Opinion
No. 99 C 7246
September 8, 2003
MEMORANDUM OPINION AND ORDER
Defendants move to bifurcate discovery. That motion is denied.
Plaintiffs contend that the Court of Appeals' opinion forecloses any further consideration of the demand futility issue. We disagree. What was before this court and then on appeal was the adequacy of the allegations of the complaint, which included the reasonable inferences arising from those allegations.
Even so, we do not believe bifurcation to be appropriate. This case was filed about four years ago and, because of the pleading wars, is just now getting into the merits. That delay counsels against any further delay. Defendants predict that a failure to bifurcate will lead to very costly discovery and discovery disputes. But if that is so, then plaintiffs will also be saddled with significant costs, both to litigate discovery disputes and to obtain and analyze discovery materials. The parties may conclude, in their own self-interest, that it would be better to get the demand futility issue determined conclusively, if possible, sooner rather than later. But we will not restrict discovery to that issue.