Opinion
No. 96 C 1122
November 9, 2001
MEMORANDUM OPINION AND ORDER
Defendant City of Chicago and subpoenaed Electrical Contractors Association (ECA) of the City of Chicago both object to the August 29, 2001, Memorandum Opinion and Order of Magistrate Judge Geraldine Brown, although for entirely different reasons. The City objects to the quashing of approximately 500 subpoenas. ECA wants attorneys' fees arising from its successful efforts to resist the subpoenas. Both objections are overruled.
In a thorough opinion Magistrate Judge Brown explained why she believed that the subpoenas should be quashed. We overturn that conclusion only if it is clearly erroneous or contrary to law. And the ruling is clearly erroneous only if we are left with the definite and firm conviction that a mistake has been made. We are not at all convinced.
The City contends that it had to turn to third party subpoenas because the plaintiff Builders Association of Greater Chicago (BAGC) was less than forthcoming in discovery; that it needs the information to construct a statistical model demonstrating past discrimination; that post-enactment evidence is admissible to buttress pre-enactment evidence and to test plaintiff's allegations, particularly when the requested relief is injunctive; and that it has offered to scale back significantly the scope of the subpoenas.
The central issue here is whether the City had discriminated against minority contractors or had stood passively by when it knew that contractors were discriminating against minority contractors on public construction jobs, thus justifying the adoption of an affirmative action program in April 1985, and then amended in 1990. The City claims that it is enough that it had a strong basis in evidence then to justify the program, and that it can introduce later acquired evidence to bolster that earlier conclusion. That may well be so, and Magistrate Judge Brown assumed that to be so. She also dealt directly with the proposed scaling back of the scope of the subpoenas.
But the subpoenas, even scaled back, go far beyond that issue. Even as modified, they seek a host of documents from 1978 to the present, including all documents relating to private sector projects. Magistrate Judge Brown recognized that the burden of production was great indeed; she believed that much of the resulting mass of raw data would be, at best, of questionable relevance; and she questioned whether even a subset of the data would be useful in constructing a meaningful statistical model. We think she had ample reasons for concluding that the subpoenas imposed an undue burden. The issue here is not whether there has been or is discrimination in the construction industry; it is whether the City was justified in requiring a set-aside program for public projects in 1985 and 1990. We conclude that Magistrate Judge Brown was well within her discretion in quashing the subpoenas.
We overrule the objection of ECA because it has nothing to object about. Magistrate Judge Brown has not yet ruled on its application. Accordingly, the appeal is premature.