Joint rule 26 report

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

THOMAS J. HOLMES, et. al., Plaintiffs, v.

Case No.: 14-CV-208

JOHN DICKERT, et al., Defendants.

JOINT RULE 26(f) REPORT

Pursuant to this Court’s September 4, 2014 Notice of Rule 16 Scheduling Conference and Federal Rule of Civil Procedure 26(f), the parties conferred on September 12, 2014 and submit this report.

At the outset, plaintiffs respectfully request that this Court revisit its directive to complete trial by October 1, 2015. See Docket #64. This case involves 22 parties and unusually complex legal issues. As this Court correctly noted, “this matter is very complex.” See Docket #60 at 2.

Because of the complexity of the claims and number of parties and expected witnesses involved, plaintiffs need extensive written, electronic and oral discovery to properly investigate and prosecute their causes of action. While plaintiffs have and will continue to work diligently and efficiently to bring this matter to trial, plaintiffs also wish to be candid with this Court. In that regard, plaintiffs respectfully submit that a trial ending on October 1, 2015 will not allow plaintiffs to effectively and thoroughly engage in the discovery process and prepare for trial.

Courts in this Circuit consistently note that “the scope of discovery should be broad in order to aid in the search for the truth.” See, e.g., Kodish v. Oakbrook Terrace Fire Prot. Dist., 235 FRD

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447, 450 (N.D. Ill. 2006) (internal citations omitted). As this Court noted, plaintiffs’ allegations “suggest a case with serious potential that should proceed to discovery.” See Docket #60 at 3.

Plaintiffs simply seek discovery commensurate with the proofs required for the claims at issue.

“Courts commonly look unfavorably upon significant restrictions placed on the discovery process.” Kodish, 235 FRD at 450. Unfortunately, a trial date prior to October 1, 2015 would effectively forestall plaintiffs from participating in meaningful discovery and prejudice their abilities to search for the truth and thoroughly prove up their claims. As such, this submission contains plaintiffs’ proposed schedule, including some dates that extend beyond the October 1, 2015 deadline.

Defendants do not agree with plaintiffs’ characterization of the need for extensive discovery, and believe that this case can proceed in accordance with this Court’s directive that trial should be completed by October 1, 2015. As such, this report also contains proposed dates based on the Court’s order.

I.

NATURE OF THE CASE This case arises out of alleged violations of the Civil Rights Act (42 U.S.C. §§ 1983,

1985(3)) and the Racketeer Influenced and Corrupt Organizations Act (18 U.S.C. § 1962(b)-(d)).

Plaintiffs allege that 16 defendants, both within and outside of the municipal government of Racine, have conspired to gain control of the government through a pattern of racketeering activity and use the government for their own personal benefit and to the detriment of minority business owners including plaintiffs.

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Defendants deny plaintiffs’ allegations and have moved to dismiss plaintiffs’ RICO allegations in their entirety and plaintiffs’ 42 U.S.C. § 1985(3) allegations in their entirety.

Defendants have additionally moved to dismiss some of plaintiffs’ 42 U.S.C. § 1983 claims.1 II.

STATUS OF CASE a. Procedural History This matter was initially filed in the Eastern District of Wisconsin against John Dickert,

individually and in his official capacity as Mayor of the City of Racine; the City of Racine; Gary E. Becker, individually and in his official capacity as Mayor of the City of Racine; Downtown Racine Corporation; Racine City Tavern League, Inc.; Kurt S. Wahlen, individually and in his official capacity as Chief of Police of the Racine Police Department; Jeffrey A. Coe, individually and in his official capacity as Alderman and Member of the Racine Common Council; James Kaplan, individually and in his official capacity as Alderman and Member of the Racine Common Council; Raymond DeHahn, individually and in his official capacity as Alderman and Member of the Racine Common Council, Gregory T. Helding, individually and in his official capacity as Alderman and Member of the Racine Common Council; David L. Maack (incorrectly named as David L. Maack II)2, individually and in his official capacity as Alderman and Member of the Racine Common Council, Aron M. Wisneski, individually and in his official capacity as Alderman and Member of the Racine Common Council; Robert E. Mozol, individually and in his official capacity as Alderman and Member of the Racine Common Council; Devin P. Sutherland, individually and as Executive Director of the Downtown Racine Corporation and Manager of the Downtown Business Improvement District #1; Mark L. Levine, individually and as Chairman of

1

Defendant City of Racine has not moved to dismiss Plaintiffs’ claims in their Amended Complaint. Rather, the City of Racine has received an extension of its deadline to answer as set forth in this Court’s September 9, 2014 order.

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the Downtown Business Improvement District #1; Joseph G. LeGath, individually and as Member of the Racine City Tavern League, Inc. and Board Member of the Downtown Business Improvement District #1; Douglas E. Nicholson, individually and as Member of the Racine City Tavern League, Inc.; Monte G. Osterman, individually; Mary Osterman, individually and in her official capacity as Treasurer of Mayor John Dickert’s election campaign; and Gregory S. Bach, individually and in his official capacity as Assistant to Mayor John Dickert on or about February 25, 2014.

On May 16, 2014, all defendants filed motions to dismiss under Federal Rule of Civil Procedure 12(b)(6) except for the Racine City Tavern League, which filed a Motion for judgment on the pleadings and joinder of motion to dismiss under Federal Rule of Civil Procedure 12(c). Plaintiffs timely responded to each motion on June 27, 2014. All defendants replied on July 18, 2014. This court issued its order to dismiss the complaint without prejudice on July 30, 2014, and allowed plaintiffs to file an amended complaint within twenty-one (21) days of the entry of the order to which defendants had twenty-one (21) days to file their respective answers or appropriate motions.

Pursuant to this court’s order, plaintiffs filed their Amended Complaint on August 21, 2014, against the City of Racine as well as the following persons in their individual capacity: John Dickert, Gary Becker, Racine City Tavern League, Inc., Kurt Wahlen, James Kaplan, Gregory T. Helding, David L. Maack, Aron Wisneski, Robert Mozol, Devin Sutherland, Mark Levine, Joey LeGath, Douglas Nicholson, Monte Osterman, and Mary Osterman.

The parties conferred pursuant to Fed. R. Civ. P. 26(f) on September 12, 2014.

2

The caption of this case was corrected pursuant to the parties’ May 2, 2014 stipulation. (See Dkt. #18).

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b. Pending Motions 1. On September 10, 2014, Defendants John Dickert, Gary E. Becker, Kurt S. Wahlen, James Kaplan, Gregory T. Helding, David L. Maack, Aron M. Wisneski, Robert E. Mozol, Devin P. Sutherland, Mark L. Levine and Joseph G. LeGath filed a motion to dismiss portions of plaintiffs’ Amended Complaint as follows: a. Certain § 1983 claims; b. The § 1985(3) claims in their entirety; and c. The RICO claims in their entirety.

2. On September 10, 2014, Defendant Racine City Tavern League, Inc. filed a motion to dismiss plaintiffs’ Amended Complaint as to it in its entirety.

3. On September 10, 2014, Douglas Nicholson, Monte Osterman and Mary Osterman filed a motion to dismiss plaintiffs’ Amended Complaint as to them in its entirety.

4. On September 10, 2014, Defendant Devin P. Sutherland filed a motion to dismiss plaintiffs’ Amended Complaint as to him in its entirety. c. Subject Matter Jurisdiction The Court has jurisdiction over this matter pursuant to Title 28, United States Code, Sections 1331 and 1343(a)(1), (3).

III.

ADDITONAL MOTIONS CONTEMPLATED In addition to the currently pending motions to dismiss, defendants anticipate filing

motions for summary judgment on claims that survive the motions to dismiss.

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IV.

ISSUES ADDRESSED UNDER FED. R. CIV. P. 26(f) a. Initial Disclosures Plaintiffs and defendants have not yet served their initial disclosures pursuant to Fed. R.

Civ. P. 26(a)(1).

Plaintiffs propose a firm deadline of November 3, 2014 to serve initial

disclosures. Defendants suggest that any deadline for initial disclosures be scheduled for the later of twenty-one (21) days after the date this Court enters its decisions on the pending Motions to Dismiss or November 3, 2014. Defendants believe that the scope of the disclosures may be severely limited by the decision on these Motions. Plaintiffs submit that scheduling the deadline twenty-one (21) days after this Court’s ruling on Motions to Dismiss would effectively shorten an already expedited discovery period.

If the Court is inclined to set a firm deadline for serving initial disclosures, defendants will agree to the deadline suggested by plaintiffs—November 3, 2014. b. Amendment of Pleadings No further amendments of pleadings are anticipated. However, the parties agree to a deadline of December 1, 2014 to amend pleadings without leave of the Court. c. Discovery i. Subjects of Discovery The parties anticipate that discovery will be needed on the matters raised in the pleadings.

Discovery will include written interrogatories, request for production of documents, including electronically stored information, requests for admissions, lay and expert witness depositions as well as third party discovery.

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ii. Completion of Discovery Plaintiffs suggest a discovery deadline of February 17, 2016. Defendants suggest a deadline of August 3, 2015. iii. Electronic Information The parties expect that they will request and will produce electronically stored information. Specifically, the parties may seek e-discovery regarding all computers, hard drives, data, notes, emails and text messages. Acquiring this material could require the hiring of a thirdparty vendor.

The parties intend to work together to diminish the burden of production which may include, inter alia, using key word searches. In addition, although no formal agreement has been reached at this time, the parties agree to work together regarding the manner in which electronically stored information is produced and regarding any post-production claims of privilege or of protection of trial-preparation material. iv. Issues of Privilege The parties agree to comply with applicable Federal Rules of Civil Procedure and the Federal Rules of Evidence and applicable case law in connection with the assertion of privilege claims. Should a party claim privilege under the aforementioned rules, a privilege log will be required. The parties agree that a privilege log will include the following information for any claimed privilege: 1.

2.

3.

4.

5.

6.

The Date of the Document; The Type of Document (e.g., e-mail, memorandum, letter, etc.); The Name of the Author(s); The Name of the Recipient(s); The Subject Matter of the Document; and The Claimed Privilege.

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v. Limitations on Discovery The parties recommend that discovery shall by governed by those set forth in the Federal Rules of Civil Procedure and the Court’s local rules. Plaintiffs believe that both the Federal Rules of Civil Procedure and this Court’s local rules contemplate the need for extensive discovery when warranted.

See E.D. WI Civil L. R. 33(a)(3) (permitting parties to serve

additional interrogatories after obtaining leave of court); Fed. R. Civ. P. 30(a)(2) (permitting parties to take additional depositions with leave of court).

A. The Number of Interrogatories: The parties have conferred concerning the number of interrogatories needed to obtain sufficient written discovery in this case but were unable to come to an agreement. While the local rules allows each party to serve a minimum of twenty-five (25) written interrogatories on any other party without leave, plaintiffs believe that extensive discovery is required in this case, again due to the complexity of the legal issues and the number of parties involved. Plaintiffs believe that this Court has acknowledged the complex nature of this case and sufficient written discovery will enable plaintiffs to properly investigate their claims, search for the truth, avoid surprise, narrow the scope of the issues being litigated, and prepare for trial. See Schmude v.

Tricam Industries, Inc., 550 F. Supp. 2d 846, 853 (E.D. Wis. 2008) (purposes of the discovery rules are to “avoid surprise and the possible miscarriage of justice, to disclose fully the nature and scope of the controversy, to narrow, simplify, and frame the issues involved, and to enable a party to obtain the information needed to prepare for trial”) (citing 8 Wright, Miller & Marcus, Federal Practice and Procedure: Civil 2d, § 2001 at 44-45 (West 1994)). Plaintiffs also wish to remind the Court that the facts they seek to investigate are largely in the hands of the alleged conspirator defendants, and therefore can only be unearthed via the discovery process. As such,

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plaintiffs seek twenty-five (25) interrogatories to propound on each defendant named in this case, excluding interrogatories seeking information related to the storage of, number of and/or location of custodians of electronic discovery. Should this Court award plaintiffs fewer interrogatories than requested, plaintiffs at minimum ask for the same number of interrogatories as defendants.

Defendants object to plaintiffs’ proposal to serve twenty-five (25) interrogatories upon each defendant in this case as unduly burdensome and duplicative. Defendants believe that the limitations concerning the number of interrogatories set forth in E.D. Wis. Civil L.R. 33(a)(1) should apply in this case. Specifically, parties represented by the same counsel should be regarded as “one party” and each party should be limited to twenty-five (25) interrogatories (exclusive of interrogatories inquiring about the names and locations of persons having knowledge of discoverable information or about the existence, location, or custodian of evidence). In this regard, defendants would be willing to be treated as a collective group such that plaintiffs (collectively) and defendants (collectively) may serve twenty-five (25) total interrogatories upon the opposing side. In an attempt to compromise, defendants have proposed (and plaintiffs have rejected) that the number of interrogatories permitted be increased to thirtyfive (35) interrogatories for plaintiffs (collectively) and defendants (collectively).

B. The Number of Depositions: The parties conferred on the issue of whether additional depositions will be needed in excess of the ten depositions referenced in Fed. R. Civ. P. 30 but were unable to reach an agreement. Plaintiffs believe that the Federal Rules contemplate the need for extensive oral discovery in complex matters by providing litigants with an opportunity to seek leave of court to depose more than ten witnesses. See Fed. R. Civ. P. 30. As stated, plaintiffs believe this case involves complex issues and an unusually large number of parties and witnesses. In plaintiffs’

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counsel’s experience, cases of this nature and complexity involve a considerable oral discovery process, including upwards of one hundred to two hundred (100 to 200) depositions. Plaintiffs will abide by the Court’s directive to streamline the litigation process, and in that regard, request substantially less than the typical number of depositions taken in cases of this nature. However, if plaintiffs were only to take the sixteen (16) defendants’ depositions in this case, they would still need nearly thirty (30) depositions to cover all individual defendants as well as the many individuals who need to be deposed on behalf of the entity defendants. Taking into account the number of parties, the complex nature of the allegations, and the sheer volume of witnesses involved, plaintiffs anticipate needing approximately eighty (80) depositions to properly investigate their claims and prepare for trial.

Defendants dispute that eighty (80) depositions will be necessary for plaintiffs to properly investigate their claims and contend that such use of depositions would result in unnecessary duplication of testimony and would be particularly unworkable given this Court’s order that trial be completed by October 1, 2015. Defendants propose that the number of depositions can be reasonably limited to forty (40) with the opportunity for the parties to seek leave if they are unable to reach agreement concerning the necessity of additional depositions. d. Other Issues i. Expert Designation The parties shall disclose expert witnesses in accordance with the Federal Rules of Civil Procedure and this Court’s local rules. Plaintiffs submit the following deadlines: July 30, 2015 for plaintiffs and September 28, 2015 for defendants.

Defendants submit the following

deadlines: March 16, 2015 for plaintiffs and May 18, 2015 for defendants.

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ii. Dispositive and Daubert Motions The parties anticipate filing dispositive and Daubert motions. dispositive and Daubert motion deadline of December 17, 2015.

Plaintiffs propose a Defendants propose a

dispositive and Daubert motion deadline of June 15, 2015, with the remaining briefing schedule to be determined by E.D. Wis. Civil L.R. 7 and 56. Defendants anticipate that briefs in excess of the page limitations set forth in the Local Rules may be required and will seek leave of the Court for permission to file such briefs, as necessary. iii. Trial Plaintiffs anticipate a trial lasting four to six weeks, while defendants believe the trial will last three to four weeks. Plaintiffs request a trial date on or around March 14, 2016. Defendants request a trial date on or around September 1, 2015. iv. Settlement The parties have not participated in settlement discussions at this time. The parties are willing to participate in mediation with a private mediator. If mediation is ordered in this case, plaintiffs propose a mediation deadline of February 5, 2016 and defendants propose a mediation deadline of June 15, 2015. v. Other orders The parties have stipulated that the City of Racine does not intend to move to dismiss the Amended Complaint; as such, it may file its answer on or before the deadline for any defendant to file an answer set by the Court upon issuance of its decision on the filed Motions to Dismiss the Amended Complaint or, in the event that the Court does not set a deadline, fourteen (14) days after notice of the Court’s decision.

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V.

PROPOSED SCHEDULING DATES a. Initial Disclosures: i. Plaintiffs’ proposal: On or about November 3, 2014 ii. Defendants' proposal: The later of November 3, 2014 or twenty-one (21) days after issuance of the Court’s decision on the pending Motions to Dismiss. b. Amendment of Pleadings: On or about December 1, 2014 c. Plaintiffs’ Designation of Expert Witnesses: i. Plaintiffs’ proposal: On or about July 30, 2015 ii. Defendants’ proposal: On or about March 16, 2015 d. Defendants’ Designation of Expert Witnesses: i. Plaintiffs’ proposal: On or about September 28, 2015 ii. Defendants’ proposal: On or about May 18, 2015 e. Discovery Deadline: i. Plaintiffs’ proposal: On or about February 17, 2016 ii. Defendants’ proposal: On or about August 3, 2015 f. Dispositive and Daubert Motions: i. Plaintiffs’ proposal: On or about December 17, 2015 ii. Defendants’ proposal: On or about June 15, 2015 g. Mediation: i. Plaintiffs’ proposal: On or about February 5, 2016 ii. Defendants’ proposal: On or about June 15, 2015 h. Final Pretrial: i. Plaintiffs’ proposal: On or about February 5, 2016

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ii. Defendants’ proposal: On or about August 17, 2015 i. Trial: i. Plaintiffs’ proposal: approximately 4-6 weeks starting on or about March 14, 2016 ii. Defendants’ proposal: September 1, 2015

Dated September 23, 2014.

approximately 3-4 weeks starting on or about

Respectfully submitted, KOHLER & HART, S.C. By:

/s/ Martin E. Kohler, Esq. Martin E. Kohler State Bar No. 1016725 mekohler@kohlerandhart.com Attorney for Plaintiffs 735 N. Water Street, Suite 1212 Milwaukee, Wisconsin 53202 (414) 271-9595

SEGAL MCCAMBRIDGE MAHONEY, LTD. By:

SINGER

&

/s/ Steven A. Hart, Esq. Steven A. Hart IL State Bar No. 6211008 shart@smsm.com Attorney for Plaintiffs 233 S. Wacker Dr., Suite 5500 Chicago, Illinois 60606 (312) 645-7800

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MEISSNER TIERNEY FISHER & NICHOLS, S.C. By:

/s/ Michael J. Cohen, Esq. Michael J. Cohen State Bar No. 1017787 mjc@mtfn.com Jennifer A.B. Kreil State Bar No. 1047210 jbk@mtfn.com Attorneys for Defendants: City of Racine, John Dickert, Gary E. Becker, Kurt S. Wahlen, James Kaplan, Gregory T. Helding, David L. Maack, Aron M. Wisneski, Robert E. Mozol, Devin P. Sutherland, Mark L. Levine and Joseph G. LeGath.

HOSTAK HENZL & BICHLER, S.C. By:

/s/ Thomas M. Devine, Esq. Thomas M. Devine State Bar No. 1017536 tdevine@hhb.com Jennifer O. Hemmer State Bar No. 1091279 jhemmer@hhb.com Attorneys for Defendants: Monte Osterman, Mary Osterman and Douglas Nicholson

WILSON ELSER MOSKOWITZ EDELMAN & DICKER LLP By:

/s/ Kevin A. Christensen, Esq. Kevin A. Christensen State Bar No. 1011760 kevin.christensen@wilsonelser.com Christina A. Katt State Bar No. 1073979 christina.katt@wilsonelser.com Attorneys for Defendant Devin Sutherland

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GODFREY & KAHN, S.C. By:

/s/ Daniel C.W. Narvey, Esq. Daniel C.W. Narvey State Bar No. 1086860 dnarvey@gklaw.com Sean O. Bosack State Bar No. 1029661 sbosack@gklaw.com 708 N. Water Street Milwaukee, WI 53202-3590 (414) 273-3500 Attorneys for Defendant Racine City Tavern League, Inc.

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