Opinion
Case No. 03 C 50190.
October 12, 2005
MEMORANDUM OPINION AND ORDER
This matter is before the court on Plaintiffs' September 19, 2005 Motion to Compel and Motions brought to the court's attention at the October 11, 2005 discovery conference. For the reasons stated below, Plaintiffs' September 19, 2005 Motion to Compel is granted in part and denied in part, though the court reserves ruling on Plaintiffs' Request 3 pending the seven day response period set by the court at the October 11, 2005 hearing. Plaintiffs' Motion to Bar Depositions not Presently Scheduled is denied without prejudice. Plaintiffs' Motion to Compel Production of Documents regarding Bobby Cates is denied without prejudice. Plaintiffs' Motion to Compel August 11, 2004 Interrogatories and Production Request Responses is denied without prejudice. Plaintiffs' September 14, 2005 Motion for Instructions regarding Previously Privileged Documents and Request for Protective Order is denied without prejudice. Defendant's Motion for Additional Time to Respond to Interrogatories regarding Affirmative Defenses is denied without prejudice. Defendant's Motion to Clarify March 3, 2005 Order and Allow Interrogatories to Absent Class Members is under advisement pending the seven day response period set by the court at the October 11, 2005 hearing; as is Defendant's Renewed Motion to Compel Answers to December 31, 2005 Interrogatories of Reconsideration of the Court's September 8, 2005 Order. On the court's own Motion, the scheduling order is modified as stated in court on October 11, 2005. The certification date is extended to December 9, 2005.
I. History
Plaintiffs' September 19, 2005 Motion to Compel requested the court to order production of nine categories of information: (1) the July 2005 Work Force Data Base; (2) Computer Codes; (3) Compliance with Federal Affirmative Action Statute; (4) Hermelinda Thompson; (5) Minority Raises; (6) Database Discrepancy; (7) 42 U.S.C. 2000e02(k); (8) Job Postings; and (9) Affirmative Defenses. Defendant's Response to the Motion mooted some of the issues, clarified others, and generally indicated that more time was needed to respond to outstanding discovery.
Plaintiffs' Motion was further discussed at the October 11, 2005 discovery hearing along with four other Plaintiffs' Motions and three Defendant's Motions (listed above) presented that day. The court supervised a L.R. 37.2 conference at the discovery hearing. Though the parties were able to resolve some discovery disputes, Plaintiffs' and Defendant's Motions largely remained unsettled. The court allowed the parties seven days to supplement the record on five issues each that they themselves prioritized for the court. In order to streamline that response, the court issues this Memorandum Opinion and Order narrowing the scope of open issues.
II. Analysis
Plaintiffs' September 19, 2005 Motion to Compel is not representative of the typical Rule 37 discovery dispute where one party asserts a failure to comply with a discovery request while the other asserts that the requested discovery is privileged, irrelevant, cumulative, burdensome, or untimely. Rather, Plaintiffs' September 19, 2005 Motion is a "clean-up" motion; i.e. Plaintiffs want to polish off discovery before the fact discovery cut-off. They also wish to preserve any objections that may be needed to ensure full compliance with their discovery requests. The resulting Motion, unfortunately, is skimpy on genuine discovery disputes, and overrun with timing and communication issues.
Generally, the parties are in the best position to resolve these issues as the court has to be brought up to speed on a large amount of information to resolve even the tiniest of these discovery disputes. In this case, the court has not given up hope that the parties will be able to come together in this "last lap" of discovery to perform the imperative role of solving discovery problems, and, at the very least, narrowing the disputes that require the court's attention.
The court is also realistic. After giving the parties time to resolve the discovery disputes raised in Plaintiffs' September 19, 2005 Motion on their own, ordering a L.R. 37.2 conference (which did not occur), and supervising a L.R. 37.2 conference at the parties' October 11, 2005 discovery conference, this court finds the parties need a push in a helpful direction.
As such, the court grants Plaintiffs' Motion in part and denies it in part as follows:
(1) Plaintiffs' Requests 1, 4, and 8 (described above) are moot due to subsequent production and statements by Defendant;
(2) Plaintiffs' Request 2 is granted to the extent that Defendant is ordered to respond to Plaintiffs' inquiry into whether or not 000-1 and 001-1 both apply to academy students (and if not, what the second code means) within seven days of receipt of this Order;
(3) Plaintiffs' Request 3, though technically mooted by the court's September 23, 2005 Order that production of outstanding discovery occur by October 7, 2005, is a live issue as Defendant has apparently not complied. The parties were able to take substantial steps in working out the timing of production of the previously ordered discovery at the October 11 discovery conference. Plaintiffs noted, however, that any significant delay in production may necessitate the continuation of "apex" depositions (and the depositions of Opperman, Glisan, Stinson, and Caspar). Though the court is confident that a meaningful 37.2 conference would ensure that the court's help is not needed, the court will reserve ruling pending the seven day response time set by the court at the October 11, 2005 discovery conference;
(4) Plaintiffs' Request 5 is mooted as Defendant has agreed to supplement its response by October 14, as stated in open court on October 11, 2005;
(5) Plaintiffs' Request 6 is denied based on Defendant's representation that it spelled out the only "known" changes in its databases — Defendant shall apprize Plaintiffs of any subsequent changes and shall make Plaintiffs aware of any previous changes should it become aware of this information;
(6) Plaintiffs' Request 7 is granted. Though the court can follow Defendant's logic in objecting to the Interrogatory as written, it became clear at the October 11, 2005 hearing that the Plaintiffs seek information not reached by the objections raised by Defendant. Regardless of whether Defendant contends it is in compliance with 42 U.S.C. 2000e02(k) as a whole, Plaintiffs seek Defendant's position on whether or not its practices and procedures used since May, 1999 to determine the compensation for its employees are job related as contemplated by 42 U.S.C. 2000e02(k). If yes, Defendant seeks the facts which support the contention, identification of persons with knowledge and an explanation of their knowledge, identification of documents which evidence job relatedness, and all studies, analyses, and proposals for studies and analyses performed with respect to such practices and procedures. Defendant certainly cannot avoid answering this legitimate contention interrogatory simply because 42 U.S.C. 2000e02(k) is a burden shifting statute. It is likewise overzealous to read 42 U.S.C. 2000e02(k)'s burden shifting framework into Plaintiffs' interrogatory. Defendant is given twenty-one days from receipt of this Order to respond to Plaintiffs' May 20, 2005 Interrogatory #1.
(7) Plaintiffs' Request 9 is denied without prejudice. The request is premature as the significance of Plaintiffs' September 29, 2005 Supplemental Response to Contention Interrogatories on the timing of Defendant's Response to Plaintiffs' Contention Interrogatory Regarding Affirmative Defenses is unclear. Parties should meet and confer on reasonable time lines for production before bringing this Motion to the court's attention again.
Finally, Plaintiffs' September 19, 2005 Motion to Compel was accompanied by a Motion for Sanctions. This Motion is denied without prejudice. The court reminds both parties that ultimate production of materials requested in the discovery process does not absolve the failure to produce materials in a timely fashion. Fautek v. Montgomery Ward Company, Inc., 96 F.R.D. 141, 145 (N.D. Ill. 1982). Failure to comply with the time lines set by the court warrants sanctions, and "the degree of culpability is only a factor in determining the severity of the sanctions to be applied." Id.
III. Conclusion
For the foregoing reasons, Plaintiffs' September 19, 2005 Motion to Compel is granted in part and denied in part, though the court reserves ruling on Plaintiffs' Request 3 pending the seven day response period set by the court at the October 11, 2005 hearing. Plaintiffs' Motion to Bar Depositions not Presently Scheduled is denied without prejudice. Plaintiffs' Motion to Compel Production of Documents regarding Bobby Cates is denied without prejudice. Plaintiffs' Motion to Compel August 11, 2004 Interrogatories and Production Request Responses is denied without prejudice. Plaintiffs' September 14, 2005 Motion for Instructions regarding Previously Privileged Documents and Request for Protective Order is denied without prejudice. Defendant's Motion for Additional Time to Respond to Interrogatories regarding Affirmative Defenses is denied without prejudice. Defendant's Motion to Clarify the March 3, 2005 Order and Allow Interrogatories to Absent Class Members is under advisement pending the seven day response period set by the court at the October 11, 2005 hearing; as is Defendant's Renewed Motion to Compel Answers to December 31, 2005 Interrogatories of Reconsideration of the Court's September 8, 2005 Order.