ILLINOIS LEAGUE OF ADVOCATES FOR THE DEVELOPMENTALLY DISABLED, et al. Plaintiffs, v. ILLINOIS DEPT. OF HUMAN SERVICES, et al. Defendants Case No. 13 C 1300 United States District Court, N.D. Illinois, Eastern Division Filed July 18, 2013 Martin, Daniel G., United States Magistrate Judge ORDER *1 Plaintiff Illinois League of Advocates for the Developmentally Disabled's Emergency Motion for Sanctions [127] is denied. STATEMENT Plaintiff Illinois League of Advocates for the Developmentally Disabled, together with the other Plaintiffs in this case (collectively, “Plaintiffs”) have brought an emergency motion for sanctions against Defendants. Plaintiffs allege that Defendants have violated the Federal Rules of Civil Procedure in a variety of ways and seek, among other things, to bar Defendants from presenting any evidence at the hearing on Plaintiffs' motion for preliminary injunction. That hearing was scheduled to take place on July 23, 2013, but the District Court has now vacated that date and set a hearing to amend the parties' discovery schedule. On July 17, 2013, this Court denied in part Defendants' motion for a protective order and directed Defendants to produce a range of documents they had sought to shield from discovery. The parties filed a joint status report later that afternoon stating that they had complied with the Court's directive to meet and confer in a good faith effort to narrow some of the remaining discovery requests. The parties also indicated that they would seek to postpone the July 23 hearing before the District Court on Plaintiffs' motion for preliminary injunction. In light of these developments, Defendants request the Court to delay ruling on the instant motion. After careful consideration of this request, the Court finds that its ruling should be issued at this juncture. The parties' joint cooperation in the discovery process is admirable, and they are encouraged to continue to work between themselves to resolve all discovery disputes. The parties' cooperation would justify a delay in ruling on a motion to compel discovery. However, allegations of sanctionable behavior are far more serious. Plaintiffs have alleged widespread discovery abuses in this case. They claim that Defendants have been “working together to obstruct and sandbag” discovery by “dissembling, obfuscation, obstruction and [a] total disregard” of the Rules. Most importantly, they claim that one of Defendants' attorneys has engaged in sanctionable misconduct. The Court takes these allegations with the greatest seriousness, especially as they concern an attorney who practices in this District. Courts have the power to impose discovery sanctions either pursuant to Fed. R. Civ. P. 37(b)(2), which requires the violation of a court order, or under its own “inherent power to impose sanctions for the abuse of the judicial system[.]” Northington v. H & M Int'l, 2011 WL 663055, at *12 (N.D. Ill. Jan. 12, 2011). Serious sanctions require a finding of willfulness or bad faith. Maynard v. Nygren, 332 F.3d 462, 470-71 (7th Cir. 2003); see also Am. Nat'l Bank & Trust Co. v. Equitable Life Assur. Soc'y of the United States, 406 F.3d 867, 878 (7th Cir. 2005); Ropak Corp. v. Plastican, Inc., 2006 WL 2385297, at *3 (N.D. Ill. Aug. 15, 2006). Sanctions should always be proportionate to the offending conduct. United States v. Golden Elevator, Inc., 27 F.3d 301, 303 (7th Cir. 1994). *2 Plaintiffs first claim that Defendants produced certain emails without providing the documents that were attached to them. An exhibit to the motion shows that Plaintiffs cancelled depositions in light of the missing email attachments. This does not support a showing of willfulness or bad faith on the part of Defendants. The most immediate remedy for Defendants' failure to produce the emails was to file an emergency motion to compel, not an emergency motion for sanctions. Plaintiffs stated at the hearing that no time was available to do so in light of the fact that the injunction hearing was scheduled at that point for July 23, 2013. Given that Plaintiffs found time to file their sanctions motion and were able to respond to the pending protective order motion, the Court finds this reasoning unpersuasive. Moreover, Plaintiffs were aware that much of the evidence they claim Defendants wrongfully withheld was subject to the motion for protective order. Plaintiffs' exhibit suggests that the parties were less than clear with one another on the extent to which Defendants relied on that privilege. But the briefs before this Court argued the privilege extensively, and Plaintiffs have not presented any evidence that Defendants acted willfully or in bad faith in withholding documents pending a ruling on the privilege issue. The exhibit also suggests that Defendants believed the documents were not relevant. Relevance was also a central part of their argument in the motion for protective order. Similar reasoning applies to Plaintiffs' second allegation that Defendants failed to produce documents concerning the State of Illinois' plan to close the Murray Center. The parties' briefs on the protective order disputed whether these documents were shielded by the deliberative process privilege. The Court has now rejected that privilege claim. However, Plaintiffs should have been aware that Defendants had the right to withhold the requested documents pending the Court's decision. Plaintiffs also claim that Defendant Community Resource Alliance (“CRA”) was not cooperative in producing documents related to the Murray and Jacksonville Centers. In support, Plaintiffs cite a July 9, 2013 email from CRA's attorney Patrick Gunn. The email states that CRA would not be able to separate the Murray documents from the Jacksonville documents until the Court ruled on the pending motion for protective order. CRA also claimed that it needed some additional time to put its documents together. This is not a basis for granting the sanctions that Plaintiffs seek. The July 2013 email does indicate a less-than-cooperative spirit on the part of CRA, especially since discovery was never stayed pending resolution of the motion for protective order. However, foot dragging is not automatically sanctionable without more serious signs of discovery abuse. Litigants are frequently uncooperative. As before, the proper remedy was to file a motion to compel, or at least to address this issue with greater specificity in Plaintiffs' response to the motion for protective order. Had Plaintiffs done so, the Court would have had an opportunity to review the merits of CRA's reasons for non-production and to order that the documents be turned over. Plaintiffs' primary basis for seeking sanctions involves the behavior of Assistant Attorney General Thomas Ioppolo. Plaintiffs allege that Ioppolo violated the rules of discovery by obtaining the signature of Rita Winkeler, one of the Plaintiff-guardians in this case, to a HIPPA release “under false pretenses.” (Mot. at 5). Such releases are routinely used in cases where confidential medical records are involved. Ioppolo allegedly stated that he only needed the release in order to question the guardian at her deposition concerning her son's medical condition. Plaintiffs claim that Ioppolo then used the HIPPA release to wrongfully review the records of Ms. Winkeler's son, who is a resident at the Murray Center, and to observe him in that setting without permission. *3 Claiming that an attorney has acted under false pretenses is a serious charge of misconduct that should not be made lightly. The Standards for Professional Conduct in this Circuit state that attorneys will not “absent good cause, attribute bad motives or improper conduct to other counsel or bring the profession into disrepute by unfounded accusations of impropriety.” They also require that counsel “not seek court sanctions without first conducting a reasonable investigation and unless fully justified by the circumstances and necessary to protect [a] client's lawful interests.” Standards of Professional Conduct, Lawyers' Duties to Other Counsel, Nos. 4 & 5. At a minimum, these standards require a party seeking sanctions against an attorney for alleged misconduct to provide a plausible evidentiary basis for its claim. Plaintiffs have not supported their charge with any evidence. The misconduct claim rests on the HIPPA release that Ioppolo obtained, but Plaintiffs did not submit it as part of their motion. The claim also involves allegations of what Ioppolo said to Ms. Winkeler, but Plaintiffs have not presented an affidavit or sworn declaration by her on this critical issue. Without any concrete evidence to buttress their claims, Plaintiffs' allegations are essentially conclusory. The record provided by Defendants presents a very different picture. Ioppolo obtained the HIPPA signature of Ms. Winkeler at her deposition on July 10. He did so in the presence of one of Plaintiffs' attorneys, who stated on the record that the release form “authorizes the Murray Developmental Center to give certain HIPPA related private health information regarding Mark Winkeler.... We sign this with the understanding that this is being signed solely for the purpose of the litigation so that members of the Illinois Attorney General can get access to the records.” (Resp. at 10) (emphasis added). Plaintiffs' counsel further stipulated that any records obtained by the Attorney General's office “may be shared with other persons who are covered by the protective order” that has already been entered in this case. (Id.). This statement directly contradicts Plaintiffs' claim that Ioppolo did not have the authority to review Mark Winkeler's medical records at the Murray Center. Moreover, the HIPPA form itself states that Ms. Winkeler agreed to allow the Murray Center to release her son's medical records to the Attorney General's office for the purposes of the lawsuit. (Resp. at Ex. H). That is, of course, exactly what Plaintiffs allege took place. Plaintiffs' counsel stated at the hearing that Ioppolo represented to Ms. Winkeler that the release would only apply to records discussed at the deposition. However, Ms. Winkeler signed the release in the presence of counsel, who specifically stated that it extended beyond the narrow limits of the deposition. Ioppolo's sworn declaration, which is uncontroverted, also denies that he told Ms. Winkeler that the release would only apply to records discussed at the deposition. (Resp., Ex. J at ¶ 6). Plaintiffs claim along similar lines that Ioppolo improperly observed Mark Winkler at the Murray Center. In fact, Plaintiffs go even further in a July 12 email that they sent to Ioppolo. That communication accuses him of conducting “what is essentially discovery and an interview of my nonverbal client” during Ioppolo's visit to the Murray Center. (Mot. at Ex. 4). The record firmly contradicts this unusual statement. Ioppolo's declaration states that he visited two cottages at the Murray Center: In Elm, I did see Mark Winkeler, who I recognized from his picture on the Individual Support Plan which I first saw at Mrs. Winkeler's deposition. Mark was sitting on the floor by himself watching television in the day area. I did not speak to him (my understanding is that Mark is nonverbal) and I do not think he was aware of our presence. I did not “interview” him. I did not enter or see his bedroom. I took no photographs on the tour. *4 (Resp., Ex. J at ¶ 9). Ioppolo's sworn statement is undisputed. Together with the other evidentiary sources Defendants have submitted, it shows that Plaintiffs' allegations against Ioppolo lack any foundation in the record. The Emergency Motion for Sanctions is denied.