74/04:

7/16/04:

7122/04:

8/2/04;

Plaintiff served an additional set of supplemental responses. (Defs.’ Submission at 5;
Defs.’ Exs. 17 & 17A.) In Plaintiff's cover letter, he indicated the documents identified
in the latest responses are “documents [P]laintiff intends to rely upon for possible use at
trial. We will not rely upon at trial any documents to establish the contentions addressed
in those interrogatories which have not been identified in the foregoing responses.”
(Defs.’ Submission at 5; Defs.’ Ex. 17 at 1.) Moreover, Plaintiff stated that “However,
as I also stated in my letter of July 7, [P]laintiff's review of the documents produced in
discovery is ongoing. To the extent that he is able to further reduce the volume of
documents responsive to the Court’s June 9, 2004 Order, he will do so.” (Id.)

Defendants point out, however, that Plaintiff substantially by about twenty percent
increased the number of documents he claims are “for possible use at trial” in his July
12, 2004 submission. (Defs.’ Submission at 5-6; Compare Defs.’ Ex. 10A with Defs.’
Ex. 17A.) Defendants argue that many of the newly identified documents are irrelevant
to the issues in the case and would not be used by Plaintiff as trial exhibits. (Defs.’
Submission at 6.) See e.g., Interrogatory Nos. 1, 2, 4, 5 and 7 (Plaintiff identified a blank
piece of letterhead and a print-out from encyclopedia.com containing a definition of the
term “tort”). (Defs.’ Submission at 6; Defs.’ Ex. 18.) Defendant further asserts that
Plaintiff failed to eliminate any of the other irrelevant documents. (Jd.)

Plaintiff sent another letter dated July14, 2004 to Defendant in which he asserted that
because “[P]laintiff has eliminated well over 80% of the documents produced in

:discovery . . .[and] given its assurance that it will not rely upon at trial any documents

to establish the contentions . .. which have not been identified in its discovery responses
. .. [P]laintiff has complied in good faith with the Court’s June 9 Order.” (Defs.’
Submission at 6; Defs.’ Ex. 19.)

Defendants, however, maintain that based on Plaintiff's July12, 2004 and Julyi4, 2004
letters, Plaintiff has failed to understand Judge Kocoras’s court order. Defendants argue,
essentially, that instead of Plaintiff being overly inclusive and identifying every
document that might possibly be used at trial, Judge Kocoras ordered Plaintiff not to be
overly inclusive and to only identify those documents that he realistically believes will
be used at trial. (Def.’s Submission at 6.)

Defendants sent a letter dated July 16, 2004 to Plaintiff stating he had not complied with
Judge Kocoras’s court order for the reasons stated at the two hearings and in the various

_ correspondence. (Defs.’ Submission at 6; Defs.” Ex. 20.)

Defendants filed a submission and supporting appendix.
The Plaintiff filed a letter with this court which states inter alia as follows:

“Following plaintiff s receipt of the defendants’ submission regarding this matter


6/30/04:

7104:

718104:

In response to Defendants’ June 24, 2004 letter, Plaintiff wrote to Defendants indicating
that he had complied with Judge Kocoras’s order even though he stated that since the
interrogatories “requested identification of all documents that relate to the various
contentions-not the much narrower request for identification of documents that
[Plaintiff] intends to rely upon at trial-{Plaintiff] is simply complying with the request
to the best of his ability and understanding.” (Defs.’ Submission at 3; Defs.’ Ex. 6.)

After the exchange of additional correspondence between Defendants and Plaintiff
(Defs.’ Exs. 7-9), where Defendants reiterated that Judge Kocoras’s order called for
Plaintiff to identify those documents he intends to rely on at trial, Plaintiff served a
second set of supplemental responses on Defendant. (Defs.’ Submission at 3; Defs.’ Exs.
10 & 10A.) The second set of responses contained a lengthy list of documents which
included irrelevant documents and documents which would not be used at trial. (Defs.’
Submission at 3; Defs.’ Ex. 10A.) See e.g., Interrogatory No. 8 (in response to Plaintiff's
contention that Hardball imputes to Plaintiff the commission of a serious criminal
offense, Plaintiff identified a letter from Defendants’ lawyer requested that Plaintiff
refrain from disrupting the filming of the movie and an intemal letter concerning the
negotiations to purchase the book that inspired the movie and to hire a screenwriter.
(efs.’ Submission at 3-4; Defs.” Ex. 11.)

B. July 1, 2004 Status Hearing

At a status hearing before Judge Kocoras, Defendants’ informed him of Plaintiff's
conduct as it related to Judge Kocoras’s court order. (Defs.’ Submission at 4; Defs.’ Ex.
12 at 3-4.) At that time, Judge Kocoras indicated that Plaintiff had not made a good faith
effort to eliminate those documents that Plaintiff did not intend to rely on at trial. (Defs.’
Submission at 4; Defs.’ Ex. 12 at 6.) Judge Kocoras stated: “I have the clear belief that
no one on your end of the case took a serious look and made a good-faith effort to
eliminate stuff that really was not going to be offered at trial, and you could honestly and
realistically say so today — or ‘today’ being the date of the inspection.” (Id.) Asa tesult,
Judge Kocoras referred the matter to determine if “there has been good faith compliance
with [his] last command on the part of [P)laintiff in this case to make a realistic
assessment of the documents intended to be used at a trial, ifa trial were to be had in this
case.” (Defs.’ Submission at 4-5; Defs.’ Ex. 12 at 9.)

C. Activity after the July 1, 2004 referral

Inresponse to Plaintiff's July 7, 2004 letter, Defendants stated in aJuly 8, 2004 letter that
it was clear that Plaintiff had failed to comply with Judge Kocoras’s order because all
Plaintiff had done was identify the documents that he believed supported the contentions
and he had failed to make a realistic assessment of which of those documents he would
use at trial. (Defs.’ Submission at 5; Defs.’ Ex. 16.)



on Friday, July 23, 2004, plaintiff undertook the re-review of every single piece
of paper that he identified in his second supplemental responses to the first set of
interrogatories served by SFX Tollin/Robbins Inc. (“SFX”) in order to eliminate
any errors and obviate the need for unnecessary litigation.”

The letter, after reciting specifics (e.g., 939 pages previously identified were either

duplicative (751 pages) or erroneously identified (188 pages) and will not be used to
“prove the contentions identified in SFX’s interrogatories”), concludes:

“After eliminating (1) the documents that plaintiffno longer intends to rely upon
to prove the contentions identified in response to SFX’s interrogatories; and (2)
the documents that were erroneously identified in Tesponse to SFX’s
interrogatories, the total number of pages identified in response to the Court’s
order of June 9, 2004 is 14, 599. The total number of pages produced in
discovery is roughly 90,000.” (P1.’s Ex. 1.)

8/4/04: Oral argument held on issue referred. Plaintiff raises contention that he thought in good
faith, based inter alia on the District Judge’s minute order of June 9, 2004, that the court
on June 9" had required Plaintiff. only to provide responses to contention interrogatories

and did not require Plaintiff to identify the documents he intends to rely on at trial. The
Defendants vigorously dispute Plaintiff's contention.

FINDING
After review, and making a realistic assessment, the court finds, respectfully, that neither by
July 1, 2004 nor, importantly, even to the present date has Plaintiff complied in good faith with the
District Judge’s order to identify the documents Plaintiff “intends” to use at trial, The District
Judge’s July 1, 2004 minute order and transcripts of the two hearings before that court make it clear
that the Plaintiff was mandated by the District Judge to identify documents that he intends to use and
“intends to offer” at trial. Instead, the Plaintiff in its last supplemental response of July 12, 2004,

identified, unresponsively, only documents that he intends to rely on for “possible use at trial.”

"Transcript of District Judge Kocoras’s July 1, 2004 hearing, page 5.

*Consistently, Plaintiff at oral argument on the referred issue stated that the documents
Plaintiff has identified to date are ones Plaintiff “may use” at trial.

5


t
Minute Order Form (0697)
* ‘>

United States District Court, Northern District of Illinois

Name of Assigned Jud; Sitting J i
oe Magistrate Judge Charles P. Kocoras than Anigned Judge Tan H. Levin
CASE NUMBER 01 C 6721 DATE 8/4/2004
CASE Muzikowski vs. Paramount Pictures Corporation
TITLE

[In the foltowingbox (a) indicate the party filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintifE, and (b) state briefly the nature
of the motion being presented.]

(11) @

MOTION:

DOCKET ENTRY:

qd) im Filed motion of [ use listing in “Motion” box above.|

(2) 0 Brief in support of motion due

@) Qo Answer brief to motion due__. Reply to answer briefdue__

(4) o Ruling/Hearingon set for at

(5) oO Status hearing[held/continued to] [set for/re-set for]}on___setfor___—at

(6) oO Pretrial conference[held/continued to] [set for/re-set for] on setfor sats

(7) im Trial[set for/re-set for]on at

(8) o [Bench/Jury trial] [Hearing] held/continuedto_____at

(9) oO This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to}
OFRCP4(m) (CLocal Rule 41.1 OFRCP41(aX(1) O FRCP41(a}(2).

(0) EH [Otherdocketentry] Enter memorandum opinion and finding. The court determines that there

has not bee good faith compliance by the plaintiff with the District Judge’s order to make a realistic
assessment of the documents to be used at trial. All matters relating to the referral of this action
having been resolved, the case is returned to the assigned judge.

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

No notices required.

Mail AO 450 form.

No notices required, advised in open court.

wo | Notices mailed by judge’s staff.
Notified counsel by telephone.

Docketing to mail notices,

ao | Copy to judge/magistrate judge.

SM

ott +
jae £3 bans

“Document
Number

3H

umber of notices

AUG 99 2004

date dockered

Sh

docketing deputy initiale

Ww
HY

Lunog touusia ‘sn

cumam B2:S Hd S- ONV HOO nets
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Date/time received in
central Clerk's Office

mailing deputy inidals



“«

Furthermore, while the Plaintiff did whittle the list down from 90,000 pages of documents, this court
does not deem a listing of 14,599 pages of documents to be a good faith assessment of the documents

that, realistically, will be employed at trial by the Plaintiff.

IAN H. LEVIN
United States Magistrate Judge

Dated: August 5, 2004


any

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

EASTERN DIVISION DOCKETEY”
) AUG - 9 2004
ROBERT E. MUZIKOWSKI, )
)
Plaintiff, )
) Case No. 01 C 6721
v. )
) District Judge Charles P. Kocoras
PARAMOUNT PICTURES CORPORATION, )
SFX TOLLIN/ROBBINS, INC. and ) Magistrate Judge Ian H. Levin
FIREWORKS PICTURES, )
)
Defendants. )
)

MEMORANDUM OPINION AND FINDING
INTRODUCTION

On July 1, 2004, this matter was referred by the District Judge to a Magistrate Judge! “for
resolution of the current issue on whether or not there has been good faith compliance with the
court’s last order on the part of the plaintiff to make a realistic assessment of the documents intended
to be used at trial, if a trial were to be had in this case.” (Referral order and minute order of Hon.
Charles P. Kocoras.)

ISSUE

Defendants maintains that as of July 1, 2004 (the date of the referral), and to this date,
Plaintiff has failed to comply with Judge Kocoras’s order requiring Plaintiff to identify the
documents upon which he intends to rely upon at trial. Plaintiff claims he has made good faith

compliance with Judge Kocoras’s June 9, 2004 order.

‘Two Magistrate Judges recused themselves in the case. O\


Background
The case herein is premised on Plaintiff's allegation that Defendants based the main character
in the movie Hardball on him. Plaintiff therefore alleges inter alia claims for defamation, false light
invasion of privacy, false endorsement, false advertising, commercial disparagement, intentional
infliction of emotional distress and unjust enrichment. (Defs.” Submission at 1-2.)
Chronology
A, Pre-July 1, 2004

4/9/04: Defendants served contention interrogatories (including request for documents) on
Plaintiff to determine the factual basis for his contentions. (Defs.’ Submission at 2;
Defs.’ Ex. 2A.)

5/10/04; In Plaintiff's response, he failed to identify any documents. (Wefs.’ Submission at 2;
Defs.’ Ex. 2B at 4.)

5/04: Defendants unsuccessfully tried to resolve this issue with Plaintiff. (Defs.’ Submission
at 2; Defs.’ Exs. 2C-2F.)

6/7/04: Defendants filed a motion to compel. (Defs.” Submission at 2; Defs.’ Ex. 2.)

6/9/04: | Judge Kocoras heard the motion to compel and ordered Plaintiff to identify the
documents upon which he intended to rely on at trial (by about June 23, 2004). (Defs.’
Submission at 2; Defs.’ Ex. 3 at 6-7, 8, 9.)

6/24/04; Plaintiff served supplemental responses on Defendants but did not identify those
documents he would use at trial. (Defs.’ Submission at 2-3; Defs.’ Ex. 4.) Instead, he
identified virtually every document produced in the pending litigation by using broad
descriptions of categories of documents. (Id.) Seee.g., Interrogatory No. 2 (in responding
to Plaintiff's contention that Defendants had made misrepresentations in connection with
the advertising of Hardball, Plaintiff set forth a page of broad descriptions of categories
of documents and noted that the documents included “all documents containing
descriptions of the movie Hardball.” (Defs.’ Ex. 4at 10.)

Defendants sent Plaintiff a letter stating that the supplemental responses did not comply
with Judge Kocoras order because he was “required . . . to identify with particularity the
documents which you contend support your contentions.” (Defs.’ Submission at3; Defs’
Ex. 5.)