Bankdirect Capital Fin., LLC v. Capital Premium Fin., Inc.
Decision Date | 29 November 2018 |
Docket Number | No. 15 C 10340,15 C 10340 |
Parties | BANKDIRECT CAPITAL FINANCE, LLC, Plaintiff, v. CAPITAL PREMIUM FINANCING, INC., Defendant. |
Court | U.S. District Court — Northern District of Illinois |
Kerry Evan Saltzman, David B. H. Williams, Williams, Bax & Saltzman, P.C., Mitchell Bryan, Williams, Bax & Saltzman, Sean W. Gallagher, Wesley A. Morrissette, Bartlit Beck Herman Palenchar & Scott LLP, Chicago, IL, for Plaintiff.
Casey James Mcgushin, Timothy William Knapp, Brendan Edward Ryan, Mark William Premo Hopkins, Kirkland and Ellis LLP, Chicago, IL, for Defendant.
Counsel for Capital Premium has indicated to me by letter that a long-dormant discovery dispute from December of 2017 has been uncovered, with fact discovery having closed, mercifully, on November 15th. Discovery has been difficult, to say the least, entailing extended motion practice and increasing court supervision and involvement [See, e.g. , Dkt. ## 130, 135, 138, 142, 167, 170, 173, 185, 207, 209, 212, 223, 224, 225, 227, 229, 231, 239, 241, 252, 254, 255, 256, 262, 263, 264, 267, 270, 271, 313, 315, 325, 326], including two pending sanctions recommendations. [Dkt. ## 229, 340].
At issue are defendant, Capital Premium's document requests nos. 28 and 29 from its second set of document requests. The requests and plaintiff's objections are as follows:
It's not clear from Capital Premium's motion whether it ever attempted to comply with Local Rule 37.2 (or Fed.R.Civ.P. 37(a)(1) ) and meet and confer in good faith with BankDirect regarding this dispute. There is no certification from Capital Premium – although one is required – and, it would appear from BankDirect's response that the parties have done no more than exchange emails on this matter. That, as the rule and case law make clear, is insufficient. Letters do not count. In re Fluidmaster, Inc., Water Connector Components Prod. Liab. Litig. , 2018 WL 505089, at *2 (N.D. Ill. Jan. 22, 2018) (); Geraci v. Andrews , 2017 WL 1822290, at *1 (N.D. Ill. May 5, 2017) (); Infowhyse GmbH v. Fleetwood Grp. , 2016 WL 4063168, at *1 (N.D. Ill. July 29, 2016) () .
That's reason enough to deny Capital Premium's motion, see Local Rule 37.2; but the one email the parties did exchange, dated November 21st, resolves this dispute. In it, BankDirect informed Capital Premium that is does not have audited financial statements. In other words, there are no documents responsive to Capital Premium's request no. 29. As to request no. 28, BankDirect offered to produce the ratios Capital Premium requested if Capital Premium would withdraw its motion to compel. Capital Premium declined without explanation. [Dkt. # 354-1]. That's unacceptable, even if the exchange occurred in person. The Local Rule's requirement of "good faith" is not without meaning. Chicago Reg'l Council of Carpenters Pension Fund v. Celtic Floor Covering, Inc. , 316 F.Supp.3d 1044, 1046 (N.D. Ill. 2018) (); Gunn v. Stevens Sec. & Training Servs., Inc. , 2018 WL 1737518, at *3 (N.D. Ill. Apr. 11, 2018) ().
So, at long last – after a year – we learn there are no documents responsive to one request, and that BankDirect will produce documents responsive to the other request. But, apparently, Capital Premium prefers to maintain a motion to compel, take up the court's time, and waste taxpayer money rather than accept the ratios they requested. See Chicago Observer, Inc. v. City of Chicago , 929 F.2d 325, 329 (7th Cir. 1991) (...
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