Joint rule 26 report

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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

Case 2:14-cv-00208-JPS Filed 09/23/14 Page 1 of 15 Document 77

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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 third-

party 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. The Date of the Document;

2. The Type of Document (e.g., e-mail, memorandum, letter, etc.);

3. The Name of the Author(s);

4. The Name of the Recipient(s);

5. The Subject Matter of the Document; and

6. 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 thirty-

five (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. Plaintiffs propose a

dispositive and Daubert motion deadline of December 17, 2015. 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:


ii. Defendants’ proposal: On or about June 15, 2015

h. Final Pretrial:



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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: approximately 3-4 weeks starting on or about

September 1, 2015

Dated September 23, 2014. Respectfully submitted,

KOHLER & HART, S.C.

By: /s/ Martin E. Kohler, Esq.

Martin E. Kohler

State Bar No. 1016725

[email protected]

Attorney for Plaintiffs

735 N. Water Street, Suite 1212

Milwaukee, Wisconsin 53202

(414) 271-9595

SEGAL MCCAMBRIDGE SINGER &

MAHONEY, LTD.

By: /s/ Steven A. Hart, Esq.

Steven A. Hart

IL State Bar No. 6211008

[email protected]

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


[email protected]

Jennifer A.B. Kreil


[email protected]

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


[email protected]

Jennifer O. Hemmer


[email protected]

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


[email protected]

Christina A. Katt


[email protected]

Attorneys for Defendant Devin Sutherland


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GODFREY & KAHN, S.C.

By: /s/ Daniel C.W. Narvey, Esq.

Daniel C.W. Narvey


[email protected]

Sean O. Bosack


[email protected]

708 N. Water Street

Milwaukee, WI 53202-3590

(414) 273-3500

Attorneys for Defendant Racine City Tavern

League, Inc.


Documents

Joint rule 26 report