Fudali v. Napolitano

283 F.R.D. 400, 2012 U.S. Dist. LEXIS 81019, 2012 WL 2108651
CourtDistrict Court, N.D. Illinois
DecidedJune 12, 2012
DocketNos. 10 C 6744, 10 C 7597
StatusPublished
Cited by10 cases

This text of 283 F.R.D. 400 (Fudali v. Napolitano) is published on Counsel Stack Legal Research, covering District Court, N.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fudali v. Napolitano, 283 F.R.D. 400, 2012 U.S. Dist. LEXIS 81019, 2012 WL 2108651 (N.D. Ill. 2012).

Opinion

MEMORANDUM OPINION AND ORDER

JEFFREY COLE, United States Magistrate Judge.

A.

In October 2010, the plaintiff sued for discrimination by his employer, the Transportation Safety Administration (“TSA”). The TSA answered in May 2011, following certain intervening proceedings. Discovery is scheduled to close in 60 days. The plaintiffs efforts to secure compliance with a rather large number of its discovery requests have proved unsuccessful, and he has moved to compel production of documents and answers to interrogatories. The discovery Mr. Fudali’s counsel has served on the TSA is reasonable in scope and legitimate in purpose. Unfortunately, the same cannot be said of the TSA’s responses, which have been evasive and dilatory in effect, if not design.

While discovery may be the bane of modem litigation, Rossetto v. Pabst Brewing Co., Inc., 217 F.3d 539, 542 (7th Cir.2000) (Posner, J.); Frank Easterbrook, Discovery as Abuse, 69 B.U.L.Rev. 635 (1989), parties and their counsel have an obligation to participate fully, fairly and cooperatively in that often needlessly contentious endeavor. See Rule 37, Federal Rules of Civil Procedure; Harrington v. City of Chicago, 433 F.3d 542 (7th Cir.2006); Zenith Electronics Corp. v. WH-TV Broadcasting Corp., 395 F.3d 416 (7th Cir.2005); Johnson v. J.B. Hunt Transport, Inc., 280 F.3d 1125, 1132 (7th Cir.2002); Newman v. Metropolitan Pier & Exposition Authority, 962 F.2d 589 (7th Cir.1992); Airtex Corp. v. Shelley Radiant Ceiling Co., 536 F.2d 145, 155 (7th Cir.1976); Stingley v. City of Chicago, 2009 WL 3681984, *2 (N.D.Ill. 2009) (collecting cases). See also Littlejohn v. Bic Corp., 851 F.2d 673, 684 (3rd Cir.1988) (“Scrupulous compliance with court discovery orders is particularly important because our system of discovery relies on the cooperation and integrity of attorneys operating within the guidelines provided by the Federal Rules of Civil Procedure and the provisions of any protective order.”); Sentis Group, Inc., Coral Group, Inc. v. Shell Oil Co., 559 F.3d 888, 891 (8th Cir.2009); Moses v. Sterling Com[402]*402merce (America), Inc., 122 Fed.Appx. 177, 182 (6th Cir.2005).

The government’s obligation to participate fairly in discovery is no less than that required of non-governmental litigants. Indeed, the case can be made that its obligation is greater. That, at least, is the view of the D.C. Circuit:

The notion that government lawyers have obligations beyond those of private lawyers did not originate in oral argument in this case. A government lawyer “is the representative not of an ordinary party to a controversy,” the Supreme Court said long ago in a statement chiseled on the walls of the Justice Department, “but of a sovereignty whose obligation ... is not that it shall win a case, but that justice shall be done.” Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314 (1935). The Supreme Court was speaking of government prosecutors in Berger, but no one, to our knowledge (at least prior to oral argument), has suggested that the principle does not apply with equal force to the government’s civil lawyers. In fact, the American Bar Association’s Model Code of Professional Responsibility expressly holds a “government lawyer in a civil action or administrative proceeding” to higher standards than private lawyers, stating that government lawyers have “the responsibility to seek justice,” and “should refrain from instituting or continuing litigation that is obviously unfair.” Model Code of Professional Responsibility EC 7-14 (1981).

Freeport-McMoRan Oil & Gas Co. v. F.E.R.C., 962 F.2d 45, 47 (D.C.Cir.1992).

But we need not measure the TSA’s responses in this case by some higher measure than is imposed on all parties by the Federal Rules of Civil Procedure. After careful review of the plaintiffs motions and after hearing extensive oral argument on the motions—during which the discovery requests were reviewed one-by-one—-there can be only one conclusion, namely that the TSA has not been faithful to its obligations under the Federal Rules of Civil Procedure. Two simple examples suffice to make the point.

The TSA has yet to provide signed interrogatories, even though unsigned interrogatories do not comply with the plain and uncompromising requirement of Rule 33(a)(5). To add insult to injury, not only are the interrogatories unsigned, but the TSA has refused to provide the names of the individuals involved in providing the information contained in them on the ground that it was “premature” to do so. At the oral argument today, the TSA’s lawyer argued that they were waiting to provide that information until discovery was over, since there may be additional information forthcoming. What nonsense.

The TSA has also objected on relevancy grounds to requests for information relating to complaints by similarly situated TSA employees of discrimination like that alleged in the complaint, even though the cases are clear that such information could lead to admissible evidence at trial under Rule 404(b), and thus is discoverable under the broad definition of relevancy under Rule 26, Federal Rules of Civil Procedure. Indeed, the specialized rule of relevance in Rule 404(b) finds perhaps even more frequent application in employment discrimination and retaliation cases than it does in civil rights cases, where it has found an hospitable reception. Some commentators have argued that “other act” evidence is too routinely admitted in these cases and that the “applicability and effects of Rule 404 remain notoriously inconsistent and confused....” Lisa Marshall, The Character of Discrimination Law: The Incompatibility of Rule JOJ and Employment Discrimination Suits, 114 Yale L.J. 1063, 1072, 1098 (2005).1

[403]*403Be that as it may, Rule 404(b) has come to play a significant role in employment discrimination and retaliation cases. The cases are basically uniform in holding as a general principle that discriminatory intent or the pretextual nature of an employment related decision may be proven by “other acts” of discrimination or retaliation. See Warren v.

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283 F.R.D. 400, 2012 U.S. Dist. LEXIS 81019, 2012 WL 2108651, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fudali-v-napolitano-ilnd-2012.