Benson et al v. The City of Chicago et al

RESPONSE

N.D. Ill.June 3, 2011

1 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION ILLINOIS ASSOCATION OF FIREARMS ) RETAILERS , KENNETH PACHOLSKI, ) KATHRYN TYLER, and MICHAEL HALL, ) ) No. 10-CV-4184 Plaintiffs, ) Judge Edmond E. Chang ) Magistrate Judge Geraldine Soat v. ) Brown ) THE CITY OF CHICAGO and ) RICHARD M. DALEY, Mayor of the ) City of Chicago, ) ) Defendants. ) PLAINTIFFS’ RESPONSE TO DEFENDANTS’ MOTION TO EXTEND EXPERT DISCOVERY DEADLINES Plaintiffs Illinois Association of Firearms Retailers, Kenneth Pacholski, Kathryn Tyler, and Michael Hall hereby respond to Defendants’ (the “City’s”) Motion to Extend Expert Discovery as follows: 1. On March 17, 2011, the Court, on the City’s motion, extended the discovery period in this case. In doing so, however, the Court emphasized that “absent the most extraordinary of circumstances, … these [new discovery deadlines] are hard and fast dates.” March 17, 2011 Tr. of Hr’g at 26 (attached as Exhibit A). The City is once again before this Court seeking to extend discovery, this time asking to extend the expert discovery deadlines by 60 additional days. Because the City has failed to identify any “extraordinary circumstances” in support of its motion, it should be denied. 2. Far from extraordinary, the City’s reasons for seeking extra time for expert discovery are in fact quite ordinary, and they at any rate are the consequence of the City’s own actions. Case: 1:10-cv-04184 Document #: 129 Filed: 06/03/11 Page 1 of 4 PageID #:1928 2 According to the City, some of the experts it would like to engage apparently have “prior academic, research and teaching commitments” that may make it difficult for them to prepare an expert report by the June 15 deadline. Doc. No. 126 at 3. But it is hardly noteworthy that certain potential experts may be busy, particularly given that the City has only contacted these experts “over the course of the last several weeks.” Id. The City has had plenty of time to contact potential experts, and it should not be excused for waiting until the last several weeks to do so: Plaintiffs filed this lawsuit 11 months ago, and the City’s opportunity to develop expert support for its ordinance extends even further back in time because, as this Court recognized, “the City relied on experts in fashioning its legislation.” March 17, 2011 Tr. of Hr’g at 18. Indeed, the City itself acknowledges that it had been considering which experts to contact “long before” it got around to doing so. Doc. No. 126 at 3. The City is thus effectively asking this Court to reconsider its March 17 order, which rejected the City’s proposed four-month extension in favor of a two-month extension, on the basis not of extraordinary circumstances but of little more than its own delay in contacting potential experts. Compare Doc. No. 95 at 2 (requesting extension of expert discovery to October 1, 2011), with Doc. No. 126 at 1 (requesting extension of expert discovery to September 30, 2011).1 3. The City raises the possibility that if its motion is not granted it may not be able to proceed with “the experts of [its] choice.” Doc. No. 126 at 3. But unlike the fundamental right 1 The City also claims that the experts it has contacted desire additional time to review the depositions and documents produced during the last several weeks of fact discovery before drafting their expert reports. Doc. No. 126 at 3. But this does not constitute an extraordinary circumstance justifying an extension of discovery, as the Court and the parties plainly contemplated that fact discovery would extend through the fact discovery period. At any rate, because the vast majority of the witnesses deposed and documents produced over the past several weeks have been put forward by the City, the City could have made these resources available to potential experts at an earlier date. Case: 1:10-cv-04184 Document #: 129 Filed: 06/03/11 Page 2 of 4 PageID #:1929 3 to keep and bear arms, there is no constitutional protection for litigating with the expert of one’s choice. See March 17, 2011 Tr. of Hr’g at 15 (“the Supreme Court tells us there is a Constitutional right to possess a firearm for one’s self-defense, and that is a significant interest”). And every day that discovery is extended in this matter is another day the City’s ordinance infringing Plaintiffs’ Second Amendment rights remains on the books. 4. For these reasons, the City’s Motion to Extend Expert Discovery Deadlines should be denied. Dated: June 3, 2011 Respectfully submitted, Stephen Kolodziej Atty. ID # 6216375 BRENNER FORD MONROE & SCOTT LTD. 33 N. Dearborn St., Suite 300 Chicago, IL 60602 Tel: (312) 781-1970 Fax: (312)781-9202 Email: skolodziej@brennerlawfirm.com /s/ Charles J. Cooper Charles J. Cooper* David H. Thompson* Peter A. Patterson* COOPER & KIRK, PLLC 1523 New Hampshire Ave., NW Washington, D.C. 20036 Tel: (202) 220-9600 Fax: (202) 220-9601 Email: ccooper@cooperkirk.com *Admitted pro hac vice. Counsel for Plaintiffs Case: 1:10-cv-04184 Document #: 129 Filed: 06/03/11 Page 3 of 4 PageID #:1930 4 CERTIFICATE OF SERVICE I, Charles J. Cooper, hereby certify that on this 3rd day of June, 2011, I caused a copy of the foregoing to be served by electronic filing on: Michael A. Forti Mardell Nereim Andrew W. Worseck William Macy Aguiar Rebecca Alfert Hirsch City of Chicago, Department of Law Constitutional and Commercial Litigation Division 30 N. LaSalle St., Suite 1230 Chicago, IL 60602 Craig Woods Ranjit Hakim MAYER BROWN LLP 71 S. Wacker Drive Chicago, IL 60606-4637 /s/ Charles J. Cooper Charles J. Cooper Case: 1:10-cv-04184 Document #: 129 Filed: 06/03/11 Page 4 of 4 PageID #:1931