oe

to compel answers to the interrogatories, and this Court has not entered an order pertaining to the
interrogatories.

In light of the absence of a motion to compel in relation to the alleged incomplete answers
to interrogatories and the absence of any order pertaining to such answers, sanctions are not
appropriate under Rule 37. See Fed. R. Civ. P. 37.

Mattenson also seeks sanctions against Baxter for the failure of the law firm of Bell, Boyd
& Lloyd (“Bell”) to provide documents that were subpoenaed on January 29, 2003, returnable
February 14, 2003. Baxter contends that it is not responsible for compliance of the subpoena issued
to Bell.

The correspondences between Mattenson and Bell’s counsel discloses that objections to the
subponea and the review of the documents to consider redaction of confidential information was
the cause of the delay in the return of the subpoenaed documents. Accordingly, sanctions are denied.

Mattenson also seeks sanctions related to its second Motion to Compel which was granted
by this Court on February 27, 2003. This Court’s February 27, 2003 order granted Mattenson’s
second Motion to Compel as to documents that Baxter alleged were not discoverable because they
were protected by the attorney-client privilege. The Court found that the attorney-client privilege
did not apply and ordered the production of the documents. Baxter did not produce the documents
until April 14, 2003.

While the parties agreed to hold discovery in abeyance for two weeks in March 12, 2003, the
delay in providing the compelled documents prior to the discovery abeyance and/or after the
discovery abeyance was not reasonably justified. Accordingly, Mattenson is awarded the reasonable

attorney’s fees and costs incurred by Mattenson in bringing the second Motion To Compel.



Baxter contends that discovery sanctions are not appropriate because it fully complied with
this Court’s December 12, 2002 Order and because the time delays were justified in light of the
number of documents and the December holidays.

By engaging in this conduct, and based on the above cited standards, Baxter is found to have
failed to adequately comply with this Court’s December 12, 2002 Order. Baxter has failed to
produce certain documents, and the time delays in tuming over the documents that it did provide are
notreasonably justified. Accordingly, Mattenson is awarded the reasonable attorney’s fees and costs
incurred by Mattenson in bringing the first Motion To Compel. Mattenson shall submit a petition,
setting forth such fees, within 14 days. Baxter shall submit any objection thereto fourteen days
thereafter.

Mattenson next contends that Baxter has failed to comply with the parties’ February 13, 2003
agreed protective order. In essence, Mattenson contends that Baxter’s delay in filing the subject
protective order for almost five months delayed the discovery process.

The parties agree that a protective order was discussed in August and September 2002 but
that a final version was not submitted to the Court until February 27, 2003. However, during this
time discovery was taking place, and Baxter did submit materials to Mattenson. Furthermore, the
parties were discussing/amending the proposed protective order during this time. Accordingly,
sanctions for the delayed filing of the protective order are not justified.

Mattenson also contends that Baxter has failed to adequately respond to all of Mattenson’s
interrogatories originally served in October 2002. In November 2002, Baxter answered the
interrogatories. However, several answers included objections and were incomplete. Subsequently,

the parties have engaged in numerous discussions concerning the answers. Mattenson has not moved



Mattenson shall submit a petition, setting forth such fees, within 14 days. Baxter shall submit any
objection thereto fourteen days thereafter.

Lastly, Mattenson seeks sanctions for alleged discovery violations regarding Baxter’s
privilege log. Specifically, Mattenson alleges that Baxter failed to produce many documents that
were requested on February 27, 2003. Instead, Baxter only provided some of the documents and a
revised privilege log. Mattenson contends that the privilege log is inadequate.

While the record indicates that the parties have had numerous discussions pertaining to
discovery, there is no evidence that the parties have attempted to resolve the recent issue pertaining
to the remaining, allegedly privileged documents. Accordingly, the parties are ordered to confer
about this issue pursuant to Rule 37(a)(2)(A); and sanctions for the alleged inadequate privilege log
is not appropriate.

In addition to seeking attorney’s fees as sanctions for Baxter’s alleged discovery violations,
Mattenson also seeks broad sanctions, including striking the pleadings and barring Baxter’s defenses,
barring Baxter from introducing any evidence at trial concerning Mattenson’s employment status,
and barring Baxter from introducing evidence at trial concerning a meeting that took place in the fall
of 2000. These requested sanctions are not proportionate with the offending conduct and are denied.

For the foregoing reasons, Mattenson’s Motion for Sanctions and Attorney’s Fees is granted

in part and denied in part.

Dated: Qapse27 200

W. DARRAH
United States District Judge



Nflaute Order Fe, (06/97)

United States District Court, Northern District of Illinois

Name of Assigned Jud; Sitting Judge if Oth
‘or Magistrate Judge John W. Darrah than Assigned Jodge
CASE NUMBER 02 C 3283 DATE 8/27/2003
CASE CHARLES R. MATTENSON vs. BAXTER HEALTHCARE CORPORATION
TITLE
[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.]
DOCKET ENTRY:
() Qa Filed motion of [ use listing in “Motion” box above.]
(2) a Brief in support of motion due
@) a Answer brief to motion due. . Reply to answer brief due. .
(4) Qo Ruling/Hearing on set for at
(5) Oo Status hearing[held/continued to] [set for/re-set for] on set for at
(6) Qo Pretrial conference[held/continued to] [set for/re-set for] on set for at -
(7) oa Trial[set for/re-set for] on at
(8) Oo [Bench/Jury trial] [Hearing] held/continued to at
(9) im} This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OFRCP4(m) ClLocal Rule 41.1 OCFRCP41{aX(1) O FRCP41(a)(2).
ao) [Other docket entry] Status hearing held. Pretrial conference set for 8/27/03 is stricken and reset
to 8/28/03 at 12:00 p.m. Enter Memorandum Opinion And Order. Mattenson’s motion for sanctions and
attorney’s fees is granted in part and denied in part.
(il off [For further detail see order attached to the original minute order.]
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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS DOLK “TED
EASTERN DIVISION ~

AUG 28 2003
CHARLES R. MATTENSON, )
)

Plaintiff, ) No. 02 C 3283
)
v ) Judge John W. Darrah

)
BAXTER HEALTHCARE CORPORATION, )
)
Defendant. )

MEMORANDUM OPINION AND ORDER

Plaintiff, Charles Mattenson (“Mattenson”), seeks sanctions and attorney’s fees against
Defendant, Baxter Healthcare Corporation (“Baxter”), for multiple discovery violations, including
failing to comply with some of the this Court’s orders.

Federal Rule of Civil Procedure 37(a)(4) requires a court to award reasonable expenses,
including attorney’s fees, to the prevailing party of a discovery motion, unless the conduct of the
losing party is substantially justified or other circumstances make an award unjust. Fed. R. Civ. P.
4(a)(4); Rickels v. City of South Bend, Indiana, 33 F.3d 785, 786-87 (7th Cir. 1994). Similarly,
Federal Rule of Civil Procedure 37(b) provides that a court may impose sanctions on a party or its
attorney who fails to comply with a court order. See Fed. R. Civ. P. 37(b); Tamari v. Bache & Co.,
729 F.2d 469, 472 (7th Cir. 1984). Any sanction should be proportionate to the offending conduct.

United States v. Golden Elevator, Inc., 27 F.3d 301, 303 (7th Cir. 1994).

Sanctions are proper if noncompliance is wilful, done in bad faith, or by fault of the
noncomplying litigant. See Melendez v. Illinois Bell Tel. Co., 79 F.3d 661, 670-71 (7th Cir. 1996)
(Melendez). A party acts in bad faith when it knew that disclosure of materials was required by the

court’s orders and the party failed to disclose. Melendez, 79 F.3d at 670-71. A party is at fault when

(yl



it should have known that disclosure was required by the court’s orders and the party failed to
disclose. Melendez, 79 F.3d at 670-71. “Fault does [not] speak to the noncomplying party’s
disposition at all, but rather only describes the reasonableness of the conduct — or lack thereof —
which eventually culminated in the violation.” See Long v. Steepro, 213 F.3d 983, 987 (7th Cir.
2000).

Mattenson first seeks sanctions for Baxter’s alleged failure to comply with this Court’s
December 12, 2002 Order, granting Mattenson’s first Motion to Compel. In that Motion to Compel,
Mattenson sought documents related to Baxter’s Renal Department employees and any settlement
agreements from claims of age discrimination for Baxter worldwide. Subsequently, Mattenson
agreed to limit the scope of discovery to Renal Department employees in Northern Ilinois.

In mid-February 2003, Baxter contacted Mattenson and informed him that the requested
documents, which numbered over 15,000, were available for inspection. However, Baxter was still
numbering the documents because of the large number of documents. Soon thereafter, Mattenson
reviewed the documents and found that some documents were faded or blank and that some recent
performance evaluations appeared to be missing. The next day, Baxter informed Mattenson that the
missing performance evaluations were stored electronically and would be provided shortly. Almost
a month later, the missing performance evaluations were provided. However, Mattenson contends
that the performance evaluations provided are still incomplete. Furthermore, Mattenson contends
that many of the “avalanche” of documents Baxter provided were disorganized and contained

irrelevant materials.