meet-and-confer-letter-second.docx

1005-00004 · Nexford Industrial Holdings · Correspondence

meet-and-confer-letter-second.docx DOCUMENT Funds

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CALDERWOOD & HARKNESS LLP Attorneys at Law 227 West Monroe Street, Suite 3600 Chicago, Illinois 60606 Telephone: (312) 555-4200 Facsimile: (312) 555-4201 www.calderwoodharkness.com

November 28, 2022

Via U.S. First Class Mail and Email (ghess@hessloughlin.com)

Gerald P. Hess, Esq. Hess & Loughlin, P.C. 3412 Harlem Avenue, Suite 205 Berwyn, IL 60402

Re: Maciejewski v. Nexford Industrial Holdings Inc., Case No. 2022-L-002847; Circuit Court of Cook County, Illinois, County Department, Law Division — Second Meet-and-Confer Correspondence Regarding Plaintiff's Outstanding discovery Obligations

Dear Mr. Hess:

This letter is the second written correspondence from the undersigned on behalf of Defendant Nexford Industrial Holdings Inc. ("Nexford" or "Defendant") regarding the continuing and complete failure of Plaintiff Darren K. Maciejewski ("Plaintiff") to respond to Nexford's outstanding written discovery in the above-captioned matter. This letter follows the detailed correspondence I sent to you on November 3, 2022, which set forth the same deficiencies described herein and requested that you contact our office to meet and confer regarding the resolution of Plaintiff's discovery default within fourteen (14) days of that letter's date. I am compelled to write again because, as of the date of this letter, Calderwood & Harkness LLP has received no response whatsoever to the November 3, 2022 letter — no written reply, no telephone call, no email, and no other form of communication from you, your firm, or anyone acting on Plaintiff's behalf. The fourteen-day period established in the November 3, 2022 letter for a meet-and-confer conference has now expired without any communication from Hess & Loughlin, P.C.

The purpose of this second letter is to reiterate Nexford's demand for immediate compliance with Plaintiff's outstanding discovery obligations, to place Plaintiff and his counsel on formal notice of the consequences that will follow if compliance is not forthcoming, and to make one final good-faith effort to resolve this dispute without the necessity of judicial intervention.

I. Plaintiff's Complete discovery Default

As detailed in the November 3, 2022 letter and reiterated here for the record, on July 1, 2022, Nexford served upon Plaintiff, through your office, Defendant Nexford Industrial Holdings Inc.'s First Set of Interrogatories to Plaintiff (consisting of ten (10) interrogatories) and Defendant Nexford Industrial Holdings Inc.'s First Request for Production of Documents to Plaintiff (consisting of eighteen (18) requests for production). Under the applicable provisions of the Illinois Supreme Court Rules, Plaintiff's responses to both sets of discovery were due on or about August 1, 2022 — that is, within twenty-eight (28) days of service, with additional time for service by mail as applicable.

As of the date of this letter — November 28, 2022, nearly four months past the response deadline — Plaintiff has not served any responses, any objections, or any other communication of any kind regarding these discovery obligations. Plaintiff has not requested an extension of time in which to respond. Plaintiff has not identified any basis for withholding responsive documents or information. Plaintiff has not served a privilege log or any other document indicating that any responsive materials are being withheld on the basis of privilege or work-product protection. In short, Plaintiff has done absolutely nothing to fulfill his obligations under the Illinois Supreme Court Rules with respect to Nexford's First Set of Interrogatories and First Request for Production of Documents. This constitutes a complete discovery default by Plaintiff.

II. Communication Breakdown with Plaintiff's Counsel

The failure to respond to Nexford's written discovery is compounded by the breakdown in communications between our respective offices. The last substantive communication received by Calderwood & Harkness LLP from you was an email dated October 14, 2022, in which you acknowledged receipt of Nexford's discovery responses, which had been served by our office on June 24, 2022. Notably, your October 14, 2022 email did not address or even reference Plaintiff's own overdue discovery responses, and it did not provide any explanation — whether based on logistical difficulties, client unavailability, or otherwise — for the nearly three-month delay that had already accrued at that time.

Since October 14, 2022, you have not responded to any communications from this office. Specifically, you have not responded to the November 3, 2022 meet-and-confer letter. You have not responded to the follow-up voicemail message I left with your office on November 10, 2022. You have not responded to my email of November 17, 2022, which reiterated the request for a meet-and-confer discussion. The absence of any response from Plaintiff's counsel over the course of more than six weeks — during which discovery deadlines continue to approach — is deeply troubling and has left Nexford with no alternative but to prepare for judicial intervention.

III. Prejudice to Nexford and the Court's Scheduling Order

Plaintiff's discovery default is not occurring in a vacuum. It is causing direct and measurable prejudice to Nexford's ability to prepare its defense and to comply with the deadlines established by the Court.

At the Initial Case Management Conference held on April 28, 2022, before the Honorable Judge Helena R. Vasquez-Torres, the Court established a discovery schedule for this matter. Under that schedule, the deadline for the close of all fact discovery is December 15, 2022 — less than three weeks from the date of this letter. Expert disclosures are due January 15, 2023, and expert discovery is set to close on March 1, 2023. Plaintiff's complete failure to respond to Nexford's written discovery directly impairs Nexford's ability to identify and evaluate the factual bases for Plaintiff's claims, to assess the documentary evidence in Plaintiff's possession, custody, or control, and to prepare for depositions and expert discovery in a manner consistent with the Court's scheduling order. Without Plaintiff's interrogatory responses and document production, Nexford is unable to complete its own fact investigation, to identify and retain appropriate expert witnesses with full knowledge of the relevant facts, or to meet the expert disclosure deadline in a meaningful manner.

It bears emphasis that Nexford has fully complied with its own discovery obligations in this matter. On June 24, 2022 — well within the applicable response period — Nexford served timely and complete responses and objections to Plaintiff's First Set of Interrogatories to Defendant and Plaintiff's First Request for Production of Documents to Defendant. In connection with those responses, Nexford produced eight hundred forty-seven (847) pages of documents, Bates-stamped NIH-000001 through NIH-000847. Nexford's compliance with its obligations stands in stark contrast to Plaintiff's complete disregard of his own.

IV. Demand for Immediate Compliance

Nexford hereby demands that Plaintiff serve complete, verified responses to Defendant Nexford Industrial Holdings Inc.'s First Set of Interrogatories (all ten (10) interrogatories) and complete responses, including the production of all responsive documents, to Defendant Nexford Industrial Holdings Inc.'s First Request for Production of Documents (all eighteen (18) requests) within fourteen (14) days of the date of this letter — i.e., no later than Monday, December 12, 2022. Responses to interrogatories must be verified by Plaintiff under oath, as required by Illinois Supreme Court Rule 213. Document responses must include the production of all responsive, non-privileged documents in Plaintiff's possession, custody, or control, and if any documents are withheld on the basis of privilege or work-product protection, a privilege log compliant with Illinois Supreme Court Rule 201(n) must be served concurrently with the document production.

V. Notice of Intent to Seek Judicial Intervention, Including Sanctions

Please be advised that if Plaintiff fails to serve complete responses to both Nexford's First Set of Interrogatories and First Request for Production of Documents within the fourteen-day period set forth above, Nexford will promptly file a Motion to Compel discovery responses with the Circuit Court of Cook County. In connection with any such motion, Nexford will also seek sanctions against Plaintiff and/or Plaintiff's counsel pursuant to all applicable provisions of the Illinois Supreme Court Rules, including but not limited to Illinois Supreme Court Rule 219(c), as well as any other applicable rules and statutes. Among the sanctions Nexford will seek is an award of all reasonable attorneys' fees and costs incurred by Nexford in connection with the efforts to obtain Plaintiff's overdue discovery responses, including the costs of preparing and sending the November 3, 2022 letter, this letter, and all related communications, as well as the costs of preparing and arguing the Motion to Compel.

In addition to attorneys' fees and costs, Nexford expressly reserves all rights and remedies available under the Illinois Supreme Court Rules and the Illinois Code of Civil Procedure, 735 ILCS 5/1-101 et seq., including but not limited to: (a) seeking an order barring Plaintiff from introducing evidence, documents, or testimony on matters within the scope of the unanswered discovery at trial or in connection with any dispositive motion; (b) seeking an order striking Plaintiff's pleadings in whole or in part; and (c) seeking dismissal of Plaintiff's claims, with prejudice, as a sanction for Plaintiff's willful and continuing discovery abuse. Nexford does not make these statements lightly and would strongly prefer to resolve this matter without the necessity of court involvement. However, Plaintiff's complete and prolonged failure to participate in the discovery process, coupled with the absence of any communication from Plaintiff's counsel, leaves Nexford with no viable alternative.

VI. Preservation of Rights

This letter is sent in a good-faith effort to resolve the current discovery dispute without court intervention, consistent with the meet-and-confer obligations imposed by the Illinois Supreme Court Rules, including Illinois Supreme Court Rule 201(k). Nothing in this letter, and no prior or subsequent communication regarding these matters, shall be construed as a waiver by Nexford of any right, claim, defense, objection, privilege, or protection in this matter. By raising the foregoing issues, Nexford does not limit or waive its ability to raise additional grounds for relief in any motion filed with the Court.

VII. Request for Immediate Response

Mr. Hess, I strongly urge you to contact the undersigned immediately upon receipt of this letter to discuss the status of Plaintiff's discovery responses and to arrange for the prompt production of all outstanding discovery. Resolution of this matter through cooperation between counsel is far preferable to motion practice, and Nexford remains willing to engage in a reasonable meet-and-confer discussion if you are prepared to do so. However, Nexford cannot and will not continue to wait indefinitely for a response that has not been forthcoming for nearly two months.

Please contact me at your earliest convenience at the telephone number and email address below:

Nadia Petrov Direct Telephone: (312) 555-4218

Email: npetrov@calderwoodharkness.com

I trust that this matter can be resolved promptly and without the need for judicial intervention.

Sincerely,

CALDERWOOD & HARKNESS LLP

By: ________

Nadia Petrov 227 West Monroe Street, Suite 3600 Chicago, Illinois 60606 Telephone: (312) 555-4218

Email: npetrov@calderwoodharkness.com

cc: Bernard Crawford, Esq., Calderwood & Harkness LLP

Tara Svendsen, General Counsel, Nexford Industrial Holdings Inc., 500 Commerce Drive, Suite 400, Schaumburg, IL 60173

CALDERWOOD & HARKNESS LLP Attorneys at Law 227 West Monroe Street, Suite 3600 Chicago, Illinois 60606 Telephone: (312) 555-4200 Facsimile: (312) 555-4201 www.calderwoodharkness.com
November 28, 2022
Via U.S. First Class Mail and Email (ghess@hessloughlin.com)
Gerald P. Hess, Esq. Hess & Loughlin, P.C. 3412 Harlem Avenue, Suite 205 Berwyn, IL 60402
Re: Maciejewski v. Nexford Industrial Holdings Inc., Case No. 2022-L-002847; Circuit Court of Cook County, Illinois, County Department, Law Division — Second Meet-and-Confer Correspondence Regarding Plaintiff's Outstanding discovery Obligations
Dear Mr. Hess:
This letter is the second written correspondence from the undersigned on behalf of Defendant Nexford Industrial Holdings Inc. ("Nexford" or "Defendant") regarding the continuing and complete failure of Plaintiff Darren K. Maciejewski ("Plaintiff") to respond to Nexford's outstanding written discovery in the above-captioned matter. This letter follows the detailed correspondence I sent to you on November 3, 2022, which set forth the same deficiencies described herein and requested that you contact our office to meet and confer regarding the resolution of Plaintiff's discovery default within fourteen (14) days of that letter's date. I am compelled to write again because, as of the date of this letter, Calderwood & Harkness LLP has received no response whatsoever to the November 3, 2022 letter — no written reply, no telephone call, no email, and no other form of communication from you, your firm, or anyone acting on Plaintiff's behalf. The fourteen-day period established in the November 3, 2022 letter for a meet-and-confer conference has now expired without any communication from Hess & Loughlin, P.C.
The purpose of this second letter is to reiterate Nexford's demand for immediate compliance with Plaintiff's outstanding discovery obligations, to place Plaintiff and his counsel on formal notice of the consequences that will follow if compliance is not forthcoming, and to make one final good-faith effort to resolve this dispute without the necessity of judicial intervention.
I. Plaintiff's Complete discovery Default
As detailed in the November 3, 2022 letter and reiterated here for the record, on July 1, 2022, Nexford served upon Plaintiff, through your office, Defendant Nexford Industrial Holdings Inc.'s First Set of Interrogatories to Plaintiff (consisting of ten (10) interrogatories) and Defendant Nexford Industrial Holdings Inc.'s First Request for Production of Documents to Plaintiff (consisting of eighteen (18) requests for production). Under the applicable provisions of the Illinois Supreme Court Rules, Plaintiff's responses to both sets of discovery were due on or about August 1, 2022 — that is, within twenty-eight (28) days of service, with additional time for service by mail as applicable.
As of the date of this letter — November 28, 2022, nearly four months past the response deadline — Plaintiff has not served any responses, any objections, or any other communication of any kind regarding these discovery obligations. Plaintiff has not requested an extension of time in which to respond. Plaintiff has not identified any basis for withholding responsive documents or information. Plaintiff has not served a privilege log or any other document indicating that any responsive materials are being withheld on the basis of privilege or work-product protection. In short, Plaintiff has done absolutely nothing to fulfill his obligations under the Illinois Supreme Court Rules with respect to Nexford's First Set of Interrogatories and First Request for Production of Documents. This constitutes a complete discovery default by Plaintiff.
II. Communication Breakdown with Plaintiff's Counsel
The failure to respond to Nexford's written discovery is compounded by the breakdown in communications between our respective offices. The last substantive communication received by Calderwood & Harkness LLP from you was an email dated October 14, 2022, in which you acknowledged receipt of Nexford's discovery responses, which had been served by our office on June 24, 2022. Notably, your October 14, 2022 email did not address or even reference Plaintiff's own overdue discovery responses, and it did not provide any explanation — whether based on logistical difficulties, client unavailability, or otherwise — for the nearly three-month delay that had already accrued at that time.
Since October 14, 2022, you have not responded to any communications from this office. Specifically, you have not responded to the November 3, 2022 meet-and-confer letter. You have not responded to the follow-up voicemail message I left with your office on November 10, 2022. You have not responded to my email of November 17, 2022, which reiterated the request for a meet-and-confer discussion. The absence of any response from Plaintiff's counsel over the course of more than six weeks — during which discovery deadlines continue to approach — is deeply troubling and has left Nexford with no alternative but to prepare for judicial intervention.
III. Prejudice to Nexford and the Court's Scheduling Order
Plaintiff's discovery default is not occurring in a vacuum. It is causing direct and measurable prejudice to Nexford's ability to prepare its defense and to comply with the deadlines established by the Court.
At the Initial Case Management Conference held on April 28, 2022, before the Honorable Judge Helena R. Vasquez-Torres, the Court established a discovery schedule for this matter. Under that schedule, the deadline for the close of all fact discovery is December 15, 2022 — less than three weeks from the date of this letter. Expert disclosures are due January 15, 2023, and expert discovery is set to close on March 1, 2023. Plaintiff's complete failure to respond to Nexford's written discovery directly impairs Nexford's ability to identify and evaluate the factual bases for Plaintiff's claims, to assess the documentary evidence in Plaintiff's possession, custody, or control, and to prepare for depositions and expert discovery in a manner consistent with the Court's scheduling order. Without Plaintiff's interrogatory responses and document production, Nexford is unable to complete its own fact investigation, to identify and retain appropriate expert witnesses with full knowledge of the relevant facts, or to meet the expert disclosure deadline in a meaningful manner.
It bears emphasis that Nexford has fully complied with its own discovery obligations in this matter. On June 24, 2022 — well within the applicable response period — Nexford served timely and complete responses and objections to Plaintiff's First Set of Interrogatories to Defendant and Plaintiff's First Request for Production of Documents to Defendant. In connection with those responses, Nexford produced eight hundred forty-seven (847) pages of documents, Bates-stamped NIH-000001 through NIH-000847. Nexford's compliance with its obligations stands in stark contrast to Plaintiff's complete disregard of his own.
IV. Demand for Immediate Compliance
Nexford hereby demands that Plaintiff serve complete, verified responses to Defendant Nexford Industrial Holdings Inc.'s First Set of Interrogatories (all ten (10) interrogatories) and complete responses, including the production of all responsive documents, to Defendant Nexford Industrial Holdings Inc.'s First Request for Production of Documents (all eighteen (18) requests) within fourteen (14) days of the date of this letter — i.e., no later than Monday, December 12, 2022. Responses to interrogatories must be verified by Plaintiff under oath, as required by Illinois Supreme Court Rule 213. Document responses must include the production of all responsive, non-privileged documents in Plaintiff's possession, custody, or control, and if any documents are withheld on the basis of privilege or work-product protection, a privilege log compliant with Illinois Supreme Court Rule 201(n) must be served concurrently with the document production.
V. Notice of Intent to Seek Judicial Intervention, Including Sanctions
Please be advised that if Plaintiff fails to serve complete responses to both Nexford's First Set of Interrogatories and First Request for Production of Documents within the fourteen-day period set forth above, Nexford will promptly file a Motion to Compel discovery responses with the Circuit Court of Cook County. In connection with any such motion, Nexford will also seek sanctions against Plaintiff and/or Plaintiff's counsel pursuant to all applicable provisions of the Illinois Supreme Court Rules, including but not limited to Illinois Supreme Court Rule 219(c), as well as any other applicable rules and statutes. Among the sanctions Nexford will seek is an award of all reasonable attorneys' fees and costs incurred by Nexford in connection with the efforts to obtain Plaintiff's overdue discovery responses, including the costs of preparing and sending the November 3, 2022 letter, this letter, and all related communications, as well as the costs of preparing and arguing the Motion to Compel.
In addition to attorneys' fees and costs, Nexford expressly reserves all rights and remedies available under the Illinois Supreme Court Rules and the Illinois Code of Civil Procedure, 735 ILCS 5/1-101 et seq., including but not limited to: (a) seeking an order barring Plaintiff from introducing evidence, documents, or testimony on matters within the scope of the unanswered discovery at trial or in connection with any dispositive motion; (b) seeking an order striking Plaintiff's pleadings in whole or in part; and (c) seeking dismissal of Plaintiff's claims, with prejudice, as a sanction for Plaintiff's willful and continuing discovery abuse. Nexford does not make these statements lightly and would strongly prefer to resolve this matter without the necessity of court involvement. However, Plaintiff's complete and prolonged failure to participate in the discovery process, coupled with the absence of any communication from Plaintiff's counsel, leaves Nexford with no viable alternative.
VI. Preservation of Rights
This letter is sent in a good-faith effort to resolve the current discovery dispute without court intervention, consistent with the meet-and-confer obligations imposed by the Illinois Supreme Court Rules, including Illinois Supreme Court Rule 201(k). Nothing in this letter, and no prior or subsequent communication regarding these matters, shall be construed as a waiver by Nexford of any right, claim, defense, objection, privilege, or protection in this matter. By raising the foregoing issues, Nexford does not limit or waive its ability to raise additional grounds for relief in any motion filed with the Court.
VII. Request for Immediate Response
Mr. Hess, I strongly urge you to contact the undersigned immediately upon receipt of this letter to discuss the status of Plaintiff's discovery responses and to arrange for the prompt production of all outstanding discovery. Resolution of this matter through cooperation between counsel is far preferable to motion practice, and Nexford remains willing to engage in a reasonable meet-and-confer discussion if you are prepared to do so. However, Nexford cannot and will not continue to wait indefinitely for a response that has not been forthcoming for nearly two months.
Please contact me at your earliest convenience at the telephone number and email address below:
Nadia Petrov Direct Telephone: (312) 555-4218
Email: npetrov@calderwoodharkness.com
I trust that this matter can be resolved promptly and without the need for judicial intervention.
Sincerely,
CALDERWOOD & HARKNESS LLP
By: ________
Nadia Petrov 227 West Monroe Street, Suite 3600 Chicago, Illinois 60606 Telephone: (312) 555-4218
Email: npetrov@calderwoodharkness.com
cc: Bernard Crawford, Esq., Calderwood & Harkness LLP
Tara Svendsen, General Counsel, Nexford Industrial Holdings Inc., 500 Commerce Drive, Suite 400, Schaumburg, IL 60173

CALDERWOOD & HARKNESS LLP

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