UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

KRISTINA DRAKE, JOSEPH BORUCKI,

JOSHUA LEISNER, and AUSTIN LYSY 

Individually, and on Behalf of All Others

Similarly Situated,

 Plaintiffs, Case No. 20 C 1574

 

 v. Magistrate Judge Sunil R. Harjani

CHOP HOSPITALITY LLC d/b/a 

CHICAGO CHOP HOUSE, MATTHEW 

McCAHILL, PHILIP MARTIN, PETER 

HODO, ADAM WILL, and JAMES

LAWRENCE,

 Defendants.

MEMORANDUM OPINION AND ORDER

Plaintiffs bring this putative class and collective action on behalf of themselves and current 

and former servers and bartenders of Chicago Chop House restaurant based on allegations that 

Defendants operated a mandatory tip pool that did not comply with the tip credit provisions of the 

Fair Labor Standards Act, 29 U.S.C. § 201, et seq., the Illinois Minimum Wage Law, 820 ILCS § 

105/1, et seq., and/or the Chicago Minimum Wage and Paid Sick Leave Ordinance, Chicago 

Municipal Code, § 1-24-010, et seq. The parties have consented the jurisdiction of the United 

States Magistrate Judge for all proceedings pursuant to 28 U.S.C. § 636(c). Plaintiffs now move 

to compel discovery and for sanctions pursuant to Federal Rule of Civil Procedure 37. For the 

reasons stated below, the motion [95] is granted in part and denied in part.
2

BACKGROUND

On April 8, 2021, the Court ordered the parties to provide their Mandatory Initial Discovery 

Pilot (“MIDP”) Program disclosures by April 23, 2021.

1 Doc. 80. On April 23, 2021, both sides 

filed a Notice of Service of MIDP Disclosures, but Defendants disclosures were incomplete in that 

they did not provide a single new responsive document nor did they provide a list of individuals 

who had discoverable information. Docs. 88, 89. Plaintiffs’ counsel emailed defense counsel about 

the missing documents on May 3, 2021, May 6, 2021, and May 11, 2021. On May 11, 2021, 

defense counsel responded that he had requested documents from his clients. He also referred 

Plaintiffs to documents produced in a prior 2018 lawsuit between some of the same Plaintiffs and 

some of the same Defendants and to some payroll documents produced nearly a year earlier in 

connection with Plaintiffs’ settlement demand. In addition, defense counsel attached a single 

document.

During a preliminary settlement discussion with counsel and the undersigned magistrate 

judge on May 12, 2021, the inadequacy of Defendants’ MIDP production was raised. Doc. 91. 

The Court ordered the parties to meet and confer about the MIDP production issue and provide an 

update in the status report due on May 20, 2021. Id.

Pursuant to the Court’s order, counsel met and conferred on May 17, 2021 and 

corresponded via email after the meet and confer session. During the May 17 meet and confer 

session, the parties agreed that the following documents are responsive to the MIDP requests: (a) 

documents related to the operation of the tip pool; (b) personnel files of Doris Siemen (General 

Manager of Chicago Chop House restaurant) and any other individuals who received tip pool 

money; (c) documents showing who had control over scheduling and/or pay of any of the class 

1 As of June 1, 2020, the MIDP program concluded for new cases.
3

members; (d) documents related to the hiring, firing, or disciplining of any of the class members; 

(e) agreements with any credit card agencies or credit processing companies by Chop Hospitality; 

(f) any emails and text messages relevant to the above, which included searching the work and 

personal emails of all the individual Defendants as well as the work emails of Ms. Siemen and any 

other manager with business email addresses at the Chop House; (g) notifying Plaintiffs’ counsel 

if any of those emails or text messages have been destroyed or deleted; (h) all emails sent out via 

Schedulefly to any class members; and (i) email correspondence with Sourcepointe that in any 

way reflects or discusses any class members individually or discusses any policies or practices 

regarding job responsibilities and/or pay of front of house employees. As part of their MIDP 

disclosures, Defendants also agreed to provide the names and contact information for the following 

categories of individuals: (a) any other managers and assistant managers (other than the named 

Defendants and Doris Siemen) who worked at the restaurant during the relevant time period; (b) 

any other employees who had knowledge of Ms. Siemen’s responsibilities; (c) any other 

individuals involved in the hiring and/or firing of any class members; (d) any employees involved 

in payroll, bookkeeping, and/or accounting; (e) individuals employed by whatever credit card 

companies or credit card processing companies Chop Hospitality had agreements with; and (f) 

individuals at SourcePointe who were involved in negotiations and/or signing agreements with 

Chop Hospitality.

The parties filed their required status report on May 20, 2021. Doc. 92. With respect to 

Defendants’ required document production under the MIDP, the status report stated: “Defendants 

previously produced payroll records and have indicated that Plaintiffs are to use documents 

produced in compliance with the MIDP [in a prior lawsuit] that briefly involved some of the same 

parties.” Doc. 92 at 3. Plaintiffs responded that Defendants’ initial production was inadequate, 
4

and they identified several categories of documents and information that needed to be produced

by Defendants. Id. The parties confirmed that they had met and conferred on May 17, 2021 and 

reported reaching an agreement on the required scope of Defendants’ MIDP production, as detailed 

above. Id. Defendants agreed to produce the outstanding documents and information by June 4, 

2021. Id.

After reviewing the parties’ status report, and by Order dated May 21, 2021, the Court 

entered the following discovery schedule: (1) Rule 26(a)(1) disclosures and any remaining MIDP 

disclosures due by June 4, 2021; (2) written discovery shall issue by June 18, 2021; (3) notices of 

depositions with agreed upon dates shall issue by August 6, 2021; and (4) all fact discovery shall 

be completed by October 29, 2021. Doc. 93. When no additional documents were produced by 

Defendants on June 4, 2021, counsel for the parties again met and conferred by telephone on June 

7, 2021. Defense counsel reported that the corporate Defendant Chop Hospitality is short-staffed

and his office intended to send a paralegal to the Chicago Chop House restaurant to assist with the 

document production. Defense counsel did not give a date when Defendants’ document 

production would be complete.

Three days later, on June 10, 2021, Plaintiffs filed the current motion to compel and for 

sanctions. In their motion, Plaintiffs seek an order: (1) directing Defendants to produce all required 

documents and names and contact information within two weeks; (2) imposing sanctions, 

including all attorney’s fees related to Defendants’ non-compliance with the Court’s orders; and 

(3) prohibiting Defendants from requesting additional extensions in this case less than two weeks 

prior to any deadline and requiring a showing of good cause for why any extension should be 

granted. In their response brief, Defendants request that they be given until July 19, 2021 to 

provide their required disclosures.
5

DISCUSSION

In the first part of their motion, Plaintiffs move to compel the overdue MIDP disclosures 

that concern documents and names and contact information. The MIDP requires each party, 

among other things, to: (1) produce documents in their possession, custody, or control that they 

believe may be relevant to any party’s claims or defenses and (2) state the names and, if known, 

the addresses and telephone numbers of all persons who they believe are likely to have 

discoverable information relevant to any party’s claims or defenses, and provide a fair description 

of the nature of the information each such person is believed to possess. Am. MIDP Standing

Order, ¶¶ B.1 & B.3.

Defendants failed to comply with this Court’s April 8, 2021 Order requiring MIDP 

disclosures to be produced by April 23, 2021 and its May 21, 2021 Order requiring MIDP 

disclosures to be produced by June 4, 2021. Other than documents produced as part of the prior 

2018 case, some pay records produced nearly a year ago for settlement purposes, and two copies 

of an unsigned agreement, Defendants did not provide documents that are responsive to the MIDP 

requests. In their response brief, Defendants “readily concede that, to date, they have been unable 

to produce documents responsive to the requirements under the Mandatory Initial Discovery Pilot 

Project.” Doc. 98 at 2. Further, Defendants have failed to provide their list of specific persons 

with discoverable information. Defendants state that their disclosures made on June 4 identified 

persons with knowledge regarding the tipping pool and credit card transaction expenses. But other 

than the named Defendants and Doris Siemen, Defendants’ disclosures do not identify a single 

specific individual who is likely to have discoverable information. See Doc. 98-2 at 2-4. Because 

Defendants’ MIDP disclosures as to documents and witnesses likely to have discoverable 

information remain substantially incomplete, the motion to compel is granted. Defendants shall 

provide their MIDP disclosures by July 19, 2021.
6

In the second part of their motion, Plaintiffs assert that Defendants’ failure to produce their 

MIDP disclosures justifies an award of attorney’s fees as a sanction. Plaintiffs invoke Federal 

Rule of Civil Procedure 37(b)(2), which governs sanctions for failure to obey a discovery order. 

“Rule 37(b)(2)(C) dictates that when a party disobeys a discovery court order, ‘the court must 

order the disobedient party . . . to pay reasonable expenses, including attorney’s fees, caused by 

the failure, unless the failure was substantially justified or other circumstances make an award of 

expenses unjust.’” Little v. JB Pritzker for Governor, 2021 WL 1165097, at *6 (N.D. Ill. March 

26, 2021) (quoting Fed. R. Civ. P. 37(b)(2)(C)); see also Fed .R. Civ. P. 37(a)(5)(A)(ii) & (iii) 

(when a motion to compel is granted, under Rule 37(a), the court “must” require “the party . . . 

whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay 

the movant’s reasonable expenses incurred in making the motion, including attorney’s fees” unless 

the failure to disclose “was substantially justified” or “other circumstances make an award of 

expenses unjust.”).

Plaintiffs’ request for attorney’s fees also implicates Rule 37(c)(1). Paragraph A(9) of the 

MIDP Amended Standing Order provides: “Rule 37(c)(1) shall apply to mandatory discovery 

responses required by this Order.” Am. MIDP Standing Order, ¶ A.9. With respect to Plaintiffs’ 

request for attorney’s fees, Rule 37(c)(1) provides that unless the failure to provide information 

was “substantially justified or is harmless,” the Court “may order payment of the reasonable 

expenses, including attorney’s fees, caused by the failure.” Fed. R. Civ. 37(c)(1)(A).

A finding or willfulness or bad faith is not required to support sanctions which are less 

severe than dismissal or default. E360 Insight, Inc. v. Spamhaus Project, 658 F.3d 637, 642 (7th 

Cir. 2011) (under Rule 37, “a showing of willfulness, bad faith, or fault is necessary only when 

dismissal or default is imposed as a discovery sanction.”). “Even negligence may be a sufficient 
7

degree of fault to impose fee-shifting sanctions.” Little, 2021 1165097, at * 6; e360 Insight, Inc., 

658 F.3d at 643 (negligence is “a degree of fault sufficient for imposing sanctions.”). Finally, a

court has wide discretion in determining an appropriate sanction, but sanctions under Rule 37 must 

be proportional to the wrongdoing. Patrick v. City of Chicago, 974 F.3d 824, 831 (7th Cir. 2020);

Nelson v. Schultz, 878 F.3d 236, 238-39 (7th Cir. 2017).

An award of reasonable attorney’s fees is appropriate and proportional to the discovery 

failures here. The Court finds that Defendants’ failure to make complete disclosures required 

under the MIDP and the Court’s April 8 and May 21 Orders is clear, and while not willful or in 

bad faith, was not substantially justified. 

Defendants state that they did not produce responsive documents because: (1) the primary 

Defendant and possessor of the majority of the documents is Chop Hospitality, LLC, which 

operates the Chicago Chop House restaurant; (2) Chicago Chop House is a full-service restaurant, 

not an office-based business with numerous staff members hired and retained to manage 

documents and paperwork; (3) during the COVID-19 pandemic, the Chop House restaurant was 

operating on an extremely limited basis and with a threadbare staff; and (4) challenges caused by 

the pandemic, including closures and staff turnover, greatly disrupted the Chop House restaurant’s 

ability to operate as a business much less locate and produce the documents at issue. Defendants 

also point out the substantial burden in producing voluminous responsive documents in the very 

immediate aftermath of the pandemic.

While Defendants’ assertion regarding the scope of their document production may be true 

and the Court recognizes the significant challenges the pandemic placed on restaurants, these 

reasons are not an adequate excuse for Defendants’ almost complete failure to provide any new 

responsive documents pertaining to this particular case and their failure to identify specific 
8

witnesses and provide their contact information (other than identifying the named Defendants and 

Doris Siemen). For example, Defendants have not explained why their challenges in producing 

documents prevented them from at least providing the names and contact information for witnesses 

likely to have discoverable information. Moreover, counsel for both sides agreed to the June 4 

deadline set forth in the status report filed on May 20 and incorporated into the Court’s May 21 

Order. Defendants do not dispute that they had a duty to produce their MIDP disclosures by June 

4, 2021 and failed to provide responsive documents and information. Defense counsel “fully 

acknowledge that they agreed to the June 4, 2021 deadline to supplement their prior disclosures” 

but blame Plaintiffs’ counsel for failing to agree to an additional extension to June 25 to produce 

the MIDP disclosures. Doc. 98 at 7. Plaintiffs were not obligated to agree to an additional 3-week 

extension and Defendants have not explained why they did not ask the Court to extend the MIDP 

disclosure deadline before a motion to compel was filed. If Defendants needed additional time 

due to personnel issues and problems related to the COVID-19 pandemic, it was incumbent on 

Defendants to promptly seek an extension of time from the Court. Defendants did not do so. 

The Court expects the parties to abide by their agreements regarding discovery deadlines, 

especially those incorporated into a Court order. A party cannot simply ignore an order of the 

Court and parties also cannot agree to extend Court-ordered deadlines. Rule 37 is a fee-shifting 

rule that seeks to deter exactly these types of discovery failures. Therefore, under these 

circumstances, Defendants’ actions were not substantially justified.

Defendants’ failure was also not harmless. Plaintiffs were forced to file the instant motion 

to compel due to Defendants’ failure to comply with the Court’s April 8 and May 21 Orders, and 

they should be compensated for the unnecessary litigation they were forced to engage in. Plaintiffs 

should not have had to file this motion to get Defendants to comply with their MIDP discovery 
9

obligations. However, other than the filing of the instant motion, Plaintiffs have not been 

prejudiced by Defendants’ delayed MIDP disclosures. No depositions have taken place and fact 

discovery can be completed within the time previously allowed by the Court. The deadline to 

issue notices of depositions with agreed upon dates is August 6, 2021 and fact discovery closes on 

October 29, 2021. Doc. 93. This schedule provides the parties sufficient time after Defendants 

provide complete MIDP disclosures on July 19, 2021 to issue notices of depositions and complete 

fact discovery, and no dispositive motion or trial dates have been set. Finally, Defendants fail to 

demonstrate any circumstances that would make an award of reasonable expenses unjust in this 

case.

Because Defendants have failed to show that their lack of disclosure was substantially 

justified or harmless, and have failed to demonstrate other circumstances that would make an 

award of expenses unjust, the Court concludes that a sanction in the amount of reasonable 

attorney’s fees incurred by Plaintiffs in bringing this discovery motion is appropriate. The Court 

directs Defendants to pay Plaintiffs for their reasonable attorney’s fees related to the filing of their 

motion to compel and for sanctions. Within one week from the date of this Order, Plaintiffs shall 

submit an affidavit to Defendants attesting to the reasonable attorney’s fees incurred in filing the 

instant motion. If the parties do not thereafter agree on the amount of attorney’s fees, they shall 

promptly bring the dispute to the Court’s attention for resolution.

Lastly, the Court finds that the request to prohibit Defendants from seeking any additional 

extensions in this case less than two weeks prior to any deadline and to require a good cause 

showing why any extension should be granted is neither justified nor necessary because 

Defendants’ delay in MIDP compliance ultimately did not impact any other Court-imposed 
10

deadlines and a demonstration of good cause is already required by Rule 16(b)(4) to justify any 

extension of the Court’s scheduling order.

CONCLUSION

For these reasons, Plaintiffs’ Motion for Sanctions and Motion to Compel Discovery [95] 

is granted in part and denied in part. This case remains set for status on August 19, 2021 at 9:15 

a.m. by telephone.

SO ORDERED.

Dated: July 13, 2021 ______________________________

Sunil R. Harjani

United States Magistrate Judge