Minute Order Form (06/97)

United States District Court, Northern District ofIIlinois

Name of Assigned Judge or Magistrate Judge
CASE NUMBER

Judge McKeague
99 C 195~00 C 171~

Sitting Judge if Other than Assigned Judge
DATE

Ian H. Levin 9/22/2000

CASE TITLE
MOTION:

Jones vs, Scientific Colors Inc
[In the followmg box (a) mdlcate the party filing the mOtion, e.g., plam, tl, ff, defendant,3rd party plamtlff, and (b) state bnefly the nature of the motion being presented.]

Defendant, Apollo Colors Inc.'s motion to compel discovery; Motion for protective order

DOCKET ENTRY:

(1)

•

Filed motion of [ use listing in "Motion" box above,]

(2) o

Brief in support of motion due _ _ _'

(3)

o

Answer brief to motion due___, Reply to answer brief due___,

(4) o

Ruling/Hearing on ___ set for ___ at ___'

(5)

•

Status hearing set for 10/23/2000 at 9:30 A.M..

(6) o

Pretrial conference[held/continued to] [set for/re-set for] on ___ set for ___ at _ _ _'

(7) o

Trial[set for/re-set for] on ___ at _ _ _'

(8) o

[Bench/Jury trial] [Hearing] held/continued to ___ at ___'

(9) o

This case is dismissed [with/without] prejudice and without costs[by/agreementlpursuant to]
o FRCP4(m) 0 General Rule 21 0 FRCP41(a)(1) 0 FRCP41(a)(2),

(10) •

[Other docket entry] Motion to compel is granted. Plaintiff Derek Lee to respond to written

discovery from Apollo by 10/23/00. Motion for protective order is denied.

(11) 0

[For further detail see order (on reverse side of/attached to) the original minute

No notices required, advised in open court.

No notices required.

Notices mailed by judge's staff.

Notified counsel by telephone.

Docketing to mail notices.

Mail AD 450 form,

Copy to judge/magistrate judge.

courtroom

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 Minute Order Form (06/91)

United States District Court, Northern District ofIllinois

Name of Assigned Judge or Magistrate Judge
CASE NUMBER

Judge McKeague
0/ 99 C 1959\00 C

Sitting Judge if Other than Assigned Judge
DATE

Ian H. Levin 5/22/2001

CASE TITLE
MOTION:

Jones vs, Scientific Colors Inc
[In the following box (a) indIcate the party filing the motion, e.g., plamtlff, defendant, 3rd party plamtlff, and (b) state briefly the nature of the motion being presented.]

Emergency motion to compel the continued deposition of Franklin Thompson

DOCKET ENTRY:

(1)

•

Filed motion of [ use listing in "Motion" box above,]

(2) 0

Brief in support of motion due ___ '

(3) 0

Answer brief to motion due___, Reply to answer brief due___,

(4) 0

Ruling/Hearing on ___ set for

at _ __

(5) 0

Status hearing[held/continued to] [set for/re-set for] on ___ set for ___ at _ __

(6) 0

Pretrial conference[held/continued to] [set for/re-set for] on ___ set for _ _ _ at _ _ _'

(7) 0

Trial[set for/re-set for] on ___ at ___,

(8) 0

[Bench/Jury trial] [Hearing] held/continued to _ _ at ___'

(9) 0
• (10)

This case is dismissed [with/without] prejudice and without costs[by/agreementlpursuant to]
o FRCP4(m) 0 General Rule 21 0 FRCP41(a)(I) 0 FRCP41(a)(2),
[Other docket entry] Motion is granted on terms stated of record.

(11) 0

[For further detail see order (on reverse side of/attached to) the original minute order,]

./' No notices required, advised in open court.

No notices required.

Notices mailed by judge's staff.

Notified counsel by telephone.

Docketing to mail notices.

Mail AO 450 form. ./' Copy to judge/magistrate judge.

i:'iLED F0 DOCI\ETiHG

courtroom

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_.;,;,,""'''' initials

 
 Minute Order Form (06/97)

United States District Court, Northern District of Illinois

Name of Assigned Judge or Magistrate Judge

Judge McKeagu-e_._--,

Sitting Judge if Other than Assigned Judge

Ian H. Levin

CASE NUMBER CASE TITLE
MOTION:

99 C 1959 (00 C !JJ)

DATE

-

Jones vs. Scientific Colors Inc

512212001

..
[In the followlIlg box (a) IIldlcate the party filing the mOtion, e.g., pla1J1tlft, dcfendant, 3rd party plamtlff, and (b) state briefly the nature of the motion being presented.]

Motion to compel response to defendant's third set of interrogatories to plaintiffs and production of Norm Jones' statements

DOCKET ENTRY:

(I)

•

Filed motion of [ use listing in "Motion" box above.]

(2) o

Brief in support of motion due ___.

(3) o

Answer brief to motion due___. Reply to answer brief due___.

(4) o

Ruling/Hearing on ___ set for ___ at ___.

(5) o

Status hearing[held/continued to] [set for/re-set for] on ___ set for ___ at _ __

(6) o

Pretrial conference[held/continued to] [set for/re-set for] on ___ set for ___ at ___.

(7) o

Trial[set for/re-set for] on ___ at ___.

(8) o

[Bench/Jury trial] [Hearing] held/continued to _ _ at ___.

(9) o

This case is dismissed [with/without] prejudice and without costs[by/agreementJpursuant to]
o FRCP4(m) 0 General Rule 21 0 FRCP41(a)(I) 0 FRCP41(a)(2).

(10) •

[Other docket entry] Motion is granted in part and denied in part on terms stated and reasons

stated of record.

(11) 0

[For further detail see order (on reverse side of/attached to) the original minute order.]

./ No notices required, advised in open court.

No notices required.

Notices mailed by judge's staff.

Notified counsel by telephone.

Docketing to mail notices. Mail AO 450 form. Copy to judge/magistrate judge.

, ,-" \.
;-- I'. '",..

courtroom

SM

deputy's

initials

·Ii

·i

 
 Minute Order Form (06/97)

United States District Court, Northern District of Illinois

Name of Assigned Judge or Magistrate Judge
CASE NUMBER

Judge McKeague

(6Oc 99 C 1959

17i::5

Sitting Judge if Other than Assigned Judge
DATE

Ian H, Levin 611912001

CASE TITLE
MOTION:

Jones VS, Scientific Colors
{In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature of the motion being presented.]

Motion to compel answers to interrogatories

DOCKET ENTRY:

(I)

•

Filed motion of[ use listing in "Motion" box above,]

(2) o

Brief in support of motion due _ _ _'

(3) o

Answer brief to motion due___, Reply to answer brief due___,

(4) o

Ruling/Hearing on _ _ _ set for _ _ _ at _ _ _'

(5) o

Status hearing[held/continued to] [set for/re-set for] on ___ set for _ _ _ at _ _ _'

(6) o

Pretrial conference[held/continued to] [set for/re-set for] on _ _ _ set for _ _ _ at _ _ _'

(7) o

Trial[set for/re-set for] on _ _ _ at ___'

(8) o

[Bench/Jury trial] [Hearing] held/continued to ___ at ___'

(9) o

This case is dismissed [with/without] prejudice and without costs[by/agreementfpursuant to]
o FRCP4(m) 0 General Rule 21 0 FRCP4l(a)(I) 0 FRCP4l(a)(2),

(10).

[Other docket entry] Motion is granted for the reasons stated of record. Answers to

interrogatories due by 6/26/01.

(I

o

[For further detail see order (on reverse side of/attached to) the original minute ordeL]

,/ No notices required, advised in open court.

No notices required.

Notices mailed by judge's staff.

Notified counsel by telephone.

Docketing to mail notices. Mail AO 450 form. ,/ Copy to judge/magistrate judge.

courtroom

SM

deputy's

initials

oi JUri 19 Pi'l 5: 13

mailing deputy initials

 
 Minute Order Form (06197)

United States District Court, Northern District ofIlIinois

Name of Assigned Judge or Magistrate Judge

Judge McKeague

Sitting Judge if Other than Assigned Judge

IanH, Levin

CASE NUMBER

00 C 171

DATE

7/31/2001

CASE TITLE
MOTION:

Jones vs, Scientific Colors
[In the followmg box (a) mdlcate the party filmg the motIOn, e.g., plamtlff, defendant, 3rd partyplam. .tlff, and (b) state bnefly the nature
of the motion being presented.]

Motion to compel deposition of Dan Kinsella

DOCKET ENTRY:

(I)

•

Filed motion of [use listing in "Motion" box above,]

(2) o

Briefin support of motion due ___.

(3) o

Answer brief to motion due___, Reply to answer brief due___,

(4) o

RulinglHearing on ___ set for ___ at ___'

(5) o

Status hearing[heldlcontinued to] [set for/re-set for] on _ _ _ set for _ _ _ at _ _ _'

(6) o

Pretrial conference[heldlcontinued to] [set for/re-set for] on _ _ _ set for _ _ _ at _ _ _'

(7) o

Trial[set for/re-set for] on _ _ _ at _ _ _'

(8) o

[Bench/Jury trial] [Hearing] heldlcontinued to ___ at ___.

(9) o

This case is dismissed [with/without] prejudice and without costs[by/agreementlpursuant to]
o FRCP4(m) 0 General Rule 21 0 FRCP41(a)(I) 0 FRCP4I(a)(2).

(10).

[Other docket entry] Motion is granted. Attorney Dan Kinsella is hereby ordered to be

produced for deposition by 8/21101 at 9:00.

(11) 0

[For further detail see order (on reverse side of/attached to) the

No notices required, advised in open court.

No notices required.

Notices mailed by judge's staff.

Notified counsel by telephone .

./' Docketing to mail notices.

Mail AO 450 form.

Copy to judge/magistrate judge.

courtroom

SM

deputy's

initials

minute order.]
mailing deputy initials

 
 , Minute Order Form (06197)

United States District Court, Northern District of Illinois

Name of Assigned Judge or Magistrate Judge

David W. McKeague

Sitting Judge if Other than Assigned Judge

CASE NUMBER

00 C 171

DATE

3/22/2002

CASE TITLE
MOTION:

EEOC v. Scientific Colors, Inc., d/b/a Apollo Colors
[In the followmgbox (a) indicate the partyfilingthe motion,e.g., plaintiff,defendant, 3rd party plaintiff, and (b)statebrieflythenature of the motion being presented.]

DOCKET ENTRY:

(I) D

Filed motion of [use listing in "Motion" box above.]

(2) D (3) D (4) D (5) D

Brief in support of motion due ___. Answer brief to motion due___. Reply to answer brief due___. Ruling/Hearing on ___ set for ___ at ___. Status hearing[heldlcontinued to] [set for/re-set for] on ___ set for ___ at _ __

(6) D (7) D

Pretrial conference[heldlcontinued to] [set for/re-set for] on ___ set for _ _ _ at ___. Trial[set for/re-set for] on ___ at ___.

(8) D

(9)

D

[Bench/Jury trial] [Hearing] heldlcontinued to ___ at ___.
This case is dismissed [with/without] prejudice and wilhout costs[by/agreementlpursuant to] D FRCP4(m) D General Rule 21 D FRCP4l(a)(I) D FRCP41(a)(2).

(10) •

[Olher docket entry] Enter Consent Decree: Apollo shall pay the gross sum of one million eight

hundred twenty five thousand dollars ($1,825,000) to be distributed as set forth in this consent decree.

Each party to this Decree shall bear its own expenses, costs and attorneys' fees. Any pending motions in

this action are moot.

• (11)

[For further detail see order attached to the original minute ordeL]

-
--;-
-
-
-

No notices required, advised in open court. No notices required. Notices mailed by judge's staff. Notified counsel by telephone. Docketing to mail notices. Mail AD 450 form. Copy to judge/magistrate judge.

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

NORMAN JONES, et at.

)

Plaintiffs,

)

)

v.

)

)

SCIENTIFIC COLORS, INC.,

)

d/b/a APOLLO COLORS,

)

Defendant.

)

and

)

)

Case No. 99 C 1959

EQUAL EMPLOYMENT OPPORTUNITY )

COMMISSION,

)

consolidated with

Plaintiff,

) )

~OC0170

v.

)

)

Visiting Judge McKeague

SCIENTIFIC COLORS, INC.,

)

d/b/a APOLLO COLORS,

)

Defendant.

)

)

CONSENT DECREE THE LITIGATION
1. PlaintiffEqual Employment Opportunity Commission (the "EEOC") filed this action alleging that since at least January I, 1997, Defendant, Scientific Colors, Inc., doing business as Apollo Colors ("Defendant" or "Apollo"), violated Section 703(a) of Title VII of the Civil Rights Act of 1964, as amended ("Title VII"), 42 U.S. C. § 2000e-2(a), by discriminating against Charging Parties Norman Jones, Donald Newell, Nathaniel J. Bell, Harlan 1. Bennett, Terry Fuller, Douglas George, Jr., Thomas Heywood, Derrick Lee, Trent Perry, Henry Williams, Franklin D. Thomas and a class of current and former Black employees on the basis of race. Specifically, the EEOC alleged
q

that Defendant, at its Rockdale, Illinois production facility, violated Title VII by fostering or tolerating a working environment that was hostile to Black employees. Apollo denies these allegations. Charging Parties Norman Jones, Donald Newell, Nathaniel J. Bell, Harlan L. Bennett, Terry Fuller, Douglas George, Jr., Thomas Heywood, Trent Perry, and Derrick Lee filed independent claims under 42 USC Section 1981 on March 25, 1999.1 They were represented by private counsel and shall hereinafter be known collectively as the Private Plaintiffs. Private Plaintiffs §1981 claims and EEOC's Title VII claims were consolidated by Order of this Court on October 19,2000.
2. In the interest of resolving this matter, and as a result of having engaged III comprehensive settlement negotiations, the parties have agreed that this action should be finally resolved by entry ofthis Consent Decree (hereafter "Decree"). This Decree fully and finally resolves any and all issues and claims arising out ofthe Complaint filed by the EEOC in this action. Nothing in this Decree should be construed as an admission by any party regarding either liability or nonliability.
FINDINGS 3. Having carefully examined the terms and provisions ofthis Decree, and based on the pleadings, record, and stipulations of the parties, the Court finds the following:
a. This Court has jurisdiction of the subject matter of this action and of the parties.
b. The terms of this Decree are adequate, fair, reasonable, equitable, and just. The rights of the parties, the Private Plaintiffs, the EEOC claimants, and the public interest are
1 Charging Party Franklin Thompson later joined the §1981 action and is a Private Plaintiff. Derrick Lee's individual claims were dismissed on Summary Judgment. Though Lee is no longer a Private Plaintiff he remains an EEOC claimant.
2

adequately protected by this Decree. c. This Decree confonns with the Federal Rules ofCivil Procedure and Title VII
and is not in derogation of the rights or privileges of any person. The entry of this Decree will further the objectives of Title VII and will be in the best interests of the parties, the claimants, and the public.
NOW, THEREFORE, IT IS ORDERED, ADJUDGED AND DECREED THAT: NON-DISCRIMINATION
4. Apollo, its officers, agents (including management personnel), successors, and assigns are enjoined from discriminating on the basis of race. Nothing in this decree shall be construed as placing any obligation on any individual except in their capacity as an officer or agent of Apollo.
5. Apollo shall ensure that an inspection for racial graffiti is made on a daily basis at its production facility. Any racial graffiti, nooses or other racially derogatory images discovered or brought to the attention of Apollo supervisors or other managers personally or in writing by any of its employees shall first be photographed, and then removed or obliterated, within twenty-fours. Swastikas, nooses and references to the Ku Klux Klan, the Klan, KKK (collectively "KKK"), are racial graffiti to be dealt with by Defendant in accordance with this paragraph and Paragraph 10 below. Any racial graffiti, nooses or other racially derogatory images discovered or brought to the attention of Apollo Group Leaders shall be immediately reported by the Group Leader to hislher immediate supervisor or to the Human Resources Manager.
3

NON-RETALIATION 6. Apollo, its officers, agents, employees, successors, assigns and all persons acting in

concert with it shaH not engage in any form of retaliation against any person because such person has opposed any practice made unlawful under Title VII, filed a Charge of Discrimination under Title VII, testified or participated in any manner in any investigation, proceeding, or hearing under Title VII, or asserted any rights under this Decree.
MONETARY RELIEF 7. Apollo shall pay the gross sum of one million eight hundred twenty five thousand dollars ($1,825,000) to be distributed as follows: a. Apollo shall pay a total of $375,000 to the claimants for whom the EEOC seeks relief, listed below, as damages. None of the money shall be considered compensation for lost wages, so no withholdings shall be made from the monetary amount. Apollo will issue IRS Form 1099's with respect to the money paid. The division of the total amount among the claimants has been at the sole discretion of the EEOC, subject to Court approval. In exercising such discretion, EEOC took into account the evidence and information available to it through the investigation and litigation of this matter, including but not limited to the relative length of service ofthe respective claimants. Apollo had no part in determining how the monetary relief was divided among the

claimants. The division is as follows:

CLAIMANT
1 L. MICHAEL AMOS 2 ELLIOT BACQUET 3 NICHOLAS BATES 4 ANTHONY BROOKS 5 KEVIN BROOKS 6 GARRY CARTER

Amount
$8,015.00 $7,010.00 $7,345.00 $13,375.00 $9,690.00 $8,350.00

4

7 CAGER CHAPMAN 8 AUDWIN FITTS 9 ROBERT JOHNSON 10 HENRY JONES 11 TOMMY LASTER 12 DERRICK LEE 13 LEE LONG 14 MICHAEL POOLE 15 TOMEKER ROBERTSON 16 ROBERT ROBINSON 17 RAYMOND SHIRLEY 18 MARVIN SIMPSON 19 JACK SMITH 20 CHRISTOPHER SNAPP 21 ARTIES TITUS 22 HENRY WILLIAMS 23 LECARTIS WEST
~,"

$6,005.00 $22,085.00 $19,740.00
$8,015.00 $9,020.00 $21,725.00 $44,195.00 $32,135.00 $22,085.00 $15,050.00 $35820.00 $15,385.00 $16,725.00 $14,715.00 $25,100.00 $11,005.00 $2,410.00
$37!innn nr

b. Apollo shall pay $1,450,000, inclusive of attorneys' fees and costs, to the Private Plaintiffs represented by the law finn of Spesia, Ayers and Ardaugh. This amount shall be distributed in a manner and on tenns separately agreed to by Defendant and by Spesia, Ayers and Ardaugh on behalf of the Private Plaintiffs.
8. Payment shall be made in the following manner: a. Within five (5) business days after receipt by Apollo ofa Release Agreement
in the fonnat of Exhibit A from a claimant, Apollo shall issue and mail by certified mail to each EEOC claimant, a certified or cashier's check payable to the order ofsuch claimant to the addresses indicated in Exhibits A and B, in settlement for damages claimed in this case by the EEOC, with a

5

copy to the EEOC. 2 In the event that a check is deemed undeliverable, Apollo shall advise the EEOC. The EEOC shall then have an additional sixty (60) days to provide an alternative address for the mailing of such check. If a check remains undeliverable, then Apollo shall issue a check in the same amount to the United Negro College Fund. Upon issuance of any such check to the United Negro College Fund, Apollo shall be released from all obligations under this Decree to make any payment to such claimant, as if such claimant had signed the Release Agreement (Exhibit A), and the right of such claimants to receive any monetary or other relief under this Decree shall be extinguished and forever barred. No portion ofthe monetary reliefprovided for by this Decree shall revert to Apollo.
b. Within five (5) business days after receipt of the agreed upon Release Agreements from the Private Plaintiffs, Apollo shall issue and mail a certified or cashier's check(s) to the law firm ofSpesia, Ayers and Ardaugh in the amount(s) directed by that firm.
POSTING OF NOTICE 9. Within ten (10) business days after entry ofthis Decree, Apollo shall post same-sized copies of the Notice attached as Exhibit C to this Decree on the two bulletin boards, secured and glassed in, usually used by Apollo for communicating with employees at its Rockdale, Illinois production facility. The Notice shall remain posted for three (3) years from the date of entry ofthis Decree. Apollo shall take all reasonable steps to ensure that the posting is not altered, defaced or covered by any other material. Apollo shall certify to the EEOC in writing within ten (10) business
2 After consulting with his private counsel, Derrick Lee has agreed to sign a broader release than that provided for in Exhibit A, which release, among other things, waives his appellate rights. Lee's participation in this settlement, and his receipt of the money indicated in the chart above, is predicated on his signing and submitting to Apollo within 30 days of the entree of this Decree the release which Lee, through his own private counsel, and Apollo have agreed upon. In the event that Lee does not sign and submit the release to Apollo, his portion of the settlement shall be paid to the United Negro College Fund.
6

days after entry of the Decree that the Notice has been properly posted. Apollo shall permit a representative ofthe EEOC to enter Apollo's premises for purposes ofverifying compliance with this Paragraph at any time during normal business hours without prior notice.
INSTALLATION OF CAMERAS 10. Within ninety (90) days ofthe entry ofthis Decree, Apollo will install video cameras directed at the entrances to the restrooms, locker rooms and break rooms. Notices will be posted advising employees that such video cameras have been installed. Tapes from each camera will be kept for four (4) days. In the event racial graffiti is found in any area following the daily inspection of the premises, Apollo will increase the frequency of inspection of that area to at least twice per shift. Ifa future inspection of that area reveals a recurrence of graffiti, Apollo will review the tapes, seek to determine which employees entered the area in question during the time period between inspections and question those employees in an effort to determine who posted the graffiti.
RECORD KEEPING 11. For a period of three (3) years following entry ofthis Decree, Apollo shall maintain and make available for inspection and copying by the EEOC records of each complaint of graffiti or of any racial incident occurring in its Rockdale, Illinois production facility. Such report shall indicate the date the complaint was made, who made it, what was alleged, and what actions the Defendant took to resolve the matter. The Defendant shall also make records of all actions it takes to prevent racial incidents or graffiti in its plant during the duration of this Decree. 12. Apollo shall make all documents or records referred to in Paragraphs 10 and 11, above, available for inspection and copying within ten (10) business days after the EEOC so requests. In addition, Apollo shall make available for interview all persons within its employ whom the EEOC reasonably requests for purposes of verifying compliance with this Decree and shall
7

peffilit a representative of the EEOC to enter Apollo's premises for such purposes on five (5) business days advance notice by the EEOC.
13. Nothing contained in this Decree shall be construed to limit any obligation Apollo may otherwise have to maintain records under Title VII or any other law or regulation.
REPORTING 14. Apollo shall furnish to the EEOC the following written reports semi-annually for a period ofthree (3) years following entry ofthis Decree. The first report shall be due six (6) months after entry of the Decree. The final report shall be due thirty-six (36) months after entry of the Decree. Each such report shall contain:
a. A summary ofthe information recorded by Apollo pursuant to Paragraph 10, including the identity of all persons present in a room when graffiti reappeared, the dates and times of the reappearance, and the actions taken by Apollo, including any discipline given;
b. A summary of the information recorded by Apollo pursuantto Paragraph 11, induding the name of the complainant, the allegation of the complaint and the action taken by Defendant in response; and,
c. A certification by Apollo that the Notice required to be posted in Paragraph 9, above, remained posted during the entire six (6) month period preceding the report.
ADOPTION AND DISTRIBUTION OF POLICY AGAINST RACIAL HARASSMENT
15. Within fourteen (14) working days after the entry of this Consent Decree, Apollo shall adopt and distribute to all employees a policy against racial harassment ("the Policy"). Apollo shall also provide a copy of the Policy to the EEOC. The Policy shall specifically prohibit racial insults, nooses and graffiti (including racially derogatory terms, swastikas, nooses and references
8

to the KKK). It shall provide that complaints of racial harassment may be made to any person in the chain of command above an employee or directly to the Director of the Department of Human Resources. It shall not require employees to complain ofharassment to a person against whom they allege harassment. It shall provide that employees who violate the policy are subject to discipline up to and including discharge. Apollo shall forward the Policy to the EEOC within three (3) business days after entry ofthis Decree.
16. A copy ofthe Policy shall be distributed to each new temporary employee on the day the person is hired as a temporary employee either directly by Apollo or through a temporary agency. In addition if an employee is first hired as a permanent employee, a copy ofthe Policy shall be given to himlher on the date of hire. Copies of the Policy shall also be posted on the bulletin boards customarily used for posting notices from management to employees.
TRAINING 17. Defendant shall provide training on the requirements of Title VII on the following terms:
a. Defendant shall retain and pay for a consultant/lecturer ("trainer"), approved by the EEOC, to provide training with respect to racial harassment and with respect to the Policy implemented pursuant to Paragraph 15 above.
b. The training will be provided to all Apollo employees, including temporary employees employed at the time ofthe training. A registry of attendance shall be retained by Apollo for the duration of the Consent Decree.
c. Apollo shall first provide training in accordance with Paragraph 17(a) within ninety (90) calendar days of the entry of this Consent Decree. Apollo shall then also provide such
9

training on at least one occasion in calendar years 2003, and 2004. 18. Apollo shall obtain the EEOC's approval of its proposed trainer prior to each year's
set oftraining sessions. Apollo shall submit the name, address, telephone number and resume ofthe proposed trainer, together with the date(s) of the proposed training sessions to the EEOC within thirty (30) calendar days prior to the first day ofthe proposed date(s) oftraining. The EEOC shall have fifteen (15) calendar days from the date ofreceipt ofthe information described above to accept or rej ect the proposed trainer(s). In the event the EEOC does not approve Apollo's designated trainer(s), Apollo shall have fifteen (15) calendar days to identify an alternate trainer. The EEOC shall have fifteen (15) calendar days from the date of receipt of the information described above to accept or reject the alternate trainer. In the event the EEOC does not approve Apollo's alternate trainer, the EEOC shall designate the trainer to be retained and paid for by Apollo.
19. Apollo agrees to provide the EEOC with any and all copies of pamphlets, brochures, outlines or other written materials provided to the participants ofthe training sessions. Even though the EEOC has approved ofor designated a trainer for trainings one year, it is not required to approve of or designate the same trainer for future training sessions.
20. Apollo shall certify to the EEOC in writing with five (5) business days after the trainings have occurred that the training has taken place and that the required personnel have attended. Such certification shall include: (i) the dates, location and duration of the trainings; (ii) a copy of the registry of attendance, which shall include the name and position of each person in attendance; and (iii) a listing ofall current employees, including temporary employees, as ofthe date of the training.
10

DISPUTE RESOLUTION 21. In the event that either party to this Decree believes that the other party has failed to comply with any provision(s) ofthe Decree, the complaining party shall notifY the other party ofthe alleged non-compliance within ninety (90) days ofthe alleged non-compliance and shall afford the alleged non-complying party ten (10) business days to remedy the non-compliance or to satisfy the complaining party that the alleged non-complying party has complied. Ifthe alleged non-complying party has not remedied the alleged non-compliance or satisfied the complaining party that it has complied within ten (10) business days, the complaining party may apply to the Court for appropriate relief
DURATION OF THE DECREE AND RETENTION OF JURISDICTION 22. All provisions ofthis Decree shall be in effect (and the Court will retain jurisdiction of this matter to enforce this Decree) for a period ofthree (3) years immediately following entry of the Decree, provided, however, that if, at the end of the three (3) years period, any disputes under Paragraph 16, above, remain unresolved, the term ofthe Decree shall be automatically extended (and the Court will retain jurisdiction of this matter to enforce the Decree) until such time as all such disputes have been resolved.
MISCELLANEOUS PROVISIONS 23. Each party to this Decree shall bear its own expenses, costs and attorneys' fees. 24. The terms of this Decree are and shall be binding upon the present and future representatives, agents, directors, officers, assigns, and successors of Apollo in their capacities as representatives, agents, directors and officers ofApollo, and not in their individual capacities. This paragraph shall not be construed as placing any limit on remedies available to the Court in the event that any individual is found to be in contempt for a violation of this Decree.
11

25. When this Decree requires the submission by Apollo ofreports, certifications, notices, or other materials to the EEOC, they shall be mailed to: Apollo Settlement, clo Ethan M. M. Cohen, Trial Attorney, Equal Employment Opportunity Commission, 500 West Madison Street, Suite 2800, Chicago, Illinois, 60661. When this Decree requires submission by the EEOC of materials to Apollo, they shall be mailed to: DanielV. Kinsella, Rooks, Pitts & Poust, lOS. Wacker Drive, Suite 2300, Chicago, 1L 60606.
12

For the EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W. Washington, D.C. 20507
Nicholas M. Inzeo Acting General Counsel
Gwendolyn Young Reams Associate General Counsel

For Scientific Colors, Inc.:
Rooks, Pitts & Poust 10 S. Wacker Drive, Suite 2300 Chicago, IL 60606

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

For Private Plaintiffs 'Norman Jones, Donald ,Newell;Nathaniel J. Bell, Harlan 1. Bennett, ,Terry Fuller, 'Douglas George, Jr., Thomas ,Heywood, Trent Perry, and, Franklin D. Thomas

""..c~~'..'!:7;()~-+,_-M._ _~itAW.~."

Gre

. Gochanour

II"""

Supervisory Trial Attorney

&-~~L

Ethan M. M. Cohen Trial Attorney

ENT~WW~
The Honorable DavidW. McKeague
United States District Judge

EXHIBIT A RELEASE AGREEMENT I, ~, for and in consideration of the sum of $XXXOOO.OO, payable to me pursuant to the terms ofthe Consent Decree entered by the Court in EEOC v. Scientific Colors, Inc., No. 00 C 0171 (N.D. Ill.), on behalf of myself, my heirs, assigns, executors, and agents, do hereby forever release, waive, remise, acquit, and discharge Scientific Colors, Inc. ("Apollo"), and all past and present shareholders, officers, agents, employees, and representatives of Apollo, as well as all successors and assignees of Apollo, from any and all claims and causes of action of any kind which I now have or ever have had under Title VII ofthe Civil Rights Act ofl964, as amended, 42 U.S.C. § 2000e et seq., as a result of or arising from the subject matter and claims which were or which could have been asserted in EEOC v. Scientific Colors, Inc., No. 00 C 0171.
Date
14

_ _ _ _ _ _ _ _, 2002
XXXXXXXXXXX XXXXXXXXXXX XXXXX,XXXXX

EXHIBITB

Re: EEOC v. Scientific Colors, Inc., No. 00 C 0171 (N.D. Ill.)

Dear Mr. XXXXXXXXX:

A Consent Decree resolving the above-referenced lawsuit was signed by the parties and entered by

the Court on

,2002. Pursuant to the terms ofthe Consent Decree, enclosed you will find a

copy of a Release to be signed by you.

In order to obtain any monetary reliefunder the Consent Decree in this case, you must sign the Release and return it to me. Please mail the signed Release to me as soon as possible at the following address:

Ethan M, M, Cohen Equal Employment Opportunity Commission 500 West Madison Street Suite 2800 Chicago, Illinois 60661

I have enclosed a pre-addressed envelope for your convenience. You may, of course, wish to make and keep a copy of the signed Release for your own records.

Ifyou have any questions about the Release or cannot sign and return the enclosed documents within seven days, please contact me at (312) 353-7568,

Sincerely,

Encls,

Ethan M. M. Cohen Trial Attorney

15

EXHIBITC NOTICE TO ALL APOLLO EMPLOYEES
This Notice is being posted pursuant to a Consent Decree entered by the federal court in EEOC v. Scientific Colors, Inc., No. 00 C 0171 (N.D. IIl.), resolving a lawsuit filed by the Equal Employment Opportunity Commission ("EEOC") against Scientific Colors, Inc., ("Apollo").
In its suit, the EEOC alleged that Apollo fostered or tolerated a working environment that was hostile to Black employees, in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"). Apollo denies these allegations.
To resolve the case, Apollo and the EEOC have entered in to a Consent Decree which provided, among other things, that:
1) Apollo paid monetary reliefto certain current and former employees;
2) Apollo will not discriminate on the basis of race in the future and will photograph and remove any racial graffiti if it should appear;
3) Apollo will not retaliate against any person because he opposed any practice made unlawful by Title VII, filed a Title VII charge of discrimination, participated in any Title VII proceeding, or asserted any rights under the Consent Decree;
4) Apollo will adopt and distribute to all employees a policy against racial harassment and will train all its employees regarding racial harassment and its policy.
The EEOC enforces the federal laws against discrimination in employment on the basis ofrace, color, religion, national origin, sex, age or disability. Ifyou believe you have been discriminated against, you may contact the EEOC at (312) 353-8195. The EEOC charges no fees and has employees who speak languages other than English. Ifyou believe you have been discriminated against you may contact the EEOC.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
This Notice must remain posted for three years from the date below and must not be altered, defaced or covered by any other material. Any questions about this Notice or compliance with its terms may be directed to: Apollo Settlement, EEOC 500 West Madison Street, Suite 2800, Chicago, Illinois 60661.

Date

The Honorable David McKeague District Judge

16

AO 450(Rev. 5/85)Judgmcnt in a Civil Case
United States District Court
Northern District of Illinois
Eastern Division

Nonnan Jones,etal

JUDGMENT IN A CIVIL CASE

v.

Case Number: 99 C 1959

Scientific Colors, Inc. d/b/a Apollo Colors

erdict. This action came before the Court for a trial by jury. The issues have been

tried and the JU

d its verdict.

o Decision by Court. This action came to tna

before the Court. The issues

have been tried or heard and a decision has been rendered.

IT IS HEREBY ORDERED AND ADJUDGED that in the interest of resolving this matter, and as a result of having engaged in settlement negotiations, the parties have agreed that this action should be finally resolved by entry of this Consent Decree. This Decree fully and finally resolves any and all issues and claims arising out of the Complaint filed by the EEOC in this action. The Court finds that the tenns ofthis Decree are adequate, fair, reasonable, equitable, and just. Apollo shall pay the gross sum of one million eight hundred twenty five thousand dollars (1,825,000) to be distributed as set forth in the Consent Decree. Each party to this Decree shall bear it own expenses, costs and attorneys' fees.

Date: 312212002

Michael W. Dobbins, Clerk of Court

 
 Case 1:00-cv-00171 Document 93 Filed 04/24/2002 Page 1 of 3

r Minute Order Fonn (06197) ~

· .c......
~r~~~
'"i.
United States District (:ourt, Northern District of Illinois

',:.,...+,."/;:: ..•• ,
N~ipc:9f Assigned Judge . :~~)~~,~.gistratc Judge
: I q"~;;~'~: :.'.~:':.~ -~\
CASE NUMBER

Marvin Aspen 00 C 171

Sitting Jndge if Other than Assigned Judge
DATE

4/24/2002

CASE TITLE
MonON:

EEOC vs" Scientific Colors
[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature of the motion being presented.]

. DOCKET ENTRY:

(1) o

Filed motion of [use listing in "Motion" box above.]

(2) o

Brief in support of motion due _ __

(3)

D

Answer brief to motion due___" Reply to answer brief due___.

(4)

D

(5) o

(6) o

(7) o

Ru1inglHearing on ___ set for ___ at _ __ Status hearing[heldlcontinued to] [set for/re-set for] on _ _ _ set for _ _ _ at _ __ Pretrial conference[heldlcontinued to] [set for/re-set for] on ___ set for ___ at ___" Trial[set forlre-set for] on ___ at ___.

(8)

D

(9) o

[Bench/Jury trial] [Hearing] held/continued to ___ at ___. This case is dismissed [with/without] prejudice and without costs[by/agreementlpursuant to]
o FRCP4(m) 0 General Rule 21 0 FRCP41(a)(1) 0 FRCP41(a)(2).

(10) •

[Other docket entry] It is ordered, consistent with the stipUlation, that any an all claims of plaintiff

Allen Wright against defendant Scientific Colors in these two consolidated cases shall he and are hereby

dismissed with prejudice.

• (11)

[For further detail see order attached to the original minute order.]

No notices required, advised in open court.

No notices required.

,/ Notices mailed by judge's staff.

Notified counsel by telephone.

Docketing to mail notices.

Mail AO 450 form.

Copy to judge/magistrate judge.

courtroom

GL

deputy's

initials

- . . '. ~..~ ~ ~
U:. ~. ': Dateltinid f~ceived in
central Clerk's Office

mailing deputy initials

Case 1:00-cv-00171 Document 93 Filed 04/24/2002 Page 2 of 3

.'-' c·. \" •. '."r . :-:.~

r,

~'.

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

NORMAN JONES, et al.

Plaintiffs,

HON. DAVID W. McKEAGUE*

v.
SCIENTIFIC COLORS, INC., d/b/a APOLLO COLORS, INC.,

Case No. 99 C 1959

Defendant.
------------------------------/
UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION/

Case No. 00 C 0171

Plaintiff,

v.

SCIENTIFIC COLORS, INC., d/b/a

APOLLO COLORS,

, :',' ;,' .; .

De f endant. /~ ------------------------------/

ORDER OF PARTIAL DISMISSAL The Court having been apprised that plaintiff Allen Wright has entered into a settlement agreement with defendant Scientific Colors, Inc. and has stipulated to the dismissal of his claims; and The Court having duly considered the parties' stipulation to dismiss, attached, and being otherwise fully in the premises; now therefore/

*united States District Judge, Western District of Michigan, sitting by designation.

Case 1:00-cv-00171 Document 93 Filed 04/24/2002 Page 3 of 3

IT IS HEREBY ORDERED, consistent with the stipulation, that any and all claims of plaintiff Allen Wright against defendant Scientific Colors in these two consolidated cases shall be and are hereby DISMISSED with prejudice.

Dated: April ~ 2002

DAVID W. McKEAGUE UNITED STATES DISTRICT JUDGE

-2-

 
 Case 1:00-cv-00171 Document 94 Filed OS/24/2002 Page 1 of 3

Min"," Order FCml (06/97)

United States District Court, Northern District of Illinois

Name of Assigned Judge or Magistrate Judge
CASE NUMBER

David W.McKeague 00 C 171

Sitting Judge if Other than Assigned Judge
DATE

5/24/2002

CASE TITLE
MOTION:

EEOC vs. Scientific Colors dba Apollo Colors
[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature of the motion being presented.]

DOCKET ENTRY:

(1) o

Filed motion of [ use listing in "Motion" box above.]

(2) o

Brief in support of motion due _ _ _.

(3) o

Answer brief to motion due_ _ _. Reply to answer brief due_ _ _.

(4) o

RulingIHearing on ___ set for ___ at _ __

(5)

o

Status hearing[heldlcontinued to] [set for/re-set for] on _ _ _ set for _ _ _ at _ _ _.

(6) o

Pretrial conference[heldlcontinued to] [set for/re-set for] on _ _ _ set for _ _ _ at _ _ _ .

(7) o

Trial[ set for/re-set for} on _ _ _ at _ _ _.

(8) o

[Bench/Jury trial] [Hearing] held/continued to _ _ _ at _ _ _.

(9) o

This case is dismissed [with/without] prejudice and without costs[by/agreementlpursuant to]
o FRCP4{m) 0 General Rule 21 0 FRCP41(a)(I) 0 FRCP41(a)(2).

(10) •

[Other docket entry] Enter final order of dismissal. All outstanding claims of plaintiffs are hereby

dismissed with prejudice.

• (11 )

[For further detail see order attached to the original minute ordeL]

No notices required, advised in open court.
No notices required.

Notices mailed by judge's staff.

Notified counsel by telephone.

Docketing to mail notices.

Mail AO 450 form.

Copy to judge/magistrate judge.

courtroom

GL

deputy's

initials

ol Uolre.l.d~ rUe1ted in central Clerk's Office

Document

I'j).lm1>er

number of notices

,;"

oc n

JUN 0 7 2002

9·/ d.tedocketcd ;_______

A, Vj 1

5/24:B
dale mailed nOlice

GL

mailing deputy initials

Case 1:00-cv-00171 Document 94 Filed OS/24/2002 Page 2 of 3

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

NORMAN JONES, et al.

Plaintiffs,

HON. DAVID W. McKEAGUE*

v.
SCIENTIFIC COLORS, INC., d/b/a APOLLO COLORS, INC.,

Case No. 99 C 1959

Defendant. --------------------------/
UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Plaintiff,
v.
SCIENTIFIC COLORS, INC., d/b/a APOLLO COLORS,

DOCKETE~
JUN 0 7 200?

Defendant. --------------------------/
FINAL ORDER OF DISMISSAL

On March 22, 2002, judgment entered pursuant to Consent

ueG;L"ee, rOClol-...rin'.::l all cIa i rnS in uni ted Sta tes Equa~ Employmen t

opportunity Commission v. Scientific Colors, Inc., Case No. 00 C

0171. Further, the Court has recently received stipulations to

dismiss all outstanding claims in the consolidated action Norman

Jones, et al. v. Scientific Colors, Inc., Case No. 99 C 1959. In

*United States District Judge, Western District of Michigan, sitting by designation.

Case 1:00-cv-00171 Document 94 Filed OS/24/2002 Page 3 of 3

accordance with these stipulations, filed contemporaneously

herewith, all outstanding claims of plaintiffs Norman Jones, Terry

Fuller, Douglas George, Jr., Thomas Haywood, Harlan Bennett, Donald

Newell, Nathaniel Bell, Trent Perry, and Franklin Dale Thompson are

hereby DISMISSED with prejudice."

Accordingly, these two

consolidated actions are closed.

IT IS SO ORDERED.

Dated: May~, 2002

DAVID W. McKEAGUE UNITED STATES DISTRICT JUDGE

lThe claims of plaintiff Allen Wright were dismissed per stipulation by order dated April 24, 2002. The claims of plaintiff Derrick Lee were dismissed by summary judgment order on January 9, 2002. Further, plaintiff Derrick Lee's subsequent motions for leave to file a response to defendants' summary judgment motion instanter and to vacate the summary judgment ruling were denied as moot pursuant to minute order of March 22, 2002.

 
 Case 1:99-cv-O 1959 Document -a5 Filed 057 147200 I Page 1 of 6

Minute Order Fonn (06/97)

United States District Court, Northern District of Illinois

Name of Assigned Judge or Magistrate Judge
CASE NUMBER

David W. McKeague 99 C 1959

Sitting Judge if Other than Assigned Judge
DATE

5/14/2001

CASE TITLE
MOTION:

Jones,etal vs. Scientific Colors,etal
[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature of the motion being presented.J

DOCKET ENTRY:

(1) o

Filed motion of [use listing in "Motion" box above.]

(2) o

Brief in support of motion due _ _.

(3) o

Answer brief to motion due___., Reply to answer brief due_ _.

(4) o

RulingtHearing on _ _ set for _ _ at _ __

(5) o

Status hearing[heldlcontinued to] [set for/re-set for] on _ _ set for _ _ at _ __

(6) o

Pretrial conference[heldlcontinued to] [set for/re-set for] on _ _ set for ___ at _ __

(7) o

Trial[set for/re-set for] on _ _ at _ _'

(8) o

[Bench/Jury trial] [Hearing] held/continued to _ _ at _ _.

(9) o

This case is dismissed [with/without] prejudice and without costs[by/agreementlpursuant toJ
o FRCP4(m) 0 General Rule 21 0 FRCP41(a)(1) 0 FRCP41(a)(2).

(10) • [Other docket entry] The Court concludes the magistrate judge's order denying the motion to compel is contrary to law and must be set aside. The EEOC's motion to compel production of documents is granted. With due respect for the work privilege doctrine, however, the Court will require defendant Scientific Colors to submit all documents described in the "privilege log" first to the court for in camera review by the magistrate judge. Defendant's submission shall be made not later than 5/23/01. The magistrate judge shall undertake this review and make disclosures to the EEOC no later than 6/1/01.

(11) •

[For further detail see order attached to the original minute order.]

No notices required, advised in open court.

No notices required .

./ Notices mailed by judge's staff.

Notified counsel by telephone.

Docketing to mail notices. Mail AO 450 form. Copy to judge/magistrate judge.

courtroom

GL

deputy's

initials

rO-7
nLED Fo'k OOCf\CTING
01 MA Y2t AM 9: 0I
Date/time received in central Clerk's Office

5/18/2001 date mailed notice
GL
mailing deputy initials

Case I:99-cv-O 1959 Document 85 Filed 057T47200r~nuPage 2 of 6

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

NORMAN JONES, et al.

Plaintiffs,

v.

Case No. 99 C 1959

SCIENTIFIC COLORS, INC., d/b/a APOLLO COLORS, INC.,

HON. DAVID W. McKEAGUE*

Defendant,

and

UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Case No. 00 C 0171

Plaintiff,

v.

SCIENTIFIC COLORS, INC., d/b/a APOLLO COLORS,

Defendant.
----------------------------_/
ORDER ON OBJECTIONS TO MAGISTRATE JUDGE'S ORDER

On April 3, 2001, Magistrate Judge Ian H. Levin issued a bench

ruling denying the motion of plaintiff Equal Employment Opportunity

Commission to compel production of documents. The EEOC had sought

to compel defendant Scientific Color's production of documents

generated by its undercover investigation and handwriting analysis

undertaken in response to employees' complaints of racial

*united States District Judge, Western District of Michigan, designation.

Case I:99-cv-0 1959 Document 85 Filed 057 147200 I Page 3 of6
harassment. The magistrate judge denied the motion based on his conclusion that the documents were protected by the work product privilege. Now before the Court are the EEOC's objections to the magistrate judge's ruling.
The magistrate judge's ruling may be modified or set aside only if ~clearly erroneous or contrary to law." Fed R. Civ. P. 72(a) i 28 U.S.C. § 636(b) (1) (A). The EEOC contends the ruling is contrary to law in that it fails to recognize that, under the circumstances of this case, Scientific Colors has waived its right to rely on the work product privilege.
Pursuant to the work product doctrine, essentially codified at Fed. R. Civ. P. 26(b) (3), documents prepared in anticipation of litigation are subject to discovery only on a showing of necessity. And where necessity is shown and production is ordered, ~the court shall protect against disclosure of the mental impressions, conclusions, opinions or legal theories of an attorney or other representative of a party concerning the litigation. Fed. R. Civ. P. 26(b) (3). Defendant is said to have waived this privilege as a result of its assertion of an affirmative defense in response to plaintiffs' Title VII claims.
Among its affirmative defenses, defendant has averred that "plaintiff's claims are barred because the defendant exercised reasonable care to prevent and promptly correct harassing behavior
" See Burlington Industries, Inc. v. Ellerth, 524 U.S. 742,
-2 -

Case 1:99::'cv-01959 Document 85 Filed 05/14/200 1 Page 4 of 0
764-65 (1998) (recognizing legitimacy of the affirmative defense); Faragher v. Boca Raton, 524 U.S. 775, 807 (1998) (same). By asserting this defense and by professing its intention to rely on its undercover investigation in support of the affirmative defense, the EEOC argues defendant has placed the reasonableness of its investigation at issue, opened the door to discovery, and impliedly waived any work product privilege. The argument finds substantial support in the case law. See Madanes v. Madanes, 199 F.R.D. 135, 150 (S . D. N. Y. 2001); Robinson v. Time Warner I Inc., 187 F. R. D. 144, 146 (S.D. N.Y. 1999); Brownell v. Roadway Package System, Inc., 185 F.R.D. 19, 25-26 (N.D. N.Y. 1999); Peterson v. Wallace Computer Services, Inc., 984 F.Supp. 821, 825-26 (D. Vt. 1997); Johnson v. Rauland-Borg Corp., 961 F.Supp. 208, 210-11 (N.D. Ill. 1997); Harding v. Dana Transport, Inc., 914 F.Supp. 1084, 1098-99 (D. N.J. 1996).
Scientific Colors maintains, however, that it has stopped short of waiving the privilege by virtue of its stipulation (1) that it does not presently intend to use the contents of its investigation, and (2) that it will disclose to the EEOC those contents which it might later decide it does want to use. The magistrate judge agreed with Scientific Colors that this stipulation was sufficient to preserve the privilege. This Court cannot agree. The Court finds the stipulation inadequate for two reasons.
-3-

Case 1:99-cv-01959 Document 85 Filed 057147200 I Page 5 of6
Even as it disavows any present intention to use the contents of its investigation in support of its affirmative defense, Scientific Colors insists on the right to rely on the fact that it undertook the investigation as evidence of its reasonable efforts to prevent and correct racial harassment. Yet, in evaluating the reasonableness of defendant's investigatory and remedial conduct, the finder of fact must necessarily consider such factors as timeliness, thoroughness and employer bias. See Peterson, 984 F.Supp. at 826. Unless notes and memoranda produced in the course of the investigation are disclosed to the EEOC I its ability to test the reasonableness of the investigation will be unfairly impaired. Id.i Brownell, 185 F.R.D. at 25.
Second l in connection with the second element of defendant's stipulation, the Court notes that discovery is presently scheduled to close on June 1, 2001. Defendant's open-ended reservation of the right to change its mind on using the contents of the investigation l and to then produce relevant documents I offers the EEOC no assurance of a timely opportunity to conduct meaningful discovery and trial preparation. Again l the terms of defendant's stipulation result in fundamental unfairness.
Accordingly, the Court concludes the magistrate judge's order denying the motion to compel is contrary to law and must be set aside. Defendant has, by virtue of its affirmative defense, impliedly waived its work product privilege. Its stipulation is
-4-

Case 1.99-cv-O 1959 Document 85 Filed 05/14/2001 Page 6 of6
ineffective to preserve the privilege. The EEOC's motion to compel production of documents will therefore be granted. With due respect for the work privilege doctrine, however, the Court will require defendant Scientific Colors to submit all documents described in the "privilege log" first to the Court for in camera review by the magistrate judge with due regard for protection against unnecessary disclosure of counsel's mental impressions, opinions and legal theories. See Peterson, 984 F.Supp. at 826. That is, to the extent the subj ect documents contain otherwise privileged matters which are not relevant to defendant's affirmative defense, they will not be disclosed to the EEOC. Defendant's submission of documents to the Court shall be made not later than May 23, 2001. The magistrate judge shall undertake this review and make the appropriate disclosures to the EEOC not later than June 1, 2001.
IT IS SO ORDERED.

Dated: May fLt, 2000

DA~MCKEAGUE UNITED STATES DISTRICT JUDGE

-5-

 
 201 F.Supp.2d 820 (2001)
Norman JONES, et al., Plaintiffs, v.
SCIENTIFIC COLORS, INC., d/b/a APOLLO COLORS, INC., Defendant, and United States Equal Employment Opportunity Commission, Plaintiff, v. Scientific Colors, Inc. d/b/a Apollo Colors, Defendant.
Nos. 99 C 1959/00 C 171.
United States District Court, N.D. Illinois, Eastern Division.
November 5, 2001.
821 *821 John Grover Foreman, Barbara Naretto Petrungaro, Christian G. Spesia, John Matthew Spesia, Spesia & Ayers, Joliet, IL, Dinah Lennon Archambeault, Spesia, Ayers, Ardaugh & Wunderlich, Joliet, IL, E. Kent Ayers, Spesia, Ayers & Ardaugh, Joliet, IL, Jimmie L. Jones, J. L. Jones & Associates, Ltd., Chicago, IL, for Plaintiffs.
Derrick Lee, Joliet, IL, Pro se.
Ian Matthew Sherman, Daniel V. Kinsella, David L. Miller, Eric John Essley, Rooks, Pitts & Poust, Chicago, IL, for Defendant.
MEMORANDUM OPINION AND ORDER
LEVIN, United States Magistrate Judge.
Before the court is the Jones Plaintiffs' Amended Motion for Sanctions and to Disqualify.
The subject motion concerns undercover investigations performed by Defendant (Apollo Colors) at its Rockdale, Illinois plant and the production of the reports of these investigations. Plaintiffs' threshold assertion is that Mr. Dan Kinsella and his law firm, Rooks, Pitts & Poust (Defendant's counsel) as well as Apollo's management directed covert undercover investigations of Apollo employees in which investigators made direct contact with two of Plaintiffs; namely, Franklin Thompson and Douglas George. Plaintiffs argue that these direct contacts are in contravention of the Rules of Professional Conduct prohibiting contact with an individual represented by counsel. In addition, Plaintiffs assert that Defendant withheld the production of documents containing the reports of the covert investigations until May 23, 2001, when Defendant produced for the first time documents numbered 31167 to 32017. Pls.' Am. Mot. at 1-2.
822 *822 In this motion, Plaintiffs present four arguments.
(1) Plaintiffs' first argument is that Defendant violated the Rules of Professional Conduct by making contact with a person represented by counsel. Pls.' Am. Mot. at 2. Specifically, Local Rule ("LR") 83.54.2 provides:
During the course of representing a client a lawyer shall not communicate or cause another to communicate [on the subject of representation] with a party the lawyers knows to be represented by another lawyer in that matter unless the first lawyer has obtained the prior consent of the lawyer representing such other party or as may otherwise be authorized by law.[1]
In addition, LR 83.58.4(a) provides that a lawyer shall not: (1) violate or attempt to violate the Rules of Professional Conduct; (2) induce another to engage in conduct, or give assistance to another's conduct, when the lawyer knows that conduct will violate these rules; (3) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; or (4) engage in conduct that is prejudicial to the administration of justice. Id. at 2-3.

Plaintiffs' cite case law indicating that the purpose of the professional responsibility rules stated, supra, is to prevent opposing counsel from taking advantage of the other party and to protect a party from the over-reaching of opposing counsel. Blanchard v. EdgeMark Fin. Corp., 175 F.R.D. 293, 301 n. 10 (N.D.Ill.1997); Pls.' Am. Mot. at 3. In Midwest Motor Sports, Inc. v. Arctic Cat Sales, 144 F.Supp.2d 1147, 1158 (D.S.D.2001), the court recognized that, "[a] lawyer may not direct an investigative agent to communicate with a represented person in circumstances where the lawyer herself would be prohibited from doing so." (citations omitted). The court held that the undercover investigation conducted by attorneys for a litigant, which included direct contact with the opposing party, violated the Rules of Professional Conduct. (Pls.' Am. Mot. at 3-4.) Moreover, Plaintiffs cite In the Matter of Searer, 950 F.Supp. 811 (W.D.Mich. 1996) in which the District Judge herein interpreted Rule 4.2 of the Michigan Rules of Professional Conduct (quotation on page 4, Pls.' Am. Mot.).
(2) Plaintiffs' second argument is that Mr. Kinsella and his law firm wilfully violated the Rules of Professional Conduct by directing an investigation that included direct contact with Plaintiffs. Pls.' Am. Mot. at 4. Plaintiffs contend that beginning in January, 1999, Defendant and its attorneys initiated an investigation of Apollo employees. (Ex. B, Report of January 26, 1999). Pls.' Am. Mot. at 4. Defendant's counsel has described the investigation as follows:
There's no question this was in anticipation of litigation. We were trying to develop a legal theory of defense at that time. That's why we hired these undercover employees, that why we got the reports. Very Simple. Ex. C (Transcript of Proceedings from April 3, 2001), p. 9. (Pls.' Am. Mot. at 4.)
On April 22, 1999, Plaintiffs' counsel warned Rooks, Pitts & Poust that, "I have been informed that Apollo is conducting interviews at the Rockdale Plant. Please be advised that we have not nor will we authorize any 823 contact with our clients." Ex. D (copy of letter); Pls.' Am. Mot. at 5.[2] Despite the letter, Plaintiffs allege that *823 Defendant and its counsel continued the undercover investigation. Pls.' Am. Mot. at 5. In addition, the investigators completed written reports and directed them to Mr. Kinsella and selected management at Apollo Colors.[3]Id.
Plaintiffs assert that the covert investigation targeted direct contact with Plaintiffs to obtain information and facts pertinent to their claims (namely, racially motivated graffiti and conduct). Pls.' Am. Mot. at 5. Plaintiffs cite to eight specific incidents where the investigative reports indicate that the investigator spoke with Mr. George and/or Mr. Thompson. Id. at 5-6. For example:
February 29, 2000: The investigation was re-initiated on 2/25/00, when our investigator arrived at the work place at 7:00 p.m. Our investigator talked to Doug (George) about the purchasing of drugs and he stated that he had been out of the business as of January 1, 2000. He told everyone in the room that he had stopped selling. Ex. G, p. 20534-20535. Pls.' Am. Mot. at 6.
Plaintiffs contend that Mr. Kinsella and his law firm met with investigators and were given verbal reports. Pls.' Am. Mot. at 7. Mr. Kinsella was also briefed by investigators during telephone conversations. Ex. P, p. 31491. (Pls.' Am. Mot. at 7.) Moreover, Defendant's billing statements reflect a four hour "client office meeting" on March 29, 2000. Ex. O, p. 20005 (Pls.' Am. Mot. at 7.) Plaintiffs, thus, argue that Defendant has the benefit of illegally obtained statements. (Pls.' Am. Mot. at 7.)
(3) Plaintiffs third argument is that Defendant and its counsel concealed ethical violations, wrongly withheld documents, and produced a misleading and false privilege log. Pls.' Am. Mot. at 7. Plaintiffs state that Defendant wrongly withheld documents because Defendant responded to Plaintiffs' first request for production of documents ("[a]ll documents relating to all inquiries or investigations conducted as a result of each plaintiff's claim or allegation of discrimination" (par. 19)) by objecting based on work product and attorney-client privileges. Ex. R; Pls.' Am. Mot. at 7-8. Moreover, Defendant stated that "[it] has provided documents that it maintained in response to claims of discrimination that preceded plaintiffs' formal charges of discrimination as documents numbered XXXXX-XXXXX." Ex. R; Pls.' Am. Mot. at 8. When Defendant supplemented its response to the first document request, it did not change its answer to paragraph 19. Ex. T; Pls.' Am. Mot. at 8.

Plaintiffs assert that Defendant's discovery responses are false and misleading because Defendant had thousands of pages of documents that were responsive to paragraph 19. Pls.' Am. Mot. at 8. Plaintiffs contend that Defendant withheld documents numbered 31167 to 32017 until May 23, 2001 and provided a false and misleading privilege log because the May 31, 2001 log omitted reference to document numbers 31167 to 32017. Pls.' Am. Mot. at 8. Plaintiffs, therefore, assert that Defendant and its counsel are subject to sanctions under Rule 37(b)(2) for withholding documents and producing a misleading and false privilege log. Pls.' Am. Mot. at 9,16 (sanctions listed on page 9). (Rule 26(b)(5) requires the disclosure of documents for which a privilege is claimed.) Id. at 9.
(4) Plaintiffs' fourth argument is that Mr. Kinsella and his law firm should be disqualified and otherwise sanctioned 824 due to their wilful violation of LR. 83.54.2 (plus Plaintiffs' counsel did not authorize Defendant *824 to have any
contact with their clients). Ex. C (Transcript of April 3, 2001), p. 10; Ex. D; Pls.' Am. Mot. at 10. Plaintiffs argue that sanctions are warranted because of the court's July 10, 2001 order, specifically finding that "Attorney Kinsella has acknowledged that the undercover investigation was initiated at his instance." Order at 3. Pls.' Mot. at 2, 10. Moreover, the court further recognized that "Mr. Kinsella was involved in directing the investigation." Id. Plaintiffs, further, contend that because Defendant and its counsel wilfully withheld investigative reports, concealed their ethical violations for two years, and made misrepresentations regarding the covert investigation, sanctions should be imposed on Defendant and its counsel. Pls.' Am. Mot. at 10.
Plaintiffs argue that disqualification is necessary to restore integrity to the case and ensure a just and fair trial. Pls.' Am. Mot. at 10. Plaintiffs cite to case law instructing that "[d]isqualification may be ordered as a remedy for a violation of Rule 4.2." Weeks v. Independent Sch. Dis. No. I-89, 230 F.3d 1201, 1211 (10th Cir.2000) (citations omitted); Pls.' Am. Mot. at 10-11. According to another court, an attorney should be disqualified for violating the rules of professional conduct "when the integrity of the adversarial process is at stake." Papanicolaou v. Chase Manhattan Bank, 720 F.Supp. 1080, 1083 (S.D.N.Y.1989)(citing Bd. of Ed. v. Nyquist, 590 F.2d 1241, 1246 (2nd Cir.1979)); Pls.' Am. Mot. at 11. The court reasoned:
Although breaches of Model Rule 4.2 might not necessarily require disqualification, courts considering violations of the Rule cannot abdicate their roles as guarantors of fair process. If a lawyer's violation of Model Rule 4.2 might taint the trial, the lawyer should be disqualified. Id. at 1084; Pls.' Am. Mot. at 11.
The court also recognized that where information obtained in violation of Rule 4.2 goes to the heart of a lawsuit, an attorney had to be disqualified "to protect [the adverse party] from any unfair advantage [they] might have achieved by the improper meeting." Id. at 1085 (citations omitted); Pls.' Am. Mot. at 11.
Plaintiffs assert that Mr. Kinsella and his law firm gained an unfair advantage by virtue of information that they obtained with respect to Plaintiffs through the undercover investigations. Pls.' Am. Mot. at 11. Plaintiffs argue that the evidence obtained in violation of Rule 83.54.2 goes to the heart of the lawsuit. Id. Plaintiffs, thus, argue that because they do not know the extent of the information Defendant and its counsel obtained as a result of the investigations, that nothing short of disqualification can "protect [Plaintiffs] from any unfair advantage [Mr. Kinsella, Pitts & Poust] might have achieved by the improper meeting(s)." Nyquist, 590 F.2d at 1246.
Plaintiffs argue that Defendant's affirmative defense that it "... exercised reasonable care to prevent and promptly correct harassing behavior and that Plaintiffs reasonably failed to take advantage of the preventive and corrective opportunities or to avoid harm otherwise" should be stricken pursuant to Rule 37(b)(2). Pls.' Am. Mot. at 12; Ex. V (Amended Answer and Affirmative Defenses), p. 33, par. 7. Plaintiffs assert that the affirmative defense should be stricken because Defendant and its counsel impaired Plaintiffs' ability to conduct discovery and prepare their case by withholding documents and creating a false privilege log. Pls.' Am. Mot. at 12. Plaintiffs deposed Defendant's employees without a full understanding of the evidence. Id. Moreover, the information pertinent to 825 Defendant's affirmative defense was not produced until eight days prior to *825 the close of discovery. Id. Plaintiffs, therefore, assert that striking Defendant's affirmative defense pursuant to Rule 37(b)(2)(C) is an appropriate sanction. Id. at 12-13. Crown Life Ins. Co. v. Craig, 995 F.2d 1376 (7th Cir.1993)(court upheld default judgment for wilful violation of discovery rules).

Plaintiffs contend that Defendant and its counsel should be ordered to pay for all discovery. Pls.' Am. Mot. at 13. Plaintiffs assert that they did not have the investigative reports (produced on May 23, 2001) containing racially motivated and discriminatory comments when they conducted depositions of Defendant's management, former employees, and experts. Pls.' Am. Mot. at 13-14. Plaintiffs cite to nine incidents of racially motivated and discriminatory conduct identified in the reports that they were not aware of when they completed discovery. Id. Plaintiffs assert that pursuant to Rule 37(b)(2), they should be awarded attorney's fees and costs for all depositions taken to date. Id. at 14-15. In addition, Plaintiffs assert that Defendant should be liable for all continuing discovery costs. Id. Plaintiffs also request additional time to conduct discovery (discovery cutoff was June 1, 2001) to name additional witnesses and supplement experts' reports. Id. at 15-16.
Plaintiffs argue that any evidence obtained in violation of Rule 83.54.2 (e.g., information improperly withheld and falsely concealed, Plaintiffs' statements to investigators, any information conveyed to Defendant and its counsel), and not produced until May 23, 2001 should not be introduced. Pls.' Am. Mot. at 15. Plaintiffs, therefore, assert (1) that Defendant should be sanctioned under Rule 37(b)(2)(B) for withholding documents and producing a misleading and false privilege log (asserted, supra, in argument (3) and (2) that additional sanctions (listed on p. 17)) should be imposed by the court. Pl.'s Am. Mot. at 17.
I. Defendant's Memorandum in Opposition to Plaintiffs' Amended Motion for Sanctions and to Disqualify.
Defendant asserts that Plaintiffs' amended motion ignores or intentionally overlooks numerous facts and circumstances that they either knew about or should have known about. Def.'s Mem. at 2. For instance, Plaintiffs were aware of the May 24, 2001 deposition of Mr. Perry Myers, the owner of the detective agency, Myers Service, Inc. ("Myers") who performed the undercover investigation. Id. Defendant asserts that, in his deposition, Mr. Myers demonstrated that there was no factual basis for the Plaintiffs' statements concerning Mr. Kinsella. Id. Defendant also contends that Plaintiffs never took depositions of any other individuals who performed the undercover investigations. Id. Moreover, Plaintiffs fail to mention that the undercover reports were disclosed before May 23, 2001 when Defendant asserted a work product privilege regarding them. Id. The District Judge, however, subsequently, found a waiver of the work product privilege based on one of Defendant's affirmative defenses, and subsequently, after the court's in camera inspection, the undercover reports were produced on May 23, 2001. Id.
Undercover Investigation
The undercover investigation began in later 1998 or early 1999 when Mr. John Ott, Apollo's Human Resource Director, contacted Mr. Myers to set up a meeting to discuss investigative work. Ex. A p. 8, 20-21; Def.'s Mem. at 3. At the initial meeting, Mr. Myers met with Mr. Ott, Mr. Tom Rogers, Apollo's President, and Mr. Bruce Wright, 826 Apollo's Vice-President. The purpose of the meeting was to discuss the racist activities at Apollo and the drug *826 use going on at the Rockdale plant. Def.'s Mem. at 3-4. The Apollo officers decided that Myers would provide undercover investigators who would work as if they were Apollo employees. Id. at 4. Mr. Myers testified that other than a description of the incidents that occurred at Apollo, he was not given guidance as to how the investigation should be directed. Ex. A, p. 51; Def.'s Mem. at 4. Furthermore, Mr. Kinsella was not present at this meeting. Ex. A, pp. 20-22; Def.'s Mem. at 3.
Myers performed undercover investigations during two different time periods: 1999 (January and February) and 2000 (January and February through August). Ex. A, pp. 46, 49, 66-67; Def.'s Mem. at 4. Mr. Myers testified that in addition to the initial meeting, he had spoken with Mr. Ott (six or seven times), Mr. Wright (two to four times) and Mr. Rogers (one time). Ex. A, pp. 89-92; Def.'s Mem. at 4. Mr. Myers testified that he spoke with Mr. Kinsella in late 1998, early 1999:
Q. Okay. What was the nature of that initial conversation? What did he say to you and what did you say to him?

A. Again it would have been more towards the focus of the investigation, what we needed to look for, kind of things we needed to uncover, some of the legalities of what we were doing, making sure that we were aware of the issues and 0907
Q. What was the focus of the investigation as explained to you by Mr. Kinsella?
A. To determine who was using or who was writing the graffiti and doing the racial graffiti and other signs at the company.
Q. And in the conversation with Mr. Kinsella, were you directed to any parts of the plant, any individuals who were more likely to give useful information or who were suspects, anything of that nature?
A. Not that I could recall. I think it was pretty open, you know, keep your eyes open, it could be anyone kind of an approach to this, so I don't recall that specific individuals were named.
Q. Other then that original conversation where you are given direction from Mr. Kinsella to look for who was behind the racial graffiti and to take a general approach, were you ever given any different direction by Mr. Kinsella?
A. You mean change the direction of the focus of the undercover?
Q. Correct.
A. No, not that I can recall. Ex. A, pp. 94-95 (emphasis added).
The undercover investigator who worked at Apollo from February, 2000 through August, 2000 was Mr. Dorsey Williams. Def.'s Mem. at 6. Mr. Williams spoke with Mr. Kinsella at a meeting in February, 2000, (Mr. Ott was also present), but neither Mr. Kinsella nor Mr. Ott mentioned the names of any individuals whom Mr. Williams should talk to or gather information about. Id.
Several weeks after the February, 2000 meeting, Mr. Ott contacted Mr. Williams and told him that there was information that Mr. George was selling drugs in the workplace. Def.'s Mem. at 6. Mr. Williams spoke with Mr. George about purchasing drugs and then later, about other matters. Ex. B, par. 6; Def.'s Mem. at 6.
In May, 2000, Mr. Marty Mroz, Myers' director of outside investigations, informed Mr. Williams that there had been 827 a vandalism incident in connection with Mr. Thompson's locker that involved racial *827 overtones. Def.'s Mem. at
6. Mr. Ott provided the information regarding Mr. Thompson directly to Mr. Mroz via a May 26, 2000 fax which was, subsequently, passed on to Mr. Williams. Ex. C, par. 7; Def.'s Mem. at 7. Mr. Williams spoke with Mr. Thompson regarding the incident. Def.'s Mem. at 6. Mr. Mroz, however, did not meet with or communicate with Mr. Kinsella regarding this incident or any other part of the investigation. Ex. C, par. 6; Def.'s Mem. at 7.
Defendant argues that the individuals, who were involved in the investigation in the year 2000, confirm that Mr. Kinsella never directed that specific individuals; namely, Mr. George and Mr. Thompson, should be spoken to or contacted. Def.'s Mem. at 7. Moreover, Apollo's management was deposed and testified that the decision to hire outside investigators was made to ascertain if there was any wrongdoing taking place within the plant (e.g., thefts, incidents of racial discrimination, drug activity, etc.). Def.'s Mem. at 7. Furthermore, at his deposition, President Rogers testified:
Q. Whose idea was it to hire professional investigators?
A. It may have been mine. We discussed it collectively and talked about what we could do. (Ex. F, pp. 131-32.)

Reports of the Undercover Investigation
Defendant asserts that it disclosed the existence of the undercover investigation in its amended responses to Plaintiffs' first request for production of documents (which also included a letter, dated April 23, 1999, from Mr. Rogers to the FBI stating that in response to racial graffiti, Apollo had hired undercover investigators) no later than February 7, 2000 (not May 23, 2001). Exs. H, I; Def.'s Mem. at 8-9. Defendant, however, raised an objection (work product) to producing all documents relating to investigations conducted "as a result of each plaintiff's claim or allegation of discrimination." Ex. H, par. 19; Def.'s Mem. at 9. Defendant contends that it produced numerous documents (thousands of pages) of its internal investigations and that the undercover investigation was extraordinary and not considered by Defendant when it responded to Plaintiffs' first request for production. Id.
Defendant asserts that as subsequent discovery took place, it responded to other requests by objecting to the production based on the work product privilege (i.e., Plaintiffs' second request for production) and by determining whether the request was subject to production (i.e., information regarding the investigation of racial graffiti 0907 Mr. Rogers's letter to FBI). Ex. N, par. 4; Ex. O, par. 2, p. 2; Def.'s Mem. at 10. In addition, in January, 2001, the EEOC wrote to Defendant requesting documents relating to the hiring of covert operatives stating that those documents came within the production of documents relative to "security related services." Ex. Q; Def.'s Mem. at 10. Defendant's attorney responded stating that the covert investigation was conducted in response to the allegations in the complaint; therefore, Defendant was protected by the work product privilege. Def.'s Mem. at 10. The EEOC brought a motion to compel production of the undercover investigation reports, but this court denied the motion (work product privilege) and ordered Defendant to complete a privilege log. Id. at 11. On March 23, 2001, Defendant produced a privilege log. Ex. T; Def.'s Mem. at 11.
On April 3, 2001, the EEOC presented a motion for rehearing seeking production of the undercover investigation reports. Def.'s Mem. at 11. The motion was denied and the EEOC attorneys filed objections. Id. On May 14, 828 2001, the District Judge *828 found that the undercover investigation reports must be produced but only after this court conducted an in camera inspection. Id. On May 23, 2001, following the court's inspection, Defendant produced the reports to Plaintiffs. Id.
In responding to the subject motion, Defendant presents four arguments:
(1) Defendant asserts that Mr. Kinsella never communicated or caused another to communicate with Mr. George and/or Mr. Thompson. Def.'s Mem. at 12. Defendant asserts that Plaintiffs allege that Mr. Kinsella violated the ethics rules solely because undercover investigative reports dated February 29, March 7 and 23, April 27, May 30, June 21, July 6, and August 28, 2000 mention that Investigator Williams had contact with Mr. George and Mr. Thompson. Def.'s Mem. at 13. Plaintiffs, thus, claim that Defendant (Mr. Kinsella) violated LRs 83.54.2 and 83.58.2 when Mr. Williams spoke or communicated with Mr. George and Mr. Thompson. Id.
Defendant argues that while Mr. Kinsella had some discussions with Apollo regarding the undercover investigation, he had only limited discussions with Myers's employees as to the general nature of the investigation. Def.'s Mem. at 13. Defendant contends that Mr. Kinsella never directed or caused any undercover investigator to communicate with a party. Id. In addition, no allegation has been made that Mr. Kinsella ever communicated with a party outside the presence of the parties' attorney. Id. Furthermore, the investigative personnel have testified that neither Mr. Kinsella nor anyone from his law firm ever told any investigator to contact or communicate with Mr. George, Mr. Thompson, or any other Plaintiffs who were represented by attorneys. Ex. A, pp. 110-111, 120; Ex. B, pars. 5,8; and Ex. C, pars. 6, 8; Def.'s Mem. at 14.
Defendant, thus, asserts Plaintiffs' charge is based solely on Mr. Kinsella's statement that the undercover investigation was done at his instance and that Mr. Williams spoke with Mr. George and Mr. Thompson. Def.'s Mem. at 14. Defendant asserts that Plaintiffs have not deposed Mr. Williams. Ex. E, p. 36; Def.'s Mem. at 14. Moreover, Plaintiffs have not deposed Investigator Mroz who would have testified that he had never spoken to nor communicated with Mr. Kinsella during the course of the investigation. Ex. B; Def.'s Mem. at 15. Furthermore, if Mr. Mroz and Mr. Williams would have been deposed, Plaintiffs would have learned that Mr. Ott, not Mr. Kinsella, provided investigators with Mr. George's and Mr. Thompson's names. Ex. B, C; Def.'s Mem. at 14.

(2) Defendant's second argument is that Mr. Kinsella acted ethically in recommending to Apollo that an undercover investigation be conducted to seek out discriminatory and/or illegal activity. Def.'s Mem. at 15. Defendant asserts that it is permissible for an attorney to advise a client to perform an undercover investigation. Id. In addition, an attorney may properly advise a client as to whether the client may communicate with an adverse party either directly or through a hired investigator. Id. Defendant, thus, asserts that parties to a matter may communicate directly with each other. Comment to LR 83.54.2.

In Miano v. AC & R Advertising, Inc., 148 F.R.D. 68 (S.D.N.Y.1993), a plaintiff recorded damaging statements from a corporate defendant employee, which were provided to plaintiff's attorney who eventually produced them in litigation. The defendant claimed that the plaintiff's attorney violated the equivalent of LR 83.54.2, by communicating with persons represented by counsel. As stated in Miano:

829

*829 Ethics opinions allow that attorneys need not prevent clients from engaging in ex parte or

taped conversation with adversaries, and are permitted to counsel clients regarding the scope and

ramifications of such conduct... While the attorney's subsequent receipt and use of information

secured by the client goes a step further, logic dictates that if the information was not secured

illegally or unethically, its use does not place the attorney in violation of the disciplinary rules...

When a client independently and legally secures information which is relevant and useful to his

case and provides it to counsel, the attorney's use of the information is not unethical. Id. at 89

(citations omitted).

In EEOC v. McDonnell Douglas Corp., 948 F.Supp. 54, 55 (E.D.Mo.1996), in construing the Missouri equivalent of LR 83.54.2, the court ruled that "there is nothing that prohibits one party to a litigation from making direct contact with another party to the same litigation." See Hazard & Hodes, The Law of Lawyering, § 38.4 at 38-5: "Rule 4.2 is designed to prevent lawyers from either overreaching third parties or interfering with the relationships between opposing parties and their own lawyers. It follows that the Rule does not (and could not in any event) prevent one party from directly communicating with another. Furthermore, a lawyer should be able to advise a client to contact a third-party even a represented third-party directly, without running afoul of the prohibition in rule 8.4 against violating a disciplinary rule through the acts of another." Id.

Section 99 of the Restatement (3rd) of Law Governing Lawyers has a rule similar to LR 83.54.2 stating that "[n]o general rule prevents a lawyer's client, either personally or through a nonlawyer agent, from communicating directly with a represented nonclient. Thus, while neither a lawyer nor a lawyer's investigator or other agent ... may contact the represented nonclient, the same bar does not extend to the client of the lawyer or the client's investigator or other agent. As stated in Subsection (2), the anti-contact rule does not prohibit a lawyer from advising the lawyer's own client concerning the client's communication with a represented non-client, including communications that may occur with the prior consent... or knowledge of the lawyer for the non-client. The lawyer for a client intending to make such a communication may advise the client regarding legal aspects of the communication, ..." Id. at 76-77.

Defendant argues that based on the rules and case law discussed, supra, Mr. Kinsella could have ethnically advised Apollo on the performance of the undercover investigation and he could have, without violating, LR 83.54.2 advised Apollo that it directly or through Apollo's investigator, Myers could contact Plaintiffs herein. Def.'s Mem. at 17. Defendant asserts, however, that, in any event, the information provided to Mr. Williams regarding the contacts with Mr. George and Mr. Thompson came from Mr. Ott, and not from Mr. Kinsella. Exs. B, C; Def.'s Mem. at 17. Moreover, while the decision whether or not to perform the investigation was discussed with Mr. Kinsella, the decision to proceed was made by Apollo's President, Mr. Rogers. Def.'s Mem. at 17. Furthermore, the meeting between Mr. Myers and the Apollo representatives regarding what would be done did not include Mr. Kinsella. Ex. A, pp. 20-22; Def.'s Mem. at 17.

(3) Defendant's third argument is that disqualification is unwarranted (too harsh) even assuming, arguendo, that 830 Mr. Kinsella caused the investigator to communicate with any of the Plaintiffs. Def.'s Mem. at *830 18. In
considering disqualification, courts typically follow a two-step process. A court must determine whether an ethical violation has occurred, and if disqualification is the appropriate remedy. SWS Fin. Fund A. v. Salomon Bros., Inc., 790 F.Supp. 1392, 1399 (N.D.Ill.1992). In addition, the moving party bears the burden of showing facts

necessitating disqualification. Evans v. Artek Sys. Corp., 715 F.2d 788, 794 (2d Cir.1983). Moreover, attorney disqualification "is a drastic measure which courts should hesitate to impose except when absolutely necessary." Freeman v. Chicago Musical Instrument Co., 689 F.2d 715, 721 (7th Cir.1982).
In response to Plaintiffs' citation to case law where disqualification of counsel was ordered, Defendant asserts that, in these cases, the attorney had communicated with the opposing party, and a finding of significant prejudice was made by the court. Def.'s Mem. at 18. In each case cited by Plaintiffs, there was an intentional and egregious violation by a particular attorney. Id. at 18-19. See Def.'s Mem. at 19.
Defendant also asserts that Plaintiffs have not been prejudiced by Mr. Williams communicating with Mr. George and Mr. Thompson because the information about former drug sales is outside "the subject of the representation" of the suit, and the information about who hung the noose and made racial remarks is no different than information provided by other witnesses, including Plaintiffs. Def.'s Mem. at 20. Thus, Defendant contends that disqualification is not the appropriate remedy because Plaintiffs have not been prejudiced. Id.
(4) Defendant's fourth argument is that sanctions are not appropriate with respect to the undercover investigation reports, the claim of work product privilege and the privilege logs. Pls.' Mem. at 21. Defendant argues that it did not violate the Rules of Professional Conduct or the Federal Rules of Civil Procedure by raising the work product objection as to the undercover investigation reports. Def.'s Mem. at 22. Defendant states that although the reports were not detailed in the May, 2000 privilege log, Plaintiffs were aware of their existence and the reports were detailed in the March 31, 2001 log. Id. In addition, the fact that the reports were not detailed in the May, 2000 log was not done to mislead anyone, but was at most an inadvertent oversight, even if, Plaintiffs' request for documents are construed as relating to investigations conducted, "as a result of each Plaintiff's claim or allegation of discrimination." Ex. H., par. 19; Def.'s Mem. at 22.
Defendant alleges that it never hid any information concerning the undercover investigation and, in fact, Plaintiffs were aware of it from the beginning. Id. Defendant asserts that a court typically imposes sanctions only when a party fails to comply with discovery by displaying wilful conduct, bad faith or fault. See Philips Medical Sys. Intern., B.V. v. Bruetman, 982 F.2d 211, 214 (7th Cir.1992) (citation omitted). Defendant, thus, alleges that it repeatedly raised valid objections which were upheld twice, and even when the District Judge ordered the reports produced, the court acknowledged that the reports were work product, but found the privilege waived based on one of Defendant's affirmative defenses. Id. In addition, Defendant promptly complied with the District Judge (and this court's order) regarding the privilege log. Id.
Defendant, thus, argues that the facts and evidence shown by deposition testimony and affidavits conclusively establish that neither Mr. Kinsella nor his law firm violated LRs 83.54.2 and 83.58.4. Def.'s Mem. at 22. Mr. 831 Kinsella acted properly *831 at all times. Id. Furthermore, Defendant, in good faith, continually raised the work product privilege regarding the undercover investigation reports, made Plaintiffs aware of the undercover investigation beginning February 7, 2000, and provided a privilege log on March 23, 2001. Id. The fact that the reports weren't detailed in the May, 2000 privilege log was not intentional. Id. Defendant, therefore, asserts that disqualification/sanctions are not appropriate. Id.
II. Plaintiffs' Reply in Support of Amended Notice for Sanctions and to Disqualify.
In this motion, Plaintiffs present five arguments. Most of these arguments are similar to those presented in Plaintiffs' opening brief.
(1) Plaintiffs allege that the testimony offered by Defendant has been misstated and does not establish compliance with the Rules of Professional Conduct. Pls.' Reply at 3. Specifically, Plaintiffs state that Defendant and its counsel now contend that "the actual decision to proceed (with the investigation) was made by Mr. Rogers, President of Apollo." Def.'s Mem. at 17. Defendant also claims that "[t]he undercover investigation ... was not conducted as a result of each plaintiff's claim or allegation of discrimination." Id. at 9. Plaintiffs, however, assert that the actual testimony of Mr. Rogers is that hiring the investigators "may" have been his idea. Def.'s Ex. F, p. 132; Pls.' Reply at 3. Mr. Rogers stated during his deposition:

Q. You didn't do (the investigation) simply because there was a lawsuit pending? Is that true?
A. This happened before the lawsuit. Id.
Plaintiffs argue that Mr. Rogers's testimony cannot be reconciled with the statements made by Mr. Kinsella and Mr. Miller, who offered a different story when attempting to establish a work product privilege. Pls.' Reply at 3. For example, Mr. Kinsella advised the court that the undercover investigation was done in anticipation of litigation in order to develop a legal theory of defense. Ex C, pp. 9-10, Pls.' Am. Mot. (See Transcript of Proceedings from April 3, 2001); Pls.' Reply at 4. In addition, in a January 30, 2001 letter, Mr. Miller of Rooks, Pitts & Poust stated that "[w]e may have hired these individuals [investigators] as part of our investigation into the allegations of this complaint. As such, they are protected by the attorney/work product privilege." Def.'s Ex. R; Pls.' Reply at 4. Furthermore, Plaintiffs assert that Mr. Rogers's testimony is inconsistent with Judge McKeague's July 9, 2001 order because he found that, "[a]ttorney Kinsella has acknowledged that the undercover investigation was initiated at his instance." Ex. 1, p. 3; Pls.' Reply at 4.
Plaintiffs next argue that the investigators statements (Mr. Myers and Mr. Mroz) do not conclusively establish compliance with the ethics rules. Pls.' Reply at 4. In its response, Defendant and its counsel claim that "Mr. Myers's deposition testimony [is] that Mr. Kinsella did not direct or cause anyone from Myers to contact or communicate with any individual at Apollo." Def's. Mem. at 14. However, on May 24, 2001, Mr. Myers testified that he could "not recall" whether he was directed to investigate any specific individual. Id. Plaintiffs assert that, with respect to Mr. Mroz, Defendant claims that, "Mr. Mroz never met with nor spoke with Mr. Kinsella, nor communicated with Mr. Kinsella in any fashion with regard to the undercover investigation." Def.'s Mem. at 7. Plaintiffs point out, however, that Mr. Mroz authored "all of the investigative reports that were sent directly to Mr. 832 Kinsella." *832 Pls.' Exs. J, L, M, and N (Am. Mot.); Pls.' Reply at 5.
Plaintiffs also assert that Mr. Kinsella has not submitted an affidavit. Pls.' Reply at 5.
(2) Plaintiffs' second argument is that Mr. Kinsella directed the investigation. Pls.' Reply at 5. Plaintiffs contend that Defendant and its counsel are attempting to minimize Mr. Kinsella's and his law firm's involvement by claiming that, "Mr. Kinsella acted ethically in recommending to his client that an undercover investigation be conducted to seek out discriminatory ... activity." Def.'s Mem. at 15. Plaintiffs, however, assert that the fact Mr. Kinsella merely "recommended ... that an undercover investigation be conducted" is contrary to Mr. Kinsella's prior statements and Judge McKeague's findings that Mr. Kinsella was "actively involved in directing the investigation." Ex. 1, p. 3; Pls.' Reply at 6.
Plaintiffs assert that the court should reject Defendant's claim that "[t]he meeting between Mr. Myers and the Apollo representatives as to what was desired and what was to be done did not include Mr. Kinsella." Def.'s Mem. at 17. The claim should be rejected because Mr. Myers testified that he spoke on the telephone with Mr. Kinsella in late 1998, early 1999 about "the focus of the investigation, what we needed to look for, kind of things we needed to uncover ... making sure we were aware of the issues ..." Def.'s Ex. A, pp. 94-95; Pls.' Reply at 6. Mr. Myers also testified that Mr. Kinsella was his client. Ex. 2, p. 6. Moreover, Defendant's second privilege log identifies five handwritten notes reflecting various conversations between the investigator and Mr. Kinsella. Ex. T; Pls.' Reply at 6-7. The privilege log includes references to documents indicating "a reference from Dan Kinsella" and a conversation with Mr. Kinsella "regarding the scope and content of the investigative reports." Pls.' Reply at 7.
Plaintiffs argue that Defendant's attempt to compare the circumstances in this case to those situations involving mere communication between clients also fails. Pls.' Reply at 7. For example, in Miano, 148 F.R.D. 68, the court found that those individuals contacted surreptitiously by a party were not represented by counsel. Second, the court stated that the attorney in question "did not engineer or arrange" the taped conversations. Id. at 88. The court further found that the attorney "did not suggest, plan or supervise what [the client] was doing ..." Id. at 89. The court, however, did conclude that the attorney was "perilously close to crossing the line of circumventing the disciplinary rules through his client." Id.

Plaintiffs argue that Defendant's argument disregards the language, in Miano, which discusses whether an attorney has "caused" a communication with a party who is represented by counsel. Pls.' Reply at 7. The court in Miano stated:
Obviously, when an attorney actually requests or engineers a contact or action by another that would otherwise be prohibited by the disciplinary rules, he ... can be deemed to have "caused" it and to have circumvented the rule. An attorney cannot legitimately delegate to another what he himself is prohibited from doing, nor may he use another as to his alter ego... [T]he constraints on an attorney must go even further, so as to address the situation where he or she does not explicitly instruct another to act but accomplishes the same result indirectly. Id. at 82; Pl.'s Reply at 7.
Plaintiffs, thus, assert that Defendant and its counsel have done precisely what Miano says the rules prohibit, 833 "engineering a contact or action by another that would otherwise be prohibited by the disciplinary *833 rules..."
Miano, 148 F.R.D. at 82. For example, Mr. Kinsella received frequent reports from investigators for the purpose of manufacturing a defense. Pls.' Reply at 8. Defendant's privilege log identifies multiple contacts between Mr. Kinsella and the investigators. Id. Plaintiffs assert that the status reports clearly indicate that investigators were targeting them directly and seeking information about the case. Id. Moreover, notwithstanding Mr. Kinsella's knowledge of direct contact with Plaintiffs, he did nothing to change the direction or focus of the investigation. Id. at 9.
(3) Plaintiffs' third argument is that Defendant provides no reasonable justification for why it failed to disclose the investigative reports for over two years. Pls.' Reply at 9. Plaintiffs argue that Defendant deliberately failed to disclose the investigative reports despite numerous requests for production. Id. at 10. The chronology of requests for production is as follows:
In April 1999, Plaintiffs' First Production Request sought "all documents relating to all injuries or investigations conducted as a result of each Plaintiff's claim or allegation of discrimination." Id.
Plaintiffs assert that Defendant's contention that the investigative reports were not responsive to this request contradicts Mr. Kinsella's assertion that the investigation was an effort to develop a legal theory of defense.
On March 28, 2000, Plaintiffs' counsel requested all information and documents relative to Mr. Rogers's letter to the FBI. Ex. I to Def.'s Mem.
Plaintiffs assert that Defendant failed to disclose the existence of the reports and now Defendant contends that Plaintiffs knew about the reports when it produced Mr. Rogers's letter. However, the letter, like Defendant's May 31, 2000 privilege log, makes no reference to the reports. Furthermore, Plaintiffs made multiple requests for documents supporting Mr. Rogers's letter, but Defendant continued to conceal the reports.
On April 26, 2000, Plaintiffs served their second request for production of documents seeking information "related to or showing investigations conducted by Defendant into the identity of the person(s) responsible for racially-offensive graffiti." Id.
On May 31, 2000, Defendant submitted its misleading and false privilege log that made no reference to the investigative reports. Id.
On September 5, 2000, Plaintiffs, again, requested all documents and information relating to Mr. Rogers's letter to the FBI. Id. (Ex. N to Def.'s Mem.)
On September 11, 2000, Defendant's counsel submitted its false response to Plaintiffs' September 5, 2000 letter, stating, that "we have not received additional documentation from the client." Id. at 11.
Plaintiffs argue that Defendant's response is deliberately misleading because on September 11, 2000, Mr. Kinsella had in his possession multiple investigative reports. Id.

On September 19, 2000, Defendant's response to Plaintiffs' second request for production, again, deliberately misleads Plaintiffs by stating, "[w]ithout waiving the foregoing (work production and attorney/client privilege) objection, Defendant has produced documents responsive to this request which exist since January 1, 1997 to date, and which are documents 13813-13883 ..." Ex. P, Def.'s Mem.
Plaintiffs assert that Defendant's response is once again deliberately false and misleading because Mr. Kinsella 834 had numerous *834 investigative reports in his possession well before September 19, 2000 which had not been
produced. Id.
Plaintiffs, therefore, request that the court impose sanctions on Defendant due to its pattern of deception and wilful failure to identify the investigative reports. Pl.'s' Reply at 12. Plaintiffs assert that it was prejudiced by Defendant's conduct because it incurred significant time and expense in repeatedly requesting the investigative reports and proceeding with depositions without the benefit of the reports. Id.
(4) Plaintiffs argue that Mr. Kinsella and his law firm should be disqualified and otherwise sanctioned. Pls.' Reply at 12. In this section, Plaintiffs restate its arguments for disqualification and add that Defendant, in its response, does not address the fact that Mr. Kinsella and his firm directed an investigation in violation of LRs 83.54.2 and 83.58.4(a), and that Defendant provides no justification for its failure to stop or change the scope of the investigation. Id. at 13.
(5) Plaintiffs assert that other sanctions are warranted for counsel and Defendant's egregious conduct. Pls.' Reply at 14. In this section, Plaintiffs restate the additional proposed sanctions listed in its opening brief. Pls.' Reply at 14-15; Pls.' Am. Mot. at 17.
THE COURT'S FINDINGS
Initially, the court determines that the evidence in the record (and the state of the record) does not adequately establish that Mr. Kinsella or his firm either communicated or caused the undercover investigators to communicate with Plaintiffs Thompson and George in violation of Local Rules 83.54 and 83.58, so as to warrant the "drastic" sanction of attorney disqualification. Moreover, even assuming arguendo a Rule 83.54 (and/or Rule 83.58) violation(s) herein, the state of the record is such that the court cannot find the necessary wilful or intentional violation, and prejudice to Plaintiffs, essential to an order of attorney disqualification.
Similarly, the court determines that the evidence presented of record does not adequately establish that Defendant and its counsel concealed ethical violations, wrongfully withheld documents, and produced a misleading and false privilege log. The record before the court, and considering Defendant's arguments and position, does not show the type of wilful or bad faith conduct or fault requisite to such a finding.
CONCLUSION[4]
In view of the foregoing, the Plaintiffs' Amended Motion for Sanctions and to Disqualify is denied.
[1] LR 83.54.2 is nearly identical to Rule 4.2 of the Illinois Rules of Professional Conduct.
[2] Plaintiffs allege they were not aware of the extent of the undercover investigation until May 23, 2001 when the documents were produced.
[3] These reports were provided to management at their home addresses.
[4] In view of our findings herein, the court finds it unnecessary to consider the various sanctions alleged by Plaintiffs to flow from the violations asserted.

Save trees - read court opinions online on Google Scholar.

 
 Jones v. Scientific Colors, Inc., Not Reported in F.Supp.2d (2001)

Opinion

2001 WL 902778 Only the Westlaw citation is currently available. United States District Court, N.D. Illinois, Eastern Division.
Norman JONES, et al., Plaintiffs, v.
SCIENTIFIC COLORS, INC., d/b/a Apollo Colors, Inc., Defendant. UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff,
v. SCIENTIFIC COLORS, INC., d/b/a Apollo Colors, Defendant.
Nos. 99 C 1959, 00 C 0171. | July 3, 2001.

MEMORANDUM OPINION AND ORDER ON OBJECTIONS TO VARIOUS MAGISTRATE JUDGE RULINGS
MCKEAGUE,* J.
*1 On May 22, 2001, Magistrate Judge Ian H. Levin issued an order granting the motion of the individual plaintiffs to compel discovery into financial matters. Defendant Scientific Colors has timely filed objections.1 In connection with defendant’s continued refusal to disclose the requested financial information, plaintiffs have also moved the Court to find defendant in contempt and to award discovery sanctions. Defendant has also objected to the magistrate judge’s May 22, 2001 order denying, in part, its motion to compel response by the individual plaintiffs to its third set of interrogatories. Finally, the Equal Employment Opportunity Commission (“EEOC”) has objected to the magistrate judge’s May 24, 2001 order based on in camera review of documents.
The Court now addresses all three matters based on the briefs filed by the parties. A magistrate judge’s ruling on a non-dispositive matter will be disturbed only if clearly erroneous or contrary to law. Fed.R.Civ.P. 72(a).

I
Defendant contends the ordered disclosure of private information concerning its financial status is contrary to the governing law in the Seventh Circuit. Plaintiffs have sought disclosure of defendant’s financial status contending it is relevant to assessment of their claim for punitive damages. Indeed, in TXO Production Corp. v. Alliance Resources Corp., 509 U.S. 443, 462 (1993), the Supreme Court considered the corporate defendant’s wealth a legitimate and typical factor in evaluating a punitive damages award. Defendant maintains this is not the law of the Seventh Circuit, citing Kemezy v. Peters, 79 F.3d 33, 36 (7th Cir.1996), and Zazú Designs v. L’Oreal, S.A., 979 F.2d 499, 508 (7th Cir.1992).
In Kemezy, the court held simply that a plaintiff who seeks punitive damages is not required to present evidence of the defendant’s net worth. 79 F.3d at 36–37. Kemezy thus represents weak authority for the proposition that defendant’s financial status is irrelevant.
In Zazú Designs, the court struck down an award of compensatory and punitive damages for lack of an adequate evidentiary foundation. 979 F.2d at 506–09. The Zazú opinion includes dictum concerning the inappropriateness of considering a corporate defendant’s wealth or net worth in assessing punitive damages. Id. at 508–09. In subsequent district court rulings, this dictum has been construed rather expansively. See Pivot Point Int’l, Inc. v. Charlene Products, Inc., 932 F.Supp. 220, 223 (N.D.Ill.1996) (excluding evidence of defendant’s financial condition as irrelevant to punitive damages claim under federal law); Yund v. Covington Foods, Inc., 193 F.R.D. 582, 586–89 (S.D.Ind.2000) (holding that Zazú Designs is controlling precedent and denying motion to compel disclosure of corporate defendant’s financial information).
1

Jones v. Scientific Colors, Inc., Not Reported in F.Supp.2d (2001)
The Court has carefully reviewed the above authorities and remains unpersuaded, at this stage, that the Zazú Designs dictum represents controlling authority. Defendant has failed to demonstrate that the magistrate judge’s order compelling disclosure of the subject financial information is clearly erroneous or contrary to law. Accordingly, defendant’s objection is overruled and the magistrate judge’s order is hereby SUSTAINED. Defendant shall make the required disclosures within ten days of the date of this order.2
II *2 Plaintiffs’ motion for contempt order and discovery sanctions, growing out of defendant’s failure to comply with the magistrate judge’s order compelling disclosure of financial information, is hereby DENIED. Defendant was entitled to timely object to the magistrate judge’s ruling. Now that the objection has been overruled, however, prompt compliance is required.
III In its third set of interrogatories served on plaintiffs, defendant asked plaintiffs to identify documents in their control or in the control of their attorneys reflecting communications between plaintiffs and the law firm of Spesia, Ayers & Ardaugh during 1998. On May 22, 2001, the magistrate judge granted defendant’s motion to compel only to the extent of requiring plaintiffs’ counsel, John Foreman, to state in an affidavit whether counsel had any documents responsive to the interrogatories. Mr. Foreman produced the affidavit, attesting:
1. I have reviewed the files relating to the above-captioned case, and have determined that no documents responsive to the Defendant’s Third Set of Interrogatories are present in those files.
In objecting to the magistrate judge’s order, defendant challenges the truthfulness of the affidavit.
Obviously, plaintiffs cannot be compelled to produce what they do not have. By ordering plaintiffs’ counsel to state whether counsel had any documents responsive to defendant’s request, the magistrate judge took an appropriate measure to ascertain whether further substantive response could be made. There is nothing clearly erroneous or contrary to law in the order, and it is therefore SUSTAINED over objection. If defendant is aggrieved by the form or contents of the affidavit, then it must pursue some other remedy.
IV On May 14, 2001, the Court issued an order requiring defendant to submit documents to the magistrate judge for in camera review and eventual disclosure of appropriate documents to the EEOC. After in camera review, the magistrate judge ordered disclosure of all but 18 pages of the submitted documents. The EEOC now objects to the nondisclosure of these 18 pages. The EEOC is not entirely satisfied with the magistrate judge’s explanation of the reasons for nondisclosure.
The Court has conducted in camera review of the subject 18 pages and finds no error in the magistrate judge’s assessment. All of these pages either bear little or no relevance to substantiation of defendant’s affirmative defense or include comments reflecting mental impressions of an attorney or other representative of defendant concerning the litigation which are protected by the work product privilege. The magistrate judge committed no clear error and the EEOC’s objection is hereby OVERRULED.
IT IS SO ORDERED.
Footnotes
2

Jones v. Scientific Colors, Inc., Not Reported in F.Supp.2d (2001)

*

United States District Judge, Western District of Michigan, sitting by designation.

1

The objections were filed on June 6, 2001, the tenth working day after issuance of the subject order, and are therefore timely,

pursuant to Fed.R.Civ.P. 6(a).

2

This ruling is without prejudice to defendant’s right to renew its objection in a pre-trial motion in limine.

3

 
 Jones v. Scientific Colors, Inc., Not Reported in F.Supp.2d (2001)

Opinion

2001 WL 845650 Only the Westlaw citation is currently available. United States District Court, N.D. Illinois, Eastern Division.
Norman JONES, et al., Plaintiffs, v.
SCIENTIFIC COLORS, INC., d/b/a Apollo Colors, Inc., Defendant. UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff,
v. SCIENTIFIC COLORS, INC., d/b/a Apollo Colors, Defendant.
Nos. 99 C 1959, 00 C 0171. | July 26, 2001.

MEMORANDUM OPINION AND ORDER SUSTAINING MAGISTRATE JUDGE’S RULING
MCKEAGUE,* J.
*1 On June 1, 2001, Magistrate Judge Ian H. Levin issued a bench ruling denying the motion of defendant Scientific Colors, Inc., to quash the notice of deposition of its attorney Daniel V. Kinsella. Defendant has timely filed objections. The magistrate judge’s ruling may be modified or set aside only if clearly erroneous or contrary to law. Fed.R.Civ.P. 72(a); 28 U.S.C. § 636(b)(1)(A).
Neither defendant nor plaintiff Equal Employment Opportunity Commission (“EEOC”) has provided the Court with a transcript of Magistrate Judge Levin’s bench ruling. Nonetheless, it is apparent that he refused to quash the notice of deposition based, at least in part, on this Court’s May 14, 2001 determination that Scientific Colors had impliedly waived any work product privilege and opened the door to discovery by asserting-as an affirmative defense to plaintiff’s racial harassment claims-that it has exercised reasonable care to prevent and promptly correct harassing behavior, as evidenced by its own undercover investigation of the workplace.
Defendant does not take issue with the Court’s May 14, 2001 ruling. Defendant argues, however, that deposition of its counsel threatens an intrusion upon the attorney-client relationship that goes beyond the limited scope of its implied waiver of the work product privilege. Observing that depositions of opposing counsel are disfavored, see Madanes v. Madanes, 199 F.R.D. 135, 151 (S.D.N.Y.2001), defendant contends the EEOC has failed to satisfy the prerequisites to such an extraordinary measure by demonstrating that: “(1) no other means exist to obtain the sought-after information, (2) the information at issue is both relevant and not privileged, and (3) the information in question is crucial to the discovering party’s trial preparation.” Id.
The Court disagrees. Attorney Kinsella has acknowledged that the undercover investigation was initiated at his instance. The EEOC has also demonstrated that Mr. Kinsella was actively involved in directing the investigation. By asserting its undercover investigation as a reasonable measure undertaken to prevent and correct harassment, defendant has placed the nature and scope of the investigation at issue. Mr. Kinsella, in his capacity as investigator, rather than legal advisor, appears to be uniquely qualified to explain the scope of the investigation and its findings, as well as the responsive actions taken by Scientific Colors. The EEOC is therefore entitled to make pertinent inquiry of him in furtherance of assessing the reasonableness of the investigation.
Accordingly, the Court concludes that even under the Madanes standard, attorney Daniel Kinsella is properly subject to deposition in this limited extent. See Harding v. Dana Transport, Inc., 914 F.Supp. 1084, 1103 n. 13 (D.N.J.1996) (observing, under similar circumstances, that allowing deposition of the defendant’s counsel, as investigator, was not intended to expose all aspects of his professional association with his client, but only the nature and scope of the investigation).
1

Jones v. Scientific Colors, Inc., Not Reported in F.Supp.2d (2001)
*2 The Court thus finding that the magistrate judge’s denial of defendant’s motion to quash is neither clearly erroneous nor contrary to law, the same is hereby SUSTAINED and defendant’s objections are OVERRULED.
IT IS SO ORDERED.

Footnotes

*

United States District Judge, Western District of Michigan, sitting by designation.

2

 
 CM/ECF LIVE, Ver 3.0 - U.S. District Court, Northern Illinois - Docket Report

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LEVIN, PROTO, TERMED
United States District Court Northern District of Illinois - CM/ECF LIVE, Ver 3.0 (Chicago)
CIVIL DOCKET FOR CASE #: 1:00-cv-00171

EEOC v. Scientific Colors Assigned to: Hon. David W. McKeague Demand: $0 related Case: 1:99-cv-01959 Cause: 42:2000e Job Discrimination (Employment)

Date Filed: 01/11/2000 Date Terminated: 05/24/2002 Jury Demand: Both Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff

Plaintiff
Equal Employment Opportunity Commission

represented by Ethan M.M. Cohen United States Equal Employment Opportunity Commission 500 West Madison Street Suite 2800 Chicago, IL 60661 (312) 353-7568 Email: ethan.cohen@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

John C. Hendrickson United States Equal Employment Opportunity Commission 500 West Madison Street Suite 2800 Chicago, IL 60661 (312) 353-8551 Fax: (312) 353-8555 Email: john.hendrickson@eeoc.gov ATTORNEY TO BE NOTICED

John A. Knight United States Equal Employment Opportunity Commission 500 West Madison Street Suite 2800 Chicago, IL 60661 (312) 353-7568 Email: jknight@aclu-il.org ATTORNEY TO BE NOTICED

Jose Jorge Behar Hughes Socol Piers Resnick & Dym Ltd.

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V. Defendant Scientific Colors, Inc. doing business as Apollo Colors
Intervenor Plaintiff Norman C Jones

70 West Madison Street Suite 4000 Chicago, IL 60602 (312) 580-0100 Fax: 312-580-1994 Email: jbehar@hsplegal.com ATTORNEY TO BE NOTICED
represented by Daniel V. Kinsella Schuyler, Roche & Zwirner P.C. 130 East Randolph Street Suite 3800 Chicago, IL 60601 (312) 565-2400 Fax: 312-565-8300 Email: dkinsella@srzlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
David L. Miller Dykema Gossett Rooks Pitts PLLC 10 South Wacker Drive Suite 2300 Chicago, IL 60606 (312) 876-1700 Email: dlmiller@dykema.com ATTORNEY TO BE NOTICED
Eric John Essley Dykema Gossett Rooks Pitts PLLC 10 South Wacker Drive Suite 2300 Chicago, IL 60606 (312) 876-1700
Ian Matthew Sherman Dykema Gossett Rooks Pitts PLLC 10 South Wacker Drive Suite 2300 Chicago, IL 60606 (312) 876-1700 Email: isherman@dykema.com ATTORNEY TO BE NOTICED

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Intervenor Plaintiff Terry Fuller
Intervenor Plaintiff Douglas George, Jr
Intervenor Plaintiff Thomas Haywood
Intervenor Plaintiff Harlan Bennett
Intervenor Plaintiff Donald Newell
Intervenor Plaintiff Nathaniel Bell
Intervenor Plaintiff Trent Perry
Intervenor Plaintiff Franklin Dale Thompson Intervenor Plaintiff Allen Wright

represented by Barbara Naretto Petrungaro Will County State's Attorney's Office 121 N. Chicago Street Joliet, IL 60432 (815) 727-8609 ATTORNEY TO BE NOTICED
represented by Barbara Naretto Petrungaro (See above for address) ATTORNEY TO BE NOTICED
represented by Barbara Naretto Petrungaro (See above for address) ATTORNEY TO BE NOTICED
represented by Barbara Naretto Petrungaro (See above for address) ATTORNEY TO BE NOTICED
represented by Barbara Naretto Petrungaro (See above for address) ATTORNEY TO BE NOTICED
represented by Barbara Naretto Petrungaro (See above for address) ATTORNEY TO BE NOTICED
represented by Barbara Naretto Petrungaro (See above for address) ATTORNEY TO BE NOTICED
represented by Timothy J. Rathbun Rathbun, Cservenyak & Kozol 2400 Glenwood Suite 215 Joliet, IL 60435 (815) 730-1977 Email: trathbun@rcklawfirm.com

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Date Filed 01/11/2000
01/26/2000 01/28/2000
02/01/2000 03/16/2000

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Allyson R Behm Rathbun, Cservenyak & Kozol 2400 Glenwood Suite 215 Joliet, IL 60435 (815) 730-1977 Email: abehm@dykema.com ATTORNEY TO BE NOTICED
Frank Stephan Cservenyak, Jr Rathbun, Cservenyak & Kozol 3260 Executive Drive Joliet, IL 60431 (815) 730-1977
J. Douglas Mraz Rathbun, Cservenyak & Kozol 2400 Glenwood Suite 215 Joliet, IL 60435 (815) 730-1977

#

Docket Text

1 COMPLAINT; jury demand - Civil cover sheet - Appearance(s) of Ethan M.M. Cohen, John A. Knight, Jose Jorge Behar and John C. Hendrickson as attorney(s) for plaintiff EEOC (No summons(es) issued.) (Documents: 1-1 through 1-2) (hp) (Entered: 01/12/2000)

2 ATTORNEY APPEARANCE for defendant by Daniel V. Kinsella, David L. Miller (yap) (Entered: 01/28/2000)

SCHEDULE set on 1/28/00 by Hon. John A. Nordberg : Status hearing set to 2:30 3/16/00 .Plaintiff must report to the Court on status of service and pleadings, the possibility of settlement in the case and, if no possibility of settlement exists, the Preliminary Pretrial Scheduling Order must be completed and presented to the Court for entry instanter regardless of the status of the pleadings. Plaintiff shall notify all other parties of Court's action. Mailed notice (tlp) (Entered: 01/28/2000)

3 WAIVER of service of summons as to defendant sent on 1/11/00 (las) (Entered: 02/02/2000)

SCHEDULE set on 3/16/00 by Hon. John A. Nordberg : Status hearing held and continued to 2:30 5/18/00 . Should this case be consolidated or transferred in the future, the status hearing will be stricken. Mailed notice (tlp) (Entered: 03/16/2000)

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05/18/2000 05/18/2000
05/23/2000
06/05/2000 08/25/2000 08/31/2000 08/31/2000 09/07/2000 09/07/2000 09/13/2000 09/14/2000 09/14/2000 09/19/2000 09/19/2000 09/19/2000 09/20/2000

SCHEDULE set on 5/18/00 by Hon. John A. Nordberg : Status hearing stricken. No notice (tlp) (Entered: 05/18/2000)
4 MINUTE ORDER of 5/18/00 by Hon. John A. Nordberg : Status set for this date is stricken, parties having advised this court about this case is consolidated with case 99 C 1959, Jones v. Scientific, for discovery purposes, before Judge McKeague. Mailed notice (fce) (Entered: 05/22/2000)
5 PETITION by Norman C Jones, Terry Fuller, Douglas George Jr, Thomas Haywood, Harlan Bennett, Donald Newell, Nathaniel Bell, Trent Perry, Franklin Dale Thompson to intervene ; Notice. (tlm) (Entered: 06/06/2000)
6 MINUTE ORDER of 6/5/00 by Hon. John A. Nordberg : Petitioners' motion to intervene is granted without objection. [5-1] No notice (tlm) (Entered: 06/06/2000)
MOTION by Apollo Colors Inc for protective order ; Memorandum in Support; Notice. (In 99C1959) (tlm) (Entered: 09/29/2000)
MOTION by Apollo Colors Inc for entry of confidentiality order ; Notice. (In 99C1959) (tlm) (Entered: 09/29/2000)
MOTION by Apollo Colors Inc to compel discovery (Attachments); Notice. (In 99C1959) (tlm) (Entered: 09/29/2000)
8 MOTION by intervenor plaintiffs for leave to file first amended complaint ; Notice (rmm) (Entered: 09/21/2000)
12 MOTION by plaintiff to compel answers to interrogatories (Attachments); Notice. (vmj) (Entered: 09/29/2000)
7 ANSWER by defendant to complaint [1-1]; jury demand; Notice. (tlm) (Entered: 09/18/2000)
MOTION by Intervenor plaintiffs to strike affirmative defenses (Attachments); Notice. (In 99C1959) (tlm) (Entered: 09/29/2000)
MOTION by Norman C Jones, Terry Fuller, Harlan Bennett, Donald Newell, Nathaniel Bell for leave to serve additional interrogatories (Attachments) ; Notice. (In 99C1959) (tlm) (Entered: 09/29/2000)
9 MINUTE ORDER of 9/19/00 by Hon. John A. Nordberg : Plaintiffs' motion for leave to file first amended complaint is granted without objection [8-1]. Mailed notice (rmm) (Entered: 09/21/2000)
10 FIRST AMENDED COMPLAINT by intervenor plaintiffs (rmm) (Entered: 09/21/2000)
MOTION by intervenor plaintiffs for sanctions for failure to comply with court ordered discovery production (Attachments); Notice. (In 99C1959) (tlm) (Entered: 09/29/2000)
MOTION by defendant for leave to file countercomplaint (Attachments).

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09/20/2000 09/21/2000 09/21/2000 09/22/2000 09/22/2000 09/22/2000 09/22/2000
09/25/2000 09/29/2000
10/02/2000 10/03/2000 10/10/2000

(Original in 99 cv 1959) (fce) (Entered: 09/26/2000)
MOTION by defendant to compel plaintiff Norman Jones to answer three sets of deposition questions (Attachments); (Original in 99 cv 1959) (cem) (Entered: 09/28/2000)
11 RESPONSE by plaintiff EEOC to defendant's motion for protective order; Notice. (vmj) (Entered: 09/28/2000)
RESPONSE by defendant to EEOC motion to compel answers to interrogatories (Attachments); Notice. (Original in 99 cv 1959) (cem) (Entered: 09/28/2000)
13 MINUTE ORDER of 9/22/00 by Hon. Ian H. Levin: Motion for leave to serve additional interrogatories is granted in part and denied in part by agreement [0-1]. No notice (vmj) (Entered: 09/29/2000)
15 MINUTE ORDER of 9/22/00 by Hon. Ian H. Levin: Defendant Appolo Colors, Inc.'s motion for entry of confidentially order is granted. Entered Confidentiality Order No notice (vmj) Modified on 09/29/2000 (Entered: 09/29/2000)
16 MINUTE ORDER of 9/22/00 by Hon. Ian H. Levin: Defendant Appolo Colors' motion to consolidte for all purposes is hereby withdrawn to be re-filed before Judge McKeague. No notice (vmj) (Entered: 09/29/2000)
17 MINUTE ORDER of 9/22/00 by Hon. Ian H. Levin: Status hearing set for 10/23/00 at 9:30 a.m. Defendant Apollo's motion to compel discovery is granted [0-1]. Plaintiff Derek Lee to respond to written discovery from Apollo by 10/23/00. Motion for protective order is denied. Mailed notice (vmj) (Entered: 09/29/2000)
14 MINUTE ORDER of 9/25/00 by Hon. Ian H. Levin: Motion to strike affirmative defenses is granted [0-1] by agreement with defendant given leave to file amended affirmative defense by 10/13/00. No notice (vmj) (Entered: 09/29/2000)
19 MINUTE ORDER of 9/29/00 by Hon. David W. McKeague: Hearing on defendant's motion for leave to file countercomplaint [0-1] and defendant's motion to consolidate for all purposes is set for 10/18/00 at 9:00 a.m., in Courtroom 1843. Response briefs should be filed no later than 10/10/00. Reply briefs should be filed no later than 10/13/00. Notices mailed by judge's staff (vmj) (Entered: 10/05/2000)
18 FIRST AMENDED COMPLAINT by plaintiffs [10-1]; Jury demand; Notice. (cem) (Entered: 10/04/2000)
UNCONTESTED MOTION by Scientific Colors to compel production of documents from non-party Illinois Department of Employment Security ; Notice. (In 99C1959) (tlm) (Entered: 10/04/2000)
20 MINUTE ORDER of 10/10/00 by Hon. Ian H. Levin : Scientific Colors' uncontested motion to compel production of documents from non-party Illinois Department of Employment Security is granted [0-1]. Mailed

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10/11/2000 10/17/2000 10/17/2000
10/23/2000
10/23/2000 10/26/2000
11/01/2000 11/02/2000 11/06/2000 11/22/2000 12/04/2000 12/13/2000 12/19/2000

notice (ar) (Entered: 10/12/2000)
BRIEF by plaintiff Norman C Jones in opposition to defendant's motion for leave to file counterclaim (Attachments); Notice. [0-1] (In 99C1959) (tlm) Modified on 10/12/2000 (Entered: 10/12/2000)
OBJECTIONS by defendant to order of magistrate judge denying defendant's motion for a protective order (Attachments) (original in 99 C 1959). (cem) (Entered: 10/19/2000)
MEMORANDUM of law by defendant in support of its objections to magistrate judge Levin's order denying its motion for a protective order [0-1] (Attachments) (Original in 99 C 1959). (cem) (Entered: 10/19/2000)
21 MINUTE ORDER of 10/23/00 by Hon. Ian H. Levin : Status hearing held and continued to 11/22/00 at 9:30 a.m. Petition to intervene is granted without objection. Defendants to answer or otherwise plead by 11/20/00. Mailed notice (yap) (Entered: 10/24/2000)
22 PETITION by Allen Wright to intervene (Attachment); Notice. (tlm) (Entered: 10/24/2000)
23 REASSIGNMENT ORDER of 10/26/00 Case reassigned to Hon. David W. McKeague from Hon. John A. Nordberg pursuant to Local Rule 40.4. Case related 1:99-cv-1959 with member cases 1:00-cv-171 Mailed notice (yap) (Entered: 10/30/2000)
24 RESPONSE by plaintiff to defendant's objections to Magistrate Order [01]; Notice (yap) (Entered: 11/02/2000)
AMENDED ANSWER [7-1] by defendant to plaintiffs' first amended complaint at law; Notice of filing (Original in 99 C 1959) (eav) (Entered: 11/03/2000)
ANSWER TO COUNTERCLAIM by Norman Jones; Notice. (In 99C1959) (tlm) (Entered: 11/08/2000)
SCHEDULE set on 11/22/00 by Hon. Ian H. Levin : Status hearing held; continued to 9:30 2/5/01 . Mailed notice (smm) (Entered: 11/22/2000)
25 ATTORNEY APPEARANCE for defendant by Ian Matthew Sherman (yap) (Entered: 12/05/2000)
UNCONTESTED MOTION by defendant to compel production of documents fromnon-party Illinois Department of Employment Security ; Notice. (In 99C1959) (tlm) (Entered: 12/27/2000)
26 MINUTE ORDER of 12/19/00 by Hon. Ian H. Levin : Defendant's motion to compel production of documents is granted. Illinois Department of Employment Security is compelled to produce the transcript of the hearing that occurred on 08/18/99 in docket no. AR9029175A, and any records plaintiff submitted to document his attorneys to find work after leaving Apollo. [0-1] Mailed notice (tlm) (Entered:

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01/25/2001 02/05/2001 02/21/2001
02/23/2001 02/23/2001 03/08/2001 03/13/2001
03/16/2001
03/29/2001 03/30/2001 04/02/2001 04/03/2001 04/03/2001

12/27/2000)
MOTION by defendant to compel plaintiff Norman Jones to answer three sets of deposition questions (Attachments); Notice. (IN 99C1959) (tlm) (Entered: 02/28/2001)
SCHEDULE set on 2/5/01 by Hon. Ian H. Levin : Status hearing held; continued to 9:30 4/9/01. Plaintiff Derrick Lee to answer written discovery by 2/23/01. Mailed notice (smm) (Entered: 02/05/2001)
MOTION by defendant for an order granting parties 30 days to identify rebuttal experts or, alternatively, for an order compelling plaintiffs to provide curriculum vitae for their expert witnesses and to modify the time within which defendant has to identify its expert witnesses (Attachments); Notice. (IN 99C1959) (tlm) (Entered: 02/28/2001)
27 RESPONSE by plaintiff to defendant's motion regarding expert witnesses (Attachment) (yap) (Entered: 02/27/2001)
28 RESPONSE by plaintiff to defendant's motion regarding expert witnesses [0-3] (Attachment) (jmp) (Entered: 03/04/2001)
29 MOTION by plaintiff to compel complete answer to second request for productions of documents (Attachments) (yap) (Entered: 03/14/2001)
30 MINUTE ORDER of 3/13/01 by Hon. Ian H. Levin: Plaintiff's motion to compel complete answer to second request for productions of documents [29-1] is denied. Defendant is ordered to produce privilege log and affidavit of compliance by 3/23/01 on the terms stated of record. No notice (yap) (Entered: 03/14/2001)
31 MINUTE ORDER of 3/16/01 by Hon. Ian H. Levin: Pursuant to defendant's agreed oral motion for an order for Dr. Linda Kramper to produce any and all medical records. The court hereby orders that Dr. Linda Kramper to produce any and all medical records she has in her possession regarding Norman Jones, to attorney Barbara Petrungaro, 116 North Chicago Street, Joliet, Illinois 60432, on or before 3/19/01. Mailed notice (yap) (Entered: 03/23/2001)
34 MOTION by plaintiff to compel production of documents regarding undercover investigations and handwriting analysis (Attachments); Notice (yap) (Entered: 04/04/2001)
MOTION by defendant to reschedule hearing (Attachment) ; Notice. (tlm) (Entered: 04/11/2001)
32 RESPONSE by plaintiff to defendant's motion to reschedule hearing; Notice (yap) (Entered: 04/02/2001)
33 MINUTE ORDER of 4/3/01 by Hon. Ian H. Levin: Motion to reschedule hearing is denied. Mailed notice (yap) (Entered: 04/04/2001)
35 MINUTE ORDER of 4/3/01 by Hon. Ian H. Levin: Plaintiff's motion to compel production of documents regarding undercover investigations and

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04/05/2001
04/09/2001 04/09/2001
04/09/2001
04/10/2001 04/18/2001 05/01/2001 05/04/2001 05/04/2001 05/04/2001 05/04/2001 05/04/2001 05/07/2001 05/08/2001

handwriting analysis [34-1] is denied for the reasons stated of record. The court hereby orders that an affidavit of compliance be submitted by 4/6/01. Mailed notice (yap) (Entered: 04/04/2001)
MOTION by defendant to dismiss plaintiff Derek Lee for failure to provide any response to Defendant's written discovery and for failure to comply with court discovery orders (Attachments); Notice. (In 99C1959) (tlm) (Entered: 04/11/2001)
SCHEDULE set on 4/9/01 by Hon. Ian H. Levin : Status hearing held; continued to 10:30 5/7/01 . No notice (smm) (Entered: 04/10/2001)
36 MINUTE ORDER of 4/9/01 by Hon. Ian H. Levin: Motion to dismiss plaintiff Derek Lee for failure to provide any response to defendant's written discovery and for failure to comply with court discovery orders is withdrawn without prejudice. No notice (yap) (Entered: 04/10/2001)
37 MINUTE ORDER of 4/9/01 by Hon. Ian H. Levin : Status hearing held and continued to 10:30 am on 05/07/01. Plaintiff's motion to compel [121] is withdrawn. Defendants' motion to compel and for sanctions is withdrawn without prejudice. No notice (ar) (Entered: 04/17/2001)
SCHEDULE set on 4/10/01 by Hon. Ian H. Levin : Status hearing of 5/7/01 is stricken reset to 10:15 5/14/01 . Mailed notice (smm) (Entered: 04/10/2001)
38 OBJECTIONS by plaintiff to Magistrate Judge's 4/3/01 order [35-1] (Attachments); Notice (yap) (Entered: 04/19/2001)
45 MOTION by plaintiff for an order barring defendant from asking claimants whether they have ever been arrested (Attachments); Notice (yap) (Entered: 05/15/2001)
MOTION by defendant to quash subpoena of EEOC to Myers Service (Attachments); Notice. (In 99C1959) (tlm) (Entered: 05/15/2001)
MOTION by defendant to clarify the court's Minute Order of 02/27/01 (Attachments); Notice. (In 99C1959) (tlm) (Entered: 05/15/2001)
MOTION by defendant to compel Plaintiff Terry Fuller to answer questions and for other relief (Attachments); Notice. (In 99C1959) (tlm) (Entered: 05/15/2001)
MOTION by defendant to quash subpoena of EEOC to Myers Service (Original in case file 99 cv 1959) (yap) Modified on 05/15/2001 (Entered: 05/15/2001)
MOTION by defendant to clarify the court's minute order of 2/27/01 (Original in case file 99 cv 1959) (yap) (Entered: 05/15/2001)
39 REPLY by plaintiff in support of objections to Magistate Judge 4/3/01 order [38-1] (Attachment); Notice (yap) (Entered: 05/07/2001)
40 RESPONSE by plaintiff to defendant to quash subpoena to Myers service; Notice (yap) (Entered: 05/08/2001)

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05/09/2001 05/09/2001 05/09/2001 05/09/2001 05/09/2001 05/09/2001 05/09/2001 05/09/2001 05/14/2001
05/16/2001 05/17/2001 05/18/2001

41 MINUTE ORDER of 5/9/01 by Hon. Ian H. Levin: Motion to bar expert testimony is denied for reasons stated of record. Status hearing of 5/14/01 is vacated. No notice (yap) (Entered: 05/15/2001)
42 MINUTE ORDER of 5/9/01 by Hon. Ian H. Levin: Defendant's motion to clarify the court's minute order of 2/27/01 is granted on the terms stated of record. No notice (yap) (Entered: 05/15/2001)
43 MINUTE ORDER of 5/9/01 by Hon. Ian H. Levin: Motion to quash subpoena of EEOC to Myers Service, Inc is granted for reasons stated and on terms stated of record. No notice (yap) (Entered: 05/15/2001)
44 MINUTE ORDER of 5/9/01 by Hon. Ian H. Levin: Apollo Colors' motion to compel plaintiff Terry Fuller to answer questions and other relief is denied for reasons stated of record. No notice (yap) (Entered: 05/15/2001)
46 MINUTE ORDER of 5/9/01 by Hon. Ian H. Levin: Plaintiff's motion for an order barring defendant from asking claimants whether they have ever been arrested [45-1] is granted for reasons stated of record. No notice (yap) (Entered: 05/15/2001)
MOTION by Norman C Jones, Terry Fuller, Douglas George Jr, Thomas Haywood, Harlan Bennett, Donald Newell, Nathaniel Bell, Trent Perry, Franklin Dale Thompson to bar expert testimony (Attachments); Notice. (In 99C1959) (tlm) (Entered: 05/15/2001)
MOTION by defendant to compel plaintiff Terry Fuller to answer quesions and for other relief (Original in case file 99 cv 1959) (yap) (Entered: 05/15/2001)
MOTION by plaintiffs Norman C Jones, Terry Fuller, Douglas George Jr, Thomas Haywood, Harlan Bennett, Donald Newell, Nathaniel Bell, Trent Perry and Franklin Dale Thompson to bar expert testimony (Original in case file 99 cv 1959) (yap) (Entered: 05/15/2001)
MOTION by plaintiffs Norman C Jones, Terry Fuller, Douglas George Jr, Thomas Haywood, Harlan Bennett, Donald Newell, Nathaniel Bell, Trent Perry and Franklin Dale Thompson to compel discovery into financial matters (Attachments); Notice (Original in case file 99 cv 1959) (yap) (Entered: 05/24/2001)
MOTION by Norman C Jones, Terry Fuller, Douglas George Jr, Thomas Haywood, Harlan Bennett, Donald Newell, Nathaniel Bell, Trent Perry and Franklin Dale Thompson for sanctions and to compel ; Notice (Original in case file 99 cv 1959) (yap) (Entered: 05/24/2001)
MOTION by plaintiff to compel production of documents regarding defendant's experts (Attachments); Notice (Original in case file 99 cv 1959) (yap) (Entered: 05/24/2001)
EMERGENCY MOTION by defendant to compel the continued deposition of Franklin Thompson ; Notice (Original in case file 99 cv 1959) (yap) (Entered: 05/24/2001)

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05/21/2001 05/22/2001 05/22/2001 05/22/2001
05/22/2001
05/22/2001 05/23/2001 05/24/2001
05/24/2001 05/29/2001 05/31/2001 05/31/2001 06/01/2001

MOTION by defendant to compel response to defendant's third set of interrogatories to plaintiffs and production of Norm Jones's statements (Attachments); Notices (Original in case file 99 cv 1959) (yap) (Entered: 05/24/2001)
47 MINUTE ORDER of 5/22/01 by Hon. Ian H. Levin: Plaintiff's motion to compel production of documents regarding defendant's experts [0-1] is withdrawn without prejudice. No notice (yap) (Entered: 05/24/2001)
48 MINUTE ORDER of 5/22/01 by Hon. Ian H. Levin: Defendant's emergency motion to compel the continued deposition of Franklin Thompson [0-1] is granted on terms stated of record. No notice (yap) (Entered: 05/24/2001)
49 MINUTE ORDER of 5/22/01 by Hon. Ian H. Levin: Norman Jones, Terry Fuller, Douglas George, Jr, Thomas Haywood, Harlan Bennett, Donald Newell, Nathaniel Bell, Trent Perry, Franklin Dale Thompson and Derrick Lee's motion for sanctions [0-1] is denied. Motion to compel [0-2] is granted on the terms stated for reasons stated of record. No notice (yap) (Entered: 05/24/2001)
50 MINUTE ORDER of 5/22/01 by Hon. Ian H. Levin: Defendant's motion to compel response to defendant's third set of interrogatories to plaintiffs and production of Norm Jones's statements [0-1] is granted in part and denied in part on terms stated and reasons stated of record. No notice (yap) (Entered: 05/24/2001)
51 MINUTE ORDER of 5/22/01 by Hon. Ian H. Levin: Renewed motion to compel discovery into financial matters [0-1] is granted. Hearing is set for 5/23/01 at 4:00 p.m. No notice (yap) (Entered: 05/24/2001)
Document Sealed (pursuant to Court Order) (yap) (Entered: 05/24/2001)
52 MINUTE ORDER of 5/24/01 by Hon. Ian H. Levin: In camera exmainations hearing held. The court performed an in camera examination. It is hereby order of court that the documents that were disclosed are placed under seal. Mailed notice (yap) (Entered: 05/24/2001)
ADDENDUM by plaintiff to objections to Magistate Judge's Order of 05/09/01 ; Notice. (In 99C1959) (tlm) (Entered: 06/01/2001)
53 REPLY by plaintiff to defendant's objection to Magistrate Judge Levin's 5/9/01 order barring defendant from asking EEOC claimants whether they have ever been arrested; Notice (yap) (Entered: 05/29/2001)
54 MOTION by defendant to strike and/or to quash notice of 30(B)(6) deposition (Attachment); Notice (yap) (Entered: 06/04/2001)
MOTION by defendant to compel psychlogist and therapist depositions (Attachments); Notice (Original in case file 99 cv 1959) (yap) Modified on 06/04/2001 (Entered: 06/04/2001)
55 MINUTE ORDER of 6/1/01 by Hon. Ian H. Levin : Status hearing set to

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06/01/2001 06/06/2001 06/07/2001 06/08/2001 06/14/2001 06/14/2001 06/14/2001 06/15/2001 06/15/2001 06/15/2001 06/15/2001 06/15/2001 06/15/2001 06/15/2001

6/1/01 at 9:30 a.m. Motion to compel psychlogist and therapist depositions [0-1] is granted without objections on the terms stated of record. Motion to strike [54-1] and or quash notice of 30(B)(6) deposition [54-2] is granted. Defendant's oral motion to quash deposition notice is denied for the reasons stated and on the terms stated of record. Mailed notice (yap) (Entered: 06/04/2001)
RESPONSE by defendant to plaintiffs' objections to Magistrate Judge Levin's order of May 9, 2001 (Original in 99-cv-1959). (lc) Modified on 06/06/2001 (Entered: 06/05/2001)
OBJECTIONS by defendant to Magistrate Judge's 5/222/01 order regarding defendant's financial information [51-2] (Attachment); Notice (Original in case file 99 cv 1959) (yap) (Entered: 06/11/2001)
56 OBJECTIONS by plaintiff to Magistrate Judge's May 24, 2001 order based on in camera review of documents [52-1] (Attachments); Notice (yap) (Entered: 06/07/2001)
MOTION by defendant to quash subpoenas (Attachments); Notice. (In 99C1959) (tlm) (Entered: 06/20/2001)
57 TRANSCRIPT of proceedings for the following date(s): 4/3/01 Before Honorable Magistrate Judge Ian H. Levin (yap) (Entered: 06/14/2001)
62 MOTION by plaintiff to compel answers to interrogatories (Attachments); Notice. (Original in 99C1959) (tlm) (Entered: 06/20/2001)
MOTION by plaintiff for sanctions and to disqualify ; Notice (Original in case file 99 cv 1959) (yap) (Entered: 06/21/2001)
RESPONSE by Scientific Colors to EEOC's objections to Magistrate Judge's 05/24/01 Order based on in-camera review of documents. (In 99C1959) (tlm) (Entered: 06/19/2001)
58 RESPONSE by Scientific Colors to EEOC's motion to compel answers to interrogatories. (tlm) (Entered: 06/19/2001)
59 OBJECTIONS by defendant to Magistate Judge Levin's Order of 06/01/01 requiring the deposition of one of the attorneys for the defendant. [55-2] (tlm) (Entered: 06/19/2001)
60 MEMORANDUM by defendant in support of its objections to Magistrate Judge Levin's order requiring the deposition of one of the attorneys for the defendant (Attachments). [59-1] (tlm) (Entered: 06/19/2001)
RESPONSE by Scientific Colors to the EEOC motion to compel answers to interrogatories. (In 99C1959) (tlm) (Entered: 06/19/2001)
OBJECTIONS by defendant to Magistrate Judge Levin's Order of 06/01/01 requiring the deposition of one of the attorneys for the defendant [55-2]. (In 99C1959) (tlm) (Entered: 06/19/2001)
MEMORANDUM by defendant in support of its objection to Magistrate

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06/18/2001 06/18/2001 06/19/2001 06/19/2001 06/20/2001 06/20/2001 06/20/2001 06/20/2001
06/25/2001 06/25/2001 06/28/2001 06/28/2001

Judge Levin's order requiring the deposition of one of the attorneys for the defendant (Attachments). [0-1] (In 99C1959) (tlm) (Entered: 06/19/2001)
RESPONSE by plaintiff to defendant's objections to Magistrate Judge's order of 5/22/01 regarding financial information [0-1] (Attachments); (Original in case file 99 cv 1959) (yap) (Entered: 06/21/2001)
RESPONSE by plaintiff to defendant's objections to Magistrate Judge's Order to 5/22/01 regarding defendant's motion to compel response to third set of interrogatories; Notice (Original in case file 99 cv 1959) (yap) (Entered: 06/21/2001)
61 MINUTE ORDER of 6/19/01 by Hon. Ian H. Levin : Defendant's motion to quash subpoenas is granted [0-1] for the reasons stated of record. Mailed notice (tlm) (Entered: 06/20/2001)
63 MINUTE ORDER of 6/19/01 by Hon. Ian H. Levin : Plaintiff's motion to compel answers to interrogatories is granted [62-1] for the reasons stated of record. Answers to interrogatories due by 06/26/01. No notice (tlm) (Entered: 06/20/2001)
REPLY brief by defendant to plaintiff's response to defendant's objection to Magistrate Judge's Order of 5/22/01 regarding defendant's motion to compel response to third set of interrogatories [0-1] (Original in case file 99 cv 1959) (yap) (Entered: 06/21/2001)
REPLY by defendant to plaintiff's response to defendant's objection to Magistrate Judge's Order of 5/22/01 regarding financial information [0-1] (Original in case file 99 cv 1959) (yap) (Entered: 06/21/2001)
RESPONSE by defendant to plaintiff's motion for contempt order (Original in case file 99 cv 1959) (yap) (Entered: 06/21/2001)
68 MINUTE ORDER of 6/20/01 by Hon. David W. McKeague: EEOC's objection to Magistrate Judge Levin's order of 5/22/01 is overruled. Entered Memorandum Opinion and Order on objections to various Magistrate Judge Rulings. Mailed notices by judge's staff (yap) (Entered: 07/03/2001)
MOTION by Norman C Jones for leave to file second amended complaint in 99C1959 (Attachment); Notice. (In 99C1959) (tlm) (Entered: 06/26/2001)
MOTION by Norman C Jones for extend time for filing its dispositive motions ; Notice. (In 99C1959) (tlm) (Entered: 06/26/2001)
64 RESPONSE by plaintiff to defendant's objection to the Magistrate Judge Levin's ruling requiring the deposition of Daniel Kinsella [0-1] (Attachments) (yap) (Entered: 06/28/2001)
65 RESPONSE by EEOC to defendant's motion for extension of time in which to file dispositive motions [0-1] (ar) (Entered: 07/02/2001)

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06/28/2001 06/29/2001 06/29/2001 07/02/2001 07/05/2001 07/09/2001
07/09/2001
07/09/2001
07/12/2001 07/12/2001

69 MOTION by plaintiff to determine sufficiency of objections to request for admissions (Attachments); Notices (yap) (Entered: 07/10/2001)
66 MOTION by EEOC for partial summary judgment ; Memorandum in support (Attachments); Notice (ar) (Entered: 07/02/2001)
67 EXHIBITS by EEOC in support of its motion for partial summary judgment [66-1] on affirmative defenses 4,5,6,8, and 10 (1 vol.) (ar) (Entered: 07/02/2001)
RESPONSE by intervenor plaintiffs Norman C Jones, Terry Fuller, Douglas George Jr, Thomas Haywood, Harlan Bennett, Donald Newell, Nathaniel Bell, Trent Perry, Franklin Dale Thompson to motion for extend time for filing its dispositive motions; Notice. [0-1] (In 99C1959) (tlm) (Entered: 07/05/2001)
MOTION by defendant for leave to file a reply to the EEOC's response to deendant's objection to Magistrate Judge Levin's ruling requiring the deposition of Daniel Kinsella (Attachments); Notice. (In 99C1959) (tlm) (Entered: 07/06/2001)
70 MINUTE ORDER of 7/9/01 by Hon. Ian H. Levin: Answer brief to plaintiff's motion for sanctions [0-1] and to disqualify [0-2] due 7/30/01. Reply to answer brief due 8/6/01. Status hearing held; continued to 8/13/01 at 9:30 a.m. Plaintiff's to file an amended motion for sanctions and for disqualify by 7/16/01. Response due by 7/30/01.. Reply due by 8/6/01. Motion to determine sufficiency of objections to request for admissions [69-1] is withdrawn without prejudice. By agreement, defendant to answer by 7/19/01. Mailed notice (yap) (Entered: 07/10/2001)
72 MINUTE ORDER of 7/9/01 by Hon. David W. McKeague: Defendant's motion for leave to file a reply to the EEOC's response to deendant's objection to Magistrate Judge Levin's ruling requiring the deposition of Daniel Kinsella [0-1] is granted. It is ordered that the proposed reply brief be received by the Clerk of Court for filing. (Entered Order granting leave to file reply brief). Mailed notices by judge's staff (yap) (Entered: 07/26/2001)
73 MINUTE ORDER of 7/9/01 by Hon. David W. McKeague: The court thus finding that the magistrate judge's denial of defendant's motion to quash is neither clearly erroneous nor contrary to law, the same is hereby sustained and defendant's objections are overruled. Entered Memorandum Opinion and Order sustaining Magistrate Judge's Ruling. Mailed notices by judge's staff (yap) (Entered: 07/26/2001)
71 TRANSCRIPT of proceedings for the following date(s): 3/13/01 Before Honorable Magistrate Judge Ian H. Levin (yap) (Entered: 07/12/2001)
TRANSCRIPTS of proceedings for the following date(s): 05/23/01 & 06/01/01 Before Honorable Ian H. Levin. (Vols. 128-I and 128-II, In 99C1959) (tlm) (Entered: 07/13/2001)

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07/16/2001 07/17/2001 07/18/2001 07/18/2001 07/26/2001 07/27/2001 07/27/2001 07/30/2001
07/31/2001 08/01/2001 08/01/2001 08/01/2001 08/01/2001

TRANSCRIPT of proceedings for the following date(s): 05/22/01 Before Honorable Ian H. Levin. (In 99C1959) (tlm) (Entered: 07/19/2001)
OPPOSITION by defendant to plaintiff's motion for leave to amend complaint in 99C1959. (In 99C1959) [0-1] (tlm) (Entered: 07/24/2001)
AMENDED MOTION by Plaintiffs, Norman C Jones, Terry Fuller, Douglas George Jr, Thomas Haywood, Harlan Bennett, Donald Newell, Nathaniel Bell, Trent Perry, Franklin Dale Thompson for sanctions and to disqualify ; Notice. (tlm) (Entered: 07/19/2001)
EXHIBITS by intervenor plaintiff motion for sanctions [0-1], motion to disqualify. [0-2] (In 99C1959) (tlm) (Entered: 07/19/2001)
74 MOTION by plaintiff to compel deposition of Dan Kinsella (Attachments); Notice (yap) (Entered: 08/02/2001)
MOTION by defendant for leave to file excess page memorandum in opposition to plaintiffs' amended motion for sanctions and to disqualify . (In 99C1959) (tlm) (Entered: 07/30/2001)
MEMORANDUM by defendant in opposition to plaintiffs' amended motion for sanctions [0-1] and to disqualify [0-2] (Attachments). (Original in case 99 CV 1959) (cem) Modified on 08/08/2001 (Entered: 08/08/2001)
76 MINUTE ORDER of 7/30/01 by Hon. David W. McKeague: Plaintiffs' motion for leave to file their proposed second amended complaint [0-1] is granted, subject to the condition that the resulting withdrawal of plaintiff Norman Jones' constructive discharge theory of relief is deemed equivalent to a voluntary dismissal with prejudice. Entered Memorandum Opinion and Order. Mailed notices by judge's staff (yap) (Entered: 08/06/2001)
75 MINUTE ORDER of 7/31/01 by Hon. Ian H. Levin: Motion to compel deposition of Dan Kinsella [74-1] is granted. Dan Kinsella is hereby ordered to be produced for deposition by 8/21/01 at 9:00 a.m. Mailed notice (yap) (Entered: 08/02/2001)
MOTION by defendant for summary judgment against Garry Carter Memorandum in Support (Attachments) (Original in case file 99 cv 1959) (yap) (Entered: 08/06/2001)
MOTION by defendant for summary judgment against Jack Smith Memorandum in Support (Attachments) (Original in case file 99 cv 1959) (yap) (Entered: 08/06/2001)
MOTION by defendant for partial summary judgment as to claims arising out of political symbols Memorandum in Support (Original in case file 99 cv 1959) (yap) (Entered: 08/06/2001)
MOTION by defendant for summary judgment on plaintiff Donald Newell's complaint (Attachments) Memorandum in Support (Original in case file 99 cv 1959) (yap) (Entered: 08/06/2001)

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08/01/2001 08/01/2001 08/01/2001 08/01/2001 08/01/2001 08/01/2001 08/01/2001 08/01/2001
08/01/2001 08/01/2001 08/01/2001 08/01/2001 08/01/2001 08/01/2001

MOTION by defendant for summary judgment against Christopher Shapp (Attachment) Memorandum in support Original in case file 99 cv 1959 (yap) (Entered: 08/06/2001)
MOTION by defendant for summary judgment against Cager Chapman Memorandum in Support (Attachment) (Original in case file in case file 99 cv 1959) (yap) (Entered: 08/06/2001)
MOTION by defendant for summary judgment against Tomeker Robertson Memorandum in support (Attachments) (Original in case file 99 cv 1959) (yap) (Entered: 08/06/2001)
MOTION by defendant for summary judgment against Michael Poole (Attachment) Memorandum in Support (Original in case file 99 cv 1959) (yap) (Entered: 08/06/2001)
MOTION by defendant for partial summary judgment as to the Noose at Flusher No. 12 (Attachment) Memorandum in support; (Original in case file 99 cv 1959) (yap) (Entered: 08/06/2001)
MOTION by defendant for summary judgment as to Nathaniel Bell's claims of disparate treatment and Hostile environment Memorandum in Support (Original in case file 99 cv 1959) (yap) (Entered: 08/06/2001)
MOTION by defendant for summary judgment as to the claims of plaintiff, Douglas George Memorandum in Support (Original in case file 99 cv 1959) (yap) (Entered: 08/06/2001)
MOTION by defendant for partial summary judgment as to plaintiff's claims for hostile environment arising out of anonymous graffiti Memorandum in Support (Original in case file 99 cv 1959) (yap) (Entered: 08/06/2001)
MOTION by defendant for summary judgment on plaintiff Norman Jones' complaint (Attachment) Memorandum in support (Original in case file 99 cv 1959) (yap) (Entered: 08/06/2001)
MOTION by defendant for summary judgment on plaintiff Derrick Lee claims of disparate treatment and of hostile environment Memorandum in support (Original in case file 99 cv 1959) (yap) (Entered: 08/06/2001)
MOTION by defendant for summary judgment on plaintiff Harlan Bennett's complaint Memorandum in support (Otiginal in case file 99 cv 1959) (yap) (Entered: 08/06/2001)
MOTION by defendant for summary judgment on plaintiff Trent Perry's complaint Memorandum in Support (Original in case file 99 cv 1959) (yap) (Entered: 08/06/2001)
MOTION by defendant for summary judgment on plaintiff's pattern or practice allegations (Attachments) (Original in case file 99 cv 1959) (yap) (Entered: 08/06/2001)
MOTION by defendant for summary judgment on plaintiff Thomas

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08/01/2001 08/01/2001
08/01/2001 08/01/2001 08/01/2001 08/02/2001 08/03/2001 08/06/2001 08/06/2001 08/06/2001 08/06/2001 08/10/2001

Haywood's complaint (Attachments) Memorandum in Support (Original in case file 99 cv 1959) (yap) (Entered: 08/06/2001)
MOTION by defendant for summary judgment on plaintiff Terry Fuller's claims of disparate treatment and of hostile environment Memorandum in support (Original in case file 99 cv 1959) (yap) (Entered: 08/06/2001)
MASTER MEMORANDUM of law by defendant in support of defendant's motions for summary judgment as to claims by Harlan Bennett, Terry Fuller, Franklin Dale Thompson, Norman Jones, Donald Newell, Nathaniel Bell, Derrick Lee, Thomas Haywood, Trent Perry, Douglas George and Allen Wright (Original in case file 99 cv 1959) (yap) (Entered: 08/06/2001)
AFFIDAVITS and Exhibits of Gary Bennett, Richard Baum, Dennis Cline, Benard Hermley, Verlin Johnson, Matt McClure, Margaret Muhr, Thomas Rogers, Frank Wierenga and Carl Zusag (Attachments); Notice (Original in case file 99 cv 1959) (yap) (Entered: 08/06/2001)
MEMORANDUM of law by defendant in support of its motion for summary judgment on plaintiff Allen Wright complaint (Original in case file 99 cv 1959) (yap) (Entered: 08/06/2001)
MOTION by defendant for summary judgment as to Franklin Thompson's claims of disparate treatment and hostile enviroment Memorandum in support (Original in case file 99 cv 1959) (yap) (Entered: 08/07/2001)
MOTION by intervenor plaintiffs for clarification of this court's 05/22/01 Order regarding defendant's financial information (Attachments); Notice. (In 99C1959) (tlm) (Entered: 08/09/2001)
MOTION by plaintiff for summary judgment on defendant's affirmative defenses 5,6 and 8 ; Notice (Original in case file 99 cv 1959) (yap) (Entered: 08/06/2001)
MOTION by defendant for leave to file affidavits of John Ott and Bruce Wright (Original in case file 99 cv 1959) (yap) (Entered: 08/06/2001)
MOTION by Scientific Colors for leave to file defendant's motion to dismiss certain class members for failure to respond to court ordered discovery, instanter . (In 99C1959) (tlm) (Entered: 08/07/2001)
RESPONSE by defendant to plaintiff's motion for clarification of this Court's 05/22/01 Order regarding defendant's financial information. (In 99C1959) (tlm) (Entered: 08/07/2001)
MOTION by defendant for leave to file the motion for summary judgment on Plaintiff Allen Wright's complaint, instanter (Attachment). (In 99C1959) (tlm) (Entered: 08/07/2001)
ATTORNEY APPEARANCE for Scientific Colors (Appollo Colors) by Eric John Essley (In 99C1959). (tlm) (Entered: 08/14/2001)

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Page 18 of 24

08/13/2001 08/13/2001 08/15/2001 08/20/2001 08/30/2001
08/30/2001 08/31/2001 08/31/2001 09/06/2001 09/20/2001 09/20/2001 09/25/2001 09/25/2001
10/10/2001

MOTION by defendant for leave to file deposition trancripts and exhibits (Attachments). (In 99C1959) (tlm) (Entered: 08/14/2001)
77 MINUTE ORDER of 8/13/01 by Hon. Ian H. Levin: Motion for sanctions [0-1] and to disqualify [0-2] is taken under advisement for ruling. Status hearing held. Mailed notice (yap) (Entered: 08/15/2001)
REPLY by plaintiffs in support of amended motion for sanctions [0-1] and to disqualify (Attachments); Notice. [0-2] (In 99C1959) (tlm) (Entered: 08/16/2001)
MOTION by defendant to dismiss certain class members for failure to respond to court-ordered discovery (Attachments). (In 99C1959) (tlm) (Entered: 09/06/2001)
79 MINUTE ORDER of 8/30/01 by Hon. Ian H. Levin: Plaintiff's motion for sanctions [0-1] and to disqualify [0-2] is set for oral argument 11/15/01 at 3:15 a.m. in courtroom 1342. Mailed notice (yap) (Entered: 09/04/2001)
MOTION by plaintiffs to compel payment of expert's fees pursuant to FRCP 26(b)(4)(C) (Attachments); Notice. (In 99 C 1959) (tlm) (Entered: 10/01/2001)
78 MOTION by plaintiff for extension of time in which to file its response to defendant's motions for partial summary judgment and for leave to file brief in excess of 25 pages ; Notice (yap) (Entered: 09/04/2001)
RESPONSE by EEOC to Appollo's motion to dismiss certain class members for failure to respond to discovery. [0-1] (In 99C1959) (tlm) Modified on 09/06/2001 (Entered: 09/06/2001)
RESPONSE by defendant to motions of EEOC and indivvidual plaintiffs for extension of time to file response and for other relief. [78-1] (In 99C1959) (tlm) (Entered: 09/10/2001)
MOTION by defendant to disqualify Steven Hofman (Attachment); Notice. (In 99C1959) (tlm) (Entered: 09/24/2001)
RESPONSE by defendant to motion to compel expert fees; Notice. (In 00C171) (tlm) (Entered: 09/24/2001)
80 MINUTE ORDER of 9/25/01 by Hon. Ian H. Levin: Defendant's oral motion for leave to court to file the deposition taken on 5/31/01 of Steven Hoffman is granted. Mailed notice (yap) (Entered: 10/01/2001)
81 MINUTE ORDER of 9/25/01 by Hon. Ian H. Levin : Plaintiffs' motion to compel payment of expert's fees pursuant to FRCP is granted [0-1]. It is hereby ordered of court that the defendant shall pay plaintiffs' expert's fees in the amount of $3,602.11 for reasons stated of record. Mailed notice (tlm) (Entered: 10/01/2001)
RESPONSE by defendant to plaintiff/counter-defendant Norman Jones' Rule 12(B)(1) motion to dismiss defendants counter-complaint: Notice

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10/10/2001
10/10/2001 10/10/2001 10/10/2001 10/10/2001 10/10/2001 10/10/2001 10/10/2001 10/10/2001 10/10/2001
10/10/2001 10/10/2001

(Original in case file 00 cv 171) (yap) (Entered: 10/11/2001)
RESPONSE by defendant/counter-plaintiff's response to plaintiff/counter-defendant's motion for summary judgment upon defendant/counter-plaintiff's counterclaim for common law fraud (Attachment)(Original in case file 99 cv 1959) (yap) (Entered: 10/11/2001)
RESPONSE by Scientific Colors, Inc., d/b/a Apollo Colors, Inc., to EEOC and plaintiffs' motion for partial summary judgment on defendant's affirmative defenses 4,5,6,8, and 10 [0-1]. (Original in 99-C1959) (ar) (Entered: 10/16/2001)
OBJECTIONS by plaintiffs Norman C Jones, Terry Fuller, Douglas George Jr, Thomas Haywood, Franklin Dale Thompson to Magistrate Judge's order of 09/28/01 [81-1] (Attachments); Notice. (Original in 99C-1959) (ar) Modified on 10/16/2001 (Entered: 10/16/2001)
COMBINED STATEMENT of facts by plaintiffs; Notice. (Original in 99-CV-1959) (ar) (Entered: 10/16/2001)
COMBINED RESPONSE memorandum by plaintiffs to defendant's motions for partial summary judgment as to plaintiff's claims for hostile environment arising out of "anonymous" graffiti [0-1] and the "Flusher 12" Noose [0-1]. (Original in 99-CV-1959) (ar) (Entered: 10/16/2001)
RESPONSE memorandum by plaintiffs in support of employer liability. (Original in 99-CV-1959) (ar) (Entered: 10/16/2001)
RESPONSE by plaintiffs to Apollo Colors' motion for summary judgment on plaintiff's pattern or practice allegations [0-1]. (Original in 99-CV-1959) (ar) (Entered: 10/16/2001)
MEMORANDUM by Norman C Jones in support of his response to defendant's motions for summary judgment [0-1]. (Original in 99-CV1959) (ar) (Entered: 10/16/2001)
MEMORANDUM by Terry Fuller in support of his response to defenant's motions for summary judgment [0-1] (Original in 99-CV1959) (ar) Modified on 10/17/2001 (Entered: 10/16/2001)
MEMORANDUM by plaintiffs Norman C Jones, Terry Fuller, Douglas George Jr, Thomas Haywood, Harlan Bennett, Donald Newell, Nathaniel Bell, Franklin Dale Thompson, Trent Perry in support of their response to defendant's motion for summary judgment as to claims arising out of political symbols [0-1]. (Original in 99-CV-1959) (ar) (Entered: 10/16/2001)
MEMORANDUM by Douglas George Jr in support of his response to defendant's motion for summary judgment [0-1]. (Original in 99-CV1959) (ar) (Entered: 10/16/2001)
MEMORANDUM by Donald Newell in support of his response to defendant's motion for summary judgment [0-1]. (Original in 99-CV-

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Page 20 of 24

10/10/2001 10/10/2001 10/10/2001 10/10/2001 10/10/2001 10/10/2001 10/10/2001 10/10/2001 10/15/2001
10/17/2001
10/17/2001

1959) (ar) (Entered: 10/16/2001)
MEMORANDUM by Franklin Thompson in support of his responses to defendant's motions for summary judgment [0-1]. (Original in 99-CV1959) (ar) Modified on 10/17/2001 (Entered: 10/17/2001)
MEMORANDUM by Nathaniel Bell in support of his responses to defendant's motions for summary judgment [0-1]. (Original in 99-CV1959) (ar) Modified on 10/17/2001 (Entered: 10/17/2001)
MEMORANDUM by Harlan Bennett in support of his responses to defendant's motions for summary judgment [0-1]. (Original in 99-CV1959) (ar) Modified on 10/17/2001 (Entered: 10/17/2001)
MEMORANDUM by Trent Perry in support of his responses to defendant's motions for summary judgment [0-1]. (Original in 99-CV1959) (ar) Modified on 10/17/2001 (Entered: 10/17/2001)
MEMORANDUM by Thomas Haywood in support of his response to defendant's motion for summary judgment [0-1]. (Original in 99-CV1959) (ar) Modified on 10/17/2001 (Entered: 10/17/2001)
MASTER TABLE of exhibits by plaintiffs to responses to motions for summary judgment (4 vols.) (Originals in 99-CV-1959) (ar) (Entered: 10/17/2001)
RESPONSE by EEOC to Apollo Colors' motions for summary judgment (Attachments) [0-1]. (Original in 99-CV-1959) (ar) (Entered: 10/17/2001)
ATTACHMENTS Numbered 1,1,2 and 3 by EEOC to its response [0-1] to Apollo Colors' motions for summary judgment (4 vols.) (Originals in 99-CV-1959) (ar) (Entered: 10/17/2001)
82 MINUTE ORDER of 10/15/01 by Hon. David W. McKeague: Plaintiff's motion for extension of time [188-1] is granted. Plaintiffs' response to defendant's motion to disqualify plaintiffs' expert shall be filed not later than 10/31/01 [0-1]. (Entered Order granting extension of time). Mailed notices by judge's staff (yap) (Entered: 10/22/2001)
NOTICE by intervenor plaintiffs Norman C Jones, Terry Fuller, Douglas George Jr, Thomas Haywood, Harlan Bennett, Donald Newell, Nathaniel Bell, Trent Perry, Franklin Dale Thompson regarding revised signature page for plaintiffs' response to Apollo Colors' motion for summary judgment on plaintiffs' pattern and practice allegations [0-1]. (Original in 99cv1959) (air) Modified on 10/19/2001 (Entered: 10/19/2001)
NOTICE by intervenor plaintiffs Norman C Jones, Terry Fuller,Douglas George Jr, Thomas Haywood, Harlan Bennett, Donald Newell, Nathaniel Bell, Trent Perry, Franklin Dale Thompson regarding revised signature page for plaintiffs' response to apollo colors' motion for summary judgment on plaintiffs' pattern and practice allegations [0-1](Original in 99cv1959) (air) Modified on 10/19/2001 (Entered: 10/19/2001)

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Page 21 of 24

10/31/2001 10/31/2001 10/31/2001 10/31/2001 10/31/2001 11/01/2001 11/01/2001 11/01/2001 11/01/2001 11/05/2001
11/06/2001

REPLY memorandum by plaintiff in support of motion for summary judgment on defendant's affirmative defenses 4,5, 6,8 and 10 [0-1]; Notice (Original in case file 99 cv 1959) (yap) (Entered: 11/06/2001)
MOTION by defendant for judgment upon Derrick Lee's and Allen Wright's claims pursuant to Rule 56(c) and for further relief (Attachments); Notice (Original in case file 99 cv 1959) (yap) (Entered: 11/06/2001)
MOTION by defendant for leave to file a reply to the EEOC's response to Apollo's motions for summary judgment in excess of the standard page limit instanter (Attachments); Notice (Original in case file 99 cv 1959) (yap) (Entered: 11/06/2001)
AFFIDAVIT of Bruce Wright (Attachments); Notice (Original in case file 99 cv 1959) (yap) (Entered: 11/07/2001)
MOTION by defendant for leave to file a reply to the EEOC's response to Apollo's motions for summary judgment in excess of the standard page limit instanter (Attachments); Notice (Original in case file 99 cv 1959) (yap) (Entered: 11/08/2001)
SUPPLEMENTAL authority by plaintiffs in support of their objections to Magistrate Judge's order of 9/28/01; Notice (Original in case file 99 cv 1959) (yap) (Entered: 11/07/2001)
REPLY by Norman C Jones in support of summary judgment (Attachment); Notice (Original in case file 99 cv 1959) (yap) Modified on 11/07/2001 (Entered: 11/07/2001)
REPLY by Norman C Jones in support of his 12(B)(1) motion to dismiss; Notice (Original in case file 99 cv 1959) (yap) Modified on 11/08/2001 (Entered: 11/08/2001)
84 RESPONSE by intervenor plaintiffs to defendant's motion to disqualify Steven Hofman [0-1] (Attachments); Notice (Original in case file 99 cv 1959) (yap) Modified on 11/08/2001 (Entered: 11/08/2001)
83 MINUTE ORDER of 11/5/01 by Hon. Ian H. Levin : Entered Memorandum Opinion and Order. Plaintiff's motion [114-1 114-2] and amended motion for sanctions and to disqualify [130-1, 130-2] are hereby denied. Motion hearing set for 11/5/01 is stricken. Mailed notices by judge's staff (yap) (Entered: 11/07/2001)
SIXTEEN volumes of deposition transcripts, each with exhibits attached: Donald Newell taken on 01/19/01, Trent Perry taken on 02/15/01 and on 02/21/01 (2 vols.), Franklin Dale Thompson taken on 04/25/01 and on 05/30/01 (2 vols.), Douglas George taken on 11/21/00, Terry Fuller taken on 11/30/01 and on 04/19/01 (2 vols.), Nathaniel Bell taken on 01/30/01, Derrick Lee taken on 05/16/01, Norman Jones taken on 08/16/00, 03/21/01, 04/16/01 (3 vols.), Harlon Bennett taken on 01/04/01, Thomas Haywood taken on 03/07/01, and Allen Wright taken on 03/20/01; Notice of filing. (Originals in 99-CV-1959). (ar) Modified on 11/07/2001

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Page 22 of 24

11/06/2001
11/08/2001 11/13/2001 11/15/2001 11/19/2001 11/20/2001 12/06/2001 12/06/2001 12/06/2001 12/17/2001
01/09/2002
01/10/2002 01/11/2002

(Entered: 11/07/2001)
SUPPLEMENTAL REPLY by defendant to plaintiff's response to Apollo's motions for summary judgment as to claims arising out of political symbols (Attachment); Notice (Original in case file 99 cv 1959) (yap) Modified on 11/09/2001 (Entered: 11/09/2001)
MOTION by plaintiff to dismiss pursuant to Rule 41 of the Federal Rules of Civil Procedure ; Notice (Original in case file 99 cv 1959) (yap) (Entered: 11/15/2001)
RESPONSE by defendant to plaintiffs' objections to Magistrate Judge's 9/28/01 order [0-1] (Attachments) (Original in case file 99 cv 1959) (yap) (Entered: 11/16/2001)
RESPONSE by defendant to plaintiffs' motion to dismiss [0-1] (Attachment); Notice (Original in case file 99 cv 1959) (yap) (Entered: 11/19/2001)
OBJECTIONS by plaintiff to Magistate Judge's order of 11/5/01 [83-2] (Attachments); Notice (Original in case file 99 cv 1959) (yap) (Entered: 11/21/2001)
MOTION by defendant to continue trial one month, or such other period of time convenient to the court and the parties ; Notice (Original in 99cv-1959). (lc) Modified on 11/29/2001 (Entered: 11/29/2001)
DEPOSITION of Michele A. Ratkovich taken on the following date(s): 5/31/01 (Original in case file 99 cv 1959) (yap) (Entered: 12/10/2001)
NOTICE by Steven Hoffman of filing his deposition [0-1] (Original in case file 99 cv 1959) (yap) (Entered: 12/10/2001)
RESPONSE by defendant in opposition to plantiffs' objections to Magistrate Judge's order of 11/5/01 [0-1] (Attachments); Notice (Original in case file 99 cv 1959) (yap) (Entered: 12/11/2001)
NON-PLAINTIFF depositions excerps and affidavits (A-Z) to support Apollo's motion for summary judgment and reply briefs by defendant; (238-1 through 238-4); Notices; (Original in 99 cv 1959). (cdy) (Entered: 12/20/2001)
86 MINUTE ORDER of 1/9/02 by Hon. David W. McKeague: Motion for partial summary judgment [66-1] is granted in part and denied in part. Motion for extension of time in which to file its response to defendant's motions for partial summary judgment [78-1] is granted. Mailed notices by judge's staff (yap) (Entered: 02/01/2002)
85 TRANSCRIPT of proceedings for the following date(s): 9/25/01 Before Honorable Magistrate Judge Ian H. Levin (yap) (Entered: 01/11/2002)
SECOND AMENDED COMPLAINT [18-1] by plaintiffs; jury demand; Notice (Original in 99 cv 1959). (cdy) Modified on 01/22/2002 (Entered: 01/22/2002)

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Page 23 of 24

01/22/2002 01/22/2002 01/22/2002 02/19/2002 02/19/2002 02/19/2002 02/26/2002 02/28/2002
03/05/2002 03/13/2002
03/22/2002

MOTION by Derrick Lee for leave to file plaintiff's response to defendant's summary judgment motion instanter ; Notice. (Original in 99C1959) (air) (Entered: 01/23/2002)
RESPONSE by Derrick Lee to defendant's motion for summary judgment; Notice. (Original in 99C1959) (air) Modified on 01/23/2002 (Entered: 01/23/2002)
MOTION by Derrick Lee to vacate the dismissal order entered on 12/20/01 ; Affidavit of Jimmie L. Jones; Notice. (air) (Entered: 01/23/2002)
MOTION by intervenor plaintiff Allen Wright for leave to file his first amended complaint ; Notice (Original in 00 C 171) (las) (Entered: 02/21/2002)
87 ATTORNEY APPEARANCE for intervenor plaintiff Allen Wright by Timothy J. Rathbun, Frank Stephan Cservenyak, Allyson R Behm (yap) (Entered: 02/22/2002)
NOTICE of filing by plaintiff regarding amended appearance. (Original in 99cv1959) (emd) (Entered: 02/22/2002)
88 MINUTE ORDER of 2/26/02 by Hon. Ian H. Levin: All matters relating to the referral of this action having been resolved, the case is returned to the assigned judge. Terminating the case referral Mailed notice (yap) (Entered: 02/28/2002)
89 MINUTE ORDER of 2/28/02 by Hon. Ian H. Levin: Motion for contempt order [106-1] and motion for discovery sanctions [106-2] is hereby terminated without prejudice as moot, an objection having been filed to the underlying order the motion is based on. Mailed notices by judge's staff (yap) (Entered: 03/04/2002)
TRANSCRIPT of proceedings for the following date(s): 12/20/01 Before Honorable David W. Mckeague. (Original in 99C1959) (air) (Entered: 03/06/2002)
90 MINUTE ORDER of 3/13/02 by Hon. David W. McKeague : Settlement conference held on 2/22/02. Enter order for timely disposition. It is hereby ordered that the parties are mutually and jointly responsible for completing and submitting for approvial the proposed consent decree and orders of dismissal not later than 3/20/02. (Entered Order for Timely Disposition) Mailed notice by judge's staff (emd) Modified on 03/18/2002 (Entered: 03/18/2002)
91 MINUTE ORDER of 3/22/02 by Hon. David W. McKeague: Apollo shall pay the gross sum of one million eight hundred twenty five thousand dollars ($1,825,000) to be distributed as set forth in this consent decree. Each party to this decree shall bear its own expenses, costs and attorneys' fees. Any pending motions in this action [0-1] [0-1] [0-1] [0-1] [0-1] [0-1] [0-1] [0-1] [0-2] [0-1] [78-2] [0-1] [0-1] [0-1] [0-1] [0-1] [0-1] [0-1] [0-1] [0-1] [0-1] [0-1] [0-1] [0-1] [0-1] [0-1] [0-1] [0-1] [0-1] [0-1]

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03/22/2002 04/24/2002 04/24/2002
05/24/2002
05/24/2002 05/24/2002

[0-1] [0-1] [0-1] [0-1] [0-1] [0-1] [0-1] [0-1] [0-1] [0-1] [0-2] [0-1] [0-1] [0-2] [0-1] [0-1] [0-1] [0-1] and [0-1]. (Entered Consent Decree). Mailed notices by judge's staff (yap) (Entered: 03/27/2002)
92 ENTERED JUDGMENT (yap) (Entered: 03/27/2002)
STIPULATION to dismiss (yap) (Entered: 04/30/2002)
93 MINUTE ORDER of 4/24/02 by Hon. Marvin E. Aspen: It is ordered, consistent with the stipulation, that any and all claims of plaintiff Allen Wright against defendant Scientific Colors in these two consolidated cases shall be and are hereby dismissed with prejudice. (Entered Order of Partial Dismissal). Mailed notices by judge's staff (yap) (Entered: 04/30/2002)
94 MINUTE ORDER of 5/24/02 by Hon. David W. McKeague : All outstanding claims of plaintiffs are hereby dismissed with prejudice. (Entered Final Order of Dismissal.) Mailed notice by judge's staff (lc) (Entered: 06/07/2002)
STIPULATION to dismiss by intvp Franklin Dale Thompson and defendant Scientific Colors. (Original in 99C1959) (air) (Entered: 06/07/2002)
STIPULATION to dismiss by plaintiffs' Norman Jones, Terry Fuller, Douglas George, Jr., Thomas Haywood, Harlan Bennett, Donald Newell, Nathaniel Bell, Trent Perry and defendant Scientific Colors. (air) (Entered: 06/07/2002)

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 EEOC SETTLES RACIAL HARASSMENT SUIT FOR $1.8 MILLION AGAINST APO... Page 1 of 2

The U.S. Equal Employment Opportunity Commission

FOR IMMEDIATE RELEASE March 27, 2002

CONTACT: Ethan Cohen Trial Attorney (312) 353-7568
TTY: (312) 353-2421
John Hendrickson Regional Attorney (312) 353-8551

EEOC SETTLES RACIAL HARASSMENT SUIT FOR $1.8 MILLION AGAINST APOLLO
COLORS OF ILLINOIS

African-American Workers Subjected to Hangman's Nooses, Racist Slurs and Graffiti
CHICAGO - The U.S. Equal Employment Opportunity Commission (EEOC) today announced a $1,825,000 settlement of a racial harassment lawsuit on behalf of 32 current and former AfricanAmerican employees of Scientific Colors, Inc., doing business as Apollo Colors. According to the suit, the egregious harassment included racist graffiti, display of hangman's nooses, and racial epithets at the employer's facility in Rockdale, Ill. Apollo Colors is a manufacturer of pigments used in printing ink and employs approximately 200 people.
The settlement was entered as a Consent Decree by Judge David McKeague of Michigan sitting as a visiting judge in the federal district court in Chicago. EEOC filed the lawsuit in January 2000 under Title VII of the Civil Rights Act of 1964 after the failure of attempts to reach a voluntary pre-litigation settlement with the employer.
"Proactive prevention of employment discrimination is the EEOC's first priority," said Commission Chair Cari M. Dominguez. "We are pleased that Apollo Colors worked cooperatively with us to resolve this case and design creative measures to prevent racial harassment."
In addition to the monetary payment and an injunction prohibiting future racial harassment, the settlement requires the adoption and implementation of preventive discrimination measures at Apollo Colors. Among these measures are a policy against racial harassment (including camera monitoring of its facility to prevent racist graffiti), training for managers and employees, and periodic reporting to EEOC regarding complaints of any racial harassment which persists at the company.
Ethan Cohen, one of EEOC's trial attorneys in Chicago responsible for the government litigation, said that the Apollo case was important because it challenged a persistent problem in many industries engaged in manufacturing and production - harassment in the form of graffiti. "Racial harassment, including racist graffiti, is no more acceptable in a factory than at any other place of business. It's illegal, and companies that permit it to continue may be exposing themselves to costly risks, as this case demonstrates."
EEOC's suit was consolidated with a private case on behalf of other individuals involving the same issues. The nine individuals who brought the private action were represented by John Foreman and

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EEOC SETTLES RACIAL HARASSMENT SUIT FOR $1.8 MILLION AGAINST APO... Page 2 of 2
Christian Spesia of the Joliet, Ill.-based law firm Spesia, Ayers & Ardaugh.
John C. Hendrickson, Regional Attorney of the agency's Chicago District Office, said: "EEOC is more than satisfied with the litigation and resolution of this case. We view the Consent Decree announced today as a significant achievement in terms of both the money - which will be going to the past victims of harassment - and the measures, which will be instituted to improve the situation on the factory floor."
In addition to enforcing Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on race, color, religion, sex or national origin, the EEOC enforces the Age Discrimination in Employment Act, which protects workers 40 and older from discrimination based on age; the Equal Pay Act; Titles I and V of the Americans with Disabilities Act, which prohibits employment discrimination against people with disabilities in the private sector and state and local governments; prohibitions against discrimination affecting individuals with disabilities in the federal government; and sections of the Civil Rights Act of 1991. Further information about the Commission is available on the agency's Web site at www.eeoc.gov.
This page was last modified on March 27, 2002.
Return to Home Page

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 FY 2002 Office of General Counsel Annual Report

Page 1 of 1

z
 In an innovative case resolution, the company in EEOC v. Scientific Colors, Inc., d/b/a/ Apollo Colors not only agreed to inspect and remove any racial graffiti, derogatory references, images and photographs on a daily basis, but also to install video cameras in an effort to identify culpable employees. The racial harassment had included graffiti and hangmen's nooses. The company, a printing ink manufacturer, paid $1.45 million to private litigants in a consolidated suit and an additional $375,000 for 23 workers included in the EEOC's case.

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 Jones v. Scientific Colors, Inc., Not Reported in F.Supp.2d (2000)

Opinion

2000 WL 33243461 Only the Westlaw citation is currently available. United States District Court, N.D. Illinois, Eastern Division.
Norman JONES, et al. Plaintiffs, v.
SCIENTIFIC COLORS, INC., d/b/a Apollo Colors, Inc., Defendant, and
UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v.
SCIENTIFIC COLORS, INC., d/b/a Apollo Colors, Defendant.
Nos. 99C1959, 00C0171. | Nov. 15, 2000.

ORDER AFFIRMING ORDER DENYING PROTECTIVE ORDER

MCKEAGUE,* J.
*1 Defendant Scientific Colors, Inc., having moved the Court for a protective order to limit the deposition questioning of witnesses by counsel for plaintiff Equal Employment Opportunity Commission; and
Magistrate Judge Ian H. Levin having conducted a hearing on the motion on September 22, 2000 and having then issued a bench ruling denying the motion; and
Defendant having now objected to the magistrate judge’s ruling and asked the Court to reconsider it; and
The Court having duly considered the objections as well as the Equal Employment Opportunity Commission’s response thereto; and
The Court finding that deposition questions addressed to defendant’s employees concerning their knowledge of other employees’ membership in the Ku Klux Klan are reasonably calculated to lead to the discovery of admissible evidence (see Fed.R.Civ.P. 26(b)(1)); and
The Court further finding that defendant has no standing to assert any potential First Amendment rights of its employees; and
The Court further finding that defendant has failed to show that the magistrate judge’s ruling is clearly erroneous or contrary to law in any way (see 28 U.S.C. § 636(b)(1)(A); Fed.R.Civ.P. 72(a)); now therefore,
IT IS HEREBY ORDERED that defendant’s objections are OVERRULED and the order denying motion for protective order is AFFIRMED.

Footnotes

*

United States District Judge, Western District of Michigan, sitting by designation.

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 Jones v. Scientific Colors, Inc., Not Reported in F.Supp.2d (2001)

Opinion

2001 WL 668943 Only the Westlaw citation is currently available. United States District Court, N.D. Illinois, Eastern Division.
Norman JONES, et al. Plaintiffs, v.
SCIENTIFIC COLORS, INC., d/b/a Apollo Colors, Inc., Defendant. UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff,
v. SCIENTIFIC COLORS, INC., d/b/a Apollo Colors, Defendant.
Nos. 99 C 1959, 00 C 0171. | June 14, 2001.

MEMORANDUM OPINION AND ORDER UPHOLDING MAGISTRATE JUDGE’S ORDERS OF MAY 9, 2001
MCKEAGUE,* J.
*1 On May 9, 2001, Magistrate Judge Ian H. Levin conducted a hearing on various motions in these consolidated cases and issued rulings on three motions. First, he denied the motion of the individual plaintiffs, Norman Jones, et al., to bar testimony by expert witnesses whose names and reports were not timely disclosed by defendant Scientific Colors. Plaintiffs now object to this ruling pursuant to Fed. R. Civ.P. 72(a). Second, the magistrate judge denied the motion of defendant Scientific Colors to compel answers to certain deposition questions addressed to plaintiff Terry Fuller. Defendant objects to this ruling. And finally, the magistrate judge granted the motion of plaintiff Equal Employment Opportunity Commission (“EEOC”) to bar defendant from asking claimants in their depositions whether they have ever been arrested (unless the arrest has led to a conviction where the conviction or release from sentence occurred less than 12 years ago). Defendant also objects to this ruling.
Under Rule 72(a), any ruling of the magistrate judge will be modified or set aside only upon a showing that it is clearly erroneous or contrary to law.

I
Plaintiffs object to the denial of their motion to bar expert testimony. In denying the motion, the magistrate judge observed that excluding testimony is a harsh sanction. He also observed that defendant’s failure to identify rebuttal experts and furnish rebuttal expert reports by April 16, 2001, may have been attributable, at least in part, to an excusable misunderstanding on the part of defendant’s counsel. The magistrate judge ruled that defendant could have until May 15, 2001 to produce its rebuttal expert reports. Plaintiffs contend this extension of the deadline to a date a mere two weeks prior to the close of discovery prejudices them in their ability to timely complete discovery.
Having duly considered plaintiff’s motion, as well as the transcript of the hearing conducted by the magistrate judge, the Court finds no clear error in the ruling. Plaintiffs have failed to specifically identify the nature of any unfair prejudice. If timely completion of discovery becomes a problem, then remedies less severe than excluding testimony can be explored. Accordingly, plaintiffs’ objections are OVERRULED and the order denying the motion to exclude expert testimony is AFFIRMED.

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Jones v. Scientific Colors, Inc., Not Reported in F.Supp.2d (2001)
II
Defendant Scientific Colors objects to denial of its motion to compel plaintiff Fuller to answer deposition questions regarding his use of drugs and regarding past acts or threats of domestic violence. The magistrate judge denied the motion, finding the line of questioning irrelevant. Defendant argues that plaintiff Fuller’s hostile work environment claim, seeking damages for mental anguish, places his psychological well-being at issue. Because any history of drug use or domestic violence may also have affected his psychological well-being, defendant contends its questions are reasonably calculated to lead to the discovery of admissible evidence.
*2 Defendant has failed to persuade the Court that the magistrate judge’s ruling is clearly erroneous. There may be a hypothetical possibility that such inquiries will lead to discovery of relevant information. However, the slight probative value of such information would appear to be substantially outweighed by its potential for unfair prejudice, confusion of the issues, and waste of time on collateral matters. Defendant’s objections are OVERRULED and the denial of the motion to compel is AFFIRMED.

III
Finally, defendant objects to the order barring its inquiries into the EEOC claimants’ arrest records. The magistrate judge concluded such inquiries represented fishing expeditions designed to harass the claimants. Defendant contends the inquiries may lead to information bearing on claimants’ psychological well-being.
Again, the Court finds the proffered connection too attenuated. Whether any of the claimants have been previously arrested-as opposed to convicted-is a matter of slight probative value in relationship to the claims before the Court. Such inquiries threaten more to confuse than enlighten. The magistrate judge did not clearly err. His ruling is therefore AFFIRMED.
IT IS SO ORDERED.

Footnotes

*

United States District Judge, Western District of Michigan, sitting by designation.

2

 
 Jones v. Scientific Colors, Inc., Not Reported in F.Supp.2d (2001)

Opinion

2001 WL 883689 Only the Westlaw citation is currently available. United States District Court, N.D. Illinois, Eastern Division.
Norman JONES, et al. Plaintiffs, v.
SCIENTIFIC COLORS, INC., d/b/a Apollo Colors, Inc., Defendant. UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff,
v. SCIENTIFIC COLORS, INC., d/b/a Apollo Colors, Defendant.
No. 99 C 1959, 00 C 0171. | Aug. 6, 2001.

MEMORANDUM OPINION AND ORDER GRANTING LEAVE TO AMEND
MCKEAGUE,* J.
*1 Now before the Court, in these two consolidated actions, is the motion of the individual plaintiffs for leave to file a second amended complaint. The one-sentence motion is accompanied by a copy of the proposed second amended complaint; however, plaintiffs have filed no brief in support of the motion. Thus, although the May 11, 2000 case management order established a June 1, 2000 deadline for motions to amend the pleadings, plaintiffs offer no explanation for the requested leave to amend, filed more than one year late.
Ostensibly, the only change effected by the proposed second amended complaint is the deletion of one allegation from count I of the first amended complaint, asserting a claim under 42 U.S.C. § 1981 on behalf of plaintiff Norman Jones. Specifically, plaintiffs would delete their present allegation, contained in ¶ 19 of count I, that “in July, 1998, working conditions became so difficult because of defendant’s discriminatory acts that Jones was compelled to resign.” Also deleted from ¶ 20 and from the count I prayer for relief would be any claim for lost wages, loss of employment and loss of future earning potential.
Defendant Scientific Colors has no objection to the proposed deletions. However, inasmuch as the Court has discretion under Fed.R.Civ.P. 15(a) to grant leave to amend in accordance with the ends of justice, defendant asks the Court to grant leave to amend subject to two conditions. First, defendant asks the Court to rule that the proposed amendment would not adversely impact its own counterclaim against defendant Jones. Second, defendant would have the Court rule that the amendment operates as a voluntary dismissal of plaintiff Jones’ “constructive discharge” claim, with prejudice. Plaintiffs object to the proposed conditions.
The parties rightly recognize that plaintiffs’ proposed withdrawal of a single claim, or a part thereof, but not others, is properly treated as an amendment under Fed.R.Civ.P. 15(a), rather than a voluntary dismissal under Fed.R.Civ.P. 41(a)(2). See Bibbs v. Newman, 997 F.Supp. 1174, 1177 (S.D.Ind.1998). Under Rule 15(a), which provides that leave to amend “shall be freely given when justice so requires,” the Court nonetheless has discretion to impose conditions when leave to amend is allowed. Id .; Polycast Technology Corp. v. Uniroyal, Inc., 728 F.Supp. 926, 939 (S.D.N.Y.1989); In re Orthopedic Bone Screw Products Liability Litigation, 1998 WL 633680, at *2 (E.D.Pa.).
In the exercise of this discretion, the Court remains unpersuaded that defendant’s first proposed condition is appropriate. Whether this Court can or should retain jurisdiction over defendant’s counterclaim against plaintiff Norman Jones, notwith-standing the proposed amendment, is a question that is not presently before the Court and one that has not been briefed. Defendant has failed to persuade the Court that justice requires leave to amend be conditioned on some sort of assurance that jurisdiction over the counterclaim will be retained.
*2 The second proposed condition, however, makes more sense. Under Fed.R.Civ.P. 16(b), a showing of good cause is prerequisite to modification of the case management schedule. Here, plaintiffs have not offered any explanation, much less
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Jones v. Scientific Colors, Inc., Not Reported in F.Supp.2d (2001)
made a showing of good cause, for their late proposed amendment of the complaint. Despite defendant’s objections to the proposed leave to amend and opportunity to respond thereto, plaintiffs have offered no explanation whatsoever for the timing of their motion. Inasmuch as discovery has recently concluded, the Court is left to assume that discovery failed to uncover sufficient factual support for plaintiff Norman Jones’ constructive discharge theory of relief to warrant proceeding with it. If this is so, the Court is left to wonder why the weakness of the claim did not become apparent earlier.
Plaintiffs contend that defendant is not prejudiced by the proposed amendment and that leave should therefore be granted unconditionally. This argument ignores the fact that defendant has, for the last 16 months (i.e., since the first amended complaint was filed), incurred the expense of preparing to defend against the constructive discharge theory of relief.
Absent any mitigating explanation from plaintiffs, the interests of justice require that leave to withdraw this portion of plaintiff Jones’ § 1981 claim be granted subject to prejudice. See Bibbs, 997 F.Supp. at 1177. Indeed, plaintiffs have offered no explanation why the proposed withdrawal of the constructive discharge theory should be without prejudice.
Accordingly, plaintiffs’ motion for leave to file their proposed second amended complaint is GRANTED, subject to the condition that the resulting withdrawal of plaintiff Norman Jones’ constructive discharge theory of relief is deemed equivalent to a voluntary dismissal with prejudice.
IT IS SO ORDERED.

Footnotes

*

United States District Judge, Western District of Michigan, sitting by designation.

2