“apparently” ordered that the documents and answers to supplemental
interrogatories be produced by December 6, 2002. According to Mr.
Smolens, he misdiaried the compliance date as December 10, 2002.
Mr. Smolens denies Plaintiff's counsel’s assertion that he told
Plaintiff’s counsel that he would not produce the documents or
answers to supplemental interrogatories, but states that he merely
informed Plaintiff’s counsel that he would provide a “written
response” to the Court’s Order. That “written response” was the
December 10, 2002 Motion for Protective Order.

The Court finds that Mr. Smolens’ failure to comply with its
Order of November 25, 2002 was inexcusable. As of this date,
Mr. Smolens has not complied with the Order of this Court
by turning over the documents involved. Attorneys are not free to
disregard court orders with which they disagree. Moreover,
counsel’s arguments in support of his decision to withhold the
settlement agreement and other documents are frivolous. That issue
was determined in the Court’s November 25, 2002 ruling. It was
necessary for Plaintiff to file the Motion for Rule to Show Cause
when Defendants’ counsel did not comply with the Court’s Order in
its entirety. Therefore, Plaintiff is awarded the fees and costs
of filing the motion and reply to Defendants’ response, as well as
the court appearance occasioned thereby. The fees and costs must

be paid by Defendants’ counsel and must not be billed to the

client.



December 10, 2002, Mr. Smolens filed a Motion for Rule 26(c)
Protective Order, seeking to withhold some of the documents that
were encompassed, by definition, in the November 25, 2002 Order.
On December 16, 2002, after in-camera review of the documents that
Mr. Smolens sought to withhold, and after oral argument, the Court
held that the documents clearly were relevant and that no reason
existed for their withholding. Because the documents at issue had
not been produced prior to Mr. McGannon’s deposition, and because
Mr. McGannon had not answered clearly relevant questions regarding
incidents that were described in the documents, the Court ordered
that Mr. McGannon be redeposed at the expense of Defendants. The
Court reserved ruling on Plaintiff's request that the costs
incurred by Plaintiff in bringing the December 10, 2002 Motion be
borne by Defendants.
ANALYSIS

As this Court held in its Order dated December 16, 2002, the
documents submitted for in-camera inspection are clearly relevant
to issues presented in this case. There was never any basis for
withholding them. Indeed, while the parties to the Settlement
Agreement provided that the agreement would remain “confidential,”
they provided further that it would not be disclosed except by
court order. That Court Order issued on November 25, 2002.

In his response to the instant Motion, Mr. Smolens, who was

present at the hearing, sarcastically asserted that the Court



Finally, so that the Court can be assured that Defendants are
not billed for the fees and costs of this Motion and the frivolous
objections filed by Mr. Smolens to this Court's Order, he is hereby
directed to provide copies of this Order and the February 27, 2003

Opinion and Order of Judge Gettleman to Defendants.

Dated: March 7, 2003 ENTER:

CQhianse, Kore

ARLANDER KEYS“)
United States Magistrate Judge



Minute Onder Form (06/97)

United States District Court, Northern District of Illinois

Name of Assigned Judge j 2 Sitting Judge if Other ,
Or Magistrate Tadge Robert W. Gettleman than Assigned Judge Arlander Keys
CASE NUMBER 01 C 5421 DATE 3/7/2003
CASE Daniel Jockell vs. Village of Lake Zurich et al.
TITLE
{ln the following box (a) indicute the party filing the motion, ¢.g., plaintiff, defendant, 3rd party plainti(Y, and (b) state bricfly the nature
MOTION: of the motion being presented.]
DOCKET ENTRY:
qd) Oo Filed motion of [ use listing in “Motion” box above.]
Q) ia Brief in support of motion due
GB) Oo Answer brief to motion due. . Reply to answer brief due.
(4) o Ruling/Hearing on set for at
(5) oO Status hearing[held/continued to) [set for/re-set for] on set for at
(6) oO Pretrial conference[held/continued to] [set for/re-set for] on set for at
(7) Oo Trial[set for/re-set for] on at
(8) Oo [Bench/Jury trial] [Hearing] held/continued to at
(9) o This case is dismissed [with/without] prejudice and without costs[by/agrecment/pursuant to]
OOFRCP4(m) ClLocal Rule 41.1 CIPRCPA1(a)(1) CI FRCP41(a)(2).

ao) [Other docket entry} Plaintiff's request that Defendants be assessed the fees and costs of bringing

Plaintiff's Motion for Rule to Show Cause and for Sanctions [#32] is granted. Memorandum Opinion

and Order entered. ~#—
(il) ff [For further detail see order attached to the original minute order.]

No notices required, advised in open court.

No notices required.

1} Totioes mailed by judge's sta

2003

Notified counsel by telephone. faite docketes!

Docketing to mail notices.

Mail AO 450 form.

dunoa

4-7 Copy to judge/magistrate judge.

ridley

courtroom
deputy’s
initiats

82:1 Wd L~ yyHeU
Aika WI

central Clerk's Office

railing deputy iltials



UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

DANIEL JOCKELL, Case No. 01 C 5421

Plaintiff,
Judge Robert W. Gettleman

Arlander Keys

VILLAGE OF LAKE ZURICH, a
Municipal corporation, and

)
)
)
)
)
)
) Magistrate Judge
)
)
)
)
)
MATTHEW McGANNON, )
)
)

Defendants.

MEMORANDUM OPINION AND ORDER

Before the Court is Plaintiff’s request that Defendants be
assessed the fees and costs of bringing his Motion for Rule to Show
Cause and for Sanctions [#32]. For the reasons set forth below,
the Motion is granted.

Background

What started out on October 31, 2002 as a routine motion to
compel compliance with outstanding discovery, followed by this
Court’s ruling on that motion, has escalated to the point of
borderline contempt by and the issuance of sanctions against Mark
Smolens, Defendants’ counsel, on February 27, 2003, by the district

judge.

Throughout these proceedings, Mr. Smolens has shown a complete



lack of consideration and respect for opposing counsel in the
production of documents and scheduling of depositions of
Defendants’ witnesses, which has resulted in significant delays in
the completion of discovery.

The undisputed chronology of events set forth in Plaintiff's
August 31, 2002 Motion to Compel Compliance with Outstanding
Written Discovery and to Compel Depositions, as well as his
demeanor before this Court, clearly demonstrates that Mr. Smolens
is intent on showing that he is in charge in these proceedings.
His conduct during the depositions further reinforces the Court’s
opinion in that regard. According to Plaintiff's chronology,
between June and October, 2002, Plaintiff’s counsel attempted to
schedule depositions of Defendants’ witnesses on numerous
occasions, When Mr. Smolens would not respond, the depositions
would be noticed, only to have them cancelled, for various reasons,
by Mr. Smolens. This has, thus far, resulted in three extensions
of the discovery deadline.

While Mr. Smolens’conduct prior to the August 16, 2002
deposition of Defendant Matthew McGannon was totally unacceptable,
his conduct during that deposition and thereafter has been
deplorable. On November 25, 2002, after oral argument, this Court
ordered that Defendants produce, by December 6, 2002, the clearly
relevant documents that were the subject of the Motion to Compel,

and that all depositions be completed by December 13, 2002. On