AMBER HIRSCH, as administrator of the estate of decedent MARCUS MAYS, and on behalf of decedent's next of kin, Plaintiff, v. WILL COUNTY, et al., Defendants Case No. 19 CV 7398 United States District Court, N.D. Illinois, Eastern Division Filed: June 14, 2024 Appenteng, Jeannice W., United States Magistrate Judge ORDER *1 The Court held an in-person status hearing on June 12, 2024, and a telephonic status hearing on June 13, 2024 regarding discovery issues. For the reasons stated on the record, and as further set forth below, the Court orders the following. I. Outstanding Depositions Defendant Wellpath's (“Wellpath”) objection to presenting a Rule 30(b)(6) deponent is overruled. On July 15, 2024, Wellpath shall present a Rule 30(b)(6) witness or witnesses on the three topics plaintiff identified during the June 12, 2024 hearing. Plaintiff has leave to issue a subpoena for Briana Byrd's deposition. The Court ordered Wellpath to provide plaintiff with Ms. Byrd's last known address on the same day as the in-person hearing, June 12, 2024. On June 13, 2024, the parties represented that Ms. Byrd's deposition will occur on July 22, 2024 or July 23, 2024. If Ms. Byrd fails to appear for her deposition, the Court will set a hearing on a rule to show cause why she should not be held in contempt for failure to attend the deposition. The parties informed the Court that defendant Carmina Feliciano's deposition is scheduled for June 26, 2024, and the depositions for defendants Corina Shaw and Donna Petrauskis are scheduled for July 2, 2024. If any of these individuals fail to appear for their deposition, the Court will set a hearing on a rule to show cause why that individual should not be held in contempt for failure to attend the deposition. Plaintiff's objection to the deposition of Mr. Mays’ minor daughter, A.H., is overruled. By June 21, 2024, the parties shall meet and confer regarding the protocols that will be implemented during A.H.’s deposition given her status as a minor. By June 24, 2024, the parties shall file a joint status report, no more than two pages, setting forth the agreed-upon protocols. The parties may refer to 19-cv-4838, Dkt. 324 at 6-7; Dkt. 335, for minor-deposition procedural safeguards that the Court has previously permitted and approved. II. Written Discovery Wellpath's objection to plaintiff's interrogatory regarding the falsification of medication verification records is overruled. By June 19, 2024, Wellpath shall answer plaintiff's interrogatory. Regarding plaintiff's Local Rule 37.2 letter to Wellpath, plaintiff is granted leave to propound new discovery requests regarding the three new categories of documents identified in plaintiff's letter. Wellpath shall respond to plaintiff's discovery requests within one week of receiving those requests. III. Motion for reconsideration of the Court's May 2, 2024 and May 7, 2024 Orders & Inmate Medical Records As stated during the hearing, plaintiff's motion for reconsideration and clarification, Dkt. 484, is denied. “Motions for reconsideration serve a limited function: to correct manifest errors of law or fact or to present newly discovered evidence.” Caisse Nationale de Credit Agricole v. CBI Industries, Inc., 90 F.3d 1264, 1269 (7th Cir. 1996) (quoting Keene Corp. v. Int'l Fidelity Ins. Co., 561 F. Supp. 656, 665 (N.D. Ill. 1982)). Plaintiff's primary argument that “[r]econsideration is appropriate here because the Court's May 7th order widening a date range that Plaintiff had already agreed to narrow impedes Plaintiff's ability to prove her Monell claim” is not a valid basis for reconsideration. The Court was aware of plaintiff's arguments and position at the time of its May rulings. Plaintiff has neither demonstrated the Court's rulings were based on an error of law or fact nor presented new evidence requiring this Court to reconsider its rulings. The most appropriate vehicle for plaintiff's disagreement with the Court's rulings would have been an objection filed before the District Judge within 14 days of being served a copy of this Court's May 2, 2024 and May 7, 2024 orders. *2 Regarding plaintiff's request for clarification, Wellpath shall produce the medical files of inmates who had emergency room (“ER”) visits between June 2017 and November 2018, and as previously stated, all medical records produced by Wellpath shall be appropriately anonymized. See Dkt. 470. Wellpath's request for reconsideration of this Court's order that Wellpath “produce all medical files for detainees who died as a result of a medical condition in Wellpath jails in its Midwest region (Illinois, Indiana, Wisconsin, Michigan, Ohio, and Kentucky) between 2013 and 2018” is denied. Wellpath's assertion that “the issue on whether these medical records should be ordered was never properly before the Court” is incorrect. Dkt. 496 at 12. In the parties’ April 22, 2024 joint status report, Dkt. 466, plaintiff informed the Court of her position on the scope of production for medical files: “Plaintiff has proposed production of (1) all medical files for detainees brought to the ER between 2014 and 2018; and (2) 3 months of medical files from 2016, 2017 and 2018, with the months to be selected by [p]laintiff; and (3) medical files for detainees who died in Wellpath jails in its Midwest region between 2013-2018.” Dkt. 466 at 1. Plaintiff reiterated this proposal at the April 29, 2024 telephonic hearing when contemplating a method for selecting a sample of inmate medical records: “I'm concerned with ... Wellpath being able to decide what we get, and so the full production of the ER trips, all of the people that went to the ER between 2014 and 2018 ... and the full production of all the files for people who died, I think that if we had to live with those two things and some sort of sampling, be it a random or a judgment sampling, I think we can live with that.” Accordingly, the production of medical files for detainees who died in Wellpath jails in the Midwest region was before the Court for consideration. While it appears that the parties have not fully met and conferred on this issue, requiring such a conferral would be unproductive considering the history of the parties’ interactions and the proximity of the July 26, 2024 fact discovery deadline. Given the relevance of these medical files and this Court's “extremely broad discretion in controlling discovery,” Jones v. City of Elkhart, 737 F.3d 1107, 1115 (7th Cir. 2013), the Court's May 2, 2024 and May 7, 2024 orders stand. Regarding plaintiff's request for four additional months of inmate medical records, the Court orders these four months to be selected from the following date range: June 2017 – November 2018. The parties shall select these months randomly, using the same method in which they chose the first two months of inmate medical records. Wellpath is granted leave to file a motion for a protective order on the issue of cost-sharing in the production of the additional four months of inmate medical records. These records shall be produced prior to the close of fact discovery, July 26, 2024. IV. Sanctions and Recommendation Regarding Wellpath's Noncompliance On June 4, 2021, District Judge Thomas M. Durkin referred this case to then Magistrate Judge Jeffrey Cummings for discovery supervision, with authority to resolve all discovery motions and to modify all discovery deadlines. Dkt. 131, 132. On October 27, 2023, the undersigned, Magistrate Judge Appenteng, began presiding over this case. Over the past three years, “[p]laintiff's effort to obtain discovery from Wellpath has resulted in a protracted, energy draining battle” that has resulted in an enormous expenditure of the Court's and parties’ resources. Dkt. 376 at 2 (Judge Cummings’ Memorandum Opinion and Order granting in part plaintiff's petition for attorney's fees, awarding plaintiff $23,253.75 in fees). *3 Since inheriting this case, the undersigned has issued several discovery orders and set several discovery-related deadlines for Wellpath, few of which have been observed. Wellpath's most substantive noncompliance began after this Court's February 12, 2024 order, which directed Wellpath to begin rolling production of twelve categories of documents pursuant to plaintiff's 18th motion to compel. Dkt 432, 433. By March 8, 2024, Wellpath had produced nothing. Dkt. 437. On March 11, this Court reminded Wellpath that it must begin producing documents on a rolling basis, ordered Wellpath to complete this production by April 12, 2024, and admonished Wellpath regarding sanctions for noncompliance. Dkt. 440. By March 15, 2024—over one month after Wellpath was ordered to begin producing documents—it had produced only four unverified amended interrogatory responses. Dkt. 442. On March 22, 2024, the Court ordered Wellpath to produce one of two designated categories of financial documents. Dkt.447. On April 8, 2024, the Court held an in-person hearing where plaintiff represented that Wellpath had failed to produce these financial documents. Dkt 459. The Court then ordered these documents produced by April 15, 2024. Id. Plaintiff also informed the Court that Wellpath failed to comply with the Court's February 12, 2024 order regarding rolling productions, having produced no documents beyond the four unverified amended interrogatory responses produced almost one month prior. Id. Despite its minimal production, Wellpath assured the Court on the record that it would complete production of all documents by the April 12, 2024 deadline. See Dkt. 469 at 31 (The Court: “So we did order a hard deadline for this production to be complete, and that was April 12th, correct?” Wellpath counsel: “Correct, Judge, and we do expect to be on track to meet that deadline.”). Additionally, the Court resolved plaintiff's 19th motion to compel at this hearing, which resulted in Wellpath being ordered to produce several more categories of documents. Dkt. 459. On April 24, 2024, the Court held an in-person status hearing, where plaintiff informed the Court that Wellpath failed to produce the financial documents by April 15, 2024 as ordered. Dkt. 467. Plaintiff also informed the Court that Wellpath had made no productions related to plaintiff's 19th motion to compel, prompting the Court to order Wellpath to complete production by May 20, 2024. Id. Further, Wellpath admitted, despite its assurances, that it had failed to complete its productions related to plaintiff's 18th motion to compel by the April 12, 2024 deadline. Id. During the hearing the Court gave Wellpath's counsel multiple opportunities to provide any reasonable and satisfactory explanation for Wellpath's noncompliance. Wellpath offered none. Consequently, the Court ordered the following: Wellpath [shall] be sanctioned in the amount of $500 per day, beginning [April 13, 2024], for each day that it fails to complete its Monell-related production .... After [April 26, 2024], the sanction shall increase to $1,000 per day if Wellpath has still not completed its Monell-related production.” These sanctions will be made payable to plaintiff and will continue until such time as Wellpath completes its production. Dkt. 467. On May 13, 2024, one month after the Court's deadline, Wellpath had still yet to complete its production related to plaintiff's 18th motion to compel. Dkt. 479. Accordingly, the Court increased Wellpath's daily sanction to $1,500, beginning on May 17, 2024. Id. On May 22, 2024, the Court held a telephonic status hearing in which plaintiff reported that Wellpath's production related to plaintiff's 18th motion to compel was still incomplete, and that Wellpath was still failing to produce documents on a rolling basis. Dkt. 486. Wellpath confirmed this defiance on the record, stating “we're no longer doing rolling production. We just want to get everything in one chunk since we are already accumulating sanctions anyway.” Dkt. 490 at 13. Also, during this hearing, Wellpath admitted that it failed to complete its production related to plaintiff's 19th motion to compel by the May 20, 2024 deadline. Dkt 486. *4 On May 24, 2024, the Court issued an order (1) directing Wellpath to pay plaintiff the $36,000 it had thus far incurred in sanctions by June 3, 2024;[1] (2) increasing Wellpath's daily sanction to $2,000 on May 31, 2024, with that amount to increase by $500 every 14 days, Dkt. 486 (because Wellpath failed to establish any good cause); (3) denying Wellpath's request for an extension relating to plaintiff's 19th motion to compel, Dkt. 486; and (4) imposing sanctions: Wellpath [shall] be sanctioned in the amount of $1,000 per day, beginning [May 21, 2024], for each day that it fails to complete production related to plaintiff's 19th motion to compel. This daily sanction shall also increase by $500 every 14 days. Accordingly, on [June 4, 2024], Wellpath's daily sanction related to plaintiff's 19th motion to compel shall be increased to $1,500. These increasing sanctions shall continue to be assessed against Wellpath daily until Wellpath certifies to the Court that it has provided all the responsive documents related to plaintiff's 19th motion to compel that are in its possession, custody, and control. Dkt. 486. The Court also noted Wellpath's minimal productions since February 12, 2024, and its open defiance of the Court's order for rolling production, stating that “the Court is considering the recommendation of Rule 37(b)(2)(A) sanctions to the District Judge, up to and including the entry of default.” Dkt. 486. Despite this Court's several efforts to bring Wellpath into compliance with its discovery orders, Wellpath remains recalcitrant. Since the Court's May 24, 2024 order increasing sanctions and contemplating a recommendation of dispositive sanctions, Wellpath has yet to complete its productions related to plaintiff's 18th and 19th motions to compel, and has now incurred a total of $105,000 in sanctions,[2] a dollar amount that continues to grow by the day. Federal Rule of Civil Procedure 37(b)(2)(A) states “[i]f a party ... fails to obey an order to provide or permit discovery ... the court where the action is pending may issue further just orders,” up to and including “rendering a default judgment against the disobedient party.” Fed. R. Civ. P. 37(b)(2)(A). Such a severe sanction “is appropriate only where there is a clear record of delay or contumacious conduct, where other less drastic sanctions have proven unavailing, or where a party displays willfulness, bad faith, or fault.” Domanus v. Lewicki, 742 F.3d 290, 301 (7th Cir. 2014) (citations omitted) (internal quotation marks omitted). “Such behavior can be demonstrated by a pattern of non-compliance with court discovery orders.” Fed. Trade Comm'n v. 6654916 Canada, Inc., No. 09 C 3159, 2010 WL 2925520, at *2 (N.D. Ill. June 2, 2010); see also Newman v. Metro. Pier & Exposition Auth., 962 F.2d 589, 591 (7th Cir. 1992) (“If the failure is inadvertent [or] isolated ... default (if by the defendant) would be an excessively severe sanction. But as soon as a pattern of noncompliance with the court's discovery orders emerges, the judge is entitled to act with swift decision.”) Wellpath's pattern of noncompliance has been demonstrated above, and this Court finds this pattern to evince Wellpath's willfulness and bad faith in consistently failing to follow this Court's discovery orders. With the July 26, 2024 deadline for fact discovery fast approaching, along with crucial production deadlines relating to inmate medical records, the Court finds it appropriate to recommend that the District Judge consider issuing a rule to show cause as to why default should not be entered against Wellpath, or any other appropriate orders. V. Conclusion *5 By June 24, 2024, the parties shall file a joint status report setting forth the agreed-upon safeguards for A.H.’s deposition and any outstanding disputes in list form, without argument. In-person status hearing set for June 27, 2024, at 10:00 a.m. Going forward, defendant Will County may appear for these periodic discovery status hearings telephonically unless it is specifically involved in a dispute that requires the Court's attention. So Ordered. Footnotes [1] Wellpath eventually made this payment to plaintiff on June 11, 2024, eight days after the deadline. [2] Plaintiff's request that the Court order Wellpath to pay what it has incurred in sanctions since May 24, 2024 is taken under advisement.