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- ilnd;;1:05-cv-05262_de51 RegisterActionDate "2007-04-05" @default.
- ilnd;;1:05-cv-05262_de51 RegisterActionDescriptionText "MINUTE entry before Judge Jeffrey Cole: Hearing on defendant's motion to compel non-party to comply with discovery held on 4/5/2007. In March 2006, the defendant served extensive discovery on nonparty Ciba Visionin. That discovery included a deposition of Ciba and an extensive on-site inspection of the machine by plaintiff that allegedly caused the plaintiff's injuries. The defendant participated in that inspection. Now, on the eve of discovery closure, the defendant has issued extensive discovery requests to Ciba and demands that its expert be allowed to inspect the machine, which had been inspected a year earlier. That inspection was videotaped. Ciba, not surprisingly, has objected to the 31 categories of information in the rider to the current notice of deposition--the 2006 rider contained 27 categories of information--and to any further inspection of the machine. The defendant's motion to compel contains no citation of cases and no explanation of why the additional discovery is needed beyond the claim that it has only learned recently of the plaintiff's theories of recovery. The laconic nature of the motion implicates the doctrine that skeletal and unsupported presentations are not acceptable and result in a waiver. Bretford Mfg., Inc. v. Smith System Mfg. Corp., 419 F.3d 576, 581 (7th Cir.2005); United States v. McLee, 436 F.3d 751, 760 (7th Cir. 2006); United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991). I also found unpersuasive the claim of recent disclosure by the plaintiff in light of the clarity of the allegations in the complaint regarding the theory of recovery. I urged the parties to try to work out their dispute, and I indicated that I had concerns about the subpoenas to the third party, which had already been deposed in March 2006 and about a second inspection of the machine. After consultation, counsel worked out all but two of the 31 specifications (i.e., numbers 14 and 23) in the rider to the March 2007 notice of records deposition. I sustained the third party's objection to those two items on the ground that the subpoena had been issued without court approval in violation of Rule 30(a)(2)(B), which requires court approval for a second deposition of a previously deposed person. I also concluded that there was no justification for having waited a year to seek the current discovery, and I rejected the idea that the defendant had just learned the plaintiff's theories of the case. I went through the complaint and the initial status report and said that the kind if sophisticated lawyers who were representing defendant could not possibly have been caught unawares by whatever had been revealed in recent expert disclosures. The possible theory that is advanced to justify disclosure of items number 14 and 23 of the deposition notice is that perhaps the machine's coding had been altered, was a matter that the defense could not possibly have been unaware of at the time of the initial deposition in March 2006. Moreover, that possible defense was not a function of what was disclosed by the plaintiff's expert, who obviously was not relying on any theory that the machine that harmed the plaintiff had been altered by the nonparty to whom the present discovery is directed. Finally, as to the question of a second examination of the machine that caused the plaintiff's injuries, I left it up to the parties to see if they could work it out and to call me this afternoon with an answer. I told the defendant's lawyer that he needed to explain why a second examination was necessary - the motion to compel made no attempt to do so or to explain why the videotape that was taken during the first examination was not sufficient. The motion to compel 47 is denied in part as moot in light of the parties' agreement and granted in part. Mailed notice by judge's staff. (srb,) (Entered: 04/05/2007)" @default.
- ilnd;;1:05-cv-05262_de51 AdministrativeID "53" @default.
- ilnd;;1:05-cv-05262_de51 hasReferenceToOtherEntry ilnd;;1:05-cv-05262_de47 @default.