Opinion

Pistolis v. JF Electric

Court: District Court, S.D. Illinois
Filed: Jun 15, 2022
Cited by: 0 cases
Authority: More cited than 21.3%

“In civil litigation only trade secrets, information covered by a recognized privilege (such as the attorney-client privilege), and information required by statute to be maintained in confidence (such as the name of a minor victim of a sexual assault

How later courts described this case

“In civil litigation only trade secrets, information covered by a recognized privilege (such as the attorney-client privilege), and information required by statute to be maintained in confidence (such as the name of a minor victim of a sexual assault
reminding courts to “construe pro se complaints liberally and hold them to a less stringent standard than formal pleadings drafted by lawyers”
“[M]otions to reconsider exist to spare parties and courts unnecessary appeals.”

Written by the judges who cited it.

The opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

LOUIS PISTOLIS, )

)

Plaintiff, )

)

vs. ) Case No. 3:19 -CV-001185 -MAB

)

AMEREN, )

)

Defendant. )

)

LOUIS PISTOLIS, )

)

Plaintiff, ) Case No. 3:19-CV-001182-MAB

)

VS. )

)

J.F. ELECTRIC )

)

Defendant. )

)

MEMORANDUM AND ORDER

BEATTY, Magistrate Judge:

This matter is before the Court on a series of motions. The first is Defendants J.F.

Electric and Ameren’s Motion for Protective Order regarding Plaintiff’s Fourth and Fifth

Request for Admissions and Fourth Request for Production to J.F. Electric, which was

filed on April 21, 2022 (Doc. 111). The second is Plaintiff’s Motion to Deny Defendants’

Protective Order (Doc. 112), filed on April 25, 2022, which the Court interprets as a

response to Defendants’ April 21st motion. The third is Plaintiff’s Motion for

Clarification, filed on April 27, 2022 (Doc. 114). The fourth is Plaintiff’s Amended Motion

to Deny Defendants’ Protective Order (Doc. 116), filed on May 2, 2022 and the final

motion is Plaintiff’s Rule 60 Relief Motion from a Judgment or Order (Doc. 117), filed on

May 2, 2022.

For the reasons set forth below, Defendants’ motion for protective order is

GRANTED IN PART and DENIED IN PART (Doc. 111). Plaintiff’s motions to deny are

simply responses in opposition (Docs. 112, 116) and are rendered MOOT based on the

Court’s rulings in this Order. Plaintiff’s motion for clarification is GRANTED and the

Court will provide clarification below (Doc. 114). Finally, Plaintiff’s Rule 60 motion is

DENIED (Doc. 117).

PROCEDURAL BACKGROUND

The Court finds it necessary to quickly summarize the pertinent procedural

background that led to this series of motions, some of which were touched upon at an

April 2022 Discovery Dispute hearing.

The parties in this matter have been working through a series of discovery

disputes for approximately six months. The parties first requested an extension of time

for the discovery and dispositive motion deadlines on December 21, 2021 (Doc. 80), which

was granted on December 27, 2021 (Doc. 81). The new deadlines were subsequently

extended from the beginning of January 2022 to the end of the month (Doc. 81). In

January, though, the Court was notified of a discovery dispute. However, the parties had

submitted competing statements to the Court rather than a joint statement, which is what

the Court requires to begin the process of seeking Court intervention on a discovery

matter. See Case Management Procedures, Judge Mark A. Beatty, UNITED STATES DISTRICT

COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS, available at

https://www.ilsd.uscourts.gov/documents/Beatty.pdf (last visited June 14, 2022).

Accordingly, the Court directed the parties to work together to submit one joint statement

(including just one copy of the specific discovery in dispute) so that the Court could

properly, and expeditiously, address those issues (Doc. 87). A discovery dispute

conference was held on February 8, 2022 (Doc. 88). At this hearing, the Court spent nearly

two hours working through written discovery issues with the parties (Id.). The Court

encouraged the parties to consider the rulings the Court made on the record and whether

these rulings can be applied to other discovery disputes (Id.). At that time, the parties had

a settlement conference scheduled the following week with Judge Sison so the Court

stayed both the dispositive motion and discovery deadlines, and indicated they would

be reset if the parties failed to reach a settlement with Judge Sison (Id.).

The case did not settle and so the Court then held a status conference with the

parties on March 28, 2022, to discuss how to resolve the remaining discovery disputes

between the parties (Doc. 108). The Court directed the parties to prepare a joint statement

of the still-outstanding discovery issues (Doc. 107).

On April 26, 2022, the Court held a discovery dispute conference. During this

hearing, the parties briefly discussed Defendants’ motion for protective order, which was

filed just five days before the hearing, and Plaintiff’s response, filed one day before the

hearing (Docs. 111, 112). Ultimately, the Court ruled on a few items during the hearing,

which were recorded in the minute entry entered the same day (Doc. 113). The Court

ruled as follows:

A. The Defendant's objections as to J.F. Electric Inc.'s Answers to Plaintiff's

First Set of Interrogatories Inc are ruled on as follows:

i. Objection to Interrogatory 9 OVERRULED. Defendants are

ordered to supplement regarding policies and procedures

that govern reduction in force;

ii. Objection to Interrogatory 16 is tabled, however the Court

provides its tentative thoughts on the record. An order as to

this issue to follow.

B. The Defendant's objection to Plaintiff's Second Request for Production

as to J.F. Electric Inc. are ruled on as follows:

i. Objection to request #5 of is OVERRULED. The Defendant is

ordered to supplement with the WPA violations and any

disciplinary actions as a result of WPA violations from

January 5, 2015 through December 31, 2018.

ii. Defendant has answered Request #10; if Plaintiff believes this

answer warrants a motion, he can file a motion.

C. Defendant's objections to Ameren's Responses to Plaintiff's Second

Request for Production is as follows:

i. Objection to request #5 has been tabled, however Court

provides tentative thoughts. An order as to this issue to

follow. The Court will conduct an in-camera review of the

documents at issue that Defendant has redacted. The Court

will review example documents from each of the two

predetermined buckets. Plaintiff is to provide the selected

examples to Defendant in writing. Defendant will then

submit the redacted and unredacted versions to the Court by

May 6, 2022.

(Doc. 113).

On April 27, 2022, Plaintiff filed his motion to clarify, detailing that he could not

remember the Court’s ruling on a particular issue and would like more of an explanation

(Doc. 114). Soon after, on April 29, 2022, the Court entered an Order that addressed the

outstanding discovery issues tabled during the hearing. The Court ruled as follows:

ORDER: On April 26, 2022, the Court tabled a ruling on one interrogatory

directed at JF Electric and one request for production directed at Ameren.

The Court now rules as follows. As to JF Electric's answer and supplemental

answer to Interrogatory 16, the Court finds JF Electric's answer and

supplemental answer to be sufficient. JF Electric has not lodged an objection

and has answered and supplemented its answer and has complied with its

obligation. As to Defendant Ameren's objection to RFP 5, Ameren's

objection is sustained. The request is not relevant or proportional to the

needs of the case for the reasons the Court outlined on the record on April

26. The plaintiff was an employee of JF Electric at all times relevant to this

case. The Court ordered JF Electric to provide supplemental documents

regarding comparator evidence. However, this similar request, directed at

Ameren, which was not his employer is not relevant on the topic of

comparator evidence.

(Doc. 115).

On May 2, 2022, Plaintiff, without requesting leave of the Court, filed an amended

motion to deny Defendants’ protective order (Doc. 116). The same day, Plaintiff filed a

motion “on order requesting comparator evidence,” in which Plaintiff requests the Court

to reconsider part of its April 29, 2022 Order (Doc. 117). Defendants filed a response in

opposition to this motion on May 16, 2022, and Plaintiff filed a reply on May 22, 2022

(Docs. 118, 119).

DISCUSSION

Presently before the Court are a total of five motions, all filed within a span of

about two weeks. The Court will address each in turn.

I. Defendants’ Motion for Protective Order

The first of the five motions is Defendants’ joint motion for protective order, which

was filed on April 21, 2022 (Doc. 111). In this motion, Defendants detail that certain

discovery requests, made by Plaintiff, are improper for a variety of reasons (Id.). As a

result, Defendants request Court intervention in the form of a protective order that would

strike these improper requests for admissions and production, relieving Defendants of

the responsibility to respond.

Plaintiff filed two motions to deny in response to Defendants’ motion. The first

was filed on April 25, 2022 (Doc. 112) and the second, which Plaintiff detailed as an

“amended motion,” was filed on May 2, 2022 (Doc. 116). Plaintiff did not request leave to

file his amended motion. Nevertheless, a review of the amended motion reveals that

Plaintiff removed the “bold” font setting in certain portions of the motion (and simply

used regular, non-bold font) and beginning on page 12 underlined the new or amended

portion of the brief. Plaintiff argues that he has provided Defendants with discovery

requests without anyone having to “pull teeth,” and expects the same prompt

cooperation in return (Doc. 116, p. 2). Furthermore, Plaintiff argues that the discovery

provided by Defendants is overly redacted and unhelpful (Id. at pp. 2-3). Finally, Plaintiff

states that this motion for protective order is further proof that Defendants are not

engaging with Plaintiff in good faith, as they did not meet and confer with Plaintiff prior

to filing this motion. Ultimately, Plaintiff argues, this is a tactic, or tool, used to intimidate

him and put him at a further disadvantage as a pro se litigant.

The Court has wide discretion in settling discovery disputes, determining the

scope of discovery, and otherwise controlling the manner of discovery. See, e.g., Thermal

Design, Inc. v. American Soc’y of Heating, Refrigerating and Air-Conditioning Engrs., Inc., 755

F.3d 832, 839 (7th Cir. 2014) (citation and quotations omitted). It follows that a district

court has discretion in deciding when a protective order is appropriate during discovery

and the degree of protection required. Jannx Med. Sys., Inc. v. Methodist Hosps., Inc., No.

2:08-CV-286-PRC, 2010 WL 4789275, at *5 (N.D. Ind. Nov. 17, 2010) (internal citation

omitted). Under Rule 26(c), a court may enter a protective order for good cause shown to

protect a party from annoyance, oppression, undue burden, or expense. SmartSignal Corp.

v. Expert Microsystems, Inc., No. 02 C 7682, 2006 WL 1343647, at *2 (N.D. Ill. May 12, 2006),

citing FED. R. CIV. P. 26(c).

There were a number of considerations the undersigned took into account in

deciding the motions at issue. Plaintiff frequently argues that, as a pro se litigant, he is at

a disadvantage in these proceedings. The Court is keenly aware that Plaintiff is litigating

this case pro se and does not have formal legal training. In fact, the Court has outlined in

prior orders that the pleading standards for pro se litigants is considerably relaxed, for

example. See Doc. 41, (citing Luevano v. Wal-Mart Stores, Inc., 722 F.3d 1014, 1027 (7th Cir.

2013)); Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (even in

the wake of Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929

(2007), and Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)); Arnett v.

Webster, 658 F.3d at 751 (7th Cir. 2011) (reminding courts to “construe pro se complaints

liberally and hold them to a less stringent standard than formal pleadings drafted by

lawyers”); Swanson v. Citibank, N.A., 614 F.3d 400, 404 (7th Cir.2010) (explaining

after Iqbal that the plaintiff need only “give enough details about the subject-matter of the

case to present a story that holds together”). If the prior orders were not clear, the Court

emphasizes here, once again, that “[t]he accessibility of the courts to those who cannot

afford counsel is too important a value to be sacrificed for the needless exaction of harsh

penalties for isolated and minor mistakes.” Sanders v. Melvin, 25 F.4th 475, 483 (7th Cir.

2022) (quoting Childs v. Duckworth, 705 F.2d 915, 922 (7th Cir. 1983)). The Court takes its

duty to “insure[sic] that the claims of a pro se [litigant] are given a ‘fair and meaningful

consideration,’” very seriously. Id.1 It is because of this duty, and the undersigned’s

desire to not foreclose the district court to pro se litigants, that the Court undertook a line-

by-line analyses of his amended pleadings, for example, to ensure the Court properly

understands Plaintiff’s arguments.

Additionally, the undersigned is cautious about foreclosing any legitimate avenue

of discovery prematurely. The undersigned does not want to hamstring Plaintiff in

discovering relevant information necessary to prove his case. But, by the same token, a

district court has a duty, “of special significance in lengthy and complex cases where the

possibility of abuse is always present,” to supervise and limit discovery when it feels the

discovery is cumulative, unnecessary, designed to annoy or harass, excessively

expensive, or only marginally important. Mr. Frank, Inc. v. Waste Mgmt., Inc., No 80 C

3498, 1983 WL 1859, at *1 (N.D. Ill. July 7, 1983) (citations omitted). “The discovery rules

are not a ticket…to an unlimited, never-ending exploration of every conceivable matter

that captures an attorney’s [or pro se litigant’s] interest.” Robinson v. Stanley, No. 06 C

5158, 2009 WL 3233909, at *3 (N.D. Ill. Oct. 8, 2009) (quoting Vakharia v. Swedish Covenant

Hosp., 1994 WL 75055 at *2 (N.D. Ill. 1994)). “Parties are entitled to a reasonable

opportunity to investigate the facts—and no more.” Robinson, 2009 WL 3233909, at *3

(quoting Vakharia, 2009 WL 3233909, at *3). Ultimately, the plain language of Federal Rule

1 Moreover, “[a] litigant who appears pro se should not be treated more harshly for negligent errors than

one represented by an attorney. Otherwise, only those wealthy enough to be able to afford an attorney

would be able to insulate themselves from the consequences of an occasional human error ....” Sanders v.

Melvin, 25 F.4th 475, 483–84 (7th Cir. 2022) (citations omitted).

26(b)(1) requires the Court to “limit the frequency or extent of discovery otherwise

allowed by these rules or by local rule if it determines that…the discovery sought is

unreasonably cumulative or duplicative.” FED. R. CIV. P. 26(b)(2)(C).

A significant amount of discovery has already taken place in this case. Plaintiff

outlines that he has produced “thousands of unredacted and confidential files” to

Defendants (Doc. 116, p. 2). Defendants note that they have prepared answers and

responses, and supplemental answers and responses, to forty-nine (49) interrogatories,

one hundred and nine (109) requests for production, and one hundred thirty-seven (137)

requests for admissions (Doc. 111, pp. 1-2). Additionally, Defendants contend they have

produced one thousand twenty-two (1,022) pages of documents to Plaintiff (Id. at p. 2).

Plaintiff, however, argues that these documents are mainly his own medical records, for

which he had prior access and provided to Defendants themselves (Doc. 116, p. 2).

Defendants outline that in addition to exchanging written discovery, they have also met

with Plaintiff numerous times to discuss discovery issues. Specifically, the parties met on

October 18, 2021; November 5, 2021; December 3, 2021; December 17, 2021; January 13,

2022; March 9, 2022; and April 5, 2022 (Doc. 111, p. 2).

Defendants’ motion for protective order is directed at a series of additional

discovery requests Plaintiff made after the parties’ April 5, 2022 discussion. Requests for

Admission (“RFA”) are governed by Federal Rule of Civil Procedure 36, while Requests

for Production (“RFP”) are governed by Rule 34. See FED. R. CIV. P. 36; 34. Plaintiff served

additional RFAs on April 8 (titled “Plaintiff’s Fourth Request for Admissions to

Defendants”); April 12 (titled “Plaintiff’s Fourth Request for Admissions to Defendant

Ameren”); and April 13, 2022 (titled “Plaintiff’s Fifth Request for Admissions to

Defendant J.F. Electric”) (Docs. 111-1, 111-2, 111-3). Plaintiff served an RFP also on April

13, 2022 (titled “Plaintiff’s Fourth Request for Production of Documents to Defendant J.F.

Electric”) (Doc. 111-4). Defendants argue that, generally, these RFAs and RFP are

confusing, improper, and duplicative; therefore, the Court should enter a protective order

relieving them of their obligation to respond. The Court will address each in turn,

although there are similar issues running throughout each of Plaintiff’s Requests.

A. Plaintiff’s Fourth Request for Admissions to Defendants

The Court begins its analysis with Plaintiff’s Fourth Request for Admissions to

Defendants (Doc. 111-1). When used properly, “Rule 36 allows parties to narrow the

issues to be resolved at trial by effectively identifying and eliminating those matters on

which the parties agree.” United States v. Kasuboski, 834 F.2d 1345, 1350 (7th Cir. 1987); see

also, e.g., 8A CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND

PROCEDURE § 2256 (3d ed.) (“[T]he purpose of this rule…was and is to eliminate from

controversy those matters that will not be disputed.”). “Essentially, Rule 36 is a time-

saver, designed ‘to expedite the trial and to relieve the parties of the cost of proving facts

that will not be disputed at trial.’” Perez v. Miami-Dave Cty., 297 F.3d 1255, 1268 (11th Cir.

2002) (emphasis in original) (citation excluded); accord Tamas v. Family Video Movie Club,

Inc., 301 F.R.D. 346, 347 (N.D. Ill. 2014).

Defendants highlight that a number of Plaintiff’s requests are vague, duplicative,

and confusing. For example, Plaintiff’s first request states, “Admit that the 2nd paragraph

of page 3, of Defendant’s Position Statement to the E.E.O.C., Defendant states; ‘Several

days later, on October 12, 2018, Complainant was offered work at other properties and

other projects; however, Complainant declined that work being offered, and J.F. Electric

continued to pay Complainant his usual wages, inclusive of overtime pay throughout

that period.’”2 (Doc. 111-1, p. 2). As best as the Court can surmise, Plaintiff is requesting

Defendants to admit that one of the Defendants stated the quoted language in its Position

Statement to the E.E.O.C. Similarly, Plaintiff’s fifth request also asks Defendants to

“admit” that the Defendant’s Position Statement to the E.E.O.C. says: “refused to take

accountability for his actions at Ameren’s property” (Doc. 111-1, p. 2).

In his response, Plaintiff does not clearly explain how or why these Requests are

proper or relevant; however, Plaintiff does explain that Ameren refused to cooperate with

the E.E.O.C. by not providing a Position Statement (Doc. 112, p. 4). Plaintiff highlights

that Ameren communicated to Plaintiff that J.F. Electric submitted a Position Statement

to the E.E.O.C. on Ameren’s behalf, but this was a “lie,” as a FOIA request showed that

there was no Position Statement submitted on Ameren’s behalf to the E.E.O.C.. Id.

The Court does not have the advantage of having the documents referenced in

these materials before it (e.g., the E.E.O.C. position statement quoted in Plaintiff’s Fourth

2 Plaintiff, in his response, notes that he has learned through the discovery process that Ameren did not

submit a Position Statement to the E.E.O.C (Doc. 116). This Fourth Set of Requests for Admission appears

to be directed at both Defendants. It is not directed at one or the other, but rather “Defendants” as a group.

But if Plaintiff knows that Ameren did not submit a Position Statement, it is unclear to the Court why there

would be any utility in asking Ameren to admit or deny what a Position Statement submitted by J.F. Electric

says.

RFA’s to Defendants and likely filled out by J.F. Electric3), but the Court is hard pressed

to see any utility in asking a party to admit that a document says what it says. To the

Court’s knowledge, there is no dispute as to the legibility or readability of the document.

In short, the document says what it says – and everyone can see what it says – so there is

no need to admit or deny what it says. See, e.g., Reitz v. Creighton, No. 15 C 1854, 2019 WL

5798680, at *2 (N.D. Ill. Nov. 7, 2019) (“But it is unnecessary to demand a party admit or

deny what is contained in a deposition. The witness either said what is quoted or he

didn't.”).4

Plaintiff also includes Requests that require Defendants to admit controverted

facts. Generally speaking, requests about controversial or disputed issues are permissible

in RFAs. See FED. R. CIV. P. 36(a)(5). However, courts in some instances have declined to

compel a party to respond to requests to admit that seek information related to the

fundamental disagreement of the lawsuit, perceiving it to be “a useless exercise.”

Sommerfield v. City of Chicago, 251 F.R.D. 353, 356 (N.D. Ill. 2008) (citing Vakharia., 1994 WL

75055 at *7). Many of Plaintiff’s requests fall into this “useless exercise” definition, as they

cannot possibly serve to eliminate an uncontested issue. For example, Plaintiff requests

that Defendants admit certain controverted facts relating to Plaintiff’s mental and/or

physical disabilities at the time he was laid off. Specifically, Plaintiff’s seventh request

3 The Court reviewed the exhibit attached to Plaintiff’s response, but could locate any Position Statement

in it (Doc. 112-1). Conspicuously, the parties do not include citations to this document in their briefs,

therefore the Court can only conclude that this document is not an attachment to the briefing.

4 Additionally, Requests 2, 3, 4, 10, 11, 12, 13, 16, 18, and 22 all simply ask the Defendants to admit that a

document says what it says (See Doc. 111-1).

states, “Admit that, in the discovery disclosed to the Plaintiff from the Defendants, the

alleged actions at Ameren’s property, in which the Defendants suggest that the Plaintiff

should have taken accountability for, willfully violating WPA, rude to dispatcher and

removing hold tags were all found to be untrue” (Doc. 111-1). These facts, though, are

disputed by the parties, and are central to Plaintiff’s claims.5 Again, RFAs are not

intended to uncover evidence, but “to narrow the issues to be resolved at trial by

effectively identifying and eliminating those matters on which the parties agree.” Stanek

v. St. Charles Comm. Unit Cummings Sch. Dist., No. 13 C 3106, 2020 WL 9348204, at *5 (N.D.

Ill. Sept. 3, 2020) (citing Kasuboski, 834 F.2d at 1350); see also Republic of Turkey v. Christie's,

Inc., 326 F.R.D. 394, 399 (S.D.N.Y. 2018) (stating that requests may not “seek information

as to fundamental disagreement at the heart of the lawsuit”).6 In sum, a careful review

of Plaintiff’s Fourth Requests for Admission reveals that the set, as a whole, is improper

and clearly not aimed at serving the purpose of Rule 36. Accordingly, Defendants are

relieved of their obligation to respond to Plaintiff’s Fourth Requests for Admission.

5 See also Tamas v. Family Video Movie Club, 301 F.R.D. 346, 347 (N.D. Ill. 2014) (excusing the plaintiffs from

responding to requests to admit because, in part, the requests sought information related to the

fundamental disagreement of the lawsuit and were therefore not “designed to identify and eliminate those

matters on which the parties agree”); Colin E. Flora, It's A Trap! The Ethical Dark Side of Requests for

Admission, 8 ST. MARY'S J. LEGAL MAL. & ETHICS 2, 32 (2017) (“When the matter is clearly subject to a

good faith dispute—such that no reasonable party would admit—the good-faith obligation dictates that

requests not be sought.”)

6 Other examples of Requests to Admit that are clearly not designed to eliminate issues or narrow the issues

are: 6, 8, 9, 14, 17, 19, and 23 (See Doc. 111-1).

B. Plaintiff’s Fourth Request for Admissions to Defendant Ameren

There are similar issues in Plaintiff’s Fourth Request for Admissions directed just

against Ameren (Doc. 111-2). Again here, Plaintiff asks Ameren to admit or deny that a

document says what it says. The Court need not regurgitate all of its previous analysis

on why this is a futile exercise. Suffice to say, these Requests where Ameren is simply

asked to admit or deny that a document says what it says serve no purpose when there

is no genuine dispute as to the readability or legibility of the document. See supra pp. 11-

12. In the Requests to Ameren, Plaintiff sprinkles in some Requests that ask Ameren to

admit, for example, the time stamp on an e-mail (e.g., No. 8), or that the sender is not on

an e-mail (e.g., No. 10), or that a prior pleading says what it says (e.g., No. 35). But the

overall import is the same: the document, e-mail, or pleading says what it says and there

is no utility in asking a party to admit or deny as much.7 Another such example of an

improper request: Plaintiff asks in Request 57, for Ameren to “admit that the Merriam

Webster Dictionary definition of intentions is ‘what one intends to do or bring about.’”

(Id. at p. 9). The Court sees no way in which this Request furthers the goals of Rule 36.

There are problems with many other Requests as well. Generally speaking, the

problematic Requests include Requests that either ask Ameren to interpret or speculate

on the meaning of sentences, e-mails, or documents, or to admit or deny clearly

controverted facts. Accordingly the following Requests are improper and Ameren is

7 This applies to Requests: 1, 3, 5, 6, 7, 8, 9, 10, 11, 12, 14, 17, 18, 19, 20, 23, 24, 25, 28, 29, 31, 34, 35, 36, 39, 43,

44, 45, 46, 48, 54, 55, and 57.

relieved of its obligation to answer: 13, 15, 16, 21, 22, 26, 27, 28, 29, 40, 41, 42, 49, 55, 58,

59, 60.

Ameren also objects to some of Plaintiff’s Requests as duplicative of prior

Requests. But the few Requests Ameren points the Court to as “duplicative” require the

Court to piece together the answers to multiple prior Requests. Thus the Court does not

view these requests as duplicative per se.

Finally, the Court notes that in its review of the Requests, there are some that are

appropriate and Ameren will be required to answer these Requests. The Court found

these Requests to be fairly straightforward and easily admitted or denied. They are as

follows: 2, 4, 30, 32, 33, 37, 38, 47, 50, 51, 52, 53, 56, 61, 62, 63, 64, 65. Ameren shall comply

with its obligation under Rule 36 with respect to these requests.

C. Plaintiff’s Fifth Request for Admissions to Defendant J.F. Electric

Plaintiff’s Fifth Request for Admissions directed at J.F. Electric suffers from the

many of the same flaws the Court has already discussed (Doc. 111-3). The following

Requests, again, simply ask the Defendant to admit or deny that a document says what

it says: 1, 3, 58, 6.

There are also Requests that again ask J.F. Electric to interpret the meaning of

certain documents, which the Court views is an improper use of the Rule 36. These

8 There are two requests labeled “5.” The first Number 5 reads: “Admit that in the REASON FOR

SEPARATION, FOIA 0053, the checked box reads Reduction in Force. Just Admit or Deny will be a

sufficient Response to this Request.” (Doc. 111-3, p. 2). The Court refers to the first Number 5 here.

Requests are as follows: 2, 4, 59, 8, 9. The remaining three Requests (7, 10, and 11) are

duplicative of other Requests and prior discovery Requests. Accordingly, J.F. Electric will

be relieved of its obligation to respond to the Fifth Request for Admission.

D. Plaintiff’s Fourth Request for Production to Defendant J.F. Electric

With respect to Plaintiff’s Request for Production, the Court declines to impose a

protective order at this time. The major thrust of J.F. Electric’s arguments to support its

motion for protective order is that the majority of these requests concern attorney work

product and are privileged (Doc. 111, pp. 9-10). As an initial matter, Federal Rule of

Civil Procedure 34 provides that a party may serve a request to produce “any designated

documents or electronically stored information” that “describe[s] with reasonable

particularity each item or category of items to be inspected.” FED. R. CIV. P. 34(b)(1)(A),

(C). Rule 34 takes an “expansive approach” to the breadth of what information is

discoverable. Melgoza v. Rush Univ. Med. Ctr., No. 17 C 6819, 2019 WL 2504094, at *3 (N.D.

Ill. June 14, 2019).

The work product privilege, codified in Federal Rule of Civil Procedure 26(b)(3),

protects “documents and tangible things that are prepared in anticipation of litigation or

for trial by or for another party or its representative.” FED. R. CIV. P (26)(b)(3). See also

Hobley v. Burge, 433 F.3d 946, 949 (7th Cir. 2006) (“The purpose of the qualified privilege

for attorney work product ... is to establish a zone of privacy in which lawyers can

analyze and prepare their client's case free from scrutiny or interference by an

9 This is the second Number 5 Request.

adversary.”); MSTG, Inc. v. AT & T Mobility LLC, No. 08 C 7411, 2011 WL 221771, at *2

(N.D. Ill. Jan. 20, 2011) (“The work product doctrine protects documents that an attorney

or representative of a party prepares in anticipation of litigation in order to prepare or

analyze a client’s case”). To be clear, “‘Rule 26 clearly protects party, and not just

attorney, preparation’ and the ‘the fact that a particular communication may not go to an

attorney does not prevent its being work product.’ ” Est. of Her v. Sadownikow, No. 17 C

1015, 2018 WL 3574888, at *3 (E.D. Wis. July 25, 2018) (rejecting argument that document

was not protected work product unless it was created at the direction of an attorney)

(quoting In re Air Crash Disaster at Sioux City, 133 F.R.D. 515, 520 (N.D. Ill. 1990); Abbott

Labs. v. Alpha Therapeutic Corp., 200 F.R.D. 401, 409 (N.D. Ill. 2001) (same).

Under federal law, the work product privilege is narrowly construed because it

makes the search for truth more difficult, as it prevents disclosure of relevant and

probative information. Federated Mut. Ins. Co. v. Coyle Mech. Supply Inc., No. 3:17-CV-

00991-SMY-GCS, 2021 WL 3186959, at *3 (S.D. Ill. July 28, 2021) (citing Slaven v. Great Am.

Ins. Co., 83 F. Supp. 3d 789, 794 (N.D. Ill. 2015)). Therefore, a party asserting work product

privilege must demonstrate, with particularity and through competent evidence, that the

privilege applies to each document for which it is claimed. Id. So in this matter, the burden

is on J.F. Electric to demonstrate that each document sought and not produced is covered

by the work product privilege. United States v. BDO Seidman, 337 F.3d 802, 811 (7th

Cir.2003); United States v. White, 950 F.2d 426, 430 (7th Cir.1991); Oleksy v. General Elec.

Co., 2011 WL 3471016, at *3 (N.D.Ill.2011). “Blanket claims of privilege or conclusory

assertions are insufficient to carry this burden.” White, 950 F.2d at 430; Moore v. Board of

Trustees of Illinois Community College Dist. No. 508, 2010 WL 4703859, at *2 (N.D.Ill. 2010).

Given Illinois' “strong policy of encouraging disclosure,” it is “the privilege, not the duty

to disclose, that is the exception,” and thus the privilege is construed “within

its narrowest possible limits.” Waste Management, Inc. v. International Surplus Lines

Insurance Co., 579 N.E.2d 322, 327 (1991).

J.F. Electric does not argue, with competent evidence and particularity, why the

documents outlined in Plaintiff’s Fourth Request are covered by the work product

privilege; rather, J.F. Electric makes blanket arguments that documents are privileged

without providing information necessary for the Court to determine if these materials

are, in fact, privileged. Therefore, the Court declines to enter a protective order for this

set of Requests, at this time.

J.F. Electric is directed to answer, object, or answer subject to certain objections

within 45 days from the date of this order. The Court allots 45 days because following the

entry of this Order, Plaintiff has 15 days (until June 30, 2022) to review the case law cited

above regarding attorney-work product and determine whether he is willing to

withdraw any Request that is seeking privileged information. If so, Plaintiff should notify

counsel in writing of the Request(s) he will withdraw. Then J.F. Electric has 30 days to

answer, object, or answer subject to certain objections (the 30th day falls on a Saturday so

until August 1, 2022).

The Court encourages J.F. Electric that if it objects because it believes the discovery

is duplicative, specifically identify which discovery Request(s) it is duplicative of in its

objection. With respect to J.F. Electric’s work product privilege arguments, J.F. Electric

must specifically assert this privilege in response to the Request(s). J.F. Electric should

also keep in mind Rule 26(b)(5), which provides for a party’s obligation when claiming

privilege.

II. Plaintiff’s Motions

After the April 26, 2022 hearing, Plaintiff filed a series of three motions, one of

which was Plaintiff’s amended motion to deny Defendants’ protective order, which the

Court has already addressed. The Court will address Plaintiff’s other two motions here.

A. Plaintiff’s Motion for Clarification

On April 27, 2022, Plaintiff filed a motion for clarification relating to the April 26,

2022 hearing (Doc. 114, p. 1). In short, he says he cannot remember the Court’s ruling on

whether he can speak to a witness (who is a J.F. Electric employee) and who is

represented by J.F. Electric’s attorneys for the purpose of his scheduled deposition. The

witness’ name is Mr. Zbinden. Counsel for J.F. Electric have indicated they intend to

represent Mr. Zbinden at his deposition and have asked Plaintiff to communicate through

counsel (rather than directly with Mr. Zbinden) regarding the deposition. The Court

found this to be an appropriate request and directed Plaintiff to comply with it.

Plaintiff claims Mr. Zbinden is a lineman working for J.F. Electric through the local

union hall (International Brotherhood of Electrical Workers, Local 309). In other words,

Mr. Zbinden is not a managerial worker for J.F. Electric. Plaintiff claims Mr. Zbinden did

not request to be represented by J.F. Electric and references an affidavit he procured from

Mr. Zbinden back in October 2021 (Doc. 114). The affidavit, however, is not attached.

Additionally, Plaintiff points the Court to Rule 4.2 to suggest that a lawyer representing

a corporation to enforce a blanket prohibition against speaking with corporate

employees. Id.

But, before looking to the commentary of Rule 4.2, its important to look to the

actual rule itself. Rule 4.2 prohibits a lawyer who is representing a client from

“communicat[ing] about the subject of the representation with a person the lawyer knows

to be represented by another lawyer in the matter, unless the lawyer has the consent of

the other lawyer or is authorized to do so by law or a court order.” ABA Rule 4.2

Communication with Person Represented by Counsel—Comment,

https://www.americanbar.org/groups/professional_responsibility/publications/mod

el_rules_of_professional_conduct/rule_4_2_communication_with_person_represented_

by_counsel/ (last visited June 8, 2022).10 While Plaintiff is not a lawyer, he is representing

himself pro se in this matter and this rule must extend to him as a pro se litigant. See Villa

v. City of Chicago, 1986 WL 13728, at *3, n.2 (N.D. Ill. Dec. 3, 1986) (“Plaintiff, a pro se

litigant, is held to the same standards of professional conduct as an attorney and was

warned by this court that contacting defendants directly when he knew that defendant .

. . was represented by counsel could constitute a violation of DR 7–104(A).”); c.f. Jones v.

Phipps, 39 F.3d 158, 162 (7th Cir. 1994) (“Although civil litigants who represent themselves

... benefit from various procedural protections not otherwise afforded to the ordinary

10 Illinois has an analogous rule regarding communications with persons who are represented by counsel.

See Ill. Rules of Prof. Conduct, Rule 4.2 (“In representing a client, a lawyer shall not communicate about the

subject of the representation with a person the lawyer knows to be represented by another lawyer in the

matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court

order.”).

attorney-represented litigant, pro se litigants are not entitled to a general dispensation

from the rules of procedure or court imposed deadlines.”)(internal citations omitted).

Plaintiff has been informed that Mr. Zbinden is represented by J.F. Electric’s

counsel for the purpose of his deposition (i.e. that is the “subject of the representation”

noted in the Rule). There is no suggestion that Mr. Zbinden has terminated the

representation he is receiving from J.F. Electric’s attorneys in connection with his

deposition. And Plaintiff has been informed by J.F. Electric’s counsel not to communicate

with Mr. Zbinden about his deposition. In other words, Plaintiff does not have the

“consent” of counsel to speak with Mr. Zbinden regarding his deposition without counsel

present. Nor has he been authorized by the Court to do so. Accordingly, the Court will

grant Plaintiff’s motion for clarification, but reiterates its ruling: Plaintiff is not to have

any contact with Mr. Zbinden (or any other party or witness whom he knows to be

represented) about the subject of the representation unless he has received consent from

counsel to do so. If he wishes to speak to Mr. Zbinden about his deposition, his first stop

should be counsel for J.F. Electric.

B. Plaintiff’s Rule 60 Relief from a Judgment or Order Motion

On May 2, 2022, Plaintiff filed a motion for relief from a judgment or order based

on Rule 60 (Doc. 117). In the motion, Plaintiff asks the Court to reconsider its April 29,

2022 text order, which reads as follows: