Saleh v. Pfister
| Decision Date | 01 February 2021 |
| Docket Number | No. 18 C 1812,18 C 1812 |
| Parties | ABDEL JABER SALEH, Plaintiff, v. RANDY PFISTER, et al., Defendants. |
| Court | U.S. District Court — Northern District of Illinois |
MEMORANDUM OPINION AND ORDER
This case is about a prison inmate allegedly being forced to choose between a shopping trip to the prison commissary and a Friday Muslim prayer service. It is in its third version. [Dkt. ## 7, 55, 107]. It has consumed over two years of discovery. It has become a poster child for the concept of "proportionality" under Fed.R.Civ.P. 26(b)(1). Over more than two years of discovery, plaintiff has served seven sets of written discovery requests, conducted twelve depositions, and received over 1,700 pages of documents, a portion of which came from two separate ESI searches. He has received the benefit of judicial intervention to gain discovery, when warranted, on his behalf on more than one occasion. But plaintiff has grown greedy in the wake of that and his appetite for discovery that goes beyond even the peripheries of this case has increased since the filing of his second amended complaint. [Dkt. #107]. The Defendants have filed a Motion for the Entry of a Protective Order. As explained below, the motion [Dkt. #141] is granted.
While there is a lot contained in the parties' submissions, as can best be gleaned from them here is what plaintiff is demanding and what the defendants have provided: 1. All grievances and grievance responses submitted by all inmates at Stateville from 2015 to present,1 concerning allegations of unequal treatment of, or discrimination against any Muslim or Muslims. Defendant performed two manual searches to locate any such grievances filed by other inmates: (1) a manual search through the master files of specific inmates on a list provided by plaintiff, and (2) a manual search through the grievances on file with the Administrative Review Board ("ARB") based on a list generated with certain search criteria. These searches were conducted by four different IDOC correctional facilities, as well as the ARB. After completion of these searches, defendants produced all such grievances that could be located from September 1, 2017 to the present. Plaintiff wants five years of grievances and additional manual searches using different search terms.
2. All documents related to, concerning or reflecting disciplinary actions, performance appraisals or reviews of defendants, Dethrow and Pfister, whether or not they have to do with the plaintiff, his grievances, similar grievances. Defendants have certified that "no 'disciplinary actions' were rendered as a result of the incidents alleged in Plaintiff's Second Amended Complaint, nor were the incidents alleged in Plaintiff's Second Amended Complaint the subject of any 'performance appraisals' or 'reviews' of" either Defendant."
3. ESI Searches. Defendants conducted an ESI Search for communications related to the September 8, 2017 commissary incident, using the custodians, Dethrow, Pfister, Sherwin Miles, and David Gomez, and using the terms "Saleh", "Muslim", and plaintiff's inmate number. Documents were produced on September 4, 20202. On December 4th, eleven days before the closeof discovery, plaintiff demanded that defendants run nine additional custodian ESI searches. Defendants also performed ESI searches regarding the grievances going back in time. None of the named defendants were involved in the incidents alleged in those old grievances. The defendants searched grievances from May 1, 2015 to December 31, 2016, because the background allegations in Plaintiff's third Complaint cover May 2015 to August 2016. But, plaintiff demands that the search go from May 2015 all the way through to the present day. In short, plaintiff has been given a lot, but wants a lot more.
Of course, courts have wide discretion with respect to discovery matters like this one. See Thermal Design, Inc. v. Am. Soc'y of Heating, Refrigerating & Air-Conditioning Eng'rs., Inc., 755 F.3d 832, 839 (7th Cir. 2014); Jones v. City of Elkhart, Ind., 737 F.3d 1107, 1115 (7th Cir. 2013); GCIU-Employer Retirement Fund v. Goldfarb Corp., 565 F.3d 1018, 1026 (7th Cir. 2009). Discretion denotes the absence of hard and fast rules. Langnes v. Green, 282 U.S. 531, 541 (1931); Rogers v. Loether, 467 F.2d 1110, 1111-12 (7th Cir. 1972)(Stevens, J.). Most often, there are no right or wrong answers, because discretion connotes a range, not a point. Compare United States v. Boyd, 55 F.3d 239 (7th Cir. 1995) with United States v. Williams, 81 F.3d 1434 (7th Cir. 1996). Indeed, on a virtually identical set of facts, two decision makers can arrive at opposite conclusions, both of which can constitute appropriate exercises of discretion and both be affirmed on appeal. Mejia v. Cook County, Ill., 650 F.3d 631, 635 (7th Cir. 2011); United States. v. Banks, 546 F.3d 507, 508 (7th Cir. 2008). Cf. United States v. Bullion, 466 F.3d 574, 577 (7th Cir. 2006)(Posner, J.)("The striking of a balance of uncertainties can rarely be deemed unreasonable...."); McCleskey v. Kemp, 753 F.2d 877, 891 (11th Cir. 1985), aff'd, McCleskey v. Kemp, 481 U.S. 279, 289-290 (1987); Elliot v. Mission Trust Services, LLC, 2015 WL 1567901, 4 (N.D. Ill. 2015). Indeed, a party can onlyoverturn a discovery ruling where there has been an abuse of discretion, which can be found only when no reasonable person could agree with the district court's decision. Adams v. City of Indianapolis, 742 F.3d 720, 727 (7th Cir. 2014); Cincinnati Life Ins. Co. v. Beyrer, 722 F.3d 939, 953 (7th Cir. 2013).
Discovery sought must not only be relevant, but it must be "proportional" to the needs of the case, "considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit." Rule 26(b)(1), Federal Rules of Civil Procedure. See also, Buonavolanto v. LG Chem, Ltd., 2019 WL 8301068, at *2 (N.D. Ill. 2019);2 Motorola Sols., Inc. v. Hytera Commc'ns Corp., 365 F. Supp. 3d 916, 924 (N.D. Ill. 2019). The 2015 amendments to Rule 26 emphasize, "[t]he parties and the court have a collective responsibility to consider the proportionality of all discovery and consider it in resolving discovery disputes." Fed. R. Civ. P. 26, Advis. Comm. Notes for 2015 Amendments (emphasis added); Buonavolanto, 2019 WL 8301068, at *2.
Proportionality, like other concepts, requires a common sense and experiential assessment.See, e.g., BankDirect Capital Fin., LLC v. Capital Premium Fin., Inc., 326 F.R.D. 171, 175 (N.D. Ill. 2018). Indeed, Chief Justice Roberts' 2015 Year-End Report on the Federal Judiciary indicates that the addition of proportionality to Rule 26(b) "crystalizes the concept of reasonable limits on discovery through increased reliance on the common-sense concept of proportionality." Id. The Chief Justice also stressed that "[t]he key here is careful and realistic assessment of actual need" that may "require the active involvement of ... the federal judge to guide decisions respecting the scope of discovery." United States ex rel. Customs Fraud Investigations, LLC. v. Victaulic Co., 839 F.3d 242, 259 (3rd Cir. 2016).
The present state of discovery in this case and the current demand by the plaintiff, present a perfect case for the application of proportionality - especially when one considers the amount of discovery produced, and adds to that the amount of discovery plaintiff continues to demand - not to mention how far that discovery strays from the incident charged in the Complaint - and weighs that against allegedly being forced to choose between a prayer service or a commissary trip. The scale of proportionality collapses under the weight of plaintiff's unceasing demands. The plaintiff's demands are even more extravagant and improper when viewed through the lens of Judge Coleman's ruling dismissing portions of plaintiff's Second Amended Complaint with prejudice.3
The claimed right at stake here - freedom of religion - is significant, and, in view of that,plaintiff has been given substantial leeway in discovery over the previous two years. But there is the "right," and there is the incident that is being litigated as emblematic and infringing of that right. That incident does not allow plaintiff to enjoy unfettered discovery that strays far from the complained of incident, and which, if allowed, would violate basic concepts of proportionality. The leeway that has been accorded to plaintiff's discovery demands thus far cannot be allowed to persist given the far-reaching and unbridled requests now at issue.
Fact discovery closed on December 15th [Dkt.# 115], but plaintiff ramped up his demands late in discovery. Each time reasonable searches and reasonable productions were made, plaintiff demanded more. Perhaps the court has had a hand in this, as it has taken a somewhat lenient stance given the significance of the right at stake. But "enough is enough." Williams v. Shinseki, 2010 WL 1274233, 4 (7th Cir. 2010). When what is left of plaintiff's current Complaint is scrutinized, common sense - which always has a role to play, United States v Montoya De Hernandez, 473 U.S. 531, 542 (1985), and proportionality dictate that the leniency afforded the plaintiff up to now, within the court's discretion, should come to an end. Given the incident that forms the basis of plaintiff's Complaint, his allegations regarding it - and when he came up with them - and the applicable law, plaintiff has had ample discovery to prove his case, if it turns out that he has one. As Judge Moran succinctly put it, "[p]arties 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).
The plaintiff in this case - which is...
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