The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JOSHUA TUGGLE,
Plaintiff,
v. Case No. 24-CV-01167-SPM
CORD WILLIAMS, et al.,
Defendants.
MEMORANDUM AND ORDER
McGLYNN, District Judge:
Before the Court is a Motion for Hearing on Bad Faith Concealment of
Evidence and for Sanctions pursuant to Federal Rule of Civil Procedure 37(c)(1) filed
by Plaintiff Joshua Tuggle. (Doc. 49). Defendant Donald Wanack filed a Response
(Doc. 51), as did Defendants Trace Brown, Pierce Martin, David Mitchell, Ryan
Morgan, and E. Spiller (Doc. 52). Having been fully informed of the issues presented,
Tuggle’s Motion is DENIED.
RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
The instant action stems from a beating that occurred while Plaintiff Joshua
Tuggle was incarnated at Pinckneyville Correctional Center in Illinois. (See Doc. 2,
p. 2). Plaintiff Tuggle filed an initial Complaint and Amended Complaint on April 24,
2024. (See Docs. 1, 2). He brought 42 U.S.C. § 1983 Fourth Amendment excessive
force and failure to protect claim against the correctional officers he alleges were
involved in his beating, including Cord Williams, Christian Pyles, Pierce Martin,
Trace Brown, E. Spiller, Ryan Morgan, Donald Wanack,1 Mark Maxwell, and Warden
David Mitchell. (See Doc. 2).
This Court entered a Scheduling Order in this case on December 11, 2024. (See
Doc. 48). Plaintiff Tuggle filed the instant Motion on April 18, 2025. (See Doc. 49).
Defendant Donald Wanack filed a response on May 1, 2025 (Doc. 51) and Defendants
Trace Brown, Pierce Martin, David Mitchell, Ryan Morgan, and E. Spiller filed a
separate Response on May 2, 2025 (Doc. 52).
APPLICABLE LAW AND LEGAL STANDARDS
Federal Rule of Civil Procedure 37(c)(1) states that “[i]f a party fails to provide
information or identify a witness as required by Rule 26(a) or (e), the party is not
allowed to use that information or witness to supply evidence on a motion, at a
hearing, or at a trial, unless the failure was substantially justified or is harmless.”
The Seventh Circuit has held that “[t]hese requirements may be modified by the
district court, and their enforcement is left to the court’s sound discretion.” Hirlston
v. Costco Wholesale Corp., 81 F.4th 744, 755 (7th Cir. 2023) (citing In re Golant, 239
F.3d 931, 937 (7th Cir. 2001)). However, “[w]hen a party fails to supply required
witness information, exclusion of those witnesses is automatic and mandatory unless
the delinquent party can show good cause for the violation.” Buck v. Young, No. 22-
2052, 2024 WL 2796653, at *2 (7th Cir. May 31, 2024) (citing FED. R. CIV. P. 26(e)(1),
37(c)(1)); David v. Caterpillar, Inc., 324 F.3d 851, 857 (7th Cir. 2003)).
1 Defendant Wanack’s surname is erroneously misspelled as “Wansck” in the Amended Complaint.
(Doc. 2).
ANALYSIS
At the heart of this matter is a video conference among the attorneys in this
case that occurred on April 14, 2025. (See Doc. 49, p. 2). Attorney Jared Kosoglad
(counsel of record for Plaintiff Tuggle) alleges that Attorney Charles Ewell (counsel
of record for Defendant Wanack) “disclosed that Defendants possess over 150 media
files of interviews, statements, and videos, none of which was referred to or disclosed
in Defendant Wanack’s Rule 26 disclosures.” (Id.). Attorney Kosoglad states that he
then contacted Attorney Robert Schultz (counsel of record for Defendants Brown,
Martin, Mitchell, Morgan, and Spiller) “specifically inquiring about information
related to the impending trial” in McReaken v. Kellerman, No. 21-cv-00584-SPM (S.D.
Ill.) and Toliver v. Kellerman, No. 25-cv-00059-SPM (S.D. Ill).2 Attorney Kosoglad
alleges that because the “issue in the McReaken and Toliver cases is the retaliatory
culture and retaliatory motive of the Defendants from Pinckneyville prison,” that
“defense counsel’s improper concealment of evidence in this case, coupled with the
ongoing improper effort to avoid the existing evidence of the Defendants’ retaliatory
motive, appears intended to subvert justice.” (Doc. 49, p. 3). Attorney Kosoglad argues
that sanctions are mandatory in accordance with Rule 37(c)(1) and that “[a]s a result
of their failure to make Rule 26 disclosures, Defendants Williams, Martin, Brown,
Spiller, Morgan, and Mitchell should be prohibited from relying on information or
witnesses” and that “[a]s a result of Defendant Wanack’s concealment of the media
2 Attorney Kosoglad is counsel of record for the Plaintiffs in the McReaken and Toliver cases. As of
April 28, 2025, both cases have settled. See McReaken, No. 21-cv-00584-SPM (Doc. 126).
files from discovery, Defendant Wanack should be prohibited from using such files
and the information therein contained at trial.” (Doc. 49, p. 3).
Attorney Charles Ewell tells a different story, arguing that Plaintiff’s Motion
is “is premature, misleading, and unsupported by evidence or facts.” (Doc. 51, p. 2).
Attorney Ewell states that “he was completely unfamiliar with the
[McReaken/Toliver] case to which Mr. Kosoglad was referring, and informed Mr.
Kosoglad that he would have to discuss that case with an attorney of record in that
case” because “due to a potential conflict of interest, he has not been, and would not
be, working with AAG Shultz in this case, and that there was a proverbial ‘Chinese
Wall’ in place to comply with the Rules of Professional Conduct.” (Id., p. 5). Attorney
Ewell states that he is “not aware of what files Mr. Shultz may or may not have or
what requests he has made in this case” but that he informed Attorney Kosoglad that
“it may be difficult to share the video files because they are approximately 150
gigabytes in size, which is too large to send via email” and argues that he “made no
representations about ‘150 media files’ as Plaintiff claims in his Motion.” (Id. (quoting
Doc. 49, ¶ 11)). Attorney Ewell claims that Attorney Kosoglad’s Motion misleads the
Court in fourteen separate ways. (Id., pp. 9–15). He also states that Attorney
Kosoglad has failed to abide by the “meet and confer” requirement in Rule 37 and in
this Court’s Local Rule 26.1(c)(3). (Id., p. 16).
Attorney Ewell also states that “[a] cursory review of a small sample of some
of Mr. Kosoglad’s other federal cases reveals an unfortunate pattern of his filing
baseless, premature motions for sanctions and motions for unnecessary judicial
involvement in alleged discovery disputes, along with unfounded accusations of
attorney misconduct.” (Id., p. 16; see id., pp. 16–17 (citing Vela v. Thompson, No. 3:16-
cv-00051-CCB (N.D. Ind.); Holoman v. Tilden, No. 1:14-cv-01439-HAB (C.D. Ill.);
McReaken v. Kellerman, No. 21-CV-00584-SPM (S.D. Ill.))).
In a separate Response (Doc. 52), Attorney Shultz admits that “Defendants did
not send their initial disclosures until April 29, 2025” but argues that the “delay was
not due to any nefarious attempt by the undersigned to gain any advantage in this
case or in an unrelated case, and importantly, any delay in the disclosure is entirely
harmless.” (Id., p. 3). He argues that “Plaintiff never points to what harm they
suffered from the delay” and that “Defendants find it difficult for Plaintiff to argue
that any harm occurred from the delay without expressly pointing to what the harm
is.” (Id.; see also id. (citing Tribble v. Evangelides, 670 F.3d 753, 760 (7th Cir. 2012);
David v. Caterpillar, Inc., 324 F.3d 851, 857 (7th Cir. 2003))). Attorney Shultz argues
that there is no prejudice and that, even if there were prejudice associated with the
late disclosure of witnesses, that such prejudice can be cured in the future. (Id., p. 4).
He also argues that the delay in witness disclosures will not delay trial and that there
is not any evidence of bad faither. (Id., pp. 4–5).
Attorney Shultz also argues that “Plaintiff appears to infer that Defendants
are willfully violating Rule 26(a)(1) by not producing every document in their
possession that may relate to a different, unrelated, and irrelevant case.” (Id., p. 5
(quoting Doc. 49, ¶ 24)). He argues that “Plaintiff cites no rule that would require
such disclosures from the Defendants” and that “Rule 26 does not even require a party
to produce every relevant document about a case, rather the rule only requires are
party to produce documents that they may use to support their claims.” (Id. (citing
FED. R. CIV. P. 26(a))). He also argues that Defendants’ delayed disclosures did not
violate Rules 3 and 4 of the Illinois Rules of Professional Conduct.” (Id., p. 7). Attorney
Shultz states that “[t]he undersigned vehemently denies these allegations and
welcomes a hearing as requested by Plaintiff’s counsel in order to ensure that these
unsupported and unsubstantiated attacks on his character are defended fully.” (Id.,
p. 8).
The Court need not dive into the granular details of the April 14, 2025 meeting
and phone calls because Plaintiff has failed to provide evidence that he has met and
conferred in good faith with Defendants’ counsel to address his concerns in
accordance with Federal Rule of Civil Procedure 37(a)(1), Local Rule 26.1(c)(2), and
this Court’s Case Management Procedures. See FED. R. CIV. P. 37(a)(1) (stating that
“[t]he motion must include a certification that the movant has in good faith conferred
or attempted to confer with the person or party failing to make disclosure or discovery
in an effort to obtain it without court action.”); Local Rule 26.1(c)(2) (stating that
“[t]he parties must make good faith efforts to timely meet and confer on any discovery
dispute before filing a motion with the Court.” (emphasis added)). The April 14, 2025
email from Attorney Kosoglad to Assistant Attorneys General Ewell and Shultz does
not meet this requirement. Based on the evidence submitted by the parties, this Court
rules that Plaintiff Tuggle’s Motion must be denied and, therefore, that a hearing on
Plaintiff’s Motion is not required.
CONCLUSION
For the reasons set forth above, Plaintiff Tuggle’s Motion for Hearing on Bad
Faith Concealment of Evidence and for Sanctions pursuant to Federal Rule of Civil
Procedure 37(c)(1) is DENIED.
IT IS SO ORDERED.
DATED: May 14, 2025
s/ Stephen P. McGlynn
STEPHEN P. McGLYNN
U.S. District Judge