Archer v. T&J Express, Inc.

          OPINION AND ORDER

          JOHN E. MARTIN MAGISTRATE JUDGE

         This matter is before the Court on a Motion to Compel Discovery Responses [DE 27], filed by Plaintiff on December 21, 2017, and Defendants' Motion for Protective Order [DE 32]. Plaintiff asks the Court to compel Defendants to provide additional information regarding the witnesses whom defendants have designated as testifying experts. Defendants filed a response on January 4, 2018 and on January 9, 2018, Plaintiff filed a reply. On January 11, 2018, Defendants received leave of Court and filed a sur-response regarding the timing of Plaintiff's Motion to Compel, and on January 12, 2018, Plaintiff filed a sur-reply.

         I. Analysis

         A party may seek an order to compel discovery when an opposing party fails to respond to discovery requests or provides evasive or incomplete responses. See Fed. R. Civ. P. 37(a). Federal Rule of Civil Procedure 26(b)(1) permits discovery “regarding any nonprivileged matter that is relevant to any party's claim or defense.” Fed.R.Civ.P. 26(b)(1). Furthermore, the Rule provides that “[r]elevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.” Fed.R.Civ.P. 26(b)(1). Relevancy is “construed broadly to encompass any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978) (citing Hickman v. Taylor, 329 U.S. 495, 501 (1947)). A party may seek an order to compel discovery when an opposing party fails to respond to discovery requests or provides evasive or incomplete responses. See Fed. R. Civ. P. 37(a). A party objecting to the discovery request bears the burden of showing why the request is improper. See McGrath v. Everest Nat. Ins. Co., 625 F.Supp.2d 660, 670 (N.D. Ind. 2008). The Court has broad discretion when deciding whether to compel discovery. Thermal Design, Inc. v. Am. Soc'y of Heating, Refrigerating & Air-Conditioning Eng'rs, Inc., 755 F.3d 832, 837 (7th Cir. 2014); Rennie v. Dalton, 3 F.3d 1100, 1110 (7th Cir. 1993)).

         Federal Rule of Civil Procedure 26(c) also allows the Court, for good cause, to issue an order to protect a party from discovery “from annoyance, embarrassment, oppression, or undue burden or expense, ” including “forbidding inquiry into certain matters.” Fed.R.Civ.P. 26(c)(1)(D). Rule 26(c) “essentially operates to balance the public's interest in open proceedings against an individual's private interest in avoiding annoyance, embarrassment, oppression, or undue burden or expense.” Felling v. Knight, 211 F.R.D. 552, 554 (S.D. Ind. 2003) (quotations omitted). “The party moving for a protective order must establish that good cause exists for the Court to exercise its discretion in entering a protective order.” Nieves v. OPA, Inc., 948 F.Supp.2d 887, 891 (N.D. Ill. 2013).

         A. Timeliness

         Plaintiff's Amended Complaint seeks recovery for damages sustained in a motor vehicle accident. The discovery deadline in this case expired on July 7, 2017. Defendant argues that the instant Motion to Compel is untimely because it came after the discovery deadline had expired, and there was no motion for extension of time to complete discovery. In her sur-reply, Plaintiff represents that the parties informally extended discovery through August 11, 2017, and that Defendant responded to requests even later, on September 22, 2017. It is these requests that are the subject of the instant Motion to Compel.

         Under Federal Rule of Civil Procedure 6, “[w]hen an act may or must be done within a specified time, the court may, for good cause, extend the time: . . . (A) before the original time or its extension expires; or (B) on motion made after the time has expired if the party failed to act because of excusable neglect.” Fed.R.Civ.P. 6(b)(1). To determine whether the neglect was excusable, the Court must “tak[e] into consideration all relevant circumstances including the danger of prejudice to the non-moving party, the length of the delay and its potential impact on judicial proceedings, the reason for the delay, including whether it was within the reasonable control of the movant, and whether the movant acted in good faith.” Marquez v. Mineta, 424 F.3d 539, 541 (7th Cir. 2005) (quotations and citations omitted).

         The discovery deadline expired on July 7, 2017, and neither party requested an extension of that deadline from the Court. While the Court appreciates the attempt of the parties to come to an agreement without involving the Court, per Rule 6, the parties should have filed a request for extension with the Court outlining their agreement. However, since both parties continued to participate in discovery after the Court's deadline, neither is prejudiced, and the Court does not find that Plaintiff acted in bad faith. Accordingly, the Court finds good cause to reopen discovery in this case and extend the deadline for only as long as it takes to complete the discovery described below.

         B. Motion to Compel

         Plaintiff now moves to compel Defendants to respond to interrogatories and requests for production regarding potential bias of the witnesses they expect to testify as experts at trial, including their tax information and information about their past history as testifying and consulting experts. Defendants object to providing some of the information, and as to the rest of it, propose to provide it through depositions rather than written discovery. Defendants seek a protective order that prohibits Plaintiff from seeking tax information of the witnesses and restricting their responses to a deposition.

         As an initial matter, the Court notes that in her reply, Plaintiff agrees to withdraw her request for the witnesses's income tax returns. Accordingly, that portion of Plaintiff's motion to compel and of Defendants' motion for protective order are moot. Defendants need not produce tax documentation of their expert witnesses or otherwise respond to Plaintiff's Request for Production 1(f).

         Plaintiff seeks information about income derived by the expert witnesses from their work as experts and the amount of time spent doing that type of work. “An expert witness's potential biases are a relevant topic of inquiry and are thus within the scope of discovery. A party seeking such discovery should point to something that demonstrates that the requested documents are both relevant and proportional to the needs of the case, as Rule 26 dictates.” Allstate Ins. Co. v. Electrolux Home Prod., Inc., No. 16-CV-4161, 2017 WL 5478297, at *4 (N.D. Ill. Nov. 15, 2017) (citations omitted).

         Plaintiff seeks information about all expert testimony provided in other cases for the last four years, and all expert reports created by Defendants' experts in any cases over the last four years. In addition, she seeks information about all cases the experts worked on as consulting expert witnesses. Defendants object to providing expert reports created by their experts in unrelated matters or information about all of the cases the experts have consulted for without testifying. Federal Rule of Civil Procedure 26 provides that facts known by or opinions of non-testifying experts are generally non-discoverable without a showing of “exceptional circumstances.” Fed.R.Civ.P. 26(b)(4)(D). Other than a general desire to determine bias, Plaintiff has not given any reason she needs to obtain work product and specific identification of all of the cases on which experts have served as consultants and the identities of all attorneys with whom they have worked. She has not made any showing of exceptional circumstances that specific information about consulting work done in these other, unrelated cases is relevant to this case. Information about cases at which the witnesses testified as experts at trial or deposition can be provided, and it appears has already been provided as part of the Rule 26 cases lists. In ...