Attorney

123 Main Street

Anytown, US 12345

DISTRICT COURT OF

) Case No.: 123456-123

Joe Smith, )
)
Plaintiff, )
) MOTION TO COMPEL
vs. )
)
ABC Plumbing, Inc, )
)
Defendant )
This motion can be filed by either Plaintiff or Defendant for failure to answer

Discovery.

Pursuant to local rules, Defendant hereby moves the Court be compelled to

respond to Discovery based on the following facts:

1. Discovery was filed on November 15, 2009.

2. The Plaintiff's Responses to Discovery were due no later than December

15, 2009. To date, no Response has been received.

3. A good faith effort has been made to recover the Plaintiff's Responses.

On December 8, 2009, counsel for the Defendant requested in writing to Plaintiff's

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

return call was received.

4. The Plaintiff has refused to provide responses and has not indicated that

he will provide such information.

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

and the issues in No. 07-1620.

9. In discussions with Chicago, Chicago has acknowledged that it has various

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

immediately produce for inspection by Plaintiffs the following categories of documents:

"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.

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 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

groundless objections to Plaintiffs' individual requests. More significantly, they have

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

motion Plaintiffs state as follows.

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

motion is pending before this Court.

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

Darby's First Set of Document Requests to Defendant-Intervenors (Exhibit 1 hereto); Plaintiff

James Darby's First Set of Interrogatories to Defendant-Intervenors (Exhibit 2 hereto) (together,

the "Discovery Requests").

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

motion on February 13, 2013.

7. After the Court's ruling denying any stay, Intervenors served a set of objections to the

Discovery Requests on February 13, 2013. See Intervenors' Objections to Plaintiffs'

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

Intervenors "should not have to comply with discovery requests." Id.

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,

Intervenors "decline[d] to engage in pointless discovery." Id.

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

individual document requests and interrogatories are unsupported.

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

issued no order or ruling that permits Intervenors to refuse to participate.

A. Plaintiffs' Discovery Requests Are Not "Premature."

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.").

B. Discovery Has Not Been Stayed.

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

discovery can take place.").

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

proceedings—including discovery—could continue.

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

Discovery Requests, and the Court should compel them to do so.

II. Intervenors' Specific Objections To Plaintiffs' Discovery Requests Are Meritless.

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

Intervenors must provide a substantive answer.

Interrogatory No. 1

23. Plaintiffs' first interrogatory requests information related to Intervenors' witnesses.

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

Defendant's conduct in objecting to interrogatories as "overbroad . . . vague . . unduly

burdensome . . . [and] harassing . . . without greater particularity was objectionable . . . there is

no evidence whatsoever that [Defendant's] manner of responding to discovery was anything

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

does not apply.").

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

speculative" or constitute undue "annoyance, expense, and oppression," without further

explanation. Objections at 7-8. As explained above, boilerplate objections without any

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

not satisfy Intervenors' duty to provide information that is responsive to Plaintiffs'

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

annoyance, expense, disadvantage and oppression." Objections at 8. As explained above, such

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.").

Document Request Nos. 1 3 -

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

their interrogatory responses by reference. Objections at 9. But again, boilerplate objections

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

reports prepared by the witness about the case.").

Document Request No. 4

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

documents, objects or tangible things . . . or to disclose information calculated to lead to the

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.").

Document Request No. 5

34. Plaintiffs' fifth request seeks documents that Intervenors intend to introduce into

evidence at trial. Intervenors object to Document Request No. 5 by incorporating their

interrogatory responses by reference. Plaintiffs' request is perfectly proper. See Romano v.

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

required Rule 213(i).

CONCLUSION

35. For the foregoing reasons, the Court should order Intervenors to provide substantive

responses to Plaintiffs' Discovery Requests.

Dated: June 25, 2013

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

ATTORNEYS FOR LAZARO PLAINTIFFS

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.

DEFENDANT'S MOTION TO COMPEL PLAINTIFF'S

PRODUCTION OF COMPUTER(S) AND OTHER ELECTRONIC DEVICES

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

On February 10, 2012, Plaintiff, an undergraduate student at Northwestern University

("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.

Ex. A. Defendant adamantly denies these allegations.

 Rule 20100 Efforts

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

from Case to O'Connor).

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

C (1/7/15 Email from O'Connor to Case).

On January 9, 2015, Defendant responded to Plaintiffs conditions, proposing that the

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

later, Plaintiff has failed to respond.

Having exhausted 201(k) efforts, this motion follows:

Legal Standard
Illinois Supreme Court Rule 214 allows a party to "direct any other party to produce for

inspection, copying, reproduction photographing, testing or sampling, including electronically

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

Ill. App. 3d 939, 949 (1st Dist. 1995).

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

inconsistencies," including a failure to produce responsive documents and/or evidence that

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

defendant's admission to spoliating evidence by discarding computer); Koo.sharem Corp. v. Spec

Pers., LLC, 2008 WL 4458864 at *2 (D.S.C.

Sept. 29, 2008) (forensic examination allowed

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

files" based, in part, on defendant's failure to produce documents).

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.

I. Defendant is Entitled to Conduct a Forensic Examination of Plaintiffs

Electronic Devices Where Plaintiff Destroyed Relevant Electronic Evidence.

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

Mgmt., Inc. and Simon Prop. Grp. L.P., supra.

In Genworth. the plaintiff requested a forensic examination of the defendant's computers

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

consciousness of wrongdoing..." 267 F.R.D. at 447-48. Here, Plaintiff admitted to deleting

relevant evidence and acknowledged that she might have done so after she had first considered

litigating claims against Defendant. Thus, Defendant is entitled to a forensic examination.

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

footage. Ex. F, p. 55:4-24.

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.

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 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

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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.

IL Defendant is Entitled to Conduct a Forensic Examination of Plaintiff's

Electronic Devices Where Plaintiff Withheld Documents Responsive to
Defendant's Discovery Requests.

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

of her electronic devices.

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

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responses. Exhibit I (717/14 Letter from Sedey to O'Connor). Subsequent to this letter, Plaintiff

produced an additional twenty responsive entails.

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

which should be produced in response to this request.

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

produce despite their direct responsiveness to Defendant's requests.

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

accommodations as a result of Defendant's alleged misconduct.

 Plaintiff should have produced these documents in response to Defendant's original

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

Plaintiff, significantly prejudicing Defendant's ability to take a complete and thorough

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,

Defendant must be allowed to conduct a forensic examination of Plaintiff's electronic devices to

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

WHEREFORE, Defendant respectfully requests that this Court compel. Plaintiff to

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

and reasonable forensic examination protocol.

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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