Opinion
99 C 1817
May 7, 2002
On March 26, 2002, at the plaintiffs' request, I reviewed my previous rulings and issued an order correcting plaintiffs' misconceptions that I had stayed fact discovery. At that time, I ruled that if plaintiffs wanted to take additional depositions, they had to file a motion arguing that they should be permitted to do so in the interests of justice. Remarkably, plaintiffs do not even explicitly raise their Interest of justice argument until their reply papers and, even then, I have to do a lot of reading between the lines. Plaintiffs do not offer much in the way of argument about the critical nature of any of these depositions to their case.
The standard for granting an extension of time after the expiration of a deadline is "excusable neglect." Fed R. Civ. P. 6(b)(2). See Cagle v. K-Five Construction Co., 1997 WL 75645, at *3 (N.D. Ill. 1997) (finding that excusable neglect merits relief for a missed deadline only where the actions leading to the default were not willful, careless or negligent) (citing Johnson v. Gundmundsson, 35 F.3d 1104, 1007 (7th Cir. 1994). I am permitted to make an exception in instances where to prohibit the extension of the deadline would result in extreme injustice to the defaulting party. Plaintiffs seek to depose four additional witnesses and offer different reasons for each. I will address each witness in turn.
First, plaintiffs request the opportunity to depose Kurt Bressner. Plaintiffs' interrogatories requested defendant to "identify all persons involved in building code and zoning enforcement, since January 1, 1997." Defendant did not disclose Mr. Bressner's name to plaintiffs on the theory that he did not directly issue citations but was merely a supervisor of those that did. This appears to be a deliberate misreading of a broadly-drafted request but, regardless of whether it was deliberate, I find that Mr. Bressner was "involved" and falls within the ambit of the interrogatory and his name should have been disclosed in response to it. Accordingly, in the interest of justice, I will allow plaintiffs additional time to depose Mr. Bressner.
Turning to Larry Bazzar, plaintiffs' pertinent interrogatory reads as follows: "Identify all persons involved in building code and zoning enforcement, since January 1, 1997. If a past employee, state his or her home address and social security number." Here, defendants (probably, rightly) took advantage of plaintiffs' poor drafting. As Mr. Bazzar was an independent contractor who was no longer working for defendant, defendants considered that he did not fall within the parameter of the second sentence. It is worth noting, however, that in defendant's answer it refers to Mr. Bazzar's employment with defendant so the line is not so clear even to defendant. Nevertheless, another witness deposed by plaintiff identified Mr. Bazzar to plaintiff eight months before the close of discovery and plaintiffs had ample time to arrange a deposition. Plaintiffs offer me no argument about the criticality of this witness to allow me to extend the deadline for a deposition of him.
Likewise, plaintiffs offer no argument about the critical nature of Raphael Perez to its case or even any information about why he was not deposed within the time allowed.
Finally, plaintiffs request to depose a Rule 30(b)(6) individual who can explain the change in enforcement activity against Hispanics after the filing of this lawsuit. Plaintiffs attach a report prepared by one of their experts and claim that this request could not have been made within the deadline because their expert only recently completed the report. I find unpersuasive defendant's argument that it cannot produce an individual to explain documentation that defendant did not create; it is in charge of enforcement and can produce an individual competent to speak to plaintiffs' data about changes in enforcement patterns or the like. Taking into account that plaintiff only recently obtained this report, in the interest of justice, I will allow plaintiffs additional time to depose an individual who can explain the change in enforcement activity against Hispanics after the filing of this lawsuit.
Plaintiffs' motion for leave to depose four additional witnesses [52-1] is GRANTED in part and DENIED in Part. Plaintiff may have 35 days from the entry of this order to depose Mr. Bressner and the Rule 30(b)(6) individual described herein.