SONRAI SYSTEMS, LLC, Plaintiff, v. ANTHONY M. ROMANO, GEOTAB, INC., and HEIL CO., Defendants No. 16 CV 3371 United States District Court, N.D. Illinois, Eastern Division, EASTERN DIVISION Filed: October 06, 2022 Cummings, Jeffrey I., United States Magistrate Judge ORDER *1 The Court has reviewed Sonrai's motion to compel Romano to turnover and provide e-mail access to aceseq@gmail.com, (Dckt. #542), and defendant Romano's response, (Dckt. #545). Sonrai seeks an order compelling defendant Romano to disclose the password to an email account that Sonrai describes as its “Business Account,” and which Romano has purportedly blocked access to since his resignation in January 2016. For the reasons that follow, Sonrai's motion to compel (Dckt. #542) is denied. First, Sonrai improperly brings its motion to compel under Rule 37. Under that Rule, a party seeking discovery may move for an order to (1) compel disclosure (“if a party fails to make a disclosure required by Rule 26(a)”); or (2) to compel a discovery response (if a party fails to properly respond to a discovery request under Rules 30-34). Fed.R.Civ.P. 37(a)(3). Here, as Romano points out, Sonrai has not asserted that Romano's prior Rule 26(a) disclosures were somehow deficient or cited to any prior discovery requests seeking access to the Business Account to which Romano failed to respond.[1] Moreover, by its own admission, Sonrai is not seeking access to the Business Account for any purpose related to the claims in this case. See Fed.R.Civ.P. 26(b)(1) (allowing discovery regarding any “nonprivileged matter that is relevant to any party's claim or defense”). Instead, Sonrai seeks access to the Business Account so it “can pursue current and near-future business endeavors ....” (Dckt. #542 at 4; see also Dckt. #545-1 (4/13/22 e-mail from pl.’s counsel to def.’s counsel – “Sonrai believes that there is some information in the account that will be helpful with respect to some current and potentially future patents and products.”)). Accordingly, Sonrai's request to compel Romano to turn over the password to the Business Account[2] is improper under Rule 37 because Sonrai never requested this information from Romano as part of a discovery request and the information in the Business Account is not – in any event – relevant under Rule 26(b)(1) because it does not pertain to the parties’ claims or defenses. *2 Second, even assuming, arguendo, that Sonrai did request access to the Business Account in its prior discovery requests, fact discovery in this matter closed long ago on February 26, 2021. (Dckt. #468 at 7). “Although there are no timing boundaries outlined in Rule 37, in this [C]ircuit ‘motions to compel filed after the close of discovery are generally deemed untimely.’ ” Africano v. Atrium Med. Corp., No. 17 CV 7238, 2019 WL 10891868, at *1 (N.D.Ill. July 3, 2019), quoting Fast Food Gourmet, Inc. v. Little Lady Foods, Inc., No. 05 CV 6022, 2007 WL 1673563, at *2 (N.D.Ill. June 8, 2007) (collecting cases). Furthermore, although courts can exercise their discretion to excuse an otherwise untimely motion to compel if a “reasonable and persuasive justification of its untimeliness” is made, Africano v. Atrium Med. Corp., 2019 WL 10891868, at *1 (internal quotation marks omitted), Sonrai has failed to offer such a justification here. Consequently, even if Sonrai had properly brought its motion to compel under Rule 37, the Court would exercise its discretion to deny the motion as untimely. See, e.g., Rose v. United States, No. 18 C 2927, 2020 WL 8258738, at *1 (N.D.Ill. Sept. 24, 2020) (denying motion to compel as untimely where “Plaintiff has not offered any explanation for filing the motion to compel over a year after fact discovery closed”); see Packman v. Chicago Tribune Co., 267 F.3d 628, 647 (7th Cir. 2001) (district court did not abuse its discretion by denying as untimely a motion to compel filed after the discovery cutoff). Finally, the parties dispute whether the Business Account belongs to both Sonrai and ACES – as the companies’ owner Christopher Flood avers in his declaration (Dckt. #542-1 at 3) – or whether the account belongs only to ACES and not to Sonrai, as Romano asserts. (Dckt. #545 at 5-6 & n.2). If the Business Account belongs to ACES, Sonrai has no standing to seek the return of the password information because ACES and Sonrai are separate legal entities as the Court has previously recognized and ACES is no longer a party to this case. (See Dckt. #60 (3/17/17 transcript) at 8, 9-10, 28-29). Furthermore, even if the Business Account is jointly owned Sonrai and ACES, Sonrai provides no support for its proposition that a Court has the authority to compel a party to produce a password for an e-mail account owned in part by a non-party, particularly where the request does not relate to the claims and defenses before the Court. For all of the above reasons, Sonrai's motion to compel [542] is denied.[3] Footnotes [1] Sonrai attaches the declaration of its owner Christopher Flood, (Dckt. #542-1), who contends that Sonrai's prior counsel “requested full access to this account in 2017,” but that the Court incorrectly understood this to be Sonrai's personal account at the time and denied access. (See Dckt. #121 at 5 (requesting access to three accounts, including “two through gmail and another with an ‘@aceseq.com’ address”); Dckt. #142 at 3 (Magistrate Judge Mason denying full access to Romano's “three personal email accounts”)). Nonetheless, in the instant motion, Sonrai concedes that the previous motion to compel did not specifically address the acceseq@gmail.com Business Account at issue here. (Dckt. #542 at 6, n.3). [2] In this regard, this case is distinguishable from Bierk v. Tango Mobile, LLC, No. 19 C 5167, 2021 WL 1088272 (N.D.Ill. Mar. 22, 2021), cited by Sonrai. There, the Court ordered a party to provide the password to his cellphone (or submit it for a forensic exam) for the discovery of communications relevant to the claims in the case. Again, here, Sonrai does not seek access to the account for communications or documents relevant to the claims or defenses in this litigation. [3] Nothing in this ruling should be interpreted as expressing the Court's condonation of Romano's actions with respect to the Business Account. Regardless of whether Sonrai or ACES (or both) own the Business Account, it is clear that Romano does not own it and that he gained access to the account only by virtue of his employment with the companies. (Dckt. #542-1 at 2-3). Moreover, Romano, pointedly, neither admits nor denies that he currently has access to or possession of the Business Account (Dckt. #545 at 5 n.1), which leaves open the possibility that he does have access to it. Sonrai and/or ACES are of course free to pursue other legal remedies against Romano with respect to the Business Account. This ruling stands for the proposition that Sonrai's effort to regain information regarding the Business Account via a Rule 37 motion to compel is an ineffectual way of proceeding for the reasons stated above.