Beruflich Dokumente
Kultur Dokumente
DISTRICT COURT OF
Discovery.
3. A good faith effort has been made to recover the Plaintiff's Responses.
counsel for a response, noting that if responses were not received by December 15, 30
days after service of Discovery, a Motion to Compel would be filed. On December 12,
2009, a phone message was left with Defendant's counsel asking for Responses. No
4. The Plaintiff has refused to provide responses and has not indicated that
Since the Plaintiff has refused to respond in a timely manner, the Defendant
moves the court to compel the Plaintiff to respond to the Discovery requests.
Motion to Compel - 1
www.NorthwestRegisteredAgent.com
3, 4, 5 of Plaintiffs' First Request For Production of Documents
5. Despite Chicago's factual assertions set forth above, Chicago has refused to
produce documents for inspection for these categories of documents on the assertion that
documents responsive to these categories are either not relevant to any of the issues in this
litigation or have no potential to lead to relevant evidence.
6. On the contrary, the documents requested are relevant (or may lead to relevant
evidence) as to issues raised by Chicago in 07-2955 and are relevant to rebut the factual
assertions made by Chicago in Chicago's §2-619 motion to dismiss Count I of the Second
Amended Complaint are based on material outside the pleadings.
7. In addition ¶ 16 of Plaintiffs' Request For Production requested any documents
relating to:
A. the contamination of properties in the so-called "Acquisition Area" in Bensenville
with hazardous or toxic substances.
B. the potential health effects of exposure to the hazardous or toxic substances
present in or on the land or structures in the so-called "Acquisition Area" in
Bensenville.
C. any proposed demolition of any of the structures in the so-called "Acquisition
Area" in Bensenville.
D. Any health or safety risks relating to any proposed demolition of any of the
structures in the so-called "Acquisition Area" in Bensenville, including but not
limited to health or safety risks to Bensenville residents.
8. Chicago has produced some documents in response to Request #16 relating to its
activities with its consultant CRA, but refuses to produce any documents responsive to Request
16 which do not relate to its CRA activities or which pre-date its CRA activities — even though
such withheld documents are responsive to Request #16. Chicago asserts that such documents
are not relevant or could not lead to relevant evidence. On the contrary, the documents requested
in #16 are relevant (or may lead to relevant evidence) as to issues raised by Chicago in 07-2955
electronic files which depict and describe the geographic and physical conditions which currently
3
exist and which will exist in the Acquisition Area. These electronic files are known by the
shorthand descriptors of "GIS" (for "Geographic Information System") and "CAD" ("Computer
Aided Design") files. Chicago has provided some selected (by Chicago) GIS and CAD files of
the conditions in the Acquisition Area but has refused to produce other GIS and CAD files of
conditions in Acquisition Area on the claim that such GIS and CAD files are neither relevant to
the issues in 07-1620 or 07-2955 not would these files potentially lead to relevant evidence.
10. On the contrary, the GIS and CAD files documents requested are relevant (or may
lead to relevant evidence) as to issues raised by Chicago in 07-2955 and the issues in No. 07-
1620.
11. Plaintiffs seek this relief at this time as Plaintiff's are mindful of the fast
approaching May date for the trial and determination of the issues raised in 07-1620 and 07-
2955; prompt relief from this Court is necessary for Plaintiffs to prepare their case.
12. Plaintiffs certify pursuant to Supreme Court Rule 201(k) that Plaintiffs have been
unable to reach an agreement resolving this discovery dispute by consultation with opposing
counsel.
WHEREFORE Plaintiffs pray for an order from this court compelling Chicago to
"All documents relating to the necessity of taking each and all of the properties
within the Village of Bensenville which Chicago claims are necessary for
Chicago to construct the "Phase 1 Airfield Project."
All documents relating to the necessity of taking each and all of the properties
within the Village of Bensenville which Chicago claims are necessary to construct
the remainder of the "Total Master Plan" (apart from the "Phase 1 Airfield
Project") (also called "Phase II" or "Phase 2").
All documents relating to the specific construction activity (by contract or request
for proposal if applicable) that makes the taking of each of the individual
properties in Bensenville necessary."
All documents relating to:
A. the contamination of properties in the so-called "Acquisition Area" in Bensenville
with hazardous or toxic substances.
4
Pursuant to Supreme Court Rule 219(a), Plaintiffs James Darby, et al., and Tanya Lazaro,
et al. (together, "Plaintiffs"), respectfully move this Court to order Intervenors Christie Webb, et
al. (together "Intervenors") to respond to Plaintiffs' requests for production of documents and
interrogatories. Although Plaintiffs served these requests nearly six months ago, Intervenors
have provided no substantive response. Instead, Intervenors have offered only improper and
erroneously asserted that they are not obligated to engage in discovery because a motion to
dismiss is pending in this matter. All of these objections are without merit.
The parties have conferred as required by Rule 201(k), but have been unable to resolve
the issue. Plaintiffs are left with no choice but to ask the Court for relief. In support of this
BACKGROUND
1. Plaintiffs in this case are 23 same-sex Illinois couples who wish to marry or have their
out-of-state marriages recognized here, but arc prohibited from doing so by the ban on marriage
between people of the same sex contained in 750 ILCS 5/201 (the "marriage ban").
2. On May 30, 2012, Plaintiffs filed this lawsuit against Cook County Clerk David Orr
challenging the validity of the marriage ban under several provisions of the Illinois Constitution.
3. After both Mr. Orr and Illinois Attorney General Lisa Madigan declined to defend the
marriage ban, county clerks from five other Illinois counties filed motions to intervene.' Both
motions were granted and these Intervenors are now defending the ban.
Christie Webb, in her official capacity as Tazewell County Clerk, and Kerry Hirtzel, in his
official capacity as Effingham County Clerk, moved to intervene on June 29, 2012. Daniel S.
Kuhn, in his official capacity as Putnam County Clerk, Patricia Lycan, in her official capacity as
Crawford County Clerk, and Brenda Britton, in her official capacity as Clay County Clerk,
moved to intervene on November 21, 2012.
1
4. Intervenors filed a Motion to Dismiss at the same time they moved to intervene. 2 That
5. On January 11, 2013, Plaintiffs filed with the Court and served on Intervenors Document
Requests and Interrogatories, as authorized by Rules 201, 213, and 214. See Plaintiff James
6. That same day, 3 Intervenors filed a motion to stay the current action, including briefing
on the Motion to Dismiss, arguing that the outcome of two cases pending before the United
States Supreme Court, Hollingsworth v. Perry, No. 12-144, and Windsor v. United States, No.
12-307, were potentially dispositive of this matter. See Motion of Intervenors to Suspend
Briefing on Motion to Dismiss and to Stay Proceedings Herein ("Stay Motion") (Exhibit 3
hereto). The Stay Motion argued that it was not "advisable to schedule any further proceedings
(except for status reports) apart from the balance of briefing in Intervenors' Motion to Dismiss."
Stay Motion at 4-5. On that basis, Intervenors specifically requested a stay of both briefing on
the Motion to Dismiss and any "further proceedings herein." Id. at 5. The Court denied that
7. After the Court's ruling denying any stay, Intervenors served a set of objections to the
Interrogatories and Document Requests ("Objections") (Exhibit 4 hereto). Intervenors did not
respond to any of Plaintiffs' interrogatories and did not produce a single document, even though
2 When the second group of clerks intervened, they joined in the Motion to Dismiss filed by the
Webb and Hirtzel.
3
Intervenors' Motion was corrected on January 14, 2013.
2
many of Plaintiffs' requests were routine, Instead, Intervenors raised a host of objections,
arguing "principally" that "plaintiffs' interrogatories and document requests [were] unwarranted
and premature." Objections at 2. In the view of Intervenors, Plaintiffs had "failed to plead a
recognized cause of action entitling them to any relief in this litigation," and therefore
8. Plaintiffs' counsel Jordan Heinz wrote to Intervenors' counsel Thomas Brejcha on May
16, 2013, protesting Intervenors' failure to provide any substantive responses to Plaintiffs
discovery and asserting that Intervenors' objections were improper. See May 16, 2013 letter
from Heinz to Brejcha ("May 16 Letter") (Exhibit 5 hereto), at 1. Plaintiffs' counsel requested
that Intervenors "correct these deficiencies by providing all relevant information responsive" to
the discovery requests. Id. Counsel further pointed out that "[t]here is no stay of discovery—
indeed, the Court denied Intervenors' request for a stay—thus Plaintiffs' requests are not
premature." Id. at 2. Counsel requested that Intervenors respond by May 30, 2013.
9. Intervenors' counsel responded to this letter on June 7, 2013, stating that the May 16,
2013 letter contained "no response whatsoever to our principal objection . . . that all of your
discovery, in its totality, is both 'unwarranted and premature.'" June 7, 2013 Letter from
Brejcha to Heinz ("June 7 Letter") (Exhibit 6 hereto). Intervenors counsel also declared that
because the pending Motion to Dismiss, brought under Rule 2-615, did not require fact discovery
for its resolution, and because this Court had agreed with that uncontroversial point at a hearing,
10. Plaintiffs' counsel wrote again on June 11, 2103, explaining "[g]iven that discovery has
not been stayed, Plaintiffs expect Intervenors to provide all relevant information responsive to
[the discovery requests] by Thursday, June 13, 2013." June 11, 2013 Letter from Heinz to
3
ARGUMENT
15. Intervenors' refusal to respond to the Discovery Requests is unjustified. Their main
objection, that discovery is suspended while a motion to dismiss is pending, is wrong, both as a
factual and a legal matter. In addition, the specific objections that Intervenors have raised to
I. Intervenors Are Not Excused From Their Discovery Obligations While The Motion
To Dismiss Is Pending.
16. Intervenors are wrong to claim that they are under no obligation to participate in
discovery at this time. The time for discovery in this case has commenced, and this Court has
17. Rule 201(d) of the Illinois Supreme Court Rules states that "[p]rior to the time all
defendants have appeared or are required to appear, no discovery procedure shall be noticed or
otherwise initiated without leave of court granted upon good cause shown." In other words, once
defendants have appeared, discovery can begin. See Yuretich v. Sole, 259 Ill. App. 3d 311, 317
(4th Dist. 1994) ("Discovery may be initiated after all defendants have appeared or are required
to appear, or earlier with leave of court."). Defendant David Orr filed an answer on June 14,
2012, and Intervenors were granted leave to intervene on July 3, 2012 and November 30, 2012.
Therefore, the time for discovery in this case has begun, and Plaintiffs' requests are not
"premature."
18. Intervenors' assert that "[u]nless and until plaintiffs demonstrate that they have filed a
valid cause of action, and until these Intervenors join issue upon a pleading held to state such a
valid cause of action, these Intervenors should not have to comply with discovery requests."
(Objections at 2). This argument is contrary to Rule 201(d), and it was explicitly rejected in
5
Estate of Watson, 127 Ill. App. 3d 186, 192 (2d Dist. 1984) (rejecting argument that plaintiff had
"no right to pretrial discovery until a pleading has been filed which states a valid cause of action"
because "such a requirement is not found in Supreme Court Rules 201 through 219."). See also
Crinkley v. Dow Jones & Co., 67 Ill. App. 3d 869, 880 (1978) (rejecting same argument and
holding that "discovery may be initiated when defendants are required to appear.").
19. As Intervenors themselves have pointed out, they "never asked for a stay of discovery."
June 17 Letter. Yet they seem to believe that a stay is in place because the Motion to Dismiss is
pending and because in resolving that motion "courts are limited to consideration of what is
alleged within the four corners of plaintiffs' pleadings." June 7 Letter. This position is ironic in
light of Intervenors' inclusion in their Motion to Dismiss of a wide range of factual material
drawn from outside the pleadings. But more importantly, it is legally baseless. The filing of a
motion to dismiss does not bring discovery to a halt. Certainly this Court has discretion to stay
discovery while such a motion is pending (see Redelmann v. Claire—Sprayway, Inc., 375 Ill.
App. 3d 912, 927 (1st Dist. 2007) (stay of discovery during pendency of motion to dismiss was
within the trial court's discretion). But no such stay has been entered here. And without a stay,
discovery continues even when a motion to dismiss is pending. See Cullinan v. Fehrenbacher,
2012 Ill. App. 3d 12005 (3d Dist. 2012) ("[T]his case is before us to review the court's
discretionary act of denying a motion to stay. By denying that motion . . . [the court] rules that
20. Moreover, the Stay Motion that Intervenors did make was not limited to a stay of briefing
on the Motion to Dismiss, as Intervenors' counsel now contends. See supra § 6. Intervenors
also asked for a stay of any "further proceedings herein," excepting only status reports, until
6
resolution of the two cases related to marriage equality that are pending before the U.S. Supreme
Court. See Stay Motion at 5. The Court denied that motion thereby ruling that the
21. Intervenors simply have no basis for their refusal to participate in discovery. The time
for discovery has begun because all defendants have appeared. No order or ruling by this Court
has suspended discovery in this action. Intervenors are therefore obliged to respond to the
22. Intervenors' specific objections to Plaintiffs' Discovery Requests have no more merit
than their general objection. As explained below, Plaintiffs' requests are entirely proper and
Interrogatory No. 1
Intervenors have objected to this interrogatory on the ground that it "seeks attorney work-
product." Objections at 6. This is not true. The attorney work-product privilege does not
protect materials generated in preparation for trial unless they include mental impressions or
opinions of an attorney. See, e.g., Waste Mgmt., Inc. v. Intl Surplus Lines Ins. Co., 144 Ill. 2d
178, 196 (Ill. 1991). Here, the interrogatory seeks facts, not attorney mental impressions or
opinions. Moreover, Illinois Supreme Court Rule 213 requires a party to provide the identities
and addresses of witnesses as well as certain other information upon written interrogatory.
Intervenors' additional objection, that the interrogatory "assumes there will be a trial in this
matter" (Objections at 6) is not a proper basis for an objection under Illinois procedure.
7
Interrogatory No. 2
24. Plaintiffs' second interrogatory asks for facts or information that refute Plaintiffs'
allegations. Intervenors object first on the ground that the request is "vague [and] irrelevant,"
without specifying how it is vague or irrelevant. Such a boilerplate objection is improper. See
Lewis v. City of Chicago, 2001 WL 35941195 (Ill. Cir. Ct. Order July 12, 2001) (holding that
other than a blatant attempt at 'gamesmanship"). Furthermore, Plaintiffs are entitled to "full
disclosure regarding any matter relevant to the subject matter in the pending action." Ill. Sup. Ct.
R. 201(b)(1). The "identity and location of persons having knowledge of relevant facts" is fully
discoverable.
25. Intervenors also object on the ground that the request seeks attorney work-product.
Objections at 6. Again, the request seeks "facts or information," which are not excluded from
work-product protection. See Skonberg v. Owens-Corning Fiberglas Corp., 215 Ill. App. 3d
735, 746 (1st Dist. 1991) ("When the disputed material merely reports objective facts or data,
untainted by counsel's mental impressions, theories, or trial strategy, the [work product] doctrine
Interrogatories Nos. 3- 5
26. Interrogatories Nos. 3, 4, and 5 request Intervenors' contentions regarding the state's
interest in prohibiting same-sex marriage. Intervenors object to these requests on the ground that
they seek "theories of intervenors' contentions." Objections at 7-8. But an interrogatory is not
improper simply because it requests a contention. See Van's Material Co. v. Dept. of Revenue,
8
131 Ill. 2d 196, 212 (Ill. 1989) (finding interrogatories proper where they "asked the [party] to
identify its contentions"). Furthermore, the requests do not "seek[] to have intervenors prepare
plaintiffs' case" as Intervenors allege. Objections at 7-8. A party may obtain discovery on any
relevant matter. See Ill Sup. Ct. R. 201(b)(1); Yuretich, 259 III. App. 3d at 317 ("Supreme Court
Rule 201(b)(1) allows a party to obtain by discovery full disclosure regarding any relevant
matter, even where the discovery 'relates to the claim or defense of the party seeking
disclosure' .").
27. Intervenors also object to these requests on grounds that they are "argumentative and
explanation are insufficient as a matter of law. Intervenors' further objection that these requests
seek information protected by the work-product privilege (id.) is without foundation, because, as
explained above, that privilege does protects only attorney mental impressions or opinions.
28. Intervenors also object on the bizarre ground that the interrogatories "assume[] that
evidence is required to adjudicate plaintiffs' allegations." Id. This is not a proper basis for an
objection. If Intervenors have no responsive information, they must affirmatively so state, and if
responsive information later becomes available, must update their responses as required by
Illinois Supreme Court Rule 213(i) ("A party has a duty to seasonably supplement or amend any
prior answer or response whenever new or additional information subsequently becomes known
to that party.").
29. Finally, Intervenors object on the ground that the requests are "duplicative of information
already in plaintiffs' possession, including for example intervenors' legal papers, the legal papers
of various amici, all the references cited in those legal papers and all the numerous references in
9
the possession of plaintiffs' counsel." Objections at 7-8. Vague references to "legal papers" do
interrogatories.
Interrogatory No. 6
30. Interrogatory No. 6 asks Intervenors to identify scholarly research studies, papers, books,
articles, or reports on which Intervenors may rely. Intervenors object on the grounds that the
request "assumes a legal conclusion about the standard of review that will be applied in this
case." Objections at 8. The request makes no such assumption, but even if it did, Intervenors
cite no legal authority for this objection because there is none. If Intervenors have no responsive
information, they must affirmatively so state, and if responsive information later becomes
available, must update their responses as required by Illinois Supreme Court Rule 213(i).
31. Intervenors further object on the ground that the request "seeks to impose unreasonable
unspecific boilerplate objections are improper. Indeed, the Illinois Supreme Court has approved
an almost identical request. See Illinois Supreme Court Approved Interrogatories, Ill. Sup. Ct. R.
2130)(6) ("State the name, author, publisher, title, and date of publication and specific provision
of all medical texts, books, journals or other medical literature which you or your attorney intend
to use as authority or reference in proving any of the allegations set forth in the Complaint.").
32. Plaintiffs' first three document requests seek documents to be used as exhibits or
otherwise in support of Intervenors' expert witnesses, each of those witnesses' curriculum vitae,
and the materials relied on by each witness. Intervenors object to this request by incorporating
10
without any specific application to the request at issue are improper. Moreover, these requests
are consistent with the disclosures required under the Illinois discovery rules. See III. Sup. Ct. R.
213(0(3) ("For each [retained] expert witness, the party must identify . . . (ii) the conclusions and
opinions of the witness and the bases therefor; (iii) the qualifications of the witness; and (iv) any
33. Plaintiffs' fourth document request seeks documents that support or are identified in
Intervenors' answers to Plaintiffs' First Set of Interrogatories. Intervenors object on the ground
that the request is "overbroad and seeking only to impose unreasonable annoyance, expense,
disadvantage, and oppression." Objections at 10. But Plaintiffs' request is not only proper, but
also utterly typical and authorized by the rules of discovery. See, e.g., Ill. Sup. Ct. R. 214 ("Any
party may by written request direct any other party to produce for inspection . . . specified
discovery of the whereabouts of any of these items, whenever the nature, contents, or condition
of such documents, objects, tangible things . . is relevant to the subject matter of the action.");
Ill. Sup. Ct. R. 201 ("[A] party may obtain by discovery full disclosure regarding any matter
relevant to the subject matter involved in the pending action . . including the existence,
description, nature, custody, condition, and location of any documents or tangible things.").
34. Plaintiffs' fifth request seeks documents that Intervenors intend to introduce into
McGill, 2005 WL 3726484 (Ill. Cir. Ct. Order Oct. 28, 2005) ("Illinois courts do not allow
11
parties to introduce documents during trial that were not produced during discovery.") (citing
Smith v. P.A.C.E., 323 Ill. App. 3d 1067 (1st Dist. 2001)). If Intervenors cannot yet identify the
materials they will introduce at trial, they must so state and then update their response as
CONCLUSION
35. For the foregoing reasons, the Court should order Intervenors to provide substantive
Jeffrey W. Sarles
Richard F. Bulger
Aaron S. Chait
Gretchen E. Helfrich
MAYER BROWN LLP
71 South Wacker Drive
Chicago, Illinois 60606
Telephone: (312) 782-0600
Facsimile: (312) 701-7711
12
IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS
COUNTY DEPARTMENT, LAW DIVISION
YOONA HA
Plaintiff,
v.
Case No.: 2014-L-001947
PETER LUDLOW
Defendant.
COMES NOW the Defendant, PETER LUDLOW, through counsel, and pursuant to
Illinois Supreme Court Rule 201 moves to compel Plaintiff YOONA HA (hereinafter -Plaintiff'
or "Ha") to produce her computer(s), cellular phone(s), smartphone(s), external "USW' hard
drive(s) or flash drive(s), and any other hand-held electronic and/or data storage devices used by
her from August 2011 to present. In support of his motion, Defendant states:
Factual Background
("Northwestern"), and Defendant, her former professor, together attended a series of art exhibits
in or around Chicago, Illinois. Exhibit A (Plaintiff's Complaint). grij, 2, 3, 5, 10, 15, 16. Plaintiff
falsely alleges that throughout that night, Defendant insisted that she drink alcohol to the point of
intoxication and, later, sexually assaulted her in violation of the Illinois Gender Violence Act.
On or around December 9, 2014, counsel for Defendant sent a letter to Plaintiff pursuant
to Illinois Supreme Court Rule 201(k), outlining concerns with Plaintiffs discovery responses —
including that Plaintiff had withheld and deleted certain relevant evidence — and requesting that
Plaintiff agree to produce her computer and other handheld devices for a forensic examination
and that she also agree to pay for the expense of that examination. Exhibit B (12/9/14 Letter
On December 15, 2014, counsel for both parties participated in a telephone conference
regarding the request. During that call, counsel for Plaintiff considered'Defendant's arguments
regarding Plaintiffs deletion of and/or failure to produce certain responsive documents, made no
specific objection to Defendant's request, and ultimately indicated that he needed to consult with
his client and think about whether to agree to produce Plaintiff's electronic devices for forensic
examination.
On. January 7, 2015, counsel for Plaintiff responded by email, stating that Plaintiff would
produce her electronic devices for review, but only upon the following conditions: 1) that
Defendant agree to pay for the inspection; 2) that the inspection be limited to a search for emails
and exclude all other types of electronic files; 3) that both parties have equal access and
oversight to the examination and its results; and 4) that Defendant pay to ship Plaintiff's devices
from New York (where Plaintiff is allegedly conducting an internship) to Chicago or agree to
postpone the forensic examination until March 2015 when Plaintiff is expected to return. Exhibit
parties compromise. Specifically, Defendant proposed that the parties share the costs of the
2
forensic examination equally and that they work together to create an agreed upon forensic
examination protocol (agreeing to search terms and parameters which would ensure that the
search sought only responsive documents and not Plaintiff's truly personal and irrelevant data),
but demanded that the scope of the search include all of Plaintiff's electronic data and files and
not just emails. Defendant agreed to Plaintiffs remaining two conditions. Exhibit D (1/9/15
Email from Sedey to O'Connor). Given that it had already been a month since Defendant had
first requested access to Plaintiff's electronic devices, he asked that Plaintiff consider the
proposed compromise and provide Defendant with a response by end of business on Monday,
January 12, 2015. Defendant followed up on his proposal on the morning of January 12. 2015.
Exhibit E (1/12/15 Email from Sedey to O'Connor). As of the date of this motion, one week
Legal Standard
Illinois Supreme Court Rule 214 allows a party to "direct any other party to produce for
stored information..., objects or tangible things." Further. the State of Illinois has a broad
discovery standard, allowing requests which demand -full disclosure regarding any matter
relevant to the subject matter involved in the pending action." Ill. Sup. Ct. Rule 201(b)(1). This
rule has been interpreted to permit liberal pretrial discovery. Winfrey v. Chicago Park Dist., 274
Argu ment
Although the Illinois Courts have remained silent on the question of when a forensic
examination of electronic devices will be allowed, courts in other jurisdictions have repeatedly
allowed such examinations where the party's discovery responses contain -discrepancies or
relevant data has been deleted. See e.g., Genworth Fin. Wealth Mgmt., Inc. v. McMullan, 267
F.R.D. 443, 447-448 (D. Conn. 2010) (forensic examination allowed based, in part, upon
where defendant failed to produce documents); Ameriwood Indus. Inc. v. Liberman, 2006 WL
3825291 at *3 (ED. Mo. Dec. 27, 2006) (forensic examination allowed where forensic evidence
showed defendant failed to produce all responsive email); Simon Prop. Grp. L.P. v. mySinton,
Inc., 194 F.R.D. 639, 641 (S.D, Ind. 2000) (forensic examination allowed to recover "deleted
Here, Plaintiff has admitted to having deleted relevant video footage and has failed to
produce a great many responsive documents despite requests for supplementation. Thus,
Defendant must be allowed to conduct a forensic examination of Plaintiff's computer and hand-
held electronic devices to determine whether additional relevant evidence has been withheld
and/or destroyed.
Plaintiff has admitted to deleting evidence pertaining to the allegations in her lawsuit
against Defendant. This, alone, necessitates a forensic examination. See Genworth Fin. Wealth
after the defendant exhibited considerable bad faith in discovery. including admitting to throwing
away a computer containing relevant evidence. In ruling that a forensic examination was
4
justified, the court explained that "the timing of the computer's disposal [coming after
accusations of unlawful conduct had been levied against the defendant] evidences a
relevant evidence and acknowledged that she might have done so after she had first considered
First, Plaintiff testified at her deposition that she recorded videos throughout the night of
February 10, 2012 while she and Defendant attended a number of art exhibits together. Exhibit F
(Transcript of 'Yoona Ha Deposition), pp. 43:6-44:8, 54:17-21. This was the very same night on
which Plaintiff alleges that Defendant insisted that she drink alcohol and, ultimately, allegedly
assaulted her.
Defendant requested these videos be produced in discovery as they would likely contain
relevant evidence pertaining to timing, content and tone of Plaintiff's interactions with
Defendant throughout the night in question as well as the extent of intoxication which Plaintiff
may have exhibited. However, Plaintiff did not produce the videos. Instead, she testified at her
deposition that at some point after the night of February 10, 2012. she "ridd[edj" herself of the
Plaintiff thinks it is possible that she destroyed this evidence at some point after she met
with Northwestern's Sexual Harassment Officer, Joan Slavin. and acknowledges that at that
point Plaintiff was already "ask[ingj around" about whether she should litigate her claims against
Defendant. Ex. F. pp. 56:20-57:9; 146:16-23. Thus, it is possible that Plaintiff was considering
this lawsuit at the very same time that she deleted the relevant evidence. Defendant is entitled to
conduct a forensic examination to determine the precise date on which this video was deleted.
5
Next, although Plaintiff "ridded" herself of the video footage she shot on the night in
question, she did preserve several photographs she took that night of food and drink she
consumed and a band that was playing while at a bar with Defendant. See Ex. F, pp. 81:20-
88:20. Plaintiff claims that she took one of these three photos as the result of -a journalistic
instinct...to protect [her]self just in case something went terribly wrong." Ex. F, p. 82:3-10. She
explained that she veanted to have ''photo evidence that this did happen" and -something besides
a he-said-she-said scenario to back it up." Ex. F, p. 83:19-22; 85:17-23. Clearly, Plaintiff was
already thinking about her need to collect and preserve evidence in support of her legal claims
even before the alleged assault occurred. Thus, fact that she deleted other equally relevant
electronic evidence from the night in question indicates significant bad faith.
Plaintiff claims to have -[thrown] away" the video because a professor to whom she
reported Defendant's alleged misconduct told her that the incident was "too traumatic" and that,
as a result, she could not use the video as she had planned to complete a journalism assignment.
Ex. F, p. 55:4-24. However, by that logic, the photos she took would also have been too
traumatic and should have been deleted as well. Instead, Plaintiff preserved those photos,
provided them to Northwestern in support of her complaint against Defendant, and ultimately
produced them as evidence in this suit. See Group Exhibit G (2/18/12 Email from Ha to Slavin).
Clearly, in the time since the alleged assault took place, Plaintiff has cherry-picked which
evidence to preserve and which evidence to delete - saving and producing those files which she
,
believes trump the "he-said-she-said" between she and Defendant and deleting those files which
do not. This conduct alone, is sufficient to justify a forensic examination of Plaintiffs devices so
that Defendant can determine 1) when the video footage taken on the night of February 10, 2012
6
was deleted; 2) whether the footage is recoverable; and 3) whether Plaintiff deleted any other
electronically stored information which was pertinent to her allegations against Defendant.
Next. Plaintiff has exhibited additional bad faith in discovery by failing to produce a
myriad of emails responsive to Defendant's document requests despite Defendant's requests for
supplementation. The court in Ameriwood Industries, Inc., considered a request for forensic
examination where the plaintiff had failed to produce just one responsive email which was later
produced by a third party. 2006 WL 3825291 at *3. In ruling that the defendant was entitled to
a forensic examination, the court explained that the email which the plaintiff had withheld
"raises the question of whether defendants have in fact produced all documents responsive to
plaintiff's discovery request." Id. at *4. As you will see below, the Plaintiff in this case has
failed to produce hundreds of responsive emails, even more clearly necessitating an examination
On May 13. 2014, Defendant requested that Plaintiff produce all communications
(explicitly including electronic communications) between she and Northwestern pertaining to the
allegations in her complaint, regarding or relating to Defendant, and/or containing the terms
"Peter" and/or "Ludlow." See Exhibit H (Defendant's First Set of Document Requests).
Plaintiff initially objected and produced less than forty emails in response to those requests.
Defendant believed Plaintiff's objections were misplaced and was unconvinced that these scant
emails truly represented all of Plaintiff's responsive files. Thus, on July 7, 2014, counsel for
Defendant sent a letter to Plaintiff addressing these and other deficiencies in Plaintiff's
7
responses. Exhibit I (717/14 Letter from Sedey to O'Connor). Subsequent to this letter, Plaintiff
On or around August 6, 2014, counsel for the parties discussed Defendant's concerns
regarding Plaintiffs deficient response and counsel for Plaintiff represented that Plaintiff had
told them she conducted key word searches in her email and turned over any communications
she found as a result. Regardless, Plaintiffs counsel agreed to speak with their client and ask
that she search her computer again to determine if there were any additional entails or documents
After that conversation, Plaintiff produced an additional thirty-nine entails on August 14,
2014 which were responsive to Defendant's original requests, bringing her total email production
to ninety-eight. However, Defendant has since come to learn through responses to third party
subpoenas that Plaintiff sent or received hundreds of additional emails which she has failed to
For example, Plaintiff produced only two email communications between her and
Professor Larry Stuelpnagel pertaining to the matters alleged in her complaint; thus, Defendant
assumed that these were the only responsive email communications between she and Mr.
Stuelpnagel. Northwestern, however, produced more than 100 pages of emails between Mr.
Stuelpnagel and Plaintiff in response to Defendant's third party subpoena. Similarly, Plaintiff
failed to produce any entails at all between she and Professor Nitasha Sharma pertaining to the
matters alleged in her complaint, while Northwestern produced nearly fifty pages of emails
between the two addressing the "assault, - Plaintiff's mental health, and her need for
document requests, which were propounded in May of 2014. Instead, Defendant received the
documents from a third party and, in many cases, months after Defendant had already deposed
deposition.
Either Plaintiff had these communications and chose not to turn them over or she did not
have them which meant that she destroyed relevant evidence. Regardless of which is true,
Plaintiff has violated the rules of discovery, exhibiting significant bad faith. As a result,
determine whether additional responsive emails and other types of files exist and/or whether
Plaintiff has intentionally deleted responsive and relevant electronically stored information.
Conclusion
produce her computer and hand-held electronic devices for forensic examination. Further, given
the bad faith exhibited above, Defendant requests that Plaintiff be responsible for the cost of such
examination. Defendant is happy to work with the parties and/or the court to craft an appropriate
Respectfully submitted,
Peter Ludlow
By:
One of His • to eys
Kristin M. Case
Kate Sedey
Kendra L Kutko
The Case Law Firm, LLC
9
250 South Wacker Dr., Ste. 230
Chicago, Illinois 60606
Telephone: (312) 920-0400
Facsimile: (312) 920-0800
Attorney ID 49223
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