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Case 3:09-cv-00133-DRH-PMF Document 53 Filed 11/19/10 Page 1 of 10 Page ID #764

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

Plaintiff,

vs.

BETTY D. COOK,

)
)
)
)
)
)
ILLINOIS DEPARTMENT OF CORRECTIONS,)
)
)

Defendant.

No. 09-CV-133-DRH

RESPONSE TO ORDER TO SHOW CAUSE

NOW COMES respondent, Joanna Belle Gunderson, by and through her counsel,

LISA MADIGAN, Attorney General for the State of Illinois, and hereby responds to this

Honorable Court’s Order to Show Cause, stating:

I. FACTS

This matter arises in an action alleging a violation of the Age Discrimination in Employment

Act of 1967 (29 U.S.C. § 621 et seq.). On February 26, 2010, the deposition of Ann Casey

was taken via teleconference by plaintiff’s attorney Thomas O. Falb. Counsel for the

defendant, Illinois Department of Corrections, was also present. (See Exhibit A at pp. 1-2.)

Ms. Casey was not subpoenaed, and she appeared voluntarily for the deposition from New

Mexico at the request of respondent. See Exhibit B. During the deposition, respondent

objected and instructed Ms. Casey not to answer certain questions. See Exhibit A, pp. 70-

72. The Court has ordered respondent to show cause why she should not be held in

contempt of court for that instruction.

In addition to representing the Department of Corrections, respondent represented Casey

in her deposition. See Exhibit A, pp. 6, 8; Exhibit B. Respondent objected repeatedly to

intrusive personal questions asked of Casey. See Exhibit A, pp. 70-72. Those questions

Case 3:09-cv-00133-DRH-PMF Document 53 Filed 11/19/10 Page 2 of 10 Page ID #765

related to Casey’s personal relationships with persons who had nothing to do with the

personnel transactions that gave rise to this case. See Exhibit A, pp. 70-72. Respondent

and her client believed that the deposition was being unreasonably conducted in a manner

calculated to annoy or embarrass Casey. See Exhibit A, pp. 70-72; Exhibit B. In response

to questions about Casey’s intimate relationship with a legislator, respondent objected and

suggested that the parties call the Court to resolve their dispute. See Exhibit A, p. 70.

Plaintiff’s counsel rejected the suggestion that the parties call the Court. See Exhibit A, p.

70. Thereafter, respondent advised her client not to answer certain questions related to her

relationship with the legislator. See Exhibit A, pp. 70-72.

II. ARGUMENT

A.

PLAINTIFF FAILED TO ATTEMPT TIMELY RESOLUTION

During the deposition of Casey, respondent suggested that the parties contact the Court.

This is in accordance with the orders of the Court. Hon. Philip M. Frazier is the Magistrate

Judge assigned to this case. The U.S. District Court for the Southern District has a website

which includes a web page for Judge Frazier. See http://www.ilsd.uscourts.gov/frazier.html

(last visited Nov. 18, 2010). On that web page, Judge Frazier addresses discovery

disputes and explains that, once a case is at issue, counsel will receive an Order

Regarding Discovery. Id. On May 5, 2009, the Court entered such an Order in the case

at bar:

ORDER REGARDING DISCOVERY: Discovery disputes which cannot be
resolved through informal means pursuant to Federal Rule of Civil Procedure
37 shall be handled in the following manner. The party seeking the
discovery shall be responsible for arranging for a prompt telephone
conference with the Court and opposing counsel, first by contacting Karen
Metheney, Courtroom Deputy to Judge Frazier, at 618-439-7754. If written
discovery is involved, the disputed portion(s) shall be faxed to the Court prior

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to the telephone conference. Motions to Compel discovery and/or for
appropriate sanctions shall be presented orally at the telephone conference.
Written motions to compel or legal memoranda will not be accepted unless
specifically requested by the Court. Expense of the call will be borne by the
non-prevailing party. Signed by Magistrate Judge Philip M. Frazier on
5/5/2009. (krm)THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO
FURTHER DOCUMENTATION WILL BE MAILED.

Not only does this order require that discovery disputes be settled through

conference calls, rather than motions to compel, authority more directly relevant to this

case is found in Judge Frazier’s standing order. The webpage states: “Disputes which

arise during depositions should be addressed immediately via a phone conference. My

chambers’ number is (618) 439-7750.” (emphasis in original). In accordance with this

provision, respondent suggested that the parties call the Court to resolve their dispute

during the deposition. Plaintiff’s counsel declined to follow the procedure mandated by

Judge Frazier’s order.

Respondent is now aware that, under Rule 30 of the Federal Rules of Civil

Procedure, it was incorrect for her to have continued with the deposition while instructing

the witness not to answer. Redwood v. Dobson, 476 F.3d 462 (7 Cir. 2007). Subsection

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(c)(2) of Rule 30 provides in pertinent part that “[a] person may instruct a deponent not to

answer only when necessary to preserve a privilege, to enforce a limitation ordered by the

court, or to present a motion under Rule 30(d)(3).” Fed. R. Civ. P. 30(c)(2) (West 2010).

Subsection (d)(3)(A) of Rule 30 provides in part that, “[a]t any time during a deposition, the

deponent or a party may move to terminate or limit it on the ground that it is being

conducted in bad faith or in a manner that unreasonably annoys, embarrasses, or

oppresses the deponent or party.” Fed. R. Civ. P. 30(d)(3)(A) (West 2010). The correct

remedy, as respondent now realizes was to insist on a call to the Court to resolve the

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dispute or to file a motion to terminate or limit the deposition.

Respondent repeatedly objected or otherwise registered her concern to opposing

counsel when his questioning reached into areas the respondent found objectionable. See

Exhibit A pp. 5-7; 18-21; 61-63; 68-69. Respondent also repeatedly gave opposing

counsel the opportunity to explain the relationship of his line of questioning to his client’s

age discrimination claim so as to possibly assuage her concerns. See Exhibit A pp. 5-7;

18-21; 61-63; 68-69. Their dispute ultimately resulted in the following exchange:

Q:

Did you stay at Grandberg’s house that night?

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MS. GUNDERSON: I’m going to object to that as being personal and
irrelevant, and unless you can tell me what the basis is that is relevant to the
allegations in this case or would lead to the discovery of admissible evidence
in this case, I am inclined to instruct her not to answer.

MR. FALB: Well, because Curtis is good friends with Robert, they are like
two peas in a pod, part of that close-knit group, and this witness was part of
that close-knit group. And anything she did, Robert knew about and vice
versa, and that affected their decision-making process and that affected my
client, and it affects her being truthful.

MS. GUNDERSON: I don’t see how any of that has anything to do with the
age discrimination claims.

MR. FALB: It certainly does, because if I can establish Robert committing
perjury, nobody is going to believe him.

MS. GUNDERSON: That’s a whole another ball of wax, but I don’t see how,
whether or not she had a relationship with Kurt Granberg has anything to do
with bias. She is not even someone who is an actor in this case.

MR. FALB: She – well, he may be an actor. That’s what I’m after. I think
definitely he was an actor, so I think I have a right to do it. If you want to say,
you know, tell her something that’s not privileged, she shouldn’t answer, you
go ahead and do that, because I’m going to take it up in front of the
judge, Joanna. That’s just not right. You can’t do that.

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The transcript spells the name both as Grandberg and Granberg. The correct spelling

is Granberg.

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MS. GUNDERSON: Yes, I can. If it’s personal information that is so far
beyond the scope of what this case is about, you don’t have a right to just
fish around for the sake of fishing, theory or not. If you want to call the
judge, we can call the judge.

MR. FALB: I’m not calling him right now.

MS. GUNDERSON: Then you can file a motion to compel, because I’m not
going to let her testify about her personal life that has nothing to do with this
case.
MR. FALB: This may not even be personal.

MS. GUNDERSON: She has a right --

Q: (BY MR. FALB): Ma’am, did you stay at his house, Grandberg’s house
that night or not?

MS. GUNDERSON: And again, I’m going to object and instruct her not to
answer, because I’m not convinced this has anything relevant to do with this
case, and I feel it’s way too personal of information.

See Exhibit A, pp. 68-70 (emphasis added).

B.

RESPONDENT’S CONDUCT IS NOT PUNISHABLE AS CONTEMPT

“Contempt sanctions come in two forms–criminal and civil.” Federal Trade

Commission v. Trudeau, 579 F.3d 754, 769 (7 Cir. 2009)(hereinafter “Trudeau I”).

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Criminal contempt is punitive to vindicate the authority of the Court. Id. The court’s criminal

contempt power is regulated by statute. In the Matter of Jafree, 741 F.2d 133, 135 (7 Cir.

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1984). The Court’s statutory power to impose criminal contempt is found at 18 U.S.C.

§401 et seq.

The procedure for imposing a criminal contempt sanction is set out in Rule 42 of the

Federal Rules of Criminal Procedure. Rule 42(b) allows a court to summarily impose

contempt where the contemptuous conduct occurs in the presence of the Court. This

procedure allows a court to take action when the contempt “must be punished on the spot

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to maintain the court’s authority.” Federal Trade Commission v. Trudeau, 606 F.3d 382,

386 (7 Cir. 2010)(hereinafter Trudeau II), quoting Mann v. Hendrian, 871 F.2d 51, 52 (7

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Cir. 1989). The power to summarily punish by contempt is limited to cases “in which

immediate punishment is essential to prevent demoralization of the Court’s authority before

the public.” Trudeau II, 606 F.3d at 386. Summary contempt is only proper when the

misconduct occurs in open court, the judge actually observes the misconduct, and the

misconduct actually disturbs the business of the court. Id. The court should otherwise

utilize the procedures in Rule 42(a). Id.

Conduct that violates 18 U.S.C. §401 is a crime and generally the normal criminal

process should be used to prosecute contempt. Trudeau II, 606 F.3d at 385. Rule 42(a)

requires elaborate notice, a prosecutor, and a trial. Trudeau I, 579 F.3d at 769. Under

Rule 42(a), if criminal contempt is contemplated, respondent is entitled to time to prepare

a defense. She should also, in accordance with normal criminal procedures, be given time

to retain counsel who, unlike the undersigned, is familiar with criminal procedure.

In any event, criminal contempt is inappropriate in this case. Criminal contempt has

a scienter requirement and lack of criminal intent may defeat liability. Securities and

Exchange Commission v. McNamee, 481 F.3d 451, 455-56 (7 Cir. 2007). “Criminal

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contempt of court is a dark stain on an attorney’s record, even when it does not lead to

imprisonment or a substantial fine.” United States v. Mottweiler, 82 F.3d 769, 770 (7 Cir.

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1996). “That is among other reasons why a conviction under 18 U.S.C. §401 depends on

proof of wilful misconduct.” Id. See also Gates v. Hernandez, 600 F.3d 333, 342 (7 Cir.

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2010). In the present case, respondent violated a rule of civil procedure of which she

should have been aware. She did not, however, wilfully violate a court order or demean

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Case 3:09-cv-00133-DRH-PMF Document 53 Filed 11/19/10 Page 7 of 10 Page ID #770

the authority of the Court. In fact, she suggested that the parties contact the Court during

the deposition to resolve their dispute and plaintiff’s counsel declined that invitation.

Because respondent did not have the mental state necessary for a finding of

criminal contempt, the Court should decline to impose such a sanction. Alternatively,

respondent requests that she be given notice of the Court’s intent to proceed with criminal

charges and time to prepare a defense.

C.

RESPONDENT SHOULD NOT BE HELD IN CIVIL CONTEMPT

Criminal contempt is punitive to vindicate the authority of the Court. Trudeau I, 579

F.3d at 769. Civil contempt, by comparison, is remedial. Id. Civil sanctions fall into two

categories: to compensate the complainant for losses caused by the contemptuous

conduct or to coerce compliance with a court order. Id. A coercive sanction must allow

the contemnor to purge the contempt and avoid punishment by complying with the court

order. Id.

In the present case, neither sanction is appropriate. There is no court order at issue

and respondent cannot, therefore, be coerced to comply. Furthermore, the questions were

posed to a nonparty and the Court cannot force compliance through sanctions upon an

attorney. Finally, there is nothing to compel, as Casey has answered the questions posed

to her during the deposition through an affidavit attached as Exhibit #2.2

Compensatory sanctions are not appropriate as plaintiff has not incurred any

legitimate expense. The only expense incurred is the cost of preparing the motion to

compel. That motion, however, was filed in violation of Magistrate Judge Frazier’s

2

In answering the questions, Casey missed one question which asked whether she had

ever been to Granberg’s house. The question, is however, answered in the affidavit.

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Case 3:09-cv-00133-DRH-PMF Document 53 Filed 11/19/10 Page 8 of 10 Page ID #771

standing order to attempt to resolve deposition disputes through a conference call during

the deposition. It is also in violation of the scheduling order entered in this case, which

requires that discovery disputes be resolved through conference calls, rather than motions

to compel. The expense would not have been incurred, if counsel had complied with these

orders.

More importantly, respondent is not guilty of contempt. For a finding of civil

contempt, the moving party must establish by clear and convincing evidence that the

opposing party violated a court order. Goluba v. School District of Ripon, 45 F.3d 1035,

1037 (7 Cir. 1995). The elements necessary for a finding of civil contempt are that

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(1) a court order sets forth an unambiguous command; (2) the alleged
contemnor violated that command; (3) the violation was significant, meaning
that the alleged contemnor did not substantially comply with the order; and
(4) the alleged contemnor failed to make a reasonable and diligent effort to
comply.

United States Securities and Exchange Commission v. Hyatt, 621 F.3d 687, 692 (7 Cir.

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2010). See alsoTrudeau I, 579 F.3d at 763.

In the present case, there is no court order with which respondent allegedly failed

to comply. While respondent recognizes that a deposition subpoena is a court order

(Hyatt, 621 F.3d at 692-93), in this case, there was no subpoena requiring Casey to appear

and answer questions. Rather, she was produced voluntarily. Despite the fact that Casey

no longer works for defendant and is not within the subpoena power of the Court,

respondent was able to convince Casey to voluntarily submit to a telephone deposition.

While Rule 30 prohibited respondent from instructing Casey not to answer questions,

Casey was appearing voluntarily and could refuse to answer any questions. Casey could

have insisted that the parties travel to New Mexico and serve her with a legitimate

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Case 3:09-cv-00133-DRH-PMF Document 53 Filed 11/19/10 Page 9 of 10 Page ID #772

subpoena.

Because civil contempt is a means of enforcing the unambiguous orders of the

Court and no order of the Court was violated by respondent in this case, civil contempt is

an inappropriate sanction. This Court should discharge the rule to show cause.

III. CONCLUSION

While the Court did not specify whether civil or criminal contempt is at issue, neither

is appropriate in this case. Respondent violated a rule of civil procedure, but she did not

violate an order of the Court or wilfully obstruct the orderly processes of justice. In fact,

she attempted to facilitate discovery in this case by convincing the witness to voluntarily

appear and suggesting to counsel that the parties call the Court to resolve their dispute

during the deposition.

WHEREFORE for the above and foregoing reasons, respondent respectfully

requests that this honorable Court discharge the rule to show cause and impose no

sanctions.

Terence J. Corrigan, #06191237
Assistant Attorney General
500 South Second Street
Springfield, Illinois 62706
217/782-5819

Of Counsel.

Respectfully submitted,

JOANNA BELLE GUNDERSON,

Respondent,

LISA MADIGAN, Attorney General of the
State of Illinois,

Attorney for Respondent,

By: /s/ Terence J. Corrigan

TERENCE J. CORRIGAN
Assistant Attorney General

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Case 3:09-cv-00133-DRH-PMF Document 53 Filed 11/19/10 Page 10 of 10 Page ID #773

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

Plaintiff,

v.

BETTY D. COOK,

)
)
)
)
)
)
ILLINOIS DEPARTMENT OF CORRECTIONS,)
)
)

Defendant.

No. 09-cv-133-DRH

CERTIFICATE OF SERVICE

I hereby certify that on November 19, 2010, I electronically filed the foregoing with

the Clerk of the Court using the CM/ECF system which will send notification of such filing

to the following:

Thomas O. Falb

[email protected]

and I hereby certify that on November 19, 2010, I mailed by United States Postal Service

the document to the following non-registered participants:

Terence J. Corrigan, #06191237
Assistant Attorney General
500 South Second Street
Springfield, Illinois 62706
217/782-5819

Of Counsel.

None.

Respectfully submitted,

By: /s/ Terence J. Corrigan

TERENCE J. CORRIGAN
Assistant Attorney General