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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

WESTERN DIVISION

CYNTHIA JEANNE MITCHELL, )

)

Plaintiff, ) Case No.: 11-CV-50329

) Judge Frederick J. Kapala

) Magistrate P. Michael Mahoney

v. )

)

KENNETH W. NESEMEIER et al., )

)

Defendants. )

DEFENDANTS’ MOTION TO COMPEL MEDICAL AUTHORIZATIONS, 

SUPPLMENTAL RESPONSES TO INTERROGATORIES, 

AND ATTORNEYS’ FEES

Defendants Kenneth W. Nesemeier and Stephenson County, by their attorneys, Julie A. 

Bruch and Benjamin M. Jacobi, move this court to compel Plaintiff, Cynthia Mitchell, to provide 

executed copies of the attached medical releases, to supplement her responses to Nesemeier’s 

Interrogatories, and to reimburse Defendants for the attorneys’ fees incurred in drafting this 

motion within seven days and in support thereof state as follows.

1. Plaintiff, Cynthia Mitchell, filed a Third Amended Complaint on April 5, 2013. 

(Doc. 74.) She claims, inter alia, that Sergeant Nesemeier violated her Fourth Amendment rights 

when he arrested her on November 12, 2009.1 She alleges that physical injuries and non-garden 

variety emotional damages resulted from the incident. On December 19, 2012, this court entered 

a case management order and set the fact discovery deadline for June 19, 2013. (Doc. 52.)

 1 On April 16, 2013, Defendants filed a partial motion to dismiss, requesting the court to dismiss all counts except 

for Count I against Nesemeier and Count XI against Stephenson County for indemnification. (Docs. 76, 78.) That 

motion is fully briefed and under advisement.

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I. This Court Should Compel Plaintiff to Execute Authorizations of Medical Records 

Release for RMH and New Horizons.

2. On March 5, 2013, Defendants filed a contested motion for entry of a HIPAA 

qualified protective order. (Doc. 61.) The court granted that motion and entered a HIPAA 

qualified protective order on April 2, 2013 limiting the release of medical records from five years 

prior to the incident (November 12, 2004 to present). (Doc. 66, 71.) The court ruled that the 

emotional damages claimed were not the “garden variety” type and that defendants were entitled 

to discovery on Plaintiff’s mental health history.

3. On April 22, 2013, Defendants issued a subpoena to Rockford Memorial Hospital

(“RMH”). On May 7, 2013, Defendants issued a subpoena to New Horizons Counseling Center 

in Freeport, Illinois (“New Horizons”). Attached to the subpoenas was the HIPAA Qualified 

Protective Order. (Subpoenas, redacted.)

4. On April 25, 2013, RMH sent a letter to defense counsel objecting to the 

subpoena. (Letter from RMH.) Defense counsel’s office spoke with RMH on May 2, 2013, and 

RMH indicated that it needed Mitchell to sign an authorization form for release of medical 

records. On May 2, 2013, RMH faxed to defense counsel the preferred authorization form for 

release of medical records. 

5. On May 10, 2013, Defendants emailed to Plaintiff’s counsel the RMH 

authorization form and the letter from RMH objecting to the subpoena. (5/10/13 Email.) 

Defense counsel filled out the authorization to limit it temporally to the time period of November 

12, 2004 to present pursuant to the court’s order. The authorization is attached to this motion. 

(RMH Authorization.)

6. On May 19, 2013, defense counsel emailed Plaintiff’s counsel and requested that 

the authorization form be signed by May 24, 2013. (5/19/13 Email.)

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7. On May 29, 2013, defense counsel’s office emailed Plaintiff’s counsel and again 

requested that Plaintiff return an executed copy of the RMH authorization. (5/29/13 Email.)

8. On May 20, 2013, Defendants received a letter from counsel for New Horizons 

objecting to the subpoena for two reasons. First, New Horizons objected to the return date on the 

subpoena and cost of production, indicating that it had over 500 pages responsive to the 

subpoena. It agreed to waive that objection if Defendants allowed more time for production and 

paid copying fees. Second, New Horizons objected because it believed many documents to be 

subject to confidentiality provisions in the Illinois Mental Health and Developmental Disabilities 

Confidentiality Act, the Aids Confidentiality Act, and Illinois law relating to drug and alcohol 

records. New Horizons requested “an opinion and assurance letter from [defense counsel] or a 

qualified attorney that the laws cited as applicable will not be violated by the production as 

requested.” (New Horizons Letter.) 

9. New Horizons’s counsel indicated that he was unavailable to discuss the matter 

until June 7, 2013. In the meantime, to avoid further costs litigating the subpoena, Defendants 

sent an Authorization for Release of Medical Records to Plaintiff’s counsel on May 29, 2013 and 

requested that it be executed and returned by June 6, 2013. (5/29/13 Email.) The Authorization 

was intended to alleviate any concerns of New Horizon regarding production of confidential 

records under Illinois statute. It is attached to this motion. (New Horizons Authorization.) 

Defense counsel spoke with counsel for New Horizons on June 7, 2013, and counsel for New 

Horizons stated that the authorization would likely alleviate any concerns that New Horizon had 

about confidentiality.

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10. On May 30, 2013, Plaintiff’s counsel emailed defense counsel’s office and 

indicated that he had sent both the RMH and the New Horizons authorizations to Plaintiff for 

signature. (6/5/13 Email Chain, 5/30 email.)

11. On June 5, 2013, defense counsel emailed Plaintiff’s counsel and again requested 

that both authorizations be executed by June 6, 2013. (6/5/13 Email Chain.)

12. As of the filing of this motion, Defendants have not received executed copies of 

either the RMH Authorization or the New Horizons Authorization. This court has already ruled 

that the medical records sought to be released by the authorizations are discoverable under Rule 

26 in this case. The fact discovery deadline is approaching, and while the parties will likely seek 

an extension of the fact discovery deadline, Defendants cannot proceed with Plaintiff’s 

deposition until they have all of her relevant medical records. Defendants request that this court 

order Plaintiff to execute the attached RMH and New Horizons Authorizations within seven 

days. 

II. This Court Should Compel Plaintiff to Issue Supplemental and Amended Responses 

to Nesemeier’s Interrogatories.

13. Defendant Nesemeier propounded his first set of interrogatories on Plaintiff on 

March 3, 2013. (Interrogs.) Responses were due on April 2, 2013. On April 7, 2013, at defense 

counsel’s request for an update regarding the overdue responses, Plaintiff’s counsel indicated in 

an email that he would “begin on the questions in the next day or so.” (4/7/13 Email.) On April 

23, 2013, Plaintiff’s counsel emailed defense counsel stating that his client had become ill while 

working on the responses to interrogatories, but that they were “down to the last three.” (4/24/13 

Email.) Plaintiff responded to the interrogatories on May 8, 2013. Plaintiff objected to the last 

three interrogatories without responding. There was no verification attached. (Resp. to 

Interrogs.)

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14. On May 9, 2013, the parties held a conference pursuant to Local Rule 37.2 

regarding the interrogatory responses. The results of that conference are memorialized in the 

5/9/13 Email attached to this motion. (5/9/13 Email.) Plaintiff agreed to amend answers to 

Interrogatories 1, 2, 6, 8, 18, and 22. Plaintiff agreed to withdraw objections and answer 

Interrogatories 9 and 19. Plaintiff agreed to provide the amended and supplemental responses by 

May 16, 2013. (5/9/13 Email.) On May 17, 2013, Plaintiff’s counsel emailed defense counsel 

and stated only, “I am going to need another 14 days.” (5/17/13 Email.) On June 5, 2013, 

defense counsel emailed Plaintiff’s counsel and requested that he provide the supplemental and 

amended responses by June 6, 2013. (6/5/13 Email.) Defendants have not received the 

supplemental responses. Defendants request that this court order Plaintiff to amend and 

supplemental her responses to Nesemeier’s Interrogatories as set forth in the May 9, 2013 Email, 

and to provide a verification of the answers, within seven days.

15. Plaintiff objected to, without answering, the last three interrogatories “as over 

burdensome in that it exceeds the defendant’s 25 question limit.” (Resp. to Interrogs.) 

Plaintiff’s counsel stated during the 37.2 conference that his objection was based on the fact that 

Interrogatory 2 contained subparts, each of which counted as an individual interrogatory. (5/9/13 

Email.)

16. Rule 33 provides that, unless otherwise stipulated or ordered by the court, a party 

may serve on any other party no more than 25 written interrogatories, including all discrete 

subparts. Fed. R. Civ. P. 33(a)(1). “Under the commonly cited rule announced in Kendall v. 

GES Exposition Servs., Inc., which also happens to be the rule recommended in Moore’s Federal 

Practice, ‘interrogatory subparts are to be counted as one interrogatory . . . if they are logically 

or factually subsumed within and necessarily related to the primary question.’” Bell v.

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Woodward Governor Co., No. 03-C50190, 2005 WL 3829134, 2005 U.S. Dist. LEXIS 12969, at 

*6 (N.D. Ill. June 30, 2005) (Mahoney, J.) (quoting 174 F.R.D. 684, 685 (D. Nev. 1997)). 

17. Nesemeier’s Interrogatory 2 states the following:

Please state the full name, address, and telephone number of each person who (a) 

witnessed or claims to have witnessed any of the events, conduct, injuries, or 

damages alleged in the Complaint, and state the nature and substance of their 

knowledge; (b) was present or claims to have been present during any of the 

events, conduct, injuries, or damages alleged in the Complaint and state the nature 

and substance of their knowledge; (c) has, claims to have, or is believed by you to 

have any knowledge of the events, conduct, injuries, or damages alleged in the 

Complaint, or any other facts relating to this litigation, and state the nature and 

substance of their knowledge; or (d) you intend to and/or may call as witnesses. 

(Interrog. 2.)

18. Interrogatory 2 and the subparts contained therein are logically and factually 

subsumed and related to each other. The interrogatory requests information related to persons 

whom Plaintiff is aware of having knowledge regarding the allegations in the complaint. The 

persons for whom information is sought are people who were witnesses, were present for the 

allegations (and are therefore potential witnesses), have knowledge of the allegations (and are 

therefore potential witnesses), or that Plaintiff may call as a witness. Responses to the four 

subparts will all identify potential witnesses, and will advise the role that the witnesses will play 

in the lawsuit. See Imbody v. C & R Plating Corp., No. 08-C218, 2010 WL 567317, 2010 U.S. 

Dist. LEXIS 12682, at *10 (N.D. Ind. Feb. 12, 2010) (holding that a subpart asking for the 

“name, address, telephone number, and employer” of every person in the lawsuit and a subpart 

asking for the “substance of each person’s knowledge” are related and one interrogatory). These 

subparts are subsumed within each other. They are logically and factually related to each other. 

They are not discrete, and Interrogatory 2 should be counted as only one interrogatory. This 

court should strike Plaintiff’s objections to Interrogatories 23, 24, and 25 and order Plaintiff to 

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respond to those Interrogatories. In the event that this court finds that the interrogatory subparts 

count separately towards the total, Nesemeier requests leave to propound the additional 

interrogatories.

III. This Court Should Order Plaintiff and/or Plaintiff’s Counsel to Reimburse 

Defendants for Reasonable Attorneys Fees Incurred in Drafting this Motion.

19. Rule 37(a)(5)(A) provides the following:

If the motion is granted—or if the disclosure or requested discovery is provided 

after the motion was filed—the court must, after giving an opportunity to be 

heard, require the party or deponent whose conduct necessitated the motion, the 

party or attorney advising that conduct, or both to pay the movant's reasonable 

expenses incurred in making the motion, including attorney's fees. But the court 

must not order this payment if:

(i) the movant filed the motion before attempting in good faith to obtain the 

disclosure or discovery without court action;

(ii) the opposing party's nondisclosure, response, or objection was 

substantially justified; or

(iii) other circumstances make an award of expenses unjust.

20. Responses to Nesemeier’s interrogatories were due on April 2. Five days after 

their due date, without any explanation as to his delay, plaintiff’s counsel indicated that he would 

“begin” working on the answers. On April 23, plaintiff’s counsel indicated that this client had 

become ill while working on the responses, but that they were “down to the last three.” Over 

two weeks later, on May 8, responses were propounded, but the last three interrogatories were 

objected to without responding. A Rule 37.2 conference was held the next day, and plaintiff’s 

counsel agreed to supplement responses within seven days. After eight days, he stated, with no 

explanation, that he needed another 14 days. Even with that extension, responses were due on 

May 31. Plaintiff has had 28 days since the 37.2 conference, and has not amended and 

supplemented her responses as agreed, and has not given any explanation for the delay. Plaintiff 

did not request any additional time on May 31. 

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21. Plaintiff has been similarly dilatory in executing the Authorizations. Defendants 

sent Plaintiff the RMH Authorization on May 10, or 28 days ago. Plaintiff has offered no 

explanation for her delay in executing that document.

22. The fact discovery deadline is approaching, and although Defendants anticipate 

seeking an extension of the fact discovery deadline, they cannot prepare for Plaintiff’s deposition 

until they have her responses to interrogatories. This motion to compel was necessary to 

preserve Defendants’ rights to additional discovery in the event that this court denies a motion 

for extension of time to extend the fact discovery deadline. Defendants have attempted to limit

travel and court costs by noticing this motion for a hearing at which other motions in this case 

are noticed, but the time spent drafting this motion was needlessly expended.

23. Defendants request that this court grant their motion to compel and order Plaintiff 

and/or Plaintiff’s counsel to reimburse Defendants for the expense incurred in drafting this 

motion to compel.

IV. Conclusion

Defendants request that this court order Plaintiff and/or Plaintiff’s counsel to do the 

following:

• Execute and return the RMH Authorization within seven days;

• Execute and return the New Horizons Authorization within seven days;

• Amend and Supplement Plaintiff’s responses to Nesemeier’s Interrogatories as set forth 

in the 5/9/13 Email within seven days;

• Answer Interrogatories 23, 24, and 25 within seven days; 

• Provide a signed verification testifying to the truth of the responses to the interrogatories 

under oath within seven days; and

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• Reimburse Defendants for unnecessary attorneys’ fees incurred in drafting this motion.

WHEREFORE, Defendants Stephenson County and Sergeant Kenneth Nesemeier request 

that this court grant their motion to compel execution of the medical records authorizations, 

supplemental responses to Nesemeier’s Interrogatories, and reimbursement of attorneys’ fees and 

for any further relief this court deems necessary.

STEPHENSON COUNTY and 

KENNETH W. NESEMEIER

By: s/Benjamin M. Jacobi

One of their attorneys

Julie A. Bruch, #6215813

Benjamin M. Jacobi, #6296811

O’Halloran Kosoff Geitner & Cook, LLC

650 Dundee Road, Suite 475

Northbrook, Illinois 60062

Telephone: (847) 291-0200

Fax: (847) 291-9230

E-mail: bjacobi@okgc.com

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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

WESTERN DIVISION

CYNTHIA JEANNE MITCHELL, )

)

Plaintiff, ) Case No.: 11-CV-50329

) Judge Frederick J. Kapala

) Magistrate P. Michael Mahoney

v. )

)

STEPHENSON COUNTY et al., )

)

Defendants. )

CERTIFICATE OF SERVICE

I hereby certify that on June 7, 2013 I electronically filed Defendants’ Motion to Compel

Medical Authorizations, Supplemental Responses to Interrogatories, and Attorneys’ Fees with 

the Clerk of Court using the CM/ECF system, which will send notification of such filing to the 

following registered CM/ECF participant(s):

Lawrence C. Redmond

lredmond3@juno.com

STEPHENSON COUNTY and 

KENNETH W. NESEMEIER

By: s/Benjamin M. Jacobi

Benjamin M. Jacobi, #6296811

O’Halloran Kosoff Geitner & Cook, LLC

650 Dundee Road, Suite 475

Northbrook, Illinois 60062

Telephone: (847) 291-0200

Fax: (847) 291-9230

E-mail: bjacobi@okgc.com

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