Opinion
No. 03 C 6493.
October 25, 2004
In this case, discovery has gone off the tracks. The net result is that I am ending it, with the exception of allowing a deposition by Defendants of Dr. Paulette Wilson and Susan Godwin. At such depositions, if Defendants elect to proceed, the Plaintiff may make inquiries and, if relevant, make the same use of the deposition that Defendants may. I am also directing Plaintiff to produce her W-2 forms and tax returns for the period of employment by Defendant or its parents or subsidiaries, which material shall be used only by Defendants and their attorneys and not disclosed to any other persons absent leave of court. I also grant Defendants' motion to bar Plaintiff from alleging any theory of discrimination not identified in her deposition.
Discovery was justifiably delayed due to the physical illness of Plaintiff's counsel, but since his recovery he has had adequate time to conduct discovery and has failed to do so. In some cases it is disquieting to end discovery — perhaps ending the plaintiff's case — because of the actions of a lawyer. Courts do it anyway, because the rules require it and it is, after all, the plaintiff who selected the lawyer. Here there is no disquiet. From the portion of the deposition of Plaintiff submitted to me, it is quite clear that the failure of discovery is due at least in part to the inability or unwillingness of Plaintiff to come to rest on a final and complete version of the facts. In simple terms, Plaintiff wants to reserve the right to add to her case if, later on, Plaintiff recalls more incidents.
Given the performance of Plaintiff at her deposition, it is no wonder that clear discovery was not forthcoming. Whatever arrows that Plaintiff now has in the quiver are the only arrows she will be able to use in this case. Her requests for further discovery are untimely. I understand her wish to use the incident of the promotion of one Czermanski as circumstantial evidence of bias but that incident occurred about five years prior to the incident that is the subject of the lawsuit. The Czermanski matter could not itself be the basis of a suit and there is no clear showing why the incident is truly comparable to the one involved in this case. Furthermore, had it been important, there is no excuse for waiting until nearly the end of discovery to request it. Had the discovery of this matter been the one thing left undone I might consider allowing the Plaintiff further discovery. This, however, is not the case. Discovery from the Plaintiff has been so sketchy and erratic that Defendants do not have a good basis on which to evaluate settlement or the worth of the case. If there were strong evidence to support the claim then Defendants ought to have been told of it in detail before now. One purpose of discovery is to allow the parties to assess whether the case is worth the candle to try — this purpose has been completely frustrated. Hence my ruling in the first paragraph of this order.
The motions of the Defendants to bar extension of Plaintiff's discovery, to take on their behalf two depositions, and to bar Plaintiff from alleging any theory of discrimination not identified in her deposition are granted.