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THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

DANYA DAVIS, SHANNON WEBB and ) 

BERNESSA WILSON, ) 

) Case No. 11-cv-07923 

Plaintiffs, ) 

) Honorable Judge Andrea R. Wood 

vs. ) 

) 

PACKER ENGINEERING, INC. and ) 

PACKER GROUP, INC., ) 

) 

Defendants. ) 

PLAINTIFFS’ MOTION FOR SANCTIONS AGAINST ATTORNEY BORCIA

AND PACKER ENGINEERING, INC. 

Plaintiffs, by and through their undersigned counsel of record, hereby move for sanctions 

against Defense Counsel, James Borcia (“Borcia”) and Defendant, Packer Engineering, Inc. 

(“Packer Engineering”), and state as follows: 

1. One of the core issues in this case is whether or not Edward Caulfield 

(“Caulfield”), the former president of Packer Engineering, engaged in sexual harassment of 

female employees of Packer Engineering. 

2. In fact, Dr. Kenneth Packer (“Dr. Packer”) executed a sworn affidavit prior to 

March 28, 2012 attesting that Caulfield caused “...infliction of emotional distress to the 

employees...” and engaged in “bullying, disrespectful treatment, belittling, harassment of * * * 

female employees, improper and disrespectful language and name calling.” See Dr. Packer 

Affidavit at ¶¶ 4, 29, attached hereto as Exhibit A. 

3. In short, the affidavit sets forth that Caulfield breached his agreement with Packer 

Engineering by, among other things, inflicting of emotional distress to Packer Engineering 

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employees, and further bullying and harassing female employees. The affidavit further states 

that “Caulfield engaged in egregious violations of trust” and committed “perjury and 

plagiarism.” See Exhibit A at ¶ 61. 

4. Yet, in this litigation, Packer Engineering has taken the opposite position as the 

Dr. Packer affidavit and adamantly denies that Caulfield contributed to a hostile work 

environment. See, e.g. Def’s Answer to Complaint (ECF Dkt. #20).

5. The Dr. Packer affidavit was prepared by or on behalf of Borcia and was filed 

with the Circuit Court of Cook County on March 28, 2012 in the case of Caulfield vs. Packer 

Engineering, Inc., case number 2011 CH 12479 in support of a motion for partial summary 

judgment asserting that Caulfield breached his employment agreement with Packer Engineering. 

6. Shortly thereafter, on or about June 18, 2012, Borcia, on behalf of Packer 

Engineering, in the litigation pending in this court, responded to Plaintiff Davis’s request for 

production of documents which specifically sought any document "supporting ... allegations of 

sexual harassment or gender discrimination against Edward M. Caulfield." Simply stated, this 

request sought documents supporting allegations, made by anybody, of sexual harassment or 

gender discrimination against Caulfield. See Plaintiff Davis First Request for Production at 

Request No. 11, attached hereto as Exhibit B. The Dr. Packer affidavit is undoubtedly 

responsive to this request. Packer Engineering’s response, signed by Borcia, represented that the 

company would produce responsive documents. 

7. Moreover, Plaintiff Davis, in her request for production of documents, 

specifically requested documents “that in any way relate to . . . Plaintiff’s complaints/allegations 

of discrimination, harassment and retaliation, including by not limited to sexual harassment.” 

See Exhibit B at Request No. 6. This request sought documents relating to allegations, made 

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specifically by Plaintiff Davis, of discrimination, harassment and retaliation. The Dr. Packer 

affidavit is undoubtedly responsive to this request. Again, Packer Engineering’s response, 

signed by Borcia, represented that the company would produce responsive documents. 

8. Subsequently, Borcia produced several boxes of documents but failed to produce 

the affidavit of Dr. Packer. 

9. In preparation for trial on Monday, January 9, 2017, Plaintiffs’ counsel discovered 

the unpublished case of Caulfield v. Packer Engineering, Inc., 2015 IL App (1st) 140463-U, ¶ 80 

which quotes extensively from the affidavit of Dr. Packer. 

10. Plaintiffs’ counsel immediately thereafter requested Borcia to produce the 

affidavit of Dr. Packer. See Counsel Emails attached hereto as Exhibit C. 

11. Borcia has refused to produce the affidavit of Dr. Packer on the basis that 

“discovery is closed.” See Exhibit C. 

12. Plaintiffs’ counsel has obtained a copy of the affidavit of Dr. Packer from 

Caulfield’s counsel in the Cook County Case.

13. Plaintiffs now seek sanctions pursuant to Federal Rule of Civil Procedure 37(b) 

and 37(c). Rule 37(b) provides that a court may order sanctions against a party who fails to obey 

an order to provide or permit discovery, including an order under Rule 26(f), Rule 35, or Rule 

37(a). The sanctions may include prohibiting the disobedient party from introducing specific 

evidence, striking pleadings, dismissing the action, or rendering a default 

judgment. See Fed.R.Civ.P. 37(b)(2). The court may also impose other appropriate sanctions, 

including those listed in Rule 37(b)(2)(A)(i)-(iv). See Fed.R.Civ.P. 37(c)(1)(C). 

14. It is within this Court discretion to determine whether to sanction a party and the 

appropriate sanction. Melendez v. Illinois Bell Tel. Co., 79 F.3d 661, 671 (7th Cir.1996). Any 

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sanction imposed must be “proportionate to the circumstance surrounding the party's failure to 

comply with discovery rules.” Melendez, 79 F.3d at 672. When the sanction imposed is 

dismissal, the Court must find bad faith, willfulness, or fault. E360 Insight, Inc. v. Spamhaus 

Project, 658 F.3d 637, 642 (7th Cir.2011). 

15. A court also has the inherent power to assess sanctions for the failure to preserve 

or produce documents. Zang v. Alliance Fin. Serv. of Ill., Ltd., 875 F.Supp.2d 865, 884, 885 n. 19 

(N.D.Ill.2012) (also noting that the analysis under Rule 37 and the court's inherent power is 

essentially the same). Sanctions are appropriate where (1) the party had a duty to preserve the 

evidence; (2) the duty was breached; and (3) the other party was harmed by the 

breach. Zang, 875 F.Supp.2d at 885; see also ChampionsWorld, LLC v. U.S. Soccer 

Federation, 276 F.R.D. 577, 582 (N.D.Ill.2011) (noting as a fourth factor that the breaching 

party's willfulness, fault, or bad faith caused the breach). 

16. Plaintiffs have been severely prejudiced by Borcia’s refusal to produce the 

affidavit of Dr. Packer. Had Borcia made timely disclosure of the affidavit of Dr. Packer this 

litigation would have changed in the following material respects: 

a. Plaintiffs would have conducted additional discovery into the factual 

assertions in the affidavit, including the deposition of Dr. Packer; 

b. Plaintiffs would have requested the investigation report, referenced in Dr. 

Packer’s affidavit, that Packer Engineering conducted as a result of 

Caulfield’s conduct;

c. Plaintiffs would have submitted the affidavit to the court in support of 

Plaintiffs’ motion for summary judgment;

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d. The insurance company for Packer Engineering would, in all likelihood, have 

been inclined to engage in settlement negotiations which Borcia has 

adamantly refused to do. 

CONCLUSION 

WHEREFORE, for all the aforementioned reasons, Plaintiffs respectfully request that this 

Honorable Court grant Plaintiffs’ Motion for Sanctions. Further, Plaintiffs respectfully request 

that this Honorable Court order Attorney Borcia to immediately produce a copy of this Motion 

for Sanctions, the transcript from the hearing proceedings, and the Court’s corresponding Order 

to the relevant insurance adjuster, and immediately provide the Court and Plaintiffs’ counsel with 

a certificate of service upon the adjuster. 

Dated: January 12, 2017 Respectfully submitted, 

FOOTE, MIELKE, CHAVEZ & O’NEIL, LLC

By: /s/Craig S. Mielke 

Craig S. Mielke, Esq. 

Peter L. Currie, Esq. 

Kevin P. Noll, Esq. 

FOOTE, MIELKE, CHAVEZ & O’NEIL, LLC 

10 West State Street, Suite #200 

Geneva, IL 60134 

Phone: (630) 232 7450 

Attorneys for Plaintiffs 

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CERTIFICATE OF SERVICE 

I hereby certify that on January 12, 2017, I electronically filed the foregoing 

PLAINTIFFS’ MOTION FOR SANCTIONS AGAINST ATTORNEY BORCIA AND 

PACKER ENGEERING, INC. with the clerk for the U.S. District Court, Northern District of 

Illinois, using the electronic case filing system of the court. The electronic case filing system sent 

a “Notice of Electronic Filing” to the following attorneys of record who have consented to accept

this Notice as service by electronic means:

James K. Borcia 

TRESSLER LLP 

233 South Wacker Drive 

22nd Floor 

Chicago, IL 60606 

jborcia@tresslerllp.com

/s/Craig S. Mielke 

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