The opinion
IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS
David Gevas (B-41175) and Marcia )
Yvonne Gevas, )
Plaintiffs, )
) Case No. 18 C 6556
v. )
) Hon. Sunil R. Harjani
Troy A. Dunlop, et al., )
)
Defendants. )
MEMORANDUM OPINION AND ORDER
This matter comes before the Court on Plaintiffs’ motion for an order compelling discovery
(Dkt. 220) and a corrected motion for an order compelling discovery. (Dkt. 227.) The Court
accepts Plaintiffs’ corrected motion, which adds a sentence omitted from the first motion, and
strikes the original motion. For the following reasons, Plaintiff’s corrected motion to compel
discovery is granted in part and denied in part. Defendants are ordered to serve amended answers
to Plaintiffs’ Interrogatories 1, 2, 5 and 6 and request to admit, as described below, by March 2,
2020.
BACKGROUND
Plaintiffs in this matter, inmate David Gevas and Marcia Gevas, brought this lawsuit
alleging that Defendants retaliated against them in a number of ways because of a previous lawsuit
Plaintiffs filed regarding Stateville Correctional Center’s marriage policies. (See Dkt. 37.)
Presently before the Court is Plaintiffs’ motion for an order compelling Defendants to answer
discovery requests. (Dkt. 277.) Plaintiffs’ motion requests orders compelling responses to two sets
of interrogatories and requests for production, and requests that the Court determine the sufficiency
of Defendants’ answers to requests to admit. Fact discovery closed on January 31, 2020. (Dkt.
147.) Plaintiffs filed their motion on February 6, 2020, six days after that deadline. The Court
will nonetheless consider Plaintiffs’ motion given that the parties’ met and conferred regarding
Plaintiffs’ discovery requests on January 29, 2020, only two days prior to the close of fact
discovery. (See Dkt. 277, pgs. 2-5.)
DISCUSSION
I. Interrogatories
First, Plaintiffs request that this Court order Defendants to more fully answer several of
Plaintiffs’ interrogatories. Fed. R. Civ. P. 33(b)(3) provides that “[e]ach interrogatory must, to the
extent it is not objected to, be answered separately and fully in writing under oath.” The grounds
for any objections “must be stated with specificity.” Fed. R. Civ. P. 33(b)(4). A responding party
must include in its answer all information within its knowledge or control. Hanley v. Como Inn,
Inc., 2003 WL 1989607, at *4 (N.D. Ill. Apr. 28, 2003). Lack of personal knowledge does not
exempt a party from answering to the extent possible, “because [the] duty to fully answer implies
a duty to make reasonable efforts to obtain information within the knowledge and possession of
others.” Jones v. Syntex Laboratories, Inc., 2001 WL 1338987, at *3 (N.D. Ill. Oct. 30, 2001).
A party may move for an order compelling production if a responding party fails to answer
an interrogatory submitted under Rule 33. Fed. R. Civ. P. 37(a)(3)(B)(iv). Where, as is the case
here, a responding party has provided answers to the interrogatories, answers that are evasive or
incomplete are treated as a failure to answer. Fed. R. Civ. P. 37(a)(4).
Plaintiffs challenge the sufficiency of Defendants’ answers to the following interrogatories
sent to Defendants on November 30, 2019:
(1) State the full name of Dr. Orenstein at Stateville Correctional Center Health
Care Unit, including the kind of doctor he is and if he is employed by IDOC or
Wexford Health Sources, Inc.
(2) State the full name and position/title of the individual who created the dental
record attached to Plaintiffs’ interrogatories.
(3) State the full name and position/title of the individual who completed the
medical services refusal form attached to Plaintiffs’ interrogatories.
(4) State the full name and position/title of all individuals who placed the medical
services refusal form in David Gevas’ medical file.
(5) “State in complete detail everything that is handwritten in services rendered for
the dates of 7/30/18, 7/30/18 fu, 8/7/18, and 8/15/18” on the dental record attached
to Plaintiffs’ interrogatories. (Dkt. 227, pgs. 13-14.)
Plaintiff’s also request an order compelling Defendants to answer the following
interrogatory sent to Defendants on December 1, 2019:
(6) State in complete detail the reason W. Brown was removed as the lieutenant at
X house, Stateville Correctional Center in 2018. (Id., pg. 15.)
Defendants answer Interrogatories 1, 3 and 4 by stating that they lack personal knowledge
responsive to the interrogatories. (Dkt. 227, pg. 14.) Plaintiffs have not identified why they believe
such responses to be incomplete or evasive. Interrogatories require the responding party to answer
to the extent it has knowledge or can readily ascertain such knowledge. Gingerich v. City of Elkhart
Probation Dept., 273 F.R.D. 532, 541 (N.D. Ind. 2011). With regard to Interrogatory 3,
Defendants’ answer is sufficient given that no information appears on the medical services refusal
form, such as a signature, that would indicate the identity of the form’s author. (See Dkt. 227, pg.
8.) Likewise, the form provides no clues as to who placed it in David Gevas’ files. Plaintiffs offer
no reason to suspect Defendants’ response that they lack the knowledge necessary to answer these
interrogatories is anything less than truthful. Plaintiffs’ motion is denied with respect to
Interrogatories 3 and 4.
However, Defendants’ answer that they lack the knowledge sufficient to identify whether
Dr. Orenstein is employed by IDOC or Wexford and, if so, his full name and title, is not a sufficient
answer to Interrogatory 1. It is implausible to suggest that IDOC and Wexford are unaware of
who they employ and, as employees of Wexford and an Illinois Department of Corrections facility,
there is no reason why Defendants cannot determine this information with little difficulty. In
addition, this information is within the scope of discoverable information in this lawsuit. The form
in question shows that a Dr. Orenstein explained the risks of refusing treatment to David Gevas,
while Plaintiffs contend David Gevas did not refuse treatment at all, but rather Defendants
prevented him from attending his dentist appointment. Defendants, therefore, are ordered to
conduct a reasonable inquiry as to whether Dr. Orenstein is an employee of Wexford or IDOC.
By the above date, Defendants shall amend their answer to Interrogatory 1 to provide that
information, and, if Dr. Orenstein is an employee of IDOC or Wexford, his first name and type of
doctor that he is.
With regard to Interrogatories 2 and 5, Defendants object because they “are not
medical/dental professionals and are therefore not qualified to interpret Plaintiff’s dental records”
but answer, without waiving objections, that it appears Dr. Orenstein created the records in
question. (Dkt. 227, pg. 14-15.) Defendants’ objections misinterpret both interrogatories. In
Interrogatory 2, Plaintiffs request only the identity of the person who created the record, including
the sections entitled “services rendered” and “D.D.S. signature,” not an interpretation of the
contents of the record. Interrogatory 5 asks Defendants, in essence, to transcribe the handwritten
notes on David Gevas’ dental record. Neither interrogatory requires the specialized knowledge of
a medical or dental professional to answer. Moreover, Defendants are in a better position than
Plaintiffs to provide the information requested given that the records were likely created by IDOC
or Wexford employees. The Court overrules Defendants’ objections. Defendants, therefore, must
conduct the reasonable inquiry necessary to answer Plaintiffs’ Interrogatories 2 and 5 and amend
their answers by the date above.
Lastly, Defendants object to Interrogatory 6 as seeking information not relevant to any
claim or defense in this litigation. (Dkt. 227, pg. 15.) Parties may “obtain discovery regarding any
nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs
of the case.” Fed. R. Civ. P. 26(b)(1). Evidence is relevant if “it has any tendency to make a fact
more or less probable than it would be without the evidence” and “the fact is of consequence in
determining the action.” Fed. R. Evid. 401. Here, Plaintiffs’ amended complaint alleges Brown
improperly attended David Gevas’ January 23, 2018 disciplinary hearing, directed other
Defendants to discontinue David Gevas’ medical lay-in, ransacked David Gevas’ cell on several
occasions, did not allow David Gevas to attend a dental appointment, and failed to inform David
Gevas of his prison visits. (See Dkt. 37.) Thus, the reason for Brown’s removal may be relevant
to Plaintiffs’ claims given that it is plausible that one of the reasons that Brown was removed was
because of his alleged actions on Plaintiff, but Plaintiff won’t know that until he gets an answer to
this interrogatory. Discovery, while limited by relevancy and proportionality concerns, must still
allow a party to make reasonable inquiries in order to develop evidence that supports his claim or
defense. Moreover, this interrogatory can easily be answered without any excessive burden on the
Defendants, and thus is not disproportionate to the needs of this case. The Court, therefore, directs
Defendants to answer Interrogatory 6 by the above date.
II. Request to Produce Documents
Next, Plaintiffs ask the Court to compel Defendants to produce records responsive to their
December 1, 2019 request to produce Plaintiff David Gevas’ medical records. (Dkt. 227, pgs. 3-
4.) Where a party fails to produce documents requested under Fed. R. Civ. P. 34, the requestor
may move for an order compelling production of the records. Fed. R. Civ. P. 37(a)(3)(B)(iv).
Specifically, Plaintiffs request that Defendants produce all medical records in David
Gevas’ IDOC medical file pertaining to (1) his April 2018 surgery on his right clavicle and the
resulting infection, including all medical records from April 1, 2018 to October 30, 2018, and all
instructions from his orthopedist following the surgery; and (2) any evaluation or examination
conducted by Stateville medical staff regarding the discontinuance of his medical lay-in on May
4, 2018. (Dkt. 227, pgs. 15-16.)
Defendants object that both requests are overly broad, seek documentation already in
Plaintiff’s possession, and seek records not relevant to any claim or defense at issue in this
litigation. (Dkt. 227, pg. 15.) In response to Plaintiffs’ requests, Defendants identify and refer
Plaintiffs to what appear to be 5,225 pages of records produced in one of Plaintiff David Gevas’
other cases. (Id.) Plaintiffs, in turn, argue they should not have to obtain the records from David
Gevas’ attorney in his other case and that using records produced in another case would cause
confusion in the present matter because the records would include bates stamps referencing David
Gevas’ other case. (Dkt. 227, pg. 4.)
As an initial matter, the Court fails to see how Plaintiffs’ requests are overly broad or
irrelevant. Plaintiffs’ requests are narrow in scope and plainly relevant to their claims regarding
the discontinuance of David Gevas’ lay-in period on May 4, 2018. (See Dkt. 37, pg. 9.)
Consequently, the Court can only conclude that Defendants have employed boilerplate objections
in answering Plaintiffs’ requests. Such objections do not satisfy Fed. R. Civ. P. 34(b)(2)(C)’s
requirements and are “tantamount to not making any objection at all.” BankDirect Capital
Finance, LLC v. Capital Premium Financing, Inc., 2017 WL 5890923, at *2 (N.D. Ill. Nov. 29,
2017) (quoting RealPage, Inc. v. Enter. Risk Control, LLC, 2017 WL 1165688, at *3 (E.D. Tex.
2017)).
Defendants’ remaining objection—that the records are already in Plaintiffs’ possession—
however, does hold water. Under Fed. R. Civ. P. 26(b)(2)(C)(i), the Court “must limit the . . .
extent of discovery otherwise allowed by these rules or by local rule if it determines that . . . the
discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other
source that is more convenient, less burdensome, or less expensive.”
Plaintiffs offer no explanation for why they would be unable to obtain the medical records
from David Gevas’ attorney in case no. 1:16-cv-10599. They merely state that they should not
have to. Case no. 1:16-cv-10599 is ongoing and David Gevas continues to be represented by
counsel in that lawsuit. There appears to be no barrier to Plaintiffs’ obtaining the medical records
Defendants state are responsive to the requests to produce from their attorney in that case.
Ordering Defendants to produce the medical records here would be duplicative and Plaintiffs can
obtain the records from a more convenient source. With regard to Plaintiff’s concern that the bates
stamps on the records will cause confusion if introduced in the present case, the Court notes that
bates stamps are easily redacted and it is unlikely the stamps will produce undue confusion. As
Plaintiffs are already in possession of the requested records through their agent in case no. 1:16-
cv-10599, Defendants will not be compelled to produce them again in response to Plaintiffs’
requests here.
III. Request to Admit
Lastly, Plaintiffs move to determine the sufficiency of Defendants’ answer and objection
to Plaintiffs’ December 13, 2019 request to admit. (Dkt. 227, pg. 5.) Under Fed. R. Civ. P. 36(a),
a party may serve on any other party a written request for the admission of the truth of matters
relating to statements or opinions of fact or the application of law to fact. Requests for admission
are not discovery devices but, rather, “are used to establish the truth or genuineness of a matter in
order to eliminate the need to prove the matter at trial or to limit the triable issues of fact.” Taborn
v. Unknown Officers, No. 00C652, 2001 WL 138909, at *1 (N.D.Ill. Feb. 16, 2001). The
answering party must admit, deny, or “set forth in detail the reasons why the answering party
cannot truthfully admit or deny the matter.” Fed. R. Civ. P. 36(a).
Plaintiffs requested that Defendants admit or deny the genuineness of an affidavit signed
by Stateville officer Christopher Ross on September 23, 2019. (Id., pg. 19.) The affidavit appears
to have been submitted in yet another of Plaintiff David Gevas’ cases, no. 1:18-cv-4984, and
describes the typical process for creating a shakedown slip and Ross’ search of Stateville
Correctional Center’s records for shakedown slips pertaining to David Gevas. (Id., pg. 9.)
Defendants object to this request to admit “as an improper use of Rule 36,” though Defendants do
not explain why they believe this to be so. (Id., pg. 19.) Defendants also object because the
affidavit was executed and produced in a separate matter and the Defendants in the present case
did not author or execute the affidavit. Defendants, therefore, state they lack the knowledge to
admit or deny the genuineness of the affidavit. (Id.) Notwithstanding their objections, Defendants
answer that the affidavit is a self-authenticating document. (Id.)
Defendants’ objections are not compelling. First, the Court cannot comprehend why
Defendants believe Plaintiffs’ request to admit to be improper under Rule 36. The Court can only
surmise that Defendants believe the request is improper either because it requests the
authentication of a self-authenticating document or because the document was created by a third-
party. Neither reason makes the request improper.
The Court has reviewed the affidavit included with Plaintiffs’ motion. (Dkt. 227, pg. 9.)
While the document may be self-authenticating under Fed. R. Evid. 902(8), it is ultimately
unknown how the trial court will rule on the admissibility of the affidavit. A party may hedge his
bets by securing authentication through more than one avenue; Federal Rule of Evidence 901(a) is
not particular as to what serves to authenticate a document. See In re Peregrine Financial Group
Customer Litigation, 2015 WL 1344466, at *8 (N.D.Ill. Mar. 20, 2015) (citing John Paul Mitchell
Sys. V. Quality King Dist., Inc., 106 F. Supp. 2d 462, 471 (S.D.N.Y. 2000). Requests to admit the
genuineness of documents are specifically contemplated by Rule 36(a)(1)(B) and serve the purpose
of eliminating the need to later establish the foundation to admit the records into evidence. Id. The
Federal Rules of Civil Procedure require that parties will, in good faith, admit the genuineness of
documents when so requested in order to streamline later proceedings. Oakley v. McCabe, 2007
WL 2752175, at *1 (S.D. Ill. Sept. 21, 2007).
Defendant’s objection that the document was created by a third party and produced in
another case is also not convincing. An answering party may not rely solely on its lack of personal
knowledge when responding to requests to admit. Loudermilk v. Best Pallet Co., LLC, 2009 WL
3272429, at *1 (N.D. Ill. 2009). Consequently, a party may be required to contact third persons
who are readily available, such as the party’s “officers, administrators, agents, employees,
servants, enlisted or other personnel, who conceivably, but in realistic terms, may have information
which may lead to or furnish the necessary and appropriate response.” Taborn v. Unknown
Officers, 2001 WL 138908, at *1 (N.D. Ill. Feb. 16, 2001) (quoting T. Rowe Price Small-Cap
Fund, Inc. v. Oppenheimer & Co., 174 F.R.D. 38, 42 (S.D.N.Y. 1997); see also Fed. R. Civ. P.
36(a) Advisory Committee Notes (1970) (“The revised rule requires only that the answering party
make reasonable inquiry and secure such knowledge and information as are readily obtainable by
him. In most instances, the investigation will be necessary either to his own case or to preparation
for rebuttal. Even when not, the information may be close enough at hand to be ‘readily
obtainable.’”). Whether an inquiry is reasonable depends on the facts of the case. Hanley v. Como
Inn,Inc., 2003 WL 1989607, at *2 (N.D. Ill. Apr. 28, 2003).
Here, no extraordinary effort or expense was required to conduct a reasonable inquiry into
the genuineness of the affidavit. Defendants in this case and in case no. 1:18-cv-4984 are both
represented by attorneys from the Illinois Attorney General’s Office, who appear to work on the
same floor of the same office building. It would not have been unduly burdensome for defense
counsel in this case to have phoned, emailed, or walked to the office of the attorney in case no.
1:18-cv-4984 to investigate the authenticity of the affidavit in question. Moreover, it would appear
that the affiant is employed by Stateville Correctional Center and he is, therefore, within the control
of Defendants’ employer. Given that the information necessary to answer the request to admit was
readily available and that defense counsel appears to have conducted no inquiry whatsoever,
Defendants’ answer is inadequate.
Under Rule 36, a party’s options in responding to requests to admit are to admit, deny, or
object. Fed. R. Civ. P. 36(a)(4), (5). A party may assert lack of knowledge as a reason for failing
to admit or deny only after conducting a reasonable inquiry to attempt to answer the request. Id.
The Court overrules Defendants objections and finds that their answer that the affidavit in question
is self-authenticating is not responsive to Plaintiffs’ request to admit the genuineness of the
document. Consequently, Defendants must conduct a reasonable inquiry and amend their answer
accordingly by the above date.
CONCLUSION
For the foregoing reasons, Plaintiffs’ discovery motion is granted in part and denied in
part. Defendants amended responses to Plaintiffs’ Interrogatories 1, 2, 5, and 6, and answers to
Plaintiffs’ request to admit are due by March 2, 2020.
SO ORDERED.
Dated: February 19, 2020 fuk
Sunil R. Harjani
United States Magistrate Judge
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