IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

LAST ATLANTIS CAPITAL LLC, et al., )

)

Plaintiffs, ) No. 04 C 0397

)

v. ) Judge Bucklo

)

AGS SPECIALISTS, LLC, et al., ) Magistrate Judge Cole

)

Defendants. )

MEMORANDUM OPINION AND ORDER

On September 29 , after hearing extended oral argument on the defendants’ Motion to th

Compel the Deposition of Robert DeMeritt [Dkt. 1320], I granted the motion. [Dkt. 1327]. In

essence, I agreed with the defendants’ assessment that Mr. DeMeritt was potentially a very

significant witness might well be essential to the defense case given what was his apparent role in

the gathering and creating of information that was significant to the plaintiffs’ damage case. I

explained to Mr. Friedman, counsel for the plaintiffs, that having practiced law for an extended

period of time and now having been a judge for almost a decade, I firmly believed that it was not a

court’s role to second guess a lawyer’s assessment of the importance of any witness to the case.

While a judge might disagree with the lawyers’ assessment, the inescapable reality is that he is not

in a position to make an informed judgment. Nor should he.

Ours is an adversarial system, Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579,

596 (1993); Alioto v. Town Of Lisbon, 651 F.3d 715, 721 (7 Cir. 2011); Minemyer v. B-Roc th

Representatives, Inc., 2009 WL 3464141, 3-4 (N.D.Ill. 2009)(collecting cases), and thus it is not for

a judge to assume a proactive role and second guess a lawyer’s decision about the strategy to be
employed or the relative importance of a particular witness.

Hence, when the defendants’ lawyers made the case for whyMr. DeMeritt was, in their view,

a vitally important witness, I refused to gainsay that judgment. But I also noted that the plaintiffs’

lawyers were not without blame for any lateness in defendants having sought to depose Mr.

DeMeritt. Although Mr. Friedman adamantly denied having intentionally misled the plaintiffs’

lawyers, – indeed, or having misled them at all even unintentionally – the evidence was more than

sufficient to show that he successfully gulled his opponents into thinking that Mr. DeMeritt wasn’t

all that important. Additionally, In fact, for a very long time he obdurately refused to even identify

Mr. DeMeritt byname despite specific defense requests. Compare Crosby v. Buchanan, 90 U.S. 420,

454 (1874) (“It has been rightly said that in a court of conscience, honesty of purpose prompts

frankness of statement; concealment is indicative of fraud”). 

And finally, it seemed to me that Mr. Friedman’s extraordinary (and arguably improper)

efforts to keep Mr. DeMeritt’s identity from the plaintiffs was, itself, rather significant evidence of

his potential importance to the case, thereby validating the defendants’ lawyers’ assessment of the

need to take his deposition. Compare United States v. Ladish Malting Co., 135 F.3d 484, 490 (7th

Cir.1998)(“The prosecutor must have thought that the instruction mattered; why else so vigorously

oppose Ladish's request for an actual-knowledge instruction”). 

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These principles are ignored by the motion to reconsider, which instead takes the reader on

a tour of selected passages from 12 of my previous opinions (and a number of Seventh Circuit

opinions) apparently designed to show that my decision in this case is contrary to principles about

And while one might say that it is nothing but a kind of circumstantial proof, that species of 1

evidence is often more compelling than direct evidence. Desert Palace, Inc. v. Costa, 539 U.S.90,100

(2003); Michalic v. Cleveland Tankers, Inc., 364 U.S. 325, 330 (1960).

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the properscope of a reply brief, late filed motions for relief in discovery, etc., etc. relied on in those

cases. 

There are two rather obvious flaws in this approach. First, “general propositions do not

decide concrete cases.” Lochner v. New York, 198 U.S. 45, 76 (1905)(Holmes, J., dissenting). See

also Daubert v. Merrell Dow, 509 U.S. 579, 598 (1993)(Rehnquist, C.J., concurring in part and

dissenting in part)(“‘general observations’” suffer from the common flaw that they are not applied

to the specific matter and “therefore they tend to be not only general, but vague and abstract.”);

Wisehart v. Davis, 408 F.3d 321, 326 (7 Cir. 2005)(Posner, J.)(“General language does not decide th

particular cases, as Holmes liked to say.”). Second, and perhaps more importantly, the decision to

have Mr. DeMeritt available to be deposed at some point over the next several months was nothing

more than a routine discovery decision like that made by hundreds of judges throughout the United

States on a daily basis. It, like other discovery disputes, falls within the extraordinarily broad range

of discretion invested in judges by the Federal Rules of Civil Procedure. Cf. Crawford-El v. Britton,

523 U.S. 574, 598 (1998); Semien v. Life Insurance Co. of N.A., 436 F.3d 805, 813 (7 Cir. 2006). 

th

But discretion denotes the absence of a hard and fast rule. Langnes v. Green, 282 U.S. 531,

541 (1931); Rogers v. Loether, 467 F.2d 1110, 1111-12 (7 Cir. 1972)(Stevens, J.). Under this th

standard, a court must act “with regard to what is right and equitable under the circumstances and

the law, and directed by the reason and conscience of the judge to a just result.” Langnes, 282 U.S.

at 541. An abuse of discretion occurs when no reasonable person could agree with the district court's

decision. Adamas v. City of Indianapolis, 742 F.3d 720, 727 (7 Cir. 2014); Cincinnati Life Ins. Co. th

v. Beyrer, 722 F.3d 939, 953 (7 Cir. 2013); Slaton v. Raleigh, 1998 WL 684210, 2 (N.D.Ill. th

1998)(Bucklo, J.).

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Consequently, while a decision in a particular case may be helpful, it is seldom dispositive

in another case involving a court’s exercise of discretion since on a virtually identical set of facts,

two decision makers can arrive at opposite conclusions, both of which can constitute appropriate

exercises of discretion, and both be affirmed on appeal. Mejia v. Cook County, Ill., 650 F.3d 631,

635 (7 Cir. 2011); United States. v. Banks, 546 F.3d 507, 508 (7 Cir. 2008). Cf. United States v. th th

Bullion, 466 F.3d 574, 577 (7th Cir.2006)(Posner, J.) (“The striking of a balance of uncertainties can

rarely be deemed unreasonable....”). 

These principles have application to issues involving untimely filed motions for discovery

which the plaintiff insists is, inter alia, involved in this case. But even here there is no absolute

uniformity of decision that deprives a judge of the ability to make accommodations and requires

substitution of a rule for a discretionary decision. For example, in In Re Sulfuric Acid Antitrust

Litigation, 231 F.R.D. 320 (N.D.Ill. 2005), which is cited in Mr. Friedman’s brief at pp. 2, 10 and

11, I said: 

The Federal Rules of Civil Procedure place no prescribed time limit on the outside

date for filing a motion to compel discovery. In one regard, however, a line of sorts

has been sketched by a series of decisions: motions to compel filed after the close of

discovery are almost always deemed untimely. 

 But the footnote pointed out:

But even here the line meanders, and motions made after the close of discovery are

not inevitably out-of-bounds. See e.g., Blanchard v. EdgeMark Financial Corp., 192

F.R.D. 233, 235 (N.D.Ill.2000) (30 days not too late); Gault v. Nabisco Biscuit Co.,

184 F.R.D. 620, 622 (D.Nev.1999); Shamis v. Ambassador Factors Corp., 34

F.Supp.2d 879 (S.D.N.Y.1999)(No unreasonable delaywhere motion to compel was

filed four days after the close of discovery).

The Opinion went on to say:

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Greater uncertainty occurs where the motion is made very close to the discovery cutoff date. Some districts by local rule have imposed time limits within which motions

to compel must be brought. ... Most, however, have no such rules, and the matter is

left to the broad discretion possessed by the district courts to control discovery.

How is that discretion to be exercised? Is a motion to compel filed four days before

the close of discovery too late? At least one court has said it is. Ridge Chrysler Jeep,

LLC v. Daimler Chrysler Services North America, LLC, 2004 WL 3021842

(N.D.Ill.2004). What if the motion had been made six or perhaps twelve days before

the close of discovery? Would the result have been different? Is a week the proper

cut-off point, or perhaps two weeks? To pose the question is to demonstrate that there

is no principled or mathematical way of determining in advance in every case when

a motion to compel should be deemed untimely based upon an arbitrarily prescribed

number. As Justice Cardozo said in another context, “[w]here the line is to be drawn

between the important and the trivial cannot be settled by a formula.” Jacob &

Youngs, Inc. v. Kent, 230 N.Y. 239, 243, 129 N.E. 889 (1921). Compare, Louisville

Gas & Electric v. Coleman, 277 U.S. 32, 41 (1928)(Holmes, J., dissenting). The

answer then must necessarily be found in the entire complex of circumstances that

gave rise to the motion, and what is untimely in one case may not be in another.

In re Sulfuric Acid Antitrust Litigation, 231 F.R.D. at 332-333.

These identical principles were expressed in Miller v. Lenz, 210 WL 252287 (N.D.Ill. 2010),

which is also cited three times in the plaintiffs’ Memorandum in Support of its Motion to

Reconsider. [Dkt. 1331 at 3, 12, 13]. In short, there is nothing either in the opinions that I have

authored cited by Mr. Friedman or in the other decisions cite din the brief that warrant

reconsideration of my discretionary decision that Mr. DeMeritt should be deposed.

More recently, in Cleversafe v. Amplidata, 11 C 04890, over objection I ordered a Mr.

Gladwin to be deposed, noting “it would not be an appropriate exercise of discretion to bar any

deposition of Mr. Gladwin given his centrality to the case because the defendant has not yet taken

the deposition.” [Dkt. 291]. There, like here, I concluded after making a complete assessment of all

of the relevant circumstances that the deposition should proceed. In that case, like this one, the

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appropriate exercise of discretion was not to be made based on an in flexible application of one or

more rules divorced from the circumstances of the case. There, as here, I concluded that a

Procrustean application of the Federal Rules of Civil Procedure would be improper and would

subvert the search for truth, which is the desideratum of the Federal Rules of Civil Procedure. See

Musser v. Gentiva Health Services, 356 F.3d 751, 759-760 (7 Cir. 2004)(“‘ In the normal course th

of events, justice is dispensed by the hearing of cases on their merits.’”); Sun v. Board of Trustees

of University of IL, 473 F.3d 799, 811-812 (7 Cir.2007); EEOC v. Concentra Health Services, Inc.,

th

496 F.3d 773, 779 (7 Cir. 2007); Hefferman v. Bass, 467 F.3d 596 (7th Cir.2006); Rice v. City of th

Chicago, 333 F.3d 789, 785 (7 Cir. 2003); Long v. Steepro, 213 F.3d 983, 986 (7th Cir.2000). th

Indeed, Rule 102 of the Federal Rules of Civil Procedure requires that the Rules be

“construed to secure fairness in administration, elimination fo unjustifiable expense and delay, and

promotion of growth and development of the law of evidence to the end that the truth may be

ascertained and proceedings justly determined.” was to be applied. The answer then to any particular

discovery problem like that involved here can only be found after a careful review of the entire

complex of circumstances that gave rise to the motion. And what is untimely in one case may not

be timely in another. And, whether there should be strict adherence to a deadline or schedule cannot

be determined by any formula in advance, but must take into account all of the relevant

circumstances underlying the motion.

CONCLUSION

The Motion for Reconsideration misapprehends the discretionary nature of the decision to

which it objects as well as the very nature of discretion itself. The Motion does not demonstrate that

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the September 29, 2014 order contains a manifest errors of law or fact. Nor does it present newly

discovered evidence. At bottom, Mr. Friedman simply doesn’t like the fact that a potentially

significant witness who also happens also to be a significant officer of the plaintiff company has

been ordered to give a deposition. That is not the basis for a motion for reconsideration. Disposition

of a motion for reconsideration is left to the discretion of the district court, and its ruling will not be

reversed absent an abuse of that discretion. Billups v. Methodist Hosp., 922 F.2d 1300, 1305 (7th

Cir.1991). The motion for reconsideration [Dkt. 1328] is baseless and it is denied.

ENTERED: 

 UNITED STATES MAGISTRATE JUDGE

DATE: 10/17/14

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