• Sandra Kostelny
  (312) 435-5609
  

• Mervin Myvett
  (312) 435-7573
  Room: 1726

• Robin Cozette

Upon assignment of cases by consent or referral to Magistrate Judge Schenkier, an initial status conference will be set by means of a minute order.

Consistent with the scope of the consent or referral, the Court will set discovery schedules, briefing schedules, and other deadlines and timetables at the initial status conference. Accordingly, the lead trial counsel for each party, or an attorney with substantial familiarity with and responsibility for the case, shall appear at the initial status conference and be prepared to discuss all aspects of the case.

Conference

In those cases in which the Court orders the parties to conduct a planning conference pursuant to Fed. R. Civ. P. 26(f), the Court will require the parties to file a joint report of the planning conference. The joint report must be filed in the format required by the Court under this standing order, which can be found at Planning Conference Report Format. The planning conference report format also will give the parties direction as to the matters the Court expects the parties to address during their planning conference.

The Court hears motions on Tuesday, Wednesday and Thursday at 8:30 a.m. The Court will normally set status calls on Tuesday, Wednesday and Thursday at 9:00 a.m.

The original and one copy of all motions must be filed no later than three business days before the day the motion is to be heard. A courtesy copy of the motion must be delivered to chambers (Room 1756) at the time the motion is filed with the Clerk’s Office. The body of any motion must state if the motion is joint, or if the other parties have authorized the movant to state that the parties either agree to the motion or have no objection to it.

Parties must include with their motion or any supporting memorandum copies of any cited authority that is published only on an electronic database, such as Westlaw and Lexis. Absent leave of Court, all memoranda of law must comply with the 15-page limitation set forth in Local Rule 7.1.

The Court requires compliance with Local Rule 5.2, which requires that “[a] judge’s paper copy shall be bound on the left side and shall include protruding tabs for exhibits. A list of exhibits must be provided for each document that contains more than one exhibit.”

Moving counsel may call chambers (312) 435-5609 or the courtroom deputy after 4:00 p.m. on the day immediately before the motion is scheduled to be heard to find out if an appearance will be required. Unless the Court has told a party it need not appear, counsel for all parties are expected to be present irrespective of whether the motion is agreed. If no appearance is required, moving counsel must so notify other counsel in the case; failure to do so may result in the award of fees incurred by other counsel who have appeared unnecessarily.

a. Discovery Motions

The Court believes that parties can and should work out most discovery disputes, and thus discourages the filing of discovery motions. The Court will not hear or consider any discovery motions unless the parties have complied with the meet and confer requirement under Local Rule 37.2. Any discovery motion must state with specificity when and how the movant complied with Local Rule 37.2.

Parties are reminded that compliance with Local Rule 37.2 requires a good faith effort to resolve discovery disputes and, other than in exceptional circumstances, communication that takes place face to face or by telephone. The mere exchange of correspondence will not normally be sufficient to comply with Local Rule 37.2

All parties must be fully prepared to orally argue any discovery motion on the date that it is presented. The Court most often will decide discovery motions after oral argument at the motion call and without briefing. If after argument the Court believes that the motion requires briefing, the Court normally will set an expedited briefing schedule so that the matter can be resolved promptly.

The Court reminds the parties that there is no "order" or sequence in which discovery must take place; thus, one party’s alleged failure or inability to respond to discovery will not excuse any other party’s prompt compliance with discovery requests. The Court also reminds parties that the pendency of a motion, such as a motion to dismiss, does not – absent court order – operate as a stay of discovery.

b. Other Motions

The meet and confer requirement can have the same salutary effect on other disputes that it has in connection with discovery disputes. A candid discussion between the parties prior to filing motions to dismiss, motions for summary judgment, motions in limine and the like can limit the scope of such motions or eliminate the need for them to be filed at all.

Thus, the Court will apply the meet and confer requirement not just to discovery motions, but to all motions that a party wishes to file. The comments above concerning what must be done to comply with the meet and confer requirement will be applied with equal force, and in the same way, with respect to all other motions.

In particular, with respect to any motions for summary judgment, the Court requires the moving party to advise the opposing party in a short letter (e.g., 2-3 pages) of the basis for the motion (including relevant legal authority). Do not file the letter with the Court. The Court requires the moving party and the opposing party to meet and confer, during which time the opposing party should advise the moving party of factual matter or legal authority that it believes would defeat the motion. After this consultation, if the movant still wishes to file the motion, the movant should do so and the Court will address it. Any motion must state with specificity what the parties did to comply with the meet and confer requirement.

The Court will dispense with its three-day notice requirement only in connection with emergency motions. To qualify as an "emergency," a motion must arise from an unforseen circumstance that arises suddenly and unexpectedly, and that requires immediate action in order to avoid serious or irreparable harm to one or more of the parties. Motions for extension of time for filing, or for continuances of deadlines or other dates previously set by the Court, are highly unlikely to qualify as "emergencies." In the event a party seeks to present an emergency motion, that party must inform the courtroom deputy prior to filing the motion of the general nature of the motion and the reason that it requires emergency treatment, so that it can be determined if emergency treatment is appropriate. A party seeking to present an emergency motion must make all reasonable efforts to provide the opposing party with actual notice of the motion.

1. All materials sought to be protected from public disclosure must be described in sufficient detail to justify such protection (e.g., "trade secrets," "personnel files"). Parties cannot and will not be given total discretion to mark whatever material they chose to be protected or Confidential, or to have all discovery blanketly treated as confidential. See Citizens First National Bank of Princeton v. Cincinnati Insurance Co., 178 F.3d 943, 946 (7^th Cir. 1999).

Any protective order submitted to the Court for approval must, at a minimum, contain the following: a carefully-drafted definition of materials to be protected, that is consistent with the Seventh Circuit’s description of what is protectable; a statement that the designation of material is confidential reflects a good faith determination by counsel (not by the client) that the material falls within the definition of confidential materials under the protective order; an explicit statement of the right of a party or interested member of the public to challenge the confidential designation of particular documents that have been filed under seal, with the party asserting confidentiality having the burden of demonstrating the propriety of that designation; a listing of the persons who may have access to materials designated as confidential; a procedure for the use of confidential documents at depositions; and a statement providing that the order shall not be construed to govern or affect the admissibility or use of any confidential material at trial or hearing in open court, with any requests for confidentiality or sealing of any hearing or trial to be made to the judge presiding over that proceeding.

The foregoing are minimum requirements. Counsel should anticipate any additional possible areas of future disputes and attempt to set out agreed procedures in advance to deal with them, appropriate to the nature of the case.

The Court will not require the inclusion of an express finding of good cause and protective orders. Instead, the Court will review such orders carefully before signing them. The Court’s issuance of the protective order will constitute the determination, as required by Fed. R. Civ. P. 26(c), that good cause exists for the issuance of the order. However, issuance of any protective order will not be given preclusive effect as a determination of good cause for Rule 26(c) purposes if, at a future time, a party or an interested member of the public moves for relief from the limitations of the protective order. In the event of such a motion, the Court will engage in an appropriate assessment of the interest between privacy and public access to make a determination of good cause as to the challenged document(s) in light of the facts then before the Court. See Jepsen, Inc. v. Makita Elec. Works, Ltd., 30 F.3d 854, 859 (7^th Cir. 1994).

2. Please note that under Local Rule 26.2, no documents may be filed under seal without a prior order of the Court specifying the particular document to be filed. As an alternative to filing under seal, LR 26.2 allows individual judges, at their discretion, to order parties to retain copies of confidential documents in lieu of filing them with the Clerk of Court, to file a redacted copy with the Clerk of Court, and to provide the judge with a complete copy for in camera use. In referral cases, Judge Schenkier will enforce the practice of the referring district judge. In consent cases, Judge Schenkier will consider using the alternative option permitted by LR 26.2 in appropriate cases.
   
   
3. Use of Medical Records in Litigation. The Court reminds counsel that the Health Insurance Portability and Accountability Act of 1996 (HIPAA) and its regulations create a procedure for obtaining authority to use medical records in litigation, including requesting a qualified protective order. 45 C.F.R. § 164.512(e). A “qualified protective order” means an order that: (1) prohibits the parties from using or disclosing the protected health information for any purpose other than the litigation for which such information was requested and (2) requires the return to the covered entity or destruction of the protected health information (including all copies made) at the end of the litigation. 45 C.F.R. § 164.512(e)(1)(v).

In the event that a party withholds otherwise discoverable information on the ground of privilege, the withholding party generally must provide a log of the documents withheld on the ground of privilege. See Fed. R. Civ. P. 26(b)(5) and Advisory Committee Comments to 1993 Amendments. Any privilege log must be detailed enough to enable other parties to assess the applicability of the privilege asserted, and should include: (1) the name and capacity of each individual from whom or to whom a document and any attachments were sent (including which persons are lawyers); (2) the date of the document and any attachments; (3) the type of document; (4) the Bates numbers of the documents, (5) the nature of the privilege asserted; and (6) a description of the subject matter in sufficient detail to determine if legal advice was sought or revealed, or if the document constitutes work product;. See Allendale Mut. Ins. Co. v. Bull Data Systems, Inc., 145 F.R.D. 84, 88 (N.D. Ill. 1992).

The Court reminds the parties that the meet and confer requirements of Local Rule 37.2 apply to privilege disputes, just as they do to other discovery disputes.

The Supreme Court has recognized that properly grounded summary judgment motions can have the salutary effect of focusing and/or reducing the issues for trial, or of avoiding unnecessary trials altogether. At the same time, inadequately grounded or premature summary judgment motions have the untoward effect of delaying the progress of a lawsuit and increasing its cost. Moreover, the Court has observed that summary judgment motions are at times filed without sufficient consideration being given to other vehicles for achieving a prompt resolution of particular issues or the entire case. Accordingly, if after meeting and conferring as outlined above a party wishes to file a summary judgment motion, that party must first seek leave of Court.

The Court requires strict compliance with Local General Rules 56.1(a) and 56.1(b) in the briefing of all summary judgment motions. In addition, to assist the Court in reviewing the factual record submitted in connection with summary judgment motions, the Court requires the following:

A courtesy copy of the memorandum of law, depositions and other materials relied upon in support of the motion (as required by Local Rule 56.1(a)(1)-(3)) or in opposition to the motion (as required by Local Rule 56.1(b)(1)-(3)) must be delivered to chambers the same day the original is filed in the Clerk’s office. The courtesy copy of the compendium must be securely bound, must separately tab each document, and must contain an index identifying what document is contained under each tab.

All statements of undisputed material facts offered by the moving party under Local Rule 56.1(a)(3), or statements of additional facts offered by the responding party under Local Rule 56.1(b)(3), must list the facts in short, numbered paragraphs that refrain from argument. Argument must be reserved for the moving party’s memorandum of law. Each numbered fact statement must contain a specific citation to affidavits, depositions or other materials that support the fact statement, as well as to the tab(s) in the compendium where those materials may be found. Failure to provide support for a statement of fact may result in that alleged "fact" being disregarded.

All responses to statements of undisputed material facts offered by the responding party under Local Rule 56.1(b)(3), or responses to statements of additional facts offered by the moving party under Local Rule 56.1(a), shall be in a format similar to that used in answering a complaint: that is, the response must repeat each numbered paragraph of the fact statement, and then immediately following each numbered statement must state whether the alleged fact is "undisputed" or "disputed." As with the fact statements submitted under Rule 56.1(a)(3) and 56.1(b)(3), the responses to those fact statements must refrain from argument. The significance or lack of significance of a disputed or undisputed fact may be argued in the respondent’s legal memorandum. If a particular fact is "undisputed," nothing more should be said in the response. If a particular fact assertion is "disputed" in whole or in part, the response must state what part of the assertion is disputed and must contain a specific citation to the supporting affidavits, depositions or other materials as well as to the tab(s) in the compendium where those materials may be found. Failure to provide support for an alleged fact dispute may result in that fact being deemed admitted.

In accord with Local Rule 56.1, absent prior leave of Court, a movant shall not file more than 80 separately numbered statements of undisputed material fact, and a party responding to a summary judgment motion shall not file more than 40 separately numbered statements of additional facts under Local Rule 56.1(b)(3)(B). The Court reminds parties that the fact statements under Local Rule 56.1(a)(3) and Local Rule 56.1(b)(3)(B) “shall consist of short numbered paragraphs.”

The Court has prepared a Standing Order setting forth its settlement conference procedures. That Standing Order may be obtained from this website or from the courtroom deputy. Counsel and their clients must read and follow the procedures in that Standing Order prior to any settlement conference with the Court.

Instructions for Settlement Conference

The Court has prepared a Standing Order setting forth the form of Final Pretrial Order and other trial preparation procedures that it will normally use in consent cases. That Standing Order may be obtained from this website or from the courtroom deputy. The form of Final Pretrial Order used by the Court varies in certain regards from the form set forth in Local Rule 16.1. Counsel must read and follow the requirements in that Standing Order when filing a Final Pretrial Order in a consent case before the Court. The Court uses certain standard voir dire questions and jury instructions, which are available on this website. Parties also should consult the Federal Civil Jury Instructions of the Seventh Circuit, which are available on this website, for instructions that may be applicable to their case.

Preparation of Final Pretrial Order and Other Trial Materials

Standard Voir Dire Questions

Standard Preliminary Jury Instructions

Standard Final Jury Instructions

Proposed Orders are technically not to be "filed." Rather, they are to be "submitted" to the judge to consider, to modify, if appropriate, and to enter electronically. For example, proposed orders such as stipulated protective orders require court approval before actually being given full effect. To prevent confusion, such proposed orders must be attached to an e-mail sent to the e-mail address of the assigned judge, Proposed_Order_Schenkier@ilnd.uscourts.gov  The subject line of the e-mail must include the case number and name, the docket number of the corresponding motion, if any, and the title of the order that is proposed as indicated on the Notice of Electronic Filing (NEF). All such documents must be submitted to the court in a format compatible with WordPerfect, which is a "Save As" option in most word processing software. Such proposed orders should also be served on all parties.