Ezell v. City of Chi.
| Decision Date | 26 May 2021 |
| Docket Number | No. 18 C 1049,18 C 1049 |
| Parties | LaSHAWN EZELL, Plaintiff, v. CITY OF CHICAGO, et al., Defendants. |
| Court | U.S. District Court — Northern District of Illinois |
MEMORANDUM OPINION AND ORDER
The plaintiffs have moved to compel the City of Chicago to designate and produce Rule 30(b)(6) witnesses on a number of topics. For the following reasons, the plaintiffs' motion [Dkt. #254] is granted in part and denied in part.
The current discovery dispute dates back eight months, to September 21, 2020, when plaintiff issued a Notice of Rule 30(b)(6) Deposition to the City seeking testimony on the City's policies, practices, and training related to:
It also sought testimony on the CPD's ability to trace anonymous phone calls in December 1995, and the City's efforts to locate and produce files responsive to plaintiffs' document requests in this case. [Dkt. #254-1].
The City responded by email a week and a half later, "[i]n lieu of a formal objection now, and in the spirit of Local Rule 37.2." The main issue the City had with the deposition notice was that topics 1(a)-(g), asking for testimony about "policies, practice, and training" were clearly related to the plaintiff's Monell claims that Judge Kendall had bifurcated and stayed. [Dkt. #130]. The City wanted an explanation of the non-Monell relevance of those requests, because that was, it claimed, apparent. That was a valid request, but the remainder of the City's objections were unamplified, boilerplate - and thus of no validity or effect.1 The topic of tracing calls was, it was claimed, burdensome and disproportional to the needs of the case, and the topic of City's efforts to locate and produce files was burdensome, disproportionate, and uncalled for and unjustified. The City threw in a handful of other general "boilerplate" objections - vague, ambiguous, and overbroad - for good measure. [Dkt. #254-2].
Plaintiffs responded with an explanation that wasn't much of an explanation at all. They insisted each topic was "at the heart" of the fabrication of evidence, coercion of confessions, and Brady claims. Then, rather than explain, they summarized their claims:
Plaintiffs, most of whom were juveniles at the time of their arrests and convictions, were interrogated by individual defendants and participated in lineups conducted by the individual defendants; a composite sketch was created and used to identify and secure the conviction of Plaintiff Johnson; and Defendants have not been able to locate the investigative file relating to the murders that Plaintiffs were wrongfully convicted of committing.
In the end, the plaintiffs simply claimed they were "entitled" to testimony on the City's policies and practices, and the training and discipline that the individual defendants received, relating to the topics. [Dkt. #254-3]. As to the two remaining topics, the plaintiffs reminded the City that defendant, Cassidy, claimed that he received an anonymous phone call that led to the arrest of plaintiff, McCoy, and eventually, plaintiffs, Ezell, Johnson, and Styles, and the identity of that caller was never disclosed to plaintiffs prior to their criminal trials. Consequently, plaintiffs felt they were entitled to testimony regarding the abilities of the Chicago Police Department to obtain the allegedly anonymous caller's identity. As to the efforts the City has made to locate and produce files relating to the Elegant Auto Investigation, the plaintiff explained that it was a common Rule 30(b)(6) request. [Dkt. #254-3].
The parties went back and forth over the next few months, with the plaintiff, all the while, standing on its "entitlement" position and refusing the budge, while the City continued to demand a more detailed explanation in writing, but also proposed some less cumbersome alternatives, such as document requests or interrogatories. [Dkt. #254, at 7; Dkt. 254-4]. They apparently had two telephonic meetings on March 18 and 29, 2021, but plaintiff's motion to compel fails to comply with Local Rule 37.2 - which requires an itemization of "[w]here the consultation occurred, and the date, time and place of such conference, and the names of all parties participating therein." Nor does it provide any detail as to what was discussed. Thus, there is no way to tell whether the partiesnegotiated in "good faith" as the Rule demands. The plaintiffs' account in their motion suggests they did not. They simply dug in at their original position and refused to consider any alternatives. [Dkt.## 254, at 7; 260, at 15-16]. But that is not what the Local Rule demands or seeks to accomplish. See 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 Security & Training Servs., Inc., 2018 WL 1737518, at *3 (N.D. Ill. 2018); Infowhyse GmbH v. Fleetwood Grp., 2016 WL 4063168, at *1 (N.D. Ill. 2016).2 And, ironically, the steadfast refusal to negotiate or even consider alternatives to the far-reaching discovery proposed is a tactic plaintiffs' counsel has decried in the past. See, e.g., Bishop v. White, 2020 WL 6149567, at *3 (N.D. Ill. 2020).
In a recent hearing before Judge Ellis, in another case against the City, the Judge was surprised to find that the plaintiffs' Firm had named a staggering two-hundred and fifty Rule 404(b) witnesses and had refused to budge from that number. Judge Ellis, understandably, was having none of it:
I'm not sure why it is that the plaintiff believes it would be appropriate to list 250 [Rule] 404(b)witnesses. There's no way on God's green earth that I would ever allow anybody to put on 250 404(b) witnesses at trial. . . .
Johnson v. Guevara, No. 20-cv-4156, April 6, 2021, [Dkt. #63, at 3]. Counsel then explained that the Firm's position was that it simply would not limit the list voluntarily. A court order would be required! Johnson v. Guevara, 20-cv-4156, April 6, 2021, [Dkt. #63, at 3-4]. That manifested a disregard of Local Rule 37.2. Judge Ellis understandably concluded that there ought to have been no need for a court order on such a matter, nor the resulting waste of judicial resources. She felt counsel ought to have pared the list down voluntarily and, more importantly, rationally. "That's howlitigation should work." Johnson v. Guevara, 20-cv-4156, April 6, 2021, [Dkt. #63, at 5]. See also, Prince v. Kato, 18-cv-2952, May 9, 2019, [Dkt. #113, at 4, 9] where magistrate judge Harjani said: Unfortunately, the same philosophy that ignores Local Rule 37.2 is apparently also at work here. Despite having lost on the issue of bifurcation, the plaintiff seemingly has no intention of giving up Monell discovery regarding City policies, practices, and training. More than that, the plaintiffs want that discovery in the most burdensome and expensive form possible, which, of course, cuts against the whole rationale for bifurcation - and against the very philosophy underlying all the Rules of Federal Civil Procedure. See Rule 1. It is well to bear in mind that discovery is not a game with a prize going to the most aggressive or adroit player.
The City has produced over 1600 pages of the CPD written directives, standard operating procedures, and training materials from 1995 that provide the information plaintiffs claim they need from Rule 30(b)(6) witnesses. The individual defendant officers' training records have also been produced. Plaintiffs have deposed both defendant and non-defendant officers at length about CPD's polices, practices, and training. Two other such depositions are in the offing. Additionally, the City has proposed alternate avenues for additional discovery which the plaintiffs have refused to consider. Instead, the plaintiffs will not be satisfied without Rule 30(b)(6) testimony because, they insist, they are "legally entitled" to it. But that means locating, preparing and producing witnesses to testify about policies, practices, and procedures from 1995. The witness has to study the nearly 30-year-old materials - materials the plaintiffs have received in discovery or have turned down during Local Rule37.2 negotiations - interview witnesses, and then be prepared for deposition. It's very time-consuming and very costly. And even more importantly, it is also unnecessary and, out of proportion with the needs of a bifurcated case.
Of course, I am not unaware of the nature of this case and the significance of the issues at stake. But that does not give counsel for any party in any case carte blanche to ignore the Rules governing all other civil cases and insist that their case be accorded special treatment, with the limits on discovery being decided by their demands and conducted under rules they decree because of the importance they deem should be accorded their case. "Parties are entitled to a reasonable opportunity to investigate the facts - and no more." Vakharia v. Swedish Covenant Hosp., 1994 WL 75055, at *2 (N.D. Ill. 1994).3 Thus, in all cases, proportionality must play a significant role. Put another way, overreaching by a party seeking discovery is no virtue and should be consciously...
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