The opinion
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
Marwan Dib, M.D. )
Plaintiff, )
)
v. ) Case No. 21-1339
)
Quincy Physicians & Surgeons Clinic, S.C. )
Defendant )
ORDER
Before the Court is plaintiff’s motion to compel discovery [14].
Plaintiff, a physician, brought this diversity action against his former employer.
Plaintiff claims defendant breached the employment agreement by paying him less than
the amount required under the contract. Plaintiff also pleaded a claim under the Illinois
Wage Payment and Collection Act. 820 ILCS 115/1 et seq. The written employment
agreement required defendant to pay plaintiff:
the greater of (i) an annual salary of Seven Hundred Fifty Thousand
and 00/100 Dollars ($750,000) or (ii) the amount the Employee would
have earned under the Employer’s income distribution formula
(compensation plan) for its shareholders, as if Employee was a
shareholder of Employer
The agreement further provided, “Such compensation shall be payable in the
manner determined by the Board of Directors of the Employer. The agreement covered
a period beginning January 1, 2020. In both January and February 2020 plaintiff was
paid $62,500. In March 2020, plaintiff received an email from defendant reading:
As an associate physician at Quincy Medical Group, you have a
guaranteed annual salary per your contract. That salary remains in
place for 2020. However, due to estimated reduced productivity and
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cash flow resulting from the current Covid-19 situation, your monthly
draw will be reduced by 50% effective with the March 31st payroll.
This is temporary and your draw will be restored to a level greater than
normal as soon as possible in order to meet your contract for the year.
In March, April, May, and June 2020 plaintiff was paid less than $62, 500. In May
2020 plaintiff provided a 60-day notice of his resignation. Plaintiff claims he was paid a
total of $93,750 less than he was entitled to receive under the contract. Defendant
contends that, after adjustments for such things as recoupment of an unearned signing
bonus, plaintiff was paid all monies due under the contract.
Plaintiff claims defendant has not adequately responded to certain discovery
requests. Plaintiff seeks to compel responses to interrogatories 9, 23, and 24. Plaintiff
also asks the Court to compel responses to requests to produce 8, 9, 10, 11, 13, 14, 17,
22, 23, and 27. Defendant claims plaintiff’s motion should be denied because plaintiff
failed to attach a certification that plaintiff’s counsel conferred, or attempted to confer, with
defense counsel to resolve discovery disputes. Defendant does not dispute that the
motion to compel outlines email and telephonic communications to attempt to resolve
discovery disputes and contains the statement that plaintiff has in good faith attempted to
confer with defendant to resolve disputes. Plaintiff asserts Rule 37 requires a separate
certification must be attached to the motion. Rule 37 contains no such requirement.
Instead, it provides, “the motion must include a certification ….” Plaintiff has signed the
motion to compel. Under Rule 11 of the Federal Rules of Civil Procedure, the signature
is a certification that the factual statements have evidentiary support. The Court finds
plaintiff has complied with the certification requirement of Rule 37.
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Defendant’s response to plaintiff’s interrogatories contains a section entitled
“general objections.” The first two of the “general objections” simply state defendant’s
opinion on whether defendant has waived objections by answering the interrogatories.
The third “general objection” is that defendant objects to the interrogatories to “the extent
they purport to impose requirements beyond those imposed by the Federal Rules of Civil
Procedure.” Defendant’s fourth “general objection” is that defendant objects to the
interrogatories insofar as they request information subject to the attorney/client privilege,
the work-product privilege, or any other applicable privilege. Defendants “general
objections” include a statement that these objections are applicable to every one of the
interrogatories.
Defendant’s general objections are overruled. Rule 33(b)(4) of the Federal Rules
of Civil Procedure provides “The grounds for objecting to an interrogatory must be stated
with specificity.” It is impossible to tell the basis for these objections as applied to the
specific interrogatories. For example, it does not appear that defendant has a good faith
basis to assert attorney/client privilege as to every interrogatory. Defendant has, however,
made that objection. To the extent defendant has withheld information from the
interrogatory answers based on the general objections, defendant must supplement the
answers.
Interrogatory 9 asks defendant to identify and provide additional information about
all “physician-employees” whose compensation agreements were modified by defendant.
Defendant objected to the interrogatory on several bases, including an assertion that the
information is not relevant to the issues in this case. In addition, defendant claimed it had
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not modified any compensation agreements. Interrogatories 23 and 24 seek information
about other employees whose draw was either “restored to a greater level than normal”
or was not restored to a greater level. Defendant also objected to the relevance of the
information sought in these interrogatories.
In moving to compel, plaintiff ignores the fact defendant has no information
responsive to interrogatory 9. Plaintiff contends the information sought in these
interrogatories is “highly relevant” because treatment of other employees could impact
the defense. Plaintiff does not explain how it could impact the defense. In responding to
the motion to compel, defendant notes the issues in this case under both the breach of
contract claim and the Wage Payment and Collection Act claim are very limited. Those
issues are (1) how much was owed to plaintiff under the contract and (2) how much was
paid to plaintiff? Unless there is ambiguity in the contract, which plaintiff does not claim,
extrinsic evidence on the meaning of the contract is not admissible. Barwin v. Village of
Oak Park, 54 F.4th 443, 464 (7th Cir. 2022). Defendant has raised affirmative defenses
of accord and satisfaction and failure to file within the statute of limitations for the Wage
Payment and Collection Act. Information about other employees has no bearing on either
of these defenses.
Under Rule 26(b)(1) of the Federal Rules of Civil Procedure, information need not
be admissible to be discoverable. To be discoverable, however, the information needs
to be relevant to a “party’s claim or defense.” The scope of discovery is, therefore, tied
to the issues raised by the parties in their pleadings. Defendant’s treatment of other
employees has no bearing on the narrow issues raised by the pleadings in this case.
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Plaintiff has simply made the conclusory allegation of relevance, but has not explained
how the treatment of other employees has any bearing on either the breach of contract
claim, or the Wage Payment and Collection Act claim. Plaintiff’s motion to compel
responses to interrogatories 9, 23, and 24 is denied.
In responding to requests to produce, defendant made similar “general objections”
to those raised in responding to interrogatories. Rule 34(b)(2)(B) of the Federal Rules of
Civil Procedure requires, for each item or category of material sought, the response must
either state that inspection will be permitted “or state with specificity the grounds for
objecting to the request, including the reasons.” Defendant’s general objections are
overruled.
Request to produce 8 seeks all documents related to any proposed or actual
modification to the employment contract between plaintiff and defendant. Defendant
objected to the request as containing a legal conclusion that renders the request vague
and ambiguous. Defendant’s objection is overruled. Defendant further responded by
stating it has no documents because the contract was not modified. While defendant
states it has no documents because the agreement was not modified, plaintiff contends
this response does not address the request for documents related to proposed
modifications. Defendant is to provide any documents it has related to proposals to
modify the employment agreement.
Requests to produce 9, 10, 11, 17, and 23 seek to discover information about the
treatment of other employees. For the reasons stated regarding plaintiff’s interrogatories,
defendant’s relevance objections are sustained.
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Requests to produce 13 and 14 seek information regarding any estimated and
actual “reduced productivity and cash flow” as stated in the March 25, 2020, memo
reflecting a reduction in plaintiff’s monthly draw. Defendant objected that the request was
overbroad, sought information not relevant to the dispute, and sought proprietary
information. In responding to the motion to compel, defendant does not rely on the
assertion regarding seeking proprietary information and only argues the information is not
relevant. Plaintiff’s argument on the issue of relevance is “[i]t is difficult to discern how
this information is not relevant given the purported basis given by QMG to support its
reduction in Dr. Dib’s pay was ‘estimated reduced productivity and cash flow.’” Defendant
argues the sole issue in this case is whether plaintiff was paid the money due under the
contract. The correctness of defendant’s estimation of reduced cash flow is, according to
defendant, not an issue in the case. Plaintiff has failed to explain how the information
sought has any bearing on the issues to be resolved in this case. Discovery into matters
having no bearing on the issues to be decided only serves to increase the costs of
litigation. Defendant’s relevance objection is sustained.
Request to produce 22 seeks all internal communications relating to the
modification of plaintiff’s compensation or any amounts owed plaintiff. Defendant
objected to the request on the ground the term “modification” is ambiguous, but answered
the request, stating it has no responsive documents because plaintiff’s compensation was
not modified. Plaintiff claims defendants were not truthful in denying there was a reduction
in plaintiff’s compensation, because it is undisputed plaintiff’s monthly draw was reduced.
When the request to produce was drafted, plaintiff was aware of defendant’s position that
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the contract only required payment of an annual salary and left the amount of any monthly
draw to the discretion of defendant. Defendant further contends plaintiff was paid the
portion of his annual salary due under the contract. Whether these positions are correct
or not will not be decided by the Court on a motion to compel. Defendant responded to
the request to produce. Plaintiff’s objection to defendant’s legal position is not a basis for
compelling a different response. While the motion to compel a response to request 22 is
denied, because at the time the motion to compel was filed the scheduling order would
have permitted plaintiff to submit additional requests to produce, plaintiff is granted leave
to rephrase request 22 and serve it on defendant within 21 days of this order.
Request 27 asked for copies of “all documents, including meeting notices and
notes, as well of consent related documents of the Board of Directors for [d]efendant (the
‘Board’), that relate to any reduction in employee compensation during the year 2020
[sic].” Defendants objected to the request as overbroad and not tailored to lead to
admissible evidence. Defendant also cites to its general objections. Defendant further
states it has no responsive documents. Defendant’s general objections are overruled. If
defendant withheld production of documents based on the general objections, defendant
must produce the documents. If no documents were withheld, defendant should so state.
Although defendant stated it has no responsive documents, in attempting to
resolve discovery disputes, it produced some documents. The documents produced have
redactions. Plaintiff claims defendant should have produced a privilege log if redactions
were made based on portions of the documents being privileged. Defendant asserts
portions of the documents that are not responsive to plaintiff’s request were redacted.
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While plaintiff objects to defendant unilaterally deciding what material is relevant to the
request, the Court has no bases for finding the redacted material to be relevant to
plaintiff’s request. Neither party has asked the Court to conduct an in camera review of
unredacted versions of the documents. It is unclear whether defendant also made
redactions of relevant documents based on attorney client privilege. Defendant has,
however, offered to provide a privilege log. If documents were redacted, or withheld,
based on a claim of privilege, defendant is to provide a privilege log.
Defendant asks to be awarded its costs and attorney fees incurred in bringing th
motion to compel. Rule 37 of the Federal Rules of Civil Procedure provides a party
bringing a successful motion to compel is entitled to recover its costs unless the motion
was filed before attempting a good faith effort to resolve differences; the nondisclosure,
response, or objection was substantially justified; or the circumstances make an award
unjust. Similarly, if a motion to compel is denied, the court is to require the movant to pay
the responding party’s costs and fees unless the motion was substantially justified or
other circumstances make the award unjust. In the present case, plaintiff’s motion was
allowed in part and denied in part. Under the circumstances an award of fees and costs
to either party would be unjust.
In summary, plaintiff’s motion to compel [14] is allowed in part and denied in part.
To the extent otherwise discoverable documents or information were withheld from the
disputed interrogatories and requests to produce based on defendant’s general
objections, defendant is ordered to provide the documents or information withheld based
on these objections within 21 days. Defendant is to provide, within 21 days, any
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documents it possesses responsive to request to produce 8 relating to proposed
modifications of the employment contract between plaintiff and defendant. Defendant is
to provide, within 21 days, a privilege log regarding any redactions to the documents
produced pursuant to request to produce 27 based on a claim of privilege. The motion to
compel is otherwise denied. Plaintiff is granted leave to serve defendant with a revised
request to produce 22 within 21 days.
KAREN L. MCNAUGHT, United States Magistrate Judge:
ENTERED __2_5_, 2022.
s/ Karen L. McNaught
________________________________
KAREN L. MCNAUGHT
UNITED STATES MAGISTRATE JUDGE
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