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DeFazio v. Hollister

March 27, 2009


The opinion of the court was delivered by: Gregory G. Hollows U.S. Magistrate Judge


Previously pending on this court's law and motion calendar for March 26, 2009, were plaintiff's ex parte application for reconsideration and clarification of this court's January 13, 2009 order, filed January 30, 2009*fn1 , and defendants' objections to physical production of various documents, filed March 9, 2009.

I. Plaintiffs' Request for Reconsideration/Clarification of January 13, 2009 Order (Dkt. #451) The complete terms of the summary order issued after telephone conference are as follows:

On January 12, 2009, the court conducted a telephone conference at the request of the parties pertaining to a discovery dispute outlined in statements filed on January 9, 2009. (Docket Nos. 440-442.) As a result of that conference, the court now issues the following summary order.

IT IS ORDERED that for the years 1974 through July 15, 1998, defendants shall produce for inspection corporate minutes only.

For the period from July 15, 1998 through the present, defendants shall permit inspection in Illinois by plaintiffs of documents assembled as described in defendants' statement.*fn2 Plaintiffs shall designate documents they propose to copy from both groups. If defendants do not agree to production (copying) of any of these documents subject to the operative protective order, they shall advise the court of those documents for which they resist copying.*fn3

No documents shall be filed in camera until ordered by the court.

The date for production (copying) of those documents, which defendants agree can be copied, shall be arranged between the parties.

Plaintiffs now seek reconsideration/clarification of that order in regard to the court's statement that defendants shall permit inspection by plaintiffs of documents assembled "as described in defendants' statement." Plaintiffs point out that defendants' statement did not include a description of the documents they intended to produce, but only four grainy photos and a short statement,

"Attached as Exhibit A hereto are four photographs taken of the files pertaining to the requested Board, Trustees and Corporate Deferred Benefits Committees meetings for the period from 1998 to present. From these files, defendants have culled a full banker's box of documents that defendants have committed to produce (in redacted form) in response to plaintiffs' requests."

Plaintiffs' request is based on an erroneous premise, i.e., that the court heard and adjudicated a discovery dispute on the record such that the resulting order needs clarification. In this district, in order to save parties time and resources, the magistrate judges have agreed to informally discuss potential discovery disputes if the parties so desire. However, the magistrate judge acts more in the capacity of an issue mediator and not as an adjudicator. The undersigned does not require the parties' participation in this informal process; rather it is the parties who ask the undersigned to become informally engaged. The parties are informed that in the event a mutual resolution cannot be forthcoming, a formal motion must be filed. While the undersigned will often indicate his tentative views to expedite a resolution, it is ultimately up to the parties to agree. There are times that the potential dispute is too complex for off-the-record informal discussions. If the parties believe that one or the other has not lived up to the agreement, the potential for the initiation of formal discovery dispute proceedings always exists (assuming sufficient time).

The parties in this case asked the undersigned to hear them out informally for a potential dispute involving a record request by plaintiffs. The above quoted order was the agreed to resolution of the parties. The fact that plaintiffs' counsel later had afterthoughts about the resolution, or wished to complain that what had been gathered was incomplete, or that some other not-requested document(s) now appears to be very germane, is not something which can be resolved via a request for reconsideration or clarification on an informal resolution. Plaintiffs' request is denied.

II. Defendants' Objections to Physical Production of Various Documents Inspected by Plaintiffs' Counsel (Dkt. # 465)

As set forth in the resolution order, the parties expressly left open the possibility that although plaintiffs were entitled to inspect every document, defendants could object to their copying. Implicit in that order, however, was the fact that the court could reach any disagreement about copying. Defendants are concerned that despite the existence of protective orders, plaintiffs' seeking to copy ...

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