IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

AISHA PUTNAM, )

)

Plaintiff, ) No. 20 C 2074

)

v. ) Magistrate Judge Jeffrey Cole

)

CARAMELCRISP LLC, )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

The plaintiff has filed a motion to exclude documents the defendant produced more than a

year after the close of discovery. For the following reasons, the motion [Dkt. #91] is granted and

the documents are excluded.

After several extensions, fact discovery in this case closed on November 11, 2022. Oddly,

nearly a year later, on September 28, 2023, counsel reported to Judge Hunt (to whom this case had

just been reassigned) that they were still “determining whether they need expert discovery.” [Dkt.

#83]. They decided that they did and submitted an expert discovery schedule on October 9, 2023.

[Dkt. #86]. The schedule was pared down by the court and deadlines for disclosures of affirmative

expert witnesses were set (12/15/23), as were deposition dates for those witnesses (2/29/24),

disclosure of rebuttal witnesses (3/29/24), and deposition datesfor rebuttal witnesses (4/30/24). [Dkt.

#87]. At some point – defendant won’t say when – defendant retained and disclosed Kevin Keener

as its expert and, according to counsel – at some point – he asked whether there were any additional

materials that might be relevant to his opinion. Defendant purportedly took a look – at some point

– and came up with 115 pages of documents that it said it had not found a year earlier. Purportedly,

Case: 1:20-cv-02074 Document #: 107 Filed: 01/18/24 Page 1 of 8 PageID #:992
pursuant to Fed.R.Civ.P. 26(e)’s requirement of supplemental production, defendant produced those

documents to plaintiff in three batches on December 11-13, 2023.

Now, obviously, producing materials a year after the close of discovery raises all sorts of

problems and red flags. Unfortunately, in its response brief, defendant is rather cavalier about its

discovery obligations. But, this very late production of documents by the defendant implicates

Fed.R.Civ.P.37(c)(1), which warns that, “[i]f a party fails to provide information or identify a

witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness

to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified

or is harmless.” The proponent of the evidence – here the defendant – bears the burden of making

this showing. See Salgado by Salgado v. Gen. Motors Corp., 150 F.3d 735, 742 (7th Cir. 1998).

While “[t]he sanction of exclusion is ... automatic and mandatory” absent such a showing, Barnett

v. Menard, Inc., 851 F. App'x 619, 623 (7th Cir. 2021);Finley v. Marathon Oil Co., 75 F.3d 1225,

1230 (7th Cir. 1996), “[t]he determination of whether a Rule 26(a) violation is justified or harmless

is entrusted to the broad discretion of the district court,” Johnson v. C. R. Bard, Inc., 77 F.4th 641,

646 (7th Cir. 2023), and a district court need not make explicit findings concerning the existence of

a “substantial justification” or the harmlessness of a failure to disclose. Keach v. U.S. Tr. Co., 419

F.3d 626, 640 (7th Cir. 2005). The district court's discretion should be guided by the following

factors: (1) the prejudice or surprise to the party against whom the evidence is offered; (2) the ability

of the party to cure the prejudice; (3) the likelihood of disruption to the trial; and (4) the bad faith

or willfulness involved in not disclosing the evidence at an earlier date. Keach, 419 F.3d at 640; 

Tribble v. Evangelides, 670 F.3d 753, 760 (7th Cir. 2012); David v. Caterpillar, Inc., 324 F.3d 851,

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857 (7th Cir. 2003).1 Here, when those considerations are weighed, the needle points toward

excluding the documents that the defendant inexplicably produced more than a year after the close

of fact discovery. There is no acceptable justification for what has occurred in this case.

Prejudice or Surprise:

It is always going to be a surprise – to put it mildly – if a party suddenly produces documents

a year after discovery is closed. But, according to the defendant, there is no prejudice because 85

pages of the documents were publicly available, the food and safety inspection mentioned in

previouslyproduced documents, part of the email was previouslyproduced, and the other documents

came from a person disclosed as a as a person with knowledge. [Dkt.#100, at 7-9]. Perhaps, but isn’t

there at least some prejudice insofar as not knowing until after discovery is over that a public

document is going to be used? Or how it’s going to be used? And if the other documents were

already produced, then why didn’t the defendant’s expert simply use them instead asking of

additional materials? 

Ability to Cure

According to the defendant, anyinability to cure any prejudice is the fault of the plaintiff. The

defendant contends that:

Had Plaintiff met and conferred with Defendant before filing this Motion, the Parties

could have conferred on whether, after reviewing the documents, Plaintiff actually

foresees a need for any further fact discovery. If there was such a need, the Parties

might have agreed on a proposal to present to the Court. Plaintiff, however, did not

meet and confer. 

[Dkt. #100, at 9].

1 Discretion without a criterion for its exercise is authorization of arbitrariness. Brown v. Allen, 344

U.S. 443, 496 (1953)(Frankfurter, J., concurring and dissenting in part). 

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It’s true that, if your opponent sends you a hundred pages of discovery a year after fact

discovery is over, one would think you would contact him and ask what was going on. Most people

certainly would. But, for whatever reason, the plaintiff did not. Instead, the plaintiff, in apparent

violation of L.R. 37.2, filed a motion under Fed.R.Civ.P. 37 the day after the last pages came in.2

In order to “curtail undue delayand expense in the administration of justice,” Local Rule 37.2

states that:

. . . this court shall hereafter refuse to hear any and all motions for discovery and

production of documents under Rules 26 through 37 of the Federal Rules of Civil

Procedure, unless the motion includes a statement (1) that after consultation in person

or by telephone and good faith attempts to resolve differences they are unable to

reach an accord, or (2) counsel's attempts to engage in such consultation were

unsuccessful due to no fault of counsel's’. Where the consultation occurred, this

statement shall recite, in addition, the date, time and place of such conference, and

the names of all parties participating therein. Where counsel was unsuccessful in

engaging in such consultation, the statement shall recite the efforts made by counsel

to engage in consultation. 

N.D.Ill.L.R. 37.2. 

District courts have discretion to determine how and when to enforce their Local Rules and

related matters. Frakes v. Peoria Sch. Dist. No. 150, 872 F.3d 545, 549 (7th Cir. 2017). See also

Waldridge v. American Hoechst Corp., 24 F.3d 918, 923 (7th Cir.1994)(Whether to applysuch a rule

strictly or to overlook any transgression is a matter we leave to the district court's discretion, . . . .”);

2

In order to “curtail undue delay and expense in the administration ofjustice,” LocalRule 37.2 states

that “this court shall hereafter refuse to hear any and all motions for discovery and production of documents

under Rules 26 through 37 of the Federal Rules of Civil Procedure, unless the motion includes a statement

(1) that after consultation in person or by telephone and good faith attempts to resolve differences they are

unable to reach an accord, or (2) counsel's attempts to engage in such consultation were unsuccessful due

to no fault of counsel's. Where the consultation occurred, this statement shall recite, in addition, the date,

time and place of such conference, and the names of all parties participating therein. Where counsel was

unsuccessful in engaging in such consultation, the statement shall recite the efforts made by counsel to

engage in consultation.”

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Little v. Cox's Supermarkets, 71 F.3d 637, 641 (7th Cir.1995)(“the decision whether to apply [a

local] rule strictly or to overlook any transgression is one left to the district court's discretion”). It

should come as no surprise to a defendant that produces 115 pages of discovery out of nowhere more

than a year after the close of discovery that a court is not going to look the other way simply because

the plaintiff didn’t confer with them before filing a motion. Nor should it. Rules – local or otherwise

– are meant to be followed. Cf., Lowrey v. Tilden, 948 F.3d 759, 761 (7th Cir. 2020).

In any event, by its terms, the Rule literally applies to “motions for discovery and production

of documents,” not to motions to ban late-produced documents. Moreover, while it is possible the

two sides could have worked something out to address the late-produced documents, it seems

unlikely given the tenor of the parties’ presentations. The circumstances are not unlike those in

Finwall v. City of Chicago, 239 F.R.D. 494 (N.D. Ill. 2006), where:

[a] call would simply have signaled the [plaintiff’s] capitulation to the reordering of

the discovery schedule necessitated by the [defendant’s] rule and discovery closure

violations. Local Rule 37.2 did not obligate the [plaintiff] to be the hapless victims

of the [defendant’s] unapologetic disobedience to [the court’s] discovery schedule.

239 F.R.D. at 500. Defendant could certainly be described as “unapologetic” here. 

Most importantly, however – and in keeping with the defendant being unapologetic – the

defendant simply assumes that discovery would be reopened because it didn’t locate and produce

documents it calls relevant [Dkt. #100, at 3] a year earlier. That’s a bold and faulty assumption. 

Discovery began back in January of 2021 and was scheduled to be completed by July 22, 2021, a

date the parties, themselves, selected. [Dkt. #25]. At the parties’ behest, that deadline was extended

several times – first, for an additional four months [Dkt. #28], then for another four months [Dkt.

# 33], then for an additional three months [Dkt. #50], then for three months again [Dkt. #55], and

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finally, another two months. [Dkt. #59]. That is more than sufficient. Late disclosure is not harmless

simply because there is time to reopen discovery before trial. Smith v. City of Chicago, No. 21 C

1159, 2023 WL 5211667, at *8 (N.D. Ill. Aug. 14, 2023); Finwall, 239 F.R.D. at 500. And,

additional discovery – and perhaps, additional discovery disputes – long after the deadline does not

“curtail undue delay and expense in the administration of justice.” N.D.Ill.L.R. 37.2.

Disruption to Trial

While it is true that no trial date has been set, that fact does not alter the result reached in this

Opinion. Judge Hunt made it clear that a trial date will be set on the heels of the completion of expert

discovery. [Dkt. #90 (“Once all discovery deadlines have passed, the Court will hold a pretrial status

hearing at which time a firm trial date will be set.”)]. This case is already almost four years old.

Defendant’s curative for its lengthy delay in producing these documents – additional discovery –

will, of course, push back the end of expert discovery, which will in turn push back the setting of a

trial date. So, while there is technically no trial to disrupt, there is a progression to trial that will be

derailed. 

Bad Faith

While the court cannot definitively say the defendant acted in bad faith, it certainly cannot

find that it did not. The defendant’s explanation of what it did is cursory to the point of being

insouciant:

. . . when Defendant hired its expert witness, the expert requested certain documents

which he believed would be relevant to creating his expert report. When Defendant

found some of the documents he requested, it provided them to counsel, and counsel

provided them to Plaintiff as soon as possible.

[Dkt. #100, at 10]. This rests on the unsupported assertion of counsel in a brief. It is not evidence. 

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I.N.S. v. Phinpathya, 464 U.S. 183, 188 n.6 (1984)(dismissing “[c]ounsel's unsupported assertions

in respondent's brief . . . .”); Mitze v. Colvin, 782 F.3d 879, 882 (7th Cir. 2015)(“But assertions in

briefs are not evidence,. . . .”); United States v. Stevens, 500 F.3d 625, 628-29 (7th Cir. 2007)

(“[A]rguments in a ... brief, unsupported by documentary evidence, are not evidence.”); Campania

Mgmt. Co. v. Rooks, Pitts &Poust, 290 F.3d 843, 853 (7th Cir. 2002) (“[I]t is universally known that

statements of attorneys are not evidence.”).3

Moreover, “when” is the question. When did the defendant hire its expert witness? When

did the defendant find the documents? And why is the defendant putting together a file of

unproduced documents for its expert witness to rely on in the first place. And, why didn’t the

defendant find these documents a year ago when it was supposedly conducting reasonable searches

for them? What efforts did defendant undertake to assist its expert that it failed to undertake to

produce the documents in discovery? And finally, as the plaintiff points out, unless the defendant’s

expert rushed through preparation of his report, it certainly would appear the defendant, at the very

least, failed to produce the documents when it found them and provided them to its expert. Instead,

it would appear the defendant waited, documents in hand, until the expert completed his work. 

3

It cannot be too often noted that in any context merely saying so does not make it so. See, e.g.,

United States v. 5443 Suffield Terrace, Skokie, Ill., 607 F.3d 504, 510 (7th Cir. 2010); Guerrero v. BNSF Ry.

Co., 929 F.3d 926, 929 (7th Cir. 2019). It never has. See also Stromberg Motor Devices Co. v. Zenith

Carburetor Co., 254 F. 68, 69 (7th Cir. 1918). Accord Madlock v. WEC Energy Group, Inc., 885 F.3d 465,

473 (7

thCir. 2018); Illinois Republican Party v. Pritzker, 973 F.3d 760, 770 (7th Cir. 2020); Donald J. Trump

for President, Inc. v. Secy of Pennsylvania, 830 F. Appx 377, 381 (3d Cir. 2020)(“But calling an election

unfair does not make itso. Charges require specific allegations and then proof. We have neither here.”). Even

the Solicitor General’s unsupported assertions are not enough. Digital Realty Trust, Inc. v. Somers, _U.S._,

138 S.Ct. 767, 779 (2018); Bowers v. Dart, 1 F.4th 513, 520 (7

th Cir. 2021)(“With all of this evidence in

mind, we share the district court's conclusion that a rational juror could doubt that Bowers was telling the

truth by insisting he could not walk.”). “Talk is cheap,” Planned Parenthood of Indiana and Kentucky v. Box,

949 F.3d 997, 998 (7

th Cir. 2019). An attorney’s assertions in a motion or brief are not evidence. See INS v.

Phinpathya, 464 U.S. 183, 188 n. 6 (1984); Mitze v. Colvin, 782 F.3d 879, 882 (7th Cir. 2015); Malik v.

Holder, 546 F. App'x 590, 593 (7th Cir. 2013); Gross v. Knight, 560 F.3d 668, 672 (7th Cir.2009).

7

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As stated earlier, the defendant’s tale is cursory, leaves out all the details, and leaves out the

entire timeline. When documents are produced more than year late – not a few weeks or even a few

months – a sketchy, purely self-serving explanation does not suffice! The later the documents are

produced, the better the explanation should be. Combining that along with the other factors,

exclusion is appropriate in this case.

ENTERED: 

UNITED STATES MAGISTRATE JUDGE

DATE: 1/18/24

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