16546/SAB/CAT 

 IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

WESTERN DIVISION 

NICK GEORGEFF 

Plaintiff,

 vs. 

DON BORNEKE CONSTRUCTION, INC., 

 Defendant.

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Case No.: 3:20-cv-50313 

PLAINTIFF’S MOTION TO COMPEL 

 NOW COMES, the Plaintiff, NICK GEORGEFF, by and through his attorneys, ANESI, 

OZMON, RODIN, NOVAK & KOHEN, LTD., and for his Motion to Compel the full and proper 

discovery answers, responses, and document production of the Defendant, DON BORNEKE 

CONSTRUCTION, INC, states as follows: 

1. This matter arises out of an incident that occurred on or about November 15, 

2018, in which the Plaintiff was injured while working on a wind farm construction site in 

Mendota Hills, IL. 

2. On December 18, 2020, Plaintiff propounded written discovery on the Defendant 

in this matter. 

3. After multiple telephone conferences and emails requesting Defendant’s 

responses to discovery, Defendant provided its initial discovery responses on April 1, 2021. 

4. After receiving Defendant’s discovery responses, Plaintiff determined that the 

responses were deficient in numerous ways. 

5. As such, Plaintiff issued a letter to Defense counsel in which it laid out the 

deficiencies and asked Defendant to amend its responses to correct said deficiencies (see letter, 

attached as Exhibit “A”). 

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6. After numerous follow ups by Plaintiff, Defense counsel provided a letter on June 

9, 2021, in which it said, in summary, that it would provide updated answers/responses if 

available and appropriate (this has not been done), that Plaintiff should be required to resubmit 

new interrogatories and requests for production, and that it would not provide updated responses 

or document production in Response to Requests for Production 10-16. (See correspondence, 

attached as Exhibit “B”). 

7. Defendant’s main contentions for not providing additional documentation (in 

response to Requests for Production 10-16) are that because Plaintiff slipped on ice, and since 

Defendant claims it was not responsible for snow/ice removal until after the date of the accident, 

Defendant should not be required to be burdened with providing additional documents, answers 

or responses. (See Exhibit B). 

8. However, the snow and ice are but one portion of what caused the Plaintiff’s 

injuries. The Defendant was responsible for grading and maintaining the jobsite as a whole prior 

to the subject incident, and yet large ruts were present throughout the jobsite – including where 

Plaintiff had been injured. 

9. Additionally, in its Response letter, Defendant cites to caselaw that says 

“discovery rules are not a ticket to an unlimited, never-ending, exploration of every conceivable 

matter that captures an attorney’s interest” and that Courts “protect targets of discovery from 

annoyance, embarrassment, oppression, or undue burden or expense.” (See Exhibit B at P 4). 

Defendant also claims that Plaintiff’s Counsel’s April 23, 2021, letter expands the scope of the 

propounded discovery and unfairly burdens the Defendant. 

10. First, F.R.C.P. 26(B)(1) states in relevant part that, “Parties may obtain discovery 

regarding any nonprivileged matter that is relevant to any party’s claim or defense . . . . 

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Information within this scope of discovery need not be admissible in evidence to be 

discoverable.” Plaintiff is simply asking for information and documents pertaining to 

Defendant’s scope of work that it was responsible for on the jobsite that could potentially relate 

to the Defendant’s acts or omissions that proximately caused the Plaintiff’s injuries. The 

requested information further does not embarrass, oppress or create an undue burden or expense. 

The types of requested information are very common in these types of cases. Moreover, the very 

documentation Defendant claims would be unduly burdensome to produce are required and 

referenced by the Contract for this jobsite – so it is all within the Defendant’s possession already. 

(See Exhibit A at P. 6-7). 

11. Next, Defendant’s claim that this letter expands the scope of discovery and 

unfairly burdens the Defendant is simply not true. Plaintiff’s letter simply details the types of 

information and documents Plaintiff is seeking. The reason this was done is because Defendant 

decided to unilaterally choose what is appropriate to provide in response to written discovery. 

For example, Plaintiff originally requested all photographs for the 60 days prior and 35 days 

subsequent to the subject incident, including “jobsite progress photos” (See Exhibit A at p. 5), 

but defendant now claims this letter expands the scope of discovery to include progress photos. 

Again, this is not the case. The same examples apply to the specific requests for contract 

documents when they were already requested by Request No. 10 (see Exhibit A at p. 6), and the 

specific safety documentation requested in Plaintiff’s April 23, 2021, letter was broadly 

requested in Requests 15 & 16. If Plaintiff, inadvertently expanded the originally requested time 

frames, Plaintiff will defer to the timeframes referenced in the Interrogatories and Requests for 

Production of documents, but still insist on complete answers and document production. 

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12. Moreover, the requested documentation, are not overly burdensome on the 

Defendant and are extremely relevant and probative to this case. Had the ground conditions been 

properly graded, maintained, and/or repaired, as required by the contract documents and the 

“Plan of the Day” provided for the subject date of incident, Plaintiff’s accident could have 

arguably been avoided all together. For example, the Plan of the Day lists ground conditions as 

the responsibility of the Defendant for the whole jobsite – this is clear evidence supporting the 

relevance of the requested documentation. Nonetheless, Defendant unilaterally decided to 

provide only one Plan of the Day (for the date of the incident) as opposed to the requested time 

frame. These deficiencies also continue in terms of other answers/responses and documents 

produced. 

13. “Under Federal Rule of Civil Procedure 26, the scope of discovery reaches any 

matter, not privileged, that is relevant to the claim or defense of any party. [Further], [t]he 

information sought need not be admissible at trial if the information sought appears reasonably 

calculated to lead to the discovery of admissible evidence.” Bruggeman v. Blagojevich, 219 

F.R.D. 430, 432 (N.D. Ill. 2004) (emphasis added); Wiginton v. CB Richard Ellis, Inc., 229 

F.R.D. 568, 571 (N.D. Ill. 2004); see also Fed R. Civ. P. 26(b)(1). Moreover, the question is not 

whether or not the information is admissible, but rather, “whether the information sought by 

Plaintiffs is relevant and likely to lead to the discovery of admissible evidence.” Bruggeman, 219 

F.R.D. at 432.

14. Furthermore, the burden is not on the party propounding the discovery, but rather, 

“[t]he burden is on the party objecting to the discovery to show why such discovery is 

improper.” Id.

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15. So, for Defense counsel to pick and choose what documents to provide, which 

interrogatories to fully answer, and to impose time limitations on documents, answers, and 

responses for only the date of the incident is nothing more than an attempt to use discovery as a 

tactical game against applicable law. Moreover, as shown above, the “reason” why defendant 

does not properly answer/respond to written discovery is presupposed on the condition that the 

snow and ice are the complete elements of Plaintiff’s claim – this could not be further from the 

truth. 

16. Therefore, Defendant’s contention that snow and ice caused Plaintiff’s injuries, so 

they do not need to comply further with discovery is incorrect, and it only takes a small portion 

of Plaintiff’s claim and applies it to this case as a whole. Moreover, Plaintiff’s Complaint at Law 

not only alleges Defendant’s responsibility for snow and ice removal, but also its responsibility 

to grade and maintain the roadways on this subject jobsite. (See Docket Entry #10, Plaintiff’s 

First Amended Complaint at Law at Paragraphs 7, 8, 11, 12, 12(a) – 12(i), 15, and 18). 

17. Defendant has failed to show that the requested information will not lead to that 

which may be potentially relevant or admissible, and Defendant has failed to show why the 

discovery is improper. As such, Defendant should be required to provide amended answers to 

interrogatories and responses to requests for production of documents based on the full 

timeframe and scope asked for in Plaintiff’s Interrogatories and Requests for Production of 

Documents. Moreover, this same requirement should be applied based on the specific requests to 

supplement Defendant’s discovery responses in Plaintiff’s Counsel’s April 23, 2021, letter and 

based on the time frames referenced in the original Interrogatories and Requests for Production 

of Documents. 

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18. Plaintiff requests this Honorable Court order the Defendant to supplement its 

answers to the following interrogatories, per the Plaintiff’s Counsel’s April 23, 2021, letter: 

a. #2, #3, #8, #9, #13, & # 15. 

19. Examples of the requested information in Plaintiff’s Interrogatories would be: 

complete list of witnesses; identities of individuals present before/at/after the occurrence; a list of 

supervisory personnel employed by the Defendant for 90 days prior and 30 days subsequent to 

the occurrence; list of inspections made by the Defendant for 90 days prior and 30 days 

subsequent to the occurrence; identification and production of any and all photographs for the 

project for 90 days prior and 30 days subsequent to the occurrence; a proper identification of all 

applicable insurance – including umbrella/excess; and other information specifically listed in the 

Plaintiff’s Counsel’s April 23, 2021 Correspondence to the Defendant (again Plaintiff defers to 

the timeframes listed in the original discovery). 

20. Plaintiff also requests this Honorable Court order the Defendant supplement its 

responses and document production in response to the following Requests for Production of 

Documents, per the Plaintiff’s Counsel’s April 23, 2021. 

a. # 3, #7, #10, #11, #12, #13, #14, #15, #16 

21. Examples of the requested and relevant documentation would be: all Plan of the 

Days; Defendant’s Corporate Safety Manual; Defendant’s Site Specific Safety Plan; Job Hazard 

Analyses; Tool Box Talks; Progress Reports; Daily Logs; Sign in Sheets; Safety Meeting 

minutes/attendance forms/handouts/etc; Change Orders; Contract Documents (all requested in 

Plaintiff’s Counsel’s April 23, 2021 letter); Hazard Communications; Pre-Task Plans; 

Documentation Pertaining to onsite safety personnel; Weekly Reports of Hazard Recognitions; 

Drawings; Specifications; Standards; Road Agreements; all photographs of the subject jobsite 

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(including progress, aerial, drawings, etc); and other documents withheld by the Defendant. 

Plaintiff believes for documentation with a specific date range, a period of 90 days prior to the 

subject incident and 30 days subsequent is fair and sufficient, but Plaintiff will also defer to the 

originally requested timeframes for each interrogatory and request for production of documents, 

if this Honorable Court deems appropriate. 

22. The requested information is highly relevant to the claims or defenses and could 

further lead to the discovery of relevant and admissible information. 

23. As such, Defendant’s compliance is required by applicable law. 

 WHEREFORE, Plaintiff, NICK GEORGEFF, by and through his attorneys, ANESI, 

OZMON, RODIN, NOVAK & KOHEN, LTD., pray this Honorable Court enter an order 

compelling the Defendant, DON BORNEKE CONSTRUCTION, INC., to fully answer written 

discovery as detailed in this Motion and Plaintiff’s Counsel’s April 23, 2021, letter, and for any 

other relief as this Honorable Court deems equitable and just. 

 Respectfully submitted by, 

 ANESI, OZMON, RODIN, NOVAK & KOHEN, LTD. 

 By: /S/ Charles A. Terry 

 Attorney for the Plaintiff, NICK GEORGEFF 

Steven A. Berman 

ARDC No.: 6224469 

Charles A. Terry 

ARDC No.: 6330705 

ANESI, OZMON, RODIN, NOVAK & KOHEN, LTD. 

161 N. Clark Street-21st Floor 

Chicago, IL 60601 

Tel: 312.372.3822 

Email: sberman@anesilaw.com 

 cterry@anesilaw.com 

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