In Fleury v. Union Pac. R.R. Co., No. 20 C 390 (N.D. Ill. April 15, 2024), Illinois Magistrate Judge Jeffrey Cole, frustrated with the lack of cooperation between the parties, denied the plaintiff’s motions, but did order the defendant to provide a privilege log for the communications between it and two third parties.

Case Discussion

Judge Cole, frustrated with the lack of cooperation, wasted no time in illustrating that frustration: “It is well to remember at this point in this long, contentious litigation that this is (at least on one level) a seemingly uncomplicated case about whether truckers entering the defendant’s Illinois facilities put their thumbs into gate access scanners for identification purposes and whether they did so consensually. While it seems simple enough, it has engendered four tries at an operative Complaint and fairly regular and repeated court involvement in discovery…At this point, from an objective perspective, one has to wonder if discovery in this case hasn’t passed the tipping point in terms of being ‘proportional to the needs of the case.’”

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He also said this: “In any event, as this case moved into its fifth year, the parties did not meet another fact discovery deadline – a deadline they had selected. It was the sixth one they had missed and, at their behest, discovery was extended a final time for another 45 days to April 15, 2024…We don’t know everything the parties have been doing with that extra time, but we do know that it has allowed them an opportunity to bring another discovery dispute to court. Actually, it allowed them the opportunity to bring two more discovery disputes to court, because no sooner had they finished briefing this one, they got into another one involving a deposition…The return on investment of granting discovery extensions has been disappointing, to say the least.”

As for the disputes at hand, there were three. First, the plaintiff asked the defendant to admit that it did not obtain plaintiff David Fleury’s informed written consent to collect his biometrics prior to the first occasion he underwent the AGS Driver Registration Process at one of the defendant’s Illinois facilities. Second, the plaintiff sought eleven documents that the defendant claimed were privileged, arguing that the defendant shared these documents with third parties, thus waiving the privilege. And third, the plaintiff wanted to inspect correspondence that the defendant had with counsel for third parties Remprex and Nascent Technology, arguing that any privilege was waived as the documents were shared among the three parties. The defendant claimed these communications were protected under the common interest doctrine.

Judge’s Ruling

Regarding the first dispute, Judge Cole stated: “under Fed. R. Civ.P. 36(a), a responding party can either answer or object, and if answering, may: (1) admit the matter; (2) deny the matter; or (3) state ‘in detail’ why he ‘cannot truthfully admit or deny’ it… The defendant clearly denied the plaintiff’s request. The plaintiff thinks the defendant ignored the words ‘informed written’ and ‘prior to the first occasion,’ but the defendant both specifically denied the request and fairly responded to its substance. Fed. R. Civ. P. 36(a)(4). This portion of the plaintiff’s motion is denied.”


Regarding the second dispute, Judge Cole stated: “Obviously, in a case like this one, attorneys are going to need assistance from experts in how these complicated systems work and affect shipping and security logistics. While software and logistics don’t appear to fall in the category of legal advice, the legal advice in this case has to be informed by individuals whose expertise falls outside of the realm of motions to compel discovery. If that’s not apparent, one need only go back to the Memorandum Opinion and Order of December 13, 2023. … Thus, it is to be expected that folks like Anthony Chavira and Ramakrishna Kothapally might be consulted and involved in legal advice regarding these types of topics. This part of the plaintiff’s motion is also denied.”

Regarding the third dispute, Judge Cole stated, again appearing frustrated with the lack of cooperation: “after about 170 pages of briefs and exhibits, maybe there was an agreement that the parties need not list post-Complaint communications on their privilege logs and maybe there wasn’t. The court – any court – would appreciate (and is entitled to) a bit more help than that… I would ordinarily decline to rule on a such a purportedly significant dispute where the parties met just one time several months ago – and, seemingly, did not exactly do so in the required good faith and where the parties’ briefs have been less than helpful. But, because the defendant is asserting that the ‘common interest’ doctrine covers its communications with Nacsent and Remprex, the defendant is definitely going to have to compile a privilege log for those exchanges whether they came before or after plaintiff filed its initial Complaint.” Judge Cole, in ordering the defendant to compile a privilege log for the communications, also noted that the defendant “cannot simply make a blanket claim of common interest doctrine applicability as the defendant is attempting to do here. It must instead assert the common interest doctrine on a document-by-document basis, as it is limited to those documents that fall within that interest.”

So, what do you think? Can you understand why the Court was frustrated with the lack of cooperation? Please share any comments you might have or if you’d like to know more about a particular topic.

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