare Corp., 438 F.3d 763, 768–69 (7th
Cir. 2006). “Both are generally protected and can be discovered only in limited circumstances.”
Caremark, 195 F.R.D. at 616 (citing In re Grand Jury Proceedings, 33 F.3d 342, 348 (4th Cir.
1994)). However, opinion work product is more scrupulously protected than fact work product
because it “represents the actual thoughts and impressions of the attorney.” Grand Jury
Proceedings, 33 F.3d at 348.
The defendants have demonstrated that the written statements and questionnaires are
documents and tangible things. Additionally, they have established that the documents were
prepared in anticipation of litigation or for trial. In support, the defendants stated that Lake
Central does not ordinarily obtain such documents during the course of student discipline and
that the documents were prepared after Haddad commenced this matter to prepare a defense.
Last, they demonstrated that administrators within the School Corporation, including some of the
named defendants, obtained the written statements from the students and that they created the
questionnaires that the students answered.

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Haddad has argued that the student affidavits are not work product because they are a
recitation of the facts by witnesses and not the mental impressions or legal theories of the
defendants or their attorneys. See Schipp v. General Motors Corp., 457 F. Supp. 2d 917, 924
(E.D. Ark. 2006) (“[A]ny verbatim non-party witness statements are neither privileged nor work
product and must be produced.”); Tuttle v. Tyco Elecs. Installation Servs., Inc., 2007 WL
4561530, at *2 (S.D. Ohio Dec. 21, 2007) (“Affidavits are not normally protected by the work
product doctrine for the very reason that an affidavit ‘purports to be a statement of facts within
the personal knowledge of the witness, and not an expression of the opinion of counsel.’”) (citing
Infosystems, Inc. v. Ceridian Corp., 197 F.R.D. 303, 306 (E.D. Mich. 2000)). Additionally, he
noted that the affidavits were not created by the defendants or their attorneys but were created by
the third-party witnesses. See Dobbs v. Lamonts Apparel, Inc., 155 F.R.D. 650, 653 (D. Alaska
1994) (“What counsel are entitled to protect is their work and their thoughts and their analysis of
the case, not the knowledge possessed by third parties.”) (emphasis in original); see also Murphy
v. Kmart Corp., 259 F.R.D. 421, 428–31 (D.S.D. 2009) (reviewing the majority view that thirdparty affidavits do not qualify under the work product doctrine). Similarly, Haddad has argued
that the student questionnaires were not work product because they were completed by third
parties and did not reflect defense counsel’s thought processes. See Young v. California, 2007
WL 2900539, at *1 (S.D. Cal. Oct. 1, 2007) (“Questionnaires completed by third persons are not
work product.”).
Although Haddad presented authority that non-party witness affidavits and completed
questionnaires are not work product, none of the authority is controlling or from the Seventh
Circuit. However, the defendants did not cite Seventh Circuit authority that directly considered
this issue. The defendants cited the concurrence in Hickman v. Taylor, the preeminent work

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product doctrine case, but the concurrence stated “[t]he question remains as to signed statements
or those written by witnesses.” Hickman v. Taylor, 329 U.S. 495, 519, 67 S. Ct. 385, 397, 1947
A.M.C. 1 (1947) (Jackson, J., concurring).
Although Haddad presented persuasive authority that non-party witness affidavits and
questionnaires do not qualify as work product, this court does not agree with those decisions.
Rather, this court finds that the students’ written statements and questionnaires qualify as fact or
ordinary work product. See Murphy, 259 F.R.D. at 431 (acknowledging that the non-party
affidavits may qualify as ordinary or fact work product). Moreover, this court finds that that
reasoning is consistent with Seventh Circuit precedent on the work product doctrine. See
Mattenson, 438 F.3d at 767–68 (“The work-product doctrine shields materials that are prepared
in anticipation of litigation from the opposing party, on the theory that the opponent shouldn’t be
allowed to take a free ride on the other party’s research, or get the inside dope on that party’s
strategy . . . .”); Hobley v. Burge, 433 F.3d 946, 949 (7th Cir. 2006) (stating that the work
product doctrine is intended “to establish a zone of privacy in which lawyers can analyze and
prepare their client’s case free from scrutiny or interference by an adversary”); Jackson v. City
of Chicago, 2006 WL 2224052, at *4 (N.D. Ill. July 31, 2006) (“The work product doctrine
reflects the strong public policy against invading the privacy of an attorney’s course of
preparation.”) (citation omitted); 1100 West, LLC v. Red Spot Paint & Varnish Co., Inc., 2007
WL 2904073, at *2 (S.D. Ind. May 18, 2007) (“If the Defendant wants to know what a potential
witness knows, or what his or her testimony would be if deposed or called at trial, defense
counsel . . . can conduct their own interview and obtain their own affidavit; they are not entitled
to ride upon the coattails of Plaintiff’s counsel.”).

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However, Haddad still may obtain the fact work product by showing a substantial need
and that he cannot obtain the substantial equivalent of the documents without undue hardship.
Haddad has shown that the documents are relevant because they contain first-hand observations
of the assault. Additionally, he has stated that the information is not available by other means.
Haddad indicated that he only was able to contact four of the thirteen students who signed
affidavits or completed the questionnaires, despite repeated attempts via phone, email, Facebook,
and personal visits. Furthermore, he has noted that three of the four witnesses he located did not
remember the content of their affidavits and that the documents are necessary to examine and
impeach the witnesses.
Haddad has argued that the lapse of time and the witness’ fading memories render the
evidence unavailable by other means even though the witnesses may be available for deposition.
Moreover, he noted that the expense and burden of deposing all of the witnesses places an undue
hardship on Haddad. However, the defendants have argued that Haddad has not presented a
substantial need for the documents because any unavailability or fading memories were caused
by his failure to diligently contact or question the students.
In reply, Haddad has indicated that the defendants have exaggerated his responsibility for
any delay in contacting the witnesses. He has noted that the defendants did not provide all of the
witness’ names until January 17, 2013. Additionally, his prior counsel attempted to schedule
depositions in mid-2013, but that the parties agreed to place discovery on hold until the court
resolved the defendants’ September 13, 2013 Motion to Compel. This court decided that motion
on January 15, 2014, but Haddad stated that his prior counsel withdrew in mid-2014.
Additionally, he did not retain his present counsel until August 28, 2014, who needed time to
review the case file and then began contacting witnesses soon after October 21, 2014.

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At this time, Haddad has failed to demonstrate that he cannot find a substantial equivalent
of the documents without undue hardship. Generally, the cost or inconvenience of taking
depositions is insufficient to meet the undue hardship requirement. Murphy, 259 F.R.D. at n.10
(citation omitted). Additionally, “assertions of possibly faded memories—as distinct from a
witness’s statements during the course of a deposition that she does not remember relevant
facts—cannot suffice to overcome the work product privilege.” Sullivan v. Warminster Tp., 274
F.R.D. 147, 153 (E.D. Pa. 2011) (quoting United States v. Urban Health Network, Inc., 1993
WL 12811, at *3 (E.D. Pa. Jan. 19, 1993) (citations omitted)). A party satisfies the substantial
need and undue hardship requirements when they depose the witnesses and they cannot recollect
the events during the deposition, but mere surmise and conjecture that witnesses cannot recall the
events is insufficient. Eoppolo v. Nat’l R.R. Passenger Corp., 108 F.R.D. 292, 295 (E.D. Pa.
1985); see Howard v. Seaboard Coastline R. Co., 60 F.R.D. 638, 639 (N.D. Ga. 1973).
Haddad has not demonstrated that he has taken formal measures to contact and question
the witnesses. Therefore, he has not shown a substantial need and undue hardship at this time.
However, he may demonstrate that if the witnesses cannot recall their statements or the events of
the assault during a deposition or other formal discovery measure.
Haddad also indicated that the defendants withheld the affidavits and questionnaires
pursuant to FERPA. Because the court has found those documents privileged under the work
product doctrine, it will not address that issue. Furthermore, the defendants did not claim
privilege under FERPA in their Response Brief. Therefore, that argument is waived.
“The great operative principle of Rule 37(a)(5) is that the loser pays.” Charles Alan
Wright et al., 8B Federal Practice and Procedure Civil § 2288 at 787 (3d ed. 2014). “Fee
shifting when the judge must rule on discovery disputes encourages their voluntary resolution

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and curtails the ability of litigants to use legal processes to heap detriments on adversaries (or
third parties) without regard to the merits of the claims.” Rickels v. City of South Bend, Ind., 33
F.3d 785, 787 (7th Cir. 1994). Any loser may avoid payment by showing that his position was
substantially justified. Rickels, 33 F.3d at 787. The failure to disclose is sanctionable and
properly remedied by an order compelling discovery. Rules 37(a)(3)(B), (a)(4), (a)(5); Lucas v.
GC Services, L.P., 226 F.R.D. 328, 329–30 (N.D. Ind. 2004). Federal Rule 37(a)(5)(A) states
that the court shall require sanctions based upon the costs of seeking a motion to compel. See
Stookey v. Teller Training Distribs., Inc., 9 F.3d 631, 637 (7th Cir. 1993) (citing the prior
section number) (“Rule 37(a)(4) clearly allows for an award of the expenses incurred in
obtaining an order to compel, including attorney’s fees.”). Sanctions under Rule 37(a)(5) are
appropriate unless the movant filed the motion without attempting in good faith to obtain the
discovery without court action, the party’s nondisclosure was “substantially justified,” or other
circumstances make an expense award unjust. Rule 37(a)(5)(A). In addition, Federal Rule
37(c)(1) states that a party who fails to disclose, provides false or misleading disclosure, or
refuses to admit information required by Rule 26(a) without “substantial justification” may be
sanctioned unless such failure was “harmless.” Musser v. Gentiva Health Servs., 356 F.3d 751,
755 (7th Cir.2004); Salgado v. Gen. Motors Corp., 150 F.3d 735, 742 (7th Cir.1998); Engel v.
Town of Roseland, 2007 WL 2903196, at *6 (N.D. Ind. Oct. 10, 2007). Thus, Rule 37(a) is a
fee-shifting rule, and the loser must pay unless it demonstrates that the movant filed the motion
before attempting to obtain the discovery in good faith without court action, its position was
“substantially justified,” or other circumstances make an expense award unjust.
Considering the split in authority regarding the work product doctrine and non-party
witness affidavits and the lack of controlling Seventh Circuit precedent, the court finds that an

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expense award is unjust under the circumstances. Each party was substantially justified in their
positions.
Based on the foregoing reasons, the Motion for Sanctions [DE 80] filed by Haddad is
DENIED, and the Motion to Compel Production of Student Affidavits and Questionnaires [DE
88] is DENIED.
ENTERED this 7th day of April, 2015.
/s/ Andrew P. Rodovich
United States Magistrate Judge

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