Opinion
Case No. 03 C 50190.
November 7, 2005
MEMORANDUM OPINION AND ORDER
This matter is before the court on Plaintiffs' September 19, 2005 Motion to Compel Defendant's Counsel to Comply with Court Orders, Provide Discovery Materials and Information and for Sanctions. On October 12, 2005, the court reserved ruling on Request 2(c) of Plaintiffs' Motion pending a seven day supplemental response period. For the reasons stated below, Plaintiffs' Motion regarding Request 2(c) is granted in part and denied in part.
In the court's Opinion, Plaintiffs' Requests were renumbered for the court's convenience and for clarity. Request 2(c) was renumbered as Request 3. The court now reverts back to Plaintiffs' original labels.
I. History
On August 31, 2005, the court issued its ruling on Plaintiffs' August 22, 2005 Motion to Compel Production of Documents Containing Representations of Compliance with Federal Contractor Affirmative Action Obligations. Plaintiffs had moved to compel a Response to their May 2, 2005 document request seeking affirmative action certifications, from 1999 to the present. Defendants had moved for a Protective Order from producing the same. The court found that Plaintiffs' likelihood of discovering relevant information from Defendant's production of documents containing representations of compliance with federal contractor affirmative action obligations ultimately outweighed the burden of production on Defendant, but the court also found that Defendant was entitled to certain protections from the unnecessary disclosure of discovery materials to private, non-governmental entities. Accordingly, the court granted Plaintiffs' Motion to Compel in part and ordered Defendant to produce all documents responsive to Plaintiffs' May 2, 2005 document request. However, the court limited the production in two ways. First, the court gave Defendant permission to redact the identifying information of private, non-governmental entities contained in documents produced. Second, the court granted Defendant's Motion for a Protective Order in part by restricting Plaintiffs from releasing to private, non-governmental entities information and documents produced by Defendant regarding certifications. The court did not set a deadline for production at this time.
II. Production Following the Court's Order Compelling a Response
Plaintiffs filed a September 19, 2005 Motion to Compel and for Sanctions when production under the August 31, 2005 Order was not forthcoming. When the court learned that Defendant had not complied with the August 31, 2005 Order at a September 23, 2005 discovery conference, the court ordered Defendant to comply with all outstanding discovery by October 7, 2005. When the court learned that Defendant's production was still not complete at a October 11, 2005 discovery conference, the court saw fit to remind the parties that "ultimate production of materials requested in the discovery process does not absolve the failure to produce materials in a timely fashion" in an October 12, 2005 Opinion. Fautek v. Montgomery Ward Company, Inc., 96 F.R.D. 141, 145 (N.D. Ill. 1982). The court also invited a supplemental response on the issue of production of affirmative action certifications, hoping the parties would resolve the logistics of production on their own.
Apparently, the parties did not reach an accord, as Plaintiffs' October 18, 2005 supplemental response set forth their case that Defendant had largely ignored the court's August 31, 2005 Order, and subsequent Orders, regarding affirmative action certifications. See Pl.s' Supp. Submission, at Ex. A.
First, Plaintiffs state that they wrote Defendant on September 15, 2005 to determine a date for production. Id. Plaintiffs state that Defendant's reply letter indicated the Defendant "did not know when the Defendant would comply with the Court's Order" and that "Woodward was too busy to allocate the resources necessary to comply." Id. A redacted sample certification was attached to the letter. Id. Plaintiffs state that the letter was redacted even though it did not identify private, non-governmental entities. Id.
Second, Plaintiffs cite the September 19, 2005 deposition testimony of Thomas Stinson ("Stinson"). See Pl.s' Supp. Submission, at Ex. A. Stinson testified that he was requested to produce a sample certification on September 16, 2005, but that he had never received a request to gather documents responsive to the Court's Order to Compel. Id. Stinson testified that he works with certifications for contracts of direct sales to the government; not private, non-governmental entities. Id. Stinson further stated that assigning a clerical person to go through the certifications would involve only a de minimis burden as all the documents were filed in one location. Id.
Third, Plaintiffs cite the September 19, 2005 deposition testimony of Stephen Casper ("Casper"). See Pl.s' Supp. Submission, at Ex. A. Casper testified that he worked with affirmative action certifications for contracts with private, non-governmental entities who have contracts with the government. Id. Casper stated he had never received a request to gather documents responsive to the Court's Order to Compel Id. He further testified that compliance would not be significantly burdensome. Id.
Fourth, Plaintiffs cite the untimely and deficient production they have received in response to their May 2, 2005 Production Request. In addition to the September 16, 2005 Stinson sample document, three undated, unsigned, redacted sample forms and a printout of the 2005 electronic certification form were sent by Defendants on October 10, 2005. See Pl.s' Supp. Submission, at Ex. A. On October 19, 2005, Plaintiffs received a package of direct government certifications for 2004 and 2005, but no indirect government contract certifications and no 1999-2003 certifications were sent. See Pl.s' October 24, 2005 Status.
In Defendant's Response to Plaintiffs' September 19, 2005 Motion to Compel and Defendants's October 18, 2005 supplemental response, Defendants stated they were in the process of responding to Plaintiffs' document request. Defendant indicated pulling, redacting, copying, and Bates-stamping the certifications was a costly and time consuming task, but offered no affidavits or other evidence is support of this statement. Defendant indicated its goal was to produce 2004-2005 certifications by October 21, 2005.
In court on October 11, 2005, Defendant indicated a person working full time would require at least four to six weeks to complete full compliance. Defendant based this estimate on a consultation with Carol Smith, an Human Resources employee of Woodward Governor.
III. Analysis
The court has fully analyzed production under Plaintiffs' Request 2(c) in a prior opinion. Bell, et al v. Woodward Governor Co., 03 C 50190 (N.D. Ill. Aug. 31, 2005). The court has also addressed this matter at several discovery conferences with the parties. In fact, the court supervised a L.R. 37.2 conference on this matter. Though Defendant states it is diligently working on production, Defendant has failed to demonstrate how its burden of production prevents timely compliance with the court's Orders. Even with the court's invitation of supplemental responses, no affidavits or new evidence of burden has been presented.
As such, full compliance with the court's August 31, 2005 ruling on Plaintiffs' Motion to Compel Production of Documents is ordered by November 30, 2005. Anything less than full production by Defendant risks imposition of the full range of sanctions authorized by Fed.R.Civ.P. 37, including Report and Recommendation by the Magistrate Judge that the District Court render judgment by default and enter a finding of liability against Defendant.
IV. Conclusion
For the above stated reasons, Plaintiffs' Motion regarding Request 2(c) is granted in part and denied in part. Full production in accordance with the court's outstanding Orders regarding affirmative action certifications to occur by November 30, 2005.