United States District Court, W.D. Wisconsin
MARY HALEY and MICHAEL HALEY, LESLIE BANKS and JAMES HAL BANKS, ANNIE BUINEWICZ and BRIAN BUINEWICZ, TERRANCE McIVER and JEAN ANN McIVER, SUSAN SENYK and CHRISTIAN SENYK, MATTHEW DELLER and RENEE DELLER, PATRICIA GROOME, GARY SAMUELS and MARIE LOHR, on behalf of themselves and others similarly situated, Plaintiffs
KOLBE & KOLBE MILLWORK CO., INC., Defendant, and FIREMAN’S FUND INSURANCE COMPANY and UNITED STATES FIRE INSURANCE COMPANY, Intervenor Defendants.
OPINION AND ORDER
BARBARA B. CRABB DISTRICT JUDGE
Two motions are before the court. Plaintiffs Mary Haley, Michael Haley, Leslie Banks, James Hal Banks, Annie Buinewicz, Brian Buinewicz, Terrance McIver, Jean McIver, Susan Senyk, Christian Senyk, Matthew Deller, Renee Deller, Patricia Groome, Gary Samuels and Marie Lohr are seeking review by this court of United States Magistrate Judge Stephen Crocker’s decision denying their motion to reopen discovery. They ask the court to reverse the magistrate judge’s decision and impose sanctions against defendant Kolbe & Kolbe Millwork Co., Inc. Defendant wants the court to strike the declaration of Joel Wolf, one of plaintiffs’ expert witnesses, on the ground that it was filed in violation of the preliminary pretrial conference order.
Plaintiffs’s appeal will be denied because they failed to show that the magistrate judge’s decision was clearly erroneous or contrary to law or that this court is required to apply a higher standard of review to the decision. Defendant’s motion will be granted because they have shown that Wolf’s late declaration violates this court’s preliminary pretrial conference order.
A. Plaintiff’s Motion
Plaintiffs want the court not only to reopen discovery but to order defendant to (1) produce specific additional discovery in the form of a Rule 30(b)(6) deposition of defendant; (2) give plaintiffs the opportunity to depose certain employees of defendant; (3) permit plaintiffs’ expert witness to prepare a supplemental expert report; and (4) direct defendant to reimburse them for the fees and expenses they will incur in taking these additional depositions of defendant and its employees, as well as for the fees and expenses incurred in the preparation of certain objections and motions and in sorting through unresponsive documents from defendant. Finally, plaintiffs want a default judgment entered in their favor on liability; reversal of the magistrate judge’s grant of defendant’s motion for a protective order quashing untimely depositions and an order allowing the timely completion of the depositions of John Hanrahan, Richard Zaveta and Marc Cesario under plaintiffs’ de bene esse deposition notices. Dkt. #443.
Not only do the parties disagree about the magistrate judge’s decision but they are at odds about the legal standard for the court’s review of the parties’ discovery dispute. Citing Retired Chicago Police Ass’n v. City of Chicago, 76 F.3d 856, 869 (7th Cir. 1996), plaintiffs say that it must be de novo, at least as to the magistrate judge’s disposition of their motion for sanctions, in light of the court of appeals’ statement in that case that “resolution of a sanctions request is a dispositive matter capable of being referred to a magistrate judge only under [28 U.S.C.] § 636(b)(1)(B) or § 636(b)(3), where the district judge must review the magistrate judge’s report and recommendation de novo.” Plaintiffs add that if this court disagrees about the standard to be applied, it must still reverse the denial of plaintiff’s motion for sanctions under the “clearly erroneous or contrary to law” standard in Fed.R.Civ.P. 72(a).
Defendant argues persuasively that it is doubtful the court of appeals intended Retired Chicago Police Ass’n to stand for the proposition that a magistrate judge’s review of an otherwise non-dispositive discovery motion requires de novo review simply because the movant also seeks a sanction against the opposing party. The matter is different if the magistrate judge decides to impose a sanction. 12 Wright, Miller & Marcus, Federal Practice & Procedure § 3068.2, at 340-44 (2d ed. 1997) (disputes about handling of discovery ordinarily viewed as non-dispositive under Rule 72 and treated as dispositive only when “the magistrate judge actually imposes” a dispositive sanction). In this case, in which the magistrate judge did not impose a sanction, I will do as most courts do and treat his rulings as non-dispositive and consider only whether his rulings were clearly erroneous or contrary to law.
On that question, plaintiffs allege that defendant engaged in sandbagging throughout the discovery process, producing prodigious amounts of discovery at disadvantageous times for plaintiffs, dragging its feet on production of discoverable information and generally not cooperating. Plaintiffs object to what they say was the magistrate judge’s rewarding of defendant for its recalcitrance and refusal to cooperate: denying plaintiffs’ motion for sanctions and granting defendant’s motion for a protective order. Not surprisingly, defendant paints a different picture. In its view, it cooperated from the beginning in the production of discovery, but was thwarted by plaintiffs’ refusal to narrow their discovery demands. My review of the record supports defendant’s view of the disputes.
In his July 9, 2015 telephone conference with the parties, the magistrate judge told plaintiffs several times to narrow and prioritize their discovery requests, dkt. #56 at 5, 6, 7, 8, 14 and 18, and suggested ways in which they could do so. Id. at 7-8, 10-11, 12, 14 and 16-17. Despite his guidance, plaintiffs failed to hone their requests so that the electronic searches of defendant’s electronically stored records would produce more relevant information, as well as take less time. Plaintiffs do not deny that defendant kept plaintiffs informed of its progress at each step of the process, advising plaintiffs of the size and pace of the production and seeking plaintiffs’ agreement about the size and scope of that production. Dft.’s Br., dkt. #491, at 5.
In addition to the timing and size of the production from defendant of electronically stored information, plaintiffs complain about defendant’s late disclosure of its experts. Plaintiffs admit that defendant produced its expert reports on the day to which plaintiffs agreed. Dkt. #444 at 13-14. (This agreement was reached after plaintiffs failed to make a timely disclosure of their damage calculations, which was a violation of the magistrate judge’s June 2015 order.)
From my reading of both sides’ briefs, as well as plaintiffs’ August 5, 2015 motion for an extension of time to file their motion for class certification, I conclude that plaintiffs have failed to show that the magistrate judge’s disposition of the parties’ discovery disputes in his November 15, 2014 text order, dkt. #439, was clearly erroneous or contrary to law. Accordingly, I will deny their requests to reopen discovery, to impose fees and expenses on defendant and to enter default judgment in their favor.
C. Defendant’s Motion
Defendant wants the court to strike the declaration of Joel M. Wolf, dkt. #433-1, in support of plaintiffs’ motion in limine to exclude the testimony of William Smith, one of defendant’s experts. It points out that the court’s preliminary pretrial conference order, dkt. #29, entered on April 21, 2014, provided that there would be no third round of expert reports. The parties could supplement an expert’s first report, but only if the supplementation were limited to matters raised in the original report and served no later than five ...