Art Akiane LLC. v. Art & Soulworks LLC
| Decision Date | 18 September 2020 |
| Docket Number | No. 19 C 2952,19 C 2952 |
| Court | U.S. District Court — Northern District of Illinois |
| Parties | ART AKIANE LLC., Plaintiff, v. ART & SOULWORKS LLC and CAROL CORNELIUSON, Defendants. |
MEMORANDUM OPINION AND ORDER
The briefing on the present discovery dispute, [Dkt. #147] while extensive, unfortunately has tended from time to time to focus on the interactions between counsel, which, on occasion, appear to have been strained. [Dkt. #147, Dkt. #148, at 2-6; Dkt. # 157, at 1-7; Dkt. #160, at 1-5]. Given the disparities between the descriptions by counsel of various meetings and interactions, one may well wonder if the respective counsel were at the same meetings and participated in the same interactions. The Response to the Defendants' Motion says it has been withdrawn and suggests that Plaintiff is still producing documents and parts of the defendants' motion are moot. The Defendants deny that in their Reply. Short of ongoing physical supervision by the court, it is often difficult, if not impossible, to determine what has actually gone on between counsel. And, a review of the often competing and lengthy emails exchanged between counsel seldom resolves factual disputes or allows a court to come to a conclusive determination of what actually occurred. Thus, one side saying it has complied with appropriate discovery requests or that further supplementation is not required is not necessarily conclusive. And so, where there is a dispute, we must decide the Motion that has been filed. [Dkt. #147].
We do not in any way mean to be critical of the skilled lawyers in this case. Quite the contrary. But this is the fifth motion to compel in this case in a matter of about two months. What has occurred here unfortunately is emblematic of the discovery conflicts which routinely (and often needlessly) occur in case after case. See Bell Atlantic v. Twombly, 550 U.S. 544, 559 (2007) (). See also Frank H. Easterbrook, Discovery as Abuse, 69 B.U.L.Rev. 635, 639 (1989). Unfortunately, the problem is not new.1 But, to borrow the title of an Article by Judge Gettleman, "We Can Do Better." 25 LITIGATION 3 (Summer 1999).
Without minimizing the importance of the case, the fact remains that, at bottom, this is a case about the commercial rights to about a dozen paintings. With each motion, the party filing it represents that there has been compliance with Local Rule 37.2 and that counsel have conferred in a good faith effort to resolve their discovery dispute. But as this is the fifth dispute between the parties in just a few weeks, it is difficult to conclude that Local Rule 37.2 is really being honored and to understand how such talented lawyers could find themselves in such dilemmas.
The Defendants complain of fifty separate discovery requests that they claim the Akianes have not complied with, and they contend further that there has been noncompliance with certain of the Local Rules. [Dkt. #147, 148]. Thus, despite the fact that there could have been multiple "meet-and-confers," [Dkt. # 148, at 2, 5], a large number of disputes have been left unresolved. We are told that emails, not Rule 37.2 conferences, were the preferred method of communication in other disputes and that conferences were very rare in comparison to emails between counsel. [Dkt. #160, at 7]. While emails may be the way of the world today,2 under Local Rule 37.2, they are not a substitute for a face-to-face or telephonic meeting at which counsel can actually speak to each other, with a view to resolving disputed issues, and not merely repeating positions that have been set forth in prior written email exchanges. The Rule could not be clearer and must be followed. See BankDirect Capital Fin., LLC v. CapitalPremium Fin., Inc., 343 F. Supp. 3d 742, 744 (N.D. Ill. 2018)(collecting cases). Unfortunately, in all too many cases, no more than lip service is paid to the Rule's requirements and, in effect, the task of resolving the conflicts that could and should have been resolved by counsel had Rule 37.2 been followed are shifted to the court.
The Motion to Compel cites some fifty separate discovery requests and accompanying responses from six different documents served on three different counter-defendants that the defendant has issues with. Unfortunately, not a single case is cited in support of the Motion as to any one of about forty-five of the requests. Courts generally find that unacceptable. See, e.g., Shipleyv. Chicago Bd. of Election Commissioners, 947 F.3d 1056, 1063 (7th Cir. 2020)("Arguments that are underdeveloped, cursory, and lack supporting authority are waived."). Accord Uncommon, LLC v. Spigen, Inc., 926 F.3d 409, 419 n.2 (7th Cir. 2019); Crespo v. Colvin, 824 F.3d 667, 674 (7th Cir. 2016). The Reply Brief suffers from the same deficiency.
The only case cited in the Motion to Compel has to do with litigation funding. Fulton v. Foley, 2019 WL 6609298, at 4 (N.D. Ill. 2019). For the Defendants, "[funding] documents are relevant to exploring statements or representations about the facts of the case that [Plaintiff] Counter-Defendants have made and could expand on the allegations of ASW's counterclaims, identify witnesses and potentially be used for impeachment." [Dk. #148 at 12]. But that rationale would obtain in every case and make all funding information discoverable. The cases do not conclude that that is an acceptable rationale for discovery of litigation funding information.
In addition, the Defendants' Reply Brief [Dkt. #160] also does not cite any cases, aside from the case regarding their request for Third-Party funding information contained in their opening brief. [Dkt. #148 at 12]. There is merely the ipse dixit that requests involving "litigation funding" might or could reveal information involving the issues in the case. But, as has been said above, if that generalization alone were sufficient, third party funding information would, in effect, be automatically discoverable since matters relating to a given case might have been discussed in some way with actual or prospective lenders. But third party funding information is not automatically discoverable as courts across the country have held. Indeed, Fulton acknowledged those courts that have addressed the issue have held that litigation funding information is generally irrelevant to proving the claims and defenses in a case. See the authorities collected in Fulton, 2019 WL 6609298at *2. See also Miller UK Ltd. v. Caterpillar, Inc., 17 F.Supp.3d 711, 742 (N.D. Ill. 2014).3
Significantly, while there are eighteen affirmative defenses and seven separate counterclaims against the Plaintiff, aside from a couple of the documents requests, there is no indication how the requests are relevant to any of the defenses or counterclaims and no specification of which counterclaim or affirmative defense is involved. While it would be a difficult task to sort out so many discovery requests and show how any are relevant to so many affirmative defenses and counterclaims, it is required, and a broad-based, generalized approach is often not conducive to persuading a court of the correctness of a particular position that is sought to be advanced. Indeed, there is a danger in such a case that a court might overlook an otherwise meritorious position. See, e.g., Fifth Third Mortg. Co. v. Chi. Title Ins. Co., 692 F.3d 507, 509 (6th Cir. 2012)("When a party comes to us with nine grounds . . . , that usually means there are none."); Walker v. Abbott Laboratories, 416 F.3d 641, 643 (7th Cir. 2005); United States v. Mahoney, 247 F.3d 279, 282 (D.C.Cir. 2001); Pit Song Barger v. Gramley, 141 F.3d 728, 74 (7th Cir. 1998); United States v. Brock Smith, 991 F.2d 1363, 1366 (7th Cir. 1993).
In the main, the Argument section of the Defendants' brief goes like this:
That is what the defendants have provided for over forty-one of the fifty or so requests on which they seek a ruling. There are no explanations given or arguments presented. It is just a list. And while I could grant a motion supported by an appropriate memorandum, with citations to the record and supported by pertinent authority, I ought not and cannot grant a list like the one provided. In essence, the defendants have asked me to scroll through nine exhibits, covering 250 pages, and for each of the four dozen or so requests, discern how it is relevant to any one of the defendants' twenty-five counterclaims or affirmative defenses, and then manufacture an argument, illuminated by case law, on the defendants' behalf.4 "We will not fill th[e] void by crafting arguments and performing the necessary legal research" on behalf of either side. Fednav Int'l Ltd. v. Cont'l Ins. Co., 624 F.3d 834, 842 (7th Cir. 2010).
This is not a preference; it is something courts are forbidden to do. See, e.g., Bunn v. Fed. Deposit Ins. Corp. for Valley Bank Illinois, 908 F.3d 290, 297 (7th Cir. 2018); Rahn v. Bd. of Trustees of N. Illinois Univ., 803 F.3d 285, 294 (7th Cir. 2015); Friend v. Valley View Cmty. Unit Sch. Dist. 365U, 789 F.3d 707, 711 (7th Cir. 2015). Requiring the...
To continue reading
Request your trial