Alight Sols. v. Thomson
| Decision Date | 03 November 2021 |
| Docket Number | 20 C 3043 |
| Parties | ALIGHT SOLUTIONS, Plaintiff, v. SUSAN THOMSON, et al., Defendants. |
| Court | U.S. District Court — Northern District of Illinois |
“Defer no time delays have dangerous ends.” Henry VI, Part I (1592) Act III, sc. ii 1.33
Late in the afternoon on the day discovery was scheduled to close plaintiff Alight filed what it called a “Motion to Compel Production of ESI, ” but which is actually a motion asking the court to order defendant Thomson to turn over all her personal devices - (I) iPad; (ii) Microsoft Surface laptop; (iii) iPhone; and (iv) Mac (Apple) desktop computer - for a third-party forensic inspection and a motion to reopen discovery and extend it indefinitely. For the following reasons, the motion [Dkt. # 85] is denied.
First it has to be said that Alight's motion is at least somewhat audacious as it completely ignores the fact that discovery was set to close a couple of hours after it was filed on October 12th. Alight seems indifferent to the fact that the relief it asks for, a turnover of multiple personal devices for a lengthy and complicated inspection see The Sedona Principles, Second Edition: Best Practices, Recommendations & Principles for Addressing Electronic Document Production 34, 47 (2007)(“[M]aking forensic image backups of computers is only the first step of an expensive, complex, and difficult process of data analysis . . .”), would necessitate a reopening of discovery for a lengthy and indeterminate time. There are rules about things like that - and Alight improvidently ignores all of them. But that is a foolhardy and improper mode of proceeding. Tatalovich v. City of Superior, 904 F.2d 135 (7th Cir. 1990); Lizza & Sons, Inc. v. Domenico & Pallotta, 23 F.R.D. 143 (D.Mass. 1959).
Under Federal Rule of Civil Procedure 16(b)(4), “[a] schedule may be modified only for good cause and with the judge's consent.” MAO-MSO Recovery II, LLC v. State Farm Mut. Auto. Ins. Co., 994 F.3d 869, 878 (7th Cir. 2021). “Rule 16(b)'s ‘good cause' standard primarily considers the diligence of the party seeking amendment.” Trustmark Ins. Co. v. Gen. & Cologne Life Re of Am., 424 F.3d 542, 553 (7th Cir. 2005); see also Empress Casino Joliet Corp. v. Balmoral Racing Club, Inc., 831 F.3d 815, 832 (7th Cir. 2016); Alioto v. Town of Lisbon, 651 F.3d 715, 720 (7th Cir. 2011). The burden of demonstrating good cause and diligence under Rule 16(b)(4) is a more onerous burden than demonstrating “excusable neglect” under Rule 6(b)(1)(B). Schloss V. City of Chicago, 2021 WL 4962663, at *3 (N.D. Ill. 2021); McCann v. Cullinan, 2015 WL 4254226, at *10 (N.D. Ill. 2015). The inability to meet multiple deadlines - especially when those deadlines are chosen by counsel - is not diligence. See, e.g., POM of Pennsylvania, LLC v. Pennsylvania Skill Games, LLC, 2020 WL 6047863, at *3 (W.D. Pa. 2020)(after multiple extensions, another is not warranted); Ochoa v. City of Oceanside, 2016 WL 6124463, at *3 (S.D. Cal. 2016)(considering history of extensions in diligence analysis); Santiago v. New York & New Jersey Port Authority., 2015 WL 1107344, at *2 (D.N.J. 2015)(multiple extensions).
Because of Alight's insouciance, compare Boyd v. Reaves, 2021 WL 4193338, at *1 (S.D. Ind. 2021)(criticizing counsel for failure to acknowledge discovery deadline), its motion did not even bother to address the requirements of Fed.R.Civ.P. 16(b)(4) and the applicable caselaw. All Alight manages to come up with is a half-hearted assertion in a footnote in its reply brief - it cannot get more cavalier or more improperly self-serving than that - that the discovery deadlines do not matter because continued discovery here would not prejudice the parties. [Dkt. #91, at 13 n.10]. But Alight's position could not be more flawed. Conveniently, (and no doubt intentionally) it ignores the basic proposition of law and life that “saying so doesn't make it so....” United States v. 5443 Suffield Terrace, Skokie, Ill., 607 F.3d 504, 510 (7th Cir.2010). Accord Madlock v. WEC Energy Group, Inc., 885 F.3d 465, 473 (7th Cir. 2018); Illinois Republican Party v. Pritzker, 973 F.3d 760, 770 (7th Cir. 2020)(“Notably absent from these allegations, however, is any proposed proof that state actors, not municipal actors, were engaged in this de facto discrimination.”); Donald J. Trump for President, Inc. v. Secy of Pennsylvania, 830 F. Appx 377, 381 (3d Cir. 2020)( ). Even the Solicitor General's unsupported assertions are not enough. Digital Realty Trust, Inc. v. Somers, U.S., 138 S.Ct. 767, 779 (2018); Bowers v. Dart, 1 F.4th 513, 520 (7th Cir. 2021)(“With all of this evidence in mind, we share the district court's conclusion that a rational juror could doubt that Bowers was telling the truth by insisting he could not walk.”). Cf. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)(Rule 8 does not “unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.”).
Moreover, contrary to Alight's view of things, what does not matter here is prejudice or lack thereof. It simply does not enter into the analysis. Peters v. Wal-Mart Stores E., LP, 512 Fed.Appx. 622, 628 (7th Cir. 2013); Atain Specialty Ins. Co. v. Sandwich Fair Ass'n, Inc., 2021 WL 929093, at *2 (N.D. Ill. 2021); Experience Based Learning, Inc. v. Hanover Ins. Co., 2019 WL 2576390, at *5 (N.D. Ill. 2019). As such, Alight has not made the required showing or offered a “[]sufficiently robust explanation of why [it] was diligent.” Alioto, 651 F.3d at 720.
Certainly, the history of this case does not leave one with the impression of “diligence.” Quite the contrary. Discovery began back in October of 2020, with the parties completing initial disclosures October 15, 2020. [Dkt. #21]. The court allowed the parties to select April 30, 2021, as their fact discovery deadline. [Dkt. ##21, 25]. The court then generously granted the parties extension after extension. On February 28, 2021, the court extended the April 30, 2021 deadline to July 30, 2021. [Dkt. #44]. On June 10, 2021, the court gave the parties another month to complete their discovery, until August 31, 2021 [Dkt. #70]. On August 25th, the August 31st deadline became September 30th. [Dkt. #79]. And, most recently, when the parties proved unable to meet their discovery deadline for the fourth time, the court allowed them yet another month, until October 12, 2021. For the parties, the deadlines were nothing more than mileposts that they sped by as they careened discovery in this relatively simple case into it second year.
As the 1983 advisory committee note explains, among the aims of Rule 16 are to prevent parties from delaying or procrastinating and to keep the case “moving toward trial.” Alioto, 651 F.3d at 720. Spears v. City of Indianapolis, 74 F.3d 153, 157 (7th Cir. 1996). Deadlines in this case have been routinely ignored, and the history of the case suggests that delay and procrastination have been the rule. As such, it is well within the court's discretion to deny the motion. Winters v. Fru-Con Inc., 498 F.3d 734, 743 (7th Cir. 2007)(“We review the district court's decision not to reopen discovery for abuse of discretion.”); Reales v. Consol. Rail Corp., 84 F.3d 993, 997 (7th Cir. 1996)(“The judge was therefore well within his discretion in concluding that the [plaintiff] had not demonstrated good cause for obtaining a fourth extension of time.”). See also Pyatt v. AECOM Tech. Servs., Inc., F.4th, 2021 WL 4147091, at *4 (11th Cir. 2021)(“[W]e have often held that a district court's decision to hold litigants to the clear terms of its scheduling orders is not an abuse of discretion.”); Josendis v. Wall to Wall Residence Repairs, Inc., 662 F.3d 1292, 1307 (11th Cir. 2011)(“. . . though the court had the authority to grant a post hoc extension of the discovery deadline for good cause, it was under no obligation to do so; in fact, we have often held that a district court's decision to hold litigants to the clear terms of its scheduling orders is not an abuse of discretion.”). In the end, “[a] scheduling order is not a frivolous piece of paper, idly entered, which can be cavalierly disregarded by counsel without peril.” Younes v. 7-Eleven, Inc., 2015 WL 4496621, at *2 (D.N.J. 2015). “Lawyers and litigants who decide to play by rules of their own invention will find that the game cannot be won.” United States v. Golden Elevator, Inc., 27 F.3d 301, 302 (7th Cir.1994). Accordingly, Alight's motion is properly denied under Fed.R.Civ.P. 16(b)(4).
Even if what Alight was asking for was not something so involved and open-ended that granting it would reopen discovery for an unspecified length of time, its motion would still be an eleventh-hour motion to compel. “When parties wait until the last minute . . . they are playing with fire.” Spears, 74 F.3d at 157. Last minute motions to compel are rarely proper and are rarely well-received. See, e.g., Packman v. Chicago Trib Co., 267 F.3d 628, 647 (7th Cir. 2001)(district court did not abuse its discretion in denying plaintiff's eleventh-hour motion to compel discovery); Summy-Long v. Pennsylvania State Univ., 715 Fed.Appx. 179, 184 (3d Cir. 2017)(district court properly denied motion to compel filed on the last day of discovery as untimely). While courts are always appreciative of parties taking some time to work out their differences before asking for judicial intervention,...
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