CALDERWOOD & HARKNESS LLP Attorneys at Law 227 West Monroe Street, Suite 3600 Chicago, Illinois 60606 Telephone: (312) 555-4200 Facsimile: (312) 555-4201
Email: info@calderwoodharkness.com
VIA U.S. MAIL AND EMAIL
November 3, 2022
Gerald P. Hess, Esq. Hess & Loughlin, P.C. 3412 Harlem Avenue, Suite 205 Berwyn, IL 60402
Re: Darren K. Maciejewski v. Nexford Industrial Holdings Inc. Case No. 2022-L-002847 Circuit Court of Cook County, Illinois, County Department, Law Division Plaintiff's Outstanding discovery Responses
Dear Mr. Hess:
I am an associate at Calderwood & Harkness LLP, and I write on behalf of our client, Defendant Nexford Industrial Holdings Inc. ("Nexford"), in connection with the above-captioned matter currently pending before the Honorable Judge Helena R. Vasquez-Torres in the Circuit Court of Cook County, Law Division. The purpose of this letter is to address Plaintiff Darren K. Maciejewski's failure to serve responses to Defendant's outstanding written discovery requests and to initiate a good-faith meet-and-confer regarding the same, consistent with the obligations imposed by the Illinois Supreme Court Rules and the local rules of the Circuit Court of Cook County governing the resolution of discovery disputes prior to the filing of any motion for judicial intervention.
As you are aware, on July 1, 2022, Nexford served on Plaintiff, through your office, the following written discovery requests:
1.  Defendant Nexford Industrial Holdings Inc.'s First Set of Interrogatories to Plaintiff, consisting of ten (10) interrogatories directed to Plaintiff pursuant to Illinois Supreme Court Rule 213; and
2.  Defendant Nexford Industrial Holdings Inc.'s First Request for Production of Documents to Plaintiff, consisting of eighteen (18) document requests directed to Plaintiff pursuant to Illinois Supreme Court Rule 214.
Under the applicable provisions of the Illinois Supreme Court Rules, Plaintiff's responses to each of the foregoing discovery requests were due on or before August 1, 2022 — that is, within twenty-eight (28) days of service. To date — now more than three months after the response deadline has passed — Nexford has not received any responses, objections, or any other correspondence whatsoever from your office regarding the status of Plaintiff's responses to these discovery requests. No extension of time to respond has been requested or agreed upon, and no motion for a protective order or other relief from the obligation to respond has been filed with the Court.
By contrast, I wish to note that Nexford has fully complied with its own discovery obligations in this matter. Specifically, on June 24, 2022, Nexford served its verified responses and objections to Plaintiff's First Set of Interrogatories, which consisted of fifteen (15) interrogatories, as well as its responses and objections to Plaintiff's First Request for Production of Documents, which consisted of thirty-two (32) document requests. In connection with those responses, Nexford produced a comprehensive document production comprising eight hundred forty-seven (847) pages of documents, Bates-stamped NIH-000001 through NIH-000847. These productions included, among other materials, Plaintiff's complete personnel file maintained by Nexford's Human Resources Department, Plaintiff's attendance and disciplinary records spanning the entirety of his employment, the Environmental Health and Safety ("EHS") Department's internal report regarding conditions in Building C at Nexford's Elgin, Illinois manufacturing facility, and relevant portions of the Nexford Employee Handbook in effect during the period of Plaintiff's employment. Your office acknowledged receipt of these materials via email dated October 14, 2022 — which constitutes the last substantive communication this office has received from you or anyone at Hess & Loughlin, P.C. in connection with this litigation. Notably, that email did not address or acknowledge the status of Plaintiff's own overdue discovery responses.
I write now with particular urgency in light of the discovery schedule established at the Initial Case Management Conference held on April 28, 2022, before Judge Vasquez-Torres. As set forth in the Court's Case Management Order entered on that date, the close of all fact discovery in this matter is December 15, 2022 — approximately six weeks from the date of this letter. Plaintiff's continued failure to respond to Defendant's discovery requests is materially prejudicial to Nexford's ability to prepare its defense and threatens to disrupt the orderly progression of this case under the Court's scheduling order. This concern is not abstract. Nexford's interrogatories and document requests seek information that is central to the claims and defenses at issue in this action, including, without limitation, detailed information regarding Plaintiff's alleged protected activities and the factual basis for his whistleblower retaliation claims, the circumstances surrounding and documentation related to Plaintiff's OSHA complaint (Complaint No. 1734892), the nature and computation of Plaintiff's claimed damages — which, as pled in the Complaint, include demands for back pay, front pay, emotional distress damages in the amount of $150,000, and punitive damages in the amount of $500,000 — Plaintiff's efforts to mitigate his damages following his separation from Nexford, and other matters directly relevant to the three counts asserted in Plaintiff's Complaint. Without Plaintiff's responses and supporting documentation, Nexford is unable to meaningfully evaluate these claims, identify relevant witnesses, or prepare for depositions that must be completed before the close of fact discovery.
In accordance with the obligation of the parties to engage in good-faith efforts to resolve discovery disputes before seeking judicial intervention, Nexford hereby requests that you contact the undersigned within fourteen (14) days of the date of this letter — that is, on or before November 17, 2022 — to arrange a meet-and-confer conference to discuss and resolve Plaintiff's failure to respond to Nexford's outstanding interrogatories and document requests. The specific purposes of the proposed conference will include identifying any impediments to Plaintiff's compliance with the discovery requests, addressing any objections Plaintiff may wish to assert, and establishing a definitive and binding timetable for the service of Plaintiff's complete responses and any accompanying document production. We are willing to conduct the meet-and-confer conference by telephone or in person at a mutually convenient time, and I am prepared to make myself available at your earliest convenience given the time-sensitive nature of this matter.
Please be advised that if Plaintiff fails to serve complete and verified responses to Defendant's outstanding discovery requests, or if this office does not hear from you within the fourteen-day period identified above, Nexford will have no alternative but to seek appropriate relief from the Court. Such relief may include, but is not limited to:
(a) filing a motion to compel Plaintiff's discovery responses pursuant to Illinois Supreme Court Rule 219(a);
(b) seeking sanctions against Plaintiff and/or Plaintiff's counsel for Plaintiff's discovery default, including an award of Nexford's reasonable attorneys' fees and costs incurred in connection with the motion practice necessitated by Plaintiff's noncompliance, pursuant to Illinois Supreme Court Rule 219(c) and any other applicable authority; and
(c) requesting such other and further relief as the Court may deem just and appropriate under the circumstances, including but not limited to an order barring Plaintiff from introducing evidence or testimony on matters covered by the unanswered discovery requests.
Nexford expressly reserves all rights and remedies available to it under the Illinois Supreme Court Rules, the Illinois Code of Civil Procedure (735 ILCS 5/1-101 et seq.), and the Court's inherent authority to manage and enforce compliance with its orders and the rules governing discovery.
We sincerely hope that this matter can be resolved cooperatively and without the need for motion practice. Discovery disputes of this nature are best addressed through direct communication between counsel, and we remain willing to work with your office to reach a reasonable resolution that respects both parties' interests and the Court's schedule. To that end, please do not hesitate to contact me directly to discuss this matter and to schedule the meet-and-confer conference at the earliest possible opportunity. I can be reached at the contact information set forth below. Given the approaching December 15, 2022 fact discovery close date, I respectfully request your prompt attention to this matter.
Very truly yours,
CALDERWOOD & HARKNESS LLP
By: ________
Nadia Petrov Associate 227 West Monroe Street, Suite 3600 Chicago, Illinois 60606 Direct: (312) 555-4218
Email: npetrov@calderwoodharkness.com
cc: Bernard Crawford, Esq., Calderwood & Harkness LLP (via email) cc: Tara Svendsen, General Counsel, Nexford Industrial Holdings Inc. (via email)