JAMES BOYD, Plaintiff, v. LAZER SPOT, INC., Defendant No. 19 C 8173 United States District Court, N.D. Illinois, Eastern Division Filed: March 30, 2022 Counsel James B. Zouras, Anna Ceragioli, Haley Renee Jenkins, Ryan F. Stephan, Stephan Zouras, LLP, Chicago, IL, Megan Shannon, Fegan Scott LLC, Chicago, IL, for Plaintiff. Eric L. Samore, John C. Ochoa, Kathryn Victoria Long, Michael Matthew Chang, SmithAmundsen LLC, Chicago, IL, for Defendant. Valdez, Maria, United States Magistrate Judge ORDER *1 This matter is before the Court on Plaintiff's Motion to Compel Defendant's Answers to Interrogatories, the Production of Documents and the Appearance of Its Representative for Deposition Under Rule 37(a)(3)(B) [Doc. No. 54]. For the reasons that follow, the motion is granted in part. BACKGROUND The complaint alleges violations of the Biometric Information Privacy Act (“BIPA”), 740 Ill. Comp. Stat. § 14/1 et seq., on behalf of a purported class. In March 2020, the District Judge stayed discovery until April 28, 2020, and thereafter, the matter was subject to various general orders extending deadlines due to the pandemic. Then on August 11, 2020, Defendant filed a motion to stay the case pending the resolution of Tims v. Black Horse Carriers, Inc., No. 2019-CH-03522 (Ill. Cir. Ct. Feb. 26, 2020), a case before the state appellate court involving the application statute of limitations period for BIPA actions. Two months later, the District Judge denied the stay motion, and shortly after, she entered a scheduling order setting the fact discovery deadline to July 31, 2021. Plaintiff served interrogatories and document requests on November 17, 2020. By agreement, the time for answering was extended to December 29, 2020 but Defendant missed that deadline. On January 4, 2021, defendant promised to serve its written discovery responses no later than January 31, 2021, and Plaintiff agreed to the second extension. Instead of responding to the discovery requests, Defendant again moved on February 2, 2021 to stay the proceedings until the resolution of a different BIPA case before the Illinois Supreme Court. This motion was granted on February 17, 2021, and the scheduling order was vacated. The stay was lifted a year later, on February 16, 2022, following the Illinois Supreme Court's decision in the relevant case. The following day, Plaintiff sent Defendant an email reminding it of the outstanding discovery requests and asking for responses no later than February 25, 2022; Plaintiff also requested available dates for the deposition of witness Deanna Fausett in the last two weeks of March. Defendant did not answer the email but instead filed a third motion to stay on February 18, 2022. This motion was again based on Tims, which was now set for resolution before the Illinois Supreme Court. The District Judge did not find that the state proceedings warranted a stay and denied the motion on February 23, 2022. Plaintiff filed the present motion to compel on February 28, 2022, not having received any discovery responses or discovery-related communications from Defendant since the stay was lifted. DISCUSSION A party may move under Federal Rule of Civil Procedure 37 for an order compelling a discovery response if a party fails to produce documents as requested under Rule 34. Fed. R. Civ. P. 37(a)(3)(B)(iv). Although Defendant did produce a number of documents on March 16, 2022, it does not dispute that production is not complete. Nevertheless, Defendant maintains that the motion should be denied for failing to comply with Local Rule 37.2's meet and confer requirement. *2 According to Defendant, Plaintiff's counsel did not return numerous phone calls relating to the timing of discovery responses and potential settlement. The email chain attached as an exhibit to Defendant's brief, however, does not support the claim that Defendant tried to work out a revised discovery schedule. On February 23, 2022 at 10:54 a.m., Defendant asked if Plaintiff would agree to private mediation or a settlement conference, and Plaintiff responded a few minutes later that “[u]ntil defendant makes a serious offer, we do not agree. We look forward to receiving defendant's responses to our outstanding discovery no later than this Friday.” (Def.’s Resp., Ex. 1 at 1.) Defense counsel followed up immediately, saying “I have called you twice to discuss settlement. I also sent an email for you to call me. Please call me.” (Id.) Defendant faults Plaintiff for failing to call counsel back before filing the present motion and argues that it can be denied on that basis. The Court concludes that Plaintiff sufficiently complied with Local Rule 37.2, and thus the motion may be addressed on its merits. Following Plaintiff's inquiry about the outstanding discovery responses on February 23, defense counsel did not address the discovery issue at all, instead redirecting the discussion to the possibility of a settlement conference.[1] Local Rule 37.2 did not obligate Plaintiff to call as defense counsel requested, because the stated purpose of the call was settlement, not discovery. Given Defendant's history of delay and deflecting to other litigation matters without notice, it was reasonable for Plaintiff assume from Defendant's silence about discovery that production would not be forthcoming, and the parties were at an impasse. Although Defendant has provided some discovery responses, it states that it will continue to supplement as its investigation continues. Defendant has not raised objections to the requests, which is appropriate, as any such objections have been waived. See Fed. R. Civ. P. 34(b)(2)(C) (providing the method by which a party must object to a document request); Fed. R. Civ. P. 33(b)(4) (“Any ground not stated in a timely objection is waived unless the court, for good cause, excuses the failure.”); see also Laborers’ Pen. Fund v. Midwest Brickpaving, Inc., No. 18 C 7729, 2020 WL 9607993, at *2 n.2 (N.D. Ill. Sept. 14, 2020) (explaining that in the absence of good cause, untimely objections to Rule 34 document requests are waived, consistent with Rule 33). Defendant must fully respond to all written discovery requests no later than seven days from the date of this order. As for the issue of the timing of the individual and/or corporate representative deposition(s) of Deanna Fausett, the Court will not involve itself in the minutiae of scheduling. The parties are to work together cooperatively to schedule all depositions as soon as possible. The Court is not persuaded by Defendant's concern that because Plaintiff has not responded to discovery, the Rule 30(b)(6) deposition is premature and may need to be supplemented. Plaintiff, the party seeking the deposition, will only have one opportunity to depose his witnesses, absent good cause. The fact that Defendant may not have all the information it needs to question the same witness(es) during the same session does not provide a basis for delaying Plaintiff's depositions. Nevertheless, the parties are strongly encouraged to work together to minimize cost, time, and the burden on witnesses. The Court will set a discovery schedule mimicking the schedule set by the District Judge prior to the stay,[2] which will provide ample time for the parties to schedule and complete all oral discovery. CONCLUSION *3 For the foregoing reasons, Plaintiff's Motion to Compel Defendant's Answers to Interrogatories, the Production of Documents and the Appearance of Its Representative for Deposition Under Rule 37(a)(3)(B) [Doc. No. 54] is granted in part. Defendant must provide answers to all outstanding discovery requests no later than April 6, 2022. By agreement, Plaintiff will also respond to written discovery by April 6, 2022. Amendments to pleadings or actions to join other parties must be filed by May 26, 2022, and the fact discovery deadline is July 26, 2022. Plaintiff's experts are to be disclosed by August 26, 2022 and deposed by September 26, 2022. Defendant's experts are to be disclosed by October 26, 2022 and deposed by November 28, 2022. All expert discovery, including any rebuttal experts, will close by January 26, 2023. Plaintiff's motion for class certification must be filed by August 26, 2022. SO ORDERED. ENTERED: Footnotes [1] The Court strongly encourages parties to evaluate a case for the possibility of settlement at all stages of the litigation. Plaintiff has asked for an offer of settlement, and the parties may choose to discuss settlement now, before further resources are spent on discovery. [2] The original scheduling order, entered on October 27, 2020, provided that amendments were to be filed by May 30, 2021, fact discovery would close by July 31, 2021, and expert discovery followed thereafter. The stay in the case was entered 113 days later, on February 17, 2021, and was lifted on February 16, 2022. The new deadlines will reflect the same general timeline as the original order, beginning on February 16, 2022, less the 113 days that elapsed before entry of the stay. For example, the fact discovery deadline will be July 26, 2022, which is nine months from February 16, minus 113 days.